author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    Ex parte SPRIGGS ENTERPRISES. (In re Spriggs Enterprises v. Jenell Fitkin).
    2011279.
    Court of Civil Appeals of Alabama.
    Jan. 10, 2003.
    Rehearing Denied March 7, 2003.
    Certiorari Quashed Oct. 3, 2003 Alabama Supreme Court 1021068.

      William H. Sisson and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitioner.
    James G. Curenton, Jr., Fairhope, for respondent.
   CRAWLEY, Judge.

Spriggs Enterprises (“the company”) petitions for a writ of mandamus directing the circuit court to vacate its order granting a motion filed by Jenell Fitkin (“the worker”), pursuant to Rule 60(b), Ala. R. Civ. P., for relief from a judgment dismissing her complaint for workers’ compensation benefits. We grant the petition.

On October 31, 2000, the worker sued the company, seeking workers’ compensation benefits. On December 4, 2000, the company answered and propounded to the worker interrogatories and requests for the production of documents. The worker’s attorney forwarded the interrogatories and the requests for production to the worker, who answered the interrogatories and returned her handwritten answers to her attorney. In February 2001, the company’s attorney received, in response to a subpoena, the worker’s medical records from Dr. William S. Fleet, the worker’s treating physician. In the packet of medical records from Dr. Fleet, the company’s attorney found the worker’s handwritten answers to the interrogatories. In a letter dated February 1, 2001, the company’s attorney wrote to the worker’s attorney:

“I received Dr. Fleet’s responses to my subpoena for his medical records regarding Ms. Fitkin. Interestingly, contained in his records, are my Interrogatories and Request for Production of Documents to Ms. Fitkin and some hand-written answers to those Discovery. Do you know why Dr. Fleet would have my Interrogatories of Ms. Fitkin and her answers to those interrogatories contained in his medical records?”

On February 14, the worker submitted to a deposition taken by the company’s attorney. In a letter dated February 21, the worker’s attorney replied to the company’s attorney:

“I am as surprised as you to find Ms. Fitkin’s handwritten responses to your interrogatories in Dr. Fleet’s notes. Does this mean we do not need to get her answers notarized?”

The company’s attorney did not respond to the last inquiry from the worker’s attorney. On October 31, 2001, the trial court set the case for trial on January 14, 2002. On November 16, the worker’s attorney filed a motion to withdraw as the worker’s attorney. The trial court granted that motion on November 19, stating, “[The worker] has 14 days to obtain new counsel, as case is set for trial on 1/14/02.”

On December 13, the company filed a motion to compel the worker to answer its interrogatories and requests for production. On December 21, the trial court granted the motion to compel. On January 4, 2002, the company filed a motion to dismiss the worker’s complaint, alleging that the worker “had failed and refused to answer [its] interrogatories and requests for production of documents.” The trial court granted the company’s motion and dismissed the case on January 9, 2002. Six and one-half months later, on July 22, 2002, the worker, who had obtained new counsel, filed a Rule 60(b) motion, seeking relief from the judgment dismissing her workers’ compensation action. After a hearing, the trial court granted the motion. The company petitioned this court for a writ of mandamus.

“ ‘[T]he decision whether to grant or deny [a Rule 60(b) ] motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined “that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979)(quoting Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).’
“Ex parte Dowling, 477 So.2d 400, 402 (Ala.1985).”

Osborn v. Roche, 813 So.2d 811, 815 (Ala.2001).

Rule 60(b) provides, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

The company argues that the worker’s motion to set aside the dismissal was actually seeking relief based upon either Rule 60(b)(1) or 60(b)(3) because it was based upon allegations of “mistake, inadvertence, or neglect,” or “fraud, misrepresentation, or other misconduct of an adverse party.” The company contends that the worker’s motion, filed six and one-half months after the judgment dismissing the worker’s complaint, was untimely and could not be made timely by styling it as a Rule 60(b)(6) motion. In R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994), our supreme court stated:

“The ‘catch all’ provision of clause (6) of Rule 60(b) allows a trial court to grant relief from a judgment for ‘any other reason justifying relief.’ Barnett v. Ivey, 559 So.2d 1082, 1084 (Ala.1990). ‘ “Relief under Rule 60(b)(6) is reserved for extraordinary circumstances, and is available only in cases of extreme hardship or injustice.” ’ Chambers County Comm’rs v. Walker, 459 So.2d 861, 866 (Ala.1984) (quoting Douglass v. Capital City Church of the Nazarene, 443 So.2d 917, 920 (Ala.1983)). Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5).... Because clause (6) operates exclusively of the specific grounds listed in clauses (1) through (5), this Court has stated that a party may not escape the four-month limitation applicable to clauses (1) through (3) merely by characterizing the motion as seeking relief under clause (6).” •

641 So.2d at 229.

Although grounds for relief under Rule 60(b)(1) generally cannot be used to provide relief under Rule 60(b)(6), our supreme court has recognized an exception when, in the interest of justice, “aggravating circumstances may allow a trial court to treat what would otherwise be a Rule 60(b)(1) motion as a Rule 60(b)(6) motion.” Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 284 (Ala.1998). See also R.E. Grills, Inc. v. Davison, supra; Ex parte Oden, 617 So.2d 1020 Ala.1992); Giles v. Giles, 404 So.2d 649 (Ala.1981).

In Giles, the court quoted the following from 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2864 (1973):

“ ‘A quite typical kind of case is that in which a party comes in more than a year [four months] after judgment to assert that he is the victim of some blunder by his counsel. Claims of this kind seem to fit readily enough within such grounds as mistake, inadvertence, and excusable neglect, all stated in clause (1) [of Rule 60(b)], and courts frequently have so reasoned and held that clause (6) was inapplicable. But if the court is persuaded that the interests of justice so require, it is likely to find aggravating circumstances sufficient to permit it to say that the case is properly within clause (6).’ ”

404 So.2d at 651. Our supreme court, however, has generally limited the “aggravating circumstances” exception to

“ ‘circumstances where the dismissal was the result of mistake, inadvertence, or neglect of counsel and where, despite all diligence exercised to protect his own interests, the client was unable to reasonably protect his interests because he was misled about the status or conduct of his case by his counsel.’

Ex parte Wal-Mart Stores, Inc., 725 So.2d at 284 (quoting R.E. Grills, Inc. v. Davison, 641 So.2d at 230) (emphasis added). See also R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751, 758 n. 3 (Ala.1998); Ex parte Oden, 617 So.2d at 1027. According to the court, the aggravating circumstances exception

“applies to an extraordinary circumstance not contemplated by Rule 60(b)(1), for the purpose of protecting the public, vindicating the judicial process, and promoting the public’s confidence in the legal system.”

R.E. Grills, Inc. v. Davison, 641 So.2d at 230; Ex parte Oden, 617 So.2d at 1027.

The worker’s Rule 60(b) motion did not allege mistake, inadvertence, or negleet by her attorney. It did not attribute the dismissal of her workers’ compensation complaint to a blunder by her own counsel. Instead, it attributed the dismissal of the complaint to a misrepresentation by the company’s counsel. The worker argues that aggravating circumstances are present because counsel for the company waited until her original attorney had withdrawn to inform the trial court that she had failed to respond to discovery. The worker’s Rule 60(b) motion alleged that counsel for the company misinformed the trial court that the worker “had failed and refused to respond to discovery” when, the worker claimed, the company’s counsel knew that the worker had answered its interrogatories and had submitted to a deposition. The flaw in that argument is that the worker also knew that she had answered the employer’s interrogatories and had submitted to a deposition. Therefore, the worker bore substantial responsibility for apprising the trial court that she had not failed and refused to respond to discovery. See Ex parte Wal-Mart Stores, Inc., 725 So.2d 279 (Ala.1998).

In Ex parte Wal-Mart Stores, the Alabama Supreme Court reversed a judgment of this court that had affirmed a trial court’s setting aside a worker’s compensation settlement on Rule 60(b)(6) grounds. After the judge who approved the settlement recused himself and assigned the Rule 60(b)(6) proceeding to another judge, the first judge testified, in a hearing on the Rule 60(b)(6) motion, that he would not have approved a worker’s compensation settlement if he had known (1) that the worker had a separate retaliatory-discharge action pending and (2) that the language of the settlement precluded the worker’s bringing the retaliatory-discharge action. The supreme court held that the first judge’s testimony “amount[ed] to a claim that he entered the judgment because he was under a mistaken impression as to the existence of certain facts, and perhaps also as to the legal effect of the settlement’s preclusive language.” 725 So.2d at 285. Rejecting the mistaken-impression-of-the-facts claim, the court held:

“[I]t appears that [the client] himself shoulders substantial responsibility for [the trial judge’s] lack of awareness. When he appeared before [the trial judge] to have the settlement approved, [the client] was obviously aware that he had filed a retaliatory-discharge claim and that he had retained counsel, yet he failed to notify [the trial judge] of these facts.”

725 So.2d at 285.

We conclude that the worker was not diligent about protecting her own interests. She was served with notice of the company’s motion to compel and motion, to dismiss, yet she responded to neither. Despite the fact that she was not represented by counsel when those motions were filed, the worker bore the responsibility for tracking the progress of her own action.

“[L]ack of counsel is not a valid grounds for setting aside a judgment under Rule 60(b). Porter v. Mobile Pulley & Machine Works, 507 So.2d 529, 530 (Ala.Civ.App.1987).... ‘A party remains under a duty to take the legal steps necessary to protect [her] own interests.’ McDaniel [v. McDaniel, 694 So.2d 34, 36 (Ala.Civ.App.1997) ].”

State ex rel. Croson v. Croson, 724 So.2d 36, 38 (Ala.Civ.App.1998). See also Ex parte Wal-Mart Stores, Inc., 725 So.2d at 285 n. 5; Briscoe v. Briscoe, 600 So.2d 290, 292 (Ala.Civ.App.1992).

The worker had not been misled by her own counsel of the status of her case. She knew, at the time the dismissal was entered, that she had answered the company’s interrogatories and that she had submitted to a deposition by the company. Nevertheless, she failed to bring those facts to the trial court’s attention by a postjudgment motion within 30 days of the order dismissing her complaint and she failed to appeal the order dismissing her complaint.

“ ‘[RJelief should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments.... Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.’ ”

Osborn v. Roche, 813 So.2d 811, 818 (Ala.2001) (quoting Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993)).

“Rule 60(b) requires that a motion for relief from a judgment based on fraud or misconduct of an adverse party be filed within four months of the judgment .... This was a delay of more than four months, and the delay made the motion untimely. We hold that the entry of the [Rule 60(b)] order was an abuse of discretion in that it granted relief on an untimely petition.”

Ex parte Third Generation, Inc., 820 So.2d 89, 91 (Ala.2001) (footnote omitted).

“Mandamus is an extraordinary writ and will issue only when (1) the petitioner has demonstrated a clear legal right to the relief sought; (2) the respondent has a duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) appellate jurisdiction is properly invoked. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000). Because mandamus is an extraordinary remedy, this court’s standard of review is simply to determine whether the trial court has clearly abused its discretion. Ex parte King, 776 So.2d 31 (Ala.2000).”

Ex parte Winn-Dixie Montgomery, Inc., [Ms. 2010765, October 25, 2002] (Ala.Civ.App.2002). The trial court’s grant of the worker’s motion for relief from the dismissal is not supported by any of the grounds listed in Rule 60(b). Therefore, we conclude that the trial court clearly abused its discretion by granting the worker’s Rule 60(b) motion. We, therefore, grant the company’s petition for the writ of mandamus and instruct the trial court to vacate its order granting the worker’s Rule 60(b) motion.

PETITION GRANTED; WRIT ISSUED.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

Because I believe that aggravating circumstances exist in this case to justify the trial court’s grant of Fitkin’s motion for relief from judgment, brought pursuant to Rule 60(b), Ala. R. Civ. P., I must respectfully dissent from the main opinion.

Spriggs Enterprises propounded interrogatories and requests for production of documents to Fitkin. Fitkin’s attorney forwarded the interrogatories and requests for production to Fitkin, who answered the interrogatories and then returned her handwritten answers to her attorney. Subsequently, Spriggs Enterprises’ attorney discovered the interrogatories and Fit-kin’s handwritten answers to those interrogatories in a packet of medical records received through discovery from Fitkin’s treating physician. On February 1, 2001, Spriggs Enterprises’ attorney wrote a letter to Fitkin’s attorney acknowledging his discovery of the handwritten answers to the interrogatories and inquiring why the interrogatories and handwritten answers would be in the medical records of Fitkin’s treating physician.

On February 14, 2001, Fitkin was deposed by Spriggs Enterprises. On February 21, 2001, Fitkin’s attorney responded to Spriggs Enterprises’ letter of February 1, stating that he was surprised that the interrogatories and handwritten answers were found in the medical records and inquiring whether the answers needed to be notarized. Spriggs Enterprises’ attorney did not respond to this letter.

On October 31, 2001, the trial court set the case for trial on January 14, 2002. On November 16, 2001, Fitkin’s attorney moved to withdraw as Fitkin’s counsel. The trial court granted the motion on November 19, 2001, and gave Fitkin 14 days to obtain new counsel. On December 13, 2001, Spriggs Enterprises moved to compel Fitkin to answer the interrogatories and request for production, stating that Fitkin had refused to answer those requests and that the answers were necessary in order for Spriggs Enterprises to prepare an adequate defense. In the motion, Spriggs Enterprises failed to inform the court that it had, through other means, received handwritten answers to the interrogatories and that it had taken Fitkin’s deposition. The trial court granted the motion to compel.

On January 4, 2002, Spriggs Enterprises moved the court to dismiss Fitkin’s workers’ compensation complaint, alleging that she “had failed and refused to answer [its] interrogatories and requests for production of documents.” The trial court, on January 9, 2002, granted Spriggs Enterprises’ motion to dismiss. Fitkin obtained new counsel and on July 22, 2002, moved the court pursuant to Rule 60(b), Ala. R. Civ. P., for relief from its judgment dismissing her complaint. The trial court granted Fitkin’s motion.

Our supreme court has stated:

“ ‘[T]he decision whether to grant or deny [a Rule 60(b) ] motion is within the sound discretion of the trial judge, and the appellate standard of review is whether the trial court abused its discretion. Pierson v. Pierson, 347 So.2d 985 (Ala.1977). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined “that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected, or that it is unjust.” Textron, Inc. v. Whitfield, 380 So.2d 259 (Ala.1979), quoting Nunn v. Stone, 356 So.2d 1212 (Ala.Civ.App.1978).’
“Ex parte Dowling, 477 So.2d 400, 402 (Ala.1985).”

Osborn v. Roche, 813 So.2d 811, 815 (Ala.2001). As the main opinion states, Spriggs Enterprises argues that Fitkin’s motion to set aside the dismissal of her complaint was actually seeking relief based upon either Rule 60(b)(1) or Rule 60(b)(3); that Fitkin’s motion was untimely because it was filed six and one-half months after her complaint was dismissed; and that the motion could not be made timely by styling it as a Rule 60(b)(6) motion. Generally, grounds for relief under Rule 60(b)(1) and 60(b)(3) cannot be used to provide relief under Rule 60(b)(6); however, our supreme court has recognized that in certain cases “aggravating-circumstances may allow a trial court to treat what would otherwise be a Rule 60(b)(1) motion [or 60(b)(3) motion] as a Rule 60(b)(6) motion.” Ex parte Wal-Mart Stores, Inc., 725 So.2d 279, 284 (Ala.1998). The supreme court has stated that the aggravating-circumstances exception “applies to an extraordinary circumstance not contemplated by Rule 60(b)(1) [or 60(b)(3)], for the purpose of protecting the public, vindicating the judicial process, and promoting the public’s confidence in the legal system.” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 230 (Ala.1994).

After reviewing the materials before the court on Spriggs Enterprises’ petition for a writ of mandamus, I conclude that the trial court could have inferred that Spriggs Enterprises had misled the court by representing in its motion to compel, and its motion to dismiss, that Fitkin had failed and refused to answer its interrogatories when, in fact, Fitkin had answered the interrogatories and Spriggs Enterprises had learned of this when it discovered the answers in Fitkin’s medical records. In my opinion, that would constitute an “aggravating circumstance” and would justify treating Fitkin’s motion as one brought pursuant to Rule 60(b)(6) and granting that motion. Accordingly, I dissent from the main opinion’s grant of the petition for a writ of mandamus.

      . Although the handwritten responses to the interrogatories were neither signed nor notarized, we will assume, for purposes of this opinion, that they constituted the worker’s answers to the interrogatories propounded by the company.

       Note from the reporter of decisions: On January 31, 2003, on application for rehearing, the Court of Civil Appeals withdrew its October 25, 2002, opinion and substituted a new one. The language quoted from the October 25, 2002, opinion appears in the January 31, 2003, opinion, with some minor modification.

      . The handwritten answers are clear, concise, and legible.


source: Caselaw Access Project

author: BASCHAB, Judge. SHAW, Judge,

license: Public Domain

text:
    Brian Heath HARRISON v. STATE of Alabama.
    CR-01-2335.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Rehearing Denied June 13, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021682.

      Dewayne M. Beesley, Monroeville, for appellant.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Brian Heath Harrison, was convicted of discharging a firearm into an unoccupied vehicle, a violation of § 13A-ll-61(a), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of twenty-five years in prison. See § 13A-5-9(b)(l), Ala.Code 1975. The appellant filed a “Motion for Judgment of Acquittal or in the Alternative, Motion for New Trial or Arrest of Judgment,” and the trial court conducted a hearing on the motion. However, the motion was subsequently denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

I.

The appellant argues that the trial court erroneously sentenced him as a habitual offender. Citing this court’s holding in Poole v. State, 846 So.2d 370 (Ala.Crim.App.2001), he contends that the State was required to give him notice of its intent to enhance his sentence pursuant to the Habitual Felony Offender Act at a reasonable time before his trial began. In Poole, we held that,

“[b]eeause Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)] mandates that any fact that increases the sentence be submitted to a jury, we believe that notice of intent to seek a sentencing enhancement should be given at a reasonable time before the start of the trial.”

Poole v. State, 846 So.2d 370, 388 (Ala.Crim.App.2001). However, we further noted that

“[t]he Apprendi Court specifically excluded from its holding proof of prior convictions necessary to invoke a habitual felony offender act. 530 U.S. at 490. See State v. Sanko, 62 Conn.App. 34, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001) (Apprendi does not apply to prior convictions and admissions).”

Poole, 846 So.2d at 375. Therefore, the pretrial notice provision set forth in Poole does not apply to the Habitual Felony Offender Act.

Moreover, Rule 26.6(b)(3)(h), Ala. R.Crim. P., simply requires that the State give a defendant notice of the prior conviction or convictions upon which it intends to rely at a reasonable time before the sentencing hearing. Therefore, the State was not required to give the appellant pretrial notice of its intent to enhance his sentence pursuant to the Habitual Felony Offender Act. Accordingly, the trial court properly sentenced the appellant as a habitual offender.

II.

The appellant also argues that the trial court erroneously denied his motion for a continuance. Specifically, he contends that the trial court should have granted the motion so he could employ a ballistics expert who allegedly would have supported his claim that the gun accidentally discharged.

“ ‘It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court and that, absent a showing of abuse of that discretion, the trial court’s decision on the matter will not be overturned on appeal. Arnold v. State, 601 So.2d 145 (Ala.Cr.App.1992); see generally cases cited at 14 Ala. Digest 2d § 586.
“ ‘To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Material evidence means “[ejvidence which has an effective influence or bearing on questions in issue.” Black’s Law Dictionary 976 (6th ed.1990). “Simply put, a ‘material’ fact is one that would matter in the trial on the merits.” Sumner v. Sumner, 664 So.2d 718, 723 (La.App.1995). It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App.1982). In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).
“ ‘The appellant made no showing as to what the witness’s testimony would be if he were present and testified. The refusal to grant a continuance because a witness will be absent is not error if there is no showing of what the witness would testify to. Smith v. State, 368 So.2d 298 (Ala.Cr.App.1978), writ quashed, 368 So.2d 305 (Ala.1979); Castona v. State, 17 Ala.App. 421, 84 So. 871 (1920). Thus, the appellant failed to establish that the expected testimony would be material and competent, that it would be substantially favorable to him, that it would not be merely cumulative or in the nature of impeachment, or that the denial of the continuance would be prejudicial to him.’
“Smith v. State, 698 So.2d 189, 205 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S.Ct. 385, 139 L.Ed.2d 300 (1997) (emphasis added).”

Woodson v. State, 794 So.2d 1226, 1228 (Ala.Crim.App.2000).

In his motion for a continuance, the appellant alleged only that he “intend[ed] to employ a ballistics expert to testify in this case.” (C.R. 19.) However, he did not make any showing as to what evidence the ballistics expert would present or that such evidence would be material to his case. Also, he did not show that he had exercised due diligence to obtain a ballistics expert. Therefore, the trial court properly denied the appellant’s motion for a continuance.

III.

The appellant further argues that “the indictment does not state a required element of mental culpability.” (Appellant’s brief at p. 9.) The indictment alleged that the appellant

“did, unlawfully shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile, to-wit: a rifle, into an unoccupied dwelling, building, railroad locomotive, railroad car, aircraft, automobile, truck or watercraft, to-wit: an unoccupied vehicle, in violation of Section 13A-11-61 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R. 1.) In Sullens v. State, 878 So.2d 1216, 1220-28 (Ala.Crim.App.2003), we addressed a similar contention as follows:

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

“ ‘(a) No person shall shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile into any occupied or unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state.
“ ‘(b) Any person who commits an act prohibited by subsection (a) with respect to an occupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class B felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.
“ ‘(c) Any person who commits any act prohibited by subsection (a) hereof with respect to an unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft shall be deemed guilty of a Class C felony as defined by the state criminal code, and upon conviction, shall be punished as prescribed by law.’
“The indictments track the language of § 13A-ll-61(a), Ala.Code 1975. However, that statute does not include a specific culpable mental state. Therefore, we must determine whether a violation of § 13A-11-61, Ala.Code 1975, is a strict liability offense.
“Section 13A-2-4(b), Ala.Code 1975, provides:
“ ‘Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.’
“(Emphasis added.) The Commentary to § 13A-2-4, Ala.Code 1975, states:
“ ‘Subsection (b) explicitly states a policy adverse to arbitrary use of “strict liability” concepts. An express statement is required in the statute defining the offense if strict liability is being imposed.’
“(Emphasis added.) Although § 13A-11-61, Ala.Code 1975, does not describe a culpable mental state, it also does not expressly state that discharging a firearm into an occupied vehicle is a strict liability offense. Furthermore, § 13A-11-61, Ala.Code 1975, was enacted in 1984, and we presume that the Legislature was aware of § 13A-2-4, Ala.Code 1975, and chose not to make the offense a strict liability offense. See Ex parte Phillips, 771 So.2d 1066 (Ala.2000). Therefore, we conclude that discharging a firearm into an occupied vehicle is not a strict liability offense.
“We must next attempt to ascertain what mental state is required to commit the offense of discharging a firearm into an occupied vehicle. In this regard, § 13A-2-2, Ala.Code 1975, provides:
“ ‘The following definitions apply to this Criminal Code:
“ ‘(1) Intentionally. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.
“ ‘(2) Knowingly. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.
“ ‘(3) Recklessly. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates a risk but is unaware thereof solely by reason of voluntary intoxication, as defined in subdivision (e)(2) of Section 13A-3-2, acts recklessly with respect thereto.
“ ‘(4) Criminal negligence. A person acts with criminal negligence with respect to a result or to a circumstance which is defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. A court or jury may consider statutes or ordinances regulating the defendant’s conduct as bearing upon the question of criminal negligence.’

“In Ex parte Edwards, 816 So.2d 98 (Ala.2001), the Alabama Supreme Court faced the task of determining what mental state is required to commit the offense of vehicular homicide, as set forth in § 32-5A-192, Ala.Code 1975. Section 32-5A-192(a), Ala.Code 1975, provides, in pertinent part:

“ Whoever shall unlawfully and unintentionally cause the death of another person while engaged in the violation of any state law or municipal ordinance applying to the operation or use of a vehicle, or vessel, as defined in Section 33-5-3, or to the regulation of traffic or boating, shall be guilty of homicide when the violation is the proximate cause of the death.’

“(Emphasis added.) The supreme court determined the following:

“ We conclude that the trial court’s initial reservations about tying the requisite mental state to the word “unlawfully” were sound. We endorse the “Use Note on Mens Rea Element” that accompanies the Alabama pattern jury instruction applicable to § 32-5A-192; that note states that “unintentional” is not defined in the Code but that the committee drafting the instruction assumes that word to refer to all forms of mens rea except that described by the word “intentional.” The Use Note then refers to the previously referenced defined terms governing mens rea elements — “intentionally,” “knowingly,” “recklessly,” and “criminal negligence.” Then, the Use Note correctly concludes:
“ ‘ “The judge should insert the appropriate mens rea element considering the indictment and the evidence before the court. ‘There are few, if any, strict liability offenses in this Criminal Code.... ’ Ala.Code § 13A-2-3 Commentary. See also § 13A-2^(b).”
‘Alabama Pattern Jury Instructions: Criminal, 14-4 to 14-6 (3d ed.1994).

“Edwards, 816 So.2d at 107.

“Unlike the vehicular homicide statute, § 13A-11-61, Ala.Code 1975, does not expressly exclude intentional conduct. In fact, it does not exclude any of the states of mental culpability set forth in § 13A-2-2, Ala.Code 1975. As did the Alabama Supreme Court in Edwards, we interpret the fact that the statute does not specifically exclude any states of mental culpability to be an indication of the Legislature’s intent to include any of the states of mental culpability set forth in § 13A-2-2, Ala.Code 1975. Therefore, we conclude that the offense of discharging a firearm into an occupied vehicle can be committed intentionally, knowingly, recklessly, or with criminal negligence.

“Finally, we must determine whether the trial court erred when it denied the appellants’ motions to dismiss the indictments based on the fact that they did not allege a culpable mental state. For the reasons set forth below, we conclude that it did not.

“In Duncan v. State, 624 So.2d 1084, 1087-88 (Ala.Crim.App.1993), we addressed a similar issue as follows:

“ ‘The appellant maintains that the indictment failed to charge an offense because it did not sufficiently inform her of what she was called upon to defend. The indictment in this case charged that the appellant,
“ ‘ “a parent, guardian or other person legally charged with the care or custody of Kassie Larene Duncan, a child less than eighteen (18) years of age, did fail to exercise reasonable diligence in the control of Kassie Larene Duncan so as to prevent Kassie Larene Duncan from becoming a dependent, as defined [in] Section 12-15-1 of the Code of Alabama, by such conduct more particularly described as knowingly leaving said child in an abusive environment ... in violation of Section 13A-13-6 of the Code of Alabama.’ ” CR. 1-2.
“ ‘Section 13A-13-6 provides, in pertinent part:
“ ‘ “(a) [A] man or woman commits the crime of endangering the welfare of a child when:
“ ‘ “(2) [H]e or she, as a parent ... of a child less than 18 years of age, fails to exercise reasonable diligence in the control of such child to prevent him or her from becoming a ‘dependent child’ ... as defined in section 12-15-1.”
“ ‘Section 12-15-1(10) provides that a “dependent child” is one
“ ‘ “a. Who, for any reason, is destitute, homeless or dependent on the public for support; or
“ ‘ “b. Who is without a parent or guardian able to provide for his support, training or education; or
“ ‘ “c. Whose custody is the subject of controversy; or
“ ‘ “d. Whose home, by reason of neglect, cruelty or depravity on the part of his parent, parents, guardian or other person in whose care he may be, is an unfit and improper place for him; or
“ ‘ “e. Whose parent, parents, guardian or other custodian neglects or refuses, when able to do so or when such service is offered without charge, to provide or allow medical, surgical or other care necessary for such child’s health or well-being; or
“ ‘ “f. Who is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger his morals, health or general welfare; or
“ ‘ “g. Who has no proper parental care or guardianship; or
“ ‘ “h. Wfiiose parent, parents, guardian or custodian fails, refuse[s] or neglect[s] to send such child to school in accordance with the terms of the compulsory school attendance laws of this state; or
“ ‘ “i. Who has been abandoned by his parents, guardian or other custodian; or
“ ‘ “j. Wfiio is physically, mentally or emotionally abused by his parents, guardian or other custodian or who is without proper parental care and control necessary for his well-being because of the faults or habits of his parents, guardian or other custodian or their neglect or refusal, when able to do so, to provide them; or
“ ‘ “k. Whose parents, guardian or other custodian are unable to discharge their responsibilities to and for the child; or
“ ‘ “l. Who has been placed for care or adoption in violation of the law; or
“ ‘ “m. Who for any other cause is in need of the care and protection of the state; and
“ ‘ “n. In any of the foregoing, is in need of care or supervision.”
“ ‘The appellant claims that the indictment was defective because the allegation that she failed to prevent her child from becoming a dependent, “by such conduct more particularly described as knowingly leaving said child in an abusive environment ” did not specifically track any of the fourteen alternatives found in subsections (a) through (n) of § 12-15-1(10), defining a “dependent child.”
“ ‘The appellant is correct that the phrase “knowingly leaving said child in an abusive environment” is not in verbatim correspondence with any one of the fourteen alternatives of § 12-15-1(10). Instead, the phrase appears to fit several of the statutory subsections, especially parts (d), (f), and (j).
“ ‘The indictment, however, need not have specified which of the § 12-15-1 subsections was applicable in order to have charged an offense. Generally, it is “sufficient to charge the elements of the statutory offense in the words of the statute [here, § 13A-13-6], provided the statute prescribe[s] with definiteness the constituent elements of the offense.” Ex parte Harper, 594 So.2d 1181, 1183 (Ala.1991). The allegation that the appellant “fail[ed] to exercise reasonable diligence in the control of Kassie Larene Duncan so as to prevent Kas-sie Larene Duncan from becoming a dependent, as defined [in] Section 12-15-1 of the Code of Alabama,” tracked the language of § 13A-13-6, and was itself legally sufficient.
“ ‘The fact that the indictment did not specify which of the § 12-15-1 alternatives was applicable did not render it fatally defective. An indictment that tracks the language of a statute that incorporates a word or phrase “defined by law” in another statute need not further clarify the incorporated word or phrase. See Inmon v. State, 585 So.2d 261, 263 (Ala.Cr.App.1991). This indictment stated an offense without alleging which of the § 12-15-1 subsections was applicable, and the appellant’s motion to dismiss the indictment was correctly denied.
“ While the appellant would have been, on timely motion, entitled to a more definite statement of the charge against her, she made no such motion “prior to the entry of her plea.” See Rule 13.2(e), A.R.Crim. P. Compare Ex parte Harper, 594 So.2d at 1183 n. 2 (wherein the Alabama Supreme Court observed that “Rule 13.2(e), A.R.Crim. P., provided th[e] defendant, had he requested it before joining issue on the indictment, the right to move for a more definite statement of the charge. Had such a procedure been available in Gayden [v. State, 262 Ala. 468, 80 So.2d 501 (1955) (‘a leading case on the sufficiency of an indictment’)], it appears that the result reached there would have been different”).
“ ‘The appellant in fact received a more definite statement of the charge when the trial court instructed the jury that it should measure the appellant’s conduct against the definition of “dependent child” contained in Ala. Code 1975, § 12 — 15—l(10)(f): a child “[w]ho is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger his morals, health or general welfare.” R. 428. The appellant entered no objection to this portion of the court’s charge. Because subsection (f) conforms to the evidence in this case, and because there is absolutely no indication that the appellant was misled in making her defense to the indictment charging that she “knowingly le[ft her] child in an abusive environment,” we find that, even if any error had been preserved, it would have been harmless.’
“Subsequently, in Hunt v. State, 642 So.2d 999, 1022-26 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994), this court again addressed a similar issue as follows:
“ ‘Hunt maintains that the trial court committed reversible error in failing to sustain his motion to dismiss the indictment. This issue is preserved for our review. In a supplement to his pretrial motion to dismiss, Hunt alleged that the indictment was “insufficient to charge a criminal offense in that it fails to allege that Hunt knowingly or willfully violated § 36-25-5, Ala.Code (1975), as required by § 36-25-27, Ala.Code (1975).” C.R. 485-486. In addition, Hunt filed a motion for more definite statement pursuant to Rule 13.2(e), A.R. Cr. P. in which this issue was presented. C.R. 477, 481. In response to this motion, the Attorney General filed a lengthy written response with extensive exhibits. C.R. 543-586.
“ ‘Appellate courts review the legal sufficiency of indictments de novo. United States v. Schmidt, 947 F.2d 362, 369 (9th Cir.1991).
“ ‘ “The Federal Rides of Criminal Procedure require that an indictment be a ‘plain, concise, and definite written statement of the essential facts constituting the offense charged.’ An indictment need only contain those facts and elements of the alleged offense necessary to inform the accused of the charge so that she may prepare a defense and invoke the Double Jeopardy Clause when appropriate. Courts will normally find an indictment insufficient only if it fails to state a material element of the offense.
“ ‘ “In determining whether an indictment sufficiently informs the defendant of the offense, courts give the indictment a common sense construction and generally will uphold an indictment even if it contains a technical error or omission. Validity of the indictment turns on whether it conforms to minimum constitutional standards, not whether the indictment could be framed more satisfactorily. Although an indictment that tracks the statutory language defining an offense is usually sufficient, reliance on statutory language alone will not cure a fatal defect in an indictment.
“ ‘ “.... The availability of a bill of particulars will not cure an indictment that omits an essential element of the offense.”
“ ‘Daniel F. Mclnnis et al., Project, Twenty-Second Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1991-1992, 81 Geo. L.J. 853, 1076-1081 (1993) (footnotes omitted).
“ ‘The indictment charged in pertinent part that Hunt
“ ‘ “while a public official or employee, to wit: the Governor of the State of Alabama, did use an official position or office, to wit: the Office of the Governor of the State of Alabama, to obtain direct personal financial gain, to wit: two hundred thousand dollars ($200,000) in lawful currency and/or coinage of the United States of America and/or checks, a better description of which is unknown to the Grand Jury, for himself or his family or any business with which he or a member of his family is associated, said use and gain not being specifically authorized by law in violation of Section 36-25-5 of the Code of Alabama, against the peace and dignity of the State of Alabama.” C.R. 26.
“ ‘The statute under which Hunt was indicted, Ala.Code 1975, § 36-25-5(a), provides:
“ ‘ “No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law.”
“ ‘Here, the indictment parroted the language of § 36-25-5(a). However, the penalty for this conduct is prescribed by § 36-25-27(a)(l) which requires that the conduct be “knowingly or willfully” committed. Section 36-25-27(a)(l) provides:
“ ‘ “Any person subject to this chapter who knowingly or willfully violates any provisions of this chapter other than the requirements of financial and lobbying disclosure shall be found guilty of a felony and shall be fined not more than $10,000.00 or less than $2,001.00, or shall be imprisoned for not more than 10 years but not less than two years or any combination thereof.” (Emphasis added).
“ ‘It is undisputed, both at trial and on appeal, that “knowingly or willfully” is an element of the offense defined in § 36-25-5(a).
“ ‘In [Ex parte] Harper, [594 So.2d 1181 (Ala.1991)], the Alabama Supreme Court held that an indictment alleging that the defendant “unlawfully” distributed a controlled substance was not void for failing to allege that the distribution was “knowingly” done. The Court recognized that knowledge was an element of the offense which should have been alleged in the indictment, but it held that the defendant had failed to raise a timely objection to that omission from the charge. The Court decided that “[ejven if [the defendant] had a valid objection to the statement of the charge, and we find that he did not have a valid objection in this ease, he failed to raise an objection timely.” Harper, 594 So.2d at 1194 (emphasis added).
“ ‘The court apparently had two reasons for determining that the defendant “did not have a valid objection” to the Harper indictment, despite the omission of the knowledge allegation. First, the court found it “important,” 594 So.2d at 1182, that “the procedure for preferring an indictment was governed by the provisions of Temporary Rule 15.2 [now Rule 13.2, A.R. Cr. P.].” Under that rule, “[t]he indictment or information shall be a plain, concise statement of the facts in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce proper judgment.”
“ 1 “The general rule in Alabama, even before the adoption of Temporary Rule 15 (now Rule 13), was that it was sufficient to charge the elements of the statutory offense in the words of the statute, provided the statute prescribed with definiteness the constituent elements of the offense. Ex parte Allred, 393 So.2d 1030 (Ala.1980); see, also, eases collected at 12 Ala. Dig., Indictment and Information, Key No. 110(3). The crucial question, of course, is whether the indictment sufficiently apprises the accused with reasonable certainty of the nature of the accusation made against him so that he may prepare his defense, that he may be protected against a subsequent prosecution for the same offense. See Hochman v. State, 265 Ala. 1, 91 So.2d 500 (1956), in which the Court distinguished Gayden v. State, 262 Ala. 468, 80 So.2d 501 (1955), a leading case on the sufficiency of an indictment, in which a divided Court held that two counts of an indictment against Gayden were defective and subject- to a demurrer.”

‘Harper, 594 So.2d at 1183. The Court further noted that it “has liberalized criminal pleading and has provided a method for defendants to obtain a more definite statement of the charges [pursuant to Rule 13.2, A.R. Cr. P.].” Harper, 594 So.2d at 1183.

“ ‘Second, the court found that Temporary Rule 15.5(c)(2) [now Rule 13.5(c)(2)] provides for a “harmless error” review of a defective charging instrument.

“ ‘ “The Court of Criminal Appeals correctly held, in Stewart [v. State, 580 So.2d 27 (Ala.Cr.App.1990)], that if a statute requires that the offense be ‘knowingly’ committed, then the indictment should allege that- it was so committed, and if an objection to the indictment is raised by the trial court or the defendant ‘during the pendency of the proceeding,’ the indictment is defective and would be subject to dismissal, unless otherwise provided for in Temporary Rule 15.5(c)(2) (now Rule 13.5(c)(2)), which states, in part, that ‘[n]o charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in' any manner affected, for any .defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits.’
■ “ ‘ “_Even if he had a valid objection to the statement of the charge, and we find that he did not have a valid objection in this case, he failed to raise an objection timely-
“ ‘ “Based on the foregoing, we are clear to the conclusion that the defendant’s constitutional right ‘to demand the nature and cause of the accusation’ (Art. 1, § 6, Const, of Ala.1901) has been fulfilled in this case. The indictment is not void for failing to allege that the offense was committed ‘knowingly.’
“ ‘ “This opinion should not be construed, however, as stating that the State may not be required to prove that the defendant knew of the presence of a controlled substance, .... [Kjnowledge must be proved in order to establish that an offense was committed.
“ - “Based on the above, we hold that the indictment was not void for its failure to allege that the distribution of the controlled substance was ‘knowingly’ done. We further hold that the petitioner’s objection was untimely,- because it was not made ‘during the pendency of the proceeding.’ ” (Emphasis added).
‘Harper, 594 So.2d at 1194-95.
“ ‘From the above discussion we draw the following conclusions: 1) Knowledge or willfulness is an element of the offense defined in Ala. Code 1975, § 36-25-5. 2) Under Davis [v. State, 68 Ala. 58 (1880)] supra, knowledge or willfulness should have been alleged in the indictment. 3) After the adoption of Rule 13, A.R. Cr. P. and the opinion of the Alabama Supreme Court in Harper, the failure to allege criminal intent in an indictment does not necessarily render an indictment void and in some cases does not even render it objectionable even in those cases where criminal knowledge is necessary for the proof of the crime charged.
“ ‘Frankly, Harper raises many more questions than it answers. However, this Court is bound by the decisions of the Alabama Supreme Court. Ala.Code 1975, § 12-3-16.
“ ‘We conclude that Ex parte Harper ... controls the result in this case. Hunt was given a more definite statement of the charges against him, and the State presented evidence from which the factfinder could infer that Hunt committed the offense knowingly ■ and wilfully. Therefore, any imperfection in the indictment did not “tend to prejudice [Hunt’s] substantial rights upon the merits.” Rule 13.5(c)(2), A.R. Cr. P.’

“Finally, in Ex parte Edwards, 816 So.2d 98, 109 (Ala.2001), the Alabama Supreme Court, addressing a conviction under the vehicular homicide statute, stated: ‘Edwards’s indictment did not describe a necessary culpable mental state, and the court refused her request for an instruction on a culpable mental state.’ As the appellants concede, ‘Edwards stands for the proposition that the trial court could have cured the indictment in its instructions to the jury.’ (Appellants’ brief at p. 26.)

“The indictments in this case substantially followed the language of § 13A-ll-61(a), Ala.Code 1975. In light of Alabama’s liberalized rules of pleading, we conclude that the indictments sufficiently apprised the appellants of the nature of the charges against them so that they could prepare their defenses. Also, the appellants could have requested more definite statements of the charges against them, as did the appellant in Hunt. See also Duncan. Further, as in Duncan, the appellants received more definite statements when the trial court instructed the jury that it must determine whether the appellants acted ‘without lawful justification.’ (R. 492, 502.) Finally, the record does not indicate that the appellants were misled in preparing their defenses to the indictments. In fact, from the record, it appears that they thoroughly prepared and presented their defenses — defense of others and self-defense — to the charges. Therefore, we conclude that any imperfection in the indictments did not tend to prejudice the substantial rights of the appellants on the merits.

(Footnote omitted.)

Similarly, because the indictment in this case substantially followed the language of § 13A-ll-61(a), Ala.Code 1975, we conclude that it sufficiently apprised the appellant of the charge against him so he could prepare a defense. Also, the appellant could have requested a more definite statement of the charge against him. See Hunt; Duncan. Finally, the record does not indicate that the appellant was misled in preparing his defense. In fact, it appears from the record that the appellant thoroughly prepared and presented his defense — i.e., that the shooting was accidental. Therefore, we conclude that any imperfection in the indictment did not tend to prejudice the substantial rights of the appellant on the merits.

IV.

The appellant additionally argues that the trial court erroneously granted the State’s Batson motion as to venire-members 8 and 9 because he allegedly gave valid race- and gender-neutral reasons for those strikes.

“When the trial court has required a party to state reasons for the strikes, that party must articulate reasons that are clear, specific, and legitimate, that relate to the particular case, and that are nondiscriminatory. Ex parte Bird, 594 So.2d 676, 679 (Ala.1991); Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992); Adkins v. State, 639 So.2d 515 (Ala.Crim.App.1993), aff'd, 639 So.2d 522 (Ala.), cert. denied, 513 U.S. 851, 115 S.Ct. 151, 130 L.Ed.2d 90 (1994). After race-neutral reasons have been articulated, the moving party can offer evidence showing that those reasons are really a sham or pretext. Ex parte Branch, 526 So.2d at 625. On appeal, the trial court’s ruling on the question whether the responding party offered legitimate race-neutral reasons will not be overturned unless it is clearly erroneous. K.S. v. Carr, 618 So.2d 707, 710 (Ala.1993), citing Ex parte Branch, 526 So.2d at 622.”

Ex parte Brooks, 695 So.2d 184, 190 (Ala.1997).

Defense counsel stated that she had struck veniremembers 8 and 9 because they allegedly had been laughing and talking and had not been attentive while she asked questions during the voir dire proceedings. However, the trial court indicated that it had watched the entire venire during the voir dire proceedings. Apparently, it did not observe the conduct about which counsel complained because it told counsel she should have brought any such conduct to his attention. “The trial court is in a better position than the appellate court to distinguish bona fide reasons from sham excuses.” Heard v. State, 584 So.2d 556, 561 (Ala.Crim.App.1991). Also, the trial court is in the best position to evaluate the demeanor of the veniremembers. See Kuk v. State, 602 So.2d 1213 (Ala.Crim.App.1992). Based on the record before us, we do not conclude that the trial court’s finding was clearly erroneous.

V.

Next, the appellant argues that the trial court erroneously refused to instruct the jury on reckless endangerment. During the charge conference, he requested such an instruction, and the trial court refused his request. However, the appellant did not object to the trial court’s refusal to give the requested instruction either at that time or after the trial court’s oral charge. In fact, after the trial court had completed its oral charge, the appellant stated that he was satisfied with the court’s oral charge.

“No party may assign as error the court’s ... failing to give [an] instruction ... unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.”

Rule 21.3, Ala. R.Crim. P. Because the appellant did not object to the trial court’s refusal to give his requested instruction, he did not preserve this argument for our review. See Rule 21.3, Ala. R.Crim. P.; Bullock v. State, 697 So.2d 66 (Ala.Crim.App.1997).

VI.

Finally, the appellant argues that the trial court erroneously admitted evidence about his collateral bad acts. However, he did not object at the time the evidence was admitted. Rather, he raised this issue for the first time in his “Motion for Judgment of Acquittal or in the Alternative, Motion for New Trial or Arrest of Judgment.” Absent a timely and sufficient objection at trial, a motion for a new trial will not preserve an issue for appellate review. See Hamrick v. State, 548 So.2d 652 (Ala.Crim.App.1989). Therefore, this argument is not properly before this court.

Fop the above-stated reasons, we affirm the trial court’s judgment.

AFFIRMED.

McMILLAN, PM., concurs; SHAW, J., concurs in the result, with opinion, which COBB, J., joins; WISE, J., concurs in the result.

SHAW, Judge,

concurring in the result.

I believe that this case is distinguishable from Sullens v. State, 878 So.2d 1216 (Ala.Crim.App.2003), an opinion in which Judge Cobb and I concurred in part and dissented in part, in that, here, the trial court constructively amended the indictment by charging the jury on the necessary culpable mental state. In Sullens, the indictment did not allege, and the jury was not instructed on, any culpable mental state. The Alabama Supreme Court has held that a trial court’s instructions to the jury may constitute an amendment to the indictment. See Ash v. State, 843 So.2d 213 (Ala.2002). See also Gamble v. State, 758 So.2d 1125 (Ala.Crim.App.1999); and Floyd v. State, 659 So.2d 961 (Ala.Crim.App.1994). In Hampton v. State, 815 So.2d 571 (Ala.Crim.App.2001), this Court held that an indictment, which is otherwise sufficient, may be amended, even without the consent of the defendant, to supply or correct an allegation relating to the defendant’s intent or guilty knowledge. In the present case, the trial court instructed the jury that it could not convict the appellant unless it found that he had intended to shoot into the vehicle. The record indicates that the appellant’s defense centered on his argument that the gun had fired accidentally during a struggle. Based on an examination of the record and the briefs, it appears that the appellant cannot, and does not, argue that he was in any way prejudiced by the trial court’s amendment of the indictment. The appellant was fully aware of the nature of the charge against him, and there is no indication that he was unable to prepare and present a defense. Because the amendment did not charge an additional or different offense, and because there was no prejudice to any of the appellant’s substantial rights, no reversible error occurred when the trial court constructively amended the indictment. Therefore, I concur in the result reached by the majority.

COBB, J., concurs.

      “ ' 11 Because § 32-5A-192(b) uses the word “unintentionally,” § 13A-2-2(l), defining “intentionally,” has no field of application.’

      “ 3 Unlike the indictment in Ex parte Lewis, 811 So.2d 485 (Ala.2001), which the appellants cite, the indictments in this case did not, by omitting the culpable mental state, permit the appellants to be convicted of a greater offense while charging them only with a lesser offense.”

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . The appellant submitted several requested jury instructions on intent and knowledge. Those requested instructions were refused by the trial court.


author: WISE, Judge. BASCHAB, Judge,

text:
    David CLARK, Jr. v. STATE of Alabama.
    CR-02-0653.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Rehearing Denied Aug. 15, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021928.
    David Clark, Jr., pro se.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

COBB and SHAW, JJ., concur.

BASCHAB, J., dissents, with opinion, which McMILLAN, P.J., joins.

BASCHAB, Judge,

dissenting.

Because this case is materially indistinguishable from Capps v. State, 747 So.2d 358 (Ala.Crim.App.1999), and Crenshaw v. State, 740 So.2d 478 (Ala.Crim.App.1998), I respectfully dissent. Even though the appellant’s sentence fell within the statutory range of punishment for a defendant who has one prior felony conviction, we do not know what prior convictions the trial court considered when it sentenced the appellant. Therefore, we should remand this case for the circuit court to resentence the appellant using only one prior conviction.


author: COBB, Judge.

text:
    Charlie Junior ALLEN v. CITY OF DOTHAN.
    CR-02-0760.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Robert Aaron Gartlan, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   COBB, Judge.

Charlie Junior Allen pleaded guilty to two counts of criminal trespass, violations of §§ 13A-7-2 and 13A-7-4, Ala.Code 1975. The district court judge, sitting in the circuit court, sentenced Allen to 90 days’ hard labor and ordered him to pay a $100 fine, a $25 victims compensation assessment, and court costs for each count. The circuit court ordered that the sentences were to run concurrently. The circuit court suspended Allen’s sentence on the condition that Allen pay $100 per month toward his fines and costs and that he conduct himself in a reasonable and lawful manner for two years.

During sentencing proceedings, the circuit court notified Allen that a review hearing was scheduled for August 29, 2002. Allen failed to appear at the review hearing, and the trial court issued a writ of arrest for Allen. Allen was arrested on September 9, 2002. According to the case action summary sheet, a review hearing was set for October 25, 2002. The notation on the case action summary on that date reflects that Allen’s suspended sentence was revoked because Allen had willfully failed to pay as ordered.

Allen 'appeals from the Houston Circuit Court’s revocation of his suspended sentence, arguing that the circuit court failed to comply with the due-process standards set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). He claims (1) that the circuit court failed to comply with the mandates of Rules 27.1 and 27.6(e), Ala. R.Crim. P., when the circuit court entered the initial probation orders; (2) that he was denied due process because the proceedings were not initiated by a petition from the prosecutor, probation officer, or the sentencing court as mandated by Rule 27.4, Ala. R.Crim. P.; (3) that he was denied due process because no initial appearance or revocation hearing was conducted pursuant to Rules 27.4 and 27.6, Ala. R.Crim. P.; (4) that the evidence was insufficient as a basis on which to revoke his probation; (5) that the trial court failed to make a written statement or an oral statement for the record setting forth the evidence relied upon and the reasons for revoking Allen’s probation as mandated by Rule 27.6(f), Ala. R.Crim. P.; and (6) that he was denied a court reporter in the circuit court. The State requests that we remand this matter to the trial court for that court to amend its revocation order.

“The general rules of preservation apply in revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized the following exceptions to the general rules: (1) the requirement that there be an adequate order of revocation, and (2) the requirement that a revocation hearing actually be held. Id. This Court has also held that a defendant can argue for the first time on appeal the trial court’s failure to inform him of his right to request counsel for probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).”

Adams v. State, 844 So.2d 622, 623 (Ala.Crim.App.2002).

In the instant case, the record on appeal contains only a written statement in the case action summary that states that Allen’s suspended sentence was revoked for failure to pay. There is no separate revocation order in the record. If the entry in the case action summary is the trial court’s revocation order, it is insufficient in that it does not list the evidence relied upon to revoke Allen’s suspended sentence. Furthermore, the record does not contain a transcript of a revocation hearing. Allen claims that no transcript exists because the circuit court failed to record any proceedings. It is not clear whether a hearing was, in fact, held.

Therefore, this matter is remanded for the Houston Circuit Court to make a finding as to whether a revocation hearing was held. If no hearing was held, the circuit court should conduct a hearing as mandated by § 15-22-54, Ala.Code 1975. However, if the circuit court determines that Allen did receive a revocation hearing, the trial court needs to issue a sufficient order of revocation that sets forth the evidence relied upon and the reasons for revoking Allen’s probation. Due return shall be made to this Court within 60 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . Although the trial court did not use the term “on probation,” the sentence entered, was, in essence, an order of probation. Therefore, we are treating this, as the defendant does, as review of the trial court’s revocation of probation.

       Note from the reporter of decisions: On November 14, 2003, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author:
COBB, Judge. BASCHAB, Judge,
      SHAW, Judge,

text:
    Sonja Renall UNDERWOOD v. STATE of Alabama.
    CR-01-1812.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.

      Bill Marthaler, Tuscumbia, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

On February 13, 2002, Sonja Renall Underwood was convicted of attempted murder and first-degree robbery, violations of §§ 13A-6-2(a)(l), 13A-4-2, and 13A-8-41(a)(1), Ala.Code 1975. On March 14, 2002, the trial court sentenced Underwood to consecutive life sentences for the two convictions. On April 11, 2002, Underwood filed a motion for a new trial. On May 29, 2002, after holding an evidentiary hearing and more than 60 days after the pronouncement of sentence, the trial court purportedly denied the motion. This appeal followed.

Because we remand this cause to the trial court with directions, we pretermit discussion of any of Underwood’s substantive issues until the trial court files a return to our remand order.

Underwood argues that his trial counsel rendered ineffective assistance because, he says, counsel knew that he was mentally ill, yet failed to request a psychiatric evaluation. In addressing this argument, we take the opportunity to revisit some of our caselaw concerning Rule 24.4, Ala. R.Crim. P., and our treatment of cases in which a motion for a new trial has been denied by operation of law.

We have held that, absent express consent of the parties on the record that a hearing on a motion for a new trial be continued, the trial court lacked jurisdiction to conduct a hearing more than 60 days after sentence is pronounced, regardless of the fact that both the State and the defendant participated in the hearing and that neither party complained about a lack of express consent of the parties on the record. See Edgar v. State, 646 So.2d 681, 683 (Ala.Crim.App.1993), aff'd in part and rev’d in part, 646 So.2d 683 (Ala.1994), quoting Box v. Box, 536 So.2d 83 (Ala.Civ.App.1988). See also Rogers v. State, 819 So.2d 643 (Ala.Crim.App.2001); Similton v. State, 672 So.2d 1363 (Ala.Crim.App.1995). However, the Alabama Supreme Court has,held that this Court nonetheless has the authority to reinstate the trial court’s jurisdiction over the matter in order that the trial court can conduct a hearing on a motion for a new trial that, although it had been denied by operation of law, nonetheless appeared to have had merit. See Ex parte Edgar, 646 So.2d 683 (Ala.1994).

In this case, the trial court conducted an evidentiary hearing, although the motion for a new trial had already been denied by operation of law. Underwood’s argument in his motion for a new trial regarding his mental competency was facially meritorious. At the hearing, both parties argued the merits of the motion for a new trial; neither party complained that the hearing was untimely because the motion for a new trial had already been denied by operation of law. Compare Girard v. State, [Ms. CR-01-0403, November 22, 2002] - So.2d - (Ala.Crim.App.2002); Rutherford v. State, 612 So.2d 1277 (Ala.Crim.App.1992); Atwell v. State, 594 So.2d 202 (Ala.Crim.App.1991); and Ex parte Williams, 571 So.2d 987 (Ala.1990), all standing for the proposition that, when the trial court rules on the merits of a pretrial motion under Rule 15.2, Ala., R.Crim. P., and the State does not object to the untimeliness of the motion, this Court cannot hold that the issue was procedurally barred.

If we are to discount the evidence presented during the hearing on the motion for a new trial, we are left with Underwood’s assertion that his trial counsel rendered ineffective assistance by failing to request a mental-competency evaluation based on the fact that Underwood was diagnosed with paranoid schizophrenia some 10-15 years before the offense in question and the fact that Underwood had, as a teenager, been committed to the Riv-erbend Center for Mental Health. Nothing in the record refutes his facts, and nothing in the record refutes his allegation that he was not mentally competent to stand trial.

In a case such as this, rather than send this cause back to the trial court for it to conduct the very same hearing it has already conducted, in the interest of judicial economy, we prefer to remand this cause for the trial court to determine whether the proceedings were extended beyond the 60 days allowed in Rule 24.4 by express agreement of the parties. Compare, e.g., D.W.L. v. State, 821 So.2d 246 (Ala.Crim.App.2001) (record certified in response to an order from this Court); W.R.C. v. State, 681 So.2d 1100 (Ala.Crim.App.1995) (remanded with directions to certify the record in an opinion), and Brown v. State, 534 So.2d 324 (Ala.Crim.App.1986) (remanded with directions to certify the record in an opinion), all standing for the proposition that the act of certification of the record under Rule 28(A)(1), Ala. R. Juv. P., may be performed after the record has been transmitted to the appellate court.

Although the record is silent, and Rule 24.4 requires' that the express consent be on the record, we consider the parties’ implied consent, that is, their failure to object to the untimeliness of the hearing, as evidence of their express consent to carry the motion for a new trial past the sixtieth day. Although this implied consent is not sufficient according to Rule 24.4, this Court chooses to authorize a more workable procedure for dealing with a hearing on a motion for a new trial conducted after the expiration of the 60-day period in Rule 24.4. Simply remanding this cause another hearing on the same subject with the same witnesses would be a waste of judicial resources.

Therefore, we remand this cause for the circuit court to determine whether the motion was continued by express agreement of the parties. If the trial court finds that it was, it is to amend the case action summary to .reflect that fact. If the trial court finds that the motion was not continued by express agreement of the parties, it is to conduct another hearing on the motion for a new trial. The trial court shall then submit its findings and a transcript of the second hearing on return to remand. Due return shall be made within 42 days of the issuance of this- opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J, and WISE, J., concur. BASCHAR, J., concurs in the result, with opinion. SHAW, J., concurs in the result, with opinion.

BASCHAB, Judge,

concurring in the result.

Because this case is factually indistinguishable from Edgar v. State, 646 So.2d 683 (Ala.1994), we do not have the authority to “authorize a more workable procedure for dealing with a hearing on a motion for a new trial conducted after the expiration of the 60-day period in Rule 24.4[, Ala. R.Crim. P].” 879 So.2d at 613. The Aabama Supreme Court promulgated Rule 24.4, Aa. R.Crim. P., and decided Edgar, and we are bound by its decisions. See § 12-3-16, Aa.Code 1975. Furthermore, the majority’s decision conflicts with Heard v. State, [Ms. CR-01-1810, August 9, 2002] - So.2d -, - (Aa.Crim.App.2002), in which we stated:

“[A] motion for a new trial filed pursuant to Rule 24, Aa. R.Crim. P., is deemed denied by operation of law if not ruled on within 60 days from the date of sentencing or if not continued to a date certain upon agreement of the parties and entered of record before the 60-day time period expires.
“A nunc pro tunc order ‘cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said.’ McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995). The trial court’s order attempted to correct a jurisdictional defect, i.e., to restore jurisdiction to the trial court after the posttrial motion had been denied by operation of law pursuant to Rule 24.4, Ala. R.Crim. P. State v. Property at 2018 Rainbow Drive, 740 So.2d 1025 (Ala.1999). The circuit court’s order was void. Any order attempting to extend the 60-day period provided by Rule 214, Ala. R.Crim. P., must be entered before the 60-day period expires. Ex parte Caterpillar, Inc., supra [708 So.2d 142 (Aa.1997) ].”

(Emphasis added.) Finally, parties to an action cannot impliedly consent to, and thereby waive, a jurisdictional defect. Based on the Aabama Supreme Court’s decision in Edgar, we should remand this case to the trial court for that court to conduct a new hearing. Therefore, I concur in the result.

SHAW, Judge,

concurring in the result.

I agree to remand this case to the trial court, although not for the reason stated by the majority. Based on the record certified to this Court, which contains no indication of an express agreement between the prosecutor and the defendant or the defendant’s counsel to carry the motion past the sixtieth day to a date certain, I would remand this ease for the trial court to conduct another evidentiary hearing on the motion for a new trial in accordance with the Alabama Supreme Court’s opinion in Edgar v. State, 646 So.2d 683 (Ala.1994), a case materially indistinguishable from the present case.

Furthermore, I note that to the extent the majority may be instructing the trial court to “consider the parties’ implied consent, that is, their failure to object to the untimeliness of the hearing, as evidence of their express consent to carry the motion for a new trial past the sixtieth day,” 879 So.2d at 613, such an instruction cannot be reconciled with the plain language of Rule 24.4, Ala.R.Crim.P. See Personnel Bd. for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977), in which the Court of Civil Appeals discussed the “express consent” requirement of Rule 59.1, Ala.R.Civ. P., and Black’s Law Dictionary 305 (6th ed.1990), defining “express consent” as “[t]hat directly given, either viva voce or in writing .... positive, direct, unequivocal consent, requiring no inference or implication to supply its meaning.” See also Harrison v. Alabama Power Co., 371 So.2d 19, 20-21 (Ala.1979)(“The consent or assent to a continuance of a hearing does not satisfy the requirement that the record show the parties’ express consent to an extension of the 90-day period” undér Rule 59.1.).

      . The notice of appeal in this case was filed on the same date the appellant was sentenced. However, the notice of appeal was not transmitted to this Court until after the motion for a new trial was purportedly denied by the order of the trial court. Had the notice of appeal been timely transmitted to this Court, our current notice procedure may have prevented the late hearing in this case. We encourage circuit courts to transmit notices of appeal to this Court as soon as practicable.

      . We point out that the result in this case may have been different had Underwood waited to file his notice of appeal until after the motion for new trial had been denied. If that had been the case, and on remand the trial court determined that there was not express agreement to continue the motion, then the motion for a new trial would have been denied by operation of law and the 42-day period' for appeal would have begun to run on that date. Thus, Underwood would have run the risk of his appeal being dismissed as untimely, regardless of the fact that an untimely hearing was held, because there was no express agreement in the record to continue the motion. We encourage defendants to file their notices of appeal as soon as practicable.

       Note from the reporter of decisions: On November 21, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.

      . "Express consent" is defined in Black’s Law Dictionary 300 (7th ed.1999), as "[c]onsent that is clearly and unmistakably stated” as contrasted with "implied consent” — "[c]on-sent inferred from one's conduct rather than from one's direct expression.”


author: PER CURIAM. CANTERO, J.,

text:
    Thomas Lee GUDINAS, Appellant, v. STATE of Florida, Appellee.
    No. SC03-416.
    Supreme Court of Florida.
    May 13, 2004.
    Rehearing Denied July 29, 2004.
    Leslie Anne Scalley, Assistant CCC, Capital Collateral Regional Counsel — Middle, Tampa, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

We have for review an appeal from the denial of a successive motion for postcon-viction relief filed by Thomas Lee Gudinas, a prisoner under a sentence of death, under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. Y, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court’s denial of the successive motion for post-conviction relief.

Facts

In 1995, Gudinas was convicted of first-degree murder, two counts of sexual battery, attempted sexual battery, and attempted burglary with an assault. At trial, the jury returned a guilty verdict on all counts. After the penalty phase, the jury recommended a death sentence by a vote of ten to two. After adjudicating Gudinas guilty on all counts, the trial court sentenced him to death for first-degree murder. The trial judge adjudicated Gudinas a habitual violent felony offender (HVFO) and sentenced him to thirty years’ imprisonment for attempted burglary with an assault, thirty years for attempted sexual battery, and life imprisonment for each count of sexual battery. This Court affirmed Gudinas’s convictions and sentences. Gudinas v. State, 693 So.2d 953, 956-59 (Fla.1997). Subsequently, this Court affirmed the circuit court’s denial of postconviction relief and denied habeas relief. Gudinas v. State, 816 So.2d 1095 (Fla.2002).

On October 14, 2002, Gudinas filed a successive postconviction motion, challenging his death sentence in light of the U.S. Supreme Court’s decision in Ring v. Arizona and his HVFO sentences under Apprendi v. New Jersey. On January 7, 2003, the circuit court denied relief. Gudi-nas appeals on the basis that despite this Court’s rejection of similar Ring challenges in and since Bottoson v. Moore, he is entitled to postconviction relief.

Ring v. Arizona

This Court has consistently rejected similar claims. For example, this Court recently rejected a Ring claim in Rivera v. State, 859 So.2d 495 (Fla.2003), wherein we stated:

Rivera asserts that Florida’s capital sentencing scheme violates the United States Constitution under the holding of Ring. This Court addressed similar contentions in Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002), and King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002), and, while there was no single majority view expressed, we denied relief. We have since rejected numerous similar claims and find that Rivera is likewise not entitled to relief on this claim.

Id. at 508. The same analysis applies to this case.

Further, two of the three aggrava-tors involved in this case are considered by this Court to meet the Ring requirements: prior violent felony and that the murder was committed in the course of an enumerated felony (sexual battery). This Court has held that the aggravators of murder committed “during the course of an enumerated felony” and prior violent felony comply with Ring review because they involve facts that were already submitted to a jury during trial. See Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003) (rejecting the defendant’s Apprendi claim in light of Ring on the basis of Bottoson, but noting that the “during the course of an enumerated felony” and the prior violent felony aggravators “involve[d] circumstances that were submitted to the jury and found to exist beyond a reasonable doubt”); Banks v. State, 842 So.2d 788, 793 (Fla.2003) (denying Ring claim pursuant to Bottoson, but pointing out that the “during the course of an enumerated felony” and the prior violent felony aggravators also justified denying the claim); see also Anderson v. State, 863 So.2d 169 (Fla.2003) (denying Apprendi/Ring claim consistent with similar Florida cases, also because the jury unanimously recommended death, and because the trial judge found the aggravator of prior violent felony), cert. denied, - U.S. -, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004); Rivera, 859 So.2d at 508 (finding that Rivera was not entitled to relief based on Bottoson, the fact that he had a unanimous jury death recommendation, and the existence of the two aggravators: prior violent felony and murder committed “during the course of an enumerated felony”).

In sum, this Court has rejected similar Ring claims and has held that the aggra-vators of prior violent felony and “murder committed during the course of an enumerated felony” comply with a Ring analysis because they involve facts already submitted to and found by a jury. Accordingly, we affirm the trial court’s denial of relief as to Gudinas’s Ring claim.

HVFO Sentences

Gudinas also argues on appeal that the trial court erred when it adjudicated him as an HVFO and sentenced him to thirty years’ imprisonment for his attempted burglary with an assault conviction and his attempted sexual battery conviction. He maintains that HVFO enhancements on those two counts exceeded the statutory maximum and the dictates of Apprendi v. New Jersey. However, Gudinas has not properly preserved this claim for appellate review. Rule 3.851(e)(2)(B) requires petitioners to plead the reasons that their claims “were not raised in the former motion or motions.” Gudinas made the HVFO argument for the very first time in his successive 3.851 motion. Clearly, Gu-dinas has had multiple post-trial opportunities to challenge his HVFO convictions and he did not challenge them on direct appeal, see Gudinas, 693 So.2d at 959, nor did he raise the argument in his first postconviction motion that Apprendi impacted his HVFO sentences (despite the fact that he did argue Apprendi in his habeas petition). See Gudinas, 816 So.2d at 1100-01, 1111. Further, Gudinas does not now explain why this argument was not previously raised. Therefore, this claim is procedurally barred as not being properly raised as a claim within a successive 3.851 motion.

Aside from the procedural bar to this issue, this claim has no merit. In Apprendi, the U.S. Supreme Court exempted prior convictions from facts that must be submitted to a jury because they increase the penalty for a crime. 530 U.S. at 490, 120 S.Ct. 2348. Additionally, this Court has held that the sentencing enhancement scheme found in the Prison Releasee Reoffender Act (PRR), which is akin to HVFO sentencing, is unaffected by Apprendi. See Robinson v. State, 793 So.2d 891, 893 (Fla.2001) (holding that Florida’s PRR statute is not invalidated by Apprendi-. “[T]he [PRR] Act does not increase the maximum statutory penalty. Here the sentencing court’s discretion in selecting a penalty within the statutory range is simply limited. Accordingly, proof to the jury of a defendant’s release which subjects a defendant to a sentence under the Act is not required.”); Parker v. State, 790 So.2d 1033, 1035-36 (Fla.2001); McGregor v. State, 789 So.2d 976, 977-78 (Fla.2001); Sheffield v. State, 794 So.2d 592, 594 (Fla.2001); Barnes v. State, 794 So.2d 590, 592 (Fla.2001); Smith v. State, 793 So.2d 889, 891 (Fla.2001); Marshall v. State, 789 So.2d 969, 970-71 (Fla.2001); McDowell v. State, 789 So.2d 956, 957 (Fla.2001); Sheffield v. State, 789 So.2d 340, 342 (Fla.2001); Balkcom v. State, 789 So.2d 949, 950-51 (Fla.2000).

Notwithstanding the recidivist exception in Apprendi, and our application of that exception to Florida’s PRR Act, this Court has consistently ruled that the habitual offender statutes meet constitutional muster. See Eutsey v. State, 383 So.2d 219, 222-23 (Fla.1980) (upholding the habitual offender act upon the defendant’s argument that the act did not afford him the same rights as an accused person in the guilt portion of a criminal trial); see also Warren v. State, 609 So.2d 1300 (Fla.1992) (holding that the HVFO statute was constitutional upon challenges that the act was inequitable, subject to arbitrary and capricious application, and violated double jeopardy and citing Tillman v. State, 609 So.2d 1295 (Fla.1992), and Ross v. State, 601 So.2d 1190 (Fla.1992), for the same propositions).

Accordingly, for the reasons set out above, we affirm the trial court’s denial of relief.

It is so ordered.

WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur.

ANSTEAD, C.J., concurs in result only.

CANTERO, J.,

specially concurring.

I concur in the majority opinion. Moreover, regarding the petitioner’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, - So.2d -, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively.

WELLS and BELL, JJ., concur.

      . 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . 833 So.2d 693 (Fla.2002), cert. denied, 537 U.S. 1070, 123 S.Ct 662, 154 L.Ed.2d 564 (2002).


author: SHARP, W., J.

text:
    Robert WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-145.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Robert Wood, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

ON ORDER TO SHOW CAUSE

In Wood v. State, 867 So.2d 590 (Fla. 5th DCA 2004), appellant was ordered to show cause why he should not be precluded from filing further pro se pleadings. See State v. Spencer, 751 So.2d 47 (Fla.1999). We have carefully considered appellant’s response and find that good cause has not been shown. Appellant’s claim that it was not his intention to “vex, harass or waste the Courts’ judicial time and effort” is belied by his repeated pleadings and appeals rearguing the validity of his sentence.

Therefore, in order to conserve judicial resources, appellant is prohibited from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in the underlying case. Any pleadings or papers filed in this court regarding said conviction and sentence must be reviewed and signed by an attorney licensed to practice in this state. The clerk of the Fifth District Court of Appeal is directed not to accept any further pro se pleadings or filings from appellant in Orange County, Ninth Judicial Circuit Court Case No. 90-10695.

GRIFFIN and THOMPSON, JJ„ concur.


author: PER CURIAM.

text:
    G. PIERCE WOODS MEMORIAL HOSPITAL and State of Florida, Division of Risk Management, Appellants, v. Cornelia LEWIS, Appellee.
    No. 1D02-4583.
    District Court of Appeal of Florida, First District.
    May 18, 2004.
    Mary L. Wakeman, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellants.
    Brian Sutter, Esquire, Port Charlotte; Bill McCabe, Esquire, Longwood, for Ap-pellee.
   PER CURIAM.

The claimant, Cornelia Lewis, worked in patient care at G. Pierce Woods Memorial Hospital when she suffered an injury to her lower back while lifting a patient on June 30, 1997. The claimant was diagnosed with a segmental herniated disk fragment in the lumbar spine. The elaim-ant also suffered from hypertension that prevented a surgical solution to her back problems. The claimant has received orthopedic as well as psychological treatment.

The claimant filed a petition requesting temporary total and temporary partial disability benefits as well as permanent total disability benefits. The judge of compensation claims determined that the claimant’s physical and psychiatric conditions were causally related to her work injury and awarded her temporary partial disability benefits and permanent total disability benefits.

We affirm the award of temporary partial disability benefits because there is competent substantial evidence to support the JCC’s award of these benefits. See Neavins v. City of St. Petersburg, 823 So.2d 288 (Fla. 1st DCA 2002). We reverse the permanent total disability benefits as premature because the claimant had not yet reached psychiatric maximum medical improvement (“MMI”) and there was no exception to the MMI requirement that was applicable to the claimant. See Rivendell of Ft. Walton v. Petway, 833 So.2d 292 (Fla. 1st DCA 2002).

AFFIRMED in part, REVERSED in part, and REMANDED.

ALLEN, KAHN and POLSTON, JJ., concur.

      . Appellants argue that the JCC erred by admitting the testimony of Dr. Hager. We have concluded that any error in admitting the testimony of Dr. Hager was harmless. Appellant’s other arguments regarding the continuance of the final hearing and cumulative errors are rejected without further comment.


author: PER'CURIAM.

text:
    Robert J. RAY, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-0281.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Robert J. Ray, pro se, appellant.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for appellee.
   PER'CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

BARFIELD, DAVIS and BENTON, JJ., concur.


author: PER CURIAM. HAWKES, J.

text:
    Phillip POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4906.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

We affirm Powell’s conviction but certify to the Supreme Court of Florida as a matter of great public importance the following question:

IS THE FLORIDA STANDARD JURY INSTRUCTION OF “POSSESSION OF PROPERTY RECENTLY STOLEN” AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

See Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003), rev. granted, 864 So.2d 401 (Fla.2004).

AFFIRMED.

WOLF, C.J., and BROWNING, J., Concur; HAWKE S, J., Concurs with Opinion.

HAWKES, J.

I concur in the result, but would not certify a question.


text:
    Milton BULLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2312.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Shasta W. Kruse and Karen M. Holland, Assistant Attorney Generals, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order of the trial court striking his motion to withdraw plea filed pursuant to Rule 3.170(1), Florida Rules of Criminal Procedure. The State acknowledges that the trial court erred by striking appellant’s motion. On the procedural facts of the present case, the notice of appeal filed by appellant, some five days after the timely motion to withdraw a plea, did not automatically divest the trial court of jurisdiction to consider the motion to withdraw. “[A] pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abey-anee until the filing of a signed, written order disposing of such motion.” Fla. R.App. P. 9.020(h)(3).

The order striking appellant’s motion is VACATED, and the case is REMANDED for further proceedings on appellant’s motion.

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Richard CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1967.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Robert Augustus Harper and Michael Robert Ufferman of the Robert Augustus Harper Law Firm, P.A., Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   ON MOTION FOR REHEARING

PER CURIAM.

This cause is before us on Appellant’s motion for rehearing. We grant the motion for rehearing and, accordingly, withdraw our former opinion of March 30, 2004, and substitute in its place this corrected opinion.

AFFIRMED. See Frazier v. State, 29 Fla. L. Weekly D369, - So.2d -, 2004 WL 221043 (Fla. 1st DCA Feb.6, 2004); Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003). We certify conflict with Espindola v. State, 855 So.2d 1281, 1290 (Fla. 3d DCA 2003).

BOOTH, POLSTON and HAWKES, JJ., concur.


author: WOLF, C.J.

text:
    Ivan L. HANSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1650.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Ivan Hansell appeals his sentence and the summary denial of his 3.800 motion to correct his sentence. Although the State concedes error and the trial court attempted to correct the error, it did so more than 60 days after appellant filed his 3.800 motion. Therefore, we must find the November 7, 2003, sentencing order a nullity. See Fla. R.Crim. P. 3.800(b)(2)(B); Robinson v. State, 850 So.2d 658, 660 (Fla. 1st DCA 2003) (holding that the trial court did not have jurisdiction to enter an order on a rule 3.800 motion because no order was entered within 60 days from the filing of the motion, rendering the untimely order a nullity). Additionally, the trial court lacked jurisdiction to impose or alter Han-sell’s sentence on November 7, 2003, when there was a pending appeal from the sentence. See State v. Williams, 780 So.2d 1031 (Fla. 1st DCA 2001). We therefore vacate the sentence and remand for resen-tencing.

BROWNING and HAWKES, JJ., concur.


text:
    Jack J. WELLBORN, Jr., and WRC Development, Inc., Appellants, v. Shane L. CANNON and Daniel P. Rossi, Appellees.
    No. 1D04-1867.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    H. Bart Fleet of Fleet, Spencer, Martin & Kilpatrick, P.A., Shalimar, for Appellants.
    Daniel C. Campbell, Crestview; Edward P. Fleming, Pensacola; Chris Cadenhead, Destín; Shannon Porath, Santa Rosa Beach; and Belinda B. Dekozan, Pensacola, for Appellees.
   PER CURIAM.

Upon consideration of the appellants’ response to the Court’s order of May 11, 2004, the Court has determined that the order on appeal is not final. Specifically, because the order reserves jurisdiction to reconsider its decision not to establish a period for the filing of claims, the judicial labor has not been brought to a close and the order is not final. See generally McGurn v. Scott, 596 So.2d 1042 (Fla.1992) (holding that a reservation to consider an issue that is inherent in the case interferes with the finality of an order). Accordingly, the appeal is dismissed for lack of jurisdiction.

WEBSTER, VAN NORTWICK and POLSTON, JJ„ Concur.