source: Caselaw Access Project

author: BRYAN, Judge. CRAWLEY, Presiding Judge, concurring specially.

license: Public Domain

text:
    VALLEY JOIST, INC. v. CVS CORPORATION and Halstead Contractors, LLC.
    2050160.
    Court of Civil Appeals of Alabama.
    Aug. 4, 2006.
    Certiorari Denied Oct. 13, 2006 Alabama Supreme Court 1051656.

      Christopher A. Bottcher, Anthony R. Smith, and Jaime C. Erdberg of Sirote & Permutt, P.C., Birmingham, for appellant.
    John M. Bolton III and Patrick L.W. Sefton of Sasser, Bolton, Stidham & Sef-ton, P.C., Montgomery, for appellees.
    Oscar M. Price III and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for amici curiae Associated Builders and Contractors of Alabama, Inc., and Alabama Associated General Contractors, in support of the ap-pellees.
   BRYAN, Judge.

Valley Joist, Inc., appeals from a summary judgment entered in favor of CVS Corporation and Halstead Contractors, LLC. We reverse and remand.

CVS contracted with Halstead Contractors to build a CVS pharmacy on real property owned by CVS. Halstead Contractors subcontracted with LaVergne Steel Corporation to provide materials and labor for the construction project. LaV-ergne Steel subsequently hired Valley Joist to provide materials to be used in the construction project. LaVergne Steel failed to pay Valley Joist for the materials that Valley Joist had provided.

On December 21, 2004, Valley Joist gave written notice to CVS, Halstead Contractors, and LaVergne Steel that Valley Joist was claiming a materialman’s lien on CVS’s property on which the CVS pharmacy had been built. On December 28, 2004, Valley Joist filed a verified statement of its materialman’s Ken. On February 24, 2005, Valley Joist sued CVS, Halstead Contractors, and LaVergne Steel, seeking to enforce and perfect the materialman’s lien against CVS’s property. Valley Joist’s complaint also alleged open account, account stated, and breach of contract against LaVergne Steel.

On March 30, 2005, CVS paid Halstead Contractors the remaining balance that CVS owed to Halstead Contractors on the construction contract. On April 15, 2005, a default judgment in the amount of $15,174.88 was entered in favor of Valley Joist against LaVergne Steel.

On July 5, 2005, Valley Joist moved for a summary judgment. On July 18, 2005, CVS and Halstead Contractors filed a motion for a summary judgment, which the trial court granted on October 11, 2005. Valley Joist timely appealed.

“Summary judgment is appropriate only when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P., and Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425 (Ala.1999).... In reviewing a summary judgment, an appellate court, de novo, applies the same standard as the trial court. Dobbs, supra.

Bruce v. Cole, 854 So.2d 47, 54 (Ala.2003).

“According to § 35-11-210, [Ala.Code 1975,] there are essentially two types of [materialman’s] liens, one for the full price of the materials furnished and another for the amount of the unpaid balance due the contractor from the owner. These two types of liens have been characterized as ‘unpaid balance’ liens and ‘full price’ liens. Hubbard, A Current Overview of Alabama’s Mechanic’s and Materialmen’s Lien Law, 49 Ala. Law. 203, 204 (1988).”

Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.2d 138, 141 (Ala.1990). Valley Joist sought to enforce and perfect an unpaid-balance materialman’s lien on CVS’s prbperty. To perfect an unpaid-balance lien, a materialman must: (1) provide written notice of the claimed lien to the owner; (2) file a verified statement of lien in the probate court in the county where the subject real property is located; and (3) file suit to enforce the lien and obtain a money judgment against the ma-terialman’s .direct debtor. § 35-11-210, Ala.Code 1975; and Grubbs v. Jenkins Brick Co., 571 So.2d 1119, 1120 (Ala.1990).

In granting Halstead Contractors’ and CVS’s summary-judgment motion, the trial court concluded that the present case was controlled by this court’s opinion in Burch v. First Coastal Building Supply, Inc., 606 So.2d 146 (Ala.Civ.App.1992). On appeal, CVS and Halstead Contractors argue, as they did in moving for a summary judgment, that the present case is controlled by Burch. In that case, Burch contracted with Atkinson to build a house on Burch’s property. 606 So.2d at 147. Atkinson hired Brassco, Inc., as a subcontractor, and Brassco in turn received materials from First Coastal Building Supply, Inc. Id. Brassco failed to pay First Coastal for the materials used in building the house. Id. Brassco subsequently filed for bankruptcy. Id. First Coastal filed a verified statement of lien and gave notice to Burch of the claimed lien on Burch’s property. 606 So.2d at 147-48. After receiving notice of the lien, Burch paid Atkinson the remaining unpaid-balance amount due on the construction contract between Burch and Atkinson. 606 So.2d at 148.

In reversing the trial court’s judgment enforcing First Coastal’s unpaid-balance lien, this court held that First Coastal was incapable of enforcing or perfecting its unpaid-balance lien because First Coastal could not obtain a money judgment against Brassco, which was immune from judgment under bankruptcy law. 606 So.2d at 149. After stating this holding, this court, in dicta, opined:

“We note that even if a money judgment could have been obtained against Brassco, First Coastal could not have perfected an unpaid balance lien against Burch’s property. At the time that First Coastal gave notice to Burch of its intention to establish a lien as required by § 35-11-210, the lien was inchoate and Burch was within her rights to pay off the unpaid balance directly to her contractor instead of Brassco. Where there is no unpaid balance due or to become due to the contractor from the owner, no lien can attach. Abell-Howe [Co. v. Industrial Dev. Bd. of Irondale, 392 So.2d 221, 225 (Ala.Civ.App.1980) ]. By paying off her contractor when she received notice of First Coastal’s intent to file a balance due lien and thus eliminating the unpaid balance due on the job, Burch protected her property from the imposition of an unpaid balance lien even if First Coastal had later been able to obtain a money judgment against Brassco.
“The materialman is required to give notice to the owner before filing an unpaid balance lien, thus giving the owner an opportunity to effect a settlement between himself, the contractor, and the supplier prior to attachment of the lien. This notice is for the protection of the owner. Abell-Howe. The lien statutes do nothing to preclude an owner who receives such notice from immediately paying off any unpaid balance to a contractor to prevent a balance due lien from attaching.”

Burch, 606 So.2d at 149 (emphasis omitted).

Relying on the above dicta from Burch, CVS and Halstead Contractors argue that, because CVS paid Halstead Contractors the unpaid balance on the construction contract before Valley Joist obtained a money judgment against LaV-ergne Steel, Valley Joist’s unpaid-balance lien could not attach to CVS’s property and was effectively extinguished. However, § 35-11-218, Ala.Code 1975, which was not addressed in Burch, provides:

“Every person, except the original contractor, who may wish to avail himself of the provisions of this division, shall before filing his statement in the office of the judge of probate, give notice in writing to the owner or proprietor, or his agent, that he claims a lien on such building or improvement, setting forth the amount thereof, for what, and from whom it is owing; and after such notice, any unpaid balance in the hands of the owner or proprietor shall be held subject to such lien. But the provisions of this section shall not apply to the case of any material furnished for such building or improvement, of which the owner was notified in advance as provided in section 35-11-210.”

(Emphasis added.) Section 35-11-218 provides that once a materialman gives proper notice of an unpaid-balance lien, any unpaid balance in the possession of the owner or proprietor must be held subject to that lien. On December 21, 2004, mate-rialman Valley Joist gave proper statutory notice of the unpaid-balance lien to CVS, the owner. Therefore, pursuant to § 35-11-218, CVS was required to hold any unpaid balance due to Halstead Contractors subject to Valley Joist’s unpaid balance lien. Despite dicta to the contrary in Burch, Valley Joist’s lien was not extinguished by virtue of CVS’s paying Hal-stead Contractors the remaining unpaid balance due on the construction project after notice of the lien was given to CVS. Accordingly, CVS and Halstead Contractors were not due a judgment as a matter of law and, therefore, were not due to be granted a summary judgment in their favor.

We reverse the summary judgment, and we remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, P.J., concurs specially, with writing.

MURDOCK, J., concurs in the result, without writing.

CRAWLEY, Presiding Judge,

concurring specially.

I concur in the reversal of the trial court’s summary judgment in favor of CVS and Halstead Contractors. I write specially to note that the result obtained here is supported by D.J. McDonald Stone Co. v. Stern & Marx, 142 Ala. 506, 38 So. 643 (1905), which was decided under a predecessor statute to Ala.Code 1975, § 35 — 11— 218. Although the issue in D.J. McDonald Stone Co. was whether an advance made to a contractor after the owner received notice of a materialman’s lien could defeat or impair the materialman’s lien, the language in the case is instructive:

“The [materialman] having a lien, under the statutes, upon any unpaid balance that may become due under the contract to the contractor, could the owner defeat or impair that lien by advancing money upon the contract to the contractor, without the consent of the lienor and when the contract makes no provision for it? This question must be answered in the negative unless there is some provision to be found in the statutes which authorizes the owner to make such an advance. For clearly, in the absence of some statutory provision, if the contractor ever earned this money by the performance of the contract, ... there is no way by which it could be discharged of the lien except by the consent of the lienor. To hold otherwise would render it impossible to enforce the statute. Indeed, to permit an owner to advance to a contractor a part of the contract price and to thus defeat the lien of a materialman or subcontractor, would confer upon them the power, in every instance, to destroy the purposes of the statutes. If payment may be anticipated and liens destroyed in this way, the statutes may as well be abolished. Where the contractor goes forward with performance under the contract, as here, an advancement of a part of the contract price amounts to no more than a payment to him on account of that performance and can have no greater effect upon the rights of a lienor than a payment to him after he has earned ⅞]”

142 Ala. at 510-11, 38 So. at 645.

      . Although a summary judgment was entered in favor of the three named defendants — CVS, Halstead Contractors, and LaVergne Steel Corporation — only CVS and Halstead Contractors are listed as appellees on the notice of appeal.

      . Although we acknowledge that the notice requirement is “for the protection of the owner,” Abell-Howe Co. v. Industrial Dev. Bd. of Irondale, 392 So.2d 221, 224 (Ala.Civ.App.1980), this fact in no way nullifies the plain language found in § 35-11-218.


author: BRYAN, Judge.

text:
    Darrell WHITE v. Charles DRIVAS.
    2050041.
    Court of Civil Appeals of Alabama.
    Sept. 29, 2006.

      N. Tracy Nickson, Prattville, for appellant.
    Allen C. Jones, Troy, for appellee.
   BRYAN, Judge.

The plaintiff Darrell White appeals a summary judgment in favor of the defendant Charles Drivas. We reverse and remand.

On February 25, 2004, White sued Dri-vas and other defendants, alleging claims of conversion and intentional infliction of emotional distress. White subsequently dismissed his claims against all defendants other than Drivas. Drivas answered White’s complaint and counterclaimed, alleging nuisance. White filed a motion for a partial summary judgment, which was supported by various evidentiary submissions. Drivas then filed a countermotion for a summary judgment on both of White’s claims, and he supported the coun-termotion with evidentiary submissions. White subsequently filed a response to Drivas’s countermotion for a summary judgment. Following a hearing on the pending motions, the trial court granted Drivas’s motion for a summary judgment on August 29,' 2005. White appealed the summary judgment to the supreme court, and the supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The trial court’s August 29, 2005, summary-judgment order did not adjudicate Drivas’s counterclaim alleging nuisance. “A ruling that disposes of fewer than all claims or relates to fewer than all parties in an action is generally not final as to any of the parties or any of the claims. See Rule 54(b), Ala. R. Civ. P.” Wilson v. Wilson, 736 So.2d 633, 634 (Ala.Civ.App.1999). A nonfinal order will not support an appeal. Williams Power, Inc. v. Johnson, 880 So.2d 459, 461 (Ala.Civ.App.2003). This court- remanded the cause to the trial court for the trial court either to certify its August 29, 2005, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., or to adjudicate Drivas’s counterclaim alleging nuisance. Drivas subsequently dismissed his counterclaim; therefore, White’s appeal is now an appeal from a final judgment.

The record on appeal establishes the following material facts. Drivas- leased to Johnny Childs a mobile home located on Drivas’s property. Unbeknownst to Dri-vas at the time, White resided at the mobile home as Childs’s guest during parts of 2003. White stored personal property belonging to him at the mobile home. White also stored his inoperable 1995 Chevrolet pickup truck at the mobile-home lot. In September 2003, the mobile-home lease agreement between Drivas and Childs was terminated, and Drivas helped Childs move out of the mobile home. At or around the time that Drivas helped Childs move out, Drivas transported personal property, some of which belonged to White and some of which belonged to Childs, from the mobile home to Drivas’s farm. Drivas stored the personal property at his farm. A few days after Childs vacated the mobile home, he retrieved some of his personal property from Drivas’s farm. At the time, Drivas believed that all of the personal property taken from the mobile home and stored at his farm belonged to Childs. When Childs moved out, Drivas also had White’s pickup truck towed by a wrecker from the mobile-home lot to Dri-vas’s farm, where it was stored. At the time, Drivas was unaware that White owned the pickup truck.

Approximately one to two months after Childs moved out of the mobile home, White asked Drivas to return White’s pickup truck and White’s other personal property that Drivas was storing at his farm. It appears from the record that Drivas was then in possession of the following items of personal property belonging to White: the pickup truck, a kitchen table with two matching chairs, and a couch with a matching love seat. Drivas refused to return White’s property, stating that White could not have his property unless he compensated Drivas for the costs Dri-vas had incurred in towing the pickup truck and storing White’s property. According to White’s deposition testimony, when White requested that his property be returned, Drivas told White that he would have to pay approximately “twelve hundred dollars, or something to that effect” in wrecker and storage costs in order to take possession of the property. Drivas testified by deposition that he did not tell White that he would have to pay approximately $1,200 for the return of his property. Drivas also testified that the wrecker and storage costs combined were about $400 or $500 at the time White requested the return of his property. White refused to pay Drivas, and Drivas retained White’s property.

“In reyiewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So .2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

On appeal, White argues that the trial court erred by entering a summary judgment on White’s conversion claim.

“[A] conversion is said to consist ‘ “either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiffs right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.” Clardy v. Capital City Asphalt Co., 477 So.2d 350 (Ala.1985), citing Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 322, 199 So. 734 (1940) (quoting Conner & Johnson v. Allen & Reynolds, 33 Ala. 515, 517 (1859)). But ‘[t]he bare possession of property without some wrongful act in the acquisition of possession, or its detention, and without illegal assumption of ownership or illegal user or misuser, is not conversion.’ Clardy, 477 So.2d at 352, citing Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am. St. Rep. 789 (1890).”

Martin v. Luckie & Forney, Inc., 549 So.2d 18, 19 (Ala.1989) (emphasis added).

“ ‘Four different actions may constitute conversion: a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse. National Surety Co. v. Applied Systems, Inc., 418 So.2d 847 (Ala.1982).’

“Tyler v. Equitable Life Assurance Society of the United States, 512 So.2d 55, 57 (Ala.1987).”

Jones v. DCH Health Care Auth., 621 So.2d 1322, 1323 (Ala.1993) (emphasis added). See also SouthTrust Bank v. Donely, 925 So.2d 934, 939-40 (Ala.2005).

“Conversions may be divided into four classes, (1) by a wrongful taking, (2) by an illegal assumption, (3) by an illegal user or misuser, (4) by a wrong detention. In the first three classes, there is no necessity for a demand and refusal. In the latter class, a demand and refusal is required as the detention of a chattel furnishes no evidence of a disposition to convert to the holder’s own use, or to divest the true owner of his property.”

Scott Paper Co. v. Novay Cherry Barge Serv., Inc., 48 Ala.App. 368, 371, 265 So.2d 150, 153 (Civ.App.1972). See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 15, at 99 (5th ed. 1984) (“Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of [conversion].” (footnote omitted)).

“ ‘There is no doubt that an absolute or unqualified refusal to surrender possession of personal property to one entitled thereto constitutes a conversion. A limited or qualified refusal to surrender the property is not per se a conversion. Bolling v. Kirby, 90 Ala. 215, 7 So. 914 [ (1890) ]. But the refusal must be a reasonable qualification or requirement and stated in good faith.’ ”

Gabrielson v. Healthcorp of Eufaula, Inc., 628 So.2d 411, 414 (Ala.1993) (quoting Scott Paper Co., 48 Ala.App. at 370, 265 So.2d at 153). “Whether or not the refusal to surrender possession of personal property is based upon a reasonable qualification or requirement is a question for the jury or ... the trier of the facts.” Scott Paper Co., 48 Ala.App. at 371-72, 265 So.2d at 153.

White argues that the summary judgment on his conversion claim should not have been granted because, White says, there is a genuine issue of material fact regarding that claim. The trial court’s order granting Drivas’s motion for a summary judgment stated, in pertinent part: “The undisputed facts overwhelmingly show that the taking of [White’s] property, and its detention, by [Drivas] was not wrongful or illegal. The undisputed facts further show that [Drivas] never illegally assumed ownership nor illegally used or misused the property.” Although the record on appeal contains no evidence indicating that the initial taking of White’s property was wrongful, a genuine issue of material fact exists regarding whether Dri-vas’s requirements for returning White’s property were reasonable. White requested that Drivas return White’s property. Drivas refused to return White’s property unless White paid the costs incurred by Drivas in towing the pickup truck and storing the property. White testified that Drivas qualified the return of White’s property upon White’s paying Drivas approximately $1,200 for towing the pickup truck to Drivas’s farm and storing the pickup truck, a sofa, a love seat, a kitchen table, and two kitchen-table chairs on the farm for one to two months. Drivas disputes that he told White that he would have to pay $1,200 in order to retrieve the property, stating that the wrecker and storage costs were considerably lower than that amount when White tried to retrieve the property.

Although Drivas’s “ ‘qualified refusal to surrender the property’ ” was “ ‘not per se a conversion,’ ” that “ ‘refusal must be a reasonable qualification or requirement and stated in good faith.’ ” Gabrielson, 628 So.2d at 414 (quoting Scott Paper Co., 48 Ala.App. at 370, 265 So.2d at 153). Whether Drivas’s requirement for relinquishing White’s property is reasonable given the facts of this case is a question for the trier of fact. Scott Paper Co., 48 Ala. App. at 371-72, 265 So.2d at 153. Viewing the facts in the light most favorable to the nonmovant White, as this court is required to do on an appeal from a summary judgment, Hobson, 690 So.2d at 344, we conclude that the question regarding the reasonableness of Drivas’s requirement for the return of White’s property is a question of fact for the trier of fact to decide.

Because there is a genuine issue of material fact regarding the reasonableness of Drivas’s retention of White’s property, we reverse the summary judgment in favor of Drivas on White’s conversion claim and remand the cause for further proceedings consistent with this opinion.

Drivas’s motion seeking damages for a frivolous appeal is denied.

REVERSED AND REMANDED.

CRAWLEY, P.J., and PITTMAN and MURDOCK, JJ., concur.

THOMPSON, J., dissents, without writing.

      . White does not argue that the trial court erred by entering a summary judgment in Drivas's favor on White's claim alleging intentional infliction of emotional distress. Therefore, White has waived that issue. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (" 'When an appellant fails to properly argue an issue, that issue is waived and will not be considered. Boshell v. Keith, 418 So.2d 89 (Ala.1982).’ Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996). ‘An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief. Ex parte Riley, 464 So.2d 92 (Ala.1985). Braxton v. Stewart, 539 So.2d 284, 286 (Ala.Civ.App.1988).'').


author: COBB, Judge.

text:
    Darryl D. RUSSELL v. STATE.
    CR-04-1153.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 2005.
    Darryl Dewayne Russell, pro se.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   On Rehearing Ex Mero Motu

COBB, Judge.

This Court’s opinion of November 23, 2005, is withdrawn, and the following substituted therefor.

Darryl D. Russell appeals the trial court’s denial of his Rule 32, Ala. R.Crim. P., postconviction petition challenging the revocation of his work-release status.

On June 29, 2000, Russell pleaded guilty to unlawful possession of a controlled substance. He was sentenced to 20 years in prison under the Habitual Felony Offender Act, was ordered to pay $236 in court costs, was assessed $2,000 pursuant to the Drug Demand Reduction Assessment Act, and was ordered to pay $50 to the crime victims compensation fund. (C. 25.) On January 10, 2001, Russell was placed in the Lauderdale County Work Release Program. (C. 26.) On May 6, 2004, the State filed a motion to revoke Russell’s work-release status because he “claim[ed] to work jobs that did not exist [and] is also the target of a federal investigation on a charge of conspiracy to traffic cocaine.” (C. 26-27.) On May 20, 2004, the trial court held a hearing on the motion and on May 28, 2004, revoked Russell’s work-release status. (C. 26.)

On January 24, 2005, Russell filed a Rule 32 petition challenging the revocation. (C. 10.) On February 25, 2005, in a written order, the trial court summarily denied the petition. (C. 41.) On appeal, Russell argues that the trial court abused its discretion in denying his petition because, he says, the revocation was based purely on hearsay evidence, he had ineffective assistance when his attorney failed to timely appeal through no fault of Russell’s, and he was never provided with a copy of the rules and regulations of the work-release program.

I.

Russell argues that he was not provided with a copy of the rules and regulations of the work-release program and that the revocation was based solely on hearsay evidence. Russell failed to argue at the revocation hearing that he was never provided with a copy of the rules and regulations of the work-release program or that the revocation was based purely on hearsay evidence. Because these claims are nonjurisdictional, they are procedurally barred under Rules 32.2(a)(3) and (5), Ala. R.Crim. P., because they could have been, but were not, raised at trial or on direct appeal.

II.

Russell argues that he received ineffective assistance of counsel when his attorney failed to timely appeal the trial court’s revocation of his work-release status. According to Rule 32.1(f), Ala. R.Crim. P., the issue of a defendant’s failure to appeal because counsel was ineffective and through no fault of the petitioner’s can be raised for the first time in an appeal from the denial of a Rule 32 petition:

“(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.”

Russell contends that he told his attorney to appeal the trial court’s revocation of his work-release status but that the attorney failed to do so. This Court has held that an attorney’s failure to timely appeal after a defendant requests that the attorney appeal the revocation of his probation is grounds for remand for the trial court to consider the factual basis of the defendant’s ineffective-assistance-of-counsel claim:

“The appellant argues that the circuit court did not have jurisdiction to revoke his probation because ‘[t]he process for revoking [his] probation had not begun before [the] probationary period expired.’ (C.R. 14.) He also argues that he did not appeal the revocation of his probation through no fault of his own. Specifically, he contends that he told his attorney to appeal the revocation, but that his attorney did not file an appeal. The State did not properly address the specific claims the appellant raises. Therefore, it did not refute those claims. Further, in its order dismissing the petition, the circuit court did not properly address the specific claims the appellant raises. Although the State and the circuit court make references to an extension of the terms of the appellant’s probationary period, neither specifically asserts, and the record does not establish, that his probationary period was extended. Also, neither the State nor the circuit court refutes the appellant’s allegation that he told his attorney to appeal the revocation of his probation and that his attorney refused to do so. Therefore, the appellant’s claims that the circuit court did not have jurisdiction to revoke his probation and that he did not appeal the revocation of his probation through no fault of his own appear to be meritorious.
“Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact concerning the appellant’s specific claims.”

Wilson v. State, 855 So.2d 579, 580-81 (Ala.Crim.App.2002)(footnote omitted).

Therefore, we remand this case to the circuit court with instructions that the court make specific findings of fact on Russell’s specific claim that he requested that his attorney appeal the revocation of his work-release status and that the attorney failed to do so. On remand, the circuit court may conduct an evidentiary hearing, and it may grant any relief it deems appropriate, including granting Russell an out-of-time appeal. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this Court within 49 days of the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, any response from the State and/or a transcript of the eviden-tiary hearing.

For the foregoing reasons, this case is remanded to trial court with instructions.

ON REHEARING EX MERO MOTU: OPINION OF NOVEMBER 23, 2005, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH INSTRUCTIONS.

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

      . Russell raised other issues in his petition that he does not raise on appeal; thus, those issues are deemed waived.

      . In its brief, the State agrees that this case should be remanded for the trial court to make a factual finding as to whether Russell received ineffective assistance of counsel in failing to timely file a notice of appeal.

       Note from the reporter of decisions: On October 20, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PER CURIAM. COBB, JUDGE,

text:
    Kevin LAWSON v. STATE of Alabama.
    CR-05-0010.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Oct. 6, 2006.

      William Morgan Rayborn, Brantley, for appellant.
    Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   PER CURIAM.

Kevin Lawson appeals his August 3, 2005, conviction for second-degree robbery, violation of § 13A-8-42, Ala.Code 1975, by the Montgomery Circuit Court. He was sentenced in accordance with the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975, to 20-years’ imprisonment. He was also ordered to pay court costs, restitution, and $50 to the victims compensation fund in accordance with § 15-23-17(b), Ala.Code 1975.

Lawson and an accomplice robbed a Spectrum convenience store in Montgomery on April 28, 1995. He was arrested the same day, and he posted a $10,000 appearance bond and was released from the Montgomery County jail on May 1, 1995. (C. 2.) He was indicted on June 30, 1995. (C. 2.) From July 10 until August 2, 1995, Lawson was incarcerated at the Au-tauga County jail on a different charge. He was then released to the Clanton Police Department. (C. 94.) A letter contained in the record from Autauga County Sheriff Herbie Johnson states: “A hold had been placed by Montgomery County and when they were notified subject was being released, they advised they had nothing on him.” (C. 94.)

The matter was set for trial on August 28, 1995, but Lawson failed to appear for trial. The trial was reset for September 19, 1995, but again Lawson failed to appear for trial. A capias warrant was issued for Lawson on September 22, 1995.

Sometime before December 1995, Lawson was incarcerated at Rikers Island, a jail for New York City. (C. 14.) He was to be released from Rikers Island on August 26, 1996, but a robbery charge was pending in New York City. (C. 39.) From 1996 until 2004, Lawson was incarcerated in the State of New York, apparently for the conviction of the aforementioned robbery charge. (R. 13.) While Lawson was incarcerated in New York, Autauga County placed a detainer on Lawson. He waived extradition, but Autauga County decided not to prosecute Lawson, and the detainer was removed.

On June 9, 2005, Lawson was detained by the New York State Division of Parole on the Montgomery County robbery charge. (R. 4.) Lawson waived extradition, and the capias warrant was executed on July 2, 2005. (R. 4; C. 2.) A two-day trial was held August 2-3, 2005, before a Montgomery County jury which found Lawson guilty of second-degree robbery. (C. 3.)

I.

Lawson argues on appeal that he was not properly arraigned for the robbery charge and that the trial court thus committed reversible error. The State, in a 12-line argument in its brief, summarily dismisses Lawson’s argument as not properly preserved for appellate review. A review of the record, however, makes it obvious that this issue was properly preserved for our review.

In his “Motion to Dismiss for Failure to Provide a Speedy Trial” filed July 6, 2005, Lawson stated:

“The case action summary sheet does not indicate that [Lawson] was arraigned; however, there is an entry dated August 28, 1995, stating that [Lawson] failed to appear for trial, at which time a forfeiture and capias was issued. It does not appear, however, from the file that [Lawson] was ever notified of his trial date.”

(C. 47)(emphasis added). Further, in his “Motion for Defendant to be Released on Bail” filed July 7, 2005, Lawson stated:

“The case action summary sheet indicates that [a forfeiture and capias] was issued on August 28, 1995; however, [Lawson] has advised the undersigned attorney that he was never advised of his trial date. Further, the case action summary sheet does not indicate that the Defendant was ever arraigned.

(C. 45)(emphasis added). Immediately before trial, the trial judge held a hearing on Lawson’s motion to dismiss on speedy-trial basis, during which Lawson testified. During his testimony, the following occurred:

“Q. [Defense Counsel]: Were you ever arraigned — arraignment is where you plead either guilty or not guilty. You go before the judge and plead either guilty or not guilty. Were you ever arraigned on the charge of Robbery Two here in Montgomery?
“A. [Lawson]: No, I was not.”

(R. 5.) After Lawson testified, the following exchange occurred:

“[DEFENSE COUNSEL]: Your Honor, I would ask the court to take judicial notice of the documents that are in the court file. And would call the court’s attention to a letter which I’m going to introduce into evidence as a part of this hearing marked Defendant’s Exhibit 1. It purports to be a letter from the sheriff of Autauga County stating that Mr. Lawson was incarcerated in the Autauga County jail from July 10, '95 through August 2, '95.
“That he had been brought to that facility by Steve Roberts Bonding Company. And that Mr. Lawson was released from the Autauga County jail to the Clanton Police Department. That a hold had been placed by Montgomery County. And when Montgomery County was notified that Mr. Lawson was being released, Montgomery County advised that they had nothing on him.
“[PROSECUTOR]: Judge, I’m going to object to that being admitted as evidence. [Defense counsel] has failed to authenticate that.
“THE COURT: It is part of the court file. All of that is going to be considered and [defense counsel] just at the same time your client has just testified he didn’t know anything about this until '05. The court file reflects that he was served in 1995. So that’s the reason we have a '95 case number. So just so that the file is clear and the testimony is clear, I know your client says he didn’t know, he failed to show up for the first trial we had set back in August of '05 after being served. Okay.
“[DEFENSE COUNSEL]: Judge, just for the sake of clarity. When you say after being served, you mean served with the indictment or—
“THE COURT: Yes, sir. They wouldn’t have made a file. I wouldn’t have this red file marked 1995 unless he was served with a copy of the indictment. The red file is not created until he is served.
“[DEFENSE COUNSEL]: Judge, with all due respect, the Alabama Rules of Criminal Procedure provide that if somebody has been arrested for a criminal offense and is released on bond, that that person is not rearrested after indictment unless the bond changes. If the bond goes higher, then the person is due to be rearrested in order for that person to make the higher bond.
“So I think that was the procedure back in 1995 where the indictment — the defense attorney would be notified that [Lawson] had been indicted and then normally the defense attorney would advise the client of that fact or mail the client a notice, have the client appear to plead either guilty or not guilty or to sign a plea of not guilty and waiver of arraignment.
“In this case there is nothing on the case action summary sheet to indicate that [Lawson] was ever advised of being indicted. And there is nothing on the case action summary sheet to indicate that he toas ever arraigned on the indictment.
“THE COURT: It is because he absented himself from the jurisdiction for the trial. Had he been here, those matters would have been taken care of.”

(R. 7-11) (emphasis added). The trial court then stated:

“THE COURT: Of course he knows he has a trial. He made bond to start with. Of course he knows he has a case here. So sorry I can’t agree with you on that. And the records will speak for whatever the records say.”

(R. 11-12.) After the trial, Lawson filed a motion in arrest of judgment or for a new trial in which he stated:

“This Motion In Arrest of Judgment/Motion For New Trial is due to be granted unless the State can prove that the court file affirmatively shows that [Lawson] was arraigned and entered a plea to the indictment. O’Leary v. State, [417 So.2d 214 (Ala.Crim.App. 1980) ].”

and

“The indictment against [Lawson] should have been dismissed in that [Lawson] was denied a speedy trial. [Lawson] was indicted by the Montgomery County Grand Jury on June 30, 1995. The Case Action Summary Sheet does not reflect that [Lawson] was ever arraigned, nor does the court file reflect that [Lawson] was ever given notice of his trial date.”

(C. 88-89).

It is readily apparent from the foregoing that before trial Lawson placed the trial court on notice that he had not been arraigned, and the trial court still failed to arraign him. Thus this issue is preserved for our review.

We now turn to the merits of Lawson’s argument that the trial court committed reversible error by not arraigning him. Section 15 — 15—20.1(c), Ala.Code 1975, states:

“Upon the filing of an information, the court shall ascertain whether the defendant has retained counsel, and, shall appoint counsel if the defendant is indigent. The court shall set an arraignment date to enable the defendant to formally enter a plea of guilty in open court. Arraignment may be held and the guilty plea entered at any time after the filing of an information.”

The Alabama Rules of Criminal Procedure also address this issue:

“(a) In General. Except as provided in section (b), no defendant shall be tried for the commission of any misdemeanor or felony offense until he has been arraigned in open court.”

Rule 14.1, Ala. R.Crim. P. Arraignment may happen any time before trial. In fact, a defendant may be arraigned after the jury has been empaneled. Carroll v. State, 445 So.2d 952 (Ala.Crim.App.1983).

A defendant waives arraignment if he does not timely object to not being arraigned. “ ‘Even arraignment and plea can be waived by a defendant’s failure to object to the lack thereof until after the jury has returned a verdict.’ ” Soriano v. State, 527 So.2d 1367, 1372 (Ala.Crim.App.1988) (quoting Smith v. State, 507 So.2d 579, 580 (Ala.Crim.App.1987)).

However, if a defendant brings to the trial court’s attention before trial the fact that he has not been arraigned, and the trial court fails to remedy the situation, this Court must reverse the trial court’s judgment and remand the case for a new trial. Benson v. State, 473 So.2d 1132 (Ala.1985). See also Hovater v. State, 552 So.2d 191 (Ala.Crim.App.1989); McMurray v. State, 373 So.2d 872 (Ala.Crim.App.1979); Pugh v. State, 343 So.2d 793 (Ala.Crim.App.1977); and Rorex v. State, 44 Ala.App. 112, 203 So.2d 294 (1967).

We have thoroughly reviewed the record and find no indication that Lawson was ever arraigned in this matter or that he waived arraignment. This supports Lawson’s sworn testimony that he was never arraigned. Therefore, the trial court’s judgment must be reversed, and the case remanded for a new trial. The trial court is also instructed to arraign Lawson before the new trial.

II.

Lawson also argues that he was deprived of his right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. Although the judgment is being reversed on other grounds, we shall address the merits of this issue because it may be raised again during any new trial.

Over 10 years elapsed between when the commission of the crime and Lawson’s trial on the charges stemming from the crime. Lawson alleges this was an undue delay that prejudiced his ability to properly defend the charges. We disagree.

No fixed and hardened rule can be used to determine whether an individual has been unduly prejudiced by a delay between arrest and trial. Instead, a balancing test which weighs four factors is to be applied: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) prejudice suffered by the defendant due to the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

A. Length of Delay

Under the Barker analysis, “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” 407 U.S. at 530, 92 S.Ct. 2182. In this matter, Lawson was arrested on April 28, 1995, and was indicted on June 30, 1995, but his trial did not commence until August 2, 2005. (C. 3). Obviously, a 10-year delay is presumptively prejudicial. See, e.g., State v. White, [Ms. CR-05-0034, June 30, 2006] — So.2d —(Ala.Crim.App.2006) (42-month delay presumptively prejudicial); Irvin v. State, 940 So.2d 331 (Ala.Crim.App.2005) (32-month delay presumptively prejudicial); and Lofton v. State 869 So.2d 533 (Ala.Crim.App.2002) (41-month delay presumptively prejudicial). Thus, we proceed to examine the remaining Barker criteria.

B. Reason for Delay

In analyzing the reason for a delay, the Alabama Supreme Court has stated:

“The State has the burden of justifying the delay. See Barker, 407 U.S. at 531, 92 S.Ct. 2182; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531, 92 S.Ct. 2182. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531, 92 S.Ct. 2182. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘ “to gain some tactical advantage over (defendants) or to harass them.’” 407 U.S. at 531 & n. 32, 92 S.Ct. 2182 (quoting United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Ex parte Carrell, 565 So.2d [104,] 108 [(Ala.1990)]. Justified delay — which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible — is not weighted against the State. Barker, 407 U.S. at 531, 92 S.Ct. 2182; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker. ”) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

Ex parte Walker, 928 So.2d 259, 265 (Ala.2005).

Apparently while awaiting trial in this matter, Lawson traveled to New York, where he was incarcerated on another robbery charge. It is undisputed the reason for the delay between Lawson’s arrest and his trial was his incarceration in New York. However, “[a]n accused’s right to a speedy trial remains undiminished even when he is already serving a prison sentence.” Aaron v. State, 497 So.2d 603, 604 (Ala.Crim.App.1986). See also Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). In most cases where a defendant has absented himself from the jurisdiction, his absence would be considered justified delay. However, because of Smith v. Hooey and its progeny, Lawson’s absence cannot be considered justified delay. The record is devoid of any indication that the State intentionally did not seek to bring Lawson back to Alabama for trial in order to thwart his defense or to gain a tactical advantage over Lawson. Thus, the State’s failure to have Lawson returned to Alabama for trial constitutes negligent delay which weighs slightly against the State. In analyzing this matter, it should be noted that this matter was scheduled for trial three months after Lawson’s arrest. Lawson failed to appear for trial, and the trial was rescheduled for a month later. Again Lawson failed to appear. Lawson thus was provided, an opportunity for trial 10 years before his trial actually occurred.

C. Assertion of the Right

The record is devoid of any indication that Lawson asserted his right to a speedy trial until July 6, 2005, when he filed a motion to dismiss the prosecution against him premiséd upon the State’s failure to provide him with a speedy trial. Lawson’s trial was held less than a month after he filed this motion. Lawson’s failure for 10 years to assert his right to a speedy trial “ ‘ “tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date. Stevens v. State, 418 So.2d 212, 214 (Ala.Cr.App.1982).” Lewis v. State, 469 So.2d [1291,] 1294 [ (Ala.Crim.App.1984) ].’ Vincent v. State, 607 So.2d 1290, 1294 (Ala.Crim.App.1992).” State v. White, — So.2d at-.

D. Prejudice to the Defendant

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ Doggett [v. United States], 505 U.S. [647,] 656, 112 S.Ct. 2686 [ (1992) ], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 532, 92 S.Ct. 2182. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: ‘ “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence.’ Doggett, 505 U.S. at 654, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182, and citing Smith v. Hooey, 393 U.S. 374, 377-79, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966)). ‘Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” ’ 505 U.S. at 654, 112 S.Ct. 2686 (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182).”

Ex parte Walker, 928 So.2d at 266-67.

At the hearing on Lawson’s motion to dismiss for failure to provide a speedy trial, Lawson’s attorney argued that he had been prejudiced because he was unable after 10 years to locate Tina Stollenweek, an employee of the Spectrum convenience store at the time it was robbed. Although Lawson’s attorney searched the City Directory of the City of Montgomery and spoke with Stollenweck’s relatives, no one knew of her whereabouts. During the hearing, Lawson’s attorney stated: “So we don’t know what Tina Stol-lenweck may have had to say. But it is certainly conceivable if that — if she was there on that occasion or if she had some knowledge of what had happened, we have lost out on the opportunity to call her as a witness.” (R. 21.) In his brief to this Court, Lawson concedes that “[w]e only know through the power of suggestion that Ms. Stollenweek could have aided Mr. Lawson.” (Appellant’s reply brief, p. 10). In order to show prejudice, Lawson must point to specific facts in evidence and not just mere speculation of what a witness may or may not have known. “ ‘ “[S]pecu-lative allegations, such as general allegations of loss of witnesses and failure of memories, are insufficient to demonstrate the actual prejudice-....”’ that the appellant must establish.” Irvin v. State, 940 So.2d 331, 344 (Ala.Crim.App.2005) (quoting Haywood v. State, 501 So.2d 515, 518 (Ala.Crim.App.1986), quoting in turn United States v. Butts, 524 F.2d 975, 977 (5th Cir.1975)). Thus, Lawson failed to show any prejudice which occurred because of the delay.

The 10-year delay between Lawson’s arrest and trial, while presumptively prejudicial, does not constitute a Sixth Amendment violation. Lawson’s case was set for trial twice within four months of his arrest, yet Lawson failed to appear. Although the State should have attempted to have Lawson extradited from New York to stand trial, such inaction was negligent, at most. Lawson further failed for 10 years to assert his right to a speedy trial. Finally, Lawson failed to show that he was prejudiced by this delay. Because his right to a speedy trial was not violated, Lawson is not entitled to any relief as to this claim.

Because the record fails to reflect that Lawson was arraigned before trial, the judgment of the Montgomery Circuit Court is reversed, and the case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, J., concurs specially, with opinion, joined by McMILLAN, P.J., and BASCHAB and SHAW, JJ.; WISE, J„ recuses herself.

COBB, JUDGE,

concurring specially.

Only because this Court is bound by the precedent.of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “has no authority to declare unsound and overrule cases of the supreme court” do I concur with the other members of this Court in reversing the Montgomery Circuit Court and remanding this matter for a new trial. Hampton v. State, 455 So.2d 149, 152 (Ala.Crim.App.1984) (abrogated on other grounds by McKinney v. State, 511 So.2d 220 (Ala.1987)).

Arraignment proceedings have their origins in English , common law. • As Justice Mayfield of the Alabama Supreme Court explained almost a century ago: :

“An arraignment at English common law was much more formal than with us now. ‘ Under the former, Lord Hale says: ‘An arraignment consists of three things: First, the calling of the prisoner 'to the bar by his name and commanding him to hold up his right hand, which, though it may seem a trifling circumstance, yet it is of importance, for, by holding up his hand, constat de persona indictati, and he owns himself to be of that name; second, reading the indietment distinctly to him in English, that he may understand his charge; third, demanding of him whether he be guilty or not guilty, and if he pleads not guilty then the clerk joins issue with' him cul. prist, and enters the prisoner’s plea, then demands how he will be tried. The common answer is “By God and the country,” and thereupon the clerk enters po. se., and prays to God to send him a good deliverance.’
“With us, however, it is nothing more than calling the accused to the bar of the court, and reading or explaining the indictment to him, and demanding his plea. Its only purpose is to obtain from the accused his answer or plea to the indictment — Crain v. United States, 162 U.S. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097 [ (1896) ]; Early v. State, 1 Tex.App. 248, 28 Am. Rep. 409 [(1876)]. Our statutes (section 7565 of the Code of 1907[]) directs that if the defendant on arraignment refuses or neglects to plead, or' stands mute, the- court must cause the plea of not guilty to be entered from him. Under our practice and statutes, one charged of a capital offense is required to be arraigned, and his plea to be interposed, at least one entire day-before the day of the trial, so that it may be determined whether or not he is entitled to a special venire for his trial. If, on arraignment, he, pleads 'guilty,’ he is not entitled to the special venire; if he pleads ‘not guilty,’ he is, and this special venire, together with a copy of the indictment, must be served upon him or upon his counsel one entire day before trial. Code, §§ 7566,7840.”

Howard v. State, 165 Ala. 18, 27-28, 50 So. 954, 957-58 (1909).

More recently this Court observed, “the ‘common law formalities attendant on arraignment are no longer required. Boyd v. State, 41 Ala.App. 507, 138 So.2d 60 (1962). Its only purpose is to obtain from the accused his answer or plea to the indictment.’ See also, Carroll v. State, 445 So.2d 952 (Ala.Cr.App.1983); Watts v. State, 460 So.2d 204 (Ala.1983).” O’Neal v. State, 494 So.2d 801, 803 (Ala.Crim.App.1986) (quoting Headley v. State, 51 Ala. App. 148, 151, 283 So.2d 458 (Crim.1973)).

As early as 1891, the Alabama Supreme Court held that “[t]here can be no trial on the merits in a criminal case until the defendant has pleaded not guilty, or. this plea has been entered for him by the court.” Jackson v. State, 91 Ala. 55, 57-58, 8 So. 773, 774 (1891). In .the intervening decades, this Court has •intermittently been faced with similar situations:.and has held that reversible error occurs when the trial court fails to arraign a defendant and the defendant places the trial court on notice prior to trial of this omission. See, e.g., Collins v. State, 21 Ala.App. 192, 106 So. 624 (1925); Howard v. State, supra; Presley v. State, 22 Ala.App. 167, 113 So. 485 (1927); Chesnut v. State, 35 Ala.App. 376, 47 So.2d 248 (1950); Rorex v. State, 44 Ala.App. 112, 203 So.2d 294 (1967); Pugh v. State, 343 So.2d 793 (Ala.Crim.App.1977); McMurray v. State, 373 So.2d 872 (Ala.Crim.App.1979); Hovater v. State, 552 So.2d 191 (Ala.Crim.App.1989). As recently as 1985 the Alabama Supreme Court reaffirmed this proposition of law. See Ex parte State, 473 So.2d 1132 (Ala. 1985).

The record clearly indicates that although Lawson may not have been arraigned, he received a fair trial before a jury of his peers. The trial court treated Lawson like any other defendant who had been properly arraigned and pleaded not guilty to the offense charged. Lawson thus suffered no prejudice by the trial court’s apparent failure to arraign him.

Because of controlling precedent, this Court is forced to reverse and remand this matter on a technicality even though the record reveals that Lawson received a fair trial and all the constitutional guarantees afforded an indictee who has been properly arraigned and advised of his other rights. Remanding this matter for retrial is a wasteful use of Alabama’s tax dollars and an insult to the concept of judicial economy. I therefore encourage the Alabama Supreme Court to reconsider the precedent set forth by Jackson, supra, Ex parte State, supra, and their progeny so that valuable judicial resources will not be wasted in such a manner as this.

      . The issue that the appellant now argues was brought to the attention of the trial court by able trial counsel and was extensively discussed with the trial court at a hearing before trial. This Court is at a loss as how it could be argued that this issue is not preserved for appellate review.

      . Currently codified as § 15-15-1, AlalCode 1975.


author: SHAW, Judge. BASCHAB, JUDGE,

text:
    Terrell M. ENGLISH v. STATE of Alabama.
    CR-05-0424.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Oct. 27, 2006.

      John Thomas Stamps III, Bessemer, for appellant.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

BASCHAB, JUDGE,

concurring in part and dissenting in part.

I concur to affirm the appellant’s conviction. However, because the execution of his sentence is not legal, I must respectfully dissent as to his sentence.

In this case, the trial court sentenced the appellant to serve a term of five years in prison, but split the sentence and ordered him to serve “180 days Minimum in the Disciplinary Rehabilitation Program of the State of Alabama (Boot Gamp) and upon successful completion thereof, the Defendant is to be returned to this Court for further hearing.” (C.R. 16.) The trial court did not impose a period of probation to follow the period of incarceration.

In Madden v. State, 864 So.2d 395, 396-99 (Ala.Crim.App.2002), this court addressed the requirements when imposing a split sentence pursuant to § 15-18-8, Ala. Code 1975, as follows:

“Madden filed the petition on September 10, 2001. On the Rule 32 form, Madden indicated that he had pleaded guilty on September 7, 2000, to theft of property in the first degree; that the trial court had sentenced him to 15 years’ imprisonment; that the sentence was split and he was ordered to serve 6 months in confinement; and that he did not appeal his conviction. As for the grounds raised in the petition, Madden checked the line on the Rule 32 form indicating that ‘[t]he trial court was without jurisdiction to render the judgment or to impose the sentence,’ but he did not attach anything to the Rule 32 form setting forth the factual basis for this claim. (C. 5.) On the Rule 32 form, Madden also answered ‘yes’ to question no. 10 asking if, other than a direct appeal, he had ‘previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal.’ (C. 3.) Under question no. 11 on the form, asking what other petitions, applications, or motions he had filed, Madden stated that he had filed a ‘probation hearing’ in the ‘Court of Appeals,’ and that he had raised the ground that the ‘trial court lost jurisdiction to put defendant on probation after 30 days from date the 6-month sentence was completed, when sentencing order did not mention probation would follow after sentence was completed.’ (C. 3.) On October 22, 2001, Madden filed a motion requesting that the circuit court grant his Rule 32 petition and set aside his conviction because the State had not filed a response to the petition within 30 days as required by Rule 32.7(a), Ala. R.Crim. P.
“On November 27, 2001, the circuit court, apparently believing that Madden’s answers to question nos. 10 and 11 on the Rule 32 form were the grounds of Madden’s petition, issued the following order:
“ ‘This cause came before the court on a Rule 32 filed by the defendant. The defendant alleges this Court lost jurisdiction to place the defendant on probation because such order was entered more than thirty (30) days from the date of his original sentencing.
“ ‘The State failed to respond to the defendant’s Rule 32, as required by Rule 32.7(a).
“ ‘Because the State failed to respond, the defendant’s Rule 32 is GRANTED and the Court’s order of March 30, 2001, placing the defendant on probation, is RESCINDED. Consequently, the Court’s order imposing the defendant’s fifteen (15) year sentence is RESCINDED.
“‘The defendant’s request for his conviction to be set aside is DENIED.’
“(C. 12.) On December 12, 2001, Madden filed what he styled as a ‘Motion to Clarify Order Denying Portion of Rule 32.’ In that motion, he asked the court to clarify its order purporting to rescind his 15-year sentence and his probation, but denying his request to set aside his conviction. He stated that the circuit court had granted Rule 32 relief on claims he had not raised in his petition, and that he was ‘confused on how the court came up with its order or where these issues the court ruled on came from’; he requested that the circuit court ‘rule on the issues presented in the Rule 32.’ (C. 16-17.) The circuit court denied the motion.
“On appeal, Madden argues that the circuit court erred in granting Rule 32 relief on issues that were not raised in his petition, i.e., rescinding his 15-year sentence and his probation, and that the circuit court erred in not setting aside his conviction on the ground that the trial court lacked jurisdiction to accept his guilty plea. The State argues that the circuit court correctly rescinded its order placing Madden on probation because, it says, the court did not have jurisdiction six months after imposing sentence to modify the sentence by placing Madden on probation; that the circuit court improperly rescinded Madden’s 15-year sentence for the same reason; and that the circuit court properly denied Madden’s request to have his conviction set aside. We affirm the judgment of the circuit court in part, reverse in part, and remand with directions.
“The circuit court erred ... in rescinding Madden’s 15-year sentence. Madden pleaded guilty to theft of property in the first degree, a Class B felony, see § 13A-8-3(c), Ala.Code 1975, punishable by ‘not more than 20 years or less than 2 years.’ § 13A-5-6(a)(2), Ala. Code 1975. His 15-year sentence was within the statutory range and, therefore, was a valid sentence.
“It appears, however, that the execution of that sentence, i.e., the manner in which the court split the sentence, may have been invalid. See, e.g., Havis v. State, 710 So.2d 527 (Ala.Crim.App.1997); Berry v. State, 698 So.2d 225 (Ala.Crim.App.1996); and Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992)(all recognizing that although a sentence may be valid, i.e., within the statutory range, the manner in which the sentence is ordered to be executed under § 15-18-8, Ala.Code 1975, may be invalid). Section 15-18-8, Ala.Code 1975, provides, in pertinent part:
“ ‘(a) When a defendant is convicted of an offense and receives a sentence of 20 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he or she may order:
“ ‘(1) That the convicted defendant be confined in a prison, jail-type institution, or treatment institution for a period not exceeding three years in cases where the imposed sentence is not more than 15 years, and that the execution of the remainder of the sentence be suspended notwithstanding any provision of the law to the contrary and that the defendant be placed on probation for such period and upon such terms as the court deems best....’
“(Emphasis added.) The plain language of the statute indicates that a trial court can split a sentence only if the defendant is placed on probation for a definite period following the confinement portion of the split sentence. Indeed, this Court has recognized that ‘[ajpplieation of § 15-18-8 necessitates suspension of that portion of the split sentence that is not actual confinement and placement of the convicted defendant on probation .... ’ Hughes v. State, 518 So.2d 890, 891 (Ala.Crim.App.1987). In addition, ‘in view of the history and text of Amendment 38 [of the Alabama Constitution of 1901, from which a trial court’s power to suspend a sentence stems,] the power to suspend a sentence ... can only be exercised when coupled with an order for probation.’ Holman v. State, 43 Ala.App. 509, 513, 193 So.2d 770, 773 (1966) (emphasis added).
“In this case, the record indicates that Madden’s original sentence was split pursuant to § 15-18-8, but the record does not indicate whether the original sentence included a probationary term to follow the six-month term of confinement. The circuit court stated in its order that it had placed Madden on probation on March 31, 2001, over six months after September 7, 2000, the date Madden claimed he was sentenced. However, the circuit court did not state in its order whether Madden’s original sentence included a probationary term and the March 31, 2001, placement of Madden on probation was merely a formality, or whether the original sentence did not include a probationary term and the March 81, 2001, placement was a belated attempt to correct the improper execution of Madden’s sentence. In addition, the case action summary from Madden’s conviction is not included in the record on appeal; Madden did not file a direct appeal from his conviction so this Court has no record of his original sentence; and in his petition, Madden stated only that he was sentenced to ‘15 years split 6 months.’ (C. 1.)
“If Madden’s original sentence did not include a probationary term to follow the confinement portion of the sentence, then the execution of the sentence was invalid under § 15-18-8; if the original sentence did include a probationary term, then both the sentence and its execution were valid and the circuit court also erred in rescinding Madden’s placement on probation.
“Based on the foregoing, we affirm the circuit court’s denial of Madden’s request to have his conviction set aside. However; we reverse the circuit court’s rescinding of Madden’s 15-year sentence and we remand this case to the circuit court for it to reinstate the 15-year sentence, and then to determine whether the execution of the sentence— i.e., the manner in which the court split the sentence — was valid — whether it included a probationary term to follow the term of confinement. If the court determines that Madden’s original sentence did include a probationary term and that, therefore, the execution of the sentence was proper, the court should reinstate Madden’s placement on probation. If the court determines that Madden’s original sentence did not include a probationary term and that, therefore, the execution of the sentence was invalid under § 15-18-8, the court should reconsider splitting the sentence in compliance with the statute.”

(Some emphasis added.)

In this case, the trial court split the appellant’s sentence. However, it did not impose a period of probation to follow the period of confinement. Therefore, the execution of the appellant’s sentence is not legal. See Madden, supra.

“ ‘Matters concerning unauthorized sentences are jurisdictional,’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994), and, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

Moore v. State, 871 So.2d 106, 108 (Ala.Crim.App.2003).

The fact that the trial court indicated that it will conduct a hearing after the appellant completes boot camp does not make the execution of the appellant’s sentence legal. At this time, this court cannot know whether the trial court will indeed conduct a subsequent hearing or whether it will actually impose a period of probation at that future hearing. To assume at this time that the trial court will impose a proper sentence in the future would be to shirk this court’s responsibility to ensure that a valid sentence is imposed and that the sentence has been legally executed. See Moore, supra.

Moreover, even if the trial court did impose a period of probation at a future hearing, such action would merely amount to “a belated attempt to correct the improper execution of [the appellant’s] sentence.” Madden, 864 So.2d at 398. I can appreciate the trial court’s desire to evaluate the appellant’s conduct during boot camp to determine what would be the appropriate period and conditions of probation in this case. However, § 15 — 18—8(c), Ala.Code 1975, provides:

“Regardless of whether the defendant has begun serving the minimum period of confinement ordered under the provisions of subsection (a), the court shall retain jurisdiction and authority throughout that period to suspend that portion of the minimum sentence that remains and place the defendant on probation, notwithstanding any provision of the law to the contrary and the court may revoke or modify any condition of probation or may change the period of probation.”

(Emphasis added.) Therefore, the trial court could impose a period of probation and still have jurisdiction to review the appellant’s conduct during boot camp to determine whether modification of the period and conditions of probation would be appropriate at a later time. Accordingly, requiring the trial court to impose a period of probation at this time would not deprive the trial court of its discretion to tailor the period and conditions of the appellant’s probation based on his conduct during boot camp.

For these reasons, we should remand this case to the trial court for that court to set aside the split portion of the appellant’s sentence and conduct a new sentencing hearing at which it would order the execution of the appellant’s sentence in a legal manner. Therefore, I must respectfully concur in part and dissent in part.


author: PER CURIAM.

text:
    Terry WEAVER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-1357.
    District Court of Appeal of Florida, First District.
    April 4, 2007.
    Rehearing Denied May 9, 2007.
    Terry Weaver, pro se, Petitioner.
    No appearance for Respondent.
    Prior report: 796 So.2d 1240.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

DAVIS, PADOVANO, and HAWKES, JJ., concur.


text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellant, v. OPEN MRI OF MIAMI-DADE, LTD., a/a/o Christopher St. Fleur, Appellee.
    No. 3D06-1862.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Bruce S. Rogow (Ft.Lauderdale); Beighley & Myrick and Maury L. Udell, for appellant.
    Dean A. Mitchell (Ocala), for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Millennium Diagnostic Imaging Ctr., Inc. v. Security Nat. Ins. Co., 882 So.2d 1027 (Fla. 3d DCA 2004); Clearview Imaging, L.L.C. v. State Farm Mut. Auto. Ins. Co., 932 So.2d 423, 426 n. 3 (Fla. 2d DCA 2006).


text:
    Michael TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4452.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Rehearing Denied May 25, 2007.
    Michael Turner, Madison, pro se.

      No appearance required for appellee.
   PER CURIAM.

Affirmed. See Butts v. State, 898 So.2d 1082 (Fla. 3d DCA 2005).

STONE, GROSS and MAY, JJ., concur.


text:
    RESTAURANT COLLECTION, INC., Appellant, v. CERTAIN UNDERWRITERS AT LLOYDS, Eduardo Ascano, Ehab Albarabi, Nabil Arafat, Usama El-A-Baidy, Esam Hessein, Mohammad Natour, Usama Mohamed, Ehab Mohamed a/k/a Max Morgan., Appellees.
    No. 3D06-1370.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Sperry, Shapiro Kashi, P.A. and Joseph S. Kashi (Plantation), for appellant.
    Clinton D. Flagg, Miami, and Jenelle E. LaChuisa, for appellee.
    Before COPE, C.J., and GREEN and LAGOA, JJ.
   PER CURIAM.

Affirmed. See State Farm Fire & Cas. Co. v. Compupay, Inc., 654 So.2d 944 (Fla. 3d DCA 1995).


text:
    Freddie C. BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1342.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing Denied May 9, 2007.
    Freddie C. Brown, in proper person.
    Bill McCollum, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Orta v. State, 919 So.2d 602 (Fla. 3d DCA 2006)(holding that any error in denying a defendant her or his right to be present at a critical stage or any proceeding is fundamental error, except in resentencing cases where only the “ministerial act” of sentence correction is required); Cook v. State, 481 So.2d 1285 (Fla. 4th DCA 1986)(striking that portion of the sentence that improperly retained jurisdiction and affirming all else).


text:
    Ronald PLAVNICKY, Petitioner, v. Laurie DELUICIA, Respondent.
    Nos. 4D07-466, 4D07-527.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Melody Ridgley Fortunato of Fortunato & Associates, P.A., Fort Lauderdale, for petitioner.
    Joyce A. Julian of Joyce A. Julian, P.A., Fort Lauderdale, for respondent.
   PER CURIAM.

Ronald Plavnicky petitioned this court for a writ of prohibition to prevent the trial judge from presiding in the post-dissolution matters pending below. Plavnicky also petitioned this court for a writ of mandamus to compel the trial judge to rule on a pending motion for disqualification. On February 6, 2007, this court issued the former wife orders to show cause why the petitions should not be granted. Issuing the show cause order on the petition for writ of prohibition automatically stayed the proceedings in the trial court pursuant to Florida Rule of Appellate Procedure 9.100(h). However, the trial judge subsequently ruled on the motion for disqualification and entered some additional orders regarding contempt proceedings. Plavnicky then filed a second petition for writ of prohibition.

The trial judge did not have jurisdiction while the stay was in effect, and as a result, these orders are a nullity. See Leslie v. Leslie, 840 So.2d 1097 (Fla. 4th DCA 2003). Accordingly, the orders entered after the February 6, 2007 show cause order are vacated without prejudice for the judge to reissue the orders. The three petitions are otherwise denied. The record does not show that the successor judge is in fact “not fair and impartial.” Fla. R. Jud. Admin. 2.330(g).

WARNER, POLEN and MAY, JJ., concur.


text:
    Tracy T. BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2799.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, 744 So.2d 1103 (Fla. 3d DCA 1999) (“[E]ven if ... the [prosecutor’s] comment [in final argument] was ... wrong, it was, standing alone, and in the context of the entire case, not enough to vitiate the entire trial and require a new one. State v. Murray, 443 So.2d 955 (Fla.1984); Hall v. State, 444 So.2d 1019 (Fla. 3d DCA 1984). While harmful prosecutorial excesses undoubtedly require reversal, Ruiz v. State, 743 So.2d 1 (Fla.1999), and cases cited; Gomez v. State, 751 So.2d 630 ... (Fla. 3d DCA ... 1999), and cases cited, it is also true, as was said in Henry v. State, 290 So.2d 73, 75 (Fla. 2d DCA 1974), that: ‘otherwise proper trials are not to be reversed merely because an ... analysis of a single statement reveals a defect in rhetoric. When, as in this case, it clearly appears that the defendant’s substantial rights were not affected, it is our duty to affirm. We do.’ ”), review denied, 753 So.2d 567 (Fla.2000).


author: ROTHENBERG, Judge.

text:
    MECCA MULTIMEDIA, INC., d/b/a M3 Studios, Appellant, v. Andrew KURZBARD, Appellee.
    No. 3D06-2255.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.

      Kubicki Draper and Maria Kayanan, Miami, for appellant.
    Homer Bonner and Douglas F. Eaton, Miami, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Mecca Multimedia, Inc., d/b/a M3 Studios (“Mecca”), appeals a non-final order of the trial court denying its motion to quash service of process and to vacate default, based upon ineffective service of process. Because the complaint fails to allege the jurisdictional basis for substituted service, we find that substituted service of process on Mecca was ineffective, and therefore, reverse the order of the trial court.

The plaintiff, Andrew Kurzbard (“Kurz-bard”), filed a lawsuit against Mecca, alleging that he suffered bodily injury as a result of a slip and fall accident, which occurred on business premises owned by Mecca. The complaint alleges that, Mecca is a Florida corporation, which owns, controls, and maintains the premises wherein the accident allegedly took place, and which is located at or near 4000 Northwest 36th Avenue in Miami-Dade County, Florida.

Kurzbard first attempted to serve Mecca pursuant to section 48.081(3)(a), Florida Statutes (2005), by serving Raul Rodriguez (“Rodriguez”), the registered agent, president, and sole officer of Mecca, -at the address listed as Mecca’s principal place of business, mailing address, and as the registered agent’s address in Mecca’s 2004 and 2005 Annual Reports filed with the Florida Secretary of State. This address, however, is not Mecca’s principal place of business and is not Rodriguez’s address. Instead, the address listed is the residence of Rodriguez’s parents, who refused to accept service of process and refused to give any information regarding Rodriguez.

Subsequently, on two separate occasions, Kurzbard attempted to serve an officer or employee of Mecca at its business premises, but no one working for Mecca was present to accept service. Consequently, having had difficulty in effecting service on Mecca pursuant to section 48.081, Florida Statutes, Kurzbard availed himself of one of Florida’s long-arm statutes and served Mecca by substituted service on Florida’s Secretary of State. Based on this substituted service, Kurz-bard filed a motion for entry of default, which the trial court granted.

After obtaining a default, Kurzbard noticed the case for trial as to damages and sent Mecca a certified copy of the notice for trial along with a copy of the default at Mecca’s mailing address. Upon receiving the notice of trial and the default, Mecca filed a limited appearance and filed a motion for continuance preserving any jurisdictional challenge to the service of process. Subsequently, Mecca filed a motion to quash the service of process and to vacate default, alleging that as the service of process was ineffective, the trial court lacked personal jurisdiction over Mecca and that consequently, the default was void. The trial court denied Mecca’s motion, finding that the substituted service of process on the Secretary of State was appropriate to effect service on Mecca. We disagree.

The determination of whether the trial court properly ruled on a motion to quash service of process for lack of personal jurisdiction is a question of law, which we review de novo. Alvarado v. Cisneros, 919 So.2d 585, 587 (Fla. 3d DCA 2006); Labbee v. Harrington, 913 So.2d 679, 681 (Fla. 3d DCA 2005).

Section 48.081, Florida Statutes, governs service of process on a corporation and must be strictly complied with. S.T.R. Indus., Inc. v. Hidalgo Corp., 832 So.2d 262, 263 (Fla. 3d DCA 2002); see also York Commc’ns, Inc. v. Furst Group, Inc., 724 So.2d 678, 679 (Fla. 4th DCA 1999)(“Stat-utes governing service of process should be strictly construed, and valid service on a domestic corporation may only be effected by complying with such statutes.”). “Absent strict compliance, the court lacks personal jurisdiction over the defendant corporation.” York, 724 So.2d at 679.

In this instance, Kurzbard attempted to strictly comply with section 48.081, Florida Statutes, but was unable to do so as a result of Mecca’s apparent failure to comply with section 48.091, Florida Statutes, and as a result of Rodriguez’s parents’ failure to provide any information regarding Rodriguez. Consequently, having been unable to comply with the requirements of section 48.081, Kurzbard served Mecca, a domestic corporation, through substituted service on Florida’s Secretary of State pursuant to section 48.181, Florida Statutes (2005), one of Florida’s long-arm statutes.

The Florida courts have emphasized, that in order to support substituted service of process on a defendant through the Secretary of State, the complaint must allege the jurisdictional requirements prescribed by the applicable long-arm statute. See Labbee, 913 So.2d at 682 (“To determine whether long-arm jurisdiction is appropriate for substituted service, the complaint must either plead a basis for jurisdiction pursuant to the language of section 48.181 or allege sufficient jurisdictional facts to satisfy the statute.”); see also Weiler v. Weiler, 861 So.2d 472, 476 (Fla. 5th DCA 2003)(“In determining if personal jurisdiction is proper under the long-arm statute, the trial court must first determine whether the complaint alleges sufficient jurisdictional facts to bring it under the statute.”); Alhussain v. Sylvia, 712 So.2d 806, 806 (Fla. 4th DCA 1998)(“[I]n order to support substituted service of process on a defendant, the complaint must allege the jurisdictional requirements prescribed by statute.”). The burden of pleading facts that support, as a matter of law, the applicability of substituted service falls on the party seeking to invoke the provisions of the long-arm statute. Labbee, 913 So.2d at 682. Furthermore, “long-arm statutes are strictly construed and require the plaintiffs to clearly bring themselves within the ambit of the statutes.” Id. at 682-83.

In this instance, since Kurzbard served Mecca through substituted service on the Secretary of State pursuant to section 48.181, we must determine whether Kurz-bard made the necessary jurisdictional allegations in his complaint to clearly bring himself within the ambit of the statute. Section 48.181, Florida Statutes, permits Florida’s Secretary of State to accept service on behalf of a nonresident defendant or a resident defendant who subsequently becomes a non-resident or who conceals his or her whereabouts and who engages in or carries on a business venture in the state. § 48.181, Fla. Stat. (2005); Labbee, 913 So.2d at 682. Here, Kurzbard’s complaint alleges that Mecca is a Florida corporation and that the accident occurred in the business premises owned by Mecca and located in Miami, Florida. Accepting the allegations in the complaint as true, as we are required to do, Labbee, 913 So.2d at 682, Mecca is a Florida corporation, and thus, the portion of the statute accepting service on behalf a non-resident defendant is inapplicable to this case. Consequently, the only way for Kurzbard to avail himself of section 48.181 was to properly plead that Mecca, through its officers or agents, was concealing its whereabouts. The complaint, however, did not allege, nor was it amended to allege, any concealment on the part of Mecca. Therefore, as Kurzbard failed to plead the required statutory prerequisites to invoke the long-arm statute, he could not perfect substituted service on Mecca. See Alvarado, 919 So.2d at 589; Alhussain, 712 So.2d at 807.

Accordingly, we find that because Kurz-bard failed to sustain his burden of pleading sufficient facts to support the applicability of substituted service, the trial court lacked personal jurisdiction over Mecca, and the default entered against it is void. Consequently, we conclude that Mecca’s motion to quash service of process and to vacate the default should have been granted.

REVERSED and REMANDED.

      . Section 48.08 l(3)(a) specifies that:
      [PJrocess may be served on the agent designated by the corporation under s. 48.091. However, if service cannot be made on a registered agent because of failure to comply with s. 48.091, service of process shall be permitted on any employee at the corporation’s principal place of business or on any employee of the registered agent.
      § 48.081(3)(a), Fla. Stat. (2005). Section 48.091 requires, in pertinent part, that a domestic corporation or a foreign corporation qualified to do business in Florida (1) designate a registered agent and registered office; (2) keep the registered, office open from 10:00 a.m. to 12 noon each day, except Saturdays, Sundays, and legal holidays; and (3) keep one or more registered agents on whom process may be served during these designated hours. § 48.091, Fla. Stat. (2005).

      . Section 48.181 states, in relevant part:
      (1) The acceptance by any person or persons, individually or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his or her whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state ... constitutes an appointment by the persons and foreign corporations of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served.
      § 48.181(1), Fla. Stat. (2005).


author: STONE, J.

text:
    Antonio FIDDEMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1394.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Fiddemon’s conviction and sentence for robbery with a firearm. The sole issue is whether the trial court abused its discretion in denying a motion for mistrial.

Fiddemon was identified by the victim as the person who had robbed her at gunpoint. The only other witness was the arresting officer. During the officer’s testimony, the state asked what had brought Fiddemon to the officer’s attention. He answered, “One of our robbery Detective [sic], Detective Kerr, had been doing an investigation on a couple [of] robberies that occurred on the previous day, on this particular day.” The defense promptly asked to approach the bench and moved for a mistrial.

The state responded that the officer had not even completed his answer to the prosecutor’s question, had not mentioned Fid-demon’s name, and did not link the investigated robberies to Fiddemon. Although there was no formal objection to the question prior to counsel’s seeking the mistrial, the trial court recognized the motion as such and sustained it in granting the curative instruction. Recognizing that the question was improper, the court instructed the jury, “Folks, I am going to sustained [sic] the Defense counsel’s objection to the witness’ prior testimony. And I am striking it from the record, and ask you to disregard it.”

At this point, the jury was excused, the trial court denied the motion for mistrial, and the officer was counseled that he could not mention any prior robberies with regard to Fiddemon while testifying.

The victim remembered Fiddemon distinctly and confidently identified him in the courtroom as she had in a photo line-up the day after the robbery.

A motion for mistrial is addressed to the sound discretion of the trial judge. Salvatore v. State, 366 So.2d 745, 750 (Fla.1978). “[A] mistrial is appropriate only when the error committed was so prejudicial as to vitiate the entire trial.” Duest v. State, 462 So.2d 446, 448 (Fla.1985). When an error does no substantial harm and fails to materially prejudice the defendant, the trial court properly denies a motion for mistrial. Johnsen v. State, 332 So.2d 69, 71 (Fla.1976).

The trial court concluded that the police officer’s general reference to another officer’s robbery investigation, without naming Fiddemon as a target of the investigation, did not rise to the level of prejudicial error requiring a mistrial. We cannot say this constituted an abuse of discretion. Defense counsel interrupted the officer’s testimony, heading off further objectionable statements. The statement was somewhat indefinite and was not expressly linked to Fiddemon as a suspect. We note that the defense raised no objection to the sufficiency of the curative instruction.

Therefore, the judgment and sentence are affirmed.

FARMER and MAY, JJ., concur.


text:
    C.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and Guardian Ad Litem Program, Appellees.
    No. 3D06-3035.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.

      Richard F. Joyce, Orlando, for appellant.
    Bernadette Noe, Tavernier; Hillary S. Kambour, for appellees.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The judgment below finding a two-year-old child dependent as to his father is reversed because although there is evidence that the appellant was a user of cocaine, including in the presence of the child, there was no showing, as required, that this conduct caused any harm, to the child or that he was either in existing or imminent danger of neglect. See J.B.M. v. Dep’t of Children & Families, 870 So.2d 946 (Fla. 1st DCA 2004).

Reversed and remanded.

      . To the contrary, the only actual evidence as to the father’s parenting skills was the testimony of the child’s mother:
      [Defense counsel]: And you mentioned to me that [C.M.] was always a good father to your child?
      [Mother]: He, he is a great father to my son.
      [Defense counsel]: And he provided you with clothes and—
      [Mother]: He brought Pampers. He brought me clothes and shoes. He would never givé me money.
      [Defense counsel]: And theré was never any domestic violence or anything between you.
      [Mother]: No.
      [Defense counsel]: And he never abused — I mean he never hit the child?
      [Mother]: No.
      [Defense counsel]: He is not a violent type of person?
      [Mother]: No.

      [Mother]: ... Then when he found out [about the child], when he was in jail.
      Then when he got out, my baby was ten months old and he came around. He would come and get him and take him to the park, and buy things, and stuff like that.
      [Judge]: And then after that did he go back into jail?
      [Mother]: I think he went — I think I remember once’ he went back in jail, but it wasn’t for a long time. It wasn't for a long time.


text:
    Donald O. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1015.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Following a traffic stop, Donald 0. Carter was charged with possession of cocaine and driving without a license. A jury found Carter guilty as charged. Thereafter, during his sentencing hearing, the judge held Carter in direct criminal contempt as a consequence of his failure to appear for an earlier docket call, sentencing him to time served. In this appeal, Carter challenges the sufficiency of the evidence supporting his conviction for possession of cocaine and the contempt. We affirm the possession of cocaine conviction without further comment. We find merit, however, in Carter’s claim concerning the contempt adjudication.

“Criminal contempt is a crime” and guilt must be proven beyond a reasonable doubt. Forbes v. State, 933 So.2d 706, 712 (Fla. 4th DCA 2006). To establish criminal contempt, the evidence must establish a “willful act or omission calculated to embarrass or hinder the court or obstruct the administration of justice.” Id. “There must be proof that the accused intended to hinder or obstruct the administration of justice.” Id. Such intent can be inferred from the accused’s actions. See id. We have reviewed the record in this ease and find the evidence was insufficient to demonstrate Carter willfully failed to appear before the court. Carter’s sworn testimony that his court-appointed attorney told him he did not need to attend the docket call was unrebutted in the record.

Affirmed in Part and Reversed in Part.

STEVENSON, C.J., KLEIN and SHAHOOD, JJ, concur.