author: MURDOCK, Judge.

text:
    OVERNITE TRANSPORTATION COMPANY v. J.R. McDUFFIE.
    2030367.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2005.
    Certiorari Denied Jan. 20, 2006 Alabama Supreme Court 1050267.

      Joseph H. Driver and Brett A. Ross of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for appellant.
    Jonathan W. Gathings of Jonathan W. Gathings & Associates, Birmingham, for appellee.
   MURDOCK, Judge.

Overnite Transportation Company (“Ov-ernite”) appeals from a judgment of the Jefferson Circuit Court in a case brought under the Workers’ Compensation Act, Ala.Code 1975, § 25-5-1 et seq. The primary issue presented is whether the trial court erred in requiring Overnite to pay for certain medical treatments for J.R. McDuffie. Overnite also argues that the trial court’s determination that it was in contempt, and its award to McDuffie of $5,000 in attorney fees based on that finding, was in error.

McDuffie originally filed this case on October 10, 1997, as a claim for benefits under the Workers’ Compensation Act because of an alleged injury he sustained arising out of and in the course of his employment with Overnite. During the pendency of that lawsuit, McDuffie requested that Overnite provide him a list of four doctors from which to choose a new treating physician, see § 25-5-77(a), and, after receiving the list from Overnite, he selected Dr. John Hackman from the list as his authorized treating physician.

On February 10, 2000, Dr. Hackman sent a letter to McDuffie referring him to Dr. Edwin Kelsey for pain management. In pertinent part, that letter read:

“This letter will serve as a referral to Dr. Edwin Kelsey, ... for pain management. ...
“Because of your continuing discomfort, you have requested referr[al] to Dr. Edwin Kelsey. You can use this letter as a referral and go ahead and schedule an appointment to see Dr. Kelsey.”

On February 24, 2000, counsel for Over-nite wrote to counsel for McDuffie regarding McDuffie’s request for pain management. Counsel for Overnite wrote that it did not appear to him that the pain management McDuffie sought was related to his work injury. Counsel questioned the validity of Dr. Hackman’s referral to Dr. Kelsey, describing the referral as having been done in a “backhanded sort of way.” In spite of this, counsel wrote, Overnite had agreed to allow McDuffie to obtain pain-management treatment. Overnite did not authorize McDuffie to see Dr. Kelsey, however. Instead, it authorized him to see Dr. Ronald Moon. Counsel for Overnite concluded his February 24, 2000, letter: “I emphasize that ... the treatment by Dr. Edwin Kelsey ... is [not] authorized by Overnite.”

Pursuant to Dr. Hackman’s referral, and in spite of the letter from counsel for Overnite, McDuffie began seeing Dr. Kelsey for pain management. Dr. Kelsey prescribed medication for McDuffie, for which Overnite paid.

The trial court approved a settlement of the case on October 10, 2000. In pertinent part, the settlement provided:

“The parties have made known to the Court that they have reached a compromised agreement to settle this claim, subject to the approval of this Court, for the sum of $95,000.00 as a full and complete settlement of any and all claims for workers’ compensation benefits, including temporary total disability and permanent partial or permanent total disability benefits with the defendant remaining liable to the plaintiff for future medical benefits as required, by the Workers’ Compensation Act of Alabama which was in effect at the time of said accident.”

(Emphasis added.)

In August 2001, Overnite, apparently realizing for the first time that it had been paying for medications prescribed to McDuffie by Dr. Kelsey, stopped paying for those medications and for travel expenses associated with treatment by Dr. Kelsey. Overnite also denied McDuffie’s claim for a personal mobility vehicle that Dr. Kelsey had prescribed for him. In a letter from Overnite’s counsel to McDuf-fie’s counsel dated November 12, 2001, counsel wrote that “Overnite Transportation is not obligated to provide Mr. McDuf-fie with the motorized scooter which he believes he requires because it has not been indicated by an approved physician.”

On May 2, 2003, McDuffie filed a motion to require Overnite to pay the medical costs and the travel costs (i.e., mileage reimbursement) associated with the treatment he had received from Dr. Kelsey. McDuffie thereafter filed his brief in support of the motion, in which he asked the court to hold Overnite in contempt for allegedly violating the terms of the parties’ settlement agreement by having failed to pay for those medical costs and to order Overnite to pay a $5,000 attorney fee.

Overnite’s brief in opposition to McDuf-fie’s motion asserted that Overnite should not have to pay for treatment that it did not authorize and that the assessment of an attorney fee was unjustified because there was no evidence indicating that Ov-ernite had acted in bad faith or had willfully disobeyed a court order.

The trial court held a hearing on McDuf-fie’s motion and, on October 14, 2003, entered an order requiring Overnite to pay for the medical and travel expenses sought by McDuffie (including the cost of the personal mobility vehicle), finding Overnite in contempt for violating the order approving the settlement agreement and ordering Overnite to pay $5,000 in attorney fees to McDuffie.

After Overnite filed a motion to alter, amend, or vacate the judgment, the trial court entered a revised order amending the language of the first order by: (1) deleting the finding of contempt; (2) deleting the $5,000 attorney-fee award; and (3) allowing McDuffie’s counsel 30 days to submit proof of a reasonable attorney fee. Overnite appealed from this revised order.

Thereafter, this court determined that the trial court’s order was not a final, appealable order under Rule 54(b), Ala. R. Civ. P., in that the order failed to resolve all of the claims presented by McDuffie. Specifically, the trial court’s order, as amended, failed to address McDuffie’s claim that not only should Overnite be responsible for the cost of his treatment by Dr. Kelsey, but that Overnite also should be held in contempt for having refused to accept responsibility for that cost. Accordingly, this court reinvested the trial court with jurisdiction to enable it to address the contempt claim. In response, the trial court entered an amended order holding Overnite in contempt and awarding McDuffie $5,000 in attorney fees as a sanction for that contempt.

On appeal, Overnite contends that the trial court erred when it ordered Overnite to pay McDuffie’s unpaid medical expenses related to his treatment by Dr. Kelsey. Overnite also contends that the trial court abused its discretion in holding it in contempt for not having paid those expenses.

Our standard of review in workers’ compensation cases was prescribed by the Legislature in Ala.Code 1975, § 25-5-81(e)(2). We recently set forth that standard, as well as the other applicable presumptions:

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25 — 5—81(e)(2), Ala.Code 1975. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts ‘in the light most favorable to the findings of the trial court.’ Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala.Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(l), Ala.Code 1975).”

Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005). Additionally, we review a finding of civil contempt under an abuse-of-discretion standard. Gilbert v. Nicholson, 845 So.2d 785, 791 (Ala.2002).

With respect to the trial court’s order requiring it to pay McDuffie’s unpaid medical expenses related to his treatment by Dr. Kelsey, Overnite argues that, under Ala.Code 1975, § 25-5-77(a), an employer is only liable to pay for medical treatment rendered by a treating physician that it has authorized. Because it expressly refused to authorize McDuffie’s treatment by Dr. Kelsey, Overnite argues that it cannot be required to pay for that treatment or for the medications prescribed by Dr. Kelsey.

Section 25-5-77(a) indicates that the employer shall make the initial choice of a physician who shall be authorized to treat the employee. The statute also provides that the employer shall be responsible for paying the costs of “reasonably necessary” medical treatments for the employee. Accordingly, the employer is responsible for paying for the treatment choice made by the authorized treating physician so long as that choice falls within the parameters of what is “reasonably necessary” to treat the employee. See Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002). This principle has been applied repeatedly in cases in which the “treatment” recommended by the authorized physician is a treatment to be administered by a second physician.

For example, in Jasper Community Hospital, Inc. v. Hyde, 419 So.2d 594 (Ala.Civ.App.1982), the employee’s Alabama physician referred her to the Campbell Clinic in Memphis, Tennessee. This court concluded that the employee’s “treatment at the Campbell Clinic in Memphis, Tennessee was authorized by the [employer]. The record clearly indicates that Dr. Russell[, the employee’s physician,] referred her there for diagnosis and treatment. Since we have found that Dr. Russell’s treatment of [the employee] was authorized, we have no difficulty in determining that other reasonably necessary medical treatment prescribed by him was also authorized.” 419 So.2d at 597.

To similar effect was this court’s holding-in Blue Bell, Inc. v. Nichols, 479 So.2d 1264 (Ala.Civ.App.1985). As this court explained:

“[W]e find that the evidence would have supported a holding that the employee was given the impression that he had the authority from [the employer] to at least see Dr. Pyle, who referred him to Dr. Hatchett. Since the consultation with Dr. Pyle was authorized [by the employer], we have no difficulty in determining that other reasonably necessary medical treatment consisting of the referral of the patient to Dr. Hatchett and the subsequent hospitalization were also authorized.”

479 So.2d at 1267.

In Genpak Corp. v. Gibson, 534 So.2d 312 (Ala.Civ.App.1988), the employer authorized the employee to be treated by Dr. Frank Gogan, a general practitioner. Id. Dr. Gogan admitted the employee into the hospital so that a myelogram could be performed on her. Id. The employer gave the employee the names of three doctors who it authorized to perform the myelo-gram. Id. at 313-14. Before the employee’s admittance to the hospital, the employer had informed both the employee’s attorney and Dr. Gogan that Dr. Jackson Bostwick was not acceptable to perform the myelogram. Id. at 314. In spite of the employer’s unequivocal and express refusal to authorize treatment by Dr. Bo-stwick, Dr. Gogan asked Dr. Bostwick to perform the myelogram on the employee, which he did. Id. at 314.

After a trial on the employee’s workers’ compensation claim, the trial court found the employee totally and permanently disabled and, among other things, ordered the employer to pay $305 to reimburse the employee for the treatment that Dr. Bo-stwick had provided to the employee. Id. at 313. On appeal, the employer argued that that award was improper because the employer had not authorized the employee’s treatment by Dr. Bostwick and, in fact, had expressly refused to authorize treatment by him. Id. This court disagreed. Citing Jasper Community Hospital and Blue Bell, Inc., this court held as follows:

“Since Dr. Gogan, the employer’s physician, admitted the employee into the hospital and subsequently requested Dr. Bostwick to perform the myelogram, we have no difficulty in determining that the myelogram performed by Dr. Bo-stwick was authorized.”

534 So.2d at 314.

As this court stated more recently in Ex parte Alabama Power Co., 863 So.2d 1099, 1102 (Ala.Civ.App.2003), albeit in the context of a referral for a functional capacities evaluation, “the [authorized treating] physician is empowered under the Act to treat the employee for so long as is reasonably necessary and to refer the employee to other medical providers for reasonably necessary treatment.” (Emphasis added.) See generally City of Auburn v. Brown, 638 So.2d 1339, 1341 (Ala.Civ.App.1993) (“We hold that, as a general rule, the employer may not dictate to the employee that he may not have the medical treatment recommended by his authorized, treating physician.”).

The employer in this case authorized Dr. Hackman to serve as McDuffie’s treating physician, and the trial court had substantial evidence before it indicating that Dr. Hackman had referred McDuffie to Dr. Kelsey for pain management. Consistent with this court’s holding in Genpak and the other cases cited above, because the treating physician prescribed treatment by Dr. Kelsey, and because there is no evidence indicating that that treatment did not fall within the parameters of what was “reasonably necessary” as contemplated by § 25-5-77(a), that treatment was authorized under the Workers’ Compensation Act.

Overnite also cites Ala. Admin. Code (Dep’t of Indus. Relations) Rule 480-5-5-.12 for the proposition that an employer or its agent has the right to “preapprove” referrals of an employee to another physician. Rule 480-5-5-.12, reads as follows:

“The employer’s authorized treating physician (other than emergency medical services) shall be the physician of record for attending or referral purposes. All referrals shall be pre-ap-proved by the employer/agent. The employer/agent shall keep all interested parties involved in the compensable case informed of any authorized change of treating physician.”

Overnite’s reliance on this provision is without merit.

Rule 480-5-5-.12 was promulgated in 1996, purportedly on the authority of § 25-5-293, Ala.Code 1975. There is no provision in § 25-5-293, however, that modifies the various provisions of § 25-5-77(a) that are noted at the outset of this analysis and that provide the underpinning for the holdings in the above-discussed cases. See generally Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042 (noting that the 1992 amendments to the Workers’ Compensation Act, see Ala. Acts.1992, Act No. 92-537, made no changes in the language of § 25-5-77(a) pursuant to which an employee has the right to reasonably necessary medical treatments). Likewise, there is no provision in § 25-5-293 that in any respect addresses, much less modifies, those holdings. The statute merely provides that an insurance carrier and a self insured “may” adopt utilization review, see § 25-5-293(g), Ala.Code 1975, and that, if there is to be a utilization review or a “medical necessity determination” it “shall only be conducted under and in accordance with policies, guidelines, or regulations which have been jointly approved by the Workers’ Compensation Medical Services Board and the director under the provisions of Section 25-5-312, as and when such policies, guidelines, criteria, and regulations are adopted in a final and effective form pursuant to the Alabama Administrative Procedure Act,” see § 25-5-293(k), Ala.Code 1975. Nothing in § 25-5-293(g), § 25-5-293(k), nor any other portion of the 1992 amendments to the Workers’ Compensation Act, however, purports to give an employer direct authority to “preapprove” or reject referrals made by an authorized treating physician.

“An administrative regulation must be consistent with the statute pursuant to which it was promulgated; it cannot usurp legislative power, and may neither subvert nor enlarge upon statutory policy. E.g., Ex parte Jones Mfg. Co., 589 So.2d 208 (Ala.1991); Ex parte State Dep’t of Human Res., 548 So.2d 176 (Ala.1988) (regulation must be consistent with the statute under which it is promulgated); Ex parte City of Florence, 417 So.2d 191 (Ala.1982) (administrative agency cannot usurp legislative powers or contravene statutes); Alabama State Milk Control Bd. v. Graham, 250 Ala. 49, 33 So.2d 11 (1947) (regulation cannot subvert or enlarge upon statutory policy). See also Terminato v. Pennsylvania Nat’l Ins. Co., 538 Pa. 60, 72, 645 A.2d 1287, 1293 (1994) (rejecting as inconsistent with the statute the implication that judicial review could not be obtained unless an employee first sought peer-review-organization (PRO) reconsideration when the regulation at issue merely stated that the employee could seek judicial relief after seeking PRO reconsideration).”

Ex parte Southeast Alabama Med. Ctr., 835 So.2d at 1052 n. 10.

Under § 25-5-77(a) and the above-discussed cases interpreting that section, an employee is entitled to reimbursement for reasonably necessary treatment from a physician or other medical provider to whom he or she has been referred by the initial, authorized treating physician. Dr. Hackman, the authorized treating physician, referred McDuffie to Dr. Kelsey for further treatment. Nothing in the record before us indicates that the treatment thus prescribed was not reasonably necessary, or that Overnite’s decision to refuse payment for that treatment was made pursuant to an approved utilization-review program or medical-necessity-determination process as contemplated by § 25-5-293(k). We therefore are clear to the conclusion that McDuffie is entitled to reimbursement under the Act for treatment by Dr. Kelsey in this case. As to this issue, therefore, the trial court’s judgment is due to be affirmed.

Although we are clear to the foregoing conclusion, we likewise are clear to the conclusion that Overnite’s position to the contrary was not an unreasonable one and, thus, was not an appropriate basis for a finding of contempt. We first note that the trial court’s order that formed the basis for the contempt finding did not specifically require Overnite to pay for the services of Dr. Kelsey. If it had, we would have a different case than the one we have before us.

Instead, the trial court’s order at issue merely required Overnite to pay for medical treatments “as required by the Workers’ Compensation Act.” While, based on the statutory provisions and caselaw discussed above, McDuffie is due to prevail on the issue of reimbursement for treatment by another physician to whom he has been referred by his authorized treating physician, Overnite’s position to the contrary cannot be viewed as contemptuous, especially in light of the promulgation of Rule 480-5-5-.12. Indeed, our review of existing caselaw indicates that this is the first decision of either this court or our Supreme Court that addresses Rule 480-5-5-.12.

Rule 70A, Ala. R. Civ. P., governs contempt proceedings that arise out of civil actions. Civil contempt is defined by that rule as the “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Rule 70A(a)(2)(D), Ala. R. Civ. P. (emphasis added). Our Supreme Court, in Travelers Indemnity Co. of Illinois v. Griner, 809 So.2d 808, 814 (Ala.2001), characterized its decision 10 years earlier in Ex parte Cow gill, 587 So.2d 1002 (Ala.1991), as holding “that the [trial] court, in the exercise of its equitable powers, could hold a party in contempt upon a finding that ‘the employer willfully and contumaciously refused’ ” to follow the trial court’s order.

We conclude that the trial court abused its discretion in holding Overnite in contempt. The record does not support a conclusion that Overnite willfully or contumaciously violated the trial court’s previous order.

The trial court’s judgment is affirmed insofar' as it requires Overnite to pay for the treatment of McDuffie by Dr. Kelsey. The trial court’s judgment, insofar as it holds Overnite in contempt and, based thereon, orders Overnite to pay $5,000 in attorney fees to McDuffie, is reversed, and the cause is remanded for the entry of an order consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . Compare Ex parte Brookwood Med. Ctr., Inc., 895 So.2d 1000, 1007 (Ala.Civ.App.2004) (Murdock, J., concurring in the result) (noting that the trial court in that case was not justified in fashioning relief “for the employee on the ground that the medical treatment being offered by ... the employee's ... authorized treating physician” and the pain specialist to whom the authorized treating physician had already referred the patient had not been shown in that case to fall outside "the parameters of what was 'reasonably necessary,’ within the meaning of § 25-5-77(a)” to treat the employee).

      . This case does not present the arguably different question of whether McDuffie would be entitled to reimbursement of the cost of being treated by a physician to whom Dr. Kelsey, in turn, might have referred him.

      . In pertinent part, § 25-5-293(g) states that “insurance carriers and self-insurers, individual and group, may have utilization review and medical bill screenings” and that "[a]ll insurers, claims adjusters, self-administered employers, and any entity involved in the administration or payment of workers’ compensation claims may, but are not required to, implement utilization review and bill screening for health services provided to employees covered under this article.”

      . Of course, an employer may refuse to pay for treatment of an employee by a physician to whom the employee has been referred on the ground that that treatment is not "reasonably necessary” if it does so pursuant to a utilization review or medical-necessity determination conducted in accordance with the regulations contemplated by § 25 — 5—293 (k). See Ex parte Southeast Alabama Med. Ctr., 835 So.2d at 1050 (explaining that, when the ground for an employer's refusal to pay for a medical treatment "is an employer’s decision that a treatment recommended by an authorized physician is not reasonably necessary, the employer may properly assert that decision only if the employer has first followed, and has made that decision based upon,” a utilization review or medical-necessity determination conducted under and in accordance with regulations promulgated pursuant to § 25-5-293(k)). That is not the type of determination at issue in the present case. Instead, the employer takes the position that Rule 480-5-5-.I2 gives it a direct right, apart from the use of any approved utilization-review program or medical-necessity-determination process to refuse to pay for (i.e., refuse to "preapprove”) the treatment of the employee by the physician to whom he has been referred by the initial authorized treating physician.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    REDMAN HOMES, INC. v. Thomas SURTEES, in his official capacity as commissioner of the Alabama Department of Revenue.
    2031079.
    Court of Civil Appeals of Alabama.
    Nov. 18, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1050316.

      Matthew H. Lembke and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham; and William C. McGowin of Bradley Arant Rose & White, LLP, Montgomery, for appellant.
    Troy King, atty. gen., and Susan E. Kennedy of Slate Kennedy, LLC, Montgomery, and Pamela B. Slate of Slate Kennedy, LLC, Birmingham, for appellee.
   BRYAN, Judge.

Redman Homes, Inc., appeals a judgment dismissing its claims against Thomas Surtees, in his official capacity as commissioner of the Alabama Department of Revenue, seeking refunds of franchise taxes Redman Homes paid for the tax years 1994 through 1997 and a declaration that it was entitled to those refunds. We affirm.

In May 1996, Gladwin Corporation filed a class action (“the Gladwin action”) in the Montgomery Circuit Court, alleging that Alabama’s franchise-tax statutes were unconstitutional and seeking refunds of franchise taxes collected by the State of Alabama from members of a putative class that included Redman Homes. Neither Gladwin Corporation nor Redman Homes had sought a refund through the administrative remedy afforded by the Alabama Taxpayer’s Bill of Rights, § 40-2A-1 et seq., Ala.Code 1975 (“the TBOR”), before the filing of the Gladmn action. The Gladwin action was stayed until a similar action filed by South Central Bell Telephone Company was adjudicated. Eventually, in 1999, in an appeal of South Central Bell’s action, the United States Supreme Court held Alabama’s franchise-tax statutes unconstitutional. South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 119 S.Ct. 1180, 143 L.Ed.2d 258 (1999).

In June 2001, the circuit court entered a class-certification order in the Gladwin action. The then commissioner appealed the class-certification order to the Alabama Supreme Court. In Patterson v. Gladwin Corp., 835 So.2d 137, 154 (Ala.2002), the supreme court held that, because the taxpayers in the Gladwin action had not sought their refunds through the administrative remedy afforded by the TBOR before the filing of the Gladmn action, the Gladmn action constituted a direct action against the State of the type prohibited by § 14, Ala. Const.1901. The supreme court further held that, because the Gladwin action was a prohibited direct action against the State, the circuit court lacked subject-matter jurisdiction to entertain the Gladivin action. Accordingly, the supreme court dismissed the Gladwin action.

In January 2001, before the circuit court certified the class in the Gladwin action, Redman Homes, pursuant to the TBOR, filed refund petitions with the Alabama Department of Revenue, seeking refunds of the franchise taxes it had paid for the tax years 1994 through 1999. The petitions were deemed denied by operation of law when the Department did not respond to them within six months. In October 2001, before the Alabama Supreme Court issued its opinion in Patterson v. Gladwin Corp., Redman Homes filed the action now before us in the Montgomery Circuit Court to appeal the denial of its petitions by the Department and to seek a judgment declaring that it was entitled to refunds of the franchise taxes it had paid for the tax years 1994 through 1999.

In July 2002, the circuit court appointed a special master to hear matters in pending actions involving claims for franchise-tax refunds. The special master chose certain threshold legal issues applicable to numerous actions for initial consideration. One of those issues was whether the Glad-win action had tolled the time for the members of the putative class in that action to file refund petitions with the Department pursuant to the TBOR. The parties chose Redman Homes’ action as a test case on that issue. After receiving briefs from the parties, the special master filed a recommendation that, in pertinent part, stated:

“[Numerous taxpayers failed to file their petition for refund with the Department of Revenue within the time prescribed by the TBOR. The TBOR delineates a two-step process through which a taxpayer may request a refund for ‘any overpayment of tax ... or concerning any refund which the department is required to administer.’ Ala. Code § 40-2A-7(c)(l). A taxpayer must first petition the Department for a refund within ‘three years from the date the return was filed or ... two years from the date of the payment of the tax, whichever is later.’ § 40-2A-7(c)(2). Then, if the Department denies the refund, the taxpayer may appeal to the Administrative Law Division or to the Circuit Court ‘within two years of the date the petition was denied.’ § 40-2A-7(c)(5). Ordinarily, a tardy petition filed with the Department deprives the Circuit Court of jurisdiction. Here, the taxpayers assert that the TBOR’s administrative deadline for filing a petition for refund with the Department was tolled by the pendency of Gladwin. ...
“In Redman Homes, the plaintiff filed petitions] for a refund with the Department of Revenue for franchise taxes paid for tax years 1994, 1995,1996,1997, 1998 and 1999. From the taxpayer’s pleading!,] it appears that the petitions were filed on January 31, 2001, at the earliest.
“The petitions appear to have been filed within three years of the timely filing of the 1998 and 1999 returns on September 15 of 1998 and 1999. Accordingly, those petitions appear to be unaffected by any tolling issue. The tolling issue relates to the claims for years 1994, 1995, 1996 and 1997. It is clear that, absent tolling by Gladwin, which was filed in 1996, the petitions for refund were untimely. The Court should enter an Order finding that the Gladwin class action did not toll the statutory requirements for filing a petition for refund with the Department of Revenue. The time limitations found in [the TBOR] cannot be tolled by Rule 23[, Ala. R. Civ. P.,] as taxpayers suggest, because Alabama courts have long held that the [Alabama Rules of Civil Procedure] do not apply to administrative proceedings governed by statute .... Rules 1 and 81[, Ala. R. Civ. P.]; Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977); State v. Ladner [&] Co., Inc., 346 So.2d 1160 (Ala.Civ.App.1977). Even if the [Alabama Rules of Civil Procedure] could apply to the time limitations in [the] TBOR, those time limitations are jurisdictional and cannot be equitably tolled by the filing of a class action complaint. Patterson v. Gladwin Corp., 835 So.2d 137 (Ala.2002) cert. denied[, 537 U.S. 974,] 123 S.Ct. 436 (2002); Mitchell v. State, [supra ]; and State v. Ladner [&] Co., Inc., [supra]. As was expressly recognized by the Alabama Supreme Court, the time limitations cannot be tolled because ‘[t]he TBOR is jurisdictional on its face.’ Patterson v. Gladwin Corp., 835 So.2d 137 (Ala.2002) cert. denied [, 537 U.S. 974,] 123 S.Ct. 436 (2002).... The claims of Redman Homes for tax years 1994-1997 are to be dismissed for lack of subject matter jurisdiction and the Court should entertain a permissive appeal pursuant to Rule 5[, Ala. R.App. P.,] if requested by the parties.”

On February 13, 2004, the circuit court adopted the special master’s recommendation and dismissed Redman Homes’ claims regarding the franchise taxes it had paid for the tax years 1994 through 1997. On August 11, 2004, the circuit court made the dismissal a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Redman Homes then timely appealed to this court.

On appeal, Redman Homes argues that the circuit court erred in dismissing its claims regarding the franchise taxes it had paid for the tax years 1994 through 1997 because, Redman Homes says, the class-action tolling rule tolled the statute of limitations for it to file petitions for refunds with the Alabama Department of Revenue pursuant to the TBOR. However, Redman Homes has not cited any legal authority holding that the filing of a class action will toll a statute of limitations for instituting an administrative proceeding when the members of the putative class know or should know that the administrative proceeding constitutes the exclusive method of obtaining the relief they seek. In Patterson v. Gladwin Corp., supra, the Alabama Supreme Court explicitly held that a reasonable taxpayer would know that the TBOR afforded the exclusive method of obtaining a refund of franchise taxes collected pursuant to an unconstitutional statute. 835 So.2d at 144-45.

Redman Homes argues that, despite the nonexistence of precedent squarely supporting its position, this court should nonetheless hold that the class-action tolling rule applies to Redman Homes’ petitions seeking refunds pursuant to the TBOR because, it says, the circuit court’s holding that the class-action tolling rule does not apply constitutes a “bait and switch” of the type prohibited by Reich v. Collins, 513 U.S. 106, 115 S.Ct. 547, 130 L.Ed.2d 454 (1994). However, the holding of the Alabama Supreme Court that a reasonable taxpayer would know that the TBOR constituted the exclusive method for obtaining a franchise-tax refund also refutes this bait-and-switch argument.

In Reich v. Collins, supra, the United States Supreme Court reviewed a decision of the Georgia Supreme Court that had affirmed the dismissal of Reich’s claim seeking a refund of income taxes the State of Georgia had collected pursuant to a statutory scheme that had subsequently been held unconstitutional. The Georgia Supreme Court had affirmed the dismissal of Reich’s claim on the ground that Georgia’s tax-refund statute, the principal legal basis of Reich’s claim, did not apply when a taxpayer sought to recover a refund of taxes collected pursuant to a statute that was later held unconstitutional. Georgia’s tax-refund statute provided that “[a] taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from him under the laws of the state, whether paid voluntarily or involuntarily. ...” Ga.Code Ann. § 48-2-35(a) (Supp.1994) (emphasis added). Reversing the Georgia Supreme Court, the United States Supreme Court explained:

“A State is free ... to reconfigure its remedial scheme [regarding tax refunds] over time, to fit its changing needs. Such choices are generally a matter only of state law.
“But what a State may not do, and what Georgia did here, is to reconfigure its scheme, unfairly, in mid-course — to ‘bait and switch,’ as some have described it. Specifically, in the mid-1980’s, Georgia held out what plainly appeared to be a ‘clear and certain’ postdeprivation remedy, in the form of its tax refund statute, and then declared, only after Reich and others had paid the disputed taxes, that no such remedy exists....
“... [T]here [cannot] be any question that, during the 1980’s, prior to [the Georgia Supreme Court’s holding that the tax-refund statute did not apply in Reich’s case], Georgia did appear to hold out a ‘clear and certain’ postdeprivation remedy. To recall, the Georgia refund statute says that the State ‘shall ’ refund ‘any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from [a taxpayer] under the laws of this state, whether paid voluntarily or involuntarily....’ Ga.Code Ann. § 48-2-35(a) (Supp.1994) (emphasis added). In our view, the average taxpayer reading this language would think it obvious that state taxes assessed in violation of federal law are ‘illegally assessed’ taxes....
“Respondents, moreover, do not point to any Georgia Supreme Court cases prior to [the Georgia Supreme Court’s decision holding that the tax-refund statute did not apply to Reich’s claim] that put any limiting construction on the statute’s sweeping language; indeed, the cases we have found are all entirely consistent with that language’s apparent breadth.”

513 U.S. at 111-12, 115 S.Ct. 547.

In the case now before us, Redman Homes argues that the circuit court, by holding that the class-action tolling rule did not toll the statute of limitations for it to file petitions with the Department of Revenue pursuant to the TBOR, in effect eliminated a remedy that Alabama had held out as being available, i.e., the remedy of suing the State for a refund of franchise taxes in a class action and then, if the class action is held defective, seeking a refund under the TBOR. However, in holding in Patterson v. Gladwin Corp. that a reasonable taxpayer would know that the TBOR constituted the exclusive remedy for obtaining a refund of franchise taxes, 835 So.2d at 144-45, the Alabama Supreme Court implicitly held that the State of Alabama had not held out a class action as being available as a remedy for obtaining a franchise-tax refund. Therefore, Redman Homes’ bait-and-switch argument has no merit.

Thus, Redman Homes has neither cited a legal precedent squarely holding that the class-action tolling rule applies in the situation presented by the case now before us nor presented a compelling rationale supporting the application of the class-action tolling rule in the situation presented by the case now before us. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

PITTMAN and MURDOCK, JJ„ concur.

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

CRAWLEY, P.J., concurs in the result only, without writing.

      . Indeed, Redman Homes has not cited any legal authority holding that the class-action tolling rule would toll any administrative statute of limitations. The purpose of the class-action tolling rule is to avoid the filing of multiple lawsuits that would ultimately be unnecessary if the class action is upheld. See White v. Sims, 470 So.2d 1191, 1193 (Ala.1985) (" 'The principal function of the class action — to avoid multiplicity in filing suits, motions and papers — will be defeated if the statute of limitations is not tolled in favor of the plaintiffs.' ” (emphasis added) (quoting First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So.2d 727, 729 (Ala.1981))). Had the legislature intended that the class-action tolling rule apply to the statute of limitations provided by the TBOR, it could have so provided. It did not do so. See § 40-2A-7(c)(2), Ala.Code 1975.


author: PER CURIAM. BASCHAB, Judge,

text:
    Robert UPTON v. STATE.
    CR-03-1207.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2005.
    Rehearing Denied April 22, 2005.
    Certiorari Quashed Jan. 20, 2006 Alabama Supreme Court 1041146.

      Rachel Murphy Morgan, Huntsville, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Robert Upton, was found guilty of felony driving under the influence (case no. CC-03-330). He also was found guilty of resisting arrest, failure to drive in a single lane, and failure to drive on the right side of the road (case no. CC-03-331]. The trial court sentenced him to six years’ imprisonment on the DUI conviction and ordered him to complete a substance-abuse program and to pay a $5,000 fine, a $50 crime victims’ assessment, and court costs. The court sentenced him to 90 days’ imprisonment for the resisting-arrest conviction, to run concurrently with the DUI sentence. The court ordered Upton to pay a $50 fine for each of the two driving infractions, as well as a $25 crime victims’ assessment and court costs in the latter case.

The State’s evidence tended to show as follows: On December 4, 2002, Decatur police officer Joe Renshaw received a report that a person was driving recklessly. He followed the reported vehicle for several blocks and watched it drift into the left turn lane several times and travel on the wrong side of the road. Renshaw activated his blue lights, but the driver did not stop. He then activated his siren, but the driver proceeded an additional half block before pulling into a driveway and parking halfway on the lawn. According to the officer, the driver, Robert Upton, had the odor of an alcoholic beverage on his breath; his speech was slurred; and his eyes were red and glazed. He asked to go to the bathroom, and Officer Renshaw told him to wait until a backup officer arrived. Despite this instruction, Upton walked to the side of the house, urinated, and then fled. Officer Renshaw caught him and ordered him to stay on the ground, but Upton refused to obey. Officer Renshaw then sprayed him with pepper spray. After a struggle, Renshaw was able to handcuff Upton and, with the help of the backup officer, place him into the patrol car. Officer Renshaw then searched Upton’s ear. Behind the driver’s seat, he found an empty 16-ounce beer can that was cool to the touch and had condensation on the outside. He also found a number of old, empty beer cans inside the vehicle. Officer Renshaw took Upton to the city jail, where Upton twice refused to take a breathalyzer test. Upton testified in his own behalf that he did not drive home by the route or in the manner Officer Ren-shaw described. He stated that he drank one sip of beer before he left work and that he fled because he was frightened when he saw something in Officer Ren-shaw’s hand.

Upton contends that the trial court erred in permitting the prosecutor to impeach him with evidence of his prior DUI offenses. He argues that that evidence was more prejudicial than probative and that the court’s corrective instructions were insufficient to protect his rights and to ensure a fair trial. He argues that before admitting the prior DUI convictions to contradict his testimony, the court should have clarified his statement and considered the tense of the verb he used because it was feasible that he had changed since those convictions and had not drunk alcohol and driven since 1997. He argues that the court also should have “looked more closely at the remoteness of the prior convictions.”

During the prosecutor’s cross-examination of the appellant, the following occurred:

“Q. Sir, you know if a person drinks and drives and gets in a car, that’s a potential lethal combination? You risk yourself and their life as well?
“A. Correct.
“Q. It was your determination to drink beer and drive?
“A. No, sir. I had a guy with me. He don’t drink. I took that one sip of beer, I mean — -he would have drove. I don’t drink and drive.
“Q. I’m sorry?
“A. I do not drink and drive.
“Q. You don’t drink and drive?
“A. No, sir.
“Q. Never had a drink and driven.
“[DEFENSE COUNSEL]: Your Honor, we’re going to object to this.
“A. Don’t anymore.
“[DEFENSE COUNSEL]: Judge, may we approach?
(WHEREUPON, an off-the record discussion took place.)
“THE COURT: Ladies and gentlemen, I need to excuse you from the courtroom for just a minute, and deal with a legal issue that’s of some consequence here. I want to make sure that this is handled correctly. So if you will just remain outside the door and we’ll come for you in just a minute.
“(Jury not present.)
“THE COURT: All right. While the jury is outside the courtroom, let me ask you this, John. In light of what Mr. Upton just testified, he’s testifying that he doesn’t drink and drive or hasn’t drank and drive[n], is it your intent now to cross-examine him or to attempt to impeach him with evidence of the prior DUI convictions?
“[PROSECUTOR]: Yes, sir. He opened the door to that. It was volunteered by [Upton], and it was not in reference to any question, and he made a very broad statement that [sic], and we intend to cross him on this issue.
“THE COURT: George?
“[DEFENSE COUNSEL]: Your Honor, maybe Scott should read it back. I think his words were, T don’t drink and drive.’ He never said, I never drink and drive — he says I don’t — people change. Mr. Upton is one of those people that has changed, and what he’s talking about is the present, and caselaw after caselaw says prior DUIs are strictly for the penalty phase only, and it’s a mistrial if it comes in during the guilt phase.
“[PROSECUTOR]: Judge, that was not the testimony that I remember.
“THE COURT: Well, let’s ask Scott to read it back.
“[PROSECUTOR]: He stated never had. That was clearly the testimony that I heard.
“THE COURT: All right. I wrote it down, his exact words, George. I’m of the opinion that if he wishes to offer evidence of prior DUI convictions in light of Mr. Upton’s statement, testimony, that he’s entitled to do so for impeachment purposes.... ”

The court advised the prosecutor that if he offered the prior convictions, the court would instruct the jury that it could consider those prior convictions for the sole purpose of determining Upton’s credibility. The prosecutor asked Upton about DUI convictions he had received in October 1988; on October 30, 1991; on December 18, 1997; and on October 27, 1998; and Upton admitted the convictions. The court then instructed the jury that it was to use this evidence only for the purpose of determining Upton’s credibility. The court repeated this instruction during its oral jury charge.

Under the general exclusionary rule, evidence of a defendant’s collateral offenses is inadmissible solely for the purpose of proving his guilt as to the charged offense. Anonymous v. State, 507 So.2d 972 (Ala.1987). Upton’s prior convictions were not admissible under Rule 404(b), Ala. R. Evid. (which contains a nonex-haustive list of proper purposes for which such evidence may be used) or Rule 609, Ala. R. Evid. (which permits impeachment by evidence of prior felony convictions or crimes involving dishonesty or false statement). They also were not admissible under the “curative admissibility” or “open-the-door” doctrine, as the trial court erroneously believed.

Upton’s testimony regarding his use of alcohol was inconsistent and unclear. However, a review of the trial transcript reveals that he did not specifically state that he had never driven after drinking or that he had never been convicted of DUI. Compare Channell v. State, 477 So.2d 522 (Ala.Crim.App.1985)(in which the defendant opened the door for the admission of his misdemeanor conviction for possession of marijuana by denying that he had ever seen marijuana before). Upton’s prior DUI convictions should not have been admitted to rebut the statements he made at trial.

In Ex parte Sparks, 730 So.2d 113 (Ala.1998), the Alabama Supreme Court reversed the defendant’s conviction for DUI because the prosecutor asked him if he had been convicted of DUI on a previous occasion. The Court stated:

“Given the highly prejudicial nature of evidence of a defendant’s prior arrests and convictions, especially when the defendant is questioned about having previously been convicted of the same offense for which he is being tried, it is difficult to expect that a jury could, even in all earnestness, completely disregard the prosecutor’s improper questioning in reaching its verdict. There are some errors that simply cannot be corrected with a mere corrective instruction to the jury.”

Sparks, 730 So.2d at 115.

The error in the present case is more damaging because it includes a detailed response to the improper question. This case, like Sparks, “squarely falls into th[e] category of errors that cannot be rectified by simply instructing the jurors to disregard the prejudice that has already been inflicted.” Sparks, 730 So.2d at 116. Furthermore, we cannot say that the admission of Upton’s prior convictions was harmless error. Upton testified that he had had only one sip of beer to drink before he drove home. This testimony, if believed by the jury, could have established reasonable doubt as to his guilt of the DUI offense.

Upton does not appear to challenge his convictions of resisting arrest, failing to drive in a single lane, and failing to drive on the right side of the road. However, in an abundance of caution, we note that the evidence of the prior DUI convictions was not as prejudicial with regard to those charges because they were not similar offenses. When the prior act and the charged act are similar, the danger of unfair prejudice increases. Moore v. State, 878 So.2d 328 (Ala.Crim.App.2003).

The State offered persuasive evidence that Upton had committed the three non-DUI offenses. Upton’s testimony regarding the route he took and the manner in which he drove was contradicted by the arresting officer and by the reporting witness. His testimony regarding his fear at seeing something in Officer Renshaw’s hand did not explain his refusal to get into the patrol car after he was apprehended. We also note that the jury’s verdict apparently was not a product of emotion or prejudice. The jurors found Upton not guilty of Count II of the indictment, failing to display evidence of insurance. In light of the strength of the State’s case and the lack of prejudice suggested by the verdict, the admission of Upton’s prior DUI convictions was not so prejudicial as to require the reversal of his three non-DUI convictions.

The judgment of the trial court is affirmed as to the convictions for resisting arrest, failing to drive in a single lane, and failing to drive on the right side of the road; it is reversed as to the conviction for driving under the influence of alcohol. This cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

BASCHAB, Judge,

dissenting.

On cross-examination by the prosecution, the appellant attempted to enhance his own credibility and character by stating, “I do not drink and drive.” However, by making that representation, he opened the door for the prosecution to impeach his credibility, see Rule 404(b), Ala. R. Evid. (providing that “[ejvidence of other crimes ... may ... be admissible for other purposes”), and to rebut his testimony about his good character, see Rule 404(a)(1), Ala. R. Evid. (providing that “[ejvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except ... [ejvidence of character offered ... by the prosecution to rebut the same.”). Further, the evidence about his prior DUI convictions was highly probative because it directly refuted his testimony that he did not drink and drive. Although such evidence may have been prejudicial to the appellant, he invited the prejudice by his own actions.

“When one party opens the door to otherwise inadmissible evidence, the doctrine of ‘curative admissibility’ provides the opposing party with ‘the right to rebut such evidence with other illegal evidence.’ McElroy’s Alabama Evidence, § 14.01, p. 49 (5th ed.1996). ‘[T]he law [is] that even though a party introduces evidence that may be immaterial or illegal, his opponent has the right to rebut such evidence and this right is unconditional.’ Clark v. State, 54 Ala.App. 183, 186, 306 So.2d 51, 54 (1974). ‘ “A party who has brought out evidence on a certain subject has no valid complaint as to the trial court’s action in allowing his opponent or adversary to introduce evidence on the same subject.” ’ Hubbard v. State, 471 So.2d 497, 499 (Ala.Crim.App.1984) (quoting Brown v. State, 392 So.2d 1248, 1260 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1266 (Ala.1981)).”

Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001). Finally, the trial court specifically instructed the jury that it could use the evidence only for the purpose of determining the appellant’s credibility. Therefore, under the specific facts of this case, the prejudicial effect of the evidence did not substantially outweigh its probative value. See Rule 403, Ala. R. Evid. Accordingly, I respectfully dissent.

      . This date appears to be incorrect. The prosecutor questioned Upton about a DUI conviction he received on October 27, 1998, not 1997.

      . The appellant did not present any objection or argument concerning remoteness to the trial court. Therefore, this court will not consider that argument on appeal. Eastland v. State, 677 So.2d 1275 (Ala.Crim.App.1996).

      . Upton stated, at various times, that he had had "one sip” of beer at work but that he did not consider it to be "drinking;” that he had had "nothing” to drink before he was stopped; that he does not drink; and that he no longer drinks "to the extent where [he] get[s] drunk.”


author: SHAW, Judge.

text:
    Fred E. MARQUETTE v. STATE of Alabama.
    CR-04-0062.
    Court of Criminal Appeals of Alabama.
    June 24, 2005.

      Jeffery C. Duffey, Montgomery, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   SHAW, Judge.

Fred E. Marquette appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his May 2003 guilty-plea convictions for three counts of sodomy in the second degree and his resulting sentences of 15 years’ imprisonment for each conviction. Marquette did not appeal.

Marquette timely filed his petition on July 2, 2004, raising three claims: (1) that the trial court lacked jurisdiction to accept the pleas or to sentence him; (2) that his guilty pleas were involuntary because, he said, the State breached the terms of the plea agreement by presenting witnesses at the sentencing hearing; and (3) that his trial counsel was ineffective for not bringing the State’s alleged breach of the plea agreement to the trial court’s attention. After receiving a response from the State, the circuit court issued an order summarily denying the petition on August 16, 2004.

I.

Marquette contends that the trial court lacked jurisdiction to accept his pleas or to sentence him. Marquette’s entire allegation in this regard in his petition is as follows:

“The trial court lacked jurisdiction to accept a plea of guilty or to sentence pursuant to that plea of guilty due to the fact that the statute of limitations had expired prior to the rendering of the indictment in this case, or the case was stale due to laches.”

(C. 13.)

Marquette does not pursue on appeal his laches argument; therefore, that claim is deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (“We will not review issues not listed and argued in brief.”).

Marquette’s statute-of-limitatións argument was not pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P. Rule 32.3 states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b) states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” Marquette made a conclusory allegation that the statute of limitations had expired before the indictment was returned, but he failed to allege the date of the crimes or the date of the indictment. Marquette’s claim is nothing but a bare allegation unsupported by any specific facts that would tend to indicate that his prosecution was barred by the statute of limitations. Therefore, the circuit court properly denied this claim.

We note that Marquette also argues in his brief on appeal that his trial counsel was ineffective for not raising in the trial court the statute-of-limitations argument. However, Marquette did not include this claim in his petition. “An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.” Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997). Therefore, this claim is not properly before this Court for review.

II.

Marquette contends that his guilty pleas were involuntary because, he says, the State breached the terms of the plea agreement by presenting witnesses at the sentencing hearing and that his trial counsel was ineffective for not bringing the State’s alleged breach of the agreement to the trial court’s attention and requesting either specific performance of the plea agreement or requesting that he be allowed to withdraw his pleas.

In his petition, Marquette alleged that he had pleaded guilty pursuant to an agreement with the State; that, as part of the agreement, the State had agreed to “stand silent” at sentencing by not presenting any evidence or testimony (C. 11); and that the State breached the agreement when it allowed several witnesses, including victims and victims’ family members, to make statements at the sentencing hearing. Marquette attached to his petition a transcript of the sentencing hearing, which reflects that victims and victims’ family members made statements to the court at the request of the State. In addition, several days after he filed his Rule 32 petition, Marquette submitted an affidavit in which he stated that he had pleaded guilty pursuant to an agreement with the State that called for the State to “stand silent” at the sentencing hearing, and that his understanding of the agreement was that the State would not call any witnesses or present any evidence at the sentencing hearing. (C. 48.)

In Ex parte Richardson, 678 So.2d 1046 (Ala.1995), the Alabama Supreme Court stated the following regarding plea agreements:

“We have stated regarding plea agreements that, if the district attorney makes an offer and that offer is accepted by the accused, either by entering a guilty plea or by taking action to his detriment in reliance on the offer, the plea agreement becomes binding and enforceable. Ex parte Johnson, 669 So.2d 205 ([Ala.]1995); Waldrop v. State, 54 Ala.App. 163, 306 So.2d 29 (Crim.App.1974), cert. denied, 293 Ala. 777, 306 So.2d 33 (1975). The State does not have to enter into a plea agreement. However, if it chooses to do so, it should not be allowed to repudiate that agreement with impunity. Ex parte Yarber, 437 So.2d 1330 (Ala.1983). Our position is supported by the United States Supreme Court, which has held that when a guilty plea rests in any significant degree on a promise or agreement of the prosecutor, so that the promise or agreement can be said to be part of the inducement or consideration leading to the plea, the promise or agreement must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).”

678 So.2d at 1047.

“ ‘[I]f there is a plea agreement between a defendant and the State and a breach thereof which is made known to the trial court, and if the trial court does not sentence the defendant pursuant to the terms of the plea agreement (or as alleged in the instant case, that the State makes a sentence recommendation contrary to the plea agreement), then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea. At that point, the trial court must review the circumstances surrounding the making of the plea agreement and determine whether ... a breach occurred. Further, it must decide if the guilty plea rested in any significant degree upon the agreement of the State, so that such can be said to be part of the inducement or consideration and, thus, must be fulfilled. The trial court may hold a hearing and receive testimony to determine the above. Once it makes its findings, the trial court then determines the appropriate remedy, if any. Santobello v. New York, 404 U.S. 257, 263 [92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) ]; See Ex parte Yarber, [437 So.2d 1330 (Ala.1983) ].’ ”

Blackwell v. State, 556 So.2d 1091, 1093 (Ala.Crim.App.1988), quoting Orr v. State, 435 So.2d 182, 184 (Ala.Crim.App.1983). “If a breach of a plea agreement by the state is demonstrated, the trial court has the discretion to cure the breach by allowing withdrawal of the plea, or, under some circumstances, by ordering specific performance of the agreement.” Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994).

Marquette’s claims are sufficiently pleaded and, if true, may entitle him to relief. The State did not directly refute Marquette’s claims; rather, it merely alleged in its response to Marquette’s petition that there was “no evidence” in the court record indicating that there was a plea agreement. (C. 53.) In addition, in its order summarily denying Marquette’s petition, the circuit court made only general findings that the court record reflected that Marquette’s pleas were voluntary and that in light of the presumption that counsel acted reasonably, Marquette’s ineffective-assistance-of-counsel claim was “unfounded.” (C. 57-58.) However, the circuit court did not actually address Marquette’s specific claims that his pleas were involuntary as a result of the State’s alleged breach of the plea agreement and that his trial counsel was ineffective for not bringing the alleged breach to the attention of the trial court; the court made no findings as to whether there was a plea agreement and, if so, whether the State breached the terms of the agreement.

Therefore, we remand this case for the circuit court to address the merits of Marquette’s claims that his pleas were involuntary as a result of the State’s alleged breach of the terms of the plea agreement and that his trial counsel was ineffective for not bringing the alleged breach to the trial court’s attention, and to issue specific written findings of fact regarding these claims. The circuit court’s findings shall include a determination of the following: whether there was a plea agreement and, if so, what the terms of that agreement were, whether the State breached the plea agreement, and whether Marquette’s pleas rested in any significant degree on the agreement so that the agreement can be said to be part of the inducement or consideration leading to the pleas. The circuit court may conduct an evidentiary hearing or take evidence by way of affidavit, written interrogatories, or deposition. See Rule 32.9(a), Ala.R.Crim.P. If the court determines that Marquette’s claims are meritorious, it may grant whatever relief it deems appropriate. Due return shall be filed within 49 days of the date of this opinion. The return to remand shall include the circuit court’s written findings of fact, any evidence received or relied on by the court, a transcript of the evidentia-ry hearing, if one is conducted, and a transcript of the guilty-plea colloquy.

REMANDED WITH DIRECTIONS.

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

      . We note that the record contains a copy of the indictment. However, that does not relieve Marquette of his burden of pleading sufficient facts in his petition. See, e.g., Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003) (noting that " ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief ”). Moreover, the indictment does not specify the date of the crimes.

      . Although Marquette attached to his petition a transcript of the sentencing hearing, a transcript of the guilty-plea colloquy is not contained in the record.

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


author: BASCHAB, Judge.

text:
    Carol McPherson v. STATE of Alabama.
    CR-04-0912.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2005.

      Rebecca Green Thomason, Russellville, for appellant.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Carol McPherson, was indicted for three counts of discharging a firearm into an occupied dwelling and one count of second-degree assault. She was convicted of two counts of discharging a firearm into an occupied dwelling, violations of § 13A-ll-61(a), Ala.Code 1975. The trial court sentenced her, as a habitual offender, to serve concurrent terms of fifteen years in prison on each conviction. See § 13A-5-9(a)(2), Ala.Code 1975. The appellant did not file any post-judgment motions. This appeal followed.

The evidence showed that, on November 28, 2001, the appellant went to the residence of her former husband, Roger Walden, and his wife, Lisa Walden; that the appellant tried to open the screen door, but it was locked; that the appellant was yelling and screaming at Roger and Lisa, who were sitting in the den; that, at some point, Roger and Lisa’s three-year-old daughter, M.E.W., came into the room; that Lisa picked up a cellular telephone to try to call law enforcement authorities; that the appellant pulled out a gun, pointed it at Lisa’s forehead, told Lisa not to call law enforcement authorities, and threatened to kill Lisa and Roger; that Lisa attempted to close the door; that the appellant shot Lisa; and that the appellant fired another shot as the door was closing, but she did not hit anyone.

The appellant argues that her convictions for two counts of discharging a firearm into an occupied dwelling violate double jeopardy principles. The State argues that, because she did not first present this argument to the trial court, the appellant did not preserve this argument for appellate review. Therefore, we must determine whether the appellant’s double jeopardy claim is jurisdictional and reviewable even though she raises it for the first time on appeal.

Count I of the indictment alleged that the appellant

“did shoot or discharge a firearm into a dwelling, to-wit: 1211 Eighth Avenue Southeast, in Decatur, Alabama, while said dwelling was occupied by Roger Walden, in violation of Section 13A-11-61 of the Code of Alabama[.]”

(C.R. 25.) Count II of the indictment alleged that the appellant

“did shoot or discharge a firearm into a dwelling, to-wit: 1211 Eighth Avenue Southeast, in Decatur, Alabama, while said dwelling was occupied by Lisa Walden, in violation of Section 13A-11-61 of the Code of Alabama[.]”

(C.R. 25.) Finally, Count III of the indictment alleged that the appellant

“did shoot or discharge a firearm into a dwelling, to-wit: 1211 Eighth Avenue Southeast, in Decatur, Alabama, while said dwelling was occupied by [M.E.W.], in violation of Section 13A-11-61 of the Code of Alabama.”

(C.R. 25.)

In Craig v. State, 893 So.2d 1250, 1252-56 (Ala.Crim.App.2004), we addressed a similar factual situation as follows:

“The facts adduced at trial indicate the following: On July 9, 2001, Paulette Gallahar was working at a dry-cleaning business when Craig entered the store, pulled out a weapon, and announced, ‘ “Oh by the way, this is a robbery.... I’m taking money out of this store and I’m taking your car.” ’ (R. 95.) Craig stole $45 from the cash register and forced Gallahar into the back of the store. In the back of the store, Craig took $5 and car keys from Gallahar’s purse. Craig forced Gallahar to kneel in a corner, put plastic around her head, and held a gun to her head. Another customer entered the front of the store. Craig went to wait on the customer, so as to not cause any suspicion. Gallahar ran to the doorway to the front of the store and shouted, ‘ “It’s a robbery, it’s a robbery.” ’ (R. 103.) She ran out the back door, yelling, jumped into her car, and locked the doors. Craig followed her and, with her keys, unlocked the passenger side door. Craig got into the passenger side of the front seat, grabbed Gallahar’s wrist, and stated, ‘Okay, bitch, you’re driving.’ (R. 105.) Gallahar jerked away from Craig, jumped out of the car, and ran. Craig drove away from the scene of the crime in Gallahar’s car. Craig was arrested in Kentucky several days later in Galla-har’s car. Gallahar later picked Craig out of a photographic lineup.
“... Craig argues on appeal, as he did at trial, that he robbed only one person, albeit twice, and that, therefore, ‘double jeopardy principles are implicated.’ (C. 47.)....
“ ‘The constitutional guarantee against double jeopardy protects a defendant from being subjected to multiple punishments for the same offense. This guarantee bars the conviction of a defendant for two separate counts of first-degree robbery where the evidence adduced at trial tended to show that the defendant committed only one act of robbery against one victim. Moore v. State, 709 So.2d 1324 (Ala.Crim.App.1997).’
“Young v. State, 724 So.2d 69, 73 (Ala.Crim.App.1998).
“ ‘This is not a case where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299 (1932).... The pertinent inquiry in deciding whether [these convictions are] acceptable in the face of constitutional guarantees against double jeopardy then becomes defining the correct unit of prosecution. Bell v. United States, 349 U.S. 81 (1955).
“ ‘ “ ‘A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const, of 1901, Art. I, § 9; U.S. Const. Amend. V.’ Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). Such question of double jeopardy is determined by the following principles:
“ ‘ “ ‘It has been aptly noted that “the Blockburger [v. United States, 284 U.S. 299 (1932),] test is insufficient where ... the concern is not multiple charges under separate statutes, but rather successive prosecutions for conduct that may constitute the same act or transaction.” Rashad v. Burt, 108 F.3d 677 (6th Cir.1997). This is because when “a defendant is convicted for violating one statute multiple times, the same evidence test will never be satisfied.” State v. Adel, 136 Wash.2d 629, 965 P.2d 1072 (1998). The “appropriate inquiry” in such a case “asks what ‘unit of prosecution’ was intended by the Legislature as the punishable act.... The inquiry requires us to look to the language and purpose of the statutes, to see whether they speak directly to the issue of the appropriate unit of prosecution, and if they do not, to ascertain that unit, keeping in mind that any ambiguity that arises in the process must be resolved, under the rule of lenity, in the defendant’s favor.” Commonwealth v. Rabb, 431 Mass. 123, 725 N.E.2d 1036 (2000) (concluding that allegedly multiple drug possessions justify multiple charges if the possessions are sufficiently differentiated by time, place or intended purpose, the case here regarding defendant’s possession of drugs at his residence for immediate sale and his possession of drugs at motel for future sales).’
“ ‘ “4 Wayne R. LaFave et al., Criminal Procedure § 17.4(b), 2001 Pocket Part n. 66 (2d ed. 1999). See also Project, ‘Twenty-Ninth Annual Review of Criminal Procedure,’ 88 Geo. L.J. 879, 1293 (2000) (‘when the government seeks to prove that a single act or occurrence results in multiple violations of the same statute, the rule of lenity requires only one punishment unless legislative intent to impose multiple punishments is shown’).”
‘Townsend v. State, 823 So.2d 717, 722 (Ala.Crim.App.2001) (footnote omitted [in Girard ]).’
“Girard [v. State], 883 So.2d [714,] 715-16 [(Ala.Crim.App.2002)].
“ ‘ “Robbery is an offense against the person....’” Ex parte Windsor, 683 So.2d 1042, 1046 (Ala.1996) (quoting Windsor v. State, 683 So.2d 1027, 1032 (Ala.Crim.App.1994)). That is, the victim in this case was Gallahar, not the dry-cleaning business, although some of the property taken belonged to the business. Proof of an actual taking of property is not required to sustain a conviction for robbery. See Cook v. State, 582 So.2d 592 (Ala.Crim.App.1991). Thus it is the use of force, or the threat of the use of force, against the person that constitutes the crime; therefore, the unit of prosecution is the act of violence against the person. Thus, the number of charges against the defendant is not determined by the number of pieces of property actually taken, as was done in this case. Cf. Connolly v. State, 539 So.2d 436, 441-42 (Ala.Crim.App.1988) (‘The State could not convert a single theft of various items of property into separate offenses by alleging the theft of different items in separate indictments. All the property was taken during the same transaction and constituted one offense. Such is not permitted.’).
“In Young, this Court reasoned:
“ ‘In the present case, the court differentiated the two counts of robbery as follows:
“ ‘ “And the State is maintaining that the first robbery charge is in regard to the $42 or $43 that [V.E.] said was taken from his wallet. And then that the other robbery charge was the going to the, I believe, the front bedroom, seeking money on that occasion.”
“ ‘(R. 416.)
“ ‘The State presented evidence of one [robbery], but not two separate robberies. The evidence tended to show that Young committed one continuous act of robbery against Y.E., using a deadly weapon while committing a theft. The fact that Young forced V.E. into another room does not create a second robbery. The trial court erred in instructing the jury that it did. See Rolling v. State, 673 So.2d 812, 815 (Ala.Crim.App.1995).’
724 So.2d at 73.
“The evidence in this case, like the evidence in Young, shows that Craig committed one continuous act of robbery against Gallahar. For the reasons stated above, the fact that Craig took property from both Gallahar and from the dry-cleaning business does not create two separate robbery offenses. Therefore, because Craig was twice placed in jeopardy by being indicted for and convicted of two separate charges of first-degree robbery when he in fact committed only one crime against one victim, one of Craig’s convictions for first-degree robbery is to be vacated, along with the accompanying sentence.”

(Footnote omitted; some emphasis added.) See also Smith v. State, 895 So.2d 381 (Ala.Crim.App.2004).

Section § 13A-ll-61(a), Ala.Code 1975, provides, in pertinent part:

“No person shall shoot or discharge a firearm ... into any occupied or unoccupied dwelling ... in this state.”

Discharging a firearm into an occupied dwelling is not a victim-specific offense. Rather, the unit of prosecution in a case that involves discharging a firearm into an occupied dwelling is the act of discharging the fireax-m into that dwelling. Therefore, the number of people who are in the dwelling at the time of the offense is irrelevant.

In this case, the appellant was charged with discharging a firearm into the same dwelling during one course of conduct. The only difference between Counts I, II, and III of the indictment was the name of the occupant in the dwelling at the time of the offense. However, this case involved only one unit of prosecution, which was the appellant’s act of discharging the firearm into the Waldens’ occupied dwelling. The fact that more than one person was in the dwelling at the time of the act was irrelevant, and the names of the various occupants in Counts I, II, and III of the indictment were superfluous. Therefore, the appellant’s convictions for two counts of discharging a firearm into an occupied dwelling violate double jeopardy principles.

In arguing that the double jeopardy issue is not properly before this court, the State relies on our holding in Straughn v. State, 876 So.2d 492 (Ala.Crim.App.2003). In Straughn, the appellant was convicted of two counts of first-degree unlawful possession of marijuana. One count was based on marijuana seedlings that law enforcement officers discovered at Straughn’s residence, and the other count was based on marijuana plants that law enforcement officers discovered growing in a wooded area in a neutral location. Initially, this court held that Straughn’s convictions for two counts of first-degree unlawful possession of marijuana violated double jeopardy principles. However, on return to remand and on application for rehearing, we withdrew our previous opinion and affirmed both of the appellant’s convictions and sentences for first-degree unlawful possession of marijuana. First, we noted that Straughn did not argue, either at trial or on appeal, that his convictions violated double jeopardy principles. We then held that the double jeopardy issue in that case was a nonjurisdietional issue and was, therefore, not properly before this court. In reaching our decision that the double jeopardy issue in that case was nonjurisdietional, we stated:

“[Tjhis ease, like Harris [v. State, 563 So.2d 9 (Ala.Crim.App.1989)], involves a multicount indictment alleging separate offenses. Unlike Lorance [v. State, 770 So.2d 644 (Ala.Crim.App.1999)], where the indictment on its face alleged in separate counts alternative methods of committing a single offense, the indictment here alleged separate offenses of possession of marijuana in the first degree. Although the evidence at trial established that the marijuana found on Straughn’s property and the marijuana found at the neutral site were part of a single growing operation and, thus, constituted a single act of possession under the rationale of Townsend [v. State, 823 So.2d 717 (Ala.Crim.App.2001)], Straughn did not argue that the evidence was insufficient to support separate convictions based on the jury’s findings of separate acts of possession. Stated differently, Straughn’s conviction under the second count is not supported by the evidence; however, other than as noted in part III of this opinion, the sufficiency of the evidence to support the conviction was never raised as an issue in the trial court. In Townsend, this Court stated:
“ ‘[W]e conclude that Townsend was properly prosecuted and convicted for the crime of trafficking in cocaine. The trial court properly denied Townsend’s motion for a judgment of acquittal. We also note, in conclusion, that the propriety of aggregating separate quantities of a controlled substance depends on the particular facts in question. Only an analysis of the facts will dictate whether a defendant’s possession was sufficiently differentiated by time or location as to constitute separate units for prosecution or whether it constitutes a single offense.’

823 So.2d at 724.”

Straughn, 876 So.2d at 508-09 (emphasis added).

The defendants in both Straughn and Harris were charged with multiple counts of possession of prohibited items that arose from the possession of more than one prohibited item. In such cases, it is not clear on the face of the indictments that multiple convictions will violate double jeopardy principles. Rather, the evidence presented at trial regarding the items possessed and the surrounding circumstances must be reviewed to determine whether the evidence established independent acts of possession or whether the evidence established only one act of possession. Therefore, those types of cases actually are more similar to nonjurisdietional sufficiency-of-the-evidence claims rather than jurisdictional double jeopardy claims.

In this case, it was undisputed that the appellant fired into a single occupied dwelling during one course of conduct. The only allegation in the various counts of the indictment that changed was the name of the occupant of the dwelling. As we have previously stated, discharging a firearm into an occupied dwelling is not a victim-specific offense. Therefore, deleting the superfluous names of the occupants of the dwelling, the three counts, on their face, simply charge the appellant with the same offense three times. Accordingly, the issue in this case is not whether the State presented sufficient evidence to support multiple, independent offenses. Rather, the question is whether a defendant can be convicted of multiple counts of discharging a firearm into an occupied dwelling based solely on the fact that there were multiple occupants in the dwelling, which is a question of law. Therefore, our holding in Stmughn is not applicable to this case.

This case is analogous to the situation presented in Ex parte Robey, 920 So.2d 1069, 1071 (Ala.2004), in which the Alabama Supreme Court held:

“Robey was convicted of two counts of first-degree assault under two subsections of the same Code section....
“We conclude that the offense of first-degree assault under § 13A-6-20(a) ‘may be committed by several different methods, and the State may allege and prove any one or all of those various methods in its attempt to establish the defendant’s guilt.’ [Ex parte] Rice, 766 So.2d [143,] 150 [(Ala.1999)]. We have found no indiction that the Legislature intended to impose multiple punishments under the separate subsections of § 13A-6-20(a) when the actions described in each of those subsections are based on the same conduct of the accused, as well as the same injuries to the same victim. Therefore, punishing Ro-bey twice for the same offense — first-degree assault — violated his double jeopardy rights.
“... The violation of Robey’s double-jeopardy rights raises questions of the trial court’s jurisdiction to enter a judgment on both assault counts.”

Similarly, this case involves multiple prosecutions for the same course of conduct. Because discharging a firearm into an occupied dwelling is not a victim-specific offense, at most, Counts I, II, and III of the indictment alleged various methods of proving that the dwelling was occupied rather than independent, separate offenses. Therefore, the trial court did not have jurisdiction to enter judgments on both counts of discharging a firearm into an occupied dwelling. Accordingly, this issue is properly before this court, even though the appellant did not first present it to the trial court.

As we previously noted, the appellant’s two convictions for discharging a firearm into an occupied dwelling violated double jeopardy principles. Therefore, she could not properly be convicted of and sentenced for two counts of discharging a firearm into an occupied dwelling. The trial court sentenced the appellant to serve concurrent terms of fifteen years in prison. However, in Ex parte Rice, 766 So.2d 143 (Ala.1999), the supreme court addressed a similar situation as follows:

“We note that merely ordering that Rice’s sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
“ ‘The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368[, 103 S.Ct. 673, 74 L.Ed.2d 535] (1983).
“ ‘The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U.S. 784, 790-91[, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969); Sibron v. New York, 392 U.S. 40, 54-56[, 88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’
“See, also, Rolling v. State, [673 So.2d 812 (Ala.Crim.App.1995)].
“Neither is it an acceptable option to merely vacate one of Rice’s convictions and its corresponding sentence. The jury specifically found that Rice had violated § 13A-6-2(a)(3) in two different ways — by participating in a kidnapping and causing Taylor’s death and by participating in a robbery and causing Taylor’s death. Based on the record before us, an appellate court’s vacating one of Rice’s convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury’s verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order — an order that adjudges Rice guilty of Taylor’s murder and sentences him for that single offense.”

Rice, 766 So.2d at 152-53. Therefore, we remand this case to the trial court with instructions that that court enter a new order that adjudges the appellant guilty of the single offense of discharging a firearm into an occupied dwelling and sentences her for that single offense. On remand, 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 28 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

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

      . The jury found the appellant not guilty of the two remaining charges.

      . Harris was charged with four counts of possession of obscene materials based on one pornographic magazine and three videotapes that were found in his home.

       Note from the reporter of decisions: On November 4, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 16, 2005, that court denied rehearing, without opinion.


author: SHAW, Judge,

text:
    Ex parte Ronnie Lee BROWN (In re State of Alabama v. Ronnie Lee Brown).
    CR-05-0259.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
   Petition for Writ of Mandamus (Morgan Circuit Court, CC-03-205.60), Glenn E. Thompson, Judge.

Note from the reporter of decisions; On February 3, 2006, the Court of - Criminal Appeals issued an order in the above-referenced case granting Ronnie Lee Brown’s mandamus petition and directing the trial judge to dispose of the Brown’s Rule 32, Ala.R.Crim.P., petition “within a reasonable period of time from the date of this order.” Judge Shaw dissented from that order and issued an opinion.

SHAW, Judge,

dissenting.

Canon 3.A(5), Canons of Judicial Ethics, states in part that “[a] judge should dispose promptly of the business of the court, being ever mindful of matters taken under submission.” There is no question that Ronnie Lee Brown is entitled to a timely disposition of his case; however, timeliness can be a relative concept. The delay here appears to be the result of a backlog of Rule 32, Ala.R.Crim.P., petitions that have been filed in the Eighth Judicial Circuit. Both the State and the trial judge have represented to this Court that this backlog is being handled as expeditiously as practicable. This Court has been presented with no evidence of intentional or negligence-based delay on the part of either the State or the trial judge in disposing of this case and no evidence of a pattern or practice in the Eighth Judicial Circuit on the part of either the State or the trial judge of intentional or negligence-based delay with respect to the disposition of postcon-viction petitions generally. I fail to see any basis for, or logic in, issuing the writ of mandamus directing the trial judge to order the State to respond to Brown’s petition or to dispose of Brown’s petition “within a reasonable period of time” when there is no indication in the materials before this Court that the State is not responding to Rule 32 petitions in due course or that the trial judge is not already working diligently to dispose of the backlog of petitions “within a reasonable period of time.” Moreover, a vague directive to the trial judge to act reasonably appears, to me at least, to serve little purpose. Many years ago, in Ex parte Gandy, 276 Ala. 279, 281, 161 So.2d 483, 484 (1964), the Alabama Supreme Court noted what remains undeniably true today:

“Convicts have the right to file for post conviction remedies and they will not be denied these rights by this or any other Alabama court, but we will be very slow to grant writs of mandamus, because we know that the lower courts, as well as this court, are flooded with these petitions and the number is increasing all the time.”

See also Ex parte Wilson, 276 Ala. 281, 161 So.2d 484 (1964). Therefore, I respectfully dissent.