author: SHAW, Judge.

text:
    ALABAMA BOARD OF PARDONS AND PAROLES v. Dennis E. WILLIAMS.
    CR-04-0668.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2005.
    Rehearing Denied Nov. 18, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1050288.

      Gregory 0. Griffin, Sr., chief counsel, Alabama Board of Pardons and Paroles, and Hugh Davis, asst. atty. gen., for appellant.
    Dennis E. Williams, pro se.
   SHAW, Judge.

The Alabama Board of Pardons and Paroles (“the Board”) appeals an order of the Montgomery Circuit Court granting Dennis E. Williams’s petition for a writ of certiorari and reinstating his parole. We reverse and remand.

The record reflects the following material facts. On July 15, 1981, Williams was convicted in the Colbert Circuit Court of murder and was sentenced to 30 years in prison. He was paroled on March 13, 1995, to Ohio, pursuant to an interstate compact between Alabama and Ohio, where he was to remain under the supervision of the Ohio Adult Parole Authority (“the OAPA”). On or about July 4, 1995, Williams was arrested in Ohio on a drug charge. Following a preliminary probable-cause hearing held on August 9, 1995, the OAPA found probable cause to believe that Williams had violated the conditions of his Alabama parole. The OAPA notified the Board of the alleged violation and, by correspondence dated August 25, 1995, requested that the Board issue a warrant for Williams’s arrest and return to Alabama for a hearing on the alleged parole violation. On September 7, 1995, the Board authorized the issuance of the warrant and directed the Alabama Department of Corrections (“the DOC”) to immediately issue the warrant pursuant to § 15-22-31 (a), Ala.Code 1975. Shortly thereafter, on September 11, 1995, .the Board declared Williams delinquent.

On September 15, 1995, Williams pleaded guilty in Ohio to the drug charge (attempted trafficking in heroin) and was sentenced to six months in an Ohio correctional facility. On October 6, 1995, the Board received notice from the OAPA that Williams had pleaded guilty hot only to the drug charge but also to a charge of receiving stolen property. For reasons not apparent from the record, the DOC failed to issue the parole violator’s warrant the Board had authorized. After serving his six-month sentence in Ohio, Williams was released from custody; he claims he notified Alabama authorities of his release and continued to report to the OAPA. Almost five years later, Williams was arrested in Washington, D.C., on new federal felony charges (conspiracy and theft).

On August 11, 2000, the DOC issued a parole violator’s warrant ordering that Williams be returned to Alabama to face the parole-violation charge that arose out of the September 15, 1995, Ohio conviction. Shortly thereafter, that warrant was executed and Williams was returned to Alabama in September 2000, where he remained in the custody of the DOC for approximately four to six months. In February 2001, Williams was transferred by federal authorities from Alabama to Washington, D.C., to stand trial on the charges pending there. Williams was eventually convicted of those charges and received concurrent five-year sentences of imprisonment to be followed by three years on probation. Williams was returned to Alabama in December 2001. Approximately five or six months later, on June 6, 2002, Williams was notified that a parole hearing would be held at Kilby Correctional Facility on June 25, 2002, to consider whether his parole should be revoked. However, before that hearing could be held, Williams was transferred by the DOC to Staton Correctional Facility. On July 25, 2002, Williams was notified that a parole hearing had been rescheduled for August 14, 2002. That hearing was then continued at Williams’s request to accommodate his lawyer.

On July 29, 2002, Williams filed a petition for a writ of certiorari in the Montgomery Circuit Court seeking to prevent the Board from proceeding with the revocation process. Specifically, Williams alleged 1) that the Board had lost jurisdiction over him pursuant to the interstate compact, by which Ohio agreed to supervise him while he was on parole from Alabama; 2) that the Board was barred by the doctrine of res judicata from proceeding with the revocation process because, he claimed, Ohio had already considered the matter and had not revoked his parole; 3) that the Board was barred by the doctrine of collateral estoppel from proceeding with the revocation process because, he claimed, Ohio had already considered the matter; and 4) that the DOC had failed to timely issue a warrant charging him with violating parole and that the delay caused by that failure on the DOC’s part and by the Board’s failure to follow up on its authorization to ensure the issuance of the warrant had divested the Board of jurisdiction over him.

The Board responded to the petition, arguing that Williams’s claims were premature because the Board had not yet revoked his parole and, in the alternative, that his claims were without merit. On January 22, 2003, Williams was notified that a parole hearing would be held on January 28, 2003. At the January hearing Williams pleaded guilty to violating the conditions of his parole by committing another offense in Ohio. The Board revoked Williams’s parole on March 3, 2003.

A final hearing was held on Williams’s certiorari petition on November 12, 2003. At the hearing, Williams testified and, through counsel, introduced various exhibits and argued again that the DOC’s delay in issuing and executing the parole violator’s warrant had divested the Board of jurisdiction to revoke his parole. In addition, Williams argued that the Board had failed to hold a parole hearing within a reasonable time after he was taken into custody and returned to Alabama and that he had been so prejudiced by the delay that the Board should be required to reinstate his parole. On November 19, 2004, the circuit court entered an order reinstating Williams’s parole on the ground that Williams’s due-process rights (presumably both substantive and procedural) had been violated as a result of the Board’s holding the revocation hearing “seven years and four months after declaring him delinquent.” (C. 133.)

The Board argues on appeal that the circuit court erred in reinstating Williams’s parole. The Board contends that, in assessing the reasonableness of any pre-cus-tody delay in executing the warrant for the parole violation, the focus should be on Williams’s actions after he finished serving his six-month sentence in Ohio on the drug conviction. The Board maintains that Williams knew that he was still on parole following his release from custody in Ohio and that he was under a legal obligation to report to Alabama authorities because, the Board asserts, the OAPA had advised him it had no further interest in supervising him. According to the Board, Williams absconded supervision for the approximate four-and-one-half-year period following his release from custody in Ohio and, under those circumstances, he should not be allowed to benefit from the DOC’s delayed issuance and execution of the warrant. In the alternative, the Board contends, among other things, that it proceeded with reasonable diligence to authorize the DOC to issue a parole violator’s warrant after Williams committed an offense in Ohio. The Board argues that, under the circumstances presented in this case, it did not lose jurisdiction over Williams by entrusting the DOC to perform a ministerial duty.

In addition, the Board argues that in assessing the reasonableness of any post-custody delay in holding a parole hearing, a court should use a test similar to the four-pronged test applied in cases involving the alleged denial of the right to a speedy trial. The record indicates that the total time elapsed between Williams’s return to Alabama in September 2000 and the parole hearing on January 28, 2003, was approximately 28 to 29 months. Citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Board argues 1) that for approximately 9 to 11 months of that period Williams was in Washington, D.C., in connection with federal charges he was facing there; 2) that the DOC’s transfer of Williams from Kilby Correctional Facility to Staton Correctional Facility and the request by Williams’s lawyer for a continuance of the August 14, 2002, parole hearing resulted in delays that were beyond the Board’s control and that should not be counted against it; 3) that the actual delay that can be attributed to the Board was approximately 10 to 13 months (representing the period between September 2000, when Williams was returned to Alabama pursuant to the parole violator’s warrant, and February 2001, when Williams was transferred to Washington, D.C., and the period between December 2001, when Williams was returned to Alabama from Washington, D.C., and June 25, 2002, when the first parole hearing was scheduled); 4) that Williams did not raise the issue of the delay until he filed his certiorari petition on July 29, 2002; and 5) that the record does not indicate that Williams suffered any prejudice as a result of the delay because he had already been convicted in Ohio on the charge that formed the basis for the revocation, leaving only the issue of mitigation for the Board’s consideration.

Williams argues that the Board was negligent in failing to follow up on its request for the DOC to issue a warrant for a parole violation and that that failure resulted in an unreasonable delay in the issuance and execution of the warrant and constituted a waiver of jurisdiction by the Board. Williams maintains that the Board’s subsequent revocation of his parole, which it was, he argues, without jurisdiction to do, violated his right to substantive due process under the Fourteenth Amendment to the United States Constitution. Williams also appears to argue that the Board failed to hold a parole hearing within a reasonable time after he was returned to Alabama and that the delay that resulted violated his right to procedural due process under the Fourteenth Amendment.

In Ellard, v. State, 474 So.2d 743 (Ala.Crim.App.1984), aff'd, 474 So.2d 758 (Ala.1985), this Court set out the standard of review applicable to a certiorari petition seeking review of a decision of the Board:

“On petition for writ of certiorari the circuit court is, as is the appellate court, limited in its review of quasi-judicial acts of administrative officers and boards. The limited function of that review is to determine whether the act in question was supported by any substantial evidence, or whether findings and conclusions are contrary to uncon-tradicted evidence, or whether there was an improper application of the findings viewed in a legal sense. Sanders v. Broadwater, 402 So.2d 1035 (Ala.Civ.App.1981). Judicial review of administrative acts and decisions is limited in scope, and ordinarily the courts will only pass on the question of whether the administrative agency has acted within its constitutional or statutory powers, whether its order or determination is supported by substantial evidence, and whether its action is reasonable and not arbitrary. Little Caesar’s, Inc. v. Alabama Alcoholic Beverage Control Bd., 386 So.2d 224 (Ala.Civ.App.1979).”

474 So.2d at 750.

The dispositive issues before this Court, as we understand them, are 1) whether the pre-custody delay in the issuance and execution by the DOC of a warrant charging Williams with a parole violation divested the Board of jurisdiction over Williams so that the Board’s subsequent revocation of his parole exceeded its statutory authority and thereby violated his substantive due-process rights, and 2) whether the post-custody delay in holding the parole hearing was unreasonable and constituted a denial of Williams’s right to procedural due process.

Pre-Custody Delay

In Hawkins v. Freeman, 195 F.3d 732 (4th Cir.1999), the United States Court of Appeals for the Fourth Circuit discussed the waiver-of-jurisdiction theory Williams relies on:

“Commonly traced in origin to the Fifth Circuit’s decision in Shields v. Beto, 370 F.2d 1003 (5th Cir.1967), this theory employs the fictive notion that by prolonged failure to incarcerate a convict who ‘owes it time’ (either original or ‘interrupted’) a government may ‘waive its jurisdiction’ to do so, thereby making any later incarceration one effected without jurisdiction and so a violation of due process. As originally formulated and applied in Shields, the theory seemed to require nothing more than prolonged inaction by government to prove a due process violation (presumably ‘substantive’). Undoubtedly sensing that if so understood the rule could not pass muster as one of constitutional stature, the Fifth Circuit took the occasion some six years later in Piper v. Estelle, 485 F.2d 245 (5th Cir.1973) (per curiam), to cabin in that aspect of the rule concerned with the required level of government culpability. Emphasizing that ‘lack of eager pursuit’ or ‘lack of interest’ is not enough, Piper held that ‘the ... action must be so affirmatively wrong or [the] inaction so grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require [that the “time owed”] be servedId. at 246 (quotation omitted). It is Piper’s formulation that has since been used by courts applying this ‘waiver of jurisdiction’ theory to constitutional due process claims. While that formulation surely moved in the direction of the conscience-shocking standard mandated in [Sacramento v.] Lewis, [523 U.S. 833, 118 S.Ct. 1708 (1998),] it as surely fails to embody the full stringency of that standard’s requirement that to be ‘conscience-shocking,’ ‘arbitrary in the constitutional sense,’ an executive act must be not only ‘wrong,’ but egregiously so by reason of its abusive or oppressive purpose and its lack of justification by any government interest. See Lewis, 118 S.Ct. at 1716-20. Significantly, even when applying the less-exacting Shields/Piper ‘waiver’ standard of executive culpability, the great majority of decisions have found it not met on the facts of the particular case.

195 F.3d at 743-44.

Recently, in United States v. Barfield, 396 F.3d 1144 (11th Cir.2005), the United States Court of Appeals for the Eleventh Circuit explained the theory as follows:

“This Court has held a delay in the execution of a sentence can, under certain circumstances, amount to a due process violation under the waiver of jurisdiction theory. See Piper v. Estelle, 485 F.2d 245 (5th Cir.1973); Shields v. Beto, 370 F.2d 1003 (5th Cir.1967); see also Mobley v. Dugger, 823 F.2d 1495, 1496-97 (11th Cir.1987) (citing the Piper case).
“The waiver of jurisdiction theory is premised on the constitutional protection against arbitrary and capricious official action. See Camper v. Norris, 36 F.3d 782, 784 (8th Cir.1994); Mobley, 823 F.2d at 1496. The theory is commonly traced to our decision in Shields. In Shields, we held the state’s inaction for 28 years constituted a waiver of its jurisdiction over the prisoner. 370 F.2d at 1005-06. We further explained the state violated the prisoner’s due process rights when it required him to serve his sentence after waiving its jurisdiction over him. Id. at 1006. In Piper, we clarified Shields, explaining when it is that official misconduct rises to the level of a due process violation. See 485 F.2d at 246. We explained:
“ ‘[In order for a delay in the execution of a sentence to be repugnant to the Fourteenth Amendment,] it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with “fundamental principles of liberty and justice” to require a legal sentence to be served in the aftermath of such action or inaction.’
“Mobley, 823 F.2d at 1496-97 (alteration in original) (quoting Piper, 485 F.2d at 246).

396 F.3d at 1148-49.

After concluding that the Government’s conduct in Barfield did not constitute a due-process violation under the facts presented, the Court noted, but declined to apply, the more stringent standard that was discussed in Hawkins:

“The Government suggests we apply an even more stringent standard than the Shields/Piper test. The Government points to the Fourth Circuit’s decision in Hawkins, holding the Shields/Piper test ‘fails to embody the full stringency of the ‘shocks-the-conscience’ standard mandated by the Supreme Court in substantive due process cases. 195 F.3d at 744. As the Supreme Court has explained, to establish a substantive due process violation in cases involving executive action, the plaintiff must prove the challenged conduct is so egregious that it ‘shocks the conscience.’ County of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 1716-17 & n. 8, 140 L.Ed.2d 1043 (1998). However, we need not decide this issue because Barfield’s due process claim fails even under the less stringent Shields/Piper standard.”

396 F.3d at 1149 n. 8.

After carefully reviewing the record in the present case, we hold that Williams failed to establish that the Board acted outside its statutory authority. Williams did not prove that the Board’s inaction was “so affirmatively wrong” or “so grossly negligent” that it would be unequivocally inconsistent with the fundamental principles of liberty and justice to require him to serve his full sentence. The evidence presented by Williams at the November 12, 2003, hearing indicated that the Board acted promptly in accordance with its statutory duty to declare Williams delinquent and to obtain the DOC’s assistance in returning him to Alabama. By correspondence dated August 25, 1995, the OAPA requested that the Board issue a warrant for Williams’s arrest and return to Alabama for a hearing on the alleged parole violation. On September 7, 1995, the Board authorized the issuance of the warrant and directed the DOC to immediately issue the warrant. The Board declared Williams delinquent on September 11, 1995. The evidence provided no insight into the reason for the DOC’s delay in issuing the warrant. The evidence did indicate that the Board did not follow up to ensure that the DOC had issued the warrant, as the DOC was required to do under § 15-22-31(a). Even assuming that the Board had a duty to go behind the DOC to ensure the issuance of the warrant, Williams did not introduce any evidence indicating that the Board’s inaction in that respect, or the DOC’s inaction for that matter, was anything more than an administrative mistake or oversight or, perhaps, indicative of “a lack of eager pursuit” or a “lack of interest” on the part of the Board and the DOC, none of which is a sufficient ground for finding a due-process violation. As the cases referenced above indicate, the Shields/Piper standard was not intended as a trap for unwary state officials; it carries a heavy burden of proof. Williams did not satisfy that burden.

Post-Custody Delay

In Morrissey v. Brewer; 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court held that a parolee is constitutionally entitled to certain due-process protections before parole may be revoked. One of those requirements is that a final revocation hearing must be held within a reasonable time after execution of the parole violator’s warrant. See, e.g., D’Amato v. United States Parole Comm’n, 837 F.2d 72 (2d Cir.1988), discussing Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).

Where an unreasonable delay exists between the execution of a warrant charging a parolee with a parole violation and the holding of the revocation hearing, a principled analysis of the due-process issue posed by such a delay necessarily gravitates toward consideration of several factors, including the reason for the delay, the circumstances under which the parolee asserted the due-process claim, and the extent of any prejudice that may have resulted from the delay. For this reason, several federal circuit courts of appeal review due-process claims like the one raised by Williams by considering various factors and applying an analysis similar to the one used to address Sixth Amendment speedy-trial claims under Barker v. Wingo, supra. See, e.g., Hanahan v. Luther, 688 F.2d 844 (7th Cir.1982); United States ex rel. Sims v. Sielaff, 563 F.2d 821 (7th Cir.1977); Bryant v. Grinner, 563 F.2d 871 (7th Cir.1977); Smith v. United States, 577 F.2d 1025 (5th Cir.1978); Gaddy v. Michael, 519 F.2d 669 (4th Cir.1975); McNeal v. United States, 553 F.2d 66 (10th Cir.1977); and Shelton v. United States Bd. of Parole, 388 F.2d 567 (C.A.D.C.1967). See also 2 Neil P. Cohen, The Law of Probation and Parole § 26.6 (2d ed.1999), and the cases cited therein. In that treatise, we find the following discussion:

“In addition to statutory time limits, a constitutional standard is also applicable. In holding that due process requires a final revocation hearing, however, the Supreme Court in Morrissey v. Brewer[, 408 U.S. 471 (1972),] was unwilling to set a specific deadline for the hearing. Speaking only in general terms, the Court held: ‘The revocation hearing must be tendered within a reasonable time after the parolee is taken into custody. A lapse of two months ... would not appear to be unreasonable.’ [408 U.S. at 488.]
“Since the hearing must be held within a reasonable time after the offender is taken into custody, the triggering event is custody rather than the conclusion of a preliminary hearing. Morris-sey does not appear to establish time limits if the alleged violator is not taken into custody.
“Moreover, in Moody v. Daggett, [429 U.S. 78 (1976),] the Supreme Court made it clear that the clock begins to run for due process purposes only when custody is the product of a violation warrant as opposed to a new offense. In Moody a federal parolee was convicted of other crimes and sentenced to prison for 10 years. The United States parole authorities lodged an unexecuted violator warrant as a detainer, which effectively stopped prison officials from releasing the offender until the parole authorities had an opportunity to execute the violator warrant. The Supreme Court held that, under the facts of the case, the mere lodging of the detainer did not deprive the already-incarcerated offender of any liberty interest protected by due process. Accordingly, Mor-rissey’s requirement of a final hearing within a reasonable time does not apply until after the violator warrant has been executed and the offender has been taken into custody.
“Statutory guidelines, of course, may mandate that a hearing be held before the date dictated by due process.
“Although the reasonable time standard is by itself not particularly enlightening, the Morrissey Court did provide some guidance in its interpretation. By noting that a two-month delay would not generally be unreasonable, the Court acknowledged that some delay is acceptable. Conversely, by selecting two months as its sole example of an acceptable delay, the Court may have been trying to say that the final hearing should not be put off for longer than a moderately short period.
“As one might expect, courts have reached widely varying conclusions on when Morrissey requires the final hearing to be held.
“Due process requires that a reasonable time be allowed for the alleged violator to prepare for the hearing. It is generally held, however, that the revocation need not be delayed until after other pending criminal charges are resolved.
“Courts faced with a challenge to a delay in a final hearing must determine whether the delay was unreasonable. Drawing an analogy to speedy trial principles, they often consider some or all of the following factors: the length of and reason for the delay, the alleged violator’s efforts to obtain a prompt hearing, and most importantly, - the prejudice ' caused by the delay.
“Almost invariably, where the parolee has been incarcerated the entire time or almost the entire time of the alleged unlawful delay, courts find that the parolee has suffered no prejudice as a result of the delay.
“In assessing the reason for the delay, courts routinely hear, and often accept, claims that administrative backlogs are at least partially responsible for the tardy hearing. Administrative blunders, however, are viewed less favorably. On the other hand, if the offender is in another jurisdiction, many courts will not count delays resulting from the offender’s absence from the state if the state made reasonable efforts to acquire jurisdiction.
“The state’s motive is examined to determine if the delay was the product of bad faith or an attempt to further the state’s case or weaken the alleged violator’s defense. A delay to permit intervening charges to be resolved is generally approved. A delay caused by an honest desire to help the violator is also viewed with favor. And a delay caused by judicial activity has not been attributed to improper state action.
“Just as the reason for the delay is important, so are the alleged violator’s efforts to obtain a timely hearing. Violators who cause a delay may not profit from it. A similar result is reached if the offender consented to the delay, although a determination should be made that the consent was knowing and intelligent. The failure to request a timely hearing also is viewed as a factor in favor of the state.
“While the reason for the delay and the offender’s efforts to avoid it are important, by far the most significant factor is the prejudice caused by the delay. A few courts have presumed prejudice from the length of the delay, but most hold that the existence or absence of prejudice must be determined on a case-by-case basis. The strongest example of prejudice is proof that specific evidence was lost as the result of the delay. Even then, if the violation is admitted or is based on a new criminal conviction, the loss of witnesses will generally not be considered prejudicial.
“There is some authority for the view that the delay in holding a final revocation hearing can be longer if there has been a preliminary revocation hearing. Apparently the preliminary hearing removes some of the prejudice potentially flowing from a tardy final hearing. In any event, a failure to prove prejudice will usually cause the court to dismiss the delay claim.”

Id. (footnote omitted).

Consideration of the Barker factors in this due-process context, especially the requirement that prejudice be shown, is also discussed in 59 Am.Jur.2d Pardon and Parole § 146 (2002), in pertinent part, as follows:

“The final revocation hearing must be held within a reasonable time after the parolee is taken into custody, even in those situations where the violation of parole is not disputed. The determination of the reasonableness of a delay between the time a parolee is taken into custody and the time of a revocation hearing must, to some degree, turn on the circumstance of each case, with some delays deemed reasonable. The Supreme Court, in Morrissey v. Brewer, [408 U.S. 471 (1972),] stated in dictum that a lapse of two months would' not appear to be unreasonable.
“Nevertheless, a parolee’s claim that his or her due process rights have been violated by the delay preceding his or her parole revocation hearing cannot be judged using arbitrary guidelines. Rather, the standards for determining whether a defendant’s constitutional right to a speedy trial has been denied must be applied. The four factors to be considered are the length of the delay, the reasons for the delay, the defendant’s assertion of his or her right to a speedy trial, and the prejudice to the defendant as a result of the delay. However, although the fact that a parolee has a more limited due process right than does one accused of a crime does not mean that the parolee’s right to a prompt hearing is to be judged more stingily than an accused’s right to a speedy trial, it does cut against a rule that would achieve the converse result.
“A parolee must bear the burden of demonstrating that a delay in a revocation hearing is unreasonable or that the parolee was prejudiced by the delay; the mere fact that a revocation hearing was delayed, without more, is insufficient to show an unreasonable delay. A parolee who seeks to claim prejudice on the basis of a delay in a parole revocation hearing must show what evidence and what witnesses would have presented at a timely hearing which were unavailable because of the delay and, absent such a showing, the parolee may not claim prejudice in that regard.... ”

(Footnotes omitted.) See also 67A C.J.S. Pardon & Parole §§ 79-82 (2002).

Federal and state courts that have considered the issue hold that the focal point of the inquiry is usually whether actual prejudice has occurred. Normally, delay, in and of itself, will not suffice to show prejudice, although it may, under certain circumstances, give rise to a rebut-table presumption of prejudice. See, e.g., Gaddy v. Michael, supra; Shelton v. United States Bd. of Parole, supra; Smith v. United States, supra; and N. Cohen, supra, § 26.6 n. 12. The reason for this emphasis on prejudice is readily apparent — freeing a person who has been fairly determined to have violated his parole, even though that person has not been significantly prejudiced by a delayed revocation hearing, would be “very strong medicine” indeed for the Board. See, e.g., United States ex rel. Sims v. Sielaff, 563 F.2d at 828-29; and Smith v. United States, 577 F.2d at 1028. This is especially so when a parolee cannot relitigate issues determined against him in other forums, as in the situation, such as the one presented here, where the revocation is based on conviction of another crime. See Morrissey, 408 U.S. at 490, 92 S.Ct. 2593; Moody v. Daggett, 429 U.S. at 79-80, 97 S.Ct. 274.

In addition, we note that this Court in James v. State, 686 So.2d 1290 (Ala.Crim. App.1996), cited with approval Cohen’s treatise, including the discussion recognizing that courts draw an analogy to speedy-trial principles in cases involving the timeliness of revocation hearings in the context of probation and parole revocation.

Persuaded by the reasoning of the various courts referenced above and based on our decision in James, we hold that where an unreasonable delay is alleged to exist between the execution of a parole violator’s warrant and the holding of the final revocation hearing, the four Barker factors used to address speedy-trial claims should be considered in determining whether a petitioner such as Williams has been denied due process and is entitled to be released from custody.

The record indicates that the total time that elapsed between Williams’s return to Alabama in September 2000 and the parole hearing held on January 28, 2003, was approximately 28 to 29 months. A 28- to 29-month delay between the execution of a parole violator’s warrant and a final revocation hearing is, in our view, unreasonable and presumptively prejudicial. However, such a long delay, although an important factor to be considered in determining whether there has been a deprivation of due process, is not determinative. The Board correctly points out that for approximately 9 to 11 months of that period Williams was in Washington, D.C., in connection with the federal charges that he was facing there. Likewise, the record indicates that the DOC’s transfer of Williams from Balby Correctional Facility to Staton Correctional Facility and the request by Williams’s lawyer for a continuance of the August 14, 2002, parole hearing resulted in delays that were beyond the Board’s control and that should not be counted against it. Therefore, we agree with the Board that the actual delay that can be reasonably attributed to the Board is 10 to 13 months. The Board could not explain the reason for even a 10-to 13-month delay; it did, however, concede that such a delay was too long, and it represented that such a long delay was not indicative of the Board’s normal procedures. The Board also correctly points out that Williams waited over 2 years and 9 months after his return to Alabama to raise the due-process issue. Therefore, Williams bears at least some of the responsibility for the delay in that he failed to assert his rights promptly.

Finally, and, we think, most importantly, we must agree with the Board that Williams failed to prove that he suffered prejudice as a result of the delay. Williams had already been convicted in Ohio on the charge that formed the basis for the revocation, leaving only the issue of mitigation to be considered by the Board. Williams failed to show that the Board’s 10- to 13-month delay in holding the parole hearing prevented any potential witness from testifying or prevented the introduction of any exculpatory or mitigating evidence at the parole hearing. See, e.g., James v. State, supra; Small v. Britton, 500 F.2d 299 (10th Cir.1974); Hackett v. State, 354 N.W.2d 247 (Iowa Ct.App.1984). Although witnesses and evidence may play an important role in support of an argument for mitigation, the loss of witnesses and evidence as a reason for finding prejudice would appear to have greater relevancy where the fact of a violation is in dispute. The loss of witnesses and evidence carries less significance where the fact of the violation is conclusively established by the criminal conviction itself. See, e.g., Gaddy v. Michael, 519 F.2d at 677-78. In addition, Williams speculated, but in no way demonstrated, that holding the parole hearing any earlier would have changed the outcome of the hearing or the Board’s decision to revoke his parole. In fact, as the Supreme Court pointed out in Moody v. Daggett, 429 U.S. at 89, 97 S.Ct. 274, although in a different context, some delay in holding a final revocation hearing may be more beneficial than prejudicial to an alleged parole violator where the only remaining inquiry is whether facts and circumstances exist to mitigate the Board’s predilection to revoke parole:

“Finally, there is a practical aspect to consider, for in cases such as this, in which the parolee admits or has been convicted of an offense plainly constituting a parole violation, the only remaining inquiry is whether continued release is justified notwithstanding the violation. This is uniquely a ‘prediction as to the ability of the individual to live in society without committing antisocial acts.’ Morrissey, [408 U.S.] at 480, 92 S.Ct. at 2599 [(1972)]. In making this prophecy, a parolee’s institutional record can be perhaps one of the most significant factors. Forcing decision immediately after imprisonment would not only deprive the parole authority of this vital information, but since the other most salient factor would be the parolee’s recent convictions, here a double homicide, a decision to revoke parole would often be foreordained. Given the predictive nature of the hearing, it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate at the expiration of the parolee’s intervening sentence.”

See also Fitzpatrick v. United States Parole Comm’n, 444 F.Supp. 1802, 1305 (M.D.Pa.1978).

Furthermore, to the extent Williams may have suffered anxiety from the uncertainty caused by the Board’s delay in holding the parole hearing, that anxiety does not constitute serious prejudice under the facts presented here. Any anxiety he may have suffered probably was caused by the knowledge that he had been convicted of another offense in Ohio and that that conviction would weigh heavily on the Board’s decision whether to revoke his parole. As the United States Court of Appeals for the Seventh Circuit noted in United States v. Scott, 850 F.2d 316, 321 (7th Cir.1988), “anxiety and anguish are an ‘inevitable result of criminal prosecution’ ... and imprisonment.”

Lastly, we note that Williams actually began serving the balance of his sentence on the date of his rearrest as a delinquent parolee, see § 15-22-32, Ala.Code 1975, even though there was a delay in the revocation process. We also note that even if his parole hearing had been held earlier and the Board had not revoked his parole, Williams would not have been released from custody. He would have been transferred to the custody of federal authorities either to stand trial on the federal charges in Washington, D.C., if the parole hearing had been held when Williams was initially returned to Alabama in September 2000, or to begin serving his sentences for the Washington, D.C., convictions, if the parole court had been held after Williams was returned to Alabama the second time in December 2001.

Taking all of these factors into consideration, we hold that Williams failed to demonstrate that the Board’s delay in holding the parole hearing rose to the level of a constitutional violation.

Conclusion

After reviewing the record in this case, we share the circuit court’s concern that Williams’s final revocation hearing was not held until over seven years after he had been declared delinquent for committing another offense in Ohio. However, when the issues, as presented, are addressed in accordance with the standards applicable to pre-custody delay in issuing and executing a parole violator’s warrant and post-custody delay in holding a final revocation hearing, we can find no constitutional violation. Therefore, in accordance with our standard for reviewing the Board’s action, as set out in Ellard, supra, we hold that the circuit court erred in granting Williams’s certiorari petition and reinstating his parole.

For the foregoing reasons, the circuit court’s judgment reinstating Williams’s parole is reversed and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Pursuant to § 12-3-9, Ala.Code 1975, this Court has appellate jurisdiction over postcon-viction writs in criminal cases. Certiorari petitions challenging the Board’s revocation of parole are considered postconviction writs for purposes of § 12-3-9. See Ex parte Alabama Board of Pardons & Paroles, 849 So.2d 255 (Ala.Crim.App.2002). The Board filed a timely notice of appeal pursuant to § 6-6-641, Ala.Code 1975. See Dearborn Stove Co. v. Dean, 269 Ala. 561, 115 So.2d 258 (1959) (holding that § 1074, T.7, Code 1940, the predecessor to § 6-6-641, provides for appeals from final judgments of circuit courts in certiorari proceedings); and Ex parte Wright, 860 So.2d 1253 (Ala.2002) (noting that in all cases in which an appeal is permitted by law as of right to the Alabama Supreme Court or to a court of appeals, the notice of appeal required by Rule 3, Ala.R.App.P., shall be filed with the clerk of the trial court within 42 days of the date of the entry of the judgment or order appealed from).

      . An interstate compact is an agreement among participating states. Under this compact parolees, under certain circumstances, are allowed to transfer from one state to another for supervision. See § 15-22-1, Ala. Code 1975.

      . Ohio records indicate that Williams is a recidivist offender with a long history of criminal activity.

      . Section 15-22-31(a) provides:
      "(a) If the parole officer having charge of a paroled prisoner or any member of the Board of Pardons and Paroles shall have reasonable cause to believe that such prisoner has lapsed, or is probably about to lapse, into criminal ways or company or has violated the conditions of his parole in an important respect, such officer or board member shall report such fact to the Department of Corrections, which shall thereupon issue a warrant for the retaking of such prisoner and his return to the prison designated.”

      . Williams was apparently arrested on August 30, 1980, and charged with receiving stolen property in Ohio; that case was still pending when he was arrested in 1995 and charged with the drug offense. Williams received a six-month sentence for the receiving-stolen-property conviction; that sentence was to run concurrently with the six-month sentence he received in the drug case. The receiving-stolen-property charge was apparently unknown to Alabama authorities when Williams was paroled on March 13, 1995. The record indicates that because the receiving-stolen-property charge predated Williams’s parole, his conviction on that charge was not used as a basis for revoking his parole.

      . The Board states in its brief that "[i]t is ... undisputed that the Ohio Adult Parole Authority closed its interest in supervising Williams pursuant to the Interstate Compact after the Alabama Board of Pardons and Paroles declared him delinquent and sought a warrant pursuant to statute.” (Board’s June 9, 2005, brief at p. 5.) However, the Board cites to no part of the record in support of this statement; likewise, we have found nothing in the record indicating that the OAPA "closed its interest” in supervising Williams. Williams testified at the hearing on his certiorari petition. He stated that he notified Alabama authorities that he had been released from custody in Ohio and inquired as to whether there was an outstanding warrant for his arrest. He stated that he was told that there was no outstanding warrant and he continued to report to the OAPA after his release. There appears to be nothing in the record to refute Williams's claim that he continued under the supervision of the OAPA for some period following his release in Ohio.

      . Hearings on the petition had also been held on October 15, 2002, and February 12, 2003.

      . We note that Williams did not argue at the hearing, and he does not argue on appeal, that the Board lost jurisdiction over him pursuant to Ohio’s agreement under the interstate compact to supervise him. Furthermore, he did not argue at the hearing, and he does not argue on appeal, that the Board was barred under the doctrines of res judicata and collateral estoppel from proceeding with the revocation process. Based on our review of the transcript of the hearing and the briefs on appeal, we conclude that Williams has abandoned those arguments.
      We also note Williams's argument that the post-custody delay in holding the parole hearing violated the speedy-disposition provisions of the Interstate Agreement on Detainer’s ("the IAD"). However, the parole-violation charge in this case is not subject to the IAD. See Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985); see also Headrick v. State, 816 So.2d 517 (Ala.Crim.App.2001).

      . As previously noted, nothing in the record refutes Williams's claims that he notified Alabama authorities that he had been released from custody in Ohio and that he continued under the supervision of the OAPA for some period following his release from custody in Ohio. Because there is no support for it in the record, we find unpersuasive the Board's argument that Williams absconded supervision following his release from custody in Ohio.
      We also note the Board's argument that the circuit court erred in soliciting and considering information from outside the record made in connection with the revocation proceedings. Relying on Sanders v. City of Dothan, 642 So.2d 437 (Ala.1994), the Board states:
      "The trial court erred when it entertained matters outside the agency's record. In particular, the court ordered production of a list of delinquent parolees. This material was clearly inadmissible upon review of the decisions to revoke Williams’s parole....”
      (Board’s May 3, 2005, brief at p. 16.)
      The Board cites Sanders for the proposition that, on certiorari review, the scope of the circuit court’s inquiry into an agency’s decision is restricted to the record made before the agency under review. Although the record indicates that the Board objected at the hearing to Williams’s testimony and to various of the exhibits that were admitted into evidence, the Board has limited its argument on appeal to the admissibility of the list of delinquent parolees requested by the circuit court. Therefore, the Board has waived for purposes of this appeal the issue concerning the admissibility of any evidence introduced at the hearing other than the list of delinquent parolees. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”). With respect to the list of delinquent parolees, we can find no indication in the record that it played any role in the circuit court’s decision to reinstate Williams's parole. Accordingly, we conclude that any error in the admission of that list into evidence at the hearing was harmless.

      “ 6 Finding common law antecedents of this theory (and a related one of ‘implied pardon’) in a few federal and state cases, Shields adopted it as a constitutional rule in a habeas case in which a state had incarcerated a prisoner 28 years after it had released him in mid-sentence to another state and 18 years after the latter state had paroled him in the absence of any detainer filing by the incarcerating state. See Shields, 370 F.2d at 1003-04.

      “ 7 See Camper v. Norris, 36 F.3d 782 (8th Cir.1994); [United States v.] Martinez, 837 F.2d 861 [(9th Cir.1988)]; Mobley v. Dugger, 823 F.2d 1495 (11th Cir.1987); Green v. Christiansen, 732 F.2d 1397 (9th Cir.1984); Mathes v. Pierpont, 725 F.2d 77 (8th Cir.1984); Piper [v. Estelle], 485 F.2d 245 [(5th Cir.1973)]; Patterson v. O’Dea, [No. 95-6561] (6th Cir.1996) (unpublished); Hallums v. Hambrick, [No. 63-6632] (6th Cir.1994) (unpublished); Mistretta v. Whalen, [No. 92-1311] (7th Cir.1993) (unpublished); Christian v. Smith, [No. 90-6482] (6th Cir.1991) (unpublished); Sterling v. Maggio, 505 F.Supp. 1111 (M.D.La.1981); Farley [v. Nelson], 469 F.Supp. 796 [(D.C.Conn.1979)]; Bailey v. Ciccone, 420 F.Supp. 344 (W.D.Mo.1976); Esquivel v. Estelle, 426 F.Supp. 619 (W.D.Tex.1976), aff'd, 547 F.2d 309 (5th Cir.1977); Clifton v. Beto, 298 F.Supp. 1384 (S.D.Tex.1968), aff'd on other grounds, 411 F.2d 1226 (5th Cir. 1969); United States v. Vann, 207 F.Supp. 108 (E.D.N.Y.1962); United States v. Brandt, [No. 87-C-5113] (N.D.Ill.Aug.26, 1987) (unpublished). But see Shields [v. Beto], 370 F.2d 1003 [(5th Cir.1967)] (finding for prisoner on the facts); Johnson [v. Williford], 682 F.2d 868 [(9th Cir.1982)] (same) (alternative ground); Lanier v. Williams, 361 F.Supp. 944 (E.D.N.C.1973) (same); Shelton [v. Ciccone], 578 F.2d 1241 [(8th Cir.1978)] (granting prisoner evidentiary hearing on issue of waiver); see also United States v. Merritt, 478 F.Supp. 804 (D.D.C.1979) (applying Piper standard to require release of prisoner where time spent on erroneous release would, if credited, have caused sentence to expire).”

      “Most courts applying the Shields/Piper standard have concluded its heavy burden was not satisfied on the facts of the particular case. See, e.g., Hawkins v. Freeman, 195 F.3d 732, 744 & n. 7 (4th Cir.1999) (listing several cases where the standard was not met); Camper, 36 F.3d at 784-85 (no due process violation where execution of sentence was delayed for four years); [United States v.] Martinez, 837 F.2d [861] 864-65 [(9th Cir.1988)] (finding no due process violation when execution of prisoner’s sentence was delayed for seven and one-half years); Mobley, 823 F.2d at 1496-97 (seven-year delay did not constitute due process violation); Piper, 485 F.2d at 246 (no due process violation).”

      . We have found no specific statutory provision imposing an affirmative duty on the Board to follow up once it has authorized the DOC to issue a parole violator’s warrant, and we decline to recognize such a duty in this case. We note that the authorization form used by the Board here stated: "You are further directed to notify this office of the return of the aforementioned paroled prisoner.” This suggests that under current practice the Board relies on the DOC to notify it when a parolee has been located and returned.

      . We note that the Board has not suggested that we apply the more stringent "shocks the conscience” standard discussed in Hawkins. Like the Court in Barfield, we find it unnecessary to review this case under that standard because Williams's due-process claim fails even under the less stringent standard.

      . The corresponding statutory requirement in Alabama is found in § 15-22-32(a), which provides:
      "Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his or her parole, the Board of Pardons and Paroles, at its next meeting, shall declare the prisoner to be delinquent, and time owed shall date from the delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his or her parole. Thereupon, the board, a single member of the board, a parole revocation hearing officer, or a designated parole officer shall, as soon as practicable, hold a parole court at the prison or at another place as it may determine and consider the case of the parole violator, who shall be given an opportunity to appear personally or by counsel before the board or the parole court and produce witnesses and explain the charges made against him or her. The board member, parole revocation hearing officer, or a designated parole officer, acting as a parole court, shall, within a reasonable time, conduct the parole revocation hearing to determine guilt or innocence of the charges and may recommend to the board revocation or reinstatement of parole. Upon revocation of parole, the board may require the prisoner to serve out in prison the balance of the term for which he or she was originally sentenced, calculated from the date of delinquency or the part thereof as it may determine. The delinquent parolee shall be deemed to have begun serving the balance of the time required on the date of his or her rearrest as a delinquent parolee.”
      Because Williams's claim is based on the Due Process Clause of the Fourteenth Amendment and not on state-law grounds, and because § 15-22-32(a) otherwise sheds no light on what the Alabama legislature may think is a reasonable delay in holding a revocation hearing, we find it unnecessary to address this section.

      . Shelton was decided before Barker; however, the Shelton Court placed great emphasis on the length of the delay and prejudice resulting from the delay.

      . The determination of reasonableness must, to some degree, turn on the circumstances of each case. See, e.g., Creech v. United States Bd. of Parole, 538 F.2d 205 (8th Cir.1976); Thomas v. State Bd. of Parole, 220 N.W.2d 874 (Iowa 1974).


source: Caselaw Access Project

license: Public Domain

text:
    Christopher Timothy WILSON v. STATE of Alabama.
    CR-04-1448.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2005.

      Christopher Timothy Wilson, pro se.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   SHAW, Judge.

Christopher Timothy Wilson appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his February 9, 2004, convictions for three counts of unlawful distribution of a controlled substance and one count of trafficking in cocaine, entered pursuant to guilty pleas, and his resulting sentences of 20 years’ imprisonment for each of the distribution convictions and 25 years’ imprisonment for the trafficking conviction, the sentences to run concurrently. These sentences included five-year enhancements under both §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. Wilson indicated in his Rule 32 petition that he did not appeal his convictions or his sentences.

Wilson filed his Rule 32 petition on August 16, 2004. As best we can discern, Wilson alleged in his petition that he was not made aware that his sentences would be enhanced by the application of §§ 13A-12-250 and 13A-12-270 because, he said, neither his trial counsel nor the trial court advised him that these enhancements would apply to his sentences and, therefore, he argues, his pleas were involuntary. The State filed a response, in which it maintained that Wilson was not entitled to any relief on his claims because, it said, he had executed “Court’s Exhibit A” and “Court’s Exhibit B” when he entered his guilty pleas and these documents demonstrate that Wilson had entered his guilty pleas with a full understanding of the nature of the charges and the consequences of the pleas, that he was aware of the terms of his plea agreement when he entered his guilty pleas, and that he was satisfied with his trial counsel’s representation at the time he entered his guilty pleas.

On September 21, 2004, Wilson moved to amend his Rule 32 petition and he requested that the circuit court allow him 30 days to amend the petition to include a jurisdictional claim. On October 14, 2004, Wilson filed an amended petition alleging three grounds in support of his jurisdictional claim. On March 29, 2005, the circuit court summarily denied Wilson’s Rule 32 petition, and on that same date the circuit court denied his motion to amend his Rule 32 petition and his amended Rule 32 petition.

I.

Wilson contends that before he entered his guilty pleas, neither his trial counsel nor the trial court advised him that his sentences would be subject to enhancements under §§ 13A-12-250 and 13A-12-270. Rule 14.4, Ala.R.Crim.P., provides, in pertinent part:

“(a) Colloquy With Defendant.... [T]he court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.”

(Emphasis added.) In Aaron v. State, 673 So.2d 849, 849-50 (Ala.Crim.App.1995), this Court stated:

“The Alabama Supreme Court and this Court ‘have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.’ Ex parte Rivers, 597 So.2d 1308, 1309 (Ala.1991). It is well settled, moreover, that ‘if the appellant’s sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute.’ Elrod v. State, 629 So.2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So.2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So.2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So.2d 182 (Ala.Cr.App.1986).”

Although the State contended in its response that Wilson voluntarily and intelligently entered his guilty pleas with a full understanding of the nature of the charges and the consequences of the pleas, the record does not demonstrate whether Wilson was, in fact, properly informed of the minimum and maximum sentence he could receive when he entered his guilty pleas because the record does not contain a copy of either “Court’s Exhibit A” or “Court’s Exhibit B,” referred to in the State’s response, or a transcript of the guilty-plea colloquy. Waddle v. State, 784 So.2d 367, 369-70 (Ala.Crim.App.2000). Therefore, we must remand this case for the circuit court to address the merits of Wilson’s claim regarding the voluntariness of his pleas.

II.

Wilson also contends that the circuit court erred in denying his motion to amend his Rule 32 petition. The case action summary for case nos. CC-03-3706.60, CC-03-3708.60, and CC-03-3709.60 contain the following entries:

“3/29/05 Motion to amend Rule 32 petition denied.
“3/29/05 Amended Rule 32 petition denied.”

(C. 1, 76, 89.) The case action summary for case no. CC-03-3707.60 contains the following entry:

“3/29/05 Motion to amend Rule 32 petition denied.”

(C. 63.) It is unclear from these entries whether the circuit court denied the motion to amend the Rule 32 petition or whether the circuit court did, in fact, consider the amended Rule 32 petition and deny it.

“Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment,” Rule 32.7(b), Ala.R.Crim.P., and “shall be freely granted,” Rule 32.7(d), Ala.R.Crim.P. Whether to allow an amendment to a Rule 32 petition is within the circuit court’s discretion, but amendments should be allowed “if necessary for a full and fair determination on the merits.” Allen v. State, 825 So.2d 264, 268 (Ala.Crim.App.2001), aff'd, 825 So.2d 271 (Ala.2002). “[G]rounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.” Ex parte Rhone, 900 So.2d 455, 458 (Ala.2004). In addition, “the trial court, in its discretion, may deny the petition to amend if it determines that the petition is ‘not sufficiently specific, is precluded, or fails to state a claim, or that no material issue of fact or law exists’ that would allow relief.” Ex parte Stringfellow, 565 So.2d 147, 149 (Ala.1990), quoting Rule 20.7(d), Ala.Temp.R.Crim.P., now Rule 32.7(d), Ala.R.Crim.P.

It is clear that allowing the amendment in this case — which was filed more than five months before the circuit court summarily denied the petition — would not have prejudiced the State or caused undue delay in the Rule 32 proceedings. Thus, if the circuit court did, in fact, deny Wilson’s motion to amend his Rule 32 petition, we find that this denial was erroneous because although two of the grounds raised in the amended petition — “Amended Ground ‘A’ ” and “Amended Ground ‘C’ ” — do not warrant any relief, one of the grounds raised in the amended petition — “Amended Ground ‘B’ ” — is a valid illegal-sentence claim that needs to be addressed by the circuit court.

In his amended petition, Wilson alleged in “Amended Ground ‘A’ ” (C. 53) that the indictment was defective because it did not allege a mental state for the distribution charges. However, this claim is not sufficiently pleaded because Wilson does not set out what was alleged in the indictment, and this claim is without merit because although the trafficking statute, § 13A-12-231, Ala.Code 1975, requires that the defendant “knowingly” commit the act, the distribution statute, § 13A-12-211, Ala.Code 1975, does not have any such requirement. Wilson also alleged in “Amended Ground ‘C’ ” of his amended petition (C. 56) that the trial court was without jurisdiction to render judgment or to impose sentence because, he said, it did not impose the mandatory fines. This claim is meritless on its face because the imposition of mandatory fines does not impact the trial court’s jurisdiction to render the judgment or to impose the sentence. However, as previously noted, “Amended Ground ‘B’ ” (C. 55) is a valid illegal-sentence claim regarding whether the enhancements under §§ 13A-12-250 and 13A-12-270 were properly applied to Wilson’s trafficking conviction. The circuit court needs to determine the basis of Wilson’s trafficking conviction—-whether it involved the possession of cocaine, as Wilson alleges, or the sale of cocaine—in order to determine whether the enhancements were properly applied to his trafficking conviction.

Thus, on remand, the circuit court should issue an order stating whether it denied Wilson’s motion to amend and, if it did, to set aside that denial and accept the amended petition and issue an order addressing the ground Wilson raised in his amended petition that the enhancements were improperly applied to his trafficking conviction; the order should also set out the circuit court’s findings of fact and determination regarding that ground. If the circuit court granted the motion to amend, but denied the amended petition on March 29, 2005, then on remand the circuit court should issue an order setting out its findings of fact and determination regarding the ground in the amendment that the enhancements were improperly applied to Wilson’s trafficking conviction.

III.

Based on the foregoing, we remand this case for the circuit court (1) to address the merits of Wilson’s claim that his guilty pleas were rendered involuntary because he was not advised that the enhancements under §§ 13A-12-250 and 13A-12-270 would be applied to his sentences; (2) to issue an order stating whether it denied Wilson’s motion to amend his Rule 32 petition and, if it did, to set aside that denial and accept the amendment; and (3) to address the claim in the amendment that the enhancements in §§ 13A-12-250 and 13A-12-270 were improperly applied to Wilson’s sentence for the trafficking conviction. On remand, the circuit court may conduct an evidentiary hearing or take evidence in the form of written affidavits, depositions, or interrogatories, and it shall issue specific written findings of fact regarding the claims above. If the circuit court determines that Wilson is entitled to relief on either of the claims, it may grant whatever relief it deems necessary. Due return shall be filed with this Court no later than 49 days from the date of this opinion. The return to remand shall include the circuit court’s written findings of fact; a transcript of the evidentiary hearing, if one is conducted; “Court’s Exhibits A and B” referred to in the State’s response; any other evidence received or relied on by the court; and a transcript of the guilty-plea colloquy.

REMANDED WITH DIRECTIONS.

McMILLAN, PM., and COBB, BASCHAB, and WISE, JJ., concur.

      . See Part II of this opinion.


author: ROTHENBERG, Judge.

text:
    OCEAN CLUB COMMUNITY ASSOCIATION, INC., Appellant, v. Peter CURTIS, Appellee.
    Nos. 3D06-132, 3D05-1464.
    District Court of Appeal of Florida, Third District.
    April 5, 2006.
    Rehearing Denied Aug. 31, 2006.

      Douberley & Cicero and Thomas A. Gro-endyke, for appellant.
    Lorenzo & Capua and Peter Marcellus Capua, Miami, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

In this consolidated appeal, the defendant, Ocean Club Community Association, Inc. (“OCCA”), appeals from orders awarding attorney’s fees and costs to the plaintiff, Peter Curtis. We affirm, in part, reverse, in part, and remand for further proceedings consistent with this opinion.

The plaintiff was the tennis director at OCCA. After he was terminated, he filed an amended complaint, asserting three causes of action: breach of employment contract, conversion, and defamation. The conversion count, which contains a claim for attorney’s fees, stems from the plaintiffs allegation that OCCA withheld income that he had earned by giving tennis lessons.

On April 1, 2004, OCCA served the plaintiff with a proposal of settlement, offering to settle for $15,000, which the plaintiff did not accept. A few months later, on June 28, 2004, the breach of contract claim was dismissed on summary judgment and, at the non-jury trial held in November 2004, the plaintiffs defamation claim was dismissed. Following the non-jury trial, in December 2004, the trial court entered a final judgment awarding $1,717.82 to the plaintiff on the conversion/unpaid wages claim, which this court affirmed on appeal. Ocean Club Cmty. Ass’n v. Curtis, 934 So.2d 522 (Fla. 3d DCA 2005).

The plaintiffs attorney, Peter Capua, submitted a verified petition for attorney’s fees, which was supported by a copy of the attorney engagement agreement, an attorney fee affidavit, a costs statement, and two supplemental affidavits for services rendered. The trial court found that the plaintiff prevailed on the conversion claim, and that he was entitled to attorney’s fees and costs pursuant to section 448.08, Florida Statutes (2004).

An evidentiary hearing was held to determine the amount of attorney’s fees and costs. At the hearing, Mr. Capua testified that he worked on the entire case for a total of 165 to 170 hours, but that only 143.6 of those hours were spent on the conversion claim, and that he had already excised from his timesheets those hours that were not related to the conversion claim. Mr. Capua also stated that he was seeking an hourly rate of $350, although he has charged anywhere from $200 to $350 per hour, depending on the type of case. Mr. Capua explained that, after summary judgment was entered on the breach of contract claim, he did not perform any independent work on the defamation claim, and that 99% of the case dealt with the conversion (unpaid wages) claim. The entries in Mr. Capua’s timesheet did not specifically allocate how much time was expended on each claim. Mr. Capua testified that the claims were “inextricably intertwined and therefore I’m not able to make an allocation.” When asked what he meant by “inextricably intertwined,” he stated, ‘What I mean is that when I did my discovery the discovery went to all issues.... ”

During Mr. Capua’s cross-examination, OCCA’s counsel referred to the depositions of several witnesses. He noted, for example, that, although Mr. Capua was seeking attorney’s fees for the entire amount of time expended at a deposition, only a fraction of the deposition dealt with the conversion claim.

Frank Allocca, Esquire, testified as an expert for the plaintiff. He testified that he expended 24.5 hours reviewing Mr. Ca-pua’s file and in testifying in the matter, and that his hourly rate is $350. He opined that a reasonable hourly rate for Mr. Capua’s services was $350, and that Mr. Capua expended 178 hours on the conversion claim and matters that were inextricably intertwined with that claim.

Leslie Langbien, Esquire, testified as an expert on behalf of OCCA. She testified that a reasonable hourly rate for Mr. Ca-pua was $250, and that Mr. Capua reasonably expended 28.85 hours on the conversion claim.

The trial court found that a reasonable hourly rate for Mr. Capua was $300; that 11.5 hours claimed by Mr. Capua were not directly related to the unpaid wages claim or were not inextricably intertwined with that claim; and that Mr. Capua necessarily spent 132.1 hours on the unpaid wages claim and 10.2 hours litigating the entitlement to attorney’s fees, for a total of $42,690. In addition, the trial court found that the plaintiffs expert, Mr. Allocca, necessarily spent 24.5 hours preparing for and testifying at the attorney’s fees hearing, and a reasonable hourly rate for him was $350, for a total of $8,575. Finally, the trial court awarded the plaintiff $1,258.05 in costs. These appeals followed.

OCCA contends that the trial court erred by finding that the plaintiff was entitled to an award of attorney’s fees and costs pursuant to section 448.08, Florida Statutes (2004). We disagree.

Pursuant to section 448.08, Florida Statutes (2004), the prevailing party in an unpaid wages claim is entitled to an award of attorney’s fees and costs. In the instant case, on the conversion/unpaid wages claim the plaintiff was awarded over $1,700 for income he had earned by giving tennis lessons at OCCA. As these amounts are considered wages pursuant to section 448.08, the trial court properly found that the plaintiff was entitled to an award of attorney’s fees and costs. See D.G.D., Inc. v. Berkowitz, 605 So.2d 496 (Fla. 3d DCA 1992) (holding that unpaid commissions were “wages” within the meaning of section 448.08); Gulf Solar, Inc. v. Westfall, 447 So.2d 363, 367 (Fla. 2d DCA 1984) (stating that the definition of “wages” in Black’s Law Dictionary 1416 (5th ed. 1979) should be used in construing the term “wages” as used in section 448.08; Black’s Law Dictionary provides, in part, that the term “wages” “should be broadly defined and includes not only periodic monetary earnings but all compensation for services rendered without regard to manner in which such compensation is computed”). Thus, we affirm the trial court’s order finding that the plaintiff was entitled to an award of attorney’s fees and costs pursuant to section 448.08, Florida Statutes (2004).

OCCA also contends that the trial court committed reversible error by awarding attorney’s fees for services rendered by the plaintiffs attorney that were not related to the conversion claim. We agree.

In the instant case, the plaintiff alleged multiple counts in his amended complaint — breach of employment contract, conversion, and defamation. A trial court’s “determination of whether multiple claims within a lawsuit are separate and distinct is a matter of law to be reviewed de novo.” Anglia Jacs & Co. v. Dubin, 830 So.2d 169, 171 (Fla. 4th DCA 2002). Mr. Capua explained that he was not able to make an allocation for each entry in his timesheet because the claims were “inextricably intertwined.” Contrary to Mr. Capua’s assertion, a review of the amended complaint indicates that each claim was separate and distinct, not inextricably intertwined, because each claim “could support an independent action and are not simply alternative theories of liability for the same wrong.” Avatar Dev. Corp. v. DePani Constr., Inc., 883 So.2d 344, 346 (Fla. 4th DCA 2004). The breach of contract claim dealt with the alleged breach of an employment contract, the defamation claim asserted that OCCA made allegedly false statements regarding the plaintiff, and the conversion claim asserted that OCCA withheld income that the plaintiff had earned by giving tennis lessons. As each count is separate and distinct and the plaintiff is only entitled to an award of attorney’s fees as to the conversion/unpaid wages claim, the plaintiff has “an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees.” Rockledge Mall Assocs., Ltd. v. Custom Fences of Brevard, Inc., 779 So.2d 558, 559 (Fla. 5th DCA 2001) (citing Plapinger v. E. States Props. Realty Corp., 716 So.2d 315 (Fla. 5th DCA 1998)); see also Salisbury v. Spielvogel, 451 So.2d 974, 975 (Fla. 4th DCA 1984) (“In seeking attorney’s fees for services in litigation where the prevailing party may be entitled to fees for services regarding some of the issues but not others, the burden of proving entitlement to fees is upon the party claiming them.”) (citing United Servs. Auto. Ass’n v. Kiibler, 364 So.2d 57 (Fla. 3d DCA 1978)).

A review of Mr. Capua’s timesheets, the record on appeal, and the order awarding over $42,000 in attorney’s fees to the plaintiff, indicates that the trial court abused its discretion because it awarded attorney’s fees for services rendered that were clearly not related to the conversion claim. For example, Mr. Capua claimed and was granted 4.75 hours of attorney’s fees for matters relating to the deposition of Caroline Grantz. A review of Ms. Grantz’s deposition reflects that her testimony addressed only the defamation count, not the conversion count. In addition to the attorney’s fees relating to Ms. Grantz’s deposition, the record also reflects that Mr. Capua sought and was awarded approximately twenty-six hours of attorney’s fees for matters relating to the depositions of the plaintiff and two other witnesses, Christopher Blackman and Jeffrey Miller. A review of these depositions, however, reflects that more than half of the time spent did not pertain to the conversion count. It was, .therefore, an abuse of discretion to award fees for the services unrelated to the conversion count.

These are only a few examples of fees awarded for work unrelated to the conversion claim. On remand, the trial court is instructed to go through each entry reflected in Mr. Capua’s timesheet and to determine if the entry or a portion of the entry was for services rendered for the unpaid wages/conversion claim. The trial court is to keep in mind that the plaintiff, as the party seeking attorney’s fees, bears “an affirmative burden to demonstrate what portion of the effort was expended on the claim which allowed attorney’s fees,” Rockledge Mall, 779 So.2d at 559, and if he cannot meet his burden for any reason, including inadequate timesheets or record keeping, he cannot be awarded attorney’s fees.

OCCA also contends that the trial court abused its discretion in awarding certain costs to the plaintiff. As we conclude that the award did not comport with the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (“Guidelines”), see Reeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1349 n. 2 (Fla. 4th DCA 1983) (quoting In re: Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, 7 Fla. L. Weekly 517 (Fla.1981)), and there were no facts to support such a departure, see Borja v. Nationsbank of Fla., N.A., 730 So.2d 799 (Fla. 3d DCA 1999); State, Dep’t of Transp. v. Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998) (holding that the trial court may “deviate from the Guidelines depending on the facts of the case as justice may require”), we agree.

A trial court’s award of costs is reviewed by appellate courts for an abuse of discretion. Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998). In the instant case, the plaintiff properly concedes that the trial court abused its discretion by awarding $93.54 for costs relating to computerized legal research, as these costs are not compensable. See Skidmore, 720 So.2d at 1130 (holding that “award of computer research costs was error, as such charges are overhead and not properly taxable as costs”).

OCCA also challenges the award of certain costs, which the plaintiff contends were appropriately awarded. For example, OCCA contends that the trial court abused its discretion by awarding costs for services rendered by Black’s Copy Service. The Guidelines provide that the cost of copies of documents that are filed in the court file or filed and received in evidence during trial should be taxed. In addition, the Guidelines provide that the “cost of copies obtained during course of discovery and not used at trial should not be taxed, but the presiding Judge should exercise his discretion on the taxability of the cost of such copies if the facts of the entire case warrant an award of the cost of such copies.” As there was no indication whether any of the copies were filed in the court file or used at trial, we conclude that the trial court abused its discretion by awarding costs for the services rendered by Black’s Copy Service. Upon remand, if the plaintiff can establish that any of these copies were filed in the court file or received into evidence, the costs associated with these copies are recoverable.

OCCA also asserts that the trial court abused its discretion by awarding costs for certain depositions. We agree.

A review of the record reflects that, while the trial court awarded costs for several depositions, only a portion of Mr. Curtis’ deposition was used during the summary judgment hearing and no deposition or portion of a deposition was introduced during the trial. Additionally, as previously discussed, the deposition of Ms. Grantz dealt solely with the defamation claim. As the Guidelines do not provide for the awarding of such costs, we conclude that the trial court abused its discretion in awarding costs for depositions not introduced at trial or other hearing and/or unrelated to the plaintiffs conversion claim. We reverse the portion of the order awarding $1,258.05 in costs and remand for further proceedings consistent with this opinion.

Finally, OCCA contends that the trial court abused its discretion by taxing as costs the expert witness fee of Mr. Allocca, the attorney who testified on behalf of the plaintiff at the attorney’s fee hearing. As we agree with OCCA that the expert witness fee awarded by the trial court was excessive, we reverse the portion of the order awarding $8,575 in expert witness fees, and remand for entry of a reasonable expert witness fee.

The trial court found that Mr. Allocca reasonably and necessarily expended 24.5 hours preparing for and testifying at the attorney’s fee hearing, awarding $8,575 in expert witness fees for Mr. Allocca. A review of the record indicates that, although it was clear that the plaintiff was entitled to attorney’s fees only as to services expended on the unpaid wages claim, Mr. Allocca made no effort to apportion the time expended by Mr. Capua between the three separate and distinct claims. In essence, Mr. Allocca spent three work days on this matter to come up with the ultimate conclusion that practically every hour that Mr. Capua worked on the case was expended on the unpaid wages claim. Moreover, it is interesting to note that Mr. Capua testified that he expended 143.6 hours on the unpaid wages claim, whereas, Mr. Allocca testified that Mr. Capua expended approximately 178 hours on the unpaid wages claim. Further, Mr. Alloc-ca’s billing statements contain examples of where excessive hours were claimed. One such example is where Mr. Allocca’s billing statements include an “estimated” three hours for his attendance at the attorney’s fee hearing, but his testimony lasted approximately one and one-half hours. Upon remand, the trial court is instructed to review Mr. Allocca’s billing statements to determine which hours were reasonably and necessarily expended in preparing for and testifying at the attorney’s fee hearing.

Accordingly, the orders under review are affirmed, in part, reversed, in part, and remanded for further proceedings consistent with this opinion.

      . Section 448.08, Florida Statutes (2004), provides: "The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fees.”


author: PER CURIAM.

text:
    GLOBAL NETWORK, INC., Appellant, v. 2901 PONCE GROUP, LLC., etc., Appellee.
    No. 3D05-2752.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 5, 2006.
    Duane Morris and Lida Rodriguez-Ta-seff, Miami, and Eric Saida, for appellant.
    Rasco Reininger Perez Esquenazi Vigil and Steven R. Reininger, Coral Gables, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360 (Fla. 3d DCA 1985).


text:
    Carl WALKER and Tamico Walker, Appellants, v. MIDLAND MORTGAGE CO., Appellee.
    No. 3D04-2436.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.
    Rehearing and Rehearing En Banc Denied Sept. 5, 2006.

      Philip D. Parrish, Miami; Stanley B. Prager; Bradley A. Silverman, Coral Gables, for appellants.
    Kass, Shuler, Solomon, Spector, Foyle & Singer, and Ronald H. Trybus, Tampa, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Carl Walker and Tamico Walker appeal the entry of a final judgment of foreclosure. We affirm because there is no evidence that the holder of the Walkers' mortgage and/or the mortgage servicing agents agreed to forbear the filing of the foreclosure action.

In 2000, Mr. Walker suffered a severe work-related injury that caused him to default on his mortgage held by Midfirst Bank and to file a personal injury suit to recover for his sustained injuries. The Walkers intended to pay off their mortgage arrearages with the proceeds from the suit and thus avoid foreclosure proceedings. They ultimately settled the suit, but the mortgagee filed for foreclosure on March 13, 2002, before the Walkers rendered any payment to pay off their mortgage loan. In the Walkers’ breach of contract claim against the mortgagee, the Walkers alleged that there was a valid and binding oral agreement in which the Walkers’ former servicing agent, Irwin, agreed to delay the filing of a foreclosure action. According to the mortgagee’s March 6, 2002 letter to the Walkers, the Walkers owed $84,615.01.

The record reflects a long series of oral and written communications between the Walkers’ counsel and Irwin. The most notable communication is between the Walkers’ counsel and Jackie Barson of Irwin, in which Barson agreed to delay the filing of the foreclosure action for a reasonable amount of time. Barson testified that she orally agreed with the Walkers’ counsel in December of 2001 that no lawsuit would be filed, and that any lawsuit would be delayed for a reasonable amount of time so that the Walkers could pay off their loan in full. She specifically discussed with the Walkers’ counsel that the foreclosure action would be delayed until May 1, 2002, but she did not agree not to file until that date, or any other date. She further testified that when the loan servicing was transferred to Midland, the file was still on hold for foreclosure pursuant to her agreement with the Walkers’ counsel. She also testified that her oral agreement with the Walkers’ counsel did not prevent Midland, the new servicing agent, from instituting foreclosure proceedings prior to May 1, 2002.

We do not find evidence of any agreement that prevented Midland from instituting its foreclosure action against the Walkers. On motion for summary judgment, only questions of material fact raised by the evidence may be considered. Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956). If the movant for summary judgment offers sufficient evidence to support its claim that there is no dispute of material facts, the opposing party must demonstrate, through competent evidence, the existence of disputed issues of material fact. Carbonell v. BellSouth Telecomms., Inc., 675 So.2d 705, 706 (Fla. 3d DCA 1996). If the opposing party fails to present such evidence, summary judgment may be entered in favor of the moving party. Id.

There is no issue of fact that the mortgagors failed to pay their mortgage when due and that the mortgagors defaulted on their obligation to pay. Likewise, we do not find that there is any disputed issue of fact as to the existence of an agreement that prevented Midland from instituting foreclosure proceedings when it did so. There is no evidence of any agreement between the Walkers and the mortgage servicing agents to forbear the filing of the foreclosure action prior to May 1, 2002. Barson, who had initially agreed to forbear the filing of a foreclosure action, testified that there was no agreement that prohibited Midland from filing its foreclosure complaint. Even after the mortgagors settled the personal injury suit prior to the institution of foreclosure proceedings, they failed to pay the loan off and rejected Midland’s offer to dismiss the foreclosure with prejudice to allow the Walkers to pay off the loan.

Furthermore, we do not find that there is a disputed issue of fact regarding the amount required to pay off the mortgage. Although the Walkers’ counsel disputed the amount owed and did not receive pay off information from the firm that instituted the foreclosure action until after the firm filed suit, this basis is insufficient to raise a disputed issue of fact as to the amount owed on the loan so as to preclude the entry of summary judgment. The Walkers indeed had received a breakdown of the loan balance from Midland approximately one week before Midland instituted the foreclosure action.

We find no merit to the remaining arguments the Walkers raised in this appeal, and therefore find that the trial court correctly entered judgment in the mortgagee’s favor on the Walkers’ counterclaims and on the mortgagee’s foreclosure action.

Affirmed.

      . HUD, the federal agency which insured the Walkers’ mortgage loan, had approved an extension until May 1, 2002, within which the mortgage servicing agent had to initiate foreclosure proceedings.