author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Richard Terrell BUFORD, Jr. v. Linda Ellen Frierson BUFORD.
    2020163.
    Court of Civil Appeals of Alabama.
    May 9, 2003.

      John D. Norris, Montgomery, for appellant.
    Slade Watson, Mobile, for appellee.
   THOMPSON, Judge.

On November 8, 2000, Linda Ellen Fri-erson Buford sued Richard Terrell Buford, Jr. (“Terry”), seeking a divorce to dissolve their common-law marriage. On January 2 and 25, 2002, the trial court held a preliminary hearing at which, among other things, both parties testified as to the facts surrounding the alleged common-law marriage. On February 1, 2002, the trial court entered an order finding that a common-law marriage existed between Linda and Terry. At Terry’s request, the trial court later made its order finding the existence of a common-law marriage final in accordance with Rule 54(b), Ala. R. Civ. P. Terry timely appealed.

The ore tenus rule provides our standard of review for this determination that a common-law marriage existed. Downs v. Newman, 500 So.2d 1062 (Ala.1986). We assume that the trial court’s findings are correct, and its judgment based upon those findings will not be reversed unless it is plainly and palpably wrong, without any supporting evidence, or manifestly unjust. Dovms v. Newman, supra. Courts of this state closely scrutinize claims of a common-law marriage and require clear and convincing proof of such a marriage. Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982).

Linda testified that she met Terry through his uncle, who was involved with her father in breeding and racing greyhounds. Linda testified that she began having sexual relations with Terry when she was 18 years old and Terry was 19 years old. Linda testified that she began living with Terry’s mother in November 1984, shortly after she became pregnant with his child. Linda testified that Terry lived next door to her in his grandmother’s house. She testified that the parties’ only child, Richard Edward Buford, was born on July 22,1985.

Linda testified that in November 1984 she began using the last name Buford. According to Linda, after the birth of their son, she and Terry lived together in a residence attached to his grandmother’s house; she testified that they eventually moved into an apartment together in Mobile. Linda testified that Terry gave her his grandmother’s antique ring and a “wedding set” in November 1984 and that he gave her a “wedding ring” on December 25, 1984. Linda testified that Terry gave her the ring in front of his entire family. Linda testified that Terry introduced her as his wife to their family, Mends, and their parents.

Linda testified that the couple incurred joint debts for automobiles, furniture, and charge accounts and that she and Terry opened a joint bank account in November 1984. Linda testified that Terry also added her to his bank account as Linda Buford. According to Linda, the parties moved several times, each time continuing to cohabitate; they lived in Alabama, New Hampshire, and Massachusetts.

At the hearing, Linda testified that she was listed on both business and personal bank accounts with Terry and produced the following bank-account statements: an October 7, 1985, bank statement from Central Bank in Mobile for an account in the name of “Terry Buford or Linda Buford”; a March 18, 1985, bank statement from First National Bank of Mobile for an account in the name of “Terry Buford or Linda Buford”; a February 8, 1988, Bank of Mississippi bank statement for an account in the name of “Terry Buford or Linda E. Buford”; a June 15, 1987, bank statement from Southeast Bank in Panama City, Florida, for an account in the name of “R.T. Buford, Jr. or Linda E. Buford”; and an August 31, 1990, bank statement from Bay Bank in Burlington, Massachusetts, for an account in the name of “Richard J. [sic] Buford and Linda Buford.” Linda testified that she and Terry filed joint income-tax returns; she testified that she could not produce those tax records because neither the Internal Revenue Service nor the company that had prepared their tax returns kept records that were over ten years old. In 1991, Linda filed an individual federal tax return, as “head of household.”

Sally Ferrera, Linda’s mother, testified that she did not know the couple had not had a ceremonial wedding until the day of the hearing. Ferrera testified that Linda led her to believe that the couple were married at a ceremony; Linda testified that she deceived her mother because Ferrera disapproved of premarital sexual relations and cohabitation. Ferrera testified that Terry did not lie to her about the wedding. However, Ferrera testified that she heard Terry refer to Linda as “his wife.”

Terry testified that he did not consider his relationship with Linda to be a common-law marriage, but that he considered her to be his girlfriend. Terry testified that both he and Linda dated other people during their relationship. Terry stated that he was aware that Linda used his last name, “Buford,” but did not remember living with her at an apartment complex in Mobile. Further, Terry testified that he and Linda did not live together after the birth of their son; he confirmed that Linda lived with his mother and he lived with his grandmother but that the couple were not cohabitants. According to Terry, the antique ring he gave Linda was not intended to be a wedding ring and he testified that he does not remember giving her a wedding ring at Christmas in 1984.

During his testimony, Terry said that he and Linda had joint bank accounts because they were business partners in a greyhound kennel and that he had placed her name on the account as a “business surety”; Terry did not testify as to why he had added her as Linda Buford. Terry denied that he and Linda had filed joint tax returns.

Terry testified that he married his current wife, Pat Lorenz, on November 12, 1992, in Pulaski, Arkansas. Terry testified that he and Pat have an adopted son who is six years old. Pat testified that she had known and communicated with Linda about Terry’s child support for Linda and Terry’s son for the past 10 years. Linda claims that she told Pat that she and Terry were married; Pat testified that during the 10 years they had known each other, Linda did not mention that she and Terry were married.

Terry’s uncle, Ed Adams, and Terry’s mother, Emily Mott, testified that they considered Linda to be Terry’s girlfriend. Adams testified that Terry and Linda were cohabitating when they moved to New Hampshire in 1988 and that he lived with them. Mott testified that when Terry and Linda resided with her in Mobile they were not cohabitating or sexually active because Linda resided with her and Terry resided with the grandmother; Mott testified that Terry and Linda were not allowed to cohabitate under her roof. Mott testified that she did not remember Terry’s giving Linda a wedding ring for Christmas in 1984. Linda testified that Mott called her her “daughter-in-law” and that she often gave her advice about how to be a good “wife.”

Mott stated during testimony that she had personal knowledge that Terry dated women other than Linda during the time Linda was claiming they were married; she identified those women as Janelle, Julie, and Jolene. Linda refuted that testimony; she testified that Jolene was Terry’s high-school girlfriend whom he had dated before he met her; Linda testified that Terry dated Janelle after they had separated and that she did not know Julie but thought she might be a young woman who worked at the dog track. Terry and Mott testified that Linda had had several boyfriends during the time of the alleged common-law marriage. Linda testified that she considered herself married to Terry and that she did not date other men until the parties separated in late 1991 or early 1992; Linda admitted that she lived with one of her boyfriends for seven months in 1997, five years after Terry married Pat. Linda alleged that she continued to have sexual relations with Terry after he was married to Pat.

On appeal, Terry argues that the trial court erred in finding that a common-law marriage existed between the parties because he did not agree to enter into a marital relationship with Linda and there was no public recognition of the relationship as a marriage.

“[WJhile no ceremony or particular words are necessary; there are common elements which must be present, either explicitly expressed or implicitly inferred from the circumstances, in order for a common-law marriage to exist. Those elements are: 1) capacity; 2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and 3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation.”

Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986)(citing Etheridge v. Yeager, 465 So.2d 378 (Ala.1985)).

This court has addressed the issue of mutual agreement to enter permanently the marital relationship and has held that “[n]o specific words of assent are required” and that “present intention is inferred from cohabitation and public recognition.” Waller v. Waller, 567 So.2d 869, 869-870 (Ala.Civ.App.1990). The manner in which a couple must cohabit in order to gain public recognition is stated in Maryland v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822 (1884):

“But where no such ceremonies are required, and no record is made to attest to the marriage, some public recognition of it is necessary as evidence of its existence. The protection of the parties and their children, and considerations of public policy require this public recognition; and it may be made in any way which can be seen and known by men, such as living together as man and wife, treating each other and speaking of each other in the presence of third parties as being in that relation, and declaring the relation in documents executed by them whilst living together, such as deeds, wills, and other formal instruments.”

112 U.S. at 495, 5 S.Ct. 278 (cited with approval by the Alabama Supreme Court in Piel v. Brown, 361 So.2d 90 (Ala.1978), and Downs v. Newman, 500 So.2d 1062 (Ala.1986)).

There must also be clear and convincing evidence that the parties “live[d] as to achieve public recognition of their status as husband and wife” or, co-habitated. Piel v. Brown, 361 So.2d at 95. While living together and conducting a sexual relationship are indicative of achieving marital status, those are not absolutely necessary to a determination of cohabitation. Other evidence to be considered is whether John B. Crawley, Is the Honeymoon Over For Common-Laio Marriage: A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumberland L.Rev. 399, 409-410 (1998-1999)(footnotes omitted).

“the parties considered themselves married, shared household duties and expenses, maintained joint accounts, filed joint tax returns, used the same surname, referred to or introduced each other as a spouse, listed themselves as ‘married’ on various documents, or reared children together.”

It is undisputed that Terry and Linda had a son together, and he bore Terry’s last name. Linda testified that she used Terry’s last name from November 1984 until sometime in 1991 or 1992; that testimony was supported by several bank-account statements and her Social Security card. Linda, Terry, and Terry’s uncle testified that Linda and Terry cohabitated. Linda testified that Terry gave her a “wedding ring,” which she says she wore until the parties separated. Linda testified that Terry introduced her to their family and friends as “his wife” and that Mott referred to her as her “daughter-in-law.”

While Terry and his family might have considered Linda to be a girlfriend, Terry and Linda’s outward signs — their child and the facts that they cohabitated and had joint bank accounts — satisfy enough of the “aforementioned criteria generally indicative of public recognition” to determine that Terry assented to the marriage. Downs v. Newman, 500 So.2d at 1064. The trial court weighed the disputed evidence and determined that Terry and Linda met the requisite elements of a common-law marriage. Given the facts and the standard of review, we cannot say that the trial court’s decision was plainly and palpably wrong. Skipworth v. Skipworth, 360 So.2d 975 (Ala.1978).

Terry also argues that Linda should be estopped from asserting the existence of a common-law marriage because Linda did not file for divorce until eight years after his ceremonial marriage to his current wife. Terry made no argument regarding estoppel at the hearing or in a postjudgment motion. This court may not consider an issue raised for the first time on appeal. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000)(citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)); S.W.M. v. D.W.M., 723 So.2d 1271 (Ala.Civ.App.1998). This court’s review is restricted to those arguments considered by the trial court. Somers v. McCoy, supra (citing Lyons v. Porter, 539 So.2d 298 (Ala.Civ.App.1988)). Further, Terry’s brief on appeal does not cite any statutory authority or caselaw in support of his argument. It is not the function of this court to create arguments or to perform legal research for an appellant. Carr v. Howard, 777 So.2d 738 (Ala.Civ.App.2000)(citing McLemore v. Fleming, 604 So.2d 353 (Ala.1992)). Therefore, we decline to address that argument.

AFFIRMED.

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

CRAWLEY and MURDOCK, JJ., dissent.

MURDOCK, Judge,

dissenting.

I respectfully dissent for two reasons. First, the plaintiff filed a complaint seeking a divorce. The trial court’s finding as to the threshold factual issue whether the parties were married is not an order as to a separate claim that may be properly certified as a final judgment pursuant to Rule 54(b), Aa. R. Civ. P. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380 (Aa.1987); Williams v. Fogarty, 727 So.2d 831 (Ala.Civ.App.1999).

Second, even if the trial court’s order properly could have been the subject of a Rule 54(b) certification, I am not persuaded that the certification in the present case was adequate. The trial court did not make any reference to Rule 54(b) in its order and did not make “an express determination that there is no just reason for delay” as required by the rule. See Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000); Moore v. Moore, 666 So.2d 5 (Ala.Civ.App.1995); see also Marlow v. Waters, 858 So.2d 980 (Ala.Civ.App.2003).

I therefore must conclude that this Court is without jurisdiction of this matter because it is an attempted appeal from a nonfinal, interlocutory order, not from a final judgment. The appeal therefore should be dismissed.

CRAWLEY, J., concurs.

      . The court characterizes this finding as a "partial finding.”


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Richard Terrell BUFORD, Jr. (In re Richard Terrell Buford, Jr. v. Linda Ellen Frierson Buford).
    1021372.
    Supreme Court of Alabama.
    Sept. 26, 2003.
    _ . _ . John D' Noms’ Montg°mery, for petition.6r
    Slade Watson, Mobile, for respondent.
   WOODALL, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasoning, or statements of law in the Court of Civil Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.


author: YATES, Presiding Judge.

text:
    Orlando Carter SNEAD III v. Rosemary Elizabeth SNEAD.
    2020052.
    Court of Civil Appeals of Alabama.
    June 20, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021689.

      Gerard J. Durward and G. John Dur-ward, Jr., of Durward & Cromer, Birmingham, for appellant.
    Lisa L. Woods, Birmingham; and Douglas L. Key of Key, Greer, Frawley, Key & Harrison, Pelham, for appellee.
   YATES, Presiding Judge.

Orlando Carter Snead III (“the father”) appeals from the trial court’s denial of his motion, filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking relief from a judgment entered in favor of Rosemary Elizabeth Snead (“the mother”) on her petition for a rule nisi seeking enforcement of the trial court’s 1993 modification of their divorce judgment. The trial court entered a judgment against the father for arrearages in his child-support obligation and in his postminority-support obligation. The father contends that the trial court erred in denying his Rule (60)(b)(4) motion challenging the service of process.

A brief summary of the proceedings between the parties is necessary to an understanding of the issue raised on appeal. The parties were divorced on October 18, 1983, after 13 years of marriage. Two children, a son and a daughter, had been born to the parties during the marriage. The father was employed during the marriage as a physician, practicing in the specialty of neurology. There is no evidence indicating whether the mother has ever been employed.

After the entry of the divorce judgment, there were several proceedings brought by the mother to enforce the father’s support obligations and to modify the divorce judgment to accommodate the parties’ changed circumstances.

A modification judgment entered in 1990 is the first indication in the record that the father had relocated to Los Angeles, California. In a 1991 modification judgment, the trial court cited the father with contempt, finding him $6,137 in arrears in his obligation to pay the children’s medical expenses.

In July 1999, the mother petitioned for a rule nisi that led to the entry of the judgment the father now challenges as void. In her petition, the mother stated that the father had failed to comply with the trial court’s September 1993 modification judgment ordering the father to pay an amount in arrears for the children’s medical expenses, college expenses for the older child, and $992 monthly child support for the minor child. The mother alleged in her petition that the father was in arrears in his child-support obligation in the amount of $11,904, excluding interest, and that the father had also failed to pay college expenses for both children and was in arrears on that obligation in the approximate amount of $49,000.

The mother subsequently encountered difficulties in attempting to serve the father with her rule nisi petition; the father had relocated to Canada, where he was working as chief of the department of neurology at a hospital in Toronto, Ontario. On March 22, 2000, the mother moved for an order allowing her to serve the father by certified mail, citing as authority Rule 4.3 and Rule 4.4, Ala. R. Civ. P. Those rules authorize substitute service on a party when the trial court determines that the party has deliberately avoided traditional service of process. The mother supported her motion with the affidavits of James Barter and Kate Anthony-May, both court-appointed special process servers. In his affidavit, Barter reported trying to serve the father on September 20, 1999, at the Toronto hospital where he was employed. Barter reported going to the father’s office and asking the father’s secretary if he could see the father. The secretary informed Barter that the father was in the lab and would not come out. This scenario was repeated on two other occasions — on September 22 and September 27, 1999. Barter averred that, based on those experiences, it was his opinion that the father was attempting to avoid service. Anthony-May’s affidavit reflects that she tried to serve the father a total of 17 times without success; the facts averred in her affidavit describe in detail each failed attempt. She averred that she had formed the opinion, based on her many failed attempts at personal service, that the father was avoiding service.

On March 23, 2000, the trial court granted the mother’s motion and authorized her to serve the father both by certified and by first-class mail at the hospital address in Toronto, Ontario. Thereafter, the return receipt on the eertified-mail envelope was returned “unclaimed.” The rule nisi petition that had been sent to the father by first-class mail was not returned.

In an order entered on June 30, 2000, the trial court expressly concluded that the evidence demonstrated that the father was avoiding service of the action. The court further concluded that in light of its determination that the father was avoiding service and because the mother had previously sent to the father, by first-class mail, a copy of the rule nisi petition, which had not been returned, Rule 4.4(b)(5), Ala. R. Civ. P., authorized it to proceed to hear the claims raised by the mother in her petition. The court then, in the same order, adjudicated the merits of the mother’s petition, directing the father to pay $11,004 in past-due child support, $20,000 in past-due college expenses for the son, and $30,000 in past-due college expenses for the daughter. On August 25, 2000, in response to the mother’s postjudgment motion, the trial court amended its judgment, increasing the amount the father owed for the son’s past-due college expenses to $30,000.

On January 15, 2002, the mother filed a writ of garnishment against the father’s employer, seeking to collect on the August 25, 2000, judgment. On August 21, 2002, the father filed a Rule 60(b)(4) motion, seeking to set aside the August 25, 2000, judgment as void for lack of personal jurisdiction; the trial court denied his motion. The father timely appealed.

Generally, the grant or denial of relief from a judgment on a Rule 60(b) motion is within the trial court’s discretion and will not be disturbed on appeal absent evidence of an abuse of discretion. Business Realty Inv. Co. v. City of Birmingham, 739 So.2d 523 (Ala.Civ.App.1999). However, when the grant or denial of the Rule 60(b) motion turns on the validity of the underlying judgment, the trial court has no discretion in ruling on the motion and abuse of discretion is not the appropriate standard of review. Bieber v. Bieber, 623 So.2d 1163 (Ala.Civ.App.1992). If the judgment is valid, the motion must be denied and the judgment must stand; if the judgment is void, the motion must be granted and the judgment must be set aside. Id. Rule 60(b)(4) authorizes a trial court, on motion, to relieve a party from a void judgment. A judgment is void if the court that entered the judgment lacked jurisdiction over the subject matter or over one of the parties or if it acted in a manner inconsistent with due process. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655 (Ala.2001).

The question on appeal is whether the trial court’s order authorizing service of process by certified mail and by first-class mail satisfied constitutional due-process requirements where the trial court found that the nonresident father was avoiding personal service of process.

The father argues that he was not served by a process server as required by Rule 4.4(b)(2), Ala. R. Civ. P., and argues that the attempted service by certified mail under Rule 4.2(b)(1)(C) failed when it was returned “unclaimed.” He further argues that Rule 4.4(b) and Rule 4.3(e) limit service by first-class mail to situations where notice by publication is permissible and that notice by publication was not permissible under these facts.

Rule 4.4 applies to service of process in foreign countries. Rule 4.4(a) allows service of process on a person with sufficient minimum contacts with the state, who at the time of service is a nonresident of the state. Rule 4.4(b) provides several methods of service of process in foreign countries, including service by a process server. Rule 4.4(b)(2).

In the present case, two process servers each attempted personal service on the father. The father contends that under Rule 4(c)(1), service of process must be served on the individual or left at the individual’s “dwelling house or usual place of abode” with a person of suitable age and that there is no evidence in the record that he was served by a process server. He argues “to the contrary, [the mother] asked the court to issue an order to allow her to attempt service by certified and first class mail.” We note that there is no discussion in the father’s brief of the underlying facts regarding his avoidance of the two process servers. The two affidavits by the process servers filed with the mother’s motion requesting the use of an alternate means of service support the trial court’s finding that the defendant had avoided personal service.

“Personal service guarantees actual notice of the pendency of a legal action; it thus presents the ideal. circumstance under which to commence legal proceedings against a person, and has traditionally been deemed necessary in actions styled in personam. McDonald v. Mabee, 243 U.S. 90, 92 (1917). Nevertheless, certain less rigorous notice procedures have enjoyed substantial acceptance throughout our legal history; in light of this history and the practical obstacles to providing personal service in every instance, we have allowed judicial proceedings to be prosecuted in some situations on the basis of procedures that do not carry with them the same certainty of actual notice that inheres in personal service.”

Greene v. Lindsey, 456 U.S. 444, 449, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982)(emphasis added).

In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the United States Supreme Court stated that due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” We evaluate the alternate methods of service of process used in this case in light of this standard.

Rule 4.4(b)(5) provides that a defendant residing in a foreign country may be served “as directed by order of the court in which the action is pending.” In the present case, the trial court ordered service by certified mail and service by first-class mail after it was shown that the father was willfully evading service of process. Service by both certified mail and first-class mail to the father’s workplace was reasonably calculated to apprise the father of the pendency of the present action.

We find persuasive Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir.2002). In Rio, the plaintiff, a hotel and casino operator, brought a trademark-infringement suit against a Costa Ri-can Internet business entity. The plaintiff attempted to serve the defendant at a Florida address used by the defendant’s international courier to receive mail. An investigator was unable to locate the foreign address in Costa Rica. Because the plaintiff was unable to serve the defendant by conventional means, the district court ordered alternate means of service of process. Rule 4(f)(3), Fed.R.Civ.P., provides for service of process upon defendants in a foreign country “by other means not prohibited by international agreement as may be directed by the court.”

The United States Court of Appeals for the Ninth Circuit concluded in Rio that court-ordered alternate service of process through regular mail to the attorney who had been consulted by the defendant and to the Florida address of the courier, and by electronic mail (“E-mail”) to the defendant, did not violate due process. All three methods were reasonably calculated to notify the defendant. Service on the courier was proper because the defendant relied upon it to operate its business in the United States. Service on the attorney was appropriate because he had been specifically consulted by the defendant regarding the lawsuit. Service by E-mail was appropriate because the defendant did not have a physical location and relied on the computer to operate its business. See also Rouzaud v. Marek, 166 Ariz. 375, 802 P.2d 1074 (1990)(substituted service of process on the mother’s parents in custody-modification case did not violate due process where the mother had left the country and was attempting to avoid service of process); International Controls Corp. v. Vesco, 598 F.2d 166, 176-78 (2d Cir.1979)(approving service by mail to last known address where individual defendant successfully evaded process servers).

The father argues that service by certified mail failed under Rule 4.2(b)(1)(C) because the mail was returned “unclaimed.” In Vogus v. Angry, 744 So.2d 934 (Ala.Civ.App.1999), the plaintiffs attempted to serve the defendants by certified mail, but the summonses and complaints were eventually returned “unclaimed.” The plaintiffs then moved to serve the defendants by publication, alleging that the defendants were avoiding service of process by refusing to accept proper service via certified mail. This court held that the return of certified mail as unclaimed was not avoidance of service of process and, therefore, did not justify service by an alternate means. Vogus is distinguishable from the present case because, in this case, service by certified mail and first-class mail were the alternate forms of service authorized by the trial court subsequent to the father’s evading persona] service of process.

The father argues that service by publication is not permissible under Rule 4.3 and, therefore, Rule 4.3(e), which limits service of process by first-class mail to situations where a plaintiff in a domestic-relations case cannot afford to pay the cost of publication, prevents service by first-class mail. We agree that service by publication under Rule 4.3 is not permissible. Rule 4.3(b) provides:

“(b) Residence Known; When Publication Appropriate. When the residence of a defendant is known and the action is one in which service by publication is permitted, service of process must first be attempted by one of the methods of service other than publication as is provided by Rule 4.1, if the defendant is a resident of this state, or Rule 4.2, if the defendant is not a resident of this state or is a resident of this state who is absent from the state, or Rule kA, if service on the defendant is to be effected in a foreign country.”

(Emphasis added.) In the present case, service under Rule 4.4 must be attempted before Rule 4.3 would apply. Nevertheless, we disagree with the father that alternate service by first-class mail is limited solely to situations coming under Rule 4.3(e). Nothing in Rule 4.4(b)(5) limits the method of service that can be ordered by the court. Instead, the method of service of process ordered must be reasonably calculated to give notice to the defendant. Mullane, 339 U.S. 306, 70 S.Ct. 652.

The judgment of the trial court is affirmed.

AFFIRMED.

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . Rule 4.4(b)(5) authorizes service on a defendant in a foreign country in any manner “as directed by order of the court in which the action is pending.”

      . Rule 4.4 incorporates a reference to Rule 4.2(a) regarding the bases for jurisdiction beyond state lines.

      . Rule’4(f), Fed.R.Civ.P., is similar to Rule 4.4, Ala. R. Civ. P., regarding service of process on individuals in a foreign country.

      . Rule 4.3(e) "provides an economical alternative to publication in domestic proceedings when the plaintiff is unable to pay the cost of publication.” Committee Comments, on 1977 Complete Revision, ARCP 4.3.

      . We recognize that Rule 4.3(c) addresses avoidance of service and when notice by publication is proper. However, Rule 4.3(c) applies to "resident” defendants and to domestic or foreign corporations having a principal place of business in Alabama which have failed to elect an officer or to appoint agents who can be served. It does not apply in the present case, because the father does not reside in Alabama. We also recognize that Rule 4.3(a)(1) allows substituted service in a domestic-relations case where a defendant’s whereabouts are unknown or where a resident defendant has been absent from the state for more than 30 days. In the present case, it has been shown that the father’s whereabouts are known and that he is not a resident of this state. Therefore, Rule 4.3(a) does not apply.


author: PITTMAN, Judge. YATES, Presiding Judge,

text:
    James N. POOL v. STATE of Alabama.
    2020059.
    Court of Civil Appeals of Alabama.
    July 11, 2003.
    Rehearing Denied Oct. 24, 2003.
    Gary L. Jester of Jester & Jenkins, Florence, for appellant.
    H. Jerome Thompson, special deputy atty. gen., Thompson & Associates, Moul-ton, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R.App. P.; and Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002).

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

The majority relies on Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), in affirming without an opinion the trial court’s partial summary judgment in favor of the State in this inverse-condemnation case. However, I believe that Willis is distinguishable from this case. In Willis, there was a complete absence of any direct physical injury to the plaintiffs property, which precluded his recovery for inverse condemnation under § 23 of the Constitution of Alabama of 1901. In the present case, James Pool’s property was allegedly damaged because of flooding on his property from a recently constructed highway. I do not believe that the supreme court intended to preclude inverse-condemnation actions where there is actual physical damage to property caused by the State’s construction activities. See Willis, 826 So.2d at 122 (Woodall, J., concurring specially). Therefore, I dissent.

      . The State had previously condemned a portion of Pool's property to acquire sufficient

      . The plaintiff in Willis claimed that a parking deck constructed next to his property substantially devalued his property, thus injuring his property, and was a "taking” of property without just compensation. land for the highway.


author: McMILLAN, Presiding Judge.

text:
    James Olen SIMPSON, Jr. v. STATE.
    CR-01-2408.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Roland Lewis Sledge, Valley, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, James Olen Simpson, Jr., was found guilty of leaving the scene of an accident involving injuries or death without providing the information or assistance required under § 32-10-1, Ala.Code 1975. The trial court sentenced him to 20 years’ imprisonment and ordered the sentence to run concurrently with any other sentence that he was serving. The court also ordered him to repay $15,000 that had been paid to the victim by the crime victims compensation fund.

Simpson was indicted on January 30, 2002, and arraigned on March 11, 2002. Because of State budgetary problems, his case was not called for trial until June 19, 2002. Simpson failed to appear on that date, and the trial court found that he had voluntarily waived his right to be present. The State then offered evidence indicating the following: At approximately 7:00 p.m. on August 1, 2001, Jerry Cash and his wife Dana were riding their motorcycles near Lanett. Four or five times, a black automobile drove up behind them and then “back[ed] off.” Shortly after Jerry Cash crossed some railroad tracks, the black automobile struck his motorcycle from behind. Dana Cash saw her husband fall onto the ground from the grille of the black automobile. The car accelerated and dragged Cash approximately 150 feet before it stopped; when it stopped its back tire was on Cash’s chest. The driver then revved the engine and drove away without rendering any assistance or providing a name, address, vehicle registration, or driver’s license. Neither Dana Cash nor Jerry Cash saw the driver of the automobile. Jerry Cash suffered numerous injuries, including deep abrasions, a broken nose, crushed eye sockets, and a dislocated shoulder. Two days after the accident, Jamie Reeves and his wife purchased a black 1989 Chevrolet Beretta automobile from Simpson. He told them that damage on the front of the vehicle had occurred when he drove into a ditch. On August 6, police lieutenant Richard Carter located the Beretta and contacted Simpson. After waiving his Miranda rights, Simpson told Carter that he had hit Jerry Cash accidentally because he did not see Cash’s brake light. He said that he heard something being dragged under his car but he thought that it was the victim’s motorcycle. Simpson said that he hid the Beretta in a field until he sold it to the Reeveses.

I.

Simpson’s first contention is that the trial court abused its discretion by trying him in absentia. He argues that he had the right to be present at the trial of his case and that he did not affirmatively waive this right. He further argues that the court erred in finding an implied waiver based upon his failure to appear because, he says, there was no evidence indicating that his absence was voluntary. Simpson argues that Rule 9.1(b)(l)(ii), Ala. R.Crim. P., allows an implied waiver only when a defendant is present at the beginning of trial and then fails to appear at a later date.

The record reflects that the judge called Simpson’s case for trial on June 19, 2002. He asked if the defense was ready to proceed, and defense counsel responded, “No, sir, Your Honor.” The following discussion then ensued:

“[DEFENSE COUNSEL]: Judge, my client is not here as the Court is well aware. He has a constitutional right to be present at the trial of his case to hear the evidence presented against him. The court arraigned Mr. Simpson several weeks ago and explained to him his constitutional rights. The Court also explained that if he got out of jail he should stay in contact with me.
“Mr. Simpson was in jail until approximately three weeks ago. I found that out by going to the jail, and he was not there. He has not contacted me. I have sent him a letter, two letters in fact, Judge, to show that this was his week to go to trial. I have left four messages at the telephone number that is on his bond for him to call me or contact me and be here this morning. He is not here.
“THE COURT: At arraignment when counsel is appointed, it’s my practice and procedure to explain to each defendant ... that what they say to the lawyer and what the lawyer says to them is between the two of them, and that the worst thing that they could do is lie to their lawyer.
“I also tell then that another terrible thing that they can do is to disappear on the lawyer. So give the lawyer a good address and hopefully a good telephone number where they can be reached.
“If the defendant is in jail I specifically instruct the defendant that if they get out of jail on bond, then the first thing they need to do is contact the lawyer to let them know where they’re going to be.
“Now, I am further informed this morning this defendant’s bondsman has been contacted. I take the position that Mr. Simpson has decided that the best defense is a good offense and that he has chosen not to appear.
“So I will take the position that he has waived his right to be present in this case. We’re going to go ahead and proceed. There was no indication by any of his family members or from him that something has come up where he’s in the hospital or out of state or out of the country receiving the Nobel Prize for whatever reason.
“[DEFENSE COUNSEL]: I have not heard from any of his family members.
“[PROSECUTOR]: One more thing for the record. It’s my recollection at arraignment that the Court notified all persons at that time of the trial dates even though there was a change in the trial schedule due to the money situation that came up. Notices were sent to all persons to be present on June 17.
“[DEFENSE COUNSEL]: That’s very true, Judge. And when the regular scheduled trial term was canceled by the Administrative Office of Courts and by the Supreme Court I notified Mr. Simpson in writing at the jail at that time that that trial term had been canceled and that I would inform him of any new trial date. I did that.”

The court proceeded with the voir dire of the jury. At the end of the questioning, the judge called the attorneys to the bench, and the following occurred:

“[CLERK]: Tab Smith [Simpson’s bondsman] just called. He has talked to Mr. Simpson. He said that he talked to [defense counsel] a couple of weeks ago. I told him it was always up to the attorneys to notify of the trial dates. But he has talked to Mr. Simpson. He’s supposed to be calling him back.
“THE COURT: Mr. Simpson needs to be on the road.”

The court asked defense counsel when he wanted the jury to return, and counsel said “[a]bout 30 minutes.” When the jury returned, Simpson still was not present. The court then proceeded with the trial.

Whether a defendant who is absent at the commencement of trial can be tried in absentia when there is affirmative evidence that he knew of and voluntarily waived his right to be present by failing to appear is a matter of first impression before this court. Rule 9.1(a), Ala. R.Crim. P., provides that a defendant has “the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing.” Section (b) of Rule 9.1 provides, in pertinent part:

“[A] defendant may waive the right to be present at any proceeding in the following manner:
“(i) 'With the consent of the court, by an understanding and voluntary waiver in open court or by a written consent, executed by the defendant and by the defendant’s attorney of record, filed in the case.
“(ii) By the defendant’s absence from any proceeding, upon the court’s finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present.”

The Committee Comments to Rule 9.1(b) state:

“Section (b) allows a defendant to waive the right to be present. The defendant may make an express waiver in open court or may waive the right by voluntary absence from the proceeding. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973)....
‘Waiver of the right to be present must be clear and unequivocal. Waiver must be affirmative and positive in nature and made by the defendant personally. Consent or acquiescence of a defendant to a waiver of the right cannot be presumed but must affirmatively appear from the record. Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955). Thus, section (b) allows the court to find an implied waiver only when the defendant has been present at the commencement of the trial and fails to appear at some later stage of the trial. Such a waiver may not be inferred if the defendant has never appeared at trial, except in the case of a minor misdemeanor, which by definition carries no threat of imprisonment.”

(Emphasis added.)

In Meadows v. State, 644 So.2d 1342 (Ala.Crim.App.1994), this court considered whether a defendant charged with a felony could be tried in absentia if he was not present at the beginning of trial. We held that, in the absence of affirmative evidence indicating that a defendant has voluntarily waived his right to be present, a defendant charged with a felony cannot be tried in absentia if he is not present at the beginning of his trial. In reaching this decision, we relied on the Committee Comments to Rule 9.1(b), quoted above, and on H. Maddox, Alabama Rules of Criminal Procedure (1990), in which former Justice Hugh Maddox concludes that a court cannot infer a waiver of the right to be present unless the defendant was present at the commencement of the trial. We also relied on Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), in which the United States Supreme Court held that the Federal Rules of Criminal Procedure do not permit the trial of a defendant who is not present at the beginning of trial. However, the Crosby Court declined to review Crosby’s claim that his trial in absentia was unconstitutional. Therefore, the states may consider this issue in light of their own statutes and procedural rules.

The Committee Comments to Rule 9.1 and Justice Maddox’s treatise were based on a draft of Rule 9.1 which, like Rule 43, Fed.R.Crim.P., provided that the court may infer waiver of the right to be present if a defendant is absent after his trial has “commenced.” However, Rule 9.1 adopted by the Alabama Supreme Court on May 31, 1990, does not include the “commenced” language. Rule 9.1(b)(ii), Ala. R.Crim. P., currently provides that the court may find that a defendant’s absence was voluntary and that it constituted an understanding and voluntary waiver of his right to be present if the defendant had notice of the time and place of the proceeding and if the defendant was informed of his right to be present. When there is a conflict between a statement found in the committee comments and the plain language of a rule, the rule takes precedence. Ex parte Anderson, 644 So.2d 961 (Ala.1994)(interpreting Rule 27, Ala. R. Civ. P.).

A number of other states have interpreted their rules and statutes so as to make no distinction between a defendant’s absence at the beginning of trial and his absence at some point during the trial. See, e.g., Walker v. State, 338 Md. 253, 658 A.2d 239 (1995)(Maryland rule permits trial court to find waiver of right to be present whenever defendant agrees to or acquiesces in being absent); Commonwealth v. Sullens, 533 Pa. 99, 619 A.2d 1349 (1992)(defendant who is absent without cause at time his trial is scheduled may be tried in absentia); Koons v. State, 771 N.E.2d 685 (Ind.Ct.App.2002)(Indiana rules permit defendant who is absent at commencement of trial to waive right to be present); and State v. Finklea, 147 N.J. 211, 686 A.2d 322 (1996)(onee defendant has been given actual notice of trial date, nonappearance on trial date is deemed waiver of right to be present absent showing of justification).

In the present case, the trial court sent Simpson a notice to appear for trial on May 17. Defense counsel gave Simpson written notice that the trial date had been changed to June 19. Simpson’s bondsman talked to him about the trial date on the day trial began. Simpson failed to call his bondsman back. The trial court had affirmative evidence that Simpson knew about his trial date and his right to be present at trial but decided not to appear. Compare Meadows v. State, supra (in which the defendant knew that his case was in “ready” status, but his counsel had been unable to contact him after the trial date was set). The trial court did not err in finding that Simpson had voluntarily waived his right to be present by failing to appear.

We note that Simpson also failed to appear for sentencing even though the court continued the sentencing hearing until July 31, 2002. Defense counsel told the court that he had written letters to the addresses .Simpson had given him and the bondsman, but he had not been contacted by Simpson or his wife. The trial court stated: “I am of the firm opinion that [Simpson’s] position is that the best defense is a good offense. And he has hit the road. We can’t confirm that anywhere. Apparently his bondsmen have not been able to locate him.” The court then proceeded to sentence the appellant in absentia. Although being tried in absen-tia is certainly by no means a favored practice, neither can a defendant’s intentional avoidance of trial be condoned. Under these facts, the fact that Simpson was notified and was aware of his trial date is clear, as is his disregard for the judicial system.

Simpson has not included any specific argument regarding his absence at sentencing in his appellate brief. In criminal cases in which the death penalty has not been imposed, this court is not obligated to consider issues not presented in briefs on appeal. Rule 45B, Ala. R.App. P. However, we note that, pursuant to Rule 24.1, Ala. R.Crim. P., Simpson had 30 days after his sentence was pronounced to file a motion for a new trial and to offer a reason that he failed to appear. No such motion appears in the record on appeal.

II.

Simpson’s second contention is that the trial court erred in refusing to charge the jury that he had the right to leave the scene of an accident if he believed he was in danger. He argues that he was entitled to the charge because he told Lieutenant Carter that he was scared because the female victim was screaming and calling him a “bastard.” He also argues that the victim was a large person who weighed approximately 460 pounds on the date of the accident.

“ ‘The alleged fear of [the] accused that he might have been assaulted if he had stopped to comply with [§ 32-10-1] does not excuse his failure to comply, where there was not any attempt or threat to assault him or the display of any weapon with which an assault might have been committed.’ ” Isom v. State, 37 Ala.App. 416, 417, 69 So.2d 716, 717 (1954)(quoting 61 C.J.S. Motor Vehicles § 676). In Isom, the court found that an instruction similar to the instruction requested by Simpson was warranted because one of the victims approached Isom’s vehicle and stated, “I will kill you.” Id. Here, the victim testified that he did not move from the ground until the ambulance arrived, and his wife stated that she stayed with the victim. There was no evidence that either of them approached Simpson or threatened him in any way.

A requested jury instruction is properly refused if it is inapplicable to the facts of the case. Bogan v. State, 529 So.2d 1029 (Ala.Crim.App.1988). Here, the judge explained that he was refusing the requested instruction because there was no evidence indicating that Simpson was in danger:

“I don’t think it is reasonable to infer from his statement that he was scared of what might happen to him'. I think he was just scared. It would scare me to do that. I don’t think that it is a defense to this particular charge ... unless there’s some indication that ... [the victim] ... pulled a pistol and ... [began] making threats and that sort of thing.”

The court’s refusal to give the requested charge was proper because there was no evidence indicating that the appellant had been “confronted with danger to [his] life or great bodily harm.” Isom v. State., 37 Ala.App. at 418, 69 So.2d at 718.

III.

Simpson’s third contention is that the trial court abused its discretion by sentencing him to the maximum sentence of 20 years’ imprisonment. He argues that, although his actions were wrong, they did not give rise to a sentence of 20 years. He argues that the court criticized him for failing to appear for trial or sentencing but did not mention that the victim also failed to appear at the sentencing hearing.

When a defendant’s sentence is within statutory limits, this court has no jurisdiction to review the sentence imposed by the trial court. . Wallace v. State, 408 So.2d 171 (Ala.Crim.App.1981). Simpson was found guilty of a Class C felony, and the State offered evidence showing that he had one prior felony conviction. Therefore, the circuit court was required to punish him for a Class B felony offense, § 13A-5-9(a)(1), Ala.Code 1975. The court imposed a 20-year sentence, which was within the 2-year to 20-year range prescribed for a Class B felony. § 13A-5-8, Ala.Code 1975. Therefore, this court cannot review the sentence on appeal.

AFFIRMED.

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

      . The Alabama Rules of Criminal Procedure were adopted May 31, 1990, to be effective January 1, 1991.


text:
    Daniel E. KIRBY v. STATE.
    CR-02-0607.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.

      Thomas Scott Smith, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   McMILLAN, Presiding Judge.

The appellant, Daniel E. Kirby, was found guilty of driving under the influence. The trial court sentenced him to 12 months’ incarceration and then suspended the sentence for 2 years, conditioned upon the appellant’s staying out of trouble, cooperating with the court referral officer, and paying his fines and costs as scheduled. The court also ordered the appellant to complete a substance-abuse program and suspended his driver’s license for six months.

The State’s evidence tended to show that appellant was stopped at a safety checkpoint roadblock in Houston County on May 7, 2000. A Game and Fish Department officer who was participating in the roadblock called Alabama State Trooper Michael Simmons over to the appellant’s vehicle, and Simmons noticed that the appellant had “very red eyes” and that there was the “strong odor of an alcoholic beverage” coming from his person. Simmons asked the appellant to perform several field-sobriety tests. When the appellant failed the tests, Simmons arrested him for driving under the influence. Kirby was transported to the Houston County jail, and a Draeger breath test was performed. The results indicated that the appellant’s blood-alcohol level was .10 percent. Kirby filed a pretrial motion to suppress a statement he made to Trooper Simmons and all of the evidence seized by the officers. He argued that “the roadblock was in violation of the Department of Public Safety rules and regulations” and that the results of the field-sobriety tests, blood-alcohol tests, and any statements were inadmissible because they were “fruits of the poisonous tree.” The trial court summarily denied the motion. The appellant and his wife testified at trial that the appellant had consumed no more than two beers at the time of the stop.

I.

The appellant contends that the trial court erred in failing to suppress the evidence seized as a result of the initial stop because, he says, the law-enforcement officials failed to comply with the regulations concerning checkpoints. He argues that the vehicle-checkpoint sheet completed by Trooper Simmons indicated that the roadblock did not comply with the regulations set by the Alabama Department of Public Safety for use by state troopers because it was not signed by the shift supervisor before the checkpoint roadblock was implemented. He argues that the relevant portion of the procedure manual for the Highway Patrol Division of the Department of Public Safety states in -policy order number 25 that “Highway Patrol Division supervisors will select or approve the time and location of each driver license and vehicle inspection checkpoint prior to the implementation of the checkpoint.”

Trooper Simmons testified that he had been assigned to complete the vehicle-checkpoint report for the May 7, 2000, roadblock. He explained that a sheet is completed after the checkpoint roadblock so that a record is made of all pertinent information, such as time, location, weather conditions, arrests made, and who was involved. He said that one person gathers the information, completes the sheet, signs it, and then submits it to the supervisor for his or her signature. He said that the supervisor’s signature on the vehicle-checkpoint report for the May 7, 2000, roadblock had been added after he submitted the document and that it appeared to be that of his supervisor.

Simmons testified that, before the checkpoint roadblock was implemented, another trooper called him on the radio and informed him that the supervising corporal had approved the checkpoint roadblock. Officers from another State agency, the Game and Fish Department, were present at the scene and cooperated in the checkpoint, which Trooper Simmons says further indicated that the checkpoint had been selected and approved in advance. In Michigan Department of State Police v. Sitz, 496 U.S. 444, 447, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), the United States Supreme Court emphasized that roadblocks should be conducted under written “guidelines setting forth procedures governing checkpoint operations, site selection, and publicity” that left virtually no discretion to the officer in the field. “[S]tops [of vehicles] at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.” Cains v. State, 555 So.2d 290, 293 (Ala.Crim.App.1989). The appellant has not shown that the vehicle checkpoint was unreasonable or that it was improperly conducted in the present case.

II.

The appellant contends that the trial court erred by admitting results from an “unapproved” breath machine into evidence. He argues that the Draeger Aleo-test 7110 MK III-C, the device used in this case, is not listed in the Alabama Administrative Code as an approved device for measuring" blood-alcohol levels. He argues that in City of Tuscaloosa v. Stalnaker, affirmed by unpublished memorandum (No. CR-01-0613, August 23, 2002) 868 So.2d -481 (Ala.Crim.App.2002) (table), the Tuscaloosa Circuit Court suppressed the results of an alcohol breath test performed using the Draeger Alcotest 7110 MK III-C. The circuit court judge in that case stated: “The test in this case being performed on a machine not approved by the Department of Forensic Sciences, evidence of the breath [-test results] are ordered suppressed.”

Section 32-5A-194(a)(l), Ala.Code 1975, provides that, in order to establish a proper predicate for the admission of breath-test results, the State must show that the test was administered in strict compliance with Chapter 370-1-1 of the regulations of the Alabama Department of Forensic Sciences, as contained in the Alabama Administrative Code. The list of the approved testing devices in the Administrative Code includes the “Draeger Alcotest 7110 MK III” but it does not include the “Draeger Alcotest 7110 MK III-C,” the device used in this case. The State called Dale Allen Carpenter, a forensic expert with the implied consent section of the Alabama Department of Forensic Sciences, to testify regarding the Draeger Alcotest 7110 MK III-C. Carpenter said that the 7110 MK III-C is “the same instrument” as the MK III but that, unlike the MK III, the MK III-C has a built-in modem. He explained that the “C” designates the enhanced modem capacity, and it does not affect the analytical capabilities of the machine. Carpenter said that the 7110 MK III-C is listed by the federal government as a “conforming product” and its results are accepted as reliable by the scientific community. Carpenter said that, although the MK III-C is not specifically listed in the Administrative Code, it is “an approved device by the Department of Forensic Sciences.”

In our unpublished memorandum, this court considered the City of Tuscaloosa’s appeal of the circuit court’s order suppressing the breath-test results from the Draeger Alcotest 7110 MK III-C. The circuit court had conducted an evidentiary hearing to determine the admissibility of the test results obtained on the 7110 MK III-C. The City argued that the 7110 MK III-C and the 7110 MK III were the same machine, but the City did not present any evidence at the hearing tending to establish this fact. After the court entered an order suppressing the test results, the City filed a motion to reconsider and submitted an affidavit and supporting exhibits from Dr. Carpenter, the same expert who testified in the present case. He presented essentially the same evidence in Stalnaker as in this case. In Stalnaker, we upheld the circuit' court’s suppression order because it was not clearly erroneous or palpably wrong at the time that it was entered. In our unpublished memorandum in Stalnaker, we also stated:

“We note that our decision in this case should not be interpreted as a finding that the Draeger Alcotest 7110 MK III and the Draeger Alcotest 7110 MK III— C are different testing devices for the purposes of the Administrative Rules of the Department of Forensic Sciences. As discussed above, there were several problems with the City’s efforts to establish either a statutory predicate or a traditional evidentiary predicate. If the only issue before us had been whether Stalnaker’s breath-alcohol test was administered on an approved testing device, and had the City presented during the suppression hearing the evidence presented in support of its motion to reconsider, our decision might well be different. Indeed, based on Dr. Carpenter’s affidavit and supporting exhibits, we question the correctness of the trial court’s ruling. However, based on the evidence presented at the suppression hearing, the trial court’s ruling was not clearly erroneous.”

(Emphasis omitted.)

The evidence of the State’s expert was timely presented to the trial court in the present case. Based on that evidence, the trial court’s decision to admit the breath-test results was not clearly erroneous or palpably wrong. Furthermore, the testimony of the State’s expert witness and Trooper Simmons was sufficient to establish a traditional evidentiary predicate for the admission of the breath-test results. See Ex parte Mayo, 652 So.2d 201 (Ala.1994), and Moore v. State, 442 So.2d 164 (Ala.Crim.App.1983). The trial court’s decision to admit the breath-test results was not clearly erroneous or palpably wrong. Its judgment is affirmed.

AFFIRMED.

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

      . The court ordered the appellant to pay a $600 fine, a $50 crime victims’ assessment, and court costs.

      . The appellant’s Exhibit 1 at trial was a copy of the checkpoint report that had been signed by Trooper Simmons but not by the shift supervisor. The State’s exhibit 3 was a copy of the same report with the supervisor’s signature. Trooper Simmons explained that it was his practice to make a copy of his completed report before he submitted it to the supervisor.

      . Rule 54(d), Ala. R.App. P., provides that an unpublished memorandum "shall have no precedential value and shall not be cited in arguments or briefs and shall not be used in any Court within this state, except for the purpose of establishing the application of the doctrine of the law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar.” We cite this passage merely to show the different circumstances in Stalnaker.


author: BASCHAB, Judge.

text:
    James Clinton HILL, Jr. v. CITY OF FLORENCE.
    CR-02-0978.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2003.
    Tim Case, Florence, for appellant.

      Edward W. Doggett, Florence, for ap-pellee.
   BASCHAB, Judge.

The appellant, James Clinton Hill, Jr., pled guilty in the Florence Municipal Court to driving under the influence (“DUI”), a violation of § 32-5A-191(a)(2), Ala.Code 1975. The municipal court sentenced him to serve a term of 90 days in jail, but suspended the sentence and ordered him to serve 24 months on probation. It also fined him $600. He appealed his conviction to the Lauderdale Circuit Court for a trial de novo, where he again pled guilty to DUI. The circuit court sentenced him to serve a term of 90 days in the Lauderdale County Detention Center, but suspended the sentence for two years and ordered him to serve six months on the Lauderdale County Community Corrections Suspended Work Release Program. It also fined him $600. The appellant did not file any post-judgment motions. This appeal followed.

I.

The appellant argues that the circuit court erroneously allowed the State to proceed under the statutory predicate set forth in § 32-5A-194, Ala.Code 1975, to establish the admissibility of his breath test results. Specifically, he contends that, because the Draeger Alcotest 7110 MK IIIC instrument that was used allegedly was not approved by the Alabama Department of Forensic Sciences (“the ADFS”), the breath test did not comply with the methods approved by the ADFS. Therefore, he asserts that the State should have been required to proceed under general evidentiary principles to establish the admissibility of the breath test. When he entered his guilty plea, he reserved the right to raise this issue on appeal.

During a hearing on this issue, Dale Allen Carpenter, the Technical Director for the Implied Consent Section of the ADFS, testified that the Rules of Alabama Department of Forensic Sciences Chemical Test for Intoxication provide that the In-toxilyzer 5000 and the Draeger Alcotest 7110 MK III are the approved instruments for breath alcohol tests; that the Draeger Alcotest 7110 MK III and the Draeger Alcotest 7110 MK IIIC are the same instrument; that both machines use the same analytical platform; that the only difference between the machines is the addition of a modem to the Draeger Alco-test 7110 MK IIIC; and that the “C” designation stands for communications. He also testified that one of the ADFS’s specifications for the purchase of an instrument was that the instrument be on the products list approved by the National Highway Traffic Safety Administration (“the NHTSA”). He further testified that, when an instrument manufacturer changes an instrument, it must submit documentation to the NHTSA so the NHTSA can determine whether it needs to retest the instrument; that, if the change to the instrument is not analytical in nature, it will adopt the instrument without retesting it; that, with regard to the Draeger Alcotest 7110 MK IIIC, the NHTSA determined that the addition of the modem was not analytical in nature; and that the NHTSA adopted the Draeger Alcotest 7110 MK IIIC without retesting it.

Carpenter testified that the ADFS’s definition of an instrument is a device that records, measures, or controls; that a modem does not record, measure, or control; that the addition of a modem does not affect the definition of an instrument; that the ADFS determined that the change between the Draeger Alcotest 7110 MK III and the Draeger Alcotest 7110 MK IIIC was innocuous and that it did not change the analytical capabilities of the instrument; and that the ADFS did not add the designation “C” in its rules so that the rules would be flexible enough to allow for future non-analytical variations to the Draeger Alcotest 7110 MK III without necessitating a change to the rules and regulations. He also testified that the ADFS had analyzed the Draeger Acotest 7110 MK III machines; that it never purchased any Draeger Acotest 7110 MK III machines; that all of the machines purchased in Aabama were Draeger Acotest 7110 MK IIIC; that instrument operators would have been trained on Draeger Aco-test 7110 MK IIIC machines; that the Draeger Acotest 7110 MK IIIC is the functional equivalent of the Draeger Aco-test 7110 MK III; and that there would not be a difference between training operators on the 7110 MK III and the 7110 MK IIIC. He further testified that the ADFS felt that it properly designated the instrument as the 7110 MK III because that is the analytical platform that they approved and because the difference in the “C” version was not analytical in nature.

Finally, Carpenter testified that the ADFS uses the modem on the Draeger Acotest 7110 MK IIIC to telephone the instrument and download data that has been collected by the instrument; that it uses that data to review the accuracy of the instrument; that a Draeger Acotest 7110 MK III would collect the same data; that the only difference would be that someone would have to physically go to the location of the Draeger Acotest 7110 MK III instrument to download the data; that the modem is not active unless the ADFS telephones the instrument; that the modem is not critical to the analytical function of the machine; and that the modem is critical only to the administrative process of retrieving data from the machine in a timely fashion.

Based on the evidence presented, we conclude that the Draeger Acotest 7110 MK III and the Draeger Acotest 7110 MK IIIC are the same instrument for the purpose of analyzing breath samples. Therefore, the circuit court properly allowed the State to establish the admissibility of the breath test results pursuant to the statutory predicate set forth in § 32-5A-194, Aa. Code 1975.

II.

The appellant also argues that the circuit court erroneously admitted into evidence the Florence Municipal Ordinance that designates the Draeger Acotest 7110 MK III as the machine to be used for breath test analyses. However, he did not reserve the right to raise this argument on appeal. Therefore, it is not properly before this court. See Rule 14.4(a)(l)(viii), Aa. R.Crim. P.

For the above-stated reasons, we affirm the circuit court’s judgment.

AFFIRMED.

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

      . The circuit court adopted the evidence about this issue that had been presented in another case and its ruling in that other case.

      . In fact, during the guilty plea proceedings, defense counsel stated that he had previously introduced a copy of that ordinance and requested that that ordinance be made a part of the record.


author: PER CURIAM.

text:
    Kevin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3301.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    Kevin Williams, Sneads, pro se.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Salser v. State, 582 So.2d 12 (Fla. 5th DCA 1991),rev. dismissed, 613 So.2d 471 (Fla.1993); see also Bourjolly v. State, 623 So.2d 870 (Fla.3d DCA 1993); Alexander v. State, 553 So.2d 312 (Fla. 1st DCA 1989).

PETERSON, THOMPSON and PALMER, JJ., concur.