author: PER CURIAM.

text:
    FIRST SOUTHERN BANK v. Caroline O’BRIEN and James C. O’Brien.
    2040667.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2005.

      Randall D. Quarles of Walson, Wells, Anderson & Birchall, LLP, Birmingham; and Charles W. Cochran III, Florence, for appellant.
    Gary L. Jester and Patrick J. Thomas of Jester & Jenkins, P.C., Florence, for ap-pellees.
   PER CURIAM.

First Southern Bank (“the Bank”) appeals from a December 17, 2004, order of the trial court that, among other things, entered a judgment in favor of James C. O’Brien and Caroline O’Brien and against the Bank. In its order, the trial court declared that the title Caroline obtained to two pieces of real property located in Lauderdale County — specifically, the former marital residence of Caroline and James and a parcel referred to as the “Mall Road Property” (“the commercial lot”) — pursuant to a March 25, 2002, divorce judgment had priority over the Bank’s June 28, 2002, recorded judgment lien.

This action was commenced on February 25, 2004, when James and Caroline filed in the trial court a joint petition to clarify the divorce judgment, alleging, among other things, that the existence of three recorded judgment liens against James in the Lauderdale Probate Court (“the probate court”) had caused a potential cloud on Caroline’s title to the commercial lot. The three liens identified by James and Caroline were an April 12, 2002, judgment lien in favor of Dwight Springer and against James; a June 28, 2002, judgment lien in favor of the Bank and against James; and a March 23, 2003, judgment lien in favor of American Express Travel Related Services, Inc. (“American Express”), and against James. James and Caroline later amended their petition to clarify to add a count seeking a judgment declaring, among other things, that Caroline owned the former marital residence and the commercial lot free and clear of the judgment liens. In the declaratory-judgment count, James and Caroline alleged that both the Springer judgment lien and the American Express judgment lien were recorded after the judgment lien in favor of the Bank.

Thereafter, James, Caroline, and the Bank filed separate briefs and submitted evidentiary materials in support of their respective positions. On December 17, 2004, the trial court entered a default judgment against American Express. In that order, the trial court also entered a judgment in favor of James and Caroline finding that Caroline held title to both the commercial lot and the former marital residence, free and clear of any claim or interest by the Bank in those properties. Although the record indicates that Springer had been served, the December 17, 2004, order did not address Springer or his lien.

On January 13, 2005, the Bank filed a motion styled as one purportedly pursuant to Rule 59(e), Ala. R. Civ. P., or, in the alternative, a motion styled as one purportedly pursuant to Rule 60(b), Ala. R. Civ. P.; that motion was denied on May 4, 2005.

The Bank appealed. Before this court may consider the issues that the Bank raises on appeal, this court must first determine whether it has jurisdiction to consider this appeal. See Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001) (jurisdictional issues may be considered ex mero matu). Because this case involved multiple parties and multiple claims, the December 17, 2004, order did not, when it was entered, constitute a “final” order. See Rule 54(b), Ala. R. Civ. P. As previously stated, the trial court, in its December 17, 2004, order, entered a judgment in favor of James and Caroline and against the Bank and entered a default judgment against American Express; it did not address Springer or his lien. The record indicates that Springer was served on February 26, 2004; he never answered or appeared in the proceedings. See Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (when one of the named parties had been served but did not appear and the trial court did not dispose of the claims against that party in its order, the claims against that party had not been adjudicated). Therefore, this court entered an order on September 23, 2005, reinvesting the trial court with jurisdiction for 14 days to “certify its December 17, 2004, order as a ‘final judgment’ pursuant to Rule 54(b), Ala. R. Civ. P., if appropriate.” (Emphasis added.) On September 30, 2005, the trial court entered an order certifying its December 17, 2004, order as a final judgment pursuant to Rule 54(b).

We conclude, however, that the December 17, 2004, order was not appropriate for Rule 54(b) certification. We note that the trial court (and counsel) may have been misled by our direction to enter a final judgment under Rule 54(b) “if appropriate,” which is, on occasion, included in remand orders issued by this court. An appellate court’s inclusion of such a condition in a remand order, as a practical matter, implicitly signals that certain circumstances may warrant the entry of a final judgment as to less than all the claims or as to fewer than all the parties. That this court may ultimately conclude that such circumstances do not, in fact, exist should not be viewed as an adverse reflection upon the litigants or the trial court as to their actions in accepting an appellate court’s invitation to undertake efforts to “finalize” a judgment in an effort to preserve an appeal that would otherwise be summarily dismissed.

In Moss v. Williams, 747 So.2d 905, 907 (Ala.Civ.App.1999), this court stated:

“Not every order has the requisite element of finality that can trigger the operation of Rule 54(b), Ala. R. Civ. P. James v. Alabama Coalition for Equity, Inc., 713 So.2d 987 (Ala.1997). ‘Rule 54(b) certifications should be made only in exceptional cases and should not be entered routinely.’ Parrish v. Blazer Financial Services, Inc., 682 So.2d 1383 (Ala.Civ.App.1996).”

Further, “‘[a]ppellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case ivhere the failure to do so might have a harsh effect.’ Point Clear Landing Ass’n, Inc. v. Point Clear Landing, Inc., 864 So.2d 369, 371 (Ala.Civ.App.2003) (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999)).

The issues in the separate claims made in this case “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987). The record is unclear even as to when Springer’s lien was recorded. There is a possibility that the claim against Springer would remain pending whether this court affirmed or reversed that portion of the trial court’s December 17, 2004, order entering a judgment in favor of James and Caroline and against the Bank. We conclude that the facts of this ease do not give rise to so exceptional a case as to justify the certification of the December 17, 2004, order as final pursuant to Rule 54(b). Therefore, we dismiss this appeal as being from a nonfinal judgment.

APPEAL DISMISSED.

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

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

      . James appealed the divorce judgment, and on November 8, 2002, this court affirmed that judgment, without an opinion. O’Brien v. O'Brien (No. 2010815, Nov. 8, 2002), 878 So.2d 349 (Ala.Civ.App.2002) (table).

      . In the original petition to clarify, James and Caroline had alleged that Springer's judgment lien was recorded before the Bank's judgment lien.

      . A true postjudgment motion filed pursuant to Rule 59(e) may only be made in reference to a final order or judgment. Rule 59(e); Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003); see also Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999). The same principle applies to a postjudgment motion filed pursuant to Rule 60(b); that rule states, in relevant part: "On motion ... the court may relieve a party ... from a final judgment [or] order ... for the following reasons: ...."


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    CASA INVESTMENTS COMPANY, as assignee of Colonial Bank v. Raymond BOLES.
    2040773.
    Court of Civil Appeals of Alabama.
    Dec. 2, 2005.

      James T. Baxter III and D. Milburn Gross, Jr., of Abies, Baxter, Parker & Hall, P.C., Huntsville, for appellant.
    Jerry Wayne Baker, Jr., Albertville, for appellee.
   THOMPSON, Judge.

On February 1, 1999, Raymond Boles and Larry D. Walker executed a “Commercial Promissory Note and Security Agreement” (“the promissory note”) payable in the amount of $80,112.50 plus interest to Colonial Bank. The promissory note listed Alabama addresses for all of the parties and listed three used vehicles as the specific collateral securing the indebtedness. The promissory note also stated that it was governed by Alabama law. Thereafter, Boles and Walker defaulted on the payment obligations under the promissory note. Walker filed for bankruptcy in the United States Bankruptcy Court for the Northern District of Alabama, Northern Division, and was discharged from any liability on the promissory note, leaving Boles solely responsible for the payment of the promissory note.

In May 2004, Casa Investments Company (“Casa”), as assignee of Colonial Bank, filed a complaint against Boles in the trial court alleging breach of contract and seeking payment of the outstanding principal amount of the promissory note, interest, a reasonable attorney fee, and costs. Casa attached a copy of the promissory note to its complaint.

Boles, proceeding pro se, answered and denied the allegations in the complaint. Thereafter, Boles obtained legal counsel and amended his answer to allege that he was not indebted to Casa or its assignor, Colonial Bank; that Casa, or Colonial Bank, had failed to notify him of the sale of the collateral securing the indebtedness; and that Casa, or Colonial Bank, had failed to sell that collateral in a commercially reasonable manner.

Casa filed a motion for a summary judgment pursuant to Rule 56(c), Ala. R. Civ. P., asserting that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. In support of its motion, Casa filed a copy of the promissory note and an affidavit of Ronald W. Cadle, president of Casa. In his affidavit, Cadle stated, among other things, that Casa was located in Ohio and that Colonial Bank had sold and assigned the promissory note to Casa on or about November 19, 2002.

Boles filed a motion in opposition to Casa’s summary judgment motion. In support of his opposition to the summary judgment motion, Boles filed his own affidavit stating, among other things, that Colonial Bank had never attempted to collect on the promissory note; that Colonial Bank had failed to dispose of the collateral in a commercially reasonable manner and had failed to give Boles notice of the sale of the collateral; and that Colonial Bank had failed to properly credit payments on the indebtedness.

After the parties had conducted some discovery, Boles filed a motion styled “Motion to Dismiss Complaint or Alternatively [Boles’s] Amended Answer Setting Out Affirmative Defenses.” In his motion, Boles asserted that the action should be dismissed because Casa was an Ohio corporation that had failed to obtain a certificate of authority to do business in the State of Alabama pursuant to § 10-2B-15.01 et seq., Ala.Code 1975. In support of his motion, Boles filed, among other things, a copy of the “Assignment of Note and Lien(s)” (“the assignment”) executed by Colonial Bank to Casa reflecting that Casa was an Ohio corporation, and a “certificate of non existence” from the Secretary of State of Alabama stating that “after a diligent search of the ... corporate records on file in this office ... no record is found to exist of any entity by the name: Casa Investments Company.” (Emphasis in original.) It is undisputed that Casa is not qualified to do business in the State of Alabama.

Casa filed a motion styled “Submission in Opposition to Motion to Dismiss and to Strike Affirmative Defense of [Boles].” In support of its motion, Casa filed another affidavit of Cadle. In his affidavit, Cadle stated in relevant part:

“2. Casa ... maintains no offices or employees or agents within the State of Alabama, nor has it in the past.
“3. The [a]ssignment ... attached to [Boles’s] [mjotion to [dismiss is an accurate copy of the assignment.... I have also attached a copy of a Limited Power of Attorney given by Colonial Bank to the undersigned, and certain other employees of Casa....
“4. The Assignment ... involved in this case occurred in ... Ohio, as evidenced by the Assignment and its acknowledgment.
“5. All contact between [Boles] and [Casa] has, prior to the institution of the collection activities by the attorney for [Casa], occurred via interstate commerce, either via the United States Mail, other delivery services, or long distance telephone, all originating in Ohio.
“6. Casa ... does not now, nor has it engaged in transacting any business with the State of Alabama.”

The limited power of attorney referred to in Cadle’s affidavit reflected that Colonial Bank is an Alabama corporation.

On April 26, 2005, the trial court entered a judgment granting Boles’s “motion to dismiss” and denying Casa’s motion for a summary judgment due to the “dismissal” of the action; that judgment was entered on the case action summary. On May 23, 2005, Casa filed a “motion to reconsider,” and on June 3, 2005, Casa filed a notice of appeal. On June 13, 2005, the trial court entered a notation on the case action summary stating that, because the case was on appeal, it no longer had jurisdiction to consider Casa’s postjudgment motion.

Although the trial court characterizes its April 26, 2005, judgment as one granting a motion to dismiss, because both sides submitted supporting evidentiary materials and the trial court did not expressly exclude consideration of those evi-dentiary materials the motion is properly treated as one for a summary judgment. See Rule 12(c), Ala. R. Civ. P.; see generally American Trust Corp. v. Champion, 798 So.2d 811, 813 (Ala.Civ.App.2001) (“When a trial court considers matters outside the pleadings in ruling on a defendant’s motion to dismiss filed pursuant to Rule 12(b)(6) ..., the motion is converted into a motion for a summary judgment.”); and Anderson v. Amberson, 905 So.2d 811, 812 (Ala.Civ.App.2004) (“ ‘ “[Wjhere matters outside the pleadings are considered on a motion to dismiss, the motion is converted into a motion for summary judgment ... regardless of its denomination and treatment by the trial court.” ’ ” (quoting Phillips v. AmSouth Bank, 833 So.2d 29, 31 (Ala.2002), quoting in turn Boles v. Blackstock, 484 So.2d 1077, 1079 (Ala.1986))).

This court reviews a summary judgment de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000).

“A summary judgment is appropriate where there is no. genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the non-movant to present “substantial evidence” creating a genuine issue of material fact.’ Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). ‘[Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmoving party and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Planners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Bain v. Gray, 835 So.2d 1034, 1037 (Ala.Civ.App.2002).

Casa contends that it was not necessary for it to qualify to do business in the State of Alabama to avail itself of Alabama courts to bring this collection action because, it maintains, it was engaging in interstate commerce as opposed to intrastate commerce.

Pursuant to § 10-2B-15.01(a), Ala.Code 1975, “[a] foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.” Further, § 10~2B-15.02(a), Ala.Code 1975, sometimes referred to as “the door-closing statute,” provides:

“A foreign corporation transacting business in this state without a certificate of authority or without complying with Chapter 14A of Title 40 may not maintain a proceeding in this state without a certificate of authority. All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void at the action of the foreign corporation or by any person claiming through or under the foreign corporation by virtue of the contract or agreement; but nothing in this section shall abrogate the equitable rule that he who seeks equity must do equity.”

Thus, §§ 10-2B-15.01(a) and 10-2B-15.02(a) “bar nonqualified foreign corporations from enforcing contracts in Alabama courts.” J.W. Hartlein Constr. Co. v. Seacrest Assocs., L.L.C., 749 So.2d 459, 461-62 (Ala.Civ.App.1999). Section 10-2B-15.02(a) “applies to contracts that are executed in other states but that are to be fulfilled in Alabama.” Vines v. Romar Beach, Inc., 670 So.2d 901, 903 (Ala.1995).

The party asserting the nonquali-fication defense has the burden of proof on the issue. Kyle v. Central Nat’l Bank, 226 Ala. 257, 146 So. 801 (1933). Once a party presents evidence establishing that a corporation is a nonqualified corporation, the burden shifts to the nonqualified corporation to present evidence establishing that it is exempt from § 10-2B-15.02(a). A nonqualified corporation establishes that it is exempt from § 10-2B-15.02(a) by showing that its activities are interstate as opposed to intrastate. J.W. Hartlein Constr. Co., 749 So.2d at 462. In J.W. Hartlein Construction Co., this court stated:

“[I]f the nonqualified corporation’s activities are considered ‘interstate’ rather than ‘intrastate,’ the corporation is protected from the requirements of [§§ 10-2B-15.01(a) and 10-2B-15.02(a)] by the Commerce Clause of the United States Constitution. Allstate Leasing Corp. v. Scroggins, 541 So.2d 17 (Ala.Civ.App.1989) (citing Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366 (Ala.1988)).”

749 So.2d at 462.

Foreign corporations whose activities in Alabama are merely incidental to a transaction of interstate business are immune from the effect of the door-closing statute. North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598 (Ala.1988). While an isolated transaction pursuant to the corporate function of a foreign corporation may constitute doing business under the door-closing statute, Alabama Western R. Co. v. Talley-Bates Constr. Co., 162 Ala. 396, 50 So. 341 (1909), the corporate presence within the state for purposes incidental to the transaction of interstate business is not doing business within the meaning of that statute. J.R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So.2d 472 (1942). Our supreme court has explained:

“[F]or a business to be governed by Alabama’s business qualification laws, it must be engaging in business in Alabama. For purposes of these laws, we distinguish between acts taken in the exercise of the corporate function, i.e., acts taken in performance of the ordinary corporate business, and incidental acts not a part of that business. As stated by this Court in Alabama Western R.R. v. Talley-Bates Constr. Co., 162 Ala. 396, 402, 50 So. 341, 342 (1909), ‘the doing of a single act of business, if it be in the exercise of a corporate function, is prohibited.’
“In Friedlander Bros. v. Deal, 218 Ala. 245, 118 So. 508 (1928), the Court .... stated that nonqualified foreign corporations are ‘ “prohibited from doing a single act of business in this state, if done in the exercise of its corporate function” — meaning, of course, the exercise of the function or business it was organized to do, and not a purely incidental and preparatory act.’ 218 Ala. at 248, 118 So. at 511, quoting Muller Mfg. Co. v. First Nat’l Bank, 176 Ala. 229, 57 So. 762 (1912). The Friedlander Court acknowledged ‘the important distinction between a merely incidental preliminary step and the doing or transaction of the real business of the corporation.’ 218 Ala. at 247, 118 So. at 510. It quoted Sullivan v. Sullivan Timber Co., 103 Ala. 371, 379, 15 So. 941, 944, 25 L.R.A. 543 (1894), in stating:
“ ‘ “The real test [to be applied is:] is the corporation engaged in the transaction of business, or any part thereof, it was created and organized to transact[?] If it be, it ‘does business’ within the meaning of the Constitution. If it be not — if the act it is doing, or has done, is not within its general powers and franchises — it is not the business to which the constitutional requirement is directed.” ’
218 Ala. at 247, 118 So. at 510.”

Vines v. Romar Beach, 670 So.2d at 903.

We conclude that, under the facts of this case, the purchase of chattel paper by Casa does not constitute doing business within the State of Alabama under the door-closing statute. In Associates Capital Services Corp. v. Loftin’s Transfer & Storage Co., 554 F.2d 188 (5th Cir.1977), the former Fifth Circuit, applying Alabama law, held that under the facts in that case a foreign corporation was not doing business in Alabama so as to require it to qualify to do business in order to bring a diversity action to collect contract payments allegedly due and owing from the defendant. In that case, the essence of the corporation’s business was the purchase of chattel paper secured by personal property, some of which was located in Alabama. The chattel paper was assigned to the corporation in Georgia, and the corporation’s contacts with Alabama residents had been almost exclusively through the mail and by telephone. 554 F.2d at 189-90. See also Continental Assurance Co. v. Ihler, 53 Idaho 612, 26 P.2d 792 (1933) (foreign corporation’s purchase, outside state, of notes and mortgages, and collection of interest and commencement of suit to collect indebtedness within state, held not to be “doing business” in state, so that corporation could maintain suit without complying with statutes respecting foreign corporations).

In the present case, it is undisputed that Casa is an Ohio corporation. However, the only evidence of Casa’s connection to the State of Alabama was its purchase of the promissory note from Colonial Bank. The assignment reflects that that transaction occurred in Ohio. Casa does not maintain any offices within the State of Alabama, nor does it .have any employees or agents within the State of Alabama. The only contact between Boles and Casa before Casa instituted this collection action was through the United States mail or other delivery service or by long-distance telephone calls, all originating in Ohio. The prosecution of lawsuits in this state to recover on otherwise valid contracts does not constitute doing business within the State of Alabama under the door-closing statute. Franklin Life Ins. Co. v. Ward, 237 Ala. 474, 187 So. 462 (1939). We hold that in merely seeking to enforce its contract, Casa was not doing business within the State of Alabama within the meaning of § 10-2B-15.02, and, therefore, that the judgment of the trial court is due to be reversed.

We note that Boles argues for the first time in his appellate brief that because Casa purchased the promissory note from Colonial Bank and was assigned Colonial Bank’s rights under the promissory note, the underlying promissory note must also evidence an interstate transaction in order for Casa to be exempt from § 10-2B-15.02. Although such an inquiry would be appropriate if Colonial Bank had also been a nonqualified foreign corporation, such is the not the case here. See § 10-2B-15.02(a) (specifically stating that that statutory provision applies to “any person claiming through or under the foreign corporation by virtue of the contract or agreement”); see also North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So.2d 598 (Ala.1988), and First Investment Co. v. McLeod, 363 So.2d 774 (Ala.Civ.App.1978) (where nonqualified corporate assignees of note (McLeod) and financing agreement (Sea Ray) sought to enforce those contracts in Alabama courts, this court applied the intrastate-versus-interstate analysis under the door-closing statute to the underlying transaction where the corporate assignors were also nonqualified foreign corporations). In the present case, the limited power of attorney reflects that Colonial Bank is an Alabama corporation; therefore, § 10-2B-15.02 cannot be used as a defense to the validity of the enforcement of the underlying promissory note. See § 10-2B-15.02 (specifically providing that it applies to foreign corporations).

REVERSED AND REMANDED.

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

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . We note that Boles points out for the first time in his appellate brief that the assignment reflects that it was executed on October 8, 2004, approximately five months after Casa filed this collection action on May 19, 2004.

      . The limited power of attorney gave Cadle and other agents of Casa the power to perform certain acts on behalf of Colonial Bank relating to certain accounts that Casa had purchased from Colonial Bank on November 19, 2002; however, the limited power of attorney did not identify the specific accounts.

      . We note that the United States Court of Appeals for the Eleventh Circuit was established on October 1, 1981, pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat.1995. Opinions of the former Fifth Circuit are binding on the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).

      . "It is well settled law that if a plaintiff is prohibited from maintaining an action in a state court because of its failure to qualify to do business within the state, it is barred from prosecuting its claim as a diversity action in a federal district court.” Associates Capital Servs. Corp. v. Loftin’s Transfer & Storage, 554 F.2d at 189.


author: McMILLAN, Presiding Judge. McMILLAN, Presiding Judge.

text:
    Shaber Chamond WIMBERLY v. STATE of Alabama.
    CR-00-1772.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2005.
    Opinion on Return to Remand Nov. 23, 2005.

      Bill Kominos, Ozark, for appellant.
    William H. Pryor, Jr., and Troy King, attys. gen., Margaret Mary (Missy) Ful-mer, deputy atty. gen., and Kristi L. Dea-son Hagood and Corey L. Maze, asst, at-tys. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Shaber Chamond Wim-berly, was convicted of five counts of capital murder for murdering Max King and Johneen King during the course of a robbery and a burglary, violations of §§ 13A-5-40(a)(2) and 13A-5-40(a)(4), Ala.Code 1975. The jury recommended, by a vote of 7 to 5, that Wimberly be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced Wimberly to death.

The circuit court stated the following about the evidence presented at Wimberly’s trial:

“On Sunday, January 26, 1997, during the evening hours, Max D. King and Johneen King were murdered at their home, located at Route 2, Box 4, Midland City, Alabama.
“On Sunday, January 26, 1997, the Kings were at their home on Highway 134, between Midland City and Pinck-ard, Alabama. Their motor vehicles were parked in their driveway and in their garage or carport. Their lights were on. It was obvious to anyone that the Kings were at home and awake. Their dwelling was occupied.
“The defendant and Calvin Butler approached the Kings’ home and knocked on the door. The defendant and Calvin Butler were under the guise that they were looking for a particular person or house. When Mr. King responded to the knock at the door, the defendant and his associate or accomplice, Calvin Butler, forced their way into the home. Mr. King was forced to lay down on the den floor in front of the television and was shot through the top of the head with a nine millimeter pistol. According to the autopsy reports and the testimony of Dr. Parades, the forensic medical examiner, the bullet entered the top of the head, passed through the brain, then exited the throat and neck area.
“The defendant then escorted Mrs. King to the kitchen area in search of her purse and money and shot Mrs. King in the top of the left side of the head.
“Both Mr. and Mrs. King were shot with a 9mm pistol at close range one time into the head.
“The defendant and his accomplice or associate, Calvin Butler, took or stole Mr. King’s wallet, a .357 revolver, a 30/30 rifle, Mrs. King’s purse and contents, a toolbox and a safe which contained several hundred dollars during the course of the burglary, robbery and double murder.”

(C.R. 63-64.)

The State’s evidence also showed that the police investigation focused on Wim-berly after Mary Spivey was murdered in June 1997 in Dale County and Wimberly was arrested and charged with her murder. Forensic testing of the bullets that killed Spivey matched the bullets that killed the Kings. Calvin Butler, Wimberly’s codefendant in the Dale County murders, pleaded guilty to five counts of capital murder for his involvement in the murders. Butler testified at Wimberly’s trial that Wimberly shot and killed both Max King and Johneen King.

Roper v. Simmons

The record shows that Wimberly was born on September 6, 1979, and that the Kings were murdered on January 26, 1997. Wimberly was 17 years of age at the time of the murders. The United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), held that it was unconstitutional to execute an offender who was under the age of 18 when he committed the offense. This decision abrogated that court’s earlier decision in Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), which upheld the execution of offenders who were over the age of 16 when the offense was committed. The United States Supreme Court’s decision in Roper applies to Wimberly because his case was pending on direct appeal when the decision in Roper was released. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Because Wimberly was under the age of 18 when he committed the murders, his sentence of death is due to be set aside. This case must be remanded for the Dale Circuit Court to set aside Wimberly’s death sentence and to sentence him to the only other available sentence — life in the penitentiary without the possibility of parole. § 13A-5-45(a), Ala.Code 1975.

This Court is authorized to search the record for plain error only in those cases in which the defendant has been sentenced to death. See Rule 45A, Ala.R.App.P. Because Wimberly is to be resentenced to life imprisonment without the possibility of parole, we do not apply the plain-error standard of review when reviewing this case. Therefore, any issues that we address on appeal must have been raised in the circuit court and presented in Wimberly’s brief to this Court. “We have repeatedly stated that this court has appellate jurisdiction only and cannot consider matters on appeal that have not first been presented to the trial court for its determination.” Samuels v. Alabama Bd. of Pardons & Paroles, 687 So.2d 1287, 1290 (Ala.Crim.App.1996).

I.

Wimberly argues that the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. Specifically, Wimberly argues that the trial court erred in finding that he failed to present a prima facie case of racial discrimination.

The State argues that the trial court’s finding that no prima facie case of discrimination had been established was proper because to establish a prima facie case the defense relied solely on the number of strikes used to remove black venire-members. We agree with the State.

The record shows that the State had 27 peremptory strikes and that it used 7 of those strikes to remove black venire-members. Wimberly made the following Batson objection at trial:

“[Defense counsel]: Let the record show that we are in the Judge’s chambers and the prosecutor and myself just got through striking the jury. The jury has not been impaneled or sworn in. I am making a motion pursuant to Batson v. Kentucky, and Ex parte Thomas, [659 So.2d 3 (Ala.1994)], an Aabama Supreme Court case.
“Let the record show that the defendant is a'black man, that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race, specifically there were nine blacks on the venire and the prosecutor struck seven of them.
“Also, peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. The prosecutor has failed to elicit from the venire during voir dire any race-neutral reasons for striking the black veniremen, which raises an inference that the prosecutor used peremptory challenges to exclude or strike black veniremen from the petite jury on account of their race.
“The Court: Okay.
“[Prosecutor]: [Defense counsel], you may have just misstated this, but—
“The Court: Yes, but he read from the old transcript.
“[Prosecutor]: Well, its true that there were nine blacks, but four of them are still on the jury. You said that seven were struck by the State.”

(R. 217-18.)

“The party claiming a Batson violation must first establish a prima facie case of discrimination before the other side is required to state its reasons for its peremptory strikes.” Woods v. State, 845 So.2d 843, 844 (Ala.Crim.App.2002). As this Court stated in McElemore v. State, 798 So.2d 693, 696 (Ala.Crim.App.2000):

“Procedurally, the party alleging racial discrimination in the use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). ‘ “[I]t is important that the defendant come forward with facts, not just numbers alone, when asking the [trial] court to find a prima facie case” ’ of racial discrimination. Mitchell v. State, 579 So.2d 45, 48 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992), quoting United States v. Moore, 895 F.2d 484, 485 (8th Cir.1990).”

Clearly, Wimberly failed to establish a pri-ma facie case of racial discrimination because he relied solely on the number of blacks that had been struck by the State. The circuit court’s ruling was not erroneous.

II.

Wimberly argues that the trial court erred in allowing the State to introduce evidence that the same gun that killed the Kings was the gun that was used to kill Mary Spivey in Houston County in June 1997. He contends that evidence of Spivey’s murder was prejudicial and did not fit within any exception to the exclusionary rule. He specifically argues that the evidence was not admissible under the identity exception.

In Wimberly v. State, [Ms. CR-99-1241, April 29, 2005] - So.2d - (Ala.Crim.App.2005), Wimberly’s appeal from his conviction for capital murder arising out of Spivey’s murder, we held that evidence of the murders of the Kings was admissible under the common plan, design, scheme, system or pattern exception to the general exclusionary rule. We stated:

“[E]vidence of the [Kings’] murders was admissible under the exception to the general exclusionary rule allowing such evidence if it shows a common plan, design, scheme, system, or pattern. As stated in [C. Gamble,] McElroy’s Alabama Evidence:
“‘Evidence of the accused’s commission of another crime or act is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime or act were committed in keeping with or pursuant to a single plan, design, pattern, scheme or system. This rule is applicable whether such plan, design, pattern, scheme or system is narrow and specific in scope or is measurably broad and general in scope. The majority of decisions speak of this as the plan or scheme exception. Others, however, refer to it as proving a system or pattern. Dean McCormick spoke of it as justifying the admission of collateral crimes or acts when offered to prove “the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part.”
“ ‘The present purpose differs from knowledge or intent in several respects. First, the plan, design, scheme or pattern is not an element of the crime charged and, consequently is always material or of consequence in the case. Such ever-present materiality causes the application of the exception to focus upon whether the other acts do indeed have a tendency to show a plan or scheme. A second difference lies in the fact that a single collateral crime or act could be sufficient to show knowledge or intent but, in contrast, it generally takes more than a single act to form a plan or scheme. Last, a greater degree of similarity between the charged crime and the collateral act is required when the latter is offered to prove plan or scheme rather than intent.’
“McElroy’s Alabama Evidence § 69.01(6) [5th ed. 1996.)] (footnotes omitted).
“Here, there were similarities between the murders. As this Court noted in our opinion reversing Wimberly’s convictions for the [Kings’] murders:
“ ‘Six months later [after the Kings’ murders], another person living near Dothan, Alabama, was murdered and her store and home, which was in the back of the store, was burglarized; the killers used the identical modus operandi as that used in the King murders.’
“Wimberly v. State, 759 So.2d 568, 569 (Ala.Crim.App.1999), cert. denied, 759 So.2d 574 (Ala.2000). Specifically, all three murders were residential robbery/murders, two perpetrators were involved in each case, the same weapon was used in all three murders, all the victims were shot in the head, a cash register was taken during the Houston County murder and a safe was taken in the [Kings’] murders, and Wimberly’s fingerprints were found at each crime scene. The circuit court correctly allowed evidence of the Dale County murders to be introduced.”

— So.2d at -. Here, evidence of Spi-vey’s murder was likewise admissible in Wimberly’s Dale County trial for the murder of the Kings for the reasons that were detailed in our opinion in Wimberly v. State, [Ms. CR-99-1241, April 29, 2005] - So.2d -(Ala.Crim.App.2005).

For the reasons stated above, this case is remanded for the Dale Circuit Court to set aside Wimberly’s sentence of death and to resentence Wimberly to life imprisonment without the possibility of parole.

AFFIRMED AS TO CONVICTION; REMANDED WITH INSTRUCTIONS AS TO SENTENCE.

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

On Return to Remand

McMILLAN, Presiding Judge.

The appellant, Shaber Chamond Wim-berly, was convicted of five counts of capital murder and was sentenced to death. Wimberly appealed. We remanded this case to the circuit court for that court to set aside Wimberly’s death sentence because Wimberly was 17 years of age when he committed the murders. See Wimberly v. State, 931 So.2d 60 (Ala.Crim.App.2005), relying on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

The circuit court has complied with our instructions and has set aside Wimberly’s sentence of death and sentenced Wimberly to the only other available sentence — life imprisonment without the possibility of parole. See § 13A-5-45(a), Ala.Code 1975. In our earlier opinion we addressed the other issues raised on direct appeal, and we affirmed Wimberly’s conviction. Wim-berly’s sentence of life imprisonment without the possibility of parole is now affirmed.

AFFIRMED AS TO SENTENCE.

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

      . This is an appeal from Wimberly's second trial and conviction for murdering the Kings. His first conviction was reversed because of the erroneous admission at trial of his statement to police. See Wimberly v. State, 759 So.2d 568 (Ala.Crim.App.1999).

      . Wimberly was convicted of capital murder for killing Spivey during the course of a robbery and a burglary. He was sentenced to death. We recently remanded that case for the Houston Circuit Court to set aside Wim-berly's sentence of death because he was 17 years old when he killed Spivey. See Wimberly v. State, [Ms. CR-99-1241, April 29, 2005] - So.2d - (Ala.Crim.App.2005).

      . Because Wimberly's death sentence must be vacated, any questions concerning the validity of the death penalty are rendered moot and will not be addressed in this opinion.


author: COBB, Judge.

text:
    Matthew Wayne TUBBS v. STATE.
    CR-04-1213.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.

      Matthew Tubbs, pro se.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   On Application for Rehearing

COBB, Judge.

The opinion of June 24, 2005, is withdrawn and the following substituted therefor.

Matthew Wayne Tubbs was convicted in Jefferson County Circuit Court on August 31, 1999, of first-degree robbery and was sentenced, as a habitual offender with three prior convictions, to life imprisonment without parole. This Court affirmed the conviction and sentence in an unpublished memorandum. Tubbs v. State, (No. CR-98-2409, January 28, 2000), 805 So.2d 790 (Ala.Crim.App.2000)(table). The certificate of judgment was issued on June 30, 2000. See, Ex parte Tubbs, 787 So.2d 728 (Ala.2000)(table). Tubbs has filed two previous unsuccessful Rule 32, Ala. R.Crim. P., challenges to his conviction. The instant petition was filed on February 17, 2005.

Tubbs raised one issue in his present Rule 32, Ala. R.Crim. P., petition: whether the trial court lacked jurisdiction to impose sentence because Tubbs was without counsel at sentencing. In support of this claim Tubbs asserts that the record does not affirmatively show that his attorney was present at sentencing because the case action summary sheet does not reflect his attorney’s presence. The circuit court summarily dismissed the petition before the State responded.

Tubbs appeals, arguing that summary dismissal was error because his claim entitled him to relief.

“Rule 32.7(d), Ala. R.Crim. P., permits the trial court to dismiss the petition ‘[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.’ ”

Patty v. State, 652 So.2d 337, 338-39 (Ala.Crim.App.1994).

“ ‘ “Where a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition.... ” Bishop v. State, 608 So.2d 345 (Ala.1992) (quoting Bishop v. State, 592 So.2d 664, 667 (Ala.Crim.App.1991) (Bowen, J., dissenting)).’ Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992).”

Id. at 338.

Tubbs cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), in which the United States Supreme Court held that a silent record will not support a presumption of representation by counsel. Id. at 114-115, 88 S.Ct. 258.

Burgett is distinguishable from Tubbs’s case in that the record in Burgett revealed that Burgett was not represented by counsel at the sentencing stage, and it was silent as to whether he had waived his right to counsel during this stage of the trial. In Tubbs’s case, the ease action summary sheet reflects that attorney Timothy A. Hughes was initially appointed to represent Tubbs and that Hughes subsequently withdrew and the trial court appointed Charles Salvagio to represent Tubbs. (R. 7-8.)

This Court has held:

“There does not appear to be any law which requires that the name of the attorney appear at any particular place in the record so long as it properly appears that the defendant on trial was represented by an attorney.”

Minor v. State, 437 So.2d 651, 656-57 (Ala.Crim.App.1983).

Although Tubbs argues that subsequent entries on the case action summary sheet do not affirmatively reflect that he was represented or accompanied by counsel when appearing in court for sentencing, § 13A-5-10.1(e), Ala.Code 1975, provides that where a court record “indicates that the defendant was represented by an attorney, it is presumed that the attorney was present in court with the defendant at all critical stages of the proceeding.” Thus, by merely pleading that the case action summary sheet lacked specific affirmations of counsel’s presence at the sentencing phase, Tubbs has failed to meet his burden of pleading facts that if true would entitle him to relief. Thus, Tubbs’s pleadings fail to satisfy the burden-of-pleading requirement of Rule 32.3, Ala. R.Crim. P.

Moreover, in addition to the procedural bar, there is no merit to Tubbs’s claim. The record in Tubbs’s direct appeal reflects that Tubbs’s counsel, Charles Salvagio, was present at sentencing. Thus, there is no merit to this claim.

Because Tubbs’s Rule 32 petition was insufficiently pleaded and meritless, the trial court did not abuse its discretion by summarily dismissing the petition. For the reasons stated above, the trial court properly denied Tubbs’s petition. Accordingly, the judgment of the trial court is affirmed.

We note that Tubbs’s verification under penalty of perjury that the claims in his petition were true was, in fact, blatantly false. Inmates who file false claims in their postconviction petitions waste the resources of the district attorneys’ offices that must respond to them; the circuit courts that must review and dispose of them; the attorney general’s office, which must answer any appeal filed; and the appellate courts that must review them. Inmates filing blatantly false claims are subject to prosecution for perjury. See, § 13A-10-101, Ala.Code 1975.

OPINION OF JUNE 24, 2005, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED.

McMILLAN, PH., and BASCHAB, SHAW, and WISE, JJ., concur.

      . At times Tubbs’s argument appears to be that he is entitled to relief because the circuit court’s case action summary sheet fails to reflect that counsel was present at sentencing. To any extent that this is meant to be an independent claim and not merely support for his claim that he was without counsel at sentencing, we note that it is a nonjurisdictional claim subject to the procedural bars found in Rule 32, Ala. R.Crim. P. Because this claim is not jurisdictional, it is precluded by Rule 32.2(b), Ala. R.Crim. P., because there has been no assertion establishing “good cause” for failing to raise the claim in Tubbs's first petition; by Rule 32.2(c), Ala. R.Crim. P., because Tubbs’s petition was filed outside the limitations period; and by Rules 32.2(a)(3) and (5), Ala. R.Crim. P., because the claim could have been, but was not, raised at trial and on direct appeal.

      . This Court may take judicial notice of its own records. Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987).


author: PER CURIAM. SHAW, Judge,

text:
    R.S.M. v. STATE of Alabama.
    CR-04-1609.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.

      W. Donald Bolton, Jr., Foley; and W. Gregory Hughes, Mobile, for appellant.
    Troy King, atty. gen., and Kristi L. Dea-son Hagood, asst. atty. gen., for appellee.
   PER CURIAM.

On August 4, 2004, the appellant, R.S.M., pleaded guilty in the Baldwin Juvenile Court to contributing to the delinquency of a minor, a violation of § 12-15-13, Ala.Code 1975. He was sentenced to one year’s imprisonment; the sentence was split, and he was ordered to serve 30 days in confinement followed by 12 months on probation. R.S.M. attempted to appeal his conviction to this Court; however, this Court determined that the record was inadequate for an appeal, see Rule 28(B), Ala.R.Juv.P., and by order dated December 13, 2004, transferred the case to the Baldwin Circuit Court for a trial de novo. (Case no. CR-03-1962.) On April 18, 2005, R.S.M. pleaded guilty in the Baldwin Circuit Court to contributing to the delinquency of a minor. He was sentenced to one year’s imprisonment; the sentence was split, and he was ordered to serve 30 days in confinement followed by 12 months on probation. Before entering his plea in the circuit court, R.S.M. expressly reserved the right to appeal the circuit court’s denial of his motion to dismiss the charge against him on the ground that the juvenile court, and thus the circuit court in the appeal for a trial de novo, lacked jurisdiction to accept his plea.

I.

R.S.M. first contends that the juvenile court lacked jurisdiction to accept his plea to contributing to the delinquency of a minor because, he says, the State did not follow the procedures for initiation of juvenile cases set out in § 12-15-50, Ala.Code 1975, and Rule 12, Ala.R.Juv.P.

Section 12-15-50, Ala.Code 1975, provides:

“Cases before the court shall be initiated by the filing of a petition by the intake officer who shall receive verified complaints and proceed thereon pursuant to rules of procedure adopted by the Supreme Court.”

Rule 12, Ala.R.Juv.P., provides:

“(A) Any person or agency having knowledge of the facts may make a complaint to the intake office; the complaint shall allege facts sufficient to establish the jurisdiction of the court and the child’s delinquency, dependency, or need of supervision. A complaint is made when it is filed with the intake office, which shall immediately note thereon the date and time of filing.
“(B) When a complaint is made, the intake office shall conduct a preliminary inquiry to determine whether the child is within the jurisdiction of the court and whether the best interests of the child or of the public require that a petition be filed.
“(C) If it appears from the preliminary inquiry that the child is within the jurisdiction of the court, the intake office shall either:
“(1) Utilize the informal adjustment process provided by Rule 15; or
“(2) File a petition if judicial action appears necessary.
“(D) The filing of a petition shall occur within 14 days of receipt of the complaint, except as provided in Rule 15 or when a child has been detained.
“(E) In cases of the violation of a law or ordinance relating to the operation of a motor vehicle by a child under the age of 16 and in the case of a child charged pursuant to § 32-5A-191, Ala.Code 1975, the issuance of a traffic citation or summons shall be sufficient to invoke the jurisdiction of the court.”'

(Emphasis added.)

As the State correctly points out in its brief to this Court, § 12-15-50 and Rule 12 specify how to initiate proceedings against a minor in juvenile court; they do not, however, specify how to initiate proceedings against an adult for the misdemeanor offense of contributing to the delinquency of a minor. Thus, those provisions are inapplicable to this case. Rather, § 12-15-13, Ala.Code 1975, which defines the offense of contributing to the delinquency of a minor and, uniquely, places jurisdiction over such offense, even if committed by an adult, in the juvenile court, sets forth the procedure for initiating proceedings against an adult. Section 12-15-13 provides:

“(a) It shall be unlawful for any parent, guardian or other person to willfully aid, encourage or cause any child to become or remain delinquent, dependent or in need of supervision or by words, acts, threats, commands or persuasions, to induce or endeavor to induce, aid or encourage any child to do or perform any act or to follow any course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision or by the neglect of any lawful duty or in any other manner contribute to the delinquency, dependency or need of supervision of a child. The employment of any child in violation of any of the provisions of the child labor law, or permitting, conniving at, aiding or abetting such employment shall be held to be encouraging, causing and contributing to the delinquency, dependency or need of supervision of such child. Failure on the part of any parent, guardian or other person having custody of the child to cause such child to attend school as required by the compulsory attendance law shall be held to be encouraging, causing and contributing to the delinquency, dependency or need of supervision of such child.
“(b) Whenever, in the course of any proceedings under this chapter or when, by affidavit as provided in this subsection, it shall appear to the juvenile court that a parent, guardian or other person having custody, control or supervision of a child or any other person not standing in any such relation to such child has aided, encouraged or caused such child to become delinquent, dependent or in need of supervision, as defined in this chapter, or has by words, act or omission contributed thereto or has, by threats, commands or persuasion, induced or endeavored to induce, aided or encouraged such child to do or perform any act or to follow any course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision, the court shall, for the protection of such child from such influences, have jurisdiction in such matters, as provided in this section. The court shall cause such parent, guardian or other person to be brought before it upon either summons or a warrant, affidavit of probable cause having first been made.
“(c) Whoever violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500.00 or sentenced to hard labor for the county for a period not to exceed 12 months or both.
“(d) Upon conviction, the court shall have the power to suspend any sentence, remit any fine or place such person on probation under such orders, directives or conditions for his discipline and supervision as the court deems fit.”

(Emphasis added.)

In this case, the State followed the procedure set forth in § 12-15-13. Scott Bid-well, a detective with the Daphne Police Department, submitted an affidavit/complaint of probable cause and obtained an arrest warrant (C. 2); the juvenile court then issued a summons for R.S.M. to appear in court. (C. 13.) Therefore, R.S.M.’s argument in this regard is merit-less.

II.

R.S.M. also contends that the juvenile court lacked jurisdiction to accept his guilty plea because, he says, the affidavit/complaint submitted in support of the arrest warrant did not state an offense. Specifically, he argues that the affidavit/complaint failed to allege the age of the alleged victim or that the victim was a minor, which he says is an essential element of the offense of contributing to the delinquency of a minor. We agree.

Initially, we note that the arrest warrant and its corresponding affidaviVcomplaint are a single document, entitled “Warrant and Affidavit,” consisting of two sections— the top section contains the affidavit/complaint made under oath by Det. Bidwell, and the bottom section is the actual warrant of arrest. (C. 2.) The affidavit/complaint portion of the document states:

“Before me the undersigned Judge/Clerk/Magistrate of the District Court of Baldwin County, Alabama, personally appeared Det. Scott Bidwell, Daphne [Police Department] who being first duly sworn deposes and says that he/she has probable cause for believing, and does believe that within twelve months within said county on or about (date) April 5, 2004, one [R.S.M.] did go into his stepdaughter’s bedroom in his underwear and proceeded to get into bed with her[,] he told her he was going to show her how to please a man and started to rub his hands over her body, in violation of § 12-15-13 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 2.) The warrant portion of the document, entitled ‘Warrant of Arrest,” states, in pertinent part:

“To any lawful officer of the State of Alabama:
“You are hereby commanded to arrest [R.S.M.] and bring him/her before the District Court of Baldwin County, to answer the State of Alabama on a charge of Contributing to the Delinquency of a Minor, and have with you then this writ with your return thereon.”

(C. 2.)

Although both are included in a single document, in reviewing the sufficiency of the accusation in this case, we may review only the affidavit/complaint, and not the actual warrant of arrest. In Ross v. State, 529 So.2d 1074 (Ala.Crim.App.1988), this Court explained:

“ ‘It is well settled, at common law and from the earliest colonial days in this country, that a prosecution for a crime must be preceded by a formal accusation. Thus, a legally effective criminal prosecution requires that a formal charge be openly made against the accused by an indictment or presentment of a ghand jury, or by an information of a prosecuting attorney.’

“2 Wharton’s Criminal Procedure § 225 (C. Torcía 12th ed.1974).

“ ‘Jurisdiction of the offense and of the person must concur to authorize a court of competent jurisdiction to proceed to final judgment in a criminal prosecution. [Citations omitted.]
“ ‘To this end, a formal accusation sufficient to apprise the defendant of the nature and cause of the accusation is a prerequisite to jurisdiction of the offense. Const.1901, § 6; Butler v. State, 130 Ala. 127, 30 South. 338; Miles v. State, 94 Ala. 106, 11 South. 403; 12 Cyc. 221 (VI, H).
“ ‘Irregularities in obtaining jurisdiction of the person may be waived, but a formal accusation by indictment, or information, or complaint supported by oath is essential to complete jurisdiction, and cannot be waived. 12 Cyc. 221; Butler v. State, supra; Johnson v. State, 82 Ala. 29, 2 South. 466.’
“Sherrod v. State, 14 Ala.App. 57, 59-60, 71 So. 76, 78, rev’d on other ground, 197 Ala. 286, 72 So. 540 (1916).”

529 So.2d at 1077-78 (emphasis added). See also Ex parte Looney, 797 So.2d 427 (Ala.2001) (holding that district attorney’s failure to make an information under oath rendered the information defective and deprived the trial court of jurisdiction).

Although § 12 — 15—13(b), Ala.Code 1975, provides that a warrant or summons supported by an affidavit of probable cause is the proper way to initiate criminal proceedings for the offense of contributing to the delinquency of a minor, because all criminal proceedings must be commenced by a formal accusation made under oath, see Rules 2.1 and 2.3, Ala.R.Crim.P., it is the affidavit/complaint, which is, made under oath, not the warrant or summons, neither of which are made under, oath, that confers jurisdiction on the juvenile court on a charge of contributing to the delinquency of a minor. Indeed, § 12-15-13(b) clearly states that “when, by affidavit as provided in the subsection, it shall appear [that a violation of § 12-15-13(a) has occurred], the court shall ... have jurisdiction in such matters.... ” (Emphasis added.) Therefore, when reviewing the sufficiency of the charging instrument in this case, we consider only the affidavit/complaint of Det. Bidwell and not the warrant of arrest.

Rule 13.1(c), Ala.R.Crim.P., defines a complaint as “a written statement made upon oath before a judge, magistrate, or official authorized by law to issue warrants of arrest, setting forth essential facts constituting an offense and alleging that the defendant committed the offense.” See also Rule 2.3, Ala.R.Crim.P. It is well settled that a charging instrument “1 “must clearly inform the accused of the offense with which he is being charged and must do so in language that is readily understood by the ordinary person.” ’ ” Vaughn v. State, 880 So.2d 1178, 1192 (Ala.Crim.App.2003), quoting Dobyne v. State, 805 So.2d 733, 750 (Ala.Crim.App.2000), aff'd, 805 So.2d 763 (Ala.2001), quoting in turn Thatch v. State, 432 So.2d 8, 10 (Ala.Crim.App.1983). Moreover, “ *[i]f the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense.’ ” Barbee v. State, 417 So.2d 611, 612-13 (Ala.Crim.App.1982), quoting Holt v. State, 86 Ala. 599, 600, 5 So. 793, 793 (1888). “An indictment must include all of the essential elements that constitute the offense, and it must not leave any element open to inference.” Lanier v. State, 733 So.2d 931, 936 (Ala.Crim.App.1998). “A criminal complaint which fails to include an essential element of the statute cannot support a conviction,” Driskill v. State, 376 So.2d 678, 679 (Ala.1979), and the “[fjailure to allege an essential element of the charged offense is -a jurisdictional defect.” Ex parte Lewis, 811 So.2d 485, 487 (Ala.2001).

“Although the law does not compel a ‘ritual of words’ in an indictment, ‘(t)he omission of an element of the crime, however, is not a mere formality that may be waived.’ United States v. Purvis, 580 F.2d 853, 857, 858, rehearing denied, 585 F.2d 520 (5th Cir.1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1229, 59 L.Ed.2d 463 (1979). ‘An indictment that fails to allege each material element of an offense fails to charge that offense.’ United States v. London, 550 F.2d 206, 211 (5th Cir.1977).”

Barbee, 417 So.2d at 613.

The first sentence in § 12-15-13(a), Ala. Code 1975, provides four alternative methods of committing the offense of contributing to the delinquency of a minor: (1) “willfully aiding], encouraging] or causing] any child to become or remain delinquent, dependent or in need of supervision”; (2) using “words, acts, threats, commands or persuasions, to induce or endeavor to induce, aid or encourage any child to do or perform any act or to follow any course of conduct which would cause or manifestly tend to cause such child to become or remain delinquent, dependent or in need of supervision”; (3) “neglecting] ... any lawful duty” thereby contributing to the delinquency, dependency or need of supervision of the child; and (4) “in any other manner contributing] to the delinquency, dependency or need of supervision of a child.” See Senf v. State, 622 So.2d 435 (Ala.Crim.App.1993). “Child” is defined in § 12-15-1(3), Ala. Code 1975, as “[a]n individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual’s 18th birthday.” Based on the prosecutor’s factual basis for R.S.M.’s plea, it is clear that the State was proceeding against R.S.M. based on the first sentence in § 12-15-13; however, it is not clear whether the prosecutor was proceeding under alternative one or two, as set forth above.

Regardless of which alternative the prosecutor was proceeding under, as R.S.M. correctly argues the affidavit/complaint in this case did not allege the age of the victim, R.S.M.’s stepdaughter, A.R., or allege that A.R. was a minor, an essential statutory element of the offense of contributing to the delinquency of a minor under any of the alternatives. Although we do not doubt that R.S.M. knew the age of his own stepdaughter, the fact that R.S.M. knew the age of A.R. does not, as the State argues, cure the defect in the affidavit/complaint. As noted above, all statutory elements of an offense must be charged in the formal accusation and no element may be left to inference.

In addition, although not argued by R.S.M., we also point out that while the affidavit/complaint alleged specific acts and words on the part of R.S.M. — getting into bed with A.R. while he was clothed only in his underwear, rubbing his hands over A.R.’s body, and making certain statements to A.R. — the affidavh/complaint did not allege, in the words of the statute or in words equivalent in meaning, that R.S.M. wilfully aided, encouraged, or caused A.R. to become or remain delinquent, dependent, or in need of supervision (as required under the first alternative set out above), or that R.S.M.’s acts or words .induced, aided, or encouraged A.R. to do or perform any act or to follow any course of conduct that would cause or manifestly tend to cause A.R. to become or remain delinquent, dependent, or in need of supervision (as required under the second alternative set out above).

Therefore, the affidavit/complaint in this case failed to allege all of the essential elements of the offense of contributing to the delinquency of a minor. Indeed, absent the citation to § 12-15-13 in the affidavit/complaint and the name of the offense listed on the arrest warrant, it would be impossible to determine what offense was being charged against R.S.M. However, as noted above, the arrest warrant cannot be considered in determining the sufficiency of the accusation in this case because it was not made under oath as required for a formal accusation, and it is well settled that “ ‘a mere citation to the applicable statute does not give the defendant notice of the nature of the offense.’ ” Smith v. State, 111 So.2d 322, 323 (Ala.Crim.App.2000), quoting Ex parte Harper, 594 So.2d 1181, 1192 (Ala.1991). As this Court explained in Barbee:

“The fact that the indictment refers to its statutory source cannot save it from being fatally deficient. The rule is that ‘the indictment must contain all the essentials to constitute the offense, explicitly charged, and that they must not be left to inference.’ State v. Seay, 3 Stew. 123, 131 (1830). The indictment cannot be aided by intendment, Poore v. State, 11 Ala.App. 143, 82 So. 627 (1919), and ‘nothing is to be left to implication or intendment, or to conclusion.’ Mastoras v. State, 28 Ala.App. 123, 126, 180 So. 113, cert. denied, 235 Ala. 519, 180 So. 115 (1938). A court is ‘without authority to add to, or take from, any of the material averments in the indictment, which speaks for itself and is conclusive.’ Crump v. State, 30 Ala.App. 241, 242, 4 So.2d 188 (1941).
“A reference to a statutory source in an indictment is a ‘matter of convenience and not of substance.’ Pate v. State, 45 Ala.App. 164, 166, 227 So.2d 583 (1969). ‘The statement that the facts violate a certain section of the statute is nothing more than the pleader’s conclusion, which may or may not be correct, and neither adds nor detracts from the allegation.’ Harper v. United States, 27 F.2d 77, 79 ([8]th Cir.1928); Allen v. State, 33 Ala.App. 70, 73, 30 So.2d 479 (1947). Reference to the statute is treated as surplusage. Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 (1974).
“Upon these authorities we conclude that a reference in an indictment to the statute defining the offense cannot be considered for the purpose of supplying an allegation of criminal intent which is an essential element of the offense and has been omitted from the indictment.”

417 So.2d at 613-14.

The affidavit/complaint in this case failed to charge the offense of contributing to the delinquency of a minor and was therefore void. Because the affidavit/complaint was void, the juvenile court, and thus the circuit court on appeal for a trial de novo, did not have jurisdiction to accept R.S.M.’s plea, and R.S.M.’s conviction and sentence must be reversed. We note, however, that the State may recharge R.S.M. for whatever offense, misdemeanor or felony, it believes is proper under the facts in this case. See, e.g., Payne v. State, 915 So.2d 1179 (Ala.Crim.App.2005), and Cogman v. State, 870 So.2d 762 (Ala.Crim.App.2003).

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. SHAW, J., concurs specially, with opinion, which WISE, J„ joins.

SHAW, Judge,

concurring specially.

Because it appears to me that the per curiam opinion correctly states and applies existing Alabama law with respect to the sufficiency of a criminal complaint, I must concur in reversing the circuit court’s judgment. However, common sense tells me that R.S.M. could readily discern from Detective Bidwell’s affidavit the nature of the charge against him. As the State points out, R.S.M. was clearly aware that his stepdaughter was a minor and that he was charged with violating § 12-15-13, Ala.Code 1975, by having improper sexual contact with her. I do not disagree that the affidavit was poorly written; however, if I had the luxury of writing an opinion in this case on a clean slate, which, of course, I do not have, I would place less emphasis on the precise wording of the affidavit and more on the potential prejudice to R.S.M.’s substantial rights. See Rule 13.5(c)(2), Ala. R.Crim. P. Because R.S.M. was aware that his stepdaughter was a minor, and because the affidavit expressly identified the statute under which R.S.M. was charged, I do not see how R.S.M. was prejudiced, i.e., I do not believe that the affidavit was so defective as to leave him unaware of the nature of the charge against him. See generally the concurring opinion of. Justice Houston and the dissenting opinion of Justice See in Ex parte Lewis, 811 So.2d 485, 489-90 (Ala.2001).

WISE, J., concurs.

      . Section 12-15-13 is actually entitled "Causing, etc., of delinquency, dependency or need of supervision of children.” For simplicity, we refer throughout this opinion to this offense as "contributing to the delinquency of a minor.”

      . To the extent that R.S.M. argues in his brief that the arrest warrant was obtained from the district court and not the juvenile court, we note that, although the preprinted warrant form indicates that it was issued in the district court, the warrant contains a juvenile court case number; therefore, it is clear that the district court was sitting as the juvenile court in this case. See § 12-15-2, Ala.Code 1975.

      . The prosecutor stated: “[W]e would expect to show that [R.S.M.] did contribute to the delinquency, dependency, or causing a need of supervision [sic] through his words and acts to [A.R.], his stepdaughter, through acts and words of a sexual nature, causing her to be dependent under the definition of the law” in § 12 — 15—l(10)f., Ala.Code 1975 (defining a dependent child as one ”[w]ho is in a condition or surroundings or is under such improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of the child”). (R. 29.) This statement could fall under either alternative one or two; however, it would not fall under alternative three or four.

      . Although the affidavit read "in violation of § 12-15-13 of the Code of Alabama” instead of "in violation of § 12-15-13(a),” only subsection (a) of § 12-15-13 defines the offense, and it does so in terms straightforward enough that even R.S.M. should have been able to understand that he was charged with causing the delinquency, dependency, or need for outside supervision of his stepdaughter by going into her bedroom clad only in his underwear and proceeding to get into bed with her, rubbing his hands over her body, and telling her he was going "to show her how to please a man.”


text:
    In re AMENDMENTS TO THE FLORIDA SMALL CLAIMS RULES (TWO YEAR CYCLE).
    No. SC05-146.
    Supreme Court of Florida.
    Dec. 15, 2005.
    As Revised on Denial of Rehearing May 11, 2006.
    Honorable Louis Howard Schiff, Chair, Deerfield Beach, Florida, Honorable Pauline Drayton, Past-Chair, Jacksonville, Florida, Small Claims Rules Committee, John F. Harkness, Jr., Executive Director, Madelon Horwich, Bar Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.
    Honorable Shawn Lee Briese, Chair, Supreme Court Commission on Alternative Dispute Resolution Rules and Policy, Day-tona Beach, FL, and Robert N. Clarke, Jr. of Ausley and McMullen, P.A., Past^Chair, Civil Procedure Rules Committee, Tallahassee, FL, for Opponent.
    Bruce J. Berman of McDermott, Will and Emery, LLP, Miami, FL, and Henry P. Trawick, Jr., Sarasota, FL, filing Comments.
   PER CURIAM.

We have for consideration the biennial report of proposed rule changes filed by the Small Claims Rules Committee (Committee), in accordance with Florida Rule of Judicial Administration 2.130(c)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Committee’s regular-cycle report proposes amendments to rules 7.080 (Service of Pleadings and Papers Other Than Statement of Claim), and 7.090 (Appearance; Defensive Pleadings; Trial Date), as well as the addition of new rule 7.175 (Motions for Costs and Attorneys’ Fees). The Committee also proposes amendments to forms 7.322 (Summons/Notice to Appear for Pretrial Conference), 7.340 (Final Judgment), and 7.343 (Fact Information Sheet),- and the addition of new forms 7.321 (Notice to Appear for Pretrial Conference/Mediation), 7.335 (Statement of Claim (For Return of Stolen Property)), and 7.350 (Corporate Authorization to Allow Employee to Represent Corporation at Any Stage of Lawsuit). As required by rule 2.130(c)(2), prior to submission to the Court, the proposed rule amendments were published in The Florida Bar News and on the internet website of The Florida Bar, and interested parties were invited to comment. Several comments were received by the Committee, but no changes were made to the proposals. After submission to the Court, the proposals were again published for comment, and several comments were received. After considering the comments and holding oral argument, we adopt a majority of the Committee’s proposals, with a limited number of exceptions and modifications as set out below.

AMENDMENTS

First, we decline to adopt the proposed amendment to rule 7.080(b), Service of Pleadings and Papers Other Than Statement of Claim. This proposed amendment would allow service of papers (except the initial claim and notice to appear) to be made by delivery to the clerk of court if the party’s address is not known. However, it fails to specify the consequence of such delivery. Neither the comments nor oral argument adequately resolved this uncertainty. Therefore, we decline to adopt this proposed rule change.

We also decline to adopt the proposed amendments to rule 7.090, Appearance; Defensive Pleadings; Trial Date. The proposed amendments to subdivisions (a) and (b) of rule 7.090 were proposed by the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (ADR Committee) in its comment filed with the Court. The Committee did not object to the suggested changes. The proposed amendment to subdivision (a) would have required, “Whoever appears for a party [at the pretrial conference] must have full authority to settle for all amounts from zero to the amount of the claim without further consultation.” The proposed amendment to subdivision (b) would have required that the summons/notice to appear specify that mediation may take place during the time scheduled for the pretrial conference. This proposal, if accepted, would conform the notice to appear to the proposed changes to subdivisions (a) and (f).

The proposed amendment to subdivision (f) would not only provide that “mediation may take place at pretrial conference,” it would also mandate that each party or their counsel have full authority to settle. And, of greatest concern, it would allow sanctions for failure to comply. These sanctions include costs, attorneys’ fees, entry of judgment, or dismissal. Among our concerns about this proposal is the impact it would have upon a party who must send counsel to such conferences on short notice without an adequate opportunity to fully prepare for settlement negotiations. Nonetheless, recognizing the importance of this effort at encouraging mediated settlement, we refer this proposed amendment back to the Committee for further consideration.

Next, we decline to adopt the Committee’s proposed amendments to form 7.322, Summons/Notice to Appear for Pretrial Conference. Having declined to adopt the proposed changes to rule 7.090, we also decline to adopt new form 7.321, Notice to Appear for Pretrial Conference/Mediation, as proposed by the ADR Committee, and agreed to by the Committee.

We adopt, as modified, new rule 7.175, Motions for Costs and Attorneys’ Fees, permitting motions for costs and attorneys’ fees if timely filed. In response to comments filed, we modify the language originally proposed by the Committee to reflect that a motion seeking costs or attorneys’ fees or both shall be served “no later than” thirty days after the judgment is filed. This change is consistent with changes to the Florida Rules of Civil Procedure which this Court has adopted in a separate opinion. In re Amendments to the Florida Rules of Civil Procedure, 917 So.2d 176 (Fla.2005).

We also adopt new form 7.335, Statement of Claim (For Return of Stolen Property). According to the report,

[t]he form is meant to allow for uniformity in the return of property that was stolen and then pawned, to be returned to the rightful owner even before the criminal case is disposed of. The committee believed that the rightful owner of the property should not be required to redeem his or her property by making any form of payment.

Form 7.340, Final Judgment, is amended, as proposed, to delete the reference to future interest rates. The amendment to the form is meant to put all parties on notice of the interest rate that should accrue on judgments.

New subdivision (b) is added to form 7.343, Fact Information Sheet. The new subdivision recognizes the distinction between a judgment entered against an individual and a judgment entered against a corporation.

Finally, we adopt new form 7.350, Corporate Authorization to Allow Employee to Represent Corporation at Any Stage of Lawsuit. This new form provides a mechanism for a corporation to authorize an individual to represent it in all trial proceedings. The form will provide written notice to all parties that the individual appearing at the pretrial and all subsequent proceedings has authority to act on behalf of the corporation.

We hereby adopt the amendments to the Florida Small Claims Rules as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments will become effective on January 1, 2006, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 7.175. MOTIONS FOR COSTS AND ATTORNEYS’ FEES

Any party seeking a judgment taxing costs or attorneys’ fees, or both, shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal. In the event of a default .judgment, no further motions are needed if costs or attorneys’ fees, or both, were sought in the statement of claim.

FORM 7.335. STATEMENT OF CLAIM (FOR RETURN OF STOLEN PROPERTY)

IN THE COUNTY COURT, IN AND

FOR_, COUNTY, FLORIDA

Plaintiff, CASE NO.:

vs.

Defendant/Pawnbroker.

STATEMENT OF CLAIM FOR RETURN OF PROPERTY

Plaintiff, _ sues defendant, _ and says:

1. This is an action for the return of stolen or misappropriated property pursuant to section 539.001, Florida Statutes.

2. Plaintiff is the owner of the following described property:

3.The above-described property was sto-

len or otherwise misappropriated from plaintiff on or about the _ day of _, 20.__ A copy of the law enforcement report outlining the theft/misappropriation is attached hereto and incorporated into this statement of claim.

4. The above-described property is currently in the possession of defendant and is located at a pawnshop as defined in section 539.001, Florida Statutes, the ad-dress_of_which is_

5. Plaintiff has complied with the procedural requirements of section 539.001, Florida Statutes. Specifically, plaintiff notified the pawnbroker of plaintiffs claim to the property:

by certified mail, return receipt requested, OR

_ in person evidenced by a signed receipt.

The notice contains a complete and accurate description of the purchased or pledged goods and was accompanied by a legible copy of the aforementioned police report regarding the theft or misappropriation of the property. No resolution between plaintiff and defendant pawnbroker could be reached within 10 days after the delivery of the notice.

WHEREFORE, the plaintiff demands judgment for the return of the property. Plaintiff further asks this court to award plaintiff the costs of this action, including reasonable attorneys’ fees.

Plaintiff (signature)

Name

Address

City, State, Zip code

Day telephone number

State of Florida

County of

The foregoing instrument was acknowledged before me on.(date)., by .. who is personally known to me or has produced . as identification and who .did/did not. take an oath.

WITNESS my hand and official seal, on .(date).

Notary Public, State of Florida

Note to Clerk of Court and to Sheriff: Pursuant to Section 539.001(15), filing fees and service fees shall be waived. Waiver does not require the filing of an affidavit of insolvency.

FORM 7.340. FINAL JUDGMENT

(CAPTION)

FINAL JUDGMENT . AGAINST (DEFENDANT(S)’S NAME)

It is adjudged that the plaintiff(s), ., recover from the defendants), ., the sum of $. on principal, $. as prejudgment interest, $.for attorneys’ fees, with costs of $., all of which shall bear interest at the rate of .... %for the- current-year and thereafter at the prevailing rate per year as provided for by Florida Statute, for all of which let execution issue.

ORDERED at ., Florida, on.(date).

County Court Judge

Copies furnished to:

PLAINTIFF(S)

DEFEND ANT(S)

Plaintiff(s)’s address:

Defendant(s)’s last known address and Social Security Number (if known):

(OPTIONAL ENFORCEMENT PARAGRAPH — TO BE INCLUDED UPON REQUEST PURSUANT TO RULE 7.221)

It is further ordered and adjudged that the defendant(s) shall complete Florida Small Claims Rules Form 7.343 (Fact Information Sheet) and return it to the plaintiffs attorney, or to the plaintiff if the plaintiff is not represented by an attorney, within 45 days from the date of this final judgment, unless the final judgment is satisfied or a motion for new trial or notice of appeal is filed.

Jurisdiction of this case is retained to enter further orders that are proper to compel the defendant(s) to complete form 7.343 and return it to the plaintiffs attorney,- or the plaintiff if the plaintiff is not represented by an attorney.

Committee Notes

1992 Amendment. The optional enforcement paragraph was added to facilitate discovery.

FORM 7.343. FACT INFORMATION SHEET

(a) For Individuals

(CAPTION)

      . In addition to the amendments discussed above, there are also several editorial and housekeeping amendments as reflected in the appendix.


author: PER CURIAM. BROWNING, J.

text:
    Craig CIESLA, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-4540.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2006.
    Rehearing Denied April 7, 2006.
    Pro se, for Appellant.
    Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WEBSTER, BROWNING and POLSTON, JJ. concur.

ON MOTION FOR REHEARING

BROWNING, J.

Appellant’s motion for rehearing is denied because his claims are moot in light of his acquittal on Count II.

DENIED.

WEBSTER and POLSTON, JJ., Concur.