author: COBB, Judge.

text:
    John Edward BEAVERS v. STATE of Alabama.
    CR-03-1590.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2004.

      John E. Beavers, pro se.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   COBB, Judge.

On May 24, 2004, John Edward Beavers filed a Rule 32, Ala. R.Crim. P., petition, his second. See Beavers v. State (No. CR-99-0732), 805 So.2d 799 (Ala.Crim.App. 2000) (table). On June 8, 2004, the State filed a motion for summary disposition, asserting numerous grounds. On June 11, 2004, the trial court summarily denied Beavers’s petition, by noting in the record: “[State’s] motion is granted, Rule 32 Petition dismissed.” (C. 19.) Beavers now appeals from the trial court’s summary disposition of his postconviction petition.

In his petition, Beavers raised a single issue — whether the trial court lacked subject-matter jurisdiction over him in 1976 when he was convicted of four counts of burglary in the second degree. Beavers contended that, when the burglaries were committed, he was 16 years of age. Therefore, Beavers argued, the trial court was required to ascertain whether he was a “child” and thus subject to the jurisdiction of the juvenile court under § 12-15-33(a), Ala.Code 1975, and the trial court’s failure to do so violated the mandate of the Alabama Supreme Court set forth in Ex parte Ward, 540 So.2d 1350 (Ala.1988). (C. 15-16.) According to Beavers’s petition, on July 28, 1976, he was convicted of four counts of burglary in the second degree and was sentenced to imprisonment for three years, two and one-half years, two years, and one and one-half years, respectively. (C. 6.)

On appeal, Beavers contends that the trial court erred by not stating the factual basis for denying his Rule 32 petition and that he was entitled to an eviden-tiary hearing on his Rule 32 petition. In essence, Beavers requests that we remand this case for a hearing to determine whether the trial court lacked subject-matter jurisdiction of his case in 1976 and whether, accordingly, his prior convictions are due to be set aside.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987).” Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999).

In Ward, 540 So.2d at 1352-53, the Alabama Supreme Court noted that Alabama’s current statutes relating to juveniles, §§ 12-15-1 to -102, Ala.Code 1975, became effective October 10, 1975. The Court stated that if a defendant was charged with a crime that occurred after October 10, 1975, and the defendant was under the age of 17 years, the trial court was required to determine the juvenile status of the defendant. Absent such a determination, a trial court lacked subject-matter jurisdiction.

The State in its motion for summary disposition in the present case stated: “Two of the four convictions that the petitioner complains of and to which the Petitioner confessed, were committed prior to October 10, 1975, the effective date of Act No. 1205 which raised the age for juvenile to ‘under seventeen.’ Therefore, the Court had original jurisdiction.” (C. 17.) The State does not indicate whether the other two crimes occurred before or after October 10, 1975, and we are unable to make this determination from the record before us. We are also unable to determine Beavers’s age as of October 10, 1975 (or at the time the crimes occurred). As the State notes in its brief, Beavers’s birth date is indicated in the record as May 16, 1956, in one place, and May 16, 1959, in another. (C. 1, 3.) His date of birth is critical to determining whether he has standing to raise the claim he presently asserts.

We note that Beavers raised a similar argument in his first Rule 32 petition. We affirmed the trial court’s summary dismissal of his first petition because, we determined, Beavers had failed to adequately plead his claim to indicate that he was entitled to relief. See Beavers v. State (CR-99-0732), 805 So.2d 799 (Ala.Crim.App.2000) (table). Beavers’s present Rule 32 petition, while not as clear as it could be, avers that Beavers was 16 years of age when the underlying offenses were committed and, thus, does sufficiently state a claim that, if true, would entitle him to relief. “After facts are pleaded, which, if true entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.” Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003) (emphasis omitted).

Because the claim asserted by Beavers challenges the subject-matter jurisdiction of the trial court, the procedural bars of Rule 32.2, Ala. R.Crim. P., do not preclude his petition. Jurisdictional claims are “not precluded by the limitations period or by the rule against successive petitions.” Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998). The trial court’s summary dismissal of Beavers’ petition was, thus, error.

We hereby reverse the trial court’s summary dismissal of Beavers’ postconviction petition and remand this case to the trial court with directions that proceedings be conducted in accordance with this opinion. The trial court shall determine the date the offenses occurred and Beavers’s age at the time of the offenses, in order to ascertain if any or all of the 1976 burglary convictions are due to be set aside. The trial court shall take appropriate measures in accordance with this opinion and shall make due return of this case within 70 days of the date of this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . Beavers was tried and convicted for a fifth felony burglary charge in 1985. We affirmed that conviction and his related sentence. See Beavers v. State, 497 So.2d 612 (Ala.Crim.App.1986). Beavers was subsequently paroled, but his parole was revoked for his failure to comply with a term or condition of his parole that he stay out of Houston County, Alabama. We affirmed the revocation of his parole. See Beavers v. State, 666 So.2d 868 (Ala.Crim.App.1995). He filed a Rule 32 petition seeking to challenge his 1985 conviction and sentence, which the trial court and then this Court dismissed. See Beavers v. State (CR-98-1473), 778 So.2d 879 (Ala.Crim.App.1999) (table). After our dismissal, he filed a petition for a writ of mandamus, contending the trial court should have granted his request for in forma pauperis relief. The Alabama Supreme Court granted his petition. See Ex parte Beavers, 779 So.2d 1223 (Ala.2000).

      . Beavers alleged in his prior petition that it "appear[ed)'' that he was 16 years of age at the time the offenses were committed. This court may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Bernard GORDON v. STATE of Alabama.
    CR-04-0052.
    Court of Criminal Appeals of Alabama.
    Jan. 28, 2005.
    Bernard Gordon, pro se.

      Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Bernard Gordon, appeals the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P., in which he challenged the revocation of his probation.

On July 26, 2000, the appellant, Bernard Gordon, pleaded guilty as a youthful offender to assault in the second degree. Gordon states in his Rule 32 petition that he was sentenced to three years’ imprisonment. It appears that the trial court, when it sentenced Gordon on September 13, 2000, split the sentence and ordered Gordon to serve six months’ imprisonment followed by two years and six months’ probation. The trial court also gave Gordon credit for the six months that he served before the guilty plea proceedings. On February 27, 2003, the trial court revoked Gordon’s probation and ordered that he serve 2 years and 10 months’ imprisonment.

On June 25, 2004, Gordon filed the Rule 32 petition that is the subject of this appeal. In his petition, Gordon argued that the trial court erroneously amended his sentence when, upon revocation of his probation, it imposed a sentence in excess of his original sentence. After the State responded, the trial court issued an order summarily denying Gordon’s petition, noting that Gordon had agreed to the amendment of his sentence. This appeal followed.

Initially, we note that a trial court does not have jurisdiction to impose a sentence not provided for by statute. Therefore, “ ‘[a]n illegal sentence may be challenged at any time.’ ” Johnson v. State, 722 So.2d 799, 800 (Ala.Crim.App.1998) (quoting J.N.J., Jr. v. State, 690 So.2d 519, 520 (Ala.Crim.App.1996)).

Here, it appears that the circuit court initially imposed a sentence of three years; it then split the sentence and ordered Gordon to serve six months’ imprisonment followed by two years and six months’ probation. Gordon was further given six months’ credit for time served; this time was applied to the six-month period of confinement. After Gordon had served 29 months of probation, the trial court revoked Gordon’s probation and ordered that he serve 2 years and 10 months’ imprisonment.

By virtue of the split sentence imposed on September 13, 2000, the circuit court retained jurisdiction to further modify Gordon’s sentence; however, “[i]f the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence .... ” § 15-22-54(d)(2), Ala. Code 1975. See also Parker v. State, 648 So.2d 653, 656 (Ala.Crim.App.1994). The State has requested that we remand this case to the circuit court for a determination as to whether the sentence the trial court imposed at the revocation hearing exceeded Gordon’s original sentence and, if so, for that court to resentence Gordon in compliance with §§ 15-19-6 and 15-22-54, Ala.Code 1975. The record supports such a request. Accordingly, we remand this case for the Barbour Circuit Court to address the merits of Gordon’s claim that the circuit court erroneously amended his sentence when, upon revocation of his probation, it imposed a sentence in excess of his original sentence. Should the trial court deem it necessary to hold an evidentiary hearing addressing Gordon’s claim, the circuit court’s return to remand shall include a transcript of those proceedings. Should the trial court determine that the sentence imposed following the revocation of Gordon’s probation was in excess of that authorized by statute, the circuit court shall resentence Gordon in accordance with §§ 15-19-6 and 15-22-54, Ala.Code 1975.

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time -within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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


author: SHAW, Judge. COBB, Judge,

text:
    STATE of Alabama v. Jameson Lamar HARGETT.
    CR-03-1548.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2005.

      Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellant.
    Thomas M. Goggans, Montgomery, for appellee.
   SHAW, Judge.

The State of Alabama appeals from the trial court’s order suppressing evidence of cocaine obtained after a traffic stop of an automobile being driven by Jameson Lamar Hargett.

At the suppression hearing, William Glenn Ware, who was a sergeant with the Lanett Police Department in 2002, testified that on November 27, 2002, a little before midnight, he saw a brown four-door vehicle, driven by Hargett, sitting at a stop sign. According to Sgt. Ware, he was to the left of the vehicle, and when the vehicle proceeded through the intersection in front of him, he noticed that Hargett was not wearing a seat belt. Sgt. Ware testified that the area where he first saw the vehicle was lit by streetlights, but that he saw the vehicle only for a matter of seconds. Sgt. Ware stated that Hargett was wearing a black jacket and a brown shirt, but he could not remember the color of the interior of the vehicle. Sgt. Ware testified that he pulled in behind the vehicle, and at that point he noticed that the front-seat passenger was also not wearing a seat belt. According to Sgt. Ware, he executed a traffic stop of the vehicle, and when he spoke with Hargett, he smelled the “odor of an alcoholic beverage coming from [Hargett’s] person.” (R. 5.) Sgt. Ware decided to run a check on Hargett’s driver’s license; because there were two other males in the vehicle and he was concerned for his safety, he asked Hargett to step out of the vehicle and to go back to Sgt. Ware’s patrol car. After Hargett got out of his vehicle and he began to talk to Hargett, Sgt. Ware said, he noticed that Hargett was having difficulty talking because his mouth was full- — specifically Sgt. Ware testified that Hargett had “something large” (R. 6) located “in his cheek.” (R. 13.) Sgt. Ware testified on direct examination that because Hargett was having difficulty speaking, he “asked [Har-gett] to open his mouth” and that when Hargett complied with that request, Sgt. Ware saw “several off-white rock substances in a clear plastic bag.” (R. 6; emphasis added.) On cross-examination, however, Sgt. Ware testified, twice, that he “told [Hargett] to open his mouth.” (R. 8; R. 14; emphasis added.) After seeing the cocaine in Hargett’s mouth, Sgt. Ware told Hargett to spit out the bag, which Hargett did. At that point, Sgt. Ware said, Har-gett attempted to run away, but he fell, at which point Sgt. Ware handcuffed and arrested Hargett. Sgt. Ware then field-tested the substance; it tested positive for cocaine. Hargett was subsequently indicted for the unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975.

Hargett called his grandmother, Ray-cene Hargett, to testify on his behalf at the suppression hearing. Raycene testified that Hargett’s car was a two-door car, not a four-door car as Sgt. Ware testified, and that the interior of the car was dark brown. Raycene also testified that the seat belt on the passenger side of the car was broken.

At the hearing on his motion to suppress, Hargett argued (1) that the initial stop of his vehicle was illegal, and (2) that, even if the stop was legal, the cocaine was found pursuant to an unconstitutional war-rantless search of his person. In its written order granting Hargett’s motion to suppress, the trial court stated:

“This matter coming before the Court for hearing on a Motion to Suppress filed by [Hargett] and the Court having received testimony and having heard argument from counsel and considering the same, said motion is hereby Granted as to all items seized as a result of the traffic stop of [Hargett] on November 28, 2002.”

(C. 33.) The trial court made no findings of fact.

On appeal, the State argues that the stop of Hargett’s vehicle was lawful because, it says, Sgt. Ware observed that the occupants of the vehicle were not wearing seat belts and that Sgt. Ware lawfully ordered Hargett to open his mouth so that he could see the object that was preventing Hargett from talking. The State assumes that the trial court ruled on both suppression issues — the legality of the initial stop and the discovery of the cocaine in Hargett’s mouth. On the other hand, Har-gett argues that the sole basis for the trial court’s suppression of the cocaine evidence was that the initial stop was invalid. According to Hargett, it is clear from the record that the trial court did not find Sgt. Ware’s testimony — that he had stopped Hargett’s vehicle because of a seat-belt violation — to be credible, and that such credibility choices by a trial court should not be disturbed on appeal. Based on the record before us, we cannot determine the basis for the trial court’s suppression of the cocaine.

The trial court could have determined that Sgt. Ware’s testimony that he stopped Hargett’s vehicle after he saw that the occupants in the ear were not wearing seat belts was not credible and discounted it. Indeed, there is some suggestion in the record that the court did just that. The court questioned Sgt. Ware extensively about how far away he was from Hargett’s vehicle when he saw that Hargett was not wearing a seat belt; how long he had observed the vehicle before concluding that Hargett was not wearing a seat belt; what color clothing Hargett was wearing; and what color the seat belts in the car were. However, the court then made the following comment:

“Well, I think the stop is always going to be subjective. I mean, are you saying illegal stop? I don’t know. I wasn’t there. I don’t know what he saw or what. Certainly, it’s suspicious from that length that he sees no seat belts. I can’t say that he didn’t because I wasn’t there. I don’t know whether he did or not. He’s testified under oath that he did, in fact, see no seat belts on two of the people and saw none of the three had them on when he finally got them stopped. I’m assuming that his seconds of vision of these seat belts when they crossed was the basis for him following these folks. You know, I mean, I’m not there to say. I will say it’s highly suspicious, but I can’t say that it didn’t happen. I don’t know that you can either.”

(R. 28.)

It is equally plausible that the trial court credited Sgt. Ware’s testimony regarding the stop and found the stop to be valid but determined that the discovery of the cocaine was the result of an unconstitutional warrantless search of Hargett’s mouth. There is some indication in the record that that may have been the case. During a lengthy discussion on that issue, the trial court indicated that it believed Sgt. Ware’s testimony on cross-examination that he ordered Hargett to open his mouth, as opposed to his testimony on direct examination that he asked Hargett to open his mouth; that it believed Sgt. Ware’s order was the equivalent of a warrantless search that was not consensual; and that it seriously questioned the basis for such a search.

Because we cannot determine from the record the basis of the trial court’s suppression of the cocaine, we cannot properly review the trial court’s decision. In reviewing a trial court’s ruling on a motion to suppress, this Court reviews the trial court’s findings of fact under an abuse-of-discretion standard of review. “When evidence is presented ore terms to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,” Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); “[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,” Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make “ ‘all the reasonable inferences and credibility choices supportive of the decision of the trial court.’ ” Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. “[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflicts] should not be reversed on appeal.” Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993) (citations omitted). However, “ ‘[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ ” State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). “ ‘ “[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.” ’ ” Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004), quoting Hill, 690 So.2d at 1203, quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000).

The State argues that this Court should review the trial court’s ruling in this case de novo because, it says, the evidence at the suppression hearing was, in all material respects, undisputed, and the only question in this case is whether the trial court misapplied the law to the facts. We disagree. With respect to the legality of the initial stop, Sgt. Ware’s testimony that he saw that Hargett was not wearing a seat belt was not directly disputed; however, Sgt. Ware’s ability to see whether Hargett was wearing a seatbelt, given the circumstances — it was dark, the defendant was wearing dark-colored clothing, and the interior of the car was a dark color — was hotly disputed and could only be resolved by making a credibility choice. Although typically this Court would resolve this credibility choice in favor of the trial court’s ruling, we cannot do so in this case because, as noted above, we do not know whether the trial court suppressed the evidence because it found the stop to be invalid or whether it found the stop to be valid and suppressed the evidence because it found that the discovery of the cocaine resulted from an unconstitutional warrant-less search.

Likewise, with respect to the discovery of the cocaine, although Sgt. Ware was the only witness to testify regarding the circumstances of the stop, his testimony was internally inconsistent on a key fact— whether he asked Hargett to open his mouth and Hargett consented or whether he ordered Hargett to open his mouth and Hargett complied. This key fact dictates our review of this issue. If the trial ccfurt determined that Sgt. Ware asked Hargett to open his mouth and Hargett complied, the proper inquiry is the voluntariness of Hargett’s consent. On the other hand, if Sgt. Ware ordered Hargett to open his mouth, the proper inquiry is whether such an order violated the Fourth Amendment’s proscription against unreasonable searches and seizures. We decline, at this time, to express any opinion with respect to these inquiries, because we cannot, based on the record, determine which inquiry is appropriate. Indeed, we do not even know, at this time, whether either inquiry will be necessary because if the trial court determined that Sgt. Ware’s testimony regarding the initial stop of Hargett’s vehicle was not credible and suppressed the evidence on the basis that the stop was invalid, inquiry into the discovery of the cocaine would be unnecessary.

We recognize that “the trial court is not required by any rule or statute to set forth findings of fact in an order denying or granting a motion to suppress.” Smith, 785 So.2d at 1173. However, given the unique circumstances in this case, we are unable to properly review the trial court’s ruling and, thus, we must remand this case for the trial court to clarify the basis for its suppression of the cocaine and to issue specific written findings of fact and conclusions of law regarding its determination of (1) the validity of the initial stop of Hargett’s vehicle, and (2) the legality of the discovery and seizure of the cocaine in Hargett’s mouth. Due return shall be filed with this Court within 35 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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

COBB, Judge,

dissenting.

The trial court in this case granted Har-gett’s motion to suppress. The majority holds that the case must be remanded for the trial court to make specific written findings of fact and conclusions of law and to clarify the basis for its ruling. I disagree; the record contains sufficient support for the trial court’s ruling. The order granting the motion to suppress should be affirmed.

The majority sets out much of the relevant caselaw, noting that when evidence is presented to the trial court ore terms, the court’s findings of fact are presumed correct and we make all reasonable inferences supportive of the trial court’s ruling. I agree with the majority’s determination that the testimony of the sole witness was internally inconsistent and that the trial court’s determination regarding the legality of stop required the court to make a credibility choice. The majority then notes that this Court would typically resolve credibility choices in favor of the trial court as to the issue of the legality of the stop, but holds that it cannot do so in this case because it is unclear whether the trial court suppressed the evidence because the stop was invalid or because the search was illegal.

As the majority notes, no rule or statute requires trial courts to set forth fact findings when ruling on a motion to suppress. In fact, trial courts routinely rule on motions to suppress without making any specific findings of fact. For example, in Eggers v. State, 914 So.2d 883, 900 (Ala.Crim.App.2004), we stated:

“Although the trial court did not issue any findings of fact when denying Eg-gers’s motion to suppress and, thus, we do not know the reason for the trial court’s ruling, it would not have been an abuse of discretion for the trial court to find, based on the above testimony of Agent Maldonado, that Eggers did not invoke his right to counsel while in the patrol car.”

In State v. Mitchell, 722 So.2d 814, 822 (Ala.Crim.App.1998), we stated:

“Although the trial court did not make specific findings of fact in support of its decision to grant the motion to suppress, we can infer from the record that the motion was granted because of the discrepancy between the testimony of Officer Tilley and the information contained in his report and the affidavit prepared by Investigator Greene regarding where the cocaine was located at the time of the search.”

In Kaercher v. State, 554 So.2d 1143, 1150 (Ala.Crim.App.1989), we stated:

“If the trial court makes findings of fact, which is the better practice, the appellate court is required to accept them unless they are clearly erroneous. United States v. Gunn, 428 F.2d 1057 (5th Cir.1970); Simmons v. State, 428 So.2d 218 (Ala.Cr.App.1983). However, if findings are not made, as in the case here, the appellate court will uphold the ruling of the trial court if there is any reasonable view of the evidence in the record to support the ruling. United States v. Montos, 421 F.2d 215 (5th Cir.1970); People v. Massiah, 47 A.D.2d 931, 367 N.Y.S.2d 73 (1975); Green v. Commonwealth, 223 Va. 706, 292 S.E.2d 605 (1982); 4 W. LaFave, [Search and Seizure ] § 11.2(e) [ (2d ed.1987) ]; 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 20.6 (1988). We recognize that appellate courts often remand cases for findings of fact when they cannot determine from the record the basis of the trial court’s decision. See, e.g., United States v. Greely, 425 F.2d 592 (D.C.Cir.1970); People v. Burke, 60 A.D.2d 959, 401 N.Y.S.2d 887 (1978). However, here, even though we have been critical of the manner in which this issue has been presented, we find the record sufficient for us to properly review the ruling of the trial court. We note that, in the instant case, there is no conflict in the evidence. This case is not one of those cases where a defendant failed, or was denied the opportunity, to present evidence at the trial level on important issues. See, e.g., Combs v. United States, 408 U.S. 224 (1972); United States v. Hansen, 652 F.2d 1374 (10th Cir.1981).”

This case is no different from the foregoing cases, and the ruling on the motion to suppress can be, and should be, reviewed. Appellate review is not hampered here by the court’s failure to enter written findings. “If the trial court’s ruling on a suppression motion is correct for any reason it should not be reversed, Loggins v. State, 771 So.2d 1070, 1078 (Ala.Crim.App.1999), aff'd, 771 So.2d 1093 (Ala.2000).” State v. Strong, 886 So.2d 900, 900 (Ala.Crim.App.2004)(Shaw, J., concurring in the result, joined by Cobb, J.). In fact, I believe that a remand here gives the State “another bite at the apple” when, in fact, review of the proceedings now supports an affirmance.

“We note that the trial judge, as the finder of fact, determined the credibility of the witnesses. The trial court’s determination regarding credibility of witnesses is entitled to great weight on appeal. Calhoun v. State, 460 So.2d 268 (Ala.Crim.App.198[4]).” Dixon v. State, 588 So.2d 903, 907 (Ala.1991). “Even where the matter rests upon the testimony of only one witness, the trier of fact is free to accept or reject the witness’s statements. Where inferences to be drawn from the evidence are susceptible to more than one rational conclusion, the decision is for the factfin-der.” State v. Ivey, 709 So.2d 502, 505 (Ala.Crim.App.1997).

The record before us indicates that the trial court questioned the credibility and veracity of Officer Ware. The court stated, “I’m trying to figure out whether this is a real matter or whether it was a pretext to a search to start off with. That’s my concern. You know, 11 o’clock at night you see seat belts from six car lengths away, or lack of.” (R. 25.) The court later stated that the stop was “highly suspicious” based on the distance between the officer and Hargett, but acknowledged that the officer testified under oath that he had observed that Hargett was not wearing a seat belt. (R. 28.) The court and the parties also discussed whether Hargett voluntarily spit out the plastic bag or whether he had been ordered to do so. The court then took the matter under consideration and later entered a written order granting the motion to suppress.

Clearly, the trial court did not believe that the officer was testifying truthfully, and that was a credibility question for the trial court to make. Giving due deference to the trial court’s determination of credibility, I would uphold the trial court’s ruling on the motion to suppress. Based on the officer’s questionable testimony, the trial court could have correctly determined that the stop and search were illegal. Accordingly, I dissent.

      . In this regard, the State specifically argues (1) that when Sgt. Ware noticed that Hargett was unable to talk because of a large object in his mouth, he had "either reasonable suspicion or probable cause to believe that Hargett possessed evidence of crime or a weapon” which justified ordering Hargett to open his mouth (State's brief at p. 11); (2) that the discovery of the cocaine could be considered a search incident to a lawful arrest because, according to the State, Sgt. Ware had probable cause to arrest Hargett for driving under the influence of alcohol; and (3) that the discovery of the cocaine was based on probable cause plus exigent circumstances.

      . Although the State does not argue consent on appeal, see note 1, supra, consent was the State’s sole argument at the suppression hearing.


author: SHAW, Judge.

text:
    Billy Joe SELLERS v. STATE of Alabama.
    CR-04-1552.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.

      David G. Flack, Montgomery, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   SHAW, Judge.

Pursuant to a plea agreement with the State, Billy Joe Sellers pleaded guilty to violating the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975; specifically, he pleaded guilty to “establishing] a residence or any other living accommodation where a minor resides,” a violation of § 15-20-26(c), Ala.Code 1975. He stipulated to having two prior felony convictions, and, in accordance with the plea agreement, he was sentenced as a habitual offender to 10 years’ imprisonment. The sentence was split; Sellers was ordered to serve three years in confinement followed by two years on probation; and the trial court postponed the confinement portion of the sentence for one year. As part of the plea agreement with the State, Sellers expressly reserved the right to appeal the trial court’s denial of his motion to dismiss the indictment and his motion seeking to have § 15 — 20—26(c) declared unconstitutional, as well as the sufficiency of the factual basis for his plea.

At the time of the offense in this case, § 15-20-26(c) provided that “[n]o adult criminal sex offender shall establish a residence or any other living accommodation where a minor resides,” and § 15-20-26(f) provided that “[a]n adult criminal sex offender who knowingly violates the provisions of this section shall be guilty of a Class C felony.” The indictment charged that Sellers:

“after previously being convicted of Sexual Abuse I and/or Sexual Abuse II, did knowingly and/or unlawfully establish a residence or any other living accommodation, to-wit: 6629 Ashwood Circle, Montgomery, Alabama, with a minor not related by blood or marriage, in violation of Section 15-20-26 of the Code of Alabama 1975.”

(C. 8.)

For purposes of this appeal, the parties entered into a stipulation of facts regarding the circumstances of the crime. That stipulation, which included statements various people made to the police, indicates that Sellers, an adult registered sex offender, allowed a friend and her two-year-old daughter to stay at his residence the first weekend in March 2004. On Monday, March 8, 2004, Toni Rucker, an employee of the Alabama Department of Human Resources (“DHR”), served a pickup order for the child because she believed the child was not being kept in a safe environment. Rucker, a case worker assigned to the child, indicated in a statement she gave to police that she found the child playing with Sellers in Sellers’s front yard at approximately 4:00 p.m. on March 8; that Sellers told her that the child and the child’s mother had been staying with him for several days and that he “had been trying to get [them] to leave his home because he knew it wasn’t good for her to be there but that he couldn’t put them out on the streets” (C. 73); and that the child’s mother told her that she and the child had been staying with Sellers since the previous Thursday. During her interview by police, the child’s mother was asked where she was living when DHR took her daughter into custody on March 8, 2004, to which she responded, “At that time nowhere.” (C. 75.) The child’s mother indicated that she had been released from a rehabilitation clinic on Thursday, March 4, 2004; that she went to her mother’s residence where Rucker had met her and advised her that the child was supposed to stay at that location “but [that] I could take her off when I wanted to” (R. 76); and that after Rucker left, she took the child with her and eventually ended up at Sellers’s residence. The child’s mother could not remember whether she had gone directly from her mother’s house to Sellers’s house, but said that when DHR picked up her child on Monday, she had been staying with Sellers for only two days and that Sellers had slept in his truck while she and the child had slept inside the house. During the guilty-plea colloquy, the prosecutor’s factual basis for the plea was that Sellers is a registered sex offender and that he allowed a two-year-old child to live in his residence in Montgomery County for four days — from Thursday to the following Monday.

I.

Sellers contends that the trial court erred in denying his motion seeking to have § 15 — 20—26(c) declared unconstitutional because of vagueness. Specifically, he argues, § 15-20-26(c) is void for vagueness because, he says, the term “living accommodation” is not specifically defined in the statute.

“ ‘ “The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
“ ‘ “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (1951), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227-28 (1972).
“ ‘ “As the United States Supreme Court observed in Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):
“ ‘ “ ‘There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt.’
“1 “333 U.S. at 515-16, 68 S.Ct. at 670, 92 [L.Ed. at] 849-50 [citations omitted].”
‘McCrary v. State, 429 So.2d 1121, 1123-24 (Ala.Cr.App.1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983).’
“McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990).
“ ‘ “ ‘As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352 [357], 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).” ’
“Timmons v. City of Montgomery, 641 So.2d 1263, 1264 (Ala.Crim.App.1993), quoting McCorkle v. State, 446 So.2d 684, 685 (Ala.Crim.App.1983). However,
“ ‘ “ ‘[t]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for “[i]n most English words and phrases there lurk uncertainties.” Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.’ ” ’
“Sterling v. State, 701 So.2d 71, 73 (Ala.Crim.App.1997), quoting Culbreath v. State, 667 So.2d 156, 158 (Ala.Crim.App.1995), abrogated on other grounds by Hayes v. State, 717 So.2d 30 (Ala.Crim.App.1997), quoting in turn, Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).
“ ‘ “Mere difficulty of ascertaining its meaning or the fact that it is susceptible of different interpretations will not render a statute or ordinance too vague or uncertain to be enforced.” ’ Scott & Scott, Inc. v. City of Mountain Brook, 844 So.2d 577, 589 (Ala.2002), quoting City of Birmingham v. Samford, 274 Ala. 367, 372, 149 So.2d 271, 275 (1963). The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So.2d 47, 50 (1962).”

Vaughn v. State, 880 So.2d 1178, 1194-96 (Ala.Crim.App.2003).

The mere fact that a statute contains a term that is not specifically defined in the statute or statutory scheme does not automatically render the statute void for vagueness. See, e.g., Scott v. State, 917 So.2d 159 (Ala.Crim.App.2005) (holding that § 13A-12-200.il, Ala.Code 1975, that part of the Alabama Anti-Obscenity Enforcement Act that prohibits the display of genitals, etc., for entertainment purposes, was not void for vagueness, even though the terms “business establishment,” “for entertainment purposes,” and “allow” were not specifically defined in the Criminal Code); State v. Randall, 669 So.2d 223, 226 (Ala.Crim.App.1995) (holding that Alabama’s stalking law, § 13A-6-90 et seq., Ala.Code 1975, was not void for vagueness, even though the terms “repeatedly” and “series” were not specifically defined in the statute); Musgrove v. State, 519 So.2d 565, 582-83 (Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986) (holding that the kidnapping statute, § 13A-6-43, Ala.Code 1975, was not void for vagueness, even though the term “terrorize” was not specifically defined in the statute); and Farris v. State, 432 So.2d 538, 539-40 (Ala.Crim.App.1983) (holding that § 13A-7-44, Ala.Code 1975, criminal possession of explosives, was not void for vagueness, even though the term “explosives” was not specifically defined in the statute). As this Court stated in Scott, supra,

“ ‘It is well accepted that a court, in interpreting a statute, will give words used therein their “ ‘natural, plain, ordinary, and commonly understood meaning.’ ” ’ [State v.] Randall, 669 So.2d [223] at 226 [(Ala.Crim.App.1995) ], quoting Ex parte Etowah County Bd. of Educ., 584 So.2d 528, 530 (Ala.1991).
“ ‘ “Although penal statutes are to be strictly construed, courts are not required to abandon common sense. Absent any indication to the contrary, the words must be given their ordinary and normal meaning.” ’
“Musgrove [v. State], 519 So.2d [565] at 582 [ (Ala.Crim.App.), aff'd, 519 So.2d 586 (Ala.1986) ], quoting Walker v. State, 428 So.2d 139, 141 (Ala.Crim.App.1982).”

917 So.2d at 174.

In 2002, the Alabama Attorney General issued an opinion regarding the definition of the term “living accommodation” as used in § 15-20-26(b), Ala.Code 1975. Att’y Gen. Op. No. 02-175 (March 13, 2002). Although an attorney general’s opinion is not binding authority, it is persuasive. See, e.g., State v. Corley, 831 So.2d 59 (Ala.Crim.App.2001). The attorney general wrote, in pertinent part:

“Neither the [Community Notification] Act nor any other provisions of the Code of Alabama define what constitutes the establishment of ‘any other living accommodation.’ Likewise, Alabama case law is devoid of decisions addressing the meaning of this phrase. This phrase, however, must have some significance, because it is a well-established rule of statutory construction that ‘every clause in an act must be accorded a field of operation if possible.’ Ex parte Jackson, 625 So.2d 425, 428 (Ala.1992).
“ Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used ... [it must be interpreted] to mean exactly what it says.’ Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991). Webster’s Dictionary defines ‘accommodation’ in a number of ways, but when such word is used in conjunction with ‘living,’ the best definition that can be ascribed is that it is ‘lodgings’ or ‘room and board.’ Webster’s New World Dictionary 8 (3d ed.1991). Significantly, this definition, unlike that statutorily attributed to ‘residence’ in the [Community Notification] Act, does not entail any concept of ‘domicile.’[] Moreover, this definition of ‘accommodation’ does not suggest that an offender must necessarily spend a minimum amount of time at a given location for him ■ to establish ‘any other living accommodation.’ Rather, the plain and ordinary meaning of ‘any other living accommodation’ is simply that it is a place where someone lodges, regardless of the number of days the person remains there.”

Att’y Gem's Op., No. 02-175, at p. 3. We agree.

“Living” is defined, in relevant part, as “suited for living” such as “the [living] area.” Merriam-Webster’s Collegiate Dictionary 728 (11th ed.2003). Black’s Law Dictionary 16 (8th ed.2004), defines “accommodation,” in part, as “[a] convenience supplied by someone; esp., lodging and food.” Merriam-Webster’s Collegiate Dictionary 8 (11th ed.2003), defines “accommodation,” in part, as “something supplied for convenience or to satisfy a need [such as] lodging, food, and services or traveling space and related services — usu[ally] used in [the plural]” such as “tourist [accommo-dationjs on the boat” or “overnight [accommodations.” “Lodging” is defined in Mer-riamr-Webster’s Collegiate Dictionary 731 (11th ed.2003), as “a place to live,” “sleeping accommodations,” “a temporary place to stay,” and “a room in the house of another used as a residence.”

When the ordinary and commonly understood meaning of the terms “living” and “accommodation” are combined and applied to § 15-20-26(c) and when that statute is read in context with other provisions of the Community Notification Act, especially the provision explaining the purpose behind the Act, see § 15-20-20.1, it is clear that “living accommodation” means any overnight lodging, either temporary or permanent. Section 15-20-26(c) is sufficiently definitive in its language that ordinary people can understand what conduct is prohibited. Therefore, § 15-20-26(c) is not unconstitutionally vague, and the trial court properly denied Sellers’s motion to declare it so.

II.

Sellers contends that the trial court erred in denying his motion to dismiss the indictment because, he says, the indictment failed to allege an essential element of the offense. Specifically, he argues that the indictment failed to allege that he had established a residence or other living accommodation “where a minor resides,” which he claims is an essential element of the offense under § 15-20-26(c), but instead alleged that he had established a residence or other living accommodation “with a minor,” which he claims is not synonymous with “where a minor resides,” and that the trial court erred in allowing the State to amend the indictment to comply with the statutory language.

At the hearing on Sellers’s motion to dismiss, the State, after initially arguing that the indictment was valid, moved to amend the indictment by replacing the phrase “with a minor not related by blood or marriage” contained in the indictment with the phrase “where a minor not related by blood or marriage resided.” (R. 14.) Over Sellers’s objection, the trial court granted the State’s motion and amended the indictment.

Rule 13.5(a), Ala.R.Crim.P., provides, in pertinent part, that “[t]he court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.” This Court has held that it is proper for a trial court to amend an indictment to add an essential element of an offense that has been omitted from an indictment so long as the indictment otherwise charges an offense. See Hampton v. State, 815 So.2d 571 (Ala.Crim.App.2001) (holding that an indictment charging a violation of § 13A-11-200, Ala.Code 1975, that failed to charge that the defendant acted willfully or knowingly, which § 13A-11-203 specifically designated as an essential element of an offense under § 13A-11-200, but which otherwise validly charged the offense defined by § 13A-11-200, was properly amended to add the statutory mens rea element). See also Carruth v. State, 927 So.2d 866 (Ala.Crim.App.2005) (holding that an indictment that fails to charge a mens rea element but otherwise validly charges a crime may be amended to add the mens rea element).

Other than the omission of the phrase “where a minor resides,” the indictment in this case charged an offense under § 15-20 — 26(c); thus, the amendment to the indictment did not charge a new or different offense. In addition, the record indicates that Sellers was fully aware of the nature of the charge against him and nothing in the record indicates that Sellers’s substantial rights were prejudiced by the amendment. Indeed, Sellers did not argue to the trial court, nor does he argue on appeal, that he was prejudiced in any way by the amendment. Therefore, the amendment to the indictment was proper under Rule 13.5.

Accordingly, the trial court properly denied Sellers’s motion to dismiss the indictment.

III.

Sellers also contends that the factual basis was insufficient to support his plea of guilty. Specifically, he argues that the trial court’s interpretation of the term “living accommodation” based on the attorney general’s 2002 opinion, was too broad and that “living accommodation” must be interpreted to mean “a permanent change of living conditions” and not merely an overnight stay. (Sellers’s brief at p. 15.) If the term “living accommodation” is construed as a permanent living arrangement, Sellers concludes, the prosecutor’s stated factual basis for the plea as well as the stipulation of facts by the parties was not sufficient to establish that he violated § 15-20-26(c).

“Rule 14.4(b), Ala.R.Crim.P., provides that ‘[notwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without being satisfied that there is a factual basis for the plea.’ ‘The purpose of requiring the trial judge to determine that there is a factual basis for the plea “is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.” ’ Alderman v. State, 615 So.2d 640, 647 (Ala.Crim.App.1992), quoting United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988), remand order withdrawn and plea vacated on rehearing, 866 F.2d 1301 (10th Cir.1989) (en banc). ‘ “The only factual basis required for a guilty plea is that which will satisfy the court that the appellant knows what he is pleading guilty to.” ’ Alderman, 615 So.2d at 647, quoting Garner v. State, 455 So.2d 939, 940 (Ala.Crim.App.1984).”

Scott, 917 So.2d at 165.

Based on our review of the record, it is clear that Sellers was aware of the nature and elements of the offense to which he was pleading guilty. Before he entered his plea, an extensive hearing was held on Sellers’s motions to dismiss the indictment and to have the statute declared unconstitutional, during which the facts of the case, as well as the definition of the term “living accommodation,” were discussed. As part of the plea agreement, the parties entered into a stipulation of facts and the prosecutor stated a factual basis for the plea during the guilty-plea colloquy. The facts as stipulated to by the parties indicate that Sellers allowed a minor to stay at his residence for several consecutive days and nights. Although Sellers argues that the trial court incorrectly interpreted the term “living accommodation,” as we held in Part I of this opinion the ordinary and common meaning of the term “living accommodation” is any overnight lodging, either temporary or permanent, and the trial court properly used this definition. Thus, there was a sufficient factual basis for Sellers’s guilty plea.

Sellers also contends in his brief on appeal that the factual basis was insufficient to establish that he had established a residence or other living accommodation “where a minor resides,” which, he says, should be construed to mean the permanent residence of the minor. According to Sellers, because the minor was only temporarily staying at his residence and he did not move into the minor’s residence, the factual basis was not sufficient to establish that he had violated § 15-20-26(c). However, Sellers did not present this specific argument to the trial court. Although Sellers challenged the factual basis for his plea in the trial court, he did so solely on the ground that the trial court’s interpretation of the term “living accommodation” was incorrect. Indeed, when asked during the guilty-plea colloquy whether the prosecutor’s stated factual basis for the plea would be sufficient to sustain a conviction for violating § 15-20-26(c), Sellers’s counsel conceded that it would be sufficient “subject to the statute being constitutional” and “give[n] the Attorney General’s definition of living accommodations.” (R. 11.) “Review on appeal is limited to review of questions properly and timely raised at trial.” Newsome v. State, 570 So.2d 703, 716 (Ala.Crim.App.1989). “The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.” Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). Therefore, because this issue was never presented to the trial court, it is not properly before this Court for review.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . Section 15-20-26(c) contains additional provisions with respect to situations where the adult sex offender is the minor’s parent, grandparent, or stepparent. However, none of those provisions are applicable in this case.

      . The Community Notification Act was amended effective October 1, 2005; that amendment, among other things, redesignat-ed what was subsection (f) as subsection (h).

      .Although the copy of the stipulation contained in the record is not signed by the State, the State acknowledges in its brief that the stipulation was jointly made.

      . That section contains identical language to the language in § 15-20-26(c); it provides that "[ujnless otherwise exempted by law, no adult criminal sex offender shall establish a residence or any other living accommodation within 1,000 feet of the property on which any of his or her former victims, or the victims' immediate family members reside.” (Emphasis added.)

      . Section 15-20-23(b), Ala.Code 1975, provides, in pertinent part:
      “(b) Notwithstanding other provisions of law regarding establishment of residence, an adult criminal sex offender shall be deemed to have established a new residence in any of the following circumstances:
      "(1) Whenever that adult criminal sex offender is domiciled for three consecutive days or more.
      “(2) Whenever that adult criminal sex offender is domiciled following his or her release, regardless of whether that criminal sex offender has been domiciled at the same location prior to the time of conviction.”


author: McMILLAN, Presiding Judge.

text:
    STATE v. Lakisha FOSTER.
    CR-04-0500.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.
    Thomas Fields, Montgomery; and Jacqueline Mixon, Montgomery, for appellee.
   McMILLAN, Presiding Judge.

This is a pretrial appeal by the State of Alabama pursuant to Rule 15.7, Ala. R.Crim. P., from an order of the Montgomery Circuit Court granting the motion of the appellee, Lakisha Foster, to dismiss her indictment. Foster was charged in a three-count indictment with first-degree criminal mischief, harassment, and third-degree criminal trespass. Her codefen-dant and husband, Frederick Foster, was tried and found guilty of second-degree criminal mischief and third-degree criminal trespass. At the conclusion of Frederick Foster’s trial, Lakisha Foster made an oral motion to dismiss her indictment, which Judge Johnny Hardwick granted on December 1, 2004. The order granting her motion reads, in relevant part:

“This Matter came before the Court on December 1, 2004, on defendant’s oral motion to dismiss. After consideration of the facts elicited from the trial of the co-defendant Frederick Foster CC-03-1443-JH, this Court finds that the motion is due to be granted.
“THEREFORE it is hereby ORDERED ADJUDGED AND DECREED that this case be dismissed because the State of Alabama can prove no set of facts upon which a conviction could be based.”

Rule 13.5(c)(1), Ala. R.Crim. P., provides:

“A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.”

The State is correct in its contention that Rule 13.5(c)(1) does not provide for the dismissal of an indictment based on the insufficiency of the evidence or, as in this case, a possible lack of evidence. See State v. Edwards, 590 So.2d 379 (Ala.Crim.App.1991)(establishment of the corpus delicti requires proof of facts by the State so entwined with the merits of the case that a decision as to whether it had been proved should not be made before trial but should be postponed until trial); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005)(trial court cannot dismiss the indictment based on a lack of evidence).

Accordingly, the order of the trial court granting Lakisha Foster’s motion to dismiss her indictment is reversed and the cause is remanded.

REVERSED AND REMANDED.

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


text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.853(D).
    No. SC05-1702.
    Supreme Court of Florida.
    Sept. 29, 2005.
   The Florida Bar Criminal Procedure Rules Committee (Committee) has submitted to the Court a report recommending that the Court adopt an emergency-amendment to Florida Rule of Criminal Procedure 3.853, Motion For Postconviction DNA Testing, eliminating the subdivision (d)(1) time limitations for filing a motion for postconviction DNA testing. In order to allow the Court sufficient time to consider the Committee’s report and to seek and consider comments concerning the proposed amendment, the Court amends, on an interim basis, rule 3.853(d)(1) as follows:

(d) Time Limitations.

(1) The motion for postconviction DNA testing must be filed:

(A) Within 4 years following the date that the judgment and sentence in the case became final if no direct appeal was taken; within 4 years following the date the conviction was affirmed on direct appeal if an appeal was taken; within 4 years following the date collateral counsel was appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case in which the death penalty was imposed; or by October !, 2005JuIy 1, 2006, whichever occurs later; or

(B) At any time, if the facts on which the petition is predicated were unknown to the petitioner or the movant’s attorney and could not have been ascertained by the exercise of due diligence.

New language is indicated by underscoring; deletions are indicated by struck-through type. The interim amendment shall become effective immediately upon the release of this order.

The Court invites all interested persons to comment on the Committee’s proposed amendment, which is reproduced online at http://www.floridasupremecourt.org/deci-sions/proposed.shtml. An original and nine paper copies of all comments must be filed with the Court on or before November 15, 2005, with a certificate of service verifying that a copy has been served on the committee chair, George E. Tragos, 600 Cleveland Street, Suite 700, Clearwater, Florida 33755, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


author: PER CURIAM.

text:
    Neil NAVARRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2769.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 14, 2006.
    Neil Navarro, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for Appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Charles Edward JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-3001.
    District Court of Appeal of Florida, Third District.
    July 19, 2006.
    Rehearing Denied Aug. 31, 2006.
    Charles Edward Jones, in proper person.
    Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State 923 So.2d 1199 (Fla. 3d DCA 2006); Quintanilla v. State, 913 So.2d 687 (Fla. 3d DCA 2005).


author: COPE, C.J.

text:
    Ben Arthur SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1681.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Ben Arthur Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michele Samaroo, Assistant Attorney General, for appellee.
    Before COPE, C.J., and FLETCHER and ROTHENBERG, JJ.
   COPE, C.J.

Ben Arthur Smith appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

Defendant-appellant Smith was convicted of possession of a firearm by a convicted felon. The offense date was May 15, 1997.

At sentencing the State sought to qualify the defendant as a habitual violent felony offender (“HVFO”). An issue arose regarding whether the defendant’s 1997 offense was committed within five years of his release from prison on his predicate offense. During the hearing defendant’s counsel stated: “I went to see my client yesterday, and according to my discussions with my client, this crime did occur within five years of his release from prison.”

Based on that concession, the trial court ruled that the release from prison occurred within the statutorily-required five year time period prior to the current offense. The court also found that the other HVFO criteria had been met. The court ruled that the defendant qualified as an HVFO and sentenced him as such.

In his Rule 3.800(a) motion defendant claims his sentence is illegal because the trial court record does not contain “affirmative record evidence to prove defendant, Ben Smith’s, actual release date” for his prior offenses. Notably absent from defendant’s motion is any affirmative allegation that his release from prison occurred more than five years prior to his 1997 offense.

Under the applicable version of the habitual offender statute, the 1997 offense had to be committed “within 5 years of the defendant’s release from a prison sentence _” § 775.084(l)(b)2.b., Fla. Stat. (Supp. 1996). The trial court made the required finding. Defendant argues, however, that his sentence is illegal due to lack of eviden-tiary support for the finding. Defendant is not correct. As quoted above, defense counsel informed the court that the defendant conceded the 1997 offense was within five years of his release from prison. A party can stipulate to qualification as a habitual offender, where he or she in fact qualifies. See Greenlee v. State, 591 So.2d 310 (Fla. 2d DCA 1991); Jefferson v. State, 571 So.2d 70 (Fla. 1st DCA 1990).

In order to make a facially sufficient attack on his HVFO adjudications, the defendant would have to allege that his 1997 offense was committed more than five years after his release from prison. See Macaluso v. State, 912 So.2d 694, 695 (Fla. 2d DCA 2005); see also Bover v. State, 797 So.2d 1246, 1251 (Fla.2001). The defendant has made no such allegation.

The defendant relies on cases in which a defendant stipulated that he was a habitual offender but the stipulation later turned out to be incorrect. “A defendant cannot stipulate to habitual offender sentencing ‘when the underlying substantive offenses necessary for such a sentence do not exist.’ ” Tucker v. State, 864 So.2d 580, 581 (Fla. 2d DCA 2004) (quoting Lee v. State, 731 So.2d 71, 73 (Fla. 2d DCA 1999)). Those cases do not apply here.

The defendant also states that when he was released from prison he was erroneously included in the control release program. The defendant’s counsel explained at the sentencing hearing that this administrative error was later corrected. However, that error has no bearing on the issue before us. For habitualization purposes the relevant question was whether the defendant committed the 1997 offense within five years of his release from prison. The defendant’s stipulation covered this issue, and the defendant’s motion shows no basis for relief.

Affirmed.


text:
    Enrique CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2218.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 2006.
    Enrique Castro, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michelle Samaroo, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTEÑAS, J.J.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See id.; R. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for a hearing or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: THOMPSON, J.

text:
    Gregory WOODFAULK, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3055.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.

      Gregory Woodfaulk, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Gregory Woodfaulk challenges the trial court’s order denying his petition for an accelerated hearing and immediate compliance with his public records request from the state attorney’s office pursuant to section 119.11, Florida Statutes (2005). Because Woodfaulk is entitled to an accelerated hearing, we reverse and remand.

Woodfaulk is currently serving a twenty-year sentence following his conviction for robbery with a firearm (with a mask) and burglary of a structure with assault or battery with a firearm. This court affirmed per curiam his direct appeal, Woodfaulk v. State, 816 So.2d 647 (Fla. 5th DCA 2002) (table), and the denial of his 3.850 motion for postconviction relief. Woodfaulk v. State, 857 So.2d 897 (Fla. 5th DCA 2003) (table).

Woodfaulk alleged in his petition for an accelerated hearing pursuant to section 119.11 that he received no response to his two public records requests in March or April 2005 and in May 2005 requesting his records from the state attorney’s office in case number CR00-2125, the underlying criminal case. He also alleged that he made no copies of the earlier requests, but stated in an attached unsigned and unno-tarized “affidavit” that he offered to pay for the duplication cost of the records. The court denied his petition, ruling that Woodfaulk was not being denied his records, but that he was not entitled to state-funded copies to assist him in preparing any collateral motions or for any other reason.

The State notes that Woodfaulk alleged for the first time on appeal that he was not requesting a free copy, but was willing to pay for any copies. However, Woodfaulk’s affidavit, albeit unsworn and unsigned, stated that he made a proper request and offer to pay for the cost of the records. The affidavit is part of his petition filed with the trial court. We review a trial court’s denial of a public records request for an abuse of discretion. See Glock v. Moore, 776 So.2d 243, 254 (Fla.2001).

Prisoners are entitled to disclosure of public records related to their convictions under chapter 119, Florida Statutes. Smith v. State, 696 So.2d 814, 815 (Fla. 2d DCA 1997). The custodian of the records for the state attorney’s office is responsible, in this case, for providing records not exempt under section 119.07(3) upon Woodfaulk’s proper request and payment in accordance with the provisions of section 119.07. Costs are either prescribed by statute or for the actual cost of duplication. § 119.07(l)(a).

The trial court correctly ruled that Woodfaulk has no right to free copies of the state attorney’s public records. Indigent prisoners may obtain free copies and services for a plenary appeal, but there is no provision to obtain them thereafter. Ridge v. Adams, 643 So.2d 116, 117 (Fla. 5th DCA 1994). There is no right to free transcripts for use in preparation of a postconviction motion. Carr v. State, 495 So.2d 282, 282 (Fla. 2d DCA 1986). Rather, a prisoner seeking postconviction relief must first prepare and file his motion before he may secure those portions of the record relevant to the motion. Id. A prisoner seeking copies of the state attorney’s criminal investigation file pursuant to the Public Records Act is not entitled to copies free of charge. Roesch v. State, 633 So.2d 1, 2-3 (Fla.1993). Furthermore, Wood-faulk is not being deprived of any constitutional right. Id. at 3.

Florida has a strong public policy in favor of open government as the Fourth District expressed in Salvador v. Fennelly, 593 So.2d 1091, 1094 (Fla. 4th DCA 1992), stating:

That policy has received clear recognition in both the legislature and the courts. The legislature has also recognized that time can sometimes be an important element in the right of access to public records. Hence, the provision for early hearings on public records cases.

Section 119.11 places no specific requirements on the party requesting the record to obtain an accelerated hearing except the filing of an action to enforce the public records law. It states: “Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases.” § 119.11(1). The statute does not provide for a summary procedure. Nor does it require that the petitioner attach copies of any earlier requests.

The court abused its discretion in denying an immediate hearing on Woodfaulk’s request. Woodfaulk’s petition triggered the requirement that the court set an immediate hearing. § 119.11(1). Woodfaulk cannot factually demonstrate that he made an offer to pay for the record copies in his two earlier requests, but he alleged he made such an offer. Whether Woodfaulk’s statement in his affidavit, unsigned and unnotarized, is a proper request is a question for the trial court.

In this case, the state attorney allegedly did not respond to Woodfaulk’s first two requests that Woodfaulk himself does not document. Whether they were proper requests is an open question. Section 119.12 provides for an attorney’s fees sanction for an agency’s unlawful refusal to permit a public record to be copied. However, only when the court determines that the agency’s refusal to have been unreasonable is the attorney’s fee sanction mandated. § 119.12. Whether the agency’s refusal to permit public records to be copied or inspected was unreasonable so as to justify an award of attorney’s fees against the agency is a fact question for the trial court and will not be disturbed on appeal unless the trial court’s finding is unsupported by the evidence. News-Press Publ’g Co. v. Gadd, 432 So.2d 689, 689 (Fla. 2d DCA 1983). Only a hearing will permit the trial court to make this determination.

Accordingly, we reverse and remand with instructions that the trial court schedule a hearing on Woodfaulk’s petition to order an accelerated hearing and immediate compliance with his public records request.

REVERSED and REMANDED with instructions.

MONACO and EVANDER, JJ., concur.


author: PALMER, J.

text:
    Daren J. MICHEL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-903.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Daren J. Michel, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, For Ap-pellee.
   PALMER, J.

Daren J. Michel (defendant) appeals the trial court’s summary denial of his rule 3.800(a) motion to correct illegal sentence. Concluding that the defendant’s sentences as a habitual felony offender are illegal, we reverse.

The defendant was sentenced to a term of 15 years of incarceration followed by 10 years of probation on his conviction for possessing a firearm by a convicted felon. He was sentenced as both a habitual felony offender (HFO) and a prison releasee reoffender (PRR). In two separate additional cases, the defendant was sentenced to concurrent terms of 15 years of incarceration followed by 10 years of probation on his convictions for robbery, again being sentenced as both an HFO and a PRR in each case.

The defendant filed a rule 3.800 motion challenging the trial court’s imposition of equal terms of incarceration as a PRR and an HFO with respect to each of his three sentences. He cited to section 775.082(9)(c) of Florida’s Prison Releasee Reoffender statute which states: “Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to [Florida’s HFO statute] or any other provision of law.” (Emphasis added). The defendant contended that his sentences were illegal because the term of incarceration imposed as an HFO in each of his cases did not impose a greater sentence of incarceration than the 15 year mandatory minimum sentence of incarceration imposed in each case pursuant to the PRR statute. The trial court rejected this argument, holding that the defendant was sentenced to the 15 year prison sentence as a PRR and to 15 years plus ten years probation as an HFO and, accordingly, the HFO sentence is “greater” and thus legal. We disagree. Based on the specific language of section 775.082(9)(c), the sentences under review are illegal.

The issue in the instant appeal is whether the trial court’s addition of 10 years of probation to the 15 year HFO sentence in each case constituted “a greater sentence of incarceration” so that the defendant was legally sentenced as both a PRR and an HFO. In Grant v. State, 770 So.2d 655 (Fla.2000), the Supreme Court stated:

While imposition of equal concurrent sentences thus did not violate double jeopardy principles, it did, nonetheless, violate the express provisions of the Act. As recognized by the First District in Walls, 765 So.2d at 734 [Walls v. State, 765 So.2d 733 (Fla. 1st DCA 2000)], because “section 775.082(8)(c) only authorizes the court to deviate from the [Act’s] sentencing scheme to impose a greater sentence of incarceration,” a trial court is “without authority to sentence [a defendant to an equal sentence] under the habitual felony offender statute,” even where such sentence is imposed concurrently with the PRR sentence. Thus, the trial court erred in imposing two concurrent, equal sentences in this case, not because such sentencing violated double jeopardy, but because it is not authorized by the Act.

Id., at 659.

Prior to the Supreme Court’s decision in Grant, our court addressed a factual scenario similar to the instant case in Lewis v. State, 751 So.2d 106 (Fla. 5th DCA 1999), (“Lewis /”). In Lewis I, the defendant was sentenced to a 15 year mandatory minimum prison term as a PRR concurrent with a 10 year prison term, followed by 10 years of probation, as a habitual violent felony offender (HVFO). In entering its decision, the Fifth District interpreted section 775.082(8)(c) as authorizing “the State to seek whichever sentence may imprison the defendant longer,” but not as allowing dual sentences as both a PRR and an HVFO. Id. at 107. The Fifth District vacated the defendant’s HVFO sentence concluding: “Because the PRR sentence is the longer of the two incarceration alternatives, it is the one that must be imposed.” Id.

The Supreme Court reviewed the Fifth District’s decision in Lewis I based on conflict with the Supreme Court’s decision in Grant See Lewis v. State, 789 So.2d 974 (Fla.2001) (“Lems II”). The Supreme Court held that the Fifth District’s interpretation of subsection (8)(c) of the Prison Releasee Reoffender Act was contrary to the Supreme Court’s decision in Grant:

To the extent that [the district’s ruling] implies that dual sentences under the Act and another recidivist statute are never allowed, and to the extent that it implies that a sentence under the Act must always be the longest in duration of any sentence imposed, Grant is controlling. As we stated in Grant, “section 775.082(8)(c) only authorizes [a sentencing] court to deviate from the [Act’s] sentencing scheme to impose a greater sentence of incarceration.” Grant, 770 So.2d at 659 (emphasis added).

Id. Notwithstanding this clarification of the law, the Supreme Court approved the result in Lewis I and held that this Court was correct in “vacating the lesser sentence.” Id.

The decisions by the Florida Supreme Court in Gmnt and Lewis II clarify the law with respect to concurrent sentences as a PRR and an HFO by holding that a concurrent HFO sentence which imposes a period of incarceration equal to or less than the PRR mandatory minimum constitutes an illegal sentence. Furthermore, Lewis II implicitly holds that an HFO sentence which includes a period of probation following an incarcerative term will not be treated as adding together the probationary term with the incarcerative term for purposes of creating “a greater sentence of incarceration” than the period of incarceration imposed under the Prison Releasee Reoffender Act. The focus is only on the periods of incarceration imposed as a PRR and an HFO for a given charge.

Accordingly, the 10 year probationary term which follows the defendant’s 15 year HFO prison sentence, is not a “sentence of incarceration,” and therefore, cannot be added to the 15 year HFO prison term in order to create “a greater sentence of incarceration” such that defendant’s sentencing as an HFO and a PRR can stand. See § 775.082(9)(c), Fla. Stat. (2005). As such, we reverse the trial court’s denial of the defendant’s rule 3.800(a) motion and strike the defendant’s HFO sentences, leaving only the PRR sentences in effect.

REVERSED.

GRIFFIN and SAWAYA, JJ., concur.

      . See Fla. R.Crim. P. 3.800(a).

      . See § 775.084, Fla. Stat. (2005).

      . See § 775.082, Fla. Stal. (2005).


text:
    Michael Allen DRIGGERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3554.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See § 812.022(2), Fla. Stat. (2001) (providing that “[pjroof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen”).

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Bruce McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1936.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

After being convicted at trial of aggravated fleeing and eluding, Bruce McCray filed a facially sufficient rule 3.850 postcon-viction motion and an evidentiary hearing was held. Following that hearing, the trial court denied relief. We affirm.

Under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on a claim that counsel provided constitutionally ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are “so serious that counsel was not functioning as the single ‘counsel’ guaranteed defendant by the Sixth Amendment.” Further, the defendant must demonstrate prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Having carefully reviewed the record, we find the trial court applied the correct rule of law and that competent substantial evidence exists to support the conclusions reached by the court. Accordingly, we affirm the denial of Mr. McCray’s motion for postconviction relief.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


author: LaROSE, Judge.

text:
    David GREEN and Deronda Green, Appellants, v. APAC-FLORIDA, INC., a foreign corporation, Appellee.
    No. 2D05-1569.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.

      Culmo & Culmo, P.A., Coral Gables, and Kimberly L. Boldt of Boldt Law Firm, Boca Raton, for Appellants.
    Valeria Hendricks of Davis & Harmon, P.A., Tampa, and Peter P. Murnaghan of Murnaghan & Ferguson, P.A., Tampa, for Appellee.
   LaROSE, Judge.

David and Deronda Green appeal a final summary judgment entered in favor of APAC-Florida, Inc. (APAC). The trial court concluded that APAC was Mr. Green’s statutory employer and, thus, immune from suit under the workers’ compensation statute. See §§ 440.10, .11, Fla. Stat. (2003). Because genuine issues of material fact remain for trial, we reverse.

Mr. Green was a truck driver for Florida Tank Lines, Inc. (FTL). FTL provides trucking and hauling services. In 2003, it entered into a “Renewable Trucking Agreement” with APAC. Under the agreement, FTL, as an independent contractor, would transport liquid asphalt for APAC. APAC manufactures and sells asphalt. It also performs highway paving jobs. In June 2002, APAC contracted with the Florida Department of Transportation (FDOT) to mill, widen, and resurface a section of a state road in Glades County.

In April 2003, at APAC’s direction, FTL dispatched Mr. Green to deliver liquid asphalt to APAC’s Okeechobee plant. APAC claims that the liquid asphalt was for use on the FDOT project. According to the Greens, APAC manufactured asphalt for use on the FDOT project as well as for resale from its plant to paving contractors and others.

Mr. Green picked up a load of liquid asphalt from APAC’s Tampa supplier. He received a bill of lading that referenced the FDOT project. He hauled the liquid asphalt to APAC’s Okeechobee plant for offloading into storage tanks. Thereafter, APAC would use the liquid asphalt in its manufacturing process to produce a final asphalt product meeting FDOT specifications. Because it did not have suitable equipment, FTL did not haul the final asphalt product to the FDOT job site. APAC contracted other haulers for that service.

In the course of off-loading the liquid asphalt, Mr. Green was injured. Subsequently, he and his wife sued APAC. APAC moved for entry of summary judgment. Claiming to be Mr. Green’s statutory employer, APAC argued that it was entitled to workers’ compensation immunity-

Under the workers’ compensation statute, an employer “shall be liable for, and shall secure, the payment” of benefits prescribed under the statute. § 440.10(l)(a). Similarly, “[i]n case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business ... and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees .... ” § 440.10(l)(b). By providing workers’ compensation benefits to injured workers, the employer, except as otherwise provided by the workers’ compensation statute, avoids tort liability. Indeed, “[t]he liability of an employer ... shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee....” § 440.11(1).

A statutory employer immune from suit is a contractor who “sublets any part or parts of his or her contract work to a subcontractor or subcontractors.” § 440.10(l)(b). Accordingly, before a party may be characterized as a statutory employer, “there must be a contractual obligation on the part of the contractor, a portion of which he sublets to another.” Cork v. Gable, 340 So.2d 487, 489 (Fla. 2d DCA 1976). APAC’s contract with FDOT did not require APAC to manufacture the specific asphalt used on the road project. Yet, APAC was obligated to resurface the road in accordance with FDOT specifications. Implicit in that obligation was APAC’s duty to provide the necessary asphalt; it chose to manufacture the product itself and deliver it to the jobsite.

The Greens opposed APAC’s summary judgment motion. They argued that factual issues precluded a conclusion that APAC was Mr. Green’s statutory employer. The trial court rejected this argument and concluded that a contractual obligation between APAC and FDOT was “passed on to [FTL],” Mr. Green’s direct employer.

As the summary judgment movant, APAC must show conclusively the absence of any genuine issue of material fact. Bruno v. Destiny Transp., Inc., 921 So.2d 836, 839 (Fla. 2d DCA 2006) (citing Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)); In re Githens, 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). Our review is de novo. We view every possible inference in favor of the Greens. Githens, 928 So.2d at 1274. The record compels us to conclude that genuine issues of material fact remain as to whether APAC was Mr. Green’s statutory employer. APAC has not demonstrated conclusively what contractual obligation it had with FDOT that it delegated to FTL. See Derogatis v. Fawcett Memorial Hosp., 892 So.2d 1079, 1083 (Fla. 2d DCA 2004) (holding contractor required to show that it incurred contractual obligation to third party, part of which obligation it delegated or sublet to subcontractor whose employee was injured); Cork, 340 So.2d at 489 (holding that merely incidental obligation to perform work did not constitute the necessary contractual obligation for workers’ compensation immunity).

The record reflects that FTL did not deliver a final product to the FDOT job-site. It delivered a component to APAC’s plant for further processing by APAC. The final asphalt product was delivered to the job site by others. The record also reflects a dispute as to whether APAC sold asphalt for its own account during the relevant period. Based on the record before us, the genuine issues of material fact remaining for trial include a determination of the nature and scope of any contractual obligation that APAC sublet to FTL, whether and the extent to which APAC’s Okeechobee plant was used as a storage facility for the FDOT project, and whether APAC was manufacturing asphalt for customers other than FDOT. See Cuero v. Ryland Group, Inc., 849 So.2d 326, 328-29 (Fla. 2d DCA 2003) (finding developer had no contract, any portion of which it delegated, within meaning of workers’ compensation statute). At its core, the central factual dispute is whether there was a sufficient nexus between FTL’s services for APAC and the FDOT project to support a finding that APAC was Mr. Green’s statutory employer. Given these unresolved issues, we reverse the trial court’s grant of final summary judgment to APAC. Bruno, 921 So.2d at 840; Githens, 928 So.2d at 1275; see also Smalley Transp. Co. v. Marks, Gray, Conroy & Gibbs, 649 So.2d 257, 259-60 (Fla. 1st DCA 1994).

Reversed.

WHATLEY and SILBERMAN, JJ., Concur.


text:
    Michael S. MAHAN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D06-154.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Michael S. Mahan, Melbourne, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Michael S. Mahan appeals a final order of the Unemployment Appeals Commission affirming the decision of an unemployment compensation appeals referee determining that Mr. Mahan was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with his work. We affirm.

We review the adjudicative findings arising from an unemployment compensation proceeding to determine if they are supported by competent, substantial evidence. See Miller v. Unemployment Appeals Comm’n, 690 So.2d 752 (Fla. 5th DCA 1997). We do not substitute our judgment for that of the agency with respect to the weight of the evidence on disputed facts. See Rosmond v. Unemployment Appeals Comm’n, 651 So.2d 233, 234 (Fla. 5th DCA 1995). The appeals referee heard and evaluated the testimony presented and believed the evidence presented by the employer. As credibility is a matter within the discretion of the finder of fact, and as the findings in this case are supported by the requisite competent, substantial evidence, we find no basis to disturb the final order under review.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Marvin SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4141.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    James S. Purdy, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Codie v. State, 313 So.2d 754 (Fla.1975) (for the proposition that when a trial court rules upon a motion for judgment of acquittal, all facts introduced into evidence are considered admitted, and the trial court must draw every conclusion and inference from them in favor of the State).

SAWAYA, ORFINGER and MONACO, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellant, v. SCHOOL BOARD OF OSCEOLA COUNTY, et al., Appellee.
    No. 5D05-4400.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellant.
    Usher L. Brown, Erin J. O’Leary and Joseph E. Blitch of Brown, Garganese, Weiss D’Agresta, P.A., Orlando, for Appel-lee.
   PER CURIAM.

The Department of Children and Family Services appeals the trial court’s denial of its motion to change venue to Leon County in accordance with the home venue privilege. See Fla. Dep’t of Children and Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004). Because we conclude that the trial court properly applied the “Sword Wielder” exception to this privilege, we affirm the determination that venue is properly laid in Osceola County. See Fla. Pub. Serv. Comm’n v. Triple A Enters., Inc., 387 So.2d 940 (Fla.1980); Nyberg v. Snover, 604 So.2d 894 (Fla. 1st DCA 1992).

AFFIRMED.

THOMPSON, MONACO and EVANDER, JJ., concur.


text:
    Scott REISER, Appellant, v. WACHOVIA CORPORATION, d/b/a Wachovia Bank, N.A., Appellee.
    No. 5D06-279.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Scott Reiser, Daytona Beach, Pro Se.
    W. Douglas Childs and Davis C. Love, of Bullock, Childs, Pendley & Reed, P.A., Jacksonville, for Appellee.
   PER CURIAM.

After completing his transaction at a Wachovia Bank, Scott Reiser was confronted in the bank’s lobby by four hooded, armed men. One of the armed gunmen held a rifle at Mr. Reiser’s head and ordered the bank’s personnel to open the vault, lest Mr. Reiser be killed. The bank employees complied, and after filling the bag with money, all four bank robbers fled the scene. Understandably traumatized, Mr. Reiser brought suit against the bank, claiming he sustained psychological injuries as a result of the robbery that could have been prevented had the bank not been negligent in providing security. The trial court entered summary judgment in favor of the bank and Mr. Reiser appeals. We affirm because Florida does not recognize a cause of action for negligent infliction of emotional distress, at least in the absence of a physical impact or injury. See Rivers v. Grimsley Oil Co., Inc., 842 So.2d 975 (Fla. 2d DCA 2003); Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997). While we can appreciate the emotional trauma that Mr. Reiser sustained as a result of this event, it is one that is not compensable under Florida law.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Polly NELSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D06-404.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Polly Nelson, Stuart, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The appellant, Polly Nelson, seeks review of the determination of the Unemployment Appeals Commission affirming the determination of the referee to the effect that Ms. Nelson resigned from her job without good cause attributable to the employer, and was therefore disqualified from receiving unemployment compensation benefits. See § 443.101(l)(a), Fla. Stat. (2005). We have been shown no legal basis to reject the determinations of the Commission. Accordingly, we affirm.

AFFIRMED.

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


text:
    Marsha TANNER, et al., Petitioner, v. FLAGLER COUNTY, Florida, et al., Respondent.
    No. 5D06-481.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Lesley Blackner of Blackner, Stone & Associates, Palm Beach, and Dennis Bayer, Flagler Beach, for Petitioner.
    Carl E. Kern, Flagler County Attorney and Lisa Z. Bosch, Flagler County Deputy Attorney, Bunnell, for Respondent, Flagler County.
    C. Allen Watts, Daytona Beach, for Respondent, The Von Bulow Corporation.
   THOMPSON, J.

This petition for writ of certiorari is DENIED as the petitioners have failed to establish that the lower court departed from the essential requirements of the law or denied them procedural due process. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); Haines City Community Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995); Foti v. Citrus County, 860 So.2d 20 (Fla. 5th DCA 2003).

MONACO and LAWSON, JJ., concur.


author: MONACO, J.

text:
    Brian K. BOOSKA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2195.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 2006.
    Brian Booska, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Brian K. Booska appeals the summary denial of his rule 3.850 motion for post-conviction relief. We affirm.

Mr. Booska was convicted of vehicular homicide and sentenced to 208 months in the custody of the Florida Department of Corrections. His plenary appeal from the judgment and sentence was affirmed by this court per curiam and without opinion. See Booska v. State, 847 So.2d 484 (Fla. 5th DCA 2003). He then raised sixteen claims of ineffective assistance of counsel in his 3.850 motion, all of which were summarily denied by the trial court. In this appeal Mr. Booska seeks review of the order denying post-conviction relief.

At least thirteen of the grounds for relief listed by Mr. Booska consist of a rehash of the points raised on his direct appeal in this case, all of which were rejected. Inasmuch as we found no error in the underlying claims, Mr. Booska’s counsel cannot logically be deemed ineffective for not more vigorously objecting to or raising these issues below. Moreover, rule 3.850 does not provide a second avenue for raising purportedly reversible errors that were argued in the plenary appeal by re-raising them in the guise of ineffective assistance claims. See, e.g., Freeman v. State, 761 So.2d 1055, 1067 (Fla.2000); Vazquez v. State, 653 So.2d 486 (Fla. 5th DCA 1995).

As to the remaining issues raised, we conclude that the trial court did not err in denying them summarily. The sentence imposed was not vindictive, the autopsy photographs were properly admitted, and the combined claims do not amount to cumulative error entitling Mr. Booska to post-conviction relief.

AFFIRMED.

THOMPSON and ORFINGER, JJ„ concur.

      . See Wilson v. State, 845 So.2d 142 (Fla.2003).

      . See Hertz v. State, 803 So.2d 629, 642 (Fla.2001), cert. denied, 536 U.S. 963, 122 S.Ct. 2673, 153 L.Ed.2d 846 (2002).

      . See Johnson v. State, 769 So.2d 990, 1006 (Fla.2000).