text:
    L.M.J. v. J.I.J.
    2010454.
    Court of Civil Appeals of Alabama.
    Nov. 1, 2002.
    Robert T. Ray, Fort Payne, for appellant.
    John D. Coggin of Coggin & Associates, Centre, for appellee.
   CRAWLEY, Judge.

L.M.J. (“the mother”) and J.I.J. (“the father”) were divorced in December 2000. The divorce judgment awarded the parties joint legal custody of their daughter, L.J. (“the daughter”), and awarded the mother sole physical custody, subject to the father’s right of visitation. In late December 2001 or early January 2002, while the daughter and her half sister, L.P., were visiting with the father at the residence of the father’s girlfriend, K.B., the girlfriend’s son, R.B., allegedly touched both girls inappropriately. Visitation with the father continued until April 2002, when the mother informed the father that the daughter would no longer visit with him.

The father then filed the first of three contempt petitions alleging that the mother had refused the father visitation and requesting that the mother be held in contempt and that the father be awarded sole physical custody of the daughter. The mother answered the petition in May, and, in June, she filed a counterclaim, for the first time alleging that R.B. had molested the daughter. In July, the parties reached an agreement whereby the children involved would receive an independent evaluation and counseling, the father’s visitation would resume, and the daughter would not be in the presence of R.B.

Despite this agreement, the father’s visitation did not resume. In fact, although the father’s regular visitation weekend was June 22, the mother did not permit him to visit with the daughter that weekend or during any weekend in July. In August, the father filed his second petition for contempt. The father was permitted an overnight visitation on Friday, August 17. The father had to work on Saturday, August 18, so he returned the daughter to the mother early Saturday morning.

At a hearing on the second petition in September, the mother testified concerning the daughter’s behavior when she was told she had to go to visit with her father. The mother reported that the daughter exhibited signs of nervousness in the hours before visitation such as biting her fingernails, that the daughter would get so upset that she would vomit, and that she would pull away from the mother and run back into the house when they attempted to leave to visit the father. The daughter’s testimony at a later hearing was that she “threw a fit” each time she was told she had to visit with the father.

Debbie Burt, the forensic interviewer at the Children’s Advocacy Center in DeKalb County, testified that she had interviewed both the daughter and her half sister, L.P., and that she found their allegations that R.B. had molested them credible. She also reported that the daughter felt that her father did not believe her allegations, but she said that the daughter was not afraid of her father. Ms. Burt did note that the daughter had commented that she would like her father to visit with her at her mother’s house.

The father also testified at the September hearing. He explained that the mother had indicated to him in a telephone call in April that she no longer wanted him to visit with the daughter because he did not make his girlfriend’s children share with the daughter. He also said that the mother had telephoned his home to check on the daughter late in the evening of August 17; during that call, he said, she requested that he admit that the alleged molestation had occurred, and, when he refused, he said, she became verbally abusive and cursed at him.

The trial court ordered the mother to comply with the visitation provisions of the divorce judgment and ordered parties to attend counseling with Dr. David Wilson of Gadsden Psychological Services. The father complied with this order, and a report concerning his sessions with Dr. Wilson is in the record; however, neither the mother nor the child attended the scheduled sessions.

The father filed his third contempt petition on October 1, 2001. At the November hearing on that petition, the father testified that he had not exercised visitation between August 17 and October 5; on October 5, the mother, in response to the contempt petition, had allowed the daughter to visit with the father for the weekend. He again relayed his opinion that the alleged molestation never occurred. He also presented letters the daughter had written to R.B. and his girlfriend indicating that she loved them.

The mother testified, indicating again that she had refused to let the father see the daughter because, she said, the daughter did not want to attend visitation and because the father did not believe the daughter’s allegation that R.B. had molested her. The husband then played tape recordings of conversations between him and the mother. The first tape contained a conversation that allegedly occurred in May or June 2001, in which the father accused the mother of damaging property at his house. During the conversation, the mother denied these allegations. Both parties used profanity during the conversation. The second tape contained a conversation that allegedly occurred in April 2001 about why the mother was refusing to allow the father to visit with the daughter. During this long conversation, the mother referred repeatedly to the daughter’s “being run over” by the girlfriend’s children and the father’s not spending quality time with the daughter. The father, for his part, repeatedly asked the mother to allow him to speak with the daughter, despite the mother’s clear and continued denial of his request. Again, both parties eventually resorted to profanity to communicate.

The father’s counsel questioned the mother about disturbances at her home. Specifically, he asked about an incident involving a neighbor and her 15-year-old daughter, reports of harassing telephone calls, and an incident during which the mother was arrested. The mother explained that the harassing telephone calls she reported were made by the father. She commented that the other two problems, which involved a former boyfriend, had been resolved. She denied that the boyfriend had ever lived with her at her residence.

The mother’s mother, G.B. (“the grandmother”), also testified at the November hearing. She explained that she and the mother no longer had a good relationship; in fact, the mother successfully defended a grandparent-visitation action brought by the grandmother in Georgia. The grandmother testified that the mother’s reputation in the community was generally bad; specifically, the grandmother noted that the mother had a bad reputation concerning truthfulness and chastity and that she had a reputation as a troublemaker. The grandmother also opined that the mother would lie to get what she wanted and that the children would do whatever the mother told them to do because they were afraid of her. According to the grandmother, the mother had, when she lived with the grandmother in Georgia shortly before the divorce, left her children with the grandmother not only during the hours she worked, but also during the hours she was not working so that she could see her boyfriend. The grandmother opined that L.J. would be better off with the father.

The father’s girlfriend then testified. She denied that her son, R.B., would have molested L.J. or L.P. She explained that the children had always gotten along well and played together. Photographs of the children playing together appear in the record.

The daughter; her half sister, L.P.; the alleged molester, R.B.; and A.H., R.B.’s half sister all testified. Their accounts of what happened the night of the alleged molestation differ. R.B. remembers watching a Christmas-themed movie in the living room and playing “grocery store” and “school.” He denied touching either L.J. or L.P. in any inappropriate way. A.H., the older half sister of R.B., stated that the younger children had watched a movie while she and a friend who was visiting used the computer to access the Internet. She explained that the air mattress on which the children were playing was located directly behind the computer desk. She said that she had not seen anything and that none of the children had cried out or complained that there had been a problem.

The daughter testified that she, her half-sister, and R.B. had left the living room and that they had gone into R.B.’s room to play a game and that the alleged molestation occurred in R.B.’s room. She reported that R.B. had touched her and her sister’s “private” while they were all on his bed. She said that she and her half sister had gone into the girlfriend’s bedroom to report the incident to the father. According to the daughter, the father said “if we didn’t go back and lay down, we was gonna get our butt whipped.... But, actually, he used the curse word.” When the children returned to the girlfriend’s bedroom, according to the daughter, the girlfriend told them “[y]ou all go lay down. It’s okay. He can sleep with you right there — he can sleep with you all.” When questioned about exactly what she told her father, the daughter answered, “I told them that he was bothering me and my sister. That we couldn’t sleep because he was turning the TV on and off, and he wouldn't leave us alone where we could sleep.” When questioned specifically about whether she reported that R.B. had touched her inappropriately, she answered positively, “Uh-huh.”

The half sister also testified. Her report differed in some details. She recalls that A.H. was not present that evening because she had gone to spend the night with a friend. She remembers having to make R.B. allow her sister to play with the cash register and that they watched a movie or some music awards on television. According to the half sister, they went into R.B.’s room to look for a game. At that point, she said, R.B. touched her and then her sister in their “wrong spots.” Her account, however, included a description of R.B. getting on top of both girls and touching them, through his clothes, with his “privates.” She also reported telling the father and the girlfriend, who both responded, in her account, similarly to the way the daughter described.

The trial court found the mother in contempt, sentenced her to confinement in the county jail for five days for each visitation period she failed to deliver the child to the father (the order does not indicate the total number), and suspended that sentence provided she complied with the court’s further orders. In addition, the court awarded sole physical custody of the daughter to the father, subject to the mother’s visitation rights. The mother appeals, arguing that the trial court modified custody without a request for modification and that the trial court improperly modified custody on the basis of the parties’ continuing visitation dispute.

Although the record does not contain an actual modification petition, the father did request custody in his first contempt petition. In addition, the father clearly indicated in his testimony at the November hearing that he was seeking custody; the mother’s counsel did not object. William son v. Williamson, 391 So.2d 115, 118 (Ala.Civ.App.1980) (indicating that a failure to object to testimony on an issue supports a determination that the issue was tried by the consent of the parties). The court, shortly after the father’s testimony on his desire that he receive custody, also indicated that the issue of custody was under consideration. Therefore, we conclude that the issue of custody modification was before the court based on the father’s request in his contempt petition, or, at least, that it was tried by the consent of the parties at the November hearing. Rule 15(b); Williamson, 391 So.2d at 118.

The mother also argues that a visitation dispute, alone, is insufficient to justify a change in custody. Indeed, the law on that point is abundantly clear. Kelley v. Akers, 793 So.2d 821, 826-27 (Ala.Civ.App.2001); Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997); Means v. Means, 512 So.2d 1386, 1389 (Ala.Civ.App.1987); Pons v. Phillips, 406 So.2d 932, 935 (Ala.Civ.App.1981). In addition, to modify custody where one parent has been awarded physical custody to the exclusion of the other, a trial court must apply the standard set out by our supreme court in Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984). The McLendon standard is well settled. A parent seeking a change in custody must establish that the change would materially promote the interests and welfare of the child and that the benefits of the change in custody would “more than offset the inherently disruptive effect caused by uprooting the child.” King v. King, 521 So.2d 69, 70 (Ala.Civ.App.1988) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The trial court’s December judgment does not indicate what standard it applied to the father’s request for a change of custody in this case. However, at a brief hearing in June 2001, the trial court indicated its apparent belief that a change of custody would be an appropriate sanction for contempt. The court stated, “[violation of this order will result in sanctions ... against that person violating the order, which could include contempt or a change in custody, or other sanctions as [the court] may deem appropriate.” (Emphasis added.)

In light of the trial court’s failure to indicate in its judgment that it applied McLendon, the trial court’s comments, and the finding of contempt contained in the judgment, it appears that the trial court changed custody to the father as a sanction for the mother’s continued contempt of the visitation provisions of the divorce judgment and subsequent in-court agreements to permit visitation provided R.B. was not present. As discussed previously, visitation disputes, alone, are not a basis for a change of custody. Kelley, 793 So.2d at 826-27; Vick, 688 So.2d at 856; Means, 512 So.2d at 1389; Pons, 406 So.2d at 935. In addition, the record, although clearly indicating that the mother has not adhered to the visitation schedule, does not contain evidence sufficient to compel the conclusion that a change of custody would materially promote the daughter’s best interests. See Ex parte McLendon, 455 So.2d at 866. For that reason, even if the trial court had applied the McLendon standard, this court could not affirm its judgment. Therefore, we reverse the judgment awarding custody to the father and remand the case for the entry of a judgment denying the modification.

REVERSED AND REMANDED.

PITTMAN and MURDOCK, JJ., concur.

YATES, P.J., and THOMPSON, J., concur in the result.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    BOMBARDIER CAPITAL, INC. v. Marian WILLIAMS and Shontrice Williams.
    2010350.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.
    Barre C. Dumas of Dumas & McPhail, L.L.C., Mobile, for appellant.
    Lynn W. Jinks III and Christina D. Crow of Jinks, Daniel, Crow & Seaborn, L.L.C., Union Springs, for appellees.
   PITTMAN, Judge.

This is an appeal from the trial court’s judgment in an action to recover a mobile home after the owner defaulted on her payments.

On June 28, 2001, Bombardier Capital, Inc. (hereinafter “Bombardier”), sued Marian Williams and Shontrice Williams. Marian Williams was sued for having defaulted on payments due under a retail installment contract by which she financed the purchase of a mobile home from Landmark Mobile Homes (hereinafter “Landmark”). Williams filed an answer, asserting various defenses to the complaint. On the same day, Williams also filed a motion for a set-off. The motion stated that Williams had already secured an arbitration award of $39,442.23 against Landmark and then asserted that Williams was entitled to a set-off of this amount against the amount claimed by Bombardier. The trial court, without a hearing on the matter, granted the motion for a set-off, and ordered Williams to pay Bombardier $393.89, and ordered Bombardier to tender title to the mobile home to Williams and to cancel the lien against the title. Bombardier filed a motion to reconsider the order granting the set-off, and the trial court took no action on it. Bombardier then filed a motion to alter, amend, or vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P. The trial court held a hearing on the motion, and purportedly-denied the motion with a written order. Bombardier appeals.

Bombardier argues that by the language of the Federal Trade Commission (“FTC”) holder rule, and the caselaw interpreting that rule, the set-off ordered by the trial court is impermissible because it exceeds the allowable recovery under the FTC holder rule. Additionally, Bombardier argues that the trial court erred by allowing the Williams to keep the mobile home in question and by ordering Bombardier to tender title to the mobile home to Williams and to cancel its lien against said title. However, we do not reach those arguments here.

In Payne v. City of Athens, 607 So.2d 292, 293 (Ala.Civ.App.1992), this court stated:

“This court obtains jurisdiction over an appeal only after a timely notice of appeal has been properly filed with the clerk of the trial court. Rule 4(a)(1), Alabama Rules of Appellate Procedure .... The 42-day period for filing an appeal begins to run from the date on which the trial court entered its final order. Rule 4(a)(1), [Ala. R.App. P.] The time for appeal may be suspended by the filing of a Rule 59(e), Alabama Rules of Civil Procedure, motion. No suspension occurs if the motion is not filed within SO days of the entry of final judgment. Rule 59(e). If the motion is timely filed, the time for taking an appeal begins to run from the date of entry of an order granting or denying the motion. Rule 4(a)(3), [Ala. R.App. P.] If a Rule 59(e) motion is not ruled on within 90 days, it is deemed denied by operation of law on the 90th day and appeal must be taken within the next 42 days. Rule 59.1, [Ala.] R. Civ. P.; Rule 4(a)(1), [Ala. R.App. P.]”

The trial court issued its final judgment on July 31, 2001. The trial court received two postjudgment motions within 30 days of its July 31, 2001, judgment. The 90-day period for ruling on the last motion expired on November 19, 2001, and Bombardier’s postjudgment motion was deemed denied by operation of law on that date. See Rule 59.1, Ala. R. Civ. P. The 42-day period for filing a notice of appeal began to run on November 19, 2001, the date that the last viable postjudgment motion was denied by operation of law. Landers v. Landers, 812 So.2d 1212 (Ala.Civ.App.2001). The time for taking an appeal expired on January 2, 2002. Bombardier did not file their notice of appeal until January 9, 2002. Thus, we must dismiss the appeal as untimely.

APPEAL DISMISSED.

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

      . Shontrice Williams's inclusion in the complaint was based on his possession of the mobile home. He was not, however, a signatory to the retail installment contract that is the basis of this appeal.

      . The trial court, according to our calculation, would have arrived at this amount by subtracting the $39,442.23 arbitration award against Landmark from the $39,836.12 claimed by Bombardier in their suit against the Williams.

      . As noted above, the trial court purported to deny Bombardier’s postjudgment motion on December 13, 2001. However, because the 90-day period had already passed, the trial court lacked jurisdiction to rule on the motion.

      . Forty-two days from November 19, 2001, is December 31, 2001. That year both December 31, 2001, and January 1, 2002, were holidays, therefore the last day to file the appeal would be January 2, 2002. Rule 6(a), Ala. R. Civ. P.


author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Cara Wilson SHARPLESS, n/k/a Cara J. Jernudd v. Michael C. SHARPLESS.
    2010554.
    Court of Civil Appeals of Alabama.
    Nov. 8, 2002.
    David P. Shepherd, Fairhope, for appellant.
    Stephen P. Johnson of Brackin & McGriff, P.C., Foley, for appellee.
   CRAWLEY, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App. P.; Ex parte Patronas, 693 So.2d 473 (Ala.1997); Hughes v. Hughes, 685 So.2d 755 (Ala.Civ.App.1996); Spry v. Ikerd, 646 So.2d 131 (Ala.Civ.App.1994); Thompson v. Wright, 613 So.2d 1289 (Ala.Civ.App.1992); and Haygood v. Haygood, 581 So.2d 870 (Ala.Civ.App.1991).

The appellee’s request for an attorney fee on appeal is granted in the amount of $500.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

Based upon my review of the evidence in this case, and based upon the manner in which the trial court explained its holding, I am not persuaded that the trial court properly applied what is commonly referred to as the “material promotion” standard recognized in Ex parte McLendon, 455 So.2d 863 (Ala.1984). I therefore respectfully dissent.


author: PER CURIAM. COBB, Judge

text:
    Thomas HUDMON v. STATE of Alabama.
    CR-00-0959.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2001.
    Rehearing Denied Nov. 21, 2001.
    Certiorari Denied Nov. 8, 2002 Alabama Supreme Court 1010544.
    Donald R. Cleveland, West Point, Georgia, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, p.j., and WISE, J., concur; BASCHAB, J., concurs in the result; COBB, J., concurs in part and dissents in part, with opinion, in which SHAW, J., joins.

COBB, Judge

(concurring in part and dissenting in part).

I concur in affirming the appellant’s conviction; however, I would reverse his sentence and remand the case for resen-tencing in accordance with Judge Shaw’s special writing in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001), with which I concurred as to this issue. As to those points on which I disagree with Judge Shaw, see my special writing in Poole, 846 So.2d 398. I believe that these sentence enhancements must be charged in the indictment and proved to the jury beyond a reasonable doubt, and that the failure to do so is a jurisdictional defect which this Court should notice and remedy on appeal. Therefore, as to the sentencing issue, I dissent.


author: PER CURIAM.

text:
    Ex parte CITY OF TARRANT. (In re City of Tarrant v. Ricky Delane Hogan).
    CR-01-0316.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Rehearing Denied April 26, 2002.
    Certiorari Denied Nov. 8, 2002 Alabama Supreme Court 1011557.

      M. David Barber, district atty., for appellant.
    E. Shane Black, Birmingham, for appel-lee.
   PER CURIAM.

The City of Tarrant (“City”) filed this petition for a writ of mandamus directing Judge David Lichtenstein to vacate his order dismissing the charges against Ricky Delane Hogan. On February 23, 2001, Hogan was convicted in the municipal court for the City of resisting arrest, disorderly conduct, and criminal mischief. On the same day he filed notices of appeal for a trial de novo in the circuit court. On March 30, 2001, Hogan was convicted in the municipal court for two counts of assault; he filed notices of appeal for a trial de novo on those charges also. Accompanying Hogan’s notices of appeal were appeal bonds. Fourteen days after the municipal judge approved the appeal bonds, the City transmitted the municipal court records to the circuit court. See Rule 30.4, Ala.R.Crim.P. On September 24, 2001, all of Hogan’s cases were called for trial in the circuit court. A jury was empaneled and the court recessed for the day. The next morning, Hogan moved that the charges be dismissed because, he argued, the City failed to transmit the records to the circuit court within the time period provided in Rule 30.4. The trial court held a hearing, granted Hogan’s motion, and dismissed the charges. This petition followed.

Initially, we must determine if a petition for a writ of mandamus is the appropriate manner by which to review the ruling in this case. The City has the right to appeal only certain pretrial rulings dismissing a case. See Rule 15.7, Ala. R.Crim.P. Once jeopardy has attached, the City no longer has the right to appeal under Rule 15.7. The City’s only remedy at that point is to file a petition for a writ of mandamus. The Alabama Supreme Court in Ex parte Sullivan, 779 So.2d 1157 (Ala.2000), noted that mandamus is available to review a trial court’s dismissal of a case once jeopardy has attached. The Court stated:

“The power of an appellate court of this state to issue a writ of mandamus at the request of the State in a criminal case when the Legislature has not provided the remedy of appeal is not unqualified. We have said:
“ ‘Casual resort to mandamus cannot be permitted to undermine an accused’s right against double jeopardy, and only the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of mandamus to further important countervailing public interests.’
“Ex parte Nice, 407 So.2d [874] at 880 [ (Ala.1981) ] (citations omitted) (emphasis omitted). Clearly, a writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this writ is necessary to protect the proper judicial administration of the courts.”

Ex Parte Sullivan, 779 So.2d at 1161. This case is properly before us by mandamus petition; thus, we will proceed to the merits of the case.

The question presented in this petition is when is an appeal from a municipal court to the circuit court deemed perfected — a date that triggers the running of the time for the municipal court to file its records with the circuit court. Rule 30.3, Ala.R.Crim.P., addresses the procedure for appealing a case from a municipal court. Rule 30.3(b) states:

“An appeal from the municipal or the district court for trial de novo in the circuit court shall be perfected by the timely filing of a written notice of appeal and the posting of a new bond in an amount fixed by the municipal or district judge, conditioned upon the defendant’s appearance before the circuit court, as well as the payment of all costs incurred in the municipal or the district court and on appeal in the circuit court; provided, however, that the court may ■authorize the defendant’s release on the defendant’s personal recognizance without any undertaking relating to, or deposit of security in lieu of, an appear-anee and cost bond.
• “A defendant sentenced to imprisonment and not released from custody on bond or personal recognizance may obtain release pending an appeal at any time by filing a bond approved by the municipal or the district court. If the defendant remains in custody, the prosecutor shall so notify the circuit court clerk, and the case shall be set for trial at the earliest practical time.”

(Emphasis added.)

’ Rule 30.4(a), Ala.R.Crim.P., states the municipality’s obligation once Rule 30.3(b) has been invoked. This Rule states:

“Within fourteen (14) days after the appeal to the circuit court for trial de novo is perfected as provided by Rule 30.3(b), the clerk of the municipal or district court shall transmit to the clerk of the circuit court such records of the proceedings as are in the municipal or district court clerk’s possession, including the original charging instrument. If the appeal is from a municipal court and the clerk thereof shall fail to transmit such records to the clerk of the circuit court within the time prescribed, the municipality shall be deemed to have abandoned the prosecution; the defendant shall stand discharged, with prejudice; and any bond shall be automatically terminated.”

Here, Hogan filed notices of appeal and appeal bonds on the same day he was convicted. However, the bonds were not approved by the municipal judge until four days later. The municipal court transferred its records 14 days after the bonds were approved by the municipal judge.

The City argues that the circuit court misinterpreted Rule 30.4. The City argues that Hogan’s appeal was not perfected, within the meaning of Rule 30.3, until the appeal bond was approved by the municipal judge. It asserts that it has no obligation to transmit its records until the appeal was “perfected” — four days after the notices of appeal and the appeal bonds were filed.

Hogan argues that the circuit court correctly dismissed the charges against him after finding that the City abandoned its appeal when it failed’ to file the records within 14 days of the filing of the notices of appeal and appeal bonds.

In Ex parte City of Fort Payne, 639 So.2d 1347 (Ala.1994), the Alabama Supreme Court noted that it was amending Rule 30.3, Ala.R.Crim P., to state that the municipal court records were to be filed within 14 days after the appeal was “perfected.” Prior to this revision, Rule 30.3 provided that the records were to be filed within 14 days of the filing of the notice of appeal. No mention was made of an appeal bond. This Court in Ex parte Fort Payne, 628 So.2d 1036 (Ala.Crim.App.1993), urged the Alabama Supreme Court to amend Rule 30.3 to make it consistent with § 12-14-70, Ala.Code 1975 — the statute addressing the same subject. Section 12 — 14—70(c) states:

“A defendant may appeal in any 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, or in the event no fine is levied the bond shall be in an amount not to exceed $1,000.00, as fixed by the court, conditioned upon the defendant’s appearance before the circuit court. The municipal court may waive appearance bond upon satisfactory showing that the defendant is indigent or otherwise unable to provide a surety bond. If an appeal bond is waived, a defendant sentenced to imprisonment shall not be released from custody, but may obtain release at any time by filing a bond approved by the municipal court. If defendant is not released, the prosecutor shall notify the circuit clerk, and the case shall be set for trial at the earliest practicable time.”

According to § 12-14-70, an appeal to the circuit court from the municipal court is not perfected until (1) a notice of appeal has been filed and (2) an appeal bond has been set and approved by the municipal court or the clerk.

Although § 12-14-70 has been modified in part by the Supreme Court’s adoption of Rule 30.3, this statute still has a field of operation. See Committee Comments to Rule 30.3. “[Rjules and statutes relating to the same subject matter must be read in pari materia, thus allowing for legal harmony where possible!” State ex rel. Daw, 786 So.2d 1134, 1136 (Ala.2000), citing Burlington Northern R.R. v. Whitt, 611 So.2d 219, 222 (Ala.1992). The statute plainly states that an appeal bond must be approved by the municipal court or clerk.

After reading Rule 30.3 and § 12-14-70 together, the conclusion is clear— before an appeal from a municipal court to a circuit court can be perfected, a written notice of appeal and an appeal bond approved by the municipal court or the clerk must be filed with the municipal court clerk’s office. Only then does the time for filing the municipal court records begin to run.

We also find support for this view in the wording of Rule 30.3(b). It states, “An appeal from the municipal or the district court for trial de novo in the circuit court shall be perfected by the timely filing of a written notice of appeal and the posting of a new bond in an amount fixed by the municipal or district judge.... ” ( Emphasis added.) The requirement that a new bond be posted in an amount fixed by the municipal judge implies that the judge has first approved that bond.

Also, the sample forms following the Rules of Criminal Procedure contain a form for an appeal from a district court to a circuit court. See Form C-37, Ala. R.Crim.P. This form contains a section designated as “Appearance and Cost Bond.” This section contains a space for either a judge, clerk, or magistrate to sign indicating his or her approval of the bond. Before a writ will issue the petitioner must establish (1) a clear legal right to the relief sought; (2) an imperative duty upon the petitioner to the relief sought; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See Ex parte Department of Human Res., 620 So.2d 619, 620 (Ala.1993). The City has met its burden here.

This petition is due to be granted. Judge Lichtenstein is directed to set aside his order of dismissal and to reinstate Hogan’s de novo appeals to the circuit court’s docket.

PETITION GRANTED.

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

SHAW, J., concurs in .the result.

      . All five convictions in the municipal court resulted from the same series of events that occurred on October 7, 2000.

      . We have noted that Rule 30.4 has no application to appeals from rulings by a district court. See State v. Luttrell, 707 So.2d 290 (Ala.Crim.App.1997). That rale contains a penalty only for the municipality’s failure to file the records with the circuit court.

      . Rule 36, Ala.R.Crim.P., provides that the sample forms contained in the Appendix to the Rules of Criminal Procedure have not been "approved or adopted by the Alabama Supreme Court.”


author: SHAW, Judge.

text:
    D.P. v. STATE of Alabama.
    CR-00-1564.
    Court of Criminal Appeals of Alabama.
    March 22, 2002.

      W. Gregory Hughes, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, D.P., was convicted of rape in the first degree, a violation of § 13A-6-61(a)(l), Ala.Code 1975, and of burglary in the first degree, a violation of § 13A-7-5, Ala.Code 1975. The victim was his ex-wife, T.H. The appellant was sentenced to 20 years’ imprisonment for each conviction, the sentences to run concurrently. The sentences were split, and he was ordered to serve a total of five years in confinement followed by five years on probation.

At trial, T.H. testified that she and the appellant had been married for approximately seven years, from 1989 until 1996; that their divorce had been amicable; and that the appellant often visited her children (one of whom was also the appellant’s child) at her mobile home after the divorce, but that the appellant did not have a key to the mobile home. T.H. testified that on the night of January 20, 2000, she locked the doors to the mobile home and went to bed at approximately 9:30 p.m. Sometime later, she said, she was awakened when she heard someone entering the front door and then felt someone getting into bed with her. T.H. said that, at first, she thought it was her boyfriend, who lived with her, but that the person called her by her middle name, and she realized that it was the appellant because only the appellant called her by her middle name. At that point, T.H. said, she got out of bed, and the appellant grabbed her and pushed her back down on the bed. T.H. testified that she and the appellant struggled for about 15 minutes before he finally overwhelmed her and raped her. The ’ appellant’s defense at trial was consent.

The appellant raises five issues on appeal; however, because of our disposition of this case, we need address only his first issue at this time. The appellant contends that the trial court erred in denying his motion to compel production of T.H.’s mental-health records. The appellant argues that although the records are privileged by § 34-26-2, Ala.Code 1975, they were essential to his attack on T.H.’s credibility and, he says, the trial court’s denial of his motion to compel production of the records denied him the right to confront his accuser.

Before trial, the appellant filed a written motion to compel the production of T.H.’s mental-health records. The appellant argued that T.H. had been an outpatient at a mental-health facility approximately six months before the incident giving rise to the present charges occurred and that the records from that treatment may have contained information relevant to his defense of consent. After a hearing, during which T.H. asserted her privilege to keep the records confidential, the trial court denied the motion. The appellant then filed a written motion to reconsider the earlier denial of his motion to compel, and the trial court held another hearing. During that hearing, the following occurred:

“THE COURT: So, do you [prosecutor] have a position?
“[Prosecutor]: I do, sir. I would have no objection if the defendant would allow me to subpoena any mental health records and the marriage counsel records, any therapy records, any records from hospitals, inpatient or outpatient since 1995.
“[Defense counsel]: Judge, they don’t have a Sixth Amendment right to confront the defendant and—
“THE COURT: Well, but I mean it seems in fairness that you do one, you do the other.
“[Defense counsel]: Well, Judge, I’m not going to agree to that. That’s—
“THE COURT: Well, then I’m not going to grant your motion. That’s my discretion.
“[Defense counsel]: Well, Judge, it’s not unbridled. If I could have [a] second to talk to my client and see what he wants to do.
“THE COURT: And you say you want to use them to attack her credibility? Well, what do you want to use them for?
“[Defense counsel]: To attack her credibility, Judge, but again, I haven’t seen the records and without seeing them—
“THE COURT: Furthermore there is nothing in the records to suggest that DIF [sic], that’s the person who was suffering from an emotional mental defect that would have materially affected the accuracy of his testimony or affected his ability to know and correctly relate the truth to justify — well, you know, I guess I have to look at them, but at this point I’m going to deny your motion. When did you file your motion?
“[Defense counsel]: Judge, my subpoena was filed probably a month ago. I mean this has just been — I filed my original motion to compel probably three weeks ago and then the clerk set it for last—
“THE COURT: When was arraignment? Well, it might be that I should look at them, but at this point I can’t tell. It looks to me like both of you want to use records against each other’s credibility and you can’t concede that she has the right to look at your records and you say it’s a different issue. But I’m going to deny it.”

(R. 11-14.) The record does not reflect that the trial court ever looked at the records to determine whether they would be helpful to the defense in attacking T.H.’s credibility.

In addressing an identical issue in Schaefer v. State, 676 So.2d 947 (Ala.Crim.App.1995), this Court stated:

“The appellant appeals, raising nine issues. However, at this time, we address only the issue whether the trial court committed reversible error in denying the appellant’s motion to produce [the victim’s] psychiatric records and the records pertaining to [the victim] in the files of the Alabama Department of Human Resources. The appellant contends that [the victim] is a ‘habitual liar’ with a history of mental instability and that his records were necessary for purposes of cross-examination to impeach his credibility. The trial court held, and the state now contends, that the records were privileged and that their production for confrontation purposes was prohibited by statute.
“The records are privileged pursuant to §§ 12-15-100 and -101, 15-23-41 and -42, and 34-26-2. The appellant argues that his Sixth Amendment right of confrontation outweighs the statutory privilege and the victim’s right to confidentiality. A witness’s claim of a statutory privilege may, under certain circumstances, violate a defendant’s Sixth Amendment rights of confrontation and cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983); Ex parte Lynn, 477 So.2d 1385 (Ala.1985); Kirby v. State, 581 So.2d 1136 (Ala.Cr.App.1990); Thornton v. State, 527 So.2d 143 (Ala.Cr.App.1987), cert. quashed, 527 So.2d 146 (Ala.1988).
“The issue presented here is whether, under the circumstances of this case, denial of access to the privileged records deprived the appellant of his right of confrontation. We adhere to the principle that the opportunity for cross-examination is central to the right of confrontation. However, this does not mean that records of this type must be disclosed simply because they relate to a key state’s witness whose claimed lack of credibility is the foundation of the defense. There are strong public policy reasons for maintaining the confidentiality of such records. In this state, where a party’s right of discovery has come into conflict with a communication that is the subject of a statutory privilege communication, the courts have decided the issue on the facts of each particular case or, in other words, on a case-by-case basis. Ex parte Rudder, 507 So.2d 411 (Ala.1987); Kirby v. State. The reasons for confidentiality must in each case be weighed against the defendant’s right to bring to the jury’s attention facts affecting the witness’s credibility. Davis v. Alaska. Access to such records must be left to the discretion of the trial court, which is better able to assess the probative value of the evidence contained in the records as it relates to the particular case before the court, and to weigh that value against the interest in the confidentiality of the records. In order to determine whether the records contain exculpatory or impeachment evidence that should be disclosed, the trial court of necessity must examine the records. That examination should be in camera. See Kirby v. State, where we suggested the procedure be used. The trial court should also make specific findings, and the privileged records should be made a part of the trial record for purposes of appeal. In this case, the trial court refused to order the production of the records for an in camera inspection and, thus, no examination was made.
“We find that there is sufficient evidence in the record to warrant an in camera examination by the trial court of the privileged records for the purpose of discovering whether disclosure of any material relevant to the issue of credibility of the witness is appropriate in this ease. We, therefore, remand this cause to the trial court with instructions that that court conduct an in camera examination of the records ... pertaining to [the victim] and to determine if those records contain any exculpatory or impeachment evidence that would bear upon the question of the appellant’s guilt and the credibility of [the victim].”

676 So.2d at 948-49 (brackets and emphasis added). See also Kirby v. State, 581 So.2d 1136 (Ala.Crim.App.1990).

Similarly, here, we find that an in camera examination by the trial court of the privileged records is warranted in this case to determine whether those records contain any material relevant to the issue of T.H.’s credibility and whether disclosure of these records would have been appropriate in this case. T.H. claimed that the appellant raped her; the appellant’s defense was consent. In his motion to compel production and at the hearing on the motion, the appellant alleged that attacking T.H.’s credibility was an essential part of his defense and that he believed T.H.’s mental-health records contained information relevant to her credibility. Because a central issue in this case was T.H.’s credibility, the trial court’s statement during the second hearing that it should inspect the records before ruling on the appellant’s motion was correct. However, as noted above, nothing in the record indicates that the trial court did, in fact, inspect the records, and those records are not included in the record on appeal for this Court’s review. Moreover, we note that the record indicates that the trial court denied the appellant’s motion to compel the records in part because the appellant was not willing to waive his privilege with respect to similar records. However, as this Court pointed out in both Schaefer and Kirby, a claim of statutory privilege may,- in some cases, violate a defendant’s Sixth Amendment right to confrontation and cross-examination and the determination whether the privilege outweighs a defendant’s Sixth Amendment rights is a balancing process — the reasons for the privilege must be weighed against the defendant’s right to present evidence affecting the credibility of witnesses. A defendant’s decision not to waive his statutory privilege is not a part of this balancing process and cannot be used against a defendant in determining whether the privilege outweighs the right to confrontation and cross-examination.

We do not hold that an in camera inspection of privileged documents is always necessary before a trial court denies a defendant’s motion to compel production. Rather, we hold that when a defendant sufficiently alleges that privileged documents may contain evidence relevant and material to an issue in the case, the trial court should inspect the documents in camera before ruling on the defendant’s motion. We note that in Schaefer, this Court stated that there was “sufficient evidence in the record to warrant an in camera examination” of the requested records. 676 So.2d at 949 (emphasis added). That language was not meant to impose a burden on a defendant to actually present “evidence” in order to obtain production of privileged documents; rather, it was meant to place the burden on a defendant to sufficiently allege the relevance and materiality of the evidence that he or she is requesting be produced.

We agree with the appellant that the trial court in this case abused its discretion in refusing to examine T.H.’s mental-health records before denying the appellant’s motion to compel the production of those records. Therefore, we remand this case to the trial court for it to conduct an in camera inspection of T.H.’s mental-health records and to make specific findings regarding (1) whether the records contain material relevant to T.H.’s credibility, and, (2) if so, whether, after weighing the reasons for the privilege against the appellant’s right to confrontation and cross-examination, disclosure would have been appropriate in this particular case. A return to remand shall be filed with this Court within 56 days of the release of this opinion. The return to remand shall include the trial court’s written findings, a transcript of any proceedings conducted on remand, and T.H.’s mental-health records.

We pretermit discussion of the appellant’s other issues pending the trial court’s return to our remand order.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. WISE, J., dissents, without opinion.

      . See also Rule 503, Ala.R.Evid.

      . The State argues on page 5 of its brief to this Court that "[t]he trial judge on a motion to reconsider stated that there was nothing in the records to suggest that the person was suffering from an emotional mental defect that would materially affect the accuracy of the testimony or the ability to relate the truth. (Hearing R. 13).” The State also argues on page 6 of its brief: "Here, the court reviewed the records deciding that there was nothing that would relate to or affect the victim's credibility.... The trial court is better able to assess the probative value of the evidence contained in the records as it relates to the particular case before the court and to weigh that value against the interest in the confidentiality of the records.” We can find no statement by the trial court on that page referenced by the State suggesting that the trial court had reviewed T.H.'s mental-health records. It does appear that the trial court may have made a reference to the records discussed in Schaefer, because it stated, "Furthermore, there is nothing in the records to suggest that DIF....” The victim in Schaefer was referred to in the opinion as "D.L.F.”


author: BASCHAB, Judge. COBB, Judge,

text:
    Alfred ALLEN v. STATE of Alabama.
    CR-01-0516.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied Aug. 2, 2002.
    Gregory M. Varner, Ashland, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW and WISE, JJ., concur; COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I believe the majority in its unpublished memorandum has erroneously determined that Alfred Allen was in constructive possession of the marijuana found in the residence. The police obtained and executed the warrant, searching, not for marijuana, but for cocaine, which they suspected Allen was selling. At trial, none of the evidence tended to establish that Allen had control of, or intended to exert control over, the marijuana found in the residence as a result of the search. None of the evidence tended to show: 1) when the marijuana was brought into the residence; 2) whether Allen had knowledge of the presence of the marijuana; or 3) whether Allen had been present while the marijuana was there or at any time after the marijuana was brought into the residence. To the contrary, all four of the officers who testified stated that: 1) they had no knowledge as to who smoked the marijuana-filled blunts; or 2) they never saw Allen with the blunts. Although four officers testified that each had seen Allen in the front yard in the weeks leading up to the search, one as recently as two or three days before the search warrant was executed, none of them testified that they had ever seen Allen actually enter the residence. This despite the fact that the officers conducted a lengthy surveillance of the property, with one officer testifying that he had observed Allen in the front yard more than 5 but fewer than 25 times.

Upon execution of the search warrant, the officers discovered two appearance bonds in Allen’s name in the front bedroom of the residence. Those appearance bonds, along with some 45-caliber bullets and men’s clothing, were the only items discovered in the bedroom the prosecution contended was Allen’s bedroom. However, there was no evidence that Allen had ever owned, or was ever found to be in possession of, a 45-caliber firearm. The officer who testified about the men’s clothing testified that he could not remember the size of the clothing, nor was there any testimony that Allen claimed ownership of any of the items discovered in the residence. No drugs or residue were discovered in the front bedroom where the appearance bonds, bullets, and men’s clothing were found.

Additionally, the officers’ testimony revealed that one piece of crack cocaine was found in the bedroom believed to be occupied by a different person, John Walker, that the blunts and the marijuana residue were discovered in different rooms on the other side of the residence, and that there were no drugs or residue discovered in the bedroom believed to be occupied by Allen. Compare with Linville v. State, 634 So.2d 601 (Ala.Crim.App.1993)(the State presented sufficient evidence indicating that the appellant was aware of the presence of marijuana where the evidence showed that a substantial amount of the marijuana was discovered in plain view in the bedroom occupied by the appellant and a witness testified that the appellant sold marijuana from the residence the night before the search). No evidence was presented connecting Allen to any room of the residence except the front bedroom, where no drugs were discovered. Though some of the blunts and residue were discovered in plain view, Allen was not present when the contraband was discovered. Compare with Lewis v. State, 741 So.2d 452 (Ala.Crim.App.1999)(evidence showing that a pistol was lying on the seat in an automobile, in plain view, within three inches of the appellant’s leg was sufficient to allow the jury to infer that the appellant had knowledge of, and was in constructive possession of, the pistol).

In White v. State, 611 So.2d 439 (Ala.Crim.App.1992), the police, after receiving information that the appellant was selling drugs from his blind half brother’s apartment, obtained a search warrant and executed the warrant. White, his wife, and the half brother were present when the police executed the warrant, and White’s wife told one of the officers that she and White had been staying at the apartment for some time. The police found marijuana in the half brother’s bedroom and in a toolbox in a closet. They also found 62 tablets of dihydrocodeinone in the kitchen. White admitted that a tape measure and a tool pouch found in the toolbox were his. This Court held that none of the State’s circumstantial evidence gave rise to any finding that White was aware that the contraband was present.

In R.W. v. State, 808 So.2d 1228 (Ala.Crim.App.2001), this Court unanimously held that the evidence was insufficient to establish constructive possession of the contraband. In R.W., the controlled substances were found in a box in an upstairs bathroom, along with several other prescription or controlled narcotics. Testimony showed that the upstairs portion of the house consisted of R.W.’s bedroom, a sitting area, another small room containing a bed, and the bathroom where the controlled substance and other narcotics were found. One of the drugs was commonly used to enhance muscle mass, and weightlifting equipment was found in R.W.’s bedroom. R.W.’s bedroom was connected to the bathroom by a door. R.W.’s father occupied the downstairs portion of the residence, where other controlled substances were discovered. This Court held that the fact that R.W. lived at the residence and had access to the controlled substance was insufficient to prove that R.W. was in constructive possession of the controlled substances. Specifically, this Court noted that there was no evidence that tended to exclude other possible possessors. This Court also noted that, although R.W. was present when the search warrant was executed, there was no evidence indicating that any of his possessions were found in the bathroom adjacent to his bedroom.

In Goodloe v. State, 783 So.2d 931 (Ala.Crim.App.2000), Goodloe and five other adults were present when the police executed a search warrant. Marijuana was found in a suitcase in a storage room or guest bedroom. Cocaine, drug paraphernalia, and more marijuana was found in the den, but one of the other individuals present admitted ownership of those drugs and paraphernalia. This Court held that the evidence did not tend to connect Good-loe to the controlled substances found in the suitcase. Specifically, the evidence did not exclude the five other individuals present as possible possessors, and no evidence connected Goodloe to the room where the suitcase full-of marijuana was found.

In Meeker v. State, 801 So.2d 850 (Ala.Crim.App.2001), marijuana was discovered on a TV stand in a spare bedroom of a house owned by Meeker’s brother. The police observed the residence on two occasions, and observed Meeker on the front porch once, and saw him enter the residence on the other occasion, presumably to spend the night based on the officers’ observations. When the police executed the warrant, Meeker was not present, but the police found his driver’s license on the TV stand in the guest bedroom where the marijuana was found. This Court, with Judge Shaw and Judge Wise dissenting, found that the evidence was insufficient to support Meeker’s conviction for possession of marijuana.

Here, none of the State’s witnesses testified as to when the appearance bonds were actually brought into the residence or by whom. There was no testimony that Allen owned or had ever been in possession of a .45-caliber gun, no testimony that the men’s clothing discovered in either bedroom belonged to Allen, and no testimony that Allen knew the marijuana was present or that he exerted or intended to exert control over the marijuana. Officer Co-field testified that he had no knowledge who smoked the blunts; Officer • Melton testified that he never saw Allen with the blunts, that he had no knowledge of who had smoked the blunts, and that he did not know if Allen knew the blunts were in the residence; Officer Maye testified that he had no knowledge of who had smoked the blunts; and Officer Bailey testified that he never saw Allen with the blunts,.-that he had no knowledge that Allen brought the blunts into the residence, or that Allen even knew the blunts were in the residence. •

Additionally, the presence of items belonging to John Walker tended to demonstrate that control of the residencé by Allen, if he had any control, was not exclusive. There was no- evidence presented that tended to exclude all other possible possessors. To the contrary, as the majority cites in its unpublished memorandum, one of the officers testified that “there had been a good bit of traffic into this residence.” (R. 66.)

Looking at the nonexclusive list of circumstances that may establish a connection between the defendant and the contraband, as discussed in Posey v. State, 736 So .2d 656, 658-59 (Ala.Crim.App.1997) (quoting Temple v. State, 366 So.2d 740 (Ala.Crim.App.1978)), the evidence here: 1) did not exclude all other possible possessors but rather established that there was a significant number of other possible possessors; 2) clearly did not show actual possession; 3) did not establish that Alien had substantial control over, or that he had ever' even been in, the areas where the blunts were found; 4) did not show admissions by Allen that established any connection to the blunts or showed any consciousness of guilt; 5) did not show any marijuana debris on Allen’s person or with his personal effects; and 6) did not show that Allen had used marijuana shortly before or at the time of his arrest. The fact that Allen had a previous conviction for second-degree possession of marijuana is certainly relevant. However, without some other link between Allen and the marijuana-filled blunts found in the back rooms of the residence, that fact alone is insufficient to connect Allen to the marijuana.

In this case,- the prosecution simply failéd to introduce any evidence or testimony that tended to link Allen to the marijuana-filled blunts found in the residence. At best, all that the evidence did tend to establish was 1) that Allen was seen outside of the residence, believed to be selling crack cocaine; 2) that numerous people, but not Allen himself, were seen entering the residence; 3) that at some point after the issuance of the appearance bonds on October 20, 2000, but before the execution of the search warrant on December 4, 2000, either Allen, or someone other than Allen, placed the appearance bonds in the front bedroom of the residence, at the other end of the house from where the blunts were discovered; and 4) that at some unknown point in time before the execution of the search warrant, the blunts were brought into the residence by a person unseen by, and unknown to, the police. Even assuming that Allen did live in and enjoy nonexclusive control of the residence, there is no evidence indicating that he was aware of the presence of the marijuana, and no evidence tending to exclude Walker, or any of the numerous other people that made up the “great deal of traffic into this residence” (R. 66.), as possible possessors of the contraband.

Though I have a strong disdain for the unlawful use or sale of illegal drugs or controlled substances, the prosecution still must meet certain burdens of proof, burdens of proof that simply were not met in this case. Because the evidence did not tend to establish that Allen possessed or intended to possess the marijuana, that he knew the marijuana was present, or that the marijuana was in fact present when, if ever, Allen was actually present inside of the residence, nor did the evidence tend to exclude other possible possessors, the prosecution failed to establish that Allen constructively possessed the marijuana.

Therefore, I dissent.


author: LYONS, Justice. JOHNSTONE, Justice

text:
    Ex parte Alfred ALLEN. (In re Alfred Allen v. State of Alabama).
    1012141.
    Supreme Court of Alabama.
    Nov. 1, 2002.
    Gregory M. Varner, Ashland, for petitioner.
    Submitted on petitioner’s brief only.
   LYONS, Justice.

WRIT DENIED.

MOORE, C.J., and HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

While this petition for a writ of certiora-ri does not comply with Rule 39, Ala. R.App. P., Judge Cobb’s detailed dissent from the decision of the Court of Criminal Appeals, Allen v. State, 850 So.2d 375 (Ala.Crim.App.2002) (Cobb, J., dissenting), supplies us with all of the facts and law necessary to a probably meritorious showing that the Court of Criminal Appeals has disregarded the caselaw requirements for constructive possession. Therefore, I would grant the petition to review the record on this issue.


author: COBB, Judge.

text:
    Dontel Oneal SYKES v. STATE of Alabama.
    CR-01-0711.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.

      Kevin Denver Teague, Decatur, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil' G. Brendle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

On October 19, 1998, Dontel Oneal Sykes pleaded guilty to second-degree robbery. The circuit court sentenced him to serve 15 years in prison, but suspended the sentence and ordered that Sykes be placed on supervised probation for 5 years. After a hearing on December 18, 2001, the circuit court revoked Sykes’s probation. This appeal followed.

On appeal, Sykes argues 1) that the circuit court’s order revoking his probation is inadequate because it does not specifically identify the evidence the court relied on in revoking Sykes’s probation; 2) that the circuit court’s order revoking his probation is inadequate because it does not contain any findings that “no measure short of confinement would adequately protect the community” (Appellant’s brief on appeal, p. 4); 3) that the circuit court erroneously revoked his probation “on the grounds [that he had committed] a ‘new offense’ without sufficient or credible evidence” (Appellant’s brief on appeal, p. 4); 4) that the revocation was in error because “the underlying case supporting the revocation was dismissed” (Appellant’s brief on appeal, p. 4); and 5) and that the revocation was not supported by the evidence presented during the hearing.

“The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ Puckett, 680 So.2d at 983.”

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erroneously failed to advise him of his right to request counsel during probation revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

Sykes’s arguments 3, 4, and 5 were not presented to the circuit court; therefore, Sykes has not preserved them for appellate review.

As for Sykes’s argument 2—that the revocation order is inadequate because it fails to indicate that no measure short of confinement is appropriate—a revocation order that states “the evidence relied upon and the reasons for revoking probation” is sufficient. Rule 27.6(f), Ala. R.Crim. P. See also Trice v. State, 707 So.2d 294 (Ala.Crim.App.1997). The fact that the order does not address whether confinement is the best option upon revocation of probation does not defeat an otherwise sufficient order. Therefore, this claim is without merit.

However, Sykes’s claim that the circuit court’s order does not sufficiently state what evidence it relied on to revoke his probation has merit. The circuit court made the following findings in its revocation order:

“This case is before the Court for a final probation revocation hearing. The State is represented by Assistant District Attorney Patrick Lamb, and the Defendant appears with his attorney. Testimony and other evidence is presented and considered by the Court.
“The Court is reasonably satisfied that on April 20, 2001, while on probation in the above-numbered case, the Defendant intervened in a fight between his brother and another person by the name of Laurence Ford. The Defendant in the course of allegedly breaking up the fight used more force and violence against Laurence Ford than was reasonably necessary to assist with his brother’s defense. The force and violence inflicted by the Defendant caused physical injuries to Laurence Ford. When he appeared in the Decatur Municipal Court to defend against the charge of assault in the third degree arising from this incident, the Defendant was found guilty after a trial.”

(R. 15.) (Emphasis added.)

“This court has consistently held that general recitations by the trial court that it considered the ‘testimony and arguments of counsel,’ ‘testimony of the defendant,’ ‘sworn testimony,’ ‘testimony in open court,’ are insufficient to satisfy the due process requirements of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975) ].”

McIntosh v. State, 762 So.2d 388, 390-91 (Ala.Crim.App.1999) (citing James v. State, 729 So.2d 364 (Ala.Crim.App.1998); Rutledge v. State, 689 So.2d 1002 (Aa.Crim.App.1996); Rivers v. State, 689 So.2d 990 (Ala.Crim.App.1996); and Jones v. State, 671 So.2d 770 (Ala.Crim.App.1995)). Because the circuit court’s order states only that it relied on “[tjestimony and other evidence ... presented and considered by the Court,” the order is insufficient, and we must remand this cause so that the circuit court can specify the evidence, if any, on which it relied to revoke Sykes’s probation. Due return shall be made to this Court within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and WISE, J., concur. SHAW, J., concurs in the result, without opinion. BASCHAB, J., dissents, without opinion.

      . Sykes attaches several postjudgment motions to his brief to this Court, none of which are in the record before us. Because they are not part of the record, we do not consider those postjudgment motions.

      . In Trice v. State, 707 So.2d 294, 299 (Ala.Crim.App.1997), this Court urged the Alabama Supreme Court “to modify its present requirement that a separate written order be entered when a transcript of the revocation hearing is available.” We again urge the Alabama Supreme Court to reconsider its holding in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).