author: SHAW, Judge. BASCHAB, Judge,

text:
    Vincent Earl BOGLIN v. STATE of Alabama.
    CR-00-1102.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    Rehearing Denied June 21, 2002.

      Vincent Earl Boglin, pro se.
    Bill Pryor, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   SHAW, Judge.

Vincent Earl Boglin appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief.

On August 20, 1999, pursuant to a negotiated plea agreement, Boglin pleaded guilty to theft of property in the second degree. In accordance with the plea agreement, he was sentenced as a habitual offender to 15 years’ imprisonment. As part of the plea agreement, Boglin waived his right to appeal and his right to collaterally attack his conviction; he signed a detailed written waiver entitled “Notice and Waiver of Right to Appeal and Right to Seek Post-Conviction Relief,” which is included in the record before this Court. (C. 49.) Boglin did not appeal. However, on November 15, 1999, Boglin filed the present Rule 32 petition attacking his conviction.

In his petition, Boglin presented a laundry list of claims, including claims that his guilty plea was involuntary, that his waiver of his right to appeal and his right to collaterally attack his conviction was involuntary, and that his trial counsel was ineffective. After receiving a response from the State, the circuit court summarily denied Boglin’s petition. In its order, the circuit court found that the majority of Boglin’s claims — including his claims that his guilty plea and waiver were involuntary and that his trial counsel was ineffective— had been waived by Boglin’s plea agreement.

It is well settled that a defendant may, as part of a negotiated plea agreement, agree to waive his right to appeal “so long as he is fully advised of its implications and he voluntarily agrees to enter into the agreement.” Watkins v. State, 659 So.2d 688, 689 (Ala.Crim.App.1994). See also Dunn v. State, 514 So.2d 1300 (Ala.1987); Watson v. State, 808 So.2d 77 (Ala.Crim.App.2001); Jones v. State, 675 So.2d 69 (Ala.Crim.App.1995); and Gwin v. State, 456 So.2d 845 (Ala.Crim.App.1984). “[A] colloquy with the defendant that reflects that he or she was informed of the right to appeal and that he or she chose to waive this right is sufficient to show a valid and enforceable waiver.” Watson, 808 So.2d at 80. In addition, just like a challenge to the voluntariness of a guilty plea, the issue of the voluntariness of a waiver of the right to appeal will be reviewed on direct appeal if it is first presented to the trial court.

The reasoning behind permitting a defendant to challenge on direct appeal the voluntariness of a waiver of the right to appeal if that issue is properly preserved in the trial court is clear: an agreement that purports to waive a right may be enforced only if that waiver is voluntarily and knowingly entered. Because a waiver must be voluntary, due process requires that a defendant have the opportunity to challenge the voluntariness of that waiver. Due process does not override the basic law of preservation, however, and the issue must first be presented to the trial court before it will be reviewed on direct appeal. Moreover, because a waiver of the right to appeal is part and parcel of the guilty plea itself, an involuntary guilty plea will render the waiver involuntary as well. Therefore, an accused may likewise challenge the voluntariness of the guilty plea on direct appeal if that issue is properly preserved, despite the presence of a waiver.

The question in this case is whether the voluntariness of a guilty plea and the voluntariness of a waiver of the right to appeal and to collaterally attack a conviction may be raised for the first time in a Rule 32 petition, despite the presence of the waiver purporting to bar collateral review. We believe the same reasoning this Court has used in deciding to review vol-untariness issues on direct appeal should likewise be applied to voluntariness issues raised for the first time in Rule 32 petitions.

The Alabama Supreme Court has held that the voluntariness of a guilty plea may be raised for the first time in a Rule 32 petition. See Cantu v. State, 660 So.2d 1026 (Ala.1994). The presence of a waiver of the right to collateral review should not bar review of the voluntariness of a guilty plea because, as noted above, an involuntary guilty plea will necessarily render the waiver involuntary and a waiver cannot be enforced if it is not voluntary. For this same reason, the voluntariness of the waiver itself may also be reviewed in a Rule 32 petition. In addition, because ineffective assistance of counsel may, in some circumstances, render a guilty plea involuntary, see Ex parte Blackmon, 734 So.2d 995 (Ala.1999), we believe that claims of ineffective assistance of trial counsel may also be raised in a Rule 32 petition, despite a waiver of collateral review.

Our conclusion in this respect is similar to the conclusion reached in other jurisdictions. In DeRoo v. United States, 223 F.3d 919 (8th Cir.2000), the United States Court of Appeals for the Eighth Circuit stated:

“There is no question in this circuit that a knowing and voluntary waiver of direct-appeal rights is generally enforceable. See United States v. Goings, 200 F.3d 539, 543 (8th Cir.2000). We also have enforced a defendant’s plea agreement promise to ‘waive his right to appeal, or challenge via post-conviction writs of habeas corpus or coram nobis, the district court’s entry of judgment and imposition of sentence.’ [United States v.] His Law, 85 F.3d [379,] 379 [(8th Cir.1996)]. This Court has not had prior occasion to address whether a defendant may waive [28 U.S.C. § ] 2255 collateral-attack rights in a plea agreement. See Latorre [v. United States], 193 F.3d [1035,] 1037 n. 1 [(8th Cir.1999) ].
“As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context. See id. (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999)). The ‘chief virtues’ of a plea agreement are speed, economy, and finality. See United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992). Those virtues are promoted by waivers of collateral appeal rights as much as by waivers of direct appeal rights. Waivers preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government. See id.
“However, such waivers are not absolute. For example, defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement. See United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.), cert. denied, 525 U.S. 942, 119 S.Ct. 363, 142 L.Ed.2d 299 (1998). In addition, the decision to be bound by the provisions of the plea agreement, including the waiver provisions must be knowing and voluntary. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir.1999). ...
“A decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside ‘the range of competence demanded of attorneys in criminal cases.’ Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)); Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Therefore, ‘[j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself — the very product of the alleged ineffectiveness.’ Jones, 167 F.3d at 1145 (defendant convicted and entered into cooperation agreement before sentencing). We find the reasoning of Jones not only compelling, but logically required. A defendant’s plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant’s right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. Other courts agree that a waiver of section 2255 rights does not automatically preclude a defendant from raising ineffective assistance of counsel claims in a post-conviction motion. See United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (‘dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant’s motion to withdraw the plea incorporates a claim that the plea agreement generally and the defendant’s waiver of appeal specifically, were tainted by ineffective assistance of counsel’); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993) (stating waiver does not ‘categorically’ foreclose defendant’s right to bring motion under section 2255 for ineffective assistance of counsel); see also United States v. Craig, 985 F.2d 175, 178 (4th Cir.1993) (per curiam) (holding waiver did not preclude Rule 32(d) motion challenging validity of waiver due to ineffective assistance of counsel).”

223 F.3d at 923-24. See also United States v. Cockerham, 237 F.3d 1179 (10th Cir.2001), cert. denied, 534 U.S. 1085, 122 S.Ct. 821, 151 L.Ed.2d 703 (2002); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.1999); Watson v. United States, 165 F.3d 486 (6th Cir.1999); United States v. Wilkes, 20 F.3d 651 (5th Cir.1994); United States v. Abarca, 985 F.2d 1012 (9th Cir.), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993); and Allen v. Thomas, 265 Ga. 518, 458 S.E.2d 107 (1995).

We hold that although a waiver of the right to seek postconviction relief given as part of a plea agreement is generally enforceable, it cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the voluntariness of the waiver, or counsel’s effectiveness. Therefore, the circuit court erred in finding that Boglin’s claims that his guilty plea was involuntary, that his waiver of his right to appeal and to collaterally attack his conviction was involuntary, and that his trial counsel was ineffective were waived by the plea agreement.

Boglin contends that his guilty plea and his waiver of his right to appeal and to collaterally attack his conviction were involuntary because, he says, he was never informed of the constitutional rights he would be relinquishing by pleading guilty, as required by Rule 14.4, Ala. R.Crim.P. In addition, Boglin argues that the trial court failed to ascertain, during the guilty-plea colloquy, that he understood the consequences of waiving his right to appeal and to collaterally attack his conviction.

During the guilty-plea colloquy, a copy of which is contained in the record before this Court, the following occurred:

“[The Court]: How old are you?
“[Boglin]: Thirty-four.
“[The Court]: How far have you gone in school?
“[Boglin]: Graduated.
“[The Court]: Do you read and right okay?
“[Boglin]: Yes, sir.
“[The Court]: Did you sign these three documents given to me by your lawyer, one called explanation of rights and plea of guilty and the other called notice and waiver of right to appeal and right to collaterally seek postconviction relief and the other called notice and waiver of indigency status?
“[Boglin]: Yes, sir.
“[The Court]: Did you sign each of these documents of your own free will?
“[Boglin]: Yes, sir.
“[The Court]: Did anybody pressure you or force you to sign them?
“[Boglin]: No, sir.
“[The Court]: Did anybody promise you or offer you anything to get you to sign them?
“[Boglin]: No, sir.
“[The Court]: In this case, you’re charged with theft in the second degree. The State alleges that you have at least three or more prior felony convictions. I think, specifically, they are alleging seven prior felonies. If that allegation is true, then the range of punishment is a minimum of 15 years to a maximum of life or 99 years in the State penitentiary upon conviction for this offense. Is that your understanding?
“[Boglin]: Yes, sir.
“[The Court]: If you will read the indictment, please.
“[Prosecutor]: State of Alabama, Morgan County Circuit Court, May term, 1998. Grand jury of said county charges that before the finding of this indictment, Vincent Boglin, whose name is to the grand jury otherwise unknown, did knowingly obtain or exert unauthorized control over one pressure washer, property of Wal-Mart Stores, Incorporated, a corporation, of a value of $300 with the intent to deprive the owner of said property in violation of Section 13A-8^4, the Code of Alabama, against the peace and dignity of the State of Alabama, and its signed by Bob Burrell, District Attorney, Eighth Judicial Circuit.
“[The Court]: Do you understand what you are charged with?
“[Boglin]: Yes, sir.
“[The Court]: How do you plead to that charge of theft in the second degree?
“[Boglin]: Guilty.”

(C. 107-10.) The record on appeal contains a copy of both the Ireland form and the form in which Boglin waived his right to appeal and to collaterally attack his conviction. Both are signed by Boglin and his attorney.

Rule 14.4, Ala.R.Crim.P., provides, in pertinent part:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form 68 will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(i) The nature of the charge and the material elements of the offense to which the plea is offered;
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;
“(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her; the right to cross-examine witnesses or have them cross-examined in defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses; and
“(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of defendant’s guilt; and “(2) Determining that the plea is voluntary and not the result of force, threats, or coercion, nor of any promise apart from the plea agreement that has been disclosed to the court as provided in Rule 14.3(b).
“(d) Use of Form. The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in Form 68, 69, 70, or Form 71, as the case may be.”

(Emphasis added.) The committee comments to Rule 14.4 state, in pertinent part:

“Section (d) is included to accommodate the current Alabama practice of informing the defendant of his rights through a form similar to that approved in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), and subsequent cases. The rule, however, specifically retains the requirement that the trial judge personally address the defendant in order to determine that he understands the contents of the form and that the judge specifically question the defendant concerning the information contained in each item. Thus, in every case, the record should affirmatively show a colloquy between the trial judge and the defendant concerning all such matters. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), held that where the record affirmatively shows that the defendant was informed of and understood his rights, the record need not include a full transcript of the colloquy. Subsequent cases in the Court of Appeals have held that while a full colloquy is not required idhere the form is used, the record must show that the trial judge made inquiry as to the defendant’s understanding of the rights set out in the form. This rule requires such a colloquy and requires that specific inquiry be made with regard to the rights set out in Rule 114(a)(1) and (2). Such procedure mil ensure that the form herein approved does not ‘become so commonplace and perfunctory that [it fails] to serve the purpose for which [it is] intended.’ See Twyman v. State, 293 Ala. 75, 83, 300 So.2d 124, 131 (1974) (Heflin, C.J., dissenting).”

(Emphasis added.)

In this case, although the trial court asked Boglin if he had signed the Ireland form, to which Boglin replied that he had, the court never inquired as to whether Boglin understood the contents of that form. In Brewster v. State, 624 So.2d 217 (Ala.Crim.App.1993), a case almost identical to the present case, this Court held that the appellant’s guilty plea was not voluntary where the trial court determined that the appellant had signed the Ireland form, but failed to ascertain whether the appellant understood the contents of the form. We said:

“A guilty ‘plea is only properly accepted ... upon satisfaction of the requisites of Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)], including the trial judge’s determination that the guilty plea was knowingly and voluntarily entered by the accused. The record must reflect sufficient facts from which such determination could properly be made.’ Dingler v. State, 408 So.2d 530, 532 (Ala.1981).
“Prior to the adoption of the Rules of Criminal Procedure, there had been some question regarding what facts were sufficient to show compliance with Boykin. See, e.g., Walcott v. State, 48 Ala.App. 754, 263 So.2d 177 (1971), cert. denied, 288 Ala. 546, 547, 263 So.2d 178 (1972). For a time it was unclear whether the record must include a court reporter’s transcript of a full Boykin colloquy with the accused, or whether something else, such as the accused’s signature on an ‘Ireland’ form would suffice.
“In Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974), the Alabama Supreme Court answered those questions. The court held that a transcript of a Boykin colloquy was not required if the record contained an ‘Ireland ’ form signed by the defendant and there was other evidence in the record to support the fact that the defendant had been informed of his rights before signing the form. See Davis v. State, 348 So.2d 844, 846 (Ala.Cr.App.), cert. denied, 348 So.2d 847 (Ala.1977). The ‘other evidence’ in Twy-man was a minute entry reflecting that the court had questioned the accused about his execution of the ‘Ireland’ form, after which the accused
“ ‘stat[ed] to the Court that he ha[d] read said exhibit or ha[d] had said exhibit read to him by his counsel and that his counsel ha[d] fully explained to him the contents of said exhibit and that he fully underst[oo]d same and ha[d] no questions about same.’
“Twyman v. State, 293 Ala. at 78, 300 So.2d at 127. Because there was nothing in the record in Twyman to contradict the court’s minute entry, that minute entry sufficed to show compliance with Boykin.
“Chief Justice Heflin dissented in Twyman. He made the following observations:
“ T am of the opinion that written instruments can be used in connection with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. There is a danger that the use of such can become so commonplace and perfunctory that they fail to serve the purpose for which they are intended. Steps should be taken to guard against such use. I am of the opinion that when written instruments are used it is incumbent upon the trial court to ascertain that the defendant has read said instruments, or has had said instruments read to him, and that he fully understands that he has executed such a document. I think it is further incumbent upon the judge to ascertain whether or not the defendant can read or write. In my opinion the colloquy to ascertain all of this should appear in the record of the case in order that an appellate court can be convinced that there was not just a perfunctory use of written documents.’
“Twyman v. State, 293 Ala. at 82-83, 300 So.2d at 131 (Heflin, C.J., dissenting).
“The majority in Twyman held that a signed form plus a minute entry reciting compliance with Boykin were sufficient if the information contained therein was not contradicted by other portions of the record.
“The record in this case contains both a signed form and a minute entry reciting compliance with Boykin, but the minute entry is contradicted by the court reporter’s transcript. The judgment entry states that the appellant had been ‘advised of HIS legal rights by the Court,’ CR. 16, 18, 20, 22, but the court reporter’s transcript of the colloquy between the trial court and the appellant shows that the trial court neither advised the appellant of his rights nor inquired whether he had read, or had had read to him, the rights form before signing it or before pleading guilty. The trial court merely ascertained that the appellant had ‘signed’ the form.
“Although the convictions based on these guilty pleas could not stand, under Twyman alone, their invalidity is even more striking when the convictions are examined in light of the current procedure for accepting a guilty plea outlined in Rule 14.4, A[la].R.Crim.P., and in light of the fact that ‘the spirit of the Rule is to adopt a statement in the dissenting opinion in Twyman by Chief Justice Heflin, wherein he said: “There is a danger that the use of such [forms] can become so commonplace and perfunctory that they fail to serve the purpose for which they are intended.” ’ H. Maddox, Alabama Rules of Criminal Procedure § 14.4 at 439 (1990).”

624 So.2d at 219-20 (footnote omitted).

Similarly, in this case, although the record contains an Ireland form signed by Boglin and his counsel, the transcript of the guilty-plea colloquy reflects that the trial court did not advise Boglin of his rights and did not inquire as to whether Boglin had read, or had had read to him, and understood the contents of the Ireland form. As in Brewster, the trial court ascertained only that Boglin had “signed” the Ireland form. In addition, this case does not fall within this Court’s holding in Brown v. State, 695 So.2d 153 (Ala.Crim.App.1996). In Brown, this Court, with three judges concurring and two judges dissenting, upheld the appellant’s guilty plea as voluntary and held that the trial court had complied with Rule 14.4(d), Ala. R.Crim.P., where the record contained an Ireland form signed by the appellant and his counsel and, unlike here, the transcript of the guilty-plea colloquy showed that the appellant’s counsel had stated to the court that he had advised the appellant of all of his rights. Specifically, this Court stated:

“The presence of the executed Ireland form in the record — which contained the rights set out in Rule 14.4(a)(l)(iv), trial counsel’s reaffirmation to the court during the colloquy that he had advised the appellant of his rights, and the extensive colloquy that took place in this case— convince this court that the requirement of Twyman has been met and that the appellant pleaded guilty knowingly, voluntarily, and intelligently.”

695 So.2d at 154.

Based on the cases cited above, we must conclude that Boglin’s guilty plea was involuntary because the trial court failed to comply with Rule 14.4(d), Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974).

Because Boglin’s guilty plea was involuntary, the circuit court erred in denying Boglin’s Rule 32 petition. Therefore, the judgment of the circuit court denying Bog-lin’s Rule 32 petition is reversed, and this cause is remanded to the circuit court for that court to grant Boglin’s Rule 32 petition, to set aside Boglin’s guilty plea and the resulting conviction, and to restore the case to the docket for appropriate disposition.

REVERSED AND REMANDED.

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

BASCHAB, J., concurs in part and dissents in part, with opinion, which WISE, J., joins.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with that part of the majority opinion that holds that “a waiver of the right to seek postconviction relief ... cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the volun-tariness of the waiver, or counsel’s effectiveness.” However, I dissent from that part of the majority opinion that holds that the appellant did not voluntarily enter his guilty plea because the trial court allegedly did not comply with the requirements set forth in Rule 14.4(d), Ala. R.Crim. P., Boy-kin, and Twyman. I appreciate the necessity of ensuring that a defendant understands his rights when he signs documents such as the ones the appellant signed in this case. However, in this case, even though it did not specifically ask the appellant whether he understood his rights, the trial court had a reasonable basis for concluding that the appellant understood his rights and that he voluntarily waived them. It asked the appellant if he could read and write and if he had signed each of the documents of his own free will, and the appellant responded that he had. Therefore, the trial court could have concluded, by implication, that the appellant had read the documents. Also, once he signed the documents, there was, as there is with any other contract, a presumption that the appellant understood the documents and that the documents were valid. Finally, the trial court personally addressed the appellant and had the opportunity to observe his demeanor and body language during the plea proceeding. Under these circumstances, the trial court could have reasonably concluded that the appellant understood what he was doing. Requiring that every guilty plea colloquy contain the “magic words” “do you understand” will undercut the effectiveness of a form that was intended to be a practical solution in the courtroom. Instead, the determination of whether a defendant understands his rights should be made on a case-by-case basis. Accordingly, I respectfully concur in part and dissent in part.

      . The waiver expressly excluded jurisdictional claims.

      . Another claim Boglin raised in his petition was that the trial court lacked jurisdiction to accept his guilty plea because, he said, his indictment was void. We have reviewed the indictment and conclude that it is valid. Because the indictment is valid, the trial court had jurisdiction to accept Boglin's guilty plea.

      . The circuit court also found that Boglin had failed to plead sufficient facts to establish his counsel's ineffectiveness.

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

      . Because Boglin’s guilty plea was involuntary and he is entitled to relief on that claim, we need not review the remainder of the claims in Boglin's petition.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    John Bennie McLIN, Jr. v. STATE of Alabama.
    CR-00-2112.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.
    As Modified on Denial of Rehearing June 28, 2002.

      Sherly Snodgrass Caffey, Huntsville, for appellant.
    Bill Pryor, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   On Application for Rehearing

SHAW, Judge.

The appellant, John Bennie McLin, Jr., appeals the circuit court’s denial of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief, in which he attacked his 1998 conviction for burglary in the first degree and his resulting sentence, as a habitual felony offender, of life imprisonment without the possibility of parole. This Court affirmed McLin’s conviction and sentence on direct appeal in an unpublished memorandum issued on March 26, 1999. McLin v. State, (No. CR-98-0373) 767 So.2d 422 (Ala.Crim.App.1999) (table). A certificate of judgment was issued on July 15,1999.

McLin filed the present Rule 32 petition on September 16, 1999. The State filed a response and motion to dismiss the petition on September 24, 1999. On May 31, 2000, the circuit court held a hearing on McLin’s petition. McLin presented no evidence at the hearing. The circuit court denied McLin’s petition on May 22, 2001. On July 9, 2001, this Court received a form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” dated July 3, 2001, and signed by the clerk of the Limestone Circuit Court. No other written notice of appeal was filed.

On September 20, 2001, the State filed a motion to dismiss McLin’s appeal on the ground that McLin had not filed a written notice of appeal. We allowed McLin 14 days to respond to the State’s motion; on October 4, 2001, McLin filed a response, arguing that the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” was, in fact, completed and filed by him and should be considered to be his written notice of appeal. After considering the arguments of McLin and the State, this Court dismissed McLin’s appeal on October 22, 2001. In our certificate of dismissal, we noted that McLin’s use of the form specifically designated for use by circuit court clerks was inappropriate and that because neither McLin nor his counsel signed that form, McLin had failed to perfect his appeal.

On November 5, 2001, McLin filed an application for rehearing requesting that we set aside our dismissal of his appeal and review the circuit court’s denial of his Rule 32 petition. We grant the application and affirm the denial of McLin’s petition.

I.

In his application for rehearing, McLin argues that we should set aside our dismissal of his appeal because, he says, the form he completed was sufficient to satisfy the requirements of Rule 3(e), Ala. R.App.P. Specifically, he maintains that there is no form for filing a notice of appeal with this Court other than the form specifically designated to be filed by circuit court clerks that he completed. He further maintains that Rule 3, Ala.R.App.P., does not require a notice of appeal to be signed by an appellant or the appellant’s attorney.

McLin’s assertion that no form exists for filing a notice of appeal with this Court other than the form he completed entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” is incorrect. A sample form is included in the Appendix to the Alabama Rules of Appellate Procedure, specifically, Form 11, entitled “Notice of Appeal to the Court of Criminal Appeals of Alabama.” Although the forms in the Appendix to the Rules, including Form 11, have not been approved or adopted by the Alabama Supreme Court, see Rule 50, Ala.R.App.P., they nevertheless serve as examples for appellants and their attorneys. We find McLin’s argument that dismissal of his appeal was improper because there is no form for filing a notice of appeal with this Court other than the form he completed to be meritless.

However, we agree with McLin that nothing in Rule 3, Ala.R.App.P., imposes a requirement, jurisdictional or otherwise, that a notice of appeal be signed by an appellant or his or her attorney. Rule 3(a), Ala.R.App.P., entitled “Filing the Notice of Appeal,” provides in part: “In criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken by fifing a written notice of appeal with the clerk of the trial court within the time allowed by Rule 4, or by the defendant’s giving an oral notice of appeal at the time of sentencing.” Rule 3(c), Ala. R.App.P., entitled “Form and Content of Notice of Appeal,” states:

“The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Such designation of judgment or order shall not, however, limit the scope of appellate review.
“If the notice of appeal names the wrong appellate court to which the appeal is taken, such designation shall be treated as a clerical mistake and corrected accordingly. The necessary clerical steps shall be taken to docket the appeal and to file the record and briefs in the appropriate appellate court.”

In Edmondson v. Blakey, 341 So.2d 481 (Ala.1976), the Alabama Supreme Court stated:

“Our [Ala.R.App.P.] 3(c), like its federal counterpart, provides for a simple notice of appeal specifying the party or parties taking the appeal. The rule says that the notice '... shall designate the judgment, order or part thereof appealed from ... ’ The federal courts have been very liberal in entertaining appeals even where the notice fails to comply literally with the requirements of Rule 3(c). The test for dismissal for failure to comply seems to be whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice. Jones v. Chaney & James Const. Co., 399 F.2d 84 (5th Cir.1968); Donovan v. Esso Shipping Co., 259 F.2d 65 (3rd Cir.1958).
“The spirit of the [Alabama Rules of Appellate Procedure] is recognized and restated to insure the just, speedy and inexpensive determination of every appellate proceeding on its merits. The only jurisdictional rule in the entire rules is the timely filing of the notice of appeal. Nothing in the rules is designed to catch the unwary on technicalities. Jones v. Chaney & James Const. Co., supra. A simple statement indicating what judgments the appellant appeals from is all that is required.”

341 So.2d at 483-84. And in Witherspoon v. City of Mobile, 513 So.2d 62 (Ala.Crim.App.1987), this Court noted:

“[Ala.R.App.P.] 3(c) provides that ‘[t]he notice of appeal ... shall designate the judgment, order or part thereof appealed from.... Such designation of judgment or order shall not, however, limit the scope of appellate review.’ The test to determine if the notice complies with Rule 3(c) is ‘whether the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice.’ Edmondson v. Blakey, 341 So.2d 481, 483 (Ala.1976); Threadgill v. Birmingham Board of Education, 407 So.2d 129, 132 (Ala.1981). ‘Nothing in the rules is designed to catch the unwary on technicalities.... A simple statement indicating what judgments the appellant appeals from is all that is required.’ Edmondson v. Blakey, 341 So.2d at 484 (citation omitted).”

513 So.2d at 63. Furthermore, the United States Supreme Court has construed the federal counterpart to our Rule 3 as not attaching jurisdictional significance to the signature requirement. In Becker v. Montgomery, 532 U.S. 757, 121 S.Ct. 1801, 149 L.Ed.2d 983 (2001), the United States Supreme Court stated:

“Petitioner Dale G. Becker, an Ohio prisoner, instituted a pro se civil rights action in a Federal District Court, contesting conditions of his confinement. Upon dismissal of his complaint for failure to state a claim for relief, Becker sought to appeal. Using a Government-printed form, Becker timely filed a notice of appeal that contained all of the requested information. On the line tagged ‘(Counsel for Appellant),’ Becker typed, but did not hand sign, his own name. For want of a handwritten signature on the notice as originally filed, the Court of Appeals dismissed Becker’s appeal. The appellate court deemed the defect ‘jurisdictional,’ and therefore not curable outside the time allowed to file the notice.
“We granted review to address this question: When a party files a timely notice of appeal in district court, does the failure to sign the notice of appeal require the court of appeals to dismiss the appeal?’ 531 U.S. 1110, 121 S.Ct. 853, 148 L.Ed.2d 768 (2001). Our answer is no. For want of a signature on a timely notice, the appeal is not automatically lost. The governing Federal Rules direct that the notice of appeal, like other papers filed in district court, shall be signed by counsel or, if the party is unrepresented, by the party himself. But if the notice is timely filed and adequate in other respects, jurisdiction will vest in the court of appeals, where the case may proceed so long as the appellant promptly supplies the signature once the omission is called to his attention.”

532 U.S. at 759-60, 121 S.Ct. 1801. See also 5 Am Jur.2d Appellate Review § 327 (1995), which states:

“The requirements of the Federal Rules of Appellate Procedure with respect to the contents of notices of appeal are jurisdictional and mandatory, but such requirements are to be liberally construed by the courts. Thus, when papers are technically at variance with the letter of the Federal Rules of Appellate Procedure, a court may nonetheless find that the litigant has complied with the Rules if the litigant’s action is the functional equivalent of a notice of appeal, provided that the document accomplishes the dual objectives of notifying the court and notifying opposing counsel of the taking of an appeal. Any document that satisfies these objectives and which is timely filed may function as a notice of appeal. In determining whether a document will be construed as a notice of appeal, some courts employ a more lenient standard when the appellant is not represented by counsel; where life, liberty, or property is at stake; or when the interests of substantive justice so require.”

(Footnotes omitted.) Perhaps the best general discussion of this issue appears in Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure §§ 3949.4 and 3949.6 (3d ed.1999). In § 3949.4, the authors refer to § 3949.6 and note that “[t]he signature and address of the appellant’s attorney should [be included], but failure to sign the notice should not defeat the appeal.” (Footnote omitted.) In § 3949.6, the authors provide a detailed discussion of the effect of defects in taking an appeal; specifically, they note:

“The great hallmark of Rule 3, both in its language as amended over the years and in the construction the courts have put upon it, is liberality. The rulemak-ers and the judges have wanted to be sure that a possibly meritorious appeal is not denied its day in court because the appellant — or more often the appellant’s lawyer — has left some i undotted or some t uncrossed.”

See also Thiem v. Hertz Corp., 732 F.2d 1559 (11th Cir.1984); Clifton v. Ashcroft, 996 F.2d 1221 (8th Cir.1993); McNeil v. Blackburn, 802 F.2d 830 (5th Cir.1986); Robinson v. City of Chicago, 868 F.2d 959 (7th Cir.1989).

There is no express requirement in the Alabama Rules of Appellate Procedure that a notice of appeal filed in a criminal case be signed by the appealing party or by his or her counsel. Certainly Rules 3(a)(2) and 3(c) contain no such requirement. Both the rules and the case-law interpreting the rules indicate that the only jurisdictional prerequisite to an appeal to this Court is the timely filing of the notice of appeal, and both state and federal caselaw suggest that appellate rules should be liberally construed so as not to “catch the unwary on technicalities.” Edmondson, 341 So.2d at 483. Based on the plain language of Rule 3(c) and the caselaw cited above, we hold that a notice of appeal does not have to be signed by an appellant or by his or her attorney. Jurisdiction vests with this Court when a notice of appeal that substantially complies with the requirements of Rule 3(c), Ala.R.App.P., is timely filed.

In this case, McLin used the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” as his written notice of appeal. McLin’s use of this form was improper. This particular form was specifically designed for use by circuit court clerks to transmit notice to this Court that someone has filed an appeal; by signing the signature line provided on the form, the clerk of the circuit court certifies to this Court that all the information contained in the form is accurate. This certification is required because it is from the information contained on the form that this Court dockets every appeal. Use of this court form or any other court form in a manner or for a purpose other than that for which it was designed is inappropriate and cannot help but lead to confusion, as has happened in this case. Because the form used in this case was not designed for use by appellants or their attorneys, and to better ensure the accuracy of the information upon which all appeals are docketed, this Court strongly discourages the local practice by some circuit court clerks of requesting and/or allowing appellants or their attorneys to complete this form whenever an appeal is taken to this Court. We likewise strongly encourage appellants and their attorneys to use Sample Form 11 in the Appendix to the Alabama Rules of Appellate Procedure, or something similar thereto, when filing their written notices of appeal. Although neither approved nor adopted by the Alabama Supreme Court, that sample form is an appropriate form for filing notices of appeal; it satisfies the requirements of Rule 3(c), and it includes an area for the signature of the appellant’s attorney. Moreover, use of this sample form will not result in confusion or complications in perfecting appeals that may result from the use of an inappropriate form.

Although we find that McLin’s use of the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” as his written notice of appeal was improper, we nevertheless conclude that it was sufficient to perfect his appeal. The form designated the party taking the appeal, the judgment appealed from, and the name of the court to which the appeal was being taken; we can reasonably infer McLin’s intent to appeal from the text of the document; and the document was timely filed. Therefore, we find that this form was sufficient to perfect McLin’s appeal.

We recognize that in Gray v. State, 808 So.2d 1234 (Ala.Crim.App.2001), this Court held, at least implicitly, that the circuit clerk’s notice-of-appeal form was not the equivalent of a written notice of appeal filed by an appellant, as required by Rule 3(a), and, thus, was not sufficient to perfect an appeal. However, based on the analysis above, we now conclude that that holding was in error. Therefore, to the extent that Gray holds that the form entitled “Notice of Appeal to the Alabama Court of Criminal Appeals by the Trial Court Clerk” can never be sufficient to perfect an appeal, it is hereby overruled.

Because McLin’s notice of appeal was technically sufficient, our earlier dismissal of McLin’s appeal is hereby set aside.

II.

In his Rule 82 petition McLin presented numerous claims, including several claims of ineffective assistance of counsel. McLin presented several additional claims of ineffective assistance of counsel in an amendment to his petition and at the hearing on his petition. Of the claims presented in his petition, in the amendment to his petition, and at the hearing on his petition, McLin pursues six claims of ineffective assistance of counsel on appeal. Those claims that McLin presented in his petition, but does not pursue on appeal are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995)(“We will not review issues not listed and argued in brief.”). In addition, McLin presents an additional claim of ineffective assistance of counsel on appeal that was not presented in his petition, in the amendment to his petition, or at the hearing on his petition. “An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Therefore, this claim is not properly before this Court for review.

As to the six claims of ineffective assistance of counsel that are properly before this Court for review, we conclude that McLin is not entitled to relief on any of them. We have reviewed the record of the Rule 32 proceedings and the record from McLin’s direct appeal, and we find that all of McLin’s claims of ineffective assistance of counsel are meritless. As noted above, McLin presented no evidence at the Rule 32 hearing to support any of his claims; he merely presented arguments to the circuit court. In addition, the record from McLin’s direct appeal refutes many of his claims. After carefully considering his claims, we agree with the circuit court that McLin failed to prove that his counsel’s performance was deficient or that he was prejudiced by any alleged deficiency, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, the circuit court properly denied McLin’s petition.

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

APPLICATION GRANTED; DISMISSAL OF OCTOBER 22, 2001, SET ASIDE; AFFIRMED.

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

      . The circuit court's order denying the petition was originally issued on November 2, 2000. However, the circuit court did not have jurisdiction to deny the present petition at that time because McLin had an appeal pending in this Court from the denial of another petition. On instructions from this Court, the circuit court set aside its November 2, 2000, order pending this Court’s ruling on the appeal from McLin's other petition. After this Court affirmed the denial of McLin’s other petition, the circuit court reissued its order denying the present petition.

      . Rule 2(a) provides that "[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court” (emphasis added), but Rule 2(a)(2) provides that dismissal is discretionary with the appellate court if an appellant fails to timely file a brief, takes a frivolous appeal, fails to prosecute the appeal, or fails to comply substantially with the rules. The discretionary language of Rule 2(a)(2), as opposed to the mandatory language and specific reference to jurisdiction in Rule 2(a)(1), suggests that any defect in a notice of appeal, other than its timeliness, is not jurisdictional.

      . McLin's response to the State's motion to dismiss included a verified statement by McLin’s counsel that the notice-of-appeal form was completed by her on McLin’s behalf and not by the circuit court clerk. Therefore, we reject the State's argument that the form was not filed by McLin.

      . McLin was represented by the same counsel at trial and on appeal. His claims of ineffective assistance of counsel include claims relating to counsel’s performance both at trial and on appeal.


author: COBB, Judge.

text:
    Tony Lee SMITH v. STATE.
    CR-01-0886.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Tony Lee Smith, pro se.
    Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   COBB, Judge.

Tony Lee Smith appeals from the circuit court’s denial of Smith’s petition for a writ of mandamus in which he requested the circuit court to direct the district court to rule on Smith’s in forma pauperis declaration. Smith had filed the in forma pauper-is declaration in conjunction with his filing of a Rule 32, Ala.R.Crim.P., petition. In ruling on this appeal, this Court takes judicial notice of the appellate records in cases no. CR-00-2164 and CR-01-0105, both prior appeals filed by Smith, as well as the record underlying the instant appeal.

On October 30, 2000, Smith filed a Rule 32 petition and an in forma pauperis declaration in the district court of Calhoun County. On February 28, 2001, without ruling on the in forma pauperis declaration, the district court summarily dismissed the Rule 32 petition because, according to the district court, the petition was barred by the two-year limitations period in Rule 32.2. See Rule 32.2(c), Ala.R.Crim.P. Also on February 28, 2001, Smith filed a notice of appeal in the this Court from the denial of this Rule 32 petition. On March 10, 2001, while the appeal from the denial of his Rule 32 petition was pending, Smith filed a second in forma pauperis declaration in the district court, asserting that he had $3.17 in his prison account.

On March 29, 2001, this Court dismissed Smith’s appeal challenging the denial of his October Rule 32 petition. This Court found the action taken by the district court in dismissing Smith’s Rule 32 petition to be a nullity, because Smith did not pay a filing fee and his in forma pauperis declaration was not approved. “ ‘[Ajbsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a postconviction petition.’ ” Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001)(quoting Carpenter v. State, 782 So.2d 848, 849 (Ala.Crim.App.2000)).

In June 2001, Smith filed a second Rule 32 petition in the district court. Apparently, the in forma pauperis declaration filed on March 10, 2001, was filed in contemplation of this petition. On June 21, 2001, the district court summarily denied the June Rule 32 petition as being precluded by the two-year limitations period. On July 10, 2001,, Smith filed a petition for a writ of mandamus in this Court, complaining that the district court had erred in dismissing the June Rule 32 petition because the district court had not ruled on his in forma pauperis declaration. On August 6, 2001, before this Court ruled on Smith’s July mandamus petition, the district court issued orders denying Smith’s requests to be declared indigent that Smith had filed on October 30, 2000, and on March 10, 2001. On August 24, 2001, this Court dismissed the July mandamus petition on procedural grounds, without an opinion, Ex parte Smith, (No. CR-00-2164) 837 So.2d 899 (Ala.Crim.App.2001)(table). On October 12, 2001, Smith correctly filed a second petition for a writ of mandamus in this Court challenging the district court’s denial of his two Rule 32 petitions without having first ruled on Smith’s indigent status. On October 30, 2001, this Court, pursuant to § 12-11-30(4), Ala.Code 1975, transferred the mandamus petition to the Circuit Court of Calhoun County. The circuit court dismissed Smith’s October mandamus petition, because that court found that the claims contained in the petition had been raised and addressed in prior proceedings. In the instant appeal, Smith challenges the circuit court’s denial of his October mandamus petition.

We reverse the circuit court’s ruling denying Smith’s October petition for mandamus relief. The records before the Court reflect that Smith is indigent — he has no more that $3.17 in his prison account. In denying the mandamus petition, the circuit court was apparently considering the substance of the Rule 32 petition, which the court deemed procedurally barred. This is not permissible. As previously noted, “ ‘[AJbsent the payment of a filing fee [required by § 12-19-70, Ala.Code 1975,] or the granting of a request to proceed in forma pauperis the trial court fails to obtain subject matter jurisdiction to consider a postconviction petition.’ ” Ex parte McWilliams, 812 So.2d at 318 (quoting Carpenter v. State, 782 So.2d at 849). Thus, the orders of the district court denying Smith’s postconviction petitions were void. The circuit court is hereby ordered to vacate its order denying the Smith’s October petition for a writ of mandamus. “This case is therefore remanded to the circuit court for that court to consider [Smith’s] in forma pauperis request based solely on [Smith’s] ability to pay the filing fee.” Ex parte Pritchett, 832 So.2d 100, 101-02 (Ala.Crim.App.2002).

REVERSED AND REMANDED.

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

      . Smith was convicted on January 15, 1997. No direct appeal was taken.

      . A specific date is not specified in the record.

      . "The circuit court shall exercise a general superintendence over all district courts, municipal courts, and probate courts.” § 12-11-30(4), Ala.Code 1975.

      . We note that the circuit court granted Smith’s motion for leave to appeal in forma pauperis. (See C.R. 82.)


author: PER CURIAM. SHAW, Judge,

text:
    John Wayne DAVIS v. STATE of Alabama.
    CR-00-1678.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      Mark Anthony Dutton, Moulton, for appellant.
    Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.
   PER CURIAM.

John Wayne Davis was convicted of distribution of a controlled substance (marijuana), a violation of § 13A-12-211, Ala. Code 1975. He was sentenced to five years in prison; the sentence was enhanced by five years, pursuant to § 13A-12-250, Ala.Code 1975, and by an additional five years, pursuant to § 13A-12-270, Ala.Code 1975. In addition to court costs, the trial court ordered Davis to pay $50 to the Crime Victims’ Compensation Fund, a $1,000 fine, and a $1,000 penalty under the Demand Reduction Assessment Act.

An extensive recitation of the facts is unnecessary in this case. Davis’s conviction arose out of a controlled buy conducted by law-enforcement authorities in Lawrence County. The evidence at trial indicated that Davis was arrested in the parking lot of a Burger King restaurant in Moulton after he had sold marijuana to an undercover agent.

Davis makes four arguments on appeal: (1) that the trial court erred in enhancing his sentence pursuant to §§ 13A-12-250 and 13A-12-270 because, he says, he was “entrapped” by police into participating in a drug transaction within the geographical boundaries specified in these Code sections; (2) that there was no evidence of a “sale” of a controlled substance and that, therefore, the trial court erred in enhancing his sentence pursuant to § 13A-12-250; (3) that no “maps or other documents” were introduced into evidence to corroborate the testimony of Officer Jim McAbee, one of the officers present during the controlled buy, that the parking lot of the Burger King restaurant was 2.1 miles from the Moulton Middle School and, therefore, that the trial court erred in enhancing his sentence pursuant to § 13A-12-250; and (4) that the evidence did not establish that the Burger King restaurant was within three miles of a “public housing project owned by a housing authority” and, therefore, that the trial court erred in enhancing his sentence pursuant to § 13A-12-270.

After carefully reviewing the record and the briefs, we find no basis in Davis’s first three arguments for reversing his sentence. Davis raised entrapment as a defense only to the application of the statutory sentence enhancements. The transcript of the sentencing hearing reveals the following:

“THE COURT: As to the question of entrapment before that this Court charged the jury in the case and as the evidence will reflect, there was no basis to submit that to the jury. As a matter of fact, there was an affirmative defense raised.
“[DAVIS’S ATTORNEY]: Yes, sir, Judge.
“THE COURT: And my understanding, correct me if I’m wrong, withdrawn, and the defendant did not proceed on that basis.
“[DAVIS’S ATTORNEY]: Your Hon- or, that is correct. And let me — and if I’m not making myself clear, if the Court would bear with me just a second. Judge, our objection during the sentencing phase in regards to the enhancement provisions, one of our objections is based on entrapment for this reason: Not entrapment that the offense happened, the jury has found that, but, Judge, and we’ll get into this in a few minutes, but the Lawrence County Drug Task Force actually set up the place where this alleged transaction took place, and it’s our position that Mr. Davis was entrapped in the place that he was at which has resulted in these enhancement provisions coming into play. This is — I think my understanding this has never been brought up or there is no cases on this, but our position would be that Mr. Davis was — whereas we didn’t bring it up as any kind of — present any testimony during the trial, but our position would be that the Lawrence County Drug Task Force actually set up the place where this alleged transaction took place, and because of that they entrapped him into getting these sentencing [enhancement] provisions to come into play.”

(R. 264-66.)

One may avail himself of the entrapment defense where he is instigated, induced, or lured by a law-enforcement officer, for the purpose of prosecution, into committing a crime that he otherwise had no intention of committing. Where the defense of entrapment is raised, two separate issues of fact are presented: (1) whether there was a governmental inducement, and (2) whether the defendant was ready and willing to commit the act without persuasion. The defense of entrapment is not applicable where law-enforcement officers merely afford an opportunity to one intending to violate the law. It is only when the government’s deception actually implants the criminal design in the defendant’s mind that the defense of entrapment comes into play. The primary focus is on the predisposition of the accused rather than the agent’s actions. See Adams v. State, 585 So.2d 161 (Ala.1991).

The record in the present case indicates (and Davis does not argue otherwise) that there was no basis in the evidence presented to the jury to warrant a charge on the entrapment defense. As noted above, the defense of entrapment is not applicable where law-enforcement officers merely afford an opportunity to one intending to violate the law. The defense of entrapment was not an issue for the jury. The jury’s verdict is conclusive with respect to the issue of Davis’s criminal intent. The trial court did not err in rejecting Davis’s challenge to the application of §§ 13A-12-250 and 13A-12-270 based on an entrapment defense.

Davis’s second and third arguments were not presented to the trial court; therefore, the issue whether the evidence was sufficient to establish that the sale of a controlled substance took place in the Burger King restaurant parking lot and the issue whether maps or other documents were necessary to corroborate the testimony of Officer McAbee are not properly before this Court. See Cole v. State, 721 So.2d 255, 259 (Ala.Crim.App.1998) (“This argument, however, was not preserved for appellate review because it was never presented to the trial court to allow that court to make a ruling on this issue.”). We note, however, that even if those issues had been properly preserved, we would find no merit in them. The trial transcript clearly indicates that a complete drug transaction between Davis and an undercover agent took place in the Burger King parking lot. Furthermore, this Court has held that the testimony of a police officer, even without corroborating maps and other documents, is sufficient to establish the three-mile requirement of § 13A-12-250. See Grider v. State, 600 So.2d 401, 404 (Ala.Crim.App.1992) (“Officer Greg Ward of the Geneva Sheriffs Department testified that the sale occurred at a housing project which was three blocks from a school and less than one mile. There was sufficient evidence to prove that the sale occurred within three miles of a school.”).

However, with respect to issue four, the record indicates that the trial court did err in enhancing Davis’s sentence pursuant to § 13A-12-270. That section is applicable only upon a proper showing that the defendant sold a controlled substance within three miles of a “public housing project owned by a housing authority.” The undisputed evidence presented to the trial court indicates that the housing project the State argued was within three miles of the Burger King parking lot— Moulton Manor — was not “owned by a housing authority.” Teresa Hill, the administrative assistant to the executive director of the Moulton Housing Authority, testified as follows:

“[PROSECUTOR]: Is Moulton Man- or managed by the Moulton Housing Authority?
“[HILL]: Yes, sir.
“[PROSECUTOR]: And is Moulton Manor a federally funded housing project?
“[HILL]: Yes, sir.
“[DAVIS’S ATTORNEY]: Objection to relevance, Your Honor. It says—
“THE COURT: I’ll overrule.
“[PROSECUTOR]: Is Moulton Man- or reserved primarily for elderly and disabled?
“[HILL]: Yes, sir.
“[PROSECUTOR]: It’s not open for the public, I couldn’t go there and rent an apartment?
“[HILL]: That’s correct.
“[PROSECUTOR]: Along with these other apartments that you’ve mentioned, they are not open for the public, but they are public housing projects?
“[HILL]: That’s correct.
“[PROSECUTOR]: Could any member of the public that is elderly or disabled apply for residence at Moulton Manor?
“[HILL]: Yes, sir.
“[DAVIS’S ATTORNEY]: Objection to relevance.
“THE COURT: I’ll overrule. Your answer was yes?
“[HILL]: Yes, sir.
“[PROSECUTOR]: Who owns these housing projects?
“[HILL]: All right. The city owns all the other ones except for Moulton Man- or and that is owned by Jack Golden. He lives in Montgomery.
“[PROSECUTOR]: Is it managed by the housing authority?
“[HILL]: Moulton Housing Authority.
“[PROSECUTOR]: Through HUD?
“[HILL]: That’s right.
“[PROSECUTOR]: That’s all.
“THE COURT: Any other questions?
“RE-CROSS-EXAMINATION BY [DAVIS’S ATTORNEY]:
“[DAVIS’S ATTORNEY]: But Moul-ton Manor is owned by an individual; correct?
“[HILL]: That’s correct.”

(R. 294-96.) This testimony is not disputed in the record.

Because § 13A-12-270 clearly does not apply in cases where a controlled substance is sold within three miles of a privately-owned housing project, we must reverse Davis’s sentence and remand the case for the trial court to resentence Davis without the application of § 13A-12-270. See Ex parte Looney, 797 So.2d 427, 428 (Ala.2001) (wherein the Supreme Court of Alabama noted the well-established rule that words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says).

For the foregoing reasons, we affirm Davis’s conviction. However, we reverse his sentence and remand the case for re-sentencing consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in part and dissents in part, with opinion, which COBB, J., joins.

SHAW, Judge,

concurring in part and dissenting in part.

I concur in that part of the opinion affirming Davis’s conviction. However, I would not reach the issue upon which the majority reverses Davis’s sentence because I would reverse his sentence and remand the case for resentencing without application of the sentence enhancements in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, in accordance with my special writing in Poole v. State, [Ms. CR-99-1200, August 31, 2001] — So.2d —, — (Ala.Crim.App.2001) (Shaw, J., concurring in the result).


text:
    Barry Lydell CONNER v. STATE of Alabama.
    CR-01-0097.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.

      David A. Hatfield, Eufaula, for appellant.
    Bill Pryor, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

Pursuant to a plea agreement with the State, Barry Lydell Conner pleaded guilty to escape in the third degree, a violation of § 13A-10-33, Ala.Code 1975. In accordance with the plea agreement, he was sentenced, as a habitual offender, to 10 years’ imprisonment; the sentence was split and he was ordered to serve 3 years in confinement followed by 5 years on probation.

Before pleading guilty, Conner expressly reserved the right to appeal the trial court’s denial of his motion to dismiss the indictment on the ground that his actions constituted the misdemeanor offense of failing to remain within the extended limits of confinement or failing to return to the place of confinement within the time prescribed, a violation of § 14-8-42, Ala.Code 1975, rather than the felony offense of escape in the third degree.

The record reflects that in 1999, Conner was convicted of robbery in the third degree and of theft of property in the second degree, and he was placed on probation. On January 30, 2001, his probation was revoked. While waiting to be transferred to the custody of the Department of Corrections, Conner was housed in the Barbour County jail, where the sheriff allowed him to participate in the county’s work-release program. On March 4, 2001, after being informed that he would be transferred the following day, Conner went to his place of employment. However, when the van arrived at 7:10 p.m. to pick up the inmates and return them to the county jail, Conner was not at the work site. He turned himself in to authorities on March 12, 2001, and he was subsequently indicted for escape in the third degree.

Conner argues that because he was a state inmate on work release in county custody at the time he escaped, he could not be convicted of escape in the third degree under § 13A-10-33, but could be convicted only of the misdemeanor offense defined in § 14-8-42.

Section 14-8-42 provides:

“The willful failure of an inmate to remain within the extended limits of his confinement or to return to the place of confinement within the time prescribed shall be deemed an escape from a state penal institution in the case of a state inmate and an escape from the custody of the sheriff in the case of a county inmate and shall be punishable accordingly.”

This section is contained in Title 14, Chapter 8 — “Temporary Release Programs,” under Article 2 — “Work Release for County Inmates and State Inmates in County Custody.” (Emphasis added.) Section 14-8-43 provides that “[ajnyone violating any of the provisions of this article shall be guilty of a misdemeanor.”

With respect to § 14-8-42, “[tjhis court has consistently held that a ‘county inmate or a state inmate in county custody who fails to return from work release is guilty of only a misdemeanor.’ ” Cork v. State, 603 So.2d 1127, 1128 (Ala.Crim.App.1992), quoting Webb v. State, 539 So.2d 343, 345 (Ala.Crim.App.1987)(some emphasis in Cork; some emphasis added). See also Moncrief v. State, 551 So.2d 1175 (Ala.Crim.App.1989); Nichols v. State, 518 So.2d 851, 852 (Ala.Crim.App.1987); Allen v. State, 481 So.2d 418, 419 (Ala.Crim.App.1985); and Alexander v. State, 475 So.2d 625 (Ala.Crim.App.1984), rev’d on other grounds, 475 So.2d 628 (Ala.1985).

However, in Webb, supra, this Court, in addressing an equal-protection challenge to the practice of treating state inmates in county custody — who can be convicted only of a misdemeanor for failing to return from work release — differently than state inmates in state custody — who can be convicted of felony escape for failing to return from work release — recognized that the Legislature had not defined “state inmates in county custody” for purposes of Title 14, Chapter 8, Article 2, and it construed that phrase to mean only those state inmates who are in county custody with the approval of the Department of Corrections:

“ ‘[A] classification made by a Legislature is presumed to be reasonable in the absence of clear and convincing indications to the contrary, and the person who assails it has the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ Clark v. State, [284 Md. 260, 267,] 396 A.2d [243,] 247 [ (1979) ]. The Alabama legislature has classified ‘county inmates’ and ‘state inmates’ for purposes of work release as follows:
“‘(1) COUNTY INMATE: A person convicted of a crime and sentenced to a term of confinement of one year’s duration or less.
“ ‘STATE INMATE: A person convicted of a crime and sentenced to a term of confinement of more than one year’s duration.’
“Ala.Code (1975), § 14-8-30. Compare Ala.Code §§ 13A-l-2(3) (offense punishable by less than one year’s imprisonment is a misdemeanor) and 13A-l-2(4) (offense punished by more than one year’s imprisonment is a felony). By definition, therefore, a county inmate is a convicted misdemeanant and a state inmate, regardless of the location of his work release facility, is a convicted felon.
“Although the Alabama legislature has not defined ‘state inmates in county custody,’ it has authorized the Board of Corrections to promulgate rules concerning which state inmates may participate in county work release programs, Ala.Code (1975), § 14-8-31(c), and it has provided that only those state inmates ‘approved by’ the Board of Corrections may be held in county custody. See Ala. Code (1975), § 14-8-33(b).
“In the absence of any evidence to the contrary, we must assume that the Board of Corrections, to whom the legislature properly delegated the authority to classify ‘state inmates in county custody,’ transfers only low risk, non-dangerous felons to county custody. ‘When the classification in ... a law [assailed on equal protection grounds] is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). Assuming, then, that the Board of Corrections exercises its discretion to transfer to county custody only those state inmates who present the least threat to society, the differences in punishment for the crimes of escape from a work release center rest on a reasonable basis and cannot be said to be purely arbitrary. Lindsley, id. at 79, 31 S.Ct. at 340; [State v.] Spurlock, 393 So.2d [1052,] 1056 [ (Ala.Crim.App.1981) ]. We find nothing arbitrary in the legislature’s determination that a dangerous felon who fails to return to his work release center is guilty of a felony, while a misdemeanant or a non-dangerous felon who absconds from work release is guilty only of a misdemeanor. As the Colorado Supreme Court observed:
“ “We believe that there are a number of rational considerations which justify the classification scheme of our escape statute. These considerations include the reasonable belief on the part of the legislature that persons convicted of more grievous crimes present a greater threat to society requiring that a greater effort be made to deter their escape, and that persons convicted of more grievous crimes are generally sentenced to longer prison terms, increasing their motive to escape and requiring greater penalties to help deter such escapes.’
“People v. McKnight, 626 P.2d [678,] 684 (Colo.1981). To the extent that the Board of Corrections transfers state inmates to county facilities in order to relieve overcrowding at state facilities, there is a proper exercise of delegated authority and no denial of equal protection. See Clark v. State, 284 Md. 260, 396 A.2d 243, cert. denied, 444 U.S. 858, 100 S.Ct. 119, 62 L.Ed.2d 77 (1979). The legislature may, without violating the equal protection clause, provide a special punishment for a special class of offenders. Fowler v. State, 440 So.2d 1195, 1198 (Ala.Cr.App.1983); [State v. Spurlock], supra, 393 So.2d at 1056. Section 13A-10-31, as it applies to State work release inmates, does not deny equal protection of the laws.”

539 So.2d at 346-47. Thus, for purposes of § 14-8-42, “state inmates in county custody” include only those state inmates who have been transferred from state custody to county custody with the approval of the Department of Corrections.

In this case, although it is undisputed that Cornier was in county custody at the time of his escape, the record indicates that Conner was not transferred from state custody to county custody with the approval of the Department of Corrections. Rather, the record clearly shows, as the trial court correctly found, that Conner was in county custody only while waiting to be transferred to state custody and that his participation in the county’s work-release program was approved by the sheriff, not by the Department of Corrections. Therefore, Conner was not a “state inmate in county custody” as that term has been defined for purposes of § 14-8^42.

Section 13A-10-33(a) provides that “[a] person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.” “Custody” is defined in § 13A-10-30(b)(l) as “[a] restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court, but does not include mere supervision of probation or parole, or constraint incidental to release on bail.” In Alexander, supra, this Court held that the term “custody” for purposes of the escape statutes includes work release programs because “ ‘work release programs are a form of “detention for law enforcement purposes.” ’ ” 475 So.2d at 627, quoting Commonwealth v. Brown, 261 Pa.Super. 240, 244, 396 A.2d 377, 379 (1978). Thus, when Conner left his place of employment, he escaped from “custody,” and he was properly indicted for and convicted of escape in the third degree pursuant to § 13A-10-33. The trial court properly denied Conner’s motion to dismiss.

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

AFFIRMED.

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

      . We note that there is a discrepancy in the record as to this conviction. In his response to Conner’s motion to dismiss, the prosecutor stated that Conner had been convicted of theft of properly in the second degree. However, in its order denying the motion to dismiss, the trial court stated that Conner had been convicted of receiving stolen property.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Saul CIMBLER, Respondent.
    No. SC01-116.
    Supreme Court of Florida.
    Nov. 14, 2002.
    Rehearing Denied March 13, 2003.
    John F. Harkness, Jr., Executive Director, and John Anthony Boggs, Staff Counsel, Tallahassee, FL; and Randolph Max Brombacher, Bar Counsel, Miami, FL, for Complainant.
    Richard Baron of Baron and Cliff, Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical misconduct by attorney Saul Cimbler. We have jurisdiction. See art. V, § 15, Fla. Const. The Florida Bar petitions for review, challenging the referee’s recommended discipline of a ninety-day suspension. For the reasons expressed below, we disapprove the referee’s recommended discipline and impose a one-year suspension to be followed by three years’ probation.

The Bar filed a three-count complaint against Cimbler alleging misconduct arising from Cimbler’s representation of three clients. After a final hearing on both guilt and discipline, the referee made the following factual findings.

COUNT I

In November 1998, Cimbler was hired by Jorge Ruiz Del Vizo and his wife Gladys Ruiz Del Vizo, to represent them in the sale of their property in Key Biscayne. The buyer was represented by attorney Ralph R. Crabtree, whose title commitment was relied upon by the parties at the closing. The closing statement and all closing documents were executed on November 18, 1998. On that same date, the buyer transferred $408,994.61 to Cimbler’s trust account. Cimbler agreed to disburse the funds as indicated in the closing documents, which included payment of the real estate taxes and payment of the documentary stamps, surtax, and recording fees. Cimbler was also required to record the warranty deed in the Miami-Dade County public records. Although Cimbler claims that he directed his assistant to complete the post-closing matters, the warranty deed was never recorded and the real estate taxes were never paid.

As a result, Crabtree was unable to issue the final title insurance policy for the buyer in a timely or proper manner. After the closing, for over a twelve-month period, Crabtree attempted to contact Cimbler’s office in order to obtain a copy of the recorded deed, which Cimbler’s office promised would be forthcoming. Crabtree was also unsuccessful in his attempts to locate Cimbler through his Florida Bar address or last known business address. In July 1999, Crabtree had a title search performed on the property and learned that the deed had never been recorded. After attempting to have Cimbler rectify his failure to record the deed, Crab-tree had a new warranty deed executed by the Ruiz Del Vizos on January 4, 2000, and recorded in Miami-Dade’s public records. Crabtree had to personally supply the funds for the documentary stamps, surtax, recording fees, and real estate taxes, all of which had been previously remitted to Cimbler as part of the funds to be disbursed at the time of closing and recording of the deed. Sometime thereafter, Cim-bler was notified that the deed he had prepared was never recorded and the real estate taxes had not been paid. Cimbler ultimately had to reimburse Crabtree for the monies he advanced to perfect the closing and Cimbler did so on or about April 7, 2000.

COUNT II

In March 1995, Cimbler was hired by Antonio Dominguez to prepare a contract for the purchase of real property located in Marathon, Florida. Dominguez remitted $2000 to Cimbler as a deposit for the property and Cimbler prepared a contract in furtherance of the purchase. Sometime in May 1995, it became apparent that the sale of the property would not take place. Dominguez, acting on Cimbler’s advice, remitted $800 to Cimbler in order to file a suit for specific performance and breach of contract, which Cimbler filed that same month. Prior to filing an answer, opposing counsel filed a motion to dismiss and for judgment on the pleadings. A hearing was initially set for January 18, 1996, but was moved up to November 14, 1995. Although Cimbler was provided timely and proper notice of the November 14 hearing date by opposing counsel, he did not appear and the judge entered a final judgment on the pleadings in favor of the defendant. Further, Cimbler failed to establish excusable neglect for not attending the hearing.

Cimbler filed a motion to set aside the final judgment, which the judge denied with leave to refile the motion pursuant to Florida Rule of Civil Procedure 1.540. In September 1996, Cimbler filed a second motion to set aside the judgment under rule 1.540. Opposing counsel served a notice of hearing on the motion set for August 5, 1997, and served a notice for attorney’s fees and costs. Cimbler failed to attend the hearing and the judge entered an order in favor of the defendant, as well as an attorney’s fees judgment against Dominguez for $7294 plus interest. Cim-bler first became aware of the judgment in February or March 1998, but did not timely remit funds to Dominguez and has not provided any restitution to Dominguez, in spite of having said he would do so.

As a result of the judgment, a lien has been placed on property owned by Dominguez, who has hired additional legal counsel in regard to these matters. Dominguez’s new attorney sent correspondence to Cimbler to resolve this matter but restitution had not occurred as of the date of the referee’s report. In addition, Cimbler did not return the $2000 deposit for the purchase of the real property from his trust account until Dominguez’s new attorney requested it.

COUNT III

Sometime in 1994 or 1995, Drs. Todd and Corey Narson hired Cimbler to file a civil lawsuit against their then landlord, regarding a commercial lease dispute in Miami-Dade County. The gravamen of the suit concerned whether the Narsons, as tenants, could obtain a certificate of use that would enable them to use the property for commercial purposes. The lease at issue was terminated in January 1997. Sometime in May or June 1997, the Nar-sons contacted Cimbler and discharged him on another unrelated matter. At no time after this communication did the Nar-sons have any further substantive communications or correspondence with Cimbler in regard to their civil lawsuit. Sometime in the later part of 1997, Cimbler, having maintained his status as counsel of record, failed to inform the Narsons that they were to appear so the opposing party could take their deposition. On December 18, 1997, Cimbler attended a hearing where the court entered an order requiring that the Narsons make themselves available for deposition within thirty days or they would be sanctioned. However, Cimbler failed to notify the Narsons and they never appeared for deposition. As a result, the court entered a final judgment on or about April 16, 1998, in favor of the defendants for $58,400 plus attorney’s fees of $15,391.25 and costs of $940.17, totaling $74,731.42. On or about August 4, 1999, the Narsons were informed by their bank that a writ of garnishment had been attached to their account based on the final judgment.

ALL COUNTS

With respect to all counts, the referee found that Cimbler “was previously under contract with FLA, Inc. [(Florida Lawyers Assistance Program)] and was under the Psychiatric care of Dr. Stephen Kahn, M.D. from June 1993 through 1998.” Cim-bler has been diagnosed with both recurrent and severe depression as well as avoi-dant personality disorder. In addition, during the same time period, Cimbler exhibited signs of diminished psychological, social, and occupational functioning that affected his ability to practice law and may not have been apparent to his clients. However, Cimbler neither declined to render his services nor withdrew from his representation of the Ruiz Del Vizos, Dominguez, or the Narsons. Lastly, the referee found that Cimbler failed to maintain his Florida Bar address or a public phone number, and made deliberate efforts to make himself unavailable and difficult to contact.

RECOMMENDATIONS AS TO GUILT AND DISCIPLINE

Based on the foregoing findings of fact, the referee recommended that Cimbler be found guilty of the following rule violations: as to count I, Rules Regulating the Florida Bar 1-3.3 (stating that “[e]ach member shall promptly notify the executive director of any changes” in mailing address and business telephone) and 4-1.3 (“A lawyer shall act with reasonable diligence and promptness in representing a client.”); as to count II, rules 1-3.3, 4-1.4(a) (“A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”), and 4-1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”); and as to count III, rules 4-1.3, 4-1.4(a), 4 — 1.4(b), and 4-1.16(a)(2) (“[A] lawyer shall ... withdraw from the representation of a client if ... (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.... ”).

As to discipline, the referee concluded that the presumptively appropriate sanction was suspension under Florida Standard for Imposing Lawyer Sanctions 4.4 (Lack of Diligence), which provides:

4.42 Suspension is appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

The referee found that the evidence presented at the hearing did not establish, in certain instances, clear and convincing proof of willful, intentional conduct. Therefore, the referee concluded that Cim-bler’s “negligent handling of the three (3) matters in question either occurred due to simple communication lapses, errors in calendaring legal hearings, or possibly failures to attend hearings which were duly noticed, yet not communicated to [Cim-bler] by staff or opposing counsel.” The referee further found that although Cim-bler’s lack of diligence and failure to communicate with his clients “created a situation ripe for malfeasance,” several facts showed a set of procedural mistakes not entirely attributable to Cimbler.

In aggravation, the referee found that Cimbler (1) had a prior discipline in 1994 based on similar findings of emotional problems and mental health impairments, resulting in a ninety-day suspension and three years’ probation, see Florida Bar v. Cimbler, 659 So.2d 1089 (Fla.1995) (unpublished order); (2) had committed multiple offenses; and (3) had shown indifference in making restitution to Dominguez. See Fla. Stds. Imposing Law. Sanes. 9.22(a), (d), (]’)■ In mitigation, the referee found that Cimbler (1) made a timely good faith effort to make restitution or to rectify the consequences of his misconduct; (2) made full and free disclosure or had a cooperative attitude during the proceedings; (3) had good character or reputation; (4) had physical or mental disabilities or impairment; (5) had demonstrated interim rehabilitation; and (6) had shown remorse. See Fla. Stds. Imposing Law. Sanes. 9.32(d), (e), (g)-(h), (j), ©•

The referee recommended that Cimbler be suspended from the practice of law for ninety days and be required to pay the Bar’s costs. The referee further recommended that Cimbler be placed on probation for five years following reinstatement and that during this time, at his own expense, Cimbler should be supervised by an attorney acceptable to The Florida Bar, monitored by FLA, Inc., and required to submit annually to an independent psychiatric evaluation performed by a licensed psychiatrist chosen by the Bar. In addition, the referee recommended that Cim-bler be required to immediately enroll in The Florida Bar’s Law Office Management Assistance Service (LOMAS) and maintain enrollment during the probationary period, or as deemed necessary by the executive director of LOMAS. Last, the referee recommended that Cimbler be required to remit $8000 to Dominguez as restitution for any outstanding debts arising from the liens placed on Dominguez’s property. In making this recommendation, the referee focused on the significant mitigating factors and concluded that Cimbler “perceives and recognizes the future consequences if he fails to conduct himself with professionalism to practice in the future, and knows that indeed this may truly be his last opportunity.”

The Bar seeks review of the referee’s recommended discipline, arguing that a ninety-day suspension is inappropriate due to the similar and repetitive nature of Cim-bler’s misconduct in this case. Specifically, the Bar argues that the facts of this case warrant a thrée-year suspension.

ANALYSIS

Neither the Bar nor Cimbler challenges the referee’s findings of fact or recommendations of guilt, which we approve without further discussion. In reviewing a referee’s recommendation of discipline, this Court has a broader scope of review than that afforded to findings of fact because the Court “bears the ultimate responsibility of ordering the appropriate sanction.” Florida Bar v. Elster, 770 So.2d 1184, 1188 (Fla.2000). Moreover, the three purposes of discipline are as follows: “[T]he judgment must be fair to society, it must be fair to the attorney, and it must sufficiently deter other attorneys from similar misconduct.” Florida Bar v. Brown, 790 So.2d 1081, 1089 (Fla.2001).

We conclude that the referee’s recommended discipline does not fulfill these three purposes. In order to protect the public, a suspension of greater than ninety days is required, especially in light of the seriousness of the acts of neglect, the cumulative nature of the misconduct, and Cimbler’s previous disciplinary history. In addition, we conclude that a ninety-day suspension does not have a reasonable basis in existing caselaw, and we therefore disapprove the recommended discipline. See Florida Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999) (this Court “will not second-guess a referee’s recommended discipline as long as that discipline has a reasonable basis in existing caselaw”).

In recommending a ninety-day suspension the referee found that Florida Bar v. Maier, 784 So.2d 411 (Fla.2001), was “strikingly similar” to the instant case. Although we agree that Maier is similar to the instant ease in that the referee found extensive mitigation, we also conclude that Maier is distinguishable in two important ways. First, the misconduct in Maier involved only one client and occurred over a period of one year (1995-1996), see id. at 412, whereas Cimbler’s misconduct involved three clients and occurred over a number of years (1995-1999). We have consistently stated that “[t]his Court deals more harshly with cumulative misconduct than it does with isolated acts.” Florida Bar v. Nesmith, 707 So.2d 331, 333 (Fla.1998); see also Florida Bar v. Bern, 425 So.2d 526, 528 (Fla.1982) (stating that “cumulative misconduct of a similar nature should warrant an even more severe discipline than might dissimilar conduct”).

Second, when imposing discipline, “this Court considers the respondent’s previous history and increases the discipline where appropriate.” Florida Bar v. Morrison, 669 So.2d 1040, 1042 (Fla.1996). In Maier, this Court found a sixty-day suspension appropriate where the attorney had a prior disciplinary history consisting of two admonishments and a thirty-day suspension. See 784 So.2d at 413. In this case, Cimbler has previously received a ninety-day suspension resulting from similar emotional problems and mental health impairments followed by a three-year probationary period. Rather than be rehabilitated during that period of time, Cimbler proceeded to commit multiple acts of client neglect arising from similar emotional problems and mental health impairments. This reinforces the necessity for a longer period of suspension that will require Cim-bler to demonstrate his fitness before being readmitted, even on a probationary basis.

The facts of the three counts in this case, considered together, show that Cim-bler engaged in a long-term pattern of multiple client neglect. In the Ruiz Del Vizo case, the client neglect spanned the course of an entire twelve-month period of time. We have made clear that even where there has been no finding of intentional misrepresentation or fraud, “[flailing to represent one’s client zealously, failing to communicate effectively with one’s client, and failing to provide competent representation are all serious deficiencies.” Florida Bar v. Roberts, 689 So.2d 1049, 1051 (Fla.1997); see also Florida Bar v. Schilling, 486 So.2d 551, 552 (Fla.1986) (“Confidence in, and proper utilization of, the legal system is adversely affected when a lawyer fails to diligently pursue a legal matter entrusted to that lawyer’s care. A failure to do so is a direct violation of the oath a lawyer takes upon his admission to the bar.”). Specifically, we have stated:

[A]n attorney’s consideration of his or her client’s interests and communication with the client at reasonable times in response to the client’s inquiries are a vital and necessary part of the attorney-client relationship. We expect and require this of members of The Florida Bar and will not hesitate to impose discipline upon Florida attorneys who do not fulfill these obligations to their clients.

Florida Bar v. Roberts, 770 So.2d 1207, 1209 (Fla.2000). Although we appreciate Cimbler’s showing of remorse and the significant mitigation found by the referee in this case, we conclude that the serious and cumulative nature of Cimbler’s misconduct, especially in light of his prior suspension, requires more severe discipline than recommended.

Other cases involving multiple acts of lack of diligence support this conclusion. See Florida Bar v. Centurion, 801 So.2d 858 (Fla.2000) (one-year suspension warranted for an attorney who was found guilty of failing to act with reasonable diligence on matters affecting five clients but had no prior disciplinary history); Florida Bar v. Roberts, 770 So.2d 1207 (Fla.2000) (ninety-one-day suspension warranted for an attorney who failed to keep a client reasonably informed, failed to explain the matter to the client to the extent reasonably necessary to allow the client to make an informed decision, had a prior disciplinary history, including a ninety-day suspension, and where the referee found that the attorney was suffering from personal or emotional problems); Florida Bar v. Brakefield, 679 So.2d 766 (Fla.1996) (six-month suspension warranted for an attorney who was found guilty of various acts of client neglect and had two prior disciplinary actions resulting in an admonishment and a public reprimand); Florida Bar v. Morrison, 669 So.2d 1040 (Fla.1996) (one-year suspension warranted for an attorney who failed to act with diligence, failed to keep the client reasonably informed, failed to comply with requests for information, and had prior discipline for similar conduct); Florida Bar v. Winderman, 614 So.2d 484 (Fla.1993) (one-year suspension warranted for an attorney who failed to communicate with a client and who failed to pursue a claim that resulted in a dismissal with prejudice and an order taxing attorney’s fees and costs to the client).

The Bar contends that the caselaw supports a three-year suspension in this case. We disagree. The cases cited by the Bar to support its argument are distinguishable because they contain no discussion of mitigation, which the referee found to be significant in the present case. See Florida Bar v. Elster, 770 So.2d 1184 (Fla.2000); Florida Bar v. King, 664 So.2d 925 (Fla.1995); Florida Bar v. Provost, 323 So.2d 578 (Fla.1975); Florida Bar v. Schneiderman, 285 So.2d 392 (Fla.1973).

CONCLUSION

Considering all of the circumstances in this case, we conclude that a one-year suspension followed by a term of three years’ probation is appropriate. We approve all other aspects of the referee’s recommended discipline but specifically require that during the term of probation, Cimbler be supervised by an attorney chosen by The Florida Bar.

Accordingly, Saul Cimbler is hereby suspended from the practice of law for one year effective, nunc pro tunc, July 29, 2002, and thereafter until he makes restitution to Dominguez in the amount of $8000. Following his reinstatement, Cim-bler shall be placed on probation for three years with the conditions set forth in the referee’s report. Specifically, Cimbler shall, at his own expense, be supervised by an attorney chosen by The Florida Bar, monitored by FLA, Inc., and required to submit annually to an independent psychiatric evaluation performed by a licensed psychiatrist chosen by the Bar. In addition, Cimbler shall enroll in LOMAS and maintain enrollment during the probationary period, or as deemed necessary by the executive director of LOMAS. Judgment is entered for The Florida Bar, 650 Apala-chee Parkway, Tallahassee, Florida 32399, for recovery of costs from Saul Cimbler in the amount of $11,736, for which sum let execution issue.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, LEWIS and QUINCE, JJ., and HARDING, Senior Justice, concur.

      . Specifically, the referee found that in the Ruiz Del Vizo case, Cimbler made the trust account disbursements in order to complete the post-closing accounting; in the Dominguez case, Cimbler attempted to have the judgment on the pleadings set aside; and in the Narson case, Cimbler acted in good faith and was not solely responsible for the adverse outcome.

      . In Maier, the attorney stipulated to violating rules 4-1.3 (failure to act with reasonable diligence and promptness in representing a client), 4-1.4 (failure to keep a client reasonably informed about the status of a matter and promptly comply with requests for information, and failure to explain a matter to the extent reasonably necessary to permit a client to malte informed decisions about the representation), and 4-8.4(g) (failure to respond to any inquiry by a disciplinaiy agency when such agency is conducting an investigation into the lawyer’s conduct). See 784 So.2d at 412.

      . See R. Regulating Fla. Bar 3-5.1(e) (stating that "[a] suspension of more than 90 days shall require proof of rehabilitation and may require passage of all or part of the Florida bar examination”).

      .The referee in Roberts recommended a six-month suspension to run concurrently with a ninety-day suspension imposed in another case. Because the previous suspension had terminated prior to the Court's decision, the Court imposed a ninety-one day suspension to require proof of rehabilitation prior to reinstatement, which was the referee's intent. See 770 So.2d at 1209.

      . The referee recommended five years’ probation. However, under Rule Regulating the Florida Bar 3-5.1(c) a set term of probation cannot exceed three years.

      . On May 30, 2002, we issued an order suspending Cimbler, effective thirty days from that date and until further order of the Court. We subsequently granted Cimbler’s motion for thirty additional days to comply with our order. Accordingly, Cimbler has been suspended from the practice of law since July 29, 2002.