author: THOMPSON, Judge.

text:
    POINT CLEAR LANDING ASSOCIATION, INC. v. Jessie KAYLOR.
    2050608.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      Douglas L. McCoy of Hand Arendall, L.L.C., Mobile, for appellant.
    William Daniel Calhoun of Duck, Calhoun & Stone, Fairhope, for appellee.
   THOMPSON, Judge.

This action has a long procedural history, a portion of which was set forth by this court as a part of a previous appeal. See Point Clear Landing Ass’n, Inc. v. Point Clear Landing, Inc., 864 So.2d 369 (Ala.Civ.App.2003). In Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, this court set forth the procedural history of this action as follows:

“On June 13, 1995, Point Clear Landing, Inc. (‘PCL’), filed an appeal in the Baldwin Circuit Court seeking a review of the decision of the Baldwin County Board of Adjustment denying PCL’s request for a variance to construct single-family housing on its property. PCL also named Baldwin County as a party in its appeal (those two parties are hereinafter referred to collectively as ‘the Board’). In the materials filed in the trial court, PCL alleged that it owned certain real property (‘the subject property’) located adjacent to Point Clear Landing Condominiums. PCL explained that it had originally intended to construct condominiums on the subject property but it had later elected to attempt to construct single-family dwellings on the property. PCL acknowledged in its filing that the construction of single-family dwellings on the subject property would conflict with the existing zoning ordinances.
“On September 13, 1995, Point Clear Landing Association, Inc. (‘the Association’), filed a motion to intervene in the circuit court. In that motion, the Association argued in favor of the Board’s decision, citing, among other things, the language in the deed to the subject property that restricted the development of the property to its use for condominiums similar to the Point Clear Landing Condominiums. The Association also asserted that it had adversely possessed the property since July 1983, and it sought a judgment declaring, among other things, that PCL did not have a right to develop the subject property.
“... PCL and the Board later reached an agreement as to PCL’s claims regarding the variance, and the trial court dismissed the Board [from] the action.
“PCL and the Association each amended its filings to assert claims against the other. In summary, PCL sought to enjoin the Association from renting boat slips on the subject property; sought damages in the amount of any rental fees from those boat slips; and sought damages on a claim alleging conversion. The Association sought the reformation of the description contained in the deed to the subject property.
“On June 28, 2002, PCL [asserted in a separate action] claims against the Association, stating that the Association had purchased the subject property at a tax sale in December 1998, and asserting its intention to redeem the subject property pursuant to § 40-10-82, Ala.Code 1975. The Association answered, contending that PCL did not have statutory authority to redeem the subject property, but in the event the trial court ruled adversely on that issue, the Association was entitled, pursuant to § 40-10-83, Ala.Code 1975, to an award of the redemption price plus a reasonable attorney fee. []
“On October 8, 2002, the trial court entered an order granting PCL the right to redeem the subject property and awarding the Association certain amounts as the redemption price for the property. The trial court certified its October 8, 2002, order as final, pursuant to Rule 54(b), Ala. R. Civ. P.”

864 So.2d at 369-70.

In Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, the Association appealed the October 8, 2002, order granting PCL the right to redeem the subject property. This court, ex mero motu, concluded that the October 8, 2002, order was not appropriate for a certification of finality pursuant to Rule 54(b), Ala. R. Civ. P. 864 So.2d at 371. Therefore, this court dismissed the appeal on the basis that it had been taken from a nonfinal judgment. Id.

The record indicates that following this court’s decision in Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, PCL did redeem the subject property and that no further challenge to that redemption has been asserted. In October 2002, the Association moved for a partial summary judgment pertaining to its alleged adverse possession of certain boat slips apparently located on the subject property; it does not appear that the trial court ruled on that motion. The trial court conducted a trial on the merits on October 27, 2003. However, no further action was taken in the case for more than a year.

On March 22, 2005, the trial court sent a notice via e-mail to the parties’ attorneys advising them of its intended resolution of the pending issues. In that e-mail notice, the trial court requested that the attorneys for the Association and for PCL submit for its consideration proposed judgments setting forth the terms of the ruling as discussed in the e-mail notice.

On September 15, 2005, Alabama Development and Construction Consultants (“ADCC”) filed a motion asserting that it had purchased PCL’s interest in the subject property and asking to be substituted as a party in the action. On September 22, 2005, the trial court granted that motion and ordered that ADCC be substituted as the “plaintiff/counterclaim defendant” in this action.

On January 23, 2006, the trial court entered a final judgment in this matter. In that judgment the trial court, among other things, declared that the bulkhead and boardwalks situated on the boundary of the subject property belong to the Association. The trial court awarded ADCC an easement along that part of the bulkhead and boardwalk that are immediately adjacent to the subject property “together with such riparian rights pursuant to § 33-7-50, Ala.Code 1975.” The trial court also denied the claims seeking reformation of certain restrictive covenants pertaining to the subject property and property owned by the Association.

The Association filed a postjudgment motion in which it, among other things, objected to the trial court’s reference in its judgment to any riparian rights ADCC might have with regard to the subject property. After the trial court denied the Association’s postjudgment motion, the Association timely appealed.

During the pendency of the appeal in this court, Jessie Kaylor filed a motion asserting that he had purchased the subject property from ADCC and requesting that he be substituted as the appellee in this appeal. This court granted that motion, and, accordingly, we will hereinafter refer to the appellee as “Kaylor.”

The Association first argues that the trial court erred in referring in its January 23, 2006, judgment to any riparian rights Kaylor might have with regard to the subject property. “Riparian rights, which entitle the owner to construct waterfront improvements, belong to the owner of the fee in the riparian lands abutting the water.” City of Orange Beach v. Benjamin, 821 So.2d 193, 195 (Ala.2001). Our supreme court has explained:

“The rights of riparian owners are stated in §§ 33-7-50 through 33-7-54, Ala.Code 1975. Section 33-7-50 states:
“ ‘The owner of riparian lands upon navigable waters in the State of Alabama may install in front of their respective riparian lands wharves, docks, warehouses, sheds, tipples, chutes, elevators, conveyors and the like for receiving, discharging, storing, protecting, transferring, loading and unloading freight and commodities of commerce to and from vessels and carriers, and may use their riparian lands in connection therewith and dredge out and deepen the approaches thereto, and may charge and collect reasonable tolls for the use thereof. All such structures are to be subject to such lines and limitations as may at the time of making such improvements be laid or placed by any authority of the United States, or of the State of Alabama, who may have authority to control harbor and pier lines.’
“This section governs building rights not only on riparian lands and the overlying waters but also on the lands and overlying waters, including navigable waters, in front of riparian lands.”

Ex parte Cove Props., Inc., 796 So.2d 331, 333 (Ala.2000) (emphasis omitted).

The Association argues that neither of Kaylor’s predecessors in interest ever asserted a claim to riparian rights until ADCC submitted its proposed judgment to the trial court. The Association also contends that the issue of the existence of any riparian rights was not litigated during the trial on the merits. “Where an issue is not raised in a pleading but it is tried by the express or implied consent of the parties, the pleadings may be treated as amended so as to conform to the evidence. Rule 15(b), Ala. R. Civ. P.” J.A.P. v. L.W.A., 910 So.2d 115, 118 (Ala.Civ.App.2004). However,

“[wjhen a party contends that an issue was tried by express or implied consent and the evidence on that issue is also relevant to the issue expressly litigated, there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b). Wright & Miller, Federal Practice & Procedure, Civil, § 1493 (1971).”

McCollum v. Reeves, 521 So.2d 13, 17 (Ala.1987).

This court’s review of the pleadings and motions filed in this action indicates that at no time did any party make any reference to or assert a claim asking for a declaration of its riparian rights with regard to the subject property (or to other property for which ownership was not an issue).

Kaylor responds to the Association’s argument that the issue of riparian rights was not raised or tried before the trial court by asserting, among other things, that the issue of the navigability of the waters that the subject property borders was tried before the trial court. Thus, Kaylor apparently contends, based on the mention of the term “navigable waters” in § 33-7-50, Ala.Code 1975, that the issue of navigability of the waters bordering the subject property was sufficient to place the Association on notice of the claim asserted by his predecessor in interest regarding riparian rights. Kaylor points out that while questioning a fact witness during the trial, the Association’s attorney asked one question regarding whether the water bordering the subject property was a navigable waterway. Kaylor also points to language in deeds to the subject property that mention “riparian rights” or the phrase “navigable waters”; significantly, Kaylor’s predecessors in interest did not reference that language during any part of the proceedings below. Kaylor also cites the evidence pertaining to the Association’s rental of certain boat slips as evidence of the navigability of the waters bordering the subject property; Kaylor asserts that that evidence constitutes an admission or concession by the Association that the water bordering the subject property is a navigable waterway.

Assuming any of the aforementioned arguments to be correct, however, our review of the trial transcript reveals that there was no mention of riparian rights during the trial on the merits by Kaylor’s predecessor in interest. The testimony and evidence to which Kaylor refers pertaining to the issue of the navigability of the waters bordering the subject property was relevant to the issues being expressly tried before the trial court. Given the relevance of that evidence to issues being expressly tried before the trial court, we cannot agree that the new or separate issue of riparian rights was raised or tried before the trial court. See McCollum v. Reeves, 521 So.2d at 17. Therefore, we must reverse those parts of the trial court’s January 23, 2006, judgment that refer to riparian rights with regard to the subject property.

The Association also contends on appeal that the trial court erred “as a matter of law” in failing to award it legal title to two areas of the subject property located near one of the condominium buildings (“Building C”). One of the areas of the subject property at issue, is located between Building C and the docks or boardwalks in front of that building, and the other area is located between Building C and the docks or boardwalks on one side of that building. The Association contends that the award of those areas of property is necessary for its members to have convenient access to the docks and boat slips assigned to one of the condominium buildings in the Association. In support of its argument that the trial court should have awarded it title to those two areas of the subject property, the Association cites certain testimony and documentary evidence submitted at the trial and maintains that the trial court should have awarded it that property either pursuant to the interpretation or construction of certain documents pertaining to the condominiums or pursuant to the theory of adverse possession. The trial court made no factual findings with regard to the Association’s claim seeking title to those areas of property.

Kaylor has filed in this court a “motion to strike” that part of the Association’s brief pertaining to the two areas of the subject property. Kaylor contends that the Association failed to properly preserve that argument for this court’s consideration. In support of his argument, Kaylor cites New Properties, L.L.C. v. Stewart, 905 So.2d 797 (Ala.2004). In that case, our supreme court held that “in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.” 905 So.2d at 801-02. Kaylor argues that the Association’s argument pertaining to the failure of the trial court to award it title to the two areas of property amounts to a challenge of the sufficiency of the evidence considered by the trial court. However, as Kaylor points out, the Association did not assert a challenge with regard to the ownership of the two areas of property before the trial court in a postjudgment motion.

In response to Kaylor’s argument, the Association contends that it was not required to file a pdstjudgment motion in the trial court in order to preserve its argument on this issue. The Association maintains that its argument is not based on the sufficiency of the evidence supporting the trial court’s judgment, but rather upon its contention that the trial court erred as a matter of law based upon undisputed facts. We find that argument to be unpersuasive, given the facts of this case and the arguments asserted in the Association’s brief on appeal.

The document conveying and dedicating Building C to the Association limits the property conveyed to the “footprint” of Building C, or the land which lies directly under the building. In asking this court to hold that the deed conveying Building C to the Association “should” have conveyed the additional areas of property at issue, the Association speculates that the intent of PCL in drafting that document was to convey those additional areas adjacent to Building C. In addition, the Association argued that the evidence was undisputed that it had adversely possessed those areas of the subject property. The Association directs this court only to the testimony of Gerald Drennan, the president of PCL, who testified that it was the intent of PCL that “the dock and the slips and this gazebo surrounding Building C” be dedicated to the Association as part of the common areas available to the Association. However, Howard Donovan, the attorney hired to assist with drafting the legal documents for developing the condominium project, explained that only the footprint of Building C was conveyed in order for PCL to maintain flexibility with regard to the development of the condominium project. Donovan also answered in the affirmative a question from the trial court about whether PCL was required to exercise a certain option in order for the common elements such as the areas of property at issue to be merged into the Association; that option was not exercised and it expired.

The foregoing evidence demonstrates that in order to resolve the Association’s argument that the trial court erred in failing to award it the two areas of the subject property at issue, this court would have to examine the sufficiency of the evidence presented to the trial court. However, as pointed out by Kaylor, in order to preserve its arguments before this court, the Association was required to have raised a challenge as to the sufficiency of the evidence pertaining to those claims before the trial court. New Props., L.L.C. v. Stewart, supra. The Association did not do so. Accordingly, we cannot say that the Association preserved for appellate review its arguments that it should have been awarded the additional areas of the subject property. Pursuant to the precedent of New Properties, L.L.C. v. Stewart, supra, we affirm the trial court’s judgment as to this issue; we deny Kaylor’s motion to strike that portion of the Association’s brief pertaining to this issue. See New Props., L.L.C. v. Stewart, 905 So.2d at 802 (affirming the judgment when the appellant failed to properly preserve the issue for appellate review).

APPELLEE’S MOTION TO STRIKE IS DENIED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . On June 26, 2006, the trial court ordered that the redemption action be consolidated with the original action initiated by PCL.

      . That question reads as follows:
      "Q. [ASSOCIATION ATTORNEY]: And you know as a real estate expert dealing from time to time with waterfront development that a boat could come in here and meander on through here, fish, and, you know, stop and swim, that all of this is navigable waterway, isn’t it?
      "A. Right.”

      . We note that in addition to the evidence described in the body of this opinion, Kaylor cites certain testimony from a deposition of a witness who later testified at trial. That deposition was submitted by the Board in support of its motion for a summary judgment on PCL's challenge to the Board's denial of its request for a variance. Clearly, the issue of the navigability or, arguably, any riparian rights that Kaylor's predecessors in interest might have in the subject property were not at issue between those parties or in that filing. We conclude that that testimony is not sufficient to support a claim for riparian rights.


source: Caselaw Access Project

author: CRAWLEY, Presiding Judge. MURDOCK, Judge, BRYAN, Judge,

license: Public Domain

text:
    CITY OF DOTHAN v. Mary Beth BRACKIN.
    2050558.
    Court of Civil Appeals of Alabama.
    Dec. 8, 2006.

      F. Lenton White, city atty., Dothan, for appellant.
    Ishmael Jaffree, Mobile, for appellee.
   CRAWLEY, Presiding Judge.

Mary Beth Brackin, a magistrate for the Dothan Municipal Court, was dismissed from her employment with the City of Dothan after having been found guilty of two major offenses under the City’s Personnel Department Rules and Regulations (“the Personnel Rules”), namely: insubordination and negligence in carrying out assigned tasks, within 24 months of a previous major offense. Brackin appealed her dismissal to the City’s Personnel Board, which affirmed the dismissal. Brackin then appealed the Personnel Board’s affir-mance of the dismissal to the Houston Circuit Court. The circuit court reversed the decision of the Personnel Board, and the City appealed to this court.

Standard of Review

“The trial court’s review of the Board’s decision is limited to ‘the record made before the Board and to questions of law presented, and that court must affirm the judgment of the Board if there is substantial evidence to support its findings.’ City of Mobile v. Seals, 471 So.2d 431, 433 (Ala.Civ.App.1985). If there is substantial evidence to support the Board’s determination, the trial court must affirm the Board’s decision and may not substitute its judgment for that of the Board. Id. The trial court is not permitted to judge the wisdom of the decision of the Board. Creagh v. City of Mobile Police Dep’t, 543 So.2d 698 (Ala.Civ.App.1989).”

City of Mobile v. Robertson, 897 So.2d 1156, 1159 (Ala.Civ.App.2004). Substantial evidence is “relevant evidence ... that might be accepted by reasonable minds as adequate to support a conclusion.” City of Mobile v. Trott, 596 So.2d 921, 922 (Ala.Civ.App.1991). In the administrative-!aw context, substantial evidence exists if there is “ ‘a rational basis for the conclusions approved by the administrative body.’” City of Mobile v. Seals, 471 So.2d 431, 434 (Ala.Civ.App.l985)(quoting Ex parte Morris, 263 Ala. 664, 668, 83 So.2d 717, 720 (1955)). Thus, if the Personnel Board properly applied the law and there was substantial evidence to support its decision, the circuit court was bound to affirm its decision. City of Dothan Personnel Board v. Herring, 612 So.2d 1231, 1232-33 (Ala.Civ.App.1992). “ ‘This court is likewise governed by the same standard as the [trial] court; if we conclude that substantial evidence existed to support the Board’s decision, we must uphold it.’ ” City of Mobile v. Robertson, 897 So.2d at 1159 (quoting Creagh v. City of Mobile Police Dep’t, 543 So.2d 698, 699 (Ala.Civ.App.1989)).

Factual Background

Brackin worked as a magistrate for the City from May 1992 until May 2005. During the time at issue in this case, Brackin’s supervisor was Municipal Judge Rose Evans-Gordon. One of Brackin’s job duties was to process uniform traffic tickets and complaints (“UTTCs”) filed in the municipal court. Brackin administered oaths to police officers, received tickets filed by the police officers, and accounted for those tickets on UTTC transmittal forms.

On April 22, 2004, Brackin received a 10-day suspension and 2 years’ probation for violating § 3-42(6) of the Personnel Rules — action(s) or lack of actions(s) that could cause undue financial loss to the City — and § 3-42(14) of the Personnel Rules — insubordination—both of which are designated as major offenses. Brackin testified that both charges were based on the fact that she had informed a citizen who believed that he had been falsely arrested that he could file a complaint in the City clerk’s office. On cross-examination, Brackin was asked whether she had informed the citizen that the warrant for his arrest had been wrongly issued and that his arrest was, therefore,, illegal. Brackin denied giving the citizen that information. Brackin did not appeal her suspension to the Personnel Board.

Sometime in early 2005, another city magistrate, Mary Turner, was placed on administrative leave pending a police department investigation of allegations that Turner had “fixed” a traffic ticket issued by Cpl. Eric Duhaime of the Dothan police department to Stephen Phelps on November 24, 2002. After Turner was placed on leave, Judge Evans-Gordon instructed all the other magistrates to cooperate fully with the investigation and “to strictly refrain from any contact with Ms. Turner.” Brackin inquired whether the prohibition extended to after-hours contact with Turner because, she said, she and Turner attended the same church. The judge replied that the prohibition extended to any contact with Turner.

On April 29, 2005, Brackin was charged with two major offenses. The first was insubordination, based upon the allegation that Brackin had willfully disobeyed the judge’s instruction to refrain from contact with Turner. Brackin acknowledged that she had contacted Turner. Brackin testified that, after Turner was placed on leave, she was assigned to take over Turner’s job duties. Brackin explained that she had been unable to complete one of those duties without having access to a form for a letter that she was required to send to youthful offenders who had failed to - appear in court. Brackin testified that she thought the form letter was on Turner’s computer desktop, but, she said, all employees had been forbidden to go into Turner’s office or to use Turner’s computer, so Brackin telephoned Turner to inquire where she could find the form letter. On cross-examination, Brackin conceded that, after the judge’s order, there were other occasions when she had conversations with Turner, but, she said, she did not recall the content of those conversations.

The second major offense with which Brackin was charged on April 29, 2005, was violating § 3-42(6) of the Personnel Rules — negligence in carrying out assigned duties by failing to account for a traffic ticket issued by a Dothan police officer. That charge arose out of the same nucleus of operative facts for which Turner had been placed on leave.

The evidence was undisputed that, on November 24, 2002, Cpl. Eric Duhaime issued a speeding ticket to Stephen Phelps. Cpl. Duhaime testified that, on December 4, 2002, he turned in that ticket and others he had recently issued, along with a UTTC transmittal form, to Brackin. Cpl. Du-haime acknowledged the tickets under oath before Brackin and left the magistrates’ office. Later, Cpl. Duhaime said, Turner contacted him, told him that she knew Stephen Phelps, and asked if Cpl. Duhaime would be willing to “void [the ticket] out.” Duhaime agreed to void the ticket and asked Turner to return the copies of the ticket to him. Turner mailed all copies of the ticket to Cpl. Duhaime.

The record contains a UTTC transmittal form, dated December 4, 2002, and signed by Brackin. On the form, the space provided for the “court case number” with respect to the Phelps ticket is lined through and replaced with the word “VOID.” Upon being shown the form, Brackin acknowledged that she had lined through the space for the court case number and had written the word “VOID,” but, she said, she had no specific recollection of the Phelps ticket or why she wrote the word “VOID” on the form. In answer to a question by her attorney, she acknowledged that “[i]f the officer said that he gave the okay for the ticket to be retrieved, that [could have been] the basis for triggering [the] void.” Brackin testified that, because the Phelps ticket was not with the UTTC transmittal form and the other tickets listed on the form, the Phelps ticket was “not in the system.” She also stated that she was “not part of the process [that brought] the ticket out of the system.” Brackin testified that she did not void the Phelps ticket; by writing the word “VOID” on the UTTC transmittal form, she merely reflected the reality that the ticket had already been voided.

Cpl. Duhaime testified that a police officer has unlimited discretion as to whether to issue a ticket to a motorist. He stated that sometimes, after an officer has issued a ticket, there is a valid reason to void the ticket. For example, Cpl. Duhaime said that if an officer writes a ticket for failure to have proof of insurance and, before the officer leaves the scene, the motorist finds his insurance card, the officer will void the ticket and write on the ticket the reason for voiding it. Cpl. Duhaime explained, however, that an officer has to account for all tickets, even those that have been voided. Cpl. Duhaime said that an officer is required to turn in all tickets to the magistrates’ office and to provide a copy of a voided ticket to a superior officer.

Judge Evans-Gordon testified that once a police officer has “sworn to” a ticket before a magistrate, the ticket becomes a “complaint” and neither the officer nor the magistrate can void the ticket. The ticket can be disposed of only by the court. The judge stated that, although the Dothan Municipal Court had no internal manual or memoranda that specifically addressed the instant situation, the magistrate’s handbook “tells ... how a UTTC is supposed to be handled.” The record does not contain a copy of the magistrate’s handbook. Cpl. Duhaime testified that, at the time he agreed to void the Phelps ticket, he was unaware that he did not have the discretion to void a ticket that had been “sworn to” before a magistrate. He stated that for his participation in voiding the Phelps ticket he was charged with a major offense and placed on two years’ probation.

The Charge of Failing to Account for a Traffic Ticket

With respect to the charge that Brackin violated § 3-42(6) of the Personnel Rules by failing to account for a traffic ticket issued by a Dothan police officer, the circuit court’s judgment reversing the Personnel Board’s decision to uphold Brac-kin’s dismissal states:

“Evidence concerning the authority of a police officer to void traffic citations after they are issued seemed open to various interpretations at the time of and prior to Mary Beth Brackin’s termination. Most witnesses seemed to agree that the issuing officer could void a citation for any reason prior to filing with the Magistrate’s Office. Officer Du-haime apparently felt that he had this authority,' as did Mrs. Brackin, at any time prior to its being assigned a city court case number and being transmitted to that Court. The City of Dothan, on the other hand, insists that once a citation is filed with the Magistrate’s Office that it can only be disposed of by action of the City Judge.
“In the Court’s opinion, the City’s position is the more logical and sound policy for handling traffic citations. What is clear, however, is that no set policy was in place for Magistrates to follow in situations such as that presented to Mary Beth Brackin. What was she supposed to do when she began assigning case numbers for citations [listed on the UTTC transmittal form filed by Cpl. Duhaime] and discovered that Corporal Duhaime and Mary Turner had voided the citation to Stephen Phelps? Should she have insisted that Duhaime return the citation? Did she have that authority? Was it her responsibility to investigate what had happened and then ‘blow the whistle’ on Mary Turner and Corporal Duhaime?
“Perhaps, in hindsight, a policy should be adopted whereby every citation voided after it is filed with the City Magistrate’s Office should be flagged so that it can be investigated by the City Judge. Mary Beth Brackin didn’t try to conceal anything. She had not voided the citation, nor had she sought permission to void it, nor did she know, why it was voided. She simply marked the record to reflect the truth of the matter as she understood it, and for this she was charged with negligence. If she was negligent, there were others higher in the chain of custody of the Transmittal Sheet who were likewise negligent in not questioning why the citation was voided. The Transmittal Sheet is an official record and was on file with the City Court for almost eighteen (18) months prior to these charges being made.
“In the opinion of the Court, there was not substantial evidence of negligence on [Brackin’s] part. Had a firm policy been established and made known to all. Magistratés beforehand, then a departure from it could be deemed negligence. That didn’t happen here.”

In Lawrence v. State, 601 So.2d 194, 195 (Ala.Crim.App.1992)(quoting Brown v. State, 565 So.2d 585, 599 n. 16 (Ala.1990) (Maddox, J., dissenting)), the Court of Criminal Appeals explained the procedure established by statute and by rule for the issuance and handling of UTTCs:

“ ‘To prevent the improper issuance of traffic tickets, and to prevent a law enforcement officer or other person from tearing up a ticket, there are strict accountability requirements in the statutes and in Rule 19[, Ala. R. Jud. Admin.,] for each and every Uniform Traffic Ticket and Complaint “issued to law enforcement officers.” See § 12 — 12—54[, Ala. Code 1975,] and Rule 19(a)(5) [now Rule 19(A)(5)(a), Ala. R. Jud. Admin.].’ ”

Section 12-12-54, Ala.Code 1975, provides, in pertinent part:

“The judge or judges and the clerk of the district court shall designate personnel to be responsible for accounting for all uniform traffic tickets and complaints issued to law enforcement officers or others in their jurisdiction and for the proper disposition of the forms and shall cause to be prepared records and reports relating to the uniform traffic tickets and complaints in the manner and at the time as may be prescribed by rule of the Supreme Court.”

Section 12-12-56, Ala.Code 1975, provides:

“(a) No law enforcement officer or other officer or public employee shall dispose of a uniform traffic ticket and complaint or any portion thereof or the record of issuance thereof in a manner other than as required under rules or regulations promulgated pursuant to this subsection.
“(b) Any person who solicits or aids in the disposition or attempted disposition of a uniform traffic ticket and complaint or any portion thereof in any unauthorized manner is subject to the criminal contempt power of the district or municipal court.”

Rule 19(A)(5), Ala. R. Jud. Admin., entitled “Accountability for Tickets,” states:

“(a) Law Enforcement Agencies. Each law enforcement agency shall be responsible for the proper accounting and use of all tickets stocked by that agency. Each law enforcement officer issuing a ticket shall complete and sign the ticket, serve a copy of the completed ticket upon the defendant and, without unnecessary delay, normally within 48 hours, acknowledge under oath the facts alleged therein before any person within the judicial branch of government who is authorized by the State of Alabama to administer oaths and file the court copies of the ticket with the court having jurisdiction over the alleged offense.
“(b) Courts. The presiding circuit judge, other judge, or clerk of each court shall designate personnel to be responsible for accounting for all tickets used in such court. The designated personnel shall be responsible for the proper disposition and accounting of such tickets and shall cause to be prepared and submitted such records and reports relating to the tickets as may be requested by the [Administrative Director of Courts].”

Rule 43, Ala. R. Jud. Admin., entitled “Minimum Accounting Requirements for Municipal Courts,” provides, in pertinent part:

“(A) Internal Controls Over Records and Cash. The magistrate or the municipal judge should design a system of internal control over all court records. Those controls should address [UTTC] numbers and procedures for accounting for all UTTC numbers. They should also address assignment of case numbers and accounting for all cases and their disposition. The procedures should set out responsibilities of court personnel and segregate duties to the extent possible with the number of employees assigned. The procedures for the internal-control system should be set out in writing.
“(B) Uniform Traffic Ticket and Complaint Forms....
“When an officer transmits to the court UTTC forms that have been issued, he or she should list each ticket in numerical sequence on a UTC Transmittal Form (Form UTC-3, attached to this rule as Appendix C), arrange the tickets ... in the order that they appear on the Form UTC-3 and submit both copies of this form to the court clerk.
“The court clerk should assign a case number to each citation issued on the Form UTC-3, write the ease number in the appropriate space on the form, and return the copy to the officer for his or her records.
“NOTE: The UTTC Transmittal Forms should then be placed in a permanent record book (a three-ring binder is ideal for this purpose if the holes are punched in the transmittal). The forms should be filed in case number sequence. The permanent record of UTTC forms received, issued to officers, and received after issuance by the officers, and the permanent record book of UTTC Transmittal Forms should be kept in a secure place.”

The circuit court’s judgment states that “[ejvidence concerning the authority of a police officer to void traffic citations after they are issued seemed open to various interpretations at the time of and prior to Mary Beth Braekin’s termination.” Although that statement may be true, it is irrelevant to the issue presented. A police officer’s authority to void a ticket after it has been “sworn to” is not the issue in this case. The issue is what a police officer (and, subsequently what a magistrate like Brackin) must do with all tickets, whether they have been “voided” or not. The facts and the law pertaining to that issue are clear. Cpl. Duhaime testified that a police officer has to account for all tickets, even those that have been voided. Cpl. Du-haime said that an officer is required to turn in all tickets to the magistrates’ office and to provide a copy of a voided ticket to a superior officer. The “Instruction to Officers” section of the UTTC itself states that “[a]ll copies of a voided ticket must be returned to the local issuing office.” By asking Turner to mail the copies of the Phelps ticket to him, Cpl. Duhaime violated § 12-12-56(a), Ala.Code 1975, which provides:

“(a) No law enforcement officer or other officer or public employee shall dispose of a uniform traffic ticket and complaint or any portion thereof or the record of issuance thereof in a manner other than as required under rules or regulations promulgated pursuant to this subsection.”

The evidence was undisputed that, on December 4, 2002, Brackin placed Cpl. Du-haime under oath, Cpl. Duhaime acknowledged the facts underlying the issuance of the Phelps traffic ticket, and Cpl. Duhaime turned in that ticket, along with a UTTC transmittal form listing that ticket, to Brackin. Pursuant to § 12-12-54, Ala. Code 1975, Brackin was thereafter “responsible for accounting for [the Phelps ticket] ... and for the proper disposition of the [transmittal form].” Pursuant to Rule 43(B), Ala. R. Jud. Admin., Brackin was required to “assign a case number to [the Phelps] citation ... on the [Transmittal] Form ..., write the case number in the appropriate space on the form, and return the copy to [Cpl. Duhaime] for his ... records.” She did none of those things. The circuit court asked the following questions:

“What was [Brackin] supposed to do when she began assigning case numbers for citations [listed on the UTTC transmittal form filed by Cpl. Duhaime] and discovered that Corporal Duhaime and Mary Turner had voided the citation to Stephen Phelps? Should [Brackin] have insisted that Duhaime return the citation? Did she have that authority? Was it her responsibility to investigate what had happened and then ‘blow the whistle’ on Mary Turner and Corporal Duhaime?”

The circuit court’s first question is based upon an assumption not supported by the evidence. The record contains no evidence indicating that Brackin “discovered that Corporal Duhaime and Mary Turner had voided the citation to Stephen Phelps.” The evidence indicated only that Brackin discovered that the Phelps citation, which Cpl. Duhaime had listed on the UTTC transmittal form, was missing. Thus, if the circuit court’s first question is rephrased to inquire, “What was Brackin supposed to do when she began assigning case numbers for the citations listed on the UTTC transmittal form filed by Cpl. Du-haime and discovered that the Phelps citation was missing,” the answer is: When Brackin began assigning case numbers for all the traffic citations on the UTTC transmittal form filed by Cpl. Duhaime and she noticed that the Phelps citation was missing, she should have, pursuant to § 12-12-54 and Rule 43(B), Ala. R. Jud. Admin., assigned a case number for the Phelps citation and allowed the matter to proceed to municipal court where, no doubt, the municipal judge could have sorted out questions of authority, blame, whistle-blowing and investigation. As the facts of this case and the applicable law demonstrate, the circuit court erred by concluding that the law pertaining to the disposition of voided traffic tickets is ambiguous. The court also erred in determining that the Dothan Municipal Court had no “firm policy [regarding the disposition of UTTCs] ... made known to all [municipal court] magistrates,” and, thus, that there was not substantial evidence of Brackin’s negligence. On the contrary, a firm policy is set out in the applicable statutes and court rules regarding the handling and disposition of UTTCs.

We hold that the Personnel Board had before it substantial evidence indicating that Brackin was negligent in failing to account for a traffic ticket issued by a Dothan police officer. The circuit court erred in concluding otherwise.

The Charge of Insubordination

With respect to the charge that Brackin violated § 3-42(14) of the Personnel Rules by being insubordinate to her supervisor, the circuit court’s judgment reversing the Personnel Board’s decision to uphold Brackin’s dismissal states:

“As to the charge of insubordination, [Brackin] did not violate the spirit of the City Judge’s Order; that is, she didn’t contact Mary Turner in an effort to compromise the City’s investigation of Ms. Turner in any way. To say that what [Brackin] did was insubordinate stretches the meaning and intent of that term considerably.”

In Maddox v. Clark, 422 So.2d 791, 794 (Ala.Civ.App.1982), this court stated:

“ ‘ “Insubordination” has been defined by our Courts as the wilful refusal of an employee to obey an order of a superior officer so long as that order is reasonably related to the duties of the employee. Heath v. Alabama State Tenure Commission, 401 So.2d 68 (Ala.Civ.App.1981); Howell v. Alabama State Tenure Commission, 402 So.2d 1041 (Ala.Civ.App.1981).’ ”

(Quoting the trial court’s judgment). See also Fuqua v. City Council of Ozark, 567 So.2d 354, 357 (Ala.Civ.App.1990) (quoting Heath v. Alabama State Tenure Comm’n, 401 So.2d 68, 70 (Ala.Civ.App.1981)) (stating that “[ijnsubordination has been defined ‘as the refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed so long as such order is reasonably related to the duties of the employee’ ”).

In City of Mobile v. Mills, 500 So.2d 20, 22 (Ala.Civ.App.1986), Cpl. Milton Mills of the Mobile police department was dismissed from his employment. He was charged, among other things, with insubordination arising out of his disobedience of a rule restricting him from entering the female housing areas of the city jail alone. When the jail warden confronted Cpl. Mills regarding his violation of the rule, Cpl. Mills responded “that he [Mills] did not have to listen to anyone; that he set his own rules.” 500 So.2d at 22. This court determined that the Mobile Personnel Board had before it substantial evidence supporting Cpl. Mills’s dismissal.

We conclude that the circuit court erred when it decided that Brackin did not violate the spirit of the municipal judge’s order not to contact Turner. Although Brackin presented evidence indicating that one of her contacts with Turner was prompted by a job-related necessity, she conceded that she had not sought Judge Evans-Gordon’s permission before making the job-related telephone call. From that evidence, the Personnel Board could have concluded that Brackin was, in effect, “settling] [her] own rules.” City of Mobile v. Mills, 500 So.2d at 22. Moreover, Brac-kin also acknowledged that she had other conversations with Turner after the judge issued the no-contact order, but, she said, she did not recall the content of those conversations. In light of the fact that Brackin had specifically inquired whether the judge’s order applied to after-hours contact with Turner and the judge had replied that the order applied to “all contact,” the Personnel Board was authorized to conclude that Brackin willfully disregarded the judge’s directive.

Brackin cites Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984), and Milligan v. Albertville City Board of Education, 628 So.2d 625 (Ala.Civ.App.1993), in support of the argument she made to the Personnel Board that the judge’s order violated her First Amendment right to freely associate with Turner during her after-hours time. We find Wilson and Milligan distinguishable.

In Wilson, a city police officer was fired for dating the daughter of a convicted felon and reputed member of organized crime. The officer appealed his dismissal, asserting that the city had infringed upon his right to freedom of association. The city took the position that dating was not the type of association protected by the First Amendment, asserting that only those associations aimed at the advancement of beliefs and ideals were intended to be constitutionally protected.

The United States Court of Appeals for the Eleventh Circuit determined that the First Amendment freedom of association extends even to purely social and personal associations such as dating; therefore, it held, the officer was fired for a reason infringing on a constitutionally protected right. In so holding, the court cautioned: “This is a narrow holding. We do not hold that a law enforcement officer may never be fired because of associations with others.” 733 F.2d at 1544 n. 3 (emphasis added). The court then cited decisions upholding an employer’s right to curtail certain personal associations because of “ ‘the exigencies of .., discipline’ ” or the interest in “ ‘instill[ing] public confidence in the law enforcement institution.’ ” Id.

In Milligan, a probationary teacher’s aide sued a city board of education, alleging that she had been dismissed from her employment in violation of her First Amendment right to freedom of association. In opposition to the board’s motion for a summary judgment, the teacher’s aide submitted an affidavit from one of the school board members. The affidavit averred that the aide had been placed on a list of persons to be dismissed as a “bargaining chip” in order to force the school board member, who had a close personal association with the aide and her family, to vote a certain way. When the school board member declined to vote as requested, the aide was dismissed. The circuit court entered a summary judgment for the board, and the aide appealed. On appeal, the board asserted that the aide had failed to present any evidence indicating that she had been dismissed because of her exercise of rights protected under the First Amendment; instead, it said, her dismissal was the lawful dismissal of an “at will” employee.

This court reversed, holding that there was a genuine issue of material fact regarding whether the aide had been dismissed in violation of a constitutionally protected right. As guidance for the trial court on remand, this court stated that the aide would have the burden of establishing that her conduct was constitutionally protected and that her constitutionally protected conduct was a substantial or motivating factor in the adverse employment decision. 628 So.2d at 629. If she met that burden, the board would then be required to show by a preponderance of the evidence that it would have reached the same employment decision in the absence of the protected conduct. Id.

Wilson and Milligan should be read as decisions disapproving adverse actions against employees based solely upon the existence of the employees’ social and personal associations. In the present case, Brackin was not dismissed because of the existence of a personal or social relationship with Turner, but because she disobeyed her supervisor’s directive to curtail, for a limited time, acting on that relationship. The judge’s order prohibiting contact with Turner was a reasonable and limited restriction on Brackin’s right to freedom of association that, by its terms, was to last only for the duration of a police investigation into illegal conduct in the magistrates’ office. Clearly, the judge’s order was one “ ‘which a superior officer [was] entitled to give and entitled to have obeyed,’ ” see Heath v. Alabama State Tenure Comm’n, 401 So.2d at 70, because it was “ ‘reasonably related to the duties of the employee,’ ” id. City magistrates have a duty to adhere to the “ ‘strict accountability requirements in the statutes and in Rule 19[, Ala. R. Jud. Admin.,]’ ” regarding “ ‘each and every [UTTC] “issued to law enforcement officers.” ’ ” Lawrence v. State, 601 So.2d at 195. Judge Evans-Gordon could reasonably have decided that, under the circumstances, that duty encompassed the obligation to avoid the appearance of impropriety that might arise if one city magistrate were to converse with another city magistrate during an investigation of the second magistrate for flouting the accountability requirements.

The Personnel Board was authorized to conclude that the directive prohibiting even after-hours contact with Turner was warranted by the judge’s understandable concern that any fraternization with Turner by another magistrate who continued to work in, and have access to computer records of, a public agency in which a “ticket-fixing” incident had allegedly occurred, could compromise or call into question the integrity of the police investigation into the illegal conduct. We hold that the circuit court erred in determining that the Personnel Board was not presented with substantial evidence indicating that Brac-kin was insubordinate by conversing with Turner in violation of Judge Evans-Gordon’s order.

The Probation Violation

The Personnel Rules outline a system of progressive employee discipline. For a “minor offense,” the first step is formal counseling, which involves a conversation between a supervisor and an employee about a performance issue. The next step is a written warning, followed by a final warning, or a final warning and a one- to five-day suspension without pay, after which discharge may occur.

The disciplinary action that follows the commission of a “major offense” is a final warning and a 1- to 20-day suspension without pay. The employee who commits a “major offense” is, in effect, put on a two-year probationary period. Section 3-20(2)(b) of the Personnel Rules provides:

“The disciplinary progression period for ‘Major’ category offenses shall be twenty-four consecutive months from the date of the last ‘Major’ category offense violation. In order for an employee to clear his record óf ‘Major’ category offenses, the employee must not commit any major category disciplinary offenses during the twenty-four month progression period.”

The commission of any other “major offense” within 24 months after having been disciplined for a previous “major offense” is a ground for discharge. Section 3-30(4) of the Personnel Rules provides, in pertinent part:

“Final Warning and One to Twenty Days Suspension Without Pay. This is the disciplinary action that follows violation of any offense classified as ‘Major.’ A due process hearing (Determination Hearing) is conducted with the employee prior to making a decision to implement this disciplinary action (Personnel Regulation IV). The supervisor will meet in a formal discussion with the employee explaining the exact offense(s) the employee violated and the seriousness and consequences of the offense(s). The supervisor shall instruct the employee how he/she may correct his/her performance and/or behavioral problem. The supervisor shall explain to the employee that the violation of any further ‘Major Offense’ within two years from the date of record of this offense is grounds for discharge.”

Section 3-30(5), entitled “Discharge,” provides:

“Discharge is the most severe disciplinary action that may be taken against an employee. A due process hearing (Determination Hearing) must be conducted with an employee prior to making a decision to discharge an employee (Personnel Regulation IV). An employee who does not correct performance and/or behavioral problems after the progressive discipline process for ‘Minor’ and/or ‘Major Offenses’ or an employee who commits an ‘Intolerable Offense’ is indicating an inability or unwillingness to correct his/her behavior. By utilizing progressive discipline, it is hoped that many employee problems can be corrected at an early stage, thereby benefitting both employees and the City by eliminating an employee’s discharge from his/her position with the City of Dothan.”

At the Personnel Board hearing, Brac-kin argued that the conduct made the basis of, the § 3^12(6) charge against her— that she was negligent in failing to account for the Phelps ticket — occurred on December 4, 2002, but that the Personnel Board erroneously treated the conduct, for purposes of the two-year major-offense probationary period, as having occurred on April 29, 2005 — the date Judge Evans-Gordon discovered the conduct and signed the City of Dothan Employee Disciplinary Action Report Form (“the disciplinary form”). Brackin maintained that, because she did not commit the alleged offense within two years after April 22, 2004, when she was disciplined for a prior major offense, the alleged offense could not have been used as a ground for her dismissal. The City argues that the date of the second offense was, as a matter of law, April 29, 2005, and not December 4, 2002. It bases that argument on the fact that Brackin signed a disciplinary form containing the following notation:

“The offense[-]ffee time period required to clear a disciplinary record of ... MAJOR offenses is 24 months from the ‘date of record’ for last offense committed. (‘Date of Record’ is date form signed by department head).”

For three reasons, we hold that the Personnel Board erred as a matter of law in determining that the “date of record” for Brackin’s most recent major offense was April 29, 2005, rather than December 4, 2002. First, the actual wording of the notation on the disciplinary form does not support the City’s interpretation. The notation establishes the “date of record” only for an employee’s last (or prior) major offense (which, in this case, was April 22, 2004, the date Brackin was suspended for giving a citizen information about filing a claim for false arrest). Neither the notation nor the Personnel Rules purports to establish the “date of record” for a subsequent major offense, the offense that triggers the discharge option outlined in § 3-30(5) of the Personnel Rules. See Personnel Rules, § 3-20(2)(b):

“The disciplinary progression period for ‘Major’ category offenses shall be twenty-four consecutive months from the date of the last ‘Major’ category offense violation. In order for an employee to clear his record of ‘Major’ category offenses, the employee must not commit any major category disciplinary offenses during the twenty-four month progression period.”

(Emphasis added.)

Second, the City’s interpretation is at odds with the purposes of its progressive discipline policy. That policy is based on the assumption that an employee who has engaged in unacceptable behavior will be counseled, given a fair opportunity to modify his or her behavior, and warned that another infraction may lead to discharge. See generally William J. Sonnenstuhl et ah, Employee Assistance and Drug Testing: Fairness and Injustice in the Workplace, 11 Nova L.Rev. 709, 716 (Winter 1987) (stating that “[t]he purposes of progressive discipline ... are to give employees feedback on their behavior, to discover and correct the underlying causes of poor performance, and to induce employees, by progressive sanctions, to conform to standards in the future ”). The City’s Personnel Rules are based on the concept that

“[b]y utilizing progressive discipline, it is hoped that many employee problems can be corrected at an early stage, thereby benefitting both employees and the City by eliminating an employee’s discharge from his/her position with the City of Dothan.”

Personnel Rules, § 3-30(5)(emphasis added). Section 3-30(4) of the Personnel Rules provides, in pertinent part:

“The supervisor will meet in a formal discussion with the employee explaining the exact offense(s) the employee violated and the seriousness and consequences of the offense(s). The supervisor shall instruct the employee how he/ she may correct his/her performance and/or behavioral problem. The supervisor shall explain to the employee that the violation of any further ‘Major Offense’ within two years from the date of record of this offense is grounds for discharge.”

(Emphasis added.) By treating conduct that allegedly occurred in 2002 as having occurred in 2005, the City thwarted two of the purposes for the progressive discipline policy: giving the offending employee the opportunity to modify or correct her behavior after counseling; and warning the offending employee that a future infraction could lead to dismissal.

Third, the City’s progressive discipline policy is sufficiently analogous to the recidivist provisions of our Criminal Code that decisions interpreting the Alabama Habitual Felony Offender Act are persuasive. Section 13A-5-9, Ala.Code 1975, provides that “[i]n all cases when it is shown that a criminal defendant has been previously-convicted of a felony and after the conviction has committed another felony,” the criminal defendant must be sentenced to an enhanced penalty as a repeat offender. The Court of Criminal Appeals has consistently held that “the recidivist statute comes into play only when a defendant commits an offense after he has previously been convicted of a felony.” Burgess v. State, 412 So.2d 298, 299 (Ala.Crim.App.1982)(first emphasis in original; second emphasis added). See also Bridges v. State, 568 So.2d 13 (Ala.Crim.App.1989); and Hamm v. State, 439 So.2d 829 (Ala.Crim.App.1983). Similarly, the discharge option outlined in § 3-30(5) of the City’s Personnel Rules comes into play only when an employee commits a major offense within 24 months after she has been disciplined for a previous major offense.

Conclusion

Under the Personnel Rules, an employee who commits a major offense within 24 months after having been disciplined for a previous major offense is subject to dismissal. See § 3-30(4) and § 3-30(5), Personnel Rules. As we have explained, Brackin’s December 4, 2002, offense cannot be considered as a second major offense committed within 24 months after having been disciplined for a previous major offense on April 22, 2004. The Personnel Board’s August 19, 2005, order does not state whether it determined that Brac-kin committed either or both of the major offenses of insubordination and negligence in carrying out assigned duties. The order merely states that the Personnel Board “affirms the department head’s decision to terminate [Brackin’s] employment.”

Accordingly, we reverse the judgment of the Houston Circuit Court and remand the cause with instructions to that court to remand the cause to the Personnel Board with instructions to answer the following questions: (1) Did the Personnel Board determine that Brackin committed the major offense of insubordination within 24 months after having been disciplined for a previous major offense on April 22, 2004? and (2) If so, was that offense sufficient to warrant Brackin’s dismissal?

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., concurs in part in the rationale and concurs in the result, with writing.

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

MURDOCK, Judge,

concurring in part in the rationale and concurring in the result.

I concur in that portion of the main opinion explaining that the conduct made the basis of the “§ 3-42(6) charge” against Brackin — that she was “negligent” in failing to account for the Phelps ticket — did not occur within 24 months after Brackin was disciplined for a previous major offense and therefore could not provide the basis for the Personnel Board’s decision to uphold the termination of Brackin’s employment. Because of this conclusion, however, that portion of the main opinion titled “The Charge of Failing to Account for a Traffic Ticket” is dictum. Because I would not reach the issue addressed in that part of the main opinion, I only concur in the result reached by the main opinion.

The Personnel Board’s decision in this case does not reveal whether it found Brackin guilty of both the negligence and the insubordination offenses with which she was charged. Accordingly, we do not know which of these two alleged offenses constituted the “subsequent major offense” upon which Brackin’s dismissal was upheld, or whether it was upheld based on both of these alleged offenses. Since, as noted above, the negligence charge is not available as a basis for dismissal, on remand it will fall to the Personnel Board to assess the evidence and determine whether Brackin engaged in communications with Turner that constituted the major offense of insubordination. If it makes an affirmative determination in this regard, the Personnel Board must then make a determination as to whether Brackin’s dismissal should be upheld on this basis, or whether some lesser discipline should be imposed.

BRYAN, Judge,

concurring in the result.

I concur in the result because I am convinced that Judge Murdock is correct in concluding that “that portion of the main opinion titled ‘The Charge of Failing to Account for a Traffic Ticket’ is dictum.” 959 So.2d at 691 (Murdock, J., concurring in part in the rationale and concurring in the result).

The main opinion’s treatment of the First Amendment is based upon the premise that Brackin was punished for contact with Turner that did not involve attendance at church. The main opinion should not be interpreted as sanctioning the municipal judge’s prohibition of Brackin’s attending the same church as Turner. That prohibition violated Brackin’s right to attend the church of her choice, which is protected by the First Amendment.

      . The investigation ultimately revealed that Turner had promised to fix Phelps's speeding ticket in return for Phelps's doing work on Turner’s roof.

      . The UTTC is reproduced as Attachment One to Rule 19, Ala. R. Jud. Admin. The UTTC contains a page of “Instructions to Officers’’ that includes the following statement:
      “5. All copies of a voided ticket must be returned to the local issuing office.”


author: WISE, Judge.

text:
    Tommy Ray SHEFFIELD v. STATE of Alabama.
    CR-05-1234.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.

      Tommy Ray Sheffield, pro se.
    Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.
   WISE, Judge.

Tommy Ray Sheffield appeals from the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his July 1992 guilty-plea conviction for first-degree theft and his resulting sentence as an habitual felony offender to life imprisonment. No direct appeal was taken from this conviction.

On December 12, 2005, Sheffield filed the instant Rule 32 petition. He alleged in his petition that the trial court was without jurisdiction to render judgment or to impose sentence because, he said, (1) his conviction was “not based upon an information or an indictment and was time-barred ... because the statute of limitation had [expired]”; (2) “the indictment was multiplicitous”; and (3) “the guilty plea on one count acted as an acquittal on the other counts.” Without requiring an answer from the State, the trial court denied Sheffield’s petition on February 24, 2006. This appeal followed.

On appeal, Sheffield reasserts the claims presented in his petition to the trial court.

I.

Sheffield first contends that the trial court was without jurisdiction to render judgment or to impose sentence because, he said, his conviction was “not based upon an information or an indictment” and, further that he could not be convicted of first-degree theft because the statutory limitations period for that offense had expired.

The record indicates that in June 1988, an Etowah County grand jury returned a three-count indictment against Sheffield. Count one charged him with third-degree burglary, count two charged him with first-degree theft, and count three charged him with first-degree receiving and/or concealing stolen property. All three offenses arose out of the same course of conduct against Gregory Dale Lumpkin.

On December 1, 1988, pursuant to a negotiated plea agreement, Sheffield pleaded guilty to third-degree burglary and was sentenced, pursuant to the Habitual Felony Offender Act, to 20 years’ imprisonment. Before accepting Sheffield’s guilty plea, the court went over the terms of the plea agreement with Sheffield. Pursuant to the plea agreement, the receiving-stolen-property charge was dismissed; however, the theft charge was withdrawn and filed, with the understanding that that charge would be reinstated if Sheffield “got into trouble” at any point during his imprisonment and parole for the burglary conviction. The court further advised Sheffield that because he already had more than three prior felony convictions, the minimum sentence for his theft conviction would be life imprisonment. Sheffield indicated that he understood the terms of his plea agreement. The trial court accepted Sheffield’s guilty plea and sentenced him accordingly.

Sheffield served a portion of his -20-year sentence and was paroled. In 1992, while on parole, Sheffield was charged with possession of a controlled substance, thereby triggering the reinstatement of the 1988 charge for first-degree theft. On July 8, 1992, Sheffield pleaded guilty to first-degree theft and was sentenced to life imprisonment, with that sentence to run concurrently with the 20-year sentence imposed in 1988. (C. 36-49.) As a part of his plea agreement, Sheffield waived his right to appeal his theft conviction.

Sheffield’s claim that his conviction and sentence were not based upon an information or an indictment is without merit. Indeed, our examination of the record indicates that his conviction and sentence were based upon the June 1988 indictment. Likewise, Sheffield’s claim that his conviction and sentence were time-barred because more than three years had passed after the matter was withdrawn and filed is without merit. As this Court has previously stated:

“Section 15-8-71, Code of Alabama 1975 states:
“ ‘In all criminal cases in the circuit court in which a capias or warrant of arrest has issued for two terms and has been returned “not found,” the district attorney may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement. In all cases where a defendant is confined in one of the Alabama state hospitals under the provisions of sections 15-16-21 and 15-16-22, the district attorney may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement.’
“We do not find that this statute limits the circumstances in which an indictment can be reinstated. There is nothing in the statute which indicates to this court that the reinstatement of an indictment is allowed only in the two situations set out above.
“Historically, an indictment which has been dismissed or nolle prossed can be reinstated within the same term of court due to the court’s inherent power to vacate and set aside their orders of judgment within the same term of court. United States v. Rossi 39 F.2d 432 (9th Cir.1930); State v. Lonon, 331 Mo. 591, 56 S.W.2d 378 (1932); People v. Watson, 394 Ill. 177, 68 N.E.2d 265 (1946).
“The reinstatement of an indictment, which has been unconditionally nolle prossed during one term of court, is generally precluded at a subsequent term of court. State v. Veterans of Foreign Wars Post 1856, 223 Iowa 1146, 274 N.W. 916 (1937); State v. Montgomery, 276 S.W.2d 166 (Mo.1955). See generally 112 A.L.R. 383, 21 Am.Jur.2d, Criminal Law, § 513; 41 Am.Jur.2d, Indictments and Informations, § 36.
“However, there is authority that permits the reinstatement of an indictment which has been nolle prossed, at any time, under special circumstances. See 41 Am.Jur.2d, Indictments and Informa-tions, § 36. One of those special circumstances is in a situation similar to the one at bar. [United States v.] Barker, [681 F.2d 589 (9th Cir.1982) ], (reinstatement of dismissed indictment for first degree murder approved after defendant withdrew her plea of guilty to second degree murder); Hawk [v. Berkemer ], [610 F.2d 445 (6th Cir.1979)] (charges dismissed pursuant to a plea agreement could be reinstated when defendant’s guilty plea to another charge was reversed on appeal); United States v. Wells, 430 F.2d 225 (9th Cir.1970) (if defendant successfully withdraws guilty plea, there is nothing to prevent the government from reviving the counts that were dismissed as a result of the guilty plea); United States v. Gerard, 491 F.2d 1300 (9th Cir.1974) (in dicta, court stated that, if a defendant succeeds in withdrawing guilty plea, he should not be able to object to the prosecutor’s reviving other charges dismissed as a result of his guilty plea); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (in footnote 2, the Supreme Court said that, if the defendant is allowed to withdraw his guilty plea, he would then plead anew to the original charges); Blackburn v. State, 290 S.E.2d 22 (W.Va.1982) (if defendant chooses to disregard plea agreement, the State should be allowed to reinstate any charges dismissed pursuant to the plea agreement); State v. Burkett, 231 Kan. 686, 648 P.2d 716 (1982) (when defendant is allowed to withdraw from plea bargain agreement, the State may reassert the original felony charge); People v. Keenan, 185 Colo. 317, 524 P.2d 604 (1974) (when guilty plea is vacated on appeal, charges dropped as a result of plea bargaining could be reinstated); Clark [v. State], [294 Ala. 485, 318 So.2d 805 (1974) ]. But see Allman v. State, 677 P.2d 832 (Wyo.1984) (further prosecution on an indictment which has been dismissed is a nullity and reinstatement of the indictment was not permitted); Niece v. State, 456 N.E.2d 1081 (Ind.App. 2 Dist.1983) (after defendant’s guilty plea was vacated, trial court improperly reinstated count of indictment which had been dismissed pursuant to a plea agreement).
“The courts that have approved the reinstatement of dismissed charges after the vacation of a guilty plea seem to imply that this is a valid remedy due to the conditional nature of dismissed charges resulting from a guilty plea. When charges are dismissed as a part of a plea bargain agreement, the dismissal of the charges is conditioned upon the defendant being convicted and remaining convicted of the offense to which he pled guilty. [United States v.] Anderson, [514 F.2d 583 (7th Cir.1975) ]. When the State dismisses a charge pursuant to a plea agreement, it does so relying on the fact that the defendant will plead guilty to the remaining charge or charges and that his conviction will stand.
“Since the defendant is allowed to withdraw from his part of the bargain in a guilty plea agreement, should not the State be afforded the same right? It is hardly surprising that, when a defendant is successful in withdrawing his guilty plea, the State would seek to withdraw its consent to the dismissal of charges as a result of the guilty plea. United States ex rel. Williams v. McMann, Warden, 436 F.2d 103 (2nd Cir.1970).
“In Sweetwine v. State, 42 Md.App. 1, 398 A.2d 1262 (1979), Judge Moylan stated that ‘[¾ the context of a negotiated plea of guilty, the whole package of reciprocal arrangements and obligations is conditional. The condition is the continuing good health of the guilty plea. If it is voided, both the defendant and the State return to “square one.” They both begin again with a clean slate. The invalidation of the “contract” invalidates all obligations under that contract by either contracting party.’ Sweetwine, supra, 398 A.2d at 1265 (footnotes omitted).
“Thus, it seems that, when the defendant withdraws his guilty plea or it is vacated for some other reason, then the State is free to pursue the charges which were dismissed as a result of the plea agreement. Myers v. Frazier, 319 S.E.2d 782 (W.Va.1984).”

Williams v. State, 494 So.2d 819, 822-24 (Ala.Crim.App.1986) (footnotes omitted).

Here, Sheffield failed to comply with the terms of his 1988 plea agreement on the burglary charge. Thus, pursuant to his plea agreement, the theft charge was properly reinstated. We note that this case does not involve a situation where the defendant was indicted or reindicted after the charges against him were nol-prossed and the statute of limitations had expired. Compare Ex parte Campbell, 784 So.2d 323, 325-27 (Ala.2000); Finley v. State, 683 So.2d 7, 8 (Ala.Crim.App.1996). Instead, the plea agreement called for the first-degree-theft charge to be “withdrawn and filed,” indicating that the indictment returned in June 1988 — and which was returned before the statute of limitations had expired — remained pending. See Skinner v. State, 843 So.2d 820, 822-24 (Ala.Crim.App.2002) (recognizing the distinction between a charge that is “withdrawn and filed” and one that is nol-prossed). Because Sheffield’s prosecution was commenced in June 1988, within the three-year limitation period provided in § 15-3-1, Ala.Code 1975, it was not time-barred. As a result, the trial court properly allowed the State to reinstate the theft charge against Sheffield.

II.

Sheffield next contends that the trial court was without jurisdiction to render judgment or to impose sentence because, he said, the indictment was multiplicitous. Specifically, Sheffield contends that counts two and three of the indictment charging him with first-degree theft and first-degree receiving stolen property arose out of the same act as count one, the third-degree burglary charge. Therefore, he argues, because all three offenses arose out of the same transaction his conviction for first-degree theft violated the constitutional prohibition against double jeopardy.

Contrary to Sheffield’s claim, because the burglary and theft offenses each required proof of an element not present in the other offense, there was no double-jeopardy violation in convicting Sheffield for third-degree burglary and first-degree theft arising out of the same course of conduct. See Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000); Ex parte McKelvey, 630 So.2d 56, 57 (Ala.1992). However, as the Supreme Court noted: “where a defendant is charged with both burglary and theft ... arising from a transaction that is the foundation for both charges, the defendant may receive only one punishment.” Ex parte McKelvey, 630 So.2d at 57 (citing Vason v. State, 574 So.2d 860, 863 (Ala.Crim.App.1990), and numerous other cases recognizing this proposition); see also Brown v. State, 821 So.2d 219, 225 (Ala.Crim.App.2000) (noting that a defendant may be sentenced for burglary and theft convictions arising out of the same transaction if the sentences are ordered to run concurrently, rather than consecutively). Thus, the trial court could not sentence Sheffield to life imprisonment for the first-degree theft charge. Instead, the court was limited to the same 20-year sentence imposed for the burglary conviction. Accordingly, this case must be remanded for the trial court to set aside the sentence imposed in 1992 and to resen-tence Sheffield in accordance with this opinion.

III.

Sheffield also contends that the trial court was without jurisdiction to render judgment or to impose sentence because, he claims, his guilty plea as to the burglary charge acted as an acquittal on the two remaining counts. This claim is without merit. Based on the express terms of his 1988 plea agreement, in exchange for Sheffield’s pleading guilty to the burglary charge, the first-degree-reeeiving-stolen-property charge would be dismissed, and the first-degree-theft charge was “withdrawn and filed” with leave to reinstate it. Thus, Sheffield’s conviction for burglary did not operate as an acquittal of the remaining charges against him. Moreover, Sheffield’s reliance on the Alabama Supreme Court’s decision in Bell v. State, 48 Ala. 684 (1872), is misplaced. The Supreme Court’s decision in Bell stands merely for the proposition that when an indictment contains alternative counts charging the defendant with the same offense, the conviction under one count necessarily serves as an acquittal of the remaining alternative counts. Each of the counts in Sheffield’s indictment charged him with a separate offense. Moreover, as previously discussed, none of the charges ran afoul of the prohibition against double jeopardy. Accordingly, Sheffield’s conviction for third-degree burglary did not serve as an acquittal on the theft and receiving-stolen-property charges.

For the reasons set forth in Part II of this opinion, this case is remanded to the trial court with instructions that it resen-tence Sheffield in accordance with the Alabama Supreme Court’s holding in Ex parte McKelvey, 630 So.2d 56 (Ala.1992), and this Court’s holding in Brown v. State, 821 So.2d 219 (Ala.Crim.App.2000). On remand the court shall take all necessary action to see that the circuit court makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, p.j„ and COBB, BASCHAB, and SHAW, JJ„ concur.

      . A transcript of the 1988 plea colloquy is contained in the record on appeal.

      . Because the first-degree receiving stolen property charge against Sheffield was not reinstated, this portion of Sheffield’s argument is moot. We note, however, that the prohibition against double jeopardy is not violated when a defendant is convicted of theft of properiy and disposing of that same property. See Stoinski v. State, 956 So.2d 1174 (Ala.Crim.App.2006); Smith v. State, 739 So.2d 545 (Ala.Crim.App.1999).

      . Sheffield claimed that the trial court ordered the life sentence for his theft conviction to run consecutively with the 20-year sentence imposed for third-degree burglary. This claim is without merit, as the court ordered Sheffield’s life sentence to run concurrently with the 20-year sentence imposed in 1988. However, we note that based on Brown v. State, supra, the court could not order that the sentence run consecutively to the sentence imposed for his 1988 burglary conviction.

       Note from the reporter of decisions: On December 1, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: COBB, Judge.

text:
    Bradford Savage Dominic MULDOON v. STATE.
    CR-04-1758.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Rehearing Denied Dec. 1, 2006.

      Thomas Scott Smith, Jr., Dothan, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   COBB, Judge.

Bradford Savage Dominic Muldoon appeals from his misdemeanor conviction, pursuant to a guilty plea, for driving under the combined influence of alcohol and controlled substances, a violation of § 32-5A-191(a)(4), Ala.Code 1975. Muldoon was sentenced to 12 months in the county jail; that sentence was suspended on the condition that he complete two years’ probation. He was also ordered to pay a fine of $600 and court costs, to complete a substance-abuse program, and to surrender his driver’s license.

Before entering a guilty plea, Muldoon reserved for appellate review “the issue as to whether or not the arrest was a lawful arrest.”

At the hearing on Muldoon’s motion to dismiss the charge, the following facts were stipulated: On March 30, 2003, Mul-doon was involved in a single-vehicle accident. He was transported unconscious from the scene of the accident to Flowers Hospital, where he remained in a coma for three days. State Trooper Mark Nielson arrived at the accident scene to investigate the accident after Muldoon had been transported to the hospital. There is no information in the record concerning Trooper Nielson’s investigation at the accident scene. Trooper Nielson first saw Muldoon at Flowers Hospital, where Muldoon was in a coma. Trooper Nielson did not speak to Muldoon until some time after Muldoon awoke from the three-day coma. There is nothing in the record concerning what information Trooper Nielson obtained after arriving at the hospital. On March 30, 2003, Trooper Nielson issued a Uniform Traffic Ticket and Complaint (“UTTC”) to Muldoon charging Muldoon with misdemeanor driving under the influence (“DUI”). That UTTC was later dismissed, and on August 21, 2003, a new UTTC was issued to Muldoon charging him with driving under the combined influence of alcohol and controlled substances.

Based on the above stipulated facts, Muldoon argued that the charges should be dismissed because, he says, his arrest was illegal. According to Muldoon, Trooper Nielson did not see him at the accident scene; therefore, Nielson had no personal knowledge of facts or circumstances — i.e., probable cause — to justify a warrantless arrest. According to Muldoon, the mere issuance of a summons pursuant to a UTTC was insufficient to effect an arrest. Muldoon argued that under the facts of his case the proper procedure to perfect his arrest would have been to obtain an arrest warrant as required by § 32-5-310, Ala. Code 1975.

Section 32-5-310, Ala.Code 1975, permits a police officer to arrest a person for a misdemeanor without a warrant if the offense is committed in the officer’s presence. Conversely, § 32-5-310, Ala.Code 1975, requires an arrest for a misdemeanor be made pursuant to a warrant if the officer does not observe the commission of the offense. Moreover, Muldoon argued that § 32-5-171, Ala.Code 1975, specifically addresses DUI charges by allowing an officer who did not witness the accident, but who is on the scene with the driver and determines that the driver is under the influence, to arrest the driver at the scene of the accident. See Ingram v. State, 720 So.2d 1036 (Ala.Crim.App.l998)(arrest at the hospital upheld where investigating troopers testified that based on the strong odor of alcohol on driver at the accident scene, and what appeared to be the path of vehicles before the crash, they formed the opinion at the accident scene that driver was intoxicated).

Therefore, Muldoon argued that because Trooper Nielson was not a witness to the accident and was not on the scene at the same time as Muldoon, his warrantless arrest was “an illegal arrest in violation of the Alabama law and his right to procedural due process.” Thus, Muldoon argued that the case against him was due to be dismissed.

The State responded in part by arguing that Muldoon agreed to turn himself in after his recovery and release from the hospital. At that point, the State argued, the investigation had been completed, and, thus, an arrest warrant was unnecessary.

On April 26, 2005, the trial court denied the motion to dismiss by notation on the case-action summary sheet. On May 2, 2005, before trial, the parties were heard on miscellaneous motions. After hearing arguments on the various motions, the trial court orally denied all pending motions. With the complete acquiescence of the trial court, Muldoon reserved for appellate review issues, see infra, before entering a guilty plea.

On appeal, Muldoon contends that the trial court erred in denying his motion to dismiss because his arrest was illegal in that “the officer did not see the defendant drive a vehicle, inside a vehicle, or even at the scene of a vehicle accident” and thus there was no probable cause to support a warrantless arrest. (Muldoon’s brief at 12.) Also, Muldoon contends that Trooper Nielson did not issue the new UTTC until almost five months after the accident. Thus, according to Muldoon, there was no valid reason the officer could not have obtained a lawful warrant to execute a valid arrest during that period of time.

It is unclear whether Muldoon’s appellate claim regarding the five-month delay in issuing the second UTTC is a separate claim that he did not reserve before entering his guilty plea or an argument in support of the claim reserved at trial. Nevertheless, as the State correctly asserted, the statute of limitations for a misdemeanor offense is one year. § 15-3-2, Ala.Code 1975 (“Unless otherwise provided, the prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense.”). Thus, the UTTC was timely issued within one year.

As to Muldoon’s claim that his arrest was illegal because, he says, there was no probable cause and no arrest warrant was issued, we note:

“In misdemeanor traffic cases, the UTTC is the formal charging instrument, analogous to an indictment and conferring original subject matter jurisdiction on the district or municipal court, and on the circuit court in the case of a de novo appeal. Young[ v. City of Hokes Bluff], 611 So.2d [401] at 411-13 [ (Ala.Crim.App.),] (Bowen, J., concurring in result)!, aff'd, 611 So.2d 414 (Ala.1992) ]; Sanders v. City of Birmingham, 669 So.2d 236, 238 (Ala.Cr.App.1995). See also Rule 2.2(d), Ala.R.Crim.P., as amended effective August 1,1997.”

Stoll v. State, 724 So.2d 90, 91-92 (Ala.Crim.App.1998).

“ ‘ “As a general rule, the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent [UTTC], by which the court acquires jurisdiction over the person of the defendant.” ’ ” Taylor v. State, 589 So.2d 804, 805 (Ala.Crim.App.1991)(quoting Coral v. State, 551 So.2d 1181, 1182 (Ala.Crim.App.1989), quoting in turn 41 Am.Jur.2d Indictments and Informations § 18 (1968)). “ ‘An illegal arrest “does not void a subsequent conviction,” ... does not bar prosecution on [a UTTC] returned after the arrest, ... and does not entitle the accused to a dismissal of the charges against him....’” Holland v. State, 615 So.2d 1313, 1317 (Ala.Crim.App.1993) (quoting Atwell v. State, 594 So.2d 202, 208 (Ala.Crim.App.1991)).

Therefore, even if, as Muldoon alleges, the arresting officer lacked probable cause to effect the arrest, and if an arrest warrant separate from the UTTC should have been obtained, Muldoon was not entitled to have the UTTC (indictment) dismissed. “ ‘[T]he remedy for illegal pretrial detention, other than pretrial release, may be the suppression of any evidence obtained as a result of that illegal detention — not the dismissal of the charge against the accused.’ ” Taylor v. State, 589 So.2d at 806 (quoting Speers v. State, 545 So.2d 247, 250 (Ala.Crim.App.1989)). A motion to dismiss was not the appropriate remedy for the allegedly illegal arrest.

Based on the foregoing, we affirm the trial court’s denial of Muldoon’s motion to dismiss.

AFFIRMED.

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

      . S ection 3 2-5-310 provides:
      "Any peace officer, including state troopers, sheriffs and their deputies, constables and their deputies, police officers and marshals of cities or incorporated towns, county police or patrols, state or county license inspectors and their deputies, and special officers appointed by any agency of the State of Alabama for the enforcement of its laws relating to motor vehicles, now existing or hereafter enacted, shall be authorized, and it is hereby made the duty of each of them to enforce the provisions of this chapter and to make arrests for any violation or violations thereof, without warrant if the offense be committed in his presence, and with warrant if he does not observe the commission of the offense. If the arrest be made without warrant, the accused may elect to be immediately taken before the nearest court having jurisdiction, whereupon it shall be the duty of the officer to so take him. If the accused elects not to be so taken, then it shall be the duty of the officer to require of the accused a bail bond in a sum not to exceed $300.00, conditioned that the accused binds himself to appear in the nearest court having jurisdiction at the time fixed in the bond. In case the arrested person fails to appear on the day fixed, the bond shall be forfeited in the manner as is provided for the forfeiture of bonds in other cases. No officer shall be permitted to take a cash bond. The officer making the arrest and taking the, bond shall report the same to the court having jurisdiction within 18 hours after taking such bond.”

      .Section 32-5-171 provides:
      "A uniformed police officer, state trooper, county sheriff or his deputy or member of a municipal police force may arrest, at the scene of a traffic accident, any driver of a vehicle involved in the accident if upon personal investigation, including information from eyewitnesses, the officer has reasonable grounds to believe that the person by violating Section 32-5A-191 contributed to the accident. He may arrest such a person without a warrant although he did not personally see the violation.”

      . The stipulation of facts is devoid as to facts related to probable cause to arrest. The record contains references to medical records; however, the content of these records were not discussed on the record and the medical records were not entered into evidence.

      . In some instances Muldoon's brief refers to a lack of reasonable suspicion; it is clear the argument concerns probable cause.