author: MURDOCK, Judge.

text:
    Huey McLENDON v. Roland L. HEPBURN.
    2011070.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.

      Gregory B. McAtee, Mobile, for appellant.
    Michael F. Braun, Montgomery, for ap-pellee.
   MURDOCK, Judge.

Huey McLendon appeals from an order of the Mobile Circuit Court granting defendant Roland Hepburn’s motion to cancel the registration of a revived judgment and to abate all proceedings on that judgment. We affirm.

In 1979, McLendon sued Hepburn alleging breach of a contract relating to the construction of a home. Hepburn answered the complaint, but apparently did not otherwise appear before the trial court, and, on April 22, 1981, the trial court entered a default judgment for McLendon and awarded him $25,000. That judgment was never executed.

On December 18, 1997, McLendon filed a motion to revive the April 22, 1981, judgment. The trial court granted the motion on April 24, 1998. McLendon filed a garnishment proceeding against Hepburn on July 25, 2001, and Hepburn was served with notice of the garnishment proceeding on August 2, 2001. The bank that possessed the funds that McLendon sought to garnish filed an answer with the trial court on August 8, 2001, indicating that Hepburn had approximately $334 available. On August 14, 2001, McLendon filed a motion to condemn those funds, and those funds were condemned on September 21, 2001. Those funds were dispersed to McLendon’s attorney on October 2, 2001.

On October 5, 2001, however, Hepburn filed a motion styled “Motion to Alter, Amend, or Vacate Order Reviving Judgment as to Defendant Roland Hepburn.” The trial court denied Hepburn’s motion “pending a hearing scheduled on November 20, 2001 ... for the purpose of presenting evidence, if any, concerning the presumption that the judgment at issue is satisfied as set forth in § 6 — 9—191[, Ala. Code 1975].” Neither Hepburn nor his attorney appeared at the hearing; the trial court took testimony from McLen-don’s previous attorney and heard arguments from his current counsel. After the hearing, the trial court denied Hepburn’s motion to alter, amend, or vacate, and affirmed the order reviving the 1981 judgment entered by it on April 24, 1998. No appeal was taken from that judgment, and McLendon discharged the garnishment. McLendon then obtained a certificate of judgment referencing the revived 1981 judgment and proceeded to register that certificate of judgment in the counties of Autauga, Elmore, and Montgomery.

On January 24, 2002, Hepburn filed a motion styled “Motion to Cancel Registration and Abate All Proceedings,” in which he requested that the trial court cancel the registration of the revived judgment in each county in which it had been registered and prohibit McLendon from taking any further action on the revived judgment. The motion was briefed and argued by the parties. On March 28, 2002, the trial court issued an order granting Hepburn’s January 24, 2002, motion, concluding that “[a]ll actions for writs of garnishments filed by [McLendon] after April 22, 2001 are based on a judgment no longer in existence and [are] conclusively presumed satisfied.”

On May 13, 2002, in response to a “motion to reconsider” filed by McLendon, the trial court entered a revised order reciting the same findings of fact and conclusions of law as in its March 28, 2002, order. The court also stated in its May 13 order that that order resolved all matters between the parties, and it certified the order as final pursuant to Rule 54(b), Ala. R. Civ. P. McLendon filed a timely notice of appeal.

The trial court summarized the issue before it in both its March 28, 2002, and its May 13, 2002, orders as follows:

“What is the effect of reviving a judgment, more than ten years but not more than twenty years, after the judgment’s entry; in other words, does reviving a judgment more than ten years but not more than twenty years after its entry, grant a plaintiff-creditor more than twenty years from the judgment’s entry on which to execute upon the judgment?”

The trial court answered this question in the negative based on its interpretation of the pertinent Alabama statutes and case-law.

Before evaluating that decision, we must first determine whether the trial court had jurisdiction to enter its order granting the relief requested by Hepburn. “[T]he question of jurisdiction is a question of primary importance in every case, and, if there is an absence of jurisdiction over the subject-matter, this ends the inquiry....” Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930). ‘We must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal.” City of Huntsville v. Miller, 271 Ala. 687, 689, 127 So.2d 606, 608 (1958).

The trial court’s March 28, 2002, and May 13, 2002, orders were entered in response to Hepburn’s January 24, 2002, motion styled “Motion to Cancel Registration and Abate All Proceedings.” As McLendon correctly points out, the Alabama Rules of Civil Procedure do not provide for such a postjudgment motion; therefore, it must be construed as something else in order for the court to recognize it as legitimate. Hepburn states that while his January 24, 2002, motion “does not cite a specific rule of civil procedure, it is clear that Hepburn’s motion complies with the grounds set forth in Rule 60(b)(5) and/or (6)[, Ala. R. Civ. P.].” “An appellate '[c]ourt looks to the essence of a motion, not necessarily its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure.’ ” Englebert v. Englebert, 791 So.2d 975, 976 (Ala.Civ.App.2000) (quoting Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998)). Thus, the first question we must consider is whether Hepburn’s January 24, 2002, motion could properly be construed, and whether it was construed, as a Rule 60(b) motion.

Rule 60(b)(5), Ala. R. Civ. P., states that a “court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding” if “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.” Hepburn contended in his motion that the April 22, 1981, judgment, which had been revived in 1998, was conclusively presumed to be satisfied after 20 years, and, therefore, Hepburn contended, McLendon’s attempts to have the revived judgment executed after the expiration of the 20-year limitation period should not have been honored because the original judgment was no longer enforceable. Hepburn thus contended that the trial court was within its discretion to construe the motion as a Rule 60(b)(5) motion, and we presume that it did so despite the fact that the trial court made no explicit finding to that effect.

McLendon contends, however, that Hepburn’s October 5, 2001, motion also was a Rule 60(b) motion, and, therefore, he contends, even if Hepburn’s January 24, 2002, motion was properly construed as a Rule 60(b)(5) motion, it was Hepburn’s second Rule 60(b) motion and such successive Rule 60(b) motions are generally denied. As this court stated in Roark v. Bell, 716 So.2d 1245, 1247 (Ala.Civ.App.1998), “successive Rule 60(b) motions on the same grounds are generally motions to reconsider the original ruling, which Rule 60(b) does not authorize.” Similarly, as we stated in Englebert:

‘[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion.... In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal... ' Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985). A Rule 60(b) motion cannot be used as a substitute for an appeal.”

Englebert, 791 So.2d at 977.

Hepburn counters by arguing that the October 5, 2001, motion appeared on its face to be a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the order reviving the 1981 judgment. A Rule 59(e) motion to alter, amend, or vacate a judgment, however, must be filed “not later than thirty (30) days after entry of the judgment.” Rule 59(e), Ala. R. Civ. P. The order reviving the 1981 judgment was entered on April 24, 1998; Hepburn’s motion styled “Motion to Alter, Amend, or Vacate Order Reviving Judgment” was- filed on October 5, 2001, well past the filing deadline for a Rule 59(e) motion. Thus, if the October 5, 2001, motion had been construed as a Rule 59(e) motion, the motion would have been due to be dismissed on procedural grounds. The trial court, however, took briefs from the parties and’held a hearing on the motion before denying it definitively; such actions are consistent with a treatment by the trial court of the motion as a Rule 60(b) motion.

Hepburn contends that even if the October 5, 2001, motion is construed as a Rule 60(b) motion, it does not follow that his January 24, 2002, Rule 60(b) motion was due to be denied because, Hepburn argues, the two motions were not made on “the same grounds.” See Roark, 716 So.2d at 1247 (noting that Rule 60(b) does not authorize successive motions “on the same grounds”). An examination of the contents of the two motions validates Hepburn’s argument.

In his October 5, 2001, motion, Hepburn posited two grounds for relief: “[1] That the plaintiff has not met [the] burden required to revive [the 1981] judgment and [2] the defendant did not receive service [of the motion to revive the judgment].” The first ground was based on § 6-9-191, Ala.Code 1975, which states that a judgment is presumed to be satisfied 10 years from the entry of -the judgment, and on § 6-9-190, Ala.Code 1975,. which states that a judgment cannot be revived, after 20 years from the date of its entry. Because McLendon did not move- to revive the 1981 judgment until 17 years after the date of its entry, Hepburn contended in his October 5, 2001, motion that McLendon had to prove that the judgment had not been satisfied and that McLendon had not done so. Neither this contention nor Hepburn’s contention that there had been a failure of service is “the same ground” as the ground that was presented in Hepburn’s January 24, 2002, motion.

Specifically, Hepburn contended in his January 24, 2002, Rule 60(b) motion that § 6-2-32, Ala.Code 1975, prescribes a statute of limitations of 20 years for the execution of a judgment. Once that 20-year period has expired, Hepburn argued, a judgment is conclusively presumed satisfied and a revival of that judgment does not extend or begin anew the running of the limitations period. Thus, on the basis of § 6-2-32, Hepburn requested that the trial court cancel the registration of the judgment against him in each of the counties in which McLendon had registered it. The trial court agreed with Hepburn’s argument and granted the relief requested.

The ground for relief stated by Hepburn in his January 24, 2002, motion is different than the grounds stated in Hepburn’s October 5, 2001, motion. Moreover, the January 24, 2002, motion did not operate as a motion requesting that the trial court reconsider its previous denial of the October 5, 2001, motion because the January 24, 2002, motion requested relief based on an entirely different ground than did the October 5, 2001, motion. Indeed, the second Rule 60(b) motion raised an issue that could not even have been raised during the revival-of-judgment proceedings because the statute of limitations had not yet expired when the trial court revived the 1981 judgment on April 24, 1998. Thus, the January 24, 2002, motion was not “a substitute for an appeal.” Englebert, 791 So.2d at 977.

Having determined that the trial court had jurisdiction to enter its order granting Hepburn’s January 24, 2002, motion, we now turn to the merits of Hepburn’s contention, with which the trial court agreed.

Section 6-2-32 states: “Within 20 years, actions upon a judgment or decree of any court of this state, of the United States or of any state or territory of the United States must be commenced.” McLendon concedes that this statute places a 20-year limitation for commencing actions on judgments, but he argues that an execution on a judgment is not an “action” within the meaning of the statute. McLendon contends that § 6-3-32 applies only to entirely new lawsuits and that the garnishment proceeding filed on July 25, 2001, does not qualify as such; thus, he argues, the statute has no applicability. McLendon cites the Black’s Law Dictionary definition of “action,” which states that it is a “[t]erm in its usual legal sense [that] means a lawsuit brought in a court; a formal complaint within the jurisdiction of a court of law.” Black’s Law Dictionary 28 (6th ed.1990) (emphasis added).

However, the foregoing definition continues, stating that an action “includes all .of the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court.” Id. (emphasis added). An execution of a judgment seeks enforcement of the right vindicated in court. We conclude that an execution on a judgment is an “action” upon that judgment.

McLendon next argues that the revival of the judgment he obtained on April 24, 1998, extended the time within which he could execute on and record the judgment by an additional 10 years, regardless of the 20-year statute of limitations in § 6-2-32. McLendon cites §§ 6-9-190, 6-9-191, 6-9-192, and 6-9-211, Ala.Code 1975, in support of this proposition. Section 6-9-190 states: “A judgment cannot be revived after the lapse of 20 years from its entry.” Section 6-9-191 provides, in pertinent part: “If 10 years have elapsed from the entry of the judgment without issue of execution ..., the judgment must be presumed satisfied, and the burden of proving it not satisfied is upon the plaintiff.” Section 6-9-192 provides that “[n]o execution shall issue on a judgment ... on which an execution has not been sued out within 10 years of its entry until the [judgment] has been revived.... ” Section 6-9-211 provides that a recorded certificate of judgment “shall be a lien in the county where filed on all property of the defendant which is subject to levy and sale under execution, and such lien shall continue for 10 years after the date of such judgment.... ”

The scheme that results from those statutes is that an original judgment may be executed at any time, without revival, within 10 years of the entry of that judgment. After 10 years, a judgment creditor seeking enforcement of the judgment must move for revival of the judgment and, in doing so, must overcome the presumption that the judgment has been satisfied. An order reviving a judgment cannot be obtained, however, more than 20 years after the original judgment was entered. Once revival of the judgment is obtained, the party is permitted to record the certificate of judgment, which may remain as a lien on the subject property for up to 10 years.

In essence, McLendon argues that the revival of the 1981 judgment he obtained 17 years after its original entry acts as a new judgment that negates enforcement of the 20-year statute of limitations and that his recording of the certificate of the revived judgment in three counties gave him 10 more years in which to execute on the judgment according to § 6-9-211. McLendon assures us that under this reading of the statutory scheme, 30 years is the maximum length of time that execution on a judgment could be maintained because, he states, § 6-9-190, Ala.Code 1975, would operate to foreclose a judgment creditor from obtaining another revival of a judgment after 20 years had passed from the date of the original judgment.

McLendon’s argument is inconsistent with the statutory provisions of Chapter 9 of Title 6 that are at issue here, especially when read in pari materia with § 6-2-32, and accepting his argument would deprive § 6-9-190 and § 6-2-32, which otherwise work in concert with one another to effect a 20-year limitations period, of any room for operation. Likewise, McLendon’s argument is at odds with repeated and longstanding pronouncements by Alabama courts regarding the nature of revived judgments.

First, if, as McLendon argues, a revived judgment truly does act like a new judgment, nothing would prevent a judgment creditor from obtaining an endless series of revivals and, accordingly, executing on the original judgment, or one of its revivals, at any time it may elect to do so in the future. The 20-year restriction on the revival of judgments purportedly imposed by § 6-9-190 would, in practice, be illusory. Section 6-2-32 would be rendered meaningless. We therefore reject McLen-don’s interpretation of the statutes at issue as being inconsistent with the principle that we cannot assume that in the passage of § 6-9-190 and § 6-2-32 the Legislature took it upon itself to do “a vain and useless thing.” State Home Builders Licensure Bd. v. Sowell, 699 So.2d 214, 218 (Ala.Civ.App.1997) (“[W]e recognize that a statute should be construed, if possible, to give effect to every section thereof, and that the legislature should not be deemed to have done a vain and useless thing.”).

Moreover, Alabama cases are unequivocal in their pronouncements regarding the nature of revived judgments. “ ‘ “The order to revive does no more than reinvest the [judgment creditor] with the right to have execution of his original judgment,’’ ’ ” a judgment that otherwise would be dormant after the passage of 10 years. Davis Int’l, Inc. v. Berryman, 730 So.2d 242, 244 (Ala.Civ.App.1999) (quoting Second Nat'l Bank of Cincinnati v. Allgood, 234 Ala. 654, 656, 176 So. 363, 365 (1937)) (emphasis added). This court’s opinion in Eatman v. Goodson, 36 Ala.App. 360, 58 So.2d 129 (1952), gives some indication of how long the Alabama courts have viewed revived judgments in this light:

“The office of scire facias [the common-law predecessor to the revival statute] to revive a judgment is not to seek a new judgment for debt, but the purpose of the proceeding is to revitalize a dormant judgment so as to enable the creditor to enforce by execution the judgment he has already obtained. Quill v. Carolina Portland Cement Co., 220 Ala. 134, 124 So. 305 [(1929)]; Baker, Fry & Co. v. Ingersoll, 37 Ala. 503 [(1861)]; Marx v. Sanders, 98 Ala. 500, 11 So. 764 [(1892)]; Mobile Drug Co. v. McCullough et al., 215 Ala. 682, 112 So. 238 [(1927)].”

36 Ala.App. at 362, 58 So.2d at 131.

Allgood provides perhaps the best parallel to the facts in this case. In Allgood, a plaintiff-creditor appealed a trial court’s dismissal of garnishment proceedings on a judgment. The judgment had been obtained in 1913; execution issued on the judgment immediately, but no property was found on which to execute. The plaintiff-creditor revived the judgment 17 years later in 1930. Twenty-three years after the entry of the original judgment, in 1936, the plaintiff-creditor sought writs of garnishment against the defendant-debtor’s property. The trial court deemed the judgment to have been conclusively satisfied 20 years after the date of its entry. Our Supreme Court agreed, quoting at length from Marx v. Sanders, 98 Ala. 500, 502-03, 11 So. 764, 764-65 (1892), regarding the nature of revived judgments:

“ ‘The object of the proceeding is not to obtain a new judgment for a debt, but to enable the judgment creditor to enforce by execution the judgment he has already obtained.... The order to revive does no more than reinvest the plaintiff with the right to have execution of his original judgment. His cause of action against the defendant is the original judgment, not the order to revive. The [revival] order merely confers upon the plaintiff the statutory right to issue executions on the judgment after it had become dormant for that purpose. The common-law right to sue on the judgment is not enlarged or made to accrue anew by force of the order.... It is plain that a new lease of life is not given to that cause of action by merely affording to the plaintiff the opportunity of resorting to the cumulative and independent remedy for the enforcement of the judgment by means of executions upon it.’ ”

Allgood, 234 Ala. at 656, 176 So. at 365 (citations omitted) (emphasis added).

In accordance with those authorities, the trial court in this case concluded that “[a]s of twenty years from the judgment’s entry, with or without revival, no execution may issue on a judgment, as the judgment is conclusively presumed satisfied.” Given that sound construction of our statutes and existing precedent dictate that a revival of a judgment does nothing more than give a party the right to execute on the original judgment and that actions on an original judgment must be commenced within 20 years of the judgment’s entry, it is apparent that the revival of the 1981 judgment obtained by McLendon in this case did not serve to extend or begin anew the limitations period prescribed in § 6-2-32. Accordingly, the writs of garnishment obtained after April 22, 2001, were properly quashed and the original judgment was correctly deemed unenforceable. We find no error by the trial court and, therefore, affirm its judgment.

AFFIRMED.

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

      . That the trial court did treat Hepburn's motion as a Rule 60(b)(5) motion arguably is reinforced by the fact that the trial court revised its March 28, 2002, order on May 13, 2002, to include a Rule 54(b), Ala. R. Civ. P., certification that the order was a final one. The trial court may have believed it was necessary to do this based on the general rule as to the finality of orders granting Rule 60(b) relief:
      "Generally, an order granting a Rule 60(b) motion for relief from a judgment is not appealable. R.E. Grills, Inc. v. Davison, 641 So.2d 225, 227 (Ala.1994). Such an order is interlocutory because further proceedings are contemplated in the trial court. Davison, 641 So.2d at 227-28. Typically, an appeal to this court lies only from a final judgment."

        Roark v. Bell, 716 So.2d 1245, 1247 (Ala.Civ.App.1998).

      . It is not necessary that we address the merits of the two grounds asserted by Hepburn in his October 5, 2001, motion. The trial court denied that motion, and the merits- of that denial are not at issue in this appeal.

      . A quotation in Black’s Law Dictionary from Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3 (2d ed. 1899), demonstrates that McLendon's argument incorporates an antiquated view of the term “action”:
      " 'The terms "action” and "suit” are nearly if not quite synonymous. But lawyers usually speak of proceedings in courts of law as "actions,” and of those in courts of equity as "suits.” In olden time there was a more marked distinction, for an action was considered as terminating when judgment was rendered, the execution forming no part of it. A suit, on the other hand, included the execution. The word "suit,” as used in the Judiciary Act of 1784 and later Federal statutes, applies to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy which the law affords him.' ”

        Black’s Law Dictionary 29 (7th ed.1999).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert C. GILL v. Bob BURRELL et al.
    2011112.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.
    Robert C. Gill, pro se.
    William H. Pryor, Jr., atty. gen., and Ellen Leonard, asst. atty. gen., for appel-lee Robert Burrell.
    Kelly Cain Bachuss, asst, city atty., City of Decatur, for appellees Keith Brown and Steven Campbell.
   PER CURIAM.

On May 3, 2002, Robert C. Gill filed a complaint in the Morgan County Circuit Court against District Attorney Bob Bur-rell, Police Officer Keith Brown, and Police Officer Steven Campbell, seeking the return of $2,700, plus interest, which he alleged had been taken from him during his arrests on August 1, 1990, and February 4, 1991. The defendants moved to dismiss the complaint. On July 2, 2002, the circuit court entered an order dismissing the complaint on the ground that the action was barred by the statute of limitations.

Gill appealed to this court, which transferred the appeal to the Court of Criminal Appeals. The Court of Criminal Appeals determined that it lacked jurisdiction over the case and purported to transfer the case to the Supreme Court for a determination of which appellate court has jurisdiction. On August 29, 2003, our Supreme Court held that the Court of Civil Appeals has appellate jurisdiction over Gill’s appeal, because, it determined, Gill’s action is a civil action to recover moneys, or compensation for moneys, that allegedly were taken during two arrests and that were never entered into evidence in any criminal proceeding because Gill had pleaded guilty to the charges. Gill v. Burrell, 874 So.2d 1072 (Ala.2003). The Supreme Court further held that the Court of Criminal Appeals did not have the authority to transfer the appeal to it; therefore, the Supreme Court returned the briefs and the record on appeal to the Court of Criminal Appeals. The Supreme Court also indicated that this court, after the appeal was transferred back from the Court of Criminal Appeals, “may want first to determine whether the amount in controversy met the minimum threshold for the subject matter jurisdiction of the circuit court.” 874 So.2d at 1075. On September 16, 2003, the Court of Criminal Appeals transferred the appeal back to this court.

Section 12-11-30, Ala.Code 1975, provides that the circuit court shall have jurisdiction in civil matters where the amount in controversy exceeds $10,000, exclusive of interests and costs, and that the circuit court has concurrent jurisdiction with the district court where the amount in controversy is between $3,000 and $10,000, exclusive of interests and costs. The amount in controversy in the present case is $2,700, exclusive of interests and costs; therefore, it is within the exclusive original jurisdiction of the district court. Section 12-11-9 provides: “If a case filed in the circuit court is within the exclusive jurisdiction of a district court ..., the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court....” Therefore, the circuit court was limited to transferring the case to the district court, and it lacked the authority to dismiss the complaint. “Lack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu.” Ex parte Smith, 438 So.2d 766, 768 (Ala.1983). Accordingly, we reverse the judgment of the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

All the Judges concur.


author: PITTMAN, Judge.

text:
    Mark A. THOMAS v. Regina VANHORN.
    2020461 and 2020661.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.

      Kenneth J. Lay of Legal Services of Metro Birmingham, Inc., Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

These consolidated appeals arise from two judgments entered by the Jefferson Circuit Court dismissing two related appeals from the Jefferson Family Court.

In August 2000, the State of Alabama, on behalf of Regina Vanhorn (“the mother”), filed a complaint in the family court seeking an adjudication of paternity as to her three children. In April 2001, the family court entered a default judgment against Mark A. Thomas (“the father”), declaring him to be the father of the mother’s three children and ordering him to pay monthly child support in the amount of $411 beginning in May 2001. At the same time, the family court ordered the father to begin paying $50 per month toward $3,700 in retroactive child support the family court had awarded. The father did not appeal from that judgment.

In October 2001, the State of Alabama, again on behalf of the mother, filed a petition requesting that the family court find the father in contempt for allegedly failing to pay the court-ordered child support; that case was assigned case no. CS-2000-1475.01. On November 29, 2001, the family court held a hearing on the matter and entered a judgment finding that the father’s child-support payments were $6,023.78 in arrears; that judgment also awarded interest in the amount of $276.54 on that arrearage. The family court also found the father to be in contempt and ordered him “committed to the county jail until further order.” The father did not appeal from that judgment. The family court held compliance review hearings in December 2001, February 2002, March 2002, and April 2002. During the time the father was incarcerated, he lost his job. At the April 2002 hearing, the family court released the father from jail, but it ordered him to obtain employment and to pay $300 within 14 days.

In May 2002, the father filed a pro se petition to modify his child-support obligation; in that petition, he sought to reduce the amount of his monthly child-support payments (CS-2000-1475.02). At a hearing in May 2002, the family court did not address the father’s petition to modify but instead ordered the father to increase to $100 the amount of his monthly payments toward his accrued arrearage. The family court scheduled a compliance hearing for June 28, 2002. The family court later continued that hearing until August in order to hear all pending motions and petitions. The father failed to appear at the August 2002 hearing; the family court then issued an arrest warrant and set a cash bond in the amount of $10,794 over the objection of the father’s attorney. The father was located and incarcerated again on September 3, 2002.

The family court heard all pending motions and petitions at a hearing held on October 23, 2002. The father was transported from jail to attend that hearing, during which he submitted a Form CS-41 child-support affidavit (see Rule 32, Ala. R. Jud. Admin.) to the family court; in the child-support affidavit he indicated that he had no income and no assets. That same day the family court denied the father’s petition to modify his child-support obligation and ordered him to remain in jail because he had not submitted a “purge plan” and had failed to appear at the August 2002 hearing. The father filed a notice of appeal to the Jefferson Circuit Court from the family court’s October 23 judgment on October 25, 2002; that appeal was docketed in the circuit court as case no. DR-02-3114. In November 2002, the father filed in the circuit court a motion for immediate release and a petition for a writ of mandamus. The circuit court conducted a hearing on the father’s appeal, motion for release, and mandamus petition on November 22 and 27, 2002. On December 2, 2002, the circuit court entered a judgment purporting to transfer the action back to the family court, stating in its order that it did not have jurisdiction over the action because the family court had not entered a final judgment. The father filed a motion to alter, amend, or vacate the circuit court’s judgment, but that motion was denied on January 21, 2003; he appealed to this court on February 24, 2003.

On February 12, 2003, during the period in which the circuit court’s judgment “transferring” the appeal from the October 23 judgment of the family court could be appealed to this court, the family court held a hearing over the objection of the father’s attorney regarding the father’s child-support arrearage. At that hearing, the family court noted that the father had failed to appear, found him in continuing contempt of court, and issued a new arrest warrant for the father, setting the cash bond amount at $13,887. The father filed a second notice of appeal to the circuit court, challenging the family court’s order of February 12, 2003, on the grounds that that order was void for lack of jurisdiction; that appeal was assigned ease no. DR-03-563. The circuit court dismissed that appeal on March 3, 2002. Two weeks later, on March 17, 2003, the circuit court set aside its March 3, 2003, judgment of dismissal in case no. DR-03-563 and entered a new judgment of dismissal in that case, stating that the identical cause of action existed in case no. DR-02-3114; however, by the time the circuit court entered its March 17, 2003, dismissal order, case no. DR-02-3114 had already been appealed to this court.

On April 2, 2003, the father filed a motion to alter, amend, or vacate in the circuit court’s judgment of dismissal in case no. DR-03-563; that motion was denied on April 15, 2003. The father then filed a second notice of appeal to this court; this court consolidated the father’s two appeals on May 2, 2003.

Rule 28, Ala. R. Juv. P., governs appeals from final judgments of juvenile courts. This court may exercise direct appellate jurisdiction over a juvenile-court judgment in only two circumstances: (1) when “[a] record certified as adequate by the juvenile court judge or a stipulation of facts is available and the right to a jury trial has been exercised or waived by all parties entitled thereto,” Rule 28(A)(1)(a), Ala. R. Juv. P., and (2) when “[t]he parties stipulate that only questions of law are involved and the juvenile court certifies the questions,” Rule 28(A)(1)(b), Ala. R. Juv. P. Appeals from final juvenile-court judgments in all other cases, including those cases where there is not an adequate record under Rule 28(A)(1)(a) “shall be to the circuit court for trial de novo.” Rule 28(B), Ala. R. Juv. P. See generally State ex rel. Provitt v. Coleman, 821 So.2d 1015 (Ala.Civ.App.2001); R.L.B. v. Morgan County Dep’t of Human Res., 805 So.2d 721 (Ala.Civ.App.2001).

The law is well settled that “ ‘[a]n appeal will not lie from an order or judgment which is nonfinal.’ ” K.L.U. v. M.C., 809 So.2d 837, 840 (Ala.Civ.App.2001) (quoting Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978)). Child-support judgments are never absolutely “final” in the strictest sense, because such judgments are always subject to modification in the future upon a showing of a material change in circumstances. See, e.g., K.L.U. v. M.C., supra. After thoroughly reviewing the record, we conclude that the family court’s October 23, 2002, judgment that denied the father’s petition to modify child support and ordered him to remain incarcerated was a final judgment and that that judgment was appealable, pursuant to Rule 28(B), Ala. R. Juv. P., to the circuit court for a trial de novo. Thus, the circuit court erred in refusing to review the family court’s October 23, 2002, judgment, on the stated basis that the father’s appeal was from a nonfi-nal order and in purporting to transfer the appeal back to family court. See Ex parte State, 700 So.2d 1369 (Ala.1997).

Having concluded that the father’s appeal to the circuit court from the family court’s October 23, 2002, judgment was properly taken, we now review the family court’s February 12, 2003, judgment. That judgment, apparently holding the father in contempt for failing to appear in court for a compliance review and ordering the father’s arrest, is also a final judgment from which the father could properly appeal. See Rule 70A(g), Ala. R. Civ. P. Although the father argues that the family court’s February 12, 2003, judgment is void because it was entered after the family court’s judgment denying his petition to modify his child-support obligation, that second family-court judgment was a separate appealable judgment enforcing the family court’s earlier unappealed support judgments. The second appeal thus arises from related but not identical facts, and the circuit court incorrectly dismissed the father’s second appeal as being “the identical cause of action previously existing as [case no.] DR-02-3114.” Based on our review of the record, we conclude that the circuit court erred in failing to exercise jurisdiction over case no. DR-03-563.

Because the circuit court erred in failing to exercise its appellate jurisdiction in both of the father’s appeals, we reverse the circuit court’s judgments in both case no. DR-02-3114 and case no. DR-03-563 without reaching the substantive merits of the family-court judgments from which the father has sought de novo review in the circuit court. We remand the causes to the circuit court for de novo proceedings. See Rule 28, Ala. R. Juv. P. On remand, the circuit court should determine whether the father’s failure to appeal from the family court’s 2001 judgments precludes him from challenging all or part of the family court’s October 23, 2002, and February 12, 2003, judgments.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

CRAWLEY, J., concurs in the result.

      . In Jefferson County, the Jefferson Family Court exercises jurisdiction over juvenile-court actions, including paternity actions. See Gardner v. Buycks, 479 So.2d 59 (Ala.Civ.App.1985).

      . We note that throughout these proceedings the father has been incarcerated for intermittent periods of time. Rule 70A, Ala. R. Civ. P., which applies to juvenile-court judgments pursuant to Rule 1, Ala. R. Juv. P., specifically allows for an appeal to be taken from an adjudication of contempt regardless of whether the person is incarcerated. See Rule 70A(g), Ala. R. Civ. P.


author: SHAW, Judge.

text:
    David F. STRAUGHN v. STATE of Alabama.
    CR-01-1378.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Benton H. Persons, Andalusia, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin and J. Thomas Leverette, asst, attys. gen., for appellee.
   On Return to Remand and on Application for Rehearing

SHAW, Judge.

The State’s application for rehearing on intervening remand is granted. See Bishop v. State, 608 So.2d 345 (Ala.1992). This Court’s opinion of February 28, 2003, is withdrawn and the following opinion is substituted therefor.

David F. Straughn was convicted of two counts of unlawful possession of marijuana in the first degree, violations of § 13A-12-213(a)(2), Ala.Code 1975, and of one count of unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala.Code 1975. He was sentenced to eight years’ imprisonment for each of the possession-of-marijuana convictions and to one year’s imprisonment for the possession-of-drug-paraphernalia conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated the- following. In April 2000, a member of a hunting club contacted Mark Odom and Jody Scott, who were, at that time, members of the Red Level Police Department, and informed them that he had discovered marijuana plants growing in the woods where he hunted. Investigator Odom went to the area identified by the informant and located a patch of approximately 18 marijuana plants. The plants were in the woods, at the end of a dead-end road. Investigator Odom then decided to set up a video surveillance of the site. Because the Red Level Police Department did not have the equipment necessary to conduct the video surveillance, Investigator Odom contacted the Andalusia Police Department and asked for assistance.

On April 18, 2000, Mike Bowlan, at that time a detective with the Andalusia Police Department, brought two motion-activated video cameras to the area and set them up; one camera was placed near the road leading to the woods where the marijuana plants were located, and the other camera was placed inside the patch of marijuana plants. Two days later, on April 20, 2000, the officers checked the cameras to see if any activity had been recorded. The roadside camera had recorded two white males in a blue Chevrolet pickup truck driving down the road on April 20, 2000, but the camera in the patch had not recorded anything. On May 3, 2000, the officers again checked the cameras. This time, the roadside camera had recorded the same blue Chevrolet pickup truck driving down the road and parking near the woods, and it recorded a man with long hair getting out of the truck and then walking into the woods; several minutes later, the camera recorded the same man walking back to the truck and removing a “turkey hunter’s mask” from his head. The camera in the patch had recorded a man wearing a turkey hunter’s mask and tall snakeskin boots watering or otherwise tending the marijuana plants. The camera in the patch indicated that the man was tending the marijuana plants at the same time that the road-side camera recorded the same man near the truck. Officer Scott testified that when he viewed the videotape of the activity and saw the man removing the turkey hunter’s mask from his head, he recognized the man in the video as Straughn, whom he knew personally, and that he recognized the truck in the video as Straughn’s because he had previously seen Straughn driving the truck and had seen it parked at Straughn’s residence.

On May 4, 2000, Investigator Odom obtained a search warrant for Straughn’s residence and property. That same day, he and other officers executed the warrant; they searched Straughn’s mobile home, a blue Chevrolet pickup truck belonging to Straughn’s wife, Betty, parked outside the home, a greenhouse in the backyard, and the property surrounding the mobile home. Straughn, his wife, and his stepson were present at the time of the search. During the search, the officers discovered, among other things, a wooden smoking device, a Coca-Cola soft-drink can fashioned into a smoking device, numerous firearms, two turkey hunter’s masks, a five-gallon bucket similar to the bucket used by the man who had been videotaped tending the marijuana plants in the woods, rolling papers, several containers of Miracle-Gro brand plant food and other chemicals used to enhance plant growth, and several small marijuana plants and seedlings. When the officers executed the search, Straughn was wearing snakeskin boots identical to those the man who had been videotaped at the patch had been wearing; the officers also discovered a hemostat, a device often used to hold a marijuana cigarette, in the front pocket of Straughn’s overalls.

Straughn was indicted for two counts of possession of marijuana in the first degree — one count was based on the marijuana patch found in the woods and one count was based on the numerous marijuana plants and seedlings found on his property during the search. He was also indicted for possession of drug paraphernalia based on the various smoking devices found in his mobile home, the hemostat found in his pocket, and the various plant chemicals found on his property. The jury found him guilty on all three counts.

I.

Straughn first contends that the trial court erred in denying his motion to suppress the items seized as a result of the search of his residence and property because, he claims, the affidavit submitted in support of the search warrant contained a false statement and was insufficient to establish a nexus between the marijuana plants in the woods and the items sought to be seized at his residence.

The affidavit submitted by Investigator Odom in support of the search warrant states, in pertinent part:

“My name is Mark Odom and I am an Investigator with the Red Level, Alabama Police Department. During the course of my duties as such, I had a patch of growing marijuana that had been discovered, under surveillance with two video cameras. While videoing this patch, the camera recording the patch recorded a white male, wearing a turkey hunters mask, enter the patch of growing marijuana; and begin to tend the crop of marijuana. I videotaped this event and had another video camera set up along the road where the man’s pickup had been parked, and when he returned to his vehicle, it was able to record him removing his mask and I was able to identify the man as David F. Straughn. I observed from the tapes that the truck that he was traveling on was a Chevrolet pickup truck made between 1980 and 1982 and was dark blue in color with white spoke wheels and the hood of the truck was lighter colored than the body of the truck. Myself and other police officers began a surveillance of the aforedescribed residence of David F. Straughn and have observed this same pickup truck parked at that residence.
“Therefore I have reason to believe and do believe that the aforenamed David F. Straughn is concealing in the aforedescribed residence, out-buildings, and vehicle; marijuana and/or the evidence of and/or the implements, tools, and other objects of paraphernalia used in the cultivation of marijuana, which is in violation of the Drug Crimes Amendment Act of 1987.”

(C. 113b — 113c.)

As for Straughn’s contention that the items seized as a result of the warrant should have been suppressed because of an allegedly false statement contained in the affidavit, Investigator Odom did testify at the suppression hearing that he had “never been” to Straughn’s residence “prior to ... getting the search warrant.” (R. 31.) However, Straughn never argued to the trial court that there was a false statement in the affidavit that somehow invalidated the affidavit and rendered the search illegal, see Ex parte Parker, 858 So.2d 941 (Ala.2003); his only argument to the trial court regarding the sufficiency of the affidavit in support of the search warrant was that it did not establish a sufficient nexus between the marijuana patch and his residence. Therefore, this argument is not properly before this Court for review. See, e.g., C.D.C. v. State, 821 So.2d 1021 (Ala.Crim.App.2001), and Pace v. State, 766 So.2d 201 (Ala.Crim.App.1999).

Moreover, even if this argument were preserved for appellate review, we find no merit to it. As noted above, Investigator Odom testified at the suppression hearing that “prior to getting the search warrant” he “had never been to the defendant’s home.” (R. 31.) However, he stated in the affidavit that “[m]yself and other police officers began a surveillance of the aforedescribed residence of David F. Straughn and have observed this same pickup truck parked at that residence.” (C. 26.) Although Investigator Odom’s two statements appear, on their face, to be contradictory, the language Investigator Odom used does not preclude the possibility that both statements are true. The surveillance to which Investigator Odom referred in his affidavit could have been conducted by other officers, with Investigator Odom acting only in a supervisory capacity and not present during the surveillance. Indeed, nothing in the record, including Investigator Odom’s testimony, indicates that no surveillance of Straughn’s residence was conducted by any police officer. Investigator Odom’s testimony indicates only that he, personally, had never been to Straughn’s residence before he obtained the search warrant; that testimony indicates only that Investigator Odom did not personally conduct the surveillance to. which he referred in his affidavit. Thus, Investigator Odom’s testimony at the suppression hearing that he had never been to Straughn’s residence before he obtained the warrant and his statement in the affidavit that he “and other officers began” surveillance of Straughn’s residence before he obtained the warrant are not necessarily inconsistent. Although the affidavit could have been better worded, based on the record before us, we are not persuaded by Straughn’s argument that the information in the affidavit was, in fact, false.

As for Straughn’s contention that there was not a sufficient nexus between the marijuana patch in the woods and his residence to justify the search of his home, we are inclined to agree. Straughn cites Ex parte Perry, 814 So.2d 840 (Ala.2001), to support his contention. In Ex parte Perry, the affidavit submitted in support of the search warrant stated that the requesting officer had made three controlled purchases of cocaine from Perry and that, in each instance, Perry delivered the cocaine “ ‘to a neutral location not his residence.’ ” 814 So.2d at 841. The affidavit also stated: “ ‘[The requesting officer] knows from his experience and training that persons engaged in the sale of illegal drugs will often make the buyers meet them at a neutral location in order to divert suspicious [sic] from their residence and/or “stash house,” where they store the illegal drug.’ ” Id. The Alabama Supreme Court held that the trial court had erred in denying Perry’s motion to suppress because, the Court stated, “the affidavit alone was insufficient to support a valid warrant, and there is no indication in the record that the district court was privy to any additional information before issuing the warrant.” Ex parte Perry, 814 So.2d at 843. In a special concurrence, Justice Harwood noted that “[n]othing in the affidavit serves to discriminate between the possibility that Perry was retrieving drugs from a ‘stash house’ and the possibility that he was retrieving them from his residence.” Ex parte Perry, 814 So.2d at 844 (Harwood, J., concurring specially).

Here, as in Ex parte Perry, the mere fact that officers observed Straughn tending the marijuana patch on a neutral site, i.e., one that was not a part of his residence, was simply insufficient to establish a nexus to search Straughn’s residence. Nothing in the affidavit indicated that drugs or paraphernalia were being kept at Straughn’s residence as opposed to some other location, and there is no indication in the record that the magistrate who issued the warrant was presented with any information or evidence other than the affidavit. “[A] defendant’s possession of illegal drugs does not, without more, make reasonable a search of the defendant’s residence.” Ex parte Perry, 814 So.2d at 843. Compare Gord v. State, 475 So.2d 900 (Ala.Crim.App.1985)(a sufficient nexus was established where the affidavit stated that on two occasions officers observed the appellant leave his residence and that, before the appellant made any stops, he was detained and found to be in possession of controlled substances). Therefore, we hold that, under the facts of this case, as in Ex parte Perry, the affidavit was insufficient to support a valid warrant.

However, our holding that the warrant was invalid is not the end of our analysis. The State argues that, even if there was no showing of probable cause to obtain the warrant, the evidence seized in this case was properly admitted under the good-faith exception to the exclusionary rule. We agree. “The good faith exception provides that when officers acting in good faith, that is, in objectively reasonable reliance on a warrant issued by a neutral, detached magistrate, conduct a search and the warrant is found to be invalid, the evidence need not be excluded.” Rivers v. State, 695 So.2d 260, 262 (Ala.Crim.App.1997).

“In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ‘[O]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law.’ [Stone v. Powell], 428 U.S. [465,] at 498 [(1976)] (Burger, C.J., concurring).”

United States v. Leon, 468 U.S. 897, 921, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

In Leon, the United States Supreme Court recognized four circumstances in which the good-faith exception was inapplicable: (1) when the magistrate or judge relies on information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) when the magistrate wholly abandons his judicial role and fails to act in a neutral and detached manner; (3) when the warrant is based on an affidavit so lacking an indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when the warrant is so facially deficient that the executing officer cannot reasonably presume it to be valid.

In this case, none of those circumstances were present to negate the good-faith exception. As noted above, based on the record before us, we cannot say that the affidavit in support of the warrant contained false information, and nothing in the record indicates that the issuing magistrate failed to act in a neutral and detached manner. Finally, we cannot say that the warrant was so facially deficient or lacking an indicia of probable cause as to make it unreasonable for Investigator Odom to believe it was valid. In this case, Investigator Odom obtained the warrant to search Straughn’s residence on May 4, 2000, almost a year before the Alabama Supreme Court decided Ex parte Perry. If Investigator Odom had submitted the affidavit after the Alabama Supreme Court had decided Ex parte Perry, the State’s “good-faith” argument would have failed. See generally Ex parte Lemus, 802 So.2d 1073 (Ala.2001)(anticipatory warrants were not authorized by law at the time that the warrant was issued and executed, and, therefore, the evidence seized was inadmissible); and Ex parte Turner, 792 So.2d 1141 (Ala.2000). However, based on Gord v. State, 475 So.2d 900 (Ala.Crim.App.1985), the law in effect at the time Investigator Odom obtained the search warrant, it was reasonable for the issuing magistrate to determine that Investigator Odom’s affidavit provided a sufficient nexus to search Straughn’s residence, and it was, therefore, reasonable for Investigator Odom to believe that the warrant was valid. We recognize that there was a break in the surveillance between the time Straughn and the truck were recorded on the videotape and the time the truck was observed at Straughn’s residence. While it is true that one might hide their drugs at a “stash house,” it is less likely that someone who is growing marijuana would take the time to maintain a separate storage location for their plastic buckets and Miracle-Gro brand plant food. Because the warrant included the tools used to cultivate the marijuana, common sense and reason, coupled with the controlling case-law at the time the affidavit was presented to the magistrate, reasonably lead to the conclusion that those tools would not be kept at a “stash house” but, rather, would likely be found at the defendant’s residence.

Because the good-faith exception applies in this ease, the evidence seized was properly admitted, despite the fact that the affidavit supporting the search warrant was deficient. The trial court properly denied Straughn’s motion to suppress.

II.

Straughn also contends that the trial court erred in admitting into evidence the police surveillance videotape of the marijuana patch and of the road leading to the marijuana patch because, he says, the State failed to lay a proper predicate for the admission of the tape. Specifically, he argues that the State failed to meet the seven-prong standard for admission required by Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.1980). The State argues that Straughn failed to preserve this claim for our review.

After opening statements, outside the hearing of the jury, the trial court stated that it understood that there was “going to be some argument about the admissibility of the tape.” (R. 72.) Straughn’s trial counsel answered affirmatively and requested that the admissibility of the videotape be argued outside of the presence of the jury. The trial court then held a hearing outside the presence of the juiy, during which the State called Commander Bowlan to testify regarding the videotape. Commander Bowlan testified about his experience and training in operating the equipment that he had used and about certain details concerning the equipment. He stated that, to the best of his knowledge, the equipment had operated properly; that the cameras had recorded on eight-millimeter tapes, which had been copied onto one videotape; and that Officer Scott had identified the appellant as the person on the tape. Commander Bow-lan acknowledged that he had not synchronized the clocks on the two cameras when he set them up. .During Commander Bow-lan’s testimony, the trial court instructed Commander Bowlan to view the videotape that the State was seeking to introduce into evidence to ascertain whether it was a true and accurate copy of the original eight-millimeter tapes. When Commander Bowlan finished viewing the videotape, he testified that it was a true and accurate copy of the eight-millimeter tapes that had recorded the marijuana patch and the road leading to the marijuana patch, and that the fact that the timers were not synchronized did not affect the reliability or accuracy of the equipment.

After Commander Bowlan’s testimony, Straughn’s trial counsel objected to the introduction of the videotape on the grounds that the State had failed to lay the proper predicate under Voudrie, supra, and that the original eight-millimeter tapes had not been produced diming discovery. In response, the prosecutor argued that he had laid the proper predicate for admission of the videotape and that he had notified Straughn’s counsel over a year before trial of the existence of the eight-millimeter tapes and had made those tapes available to Straughn’s counsel, but that Straughn’s counsel had never requested to see the tapes. At the conclusion of the hearing, the trial court ruled that the videotape was admissible.

Initially, we note that the State argues on appeal that Straughn failed to preserve this issue for review because, it says, he did not raise this issue in the trial court by objecting when the State introduced the videotape into evidence. However, as can be seen from the aforementioned exchange that occurred just after opening statements outside of the presence of the jury, Straughn clearly preserved this argument for our review. Although the State is correct that Straughn did not object when the State introduced the videotape into evidence or when the videotape was played for the jury, he did object before the State ever attempted to introduce the videotape into evidence, and the trial court heard arguments and testimony on the issue during a hearing outside the presence of the jury. The trial court ruled that the videotape was admissible, and that ruling was clearly a final ruling on the admissibility of the videotape. Contrary to the State’s argument, Straughn did challenge the admissibility of the videotape at trial; his objection was timely (before the videotape was even offered by the State); and he received an adverse ruling. Therefore, this issue is properly before this Court for review.

“Generally, videotapes are governed by the same rules of evidence as still photographs, and their admissibility is a matter addressed to the sound discretion of the trial court.” Ivery v. State, 686 So.2d 495, 517-18 (Ala.Crim.App.1996). There are two different theories that are used to determine the admissibility of videotapes — the “silent-witness” theory and the “pictorial-communication” theory. Since none of the officers were present at the site while the cameras recorded Straughn’s activities in the patch and on the road leading to the patch, the “silent-witness” theory is appropriate. “Under the ‘silent witness’ theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability.” Ex parte Fuller, 620 So.2d 675, 678 (Ala.1993).

In Ex parte Rieber, 663 So.2d 999 (Ala.1995), the Alabama Supreme Court stated:

“ ‘The “silent witness” theory is that a photograph, etc., is admissible, even in the absence of an observing or sensing witness, because the process or mechanism by which the photograph, etc., is made ensures reliability and trustworthiness. In essence, the process or mechanism substitutes for the witness’s senses, and because the process or mechanism is explained before the photograph, etc., is admitted, the trust placed in its truthfulness comes from the proposition that, had a witness been there, the witness would have sensed what the photograph, etc., records. Wigmore [on Evidence], ... § 790 [(1970 & Supp.1991)], and [2 John W. Strong,] McCormick [on Evidence], ... § 214 [(1992)].
“ ‘A reasonable reading of [Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.1980), cert. denied, 387 So.2d 256 (Ala.1980); Carraway v. State, 583 So.2d 993 (Ala.Crim.App.1991), cert. denied, 533 So.2d 997 (Ala.1991); Molina v. State, 533 So.2d 701 (Ala.Crim.App.1988), cert. denied, 489 U.S. 1086, 109 S.Ct. 1547, 103 L.Ed.2d 851 (1989),] and the more recent caselaw of the Court of Criminal Appeals leads us to conclude that the Court of Criminal Appeals is of the opinion that the “pictorial communication” and “silent witness” theories are mutually exclusive theories, rather than alternative theories. The proper foundation required for admission into evidence of a sound recording or other medium by which a scene or event is recorded (e.g., a photograph, motion picture, videotape, etc.) depends upon the particular circumstances. If there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question, then the “silent witness” foundation must be laid. Under the “silent witness” theory, a witness must explain how the process or mechanism that created the item works and how the process or mechanism ensures reliability. When the “silent witness” theory is used, the party seeking to have the sound recording or other medium admitted into evidence must meet the seven-prong Voudrie test. Rewritten to have more general application, the Voudrie standard requires:
“ ‘(1) a showing that the device or process or mechanism that produced the item being offered as evidence was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded,
“ ‘(2) a showing that the operator of the device or process or mechanism was competent,
“ ‘(3) establishment of the authenticity and correctness of the resulting recording, photograph, videotape, etc.[,]
“ ‘(4) a showing that no changes, additions, or deletions have been made[,]
“ ‘(5) a showing of the manner in which the recording, photograph, videotape, etc., was preserved[,]
“ ‘(6) identification of the speakers, or persons pictured, and
“ ‘(7) for criminal cases only, a showing that any statement made in the recording, tape, etc., was voluntarily made without any kind of coercion or improper inducement.’ ”

663 So.2d at 1008-09, quoting Ex parte Fuller, 620 So.2d at 678.

Commander Bowlan testified about the placement of the cameras, and about his training and experience with video cameras. He stated that the videotape was a true and accurate copy of the eight-millimeter tapes that had recorded the marijuana patch and the road leading to the patch; that the cameras had been operating properly; and that the fact that the timers had not been synchronized did not affect the reliability or accuracy of the equipment. Additionally, Officer Scott testified that he was able to identify Straughn from the videotape and that he recognized the truck shown on the videotape to be Straughn’s. This testimony was sufficient to meet the requirements of the “silent-witness” theory. Therefore, the trial court did not err in admitting the videotape into evidence.

III.

Finally, Straughn contends that the trial court erroneously denied his motions for a judgment of acquittal as to the possession-of-marijuana convictions, made at the close of the State’s case-in-chief and at the close of all the evidence. He argues that the State failed to prove that he was in actual or constructive possession of the marijuana plants in the woods or of the marijuana plants found on his property because, he claims, the State failed to show that he had knowledge of any of the marijuana plants or that he had even been to the marijuana patch in the woods.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). “ ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445(5th Cir.1961).
“ '[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words,
the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.” Williamson v. United States, 5th Cir., 1966, 865 F.2d 12, 14. (Emphasis supplied).
“‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.’ McGlamory, 441 F.2d at 135 and 136.”

Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978).

“Possession, whether actual or constructive, has the following three attributes: (1) ‘[Ajctual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.’ ” Wallace v. State, 690 So.2d 534, 536 (Ala.Crim.App.1996), quoting Radke v. State, 52 Ala.App. 397, 398, 293 So.2d 312, 313 (1973), aff'd, 292 Ala. 290, 293 So.2d 314 (1974).

“ ‘When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances. Campbell v. State, [439 So.2d 718 (Ala. Cr.App.), rev’d on other grounds, 439 So.2d 723 (Ala.1983) ]; Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.), cert. denied, 405 So.2d 725 (Ala.1981). This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). When the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986); Temple v. State, [366 So.2d at 743]. While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984); Temple v. State.’
“Robinette v. State, 531 So.2d 682, 686 (Ala.Cr.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988).
“In Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978), this court provided a non-exclusive list of circumstances that may establish a connection between a defendant and the contraband found on the defendant’s property when the defendant is not in exclusive possession of the premises.
“ While the kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case, 56 A.L.R.3d 948 (1974), it has generally been stated that:
“ ‘ “The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that an illicit drug will be found; (5) evidence that debris of the contraband was found on the defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.
“ ‘ “The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection are: (1) admissions of previous use; (2) conduct that might be construed as evidencing a consciousness of guilt which was not displayed upon the defendant’s confrontation of the possibility that an illicit drug would be discovered; (3) evidence of previous use; (4) evidence that showed the defendant’s physical proximity to the contraband.”
“ ‘9 Land and Water L.Rev. 236, 248-49 (1974).’
366 So.2d at 743.”

Posey v. State, 736 So.2d 656, 658-59 (Ala.Crim.App.1997).

In this case, there was sufficient evidence establishing that Straughn was in actual or constructive possession of both the marijuana plants in the woods and the marijuana plants and seedlings on his property. The evidence tended to show that in April 2000 Investigator Odom and Officer Scott received information that someone was growing marijuana on nearby hunting land. The police set up a video surveillance of the area, and Straughn’s truck was twice recorded going down the dead-end road toward the marijuana patch — on one of those occasions, a man wearing a turkey hunter’s mask was recorded tending the marijuana plants in the woods, and, thereafter, a man wearing similar clothing was recorded next to a truck identified as Straughn’s removing the turkey hunter’s mask; Officer Scott positively identified that man as Straughn. This evidence was sufficient to establish that Straughn was in actual possession of the marijuana found at the patch in the woods. In addition, Straughn’s actual possession of the marijuana found at the patch in the woods, coupled with the drug paraphernalia found during the search of his residence, was sufficient to establish that Straughn had knowledge of the marijuana plants and seedlings on his own property.

Therefore, the trial court did not err in denying Straughn’s motions for a judgment of acquittal.

TV.

In the February 28, 2003, opinion that we today withdraw, this Court remanded this case for the trial court to vacate Straughn’s conviction and sentence on the second count of possession of marijuana in the first degree. Citing Townsend v. State, 823 So.2d 717 (Ala.Crim.App.2001); Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999); and dicta in Girard v. State, [Ms. CR-01-0403, November 22, 2002] — So.2d - (Ala.Crim.App.2002), we held:

“Because the marijuana found on Straughn’s property and the marijuana found at the neutral site were part of a single growing operation, Straughn’s separate convictions for possession violated the principles of double jeopardy, and the trial court lacked jurisdiction to adjudge Straughn guilty of the second count of possession of marijuana in the first degree after he had already been adjudged guilty of the first count of possession of marijuana in the first degree, based on marijuana that was a part of the same operation. Therefore, this case must be remanded for the trial court to vacate Straughn’s conviction and sentence for the second count of possession of marijuana in the first degree.”

The trial court complied with our instructions and vacated Straughn’s conviction and sentence on the second count of possession of marijuana in the first degree.

Upon further review, however, we now conclude that our original holding with respect to the conviction and sentence on the second count was inconsistent with existing caselaw, as exemplified by our decision in Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989). In Girard, supra, we discussed Harris as follows:

“In Harris v. State, 563 So.2d 9 (Ala.Crim.App.1989), the defendant was indicted for four counts of possession of obscene material, violations of § 13A-12-192(B), Ala.Code 1975. Harris filed a ‘ “motion to dismiss the indictment as being multiplicitous, or in the alternative, motion to compel an election by the State as to the count it intends to prosecute.” ’ 563 So.2d at 9. The trial court denied the motion, and Harris subsequently pleaded guilty and received concurrent sentences of five years in prison. The Court of Criminal Appeals held that Harris had waived this argument by pleading guilty subsequent to the denial of his motion, but continued:
“ ‘Harris was charged in a four-count indictment with four separate violations of § 13A-12-192(b). Count one alleged the possession of a pornographic magazine. Counts two, three, and four each involved the possession of a different video cassette tape. Harris contends that he should have been convicted and sentenced for only one offense, because the magazine and cassette tapes were seized from his residence on the same occasion. We recognize that this argument may have considerable merit. See United States v. Meyer, 602 F.Supp. 1480, 1480-81 (S.D.Cal.1985)(the appropriate union of prosecution for offenses of transportation of material involving sexual exploitation of children and importation of obscene material, arising from defendant’s transporting several photographs in one binder, was one count for each offense, rather than one count for each photograph for each offense); Braunstein v. Frawley, 64 A.D.2d 772, 407 N.Y.S.2d 250, 253 (1978) (“[t]the promotion or possession of more than one item at the same time and on the same date constitutes one crime, and cannot be split into as many crimes as there are items”); State v. Smith, 323 N.C. 439, 373 S.E.2d 435, 438 (1988) (“[o]ther courts have similarly held that a single transaction involving obscene materials constitutes but one offense”). See also United States v. Kinsley, 518 F.2d 665 (8th Cir.1975) (possession of firearms); Vogel v. State, 426 So.2d 863, 878-82 (Ala.Cr.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983) (possession of drugs); Owens, Alabama’s Minority Status: A Single Criminal Act Injuring Multiple Persons Constitutes Only a Single Offense, 16 Cum. L.Rev. 85, 105-06 (1985) (discussed in McKinney v. State, 511 So.2d 220 (Ala.1987)). However, this issue has not been preserved for review.’
563 So.2d at 10.”

Girard, — So.2d at -. See also McNish v. State, 878 So.2d 1189 (Ala.Crim.App.2000), rev’d on other grounds, 878 So.2d 1199 (Ala.2003).

In the present case, Straughn did not argue in the trial court, and he does not argue on appeal, that his separate convictions for possession violated the principles of double jeopardy. This case is, therefore, controlled by Harris, and is distinguishable from Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995), and its progeny, which hold that certain double-jeopardy claims go to the jurisdiction of the trial court to render judgment or to impose a sentence. In Rolling, the appellant filed a Rule 32, Ala.R.Crim.P., petition for post-conviction relief, challenging his convictions for felony murder and for the lesser-included offense of reckless manslaughter for the killing of a single victim, and his resulting concurrent sentences of life imprisonment for the felony-murder conviction and 10 years’ imprisonment for the manslaughter conviction. The appellant claimed in his petition that his two convictions for a single killing violated his right to be free from double jeopardy. Although the appellant’s petition was filed long after the two-year limitations period in Rule 32.2(c) had expired, and although the appellant received concurrent sentences, the Rolling court held that the appellant’s double-jeopardy challenge to his convictions was jurisdictional and, therefore, not subject to the procedural bars in Rule 32.2. The Court held that the trial court lacked jurisdiction to adjudge the appellant guilty of manslaughter and remanded the case for further proceedings. The Court stated:

“Based on the above discussion, the trial court’s judgment finding Rolling guilty of both crimes was error. We hold that, particularly pursuant to § 13A — 1—8(b)(1), [Ala.Code 1975,] the court was without jurisdiction to adjudge Rolling guilty of manslaughter. Thus, this issue is exempted from the procedural bar presented by the expiration of the limitations period of Rule 32.”

673 So.2d at 815.

Since the decision in Rolling, this Court has continued to hold that certain double-jeopardy claims implicate the jurisdiction of the trial court and, therefore, are not subject to waiver. See, e.g., Powell v. State, 854 So.2d 1206 (Ala.Crim.App.2002); Deas v. State, 844 So.2d 1286 (Ala.Crim.App.2002); Hale v. State, 831 So.2d 639 (Ala.Crim.App.2001); Peterson v. State, 842 So.2d 734, 735 (Ala.Crim.App.2001) (opinion on return to remand); Grayson v. State, 824 So.2d 804 (Ala.Crim.App.1999), aff'd, 824 So.2d 844 (Ala.2001); Simmons v. State, 797 So.2d 1134 (Ala.Crim.App.1999); Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000); Lorance v. State, 770 So.2d 644 (Ala.Crim.App.1999); Borden v. State, 711 So.2d 498 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998); and Dozier v. State, 706 So.2d 1287 (Ala.Crim.App.1997). Like Rolling, most of those decisions involved simultaneous convictions for both a greater and a lesser-included offense.

However, caselaw from both this Court and the Alabama Supreme Court recognize that generally other double-jeopardy claims are singularly constitutional in nature and are, therefore, subject to waiver. See, e.g., Ex parte Ziglar, 669 So.2d 133 (Ala.1995); Baker v. State, 819 So.2d 87 (Ala.Crim.App.2001); McNish v. State, supra; Stanley v. State, 723 So.2d 821 (Ala.Crim.App.1998); Boyd v. State, 746 So.2d 364 (Ala.Crim.App.1999); Burton v. State, 728 So.2d 1142 (Ala.Crim.App.1997); State v. Richardson, 703 So.2d 421 (Ala.Crim.App.1997); J.N.J. v. State, 690 So.2d 519 (Ala.Crim.App.1996); McGaster v. State, 689 So.2d 1001 (Ala.Crim.App.1996); Owens v. State, 666 So.2d 32 (Ala.Crim.App.1994); Sturdivant v. State, 643 So.2d 1013 (Ala.Crim.App.1993); Powell v. State, 616 So.2d 370 (Ala.Crim.App.1992); Kuk v. State, 602 So.2d 1213 (Ala.Crim.App.1992); Kolmetz v. State, 600 So.2d 389 (Ala.Crim.App.1991); Connolly v. State, 602 So.2d 443 (Ala.Crim.App.1990), rev’d on other grounds, 602 So.2d 452 (Ala.1992); Bolden v. State, 568 So.2d 841 (Ala.Crim.App.1989).

As previously noted, the present case is materially indistinguishable from Harris, supra. Rolling is not implicated in this case. Furthermore, this case, like Harris, involves a multicount indictment alleging separate offenses. Unlike Lorance, supra, where the indictment on its face alleged in separate counts alternative methods of committing a single offense, the indictment here alleged separate offenses of possession of marijuana in the first degree. Although the evidence at trial established that the marijuana found on Straughn’s property and the marijuana found at the neutral site were part of a single growing operation and, thus, constituted a single act of possession under the rationale of Townsend, supra, Straughn did not argue that the evidence was insufficient to support separate convictions based on the jury’s findings of separate acts of possession. Stated differently, Straughn’s conviction under the second count is not supported by the evidence; however, other than as noted in part III of this opinion, the sufficiency of the evidence to support the conviction was never raised as an issue in the trial court. In Townsend, this Court stated:

“[W]e conclude that Townsend was properly prosecuted and convicted for the crime of trafficking in cocaine. The trial court properly denied Townsend’s motion for a judgment of acquittal. We also note, in conclusion, that the propriety of aggregating separate quantities of a controlled substance depends on the particular facts in question. Only an analysis of the facts will dictate whether a defendant’s possession was sufficiently differentiated by time or location as to constitute separate units for prosecution or whether it constitutes a single offense.”

823 So.2d at 724.

Based on the foregoing, we hold that Straughn’s conviction and sentence for possession of -drug paraphernalia and both of his convictions and sentences for possession of marijuana are due to be affirmed. This Court’s February 28, 2003, opinion directing the trial court to vacate the conviction and sentence on the second count was in error. Therefore, we remand this case to the trial court for it to reinstate the conviction and sentence on the second count of possession of marijuana in the first degree. Due return shall be filed with this Court no later than 35 days from the date of this opinion.

APPLICATION GRANTED; OPINION DATED FEBRUARY 28, 2003, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

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

      . Straughn also filed an application for rehearing challenging this Court’s affirmance of his conviction on the first count of possession. That application, which was prematurely filed, remains pending and may be amended within 14 days from the date of this Court's final decision, as specified in Rule 40, Ala.R.App.P.

      . Count I of the indictment against Straughn alleged, in pertinent part, that on May 3, 2000, Straughn "did unlawfully possess marijuana, a controlled substance, for other than personal use and/or for personal use only after having been previously convicted of unlawful possession of marijuana for his personal use only.” Count II of the indictment was identical to Count I, except that the offense was alleged to have occurred on May 4, 2000. The two counts tracked the language of § 13A — 12—213(a)(1) and (2), Ala.Code 1975. However, the record indicates that the trial court instructed the jury only as to the alleged violation of § 13A-12-213(a)(2), and, therefore, the jury was precluded from considering the State’s alternative theory under § 13A-12-213(a)(l):
      "Now, I will also tell you that with regard to the charge of possession of marijuana in the first degree that by statute this charge can be proved in two different ways. And in this case one defendant, defendant David Straughn, is charged under one theory or section of the statute, and the other defendant, Mrs. Betty Straughn, is charged under the other theory or section of the statute. And I will tell you what the particular elements are of each section as it relates to the charge against each defendant individually. So pay careful attention to that and you'll understand what I'm talking about.

        "Now, the defendant David Straughn is charged in Count One and Count Two with two separate charges of unlawful possession of marijuana in the first degree. Now, under the statute applicable to Mr. Straughn, I will tell you that a person commits the crime of unlawful possession of marijuana in the first degree if he possesses marijuana for his personal use only after he has already been previously convicted of either possession of marijuana in the second degree or unlawful possession of marijuana for his personal use only.
      "To convict under Count One or Count Two the State must prove beyond a reasonable doubt each of the following elements of unlawful possession of marijuana in the first degree. First, that the defendant David Straughn did possess marijuana for his personal use only after having been previously convicted of either unlawful possession of marijuana in the second degree or unlawful possession of marijuana for his personal use only. And two, that the defendant acted knowingly.”
      (R. 515-16.) Therefore, we assume that the jury found Straughn guilty of violating § 13A-12-213 (a) (2).

      . One camera showed that the man was tending to the crop at the same time that the other camera reflected that the man was returning to the truck and removing the mask. Commander Bowlan testified that the discrepancy was due to the fact that he had not synchronized the time mechanisms on the video cameras when he set them up.

      . Although it is clear that this issue was not preserved for our review, we will discuss this issue because our resolution of Straughn’s ''insufficient-nexus” claim requires an analysis of his claim that there was a false statement in the warrant.

      . The Alabama Supreme Court did not address whether the good-faith exception applied in Ex parte Perry. However, nothing in that case appears to limit or preclude the application of the good-faith exception in this case. Therefore, based on the claims raised and the facts presented in this case, we conclude that our holdings in this case and the Supreme Court's holding in Ex parte Perry can, and do, coexist.

      . Here, because the videotape did not contain a recorded statement by Straughn, this requirement is not applicable.


author: COBB, Judge.

text:
    Bryan Alexander BLOUNT v. STATE of Alabama.
    CR-01-2622.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Kimberly Ann Clark, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

Bryan Alexander Blount was indicted for, and convicted of, murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to 55 years’ imprisonment and was ordered to pay a $5,000 fíne and a victims compensation assessment in the amount of $1,000. This appeal followed.

The State’s evidence adduced at trial indicated the following. On November 12, 2002, Blount was trying to repair the brakes on his car at Vickers and Son’s Auto Salvage. Raymond Jackson arrived at the business and approached Blount, accusing him of stealing something from Jackson’s father. The two men argued. At one point, Jackson picked Blount up off the ground and then set him back down on the ground. Blount threatened to hit Jackson with a wrench he had in his hand, but, instead, he threw it to the ground. Jackson grabbed Blount and placed him in a headlock. After Jackson released Blount from the headlock, Blount told him that he was going to get his gun and shoot him. Blount ran approximately 150 to 175 yards to an abandoned trailer across the road from Vickers and retrieved a pistol. Charles Vickers, the owner of the salvage business, asked Jackson to leave because he did not want any fighting at his place of business. Jackson was walking in the direction of his car when Blount returned, running with the pistol. Blount said, “[R]un up on me now, fucking nigger.” (R. 34.) Blount fired the pistol, shooting Jackson in the chest and arm.

After the shooting, Blount ran to a nearby house. Blount admitted to Shantaz Dubose, a resident, that he shot Jackson. Blount gave the pistol to Sharana Dubose, who placed it inside a plastic bag in the woods behind the house. She later turned it over to the police. Blount was arrested later that day and was transported to the police department. Blount waived his Miranda rights and gave a taped confession.

Blount raises three issues on appeal, and we address each in turn.

I.

Blount contends that the trial court erred when it denied his motion for a judgment of acquittal. In his motion and on appeal, Blount claims that the State failed to prove a prima facie case of murder because, he says, it failed to prove the requisite intent. Specifically, Blount claims that the evidence supports a finding that he killed Jackson after he was provoked, which would support a conviction for manslaughter, but, he says, does not support a conviction for an intentional murder.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Moss v. State, 834 So.2d 135, 138-39 (Ala.Crim.App.2002).

Under § 13A-6-2, Ala.Code 1975, a person commits the offense of murder if “with intent to cause the death of another person, he causes the death of that person or of another person.” Whether a defendant intentionally caused the death of another person is a question of fact for the jury. Carr v. State, 551 So.2d 1169 (Ala.Crim.App.1989). Intent may be presumed from the use of a deadly weapon or from other circumstances. Barnes v. State, 571 So.2d 372 (Ala.Crim.App.1990). Intent is usually proven by circumstantial evidence. Smith v. State, 795 So.2d 788 (Ala.Crim.App.2000).

The evidence at trial supports a finding that Blount intentionally killed Jackson. Blount and Jackson were arguing. Blount left the yard to retrieve a pistol from a nearby trailer. Blount ran back to the yard and fired the pistol, killing Jackson. The trial court instructed the jury on provocation. It was for the jury to decide whether Blount was sufficiently provoked and/or whether there was reasonable time for Blount’s passion to cool before he shot Jackson. At trial, when asked if he had cooled down after the initial confrontation, Blount testified, “Oh, yes sir.” (R. 196.) Thus, the State presented sufficient evidence indicating that Blount intentionally shot Jackson, and the trial court did not err when it denied his motion for a judgment of acquittal.

II.

Blount contends that the trial court erred when it improperly commented on the evidence in the presence of the jury, thereby prejudicing him. During defense counsel’s cross-examination of a police officer, counsel asked, “I assume you have seen the full panorama of human emotion? You have seen people lie, give you half-lies, people try to connive their way out of situations? Is that correct?” (R. 114.) After defense counsel’s cross-examination, the trial court stated: “Thank you. Redirect? I am still trying to equate truth and falsehood with human emotions.” (R. 115.) Examination of the witness continued. At the conclusion of the witness’s testimony, the trial court stated:

“I do not want to be misunderstood about commenting on the evidence. I was just reflecting and I guess picking a little bit on [defense counsel], to a degree; talking about the full panorama of human emotions and then he starts talking about the truth and falsehood. And I wondered about how is that human emotion. In other words, it had nothing to do with that. It was just my comment.”

(R. 116-117.)

Defense counsel did not object to the alleged improper comment made by the trial court. Thus, this issue is not preserved for review. “ ‘[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.’ ” Ex parte Coulliette, 857 So.2d 793, 794 (Ala.2003) (quoting McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995)). The trial court will not be put in error on grounds raised for the first time on appeal. Ex parte Frith, 526 So.2d 880 (Ala.1987). Blount did not object to the trial court’s comment at the time it was made. Blount also did not object when the trial judge stated to the jury that his comment was not a comment on the evidence. Because Blount failed to object at trial on this ground, this issue was not preserved for review.

Moreover, we do not find that the trial court’s comment concerning defense counsel’s question improperly enhanced the officer’s testimony or led the jury to an improper inference with regard to the credibility of the officer’s testimony. Thus, the trial court did not comment on the evidence, and no error occurred. Even if Blount had preserved this issue for review, he would not be entitled to any relief.

III.

Blount claims that the trial court failed to grant him credit for time served pending trial when it sentenced him.

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.”

§ 15-18-5, Ala.Code 1975.

The record in this case indicates that Blount mentioned at his sentencing hearing that he had served time pending trial. The trial court sentenced him to 55 years’ imprisonment, but did not indicate that it was giving him credit for time served. The sentencing order does not mention credit for time served. Either the trial court did not credit Blount for time served or it deducted the time served from the total sentence imposed during the sentencing hearing without noting it in the record. This cause is, therefore, remanded to the trial court to determine and certify the actual time Blount spent incarcerated pending trial and to credit his sentence for time previously served. A return to remand shall be filed within 45 days of the release of this opinion.

AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Section 13A-6-2, Ala.Code 1975, provides:
      “(b) A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the person to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof.”