author: CRAWLEY, Judge.

text:
    Mary Ellen EASON v. Robert P. BYNON, Jr.
    2001136.
    Court of Civil Appeals of Alabama.
    May 3, 2002.
    Rehearing Denied July 12, 2002.
    Certiorari Denied Sept. 13, 2002 Alabama Supreme Court 1012069.

      Calvin M. Howard, Birmingham, for appellant.
    Braxton Wagnon of Strickland, Smith & Wagnon, Birmingham; and Jerome Tucker III, Birmingham, for appellee.
   CRAWLEY, Judge.

This is the second time the parties have been before this court. In Eason v. Bynon, 781 So.2d 238 (Ala.Civ.App.2000) (“Eason I”), this court outlined the facts as follows:

“Mary Ellen Eason lives in the home place that she, her brother Leo, and her sister Elizabeth Eason Hardiman inherited from their parents. Ms. Eason is 75 years old; she has a ninth-grade education. Her brother Leo (who is now deceased) had a third-grade education and could not read or write.
“In 1988, Leo was charged with murder. [Robert P. Bynon, Jr.], a lawyer, agreed with Leo to defend him in the criminal prosecution for a fee of $25,000. Leo agreed to sign a $25,000 note, to be secured by a real-estate mortgage on the home place he owned with his sisters. At trial, Bynon introduced a note and a mortgage, dated December 7, 1988, both purportedly signed by Mary Ellen Eason and Leo Eason and acknowledged by Shirley A. Franklin, a notary public.
“Ms. Eason testified that, on December 7, 1988, Bynon came to her home and drove her to the county jail, telling her that they were going to ‘get [her brother] out on bond.’ According to Ms. Eason, four people were present on that occasion: Ms. Eason; her brother Leo; Bynon; and the bail bondsman, a Mr. King. She testified that Bynon handed the bondsman $1,000 and then had her and her brother sign some papers that Bynon said were ‘bond papers.’ Ms. Eason testified that Bynon did not tell her she was signing a note and a mortgage. She said that she ‘didn’t even know what a mortgage note [was].’ She admitted that she did not read the documents before signing them. At trial, Ms. Eason was shown a copy of the note and the mortgage, and she acknowledged that the signatures were hers. However, she denied knowing the contents of the documents, denied signing them before a notary, and denied talking to anyone named ‘Shirley A. Franklin.’
“Bynon testified that Shirley A. Franklin was his secretary in 1988, that she was a notary, and that her acknowledgment appears on the note and the mortgage. When he was asked whether Ms. Franklin was present at the jail when the mortgage was executed, Bynon replied, ‘I don’t recall where that was signed.’ Bynon also did not recall who was present at the signing of the documents. When confronted with Ms. Ea-son’s testimony that she had ‘never signed any documents before a notary public,’ Bynon responded that he had ‘never lied to anybody while [he had] been practicing law.’ ”

781 So.2d at 239-40.

In Eason I, Bynon had sued Eason, seeking, among other things, a reformation of the mortgage to correct the legal description of the real property in which Ms. Eason, her brother, and her sister had an interest. Ms. Eason asserted the defense that the mortgage was invalid because of Bynon’s fraud and the notary’s violation of her legal duty. Ms. Eason demanded a jury trial. The trial court struck the jury demand and eventually entered a judgment reforming the mortgage.

Ms. Eason appealed; this court reversed, concluding that the trial court had erred by striking the jury demand. We stated that, although Bynon had requested equitable relief, for which a jury trial was not available, Ms. Eason had asserted a legal defense for which she had the right to a trial by jury. We held: “[T]he resolution of the equitable issue (whether the trial court should reform the legal description in the mortgage) was necessarily dependent on the resolution of the legal issue (whether the mortgage was valid).” 781 So.2d at 241.

On March 26, 2001, after our reversal, Ms. Eason moved for a summary judgment. She supported the motion with an affidavit, alleging facts tending to show that the mortgage made the basis of By-non’s action was invalid. Bynon responded and attached an affidavit asserting that, with respect to Ms. Eason’s interest in the property, there were genuine issues of material fact as to the validity of the mortgage, but with respect to the interest of Ms. Eason’s sister, Elizabeth Eason Har-diman, and her brother, Leo Eason, Bynon was, he said, entitled to a judgment on the pleadings because neither Elizabeth nor Leo had demanded a jury trial or had appealed from the circuit court’s judgment reforming the mortgage.

On April 6, the circuit court denied Ms. Eason’s motion for a summary judgment and granted Bynon’s motion for a judgment on the pleadings. On April 16, Ms. Eason moved for leave to amend her original pleadings to assert a counterclaim against Bynon. The proposed counterclaim alleged fraud and sought $100,000 in compensatory damages and $100,000 in punitive damages. On April 26, Bynon moved to dismiss his claim against Ms. Eason. On April 30, the circuit court denied Ms. Eason’s motion for leave to amend her pleading. On May 4, Ms. Ea-son filed a postjudgment motion, asserting that the court had erred by disallowing her proposed counterclaim.

Also on May 4, counsel entered an appearance for Ms. Eason, as executrix of the estate of Leo Eason, deceased, and moved to alter, amend, or vacate the judgment, asserting that Bynon’s action against Leo should be dismissed, pursuant to Rule 25(a)(1), Ala. R. Civ. P. The executrix’s motion alleged that, on July 11, 2000, she had filed on the record a suggestion of Leo’s death, and that there had been no motion to substitute the proper party within six months of the suggestion of death; therefore, she maintained, Bynon’s action against Leo should be dismissed. The executrix also argued that the circuit court had erroneously reformed the mortgage because, she claimed, it was invalid. The circuit court denied the executrix’s motion on July 12, 2001. From the denial of her postjudgment motion, Ms. Eason appealed to this court. This court transferred the appeal to the Alabama Supreme Court because the amount claimed in Ms. Eason’s counterclaim exceeded our jurisdictional limit. See § 12-3-10, Ala.Code 1975. The supreme court then transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, Ms. Eason raises three issues. First, she argues that the circuit court erred by reforming the mortgage with respect to the interest of her brother Leo. She contends that the reformation was an attempt to circumvent this court’s holding in Eason I. In Eason I, we held that Ms. Eason was entitled to a jury trial on her defense that the mortgage was invalid. Because her brother Leo did not demand a jury trial or appeal the circuit court’s judgment reforming the mortgage, this court’s holding in Eason I had no application to Leo’s interest in the property-

Next, Ms. Eason argues that the circuit court erred by refusing to dismiss Bynon’s action against Leo pursuant to Rule 25(a)(1), Ala. R. Civ. P. That rule states:

“If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for service of the motion, the action shall in the absence of a showing of excusable neglect be dismissed as to the deceased party.”

Ms. Eason claims (1) that in her brief to this court on July 11, 2000, she suggested Leo’s death upon the record and served the suggestion on opposing counsel and (2) that there was no motion to substitute the proper party within six months of the suggestion of death. Ms. Eason’s mention of her brother’s death in her appellate brief, however, does not constitute a formal suggestion of death. See Hawes v. Johnson & Johnson, 940 F.Supp. 697, 699-700 (D.N.J.1996) (holding that “[t]he mere reference to the death of [a plaintiff] in plaintiffs’ reply brief submitted in support of their class certification motion is insufficient to trigger the commencement of the ... time limit [for substituting parties]”). See generally Champ Lyons, Jr., 1 Alabama Rules of Civil Procedure Annotated 525 (3d ed.1996) (stating that “[p]assing reference to the death of a party in a pleading or motion does not suffice to start the time period for substitution. A formal suggestion of death is necessary.”). See Kissic v. Liberty Nat’l Life Ins. Co., 641 So.2d 250, 251 (Ala.1994) (holding that passing references, in a cross-claim and in a motion for joinder, to the death of the plaintiff were insufficient “to constitute a suggestion of death on the record, so as to commence the running of the six-month period for substituting a proper party under Rule 25”); Winter v. Cox, 553 So.2d 60 (Ala.1989) (holding that a notation on a case action summary sheet was insufficient as a suggestion of death). In Kissic, the Alabama Supreme Court explained the reason for requiring a formal suggestion of death:

“It is quite simple under Rule 25 to start the running of the time period for substituting a proper party for a deceased party by filing a clearly designated ‘statement of the fact of death’ or ‘suggestion of death’ and by serving that statement in accordance with the requirements of the rule. Rule 1, [Ala.] R.Civ.P., states that our rules of civil procedure should be construed so as to secure the just determination of every action. It is not the purpose of our rules to foreclose or bar potentially meritorious claims. Any construction of Rule 25 on our part that could, under certain circumstances, create a trap for an unwary attorney would surely violate the spirit, if not the letter, of our rules of civil procedure. Therefore, we conclude, as the federal courts have, that requiring adherence to the simple procedure contemplated by Rule 25(a)(1) is preferable to embarking on a case-by-case review to determine under what circumstances the filing and service of a document during litigation would be sufficient to start the running of the six-month limitations period.”

641 So.2d at 252 (citation omitted). Based on the foregoing authorities, we conclude that Ms. Eason’s mention, in an appellate brief to this court, that her brother had died, did not qualify as a “suggestion of death” under Rule 25, Ala. R. Civ. P.

Last, Ms. Eason argues that the circuit court abused its discretion by denying her motion to allow a counterclaim pursuant to Rule 13(f), Ala. R. Civ. P. That rule provides:

“When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.”

Ms. Eason argues that, because she was not represented by counsel when she filed her answer to Bynon’s complaint, and because she had no idea that she could or should assert a counterclaim based on the same facts as her defense alleging fraud, the “oversight, inadvertence, or excusable neglect” provisions of Rule 13(f) apply. She insists that “justice requires” that she, as a pro se litigant, be allowed to set up the omitted counterclaim.

This court and the Alabama Supreme Court have consistently held that it is within the trial court’s discretion whether to allow an omitted counterclaim under Rule 13(f)- See, e.g., Hart v. Fid. & Deposit Co., 494 So.2d 52 (Ala.1986); Wells v. Geneva County Bd. of Educ., 646 So.2d 98 (Ala.Civ.App.1994). With very few exceptions, our appellate courts have generally affirmed the trial court’s exercise of discretion; whether the trial court granted or denied relief to a counterclaimant, we have usually upheld its action. See, e.g., Brad’s Indus., Inc. v. Coast Bank, 468 So.2d 129 (Ala.1985) (affirming the denial of relief); Wells, 646 So.2d at 100 (affirming the grant of relief).

Ms. Eason cites McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977), for the proposition that a trial court’s discretion in refusing an amendment is not unbridled and its judgment may be reversed. The relevant events in McElrath, however, took place before the Alabama Rules of Civil Procedure were adopted and that case did not involve an amendment to set up a compulsory counterclaim. Moreover, our supreme court has distinguished McElrath in a more recent case, emphasizing that, in McElrath, “ ‘there [was] no evidence that the amendment could have been made earlier.’ ” Burkett v. American Gen. Fin., Inc., 607 So.2d 138, 141 (Ala.1992) (quoting McElrath, 351 So.2d at 565).

In Brad’s Industries, our supreme court affirmed the trial court’s disallowance of a counterclaim when almost three years had passed between the time that the defendant filed its answer and the time it attempted to raise a counterclaim because, it held, “Brad’s had claimed the existence of ... the facts in support of its claims long before the filing of the counterclaim [and] Brad’s offerfed] no logical or credible excuse for the delay in filing.” 468 So.2d at 131. In Wells, this court affirmed the trial court’s allowance of a counterclaim raised by the defendants two and one-half years after they had filed their answer.

It is undisputed that Ms. Eason’s proposed counterclaim was based upon the same facts as her answer and that she “claimed the existence of ... the facts in support of [her] claim[] long before the filing of the counterclaim.” See Brad’s Indus., 468 So.2d at 131. The only excuse she offers for her delay in filing the proposed counterclaim is the fact that she was unrepresented by counsel when she answered Bynon’s complaint.

The record demonstrates that Ms. Ea-son, acting pro se, answered the complaint on January 15, 1999. On May 25, 1999, however, an attorney with Legal Services of Metro Birmingham, Inc., entered an appearance for Ms. Eason and filed an amended answer, asserting a statute-of-limitations defense. No counterclaim was asserted. The record shows that, three days later on May 28, 1999, the Legal Services attorney moved for leave to withdraw, and the circuit court granted the motion the same day.

Although Ms. Eason was represented by an attorney for only a short time, the record makes it clear that the attorney had examined the pleadings and discovered what, he thought, was an oversight in his chent’s pro se answer, namely: the failure to assert what he considered was a valid affirmative defense. The attorney then amended Ms. Eason’s answer to reflect that defense. We conclude that a counterclaim based on the facts alleged in Ms. Eason’s pro se answer could also have been asserted at that time. Cf. United States v. Boyce, 148 F.Supp.2d 1069, 1078-79 (S.D.Cal.2001) (stating “[t]hat the [defendants] were ... pro se when they filed their original answer is not persuasive. As recently as July 2000, the [defendants] moved for and were granted leave to amend their answer. Their briefs are devoid of any explanation as to why the ... counterclaim could not have been brought at that time”).

Nevertheless, even if we do not consider that Ms. Eason was, for a short time, represented by counsel and that counsel undertook to amend Ms. Eason’s pro se answer, we would hold that Ms. Eason had failed to present an excuse for the late filing of her counterclaim.

“A pro se litigant is not exempt from procedural rules merely because of an unfamiliarity with them. See Asam v. Devereaux, 686 So.2d 1222 (Ala.Civ.App.1996). ‘[T]he rules governing the operation of the courts of this state are no more forgiving to a pro se litigant than to one represented by counsel.’ Id. at 1228.”

Walker v. Blackwell, 800 So.2d 582, 588 (Ala.2001). We conclude that the circuit court did not abuse its discretion by disallowing the proposed counterclaim.

The judgment of the circuit court is affirmed.

AFFIRMED.

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

      . No appeal was filed on behalf of Ms. Eason in her capacity as executrix of Leo’s estate.


source: Caselaw Access Project

license: Public Domain

text:
    Michelle Rogers HEADRICK v. Jarrod Ward HEADRICK.
    2001196.
    Court of Civil Appeals of Alabama.
    June 14, 2002.
    Certiorari Denied Sept. 13, 2002 Alabama Supreme Court 1011834.

      Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.
    S. Sanford Holliday, Roanoke, for appel-lee.
   CRAWLEY, Judge.

Michelle Rogers Headrick (“the mother”) and Jarrod Ward Headrick (“the father”) were married in 1996. They had one child, a son, who was three years old at the time the parties separated in October 2000. In November, the mother and father executed a separation agreement; that agreement was later incorporated into a divorce judgment entered on December 29, 2000. That judgment, pursuant to the agreement, awarded sole physical custody of the child to the mother while vesting the parties with joint legal custody. On January 26, 2001, the father filed what he styled as a “motion to set aside” the divorce judgment. That motion stated as grounds that the custody agreement entered into was not in the best interest of the child and that the father wished to withdraw his consent to the November agreement. The parties, at a hearing on the motion in March 2001, agreed that the divorce judgment would remain final and effective as to all issues except the issues of child custody, visitation, and child support. Those issues were set for a hearing in May. After that hearing, the trial court awarded custody of the child to the father. The mother appeals.

The mother first argues that the trial court lost its jurisdiction to change custody of the child when it failed to rule on the merits of the father’s motion within 90 days of its filing. See Rule 59.1, Ala. R. Civ. P.; Ex parte Johnson, 715 So.2d 783 (Ala.1998). She specifically argues that the trial court must rule on the merits of the motion, not merely assent to reconsider its judgment, within the 90 day period. See Farmer v. Jackson, 553 So.2d 550 (Ala.1989). Although she correctly states the law concerning postjudgment-motion practice, her argument fails because the trial court did grant the motion, and thus considered its merits, within the 90-day period when it set aside the judgment on March 16 insofar as it related to the custody, visitation, and child support issues. The mother appears to argue that the trial court was required to have modified the judgment to award custody to the father within the 90-day period. However, it could not have done so without first having an evidentiary hearing. The March 16 order granted the father the relief he requested, the setting aside of the original custody judgment, which had been based on the parties’ agreement. The fact that the trial court’s order also set an evidentia-ry hearing on the custody, visitation, and support issues does not impact the fact that the motion was ruled upon on the merits.

The mother also argues that the father failed to prove any ground under Rule 59 that would entitle him to have the divorce judgment set aside. Even if the father had failed to prove grounds upon which the trial court could set aside the divorce judgment, we could not reverse the trial court’s judgment. According to the March 16 order and statements made at the May hearing by the mother’s attorney, the parties agreed to have the judgment set aside and to have those issues set for trial. See generally State v. Coheley, 549 So.2d 483 (Ala.1989) (affirming a judgment based on the principle that a party cannot appeal from a judgment to which he has consented).

Finally, the mother argues that the trial court’s custody judgment is not supported by the evidence. Because this was an initial custody determination, where the parties are on equal footing and the trial court must base its decision on what it determines would be in the best interest of the child, Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994), our review is very limited. Smith v. Smith, 448 So.2d 381, 383 (Ala.Civ.App.1984) (stating that an appellate court should disturb the trial court’s custody judgment only in cases involving a clear and palpable abuse of discretion).

Although the mother vehemently argues that the evidence established that she was the primary caretaker for the child for the entire three years of his young life, and although the evidence does suggest that the father spent a large portion of his free time pursuing his hobbies of fishing and hunting, we cannot reverse the trial court’s decision in this case even if we may have made a different decision. See Ethridge v. Ethridge, 360 So.2d 1005, 1008 (Ala.Civ.App.1978). The mother did commit adultery, and she became pregnant with her paramour’s child before she separated from the father. See Bates v. Bates, 678 So.2d 1160, 1162 (Ala.Civ.App.1996) (stating that a trial court can consider, among other things, a parent’s character when determining the issue of custody). She and her new husband have relocated to Tennessee, where she admittedly has no family, other than her new husband, to help her. The father has family members nearby who testified concerning their availability and desire to help the father raise the child and to provide child care in the event day care is unavailable or the child is sick. The mother has failed to convince us that the trial court clearly and palpably abused its discretion by awarding custody to the father.

AFFIRMED.

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


author: CRAWLEY, Judge. MURDOCK, Judge, CRAWLEY, Judge.

text:
    S.A.B. v. MOBILE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2001149.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Opinion on Return to Remand Sept. 13, 2002.

      Patricia W. Hall, Mobile, for appellant.
    J. Coleman Campbell, Lynn S. Merrill, and D. John Harrison, asst, attys. gen., Department of Human Resources, for ap-pellee.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued on April 5, 2002, is withdrawn, and the following is substituted therefor.

In July 2001, the juvenile court terminated the parental rights of S.R., the mother, and S.A.B., the alleged father, to their four-year-old daughter, D.B. The alleged father appeals. We remand for additional findings by the juvenile court.

In April 2000, the Mobile County Department of Human Resources (“DHR”) was given custody of two-year-old D.B. following a suicide attempt by the mother. DHR’s first contact with S.A.B., the alleged father, was one month later, when social workers visited S.A.B. on May 9 and inquired whether he would submit to a blood test to determine paternity of the child. S.A.B. replied that he had been planning to take a paternity test, but that he had not had the time.

DHR’s next contact with S.A.B. was on September 8, 2000. On that occasion, S.A.B. accompanied S.R., the mother, to the DHR office. When a DHR caseworker asked whether S.A.B. had taken a paternity test yet, S.A.B. replied that he did not need to take a test because he knew he was the child’s father. DHR did not hear from S.A.B. again. S.A.B. did not request further visitation with D.B. or pay anything toward D.B.’s support. DHR made no further effort to get in touch with S.A.B. Then, six months later, on March 7, 2001, DHR moved to terminate the parental rights of both the mother and S.A.B.

The juvenile court appointed counsel for S.A.B. Two weeks before the date set for a hearing on the petition to terminate parental rights, counsel moved for a blood test to determine paternity. When S.A.B. failed to appear at the hearing, his counsel moved for a continuance. The juvenile court denied the motion for a blood test and the motion for a continuance.

After finding D.B. dependent, the court’s judgment states, in pertinent part:

“[3]a. The natural parents are not able, or in a position, to properly provide for the children’s well-being, maintenance, and support.
“b. The children are without proper parents able to provide for their support, training and education.
“c. The natural and legal parents of the children are unable or unwilling to discharge their responsibilities to and for said children; and
“d. The alleged father of [D.B.], [S.A.B.], although expressing his desire and wishes to take custody of and exercise parental duties for said child, has not presented credible evidence of his ability to do so and, by his failure to appear in Court and otherwise take the necessary steps to establish paternity or take a role in parenting, did demonstrate to this Court that he is unable to discharge responsibilities to and for the child as a parent.
“4. The Court did further find from the evidence that the conduct or condition of the parents is such as to render them unable to properly care for the children, and that such conduct or condition is unlikely to change in the foreseeable future.
“6. The Court further finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents have failed to make a reasonable effort to adjust their circumstances to meet the needs of the children or to maintain the family unit intact; and that the Department of Human Resources has exercised all reasonable efforts to prevent removal, to promote reunification, and to prevent and avoid termination of parental rights”

(Emphasis added.)

The emphasized portion of the judgment tracks § 26-18-7(a)(6), Ala.Code 1975, which requires the juvenile court to consider whether reasonable efforts by DHR leading toward the rehabilitation of the parents have failed. See Ezekiel v. State Dep’t of Human Res., 562 So.2d 524, 525 (Ala.Civ.App.1990). At the hearing, the DHR caseworker testified that, other than the two contacts with S.A.B. in May and September 2000, she had had no other communication with S.A.B. She acknowledged that DHR had offered S.A.B. no services after his admission of paternity. In light of DHR’s acknowledgment that it had offered S.A.B. no services and had made no efforts “to prevent removal, to promote reunification, and to ... avoid [the] termination of parental rights” of S.A.B., the juvenile court’s contrary finding is unsupported by the evidence. Compare D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584 (Ala.Civ.App.1999) (holding that, in the absence of any proof tending to show that DHR attempted to rehabilitate the father, the juvenile court’s judgment tracking the language of § 26-18-7(a)(6) was unsupported by the evidence).

DHR argues, however, that pursuant to §§ 26-18-7(a)(l) and 26-18-7(c), Ala.Code 1975, it was not required to prove that it made “reasonable efforts ... leading toward the rehabilitation of [S.A.B.]” because, it claims, S.A.B. had abandoned the child. Section 26-18-7(a)(l) provides, in pertinent part:

“In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.”

Section 26-18-7(c) provides:

“In any cases where the parents have abandoned a child and such abandonment continues for a period of four months next preceding the filing of the petition, such facts shall constitute a re-buttable presumption that the parents are unable or unwilling to act as parents.”

Sections 26-18-7(a)(l) and 26-18-7(e) state an exception to the reasonable-efforts requirement DHR must meet in termination cases. According to those subsections, if the parent has abandoned his or her child, DHR is relieved of the requirement of establishing that it made reasonable efforts to rehabilitate a parent. Section 26-18-3(1) defines “abandonment” as follows:

“ABANDONMENT. A voluntary and intentional relinquishment of the custody of a child by a parent, or a withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.”

In the present case, the evidence might support a finding that S.A.B. had abandoned his child. S.A.B. neither supported nor requested visitation with D.B. during the six-month period between September 8, 2000, and March 7, 2001. However, the trial court apparently did not rely on the abandonment exception to the reasonable-efforts requirement because its judgment recites satisfaction of the reasonable-efforts requirement. DHR contends that we must affirm the juvenile court’s judgment because (1) according to Ex parte State Department of Human Resources, 624 So.2d 589, 593 (Ala.1993), a juvenile court is not required to make specific written findings in a termination-of-parental-rights case, (2) this court must presume that the juvenile court made those findings necessary to uphold its judgment, and (3) the evidence would support a finding of abandonment.

In the absence of the recitation in the juvenile court’s judgment that the reasonable-efforts requirement had been satisfied in this case, we could affirm the judgment. However, because the court specifically determined that DHR had “exercised all reasonable efforts to prevent removal, to promote reunification, and to prevent and avoid termination of parental rights” we are left in doubt as to the import of the juvenile court’s order. As it now reads, the order could be construed in either of two ways: (1) that S.A.B. had not abandoned the child but that DHR had made the required effort to rehabilitate him, or (2) that the trial court had simply overlooked the abandonment exception to the reasonable-efforts requirement. We, therefore, remand this cause to the juvenile court with instructions to make a specific finding as to whether S.A.B. abandoned the child. If the court determines that an abandonment occurred, it need not determine whether DHR engaged in any rehabilitative efforts. See §§ 26-18-7(a)(1) and 26-18-7(c). If, on the other hand, the court determines that S.A.B. did not abandon the child, then the court must make a further determination regarding DHR’s efforts to rehabilitate S.A.B. The juvenile court shall make a return to remand within 28 days of the release of this opinion.

APPLICATION GRANTED; OPINION OF APRIL 5, 2002, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.

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

THOMPSON and MURDOCK, JJ„ concur in the result.

MURDOCK, Judge,

concurring in the result.

The majority opinion correctly notes that § 26 — 18—7(c), Aa.Code.1975, provides a rebuttable presumption that parents are unable or unwilling to act as such if they have abandoned their child continuously for a period of four months next preceding the filing of a petition to terminate their parental rights. However, the abandonment exception in § 26-18-7(a)(l) to the reasonable-efforts requirement that DHR normally must meet in termination cases is not limited to abandonments that occur within this four-month period.

While the majority opinion correctly remands for consideration of whether there has been an abandonment in this case, in doing so, it takes particular note of the fact that S.A.B. neither supported nor requested visitation vñth D.B. during the six-month period between September 8, 2000, and the date of the filing of the petition in this case, March 7, 2001. I write separately to note that, based on the record before us, I see no reason for the trial court’s consideration of the issue of abandonment to be limited on remand to the period after September 8, 2000.

THOMPSON, J., concurs.

On Return to Remand

CRAWLEY, Judge.

Pursuant to this court’s opinion of June 28, 2002, remanding this case, the juvenile court on remand found that S.A.B. had abandoned the child by failing to visit or contact the child and by failing to appear in court — either at the termination hearing or at the hearing on remand. The court concluded, therefore, that DHR had no obligation to offer services to S.A.B. in an effort to promote his unification with the child or to prevent the termination of his parental rights. The court further found that there were no viable alternatives to termination of parental rights. The findings are supported by the record, and the order on remand complies with § 26-18-7, Ala.Code 1975. The judgment of the juvenile court is affirmed.

AFFIRMED.

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

      . DHR also moved to terminate the mother’s parental rights as to two other children; S.A.B. does not allege that he is the father of those children. Because the facts as to those children are not relevant to this appeal, we omit them here.


author: PATTERSON, Retired Appellate Judge.

text:
    Anthony MILES v. STATE.
    CR-99-2547.
    Court of Criminal Appeals of Alabama.
    March 2, 2001.

      Anthony Miles, pro se.
    William H. Pryor, Jr., atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   PATTERSON, Retired Appellate Judge.

Anthony Miles appeals from the circuit court’s dismissal of his posteonviction petition, Ala.R.Crim.P. 32. In that petition, he contested the validity of his 1997 conviction for the capital murder of an employee of a Kentucky Fried Chicken restaurant (“KFC”) during a robbery. He was sentenced to life imprisonment without the possibility of parole. His conviction and sentence were affirmed on appeal. Miles v. State, 715 So.2d 913 (Ala.Crim.App.1997).

The attorney general asserts that the circuit court correctly found that the issues presented in Miles’s Rule 32 petition were barred from the circuit court’s consideration because the two-year limitations period had expired. See Rule 32.2(e). He correctly points out that the certificate of final judgment was issued by this court on May 22, 1998, and that Miles’s Rule 32 petition was filed with the circuit clerk on May 23, 2000. However, Miles, in his verified petition, asserted that he mailed his petition on May 22, 2000. (His certificate of service also reflects this date.) Alabama follows the rule that an incarcerated petitioner acting pro se “files” a post-conviction petition when he hands it over to prison authorities for mailing. Lucas v. State, 722 So.2d 822 (Ala.Crim.App.1998). Applying this rule, we find that Miles filed his petition within two years after the issuance of the certificate of judgment. Miles’s claims are not barred from the circuit court’s consideration by Rule 32.2(c).

Thus, we turn to the claims in Miles’s petition. Miles alleged that his trial counsel was ineffective for failing to adequately object to, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the prosecutor’s use of peremptory strikes to eliminate nine black veniremembers. He argued that the prosecutor struck three black females because they had had prior misdemeanor convictions, but that he did not strike any similarly situated white female. Miles also asserted that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness in this regard. Miles further alleged that trial counsel was ineffective for failing to raise, in a motion for a new trial, the trial court’s denial of a motion for a mistrial based on the prosecution’s withholding of exculpatory evidence. Miles also asserted that appellate counsel was ineffective for failing to argue the trial counsel’s ineffectiveness in this regard and, also, for failing to argue that the trial court had abused its discretion in not making a clear ruling on the mistrial motion, in disallowing the exculpatory testimony, and in not granting the mistrial. Miles also alleged that trial counsel was ineffective for failing to move to exclude, pursuant to the Fourth and Fifth Amendments, testimony of Miles’s conversation in his residence with Rickey Braxton, who at that time was in jail for the robbery of, and a shooting at, a fast-food restaurant. He alleged that his incriminating statements, transmitted to a law enforcement officer, were deliberately elicited by Braxton. Finally, Miles alleged that appellate counsel was ineffective for failing to assert trial counsel’s alleged ineffectiveness in this regard.

In its order dismissing Miles’s petition, the circuit court set out the applicable law, declared that Miles failed to meet the burden of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and implied that trial counsel’s actions or counsel’s failure to act was strategic. The court addressed specifically only the claim that trial counsel had failed to present an adequate Batson claim: it found that Miles had not shown that the circumstances presented a prima facie case of purposeful discrimination. (Yet Miles alleged that the prosecutor had not struck whites similarly situated to the three black females he struck based on their prior misdemeanor convictions.) The State, in its response to Miles’s petition, did not specifically address each claim, but asserted generally that Miles’s claims were not supported by sufficient facts. The record before this court does not present sufficient facts for this court to conclude that the circuit court’s general findings were correct. Thus, we remand for further consideration of Miles’s petition.

In so ruling, we also find that the circuit court should also consider the claims Miles raised in, at least, the first of the two amendments to his petition. The circuit court, in its order dismissing Miles’s petition, stated that it had granted Miles’s motion to amend on June 21, 2000, and had given Miles 30 days to file any amendment, but that it had not received any amendment as of August 1, 2000 — the date of its order. The case action summary indicates that notice of the court’s granting of Miles’s motion to amend and of the 30-day deadline was not mailed to Miles until June 28. Miles’s first amendment is included in the record and stamped as filed on July 31. In this amendment, however, Miles stated that he was mailing it on July 21. Attached to this amendment is an affidavit by James A. Allen (see note 1), dated July 25, 2000. Taking either July 21 or July 25 as the date Miles mailed his amendment, we find that the amendment was “filed” within 30 days of June 28, the date notice of the court’s deadline was mailed.

Moreover, the present record shows no valid ground for disallowing, at least, Miles’s first amendment.

“[T]he circuit court is within its discretion in refusing to consider [a petitioner’s] motion to amend his petition so long as disallowance of the amendment is ‘based upon some valid ground, such as actual prejudice or undue delay,’ Cochran v. State, 548 So.2d 1062, 1075 (Ala.Cr.App.), cert. denied, 493 U.S. 900, 110 S.Ct. 259, 107 L.Ed.2d 208 (1989). A court may refuse permission to amend where there is no showing of diligence or no showing that the underlying facts were unknown to the petitioner before filing his petition. Whitehead v. State, 593 So.2d 126 (Ala.Cr.App.1991); Cochran. See also Rule 32.7(b) (‘[amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment’) and Rule 32.7(d) (‘[l]eave to amend shall be fieely granted’).”

Harper v. State, 676 So.2d 949, 951 (Ala.Crim.App.1995).

One of the claims in Miles’s first amendment is that appellate counsel was ineffective for not raising trial counsel’s ineffectiveness in failing to preserve the alleged impropriety of the following comment by the prosecutor during cross-examination of Miles: “And I bet Tyrell [Miles’s friend] is nowhere to be found. Where is Tyrell?” 715 So.2d at 917. Evidently, Miles claimed to have gone to Tyrell’s house after leaving KFC on the night of the robbery-murder. Appellate counsel raised the underlying substantive issue — whether the prosecutor’s comment and question improperly shifted the burden of proof to the defense — and the appellate court held that trial counsel had failed to timely preserve the issue. Id. In so holding, the appellate court noted that Miles had asserted that Tyrell was available as a witness to both parties and that caselaw prohibits one party from unfavorably commenting on the other party’s failure to produce a witness supposedly favorable to that party if the witness is equally available to both sides. Id. See generally 2 Charles W. Gamble, McElroy’s Alabama Evidence § 191.01 (5th ed.1996). See also, e.g., Drayton v. State, 596 So.2d 51 (Ala.Crim.App.1991) (the prosecutor’s cross-examination of the defendant as to whether the defense had subpoenaed paramedics who had allegedly seen a police officer’s cursing and hitting the defendant, to which the defendant interposed a general objection, was reversible error; it was an improper comment on failure to call a witness, where the paramedics were equally available to both parties); Davis v. State, 494 So.2d 851, 856 (Ala.Crim.App.1986) (the prosecutor’s question on his cross-examination of the defendant — “We don’t know about all these people. Where is the lady that he rented from to come down here and testify about it?” — was improper where the evidence showed that the police questioned the uncalled witness shortly after the robbery and there seemed to be no indication that she was biased toward the defendant).

Whether appellate counsel was ineffective in not arguing trial counsel’s ineffectiveness for failing to preserve an issue for review on appeal turns on determining whether reversible error would have been presented had the issue been preserved. Assuming the comment under review is in fact an “uncalled witness” comment, the crucial determination is: what did the evidence show in regard to the “availability” of the uncalled witness? See Davis v. State. Such a comment may not have been improper if the evidence before the trial court indicated that the uncalled witness was hostile to or would have been biased against the commenting party. 2 C. Gamble, supra at § 191.01(4)(a). Moreover, the comment may not have been improper if the uncalled witness was an alibi witness, i.e., “[i]f it appearfed] that the accused ha[d] superior knowledge of the existence, identity, location and expected testimony of a possible alibi witness.” Daniels v. State, 650 So.2d 544, 560 (Ala.Crim.App.1994). If either of the above exceptions was present, the uncalled witness would not have been equally available to the prosecution.

Based on the foregoing, this cause is remanded for further proceedings. The State is to file a response to each claim acknowledged by the circuit court. Thereafter, the court, if necessary, may conduct an evidentiary hearing. In the event the circuit judge has personal knowledge of the facts underlying any of Miles’s allegations, e.g., if he observed the events that serve as a basis for any of the ineffective counsel claims, he may deny those claims without further proceeding, so long as he states the specific facts and reasons for the denial. See Harper v. State, 676 So.2d 949 (Ala.Crim.App.1995). In either event, the circuit court shall make specific findings as to each allegation. All necessary action shall be taken to see that the circuit clerk makes due return to this court at the earliest possible time and within 63 days of the release of this opinion.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12—18—10(e), Ala.Code 1975.

REMANDED WITH INSTRUCTIONS.

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

      . Although holding that the petition was barred by the limitations period, the circuit court reviewed the merits of the petition, noting: “In the interest of completeness, however, Petitioner’s Petition is fully addressed in this order.”

      . The alleged exculpatory evidence was the statement of James A. Allen naming two individuals who had invited him, before the capital murder, to participate in a robbery at the KFC; he stated that the two individuals came to his residence on the night of the robbery-murder and professed to having just robbed and murdered the manager of the Hueytown KFC; and he stated that, during this latter visit, the two showed him about $ 1,000 and two pistols, "a 9mm or .380 and a .32 revolver.”

      . In finding that the circuit court should consider Miles's first amendment as having been “filed” within the 30-day deadline, we are to be understood that this holding will not apply on remand if additional facts on remand establish that the amendment was not timely "filed.”
      In regard to Miles's second amendment, we note that it was filed on September 13, 2000, more than a month after the circuit court’s order of dismissal.

      . Of course, additional considerations might be presented on remand that would support the circuit court's finding of a valid reason upon which to disallow either amendment or both amendments.


author: COBB, Judge.

text:
    Mark Winford JOHNSON v. STATE of Alabama.
    CR-00-2285.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      William J. Paul, Geneva, for appellant.
    William H. Pryor, Jr., atty. gen., and Jean-Paul Chappell, asst. atty. gen., for appellee.
   COBB, Judge.

On March 15, 1999, Mark Winford Johnson was convicted of third-degree theft of property and third-degree burglary. On May 21, 1999, the trial court sentenced him, as a habitual offender, to 15 years in prison on the burglary charge, but suspended the sentence and ordered that Johnson be placed on probation for 5 years, and sentenced him to serve 30 days in jail on the theft charge. The trial court ordered that the sentences were to run concurrently.

On December 28, 2000, Johnson’s probation officer filed a delinquency report and recommended that Johnson be arrested and that his probation be revoked. On January 3, 2001, an arrest warrant was issued for Johnson; on April 21, 2001, the warrant was executed. On May 9, 2001, after a hearing, the trial court revoked Johnson’s probation. On May 11, 2001, Johnson filed a motion to reconsider, which the trial court denied on May 25, 2001. This appeal followed.

On appeal Johnson raises four issues:

“1. Was it constitutionally permissible or within a judge’s discretion to revoke Mark Johnson’s probation for failure to report to an abusive system?
“2. Is it in any way proper, constitutionally permissible, or within any judge’s discretion to revoke probation when an indigent defendant cannot pay?
“3. Is it constitutionally permissible or even wise to revoke probation based on a defendant being ‘clearly involved in an environment that has to [do] with drugs.’
“4. Is [the] mere recitation[ ] that ‘he was recently arrested for manufacturing methamphetamine’ sufficient to revoke probation.”

(Appellant’s brief, pp. v-vi.) Johnson did not raise any of these claims during the revocation hearing or in his motion to reconsider.

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

Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). Therefore, the only claim preserved for appellate review is Johnson’s complaint regarding the adequacy of the order revoking his probation.

Upon revoking Johnson’s probation, the trial court noted on the case action summary sheet:

“Probation revocation hearing held. The Defendant, Mark W. Johnson, failed to report to his probation officer for six consecutive months and failed to pay. He was recently arrested for manufacturing methamphetamine. His probation is hereby revoked and he is remanded to the custody of the Sheriff to be transferred to the State Department of Corrections.”

(C.R. 1.)

“ ‘In accordance with Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Crim.App.1994).”

Chenault v. State, 777 So.2d 314 (Ala.Crim.App.2000). See also Rule 27.6(f), Ala. R.Crim. P. In its brief, the State agrees that the trial court’s order is inadequate.

We find that the order revoking Johnson’s probation is inadequate because it does not contain a recitation, however brief, of the evidence relied upon by the trial court in deciding to revoke Johnson’s probation. Therefore, we remand this cause to the trial court for that court to enter an adequate written order as required by Rule 27.6(f). Due return shall be made to this court within 28 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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


author: SHAW, Judge. SHAW, Judge.

text:
    Rendell WRIGHT v. STATE of Alabama.
    CR-00-0942.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Opinion on Return to Remand April 26, 2002.

      Rendell Wright, pro se.
    William H. Pryor, Jr., atty. gen., and Frances R. Clement, asst. atty. gen., for appellee.
   SHAW, Judge.

Rendell Wright appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 17, 2000, guilty-plea conviction for robbery in the first degree and his resulting sentence of 20 years’ imprisonment. On August 7, 2000, this Court dismissed Wright’s direct appeal as untimely filed.

Wright filed the present petition on November 28, 2000. In his petition, Wright claimed: (1) that the failure to appeal his conviction was through no fault of his own; (2) that his guilty plea was involuntary because, he said, he was never informed that his sentence would be enhanced pursuant to § 13A~5-6(a)(4), Ala. Code 1975; (3) that his guilty plea was involuntary because, he said, he thought that he was pleading guilty as a youthful offender and that he would be sentenced to no more than three years’ imprisonment; and (4) that his trial counsel was ineffective because, he said, his counsel told him that he would be granted youthful-offender status and then failed to move to withdraw his plea when the trial court denied his application for youthful-offender status. On December 21, 2000, the State filed a response and motion to dismiss Wright’s petition, and the circuit court summarily denied Wright’s petition pursuant to Rule 32.7(d), Ala.R.Crim.P., on January 8, 2001.

On appeal, the State requests that we remand this cause for the circuit court to address the merits of Wright’s claims. The State maintains that Wright pleaded sufficient facts that, if true, would entitle him to relief. We agree.

Wright contends that the failure to timely appeal his conviction was through no fault of his own. He maintains that he wanted to appeal, but that his counsel failed to timely file the notice of appeal and that that failure resulted in this Court’s dismissing his appeal as untimely filed. The State did not address this claim in its motion to dismiss Wright’s Rule 32 petition; therefore, Wright’s allegations in this regard must be accepted as true. See, e.g., Davis v. State, 737 So.2d 1054 (Ala.Crim.App.1998); Rice v. State, 682 So.2d 484 (Ala.Crim.App.1995); and Kolmetz v. State, 623 So.2d 453 (Ala.Crim.App.1993). In addition, the circuit court did not specifically address this claim in its order summarily denying Wright’s petition; thus, we can only speculate as to the circuit court’s basis for denying Wright relief on this claim.

Wright also contends that his guilty plea was involuntary because, he says, he was never informed that his sentence would be enhanced pursuant to § 13A-5-6(a)(4), Ala.Code 1975. “It is well settled that a challenge to the volun-tariness of a guilty plea may be raised for the first time in a timely filed Rule 32 petition.” Waddle v. State, 784 So.2d 367, 369 (Ala.Crim.App.2000). See also George v. State, 774 So.2d 608 (Ala.Crim.App.2000). Again, the State did not specifically address this claim in its motion to dismiss Wright’s petition nor did the circuit court address the claim in its order. However, in its motion, the State averred that the trial court had granted its motion to enhance Wright’s sentence pursuant to § 13A-5-6(a)(4) at the sentencing hearing, which was held on June 13, 2000, almost two months after Wright had entered his guilty plea on April 17, 2000. The State’s chronology of events supports Wright’s claim that he pleaded guilty without being informed that his sentence would be enhanced pursuant to § 13A-5-6(a)(4).

Finally, Wright contends that his guilty plea was involuntary because, he says, he pleaded guilty with the understanding that he would be treated as a youthful offender and sentenced to no more than three years’ imprisonment. He also contends that his counsel was ineffective for misleading him into believing that he would be granted youthful-offender status and for failing to file a motion to withdraw his plea when he was denied youthful-offender status and sentenced to 20 years’ imprisonment. In its response and motion to dismiss Wright’s petition, the State asserted a general denial of these claims and attached to its motion a copy of the Ireland form signed by Wright. However, that Ireland form supports, rather than refutes, Wright’s claims. The form is entitled “Explanation of Rights of Youthful Offender.” (C. 40.) It specifically states that “The Court has determined that you are to be treated as a youthful offender” and that “you may receive punishment of up to three years’ confinement.” (C. 47.)

As to each of his claims, Wright has pleaded facts that, if true, would entitle him to relief; the State has not refuted any of Wright’s claims (in fact, most of its argument in its motion to dismiss supports Wright’s claims); and the circuit court did not specifically address any of Wright’s claims in its order summarily denying Wright’s petition. In addition, the record does not contain a transcript of Wright’s guilty-plea proceedings or his sentencing hearing; the record contains only an Ireland form, which not only supports Wright’s claim that he did, in fact, plead guilty as a youthful offender, but which “is, alone, insufficient to establish the volun-tariness of a plea.” Waddle, 784 So.2d at 370. Absent a transcript of the guilty-plea proceedings and sentencing hearing, we are unable to evaluate the merits of Wright’s claims that his guilty plea was involuntary and that his trial counsel was ineffective.

Therefore, we agree with the State that this case must be remanded to the circuit court for that court to conduct an eviden-tiary hearing regarding the merits of Wright’s claims that he failed to appeal through no fault of his own, that his guilty plea was involuntary, and that his counsel was ineffective, and to make specific findings of fact regarding each claim. Due return shall be filed with this Court no later than 56 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, a transcript of the evidentiary hearing and any other evidence taken by the court, and a transcript of the guilty-plea proceedings and sentencing hearing.

REMANDED WITH DIRECTIONS.

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

On Return to Remand

SHAW, Judge.

On November 28, 2000, Rendell Wright filed a Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 17, 2000, guilty-plea conviction for robbery in the first degree and his resulting sentence of 20 years’ imprisonment. In his petition, Wright contended: (1) that his failure to timely appeal his conviction was through no fault of his own — specifically, he alleged that his counsel had failed to file a timely notice of appeal and that that failure resulted in this Court’s dismissing his appeal as untimely filed; (2) that his guilty plea was involuntary because, he said, he was never informed that his sentence would be enhanced pursuant to § 13A-5-6(a)(4), Ala. Code 1975; and (3) that his guilty plea was involuntary because, he said, he pleaded guilty with the understanding that he would be treated as a youthful offender and sentenced to no more than three years’ imprisonment (as part of this third contention he argues that his counsel was ineffective for misleading him into believing that he would be granted youthful-offender status and for failing to file a motion to withdraw the guilty plea when he was denied youthful-offender status and sentenced to 20 years’ imprisonment). After receiving a response from the State, the circuit court summarily denied Wright’s petition. Wright appealed.

On November 30, 2001, this Court remanded the case to the circuit court for further proceedings. See Wright v. State, 845 So.2d 836 (Ala.Crim.App.2001). We held that, as to all of his claims, Wright had pleaded facts that, if true, would entitle him to relief; that the State had not refuted Wright’s claims in its motion to dismiss; and that the circuit court had not addressed Wright’s claims in its order summarily denying Wright’s petition. We remanded the case to the circuit court with specific instructions “to conduct an eviden-tiary hearing” on Wright’s petition and “to make specific findings of fact regarding each claim.” Wright, 845 So.2d at 838.

The circuit court did not comply with our instructions; it did not conduct an evidentiary hearing and it did not make specific findings of fact regarding each of Wright’s claims. Although the court submitted an amended order, again summarily denying Wright’s petition, that order contains only conclusory findings that Wright’s guilty plea was voluntary, that Wright’s counsel was not ineffective, and that all of Wright’s claims lacked merit; it does not include any specific findings of fact. More importantly, however, only one of the circuit court’s conclusory findings is supported by the supplemental record that the court submitted on return to remand.

Regarding Wright’s claim that his failure to appeal his conviction was through no fault of his own—i.e., that the notice of appeal filed by his counsel was untimely—the circuit court found that counsel’s notice of appeal was timely filed and that the dismissal of Wright’s appeal was an error on this Court’s part. The circuit court’s finding that Wright’s trial counsel did, in fact, file a timely notice of appeal is supported by the supplemental record. The record contains a written notice of appeal signed by Wright’s trial counsel that is stamped as filed in the circuit clerk’s office on July 21, 2000, which was within 42 days of Wright’s sentencing hearing. See Rule 4(b)(1), Ala.R.App.P. However, the supplemental record also contains a second notice of appeal signed by Wright’s appellate counsel that is stamped as filed in the circuit clerk’s office on August 1, 2000, over 42 days after Wright’s sentencing hearing. From the record, it appears that Wright’s trial counsel moved to withdraw from representing Wright on July 6, 2000; that he then filed a timely notice of appeal on July 21, 2000; that the trial court granted counsel’s motion to withdraw on August 1, 2000; and that Wright retained appellate counsel and appellate counsel filed a notice of appearance and a second notice of appeal on August 1, 2000. This Court’s records from the dismissal of Wright’s direct appeal reflect that the only notice of appeal this Court received was dated August 1, 2000. See Rule 4(d)(2), Ala.R.App.P. Based on that notice, we dismissed Wright’s appeal as untimely; a certificate of dismissal was issued on August 7, 2000. At that time, we had no knowledge that a timely notice of appeal had, in fact, been filed by Wright’s trial counsel. However, it is clear from the record now before this Court that a timely notice of appeal was, in fact, filed and that the dismissal of Wright’s direct appeal was the product of a miscommunication between this Court and the circuit court. Because the record reflects that dismissal of Wright’s direct appeal was, in fact, not Wright’s fault, his claim that his failure to appeal his conviction was through no fault of his own is clearly meritorious and entitles him to relief, i.e., an out-of-time appeal.

However, because the record reflects that Wright did not file a motion to withdraw his guilty plea (the failure to do so is, in fact, the basis of one of Wright’s claims of ineffective assistance of counsel) or any other posttrial motions, the claims in Wright’s petition that his guilty plea was involuntary and that his counsel was ineffective could not be reviewed on direct appeal. Yet those claims are properly before the court in his Rule 32 petition, and the allegations in that petition, if true, would entitle Wright to have his guilty plea set aside. Thus, although Wright is entitled to an out-of-time appeal, because Wright may also be entitled to have his guilty plea set aside based on his other claims, it would be a waste of judicial resources to order an out-of-time appeal without first addressing the other claims.

Regarding Wright’s claim that his guilty plea was involuntary, the circuit court stated in its order that “[t]he court reviewed the defendant’s rights, explained the correct range of punishment, the weapons enhancement provision and concluded that his plea was voluntary.” (C. Supp. 105.) Regarding Wright’s claim of ineffective assistance of counsel, the circuit court stated in its order that “[cjounsel for the defendant is not ineffective as claimed by defendant.” (C. Supp.105.) The court’s finding that Wright was informed of the sentence enhancement is supported by the transcript of the guilty-plea colloquy; therefore, Wright’s claim that his guilty plea was involuntary because he was not informed of the sentence enhancement is meritless, and the circuit court properly denied relief as to this claim.

However, the court did not make specific findings of fact regarding Wright’s claims that his guilty plea was involuntary because he thought he was pleading guilty as a youthful offender and that he would be sentenced to no more than three years’ imprisonment and that his counsel was ineffective for misleading him into believing that he would be granted youthful-offender status and for not moving to withdraw his plea when he was denied youthful-offender status and sentenced to 20 years’ imprisonment; therefore, we are still unable to address the merits of those claims. As we noted in our original opinion, the record supports Wright’s allegation that he thought he was pleading guilty as a youthful offender; it contains an Ireland, form signed by Wright and his attorney, and by the trial court, which is entitled “Explanation of Rights of Youthful Offender and Plea of Guilty” and which states that Wright would be sentenced to no more that three years’ imprisonment. The supplemental record submitted by the circuit court on return to remand also contains a copy of that Ireland form, dated March 14, 2000, and a copy of a second Ireland form, also signed by Wright, his attorney, and the trial court, dated April 17, 2000, the day Wright entered his plea. This second Ireland form is also entitled “Explanation of Rights of Youthful Offender and Plea of Guilty” and also states that Wright will be sentenced to no more than three years’ imprisonment. Although the transcript of the guilty-plea colloquy reflects that the trial court never mentioned youthful-offender status and that the court informed Wright of the minimum and maximum sentences he could receive as an adult, rather than as a youthful offender, the fact that Wright was apparently told two different things on the day he entered his plea, combined with Wright’s unrefuted claim that his counsel led him to believe that he would be treated as a youthful offender, lends credence to his allegation that he did, in fact, believe he was pleading guilty as a youthful offender and that, therefore, his guilty plea was involuntary. See, e.g., Ford v. State, 881 So.2d 641, 643 (Ala.Crim.App.2001), quoting Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999) (“It is well settled that ‘a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.’ ”). Under these circumstances, it is essential that the circuit court hold a hearing to determine whether Wright’s counsel did, in fact, lead him to believe that he would be treated as a youthful offender and whether Wright knew at the time he pleaded guilty that he was pleading guilty as an adult and that the trial court could deny his application for youthful-offender status at his sentencing hearing.

Because the circuit court did not comply with the instructions in our original opinion, we must remand this ease a second time. We again instruct the circuit court to conduct an evidentiary hearing and to make specific findings of fact regarding Wright’s claims that his guilty plea was involuntary because he thought he was pleading guilty as a youthful offender and would receive a sentence of no more than three years’ imprisonment, and that his trial counsel was ineffective for leading him to believe that he would be treated as a youthful offender and then failing to move to withdraw his plea when the trial court denied him youthful-offender status. If the court determines that Wright did, in fact, believe that he was pleading guilty as a youthful offender (either because of the Ireland forms he signed or because his counsel led him to believe it) and that Wright’s guilty plea was, therefore, involuntary, the court is instructed to set aside Wright’s guilty plea. If, however, the court determines that Wright’s guilty plea was voluntary and that his counsel was not ineffective as alleged, the court should then grant Wright an out-of-time appeal and, if Wright is determined to be indigent, appoint counsel to represent him. Due return should be filed with this Court no later than 56 days from the date of this opinion. The return to remand shall include the circuit court’s written findings and a transcript of the evidentiary hearing and any other evidence taken by the court.

REMANDED WITH INSTRUCTIONS.

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

      . Wright also claimed in his petition that the State withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, Wright does not pursue that claim on appeal; therefore, it is deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) ("We will not review issues not listed and argued in brief.").

      . See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (Ala.Crim.App.1971). See also Ride 14.4, Ala.R.Crim.P.

      . See Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).

      . Although the circuit court stated in its order that Wright's counsel had not rendered ineffective assistance, it would have been impossible to malte such a determination without any evidence because this ineffective-assistance-of-counsel claim is based entirely on communications between Wright and his counsel, to which the circuit court was not privy.


text:
    Korey Dewayne WOODS v. STATE of Alabama.
    CR-00-1587.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Rehearing Denied April 19, 2002.
    Certiorari Denied Sept. 13, 2002 Alabama Supreme Court 1011509.

      Charles Jackson Perkins, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, deputy atty. gen., for ap-pellee.
   COBB, Judge.

On February 7, 2001, Korey Dewayne Woods was. convicted of discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala.Code 1975. The circuit court sentenced Woods to 10 years in prison; that sentence was split, and Woods was ordered to serve 2 years’ imprisonment and the remaining 8 years on probation.

Woods asserts three issues on appeal, and we address each in turn.

I.

First, Woods argues that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. Specifically, Woods contends the trial court erred when it failed to require the State to provide race-neutral reasons for its peremptory strikes. We disagree.

The 27-person venire included 15 blacks. The State used five of its seven strikes to remove blacks. Woods made a timely objection at trial, and argued that' the State struck five blacks. Woods claimed that, in his opinion, the State had struck the five blacks because of race, and he asked the court to require the State to provide a race-neutral reason for each strike. Woods did not offer any additional evidence to support his Batson motion, and the trial court denied it.

The party claiming a Batson violation must first establish a prima facie case of discrimination before the other side is required to state its reasons for its peremptory strikes. See Ex parte Press ley, 770 So.2d 143, 145 (Ala.2000); Stokes v. State, 648 So.2d 1179, 1180 (Ala.Crim.App.1994). While “[c]ircurastantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury,” Woods has offered no such evidence, and eight blacks remained on the venire following the peremptory strikes by both sides. Ex parte Branch, 526 So.2d 609, 623 (Ala.1987). It is undisputed that the State used five of its seven strikes to remove blacks from the venire. However, statistics and opinion alone do not prove a prima facie case of discrimination. See Johnson v. State 823 So.2d 1 (Ala.Crim.App.2001).

The trial court noted when it denied Wood’s Batson motion that the prosecutors in his case had not displayed a history of discriminatory strikes in previous trials in that courtroom. Woods failed to make a prima facie case of discrimination, so the trial court’s ruling on the Batson motion was not clearly erroneous. Therefore, Wood’s claim is without merit.

II.

Woods next contends that the trial court erred by denying his motion for judgment of acquittal. We disagree.

A.

Woods preserved this claim for appellate review with the following oral motion for a judgment of acquittal:

‘We would move at this time for a directed verdict of acquittal for the charge of firing into an occupied vehicle. Judge, we do not believe the State has made out a prima facie case against the defendant, Korey Woods. And in effect, we believe the evidence is totally insufficient to warrant this case going to the jury, Your Honor. We do not think it has comprised the elements necessary to entitle the jury to receive the charge on firing into an occupied vehicle.”

(R. 237-38.) Woods also argued that the State had called only one of the alleged victims to testify, and then reiterated that the State had failed to prove that shots were actually fired at or into an occupied vehicle. The district attorney contended that the State had made out a prima facie case. He further stated that the second victim was not called to testify because that victim was Woods’s wife, and she could not be forced to testify against her husband. The other victim, a man, testified that the tire on his vehicle went flat immediately after Woods fired the gun. The trial judge denied Woods’s motion for a judgment of acquittal.

Section 13A-11-61, Ala.Code 1975, in relevant part, provides:

“(a) No person shall shoot or discharge a firearm, explosive or other weapon which discharges a dangerous projectile into any occupied or unoccupied dwelling or building or railroad locomotive or railroad car, aircraft, automobile, truck or watercraft in this state.”

The Alabama Supreme Court addressed the appellate court’s role in reviewing the sufficiency of the evidence in criminal eases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr.App.1984), aff'd, 471 So.2d 493 (Ala. 1985).’ Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1861 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App.1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978) (emphasis original).”

730 So.2d at 658.

The evidence here, viewed most favorably to the State, tended to show that on July 12, 1998, Lakell Freeman and La-quettia Mercer were driving in his vehicle following a date. Freeman testified that he had been dating Mercer for about a month, and that he did not know Woods. Freeman was about to drop Mercer off, when Mercer told him to keep driving “because her baby’s father was coming and she was scared.” (R. 74.) Freeman testified that another car pursued his car, and that he saw the driver of that other car fire a pistol at his car. Freeman identified Woods as the man who pursued him and shot at him. Freeman testified that five shots were fired, that his car sustained two bullet holes in the fender, and that a tire on his car was shot out. Photographs introduced at trial showed the damage Freeman’s car sustained. Officer Raynard Escott, who took statements from Freeman and Mercer after the incident, testified that Mercer identified Woods as the gunman. Based on our review of the record, we find that the State presented sufficient evidence to submit the case to the jury on the charge of unlawfully discharging a firearm into an occupied vehicle. Thus, Woods is not entitled to relief on this claim.

B.

In his reply brief, Woods seems to make an argument concerning the weight of the evidence, when he argues that contradictory evidence was presented at trial and that “there is a logical explanation” — besides his shooting at it — for the damage to Freeman’s car. (Woods’s Reply Brief, p. 5.) This issue is being raised for the first time on appeal and thus has not been preserved for our review. See Meadows v. State, 773 So.2d 1053, 1054 (Ala.Crim.App.2000). We note, also, that an appellant may not raise a new issue for the first time in a reply brief. James v. State, 788 So.2d 185, 192 n. 2 (Ala.Crim.App.2000).

Moreover, even had this issue been preserved, we would still find Woods’s argument to be without merit. The jury was in the best position to view the evidence, and this Court will not reverse its verdict. “ ‘Conflicting evidence is always a question for the jury to determine, and a verdict rendered thereon will not be disturbed on appeal.’ ” Snell v. State, 715 So.2d 920, 923 (Ala.Crim.App.1998) (internal citations omitted and quoting Ex parte Suggs, 403 So.2d 309, 313 (Ala.Crim.App.1981)). “ ‘The credibility of witnesses and the weight to be given the testimony is for the jury to determine.’ ” McLeod v. State, 627 So.2d 1066, 1068 (Ala.Crim.App.1993) (quoting Bennett v. State, 584 So.2d 869, 871 (Ala.Crim.App.1990)). Therefore, even if Woods had preserved this issue for appellate review, he would still not be entitled to relief.

III.

Woods argues that the trial judge erred in refusing to charge the jury on the lesser-ineluded offenses of reckless endangerment and menacing. We disagree.

Woods preserved this issue for our review with a proper and timely objection to the trial judge’s refusal to give his requested jury instructions. Rule 21.3, Ala. R.Crim. P.

Whether a crime constitutes a lesser-included offense is to be viewed on a case-by-case basis, and based on the specific facts of each case. See McNabb v. State, [CR-98-0967, October 26, 2001] — So.2d -, -(Ala.Crim.App.2001).

In Whitehead v. State, 777 So.2d 781, 844 (Ala.Crim.App.1999), aff'd, 777 So.2d 854 (Ala.2000), this Court held:

“ ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ’ ”

Whitehead v. State, 777 So.2d at 844 (quoting Williams v. State, 675 So.2d 537, 540 (Ala.Crim.App.1996), quoting other cases).

“ While the appellant’s denial of shooting the gun does not necessarily preclude him from having a jury instruction on a lesser included offense, the absence of any evidence to support a theory of a reckless shooting does prevent him from receiving the lesser included offense instruction. In Ex parte Stork, 475 So.2d 623 (Ala.1985), the Alabama Supreme Court reviewed the issue of whether a defendant is entitled to a jury charge on a lesser included offense when he denies committing the crime itself. The Alabama Supreme Court refused to consider the defendant’s testimony a bar to giving the charge, and held that a defendant is entitled to the charge on the lesser included offense as long as the charge is “based upon any material hypothesis which the evidence in his favor tends to establish.” Id. at 624. In this case, there was never any evidence offered to support a theory that the shooting was the result of merely reckless conduct. Thus, there was no material basis for a theory of reckless manslaughter.’ ”

Dorsey v. State, [Ms. CR-97-1522, May 25, 2001] — So.2d -, - (Ala.Crim.App.2001) (quoting Bone v. State, 706 So.2d 1291, 1297-98 (Ala.Crim.App.1997)).

Section 13A-6-24(a), Ala.Code 1975, provides that “[a] person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” Section 13A-6-23(a), Ala. Code 1975, provides that “[a] person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.”

While on the witness stand, Woods testified that he followed, but did not pursue, Freeman, that he did not have a gun in his possession while he was following Freeman, and that he did not fire a gun at that time.

“[Defense attorney]. And right after [Freeman] pulled out, you heard him testify that you fired a shot at him. Is that true?
“[Woods]. Yes, I heard him testify that I fired a shot at him.
“[Defense attorney]. Is that true, sir?
“[Woods]. No, sir. That’s not true.
“[Defense attorney]. Have you ever owned a weapon of any kind?
“[Woods]. Never in my life.
“[Defense attorney]. Have you ever shot a pistol of any kind?
“[Woods]. No, sir. Never in my life.
“[Defense attorney]. And were you chasing them?
“[Woods], No, sir.”

(R. 245.) Woods also testified as follows:

“When [Freeman] turned right on Avenue W, he began to mash the gas real hard and his back end — the rear end — of the car started fishtailing. Therefore, I was behind them. Slowly stopped. I stopped immediately when he was fishtailing. Then when he got halfway up the [railroad] track, he hit it again. He mashed the gas acceleration again, and that’s when he started spinning again. So I was slowly driving behind him. When he had acceleration on the tracks, that’s when the tire blew out.”

(R. 246-47.)

Woods testified that he was following, but was not pursuing, Freeman’s car, and that he did not want to find out who she was in the car with because he “didn’t want a confrontation.” (R. 269.) Woods testified that he did not point a gun out of his car window and fire at Freeman’s car, and that the “windows didn’t let down on the car I was driving.” (R. 282.)

At the close of the evidence, Woods asked if the trial court had reviewed his requested jury charges. The trial judge stated that he was concerned about the charges on menacing and on reckless endangerment. The State indicated that it would object to those charges. Woods argued that the jury could find reckless endangerment from a high-speed chase or from the presence of a gun that was not fired into Freeman’s car. Woods, cites on appeal, as he did at trial, Farmer v. State, 565 So.2d 1238 (Ala.Crim.App.1990), and Moore v. State, 647 So.2d 43 (Ala.Crim.App.1994), to support his contention that the trial court erred in rejecting his requested jury charges on menacing and reckless endangerment.

The trial judge, following a 15-minute recess, declined to give Woods’s requested jury charges, stating:

“For purposes of the record, the Court, after long consideration and reading the relevant legal authority regarding lesser-included offenses in this case, I have decided not to give any lesser-included offenses in this case because the Court feels there is no evidentiary basis in this case to give such lesser-included offenses.
The evidence is that either the defendant intentionally discharged the firearm into an occupied automobile or he didn’t. And to give any lesser-included offenses would be confusing to the jury. And quite frankly under the facts in this case, the Court doesn’t know how it would explain the differences between discharging a firearm and reckless endangerment.”

(R. 354.)

In Farmer, this Court stated: “Under the facts of this case, we find that reckless endangerment is a lesser included offense of discharging a firearm into an occupied dwelling.” Farmer v. State, 565 So.2d at 1240.

However, the facts here are distinguishable from those in Farmer. Farmer evidently admitted to the actual shooting, because he raised self-defense, and he also argued that it was possible to fire into a dwelling without recklessly endangering.

Here, Woods denied committing any crime. Woods did not argue that any mitigating factors were present or that any privilege existed. There was no testimony that a chase occurred without the gunfire, or that a gun was brandished without being fired.

There was no evidence to support a theory that Woods intended merely to place Freeman and Mercer in fear of imminent harm, as is required for menacing. See Willingham v. State, 695 So.2d 144, 147 (Ala.Crim.App.1996), reversed on other grounds, 695 So.2d 148 (Ala.1996) (the appellant was either guilty of second-degree kidnapping or nothing at all and was not entitled to a jury charge on menacing).

While we recognize that there are situations where reckless endangerment can be a lesser-included offense of discharging a firearm into an occupied vehicle, this is not such a case. The evidence showed either that Woods fired a gun into an occupied vehicle or that he committed no crime at ah.

Thus, we find no “reasonable theory from the evidence” to support Woods’s claim that he was entitled to a jury instruction on menacing or reckless endangerment. See Dorsey, — So.2d at - (quoting Jones v. State, 753 So.2d 1174, 1189 (Ala.Crim.App.1999)). The trial court did not err in denying Woods’s requested jury charges on the grounds that the evidence did not establish the lesser-included offenses. See Whitehead, 777 So.2d at 844.

For the above-stated reasons, Woods’s conviction and his sentence are due to be affirmed.

AFFIRMED.

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

      . Woods and Mercer were not married at the time of the incident, but had one child together. After the incident in question, but before Woods’s trial, they married.


author: SHAW, Judge.

text:
    Calvin Bernard BROOKS v. STATE of Alabama.
    CR-00-1892.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Rehearing Denied April 19, 2002.
    Certiorari Denied Sept. 13, 2002 Alabama Supreme Court 1011466.

      Calvin Bernard Brooks, pro se.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

Calvin Bernard Brooks appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1988 conviction for escape in the second degree and his resulting sentence, as a habitual offender, of 20 years’ imprisonment.

As best we can discern, Brooks alleged the following in his petition: (1) that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he said, the State failed to prove the elements of escape in the second degree; (2) that his conviction violates “the ex post facto laws of the U.S. Constitution” because, he said, he was convicted “based on facts that were not criminal at the time” (C. 4.); (3) that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he said, the petit jury was never sworn; and (4) that his 20-year sentence is illegal because, he said, “at no time did the State submit any certified case action summary sheets” to prove his prior convictions. (C. 17.)

Claims 1, 2, and 4, as set out above, are clearly not jurisdictional claims and, therefore, are subject to the procedural bars in Rule 32.2. See, e.g., Bass v. State, 810 So.2d 802 (Ala.Crim.App.2001) (Rule 32 petitioner’s challenge to the sufficiency of the evidence was not jurisdictional); Johnson v. State, 675 So.2d 85, 87 (Ala.Crim.App.1995) (Rule 32 petitioner’s claims that the State failed to adequately prove prior felony convictions used for sentence enhancement was not jurisdictional); and Nichols v. State, 629 So.2d 51, 57-58 (Ala.Crim.App.1993) (same). Because Brooks’s petition was filed long after the two-year limitations period had expired, these claims are time-barred by Rule 32.2(c), Ala.R.Crim.P., and summary denial as to these claims was proper.

As to Brooks’s claim that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he says, the petit jury was never sworn, we find that Brooks has failed to plead sufficient facts to show that this claim is, in fact, jurisdictional and, therefore, that it, too, is time-barred by Rule 32.2(c).

It is well settled that “[t]he failure to administer the oath to the jury renders the jury’s verdict a nullity,” Dyson v. State, 722 So.2d 782, 785 (Ala.Crim.App.1997), and that “if the jury or any member thereof was not sworn, it was not the verdict of a jury.” Fowler v. State, 261 Ala. 262, 268, 74 So.2d 512, 513 (1954). See also Hines v. State, 238 Ala. 575, 192 So. 423 (1939); Melton v. State, 45 Ala. 56 (1871); and Hill v. State, 582 So.2d 1165 (Ala.Crim.App.1991). However, in Ex parte Deramus, 721 So.2d 242 (Ala.1998), the Alabama Supreme Court recognized that there is a difference in a situation in which no oath is given to jurors at all and a situation in which there is merely a defect in the oath. In Deramus, the jury venire was administered an oath before voir dire examination, but the petit jury was not administered an additional oath after it was empaneled. The Alabama Supreme Court characterized this as a defective-oath situation, not a no-oath-at-all situation, and recognized that “ ‘any defect in the administration of the oath’ ” is reversible error only if “ ‘some objection was taken ... during the progress of the trial, based on [that] defect,’ ” 721 So.2d at 244, quoting § 12-16-173, Ala.Code 1975. Because the appellant had not objected to the defect during trial, the Court held that the appellant’s claim that his conviction was void because the petit jury had not been sworn had been waived. Similarly, this Court has held that claims that the venire was not sworn before voir dire examination are waivable, thus implicitly recognizing that such situations are also defective-oath situations and not no-oath-at-all situations. See, e.g., Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001); Bryant v. State, 739 So.2d 1138 (Ala.Crim.App.1998); and Sumlin v. State, 710 So.2d 941 (Ala.Crim.App.1998). Because only nonjuris-dictional issues can be waived, see, e.g., Mitchell v. State, 777 So.2d 312 (Ala.Crim.App.2000), it is clear that any claim based on a defect in an oath is nonjurisdictional and, therefore, is subject to the procedural bars in Rule 32.2. On the other hand, a claim that no oath was administered at all — i.e., the jury venire and the petit jury were not sworn — would be a jurisdictional issue because, as noted above, a verdict rendered by jurors who have never been sworn is a nullity.

In this case, Brooks has not alleged that no oath was administered at all; thus, he has not pleaded facts sufficient to show that his issue is jurisdictional. Brooks alleges that the petit jury was not sworn, but he does not allege that the venire was not sworn. In fact, in his brief to this Court, Brooks maintains that “the practice” in Houston County is to administer the oath to the venire on Monday before trials begin on Tuesday. (Brooks’s brief at p. 14.) Brooks’s claim is based on an alleged defect in the oath, a nonjurisdic-tional claim subject to the procedural bars in Rule 32.2. Because, as noted above, Brooks’s petition was filed long after the expiration of the two-year period of limitations, this claim is time-barred by Rule 32.2(c), and summary denial of this claim was also proper.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . See Rule 12.1(c), Ala.R.Crim.P.

      . See § 12-16-170, Ala.Code 1975, and Rule 18.5, Ala.R.Crim.P.

      . See also Ex parte Borden, 769 So.2d 950 (Ala.2000) (in which the Alabama Supreme Court further held that the failure to administer the oath to the petit jury, when the venire had been properly sworn, was harmless error).

      . We note that in Fortner, supra, we held that "a petitioner’s claim that the jury venire, or the petit jury, was not properly sworn is not jurisdictional and is waivable.” 825 So.2d at 880 (emphasis added). We implicitly recognized what we expressly recognize today: that there is a difference between a claim that the trial court failed to administer the oath to both the venire and the petit jury — which is a jurisdictional claim — and a claim that the trial court failed to administer the oath to either the venire or the petit jury — neither of which are, by themselves, jurisdictional claims.


text:
    John HOOD v. STATE of Alabama.
    CR-00-2451.
    Court of Criminal Appeals of Alabama.
    March 1, 2002.
    Billy Shaun McGhee, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

John Hood appeals from the trial court’s order revoking his probation.

On February 14, 2001, Hood was convicted of escape in the third degree and was sentenced to three years’ imprisonment. The sentence was split, and Hood was ordered to serve three months in confinement followed by two years on probation. On June 18, 2001, Wade Brinson, Hood’s probation officer, filed a delinquency report alleging that Hood had violated the terms and conditions of his probation by committing a new offense and by failing to avoid injurious or vicious habits. After a revocation hearing on August 14, 2001, the trial court revoked Hood’s probation.

On appeal, Hood contends that the trial court erred in revoking his probation because, he says: (1) there was insufficient evidence to warrant revoking his probation; (2) he was not informed that he had the right to call witnesses and to present evidence on his behalf; and (3) the probation-revocation hearing was not held within a reasonable time after his initial appearance as required by Rule 27.6(a), Ala. R.Crim.P. None of these issues were presented to the trial court. In Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000), this Court stated:

“Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997).
“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’
“Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). Additionally, as noted earlier, this Court recently held in Law [v. State, 778 So.2d 249 (Ala.Crim.App.2000),] that a defendant can also raise for the first time on appeal that the trial court erred in failing to advise him of his right to request an attorney during probation revocation proceedings. 778 So.2d at 250.”

794 So.2d at 1236-37. Hood’s claims do not fall within one of the exceptions to the general rules of preservation that have been recognized in probation-revocation proceedings. Thus, because Hood did not raise these claims in the trial court, they were not properly preserved for review.

Hood also contends on appeal that the trial court’s order revoking his probation was insufficient because, he says, the trial court failed to state the reasons it was revoking his probation or the evidence it relied on in doing so. Although Hood did not object to the sufficiency of the trial court’s order, it is well settled that “the adequacy of a written order of revocation can be raised for the first time on appeal.” Durr v. State, 807 So.2d 595, 595 (Ala.Crim.App.2001), citing Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

“ ‘In accordance with Gagnon v. Scarpelli 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000). Here, the trial court’s order consisted only of a notation on the case action summary sheet that “[probation is revoked.” (C. 2.) As the State correctly points out in its brief to this Court, this Court held in Durr, supra, that the trial court’s notation on the case action summary sheet that “probation is revoked” was not sufficient to satisfy the requirements of due process. 807 So.2d at 595. Likewise, in this case, the trial court’s notation on the case action summary sheet was not sufficient to satisfy due process.

Therefore, based on Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we must remand this cause to the trial court for it to prepare a written statement of the reasons for revoking Hood’s probation and the evidence it relied upon in doing so. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

       Note from the reporter of decisions: On September 20, 2002, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.