text:
    Arluster W. KENDRICK v. EARL’S INCORPORATED et al.
    2050717.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      Charles H. Volz III, Montgomery, for appellant.
    Glenn D. Zimmerman, Montgomery, for appellees.
   THOMAS, Judge.

Arluster W. Kendrick (“the employee”) sued Earl’s Incorporated (“the employer”), Earl H. Singleton, Robin E. Singleton, and Lynn Bush, seeking workers’ compensation benefits from the employer; alleging retaliatory discharge by the employer, Earl H. Singleton, and Robin E. Singleton; and alleging that the employer, Robin E. Singleton, and Lynn Bush had deceived and defrauded him by making certain misrepresentations regarding the employer’s liability for workers’ compensation benefits and by promising that the employer would pay for his medical expenses in order to induce him to enter into a settlement with the employer.

The employer moved to dismiss the employee’s action; it appended certain exhibits to its motion. On September 26, 2005, the trial court entered an order indicating that it intended to treat the motion as a motion for a summary judgment, see Rule 12(b), Ala. R. Civ. P., and allowing the parties 21 days to conduct discovery and 6 weeks to submit additional matters to be considered with the motion. On October 5, 2005, the employer filed a motion for a summary judgment with additional materials. The trial court then entered an order setting the summary-judgment motion for a hearing on October 25, 2005. The employee requested a continuance of the October 25 hearing, noting that the trial court had originally permitted the parties until November 7, 2005, to submit additional materials in support of or in opposition to the motion for a summary judgment, without the necessity of a hearing. The trial court then entered an order indicating that the employee’s requested continuance was granted and that the motion for a summary judgment would be submitted “on the pleadings” on November 7, 2005. The employee moved the trial judge to recuse himself on November 4, 2005. The employee submitted his response in opposition to the summary-judgment motion and evidentiary materials on November 7, 2005.

Although the trial court had indicated that it would submit the motion for a summary judgment “on the pleadings” on November 7, 2005, the case-action-summary sheet indicates that the trial court held some sort of hearing on that date. The entry on November 7, 2005, indicates that the employer (and perhaps the other defendants) were in court with counsel, that the employee and his counsel were not present, and that the employee filed additional materials. On November 15, 2005, the trial judge granted the employee’s motion to recuse, and the case was reassigned to another judge.

On November 28, 2005, the employer moved for a dismissal for failure to prosecute, pursuant to Rule 41(b), Ala. R. Civ. P., arguing that the employee’s alleged failure to appear at the summary-judgment hearing and his alleged failure to timely respond to the summary-judgment motion entitled the employer to a dismissal of the case. The trial court set the motion for a hearing on February 15, 2006. When the employee and his counsel failed to appear on that date, the trial court dismissed the action; however, on the employee’s motion, the trial court reinstated the action and reset the hearing on the pending summary-judgment motion and motion to dismiss for lack of prosecution for April 20, 2006. After the hearing, the trial court granted the motion to dismiss filed by “the defendant” and entered a judgment on the pleadings in favor of “the defendant.” The employee appealed the judgment to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

Although neither party raises the issue of jurisdiction to this court, we take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala.Civ.App.2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing to several cases noting that rule). An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.

The only movant listed in the motion for a summary judgment and in the motion to dismiss for lack of prosecution is the employer; the individual defendants filed nothing indicating that they desired to join in the motion filed by the employer. Thus, the claims alleging that Robin E. Singleton and Lynn Bush defrauded and deceived the employee and that Earl H. Singleton and Robin E. Singleton had participated in the employee’s alleged retaliatory discharge have not been adjudicated. Because the judgment does not resolve all issues or determine the rights and liabilities of all the parties and because the record does not contain a Rule 54(b) certification, the judgment is not final, and will not support an appeal.

In light of our disposition of this appeal, the employee’s motion to strike the brief of the employer is denied.

APPEAL DISMISSED.

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


source: Caselaw Access Project

author: WISE, Judge. BASCHAB, Judge,

license: Public Domain

text:
    Gweneth Douglas POWERS and Anthony Powers v. STATE of Alabama.
    CR-05-0489.
    Court of Criminal Appeals of Alabama.
    Nov. 3, 2006.
    Rehearing Denied Dec. 15, 2006.
    Certiorari Denied Feb. 9, 2007 Alabama Supreme Court 1060501.

      Collins Pettaway, Jr., Selma, for appellants.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   WISE, Judge.

Gweneth Douglas Powers and Anthony Powers were convicted of one count each of first-degree theft by deception, a violation of § 13A-8-3, Aa.Code 1975. They were sentenced to 25 years’ imprisonment; Gweneth Powers’s sentence was to run concurrently with another sentence previously imposed. The Powerses filed a motion for a new trial, which the trial court denied following a hearing. This appeal followed.

The evidence established that on April 30, 2003, Brenda Hawkins Vinson contracted with a lawn service owned and operated by the Powerses to install a sprinkler system in her yard; the agreed-upon price for the installation of the system was $2,000. Vinson testified that she gave the Powers-es a check for $1,200 as a down payment because Anthony Powers told her he needed the money to purchase materials that evening so that he could begin the job the following morning. Vinson testified that she also contracted with Anthony Powers to mow her lawn. She stated that nobody came the day after she signed the contract, but that her yard was mowed two days later and that someone from Alabama One came and marked the gas lines in her yard the following day. Vinson testified that it rained for several days after her lines were marked and that when she spoke with Anthony Powers and asked when the sprinkler system would be installed, he told her he was busy and was behind in his work. Vinson stated that she went out of town for a week and that when she returned no work had been performed on the sprinkler system. She testified that she repeatedly telephoned the Powerses’ office but was told that the Powerses were out of town. Vinson testified that she finally told them that she had paid them $1,200 before the work was started because Anthony Powers told her he was buying the materials needed for the sprinkler system, so she wanted him to bring the materials to her yard. According to Vinson, some materials were brought to her house the second week in May; Vinson characterized the materials, photographs of which were introduced into evidence, as “various odd, nasty, stripped PVC elbows,” and “rusty wrenches and some bent flags ... [a]nd, again, stripped out blue PVC elbows.” (R. 67.) Vinson stated that when she spoke with Anthony Powers, he told her that the items were the materials that were to be used for her sprinkler system.

Vinson further stated that on Tuesday May 27, she spoke with the Powerses at her home and recorded the conversation. She told them that nearly one month had passed since they had executed the contract for the sprinkler system and that she was making what she characterized as a “last-ditch effort” to allow them to perform their end of the contract. The Powerses told her they would be digging the trenches for the sprinkler system within two days, that they would put the pipe in the day after the trenches were dug, and that they would be finished with the front yard by that Friday. Vinson stated that she was having a swimming pool installed in the backyard and that she was supposed to telephone the Powerses two weeks in advance of when that work was to be completed so they could come and install the sprinkler system in the backyard. According to Vinson, Anthony further stated that the pool work being done in the backyard would not affect their work on the sprinkler system in the front yard. Vinson testified that two days later, she came home from work and found some short trench work in her front flower beds, but that nobody came back to continue the work. She stated that she telephoned the Powerses’ office on Monday June 2, to tell them that she wanted her money back. Vinson stated that Anthony refused to give her a refund and that she received a certified letter from the Powerses indicating that they had spent $600 on materials and offering her the remaining portion of her down payment as a $600 credit toward future yard work. Vinson conceded that the back of the contract she signed contained an arbitration clause; she stated that she was unaware of the language on the back of the contract when she signed the contract and that when she noticed it later that evening, she telephoned Anthony to express her concerns. Additionally, Vinson attempted to stop payment on her $1,200 check the following day, but was unsuccessful.

James Ramson testified that he worked for the Powerses during the time the sprinkler system was supposed to be installed at Vinson’s residence. Ramson stated that Anthony told him to take some PVC pipe and elbows to Vinson’s house. Ramson further stated that he and some other workers dug a few trenches and put out some flags at Vinson’s residence before the Powerses sent him to another project. He testified that he did not have any training or experience in installing sprinkler systems.

The State also presented a number of witnesses to testify about similar encounters with the Powerses on other occasions. Jennifer Presley testified that she had hired the Powerses in June 2004 to install a sprinkler system and to perform other landscaping tasks at her home; these tasks included laying sod and putting down topsoil. She testified that she was told that work on the project would commence the following week and be completed in two or three weeks. Presley stated that she made a $3,800 down payment toward the $5,700 contract price. Presley testified that the Powerses mowed the lawn a couple of times and, on July 21, 2004, moved a pile of bricks from her yard; she stated that she paid an additional $100 for the Powerses to remove the bricks. She stated that somebody would periodically come and rake some piles of debris but that there did not appear to be any work performed on the sprinkler project until August. Presley testified that in August, somebody placed flags in the ground where the sprinkler heads were supposed to be located; she further testified that some work was performed on a separate drainage problem along the side of her house. Presley testified that her husband spoke with the Powerses in August and that he was told the sprinkler project would be completed in a couple of weeks. On August 18, someone came and laid some sod in her yard; that person told Presley he had approximately 30 yards of topsoil, an amount that was insufficient to cover the yard. Presley stated that she told the driver that her original quote from Gweneth had been 60 yards of soil, and the driver acknowledged that that amount would be sufficient. She stated that she spoke with the Powerses on August 18 because they had moved some hay bales from the property line that had been temporarily blocking rainwater from draining into the neighbor’s pool; Presley testified that Anthony told her they would begin digging trenches for the sprinkler system the following day. According to Presley, some workmen came on August 19, but, instead of digging trenches for the sprinkler system, they began spreading the topsoil. Presley testified that nobody from the Powerses’ lawn service came back after August 19. She stated that she spoke with an attorney about terminating the contract; the attorney advised her to allow him to send a letter terminating the contract, and she waited approximately one additional week before eventually hiring somebody else to install a sprinkler system at her residence. Presley testified that around September 7-10 Anthony telephoned her “checking on things” (R. 174) at which time she told him that she had hired somebody else to do the work; she stated that Anthony denied receiving a letter from her attorney terminating the contract. Presley testified that she received a letter from the Powerses claiming that $3,753.49 of the initial $3,800 down payment had been spent for the work performed, and that she was being given a credit of $46.51 toward her account with the lawn service.

Nancy Parrish testified that she was employed by the Powerses for approximately one and a half months in 2003. According to Parrish, one of her responsibilities was to provide estimates to customers for requested jobs. She stated that she was not trained in landscaping. Parrish testified that the Powerses told her that in the event that a prospective customer declined to hire them to do the work she was giving an estimate for she was to drop the estimate price as much as was necessary to get the job, and that she was always to get a signed contract and one-half of the contract price up front as a down payment. Parrish stated that initially she was unaware that there was an arbitration clause on the reverse side of the contract; she testified that she asked Gweneth about it only after speaking with Vinson on the telephone, and that Gweneth told her that they would handle Vinson and for her not to worry about the information on the back of the contract because customers never looked at that section of the contract.

Parrish further testified that she got quotes from subcontractors to perform curbing work at Cherokee Middle School, a landscaping project the Powerses had undertaken. She stated that she told the Powerses that Ralph Shaw of Creative Curbing was the lowest bidder, and the Powerses told her to use him to perform the curbing work. Parrish further testified that as she left their office after they told her to hire Shaw she overheard the Powerses laughing; she stated that she thought they might be talking about her so she eavesdropped and heard Anthony say “ ‘It’s not like we’re going to pay that anyway’ or ‘pay him anyway.’ ” (R. 237.) Parrish testified that Shaw completed the work, but he had not been paid by the time she stopped working for the Powerses in May. She stated that on her last day of employment with the Powerses, Shaw came to the office and beat on the door, demanding to be paid. Parrish testified that she telephoned Anthony and put him on the telephone with Shaw; she stated that she heard Shaw and Anthony yelling at each other over the telephone and that Shaw threw the telephone at her, so she locked the door, telephoned the police, and left the office through the back door. Parrish further testified that she was paid for only three days of the month and a half that she was employed by the Powerses.

Ben Jared testified that he hired the Powerses to install a sprinkler system at his residence in October 2001; he stated that he signed a contract for $4,000 and that he made a $2,000 down payment. According to Jared, he initially did not hire the Powerses because he wanted to finish some other work being performed on his house before having the sprinkler system installed, but that they telephoned him and told him they could install the sprinkler system the following week if he would go ahead and sign the contract. Jared stated that they agreed that work would begin around the first of December. Jared testified that after he signed the contract, Gweneth told him they had run into problems and did not know when they would be able to start work on the sprinkler system. Jared stated that after he had made numerous telephone calls asking for a refund of his down payment, somebody began work on December 29; he stated that somebody dug some trenches and put some pipes in, but told him that after December 29, it would be January 2 before any more work would be performed because of the New Year holiday. Jared testified that the contract called for a specific caliber of pump but that the pump that was brought to the site was a lower-power pump. According to Jared, even though the original contract called for the initial down payment and then no further payments until the work was completed, the Powerses told him they would not do any more work until they had been paid more of the money owed on the contract; Jared stated that he paid them an additional $1,000 on January 12 after they assured him that certain progress would be achieved by January 15. According to Jared, no additional work had been performed by January 15, so he engaged in some heated conversations with the Pow-erses. He testified that he told Anthony that he was going to stop payment on the $1,000 check if they did not work on the project on January 16. According to Jared, when he arrived at his residence at the end of the day on January 16, all of the equipment that could be removed was gone, and the remainder “all the sprinkler heads, the control valves — they had been sawed off with a hacksaw and taken with them.” (R. 325.) He stated that he telephoned Anthony and that Anthony told him the equipment had been removed because it would not work on the size of pump that was to be used; Jared said he learned that that was not true, so he stopped payment on the $1,000 check. He testified that he attempted to settle the dispute by arbitration but that Anthony told him that arbitration was useless because he would not comply with the arbitrator’s ruling if he did not agree with the ruling. Jared further testified that he attempted to use the arbitration service of the Better Business Bureau, to which he claimed the Powerses initially agreed but then changed their minds because of some issue they had with that agency. He eventually forwarded the Powerses a list of every approved arbitrator in a 100-mile radius of Florence and told them to pick one of their choosing; they never responded. Jared testified that he was getting desperate so he again reached an agreement with the Powerses for them to continue with the work and he would give a third party an additional $4,390 to hold until the work was completed. Jared stated that the Powerses did not do any additional work on the project by February 13, which was the newly agreed-upon progress date, at which time he terminated their services and hired another company to install the sprinkler system.

Tipper Borden testified that around August 2003 Gweneth telephoned him and asked him to haul some topsoil for a project the Powerses were working on; Borden testified that they agreed that a portion of the work would contain topsoil and a portion would contain dirt. He stated that he hauled 20 truckloads of topsoil and dirt to the site, spread it, and dug trenches and placed pipes in the trenches. He testified that they had orally agreed upon prices for the dirt, but had not discussed the additional work; he stated Gweneth requested that he do the additional work because the Powerses were busy. Borden stated that he provided the Powerses with his invoices for doing the work. According to Borden, Anthony disputed the use of topsoil because topsoil was more expensive than dirt; Borden stated that he agreed to charge the dirt price for the entire amount, lowering the approximately $3,500 bill for the soil and labor to approximately $3,300. Borden testified that he was never paid for the work he performed, despite repeated telephone calls demanding the money.

Craig Thompson testified that he was one of the owners of Thompson and Fisher General Contractors. According to Thompson, his company was hired to perform work at the site of Shoals Behavioral Medicine in April 2004. He stated that he was at the site when he was approached by the Powerses asking if he had hired anyone to do the landscaping. Thompson stated that he had not, and he allowed the Powerses to submit a quote based on the landscaping plan that had been drawn for the project. According to Thompson, the Powerses quoted him a price of $13,789, and they eventually agreed to perform the work for $13,000. Thompson stated that he paid the Powerses $6,500 as a down payment. He stated that the August 10, 2004, contract provided that the Powerses would begin work on August 20, 2004, and complete their work on September 7, 2004. He stated that on September 7, 2004, some grading work had been done on the site, but that only about 10 percent of the agreed-upon work had been performed. According to Thompson, he repeatedly told the Powerses that they needed to finish their work by the deadline. Thompson testified that the Powerses told him one time that their tractor was broken and another time that they were working on another job, and several times they just did not return his telephone calls. Thompson stated that he terminated their contract because they failed to do the job.

Tori Bailey testified that she was the owner and general manager of WZZA radio station in Florence. According to Bailey, Powers Lawn Service purchased advertising from her station in April 2002. Bailey testified that they entered into a one-year contract, which was to be paid in monthly installments. She stated that the Powerses paid the monthly installment in April and again in May but did not pay anything in June, July, or August. According to Bailey, the Powerses told her they were having difficulty with their bank but that the problem would be resolved soon. Bailey testified that she received a check in September, but that that check was returned by the bank; she stated that her bank advised her that the Powerses’ bank had refused to honor the check, so she went to that bank and was told that the check could not be honored. Bailey stated that she informed the Powerses in October that she was discontinuing the advertising because she had not been paid since May.

The defense presented a number of witnesses. Hillard Matthew Smith testified that he was employed with Powers Lawn Service during the spring of 2003. Smith testified that he and another employee did work on installing the sprinkler system at Vinson’s house; he stated that they dug trenches in the flower beds at Vinson’s home with shovels rather than a trencher machine because the shrubbery prevented the use of the machine.

Lynn Murphy testified that she worked for Tallman Company selling PVC pipe and other plumbing supplies. She identified two invoices from Tallman Company indicating that Powers Lawn Service had purchased PVC pipe on July 22, 2002, and on August 20, 2003.

Capt. Jim Heffernan with the Tuscum-bia Police Department testified that he was the investigating officer in the complaint filed by Vinson. He testified that he had used the term “civil matter” when investigating the case, but that he had taken the case to the district attorney for presentation to the grand jury. He testified that he had viewed the tub of parts brought to Vinson’s house for use in the sprinkler system and stated that in his opinion they appeared to be “used” parts.

Gweneth testified that she was an employee of Powers Lawn Service, which she characterized as a sole proprietorship owned by Anthony. She stated that they had performed assorted lawn functions for Vinson before the sprinkler-system job, and that Vinson had read the front and back of the contract before signing it. She stated that they spoke with Vinson on Friday, May 2, and that Vinson told them that all of the underground utility lines had not yet been marked. According to Gweneth, they could not begin digging until all of the lines had been marked. Gweneth testified that it rained a number of days the following week preventing them from working on the sprinkler system. She further testified that their company did not work weekends. Gweneth also stated that they had taken on another job prior to Vinson’s signing the contract, thus requiring them to work on that job first. She stated that they finished the other job and that she and Anthony went to Vinson’s on May 27 and placed flags in the ground where the sprinkler heads were to be located. Gweneth testified that they brought a tub of spare parts to the site to keep for reference or to use for parts. She further stated that Vinson seemed to be pleased with the progress to that point. According to Gweneth, Vinson approached her and Anthony and told them to finish the front and side yards and that she would telephone them after the pool had been installed in the backyard so they could come back and install the sprinkler system in the backyard. Gweneth testified that they told her that they would install the clock and cover the trenches after the system had been completely installed and had been tested — she stated that they did that so that in the event of a leak, they could easily locate the problem rather than having to dig up the system completely.

According to Gweneth, Vinson became angry when they told her they would not finish installing and covering the front and side yards until completing the backyard; Gweneth stated that Vinson told them to leave. Gweneth testified that they complied and that they did not hear from Vinson for approximately one week. Gweneth stated that Vinson telephoned them on June 2 and told them she was going to call the police if they did not give her her money back; Gweneth stated that Anthony told Vinson that their policy did not allow for refunds. According to Gwen-eth, Vinson called them back later that evening and told them she had spoken with the district attorney and that she was going to call the police if they did not give her a refund.

Gweneth testified that they sent Vinson a certified letter on June 3 explaining that she had breached her contract; she stated that the letter further informed Vinson that the company had incurred costs on the sprinkler-system project, including labor and parts, and offered her a credit toward future services for the amount of her down payment in excess of those costs.

Gweneth further testified about the work that had been performed on Jared’s sprinkler system and claimed that the work was progressing smoothly until Jared stopped payment on his check, at which time, she said, they removed their parts and equipment from the site. She further explained the delays on the Thompson project as the result of Thompson’s interference, equipment problems, and weather delays. She stated that they began working on the Presley project and encountered weather delays; according to Gweneth, they telephoned Presley to check the ground conditions and learned that she had gotten somebody else to finish the sprinkler installation. Gweneth testified that she was not a party to the advertising contract between the lawn-service business and Bailey’s radio station even though she had paid for the first two monthly installments with a check drawn from her personal account. With regard to the Borden incident, Gweneth testified that they asked Borden to supply “field dirt” rather than topsoil for the entire project. She conceded on cross-examination that she had previously pleaded guilty to second-degree theft in Colbert County in 1998.

After both sides had rested and the trial court had instructed the jury on the applicable law, the jury returned a verdict finding the Powerses guilty of first-degree theft by deception as charged in the indictment.

I.

The Powerses first contend that the trial court erred when it allowed the State to introduce evidence of collateral acts of misconduct in violation of Rule 404(b), Ala. R.Evid. The State argues that this issue was not preserved for appellate review.

A.

Before trial, the State notified the Powerses of its intent to offer Rule 404(b) evidence; the State averred that it intended to elicit testimony from (1) Jennifer Presley regarding the Powerses’ alleged failure to install a sprinkler system in her yard after she paid a substantial down payment; (2) Ralph Shaw regarding the Powerses’ alleged failure to pay him for some curbing work done on behalf of the Powerses’ lawn business; (3) Craig Thompson regarding the Powerses’ alleged failure to perform landscaping work after he had paid them $6,500 in advance; (4) Ben Jared regarding the Powerses’ alleged failure to finish installing a sprinkler system after he had paid $2,000 toward the project; (5) Tipper Borden regarding the Powerses’ alleged failure to pay for Borden had supplied the Powerses for a landscaping project; and (6) Tori Bailey with WZZA radio station regarding the Powers-es’ alleged failure to pay for radio advertising. The Powerses filed a motion in limine seeking to prohibit the State from introducing evidence of their prior convictions. The Powerses filed a motion in opposition to the State’s notice that it intended to present Rule 404(b) evidence. The State informed the trial court at a pretrial hearing that it did not intend to elicit evidence of Gweneth’s “former convictions out of Lauderdale County.” (R. 12-13.) The State indicated that the Powerses did have other prior convictions, and that it would introduce those convictions into evidence should those prior convictions become relevant. The record is silent as to any ruling by the trial court on the motion in limine or the motion in opposition of the Rule 404(b) evidence.

At trial, Presley testified without objection about her dealings with the Powerses. However, during Nancy Parrish’s testimony, the Powerses objected when the prosecutor began questioning Parrish about estimates she had performed for subcontractors on a curbing job at Cherokee Middle School. The trial court excused the jury and conducted a hearing off the record; once back on the record but still outside the presence of the jury, the following exchange occurred:

“[Prosecutor]: Well, Judge, another thing, a matter that I asked this witness about is the fact that—
“THE COURT: Let the record reflect we are outside the presence of the jury.
“[Prosecutor]: fact that she was not paid for her time there as their secretary. And I have mentioned that to Mr. Powers. He made the suggestion that bankruptcy had been filed as it regards her judgment. She did give a judgment against him. I have instructed her not to go into any details about that she filed civil suit to get her pay. So he’s suggested that the bankruptcy, you know, the automatic stay that’s in place.
“But, your Honor, the automatic stay only prevents her from making any effort to collect that debt. She is stayed from collecting this judgment. It doesn’t prevent her from coming to court under subpoena and testifying that she worked for them and they didn’t pay her.
“MR. POWERS: Well, now, Judge, if he get into that, we going to ask her questions about how she tried to overcharge us. I mean, we going to put that before the jury as well.
“[Prosecutor]: Oh, that’s fine.
“THE COURT: You are entitled to do that.
“MR. POWERS: Okay. Thank you.”

(R. 232-33.) Parrish then completed her testimony without further incident.

After Tipper Borden testified about work he had performed for the Powerses, the State offered copies of Borden’s invoices. Anthony objected on the grounds that the invoices were irrelevant; the trial court admitted the exhibits after the State argued that the evidence was to show “the pattern of deception that the Powers[es] engaged in throughout the business practice.” (R. 374.)

As Gweneth prepared to take the stand, the trial court cautioned her that she would be subject to cross-examination. The prosecutor stated that he intended to question her about, among other subjects, her prior convictions. Gweneth referred to the motion in limine, at which time the prosecutor acknowledged that he had confirmed that Gweneth’s convictions in Laud-erdale County had been set aside, so he did not intend to question her with regard to those matters. The prosecutor further indicated that he did not intend to introduce evidence of pending cases or of Gweneth’s conviction in Franklin County. The prosecutor did, however, advise the court that he intended to question Gwen-eth about her conviction in Colbert County, and Anthony about his conviction in Colbert County if he also took the stand. The trial court informed the Powerses that the State could question them as to those convictions.

“In order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court.” Goodson v. State, 540 So.2d 789, 791 (Ala.Crim.App.1988), abrogation on other grounds recognized by Craig v. State, 719 So.2d 274 (Ala.Crim.App.1998). “When a timely objection at the time of the admission of the evidence is not made, the issue is not preserved for this Court’s review.” Ziglar v. State, 629 So.2d 43, 47 (Ala.Crim.App.1993).

“This court will not review the merits of a motion presented by the appellant at trial unless the court below has issued a ruling adverse to the appellant on the motion. Knight v. State, 623 So.2d 376, 379 (Ala.Cr.App.1993). It is the appellant’s duty to preserve the record for appeal by invoking a ruling from the trial court. White [v. State], 589 So.2d [765] at 766 [ (Ala.Crim.App.1991) ].”

Berryhill v. State, 726 So.2d 297, 302 (Ala.Crim.App.1998).

After reviewing the transcript, the motion in limine regarding the Powerses’ pri- or convictions, the Powerses’ response to the State’s notice of its intent to introduce Rule 404(b) evidence, and the Powerses’ brief and reply brief, it is clear that the specific issue argued on appeal was not preserved for appellate review by a timely objection and an adverse ruling. The Powerses’ argument on appeal challenges the admission of Rule 404(b) evidence involving collateral acts between the Powers-es and other individuals who had unsatisfactory dealings with the Powerses’ lawn business. The trial court granted the Powerses’ motion in limine as to prior convictions, but that motion did not encompass collateral acts of misconduct the State had referenced in its Rule 404(b) notice. The trial court never ruled on the Powers-es’ response to the State’s Rule 404(b) notice.

Further, although the Powerses did object when Tori Bailey was asked about her dealings with the Powerses, Gweneth did not state for the record any grounds and instead asked to approach the bench; the trial court heard the objection off the record, and the trial resumed. (R. 423-24.)

“If counsel makes objections and secures rulings ‘off the record,’ this court cannot consider those rulings. If the trial court hears objections and makes rulings in side-bar conferences only, then the court reporter must be a party to the side-bar conference if the actions of counsel and the court are to be recorded. Our review is limited to matters of record.”

Jefferson v. State, 449 So.2d 1280, 1282 (Ala.Crim.App.1984).

Finally, the Powerses did not object when the State elicited testimony from various witnesses regarding the collateral acts. The only time the Powerses objected on the record about collateral-act testimony came during Borden’s testimony; the trial court correctly denied that objection and allowed the evidence to be admitted into evidence. However, as noted in Part III of this opinion, “[ejvidence of other similar failures to perform may be considered to establish that the defendant never intended to perform the promise made, and the defendant’s fraudulent intent can be inferred from the defendant’s conduct and the circumstances of the case.” Baker v. State, 588 So.2d 945, 947 (Ala.Crim.App.1991), citing Benefield v. State, 469 So.2d 699, 701 (Ala.Crim.App. 1985). The complained-of evidence was clearly admissible, and was not so unduly prejudicial as to outweigh the probative value of the evidence. Thus, even if this issue had been preserved, the Powerses would not have been entitled to any relief because the claim is without merit.

B.

The Powerses further contend that the trial court erred in not giving the jury a limiting instruction as to the purposes for which the testimony was offered and for which it could be considered. However, the Powerses did not request any such limiting instruction, nor did they object to the trial court’s failure to sua sponte offer such an instruction. Thus, this argument is not properly before this Court. See Pardue v. State, 571 So.2d 320 (Ala.Crim.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990).

For these reasons, the appellants are not entitled to any relief on this claim.

II.

The Powerses next argue that the trial court erred in refusing to give their requested jury instructions number two and number four.

The Powerses argued for the first time in their posttrial motions for a new trial that the trial court erred in refusing the requested jury instructions. However, Rule 21.3, Ala.R.Crim.P. states:

“No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

(Emphasis added.)

Here, the only objection contained in the record that was raised by the Powerses before the jury began deliberations involved Gweneth’s request that the trial court replace one of the jurors with the alternate based on Gweneth’s contention that that juror had been sleeping during part of the trial. Thus, because the Pow-erses did not object to the trial court’s refusal to give the instructions before the jury began its deliberations, the Powerses did not preserve this argument for our review. See Douglas v. State, 900 So.2d 1271, 1273 (Ala.Crim.App.2004); Bullock v. State, 697 So.2d 66 (Ala.Crim.App.1997).

In any event, the Powerses were not entitled to have the requested instructions read to the jury. “The trial court is vested with broad discretion in formulating its charge, so long as it accurately reflects the law.” Clark v. State, 621 So.2d 309, 324 (Ala.Crim.App.1992). “A trial court has broad discretion in formulating its jury instructions, providing they are an accurate reflection of the law and facts of the case.” Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986). A trial judge does not err in refusing requested charges, when its oral charge substantially covers the requested charges. See Adams v. State, 659 So.2d 224, 228 (Ala.Crim.App.1994) (citing Rule 21.2, Ala.R.Crim.P.). With regard to the Powerses’ requested instruction number 4, i.e., that the Alabama Legislature intended to adopt the rationale of the Model Penal Code defining theft, the trial court’s oral instructions clearly, concisely, and accurately defined theft; thus, there was no need to give the Powerses’ requested jury instruction on this point of law. Conversely, with regard to the Powerses’ requested instruction number 2, i.e., that the victim’s consent can warrant acquittal pursuant to Kellett v. State, 577 So.2d 915 (Ala.Crim.App.1990), we note simply that the facts in Kellett involved whether the appellant had modified an insurance policy to provide for an additional commission with or without the consent of the persons responsible for negotiating such changes in the city’s insurance policy. Here, it is uncontested that Vinson gave a check to the Powerses. Thus, her consent is not at issue in that respect. However, for the principles discussed in Kellett to be applicable to this case, there would have had to have been a question of whether Vinson consented to the Powerses obtaining and retaining her property without intending to complete the agreed-upon landscaping work. There was no such evidence; therefore, the Pow-erses’ requested jury instruction on this point of law was properly refused.

III.

Finally, the Powerses contend that the State failed to present any evidence indicating that their actions constituted a criminal act. Specifically, they argue that the incident involved a business deal that went awry and that the matter should have been resolved via civil remedies because, they claim, there was no evidence indicating that they acted with criminal intent.

Section 13A-8-2, Ala.Code 1975, which defines theft of property generally, states:

“A person commits the crime of theft of property if he or she:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property.
“(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property....”

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Further, “ ‘[i]ntent, we know, being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ ” Ex parte C.G., 841 So.2d 292, 301 (Ala.2002), quoting Pumphrey v. State, 156 Ala. 103, 106, 47 So. 156, 157 (1908). Although evidence tending to show intent is usually circumstantial, “[c]ircumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt.” Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992). Finally:

“Section 13A-8-l(l)(f), Code of Alabama 1975, states that deception occurs when a defendant knowingly ‘[p]romises performance which the defendant does not intend to perform or knows will not be performed. Failure to perform, standing alone, however, is not proof that the defendant did not intend to perform.’
“Failure to perform a promise, together with evidence that the promise was made with the intention not to perform rather than merely broken, may support an inference of deceptive intent in a prosecution for theft of property by deception. Benefield v. State, 469 So.2d 699 (Ala.Crim.App.1985). Evidence of other similar failures to perform may be considered to establish that the defendant never intended to perform the promise made, and the defendant’s fraudulent intent can be inferred from the defendant’s conduct and the circumstances of the case. Benefield, supra, 469 So.2d at 701.”

Baker v. State, 588 So.2d 945, 947 (Ala.Crim.App.1991).

Viewing the evidence in the light most favorable to the State, we conclude that the State presented sufficient evidence from which the jury could have reasonably concluded that the Powerses exerted control over $1,200 from Vinson’s account after she had hired the Powerses to install a sprinkler system, that the Powerses failed to complete the agreed-upon work, and that, especially in light of the evidence indicating that the Powerses had other similar failures to perform, the Powerses never intended to perform the agreed-upon work. These actions clearly fall within the definition of theft of property as defined by §§ 13A-8-2 and 13A-8-3, Ala. Code 1975. No basis for relief exists as to this claim.

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

AFFIRMED.

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

BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

I must respectfully dissent. The record in this case does not affirmatively indicate that the trial court advised the appellants about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and does not affirmatively indicate that the trial court advised them that they had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Therefore, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995).

      . The testimony indicated that Alabama One was an entity that came before work involving digging and marked all applicable utility lines buried in the area.

      . Although not contained in the record, the State apparently provided the Powerses during discovery information about the Powers-es’ prior criminal charges and felony convictions.

      . The record indicates that the trial court conducted a charge conference. However, a transcript of that conference is not contained in the appellate record, nor does the record indicate that the Powerses objected at that charge conference to the trial court’s refusal to give the requested jury instructions.

      . It is apparent from reading the transcript and the Powerses' brief that much of their argument is based on the misguided belief that the arbitration clause inserted on the back of their landscaping contract that was signed by Vinson superseded the State’s ability to prosecute individuals for criminal conduct. Suffice it to say the State was not a party to the landscaping contract, and the language contained therein indicating that "all disputes” be handled through arbitration has no bearing on the State’s ability to prosecute the Powerses criminally for their actions.


author: BASCHAB, Judge.

text:
    Billy Dewayne WATERS v. STATE of Alabama.
    CR-05-2108.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Rehearing Denied Feb. 16, 2007.
    David Ray Pace, Anniston, for appellant.
    Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Billy Dewayne Waters, pled guilty to third-degree robbery, a violation § 13A-8-43(a)(1), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of twenty years in prison. See § 13A-5-9 (c)(1), Ala. Code 1975. The appellant filed a motion to withdraw to his guilty plea, which the trial court denied. This appeal followed.

The appellant argues that the trial court erroneously denied his motion to withdraw his guilty plea. Specifically, he contends that the trial court should have allowed him to withdraw his guilty plea after it did not sentence him in accordance with the plea agreement in this case. Rule 14.3, Ala. R.Crim. P., provides, in pertinent part:

“(b) Disclosure of Plea Agreement. If a plea agreement has been reached by the parties, the court shall require the disclosure of the agreement in open court prior to the time a plea is offered. Thereupon, the court may accept or reject the agreement or may defer its decision as to acceptance or rejection until receipt of a presentence report.
“(c) Acceptance or Rejection of Plea Agreements.
“(2) If the court rejects the plea agreement, the court shall:
“(i) So inform the parties;
“(ii) Advise the defendant and the prosecutor personally in open court that the court is not bound by the plea agreement;
“(in) Advise the defendant that if the defendant pleads guilty, the disposition of the case may be either more or less favorable to the defendant than that contemplated by the plea agreement;
“(iv) Afford the defendant the opportunity to withdraw the defendant’s offer to plead guilty;
“(v) Afford the prosecutor the opportunity to change his recommendations; and
“(vi) Afford the parties the opportunity to submit further plea agreements.”

Rule 14.4(e), Ala. R.Crim. P., provides:

“The court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice.”

“Whether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.” Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994).

In this case, the appellant and the State entered into a plea agreement in which the appellant admitted that he had two prior felony convictions and the State agreed to recommend a ten-year sentence split to serve a term of one year. On March 30, 2006, the appellant entered his guilty plea, and the trial court scheduled a sentencing hearing for May 9, 2006. During the hearing on May 9, 2006, the following occurred:

“THE COURT: Billy Waters. Okay, Mr. Waters entered a guilty plea in this case to Robbery Third Degree, a Class C felony. That plea was entered on March 30th, sentencing this date. [Prosecutor], does the State have anything?
“[PROSECUTOR]: Nothing, Your Honor, but the fact that the defendant entered an open plea during the middle of the trial week. At the time, the State placed on the record its recommendation of a 10-year sentence, split to one. And the time from that time, Judge, we have learned that we made that recommendation on the basis of the wrong belief he had two prior felony convictions. We now know that he has more than three prior felony convictions. At a minimum, he has three prior felony convictions, perhaps up to five.
“Therefore, Judge, the State’s recommendation that we placed on the record would be an illegal recommendation to the Court. By your probation report, Mr. Waters, I see at least four prior felony convictions, plus some other cases in Georgia that show no disposition.
“MS. THOMAS: On the bottom of page 3 where it says, ‘One year,’ Sue Frazier of the DA’s office confirmed that would be considered a felony in Georgia, arrest date of 7/21/01, possession of a firearm by a convicted felon.
“THE COURT: Mr. Waters, you represented to the Court when you entered your guilty plea that you had two prior felonies: An arson charge and a controlled substance offense in 1992. Now, you did enter a plea of guilty to the charge contained in the indictment. The punishment range was explained to you based on your representation as to your prior record, but with three or more prior felony convictions, the minimum sentence in Alabama becomes 15 years, the maximum sentence becomes life or 99 years, the maximum fine becomes $20,000. You have still pled guilty to the charge. The only difference is the available punishment range.
“I will leave it up to you. You can either withdraw your guilty plea at this time or you may proceed to sentencing with that explanation in mind that you have those prior felonies.
“Now, if you do not have three or more prior felonies, you need to speak now and let us know that, and then, of course, it will be incumbent upon the State to prove those at sentencing. The choice is yours, sir.
“[DEFENSE COUNSEL]: Mr. Waters says he’s still of the opinion that he has only two felony convictions, and he’s not—
“THE COURT: I’ll reset your sentence hearing for June 28th. The State will file a notice of its intent to proceed against you for sentencing as a habitual felony offender. They will give a statement to you of the charges they expect to prove at sentencing. If they prove those charges, then I will proceed with sentencing; okay? If they do not, we’ll stand where we are. Anything further?
“(END OF PROCEEDINGS)”

(R. 14-16.)

On June 28, 2006, the trial court conducted a sentence hearing. During that hearing, the State introduced certified copies of three prior felony convictions from the State of Alabama and asserted that the appellant had two felony convictions from the State of Georgia. Afterward, the following occurred:

“[DEFENSE COUNSEL]: Mr. Waters would ask permission to withdraw his earlier plea based on-—
“THE COURT: I thought I gave him that opportunity over a month ago?
“[DEFENSE COUNSEL]: You did, Your Honor.
“THE COURT: And he said he did not wish to withdraw it. He said he wished to proceed with sentencing.
“[DEFENSE COUNSEL]: Yes, sir.
“THE COURT: I offered that to him on the 9th of May.
“[DEFENSE COUNSEL]: Right. Yes, sir, Judge, and that’s what he related to me is that was his understanding about the felony situation, and given the fact that it’s been clearly identified, he would like to move to withdraw his plea.
“[DEFENSE COUNSEL]: Your Honor, if the Court could refer to State’s Exhibit Three, the certified copy of his conviction from Jefferson County, I believe in that plea hearing, they sentenced him as a two-time offender in that circuit. So at least in 2004, I can only assume it was brought to the defendant’s attention that he had at least two prior felonies.
“And also, Judge, the State is going to note that the defendant has been revoked — his probation has been revoked in Jefferson County on that case. His case is currently pending revocation in Jefferson County.
“THE COURT: Mr. Waters, you’ve been previously offered by the Court to withdraw your guilty plea. You elected not to do so. You wanted to proceed to sentencing. Your oral motion to withdraw at this point is denied.”

(R. 23-24.) The trial court then sentenced the appellant to serve a term of twenty years in prison.

This court addressed a similar situation in Edwards v. State, 581 So.2d 1260, 1261 (Ala.Crim.App.1991), as follows:

“Edwards also contends that the trial court erred when it failed to sentence him in accordance with a plea bargain agreement, and, thereafter, denied his motion to withdraw his guilty plea. The plea agreement stipulated that if he would plead guilty to the charged offense, the state would recommend, in concurrence with the warden of the Department of Corrections, that Edwards be sentenced, under the Habitual Felony Offender Act, for having two prior felony convictions, to a 10-year prison sentence to run concurrently with the prison sentence he is presently serving. The trial court accepted Edwards’s guilty plea, but sentenced him to 30 years’ imprisonment after discovering from the pre-sentence report that he had four prior felony convictions. Edwards, thereafter, timely filed a motion to withdraw his guilty plea.
“ ‘[I]f there is a plea agreement between a defendant and the State and a breach thereof which is made known to the trial court, and if the trial court does not sentence the defendant pursuant to the terms of the plea agreement (or as alleged in the instant case, that the State makes a sentence recommendation contrary to the plea agreement), then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea. At that point, the trial court must review the circumstances surrounding the making of the plea agreement and determine whether ... a breach occurred. Further, it must decide if the guilty plea rested in any significant degree upon the agreement of the State, so that such can be said to be part of the inducement or consideration and, thus, must be fulfilled. The trial court may hold a hearing and receive testimony to determine the above. Once it makes its findings, the trial court then determines the appropriate remedy, if any. Santobello v. New York, 404 U.S. 257 [92 S.Ct. 495, 30 L.Ed.2d 427] ... (1971); See [Ex parte] Yarber[, 437 So.2d 1330 (Ala.1983) ].’
“Orr v. State, 435 So.2d 182, 184 (Ala.Cr.App.1983). See also Ex parte Otinger, 493 So.2d 1362 (Ala.1986); Blackwell v. State, 556 So.2d 1091 (Ala.Cr.App.1988); English v. State, 56 Ala.App. 704, 325 So.2d 211 (Ala.Cr.App.1975), cert. denied, 295 Ala. 401, 325 So.2d 216 (1976).”

In this case, the trial court informed the appellant that he could withdraw his guilty plea during the hearing on May 9, 2006. However, at that time, the appellant did not have complete information upon which to base his decision because he did not know if the State would be able to prove that he had three prior felony convictions and did not know if the trial court would sentence him in accordance with the plea agreement. Once the State proved the three prior felony convictions and the trial court indicated that it was not going to sentence him in accordance with the plea agreement during the sentence hearing on June 28, 2006, the appellant had the necessary information upon which to base his decision.

At that time, the trial court should have afforded him the opportunity to withdraw his guilty plea. Therefore, the trial court abused its discretion when it denied the appellant’s motion to withdraw his guilty plea. Accordingly, we reverse the trial court’s judgment and remand this case to that court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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


author: SHAW, Judge.

text:
    Rex Earl PILGRIM v. STATE of Alabama.
    CR-04-2300.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      Rex Earl Pilgrim, pro se.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   On Application for Rehearing

SHAW, Judge.

This Court’s unpublished memorandum issued on April 28, 2006, is withdrawn, and the following opinion is substituted therefor.

Rex Earl Pilgrim appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his April 2, 1982, conviction for attempted robbery in the first degree entered pursuant to a guilty plea and his resulting sentence of life imprisonment. Pilgrim stated in his petition that he did not appeal that conviction.

Pilgrim filed this, his fourth, Rule 32 petition on June 9, 2005. In his petition, Pilgrim alleged that his sentence exceeded the maximum authorized by law. Specifically, Pilgrim alleged:

“Petitioner Rex Earl Pilgrim was indicted for Robbery I and on or about April 2, 1982, he plead[ed] guilty to a lesser included offense of Attempted Robbery I which is a ‘Class B’ felony, (which sentence range is 2 years to 20 years).
“The Trial Court sentenced the Petitioner to life in prison. This sentence is illegal because there is nothing in the record to indicate that the Habitual Felony Offender Act was invoked or applied to him.
“There is nothing on the Case Action Summary which shows the H.F.O.A. being applied. See Exhibit # 1.
“There is nothing in the Judgment Entry stating that the Petitioner was sentenced as a habitual offender. Exhibit # 2.
“There is nothing on the Transcript of Record and Conviction Report Form stating that Pilgrim was sentenced as a habitual offender. In fact, the entire record, including the guilty plea colloquy is devoid of any reference to the H.F.O.A. Exhibit # 3.
“Although Pilgrim does have prior convictions that in itself does not prove that he was sentenced as a habitual offender. There is no reference to enhancement and no record of the H.F.O.A. being applied. Barnes v. State, 708 So.2d 217 (Ala.Cr.App.1997) and White v. State, 591 So.2d 591 (Ala.Cr.App.1991).”

(C. 15.) After receiving a response from the State, the circuit court summarily denied the petition on July 15, 2005.

Pilgrim’s claim that the record does not affirmatively show that he was sentenced under the Habitual Felony Offender Act does not have jurisdictional implications and, thus, is subject to the procedural bars in Rule 32.2. See Murray v. State, 922 So.2d 961 (Ala.Crim.App.2005) (Rule 32 petitioner’s claim that the record did not affirmatively reflect that he was sentenced under the Habitual Felony Offender Act is not a jurisdictional claim). Specifically, this claim is barred by Rule 32.2(a)(5), because it could have been, but was not, raised and addressed on appeal; by Rule 32.2(b), because this is a successive petition; and by Rule 32.2(c), because Pilgrim’s petition was filed long after the limitations period had expired. Therefore, summary denial of Pilgrim’s petition was proper.

For the first time on rehearing, Pilgrim argues that he was convicted of an offense — attempted robbery — that does not exist under Alabama law, and that his conviction and sentence are, thus, void. Although generally claims raised for the first time on rehearing are not properly before this Court for review, this claim is jurisdictional, see Conner v. State, 955 So.2d 473 (Ala.Crim.App.2006), and jurisdictional claims may be raised at any time, see Nunn v. Baker, 518 So.2d 711 (Ala.1987).

In Casey v. State, 925 So.2d 1005 (Ala.Crim.App.2005), this Court addressed a similar issue:

“Casey was originally indicted for robbery in the first degree, and on February 28, 1983, he pleaded guilty to attempted robbery in the first degree. He claims that the trial court had no jurisdiction to accept the plea because, he argues, the offense he was charged with and to which he pleaded guilty did not exist under Alabama law. In Petty v. State, 414 So.2d 182, 183 (Ala.Crim.App.1982), this Court said:
“ ‘Because the definition of robbery has been enlarged and expanded by the new criminal code, “the former offense of assault with intent to rob has been merged into the present offense of robbery.” [Marvin v. State, 407 So.2d 576, 579 (Ala.Crim.App.1981).] For this ame reason the former crime of attempted robbery now constitutes robbery. Section 13A-8-43(a) adds a definition that extends robbery to include conduct which occurs in an attempt to commit a theft or in flight after the attempt or commission. Section 13A-8-40(b).’
“The State concedes that because Casey pleaded guilty to an offense that does not exist, his conviction is void and should be set aside. In Ex parte Wesley, 481 So.2d 1162, 1163 (Ala.1985), the Alabama Supreme Court held that the State may reindict an appellant for the appropriate offense of robbery; in Ex parte Wesley, the appellant had previously been charged with robbery in the first degree, but that charge had been amended pursuant to a guilty-plea agreement to charge the non-existent offense of attempted robbery. Thus, while the first indictment was improper and void, the State could properly charge an offense established by the evidence.”

925 So.2d at 1006. See also Conner, supra, and Watkins v. State, 941 So.2d 343 (Ala.Crim.App.2006). Clearly then, if Pilgrim committed the offense after January 1, 1980, the effective date of the Alabama Criminal Code, the trial court lacked jurisdiction to accept his guilty plea to the offense of attempted robbery because, after the effective date of the Criminal Code, attempted robbery was no longer a criminal offense in Alabama.

Although Pilgrim made no allegations in his petition regarding the date of the offense, the record indicates that the offense may have been committed after January 1, 1980. The case-action summary reflects that Pilgrim was arrested on December 31, 1981; that he was indicted on March 5, 1982; and that he pleaded guilty on April 2, 1982. The record also contains a “State of Alabama Board of Corrections Form” entitled “Transcript of Record (Conviction Report)” that Pilgrim attached to his petition. (C. 20.) That document states that the “[o]ffense occurred after May 19, 1980.” (C. 20.)

Because Pilgrim’s claim is jurisdictional and appears to be supported by the record, we must remand this case for the circuit court to address Pilgrim’s claim that he was convicted of an offense that did not exist under Alabama law when it was committed, and to issue specific written findings of fact regarding that claim, including a specific finding regarding the date the offense occurred. The circuit court may either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions pursuant to Rule 32.9(a). If the court determines that the offense was committed after January 1, 1980, it shall grant Pilgrim’s Rule 32 petition and vacate his conviction and sentence for attempted robbery. If the court determines that the offense occurred before January 1, 1980, the court shall so state in its written order. Due return shall be filed with this Court no later than 35 days from the date of this opinion and shall include a transcript of the evidentiary hearing, if one is conducted, any other evidence received by the court, and the circuit court’s specific written findings of fact.

APPLICATION GRANTED; UNPUBLISHED MEMORANDUM OF APRIL 28, 2006, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

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

      . To the extent that Pilgrim intended to argue that he was not, in fact, sentenced as a habitual offender, i.e., that the Habitual Felony Offender Act was never invoked and applied at sentencing, we point out that Pilgrim admitted in a previous Rule 32 petition that he was, in fact, sentenced as a habitual offender. See Pilgrim v. State, (No. CR-04-0425) 925 So.2d 1019 (Ala.Crim.App.2005) (table). Therefore, that claim is meritless.


author: BASCHAB, Judge. SHAW, Judge,

text:
    Rondah GARRETT and Judy Bates Queen v. STATE of Alabama.
    CR-05-1058.
    Court of Criminal Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Denied Feb. 16, 2007.
    Charles Todd Henderson, Columbiana; and Mickey L. Johnson, Pelham, for appellants.
    Troy King, atty. gen., and Stephanie N. Morman and Marc A. Starrett, asst, attys. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM. NO OPINION.

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

SHAW, Judge,

concurring specially.

In State v. Ted’s Game Enterprises, 893 So.2d 355 (Ala.Civ.App.2002), aff'd, 893 So.2d 376 (Ala.2004), the Alabama Court of Civil Appeals, analyzing the meaning of the word “skill” within the context of the limiting effect of § 65, Ala. Const, of 1901, on the authorization of lotteries, noted:

“[T]he mere fact that the outcome of a game, either in a single play or over multiple plays, can be affected by. an understanding of the laws of probability or an understanding of the rules of the game, or can be affected by other recognizable techniques or knowledge, does not change the fundamental nature of that game. Simply put, a player’s understanding of the rules or of the laws of probability relating to a game of chance does not change the fact that he is playing a game of chance. A player may be ‘skilled’ at ‘playing the odds,’ but he is still ‘playing the odds.’ ”

893 So.2d at 375.

I agree with the majority that “Texas Hold’em” poker is fundamentally a game of chance, in that the outcome of the game ultimately depends on a random draw of the cards. I do not disagree with the appellants’ argument that a person must possess a certain amount of experience and skill in order to be a successful “Texas Hold’em” poker player. However, a player’s skill does not change the fundamental nature of the game. As the Court of Civil Appeals noted, “[a] player may be ‘skilled’ at ‘playing the odds,’ but he is still ‘playing the odds.’ ” 893 So.2d at 375. Because “Texas Hold’em” poker is, in my view, chance predominant, I agree with the majority that the appellants’ convictions for promoting gambling, in violation of § 13A-12-22, Ala.Code 1975, are due to be affirmed.


author: RAMIREZ, J.

text:
    COASTAL SYSTEMS DEVELOPMENT, INC., Appellant, v. BUNNELL FOUNDATION, INC., Appellee.
    Nos. 3D06-1188, 3D06-982.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 26, 2007.
    Holland & Knight and James D. Wing, Miami, for appellant.

      Katz Barron Squitero Faust and Bernard Allen, Miami, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   RAMIREZ, J.

The defendant, Coastal Systems Development, Inc., appeals the trial court’s non-final order denying its motion to compel arbitration. Coastal also appeals the trial court’s non-final order denying its motion to compel mediation, for stay pending arbitration and to strike notice for trial. The cases were consolidated for appeal. We now affirm the order denying Coastal’s motion to compel arbitration and dismiss the second appeal.

This action arose out of a contract between Coastal Systems Development, Inc. and Bunnell Foundation, Inc. The contract provided that upon completion of the Bro-ward County Beach Restoration Project, the parties would share equally in all profits earned. Coastal refused to provide any financial information to Bunnell regarding profits, so Bunnell sued Coastal on March 15, 2004. Coastal moved to dismiss based on the mediation provision contained in the contract. The motion did not indicate that the action was subject to arbitration proceedings. Neither did Coastal’s amended motion to dismiss seek arbitration.

On June, 2, 2004, the trial court heard Coastal’s motion to stay the proceedings pending mediation and denied it because Coastal would not provide Bunnell with a copy of Coastal’s audit of the project, nor a breakdown of the expenses incurred by Coastal in connection with the project. The trial court reasoned that Bunnell could not determine the profits making mediation useless without Coastal’s production of the requested documents.

Coastal then filed an Answer and Affirmative Defenses to the complaint, together with a counterclaim for breach of contract and breach of fiduciary duty. Arbitration was not mentioned. Prior to filing this Answer, Coastal did not seek to compel arbitration, but it had begun to conduct discovery. Coastal later filed an Amended Answer, Affirmative Defenses and Counterclaim filed on July 6, 2004, which also failed to seek arbitration.

On August 17, 2004, pursuant to court order, Coastal’s previous counsel was substituted by another law firm. New counsel filed a motion to compel mediation, even though the trial court previously had ruled on the issue when it entered its June 2, 2004 order. Coastal also sought to stay the action pending arbitration and to strike Bunnell’s Notice of Trial, but did not specifically request the court to order arbitration. The trial court denied the motion by virtue of the order of June 2, 2004. Finally, on April 19, 2006, approximately three years after Bunnell filed its action against Coastal, Coastal moved to compel arbitration pursuant to paragraph 13.9 of the contract. The trial court denied Coastal’s motion.

First, the trial court properly denied Coastal’s motion to compel mediation and for stay pending arbitration. This motion had been previously denied. The prior denial of mediation was not an ap-pealable order. Thus, Coastal correctly argues that the prior order was a non-final, non-appealable order.

The second motion requesting mediation also applied for a stay pending arbitration. In essence, Coastal’s renewed request to compel mediation filed on October 21, 2004, was the same as its previous request for mediation filed on August 19, 2004. The request in both motions was that the trial court compel mediation, not arbitration, of the underlying dispute. Both requests sought to abate the action pending mediation, according to paragraph 13.8 of the contract. As that issue was not ap-pealable when previously denied, it is likewise not appealable now. In addition, the parties conceded at oral argument that mediation already has taken place. Accordingly, we dismiss the appeal of the Motion to Compel Mediation, for Stay Pending Arbitration and to Strike Notice of Trial.

As to arbitration, we conclude that the trial court properly denied Coastal’s motion. When ruling on a motion to compel arbitration, under both the Federal Arbitration Act and Florida’s Arbitration Code, the trial court must decide three things: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). Contrary to Coastal’s contention, an effective waiver of the right to arbitrate does not require proof of prejudice. Id. at 711. The trial court was eminently correct in denying Coastal’s Motion to Compel arbitration because Coastal waived that right. Coastal did not seek to compel arbitration in either its Motion to Dismiss and Amended Motion to Dismiss and Motion to Stay Proceedings Pending Mediation filed on April 7, 2004 and May 19, 2004, respectively. It was not until April 19, 2006, two years into the litigation, that Coastal sought to compel arbitration. Coastal waived the right to seek arbitration. Hardin Int’l., Inc. v. Firepak, Inc., 567 So.2d 1019, 1020-21 (Fla. 3d DCA 1990).

In addition, Coastal has waived its right to arbitrate by actively participating in the lawsuit. A party who actively participates in a lawsuit waives the right to arbitration. Doctors Assocs., Inc. v. Thomas, 898 So.2d 159, 162 (Fla. 4th DCA 2005). Here, Coastal did not raise the right to arbitrate in its Answer in its Affirmative Defenses. Where a party defends on the merits by answering the complaint without demanding arbitration, a waiver is deemed to have occurred. Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 427 (Fla. 4th DCA 2003). Coastal also waived its right to arbitrate when it filed its Counterclaim in the underlying action. Owens & Minor Med., Inc. v. Innovative Marketing and Dist. Servcs., Inc., 711 So.2d 176, 177 (Fla. 4th DCA 1998); Coral 97 Assocs., Ltd. v. Chino Elec., Inc., 501 So.2d 69, 70-71 (Fla. 3d DCA 1987). Finally, Coastal proceeded with discovery in the underlying action, which also constitutes a waiver of its right to arbitrate. Winter v. Arvida Corp., 404 So.2d 829, 830 (Fla. 3d DCA 1981) (the court held that a party waived its right to arbitrate by filing an answer and proceeding with discovery before moving to dismiss for failure to arbitrate). See also Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229, 238 (Fla. 3d DCA 1981). In sum, all of Coastal’s actions demonstrate that it waived its right to compel arbitration two years into the proceedings.

We therefore affirm the trial court’s denial of Coastal’s motion to compel arbitration. With respect to the trial court’s denial of Coastal’s non-final order denying Coastal’s motion to compel mediation, for stay pending arbitration and to strike notice for trial, we dismiss the appeal.

Affirmed in part; dismissed in part.

      . Although Coastal’s motion stated that “the Court has previously entered discovery orders in aid of mediation ..referring to the trial court’s ruling on June 2, 2004, it is not reflected in the record. Moreover, the trial court did not order mediation.


author: SUAREZ, J. SHEPHERD, J.,

text:
    L.A.G., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D06-1065.
    District Court of Appeal of Florida, Third District.
    April 11, 2007.
    Rehearing and Rehearing En Banc Denied Sept. 4, 2007.

      Dennis E. Berger, Miami, for appellant.
    Anthony C. Musto, Hallandale Beach; Hillary S. Kambour, Guardian ad Litem, for appellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

L.A.G. appeals the order terminating her parental rights to her three oldest children, M.M., A.M. and Ja.M., and adjudicating her youngest child, Ju.M., dependent. We reverse.

The Department of Children and Families (“DCF”) took custody of L.A.G.’s three oldest children in 2003 due to their parents’ drug abuse. L.A.G. and the father eventually entered residential drug treatment where the mother gave birth to her fourth child, Ju.M. L.A.G. successfully completed the drug program but the father relapsed into drug use. DCF moved to terminate both parents’ rights after L.A.G. allegedly had unauthorized contact with the father and paternal grandmother. The trial court terminated the father’s parental rights following a hearing. He is not a party to this appeal. After further deliberation, the court issued a lengthy written order terminating the mother’s parental rights as to M.M., A.M., and Ja.M., and adjudicating Ju.M. dependent by clear and convincing evidence.

First, we reverse the order terminating L.A.G.’s parental rights to M.M., A.M., and Ja.M. The termination order violates due process because it is based on grounds not asserted in DCF’s petition. DCF petitioned for termination of L.A.G.’s parental rights based on abandonment and her failure to comply with the case plan pursuant to Florida Statutes, sections 39.806(l)(b) and (e). The trial court terminated L.A.G.’s parental rights based on parental conduct that threatens the children’s life or safety, citing Florida Statutes section 39.806(l)(c). DCF did not cite section 39.806(l)(e) in the petition or at the hearing. Nor did DCF present any evidence that L.A.G.’s continued involvement with the children posed a threat to their health or safety. The first time section 39.806(l)(c) appears in this case is in the written termination order.

The trial court violated due process by terminating L.A.G.’s parental rights to her three oldest children without notifying her of the specific grounds upon which termination was based. In the Interest of S.N.W., 501 So.2d 37 (Fla. 1st DCA 1986) (reversing final judgment of permanent commitment where the petition failed to allege present abandonment, abuse or neglect). We are compelled, therefore, to reverse the order terminating L.A.G.’s parental rights to M.M., A.M., and Ja.M. Pittman v. Roberts, 122 So.2d 333, 334-35 (Fla. 2d DCA 1960) (“The appellate court in the interest of justice may take notice of jurisdictional or fundamental error apparent in the record on appeal, whether or not it has been argued in the briefs or made the subject of an assignment of error, objection, or exception in the court below.”).

Absent the due process violation, we would reverse the termination order on the merits because there is no competent substantial evidence to support the trial court’s findings that the mother failed to substantially comply with the case plan. Florida Statutes section 39.806(l)(e) (2006), requires the trial court to find by clear and convincing evidence “that the parent failed to substantially comply with a case plan within twelve months of the court adjudicating the children dependent.” E.R. v. Dep’t of Children & Family Servs., 937 So.2d 1196 (Fla. 3d DCA 2006). “Substantial compliance” means that “the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” § 39.01(71), Fla. Stat. (2006).

The termination hearing is replete with evidence that the mother did substantially comply with her case plan. She successfully completed an in-patient drug treatment program. She consistently tested negative for drug use during her residential program and following treatment. She moved to Tallahassee to live with her parents and has obtained employment and addiction support. The only evidence that the mother deviated from the case plan were two occasions when she had contact with the father and paternal grandmother. These two incidents are insufficient to support a finding that the mother failed to substantially comply with her case plan and to terminate her parental rights. D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798 (Fla. 3d DCA 2006) (evidence did not support TPR where mother made “great strides” by following all DCF’s instructions, except for three alcohol-related incidents, at least one of which involved presence of the child, and one domestic violence incident with the grandmother). We also find that there is insufficient evidence to support the trial court’s conclusion that terminating the mother’s parental rights is the least restrictive means of protecting the children’s health and safety. G.C.A. v. Dep’t of Children & Family Servs., 863 So.2d 476, 480 (Fla. 2d DCA 2004) (finding insufficient evidence that the children could not be reunited gradually with the parents to allow everyone to adjust to the demands of a large family).

Finally, we reverse the portion of the order adjudicating Ju.M. dependent. In order for a dependency adjudication to be affirmed, there must be competent substantial record evidence that the child was either “(1) abused, abandoned, or neglected by the parents; or (2) at imminent risk of being abused, abandoned or neglected by the parents.” J.B. III v. Dep’t of Children & Families, 928 So.2d 392, 394 (Fla. 1st DCA 2006); § 39.01(14)(f), Fla. Stat. (2006). In the instant case, the trial court lumped together Ju.M.’s dependency with the other children’s termination hearing. The evidence is insufficient and factual findings are inadequate to support the conclusion that the mother abused, abandoned, or neglected, Ju.M., or that he is at a substantial risk for imminent abuse, abandonment, or neglect. See J.B. III, 928 So.2d at 393-95 (finding that evidence of the parents’ drug use was insufficient to establish that the child was abused or neglected, or that he was at imminent risk of abuse or neglect). We therefore reverse the adjudication of dependency as to Ju.M.

Reversed.

SHEPHERD, J.,

concurring.

As the majority correctly states, the trial court terminated L.A.G.’s parental rights to three of her four children on a statutory ground of which L.A.G. had no notice until the trial court issued the final judgment. That statutory ground — section 39.806(l)(e), Florida Statutes (2005)— authorizes a court to terminate parents’ rights to their children:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a ... case plan....

§ 39.806(1)(c), Fla. Stat. (2005). The termination of one’s rights to his or her children has been referred to as “the parental death penalty.” See, e.g., Michele R. Forte, Comment, Making the Case for Effective Assistance of Counsel in Involuntary Termination of Parental Rights Proceedings, 28 Nova L.Rev. 193 (2003); State ex rel. S.A.C., 938 So.2d 1107, 1109 (La.Ct.App.2d Cir.2006). The circumstances under which the parental death penalty may issue in Florida are expressly set forth in section 39.806. See I.T. v. State, Dep’t of Health & Rehabilitative Servs., 532 So.2d 1085, 1087 (Fla. 3d DCA 1988) (Chapter 39, Florida Statutes, provides the exclusive means whereby a trial court can declare a child to be dependent). To terminate parental rights under subsection “(c)”, the Department or other person with standing must prove: (1) continuing involvement of the parent in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child; and (2) such involvement will endanger the child or children regardless of any services that may be provided to that parent. In re J.D.C. v. Dep’t of Children & Family Servs., 819 So.2d 264, 267 (Fla. 2d DCA 2002) (reversing an order terminating parental rights where the trial court “made no finding that it would be futile to provide services to [the father] or that J.D.C. would be harmed even if services were provided”) (emphasis added); In re C.W.W. v. State, Dep’t of Children & Family Servs., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001) (to terminate parental rights under section 39.806(1)(e), “the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent”).

In this case, the trial court terminated L.A.G.’s rights to M.M., A.M., and Ja.M., based on two incidents: (1) one wherein L.A.G. contacted the children’s ne’er do well father for a few hours while she was on a day pass from her protective drug rehabilitation center environment at “The Village”; and (2) a call by L.A.G. to the deadbeat dad from a public telephone at a nearby gas station. At the time of the first incident, there was no court order in place prohibiting L.A.G. from seeing the father. By the time of the phone call, an order was in place, which stated, “The mother shall have no contact with the paternal grandmother and the father [].” As to whether the children were present on either occasion, L.A.G.’s Village case manager testified, “We’ve never proved that those children were with [the mother].” Thus, from a legal standpoint, the mother’s parental rights as to M.M., A.M., and Ja.M. were terminated as a result of a phone call. The trial court relied upon this same evidence to adjudicate Ju.M. dependent. Remarkably, the “no contact” order does not even purport to cover Ju.M. All the while, as well-pointed out by the majority, L.A.G. did all that she was required to do under her case plan.

It should require no citation of authority to conclude this evidence is insufficient to satisfy the first prong of section 39.806(c) of the Florida Statutes. By no stretch of the imagination can I conclude that by making a telephone call from a gas station L.A.G. “engaged in conduct toward [her] children that demonstrates that [her] continuing involvement ... in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health” of the children. § 39.806(c), Fla. Stat. (2005). See Y.F. v. Dep’t of Children & Family Servs., 893 So.2d 641 (Fla. 2d DCA) (reversing order terminating parental rights under section 39.806(1)(c) of the Florida Statutes (2003) where Department “did not prove, or even argue that the Mother’s failure to complete [parenting] course threatened child in any way”).

Nor can one conclude, as is required by the second prong of section 39.806(c), that continued interaction between L.A.G. and her children would endanger them regardless of any services provided to her. See In re C.W.W., supra. To the contrary, as stated by the majority, the record is “replete” with evidence that the mother (1) fully complied with her case plan, including successfully completing an in-patient drug treatment program to exorcise the demon that started her down the path to Departmental supervision, and (2) has remained drug-free since that time. The trial court nevertheless sought to turn this good news on L.A.G. by stating that, in her opinion, “the Mother did not comply with her Case Plan, because [she] failed to gain insight or benefit from the services provided” (emphasis added), invoking the aforementioned two incidents in support.

I am unaware of any authority supporting termination on the basis of a “lack of insight” without more. I can conclude only that the trial court’s order is based on speculation that L.A.G. would fail in any attempt to comply with a case plan with a goal of reunification. As the Second District aptly stated in analogous, but less promising circumstances, “Such speculation is not a valid basis for terminating parental rights.” In Re: C.W.W., 788 So.2d at 1023. More to the point, L.A.G.’s Village case manager — himself a former addict — tellingly testified: “Recovery [from a drug habit] is not cut and dry. It is a struggle.” This probably explains the two lapses in judgment that were the focal point of the termination and dependency orders in this case. To terminate the mother’s parental rights in this case would be, in my view, to punish L.A.G. This we cannot do. See In re M.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1193 (Fla.2000) (“The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.”). I believe this case probably is closer to a DCF success story, perhaps as close as it gets, in the difficult field of drug rehabilitation.

To be sure, L.A.G. has not been a perfect mother. Before the filing of the current petition, L.A.G. struggled to throw off her demons. The Department had filed and dismissed an earlier Petition. A substantial history of transgressions had occurred. However, as L.A.G.’s Village case manager testified, L.A.G. moved in with her mother and father in another city and “has a support system in place now.” She has obtained a job and entered an addiction support program. It is quite apparent that L.A.G. has made arrangements to parent her children with parental support in a different environment. According to the Village case manager, “She [is] an excellent mom.” She “fought for [her] kids.” Termination is not appropriate in this case. See D.P. v. Dep’t of Children & Family Servs., 930 So.2d 798 (Fla. 3d DCA 2006) (evidence did not support termination of parental rights where mother had made “great strides” and followed all DCF instructions, except for three alcohol related incidents, including one where it was proven that the child was present).

For these and other reasons evident from the record, it is quite clear that as to M.M., A.M., and Ja.M., the Department did not prove its termination claims by clear and convincing evidence in this case. See I.R. v. Dep’t of Children & Family Servs., 904 So.2d 583, 588 (Fla. 3d DCA 2005). As the majority notes, it appears that the dependency adjudication as to ju.M. simply was “lumped together” with the terminations as an afterthought. See supra p. 727. Generalized adjudications such as this should not be pursued by the Department and likewise should not be countenanced by our trial courts. See In re: S.T. v. Dep’t of Children & Family Sews., 940 So.2d 571, 574 n. 2 (Fla. 2d DCA 2006) (observing “there to be a growing number of appeals in dependency cases in which the Department failed to come forward at trial with the evidence necessary to prove statutory elements as interpreted by case law, and yet the trial court entered an adjudication based on generalized conclusions unsupported by findings of fact”). Therefore, the adjudication of dependency as to Ju.M. also must fail.

I join in the majority in reversing the final judgment below.

      . As the majority notes, DCF originally sought termination of L.A.G.'s parental rights to all four children on two other theories: (1) section 39.806(l)(b) of the Florida Statutes (2005) (authorizing termination based upon abandonment); and (2) section 39.806(l)(e) of the Florida Statutes (2005) (authorizing termination when child has been adjudicated dependent, case plan filed, and abuse continues as evidenced by failure to follow case plan). A cursory review of the record reveals it to be devoid of clear and convincing evidence to support any adjudications on these bases. The trial court did well to ignore them.

      . The Final Judgment also reflects that the trial court was influenced heavily by a belief that it was in the "best interests” of the children to terminate the parental rights of M.M. A.M. and Ja.M. because "it is expected that the Children will achieve permanency through adoption” and because "it is more likely that the Children will enter into a more stable and permanent family relationship as a result of permanent termination of the Mother's parental rights and duties.” However, "neither the law nor the Law” permits us to engage in such unmoored decision-making. See V.J. v. Dep’t of Children & Family Servs., 949 So.2d 1128, 1131 (Fla. 3d DCA 2007) (Schwartz, J. dissenting). See also A.M.T. v. State, 883 So.2d 302, 306 (Fla. 1st DCA 2004) ("An adjudication of dependency is not merely an inquiry by the trial court as to what may be in the best interest of the child. It is an interference with the fundamental right of a parent to raise [his or her] children.”) (internal citations omitted).


author: SCHWARTZ, Senior Judge.

text:
    Gregory Joseph JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1672.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing Denied July 10, 2007.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As in Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007), which involves an indistinguishable factual situation and the identical question of law, we reverse the defendant’s convictions for second degree murder and possession of a firearm by a convicted felon for a new trial on the ground that the then-standard forcible felony exception to self-defense instruction, which essentially negated Johnson’s viable claim of self-defense, was fundamentally erroneous. Accord, e.g., Wilson v. State, 944 So.2d 1244 (Fla. 2d DCA 2006); Williams v. State, 937 So.2d 771 (Fla. 1st DCA 2006); Fair v. State, 902 So.2d 965 (Fla. 4th DCA 2005); Carter v. State, 889 So.2d 937 (Fla. 5th DCA 2004), review denied, 903 So.2d 190 (Fla.2005); cf. Blanton v. State, 956 So.2d 480 (Fla. 5th DCA 2007) (certifying question); Slattery v. State, — So.2d -, 2007 WL 186947 (Fla. 5th DCA Case no. 5D05-4408, opinion filed, January 26, 2007) [32 Fla. L. Weekly D305](same); Zinnerman v. State, 942 So.2d 932 (Fla. 5th DCA 2006)(same).

Reversed and remanded.

      . Our holding applies to this conviction because it was the defendant's contention that he gained possession of the firearm only during permissible acts of self-defense.

      . That portion of the instruction provided: “However, the use of force likely to cause death or great bodily harm is not justifiable if you find: 1. [Gregory Joseph Johnson] was attempting to commit, [or] committing ... [a murder or aggravated battery].... ” After numerous reversals on this ground, the standard jury instruction has since been amended to instruct the trial court as follows: “Give only if the defendant is charged with more than one forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002).” Fla. Std. Jury Instr. (Crim.) 3.6(f); see In re Standard Jury Instructions in Criminal Cases (2005-4), 930 So.2d 612 (Fla.2006); see also In re Standard Jury Instructions in Criminal Cases (2006-3), 947 So.2d 1159 (Fla.2007)(amending Florida Standard Jury Instruction (Criminal) 3.6(g)(Justifiable Use of Non-Deadly Force)).