source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Victor AYLER v. STATE of Alabama.
    CR-04-0868.
    Court of Criminal Appeals of Alabama.
    April 29, 2005.
    Victor D. Ayler, pro se.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Victor Ayler, appeals from the circuit court’s dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Aia.R.Crim.P., in which he attacked his 1982 guilty-plea convictions for two counts of robbery in the second degree and his resulting sentences of 10 years’ imprisonment for each conviction. No direct appeal was taken from these convictions.

On July 13, 2004, Ayler filed this, his first, Rule 32 petition. In his petition, he alleged that the trial court was without jurisdiction to render judgment and to impose sentence because, he said, he had been indicted for robbery in the first degree and the indictments failed to include an essential element for robbery in the second degree, the crime for which he was convicted. On September 27, 2004, the State filed a motion to dismiss the petition, alleging that Ayler’s petition both was precluded from appellate review and was without merit. On January 28, 2005, the trial court issued an order dismissing Ay-ler’s petition. This appeal followed.

On appeal, Ayler reasserts the allegation he presented in his petition to the trial court and also contends that the trial court erred in denying his motion for an eviden-tiary hearing.

Ayler’s original indictments charging him with robbery in the first degree are included in the record, but the amended indictments are not. (C. 29.) Nevertheless, the record clearly reveals that a count was added to each indictment with Ayler’s consent. (C. 2, 6.)

The Alabama Supreme Court has addressed this issue and stated:

“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained [the defendant’s] consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a)[, Ala.R.Crim.PJ That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment. See Murray v. State, [814 So.2d 1006 (Ala.Crim.App.2001) ]; Wingard v. State, [821 So.2d 240 (Ala.Crim.App.2001) ]; Green v. State, [619 So.2d 952 (Ala.Crim.App.1993) ]; and Ross v. State, [529 So.2d 1074 (Ala.Crim.App.1988) ].”

Ex parte Cole, 842 So.2d 605, 609 (Ala.2002).

Although the record reflects that each indictment was amended to add a second count charging Ayler with second-degree robbery, the question is not whether the amended indictments, i.e., those charging the added counts of second-degree robbery, included the fact that Ayler was aided in the robberies by another person but whether the first-degree-robbery charges themselves were amended to add the fact that Ayler was aided in the robberies by another person before the indictments were amended to add the second-degree-robbery counts. Therefore, we find it necessary to remand this cause to the trial court for that court to determine whether the first-degree-robbery charges were amended to add the fact that Ayler was aided in the robberies by another person before the indictments were amended to add the additional counts of second-degree robbery.

If the trial court determines that the first-degree-robbery charges were not amended to allege that Ayler was aided by another person in the commission of the robberies, then the trial court shall vacate Ayler’s convictions for second-degree robbery. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion.. The return to remand shall include the trial court’s specific, written findings of fact and, if applicable, a copy of the amended indictments, any additional filings by the parties and a transcript of any additional proceedings that may occur on remand.

REMANDED WITH DIRECTIONS.

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


text:
    Carlos CASTILLO v. STATE of Alabama.
    CR-04-0824.
    Court of Criminal Appeals of Alabama.
    May 27, 2005.

      Carlos Castillo, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Carlos Castillo, appeals from the circuit court’s dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his 1998 convictions for eight counts of capital murder, one count of attempted murder, and his resulting sentences of life imprisonment without parole for each of the capital-murder convictions and to life imprisonment for the attempted-murder conviction. On July 9, 1999, this Court affirmed Castillo’s convictions and sentences in an unpublished memorandum. Castillo v. State (No. CR-97-2218), 778 So.2d 869 (Ala.Crim.App.1999) (table). A certificate of judgment was issued on October 19, 1999.

On October 5, 2004, Castillo filed this, his first, Rule 32 petition. He alleged: (1) that he had been arraigned without counsel; (2) that he had not been tried on his “special pleas” nor had he withdrawn “these asserted defenses”; (3) that he had been tried and convicted for duplicate offenses in that he had been convicted of eight counts of capital murder and only three individuals had been killed. The State subsequently filed a motion to dismiss, arguing that Castillo’s petition was both precluded from review and without merit. On January 14, 2005, the trial court entered an order summarily dismissing Castillo’s petition. This appeal followed.

On appeal, Castillo reasserts the claims he made in his petition to the trial court.

I.

Castillo argues that his constitutional protection against double jeopardy was violated when he was tried and convicted of eight counts of capital murder arising out of the killing of three people. Castillo’s double-jeopardy claim is a jurisdictional claim that is not subject to the procedural bars of Rule 32.2, Ala. R.Crim.P. See Ex parte Robey, 920 So.2d 1069 (Ala.2004).

During the early morning hours of August 21, 1996, Castillo broke into the Eto-wah County home of Kenneth Holmes and his sister Belinda Holmes. He shot and killed Kenneth Holmes; Kenneth’s sister, Belinda Holmes; and Belinda’s five-year old son, Christian. In addition, Castillo shot and wounded David Pitts, who also lived at the Holmes residence. The Eto-wah County grand jury returned a 12-count indictment against Castillo. Counts one, two, and three charged Castillo with the capital offense of murder committed during the course of a robbery in the deaths of Kenneth Holmes, Belinda Holmes, and Christian Holmes, respectively. See § 13A-5-40(a)(2), Ala.Code 1975. Counts four and five charged Castillo with the capital offense of murder committed during the course of a burglary with respect to Kenneth Holmes. Count four charged Castillo with the murder of Kenneth Holmes during the commission of a burglary while armed with a deadly weapon; count five charged Castillo with the murder of Kenneth Holmes during the commission of a burglary that caused physical injury to David Pitts. See § 13A-5-40(a)(4), Ala.Code 1975. Counts six and seven charged Castillo with the capital offense of murder committed during the course of a burglary with respect to Belinda Holmes. Count six charged Castillo with the murder of Belinda Holmes during the commission of a burglary while armed with a deadly weapon; count seven charged Castillo with the murder of Belinda Holmes during the commission of a burglary that caused physical injury to David Pitts. Counts eight and nine charged Castillo with the capital offense of murder committed during the course of a burglary with respect to Christian Holmes. Count eight charged Castillo with the murder of Christian Holmes during the commission of a burglary while armed with a deadly weapon; count nine charged Castillo with the murder of Christian Holmes during the commission of a burglary that caused physical injury to David Pitts. Count ten charged Castillo with the capital offense of murdering Kenneth Holmes, Belinda Holmes, and Christian Holmes by one act or pursuant to one scheme or course of conduct. See § 13A-5 — 40(a)(10), Ala.Code 1975. Count eleven charged Castillo with the capital offense of murdering Christian Holmes, who was under 14 years of age. See § 13A-5-40(a)(15), Ala.Code 1975. Finally, count twelve charged Castillo with the attempted murder of David Pitts. See §§ 13A-4-2 and 13A-6-2, Ala.Code 1975. After the State rested its case-in-chief, the trial court dismissed counts one, two, and three of the indictment — the counts charging Castillo with the capital offense of robbery-homicide. The jury convicted Castillo of counts four through twelve.

Section 13A-7-5(a), Ala.Code' 1975, provides, in pertinent part, as follows:

“(a) A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:
“(1) Is armed with explosives or a deadly weapon; or
“(2) Causes physical injury to any person who is not a participant in the crime; or
“(3) Uses or threatens the immediate use of a dangerous instrument.”

Here, count four of the indictment alleged that, while committing burglary-murder (of Kenneth Holmes), Castillo “was armed with a deadly weapon.” Similarly, count five alleged that, while committing the burglary-murder (of Kenneth Holmes), Castillo “did cause physical injury to ... David Pitts, who was not a participant in the crime.” Counts six and seven of the indictment alleged similar burglary-murder counts, naming Belinda Holmes as the victim. Finally, counts eight and nine of the indictment alleged the same burglary-murder counts, naming Christian Holmes as the victim.

In Wynn v. State, 804 So.2d 1122 (Ala.Crim.App.2000), cert. denied, 804 So.2d 1152 (Ala.2001), this Court addressed a factually similar situation. There, the defendant was indicted and convicted of two counts of robbery-murder and two counts of burglary-murder. In Wynn, “Count III alleged that, while committing the burglary-murder, the appellant ‘did use or threaten the immediate use of a dangerous instrument,’ and Count IV alleged that, while committing the burglary-murder, the appellant ‘did cause physical injury to Denise Bliss.’ ” 804 So.2d at 1149. We held that the two counts allowed him to be convicted twice for the same offense, a violation of the Double Jeopardy Clause. This Court stated:

“Counts III and IV were simply alternative methods of proving the single offense of burglary-murder. We addressed a similar situation in Stewart v. State, 601 So.2d 491, 494-95 (Ala.Crim.App.1992), aff'd in part, rev’d in part on other grounds, 659 So.2d 122 (Ala.1993), aff'd, 730 So.2d 1246 (Ala.), cert. denied, 528 U.S. 846, 120 S.Ct. 119, 145 L.Ed.2d 101 (1999), and held:
“‘The six indictments show that the appellant was charged with four counts of intentional murder during the course of a burglary and with two counts of murder during the course of a kidnapping. In fact, the prosecutor alluded to the fact that the indictments were alternative ways of charging the appellant after the court’s dialogue above. The four indictments charging murder during the course of a burglary merely detailed alternative ways of proving the elements of burglary. The two indictments charging murder during the course of a kidnapping alleged alternative methods of establishing the crime of kidnapping. We realize that “the purpose of the [alternative] counts was not to charge two or more separate offenses, but to vary the description of one and the same offense based upon one and the same transaction.” Floyd v. State, 486 So.2d 1309, 1313 (Ala.Cr.App.1984), aff'd, 486 So.2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1328, 94 L.Ed.2d 179 (1987). However, we do not have here a case like Floyd. In Floyd, the appellant was not convicted of all eight counts of capital murder but was convicted of only one count of capital murder. In the present case, the appellant was convicted on all six counts of capital murder. We do agree with the court in Floyd that the state would not have been required to elect which alternative counts under § 13A-5-40(a)(l) and § 13A-5-40(a)(4) would be presented to the jury. Alternative methods of proving the same crime “[do] not constitute separate offenses.” Ex parte State [Sisson v. State], 528 So.2d 1159, 1162 (Ala.1988). However, the appellant’s conviction on all six alternative counts cannot stand. Thus, according to Sisson, the convictions on three counts of murder during the course of a burglary and on one count of murder during the course of kidnapping must be vacated. A person cannot be convicted for the same crime twice because to do so would violate the principles of double jeopardy. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). (For an in depth discussion applying the principles of Sisson and Blockburger to facts similar to those in this case, see Judge Bowen’s special concurrence opinion in King v. State, 574 So.2d 921 (Ala.Cr.App.1990).)’ ”

804 So.2d at 1149-50. Accord Living v. State, 796 So.2d 1121, 1143-44 (Ala.Crim.App.2000).

Here, just as in Wynn and Living, counts four and five were simply alternative methods of proving the single offense of the capital murder of Kenneth Holmes committed during a burglary. Likewise, counts six and seven were simply alternative methods of proving the single offense of the capital murder of Belinda Holmes committed during a burglary, and counts eight and nine were alternative methods of proving the single offense of the capital murder of Christian Holmes committed during a burglary. Even if Castillo had received but a single sentence for all of the capital-murder convictions, the mere fact that he was convicted of six counts of burglary-murder violates the Double Jeopardy Clause. See Living v. State, 796 So.2d at 1144; Knight v. State, 675 So.2d 487, 496-97 (Ala.Crim.App.1995). Accordingly, Castillo’s conviction as to all six counts of burglary-murder cannot stand. However, because counts ten and eleven contained an element not found in counts four through nine—murder committed by one act or pursuant to one scheme or course of conduct and murder when the victim is less than 14 years of age—Castillo’s convictions for counts ten and eleven do not violate the prohibition against double jeopardy. See Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000); Perkins v. State, 897 So.2d 457, 462 (Ala.Crim.App.2004).

For the reasons set forth above, the trial court erred in denying relief based on this ground. The convictions on six alternative counts of burglary-murder cannot stand. However, three convictions for burglary-murder’ have been proven— one for each of the three victims—and may stand. Accordingly, this case must be remanded for the trial court to enter an order that adjudges Castillo guilty of three counts of the capital offense of murder committed during the course of a burglary. See Ex parte Rice, 766 So.2d 143, 152-53 (Ala.1999).

II.

Castillo also argues that he was arraigned without counsel present. “The right of a defendant to have counsel present at arraignment is a jurisdictional prerequisite to a conviction.” Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992)). Thus, this claim is not subject to any of the procedural bars provided in Rule 32.2, Ala. R.Crim.P.

The record of Castillo’s direct appeal indicates that Castillo was represented by attorneys Richard Rhea and John Floyd. These attorneys filed motions on Castillo’s behalf before his April 19, 1997, arraignment. The record further indicates that these same attorneys continued to represent Castillo after he was arraigned. However, after carefully reviewing the record of Castillo’s direct appeal, we are unable to find any affirmative proof that Castillo was, in fact, represented by counsel at his arraignment. Indeed, the case action summary notation for April 19, 1997, states merely: “Defendant, upon being arraigned, does not enter a plea but stands [mute]. The Court enters a plea of not guilty and Defendant is given 60 days to file any objections to the indictment or to enter any further pleas, /s/ Roy S. Moore, Circuit Judge.” (C. 1, Castillo direct appeal.) Therefore, we find it necessary to remand this cause to the trial court for that court to determine whether Castillo was represented by counsel at his arraignment.

III.

Lastly, Castillo argues that he was not tried on his “special pleas” nor did he withdraw “these asserted defenses.” The record of Castillo’s direct appeal indicates that on May 1, 1997, Castillo’s attorneys filed a document entitled “Special Pleas by the Defendant,” in which the following pleas were entered on behalf of Castillo: (1) not guilty; (2) not guilty by reason of insanity; (3) not guilty by reason of mental disease or defect; and (4) not guilty by any combination of the aforementioned pleas. (C. 135-36, Castillo direct appeal.) We have carefully reviewed the entire record of Castillo’s direct appeal. Although defense counsel entered these special pleas and the trial court ordered Castillo to undergo a mental examination, no further mention of an insanity defense appears in the record. Given that an insanity defense is an affirmative defense, it would be incumbent upon defense counsel to present evidence establishing such defenses. However, we see no evidence that these “special pleas or defenses” were part of counsel’s defense strategy at trial. No mention is made of these defenses either during defense counsel’s opening argument or during his closing argument. Because it does not appear that counsel elected to use those pleas and/or defenses, we conclude that those claims were implicitly abandoned. Thus, there was no need for Castillo to formally withdraw his “special pleas and defenses.” Accordingly, no relief is warranted regarding this claim. Moreover, because this claim was not raised at trial or on direct appeal, it is barred from appellate review. See Rule 32.2(a)(3) and (a)(5), Ala.R.Crim.P.; Coleman v. State, 886 So.2d 891, 893 (Ala.Crim. App.2003).

For the reasons stated above, this case is remanded to the trial court for that court to enter an order that adjudges Castillo guilty of three counts of the capital offense of murder committed during the course of a burglary. The trial court shall also make findings of fact with regard to Castillo’s claim that he was not represented by counsel at his arraignment. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall in-elude the trial court’s specific, written findings of fact—including, if available, a transcript of the arraignment—as well as a transcript of any additional proceedings that may occur on remand.

REMANDED WITH DIRECTIONS.

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

      . This Court may take judicial notice of its own records. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998).


author: PER CURIAM. WISE, Judge COBB, Judge, SHAW, Judge,

text:
    Ex parte Curtis SANDIFER. In re State of Alabama v. Curtis Sandifer.
    CR-04-1391.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2005.
    See also 535 So.2d 203.

      Curtis Sandifer, petitioner, pro se.
    Troy King, atty. gen., and Elizabeth Ray Butler and Marc A. Starrett, asst, attys. gen., for respondent.
   PER CURIAM.

The petitioner, Curtis Sandifer, filed this petition for a writ of mandamus directing Judge James P. Smith to transfer his motion to reconsider his sentence, pending before Judge Smith, to the presiding judge of the Madison Circuit Court or to the judge who sentenced him. In 1987, Sandi-fer was convicted of robbery in the first degree; he was sentenced under the Habitual Felony Offender Act (“HFOA”) to life imprisonment without parole. We affirmed his conviction and sentence. See Sandifer v. State, 535 So.2d 203 (Ala.Crim. App.1987).

In 2004, Sandifer moved that his sentence be reduced pursuant to § 13A-5-9.1, Ala.Code 1975 — the recent amendment to the HFOA. Because the judge who sentenced Sandifer was no longer in office, the motion was assigned to Judge Smith. Judge Smith denied the motion; Sandifer appealed. By order dated March 29, 2005, we dismissed the appeal after finding that it was an appeal from a void judgment. We stated in our order that, with the absence of the sentencing judge, the appropriate judge to consider Sandifer’s motion was the presiding judge of the circuit. Sandifer v. State (CR-04-0880, March 22, 2005) (unpublished order). The presiding judge of the Madison Circuit Court is Judge Bruce E. Williams.

On March 31, 2005, Presiding Judge Williams issued an administrative order purporting to give Judge Smith the authority to consider, and to dispose of, all motions filed in the Madison Circuit Court pursuant to § 13A-5-9.1, Ala.Code 1975. On April 6, 2005, Judge Smith denied San-difer’s motion to reconsider his sentence. Sandifer then filed this mandamus petition.

By order dated June 29, 2005, we directed the State “to cite this Court to any authority that vests jurisdiction in a presiding judge, a judge who has been elected by a majority vote of his fellow circuit court judges, to appoint an acting presiding judge to consider certain business delegated to the presiding judge.”

Initially, we observe that this case is correctly before this Court by way of a petition for a writ of mandamus. We reviewed a similar issue by means of a petition for a writ of mandamus in Ex parte Bridges, 905 So.2d 32 (Ala.Crim.App.2005).

The administrative order issued by Presiding Judge Williams assigning all motions filed pursuant to § 13A-5-9.1 to Judge Smith stated:

“By the authority vested in me as Presiding Circuit Judge under the provisions of Rule 13 of the Alabama Rules of Judicial Administration; Section 12-1-14.1, Code of Alabama; and the above case(s) having been assigned to me pursuant to Kirby v. State, 899 So.2d 968 (Ala.2004), I hereby ORDER that the Circuit Clerk shall reassign all motions for postjudgment relief filed pursuant to Rule 32, A.R.Crim.P.[ ] and Section 13A-5-9.1, Code of Alabama, to the docket of Judge James P. Smith. Judge Smith, to whom such motions are assigned under the terms hereof, is the Judge presiding over such case and shall preside over such motions.”

In response to this mandamus petition, the State asserts that Rule 13(A), Ala.R.Jud.Admin., and § 12-l-14.1(a), Ala. Code 1975, give Presiding Judge Williams the authority to appoint a special judge to preside over all motions to reconsider sentence. It further asserts that Presiding Judge Williams’s order was an attempt to deal with the overwhelming number of cases that have been filed since the Supreme Court released it decision in Kirby v. State, 899 So.2d 968 (Ala.2004). The State has also attached copies of similar orders that have been issued by the presiding judges in Montgomery, Jefferson, and Mobile Counties.

Rule 13(A), Ala.R.Jud.Admin., states:

“The presiding circuit judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.”

Section 12-l-14.1(a), Ala.Code 1975, which was added effective September 26, 2001, provides:

“At the request of the affected judge in a particular circuit, the presiding circuit court judge of the circuit may appoint and commission a special circuit court judge, special district court judge, or special judge of probate for temporary service. The person so appointed shall possess the qualifications of the judgeship to which he or she is appointed. The special judge shall qualify by taking the oath of office prescribed in the Constitution of Alabama of 1901. The appointment shall confer on the special judge all powers, authority, and jurisdiction of the judgeship to which he or she is appointed. The special judge shall not receive compensation for his or her services.”

(Emphasis added.) Section 12-1-14.1, Ala.Code 1975, does not replace § 12-1-14, Ala.Code 1975, but is “supplemental to Section 12-1-14.” Section 12-l-14.1(c), Ala.Code 1975. Section 12-1-14, Ala.Code 1975, states:

“Should the need for special judges in the circuit court, district court or probate court arise, the Supreme Court may appoint and commission special circuit judges or special district court judges or special probate judges for temporary service; provided, however, that the person so appointed shall possess the qualifications of the judgeship to which he is appointed. Such special judges shall qualify by taking the oath of office prescribed in the Constitution. Such appointment shall confer on the special judge all powers, authority and jurisdiction of the respective judgeship to which he is appointed. Such special judge shall receive as compensation for his services a sum not to exceed $100.00 a day as established by rule and reimbursement for his actual and necessary expenses, including, but not limited to, transportation costs, food and lodging, to be paid out of the State Treasury or, in whole or part, from grant funds on approval and direction of the Administrative Office of Courts.”

(Emphasis added.)

In many cases, as was the situation in this ease, the original sentencing judge is no longer in office; therefore, there is no judge to request that the presiding judge appoint a special judge. Also, § 12-1-14.1, Ala.Code 1975, does not address those situations in which a presiding judge has difficulty accomplishing the duties assigned to him or her by virtue of his or her status as presiding judge. The situation presented in this case is not addressed in § 12-1-14.1, Ala.Code 1975; therefore, we believe that § 12-1-14, Ala.Code 1975, controls. Section 12-1-14, Ala.Code 1975, states, in part: “Should the need for special judges in the circuit court, district court or probate court arise, the Supreme Court may appoint and commission special circuit judges or special district court judges or special probate judges for temporary service.... ”

The judges dissenting from the opinion rely on a statute and a rule that applies to appointing special judges rather than to reassigning to a sitting judge the duties of a presiding circuit judge. The Alabama Supreme Court has enacted rules governing the selection of presiding circuit judges. See Rule 6(A), Ala.R.Jud.Admin. According to Rule 6(A), Ala.R.Jud.Admin., if a circuit has more than one circuit judge, a presiding judge is elected by a majority vote of his or her fellow circuit judges to serve a three year term. See also § 12-17-23, Ala.Code 1975. Rule 6(A), Ala.R.Jud.Admin., also allows the Supreme Court, in certain situations, to elect a presiding judge. The Supreme Court has held that Rule 6(A), Ala.R.Jud.Admin., takes precedence over § 12-17-23, Ala. Code 1975, the statute addressing the election of presiding judges. See In re Opinion of the Clerk, 606 So.2d 138 (Ala.1992). Here, the effect of Presiding Judge Williams’s administrative order was to appoint an acting presiding judge to dispose of business delegated to him by virtue of his position as the duly elected presiding judge of the Madison Circuit Court. There is no provision in Rule 6(A), Ala.R.Jud.Admin., that gives Judge Williams the authority to appoint such a special presiding judge.

Also, the Chief Justice has issued an administrative order addressing Kirby motions in Talladega County. In Talladega County the presiding judge, Judge Julian King, petitioned the Chief Justice of the Alabama Supreme Court to appoint a special judge to preside over all motions to reconsider sentences that were filed in that circuit. The Chief Justice’s December 22, 2004, order in response to Presiding Judge King’s petition stated the following facts:

“To the Honorable William E. Holl-ingsworth, Circuit Judge Talladega County, Alabama
“Whereas, Judge Julian M. King, Presiding Judge for the 29th Judicial Circuit of Alabama finds a need for a special judge to hear all petitions/motions filed pursuant to Kirby v. State, 899 So.2d 968 (Ala.2004), due to conflicts arising from previously serving as an Assistant District Attorney in the twenty-ninth judicial circuit and having participated in the prosecution of many of the defendants who may be affected by the holdings of such cases.
“Whereas, the Supreme Court of Alabama hereby authorizes and empowers Williams E. Hollingsworth, a Circuit Judge in Talladega County, to act as a special judge to hear all cases of said matter.”

Most importantly, Presiding Judge Williams’s administrative order assigning all Kirby motions to Judge Smith conflicts with § 13A-5-9.1, Ala.Code 1975, and the Supreme Court’s decision in Kirby. Section 13A-5-9.1, Ala.Code 1975, states:

“The provisions of Section 13A-5-9 shall be applied retroactively by the sentencing judge or presiding judge for consideration of early parole of each nonviolent convicted offender based on evaluations performed by the Department of Corrections and approved by the Board of Pardons and Paroles and submitted to the court.”

(Emphasis added.) The legislature chose to use the term “presiding judge” instead of “judge presiding over the case” or “sentencing judge’s successor in office”; we assume that the legislature had its reasons for doing so. One explanation may be that the presiding judge of a particular circuit is the senior judicial officer in that particular circuit and exercises a general superintendence over his or her fellow judges. See § 12-17-24, Ala.Code 1975.

In Kirby v. State, the Alabama Supreme Court discussed the significance of § 13A-5-9.1, Ala.Code 1975, and stated:

“Normally, a trial court loses jurisdiction to modify a sentence in a criminal case if a request for modification is not filed within 30 days of sentencing. Massey v. State, 587 So.2d 448 (Ala.Crim.App.1991). By requiring in § 13A-5-9.1 that the provisions of § 13A-5-9 are to be applied retroactively, however, the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than SO days after a defendant has been sentenced. ...
“... Only the Legislature, within constitutional limits, has the authority to alter the jurisdiction of the circuit courts. Henderson v. State, 616 So.2d 406, 407-10 (Ala.Crim.App.1993). By passing a general act of statewide application, the Legislature can change the rules this Court has promulgated governing the administration of all courts. Ex parte Kennedy, 656 So.2d 365, 367 (Ala.1995). Section 13A-5-9.1 is an act of statewide application that confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively.
“Section 13A-5-9.1 directs the sentencing judge or the presiding judge to apply the provisions of § 13A-5-9 retroactively, thereby making the benefits of the 2000 amendment to the HFOA available to inmates who were sentenced pursuant to the HFOA before it was amended in 2000.
“... It is axiomatic that only the sentencing judge or the presiding judge should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced.... ”

899 So.2d at 971-74 (emphasis added).

This Court in Bulger v. State, 904 So.2d 219, 221 (Ala.Crim.App.2004), citing the Supreme Court’s decision in Kirby, stated:

“Section 13A-5-9.1 specifically provides for the reconsideration of a sentence ‘by the sentencing judge or presiding judge.’ As the Supreme Court held in Kirby, ‘[sjection 13A-5-9.1 is an act of statewide application that confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively.’ 899 So.2d at 972. Although normally a trial court loses jurisdiction to modify a sentence more than 30 days after sentencing, by enacting § 13A-5-9.1, ‘the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced.’ Kirby, 899 So.2d at 971 (emphasis added).”

In Bulger we ultimately dismissed the appeal because the lower court’s ruling was void — the circuit court judge who disposed of the motion to reconsider Bulger’s sentence was neither the judge who sentenced Bulger nor the presiding judge of the circuit.

The Supreme Court in Kirby stated that a motion to reconsider a sentence in accordance with § 13A-5-9.1 should be considered by the presiding judge or the sentencing judge. As the Alabama Supreme Court stated in Ex parte James, 836 So.2d 813 (Ala.2002):

“This Court, as the Supreme Court of Alabama, has constitutionally grounded supervisory authority over the State courts of Alabama. Amendment 328, § 6.02(b), Ala. Const.1901, Amending Art. VI, § 140-Accordingly, just as the United States Supreme Court is the final arbiter of federal law, ... the Supreme Court of Alabama is the final arbiter of Alabama law, with ultimate authority to oversee and rule upon the decisions of the lower State courts.”

836 So.2d at 833-34 (footnote omitted). Moreover, this court is bound by the decisions of our State’s highest court. See § 12-3-16, Ala.Code 1975.

We know that Presiding Judge Williams issued the administrative order assigning all Kirby motions to Judge Smith out of a desire to maintain consistency and efficiency in the disposition of cases in the circuit over which he presides. We do not question his motives. However, we cannot agree with the dissenting judges that Rule 13(A), Ala.R.Jud.Admin., gives a presiding circuit judge the same power as the Chief Justice of the Alabama Supreme Court to appoint judges. The Chief Justice is administrative head of the entire Alabama judicial system by virtue of § 12-2-30, Ala. Code 1975. Moreover, Rule 6(A), Ala.R.Jud.Admin., as adopted by the Supreme Court, specifically allows for only two means of electing a presiding circuit judge: (1) by a majority vote of the circuit judges in the designated circuit; or (2) by the Alabama Supreme Court. We can find no statute or rule that gives a presiding circuit judge the authority to unilaterally appoint an acting presiding judge. While we recognize that the conclusion reached in the dissenting opinions may be the more logical one, we are constrained to hold that Presiding Judge Williams had no authority to delegate his responsibilities as presiding circuit judge to another judge, a judge who had been neither elected by his fellow circuit judges nor appointed by the Alabama Supreme Court. If Presiding Judge Williams’s administrative order did not assign the duties of a presiding judge to another sitting judge, we would reach a different result.

The instant situation is but one of the complications resulting from the Supreme Court’s decision in Kirby. Accordingly, we urge the Alabama Supreme Court to revisit its decision in Kirby, particularly that portion relating to the right to appeal Kirby motions, in light of the fact that a question exists as to whether the grant or denial of Kirby motion is even appealable. We believe that the ultimate decision to resentence a defendant based on the amendment to the HFOA is a decision that is within the discretion of the circuit court and one that should not be subject to appellate review. Compare Gilmore v. State, 669 So.2d 239, 239 (Ala.Cr.App.1995) (granting probation is discretionary with the circuit court and not subject to appellate review). See also Prestwood v. State, 915 So.2d 580 (Ala.Crim.App.2005) (severely limits the issues this Court will consider on the appeal from the denial of a motion to reconsider a sentence).

In any event, we urge the Alabama Supreme Court to address the problems exemplified by this case at its earliest opportunity. For the foregoing reasons we are compelled to hold that Judge Smith had no jurisdiction to consider Sandifer’s motion to reconsider his sentence. Sandifer is due the relief that he seeks in this mandamus petition. See Bridges, supra. Judge Smith is directed to transfer Sandifer’s motion to reconsider his sentence to the presiding judge of the Madison Circuit Court — Judge Bruce Williams.

PETITION GRANTED; WRIT ISSUED.

McMILLAN, P.J., and BASCHAB, J., concur.

WISE, J., concurs specially, with opinion.

COBB, J., dissents, with opinion.

SHAW, J., dissents, with opinion, which COBB J., joins.

WISE, Judge

(concurring specially).

I reluctantly concur with the conclusion in the main opinion that Presiding Judge Williams “had no authority to delegate his responsibilities as presiding circuit judge to another judge, a judge who had been neither elected by his fellow circuit judges nor appointed by the Alabama Supreme Court.” 925 So.2d at 296. To hold otherwise would conflict with the actions of the Chief Justice of the Alabama Supreme Court in resolving a related matter from Talladega County. While I believe that it is only logical that Judge Williams should have the authority to issue the administrative order that forms the basis for this petition, neither § 12-l-14.1(a), Ala.Code 1975, nor Rule 13(A), Ala.R.Jud.Admin., gives a presiding circuit judge the authority to do so. For this reason, I write specially to urge the Alabama Supreme Court to amend the Rules of Judicial Administration to correct this problem. Alternatively, I urge the Alabama Legislature to amend § 13A-5-9.1 to prevent problems like this one from occurring in the future.

COBB, Judge,

dissenting.

I agree fully with Judge Shaw’s well-reasoned dissent in this case. The dockets in the circuit courts of this State have become more burdened with each passing year, and that burden has been exponentially increased — especially in the larger circuits — by the filing of motions filed pursuant to Kirby v. State, 899 So.2d 968 (Ala.2004), following the Alabama Legislature’s enactment of § 13A-5-9.1, Ala.Code 1975. The December 22, 2004, administrative order issued by the Chief Justice of Alabama, pursuant to § 12-17-25, Ala. Code 1975, was intended to assist the presiding judge of Talladega County in disposing of the Kirby motions in his circuit.

Like Judge Shaw, I find nothing in that administrative order or in Alabama law that precludes a presiding circuit judge from assigning a circuit judge to dispose of Kirby motions. To the contrary, Rule 13(A), Ala. R. Jud. Admin., provides that the presiding circuit judge may temporarily assign a circuit judge to serve within the circuit. Rule 13 was intended to promote “the orderly administration of justice within the circuit,” according to the Comment following the rule. The orderly administration of justice would certainly be facilitated by the presiding judge’s appointment of a circuit judge in this instance. The delegation of authority to a circuit judge would not thwart the legislative intent behind § 13A-5-9.1, which is a point the Chief Justice implicitly recognized when he issued the administrative order.

Therefore, I agree with Judge Shaw’s conclusion and I, too, “would hold that presiding circuit judges, have the same administrative authority under Rule 13(A) that is vested in the Chief Justice under § 12-17-25 to. assign certain judges when necessary to hear Kirby motions.” .925 So.2d at 300 (Shaw, J., dissenting). This holding would allow presiding judges to accomplish directly what the majority would have them do indirectly by petitioning the Chief Justice for the same relief. In these times of overburdened circuit court dockets, this result is not only permissible, it is far more reasonable.

For the foregoing reasons, I join Judge Shaw’s dissent.

SHAW, Judge,

dissenting.

After’ carefully reviewing Curtis Sandi-fer’s petition and the State’s response to it, I believe that there is yet another discern-able, judicially clearable path through the procedural wilderness created by the legislature’s enactment of. § 13A-5-9.1, Ala. Code 1975. See Kirby v. State, 899 So.2d 968 (Ala.2004); Bulger v. State, 904 So.2d 219 (Ala.Crim.App.2004); Malloy v. State, 908 So.2d 1048 (Ala.Crim.App.2004); and Ex parte Bridges, 905 So.2d 32 (Ala.Crim.App.2005), for examples of how Alabama’s appellate courts have addressed issues raised by § 13A-5-9.1.

At the outset, I note that the majority’s holding is not without its strong points and may, ultimately, prove to be' the more legally -sound position. Time and a higher court will tell. However, believing, as I do, that the presiding circuit judges of this State, especially those in our larger circuits, are in need of assistance in expeditiously and efficiently disposing of an ever-increasing number of what we routinely now call “Kirby” motions, and that the legislature never contemplated the procedural problems presented by specifically authorizing only the sentencing judge or the presiding judge of the circuit to handle those motions, I must agree with the State that there is authority sufficiently broad to permit the presiding judge of a circuit to authorize another circuit judge to handle Kirby motions within the circuit.

Initially, I note, as does the majority, that the Chief Justice of Alabama has issued an administrative order assigning a special circuit judge in Talladega County to preside over all Kirby motions filed in that circuit. The Chief Justice’s December 22, 2004, order states in pertinent part:

“TO THE HONORABLE WILLIAM E. HOLLINGSWORTH, CIRCUIT JUDGE TALLADEGA COUNTY, ALABAMA
“WHEREAS, Judge Julian M. King, Presiding Circuit Judge for the 29th Judicial Circuit of Alabama finds a need for a special judge to hear all petitions/motions filed pursuant to Junior Mack Kirby v. State, 899 So.2d 968 (Ala.2004), due to conflicts arising from previously serving as an Assistant District Attorney in the twenty-ninth judicial circuit and having participated in the prosecution of many of the defendants who may be affected by the holdings of such case.
‘WHEREAS, the Supreme Court of Alabama hereby authorizes and empowers William E. Hollingsworth, a Circuit Judge in Talladega County, to act as a special judge to hear all cases of said matter.
“IT IS FURTHER DIRECTED that this order be spread upon the minutes of the Court.”

(Capitalization in original.)

It appears to me that the Chief Justice’s order, the authority for which, I assume, was § 12-17-25, Ala.Code 1975, was issued out of necessity for the purpose of assisting the presiding judge in disposing of the Kirby motions filed in his circuit.

Section 12-17-25 provides:

“Any judge shall, whenever he deems it necessary, call on the Chief Justice of the Supreme Court to assign one or more judges to relieve the judges who need assistance in clearing dockets, civil and criminal.”

The State argues, essentially, that the specific statutory language that empowers the Chief Justice to assign circuit judges within a judicial circuit to hear Kirby motions, and thereby assist in reducing the presiding judge’s docket, is not materially different from the wording of Rule 13(A), Ala.R.Jud.Admin., which pertains to a presiding circuit judge’s administrative power of assignment.

Rule 13(A) provides:

“(A) The presiding circuit judge may temporarily assign circuit or district court judges to serve either within the circuit or in district courts within the circuit.”

The Comment to Rule 13 notes that it was intended to provide the presiding circuit judge with the ability to temporarily assign a circuit judge “if, in his discretion, he deems such assignment necessary to assist in the orderly administration of justice within the circuit.”

The majority does not clearly explain why it believes that Rule 13(A) should be read, so restrietively as to preclude a presiding circuit judge from assigning a circuit judge to hear Kirby motions when apparently it does not read § 12-17-25 just as restrietively to preclude the Chief Justice from taking similar action. Rule 13 constitutes a broad delegation of authority to presiding circuit judges, and it has passed constitutional muster in this Court and in the Alabama Supreme Court. See, e.g., Adkins v. State, 600 So.2d 1054 (Ala.Crim.App.1990); see also Howard v. State, 611 So.2d 1143 (Ala.Crim.App.1992). In State ex rel. Locke v. Sweeney, 349 So.2d 1147, 1148 (Ala.1977), the Alabama Supreme Court stated:

“Art. 6.11 of the Judicial Article, standing alone, permits this court to adopt a rule providing for the temporary assignment of judges by the presiding judges of the various circuits. One of the primary goals of the Unified Court System is the maximum utilization of judicial manpower to promote the expeditious dispensation of justice. The Judicial Article, Art. 6.10 (carried in [Ala.] Code [1975] as Art. 6, § 149), expressly vesting the Chief Justice with authority to temporarily assign any judge to any court in any judicial circuit in the state in no way restricts the authority of this court to promulgate a rule authorizing the presiding circuit judges to temporarily assign judges within the individual circuits.”

I see no material distinction between the language of § 12-17-25 and Rule 13(A). The legislature’s obvious intent in enacting § 12-17-25 was to vest the Chief Justice with administrative flexibility so that he or she could temporarily reassign judges to assist other judges in clearing dockets. The Supreme Court’s intent in promulgating Rule 13(A) appears to have been to allow a presiding circuit judge to have the flexibility to accomplish the same purpose. Obviously, the Chief Justice finds no inconsistency between § 12-17-25 and § -13A-5-9.1. It seems logical to me, and apparently to the Chief Justice as well, that the legislature’s choice of the presiding judge to hear Kirby motions, as an alternative to the sentencing judge when the sentencing judge is unavailable, was not the result of a policy concern so great that it would override its intent, as expressed in other statutes, that the judiciary have the administrative flexibility to clear clogged dockets. See, e.g., § 12-17-25; § 12-1-14; § 12-1-14.1.

Section 13A-5-9.1 is not a beacon of clarity. . See Kirby, supra. I fail to see how the presiding circuit judge would have any more connection with, or insight into, a specific request under Kirby. for sentence modification than any other circuit judge, in the absence of the sentencing judge. It seems to me that, in selecting the presiding judge as the alternative judge to hear the motion, the legislature was merely acknowledging the presiding judge’s general supervisory authority over cases within the circuit, and not expressing a preference, based on strong public policy, for the presiding judge over all other judges within a circuit.

Section 13A-5-9.1 does not specifically prohibit a presiding circuit judge from assigning another circuit judge to preside over Kirby motions. Section 12-17-25 has been construed by the Chief Justice to authorize him to assign a circuit judge to hear Kirby motions. To date the Supreme Court has not addressed this issue, at least not directly. However, assuming that the Chief Justice is correct that he has the statutory authority to assign a circuit judge to act as a special presiding judge over a specific class of cases, i.e., Kirby motions, and I believe that his interpretation of § 13A-5-9.1 in conjunction with § 12-17-25 is reasonable, then I see no logical reason why presiding judges should not have the same authority under Rule 13(A). In light of the legislature’s clear expression of intent in other statutes that courts have the flexibility to clear clogged dockets, as well as the evident purpose underlying § 13A-5-9.1 (to provide for the expeditious release from prison of certain nonviolent offenders), the reference in § 13A-5-9.1 to the presiding judge creates, in my view, a latent ambiguity in the statute as to whether the legislature truly intended for only the presiding judge to rule on a Kirby motion in the event of the unavailability of the sentencing judge. See Interstate Inv. Corp. v. Rose Care, Inc., 631 So.2d 836, 839 (Ala.1993) (“A latent ambiguity occurs when the language of an instrument is clear and intelligible, but, when considered in light of certain extraneous facts, takes on another meaning.”). Finding no logical, countervailing expression of legislative intent that would suggest a public policy in favor of only the presiding judge’s disposing of Kirby motions, I would read § 13A-5-9.1 in pari materia with § 12-17-25 and hold that the legislature’s intent in enacting § 13A-5-9.1 was not to preclude a presiding judge from delegating the handling of Kirby motions to another circuit judge in the event the sentencing judge was unavailable. Based on the similarity of the wording of § 12-17-25 and Rule 13(A), I would hold that presiding circuit judges have the same administrative authority under Rule 13(A) that is vested in the Chief Justice under § 12-17-25 to assign certain judges when necessary to hear Kirby motions. That interpretation is reasonable, I think, and would eliminate the need for presiding judges to ask the Chief Justice to do what they could do more quickly and efficiently.

For the foregoing reasons, I respectfully dissent.

COBB, J., concurs.

      . The Court of Criminal Appeals can take judicial notice of the identity of the presiding judge in a specific circuit. See Ex parte Bush, 270 Ala. 62, 116 So.2d 382 (1959).

      . Rule 32.6(d), Ala.R.Crim.P., specifically provides that "[t]he proceeding shall be assigned to the sentencing judge where possible, but for good cause the proceeding may be assigned or transferred to another judge." It is this Court’s experience that when a sentencing judge is no longer in office a Rule 32 petition is assigned to the sentencing judge's successor in office.

      . Before the enactment of § 12-1-14.1, Ala. Code 1975, only the Chief Justice could appoint temporary judges. See Art. VI, § 149, Ala. Const. 1901. Section 149 provides, in part:
      "The chief justice of the supreme court shall be the administrative head of the judicial system. He shall appoint an administrative director of courts and other needed personnel to assist him with his administrative tasks. The chief justice may assign appellate justices and judges to any appellate court for temporary service and trial judges, supernumerary justices and judges, and retired trial judges and retired appellate judges for temporary service in any court."

      . We believe that the Chief Justice's authority to issue this order derived from Art. VI, § 149, Ala. Const.1901, as cited in footnote 3.

      . Act No. 01-977, Ala. Acts 2001, codified at § 13A-5-9.1, Ala Code 1975, provides little indication of the legislature’s intent in enacting that code section. The title to the Act states that it is an Act "[Relating to persons sentenced as habitual offenders; to provide further for eligibility for parole consideration of non-violent offenders."

      . Also, according to § 12-3-11, Ala.Code 1975, the Court of Criminal Appeals has general superintendence and control over lower courts concerning matters that fall within our appellate jurisdiction.

      . The Supreme Court in State ex rel. Locke v. Sweeney, 349 So.2d 1147 (Ala.1977), held that the Supreme Court had the authority to enact Rule 13, Ala.R.Jud.Admin. — a rule allowing presiding judges to temporarily assign another judicial officer. However, two Justices dissented from that decision and questioned the Supreme Court’s power to enact such a rule. The dissenting Justices stated: "[T]he power of temporary assignments having been placed specifically in his [the Chief Justice's] hands by the Constitution, certainly the Supreme Court as a body cannot place it in the hands of another judicial officer, such as the presiding judge of a judicial circuit.” 349 So.2d at 1149.

      . Section 12-2-30 provides, in part:
      "(a) The Chief Justice shall see that the business of the several courts of the state is attended with proper dispatch and that cases, civil and criminal, are not permitted to become congested or delayed, and he shall take care that prisoners are not allowed to remain in the jails without a prompt trial.
      "(b) In connection with these duties and other responsibilities, the Chief Justice is authorized and empowered:

      "(7) To take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state.
      "(8) To take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere.”
      Section 12-17-25 provides the specific authorization for the Chief Justice to appoint a special judge; therefore, that section logically provides the legal underpinning for his order.

      . I note that the Chief Justice’s order states, in part:
      "WHEREAS, the Supreme Court of Alabama hereby authorizes and empowers William E. Hollingsworth, a Circuit Judge in Talladega County, to act as a special judge to hear all cases of said matter.
      "IT IS FURTHER DIRECTED that this order be spread upon the minutes of the Court.”
      (Capitalization original; emphasis added.) Because there is no vote line appended to the Chief Justice's order, I assume that this administrative order does not necessarily reflect the views of the other Justices of the Supreme Court. However, I have no sure way of knowing whether those Justices have at least tacitly approved the action taken by the Chief Justice in the order.

      . I note that if the Chief Justice acted outside his authority in issuing the December 22, 2004, order, then the validity of all the Kirby rulings made by Judge Hollingsworth to date may be called into question.


author: PER CURIAM.

text:
    Donald Alan TOBKIN, individually and on behalf of his minor children, Tracey Tobkin, Tabby Tobkin and Toby Tobkin, Appellants, v. Marilyn Byrd TOBKIN, Susan Reiter-Greenbaum, Shlomo (Sheldon) Greenbaum, Barbara Schneider, Sydney Marie Holley-daughter of Marilyn Byrd Tobkin, Cynthia Bates and City of Hollywood Police Department, Appellees.
    No. 4D05-2413.
    District Court of Appeal of Florida, Fourth District.
    April 12, 2005.
    Donald A. Tobkin, Hollywood, pro se.
    Daniel L. Abbott and Robert M. Older-shaw, Hollywood for appellee City of Hollywood.
   PER CURIAM.

Appellant brought an action against a number of parties, including the City of Hollywood Police Department, which is not an entity subject to suit. Eddy v. City of Miami, 715 F.Supp. 1553, 1556 (S.D.Fla.1989) (“Where a police department is an integral part of the city government as the vehicle through which the city government fulfills its policing functions, it is not an entity subject to suit.”). We affirm the dismissal of the police department without prejudice to appellant amending his complaint to add the proper entity. Affirmed.

POLEN, KLEIN and SHAHOOD, JJ„ concur.


author: CASANUEVA, Judge.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner, v. John PATTERSON, Respondent.
    No. 2D05-2022.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 2005.

      Thomas M. Gonzalez and Ann Marie Hensler of Thompson, Sizemore & Gonzalez, Tampa, for Petitioner.
    Merette L. Oweis, Lakeland, for Respondent.
   CASANUEVA, Judge.

The Department of Children and Family Services petitions this court to quash an order of the trial court entered on John Patterson’s motion to compel deposition. We deny the petition in the main, grant it in part, and remand with instructions for the circuit court to amend the. order to require further safeguards against disclosure of certain protected information.

Attorney John Patterson formerly worked for the Department; his employment which began in May 2001, was terminated in October 2002, allegedly based on unsatisfactory performance. Mr. Patterson, believing he had been terminated because of complaints he had made concerning the way the Department handled cases, filed a one-count complaint against the Department alleging a violation of Florida’s Whistle-blower’s Act. See §§ 112.3187-31895, Fla. Stat. (2002). In the discovery stage of the proceedings, Mr. Patterson noticed for deposition two of his former supervisors. During the first deposition, Mr. Patterson’s counsel began inquiring about particulars of individual cases; the Department’s counsel objected, stating that the information sought was confidential pursuant to chapter 39. The deponent, as the attorney responsible for the cases, would not reveal the statutorily protected information without a prior in camera inspection and order by the court that the material was relevant and disclosure permissible. The deposition was terminated at this point.

Mr. Patterson then filed a motion to compel deposition. After hearing, the circuit court granted the motion and ordered that all questions and answers disclosing information protected under section 39.202, Florida Statutes (2002), be grouped in one area. At the conclusion of the deposition, the court would then perform an in camera inspection of the segregated materials to determine whether they contain information necessary for the prosecution of Mr. Patterson’s case. The Department filed this petition for writ of certiorari seeking an order requiring the circuit court to perform the in camera inspection of the protected material and determine its relevancy prior to allowing its disclosure in the deposition.

A petition for writ of certiorari is appropriate when a pretrial order departs from the essential requirements of law and causes material injury to a party throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal. State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597 (Fla. 2d DCA 1993). A dispute regarding an order compelling discovery of material protected under chapter 39 is appropriately settled in a certiorari proceeding. Hill v. Hill, 371 So.2d 573 (Fla. 1st DCA 1979).

Section 39.202(1) requires the Department to maintain the confidentiality of the records of children and families concerning reports of abandonment, abuse, and neglect. Specifically, this section exempts such material from the open records provisions of section 119.07(1). However, such records can be disclosed under certain circumstances, and those circumstances are present here. Section 39.202(2)(f) provides:

(2) Access to such records, excluding the name of the reporter which shall be released only as provided in subsection (4), shall be granted only to the following persons, officials, and agencies:
(f) A court upon its finding that access to such records may be necessary for the determination of an issue before the court; however, such access shall be limited to inspection in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

The Department argues that the in camera inspection must be performed prior to questioning the deponent about the protected information. The statute does not expressly require this, but provides only that the court must not allow public disclosure unless necessary to resolve an issue before it. The circuit court’s order attempted a balancing act between going forward with the deposition and fair prosecution of Mr. Patterson’s suit on one hand and the Department’s well-founded confidentiality concerns on the other. The court’s order falls short, however, of the necessary protection. While it seeks to segregate the disputed material for its later in camera review, it fails to adequately prevent inadvertent or intentional disclosure by deponents or others present at the deposition. Once the protected information is divulged in the deposition, without a confidentiality safeguard in place there is no way further disclosure can be avoided. A confidentiality order is required to ensure statutory compliance until the trial court completes its in camera review.

Therefore, we deny the Department’s petition in part but remand so the court may expand its order on Mr. Patterson’s motion to compel deposition. When the depositions reconvene, any person present at the deposition should be precluded from subsequently discussing with or disclosing to outsiders any potentially confidential information heard at the deposition until further order of the court following its in camera review of the materials.

Petition denied in part and granted in part and remanded with instructions.

ALTENBERND and KELLY, JJ„ Concur.

      . Judge Oliver L. Green, Jr. provided such safeguards in an earlier order in these proceedings. We direct the trial court's attention to the language used in that June 29, 2004, order on the Department s motion for protective order and the plaintiff’s motion to compel.


author: THOMPSON, J.

text:
    COUNTY OF VOLUSIA, Petitioner, v. CITY OF DELTONA, et al., Respondents.
    No. 5D05-1032.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2006.
    Rehearing Denied April 7, 2006.

      Randell H. Rowe, III, and Michael G. Dyer, Assistant County Attorney, DeLand, for Petitioner.
    Lonnie N. Groot of Stenstrom, McIntosh, Colbert, Whigham, Reischmann & Partlow, P.A., Sanford, Amicus Curiae, for City of Lake Helen.
    Albert J. Hadeed of Albert J. Hadeed, P.A., Flagler Beach, Amicus Curiae, for Environmental Council of Volusia and Fla-gler Counties, Inc.
    L. Roland Blossom, City Attorney and George Trovato, Assistant City Attorney, Deltona, for Respondent, City of Deltona.
    C. Allen Watts of Cobb & Cole, P.A., DeLand, for Respondent, Leffler Co.
   THOMPSON, J.

The County of Volusia (“County”) seeks certiorari review of an order from the circuit court, sitting in its appellate capacity, which denied certiorari review of an annexation ordinance passed by the City of Deltona (“City”). At issue in this case is the proper procedure for property owners seeking voluntary annexation. The County contends that the circuit court applied the incorrect law when it held that section 171.021, Florida Statutes (2003), did not apply to voluntary annexations and that the criteria set forth in sections 171.0413, 171.042, and 171.043 apply only to involuntary annexations. We quash the order of the circuit court that denied certiorari review and remand for further proceedings in accordance with this opinion.

The annexation involves three tracts of land identified in the County’s comprehensive plan as part of a critical environmental systems corridor. The largest tract consists of 4626 acres owned by Leffler Co. (“Leffler”). Another tract of 339 acres is owned by Joseph and Venus Lao, Trustees. The third tract is a narrow ten-acre parcel owned by Roger L. Gray, Trustee. The circuit court made the following factual and procedural findings:

On March 1, 2004, the City Commission adopted Ordinance No. 02-2004, voluntarily annexing approximately 4,975 acres located in unincorporated Volusia County, Florida, pursuant to Florida Statutes § 171.044 of the Municipal Annexation or Contraction Act. The issues before this Court concern the validity of that voluntary annexation.
The owners of the three (3) parcels consisting of 10,339, and 4,626 acres, respectively, filed petitions proposing that their parcels be included within the City boundaries and requesting that the City consider their petitions as a unified request to annex all of their properties together. Pursuant to ... § 171.044(2), Florida Statutes, the City Commission verified the signatures of the property owners and held two (2) hearings on the ordinance. The public was given an opportunity to speak at both hearings.
The Leffler Company (“Leffler”), owner of the vast majority of the land proposed for annexation, submitted a “Pre-Annexation Agreement” (“Agreement”) to the City as its petition for voluntary annexation of its 4,626 acres. The Agreement addressed future planning and development of the property and was unsigned by the City at the first reading. The Agreement was subsequently submitted to the City Commission as a proposed contract between Leffler and the City, and was approved by the Commission as a separate agenda item prior to the final adoption of the voluntary annexation ordinance.
At the final public hearing on the annexation ordinance, the Director of Growth and Resource Management for Volusia County (“Director”) presented a letter of objection from the County and provided to each of the City Commissioners a copy of a twenty-nine (29) page report from a hired “expert” to the Commissioners. The Director also presented an affidavit from the expert, but the expert did not testify and the Director did not read the report or any of its contents into the record. Following public comments, discussion by the Commissioners, and inquiries of City staff by the Commissioners, the Commissioners voted 6 to 1 in favor of annexing the subject parcels, pursuant to Fla. Stat. § 171.044.
Subsequent to the filing of the County’s certiorari petition, this Court granted permission to appear as amicus curiae to the City of Lake Helen, Deltona residents Jack Hoyt and Harlan Reed Parsons, and the following entities: Environmental Council of Volusia and Fla-gler Counties, Volusia-Flagler Sierra Club, Osteen Preservation Society, Inc., Enterprise Preservation Society, Inc., Wetlands Alert, Inc. and Flagler Environmental Action Committee, Inc. These entities and individuals filed briefs and participated in oral argument in support of the County’s position.
Leffler, the primary property owner, also participated in this action and oral argument. Leffler had sought entry into this proceeding as an indispensable party and filed a motion to dismiss. This Court rejected Leffler’s claimed status as an indispensable party and denied its motion to dismiss. Leffler sought review of that ruling by filing a Petition for Writ of Prohibition in the Fifth District Court of Appeal. On October 26, 2004, the Fifth District Court of Appeal entered an Order denying Leffler’s petition on the merits, with prejudice. Leffler subsequently filed a request to intervene in this proceeding. At the hearing on its request, Leffler expressly conceded to this Court that its status as an intervener [sic] would be subordinate to, and in recognition of, the propriety of the main proceeding, pursuant to Florida Rules of Civil Procedure, Rule 1.230. This Court, in recognition of Levler’s [sic] justiciable interest in this cause and in the interest of judicial economy, permitted Leffler’s intervention.

The circuit court asserted jurisdiction to review the validity of the annexation ordinance under section 171.081. The County timely petitioned for certiorari review of the circuit court’s decision.

Circuit courts review annexation ordinances by certiorari under section 171.081. See City of Auburndale v. Town of Polk City, 898 So.2d 1101, 1102 (Fla. 2d DCA 2005); City of Tallahassee v. Kovach, 733 So.2d 576, 577-78 (Fla. 1st DCA 1999). In this first-tier review, the court determines only: whether the lower tribunal afforded the parties procedural due process; whether the essential requirements of law were observed; and whether the lower tribunal’s action was supported by competent, substantial evidence. See Broward County v. G.B.V. Int'l, Ltd., 787 So.2d 838, 842-44 (Fla.2001); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). The court may not reweigh the evidence or substitute its judgment for that of the agency. Haines City Cmty. Dev., 658 So.2d at 529 (citing Educ. Dev. Ctr. v. City of West Palm Beach Zoning Bd. of Appeals, 541 So.2d 106, 108-109 (Fla.1989)).

Review of the circuit court’s decision is by certiorari in the district court and is limited to determining whether the circuit court afforded procedural due process and applied the correct law or, stated differently, whether the circuit court departed from the essential requirements of law. See G.B.V., 787 So.2d at 843; Haines City Cmty. Dev., 658 So.2d at 530-31; City of Auburndale, 898 So.2d at 1102. The district court may not review the record to determine whether the agency’s decision is supported by competent, substantial evidence. Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000). It may not grant certiorari merely because it disagrees ■ with the circuit court’s evaluation of the evidence. Educ. Dev. Ctr., 541 So.2d at 108. Certiorari is not used to grant a second appeal or redress mere legal error; rather, it provides a safety net to correct a miscarriage of justice when no other remedy is available. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997); see also G.B.V., 787 So.2d at 842; Haines City Cmty. Dev., 658 So.2d at 529.

To determine whether the trial court afforded procedural due process to the parties, we review the circuit court’s decision regarding these issues: (1) the County’s standing; (2) the Gray Parcel’s previous de-annexation; (3) the evidence before the City Commission; (4) compactness and the absence of enclaves; (5) contiguousness; and (6) the Pre-Annexation Agreement between the City and Leffler. We hold the circuit court correctly applied the law and did not depart from the essential requirements of the law as to issues 1 through 4. However, we find the trial court erred in deciding issues 5 and 6, which we discuss below.

Contiguousness.

The circuit court departed from the essential requirements of the law in determining the property was contiguous. Property is contiguous when “[a] substantial part of a boundary of the territory sought to be annexed by a municipality is coterminous with a part of the boundary of the municipality.” § 171.031(11); see also Sanford v. Seminole County, 538 So.2d 113, 115 (Fla. 5th DCA 1989) (noting that “contiguous” in annexation has been defined as “touching or adjoining in a reasonably substantial ... sense”). Local rights-of-way, utility easements, railroad rights-of-way, and like entities may not be annexed in corridor fashion to gain contiguity. § 171.031(11).

The court cited a recent Illinois case, People ex rel. Ropac v. City of Edwardsville, 345 Ill.App.3d 414, 280 Ill.Dec. 350, 802 N.E.2d 275, 277 (2003), which stated that “the reasonableness or unreasonableness of the contiguity cannot be precisely determined and must be based on the facts of each case.” The court also found that the City annexed three separate parcels of land together. The first parcel is a ten-acre tract with 350 feet — its entire western border — adjoining the City. The court compared this parcel with that in Ropac, which had shared only 250 feet with the adjoining municipality and was determined to be contiguous. Id. at 278.

The court found that this parcel did' not constitute an invalid corridor because it was not a right-of-way, easement, or like entity. See § 171.031(11). The court noted that a court has held the legal requirement of contiguity was satisfied when virtually all of one border of one parcel abutted the existing municipal property and more than just the corner of the other parcel abutted existing municipal boundaries. See Sanford, 538 So.2d at 115. Because virtually the entire western boundary of the ten-acre parcel was coterminous with the City’s boundary, the annexation met the requirement that “a substantial part of a boundary” of the annexation territory be coterminous with part of the City’s boundary. The court found this annexation comparable to that in Sanford, where the court had concluded that the contiguity was met where “the annexed parcels touched or adjoined municipal territory in a reasonably substantial sense.” 538 So.2d at 115. The court below relied on Sanford to find that, because all 350 feet of the Gray parcel’s western boundary adjoined the City, the contiguity requirement was met.

However, the court acknowledged that the three owners submitted their annexation applications as a unified request to annex all the property together. Section 171.031(11) requires that “a substantial part of a boundary of the territory to be annexed by the ipunieipality [be] coterminous with a part of the boundary of the municipality.” Of the annexed property’s entire western border of 22,116 feet, only 350 feet (1.6%) is coterminous with the City boundary. The court departed from the essential requirements of law by focusing only on the Gray property to find that a substantial part of the boundary of the territory was contiguous. Section 171.031(11) requires that a substantial portion of a boundary of the territory annexed must be coterminous with the City’s boundary. We hold that 350 feet out of more than 20,000 cannot constitute a substantial portion of the western boúndary of the three parcels annexed together.

The City and owners attempted shoestring annexation by using a narrow corridor to connect the municipality to an outlying, noncontiguous area it desired to annex. See, e.g., Hughes v. Town of Oak Island, 158 N.C.App. 175, 580 S.E.2d 704, 709-10, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003); City of Rapid City v. Anderson, 612 N.W.2d 289, 294 (S.D.2000). Such annexation defeats the basic concept of a municipal corporation of unity and compactness.

The court departed from the essential requirements of law by improperly applying Sanford, to determine that a substantial portion of a boundary of the annexed territory was contiguous.

The. Pre-Annexation Agreement between the City and Leffler.

The City entered into a pre-annex-ation agreement, with Leffler before adopting the annexation ordinance. The agreement doubled as Leffler’s' annexation petition and was signed by the City before it passed the ordinance. The County argued that the agreement was void as an improper delegation of legislative authority and that, accordingly, the annexation was also void. The circuit court made no finding concerning the agreement and stated without explanation that the issue was not properly before the court. The court departed from the essential requirements of the law with that finding.

The agreement constituted the annexation application, and the certiorari petition challenged both the ordinance and agreement. As the annexation application, it was properly before the court in the certiorari challenge to the annexation. The City’s argument that the agreement was merely a contract that the court had no jurisdiction to review was incorrect.

The agreement imposed substantial obligations on the City. It required the City to prepare a Development of Regional Impact (“DRI”) review and amend its comprehensive plan to bring it in compliance with the provisions of the Local Government Planning and Land Development Act. The City was required to “vigorously defend all civil and administrative actions brought by others contesting the validity of the agreement.” The City could not annex any lands over 25 acres contiguous to Leffler’s property without amending the DRI review to include such land. Zoning must remain unchanged until the annexation becomes final and nonappealable. The City was to use its best efforts to provide for agricultural and conservation zoning until ownership of the property changed and the property was rezoned at the owner’s request. Existing uses shall be considered lawful prior nonconforming uses, notwithstanding rezoning or continuous, rotated, or relocated uses within the annexed property. The City must use best efforts to assist the owner in obtaining approval if the owner sought designation of the land as a Community Development District or Watershed Improvement District. Finally, the agreement permitted either party to seek specific performance of the agreement and damages upon default.

The County raised the general principle that a city’s legislative body cannot delegate its legislative function by investing unbridled discretion in a private property owner or administrative agency. See Amara v. Daytona Beach Shores, 181 So.2d 722, 724-25 (Fla. 1st DCA 1966). Similarly, an agreement effectively contracting away a city’s exercise of its police power is unenforceable. P.C.B. P’ship v. Largo, 549 So.2d 738, 741-42 (Fla. 2d DCA 1989) (holding that an owner that sought specific performance on a breach of contract was not entitled to recovery when it entered into a land disposition agreement with the city, in which the city would build a road facilitating development of the landowner’s property, but the city did not build the road). Because the zoning power is an aspect of the police power, a municipality may not enter into a private contract with a property owner for the amendment of a zoning ordinance subject to restrictions in an agreement to be executed between the city and owner. Hartnett v. Austin, 93 So.2d 86, 89 (Fla.1956) (stating that “[t]he adoption of an ordinance is the exercise of municipal legislative power” and that the city exercising this power “cannot legislate by contract”). Accordingly, contract zoning has long been disapproved in Florida because it contracts away the exercise of the entity’s police or legislative powers. Morgran Co. v. Orange County, 818 So.2d 640, 642-43 (Fla. 5th DCA 2002), rev. denied, 839 So.2d 699 (Fla.2003) (declining to enforce an agreement that obligated Orange County to support the private owner’s request for rezoning, even where a clause purported that the contract did not interfere with the county’s zoning authority); see also Chung v. Sarasota County, 686 So.2d 1358 (Fla. 2d DCA 1996) (holding that an improper settlement agreement to rezone was not cured by a provision requiring the parties to follow the formal requirements to rezone, because the county already obligated itself to a decision). This issue was not decided on the merits by the court. The court should have considered the agreement, which doubled as Leffler’s annexation application, and departed from the essential requirements of the law in failing to do so.

Accordingly, we QUASH the order of the circuit court that denied certiorari review and REMAND for further proceedings consistent with this opinion.

PALMER and MONACO, JJ., concur.

      . Although not originally joined as a respondent, the County amended its petition to add Leffler Co. as a respondent before the circuit court. This court also granted amicus curiae motions filed by the City of Lake Helen and the Environmental Council of Volusia and Flagler Counties.


author: KLEIN, J.

text:
    Jean-Heraux ULCENA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4094.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2006.
    Rehearing Denied April 27, 2006.
    Jean-Heraux Ulcena, Jr., Wewahitehka, pro se.
    No appearance required, for appellee.
   KLEIN, J.

We affirm a summary denial of appellant’s rule 3.850 motion for post-conviction relief. His motion raised a claim of newly discovered evidence based on our decision in Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), rev. denied, 892 So.2d 1014 (Fla.2005). In Roberts we held that a Miranda rights waiver form was insufficient because it failed to advise the defendant that he had the right to have counsel present during questioning. In the alternative, appellant argues that Roberts is retroactive.

Appellant’s conviction was affirmed on direct appeal in 1996, and his first rule 3.850 motion filed in 1998 was denied and affirmed. We are seeing a number of these appeals, in which the time has run for alleging ineffective assistance of counsel in failing to challenge a Miranda rights waiver. As is apparent from our opinion in Roberts, that decision involved nothing more than an application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to a confession. We can conceive of no circumstances under which Roberts could be the basis of a claim for post-conviction relief based on newly discovered evidence.

As to appellant’s claim that Roberts is retroactive, first Roberts did not change the law, and second, only decisions of the Florida Supreme Court or the United States Supreme Court can be retroactive in post-conviction proceedings. Witt v. State, 387 So.2d 922 (Fla.1980).

Accordingly, where the time has run for alleging ineffective assistance of counsel in failing to challenge the admission of a confession, Roberts provides no basis for post-conviction relief.

Affirmed.

GUNTHER and GROSS, JJ., concur.


text:
    Jeremy GERALD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-6166.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2006.
    Rehearing Denied April 13, 2006.
    Jeremy Gerald, pro se, petitioner.
    Charlie Crist, Attorney Generál, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Chandler v. Dugger, 634 So.2d 1066 (Fla.1994)(holding that habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on direct appeal); Gray v. Wainwright, 442 So.2d 312 (Fla. 1st DCA 1983)(holding that habe-as corpus is not a substitute for a direct appeal).

ERVIN, DAVIS and LEWIS, JJ., concur.


author: DAVIS, J. KAHN, C. J., PADOVANO, J.

text:
    CHECKERS RESTAURANT and Specialty Risk Services, Inc., Appellants/Cross-Appellees, v. Cheryl WIETHOFF, Appellee/Cross-Appellant.
    No. 1D04-193.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2006.
    Rehearing Denied April 10, 2006.

      Rusten C. Hurd of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.
    Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox of Fox & Loquasto, P.A., Tampa; and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.
   DAVIS, J.

In this workers’ compensation appeal, the E/C asserts that the JCC erred by concluding that the E/C, which had not denied compensability within 120 days of initially providing medical care, was es-topped from denying the claimant’s request for additional treatment including surgery, even though the JCC found that the claimant’s preexisting condition was the major contributing cause (MCC) of any need for further treatment or surgery. We agree with the E/C and reverse the JCC’s authorization of this additional medical care. Finding no merit to the claimant’s issues on cross-appeal, we affirm the JCC’s denial of other benefits.

Section 440.20(4), Florida Statutes, provides in relevant part:

... the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits .... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation ... waives the right to deny compensability ....

(emphasis added). In North River Ins. Co. v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996), a case which was decided en banc, this court recognized that there is a distinction between the concept of com-pensability and a worker’s entitlement to benefits as those terms are contemplated in section 440.20(4). The waiver provision of section 440.20(4) pertains solely to the concept of compensability. In failing to deny compensability, the E/C only admits that there was an industrial accident resulting in some injury to the worker. Other issues concerning the worker’s entitlement to benefits remain subject to challenge, including the extent of the compen-sable injury and the causal relationship between the compensable injury and the condition for which the worker seeks benefits.

In the present case, the claimant suffered an industrial accident which exacerbated a preexisting medical condition. The E/C immediately began providing medical care for the injured claimant. The claimant was seen by various doctors, and surgery was recommended. However, some of these doctors indicated that the claimant had reached maximum medical improvement with a 0% permanent impairment rating from the industrial accident. Several of the doctors also opined that the MCC of the claimant’s need for surgery was the preexisting condition, and not the industrial exacerbation. The E/C terminated the claimant’s benefits, asserting that the claimant was no longer entitled to indemnity benefits or medical treatment because she had returned to her pre-acci-dent state.

The claimant filed two petitions for benefits, both of which the E/C denied by maintaining that it had already furnished appropriate benefits. The claimant then filed a third petition, requesting further medical care with treatment including surgery. The E/C did not respond to this third petition.

After the final hearing the JCC found that the claimant’s compensable injury had resolved, but the JCC concluded that the E/C was estopped from denying the requested treatment and surgery. The JCC determined that the E/C’s actions did not constitute a deemed denial of the benefits, and the JCC found that the E/C violated the 120-day provision and was thereby precluded from denying responsibility for this medical care.

On appeal, the E/C contends that reversal is warranted because the claimant failed to prove that the industrial injury remains the MCC of her need for continuing medical treatment and surgery. The E/C further contends that the JCC erred in authorizing this medical care because, although section 440.20(4) barred the E/C from denying compensability after the expiration of the 120-day pay and investigate period, it did not preclude the E/C from challenging the claimant’s entitlement to benefits. We agree.

As explained in Wuelling, the section 440.20(4) waiver of the right to deny compensability does not necessarily establish an entitlement to benefits. Since Wuelling, however, cases such as Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002), and Hutchinson v. Lykes Smithfield Packing, 870 So.2d 144 (Fla. 1st DCA 2004), have at times blurred the distinction between compensability and entitlement to benefits. Other cases such as Bussey v. Wal-Mart Store # 725, 867 So.2d 542 (Fla. 1st DCA 2004), may have further clouded the application of section 440.20(4), in discussing the effect of an E/C’s failure to respond to a petition for benefits. Because of the apparent confusion in this area and the potential conflict in the application of this court’s decisions, the present case is being decided by this court en banc.

As the earlier en banc opinion in Wuell-ing explained, section 440.192(8), Florida Statutes, must be read in conjunction with section 440.20(4), with regard to the statutory waiver of the right to deny compensa-bility. Wuelling established that the recitation as to such a waiver in section 440.192(8) is merely a reiteration of the waiver provision in section 440.20(4), and that the failure to file a notice of denial in response to a claim under section 440.192(8) does not in itself result in a waiver. Instead, the waiver arises under section 440.20(4) when an E/C provides compensation or other benefits and does not deny compensability within 120 days of the initial provision of such compensation or benefits. And while an E/C’s failure to respond to a petition for benefits might be treated as an implicit denial of the petition for certain other purposes, an E/C’s failure to respond to a section 440.192 petition does not interrupt the 120-day period and does not avoid the section 440.20(4) waiver provision. Similarly, a section 440.192(8) notice of denial which challenges entitlement to a claimed benefit but does not dispute compensability (the occurrence of an industrial accident resulting in injury) will not avoid the section 440.20(4) waiver. As that statute indicates, it is the payment of compensation or provision of benefits that begins the 120-day period within which the E/C may admit or deny com-pensability. And although section 440.20(4) directs the E/C to provide written notice when it has elected to pay the claim pending further investigation, an E/C’s failure to provide such notice does not negate application of the section 440.20(4) waiver when the E/C does not deny compensability within 120 days of the initial provision of benefits. Bynum Transp., Inc. v. Snyder, 765 So.2d 752 (Fla. 1st DCA 2000).

The 120-day period under section 440.20(4) thus commenced in the present case upon the E/C’s initial provision of benefits. The JCC properly determined that the E/C’s failure to respond to the section 440.192 petition requesting medical treatment with surgery did not constitute a denial of compensability as contemplated under section 440.20(4). The JCC then properly determined that the E/C’s failure to deny compensability warrants the application of the section 440.20(4) waiver. However, the JCC improperly extended the scope of that waiver in precluding the E/C from challenging the claimant’s entitlement to the requested benefits.

Pursuant to section 440.20(4), the E/C is precluded from contending that there was no industrial accident resulting in injury. But section 440.20(4) does not preclude the E/C from challenging the claimant’s entitlement to benefits, by contending that the injuries resulting from the industrial accident were not the MCC of the claimant’s need for further treatment or surgery. Indeed, the JCC found that the claimant has reached maximum medical improvement with no permanent impairment rating, and that the' industrial injuries are no longer the MCC of any continuing need for treatment or surgery. These findings of the JCC are supported by competent, substantial evidence. Therefore, the claimant is no longer entitled to medical benefits. See § 440.09(l)(b), Fla. Stat.

To the extent that cases such as Collins, Hutchinson, and Bussey may reflect an approach inconsistent with the holdings in the present opinion, we recede from those cases and reaffirm the ruling in Wuelling as explicated herein. Accordingly, we conclude that the JCC erred in construing the waiver provision of section 440.20(4) to preclude the E/C’s challenge to the claimant’s entitlement to benefits. The JCC’s authorization of additional medical care is therefore reversed, and this ease is remanded for further consideration consistent with this opinion. We otherwise affirm the JCC’s order.

AFFIRMED, in part, REVERSED, in part, and REMANDED.

ALLEN, WOLF, BROWNING, . LEWIS, POLSTON, HAWKES and THOMAS, JJ., concur.

KAHN, C. J., concurs in result with written opinion in which BARFIELD, J., concurs.

PADOVANO, J., concurs in result with written opinion in which WEBSTER, BENTON and VAN NORTWICK, JJ., concur.

KAHN, C. J.,

concurring in result.

I would simply decide this case on its facts by applying the teachings of Bussey v. Wal-Mart Store # 725, 867 So.2d 542 (Fla. 1st DCA 2004) and North River Ins. Co., v. Wuelling, 683 So.2d 1090 (Fla. 1st DCA 1996). Accordingly, I concur in the result reached by the majority.

PADOVANO, J.

concurring in result.

I agree with the decision the court has made on the facts of this case, but I am unable to join in the majority opinion, because the general rule stated in the opinion appears to limit the operation of the waiver provision in section 440.20(4) in a way that was not intended by the Legislature.

The majority opinion states that a failure to deny compensability “only admits that there was an industrial accident re-suiting in some injury to the worker.” The opinion goes on to explain that the employer and its insurance carrier may still argue that there was no “causal relationship between the compensable injury and the condition for which the worker seeks benefits.” In my view, this statement is far too broad. A literal reading of the statement negates the most important part of the statutory waiver provision (that the condition for which payment is being made was caused by the accident) and leaves only an admission that the injured worker was, in fact, an employee who was injured on the job.

In the present case, the employer and carrier are merely arguing that there is no causal relationship between the industrial accident and a subsequent medical condition that is alleged to require a particular benefit. As the majority opinion states, the claimant is seeking benefits for “additional treatment including surgery.” It would be logical to conclude that a claim arising after the admission of compensability is not within the scope of the waiver, but the majority opinion appears to go beyond that simple proposition. My concern is that the opinion will be construed to allow an employer or carrier to reopen a debate about causation in a case that does not involve a new claim for benefits.

While it is certainly true that an employer is not bound to pay for a medical condition that develops or is discovered after the expiration of the time to deny com-pensability, I find nothing in the statute that would allow the employer or carrier to assert an untimely causation argument as to a condition that was known to exist when payment was made under section 440.20(4). The statute gives the employer and carrier 120 days to investigate the claim, and causation is surely one of the issues that should be investigated during that time.

      . See McDonald’s Restaurant # 7160 v. Montes, 736 So.2d 768 (Fla. 1st DCA 1999); Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699 (Fla. 1st DCA 1999).


text:
    Jason E. CARR, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3686.
    District Court of Appeal of Florida, Second District.
    Feb. 22, 2006.
    Rehearing Denied April 17, 2006.
   PER CURIAM.

Jason E. Carr appeals the summary dismissal of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging four claims for relief. We affirm because Carr’s- rule 3.850 motion was untimely. Carr filed his rule 3.850 motion more than two years after his April 19, 2002, judgment and sentence became final. See Fla. R.Crim. P. 3.850(b). Carr failed to allege any exceptions to the two-year time limitation provided in rule 3.850.

Affirmed.

KELLY, WALLACE, and LaROSE, JJ., Concur.