author: COBB, Judge.

text:
    Jimmy Paul KNOX v. STATE of Alabama.
    CR-00-1993.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      ■ Rebecca Green Thomason, Russellville, for appellant.
    Bill Pryor, atty. gen., and Daniel W. Madison, ,asst. atty. gen., for appellee.
   COBB, Judge.

On April 20, 2001, Jimmy Paul Knox was convicted of first-degree robbery, a violation of § 13A-8-41(a).(l), Ala.Code 1975. The trial court sentenced him, as a habitual felony offender, to life in prison. See § 13A-5-9(c)(3), Ala.Code 1975. This appeal followed.

Approximately four months before trial, the trial court granted Knox’s request for a mental evaluation to determine whether he was sane at the time of the crime and whether he was competent to stand trial. However, as discussed in more detail below, on the day of the mental evaluation, the sheriffs deputy who was assigned to transport Knox from jail to Taylor Hardin Secure Medical Facility (hereinafter “Taylor Hardin”) was late in retrieving Knox. Knox arrived too late at Taylor Hardin, and the evaluation was not performed by the time Knox’s trial began a month later. At the beginning of the trial, Knox moved for a continuance because' he had been unable to secure a mental evaluation. After a short hearing, the trial court denied Knox’s motion for a continuance. Knox appeals the denial of that motion.

In his brief on appeal, Knox’s “Statement of the Issue” reads: “Did the trial court deny the Appellant’s right to due process and commit[] reversible error by denying the Defendant’s pretrial mental examination as ordered by the original trial [jjudge when his sanity at the time of the offense was seriously in question?” (Appellant’s brief, p. 6.) Although Knox couches his argument solely in terms of his sanity at the time of the offense, in his “Argument” section he also argues that he should have been evaluated to determine his competency to stand trial. Because we reverse the trial court’s judgment and remand this cause on the basis that the trial court erroneously denied Knox a continuance to allow him to be mentally evaluated to determine his sanity at the time of the crime, we pretermit any discussion of the trial competency issue.

On November 22, 2000, approximately six weeks after his arrest, Knox filed a “Motion for Private Psychiatric Examination and Testing.” In his motion, he requested that he be examined and evaluated “to determine his sanity both at the time of the alleged offense ... and to test his [IQ] and ability to aid his attorneys in his defense.” (C. 17.) On December 14, 2000, the trial judge ordered an outpatient evaluation of Knox’s competency to stand trial and of his mental state at the time of the offense.

On March 9, 2001, the trial judge ordered Knox transported from the county jail to Taylor Hardin for the mental evaluation previously ordered in December 2000. (C. 36.) On March 15, 2001, Knox was transported by a deputy to Taylor Hardin. Because the deputy was late in transporting Knox to Taylor Hardin, Knox was not evaluated to determine his state of mind at the time of the offense. Instead, the doctor only had time to ask a few cursory questions to establish that Knox was not suicidal at that moment and that he, therefore, did not present a danger to himself.

The trial court held a hearing on April 10, 2001, to address Knox’s request for a continuance in order that he may be mentally evaluated as previously ordered by the trial court. The following exchange occurred:

“THE COURT: Mr. Knox, I don’t have the file in front of me to know the exact time, but back a few weeks ago you were transported by officials to Taylor Hardin—
“MR. KNOX: Yes, ma’am.
“THE COURT: — for an evaluation by some psychiatric officials there. And you understand that they were to do an evaluation to make a determination as to whether or not you were mentally competent to do two things: Number one is to assist your attorney in the defense of your case, that is, to be able to communicate and to talk with her and assist in the defense. You understand that?
“MR. KNOX: Yes, ma’am.
“THE COURT: And second thing was to do an evaluation to determine what your mental state was, whether you understood what was going on at the time of the alleged crime.[] You understand that?
“MR. KNOX: Yes, ma’am.
“THE COURT: And it’s my understanding in talking with those officials that they were late in getting you to the evaluation?
“MR. KNOX: Yes, ma’am.
“THE COURT: However, I was also informed by Taylor Hardin that you had indicated you did not wish to have that evaluation. If you would, tell me what you told them?
“MR. KNOX: Your Honor, I didn’t really get a chance to tell them anything. I didn’t think I needed to have an evaluation. I’ve been in prison for four months now and they said he understood, there was not need to come get me all — come all the way down there and I keep running back and forth[. Nothing was getting done.
“THE COURT: Did you talk with the people at Taylor Hardin?
“MR. KNOX: No, ma’am.
“THE COURT: You’re saying you didn’t talk to them at all?
“MR. KNOX: I seen the guy, I guess it’s one of the counselors, and he never even talked to me. They asked me my name and stuff.
“THE COURT: My question is: Did you talk with anyone?
“MR. KNOX: No, ma’am.
“THE COURT: You’re saying you did not have any words with anyone?
“MR. KNOX: I just told them my name and stuff. As far as like conversation, I never had a chance to.
“THE COURT: Okay. Now, are you saying that you did not make a statement to them that you did not want the evaluation?
“MR. KÑOX: No, ma’am.
“THE COURT: Okay. And at this point [in] time—
“[Defense counsel]: Your Honor, our problem is he’s relatively normal at this point, but our problem is the state of mind at the time that the event occurred and that’s what we especially needed the evaluation on. I don’t know where the mix[-]up is. But at the time this occurred, he did not know what he was doing.
“THE COURT: Anything from the State?
“[Prosecutor]: No, ma’am. That’s certainly a matter of opinion to be determined later. But it’s my concern he’s in prison and if the case is continued to allow the defendant to have the psychiatric evaluation, then they turn around later and file a speedy trial motion arguing that his right to a speedy trial has been violated because of the delay at the time that it’s.taken to get to trial. I think that’s an inconsistent position. The State is prepared to strike the jury and try this case Monday.
“THE COURT: Are you waiving the argument on speedy trial?
“[Defense counsel]: It is not this defendant’s fault that these people got him there late and that the people who brought him there said he didn’t need it and they didn’t want to come back and forth.
“THE COURT: No, is that the answer to the question?
“[Defense counsel]: No, I can’t waive it.[]
“THE COURT: Well — well, the order has already been granted to allow the evaluation. Have a seat. I will contact Taylor Hardin myself and we will—
“[Prosecutor']: The only thing I ask them, then, is that rather than have the sheriffs department send him back to the — if they can expediently let him stay up here until—
“THE COURT: That’s what I’m gonna check on.
“[Defense counsel]: I think that would be wonderful.
“(Recess taken.)
“THE COURT: In the case of State of Alabama versus Jimmy Paul Knox — I don’t have that case number.
“THE COURT: There had been a request for psychiatric evaluation that had been requested at some time previously. Mr. Knox has been incarcerated with the Alabama Department of Corrections. That evaluation — is that right?
“[Prosecutor]: Yes, he’s in the State[’s] custody.
“THE COURT: Statefs] custody. That evaluation had been ordered and Mr. Knox was transported from his facility where?
“[Clerk]: Bibb County.
“THE COURT: Incarcerated at Bibb County and transported to that evaluation. The appointment was at 9:00 ... and he arrived at 10:30 as I understand it according to Taylor Hardin, that he was approximately an hour-and-a-half late. [Defense counsel], what was the request based upon?
“[Defense counsel]: Your Honor, the request was based upon the fact that this gentleman was suicidal and it was based upon the fact that he was insane at the time the incident happened. His biological father had just died, his brother had just committed suicide, his wife had just left him, he had taken an overdose just a few hours before then. You see here where he has attempted to commit suicide. He walked into this place with a toy gun where this man had been robbed before and had shot somebody before hoping to be killed. This is not a motivation for a robbery. It is an act of somebody who is not competent at the moment to me.
“That’s the reason we need the psychiatric evaluation to determine whether he knew what he was doing at the time, he understood what he was doing at that time, and there’s ample evidence that he does not and did not.
“[Prosecutor]: I would like to respond to that since we’re getting into substance of the facts of the case. Number one, this is not Mr. Knox’s first time before this Court. He’s got three prior felony convictions. And I reviewed the files, there was no request for psychiatric evaluation the first time he was up here on burglaries and pled to three different felony charges.[]
“Secondly, defendant was afforded an opportunity to have the psychiatric evaluation of where [sic] he arrived late and indicated to the doctor that he didn’t want any. So, to now go forward with it after the defendant himself said he didn’t wish for that evaluation I think would just cause the case to be needlessly delayed.
“Further, Your Honor, you heard about an hour ago his attorney say she’s raising speedy trial issues in the ease and yet it’s her motion to ask the Court to enter a psychiatric evaluation which would cause the delay of the trial.[] We’re prepared to move forward with the case. And as to the sad story about the defendant’s state of mind on that day, and let me just represent to the Court, by the defendant’s own statement he didn’t just choose this place. He had gone and passed the stolen check there the day before he committed the armed robbery and decided he needed to get that check back and went back and committed an armed robbery the next day with the specific purpose of getting the stolen check that he had stolen and passed back. And that’s reflected in his own statement.
“So, I think there was — there was conscience, which reflects conscious decision[-]making at the time of the alleged offense.
“THE COURT: Okay. Also for the record, I have been in communication with the attorney and with Mr. Knox and representative of the State standing here at the time I contacted Taylor Hardin and have talked with Taylor Hardin and representative^] of Taylor Hardin who are making the representations that Mr. Knox talked with the doctor, indicated that he did not feel that a psychiatric evaluation was needed. At this particular time they are faxing to me records which will be made a part of this particular file and will be part of the record as such. Based on those representations—
“[Defense counsel]: Your Honor, one more thing before you make your final decision. It is not unusual for insane people to claim they’re sane and do not need them and do not need psychiatric evaluation. If he did this, then this is an indication that he is not sane and needs help.
“THE COURT: Okay. Anything else?
“[Defense counsel]: That’s it.
“THE COURT: Anything else from the State?
“[Prosecutor]: No, ma’am.
“THE COURT: Then based on those representations and the notes that will be made a part of the record, then the continuance to allow a further psychiatric evaluation by Taylor Hardin would be denied and the case would be continued for trial. It will go forward for trial. And so you understand, Mr. Knox, that right now it’s due to be called next Monday. Do you have any questions?
“MR. KNOX: How are they gonna sit there and say I denied evaluation? The time wasn’t even right. The time they had.
“THE COURT: Mr. Knox, the decision, that ruling has been made. You need to talk with your attorney. Okay. Thank you.”

(R. 3-10.)

On April 12, 2001, the court liaison at Taylor Hardin sent the following letter to the trial judge so .that it could become part of the record:

“Per our conversation, Mr. Knox was scheduled [for] an appointment on 03/15/01 for which the transport officers showed up late.... Dr. Jerry Gragg stated that there was not enough time to complete a thorough evaluation but went to speak with the client to see what his current status was. '
“The client explained that he no longer needed services as he was no longer suicidal and had patched things up with his wife. I promptly contacted your office, the attorney’s office and local officials at the Bibb Correctional Facility. I spoke with the mental health counselor at the correctional facility, who informed me the client had not expressed or exhibited any signs of depression or mental illness. She also stated that the client had not and was not scheduled to receive mental health services while in their facility.
“Based on this information, Mr. Knox was not rescheduled for evaluation services at this facility.”

(C. 48.) (Emphasis added.)

On April 13, 2001, the staff psychologist at Taylor Hardin sent the following letter to the trial judge so that it could become part of the record:

“Jimmy Paul Knox was scheduled for an outpatient evaluation at Taylor Hardin Secure Medical Facility regarding his competency to stand trial and mental state at the time of the alleged offense of Robbery, First Degree (Case# : CC-2000-215). The evaluation was scheduled for March 15, 2001, at 1:00 p.m. However, Mr. Knox arrived an hour and 15 minutes late for the evaluation accompanied by a Franklin County Deputy. Due to their arriving so late, I was unable to proceed with the evaluation. Nonetheless, because the [Djefense [A]t-torney [IJnformation form, furnished by [defense counsel], indicated recent suicidal ideations on the part of Mr. Knox, I felt that it was important to evaluate his potential for suicide gestures before allowing them to leave the facility. I spoke with Mr. Knox in the presence of the Deputy and asked him specifically if he had [any] inclination to engage in self-injurious behaviors or any intentions to do so and he categorically denied such feelings, and, further, stated that those suicidal ideations abated several months previously. Specifically, I asked him about the information listed in the Defense Attorney Form that stated that his previous despondency was relative to feeling that it was his fault that his marriage failed and despondency about his brother’s then-recent demise. He assured me that he and his wife had reconciled and that he was no longer feeling despondent about his brother’s demise. Hence, it did not appear to me that Mr. Knox was in need of emergency hospitalization nor experiencing any propensity towards self-injurious behaviors that could not be managed within the corrections setting. This information was related to the Community Court Liaison who passed the information along to jail personnel. Mr. Knox and the accompanying deputy then left the facility to return to the jail.”

(C. 62.) (Emphasis added.)

Knox’s trial began on April 16, 2001. On April 17, 2001, defense counsel arranged for Knox to be evaluated by Dr. Guy W. Walker, a licensed professional counselor. Dr. Walker “evaluated Knox’s] mental state [during] the days just prior to the incident in question.” (C. 59.) During the trial, on April 18, 2001, the State moved in limine to prohibit Knox from calling Dr. Walker as a witness

“on the issue of his sanity. Said evidence is highly prejudicial in that the attorney for the defendant may attempt to use this evidence to garner sympathy for her client or to inflame the jurors’ passions.... In addition, the defendant will suffer no prejudice in the granting of this motion in limine due to the fact that the defendant had an opportunity to be examined by a psychiatrist by way of a court[-]ordered mental examination, but expressly refused this opportunity.”

(C. 46-47.)

The trial court conducted a hearing regarding the possibility of Dr. Walker’s testifying at trial. During those proceedings, the trial judge indicated that she had previously determined that Knox was legally sane at the time of the incident. (R. 277, 282.) The trial judge also stated that whether Knox “was suicidal at the time that he went into that store is what this jury has to decide.... And so you will not be allowed to give an opinion as to that particular incident that particular date.” (R. 284.) The trial judge did not allow Dr. Walker to testify about Knox’s sanity at the time of the incident or about anything that would pertain to Knox’s intent at the time of the incident. The trial judge then allowed Dr. Walker to testify regarding the few personality tests Dr. Walker had performed on Knox and to answer some hypothetical questions posed by defense counsel.

On cross-examination, the prosecutor questioned Dr. Walker as to how much he had been paid by the defendant and as to how little time he had been able to spend with the defendant, asking, in particular, “Everything you’ve just testified [to] for the last 48 minutes resulted from one meeting two days ago that lasted 120 minutes where you were compensated by the defendant himself; is that correct?” (R. 311.) Defense counsel objected that the prosecutor was misleading the jury. (R. 312.) The prosecutor questioned Dr. Walker about the fact that he had not been contacted regarding the case until October. (R. 314.) Defense counsel objected, stating that the prosecutor “knows that we already had other tests and other people scheduled. I don’t want him to mislead this jury [into thinking] that we did not try to get help for [Knox].” The prosecutor also elicited a negative response from Dr. Walker when he asked, “It’s real easy. You can just answer it yes or no. You’re not testifying about the defendant’s competency or intent to commit the crime today, are you, sir? Yes or no?” (R. 313.)

After jury deliberations had begun, defense counsel argued that

“the defense ha[d] been severely hampered in this in that [she] would have been pleading this gentleman guilty by reason of insanity at the time the offense occurred if he had been allowed to go to Taylor Hardin as Judge Holly had ordered.
“... And the prosecutor has known it’s prosecutorial misconduct for him to stand up and tell this jury and tell the Court and tell everyone that this gentleman did not [seek help] and we did not seek help or reason or way to have him determined mentally incompetent to stand trial and he knew that and that’s what that is.”
In response, the prosecutor stated:
“And furthermore, I think the record will reflect that as far as Taylor Hardin, there’s documentation in the court file that the defendant declined that psychiatric evaluation; that it was made available to him and when he arrived down there, he declined it. And that’s in the record and that’s been visited and revisited prior on the record.”

(R. 331-32.)

“It is well settled that a motion for continuance is addressed to the sound discretion of the trial judge, whose exercise of that discretion will not be disturbed on appeal without proof that it was clearly abused. E.g., Arthur v. State, [711 So.2d 1031] (Ala.Crim.App.1996); Smith v. State, 698 So.2d 189 (Ala.Crim.App.1996); Long v. State, 611 So.2d 443 (Ala.Crim.App.1992). Review of a denial of a motion for continuance requires a review of the circumstances of the case, including the reasons the defendant gave to the trial judge in support of the motion, in order to determine whether there was a clear abuse of discretion. Arthur, supra.

R.D. v. State, 706 So.2d 770, 783 (Ala.Crim.App.1997).

In considering the circumstances of this case, it is clear from the record that the trial judge was concerned by the apparent oversight complained of by Knox; she halted the proceedings to further investigate Knox’s situation in order to aid in her reaching a fair and just decision. However, we hold that the trial judge nonetheless abused her discretion when she denied Knox a continuance necessary for him to secure the mental evaluation that had previously been ordered by the circuit court.

The reasons in support of the motion are compelling.

First, the fact that Knox was late for his appointment at Taylor Hardin and could not be evaluated per court order was the fault of the sheriff in whose custody Knox was placed.

Second, the trial judge presiding over the continuance proceedings had already ordered Knox transferred to Taylor Hardin after having seen him at arraignment. Therefore, she, at that point, had already agreed that a mental evaluation was necessary. It appears from the record that the trial judge later refused to continue the trial based on the spectre of a motion for a speedy trial and on the State’s assertion that Knox waived further evaluation. However, whether Knox planned to file a motion for a speedy trial was irrelevant to whether he was rightfully due a continuance.

Third, nothing in the record supports the State’s assertion and the trial court’s finding that Knox waived further evaluation; the letters from Taylor Hardin do not indicate that Knox waived further evaluation regarding his sanity at the time of the offense. Rather, the letters pertain to Knox’s potential for suicide just prior to his trial in April 2001, not at the time of the incident. If anything, the record indicates that, if Knox did in fact state that he did not think he needed an evaluation, he was speaking in terms of an evaluation of his suicidal tendencies at the moment when he stood in Taylor Hardin, not in terms of an evaluation of his state of mind at the time of the incident. Therefore, although there is evidence in the record indicating that Knox waived any further evaluation of his competency to stand trial, there is no evidence in the record indicating that Knox waived any further evaluation of his sanity at the time of the commission of the offense.

Fourth, we note that Knox moved to be mentally evaluated within six weeks of his arrest. After the trial court initially granted his request, Knox was taken to Taylor Hardin three months later. After he was returned to jail without having been evaluated, Knox moved for a continuance so that he could undergo a mental evaluation within a month. Therefore, this was not a case with a lengthy procedural history because the series of events leading to Knox’s motion for a continuance transpired within approximately six months’ time.

Finally, we note that Knox was prejudiced by the denial of his motion for a continuance. The district attorney used the denial of the continuance as fodder for his cross-examination of Dr. Walker. The trial court allowed the district attorney to emphasize the fact that Knox was evaluated at the last minute by a counselor paid by the defendant. This was clearly an effort to discredit the testimony of Dr. Walker. Furthermore, Dr. Walker’s evaluation of Knox was limited because his license allowed him to perform only certain tests on Knox and because his examination of Knox was necessarily last minute. Also, as discussed above, Dr. Walker’s testimony was rendered even less substantive by the trial court’s constraints.

The record indicates that, at the time of the continuance proceedings, the trial court had already determined that factual data established a reasonable ground to doubt the defendant’s sanity, which is the relevant inquiry. See Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987). Thus the evaluation was ordered. Under the facts of this case, the trial court clearly abused its discretion when it denied Knox a continuance in order for the original order to effectuated.

For the reasons stated above, the judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ„ concur.

      . During the pendency of these proceedings, the original trial judge retired, a new judge was elected, and she took over the retired judge's docket.

      . As can best be determined by the record before us, Knox's older brother committed suicide by jumping from a moving automobile being driven by his mother on September 4, 2000. Knox's mother became "morose and depressed." (Appellant's brief, p. 2.) Knox discovered that his girlfriend was pregnant, and he married her on September 23, 2000. On the day of his marriage, Knox’s best friend committed suicide. Knox's father died shortly thereafter, and his wife left him. Knox tried to commit suicide by taking 120 over-the-counter stimulants immediately prior to the incident for which he was arrested. His family had tried to have him committed to a psychiatric hospital, but his wife would not sign the commitment papers.
      On October 9, 2000, Knox bought a toy dart gun at a Wal-Mart discount store and used the gun to rob a neighborhood store. He maintained that he knew the owner of the store had shot and killed another person who had tried to rob the store. Knox's theory was that his actions were suicidal. The State maintained that that was not the case.

      . We note that " ‘[d]elays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)].’” Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).

        . Knox’s priors occurred well over a year before the incident in question.

      . See supra note 3.

      . It is axiomatic that " '[djelays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker [v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)].’” Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).

      . In Cliff, we stated:
      "A defendant does not have a right to a mental examination whenever he requests one, and, absent such a right, the trial court is the screening agent of such requests. Robinson v. State, 428 So.2d 167 (Ala.Cr.App.1982); Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979). The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant's mental' competency, and this is a matter within the discretion of the trial court. Miles v. State, 408 So.2d 158 (Ala. Cr.App.1981), cert. denied, 408 So.2d 163 (Ala.1982). In determining whether an investigation 'into the defendant's sanity is required, the trial court must determine if any factual data establish a reasonable ground to doubt the defendant's sanity. Beauregard, 372 So.2d at 43. Where the trial court finds that the evidence presents no reasonable grounds to doubt the defendant’s sanity, the standard of appellate review is whether the trial court abused its discretion. Id.”

      518 So.2d at 790.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Dwight Demond MOSS v. STATE of Alabama.
    CR-00-2054.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      Jerry M. Blevins, Montgomery, for appellant.
    Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, Dwight Demond Moss, was convicted of trafficking in cocaine, a violation of § 13A-12-231, Ala.Code 1975, and of unlawful possession of marijuana in the second degree, a violation of § 13A-12-214. He was sentenced to 15 years’ imprisonment for the trafficking conviction and to 12 months’ imprisonment for the possession conviction; the sentences were to run concurrently.

I.

Moss contends that the evidence was insufficient to sustain his conviction for trafficking in cocaine because, he says, the State failed to prove that he was in constructive possession of the cocaine. (Issue TV in Moss’s brief.)

The evidence offered at trial indicated that on September 27, 2000, the Tallapoosa County Narcotics Task Force executed a search warrant at 198 Reeder Road in Dadeville. The search warrant was based on information received by a confidential informant who notified law-enforcement officers that he had seen a large amount of marijuana at the mobile home at that address. During the search, law-enforcement officers discovered marijuana in a trash can in the kitchen; a plastic “baggie” containing cocaine residue and marijuana stems in a bedroom; a “baggie” containing cocaine in the backyard approximately 17 yards from the back door of the residence; a “baggie” containing cocaine in the front yard; and packaging typically used to package narcotics in the side yard of the residence. Moss was present in the residence, along with two small children, when the search warrant was executed. At trial, he stipulated that he was a resident of the premises on the day of the search, and the State presented evidence indicating that clothes, mail, receipts, and bills belonging to Moss were found in the residence. After the narcotics were found, Moss was arrested and read his Miranda rights. Moss admitted to officers on the scene that the marijuana and cocaine found in the mobile home belonged to him and that he had been smoking marijuana earlier in the day; however, he stated that the cocaine found in the yard belonged to Dexter Ty, who, he said, had just left. Moss also told officers that one of the children in the home was his and one was Ty’s.

“‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballanger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“ ‘(W)e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, “ . the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.” Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied)”
“ ‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.’ McGlamory, 441 F.2d at 135 and 136.”

Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978).

First, Moss contends that the State failed to prove that he was in constructive possession of the cocaine found in the yard because, he says, the State failed to prove that he had exclusive possession of the premises. However, the State was not required to prove that he had exclusive possession of the premises in order to prove constructive possession.

“ When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala.Cr.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983) ]; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 721 (Ala.1981). This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986); Temple v. State, [366 So.2d at 743]. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984); Temple v. State.’
“Robinette v. State, 531 So.2d 682, 686 (Ala.Cr.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988).
“In Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), this court provided a non-exclusive list of circumstances that may establish a connection between a defendant and the contraband found on the defendant’s property when the defendant is not in exclusive possession of the premises.
“ ‘While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, 56 A.L.R.3d 948 (1974), it has generally been stated that:
“ ‘ “The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
“ ‘ “The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection are: (1) admissions of previous use; (2) conduct that might be construed as evidencing a consciousness of guilt which was not displayed upon the defendant’s confrontation of the possibility that an illicit drug would be discovered; (3) evidence of previous use; (4) evidence that showed the defendant’s physical proximity to the contraband.”
“ ‘9 Land and Water L.Rev. 236, 248-49 (1974).’
366 So.2d at 743.”

Posey v. State, 736 So.2d 656, 658-59 (Ala.Crim.App.1997).

Here, although Moss was not in exclusive possession of the premises, the State, contrary to Moss’s contention, presented evidence of other circumstances which, combined with Moss’s presence on the premises, was sufficient to establish that he had knowledge of the cocaine found in the yard and, thus, that he was in constructive possession of that cocaine. Moss stipulated that he was residing at the residence on September 27, 2000, and the State presented evidence that many of Moss’s belongings were found in the residence. Moss admitted that the marijuana stems and the cocaine residue found inside the residence belonged to him and admitted to having smoked marijuana earlier that day. See, e.g., Korreckt v. State, 507 So.2d 558, 565 (Ala.Crim.App.1986), quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App.1978) (“ ‘[Ejvidence that debris of the contraband was found on the defendant’s person or with his personal effects has been observed to be a type of circumstance which may provide a connection sufficient to infer knowledge of the presence of the contraband to the accused.’ ”). The baggie containing the cocaine residue and the marijuana stems found in the residence, which Moss admitted belonged to him, was identical to the baggie containing the cocaine that was found in the backyard. (R. 204.) Finally, Moss told the officers that the cocaine found outside belonged to Dexter Ty, thus suggesting that he knew of the presence of that cocaine. This was sufficient evidence from which the jury could have reasonably inferred that Moss had knowledge of the cocaine found in the yard.

Moss also contends that the State failed to prove constructive possession because, he says, the State failed to prove that the cocaine was, in fact, found on the property at 198 Reeder Road. Specifically, he maintains that the State presented no evidence as to where the property line separating the premises from the next-door-neighbor’s premises was located. The testimony at trial indicated that the cocaine was found approximately 17 yards from the back door of the residence; it was next to a “tree line with heavy vegetation” that separated the premises from the next-door-neighbor’s premises (R. 155) on the side of a well-beaten trail under some pine straw. Officer Marcus Osborn, who initially found the cocaine under the pine straw, testified that there was a distinctive difference in the maintenance of the premises on the side of the tree line where the cocaine was found (the side of the premises being searched) and the other side of the tree line toward the next-door neighbor’s house. Although the State did not present evidence of official records indicating exactly where the property line was located, we do not believe such evidence was necessary to sustain Moss’s conviction. There was evidence from which the jury could have inferred that the cocaine was found in Moss’s backyard.

In any event, the question of constructive possession turns on an accused’s knowledge of the presence of the narcotics. Whether narcotics are located outside the official property line of the premises being searched is but one factor to consider when determining whether the totality of the circumstances establishes that an accused had knowledge of the presence of the narcotics. In this case, there was sufficient evidence from which the jury could have inferred that Moss had knowledge of the presence of the cocaine, whether or not the cocaine was located within the property line.

II.

Moss also contends that the trial court erred in denying his motion made pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because, he says, the State struck prospective jurors on the basis of race. (Issue I in Moss’s brief.)

After the jury was selected, the following occurred:

“[Moss’s counsel]: Judge, I was trying to check my numbers real quick here. According to my count we had 29 whites in the venire, 18 blacks. If my count is correct the State struck 9 blacks and 6 whites.
“We think because of the total breakdown, the racial breakdown, that that is prima facie discriminatory. We’d ask the Court to inquire into the reasons or the basis that the State struck these 9 black individuals. We’ve got I think present — I know we’ve got 1 black person on the jury, may have 2. Right now we’ve got two blacks on the jury and— 11 with the alternate, 11 whites?
“THE COURT: All right, sir. And your basis for showing a prima facie case is that the percentage of jurors, is that correct, plus the fact that the State struck 9. I suppose that would leave you with striking 4; is that correct?
“[Moss’s counsel]: That would have been 9 blacks were stricken, 6 whites by the State.
“THE COURT: Right. So that would have left you striking 4 of the black jurors then, is that correct, if there were 13 to begin with?
“[Prosecutor]: That would be incorrect because my records show that he only struck 1 black.
“THE COURT: In that case we’ve got some sort of discrepancy here?
“[Moss’s counsel]: These are the black members of the jury, striking number 3, 15, 151, 221, 77, 73, 244, 74, 161.
“THE CLERK: Also 160 we have.
“THE COURT: That would be 10 of 13. And there’s 1 on. That would be 11.
“[Moss’s counsel]: Judge, I would also say that in the brief time that I’ve had between the jury being stricken and looking at the answers that were given by these 9 black venire people I don’t see anything in their responses that would indicate they couldn’t be fair and impartial. So to me it looks like in the breakdown that they were stricken because of their race, very disproportionate to the total racial breakdown of the venire.
“THE COURT: What’s the State say as to the defendant’s argument that a prima facie case has been shown?
“[Prosecutor]: The State would argue that a prima facie case has not been shown. Simply spouting numbers is not sufficient to meet his burden, Your Hon- or.
“THE COURT: I believe that at one time we did talk in terms of numbers being' — in and of themselves being sufficient to establish a prima facie case and sufficient to defeat on the one hand and sufficient to defeat the motion on the other. But I think that the cases now require something else. So I’m going to rule that no prima facie case has been shown. So I’ll not require the State to justify their strikes.
“[Moss’s counsel]: Judge, if I could then I would like to give the information that was given by these jurors as a basis for showing there’s nothing in the information they gave that would justify striking them other than race. If the court would like me just to rundown'—
“THE COURT: I tell you what I would like for you to do. I would like for you to tell me everything that you have in support of your motion rather than telling me one thing and then, well, if that didn’t work let me try something else and if that didn’t work let me try something else. So you give it all to me now.
“[Moss’s counsel]: I did originally, Judge. I said the information that I’ve had the opportunity to review as far as responses these jurors gave no basis to think that they could not be fair and impartial. I stated that when I stated my original grounds.”

(R. 120-23.) Moss’s counsel then went on to describe each juror the State struck (giving their gender, race, employment, and marital status) and stated his opinion that “no information given by these 9 black veniremembers indicated that they could not be fair and impartial or that they had any bias or prejudice not unlike the other white venire people.” (R. 125.)

It is well settled that the burden of persuasion in establishing a prima facie case of discrimination is initially on the party alleging discriminatory use of peremptory strikes. See Ex parte Branch, 526 So.2d 609, 622 (Ala.1987); and Edwards v. State, 628 So.2d 1021, 1024 (Ala.Crim.App.1993). “The facts and circumstances necessary to establish a prima fa-cie case of purposeful discrimination in the jury selection process will, of course, vary from case to case, depending on the particular facts and circumstances involved.” Kidd v. State, 649 So.2d 1304, 1311 (Ala.Crim.App.1994). While it is true the striking of one person for a racial reason is a violation of the principles of Batson, and grounds for reversal, see Williams v. State, 548 So.2d 501, 507 (Ala.Crim.App.1988), it is equally true that “[m]erely showing that the challenged party struck one or more members of a particular race is not sufficient to establish a prima facie case.” Edwards, 628 So.2d at 1024. See also Ex parte Trawick, 698 So.2d 162 (Ala.1997)(holding that without more, the mere fact that the prosecutor used a high number of strikes to remove women from the venire is insufficient to establish a prima facie case).

“A defendant fails to establish a prima facie case of discrimination under Batson and Ex parte Branch, 526 So.2d 609 (Ala.1987), where the defendant fails to show any evidence of discrimination other than the number of African-American veniremembers who were struck. Young v. State, 730 So.2d 1251, 1253-54 (Ala.Cr.App.1998); Moore v. State, 677 So.2d [828,] 829 [ (Ala.Crim.App.1996) ]. ‘ “It is within the sound discretion of the trial court to determine if the State’s peremptory challenges of black jurors are motivated by intentional racial discrimination.” ’ Taylor v. State, 666 So.2d 36, 43 (Ala.Cr.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996), quoting Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989). ‘A circuit court’s ruling on a Batson objection is entitled to great deference, and we will reverse a circuit court’s Batson findings only if they are clearly erroneous.’ Stokes v. State, 648 So.2d 1179, 1181 (Ala.Cr.App.1994) (citations omitted).”

Powell v. State, 796 So.2d 404, 431 (Ala.Crim.App.1999), aff'd, 796 So.2d 434 (Ala.2001).

Moss offered no evidence, other than the number of black veniremembers struck by the State and his counsel’s opinion that the struck veniremembers did not indicate during voir dire that they could not be fair and impartial, to show that the State exercised its peremptory strikes in a discriminatory manner. Moss did not offer evidence, or even allege, that the struck veniremembers shared only the characteristic of race, that there was a lack of meaningful voir dire directed at black veniremembers, that black and white veniremembers were treated differently, or that the prosecutor had a history of using peremptory strikes in a discriminatory manner. Moss noted only that the State had used 10 of its 13 peremptory strikes to strike blacks and that, in his counsel’s opinion, no articulable reason for the strikes was revealed during voir dire. However, as we stated in Johnson v. State, 823 So.2d 1, 20 (Ala.Crim.App.2001), “[w]e do not find the statistics or defense counsel’s assertions that in his opinion no legitimate reasons for the strikes were revealed during voir dire to be sufficient to establish a prima facie case of racial discrimination.” See also Duncan v. State, 827 So.2d 838, 855 (Ala.Crim.App.1999), aff'd, 827 So.2d 861 (Ala.2001) (Batson motion in which counsel asserted only statistics and his opinion that nothing was revealed during voir dire to provide a legitimate reason for the strikes was held insufficient to satisfy defendant’s burden of proving a prima facie case). We find no error in the trial court’s denial of Moss’s Batson motion.

III.

Moss contends that the trial court erred in denying his motion for disclosure of the identity of the confidential informant. (Issue II in Moss’s brief.) Specifically, Moss argues that the confidential informant’s identity was necessary to his defense that the marijuana and cocaine found in his home had been planted by the informant “in order to get even with” him. (Moss’s brief at p. 6.)

Before trial, Moss filed a motion for the disclosure of the confidential informant’s identity. The trial court held a hearing on the motion. At the hearing, Moss argued that the identity of the confidential informant was necessary for his defense. Specifically, he argued that “if this informant is the person we think it is” then the “informant knew the location of the drugs because the informant placed the drugs there in an attempt to set up Mr. Moss.” (R. 5, 8.) He maintained that “the informant put the drugs there and went to the police and took them out there and showed them where they were to get Mr. Moss charged.” (R. 8.) In opposition to the motion, the State argued that the confidential informant was a “mere tipster” and was not a material witness or an active participant in the crime and that, therefore, Moss was not entitled to know his identity. Moss presented no evidence to support his motion. However, the State called Frederick White, an investigator with the Tallapoosa County Narcotics Task Force who applied for and executed the search warrant. White testified that, contrary to Moss’s assertion, the confidential informant did not tell him the location of the illegal drugs in Moss’s home, but merely told him that he had seen illegal drugs in the home. The trial court then denied Moss’s motion.

“ ‘Since Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it is clear that the general rule of nondisclosure of witnesses is not always applicable to the government informant. In cases involving the “tipster” type of informant, who merely conveys information to the government but neither witnesses nor participates in the offense, courts generally hold that the disclosure of his identity is not material and, therefore, not required.’
“Self v. State, 420 So.2d 792, 795. (Ala.Cr.App.1981), rev’d, 420 So.2d 798 (Ala.1982) (emphasis added).
“ ‘ “Generally speaking, where the identity of a confidential informer is sought on the issue of guilt or innocence, and the alleged informer is shown to have been a participant in the transaction constituting the offense, the prosecution is required to disclose his identity and address on the' request of the accused. The rule does not apply, however, to an informer who is involved in only an indirect way, such as a’‘tipster.’”’
“Lightfoot v. State, 531 So.2d 57, 58 (Ala.Cr.App.1988) quoting 33 Am.Jur. P.O.F.2d 549 Criminal Law: Need for Disclosure of Identity of Informant, at 559, 563 (1983) (emphasis added). See also, Garner v. State, 606 So.2d 177 (Ala.Cr.App.1992); Colbert v. State, 615 So.2d 1213 (Ala.Cr.App.1992), rev’d on an unrelated ground, 615 So.2d 1218 (Ala.1992).”

Mason v. State, 768 So.2d 981, 1001-02 (Ala.Crim.App.1998), aff'd, 768 So.2d 1008 (Ala.2000). Furthermore, the burden is on the defendant when seeking disclosure of the -identity of a confidential informant to demonstrate the need for such disclosure. See, e.g., Robinson v. State, 728 So.2d 650 (Ala.Crim.App.1997), and Lightfoot v. State, 531 So.2d 57 (Ala.Crim.App.1988).

In this case, Moss failed to meet his burden. The only evidence in the record indicates that the confidential informant was a “mere tipster” and was not a material witness or a participant in the crimes charged. Although Moss was given the opportunity to present evidence showing the need for disclosure of the informant’s identity, Moss presented no such evidence at the hearing on his motion. His counsel merely argued to the trial court and that argument — that the informant knew the exact location of the illegal drugs because the informant planted the drugs — was affirmatively refuted by the testimony of White, who said that the informant did not tell him the exact location of the drugs. Because Moss failed to meet his burden, the trial court did not err in denying Moss’s motion for disclosure of the confidential informant’s identity.

IV.

Moss contends that the trial court erred in admitting testimony regarding a prior search warrant executed at 198 Reeder Road on July 14, 2000, and in denying his motions for a mistrial and for a continuance once it ruled that the evidence was admissible. (Issues III and IV in Moss’s brief.) Moss argues that evidence of the prior search warrant was inadmissible because, he says, the State gave untimely notice of its intent to use evidence of the prior search warrant at trial, the State introduced the evidence solely for the purpose of proving his bad character in violation of Rule 404(b), Ala.R.Evid., and the prejudicial effect of the evidence outweighed its probative value. In addition, Moss argues that the trial court erred in not declaring a mistrial and granting him a continuance once it ruled that the evidence was admissible in order to give him time to investigate the circumstances of the prior search warrant.

Although Moss complains about the trial court’s various rulings regarding the evidence of the prior search warrant, the record reflects that it was Moss, not the State, that first introduced the evidence at trial. On the morning of the first day of trial, Moss moved to exclude any evidence relating to the July 14, 2000, search warrant on the ground that the State’s notice was not timely, and that the evidence was irrelevant and prejudicial. The trial court postponed ruling on Moss’s motion to exclude the evidence and instructed both parties not to mention the prior search warrant until its ruling. On the morning of the second day of trial, the trial court ruled that because Moss was claiming that he was not the owner, a lessee, or even a resident of the premises that were searched and because the cocaine forming the basis of the trafficking charge was found outside the house, limited evidence of the prior search warrant would be admissible. Specifically, the court stated that evidence indicating that Moss was present at the residence when the prior search warrant was executed and evidence of any drugs found outside the house in the same area that the cocaine forming the basis for the present trafficking charge was found during that prior search (the court excluded any evidence of drugs found inside the home) would be admissible to show Moss’s residence on, and/or control of, the premises. The trial court also indicated that if the evidence was presented, it would give the jury a limiting instruction. Moss objected to the trial court’s ruling on the same grounds he had raised before and he requested that the trial court grant a mistrial and continue the case so that he could investigate the circumstances of the prior search warrant. The trial court denied Moss’s requests. The following then occurred:

“[Moss’s counsel]: ... Judge, on the prior issue' — and we have cross-examined witnesses raising the issue of who owned the trailer, whether there was any attempt to determine who possessed it or owned it. That’s not to say we’re not going to concede to ownership at some point during this trial. That decision will be made probably after Investigator White testifies. I have cross-examined witnesses concerning their attempt to determine who lived there and other things. Is it my understanding that if we conceded or stipulate that Mr. Moss possessed the trailer on the day in question, September 27, that the Court would not allow the evidence of that July 14 search warrant in?
“THE COURT: If there’s a concession that he was in possession and control of the trailer on the occasion complained of then that eliminates the necessity of this other testimony.
“[Moss’s counsel]: Can I have one second?
“[Moss’s counsel]: Judge, we’ve talked with [the prosecutor]. And we’ve decided that we would stipulate concerning the trailer. I think the exact wordage of the stipulation may be an issue the Court would address.
“I told [the prosecutor] we would stipulate that Mr. Moss was living in the trailer on September 27. I think [the prosecutor] is wanting the language that Mr. Moss was in possession and control of the trailer on September 27. And I just don’t exactly know what control means.
“THE COURT: Let me kind of think about that until our first break and then we can — let me toy around with something to propose to you as a stipulation.”

(R. 223-25.)

The State then called Frederick White to testify. In an attempt to implicate his friend,. Dexter Ty, in the possession of the drugs, Moss’s counsel cross-examined White as follows:

“[Moss’s counsel]: Okay. How many times — let me ask it this way- — how many times were you personally watching the trailer did you' see Dexter Ty there before September 27?
“[White]:' Onetime.
“[Moss’s counsel]: One time. And the time you saw him wa,s he coming there or was he leaving?
“[White]: The time I saw him he was fleeing.
“[Moss’s counsel]: So he was running from there?
“[White]: Yes.
“[Moss’s counsel]: Were y’all chasing him while he was running?
“[White]: No. Actually it was during a search warrant.
“[Moss’s counsel]: The fact that he ran I suppose would make you think that he w;as up to no good, correct?
“[White]: Quite possible.
“[Moss’s counsel]: Did y’all catch him?
“[White]: Nope.
“[Moss’s counsel]: Got away from you?
“[White]: Sure did.”

(R. 259-60.) During a break in cross-examination of White, the following occurred:

“[Prosecutor]: Why don’t we address one other issue?
“In response to defense counsel’s questions particularly when he was asking this officer if he had seen Dexter Ty at the residence. And again [Moss’s counsel] went down this line of questioning. [White] said I’ve seen him there one time. [Moss’s' counsel] then asked what was he doing. [White] said he was fleeing. [Moss’s counsel] went on to ask, well, since he was fleeing wouldn’t — as a matter of fact, the search warrant even came out on the prior date.
“THE COURT: It did.
“[Prosecutor]: And [Moss’s counsel] said he was fleeing, he was running. And then [Moss’s counsel] said wouldn’t that make you think that [Ty] was up to no good. I think that line of questioning allows me to go into the fact that the defendant was also present and he, himself, was fleeing the scene. [Moss’s counsel] also went on to ask if they had arrested or charged [Ty] in connection with fleeing the scene at that time. The defendant was, in fact, arrested and charged from that search warrant.
“THE COURT: I really think that’s an awfully slippery slope. And I notice the dimension of the search -warrant. While it was responsive to the question, it wasn’t necessarily the question that was asked. I suppose it would be fair to ask this witness on redirect if Mr. Moss was present on that occasion where Mr. Ty was seen and what was Mr. Moss doing at the time. But as far as- — -then everybody better watch out for the line of questions on arrest.. Okay.
“Let’s take about five or ten minutes. Then we will drive along.
“(BREAK)
“[Moss’s counsel]: It’s my understanding that the DA will elicit testimony from Investigator White to the effect that on July 14, 2000, when they came to the location where the trailer is located that Dwight Moss ran. And that Dexter Ty also ran. While Investigator White did give a response to one of my questions that indicated Dexter Ty ran, it was a nonresponsive answer to my question. If I remember correctly my question was when you did surveillance on the trailer, what did you see? He said he saw Dexter Ty one time. Then we had some confusion about what he saw. I asked him a specific question or when you saw [Ty] was he coming or going. That’s where he volunteered the information that he was running from the trailer.
“We would argue that the admission of the evidence as to Mr. Moss running is irrelevant to this case. It concerns the prior search warrant on July 14. If by any means it is relevant it is extremely prejudicial to Mr. Moss. It’s sort of been our defense at this point that the drugs there most likely belonged to [Ty]. We’ve just sort of sought to introduce evidence to that effect. Admitting this evidence would be extremely prejudicial to Mr. Moss, we’d ask the Court not to allow it.
“THE COURT: I would tend to agree with you more if you had not pursued the line of questioning further to say that didn’t this investigator think that Mr. Ty running was some indication of guilt on his part and has he been arrested for anything that’s down there in spite of the fact that he’s been in the courtroom this morning and all of that. We’re going to limit it as much as possible. But I’m going to deny your position at this time.”

(R. 286-89.) During redirect examination, the State questioned White as follows:

“[Prosecutor]: Now, if you’ll recall in response to some questions by [Moss’s counsel]. I believe he asked you during these rolling surveillance if you ever saw Dexter Ty at the residence; is that correct?
“[White]: Yes.
“[Prosecutor]: And I think your response is once?
“[White]: Yes.
“[Prosecutor]: Then he went on to ask you what he was doing, was he coming or going? I think you said he was fleeing?
“[White]: Yes.
“[Prosecutor]: You further indicated it was a search warrant being executed at that point, correct?
“[White]: Yes.
“[Prosecutor]: And he went on to ask you was it a fact that Dexter. Ty was fleeing, would that indicate to you he was up to no good and your response was yes[,] if I’m not mistaken. Do you recall that line of questioning?
“[White]: Yes.
“[Prosecutor]: Now, when you say Dexter Ty was fleeing, can you come down and tell us or show us where he was fleeing and in what direction?
“[White]: The back door area down this trail and out that way.
“[Prosecutor]: Took off?
“[White]: Took off.
“[Prosecutor]: You may be seated. Thank you.
“Now, my question is was anyone with Dexter Ty?
“[White]: Yes.
“[Prosecutor]: Who was with him?
“[White]: Mr. Moss.
“[Moss’s counsel]: Objection, same grounds.
“THE COURT: Overruled.
“[Prosecutor]: Who was with him?
“[White]: Mr. Moss.
“[Prosecutor]: What was Mr. Moss doing?
“[White]: Running.
“[Prosecutor]: He was fleeing also, wasn’t he?
“[White]: Yes.
“[Prosecutor]: What path was he fleeing down?
“[White]: That same trail.
“[Prosecutor]: He was fleeing down this exact same trail?
“[White]: Yes.
“[Prosecutor]: And that search warrant was on July 14, 2000; is that correct?
“[White]: Yes, sir.”

(R. 309-10.) After the testimony of two more witnesses, Moss stipulated that he was a resident of the premises searched on September 27, 2000.

Moss cannot complain about the admission of testimony regarding the prior search warrant when he was the first person to introduce evidence of the prior search in his cross-examination of White. When Moss’s counsel cross-examined White, the trial court had indicated that because Moss was going to stipulate that he was residing at the residence at the time of the search warrant that gave rise to the present charges was executed, evidence of the prior search was no longer relevant and, therefore, was no longer admissible. Nevertheless, in an attempt to implicate Dexter Ty, Moss questioned White about the circumstances surrounding the prior search. “ ‘A defendant is not permitted to present evidence to the jury on a specific issue and object when the state attempts to introduce evidence on the same point.’ ” Rutledge v. State, 651 So.2d 1141, 1148 (Ala.Crim.App.1994), quoting Morgan v. State, 589 So.2d 1315, 1320 (Ala.Crim.App.1991).

“The State, on redirect examination, may question a witness with regard to matters brought out by the defendant on cross-examination. Jones v. State, 22 Ala.App. 141, 142, 113 So. 478 (1927).
“ ‘The purpose of redirect examination is “to answer any matters brought out on the cross-examination of the witness by [the] adversary.” ... “ ‘A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.’ ” ... “Whenever defense counsel injects an issue into a case during cross-examination, the State may, within the discretion of the trial judge, question the witness as to that matter.” ’
“Sistrunk v. State, 596 So.2d 644, 647 (Ala.Cr.App.1992). See also Leonard v. State, 551 So.2d 1143, 1145 (Ala.Cr.App.1989); Campbell v. State, 508 So.2d 1186, 1189 (Ala.Cr.App.1986). ‘This is but common fairness and an application of the rule permitting the admission of evidence by reason of the admission of similar evidence of the adverse party.’ White v. State, 344 So.2d 1270, 1273 (Ala.Cr.App.1977).”

Crauswell v. State, 638 So.2d 11, 14 (Ala.Crim.App.1993).

Because Moss first elicited testimony regarding the circumstances surrounding the prior search, the State was properly allowed to elicit further evidence on that same subject. We find no error as to this claim.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . It appears from the record that the Task Force is composed of law-enforcement personnel from the Alabama Bureau of Investigation, the Tallapoosa County Sheriff's Department, and the City of Alexander City Police Department.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Gerald P. SCRUSHY v. STATE of Alabama.
    CR-00-2441.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    John W. Kelley III, Selma; Philip Henry Pitts, Selma; and Robert H. Turner, Marion, for appellant.
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   COBB, Judge.

On January 12, 2001, Gerald P. Scrushy was charged by complaint with harassment, a violation of § 13A-ll-8(a)(l), .Ala. Code 1975, and assault in the third degree, a violation of § 13A-6-22, Ala.Code 1975. Both cases were heard in Dallas County District Court. On July 13, 2001, Scrushy was convicted of both offenses. In the harassment case, Scrushy was fined $500 and was sentenced to 90 days in the city jail. That sentence was suspended, and Scrushy was placed on 36 months’ probation. In the assault case, Scrushy was fined $2,000 and was sentenced to 12 months in the city jail. That sentence was also suspended, and Scrushy was placed on 36 months’ probation. This appeal followed.

As best as we can ascertain from the case action summary sheets in the two cases, the procedural history of both cases is as follows. On February 22, 2001, the assault case was continued to March 12, 2001. On March 12, 2001, both cases were continued to April 9, 2001; On April 9, both cases were continued to April 24, 2001. On May 31, both cases were continued to June 26, 2001.’ On June 26, the harassment case was continued to July 30, 2001. On July 12, 2001, the State filed the following “motion to render judgment”:

“1. The victim, Wilbur Moultrie’s evidence was heard by the Court on 9th day of April, 2001.
“2. After several continuances, the court set the day for hearing the testimony of the defendant on June 28, 2001.
“3. Counsel for the defendant was present, but neither the defendant [nor] his witnesses appeared in court;
“4. The Court allowed Defendant’s counsel ten (10) days to file a brief. To-date, no brief has been filed and time for filing has passed.
“WHEREFORE, the State of Alabama, by and through counsel, moves this Court to find Gerald P. Scrushy guilty of Assault 3rd based on clear and convincing evidence of Defendant’s assault on the person of Wilbur Moultrie.”

(C. 18.) On July 13, 2001, the trial court granted the motion and entered judgments on both charges. On July 27, 2001, Scrushy filed, a notice of appeal to this Court. On that same day, he submitted a proposed “Stipulation of Facts.” (C. 23.) On August 17, 2001, the trial court denied Scrushy’s proposed stipulation of facts by the following order: “After review of defendant’s Stipulation of Facts and having considered same, accordingly the Stipulation is hereby DENIED as the record speaks for itself.” (C. 29.)

On appeal, Scrushy argues:

“The granting of the State’s motion to render judgment against [him], and the entry of judgment against him, in his absence, without notice, and in advance of the trial date, violated [his] rights to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Alabama Constitution of 1901; and violated his rights under the public trial and confrontation clauses of the Sixth Amendment to the United States Constitution and Article I, Section 6 of the Alabama Constitution of 1901.”

(Scrushy’s brief, p. 6.)

An appeal directly from district court to this Court must,be perfected in accordance with Rule 30.2, Ala. R.Crim. P. See, Christ v. State, 771 So.2d 507, 508 (Ala.Crim.App.2000). Rule 30.2 provides for an appeal from the district court or the municipal court directly to this Court only if one of the following conditions is met:

“(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties' entitled to trial by jury, or
“(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question.”

Neither of these requirements has been met in these cases.

In the notice of appeal that Scrushy filed, he indicated that “[a]n adequate record or stipulation of fact is available and all parties entitled to jury trial have waived their right to trial by jury.” (C. 20.) This assertion, however, is not supported by the record. Although Scrushy submitted a proposed stipulation of facts, the State did not agree to this proposed stipulation, and the trial court denied the stipulation.

Additionally, we cannot say that the record before us is in fact adequate to meet the requirements of Rule 30.2(1), Ala. R.Crim. P. There is no transcript in the record of any of the district court proceedings. The State’s July 13, 2001, motion to render judgment stated that the trial of Scrush/s cases had been set for June 28, 2001. However, neither case action summary indicated any proceedings on June 28. The State’s motion also indicated that the trial court had given Scrushy 10 days to file a brief, but nothing in the record supports this assertion. These and other inconsistencies in the record render the record before us inadequate to meet the requirements of Rule 30.2(1), Ala. R.Crim. P.

Because Scrushy failed to meet the requirements of Rule 30.2, Ala. R.Crim. P., jurisdiction lies with the circuit court, not this Court. Therefore, this appeal is not properly before this Court, and it is due to be dismissed. Hill v. State, 710 So.2d 519 (Ala.Crim.App.1997); Brooks v. State, 668 So.2d 897 (Ala.Crim.App.1995).

In accordance with Lucas v. City of Tuscaloosa, 680 So.2d 1027 (Ala.Crim.App.1996), and Stinson v. State, 741 So.2d 1111 (Ala.Crim.App.1999), this appeal is dismissed and the cases are remanded to the Circuit Court of Dallas County for that court to allow Scrushy to proceed with his appeal for a trial de novo as is authorized by Rule 30.1, Ala. R.Crim. P.

In dismissing this appeal, we note the district court improperly sentenced Scrushy to 36 months on probation on each conviction. Harassment is a Class C misdemeanor and assault in the third degree is a Class A misdemeanor. Section 15-22-54(a), Ala.Code 1975, provides that “in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years.” If, after the circuit court conducts a trial de novo, Scrushy is found guilty of one or both of the charged offenses, that court should take care to properly sentence Scrushy within the applicable statutory ranges.

APPEAL DISMISSED; CASES REMANDED.

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

      . The case action summary for the harassment case does not have an entry on February 22,2001.

      . The case action summary for the assault case does not have an entry on June 26, 2001.

      . This motion referenced only the assault case number and asked the trial court to find Scrushy guilty only of assault.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Jorge Luis CUETO, Respondent.
    No. SC00-890.
    Supreme Court of Florida.
    March 21, 2002.
    Rehearing Denied Dec. 30, 2002.

      John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Randolph Max Brombacher, Bar Counsel, Miami, FL, for Complainant.
    John A. Weiss, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding ethical breaches by Jorge Luis Cueto. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons expressed below, we disbar Jorge Luis Cueto from the practice of law in the State of Florida, effective, nunc pro tunc, May 5, 2000, the effective date of his automatic suspension based on his felony conviction.

The Bar filed a complaint against Jorge Luis Cueto pursuant to Rules Regulating the Florida Bar 3-7.2(i)(l) and (2). These rules authorize the Bar to file a complaint to initiate disciplinary proceedings based upon a determination or judgment of guilt when the offense is a felony under applicable law. The Bar sought disbarment based on Cueto’s adjudication of guilt as to the crime of “unlawful compensation.” See § 838.0Í6, Fla. Stat. (2000).

FACTS

The facts as found by the referee or contained in the record are as follows:

Cueto was one of fifteen defendants in a criminal case charged in a multiple-count indictment in Miami-Dade County. The evidence in that case established that approximately one year after being admitted to the Bar, Cueto was approached by a supervising adjuster for the county, who handled injury claims. The adjuster informed Cueto that his claims would be denied and his cases placed into litigation unless Cueto agreed to pay county adjusters, in cash, ten percent of the gross settlement of any case. Cueto did not report this “kickback” system to anyone. Over a period of six years, until his arrest in 1999, Cueto settled approximately thirty-five cases through these county adjusters using this illegal kickback system. Following an investigation by the State Attorney’s Office, Cueto pled guilty to one count of “unlawful compensation,” a third-degree felony. He was sentenced to five years’ probation with no incarceration and ordered to pay $15,000 in restitution. The State, pursuant to the plea agreement, filed a nolle pros on the seven remaining charges. Because this matter was filed under rule 3-7.2, the referee found that the only misconduct before her was the one count to which Cueto pled guilty, unlawful compensation.

The referee recommended' that Cueto be found guilty of violating rules 3^4.3 (prohibiting the commission of any act that is unlawful or contrary to honesty and justice) and 4-8.4(b) (prohibiting the commission of a criminal act "that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness). However, the referee recommended that Cueto be found not guilty of violating rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation).

The referee recommended a three-year suspension “with reinstatement conditioned upon proof of rehabilitation as well as proof of restoration of his civil rights.” The referee also recommended that the Bar be awarded $870 in costs.

The Bar filed a petition for review, stating that it was challenging the referee’s “recommended discipline only.” However, in its initial brief, the Bar raised an additional challenge to the referee’s recommendation that Cueto be found not guilty of violating rule 4-8.4(c).

ANALYSIS

As a preliminary matter, neither party contests the referee’s recommended findings of fact or recommendations as to guilt for the violations of rules 3^4.3 and 4-8.4(b). Therefore, we approve the findings of fact and recommendations of guilt as to’ these violations.

We next consider Cueto’s argument that the Bar has waived its rule 4-8.4(c) challenge because in its petition for review, the Bar stated that it was “only” challenging the referee’s recommended discipline. We examine this issue because it could impact the questions of Cueto’s guilt as to rule 4-8.4(c) and his discipline.

The Bar argues that the petition for review should be viewed as analogous to the broad scope of a notice of appeal and, therefore, it is not limited by the issues set forth in its petition for review and is permitted to argue that the' referee should have recommended a violation of rule 4-8.4(c). We disagree.

We have reviewed the two provisions governing notices of appeal and petitions for review of referees’ reports. Florida Rule of Appellate Procedure 9.110, which governs the filing of notices of appeal, focuses more on information that identifies a case and its history, rather than on the substance of an appellant’s legal arguments. Nowhere in this rule is a party mandated to1 specify the issues that the party seeks to have reviewed. In contrast, Rule Regulating the Florida Bar 3-7.7(c)(1) (“Procedures before Supreme Court of Florida”), which- governs the procedure for this Court’s review in attorney discipline cases, specifically requires that a petition for review identify the basis of the legal arguments. Rule 3-7.7(c)(l) states that “Review by the Supreme Court of Florida shall be in accordance with the following procedures: ... The proceeding shall be commenced by filing with the Supreme Court of Florida a petition for review, specifying those portions of the report of a referee sought to be reviewed.” (Emphasis added.) Further, subdivision (c)(3) of rule 3-7.7 specifically states, in part, that “[t]he party first seeking review shall file a brief in support of the petition for review within 30 days of the filing of the petition.” (Emphasis added.)

The language in rule 3-7.7 governing the scope of petitions for review is more specific and more restrictive than the language in Florida Rule of Appellate Procedure 9.110 detailing the scope of notices of appeal. Therefore, in the instant case, we conclude that the scope of a petition for review in an attorney discipline proceeding should not be viewed in the same manner as the scope of a notice of appeal in an appellate court’s review of an order or opinion issued by a lower tribunal. Because the Bar’s petition for review specifically stated that it was challenging the referee’s decision only as to the recommended discipline, we conclude that the Bar waived its challenge to the referee’s recommendation that Cueto did not violate rule 4-8.4(c).

However, we have the discretion under rule 3-7.7(e)(l) to “consider a late-filed petition or cross-petition” for review and, therefore, we treat the Bar’s challenge as if it had been raised in a late-filed petition. Further, we have the authority to review the record to determine if “competent substantial evidence supports the referee’s findings of fact and conclusions concerning guilt.” Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). Therefore, the rules and case law demonstrate that this Court has the ultimate discretion to review and consider all aspects of a referee’s report. Although we exercise our discretion in the instant case to consider Cueto’s guilt as to rule 4-8.4(e), we may not always do so in the future, so parties should specify in their petitions for review those issues for which review is being sought. Specifying the portions of the referee’s report gives the opposing party notice of the issues that will be addressed on review. A party’s failure to specify a challenge to-a particular portion of the report in the petition for review, followed by its raising that challenge in its brief, whether intentional or not, could result in a tactical ambush of the opposing party because that party-would not be informed that such a challenge would be raised. In the interest of fairness to the parties who are before this Court in this disciplinary review process, we expect all parties in future cases to fully comply with rule 3-7.7(c) by specifying in their petitions for review all portions of the referee’s report of which they seek review or by filing a proper late-filed petition or cross-petition.-

With regard to the instant case, we disapprove the referee’s recommendation that Cueto be found not guilty of violating rule 4-8.4(c) and conclude that Cueto violated the rule. Rule 4-8.4(c) states that a lawyer shall not “engage - in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Although the rules do not define these four words, Black’s Law Dictionary notes that “misrepresentation” includes “[c]oncealment ■ or even non-disclosure.” Black’s Law Dictionary 1016 (7th ed.1999) (quoting Restatement (Second) of Contracts § 159 cmt. a (1981)). For the term “dishonest act,” Black’s refers to “fraudulent act,” which is defined as “[c]onduct involving ... dishonesty, a lack of integrity, or moral turpitude.” Id. at 672. Further, “moral turpitude” is defined as “[c]onduct that is contrary to justice, honesty, or morality,” and “[i]n the area of legal ethics, offenses involving moral turpitude ... traditionally make: a person unfit to practice law.” Id. at 1026.

The referee based her recommendation of. not guilty on a finding that in all the cases in which Cueto unlawfully paid compensation to the adjusters, there was no evidence of fraudulent claims or unfair compensation to his clients. However, we conclude that in finding these particular facts, the referee did not properly consider the incontrovertible evidence that Cueto was convicted of a felony involving corruption. The referee restricted her analysis of whether Cueto’s conduct violated the rule to her finding that his actions, while criminal, were not fraudulent or unfair. Although these observations are important and relevant on the issue of mitigating the discipline, this analysis does not negate the fact that the respondent’s actions of engaging in this unlawful compensation scheme constituted “dishonesty” within the meaning of rule 4-8.4(c).

We conclude that in knowingly and “corruptly” participating in this scheme to circumvent the proper function of the legal system, Cueto failed to adhere to the high principles demanded of attorneys. He acted with dishonesty towards the very system he was sworn to uphold. Because Cueto’s conduct violated the basic tenet that lawyers must act in a manner that is not unlawful or contrary to honesty and justice, we disapprove the referee’s recommendation and find Cueto guilty of violating rule 4-8.4(c).

We next review the referee’s disciplinary recommendation of a three-year suspension. It is well established that in reviewing a referee’s recommendation of discipline, this Court’s “scope of review is somewhat broader than that afforded to findings of facts because, ultimately, it is [the Court’s] responsibility to order an appropriate punishment.” Florida Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989). “Discipline must be fair to the public and to the respondent and ‘must be severe enough to deter others who might be prone or tempted to become involved in like violations.’ Id. (quoting Florida Bar v. Lord, 433 So.2d 983, 986 (Fla.1983)). We disagree with the referee’s recommended discipline and find that disbarment is the appropriate sanction.

This Court usually will not second-guess a referee’s recommended discipline as long as that discipline has a reasonable basis in existing case law and in the Florida Standards for Imposing Lawyer Sanctions. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999). After reviewing the existing case law and the Florida Standards for Imposing Lawyer Sanctions, we conclude that the recommended discipline has no reasonable basis in existing case law and that disbarment is the appropriate sanction. See Florida Bar v. Rendina, 583 So.2d 314 (Fla.1991) (disbarring attorney for attempting to bribe State Attorney, where attorney pled guilty to charge of conspiracy to commit unlawful compensation and the referee found attorney guilty of, among other violations, engaging in conduct involving dishonesty); Fla. Stds. Imposing Law. Sanes. 5.11(a) (disbarment is appropriate when “a lawyer is convicted of a felony under applicable law”). Case law reveals that this Court, after considering mitigating factors, has both disbarred and suspended attorneys for felony convictions. In the cases in which disbarment was imposed, this Court found that the seriousness of the offense warranted disbarment despite the presence of mitigating factors. Most notably, this Court has disbarred attorneys when the offenses involved a repeated pattern of serious misconduct or “attackfed] the very core of our system of justice.” Rendina, 583 So.2d at 316; see also Florida Bar v. Nedick, 603 So.2d 502 (Fla.1992). The misconduct in the present case involves both of those characteristics.

Although the referee found that Cueto did not initiate the conduct which led to his conviction and that he was a fledgling lawyer at the time he was approached by the supervising county adjuster, we conclude that these mitigating factors provide little mitigation in comparison to the seriousness of the offense. The fact that Cueto did not initiate the misconduct does not lessen his involvement in such misconduct. Further, although Cueto may have been a fledgling lawyer when he first engaged in the misconduct, the misconduct continued for six years until his arrest in 1999. Additionally, the referee’s finding of no prior disciplinary history carries little weight because Cueto had been admitted to the practice of law for only one year before engaging in the misconduct. See Florida Bar v. Wilson, 425 So.2d 2 (Fla.1983) (giving little value to the mitigating factor of lack of a prior disciplinary history because attorney had only been a member of the Bar for six months prior to his arrest). Thus, we conclude that the seriousness of Cueto’s felonious misconduct and the violations of rules 3-4.3, 4-8.4(b), and 4-8.4(c) override the referee’s findings in mitigation. Because the recommended discipline has no reasonable basis in existing case law, we disapprove the referee’s recommended discipline and disbar Cueto.

CONCLUSION

Accordingly, we approve the referee’s recommended findings of fact and recommendations of guilt as to the violations of rules 3-4.3 (commission of any act that is unlawful or contrary, to honesty and justice) and 4-8.4(b) (criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness). We disapprove the referee’s recommendation that Cueto be found not guilty of violating rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and find him guilty of violating this rule. Further, we disapprove the referee’s recommended discipline of a three-year suspension.

Jorge Luis Cueto is hereby disbarred from the practice of law in the State of Florida, effective, nunc pro tunc, May 5, 2000, the' effective date of Ms automatic suspension based on his felony conviction. See Florida Bar v. Cueto, 762 So.2d 918 (Fla.2000) (unpublished order) (No. SC00-650, Apr. 4, 2000). In that order, we afforded Cueto thirty days to close out his practice and protect the interests of existing clients. Further, we ordered Cueto not to accept any new business starting April 4, 2000, the date the order was issued. Accordingly, we find that providing Cueto with time to close his practice is not necessary. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Jorge Luis Cueto in the amount of $870.00, for which sum let execution issue.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.

      . After this Court was notified of Cueto's conviction, pursuant to Rule Regulating the Florida Bar 3-7.2(e) and by order of this Court, Cueto was automatically suspended from the practice of law in Florida effective May 5, 2000. See Florida Bar v. Cueto, 762 So.2d 918 (Fla.2000) (unpublished order) (No. SC00-650, Apr. 4, 2000).

      . Florida Rule of Appellate Procedure 9.110 provides:
      (d) Notice of Appeal. The notice of appeal shall be substantially in the form prescribed by rule 9.900(a) [providing a form for a notice of appeal]. The caption shall contain the name of the lower tribunal, the name and designation of at least 1 party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. Except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice together with any order entered on a timely motion postponing rendition of the order or orders appealed.

      (h) Scope of Review. The court may review any ruling or matter occurring before filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.

      . The statute on "Unlawful compensation or reward for official behavior," section 838.016(1), Florida Statutes (2000), provides in pertinent part: "It is unlawful for any person corruptly to give ... to any public servant ... any ... benefit not authorized by law, for the past, present, or future performance, nonperformance, or violation of any act ... which the person believes to have been ... within the official discretion of the public servant....” (Emphasis added.) Section 838.014(6), Florida Statutes (2000), defines "corruptly” within the unlawful compensation statute as an act "done with a wrongful intent.”

      . See, e.g., Florida Bar v. Grief, 701 So.2d 555 (Fla.1997) (attorney disbarred based on felony conviction for conspiracy to defraud the government by filing false immigration documents despite referee’s recommendation of a three-year suspension); Rendina, 583 So.2d at 316.


author: COVINGTON, Judge.

text:
    Rosemary Oelrich BOTTCHER, Petitioner, v. Kathryn Brown WALSH, Respondent.
    No. 2D01-4580.
    District Court of Appeal of Florida, Second District.
    June 26, 2002.
    Rehearing Denied July 30, 2002.
    Kevin R. Bruning of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Petitioner.
    Roger L. Young of Law Office of Roger L. Young, P.A., Sarasota, for Respondent.
   COVINGTON, Judge.

On this petition for writ of certiorari, Rosemary Oelrich Bottcher challenges a decision of the circuit court, acting in its appellate capacity. She contends the circuit court departed from the essential requirements of the law in reversing a county court order that denied the respondent, Kathryn Brown Walsh, attorney’s fees. We grant Ms. Bottcher’s petition.

On April 6, 1999, Ms. Bottcher filed a small claims action in the county court against Ms. Walsh for $2500 in damages arising from the death of a horse. On January 12, 2000, Ms. Walsh timely served a proposal for settlement on Ms. Bottcher pursuant to section 768.79, Florida Statutes (1999), and Florida Rule of Civil Procedure 1.442, which govern offers of judgment. On January 14, 2000, prior to a hearing or any decision in the matter, Ms. Walsh filed the proposal in the county court. Ms. Bottcher did not accept the proposal.

Ms. Bottcher’s action was tried on November 29 and 30, 2000. On December 19, 2000, the county court entered a final judgment dismissing her claim. The final judgment reserved jurisdiction on "the issue of attorney’s fees and costs.

On December 22, 2000, Ms. Walsh filed a motion for attorney’s fees and costs. Ms. Walsh claimed entitlement to fees and costs for Ms. Bottcher’s failure to accept the proposal for settlement and to obtain a judgment against Ms. Walsh for an amount in excess of the proposal.

In response to the fee motion, Ms. Bottcher asserted that Ms. Walsh was not entitled to fees, because she prematurely filed her settlement proposal in violation of rule 1.442. Ms. Bottcher claimed that the premature filing nullified the offer.

At the ensuing hearing, Ms. Walsh’s counsel conceded that he prematurely filed the offer. He explained that he intentionally did so because of ongoing difficulties he was having with opposing counsel. Primarily, he was concerned that, in the event of a judgment for Ms. Walsh, Ms. Bottcher’s counsel would deny ever having been timely served with the settlement proposal. Thus, Ms. Walsh’s counsel claimed that he prematurely filed the proposal to safeguard his client’s position.

On January 31, 2001, the county court denied Ms. Walsh’s motion for fees. It found that Ms. Walsh’s settlement proposal was prematurely filed in violation of both section 768.79 and rule" 1.442(d), which provides that “[a] proposal shall be served on the party ... to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.” The county court, based on the “unforgiving nature” of the ruling in Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999), determined that, because the provisions of rule 1.442 are to be strictly construed, the proposal herein was void as having been prematurely and unnecessarily filed. According to the county court, the fact that the proposal was prematurely filed as a “safety-net” was a questionable strategy. The county court further opined that counsel “could have [otherwise] utilized some alternative as a means of safeguarding his position.”

Thereafter, Ms. Walsh filed a direct appeal in the circuit court. The circuit court, by written decision, reversed the county court’s order denying Ms. Walsh’s motion for' attorney’s fees. It concluded that the premature filing of the settlement proposal was not fatal to Ms. Walsh’s fee motion, because Ms. Bottcher was not prejudiced as a result.

On the instant certiorari petition, Ms. Bottcher contends the circuit court applied the incorrect law in reversing the county court decision. She argues that the provisions of rule 1.442 must be strictly construed and that the circuit court improperly considered the issue of prejudice contrary to Grip Development, Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262 (Fla. 4th DCA 2000). We agree.

The scope of our certiorari review in this instance is limited to whether “the circuit court’s decision constituted a denial of procedural due process; application of incorrect law, or a miscarriage of justice.” Kaklamanos v. Allstate Ins. Co., 796 So.2d 555, 557 (Fla. 1st DCA 2001) (citing Ivey v. Allstate Ins. Co., 774 So.2d 679, 683 (Fla.2000)). Where, within the context of second-appeal certiorari review, the circuit court’s legal error in applying the incorrect law is sufficiently egregious or fundamental, certiorari relief may be granted. Kaklamanos, 796 So.2d at 557-558.

Here, rule 1.442(d) literally provides that after an offer is served it “shall not be filed unless necessary to enforce the provisions of this rule.” At all relevant times herein, it has been undisputed that Ms. Walsh’s proposal for settlement was prematurely filed. Grip holds that the time requirements of rule 1.442 are procedural in nature and thus mandatory. Grip, 788 So.2d at 265 (citing Schmidt v. Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993)); see also Schussel, 736 So.2d at 778 (stating that the provisions of section 768.79 and rule 1.442 are punitive and must be strictly construed).

Based on the foregoing and under the specific facts of this case, we conclude the circuit court applied fundamentally incorrect law in excusing the premature filing of Ms. Walsh’s settlement proposal based upon a lack of prejudice. Grip, 788 So.2d at 265 (stating that prejudice is not a topic for judicial inquiry under these circumstances). The time requirements of rule 1.442 were entitled to strict construction by the circuit court. Furthermore, the purposeful conduct of Ms. Walsh’s attorney in prematurely filing the settlement proposal in violation of the rule was a matter that should not have been overlooked. As the county court indicated in its written order, Ms. Walsh’s attorney had other legitimate alternatives at his disposal to protect his client’s position. For example, the settlement proposal could have been hand delivered or sent by registered mail if there was concern that the opposing party would deny service in the event of an unfavorable outcome. Instead, the proposal was improperly filed.

Accordingly, Ms. Bottcher’s petition for writ of certiorari is granted, the circuit court’s decision is quashed, and this cause is remanded to the circuit court for proceedings consistent with this opinion.

WHATLEY, J., and DANAHY, PAUL W., Senior Judge, Concur.