author: MURDOCK, Judge.

text:
    Ex parte D.J.B. (In re D.J.B. v. K.R.B.).
    2010300.
    Court of Civil Appeals of Alabama.
    March 28, 2003.

      Richard C. Shuleva, Birmingham, for petitioner.
   MURDOCK, Judge.

K.R.B. (“the wife”) and D.J.B. (“the husband”) were married on November 6,1989. The wife was pregnant when the parties married; she gave birth to a child on March 17, 1990. The parties separated in 1991.

On February 7,1992, the husband filed a petition for divorce in the St. Clair Circuit Court; the petition stated, in pertinent part, that “[tjhere were no children born of this marriage. [The wife] was, however, pregnant with the child of another man when plaintiff married her. A child was born to [the wife] after the marriage of [the] parties, but said child is not the child of the [husband] herein.” On February 11, 1992, the wife filed a petition for support against the husband in the St. Clair District Court. In April 1992, the husband successfully moved the circuit court to consolidate the divorce action and the support action.

On May 12, 1992, the parties filed with the court an agreement they had executed in contemplation of divorce that stated, among other things, that the minor child born of the marriage was not the husband’s child. Thereafter, on July 10, 1992, the trial court entered a divorce judgment. With regard to the issue of the paternity of the minor child, the judgment stated, in pertinent part:

“THREE: The matter of the paternity of [the minor child] is hereby reserved for further order of this Court.
“EIGHT: Pending further order of this Court regarding the paternity of [the minor child], the [husband] shall pay child support to [the wife] for the support and maintenance of the said minor child ... according to the Child Support Guidelines as set forth in Rule 32 of the Alabama Rules of Judicial Administration .... ”

The record reveals that no further action was taken in this case until some eight and one-half years later, when the husband, on January 22, 2001, filed a pleading entitled a “Petition to Modify,” requesting the trial court to “determine the true parentage of the minor child and [to] terminate [the] child support obligations of [the husband].” On March 7, 2001, the wife filed both a motion to dismiss the husband’s petition and an answer to that petition. The motion asserted that the husband had been adjudicated the father of the minor child and that the husband’s petition failed to state a claim for which relief could be granted. The answer generally denied the allegations of the husband’s petition and also asserted that the petition failed to state a claim upon which relief could be granted. Neither the March 7, 2001, motion, nor the March 7, 2001, answer filed by the wife asserted any affirmative defenses.

With her answer, however, the wife did file counterclaims seeking an increase in child support and a rule nisi. As to the rule nisi request, the wife alleged that the husband had failed and refused to pay “all child support as required,” to maintain medical insurance on behalf of the minor child, and to contribute to the payment of medical expenses incurred on behalf of the minor child that were not covered by insurance. We note that in a subsequent filing in the trial court asking the court to reconsider the order from which the husband now appeals, the husband “repre-sentfed] unto the Court that he has had no contact with the [wife] from the time of the divorce until the beginning of the current year, and that he has only filed his Petition to Modify after he became aware of the [wife’s] whereabouts. [The husband] would further aver that he has had no contact with the [minor child] in said time.”

A hearing was conducted on May 18, 2001, on the wife’s motion to dismiss. The record contains no transcript of that hearing and there is no indication in the record that the trial court received any evidence from the wife in support of her motion to dismiss.

No ruling was made on the wife’s motion until August 2001. In an order dated August 15, 2001, the trial court stated:

“The [wife] has filed a Motion to Dismiss the petition on grounds of laches, waiver and estoppel, and the statute of limitations. The Court is of the opinion that the Motion to Dismiss the petition to modify is well taken and it is hereby dismissed.”

The trial court’s order dated August 15, 2001, bears a stamp indicating that it was “filed” with the St. Clair Circuit Court clerk on August 22, 2001. The record also contains a document titled “Amendment to Answer Adding Affirmative Defenses” in which the wife asserts the affirmative defenses of laches, waiver, estoppel, and statute of limitations. This amendment is also stamped as having been “filed” with the circuit clerk on August 22, 2001.

On September 14, 2001, the husband filed a motion, asking the trial court to reconsider its dismissal of his petition seeking a paternity adjudication and to enter an order requiring the parties and the minor child to submit to genetic testing pursuant to Ala.Code 1975, § 26-17-12. The trial court subsequently entered an order setting both the wife’s counterclaim and the husband’s motion seeking reconsideration for a hearing on November 19, 2001.

On November 19, 2001, the trial court entered an order on the case action summary sheet denying the husband’s motion seeking reconsideration of the August 2001 order. However, there is no indication in the record that the trial court ever disposed of the wife’s counterclaim.

The husband attempts to appeal from the trial court’s August 2001 order dismissing his motion seeking a paternity determination. However, after reviewing the record, we conclude that there is not a final judgment from which the husband can appeal. The trial court never ruled upon the counterclaim filed by the wife on March 7, 2001. Even if it had, the 1992 divorce judgment reserved the matter of the paternity of the minor child pending further order of the court, and we can find nothing in the record indicating that a paternity adjudication was made at any time after the trial court reserved the issue in the divorce judgment.

“A ‘final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” ’ ” Horton v. Horton, 822 So.2d 431, 433 (Ala.Civ.App.2001) (quoting Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990)). Although dismissal of an appeal is appropriate when the order appealed from is not a final judgment, see Young v. Sandlin, 703 So.2d 1005 (Ala.Civ.App.1997), we elect in this case to treat the husband’s filing in this court as a petition for a writ of mandamus, seeking relief from the trial court’s August 2001 order and the trial court’s denial of the husband’s motion requesting genetic testing. See Roark v. Bell, 716 So.2d 1245 (Ala.Civ.App.1998); Ex parte Gamble, 709 So.2d 67 (Ala.Civ.App. 1998); Ex parte Norwood, 615 So.2d 1210 (Ala.Civ.App.1992).

“A writ of mandamus is an extraordinary remedy ... that should be granted only if the trial court clearly abused its discretion by acting in an arbitrary or capricious manner.” Ex parte Edwards, 727 So.2d 792, 794 (Ala.1998). The petitioner must demonstrate:

“ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Edwards, 727 So.2d at 794 (quoting Ex parte Adams, 514 So.2d 845, 850 (Ala.1987)).

The father argues that he had a right to a determination as to whether he is or is not the father of the child. He also argues that the trial court could not properly address the mother’s claim for child support without first addressing the issue of paternity. We agree with both contentions. As this court stated in Floyd v. Floyd, 701 So.2d 1151, 1153 (Ala.Civ.App.1997):

“[B]ecause the trial court possessed equitable jurisdiction to decide the issue of paternity, it had a prima facie duty to do so; it is the general rule that a court of equity, vested with jurisdiction in a particular case, will proceed to resolve all issues placed before it and to ‘resolve all equities between the parties.’ Creel v. Creel, 342 So.2d 793, 794 (Ala.Civ.App.1977); cf. Ex parte Handley, 460 So.2d 167, 169 (Ala.1984) (‘Equity delights to do justice, and not by halves.’).”

The father also argues that he is entitled to genetic testing with respect to the issue whether he is the father of the child. In this, too, we agree with the father. Section 26-17-12(a), Ala.Code 1975, provides that “[u]pon application of the defendant in a paternity proceeding or any other party to the action, the court shall order the mother, child, and defendant to submit to genetic tests to assist the court in determining paternity of the child.” See also State ex rel. Goodno v. Cobb, 567 So.2d 376 (Ala.Civ.App.1990) (applying the predecessor statute to § 26-17-12).

The petition for a writ of mandamus is granted. The trial court is directed to require the parties to submit to genetic testing as described herein, to conduct an evidentiary hearing on the issue of paternity, and, based thereon, to enter a judgment addressing the issue of paternity.

PETITION GRANTED; WRIT ISSUED.

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

THOMPSON, J., concurs in the result.

      . In his subsequent motion to the trial court for reconsideration of the order from which the husband now attempts to appeal, the husband conceded that this "petition to modify'' may not have been properly styled.

      . The certificate of service at the end of this amendment, however, recites a service date of May 18, 2001. The amendment is not referenced in the court’s case action summary sheet.
      We also note that in the record immediately following the trial court’s August 2001 order is a document entitled "Argument in Support of Defendant’s Motion to Dismiss.” This document argues, among other things, that the husband’s 2001 petition should be dismissed on the grounds of laches, waiver, estoppel, and statute of limitations. There is no filing date stamped on this document and no other indication in the record that it ever was filed with the court (including no reference to this document on the court's case action summary sheet). The certificate of service at the end of this document recites a May 18, 2001, service date.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge.

license: Public Domain

text:
    Tommy PINKARD v. STATE.
    CR-01-1905.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Tommy Pinkard, pro se.
    Andrew W. Redd, gen. counsel, and Jane LeCroy Brannan, asst. atty. gen., Alabama Department of Corrections.
   McMILLAN, Presiding Judge.

Tommy Pinkard filed a petition in the Limestone Circuit Court in which he challenged his classification by the Department of Corrections (“DOC”) as a heinous offender. Throughout the record, Pinkard sometimes refers to the petition filed in the circuit court as one for a writ of certiorari and other times as one for a writ of habeas corpus. The claim raised is properly addressed in a petition for a writ of certiorari; however, the circuit court treated it as a petition for a writ of habeas corpus. He argued that the statute pursuant to which he was so classified is “vague and overbroad” and that the facts of his offense did not warrant his classification as a heinous offender. DOC moved to dismiss, arguing that Pinkard does not have a liberty interest in a particular security classification and that he was classified according to DOC’s classification procedures. The DOC included with its motion the affidavit of Paul Whaley II, the director of classification for DOC. In his affidavit, Whaley stated that Pinkard has not been classified as a heinous offender, but rather that he is barred from participating in the work-release program for the following reasons: (1) the elements of a carjacking were present in his theft-of-property offense and (2) the victim of his robbery offense was cut on the neck with a knife during the robbery. The trial court thereafter denied Pinkard’s petition for the reasons argued by DOC. Pinkard then filed a motion to alter, amend, or vacate the judgment, arguing that his appointed counsel had failed to adequately represent him. The trial court denied that motion, and Pinkard appealed.

In his brief to this Court, Pinkard argues three claims:

1. Did the trial court abuse its discretion in denying Pinkard’s habeas corpus petition?
2. Did the trial court abuse its discretion in not bringing Pinkard before the court for a hearing on the merits of the petition?
3. Did the trial court err in not recording the alleged hearing and in not issuing an order that described events at the alleged hearing, as such action has deprived Pinkard of knowledge of what occurred at the hearing, and violates his rights to due process on appeal?

The trial court is correct in its determination that an inmate does not have a liberty interest in a particular security classification. However, Pinkard’s petition does not allege that he has a protected liberty interest, but instead seeks review of an administrative decision by DOC regarding his eligibility to participate in the work-release program. A petition for a writ of certiorari is the proper vehicle for challenging the administrative decision of a state agency. See Ex parte Boykins, [Ms. 1011152, Dec. 20, 2002] — So.2d — (Ala.2002). The trial court therefore erred in treating this petition as a petition for a writ of habeas corpus.

Moreover, because this is not a habeas corpus, but rather an action against DOC, venue has been determined to only be proper in Montgomery County and must be transferred to that county pursuant to § 6-3-9, Ala.Code 1975.

Accordingly, the judgment of the Limestone Circuit Court is reversed, and this matter is remanded to the circuit court for that court to transfer this case to Montgomery County Circuit Court to review Pinkard’s petition for writ of certiorari reviewing DOC’s decision regarding his security classification and its denial of his request to participate in the work-release program.

REVERSED AND REMANDED.

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

SHAW, J., concurs in the result.

      . The case action summary states that the trial court ordered a hearing on April 26, 2002. However, there is no indication in the record that a hearing was held, and the court reporter certified that no testimony was taken in this matter.


author: COBB, Judge.

text:
    Reginald Dale PETERS v. STATE of Alabama.
    CR-01-2272.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Randy B. Brooks, Anniston; William H. Broome, Anniston; and Warren Freeman, Delta, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

Reginald Dale Peters was indicted for trafficking in marijuana, a violation of § 13A-12-231, Ala.Code 1975. He filed a motion to suppress the evidence that resulted in his arrest, which was found in his vehicle, arguing that the evidence was the result of an illegal search and seizure. After a hearing, the trial court denied his motion. Peters then pleaded guilty to the offense, reserving the right to appeal the trial court’s denial of his motion to suppress. He was sentenced to 10 years’ imprisonment and was ordered to pay a $50,000 fine, a $1,000 Drug Demand Reduction Act fee, a $50 crime victims assessment, and court costs. This appeal followed.

At Peters’s suppression hearing, State Trooper Thad Chandler testified that on May 10, 2001, he and Deputy Brock were patrolling Interstate 20, when he noticed a Chevrolet Silverado truck with a Texas license plate following another vehicle too closely. He turned on his emergency lights and stopped the truck. Trooper Chandler approached the truck and asked Peters to exit the truck and produce his driver’s license. Trooper Chandler explained to Peters the reason for the stop. According to Trooper Chandler, Peters seemed agitated. Trooper Chandler testified that he had received training in looking for signs of human behavior that indicate criminal activity. Trooper Chandler testified that when he made the traffic stop, nothing initially indicated criminal activity. He became suspicious when he told Peters he was going to receive only a warning — not a traffic ticket — because Peters still seemed agitated.

Trooper Chandler had Peters sit in his patrol car while he wrote out the warning ticket. Trooper Chandler testified that in an effort to reduce the tension, he asked Peters where he was traveling. Peters told him that he was going to Myrtle Beach, South Carolina. At this time, Deputy Brock was speaking with the passenger in the truck. Trooper Chandler said to Peters, “I see you have your wife with you today.” (R. 11.) Trooper Chandler said that his comment seemed to agitate Peters more. Peters said, “No, it’s not my wife. It’s a Mend of mine.” (R. 11.) Peters told Trooper Chandler that his wife had remained in Texas because she was having surgery or had had surgery. Trooper Chandler testified that at this time he concluded the traffic stop. Peters went to get out of the police vehicle. Trooper Chandler asked Peters if he would please sign the warning and receive his copy. Trooper Chandler testified that Peters then took the form and signed it abruptly. After signing the warning, Peters again went to get out of the vehicle. Trooper Chandler said, “Mr. Peters, if you will, please allow me to give "you your copy.” (R. 12.) Trooper Chandler testified that in his experience, a traffic offender’s trying to exit the patrol car before the citation is complete is a key indicator of criminal activity. Trooper Chandler gave Peters his copy of the warning. Peters got out of the vehicle and began walking to his truck.

At this point, Trooper Chandler got out of the vehicle and said, “Mr. Peters, may I talk to you a moment more?” (R. 12.) Trooper Chandler testified that Peters sharply said, “What? Yes.” (R. 12.) Trooper Chandler asked Peters if there was anything illegal in his truck. Peters said, “I travel up and down this interstate one hundred — I have done this one hundred times. I have been stopped by law enforcement and no one has ever asked me to search my truck.” (R. 12.) Trooper Chandler told Peters that he did not ask him if he could search his truck but only asked him if he had anything illegal. Peters told him that he did not. Trooper Chandler asked him if he had any marijuana in his vehicle. Trooper Chandler testified that Peters’s response alarmed him. He said Peters looked down to the ground and dropped his chin to his chest, which Trooper Chandler believed to be clues that Peters was being deceptive. Peters said, “No. No. No.” (R. 33.) Trooper Chandler then asked Peters if he could search the vehicle. Peters refused consent and stated that he did not have time. Trooper Chandler told him that that was fine, that he was free to leave, but that he was detaining the truck so the canine unit could make a sweep of the vehicle.

The canine unit arrived a few minutes later and made a sweep of the vehicle. The canine alerted to the tailgate of the truck. Trooper Chandler directed Peters to open the camper shell on the truck. Peters said, “That dog’s lying.” (R. 17.) He continued, “I’ve seen those cop shows. Y’all can make those dogs do what you want them to do.” (R. 17.) Peters said he did not have a key to open the top. A second canine unit arrived and also alerted to the tailgate.- An officer then opened the camper shell. Trooper Chandler saw two large, duffle bags. He placed his hand on the bags and felt a block-like substance in each one. Based on his experience, Trooper Chandler believed that the blocks were illegal drugs. He opened the bags and saw blocks of vacuum-sealed green leafy plant material, later determined to be marijuana. At some point, Deputy Brock, who had spoken with the passenger, told Trooper Chandler that the passenger said they were traveling to Augusta, Georgia. However, Trooper Chandler said that this occurred after the traffic citation portion of the stop had been concluded. The only other testimony at the suppression hearing was that of Wesley Clark, Jr. Clark established the chain of custody of the marijuana.

Peters argues that the marijuana should have been suppressed because, he argues, Trooper Chandler did not have reasonable suspicion for the canine unit to search the truck. Peters argues that the scope of the stop should have been limited to what was necessary to issue the warning citation for the traffic violation. This Court has stated:

“Once the traffic offender signs the UTTC [Uniform Traffic Ticket and Citation], the arresting officer is to ‘forthwith release him from custody.’ § 32-1-4(a)[, Ala.Code 1975]. The officer may further detain the driver only if he has probable cause to arrest the driver for some other nontraffic offense, see Hawkins v. State, 585 So.2d 154 (Ala.1991), or has a reasonable suspicion of the driver’s involvement in some other criminal activity justifying further detention for investigatory purposes under Terry v. Ohio[, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], see United States v. Tapia, 912 F.2d 1367 (11th Cir.1990).
“ ‘Reasonable suspicion is a less demanding standard than probable cause.’ Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). However, reasonable suspicion exists only if the officer has ‘specific, particularized, and articulable reasons indicating that the person [stopped] may be involved in criminal activity,’ Hickman v. State, 548 So.2d 1077, 1080 (Ala.Cr.App.1989). ‘To determine whether reasonable suspicion existed for a particular stop, the totality of the circumstances, as knoim to the officer at the inception of the stop, [or, in this case, at the time of the continued detention,] must be considered.’ Arnold v. State, 601 So.2d 145, 149 (Ala.Cr.App.1992) (emphasis added [in Washington ]). Accord Lamar v. State, 578 So.2d 1382, 1385 (Ala.Cr.App.), cert. denied, 596 So.2d 659 (1991).”

State v. Washington, 623 So.2d 392, 395-96 (Ala.Crim.App.1993).

Trooper Chandler’s testimony at the suppression hearing clearly established that he had probable cause to stop Peters and effect a noncustodial traffic arrest for the offense of following a vehicle too closely. Trooper Chandler testified that Peters appeared to answer his questions truthfully and that he signed the Uniform Traffic Ticket and Citation (“UTTC”). The question is whether Trooper Chandler had the necessary reasonable suspicion to continue to detain Peters after Peters had signed the UTTC.

It appears that the only reasons Trooper Chandler gave for detaining Peters were that Peters acted nervous, appeared agitated, and tried to exit the patrol car before signing the warning citation or receiving his copy. “ ‘[T]here is no constitutional requirement of reasonable suspicion as a prerequisite for seeking consent to search.’ ” State v. Washington, 623 So.2d at 397, quoting State v. Abreu, 257 N.J.Super. 549, 555, 608 A.2d 986, 989 (1992). As was the case in Washington, it is clear from Trooper Chandler’s questions concerning any illegal activity that Trooper Chandler went beyond merely asking for consent to search and initiated, instead, an investigative detention.

“[I]nformation obtained ... during this further detention cannot be considered in evaluating whether the trooper had reasonable suspicion to further detain the defendant in the first place.” Washington at 397. A defendant’s ultimate refusal to consent to a search of the vehicle cannot be considered as a factor in the officer’s determination of reasonable suspicion. State v. Washington, supra. Therefore, we are left with only the factors enumerated by Trooper Chandler at the suppression hearing that he considered before the detention: (1) that Peters was nervous, (2) that Peters appeared to be agitated, and (3) that Peters tried to exit the patrol car without signing the traffic citation or receiving his copy of the citation.

The prevailing view is that “unless coupled with additional and objectively suspicious factors, nervousness in the presence of a police officer and/or failure to make eye contact do not establish reasonable suspicion to believe that the person is engaged in criminal activity.” Washington at 398. The fact that Peters was agitated at being stopped is insufficient to supply a reasonable suspicion of criminal activity. Likewise, the fact that Peters tried to get out of the patrol car without signing his citation or receiving a copy of it does not rise to the level of reasonable suspicion. Peters may have thought the traffic stop was concluded, and it might not have occurred to him that he needed to sign the citation or receive his copy.

Even if we concluded that the detention did not begin until Trooper Chandler told Peters that he was free to go but that he was going to detain the truck for the canine unit, and thereby allow us to take into consideration the other factor of avoiding eye contact, the addition would not establish the reasonable suspicion necessary to justify Trooper Chandler’s detention. “A detaining officer ‘must be able to articulate something more than an “inchoate and unparticularized suspicion or ‘hunch.’ ” [Terry v. Ohio, 392 U.S.] at 27, 88 S.Ct. [at] 1883 [ (1968) ].’ ” Washington at 399. Since we cannot determine from the record at what moment Trooper Chandler learned that the passenger had given his partner a different travel destination, we cannot say that this factor was known to Trooper Chandler at the time of the detention. However, even if Trooper Chandler had had that information before he detained Peters, it still would not be sufficient to establish reasonable suspicion. South Carolina and Georgia are not in opposite directions of one another. It is not uncommon for people to ride together but yet have different destinations. The officers did not inquire further into this discrepancy to ascertain the reason behind the discrepancy. Thus, the mere fact that two people in the same vehicle gave different travel destinations does not change our conclusion that Trooper Chandler did not have sufficient reasonable suspicion to detain Peters.

The State argues that this ease is more akin to Owen v. State, 726 So.2d 745 (Ala.Crim.App.1998), than to State v. Washington, 623 So.2d 392 (Ala.Crim.App.1993). We disagree. In Owen, this Court held that the trooper had reasonable suspicion to believe that Owen was engaged in criminal activity based upon Owen’s nervousness and evasive behavior. The State claims that Peters was nervous, agitated, and evasive; however, it does not provide this Court with any examples of how Peters exhibited evasiveness. Trooper Chandler did not even claim that Peters was evasive. There is no indication that Peters exhibited any evasive behavior. In Owen, this Court cited many examples of Owen’s evasive behavior. In Owen, the defendant, upon being pulled over by the officer, immediately exited his vehicle and went to the officer’s vehicle. Owen tried to block the officer’s view of his vehicle by moving into the officer’s line of sight. Owen also lied about his arrest record. When the officer asked Owen questions about his vehicle, Owen would ask questions about the officer’s vehicle. In this case, Trooper Chandler testified that Peters answered all of his questions truthfully. Peters did not get out of his vehicle until Trooper Chandler asked him to do so. There is no evidence that Peters tried to block Trooper Chandler’s view of the vehicle. None of the factors this Court cited in Owen as showing evasiveness is present in this case. There is no evidence indicating that Peters was evasive, and Trooper Chandler does not claim that Peters was evasive. Thus, Owen has little application to this case.

Therefore, we hold that the trial court erred in denying Peters’s motion to suppress. For the foregoing reasons, the judgment is reversed and the cause remanded to the Cleburne Circuit Court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur.

BASCHAB and WISE, JJ., dissent, without opinion.


author: SHAW, Judge. COBB, Judge,

text:
    Jason Seth CRENSHAW v. STATE of Alabama.
    CR-01-2285.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Daniel Prescott Mitchell, Bay Minette, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

COBB, J., concurs in part and dissents in part, with opinion.

COBB, Judge,

concurring in part and dissenting in part.

Jason Seth Crenshaw was convicted of possession of marijuana in the second degree, a violation of § 13A-12-214(a), Ala. Code 1975, and possession of drug paraphernalia, a violation of § 13A-12-260(c), Ala.Code 1975. Crenshaw contends on appeal that the trial court committed reversible error when it denied his motion for a judgment of acquittal. According to Cren-shaw, his motion was due to be granted because, he says, the State failed to prove that the substance seized from his residence by Officer Donnie Payne of the Baldwin County drug task force, was, in fact, marijuana. Specifically, he claims that Payne’s testimony that the substance was marijuana was insufficient, by itself, to prove that the substance was marijuana. Crenshaw argues that absent scientific forensic analysis, the State could not prove beyond a reasonable doubt that the substance was marijuana.

The majority, in its unpublished memorandum, answered Crenshaw as follows:

“Contrary to Crenshaw’s assertion, Officer Payne’s identification of the substance as marijuana was sufficient to establish that the substance was, in fact, marijuana. It was not, as Crenshaw contends, necessary to establish separate proof that the substance was marijuana through forensic testing in order to sustain his conviction for second-degree possession of marihuana. In Powell v. State, 804 So.2d 1167 (Ala.Crim.App.2001), this Court held that forensic testing was not necessary to establish that the substance was marijuana in a prosecution for the possession of marijuana.”

For the following reasons, taken from my special writing in Merritt v. State, 853 So.2d 1021 (Ala.Crim.App.2002), I respectfully dissent from the majority’s affirmance of Crenshaw’s conviction for possession of marijuana in the second degree.

“I ... disagree with the majority’s reliance ... on Powell v. State, 804 So.2d 1167 (Ala.Crim.App.2001), for the proposition that forensic testimony is unnecessary in a prosecution for the unlawful possession of marijuana — where guilt must be proven beyond a reasonable doubt. Although I concurred with the decision reached in Powell, I now realize I did so in error. I believe that Powell’s reliance on Alabama caselaw, Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998), and Hanks v. State, 562 So.2d 536, 540 (Ala.Crim. App.), rev’d on other grounds, 562 So.2d 540 (Ala.1989), is misplaced.
“Headley is an appeal from the circuit court’s denial of a petition for a writ of habeas corpus after the Department of Corrections found Headley guilty of violating prison regulations. The evidentiary standard required to satisfy due process in a prison disciplinary hearing is ‘some evidence.’ Headley v. State, 720 So.2d at 997. The Headley court opined that where an officer testified that based on his ‘expertise or the knowledge’ plant material was marijuana, the ‘some evidence’ standard was met.1 I agree.
“Hanks was convicted of manslaughter. A police officer was allowed to testify that he smelled marijuana in Hanks’s car; he saw two cigarettes in the floorboard; he saw a ‘roach’ in the ashtray; and he saw some ‘green leafy substance’ in a plastic baggie in a purse on the front seat. The officer was allowed to testify that, based on his experience and training, it was his opinion that these substances were marijuana. I believe that the officer’s identifying the material as part of the continuum of circumstantial evidence in a manslaughter case is different from identifying the material as the corpus delicti in a possession-of-marijuana case.
“I also disagree with Powell’s reliance on cases from other jurisdictions as persuasive authority to allow an officer to establish that the material in question is in fact marijuana. I believe where the burden of proof is beyond a reasonable doubt,2 forensic testimony (or a certificate of analysis) is required.
“Alabama caselaw acknowledges that ‘ “marijuana” contains “tetrahydrocan-nabinol (THC),” ’ Sharpe v. State, 384 So.2d 633, 634 (Ala.Crim.App.1980), citing Haynes v. State, 54 Ala.App. 714, 312 So.2d 406 (1975). Thus, ‘the THC content of marijuana is irrelevant,’ McElroy v. State, 611 So.2d 431, 432 (Ala.Crim.App.1992). Therefore, the State need prove only that the substance is marijuana. I believe that proof beyond a reasonable doubt requires the testimony of a toxicologist, a chemist, or some similar professional. See Radney v. State, 342 So.2d 942, 945 (Ala.Crim.App.1976)(once toxicologist, using his testing procedures, concluded that the substance purchased from the defendant was marijuana, no proof of the tetrahy-drocannabinol content was necessary); Winnings v. State, 370 So.2d 323, 328 (Ala.Crim.App.1979)(once toxicologist positively identified substance as marijuana, ‘no proof of THC content was necessary’). I can find no caselaw in Alabama, other than Powell, allowing guilt in a possession-of-marijuana or a trafficking-in-marijuana case to be established beyond a reasonable doubt based on the testimony of a law-enforcement officer instead of the testimony of a toxicologist, a chemist, or some similar expert.
“ 1We also allow officers to give their opinion in probable-cause hearings because ‘probable cause’ is defined as ‘ “facts and circumstances ... such as warrant a man of reasonable prudence and caution in believing that the offense has been committed,” and that the person in question is the offender.’ Vincent v. State, 349 So.2d 1145, 1146 (Ala.1977)(juvenile transfer proceed-ing)(quoting United States v. Watson, 423 U.S. 411 (1976)).
“ 2‘ “[T]he evidence must establish the truth of the fact to a ... certainty that convinces and directs the understanding, and satisfies the reason and judgment, of those who are bound to act conscientiously upon it.” ’ Victor v. Nebraska, 511 U.S. 1, 8 (1994).”

Merritt v. State, 853 So.2d at 1023-24 (Cobb, J., dissenting).

Based on the above, I respectfully dissent from the majority’s unpublished memorandum, which affirms the adjudication of the Circuit Court of Baldwin County finding Crenshaw guilty of possession of marijuana in the second degree. I concur in the majority’s affirmance in that memorandum of Crenshaw’s conviction for possession of drug paraphernalia.


author: COBB, Judge. SHAW, Judge,

text:
    Michael THORNTON and Kenneth Thornton v. STATE.
    CR-01-2215 and CR-01-2145.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Michael Thornton, pro se.
    Kenneth Thornton, pro se.
    William H. Pryor, Jr., atty. gen., and John M. Porter and Jean A. Therkelsen, asst, attys. gen., for appellee.
   COBB, Judge.

On May 22, 2002, Thomas Thornton, exercising a duly appointed power of attorney, verified and filed separate Rule 32, Ala.R.Crim.P., petitions in the Circuit Court of Jefferson County on behalf of his brothers Michael Thornton and Kenneth Thornton. The petitions challenged Michael’s and Kenneth’s October 29, 1992, convictions for rape in the first degree, sodomy in the first degree, and kidnapping in the second degree. Those convictions were obtained pursuant to guilty pleas. No direct appeal was taken. The petitions were assigned to the same circuit judge who summarily denied the petitions before the State responded by notations on the case action summary sheets. These appeals followed.

For the reasons discussed below, we hold that the petitions were not properly verified and, thus, that the circuit court did not have jurisdiction to rule on the petitions.

“[N]o statute expressly allows the commencement of actions by attorneys-in-fact.” Miller v. Jackson Hosp. & Clinic, 776 So.2d 122, 126 (Ala.2000). Rule 32, Ala.R.Crim.P., does not permit an individual invested with a power of attorney to verify as true the assertions contained in a Rule 32 petition filed on behalf of a petitioner. To the contrary, Rule 32.6(a), Ala. R.Crim.P., provides: “A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner’s attorney, with the clerk of the court.” (Emphasis added.) Moreover, the appendix to Rule 32, Ala.R.Crim.P., instructs a petitioner filing a petition pursuant to Rule 32 that a Rule 32, Ala.R.Crim.P., petition “must be legibly handwritten or typewritten, and must be signed by the petitioner or petitioner’s attorney under penalty of perjury.”

A properly executed power of attorney allows an individual (hereinafter “the agent”) to represent, and to make decisions for, the principal; however, it does not allow the agent to act as an attorney for the principal. The Alabama Legislature has regulated the practice of law:

“(a) Only such persons as are regularly licensed have authority to practice law.
“(b) For the purposes of this chapter, the practice of law is defined as follows:
“Whoever,
“(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof....”

§ 34-3-6, Ala. Code 1975.

“Although the law allows [a petitioner] to file [his own petition] pro se, it does not allow [a petitioner] to file a [petition] on behalf of anyone else....
“The purpose of § 34-3-6 is to ensure that laymen do not serve others in a representative capacity in areas that require the skill and judgment of a licensed attorney.”

Godwin v. State ex rel. McKnight, 784 So.2d 1014, 1015 (Ala.2000)(a complaint filed on behalf of another not permitted).

“No private contract can authorize the unauthorized practice of the law. In re Battelle Mem’l Inst., 170 N.E.2d 774, 782 (Ohio Com.Pl.1960)(rev’d on other grounds). See also Herndon v. Lee, 281 Ala. 61, 199 So.2d 74, 78 (1967) (affirming injunction granted to candidate for elected office to enjoin placing the name of another candidate on general election ballot because the petition was not presented by an attorney to court); Ramada Inns, Inc. v. Lane & Bird Advertising, Inc., 102 Ariz. 127, 426 P.2d 395, 396-97 (1967) (finding defendant’s answer defective because not signed by an attorney, following the position taken by the vast majority of jurisdictions); Leonard v. Walsh, 73 Ill.App.2d 45, 220 N.E.2d 57, 59 (1966) (citing Robb v. Smith, 4 Ill. 46 (1841) (holding that no person can commence or maintain an action in a court of record as ‘agent’ for another unless he is a regularly licensed attorney)).”

Telephone Man, Inc. v. Hinds County, 791 So.2d 208, 211 (Miss.2001).

“Because the petition was not presented by an attorney authorized to represent litigants before this court, the petition is due to be and is stricken.” Herndon v. Lee, 281 Ala. 61, 66, 199 So.2d 74, 78 (1967)(petition was not presented by an attorney to court). “Only such persons as are regularly licensed have authority to practice law.” Id.

Because nothing in the record suggests that Thomas Thornton is a licensed attorney in the State of Alabama and because Rule 32.6(a), Ala.R.Crim.P., specifically requires that the petitioner or his attorney must verify the claims contained in the petition, the instant petitions were not properly filed. Thus, the circuit court was without jurisdiction to rule on the petitions.

“ ‘ “Because [appellant’s] Rule 32 petition was not filed in the form required by ... Rule 32.6(b), [Ala.R.Crim.P.], the petition was due to be returned to the appellant with instructions to file a verified petition in the proper form. Therefore, jurisdiction of this case is transferred to the trial court with instructions to set aside its order denying the petition and to return the petition to [appellant] so that he can have the opportunity to file a petition in the proper form.” ’ ”

Crapps v. State, 822 So.2d 447, 448 (Ala.Crim.App.2000) (quoting Crapps v. State, 723 So.2d 775, 776 (Ala.Crim.App.1998), quoting in turn Banks v. State, 658 So.2d 511, 512 (Ala.Crim.App.1994)). The circuit court should allow Michael Thornton and Kenneth Thornton a reasonable time, not less than 60 days, to file properly verified petitions and the date of those petitions should relate back to the date of the original petitions.

APPEALS DISMISSED.

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

SHAW, Judge,

concurring specially.

I agree with the majority that the petitions filed by Thomas Thornton on behalf of his brothers, Michael Thornton and Kenneth Thornton, were not properly filed in circuit court and, therefore, that the circuit court did not have jurisdiction to rule on the petitions. I write specially only to make the following observations.

Rule 32.6(a), Ala.R.Crim.P., addresses the commencement of the proceedings; it provides in relevant part:

“A proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner’s attorney, with the clerk of the court.... The petition should he filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form.”

(Emphasis added.) Rule 32.7(c), Ala. R.Crim.P., discussing the appointment of counsel, provides:

“If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.”

In addition, Rule 32.8, Ala.R.Crim.P., states that “[i]n order to expedite the proceeding, the court may hold a prehearing conference, at which the petitioner need not be present if he or she is represented by counsel who is present.”

As noted by the majority, the appendix to Rule 32 provides the form to be used for petitions filed pursuant to Rule 32, Ala. R.Crim.P. The instructions for that form provide, in relevant part:

“(1) This petition must be legibly handwritten or typewritten, and must be signed by the petitioner or petitioner’s attorney under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury.”

Additionally, the form itself provides for the “Petitioner’s verification under oath subject to penalty for perjury ... OR* Attorney’s verification under oath subject to penalty for perjury.” The form explains the asterisk beside “OR” as follows: “If petitioner is represented by counsel, Rule 32.6(a) permits either petitioner or counsel to verify the petition.”

After examining the aforementioned sections of Rule 32, I agree that Rule 32 contemplates the verification of the petition only by (1) the petitioner or (2) the petitioner’s legal counsel or attorney, i.e., someone duly licensed and authorized to engage in the practice of providing legal representation in the State of Alabama. I too find nothing in the provisions of Rule 32 allowing for a layperson, i.e., a nonat-torney, to verify that the material allegations contained in the petition are true. Had the Supreme Court intended to authorize the verification of a petition by an attorney-in-fact, i.e., one exercising a power of attorney, it could easily have said so in the rule. It did not. Thomas Thornton cannot verify as true the assertions in his brothers’ petitions, and the record does not indicate that he is an attorney licensed to practice law in the State of Alabama. Therefore, I concur to remand this case to the circuit court for that court to return the petitions to the petitioners and to allow them a reasonable time in which to amend their petitions to conform to the requirements of Rule 32.6(a).

      . The petitions alleged that the petitioners entered into a negotiated plea with the State, with the express approval of the victims, pursuant to which, in exchange for guilty pleas, the State and victims agreed not to object when the petitioners became eligible for parole. However, according to petitioners, the agreement was not honored when in February of 2002, the victims and individuals representing the State testified before the parole board requesting that the petitioners be denied parole. The petitioners assert that at this time, the plea became invalid and that they became entitled as a matter of law to withdraw their guilty plea and demand a trial by jury. The petitioners also argue that this action is in the nature of the presentment of newly discovered evidence and, therefore, that the petitions were timely filed within six months of the discovery of the evidence. Attached as an exhibit to the petitions is what appears to be a portion of the transcript from the petitioners’ sentencing hearing. This transcript reflects the trial court’s comment to the parties "commend[ing] both sides for reaching a negotiated settlement in the case that I think benefits all of us.” (C. 31.) The details of the negotiated plea agreement are not contained in this part of the transcript. However, in the event the instant petitions are refiled in the proper form, we note for the benefit of the circuit court that, ”[w]hen the State does not respond to a petitioner's allegations, the unrefuted statement of facts must be taken as true. Chaverst v. State, 517 So.2d 643, 644 (Ala.Cr.App.1987).” Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991).

      . I recognize that Rule 36, Ala.R.Crim.P., cautions that the forms contained in the Appendix of Forms to the Alabama Rules of Criminal Procedure are provided only as examples and “have not been approved or adopted by the Alabama Supreme Court as officially approved forms.” However, the form for petitions for postconviction relief is not included in the Appendix of Forms; rather, it is an appendix to Rule 32 itself, and is referenced in the rule. See Rule 32.6(a)("The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form.”). I believe that this strongly suggests that that particular form has been approved by the Supreme Court, and the language in the form clearly explains that the word "attorney,” as it is used in the form and in Rule 32.6(a), means the petitioner’s counsel, i.e., his attorney-at-law.


author: PER CURIAM.

text:
    Daniel Harris DIXON v. CITY OF MOBILE.
    CR-02-0669.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Daniel Harris Dixon, pro se.
    Denise Baschab, Mobile, for appellee.
   PER CURIAM.

The appellant, Daniel Harris Dixon, appeals the dismissal of his de novo appeal to the Mobile Circuit Court. Dixon was convicted of violating municipal ordinance no. 39-1, by violating a “no-contact” order. (Ordinance no. 39-1 embraces § 30-5A-3(c)(1), Ala.Code 1975, part of what is commonly referred to as the Family Violence Protection Order Enforcement Act.) He was sentenced to 180 days in the city jail. Dixon then appealed the municipal court’s ruling to the circuit court for a trial de novo. At the time that Dixon’s case was called for trial, Dixon was not in the courtroom, and an alias warrant was issued for his arrest. Dixon was subsequently arrested and his de novo appeal was reinstated. The City of Mobile then moved for a dismissal of the de novo appeal and to return for enforcement of the municipal court’s judgment because Dixon had offered no reason for being absent from the courtroom at the time that his case was called for trial. The circuit court granted the City’s motion; this appeal followed.

The question presented by this case is whether the circuit court’s ruling dismissing the de novo appeal is appeal-able to this Court. The appellate jurisdiction of this Court is addressed in § 12-3-9, Ala.Code 1975. This section states:

“The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, habeas corpus and all felonies, including all post conviction writs in criminal cases.”

Amend. No. 328, § 6.03(d), Ala. Const. 1901, specifically addresses the original jurisdiction of this court.

In Alabama, there is no constitutional right to appeal a conviction. That right is provided solely by statute in § 12-22-130, Ala.Code 1975. This statute states:

“A person convicted of a criminal offense in the circuit court or other court from which an appeal lies directly to the Supreme Court or Court of Criminal Appeals may appeal from the judgment of conviction to the appropriate appellate court.”

Amend. No. 328, § 6.03(a), Ala. Const. 1901, also provides that this Court may obtain appellate jurisdiction by a rule of court adopted by the Alabama Supreme Court. This provision states:

“The court of criminal appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.”

As we stated in State v. Bibby, 47 Ala.App. 240, 243, 252 So.2d 662, 664 (Ala.Crim.App.1971):

“[T]here is no inherent or inalienable right of appeal. Appeals ... were unknown to the Common Law at the time of the migration of our forebears. Hence, it has become a familiar saw among legal writers to say that appeals are solely the creatures of statute.”

“The right of appeal is wholly statutory and is authorized in criminal cases from a judgment of conviction.” McCray v. State, 46 Ala.App. 588, 589, 246 So.2d 475, 476 (Ala.Crim.App.1971). “Appeals lie only from judgments of conviction, and then only on those counts upon which there is a finding of guilt.” Thornton v. State, 390 So.2d 1093, 1096 (Ala.Crim.App.1980). “An appeal cannot be taken from an order subsequent to the judgement of conviction unless authorized by statute.” Harris v. State, 44 Ala.App. 632, 632, 218 So.2d 285, 286 (1969). All statutes that authorize appeals are to be strictly construed. See Wood v. Birmingham, 380 So.2d 394 (Ala.Crim.App.1980).

Appeals from judgments entered in municipal courts are addressed in § 12-14-70, Ala.Code 1975. Section 12~14-70(c) states, in part:

“(c) Defendant may appeal in a case within 14 days from the entry of judgment by filing notice of appeal and giving bond, with or without surety, approved by the court or the clerk in an amount not more than twice the amount of the fine and costs, as fixed by the court....”

Section 12-14-70(f), further provides:

“(f) Upon failure of an appellant to appear in the circuit court when the case is called for trial, unless good.cause for such default is shown, the court shall dismiss the appeal and upon the expiration of 30 days from such date, unless the dismissal is set aside, the circuit clerk shall return the file, with a copy of the order of dismissal, to the clerk of the court from which the appeal was taken and the judge of such court may enter judgment of default on the appeal bond by utilizing the procedures set forth in Section 15-13-81. The circuit court may, on motion of the defendant made within 30 days of the order of dismissal, set aside the dismissal and other orders and reinstate the appeal on such terms as the court may prescribe, for good cause shown by defendant.”

Pursuant to this statute it is clear that an appellant can forfeit his or her right to a de novo appeal from municipal court by failing to appear when their case is called for trial. See also Rule 30.5, Ala.R.Crim.P.

We can find no statute or rule of court authorizing the appeal of a circuit court’s dismissal of a de novo appeal and the return of the case to the lower court for enforcement of that court’s judgment. This action is not an appeal from a final judgment of conviction entered in the circuit court but is instead an appeal from a ruling dismissing a de novo appeal from a judgment of conviction entered in a municipal court.

We realize that this Court has in the past treated these actions as appeals from the circuit court’s failure to reinstate a de novo appeal. See Kim v. State, 770 So.2d 1114 (Ala.Crim.App.2000), and Riddle v. State, 641 So.2d 1316 (Ala.Crim.App.1994). However, both this Court and the Alabama Supreme Court have held that rulings like the one in this case are subject to review by way of a petition for a writ of mandamus filed pursuant to Rule 21, Ala.R.App.P. See Ex parte Weeks, 611 So.2d 259 (Ala.1992), and Ex parte Swoope, 724 So.2d 92 (Ala.Crim.App.1998). Because we can find no statute or rule of court authorizing an appeal to this Court from a circuit court’s refusal to reinstate a de novo appeal, there is no right to appeal that ruling and we have no jurisdiction to consider this case.

For the reasons stated above, this appeal is due to be, and is hereby dismissed.

APPEAL DISMISSED.

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

BASCHAB, J., recuses herself.

      . Although the Court in Weeks did not specifically address this issue, its grant of the mandamus petition was an implicit ruling that mandamus was the appropriate vehicle to review the issue. The Weeks court did note that the time for filing a notice of appeal had expired; however, a "writ of mandamus is not a substitute for an appeal and will not lie where there was a remedy by appeal.” Ex parte Moore, 601 So.2d 1059, 1059 (Ala.Civ.App.1992).

      . In Swoope this Court relied on Ex parte Lawson, 578 So.2d 1052 (Ala.1991), in order to consider the matter by way of a mandamus petition. However, our reliance on that case was misplaced. The Supreme Court in Lawson ultimately decided to dismiss the mandamus petition and treat the action as a certiorari petition because the same issue was involved in both the certiorari petition and the mandamus petition.