author: KELLUM, Judge. WELCH, Judge,

text:
    Trenton J. McCLAIN v. STATE of Alabama.
    CR-07-1585.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.

      James Perry Newton, Butler, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Trenton J. McClain, was convicted of murder, a violation of § 13A-6-2, Ala. Code 1975. The circuit court sentenced McClain to 50 years’ imprisonment. The court ordered McClain to pay $50 to the crime victims compensation fund and $11,976.56 in restitution.

The evidence presented at trial established the following pertinent facts. On the evening of September 1, 2006, Jamu-ary Whittaker rode with his friend Robert Williams to the Chicken Coop, a club in Gainestown. Once they arrived at the Chicken Coop, Whittaker and Williams got out of the vehicle. Williams testified that Whittaker immediately began talking to two friends, one of whom was McClain’s cousin, Charlie McGaster. According to Williams, the only thing Whittaker had in his hand was a beer. Williams testified that McClain went up to McGaster and asked him if he had some “heat,” meaning a gun, and McGaster said, “No.” (R. 84.) McClain then walked away. Williams testified that McClain returned a few minutes later, shot Whittaker with a shotgun, and immediately ran away. According to Williams, Whittaker said nothing to McClain that evening and Whittaker had not exchanged cross words with McClain in the weeks leading up to the shooting. Williams testified that neither he nor Whittaker had a gun on his person that evening.

Derrick Hunt, who was at the Chicken Coop on the night of September 1, 2006, testified that he was standing behind Williams’s vehicle when he heard a shot and saw McClain holding a single-barrel shotgun. According to Hunt, after McClain shot Whittaker he said to Whit-taker “swing on me now, laugh at me now,” then ran off into some nearby bushes. (R. 112.) Hunt testified that he did not see anyone else that evening, other than McClain, who had a gun in his possession.

Antonio Jemel Jones, Whittaker’s cousin, testified that he also saw McClain shoot Whittaker. According to Jones, several weeks before the shooting, Whittaker and McClain were in a fight. Jones testified that he and Whittaker subsequently ran into McClain at a grocery store where Whittaker and McClain shook hands. Jones testified that he believed after that exchange that any disagreement between Whittaker and McClain had been resolved. Jones stated that on the evening of September 1, 2006, he overheard McClain tell McGaster “bitch going to die tonight.” (R. 192.) Jones testified that he had never seen Whittaker with a gun.

Marcus Belton, over the objection of defense counsel, testified that he had been the victim of a nightclub shooting in June 2002. Belton testified that the nightclub he was at when he was shot was also located in Gainestown and was owned by the same man who owned the Chicken Coop. According to Belton, McClain shot him in the collar bone without provocation, using a handgun. On cross-examination, Belton testified that criminal charges were never brought against McClain for the shooting.

McGaster, McClain’s first cousin, testified that he was present when the shooting occurred and that he saw Whittaker fall to the ground after he was shot. McGaster testified that after Whittaker was shot he observed someone remove a gun and marijuana from Whittaker’s pants pockets. McGaster testified that Whittaker had previously shot a gun into a car in which he and McClain were riding.

The jury found McClain guilty of murder, as charged in the indictment. This appeal followed.

I.

McClain contends that the circuit court erred in allowing the State to introduce evidence of collateral acts of misconduct, in violation of Rule 404(b), Ala. R. Evid. Specifically, McClain argues that Belton’s testimony regarding an altercation between him and McClain did not meet any of the allowable exclusions under Rule 404(b).

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). This is equally true with regard to the admission of collateral-acts evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala.Crim.App.1998).

Rule 404(b), Ala. R. Evid., provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

At trial, the State argued that it planned to introduce the evidence to show, among other things, motive, intent, identity, or a common plan, design, or scheme. The State proposed that the evidence would show, and, indeed, the evidence did show, that in June 2002 McClain shot Bel-ton in the neck without provocation while both were at a nightclub owned by the same man who owned the Chicken Coop.

“Under the general exclusionary rule, evidence of collateral offenses of the accused is inadmissible to prove guilt on the now charged offense. Anonymous v. State, 507 So.2d 972, 973 (Ala.1987). However, evidence of collateral offenses may be admissible under certain exceptions to the exclusionary rule or for ‘other purposes’ than to prove the accused’s guilt. These exceptions or other purposes include motive, intent, identity, or common plan, design, or scheme. Bowden v. State, 538 So.2d 1226, 1227 (Ala.1988); Atkisson v. State, [640 So.2d 33] (Ala.Crim.App.1993); Register v. State, [640 So.2d 3] (Ala.Crim.App.1993).”

Williamson v. State, 629 So.2d 777, 780 (Ala.Crim.App.1993). “[T]he plan, scheme, or design exception is an extension of the identity exception — where the charged crime and the collateral crime are committed in the same novel or peculiar manner, evidence of the collateral crime is admissible to identify the defendant as the perpetrator of the charged crime.” Register v. State, 640 So.2d 3, 6 (Ala.Crim.App.1993). See also Ex parte Darby, 516 So.2d 786, 789 (Ala.1987) (the common scheme or plan exception has been held to be “coextensive with the identity exception”). The circumstances of the charged crime and the collateral crime must “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.” Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983).

In the instant case, the earlier shooting of Belton, like the shooting of Whittaker, occurred at similar nightclubs owned by the same man. The victims each sustained similar injuries — Belton sustained an injury to his collarbone and Whittaker sustained an injury to his neck. Both Belton and Whittaker were attacked without provocation. The shooting of Belton and the shooting of Whittaker were sufficiently similar to fall under the plan, scheme, or design exception. Accordingly, we conclude that the trial court did not err in allowing the State to introduce testimony of a collateral bad act.

II.

McClain further contends that the circuit court erred in refusing to allow McGaster to testify regarding statements Whittaker made to him the night of the shooting in which Whittaker purportedly threatened McClain. Specifically, McClain argues that the statements were not inadmissible hearsay because, he says, they were not being offered to prove the truth of the matter therein — that Whittaker had threatened McClain — but were being offered to prove Whittaker’s state of mind— an exception to the hearsay rule.

The record indicates that the following occurred during McGaster’s testimony:

“Q. [DEFENSE COUNSEL:] Was there ever any discussion about Trenton McClain between [you and Whittaker]?
“A. [McGaster:] Yes, sir.
“Q. Who brought up the subject of Trenton McClain?
“A. [Whittaker].
“[PROSECUTOR]: Judge, I object to what he said as being hearsay.
“[THE COURT]: All right.
“[DEFENSE COUNSEL]: Judge, I think it’s material and relevant to this court case. It’s all about motive and intent. I think this is crucial testimony that’s relevant and material to the issues in this case.
“[PROSECUTOR]: Materiality and relevancy do not make it admissible.
“THE COURT: It is hearsay. Sustained.
“Q. Did anyone ever threaten Trenton that night?
“[PROSECUTOR]: Judge, I am going to object, it calls for hearsay.
“THE COURT: Sustained.”

(R. 272-73.)

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(e), Ala. R. Evid. A statement that constitutes hearsay may still be admissible under one of the exceptions to the hearsay rule. One such exception is the “state-of-mincl” exception, as set out in Rule 803(3), Ala. R. Evid. Rule 803(3), Ala. R. Evid., provides that a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition is admissible as relevant evidence. See Charles W. Gamble, McElroy’s Alabama Evidence, 261.03(2) and (5) (5th ed. 1996).

Despite McClain’s claim to the contrary, it is clear from the record that the truth of the matter asserted in the statement, i.e., that Whittaker threatened to harm McClain on the evening of September 1, 2006, is exactly what McClain was offering the statement to prove. McGaster’s testimony was classic hearsay — he testified to a threatening statement made by Whittaker regarding McClain, and that statement was offered by McClain to prove the truth of its contents, i.e., that Whittaker threatened McClain. Furthermore, McGaster’s testimony did not fall within the Rule 803(3) exception to the hearsay rule. Accordingly, we cannot say that the circuit court abused its discretion not allowing McGaster’s hearsay testimony.

III.

Finally, McClain contends that the circuit court erred by failing to instruct the jury on lesser-ineluded offenses because, he says, the evidence at trial supported a charge on the lesser-ineluded offense of manslaughter.

“Lesser included offense instructions should be given when there is a ‘reasonable theory from the evidence’ supporting such an instruction.” Dobyne v. State, 672 So.2d 1319, 1345 (Ala.Crim.App.1994)(quoting Jenkins v. State, 627 So.2d 1034, 1049 (Ala.Crim.App.1992)). A trial court may refuse to charge on a lesser-ineluded offense only when: (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense; or (2) the charge would tend to mislead or confuse the jury. Turner v. State, 708 So.2d 232, 234 (Ala.Crim.App.l997)(citing Holladay v. State, 549 So.2d 122 (Ala.Crim.App.1988)).

A person commits the crime of manslaughter if he “recklessly causes the death of another person” or if he “causes the death [of another person] due to a sudden heat of passion caused by provocation recognized by law.” § 13A-6-3, Ala. Code 1975. In the instant case, the evidence indicated that McClain shot Whit-taker without provocation. Although McGaster testified that Whittaker had previously shot a gun into vehicle in which McClain was riding and that a gun was removed from Whittaker’s pocket on the night of the murder, there was no evidence indicating that Whittaker had threatened McClain or provoked him in any way immediately before the shooting on September 1, 2006. There is no evidence to support an instruction on reckless manslaughter or heat-of-passion manslaughter. Therefore, the circuit court did not err in not instructing the jury on the lesser-ineluded offense of reckless manslaughter.

Based on the foregoing, the circuit court’s judgment is affirmed.

AFFIRMED.

WISE, P.J., and MAIN, J., concur.

WINDOM, J., concurs in the result.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

In Part I of its opinion, the majority holds that the trial court properly admitted evidence of a collateral crime by Trenton J. McClain because the prior crime was “sufficiently similar” to the present crime to fall under the identity exception or the common plan, scheme, or design exception to the exclusionary rule. I disagree.

The facts of this case are simple. On the evening of September 1, 2006, Jamu-ary Whittaker, Robert Williams, Brianna Washington, Derrick Hunt, and Charlie McGaster were in the parking lot of a club in Gainestown called the Chicken Coop when McClain approached and shot Whit-taker in the neck with a shotgun, killing him. Eyewitnesses to the crime testified at trial that they saw McClain shoot Whit-taker; that Whittaker and McClain had not spoken or had a disagreement that evening; and that Whittaker was unarmed at the time of the shooting. Another eyewitness, however, testified that, after the shooting, a friend of Whittaker’s removed a gun from Whittaker’s pocket. Testimony indicated that McClain and Whittaker had had a disagreement several weeks earlier, but that disagreement was believed by witnesses to have been resolved before the September 1 shooting. Shortly after the shooting, McClain turned himself into police and was charged with murder.

Before trial, the State gave notice of its intent to introduce, under Rule 404(b), Ala. R. Evid., evidence that McClain had previously shot a man in 2002 named Marcus Belton at another club in Gainestown, owned by the same man who owned the Chicken Coop. McClain filed a motion in limine to prohibit introduction of this evidence, arguing that it was being offered solely to show McClain’s bad character. In response, the prosecutor argued:

“Marcus Belton was a shooting that occurred at the Chicken Coop,[] which is the location in Gainestown where this incident occurred. The allegation is that Mr. McClain shot Mr. Belton with a firearm at that same location where this case happened. Certainly, it is so similar in nature that we feel it would fall squarely within Rule 404(b). And although he wasn’t convicted on it, as the Court is well aware Rule 404(b) doesn’t require a conviction for that evidence to be offered.”

(R. 9.) The trial court denied McClain’s motion in limine. When the State called Belton to testify, McClain again objected, challenging the relevancy and materiality of the evidence. The prosecutor argued that he was offering the evidence to show motive, intent, identity, and a common plan, scheme, or design and that the prior shooting was similar to the present crime because it occurred at a club owned by the same owner as the Chicken Coop and the shot was fired at the “same location on the body.” (R. 252.) McClain’s counsel then argued that there were not enough similarities in the crimes to make evidence of the prior shooting admissible, to which the State replied: “It’s like a sexual abuse case. He’s got a history of violence involved at night clubs when drinking and involving firearms.” (R. 252.) The trial court overruled McClain’s objection, and Belton testified that in June 2002, he was at a club owned by the same man who owned the Chicken Coop when McClain shot him in the collar-bone area with a handgun.

Rule 404(b), Ala. R. Evid., provides, in relevant part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...”

In Nicks v. State, 521 So.2d 1018 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.1988), this Court explained:

“Under Alabama law, evidence of any offense other than that specifically charged is prima facie inadmissible. Allen v. State, 380 So.2d 313 (Ala.Cr.App.1979), cert. denied, 380 So.2d 341 (Ala.1980), cert. denied, 449 U.S. 842, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). However, Alabama law provides for the admissibility of evidence of collateral crimes or acts as part of the prosecution’s casein-chief if the defendant’s collateral misconduct is relevant to show his guilt other than by suggesting that he is more likely to be guilty because of his past misdeeds. Brewer v. State, [440 So.2d 1155 (Ala.Crim.App.1983) ]. Numerous Alabama cases list the exceptions to the general exclusionary rule, or tests for relevancy, whereby evidence of collateral crimes or acts may be admitted. These exceptions include the following:
“ ‘(1) Relevancy to prove physical capacity, skill, or means to commit the now-charged crime; (2) part of the res gestas or part of a continuous transaction; (3) relevancy to prove scienter or guilty knowledge; (4) relevancy to prove criminal intent; (5) relevancy to prove plan, design, scheme, or system; (6) relevancy to prove motive; (7) relevancy to prove identity; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes.’
“Nelson v. State, 511 So.2d 225, 233 (Ala.Cr.App.1986).”

521 So.2d at 1025-26. “Evidence of collateral crimes is ‘presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.’ ” Woodard v. State, 846 So.2d 1102, 1106 (Ala.Crim.App.2002), quoting Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000).

As the majority recognizes, the common plan, scheme, or design exception to the exclusionary rule “is essentially coextensive with the identity exception” and must be analyzed under the same standards. Ex parte Darby, 516 So.2d 786, 789 (Ala.1987). “[T]he plan, scheme, or design exception is an extension of the identity exception — where the charged crime and the collateral crime are committed in the same novel or peculiar manner, evidence of the collateral crime is admissible to identify the defendant as the perpetrator of the charged crime.” Register v. State, 640 So.2d 3, 6 (Ala.Crim.App.1993), aff'd, 680 So.2d 225 (Ala.1994). “ ‘When extrinsic offense evidence is introduced to prove identity, the likeness of the offenses is the crucial consideration. The physical similarity must be such that it marks the offenses as the handiwork of the accused.’ ” Ex parte Baker, 780 So.2d 677, 680 (Ala.2000), quoting United States v. Clemons, 32 F.3d 1504, 1508 (11th Cir.1994) (further citations omitted). “ ‘[Ejvidence of a prior crime is admissible only when the circumstances surrounding the prior crime and those surrounding the presently charged crime “exhibit such a great degree of similarity that anyone viewing the two offenses would naturally assume them to have been committed by the same person.” ’ ” Irvin v. State, 940 So.2d 331, 347 (Ala.Crim.App.2005), quoting Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting in turn Brewer v. State, 440 So.2d 1155, 1161 (Ala.Crim.App.1983). “ ‘Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated ... rapes [or shootings]. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” Hurley v. State, 971 So.2d 78, 83 (Ala.Crim.App.2006), quoting 1 McCormick on Evidence § 190 at 801-03 (4th ed. 1992) (footnotes omitted).

I agree with the majority that Belton’s shooting and Whittaker’s shooting have some similarities: both occurred at clubs in Gainestown owned by the same man and both resulted in gunshot wounds to the same general area of the victims’ bodies. However, as the Alabama Supreme Court noted in Ex parte Arthur, 472 So.2d at 668-69, factors “common to both [crimes] ... cannot be taken out of context to stand alone for comparison .... [but] [t]he entire circumstances surrounding both [crimes] must be compared.”

Both shootings occurred at clubs, but at different locations. The fact that both clubs were owned by the same man is not relevant in this context, in my view, because nothing in the record indicates that the ownership of the clubs in question had any bearing whatsoever on either shooting. In addition, although both gunshot wounds were in the same general area of the body on the victims, i.e., above the chest, they were not in the exact same location- — Whit-taker was shot in the neck; Belton was shot in the collar bone. Moreover, there are substantial differences between the two shootings. The Belton shooting involved a handgun, while the Whittaker shooting involved a shotgun. The Belton shooting occurred as Belton was walking out of the door of the club, while the Whittaker shooting occurred as Whittaker was standing in the parking lot, having yet to even enter the club. In addition, testimony indicated that the Belton shooting was preceded by a specific warning from one of McClain’s friends to Belton that McClain was going to shoot Belton, while no such specific warning occurred with the Whittaker shooting. Finally, Belton survived his shooting, while Whittaker did not. Analyzing all the circumstances of these crimes, I do not believe that a reasonable person would naturally assume that both of these crimes were committed by the same person. The two shootings were not so unusual and distinctive and were not committed in such a novel and peculiar manner as to make the prior shooting admissible pursuant to the identity or common plan, scheme or design exceptions to the exclusionary rule.

Nor do I believe that the prior shooting was admissible to show McClain’s motive or intent, as the prosecutor also argued at trial. My review of the record reveals nothing indicating any relation whatsoever between the Belton shooting and the Whit-taker shooting that had a logical tendency to lead to any inference that McClain, because he had previously shot Belton in 2002, had the intent to kill Whittaker in 2006, or was somehow motivated to kill Whittaker. See, e.g., Hurley v. State, 971 So.2d 78 (Ala.Crim.App.2006), and Moore v. State, 878 So.2d 328 (Ala.Crim.App.2003). Rather, I think the prosecutor’s statement during trial fairly sums up the true purpose of this evidence: “He’s got a history of violence involved at night clubs when drinking and involving firearms.” (R. 252.) The evidence of the prior shooting did nothing more than show McClain’s bad character and history of violence, and this is not a proper purpose for admission of the evidence.

Because I do not believe that evidence of McClain’s collateral crime was admissible under any of the exceptions in Rule 404(b), I must respectfully dissent.

      . The prosecutor later conceded that this statement was incorrect; the previous shooting occurred at a different club that was owned by the same person who owned the Chicken Coop.

      . I note that there was no evidence presented indicating that McClain was actually drinking the night of the Whittaker shooting or the night of the Belton shooting.

      . There is no question here that McClain’s identity was at issue. McClain presented testimony from McGaster that McGaster did not see McClain in the vicinity at the time of the shooting. McClain's counsel also cross-examined some of the State’s witnesses regarding the lighting at the time of the shooting and their ability or inability to see the shooter.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Michael Shawn DOOLEY v. STATE of Alabama.
    CR-07-1869.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.
    Jeffrey B. Austin, Florence, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Michael Shawn Dooley, was indicted on March 6, 2008, by a Laud-erdale County grand jury for two counts of unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala. Code 1975. Both counts of the indictment, in pertinent part, read:

“Michael Shawn Dooley ... did unlawfully and willfully sell, furnish, give away, deliver, or distribute a controlled substance, to-wit: Hydrocodone, in Lauderdale County, Alabama.”

(R. 22.) On March 25, 2008, Dooley filed a plea of not guilty and a waiver of arraignment. The State subsequently nol-prossed the second count of the indictment.

On April 18, 2008, the State filed a notice of sentence enhancement informing Dooley of its intent to prove and invoke a five-year sentence enhancement for the sale of drugs within three miles of a school pursuant to § 13A-12-250, Ala.Code 1975, and a five-year sentence enhancement for the sale of drugs within three miles of a housing project pursuant to § 13A-12-270, Ala. Code 1975.

On April 29, 2008, Dooley executed an “Explanation of Rights and Guilty Plea” form, sometimes referred to as an Ireland form. The form indicated that Dooley was pleading guilty to the unlawful distribution of a controlled substance; it further indicated the applicable sentencing range given his one prior felony conviction. The form did not apprise Dooley of the application of the sentencing enhancements under § 13A-12-250 and § 13A-12-270. On the same day that Dooley signed the explanation-of-rights form, he entered a plea of guilty before the circuit court. The circuit court deferred acceptance of Dooley’s guilty plea and set the matter for a sentencing hearing on June 12, 2008.

On June 12, 2008, counsel for Dooley and the State filed briefs in the circuit court supporting their respective positions regarding the imposition of the sentence enhancements. That same day, Dooley filed a motion to withdraw his guilty plea. In his motion, Dooley argued that he should be allowed to withdraw his guilty plea because, in pertinent part, he argued, (1) the sentence enhancements were not alleged in the indictment; (2) the application of sentence enhancements, if allowed, would affect the sentencing range that was explained to Dooley in the plea-negotiation process; and (3) the application of the sentence enhancements would increase the maximum sentence that was explained to Dooley by his trial counsel. After considering the arguments of both parties, the circuit court, on June 12, 2008, denied Dooley’s motion to withdraw his guilty plea.

Following a hearing, at which it considered evidence regarding the proximity of three schools and a housing project in relation to the location where Dooley sold the drugs, the circuit court sentenced Dooley, as a habitual offender, to 25 years’ imprisonment. Dooley’s 25-year sentence included a 5-year enhancement under § 13A-12-250, Ala.Code 1975, because the sale occurred within three miles of a school, and a 5-year enhancement under § 13A-12-270, Ala.Code 1975, because the sale occurred within three miles of a housing project. The court ordered Dooley to pay $50 to the crime victims compensation fund, a fíne of $2,000 pursuant to the Drug Demand Reduction Assessment Act, and $100 to the Alabama Forensic Services Trust Fund.

On June 16, 2008, Dooley filed a post-judgment motion requesting the circuit court to reconsider its denial of his motion to withdraw. In his motion, Dooley argued (1) that the indictment did not allege any statutory enhancements; (2) that he pleaded guilty to only one count of the indictment; and (3) that the State did not specify in its April 18, 2008, notice which count of the two-count indictment it was seeking to apply the sentence enhancements to. The circuit court denied the motion on June 24, 2008. Dooley’s trial counsel subsequently withdrew from the case, and another attorney was appointed by the circuit court to represent Dooley.

On July 14, 2008, newly appointed counsel for Dooley filed a motion for a new trial, a motion for arrest of judgment, motion for judgment of acquittal and motion to withdraw Dooley’s guilty plea, reasserting issues raised in the earlier post-judgment motion, as well as asserting new issues not previously raised; however, this motion, filed more than 30 days after the circuit court pronounced sentence against Dooley, was untimely. See Rule 24.1, Ala. R.Crim. P.; see also Allen v. State, 883 So.2d 737 (Ala.Crim.App.2003)(a motion to withdraw a guilty plea filed more than 30 days after the date that sentence pronounced was untimely). On July 24, 2008, Dooley filed a notice of appeal, and on July 30, 2008, the circuit court purported to enter an order denying Dooley’s July 14, 2008, postjudgment motion.

Dooley raises nine issues on appeal; however, the dispositive issue is whether Dooley knowingly, intelligently, and voluntarily entered a guilty plea. Dooley contends on appeal that he did not knowingly, intelligently, and voluntarily enter his guilty plea because, he says, he was misinformed regarding the correct sentencing range in light of the enhancements and the circuit court failed to advise him that the sentence enhancements had to be served consecutively in addition to the minimum sentence.

The record reflects that, during the guilty-plea colloquy, the following transpired:

“Q. [THE COURT:] ... In Count 1, [Dooley] is charged with unlawfully selling, furnishing, giving away or delivering Hydrocodone. I have an explanation of rights and a plea of guilty form. Do you recognize the form?
“A. [DOOLEY:] Yes, sir.
“Q. Is that your signature on the back?
“A. Yes, sir.
“Q. Have you been over this with your attorney?
“A. Yes, sir.
“Q. Has he explained it to you?
“A. Yes, sir.
“Q. Do you have any questions about it?
“A. No, sir.
“Q. Do you understand the nature of the offense?
“A. Yes, sir, I do.
“Q. Do you understand the possible punishment?
“A. Yes, sir, I do.
“THE COURT: And the possible punishment I assume would include the possibility of some enhancements if proven by the State.
“[THE PROSECUTOR:] Yes, sir.
“Q. (By the Court) Do you understand all of that?
“A. Yes, sir, I do.
“Q. Do you understand that you don’t have to plead guilty?
“A. Yes, sir, I do.
“Q. Do you understand the rights you’re giving up if you plead guilty?
“A. I do, sir.
“Q. You’re giving up the right to a jury trial, the right to confront the witnesses, the right to testify in your own behalf, the right to present evidence and witnesses on your behalf, the right to subpoena witnesses and the right to appeal if convicted. Do you understand you’re giving those rights up?
“A. Ido.
“Q. You said you understood everything on this form; is that right?
“A. Yes, sir.
“Q. Has your attorney done a good job for you?
“A. Yes, sir, he has.
“Q. Do you have any complaints about his representation?
“A. No, sir, I do not.
“Q. Has anyone forced you or threatened you or coerced you in any way to get you to plead guilty?
“A. No, sir.
“Q. Have they promised you anything?
“A. No, sir.
“Q. To the charge of unlawful distribution of a controlled substance as charged in Count 1 of the indictment, unlawful distribution of Hydrocodone, how do you plead?
“[DEFENSE COUNSEL]: Your Honor, just before the time of the— his plea of guilt as it relates to that count, I would just want to articulate for the record if the Court will allow me to. We’re not conceding that it’s within a three-mile radius of a school zone nor, Your Honor, are we conceding that it’s within a three-mile radius of a public housing project under [§§ ] 13A-12-250 and 13A-12-270. That’s a question of fact and we’re going to contend, Your Honor, that that would be a question of fact for the jury to determine and it’s not alleged in the indictment; that being said with that reservation, Your Honor, we’ll take that up at the sentencing hearing if the Court will allow me to. Now you can enter your plea.
“A. Guilty.”

(R. 63-66.)

At the June 12, 2008, sentencing hearing, counsel for Dooley moved to withdraw his client’s guilty plea. Counsel informed the circuit court that, when discussing the “Explanation of Rights and Guilty Plea” form with Dooley, he did not indicate on the form that the sentence enhancements found in § 13A-12-250 and § 13A-12-270 applied. Further, counsel stated that he did not discuss with Dooley the possibility of the sentence enhancements “increasing [his sentence] to over 20 years or the possibility of that coming in.” (R. 17.) Counsel also represented to the circuit court as follows: “Your Honor, when we sat down and we discussed this, I cannot tell you as an officer of the court that I told him that he was facing with enhancements what it would mean if he went down to prison with those enhancements.” (R. 20.) Counsel concluded by saying:

“Your Honor, we think that it would be manifest injustice to cause [Dooley] to go forward right now knowing that the enhancements might apply, that I sat down to talk to him about the sentencing range but we didn’t specifically discuss in this Ireland form, the plea-of-guilt form, about the statutory enhancements and what they meant and there’s no probation nor suspension of a sentence by statute and that we ask that this case be — the plea of guilt be -withdrawn.”

(R. 20.)

It is well established precedent that the circuit court must notify a defendant of the correct sentencing range when the defendant pleads guilty.

“ ‘The Alabama Supreme Court and this Court “have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.” Ex parte Rivers, 597 So.2d 1308, 1309 (Ala.1991). It is well settled, moreover, that “if the appellant’s sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute.” Elrod v. State, 629 So.2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So.2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So.2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So.2d 182 (Ala.Cr.App.1986).’ ”

Kennedy v. State, 698 So.2d 1174, 1177 (Ala.Crim.App.1997) (quoting Aaron v. State, 673 So.2d 849, 849-50 (Ala.Crim.App.1995)(emphasis added in Kennedy)).

Furthermore, this Court has stated:

“ ‘[T]he Alabama Supreme Court held that “a defendant, prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime” by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So.2d 869 (Ala.Cr.App.1996); Pritchett v. State, 686 So.2d 1300 (Ala.Cr.App.1996); Knight v. State, 55 Ala.App. 565, 317 So.2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975). This holding is supported by 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. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures 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.’ ”

Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998) (quoting Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996)).

Rule 14.4, Ala. R.Crim. P., provides, in pertinent part:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions

(Emphasis added.) However, under Rule 14.4(d), Ala. R.Crim. P., “[t]he court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form C-44B, CR-51, CR-52, or C-44A, as the case may be.”

In the instant case, the guilty-plea colloquy indicates that the circuit court questioned Dooley regarding whether he had read the Ireland form and whether he understood the nature of his offense and the possible punishment. However, it is undisputed that the Ireland form did not apprise Dooley of the possible application of the sentence enhancements in § 13A-12-250 and § 13A-12-270. Further, during the guilty-plea colloquy, the circuit court referred to the possibility of the application of some sentence enhancements if proven by the State. No explanation was given regarding the length of those sentence enhancements or the effect of those sentence enhancements on Dooley’s base sentence. Indeed, statements made by Dooley’s trial counsel during the June 12, 2008, hearing seeking to withdraw Dooley’s guilty plea indicate that Dooley was not properly informed regarding the application of the sentencing enhancements.

Based on the foregoing, we hold that Dooley’s guilty plea was involuntary because he was not informed of the minimum and maximum sentence, including the possible effect of the sentence enhancements on his base sentence. Accordingly, the judgment of the circuit court is reversed and this case is remanded to the Lauder-dale Circuit Court so that Dooley may have the opportunity to withdraw his guilty plea and to enter another plea after he has been informed of the correct sentencing range, including the effect of the application of any sentence enhancements to his sentence, or for such other proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).


author: PER CURIAM.

text:
    Mark Allen DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. SC08-1808.
    Supreme Court of Florida.
    Nov. 5, 2009.
    Rehearing Denied Jan. 11, 2010.

      Linda McDermott of McClain and McDermott, P.A., Wilton Manors, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Candance M. Sabella, Chief Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

Mark Allen Davis, a prisoner under sentence of death, seeks review of an order of the circuit court summarily denying his successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. Under our mandatory jurisdiction to review this final order, we affirm because the newly discovered evidence would not probably produce an acquittal on retrial or result in different sentences, and the claims under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), are facially insufficient. See art. V, § 3(b)(1), Fla. Const.

BACKGROUND

In 1987, Davis was convicted of premeditated first-degree murder, armed robbery, and grand theft in connection with the death of Orville Landis, which resulted in a sentence of death. See Davis v. State, 586 So.2d 1038, 1040 (Fla.1991) (Davis I), vacated, 505 U.S. 1216, 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). We affirmed the convictions and sentences on direct appeal. See Davis I, 586 So.2d at 1042. Davis then petitioned the United States Supreme Court for review and was granted relief. See Davis v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). The High Court vacated the judgment and remanded to this Court for further' consideration. See id. On remand, this Court reaffirmed the death sentence. See Davis v. State, 620 So.2d 152 (Fla.1993) (Davis ID, cert. denied, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 552 (1994).

Next, Davis filed an initial motion for postconviction relief which the trial court denied. Davis sought review of that order in this Court and also filed his petition for writ of habeas corpus. We affirmed the order of the postconviction trial court and denied the petition. See Davis v. State, 928 So.2d 1089, 1137 (Fla.2005) (Davis III). Thereafter, Davis filed a second petition for writ of habeas corpus in this Court, which was also denied. See Davis v. McDonough, 933 So.2d 1153 (table).

In 2008, Davis filed a successive motion for postconviction relief which alleged that newly discovered evidence revealed that witnesses Kimberly Rieck Kearney and Beverly Castle recanted mischaracteriza-tions in their trial testimony. This allegation was based on an unsworn declaration of Kearney and a sworn affidavit of Castle in which each witness expressed that Davis was more intoxicated than they had originally testified during his trial. In addition, Castle recanted her original trial testimony that Davis informed her that he intended to “do away with” the victim which she had explained during the trial as a plan by Davis to murder the victim. Kearney’s new declaration also included a statement that she testified at trial pursuant to a threat from an unidentified individual that her boyfriend would remain in jail if she failed to appear.

Davis asserted that these recantations constituted newly discovered evidence which also established both Brady and Giglio violations and demonstrated ineffective assistance of counsel. In addition, Davis challenged the constitutionality of lethal injection based on newly discovered evidence. Following a Huff hearing, the postconviction trial court entered an order summarily denying Davis’s motion. The court below determined that the motion was insufficiently pled and that the affidavit and declaration did not constitute newly discovered evidence. Further, the post-conviction trial court was of the view that there had been a lack of due diligence and that the motion failed to demonstrate that Davis was entitled to relief. Davis submitted a motion for rehearing in which he corrected the pleading deficiencies noted by the postconviction trial court, but this motion was also denied. Davis now seeks review of the order summarily denying his successive motion.

ANALYSIS

Standard of Review

We begin our analysis of these issues by discussing the standard applicable to all. The decision of whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on the written materials before the court, and the ruling of the postconviction trial court on that issue is tantamount to a pure question of law subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003). Accordingly, when reviewing a postconviction trial court’s summary denial of a successive rule 3.851 motion we will accept the factual allegations of the mov-ant as true to the extent that they are not refuted by the record and affirm the ruling if the motion, files, and record conclusively demonstrate that the movant is entitled to no relief. See generally Fla. R.Crim. P. 3.851(f)(5)(B). Further, this Court is guided by the principle that courts are encouraged to liberally view the allegations to allow evidentiary hearings on timely raised claims that commonly í-equire a hearing. See generally Amendments to Fla. Rules of Crim. Pro. 3.851, 797 So.2d 1213, 1219-20 (Fla.2001).

A defendant must meet two requirements to obtain a new trial based on newly discovered evidence. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must also appear that neither the defendant nor defense counsel could have known of such evidence by the use of diligence. Second, the newly discovered evidence must be of a nature that it would probably produce an acquittal on retrial or yield a less severe sentence. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) (Jones II); Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). In applying this two-prong test, the postconviction trial court must “consider all newly discovered evidence which would be admissible,” and must “evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Jones I, 591 So.2d at 916. This determination necessarily includes consideration of

whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence.

Jones II, 709 So.2d at 521 (citations omitted).

Specifically, recanted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true, and (2) the recanted testimony would probably render a different outcome in the proceeding. See Armstrong v. State, 642 So.2d 730, 735 (Fla.1994). The determination of whether the statements are true and meet the due diligence and probability prongs of Jones II usually requires an evidentiary hearing to evaluate credibility unless the affidavit is inherently incredible or obviously immaterial to the verdict and sentence. See Stephens v. State, 829 So.2d 945 (Fla. 1st DCA 2002) (citing Robinson v. State, 736 So.2d 93, 93 (Fla. 4th DCA 1999); Venuto v. State, 615 So.2d 255, 256 (Fla. 3d DCA 1993)).

Facial Insufficiency

The postconviction trial court denied the request for an evidentiary hearing for several reasons, the first being that the motion was facially insufficient because it failed to include some of the technical requirements of rule 3.851(e)(2)(C). Items such as the phone numbers of the witnesses supporting the claim and a boilerplate statement that the witnesses would be available to testify at an evidentiary hearing were not in the initial motion. The postconviction trial court’s denial of relief on this basis was in error because a motion based on newly discovered substantive evidence should not be denied as facially insufficient based simply on easily curable, technical deficiencies in the pleadings without allowing the defendant any opportunity to correct and provide the technical matters. When a postconviction motion fails to comply with the pleading requirements of the rule and the court intends to deny the motion based on these easily curable technical omissions, the proper procedure is for the court to strike the motion with leave to amend within a reasonable period if the technically defective pleadings can be completed and amended in good faith. See Spera v. State, 971 So.2d 754, 761 (Fla.2007) (extending the holding of Bryant v. State, 901 So.2d 810 (Fla.2005), to all initial postconviction motions). The Bryant Court stated that this procedure is necessary because:

While defendants should not be given an unlimited opportunity to amend, due process demands that some reasonable opportunity be given to defendants who make good faith efforts to file their claims in a timely manner and whose failure to comply with the ride is more a matter of form, than substance.

Id. at 819 (emphasis supplied). There is an important distinction between form and substance with regard to matters in this type of case.

Here, the technical omissions were easily curable and clearly a matter of form over substance which could be included in an amended motion. This was not a shell motion providing a skeletal claim for relief that was filed merely to comply with the timing deadlines in anticipation of later amending with a substantive motion. Davis substantially complied with the rule by including the names and addresses of the recanting witnesses and by attaching the attendant declaration and affidavit which contained the substance of their recanted testimony. Consequently, this case is entirely distinguishable from Ventura v. State, 2 So.3d 194 (Fla.2009), where the defendant failed to provide any of the documents upon which his claim rested and “never proffered any witnesses.” 2 So.3d at 196 (emphasis supplied).

Furthermore, when confronted about the technical omissions Davis attempted to cure any deficiencies through an oral presentation of information during the Huff hearing and also in his motion for rehearing which included the witnesses’ respective phone numbers, addresses, and relevancy to the issues presented. Davis offered to submit a written response to amend the asserted pleading deficiencies and the postconviction trial court never indicated that an amended motion was necessary to avoid denial of the motion based on the pleadings. Under these circumstances, the postconviction trial court erroneously concluded that the motion was facially insufficient without providing Davis an opportunity to cure these deficiencies through an amended motion. However, this error does not entitle Davis to relief because even a facially sufficient motion based on the recanted testimony presented would neither probably produce an acquittal on retrial nor probably yield a less severe sentence.

Newly Discovered Evidence

On the substantive issue, the postconviction trial court below summarily denied the motion because the affidavits did not constitute newly discovered evidence because there had been a lack of due diligence. The postconviction trial court ruled that Davis failed to allege specific details with regard to previous efforts undertaken to locate and interview the witnesses and had also failed to provide an explanation as to why the witnesses would be difficult to locate when they resided in Davis’s home town. In addition, the post-conviction trial court concluded that the recanted testimony did not constitute evidence that would probably produce an acquittal on retrial or mitigate the sentence. To support this conclusion, the court below relied on the confession of Davis and the fact that the trial testimony of Kearney and Castle was consistent with their statements on the day that the victim was found.

Due Diligence

The postconviction trial court’s first and primary substantive pleading basis for denying relief was that Davis failed to properly plead due diligence. This was in error. Under the first prong of Jones II, the statements made during the Huff hearing in conjunction with the assertions in the motion established a prima facie case of diligence sufficient to require an evidentiary hearing. Specifically, counsel informed the postconviction trial court during the hearing that investigators conducted computer searches to locate the witnesses and traveled to Illinois in an attempt to find them. However, upon traveling to Illinois the investigators were unable to contact the witnesses. At the pleading stage, this information was sufficient to establish due diligence. See Swaf-ford v. State, 679 So.2d 736, 739 (Fla.1996) (concluding that at the pleading stage, counsel’s claim that an affidavit amounted to newly discovered evidence combined with a statement that counsel was unable to locate a witness because no address was available was sufficient for the purpose of demonstrating that an evidentiary hearing was required).

Here, as in Swafford, the State’s only argument to dispute due diligence was that defense counsel had “years” to find the witness. See id. Regardless of the time span from the time of trial to the discovery of the new testimony, recanted testimony cannot be “discovered” until the witness chooses to recant. See Burns v. State, 858 So.2d 1229, 1230 (Fla. 1st DCA 2003) (“Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the code-fendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence.”). Logically, even if counsel had or could have located these witnesses at an earlier date such earlier date does not conclusively establish that the witnesses would have recanted their testimony at that earlier time.

The postconviction trial court appears to have incorrectly applied the heightened requirements to establish due diligence during an evidentiary hearing to evaluate the allegations at a pleading stage. However, permitting a newly discovered evidence claim to proceed to an evidentiary hearing does not establish that the recanted testimony qualifies as newly discovered evidence as a matter of law. See Siuafford, 679 So.2d at 739. The newly discovered evidence claim remains to be factually tested in an evidentiary hearing to determine whether the defendant has demonstrated that the successive motion has been filed within the time limit for when the statement was or could have been discovered through the exercise of due diligence. See id. The motion here was sufficiently pled to allow the opportunity to prove through the testimony of witnesses that the threshold requirement of due diligence was satisfied. Accordingly, the postconviction trial court erred in summarily denying this claim on the basis that the pleading failed to sufficiently satisfy the due diligence requirement at that stage of the proceeding.

Probability of Altering the Outcome

A newly discovered evidence claim must satisfy both prongs of Jones II which requires that we address whether the recanted testimony demonstrates a probability of altering the verdict and sentences. With regard to this aspect of the Jones II analysis, the postconviction trial court correctly concluded that the recanted testimony with regard to intoxication does not produce a probability that the verdict or sentence would change based on this Court’s prior precedent and the evidence presented during the original trial. The recanted testimony which merely states that Castle and Kearney now believe Davis was intoxicated on the day of the murder would not alter the outcome of the trial because it is cumulative to the evidence already presented to the jury. See Davis III, 928 So.2d at 1112 (concluding that trial counsel effectively presented evidence of Davis’s intoxication through the cross-examination of Kearney and Castle). Therefore, the postconviction trial court correctly evaluated the negligible impact of this evidence.

Notwithstanding the correct result with regard to the intoxication issue, the postconviction trial court failed to consider and address the more troubling aspect of the recanted testimony. Nothing in the record refutes Castle’s statement that Davis never said he planned “to do away with” the victim. Castle testified to the contrary during the original trial that Davis said he planned to “do away with” the victim. This statement was a significant piece of evidence directed to prove Davis’s premeditation during the guilt phase and to support the imposition of an aggravating circumstance in the penalty phase. To support the finding that the murder was cold, calculated, and premeditated (“CCP”), the original trial court relied, in part, on Castle’s testimony that Davis stated earlier in the day that he was going to “rip the [victim] off and do away with him.” In the direct appeal this Court approved the determination that Castle’s statement, coupled with the testimony of the medical examiner, was sufficient evidence to support CCP. See Davis I, 586 So.2d at 1040. Furthermore, during the evidentiary hearing on the initial postcon-viction motion, trial counsel testified that the statements of Castle and Kearney were a hindrance to the defense strategy because they established either premeditated or felony murder. Castle’s recantation of the statement that was utilized to indicate Davis’s intent to kill the victim is generally the type of testimony that would require an evidentiary hearing. This type of evidence under these circumstances impacts both the premeditation element established in the guilt phase and the elements necessary for CCP to be proven in the penalty phase. Thus, the court below erred in summarily denying this claim without allowing Davis an opportunity to present evidence in support of it during an evidentiary hearing.

However, our ultimate analysis is that this claim was properly denied on the alternative basis that the recantation would not eliminate the other evidence supporting premeditation to commit the murder and the proportionality of the death sentence. Even if we assume an evidentiary hearing had been conducted and Davis provided sufficient evidence to strike the CCP aggravating factor, the recantation would not eliminate Davis’s confession and the additional, nonrecanted testimony that he said he planned to “rip [the victim] off.” First, the witnesses’ new interpretation of these statements does not probably change the ability of the jury to interpret the statements during the guilt phase to mean that Davis intended to rob the victim. If the jury interpreted these statements to mean Davis planned to rob the victim, the capital conviction would be supported under the theory of felony murder.

Next, Davis confessed that he stabbed the victim, allegedly in self-defense, but when the first knife used in the murder fractured, Davis retrieved a second knife to finish the deed. Multiple stab wounds deliberately aimed at vital organs support a finding of premeditation for first-degree murder. See Perry v. State, 801 So.2d 78, 85-86 (Fla.2001) (citing Jimenez v. State, 703 So.2d 437, 440 (Fla.1997)). In addition, “[premeditation may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Boyd v. State, 910 So.2d 167, 181 (Fla.2005) (internal quotation nrarks omitted). When the knife broke Davis made the conscious decision to obtain the second knife to complete the murder. The medical examiner testified that

the victim sustained multiple stab wounds to the back, chest, and neck; multiple blows to the face; was choked or hit with sufficient force to break his hyoid bone; was intoxicated to a degree that impaired his ability to defend himself; and was alive and conscious when each injury was inflicted. The evidence showed that the slashes to the victim’s throat were made with a small-bladed knife, which was broken during the attack, and the wounds to the chest and back were made with a large butcher knife, found at the crime scene.

Davis I, 586 So.2d at 1040. Thus, Davis’s confession that he stabbed the victim with two different knives, coupled with the testimony of the medical examiner that the victim sustained stab wounds to the back, chest, and neck, supports a finding of premeditated first-degree murder.

As to the proportionality of the death sentence, the original trial court found multiple aggravating circumstances in support of the penalty other than CCP. These included the findings that (1) the murder was heinous, atrocious, or cruel (“HAC”); (2) that the murder was committed while Davis was under a sentence of imprisonment; and (3) the collective aggravating circumstance that the murder was committed for pecuniary gain, that Davis had previously been convicted of another capital offense or felony involving the use of or threat of violence to some person, and that the murder was committed while Davis was engaged in the commission of a robbery. The recanted testimony would not affect the imposition of these aggravating circumstances which were based on other evidence.

This Court has determined that the death penalty was a proportionate sentence in cases that involved only the HAC aggravating circumstance. See, e.g., Butler v. State, 842 So.2d 817, 833 (Fla.2003); Blackwood v. State, 777 So.2d 399, 412-13 (Fla.2000); Cardona v. State, 641 So.2d 361, 365-66 (Fla.1994). Further, the original trial court did not find any mitigating circumstances to be considered and weighed against the multiple aggravators. Thus, even if the recantation were accepted and the CCP aggravating factor eliminated, this Court would still find that the death penalty is a proportionate penalty in this case.

The newly discovered evidence claim provides Davis with no relief from his judgments and sentences because the recantation does not refute the additional evidence presented at trial to demonstrate premeditation, felony murder, and the proportionality of the death sentence. Even if we assume that the recantation would eliminate Castle’s original testimony as support for premeditation and CCP, the newly discovered evidence still would not undermine the evidence against Davis such that it would give rise to a reasonable doubt as to his culpability and also would not demonstrate that admitting it would probably yield a less severe sentence. See Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)); Jones I, 591 So.2d at 915. Accordingly, the motion was properly denied because the record conclusively demonstrates that Davis is not entitled to relief.

Brady

Davis also alleges that the newly discovered evidence established a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the postconviction trial court’s summary denial of this claim because the motion does not demonstrate a prima facie case that the State willfully or inadvertently suppressed material evidence within its possession or control that was favorable to the defense. To establish a Brady violation, the defendant has the burden to show that (1) either exculpatory or impeaching evidence, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); 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 or recommended a life sentence. See Strickler, 527 U.S. at 289, 119 S.Ct. 1936. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickler, 527 U.S. at 290, 119 S.Ct. 1936; Way, 760 So.2d at 913. The remedy of a new trial for a Brady violation is only 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 [and sentence].” 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)). Giving deference to the trial court on questions of fact, this Court reviews de novo the application of the law and independently reviews the cumulative effect of the alleged suppressed evidence. See Mordenti v. State, 894 So.2d 161, 169 (Fla.2004); Way, 760 So.2d at 913.

Davis has not satisfied his burden to demonstrate that the State willfully or inadvertently suppressed favorable, material evidence. The conclusory allegations in the pleading fail to specifically set forth that the State had any knowledge of the substance or motives behind Kearney’s testimony. Given that the alleged recantation is newly discovered, there is no basis to claim that the State withheld this information from Davis.

Even if the newly discovered evidence is considered as impeaching information that should be considered in conjunction with the evidence presented during trial, the testimony still does not satisfy the materiality prong. This Court has already held that Davis could not establish prejudice with regard to the State allegedly suppressing statements from several witnesses concerning Davis’s level of intoxication. See Davis III, 928 So.2d at 1115.

We agree with trial counsel that he accomplished his goal of placing evidence of intoxication before the jury during his detailed cross-examination of the State’s witnesses. Additionally, trial counsel stated that once he had placed this evidence before the jury, he had no desire to call any other witnesses with information regarding Davis’s intoxication because he did not want to relinquish the ability to present the first and last closing arguments. Given this strategy, we conclude that even if the statements to which Davis refers were not disclosed to his defense team, these witnesses would not have been presented to the jury. Therefore, our confidence in the outcome of the proceeding is not undermined.

Davis III, 928 So.2d at 1115 (emphasis supplied). The recantation does not alter this conclusion. Therefore, we affirm the postconviction trial court’s summary denial of this issue because the recantation does not present a reasonable probability of affecting the conviction or sentence.

Giglio

Alternatively, Davis asserts that the recantation establishes a claim under Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), that the State knowingly presented false testimony against the defendant. A Giglio violation is demonstrated when (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. See Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). Once the first two prongs are established, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury’s verdict. See id. at 1050-51. Under this standard, the State has the burden to prove that the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt. See id. at 1050; see also Mordenti, 894 So.2d at 175. 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. Because Giglio claims present mixed questions of law and fact, we defer to those factual findings supported by competent, substantial evidence, but review de novo the application of the law to the facts. See Sochor v. State, 883 So.2d 766, 785 (Fla.2004).

We affirm the postconviction trial court’s summary denial of this claim because the motion failed to make a prima facie case of a Giglio violation. Specifically, Davis failed to include any allegations which demonstrate that the State had knowledge of the allegedly false statements made by Castle and Kearney during the capital trial. Neither the affidavit nor the motion indicates the identity of the individual who threatened Kearney. Davis merely asserted in his motion: “If pressure was placed on the witnesses to testify in a particular manner, then it was necessary that trial counsel be provided with such information so that he could effectively represent Mr. Davis.” (Emphasis supplied.) There is no indication that Davis has any evidence to support the Giglio claim beyond the unsworn assertion of Kearney that her testimony was prompted by threats from an unknown party. Without further evidence to demonstrate that the State knowingly presented false testimony, Davis is unable to satisfy the first two prongs of the Giglio test. Accordingly, we affirm the postconviction trial court’s summary denial of this claim.

Ineffective Assistance

Lastly, Davis advances that the newly discovered evidence established that his counsel provided ineffective assistance. 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 held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxtuell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Under this standard, Davis has failed to demonstrate that the recanted testimony had a reasonable probability of changing the outcome, which is a probability sufficient to undermine our confidence in the verdict. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In his motion, Davis failed to allege specific facts to establish either deficient performance or prejudice, which are necessary to demonstrate entitlement to an evidentiary hearing. See Jones v. State, 998 So.2d 573, 587-88 (Fla.2008) (citing Rhodes v. State, 986 So.2d 501, 513-14 (Fla.2008); Doorbal v. State, 983 So.2d 464, 483 (Fla.2008); Spera, 971 So.2d at 758). Here, the motion stated that the “circumstances surrounding [Kearney] and Castle’s trial testimony was not known to trial counsel or if it was known [then] trial counsel was ineffective in failing to inform the jury of the witnesses’ true motive for testifying.” (Emphasis supplied.) In addition, counsel stated during the Huff hearing that other than the record there was no further documentary evidence to prove these claims. Consequently, Davis failed to allege any specific facts that would establish ineffective assistance. This is a deficiency that could not be corrected through an amendment to the motion thereby rendering this claim legally insufficient. See Spera, 971 So.2d at 755. Absent a specific allegation that trial counsel was informed that Castle lied with regard to the statement that Davis planned to “do away with” the victim, trial counsel could not be deficient for failing to pursue a recantation of testimony that was neither suspect nor clearly false. In other words, without defense counsel being informed of or discovering perjury, counsel would be in the dark as to its falsity. Counsel cannot be expected to seek recantations of every witness without some indication that the testimony was false. Even if Davis could amend the pleading to set forth specific facts establishing ineffective assistance of counsel, this would inevitably undermine his newly discovered evidence claim because trial counsel would have known of the perjury at the time of trial and would have needed to make some efforts during this time to establish due diligence. Thus, the motion clearly demonstrates that Davis has no sufficient allegations to support this claim.

Further, Davis would not be able to demonstrate prejudice even if an eviden-tiary hearing were granted on this claim because the recantation does not establish a probability of changing the outcome, such that it undermines this Court’s confidence in the verdict. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Thus, we affirm the postconviction trial court’s summary denial of this claim.

CONCLUSION

For the reasons stated above, we affirm the postconviction trial court’s denial of relief.

It is so ordered.

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

QUINCE, C.J., recused.

      . In addition, the trial court sentenced Davis to life imprisonment on the robbery conviction and five years' imprisonment on the grand theft conviction. See Davis v. State, 928 So.2d 1089, 1102 (Fla.2005) (Davis III). Further factual details of the evidence presented during the capital proceedings can be found in our prior decisions. See Davis III, 928 So.2d at 1102-04; Davis I, 586 So.2d at 1040.

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

      . We affirm the lethal-injection claim without further analysis because the decisions in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and Tompkins v. State, 994 So.2d 1072, 1081 (Fla.2008), cert. denied, - U.S. -, 129 S.Ct. 1305, - L.Ed.2d - (2009), foreclose relief on this issue. See also Ventura v. State, 2 So.3d 194, 200 (Fla.), cert. denied, - U.S. -, 129 S.Ct. 2839, 174 L.Ed.2d 562 (2009); Power v. State, 992 So.2d 218, 220-21 (Fla.2008); Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Schwab v. State, 995 So.2d 922, 933 (Fla.), cert. denied, - U.S. -, 128 S.Ct. 2996, 171 L.Ed.2d 911 (2008); Woodel v. State, 985 So.2d 524, 533-34 (Fla.), cert. denied, - U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 465 (2008); Lebron v. State, 982 So.2d 649, 666 (Fla.2008); Schwab v. State, 982 So.2d 1158, 1159-60 (Fla.2008); Lightbourne v. McCollum, 969 So.2d 326, 350-53 (Fla.2007). Furthermore, an evidentiary hearing to present additional witnesses was unnecessary because the proposed testimony of these witnesses has previously been considered and rejected by this Court and therefore does not support a departure from our precedent. See Tompkins, 994 So.2d at 1079-82 (discussing the testimony of the four individuals that Davis attempted to present).