author: PITTMAN, Judge. MURDOCK, Judge,

text:
    Kelly Elizabeth STULCE v. John Roger STULCE.
    2050751.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Joshua J. Lane, Anniston, for appellant.
    R. Allen Crow, Anniston, for appellee.
   PITTMAN, Judge.

The sole issue presented in this appeal is whether an Alabama circuit court or a Virginia domestic court properly exercised jurisdiction over the parties’ child pursuant to § 30-3B-101 et seq., Ala.Code 1975, Alabama’s version of the Uniform Child Custody Jurisdiction Enforcement Act (“the UCCJEA”).

Kelly Elizabeth Stulce (“the mother”) and John Roger Stulce (“the father”) were married in Virginia on June 13, 1999; following the marriage, the parties moved to Alabama when the father accepted a teaching position at Jacksonville University. One daughter, R.M.S. (“the child”), was born to the parties; the child was three years old at the time the parties’ divorce judgment was entered by an Alabama circuit court. In April 2003, 20 days after the birth of the parties’ child, the mother left the marital residence with the child and moved back to Virginia, where many of the mother’s relatives still lived. The mother never returned to Alabama.

On October 29, 2003, six months and one day after moving to Virginia, the mother filed a complaint in a Virginia domestic court seeking, among other things, a divorce from the father and custody of the child. However, earlier that same month, the father had filed a complaint in the Calhoun Circuit Court seeking similar relief. On November 12, 2003, the mother filed an objection to the Alabama circuit court’s jurisdiction over the parties and the child. In that filing, the mother notified the Alabama court of the pending action in Virginia and the fact that the Virginia court had not refused jurisdiction; in that pleading, the mother also requested that the Alabama court dismiss the father’s divorce action.

In January 2004, the Alabama court held a hearing on the mother’s motion and denied the motion to dismiss, asserting that the Alabama court had jurisdiction over the parties and the child. However, on February 27, 2004, the Virginia court made a determination that it was the home state of the child; therefore, that court opined that it' was the proper forum for determining custody and visitation issues.

Following numerous delays and an ore terms proceeding at which the mother’s attorney appeared solely for the purpose of objecting to the Alabama court’s exercise of jurisdiction, the Alabama court entered a judgment divorcing the parties on May 6, 2006. In that judgment, the court awarded the mother primary physical custody of the parties’ child, awarded the father extended visitation, and ordered the father to pay child support. The court specifically deviated from the Alabama child-support guidelines and reduced the father’s monthly child-support obligation by $100 to help defray his visitation costs. The court also divided the marital assets and debts between the parties. The mother filed a timely appeal challenging only the custody portion of the judgment.

The mother contends that the Alabama court did not have jurisdiction pursuant to the UCCJEA to enter a custody order regarding the parties’ child. The UC-CJEA sets forth the criteria for deciding which state’s courts will have jurisdiction to make a child-custody determination. Section 30-3B-201, Ala.Code 1975, provides the following:

“(a) Except as otherwise provided in Section 30-3B-204, a court of this state has jurisdiction to make an initial custody determination only if:
“(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
“(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, and:
“a. The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
“b. Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
“(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208; or
“(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
“(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
“(c) Physical presence of a child is not necessary or sufficient to make a child custody determination.”

(Emphasis added.)

The crux of the problem in this case is the apparent conflict between subsections (a)(1) and (a)(2) of § 30-3B-201. The record in this case clearly indicates that Alabama, not Virginia, was the home state of the child at the time the father filed his complaint seeking a divorce and child custody. See § 30-3B-201(a)(l), Ala.Code 1975. However, by the time the mother filed her divorce complaint, the necessary six-month residency period as to the mother and the child in Virginia had elapsed. Thus, the dispositive question is which state properly gained jurisdiction over the parties and the child for purposes of entering a divorce judgment and awarding custody of the child.

Pursuant to VaXJode Ann. § 20-146.12(A)(2) (Virginia’s nearly identical version of § 30-3B-201(a)(2), Ala.Code 1975), the Virginia court in this case could properly make an initial custody determination only if (1) the home state (Alabama) had declined to exercise jurisdiction, (2) the child and at least one parent had significant connections with Virginia, and (3) substantial evidence concerning the child’s care, protection, training, and personal relationships were available for the Virginia court’s review. In this case, however, the Alabama court refused to relinquish jurisdiction to the Virginia court, citing Alabama’s status as the home state of the child; thus, we conclude that the Virginia court did not acquire jurisdiction over the parties pursuant to its own version of the UCCJEA.

The mother contends, however, that § 30-3B-206(b) required the Alabama court to dismiss the father’s action and to defer jurisdiction to the Virginia court. That provision of the UCCJEA states, in pertinent part:

“Except as otherwise provided in Section 30-3B-204, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 30-3B-209. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.”

The mother asserts that the Alabama court abused its discretion when it failed to dismiss the father’s action pursuant to § 30-3B-206(b) because the Virginia court had accepted jurisdiction over the parties and had “jurisdiction substantially in accordance with this chapter.” The fatal flaw in that assertion is that the father’s complaint was filed in Alabama before the mother had established her and the child’s six-month residency in Virginia. On these undisputed facts, then, the Virginia court could not have exercised personal jurisdiction over the parties unless the Alabama court found that Virginia was “a more appropriate forum.”

Analogous to this situation is the one discussed in I.F.R. v. N.F.B., 825 So.2d 845 (Ala.Civ.App.2001). In that opinion, this court noted that the child in that case had resided in Alabama for six months preceding the commencement of the custody action and that at the time of the filing of that action there was no pending action in any other state. 825 So.2d at 850. Similarly, in this case, the Alabama court specifically determined that it was the proper forum because Alabama was the home state of the child when the father initiated his action, which occurred before the mother had established residency in another state under the UCCJEA. Based upon those facts, we conclude that the Alabama court could properly deny the mother’s motion to dismiss the father’s action despite the fact that the mother had filed a similar action in Virginia immediately after establishing residency in that state. We conclude that because Alabama was the child’s home state pursuant to § 30-3B-201(a)(1), the trial court did not err when it determined custody of the child. Although the appellate courts of Alabama have not been previously presented with exactly this specific statutory question, other states addressing similar jurisdictional conflicts arising under their versions of the UCCJEA have drawn essentially the same conclusions that we do here. See, e.g., Fisher v. Belcher, 269 Mich.App. 247, 713 N.W.2d 6 (2005), and In re J.S., 175 S.W.3d 526 (Tex.App.2005).

Additionally, although we conclude that because the father filed a complaint seeking a divorce from the mother and custody of the child during a period when the mother had not established residency in Virginia, he properly invoked the jurisdiction of the child’s home state at that time, our conclusion is not meant to preclude any subsequent determination, pursuant to § 30-3B-206(b), that another state could be a proper forum for making a subsequent determination regarding child custody and child support. We only conclude that, in this case, the Alabama court did not err when it continued to exercise jurisdiction over the parties after its jurisdiction was properly invoked pursuant to § 30-3B-201(a).

The father’s motion for an award of damages and fees pursuant to Rule 38, Ala. R.App. P., is denied.

AFFIRMED.

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

MURDOCK, J., concurs in the result, with writing.

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

MURDOCK, Judge,

concurring in the result.

Although I concur in the result reached by the main opinion, I respectfully disagree with the analysis provided therein. Most fundamentally, I disagree with the starting premise of the main opinion’s analysis, namely, that Alabama is the “home state” of the child.

Section 30-3B-102(7), Ala.Code 1975, defines the “home state” as

“[t]he state in which the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned.”

In this case, the child was born on April 8, 2003, in Alabama. Three weeks after the child’s birth, the mother moved with the child to Virginia. On October 12, 2003, after the child attained six months of age, but before the child had lived with the mother in Virginia for six consecutive months, the father filed a divorce action in Alabama. Thus, with respect to the child-custody proceeding commenced .in Alabama, the child did not live in Alabama with a parent or a person acting as a parent “for at least six consecutive months immediately before the commencement of [the] child custody proceeding.” Therefore, Alabama was not the child’s home state under the first sentence of § 30-3B-102(7).

Nor does Alabama qualify as the home state under the second sentence of § 30-3B — 102(7). First, the second sentence of § 30-3B-102(7) expressly applies only “[i]n the case of a child less than six months of age.” As noted, the child in this case was just over six months of age when the Alabama action was filed. Furthermore, reading the first and second sentences of § 30-3B-102(7) in •pañ materia, it is apparent that Alabama could be the child’s home state under the second sentence of § 30-3B-102(7) only if the child had “lived from birth” in Alabama until “the commencement of a child custody proceeding” in Alabama.

Although Alabama does not constitute the home state of the child for purposes of the Alabama action, Virginia does constitute the “home state” of the child for purposes of the custody proceeding filed by the mother in Virginia on October 29, 2003. The filing date of the Virginia action was six months and one day after the child began living with the mother in Virginia. Thus, the child did live in Virginia, with a parent or a person acting as a parent, “for at least six consecutive months immediately before the commencement of [the] child custody proceeding” in that state.

The fact that Alabama does not qualify as the child’s “home state” for purposes of the Alabama action and that Virginia does qualify as the child’s “home state” for purposes of the Virginia action, however, is not dispositive of the question whether the Alabama court properly exercised jurisdiction over the Alabama action. This is so because jurisdiction in Alabama can be grounded, under § 30-3B-201(a)(2)-(4), Ala.Code 1975, on bases other than Alabama being the “home state” of the child. Assuming the Alabama court has jurisdiction of the Alabama action under one of these other statutory bases, and given the fact as discussed above that the Virginia court has jurisdiction over the Virginia action, the competition for jurisdiction over the custody dispute must be resolved under § 30-3B-206(b), Ala.Code 1975. Under § 30-3B-206, the Alabama court is required to dismiss the Alabama action and defer to the proceedings in the other state only if the Alabama court determines “that a child custody proceeding has been commenced in a court in another state” prior to the commencement of the Alabama action (and the court in the other state has jurisdiction substantially in accordance with the UCCJEA). Ala.Code 1975, § 30-3B-206; see also Official Comment, Ala.Code 1975, § 30-3B-206 (“Under this Act, the simultaneous proceedings problem will arise only when there is no home state, no state with exclusive continuing jurisdiction and more than one significant connection state. For those cases, this section retains the ‘first in time’ rule of the UCCJA [Uniform Child Custody Jurisdiction Act].”).

Accordingly, I now turn to the question whether the above-stated assumption— that the Alabama court has jurisdiction of the Alabama action under one of the statutory bases stated in § 30-3B-201(a)(2)-(4) — is correct. Of the other bases provided within these subsections, I find § 30-3B-201(a)(2) to be dispositive, and I conclude that the Alabama court has jurisdiction. That section is applicable when, among other things, “[a] court of another state does not have jurisdiction under [§ 30-3B-201(a) ](1).” This condition is satisfied in the present case because in order to satisfy the requirement under subdivision (1), Virginia would have had to have been the “home state” of the child on the date of the “commencement of the proceeding” in Alabama. As noted above, it was not. In other words, no other state qualified as a “home state” for the child as of the date of the commencement of the Alabama proceeding. The other conditions that must be met for jurisdiction under § 30-3B-201(a)(2) are (a) that the child and at least one parent, or person acting as a parent, have a significant connection with this state other than mere physical presence and (b) that, substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. Although it is a close question, I conclude that these requirements are satisfied under the facts of the present case, and I therefore conclude that the Alabama court properly had and exercised jurisdiction over the custody proceeding filed in Alabama. Accordingly, I concur in the result reached by the main opinion.

      . For a discussion of similar provisions in the Uniform Child Custody Jurisdiction Act, the predecessor of the UCCJEA, see Krier v. Krier, 676 So.2d 1335 (Ala.Civ.App.1996).

      . Alabama was the home state of the child within six months before the commencement of the proceeding; the child was absent from this state, but a parent was still residing in Alabama at the time the action was filed.

      . For a discussion of the proper application of similar jurisdictional provisions of the Parental Kidnapping Prevention Act, see Patrick v. Williams, 952 So.2d 1131 (Ala.Civ.App.2006).

      . The Alabama court’s jurisdiction over the custody proceeding filed in Alabama is determined as of the date of that filing. See J.B. v. A.B., 888 So.2d 528, 531 (Ala.Civ.App.2004) (discussing the time of the commencement of the action in Alabama as the pertinent date to determine whether the Alabama trial court has jurisdiction under § 30-3B-201); see also, e.g., In re B.A.B., 124 S.W.3d 417, 419 (Tex.App.2004) (“[Tjhe date for determining whether a Texas court has jurisdiction to make an initial determination [under the UC-CJEA] is the date of commencement of the proceeding in Texas.”).


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    G.C. v. J.G. et al.
    2050456.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.

      Dale W. Snodgrass, Birmingham, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources, for appellees.
   MURDOCK, Judge.

G.C. appeals from an order of the Jefferson Circuit Court in a pending paternity case involving J.G., the mother; G.C.’s alleged daughter, B.L.G. (“the child”), who was born to the mother in September 1991; and the Jefferson County Department of Human Resources (“DHR”).

In July 2002, the mother filed a “Complaint for Paternity and Child Support” in the Jefferson Family Court (“the 2002 action”). The mother alleged that G.C. was the father of the child and that she was receiving benefits and services from DHR. The mother requested that the family court enter an order adjudicating G.C. to be the child’s father and directing him to pay child support.

In the 2002 action, both the mother and G.C. appeared pro se and DHR appeared through its attorney. The record does not reflect that the child was named as a party in the 2002 action, but the child was represented by a guardian ad litem. Upon DHR’s request, the family court entered an order requiring G.C., who apparently admitted that he was the child’s father, to submit to a paternity test.

At a hearing in January 2008, genetic-paternity-test results were submitted to the family court. The results reflected a 99.998% probability that G.C. is the biological father of the child. The mother, DHR, and the child’s guardian ad litem appeared at the January 2003 hearing, but G.C. did not appear at the hearing. The mother filed a motion for an entry of default and for a default judgment. The family court made an entry of default. The family court ordered the clerk to set the matter for “final default and/or trial” in February 2003. In February 2003, after neither G.C. nor the mother appeared at the scheduled final hearing, the family court entered an order that states, “[njeither party present case dismissed.”

In December 2004, the mother again filed a “Complaint for Paternity and Child Support” against G.C. in the Jefferson Family Court (“the 2004 action”). In April 2005, after a hearing on the merits of the mother’s petition, the family court entered an order adjudicating G.C. to be the father of the child, requiring him to pay the mother $409 per month as child support, and requiring him to pay $1,920 as reimbursement to the State of Alabama. The April 2005 order states that the case was “submitted on the evidence presented, or the agreement reached by the parties,” but the record does not reflect what evidence the family court received. G.C. filed a notice of appeal to the Jefferson Circuit Court.

Contemporaneously with the filing of his notice of appeal to the circuit court, G.C. filed an “Addendum to Notice of Appeal,” “citing his grounds for de novo appeal and defenses to the [April 2005] order.” Specifically, G.C. argued that the pending paternity proceeding “was due to be dismissed under the doctrine of res judicata” because the involuntary dismissal of the 2002 action was an adjudication on the merits under Rule 41(b), Ala. R. Civ. P.

In January 2006, after receiving briefs from the parties in regard to the issue of res judicata, the circuit court entered an order stating that the dismissal of the 2002 action “can not be determined to be Res Judicata since no issues were adjudicated in that case. As the Court understands it, this ruling would effectively end the questions pending before the Court and the Court elects not to address those other issues raised by either party.”

G.C. filed a “Motion to Alter, Amend or Vacate Order,” requesting that the circuit court vacate its January 2006 order and that it enter an order finding that the pending paternity proceeding was barred by the doctrine of res judicata. Thereafter, the circuit court entered an order denying G.C.’s motion. G.C. appeals.

We do not address the merits of G.C.’s appeal because it must be dismissed as being from a nonfinal judgment.

Although neither party has questioned this court’s jurisdiction, we must consider whether we have jurisdiction over this appeal, because “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The question whether a judgment is final is a jurisdictional question. The reviewing court, on a determination that the judgment is not final, has a duty to dismiss the appeal; if the appellee has not moved for a dismissal, then the court should dismiss the appeal on its own motion. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).

G.C.’s appeal from the 2004 action to the circuit court was for a trial de novo. See Ala.Code 1975, § 26-17-20(a). It is well settled that “[a] trial de novo, within the common acceptation of that term, means that the case shall be tried in the Circuit Court as if it had not been tried before.” Ball v. Jones, 272 Ala. 305, 309, 132 So.2d 120, 122 (1961). The circuit court’s January 2006 only purports to deny G.C.’s affirmative defense in the pending paternity proceeding. The order does not purport to adjudicate the issues in the pending paternity case, particularly whether G.C. is the child’s father.

Section 26-17-20(a), Ala.Code 1975, provides that a party may appeal “to the Court of Civil Appeals ... upon the entry of a final judgment in the circuit court on the trial de novo.” See also Ala.Code 1975, § 12-22-2. A “final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)).

Because the circuit court’s January 2006 order did not adjudicate the issue whether G.C. is the child’s father, the order appealed from is not final. Accordingly, we must dismiss the appeal.

APPEAL DISMISSED.

CRAWLEY, P.J., and THOMPSON, PITTMAN, and BRYAN, JJ., concur.

      . The record in this case is somewhat confusing, and it is unclear whether the various proceedings referenced in this opinion were filed by the mother or by the State of Alabama on behalf of the mother.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Parrish SAVAGE).
    CR-06-0022.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      Eleanor I. Brooks, district atty., and Kevin P. Davison, deputy district atty., for petitioner.
    Michael L. Kidd, Montgomery, for respondent.
   PER CURIAM.

The district attorney for the Fifteenth Judicial Circuit filed this petition for a writ of mandamus directing Judge William Shashy to set aside his order dismissing the indictment against Jamell Savage. In May 2006, Savage was indicted for burglary. Pursuant to a plea agreement, Savage pleaded guilty to burglary in the third degree. Before Savage was sentenced, the State informed the circuit court that it had just discovered that Savage had been using his brother’s identity and that he had been indicted under his brother’s name, Jamell Savage, instead of his true name Parrish Savage. The State moved to correct the court records to reflect Savage’s true name. On his own motion, Judge Shashy set aside the guilty plea, dismissed the indictment, and directed the State to reindict Savage under his true name — - Parrish Savage. This timely petition for a writ of mandamus followed. See Rule 21(a), Ala.R.App.P.

The State contends that Savage waived any irregularity in the indictment by pleading guilty to burglary in the third degree. It asserts that the circuit court erred in unilaterally setting aside the guilty plea and dismissing the indictment when Savage never objected to it. Savage asserts that the State has a right to appeal under Rule 15.7, Ala. R.Crim.P.; therefore, it cannot avail itself of a petition for a writ of mandamus because it has another available remedy. Savage does not dispute any of the factual assertions made by the State in its mandamus petition. “When a respondent fails to refute allegations in a mandamus petition the reviewing court must consider the petitioner’s assertions to be true.” State v. Maddox, 828 So.2d 946, 948 (Ala.Crim.App.2001).

Rule 15.7, Ala.R.Crim.P., provides that the State may appeal certain pretrial rulings dismissing an indictment. However, once jeopardy has attached the State no longer has a right to appeal. As we stated in Ex parte City of Tarrant, 850 So.2d 366, 367-68 (Ala.Crim.App.2002):

“Once jeopardy has attached, the City no longer has the right to appeal under Rule 15.7. The City’s only remedy at that point is to file a petition for a writ of mandamus. The Aabama Supreme Court in Ex parte Sullivan, 779 So.2d 1157 (Ala.2000), noted that mandamus is available to review a trial court’s dismissal of a case once jeopardy has attached. The Court stated:
‘“The power of an appellate court of this state to issue a writ of mandamus at the request of the State in a criminal case when the Legislature has not provided the remedy of appeal is not unqualified. We have said:
“ ‘ “Casual resort to mandamus cannot be permitted to undermine an accused’s right against double jeopardy, and only the rarest of circumstances merit an intervention in a criminal case by mandamus; nevertheless, circumstances can arise which present a compelling need for the issuance of mandamus to further important countervailing public interests.” “ ‘Ex parte Nice, 407 So.2d [874] at 880 [ (Ala.1981) ] (citations omitted) (emphasis omitted). Clearly, a writ of mandamus is a supervisory order; thus, an appellate court may issue this writ in any situation, within recognized limits, where this writ is necessary to protect the proper judicial administration of the courts.’
“Ex Parte Sullivan, 779 So.2d at 1161. This case is properly before us by mandamus petition; thus, we will proceed to the merits of the case.”

In relation to a guilty plea, jeopardy attaches when a guilty plea is entered and a court of competent jurisdiction accepts that plea. See Odoms v. State, 359 So.2d 1162, 1164 (Ala.Crim.App.1978). Here, Judge Shashy accepted Savage’s guilty plea, and the only matter to be resolved was Savage’s sentence. Judge Shashy, a circuit judge, clearly had jurisdiction to accept a guilty plea to a felony. See § 12-11-30(2), Ala.Code 1975. Thus, jeopardy had attached; therefore, the State’s only remedy was to file a petition for a writ of mandamus.

Section 15-8-90, Ala.Code 1975, provides:

“An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.”

However, Rule 13.5, Ala.R.Crim.P., supersedes this Code section. See Edwards v. State, 480 So.2d 1259, 1261 (Ala.Crim.App.1985) (Rule 15.5(a), Ala. R.Crim.P.Temp., now Rule 13.5(a), Ala.R.Crim.P., “supplants § 15-8-90, Code of Alabama, 1975.”) Rule 13.5(a), Ala.R.Crim.P., states:

“A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”

Rule 13.5(c)(2), Ala.R.Crim.P., states:

“No charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits.”

In discussing the impact of Rule 13.5, Ala.R.Crim.P., on § 15-8-90, Ala.Code 1975, this court in Hamilton v. State, 680 So.2d 987, 996-97 (Ala.Crim.App.1996), stated:

“The trial court’s allowing the State to amend the indictment to add ‘Jr.’ to the name on the indictment was not reversible error.
“ ‘Section 15-8-90 states that an indictment may be amended “when the name of the defendant is incorrectly stated or when any person, property or matter therein is incorrectly described,” but only when the defendant consents to the amendment. However, Rule 13.5(a), A.R.Crim.P., states that as long as “no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced,” an indictment may be amended by the court before the verdict or finding without the defendant’s consent. The commentary to that rule notes that Rule 13.5(a), changes the prior procedure set out in § 15-8-90, “except as to amendments to charge a new offense not contemplated in the original indictment.” ’
“Capers v. State, 606 So.2d 207 (Ala.Cr.App.1992) (footnote omitted; emphasis original).
“After reviewing the record, we conclude that no substantial rights of the appellant were prejudiced by amending the indictment. There is no indication from the record that the appellant did not know and understand that he was the person named in the indictment. The appellant has not shown that he suffered any prejudice by the amendment.”

The remedy for a claim of misnomer in an indictment is to file a motion prior to entering a plea. “After a plea to the merits, the appellant’s claim of misnomer comes too late.” Hembree v. City of Birmingham, 381 So.2d 664, 666 (Ala.Crim.App.1980). “Objections based on defects in the commencement of the proceeding or in the charge, other than lack of subject matter jurisdiction or failure to charge an offense, may be raised only by pretrial motion as provided in Rule 15.3.” Rule 15.2(a), Ala. R.Crim.P. (emphasis added).

Defects concerning the name of the accused in an indictment are defects related to personal jurisdiction. “A misnomer is not a jurisdictional defect or a failure to charge an offense.” Mayo v. State, 458 A.2d 26, 27 (Del.1983). Defects in personal jurisdiction may be waived if not raised in a timely manner and if they have no impact on a court’s subject-matter jurisdiction. See Finney v. State, 860 So.2d 367 (Ala.Crim.App.2002). As the Alabama Supreme Court recently noted in Ex parte Seymour, 946 So.2d 536 (Ala.2006):

“The language ‘jurisdiction to render judgment or impose sentence’ refers to the court’s jurisdiction over the subject matter, as opposed to the person. Although a court must have both personal jurisdiction and subject-matter jurisdiction in an action, Woolf v. McGaugh, 175 Ala. 299, 303, 57 So. 754, 755 (1911), defects in personal jurisdiction are waived if they are not raised before trial. City of Dothan v. Holloway, 501 So.2d 1136, 1139 (Ala.1986).”

946 So.2d at 537 n. 3.

In Finney v. State, this Court considered the validity of an indictment that omitted the defendant’s name from a count contained in the indictment. In finding that the defect was not fatal, we stated:

“Although we have found no Alabama cases directly on point with respect to this issue, we have found three cases from other jurisdictions with similar situations. In all three of those cases, the omission of the accused’s name from the body of the charging instrument was found not to be fatal. See State v. Nixon, 977 S.W.2d 119, 121 (Tenn.Crim.App.1997) (noting that the defendants had waived their challenge to the indictment because ‘[t]he omission of the defendants’ names in the body of the indictment neither relates to subject matter jurisdiction nor failure to allege an offense,’ but nevertheless holding that ‘[sjince the defendants were named on the cover sheet ... it is clear that they were the persons referred to in the body of the indictment’); State v. Geary, 884 S.W.2d 41, 44 (Mo.Ct.App.1994) (holding that failure of indictment to include the defendant’s name was not fatal because the original complaint that initiated the prosecution properly listed the defendant’s name and ‘[t]he record indi-eate[d] that [the] defendant ... knew what he was charged with and what facts the charge was based upon’); and Hill v. State, 523 P.2d 1114, 1116 (Okla.Crim.App.1974) (holding that information was not fatally defective because ‘while defendant’s name did not appear in the charging part of the information, it did clearly appear in the caption and in the verification of the charge by the District Attorney’).
“... Therefore, the omission of Fin-ney’s name from count 1 did not render the indictment void for failing to charge an offense nor did it deprive the trial court of subject-matter jurisdiction.”

860 So.2d at 374-75. Other jurisdictions have also held that errors in the name of an accused in an indictment are matters of form and not substance and may be waived. See Richardson v. State, 769 So.2d 230, 233 (Miss.Ct.App.2000) (“By failing to address the misspelling of his name in the indictment before pleading guilty, Richardson has waived his right to challenge the indictment based on the misnomer.”); Jones v. State, 504 S.W.2d 442, 443 (Tex.Crim.App.1974) (a wrong name in an indictment “is a matter of form only....”); Commonwealth v. Bruce, 230 Pa.Super. 507, 509-10, 326 A.2d 628, 629 (1974) (“Substantive aspects of an indictment may not be amended once they have been found and presented by a Grand Jury.... [I]f the defect is one of form it can be amended. Act of March 31, 1860, P.L. 427, § 13 (19 P.S. § 433) (formal statements in the indictment as to time, place, value, and name of the accused are open to amendment).”); United States v. Campbell, 235 F.Supp. 94, 96 (E.D.Tenn.1964) (“ ‘A name is not of the substance of an indictment. And a person may well be indicted, without the mention of any name, and designating him as a person whose name is to the grand jurors unknown.’ ”); United States v. Fawcett, 115 F.2d 764, 767 (3d Cir.1940) (‘“An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury.’ An indictment, then, is an accusation of a person of crime. It is an accusation against a person, and not against a name. A name is not of the substance of an indictment.”); State v. Puchbauer, 299 S.W. 821, 824 (Mo.Ct.App.1927) (“[Wjhere a defendant be indicted by the wrong name, he may be proceeded against by the name in the indictment; that, if he allege another name to be his true name, it must be entered in the minutes of the court, and thereafter the proceedings shall be against him by that name, with the same consequences as if he had been indicted by his true name.”); Lee v. State, 138 Miss. 474, 103 So. 233 (1925) (error in accused name in indictment is an amendable defect); Coats v. State, 101 Ark. 51, 141 S.W. 197, 200 (1911) (“[Wjhenever the person who is really meant is indicted or arrested, though by a wrong name, the proceedings are not thereby invalidated, ... the error in the name may be corrected.”).

As the Tennessee Court of Criminal Appeals stated in State v. Nixon, 977 S.W.2d 119 (Tenn.Crim.App.1997):

“Defects which may be challenged at any time during the pendency of the proceedings include objections which challenge lack of jurisdiction in the court and those objections contending that the indictment failed to charge an offense. ‘Lack of jurisdiction’ refers to subject matter jurisdiction which a defendant has no power to waive....
“However, certain defects in the indictment must be raised prior to trial, or will result in waiver. See Tenn. R.Crim.P. 12(f); State v. Kennedy, 649 S.W.2d 275, 279 (Tenn.Crim.App.1982). This category includes all objections or defects in the indictment other than those included in the first category. Included within this class are defects in the indictment that go to matters of form rather than substance. These statutory requirements include, in -part, failure of the district attorney general to sign the indictment, the identity of the person charged, the time at which the offense was committed, and the place of the offense. See Tenn.Code Ann. § 40-13-203, -207, -208 (1990). Jurisdiction over the person falls within this category of defects. The omission of the defendants’ names in the body of the indictment neither relates to subject matter jurisdiction nor failure to allege an offense. Thus, the defendants, by failing to object to the defect prior to trial, have waived this issue. See Tenn.R.Crim.P. 12(b)(2); 12(f).”

977 S.W.2d at 120-21 (emphasis added). The court’s holding in State v. Nixon is consistent with the Alabama Rules of Criminal Procedure and Alabama case law.

In this case, Savage never moved to dismiss the indictment because the indictment contained his brother’s name— the name Savage gave to police when he was arrested. Nor did Savage move to withdraw his guilty plea. Savage waived any defect in the misnomer in the indictment. Indeed, the circuit court, on its own motion, dismissed the indictment and set aside the guilty plea. We know of no provision in the law that allows a circuit court, ex mero motu, to set aside a legal and valid indictment after that court has accepted a guilty plea to the charge set out in that indictment. Savage pleaded guilty; thus, he waived any nonjurisdictional defects in the indictment. See Fuqua v. State, 912 So.2d 290 (Ala.Crim.App.2005). It is uncontested that Parrish Savage was the individual who was arrested, booked, and charged, and who pleaded guilty to burglary in the third degree. It is also undisputed that Parrish Savage was fully aware that he was the individual charged with burglary. Certainly, Savage can show no prejudice that has affected his substantial rights; therefore, according to Rule 13.5(c)(2), Ala.R.Crim.P., there were no grounds to invalidate the guilty-plea proceedings and to dismiss the indictment.

Furthermore, the indictment in this case contained the following phrase after the accused’s name: “whose name is otherwise unknown to the Grand Jury.” In 1915 the Alabama Court of Appeals stated the following concerning the use of a similar phrase in an indictment:

“[T]he demurrer was properly sustained, for the reason that the indictment did not purport to charge the defendant by his true name, but it, in legal effect, alleged that his true name was unknown to the grand jury, and that he was only known to the grand jury by the name of ‘Rich Olivere.’ This was a sufficient description of the defendant under our statute (Code, § 7142) [now codified at § 15-8-28, Ala.Code 1975], and it was wholly immaterial what his true name was, unless the proof on the trial showed that the grand jury knew his true name at the time it returned the indictment.”

Oliveri v. State, 13 Ala.App. 348, 352, 69 So. 359, 361 (1915) (emphasis added). See also Hughes v. State, 22 Ala.App. 344, 344, 115 So. 697, 698 (1928) (“Under the form of indictment here considered, defendant’s true name was immaterial, in the absence of proof that the grand jury did know his true name at the time of returning the indictment.”).

For a writ of mandamus to issue, the petitioner must establish: (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the court. See State v. Williams, 679 So.2d 275 (Ala.Crim.App.1996). The State has satisfied the requirements for the issuance of this writ.

Accordingly, this petition for a writ of mandamus is due to be granted. Judge Shashy is directed to vacate his order setting aside Savage’s guilty plea and dismissing the indictment. Judge Shashy is further directed to reinstate the guilty plea and to correct all court records to reflect that the conviction was entered against “Parrish” Savage. Judge Shashy should then proceed to sentence Parrish Savage for his conviction for burglary in the third degree.

PETITION GRANTED; WRIT ISSUED.

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

      . The exhibits filed with the mandamus petition show that Savage, whose name is actually Parrish Savage, gave his brother’s name and Social Security number when he was arrested and that he was subsequently indicted under that name.

      . The indictment states, in pertinent part:
      "The Grand Jury of Montgomery County charge that, before the finding of this indictment,
      “Jamell Ali Savage, alias
      "Jamel A. Savage, alias
      "Jamell A. Savage, alias
      “Jamell Ale Savage, alias
      "Mel Savage, alias
      "Mell Savage, alias
      "Willie Davis, alias
      "whose name is otherwise unknown to the Grand Jury....”

      .The State had seven days to file a mandamus petition challenging Judge Shashy's ruling. See Ex parte Thomas, 828 So.2d 952 (Ala.2001).

      . Section 15-8-28, Ala.Code 1975, states:
      "The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification.”


author: WISE, Judge.

text:
    STATE of Alabama v. Demetreus SEAWRIGHT.
    CR-05-0861.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellant.
    Anna Harrison Cook, Montgomery, for appellee.
   WISE, Judge.

Demetreus Seawright was arrested and charged with one count of unlawful distribution of a controlled substance (cocaine), a violation of § 13A-12-211, Ala.Code 1975. As a result of an alleged discovery violation by the State, the circuit court dismissed the indictment against Sea-wright. Pursuant to Rule 15.7, Ala. R.Crim.P., the State appeals the circuit court’s judgment dismissing Seawright’s indictment.

The record indicates that during a motion hearing held on January 11, 2006, the following occurred:

“MS. COOK [defense counsel]: We’d like to make a motion. The State has listed a video and audiotape that could be exculpatory in nature.
“THE COURT: Was there a video and audiotape?
“MR. DEAN [prosecutor]: My understanding from the police department is that they have been unable to find it.
“THE COURT: I’ll put it at the end of the docket to make a ruling on it.
“THE COURT: This is Demetreus Seawright. The defense announced ready. I understand they made a.request for discovery. There was a video and audiotape that you — Tell me what happened.
“MS. COOK: Well, Judge, there was a video and audiotape of this alleged buy involving my client. This video and audiotape has either been destroyed or the police don’t know where it’s at. It could be exculpatory in nature. It could be somebody else other than my client. I think it’s essential to my case.
“THE COURT: You made a demand for the discovery?
“MS. COOK: Yes.
“THE COURT: Y’all had the tape?
“MR. DEAN: Judge, we never had the tape. The police department had the tape. They have listed the tape. However, the State does have the confidential informant. He’s available right now in Ventress [Correctional Facility]. He’s not here today, but he is available to testify that he bought the drugs from Mr. Seawright.
“THE COURT: You want to present to the jury that, yes, we list the tape; sloppy police work?
“MR. DEAN: Well, that’s a question for the jury.
“THE COURT: He has a right to whatever evidence that was compiled by the police department. If the tape wasn’t — if there was an audiotape, and then they demand to see that tape, then there would be — they made a demand for that discovery, and that evidence has been lost, and it’s evidence that could be exculpatory. I’m going to dismiss the case.
“MR. DEAN: I would say I wasn’t going to use the tape at trial. I’m not going to use it.
“THE COURT: But the point is, they requested it for their case; it could be exculpatory. The Court dismisses the case.
“MR. DEAN: The State does object for the record. The State gives oral notice of its intent to appeal.
“THE COURT: All right. Take him out.”

(R. 2-4.)

Seawright’s case involves only issues of law and the application of the law to the undisputed facts. Thus, our review is de novo. See, e.g., Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003); State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).

In Alabama, discovery in a criminal case is governed by Rule 16, Ala. R.Crim.P. Rule 16.5, Ala.R.Crim.P., “places the remedy for [discovery] violations within the sound discretion of the trial court.” Smith v. State, 698 So.2d 189, 206-07 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997). As this Court stated in Hardy v. State, 804 So.2d 247 (Ala.Crim.App.1999), aff'd, 804 So.2d 298 (Ala.2001):

“Rule 16.5[, Ala.R.Crim.P.,] gives the trial court a range of sanctions that may be imposed in the event of noncompliance with the court’s discovery order. The rules allow for the admission of probative evidence while ensuring that the opposing party has adequate time to review the evidence. Among these remedies are a recess and a continuance. Buchannon v. State, 554 So.2d 477 (Ala.Crim.App.), cert. denied, 554 So.2d 494 (1989); McLemore v. State[, 562 So.2d 639 (Ala.Crim.App.1989) ]. ‘Moreover, the trial court should not impose a sanction which is harsher than necessary to accomplish the goals of the discovery rules.’ McCrory v. State, 505 So.2d 1272, 1279 (Ala.Crim.App.1986); Pilley v. State, 789 So.2d 870, 881 (Ala.Crim.App.1998).”

804 So.2d at 284 (emphasis supplied). With these basic principles in mind, we must now determine whether, in this case, the circuit court’s sanction was “harsher than necessary to accomplish the goals of the discovery rules.” McCrory v. State, 505 So.2d 1272, 1279 (Ala.Crim.App.1986).

An allegation that the State failed to preserve evidence that may be useful to a criminal defendant is governed by the United States Supreme Court’s holding in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); the Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. 333.

Since the United States Supreme Court’s decision in Arizona v. Youngblood, we have addressed whether the State’s failure to preserve evidence on a number of occasions mandates the reversal of a defendant’s conviction. As we explained in May v. State, 710 So.2d 1362 (Ala.Crim.App.1997):

“The Alabama Supreme Court, in Ex parte Gingo, 605 So.2d 1237 (Ala.1992), adopted the United States Supreme Court’s position in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), regarding the allegations that the state failed to preserve evidence potentially useful to the defense:
“ ‘ “[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. “The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at 57 (footnote), 109 S.Ct. 333 (footnote), citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959).’
605 So.2d at 1240-41. Gingo additionally recognized that a defendant’s right to due process can be violated when the loss or destruction is of evidence so critical to the defense that its loss or destruction makes the trial fundamentally unfair. Id. (citing Youngblood, 488 U.S. at 67, 109 S.Ct. at 342).”

710 So.2d at 1369-70. See also Snyder v. State, 893 So.2d 488, 528 (Ala.Crim.App.2003), cert. denied, 893 So.2d 563 (Ala.2004); Griffin v. State, 790 So.2d 267, 292 (Ala.Crim.App.1999), rev’d on other grounds, 790 So.2d 351 (Ala.2000).

Recently, this Court addressed whether dismissal of an indictment is an appropriate sanction for a discovery violation in State v. Moore, [Ms. CR-04-0805, July 21, 2006] — So.2d -, -(Ala.Crim.App.2005). We stated:

“There is no constitutional right to discovery in a criminal case in Alabama. However, Rule 16, Ala.R.Crim.P., as adopted by the Alabama Supreme Court, specifically provides for discovery in criminal cases. Rule 16.5, Ala. R.Crim.P., addresses the sanctions that a court may impose for noncompliance with a discovery order. Rule 16.5, states:
“ ‘If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection; may grant a continuance if requested by the aggrieved party; may prohibit the party from introducing evidence not disclosed; or may enter such other order as the court deems just under the circumstances. The court may specify the time, place, and manner of making the discovery and inspection and may prescribe such terms and conditions as are just.’
“(Emphasis added.) Although dismissing the charges is not specifically cited as a sanction in Rule 16.5, this Rule gives a circuit court wide discretion in considering the manner and nature of relief it affords a defendant who has been denied discovery. While we are aware of no reported Alabama case that affirms the dismissal of an indictment based on a prosecutor’s Brady violation, it appears from the wording of Rule 16.5, Ala.R.Crim.P., that this sanction may be available based on the circuit court’s supervisory powers.
“In Government of the Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir.2005), the federal district court reversed a lower court’s dismissal of the charges against Fahie based on a Brady violation. The court stated: ‘Our research discloses no case where a federal appellate court upheld dismissal with prejudice as a remedy for a Brady violation.’ 419 F.3d at 254 n. 6. The court then discussed the various federal circuits and their individual responses to prosecutorial misconduct that necessitates a retrial. The court stated:
“ ‘Given the “societal interest in prosecuting criminal defendants to conclusion,” it is especially important in the criminal context that a court applying sanctions for violation of Rule 16 carefully assess whether dismissal with prejudice is necessary to exact compliance with discovery obligations. [United States v.] Coleman, 862 F.2d 455 [ (3d Cir.1988) ]. In particular, as discussed above, a court must look to both the need to undo prejudice resulting from a violation and the appropriate deterrent value of the sanction in each case.
“ ‘Other courts have considered the question of when a court may dismiss an indictment under its supervisory powers. The Ninth Circuit has held that “[dismissal under the court’s supervisory powers for prosecutorial misconduct requires (1) flagrant misbehavior and (2) substantial prejudice.” United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir.1993). It has suggested that prosecutorial conduct might satisfy those requirements even where it would fail to justify dismissal under Brady directly. See [United States v.] Ross, 372 F.3d [1097] at 1110 [ (9th Cir.2004) ]; United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.1991). The Seventh Circuit has adopted a more restrictive approach, holding that a sanction under supervisory powers is only appropriate where the conviction could not have been obtained but for the failure to disclose exculpatory evidence. See United States v. Johnson, 26 F.3d 669, 683 (7th Cir.1994). At least two other circuits instruct courts to balance a number of factors in their choice of a sanction, including “the reasons for the Government’s delay in affording the required discovery, the extent of prejudice, if any, the defendant has suffered because of the delay, .and the feasibility of curing such prejudice by granting a continuance or, if the jury has been sworn and the trial has begun, a recess.” United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985); see also United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir.1988). While we appreciate the importance of all these factors, we believe that, to merit the ultimate sanction of dismissal, a discovery violation in the criminal context must meet the two requirements of prejudice and willful misconduct, the same standard applicable to dismissal for a Brady violation. Accordingly, we do not expect that trial courts will dismiss eases under their supervisory powers that they could not dismiss under Brady itself.
“ ‘Neither the trial court nor the Appellate Division systematically considered the factors relevant to a sanction for prosecutorial misconduct, and in particular, the two prerequisites to dismissal with prejudice.’
419 F.3d at 258.
“In United States v. Euceda-Hernandez, 768 F.2d 1307 (11th Cir.1985), the court stated:
“ ‘In exercising its discretion, the district court must weigh several factors, and, if it decides a sanction is in order, should fashion “the least severe sanction that will accomplish the desired result — prompt and full compliance with the court’s discovery orders.” United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982). See also [United States v.] Burkhalter, 735 F.2d [1327] at 1329 [ (11th Cir.1984) ]; United States v. Gee, 695 F.2d 1165, 1169 (9th Cir.1983) (citing Sarcinelli, supra). Among the factors the court must weigh are the reasons for the Government’s delay in affording the required discovery, the extent of prejudice, if any, the defendant has suffered because of the delay, and the feasibility of curing such prejudice by granting a continuance or, if the jury has been sworn and the trial has begun, a recess. Burkhalter, 735 F.2d at 1329; United States v. Hartley, 678 F.2d 961, 977 (11th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1014 and 459 U.S. 1183, 103 S.Ct. 834, 74 L.Ed.2d 1027 (1983); Sarcinelli, 667 F.2d at 6-7.
“‘The presence of a clear violation of a discovery order does not excuse a trial judge from weighing the factors cited above and imposing the least severe, but effective, sanction. The purpose of requiring the Government to disclose evidence is to promote “the fair and efficient administration of criminal justice by providing the defendant with enough information to make an informed decision as to plea; by minimizing the undesirable effect of surprise at trial; and by otherwise contributing to an accurate determination of the issue of guilt or innocence.” Fed.R.Crim.P. 16 advisory committee note.’
768 F.2d at 1312 (footnote omitted).
“Our neighboring State of Florida in State v. Carpenter, 899 So.2d 1176 (Fla.Dist.Ct.App.2005), cautioned against dismissing the charges as a sanction for a Brady violation and aptly stated:
“ ‘Dismissal of an information is, however, an extreme sanction that should be used with caution, and only when a lesser sanction would not achieve the desired result. State v. Thomas, 622 So.2d 174, 175 (Fla. 5th DCA 1993). See also [State v.] Del Gaudio, 445 So.2d [605] at 608 [ (Fla.Dist.Ct.App.1993) ] (“Dismissal of an information or indictment is ‘an action of such magnitude that resort to such a sanction should only be had when no viable alternative exists’ ”) (quoting State v. Lowe, 398 So.2d 962, 963 (Fla. 4th DCA 1981)). Before a court can dismiss an information for a prosecutor’s violation of a discovery rule or order, the trial court must find that the prosecutor’s violation resulted in prejudice to the defendant. Thomas, 622 So.2d at 175; Richardson v. State, 246 So.2d 771 (Fla.1971).
“ ‘ “The obvious rationale for limiting the sanction of dismissal of criminal charges to only those cases where no other sanction can remedy the prejudice to the defendant is to insure that the public’s interest in having persons accused of crimes brought to trial is not sacrificed in the name of punishing a prosecutor’s misconduct. And, of course, where the prosecutor’s failure to make discovery has not irreparably prejudiced the defendant, the sanction of dismissal punishes the public, not the prosecutor, and results in a windfall to the defendant.... [T]he rule authorizing the imposition of sanctions for discovery violation was ‘never intended to furnish a defendant with a procedural device to escape justice[.]’
‘Del Gaudio, 445 So.2d at 608 (quoting Richardson, 246 So.2d at 774).
“ ‘The order of dismissal in this case contains no finding of prejudice to the defendant nor does our review of the record support such a finding.’
899 So.2d at 1182-83. We agree with the rationale of the Florida appellate court. See also Fahie, 419 F.3d at 259 (‘[T]o merit the ultimate sanction of dismissal, a discovery violation in the criminal context must meet the two requirements of prejudice and willful misconduct, the same standard applicable to dismissal for a Brady violation.’).
“Under any analysis, to warrant dismissal of the charges the defendant must show intentional or willful misconduct and prejudice. Even if Moore established intentional and willful misconduct, which we question, the circuit court made no finding that the evidence that was suppressed could not, and has not been, furnished or made available to Moore. The trial court did not consider ‘the factors relevant to a sanction for prosecutorial misconduct, and in particular, the two prerequisites to dismissal with prejudice.’ Government of the Virgin Islands v. Fahie, 419 F.3d at 259.”

— So.2d at -, - (footnotes omitted).

After reviewing the record before us, we find no indication that the lost and/or destroyed audiotape and videotape contained exculpatory evidence. At the pretrial hearing Seawright presented nothing to support his claim that the information on the tapes was exculpatory. Instead, counsel merely stated: “It [evidence from the tapes] could be exculpatory in nature. It could be somebody other than my client.” (R. 2, emphasis supplied.) Evidence of a discovery violation must be based on more than speculation and conjecture. See McCart v. State, 765 So.2d 21, 23 (Ala.Crim.App.1999) (trial court did not err in refusing to compel discovery when motion claimed “that it was ‘well within reason to suspect that the tape or tapes will contain exculpatory material for at least one, if not more, of these co-defendants’ ” and in camera review of tapes revealed no exculpatory evidence).

Seawright failed to meet his burden of proving (1) that the tapes contained exculpatory evidence, (2) that the State’s loss or destruction of the tapes was the result of intentional or willful misconduct, and (3) that he was prejudiced by the lack of the tapes. Aside from speculating that the tapes might establish that someone other than Seawright sold the drugs to the confidential informant, counsel offered no evidence indicating that the tapes contained exculpatory evidence, that the loss or destruction of the tapes was intentional, or that the lack of the tapes would prejudice Seawright’s case. Nor did Seawright offer any explanation regarding how the tape was critical to his defense. See Grissom v. State, 624 So.2d 706, 710 (Ala.Crim.App.1993) (police destruction of audiotape did not render a fair trial impossible, and, contrary to defendant’s claim, audiotape was not the only way to demonstrate his innocence).

Here, just as in State v. Moore, the record is devoid of evidence that would establish either prejudice to Seawright’s case or willful misconduct on the part of the prosecution. Because Seawright failed to meet his burden of proof with regard to the alleged discovery violation, the circuit court erred in dismissing Seawright’s case.

Based on the foregoing, the judgment of the circuit court is reversed and this case is remanded for the circuit court to set aside its order dismissing the charges and to restore Seawright’s case to its active docket.

REVERSED AND REMANDED.

McMILLAN, P.J., and BASCHAB, J., concur. COBB and SHAW, JJ., concur in the result.


author: QUINCE, J.

text:
    Marcus JOHNSON, Petitioner, v. STATE of Florida, Respondent. Tommy L. Williams, Petitioner, v. State of Florida, Respondent.
    Nos. SC05-1933, SC05-1976.
    Supreme Court of Florida.
    April 26, 2007.
    Rehearing Denied July 11, 2007.
    John Stewart Mills of Mills and Creed, P.A., Jacksonville, FL, for Petitioners.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and Tonja Rene Vickers, Assistant Attorney General, Tampa, FL, for Respondent.
   QUINCE, J.

These cases are before the Court for review of the decision of the Second District Court of Appeal in Harris v. State, 911 So.2d 221 (Fla. 2nd DCA 2005). In its decision the district court ruled upon the following questions, which the court has certified to be of great public importance:

I.
ARE TRIAL COURTS REQUIRED TO NOTIFY DEFENDANTS OF THE TIME LIMIT FOR AN APPEAL OF A FINAL ORDER RESOLVING A MOTION UNDER FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a), EVEN THOUGH THE RULE DOES NOT EXPRESSLY CONTAIN THIS REQUIREMENT?
II.
IF A TRIAL COURT DOES NOT NOTIFY A DEFENDANT OF THE TIME LIMIT FOR SUCH AN APPEAL, DOES FLORIDA RULE OF APPELLATE PROCEDURE 9.141(c)(4) ENTITLE THE DEFENDANT TO SEEK A BELATED APPEAL?

Id. at 226. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified questions in the negative and approve the decision of the Second District.

In three cases before the Second District Court of Appeal that were consolidated for the purposes of the opinion, prisoners representing themselves sought belated appeals pursuant to rule 9.141(c)(4), Florida Rules of Appellate Procedure, from orders denying motions to correct illegal sentences under Florida Rule of Criminal Procedure 3.800(a). The Second District addressed the issues in the cases based on an assessment that appeals from the orders would have been untimely. Therefore, the issue was whether rule 9.141 was applicable to prisoners’ belated appeals. The court denied relief to the defendants based on the fact that no notice of appeal was filed within thirty days of the rendition of the orders denying rule 3.800(a) relief. Additionally, the court refused to allow belated appeals under rule 9.141(c)(4), finding that to do so would extend indefinitely the time to appeal most orders denying relief under rule 3.800(a). In addition the court opined that if it granted relief to the petitioners, it “[w]ould essentially reopen the time to appeal many orders that were not appealed in the past.” Harris, 911 So.2d at 225-26.

In reaching its ultimate conclusion to deny relief and certify questions to this Court, the district court examined Florida Rule of Criminal Procedure 3.670, which requires the trial court generally to notify a defendant, even when the defendant is represented by a lawyer, of his or her right to appeal a final order in a criminal proceeding. The court also noted a “similar notice of the right to appeal is required for two of the three typical motions for postconviction relief filed in non-death penalty cases.” Id. at 224. In its analysis, the court evidently concluded that rulings on rule 3.800(a) motions are not the type of decision that imposes “final judgment of conviction, withholds adjudication of guilt after a verdict of guilty, imposes a sentence, grants probation, or revokes probation.” Fla. R.Crim. P. 3.670. Additionally, the court noted that the defendant’s rights to be notified of the appellate procedure for other types of postconviction motions were specifically provided for in the applicable postconviction rule.

The district court also examined this Court’s opinion in State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975), where we held that “because rule 3.850 grants a right to appeal an adverse ruling, that right ‘is rendered useless if the movant is not informed of its existence and of the time limitations governing its utilization.’ ” Harris, 911 So.2d at 224 (quoting Shevin, 316 So.2d at 51). The district court further noted that after the Shevin opinion, rule 3.850 was amended in 1977 to require the trial court to advise a defendant of his or her appellate rights when denying a rule 3.850 motion. See Harris, 911 So.2d at 224 (citing Fla. Bar re Fla. Rules of Crim. Pro., 343 So.2d 1247 (Fla.1977)). The 1977 amendment to rule 3.850 also provided for a motion for rehearing. However, there was no similar amendment to rule 3.800 to accommodate motions for rehearing or to provide for notification of the right to appeal.

Rule 3.800(a) was amended, effective January 1, 2005, to permit motions for rehearing. See Amendments to the Fla. Rules of Crim. Pro., 886 So.2d 197, 199— 200 (Fla.2004). Thus, as the district court noted, as of 2005, only the “absence of a requirement that the trial court notify the defendant in an order denying a motion that he or she has a right to appeal 'within thirty days” remained. Harris, 911 So.2d at 225. Of interest to the district court was the fact that the defendants in the cases did not simply file untimely appeals from the postconviction proceeding, as apparently occurred in the Shevin case. The district court noted that instead all three defendants relied on rule 9.141(c)(4) to seek a belated appeal.

The district court answered both of the questions certified to us in the negative and noted it would have granted belated appeals if it had answered either question in the affirmative. See Harris, 911 So.2d at 226. Only the cases involving Marcus Johnson and Tommy L. Williams are before this Court for review. For the reasons that follow, we approve the decision of the Second District and answer both certified questions in the negative. Additionally, rule 3.800(a) has been amended to provide that in an order denying relief under the rule, the defendant must be notified of the right to appeal and the time period in which to bring the appeal. See In re Amendments to Fla. Rules of Crim. Pro., 949 So.2d 196 (Fla.2007).

The first certified question asks this Court to determine whether trial courts are required to notify defendants of the time limit for an appeal of a final order resolving a rule 8.800(a) motion, even though the rule does not expressly contain such a requirement. The second certified question asks this Court to decide whether defendants are entitled to belated appeals if the trial courts do not inform them of their appellate rights. As did the Second District, we answer these questions in the negative.

Our ruling is consistent with the way the other district courts of appeal have ruled on this issue in the past. See, e.g., Walker v. State, 863 So.2d 355 (Fla. 1st DCA 2003), review dismissed, 874 So.2d 1194 (Fla.2004); Dunbar v. State, 688 So.2d 993 (Fla. 5th DCA 1997); Simmons v. State, 684 So.2d 860 (Fla. 5th DCA 1996). In each of these cases, the district courts found not only that the trial court was not required under a plain reading of rule 3.800(a) to inform the defendant of the right to an appeal, but also that because there was no requirement to inform the defendant of an appeal right there was likewise no right to a belated appeal based on the failure of the trial court to inform the defendant. In so holding, the district courts contrasted the requirements of rule 3.800 with the requirements in rule 3.850.

Rule 3.850 specifically requires the trial court to advise defendants of their appellate rights. After this Court’s opinion in Shevin, rule 3.850 was amended to specifically require the trial court to advise defendants of the right to appeal adverse rulings on 3.850 motions. Because there was an obligation on the part of the court to tell defendants of this right, there was a corresponding right to a belated appeal if the court failed to discharge this obligation. On the other hand, rule 3.800 does not require trial judges to inform defendants of appellate rights. Thus it follows there can be no corresponding right to a belated appeal based on the court’s failure to perform an act that is not required.

We emphasize, however, that defendants have the right to appeal an adverse ruling of a 3.800(a) motion. Rule 9.140(b)(1)(D) allows defendants to appeal “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850, or 3.853.” Even before this rule specifically provided for appeals from the denial of 3.800(a) motions, such appeals were in fact allowed under the broad language of rule 9.140(b)(1), which allowed appeals by the defendants of “orders entered after final judgment or finding of guilt, including orders revoking or modifying probation.” See Hampton v. State, 596 So.2d 682, 683 (Fla. 4th DCA 1992) (finding the language of rule 9.140(b)(1) broad enough to include appeals from the denial of relief under rule 3.800(a)).

The order denying Johnson’s 3.800(a) motion was entered by the trial court on December 22, 2004, and the order denying Williams’ 3.800(a) motion was entered on November 23, 2004. At the time these orders were entered, rule 9.140(b)(1)(D) specifically provided that defendants could appeal orders denying 3.800(a) relief. Thus, these defendants could have and should have filed notices of appeal pursuant to this rule.

While all parties are on notice of the contents of the statutes and rules, we believe that it is in the best interest of all concerned that defendants who are denied relief under rule 3.800(a) be treated in a manner similar to defendants who are denied relief under rule 3.850. Defendants in the latter category are informed pursuant to the rule of their right to appeal within thirty days of the rendition of the order denying relief. Thus, rule 3.800 has been amended to provide that defendants who are denied relief are likewise informed of their right to appeal and the applicable time limitation.

CONCLUSION

For the reasons stated, we approve the decision of the Second District Court of Appeal and answer both certified questions in the negative. Trial judges are not required to inform defendants of the right to appeal the denial of relief under rule 3.800(a), and defendants are not entitled to belated appeals because the trial court did not inform them of their appellate rights.

It is so ordered.

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

      . See Fla. R.Critn. P. 3.850(g) ("All orders denying motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days of the rendition of the order.”); Fla. R.Crim. P. 3.853(f) ("All orders denying relief must include a statement that the movant has the right to appeal within 30 days after the order denying relief is rendered.”).

      . The Committee Notes to rule 9.140(b)(1)(D) indicate that the rule was amended in 2000 to include appeals from rule 3.800(a) and rule 3.850 motions to reflect the practice that was in effect at that time. See Fla. R.App. P. 9.140(b)(1)(D) committee note (2000).