author: MURDOCK, Judge. PITTMAN, Judge,

text:
    James Michael THOMPSON, Jr., et al. v. Dayna M. CASE.
    2000357.
    Court of Civil Appeals of Alabama.
    Aug. 23, 2002.
    Mark D. Ryan, Bay Minette, for appellants.
    Floyd C. Enfinger,- Jr., Montrose, for appellee.
   On Application for Rehearing

MURDOCK, Judge.

This court’s original opinion of January 11, 2002, is -withdrawn, and the following is substituted therefor.

This appeal concerns the estate of James Michael Thompson, Sr. (“the decedent”), who died intestate on May 24,1998. On September 1, 1998, Dayna M. Case petitioned the Baldwin County Probate Court for letters of administration; Case averred that she had been the common-law wife of the decedent, and she identified herself, the decedent’s six children, the decedent’s four siblings, and his surviving mother as potential heirs of the decedent. Consistent with Alabama’s Probate Code, §§ 43-2-1 et seq., Ala.Code 1975, the probate court, on October 26, 1998, issued letters of administration to Case; the other potential heirs were not given advance notice of Case’s petition for letters of administration. In February 1999, Case filed an inventory of the estate; that inventory was amended in March 1999.

Sheryl Lynn Fretwell, one of the sisters of the decedent, filed what she styled a “Counter-Petition” in the probate court on March 25, 1999, seeking the revocation of the letters of administration that had been issued to Case and the issuance of new letters of administration to Fretwell. In her counter-petition, Fretwell alleged that Case had not been the common-law wife of the decedent and that she had procured the letters of administration by fraudulent means. Case moved to dismiss or to strike the counter-petition; citing Ala. Code 1975, § 43-2^43(b), Case asserted that Fretwell had waived any right she might have had to administer the estate because she had failed to apply for letters of administration within 40 days of the decedent’s death. The probate court granted Case’s motion to dismiss or to strike on April 22,1999.

On May 6, 1999, three of the decedent’s children, James Michael Thompson, Jr., Chastity Coleman, and Eric Shane (“the heirs”), along with Fretwell, filed a petition to remove the administration of the decedent’s estate to the Baldwin County Circuit Court. Fretwell and the heirs also moved for a preliminary injunction preventing Case from using a vehicle that had been owned by the decedent; they also filed a “Complaint” requesting that Case be declared not to have been the common-law wife of the decedent and that she be removed as administratrix based upon her having allegedly committed waste of the assets of the decedent’s estate and having allegedly fraudulently misrepresented that she had been the decedent’s wife. The circuit court granted the removal petition and entered the preliminary injunction.

Case filed a motion to dismiss the “Complaint” filed by Fretwell and the heirs, primarily contending that Fretwell’s previous challenge to Case’s appointment had been rejected by the probate court and should not be permitted in the circuit court. Case also moved to dissolve the preliminary injunction because no bond had been ordered or posted. On March 22, 2000, the circuit judge who had been assigned the case recused himself, citing his personal knowledge of the parties and the potential heirs, and the case was assigned to another judge. Case then answered the complaint and filed a motion to dismiss, arguing that the heirs lacked standing, that the probate court’s April 22, 1999, order had not been appealed, and that that order was entitled to “full faith and credit” in the circuit court. On November 14, 2000, the circuit court granted Case’s motion to dismiss.

The heirs appealed to the Alabama Supreme Court from the circuit court’s judgment granting Case’s motion to dismiss. The appeal was transferred to this court by the Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975.

Among other things, the heirs argue on appeal that the “Complaint” they filed in the circuit court was proper and timely under Alabama’s Probate Code. They point to Ala.Code 1975, § 43-2-290, which provides that “[a]n administrator ... may be removed and his letters revoked” on several bases, including “when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate” and “[t]he wasting, embezzlement or any other maladministration of the estate.” In response, Case urges this court to affirm the trial court’s judgment on the ground that, under Ala.Code 1975, § 43-2-43(b), the heirs relinquished their right to serve as administrators or admin-istratrices because their effort to remove her as administratrix came after the expiration of the 40-day period prescribed in that statute. Section 43-2^13 states:

“If no person entitled to the administration of the estate, according to the first three subdivisions of subsections (a) or (b) of section 43-2-42[ ], applies for letters within 40 days after the death of the intestate is known, the persons so entitled must be held to have relinquished their right to the administration.”

Although § 43-2-43(b) does state that persons accorded a priority right to administer an estate under § 43-2^42(a)(l) through (a)(3), Ala.Code 1975, relinquish “their right to the administration” if they do not apply for letters of administration within 40 days after the death of a decedent-is known, this language has consistently been interpreted to mean only that such persons relinquish their priority under § 43-2-42(a)(l) through (a)(3). See Williams v. Tolbert, 519 So.2d 500 (Ala.1988); Gilmore v. Roberson, 273 Ala. 230, 139 So.2d 604 (1962). Neither Curtis v. Burt, 34 Ala. 729 (1859), nor Starlin v. Love, 237 Ala. 38, 185 So. 380 (1938), support Case’s argument; those cases merely provide that one who holds a priority right to appointment may not assert that priority as a ground to remove a duly appointed administrator or administratrix, unless the person holding the priority right applied for letters of administration within the 40-day time limit proscribed by § 43-2-43(b).

Moreover, nothing in § 43-2-43(b) deprives an interested party of the right to seek the removal of an administrator or administratrix on the grounds set forth in Ala.Code 1975, § 43-2-290. See, e.g., Williams, 519 So.2d at 501 (“If [the admin-istratrix] is unfit to serve, for whatever reason, it would be proper to remove her on that basis, but it is not proper to revoke her letters so as to give effect to a preference when the person holding the preference has waived it.”). We note that the heirs have alleged grounds for removal that arguably qualify under § 43-2-290, including fraud and waste of the assets of the estate.

Case also argues that the “appeal” of this case from probate court to circuit court failed to comply with the time restrictions imposed by Ala.Code 1975, § 12-22-21(2). However, the heirs did not appeal to the circuit court under § 12-22-21(2). The heirs removed this case from the probate court to the circuit court under Ala.Code 1975, § 12-11-41, and filed their complaint for a declaratory judgment, revocation of Case’s letters of administration, and removal of Case as the administratrix. The 42-day time limit set forth in § 12-22-21(2) is inapplicable.

Case also argues that the “Complaint” in which the heirs requested that the circuit court remove Case as adminis-tratrix was not verified by oath as required by § 43-2-293. We note, however, that this issue was not one of the grounds for dismissal asserted in Case’s motion to dismiss. Instead, that motion asserted only grounds of standing, timeliness and related issues that, to the extent they merit discussion, are addressed elsewhere in this opinion. It is that motion that the trial court granted in the order that is the subject of this appeal. The issue of verification, therefore, is one that has not yet been addressed by the trial court; nor is it a jurisdictional defect. It is an issue that, if it is to be addressed, should be addressed in the first instance by the trial court.

Upon removal, the heirs sought a determination by the circuit court as to (1) whether Case was indeed the common-law wife of the deceased, and (2) whether Case had committed waste on or before the heirs’ filing. A determination in this regard that is binding upon the heirs has never been made. The heirs’ declaratory-judgment action did not constitute an untimely appeal and was not due to be dismissed. For the foregoing reasons, we reverse the judgment of the circuit court dismissing the heirs’ petition and remand the cause for further proceedings.

The appellee’s request for an attorney fee on appeal is denied.

OPINION OF JANUARY 11, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED.

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

PITTMAN, J., dissents.

PITTMAN, Judge,

dissenting.

I respectfully dissent. The chronology of events leading to this appeal is as follows: James Michael Thompson, Sr., died intestate on May 24, 1998, leaving six children, four siblings, and his mother. Dayna M. Case, Thompson’s purported common-law-wife applied for letters of administration on September 1, 1998, and the probate court issued letters of administration on October 26, 1998. The proper statutory notice was given that week. The estate inventory was filed in February 1999 and amended in March 1999 (according to the record on appeal, the value of the estate, less outstanding debts, is less than $75,000).

On March 25,1999, one of the decedent’s sisters filed a pleading in probate court styled “Counter-Petition to Revoke Letters of Administration and for Issuance of Letters of Administration.” Case filed a motion to dismiss, alleging that the sister lacked standing to bring the action and that she had waived the right to administer the estate by failing to comply with § 43-2-43(b), Ala.Code 1975. The probate court granted this motion on April 22, 1999; no appeal was taken from the order granting this motion. The six-month time period to file a claim against the estate ran on or about April 23, 1999. See § 43-2-350, Aa.Code 1975. The statutory provision for final settlement would allow the closing of the estate at any time after April 23, 1999, as soon as the outstanding debts were paid. See § 43-2-501, Aa.Code 1975.

By the time three children of the decedent filed their complaint challenging the administratrix and their petition to remove the administration of the estate to circuit court on May 6, 1999, the final settlement would have occurred in estates of similar size. The majority opinion reads § 43-2-290, Ma.Code 1975, to allow such a challenge to occur any time an allegation of fraud, maladministration, or waste is made, without regard to whether the allegation is made within a reasonable time. Athough there is no statute-of-limitations provision in the probate code for challenging the administration of an estate, I cannot believe that the Aabama Legislature intended estates to be frozen within days of final settlement by discontented heirs alleging fraud or waste. This construction of the probate code is not reasonable. I would affirm the trial court’s dismissal of the petition and complaint as being untimely.

      . Fretwell died during the pendency of the proceedings in the circuit court; neither she nor her estate is a party to this appeal.

      . The first three subdivisions of § 43-2-42(a) and (b) provide that the probate court must appoint, as administrator or administratrix, the decedent's (1) surviving spouse, (2) next of kin entitled to share in the distribution of the . estate, (3) largest creditor, or (4) (in counties with a population greater than or equal to 400,000) the county or general administrator, if those persons are willing to serve and are satisfactory.

      . After the 40-day time limit has expired, a person who otherwise would have had a priority right to appointment may still be appointed to administer an estate under § 43-2-42(a)(4) as "such other person as the judge of probate may appoint.” See Gilmore, supra. In fact, the record reflects that Case herself applied for letters of administration in this case on September 1, 1998, more than 40 days after the decedent's death on May 24, 1998.

      . We note that the probate court merely granted Case’s motion to dismiss the petition seeking removal; the court never ruled on the substantive merits of the heirs' claims of fraud and waste.

      . The trial court issued no opinion in connection with the order; the order consisted of a short entry on the case action summary sheet that reads: "Motion to Dismiss Claims and Complaints of Petitioners, granted.”

      . We note the following with respect to pleadings in federal courts:
      "Even if a federal rule or statute requires verification, a failure to comply does not render the document fatally defective. Thus, the filing of an unverified complaint effectively will commence an action under Rule 3 and toll the statute of limitations.... Imperfect verification of a pleading may be corrected by amendment under Rule 15[, Fed.R.Civ.P.,] and is not a jurisdictional defect.”
      5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1339 (2d ed.1990).

      . The heirs were not parties to the proceeding in which the probate court appointed the alleged common-law wife as administratrix. Therefore, any factual finding by the probate court in that proceeding that the administra-trix was the common-law wife of the decedent is not binding on the heirs. White v. Hill, 176 Ala. 480, 58 So. 444 (1912).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    NORTH MONTGOMERY MATERIALS, L.L.C. v. FEDERAL INSURANCE COMPANY and Jinright Construction & Landscaping, Inc. Jinright Construction & Landscaping, Inc. v. North Montgomery Materials, L.L.C.
    2010154.
    Court of Civil Appeals of Aabama.
    Aug. 30, 2002.

      Joseph W. Warren of Capouano, Smith, Warren & Klinner, P.C., Montgomery, for appellant/cross-appellee North Montgomery Materials, L.L.C.
    John Scott Hooper, Montgomery, for ap-pellee/cross-appellant Jinright Construction & Landscaping, Inc.
    R. Brooke Lawson III of Capell & Howard, P.C., Montgomery, for appellee Federal Insurance Company.
   PITTMAN, Judge.

These appeals are from the trial court’s summary judgment for both the defendant and a third-party defendant.

On November 21, 2000, North Montgomery Materials, L.L.C. (hereinafter “North Montgomery”), sued Federal Insurance Company (hereinafter “Federal”), seeking to recover as a supplier of materials under a payment bond issued by Federal involving a public-works project in Montgomery. On January 5, 2001, Federal answered the complaint generally denying the allegations of the complaint and setting forth certain affirmative defenses.

On January 16, 2001, Federal filed a third-party complaint against third-party defendant Jinright Construction & Landscaping, Inc. (hereinafter “Jinright”), asserting a right of indemnity against Jin-right for any sums Federal was forced to pay North Montgomery. On February 5, 2001, Jinright filed an answer denying liability to Federal on Federal’s third-party complaint, a counterclaim against North Montgomery alleging a violation of the Alabama Litigation Accountability Act, § 12-19-270, Ala.Code 1975, and a motion for a summary judgment. North Montgomery filed an answer to Jinright’s counterclaim and a response to Jinright’s motion for a summary judgment. On February 28, 2001, the trial court granted Jinright’s summary-judgment motion.

On March 1, 2001, Federal filed a motion to dismiss, or, in the alternative, for a summary judgment. North Montgomery filed a response to Federal’s motion, and on March 26, 2001, the trial court granted Federal’s motion and entered a summary judgment. On April 2, 2001, North Montgomery filed a motion to alter, amend, or vacate judgment as to each summary judgment. On April 10, 2001, the trial court denied both motions. On August 21, 2001, the trial court dismissed Jinright’s counterclaim with prejudice for failure to appear. Jinright filed a motion to reconsider on August 31, 2001, and the trial court denied the motion on October 5, 2001.

North Montgomery filed its notice of appeal on November 13, 2001, and on November 19, 2001, Jinright filed a cross-appeal from the trial court’s denial of Jin-right’s motion to reconsider the dismissal of the counterclaim.

I.

Before we address the main arguments of the parties, we must dispose of two matters. First, Federal contends that North Montgomery’s appeal was not timely-

Federal contends that North Montgomery did not file its notice of appeal within the 42 day period provided by Rule 4(a), Ala. RApp. P. Federal argues that Jin-right’s August 31, 2001, “motion to reconsider” should be characterized as a Rule 60(b), Ala. R. Civ. P., motion for relief from a judgment or an order. If it were considered to be such a motion, Federal argues, then it would not have tolled the time for appeal from the trial court’s order dismissing Jinright’s counterclaim, which would be a final judgment. Ingram v. WAAY Television, 394 So.2d 65, 66 (Ala.Civ.App.1981).

North Montgomery argues that Jin-right’s “motion to reconsider” should be considered a Rule 59(e), Ala. R. Civ. P., motion to vacate the trial court’s judgment dismissing Jinright’s counterclaim. If it were so considered, North Montgomery argues, then, assuming the Rule 59(e) motion was filed within 30 days of the entry of the judgment sought to be vacated, the running of the time for filing a notice of appeal under Rule 4, Ala. R.App. P., would be suspended.

The Alabama Supreme Court has previously held that the substance of a motion, and not its style, determines the type or kind of motion it is. See Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191 (Ala.1991). While the Alabama Rules of Civil Procedure do not speak of a “motion to reconsider,” our supreme court has repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e) motions. See Waters v. J.I. Case Co., 548 So.2d 454 (Ala.1989); McAlister v. Deatherage, 523 So.2d 387 (Ala.1988); Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978).

Jinright filed its “motion to reconsider” within 30 days after the trial court dismissed its counterclaim. The trial court denied the motion to reconsider on October 5, 2001. North Montgomery appealed within 42 days of that denial. The appeal was timely.

The next matter is the fact that Jinright filed a notice of appeal from the trial court’s denial of its “motion to reconsider.” However, in the brief Jinright has submitted on appeal, it argues that the trial court was correct in granting both its and Federal’s motions for a summary judgment.

No other party to this appeal has filed a motion to dismiss Jinright’s appeal based on this incongruity. Additionally, none of the parties have been prejudiced by this error. All are aware of the issues presented. In a similar case our supreme court noted:

“[T]he spirit of the rules is reflected in Rule 3(c), [Ala.] R.App. P.: ‘Such designation of judgment or order [i.e., the designation in the notice of appeal of the “judgment ... appealed from”] shall not, however, limit the scope of appellate review’; and in Rule 4(a)(1): ‘On an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court.’ ”

Curtis v. Bill Byrd Auto., Inc., 579 So.2d 590, 592 (Ala.1990). The notice of appeal from the trial court’s denial of Jinright’s motion to reconsider is not supported by any argument in Jinright’s brief. Therefore, we will not address that issue. How-éver, based on the above, we will entertain the arguments of Jinright as to the summary judgment for Jinright and for Federal.

II.

North Montgomery contends that the trial court erred when it entered a summary judgment for Jinright and for Federal. We will address each summary judgment in the order in which it was filed and decided by the trial court.

In its motion for a summary judgment, Jinright argued that any action by North Montgomery was barred by the doctrine of collateral estoppel. Jinright further contended that because North Montgomery had sued Jinright in district court North Montgomery was collaterally es-topped from asserting the present claim against them in circuit court. Collateral estoppel is an affirmative defense. The standard for reviewing a defendant’s motion for a summary judgment based on an affirmative defense is well-established:

“Where, as in this case, the defendant moves for a summary judgment based on an affirmative defense, this Court applies the following standard of review:
“ ‘When there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law, summary judgment is proper. If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate. Rule 56(c), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).’ ”

Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999)(quoting Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052, 1053 (Ala.1986)).

“The elements of collateral estop-pel are: (1) an issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties.” Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala.1990). Jinright, in its motion for a summary judgment, outlines the elements of Dairyland, then proceeds to make the following con-clusory statements:

“(1) The issue in the prior suit is identical to the issue in this case. This suit is for amounts due on account and were pending on October 23, 2000 when the prior suit was filed. (2) The issue was actually litigated. (3) The suit in the prior action was for issues due on account between the parties which is identical to this suit; and (4) the Plaintiff and the Third Party Defendant Jinright are the same parties in privity to the issue that is the heart of the matter litigated.”

Jinright included no discovery materials, no affidavits, no copy of the “prior suit,” nor any other supporting documents. While Jinright may not have made a prima facie showing that there is no genuine issue of material fact and that Jinright is entitled to a judgment as a matter of law, we will assume the trial court found that a prima facie showing was made, and we will review whether North Montgomery has presented a genuine issue of material fact as to any element of the affirmative defense of collateral estoppel.

The first element of the affirmative defense of collateral estoppel is whether the issue presented is identical to the one litigated in the prior suit. North Montgomery argues that the issue in the prior suit was the amount due from Jinright to North Montgomery for materials purchased for use on projects other than the bonded project at the Goode Street School. North Montgomery then asserts that the issue in the instant case is whether Jin-right has paid for the materials purchased for use at the Goode Street School project, thereby invoking the surety provision of the Federal bond. In support of this contention, North Montgomery attached as Exhibit A a series of “scale tickets” for materials clearly designated as going to Goode Street School. North Montgomery then also attached as Exhibit B a series of invoices and “scale tickets” for materials that clearly designate they are going to addresses other than the Goode Street School. This is substantial evidence of a genuine issue of material fact as to whether the issue presented is identical to the one litigated in the prior suit.

The second element of the affirmative defense of collateral estoppel is whether the issue was actually litigated in the prior suit. North Montgomery argued that the prior action was dismissed because it was settled and that, therefore, there had been no actual litigation of the issue in the prior action. Our supreme court has previously held that where a prior suit was dismissed without prejudice by a federal district court and no issue or issues were actually litigated in the prior federal action, the doctrine of collateral estoppel did not bar the plaintiffs claim. See Grow Group, Inc. v. Industrial Corrosion Control, Inc., 601 So.2d 934 (Ala.1992). We conclude that, as matter of law, the issue in the instant case was not actually litigated in the prior suit.

The third element of the affirmative defense of collateral estoppel is whether the resolution of the current issue was necessary to the prior judgment. We need not address this issue because we have previously determined that the issue in the instant case was not actually litigated in the prior suit.

The fourth element of the affirmative defense of collateral estoppel is whether the parties are the same. Here, North Montgomery presented two exhibits — a notice of judgment and a case action summary from the district court case. Both documents clearly show the plaintiff as North Montgomery Materials, L.L.C., and the defendant as Jinright Construction & Landscaping, Inc. No other defendant is listed, and Federal appears nowhere on either form. Jinright argues that it and Federal were in privity and that therefore the parties were substantially similar in both actions. Jinright, however, submitted nothing in support of this argument, and the district court documents submitted by North Montgomery show only Jinright as a party defendant.

It is clear that the trial court erred in entering a summary judgment in favor of Jinright. Federal also filed a motion to dismiss, or, in the alternative for a summary judgment, arguing that because the trial court granted Jinright’s summary-judgment motion based on collateral estop-pel, and because the only way Federal would be liable on the bond is for there to be an enforceable debt owed by Jinright, Federal should be dismissed from the suit, or, in the alternative, summary judgment should be entered in their favor.

Having already found the granting of Jinright’s motion for summary judgment to be in error, we also hold that the granting of the motion to dismiss, or, in the alternative, motion for a summary judgment in favor of Federal, was also error by the trial court.

Based on the above, we reverse the trial court’s summary judgments for Jinright and Federal. We remand to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON, J., concur in the result.


text:
    James L. HARDRIC v. CITY OF STEVENSON et al.
    2010586.
    Court of Civil Appeals of Alabama.
    Aug. 30, 2002.

      Fulton S. Hamilton, Huntsville, for appellant.
    Gary K. Grace and Jennifer M. Matthews of Grace & Associates, Huntsville, for appellees.
   PITTMAN, Judge.

This case arises from the termination of James L. Hardric as a police officer for the City of Stevenson (“the City”).

The City hired Hardric as a police investigator in 1992. He continued in that position until March 1, 1999, when he was suspended by Mayor James W. Matthews and Police Chief Tommy E. Lands. On March 8, 1999, Matthews and Lands gave Hardric a written notice of termination. The written notice alleged that Hardric had violated the City’s written personnel rules .and that he was insubordinate, had intentionally failed or refused to carry out instructions, had willfully disregarded orders, and had falsified information.

The City distributed revised Personnel Rules and Regulations to its employees on September 18, 1998. Among the provisions of those rules was the assurance that employees would be discharged from employment only for good cause and only in accordance with discharge procedures set out in the Rules and Regulations. Matthews and Lands did not follow those Rules and Regulations in terminating Har-dric; specifically they failed to hold a hearing in Hardric’s case as required by the Personnel Rules and Regulations.

On March 15, 1999, Hardric filed a written notice of appeal of his termination with the City. In that notice, Hardric alleged that his employment rights had been violated, asserted that he had not been provided with specific charges for the alleged personnel rules violations, and requested a due process hearing in order to dispute and refute the allegations underlying his termination.

On March 23, 1999, Matthews and Lands finally provided Hardric a written explanation for his termination; the personnel board denied his appeal. The same day, Hardric requested a grievance hearing as authorized by the Personnel Rules and Regulations. On April 14, 1999, legal counsel for the City acknowledged Har-dric’s right to a hearing, and on May 13, 1999, requested that Hardric submit to counsel the name of his nominee to the grievance committee who would hear Har-dric’s case. Hardric submitted the name of his nominee to Stevenson’s legal counsel in a letter dated May 26, 1999. No hearing was ever held and on December 19, 1999, Hardric filed an eight-count complaint with the trial court.

The complaint named not only the City, Matthews, and Lands, but also named the City’s eouncilmen as defendants. Hardric alleged (1) that he had been terminated without first being provided a specific reason for termination and without a hearing as guaranteed in the City’s Personnel Rules and Regulations; (2) that Matthews and Lands had acted willfully and unlawfully and had thereby caused a breach of Hardric’s employment contract; (3) that their actions were based on impermissible considerations of race and were the result of Hardric’s exercising his right of free speech; (4) that the defendants deprived Hardric of his constitutional right to due process by failing to hold a hearing as required by its own personnel rules; (5) that they interfered with Hardric’s business relationship with the City; (6) that they conspired to deny Hardric his protected rights; (7) that they acted in bad faith in terminating his employment; and, (8) that they violated 42 U.S.C. § 1983 in depriving him of his employment without due process.

Through legal counsel, the councilmen filed a motion to dismiss alleging that the complaint failed to state a claim for which relief could be granted and that counts 3 through 6 and count 8 could not be maintained against them as a matter of law. The City filed a motion to dismiss for failure to state a claim, and it also alleged that Hardric’s claim of intentional interference with employment, bad faith, and conspiracy could not be maintained as a matter of law. Matthews and Lands filed a motion to dismiss and argued that the first count did not state a claim for which relief could be granted and that the remaining counts could not be maintained against them as a matter of law. The City also filed a motion to strike Hardric’s claims for punitive damages.

The trial court set the motions for a hearing on May 2, 2000. At the hearing, the trial court requested that the parties brief their positions for the court. The defendants filed a brief in support of their motions to dismiss on May 25, 2000. On June 9, 2000, Hardric filed a brief responding to the motions to dismiss. On February 21, 2001, the trial court issued a written order granting all pending motions to dismiss. On March 21, 2001, Hardric filed a motion to alter, amend, or vacate the judgment. On June 14, 2001, the parties consented to extend the time for ruling on the postjudgment motion pursuant to Rule 59.1, Ala. R. Civ. P., (for 180 days) and again on December 14, 2001 (for an additional 60 days). The trial court never ruled on Hardric’s motion and the motion was denied by operation of law on February 13, 2002. Hardric filed his notice of appeal on March 8, 2002.

Our standard of review of a trial court’s grant of a motion to dismiss is as follows:

“ ‘[A] complaint, like all other pleadings, should be liberally construed, Rule 8(f), [Ala.] R. Civ. P., and ... that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the Plaintiff can prove no set of facts entitling him to relief.’ ”

Seals v. City of Columbia, 575 So.2d 1061, 1063 (Ala.1991), quoting Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985). No presumption of correctness attaches to the trial court’s decision to grant a motion to dismiss. See Jones v. Lee County Commission, 394 So.2d 928 (Ala.1981).

On appeal, Hardric argues that the dismissal of his case was in error because, he says, his complaint asserted a claim for breach of contract and wrongful termination, as well as for violations of due process and 42 U.S.C. § 1983. Therefore, we will not discuss the other claims raised in Hardric’s original complaint, which are waived if not argued on appeal. See Pardue v. Potter, 632 So.2d 470 (Ala.1994). In the first two counts of his complaint, Har-dric asserted that the City, Matthews, and Lands breached the employment contract he held with the City. Hardric argues that because the City had adopted a personnel manual, which gave municipal employees certain procedural rights, including a right to a termination hearing, failure to follow the manual in terminating his employment gives rise to a breach-of-contract claim or to a tort claim for wrongful termination.

Our supreme court has previously held that provisions contained in an employee handbook, coupled with an employee’s continued service after the issuance of the handbook, modify the traditional employment-at-will doctrine. See Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725 (Ala.1987). More specifically, when the employer limits its right to terminate an employee by providing a manual outlining specific procedures that must be followed in order to terminate an employee, violation of these procedures gives rise to a breach-of-contract claim. See Ex parte Graham, 702 So.2d 1215 (Ala.1997) (holding that the county agency’s personnel manual, that established a grievance process was sufficient to constitute a unilateral contract of employment; failure to follow the manual’s procedures gave employee right to assert a breach-of-contract claim). In this case, the crucial issue is whether a municipality may modify its employment-at-will status vis-a-vis its employees by issuing a personnel manual that provides a specific employee-termination procedure.

Our supreme court directly considered this question in Morrow v. Town of Littleville, 576 So.2d 210 (Ala.1991). There, the plaintiff alleged that the town’s “Policy and Procedures Manual” contained provisions for terminating employees and that these procedures had not been followed in terminating his employment. Morrow, at 211. The town defended the action, arguing that the plaintiff had asserted a tort claim for wrongful termination, and that the claim was barred by § 11-47-23, Ala.Code 1975. Our supreme court held that the terminated employee had stated a claim for breach of contract against the town and concluded that “an employee handbook by which the employer promises not to discharge employees except by procedures or for causes set forth in the handbook” can be sufficient to create a binding unilateral contract. Morroio, at 212.

The City argues that generally a municipal employee does not have a contractual relationship with the municipality, citing only one case, Whitlow v. City of Birmingham, 689 So.2d 107 (Ala.Civ.App.1996), in support of its position. Whitlow discussed the application of § 8-8-8, Ala.Code 1975, which is the statute providing for prejudgment interest on contract claims, to a municipal employee’s claim that he was due back pay. This court held that the statute applies only to contract actions, distinguishing the employee’s salary as one due under law and not under contract. Whit-low, at 108-9. In that case, this court did not address the issue of when an employment-at-will situation has been modified by a personnel, manual to give employees rights normally found only in employment contracts. We conclude that Whitlow does not apply to this case.

In this case, the facts alleged in Har-dric’s original complaint mirror those adjudicated in Morrow. Hardric states that he was employed before and after the City issued revised Personnel Rules and Regulations for its employees on September 18, 1998. His complaint alleges that his termination on March 8, 1999, did not follow the policies and procedures set forth in the personnel manual. Under the holdings of Ex parte Graham and Morrow, we conclude that Hardric has stated a valid breach-of-contract claim. Therefore, we must reverse the trial court’s judgment granting the motions to dismiss, and remand the cause for further proceedings consistent with this opinion.

As to Hardric’s claim of wrongful termination, we view this court’s decision in City of Gadsden v. Harbin, 398 So.2d 707 (Ala.Civ.App.1981), as controlling. That decision held that a municipal employee may bring a wrongful-termination action. This court determined that “[t]he dismissal of a public employee who is entitled to a pretermination hearing, without such a hearing, is a wrongful act constituting a tort under Alabama law.” Harbin, 398 So.2d at 708. We conclude, therefore, that Hardric stated a valid claim of wrongful termination in his original complaint.

Hardric’s due process and 42 U.S.C. § 1983 claims may be brought pursuant to our decision in Todd v. Kelley, 783 So.2d 31 (Ala.Civ.App.2000). In that case a police officer sued the city, the mayor, and the police chief, alleging wrongful discharge and § 1983 claims. This court determined that the decision of the official holding final policy-making authority with respect to the firing of a police officer, regardless of whether that official is the mayor or the police chief, could subject the city to § 1983 liability. Todd v. Kelley, 783 So.2d at 39-41.

Todd v. Kelley was a review of a summary judgment; this case reviews the trial court’s dismissal of Hardric’s action. The fact that Hardric sued the mayor, the police chief, and the city council is sufficient to put the issue of who had the policy-making authority for firing city personnel before the trial court. The failure to follow the Personnel Rules and Regulations in terminating Hardric’s employment may violate due process and, thus, may subject the City to § 1983 liability under the rationale in Todd v. Kelley. The individuals named may be entitled to state-agent immunity; however, we conclude that his complaint states a valid cause of action sufficient to survive a motion to dismiss. We conclude that because Hardric stated a breach-of-contract claim, a wrongful-termination claim, and a possible due process claim that implicates 42 U.S.C. § 1983, the trial court’s judgment must be reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

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


author: FRY, Judge. LONG, Presiding Judge,

text:
    Andre Levon ASH v. STATE.
    CR-98-2451.
    Court of Criminal Appeals of Alabama.
    Dec. 30, 1999.
    Rehearing Denied Feb. 18, 2000.

      Andre Levon Ash, pro se.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   FRY, Judge.

Andre Levon Ash appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition, in which he challenged a 1996 conviction for robbery in the first degree, and his subsequent sentence of 25 years’ imprisonment. Ash’s conviction was affirmed by this Court in an unpublished memorandum. Ash v. State, 698 So.2d 799 (Ala.Cr.App.1996)(table.) We take judicial notice of the record on direct appeal.

Ash contends that the trial court was without jurisdiction to render the judgment or to impose sentence because, he says, the trial court effectively amended the indictment so that he could be found guilty on proof of fewer facts than alleged in the indictment.

The indictment against Ash read as follows:

“Andre Levon Ash ... did, in the course of committing a theft of lawful money or currency of the United States of America, ..., the property of Christopher Rashon Love and Eric Lashun[] Alexander, use force or threaten the imminent use of force against the person of Christopher Rashon Love and Eric [Lashun] Alexander, with the intent to overcome their physical resistance or physical power of resistance or to compel acquiescence to the taking of or escaping with the property, while the said Andre Levon Ash, was armed with a deadly weapon or dangerous instrument. ...”

(C.R.35.)(Emphasis added.)

The trial court gave the following charge to the jury:

“In order to convict the Defendant the State must prove beyond a reasonable doubt each of the following elements of the offense of robbery in the first degree: (1) That the defendant, Andre Le-von Ash, committed or attempted to commit theft of lawful money of the United States, the property of either Christopher Rashon Love or Eric [Lash-un] Alexander, either or both; (2) That in the course of committing or attempting to commit the theft or in the immediate flight after the attempt or commission, the defendant either used force against the person of Christopher Ra-shon Love or Eric [Lashun] Alexander with intent to overcome their physical resistance or physical power to resist, or threatened the imminent use of force against the person of Christopher Ra-shon Love or Eric [Lashun] Alexander or some other person present with intent to compel acquiescence to the taking of or escaping with the property and; (3) That the defendant was armed with a deadly weapon.”

(C.R.489.)(Emphasis added.)

This Court addressed the substantive merits of this claim in the direct appeal of Ash’s codefendant, Fredrick Eugene Williams. In Williams v. State, 701 So.2d 832, 833-34 (Ala.Cr.App.1997), this Court stated:

“ ‘The trial court has a mandatory duty of instructing the jury orally as to the different and distinguishing elements of the offense charged.’ Davidson v. State, 360 So.2d 728, 730 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978). It is clear that in order for the jury to convict Williams of the offense charged in the indictment, the jury would have to have found him guilty of robbing both alleged victims. See Dobyne v. State, 672 So.2d 1319, 1341 (Ala.Cr.App.1994), on return to remand, 672 So.2d 1353 (Ala.Cr.App.1994), aff'd, 672 So.2d 1354 (Ala.1995), cert. denied, 517 U.S. 1169, 116 S.Ct. 1571, 134 L.Ed.2d 670 (1996); Styles v. State, 474 So.2d 185, 188 (Ala.Cr.App.1985). It is equally clear that if the jury followed the trial court’s instruction, it could have found Williams guilty based on the robbery of either of the alleged victims. In Styles v. State, supra, the trial court explained to the jury that an indictment conjunc-tively alleging crimes against two victims should have alleged the crimes dis-junctively in the alternative. The court’s' instruction effectively amended the indictment, so that instead of alleging crimes against A and B, the indictment alleged crimes against A and!or B. We noted in Styles that actual prejudice was shown when the trial court’s polling of the jury indicated that the conviction was actually based on a crime against just one of the victims; we believe that sufficient prejudice has also been demonstrated in the instant case. The record reveals that only one of the alleged victims in the instant case, Eric Alexander, actually testified at trial. The trial court’s instruction that Williams could be found guilty on proof of fewer facts than alleged in the indictment was improper and unduly prejudiced Williams’s substantial rights.
“In the instant case, the State could properly have chosen to seek indictments on two separate counts of robbery in the first degree. By charging con-junctively the robbery of both victims, the indictment required proof of both robberies in order for the jury to reach a guilty verdict. The trial court’s instruction that only proof of the robbery of either of the alleged victims was necessary to sustain a guilty verdict was reversible error.”

(Emphasis in original.)

As in Williams, the indictment charging Ash required proof of both robberies in order for the jury to reach a guilty verdict. The trial court’s instruction effectively amended the indictment and created a fatal variance. See House v. State, 380 So.2d 940, 942-43 (Ala.1979)(“The policy behind the variance rule is that the accused should have sufficient notice to enable him to defend himself at trial on the crime for which he has been indicted and proof of a different crime or the same crime under a different set of facts deprives him of that notice to which he is constitutionally entitled.”). The trial court’s instruction was improper; it charged the jury on a separate offense requiring a lesser showing of proof from the state than the offense charged and it unduly prejudiced Ash’s substantial rights. Therefore, we conclude that the trial court’s instruction created a fatal variance and the trial court was without jurisdiction to render judgment or to impose sentence in Ash’s case. Hall v. State, 655 So.2d 51 (Ala.Cr.App.1995)(holding that a trial court is without jurisdiction to render judgment or to impose sentence on an offense that is not charged in the indictment).

Accordingly, the circuit court erred in denying Ash’s Rule 32 petition. Its judgment is due to be reversed and the case remanded.

REVERSED AND REMANDED.

McMILLAN and COBB, JJ., concur; LONG, P.J., dissents with opinion; BASCHAB, J., joins dissent.

LONG, Presiding Judge,

dissenting.

I respectfully dissent. The error here— the variance between the indictment and the trial court’s charge to the jury-amounted to a misdescription of an element of the offense that prevented the jury from rendering a “complete verdict” on every element of the offense. Such an error, although constitutional in nature, does not implicate the trial court’s jurisdiction. See Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (an erroneous jury instruction, omitting an element of the offense charged in the indictment, was not a “structural error” and was therefore subject to harmless-error analysis). An error caused by an alleged variance between the indictment and the trial court’s oral charge to the jury must be raised by specific objection in the trial court, or it is waived for purposes of further review. See Biddie v. State, 516 So.2d 846, 846-47 (Ala.1987); Daniels v. State, 523 So.2d 517, 518 (Ala.Cr.App.1987); and Garrison v. State, 521 So.2d 997, 1002 (Ala.Cr.App.1986). Errors that can be waived are not jurisdictional. Accordingly, the error in the trial court’s jury charge in Ash’s case was subject to the grounds of preclusion contained in Rule 32, Ala.R.Crim.P. The circuit court’s summary denial of Ash’s Rule 32 petition was correct, therefore, because Ash’s claim regarding the variance between the indictment and the trial court’s jury charge could have been, but was not, raised at trial and on direct appeal, Rule 32.2(a)(3) and (5), Ala.R.Crim.P., and because Ash’s petition was filed outside the two-year limitations period in Rule 32.2(c), Ala.R.Crim.P. Therefore, I must dissent.

BASCHAB, J., concurs.

      . We note that various spellings for this person’s middle name are used in this record. Lashun is the first spelling used in the indictment, and it is therefore the one we use in this opinion.

      . The record on Ash's direct appeal indicates that as was the case in Williams, only one of the alleged victims, Eric Alexander, actually testified at his trial.

      . Jurisdictional matters may be raised at any time. Rule 15.2(d), Ala.R.Crim.P. Additionally, jurisdictional matters constitute an exception to the limitations period of Rule 32.2(c), Ala.R.Crim.P.


author: JOHNSTONE, Justice. BROWN, Justice

text:
    Ex parte State. (In re Andre Levon ASH v. STATE).
    1991018.
    Supreme Court of Alabama.
    Feb. 8, 2002.

      William H. Pryor, Jr., atty. gen., and Robin Blevins and Sandra J. Stewart, asst, attys. gen., for petitioner.
    Submitted on petitioner’s brief only.
   JOHNSTONE, Justice.

This Court granted the petition of the State seeking certiorari review of the decision of the Court of Criminal Appeals reversing the trial court’s summary denial of a Rule 32, Ala. R.Crim. P., petition filed by Andre Levon Ash. We reverse the decision of the Court of Criminal Appeals and remand this cause with the instruction that the summary denial of the petition be reinstated.

Ash was convicted of one count of first-degree robbery and was sentenced to 25 years’ imprisonment. He appealed on grounds different from the ground asserted in the Rule 32 petition now before us. On that direct appeal, the Court of Criminal Appeals affirmed the conviction in an unpublished memorandum. Ash v. State, (No. CR-95-1037, October 11, 1996) 698 So.2d 799 (Ala.Crim.App.1996) (table).

More than two years after that affir-mance became final, Ash filed the instant Rule 32 petition claiming that the trial court lacked jurisdiction to render judgment or to impose sentence because the trial court, in its instructions to the jury, over Ash’s objections, amended the indictment. The trial court summarily denied the Rule 32 petition. That summary denial, however, was reversed by the Court of Criminal Appeals on the rationale that “the trial court’s instruction created a fatal variance and the trial court was without jurisdiction to render judgment or to impose sentence.... ” Ash v. State, 843 So.2d 210, 213 (Ala.Crim.App.1999). In footnote 3 to that opinion, the Court of Criminal Appeals cited Rule 15.2(d), Ala. R.Crim. P. (“[t]he lack of subject matter jurisdiction ... may be raised ... at any time during the pendency of the proceeding”), and Rule 32.2(c), Ala. R.Crim. P. (excepting from its two-year limitation period the Rule 32.1(b), Ala.R.Crim. P., ground of lack of jurisdiction to render judgment or to impose sentence).

Unless the jury instruction Ash challenges as an amendment to the indictment did, as a matter of law, deprive the trial court of jurisdiction to render judgment or to impose sentence, this Rule 32 petition is subject not only to the Rule 32.2(c) preclusion of grounds not raised within the two-year time limit but also to the Rule 32.2(a)(5), Ala. R.Crim. P., preclusion of grounds “[w]hich could have but [were] not raised on [direct] appeal.... ” We hold that the jury instruction did not deprive the trial court of jurisdiction to render judgment or to impose sentence and that, therefore, Rule 32.2(c) and Rule 32.2(a)(5) did indeed preclude this Rule 32 petition.

The operative facts are simple. The indictment, containing only a single count, charged conjunctively that Ash robbed both Christopher Rashon Love and Eric Lashun Alexander. Over Ash’s objections, however, the trial court instructed the jury that it could convict Ash if the evidence proved beyond a reasonable doubt that Ash robbed either Love or Alexander or both. This instruction permitted a conviction on proof that Ash had robbed only one of the victims even though the single-count indictment conjunctively charged him with robbing both victims.

Ash’s co-defendant, Fredrick Eugene Williams, tried and convicted like Ash in the same proceedings, duly challenged this jury instruction in his direct appeal and won a reversal. Williams v. State, 701 So.2d 832 (Ala.Crim.App.1997). Ash did not. The Williams court followed the analogous case of Styles v. State, 474 So.2d 185 (Ala.Crim.App.1985), which reversed the conviction of the defendant Styles, who, like Williams, had properly challenged a like jury instruction on direct appeal. The Styles court held that the jury instruction constituted an amendment to the indictment and that the amendment prejudiced the substantial rights of the defendant.

Neither Williams nor Styles addressed any issue of whether the instruction deprived the trial court of jurisdiction to render judgment or to impose sentence. Likewise, the case of Biddie v. State, 516 So.2d 846 (Ala.1987), cited by the State in its petition and brief to us, contains no analysis of, or holding on, any issue of the jurisdiction of the trial court. Indeed Bid-die does not contain any analysis of, or holding on, any issue of an amendment to the indictment. In the case now before us, however, we must and will address the issues of whether the jury instruction constituted an amendment to the indictment and, if so, whether the amendment deprived the trial court of jurisdiction.

A caveat about both the majority opinion of the Court of Criminal Appeals now on review and the dissent to that opinion is appropriate. Both the majority and the dissenters mistakenly analyze the issue as a variance. The term variance, for purposes of an objection in a trial, means a variance between pleadings and proof, not a variance between pleadings and instructions. See, e.g., House v. State, 380 So.2d 940, 941 (Ala.1979). See also Turner v. State, 610 So.2d 1198, 1199 (Ala.Crim.App.1992); Daniels v. State, 523 So.2d 517, 518 (Ala.Crim.App.1987); and Tyson v. State, 361 So.2d 1182, 1188 (Ala.Crim.App.1978). The Rule 32 petition now before us does not claim or challenge any variance between the pleadings and the proof. Therefore, the variance cases such as House, cited in the majority opinion of the Court of Criminal Appeals, and Daniels, cited in the dissent there, are not applicable. The issues before us are whether the jury instruction constituted an amendment to the indictment and, if so, whether the amendment deprived the trial court of jurisdiction.

The jury instruction at issue before us, like those in Williams, supra, and Styles, supra, effectively amended the indictment to change the conjunction and to the conjunctions either-or and thus to charge the acts disjunctively instead of conjunctively. Therefore, the jury instruction constituted an amendment to the indictment, as Williams and Styles expressly hold. But did the amendment deprive the trial court of jurisdiction?

Rule 13.5(a), Ala. R.Crim. P., forbids amending an indictment “to change the offense or to charge a new offense not contemplated by the original indictment.” This rule preserves the implementation of Article I, § 6, Alabama Constitution of 1901, guaranteeing “[tjhat in all criminal prosecutions, the accused has a right ... to demand the nature and cause of the accusation; and to have a copy thereof ...” and Article I, § 8, as amended by Amendment 37, Alabama Constitution of 1901, guaranteeing that contested felonies will be charged by grand jury indictment, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 687, 296 So.2d 779, 781 (1974); and Thorn v. State, 39 Ala.App. 227, 227, 98 So.2d 859, 860 (1957); see also Kennedy v. State, 39 Ala.App. 676, 690, 107 So.2d 913, 926 (1958). The fundamental constitutionally guaranteed benefits of an indictment to an accused are “ ‘that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence.’ ” Gayden v. State, 262 Ala. 468, 477, 80 So.2d 501, 504 (1955)(quoting United States v. Simmons, 96 U.S. 360, 371, 24 L.Ed. 819 (1877)).

A valid indictment is the source of the subject matter jurisdiction to try a contested criminal case. Batey v. State, 755 So.2d 593, 595 (Ala.Crim.App.1999); see also Strawbridge, supra, Thom, supra, and Kennedy, supra. Absent a valid indictment, a trial court would lack subject matter jurisdiction to try, to convict, or to sentence a defendant in a contested criminal case. Batey, supra, and Hall v. State, 655 So.2d 51, 52 (Ala.Crim.App.1995). See also Crews v. State, 40 Ala.App. 306, 308, 112 So.2d 805, 807 (1959). Therefore, an amendment which changes the offense or charges a new offense not contemplated by the original indictment would deprive the trial court of jurisdiction over the different or new offense. See Batey, supra, Hall, supra, and Crews, supra.

In the case before us, however, the amendment did not materially change the allegations of a robbery committed against Love and likewise did not materially change the allegations of a robbery committed against Alexander. The amendment changed only the conjunction between the two alleged robberies. The amended indictment, like the original, still notified Ash to prepare to defend against each robbery, even though the amendment did change the effect of any reasonable doubt entertained by the jury and directed to only one of the robberies. Moreover, the amendment did not impair Ash’s ability to plead the judgment in bar to a second prosecution for either robbery, for the trial on the indictment even as amended placed Ash in jeopardy for both alleged robberies. Thus, to this extent, the indictment, even as amended, served both of its fundamental constitutionally guaranteed functions. Gayden, supra. Likewise, to this extent, the amendment did not violate the Rule 13.5(a) prohibition against “chang[ing] the offense or [ ] charg[ing] new offenses not contemplated by the original indictment.” These considerations, together, support the conclusion that the amendment did not deprive the trial court of subject matter jurisdiction over either of the two robberies and therefore did not deprive the trial court of subject matter jurisdiction over both tried together.

Our holding to this effect is independent of any prejudice analysis. We do not hold that the amendment did not prejudice Ash. On the contrary, as we have recounted, the Williams, supra, court specifically held that this very same jury-instruction-indictment-amendment constituted prejudicial error requiring reversal for Ash’s co-defendant, who duly challenged the instruction on appeal. We hold only that the instruction-amendment did not deprive the trial court of jurisdiction to render judgment or to impose sentence and that, therefore, Rule 32.2(c) and Rule 32.2(a)(5) preclude Ash’s challenge to the instruction-amendment even if it was prejudicial error.

Because the ground of Ash’s Rule 32 petition was precluded, the trial court was right to deny the petition summarily. Therefore, we reverse the judgment of the Court of Criminal Appeals reversing the trial court, and we remand the cause to the Court of Criminal Appeals for that court to remand to the trial court for reinstatement of the summary denial entered by the trial court.

REVERSED AND REMANDED.

MOORE, C.J., and SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

HOUSTON and BROWN, JJ., concur in the result.

BROWN, Justice

(concurring in the result).

I agree with the majority’s conclusion that Ash’s claim was not jurisdictional. While a defendant may not be convicted of an offense not charged in the indictment, the indictment here charged the offense of robbery in the first degree, and that is the offense of which Ash was convicted. Thus, I concur in the result to the extent that the majority reverses the judgment of the Court of Criminal Appeals, which held that the circuit court erred in holding that Ash’s claim was procedurally barred pursuant to Rule 32.2(c), Ala. R.Crim. P.

However, I do not wish to join in the majority’s criticism of the Court of Criminal Appeals for its use of the term “variance” in its discussion of the differences between the indictment and the trial court’s oral charge to the jury. While in a criminal case the term “variance” is most often used to describe alleged differences between the indictment and the proof presented at trial, the term is not limited to that usage. Indeed, this Court has itself used the term when considering differences between an indictment and the trial court’s oral charge. See, e.g., Ex parte Washington, 448 So.2d 404, 407 (Ala.1984) (where, when considering the claim of a defendant who had been indicted for the intentional murder of his victim that the trial court had erred in referring to “recklessness” in its oral instructions to the jury, we stated: “Having concluded that the defendant did preserve the alleged error, we must determine whether the oral charge constituted a fatal variance from the indictment.”). We do not have cause to criticize the Court of Criminal Appeals for using that term in the same way we have used it.

In any event, whether we discuss alleged differences between an indictment and the trial court’s oral charge as “constructive amendments” or as “variances,” we should be careful not to casually turn claims of error predicated on such differences into jurisdictional issues, or else most allegations of error in a trial court’s jury instructions will be subject to being fashioned into claims implicating the trial court’s jurisdiction and thus will evade the application of the ordinary rules of preservation and waiver. Call them what you will, claims of a difference between the indictment and the trial court’s instruction, when presented to this Court in the past, have never been treated as jurisdictional, and we have consistently required that those claims be raised in the trial court in order to be preserved for review. In Ex parte Washington, 448 So.2d 404, where, as noted above, this Court stated that such a claim presented the question whether the trial court’s oral charge “constituted a fatal variance from the indictment,” see 448 So.2d at 407, this Court found it necessary first to determine whether the defendant had preserved the alleged error in the oral charge by proper objection at trial, before holding that the trial court committed reversible error when it gave an oral charge on reckless murder in a case where the defendant had been indicted for intentional murder.

Essentially the same issue was presented to this Court in Biddie v. State, 516 So.2d 846 (Ala.1987), where the trial court erroneously charged the jury that it could find the defendant, who had been indicted for intentional murder, guilty of either intentional murder or reckless murder. The defendant failed to object to the difference between the indictment and the trial court’s oral charge. Although the error was not preserved by objection, the Court of Criminal Appeals had held that the trial court’s charge amounted to “obvious error” and had reversed Biddie’s conviction. 516 So.2d at 846. This Court, however, noting its analysis of the “variance” claim for preservation in Ex parte Washington, reversed the judgment of the Court of Criminal Appeals, holding that that court had erred in holding that an objection to the erroneous jury instruction was not required. 516 So.2d at 846-47. We thus remanded the cause for the entry of a judgment affirming the defendant’s conviction.

The lesson of Biddie is obvious: Such claims do not raise jurisdictional issues. In Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), the United States Supreme Court held that a jury instruction that misdefines or omits an element of the charged offense — even an essential element — is susceptible to a harmless-error review. In Neder, the trial court had erroneously instructed the jury, over the defendant’s objection, that it “need not consider” the materiality of a false statement (an essential element of the offense charged in the indictment) because that question was, according to the trial court, not “for the jury to decide.” 527 U.S. at 6, 119 S.Ct. 1827. The erroneous instruction permitted the jury to convict the defendant without making a determination on the element of materiality. The Supreme Court held that the erroneous instruction, which omitted an element of the offense charged in the indictment, did not necessarily render the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Neder, 527 U.S. at 9, 119 S.Ct. 1827. Even though the jury-instruction error effectively withdrew an element of the offense from the jury’s consideration, the Supreme Court held that a harmless-error analysis should be applied in determining whether the error was reversible error.

Under the rationale of Neder, then, where a trial court omits or misdescribes an essential element of the offense in its oral charge to the jury — as happened in Ash’s case when the trial court in its jury instructions eliminated the conjunctive element of the indictment — the conviction must be affirmed if the reviewing court can conclude beyond a reasonable doubt that a rational jury would have found the defendant guilty. Because Ash raised his jury-instruction claim in a Rule 32 petition and the claim did not come before the Court of Criminal Appeals by way of a direct appeal, neither the Court of Criminal Appeals nor this Court is called upon to conduct the harmless-error review contemplated in Neder. However, Neder is nevertheless germane to the question presented in Ash’s case, because the logical ramification of Neder’s holding that a jury instruction that misdefines or omits an element of the charged offense is subject to harmless-error review is that such an error does not implicate the trial court’s jurisdiction. A jurisdictional defect defies analysis by a harmless-error standard and is per se ground for reversal, requiring no consideration of whether the defendant was prejudiced as a result of the error. Thus, the jury-instruction error in Ash’s case, like the jury-instruction error in Neder, was not jurisdictional in nature. Accordingly, Ash’s claim regarding the “variance,” or whatever we choose to call the difference between the indictment and the trial court’s jury charge was, as the circuit court found, procedurally barred by the two-year limitations period in Rule 32.2(c), Ala. R.Crim. P. Moreover, because Ash did not raise the claim at trial or in his direct appeal, it was also procedurally barred pursuant to Rule 32.2(a)(3) and (5), Ala. R.Crim. P.

HOUSTON, J., concurs.

      . Since its decision in Ash's case, the Court of Criminal Appeals has adopted this view. See Baker v. State, 819 So.2d 87 (Ala.Crim.App.2001), overruling Ash v. State, 843 So.2d 210 (Ala.Crim.App.1999).

      . Ash’s codefendant, Fredrick Eugene Williams, was able to obtain a reversal of his conviction based on a claim essentially the same as the one Ash raises in his Rule 32 petition. However, the procedural posture of Williams’s case was different from that of Ash’s when Williams’s conviction was reversed. Williams raised his jury-instruction claim in the trial court, and then pursued the issue on direct appeal. In its opinion on direct appeal, the Court of Criminal Appeals determined that the trial court’s jury instructions unduly prejudiced Williams; thus, the court reversed Williams’s conviction. See
        Williams v. State, 701 So.2d 832 (Ala.Crim.App.1997). Obviously, the procedural bars of Rule 32, Ala. R.Crim. P., were not applicable to Williams’s claim on direct appeal.


author: SHAW, Judge.

text:
    Andre Levon ASH v. STATE of Alabama.
    CR-98-2451.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Andre Levon Ash, pro se.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   On Remand from the Alabama Supreme Court

SHAW, Judge.

Pursuant to the Alabama Supreme Court’s opinion in Ash v. State, 843 So.2d 213 (Ala.2002), this case must be remanded to the circuit court of Marshall County. The Supreme Court stated:

“Because the ground of Ash’s Rule 32 petition was precluded, the trial court was right to deny the petition summarily. Therefore, we reverse the judgment of the Court of Criminal Appeals reversing the trial court, and we remand the cause to the Court of Criminal Appeals for that court to remand to the trial court for reinstatement of the summary denial entered by the trial court.”

843 So.2d at 217 (emphasis added).

However, we note that a judgment of this Court is not final until it issues its certificate of judgment. An application for rehearing filed in this Court and a petition filed in the Alabama Supreme Court for the writ of certiorari stay the issuance of that certificate. See Jackson v. State, 566 So.2d 758 (Ala.1990); Gordon v. State, 710 So.2d 943 (Ala.Crim.App.1998); Pratte v. State, 465 So.2d 483 (Ala.Crim.App.1985); and Rule 41, Ala. R.App.P. The Supreme Court’s reversal of this Court’s judgment in the present case leaves intact the trial court’s summary denial of Ash’s Rule 32 petition. Although we recognize that trial court’s have enough to do without being required to enter unnecessary orders and that it is not necessary to remand this case to the trial court “for reinstatement of the summary denial,” we nevertheless must comply with the Supreme Court’s instructions.

REMANDED WITH DIRECTIONS.

McMILLAN, p.j., and COBB, BASCHAB, and WISE, JJ., concur.


author: COBB, Judge.

text:
    Melvin VINSON, Jr. v. STATE.
    CR-98-1980.
    Court of Criminal Appeals of Alabama.
    May 26, 2000.
    Rehearing Denied July 14, 2000.

      J. William Cole, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   COBB, Judge.

Melvin Vinson, Jr., was tried by a jury and adjudicated guilty of the unlawful distribution of a controlled substance and unlawful possession of a pistol after having been convicted of a crime of violence, see § 13A-12-211 and § 13A-ll-72(a), Ala. Code 1975. Pursuant to the Habitual Felony Offender Act, Vinson was sentenced to 10 years’ imprisonment for his conviction for the unlawful distribution of a controlled substance, and was ordered to pay $100 to the Alabama Crime Victims Compensation Commission, and was fined $1,000 drug-user fee to be retaxed if he completes a drug-rehabilitation program. Upon application of enhancements for the distribution of a controlled substance within three miles of a school or public housing project, see § 13-12-250 and § 13A-12-270, Ala. Code 1975, Vinson was sentenced to an additional 10 years in prison.

For his conviction for the unlawful possession of a pistol by someone previously convicted of a crime of violence, the judge sentenced Vinson to five years in prison and ordered Vinson to pay $100 to the Crime Victims Compensation Commission. The two sentences are to run concurrently. This appeal follows.

This case presents a troubling fact situation, which caused the trial court to grant the appellant’s motion to suppress as to evidence seized as the result of a stale search warrant, but not as to evidence obtained contemporaneous with the pat-down of the appellant. We reverse and remand.

Facts

Two college students were apprehended for selling drugs; they cooperated with police and disclosed that Melvin Vinson was their drug source. On November 21, 1994, as a result of the information provided by the college students, the officers obtained and executed a search warrant for Melvin Vinson’s residence. The affidavit in support of the search warrant stated that the college students told Officer Will-ingham that on November 11, 1994, they had gone to Vinson’s house and were given one pound and three ounces of marijuana on consignment. (R. 30.)

Agent Warren and three other officers went to Vinson’s residence around 8:00 p.m. to conduct their search. (R. 184.) The officer knocked on the door; there was no answer. The officers contacted the apartment manager and secured a key, which they used to enter the apartment. (R. 27.) No one was in the apartment when the officers began the search. (R. 27.) While the officers were conducting the search, they received a telephone call from another agent who told them Vinson had been in Tuscaloosa and was on his way back to Birmingham. (R. 28.)

As the officers were searching Vinson’s residence, they were notified over the radio that a white male was walking up the steps to the back door. (R. 28.) Vinson took one step into his dark apartment and was confronted by four officers who identified themselves as the police. (R. 184.) Vinson threw his hands into the air and dropped a brown leather satchel. Although there was a discrepancy in the record as to exactly where Vinson dropped the leather satchel, it was dropped close to Vinson’s feet, either inside the apartment or outside at the doorsteps of the apartment.

Two officers secured Vinson by taking him by the arm, performing a patdown to ensure he did not have any weapons on his person, and then sat him down. (R. 179, 184.) Officer Warren testified that after Vinson was secured by the two officers, he “picked up the brown satchel that was there and located a handgun in it.” (R. 184-85.) Officer Warren testified that he did not know if he unzipped the bag or not, but he did remember that the bag had to be unzipped. (R. 185.) Officer Warren stated that Vinson was on the porch about half an arm’s length from the door when he dropped the bag. (R. 186.)

Vinson immediately began to make spontaneous voluntary statements as to where he had been and what he had been doing. (R. 190.) The officer testified at trial that “[Vinson] said that he had gotten back from Tuscaloosa and went into two college kids’ apartment and took their property that was in the car.” (R. 191.) The officer stopped him, told him to calm down, and read him his Miranda rights. (R. 191.) Vinson continued to talk. He told the officer that he had gone to Tuscaloosa to see two college kids who owed him $2,100 for some marijuana he had “fronted” them. (R. 191.) However, he said that the students were not home, and because Vinson was unable to collect his money, he decided to take an electric guitar and other electrical equipment from them. Vinson also admitted that he owed money to his supplier. Vinson was afraid his supplier would kill him if he did not get the money. (R. 193.)

Vinson gave the police oral consent to search his vehicle to retrieve the stolen items. Vinson agreed to cooperate with police, but he later refused to cooperate. (R. 194, 195.) After searching records at the National Crime Information Center, the police discovered that Vinson should not have been in possession of a firearm. Several weeks later Vinson was charged and arrested for violating § 13A-11-72, “Certain persons Forbidden to Carry a Firearm.” (R. 195-96.)

Before the trial, the court held a hearing on Vinson’s motion to suppress the evidence seized as a result of the search warrant. Vinson sought to suppress the drug paraphernalia found in his apartment, the pictures taken at the residence, the gun found in his possession, and the statements he made voluntarily during the search. The judge granted, in part, defense’s motion to suppress because he believed that the warrant was deficient and did not contain enough information to support, alternatively, a search based on a good-faith exception. (R. 67.) The judge concluded that the information in the warrant was stale, in that the warrant was not executed within 72 hours of the alleged seeing of any controlled substance within the residence. (R. 67-68.) The affidavit in support of the search warrant stated that drugs were observed in Vinson’s residence on November 11,1994; however, the search warrant was not executed until 8:00 p.m. on November 21, 1994. (C-145-52.) Thus, the trial court held that the search warrant was insufficient.

However, the trial court suppressed only the marijuana, the pictures, and the pipe found in Vinson’s home. The court did not suppress the gun or the statements Vinson made to the police while they were in his home. The court reasoned that because the officers were outside the home when they confronted Vinson, they had a legitimate right to search the bag containing the gun Vinson apparently dropped when the police approached him. (R. 68.) The court also held that Vinson’s statements were admissible because they were made voluntarily after he had been given a Miranda warning. (R. 71.)

I.

Vinson argues on appeal that the trial court erred in denying his motion to suppress the pistol found at his residence and the voluntary statements he made when his residence was being searched by police. Vinson contends that the police obtained and executed a search warrant for his apartment based on information that the trial court ruled was stale and that, therefore, the warrant was not supported by probable cause. Specifically, Vinson asserts that the pistol was in a closed container and was within the curtilage of his home; therefore, he asserts, it was obtained pursuant to the invalid search warrant and should be suppressed.

The State argues that the trial court properly denied Vinson’s motion to suppress in regard to the pistol found in Vinson’s possession. The State asserts that because the pistol was located outside the apartment, it was not found pursuant to the execution of the search warrant. Furthermore, the State also argues that the officers had a legitimate right to search the bag and to seize the gun inside the bag because Vinson had abandoned the property. The State contends that because the officers were forced to confront Vinson upon his return home, they had every right to search Vinson and his belongings in order to secure him and to protect themselves, rather than allow Vinson to remain outside of the home as a possible threat to their safety.

A trial judge’s decision concerning a motion to suppress will not be reversed on appeal unless it is “ ‘manifestly contrary to the great weight of the evidence.’ ” Ex parte Matthews, 601 So.2d 52, 53 (Ala.1992)(quoting Williams v. State, 456 So.2d 852, 855 (Ala.Crim.App.1984)). In reviewing the trial judge’s decision, this court “must make all reasonable inferences and credibility choices in support of the trial court’s ruling.” Allen v. State, 689 So.2d 212, 216 (Ala.Crim.App.1995). See also Loggins v. State, 771 So.2d 1070 (Ala.Crim.App.1999).

Vinson argues that the pistol was seized pursuant to the invalid search warrant because it was located within the cur-tilage of his home. At common law, the concept of curtilage extended the same protection under the law of burglary to the area immediately surrounding a dwelling house as was afforded the house itself. United States v. Dunn, 480 U.S. 294, 299, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). There are four factors to determine if an area is included within the curtilage of the home: “ ‘[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is used, and [4] the steps taken by the resident to protect the area from observation by people passing by.’ ” Ex parte Hergott, 588 So.2d 911, 915 (Ala.1991)(quoting United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)). “Therefore, it is insufficient to rely on one factor, such as proximity, to determine if the area searched was within the curtilage of the home.” Ex parte Hergott, 588 So.2d at 915.

It is certainly reasonable to conclude that the area on Vinson’s back porch is within the curtilage of his home, especially when an officer testified that when Vinson dropped the bag, he was on the wooden porch about “half an arm’s length” from the door.

Furthermore, Vinson argues that the pistol was discovered in a “closed container,” and, therefore, that it was found pursuant to the invalid warrant. The general principle is that closed packages and containers may not be searched without a warrant. United States v. Ross, 456 U.S. 798, 812, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). “ ‘[A]ny container situated within residential premises which is the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal an item of the kind portrayed in the warrant.’ ” Dees v. State, 575 So.2d 1225, 1228 (Ala.Crim.App.1990)(quoting United States v. Gray, 814 F.2d 49, 51, (1st Cir.1987)); see also, United States, v. Young, 909 F.2d 442, 444 (11th Cir.1990).

The gun was found in a closed leather satchel, which the officer had to unzip to discover the gun. In order for the search of the satchel to be lawful, the officers were required to have a search warrant. In this case, the officers did have a search warrant, but that warrant was later determined to be invalid. Therefore, the search of the satchel was illegal because it was conducted pursuant to an invalid warrant that gave the officers no authority to search the satchel.

Another factor that should be considered is “whether the danger to the police justifying the seizure still existed once the officer had custody of the container. If the exigency was gone, a search warrant must be obtained before it may be opened.” United States v. Flippin, 924 F.2d 163, 166 (9th Cir.1991).

Vinson took one step into his dark apartment and was confronted by the four police officers. Vinson dropped the zipped leather satchel containing the gun, and was then secured by two police officers before a third officer had the opportunity to open the leather satchel. It is clear that in this case no exigent circumstances were present, and this satchel should not have been searched without a valid warrant.

Furthermore, the judge granted Vinson’s motion to suppress based on the staleness of the warrant; therefore, to be admissible any evidence obtained must fall within one of the exceptions to search without a warrant.

“ ‘Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968) ] “stop and frisk” situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard, v. State, 335 So.2d 924 (Ala.1976).’ ”

Grace v. State, 683 So.2d 17, 22 (Ala.Crim.App.1996)(quoting Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995)); see also, Chevere v. State, 607 So.2d 361 (Ala.Crim.App.1992).

A. Stop and Frisk

“Under Terry, the lawful scope of a protective patdown is limited ‘to those areas in which a weapon may be placed or hidden.’ Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). ‘The sole justification’ of the patdown under Terry is ‘the protection of the police officer and others nearby.’ 392 U.S. at 29, 88 S.Ct. 1868. If a patdown exceeds the bounds of what is necessary to determine whether the suspect is armed, it amounts to the sort of exploratory search that Terry expressly refuses to authorize, see 392 U.S. at 25-30, 88 S.Ct. 1868, and the fruits of the search must be suppressed. Sibron v. New York, 392 U.S. 40, 65-66, 88 S.Ct. 1889, 20 L.Ed.2d 917, (1968). See e.g., Ford v. State, 680 So.2d 948, 951 (Ala.Crim.App. 1995), cert. denied, 680 So.2d 952 (Ala.1996).”

Warren v. State, 783 So.2d 74, 81 (Ala.Crim.App.1998).

This court has determined that police officers have a right to conduct a protective patdown of a suspect, regardless of the facts giving rise to probable cause to search him. In order to protect themselves, the police have a right to frisk for weapons. “ ‘However, such a search “is limited in scope to a ‘patdown’ of the suspects’ outer clothing and to seizure of hard objects whose size and shape give the officer probable cause to believe they are weapons.” ’ ” Martin v. State, 695 So.2d 141, 143 (Ala.Crim.App.1996)(quoting Smith v. State, 292 Ala. 120, 289 So.2d 816, 818 (1974)).

When Vinson arrived home to find four police officers searching his residence, he raised his hands and dropped a zipped leather satchel. In this case, the officers went beyond the bounds permitted by a lawful stop-and-frisk search. The officers performed a patdown of Vinson in his own home and ensured Vinson was secure. It was not necessary for the officers to unzip and search the leather satchel that was no longer in Vinson’s immediate possession.

B. Search Incident to Lawful Arrest.

The distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons is that a search for weapons in the absence of probable cause to arrest must be limited to what is necessary to discover weapons that might be used to harm the officer or others nearby; a search incident to an arrest, on the other hand, can “involve a relatively extensive exploration of the person.” Mathews v. State, 534 So.2d 1129, 1131 (Ala.Crim.App.1988)

“ ‘When police officers want to search a person’s home they must have either a search warrant or a knowing, voluntary permission, unless the search is incidental to a lawful arrest or there are other circumstances, not present in this case, which justify a departure from the rule.” United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 69 (1951); see Duncan v. State, 278 Ala. 145, 157-58, 176 So.2d 840, 851 (1965); see also Waldron v. United States, 219 F.2d 37, 39 (D.C.Cir.1955). In this case, Vinson was not arrested until several weeks after the search of his residence when the police conducted a search through the National Crime Information Center and discovered that Vinson should not have been in possession of a firearm. (R. 195-96.) Therefore, this search was not pursuant to a lawful arrest.

C. Plain View

“ ‘ “Although an officer may seize contraband which is in plain view without obtaining a warrant, this doctrine applies only when the officer has a legal right to be at his viewpoint.” ’ ” State v. Otwell, 733 So.2d 950, 953 (Ala.Crim.App.1999) (quoting Duck v. State, 518 So.2d 857, 859 (Ala.Crim.App.1987)). The police were in Vinson’s home on a search warrant the trial judge held to be invalid. The police did not have a legal right to be in Vinson’s home; therefore, the plain view exception cannot be applied.

II.

Next, Vinson contends that trial court should have suppressed statements he made to police voluntarily the day of the search. Vinson specifically argues that the statements were the “fruit of the poisonous tree” because the statements resulted from a search warrant obtained without probable cause, and are thus subject to the exclusionary rule. The fruit-of-the-poisonous-tree doctrine dictates that an unlawful search taints not only the evidence obtained at the search, but facts discovered by a process initiated by the unlawful search. See Duncan v. State, 278 Ala. 145, 157-58, 176 So.2d 840, 866 (1965). Vinson’s voluntary statements resulted from the execution of an invalid search warrant; therefore, they should have been inadmissible in evidence because they are “the fruits of the poisonous tree.” See Moore v. State, 650 So.2d 958, 964 (Ala.Crim.App.1994)(citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Furthermore, Vinson’s voluntary statements were the product of a warrantless search and seizure that were not within any of the exceptions to the warrant requirement. See Ex parte Tucker, 667 So.2d 1339, 1349 (Ala.1995). Therefore, because the search and seizure were illegal, the trial judge should have granted Vinson’s motion to suppress the pistol and the voluntary statements he made to police.

Vinson raises six other issues on appeal that we do not need to address given the above holding. For the foregoing reasons, the judgment of the trial court is reversed and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

LONG, P.J., and McMILLAN and FRY, JJ., concur; BASCHAB, J., concurs in the result.

      . The information provided in support of the search warrant was 10 days old.