author: COBB, Judge. BASCHAB, Judge,

text:
    Harry John COUGHLIN, Jr. v. STATE of Alabama.
    CR-00-2610.
    Court of Criminal Appeals of Alabama.
    May 31, 2002.
    Rehearing Denied Aug. 2, 2002.

      Harry John Coughlin, Jr., pro se.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

We address all of Harry John Coughlin, Jr.’s, arguments and affirm the trial court’s judgment in an unpublished memorandum. Coughlin v. State (No. CR-00-2610, May 31, 2002),—So.2d-(Ala.Crim.App.2002) (table). However, we felt it necessary to address the dissent both in this case and in the similar case, also affirmed by unpublished memorandum, of Coughlin v. State, (No. CR-00-2114, March 1, 2002) 837 So.2d 326 (Ala.Crim.App.2002) (Baschab, J., dissenting). See also Clemons v. State, 814 So.2d 317 (Ala.Crim.App.2001) (Baschab, J., dissenting).

Coughlin, a nonindigent defendant, represented himself at trial. The dissent maintains that his conviction should be reversed and the cause remanded for a new trial because the record does not affirmatively indicate that the trial court ever advised Coughlin of the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and because the trial court never advised Coughlin that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Coughlin did not raise these arguments at trial and does not present either of these arguments on appeal. The dissent apparently believes that it is not sufficient that the record reflects that Coughlin, a nonin-digent defendant, appeared at trial without counsel “after having been given a reasonable time to retain counsel.” Rule 6.1(b). The dissent maintains that, in order for a nonindigent defendant to represent himself, he must waive his right to counsel knowingly, intelligently, and voluntarily; the dissent also apparently maintains that such a waiver of the right to counsel is knowing and intelligent only when a nonin-digent defendant and the trial court follow the letter of Rule 6.1(b) and Faretta. Certainly a waiver of counsel must be knowing and intelligent; it is the latter portion of the dissent’s proposition with which we take issue.

A defendant’s decision to represent himself necessarily involves the waiver of his right to counsel. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (1986). In Pratt v. State, [Ms. CR-00-2495, March 22, 2002] — So.2d -,-(Ala.Crim.App.2002), this Court pointed out:

“ ‘The constitutional “right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an aecused[, and c]onviction without this safeguard is void.” People v. Carroll, 140 Cal.App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst [, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ]). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.CrApp.1993) (“the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[ ]”); Lake v. City of Birmingham, 890 So.2d 36, 38 (Ala.Cr.App.1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation “will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty”).’
“Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (‘ “If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.... The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.” ’ (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (holding that the right to counsel at arraignment is a jurisdictional matter).”

Thus it is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to jurisdietionally bar his prosecution.

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”

Johnson v. Zerbst, 804 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Rule 6.1(b), Ala. R.Crim. P., provides a framework to ensure that a defendant’s waiver of counsel is knowing and intelligent:

“A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings....
“If a nonindigent defendant appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the cause shall proceed. If an indigent defendant who has refused appointed counsel in order to obtain private counsel appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the court shall appoint counsel unless the indigent defendant waives his right under this rule. If the indigent defendant continues to refuse appointed counsel, the cause shall proceed.”

See also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.”).

Although a written waiver of counsel or an affirmative waiver transcribed on the record would be preferable, a waiver of the right to counsel can be otherwise indicated:

“ ‘ “[WJhere a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.” ’ Siniard v. State, 491 So.2d 1062, 1064 (Ala.Cr.App.1986).”

Warren v. City of Enterprise, 641 So.2d 1312, 1316 (Ala.Crim.App.1994). See also Rule 6.1(b).

Thus, it is the nonindigent defendant’s act of appearing at any proceeding without counsel, after having been given a reasonable time to retain counsel, that serves as a waiver of his right to counsel “on the record.” Rule 6.1(b).

Certainly, the provisions of Rule 6.1(b) are mandatory, and, if a defendant properly preserves and presents an argument on appeal that the trial court faltered in its application of the mandatory provisions of Rule 6.1(b), he is entitled to relief. See, e.g., Ex parte King, 797 So.2d 1191 (Ala.2001). However, the fact that a trial court forgoes those provisions does not necessarily indicate that a defendant unknowingly, unintelligently, and involuntarily has waived his right to counsel. That is, the fact that a trial court fails to abide by the letter of Rule 6.1(b) and Faretta does not necessarily result in the defendant’s being deprived of counsel and, thus, the trial court’s being jurisdictionally barred from rendering a judgment. See Tomlin v. State, 601 So.2d 124, 128 (Ala.1991) (“Although the Supreme Court in Faretta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant.”). See also Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986) (“The ultimate test is not the trial court’s express advice, but rather the defendant’s understanding.”).

Whether a defendant who chooses to represent himself has knowingly, intelligently, and voluntarily waived his right to counsel can be indicated by the record or by the totality of the circumstances surrounding the waiver. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”). See also Clemons v. State, 814 So.2d 317 (Ala.Crim.App.2001) (citing Monte v. State, 690 So.2d 517 (Ala.Crim.App.1996)); Johnston v. City of Irondale, 671 So.2d 777 (Ala.Crim.App.1995); Warren v. City of Enterprise, 641 So.2d 1312 (Ala.Crim.App.1994); Siniard v. State, 491 So.2d 1062 (Ala.Crim.App.1986). See also Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (“Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. [269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)].”).

From the reasoning above, we conclude that, although certainly some sort of colloquy or waiver hearing is preferable, it is not a per se denial of the right to counsel when a defendant represents himself without the record affirmatively showing that the trial court followed the procedures of Rule 6.1(b) or issued the warnings against self-representation found in Faretta. Rather, it is sufficient that a defendant knowingly, intelligently, and voluntarily waives his right to counsel “in writing or on the record.” Rule 6.1(b). When a nonindigent defendant appears at any proceeding without counsel, after having been given reasonable time to find counsel, the defendant has waived his right to counsel on the record. In order to determine whether that waiver is knowing, intelligent, and voluntary, this Court will consider the totality of the circumstances surrounding the nonindigent defendant’s waiver of the right to counsel and his choice to represent himself, including the background, experience, and conduct of the accused. See Zerbst, supra.

In the present case, admittedly, the case action summary and the transcript of the proceedings are silent as to Coughlin’s decision to represent himself. See Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Crim.App.1980) (“If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record.”). However, in addition to the fact that Coughlin does not contest the volun-tariness of his self-representation, the circumstances surrounding his decision to represent himself otherwise indicate that he knowingly, intelligently, and voluntarily waived his right to counsel.

First, the record in this case reflects that Coughlin never applied for, and was never granted, indigent status. Coughlin was arrested on February 9, 2001, and his proceedings in circuit court began on August 1, 2001; Coughlin had more than six months to retain counsel. Coughlin, as a nonindigent defendant, was given a reasonable time to retain- counsel and chose not to do so; therefore, he has waived his right to counsel on the record.

Second, Coughlin’s background and experience indicate that this waiver was knowing, intelligent, and voluntary. This Court is not unaware of the litigious nature of Coughlin and his mother, Bettye, and of their frequent courtroom visits. The Coughlins have been before the appellate courts of Alabama numerous times concerning criminal matters. See Ex parte Coughlin, (No. 1991218) 787 So.2d 730 (Ala.2000) (table) (denying certiorari review); Ex parte Coughlin, (No. 1990983) 787 So.2d 728 (Ala.2000) (table) (denying certiorari review); Ex parte Coughlin, (No. CR-88-1547) 596 So.2d 59 (Ala.1989) (table) (certiorari stricken); Coughlin v. State, (No. CR-00-2114, March 1, 2002) 837 So.2d 326 (Ala.Crim.App.2002) (affirming the convictions and sentences); Coughlin v. City of Birmingham, (No. CR-98-2512) 805 So.2d 791 (Ala.Crim.App.2000) (table) (affirming conviction and denying rehearing on $25 parking fine); Coughlin v. State, (No. CR-98-2460) 805 So.2d 790 (Ala.Crim.App.2000) (table) (dismissing as deficient an appeal from a disorderly conduct conviction); Coughlin v. State, (No. CR-98-2459) 805 So.2d 790 (Ala.Crim.App. 2000) (table) (dismissing as deficient an appeal from a disorderly conduct conviction); Ex parte Coughlin, (No. CR-99-0437) 796 So.2d 466 (Ala.Crim.App.1999) (table) (dismissing a habeas corpus petition); Ex parte Coughlin, (No. CR-98-2346) 778 So.2d 886 (Ala.Crim.App.1999) (table) (dismissing a petition for a writ of mandamus); Ex parte Coughlin, (No. CR-98-2091) 778 So.2d 884 (Ala.Crim.App.1999) (table) (dismissing a petition for a writ of prohibition); Ex parte Coughlin, (No. CR-98-0482) 767 So.2d 422 (Ala.Crim.App.1999) (table) (dismissing an unidentified petition); Coughlin v. City of Birmingham, 701 So.2d 830 (Ala.Crim.App.1997) (holding that the handwritten word “fury” in the right margin of the notice of appeal form was sufficiently timely and proper written demand for a jury trial under the circumstances); Coughlin v. City of Birmingham, (No. 6 Div. 887) 553 So.2d 137 (Ala.Crim.App.1989) (table) (rehearing denied); Coughlin v. City of Birmingham, (No. 6 Div. 887) 550 So.2d 1087 (Ala.Crim.App.1989) (table) (conviction and sentence affirmed); Ex parte Coughlin, (No. 6 Div. 855) 537 So.2d 70 (Ala.Crim.App.1988) (table) (denying a petition for a writ of mandamus); and Coughlin v. State, 56 Ala.App. 225, 320 So.2d 739 (1975) (reversed and remanded Bettye Coughlin’s conviction and sentence, holding that, for an order of a police officer to be “lawful” within the meaning of the statute, the order must be directly related to direction, control, and regulation of traffic, and that, under the circumstances, the statute was not violated).

We recognize that generally we do not look outside the record before us on appeal. See Scroggins v. Alabama Gas Corp., 275 Ala. 650, 158 So.2d 90 (1963). However, in this rarest of instances — a nonindigent defendant represents himself and does not complain on appeal about his decision to do so, but the transcript contains not even the slightest indication that his decision was voluntary— this Court takes judicial notice of Cough-lin’s legal experience; we do not consider any evidence outside the record that otherwise relates to his arguments and allegations on appeal. See Allred v. Shirley, 598 So.2d 1347, 1348 (Ala.1992). We consider the fact that, as far as our records indicate, neither of the Coughlins have ever applied for indigent status; they have always chosen to represent themselves, and they have done so with relish. In fact, at times, Coughlin has claimed to be an attorney. Coughlin (No. CR-00-2114), supra.

It is entirely possible that the trial judge as well, having dealt with Coughlin more than a few times, was aware of his affinity for litigation and therefore found it unnecessary to adhere stringently to Rule 6.1. Where a trial judge has knowledge of an overly litigious defendant, it would certainly be sufficient that the judge explain the situation on the case action summary or in a short order.

Finally, Coughlin’s conduct in this case indicates a penchant and an acuity for self-representation. The record reflects that Coughlin did not object to representing himself and, in fact, appeared to enjoy his day in court. Coughlin’s case was originally tried in the district court, wherein he filed several pretrial and posttrial motions, as he ultimately did during the de novo proceedings in the circuit court. Cough-lin’s examination of witnesses was extensive, as were his opening and closing statements.

Although the record appears not to contain any information regarding whether Coughlin was apprised of the dangers of self-representation or of his right to withdraw his waiver of counsel, there is no need to reverse the trial court’s judgment and to order a new trial. Taking into consideration the totality of the circumstances of Coughlin’s case, we conclude that Coughlin’s waiver of counsel was otherwise voluntary and knowing, even though the trial court failed to abide by Rule 6.1(b) or Faretta.

AFFIRMED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

I must respectfully dissent. On August 1, 2001, the appellant, who did not request indigency status, appeared without counsel, and the trial began with the appellant representing himself. However, the record does not indicate that the trial court ever specifically advised the appellant about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

“In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 836, 95 S.Ct. at 2541 (other citations omitted).”

Tomlin v. State, 601 So.2d 124, 128 (Ala.1991). In addition, the trial court did not advise the appellant that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Rule 6.1(b), Ala. R.Crim. P., states, in part: “If a nonindigent defendant appears without counsel at any proceeding after having been given a reasonable time to retain counsel, the cause shall proceed.” However, the previous paragraph of Rule 6.1(b), Ala. R.Crim. P., which does not distinguish between indigent and nonindigent defendants, provides, in pertinent part:

“A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings.”

(Emphasis added.) Finally, the Committee Comments to Rule 6.1 state: “The court is required to inform the defendant that the waiver may be withdrawn since under section (c) the defendant has the burden of requesting counsel if he later decides to withdraw the waiver.”

I recognize that the appellant does not raise this issue on appeal. However, the right to counsel is fundamental. Where a pro se defendant does not preserve the issue by objecting during the trial or does not raise the issue in his brief to this court, he does not waive appellate review of the issue. The uncounseled defendant probably would not know that he needed to object to preserve the issue for appellate review. Obviously, if the defendant has not been advised of the pitfalls of self-representation and then falls into one of those pits, it is incumbent on this court to provide a review.

Because the record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation and that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995).

      . The Coughlins have also been involved in numerous civil matters, generally stemming from criminal matters. However, we do not cite these in this opinion.


source: Caselaw Access Project

author: BASCHAB, Judge. COBB, JUDGE,

license: Public Domain

text:
    Reggie Dewayne WARE v. STATE of Alabama.
    CR-01-0421.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Roy Roderick Sylvester II, Andalusia, for appellant.
    Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On May 4, 1998, the appellant, Reggie Dewayne Ware, pled guilty to second-degree criminal mischief. The trial court sentenced him to serve a term of one year in the county jail, but suspended the sentence and ordered him to serve two years on probation. It also ordered him to pay restitution, court costs, the fees for his court appointed attorney, and $50 to the Alabama Crime Victims Compensation Fund. On April 13, 2000, the State filed a “Motion to Revoke Suspended Sentence and Motion to Show Cause,” alleging that the appellant had violated the conditions of his probation because he had not paid restitution and assessments as ordered. After conducting a revocation hearing, the circuit court revoked the appellant’s probation. The appellant filed a motion to reconsider, which the circuit court denied. This appeal followed.

I.

The appellant argues that the circuit court erroneously refused to allow him to earn fifteen dollars per day while he was incarcerated and to allow the total to be credited against the restitution he had been ordered to pay. (Issue II in the appellant’s brief.) Specifically, he contends that the circuit court’s order that he would not receive a credit of fifteen dollars per day for each day he was incarcerated violated Rule 26.11(i)(l)(i), Ala. R.Crim. P. In his motion to reconsider, the appellant requested that the circuit court reconsider its decision that he could not earn fifteen dollars per day for each day served. However, he did not allege that he was entitled to earn fifteen dollars for each day served toward the restitution he owed or that the circuit court’s ruling violated Rule 26.11(i)(l)(i), Ala. R.Crim. P. Therefore, he did not properly preserve that specific argument for our review. See Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998) (holding that the general rules of preservation apply to probation revocation proceedings). Moreover, the Rule does not provide for credit for restitution. Although some subsections of Rule 26.11(i), Ala. R.Crim. P., refer to both fines and restitution, Rule 26.11(i)(1)(i), Ala. R.Crim. P., by its very language, is limited solely to fines. Therefore, the appellant’s argument is also without merit.

II.

The appellant also argues that the circuit court should have ordered that his wages be garnished rather than revoking his suspended sentence. (Issue III in the appellant’s brief.) However, he did not present this argument to the circuit court. Therefore, it is not properly before this court. See Owens, supra.

III.

Finally, the appellant argues that the circuit court erred because it did not give him credit “for all time [he] served prior to his conviction and prior to his trial and prior to his revocation hearing.” (Issue I in the appellant’s brief at p. 4.) The May 14, 1998, sentencing order specifically, stated: “The Defendant is to receive credit for any time incarcerated on this charge.” (C.R.79.) Therefore, the appellant’s argument regarding credit for the time he served before trial is without merit. However, it appears from the record that the appellant spent time in custody before his probation was revoked. Therefore, his argument concerning credit for time he spent in custody before his probation was revoked may be meritorious. The circuit court did not specifically order that he receive credit for any time he spent in custody before his probation was revoked. In addition, the circuit court denied the appellant’s “Motion to Reconsider,” in which he requested that the circuit court credit him with the time he spent in custody before his probation was revoked. The State argues that, because the appellant was still on probation, he was not entitled to receive credit for any time he spent in custody before the revocation hearing. However, § 15-22-54(d)(3), Ala.Code 1975, provides, in pertinent part:

“If revocation results in a sentence of confinement, credit shall be given for all time spent in custody prior to revocar tion. Full credit shall be awarded for full-time confinement in facilities such as county jail, state prison, and boot camp. Credit for other penalties, such as work release programs, intermittent confinement, and home detention, shall be left to the discretion of the court, with the presumption that time spent subject to these penalties will receive half credit. The court shall also give significant weight to the time spent on probation in substantial compliance with the conditions thereof.”

(Emphasis added.) Based on § 15-22-54(d)(3), Ala.Code 1975, the appellant was entitled to credit for any time he spent in custody before his probation was revoked. Accordingly, we remand this case to the circuit court with instructions that that court credit the appellant with all of the time he spent in custody before his probation was revoked, pursuant to § 15-22-54(d)(3), Ala.Code 1975. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a copy of the circuit court’s written order.

REMANDED WITH INSTRUCTIONS.

WISE, J., concurs; SHAW, J., concurs in the result; COBB, J., concurs in part and dissents in part, with opinion, which McMillan, p.j., joins.

COBB, JUDGE,

concurring in part and dissenting in part.

I concur with the majority’s decision to remand this cause for the trial court to credit Ware with all of the time he spent in custody before his probation was revoked. However, I dissent from the majority’s conclusion in Part I that Ware’s argument that he is entitled to $15 for each day he has served and that that amount should be credited against the restitution he owes is not preserved for appellate review.

In his motion to reconsider the revocation of his parole, Ware asked the trial court to “reconsider [its] decision to revoke the defendant’s suspended sentence and also reconsider this Court’s decision not [to] allow the defendant to be given credit of $15.00 per day for each day served.” (C. 156.) On appeal, citing Rule 26.11(i), Ala. R.Crim. P., Ware argues that “the trial judge [erred] by not allowing [him] to earn fifteen dollars ($15.00) per day while incarcerated for failure to pay restitution.” (Appellant’s brief, p. 5.)

Certainly, Ware’s objection at trial was sufficient to put the trial court on notice of a potential error and to allow the trial court the opportunity to correct that error. Finch v. State, 715 So.2d 906, 912 (Ala.Crim.App.1997) (“An objection must be specific enough to put the trial court on notice of any alleged error and provide the court with an opportunity to correct any error if necessary.”). Moreover, other than the fact that he added a citation to a rule of procedure on appeal, Ware’s argument on appeal is identical to the argument he advanced in his motion to reconsider. I fail to see how this issue is not preserved for appellate review.

Therefore, because I believe the majority should have addressed the merits of Ware’s claim in Part I of. the opinion, I respectfully dissent from that portion of the opinion.

McMILLAN, P.J., concurs.

      . Contrary to the assertion by the dissent, the argument the appellant raises on appeal is not identical to the argument he raised in his motion to reconsider. In his brief to this court, the appellant argues that, because the circuit court revoked his probation solely on the ground that he had not paid restitution, he "should be treated as if he is serving out his time in order to pay restitution and should be given credit for fifteen dollars ($15.00) per day as set out in Rule 26.1 l(i)(l)(i) of the Alabama Rules of Criminal Procedure.” (Appellant’s brief at p. 5.) In his motion to reconsider, the appellant merely requested that the circuit court "reconsider [its] decision not allow the defendant to be given credit of $15.00 per day for each day served.” (C.R. 156.) That request did not include any supporting argument or citation to authority, and it did not include a request that he be treated as if he was serving out his time to pay restitution. Therefore, the motion to reconsider did not squarely present to the circuit court the specific argument he raises on appeal.


author: PER CURIAM. COBB, Judge,

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. R.R.A.)
    CR-01-1048.
    Court of Criminal Appeals of Alabama.
    Aug. 9, 2002.
    Eleanor Brooks, district atty., and Thomas Fields, deputy district atty., for petitioner.
    William R. Blanchard, Montgomery, for respondent.
   PER CURIAM.

The State of Alabama filed this petition for a writ of mandamus directing Judge Johnny Hardwick to rescind his order allowing R.R.A. to be considered for treatment under the youthful offender act (hereinafter referred to as the “YOA”). R.R.A. was indicted for theft of property for allegedly stealing money, an amount totaling $53,443, from Max Federal Credit Union while he was employed at Max Federal Credit Union as an items processing clerk. R.R.A. turned 21 years old on February 5, 2001. The acts occurred between December 11, 2000, and May 17, 2001. The acts began when R.R.A. was under the age of 21 but ended after R.R.A. celebrated his twenty-first birthday. R.R.A. applied for consideration under the YOA. Judge Hardwick held that because R.R.A. was under 21 years of age at the time that the acts forming the basis of the charge began he would consider R.R.A.’s application for treatment under the YOA. The State, arguing that the acts constituted a continuing offense and that R.R.A. did not complete the offense until after he reached the age of majority, objected. After failing to obtain relief in the circuit court, the State filed this petition for a writ of mandamus.

The indictment against R.R.A. charged as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, [R.R.A.], whose name is otherwise unknown to the Grand Jury, did knowingly obtain by deception control over lawful currency and/or coinage of the United States of America, a better description of which is unknown to the Grand Jury, of some value greater than $1,000.00, the property of MAX Federal Credit Union, a government regulated corporation, with intent to deprive the owner of the property, in violation of Section 13A-8-3 of the Code of Alabama.”

R.R.A. was charged with theft by deception. A person commits the crime of theft by deception when he/she “[k]nowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.” See § 13A-8-2(2), Ala.Code 1975.

The State argues in its petition that the offense was a continuing offense and that it was not completed until after R.R.A. reached the age of 21; therefore, the State says, he was not eligible for treatment under the YOA. R.R.A. states in his answer to the petition that there is no binding precedent governing this issue but that it is clear that the Legislature intended that the YOA apply to those individuals charged with crimes that are commenced when the person is in his minority. R.R.A. does not respond to the State’s contention that the offense charged in this ease was a continuing offense.

The Alabama Supreme Court in Griffin v. State, 352 So.2d 847 (Ala.1977), had occasion to determine whether a charge under Tit. 15, § 209 (Recomp.1958), obtaining property by false pretenses, was a continuing offense. The Court stated the following:

“It is settled that an offense may be of a continuing nature. Where the acts, when consolidated, constitute but one offense, that crime should be the one with which the accused is charged.... Similarly, if several acts form but one element of an offense, the offense is not complete until the last of such acts has been performed....
“In the case at bar, the false representation that there were no encumbrances upon the property was made several times. The objective of these representations was to obtain the purchase price of the residence. The payment of the first check was merely partial payment. The representation was repeated and more funds were obtained. Both payments were part of the same transaction.”

352 So.2d at 850. See also State v. Steele, 502 So.2d 874 (Ala.Crim.App.1987), and Home v. State, 453 So.2d 1068 (Ala.Crim.App.1983), rev’d on other grounds, 453 So.2d 1070 (Ala.1984). The former crime of obtaining property by false pretenses is substantially similar to the offense of theft by deception.

Applying the rationale of the Griffin Court, we believe that the crime for which R.R.A. was charged was a continuing offense that started in December 2000 and ended in May 2001. The several acts of theft alleged to have been committed by R.R.A. were part of an overall scheme to steal over $1,000 from Max Federal Credit Union. According to Griffin the offense was not completed until the date of the last act to obtain unauthorized control over the credit union’s money — a date that all parties agree occurred after R.R.A.’s twenty-first birthday.

Section 15-19-1(a), Ala.Code 1975, provides that an individual is eligible for treatment under the YOA if, “[he is] charged with a crime which was committed in his minority” (emphasis added). “A crime is committed only when all of its essential elements are present and complete.” Griffin, 352 So.2d at 850, citing Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943) (emphasis added). All of the elements of the offense charged in the indictment were not completed until after R.R.A. celebrated his twenty-first birthday.

Therefore, according to prior caselaw and § 15-19-1, Ala.Code 1975, R.R.A. was not eligible for treatment under the YOA. Judge Hardwick’s ruling was erroneous. The State has established all of the prerequisites for the issuance of this writ. Therefore, this petition is due to be, and is hereby, granted.

PETITION GRANTED.

McMILLAN, PH., and BASCHAB and SHAW, JJ., concur; COBB, J., dissents; WISE, J., recuses herself.

COBB, Judge,

dissenting.

I disagree with the majority’s decision to grant the State’s petition for a writ of mandamus. When Judge Hardwick determined that R.R.A. could be considered for treatment under the Youthful Offender Act (“YOA”), § 15-19-1, Ala.Code 1975, he exercised the discretion expressly granted to him by the statute. I do not believe the cases cited by the majority establish that Judge Hardwick abused his discretion. Accordingly, the petition should be denied.

In Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975), the Alabama Supreme Court explained the purpose of and rationale for the YOA:

“The Youthful Offender Act is intended to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction. It is designed to provide them with the benefits of an informal, confidential, rehabilitative system. A determination that one is a youthful offender (1) does not disqualify the youth from public office or public employment, (2) does not operate as a forfeiture of any right or privilege, (3) does not make him ineligible to receive any license granted by public authority, and (4) shall not be deemed a conviction of crime; and (5) the record shall not be open to public inspection except upon permission of the court.”

294 Ala. at 363, 317 So.2d at 561 (1975).

The Court further observed:

“[Youthful-offender proceedings] are not criminal in nature and therefore are not subject to the constitutional mandate of trial by jury. Youthful offender adjudications are special proceedings designed to protect persons in a certain age group, heretofore tried as adults, from the stigma and often harmful consequences of the criminal adjudicatory process. It is a manifestation of the legislature’s judgment that while persons are still young they may more readily and appropriately respond to methods of treatment which are more rehabilitative, more correctional and less severe than penalties to which adults are exposed. It is an extension, so to speak, of the protective juvenile process.”

294 Ala. at 365, 317 So.2d at 562-63.

It is well established that the decision to grant or to deny youthful-offender status rests solely with the trial court. E.g., Hart v. State, 612 So.2d 520, 525 (Ala.Crim.App.), aff'd, 612 So.2d 536 (Ala.1992).

I am aware that in Griffin v. State, 352 So.2d 847 (Ala.1977), the Alabama Supreme Court held that, if several acts form one element of a charged offense, the offense is not deemed to be complete until the last of those acts has been performed. However, I do not agree that Griffin and the other cases cited by the majority control the disposition of this issue. The majority has cited no authority, and my research has disclosed none, for the proposition that the rule of law established in Griffin applies to YOA cases. Moreover, the YOA statute and caselaw support the opposite finding — that the rule of law established in Griffin does not apply to YOA cases.

As noted above, youthful-offender proceedings are special proceedings, the purpose of which is to protect some of society’s younger members from the severe consequences of the adult criminal process. Youthful-offender proceedings are not criminal in nature. Recognizing that youthful-offender proceedings are not criminal in nature, the Alabama Supreme Court has held that certain requirements of adult criminal proceedings are not necessary in youthful-offender proceedings. For example, in Ex parte T.B., 698 So.2d 127 (Ala.1997), the Court held that the requirement in § 12-21-222, Ala. Code 1975, that accomplice testimony be corroborated does not apply in a youthful-offender adjudication. The Alabama Supreme Court has also held that, because youthful-offender proceedings are not criminal proceedings, they “are not subject to the constitutional mandate of trial by jury.” Raines v. State, 294 Ala. 860, 365, 317 So.2d 559, 562 (1975).

Following the rationale of Raines and Ex parte T.B., I decline to hold, as the majority does, that we are required to apply Griffin to youthful-offender proceedings in general and to this offender specifically. The parties do not dispute that R.R.A. committed some of the acts while he was under the age of 21. I firmly believe that the expressed purposes of the YOA would be far better served by permitting a trial court to consider the application of the YOA to an offender whose unlawful acts began while he was in his minority, even if the unlawful acts that formed the basis of the crime continued past the offender’s twenty-first birthday.

I submit that, when it created the YOA to protect young offenders from the harshness of the adult criminal system, the Legislature did not have in mind the precise fact situation presented by this case. Therefore, the YOA does not specifically address whether youthful-offender status could be considered when unlawful acts that form the basis for a charge begin while the offender is under the age of minority but are completed after the offender reaches the age of majority. Therefore, this Court is obligated to resolve this issue based on established legal principles, in light of the legislative intent of the YOA. I believe that the result reached by the majority here violates the legislative intent and the express purposes of the YOA, as recognized by our Supreme Court in other youthful-offender cases.

Holding that Judge Hardwick had the discretion to consider the application of the YOA to this offender would be consistent with the legislative intent behind the statute, and it would be consistent with Alabama caselaw. I am convinced that the majority has reached the wrong result here. Therefore, I must dissent.


author: ANSTEAD, C.J.

text:
    Ronald REYNOLDS, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-1114.
    Supreme Court of Florida.
    Dec. 19, 2002.
    Rehearing Denied March 26, 2003.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Richard E. Doran, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Daniel A. David, Assistant Attorney General, Tallahassee, FL, for Respondent.
   ANSTEAD, C.J.

We have for review Reynolds v. State, 784 So.2d 509 (Fla. 1st DCA 2001), based on express and direct conflict with State v. Simbach, 742 So.2d 365 (Fla. 2d DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We conclude that section 828.12(2), Florida Statutes (1997), prohibiting cruelty to animals, constitutes a general intent crime, and we approve the First District Court of Appeal’s decision in Reynolds rejecting the petitioner’s due process attack on the statute and affirming his conviction.

BACKGROUND

Petitioner, Ronald Reynolds, was convicted of felony animal cruelty pursuant to section 828.12(2), Florida Statutes (1997), which provides:

A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

On appeal from his conviction to the First District Court of Appeal, petitioner asserted that section 828.12(2) should be construed to require a specific intent, or, if not, should be found facially unconstitutional because it did not include a specific intent element. Reynolds v. State, 784 So.2d 509, 510 (Fla. 1st DCA 2001).

The district court rejected petitioner’s assertions, and concluded first that the plain language of section 828.12(2) did not require specific intent, or in other words, the statute did not require the defendant to “commit an act intending to cause a cruel death or excessive or repeated unnecessary pain or suffering.” Id. Judge Webster, writing for the court, explained:

As appellant correctly notes, the clear language of the statute requires only that one “intentionally commit[] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering” to be guilty of the offense. It does not require that one commit an act intending to cause a cruel death or excessive or repeated unnecessary pain or suffering. Historically, the former has been called a “general intent” crime, and the latter has been called a “specific intent” crime.

Id. at 511.

Further, in determining that specific intent was not constitutionally required, Judge Webster explained:

The fact that section 828.12(2), Florida Statutes (1997), requires only general, rather than specific, intent does not, as appellant argues, necessitate the conclusion that the statute is unconstitutional. (We note that appellant fails to identify any particular provisions of either the state or the federal constitution that are supposedly violated by this statute.) Our supreme court has held:
It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result. ...
The question of whether conviction of a crime should require proof of a specific, as opposed to a general, criminal intent is a matter for the legislature to determine in defining the crime. The- elements of a crime are derived from the statutory definition.
State v. Gray, 435 So.2d 816, 819-20 (Fla.1983). The legislature has, by plain language, declared that one is guilty of the crime proscribed by section 828.12(2) regardless of whether he or she acted with the specific intent to inflict upon an animal a cruel death or excessive or repeated unnecessary pain or suffering.

Id. The district court affirmed the conviction and held that (1) section 828.12(2) only required general intent, and (2) the lack of a specific intent element in section 828.12(2) did not render the statute facially unconstitutional. Id. at 510.

Simbaeh

In contrast to the First District’s decision, the Second District in State v. Simbach, 742 So.2d 365 (Fla. 2d DCA 1999), held that section 812.12(2) did require proof of a specific intent of cruelty. In Simbaeh, the trial court granted defendant’s motion to dismiss felony animal cruelty charges under section 828.12 “because [the defendant] did not intend for the animal to endure a cruel death or any unnecessary pain or suffering.” Simbach, 742 So.2d at 366. In a brief analysis, the Second District concluded, “We agree with the trial court’s interpretation of section 828.12 as requiring a specific intent to cause a cruel death or excessive or repeated infliction of unnecessary pain or suffering.” Id.

ANALYSIS

The conflict between the Simbach and Reynolds decisions is whether section 828.12(2) . requires that an alleged offender have a specific intent to bring about a cruel death or unnecessary pain and suffering of an animal. We agree with Judge Webster’s conclusion in Reynolds that the Legislature, by the plain language of the statute, intended for section 828.12(2) to operate as a general intent crime.

Relying on State v. Huggins, 802 So.2d 276 (Fla.2001), petitioner argues that the word “intentionally” as used in section 828.12(2) should modify the rest of the phrase as well, such that a person would not be criminally liable unless the person actually intended a “cruel death, or excessive or repeated infliction of unnecessary pain or suffering.” Petitioner’s reliance on Huggins, however, is misplaced, because the statutory phrase at issue in Huggins is entirely distinguishable. In Huggins, we interpreted the language in the Prison Re-leasee Reoffender Act, which defined a prison releasee reoffender as a defendant who “commits, or attempts to commit” a “burglary of an occupied structure or dwelling.” See id. at 277-78 (interpreting language of section 775.082(8)(a)(1)(q), Fla. Stat. (1997)). We determined that the term “occupied” in the phrase “occupied structure or dwelling” modified both the term “structure” and “dwelling.” We likened the phrase “occupied structure or dwelling” to other short phrases where an adjective modifies a subsequent list of nouns:

Phrases constructed like the phrase at issue, however, are commonly construed to mean that the adjective modifies subsequent nouns, for example, “qualified man or woman” and “governmental fine or penalty” mean “qualified man or qualified woman” and “governmental fine or governmental penalty, respectively.”

Id. at 278. However, the phrase in section 828.12(2) is unlike the phrase in Huggins because it does not involve an adjective immediately followed by a list of nouns. Hence, we find Huggins inapposite.

INTENT

The Legislature generally has broad authority to determine any requirement for intent in the definition of a crime. The Legislature is vested with the authority to define the elements of a crime, and therefore “determining whether scienter is an essential element of a statutory crime is a question of legislative intent.” Chicone v. State, 684 So.2d 736, 741 (Fla.1996). Further, it is well settled that legislative intent is the polestar that guides a court’s statutory construction analysis. See State v. Rife, 789 So.2d 288, 292 (Fla.2001); McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998). In determining the Legislature’s intent, we look first at the statute’s plain language. See, e.g., Hawkins v. Ford Motor Co., 748 So.2d 993, 997 (Fla.1999); Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898; 900 (Fla.1996).

Section 828.12(2) plainly states: “A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree ....”§ 828.12(2) (emphasis added). The meaning of the language that the Legislature selected to describe any required intent in this statute is both plain and unambiguous. Moreover, from a common sense reading of the statute, it is clear that the First District’s interpretation is correct. The language of the statute expressly requires only that the defendant “intentionally commit an act,” with the word “intentionally” modifying the phrase “commit an act.” Hence, the Legislature has expressed no intent to create an additional element requiring proof that an alleged offender acted with the mental intent to inflict a cruel death or unnecessary suffering.

Furthermore, if the Legislature wanted the statute to include the specific intent to cause a cruel death or suffering, they could have specifically said so. Notably, section 828.12(2) previously provided:

A person who tortures any animal with intent to inflict intense pain, serious physical injury, or death upon the animal is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.

§ 828.12(2), Fla. Stat. (1993) (emphasis added). This version of the statute did provide for specific intent to inflict pain, injury, or death. Thus, the Legislature clearly knew how to draft the statute so that the act would not be criminal unless the defendant had acted with the specific intent to inflict intense pain, serious physical injury, or death upon an animal. In 1994, however, the Legislature amended the statute to read in its present form. See ch. 94-339, § 5, at 2436, Laws of Fla. As amended, the statute no longer requires that a person act with the specific intent to inflict intense pain or death. Rather, the statute simply requires that the person “intentionally commit[] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done.” Id. (emphasis added). See also § 828.12(2), Fla. Stat. (1997).

Reynolds further contends that we should imply a requirement of specific intent under the reasoning of our opinion in Chicone v. State, 684 So.2d 736, 737-38 (Fla.1996), wherein we examined section S93.13(1)(f), Florida Statutes (1991) (possession of controlled substance), and section 893.147(1), Florida Statutes (1995) (possession of drug paraphernalia). However, in Chicone, both statutes were silent as to whether a scienter element was required, i.e., that knowledge of the presence of illicit drugs or paraphernalia was a necessary element of either crime. Under those circumstances, and based on the nature of the offenses, we held that the Legislature intended guilty knowledge associated with the possession to be an element of both crimes and that the State must prove that a person in possession of the illicit items knew that they were in his or her possession. See 684 So.2d at 744.

In particular, we noted:

The United States Supreme Court has stated that offenses that require no mens rea generally are disfavored, and has suggested that some indication of legislative intent, express or implied, is required to dispense with mens rea as an element of a crime. There is no such indication of legislative intent to dispense with mens rea here. Our holding depends substantially on our view that if the legislature had intended to make criminals out of people who were wholly ignorant of the offending characteristics of items in their possession, and subject them to lengthy prison terms, it would have spoken more clearly to that effect. Interpreting the statutes as dispensing with scienter would “criminalize a broad range of apparently innocent conduct. ...”
... We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. ... As all agree, including the State, the legislature would not ordinarily criminalize the innocent possession of illegal drugs.

Id. at 743-44 (footnote and citations omitted). Thus, our holding in Chicone was based on our view that the Legislature would not “make criminals out of people who were wholly ignorant of the offending characteristics of items in their possession, and subject them to lengthy prison terms” without explicitly stating this intent. Id. at 748.

However, as noted above, Chicone involved statutes that were silent as to the requisite intent. In the instant case, there is an intent expressly provided for in the statute. A person must “intentionally commit[] an act” that results in an animal’s cruel death or causes an animal an excessive amount of suffering. § 828.12(2), Fla. Stat. (1997). Thus, unlike the situation in Chicone, here the Legislature was not silent on the subject of intent in drafting section 828.12(2).

Finally, petitioner argues that even if section 828.12(2) is “written in language which sounds like it requires only general intent,” we must, nonetheless, read specific intent into the statute for it to be constitutional. Petitioner’s argument is general in nature, but apparently predicated on due process concerns of notice. We have previously stated that “[i]t is within the authority of the legislature to dispense with specific criminal intent when defining crimes.” State v. Bussey, 463 So.2d 1141, 1143 (Fla.1985); see State v. Gray, 435 So.2d 816, 819-820 (Fla.1983). Here, the Legislature has acted within that authority and has put potential offenders on express notice of the intent required to violate section 828.12(2). That the statute contains a requirement of a general intent to commit an act that is obviously reasonably related to the harm sought to be avoided, rather than a more specific intent, is a choice for the Legislature. Therefore, we conclude the lack of a provision requiring specific intent to inflict pain does not render the statute unconstitutional.

CONCLUSION

Based on the plain language of the statute, we hold that the First District was correct in its analysis and conclusion both as to intent requirements of section 828.12(2), Florida Statutes (1997), and the statute’s constitutionality. We approve Reynolds and disapprove Simbach to the extent that it holds that section 828.12(2) requires specific intent.

It is so ordered.

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

      . See also Craig I. Scheiner, Crimes Against Nonhuman Animals and Florida’s Courts 1889-2001, Fla. B. J. Nov. 2001, at 52, 53 (explaining the conflict between Reynolds and Simbaeh).

      . Petitioner suggests that we read the statute as "[a] person who intentionally commits an act to any animal which [intentionally] results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering.” However, not only would this result in the insertion of a word that is not present, it would also change the meaning of the statute. When construing statutes, courts “are not at liberty to add words to statutes that were not placed there by the Legislature.” See Hayes v. State, 750 So.2d 1, 4 (Fla.1999).

      . Section 828.12 was amended as follows:
      (1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily er-cruelty beats? mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.
      (2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, A-persan-who tortures any animal with- intent to inflict ■intense pafav serious physical injury, — er death upon-the animal is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.
      (3)A veterinarian licensed to practice in the state shall be held harmless from either criminal or civil liability for any decisions made or services rendered under the provisions of this section. Such a veterinarian is, therefore, under this subsection, immune from a lawsuit for his part in an investigation of cruelty to animals.
      Ch. 94-339, § 5, at 2436, Laws of Fla.

      . Petitioner argues that the law requires a specific intent element because "Florida has no general prohibition against killing an animal” and he describes a host of situations where people who have legally killed an animal would allegedly be held criminally liable, such as hunters, fishers, pest control workers, slaughterhouse workers, and animal shelter employees. This argument is without merit for two reasons. First, there is a general prohibition against unnecessarily killing an animal in Florida. Section 828.12(1), Florida Statutes (1997), provides that a person who "unnecessarily mutilates, or kills any animal ... is guilty of a misdemeanor of the first degree.” Therefore, unnecessarily killing an animal in Florida is, at a minimum, a punishable misdemeanor.
      Moreover, we have already held that the type of concerns petitioner raises are more appropriately addressed to the Legislature. See Wilkerson v. State, 401 So.2d 1110, 1112 (Fla.1981) ("Appellant has raised some difficult questions concerning the applicability of this statute [section 828.12] to hunters, fishermen, and pest exterminators. We believe that these hypothetical questions are more properly addressed to the legislature than to the courts.”) Furthermore, as one commentator has noted, anti-cruelty statutes
      are intended to protect animals from the kinds of behavior that no responsible hunter or farmer would defend.... Unless society deems these practices unacceptable, anti-cruelty laws will not prevent animals from being hunted, raised and killed for food, used in entertainment, or used in research laboratories. Prosecution of animal cruelty cases is at the discretion of the prosecutor and is usually reserved for extreme cases.
      Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An Overview, 5 Animal L. 69, 75-76 (1999).

      . Petitioner raises two additional arguments that we decline to address because they are beyond the scope of the conflict in this case and they were not reached by the decision below.