text:
    Walter CARPENTER v. Anna Belle NEWMAN, as personal representative of the estate of Gladys Marie Zirlott, deceased.
    2010425.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2002.

      Wesley H. Blacksher, Mobile, for appellant.
   MURDOCK, Judge.

Walter Carpenter appeals from a judgment of the Mobile Probate Court fining him $250 for contempt of court, setting aside an earlier judgment that had awarded him $9,362 as a reimbursement for the payment of funeral and other expenses for Gladys Marie Zirlott, deceased, and entering a new judgment in the amount of $7,112 on his reimbursement claim.

Gladys Marie Zirlott died on October 16, 1999. She was survived by (i) her daughter, Shirley Carpenter, who was married to Carpenter (the Carpenters are residents of the State of Texas), (ii) one or more children of her deceased son, Gerald Slay, and (iii) at least one sibling, a brother, John D. Locke. Jordan Slay was a child of Gerald Slay; she was a minor at the time of the proceedings below. It was also alleged that Gerald Slay had another child, Carol Lynn Slay, but there is no indication in the record as to her age or whereabouts at the time of the proceedings below. Guardians ad litem were appointed to represent the interests of Jordan Slay and Carol Lynn Slay in Zirlott’s estate.

Approximately seven months after Zir-lott’s death, letters of administration on Zirlott’s estate were granted to Anna Belle Newman, who was the general administrator of Mobile County. Thereafter, Carpenter filed a motion requesting that Zir-lott’s estate reimburse him for Zirlott’s funeral expenses and for other expenses as follows:

Pine Crest Funeral Home $7,852
Bond for Administratrix $ 100
Retainer for Estate’s Attorney $1,000
Caretaker for Zirlott’s home $ 410
Total $9,362

The $7,852 payment to Pine Crest Funeral Home included various expenses for Zir-lott’s funeral service and burial and included $2,250 for the purchase of a casket. Following a hearing on Carpenter’s motion, the trial court entered a judgment on April 6, 2001, granting Carpenter’s reimbursement claim in the amount of $9,362.

On June 11, 2001, John W. Cowling, the guardian ad litem for Jordan Slay, filed a Rule 60(b), Ala. R. Civ. P., motion alleging that, during the hearing on Carpenter’s reimbursement claim, Carpenter had misrepresented whether he had received assistance in paying the expenses for which he was seeking reimbursement. Specifically, Cowling alleged that Zirlott, at the time of her death, had $4,351 on deposit in a joint bank account with her brother, John D. Locke, and that Locke had recently informed Cowling of the existence of the joint account. Cowling also alleged that Locke had considered the account funds to have belonged to Zirlott, that Locke had closed the account after Zirlott’s death, and that he had given the proceeds of the account to the Carpenters to assist with Zirlott’s funeral expenses. Cowling requested that the trial court set aside its April 6, 2001, judgment based upon the “new evidence” of Carpenter’s alleged “fraud upon the court” and that it set a hearing to determine whether Carpenter should be reimbursed for any of his claimed expenses.

The trial court held a hearing on Cowling’s Rule 60(b) motion on October 11, 2001, and received ore tenus evidence. Newman testified at the October 2001 hearing that Locke told her that he had given the proceeds of the joint bank account to the Carpenters to assist with the funeral expenses. Further, Carpenter admitted that Locke had given either him or his wife the bank account proceeds several months after Zirlott’s funeral.

On October 26, 2001, the trial court entered a judgment that stated, in pertinent part:

“3. At the April 4, 2001 hearing John W. Cowling ... asked Carpenter questions concerning what assets [Zirlott] had at the time of her death. Specifically, Cowling inquired as to whether [Zir-lott] had any bank accounts.
“4. Carpenter responded negatively.
“5. It is now undisputed that [Zir-lott] had a bank account with her brother, John Locke, as a co-party. Carpenter knew of this account at the time of the April 4th hearing and he did not disclose it upon questioning.[] More importantly, Carpenter did not disclose that Mr. Locke had paid over $4,300 from said bank account to Carpenter’s wife, because Mrs. Carpenter was believed to be [Zirlott’s] closest living relative at the time of her death.
“6. Upon review of the transcript of the April 4th hearing the Court was reminded of how uncooperative and contrary Carpenter was during his testimony. The same could be said of his testimony on October 11th.
“7. The nature of the proceeds in [Zirlott’s] bank account has not been established. No testimony or argument has been presented as to whether the funds in said bank account belonged to Mr. Locke following [Zirlott’s] death. The Court has not, and does not in this Order, consider or make a determination on said issue.
“9. Upon close review of the transcript of [the April 4] hearing and comparison of said testimony contained in the transcript of the October 11th hearing, the Court is of the opinion and therefore concludes that Carpenter knowingly offered false and misleading testimony to the Court in regard to [Zir-lott’s] bank account and should be held in contempt of Court for the same.”

The trial court fined Carpenter $250 as a sanction for his alleged contempt.

The trial court also made the following findings regarding its April 6, 2001, judgment, in which it had awarded Carpenter his expense-reimbursement claim:

“12. Cowling also requested that the Court reconsider its [April 6, 2001, judgment] in regard to the funeral expenses alleged to have been incurred by Carpenter, for which he seeks reimbursement.'
“13. It is obvious that the Carpenters were not familiar with [Zirlott’s] financial affairs. Carpenter testified that he did not consult with Mr. Locke ... until following [her] funeral.
“14. It is undisputed that [Zirlott] had a casket insurance policy that would have covered the expense of the casket used to bury [her].
“15. Carpenter has offered no explanation for why the Carpenters did not make at least a cursory inquiry regarding [Zirlott’s] financial affairs before making the funeral arrangements. Carpenter’s testimony suggests callous disregard of the interests of [Zirlott’s] other heirs, because the Carpenters assumed that all of [Zirlott’s] assets belonged to Mrs. Carpenter, since she was the sole surviving child of [Zirlott],
“16. Carpenter has offered no explanation for why the Carpenters did not make a claim on the casket policy during the applicable claim time period or take appropriate action to enable the wife of [Zirlott’s] deceased son [to] take action to recover the proceeds of said policy.
“17. The Court is of the opinion, and therefore concludes, that it is appropriate for the Court to reconsider its [April 6, 2001, judgment] in regard to the al-lowability of the Carpenter’s claim for reimbursement of [Zirlott’s] funeral expenses.
“18. The Court is of the opinion, and therefore concludes, that Carpenter should not be reimbursed for the expenses relating to the casket used to bury [Zirlott],
“19. The evidence presented to the Court indicates that the expense of the casket was $2,250.
“20. The Court is of the opinion, and therefore concludes, that Carpenter is due to be reimbursed for [Zirlott’s] funeral expenses and other expenses, in the total sum of [$7,112].”

Carpenter appealed to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Carpenter argues that there was insufficient evidence for the trial court to hold him in contempt and that the trial court failed to follow the appropriate procedures under Rule 70A, Ala. R. Civ. P., before holding him in contempt. Carpenter also argues that the trial court erred when it granted Cowling’s Rule 60(b) motion.

In regard to Carpenter’s argument that there was insufficient evidence for the trial court to hold him in contempt, “whether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.” Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994). The trial court did not specify whether it determined that Carpenter was in “direct contempt” or “constructive contempt”; however, based upon the language of the trial court’s judgment and the procedural history of this case, it appears that the trial court determined that Carpenter was in “direct contempt.”

“ ‘Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.”

Rule 70A(a)(2)(A), Ala. R. Civ. P. Direct contempt includes the giving of false testimony. Ex parte Tarpley, 293 Ala. 137, 141, 300 So.2d 409, 413 (1974).

We have carefully reviewed the record, and we cannot conclude that the trial court erred when it determined that Carpenter “knowingly offered false and misleading testimony to the Court in regard to [Zirlott’s] bank account,” particularly in light of his evasive testimony regarding Locke’s payment to his wife. See note 2, supra. Accordingly, we must determine whether the trial court failed to follow the appropriate procedures for holding Carpenter in direct contempt.

Rule 70A(b), Ala. R. Civ. P., states:

“(1) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting the contempt. The order shall be signed by the judge and entered of record.
“(2) Mitigation. The court shall apprise the person of the specific conduct on which the finding is based and give that person a reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances. No decision concerning the punishment to be imposed shall be made during the course of the proceeding out of which the contempt arises, unless prompt punishment is imperative to achieve immediate vindication of the court’s dignity and authority.
“(3) Sentence. Unless it is pronounced immediately under subsections (1) and (2) above, sentence shall be pronounced in open court, in the presence of the contemnor, within seven (7) days after the completion of the proceeding out of which the contempt arose.”

Our review of the record indicates that Carpenter had no notice that the trial court was considering holding him in contempt until the entry of the October 26, 2001, judgment, which was approximately two weeks after the hearing on Cowling’s Rule 60(b) motion. Also, after the trial court made its contempt finding, Carpenter was provided with no opportunity “to present evidence or argument regarding excusing or mitigating circumstances.” Further, the trial court did not pronounce Carpenter’s sentence immediately or “in open court, in the presence of the contem-nor, within seven (7) days after the completion of the proceeding out of which the contempt arose.” The trial court’s judgment holding Carpenter in contempt and fining him $250 is due to be reversed. See Ex parte Garmon, 637 So.2d 883, 885 (Ala.1991).

Finally, Carpenter argues that the trial court erred in granting Cowling’s Rule 60(b) motion. The only grounds for relief under Rule 60(b) that are arguably pertinent to this case are “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b),” see Rule 60(b)(2), and fraud upon the court, see Rule 60(b). Carpenter contends, however, that there was no “newly discovered evidence” or any fraud upon the court that would justify relief from the trial court’s April 6, 2001, judgment.

“The granting of a Rule 60(b) motion is an extreme remedy to be used only in extraordinary circumstances. The trial court has broad discretion in determining whether to grant or to deny a Rule 60(b) motion, and we will look to the grounds presented and the matters presented in support of the motion to determine if there was an abuse of that discretion.”

State ex rel. Croson v. Croson, 724 So.2d 36, 38 (Ala.Civ.App.1998) (citations omitted).

Despite the deferential standard by which we review trial court rulings on Rule 60(b) motions, we note that the trial court granted Cowling’s Rule 60(b) motion on the ground that Cowling had not familiarized himself with Zirlott’s financial affairs before he paid the expenses of Zirlott’s funeral, and because Carpenter failed to file a claim on the “casket policy during the applicable claim time period or take appropriate action to enable the wife of [Zirlott’s] deceased son [to] take action to recover the proceeds of said policy.” It was at the April 2001 hearing on Carpenter’s motion for reimbursement of funeral and other expenses, however, that evidence was offered regarding the existence of the casket policy and Carpenter’s failure to consult with family members regarding Zirlott’s financial affairs before he made Zirlott’s funeral arrangements. Carpenter testified at that hearing that Zirlott had died in her home, but that her body had not been discovered for several days. He stated that he and his wife arrived from Texas only a few hours before Zirlott’s funeral service was scheduled to begin, that no one had made arrangements to pay for Zirlott’s casket or other funeral expenses, and that no one offered to assist with the payment of the funeral expenses at the time he and Mrs. Carpenter made the funeral arrangements. Carpenter testified that he did not know that Zirlott had a casket policy until Locke informed him of the policy after the funeral. No evidence was offered to contradict Carpenter’s testimony in this regard.

Following the receipt of testimony at the April 2001 hearing, the trial court stated, “I’m really concerned why there was no consultation with family or anyone about this casket policy because you could have saved over two thousand dollars.” However, the trial court then stated that it believed that the Carpenters had acted in good faith when they arranged Zirlott’s funeral and that it would award Carpenter’s requested reimbursement. Cowling then objected and stated, “I think given the size of the estate and given it was [Carpenter’s] own inaction that cost at least a couple of thousand dollars to the estate, I don’t think it’s fair for the two children to bear the burden of that expense to the estate.” The trial court replied, “Okay, I appreciate that. My ruling is going to stand and I appreciate you noting that for the record.” The trial court then entered a judgment awarding Carpenter’s reimbursement claim in the amount of $9,362.

The only material evidence introduced at the October 2001 hearing on Cowling’s Rule 60(b) motion that was not introduced at the court’s initial April 6, 2001, hearing pertained to Locke’s payment of funds from the joint bank account to Carpenter. Indeed, the only evidence in the record pertaining to the casket insurance policy was presented at the April 2001 hearing and was considered by the court when it entered the April 6, 2001, judgment. No new evidence was offered at the October 2001 hearing regarding the casket policy. Thus, there was no “newly discovered evidence” as to this issue. Further, there was no evidence of fraud in connection with Carpenter’s failure to file a claim on the casket policy or to provide the policy to Gerald Slay’s wife. Accordingly, we conclude that the trial court erred in granting Cowling’s Rule 60(b) motion based on Carpenter’s failure to learn of, or to file a timely claim for benefits under, Zirlott’s casket policy.

Those portions of the trial court’s judgment holding Carpenter in contempt and fining him $250, and reducing the April 6, 2001, judgment in favor of Carpenter from $9,362 to $7,112, are reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur.

PITTMAN, J., recuses himself.

      . It was later discovered that, before her death, Zirlott had executed a will; that will eventually was admitted to probate in October 2001. Although the will is not included in the record on appeal, testimony given by Carpenter indicates that the sole beneficiary named in the will was Zirlott's deceased son, Gerald Slay.

      . Carpenter denied, however, that the payment was to reimburse him for funeral expenses, insisting instead that the payment was a gift in recognition that his wife was Zirlott's closest surviving relative.

      . Actually, at the April 2001 hearing on his reimbursement claim, Carpenter did disclose the existence of the joint bank account owned by Zirlott and Locke. However, when asked at that hearing whether Locke had accessed the account after Zirlott’s death, Carpenter gave an evasive answer and did not disclose that Locke had accessed the account and had paid the account proceeds to Carpenter’s wife.

      . " 'Constructive contempt’ means any crimi-na! or civil contempt other than a direct contempt.” Rule 70A(a)(2)(B), Ala. R. Civ. P. A proceeding for constructive contempt "shall be initiated by the filing of a petition seeking a finding of contempt.” Rule 70A(c)(l), Ala. R. Civ. P. (emphasis added). Cowling did not request that Carpenter be held in contempt as part of his Rule 60(b) motion, and there is no evidence in the record that any party sought a finding that Carpenter was in contempt.

      . Some of the language in the October 26, 2001, judgment might be construed as an attempt by the trial court to amend the April 6, 2001, judgment pursuant to Rule 59, Ala. R. Civ. P. However, there was no timely filed Rule 59 motion in this case.


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    James KENNEDY v. WELLS FARGO HOME MORTGAGE.
    2011060.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.
    Dawn L. Brown, Legal Services of Metro Birmingham, Inc., Birmingham, for appellant.

      Chalice E. Tucker of Shapiro & Tucker, L.L.P., Birmingham, for appellee.
   THOMPSON, Judge.

On December 17, 2001, Wells Fargo Home Mortgage, Inc. (“Wells Fargo”), filed a complaint seeking to eject James Kennedy and Tammie Kennedy from certain real property it contended that it owned. James Kennedy filed an answer and denied the material allegations in Wells Fargo’s complaint. The record indicates that Tammie Kennedy was not served and that she made no appearance in this action; therefore, we refer to James Kennedy (“Kennedy”) as the sole defendant.

On February 6, 2002, Wells Fargo moved for a summary judgment; in support of its summary-judgment motion it submitted the affidavit of Chalice E. Tucker, the lawyer representing Wells Fargo. In that affidavit, Tucker stated that on February 12, 1998, Wells Fargo purchased Kennedy’s property at a foreclosure sale and, on that same date, made a demand for possession of the property. Tucker also asserted that Wells Fargo had not transferred its interest in the property and that it had not entered into an agreement with Kennedy regarding his continued possession of the property. The record indicates that, after the foreclosure sale, Kennedy filed a petition in bankruptcy and confirmed the debt to Wells Fargo; on July 13, 1998, the bankruptcy court entered an order allowing Kennedy to maintain possession of the property, subject to the condition that he continue to make payments on the debt he owed to Wells Fargo. In support of its motion for a summary judgment, Wells Fargo submitted the following documentary evidence, largely derived from public records: the Kennedys’ 1992 FHA mortgage on the property; the February 12, 1998, mortgage-foreclosure deed obtained by Nor-west Mortgage, Inc., which is the predecessor corporation to Wells Fargo; and Norwest’s February 12, 1998, letter to Kennedy demanding possession of the property.

Kennedy opposed Wells Fargo’s motion for a summary judgment by arguing that the motion was procedurally deficient because, he argued, Tucker’s affidavit was not based upon personal knowledge, as required by Rule 56(e), Ala. R. Civ. P. Kennedy also argued that the summary-judgment motion did not contain a narrative summary of the undisputed facts as required by Rule 56(c)(1), Ala. R. Civ. P.

On March 18, 2002, Wells Fargo amended its motion for a summary judgment. In support of that motion, Wells Fargo again submitted an affidavit by Tucker, which stated that the matters set forth in the affidavit were based on Tucker’s personal knowledge. Otherwise, the March 18, 2002, amended motion for a summary judgment and the documentation submitted in support of that amended motion were identical to the original February 6, 2002, motion for a summary judgment and supporting documentation.

Kennedy filed an opposition to the amended motion for a summary judgment; he argued primarily that the amended motion was also procedurally defective because, he asserted, it did not comply with Rule 56, Ala. R. Civ. P. Kennedy also asserted that factual issues existed regarding Wells Fargo’s ownership of the property and whether Kennedy had a right to possess the property. In support of his opposition to the amended summary-judgment motion, Kennedy submitted his own affidavit; an order from the bankruptcy court; a receipt, dated June 11, 2001, evidencing his payment of $2,761.94 to Wells Fargo; and a document evidencing Wells Fargo’s return to him of a payment of $290 that he had tendered in November 2001.

On April 15, 2002, Wells Fargo filed a second amended motion for a summary judgment. In support of that motion, Wells Fargo again submitted an affidavit by Tucker; in addition to reiterating the substance of the first two affidavits, Tucker’s affidavit submitted in support of the second amended summary-judgment motion also set forth certain facts related to Kennedy’s bankruptcy proceeding, including the amount Tucker maintained the bankruptcy trustee had determined Kennedy still owed Wells Fargo; an allegation that Kennedy had not satisfied the debt owed to Wells Fargo; and an allegation that, upon Kennedy’s failure to repay that indebtedness, Wells Fargo had elected to proceed with the eviction action. In addition to the documents it had submitted in support of its earlier summary-judgment motions, Wells Fargo submitted a copy of the bankruptcy court’s July 13, 1998, order; the November 8, 2001, order of the bankruptcy court dismissing Kennedy’s bankruptcy action; a “proof of claim” from the bankruptcy court indicating Kennedy owed Wells Fargo $5,965.07; and an “interim "statement” of the bankruptcy court indicating that Kennedy had paid $1,950.43 toward the debt he owed Wells Fargo.

On April 24, 2002, Kennedy filed an opposition to Wells Fargo’s April 15, 2002, second amended motion for a summary judgment. In his opposition to that motion, Kennedy again argued that Wells Fargo’s motion did not comply -with Rule 56, Ala. R. Civ. P., and that certain factual issues existed that were sufficient to defeat a summary judgment. Kennedy did not submit any further evidence in support of his April 24, 2002, opposition to the motion for a summary judgment.

On April 30, 2002, the trial court entered a summary judgment in favor of Wells Fargo. In that judgment, the trial court set forth the following allegedly undisputed facts:

“(1) [Wells Fargo] acquired the property as the result of a foreclosure sale on February 12,1998.
“(2) [Kennedy] has continued to occupy the property although a demand was made for possession on February 12, 1998.
“(3) A Chapter 13 Bankruptcy petition was filed by [Kennedy] on March 30, 1998, and the case was confirmed on June 29,1998.
“(4) On July 13, 1998, the bankruptcy court entered an order affirming the confirmation [of the debt to Wells Fargo] but allowing [Wells Fargo] to proceed to evict [Kennedy] from the premises if [Kennedy] failed to complete the bankruptcy case for any reason.
“(5) The bankruptcy case was dismissed on November 8, 2001.
“(6) This action was filed on December 17, 2001.
“It, therefore, appears there is no genuine issue as to any material fact and the plaintiff, Wells Fargo Home Mortgage, Inc., is entitled to a judgment as a matter of law.”

On appeal, Kennedy first argues that the trial court erred in entering a summary judgment in favor of Wells Fargo because, he argues, Wells Fargo’s summary-judgment motion did not comply with Rule 56, Ala. R. Civ. P. Kennedy first argues that the summary-judgment motion did not contain a “narrative summary of what the movant contends to be the undisputed material facts.” See Rule 56(c)(1), Ala. R. Civ. P. However, each summary-judgment motion was supported by an affidavit executed by Tucker, on behalf of Wells Fargo, that set forth a summary of the facts. For the purposes of this opinion, however, we address Kennedy’s argument as it pertains to the last of Tucker’s affidavits, the one submitted in support of Wells Fargo’s second amended motion for a summary judgment; of the three of Tucker’s affidavits submitted by Wells Fargo, that affidavit sets forth the most comprehensive recitation of Wells Fargo’s version of the facts of this case. We note that, although Kennedy argues otherwise, the affidavit references and is supported by properly certified copies of mortgages, deeds, and other supporting documents.

In International Fidelity Insurance Co. v. Gilliam, 659 So.2d 24 (Ala.1995), our supreme court held that a summary-judgment movant had complied with the requirements of Rule 56(c)(1), Ala. R. Civ. P., when it submitted “exhibits sufficient to meet the narrative summary requirement” of that rule. 659 So.2d at 27. In White v. Howie, 677 So.2d 752, 754 (Ala.Civ.App.1995), this court held that an affidavit submitted in support of a motion for a summary judgment and containing a narrative summary of the facts was sufficient to meet the Rule 56 requirement for a narrative summary of the undisputed facts. See also Barlow v. Piggly Wiggly Dixieland, Inc., 680 So.2d 297 (Ala.Civ.App.1996) (a pretrial statement listing claims and referencing supporting documents was sufficient to meet the narrative-summary requirement of Rule 56(e)).

In this case, Tucker’s affidavit sets forth Wells Fargo’s version of the undisputed facts of this action. That affidavit referenced properly submitted supporting documents. Therefore, Kennedy has not persuaded this court that Wells Fargo failed to comply with the narrative-summary requirement of Rule 56(c)(1), Ala. R. Civ. P.

Kennedy also contends that Wells Fargo’s motion for a summary judgment was not properly supported because the affidavit Tucker submitted in support of that motion was not based upon Tucker’s personal knowledge, as is required by Rule 56(e), Ala. R. Civ. P., and that a representative of Wells Fargo, not Tucker, was the appropriate person to submit an affidavit on behalf of Wells Fargo pertaining to Wells Fargo’s dealings with Kennedy. Rule 56(e) provides, in pertinent part:

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.... ”

Rule 56(e), Ala. R. Civ. P.

Kennedy cites Home Bank of Guntersville v. Perpetual Federal Savings & Loan Association, 547 So.2d 840 (Ala.1989), in support of his argument. In that case, the defendant’s lawyer filed an affidavit in opposition to the plaintiffs motion for a summary judgment. Our supreme court held that under the Alabama Code of Professional Responsibility, the defendant’s lawyer should not have testified on behalf of his client. The supreme court also held that the affidavit in that case set forth information the lawyer could have obtained only from his client and that the affidavit made no reference to and was not supported by an independent documentation of the facts set forth therein. Home Bank of Guntersville, 547 So.2d at 841-42. Therefore, the supreme court concluded that the affidavit in that case contained inadmissible hearsay evidence, and it affirmed the trial court’s refusal to consider that affidavit. Id. at 842.

In addition to the requirement that it be based upon the affiant’s personal knowledge, an affidavit submitted in support of, or in opposition to, a motion for a summary judgment must set forth facts that would be admissible as evidence at trial. McCullough v. McAnalley, 590 So.2d 229 (Ala.1991); Government Street Lumber Co. v. AmSouth Bank, N.A., 553 So.2d 68 (Ala.1989); Yarborough v. Springhill Mem’l Hosp., 545 So.2d 32 (Ala.1989). Also, the affidavit must “show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 56(e), Ala. R. Civ. P.; Waites v. University of Alabama Health Servs. Found., 638 So.2d 838, 842 (Ala.1994).

In Yarborough v. Springhill Memorial Hospital, the defendant submitted the affidavit of an expert witness in support of its motion for a summary judgment. That affidavit set forth the expert witness’s opinion regarding the ultimate issue in the case; therefore, it was not admissible. 545 So.2d at 34. For that reason, the court concluded that the expert witness’s affidavit was not sufficient to support the motion for a summary judgment. The court stated that “Rule 56(e), [Ala.] R. Civ. P., requires that facts relied upon or stated in an affidavit supporting a motion for summary judgment be admissible in evidence.” Yarborough v. Springhill Mem’l Hosp., 545 So.2d at 34.

In Welch v. Houston County Hospital Board, 502 So.2d 340 (Ala.1987), the defendant hospital attempted to support its motion for a summary judgment in a medical-malpractice case with, among other things, its answers to certain interrogatories. In those interrogatories, the hospital made reference to certain facts pertaining to the medical treatment of the plaintiffs decedent; the defendant hospital did not support those interrogatory answers with the records upon which it based those answers. The court concluded that the answers to the interrogatories were insufficient to support the motion for a summary judgment. The court stated:

“It is important to note that it is not the admissibility of the hospital charts or records themselves that is at issue in this case. Provided the proper predicate is laid, the records themselves would be admissible. Rather, at issue in this case is the admissibility vel non of the [hospital’s] answers to interrogatories, which were given by the [hospital’s] administrator based, in pertinent part, on information taken from [the decedent’s] hospital records.”

Welch v. Houston County Hosp. Bd., 502 So.2d at 344 (citations omitted; second emphasis added). Therefore, given the foregoing authority, if Tucker could not testify to certain matters at a trial on the merits, that part of her affidavit referencing those matters is inadmissible.

In this case, Tucker, the lawyer representing Wells Fargo, submitted her own affidavit in support of Wells Fargo’s motion for a summary judgment. The fact that a lawyer is testifying on behalf of his or her client, however, does not in itself render the testimony inadmissible. “The Rules of Professional Conduct are ‘self-imposed internal regulations’ and do not play a role in determining the admissibility of evidence.” Gaylard v. Homemakers of Montgomery, Inc., 675 So.2d 363, 367 (Ala.1996).

In support of its argument that Tucker’s affidavit was based on her personal knowledge, Wells Fargo points out in its brief submitted to this court that Tucker’s affidavit does reference, in support of many of her assertions, certified copies of public records or other documents submitted to the trial court that support those statements. Indeed, because Wells Fargo submitted that documentation in support of Tucker’s affidavit, the facts of this case are to some degree factually distinguishable from those of Home Bank of Guntersville, supra. However, some of the assertions in Tucker’s affidavit cannot be said to be based on Tucker’s personal knowledge or based on her review of public records or documents submitted in support of those assertions. The assertions that are not based upon Tucker’s personal knowledge pertain to the actions of both Kennedy and Wells Fargo with regard to this matter, and include such statements as “[Kennedy] had not satisfied the amount owed to [Wells Fargo]”; “[Wells Fargo] elected to proceed” with this action; and “according to the trustee’s office, [Kennedy] only tendered enough funds for the trustee” to partially pay the indebtedness Kennedy owed to Wells Fargo. “Clearly, the matters to which the affidavit relates could have been attested to by representatives of’ Wells Fargo. Home Bank of Huntersville, 547 So.2d at 841. Tucker’s affidavit also contains a statement regarding her belief that Kennedy has no valid claim to a possessory interest in the property at issue; that statement is not a valid statement of an undisputed material fact because it pertains to the ultimate issue in this action. Therefore, that assertion is inadmissible.

In its brief submitted to this court, Wells Fargo also maintains that Tucker had personal knowledge of the facts in her affidavit and that she was competent to testify to those facts because the law firm with which Tucker is employed has handled this matter on its behalf and was familiar with the case. Initially, we note that Tucker’s affidavit does not so assert; and, therefore, the affidavit does not demonstrate on its face that Tucker had personal knowledge of the facts therein and that she was competent to testify to those matters. More importantly, the knowledge and familiarity of the law firm with which Tucker was employed with the facts of the case are not necessarily attributable to Tucker.

Rule 56(e) also requires that the affidavit itself demonstrate that it is based on the affiant’s personal knowledge and that the affiant “is competent to testify to the matters stated therein.” In Isbell v. Alabama Power Co., 477 So.2d 281 (Ala.1985), the trial court entered a summary judgment in favor of the Alabama Power Company (“APCo”) on the customers’ claim that APCo had wrongfully disconnected utility service to their home because their prior debt to APCo had been discharged in bankruptcy. Our supreme court rejected the customers’ argument that an affidavit submitted by APCo in support of its motion for a summary judgment was insufficient under Rule 56(e). In that case, the affiant was APCo’s credit manager, who stated that it was his job to receive bankruptcy petitions and file proofs of claim and that he had not received a copy of the customers’ bankruptcy petition. The affi-ant stated that that conclusion was based on his personal knowledge and a thorough search of APCo’s records. The court concluded that the affiant “[was] competent to testify to these matters, and [was], indeed, the appropriate APCo employee who, as its credit manager, would offer such testimony at trial.” Isbell v. Alabama Power Co., 477 So.2d at 285 (emphasis added).

In this case, Tucker s affidavit states, in pertinent part, only that “[m]y name is Chalice E. Tucker and I am an attorney employed with the firm of Shapiro & Tucker, L.L.P., and [I] have personal knowledge of the faet[s] set out herein.” However, the affidavit does not set forth any basis for Tucker’s being a person competent to testify to the matters pertaining to Wells Fargo’s dealings with Kennedy or to Kennedy’s actions with regard to this case. Thus, the affidavit does not affirmatively demonstrate that Tucker “is competent to testify to the matters stated.” Rule 56(e); Gable v. City of Huntsville, 564 So.2d 940, 940 (Ala.1990) (holding that an affidavit that did not show that the affiant had personal knowledge of the facts or that the affiant was competent to testify to the matters therein was not sufficient to meet the requirements of Rule 56(e), Ala. R. Civ. P.). Wells Fargo’s assertions in its appellate brief that Tucker’s law firm handled the case and was familiar with the facts do not operate to rectify the deficiencies in the affidavit executed by Tucker.

We conclude that Tucker’s affidavit does not affirmatively show that the facts set forth therein are based upon Tucker’s personal knowledge or that Tucker is competent to testify to the matters set forth in that affidavit. See Rule 56(e), Ala. R. Civ. P. Because we conclude that Tucker’s affidavit was insufficient to support Wells Fargo’s summary-judgment motion, we pretermit a discussion of Kennedy’s argument that, even if properly supported, Wells Fargo’s summary-judgment motion should not have been granted.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ„ concur.

      . It appears that Norwest Mortgage, Inc., the predecessor corporation to Wells Fargo, actually purchased the property at the foreclosure sale.

      . Although the record indicates that Wells Fargo considered that amount to ‘‘represent! ] payments presently due and owing on the referenced account through June 2001,” it appears undisputed that that amount did not represent the payment of the full outstanding balance of Kennedy’s debt to Wells Fargo.

      . The Alabama Rules of Professional Conduct replaced the Alabama Code of Professional Responsibility, effective January 1, 1991.


author: MURDOCK, Judge.

text:
    Linda J. BELL v. Helen Q. GREER.
    2010223.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.

      Linda J. Bell, pro se.
    T. Randall Lyons of Webster, Henry & Lyons, P.C., Montgomery, for appellee.
   MURDOCK, Judge.

In September 1999, Linda J. Bell sued Helen Q. Greer and Mirtha Faye Baker, in the Montgomery Circuit Court, asserting claims of negligence and wantonness for injuries she allegedly sustained as a result of an automobile accident in which Greer and Baker were involved. Baker was subsequently dismissed from the action and Bell dropped the wantonness claim. On the remaining claim of negligence, the jury returned a verdict in favor of Greer. Bell filed a timely motion to alter, amend, or vacate the judgment in which she alternatively requested a new trial and sought to renew her motion for a judgment as a matter of law. After the trial court denied her postjudgment motion, Bell appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to § 12-2-7, Ala.Code 1975. We affirm.

On September 26, 2000, Greer, after leaving work around 5:00 p.m., stopped at a red light. Just in front of Greer’s vehicle was a vehicle being driven by Baker, one of Greer’s coworkers. A third vehicle, driven by Bell, was directly in front of Baker. When the light turned green, all three vehicles proceeded through the intersection. As she was driving through the intersection, Greer looked down into her purse and, as she was doing so, her vehicle bumped Baker’s vehicle from behind. Bell alleges that Baker’s vehicle then bumped into her vehicle. At her request, Bell was transported by ambulance from the scene of the accident to the hospital.

Bell first argues that the jury’s verdict was contrary to the weight of the evidence. Initially, we note that arguments that the jury’s verdict is contrary to the great weight of the evidence are the most “carefully scrutinized or rigidly limited” grounds for reversal of a judgment on appeal. Christiansen v. Hall, 567 So.2d 1338, 1341 (Ala.1990). Specifically, “[a] jury’s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust.” Dempsey v. Phelps, 700 So.2d 1340, 1342 (Ala.1997). Moreover, this presumption of correctness is strengthened when a jury’s verdict is coupled with the denial of a motion for a new trial. National Sec. Ins. Co. v. Donaldson, 664 So.2d 871 (Ala.1995). In addition, as our Supreme Court has explained, when reviewing a jury’s verdict, this court must resolve any disputed facts in the prevailing party’s favor and “must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict.” State Farm Auto. Ins. Co. v. Morris, 612 So.2d 440, 443 (Ala.1993). Therefore, we “ ‘must review the record in a light most favorable to the appellee.’ ” Continental Cas. Ins. Co. v. McDonald, 567 So.2d 1208, 1211 (Ala.1990) (qutoing Pate v. Sunset Funeral Home, 465 So.2d 347, 350 (Ala.1984)).

We conclude that the record in this case amply supports the jury’s verdict. In describing the events giving rise to the action, Baker testified that the light had just changed, that she had only started moving forward when she saw brake lights, and that, when Bell’s automobile came to a stop, Baker applied her vehicle’s brakes. According to Baker, she then felt a “bump” as Greer’s automobile contacted her own but did not feel a second impact from her car being pushed into Bell’s vehicle. Baker also testified that, at the time of the incident, she did not believe that her automobile had struck Bell’s automobile.

Greer testified that her vehicle was traveling extremely slowly when it bumped Baker’s vehicle, that she was only easing through the intersection while driving uphill, and that the accident occurred before Greer’s vehicle cleared the intersection. She also testified that she does not know whether Baker’s vehicle struck Bell’s vehicle. Moreover, Greer stated that she did not see any damage to Bell’s automobile after the accident, and, during the trial, Greer introduced photographs taken after the accident that did not reveal any damage to either Bell’s or Baker’s vehicle. In fact, Greer’s own vehicle suffered only minimal damage and did not even require repair work.

Bell testified that when Baker’s automobile hit hers, it felt as if she had been hit in the back with a bat. She also stated that although she was wearing her seat belt, she was “slammed up into the dashboard.” Despite that impact, however, Bell’s automobile did not bump into any of the vehicles in front of her own. Bell also introduced earlier responses to interrogatories in which Baker had stated that Greer’s vehicle had bumped her from behind, pushing her vehicle into Bell’s vehicle. Furthermore, Bell stated that immediately after the alleged collision with her car, she felt a burning sensation in her neck, back, and face. Bell further testified that she spent three hours in the hospital where X-rays were taken and pain medication was subsequently prescribed.

Bell testified that after the accident, she began to experience uncontrollable movement in her arms and legs and that she could not sit or stand without suffering pain. After the accident, Bell was treated by several physicians. Dr. Tai Chung testified that Bell’s MRI showed minimally bulging disks at C5-6 and an enlarged facet joint in her lumbar region. Dr. Chung also stated that bulging disks can occur without having been involved in an automobile collision and that the enlarged facet joint did not, in fact, result from the alleged collision. Another physician, Dr. David Herrick, stated that, although he believed that Bell was suffering from some lumbar nerve irritation, he could not say whether the injury arose from arthritis or from the enlarged facet joint. In addition, Dr. John Peden found no evidence of trauma or anything to suggest the need for surgery on Bell’s neck or back. Moreover, a myelogram revealed that Bell suffered from bulging disks and spur formations, which, according to Dr. John Hackman, are degenerative or arthritic changes that occur over time. Although Dr. Hackman subsequently performed surgery on Bell’s neck, he stated that he did not know whether Bell’s symptoms were caused by the alleged automobile collision.

During the trial, Bell’s earlier medical records were introduced; those records revealed that she had repeatedly complained of neck pain before the alleged collision. Bell testified, however, that she was unable to recall any pain before the collision; she admitted that she had suffered a muscle strain as a result of automobile accidents in 1991 and 1992, but stated that she did not recall the pain lingering through the following years. In addition, Bell introduced an invoice from an automobile repair business in the amount of $976, which she claimed was for damage to her vehicle that resulted from the alleged collision. None of the alleged damage to Bell’s vehicle, including an alleged crack in a taillight cover, appear in the photographs produced at trial. Bell’s testimony was the only evidence offered to prove that the repair bill was related to the alleged collision of September 1997.

It is the jury’s responsibility, not this court’s, “to determine the credibility of the evidence, to resolve conflicts therein, to find the facts, and to express its findings in its verdict.” Jones v. Baltazar, 658 So.2d 420, 422 (Ala.1995). Greer, Baker, and Bell gave conflicting testimony regarding whether an accident involving Bell’s vehicle actually occurred. It was clearly the province of the jury to examine this testimony, giving such weight to each witness’s statement as it deserved, and then to find the facts from that testimony. Apparently, the jury determined that Baker’s automobile did not collide with Bell’s automobile or that Bell suffered no personal injuries or other damage as a result of the alleged collision.

Bell also contends that the trial court erred by not granting her post-judgment motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. The grant or denial of a post-judgment motion rests within the sound discretion of the trial court. Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000); Dare Prods., Inc. v. Alabama, 574 So.2d 847, 850 (Ala.Civ.App.1990). Therefore, the trial court’s ruling “will not be reversed on appeal unless a legal right was abused and the record plainly [and palpably] demonstrates error.” Dare Productions, 574 So.2d at 850; see also Jones v. Baltazar, 658 So.2d 420, 421 (Ala.1995). The jury’s finding that Bell did not carry her burden of proving negligence is supported by the evidence in the record; therefore, the trial court did not abuse its discretion in denying Bell’s postjudgment motion requesting a new trial.

Bell also argues that the trial court erred by not granting her a hearing on her postjudgment motion. According to Rule 59(g), Ala. R. Civ. P., postjudgment motions “shall not be ruled upon until the parties have had opportunity to be heard thereon.” Rule 59(g), however, has not been interpreted to require a hearing in all cases. Our Supreme Court has established that

“the denial of a postjudgment motion without a hearing thereon is harmless error, where (1) there is either no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.”

Historic Blakely Authority v. Williams, 675 So.2d 350, 352 (Ala.1995). In the present case, we cannot say that there was probable merit in the grounds asserted in Bell’s postjudgment motion. Therefore, the trial court’s failure to hold a hearing as required by Rule 59(g), Ala. R. Civ. P., constituted harmless error.

Accordingly, the judgment of the trial court is due to be affirmed.

AFFIRMED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.


author: CRAWLEY, Judge.

text:
    USA MOTOR EXPRESS, INC. v. William Anthony RENNER.
    2010732.
    Court of Civil Appeals of Alabama.
    Jan. 17, 2003.

      David M. Wilson and Jonathan L. Ber-ryhill of Wilson & Berryhill, P.C., Birmingham, for appellant.
    Thomas W. McCutcheon, Florence, for appellee.
   CRAWLEY, Judge.

William Anthony Renner (“the worker”) was employed by USA Motor Express, Inc. (“the company”), as an “over-the-road” truck driver. On December 29, 2000, the worker was resting in the sleeping berth of his truck while the truck was being loaded at a loading dock at an airport near Hartford, Connecticut. When he heard a knock at the door of the truck, the worker got up from the berth; in doing so, he said, he “reached up and pulled [himself] up and twisted around.” As the worker got up from the sleeping berth, he felt his back “pop.” The worker received the necessary documentation for the load from the personnel at the loading dock and proceeded to drive the truck to Huntsville to deliver the load. However, within an hour, he told Larry Gautney, his codriver, that his back hurt and he could no longer drive. Gautney drove almost the entire remainder of the return trip.

The worker sued the company, seeking workers’ compensation benefits. The company, among other things, denied that the worker had properly notified the company of the alleged injury. The worker requested a bifurcated hearing on the sole issue whether his injury was compensable. After the hearing, the trial court entered an order finding that the worker’s injury arose out of and in the course of his employment and requiring the company to “provide medical treatment for the worker.” The order required the company to notify the trial court of the results of the medical treatment within 90 days. The trial court did not award temporary total-disability benefits.

Because of the bifurcation of the issues in this case and the trial court’s very limited order, we will first consider the worker’s suggestion that the trial court’s order is not a final judgment that will support an appeal. We note that, as argued by the company, a trial court’s judgment determining compensability, awarding temporary total-disability benefits, and retaining jurisdiction to determine, once a worker reaches maximum medical improvement, the extent of permanent disability, has been held to be a final judgment that supports an appeal if it “sufficiently ascertains and declares the rights of the parties.” See Ex parte DCH Reg'l Med. Ctr., 571 So.2d 1162, 1164 (Ala.Civ.App.1990); B E & K, Inc. v. Weaver, 743 So.2d 476, 480 (Ala.Civ.App.1999). The company argues that the judgment will support an appeal based on Ex parte DCH Regional Medical Center and Weaver. However, this court recently determined that a judgment that simply determines compensability without also “determining] the amount or the type of benefits to which [the worker] might be entitled” is distinguishable from those judgments found to support an appeal in Ex parte DCH Regional Medical Center and Weaver. International Paper Co. v. Dempsey, 844 So.2d 1236, 1238 (Ala.Civ.App.2002). Such an order does not “sufficiently ascertain and set forth the rights and obligations of the parties” and will not support an appeal. Dempsey, 844 So.2d at 1238. Because the order in the present case, unlike those in Ex parte DCH Regional Medical Center and Weaver, does nothing but determine the compensability of the worker’s injury and because the order was made after a bifurcated hearing at which the only issue was compensability, it is an interlocutory order that will not support an appeal. See Dempsey, 844 So.2d at 1238.

APPEAL DISMISSED.

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

MURDOCK, J., concurs in the result.

      . In his "Statement of Jurisdiction," the worker states that the trial court’s judgment is not final. However, he did not file a motion to dismiss or make an argument in the "Argument” section of his brief to this court that the case was due to be dismissed. In fact, he urged us to affirm the judgment.


author: BASCHAB, Judge. COBB, Judge,

text:
    Tara Booker MERRITT v. STATE of Alabama.
    CR-01-0108.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied Aug. 2, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012140.
    Paul M. Harden, Sr., Monroeville, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, p.j., and WISE, J., concur; COBB, J., concurs in the result, with opinion; SHAW, J., concurs in the result.

COBB, Judge,

concurring in the result.

I concur that the certificate of analysis was admissible and that its admission was not a violation of Tara Booker Merritt’s right to confront witnesses under the Sixth Amendment; however, I disagree with the rationale employed by the majority in its unpublished memorandum in reaching that result.

“The Confrontation Clause of the Sixth Amendment to the Constitution of the United States requires that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him.... The United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, [100 S.Ct. 2531,] 65 L.Ed.2d 597 (1980), emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that a primary interest secured by the Confrontation Clause is the right of cross-examination.”

Ex parte Scroggins, 727 So.2d 131, 132 (Ala.1998).

Section 12-21-300, Ala.Code 1975, provides:

“(a) In any criminal case, or juvenile or family court case which is of a criminal nature, the prosecuting authority may offer a certificate of analysis as described below, in lieu of direct testimony. The court shall receive as evidence the certificate of analysis from any of the following:
“(1) A person performing an analysis or examination in any laboratory operated by the Alabama Department of Forensic Sciences or authorized by the department to conduct an analysis or examination of the type performed.
“(2) A person performing an analysis or examination in any criminalis-tics laboratory established pursuant to federal law.
“(b) To be admissible pursuant to this section, a certificate of analysis shall contain all of the following:
“(1) The date and time the evidence was delivered to the facility.
“(2) The name of the person making the delivery, and the name of the person receiving the delivery.
“(3) A brief description of the evidence.
“(4) The type of examination or analysis requested.
“(5) The name of the person making the examination or analysis.
“(6) The date or dates of the examination or analysis.
“(7) The results of the examination or analysis.
“The certificate of analysis shall give the name and address of the facility in which the examination or analysis was made, and it shall be signed by and sworn to as true and correct, under penalty of law, by the person making the examination or analysis.”

(Emphasis added.)

Section 12-21-301, Ala.Code 1975, provides:

“The party seeking to introduce a certificate of analysis shall not less than 40 days prior to the commencement of the hearing or trial, give written notice to all parties of intent to offer proof by a certificate of analysis. The notice shall include a copy of the certificate of analysis.”

Section 12-21-302(a), Ala.Code 1975, provides:

“The party against whom the certificate is offered may request, not later than 30 days prior to the commencement of the hearing or trial, a hearing to show cause why a subpoena should be issued for cross-examination of the person who performed the examination or analysis.”

(Emphasis added.)

Thus, § 12-21-302(a), Ala.Code 1975, protects a defendant’s right to confront and cross-examine the forensic expert attesting to the information contained in the certificate of analysis.

I must note that it is troubling to me that nothing in the record shows that the State provided Merritt with notice of its intent to introduce a certificate of analysis; however, this omission is negated because no objection was made to the State’s failure. There must be an objection at trial to lack of notice in order to prevent the admission of the certificate of analysis into evidence. See Lee v. State, 748 So.2d 904, 910 (Ala.Crim.App.1999)(trial court erred in overruling the defendant’s objection to the admissibility of a certificate of analysis on grounds that the State had not complied with the statute). The only objection concerning the certificate of analysis presented at trial was to the alleged violation of the confrontation clause. The trial court correctly overruled this objection because the statute specifically provides a defendant a procedure to compel the presence of the forensic expert for cross-examination and this procedure implicitly creates a process to record adverse rulings for appellate purposes. The objection in this case, which was made for the first time during the trial, was first due to be denied because it was untimely and additionally due to be denied because a properly submitted certificate of analysis does not violate the confrontation clause.

I also disagree with the majority’s reliance in its unpublished memorandum on Powell v. State, 804 So.2d 1167 (Ala.Crim.App.2001), for the proposition that forensic testimony is unnecessary in a prosecution for the unlawful possession of marijuana— where guilt must be proven beyond a reasonable doubt. Although I concurred with the decision reached in Powell, I now realize I did so in error. I believe that Powell’s reliance on Alabama caselaw, Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998), and Hanks v. State, 562 So.2d 536, 540 (Ala.Crim.App.), rev’d on other grounds, 562 So.2d 540 (Ala.1989), is misplaced.

Headley is an appeal from the circuit court’s denial of a petition for a writ of habeas corpus after the Department of Corrections found Headley guilty of violating prison regulations. The evidentiary standard required to satisfy due process in a prison disciplinary hearing is “some evidence.” Headley v. State, 720 So.2d at 997. The Headley court opined that where an officer testified that based on his “expertise or the knowledge” plant material was marijuana, the “some evidence” standard was met. I agree.

Hanks was convicted of manslaughter. A police officer was allowed to testify that he smelled marijuana in Hanks’s car; he saw two cigarettes in the floorboard; he saw a “roach” in the ashtray; and he saw some “green leafy substance” in a plastic baggie in a purse on the front seat. The officer was allowed to testify that, based on his experience and training, it was his opinion that these substances were marijuana. I believe that the officer’s identifying the material as part of the continuum of circumstantial evidence in a manslaughter case is different from identifying the material as the corpus delicti in a possession-of-marijuana case.

I also disagree with Powell’s reliance on cases from other jurisdictions as persuasive authority to allow an officer to establish that the material in question is in fact marijuana. I believe where the burden of proof is beyond a reasonable doubt, forensic testimony (or a certificate of analysis) is required.

Alabama caselaw acknowledges that “ ‘marijuana’ contains ‘tetrahydrocannabi-nol (THC),”’ Sharpe v. State, 384 So.2d 633, 634 (Ala.Crim.App.1980), citing Haynes v. State, 54 Ala.App. 714, 312 So.2d 406 (1975). Thus, “the THC content of marijuana is irrelevant,” McElroy v. State, 611 So.2d 431, 432 (Ala.Crim.App.1992). Therefore, the State need prove only that the substance is marijuana. I believe that proof beyond a reasonable doubt requires the testimony of a toxicologist, a chemist, or some similar professional. See Radney v. State, 342 So.2d 942, 945 (Ala.Crim.App.1976)(once toxicologist, using his testing procedures, concluded that the substance purchased from the defendant was marijuana, no proof of the tetrahydrocannabinol content was necessary); Winnings v. State, 370 So.2d 323, 328 (Ala.Crim.App.1979)(once toxicologist positively identified substance as marijuana, “no proof of THC content was necessary”). I can find no caselaw in Alabama, other than Powell, allowing guilt in a possession-of-marijuana or a trafficking-in-marijuana case to be established beyond a reasonable doubt based on the testimony of a law-enforcement officer instead of the testimony of a toxicologist, a chemist, or some similar expert.

For the above reasons, I concur only with the result reached by the majority in its unpublished memorandum.

      . We also allow officers to give their opinion in probable-cause hearings because "probable cause” is defined as " ‘facts and circumstances ... such as warrant a man of reasonable prudence and caution in believing that the offense has been committed/ and that the person in question is the offender.” Vincent v. State, 349 So.2d 1145, 1146 (Ala.1977)(juvenile transfer proceeding)(quoting United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)).

      . " '[T]he evidence must establish the truth of the fact to a ... certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it.’ ” Victor v. Nebraska, 511 U.S. 1, 8, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994).


author: COBB, Judge.

text:
    Clinton J. MANCUSO v. STATE of Alabama.
    CR-01-0283.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied Aug. 9, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1012176.
    James Warren May, Foley, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On September 11, 2001, Clinton J. Man-cuso was convicted of domestic violence in the third degree, a violation of § 13A-6-132, Ala.Code 1975. On October 25, 2001, the trial court sentenced him to serve 12 months in the Baldwin County jail and ordered him to pay a $250 fíne pursuant to the Alabama Crime Victims Assessment Act. This appeal followed.

We note that effective July 1, 2000, the crimes of domestic violence in the first, second, and third degrees were added to the Ala.Code 1975. See §§ 13A-6-130, -131, and -132, Ala.Code 1975. It appears from our research that the issues presented by Mancuso with regard to his third-degree domestic violence conviction have yet to be addressed by any Alabama cases. Additionally, our research has failed to uncover any cases involving the offense established by § 13A-6-132, AIa.Code 1975, in general.

On August 14, 2000, Mancuso and his wife Norshay, who was pregnant at the time, were arguing in the kitchen of their home. Mancuso told Norshay that he was leaving her and moving back to Texas. After a verbal exchange, Norshay took a shower and then went into the kitchen where Mancuso was using a large kitchen knife to cut onions. They began arguing again, and Mancuso cut Norshay on the hand with the knife. After he cut her, Mancuso offered to take Norshay to the hospital, but he left when she told him she was going to call the police. Norshay telephoned the police and was transported to the hospital; she received stitches to close the cut on her hand. She was kept in the hospital for observation because she was experiencing stomach pains. Mancuso was arrested later at his father’s house.

There is conflicting testimony as to how Norshay was cut with the knife. Norshay testified:

“[Mancuso] walks at me with the knife like this. And he says, ‘I’ll just kill you and the baby.’ That’s when he proceeded to go to my throat, twice.
“And when he went down toward my stomach, and I’m stepping back — the second time, he went toward my stomach with the knife, which was another slashing motion, I put my hand in front of my stomach to protect the baby. And when I did, the knife hit my hand instead of my stomach.”

(R. 46.) Mancuso acknowledged cutting Norshay, but testified that it was an accident. He testified that he tends to “talk with [his] hands.” (R. 121.) He further testified that he did not slash at her with the knife and he did not realize she had been cut until he saw her hand bleeding.

Mancuso asserts two issues on appeal, and we address each in turn.

I.

First, Mancuso argues that the trial court erroneously denied his request for a more specific verdict form. Specifically, Mancuso contends that the verdict form was inadequate because it contained only a place for a finding of guilty or not guilty, but did not require that the jury specify the factual manner in which they found the offense was committed. We disagree.

In his objection to the jury form, Man-cuso stated:

“[We do not have any objections to the jury] charge, Your Honor. But we object to the verdict form on the ground that it lumps the offenses which you consider lesser included offenses of assault third, menacing, and reckless endangerment into one count, so that if the jury were to return a verdict of guilty of the lesser included offense, which you characterized on the verdict form as domestic violence third, it would be impossible for anybody to know whether or not they had found Mr. Mancuso guilty of domestic violence third on the basis of an assault third, of either variety, with which you instructed them, that is, assault third, reckless or assault third, criminal negligence, or menacing, or reckless endangerment

(R. 147-48.) The trial judge overruled the objection.

Mancuso was convicted of third-degree domestic violence as a lesser-included offense of second-degree domestic violence, § 13A-6-131, Ala.Code 1975. Section 13A-6-132(a), Ala.Code 1975, provides in relevant part:

“A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22; the crime of menacing pursuant to Section 13A-6-23; the crime of reckless endangerment pursuant to Section 13A-6-24; the crime of criminal coercion pursuant to Section 13A-6-25; or the crime of harassment pursuant to subsection (a) of Section 13A-11-8; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant.”

Section 15-17-3, Ala.Code 1975, provides:

“When the intent with which, the mode in or the means by which an act is done is essential to the commission of the offense and such offense may be committed with different intents, in different modes or by different means, if the jury is satisfied that the act was committed with one of the intents, in one of the modes or by either of the means charged, it is sufficient; and the jury must convict, although uncertain as to which of the intents charged existed, in which mode or by which of the means charged such act was committed.”

In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), Justice Scalia, concurring in the judgment, addressed a similar issue; he stated: “As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission.” Schad v. Arizona, 501 U.S. 624, 649, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring in part and concurring in the judgment).

In Perkins v. State, 808 So.2d 1041 (Ala.Crim.App.1999), aff'd, 808 So.2d 1143 (Ala.2001), this Court stated:

“ ‘ “If a statute describes a single offense which may be committed in more than one factual manner, or by way of different acts, jury unanimity is not necessary as to the means by which it is committed, where the acts are conceptually similar or not repugnant to each other.”’ Knotts [v. State, 686 So.2d 431, 461 (Ala.Crim.App.1995) ], quoting 23A C.J.S. Criminal Law § 1398 (1989).”

808 So.2d at 1059. In Harris v. State, 632 So.2d 503 (Ala.Crim.App.1992), aff'd, 632 So.2d 543 (Ala.1993), aff'd, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995), this Court stated: “‘Our cases reflect a long-established rule of the criminal law that an indictment need not specify which overt act, among several named, was the means by which a crime was committed.’ ” 632 So.2d at 514 (quoting Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)).

“The appellant argues that because the trial court charged the jurors that all 12 must agree as to one of three possible verdicts — guilty of the capital offense, guilty of lesser-included offense, or not guilty — the trial court’s instructions were improper. Specifically, the appellant argues that the instruction was error because it did not require the unanimity as to one of the alternative theories of the capital offense, i.e., murder for hire, murder pursuant to a contract, or murder for pecuniary gain. However, because we have previously concluded that the jury did not have to decide between this alternative language, the trial court committed no error in its instructions. See Schad v. Arizona, [501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) ] (it was constitutionally permissible for the jurors to agree on a unanimous verdict based on any combination of the alternative means to a single offense. 501 U.S. at 624, 111 S.Ct. at 2493-506).”

Harris, 632 So.2d at 515.

The trial court properly charged the jury on unanimity. The jurors were not required to agree on the method by which Mancuso committed third-degree domestic violence. Therefore, the verdict form was not improper, and the trial court did not err when it denied Mancuso’s request for a more specific verdict form. Because his claim is without merit, Mancu-so is not entitled to any relief.

II.

Mancuso appears to argue that because the verdict form did not indicate under which underlying offense the jury convicted him, he cannot effectively argue that there was insufficient evidence to support his conviction. In his brief, Mancuso cited several cases attacking the sufficiency of the evidence, and then stated:

“We are not naive enough to believe that this Court will accept all of the arguments with respect to the lack of evidence to support any of the constituent offenses. The point is for the purpose of demonstrating to this Court that in order to determine whether there is or is not sufficient evidence it must be known what the trial jury decided. This Court should not substitute its own determination of fact for that of the jury, whatever it was.”

(Mancuso’s brief, p. 11.) As we addressed in Part I of this opinion, the jury was not required to unanimously agree by which method Mancuso committed third-degree domestic violence. Rather, to convict, the jury was required only to unanimously agree that Mancuso committed any of the included offenses and that the victim was within the statutory definition of included victims.

The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

“ ‘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. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala.1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their 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) (emphasis original).”

730 So.2d at 658.

Section 13A-6-22, Ala.Code 1975, provides that:

“(a) A person commits the crime of assault in the third degree if:
“(2) He recklessly causes physical injury to another person; or
“(3) With criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.”

Section 13A-6-23(a), Ala.Code 1975, provides that: “A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.” Section 13A-6-24(a), Ala.Code 1975, provides that: “A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

The evidence showed that Mancuso and Norshay were married and living together at the time of the incident. Norshay and Mancuso both testified that he was holding a large, fixed-blade kitchen knife at the time of the incident and that she was cut by the knife. Norshay testified that the cut hurt and that she felt pain. She was taken to the hospital, and the cut was closed with sutures. Norshay testified that Mancuso walked toward her and said “I’ll just kill you and the baby.” (R. 46.) Norshay testified that this statement frightened her. She also testified that Mancuso slashed at her throat twice and then at her stomach twice, the second time cutting her hand.

Mancuso testified that he and Norshay were within an arm’s length of each other and that he was waving the knife around. He did not stab or slash at her, but rather he “tend[ed] to talk with [his] hands.” (R. 121.)

The State presented sufficient evidence, if believed by the jury, from which the jury could convict Mancuso of domestic violence in the third degree based on reckless endangerment, menacing, or either theory of assault in the third degree.

Because his claim is without merit, Man-cuso is not entitled to any relief.

For the above-stated reasons, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

McMILLAN, PA., and BASCHAB, SHAW, and WISE, JJ., concur.


author: McMILLAN, Presiding Judge.

text:
    Morris E. BOWMAN, Jr. v. STATE.
    CR-01-0797.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Morris E. Bowman, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Morris E. Bowman, Jr., appeals from the trial court’s summary denial of this Rule 32, Ala. R.Crim. P., petition, attacking his two 1992 convictions for second-degree robbery and his sentences of life imprisonment. He argues that the trial court improperly amended the indictments charging him with first-degree robbery to charge second-degree robbery, and, thus, that the trial court was without jurisdiction to accept his guilty pleas to second-degree robbery. Bowman contends that second-degree robbery was not a lesser offense included within the offense of first-degree robbery because, he claims, he was not aided in the commission of the offense by another person. He further argues that his sentences of life imprisonment exceed the range of punishment for second-degree robbery because, he claims, he was not sentenced as a habitual offender.

“A trial court does not have the authority to accept a guilty plea to an offense not encompassed by the indictment. Edwards v. State, 671 So.2d 129 (Ala.Cr.App.1995); Glover v. State, 649 So.2d 216 (Ala.Cr.App.1994); Ford v. State, 612 So.2d 1317 (Ala.Cr.App.1992); Ross v. State, 529 So.2d 1074 (Ala.Cr.App.1988). See Rule 13.5(a), Ala. R.Crim.P. When the trial court accepts a guilty plea under such circumstances, the court’s judgment is void, because the defendant is convicted of an offense for which the defendant has not been indicted and an essential requirement of jurisdiction is therefore missing.’ Edwards, 671 So.2d at 130.”

Howard v. State, 710 So.2d 456, 459 (Ala.Crim.App.1996).

“Robbery in the second degree is not a lesser included offense of robbery in the first degree, unless the defendant is aided in the commission of the robbery by another person actually present and a participant in the robbery is armed with a deadly weapon or dangerous instrument or causes physical injury to another.”

Howard, 710 So.2d at 458. In the present case, the trial judge should determine whether Bowman acted alone, conducting an evidentiary hearing if necessary. If he determines that Bowman did act alone, then the convictions are void and due to be set aside, as Bowman pleaded guilty to offenses not charged in the indictments and the trial court was without jurisdiction to accept his guilty pleas. Bowman should be permitted to withdraw his guilty pleas, and the State is free to reindict him for the proper offenses.

If, however, the trial court finds that it did have jurisdiction to accept Bowman’s guilty pleas to second-degree robbery, then that court should determine whether he was properly sentenced, as a habitual offender, to life imprisonment.

This matter is therefore remanded to the trial court for proceedings consistent with this opinion. Due return shall be made to this Court within 28 days of the date of this opinion. The return should include a transcript of any proceedings held on remand and a copy of the trial court’s findings of fact.

REMANDED WITH DIRECTIONS.

COBB, SHAW, and WISE, JJ„ concur. BASCHAB, J., concurs in the result.


text:
    Alton Dewayne PORTLOCK v. STATE of Alabama.
    CR-01-0708.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied June 14, 2002.
    Certiorari Denied Dec. 13, 2002 Alabama Supreme Court 1011795.
    Joseph D. Quinlivan, Jr., Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., concurs in the result, with opinion.

COBB, Judge,

concurring in the result.

I agree that Alton Dewayne Portlock’s conviction should be affirmed; however, unlike the majority, I believe that Portlock did preserve his contention that the trial court erred in refusing to give his requested jury instructions on heat-of-passion manslaughter.

Testimony at trial was to the effect that Portlock and the victim were arguing. As Portlock began to walk away, the victim called him a “punkass motherfucking bitch.” Portlock turned, stared at the victim, then shot him in the head three times and in the chest once. (R. 90.)

Portlock’s written requested jury charge no. 5 was as follows:

“The court charges the jury that a lesser included offense charged in the indictment is the offense of heat of passion manslaughter.”

(C. 17.)

Before the jury began deliberating, Portlock made the following objection to the trial court’s refusal to give requested charge no. 5:

“I would like to take exception to the Court failing to give my requested charge[] numbered 5 ... concerning manslaughter as a lesser included charge, in light of the fact, Judge, that we did present sufficient evidence for
the Court to charge the jury on self-defense.”

(R. 257.)

I believe that “[i]t is clear that the trial court understood the basis for the objection.” Covington v. State, 620 So.2d 122, 127 (Ala.Crim.App.1993), citing Felder v. State, 593 So.2d 121, 122-23 (Ala.Crim.App.1991); Marshall v. State, 570 So.2d 832, 834 (Ala.Crim.App.1990); Ex parte McCall, 594 So.2d 628, 631 (Ala.1991); and Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991).

Although I believe the claim is preserved, the trial court’s refusal to instruct the jury as requested was not error. The record supports the trial court’s ruling that there was “no evidence whatsoever that would justify a charge of lesser included offense of manslaughter.” (R. 196.) “Mere words ... no matter how abusive or insulting, will not reduce a homicide from murder to manslaughter.” MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997).

Therefore, though I agree with the result reached by the majority in its unpublished memorandum, I disagree with its rationale.


text:
    Doncey Frank BOYKIN v. STATE of Alabama.
    CR-01-1394.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Doncey Frank Boykin, pro se.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   COBB, Judge.

After having been indicted for two counts of first-degree robbery, Doncey Frank Boykin pleaded guilty to two counts of second-degree robbery on June 22, 1987. The trial court sentenced him to two concurrent sentences of 15 years in prison. Boykin did not appeal.

On February 22, 2002, Boykin filed a Rule 32, Ala. R.Crim. P., petition. After the State had responded, the circuit court summarily denied the petition. This appeal followed.

We do not address Boykin’s claims in his petition or on appeal. Rather, we notice, ex mero motu, a problem involving the jurisdiction of the trial court to accept one of Boykin’s guilty pleas. See Ex parte Cole, 842 So.2d 605, 609 (Ala.2002) (“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery— the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea.”).

Boykin has attached to his petition what he alleges are copies of the indictments in these cases. The indictment in question reads as follows:

“[Boykin] did, in the course of committing a theft of Ninety-Five Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Carolyn Snodgrass, threaten the imminent use of force against the person of Carolyn Snodgrass, with the intent to compel acquiescence to the taking of or escaping with the property, while [Boykin] was armed with a deadly weapon or dangerous instrument, to wit: a pistol, in violation of Section 13A-8-41 of the Alabama Criminal Code.”

(C. 34.)

“If at these guilty-plea proceedings, the indictment was ‘amended,’ the State was required to comply with Rules 13.5(a) and 13.2(c)[, Ala. R.Crim. P.,] and' to confine its ‘amendment’ to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that describes the defendant’s conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is ‘aided by another person actually present.’ § 13A-8-42, Ala.Code 1975....”
“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant—an essential element of the offense of second-degree robbery—the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment.”

Cole, 842 So.2d at 608-09.

As in Cole, one of the first-degree robbery indictments in this case apparently “fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant—an essential element of the offense of second-degree robbery....” Id.

We cannot determine from the copy of the indictment attached to Boykin’s petition or from the record before us whether the indictment in question is the actual indictment from this case. We also cannot determine whether the indictment was amended with Boykin’s consent. Therefore, we remand this cause to the circuit court in order for it to take evidence, if necessary, to determine whether Boykin’s plea to second-degree robbery as charged in the indictment quoted above is valid.

If the circuit court finds that the indictment returned against Boykin did not contain facts sufficient to allege second-degree robbery, the plea is not valid, and it shall vacate the plea. However, Boykin’s original indictment for first-degree robbery remains valid. Cole, supra. The State may try Boykin on this charge or may reindict Boykin for the proper offense. See Cole, 842 So.2d at 609 (“A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.”).

Due return shall be made within 56 days of the release of this decision.

We pretermit discussion of Boykin’s other claims until return to remand.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.

      . The other indictment is similar, but includes the fact that Boykin "aid[ed] and abet[ted] another person whose name is to the grand jury otherwise unknown.” (C. 33.) Therefore, that indictment is valid and is not addressed in this opinion.


text:
    Michael RUSS v. STATE.
    CR-00-2592.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Opinion on Return to Remand Jan. 31, 2003.
    Michael Russ, pro se.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

The appellant, Michael Russ, appeals from the trial court’s order summarily dismissing his Rule 32, Ala. R.Crim. P., petition for postconviction relief. In his petition, Russ stated that he had failed to appeal the trial court’s ruling on a prior Rule 32 petition within the prescribed time but that that failure had been without fault on his part. The State moved for a dismissal of the petition, arguing that Russ had failed to state a claim for relief and that the present petition was successive. The trial court granted the State’s motion and summarily dismissed the August 13 petition.

Russ contends that the trial court erred in dismissing his present petition without an evidentiary hearing. He argues that the petition was not successive because his prior petitions had not been considered on the merits. He also argues that he presented sufficient evidence that, if true, entitles him to relief. Russ stated in his August 13, 2001, petition that he had been convicted of attempted murder, theft, and burglary in 1991 and that those convictions had been affirmed by this Court on appeal. He also stated that he had filed three earlier Rule 32 petitions, each of which had been denied. Russ stated as the factual basis of the August 13 petition that “he was not aware or receive [sic] an order of this Honorable Court denying or dismissing his Rule 32 petition on August 22, 2000.” He attached as an exhibit to the August 13, 2001, petition a letter dated July 27, 2001, in which he asked the circuit court clerk “for the status of my Rule 32 petition filed on or about June 29, 2000.” The letter contains a handwritten notation, dated July 31, 2001, which states, “Your Rule 32 was denied or dismissed on 8-22-00. [Signed] BW.”

Russ argues that he did not appeal the dismissal of his Rule 32 petition filed on June 29, 2000, within the prescribed time because he did not receive the order issued by the trial court.

Based on our review of the record, and on this Court’s recent holding in Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d — (Ala.Crim.App.2002), we remand this cause to the trial court to determine whether Russ may, in fact, be entitled to an out-of-time appeal from the dismissal of his June 29, 2000, Rule 32 petition and, therefore, to determine whether the summary dismissal of his Rule 32 petition filed on August 13 was proper. Accordingly, we remand this case to the trial court for it to take the necessary steps to determine when its order denying Russ’s June 29, 2000, petition was entered — i.e., stamped as received by the circuit clerk — and to determine whether Russ received a copy of the order that was stamped as received by the circuit clerk. If the trial court determines that the 42-day period for filing a notice of appeal had run before Russ received his copy of the order dismissing his prior Rule 32 petition or if the trial court determines that Russ received no notice that the order had been entered and, thus, that the 42-day appeal period had begun to run, as Russ alleges in his present petition, it shall grant Russ an out-of-time appeal.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return to Remand

McMILLAN, Presiding Judge.

On August 30, 2002, we remanded this case to the trial court for it to take the necessary steps to determine when its order denying Russ’s June 29, 2000, Rule 32, Ala. R.Crim. P., petition was entered — i.e., stamped as received by the circuit clerk— and to determine whether Russ received a copy of the order that was stamped as received by the circuit clerk. If the trial court determined that the 42-day period for filing a notice of appeal had run before Russ received his copy of the order dismissing his Rule 32 petition or if the trial court determined that Russ received no notice that the order had been entered and, thus, that the 42-day appeal period had begun to run, as Russ alleged in his petition, it was to grant him an out-of-time appeal.

Pursuant to this Court’s instructions, the trial court issued the following order:

“After diligent review of the file(s), it is readily apparent that the order denying Russ’s June 29, 2000 petition was stamped as received by the clerk on August 25, 2000.... While the trial court customarily mails a copy of all orders to the parties and/or attorneys of record on the date it is filed in the circuit clerk’s office, it is not the practice of the Court to send such orders by certified mail. It is, therefore, impossible to determine with certainty whether the petitioner ever received such order, much less whether he received it prior to expiration of time for filing appeal.
“It is therefore, Ordered, Adjudged and Decreed Petitioner is Granted an out-of-time appeal.”

This appeal is therefore dismissed; petitioner may file an out-of-time appeal.

APPEAL DISMISSED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.