author: PITTMAN, Judge.

text:
    CERTAINTEED CORPORATION v. Carolyn RUSSELL. Carolyn Russell v. CertainTeed Corporation.
    2010877.
    Court of Civil Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Sept. 12, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1022124.

      Robert H. Sprain, Jr., of Sadler Sullivan, PC, Birmingham; and Preston Trousdale, Jr., of Jones & Trousdale, Florence, for appellant/cross-appellee CertainTeed Corporation.
    Lindsey Mussleman Davis of Holt, Mus-sleman & Holt, Florence, for appel-lee/cross-appellant Carolyn Russell.
   PITTMAN, Judge.

On September 11, 1998, Carolyn Russell and her husband brought an action alleging breach-of-contract claims, various breach-of-implied-warranty claims, negligence claims and a claim under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) for damage to their newly constructed house in Muscle Shoals caused by a black sooty residue that began to accumulate shortly after Russell moved into the house. The 'Complaint alleged that the black sooty residue had been caused by the decomposition of defective ductwork insulation manufactured by CertainTeed Corporation, a Pennsylvania corporation, that was distributed throughout the house through the air handler of the house’s heating, ventilating, and air-conditioning (“HVAC”) system. Russell and her husband sued CertainTeed and an additional defendant, Allen’s Air Conditioning, Inc. (“Allen’s”), the company that had installed the HVAC system that contained the CertainTeed ductwork insulation. CertainTeed answered and asserted various affirmative defenses, including the statute of limitations; Allen’s answered and asserted a cross-claim against Certain-Teed based upon alleged defects in Cer-tainTeed’s products that Allen’s had installed.

On June 16, 2001, CertainTeed and Allen’s each moved for a summary judgment. After conducting a hearing, the trial court entered a summary judgment as to the Russells’ breach-of-contract and breach-of-implied-warranty-of-habitability claims against CertainTeed and Allen’s, but it denied the summary-judgment motions as to all remaining claims.

On November 29, 2001, the trial court entered an order dismissing, with prejudice, the claims of Russell’s husband, pursuant to a stipulation between him and the defendants. The case was then tried to a jury over the course of three days. Under court supervision, the jury inspected Russell’s house, in its unrepaired condition.

At the close of the presentation of Russell’s evidence, CertainTeed moved for a judgment as a matter of law (“JML”), pursuant to Rule 50, Ala. R. Civ. P., on all of Russell’s claims against it. In its motion for a JML, CertainTeed contended that Russell’s claim under the AEMLD was time-barred, because, it argued, claims predicated on the AEMLD must be brought within two years of the time the cause of action accrues pursuant to § 6-2-38(l), Ala.Code 1975. Citing Rumford v. Valley Pest Control, Inc., 629 So.2d 623 (Ala.1993), CertainTeed contended that the two-year limitations period had begun to run when Russell discovered the damage to her home. In its motion, CertainTeed noted that Russell had testified that she had discovered the damage in January 1996, and it contended that her AEMLD claim had therefore accrued at that time; however, it noted, the AEMLD claim was not brought until September 1998. Cer-tainTeed further contended in its motion for a JML, that, to the extent that Russell had asserted a claim for negligence, that claim was subsumed under the AEMLD claim; therefore, it argued, she was barred from asserting a claim of negligence as a separate cause of action. As to Russell’s claims of breach of an implied warranty of merchantability and breach of an implied warranty of fitness for a particular purpose, CertainTeed contended that those claims were barred because of the lack of privity between Russell, the ultimate consumer of the product, and CertainTeed, the initial manufacturer of the allegedly defective product. CertainTeed cited §§ 7-2-314 and 7-2-315, Ala.Code 1975, as authority for its argument that Russell’s breach-of-implied-warranty claims were barred, and it contended that the language contained in those statutes required privity of contract in order for a purchaser to recover damages based on a breach-of-implied-warranty claim. The trial court granted CertainTeed’s motion for a JML with respect to Russell’s negligence claim, but it denied all other relief sought.

On the evening before the conclusion of the trial, Allen’s was dismissed as a party defendant on Russell’s motion. At the close of all of the evidence, CertainTeed again moved for a JML. The trial court denied the motion. The jury returned a verdict in favor of Russell, assessing damages of $5,850. The trial court, on December 7, 2001, entered a judgment on the jury verdict.

On January 2, 2002, CertainTeed moved to renew its motion for a JML and sought, in the alternative, a new trial, restating the grounds it had relied upon in its motions for a JML filed at the close of Russell’s evidence and that the close of all the evidence; CertainTeed also claimed that the trial court had erroneously allowed the introduction of inadmissible evidence and that the verdict rendered by the jury was contrary to law so as to warrant a new trial. On January 3, 2002, Russell moved for an additur, alleging that insufficient damages were awarded; in the alternative, she sought a new trial based on alleged discrimination in CertainTeed’s use of peremptory challenges to potential jurors and alleged juror misconduct. The parties consented of record, pursuant to Rule 59.1, Ala. R. Civ.P., to allow the trial court until April 23, 2002, to rule on all pending post-judgment motions. On April 18, 2002, the trial court granted Russell’s postjudgment motion to the extent it sought a new trial; it denied all other relief requested by the parties. CertainTeed appealed from the order granting a new trial (see § 12-22-10, Ala.Code 1975), contending, among other things, that the trial court erred in denying its motions for a JML. Russell cross-appealed, challenging the trial court’s denial of her request for an additur.

We first consider the correctness of the trial court’s denial of CertainTeed’s motions for a JML. On review of a ruling on a motion for a JML, an appellate court applies the same standard as the trial court applied in initially deciding the motion. That standard is “materially indistinguishable from the standard by which we review a summary judgment.” Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001). It must first be determined whether there was substantial evidence, when viewed in the light most favorable to the nonmovant, to warrant submitting the issue to the jury for determination. City of Birmingham v. Sutherland, 834 So.2d 755 (Ala.2002). In Fleetwood Enterprises, Inc. v. Hutcheson, 791 So.2d 920 (Ala.2000), our Supreme Court stated that “ ‘[substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” 791 So.2d at 923 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).

The trial court denied CertainTeed’s motion for a JML filed at the close of Russell’s evidence, except as to Russell’s claim of negligence. At the conclusion of all the evidence, CertainTeed again moved for a JML. Because CertainTeed elected to offer evidence in its own defense after the trial court had denied its motion for a JML at the close of Russell’s evidence, we review the trial court’s denial of Certain-Teed’s motion for a JML based on the record at the close of all the evidence. See “Committee Comments on 1973 Adoption” of Rule 50, Ala. R. Civ. P.; Alabama Power Co. v. Aldridge, 854 So.2d 554 (Ala.2002).

The trial court allowed Russell’s AEMLD and breach-of-implied-warranty claims to be submitted to the jury. With respect to the submission of the AEMLD claim, it is undisputed from the evidence in the record that Russell initially discovered the damage to her house in January 1996. Russell testified at trial that it was at that time that she realized the serious nature of the problem and summoned professionals to her house to evaluate the problem. While testifying, Russell referred to notes in her own handwriting that she had made regarding the problem with her house. Russell began making those notes in January 1996; however, she did not file this action until September 1998, over two and one-half years later.

Under Alabama law, a noncontract cause of action arises when the first indication of damage becomes apparent to the claimant. Our Supreme Court has stated the rule as follows:

“ ‘ “ ‘If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrued and the statute begins to run from the time the act is committed, be the actual damage [then apparent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiffs ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.’ ” ’ ”

McWilliams v. Union Pac. Res. Co., 569 So.2d 702, 703-04 (Ala.1990) (quoting Garrett v. Raytheon Co., 368 So.2d 516, 519 (Ala.1979), quoting in turn Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473 (1973), quoting in turn, Kelley v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917)).

CertainTeed correctly argues in its brief to this court, as it did in support of its motion for a JML in the trial court, that Russell’s AEMLD cause of action accrued when she observed the damage to her new house, even though she did not know what had caused the damage. See, e.g., Alabama Power Co. v. Cummings, 466 So.2d 99 (Ala.1985) (holding that a homeowner’s cause of action accrued only when the defects in her house actually manifested themselves, not when the defendant’s complained-of acts occurred), and Rumford v. Valley Pest Control, Inc., 629 So.2d 623 (Ala.1993) (holding that a cause of action against an extermination company accrued when the homeowners discovered termite damage and were deprived of the use and enjoyment of their house, rather than when the house had been inspected for termites three years earlier in connection with the homeowners’ purchase of the house).

Russell does not dispute that she discovered the initial signs of damage to her new house in January 1996 and that, at that time, she began to contact various skilled laborer’s, such as plumbers, electricians, and HVAC repairmen, to examine the damage and to attempt to determine and eliminate the source of the problem. As we have noted, Alabama law affords two years in which to assert a claim under the AEMLD. Smith v. Medtronic, Inc., 607 So.2d 156 (Ala.1992); § 6-2-38(l), Ala. Code 1975. The statute of limitations began to run on Russell’s claim predicated on the AEMLD in January 1996; Russell sued CertainTeed in September 1998, over six months after the two-year period set forth in § 6 — 2—38(Z) for bringing those claims had expired. Russell’s claim based on the AEMLD was time-barred; therefore, we conclude that the trial court erred in submitting Russell’s AEMLD claim to the jury.

The remaining claims submitted for jury determination were predicated on theories of breach of an implied warranty of merchantability and breach of an implied warranty of fitness for a particular purpose, warranties addressed in poxtions of Alabama’s Uniform Commercial Code (“UCC”). See §§ 7-2-314 and 7-2-318, Ala.Code 1975. Under the UCC as adopted in Alabama, a consumer seeking to recover for only economic injury and property damage has a valid implied-warranty claim against only his or her immediate seller with whom the consumer is in privity. Rhodes v. General Motors Corp., 621 So.2d 945, 947 (Ala.1993); Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999). However, CertainTeed manufactured the allegedly defective insulation at issue in this case and then sold the insulation to an intermediate distributor, not to Russell. David Allen, the principal owner of Allen’s, testified that he typically purchased most of the CertainTeed insulation that he installs in ductwork from a distributor in Sheffield and that he stores the product until he needs it to complete a job. Allen also stated that Russell was completely unaware of the type of insulation he had elected to use in installing her HVAC system.

In its motions for a JML, CertainTeed argued that Russell lacked privity with CertainTeed and supported its argument with applicable caselaw. There is no substantial evidence tending to support the proposition that Russell ever dealt with CertainTeed directly such that any implied warranties could be said to have been extended to Russell by CertainTeed. We conclude that the trial court erred to reversal in its denial of CertainTeed’s motions for a JML with respect to Russell’s implied-warranty claims.

Having determined that none of Russell’s theories of liability were legally viable, we necessarily conclude that the trial court improperly submitted her claims to the jury; therefore, we reverse the judgment and remand the case for the trial court to enter a JML in favor of Certain-Teed as to all claims. Because our conclusion as to the trial court’s denial of CertainTeed’s motions for a JML is dis-positive, we pretermit discussion of issues pertaining to the trial court’s rulings as to all postjudgment requests for relief by the parties other than CertainTeed’s renewed motion for a JML. Russell’s cross-appeal is dismissed as moot.

APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — DISMISSED.

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

THOMPSON and MURDOCK, JJ., concur in the result.

      . Russell’s husband continued to reside in the couple’s house, located about 30 miles from Muscle Shoals. The newly constructed house in Muscle Shoals was located approximately two blocks from the beauty salon that Russell owned and operated.

      . The air handler is the section of the HVAC system that contains the furnace; the fan; and the "A coil” component, the part of the air-conditioning portion of the HVAC system that contains the coolant. Inside the air handler, air is propelled by the fan through either the furnace or the A coil; the heated or cooled air is then distributed throughout the house through the ductwork.

      . A party appealing from an order granting a new trial can also assert error in denying dispositive motions filed during the previous trial. See John Crane-Houdaille, Inc. v. Lucas, 534 So.2d 1070 (Ala.1988).

      . We note that Russell does not claim to have suffered bodily injury as a result of a claimed breach of warranty. Under § 7-2-318, Ala. Code 1975, a seller's warranty extends to any natural person who is "injured in person” when it is reasonable to expect that person to use or be affected by goods under warranty.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Jimmie Franklin CAMPBELL v. STATE of Alabama.
    CR-02-0829.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Jimmie Franklin Campbell, pro se.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   On Application for Rehearing

COBB, Judge.

This Court’s unpublished memorandum of May 23, 2003, affirming the circuit court’s summary dismissal of his Rule 32, Ala. R. Crim. P., petition is withdrawn and the following opinion is substituted therefor.

Jimmie Franklin Campbell filed a Rule 32, Ala. R.Crim. P., petition in the circuit court seeking relief from his 1997 murder conviction. On direct appeal, this Court affirmed this conviction. Campbell v. State (No. CR-97-0383), 744 So.2d 955 (Ala.Crim.App.1998) (table). The certificate of judgment was issued on December 8, 1998. Campbell filed his first Rule 32, Ala. R. Crim. P., petition on February 11, 2000. In that petition, he claimed that his trial counsel was ineffective and that the trial court was without jurisdiction to render a judgment or to impose sentence. The circuit court dismissed his petition, and its judgment was affirmed on appeal. Campbell v. State, (No. CR-00-0129), 837 So.2d 886 (Ala.Crim.App.2001)(table). Campbell filed the instant petition on January 6, 2003. The circuit court summarily dismissed the petition. This appeal followed.

Campbell argues that the circuit court’s order dismissing his petition is void. He claims that the circuit court did not have jurisdiction to rule on his petition because the record does not reflect that the circuit court granted his request to proceed in forma pauperis and because the circuit court did not require him to pay the filing fee. We agree. We also note that the record does not indicate that Campbell paid the filing fee.

In Jackson v. State, 854 So.2d 157 (Ala.Crim.App.2002), this Court held that before it could address the appellant’s argument that the circuit court did not have jurisdiction to rule on his petition remand to the circuit court was required for a determination of whether the circuit court granted the appellant’s request to proceed in forma pauperis and whether the appellant paid the court filing fee. In accordance with Jackson, supra, we must remand this case to the circuit court for that court to make specific, written findings regarding whether Campbell paid the filing fee and whether it granted his request to proceed in forma pauperis. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF MAY 23, 2003, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.

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

      . The circuit clerk's notice of appeal indicates that Campbell was granted indigency status in the circuit court and that he was also granted indigency status on appeal. However, the record does not support those assertions.


author: BASCHAB, Judge. COBB, Judge,

text:
    Quentin HASKINS v. STATE of Alabama.
    CR-02-0563.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Rehearing Denied Oct. 24, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1030226.
    J. Barry Abston, Huntsville, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM. .

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

COBB, Judge,

concurring in the result.

I concur with Parts I, II, and IV of the majority’s unpublished memorandum. However, although I agree that the argument in Part III appears not to have any merit, I disagree that it is not preserved.


text:
    Richard Michael TRAWICK v. STATE of Alabama.
    CR-02-1369.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Richard Michael Trawick, pro se.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

On November 16, 1998, the appellant, Richard Michael Trawick, pled guilty to two counts of unlawful distribution of a controlled substance. The trial court sentenced him to serve concurrent terms of ten years in prison, but suspended the sentences and placed him on probation for one year. It also enhanced each of his sentences by five years because the sales occurred within three miles of a school and an additional five years because the sales occurred within three miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. He did not appeal his convictions. On March 21, 2003, the appellant filed a Rule 32 petition, challenging his convictions. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that “[t]he trial court did not have jurisdiction to suspend [his] 10-year base sentence^] to 1-year probation and then order him to serve 10 years in confinement for the enhanced portion of his sentenced] under 13A-12-250 and [13A-12-J270.” (Appellant’s brief at p. 5.) Specifically, he contends that the execution of his sentences was not valid because the trial court effectively “split [his] 20-year aggregate sentences and ordered him to serve 10 years’ in confinement for the enhancements.” (Appellant’s brief at p. 7.)

“ ‘This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.’ State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001).” Calloway v. State, 860 So.2d 900, 902 (Ala.Crim.App.2002). Therefore, the appellant’s aggregate sentence in each case was twenty years in prison. Further, the trial court effectively split the appellant’s sentences and ordered him to serve ten years in confinement. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003). On November 16, 1998, when the appellant was sentenced, § 15-18-8, Ala.Code 1975, provided, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 15 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution or treatment institution for a period not exceeding three years and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best.... ”

Because the appellant’s aggregate sentences were twenty years in prison, the trial court did not have jurisdiction to split his sentences. See Calloway, supra. Id. at 902. Accordingly, we remand this case to the circuit court with instructions that that court set aside the split portion of the appellant’s sentences. If the split sentence was a term of the appellant’s plea agreement, and if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion.

‘Matters concerning unauthorized sentences are jurisdictional,’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

REMANDED WITH INSTRUCTIONS.

MCMILLAN, P.J., and SHAW, J., concur; WISE, J., concurs in the result; COBB, J., dissents, with opinion.

COBB, Judge,

dissenting.

I respectfully dissent from the majority’s decision to remand this case for the trial court to set aside the split portion of the appellant’s sentences.

The holding in Calloway v. State, 860 So.2d 900 (Ala.Crim.App.2002)—that we treat sentences enhanced by §§ 13A-12-250 and -270, Ala.Code 1975, in the aggregate—was made in response to the Legislature’s amendment of the Split Sentence Act, effective May 25, 2000. That amendment allowed enhancements applied pursuant to §§ 13A-12-250 and -270 to be suspended. Because the amendment rendered those enhancements subject to suspension, we began to look at the sentence as an aggregate. Before the amendment, we looked only to the base sentence— separate from the school zone and housing project enhancements—in terms of the appropriateness of suspension, because the enhancements were not subject to suspension. See, e.g., Gamble v. State, 699 So.2d 978 (Ala.Crim.App.1997). However, Trawiek’s offenses were committed before the Split Sentence Act was amended, and his sentences are to be determined by the law in effect at the time of the commission of the offense. Davis v. State, 571 So.2d 1287, 1288 (Ala.Crim.App.1990). See also Wood v. State, 602 So.2d 1195, 1196 (Ala.Crim.App.1992). Therefore, the trial court’s split and suspension of his underlying sentences, without aggregating the enhancements, was proper, because the enhancements, at that time, were mandatory and not subject to suspension. Thus, I do not agree that this cause needs to be remanded for the trial court to set aside the split portion of Trawick’s sentences; his sentences were proper according to the law in effect at the time of the commission of the offenses.

      . In fact, until the amendment of the Split Sentence Act, the aggregate-sentence caselaw had applied to good-time calculations, not to the assessment of whether a sentence had been legally split and suspended.


author: BASCHAB, Judge.

text:
    Frederick BENTON v. STATE of Alabama.
    CR-02-1152.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Raymond A. Pierson, Mobile, for appellant.

      William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On November 29, 1989, the appellant, Frederick Benton, pled guilty to murder. The trial court sentenced him to serve a term of fifteen years in prison, but split his sentence and ordered him to serve three years followed by five years on probation. On January 28, 1995, the appellant’s probation officer filed an “Officer’s Report on Delinquent Probationer,” alleging that he had not reported, and the circuit court issued an alias writ of arrest. On January 8, 2003, the appellant was arrested on the alias writ of arrest. On March 7, 2003, the appellant’s probation officer filed a supplemental “Officer’s Report on Delinquent Probationer,” alleging that he had been arrested for and convicted of the new offenses of fourth-degree criminal possession of a controlled substance and fifth-degree criminal possession of stolen property in New York. After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The appellant argues that, in its written revocation order, the circuit court did not adequately state the evidence upon which it relied and its reasons for revoking his probation. In its written revocation order, the circuit court stated:

“2. The Defendant was informed that as a condition of his probation he was to not violate any Federal, or State laws;
“3. That while on Probation for the above charge, on, was arrested by the New York Police Department for Possession of Controlled Substance and has failed to report to his Probation Officer as ordered.
“4. That on March 18th, 2003 a hearing was held at which time the Court heard the following pertinent testimony: That while on Probation for the above charge, the Defendant was arrested by the New York Police Department for Possession of Controlled Substance and has failed to report to his Probation Officer as ordered.
“The Court is, therefore, reasonably satisfied from said evidence and testimony that the Defendant did violate the terms and conditions of his probation by failing to comply with the terms ordered by the Court.”

(C.R. 14.)

“ ‘ “A ‘mere arrest’ or the filing of charges is an insufficient basis for revoking one’s probation.” ’ Clayton v. State, 669 So.2d 220, 221 (Ala.Crim.App.1995), quoting Allen v. State, 644 So.2d 45, 46 (Ala.Crim.App.1994). ‘Before revoking probation because the probationer has been arrested, the trial court must be reasonably satisfied that the underlying charge against the probationer is true.’ Wade v. State, 652 So.2d 335, 336 (Ala.Crim.App.1994).”

Hunter v. State, 782 So.2d 845, 846 (Ala.Crim.App.2000) (footnote omitted). We cannot determine whether the circuit court revoked the appellant’s probation merely because he had been arrested for possession of a controlled substance or because it was reasonably satisfied that he had committed the offense. See Hunter, supra. Therefore, the circuit court did not adequately set forth in its written revocation order the evidence upon which it relied and its reasons for revoking the appellant’s probation. Accordingly, we remand this case to the circuit court with instructions that that court enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking the appellant’s probation. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 21 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, PH., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . During the revocation hearing, the circuit court did not admit the certified copy of the fifth-degree criminal possession of stolen property conviction.

      . At this time, we pretermit discussion of the remaining arguments the appellant raises in his brief to this court.


author: SHAW, Judge.

text:
    Curtis D. RICHARDS v. STATE of Alabama.
    CR-02-1306.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.
    Curtis Richards, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

Curtis D. Richards appeals the circuit court’s denial of his Rule 32, Ala.R.Crim. P., petition for postconviction relief, in which he attacked his November 1999 conviction for attempted second-degree rape and his resulting sentence of 10 years’ imprisonment. This Court affirmed Richards’s conviction and sentence on direct appeal in an unpublished memorandum issued on August 18, 2000. See C.R. v. State (CR-99-0904), 814 So.2d 1014 (Ala.Crim.App.2000)(table). This Court issued a certificate of judgment on October 17, 2000.

On September 3, 2002, Richards filed the present petition, along with a request to proceed in forma pauperis. The State filed a response to the Rule 32 petition, and the circuit court conducted an eviden-tiary hearing on the petition. Thereafter, the circuit court denied Richards’s Rule 32 petition. This appeal followed.

On appeal, Richards contends that the circuit court did not have jurisdiction to rule on his petition because, he says, the circuit court did not grant his request to proceed in forma pauperis and that in light of Goldsmith v. State, 709 So.2d 1352 (Ala.Crim.App.1997), this Court should vacate the circuit court’s order denying his petition.

We have reviewed the record on appeal and are unable to ascertain from the record whether the circuit court had jurisdiction to rule on Richards’s petition. Thus, we find it necessary, as we did in Broadway v. State, 881 So.2d 1068 (Ala.Crim.App.2003), and Jackson v. State, 854 So.2d 157 (Ala.Crim.App.2002), to remand this case for the circuit court to make specific, written findings as to whether the circuit court actually granted Richards’s request to proceed in forma pauperis or whether Richards paid the filing fee. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s written findings.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., recuses herself,

      . The circuit clerk's notice of appeal indicates that Richards was granted indigency status in the circuit court and on appeal. (C. 66.) However, as this Court determined in Broadway and Jaclison, this assertion was not supported by the record on appeal.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. WE THE PEOPLE FORMS AND SERVICE CENTER OF SARASOTA, INC., et al., Respondents.
    No. SC02-1675.
    Supreme Court of Florida.
    April 29, 2004.
    Rehearing Denied Sept. 27, 2004.
    Don Wich, Chair, Standing Committee on Unlicensed Practice of Law, John F. Harkness, Jr., Executive Director, and Lori Holcomb, Unlicensed Practice of Law Counsel, The Florida Bar, Tallahassee, FL; and Loretta Comiskey O’Keeffe, Branch Counsel, Unlicensed Practice of Law Department, Tampa, FL, for Complainant.
    Robert A. Norgard, Bartow, FL, for Respondents.
   PER CURIAM.

We review a referee’s report recommending that respondents, We The People Forms and Service Center of Sarasota, Inc., (“WTP/Sarasota”) and Danielle Kingsley be enjoined from engaging in the unlicensed practice of law (UPL). We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact and conclusion of law that respondents have engaged in UPL in Florida, and we enjoin such practice in the future. We further approve the referee’s recommendation that respondents be jointly and severally assessed a monetary penalty of $9000.

FACTS

On July 26, 2002, The Florida Bar filed a Petition Against the Unlicensed Practice of Law against respondents. The petition alleged that respondents had engaged in nine counts of UPL. The nine counts involved numerous separate incidents. The Bar sought an injunction as well as $9000 in monetary penalties against respondents.

The referee granted the Bar’s motion for judicial notice and its motion to deem matters admitted. Respondents also agreed to the entry of summary judgment in the proceedings before the referee. After holding a hearing on costs and penalties, the referee issued a report finding that there was no dispute of fact as to the following:

1. Respondent Kingsley and Respondent WTP/Sarasota were not and are not members of The Florida Bar and ... they were not and are not licensed to practice law in Florida.
2. Respondents advertise legal form preparation services beyond the business activities of typing legal forms and notary services, and selling legal forms and general printed information.
3. Respondents offered legal services directly to their customers by employing a licensed Florida attorney, Robert A. Norgard, to give legal advice to Respondents’ customers.
4. In the matter of Scott Edward Drage v. Tonya Drage, Case No.2001DR-3187-NC (Fla.Cir.Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to Scott Edward Drage in the preparation of his dissolution of marriage.
5. In the matter of William H. Schwaab, III v. Catherine A. Schwaab, Case No.2001-DR-9314-NC (Fla.Cir.Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to William H. Schwaab, III, regarding his dissolution of marriage.
6. In the matter of In Re Lett, Case No. 01-11545-8G7 (Bankr.M.D.Fla.), Respondents provided Thelma M. Lett with legal advice, legal services and personal legal assistance in the preparation of a bankruptcy proceeding.
7. Ronald L. Russell received legal advice, legal services and personal legal assistance from Respondents in the preparation of living trust documents.
8. In the matter of Bernard Flynt Johnson, Jr. v. Patricia Lee Johnson, Case No.2001-DR-3921-NC (Fla.Cir.Ct. 12th Cir.), Respondents provided legal advice, legal services and personal legal assistance to Bernard Flynt Johnson, Jr. concerning his dissolution of marriage.
9. In the matter of In re St. George, Case No. 01-10783-8W7 (Bankr. M.D.Fla.), Respondents provided John Allen St. George with legal advice, legal services and personal legal assistance in preparation of a bankruptcy.
10. In the matter of In re Plush, Case No. 01-10312-8B7 (Bankr.M.D.Fla.), Respondents provided legal advice, legal services and personal legal assistance to Christina Plush in regards to the preparation of a bankruptcy.
11. In the matter of In re Manbeck, Case No. 01-02357-8W7 (Bankr.M.D.Fla.), Respondents provided Mr. and Mrs. Mark Manbeck with legal advice, legal services and personal legal assistance in the preparation of a bankruptcy.
12. Respondent Kingsley contacted opposing parties and the attorneys for opposing parties on behalf of customers in reference to legal matters.

Based on the foregoing, the referee concluded that respondents had engaged in the unlicensed practice of law in Florida in violation of the decisions of this Court by (1) providing customers with legal assistance in the selection, preparation, and completion of legal forms; (2) correcting customers’ errors or omissions; (3) preparing or assisting in the preparation of pleadings and other legal documents for their customers; (4) corresponding with opposing parties or the attorneys of opposing parties as the representative of a customer in a legal matter; (5) hiring a licensed Florida attorney to provide legal advice to respondents’ customers; (6) holding a licensed Florida attorney out to their customers as respondents’ supervising attorney; and (7) advertising their services in such a way that led the public to believe that respondents were capable of providing legal services.

In light of these conclusions, the referee recommended:

A. That We The People Forms and Service Center of ■ Sarasota, Inc. and Danielle Kingsley be found to have engaged in the unlicensed practice of law in the State of Florida.
B. That We The People Forms and Service Center of Sarasota, Inc. and Danielle Kingsley be restrained and enjoined from engaging in the following activities:
1. Holding themselves out to the public in such a manner that the public places some reliance on [Respondents] to properly prepare legal documents;
2. Representing to the public, either personally or by use of advertisement, that We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley, or any persons that [are] either employed by or who act in concert with Respondents, that they are capable of advising and handling matters requiring legal skills;
3. Advertising any legal form preparation services beyond the business activities of typing legal forms and notary services, and selling legal forms and general printed information;
4. Advertising in a manner which suggests to the public that the services offered by We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley are the equivalent of or a substitute for the services of an attorney;
5. Advertising in any fashion which may lead a reasonable lay person to believe that We The People Forms and Service Center of Sarasota, Inc. and/or Danielle Kingsley offer to the public legal service, legal advice or personal legal assistance regarding any legal matter;
6. Completing forms or assisting in the completion of forms that are not simplified forms approved by the Supreme Court of Florida, except to the extent permitted by The Florida Bar v. Brumbaugh, 355 So.2d 1186 (Fla.1978);
7. Providing personal services in the preparation of legal documents that goes beyond selling forms, typing forms, providing written information or providing secretarial or notary services;
8. Preparing or assisting in the preparation of any pleadings, motions, legal memoranda, arguments, briefs, notices, or any other legal documents or pleadings for another person;
9. Using the title paralegal or legal assistant unless Respondent Kingsley is working for and under the supervision of a member of The Florida Bar and performs specifically delegated substantive legal work for which a member of The Florida Bar is responsible;
10. Offering legal services directly to the public by employing a member of The Florida Bar to provide the lawyer supervision required by Rule 10-2.1(b) of the Rules Regulating The Florida Bar;
11. Giving advice and making decisions on behalf of another person that requires legal skill and a knowledge of the law greater than that possessed by the average citizen;
12. Giving legal advice to another person concerning the application, preparation, advisability, or quality of any legal instrument or document or forms thereof in connection with any legal proceeding or procedure;
13. Construing or interpreting the legal effect of Florida or Federal laws and statutes for another person, as those laws relate to any legal matter including probate, dissolution of marriage and bankruptcy matters;
14. Giving advice and/or explaining legal remedies and options to another person that affects their procedural and substantive legal rights, duties and privileges;
15. Having direct contact with another person in the nature of consultation, explanation, recommendation, advice and assistance in the provision, selection and completion of preprinted legal forms;
16. Initiating and controlling a lawyer-client relationship, setting fees and paying an attorney to do work for a third party;
17. Engaging in any personal legal assistance in the preparation of legal forms including correcting customer’s errors or omissions or providing customers with any assistance in preparing the forms other than mere typing;
18. Advising another person as to the need for a will or living trust and related documents and/or identifying the type of will or living trust and related documents most appropriate for another person;
19. Assembling and/or drafting a will, living trust, deed, durable power of attorney or related documents for another person;
20. Executing and/or advising on the execution of a will, living trust, deed, durable power of attorney or related documents for another person;
21. Funding and/or advising on the funding of a living trust for another person;
22. Otherwise directly or indirectly through other persons engaging in the practice of law in the State of Florida until licensed to do so.
C. That the costs of this proceeding be taxed against Respondents jointly and severally.
D.That Respondents should be jointly and severally assessed a monetary penalty of $9000.00, payable to the Supreme Court of Florida.

On September 24, 2003, respondents filed with this Court objections to the referee’s report.

ANALYSIS

Having reviewed the record, we conclude that competent, substantial evidence exists to support the referee’s factual findings. We further conclude that under our case law, respondents’ actions constitute the unlicensed practice of law. See, e.g., Florida Bar v. Catarcio, 709 So.2d 96 (Fla.1998) (holding that a non-lawyer who has direct contact with individuals in the nature of consultation, explanation, recommendations, advice, and assistance in the provision, selection, and completion of legal forms engages in the unlicensed practice of law); Florida Bar v. Becerra, 661 So.2d 299 (Fla.1995) (enjoining a nonlawyer from advertising in any fashion that may lead a reasonable lay person to believe that the nonlawyer may offer to the public legal services, legal advice, or personal legal assistance); Florida Bar v. Consol. Bus. & Legal Forms, Inc., 386 So.2d 797 (Fla.1980) (holding that a corporation engaged in the unlicensed practice of law where its officers and stockholders were nonlawyers with no legal training who supervised and maintained a degree of control over the legal services it furnished through its lawyer employees and noting the inherent conflict of interest between the legal needs of the client and the monetary policy of the corporation and how such a business structure permits unlicensed and unregulated persons to profit from the providing of services which by law they are prohibited from providing); Florida Bar v. Brumbaugh, 355 So.2d 1186, 1194 (Fla.1978) (holding that while a nonlawyer may sell certain legal forms and type up instruments completed by clients, a non-lawyer “must not engage in personal legal assistance in conjunction with her business activities, including the correction of errors and omissions”). We conclude that respondents may be enjoined from engaging in such behavior.

We now turn to the issue of the recommended $9000 penalty against respondents. In 2000, Rule Regulating the Florida Bar 10-7.1 was amended to permit a referee in a UPL proceeding to recommend “the imposition of a civil penalty not to exceed $1000 per incident.” See Amendments to the Rules Regulating the Florida Bar, 763 So.2d 1002, 1033 (Fla.2000). In this case, after holding a hearing and finding that respondents engaged in the unlicensed practice of law, the referee recommended the assessment of nine $1000 fines, one for each count of UPL set forth in the Bar’s petition.

We conclude that the facts of the instant proceeding justify imposition of the penalty. The record clearly shows that respondents engaged in numerous acts of UPL. Further, at the hearing on costs and penalties, the Bar stated that WTP/Sarasota is “operating as usual.” Thus, it seems that WTP/Sarasota has been unfazed by the possibility that penalties may be imposed upon it in the instant proceeding. In light of the foregoing, we approve the referee’s recommendation that respondents We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley be jointly and severally assessed a monetary penalty of $9000.

CONCLUSION

Accordingly, we approve the referee’s report in its entirety, and we hereby enjoin respondents We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley from engaging in the unlicensed practice of law in the State of Florida, including those activities specified in the referee’s report and quoted above. We further approve the referee’s recommendation that respondents be jointly and severally assessed a monetary penalty of $9000, made payable to the Supreme Court of Florida. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from We The People Forms and Service Center of Sarasota, Inc., and Danielle Kingsley, jointly and severally, in the amount of $4,455.87, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

      . Further, by agreeing to the entry of summary judgment, respondents effectively stipulated to the Bar’s factual allegations and stipulated that, as a matter of law, respondents’ conduct constitutes the unlicensed practice of law. Therefore, we find respondents' attempts at this time to challenge the referee’s conclusion that their conduct constitutes the unlicensed practice of law to be improper.


text:
    AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC04-251.
    Supreme Court of Florida.
    Sept. 15, 2004.
    Jeffrey P. Wasserman, Chair, Family Law Rules Committee, Boca Raton, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Family Law Rules Committee petitions this Court out-of-cycle to consider amendments to the Florida Family Law Rules of Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

On November 13, 2003, this Court issued Amendments to Rules Regulating the Florida Bar & Florida Family Law Rules of Procedure (Unbundled Legal Services), 860 So.2d 394 (Fla.2003) (“Amendments ”), wherein the Court amended the Rules Regulating the Florida Bar and created new Florida Family Law Rule of Procedure 12.040, Attorneys, to permit limited representation (also known as “unbundled legal services”). The Court’s stated goal in adopting rules governing unbundled legal services was “to encourage attorneys to offer limited representation so that individuals who either cannot afford or do not desire full representation can obtain legal advice or representation on a discrete legal matter.” Id. at 402.

On February 23, 2004, the Family Law Rules Committee (“committee”) submitted a petition seeking to amend the Florida Family Law Rules of Procedure to implement this Court’s decision in Amendments. The committee’s proposals were published in the March 1, 2004, edition of The Florida Bar News, but no comments were received.

AMENDMENTS

Having considered the committee’s petition, we adopt new forms, with instructions for use, and amendments to existing rule 12.015, Family Law Forms, as proposed by the committee.

We adopt new Form 12.900(b), Notice of Limited Appearance. The purpose of this form is for the limited appearance attorney to notify the court and the other attorney or party of the limited appearance and the extent of that appearance.

We adopt new Form 12.900(c), Consent to Limited Appearance by Attorney. This form allows the client to give consent to limited representation for a particular hearing or a particular issue. In adopting this form, we emphasize that the limited appearance attorney is not precluded from utilizing a more comprehensive consent form such as that adopted by the Supreme Court of Maine under rule 3.4 of the Maine Code of Professional Responsibility, Commencement and Continuation of Representation.

We adopt new Form 12.900(d), Termination of Limited Appearance, to serve as the notice of completion that a limited appearance attorney must file at the conclusion of the limited representation pursuant to Florida Family Law Rule of Procedure 12.040(c) so that the attorney’s representation will terminate without leave of court.

We adopt new Forms 12.900(e), Ac-knowledgement of Assistance by Attorney, and 12.900(f), Signature Block for Attorney Making Limited Appearance. Form 12.900(e) is a signature block to be added to pro se pleadings and papers when the party has received assistance from an attorney, which is required under Florida Family Law Rule of Procedure 12.040(d), Attorneys; Preparation of Pleadings or Other Documents. Form 12.900(f) is a signature block to be added to pleadings and papers when an attorney is making a limited appearance.

Finally, we amend Florida Family Law Rule of Procedure 12.015, Family Law Forms, to assign responsibility for maintaining these forms to the Family Law Rules Committee and to insert a commentary that was inadvertently omitted from the rule.

Accordingly, we amend the Florida Family Law Rules of Procedure as reflected in the appendix to this opinion. Additions to rule 12.015 are indicated by underscoring; deletions are indicated by struck-through type. The commentary is included for explanation and guidance only and is not adopted as an official part of the rule. As all of the language in the forms is new, we forego the usual underlining and strike-through type format. The amendments shall become effective immediately.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO and BELL, JJ., concur.

APPENDIX

RULE 12.015. FAMILY LAW FORMS

(a) Forms Adopted as Rules. The forms listed in this rule shall be adopted by the rulemaking process in Fla. R. Jud. Admin. 2.130. The Family Law Rules Committee of The Florida Bar shall propose amendments to these forms and any associated instructions. These forms shall be designated “Florida Family Law Rules of Procedure Forms.” Forms coming under this provision are:

(1) 12.900(a), Disclosure From Non-lawyer;

(2) 12.900(b), Notice of Limited Appearance;

(3) 12.900(c), Consent to Limited Appearance by Attorney;

(4) 12.900(d), Termination of Limited Appearance;

(5) 12.900(e), Acknowledgment of Assistance by Attorney;

(6) 12.900(f), Signature Block for Attorney Making Limited Appearance;

(27) 12.901(a), Petition for Simplified Dissolution of Marriage;

(38) 12.902(b), Family Law Financial Affidavit (Short Form);

(49) 12.902(c), Family Law Financial Affidavit;

(510) 12.902(e), Child Support Guidelines Worksheet;

(611) 12.902(f)(3), Marital Settlement Agreement for Simplified Dissolution of Marriage;

(712) 12.910(a), Summons: Personal Service on an Individual;

(813) 12.913(b), Affidavit of Diligent Search and Inquiry;

(914) 12.920(a), Motion for Referral to General Master;

(40115) 12.920(b), Order of Referral to General Master;

(4416) 12.920(c), Notice of Hearing Before General Master;

(4217) 12.930(a), Notice of Service of Standard Family Law Interrogatories;

(4318) 12.930(b), Standard Family Law Interrogatories for Original or Enforcement Proceedings;

(4419) 12.930(c), Standard Family Law Interrogatories for Modification Proceedings;

(4520) 12.932, Certificate of Compliance with Mandatory Disclosure; and

(4621) 12.990(a), Final Judgment of Simplified Dissolution of Marriage.

(b) Other Family Law Forms. All additional Supreme Court approved forms shall be adopted by opinion of the Supreme Court of Florida and outside of the rulemaking procedures required by rule 2.130. These forms shall be designated “Florida Supreme Court Approved Family Law Forms.”

Commentary

2000 Adoption. To help the many people in family law court cases who do not have attorneys to represent them (pro se litigants), the Florida Supreme Court added simplified forms and directions to the Florida Family Law Rules of Procedure when adopting the rules in 1995. These forms initially had been adopted by the Court in In re Family Law Rules of Procedure, 663 So.2d 1049 (Fla.1995); In re Petition for Approval of Forms Pursuant to Rule 10-1.1(b) of the Rules Regulating the Florida Bar — Stepparent Adoption Forms, 613 So.2d 900 (FIa.1992), and Rules Regulating the Florida Bar — Approval of Forms, 581 So.2d 902 (Fla.1991).

In 1997, in an effort to fulfill the spirit of the Court’s directives to simplify the process of litigation in family law matters, the Family Court Steering Committee completely revised the existing forms and added new forms and instructions. The rules and forms then constituted more than 500 pages.

This rule was adopted in recognition that the forms would require continuous updating and that the rulemaking process was too cumbersome for such an undertaking-

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.900(b), NOTICE OF LIMITED APPEARANCE

When should this form be used?

This form should be used to provide notice to the court and the other attorney or party when an attorney is making a limited appearance for a client under Florida Family Law Rule of Procedure 12.040.

This form should be typed or printed in black ink. After completing and signing this form, the attorney should file the original with the clerk of the circuit court in the county in which the action is pending and keep a copy for his or her records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party or his or her attorney and to the attorney’s client.

Where can I look for more information?

See Florida Family Law Rule of Procedure 12.040.

IN THE CIRCUIT COURT OF THE_JUDICIAL CIRCUIT, IN AND FOR_COUNTY, FLORIDA

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.900(c), CONSENT TO LIMITED APPEARANCE BY ATTORNEY

When should this form be used?

This form should be used for a client to give consent when an attorney is making a limited appearance for the client under Florida Family Law Rule of Procedure 12.040.

This form should be typed or printed in black ink. After completing this form, the chent should sign it. The attorney or client should then file it with the clerk of the circuit court in the county in which the action is pending. The attorney and client should each keep a copy for his or her records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party or his or her attorney.

Where can I look for more information?

See Florida Family Law Rule of Procedure 12.040.

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULE OF PROCEDURE FORM 12.900(e), ACKNOWLEDGMENT OF ASSISTANCE BY ATTORNEY

When should this form be used?

This form should be added to the signature page of any petition, pleading, or motion when an attorney making a limited appearance under Florida Family Law Rule of Procedure 12.040 has assisted the petitioner or respondent in the preparation of the document. The petitioner or respondent should then sign the pleading and include his/her name and address.

Where can I get more information?

See the instructions to ^ □ Florida Family Law Rules of Procedure Forms 12.900(b)-(d) and Rule 12.040.

{Name},_, [/ one only] ( ) Petitioner ( ) Respondent, certifies that he/she has received the assistance of the following attorney in the preparation of this document.


author: MeMILLAN, Presiding Judge.

text:
    Larry PATE v. STATE.
    CR-02-0506.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Larry Pate, pro se.

      William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   MeMILLAN, Presiding Judge.

The appellant, Larry Pate, filed a Rule 32, Ala. R. Crim. P., petition, in which he challenged his May 7, 2001, conviction for the unlawful distribution of a controlled substance. Pate pleaded guilty, and the trial court sentenced him to 15 years’ imprisonment. The court split Pate’s 15-year sentence and ordered him to serve 2 years in confinement, followed by 5 years on probation. The court also imposed two five-year enhancements, pursuant §§ 13A-12-250 and -270, Ala.Code 1975. In his Rule 32 petition, Pate contended that the sentence enhancements should not have been applied because he was acting as a buyer’s agent. The trial court summarily denied the petition, finding, in pertinent part, that Pate’s claim that he was a buyer’s agent was refuted by his own signed statement and supplemental motion, and that Pate also had admitted the facts underlying the sentence enhancements.

Pate’s sole claim on appeal is that the trial court should not have applied the schoolyard and housing-project enhancements because they apply to sales of controlled substances and he was, he says, a buyer’s agent. However, Pate specifically waived the right to appeal his sentence as part of his written plea agreement. A defendant may, as a part of a negotiated plea agreement, agree to waive his right to appeal, so long as he is fully advised of its implications and he voluntarily agrees to enter the agreement. Watkins v. State, 659 So.2d 688 (Ala.Crim.App.1994).

Pate’s written plea agreement stated that “he w[ould] not attack said guilty plea in any way, directly or collaterally, including but not limited to, appeal, coram nobis and habeas corpus.” The agreement fully set out the terms of Pate’s sentence, including both sentence enhancements and the accompanying explanation of rights fully detailed the implications of the guilty plea. The appellant does not contend that his guilty plea was involuntary or unknowing in any way.

Summary disposition of a Rule 32 petition is proper if, among other things, no material issue of fact or law would entitle the petitioner to relief. Rule 32.7(d), Ala. R. Crim. P. Findings of fact are not required unless an evidentiary hearing is held. See Rule 32.9, Ala. R. Crim. P. Here, the trial court’s summary denial was proper, even though it was based upon different grounds. When the trial court is correct for any reason, its judgment is due to be affirmed on appeal. Bighames v. State, 440 So.2d 1231 (Ala.Crim.App.1983).

Although the trial court’s summary denial of Pate’s petition was proper, a review of the record reveals that the sentence imposed by the court was illegal. “Matters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Therefore, this court may take notice of an illegal sentence at any time.

Pate was sentenced to 15 years’ imprisonment, enhanced by an additional 5 years’ imprisonment pursuant to § 13A-12-250, and an additional 5 years’ imprisonment pursuant to § 13A-12-270. “This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.” State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001). Therefore, Pate’s sentence was a single sentence of 25 years’ imprisonment. Because the sentence was over 20 years’ imprisonment, no portion of the sentence could be suspended pursuant to the Split Sentence Act, § 15-18-8, Ala. Code 1975.

The record indicates that Pate’s original sentence was a part of his plea agreement with the State. Resentencing would be a rejection of the plea agreement. “The law is clear: if a trial court refuses to abide by the terms of a plea agreement, it must grant the defendant’s timely motion to withdraw the guilty plea.” Taylor v. State, 677 So.2d 1284, 1285 (Ala.Crim.App.1996). The trial court could not accept a plea agreement that called for an illegal sentence. Therefore, the court should allow Pate to withdraw his guilty plea if he so requests.

For the foregoing reasons, we remand this case for the trial court to conduct another sentencing hearing. At the hearing, the court should allow Pate an opportunity to withdraw his guilty plea. Due return should be filed with this court within 42 days of the release of this opinion. The return should include a transcript of the proceedings conducted on remand.

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

COBB, BASCHAB, and SHAW, JJ„ concur. WISE, J., concurs in the result.

      . Pate filed numerous petitions and amendments, challenging the 2001 conviction and a June 19, 2000, conviction of robbery in the second degree. He subsequently moved to separate the claims related to the two convictions and then abandoned all claims related to the controlled-substance conviction except the present one.

      . The State has asked this court not to consider Pate's claim because his brief was not served on the State. We have addressed the claim because the alleged error cannot be verified from the record.


author: SHAW, Judge. BASCHAB, Judge, SHAW, Judge. BASCHAB, JUDGE,

text:
    Lorenzo SMITH v. STATE of Alabama.
    CR-02-0697.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Opinion on Return to Remand Oct. 31, 2003.
    Rehearing Denied Dec. 19, 2003.

      Tommy Ray Scarborough, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

Lorenzo Smith was indicted for unlawful possession of cocaine, a controlled substance, in violation of § 13A-12-212, Ala. Code 1975. On December 5, 2002, Smith entered a guilty plea to the charged offense, and he was sentenced to three years’ imprisonment. Before entering his guilty plea, Smith filed a motion to suppress certain evidence. After conducting a hearing on the motion to suppress, the trial court denied the motion.

Smith appeals, contending that the trial court erred in denying his motion to suppress. However, for the reasons discussed below, this case is due to be remanded for the trial court to determine whether there was a preexisting agreement between the parties that Smith had reserved the suppression issue for appeal.

At the December 5, 2002, hearing, the following occurred:

“THE COURT: You are Lorenzo Smith?
“[SMITH]: Yes, sir.
“THE COURT: Mr. Smith, you are here in case number CC-2001-999, where you are charged with unlawful possession of a controlled substance. That is a Class C felony, for which you can receive from a year and a day up to 10 years and a fíne of up to $5,000. Do you understand that range of punishment?
“[SMITH]: Yes, sir.
“THE COURT: How old are you?
“[SMITH]: I’m 52.
“THE COURT: How much school have you completed?
“[SMITH]: Eleventh.
“THE COURT: Are you undergoing any psychiatric treatment or having any mental or emotional problems?
“[SMITH]: No, sir.
“THE COURT: Are you under the influence of any drugs, medication, or alcohol today?
“[SMITH]: No, sir.
“THE COURT: Have you had enough time to discuss this case with your attorney, for him to advise you of your rights and for you to tell him your version of the facts?
“[SMITH]: Yes, sir.
“THE COURT: Have you had explained to you the rights which you will give up by entering a plea of guilty as set out on the explanation of rights form?
“[SMITH]: Yes.
“THE COURT: Have you signed the form voluntarily, and do you understand it?
“[SMITH]: Yes, sir.
“THE COURT: Has anyone threatened you, harassed you, or tried to make you plead guilty in any way?
“[SMITH]: No, sir.
“THE COURT: Has anyone offered you any reward or any inducement to get you to plead guilty?
“[SMITH]: No.
“THE COURT: Has anyone promised you that you would get probation or a suspended sentence if you pled guilty?
“[SMITH]: No, sir.
“THE COURT: Based upon what you have told me here today, I find that your offer to plea[d] guilty is willingly, knowingly and intelligently made, and I will accept your plea if the offer given.
“[Prosecutor], could you give the recitation of facts giving rise to the indictment in this case?
“[PROSECUTOR]: Judge, the State believes at trial Officer David Elkins with the Dothan Police Department was on patrol back on May 3, 2001. He was called to North Appletree Street to meet with Officer Phillip Wise, who had told him — Officer Wise informed Elkins that he was investigating a suspicious person. During the investigation, he recovered several pieces of off-white compressed material that, afterwards, was turned over to the Department of Forensic Sciences, tested positive for the presence of cocaine that was located under a hat on the defendant’s head. And all of that occurred here in Houston County. And we believe at trial he would be found guilty of possession of a controlled substance, to wit, cocaine.
“THE COURT: Based upon the recitation of facts, I find that there is a foundation for the indictment in this case. And are you familiar with the contents of the indictment?
“[SMITH’S ATTORNEY]: Yes, sir. I have been over it with him, and he understands what he is charged with.
“THE COURT: And do you waive the reading of the indictment?
“[SMITH’S ATTORNEY]: Yes, sir. We waive the reading.
“THE COURT: To the indictment in this case, how do you plead, guilty or not guilty?
“[SMITH]: Guilty.
“THE COURT: Upon your plea of guilty, it is the judgment of the Court that you are guilty. Do you have anything to say as to why a sentence of law should not be pronounced upon you at this time?
“[SMITH’S ATTORNEY]: Judge, I do have something — I don’t know if this is the right time. I do want to reserve the right to appeal the denial of the suppression hearing [sic] we had last week.
“THE COURT: Yeah. That’s right. It rang a bell.
“[SMITH’S ATTORNEY]: But I do specifically want to reserve that right.
“THE COURT: Yeah. That is one of the bases for doing that.
“[SMITH’S ATTORNEY]: Yes, sir.
“THE COURT: And that right is reserved.
“[SMITH’S ATTORNEY]: Yes, sir. Nothing else, Judge.”

(R. 4-7, December 5, 2002, hearing.)

In Rivers v. State, 666 So.2d 33, 33-34 (Ala.Crim.App.1994), this Court stated:

“The transcript of the plea hearing reveals that after the appellant informed the trial court that he pleaded guilty to both offenses and after the trial court had accepted his plea, the appellant’s attorney stated: ‘I’d like to put on the record that this plea is entered, reserving the right to appeal the court’s denial of the motion to suppress.’ The trial judge then responded, ‘The court understands that.’
“In Prim v. State, 616 So.2d 381, 382-83 (Ala.Cr.App.1993), this Court explained that a defendant is required to reserve any issue on which he wishes to appeal before entering his guilty plea:
“ ‘[B]ecause a guilty plea waives all non-jurisdictional defects in proceedings occurring before the plea, Martin [v. State, 579 So.2d 69, 70 (Ala.Cr.App.1991)] and “a guilty plea represents a break in the chain of events which preceded it in the criminal process,” Tollett [v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)], an unconditional plea must be taken to represent the defendant’s decision to forego any challenge to events occurring before the plea. If the defendant does not intend to forego such challenges, he must make that intent clear before he enters his plea.’
“(Emphasis' added.)
“The appellant, citing Sawyer v. State, 456 So.2d 110 (Ala.Cr.App.1982), rev’d after record supplemented, 456 So.2d 112 (Ala.1983), requests that he be allowed to supplement the record or that we remand this cause to the trial court to allow the appellant to establish that the court and the district attorney were aware of his intent to appeal the adverse ruling on his motion to suppress. Because the record is unclear, we remand this case to the trial court. On remand, the trial judge is to supplement the record to' reflect whether there was a preexisting agreement among the parties that the appellant had reserved the suppression issue for appeal. A return is to be filed with this Court within 45 days of this opinion.”

On return to remand in Rivers, the trial court stated that the parties had agreed before the plea was entered that the appellant was reserving the suppression issue for appeal. Based on that finding by the trial court, this Court proceeded to review the merits of the issue.

In the present case, the record is unclear as to the meaning of the trial court’s response of ‘Yeah. That’s right. It rang a bell.” (R. 7) to Smith’s attorney’s statement, “Judge, I do have something — I don’t know if this is the right time. I do want to reserve the right to appeal the denial of the suppression hearing we had last week.” (R. 7.) Did the trial court’s response mean that it remembered the suppression hearing or that it remembered that following the suppression hearing Smith’s attorney had indicated his desire to reserve the right to appeal the denial of his motion to suppress? In light of Rivers, we remand this cause for the trial court to supplement the record to clarify whether there was a preexisting agreement between the parties that Smith was reserving the right to appeal the suppression issue. Due return shall be filed with this Court no later than 28 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

McMILLAN, P.J., and COBB, J., concur. BASCHAB, J., dissents, with opinion, which WISE, J., joins.

BASCHAB, Judge,

dissenting.

The holding of Prim is clear: A defendant who is entering a guilty plea must make clear his intent to reserve an issue for appeal before he enters his guilty plea. Further, this court has repeatedly held that it is the appellant’s duty to provide for this court a complete record on appeal. See Gamble v. State, 791 So.2d 409 (Ala.Crim.App.2000); Wilson v. State, 727 So.2d 869 (Ala.Crim.App.1998); Knight v. State, 621 So.2d 394 (Ala.Crim.App.1993). Therefore, implicit in Prim is the requirement that a defendant make his intent to reserve an issue for appeal known, on the record, before he enters his guilty plea. Because the appellant did not make clear, on the record and before he entered his guilty plea, his intent to reserve the denial of his motion to suppress for appeal, he did not preserve his argument for review on appeal. Therefore, we should affirm the trial court’s judgment.

I am also compelled to make the following observations. The court’s holding in this case should not be interpreted as a signal that a remand will be granted in every case in which a defendant attempts to reserve an issue for review on appeal after he enters his guilty plea. Rather, the holding should be narrowly construed and strictly limited to those cases in which, on the face of the record, there is an ambiguity as to whether the defendant attempted to reserve his right to raise an argument on appeal before he entered his guilty plea.

WISE, J., concurs.

On Return to Remand

SHAW, Judge.

Lorenzo Smith was indicted for unlawful possession of a controlled substance, cocaine, in violation of § 13A-12-212, Ala. Code 1975. Smith entered a guilty plea to the charged offense and was sentenced to three years’ imprisonment.

In an opinion issued on August 29, 2003, this Court remanded this case for the trial court to supplement the record to clarify whether there was a preexisting agreement between the parties that Smith was reserving the right to appeal the suppression issue. See Smith v. State, 884 So.2d 3 (Ala.Crim.App.2003). On remand, the trial court stated that it recalled that “at the suppression hearing held several days before the guilty plea, [Smith] announced his intention, by and through his attorney, to reserve the right to appeal the suppression hearing issue upon [a] plea of guilty.” (Supplemental record, C. 5.) Because it appears that Smith properly reserved the right to appeal the issue raised at the suppression hearing, we will now address the issues raised on appeal.

Before entering his guilty plea, Smith had filed a motion to suppress “all evidence and alleged contraband seized as a result of a search conducted on or about May 3, 2001.” (C. 45.) In his motion to suppress, Smith contended that “[o]n May 3, 2001, [Smith] was lawfully at or around 502 N. Appletree Street, Dothan, AL, when agents or officers of the Dothan Police Department illegally and unlawfully stopped, detained, searched and arrested [Smith].” (C. 45.) Additionally, Smith contended that “even if there was probable cause to make an investigatory stop and a protective pat-down search, that any further search, including a search of [Smith’s] cap, exceeded the scope of the pat-down search [and] amounted to an investigatory search without a warrant and, as such, is illegal.” (C. 9.) After a hearing, the trial court denied Smith’s motion to suppress.

Officer Phillip Wise of the Dothan Police Department was the only witness who testified at the suppression hearing. Officer Wise testified that his assigned patrol area included 502 North Appletree Street in Dothan; that two popular nightclubs at that time — Geno’s and Mickey’s — were located very near the 502 North Appletree Street property; that Pillar Parrish, the owner of the 502 North Appletree Street property, had spoken with him on several occasions about the problem he was experiencing with people congregating and/or trespassing on his property and that he was afraid that these people were engaging in illegal drug activity on his property; that Parrish had placed “no trespassing” signs on his property; and that Parrish had requested that Officer Wise keep an eye on the situation “to make sure that people weren’t congregating back there if they didn’t stay there and just to make sure they weren’t up to no good.” (R. 18.)

Officer Wise further testified that at approximately 9:45 p.m., on May 3, 2001, he was on patrol when he noticed “two individuals, a male and a female, [in the backyard of 502 North Appletree Street] huddled together” (R. 8); that when he pulled into the backyard, both individuals began walking away — toward an apartment located on the property; that the two houses located on 502 North Appletree Street have been divided into apartments; that he knew most of the people that lived in those apartments and he knew that neither of the individuals he saw lived in one of the apartments; and that because he did not recognize either the man or the woman as someone who lived at those apartments, he decided to stop them because he “just wanted to ID them.” (R. 8.) Officer Wise testified that the man he saw in the backyard of 502 North Appletree Street that evening was Smith; that he approached both individuals and “asked them what they were doing back in the backyard and who they were” (R. 10); that Smith replied that he was Lorenzo Smith and that he was doing “nothing” (R. 11); and that he patted Smith down for weapons because he noticed some red stains on Smith’s clothes that looked as if they could be blood. Officer Wise testified that as part of his pat-down of Smith, he felt the baseball cap that Smith had on his head. Officer Wise testified that when he felt Smith’s cap, he felt “[p]aper or something underneath [the cap]” so “just for [his] safety, [he] looked underneath the hat” and “found a brown folded-up piece of paper,” that he “crinkled [the paper], like that,” and that the “folded-up piece of paper ... had approximately three yellowish to white rocks inside.” (R. 12-13; 30.) The rocks tested positive for cocaine, and Smith was indicted for unlawful possession of cocaine.

I.

First, Smith contends that the trial court erred in denying his motion to suppress the evidence seized as a result of Officer Wise’s search because, he says, Officer Wise did not have sufficient grounds to justify a Terry investigatory stop and patdown.

In Riddlesprigger v. State, 803 So.2d 579, 582 (Ala.Crim.App.2001), this Court stated:

‘When an officer stops a person pursuant to Terry, the officer
“““is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.’ 392 U.S. at 30, 88 S.Ct. at 1884-85.” ’
“New v. State, 674 So.2d 1377, 1378 (Ala.Crim.App.1995)(quoting Worthy v. State, 473 So.2d 634, 636 (Ala.Crim.App.1985)).”

In State v. Hails, 814 So.2d 980, 986 (Ala.Crim.App.2000), this Court stated:

“‘Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.’
“United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998). ‘And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.’ Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).”

(Emphasis added.)

As previously noted, the owner of the property had requested that Officer Wise keep an eye on his property — he had told Officer Wise that people were congregating and/or trespassing on his property and he was afraid that they were engaging in illegal drug activity. While patrolling that evening, Officer Wise noticed Smith and a female “huddled together” in the backyard of 502 North Appletree Street. (R. 8.) When he pulled into the backyard, the two individuals began walking away; he did not recognize them as residents of 502 North Appletree Street so he stopped them to investigate their identities and their reason for being in the backyard of 502 North Appletree Street. After noticing what appeared to be blood on Smith’s clothes, he conducted a patdown for weapons. Officer Wise testified that the “sole purpose” for the patdown was “officer safety.” (R. 13.)

We find that under the totality of the circumstances it was not unreasonable for Officer Wise to make a Terry investigatory stop and patdown of Smith.

II.

Additionally, Smith contends that the trial court erred in denying his motion to suppress because, he says, even if Officer Wise’s initial stop and patdown were justified, the search and seizure of the “folded-up piece of paper” Officer Wise found under Smith’s cap exceeded the scope of the Terry search and amounted to an investigatory search without a warrant. (R. 13.) Specifically, Smith contends that the search of the contents of the “folded-up piece of paper” exceeded the scope of a Terry search and that the contraband seized as a result of that search should be suppressed because, he says, the nature of the “folded-up piece of paper” under Smith’s cap did not give Officer Wise a valid reason to search the contents of the “folded-up piece of paper” in light of the fact that Officer Wise’s crinkling of the paper did not reveal a weapon in the “folded-up piece of paper.”

During the suppression hearing, Officer Wise testified to the following:

“[PROSECUTOR]: Was [Smith] wearing a cap?
“[OFFICER WISE]: Yes, sir.
“[PROSECUTOR]: Did you feel his cap—
“[OFFICER WISE]: Yes, sir.
“[PROSECUTOR]: — as a part of your patdown search?
“[OFFICER WISE]: Yes, I did, sir.
“[PROSECUTOR]: When you felt his cap, what, if anything, did you feel inside his cap?
“[OFFICER WISE]: I felt like — I felt as if there was paper or something underneath his hat. I didn’t know what it was.
“[PROSECUTOR]: And what kind of weapon could he possibly, in your experience as a police officer, have concealed under his hat?
“[OFFICER WISE]: I have seen people have razor blades. I have seen people have just a — kind of like a nail, that’s — like a punch or something. I have seen them have them in their hats. So, just for my safety, I looked underneath the hat.
“[PROSECUTOR]: When you patted down his hat, I think you felt something in his hat?
“[OFFICER WISE]: Paper or something underneath it. I took it off and found a brown folded-up piece of paper, which had approximately three yellowish to white rocks inside. At that time, I detained the subject. And I used a field tester to — I used the field tester to test the substance, which was field-tested positive for cocaine. The subject was then placed in the back of my car and [I] got the narcotics officers involved.
“[SMITH’S ATTORNEY]: In response to [the prosecutor’s] question, you said something about the hat. You took the hat off? Is that right?
“[OFFICER WISE]: I said I felt the hat, and it felt as if something was underneath it.
“[SMITH’S ATTORNEY]: And you felt the hat while it was on his head, didn’t you?
“[OFFICER WISE]: I believe so, yes, sir.
“[SMITH’S ATTORNEY]: And you felt something that felt like paper, didn’t you?
“[OFFICER WISE]: It felt as if something was underneath his hat. It felt like a crinkled type paper, you know.
“[SMITH’S ATTORNEY]: Now, have you ever known paper as being used to be a weapon?
“[OFFICER WISE]: I have known people to wrap things in paper.
“[PROSECUTOR]: [Smith’s attorney] asked you if, when you searched his hat, did you feel something that felt like paper, and you stated that you did; is that correct?
“[OFFICER WISE]: Yes, sir.
“[PROSECUTOR]: When you felt his hat, and you felt something that felt like paper, why did you continue to search his hat?
“[OFFICER WISE]: To see if there was anything in his hat, or if — I felt the — what felt like paper or something — I mean, I am feeling something through a hat. And I didn’t know exactly what it was. I just wanted an ID.
“[PROSECUTOR]: And you mentioned in response to [Smith’s attorney’s] question that, sometimes in your experience as a police officer, paper is used to wrap something. What kinds of things that could be dangerous to you has paper been used to wrap in your experience?
“[OFFICER WISE]: I have seen razor blades wrapped in paper. I have seen pipes wrapped in paper. Either one could be used, Your Honor.
“[PROSECUTOR]: In your experience as a police officer, when you felt this man’s hat, and you felt paper under the hat, did that rule out in your mind the possibility that there was any weapon under his hat?
“[OFFICER WISE]: No, sir.
“[SMITH’S ATTORNEY]: I mean, in your experience, a weapon could be carried under a hat. And whát are those weapons?
“[OFFICER WISE]: I have seen pipes, glass pipes, and razor blades, straight razor blades; ■
“[SMITH’S ATTORNEY]: But we are talking about this night, May 3, 2001?
“[OFFICER WISE]: Yes, sir.
“[SMITH’S ATTORNEY]: On this night, did you feel a pipe in Mr. Smith’s hat?
“[OFFICER WISE]: No. I felt-I just felt his hat. I felt something underneath his hat.
“[SMITH’S ATTORNEY]: I am showing you a red hat.
“[OFFICER WISE]: Yes, sir.
“[SMITH’S ATTORNEY]: Was the hat you saw that night similar to this hat?
“[OFFICER WISE]: I can’t say for sure. I think it was a baseball hat, yes. I don’t know if it looked like this one.
“[SMITH’S ATTORNEY]: All right. Was he wearing a baseball cap similar already to the one I am showing you today?
“[OFFICER WISE]: Possibly, yes.
“[SMITH’S ATTORNEY]: All right. You don’t know?
“[OFFICER WISE]: Not for certain, no.
“[SMITH’S ATTORNEY]: This paper that you felt, was it in the brim of the hat, in the bib of the hat, or stuck up on the inside of the hat? ■
“[OFFICER WISE]: It was on the top of the hat.
“[SMITH’S ATTORNEY]: Where?
“[OFFICER WISE]: On top, like on top of your head.
“[SMITH’S ATTORNEY]: Uh-huh.
“[OFFICER WISE]: Underneath the hat.
“[SMITH’S ATTORNEY]: So, if the paper was on top of his head, under his hat, did the paper that you felt have a pipe in it?
“[OFFICER WISE]: No, it didn’t. ■
“[SMITH’S ATTORNEY]: It was softer to the touch, wasn’t it?
. “[OFFICER WISE]: It was soft to the touch — the paper was?
“[SMITH’S ATTORNEY]: Yes.
“[OFFICER WISE]: Yeah. I didn’t feel of it. I just crinkled it, like that.
“[SMITH’S ATTORNEY]: And you didn’t immediately draw your hand back, and say, oh, I got hurt; there is a weapon under there, did you?
“[OFFICE WISE]: No.
“[SMITH’S ATTORNEY]: You didn’t get cut, did you?
“[OFFICER WISE]: No.”

(R. 12-13; 24; 27-31.)

Officer Wise testified that during the Terry patdown, he found a razor blade in Smith’s shirt pocket and that as part of the Terry patdown, he felt Smith’s cap while it was on Smith’s head and that he felt “something underneath [Smith’s] hat” and that it was “something that felt like paper.” (R. 12, 24.) Officer Wise stated that in his experience as a police officer, he has “known people to wrap things[, like razor blades,] in paper.” (R. 24, 28.)

At the suppression hearing, the State argued the following:

“And Judge, we say, number one, this is not a Plain[-Feel] Doctrine case. We don’t rely on the' Plain[-Feel] Doctrine in this case. Secondly, those cases are different from the facts here. You can feel a pill bottle or a Tic Tac [breath mint] box, and you know it is a Tic Tac box or a , pill bottle. You know it does not contain a weapon. But this officer testified he felt the hat, and he could not rule out the possibility of weapons being under the hat, just by feeling the hat. So, he was entitled to take the hat off and search the hat. And that is a big difference between the two. The pat of the hat, in this case, did not rule out any weapons as would a [pat] of a pill bottle or a Tic Tac bottle in the defendant’s pocket. So, that is the big difference in this case.”

(R. 38-39.) On appeal, the State argues that. “Officer Wise was justified in removing the cap and in opening the folded paper because they both could have been concealing a razor blade.” (State’s brief at p. 8)(emphasis added).

We agree that when Officer Wise removed Smith’s cap and searched it, he did not exceed the scope' of the Terry patdown. See Riddlesprigger, 803 So.2d 579. However, we note that while Officer Wise testified that “[i]n [his] experience as a police officer, when [he] felt [Smith’s] hat, and [he] felt paper under the hat, [it] did [not] rule out m [his] mind-the possibility that there was any weapon under [Smith’s] hat” (R. 28) to demonstrate why he removed Smith’s hat and searched it, he did not offer any testimony regarding his decision to open the “folded-up piece of paper” after he had “just crinkled [the paper], like that” (R. 30), especially in light of the following testimony from the suppression hearing:

“[SMITH’S ATTORNEY]: And [after crinkling the paper] you didn’t immediately draw your hand back, and say, oh, I got hurt; there is a weapon under there, did you?
“[OFFICE WISE]: No.
“[SMITH’S ATTORNEY]: You didn’t get cut, did you?
“[OFFICER WISE]: No.”

(R. 30-31.) Officer Wise never testified that when he crinkled the “folded-up piece of paper” he felt something inside the paper that might be a weapon or that after crinkling the paper he was unable to rule out the possibility that there was a weapon contained in the “folded-up piece of paper” and that, consequently, it was necessary for him to open the “folded-up piece of paper.” In State v. Hails, 814 So.2d at 987, this Court stated that a Terry pat-down:

“ ‘ “ ‘is limited in scope to a “pat-down” of the suspects’ outer clothing and to seizure of hard objects whose size and shape give the officer probable cause to believe they are weapons.’ ” ’ Martin v. State, 695 So.2d 141, 143 (Ala.Crim.App.1996) (quoting Smith v. State, 292 Ala. 120, 289 So.2d 816, 818 (Ala.1974)). ‘Having detected the presence of an unknown, potentially dangerous object on a suspect during a frisk, the test for whether an officer may search farther and seize the item is an objective one.’ United States v. Swann, 149 F.3d [271,] 275 [(4th Cir.1998)]. It is objectively reasonable for an officer to seize what he or she reasonably believes to be a weapon when the object is approximately the same size and shape as a box cutter, which is often used as a weapon. Id. at 276. Applying the law to the facts of this case, it was reasonable for Doty to seize the credit card. During Doty’s patdown search of Hails, he felt something ‘small and hard’ that he believed could have been a razor blade, letter opener, or box cutter in her front jacket pocket. (R. 7.) Doty also testified that he knew that ‘a box cutter can come in the shape of a credit card.’ (R. 19.) This knowledge led Doty to reasonably believe that the small, hard, thin object in Hails’s jacket pocket could have been a weapon. (R. 19.) In order to assure himself that what he felt in Hails[’s] pocket was not a weapon that could be used against him, and to ensure his and the other officer’s safety, Doty seized the object. His seizure of the object was within the scope of the search. Doty did not reach into Hails’s pocket until he felt what he thought was a weapon. See Terry v. Ohio, 392 U.S. at 29-30, 88 S.Ct. 1868.”.

We note that Officer Wise testified at the suppression hearing that “the sole purpose” for his patting Smith down was for “officer safety” (R. 13) and, as previously noted, the State’s position at the suppression hearing was that this case was not a plain-feel doctrine case. Thus, it is not the State’s position that when Officer Wise crinkled the “folded-up piece of paper,” it was “immediately apparent” to him that the paper contained contraband, i.e., rocks of crack cocaine. See Allen v. State, 689 So.2d 212, 213 (Ala.Crim.App.1995)(during a Terry patdown, the police officer moved his hand “more than once” over Allen’s back pocket, which contained a small manila envelope folded in half to make sure that the envelope was not a weapon and that it did not contain a razor blade and that just as he realized that there was no weapon, he simultaneously realized that the envelope was a dime bag of marijuana). See also Blake v. State, 772 So.2d 1200, 1204-05 (Ala.Crim.App.2000), wherein this Court stated:

“Officer Spears’s tactile perception of the small lumps while patting the outer surface of Blake’s pants pocket, combined with the attendant circumstances known to Officer Spears at that time, provided Officer Spears with probable cause to believe that the lumps were rocks of crack cocaine before he reached into Blake’s pocket to retrieve them.... We find that, given the totality of the circumstances, Officer Spears had probable cause to believe that the lumps he felt through Blake’s clothing were rocks of- crack cocaine. Because Officer Spears was feeling for weapons at the time he felt the lumps and recognized them as crack cocaine, the probable cause arose while he was acting within the permissible scope of a protective patdown conducted pursuant to Terry.”

In Ex parte James, 797 So.2d 413, 418-19 (Ala.2000), the Alabama Supreme Court stated:

“Terry permits a police officer to conduct a patdown search of a suspect’s outer clothing to ‘discover guns, knives, clubs or other hidden instruments [which may be used] for the assault of the police officer.’ 392 U.S. at 29, 88 S.Ct. 1868 (emphasis added). The police officer may intrude beneath the outer surface of the suspect’s clothing only if the police officer feels an object he reasonably suspects may be a weapon. Terry, 392 U.S. at 30, 88 S.Ct. 1868.
“In the case before us, Officer Gill did not pat down the outer surface of James’s pants pocket to determine if a weapon was present and did not ‘inadvertently discover’ the marijuana cigarettes under the ‘plain-feel’ doctrine. When Officer Gill saw James attempt to reach his hand into his pants pocket, Gill moved James’s hand, reached into the pants pocket, and removed the marijuana cigarettes. Officer Gill admitted that he did not pat down the pocket before he reached inside the pocket. Also, there was no evidence that Gill feared for his safety when he saw James attempt to put his hand in his pocket. Therefore, Officer Gill violated James’s right against unreasonable search and seizure when he reached into James’s pocket without any legally recognized justification gained from first patting down the outer surface of the pocket to determine whether a weapon was present.”

(Footnote omitted.)

In light of the foregoing, we conclude that while Officer Wise did not exceed the scope of the Terry patdown when he removed Smith’s cap, he did exceed the scope of the Terry patdown when he opened the “folded-up piece of paper” and discovered the rocks of crack cocaine because he failed to establish that he was justified in opening the paper — he did not establish that he felt something in the paper that felt like a weapon; he did not establish that he was unable to rule out the possibility that a weapon was contained in the “folded-up piece of paper” and that, consequently, it was necessary for him to open the paper; and he was unable to establish that it was immediately apparent to him that the “folded-up piece of paper” contained contraband. Thus, we hold that the trial court erred when it denied Smith’s motion to suppress.

Therefore, Smith’s guilty-plea conviction for unlawful possession of cocaine is reversed and this case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, JUDGE,

dissenting.

I adhere to my dissent on original submission on the ground that the appellant did not reserve his right to appeal the denial of his motion to suppress. Furthermore, because the officer testified that he had known people to wrap weapons, including razors and pipes, in paper; because he had known people to carry weapons such as pipes and razor blades under hats; and because he had already found a razor blade in the appellant’s shirt pocket, he was justified in opening the folded piece of paper. Therefore, I also dissent from this court’s opinion on return to remand.

      . Officer Wise is not related to Judge Wise.

      . Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).