source: Caselaw Access Project

author: YATES, Presiding Judge. MURDOCK, Judge,

license: Public Domain

text:
    Terry HUTCHINSON v. Rita HUTCHINSON.
    2001214.
    Court of Civil Appeals of Alabama.
    March 22, 2002.
    Rehearing Denied May 24, 2002.
    Connie Cooper, Phenix City, for appellant.
    Mark S. Carter, Phenix City, for appel-lee.
   YATES, Presiding Judge.

Rita Hutchinson sued Terry Hutchinson on February 8, 2001, seeking a divorce and alleging incompatibility of temperament and adultery; the parties were married in July 1975. Their two children had reached the age of majority. The wife sought a division of the marital assets and alimony. On March 20, 2001, the husband counterclaimed for a divorce, alleging a complete and irrevocable incompatibility of temperament.

After conducting an ore tenus proceeding, the court, on June 18, 2001, entered a judgment of divorce. The judgment read, in part:

“3. That the [wife] is awarded the marital home ... and shall assume the indebtedness owed on the second mortgage on same.
“4. That the [husband] shall pay to the [wife] the sum of $700.00 per month as periodic alimony. In addition thereto, the [husband] shall pay to the [wife] the sum equivalent to the first mortgage payment on the marital home until such time as said first mortgage is paid in full at which time total periodic alimony to be paid to the plaintiff shall be $700.00 per month.
“5. That the [husband] is ordered to replace the roof on the marital home with a new roof and to repair the septic system.
“10. That the [wife] is awarded one third (1/3) of the [husband’s] retirement account.
“11. That the [husband] shall maintain a life insurance policy on his life in the amount of $150,000.00 with the ... children of the parties as the beneficiary and shall provide proof of same to the [wife].”

The husband appeals, contending that the trial court’s division of the marital assets was an abuse of discretion. We agree.

Under the “ore tenus rule” the trial court’s divorce judgment is presumed correct, and we will not disturb it on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala.Civ.App.1993). Furthermore, alimony and property-division matters rest within the trial court’s discretion, and such rulings on appeal will not be disturbed except for an abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994).

When determining an alimony award and dividing marital property, the trial court should consider the following factors: the earning abilities of the parties; the future prospects of the parties; their respective ages and health; the duration of the marriage; the parties’ station in life; the items of marital property and their sources, values, and types; and the conduct of the parties in relation to the marriage. Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). The division of marital property does not have to be equal, only equitable, and what constitutes an equitable division rests within the sound discretion of the trial court. Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986).

The wife testified that she was 46 years old at the time of the trial and that the parties had been married approximately 26 years and had two adult sons. She stated that their marital assets consisted of a home and 13 acres appraised at $132,000, with two mortgages on the property totaling $87,000; her retirement account in which there was $2,500; her husband’s retirement account in which there was $32,111; a joint family life insurance policy in the amount of $150,000; and two vehicles. She further testified that her monthly expenses totaled $2,348.48. She also testified that the roof of the marital home and the septic tank 'needed repair and that the estimated cost of those repairs was $3,176 and $2,300, respectively.

The wife testified that she had been employed throughout the marriage. She stated her earnings for the year 2000 were $20,529, and her husband’s were $33,459. She stated that he did some “side work” involving heating and air conditioning, but she did not know how much he made from that work.

The husband admitted that he had had an affair and he stated that he no longer loved his wife. He further testified that at the time of the hearing he was employed as a maintenance man for an apartment complex. He testified that he had been fired from his former job in the heating and air conditioning business for illegally connecting a telephone line. He testified that his current monthly income is $1,064, and his net pay is $782.91. He stated he could make more money in the heating and air conditioning business, but he had chosen not to do that kind of work “because after thirty years of doing heating and air, I’m kind of tired of crawling under houses and attics because of my knees and back.” He further stated he was no longer able to lift heavy equipment. He also testified that he was currently living with his mother.

The payments ordered to be made by the husband in the divorce judgment total $1,342.72 per month, with additional monies required to replace the roof and to repair the septic tank. The husband’s current gross monthly income of $1,064, with a net of $782.91 is insufficient to meet the court-ordered obligation. The wife testified that the husband did heating and cooling work on the side, but when she was asked how much he made in a year doing this type of work her response was: “I have no clue.” There was no evidence introduced to dispute the husband’s testimony regarding his income. The trial court is not permitted to “disbelieve” the undisputed evidence. Wise v. Wise, 396 So.2d 111, 113 (Ala.Civ.App.1981). The husband did not testify as to his monthly expenses; however, the court-ordered payment is clearly unjust.

We reverse the judgment and remand this case for the trial court to reconsider the amount the husband is required to pay, in light of the evidence of the husband’s inability to pay.

The wife’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED.

CRAWLEY, J., concurs.

PITTMAN, J., concurs in the result.

THOMPSON and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

Our Supreme Court has repeatedly held that a trial-court determination arising from an ore tenus divorce proceeding is due deference:

“ ‘In reviewing the [circuit] court’s judgment in a divorce case presented ore tenus, we will presume the judgment to be correct....’’ Ex parte Jackson, 567 So.2d 867, 868 (Ala.1990). Furthermore, rulings on such matters as child support, alimony, division of marital property, and payment of marital debts are within the discretion of the circuit court. See id. Thus, a circuit court’s divorce judgment, including its rulings on these matters, will not be reversed unless it is so unsupported by the evidence that it is plainly and palpably wrong and a clear abuse of discretion. See Ex parte Smith, 673 So.2d 420, 421 (Ala.1995); Ex parte Jackson, 567 So.2d at 868; see also Hartselle v. Hartselle, 475 So.2d 860, 861 (Ala.Civ.App.1985) (‘The cases are legion which hold that matters in divorce cases, such as the division of property and child custody, are subjects that fall within the sound judicial discretion of the [circuit] court.’). Moreover, an appellate court reviewing a circuit court’s judgment in a divorce action is not to substitute its judgment of the facts for that of the circuit court. See Ex parte Smith, 673 So.2d at 422. Instead, the appellate court is ‘simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion.’ Id.”

Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000).

In reversing the judgment of the trial court, the main opinion concludes that the trial court’s award of alimony is inequitable because, it says, the husband’s testimony concerning his income was not disputed and because his gross monthly income is “insufficient to meet the court-ordered obligation.” I would first note, however, that a party’s current income is not the touchstone of an equitable alimony award: “[i]n making the initial award of alimony, the trial court may consider the parties’ ability to earn, as opposed to the parties’ actual income," and “[a]n award exceeding a [party’s] stated income does not automatically amount to an abuse of discretion by the trial court.” McAfee v. McAfee, 646 So.2d 122, 124 (Ala.Civ.App.1994) (emphasis added).

In this case, the husband’s most recent pay statement from his apartment-maintenance job was admitted into evidence. That statement reflects that the husband received $1,064 in gross pay and $782.91 in net pay. While the husband’s counsel, in one of his questions at trial, referred to this statement as reflecting the husband’s “monthly” earnings, the statement was admitted into evidence without any testimony from the husband that this characterization was correct. In actuality, the pay statement indicates that the husband worked a total of 76 hours during a period ending on May 18, 2001 to earn the pay reflected in that statement. A total of 76 working hours would, if accumulated over two calendar weeks, amount to just short of two standard 40-hour work weeks; thus, the trial court could reasonably have concluded that the husband’s actual monthly wages were approximately double that stated in the main opinion.

However, even if the husband’s 76 documented work hours did, in fact, represent his work for an entire month, the trial court could have drawn the inference that the husband was not fully employed and that he had a greater capability to earn than his wages would indicate. Moreover, there was evidence before the trial court indicating that the husband’s reported annual earnings from working in heating and air-conditioning during the five years preceding the trial had ranged from $31,000 to $36,100; that he had performed a “lot” of additional “side” work; that he had recently lost a job at a firm known as “One Arsenal” for misconduct, i.e., for attaching a telephone to a line running to a building so that he could save on his cellular-telephone bills; and that his current job involved a substantial cut in pay from his previous jobs. While the husband testified that he recently became “kind of tired of crawling under houses and attics because of [his] knees and back,” he also admitted to having sought continued employment in the heating and air-conditioning field with other companies after being terminated by One Arsenal.

In addition, some of this same evidence also could have served as a basis for the trial court to have drawn adverse inferences as to the husband’s credibility. In this regard it is important to note that the level of the husband’s earning capacity is not an “undisputed fact” in this case. The wife did not concede or stipulate that the husband’s monthly earning capacity was reflected by the above-discussed earnings statement; indeed, she took a position contrary to the husband’s position.

“Facts” and “testimony” are two different things. With respect to such testimony as the husband may have given in this case, “ ‘[t]he ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ ” Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001) (emphasis added; quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). On the other hand, “the ore tenus rule has no application where the facts are undisput-ably established.” Ex parte Anonymous, 803 So.2d at 546 (emphasis added; citing Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)). Thus, under the ore tenus rule, a trial court makes weight and credibility determinations as to each witness’s testimony. Our caselaw did not prevent the trial court from making an adverse credibility determination as to the husband’s testimony, even if there had been no other witness’s testimony inconsistent with his. Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538, 543 (Ala.1988) (affirming a judgment based on the trial court’s reservation as to the credibility of a single witness’s testimony, as well as the inference of inconsistent assertions drawn from that witness’s testimony); Hall v. Mazzone, 486 So.2d at 410-11 (upholding a trial court’s judgment based on a negative credibility determination as to the only witness whose testimony addressed a given issue); In re Anonymous, 812 So.2d 1221, 1227 (Ala.Civ.App.2001) (Murdock, J., concurring in the result), aff'd, 812 So.2d 1234 (Ala.2001).

Finally, it is well settled that “even if a divorce is granted on the grounds of incompatibility, a trial court may consider fault in making its awards” of alimony and property. Kluever v. Kluever, 656 So.2d 887, 890 (Ala.Civ.App.1995). In this case, the husband admitted to having committed adultery, which embarrassed and humiliated the wife, who was undisputedly a good wife and mother. The trial court expressly referred to the husband’s conduct at the conclusion of trial and indicated that that conduct would have consequences in the proceeding:

“[Y]ou know, you reach the point in your lives, the children are grown, and you and your wife would have had time for each other. Your financial situation with your joint income is better with the kids up and out and you could have had a good time, but you blew it. That’s all I can say.
“... And the order will reflect that, but that’s all I can say until I have a chance to review the evidence.”

In light of the foregoing evidence of the husband’s ability to earn, as well as his adulterous conduct, I cannot conclude that the trial court’s award of periodic alimony is inequitable. The trial court’s judgment is not so unsupported by the evidence as to be plainly and palpably wrong and a clear abuse of discretion, especially in light of the Supreme Court’s admonition that the role of this court is “ ‘simply to determine if there was sufficient evidence before the circuit court to support its decision against a charge of arbitrariness and abuse of discretion.’ ” Elliott, 782 So.2d at 311 (quoting Ex parte Smith, 673 So.2d at 422). I therefore respectfully dissent from the reversal.

THOMPSON, J., concurs.

      . The trial court ordered the husband to pay $700 per month plus monthly payments on the note secured by a first mortgage on the marital home; because those payments are not clearly denominated as "alimony in gross” and because they are identified as being in "addition" to periodic alimony, I conclude that those payments are in the nature of additional periodic alimony and not a property settlement. Bonham v. Bonham, 623 So.2d 337, 338 (Ala.Civ.App.1993) ("The intent to award alimony in gross must be unequivocally expressed or necessarily inferred from the language used.”).

      . In addition to the other factors discussed below that lead me to conclude that the husband has not shown on appeal why we should disturb the trial court’s finding that the husband has the ability to meet the alimony obligation it imposed, the husband is unable to point to any evidence in tire record regarding his living expenses.


author: McMILLAN, Presiding Judge.

text:
    B.W. v. STATE.
    CR-99-2117.
    Court of Criminal Appeals of Alabama.
    May 25, 2001.
    Rehearing Denied Aug. 10, 2001.
    Certiorari Quashed May 3, 2002 Alabama Supreme Court 1002031.

      Robert Dean Drummond, Jr., Montgomery, for appellant.
    Bill Pryor, atty. gen., and Jack W. Willis, ass. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, B.W., appeals from the trial court’s denial of his petition for a writ of habeas corpus.

In June 1997, B.W. was adjudicated delinquent for having committed the offense of murder. He was committed to the Department of Youth Services (“DYS”) until his twenty-first birthday. He did not appeal from the adjudication of delinquency and the sentence. In March 1999, B.W. filed a petition for examination and review. In April 1999, B.W. filed a motion to alter, amend, or vacate the order of commitment. In October 1999, he filed a motion for reconsideration of his sentence. The trial court denied all of these motions.

In April 2000, B.W. filed a petition for a writ of habeas corpus, alleging that he was due to be released because DYS had not complied with the requirements of § 44-l-36(g), Ala.Code 1975, requiring it to request an extension of the trial court’s original commitment order before the expiration of two years from the date of the original order.

In its order denying the petition, the circuit court stated:

“This cause came before the Court on 27th day of June 2000 on the Juvenile’s Petition for Writ of Habeas Corpus. The following persons were present: [B.W.], his parents, their attorney, Honorable Robert D. Drummond, Jr., the Honorable William J. Samford, II, counsel for the Alabama Department of Youth Services, and the Honorable Christina Kilgore, Assistant District Attorney for Calhoun County.

“B.W. was committed to the Department of Youth Services on June 11, 1997, after having been adjudicated delinquent for the offense of murder. The commitment to the Department of Youth Services was a determinate sentence until his 21st birthday. B.W. was fifteen (15) years old at the time. This Order was not appealed.

“B.W. now asserts that he is being illegally detained by the Department of Youth Services and asserts as grounds § 44-l-36(g), Code of Alabama, which states:

“ ‘(g) In the event that a youth has not been discharged prior to the expiration of two years from the date of the entry of the original commitment order, the department must request either:

“ ‘(1) The termination of the commitment order and the issuance of such other orders respecting the legal custody and continued supervision of the youth as may be warrant under the circumstances, or
“ ‘(2) The extension of the original order for a further specifically limited period of time, on the grounds that such extension is necessary for the welfare of the youth or for the public interest, such extension not to exceed the date upon which the youth will reach the age of 21 years.
“ ‘There must be a hearing at which the youth and his or her parent, guardian or counsel are present. The committing court shall have jurisdiction until the youth reaches his twenty-first birthday to issue an extension of its original commitment order. If the department does not act as prescribed in this subsection, custody awarded by the commitment order is terminated, and such order as regards such youth has no further force and effect after the expiration of two years.’

“It is undisputed that the Department of Youth Services did not make such a request prior to the expiration of two (2) years and that they continue to hold custody of B.W. pursuant to this Court’s Order of Commitment until his 21st birthday.

“B.W. now asserts that based on said statute, his commitment order was terminated on June 11, 2000 and that he should be immediately released.

“The Alabama Department of Youth Services and the State of Alabama, asserts that the Court’s Order of a determinate sentence for more than two (2) years obviates the requirements of § 44H-36(g), Code of Alabama, and that to request that which is already ordered would be redundant.

“There are three (3) types of commitments to the Department of Youth Services:

“(1) Non-determinate Sentence;
“(2) Serious Juvenile Offender;
“(3) Determinate Sentence.
“It is this Court’s opinion that the requirement of § 44-1-36, Code of Alabama, is directed at the non-determinate sentence in order to prevent a youth from languishing in a non-rehabilitative environment or simply being lost in the system. The requirements of this section are not to be used as a means to avoid a determinate sentence or to require the Department of Youth Services to do something it is already ordered to do, i.e., keep the youth for a specified period of time. This does not however, prevent the Department of Youth Services or the youth, from requesting the court to review and possibly amend an order, which was done in this case by the Department of Youth Services and B.W. That request was denied without a hearing by this Court, from which no appeal was taken.
“B.W. raised the same issues in a Petition for Writ of Mandamus against the Director of the Alabama Department of Youth Services in Circuit Court of Montgomery County. That Petition was dismissed according to B.W.’s counsel for lack of jurisdiction, not on the merits, and from which an appeal is pending.
“It is therefore this Court’s opinion that the requirements of § 44 — 1—36(g), Code of Alabama, do not apply when the commitment is for a determinate sentence in excess of two (2) years.

“It is hereby ORDERED, ADJUDGED and DECREED, as follows:

“A. The Petition for Writ of Habeas Corpus of B.W. is denied.
“B. The Clerk is directed to mail a copy to the parties and/or attorneys of record....”

In Ex parte R.E.C., 678 So.2d 1041, 1045 (Ala.1995), the Alabama Supreme Court, in deciding whether the juvenile court had acted outside its jurisdiction in having imposed a determinate sentence for a juvenile not considered a “serious juvenile offender,” held that:

“an order of commitment for a definite period does not offend the [Juvenile Justice Act], even though the juvenile has not been adjudicated a serious juvenile offender, provided that the order is accompanied by specific findings of fact and a reasoned analysis as to how the determinate period is calculated to benefit the juvenile or to further his or her rehabilitation; and provided, further, that the court’s intent to incorporate its order into the Plan plainly appears in the order.”

Here, the trial court’s order of commitment for a definite period did not offend the Juvenile Justice Act, even though B.W. had not been adjudicated a “serious juvenile offender,” because the order was accompanied by the trial court’s original order finding that B.W.’s case was one in which the first priority was the protection of the community, and secondarily was providing rehabilitative services. The court’s order stated that, for the commitment to benefit B.W., he should:

“(a) complete and receive his high school diploma, not GED;
“(b) receive counseling to address anger control and other issues, which a psychological examination should indicate;
“(c) receive technical skills training; and,
“(d) remain in a secure facility.”

Because a reading of the trial court’s order reveals that it intended to incorporate its order into the plan, no error occurred in its denial of the writ of habeas corpus. Therefore, the juvenile’s determinate sentence, and the trial court’s order, which complied with the requirements of Ex parte R.E.C., supra, obviated the need for a review within two years from the original date of the order to address the legal custody and continued supervision of the juvenile.

It need be noted that the juvenile can, however, petition the juvenile court to amend its commitment order, if the circumstances so warrant. The record in the case indicates that B.W. did, in fact, file several petitions requesting the trial court to review and amend his petition. As stated earlier, those petitions were denied.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: COBB, Judge.

text:
    John UNDERWOOD v. STATE of Alabama.
    CR-00-0645.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.

      Kimberly Paige Griffin, Prattville, for appellant.
    Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   COBB, Judge.

On November 17, 2000, John Underwood was convicted of first-degree robbery and first-degree theft of property, violations of §§ 13A-8-41(a)(l) and 13A-8-7, Ala.Code 1975, respectively. The trial court sentenced Underwood, as a habitual offender, to life in prison without the possibility of parole on the robbery charge. See § 13A-5-9(c)(3), AlaCode 1975. Because neither the sentencing order nor the transcript of the sentencing hearing reflects that the trial court sentenced Underwood on the charge of first-degree theft of property, we must remand this cause for the trial court to sentence Underwood for his first-degree theft of property conviction. However, we address Underwood’s claims on appeal regarding his convictions and affirm the trial court’s judgment as to Underwood’s convictions.

Underwood argues on appeal that the trial court erroneously denied his motions for a judgment of acquittal because the State presented insufficient corroborating evidence to support his convictions based on testimony from his codefendants.

“The action of the trial court in denying a motion for judgment of acquittal must be reviewed by determining whether there exists legal evidence before the jury, at the time the motion is made, from which the jury by fair inference could find the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978).”

Newsome v. State, 670 So.2d 703, 710 (Ala.Crim.App.1990).

“ ‘Corroboration need only be slight to suffice.’ Ingle v. State, 400 So.2d 938, 940 (Ala.Crim.App.1981). Circumstantial evidence is sufficient to show corroboration. Jackson v. State, 451 So.2d 435, 437 (Ala.Crim.App.1984). ‘The testimony of an accomplice must be corroborated “ ‘by other evidence tending to connect the defendant with the commission of the offense,’ but it is not necessary that there should be other evidence which would, of itself, warrant a conviction.” ’ Kuenzel v. State, 577 So.2d 474, 515 (Ala.Crim.App.1990), quoting Lumpkin v. State, 68 Ala. 56, 57-58 (1880).”

Tolliver v. State, 814 So.2d 991, 994 (Ala.Crim.App.2000). We address each conviction in turn.

I. First-Degree Theft of Property

On November 8, 1999, perpetrators broke into the Thweatts’ house in Pratt-ville and stole, among other things, assorted jewelry, a pistol, and a trumpet. Brandon Cargile, Underwood’s codefendant, testified that the theft was Underwood’s idea and that Underwood broke the window in the door in order to gain entry to the home. Cargile testified that he and Underwood committed the theft and that they then walked down the street to a grocery store. Cargile testified that he waited in the parking lot with the stolen goods while Underwood retrieved his girlfriend’s car and picked Cargile up.

The State also presented evidence that, on November 25, 1999, Officer Ron Boles arrested Underwood at the Relax Inn in Montgomery. Boles testified that, at the time Underwood was arrested, Ms girlfriend was in the hotel room and she was wearing a high-school class ring inscribed with Mrs. Thweatt’s maiden name. At trial, Mrs. Thweatt later identified the ring as the one stolen from her home. Underwood’s girlfriend consented to the search of her vehicle. In her vehicle, the police found a trumpet, which Mr. and Mrs. Thweatt identified at trial as having been stolen from their home. Officer Boles testified that, from Underwood’s girlfriend’s car, he also recovered a box filled with other articles, including jewelry and Christmas ornaments, that the Thweatts identified at trial as items stolen during the burglary of their home.

Additionally, Officer Boles testified that, upon his arrest at the Relax Inn, Underwood assured Officer Boles that he could recover the missing pistol. Underwood was released on bond to allow him to recover the pistol. A few days later, demon Motley saw Officer Boles in his neighborhood, approached Officer Boles, and told him that Underwood had come to his home and attempted to sell Motley a pistol. Officer Boles met with Motley and set up a controlled transaction between Motley and Underwood. Officer Boles gave Motley $100 in cash, which Officer Boles had photocopied, to purchase the pistol from Underwood. The next day, Motley paged Officer Boles to inform him that Underwood was on the way to Motley’s to sell the pistol. Motley purchased the pistol from Underwood and immediately paged Officer Boles again to inform him that the transaction was complete. Driving to Motley’s home, Officer Boles spotted Underwood walking down the street. Underwood had in his possession $40 of the money Officer Boles had provided to Motley; he was rearrested. Motley turned the pistol over to Officer Boles. At trial, Officer Boles identified the marked money and the pistol recovered from Motley; Motley and his girlfriend testified about the controlled transaction and identified the pistol; and Mr. Thweatt identified the pistol as the one stolen from his home.

The State presented sufficient evidence to corroborate Cargile’s testimony and connect Underwood to the theft of the Thweatts’ belongings. Therefore, the trial court correctly denied Underwood’s motions for a judgment of acquittal as to the first-degree theft of property charge.

II. First-Degree Robbery

In the evening of November 20, 1999, Eva Pierce was working as a clerk at the Big Bass Store in Autauga County. Two men entered the store and, at gunpoint, took money from the register, stole Pierce’s purse, and. ripped the telephone out of the wall before leaving.

The codefendants’ testimony varied. Cargile testified that he, Underwood, De-meko Powell, and Travis Powell went to Big Bass, but that Underwood did not go into the store and commit the actual robbery. Cargile also testified that, although the Powell brothers committed the robbery while he and Underwood waited in the car, the robbery was Underwood’s idea, that Underwood provided the gun, and that Underwood drove the perpetrators to the store in his girlfriend’s car. Demeko Powell testified that he drove Underwood’s girlfriend’s car to Big Bass, that Underwood provided the gun, and that he and his brother, not Underwood, went into the store and committed the robbery.

At trial, Eva Pierce identified Underwood as one of the robbers who entered the store. Pierce testified that she got a good look at the robber’s face and that she was “fairly sure,” that is, 80% to 95% sure, that Underwood was one of the robbers who entered the store.

Underwood argues that Pierce’s testimony, in light of that of Cargile and Demeko, is insufficient to corroborate the testimony of Underwood’s two codefend-ants that Underwood was involved in the robbery. Although Underwood couches his argument in terms of sufficiency of the evidence, his argument actually pertains to the weight of the evidence because he claims that Pierce’s testimony is not to be believed. “The issue of the weight of the evidence is preserved by a motion for a new trial, stating ‘that the verdict is contrary to law or the weight of the evidence.’ See AR.Cr.P. 24.1(c)(1).” Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Crim.App.1993). Underwood did not file a motion for a new trial in which he raised this issue; therefore, he has not preserved this issue for appellate review.

Moreover, “[w]e have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.... ‘The credibility of witnesses and the weight or probative force of testimony is for the [trier of fact] to judge and determine.’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989) (quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987)). Therefore, even if Underwood had preserved this issue for appellate review, we would not second-guess the jury’s determinations regarding Pierce’s credibility or the force of her testimony.

For the reasons stated above, we affirm Underwood’s convictions, but remand the cause for sentencing. Therefore, we remand this cause to the trial court in order for the trial court to either sentence Underwood for his first-degree theft-of-property conviction or to supplement the record with the necessary documentation showing that Underwood has, in fact, been sentenced for that conviction. Due return shall be made to this court within 28 days of the date of this opinion.

AFFIRMED AS TO THE CONVICTIONS AND REMANDED WITH DIRECTIONS AS TO SENTENCING.

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


author: SHAW, Judge.

text:
    Eddie DOAN v. STATE of Alabama.
    CR-00-1083.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 2001.
    Rehearing Denied Dec. 14, 2001.
    Certiorari Denied May 17, 2002 Alabama Supreme Court 1010669.

      S. Alee Spoon, Montgomery, for appellant.
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   SHAW, Judge.

Eddie Doan was indicted for discharging a firearm into an occupied automobile, a violation of § 13A-11-61, Ala.Code 1975. He was convicted of discharging a firearm into an unoccupied automobile, also a violation of § 13A-11-61, Ala.Code 1975. Pursuant to the Habitual Felony Offender Act, he was sentenced to 15 years’ imprisonment.

I.

Doan contends that the trial court erred in instructing the jury that discharging a firearm into an unoccupied automobile is a lesser offense included in the offense of discharging a firearm into an occupied automobile. Specifically, Doan contends that discharging a firearm into an unoccupied automobile is not a lesser-included offense of discharging a firearm into an occupied automobile and that the trial court’s instructions to the contrary effectively amended the indictment to charge a different offense. Because discharging a firearm into an unoccupied automobile was not charged in his indictment, Doan argues, the trial court did not have jurisdiction to adjudge him guilty of that offense.

The indictment charging Doan with discharging a firearm into an occupied automobile reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, Eddie Doan, whose name is otherwise unknown to the Grand Jury, did shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile, to-wit: a gun, into a dwelling, building, railroad locomotive, railroad car, aircraft, automobile, truck or watercraft, to-wit: an automobile while said automobile was occupied by Janet Streety, in violation of Section 13A-11-61 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 5.) During its oral charge, the trial court instructed the jury, in pertinent part, as follows:

“Ladies and gentlemen, in this case, as you know, this defendant is charged with the offense of discharging a weapon into an occupied vehicle. This is what the law says about that offense.
“A person commits the crime of discharging a firearm into an occupied vehicle or automobile if he discharges a firearm which discharges a dangerous projectile into an automobile. Therefore, in order to convict, the State must prove the following elements beyond a reasonable doubt: That the defendant did shoot or discharge a firearm. And by that I mean a firearm which discharges a dangerous projectile. Number two, that it went into an occupied vehicle or automobile. In this case, it was alleged by the State the vehicle was occupied by Janet Streety. And, number three, that the defendant acted knowingly.
“If you find the State has proven each of these elements beyond a reasonable doubt, it would be your duty to find the defendant guilty. If you find the State has failed to prove any one or more of those elements, then you must next consider a lesser included offense in this, and that is discharging a firearm into an unoccupied vehicle, if you find from the evidence that the vehicle was unoccupied. That’s the only difference in the law, whether it was occupied or unoccupied. All of the other elements and instructions that I have given you are the same.”

(R. 146-48.)

The question before this Court is whether discharging a firearm into an unoccupied automobile is a lesser-included offense of the offense of discharging a firearm into an occupied automobile. Under the facts of this case, we hold that it is.

Section 13A-1-9, Ala. Code 1975, provides, in part:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

In Fox v. State, 659 So.2d 210 (Ala.Crim.App.1994), this Court stated:

“ ‘In determining whether one offense is a lesser included offense of the charged offense, the potential relationship of the two offenses must be considered not only in the abstract terms of the defining statutes but must also be considered in light of the particular facts of each case.’
“(Emphasis in original.) Whether a crime is a lesser offense of another crime is necessarily decided on a ‘case-by-case basis.’ Aucoin v. State, 548 So.2d 1053, 1057 (Ala.Crim.App.1989).”

659 So.2d at 211.

Section 13A-11-61, Ala.Code 1975, provides:

“(a) No person shall shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile into any occupied or unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state.
“(b) Any person who commits an act prohibited by subsection (a) with respect to an occupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class B felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.
“(c) Any person who commits any act prohibited by subsection (a) hereof with respect to an unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class C felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.”

From a reading of § 13A-11-61, it appears that the Legislature intended that discharging a firearm into an unoccupied automobile be a lesser-included offense of discharging a firearm into an occupied automobile. Subsections (b) and (c) of § 13A-11-61 prescribe that discharging a firearm into an occupied automobile is a Class B felony, while discharging a firearm into an unoccupied automobile is a Class C felony. The statute reflects the notion that punishment should be more severe for discharging a firearm into an occupied automobile because such an act creates a greater risk of killing or injuring a human being. See § 13A-l-9(a)(4), Ala. Code 1975. In addition, in this case, discharging a firearm into an unoccupied automobile could be established by proof of the same or fewer than all the facts required to establish the offense of discharging a firearm into an occupied automobile. See § 13A-l-9(a)(l), Ala.Code 1975. To prove the offense of discharging a firearm into an unoccupied automobile, the State had to prove only that Doan fired into an automobile; however, to prove the offense of discharging a firearm into an occupied automobile, the State had to prove the additional element that the automobile was occupied at the time that the shot was fired. Doan was charged with discharging a firearm into an automobile occupied by Janet Streety. However, the evidence was conflicting as to whether Streety was actually in the vehicle at the time of the shooting. Thus, under the facts of this case, discharging a firearm into an unoccupied automobile was a lesser-included offense of discharging a firearm into an occupied automobile. The trial court’s instructions in this regard were, therefore, proper.

II.

Doan also contends that the trial court erred in providing the jury with a verdict form that did not include the option of finding Doan not guilty of discharging a firearm into an unoccupied vehicle. However, Doan “did not object to the verdict form at trial; thus, this issue was ... not preserved for appellate review.” Howell v. State, 659 So.2d 132, 134 (Ala.Crim.App.1994), citing Cotton v. State, 639 So.2d 577, 581 (Ala.Crim.App.1993).

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

AFFIRMED.

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


author: BASCHAB, Judge. COBB, Judge,

text:
    K.R.B. v. STATE.
    CR-00-1967.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Rehearing Denied Jan. 25, 2002.
    Certiorari Denied May 24, 2002 Alabama Supreme Court 1010938.

      Faye Edmondson and Donald R. Harrison, Dadeville, for appellant.
    Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, K.R.B., was convicted of reckless endangerment (Count 1 of the indictment), a violation of § 13A-6-24, Ala. Code 1975; second-degree sodomy of D.W.B., Jr. (Count 2 of the indictment), a violation of § 13A-6-64(a)(l), Ala.Code 1975; first-degree sodomy of J.B. (Count 3 of the indictment) and first-degree sodomy of S.B. (Count 4 of the indictment), violations of § 13A-6-63(a)(3), Ala.Code 1975; second-degree sexual abuse of D.W.B., Jr. (Count 5 of the indictment), a violation of § 13A-6-67(a)(2), Ala.Code 1975; first-degree sexual abuse of J.B. (Count 6 of the indictment), first-degree sexual abuse of C.B. (Count 7 of the indictment), and first-degree sexual abuse of S.B. (Count 8 of the indictment), violations of § 13A-6-66(a)(3), Ala.Code 1975; production of obscene matter involving D.W.B., Jr. (Count 9 of the indictment), production of obscene matter involving J.B. (Count 10 of the indictment), production of obscene matter involving C.B. (Count 11 of the indictment), and production of obscene matter involving S.B. (Count 12 of the indictment), violations of § 13A-12-197, Ala.Code 1975; and one count of possession of obscene mattei (Count 13 of the indictment), a violation of § 13A-12-192(b), Aa.Code 1975. The trial court sentenced him to serve a term of twelve months in the county jail on the reckless endangerment conviction; concurrent terms of twenty years in prison on the second-degree sodomy conviction, fifty years in prison on the first-degree sodomy conviction involving J.B., and life in prison on the first-degree sodomy conviction involving S.B.; concurrent terms of twelve months in the county jail on the second-degree sexual abuse conviction and ten years in prison on each of the first-degree sexual abuse convictions; and concurrent terms of twenty years in prison on the production of obscene matter conviction involving D.W.B., Jr., forty years in prison on the production of obscene matter conviction involving J.B., sixty years in prison on the production of obscene matter conviction involving C.B., ninety-nine years in prison on the production of obscene matter conviction involving S.B., and ten years in prison on the possession of obscene matter conviction. It also ordered that the appellant serve his sentences on his sodomy convictions, on his sexual abuse convictions, and on his obscene matter convictions consecutively with each other. The appellant did not file any post-trial motions. This appeal followed.

This case involved four young victims— D.W.B., Jr., J.B., C.B., and S.B. — 'who were brothers and sisters. D.W.B., Jr., was twelve years old at the time of the offenses, and J.B., C.B., and S.B. were under twelve years of age at the time of the offenses. The appellant, who was the victims’ great uncle, had invited all four children to visit him. However, the children’s parents did not want all four children to visit at once. The appellant then suggested that the two boys, D.W.B., Jr., and J.B., visit him for one week; that he return them to their parents; and that the two girls, C.B. and S.B., then visit him for one week. Subsequently, D.W.B., Jr., and J.B. spent one week with the appellant. After the appellant took them home, C.B. and S.B. spent one week with the appellant. All four children testified that, during the visits, the appellant took photographs of them while they were nude. Additionally, D.W.B., Jr., J.B., and S.B. testified that the appellant touched them on their private parts and placed his mouth on their private parts. D.W.B., Jr., and J.B. testified that the appellant also made them put their mouths on his private parts. D.W.B., Jr., testified that he saw photographs of nude people on the computer in the appellant’s mobile home. Finally, S.B. testified that she saw photographs of nude children in the appellant’s travel trailer.

In an unpublished memorandum released today, we affirmed the appellant’s convictions for reckless endangerment, second-degree sodomy, first-degree sodomy, second-degree sexual abuse, first-degree sexual abuse of J.B. and S.B. based on Counts 6 and 8 of the indictment, production of obscene matter, and possession of obscene matter. See K.R.B. v. State, (No. CR-00-1967, November 30, 2001) — So.2d - (Ala.Crim.App.2001) (table). In this opinion, we address the sufficiency of the evidence to support the appellant’s conviction for first-degree sexual abuse of C.B. based on Count 7 of the indictment.

The appellant argues that the State did not present sufficient evidence to support his conviction for first-degree sexual abuse of C.B. Specifically, he contends that the State did not prove that he subjected C.B. to sexual contact. The State agrees that the appellant’s conviction based on Count 7 should be reversed.

“A person commits the crime of sexual abuse in the first degree if:
“(3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.”

§ 13A-6-66(a), Ala.Code 1975. Section 13A-6-60(3), Ala.Code 1975, defines sexual contact as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” During the State’s direct examination of C.B., the following occurred:

“[PROSECUTOR]: Did [the appellant] ever touch you with his hands or his mouth?
“[C.B.]: No.
“[PROSECUTOR]: He never touched you: He never kissed you on your private parts?
“[C.B.]: No.
“[PROSECUTOR]: Did you ever see him kiss [S.B.] on her private parts?
“[C.B.]: No.
“[PROSECUTOR]: It is wrong for somebody to be kissed on their private parts?
“[C.B.]: Yes.
“[PROSECUTOR]: You wouldn’t want somebody to do that to you, would you?
“[C.B.]: No.
“[PROSECUTOR]: Nothing further of this witness, your Honor.
“[DEFENSE COUNSEL EDMOND-SON]: No questions of this young witness, Judge.”
(R. 317-18.)

We agree that the State did not present any evidence that the appellant subjected C.B. to sexual contact. Therefore, we reverse the appellant’s conviction for first-degree sexual abuse of C.B. based on Count 7 of the indictment and render a' judgment for the appellant.

AFFIRMED BY MEMORANDUM IN PART-; ; AND REVERSED IN PART AND JUDGMENT RENDERED.

McMILLAN, FU., and SHAW and WISE, JJ., concur; COBB, J., concurs in part, dissents in part, and concurs in the result as to the memorandum and concurs in the opinion, with opinion.

COBB, Judge,

concurring in part, dissenting in part, and concurring in the result as to the memorandum and concurring in the opinion.

I agree with the majority’s published opinion reversing the conviction on Count 7, because the State presented no evidence indicating that K.R.B. had subjected C.B. to sexual contact. I also concur with the majority on Parts I through IV and VI through VIII of the unpublished memorandum. I disagree with the majority’s discussion and conclusion in Part V, regarding the trial court’s denial of the challenge for cause of B.G., the police chief of the jurisdiction in which K.R.B. was arrested. I believe that the trial court abused its discretion when it denied the defendant’s challenge for cause. Nonetheless, I concur in the result as to that issue because, under present Alabama law, the error was harmless.

As the majority’s quotation from the voir dire questioning of B.G. discloses, B.G. acknowledged that he believed everyone he arrested was guilty. (R. 26.) He also said that he believed that when a person is arrested by a police officer, the person probably committed the crime for which he was arrested. (R. 27.) When defense counsel asked B.G. whether he believed an accused had the burden of proving that he was not guilty, B.G. responded without answering the question:

“To try to answer your question, part of my duty in the latter part of my career was to evaluate and supervise the actions of police officers involved in making cases. In that judgments had to be made, and I feel that I did an adequate job.”

(R. 27-28.)

The majority determined that the trial court did not err when the trial court denied the challenge for cause because B.G. stated that he could be fair and impartial, that his department was not the lead agency in the investigation, and that he did not directly supervise any of the law enforcement officers involved in this case. I disagree.

B.G. was the police chief of the agency that participated in the arrest of K.R.B. When law enforcement officers arrived to search KR.B.’s residence, K.R.B. had a gun and refused to allow the officers to enter for approximately one hour. (R. 107, 129-30, 146, 194.) Officers negotiated with K.R.B., and he allowed them to enter. K.R.B. then threatened to kill himself with a large butcher knife. (R. 173.) Only after the knife was taken from K.R.B. and he was placed in custody did the officers execute the search warrant. (R. 106-07.) One of the officers testified that KR.B.’s actions placed him in fear for his life and for the life of his fellow officers. (R. 130, 194.)

“The fact that C.B. was a retired Montgomery police officer was not a statutory ground for removing him for cause. See § 12-16-250, Ala.Code 1975. Therefore proof of absolute bias on the part of C.B. was necessary to justify the challenge. See, e.g., Ray v. State, 809 So.2d 875, 885 (Ala.Crim.App.2001), cert. denied, 809 So.2d 891 (Ala.2001)CIn order to justify a challenge for cause, there must be a statutory ground or some matter that imports absolute bias or favor and leaves nothing to the discretion of the trial court.’).”

McNabb v. State, [Ms. CR-98-0967, Oct. 26, 2001] — So.2d -, - (Ala.Crim.App.2001).

The test to be applied in determining the qualification of a prospective juror is probable prejudice. Although juror qualification is a matter left to the trial court’s broad discretion, this Court will look to the questions asked and the answers given by the prospective juror to aid in the determination of whether the court properly exercised its discretion. Dailey v. State, 828 So.2d 340, 342 (Ala.2001), and cases cited therein. B.G. twice stated that he believed that a person who was arrested had probably committed the crime. When asked if he would place the burden of proof on the defendant, B.G. avoided the question and stated that he had supervised police officers involved in making cases. The voir dire questions and answers indicate a bias on B.G.’s part. The circumstances of this particular case further support KR.B.’s challenge for cause. B.G.’s agency provided backup in K.R.B.’s arrest, and the arrest was far from routine. Authorities were initially involved in an armed standoff with K.R.B. Before he was taken into custody and subdued, K.R.B. had wielded a large butcher knife and had threatened to kill himself. Understandably, the officers were in fear for their safety. KR.B.’s arrest and the entire case were extraordinary. Under these circumstances, and in light of B.G.’s conflicting answers during voir dire, I believe there was sufficient evidence of B.G.’s bias, and I believe that he had a preconceived notion about KR.B.’s guilt. Therefore, KR.B.’s challenge for cause should have been granted, and the trial court abused its discretion when it denied the challenge.

In spite of the foregoing, I am compelled to concur as to the result. The erroneous denial of a challenge for cause is harmless error, and as “long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that Sixth Amendment was violated.” Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

Based on the foregoing, I concur only in the result reached as to Issue V of the unpublished memorandum. As to the opinion released today, I concur.


author: PER CURIAM.

text:
    Ex parte Jimmie DAVIS. (In re State of Alabama v. Jimmie Davis).
    CR-01-1313.
    Court of Criminal Appeals of Alabama.
    May 3, 2002.

      Jimmie Davis, pro se.
    Submitted on petitioner’s brief only.
   PER CURIAM.

The petitioner, Jimmie Davis, filed this petition for a writ of mandamus directing Judge Gloria Bahakel to grant his in for-ma pauperis request so he can file a Rule 32, Ala.R.Crim.P., petition without prepayment of the designated filing fee. (The docket fee for filing an action in the circuit court is currently $145. See § 12-19-71(a)(3) and § 12-19-71(b), Ala.Code 1975.) In 1987, Davis was convicted of rape in the first degree and was sentenced as an habitual offender to life imprisonment without the possibility of parole. This court affirmed his conviction and sentence on direct appeal. Davis v. State, 549 So.2d 577 (Ala.Crim.App.1989). On November 7, 2001, Davis filed a postconviction petition under Rule 32, Ala.R.Crim.P. Davis’s petition was accompanied by a request to proceed informa pauperis. On November 9, 2001, Judge Bahakel denied Davis’s request for indigency status. On March 22, 2002, Davis filed this mandamus petition.

The requirements for filing a mandamus petition are governed by Rule 21, Ala.R.App.P. Rule 21(a) states:

“Application for a writ of mandamus or of prohibition directed to a judge or judges shall be made by filing a petition therefor with the clerk of the appellate court having jurisdiction thereof with certificate of service on the respondent judge or judges and on all parties to the action in the trial court. The petition shall contain a statement of the facts necessary to an understanding of the issues presented by the application; a statement of the issues presented and of the relief sought; a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on; and copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition. The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time. Except in the Court of Criminal Appeals, the petition shall be accompanied with payment of the docket fee as prescribed in Rule 35A to the clerk of the appellate court. Upon the filing of said petition, the clerk shall docket the petition and submit it to the court.”

(Emphasis added.)

Rule 21(a), Ala.R.App.P., provides that writs of mandamus and prohibition shall be filed within the time allowed for taking an appeal. According to Rule 4, Ala. R.App.P., a defendant has 42 days to file a notice of appeal. Here, Judge Bahakel denied the motion for in forma pauperis status on November 9, 2001. This mandamus petition was not filed until 133 days later — a date significantly beyond the presumptively reasonable time period designated in Rule 21(a), Ala.R.App.P.

The rule also provides that if a mandamus petition is filed outside the presumptively reasonable time, the petition “shall include a statement of circumstances constituting good cause for the appellate court to consider the petition.” Rule 21(a), Ala.R.App.P. The use of the word “shall” indicates that this provision is mandatory, not permissive. See Pierson v. State, 677 So.2d 246 (Ala.1995). Davis failed to comply with this provision. He provides no explanation as to why this petition was filed 133 days after Judge Bahakel’s ruling — a date 91 days past the presumptively reasonable time for filing a petition for a writ of mandamus in this case.

There are no Alabama cases specifically addressing the effect of the failure to file a mandamus petition within the designated time period and a petitioner’s failure to explain the delay. However, the “Committee Comments to Amendments to Rule 21(a) and Rule 21(e)(4) Effective September 1, 2000” state the following:

“Little precedent exists on the subject of the timeliness of these petitions, probably because the courts have published few decisions explaining the denial of a petition. A petition for a writ of mandamus based on a trial court’s failure to rule on a matter does not have a benchmark date from which to begin [to] measure a reasonable time. Thus, this amendment, setting the presumptively reasonable time within which to file a petition, will not affect the determination of what is a reasonable time for filing a petition based on the failure to rule. However, where the petition for the writ of mandamus challenges an action of the trial court, the amended rule adopts as the presumptively reasonable time the 42-day period for appealing from a final judgment in a civil case, unless the time for appeal is shorter, pursuant to a rule or a statute (see, e.g., Rule 4(a)(1)), in which case the shorter time becomes the presumptively reasonable time....
“In a particular case, an appellate court may find a petition challenging a ruling of the trial court to be untimely even though it is filed within the time for taking an appeal, as, for example, when the petition is filed shortly before trial, yet several days or even weeks after the adverse ruling. Consequently, the better practice is to include in the petition a description of the circumstances constituting good cause for any delay, although the amended rule mandates such a showing only when the petition is filed beyond the time for taking an appeal from the ruling.
“To determine whether the circumstances warrant the appellate court’s accepting a petition filed beyond the presumptively reasonable time established in this rule, the court should weigh factors such as the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.”

We have weighed the suggested factors discussed in the Committee Comments. Davis has not identified what issues he raised in his postconviction petition' — a petition filed approximately 15 years after his conviction and appeal. Our records reflect that Davis has previously filed more than one postconviction petition. See Davis v. State, 727 So.2d 186 (Ala.Crim.App.1997) (table) (appealed the denial of a motion for a directed verdict that court treated as postconviction petition); and Davis v. State, 683 So.2d 1074 (Ala.Crim.App.1996) (table) (appealed denial of post-conviction petition). Based on Davis’s pri- or history of filing postconviction petitions, this latest petition, in all likelihood, is successive. See Rule 82.2(b), Ala.R.Crim.P. Moreover, according to Rule 32.2(c), Ala. R.Crim.P., a postconviction petition is time-barred if it is not filed within two years of this Court’s issuance of a certificate of judgment or, if the case was not appealed, within two years after the time for filing an appeal has elapsed. Nothing in the mandamus petition suggests that any issue Davis raised in his latest post-conviction petition is not barred by the period of limitations or precluded as a successive petition. Thus, there is absolutely no evidence that Davis will be prejudiced by our failure to consider this untimely petition.

Because Davis has failed to comply with the provisions of Rule 21(a), this petition is due to be dismissed.

PETITION DISMISSED.

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

      . This information is not contained in Davis's mandamus petition; however, we can take judicial notice of our previous records concerning Davis's conviction and appeal. See Hatfield v. State, 784 So.2d 377 (Ala.Crim.App.2000).

      . Rule 32.6(a), Ala.R.Crim.P., states that the petition "shall also be accompanied by the filing fee prescribed by law or rule in civil cases in circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis, in which event the fee shall be waived."
      Rule 32.6(a), was amended effective August 1, 2002. The amended Rule 32.6(a) provides that if the trial court deems that the issues in the petition are precluded for any of the reasons stated in Rule 32.2, that court may assess the filing fee and order the correctional institution to withhold 50% of all moneys deposited in the inmate's account until the filing fee is satisfied.

      . Rule 21(a), was amended effective September 1, 2000, to provide that writ of mandamus and prohibition must be filed within a presumptively reasonable time. Prior to this amendment no provision in Rule 21 stated a specific time within which a petition for a writ of mandamus or prohibition was to be filed.

      . See Ex parte Thomas, 828 So.2d 952 (Ala.2001) (one of the reasons relief was due to be granted was that the mandamus petition filed in the lower court was not timely filed).

      . Rule 32.2(c) has been amended. Effective August 1, 2002, the limitations period is shortened to one year.


text:
    Ex parte Walter REEVES. (In re State of Alabama v. Walter Reeves).
    CR-01-1124.
    Court of Criminal Appeals of Alabama.
    May 3, 2002.
    Walter Reeves, p.ro se.
    Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for respondent.
   PER CURIAM.

The appellant, Walter Reeves, filed this petition for a writ of mandamus directing Judge Dan C. King to order the return of his 1976 Cadillac Seville automobile that was seized when he was arrested for violating Alabama’s controlled-substance act. Reeves was charged with possessing cocaine; the case against him was subsequently dismissed. Reeves contends in his petition that, after the case was dismissed, the court entered an order for the return of his vehicle. When his vehicle was not returned, Reeves filed a motion in the circuit court requesting the return of his vehicle. The motion was set for a hearing in December 2001. No hearing was held; this petition followed.

Initially, we ordered that a response to the petition be filed within 21 days because Reeves had alleged in his petition that “[n]o action of forfeiture or any other styled pleading has been filed to confiscate petitioner’s property, to wit: 1976 Seville Cadillac.” According to the Alabama Supreme Court in State v. Baker, 703 So.2d 333 (Ala.1997), this Court has exclusive jurisdiction of cases where property has been seized as a result of a criminal arrest and no civil forfeiture action has been initiated. In Baker, the Supreme Court stated:

“[I]n this case, there was no civil forfeiture proceeding involved and the State did not seek forfeiture of the money as proceeds of the robbery. Instead, the State simply seized the money pursuant to a validly executed search warrant and introduced it as evidence in Baker’s criminal trial for first-degree robbery.
“... However, because this action arose solely out of a criminal prosecution and because the Court of Civil Appeals has no appellate jurisdiction over criminal matters, that court had no jurisdiction to issue a writ of mandamus ordering the return of property seized in a criminal investigation and introduced as evidence in a criminal trial.”

703 So.2d at 335.

However, the response to the mandamus petition reflects that a formal civil forfeiture action was commenced in this case. The State has attached copies of numerous court documents related to the civil forfeiture action. (Circuit court no. CV-98-0032.) Because it appears that this petition is related to a civil forfeiture, jurisdiction of this case is properly with the Court of Civil Appeals, not this Court. The Alabama Supreme Court in Baker noted that civil forfeiture actions that fit within the monetary amounts provided in § 12-3-10, Ala.Code 1975, are within the jurisdiction of the Court of Civil Appeals. Baker, 703 So.2d at 334.

This case is therefore transferred to the Court of Civil Appeals.

CASE TRANSFERRED.

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