author: WINDOM, Judge.

text:
    Jeffery HATFIELD v. STATE of Alabama.
    CR-08-0403.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.

      Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   WINDOM, Judge.

Jeffery Hatfield challenges his guilty-plea convictions for first-degree rape, a violation of § 13A-6-61(a)(l), Ala.Code 1975, and first-degree burglary, a violation of § 13A-7-5, Ala.Code 1975, and his resulting sentences as an habitual offender to consecutive terms of life in prison. See Ala.Code 1975, § 13A-5-9(a)(3). On November 14, 2006, Hatfield filed a pro se “Motion to Withdraw the Plea of Guilty,” in which he argued, among other things, that he should be allowed to withdraw his guilty pleas because “the penalty or penalties” and “the plea of guilty” were never explained to him and because the circuit court never ascertained whether he entered a voluntary and intelligent guilty plea. (C.R. 99.) On January 8, 2007, Hatfield’s motion was deemed denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P.

On appeal, Hatfield argues that his guilty plea was not knowingly and voluntarily entered. Specifically, Hatfield argues that the circuit court failed to advise him before he entered his guilty plea that his two life sentences could be ordered to run concurrently or consecutively; therefore, his plea is invalid. We agree.

It is well settled that “due process requires that [a guilty] plea be a voluntary, knowing, and intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Smith v. State, 494 So.2d 182, 182 (Ala.Crim.App.1986) (quoting Brady v. United Stales, 897 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). “In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that before a trial court can accept a defendant’s plea of guilty, the trial court must determine that the defendant is entering the plea voluntarily.” Fleming v. Slate, 972 So.2d 835, 836 (Ala.2007). Rule 14.4, Ala. R.Crim. P., requires a circuit court to “ ‘ “conduct a colloquy with the defendant before accepting a guilty plea [to ensure] that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.” ’ ” Brooks v. State, 854 So.2d 643, 645 (Ala.Crim.App.2003) (quoting Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998) (quoting in turn Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996))).

When a defendant faces multiple sentences for multiple crimes, “Rule 14.4(a)(l)(iii), requires that the trial court address a defendant in person to ascertain that the defendant understands the consequences of the plea, including, ‘... the fact that the sentence may run consecutively to or concurrently with [the other] sentence or sentences.’ ” Bozeman v. State, 686 So.2d 556, 558 (Ala.Crim.App.1996). ‘The accused’s right to know the possible sentence he faces is absolute.’ ” Id. at 559 (quoting Henry v. State, 639 So.2d 583, 584 (Ala.Crim.App.1994)). See also Taylor v. State, 846 So.2d 1111, 1113 (Ala.Crim.App.2002) (same). The right to know the possible sentence one faces encompasses the right to know that the circuit court may order multiple sentences to run concurrently or consecutively. Bozeman, 686 So.2d at 558-59; Taylor, 846 So.2d at 1113. Thus, “[t]he record of the plea proceedings must affirmatively reflect sufficient facts” to establish that the defendant was aware that he could be ordered to serve his multiple sentences consecutively. Blankenship v. State, 770 So.2d 642, 643 (Ala.Crim.App.1999). Otherwise, the record will be insufficient to establish that the defendant knowingly and voluntarily pleaded guilty as required under Boykin. See Fleming v. State, 972 So.2d at 836 (holding that the record must establish that a defendant’s guilty plea was knowingly and voluntarily made and that the circuit court complied with Rule 14.4, Ala. R.Crim. P.); Johnson v. State, 680 So.2d 1005, 1008 (Ala.Crim.App.1996) (holding that “the record must show that the appellant knowingly, intelligently, and voluntarily entered a plea of guilty”); Bozeman, 686 So.2d at 558-59 (holding that the circuit court’s failure to inform the defendant of the possibility that his sentences would run consecutively rendered the pleas invalid); Taylor, 846 So.2d at 1113 (same).

Although Hatfield was properly informed of the sentencing ranges that he faced for first-degree rape and first-degree burglary, the court failed to inform Hatfield that his sentences could be ordered to run consecutively as required by Rule 14.4, Ala. R.Crim. P, and this court’s holdings in Bozeman, 686 So.2d at 558-59, and Taylor, 846 So.2d at 1113. (R. 5-6.) Further, the record is devoid of any indication that Hatfield was aware that his sentences could run consecutively as required to enter a knowing and voluntary guilty plea. Bozeman, 686 So.2d at 558-59; Taylor, 846 So.2d at 1113.

Because the record fails to establish that Hatfield was advised that consecutive sentences might be imposed, this court cannot conclude that Hatfield’s pleas were entered knowingly and voluntarily. Taylor, 846 So.2d at 1113. Consequently, the circuit court’s denial of Hatfield’s motion to withdraw his guilty pleas must be reversed and the cause remanded for further consideration consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.

      . "Rule 14.4(a)[, Ala. R.Crim. P.,] requires a full colloquy to ensure that the defendant fully understands the meaning of his plea and its consequences.” Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994).

      . The circuit court is not required to inform the defendant whether his sentence will be ordered to run concurrently or consecutively; instead, it is only required to inform the defendant of the possibility of concurrent or consecutive sentences. Bozeman, 686 So.2d at 559.


source: Caselaw Access Project

author: MAIN, Judge.

license: Public Domain

text:
    Jennifer Leigh GANN v. CITY OF GULF SHORES.
    CR-07-1765.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Jule R. Herbert, Jr., Gulf Shores, for appellant.
    Frank Turner Hollon, Robertsdale, for appellee.
   MAIN, Judge.

Jennifer Leigh Gann appeals her conviction of violating a Gulf Shores city ordinance that prohibits smoking in enclosed public places. She filed a motion to dismiss the charge in the Gulf Shores Municipal Court, wherein she alleged that the ordinance was unconstitutional. Her motion was denied and she was convicted. She appealed to the Baldwin Circuit Court for a trial de novo. Gann filed a pretrial motion in the circuit court to dismiss the charge, repeating her claim that the ordinance was unconstitutional. The City of Gulf Shores filed its response. Her motion was denied, and a bench trial was set. Gann and the prosecutor for the City of Gulf Shores entered into a joint stipulation agreement as to the following facts: the ordinance in question is Ordinance no. 1478; Gann was “smoking” as the ordinance describes the term; Gann was smoking in a public place as defined by the ordinance; and Gann was smoking in After Hours, “a ‘bar’ as defined in Section no. 3 of Ordinance no. 1478. Said definition is essentially the same as the definition of ‘bar or lounge’ in Code of Alabama [§ ] 22-15A-3.” (C. 120.) After this stipulation was presented to the circuit court, Gann’s motion for a judgment of acquittal was denied and she was found guilty. Gann was fined $50 and ordered to pay court costs. Gann appealed.

Gann argues that Ordinance no. 1478 is unconstitutional on its face because, she says, it allows the City of Gulf Shores to exceed its police powers under the laws regarding public nuisance. Moreover, Gann argues that the ordinance conflicts with the Alabama laws set out in the “Alabama Clean Indoor Air Act,” § 22-15A-1 et seq., Ala.Code 1975. She also submits that the Alabama Clean Indoor Air Act violates § 89, Ala. Const.1901.

Specifically, Gann alleges that this ordinance was not designed to protect the public health but rather to allow the City of Gulf Shores to use its police power to “bully” citizens (Gann’s reply brief, at 9), by using “ ‘junk science’ to draw far reaching conclusions” concerning the risks of exposing nonsmokers to smoking in certain specified situations. (Gann’s brief, at 10.) Gann further argues that Ordinance no. 1478 attempts to expand the ban against public nuisances to abrogate private-property rights by including all privately owned property in the City of Gulf Shores other than those public places that are specifically exempted from the ordinance. She argues that this attempt to govern a citizen’s rightful use of her private property is an unconstitutional usurpation of power, in violation of §§ 2, 35, and 36, Ala. Const.1901. Finally, Gann alleges that the ordinance conflicts with the general law in the State of Alabama in that the Alabama Clean Indoor Air Act was passed to address the issue of secondhand smoke and specifically exempts from its provisions bars and lounges, hotel and motel rooms that are not designated as nonsmoking, limousines under private hire, and retail tobacco stores. Thus, she argues, the ordinance conflicts with the Clean Indoor Air Act.

Here, because the parties stipulated to the facts, only questions as to the application of the law remained for the trial court’s determination, and only questions concerning the application of the law to the stipulated facts are presented to this Court. “Questions of law are reviewed de novo.” Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004). The standard of review in a case involving the health, safety and welfare of its citizens, as is the stated purpose of Ordinance no. 1478 (C. 121), was addressed in State v. Clayton, 492 So.2d 665 (Ala.Crim.App. 1986), which reviewed a health-regulation statute enacted under the State’s police power. This Court stated:

“ ‘The prevention of disease and conservation of health ... is universally recognized as one of the most important and imperious duties of government, and in the construction of statutes enacted for such a purpose, under the police powers of the state, courts are agreed that great latitude should be allowed to the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied.’ Parke v. Bradley, 204 Ala. at 456, 86 So. at 29.

“In reviewing the constitutionality of a health measure, the central issue is reasonableness, Ross Neely Express, Inc. v. Alabama Dep’t of Environmental Management, 437 So.2d 82, 84 (Ala.1983).

“ ‘While it has been recognized that the preservation of the public health is one of the prime duties of the state or municipality, and thus the enactment or enforcement of necessary and reasonable health laws and regulations is a legitimate exercise of police power inherent in the state or municipality, when the validity of any health i-egulation is questioned the test adhered to by the courts is whether the regulation has some actual or reasonable relation to the maintenance and promotion of the public health, and whether health is in fact the end sought to be attained.’ State ex rel. Furman v. Searcy, 225 So.2d 430, 433 (Fla.Dist.Ct.App.1969.) (Emphasis in original.)”

492 So.2d at 667. See also Beard v. State, 627 So.2d 1122, 1127 (Ala.Crim.App.1993) (affirming the principle that a constitutional limitation on the regulation of private property in the interest of public health “comes down to a question of ‘reasonability’ ” and, if an individual’s rights run afoul of the exercise of this power to regulate, “ ‘the right of the individual must yield’ ”).

“Furthermore, when this Court construes a statute that is intended to protect the public health, ‘ “great latitude should be allowed to the Legislature in determining the character of such laws, and how, when, and by whom, in their practical administration, they should be applied.” ’ State v. Clayton, 492 So.2d 665, 667 (Ala.Cr.App.1986), quoting Parke v. Bradley, 204 Ala. 455, 456, 86 So. 28 (1920). Because one of the purposes of the Act is to protect the public health, the legislature, in selecting a method to guide the counties in policing this public interest, will be accorded great latitude by this Court.”

Ex parte Lauderdale County, 565 So.2d 623, 627 (Ala.Civ.App.1990).

Gann is not entitled to any relief on her first argument, i.e., that the City of Gulf Shores improperly exercised its police power in enacting Ordinance no. 1478 under a false guise of a health regulation, when the real purpose was to abrogate private property, stretching public nuisance beyond its intended goal. Gann was only an employee of the After Hours bar and never claimed or proved that she had any ownership rights in the properiy on which the bar was located. Thus, she does not have standing to raise the argument that the ordinance’s interference with the property rights associated with this establishment.

In its response to Gann’s pretrial motion to dismiss, the City of Gulf Shores argued that she lacked standing to raise any of her claims of the unconstitutional use of the police power and the extension of the doctrine of public nuisance by the City of Gulf Shores through this ordinance. The prosecutor for the City of Gulf Shores stated in its response:

“3. [Gann] lacks standing to assert, therefore this Court lacks subject matter jurisdiction to hear, [Gann’s] claims in Section One of her Motion to Dismiss. [Gann] argues that ‘the property right of a proprietor to operate his business and regulate the use of his property under the principles of self government is simply negated; sacrificed not to prevent a conflict of the rights of others, but supposedly to promote a remote and highly problematic risk of some future evil.’ ([Gann’s] Brief at 1, emphasis added).
“4. [Gann] has neither alleged nor established that she is the owner of After Horn's, Inc., the property on which After Hours, Inc. sits, or the building in which After Horn's, Inc. operates; therefore [Gann] lacks standing to assert any claims on behalf of the proprietor.”

(C. 28.) Included in the caselaw cited by the prosecutor in support of this argument is the following quote from Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253 (Ala.2004):

“ ‘To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.’ Doremus v. Business Council of Alabama Workers’ Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala.1996). ‘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))(emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003) (‘The power of the judiciary ... is “the power to declare finally the rights of the parties, in a particular case or controversy (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala.1998))); Allen v. Wright, 468 U.S. 737, 752 (1984) (‘[T]he law of Art. III standing is built on a single basic idea — the idea of separation of powers.’).
“In Jones v. Black, 48 Ala. 540 (1872), this court first articulated a test for determining whether a party has the necessary standing to challenge the constitutionality of an act of the Legislature. We stated then:
“ ‘A party who seeks to have an act of the legislature declared unconstitutional, must not only show that he is injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.’

48 Ala. at 543. In Alabama Alcoholic Beverage Control Board v. Henri-Duval Winery, LLC, 890 So.2d 70, 74 (Ala.2003), a party challenged the constitutionality of Alabama’s Native Farm Winery Act, § 28-6-1 et seq., Ala.Code 1975. In that case, this court effectively restated the standard articulated in Jones, using language adopted from the Supreme Coui’t of the United States:

“ A party establishes standing to bring a challenge [on constitutional gi'ounds] when it demonstrates the existence of (1) an actual, concrete and particularized “injury in fact’’ — “an invasion of a legally protected intei’-est”; (2) a “causal connection between the injury and the conduct complained of’; and (3) a likelihood that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).’ ”

Town of Cedar Bluff, 904 So.2d at 1256-57 (footnote omitted). See also State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala.1999) (holding that, if the party who commences the action does not have standing, then the trial court acquires no subject-matter jurisdiction).

Because there is no indication in the l-ecord or any allegation by Gann that she had any property interest in After Hours, Inc., the entity that owns and opei’ates the After Hours bar, or to refute the City of Gulf Shores’ argument that she lacks standing, she is not entitled to any relief on this claim.

Gann also argues that Ordinance no. 1478 is unconstitutional because, she says, it conflicts with state law, specifically the Alabama Clean Indoor Air Act. § 22-15A-1 et seq., Ala.Code 1975. She argues that because the Alabama Clean Indoor Air Act specifically exempts bars and lounges from the pi’ohibition in that act against smoking in a public place, it should override the provisions of the ordinance, because the Act established “ ‘a positive right’ which cannot be negated by the City’s Ordinance.” (C. 11.) She also argues that the Clean Indoor Air Act violates § 89, Ala. Const.1901, to the extent that the Act authorizes cities to prohibit smoking in bars and lounges. Section 89 provides: “ ‘The legislator shall not have power to authorize any municipal corporation to pass any laws inconsistent with the genei’al laws of this state.’ ” (C. 11.)

The exemptions to the Alabama Clean Indoor Air Act set out at § 22-15A-4(a), ax*e as follows:

“No pei’son shall smoke in a public place or at a public meeting except as otherwise pi’ovided in this subsection and in Section 22-15A-7. This prohibition does not apply in any of the following places:
“(1) Bars and lounges.
“(2) Retail tobacco stores and tobacco businesses.
“(3) Limousines used under pi’ivate hire by an individual or corporation.
“(4) Hotel and motel rooms irnted to guests, except for those rooms designated by the hotels and motels as ‘no smoking’ rooms.”

Despite Gann’s contentions, the provisions of Ordinance no. 1478 do not conflict with the Alabama Clean Indoor Air Act and, therefore, the Act does not run afoul of § 89, Ala. Const.1901.

“ ‘ “ ‘Whether an oi’dinance is inconsistent with the genei'al law of the State is to be determined by whether the municipal law prohibits anything which the State law specifically permits.’ ” ’ Gibson v. City of Alexander City, 779 So.2d 1153, 1155 (Ala.2000) (quoting Lanier v. City of Newton, 518 So.2d 40, 43 (Ala.1987), quoting in turn Congo v. State, 409 So.2d 475, 478 (Ala.Crim.App.1981)). In Lanier v. City of Newton, this Court addressed ‘inconsistency’ with regard to a conflict between a statute and an ordinance, stating: ‘ “Inconsistent” is defined by Black’s Law Dictionary (5th ed.1979) as “mutually repugnant or contradictory; contrary, the one to the other, so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other.” It implies “contradiction — qualities which cannot coexist— not merely a lack of uniformity in details.” City of Montgomery v. Barefield, 1 Ala.App. 515, 523, 56 So. 260, 262 (1911).’ 518 So.2d at 43.
“In Gibson, supra, a café owner brought an action challenging the city’s authority to adopt an ordinance restricting the sale of alcoholic beverages between midnight and 7 a.m., where the café owner had a license issued under the statutory provisions of the Alcoholic Beverage Licensing Code that allowed him to sell liquor 24 hours a day, 6 days a week. This Court held that the City’s ordinance merely enlarged upon the statutory provisions of the Alcoholic Beverage Licensing Code and that it was not inconsistent with Alabama statutory law.
“In City of Montgomery v. Barefield, 1 Ala.App. 515, 56 So. 260 (1911), the court examined an alleged conflict between a city ordinance and statutes regarding work on public roads, which provided that all residents of a municipality over the age of 45 were exempt from road duty and that the inhabitants of a municipality were exempt from woi’king on the roads outside the municipality but could be required to pay a street tax for maintenance and construction of the streets within the municipality. The city passed an ordinance that imposed an annual street tax on all residents between the ages of 21 and 45 and required those failing to pay the annual street tax to work the roads in the city. The appellate court held that the ordinance and the statutes were not in conflict, stating:
“‘The ordinance in question strikes down the provisions of no general law, is not repugnant to it, does not infringe its spirit, and is not in contravention of or in conflict with the operation or enforcement of the general law relating to the performance of road duty. The laws are not contradictory of nor repugnant to each other; they may both coexist and be enforced at the same time, without dependence one upon the other. Each has a separate field of operation in which it may be enforced. The city law specifies no particular persons as exempt, and makes a somewhat different class liable to the payment of street tax than are liable to the performance of road duty under the provisions of the law requiring persons to work the roads, but the constitutional requirement is not for conformity in the laws; it is that they shall not be inconsistent, and inconsistent implies contradiction — qualities which cannot coexist — not merely a lack of uniformity in details.’
1 Ala.App. at 523, 56 So. at 263. In City of Mobile v. Collins, 24 Ala.App. 41, 130 So. 369 (1930), the appellate court held that a city ordinance levying a street tax on men between the ages of 21 and 60 was not inconsistent with the same statutes at issue in Barefield.
“In Congo v. State, supra, a criminal defendant argued that a municipal ordinance charging the offense with which he was charged — drunkenness on any street or other public place — was in conflict with a State statute providing that a person commits the crime of public intoxication if he appears in public under the influence to the degree that he endangers himself or another or his boisterous or offensive conduct annoys another person. Specifically, the defendant contended that the city ordinance was in conflict with the statute, and was therefore unconstitutional, because, he argued, the city ordinance prohibited merely being in a state of drunkenness whereas the statute required some manifestation of endangering or annoying conduct in addition to the intoxication. The Court of Criminal Appeals held that the city ordinance did not contravene a State statute and that it did not prohibit something the State statute affirmatively allowed.
“In the present case, Alabama Recycling contends that the ordinance and the Act are in conflict because the Act permits cash purchases of copper for up to $100 and up to $1,000 for other metals and the ordinance prohibits any cash transactions for copper. The Act prohibits a metals recycler from purchasing copper with cash if the transaction is over $100, while the ordinance expands the cash prohibition to all transactions for the purchase of copper. The Act does not ‘specifically permit’ cash purchases of copper at or below $100 in value. It simply does not regulate such purchases. The fact that the Act does not regulate purchases of $100 or less does not create a conflict with the ordinance, which does regulate such purchases. In other words, the Act does not prohibit payment by check for purchases of copper under $100. This portion of the ordinance does not conflict with the statute because the ordinance enlarges upon the provisions of the Act by adding certain restrictions.”

Alabama Recycling Ass’n v. City of Montgomery, 24 So.3d 1085, 1088-90 (Ala.2009).

In the present case, Ordinance no. 1478 does not include provisions that could not coexist -with the Alabama Clean Indoor Air Act or that would require the abrogation or abandonment of the Act. Both the ordinance and the Act are established for the same purpose and follow the same basic guidelines for enforcement and implementation; the penalty for violations of each are also similar. The ordinance and the Act differ only as to details.

“Municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances.”

§ 11-45-1, Ala.Code 1975.

In Plump v. City of Birmingham, 385 So.2d 1349 (Ala.Crim.App.1980), Plump argued that an ordinance prohibiting public intoxication conflicted with the statute proscribing the same, because the ordinance added language disallowing “ ‘staggering, falling, or sleeping’ ” while intoxicated in public. 385 So.2d at 1350. Although the statute listed as manifestations of intoxication only: “ ‘boisterous or indecent conduct or loud and profane conduct,’ ” the addition of the “staggering, falling, or sleeping” language in the ordinance created no conflict with the statute. Id. In so holding, this Court stated:

“An ordinance which merely enlarges upon the provisions of the statute on the subject by the requirement of more restrictions than the statute requires creates no conflict unless the statute limits the requirement for all cases to its own prescription. City of Birmingham v. West, 236 Ala. 434, 183 So. 421, 423 (1938); Smith v. Town of Notasulga, 257 Ala. 382, 59 So.2d 674 (1952); State v. Centanne, 265 Ala. 35, 89 So.2d 570 (1956); Moon v. State, 48 Ala.App. 127, 262 So.2d 615 (1972).”

385 So.2d at 1350. Just as the ordinance in Plump merely added certain behaviors that manifest public intoxication or drunkenness, the ordinance in the present case merely adds forums to the prohibition of smoking. This addition does not conflict with the subject or purpose of the State law. Section 22-15A-10, Ala.Code 1975, a part of the Alabama Clean Indoor Air Act, provides that “[njothing in this chapter shall be construed to restrict the power of any county, city, town, or village to adopt and enforce local laws, ordinances, or regulations that comply with at least the minimum applicable standards set forth in this chapter.” This provision, which we earlier in this opinion held did not run afoul of § 89, Ala. Const. 1901, because it did not authorize the passing of any laws inconsistent with the laws of Alabama, clearly authorized the City of Gulf Shores to enact Ordinance no. 1478.

Similarly, in Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008), after the South Carolina Legislature passed its version of the Clean Indoor Air Act, the City of Greenville sought “to more comprehensively regulate smoking in public places.” 377 S.C. at 359, 660 S.E.2d at 266. Therefore, the ordinance prohibited smoking in: “(1) all enclosed public places, including bars and restaurants; (2) places of employment; and (3) certain outdoor areas, such as stadiums and zoos.” 377 S.C. at 360, 660 S.E.2d at 266. South Carolina’s Clean Indoor Air Act had listed: “(1) public schools; (2) daycare centers; (3) health care facilities; (4) government buildings; (5) elevators; (6) public transportation vehicles; and (7) public performing arts centers.” 377 S.C. at 359, 660 S.E.2d at 266. The South Carolina Supreme Court held that the ordinance was not preempted by state law and that it did not violate the State Constitution or the general law of South Carolina. The Court stated:

“To preempt an entire field, ‘an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way.’ Bugsy’s[, Inc. v. City of Myrtle Beach], 340 S.C. [87] at 94, 530 S.E.2d [890] at 893 [2000] (citing Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. 550, 397 S.E.2d 662 (1990)). Furthermore, ‘for there to be a conflict between a state statute and a municipal ordinance “both must contain either express or implied conditions which are inconsistent or irreconcilable with each other .... If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand.” ’ Town of Hilton Head Island v. Fine Liquors, Ltd., 302 S.C. at 553, 397 S.E.2d at 664 (quoting McAbee v. Southern Rwy., Co., 166 S.C. 166, 169-70, 164 S.E. 444, 445 (1932)).”

Foothills Brewing Concern, Inc., 377 S.C. at 361, 660 S.E.2d at 267.

Because Ordinance no. 1478 does not conflict with the Alabama Clean Indoor Air Act, because the Act does not violate § 89 of the Alabama Constitution, and because Gann had no standing to assert the abrogation of private property rights by the City of Gulf Shores’ use of its police power through the ordinance, the circuit court properly denied Gann’s motion to dismiss and her motion for judgment of acquittal. Based on the foregoing, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . The response to the motion to dismiss was filed on March 12, 2008, preceding Gann's motion to dismiss, which was filed on April 16, 2008. However, Gann's motion filed in the Baldwin Circuit Court was a verbatim copy of the motion to dismiss she had filed in the Gulf Shores Municipal Court.

      . Under section 9 of Ordinance no. 1478, the following areas are exempted from the prohibition against smoking: private residences, except if the residence is used as a licensed day-care, adult-day-care, or health-care facility; motel and hotel rooms designated as smoking; retail tobacco stores; private and semiprivate rooms in nursing homes and long-term-care facilities wherein all the occupants of the room are smokers; outdoor areas of places of employment except certain outdoor arenas and stadiums; all beaches, public or private; and outdoor areas of restaurants, including porches, decks, verandas, and serving areas that are not covered or enclosed. Most of these exemptions apply only where smoke does not infiltrate into areas in which smoking is prohibited.

      . In fact, the record contains an affidavit of Pam Welsh, which was attached as Exhibit A to Gann’s pretrial motion to dismiss filed in the Baldwin Circuit Court, in which Welsh affirms that she is "the sole shareholder, director, and officer” of After Hours, Inc., the entity that owns and operates the After Hours bar. (C. 63).

      . Ordinance no. 1478 in section 15 states that a violation of the ordinance is a misdemeanor that results in a fine not to exceed $50; a violation of the Alabama Clean Indoor Air Act is to be treated in the district or the municipal court and carries a fine of $25 for each violation. § 22-15A-9, Ala.Code 1975.


text:
    Roy Lavorn CLARK v. STATE of Alabama.
    CR-07-1705.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   WINDOM, Judge.

Roy Lavorn Clark appeals his conviction for first-degree theft of property, a violation of § 13A-8-3, Ala.Code 1975, and his resulting sentence of five years in prison. Pursuant to a negotiated agreement, Clark stipulated that the State could prove a prima facie case of first-degree theft of property against him. Specifically, Clark stipulated that the State could prove that he stole athletic jerseys valued at $22,000.

In exchange for Clark’s stipulation, the State agreed that Clark would be placed on “good behavior” status for 18 months and that the following terms applied: 1) if Clark paid $22,000 in restitution within the 18-month “good behavior” period, the State would dismiss the charge against him; 2) if Clark paid less than $22,000 but more than $11,000, he would be convicted of and sentenced for third-degree theft of property, a violation of § 13A-8-5, Ala. Code 1975; and 3) if Clark failed to pay at least $11,000, he would be convicted of and sentenced for first-degree theft of property, a violation of § 13A-8-3, Ala.Code 1975.

In compliance with the agreement, the circuit court abstained from formally adjudicating Clark guilty, and Clark was given 18 months in which to pay restitution to the victim in the amount of $22,000. After Clark failed to pay at least $11,000 during his 18-month “good behavior” period, the circuit court adjudicated him guilty of first-degree theft of property based upon his earlier stipulation. The circuit court also sentenced Clark to serve five years in prison and ordered him to pay $22,000 in restitution.

On appeal, Clark argues that the circuit court’s adjudication of guilt must be reversed because the record does not reflect that his decision to stipulate to a prima facie case of first-degree theft of property and his agreement to be adjudicated guilty upon noncompliance with the “good behavior” agreement was made knowingly and voluntarily. Specifically, Clark contends that, although he did not enter a formal guilty plea, his stipulation to the State’s ability to prove a prima facie case was in essence a guilty plea; therefore, the circuit court’s failure to comply with the requirements set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 14.4, Ala.R.Crim. P., invalidates his stipulation and requires that his conviction be reversed. We agree.

Clark’s stipulation that the State could prove a prima facie case of first-degree theft of property against him and his agreement to be adjudged guilty and sentenced if he failed to comply with the terms of the “good behavior” agreement was the functional equivalent of a guilty plea. “ ‘A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need b[e] advanced .... It supplies both evidence and verdict, ending controversy.’ ” Boykin, 395 U.S. at 243 n. 4, 89 S.Ct. 1709 (quoting Woodard v. State, 42 Ala.App. 552, 171 So.2d 462, 469 (1965)). See also Dingier v. State, 408 So.2d 530, 531 (Ala.1981) (same).

In the case at hand, Clark entered into a “good behavior” stipulation that the State could prove a prima facie case of guilt. When Clark failed to comply with the terms of the agreement, he was adjudicated guilty based on his stipulation. During a hearing on Clark’s motion for a new trial, the prosecutor described a “good behavior” stipulation in Mobile County as follows: “[Wjhen stipulating on a good behavior, if you violate the agreement you’ve entered into ..., it’s as if you’ve been found guilty and [the court simply] impose[s] sentence.” (R. 10.) The circuit court agreed with the prosecutor’s description. Id. Thus, when Clark failed to comply with the terms of the “good behavior” agreement, his stipulation was “itself a conviction [and] nothing remain[ed] but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)(eiting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)). See also Ex parte Howard, 710 So.2d 460, 465 (Ala.1997) (same); see also State v. Alien, 220 Ariz. 430, 207 P.3d 683, 687 (Ct.App.2008) (holding that a defendant’s stipulation to the facts establishing guilt was the functional equivalent of guilty plea). But cf. Perkins v. State, 808 So.2d 1041, 1098 (Ala.Crim.App.1999), overruled on other grounds, Perkins v. Alabama, 586 U.S. 953, 122 S.Ct. 2653, 153 L.Ed.2d 830 (2002) (holding that a defendant’s strategic stipulation to certain facts of the crime was not the functional equivalent of a guilty plea where the defendant’s stipulation did not establish guilt). Because Clark was adjudicated guilty based solely on his stipulation, his stipulation was the functional equivalent of a guilty plea.

Accordingly, the standards applicable to guilty pleas apply to Clark’s stipulation. “[D]ue process requires that [a guilty] plea be a voluntary, knowing, and intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” Smith v. State, 494 So.2d 182, 182 (Ala.Crim.App.1986) (quoting Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). “In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court held that before a trial court can accept a defendant’s plea of guilty, the trial court must determine that the defendant is entering the plea voluntarily.” Fleming v. State, 972 So.2d 835, 836 (Ala.2007). In order to ensure that a defendant’s plea is entered knowingly and voluntarily, Rule 14.4, Ala.R.Crim. P., requires a circuit court to “ ‘ “conduct a colloquy with the defendant before accepting a guilty plea [to ensure] that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.” ’ ” Brooks v. State, 854 So.2d 643, 645 (Ala.Crim.App.2003) (quoting Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998), quoting in turn, Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996)). Pursuant to Rule 14.4(a), Ala. R.Crim. P., the circuit court must personally address the defendant and inform him of and detei-mine that he understands the following:

“(i) The nature of the charge and the material elements of the offense to which the plea is offered;
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;
“(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses;
“(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of the defendant’s guilt; and
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved.”

Here, the circuit court failed to employ the safeguards required by Rule 14.4, Ala. R.Crim. P., and Boykin before accepting Clark’s stipulation of guilt. (R. 3-4.) Indeed, there is no indication in the record that Clark understood and voluntarily waived any of his constitutionally protected rights when he entered the “good behavior” stipulation. See Fleming v. State, 972 So.2d at 836 (holding that the record must establish that a defendant’s guilty plea was knowingly and voluntarily made and that the circuit court complied with Rule 14.4, Ala. R.Crim. P.).

Because this court cannot presume a valid waiver of an appellant’s constitutional rights whei'e the record is silent, Adair v. State, 53 Ala.App. 251, 298 So.2d 671, 674 (Crim.App.1974), and because the record fails to establish that Clark knowingly and voluntarily stipulated to his guilt, the circuit court erred in accepting Clark’s stipulation and adjudicating him guilty. See Boykin, 395 U.S. at 243, 89 S.Ct. 1709. Accordingly, the circuit court’s judgment is reversed, and this cause is remanded to the circuit court for that court to set aside Clark’s conviction.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.


author: PER CURIAM.

text:
    James Eugene HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. SC07-161.
    Supreme Court of Florida.
    Sept. 25, 2008.
    Rehearing Denied Dec. 3, 2008.

      Neal A. Dupree, Capital Collateral Regional Counsel, Paul E. Kalil, Assistant CCR Counsel, and Anna-Liisa Nixon, Staff Attorney, Southern Region, Fort Lauderdale, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.

      . Pope pleaded nolo contendere to each of the offenses for which Hunter was convicted. Pope testified at Hunter's trial. In exchange for Pope's plea and testimony, the State agreed to recommend concurrent life sentences.

   PER CURIAM.

James Eugene Hunter appeals an order denying his successive motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the circuit court’s denial of Hunter’s postconviction motion.

FACTUAL AND PROCEDURAL HISTORY

Hunter was convicted of one count of first-degree murder, three counts of attempted first-degree murder, one count of attempted armed robbery, and three counts of armed robbery. Hunter v. State (Hunter I), 660 So.2d 244, 247 (Fla.1995). The facts in this case are summarized in our opinion in Hunter’s direct appeal:

The following facts were established at trial. On September 16, 1992, James Hunter (a.k.a. Michael Miller), Tammie Cowan, Cathy Woodward, Charles Anderson, [Bruce Pope (a.k.a. Andre Smith) ], and Eric Boyd [ (a.k.a. Lee Lewis) ] traveled by car from St. Augustine to DeLand. Tammie Cowan testified that there were two black BB guns and one silver handgun in the car. Boyd and Anderson had the BB guns and Hunter had the handgun. In De-Land they stopped briefly to see Andre Smith’s mother. Thereafter, at approximately 11:44 p.m., Cowan stopped the car and Anderson, Boyd, Smith, and Hunter exited. Hunter then confronted and robbed a man on the street, using the silver handgun. Hunter and his companions then departed for Daytona Beach. Shortly afterwards, a “be on the lookout” (BOLO) alert for the DeLand robbers was transmitted by the police throughout the Volusia County area. The BOLO described a gray four-door sedan occupied by at least five black individuals, two of whom were females, who were suspects.
After the robbery, Hunter directed Cowan to drive to Daytona Beach and the vicinity of Bethune-Cookman College where four young men were standing outside the “Munch Shop.” Hunter instructed Cowan to stop the vehicle, and Hunter, Lewis, Anderson, and Smith exited and approached the four men. Hunter was armed with the silver handgun.
Hunter approached the men and ordered them to “give it up.” Hunter and his companions then robbed the men at gunpoint. Thereafter, while the men were lying face down on the sidewalk, Hunter shot each of them in turn. Wayne Simpson was the last victim to be shot in this process, and he subsequently died. Hunter and his colleagues then fled with the victims’ clothing, jewelry, and other miscellaneous items of personal property. When Hunter returned to the car, he ordered Cowan to leave, and told her that he had fired the gun because a victim had tried to run. Shortly thereafter, at 12:40 a.m., Deputy Richard Graves observed a vehicle in Ormond Beach matching the DeLand BOLO. Graves stopped the automobile, and Cowan told Graves that she and the others had come from DeLand. While the car was stopped, the DeLand robbery victim was brought to the scene where he identified Hunter as his robber and also identified the car. Cowan consented to a search of the car which yielded two BB guns and personal property belonging to the victims of both the DeLand and Daytona Beach robberies. The gun used by Hunter was never found.

Id. at 246-47. The jury recommended that Hunter receive the death penalty for Simpson’s murder, and the trial court followed the jury’s recommendation and sentenced Hunter to death. Id. We affirmed Hunter’s convictions and sentence of death on direct appeal. Id. at 246.

Hunter then filed an initial postconviction motion in March 1997. Hunter v. State (Hunter II), 817 So.2d 786, 790 (Fla.2002). He subsequently filed two amended postconviction motions, raising thirteen claims with multiple subparts. Id. The trial court ordered an evidentiary hearing on four of Hunter’s claims and summarily denied the remainder of the claims. Id. at 790-91. After holding an evidentiary hearing on April 5, 2000, the trial court denied all relief. Id. at 791. This Court affirmed the trial court’s order denying postconviction relief and denied Hunter’s petition for writ of habeas corpus. Id. at 789. Hunter subsequently filed a petition for writ of habeas corpus in federal district court, the denial of which was affirmed by the United States Court of Appeals for the Eleventh Circuit. Hunter v. Sec’y, Dep’t of Corr. (Hunter III), 395 F.3d 1196, 1199, 1206 (11th Cir.2005).

On October 3, 2005, Hunter filed a successive motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. After the circuit court issued an order striking the 3.851 motion, Hunter filed an amended 3.851 motion on January 11, 2006. Hunter’s amended motion contained the same claims as the original motion but added information to the motion. The trial court held a Huff hearing on Hunter’s amended postconviction motion on November 14, 2006. On December 22, 2006, the circuit court denied Hunter’s postconviction motion without holding an evidentiary hearing on any of the claims. This appeal followed.

ANALYSIS

Hunter challenges the summary denial of each of the four claims raised in his successive postconviction motion: (1) another codefendant was the shooter; (2) defense counsel had an actual conflict of intei’est in representing Hunter and a State witness; (3) a State witness was incompetent to testify at trial; and (4) violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), occurred through the State’s failure to disclose threats and promises to a State witness. We will discuss each of these issues in turn, but first we will explain the requirements for a rule 3.851 motion and the standard of review.

Florida Rule of Criminal Procedure 3.851 governs the timeliness of postconviction motions in capital cases. Rule 3.851(d)(1) prohibits the filing of a postcon-viction motion more than one year after the judgment and sentence become final. An exception to the rule permits otherwise untimely motions if the movant alleges that “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence.” Fla. R.Crim. P. 3.851(d)(2)(A).

Rule 3.851 also sets outs certain pleading requirements for initial and successive postconviction motions. Among other requirements, the motion must state the nature of the relief sought and must include “a detailed allegation of the factual basis for any claim for which an evidentiary hearing is sought.” Fla. R.Crim. P. 3.851(e)(1)(C), (e)(1)(D), (e)(2)(A). A successive motion based upon newly discovered evidence, Brady, or Giglio must also include

(i) the names, addresses, and telephone numbers of all witnesses supporting the claim;
(ii) a statement that the witness will be available, should an evidentiary hearing be scheduled, to testify under oath to the facts alleged in the motion or affidavit;
(iii) if evidentiary support is in the form of documents, copies of all documents shall be attached, including any affidavits obtained; and
(iv) as to any witness or document listed in the motion or attachment to the motion, a statement of the reason why the witness or document was not previously available.

Fla. R.Crim. P. 3.851(e)(2)(C).

Rule 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing “[i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief.” Because a court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003) (holding that “pure questions of law” that are discernable from the record “are subject to de novo review”). In reviewing a trial court’s summary denial of postconviction relief, this Court must accept the defendant’s allegations as true to the extent that they are not conclusively refuted by the record. Rutherford v. State, 926 So.2d 1100, 1108 (Fla.2006) (citing Hodges v. State, 885 So.2d 338, 355 (Fla.2004)). The summary denial of a newly discovered evidence claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record. McLin v. State, 827 So.2d 948, 954 (Fla.2002) (citing Foster v. State, 810 So.2d 910, 914 (Fla.2002)).

IDENTITY OF THE SHOOTER

Hunter asserts that the circuit court erred in denying an evidentiary hearing on his claim of newly discovered evidence of codefendant Eric Boyd’s recent confession to shooting Taurus Cooley, one of the surviving victims, in a dispute over drugs. Hunter alleged in his postconviction motion that the testimony of Boyd, Bruce Pope, and Charles Anderson would verify that “the reason for the trip to Daytona Beach was for Mr. Boyd (who was armed with a pearl handled pistol) to obtain the drugs or money from Mr. Cooley.” Hunter alleged that the newly discovered evidence would establish that Hunter “was not involved in the shooting and that, in fact, he was not in the immediate area when the shooting took place.” The circuit court denied this claim, finding that it failed to satisfy the first prong of Jones v. State, 709 So.2d 512 (Fla.1998), and that the allegations were facially insufficient to establish that Hunter would probably be acquitted of the murder of Wayne Simpson.

To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. Jones, 709 So.2d at 521. First, the evidence must not have been known by the trial court, the party, or counsel, and it must appear that the defendant or defense counsel could not have known of it by the use of due diligence. Id. (citing Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994)). Second, the evidence “must be of such nature that it would probably produce an acquittal on retrial.” Id. (citing Jones v. State, 591 So.2d 911, 915 (Fla.1991)). Newly discovered evidence satisfies the second prong of the Jones test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)).

In denying Hunter’s claim, the circuit court concluded that Hunter failed to satisfy the first prong of Jones because “the fact concerning the reason Defendant and his co-defendants came to Daytona Beach, and the sequence of events at the crime scene, are within Defendant’s knowledge.” While the court’s observation may be correct in the sense that those specific facts were within Hunter’s knowledge, the circuit court erred in finding that Hunter’s entire claim failed to meet the first prong of Jones. The bulk of Hunter’s claim was based on his assertion that codefendant Boyd recently confessed to shooting Cooley in a dispute over drugs and that his testimony and the testimony of codefen-dants Pope and Anderson would corroborate that the reason for the trip to Dayto-na Beach was for Boyd to obtain the drugs or money from Cooley. Moreover, Blunter alleged that Boyd previously refused to give a statement because he was promised by prosecutors that they would clear the matter up and that he should keep quiet. Hunter also alleged that Pope and Anderson remained silent because of promises from the State that they would receive leniency from their sentences.

In similar circumstances, Florida courts have found post-trial confessions from co-defendants to qualify as newly discovered in the sense that the evidence was not known at the time of trial and could not have been known by the use of due diligence. See Brantley v. State, 912 So.2d 342, 342-43 (Fla. 3d DCA 2005) (remanding for an evidentiary hearing based on the affidavit of a codefendant which stated the defendant was not present and was not involved in the shooting and based on the postconviction motion which alleged that defense counsel tried to obtain the code-fendant’s cooperation but was refused); Roundtree v. State, 884 So.2d 322, 323 (Fla. 2d DCA 2004) (holding that the defendant’s allegations that his codefendant admitted that the defendant had no role in the robbery and that the codefendant had not testified on the defendant’s behalf because he had been coerced by the State were sufficient to state a prima facie claim of newly discovered evidence); Kendrick v. State, 708 So.2d 1011, 1012 (Fla. 4th DCA 1998) (stating that a codefendant’s sworn post-trial testimony that he lied to police and that he was told by police to say he got the cocaine from the defendant in order to keep his own prison time to a minimum qualified as newly discovered evidence because it was unknown, the code-fendant was unwilling to give the testimony previously, and the testimony could not have been secured through due diligence); State v. Gomez, 363 So.2d 624, 626-28 (Fla. 3d DCA 1978) (treating as newly discovered evidence the post-trial affidavit of a codefendant confessing to having committed the robbery without the defendant’s assistance).

Nevertheless, we do not find that the circuit court erred in summarily denying this claim. In denying Hunter’s claim, the circuit court concluded that Hunter’s allegations were facially insufficient to establish that Hunter would probably be acquitted of the murder of Wayne Simpson and noted that Hunter’s motion did not allege that Boyd claimed to have murdered Simpson.

Hunter’s allegations are indeed insufficient to support his claim of innocence of first-degree murder. Hunter was convicted of multiple charges against multiple victims: the first-degree murder and attempted armed robbery of Simpson, the attempted first-degree murder and armed robbery of Cooley, the attempted first-degree murder and armed robbery of Theodore Troutman, and the attempted first-degree murder and armed robbery of Michael Howard. However, Hunter’s motion only specifically alleged that codefen-dant Boyd confessed to shooting one victim: Cooley. Although Hunter’s motion repeatedly referred to another codefen-dant having confessed to being “the shooter” and stated that the evidence would establish that Hunter was not present during “the shooting” or involved in “the shooting,” the only shooting specifically identified in the motion was the shooting of Cooley. Although Hunter contends on appeal that Boyd’s confession leads to the logical conclusion that Boyd shot the four victims, this was never alleged in the motion. At the Huff hearing on the motion, postconviction counsel even conceded that he was not prepared to say that Boyd had confessed to killing Simpson.

Unlike the cases discussed above in which the courts remanded for an eviden-tiary hearing based on the post-trial confession of a codefendant, the confession in this case does not concern the only crime for which the defendant was convicted. Cf. Brantley, 912 So.2d at 342-43 (noting that the defendant was convicted of the first-degree murder of one victim and that the codefendant’s affidavit alleged that the defendant was not present during the victim’s shooting); Roundtree, 884 So.2d at 323 (observing that the defendant was convicted of armed robbery and that the code-fendant admitted that the defendant had no role in the robbery); Kendrick, 708 So.2d at 1012 (noting that the defendant was found guilty of trafficking in cocaine and that the codefendant confessed that the cocaine was not the defendant’s); Gomez, 363 So.2d at 625-26 (discussing the defendant’s conviction for robbery and the codefendant’s post-trial confession to having committed the robbery without the defendant’s assistance). The confession in this case only addresses one of several crimes and does not address the crime for which Hunter claimed innocence in his motion.

Moreover, apart from the specific allegation regarding Boyd’s confession and the reason for the trip to Daytona Beach, the motion was otherwise vague. Although it alleged that the newly discovered evidence would establish that Hunter was not present or involved, it contained no factual allegations to support this statement. Thus, Hunter’s motion insufficiently alleged the facts supporting this claim, in contravention of rule 3.851(e)(1)(D).

Even if we were to find Hunter’s claim to be facially sufficient, Hunter has not satisfied the second prong of Jones. The newly discovered evidence is not of such a nature that it would probably produce an acquittal on retrial. As explained below, evidence was presented at trial through the testimony of multiple witnesses on each of the matters alleged in Hunter’s successive motion.

First, each of the surviving victims testified at trial. Michael Howard testified that he was with Wayne Simpson, Theodore Troutman, and Taurus Cooley shortly after midnight on September 17, 1992, at the Munch Shop near Bethune-Cookman College. He testified that they were approached by four black males that he had never seen before and told to “give it up.” Howard identified Hunter in court as the one who told them to “give it up.” Howard testified that Hunter had a chrome gun. Howard said that Hunter ordered Cooley to take off his shirt and that Hunter then shot Cooley in the chest with the chrome gun. Howard testified that he then saw the gun wave toward him and that he turned around and heard three more shots. Howard said he noticed that he had been shot after he started running away and there was blood running down his back.

Troutman testified that he was with Simpson, Howard, and Cooley at the Munch Shop during the late evening hours of September 16, 1992, until just after midnight on September 17, 1992. Trout-man testified that he and his friends were approached by several men and that he heard one of them say to “give it up.” Troutman stated that he saw multiple guns, including a long, black gun that had been put to his neck and a silver handgun. Troutman identified Hunter as one of the men that night. Troutman testified that he saw Hunter with the silver gun. Trout-man testified that he saw Cooley taking off his shirt and that Troutman then heard gunfire. Troutman testified that he himself was later shot.

Cooley testified that he was with Simpson, Troutman, and Howard at the Munch Shop on the night of September 16, 1992, when they were approached by four men. Cooley testified that he had never seen any of the four men prior to that night. However, Cooley identified both Hunter and Boyd in court. Cooley testified that three of the men had guns and that Hunter told them to give up their possessions and money and that Boyd told them to lie down. Cooley testified that Boyd put a long gun to Troutman’s neck and that Hunter put a gun on Cooley. Cooley testified that Hunter had a small chrome handgun, “like a .25.” Cooley testified that Hunter pointed the gun at Cooley and told him to take off his shirt. Cooley said that he took off his shirt and had it in his hand when Hunter shot him in the chest. Cooley testified that Hunter shot Simpson, Troutman, and Howard a couple of seconds later.

Second, two of Hunter’s companions on the night in question also testified at trial. Tammie Cowan testified that she was with James Hunter, Charles Anderson, Bruce Pope, Eric Boyd, and Cathy Woodward on September 16, 1992, and traveled with them from St. Augustine to DeLand and then to Daytona in a friend’s car that she was driving. She testified that Hunter told her that he wanted to go to Daytona and gave her directions from DeLand to Daytona. Cowan said that Hunter said he wanted to go by a girl’s house to get marijuana. She testified that after they went to the girl’s house, she drove a couple of blocks and that Hunter told her to stop. Cowan stated that she had seen a few black men and that Hunter told her to stop the car about three blocks from the men they had seen. Cowan testified that the four men in the car got out with the guns. Cowan testified that Hunter had the silver gun and that Boyd had a gun. Cowan testified that the men walked behind the car and across the street. She said that while she and Woodward were sitting in the car, she heard a sound like a backfire of a car. Cowan testified that she heard one shot and then three more from the direction that the men walked in. Cowan stated that the four men came back to the car and that Hunter told her to drive off and that Hunter said one of the men tried to run so he shot at him. Cowan also testified that Hunter had the silver gun when he got back in the car and that Boyd and Anderson had the BB guns with them.

Pope testified that on September 16, 1992, he traveled with Hunter, Cowan, Woodward, Boyd, and Anderson to De-Land from St. Augustine to visit Pope’s mother. He testified that Hunter had a .25 automatic chrome gun with a white pearl handle and that Anderson and Boyd had BB guns. He testified that after leaving DeLand, they went to Daytona. He said that it was Hunter’s idea and that Hunter gave Cowan directions. Pope testified that they stopped at a girl’s house in Daytona to get marijuana and that Hunter got out of the car. Pope stated that after Hunter got back in the car, they drove around with Hunter telling Cowan how to get where they wanted to go. Pope testified that near the Bethune-Cookman College area they saw four guys sitting down and that Hunter told Cowan to stop the car. He testified that he got out of the car with Hunter, Boyd, and Anderson and that Anderson and Boyd had the BB guns and that Hunter had the silver gun. Pope testified that they went to where the men were sitting. Pope testified that Hunter pointed a gun at the chest of one of the men and that the man took off his shirt. Pope said that he was turned around and that then he heard a gunshot and saw a flash from Hunter’s gun. Pope testified that at the time that the man was shot taking off his shirt, Boyd was standing with his gun over three of the men who were lying on the ground. Pope said that after he saw the flash from Hunter’s gun, Pope ran back to the car and heard three more gunshots. Pope stated that he saw Hunter with the silver gun on his way back to the car.

In sum, every part of Hunter’s newly discovered evidence claim was addressed through the testimony of multiple witnesses at trial. Multiple witnesses testified that it was Hunter’s idea to go to Daytona Beach to obtain marijuana from a girl. Multiple witnesses, both victims and perpetrators, testified that Hunter was armed with a chrome handgun and was present at the scene of the robberies and shootings. Moreover, multiple witnesses testified that Hunter shot Cooley (and the other victims), or they gave testimony implying as much. This is not a situation where the State’s case was based on the testimony of one key witness and there was no other evidence tying the defendant to the crimes. Cf. Johnson v. Singletary, 647 So.2d 106, 111 (Fla.1994) (remanding for an evidentiary hearing where the State’s case was based almost entirely on one person’s eyewitness testimony and there was no other evidence tying the defendant to the crime and where several affidavits stated that another person confessed to committing the crime). Furthermore, even if Pope is now recanting his trial testimony as Hunter’s motion implied and would testily at a new trial, he could still be impeached at a new trial with his prior inconsistent statements given at Hunter’s original trial. See § 90.608(1), Fla. Stat. (2007). In light of the strong testimonial evidence establishing Hunter’s guilt, we conclude that the newly discovered evidence would not probably produce an acquittal on retrial.

Accordingly, we hold that the circuit court did not err in denying an evidentiary hearing on Hunter’s claim of newly discovered evidence that another codefendant was the shooter.

CONFLICT OF INTEREST

Hunter asserts that the circuit court erred in denying an evidentiary hearing on his claim of newly discovered evidence of trial counsel’s actual conflict of interest. Hunter claims that newly discovered evidence establishes that defense counsel George Burden had an actual conflict of interest because he was a member of the same public defender’s office that had represented witness and victim Taui’us Cooley. The circuit court denied this claim, concluding that the claim was untimely and that the evidence could have been discovered prior to the initial post-conviction evidentiary healing through the exercise of due diligence.

In light of Hunter’s failure to sufficiently allege his diligence and timeliness in pursuing this claim in accordance with the requirements of rule 3.851, we find that the circuit court correctly denied this claim. In Hunter’s initial postconviction motion filed in 1999, Hunter raised a claim alleging that trial counsel Burden had an actual conflict of interest during his representation of Hunter because the public defender’s office also represented Cooley when he was a witness against Hunter. The posteonviction trial court held an evi-dentiary hearing on this claim at which Cooley, Hunter, Burden, and trial prosecutor Elizabeth Blackburn-Gardner testified. Through the testimony and evidence introduced at the hearing, Hunter demonstrated that other members of the same public defender’s office had represented Cooley in a number of unrelated criminal charges within the year preceding Hunter’s trial. However, Burden and Blackburn-Gardner testified that they were either unaware of or could not recall that Cooley had a criminal history and was represented by the public defender’s office. The trial court ultimately denied relief, and this court affirmed the denial. Hunter II, 817 So.2d at 793. Thus, the issue of Burden’s alleged conflict of interest was previously raised and decided in Hunter’s first postconviction proceedings.

Claims raised in prior postconviction proceedings cannot be relitigated in a subsequent postconviction motion unless the movant can demonstrate that the grounds for relief were not known and could not have been known at the time of the earlier proceeding. See Wright v. State, 857 So.2d 861, 868 (Fla.2003). Rule 3.851 requires motions filed beyond the time limitations to specifically allege that the facts on which the claim is predicated were unknown or could not have been ascertained by the exercise of due diligence. Fla. R.Crim. P. 3.851(d)(2)(A). Furthermore, the rule requires successive motions to articulate the reasons why a claim was not raised previously and why the evidence used in support of the claim was not previously available. Fla. R.Crim. P. 3.851(e)(2)(B), (e)(2)(C)(iv). Hunter’s motion does not satisfy any of these requirements.

Hunter presented the following allegations. He alleged that an NCIC/FCIC (National Crime Information Center/Florida Crime Information Center) report detailing Cooley’s criminal background was obtained by Blackburn-Gardner and delivered to Burden before Hunter’s trial. He alleged that this evidence was discovered within one year of the filing of the motion. Hunter further alleged that postconviction counsel was deceived by the testimony of Blackburn-Gardner and Burden at the time of the previous evidentiary hearing as to their alleged lack of knowledge of Cooley’s criminal background and the conflict of interest. When asked at the Huff hearing about the timeliness of this claim, Hunter’s current postconviction counsel stated that the previous postconviction counsel who had filed the motion on behalf of Hunter would be available to testify as to the facts and circumstances of the discovery of the NCIC/FCIC report and the diligence he exercised. However, no facts or circumstances were ever alleged in the motion. The motion did not assert that the report could not have been discovered previously, and it did not give a reason why it was not previously available. In sum, apart from cursorily stating that the evidence was discovered within a year of the filing of the motion and that the testimony at the previous evidentiary hearing deceived counsel, Hunter did not make any allegations concerning the timeliness of this claim or the diligence used to pursue it.

In light of Hunter’s deficient allegations regarding the timeliness of the claim and the diligence used to pursue it, we hold that the circuit court correctly denied Hunter’s claim as untimely.

WITNESS’S COMPETENCY TO TESTIFY AT TRIAL

Hunter contends that the circuit court erred in denying an evidentiary hearing on his claim of newly discovered evidence of witness Taurus Cooley’s incompetence to testify at Hunter’s trial. Hunter argues that Cooley’s adjudication of not guilty by reason of insanity in proceedings that occurred in 2001, years after Hunter’s trial in 1993, established that Cooley was incompetent to testify at Hunter’s trial. The circuit court denied this claim, concluding that the evidence could not be considered newly discovered evidence and noting that Hunter did not allege that Cooley was also incompetent to testify at the prior postcon-viction proceedings in which Hunter called Cooley as a witness. The circuit court also held that the claim was facially insufficient in numerous respects, observing that Hunter failed to provide the relevant details about proposed expert witnesses as required by rule 3.851, failed to allege that Cooley was consenting to submit to a mental status examination, and failed to allege any facts showing how Cooley’s 2001 post-trial adjudication would have any relevance to his competence to testify at Hunter’s trial in 1993.

On appeal, Hunter contends that the evidence may be properly considered newly discovered evidence, citing this Court’s decisions in State v. Mills, 788 So.2d 249 (Fla.2001), and Scott v. Dugger, 604 So.2d 465 (Fla.1992). The State disagrees, citing among other cases this Court’s decisions in Porter v. State, 653 So.2d 374 (Fla.1995), and Kearse v. State, 969 So.2d 976 (Fla.2007). Because we conclude that the circuit court correctly determined that Hunter’s claim was facially insufficient in several respects, we need not decide whether the evidence qualifies as newly discovered evidence. As explained below, we conclude that the circuit court’s summary denial of this claim was proper.

Hunter claimed that Cooley was incompetent to testify at Hunter’s trial. Hunter alleged that Cooley was declared legally insane and not guilty by reason of insanity on several felony charges in proceedings that occmred after Hunter’s trial. While Hunter asserted that the adjudication occurred after the original postconviction proceedings, Hunter provided no other facts in support of this claim, including any facts demonstrating Cooley’s incompetence in 1993. Further, he did not identify when or where the adjudication occurred. Although the circuit court’s order denying postconviction relief noted that the adjudication occmred in 2001 in Volu-sia County, Hunter failed to allege these facts in his motion. Thus, Hunter failed to provide detailed allegations of the factual basis for this claim as required by rule 3.851(e)(1)(D). Furthermore, while Hunter asserted in his motion that evidence to support the claim included court documents of Cooley’s proceedings, no documents from Cooley’s proceedings were attached to the motion in the record that this Court has on appeal. Thus, it appears that Hunter failed to attach the documents he relied upon, in contravention of rule 3.851(e)(2)(C)(iii). In support of his claim, Hunter asserted that he “may also produce expert witness testimony as to the nature and extent of Mr. Cooley’s longstanding disorder and its impact on Mr. Cooley’s competence to have testified against Mr. Hunter.” However, as the circuit court acknowledged, Hunter failed to provide the name, address, and telephone number of the expert witness supporting the claim, contrary to the requirements of rule 3.851(e)(2)(C)(i).

In sum, as the circuit court found, Hunter failed to sufficiently allege facts to show how Cooley’s post-trial adjudication of not guilty by reason of insanity in 2001 would have any relevance to Cooley’s competence to testify at Hunter’s trial in 1993, and also failed to meet several pleading requirements of rule 3.851.

Even if we were to find that Hunter sufficiently alleged his claim and that the evidence properly qualifies as newly discovered evidence, Hunter has not satisfied the second prong of Jones. The evidence alleged by Hunter is not of such a nature that it would probably produce an acquittal on retrial. The record demonstrates that other witnesses testified as to the same matters to which Cooley testified. The other surviving victims, Howard and Troutman, and two of Hunter’s companions, Cowan and Pope, testified that Hunter was aimed with a chrome handgun and was present at the scene of the robberies and shootings. Moreover, Howard testified that Hunter shot Cooley, and Pope gave testimony clearly implying as much. While no other witness apart from Cooley explicitly testified that he or she saw Hunter shoot the other victims, the testimony of Cowan and Pope suggested that Hunter retained possession of the gun after all four victims were shot. In light of the strong testimonial evidence establishing Hunter’s guilt, we conclude that the evidence of Cooley’s alleged incompetence would not probably produce an acquittal on retrial as required by Jones.

Accordingly, we hold that the trial court did not err in denying an evidentiary hearing on Hunter’s claim of newly discovered evidence that Cooley was incompetent to testify at Hunter’s trial.

BRADY AND GIGLIO

Hunter asserts that the circuit court erred in denying an evidentiary hearing on his claim that the State withheld favorable evidence in violation of Brady and presented misleading evidence in violation of Gig-lio. Specifically, Hunter claims that the State threatened witness Tammie Cowan with a life sentence if she did not testify against Hunter and that this threat was not disclosed to the defense. The circuit court denied this claim, noting that Giglio was inapplicable because the motion failed to allege that any aspect of Cowan’s testimony was false and that the proposed testimony would not satisfy the materiality prong of Brady. The circuit court also concluded that Hunter’s claim failed to meet the requirements for relief based on a claim of newly discovered evidence because it could have been discovered through due diligence.

In light of Hunter’s specific allegations concerning his diligence, we find that the circuit court improperly found that Hunter’s claim was procedurally barred because the evidence could have been discovered previously through the exercise of due diligence. Hunter’s motion satisfies the pleading requirements of rule 3.851 with respect to timeliness and diligence. Hunter alleged that Cowan could not be located during the pendency of the initial postconviction proceedings, despite due diligence. He specifically asserted that “Ms. Cowan had been incarcerated during that period of time and, prior to her incarceration, had not maintained a consistent residence where she could have been located to obtain a statement.” While the State may contest Hunter’s diligence, Hunter sufficiently alleged the reason why this claim was not presented previously. Moreover, because the circuit court summarily denied Hunter’s claim, this Court must accept Hunter’s allegations as true to the extent that they are not conclusively refuted by the record. See Rutherford, 926 So.2d at 1108. As nothing in the record conclusively refutes Hunter’s allegations, we must accept Hunter’s allegations regarding his diligence as true. Accordingly, we find that the circuit court erred in denying Hunter’s claim on this ground.

Nevertheless, we do not find that the circuit court erred in summarily denying this claim. Hunter’s allegations for his Giglio and Brady claim are insufficient and conclusively refuted by the record.

A Giglio claim alleges that a prosecutor knowingly presented false testimony against the defendant. See Giglio, 405 U.S. at 153, 92 S.Ct. 763. “To establish a Giglio violation, it must be shown that: (1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Guzman v. State, 868 So.2d 498, 505 (Fla.2003) (citing Ventura v. State, 794 So.2d 553, 562 (Fla.2001)). “Under Giglio, where the prosecutor knowingly uses perjured testimony, or fails to correct what the prosecutor later learns is false testimony, the false evidence is material ‘if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Guzman, 868 So.2d at 506 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Under this standard, the State has the burden to prove that false testimony was not material by demonstrating that it was harmless beyond a reasonable doubt. Id.; see also Mordenti v. State, 894 So.2d 161, 175 (Fla.2004). Thus, the standard applied under the third prong of the Giglio test is more defense-friendly than the test set out in Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), which is applied to a violation under Brady. See Guzman, 868 So.2d at 507.

Brady requires the State to disclose material information within its possession or control that is favorable to the defense. Mordenti, 894 So.2d at 168. To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence — either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936; see also Way v. State, 760 So.2d 903, 910 (Fla.2000). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. Strickler, 527 U.S. at 289, 119 S.Ct. 1936. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Way, 760 So.2d at 913; see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936. The remedy of retrial for the State’s suppression of evidence favorable to the defense is available when “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). When determining materiality, the cumulative effect of the suppressed evidence must be considered. Lightbourne v. State, 841 So.2d 431, 437 (Fla.2003). Furthermore, the impeachment value of the undisclosed evidence must be analyzed in determining whether prejudice ensued. Mordenti, 894 So.2d at 170.

The circuit court found that Giglio was inapplicable because Hunter did not claim that any aspect of Cowan’s trial testimony was false. The circuit court correctly concluded that Hunter’s allegations failed to state a claim under Giglio. Although Hunter argues on appeal that “it is clear that the crux of Mr. Hunter’s claim is that Cowan’s damaging testimony was false and was the direct result of the threats and promises made to her by the State,” Hunter’s motion contained no clear allegation that Cowan’s testimony was false. While Hunter vaguely asserted that because the State’s threat to Cowan was not disclosed to the defense, it constituted a violation of the duties established in Gig-lio “forbidding the presentation of false or misleading evidence,” Hunter failed to present any specific allegations in support of his Giglio claim. Hunter failed to allege that Cowan gave false testimony, he failed to allege that the prosecutor knew that Cowan’s testimony was false, and he failed to allege that Cowan’s testimony was material. In sum, Hunter failed to allege any of the elements of a Giglio claim. Given the significant pleading deficiencies of Hunter’s Giglio claim, the circuit court’s summary denial of Hunter’s Giglio claim was proper. See Rodriguez v. State, 919 So.2d 1252, 1269-70 (Fla.2005) (affirming the summary denial of a Giglio claim that failed to show that the testimony was false or that the prosecutor had knowledge of the allegedly false testimony).

Hunter’s Brady claim also is quite conclusory, although it may contain sufficient allegations to establish the first two prongs of Brady. Nevertheless, we do not find that the circuit court erred in summarily denying this claim. The circuit court properly found that Hunter’s allegations would not satisfy the materiality prong of Brady. There is no reasonable probability that had the evidence been disclosed the jury would have reached a different verdict.

At trial, Cowan’s credibility was impeached in several respects, including her motive for testifying. Cowan testified that she was charged with accessory after the fact to armed robbery and accessory after the fact to murder for her role in the crimes with which Hunter was charged. Cowan testified that she entered a plea to the charges. She testified that she was serving a sentence of 364 days and five years’ probation as a result of entering pleas to the two charges. She also testified that one of the crimes she pleaded to was a first-degree felony, punishable by up to life imprisonment. Cowan further testified that she had been worried about being charged with the murder. Cowan testified that she received five year’s probation, “if [she] would cooperate.” When asked if that included testifying at trial, Cowan testified both affirmatively and negatively and said that she was confused. Cowan also testified that she was .mad at Hunter for having caused the car Cowan had borrowed to be impounded and for failing to bond her out as he had promised. In sum, although Cowan was otherwise impeached at trial, evidence that the State had threatened her with a life sentence if she did not testify against Hunter was not presented. However, even though it was not presented, the impeachment value is limited in light of the fact that Cowan was otherwise impeached in several respects.

Furthermore, much of Cowan’s testimony was corroborated through the testimony of Bruce Pope, one of Hunter’s code-fendants. Pope and Cowan gave similar testimony about the sequence of events leading up to the shooting in Daytona. Both Pope and Cowan testified that Hunter had the chrome gun when he exited the car with Pope, Boyd, and Anderson, and both testified that Hunter had the gun after the shootings.

The record also contains extensive evidence of Hunter’s guilt. Pope and the three surviving victims not only testified that Hunter was armed with a chrome handgun and was present at the scene of the robberies and shootings but also testified that Hunter shot the four victims, or they gave testimony implying as much. In light of the extensive evidence of Hunter’s guilt and Cowan’s impeachment at trial, there is no reasonable probability that had the information been disclosed to Hunter the result of the proceeding would have been different.

Accordingly, we conclude that the circuit court did not err in denying an evidentiary hearing on Hunter’s claim that the State withheld favorable evidence in violation of Brady and presented misleading evidence in violation of Giglio.

CONCLUSION

For the foregoing reasons, we affirm the circuit court’s denial of Hunter’s successive rule 3.851 motion for postconviction relief.

It is so ordered.

QUINCE, C.J., WELLS, ANSTEAJD, PARIENTE, LEWIS, and BELL, JJ„ and CANTERO, Senior Justice, concur.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      .Hunter and Boyd were tried together. Neither Hunter nor Boyd testified at trial. The jury found Hunter guilty of all counts as charged in the indictment and recommended that he be sentenced to death. The jury found Boyd guilty of all counts as charged in the indictment, except the jury found Boyd guilty of the lesser included offense of attempted second-degree murder of Cooley. The jury recommended a life sentence for Boyd.

      . Anderson awaited trial on the charges at the time of Hunter's trial. He did not testify at Hunter’s trial.

      . In his postconviction motion, Hunter only contended that the newly discovered evidence would likely produce an acquittal on retrial. Thus, to the extent that Hunter argues on appeal that the newly discovered evidence would probably produce a less severe sentence, this argument is not properly before this Court.

      . This Court specifically held that while Hunter articulated a potential conflict of interest, the trial court did not err in concluding that Hunter failed to demonstrate that an actual conflict of interest existed that affected his attorney’s performance under the circumstances in the case. Hunter II, 817 So.2d at 793. This Court also held that even if an actual conflict of interest existed within the public defender's office, Hunter failed to demonstrate that the conflict adversely affected his attorney’s representation. Id. This Court noted that irial counsel's testimony at the evidentiary hearing that he was not aware of Cooley’s criminal background or the public defender's prior representation of Cooley refuted Hunter's contention that the conflict prevented adequate cross-examination of Cooley about his recent and impending criminal charges in an attempt to impeach Cooley's credibility. Id. The federal district court and the Eleventh Circuit Court of Appeals likewise denied relief on this claim. See Hunter III, 395 F.3d at 1200, 1202.

      . Moreover, we question Hunter's diligence and timeliness in presenting a claim challenging Cooley's competency to testify at trial. During Hunter’s prior postconviction proceedings in 2000, the father of victim Wayne Simpson informed the court that when he confronted Cooley about Cooley’s demeanor and actions at the postconviction proceedings, Cooley described himself as a "mental case,” who was "not supposed to be here." Thus, the record demonstrates that as early as 2000, Hunter was informed of a possible issue concerning Cooley's mental competency.

      . Based on the arguments presented by the State in its response to Hunter's motion and at the Huff hearing, it appears that the contested diligence aspect concerned Hunter's failure to present this claim in the prior post-conviction proceedings, not his failure to use diligence at the time of trial.

      . Although Hunter argues on appeal that the evidence was material to Hunter’s punishment, Hunter failed to allege the materiality as to punishment in his postconviction motion, and his postconviction motion described the relief sought as exoneration or a new trial. Thus, Hunter's argument regarding the materiality as to punishment is not properly before this Court.