text:
    Dennis John DIFFER v. STATE of Alabama.
    2050187.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1060669.

      Dennis John Differ, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   MURDOCK, Judge.

Dennis John Differ, acting pro se, appeals from a judgment of the DeKalb Circuit Court condemning a tract of property he owned and the dwelling located thereon, and forfeiting that property, as well as two firearms, to the DeKalb County Drug Task Force. We affirm.

The judgment from which Differ appeals was entered by the trial court following an ore tenus proceeding. Thus, we presume that the facts set forth in the trial court’s judgment, which contained a recitation of the evidence, are supported by testimony at the trial, even if no support for the facts recited in the judgment can be gleaned from the trial exhibits in the record. See Lake Forest Prop. Owners’ Ass’n, Inc. v. Coppage, 686 So.2d 1237, 1238 (Ala.Civ.App.1996) (explaining that when a trial court conducts a hearing and a transcript of that hearing is not present in the record, the appellate court is to presume that the trial court had adequate evidence before it to support its findings). Accordingly, the facts set forth in this opinion are gleaned from that evidence that is in the record before us, which we consider in the light most favorable to the State, and from the trial court’s judgment. See Great Coastal Express, Inc. v. Atlantic Mut. Cos., 790 So.2d 966, 968 (Ala.Civ.App.2000) (“Finally, we note that ‘[i]n ore tenus proceedings the trial court is the sole judge of the facts’ and ‘we are required to review the evidence in a light most favorable to the prevailing partfies].’ ”).

I.

As a threshold matter we take up an issue pertaining to the absence of a transcript in the record on appeal. On appeal, Differ has filed a motion in which he argues that, because he was adjudged indigent in both the related criminal case against him (see discussion below) and in the present case, he should have been provided a copy of the record on appeal and transcripts of the relevant proceedings in the trial court at no cost to him. He seeks an order from this court requiring the clerk of the DeKalb Circuit Court to forward to him a copy of the record on appeal and the transcripts of several hearings that the court reporters in this case and in the criminal case prepared.

Following the trial court’s entry of a judgment, Differ filed a motion to proceed on appeal in forma pauperis. The trial court granted the motion and ordered that Differ be allowed to proceed without prepayment of fees or costs or the giving of security. The court noted that he was still responsible for the cost of transcript preparation.

On January 6, 2006, this court sent a notice of deficiency to Differ indicating that he had not paid the court reporter for the production of a transcript. On January 10, 2006, Differ responded to this notice, indicating that he would be filing his appeal without the court reporter’s transcript because he could not afford to pay for the transcript.

Rule 24(a), Ala. R.App. P., provides, in pertinent part:

“A party to an action in a court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 15 of the Appendix of Forms, the party’s inability to pay fees and costs or to give security therefor, the party’s belief that he or she is entitled to redress, and a statement of the issues which the party intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the trial court shall state in writing the reasons for the denial.”

Describing the effect of Rule 24, the comment to Rule 24 states, in pertinent part: “There is no provision within the rule for the allowance of a free record or a free transcript in civil appeals.” In Hill v. Hill, 607 So.2d 278, 278-79 (Ala.Civ.App.1992), this court pointed out the comment to Rule 24 and held that the appellant in that case was not entitled to a free copy of the transcript.

Based on the foregoing, we deny Differ’s motion.

II.

We turn now to the merits of the case before us. On September 7, 2002, a helicopter pilot flying a marijuana-eradication detail in DeKalb County for the Alabama Department of Public Safety observed marijuana plants growing on Differ’s property. At the time that he observed the plants, the pilot was headed to a different area of the county and was traveling at an altitude of between 500 and 600 feet; he was not purposefully observing Differ’s property.

After spotting the marijuana plants on Differ’s property, the pilot descended for the purpose of determining if there were additional marijuana plants on Differ’s property that he had not seen in his first observation. He also notified the DeKalb County Drug Task Force of his observation. At no point while he was flying the helicopter did the pilot descend below 100 to 200 feet except when he was landing the helicopter.

Later that day, after obtaining a search warrant, law-enforcement officers searched Differ’s property and house. They uncovered 187 marijuana plants growing in Differ’s backyard, 7 barrels or drums buried on the premises containing 358 bags of marijuana, 2 buckets buried on the premises containing 20 bags of marijuana, 17 bags of marijuana in Differ’s home, 45 bags of marijuana in the trunk of an automobile parked in Differ’s garage, a book explaining how to grow marijuana, detailed notes on the quality of more than 200 allotments of marijuana, a Remington .22 rifle, and a Marlin 44 Magnum rifle.

When entering Differ’s house, the law-enforcement officers found Differ uneon-scious from an attempt to commit suicide by drinking brake fluid and other toxic agents. Differ was taken to a hospital. Three days later, law-enforcement officers interviewed Differ at the hospital. Differ stated that he sold marijuana for the treatment of cancer, and he told the officers where they could find a jar containing money that was buried in his backyard. The officers subsequently uncovered $12,600 in two glass jars on Differ’s premises, as well as $523 in a book in Differ’s home.

On September 24, 2002, the State of Alabama filed an action pursuant to Ala. Code 1975, § 20-2-93, seeking a judgment condemning Differ’s real property, the $13,123 found on his property, and the two firearms, and forfeiting those items so that they would be used for law-enforcement purposes or sold. Differ, who was not represented by counsel, filed an answer generally denying the allegations of the complaint.

On August 8, 2003, the State filed a motion for a summary judgment. On September 10, 2003, the trial court granted the motion and entered a summary judgment in the State’s favor. On September 16, 2003, Differ, newly represented by counsel, filed a motion for reconsideration, which the trial court treated as a motion to alter, amend, or vacate the judgment pursuant to Rule 59, Ala. R. Civ. P. On October 16, 2003, following a hearing on Differ’s motion, the trial court granted the motion and set aside the summary judgment.

On September 15, 2004, in a separate criminal proceeding against Differ arising out of the same incident giving rise to the civil-forfeiture case, Differ pleaded guilty to trafficking in marijuana. He was sentenced to 20 years in the state penitentiary and was ordered to pay a fine of $50,000.

On March 23, 2005, the day that the civil trial was to begin in the present case, Differ filed a motion to suppress the evidence that the law-enforcement officers had seized during their search of Differ’s property. He argued that the officers’ initial search of his property was warrant-less and that the subsequent search was conducted under a warrant that was wrongly obtained on the basis of evidence discovered during the initial, warrantless search. The trial began as scheduled on March 23, but it was not completed on that day. After multiple continuances, the trial was completed on September 20, 2005.

On October 5, 2005, the trial court entered its final judgment. In its order, the trial court stated, in pertinent part:

“Upon consideration of the evidence as a whole, the court makes the following findings:
“1. On or before September 7, 2002, the defendant was cultivating and growing large quantities of marihuana plants on real property owned by him in violation of the law of this state. A more particular description of the realty is described in a deed recorded in the De-Kalb County, Alabama Probate Office at Deed Book 247, Page 139.
“2. On and before September 7, 2002, the defendant was using a dwelling located on the tract referenced above to store the marihuana and to prepare it for sale, and was selling and distributing marihuana from such dwelling.
“3. As to the currency found on the defendant’s premises, there is no direct evidence that it was acquired by defendant from the sale of marihuana. The defendant has given uncontroverted testimony about lawful sources of income and offered a tenable explanation for keeping his money outside a bank. There is no evidence before the court relating to the value of the marihuana, and the notes kept by defendant give no indication of sums that defendant may have received for its sale. Accordingly, the court finds the evidence insufficient to trace the currency to the sale of marihuana or to establish that such funds were used to facilitate the violation of law.
“4. As to the two firearms sought to be forfeited, the court finds it reasonable to infer that they were intended for use in defendant’s unlawful operation.
“In accordance with these findings, it is adjudged and decreed as follows:
“1. The real property owned by defendant and described in the deed referenced herein, as well as the dwelling located thereon, are hereby condemned and forfeited to the DeKalb County Drug Task Force, being a lawful enforcement agency, and such agency shall sell the property and use the proceeds of sale as authorized by law.
“2. The State shall pay into this court the U.S. currency taken from the defendant’s property in the sum of $13,-123, and the clerk shall hold such funds pending further order of the court.
“3. The Remington .22 rifle and the Marlin 44 Magnum rifle taken by law enforcement shall be forfeited to the DeKalb County Drug Task Force and shall be destroyed.
“4. The State has not requested the forfeiture of the contents of the dwelling, and the defendant or his agent shall be entitled to remove the contents from the dwelling.”

Differ appealed to this court. This court transferred the appeal to the Supreme Court for lack of appellate jurisdiction. The Supreme Court subsequently deflected the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7.

Differ contends that the trial court erred by failing to suppress the evidence that was gathered from his property as a result of the warrantless “search” the helicopter pilot conducted when flying over Differ’s property en route to a different location. He argues that the pilot lowered the helicopter to an altitude of only 40 feet and began “rotor-thrashing” the vegetation on Differ’s property in an attempt to uncover marijuana plants, which, according to Differ, could not have been visible from the altitude of 500 feet at which the pilot claims to have seen the marijuana plants.

We disagree. In testimony from the suppression hearing conducted in the criminal proceeding against Differ, the transcript of which was placed into evidence in the trial of the present matter, the pilot testified that he initially spotted the marijuana plants on Differ’s property from an altitude of at least 500 feet as he was traversing DeKalb County en route to a separate location. He also testified that he never descended below “100 to 200 feet” except when he landed the helicopter on a separate tract. These facts do not constitute an illegal search under the Fourth Amendment to the United States Constitution. See Florida v. Riley, 488 U.S. 445, 448-52, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989); United States v. Fernandez, 58 F.3d 593, 597 (11th Cir.1995). Because the trial court was free to, and apparently did, credit this testimony, despite testimony from Differ’s expert witness that the overgrowth on Differ’s property would have prevented the pilot’s observation of the marijuana plants from an altitude of 500 feet, we find that the trial court did not err when it refused to suppress the evidence that was discovered on Differ’s property.

Differ next contends that the presence of law-enforcement officers on his property on September 7, 2002, as well as the “three (3)day siege (similar to Waco, Texas incident)” constituted an unlawful detention. We disagree. First, law-enforcement officers were present on Differ’s property pursuant to a valid search warrant obtained after a substantial number of marijuana plants were observed to be growing on his property. Second, Differ was removed from his property and taken to a hospital on the same day that the officers were present on his property, after he tried to kill himself. He was not subjected to a three-day siege as he claims. Differ’s claim of an unlawful detention is without merit.

Differ also contends that the search warrant that the law-enforcement officers obtained was invalid because, he asserts, it was not obtained until after September 7, 2002, and was back-dated to that date so that it would appear valid. The record provides no evidence to support this contention, and, as a result, we find that it is without merit.

Differ next contends that the trial judge should have recused himself from the present proceeding because he was the judge that signed the warrant allowing law-enforcement officers to search Differ’s property. According to Differ, the trial judge’s involvement in both issuing the search warrant and the present case, in which the validity of the search warrant was questioned, constituted an appearance of impropriety because, according to Differ, “he could not remain detached, impartial, and neutral.” Differ did not raise this issue below, and, as a result, we will not address it in resolving this appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

Differ contends that the affidavit that law-enforcement officers proffered to the court to obtain the warrant to search Differ’s property was defective, such that the court should not have issued the warrant. He argues that the statement in the affidavit indicating that the helicopter pilot observed marijuana plants growing on Differ’s premises was not sufficiently specific as to the time that that observation occurred. He also argues that the affiant states only that he “has probable cause to believe” that certain items were present on Differ’s property but that the affiant failed to state that he “does believe.”

We have reviewed the affidavit and conclude that it was without any of the defects that Differ alleges. As to the first alleged defect, the affidavit clearly states that the helicopter pilot observed marijuana plants growing on Differ’s property on September 7, 2002, the same day that the law enforcement officers sought the search warrant. It is therefore sufficiently specific as to when the pilot’s observation occurred.

As to the second alleged defect, Differ misconstrues the caselaw he cites in support of his view that the words “and does believe” must appear in the affidavit for it to be valid. In Tyler v. State, 45 Ala.App. 155, 227 So.2d 442 (Crim.1969), the case upon which Differ relies, the appellate court held that an affidavit submitted to obtain a search warrant was improper because it failed to include any specific, relevant facts giving rise to the officer’s belief that there was probable cause for the issuance of a search warrant. Tyler, 45 Ala.App. at 159-62, 227 So.2d at 446-48. Contrary to Differ’s contention, the affidavit was not invalid because the officer failed to recite the words “and does believe” in the affidavit. Differ’s contention is without merit.

Differ next contends that the trial court erred when it forfeited the two firearms because, he argues, the State failed to prove that he “used or intended to use the two (2) firearms to facilitate the sale, receipt, transportation, possession or concealment of a controlled substance.” As previously stated, there is no transcript of the ore terms trial conducted in this matter. In the absence of a transcript, we presume that the trial court had before it sufficient evidence when it found that it was “reasonable to infer that [the firearms] were intended for use in defendant’s unlawful operation.” See Lake Forest Prop. Owners’ Ass’n, Inc. v. Coppage, 686 So.2d at 1238.

Differ also contends that there were a number of problems with the affidavits and oral argument that the State presented in support of its summary-judgment motion. As previously noted, after initially granting the State’s motion and entering a summary judgment, the trial court granted Differ’s motion to alter, amend, or vacate the judgment and set the summary judgment aside. Because of this, we fail to see how any problems associated with the State’s submission in support of its motion for a summary judgment has any bearing on the present appeal.

Differ contends that there was no evidence presented indicating that he bought, sold, received, distributed, or transported any controlled substance or that any law-enforcement official caught him in the act of doing so. However, it is undisputed that Differ pleaded guilty to trafficking in marijuana based on the evidence uncovered on and after September 7, 2002, on his property. A copy of this plea and the judgment based thereon were submitted as an exhibit in the present case. Given this, we conclude that this contention is without merit.

Finally, in his reply brief, Differ sets forth a number of contentions, many of which are difficult to discern, relating to the State’s complaint in this action and whether the complaint properly invoked the jurisdiction of the court. We have reviewed the complaint, as well as Differ’s arguments. We conclude that those additional arguments contained in the reply brief that are discernible are without merit. We likewise conclude that the trial court properly had jurisdiction over this case.

For the foregoing reasons, we conclude that the trial court’s judgment is due to be affirmed.

MOTION DENIED; AFFIRMED.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

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

      . Furthermore, it was not until July 27, 2006, more than three months after briefing in this case had closed, that Differ filed his motion to be provided the transcripts at no cost to him. Even if Differ’s indigent status gave him a right to the transcripts he seeks, that right has been waived in this case.

      . Differ does not argue that the trial court erred when it allowed the introduction of a portion of the transcript from Differ's criminal case into evidence.

      . Differ's expert witness’s testimony was based on the state of Differ's property on or around September 14, 2004, some two years after September 7, 2002, the date on which the pilot testified that he observed the marijuana plants on Differ's property.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    B.R. v. F.H. and W.H.
    2050531.
    Court of Civil Appeals of Alabama.
    Feb. 2, 2007.

      Jackie Ferguson Graham of Ferguson <& Ferguson, Huntsville, for appellant.
    Jerry Knight, Decatur, for appellees.
   BRYAN, Judge.

B.R. (“the father”) appeals a judgment finding that he had voluntarily relinquished custody of his minor son Z.S.R. (“the child”) and awarding custody of the child to W.H. (“the maternal grandmother”). We dismiss the appeal because we lack jurisdiction.

In December 2003, the maternal grandmother and her husband, F.H. (“the step-grandfather”), petitioned the juvenile court of Morgan County to find the child dependent and to award them custody of the child. The father filed a counterpetition seeking custody or visitation.

Following a bench trial, the juvenile court, in August 2004, entered a judgment finding the child dependent, awarding temporary custody of the child to the maternal grandmother and stepgrandfather, and granting the father visitation with the child.

The father appealed the juvenile court’s judgment to this court; however, this court, pursuant to Rule 28(B), Ala. R. Juv. P., transferred the father’s appeal to the Morgan Circuit Court for a trial de novo.

Following a bench trial in the circuit court, the trial judge, on December 30, 2005, entered a judgment awarding custody of the child to the maternal grandmother and granting the father liberal visitation. On January 23, 2006, 24 days after the entry of that judgment, the father filed a Rule 59, Ala. R. Civ. P., postjudgment motion. Following a hearing on the father’s postjudgment motion, the circuit court, on February 27, 2006, entered an order purporting to amend certain provisions of the December 30, 2005, judgment that pertained to visitation and child support but purporting to deny the father’s postjudgment motion in all other respects. The father filed a notice of appeal to this court on March 31, 2006, 91 days after the entry of the December 30, 2005, judgment in the circuit court.

Although neither party has questioned this court’s jurisdiction, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ ” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “ ‘The timely filing of a notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985); see also Rule 2(a)(1), Ala. R.App. P.” R.M. v. J.D.C., 925 So.2d 970, 972 (Ala.Civ.App.2005).

In pertinent part, Rule 1(B), Ala. R. Juv. P., provides:

“Procedure shall be uniform in all courts, whether at circuit or district court level or in the circuit court by trial de novo. All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within If days after entry of judgment and shall not remain pending for more than 14 days.”

(Emphasis added.)

In R.M. v. J.D.C., this court held that, pursuant to the first sentence of Rule 1(B), a notice of appeal from a judgment entered by a circuit court in a trial de novo on appeal of a juvenile matter must be filed within 14 days of the entry of that judgment. The timely filing of a post-judgment motion will suspend the running of the time for filing a notice of appeal from such a judgment. See Rule 28(B), Ala. R. Juv. P. (“All appeals to an appellate court shall be governed by the Alabama Rules of Appellate Procedure to the extent that those Rules are not inconsistent with this rule.”), and Rule 4(a)(3), Ala. R.App. P. (“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal.”). However, the untimely filing of a postjudgment motion will not suspend the running of the time for filing a notice of appeal from such a judgment. See D.O.L. v. J.M.P.H., 874 So.2d 560, 561-62 (Ala.Civ.App.2003); see also Gunnison-Mack v. Alabama State Pers. Bd., 923 So.2d 319, 320 (Ala.Civ.App.2005), and Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002).

In the case now before us, the 14-day period for the father to file his notice of appeal from the December 30, 2005, judgment entered by the circuit court expired on January 13, 2006. Likewise, the 14-day period for the father to file a post-judgment motion expired on January 13, 2006. However, the father did not file his postjudgment motion until January 23, 2006. Thus, neither the father’s filing of his postjudgment motion nor the entry by the circuit court of the order purporting to rule on that tardy postjudgment motion extended the time for the father to file a notice of appeal from the December 30, 2005, judgment. Therefore, the father’s filing of his notice of appeal on March 31, 2006, was untimely, and this court does not have jurisdiction to consider the father’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


author: PITTMAN, Judge. THOMPSON, Presiding Judge,

text:
    Joseph W. HUTCHINSON, Jr. v. Frederick Hudson MILLER, Jr., et al.
    2050923.
    Court of Civil Appeals of Alabama.
    Feb. 2, 2007.

      Joseph W. Hutchinson III, Butler; and Timothy C. Hutchinson, Butler, for appellant.
    Edward P. Turner, Jr., Halron W. Turner, E. Tatum Turner, and Martin R. Pearson of Turner, Onderdonk, Kim-brough, Howell, Huggins <& Bradley, P.A., Chatom, for appellees.
   PITTMAN, Judge.

This appeal concerns the jurisdiction of the probate courts of Alabama to hear cases involving the partition of property or the sale of property and the division of the sale proceeds.

Joseph W. Hutchinson, Jr. (“the plaintiff’), brought an action in the Choctaw Probate Court seeking a sale for division of certain oil, gas, and mineral rights associated with a parcel of land located in Choctaw County; the plaintiff allegedly held a fractional interest in that parcel. As amended, the complaint named nine defendants who were alleged cotenants as to those rights. After one of those defendants, appearing pro se, had filed an answer in letter form to the complaint, counsel for the eight other defendants (“the moving defendants”) filed a motion to dismiss the action pursuant to Rule 12(b)(1), Ala. R. Civ. P., which pertains to dismissal for lack of subject-matter jurisdiction. In that motion, the moving defendants alleged that the action was not properly brought in the probate court under § 35-6-40, Ala. Code 1975, because there was no “open estate in that court,” and they contended that the probate court should decline jurisdiction because, they said, the probate court was without power to “do complete justice” in the action. No evidentiary material was submitted in support of the moving defendants’ motion.

The probate court entered a judgment dismissing the action without prejudice, citing both grounds asserted by the moving defendants. The plaintiffs appeal from the probate court’s judgment to the Alabama Supreme Court was transferred to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Because the probate court’s judgment expressly stated that the action had been dismissed “without prejudice,” the finality of the judgment under review may, at first glance, be questioned in light of the rule followed in Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). However, we distinguish Palughi on the basis that the probate court’s judgment of dismissal of the action, on the basis of lack of subject-matter jurisdiction, “conclusively determine[d] the issues before the court” (659 So.2d at 113) upon the submission of the moving defendants’ motion to dismiss for lack of subject-matter jurisdiction, thus rendering the judgment final. We therefore reach the merits of the contentions raised by the parties on appeal, applying, as we must, a de novo standard of review to the probate court’s judgment. See State Dep’t of Revenue v. Arnold, 909 So.2d 192, 193 (Ala.2005).

As the Supreme Court noted in Wilkinson v. Stuart, 74 Ala. 198, 203 (1883), although “[t]he partition of lands between joint tenants, tenants in common, and co-parceners, is an established head of equity jurisdiction” — jurisdiction that, under our merged system of law and equity, lies in our circuit courts under Rule 2, Ala. R. Civ. P., and § 12-11-31, Ala.Code 1975 — “[b]y statute, it is very common to confer a like jurisdiction upon other tribunals, of superior or inferior jurisdiction.” From at least 1852, probate courts in the several counties of this state have had, by statute, jurisdiction to partition lands held by cotenants within those counties. See § 670, subdiv. 10, Ala.Code 1852 (now codified as § 12-13-1(9), Ala.Code 1975). That jurisdiction was extended by the legislature in 1856 so as to allow the probate courts to “decree and order a sale of all property, whether the same be real, personal, or mixed.” Act No. 32, § 1, 1855-56 Ala. Acts. In 1858, the legislature reaffirmed the jurisdiction of the probate court to partition lands. See Act No. 219, § 1, 1857-58 Ala. Acts. Thus, there are two remedial “systems” available to a cotenant who seeks a severance of his or her interests in jointly held property: (a) a partition of that property, if it can be equitably divided, or (b) the sale of the property and the division of the sale proceeds, if the property cannot be equitably divided; as our Supreme Court noted in Hillens v. Brinsfield, 108 Ala. 605, 613, 18 So. 604, 607 (1895), “the two systems are separate and distinct, each complete in itself.”

The Alabama Code of 1867 recodified the probate court’s power to partition property and codified for the first time the probate court’s power to sell property for division. Section 3105 of that Code addressed partition:

“Any property, real, personal or mixed, held by joint owners or tenants in common, may be divided among them on the application of the persons entitled thereto, or any one of them, in writing to the judge of probate of the county in which the property is. Such application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.”

Section 3120 of that Code, in contrast, addressed the probate court’s power to sell property for division:

“Judges of the probate court may decree and order a sale of all property, whether real, personal or mixed, held by joint owners or tenants in common, when the same cannot be equitably partitioned or divided between such joint owners or tenants in common, notwithstanding they, or any number of them, are infants, or persons of unsound mind.”

As the probate-court partition provision of the 1867 Code was carried forward into subsequent codes, the two sentences contained therein were conflated into one longer sentence through the use of a semicolon and the conjunction “and”:

“Any property, real, personal, or mixed, held by joint owners or tenants in common, may be divided among them, on the written application of one or more of them to the probate court of the county in which the property is situate; and such application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.”

Ala.Code 1886, § 3237; accord, § 35-6-40, Ala.Code 1975 (bearing no changes from the 1886 codification apart from the replacement of the word “situate” with “situated”). Likewise, § 35-6-58, Ala.Code 1975, which is the modern statute addressing sale-for-division jurisdiction in the probate court, provides that real and personal property of joint owners or tenants in common that “cannot be equitably divided or partitioned” may be sold for division “notwithstanding they, or any of them, are infants or persons of unsound mind” (emphasis added).

We recite that legislative history at length to demonstrate the error of the moving defendants’ contention, and the probate court’s holding in accord with that contention, that the reference in § 35-6-40, Ala.Code 1975, to executors, administrators, and guardians somehow limits both the partition and sale authority of the probate court to situations in which there is an estate of a decedent or a protected person. To the contrary, it is well-settled under Alabama law that both probate courts and circuit courts sitting in equity have concurrent jurisdiction in this area. “[A] proceeding for partition or for a sale for division of proceeds may be maintained in either the probate court or the circuit court of the county in which the land or some part of the land is situated.” Sockwell v. Hyde, 503 So.2d 817, 818 (Ala.1986). The specification of certain classes of interested persons in § 35-6-40 in reference to who may bring an action seeking partition through a representative does not have any bearing upon the power of a probate court to entertain such an action brought by a party who is mi juris, nor does it limit the power of such a court under § 35-6-58 to entertain an action seeking a sale of property for division of proceeds, which is the remedy the plaintiff in this case seeks.

We thus conclude that the Choctaw Probate Court erred in concluding that it did not have subject-matter jurisdiction over the plaintiffs complaint. However, that conclusion does not itself mandate reversal of the judgment of dismissal because the moving defendants have also averred that the judgment is proper on an alternative ground: that the probate court had discretion to decline to adjudicate the case and that it correctly chose to do so. We now consider the validity of that ground. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (trial court’s judgment is due to be affirmed if it is supported by any valid legal ground).

The motion to dismiss filed by the moving defendants asserted that the probate court lacked the power to “do complete justice” in the action. There is authority in Alabama for the proposition that a probate court should decline to hear an action seeking partition or a sale for division when, under certain circumstances, only a court of equity would have the authority to fully adjudicate certain matters to be decided in connection with the remedy sought. For example, in Ballard v. Johns, 84 Ala. 70, 4 So. 24 (1888), the Alabama Supreme Court noted that § 3512 of the Alabama Code of 1887 (now § 85-6-55, Ala.Code 1975) “denies to the probate court the power and jurisdiction to adjudicate, on a petition for the partition of lands, adverse claims and titles,” and concluded that “[i]f during the pendency or trial of the petition, it is made known to [the probate judge] that there is a substantial adverse claim asserted by any one, the statute makes it obligatory upon [the judge] to decline further jurisdiction of the matter.” 84 Ala. at 71, 4 So. at 25. Similarly, in Marshall v. Marshall, 86 Ala. 383, 5 So. 475 (1889), the Alabama Supreme Court, while recognizing the concurrent jurisdiction of probate courts and equity courts as to partition and sale actions, noted the potential existence of “circumstances ... such as to render the power of the Probate Court inadequate” and indicating that the probate courts did not have power “to compensate for inequalities in the partition; nor to take an account of rents; nor to provide for relieving the lands of incumbrances; nor to adjust and equalize the advancements among the tenants in common, when the lands descended from a common ancestor.” 86 Ala. at 389, 5 So. at 477.

Although we do not discount the importance of the considerations noted in Ballard and Marshall in considering the propriety of a probate court’s determination to decline jurisdiction, our task in this appeal is to determine whether the record contains evidentiary support for a valid ground for declining jurisdiction. In support of their contention that jurisdiction should be declined, the moving defendants asserted in their motion that the plaintiff had sought only a sale for division of mineral rights as to which the joint owners lacked equal shares; that the mineral rights had been leased to third parties, who had drilled and operated wells on the pertinent real property; and that the Alabama Oil and Gas Board, a state agency constituted under the provisions of § 9-17-1 et seq., Ala.Code 1975, had entered orders “affecting the title to the oil and gas production from the mineral rights at issue.”

The first ground — that ground referring to the parties’ unequal ownership shares and the unusual nature of the property at issue — is not a sound basis for declining jurisdiction as a matter of law. Probate courts have the power to sell for division property that is held in unequal shares. Hillens, 108 Ala. at 607, 18 So. at 605 (“Equality of interests is not essential to the jurisdiction of the Probate Court to decree a sale for division.”). Moreover, the “mere fact that the property involved consists of undeveloped ... mineral rights” is not an impediment to a sale for division- — indeed, the character of the property involved has been held to warrant “a sale for division on less strict proof than in cases involving fee-simple estates or surface rights, when the value of the property is more easily ascertained.” Musgrove v. Aldridge, 205 Ala. 189, 191, 87 So. 803, 804 (1920).

The two remaining contentions of the moving defendants — that the property has been leased to third parties and/or that the Alabama Oil and Gas Board has entered orders affecting the parties’ interests in the property — might well, if proved, defeat the jurisdiction of the probate court under § 35-6-55, Ala. Code 1975, which, as we have noted, prevents the probate court from partitioning or selling for division property “when an adverse claim or title is asserted by anyone” or is “brought to the knowledge of ... the judge of probate.” However, the moving defendants adduced no evidence to support their contentions in their motion to dismiss, and “ ‘[statements in motions are not evidence’ ” in and of themselves. Fountain Fin., Inc. v. Hines, 788 So.2d 155, 159 (Ala.2000) (quoting Singh v. INS, 213 F.3d 1050, 1054 n. 8 (9th Cir.2000)). Thus, despite the moving defendants’ arguments, we cannot affirm the probate court’s judgment as constituting a permissible discretionary decision to decline jurisdiction.

Based upon the foregoing facts and authorities, we reverse the judgment of dismissal and remand the cause to the probate court for further proceedings on the plaintiffs complaint.

REVERSED AND REMANDED.

BRYAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs specially.

THOMPSON, Presiding Judge,

concurring specially.

I concur in the main opinion. I write specially to clarify that the primary issue on appeal is the proper interpretation of §§ 35-6^40 and 35-6-58, Ala.Code 1975, the statutes that respectively govern the partition and sale for division of property by the probate courts. Section 35-6-40 states:

“Any property, real, personal or mixed, held by joint owners or tenants in common, may be divided among them, on the written application of one or more of them to the probate court of the county in which the property is situated; and such application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.”

(Emphasis supplied.) Section 35-6-58 states, in relevant part:

“Any property, real or personal, held by joint owners or tenants in common, on the written application of any one or more of them, may be decreed to be sold by the probate court of the county in which such property is situated, ... notwithstanding they, or any of them, are infants or persons of unsound mind, and the application may be made by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.”

(Emphasis supplied.) The appellees argue that the emphasized language should be interpreted to limit the jurisdiction of the probate courts to such actions brought “by the executor or administrator of a deceased person in interest, or by the guardian of a minor or person of unsound mind.” The main opinion reviews previous versions of these statutes and the nineteenth century eases that apply them to determine whether the legislature intended the language to limit the jurisdiction of the probate courts as the appellees suggest.

Notably, Wilkinson v. Stuart, 74 Ala. 198, 203-04 (1883), which is cited by the main opinion and which interpreted statutes that were substantially similar to the current statutes, stated:

“The Code confers on the judge of the Court of Probate a large jurisdiction to order the partition of property, real or personal, held jointly or in common.... ”

and

“the Code confers on the judge of probate jurisdiction to order a sale of the common estate,.... This jurisdiction ... as to the adult tenants, ... is exclusive.”

(Emphasis supplied.) Wilkinson, a case in which “adult tenants” — not an executor, administrator, or guardian — made the application, does not mention the jurisdictional limitation asserted by the appellees.

Similarly, in a more recent case, Jernigan v. Jernigan, 678 So.2d 1169 (Ala.Civ.App.1996), this court reviewed the assessment of attorney fees by a probate court in an action in which adult plaintiffs filed a complaint seeking the sale for division of real property. No party challenged the subject-matter jurisdiction of the probate court, and this court did not raise the issue sua sponte, even though the action was not filed by an executor, administrator, or guardian.

Based on the language of §§ 35-6-40 and 35-6-58 and the fact that I can find no precedent limiting the jurisdiction of the probate courts in the manner the appellees advocate, I concur with the main opinion.

      . The Rules of Civil Procedure, which govern "evidence, pleading and practice, judgments and orders in the circuit court,” likewise govern probate-court proceedings "in the absence of express provision” to the contrary. Ala.Code 1975, § 12-13-12.

      . Unlike a motion pursuant to subsection (6) of Rule 12(b), a motion under subsection (1) of that rule is a "speaking” motion that may be supported or opposed by materials outside the complaint, i.e., "[ejvidentiary matters may be freely submitted on a motion to dismiss that attacks jurisdiction.” Williams v. Skysite Commc’ns Corp., 781 So.2d 241, 245 (Ala.Civ.App.2000).


author: BASCHAB, Judge. BASCHAB, Judge. WISE, Judge, BASCHAB, Judge.

text:
    Carlous COBB v. STATE of Alabama.
    CR-05-0422.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.
    Opinion on Return to Remand June 30, 2006.
    Opinion on Application for Rehearing Sept. 29, 2006.
    Second Application for Rehearing Denied Dec. 1, 2006.
    Certiorari Denied March 9, 2007 Alabama Supreme Court 1060430.
    Carious Cobb, pro se.
    Troy King, atty. gen., and Bettie J. Car-mack, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Carious Cobb, was indicted for first-degree robbery. On April 9, 2001, pursuant to a negotiated agreement, he pled guilty to second-degree robbery. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c), Ala.Code 1975. He did not appeal his conviction. On May 6, 2005, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case. Specifically, he contends that the trial court did not have jurisdiction to accept his guilty plea for the offense of second-degree robbery because the indictment did not allege that he was aided by another person who was actually present and because the indictment was not properly amended to allege that he was aided by another person who was actually present. In Ex parte Cole, 842 So.2d 605, 609 (Ala.2002), the Alabama Supreme Court held:

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

In this case, the indictment against the appellant did not allege sufficient facts from which it could be concluded that another person aided him in the robbery. The indictment alleged that the appellant

“did, in the course of committing a theft of lawful United States currency and one (1) 12-gauge shotgun, the property of Wendy Giles, use force or threaten the imminent use of force against the person of Wendy Giles, with the intent to overcome her physical resistance or physical power of resistence or to compel acquiescence to the taking of or escaping with the property, while the said [appellant] was armed with a deadly weapon or dangerous instrument, to-wit: a gun or pistol, in violation of Title 13A, § 13A-8-41, Code of Alabama 1975, contrary to the law and against the peace and dignity of the State of Alabama.”

(C.R. 17.) Also, we cannot determine from the record before us whether the indictment was amended to add the allegation that another person aided him in the robbery.

Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact as to whether the indictment against the appellant was amended to add the allegation that another person aided him in the robbery. On remand, the circuit court may require the State to respond specifically to the appellant’s claim that he was convicted of an offense for which he was not indicted and/or may conduct an eviden-tiary hearing on that claim. If the circuit court determines that the indictment against the appellant was not amended to add the allegation that another person aided him in the robbery, then the circuit court shall vacate the appellant’s second-degree robbery conviction. 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 and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

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

On Return to Remand

BASCHAB, Judge.

The appellant, Carious Cobb, was indicted for first-degree robbery. On April 9, 2001, pursuant to a negotiated agreement, he pled guilty to second-degree robbery. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c), Ala.Code 1975. He did not appeal his conviction. On May 6, 2005, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition, and the appellant appealed the denial to this court.

On March 24, 2006, we remanded this case to the circuit court with instructions that that court make specific, written findings as to whether the indictment against the appellant was amended to add the allegation that another person aided him in the robbery. See Cobb v. State, 962 So.2d 891 (Ala.Crim.App.2006). On remand, the circuit court found as follows:

“IT APPEARS TO THIS COURT, AND IT IS SO FOUND, that a factual basis was established by the Defendant during his colloquy with this Court to substantiate a plea to Robbery, 2nd Degree, as a lesser included offense of Robbery, 1st Degree; and further that the Defendant agreed de facto to the same and concurred with amending the charge against him as contained in the indictment to such lesser included charge (Record, p. 14 line 25 through p. 15 line 25); and IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND that the same was agreed to by Defendant’s counsel at the time of such plea (Record, p. 6 lines 13-14); and
“IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND, that the State set forth additional reasons as to such plea being made to a lesser included charge (Record, p. 16 line 24 through p. 17 line 4) and that this Court, thereafter, approved all of the foregoing and, in accordance with the provisions of Rule 13.5(a), A.R. Cr. P., proceeded to amend such charges orally (Record, p. 15 lines 18-25); and
“IT FURTHER APPEARS TO THIS COURT, AND IT IS SO FOUND, that, based on all of the foregoing, that the indictment against the Defendant was properly amended to add the allegation that another person aided him in the robbery in question and that such was done properly in accordance with the provisions of Rule 13.5(a), A.R. Cr. P.”

(Order on Return to Remand.) The circuit court attached a transcript of the guilty plea proceedings to its return to remand. The transcript of the guilty plea proceedings indicates that the first-degree robbery charge was amended by agreement to second-degree robbery and that the appellant agreed that another person was involved in the robbery. However, the transcript does not indicate that the trial court specifically amended the indictment to include the allegation that the appellant was aided by another person who was actually present.

The Alabama Supreme Court has

“specifically required an indictment to be amended, whether formally or informally, by adding any facts necessary to bring the lesser charge within the scope of the indictment. Not only must the record support such a charge, but also more is required — the affirmative act of adding to the indictment a fact supporting the charge.

Wright v. State, 902 So.2d 738, 741 (Ala.2004) (emphasis added). See also Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).

“It is apparent from the record that the amendment referred to [during the guilty plea proceedings] was the amendment from first-degree robbery to second-degree robbery, not an amendment to add to the indictment charging first-degree robbery the fact that Toliver had been aided in the robbery by another person.”

Toliver, 881 So.2d at 1077. Because the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery. Therefore, we reverse the circuit court’s judgment and remand this case for the circuit court to set aside the appellant’s conviction and sentence for second-degree robbery. We note that

“the indictment[ ] ... for first-degree robbery remainfe] valid. The State may still try [the appellant] on th[at] charge[], or it may attempt to reindict [him] for another offense justified by the facts. As we explained in [Ex parte] Cole[, 842 So.2d 605, 609 (Ala.2002) ], a conviction that has been held void does not raise double-jeopardy concerns, because jeopardy attaches only when the court obtains jurisdiction. Cole, 842 So.2d at 609.”

Wright, 902 So.2d at 742.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB and SHAW, JJ., concur; WISE, J., concurs specially, with opinion.

WISE, Judge,

concurring specially.

I reluctantly concur with the main opinion’s conclusion that “[b]ecause the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery.” 962 So.2d at 894. When evaluating a circuit court’s ruling on a postcon-viction petition this Court applies an abuse-of-discretion standard. “ ‘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.’ ” DeBruce v. State, 890 So.2d 1068, 1075 (Ala.Crim.App.2003) (quoting Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999)).

Normally, in a postconviction proceeding such as this, this Court accords great deference to the trial court’s factual findings. Our deference is premised on the fact that in most instances the judge reviewing the merits of a petitioner’s postconviction claims is the same judge who presided over the petitioner’s original trial or who accepted the petitioner’s guilty plea. An examination of the record in this case indicates that Judge Donald Stewart accepted Cobb’s guilty plea and sentenced him in accordance with that plea. However, the judge who reviewed the merits of Cobb’s Rule 32, Ala.R.Crim.P., petition — Judge Shaun Malone — was not the same judge who accepted Cobb’s guilty plea. Accordingly, Judge Malone’s knowledge of the guilty-plea proceedings is based on his review of the transcript of the plea colloquy — as is this Court’s. Although it appears to have been the intent of the parties to amend the indictment — with Cobb’s express consent — there is no evidence indicating that the trial court specifically amended the indictment to include the allegation that Cobb was aided in the robbery by another person who was actually present. Thus, based on the holdings in Ex parte Cole, 842 So.2d 605 (Ala.2002), Childers v. State, 899 So.2d 1025 (Ala.2004), and Wright v. State, 902 So.2d 738 (Ala.2004), this Court is left with no option but to grant Cobb’s petition for relief.

However, I write to urge the Supreme Court to revisit its holdings in the aforementioned cases. I further write to express my agreement with the dissents authored by Justice See and Justice Stuart in Childers v. State and Wright v. State; their dissents conclude that no formal factual amendment of the indictment should be necessary in cases where the record contains clear evidence establishing the lesser-included offense of second-degree robbery.

Here, where the record supports the lesser-included offense, the requirement of the affirmative act of adding a fact to the indictment elevates form over substance and is nonsensical. Nonetheless, because this Court is bound by the decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court,” Ex parte Jones, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972), we have no choice but to follow the holding of the majority in Ex parte Cole, Childers v. State, and Wright v. State, and to grant Cobb the relief sought in his Rule 32 petition.

On Application for Rehearing

BASCHAB, Judge.

The appellant, Carious Cobb, was indicted for first-degree robbery. On April 9, 2001, pursuant to a negotiated agreement, he pled guilty to second-degree robbery. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c), Ala.Code 1975. He did not appeal his conviction. On May 6, 2005, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily denied the petition, and the appellant appealed the denial to this court.

In his brief to this court, the appellant argued that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case. Specifically, he contended that the trial court did not have jurisdiction to accept his guilty plea for the offense of second-degree robbery because the indictment did not allege that he was aided by another person who was actually present and because the indictment was not properly amended to allege that he was aided by another person who was actually present. On March 24, 2006, we remanded this case to the circuit court with instructions that that court make specific, written findings as to whether the indictment against the appellant was amended to add the allegation that another person aided him in the robbery. See Cobb v. State, 962 So.2d 891 (Ala.Crim.App.2006). In our opinion on return to remand, we explained:

“The transcript of the guilty plea proceedings indicates that the first-degree robbery charge was amended by agreement to second-degree robbery and that the appellant agreed that another person was involved in the robbery. However, the transcript does not indicate that the trial court specifically amended the indictment to include the allegation that the appellant was aided by another person who was actually present.”

Cobb v. State, 962 So.2d 891, 893-94 (Ala.Crim.App.2006) (opinion on return to remand). Relying on Ex parte Cole, 842 So.2d 605 (Ala.2002), we concluded:

“Because the indictment in this case was not amended to add the fact that the appellant was aided by another person who was actually present, the trial court did not have jurisdiction to accept his guilty plea to second-degree robbery. Therefore, we reverse the circuit court’s judgment and remand this case for the circuit court to set aside the appellant’s conviction and sentence for second-degree robbery.”

962 So.2d at 894.

The State has filed an application for a rehearing in which it argues that our decision on return to remand is in direct conflict with the Alabama Supreme Court’s opinion in Ex parte Seymour, 946 So.2d 536 (Ala.2006). For the reasons set forth in Taylor v. State, 953 So.2d 429 (Ala.Crim.App.2006), we agree.

In Taylor, we analyzed the effect of Ex parte Seymour on Ex parte Cole as follows:

“Until recently, a trial court lacked subject-matter jurisdiction to adjudicate a defendant guilty of a lesser-included offense based on an amended indictment if the original indictment charging the offense omitted an element of the lesser-included offense. Ex parte Cole, 842 So.2d 605 (Ala.2002). However, on June 30, 2006, the Alabama Supreme Court decided the matter of Ex parte Seymour, 946 So.2d 536 (Ala.2006). In Seymour, the Supreme Court overruled Ex parte Lewis, 811 So.2d 485 (Ala.2001), Ash v. State, 843 So.2d 213 (Ala.2002), ‘and other Alabama cases [that] have held to the contrary.’ Seymour, 946 So.2d at 539. In doing so, the Court opined:
“ ‘The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case. A defendant who challenges a defective indictment is thus subject to the same preclusive bars as one who challenges any other nonju-risdictional error, such as illegal seizure or a violation of the Confrontation Clause.’
946 So.2d at 539. Although the Supreme Court did not specifically list Ex parte Cole, supra, as one of the cases it was overruling in Seymour, it also overruled ‘other Alabama cases [that] have held to the contrary.’ 946 So.2d at 539. Therefore, we read Seymour to overrule Ex parte Cole.
“Taylor’s sole argument on appeal is that the indictment is defective for failing to include an element of the lesser-included offense to which he pleaded guilty. He further argues that the defect divests the trial court of subject-matter jurisdiction. However, the Supreme Court held in Ex parte Seymour ‘that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment.’ 946 So.2d at 539. Taylor is therefore not entitled to any relief.”

953 So.2d at 430-31 (footnote omitted).

In light of the Alabama Supreme Court’s decision in Ex parte Seymour, which was released on the same day we released our opinion on return to remand in this case, and this court’s decision in Taylor, we conclude that the trial court did have jurisdiction to accept the appellant’s guilty plea to second-degree robbery. Accordingly, we grant the State’s application for a rehearing and affirm the circuit court’s judgment denying the appellant’s Rule 32 petition.

APPLICATION FOR REHEARING GRANTED; AFFIRMED.

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


author: WISE, Judge.

text:
    STATE of Alabama v. Harold Prince WHITE.
    CR-05-0034.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.

      Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellant.
    Jeffrey B. Austin, Florence, for appellee.
   WISE, Judge.

The State appeals from the trial court’s order granting a motion to dismiss the indictment charging the appellee, Harold Prince White, with trafficking in cocaine, a violation of § 13A-12-231, Ala.Code 1975; possession of marijuana in the second degree, a violation of § 13A-12-214, Ala. Code 1975; and two counts of unlawful distribution of cocaine, violations of § 13A-12-211, Ala.Code 1975.

The trial court dismissed the indictment on the grounds that White was denied his right to a speedy trial. The State argues that the trial court erroneously allowed White to make his showing of prejudice in an ex parte hearing without the State’s being afforded an opportunity to respond to White’s claims of prejudice and, further, that the trial court erred in determining that White’s Sixth Amendment right to a speedy trial had been violated. White argues that the motion was properly granted and that the ex parte proceedings were necessary to protect his constitutional rights.

On March 23, 2002, White was arrested by officers working with a confidential informant after he allegedly sold cocaine to the informant on two occasions; he posted bond and was released that same day. On June 27, 2005, the grand jury returned the indictment. On July 6, 2005, White filed a motion to dismiss on speedy-trial grounds. On September 28, 2005, the State filed a response to White’s motion to dismiss, arguing that White had waived his right to a speedy trial by failing to assert his right until July 6, 2005; that the delay in issuing the indictment was caused by the investigation of and subsequent prosecution in the federal court of the arresting officer for improprieties involving confidential informants, including the informant used in the drug purchases that formed the basis for the charges against White; and that White was not prejudiced by the delay. On September 28, 2005, the trial court conducted an evidentiary hearing on White’s motion to dismiss on speedy-trial grounds and on White’s motion to suppress certain evidence. After hearing the bulk of the argument on White’s speedy-trial motion, the trial court allowed White to present his showing of prejudice ex parte. On September 30, 2005, the trial court issued an order granting White’s motion to dismiss because he had been denied his right to a speedy trial. This appeal followed.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court set forth four factors that a court must weigh when reviewing a speedy-trial claim: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right to a speedy trial; and (4) the degree of prejudice the accused suffered because of the delay.

A. Length of Delay

“In Alabama, ‘[t]he length of delay is measured from the date of the indictment or the date of the issuance of an arrest warrant — whichever is earlier — to the date of the trial.’ Roberson [v. State], 864 So.2d [379,] 394 [(Ala.Crim.App.2002)]. Cf. § 15-3-7, Ala. Code 1975 (‘A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the offender.’); Rule 2.1, Ala.R.Crim.P. (‘All criminal proceedings shall be commenced either by indictment or by complaint.’).”

Ex parte Walker, 928 So.2d 259, 264 (Ala.2005). The length of the delay acts as the threshold requirement — unless the delay is excessive, the Court need not consider the three remaining Barker factors. See Irvin v. State, 940 So.2d 331, 342 (Ala.Crim.App.2005).

Here, White was initially arrested on March 23, 2002, and the hearing on his motion to dismiss for lack of a speedy trial was conducted on September 28, 2005, a delay of approximately 42 months. The State concedes that this delay was presumptively prejudicial. We agree. See, e.g., Irvin v. State, supra (32-month delay presumptively prejudicial); Lofton v. State, 869 So.2d 533 (Ala.Crim.App.2002) (41-month delay presumptively prejudicial); and Parris v. State, 885 So.2d 813 (Ala.Crim.App.2001) (40-month delay presumptively prejudicial). Thus, we proceed to examine the remaining Barker criteria.

B. Reasons for the Delay

In Ex parte Walker, supra, the Alabama Supreme Court stated:

“The State has the burden of justifying the delay. See Barker, 407 U.S. at 531; Steeley v. City of Gadsden, 533 So.2d 671, 680 (Ala.Crim.App.1988). Barker recognizes three categories of reasons for delay: (1) deliberate delay, (2) negligent delay, and (3) justified delay. 407 U.S. at 531. Courts assign different weight to different reasons for delay. Deliberate delay is ‘weighted heavily’ against the State. 407 U.S. at 531. Deliberate delay includes an ‘attempt to delay the trial in order to hamper the defense’ or ‘ “to gain some tactical advantage over (defendants) or to harass them.” ’ 407 U.S. at 531 & n. 32 (quoting United States v. Marion, 404 U.S. 307, 325 (1971)). Negligent delay is weighted less heavily against the State than is deliberate delay. Barker, 407 U.S. at 531; Ex parte Carrell, 565 So.2d [104,] 108 [(Ala.1990)]. Justified delay — which includes such occurrences as missing witnesses or delay for which the defendant is primarily responsible — is not weighted against the State. Barker, 407 U.S. at 531; Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993) (‘ “Delays occasioned by the defendant or on his behalf are excluded from the length of delay and are heavily counted against the defendant in applying the balancing test of Barker.” ’) (quoting McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981)).”

Ex parte Walker, 928 So.2d at 265.

At the hearing on White’s motion to dismiss, the State presented evidence indicating that the vast majority of the delay was because of an investigation into allegations that David Scogin, the arresting officer and former director of the Lauderdale County Drug Task Force, had been engaged in illegal activity, some of which involved the informant used to allegedly make the controlled drug purchases from White. The evidence further indicated that Scogin pleaded guilty in federal court to three charges stemming from those actions. The trial court made the following findings of fact in its order dismissing the case:

“Mr. David Scogin, then director of the Lauderdale County Drug Task Force, obtained a search warrant for the search of the auto body shop of defendant Harold Prince White on March 23, 2002. According to the warrant of arrest contained in the court file, Mr. Sco-gin found the defendant to be in possession of a quantity of cocaine at the body shop when the warrant was executed on the same date the warrant was obtained. Mr. White was arrested and charged with trafficking in cocaine, as well as unlawful distribution of cocaine based on the sales of cocaine by Mr. White to an informant that were alleged to have occurred on March 20, 22, and 23. Mr. White posted bond and was released shortly after his arrest.
“On June 21, 2002, the defendant requested a preliminary hearing. The District Court Judge entered an order dated January 2, 2004 that, if the defendant had not been indicted, a preliminary hearing would be scheduled for January 29, 2004. There is no indication a preliminary hearing was ever held or that the case was thereafter bound over for action of the Grand Jury.
“Mr. Scogin reported that the office of the Lauderdale County Drug Task Force had been burglarized and the cocaine seized from Mr. White had been stolen. That was subsequently shown to be false. The Department of Forensic Sciences returned two certificates of analysis showing the contraband was submitted to the lab by members of the Drug Task Force on March 27, 2002 and May 3, 2002. All testing was completed on all evidence submitted by January 22, 2004.
“The Alabama Bureau of Investigation [“A.B.I.”] was called upon by the then District Attorney Steve Graham to investigate the alleged burglary of the Drug Task Force office. The inquiry became a general investigation of the activities of the Task Force culminating in a ten count federal indictment of Mr. Scogin, his plea of guilty and incarceration. The drug case against Mr. White was part of the A.B.I. investigation. Handwriting analysis showed that some of the payment vouchers to the undercover informant had been forged by Mr. Scogin.
“District Attorney Steve Graham left office in the fall of 2003. He never presented Mr. White’s case to the Grand Jury or made any effort to bring Mr. White to trial. Mr. Graham was replaced by Mr. Billy Jackson, who served until January of 2005. Mr. Jackson never presented Mr. WTiite’s case to the Grand Jury or made any effort to bring Mr. White to trial. Only after Mr. Connolly took office did the State pursue the prosecution and an indictment was returned June 27, 2005.
“Mr. Scogin was transported from the federal prison for purposes of this hearing. When called upon to testify he invoked his Fifth Amendment rights and refused to answer any questions concerning the procuring of the search warrant. The undercover informant ..., was also present and did testify.”

(C. 51-53.) The trial court further made the following findings regarding the reasons for the delay:

“The State argues strongly that the ongoing investigation into the corrupt practices of the director of the Lauder-dale County Drug Task Force is adequate explanation for the delay. Only after Mr. Scogin was convicted November 2, 2004, did the A.B.I. investigation end — -less than 8 months before the State indictment was returned.
“Mr. Marc McCormick was the lead investigator for the A.B.I. during its inquiry, and he gave testimony at the hearing before this Court. He testified that the forgeries of the payment vouchers to Mr. Johnson, the undercover informant, had no connection with whether Mr. White did or did not sell drugs to the informant or possess drugs on March 23, 2002. The District Attorney’s office was always in possession of its case files and there was no reason, according to Mr. McCormick, for the A.B.I. probe to cause any delay in the prosecution of Mr. White.
“There is no indication that the State deliberately attempted to delay the trial in order to hamper the defense. If anything the successful prosecution of Mr. Scogin in federal court, who was a key witness for the state in this case, would be beneficial for the defense. From the evidence before this Court the delay can only be attributed to the negligence of two prior administrations of the District Attorney’s Office. Mr. Connolly and his staff, to their credit, have been diligent and vigorous in their prosecutorial efforts but they had no control over the lack of effort before January 2005.
“Deliberate delay to frustrate the defense would be weighed heavily against the State. A valid reason would serve to justify appropriate delay.
“ ‘ “Between diligent prosecution and bad-faith delay, official negligence in bringing an accused to trial occupies the middle ground. While not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him .... Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary negligence grows. Thus, our toleration of such negligence varies inversely with its protractedness.... Although negligence is not weighed as heavily against the State as a deliberate attempt to delay the trial in order to hamper the defense, it must nevertheless be weighed against the State “since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.”
‘Barker, 407 U.S. at 531.
“Draper v. State, 886 So.2d 105, [110 (Ala.Crim.App.2002) ].”

(C. 54-55.)

The record supports the trial court’s findings as to the reasons for the delay. There is no indication in the record of deliberate delay by the State in an effort to prejudice White’s defense or to enhance its own case. Thus, while this factor weighs against the State, it does not weigh as heavily as it would have had the delay been found to be an intentional attempt to impair the defense or to enhance the State’s case. See Ex parte Walker, supra.

C. Assertion of the Right

At the hearing on White’s motion to dismiss, the prosecution asserted that the defense had requested a preliminary hearing shortly after White’s arrest but had not followed up after the initial preliminary hearing was continued. The trial court then stated:

“Well, [the district court] case action summary sheet is part of this court file. The dates on that document show 6/21/02 felony first. Prelim requested June 27th, '02 at 1:30. I guess that would be the setting of the prelim. 6/27/02 waived to grand jury, Judge Paseur. And 6/28 copy to DA and attorneys. Then on 1/2/04 there’s an entry by Judge Paseur if Defendant has not been indicted, preliminary is scheduled for 1/29/04 at 1:30. Clerk to notify party. The last entry is 1/6/04 copy to DA and attorneys. Anything else from the State?”

(R. 30.) The record also indicates that White filed a demand for a preliminary hearing on December 29, 2003, and that he filed his motion to dismiss the case for lack of a speedy trial on July 6, 2005, approximately one week after the indictment was returned by the grand jury.

The trial court noted in the order dismissing the case:

“Despite the fact that the defendant was represented by experienced counsel throughout the 3 1/2 year delay he made no motion requesting a speedy disposition of his case. The issue was first raised in his motion to dismiss on July 6, 2005. At the hearing, counsel for the defendant candidly admitted that the delay was helpful to the defense in some respects. The conviction of Mr. Scogin would adversely affect his credibility at trial. It would appear that the defendant and his attorney opted to sit on their rights either because doing so could be beneficial to them or because they hoped the case would never be prosecuted at all.
“A pre-indictment motion for speedy trial would likely have had little effect in speeding the process because this Court has no authority to direct the actions of the Grand Jury, to set its docket or prohibit it from investigating any matter it sees fit. An appropriately timed pre-indictment motion to dismiss the case, if granted, could have precluded further prosecution if the Statute of Limitations had run. The defendant chose not to pursue this strategy and his failure to assert his right to a speedy trial for many months is to be weighed against him in this analysis. The defendant’s post-indictment motion was filed in a timely manner.”

(C. 55-56.)

Our review of the record reveals no assertion of the right to a speedy trial in White’s demand for a preliminary hearing. Thus, the trial court’s conclusion that White did not assert his right to a speedy trial until July 6, 2005, is supported by the record. That White waited until that time “ ‘tends to suggest that he either acquiesced in the delays or suffered only minimal prejudice prior to that date. Stevens v. State, 418 So.2d 212, 214 (Ala.Cr.App.1982).’ Lewis v. State, 469 So.2d [1291,] 1294 [ (Ala.Crim.App.1984) ].” Vincent v. State, 607 So.2d 1290, 1294 (Ala.Crim.App.1992).

D. Prejudice to the Defendant

“Because ‘pretrial delay is often both inevitable and wholly justifiable,’ Doggett [v. United States], 505 U.S. [647,] 656 [(1992)], the fourth Barker factor examines whether and to what extent the delay has prejudiced the defendant. Barker, 407 U.S. at 582. The United States Supreme Court has recognized three types of harm that may result from depriving a defendant of the right to a speedy trial: ‘ “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the [accused’s] defense will be impaired” by dimming memories and loss of exculpatory evidence.’ Doggett, 505 U.S. at 654 (quoting Barker, 407 U.S. at 532, and citing Smith v. Hooey, 393 U.S. 374, 377-79 (1969); United States v. Ewell, 383 U.S. 116, 120 (1966)). ‘Of these forms of prejudice, “the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” ’ 505 U.S. at 654 (quoting Barker, 407 U.S. at 532).”

Ex parte Walker, 928 So.2d at 267.

After the trial court heard evidence and argument from the prosecution and the defense regarding the motion to dismiss on speedy-trial grounds, the trial court heard evidence regarding a separate motion filed by White challenging the sufficiency of the affidavit and search warrant.

The trial court then conducted an ex parte hearing with the defense on the defense’s allegations that White was prejudiced by the delay in bringing the case to trial. At the conclusion of the hearing the trial court dismissed the indictment against White without giving the State any opportunity to rebut the assertions White made during the ex parte hearing.

Although it is clear that a defendant should not be required to divulge prematurely evidence or the intimate aspects of the defense’s trial strategy and that ex parte hearings are sometimes necessary so as not to divulge those aspects, see Ex parte Moody, 684 So.2d 114 (Ala.1996) (allowing for ex parte hearings to determine whether an indigent defendant is entitled to the assistance of an expert witness), this is not the case here. Given the adversarial nature of a speedy-trial claim, an ex parte hearing was inappropriate. Indeed, the applicable caselaw implie-itly recognizes the State’s right to rebut allegations of prejudice raised in speedy-trial claims. See Ex parte Walker, 928 So.2d at 268, quoting Daggett v. United States, 505 U.S. 647, 658 n. 4, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (upon a finding of presumed prejudice, “the burden shifts to the State, which must then affirmatively show that the delay is ‘extenuated, as by the defendant’s acquiescence,’ or ‘that the delay left [the defendant’s] ability to defend himself unimpaired.’ ”); see also Texas v. Munoz, (Tex.Ct.Crim.App.1999) (after the defense has made a prima facie showing of prejudice, the burden shifts to the State to show that there was no considerable prejudice other than that suffered during a normal and inevitable delay).

White’s assertion of prejudice that he sought to conceal from the State was the existence of a witness he learned of from discovery in September 2005, but whom he was unable to locate. Although White was not required to disclose the precise nature of the witness’s testimony to the State during the hearing, we cannot say that he was entitled to conceal the witness’s identity. In order to establish prejudice on the grounds that a witness is no longer available to testify, the defendant is required to identify the witness, rather than making a bare allegation that a witness is no longer available. Indeed, such a bare allegation affords the State no opportunity to rebut the defendant’s claim.

In any event, based on the trial court’s finding that the delay resulted from the negligence of the prosecution team, rather than an intentional delay in an attempt to disrupt or hinder White’s ability to defend against the charges, based on the length of the delay, based on White’s delayed assertion of his right to a speedy trial, and based on the trial court’s finding of specific prejudice necessitating dismissal of the charges, we conclude that the State should have been afforded the opportunity to respond to the allegations of prejudice.

Based on the foregoing, we remand this case for the trial court to conduct a new hearing on the issue of prejudice, at which time both sides shall have the opportunity to present evidence concerning White’s claims that he was prejudiced by the delay in holding his trial. The trial court is instructed to amend its written order, making findings of fact as to each factor of the Barker test, specifically addressing the prejudice factor, then ruling on White’s motion to dismiss for lack of a speedy trial. Due return shall be filed with this Court within 56 days of the date of this opinion. The return to remand shall include the trial court’s written findings, a transcript of the hearing, and any other evidence received by the trial court.

REMANDED WITH DIRECTIONS.

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

      . The confidential informant, whose identity was known to White, testified at the evidentiary hearing on the motion to suppress evidence. White had asserted during his argument regarding his motion to dismiss for lack of a speedy trial that one prejudice he suffered from the delay was that he was not able to locate the informant to call him as a witness at trial. When the informant testified at the hearing on the motion to suppress, the trial court instructed the witness that he had to remain in contact with the parties and to remain available to testify should either party desire.

      . Counsel for White conceded that he knew of the witness before receiving the discovery, but asserted that he learned that she claimed to have been present at one of the transactions only through the discovery provided by the State.

      . Moreover, we note that the arguments in the record discovery indicate only that the witness was present at one of the two drug transactions. Thus, even if the trial court determines on remand that the charge stemming from that specific transaction is due to be dismissed, the remaining charges may or may not remain intact, depending on the specific findings of the trial court on remand. We simply cannot say from the record that dismissal of all of the charges was proper.


author: WISE, Judge. SHAW, Judge,

text:
    Freddie Lee JACKSON v. STATE of Alabama.
    CR-05-1924.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Freddie Lee Jackson, pro se.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM IN PART; DISMISSED IN PART.

McMILLAN, P.J., and COBB, J., concur.

BASCHAB, J., concurs in the result.

SHAW, J., concurs in the result in part and dissents in part, with opinion.

SHAW, Judge,

concurring in the result in part and dissenting in part.

With respect to the two claims that were properly presented in Freddie Lee Jackson’s Rule 32, Ala.R.Crim.P., petition for postconviction relief (i.e., his claim that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he said, the trial court failed to administer the oath to the petit jury and his claim that he was incompetent to stand trial), I agree that the circuit court’s order denying relief was proper and is due to be affirmed. With respect to Jackson’s request for reconsideration of his sentence under § 13A-5-9.1, Ala.Code 1975, as this Court notes in its unpublished memorandum, that claim is not cognizable in a Rule 32 petition, and the circuit court should not have considered it on its merits. Rather, the circuit court should have denied the claim on the ground that it was not cognizable in a Rule 32 petition. See, e.g., Wallace v. State, 959 So.2d 1161 (Ala.Crim.App.2006) (holding that Rule 32 petitioner’s challenge to the validity of his prior convictions was not cognizable in a Rule 32 petition challenging a different conviction and, thus, that the circuit court properly denied the claim). However, it is well settled that if the circuit court is correct for any reason, its judgment will be affirmed by this Court. I would affirm the circuit court’s denial of Jackson’s request for sentence reconsideration on the ground that the claim was not cognizable in a Rule 32 petition and should have been filed separately under the procedure discussed in Holt v. State, 960 So.2d 726 (Ala.Crim.App.2006); therefore, I respectfully dissent from this Court’s dismissal of that portion of the circuit court’s judgment.


author: PER CURIAM.

text:
    Gerard GABRIEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-153.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing Denied Aug. 16, 2007.
    Gerard Gabriel, in proper person.
    Bill McCollum, Attorney General, Orlando, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Gerard Gabriel appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand this case to the trial court for attachment of portions of the record that conclusively refute Gabriel’s claim. With respect to Gabriel’s double jeopardy claim, we affirm the trial court’s order denying his rule 3.800(a) motion.

In his motion to correct illegal sentence, Gabriel raised two claims. First, he alleged that the trial court erred in exceeding the statutory limits, as well as the sentencing guidelines, when it imposed his sentences. The trial court denied Gabriel’s 3.800(a) motion because his sentence was the result of a negotiated plea.

With regard to this allegation, we cannot determine based upon the documents in the record if Gabriel’s sentence exceeds the statutory maximum penalty. The trial court failed to attach written portions of the record conclusively refuting Gabriel’s claim. See Fla. R.App. P. 9.141(b)(2)(D). Consequently, and based upon the State’s proper confession of error on this point, we reverse and remand for further proceedings on this issue. On remand, if the trial court again enters an order summarily denying Gabriel’s post-conviction motion, the trial court shall attach written portions of the record conclusively refuting his claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Second, Gabriel alleged in his 3.800(a) motion that the trial court improperly convicted him of the offenses of murder in the second degree with a deadly weapon and armed burglary, based on the same assault on the same victim, thus violating double jeopardy. However, this double jeopardy claim is not cognizable under Florida Rule of Criminal Procedure 3.800(a) because it attacks Gabriel’s conviction rather than his sentence. See Coughlin v. State, 932 So.2d 1224, 1225 (Fla. 2d DCA 2006).

Accordingly, with respect to Gabriel’s sentencing claim, we reverse and remand this case to the trial court for attachment of portions of the record that conclusively refute his claim. With respect to Gabriel’s double jeopardy claim, we affirm the trial court’s order denying his rule 3.800(a) motion.

Affirmed in part, reversed in part, and remanded for further proceedings.


author: SHEPHERD, J.

text:
    MIAMI-DADE COUNTY and Ian Yorty, etc., et al., Appellant, v. BLUE MOUNTAIN INVESTMENT, INC., Appellee.
    Nos. 3D06-817, 3D06-984.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Rehearing Denied July 18, 2007.
    Murray A. Greenberg, Miami-Dade County Attorney, and Craig E. Leen and Scott D. Fabricius, Assistant County Attorneys; Jorge L. Fernandez, City of Miami Attorney, and Deanna D. Gross Rasco, Assistant City Attorney, for appellant.

      Donald S. Rose, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   SHEPHERD, J.

The City of Miami appeals a trial court order granting Final Summary Judgment invalidating a tax deed held by it and quieting title in Blue Mountain Investment, Inc. We reverse.

FACTS

On June 1, 1991, Miami-Dade County issued a tax sale certificate for non-payment of ad valorem taxes on property owned by Arthur Coleman. Two years later, the County applied for a tax deed pursuant to section 197.502(3) of the Florida Statutes. The application was recorded in the public records, and Coleman as title holder was given notice of the County’s action. See §§ 197.502(4), 197.522(l)(a), Fla. Stat. (1993). When no bidders appeared on the scheduled sale date for the certificate, the land was placed on the “list of land available for taxes” as required by section 197.502(7) of the Florida Statutes (1993). No notice was provided to either Coleman or Blue Mountain of this fact. Thereafter Blue Mountain acquired title to the property from Coleman by quitclaim deed for the sum of $5,000 and recorded the deed. Blue Mountain acknowledges that it knew the ad valorem taxes on the property were delinquent when it received its quitclaim, and further that it took no steps to inquire into or pay the taxes.

Nine months later, after negotiations between Blue Mountain and the City of Miami for the purchase by the City of Miami of Blue Mountain’s interest in the property failed, the City of Miami went directly to Miami-Dade County and obtained a tax deed from the County in return for the payment of taxes as permitted by section 197.502(7). This deed likewise was recorded. The City then filed an action seeking to quiet title. Blue Mountain counterclaimed with its own quiet title action, urging that procedural due process was violated because the County never gave notice of its intent to deal with the City. On cross-motions for summary judgment, the trial court agreed with Blue Mountain and quieted title in Blue Mountain. The City appealed.

Discussion

Section 197.502(7) of the Florida Statutes expressly eschews any obligation of the County to provide notice to a title holder of a proposed or pending sale of property after it has been placed on a list of lands available for purchase for taxes. The statute reads as follows:

On county-held certificates for which there are no bidders at the public sale, the clerk shall enter the land on a list entitled “lands available for taxes” and shall immediately notify the county commission and all other persons holding certificates against the land that the land is available. During the first 90 days after the land is placed on the list of lands available for taxes, the county may purchase the land for the opening bid. Thereafter, any person, the county, or any other governmental unit may purchase the land from the clerk, without further notice or advertising, for the opening bid,.... If the county does not elect to purchase the land, the county must notify each legal titleholder of property contiguous to the land available for taxes, as provided in paragraph (4)(h), before expiration of the 90-day period. Interest on the opening bid continues to accrue through the month of sale as prescribed by s. 197.542.

§ 197.502(7), Fla. Stat. Blue Mountain nevertheless counters that it was entitled to notice because a title search would not have revealed that the property was on the statutory list of lands. Even if true, the fact remains that the County provided all necessary statutory notices to Blue Mountain’s predecessor in title, Coleman. After notice of the tax certificate sale, Coleman was not entitled by statute to any further notices. As the recipient of title from Coleman, Blue Mountain stands in his shoes and receives no greater right by virtue of receipt of the conveyance. See, e.g., U.S. v. 16.33 Acres of Land, 342 So.2d 476, 480 (Fla.1977)(holding that where a landowner conveys his interest in real property, “[i]t follows that [the successor in interest] has no interest of any kind in the parcel”). Blue Mountain received all the process due it under the law.

Reversed.