author: CRAWLEY, Judge.

text:
    Dwight CARLISLE, Commissioner, Alabama Department of Revenue v. GOLDEN ROD FEED MILL.
    2020696.
    Court of Civil Appeals of Alabama.
    Dec. 19, 2003.

      William H. Pryor, Jr., atty. gen., and Ron Bowden, chief counsel and asst. atty. gen., and Keith Maddox, asst, counsel and asst. atty. gen., Department of Revenue, for appellant.
    Finis E St. John IV and Champ Crocker of St. John & St. John, LLC, Cullman, for appellee.
   CRAWLEY, Judge.

Dwight Carlisle, as Commissioner of the Alabama Department of Revenue, appeals from the circuit court’s entry of a summary judgment in favor of Golden Rod Feed Mill (“Golden Rod”). We affirm.

The underlying facts of this case are undisputed. Those facts, as stated in Car-lisle’s brief on appeal, are as follows:

“On January 11, 2002, [Golden Rod] appealed five (5) ‘escape’ property or ad valorem tax assessments to the Circuit Court of Cullman County. The Revenue Commissioner of Cullman County ... had entered final property tax assessments against property owned by Golden Rod that had escaped taxation for the years 1996 through 2000. The escape assessments were entered pursuant to [§ ] 40-7-23 [Ala.Code 1975],
“Golden Rod stated that it agreed with the base amount of taxes due along with the 10% penalty provided for in [§ ] 40-7-23. However, Golden Rod did object to the addition of a 12% per an-num interest added onto each assessment. This interest accrued from the original due date of each year’s taxes, i.e., December 31 of the following year. It is this matter of the 12% interest that is the subject of this appeal.”

(Citations to record and footnote omitted.)

Both Carlisle and Golden Rod filed motions for a summary judgment; after conducting a hearing on the competing motions, the circuit court entered an order that stated, in pertinent part:

“On December 28, 2001, [Golden Rod] paid ... [the] Cullman County Revenue Commissioner $18,639.63 for escaped taxes, penalties and 12 percent interest for tax years 1996-2000. [Golden Rod] then timely appealed to this court, not disputing the applicable taxes and penalties but only the 12 percent interest. [Golden Rod] contends that [the] proper sum is $13,743.73, a sum representing the taxes owed and appropriate penalties.
“Alabama Code [§] 40-5-9 provides for interest on delinquent ad valorem taxes. In this case, the taxes are not delinquent. It is well-established under Alabama law that in the absence of a specific statute therefor, interest is never recoverable on taxes, even if delinquent. There is no such statute allowing for interest on escaped taxes.”

Pursuant to this determination, the circuit court granted Golden Rod’s motion for a summary judgment and ordered that Golden Rod be refunded the amount representing the 12% interest, $4,895.90. Carlisle filed a notice of appeal to this court.

On appeal, Carlisle contends that the circuit court erred in determining that interest was not due to be paid on Golden Rod’s “escaped” ad valorem taxes. Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). It has also been observed that “where the facts are not in dispute and we are presented with pure questions of law, [the] standard of review is de novo.” State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000)(citing Ex parte Graham, 702 So.2d 1215 (Ala.1997), and Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994)).

Carlisle argues that escape assessments of ad valorem taxes, as provided for by § 40-7-23, Ala.Code 1975, are, by definition, delinquent, and that § 40-5-9, Ala. Code 1975, provides that 12% interest is to be added to delinquent ad valorem taxes. He further argues that the assessments in this case are final and interest began to accrue on those assessments on the date the taxes would have originally been due (in this case, December 31, 1996, 1997, 1998, 1999, and 2000, respectively). Section 40-7-23 states, in pertinent part:

“(a) Whenever the tax assessor, county revenue commissioner, or other assessing official shall discover that any property, including any improvements on real estate assessed as vacant property, has escaped taxation in any assessment within five years next preceding the current year, he shall list, return, and value said property for assessment for the years during which same has escaped taxation and shall also endorse on such returns the year or years for which the property has escaped taxation and, except as provided in subsection (b) hereinafter, the accrual of a penalty of 10 percent of the taxes assessed thereon for each year.
“(d) The assessing official shall give notice of an escape assessment by certified or registered mail, return receipt requested, to the owner or to the agent or attorney of such owner, notifying such person to appear before the assessing official in person, or by agent or attorney, within 20 days after such notice is given, if there is an objection to the assessment, and notifying such person that if no objection is made said assessment will be made final on the twentieth day after the mailing of such notice of escape assessment. If on the date set for hearing such objection the person against whom the assessment is made fails to appear or if in the opinion of the assessing official the assessment should not be changed and the assessment is proper, then the assessing official shall make the assessment final. The property owner, if he has filed objection to such assessment, may appeal from the assessment to the circuit court of the county in which the property is located within 30 days after such assessment becomes final, by giving notice in writing to the assessing official and by filing a copy of such notice with the clerk of the circuit court and giving bond to be approved by and filed with the clerk of the circuit court to cover costs, and thereafter such case shall be tried as other tax cases appealed to the circuit court from the board of equalization. The taxpayer or the state shall have the right to demand a trial by jury by filing a written demand therefor, within 10 days after the appeal is taken.
“(e) Whenever any escape assessment is made final the taxes shall immediately become due, and the assessor, deputy assessor, or other assessing official shall forthwith certify the assessment to the tax collector, or other collecting official, who shall forthwith collect same, unless at the time of taking the appeal the taxpayer has executed a supersedeas bond with sufficient sureties to be approved by the clerk of the circuit court in double the amount of the taxes, payable to the State of Alabama, conditioned to pay all taxes, interest, and costs due the state, county, or any agency or subdivision thereof.”

Section 40-5-9 states:

“Notwithstanding the provisions of Section 40-1-44, all ad valorem taxes becoming delinquent bear interest at the rate of 12 percent per annum, and such interest must be added to and collected as part of the taxes and reported in such manner as the Comptroller may prescribe.”

It is apparent from our reading of § 40-7-23 that a taxpayer’s payment of an escape assessment of ad valorem taxes cannot become due, and thereafter delinquent, until after the assessment becomes final. Section 40-7-23(e) provides that the escape assessment becomes final and can be collected unless at the time of taking an appeal, the taxpayer provides a supersede-as bond that is double the amount of the taxes. In this case, not only did Golden Rod provide payment for the entire amount sought by the Department of Revenue prior to filing its appeal, but it also submitted a sufficient supersedeas bond when it appealed to the circuit court. In Valentine v. State, 403 So.2d 270 (Ala.Civ.App.1981), this court determined that taxpayers that had paid a portion of a challenged tax assessment into court some four months after filing an appeal were delinquent. See also Smith v. Pullman Inc., 280 Ala. 295, 298, 193 So.2d 516, 518 (1966)(“Taxes can hardly be delinquent in the absence of a final assessment. [When an appeal has been taken from an assessment,] there [is] no final assessment until the court render[s] its judgment.”). Accordingly, we conclude that Golden Rod was not delinquent on its payment of the escape assessment of ad valorem taxes and the circuit court’s judgment is due to be affirmed.

AFFIRMED.

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

      . Section 40-1-44 states, in pertinent part:
      "(a) Interest shall be added as provided herein to any tax or other amount due the department which is not paid by the due date. Interest on any delinquency shall be charged from the due date of the tax, except (1) interest on delinquent license taxes levied under Chapter 12 of this title shall be charged from the delinquent date provided in subsection (e) of Section 40-12-10; and (2) interest on delinquent license tax and registration fees levied on motor vehicles shall be charged beginning after the period allowed for registration or renewal; and (3) interest on the freight lines and equipment companies tax levied in Section 40-21-52 shall be charged from the delinquent date thereof. The interest shall be computed based on the underpayment rate established by the Secretary of the Treasury under the authority of 26 U.S.C. § 6621.”


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    David A. GIRARD v. STATE of Alabama.
    CR-01-0403.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Feb. 14, 2003.
    Thomas P. Williams, Robertsdale, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On May 23, 2001, David A. Girard was indicted for 26 counts of possessing obscene matter and one count of contributing to the delinquency of a minor, violations of §§ 13A-12-192(b) and 12-15-13, Ala.Code 1975. Girard’s trial began on October 10, 2001.

After the State had presented its casein-chief, the trial court granted Girard’s motion for a judgment of acquittal on counts 2 through 6, 14, and 17 through 26, leaving pending 10 counts of possession of obscene matter. On October 11, 2001, the jury found Girard guilty of all 10 counts.

On November 14, 2001, the trial court sentenced Girard, on each count, to 10 years in prison, but split the sentence and ordered Girard to serve 3 years in prison followed by 5 years on probation. The trial court ordered that Girard’s sentences were to run concurrently.

The facts adduced at trial indicate that a search of Girard’s home, including his personal computer, yielded numerous downloaded images and videos of underage boys. The images were found on a disc in Girard’s computer and on the hard drive on his computer. The files dated from April 3, 1998, and were, for the most part, downloaded on different days. Some files contained multiple images.

Girard advances only one argument on appeal. He argues that the trial court erred to reversal when it denied his motion to strike counts 2 through 26 as extraneous. The State argues only that this argument is not preserved for appellate review. Although Girard’s motion may have been untimely, the State’s argument nonetheless is not well taken.

Initially, we note that Girard’s argument implicates the constitutional guarantee against being subjected to double jeopardy. See Powell v. State, 854 So.2d 1206 (Ala.Crim.App.2002) (quoting Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999)). Therefore, we would review this argument even if it had not been preserved for appellate review.

Additionally, “[n]o issue concerning a defect in the charges shall be raised other than by a motion filed in accordance with Rule 15.” Rule 13.5(b), Ala. R.Crim. P. “Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3.” Rule 15.2(a), Ala. R.Crim. P. “A motion under Rule 15.2 must be made[ i]n circuit court, at or before arraignment or by such later date as may be set by the court.” Rule 15.3(a)(1), Ala. R.Crim. P.

Girard was arraigned and entered a plea of not guilty on June 22, 2001. On October 10, 2001, the day the trial was to begin, Girard filed a motion to strike counts 2 through 26 as duplicitous, alleging that the charges were cumulative and excessive. (C. 37.) On that same day, the trial court held a pretrial hearing on the motion. The State argued the merits of the motion; it did not argue that the motion to strike was untimely.

Because the trial court ruled on the merits and the State did not object to the untimeliness of the motion, this Court cannot proeedurally bar this issue from appellate review. See Rutherford v. State, 612 So.2d 1277 (Ala.Crim.App.1992); Atwell v. State, 594 So.2d 202 (Ala.Crim.App.1991). See also Ex parte Williams, 571 So.2d 987 (Ala.1990). Therefore, we address the merits of Girard’s argument that all but one of the charges for possession of obscene material should have been dismissed.

The statute under which Girard was indicted for 26 violations reads, in pertinent part, as follows:

“Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.”

§ 13A-12-192(b), Ala.Code 1975.

This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Rather, this is a case where Girard’s conduct has yielded an indictment in which the possession of each file of obscene material has been charged as a separate crime under the same statute. The pertinent inquiry in deciding whether this is acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U,S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

“ ‘A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Such question of double jeopardy is determined by the following principles:

“ ‘It has been aptly noted that “the Blockburger [v. United States, 284 U.S. 299 (1932),] test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.” Rashad v. Burt, 108 F.3d 677 (6th Cir.1997). This is because when “a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.” State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). The “appropriate inquiry” in such a case “asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act. ... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.” Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).’
“4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed.1999). See also Project, ‘Twenty-Ninth Annual Review of Criminal Procedure,’ 88 Geo. L.J. 879, 1293 (2000) (‘when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown’).”

Townsend v. State, 823 So.2d 717, 722 (Ala.Crim.App.2001) (footnote omitted).

The Court of Criminal Appeals has addressed Girard’s argument regarding multiple prosecutions one time and then only in dicta. In Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989), the defendant was indicted for four counts of possession of obscene material, violations of § 13A-12-192(b), Ala.Code 1975. Harris filed a “ ‘motion to dismiss the indictment as being multiplicitous, or in the alternative, motion to compel an election by the State as to the count it intends to prosecute.’ ” 563 So.2d at 9. The trial court denied the motion, and Harris subsequently pleaded guilty and received concurrent sentences of five years in prison. The Court of Criminal Appeals held that Harris had waived this argument by pleading guilty subsequent to the denial of his motion, but continued:

“Harris was charged in a four-count indictment with four separate violations of § 13A-12-192(b). Count one alleged the possession of a pornographic magazine. Counts two, three, and four each involved the possession of a different video cassette tape. Harris contends that he should have been convicted and sentenced for only one offense, because the magazine and cassette tapes were seized from his residence on the same occasion. We recognize that this argument may have considerable merit. See United States v. Meyer, 602 F.Supp. 1480, 1480-81 (S.D.Cal.1985) (the appropriate unit of prosecution for offenses of transportation of material involving sexual exploitation of children and importation of obscene material, arising from defendant’s transporting several photographs in one binder, was one count for each offense, rather than one count for each photograph for each offense); Braunstein v. Frawley, 64 A.D.2d 772, 407 N.Y.S.2d 250, 253 (1978) (‘[t]he promotion or possession of more than one item at the same time and on the same date constitutes one crime, and cannot be split into as many crimes as there are items’); State v. Smith, 323 N.C. 439, 373 S.E.2d 435, 438 (1988) (‘[o]ther courts have similarly held that a single transaction involving obscene materials constitutes but one offense’). See also United States v. Kinsley, 518 F.2d 665 (8th Cir.1975) (possession of firearms); Vogel v. State, 426 So.2d 863, 878-82 (Ala.Cr.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983) (possession of drugs); Owens, Alabama’s Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 105-06 (1985) (discussed in McKinney v. State, 511 So.2d 220 (Ala.1987)). However, this issue has not been preserved for review.”

563 So.2d at 10.

The act rendered illegal by the statute— the possession of any obscene matter, even if the possession is of multiple pieces of obscene matter — is simultaneous and inseparable, more like the simultaneous, single act of transportation or importation of multiple pieces of obscene matter, see United States v. Meyer, 602 F.Supp. 1480 (S.D.Cal.1985), than the separate transactions involved in the distribution of multiple pieces of obscene matter, see King v. State, 674 So.2d 1381 (Ala.Crim.App.1995). Thus the unit of prosecution is the simultaneous possession of a collection of obscene material; in this case, there was but one possession.

For these reasons, the judgment of the trial court is reversed, and this cause is remanded for the trial court to vacate all but one of the convictions and sentences against Girard. Due return shall be made to this Court within 42 days of the release of this opinion.

REVERSED AND REMANDED.

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

      . After the State’s opening statement, the trial court transferred the charge of contributing to the delinquency of a minor to the Baldwin Juvenile Court. That charge is not before us on this appeal.

      . The trial court, rather than let the indictments stand as pertaining to each piece of obscene matter, decided that the correct unit of prosecution was each individual computer file, even though each file may have contained multiple images, presumedly because each file was created, downloaded, or received via e-mail on a separate day. However, the statute does not proscribe the act of downloading obscene material or the act of receiving obscene material or the act of creating files of obscene material. The statute proscribes the act of possessing any obscene material.


author: HARWOOD, Justice.

text:
    Ex parte State of Alabama. (In re David A. GIRARD v. STATE of Alabama).
    1020889.
    Supreme Court of Alabama.
    Dec. 30, 2003.

      William H. Pryor, Jr., atty. gen., and Robin Blevins Scales and G. Ward Beeson III, asst, attys. gen., for petitioner.
   HARWOOD, Justice.

David A. Girard was indicted on May 23, 2001, for 26 counts of possessing obscene matter, violations of § 13A-12-192(b), Ala. Code 1975, and one count of contributing to the delinquency of a minor, a violation of § 12-15-13, Ala.Code 1975. Girard’s trial began on October 10, 2001. After the State had presented its case-in-chief, the trial court granted Girard’s motion for a judgment of acquittal on counts 2 through 6, 14, and 17 through 26, leaving pending 10 counts of possession of obscene matter. On October 11, 2001, the jury found Girard guilty of all 10 counts. On November 14, 2001, the trial court sentenced Girard to 10 years in prison on each count, but “split” the sentence and ordered Girard to serve 3 years in prison followed by 5 years on probation. The trial court ordered that Girard’s sentences were to run concurrently.

Girard appealed to the Court of Criminal Appeals. That court reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the convictions and sentences. Girard v. State, 883 So.2d 714 (Ala.Crim.App.2002). The State filed an application for a rehearing on December 6, 2002, and the Court of Criminal Appeals denied rehearing on February 14, 2003. The State then petitioned this Court for a writ of certiorari to the Court of Criminal Appeals. We granted the State’s petition to address what constitutes a “unit of prosecution” under Ala.Code 1975, § 13A-12-192(b), the statute barring the possession of “any obscene matter containing a visual reproduction of a person under the age of 17 years,” an issue we have not previously specifically addressed.

The interpretation of a statute involves a question of law and an appellate court reviews a trial court’s interpretation de novo, without any presumption of correctness. Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197 (Ala.2001). “ ‘[0]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court’s review is de novo.’ Ex parte Graham, 702 So.2d 1215, 1221 (Ala.1997).” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999).

The Court of Criminal Appeals set out the following summary of the pertinent facts:

“The facts adduced at trial indicate that a search of Girard’s home, including his personal computer, yielded numerous downloaded images and videos of underage boys. The images were found on a disc in Girard’s computer and on the hard drive on his computer. The files dated from April 3, 1998, and were, for the most part, downloaded on different days. Some files contained multiple images.”

883 So.2d at 714-15.

The record reveals that Girard met a young male (“C.L.”) in an Internet chat room in May 2000. C.L., who was 18 years old at the time of the trial in May 2002, testified that “a couple of times” Girard sent him “pictures of nude kids.” C.L. testified that he subsequently visited Girard and that he “brought discs that contained pictures of what [Girard] had sent to me.” Soon after C.L. left his home to visit Girard, his parents filed a missing person’s report, and Brian Middleton, a police investigator, testified that the report stated “that [C.L.] was possibly with Mr. Girard.” C.L. testified that after he learned that his parents had filed a missing person’s report, he went to the police station because he “wanted to clear up the missing person’s report.” Middleton testified that while C.L. was at the police station, he “indicated to me that he was in possession of the disc that he admitted to be child pornography.” Middleton stated that C.L. did not have the discs with him at the police station, rather “[t]hey were in Mr. Girard’s possession.” Thereafter, Middleton obtained a warrant to search Girard’s house.

In its order reversing the judgment of the trial court, the Court of Criminal Appeals stated, in relevant part:

“Girard advances only one argument on appeal. He argues that the trial court erred to reversal when it denied his motion to strike counts 2 through 26 as extraneous.
“The statute under which Girard was indicted for 26 violations reads, in pertinent part, as follows:
“ ‘Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.’
“ § 13A-12-192(b), Ala.Code 1975.
“This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Rather, this is a case where Girard’s conduct has yielded an indictment in which the possession of each file of obscene material has been charged as a separate crime under the same statute. The pertinent inquiry in deciding whether this is acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
“ ‘ “A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.” Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Such question of double jeopardy is determined by the following principles:
“ ‘ “It has been aptly noted that ‘the Blockburger [v. United States, 284 U.S. 299 (1932),] test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.’ Rashad v. Burt, 108 F.3d 677 (6th Cir.1997). This is because when ‘a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.’ State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). The ‘appropriate inquiry’ in such a case ‘asks what “unit of prosecution” was intended by the Legislature as the punishable act.... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.’ Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).”
“ ‘4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed.1999). See also Project, “Twenty-Ninth Annual Review of Criminal Procedure,” 88 Geo. L.J. 879, 1293 (2000) (“when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown”).’

“Townsend v. State, 823 So.2d 717, 722 (Ala.Crim.App.2001) (footnote omitted).

“The Court of Criminal Appeals has addressed Girard’s argument regarding multiple prosecutions one time and then only in dicta. In Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989), the defendant was indicted for four counts of possession of obscene material, violations of § 13A-12-192(b), Ala.Code 1975. Harris filed a ‘motion to dismiss the indictment as being multiplicitous, or in the alternative, motion to compel an election by the State as to the count it intends to prosecute.’ 563 So.2d at 9. The trial court denied the motion, and Harris subsequently pleaded guilty and received concurrent sentences of five years in prison. The Court of Criminal Appeals held that Harris had waived this argument by pleading guilty subsequent to the denial of his motion, but continued:

“ ‘Harris was charged in a four-count indictment with four separate violations of § 13A-12-192(b). Count one alleged the possession of a pornographic magazine. Counts two, three, and four each involved the possession of a different video cassette tape. Harris contends that he should have been convicted and sentenced for only-one offense, because the magazine and cassette tapes were seized from his residence on the same occasion. We recognize that this argument may have considerable merit. See United States v. Meyer, 602 F.Supp. 1480, 1480-81 (S.D.Cal.1985) (the appropriate unit of prosecution for offenses of transportation of material involving sexual exploitation of children and importation of obscene material, arising from defendant’s transporting several photographs in one binder, was one count for each offense, rather than one count for each photograph for each offense); Braunstein v. Frawley, 64 A.D.2d 772, 407 N.Y.S.2d 250, 253 (1978) (“[t]he promotion or possession of more than one item at the same time and on the same date constitutes one crime, and cannot be split into as many crimes as there are items”); State v. Smith, 323 N.C. 439, 373 S.E.2d 435, 438 (1988) (“[o]ther courts have similarly held that a single transaction involving obscene materials constitutes but one offense”). See also United States v. Kinsley, 518 F.2d 665 (8th Cir.1975) (possession of firearms); Vogel v. State, 426 So.2d 863, 878-82 (Ala.Cr.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983) (possession of drugs); Owens, Alabama’s Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 105-06 (1985) (discussed in McKinney v. State, 511 So.2d 220 (Ala.1987)). However, this issue has not been preserved for review.’
563 So.2d at 10.
“The act rendered illegal by the statute — the possession of any obscene matter, even if the possession is of multiple pieces of obscene matter — is simultaneous and inseparable, more like the simultaneous, single act of transportation or importation of multiple pieces of obscene matter, see United States v. Meyer, 602 F.Supp. 1480 (S.D.Cal.1985), than the separate transactions involved in the distribution of multiple pieces of obscene matter, see King v. State, 674 So.2d 1381 (Ala.Crim.App.1995). Thus the unit of prosecution is the simultaneous possession of a collection of obscene material; in this case, there was but one possession.

883 So.2d at 715-17.

In its brief filed in support of its petition for the writ of certiorari, the State argues that “[t]he plain language of Alabama’s statute prohibiting the possession of child pornography indicates that the unit of prosecution is each obscene image possessed by the defendant.” The State explains in its brief:

“[T]he Alabama Legislature has in plain language prohibited possession of obscene ‘matter’ depicting children under 17 in sexual poses. The Legislature has defined ‘matter’ in units that vary in scope from a single image (a ‘picture’ or ‘photograph’) to a collection of images in a single storage medium (a ‘book’ or ‘magazine’). The statute also defines an ‘electrical or electronic reproduction’ in the singular as ‘matter’ whose possession is wrongful. The statute does not identify any computer storage devices that might contain multiple images, such as a CD-ROM or a hard disk drive, as ‘matter.’
“The Court of Criminal Appeals’ ruling that Girard’s entire computer collection of child pornography should be treated as a single unit thus flies in the face of the plain language of the statute. The closest analogy in the statute to the ‘matter’ that Girard possessed is an ‘electronic reproduction’ in the singular. Indeed, the Court of Criminal Appeals has already held that an ‘electrical or electronic reproduction’ includes a computer-based image. Rutledge v. State, 745 So.2d 912, 917 (Ala.Crim.App.1999). The most natural reading of the statute, therefore, is that the State was entitled to prosecute Girard for each computer-based image of child pornography that he possessed, whether stored on one or multiple media.”

The State cites King v. State, 674 So.2d 1381 (Ala.Crim.App.1995), in support of its argument. In King, the Court of Criminal Appeals held that § 13A-12-200.2(1), Ala. Code 1975, part of the Alabama Anti-Obscenity Enforcement Act, authorizes the prosecution of each distributed item that qualifies as obscene material pursuant to the statute. The court explained that “[e]very item listed” in the statute’s definition of “material” “is singular” and that “[i]f the legislature intended for violations based on transactions instead of individual items distributed, it could have indicated that each item ... could also be plural.” 674 So.2d at 1383. The State argues in its brief that “[t]he court based its holding on its interpretation of the term ‘material’ in Ala.Code [1975,] § 13A-12-200.1(2), which is analogous to the term ‘matter’ in the child pornography statute in Ala.Code [1975,] § 13A-12-190(12).” Section 13A-12-190(12) defines “matter” as:

“Any book, magazine, newspaper, or other printed material, or any picture, photograph, motion picture or electrical or electronic reproduction, or any other articles or materials that either are or contain a photographic or other visual reproduction of a live act, performance, or event.”

As opposed to the definition of material found at § 13A-12-200.1(15), Ala.Code 1975, and discussed in King, supra, the definition of matter at § 13A-12-190(12), Ala.Code 1975, does include the plural of some terms. Also the statute at issue in this petition, § 13A-12-192, criminalizes the possession of obscene matter, while the statute at issue in King, § 13A-12-200.2, criminalized the distribution of obscene material.

Further, other statutes that address the crime of possession criminalize the act of possession, regardless of how many items the offender actually possessed. For example, § 13A-7-8, Ala.Code 1975, provides:

“(a) A person commits the crime of possession of burglar’s tools if he:
“(1) Possesses any explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and
“(2) Intends to use the thing possessed in the commission of an offense of the nature described in subdivision (a)(1) of this section.”

(Emphasis supplied.) Section 13A-7-44, Ala.Code 1975, addresses the criminal possession of explosives and provides:

“(a) A person commits the crime of criminal possession of explosives if he possesses, manufactures, buys, sells or transports any explosive, and intends that the explosive be used in the commission of a crime involving violence to another person or destruction of another’s property.”

(Emphasis supplied.) Similarly, § 13A-7-28, Ala.Code 1975, addresses the criminal possession of noxious substances and states:

“(a) A person commits the crime of criminal possession of noxious substances if he possesses, manufactures or transports any stink bomb or device, irritant, offensive-smelling or injurious substance, and intends that the injurious article or substance be used in the commission of any crime.”

(Emphasis supplied.)

These statutes use language similar to that of § 13A-12-192(b), Ala.Code 1975, which provides:

“(b) Any person who knowingly possesses any obscene matter containing a visual reproduction of a person under the age of 17 years engaged in any act of sado-masochistic abuse, sexual intercourse, sexual excitement, masturbation, genital nudity, or other sexual conduct shall be guilty of a Class C felony.”

(Emphasis supplied.)

Correspondingly, in McKinney v. State, 511 So.2d 220, 224 (Ala.1987), this Court explained that “legislative intent to allow multiple prosecutions for a single act that injures more than one person is determined by the ‘description of the unit of prosecution within the substantive criminal law statutes.’ ” (Quoting R. Owens, Alabama’s Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 104 (1985-86).) This Court then quoted the following from Owens:

“ ‘How, then, should the unit of prosecution be described so that an intent to allow multiple convictions is clear and unequivocal? Instead of using the word “any” to describe the unit of prosecution, the singular words “a” or “another” should be used. An examination, then, should be made of the Alabama Criminal Code to see how the unit of prosecution is described. This examination will disclose whether the code allows multiple convictions.
“ ‘A review of the criminal code discloses that there are basically four categories into which the statutes can be divided.... The second category contains statutes in which the unit of prosecution is described with the word “any”; based on the above mode of statutory construction, only one conviction should be allowed.’ ”

511 So.2d at 224-25 (quoting Owens, 16 Cum.L.Rev. at 105-06).

Accordingly, we conclude that proper unit of prosecution for the offense of possession of obscene matter under § 13A-12-192(b), Ala.Code 1975, is the possession of the obscene matter, regardless of how many items are actually possessed.

Therefore, the Court of Criminal Appeals correctly reversed the judgment of the trial court and remanded the cause for the trial court to vacate all but one of the conyictions and sentences. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

      . The trial court transferred the charge of contributing to the delinquency of a minor to the Baldwin juvenile Court after the State's opening statement. That charge was not considered further in the proceedings that gave rise to this petition.

      "2 The trial court, rather than let the indictments stand as pertaining to each piece of obscene matter, decided that the correct unit of prosecution was each individual computer file, even though each file may have contained multiple images, presumedly because each file was created, downloaded, or received via e-mail on a separate day. However, the statute does not proscribe the act of downloading obscene material or the act of receiving obscene material or the act of creating files of obscene material. The statute proscribes the act of possessing any obscene material.”

      2. That definition now appears at § 13A-12-200.1(15), Ala.Code 1975.

      . Section 13A-12-200.1(15), Ala.Code 1975, defines "material'' as:
      "Any book, magazine, newspaper, printed or written matter, writing, description, picture, drawing, animation, photograph, motion picture, film, video tape, pictorial representation, depiction, image, electrical or electronic reproduction, broadcast, transmission, telephone communication, sound recording, article, device, equipment, matter, oral communication, live performance, or dance.”


author: SHAW, Judge.

text:
    John Stephen BRACKNELL v. STATE of Alabama.
    CR-02-0093.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Rehearing Applications Denied June 13, 2003.

      Thomas M'. Goggans, Montgomery, for appellant.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

John Stephen Bracknell appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his convictions in 2000 for two counts of sodomy in the first degree and six counts of sexual abuse in the first degree. He was sentenced to 25 years’ imprisonment for each of the sodomy convictions and to 10 years’ imprisonment for each of the sexual-abuse convictions; those sentences were to run concurrently. This Court affirmed Brack-nell’s convictions and sentences on direct appeal in an unpublished memorandum issued on February 23, 2001. See Bracknell v. State (No. CR-99-1875), 821 So.2d 1032 (Ala.Crim.App.2001)(table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on July 6, 2001.

Bracknell filed the present petition on July 10, 2002. In his petition, Bracknell alleged that his trial and appellate counsel were ineffective for various reasons. After receiving a response from the State, the circuit court summarily denied Bracknell’s petition on September 23, 2002.

I.

Bracknell contends that his appellate counsel was ineffective for not raising claims of ineffective assistance of trial counsel in a motion for a new trial and then on appeal.

Bracknell was convicted on May 4, 2000; he was sentenced on June 8, 2000. On June 22, 2000, Bracknell contacted Lindsay Davis to discuss the possibility of Davis’s representing him on appeal. In a letter sent to Bracknell following the meeting, Davis advised Bracknell that she was willing to represent him on appeal, but that she would not pursue any claims of ineffective assistance of trial counsel. She also advised Bracknell that if he wished to pursue claims of ineffective assistance of trial counsel, he should retain other counsel to represent him on appeal. On June 30, 2002, Bracknell signed a written employment agreement in which he agreed that Davis would not raise any claims of ineffective assistance of trial counsel in a motion for a new trial or on direct appeal. Davis then filed a motion for a new trial on Bracknell’s behalf; the motion did not include any claims of ineffective assistance of trial counsel.

After expressly agreeing that appellate counsel would not raise any claims of ineffective assistance of trial counsel in a motion for a new trial and on appeal, Brack-nell cannot now complain that his appellate counsel was ineffective for not doing so. Therefore, the circuit court properly denied Bracknell’s ineffective-assistance-of-appellate-counsel claim.

II.

Bracknell also contends that his trial counsel was ineffective for various reasons.

Initially, we note that these claims are not precluded by Rules 32.2(a)(3) and (a)(5), Ala.R.Crim.P., despite the employment agreement in which Bracknell agreed that Davis would not raise any ineffective-assistance-of-trial-counsel claims in a motion for a new trial and on direct appeal. The record from Bracknell’s direct appeal reflects that the trial transcript was not prepared until over four months after Bracknell had been sentenced. Although ineffective-assistance-of-trial-counsel claims cannot be raised for the first time in a Rule 32 petition if they could have reasonably been raised in a timely filed motion for a new trial, in V.R. v. State, 852 So.2d 194 (Ala.Crim.App.2002)(opinion on rehearing), this Court unanimously held:

“[A] defendant is not precluded by Rules 32.2(a)(3) and (5) from raising an ineffective-assistance-of-trial-counsel claim for the first time in a Rule 32 petition if the trial transcript was not prepared in time for appellate counsel to have reviewed the transcript to ascertain whether such a claim was viable and to present the claim in a timely filed motion for a new trial. It is neither reasonable nor practical to expect newly appointed appellate counsel to raise an ineffective-assistance-of-trial-counsel claim without the benefit of a trial transcript to document and support a defendant’s allegations as to what occurred during trial.”

852 So.2d at 202-03 (emphasis added). The language used in V.R. was clear and not limited to the particular facts of that case. As a matter of law, it is not reasonable for appellate counsel to file a motion for a new trial raising ineffective-assistance-of-trial-counsel claims without the benefit of the trial transcript. To hold otherwise would encourage the filing of motions for a new trial based solely on a defendant’s bare and self-serving allegations that may or may not be supported by facts reflected in the trial transcript. Appellate counsel cannot make an informed decision about the merits of possible ineffective-assistance-of-trial-counsel claims without knowing what actually occurred during trial, and this Court will not encourage the filing of motions that may turn out to be frivolous because they are not based on fact, but, rather, on a defendant’s self-serving allegations.

Therefore, based on this Court’s holding in V.R., Bracknell, as a matter of law, “is not precluded by Rule 32.2(a)(3) and (5) from raising an ineffective-assistance-of-trial-counsel claim for the first time in a Rule 32 petition.” V.R., 852 So.2d at 202. Although Bracknell and Davis discussed the possibility of raising ineffective-assistance-of-trial-counsel claims, at least to the extent that they agreed that no such claims would be raised, newly retained appellate counsel could not have reasonably raised claims of ineffective assistance of trial counsel in a timely filed motion for a new trial because the trial transcript was not prepared in time for her to make an informed decision as to the merit of any such claims.

Although Bracknell’s claims of ineffective assistance of trial counsel are not precluded, after carefully reviewing Brack-nell’s petition, we conclude that he failed to plead sufficient facts with respect to any of the claims to warrant any further proceedings.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To prove prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

Rule 32.3, Ala.R.Crim.P., states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b), Ala.R.Crim.P., states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”

“An evidentiary hearing on a [Rule 32] petition is required only if the petition is ‘meritorious on its face.’ Ex parte Boatwright, 471 So.2d 1257 (Ala.1985). A petition is ‘meritorious on its face’ only if it contains a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the facts relied upon (as opposed to a general statement concerning the nature and effect of those facts) sufficient to show that the petitioner is entitled to relief if those facts are true. Ex parte Boatwright, supra; Ex parte Clisby, 501 So.2d 483 (Ala.1986).”

Moore v. State, 502 So.2d 819, 820 (Ala.1986).

Although Bracknell specifically identified the acts or omissions on the part of his trial counsel that he believed constituted deficient performance, he failed to include in his petition any facts tending to indicate how those acts or omissions prejudiced his defense. He did not include specific facts regarding the crimes or the evidence introduced at trial, and he did not even state in his petition what his defense was. Even accepting all of the allegations in his petition as true, we cannot say whether Brack-nell is entitled to relief. Therefore, Brack-nell has not provided “full disclosure of the factual basis” of his. claims necessary to satisfy the specificity requirements of Rule 32.6(b), Ala.R.Crim.P., and the pleading requirements of Rule 32.3, Ala.R.Crim.P. Accordingly, the circuit court properly denied his claims of ineffective assistance of trial counsel without an evidentiary hearing.

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

AFFIRMED.

McMILLAN, PM., and COBB, J., concur. BASCHAB and WISE, JJ., concur in the result.

      . In this case, it is clear that appellate counsel’s decision not to raise any claims of ineffective assistance of trial counsel was not based on a decision as to the relative merit of any specific claims. Rather, it was based on her friendship with and her respect for Brack-nell's trial counsel. In her letter to Bracknell, Davis said that she would not raise claims of ineffective assistance of trial counsel because Bracknell's trial counsel was "a personal friend of the firm” and because, according to Davis, trial counsel " 'wrote the book’ on representation of persons charged in sexual molestation cases of minors.” (C. 32.)

      . Although this was not the reason for the circuit court’s summary denial of Bracknell’s claims, this Court will affirm a circuit court’s judgment summarily denying a Rule 32 petition if it is correct for any reason. See, e.g., Long v. State, 675 So.2d 532, 533 (Ala.Crim.App.1996).


author: SEE, Justice. JOHNSTONE, Justice

text:
    Ex parte John Stephen BRACKNELL. (In re John Stephen Bracknell v. State of Alabama).
    1021724.
    Supreme Court of Alabama.
    Dec. 30, 2003.
    Thomas M. Goggans, Montgomery, for petitioner.
   SEE, Justice.

WRIT DENIED; NO OPINION.

HOUSTON, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE and WOODALL, JJ., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for the writ of certiorari. The Court of Criminal Appeals affirmed the denial of the defendant’s Rule 32, Ala. R.Crim. P., petition, without a hearing, on the rationale that the petition was insufficiently pleaded. Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003). But the facts properly included in the certiorari petition before us make a showing that the Rule 32 petition was sufficiently pleaded.

The defendant was convicted of sodomy and sexual abuse. After he lost his direct appeal, he filed a Rule 32 petition claiming that his trial counsel was ineffective. According to pages 3 and 4 of the certiorari petition before us, the Rule 32 petition included these allegations:

“5. Bracknell’s accuser testified that he had inserted his fingers into her vagina ‘a lot.’ She otherwise indicated that he had abused her in such a fashion as would leave physical signs of sexual abuse. However, a medical examination revealed: ‘The hymenal ring appears normal and is not irregular. Patient does not use tampons. I was able to put the very smallest pediatric speculum inside the vagina but it did cause her some discomfort.’ This directly contradicted the accuser’s testimony. Evidence of this was available and could have been used by the defense at trial. Trial counsel was aware or, with proper investigation, should have been aware[,] of the results of this medical examination. However, he failed to use it. This failure was particularly prejudicial because this evidence directly contradicted the testimony of Bracknell’s accuser on a critical point. See, Holsomback v. White, 133 F.3d 1382 (11th Cir.1998) (counsel ineffective in not investigating and utilizing medical evidence to rebut testimony of complaining witness in sexual abuse case).
“6. Bracknell’s accuser testified that on or about October 25, 1995 he made her stay home from school and had abused her on that date. However, her school records indicated no absences for date. Evidence of this was available and could have been used by the defense at trial. Trial counsel was aware or, with proper investigation, should have been aware of this. But, he did not put on evidence directly contradicted the testimony of Bracknell’s accuser on a critical point.
“7. Bracknell testified that on dates in question in the case, he was working out of state. Receipts corroborated this testimony. Evidence of this was available and could have been used by the defense at trial. Trial counsel knew or, with proper investigation, should have known of this. But, he did not elicit such evidence. This failure was particularly prejudicial because this evidencfe documented Bracknell’s denial of the accusations against him and contradicted the testimony of Bracknell’s accuser.”

In and of themselves, these allegations show that, if they be proved to be true, trial counsel’s performance was deficient and “there is a reasonable probability that, but for [trial] counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This certiorari petition shows a probability of merit in the defendant-petitioner’s contention that he was due a hearing on his Rule 32 petition. Thus, I respectfully submit that we should grant this petition and examine the record.

WOODALL, J., concurs.


text:
    Claude Lee RAGLAND v. STATE.
    CR-02-0928.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Claude Lee Ragland, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   COBB, Judge.

Claude Lee Ragland appeals from the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition filed on May 31, 2002. The petition sought posNconviction relief from his December 10, 1999, conviction for distribution of a controlled substance and from his resulting 26-year sentence. Ragland’s conviction was obtained pursuant to a guilty plea. He was sentenced on January 26, 2001. Ragland’s sentence comprises a base sentence of 16 years and two 5-year enhancements that were added to the base sentence pursuant to § 13A-12-250 and § 13A-12-270, Ala.Code 1975. On direct appeal, this Court affirmed his conviction and sentence. Ragland v. State, 825 So.2d 881 (Ala.Crim.App.2001). The certificate of judgment was issued on January 25, 2002. Ragland’s petition was timely filed May 31, 2002. The circuit court summarily dismissed the petition as being insufficiently pleaded without obtaining a response from the State.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

Ragland has sufficiently pleaded at least one claim entitling him to relief. Thus, an effort to decipher all of the claims he attempted to raise in his petition is unnecessary. Ragland claims in his petition and on appeal 1) that his guilty-plea was involuntary because, although he was informed of the possible range of sentence, he was not informed at his guilty plea proceedings that his sentence would be enhanced 10 years pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975; and 2) that trial counsel was ineffective for failing to inform Ragland that his sentence would be enhanced under §§ 13A-12-250 and 13A-12-270, Ala.Code 1975.

This Court can take judicial notice of its own records. Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987). The record from Ragland’s direct appeal confirms Ragland’s assertion that he was not informed that his sentence would include the sentence enhancements found in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. The record from his guilty-plea colloquy on direct appeal discloses that the trial court told Ragland that because Rag-land had two prior felony convictions, the minimum possible sentence that he could receive after a conviction for distribution of a controlled substance was 15 years and that the maximum sentence he could receive was 99 years to life. No mention of the application of the enhancements found in §§ 13A-12-250 and 13A-12-270, Ala. Code 1975, can be found in the record of the direct appeal until sentencing. At sentencing, the trial court expressed its displeasure with Ragland for failing to appear at his two previously scheduled sentencing hearings. The trial court then stated that because of Ragland’s failure to appear, the court “wouldn’t be bound by that agreement that your attorney had reached” (record on direct appeal at R. 8.), and instead of sentencing Ragland to 15 years in prison pursuant to the agreement, the trial court was increasing Ragland’s sentence from 15 years to 16 years in prison. After pronouncing Ragland’s sentence to be 16 years, the trial court stated, for what the record discloses to be the first time, “[t]here’s an additional punishment under section 13A-12-250 ... [and] under section 13A-12-270.” Pursuant to these statutes, the trial court added 10 years to Ragland’s 16-year sentence.

“It is well settled that ‘claims challenging the voluntariness of a guilty plea, as well as claims alleging ineffective assistance of trial counsel, may be raised for the first time in a timely filed Rule 32 petition.’ George v. State, 774 So.2d 608, 609 (Ala.Crim.App.2000). See also Ex parte Ingram, 675 So.2d 863 (Ala.1996); Baker v. State, 717 So.2d 859 (Ala.Crim.App.1996); and Cantu v. State, 660 So.2d 1026 (Ala.1994).”

Smith v. State, 852 So.2d 185, 188 (Ala.Crim.App.2001).

“ “When an accused is not informed that § 13A-12-250 [or § 13A-12-270] will be applied in the accused’s case ... then the accused has not been informed of the true and correct terms of the sentence ... and it cannot be said that his plea was “knowingly given.” ’ Pope v. State, 681 So.2d 1098, 1099 (Ala.Crim.App.1995). See also Cummings v. State, 642 So.2d 489 (Ala.Crim.App.1992). In addition, ‘a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.’ Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999). See also Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001); and Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992).”

Smith v. State, 852 So.2d at 188.

The circuit erred in denying Ragland relief on the above claim presented in his Rule 32, Ala. R.Crim. P., petition. This cause is therefore remanded to the trial court with directions to allow Ragland to withdraw his guilty plea on the grounds that his plea was not knowingly and voluntarily entered, and, if Ragland so wishes, to allow him the opportunity to enter another plea after he has been fully and correctly informed about the range of sentence. If at that time Ragland declines to plead guilty, “the charges against the defendant as they existed before any amendment, reduction, or dismissal made as part of a plea agreement shall be reinstated automatically.” Rule 14.4(e), Ala. R.Crim. P. Due return shall be made to this Court within 60 days of the release of this opinion. As stated above, because we must remand this cause to the trial court, we pretermit any discussion of the remaining issues raised by Ragland on appeal.

REMANDED WITH DIRECTIONS.

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

      . The supplemental record contains a Rule 32, Ala. R.Crim. P., petition that was filed on March 19, 2002. This petition was docketed in the circuit court as CC-99-4206.60. This petition asserts as grounds for relief that the United States Constitution and the Alabama Constitution of 1901 require a new trial and that petitioner was denied effective assistance of counsel. No argument whatsoever was presented in support of these claims. The case action summary sheet reflects that on April 8, 2002, this petition was dismissed at Ragland's request. (Supp. Record at C. 4.) Thus, the instant petition appears to be Rag-land's first petition.

      . The record on direct appeal from his conviction reflects that sentencing was scheduled for January 28, 2000, but that Ragland did not appear. Sentencing was rescheduled for March 24, 2000, but Ragland again did not appear. An arrest warrant was issued and Ragland was committed to jail on December 28, 2000. The Court of Criminal Appeals can take judicial notice of its own records. Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987).

      .The record contains a written order dated January 13, 2003, in which the circuit court found that there was a “contradiction between [Ragland’s] statement of facts and his argument as set out for grounds for relief" and that the circuit court "does hereby deny the Rule 32 Petition as hereby filed by [Rag-land] for the grounds as set out in [Ragland's] statement of facts in his petition.” (C. 3.) The meaning of this order in not entirely clear; however, we take it to mean that the petition did not plead sufficient grounds for relief.

      . This is the first suggestion in the record on direct appeal that there had been an agreement with the State concerning sentencing. However, it is clear from other claims contained in Ragland's petition that he thought he had been assured that was going to receive a sentence of 15 years in prison if he entered a guilty plea. The trial court's comments certainly suggest that before the sentencing hearing there had been an understanding reached concerning the sentence to be imposed.


author: WISE, Judge.

text:
    Gary THORNTON v. STATE of Alabama.
    CR-02-0678.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 15, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1021998.
    Allen Kenneth Mitchell, Dothan, for appellant.

      William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   WISE, Judge.

The appellant, Gary Thornton, was convicted of third-degree burglary, a violation of § 13A-7-7, Ala.Code 1975. The trial court sentenced Thornton to 3 years’ imprisonment; that sentence was split and he was ordered to serve 30 days in jail and the remainder on probation. Thornton was also fined $500 and was ordered to pay a $500 assessment to the crime victims compensation fund. This appeal follows.

On appeal, Thornton contends that the trial court erred in denying his motion for a judgment of acquittal and his motion for a new trial because, he claims, the State failed to prove a prima facie case. Specifically, Thornton argues that the State failed to prove the criminal intent required to support his third-degree-burglary conviction.

It is well settled that “[a]ppellate courts are limited in reviewing a trial court’s denial of a motion for judgment of acquittal grounded on insufficiency.” McFarland v. State, 581 So.2d 1249, 1253 (Ala.Crim.App.1991). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978). The appellate court, in reviewing the denial of a judgment of acquittal, will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Crim.App.1983). In determining the sufficiency of the evidence to support the verdict of the jury and the judgment of the trial court, we view the evidence in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).

The evidence presented at trial shows the following. On October 13, 2000, Thornton, Mildred Sims, and Salafas Ivey were sent to Abbeville, Alabama, by Willie James Hayes, the owner of Global Enterprises, to perform lawn maintenance and cleaning duties at a house on which HUD had foreclosed. Global Enterprises, a cleaning business located in Marianna, Florida, did subcontracting work for Citi-west, an Atlanta-based company that had a contract with HUD to clean, manage, and market its foreclosed properties. Global Enterprises was issued a work order by Citiwest to perform yard maintenance and cleaning duties at a property listed as Route 3, Box 619, 436 Lakeview Drive, Abbeville, Alabama. Upon their arrival in Abbeville, Thornton, Sims, and Ivey, who were unfamiliar with the area, stopped a local police officer, Ronnie Moody, and asked him for directions to Lakeview Drive. Officer Moody informed the cleaning crew that he knew Lakeview Drive was in the Backwater area but he did not specifically know where Lakeview Drive was located. He directed them to the Backwater area and advised them to ask for further directions from that point. At trial, Officer Moody verified that he had been approached by the group and that he told them Lakeview Drive was located somewhere around the Backwater area. The cleaning crew then drove to the Backwater area and stopped at Mid-Lake Bait and Tackle, a fishing-supplies store, again asking for directions to 436 Lakeview Drive; unfortunately, the sales clerk did not know where that address was located.

The cleaning crew next stopped a mail carrier, Edward Golden, and asked him for directions. Sims, a codefendant, stated that Golden told her where Lakeview Drive was located and said that there was a HUD house at the end of Lakeview Drive. Golden testified that he informed the cleaning crew that 436 Lakeview Drive was not on his postal route and that he was not familiar with the address. He stated that he did inform them that there was a HUD house in Sunset Acres, but that that house was on the corner of Hill-crest and Laurel.

Thornton, Sims, and Ivey then drove to Sunset Acres, where Golden told them a HUD house was located; they spotted a house with overgrown grass and unkept hedges that appeared to have been abandoned. However, the house was not at the corner of Hillcrest and Laurel as the mail carrier had informed them; instead, it was on Lakeview Drive. There were no address numbers on the house, curb, or mailbox. According to Sims, she attempted to enter the front door with a key that Hayes provided, but was unable to open the door because a key had been broken off in the lock. Ivey entered the house through a window that was cracked open and noticed that the house was furnished. Fearing that they might be in the wrong house, Sims telephoned Hayes. After contacting Citiwest, Hayes determined that the group was at the right address and told Sims to begin the work. Thornton mowed the lawn and trimmed the hedges. The trio then began cleaning out the house, bagging up small items for disposal. During this time, they removed household cleaning items, linens, pots, pans and a videocassette recorder. Because the cleaning crew had no way of storing or transporting the remaining household contents, they returned to Marianna, Florida.

On October 20, 2000, Thornton, Sims, and Ivey returned to Abbeville with Hayes to finish cleaning out the house. In order to gain entry, Hayes broke a window and pried open the door. The group then loaded the contents of the house onto a Global Enterprises truck. The home belonged to Henry Hart; it was not the house on which HUD had foreclosed. Sims and Hayes testified that the group did not go to Hart’s home to burglarize it; rather, they mistakenly entered the wrong home pursuant to a work order from Citiwest to clean out a HUD foreclosure.

Citiwest employees Yolanda Sharpe, quality control manager, and Danny Till-ery, property inspector, presented testimony concerning their contract with HUD. Sharpe testified that Citiwest had won a contract with HUD to manage and market HUD foreclosures. She stated that Citi-west was responsible for cleaning out the property and preparing it for resale. Sharpe testified that Global Enterprises, a Citiwest subcontractor, was given a work order for the Abbeville property with instructions to clean everything out of the house and to maintain the lawn. Sharpe and Tillery testified that at the time of the incident, HUD policies allowed property managers/subcontractors to enter a foreclosed house in any manner necessary and that any items remaining in the house were to be removed because the items were considered abandoned property. Both stated that it was not uncommon for personal property, furniture, even vehicles, to be left behind when HUD foreclosed on a home. Sharpe testified that when a work order was issued to clean up a house, any items remaining in the home were considered debris, and the clean-up crew could do whatever they wanted with the items. Tillery testified that items left in the homes are to be removed during the cleanup and that the items can be hauled off, thrown away, or taken home with the cleaning crew. He also stated that there are incidences where inspectors, as well as clean-up crews, go to the wrong address.

The defense also presented testimony from Henry County engineer Chris Champion. Champion testified that in 2000 there were two Lakeview Drives located in Abbeville. One was located in the Sunset Acres subdivision and the other in the gated community of Riverview Forest. He stated, that based on county maps, the Lakeview Drive addresses in Sunset Acres ranged from 260 to 480 while the Lakeview Drive addresses in Riverview Forest went from 100 to 207.

Henry Hart, the victim, testified that he owns a lake house located at 480 Lakeview Drive. He stated that on October 18, 2000, he went by to check on the lake house after work. He immediately noticed that the lawn had been cut, the hedges had been trimmed, and several of the screens had been removed from the windows. Hart testified that he observed several marks by the door lock. When he entered the house he noticed that the cupboards were open and that a series of bags were filled with items from the cupboards. Hart determined that a number of kitchen items were missing from the cupboards. He returned to the house on October 20, 2000, to make an inventory of the missing items in order to file an insurance claim and police report. After preparing the list, Hart stated that he left the house and returned an hour later to find Thornton, Sims, Ivey, and Hayes removing the furniture from his home. He drove to a nearby store and notified the police, who arrived on the scene and arrested the group. During cross-examination, Hart stated that he was satisfied that Hayes owned Global Enterprises, that Global Enterprises was a subcontractor for Citiwest, that Citiwest hires individuals to clean out HUD housing, and that Hayes was in Henry County to clean out a HUD house. He further acknowledged that he and his wife had written a letter to Congressman Terry Everett complaining about the incident and the lack of HUD regulations; in the letter they stated that Thornton and his codefendants were “unfortunately at the wrong address.” (R. 99-100). The jury convicted Thornton on count I (the initial entry occurring on October 13, 2000) and acquitted him as to Count II (the October 20, 2000, entry).

Section 13A-7~7(a), Ala.Code 1975, sets out the elements of the offense of burglary in the third degree: “A person commits the crime of burglary in the third degree if he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” Thus, in order to convict Thornton on the burglary charge, the State had to prove that Thornton knowingly entered and unlawfully remained in a building with intent to commit a crime. In Ex parte Mitchell, 723 So.2d 14, 15 (Ala.1998), the Alabama Supreme Court held:

“Rule 20.1(a), Ala. R.Crim. P., requires that a motion for a judgment of acquittal be granted as to any offense ‘for which the evidence is insufficient to support a finding of guilty beyond a reasonable doubt.’ One commentator explains: ‘There must be substantial evidence tending to prove all the elements of the charge, and the burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it.’ H. Maddox, Alabama Rules of Criminal Procedure § 20.1, at 734 (2d ed. 1994).”

Having carefully considered the record, including the testimony, we conclude that the State failed to carry its burden to prove beyond a reasonable doubt that Thornton knowingly entered Hart’s house with the intent to commit a crime therein and that the trial court, therefore, erred in denying Thornton’s motion for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is reversed and a judgment is rendered for Thornton.

REVERSED AND JUDGMENT RENDERED.

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

      . Thornton was indicted on two counts of burglary in the third degree. His first trial ended in a hung jury and a mistrial was declared. At the conclusion of the second trial, the jury returned a verdict of guilty on count I of the indictment and not guilty on count II.

      . Testimony was presented to the effect that HUD has changed its policies as a result of this incident.


author: PER CURIAM.

text:
    Elizabeth Arm ALLEN v. STATE of Alabama.
    CR-02-1371.
    Court of Criminal Appeals of Alabama.
    Aug. 8, 2003.
    Rehearing Denied Oct. 17, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1030194.
    Derek Quinn, Birmingham, for appellant.
   PER CURIAM.

On January 27, 2003, the appellant, Elizabeth Ann Allen, pleaded guilty to possession of a controlled substance and was sentenced to two years in the penitentiary. She applied for probation, and the trial court set the matter for a hearing on March 21, 2003. On that same date the trial court denied Allen’s request for probation. On April 15, 2003, Allen filed a notice of appeal. The notice of appeal was filed more than 42 days after the date of Allen’s sentencing, and our records showed that no postjudgment motions had been filed; therefore, we issued an order directing Allen to show cause why the appeal should not be dismissed. The case is before this Court on Allen’s response to our order.

Allen argues that the time for filing the notice of appeal in her case cannot be measured from January 27, 2003, the date of her sentencing, because her sentence was suspended on that date pending the preparation of her probation report and her sentence was not final until the trial court officially denied her request for probation on March 21, 2003.

The transcript of the guilty plea hearing reflects the following:

“The Court: Based upon your plea of guilty, I do find that you are guilty. Do you have anything to say before the sentence of law is pronounced against you in this case?
“The Defendant: No, sir.
“The Court: I hereby sentence you to serve two years in the state penitentiary. However, I note that you have applied for probation. And I am setting your probation hearing for March 21, 2003, at 9:00 o’clock a.m. You should contact the probation office and continue going to TASC [treatment alternatives to street crimes programs] until that time.
“In accordance with the plea agreement, I’m hereby dismissing CC-02-3445 upon the recommendation of the [district attorney]. Is there anything else?
“The Defendant: No, sir.
“The Court: [Defense counsel,] you know she’s going to have a $100 fine to the Alabama Forensic Scientist Trust Fund and a $1,000 fine pursuant to the Drug Demand Reduction Act?”

(R. 8.)

Rule 4(b)(1), Ala.R.App.P., states, in part:

“In a criminal case a notice of appeal by the defendant shall be filed with the clerk of the trial court within 42 days (6 weeks) after pronouncement of the sentence, provided that the notice of appeal may be oral, as provided in Rule 3(a)(2). ■A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after pronouncement of the sentence and on the day thereof. If a motion in arrest of judgment, motion for new trial, or motion for judgment of acquittal has been filed within 30 days from pronouncement of the sentence, an appeal may be taken within 12 days (6 weeks) after the denial or overruling of the motion.”

(Emphasis added.)

According to Rule 4(b), Ala.R.Crim.P., a notice of appeal in a criminal case must be filed within 42 days from the date of sentencing or within 42 days from the denial or denial by operation of law of a motion in arrest of judgment, a motion for a new trial, or a motion for a judgment of acquittal.

Here, the record shows that Allen was sentenced on January 27, 2003, and that she applied for probation. Allen’s notice of appeal was not filed until April 15, 2003. A request for probation is not the equivalent of the motions recognized in Rule 4, Ala.R.App.P., as tolling the time for filing a notice of appeal. This very issue was addressed by the Alabama Supreme Court in Woods v. State, 371 So.2d 944 (Ala.1979). The Court in Woods stated:

“Although Rule 4(b) provides that a ‘timely motion in arrest of judgment or for a new trial’ will toll the running of the appeal period, no such motion was made in this case. A request for probation following sentencing does not extend the time for appeal from a judgment of conviction. Turner v. State, 365 So.2d 335 (Ala.Cr.App.1978).
“Timely filing of notice of appeal is a jurisdictional requisite, and the appeal must be dismissed for lack of jurisdiction if notice of appeal was not timely filed. [Ala.RJVpp.PJ 2(a)....
“Petitioner contends that this case is distinguishable from Turner v. State, supra, since here the trial court suspended the sentence until receipt of the post-sentence investigation report from the probation officer. Petitioner argues that since the sentence was temporarily suspended, it was temporarily inoperative and was not sufficient to support an appeal until the trial court allowed execution of the sentence. We disagree.
“Rule 4(b) expressly provides that entry of sentence is the event which triggers the running of the time in which to take an appeal. No provision is made for tolling of the period when execution of the sentence is suspended. Although a sentence may ultimately be suspended due to the granting of probation, the entry of sentence marks the termination of the legal proceedings against the defendant so that errors allegedly committed during the course of the proceedings may be presented for appellant review. The mere fact of temporary suspension of the sentence pending receipt of a probation report does not alter the ap-pealable posture of the case.”

371 So.2d at 945-46. “A request for probation following sentencing does not extend the time for appeal from a judgment of conviction.” Turner v. State, 365 So.2d 335, 335 (Ala.Crim.App.1978). See also Martinez v. State, 602 So.2d 504 (Ala.Crim.App.1992); State v. Reiner, 530 So.2d 903 (Ala.Crim.App.1988); State v. Fain, 484 So.2d 558 (Ala.Crim.App.1986); and Yearby v. State, 451 So.2d 425 (Ala.Crim.App.1984).

Allen also asserts that her attorney and the trial court operated in good faith under the assumption that the appeal was timely filed; therefore, she argues, we should allow this appeal to proceed. This Court, however, has no authority to suspend or extend the time for filing notice of appeal. As Rule 2(b), Ala.R.App.P., states, in part:

“In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements of provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, an appellate court may not extend the time for taking an appeal, as provided in Rule b (a)(1) ...”

(Emphasis added.)

Allen’s notice of appeal was not timely filed. We have no jurisdiction to consider this appeal. For the foregoing reasons, this appeal is due to be, and is hereby, dismissed. Allen’s remedy, if any, is to file a petition for posteonvietion relief pursuant to Rule 32.1(f), Ala.R.Crim.P.

APPEAL DISMISSED.

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

      . The record shows that on March 21, 2003, Allen made an oral motion to withdraw her January 27, 2003, guilty plea; however, this motion, filed more than 30 days after the, date that sentence was pronounced against Allen, was untimely. See Rule 24.1, Ala.R.Crim.P.; Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997) (a motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial). Also, the motion was made orally and was not "filed” with the trial court. See our recent holding in Ingram v. State, 882 So.2d 374 (Ala.Crim.App.2003), discussing the term "filed” as that term is used in Rule 26.9(b)(4)(h), Ala.R.Crim.P.