author: COBB, Judge.

text:
    Walter Tyrone WARE v. STATE of Alabama.
    CR-04-1556.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.
    Rehearing Denied April 14, 2006.
    Certiorari Denied Aug. 11, 2006 Alabama Supreme Court 1050993.

      Domingo Soto, Mobile, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

Walter Tyrone Ware was indicted on August 20, 2004, by a Mobile County Grand Jury on six counts of owning, possessing, keeping, and/or training a dog for fighting purposes in violation of § 3-1-29, Ala.Code 1975, and one count of possessing a controlled substance in violation of § 13A-12-212, Ala.Code 1975. A suppression hearing was held on January 13, 2005, at which time the trial court denied the defendant’s motion to suppress the evidence relating to both the dog-fighting charge and the possession-of-a-eontrolled-substance charge. On March 18, 2005, a jury found Ware guilty as charged in the indictment. The trial court sentenced Ware to serve 20 years’ imprisonment on each of the convictions of the dog-fighting charges, all six sentences to be served concurrently, and a 20 years’ imprisonment for the conviction of the possession-of-a-controlled-substance charge. Ware was sentenced in accordance with the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. Ware was also ordered to pay restitution to the City of Mobile Animal Shelter in the amount of $7,808.71, $100 in each case to the victims compensation fund in accordance with § 15-23-17(b), Ala.Code 1975, $100 to the Forensic Trust Fund pursuant to § 36-18-7, Ala. Code 1975, and $1000 pursuant to the Demand Reduction Assessment Act, § 13A-12-281, Ala.Code 1975.

On December 30, 2003, the Mobile Police Department received an anonymous complaint regarding alleged dog fighting at the Ware residence. Officers James White and Steve Chandler of the Mobile Police Department responded to the Ware residence. Upon arriving at the residence, the officers observed several men standing in the yard near two sport-utility vehicles (“SUVs”.) The officers saw a bleeding dog lying on the ground next to one of the SUVs as well as a puppy in a carrier in one of the SUVs. A privacy fence surrounded the rear part of property, but the gate to the privacy fence was open. The officers were able to observe through the open gate that other dogs were in the backyard both in cages and on chains. The officers then called the animal-control unit to the scene. David Shaeffer with Mobile Animal Control arrived at Ware’s residence and inspected the dogs in the backyard. Shaeffer found 22 pit-bull dogs in the backyard either in cages or tied with heavy chains. Most of the dogs were very thin or emaciated, and at least two dogs had fresh cuts or puncture wounds. After observing the condition of the dogs, Shaeffer cited Mrs. Ware for cruelty to animals, failure to have rabies tags, and lack of a city license.

Later that afternoon, Elizabeth Flott, a humane officer with the Mobile County Society for the Prevention of Cruelty to Animals (“the SPCA”), received a telephone call from the Mobile County District Attorney’s office requesting that she contact the police regarding an incident at the Ware residence. Flott and Mobile Animal Control Officer Robert Sims, along with Officers White and Chandler, returned to the Ware residence at approximately 4:30 p.m. Flott knocked on the door of the Ware residence and informed Mrs. Ware that she had been asked to inspect the dogs. According to Flott, Mrs. Ware directed her to Mr. Ware, who was standing in the yard with four other men. Mr. Ware granted Flott permission to inspect the animals. Flott found approximately 20 dogs, some were chained in the backyard; others were in elevated cages. She observed that all of the dogs were underweight and that they all showed signs of scars or scabs. Each dog was chained, and Flott observed no broken chains.

Flott, Sims, and the police officers inspected a shed in the Wares’ yard. The shed was a three-sided wood structure with a tarpaulin at the open end. An exercise wheel and a treadmill were found in the shed. A bottle containing .69 grams of Stanozolol, an anabolic steroid and controlled substance, and a syringe were also found on a hay bale next to the treadmill. A rope was also tied to a limb on a tree in the Wares’ yard, which is indicative of a “flirt pole.” Likewise a golf club with duct tape around the head of the iron, which had been chewed, was found on the premises. A pair of scales was hanging in the open carport.

After observing the condition of the dogs as well as what appeared to be dog-fighting paraphernalia, Flott determined that sufficient grounds existed to arrest Ware. The dogs were seized and transported to the animal control shelter. After they were relocated to the shelter, the dogs continually tried to bite through the chain-link fence to fight one another.

The next day John Symes, D.V.M., systematically examined each dog, checking it for wounds and injuries, and evaluating the dog’s physical condition. Dr. Symes developed a scale between one and five— one being severely underweight and five being normal. No dog received a rating of five. At least 13 of the dogs received a “one” or “two” rating. The dogs also showed signs of serious injuries. Only 5 of the 23 dogs showed no sign of scarring. One dog was missing at least three inches of its tongue and one of its canine teeth. Because it was missing so much of its tongue, this dog was unable to eat or drink and thus had to be euthanized. Another dog had puncture wounds to the side of its mouth and other wounds that had been sustained within the previous 30 days. One dog had puncture wounds on the face near the eye, on top of the head, tears in the ear, and bite wounds on the extremities. Yet another dog had broken canine teeth and its muzzle was swollen to twice its normal size because of multiple punctures. Most of the other dogs had wounds and scars indicative of similar injuries. Dr. Symes, a veterinarian with 26 years’ experience, stated the following regarding the treatment of these dogs:

“Q. [Prosecutor]: Okay. And do you clearly remember what took place and what you did on December 31st?
“A. [Dr. Symes]: Very much so.
“Q. How do you remember that so clearly, Doctor?
“A. It was one of the most dramatic [sic] things I have ever seen in my career.
“Q. And what was so traumatic?
“A. I’ve never examined 23 dogs in that kind of condition before all at one time. And the degrees of the injuries, the bite wounds and the poor condition of the pets, and topped off by the one with the tongue missing and the dogs standing there with one — you know, one leg or even two legs trying to be held up at one time. The dogs were severely injured. It’s something that leaves an indelible mark on your head.”

(R. 492.)

Because of the dogs were so animal-aggressive and posed a danger to the community, the court ordered that they be euthanized.

I.

Ware first argues that insufficient evidence existed to substantiate the convictions regarding dog fighting and possession of a controlled substance. “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998) (quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985)). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997) (quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992)). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala. Crim.App.1998) (quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990)). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040,1042 (Ala.1978).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” Cumbo v. State, 368 So.2d 871, 874 (Ala. Crim.App.1978).

A.

Ware argues that insufficient evidence existed to convict him of dog fighting under § 3-1-29, Ala.Code 1975, because, he says, there was no evidence indicating that Mr. Ware had attended a dog fight or that he had hosted dog fights nor could the State point to when and where the dogs fought. Such evidence, however, is not required, as evidenced by the plain language of the statute:

“(a) It shall be a Class C felony for any person:
“(1) To own, possess, keep or train any dog with the intent that such dog shall be engaged in an exhibition of fighting with another dog;
“(2) For amusement or gain, to cause any dog to fight with another dog, or cause any dogs to injure each other;
“(3) To permit any act in violation of subdivisions (1) and (2) of this subsection.”

§ 3-l-29(a), Ala.Code 1975.

The evidence presented clearly permitted the jury to reasonably exclude every reasonable hypothesis except that of guilt. Cumbo v. State, supra. Twenty-three pit bulls were found chained or caged on Ware’s property. The vast majority of the dogs had either fresh wounds or scars indicative of bites from another dog. One dog had tears in its ears, and another had to be euthanized because its tongue had been torn or bitten off. The animal shelter had to put plywood over the chain-link fence between the dog pens in the shelter because the pit bulls were trying to bite through the chain-link fence to fight with the dog in the other pen. A treadmill and exercise wheel were found on the property, and two witnesses testified they had only seen such equipment in the possession of others engaged in dog fighting. A pair of scales, similar to the ones found in a supermarket, were also located on the premises. Testimony showed that these scales were similar to scales used to weigh dogs that were being trained to fight. Likewise, a rope found tied in a tree suggested that it had been used as a “flirt pole.” Flott testified that the rope was located too close to the trunk of the tree to be used as a child’s swing. Also, a vial of Stanozolol, an anabolic steroid, was found next to the treadmill. Stanozolol has the effect of making animals more aggressive.

In Jones v. State, 473 So.2d 1197 (Ala. Crim.App.1985), another case involving allegations of dog fighting, this Court held that evidence showing that the dogs were dehydrated and undernourished, that the dogs had scars primarily on their face, that the dogs escaped from their pens at the animal shelter to fight each other, and that the dogs tore up their pens requiring the pens to be reinforced was relevant to the issue of the defendant’s intent to engage the dogs in fights. 473 So.2d at 1201. Given the evidence in this matter, the jury here similarly could have reasonably excluded every reasonably hypothesis except that Ware was engaged in dog fighting. Therefore, Ware is not entitled to any relief.

Ware also asserts that the evidence presented at trial did not support multiple convictions based upon § 3-1-29, Ala.Code 1975. He argues that the convictions were based on speculation that there had been more than one dog fight. Ware’s assertion and reasoning is incorrect. Section 3-1-29(a)(1) states: “It shall be a Class C felony for any person... [t]o own, possess, keep or train any dog with the intent that such dog shall be engaged in an exhibition of fighting with another dog.” Each count enumerated in the indictment described a specific pit-bull dog. The evidence substantiated that Ware owned multiple pit bulls for the purpose of fighting; therefore, he is not entitled to any relief.

B.

Likewise, Ware argues that insufficient evidence existed to convict him of possession of a controlled substance pursuant to § 13A-12-212, Ala.Code 1975, based on the anabolic steroid found in the shed because, he says, the conviction relied on constructive possession.

In a prosecution for possession of a controlled substance, the State is not required to prove that the defendant had actual physical control of the controlled substance; possession may be either actual or constructive. McGruder v. State, 560 So.2d 1137, 1139 (Ala.Crim.App.1989). “ ‘An inference of constructive possession arises when the controlled substance is found on premises owned or controlled by the accused.’ ” McGruder, 560 So.2d at 1139 (quoting Donahoo v. State, 505 So.2d 1067, 1070 (Ala.Crim.App.1986)).

Constructive possession cannot be the sole basis for a conviction of a controlled substance. Temple v. State, 366 So.2d 740, 741 (Ala.Crim.App.1978). When the State relies on constructive possession, the prosecution must also prove that the defendant had knowledge of the presence of the illegal drugs. McGruder v. State, 560 So.2d at 1139-40. Knowledge, however, may be established by circumstantial evidence. 560 So.2d at 1140 (quoting Temple v. State, 366 So.2d at 741). “ ‘[T]he kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case.’ ” 560 So.2d at 1140 (quoting Temple v. State, 366 So.2d at 743). “ Where [controlled substances] are found on premises of which the defendant was in nonexclusive possession, the fact that they were found among or near his personal belongings may be a circumstance which is sufficient to link him with the possession of those [controlled substances].”’ 560 So.2d at 1140 (quoting Gary v. State, 473 So.2d 604, 605 (Ala.Crim.App.1985)).

It is undisputed that Ware owned the equipment associated with dog fighting that was located in the shed on his property. While the premises appear to be owned by Ware and his wife, Ware was the only individual who exercised control over the shed. Mrs. Ware testified that she did not go into the backyard. Flott testified to the following conversation she had with Ware regarding the equipment found in the shed:

“Q. [Prosecutor]: ... Okay. And, Ms. Flott, when you were out there in that shed and you saw each and every — or found this equipment
“A. [Flott]: Correct.
“Q. —[Wjhere was Walter Ware?
“A. Mr. Ware came up while I was out there. And he was beginning to get a little irritated with me photographing the equipment. And he said: You mean nobody can condition their dogs? And I said: ‘Condition them for what?’
“Q. Okay. Did you start questioning Mr. Ware—
“A. No.
“Q. —at this point in time?
“A. He asked me if you — couldn’t you condition your dogs for that. And I said: ‘Condition them for?’ And he ...
“Q. What did Mr. Ware say?
“A. He couldn’t—
“A. I said: ‘Condition them for?’ And he could not answer me.”

(R. 195-96.) The vial containing the steroid was located on a bale of hay sitting next to the treadmill, property undisput-ably owned by Ware. Thus, Ware had substantial control over the location where the controlled substance was found, and the controlled substance was in physical proximity to Ware’s personal property. Therefore, sufficient evidence existed for this matter to be submitted to the jury for its determination. See, e.g., McGruder v. State, 560 So.2d 1137 (Ala.Crim.App.1989) (holding that defendant was in constructive possession of crack cocaine found in bus boy’s jacket from a country club, which was located in a closet in a bedroom that contained certificates with the defendant’s name, mail addressed to the defendant, pictures of the defendant, and a name tag from the same country club bearing the defendant’s name). Therefore, Ware is not entitled to any relief on this claim.

Ware also asserts that it was error to charge him with possession of a controlled substance when the usage of the substance was limited to animals. However, Ware raises this issue for the first time on appeal. “ ‘An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.’ ” Dickey v. State, 901 So.2d 750, 756 (Ala.Crim.App. 2004), quoting Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992). Because it is raised for the first time on appeal, this issue is not properly before this court.

II.

Ware also contends that the trial court erred in denying his motion to suppress evidence gathered from his property on the date of the arrest. He alleges that the warrantless search was unreasonable because, he contends, neither he nor his wife consented to the search.

The record contains no motion to suppress. From the record it appears that Mrs. Ware moved the court to suppress evidence regarding the dogs and other evidence found on the Wares’ premises; Mr. Ware joined the motion. It appears from the record that the Wares’ motion was based on the argument that they did not consent to the search. A hearing on the motion to suppress was held on January 13, 2005. Officer James White, Elizabeth Flott, Robert Sims, and Mrs. Ware testified.

Officer White testified that he and Officer Steve Chandler responded to a call regarding possible injured animals and dog fighting at the Ware residence. Officer White saw one or two animals in the front of the privacy fence in cages and saw through an open gate in the fence other dogs either in cages or on chains in the backyard. Officer White testified that he spoke with Mrs. Ware, who stated that the dogs were her husband’s and that she knew nothing about them. White also testified that he and Chandler left the premises and telephoned the animal-control unit. They returned to the premises with Animal Control Officer David Shaeffer. White testified that no one searched the premises at that time, but that the gate was still open and Shaeffer was able to view the dogs in the backyard. White then called Flott, and he met Flott and Sims at a nearby church. When White, Flott, and Sims returned to the Ware residence, several men were in the yard. White recalled Mrs. Ware’s telling Flott that the dogs belonged to Ware and that he was outside with the other men. White, Flott, Sims, and Ware entered the backyard and observed 23 dogs in the backyard, many of the dogs with old and new injuries and blood on their bodies. Although he could not remember the exact conversation, White recalled Flott asking Ware if she could look around, look at the condition of the dogs, and take some pictures of the dogs, to which Ware agreed. White also recalled Ware’s giving Flott permission to look anywhere on the premises she desired.

Flott testified that she, Sims, and several police officers went to the Ware residence on December 30, 2003. She knocked on the door, and Mrs. Ware came to the door. Flott identified herself and explained that she had been requested to come to the Ware residence to look at the dogs. Mrs. Ware told Flott that the dogs belonged to Mr. Ware and that Mr. Ware was in the yard. Flott saw Ware leaving the backyard through the gate to the privacy fence, which was open at that time. Flott requested permission from Ware to inspect the dogs, which he granted. Flott found Ware to be “totally cooperative.” (Supp. R. 39.) Flott noticed the shed and could see that something was in it. She asked Ware for permission to look inside the shed, which he granted. White and Sims were also present when Ware gave Flott permission to look inside the shed. Flott entered the open shed and found an exercise wheel, a treadmill, and a bottle containing anabolic steroids, all of which she photographed. Flott asked Ware why he had the equipment, and Ware responded, “You mean, a man can’t have his equipment?” (Supp. R. 52.) She again asked Ware why he had the equipment, to which he replied that he was conditioning the dogs.

Robert Sims, an animal-control officer for the City of Mobile, testified that he went to the Ware residence with Flott and police officers on December 30, 2003. Sims stated that Flott knocked on the door of the house and Mrs. Ware came to the door, that Flott identified herself and stated she was there to inspect the dogs, and that Mrs. Ware replied that the dogs belonged to her husband and that he was in the backyard where they could speak to him. Ware was standing next to the privacy fence with four other men. Sims recalled Flott asking Ware’s permission to look at the dogs, which Ware gave. Sims and Flott “looked at the dogs, one at a time, ... really checking them out.” (Supp. R. 60.) Sims also recalled Ware giving them permission to look inside the shed.

Tanisa Ware testified that she remembered the police officers first arriving at her home around 12:30 or 1:00 p.m. Mrs. Ware recalled the officer’s knocking on her door and saying there had a been a complaint about alleged dog fighting. She thought the complaint had been made because the dogs had been barking excessively that morning. Mrs. Ware testified that the officer reappeared with Flott after Mr. Ware came home from work. Mrs. Ware stated that the officers, Sims, and Flott were already in the backyard at that time and that her husband was inside the residence. She testified that they did not ask her permission to go into the yard. Mrs. Ware recalled telling her husband that the officers, Sims, and Flott were in the backyard and he instructed her to tell them not to go in the yard. However, by that time they were already taking pictures in the backyard. Mrs. Ware testified that the officers, Sims, and Flott were already inside the privacy fence by the time Mr. Ware left the residence.

After hearing the foregoing testimony and oral arguments of counsel, the trial court denied the defendants’ motion to suppress.

“ ‘This court has long held that war-rantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement.’ Rokitski v. State, 715 So.2d 859, 861 (Ala.Crim.App.1997). ‘One of the exceptions to the rule that a war-rantless search is per se unreasonable is a search conducted with the consent of the owner.’ Foldi v. State, 861 So.2d 414, 422 (Ala.Crim.App.2002). ‘Consent to a search must be knowingly, intelligently, and freely given.’ Ex parte Wilson, 571 So.2d 1251, 1255 (Ala.1990). “ ‘[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.’ ” Miller v. State, 602 So.2d 488, 491 (Ala.Crim.App. 1992), quoting Florida v. Royer, 460 U.S. 491, 497 (1983).”

Washington v. State, 922 So.2d 145, 164 (Ala.Crim.App.2005).

While the trial court did not state a reason for denying Ware’s motion to suppress, we can infer from the record that the Court found that either Ware or his wife consented to the search. Officer James White, Elizabeth Flott, and Robert Sims all testified that the Wares consented to the search. However, Mrs. Ware testified that neither she nor her husband consented to a search.

This Court recently reiterated the standard of review regarding a court’s ruling on a motion to suppress:

“In reviewing a trial court’s ruling on a motion to suppress, this Court reviews the trial court’s findings of fact under an abuse-of-discretion standard of review. When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App. 1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘ “all the reasonable inferences and credibility choices supportive of the decision of the trial court.” ’ Kennedy v. State, 640 So.2d 22, 26 (Ala. Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflicts] should not be reversed on appeal.’ Sheely v. State, 629 So.2d 23, 29 (Ala. Crim.App.1993).”

State v. Hargett, 935 So.2d 1200, 1203 (Ala. Crim.App.2005). The determination of the credibility and veracity of the witnesses and evidence is the responsibility of the trial court, not the appellate court. We find no abuse of discretion on the part of the trial court in denying Ware’s motion to suppress, and Ware is not entitled to any relief.

III.

Ware next argues that the trial court erroneously refused to permit photographs of the Ware residence and premises to be admitted into evidence. During the presentation of Mrs. Ware’s defense, her attorney attempted to introduce into evidence 20 photographs of the premises of the Ware residence taken on the eve of trial and over 14 months after the arrests. Upon the State’s objection to the photographs, the trial court reserved judgment on their admissibility and allowed Mrs. Ware to identify the photographs. The trial court then sustained the State’s objection because Mrs. Ware testified that she never entered the backyard. Ware now alleges on appeal that the trial court mis-characterized Mrs. Ware’s testimony and should have admitted the photographs into evidence so that Ware could properly rebut the State’s case.

The State asserts that Ware did not properly preserve this issue for appeal because Ware did not object to the denial of entry of the photographs into evidence. It is well established that “[rjeview on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989).

On the first day of trial, the following communications took place between the trial court and the attorneys of record:

“[MR. WARE’S COUNSEL]: Yes, sir. Talk to the judge. Yes, sir. We’ll attempt to do that.
“The only other housekeeping issue that I think the court ought to be concerned with is objections. I mean, do you want to hear from all of us, or will you say whomever objects goes for everybody else? No use in all five of us popping up one at the time. And we’re not trying to sandbag you. It’s just— we can do it that way, or we can do it whoever objects it goes for all Defendants.
“THE COURT: Well, if one of you objects and I can rule without having to hear what — you know, if you haven’t stated a ground and it’s pretty clear that I can rule, I’ll rule. If you object, and I have some question, I may look to you. And if one of you have — if one of you have an additional ground than the one who stated the objection, I will be glad to listen to that too. I mean—
“[MR. WARE’S COUNSEL]: I don’t think that’s going to be a problem, Judge. I think the problem is going to come in where if one objects he’s objecting for everybody, as opposed to everybody’s got to stand up and say I object also.
“THE COURT: I agree. I think that ought to be stated for the record. When there is an objection for one, there is an objection for all.”

(R. 4-6.)

This issue presents a close question, given the foregoing ruling by the court. We find that the issue is preserved for appeal, although the better practice would have been for Mr. Ware to object to the denial of the admission of the photographs in order to ensure that the issue was preserved as to him on appeal.

We next determine whether of the trial court erred when it denied admission of the photographs into evidence. “The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000). The trial judge deemed the photographs inadmissible because Mrs. Ware could not authenticate the photographs. Mrs. Ware testified she did not go past the gate into her backyard. This Court thus finds no abuse of discretion in the trial court’s ruling. Moreover, “ ‘ “[a] trial court will not be placed in error for assigning the wrong reason for a proper ruling, if that ruling is correct for any reason.” ’ ” Irvin v. State, 940 So.2d 331, 345 (Ala.Crim.App.2005)(quoting Peraita v. State, 897 So.2d 1161, 1183 (Ala. Crim.App.2003), aff'd, 897 So.2d 1227 (Ala. 2004), quoting in turn Nicks v. State, 521 So.2d 1018, 1030-31 (Ala.Crim.App.1987), affd, 521 So.2d 1035 (Ala.1988)). Even had Mrs. Ware been able to authenticate the photographs, photographs of the Ware premises taken over 14 months after the date of arrest would have been irrelevant. Rule 402, Ala.R.Evid. Ware is thus not entitled to any relief on this claim.

rv.

Ware also argues that the trial court erroneously permitted the expert testimony of Elizabeth Flott and Sandy Christiansen. However, Ware failed to preserve this issue for appeal. As stated previously, “[r]eview on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d at 716.

The State offered Sandy Chris-tiansen as an expert in dog fighting and animal cruelty, and Ware failed to object to Christiansen’s being deemed an expert. Thus, Ware failed to preserve this issue for appeal.

Even if Ware had preserved this issue for review, we would find no error. Chris-tiansen’s testimony was not based on a scientific theory, but instead on 13 years of experience as director of a humane law-enforcement department and the over 100 dog-fighting investigations he had either worked or supervised. Christiansen also has taught 30 to 40 courses to law enforcement officers on dog fighting. His testimony was thus not subject to the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See, e.g., Courtaulds Fibers, Inc. v. Long, 779 So.2d 198 (Ala. 2000) (holding that veterinarian’s opinion as to cause of death of horses was not scientific evidence subject to the admissibility requirement of Frye). Instead, the admissibility of Christiansen’s testimony was governed by Rule 702, Ala.R.Evid. Christiansen’s testimony is admissible under Rule 702 because his “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue .... ” Rule 702, Ala.R.Evid. Thus, Ware is not entitled to any relief.

Ware also argues that Flott should not have been allowed to provide expert testimony. Although the State asserts in its brief that Flott was properly classified and permitted to testify as an expert, the record is devoid of any indication that Flott was ever offered as an expert by the State. The State did question Flott regarding her qualifications, but no formal motion was ever made offering her as an expert. Because Flott was never offered as an expert, we find Ware’s argument to be moot.

Ware did object once during Flott’s testimony regarding the wounds found on the dogs, and the trial court overruled the objection. “ ‘The determination of whether evidence is relevant and therefore admissible rests within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion.’ ” Brown v. State, 821 So.2d 219, 224 (Ala.Crim.App. 2000) (quoting Jennings v. State, 513 So.2d 91, 95 (Ala.Crim.App.1987)). We find there was no abuse of discretion in the trial court’s ruling regarding this testimony and, therefore, Ware is not entitled to any relief.

V.

Next, Ware asserts that the sentence imposed upon him by the trial court is excessive and violates his rights under the Eighth Amendment to the United States Constitution. Ware was to serve 20-year concurrent sentences for the dog-fighting charges and a 20-year sentence for the possession-of-a-controlled-substance charge. The crimes of which Ware was convicted are Class C felonies, which carry a sentence ranging from one year and one day to 10 years. §§ 3-1-29, 13A-5-6, 13A-12-212, Ala.Code 1975. Since Ware had a prior felony conviction, he was sentenced under the Habitual Felony Offender Act, which required Ware to be sentenced as if he committed a Class B felony. § 13A-5-9(a)(1), Ala.Code 1975. A sentence for a Class B felony is a term of imprisonment between 2 and 20 years. § 13A-5-6(a)(2), Ala.Code 1975. Thus, Ware received the maximum sentence allowed by law.

As this Court has previously held: “It is well settled that ‘[w]here a trial judge imposes a sentence within the statutory range, this Court will not disturb that sentence on appeal absent a showing of an abuse of the trial judge’s discretion.’ Alderman v. State, 615 So.2d 640, 649 (Ala.Crim.App.1992). ‘The exception to this general rule is that “the appellate courts may review a sentence, which, although within the prescribed limitations, is so disproportionate to the offense charged that it constitutes a violation of a defendant’s Eighth Amendment rights.” ’ Brown [v. State, 611 So.2d 1194,] 1197, n. 6 [ (Ala.Crim.App.1992) ], quoting Ex parte Maddox, 502 So.2d 786, 789 (Ala. 1986).”

Adams v. State, 815 So.2d 583, 585 (Ala.Crim.App.2001).

Ware was given a heightened sentence under the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. Legislatively mandated sentences carry a presumption of validity. McLester v. State, 460 So.2d 870, 874 (Ala.Crim.App.1984). “ ‘Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes....’” 460 So.2d at 874, quoting Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). “ ‘ “Where the punishment prescribed by the legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment.” ’ ” Wilson v. State, 427 So.2d 148, 152 (Ala.Crim.App.1983) (quoting Watson v. State, 392 So.2d 1274, 1277 (Ala.Crim.App.1980), quoting in turn Ex parte Messelt v. State, 351 So.2d 636, 639 (Ala.Crim.App.1977)). Likewise, this Court has held that the Habitual Felony Offender Act does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. See Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980.)

Ware’s argument that his sentence is excessive is without merit. Ware’s sentence is within the guidelines imposed by statute; therefore, his rights under the Eighth Amendment were not violated. He is thus not entitled to any relief on this claim.

VI.

Finally, Ware argues that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his conviction cannot stand because his prior felony conviction was not pleaded in the indictment or presented to the jury. In Apprendi, the United States Supreme Court expressly omitted prior convictions from the facts that would increase the penalty for a crime beyond the prescribed statutory maximum that must be submitted to the jury. 530 U.S. at 490, 120 S.Ct. 2348. This Court has previously recognized that the pretrial notice provision set forth in Poole v. State, 846 So.2d 870 (Ala. Crim.App.2001), does not apply to the Habitual Felony Offender Act. See Harrison v. State, 879 So.2d 594, 597 (Ala.Crim.App. 2003.) Therefore, Ware is not entitled to any relief as to this issue.

For all the foregoing reasons, we affirm the judgment of the Mobile Circuit Court.

AFFIRMED.

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

BASCHAB, J., concurs in the result.

      . Four codefendants, including Ware's wife, Tanisa, were tried during the same trial as Ware. After the State rested, all parties moved for a judgment of acquittal pursuant to Rule 20.2, Ala.R.Crim.P. The trial court granted the motions as to three of the defendants but did not grant the motions of Ware and his wife. The jury returned a not-guilty verdict in Mrs. Ware’s case.

      . Shaeffer testified that he was escorted into the backyard by Officer White and Mr. Ware, although Mr. Ware did not identify himself at that time. However, other witnesses testified that Mr. Ware was not present at his residence at that time.

      . The testimony presented during the trial provided inconsistent accounts of the number of dogs located at the Ware residence. The number varied from "approximately 20” to 23. The exact number of dogs is irrelevant to that disposition of this matter.

      . Although not clear in the record, it appears that a city license is required to operate a kennel. This issue is not presented on appeal.

      . Pursuant to § 13A-11-242, Ala.Code 1975, Flott has been appointed as a trained agent to inspect allegations of cruelty to animals.

      . However, Mrs. Ware testified that Mr. Ware was not outside but instead was in the residence and unavailable when Flott arrived.

      . An exercise wheel is a device consisting of a wheel on which a dog is placed as well as a cage in which a “bait animal” (e.g., cat, opossum, squirrel, raccoon, or smaller dog) is placed for the dog to chase. This equipment is used to build a dog's strength and endurance.

      . A leash is tied above the treadmill, which holds the dog. When the treadmill is turned on, the dog is forced to run. This also increases a dog’s strength and endurance.

      . A "flirt pole” is a rope tied in a tree onto which a chewy object containing blood or grease is tied. The dog bites the "flirt pole” and holds onto it, thus building the dog’s jaw and neck muscles.

      . Testimony indicated that it is common practice in dog fights for the owners to agree that the dogs must be a certain weight at the time of the fight.

      . In his argument regarding the sufficiency of the evidence, Ware appears to also venture into the realm of the weight of the evidence. However, Ware did not address the weight of the evidence in his motion for a new trial; thus, that issue is not preserved for us to consider on appeal. Moreover, even had the issue been preserved for appeal, we could not consider it. As this Court explained in Johnson v. State:

      "The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, 'viewing the evidence in the light most favorable to the prosecution, [a] rational fact finder could have found the defendant guilty beyond a reasonable doubt.' ...
      "In contrast, 'the "weight of the evidence" refers to a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. ' "[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.”

        Johnson v. State, 555 So.2d 818, 819-820 (Ala.Crim.App.1989) (citations omitted). Thus, this Court will not address the issue of the weight of the evidence.

      . The record from the suppression hearing is denoted as "Supp. R.”


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Kelvin Lamont SHAW v. STATE of Alabama.
    CR-04-2145.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.
    Rehearing Denied June 16, 2006.
    Certiorari Denied Aug. 11, 2006 Alabama Supreme Court 1051378.

      Kelvin Lamont Shaw, pro se.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Kelvin Lamont Shaw, appeals from the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his June 2003 conviction for trafficking in marijuana and the resulting sentence of life imprisonment. On April 23, 2004, this Court affirmed Shaw’s conviction and sentence, by unpublished memorandum. Shaw v. State (No. CR-02-2116), 919 So.2d 1236 (Ala.Crim.App.2004) (table). A certificate of judgment was issued on August 13, 2004.

On May 18, 2005, Shaw filed this, his first, Rule 32 petition in which he contended: (1) that he received ineffective assistance of trial counsel and appellate counsel, raising 10 instances of alleged deficient representation; (2) that the trial court was without jurisdiction to render a judgment or to impose sentence in his case because, he said, the court failed to conduct an allocution before sentencing Shaw; (3) that the trial court erred when it failed to instruct the jury that no adverse inference could be drawn from Shaw’s decision not to testify; (4) that proper forensic tests were not conducted on the plant material seized during his arrest; and (5) that the State failed to disclose the criminal history of prospective jurors. On June 20, 2005, the State filed its response; it argued that Shaw’s arguments were both without merit and precluded from appellate review. On June 22, 2005, the trial court issued an order denying Shaw’s petition. This appeal followed.

Shaw argues that the circuit court erred in denying his Rule 32 petition without first conducting an evidentiary hearing. Additionally, he claims that he presented sufficient facts that, if true, would entitle him to relief.

I.

As stated above, Shaw alleged 10 instances of ineffective assistance of counsel.

As this Court noted in McNair v. State, 706 So.2d 828, 839 (Ala.Crim.App.1997):

“In order to prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged test set out by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.’
“Id. at 687,104 S.Ct. at 2064.
“ ‘The performance component outlined in Strickland is an objective one: that is, whether counsel’s assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Cr.App.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). Once a defendant has identified the specific acts or omissions that allegedly were not the result of reasonable professional judgment on counsel’s part, the court must determine whether those acts or omissions fall outside the wide range of professionally competent assistance. Id.
“When reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel’s conduct was appropriate and reasonable. Hallford v. State, 629 So.2d 6 (Ala.Cr. App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994); Luke v. State, 484 So.2d 531 (Ala.Cr.App.1985).
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’
“Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citations omitted). See Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
“And, even if an attorney’s performance is determined to be deficient, the petitioner is not entitled to relief unless it is also established that ‘there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
“In an ineffective assistance of counsel claim, the burden is on the claimant to show that his counsel’s assistance was ineffective. Ex parte Baldwin, 456 So.2d 129 (Ala.1984), affd, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).”

Here, Shaw has failed to meet the two-pronged test required by Strickland to prevail on an ineffective-assistance-of-counsel claim. First, Shaw failed to establish that his counsel’s performance was deficient. The gist of Shaw’s claims of ineffective representation appear to be: (1) that counsel was ineffective because he failed to consult with Shaw on all important decisions and keep him informed of all developments in the case; (2) that counsel was ineffective because he failed to adequately investigate all possible defenses; (3)that counsel was ineffective because he failed to challenge certain evidentiary rulings by the trial court or object to the trial court’s jury instructions; and (4) that counsel was ineffective because he failed to raise any meritorious issues on appeal. Shaw’s claims of ineffective counsel are merely bare allegations attacking various strategic decisions made by counsel during the course of Shaw’s trial and appeal. As such, the claims fail to meet the specificity requirement of Rule 32.6(b), Ala.R.Crim.P. Moreover, our examination of the record in Shaw’s case on direct appeal indicates that there is no merit to any of Shaw’s claims. A difference of opinion over trial strategy between a defendant and his counsel is insufficient to render counsel’s performance ineffective. See Patrick v. State, 680 So.2d 959, 962 (Ala.Crim.App.1996). Second, Shaw failed to show how counsel’s alleged deficiencies prejudiced his defense. Because Shaw failed to establish either prong of the Strickland test, the circuit court correctly determined that he was not entitled to relief on this claim.

II.

Shaw next contends that the trial court was without jurisdiction to render a judgment or to impose sentence because, he said, the court failed to conduct an allocution before sentencing him.

A claim that a defendant was not afforded the opportunity to address the court before the sentence is imposed is not a jurisdictional claim. See Davis v. State, 720 So.2d 1006, 1024 (Ala.Crim.App.1998). See also Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (“[t]he failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed .... is an error which is neither jurisdictional nor constitutional”). Therefore, Shaw’s claim is subject to the procedural bars in Rule 32.2(a)(3) and (5) because it could have been, but was not, raised and addressed at trial and on appeal.

We recognize that this Court’s decision in Webb v. State, [Ms. CR-04-0692, December 23, 2005] — So.2d - (Ala. Crim.App.2005), suggests that the lack of an allocution is a jurisdictional issue. Although our decision in Webb v. State also involved the appeal from the denial of a Rule 32 petition, the caselaw cited in support of our holding involves cases on direct appeal, rather than on collateral review. Both this Court and the Alabama Supreme Court have recognized that when this issue is raised on direct appeal the lack of an allocution or a waiver of allocution requires that the case be remanded. See, e.g., Ex parte Anderson, 434 So.2d 737, 738 (Ala. 1983); Newton v. State, 673 So.2d 799, 800-01 (Ala.Crim.App.1995); Cline v. State, 571 So.2d 368, 372 (Ala.Crim.App. 1990). However, as we noted in Davis v. State, 720 So.2d at 1024, also an appeal from the denial of a Rule 32 petition, a claim that the defendant was not afforded an allocution is not jurisdictional and is subject to the procedural bars set out in Rule 32.2, Ala.R.Crim.P. To the extent that this Court’s decision in Webb v. State suggests otherwise, it is hereby overruled.

In any event, we note that our examination of the record from Shaw’s direct appeal indicates that Shaw was, in fact, afforded an opportunity to address the court. Thus, there is no merit to this claim.

III.

Shaw also contends that the circuit erred in denying relief on his claims (1) that the trial court failed to instruct the jury that it could draw no adverse inference from Shaw’s decision not to testify; (3) that proper forensic tests were not conducted on the plant material seized during his arrest; and (5) that the State failed to disclose the criminal history of prospective jurors. These claims are all nonjurisdictional. Therefore, they are precluded from review because they should have been, but were not, raised at trial or on direct appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. See generally Lee v. State, 876 So.2d 514, 515 (Ala.Crim.App.2003). Accordingly, the circuit court correctly denied relief as to these claims.

IV.

Shaw’s final contention is that the circuit court erred in summarily denying the Rule 32 petition without conducting an eviden-tiary hearing and without including in its order specific findings of fact.

Rule 32.7(d), Ala.R.Crim.P., provides that See also Hannon v. State, 861 So.2d 426, 427 (Ala.Crim.App.2003); Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992). As discussed above, Shaw’s claims were either precluded from review, insufficiently pleaded, or without merit. Thus, summary disposition was appropriate.

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

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

AFFIRMED.

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

      . Shaw was represented by the same attorney at trial and on appeal.

      . This Court may take judicial notice of its own records. See Cogman v. State, 852 So.2d 191, 193 n. 1 (Ala.Crim.App.2002); Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App. 1992).

      . This is a distinction that we have recognized in a number of decisions in which we affirmed the trial courts’ judgments by unpublished memorandum. To date, however, we have not discussed this distinction in any opinion.


author: McMILLAN, Presiding Judge.

text:
    Matthew J. DOUGHERTY v. CITY OF MOUNDVILLE.
    CR-02-2202.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      Matthew Dougherty, pro se.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

Matthew J. Dougherty was found guilty in municipal court of failure to wear a safety belt in his automobile. He appealed to the circuit court for a trial de novo and, following a jury trial, was convicted of failure to wear a safety belt, a violation of § 32-5B-4, Ala.Code 1975. The circuit court ordered Dougherty to pay “a fine of $25 plus the costs of appeal.” (R. 52.)

The evidence at the trial de novo indicated that on July 4, 2002, Officer James Rainey of the Moundville Police Department noticed that the driver of a red Toyota pickup truck was operating his vehicle without wearing a safety belt. “[H]e didn’t have his seat belt on and the buckle was hanging on the side of the vehicle.” (R. 7.) Officer Rainey testified that he initiated a traffic stop and wrote the driver, whom he identified as Dougherty, a citation for failure to wear his seat belt. According to Officer Rainey, although he did not recall the exact model and year of the truck, it was a 1990s model vehicle. Officer Rainey further testified that Dougherty told him that “he didn’t believe in seat belts, and he would see me in court.” (R. 8.)

I.

Dougherty first argues that the trial court erred in taking judicial notice that the vehicle was manufactured with safety belts in compliance with Federal Motor Vehicle Safety Standard No. 208. Therefore, he contends, the trial court took “conclusive juridical notice of an essential element, thus relieving the State from the burden of proving that element.” (Dougherty’s brief at p. 8.) However, Dougherty failed to comply with Rule 28(a)(10), Ala. R.App.P., which requires that an argument contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.” Other than quoting § 32-5B-4(a), Dougherty has cited no legal authority to support his contention that the trial court erred in taking judicial notice that a 1990 model Toyota pickup was manufactured in compliance with the Federal Motor Vehicle Safety Standard No. 208 when it was manufactured. “Merely quoting a statute and emphasizing certain parts with bold type does not constitute a properly stated and supported contention.” Water Works & Sewer Bd. of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002) (opinion on application for rehearing). “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.” City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998).

Moreover, even had Dougherty’s brief regarding this issue been in compliance with Rule 28(a)(10), Dougherty would not have been entitled to any relief on this claim because he did not present this argument to the circuit court. When the trial court informed the parties during Dough-erty’s motion for a judgment of acquittal that it was taking judicial notice that a 1990 model pickup is supposed to be manufactured in compliance with the Federal Motor Vehicle Safety Standard No. 208, Dougherty did not object. “Review on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989). “Even constitutional claims may be waived on appeal if not specifically presented to the trial court.” Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997). For these reasons, Dougherty is not entitled to any relief on this claim.

II.

Dougherty further argues that the trial court’s oral instruction to the jury was improper. Specifically, he contends that the trial court improperly determined that the truck was manufactured in 1990, and, further, citing Rule 201(g), Ala. R.Evid., that the instruction failed to instruct the jury that it was not required to accept as conclusive the fact as to which the trial court had taken judicial notice.

The trial court instructed the jury, in pertinent part, as follows:

“Now, in this case the City of Mound-ville is required to prove to you that [Dougherty] was a front-seat occupant of a passenger car manufactured with safety belts in compliance with Federal Motor Vehicle Standard Number 208, and that he did not have a safety belt properly fastened about his body when the vehicle was in motion.
“Now, a passenger car, for purposes of this code section means a motor vehicle with motive power designed to carry ten or fewer passengers. A pickup truck would be included within a definition of a passenger car.
“As to Federal Motor Vehicle Safety Standard Number 208, the law provides that the Court, that’s me, can take judicial notice of certain things; this is without the parties having to go through the formality of proving something that’s not really in dispute. The Court, for instance, I can take judicial notice that it is now 1:39. I can take judicial notice. And I take judicial notice in this case that a Toyota pick-up truck manufactured in 1990 was manufactured with a seat belt in compliance with the Federal Motor Vehicle Safety Standard Number 208. So that’s not something you have to prove. I’m taking judicial notice of it, and that would apply to you.”

(R. 42-48.) At the conclusion of the oral instructions, Dougherty objected as follows: “And I would also like to raise an objection to your statement about the judicial notice. I believe that was a point in controversy.” (R. 48.)

Although Dougherty objected to the trial court’s oral instruction, the trial court did not rule on Dougherty’s objection. Therefore, this issue was not preserved for appellate review. See Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App. 1993) (“ ‘ “In the absence of a ruling, a request for a ruling or objection to the court’s failure to rule, there is nothing preserved for appellate review.” ’ ”). See also Davenport v. State, 653 So.2d 1006 (Ala.Crim.App.1994) (objection to trial court’s oral instructions not preserved where trial court merely stated “thank you,” which this Court held was not an adverse ruling).

Moreover, Dougherty’s objection did not reference Rule 201(g), Ala.R.Evid., or place the trial court on notice that Dough-erty was requesting that the trial court should have instructed the jury that it was not required to accept the judicially noticed fact as conclusive. Finally, taken in context, the trial court did not instruct the jury that Dougherty’s truck was a 1990 model. Rather, the judicially noticed fact was that 1990 model year Toyota pickup trucks were manufactured in compliance with Federal Motor Vehicle Safety Standard No. 208. This is evidenced by the fact that, after beginning its deliberations, the jury submitted questions to the trial court asking to know the model and year of Dougherty’s truck, to which the trial court responded that the jury had to resolve those questions based on the evidence. For these reasons, Dougherty is not entitled to any relief on this claim.

III.

Finally, Dougherty argues, and the State concedes, that the trial court erred in ordering him to pay court costs. Section 32-5B-5, Ala.Code 1975, provides that “[a]ny person violating the provisions of this chapter may be fined up to $25.00.” As both Dougherty and the State correctly note, § 32-5B-8(a), Ala.Code 1975, provides that “[a] person subject to a penalty pursuant to Section 32-5B-5[ ] shall not be assessed court costs on a conviction.” Dougherty further notes that § 12-14-70, Ala.Code 1975, provides that

“(a) All appeals from judgments of municipal courts shall be to the circuit court of the circuit in which the violation occurred for trial de novo.
“(e) Upon trial or plea of guilty in the circuit court on appeal, the court may impose any penalty or sentence which the municipal court could have imposed.”

We note further that the term “trial de novo” is defined as “[a] new trial on the entire case — that is, on both questions of fact and issues of law — conducted as if there had been no trial in the first instance.” Black’s Law Dictionary 1544 (8th ed.2004).

Here, the proceedings in the circuit court, as a result of Dougherty’s appeal for a trial de novo, constituted the trial, and the judgment rendered in the circuit court proceedings is the conviction. Thus, the circuit court did not have the authority to impose court costs upon Dougherty’s conviction in the circuit court. More succinctly, the $25 fine was proper, but the assessment of court costs was not. Therefore, this case is due to be remanded for the trial court to resentence Dougherty without imposing court costs. Due return shall be filed with this Court no later than 35 days from the date of this opinion.

AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.

COBB, SHAW, and WISE, JJ., concur.

BASCHAB, J., concurs in the result.

      . Section 32-5B-4(a), Ala.Code 1975, provides:
      "Each front seat occupant of a passenger car manufactured with safety belts in compliance with Federal Motor Vehicle Safety Standard No. 208 shall have a safety belt properly fastened about his body at all times when the vehicle is in motion."

       Note from the reporter of decisions: On August 11, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: BASCHAB, Judge.

text:
    Regan Scott KENNEY v. STATE of Alabama.
    CR-05-0542.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.

      William J. Broome, Anniston, for appellant.
    Troy King, atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On May 5, 2005, the appellant, Regan Scott Kenney, pled guilty to one count of first-degree receiving stolen property, eight counts of first-degree theft of property, one count of second-degree theft of property, one count of third-degree theft of property, and two counts of third-degree burglary. The trial court sentenced him to serve concurrent terms of seven years in prison on each of the first-degree receiving stolen property, first-degree theft of property, second-degree theft of property, and third-degree burglary convictions and a term of 365 days at hard labor on the third-degree theft of property conviction. It then suspended the sentences and placed him on supervised probation for five years. On November 3, 2005, the circuit court conducted a hearing and revoked the appellant’s probation. This appeal followed.

I.

The appellant argues that the circuit court did not conduct an adequate revocation hearing. Specifically, he contends that he was not afforded “the opportunity to testify and present witnesses and other evidence on his behalf and to cross-examine adverse witnesses.” (Appellant’s brief at p. 12.) However, the record indicates that the circuit court conducted a hearing on November 3, 2005; that the appellant was represented by counsel; that the appellant admitted that he had refused to take a drug test and that he had been charged with a new offense; and that the circuit court allowed the appellant to present his reasons for refusing to take the drug test. The appellant did not request an opportunity to present witnesses or any other type of evidence. Also, because the State did not present any witnesses during the hearing, the appellant was not denied the opportunity to cross-examine witnesses against him. Therefore, the appellant’s argument is without merit.

II.

The appellant also argues that he did not receive written notice of the alleged probation violations and that the State did not disclose the evidence it had against him. However, he did not present these arguments to the circuit court. Therefore, they are not properly before this court. See Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996) (holding that the general rules of preservation apply in probation revocation proceedings).

III.

Finally, the appellant argues that the circuit court did not enter a written order in which it stated the evidence upon which it relied and its reasons for revoking his probation.

“It follows that the requirement of Wyatt [v. State, 608 So.2d 762 (Ala. 1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United, States v.] Copeland, 20 F.3d [412,] 414 [ (11th Cir.1994) ].
“We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court’s order of revocation where the record fails to comply with Rule 27.6(f).”

McCoo v. State, 921 So.2d 450, 462-63 (Ala.2005) (emphasis added).

In its written revocation order in this case, the circuit court stated:

“The Defendant was brought before the Court on the 3rd day of November, 2005, it is hereby ORDERED that the Defendant’s probation is revoked and the Defendant ORDERED to serve the remainder of the sentence previously imposed in this proceeding.”

(C.R. 10.) The entire revocation hearing consisted of the following:

“THE COURT: CC-05-589, 590, 594, 596, 620, 622 through 629. State vs. Regan Kenney. Mr. Kenney, did you refuse a drug screen at the jail?
“THE DEFENDANT: Yes, sir, I did.
“THE COURT: Probation is revoked.
“[DEFENSE COUNSEL]: Judge, I think he has an explanation for that.
“THE COURT: Explain away.
“THE DEFENDANT: I was told not to give any drug screens to anybody but Wayne Hester or Carol Hays. If they would have came up there, I would have been happy to give one.
“THE COURT: You have been charged with a new offense?
“THE DEFENDANT: I have been charged with receiving stolen property, yes, sir.
“THE COURT: Probation is revoked.
“(Proceeding concluded.)”

(R. 2.)

The sparse record in this case does not clearly and unambiguously set forth the circuit court’s reasons for revoking the appellant’s probation or the evidence upon which it relied in revoking the appellant’s probation. Accordingly, we remand this case to the circuit court with instructions that it enter a written order in which it specifically states the evidence upon which it relied and its reasons for revoking the appellant’s probation. We caution the court that

“ ‘ “[a] ‘mere arrest’ or the filing of charges is an insufficient basis for revoking one’s probation.” ’ Clayton v. State, 669 So.2d 220, 221 (Ala.Crim.App. 1995), quoting Allen v. State, 644 So.2d 45, 46 (Ala.Crim.App.1994). ‘Before revoking probation because the probationer has been arrested, the trial court must be reasonably satisfied that the underlying charge against the probationer is true.’ Wade v. State, 652 So.2d 335, 336 (Ala.Crim.App.1994).”

Hunter v. State, 782 So.2d 845, 846 (Ala. Crim.App.2000) (footnote omitted). The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 21 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

        . We note that the five-year period of probation for the third-degree theft of property conviction exceeds the two-year maximum period of probation for a misdemeanor. See § 15-22-54(a), Ala.Code 1975. However, because the circuit court revoked the appellant’s probation and reinstated the original sentences, the issue of whether the probationary period the circuit court imposed exceeded the maximum in that case is moot.

       Note from the reporter of decisions: On August 11, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE—RULE 3.800.
    No. SC06-1780.
    Supreme Court of Florida.
    Feb. 8, 2007.
    William C. Vose, Chair, The Florida Bar Criminal Procedure Rules Committee, Orlando, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Paula S. Saunders, Co-Chair, The Florida Association of Criminal Defense Lawyers (“FACDL”) Amicus Curiae Committee, Office of the Public Defender, Tallahassee, FL, and Michael Ufferman, Co-Chair, “FACDL” Amicus Curiae Committee, Michael Ufferman Law Firm, P.A., Tallahassee, FL, Responding with comments.
   PER CURIAM.

On its own motion, the Court amends Florida Rule of Criminal Procedure 3.800(a). The amendment adds the requirement that an order denying a motion to correct an illegal sentence under rule 3.800(a) expressly state that the movant has the right to appeal within thirty days of rendition of the order. The amendment was published for comment in The Florida Bar News on October 1, 2006. All comments received were in support of the amendment.

Accordingly, Florida Rule of Criminal Procedure 3.800(a) is amended as reflected in the appendix to this opinion. New language is indicated by underscoring. The amendment shall become effective immediately upon the release of this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

Rule 3.800. Correction, Reduction, and Modification of Sentences

(a) Correction. A court may at any time correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief, provided that a party may not file a motion to correct an illegal sentence under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal. All orders denying motions under this subdivision shall include a statement that the movant has the right to appeal within 30 days of rendition of the order.

(b) — (c) [No change]

Committee Notes

[No change]

Court Commentary

[No change]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const; Fla. R. Jud. Admin. 2.140(d).


author: CORTINAS, Judge.

text:
    PIANETA MIAMI, INC., Appellant, v. Alan LIEBERMAN and Diane Lieberman, Appellees.
    No. 3D06-1025.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    See also 865 So.2d 662.

      Arnstein & Lehr and Franklin Zemel and John M. Cooney, Ft. Lauderdale, for appellant.
    Kluger, Peretz, Kaplan & Berlin and Alan J. Kluger, Michael S. Perse, and Jennifer T. Oslé, Miami, for appellees.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

The petitioner, Pianeta Miami, Inc. (“Pi-aneta”), appeals from a non-final order denying Pianeta’s motion to release funds in escrow. Because the non-final order unjustifiably restrains Pianeta’s assets that exceed the amount of the final judgment and applicable prejudgment interest, it constitutes an improper injunction. We reverse.

This appeal arises out of litigation over the fraudulent sale of Pianeta’s hotel, the Angler Hotel (“hotel”), to the respondents, Alan and Diane Lieberman (“the Lieber-mans”). In December 2002, Pianeta brought an ejectment action against the Liebermans, claiming that the agent responsible for selling the hotel fraudulently stole Pianeta’s corporate identity and sold the hotel to the Liebermans without Piane-ta’s consent. The Liebermans also brought a counterclaim for unjust enrichment damages based on certain payments they made while in possession of the hotel. A jury found that the Liebermans were not bona fide purchasers of the hotel and could have prevented the fraud. Consequently, the sale of the hotel was declared void, and possession of the hotel was returned to Pianeta. However, the trial court awarded the Liebermans a judgment in the amount of $38,035.46, representing one year of property taxes they paid while in wrongful possession of the hotel.

Subsequently, the Liebermans moved for relief from the final judgment awarding them unjust enrichment damages, claiming that Pianeta had misled the trial court. The Liebermans alleged that Pianeta’s president provided false or misleading testimony at the unjust enrichment trial regarding the existence of any contractual offers for the hotel. Specifically, the Lie-bermans claimed that Pianeta’s president testified that he did not have any serious proposals to buy the hotel, although they claim he had an executed contract to sell the hotel for $5,000,000.

While their motion for relief from final judgment was still pending, the Lieber-mans also filed an emergency motion for an order requiring Pianeta to deposit $500,000 from the proceeds of the upcoming sale of the hotel into an escrow account. On May 4, 2005, the trial court granted the order. Pianeta did not appeal the order and, instead, deposited the funds in escrow.

In May 2005, the trial court also ordered a new trial on the Liebermans’ unjust enrichment claim based on the likelihood that Pianeta’s president perpetrated a fraud on the court. Thereafter, the trial court conducted a new trial on the Liebermans’ unjust enrichment claim and issued a final order, reimbursing the Liebermans $167,355.74 (“the new final judgment”), excluding prejudgment interest, for their expenditures on the hotel. Immediately, the Liebermans filed a motion for additur or rehearing on the new final judgment and a motion for determination of prejudgment interest.

On December 27, 2005, Pianeta filed a motion for remittitur or rehearing to set off damages for its loss of use or “reasonable rental value” of the hotel during the Liebermans’ wrongful possession period. On January 9, 2006, the trial court denied Pianeta’s motion for remittitur or rehearing as well as the Liebermans’ motion for additur or rehearing. On January 10, 2006, Pianeta amended its motion for re-mittitur or rehearing to include a request to release the funds in escrow that exceed the new final judgment.

In March 2006, the trial court conducted a hearing on the Liebermans’ motion for determination of prejudgment interest and Pianeta’s motion to release the funds in escrow. Subsequently, the court issued an order granting the Liebermans prejudgment interest on the amount they paid in property taxes during their wrongful possession period, and denying Pianeta’s motion to release the funds in escrow.

Pursuant to Rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure, we review this order as one granting an injunction. Konover Realty Assocs., Ltd. v. Mladen, 511 So.2d 705, 706 (Fla. 3d DCA 1987); see Ramos v. Stabinski & Funt, P.A., 494 So.2d 298 (Fla. 3d DCA 1986). It is well settled that an injunction cannot be used to restrain the use of a party’s unrestricted assets prior to the conclusion of an action at law. Konover, 511 So.2d at 706; Leight v. Berkman, 483 So.2d 476, 477 (Fla. 3d DCA 1986) (citations omitted); Supreme Serv. Station Corp. v. Telecredit Serv. Ctr., Inc., 424 So.2d 844, 844 (Fla. 3d DCA 1982). Furthermore, we have found that the preservation of funds in a contingent claim for money damages does not constitute a sufficient basis for injunctive relief. See, e.g., Konover, 511 So.2d at 706; Leight, 483 So.2d at 477; Ramos, 494 So.2d at 298; CMR Distrib., Inc. v. Resolution Trust Co., 593 So.2d 593, 594 (Fla. 3d DCA 1992); Oxford Int’l Bank & Trust Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54, 56 (Fla. 3d DCA 1979).

Here, the non-final order denying Pianeta’s motion to release the funds that exceed the new final judgment operates with the same purpose as the pre-trial injunction in Konover. However, unlike the order in Konover, the non-final order is not a pre-trial injunction requiring the deposit of the amount in controversy into the registry of the court. Konover, 511 So.2d at 706. Nevertheless, the non-final order effectively restrains the use of Pi-aneta’s unrestricted assets, the funds in escrow that exceed $167,355.74, plus prejudgment interest, pending the conclusion of the parties’ appeals. Clearly, the amount in excess of the new final judgment, plus prejudgment interest, remains disputed by the Liebermans and, thereby, is being used to improperly secure the collection of a greater award of money damages in the future. The Liebermans’ argument that Pianeta would make the assets unreachable by leaving the country before this court concluded the pending appeals certainly does not provide a legal basis for injunctive relief. See Konover, 511 So.2d at 705-06 (holding that the trial court erred in entering an order requiring seller to deposit $500,000 in escrow pending the outcome of the case, despite purchaser’s claim that recovery may be impaired because seller was ill, and if he died, the money would be tied up in the estate).

We reject the Liebermans’ contention that the order denying the release of the escrowed funds was a sanction against Pianeta for perpetrating a fraud on the court. It appears from the May 4, 2005 order requiring Pianeta to deposit $500,000 in escrow that the trial court was concerned about the preservation of the integrity of the judicial system. However, to date, the trial court has not made any findings of fraud or misconduct. Rather, it is clear from the record, the trial court continued to restrain Pianeta’s funds after the new final judgment was issued and prejudgment interest was determined, because it was concerned about the potential dissipation and/or future unavailability of the assets from the sale of the hotel.

Moreover, we find the Liebermans’ alternative argument, that the trial court improperly considered Pianeta’s motion to release the escrowed funds, is without merit. In the May 4, 2005 order compelling Pianeta to escrow the funds, the court stated that the proceeds of the sale of the hotel would be escrowed “pending further order of the court.” Here, it is of no consequence whether the request was raised in an amendment to a motion, a separate motion, or sua sponte by the trial court. Indeed, the court entertained the motion and unjustifiably denied the release of Pianeta’s unrestricted assets.

Reversed and remanded.

      . The Liebermans appealed the final judgment in Pianeta’s favor quieting title and granting ejectment. We affirmed the final judgment. Liebennan v. Pianeta Miami, Inc., 865 So.2d 662 (Fla. 3d DCA 2004).

      . The Liebermans appealed the denial of their motion for additur or rehearing on the final judgment. Currently, that appeal is pending with this court.

      . In Konover, we noted that an order requiring a court deposit may be reviewable under Rule 9.130(a)(3)(C)(ii) of the Florida Rules of Appellate Procedure, as one determining the immediate right to the possession of property. Konover, 511 So.2d at 706 n. 2 (citation omitted).


text:
    Jeffery MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2704.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2006.
    Rehearing Denied Jan. 30, 2007.
    Jeffery Moore, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006).

SAWAYA, MONACO and TORPY, JJ„ concur.


text:
    STATE of Florida, Appellant, v. Wesley JOHNSON, Appellee.
    No. 3D06-1705.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 2006.
    Rehearing and Rehearing En Banc Denied March 15, 2007.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Andrew F. Rier, Miami, for appellee.
    Before COPE, C.J., and GREEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The State appeals from an order which suppressed the appellee’s statement after he had invoked his Sixth Amendment right to counsel. Because, however, it is uncon-troverted that the appellee’s statement was spontaneous, and not “deliberately elicited” by the police, we reverse the trial court’s suppression of same. See State v. Delgadillo, 458 So.2d 20, 22 n. 2 (Fla. 3d DCA 1984), citing U.S. v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

Reversed and remanded for further proceedings.


author: RAMIREZ, J.

text:
    Gregory BETHEL, Appellant, v. SECURITY NATIONAL INSURANCE COMPANY, Appellee.
    No. 3D05-2881.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing and Rehearing En Banc Denied March 15, 2007.

      Beckham & Beckham, and Robert J. Beckham, Jr., Miami, for appellants.
    Hinshaw & Culbertson, and James H. Wyman, Fort Lauderdale; Hinshaw & Culbertson, and Maureen G. Pearcy, and Ronald L. Kammer, Miami, for appellee.
    Before GREEN, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

The defendant, Gregory Bethel, appeals the trial court’s final summary judgment entered in favor of plaintiff, Security National Insurance Company, determining that there is no insurance coverage for an automobile accident involving appellants Gregory Bethel and Laika Fernandez. We reverse because the passenger in this case, Laika Fernandez, did not meet the household exclusion for a “member of the family.”

Security National, the insurance company, issued an automobile insurance policy to Evelyn Bethel, Gregory Bethel’s wife, for the policy period running from February 21, 2005 through August 21, 2005. The policy had a limit of $100,000 per person and $300,000 per accident in bodily injury liability coverage. Both Evelyn and Gregory were listed as drivers on the policy. The policy covered two vehicles, a 2003 Chevy Tahoe and a 2002 Toyota Camry. Gregory was the owner of the Chevy Tahoe.

Security National’s policy in question provides coverage for bodily injury coverage with limits of $100,000 per person and $300,000 per accident. The policy defines “family member” as the following:

Family member means a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child, provided said family member does not own a private passenger auto.

The policy’s liability part reads, in pertinent part:

We will pay damages for bodily injury or property damage for which any covered person becomes legally responsible because of an accident. We will settle or defend, as we consider appropriate, any claim or suit asking for these damages ....

The household exclusion in Part A of the policy provides that Security National does not provide liability coverage:

11. For bodily injury, property damage or death sustained by any insured or any member of the family of an insured residing in the same household as the insured.

The policy states that words and phrases defined in the policy are boldfaced when used. While the term “family member” is boldfaced in the policy, the words “any member of the family” are not.

On March 26, 2005, Gregory was driving the Chevy Tahoe and was involved in a single-car accident causing injury to Laika, Evelyn’s sister, who was a passenger in the car. Laika was residing with Gregory and Evelyn at the time of the accident. When Evelyn, the policyholder, originally applied for the insurance, Laika was not residing at the Bethels’ home. The only adults residing in the Bethels’ home at that time were Gregory and Evelyn.

In August 2004, Laika temporarily moved in with Gregory and Evelyn. When Laika moved into the Bethels’ house, she had her own car, which she used as a private passenger automobile. She separately maintained her own automobile insurance on this car during the entire time that she lived with the Bethels. When the March 26, 2005 accident occurred, Laika still owned the 2004 Chevrolet Cavalier and used it as a private passenger automobile, while maintaining her own separate automobile insurance on her car.

Following the accident, Laika asserted a claim against Gregory for the $100,000 limit of the policy. In response, Security National denied coverage based on the “household exclusion,” that precludes bodily injury coverage to “members of the family” of an insured who reside in the same household as the insured. Security National then brought a declaratory judgment action to determine its obligations to provide coverage to Laika under the policy-

In its motion for summary judgment, Security National asserted that there was no coverage under the policy because of the household exclusion. The trial court agreed and granted summary judgment. We reverse.

In this case of first impression, we conclude that there is at least sufficient ambiguity to find coverage. The policy contains a common sense definition of a “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.” It then adds, “provided said family member does not own a private passenger auto.” The logic of this is that such a family member who owns his or her own auto would carry separate insurance and would not be increasing the risk to the insurer.

The exclusion that Security National relies upon provides:

We do not provide Liability Coverage:
11. For bodily injury, property damage or death sustained by any insured or any member of the family of an insured residing in the same household as the insured.

(emphasis added). It does not take a great deal of proficiency in English to learn that a “member of the family” and a “family member” are interchangeable terms to an ordinary speaker. Security National would have us change ordinary English usage by the use of boldfaced type. This we refuse to do.

Courts generally try to construe an automobile insurance policy based on the definitions in the policy. Grant v. State Farm Fire & Cas. Co., 638 So.2d 936, 937 (Fla. 1994). The scope and extent of insurance coverage is determined by the language and terms of the policy. Roberts v. Fla. Lawyers Mut. Ins. Co., 839 So.2d 843, 845 (Fla. 4th DCA 2003). See also Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000) (“Florida law provides that insurance contracts are construed in accordance with the plain language of the policies .... ”). Furthermore, under Florida law, the words used in an insurance policy are to be given their plain and ordinary meaning. Rigby v. Underwriters At Lloyd’s, London, 907 So.2d 1187,1188, n. 1 (Fla. 3d DCA 2005).

Giving the words their ordinary import, we conclude that a “family member” is the same thing as a “member of the family” and that this is clear from the plain meaning of the words in the policy. State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 244 (Fla. 3d DCA 2002) (“[T]erms utilized in an insurance policy should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street.’ ”). See also Steele v. Kinsey, 801 So.2d 297, 300 (Fla. 2d DCA 2001); Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994) (“[T]he terms of the contract must be given their everyday meaning and read in light of the skill and experience of ordinary people.”). We can ñnd no case in Florida stating that bold print changes the meanings of words.

First, Security National defined the term “family member” to exclude those members of the household who own their own private passenger automobiles. Laika owned her own private passenger automobile when the accident occurred and was therefore not a member of the family under Security National’s definition. France v. Liberty Mut. Ins. Co., 380 So.2d 1155, 1156 (Fla. 3d DCA 1980) (enforcing policy definition excluding those owning “a private passenger automobile”); Gilligan v. Liberty Mut. Ins. Co., 265 So.2d 543, 546 (Fla. 4th DCA 1972). See generally 8 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 116:5 (2005) (“[T]he classification of a vehicle may determine which persons are covered, as when a policy provides coverage for those household members who do not own a ‘private passenger automobile.’ ”). The exclusion applies only to members of the family. The exclusion does not apply to Laika who does not fit the definition of “family member” written by Security National. Accordingly, the household exclusion does not apply in this case.

In addition, Laika was not staying with her sister, Evelyn, when the automobile policy was issued to Evelyn. Laika maintained her own separate insurance on her own passenger car the entire time she was there and was not part of the household.

Security National’s policy must be construed as a whole. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003). When an insurer fails to define a term in a policy, the insurer cannot take the position that there should be a narrow, restrictive interpretation of the coverage provided. State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998). Because the policy must be interpreted strictly in favor of coverage, Security National’s policy should be construed to protect Gregory against Laika’s claims.

Insurance policies must be construed against the insurance company and in favor of the insured and insurance coverage. Bankers Life & Cas. Co. v. Vadra, 563 So.2d 200, 201 (Fla. 3d DCA 1990); Rabatie v. U.S. Sec. Ins. Co., 581 So.2d 1327, 1329 (Fla. 3d DCA 1989). “Where the language in an insurance policy is subject to differing interpretations, the policy language ‘should be construed liberally in favor of the insured and strictly against the insurer.’” Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002). Moreover, “[p]olicy provisions that tend to limit or avoid liability are interpreted liberally in favor of the insured and strictly against the drafter who prepared the policy, and exclusions to coverage are construed even more strictly against the insurer than coverage clauses.” Id.

As explained in Miller Elec. Co. of Fla. v. Employers’ Liab. Assur. Carp., 171 So.2d 40, 43 (Fla. 1st DCA 1965), the reason supporting this principle is that insurance policies are prepared by experts employed by insurance companies. “[T]he relationship of each provision to the others contained in the policy is difficult for laymen to understand or fully appreciate.” Id. Where there are two different interpretations which may be given to the words used in an insurance policy, the interpretation which allows the greater indemnity will govern. Id. Accordingly, the plain and ordinary meaning of these words indicates that the household exclusion does not apply to Laika as a “member of the family.”

Upon remand, we note that Security National never added the policy holder, Evelyn Bethel, as a party to the action. Before any proceeding for declaratory relief is entertained, all persons who have an actual, present, adverse, and antagonistic interest in the subject matter should be before the court. See Florida Dep’t of Educ. v. Glasser, 622 So.2d 944, 948 (Fla. 1993). See also § 86.091, Fla. Stat. (2004) (“When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration.”). Appellants properly asserted that Security failed to join an indispensable party.

For the foregoing reasons, we find that the trial court erred in entering summary judgment in Security National’s favor. We thus reverse the summary judgment and remand the case for trial.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    Margarita CARRASQUERO, Appellant, v. ETHAN’S AUTO EXPRESS, INC., and Abel Diaz, Appellees.
    No. 3D05-2805.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing Denied March 15, 2007.

      Lidsky, Vaccaro & Montes; Deutsch & Blumberg and James C. Blecke, Miami, for appellant.
    Richard A. Sherman, Fort Lauderdale; Acosta Strommen and Julio C. Acosta, Miami, for appellee Ethan’s Auto Express, Inc.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

After the jury had concluded otherwise, the trial court granted a reserved motion for directed verdict in favor of the defendant Ethan’s Auto Express, Inc., on the ground that, as a matter of law and notwithstanding that it was the record title holder, it was not the beneficial owner of the truck involved in the subject accident and thus was not liable for its negligent operation. We agree with the trial court.

The undisputed facts were that the co-defendant driver Abel Diaz, who worked for Ethan’s, bought the car for his individual use from Randall Auto Finance, Inc., paid the entire $4000 purchase price, and possessed, maintained and controlled the use of the vehicle himself. On the other hand, the owners of Ethan’s did not even or ever so much as see the truck, and agreed to take title in its name only as a tax-delaying convenience to Diaz. Under these circumstances, Ethan’s had no liability under the dangerous instrumentality doctrine. Wummer v. Lowary, 441 So.2d 1151 (Fla. 4th DCA 1983), review denied, 451 So.2d 849 (Fla.1984); Morgan v. Collier County Motors, Inc., 193 So.2d 35 (Fla. 2d DCA 1966); see Palm Beach Auto Brokers, Inc. v. DeCarlo, 620 So.2d 250 (Fla. 4th DCA 1993); Ferran Eng’g Group, Inc. v. Reid, 600 So.2d 1307 (Fla. 5th DCA 1992); Cooney v. Jacksonville Transp. Auth., 530 So.2d 421 (Fla. 1st DCA 1988); Cox Motor Co. v. Faber, 113 So.2d 771 (Fla. 1st DCA 1959).

Affirmed.

      . We have long commended this practice as efficiently avoiding the necessity of a new trial regardless of the appellate result. See Leon v. Fox, 791 So.2d 1188 (Fla. 3d DCA 2001); Mabrey v. Carnival Cruise Lines, Inc., 438 So.2d 937 (Fla. 3d DCA 1983); Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965).

      . Since both Ethan’s and Randall were dealers, the payment of the tax due the State on the sale of the truck could be delayed by thirty days from the date of the sale. See § 319.23(6)-(7)(a), Fla. Stat. (2006); Fla. Admin. Code R. 12A-1.007(l)(a), (8)(c). Diaz’s wife was expecting a child when the purchase actually took place and he needed financially to postpone the payment.


text:
    Patricia McKINNEY, as next best friend and natural guardian of Jaro S. Hladik, a minor, and Patricia McKinney, personally, Appellants, v. FORTUNE INSURANCE COMPANY, a Florida corporation, and Bob’s Barricades, Inc., a Florida corporation, Appellees.
    No. 3D06-207.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 2006.
    Rehearing and Rehearing En Banc Denied March 15, 2007.
    Metsch & Metsch and Lawrence R. Metsch; Arthur W. Tifford, Miami, for appellants.
    Lane, Reese, Aulick, Summers & Ennis and William S. Reese and John J. Cavo, Coral Gables, for appellee.
    Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Patricia McKinney, etc., et al, appeal an adverse final judgment entered in favor of appellee Fortune Insurance Company. We affirm, finding that there are no genuine issues of material fact and that section 319.30, Florida Statutes (2004), is inapplicable where, as here, the vehicle is not a “total loss” as defined in that section.

Section 319.30 defines a vehicle which constitutes a “total loss” as one when there is an agreement between the insurance company and the vehicle owner to replace the vehicle with one of like kind and quality. The record in this case shows that no such agreement existed between McKinney, the vehicle’s owner, and Fortune. Thus, as a matter of law, section 319.30 does not apply because the vehicle was not a total loss as defined in the statute.

We find no merit to the remaining arguments McKinney raised in this appeal, and do not find that there are any genuine issues of material fact so as to preclude the entry of final judgment in Fortune’s favor.

Affirmed.


author: VILLANTI, Judge.

text:
    John E. KIST, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4374.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2006.

      John E. Kist, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In accordance with the holding in Kist v. State, 900 So.2d 571 (Fla. 2d DCA 2004), John E. Kist seeks a new appeal of his convictions for grand theft and insurance fraud for the same transaction because the convictions violate double jeopardy protections. See Hays v. State, 844 So.2d 705 (Fla. 2d DCA 2008). The State rightfully concedes the error. We reject all other grounds raised by Kist. Accordingly, we reverse the convictions and sentences on counts 3, 5, 10, 12, and 17. In all other regards, we affirm.

Affirmed in part; and reversed and remanded for the trial court to vacate the judgment and sentences on counts 8, 5, 10, 12, and 17.

SALCINES and STRINGER, JJ., Concur.