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

text:
    Bryan McCLELLAND v. SIMON-WILLIAMSON CLINIC, P.C.
    2031075.
    Court of Civil Appeals of Alabama.
    Nov. 4, 2005.
    Certiorari Denied Jan. 13, 2006 Alabama Supreme Court 1050244.

      Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
    Joseph H. Driver and Donald E. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellee.
   THOMPSON, Judge.

Bryan McClelland, M.D. (“the doctor”), sued Simon-Williamson Clinic, P.C. (“the clinic”), seeking workers’ compensation benefits for injuries he claims he sustained on February 7, 2000, in the line and scope of his employment. The clinic answered and denied liability. The clinic later filed a motion for a summary judgment, and the doctor filed a motion for a partial summary judgment as to the issue of workers’ compensation coverage. On April 23, 2004, the trial court entered a summary judgment in favor of the clinic. That judgment stated, in relevant part:

“The undisputed material facts are the following:
“[0]n the morning of February 7, 2000, the [doctor] was seriously injured when his automobile flipped and rolled while he was attempting to avoid another vehicle on U.S. Highway 280 West. The [doctor] was at the time traveling from his home to Shelby Baptist Hospital for morning rounds there.
“The [doctor] owned his vehicle and received no reimbursement from [the clinic] for mileage. His trip to Shelby Baptist was normal and customary; the [doctor’s practice involved making morning rounds there whenever he was working or on call. The [doctor] would typically arrive at the hospital between 6:45 and 8:00 a.m.
“The [doctor]’s employment with [the clinic] was pursuant to an employment agreement. Under this agreement, the [doctor] was obligated to answer calls from or about patients 24 hours a day. The [doctor] was not formally on duty at the time of the accident, however. Under his contract with [the clinic], the [doctor’s standard hours at the clinic were from 9:00 a.m. to 5:00 p.m.
“Before setting out that morning, the [doctor] had received a couple of calls from the hospital about patients. He was at his home when he fielded those calls. It is common for the [doctor] to receive such calls at his home. Further, on the morning of the accident, the [doctor] received a call from his answering service while he was in his automobile and then talked to a patient, directing that the patient meet him at the hospital or the clinic. The doctor, however, was already en route to the hospital when he received the call.
“The calls that the [doctor] received, both at home and while he was in his vehicle, did not necessitate that he make any special trip to the hospital. His trip was not to attend to any emergency; rather, he was simply following his customary practice and routine. The [doctor] received no additional compensation as a result of receiving the calls at home or in his vehicle on the morning of his accident, moreover.
“Alabama’s workers’ compensation laws generally cover ‘injuries by accident arising out of and in the course of the employment.’ § 25-5-1(8), Ala.Code 1975. The ‘arising out of requirement generally involves a causal connection between the injury and the nature of the employment, while the ‘in the course of requirement refers to factors such as the time, place and circumstances of the accident at issue.
“Under these requirements for coverage, an employee injured in an accident on his way to work is generally not covered under the [Workers’ Compensation] Act [§ 25-5-1 et seq., Ala.Code 1975]. See e.g., Terry v. NTN-Bower Corp., 615 So.2d 629, 631 (Ala.Civ.App. 1992). Every rule has its exceptions, as the saying goes, so the focus is whether any such exception applies.
“There are cases that recognize an exception to the rule, and, thus, coverage under the Act, if an employer furnishes the transportation or reimburses the employee for his traveling expenses. Under the facts described above, this Court concludes that the grounds for this exception do not exist here, and the [doctor] does not really argue to the contrary.
“Instead, battle is joined over the question whether the [doctor] was engaged in a duty in connection to his employment while en route to the hospital. In arguing that he was, the [doctor] points to the fact that he was on call and was in communication with patients on his cell[ular] [tele]phone while traveling.
“The fact remains, however, that the [doctor’s travel to the hospital on the day of the accident was pursuant to his normal and routine commute. While he was on call at the time of the accident, the [doctor] was not on duty. His trip on that day, for example, was not the result of a directive by the clinic to make a special trip in order to address some emergency.
“For these reasons, the Court concludes that the [doctor]’s accident falls within the ‘going and coming’ rule, precluding coverage under the workers’ compensation laws. [The clinic]’s motion for summary judgment must accordingly be GRANTED.
“Ulhe [doctor] recognized that this obligation also stems from the applicable medical standard of care.
[The clinic] paid for the [doctor’s [cellular telephone] that was used to make and receive calls while the [doctor] was in his vehicle.”

The doctor timely appeals.

“A party is entitled to a summary judgment when ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. ‘Our review of a summary judgment is de novo.’ Crutcher v. Wendy’s of North Alabama, Inc., 857 So.2d 82, 85 (Ala.2003).”

Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 707 (Ala.2004) (a case in which the parties had filed cross-motions for a summary judgment).

Pursuant to § 25-5-31, Ala.Code 1975, an employee’s injuries are compensa-ble if his accident arose out of and in the course of employment. Although “ ‘ “[cjourts must liberally construe the workers’ compensation law ‘to effectuate its beneficent purposes,’ ... such a construction must be one that the language of the statute ‘fairly and reasonably’ supports.” ’ ” Fort James Operating Co. v. Irby, 911 So.2d 727, 733 (Ala.Civ.App.2005) (quoting Ex parte Weaver, 871 So.2d 820, 824 (Ala.2003), quoting in turn Ex parte Dunlop Tire Corp., 706 So.2d 729, 733 (Ala.1997), quoting in turn Ex parte Beaver Valley Corp., 477 So.2d 408, 411 (Ala. 1985)). Our supreme court has said that “[a]n injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it.” Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955) (emphasis added). Regarding the “going and coming” rule, our supreme court has stated:

“Generally, Alabama law has held that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act because those injuries do not meet the ‘arising out of and in the course of employment’ requirement. See Hughes v. Decatur Gen. Hosp., 514 So.2d 935 (Ala.1987); Exchange Distrib. Co. v. Oslin, 229 Ala. 547, 158 So. 743 (1935); Tucker v. Die-Matic Tool Co., 652 So.2d 263 (Ala.Civ.App.1994); Walker v. White Agencies, Inc., 641 So.2d 795 (Ala.Civ. App.1993); Terry v. NTN-Bower Corp., 615 So.2d 629 (Ala.Civ.App.1992); Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ.App.1987).”

Ex parte Shelby County Health Care Auth., 850 So.2d 332, 336 (Ala.2002). In Ex parte Shelby County Health Care Authority, the supreme court explained that only a few exceptions exist to the “going and coming” rule:

“Alabama courts have carved out only a few exceptions to this general rule:
“ ‘Such exceptions include situations where the employer furnishes the employee transportation or reimburses him for his travel expenses; where the accident occurs on the employer’s property or on public property that is tantamount to the employee’s ingress to and egress from the employer’s property; or where the employee is injured crossing a public street between the main premises of the employer and the parking lot owned by the employer.’
“Terry v. NTN-Bower Corp., 615 So.2d [629] at 631 [ (Ala.Civ.App.1992) ] (citations omitted). See also Meeks v. Thompson Tractor Co., 686 So.2d 1213, 1216 (Ala.Civ.App.1996). An additional exception to the general rule arises when an employee, during his travel to and from work, is engaged in some duty for his employer that is in furtherance of the employer’s business. See Tucker v. Die-Matic Tool Co., 652 So.2d [263] at 265 [ (Ala.Civ.App.1994) ].”

Ex parte Shelby County Health Care Auth., 850 So.2d at 336 (emphasis added). This last emphasized exception is commonly referred to as the “dual purpose” or “dual capacity” exception. See Tucker v. Die-Matic Tool Co., 652 So.2d 263, 265 (Ala.Civ.App.1994).

The doctor first argues that he was “on the job” while traveling to work during his normal commute on February 7, 2000, because, he claims, he was engaged in performing job duties during the commute. The doctor points to the following facts in support of this argument: the clinic required him to take patient calls 24 hours a day, which included the period of time he was traveling to and from work; the clinic paid for the cost of his cellular telephone; the doctor actually used his cellular telephone to respond to a patient’s call during his commute on February 7, 2000; and that call ended within a short time frame before the accident occurred.

However, the doctor concedes in his appellate brief that being on call is not the same as being on duty. See Ex parte Blackmon, 289 Ala. 635, 270 So.2d 108 (1972) (discussed later in this opinion addressing the doctor’s “responding to a call” argument). Further, even if we were to accept that the doctor was actually performing a job duty “in the course of his employment” while he was engaging in the telephone conversation with the patient, it is undisputed that that call was completed before the accident occurred. The doctor did not present any evidence to establish that the use of his cellular telephone was causally related to the accident. Ex parte Trinity Indus., Inc., 680 So.2d 262, 266 (Ala.1996).

Next, the doctor argues that the fact that he had completed the cellular-telephone conversation with the patient before the accident occurred is irrelevant because, he asserts, by engaging in the cellular-telephone conversation with the patient and by further agreeing to meet the patient at the hospital or clinic, his otherwise normal commute was converted into a “dual purpose” trip.

This court has previously addressed the “dual purpose” exception in a number of cases. The general principle of law enunciated in those cases is succinctly stated in Tucker v. Die-Matic Tool, supra, as follows:

“Another exception to the general rule [that injuries sustained in accidents that occur while an employee is traveling to and from work are not covered under the Act] occurs when ‘an employee during his travel to and from work is engaged in some duty for his employer which is in furtherance of the employer’s business.’ Partin v. Alabama Power Co., 615 So.2d 616, 617 (Ala.Civ.App. 1992) (quoting Winn-Dixie Stores, Inc. v. Smallwood,, 516 So.2d 716, 718 (Ala. Civ.App.1987)). This exception, also known as the ‘dual capacity’ or ‘dual purpose’ exception, applies whenever an employee’s travel benefits both the employee and the employer, ‘ “if the trip involves performance of a service for the employer which would have necessitated a trip by someone if the employee had been unable to perform that service in connection with his personal journey.” ’ Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716, 718 (Ala.Civ.App.1987) quoting Eddie Wallace’s Garage v. Arreaga, 406 So.2d 405, 406 (Ala.Civ.App. 1981)).”

Tucker v. Die-Matic Tool Co., 652 So.2d at 265.

In the present case, however, there is no evidence indicating that another doctor would have had to have made a special trip to the hospital or clinic on February 7, 2000, if the doctor had been unable to meet with the patient. Thus, the “dual purpose” exception, as enunciated above, did not convert the doctor’s commute into a “dual purpose” trip.

Lastly, the doctor argues that he was “responding to a call” and, therefore, that he was “on duty.” In Ex parte Blackmon, supra, our supreme court stated:

“There is a difference between being on duty, and being on call. Even though an employee is subject to call, he is not on duty unless it be shown that he has been called and is responding to a duty to his employer in setting out on his trip to the site of his employment.”

289 Ala. at 640, 270 So.2d at 112. In the present case, however, the doctor did not respond to a duty to his employer in setting out on his trip; he was traveling to work as he did on normal occasions. Thus, he was not “responding to a call” within the meaning of Ex parte Blackmon, supra.

Essentially, the doctor is asking this court to expand the “dual purpose” exception to encompass the facts of this case. However, the injuries at issue in this case did not occur “in the course of’ the doctor’s employment merely because the doctor, while “on call,” engaged in and concluded an employment-related telephone conversation with a patient during his normal commute to work. We find no binding precedent requiring us to expand the exception, and we decline to make such a holding today. In so holding, we note that there is no evidence indicating that, in agreeing to meet the patient at the hospital or clinic, the doctor deviated from, or altered, his normal commute from home to work in any manner. There is no evidence indicating that the doctor altered his route or that the patient’s call necessitated his arrival in an expeditious manner. As previously stated, there is no evidence indicating that another doctor would have had to have made a special trip to the hospital or clinic on February 7, 2000, if the doctor had been unable to meet with the patient. Had it become unnecessary for the doctor to meet with the patient at the hospital or clinic before the doctor arrived on February 7, 2000, the doctor would have continued traveling to work that day anyway. This case falls within the general rule “that accidents which occur while the employee is traveling to and from work are not considered ‘arising out of and in the course of his employment.” Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716, 717 (Ala.Civ.App.1987). Accordingly, the judgment of the trial court is due to be affirmed.

AFFIRMED.

PITTMAN and BRYAN, JJ., concur.

MURDOCK, J., concurs specially, with writing.

CRAWLEY, P.J., dissents, with writing.

MURDOCK, Judge,

concurring specially.

The “dual purpose” exception to the “going-and-coming rule” was developed before the advent of cellular telephones. To apply the Workers’ Compensation Act to any routine trip to or from work, merely because sometime during that trip the employee receives a cellular telephone call in which the caller seeks to make or confirm a work-related meeting or appointment with the employee during the ensuing business day, would expand the dual-purpose exception in a manner that would make it qualitatively different than was originally intended.

The quoted passages from Professor Larson and Alabama commentator Terry Moore that are set out in the dissenting opinion are not applicable. The “proper circumstances” that would convert an otherwise personal trip into a business trip covered by the Workers’ Compensation Act are not present in this case. After receiving the telephone call from his patient, Dr. McClelland continued, without any special errands or stops along the way, on his customary route to work. The only effect of the call was to alter slightly the activities in which the doctor would engage after arriving at work.

The dissent also argues that the majority opinion errs when it notes that, after talking to his patient on the telephone, Dr. McClelland did not alter his “normal commute from home to work in any manner.” 933 So.2d at 374. The dissent argues that this “is not a basis for failing to apply the dual-purpose exception to the going-and-coming rule,” because, according to the dissent, “it is the purpose for the trip, not the route of the trip, that is determinative.” 933 So.2d at 374 (Crawley, P.J., dissenting). My point is that the “purpose” of Dr. McClelland’s trip was not altered. The purpose of his travel on the morning in question, from the beginning thereof through its conclusion, was simply to travel from his home along his customary route in order to arrive at his normal place of work at the normal time. (Seeing a patient within the course of his workday was certainly within Dr. McClelland’s normal scope of duties upon arriving at work on a typical day.)

Consistent with the foregoing, but in contrast to the dissenting opinion, I conclude that Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), is a case that supports the main opinion. Adapting the reasoning in Marks’ Dependents to the present case, “[t]he [cellular telephone call] did not bring [Dr. McClel-land] on the journey [to work] or expose him to its risks. If that is so, it is not ‘out of the [cellular telephone call]’ that the injuries arose.” 251 N.Y. at 92, 167 N.E. at 182. Not unlike the situation in Marks’ Dependents with respect to the employer’s request in that case that the employee engage in a work-related activity upon completing his journey, the cellular telephone call received by Dr. McClel-land would have merely resulted in his engaging in certain work-related activities at the conclusion of a trip that he was in the process of making anyway and that was not covered by the Workers’ Compensation Act.

The fundamental test in a workers’ compensation case is whether the “ ‘the rational mind' [is] able to trace the resulting injury to a proximate cause set in motion by the employment and not by some other agency.’ ” Barrett v. Lee Brass Co., 883 So.2d 227, 229 (Ala.Civ.App.2003) (quoting Moesch v. Baldwin County Elec. Membership Corp., 479 So.2d 1271, 1272 (Ala.Civ. App.1985)). In this case, the rational mind cannot trace Dr. McClelland’s injury to the fact that he received the cellular telephone call in question. The rational mind can only trace his injury to the fact that he was simply traveling by automobile in his customary manner on his way to work. This “travel” falls within the “going-and-coming rule.”

CRAWLEY, Presiding Judge,

dissenting.

I believe the majority’s analysis of this case represents a cramped, parsimonious, and formulaic interpretation of the “dual purpose” exception to the “going and coming” rule.

“Every case involving [whether an employee’s injury arises out of and in the course of the employee’s employment] should be decided upon its own particular facts and circumstances and not by reference to some formula.”

Massey v. United States Steel Corp., 264 Ala. 227, 230, 86 So.2d 375, 378 (1955). See also Bell v. General Am. Transp. Corp. 52 Ala.App. 123, 127, 290 So.2d 184, 186-87 (Civ.1973) (stating that “ ‘[w]hether an accident arose out of and in the course of employment must depend upon the facts and circumstances of each case. No exact formula can be set forth which will automatically solve every ease ....”’) (quoting Union Camp Corp. v. Blackmon, 49 Ala. App. 229, 232, 270 So.2d 104, 106, aff'd, 289 Ala. 635, 270 So.2d 108 (1972)).

Judge Murdock’s concurring opinion accurately observes that the dual-purpose exception to the going-and-coming rule was developed before the advent of cellular telephones. However, courts have routinely applied the exception in cases involving other previously unheard-of advances in communication technology, such as radio-dispatched police vehicles, see, e.g:, Montgomery County v. Wade, 345 Md. 1, 7, 690 A.2d 990, 992 (1997), and Botke v. Chippewa County, 210 Mich.App. 66, 533 N.W.2d 7 (1995); and walkie-talkies and pagers, see, e.g., Mayes v. Goodyear Tire & Rubber Co., 144 S.W.3d 50 (Tex.App. 2004). The strength and genius of the common law lies in its ability to adapt to the needs of the society it governs.

Dr. McClelland argues that what began as a purely personal commute to work was converted, en route, into a dual-purpose trip. He maintains that, after he talked with a patient on his cellular telephone and arranged to meet the patient at the hospital or clinic, he was responding to a call and was thereby “on duty” for his employer. See Tucker v. Die-Matic Tool Co., 652 So.2d 263, 265 (Ala.Civ.App,1994)(stating that an “exception to the [going-and-coming rule of noncompensability] occurs when an ‘employee during his travel to and from work is engaged in some duty for his employer which is in furtherance of the employer’s business’ ”) (quoting Partin v. Alabama Power Co., 615 So.2d 616, 617 (Ala.Civ.App.1992)).

Citing Union Camp Corp. v. Blackmon, supra, the majority rejects this theory of the case because, it says, the nature of a trip is determined at the beginning of the journey — upon the employee’s “setting out” — thus implying that a journey cannot be transformed into a dual-purpose trip by anything that occurs en route. Because Blackmon did not present the issue of whether a trip was “converted” or “transformed” by an event en route, the “setting out” language in Blackmon is neither authority for the majority’s conclusion nor a limitation on all dual-purpose journeys. Moreover, both Professor Larson and Alabama commentator Terry Moore unequivocally state that a journey that begins with one purpose may be converted into a dual-purpose journey by an event that occurs en route.

“The dual-purpose nature of the trip need not have existed from the moment the trip was first started. The employee may have embarked on what was intended to be a purely personal vacation trip. If in the course of that trip a business purpose arises and is added by the employer, the trip from that point on will be a business trip if it would have been a business trip up to that point had the same business purpose existed from the start.”

1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 16.05 at 16-9 (2005). See also 1 Terry A. Moore, Alabama Workers’ Compensation § 11:28 at 390 (2004)(stating that “[t]he trip may be transformed into an employment-related activity given the proper circumstances”).

The majority also determines that the journey in this case cannot qualify as a dual-purpose trip because, after Dr. McClelland talked to his patient and arranged to meet the patient at the hospital or clinic, he did not alter his normal commute from home to work in any manner. This is not a basis for failing to apply the dual-purpose exception to the going-and-coming rule. As the name of the exception indicates, it is the purpose for the trip, not the route of the trip, that is determinative. Both the majority opinion and Judge Mur-dock’s concurring opinion fail to recognize the concurrent purposes for Dr. McClel-land’s trip, namely: a routine drive to work and a drive in response to a specific patient’s call. Had the doctor decided to cancel the former purpose, he would still have embarked on the latter purpose.

The majority holds that the dual-purpose exception does not apply in this case because “there is no evidence that another doctor would have had to have made a special trip to the hospital or clinic on February 7, 2000, if [Dr. McClelland] had been unable to meet with the patient.” 933 So.2d at 371 (emphasis added). For this holding, the majority cites the decision in Tucker v. Die-Matic Tool Co., supra, which cites, in turn, Winn-Dixie Stores, Inc. v. Smallwood, 516 So.2d 716 (Ala.Civ. App.1987), and Eddie Wallace’s Garage v. Arreaga, 406 So.2d 405 (Ala.Civ.App.1981). Additional Alabama cases relying on the same rule of law are Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So.2d 666 (1947), and Patterson v. Whitten, 57 Ala. App. 297, 328 So.2d 301 (Ala.Civ.App. 1976). All of those Alabama decisions are based on the seminal case of Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), authored by New York Court of Appeals Chief Judge (later United States Supreme Court Justice) Benjamin Cardozo.

In Marks’ Dependents, the employee Marks was a plumber’s helper who lived and worked in Clifton Springs, New York. When Marks’s wife went to visit relatives in Shortsville, New York, Marks arranged to pick her up at the end of his day’s work. Learning of Marks’s trip to Shortsville, the employer asked Marks to take his tools and repair some faucets at a residence in Shortsville. Marks agreed and drove his personal vehicle in the direction of Shorts-ville. On the way, he was killed in an automobile accident.

Concluding that Marks’s death was not compensable, the New York Court of Appeals reversed an administrative order awarding workmen’s compensation benefits. The court explained:

“[Marks] was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer’s work. He was making it in fulfillment of a promise to call for his wife at the end of the day, and bring her home in the family car. If word had come to him before starting that the defective faucets were in order, he would have made the journey just the same. If word had come, on the other hand, that his wife had already returned, he would not have made the trip at all. The employment did not bring him on the journey or expose him to its risks. If that is so, it is not ‘out of the employment’ that the injuries arose.”

Marks’ Dependents v. Gray, 251 N.Y. at 92,167 N.E. at 182.

It is significant, for purposes of the case now before this court, that Chief Judge Cardozo pointed out that “a different question would arise if Marks, after making the trip to Shortsville, had met with some accident while repairing the defective faucets .... The collision occurred while he was still upon the highway, a mile or less from home.” 251 N.Y. at 93, 167 N.E. at 182-83. In other words, if the employee had met with an accident during the time he was on duty for his employer, the event would have been outside the rule of non-compensability announced in the case. In the case now before this court, Dr. McClel-land had an accident after he talked with a patient on his cellular telephone and arranged to meet the patient at the hospital or clinic — that is, when he was responding to a call and was “on duty” for his employer.

Marks’ Dependents is not authority for the majority’s holding that the dual-purpose exception does not apply in this case without “evidence that another doctor would have had to have made a special trip to the hospital or clinic on February 7, 2000, if [Dr. McClelland] had been unable to meet with the patient.” 933 So.2d at 371 (emphasis added). The oft-quoted and widely accepted test from Marks’ Dependents, upon which the Alabama cases cited by the majority rely, is:

“We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. We cannot draw that inference from the record now before us. On the contrary, the evidence is that a special trip would have been refused since the pay would be inadequate. The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own.... If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Marks’ Dependents v. Gray, 251 N.Y. at 93, 167 N.E. at 183 (emphasis added). The rule espoused in Marks’ Dependents would require only a permissible inference that, if Dr. McClelland had not been going to work anyway that day, he would still have gone to the hospital or the clinic to meet the patient in response to a call. That inference is not only permissible, it is inescapable. Dr. McClelland testified that the medical standard of care, as well as his contract of employment, required him to respond to the patient.

The “someone, sometime” rule referred to in the majority opinion — i.e., that application of the dual-purpose exception would require “evidence that another doctor would have had to have made a special trip to the hospital or clinic on February 7, 2000, if [Dr. McClelland] had been unable to meet with the patient” — is inapplicable here. That rule represents Larson’s gloss on Judge Cardozo’s discussion in Marks’ Dependents. Professor Larson explains:

“[Judge Cardozo] said it was sufficient if the business motive was a concurrent cause of the trip. He then defined ‘concurrent cause’ by saying that it meant a cause which would have occasioned the making of the trip even if the private mission had been canceled. One detail must be stressed to make this rule complete: it is not necessary, under this formula, that, on failure of the personal motive, the business trip would have been taken by this particular employee at this particular time. It is enough that someone sometime would have had to take the trip to carry out the business mission. Perhaps another employee would have done it; perhaps another time would have been chosen; but if a special trip would have had to be made for this purpose, and if the employer got this necessary item of travel accomplished by combining it with this employee’s personal trip, it is accurate to say that it was a concurrent cause of the trip, rather than an incidental appendage or afterthought.”

1 Larson’s Workers’ Compensation Law § 16.03 at 16-4-16-5 (footnotes omitted). Thus, although it was not necessary to the application of the dual-purpose exception that Dr. McClelland carry out the business purpose of meeting a patient in response to a call, it was sufficient.

I would reverse the summary judgment in favor of the employer and render a judgment for Dr. McClelland. Therefore, I dissent.

      . This case was originally assigned to another judge on this court. It was reassigned to Judge Thompson on September 19, 2005.

      . The doctor also sued State Farm Mutual Automobile Insurance Company seeking uninsured-motorist benefits. The clinic filed a motion to sever the doctor’s workers’ compensation claim from his uninsured-motorist claim. On April 18, 2004, the trial court entered a judgment in favor of the doctor on his uninsured-motorist claim and certified that judgment as "final” pursuant to Rule 54(b), Ala. R. Civ. P.


source: Caselaw Access Project

author: COBB, Judge. COBB, Judge. SHAW, Judge, BASCHAB, Judge,

license: Public Domain

text:
    Bobby Frank CHERRY v. STATE of Alabama.
    CR-02-0374.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2004.
    Opinion Denying Rehearing Dec. 17, 2004.
    Certiorari Denied Jan. 7, 2005 Alabama Supreme Court 1040342.

      Frank Myers, Birmingham (withdrew 10/01/2004); and Charles A. Flowers III, Birmingham, for appellant.
    William H. Pryor, Jr., and Troy King, attys. gen., and Marc A. Starrett, asst, atty. gen., for appellee.
   COBB, Judge.

On the morning of September 15, 1963, four young girls, Carole Robertson, Cynthia Wesley, and Addie Mae Collins, all 14 years old, and 11-year-old Carole Denise McNair were downstairs in the ladies’ lounge of the Sixteenth Street Baptist Church in Birmingham, Alabama, preparing to participate in the church’s first Youth Day Service. At approximately 10:22 a.m., a bomb exploded near the church’s 16th Street stairway, resulting in a “high order explosion” that killed Carole, Cynthia, Addie Mae, and Carole Denise, and injured Addie Mae’s sister, Sarah. (R. Vol. 19, 371.) Reverend John Haywood Cross evacuated the church and discovered the victims’ bodies.

In the late 1970s, Robert Edward Cham-bliss was convicted of murder for his involvement in the bombing. Chambliss v. State, 373 So.2d 1185 (Ala.Crim.App.1979). In 2001, Thomas Edwin Blanton was convicted of murder for his involvement the bombing. Blanton v. State, 886 So.2d 850 (Ala.Crim.App.2003). During the May 2000 session of the Jefferson County grand jury, Bobby Frank Cherry was indicted for the murders of Carole, Cynthia, Addie Mae, and Carole Denise.

On May 22, 2002, Cherry was convicted of four counts of murder, violations of Title 14, § 314, Ala.Code 1940. Cherry was sentenced to life in prison on each conviction; those sentences were to run consecutively. Cherry filed a motion for a new trial; the hearing on the motion was continued two times by agreement of the parties. Ultimately, the trial court conducted a hearing on the motion on September 13, 2002, and denied the motion on the same day. This appeal followed. Cherry raises two issues on appeal.

I.

Cherry argues that the trial court erred by denying his motion to dismiss based on the preindictment delay between the 1963 bombing and his indictment in 2000. Cherry contends that he suffered actual and substantial prejudice from the preindictment delay; he also maintains that from the delay the State “intentionally garnered a tactical advantage.” (Appellant’s brief, p. 27.) Cherry raised this argument to the trial court in his motion to dismiss and in his motion for a new trial.

“The Supreme Court held in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), that a defendant’s Sixth Amendment right to a speedy trial applies only to prosecutions formally begun, not to pre-accusation delays. Appellant does not argue a speedy trial violation.
“Since appellant’s prosecution is not barred by the statute of limitations, the possible due process violation must be addressed.
“Although Marion, supra, recognized a due process protection separate from the statute of limitations, the due process clause has a limited role against oppressive delay, United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, cert. denied, Ala., 373 So.2d 1211 (1979), and mere passage of time per se is not a constitutional violation. U.S. v. Lovasco, supra, United States v. Doe, 10th Cir., 642 F.2d 1206 (1981). A defendant is charged with a heavier burden of proof in showing a pre-indictment delay due process violation than in showing a denial of his speedy trial rights. The Marion court requires a showing by defendant of actual prejudice, not the mere possibility of prejudice, and that the delay ‘caused substantial prejudice to ap-pellee’s rights to a fair trial.’ The proof of actual and substantial prejudice due to the loss of potential witnesses must be ‘definite and non-speculative.’ This actual prejudice must be shown and cannot be presumed. Marion, supra; Chambliss, supra.
“The central question becomes whether appellant met the heavy burden of proof by showing an actual and substantial prejudice resulting from the lengthy delay.”
“Moreover, even if appellant had proven actual prejudice, the Supreme Court has held that proof of actual prejudice is generally a necessary but not a sufficient element of a due process claim. Proof of actual prejudice is only the first step. If such proof is given, then the focus turns to the reasons for the delay. Lovasco, supra. Marion held that evidence of an intentional delay by the state to gain a tactical advantage would be a due process violation. Lovasco apparently includes evidence of ‘reckless disregard of circumstances known to the prosecution ... ’ 431 U.S. at 796, n. 7, 97 S.Ct. at 2048 n. 7.”
“In any event, without any proof in the record, we will not assume from the record that the state intentionally delayed to gain a tactical advantage or made a knowingly reckless disregard of appellant’s ability to defend himself. Appellant’s bare allegations of improper tactical delay on the state’s part is insufficient to establish the necessary malevolent purpose. United States v. Medinar-[Arellano], 5th Cir., 569 F.2d 349 (1978).”

Stoner v. State, 418 So.2d 171, 179-80, 181, 182 (Ala.Crim.App.1982).

A. Actual Prejudice

Cherry quotes at length from his motion to dismiss, listing 12 witnesses who “are shown to have direct knowledge and/or involvement in the explosion” and who are now missing or deceased. He contends that the inability to interview these witnesses caused him actually prejudice. He speculates as to the “favorable” testimony of two of those witness: the first, an informant for the Federal Bureau of Investigation (“FBI”), would have testified that, when asked, Cherry stated that he “didn’t know anything about” the bombing (Appellant’s brief, p. 31); and the second, a member of the Ku Klux Klan, would have testified that “he had solved the crime 14 years earlier, but ... it was never brought to trial because too many people in high places would [have been] embarrassed.” . (Id.) Additionally, Cherry lists several other witnesses, all family members of Cherry, and relates the favorable testimony, including alibi testimony, that they “would have been expected to give.” (Appellant’s brief, p. 30.)

“A defendant must not only prove that the preindictment delay prejudiced him, but he must also prove that the resulting prejudice was substantial. Crawford v. State, [342 So.2d 450 (Ala.Crim.App. 1977)]; Arnold v. McCarthy, 9 Cir., 566 F.2d 1377 [(1978)]; United States v. Catano, 5 Cir., 553 F.2d 497 [(1977)].
“A real possibility of prejudice will not suffice, actual prejudice must be shown, and cannot be presumed....
“Arnold v. McCarthy, [566 F.2d 1377 (9th Cir.1978)], holds that the assertion that a missing witness might have been helpful does not establish the actual prejudice required by the decision of the United States Supreme Court in [United States v.] Marion, [404 U.S. 307 (1971)]. Proof of actual prejudice due to the loss of witnesses must be ‘definite and non-speeulative.’ ”

Chambliss v. State, 373 So.2d 1185, 1203 (Ala. Crim. App .1979).

“Merely because appellant alleges that certain dead witnesses would testify for him and in a certain manner does not prove that the potential witnesses would testify in such a manner or even testify at all. We cannot accept such self-serving declarations as proof of actual prejudice resulting from the absence of these witnesses, and the affidavits alone do not satisfy the requirements of [United States v. Marion, 404 U.S. 307 (1971)]. United States v. Hauff, 7th Cir., 395 F.2d 555, 556 (1968); United States v. Mays, 9th Cir., 549 F.2d 670, 674 (1977); U.S. v. Hood, 8th Cir., 593 F.2d 293, 296 (1979), United States v. Revada[,] 10th Cir., 574 F.2d 1047 (1978); United States v. King, 7th Cir., 593 F.2d 269 (1979); United States v. Saunders, 9th Cir., 641 F.2d 659, 665 (1980); United States v. Mills, 9th Cir., 641 F.2d 785, 789 (198[1]); United States v. Surface, 5th Cir., 624 F.2d 23, 25 (198[0]); [s]ee also Judge Barnett’s concurring opinion in United States v. Radmall, 10th Cir., 591 F.2d 548 (1978).”

Stoner, 418 So.2d at 180 (footnote omitted). Therefore, Cherry’s self-serving declarations that some now unavailable witnesses would have given testimony favorable to Cherry are not sufficient to establish that Cherry was actually and substantially prejudiced by the preindictment delay.

B. Intentional Delay

Cherry makes the blanket assertion that the death of “a multitude of witnesses” worked “to the State’s advantage.” (Appellant’s brief, p. 33.) He also asserts, without presenting proof of the assertion at the hearing, that, by “intentionally” failing to prosecute Cherry in the 1970s when Chambliss was prosecuted, the State successfully waited until “the jury changed to the State’s benefit.” (Id.)

“[W]ithout any proof in the record, we will not assume from the record that the state intentionally delayed to gain a tactical advantage or made a knowingly reckless disregard of appellant’s ability to defend himself. Appellant’s bare allegations of improper tactical delay on the state’s part is insufficient to establish the necessary malevolent purpose. United States v. Medina-[Arellano], 5th Cir., 569 F.2d 349 (1978).”

Stoner, 418 So.2d at 182. There is no proof in the record before us that the State intentionally caused the preindictment delay. At trial, defense counsel alleged:

“How do we go about proving that the State deliberately delayed? I mean[,] it was deliberate. I meant,] no one is going to come out and admit that. And I’m not here saying that [the present day prosecutors] made a conscious effort that they weren’t going to prosecute this case until now.”

(R. 82.) We are left, then, with mere bare assertions of intent on the part of the State; without more, Cherry’s argument that the State intentionally caused the preindictment delay is without merit.

In fact, we note that the record supports the State’s assertion that it did not intentionally cause the preindictment delay. The following facts from the trial of Cherry’s codefendant Blanton were equally explored during the hearing in this case:

“[T]he prosecutor explained that the FBI had been involved in the investigation of the case since the 1960s, but that it did not have enough evidence to prosecute [Blanton] federally because it did not have any evidence to show that there had been an interstate transportation of explosives. He further explained that, although the State prosecuted Robert Chambliss for the bombing in 1977 and used some information from the FBI, that prosecution was based primarily on information derived through a separate investigation by the State and that the FBI provided limited information at the insistence of the State based on information the State investigation had revealed. Finally, he explained that the FBI did not share most of the information it had with the State until 1997.”

Blanton, 886 So.2d at 881. The record reflects that the FBI did not cooperate with the State until 1997, a mere three years before Cherry was indicted for the murders. Certainly, three years is not such an egregiously long period of time for the State to investigate and to build its case against Cherry for a crime committed four decades early. This is particularly true in light of the fact that the record reflects that, in 1997, Cherry, who was living in Mabank, Texas, was interviewed by the FBI and by local law enforcement personnel. Shortly after the interview, Cherry held a press conference to declare his innocence. It was this press conference that led a number of witnesses, including Cherry’s granddaughter, to come forward to give law enforcement information about Cherry’s involvement in the bombing. Neither the FBI nor the State had been aware of those witnesses before the press conference.

Finally, there is some inference in Cherry’s argument that he should have been arrested sooner, perhaps at the first hint of his involvement in the bombing. We spoke to this argument in Chambliss, 373 So.2d at 1204:

“As the Court said in United States v. Lovasco, [431 U.S. 783 (1977)], ‘The decision whether to prosecute, therefore, required a necessarily subjective evaluation of the strength of the circumstantial evidence available and the credibility of respondent’s denial. Even if a prosecutor concluded that the case was weak and further investigation appropriate, he would have no assurance that a review-mg court would agree. To avoid the risk that a subsequent indictment would be dismissed for preindictment delay, the prosecutor might feel constrained to file premature charges, with all the disadvantages that entails.’
“The Supreme Court of the United States said in Hoffa [v. United States, 385 U.S. 293, 310 (1966)], and quoted in [United States v.] Marion, [404 U.S. 307, 325 n. 18 (1971)]:
“‘There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.’ ”

Short of proof of an intentional delay on the part of the State to prosecute, we do not second-guess the decisions of law enforcement regarding arrest, and we do not second-guess the prosecution’s decisions regarding indictment.

For the reasons stated above in Parts I.A. and B., we hold that Cherry’s argument that his right to due process was violated by the preindictment delay is without merit.

II.

Cherry also argues that the trial court erred by denying his pretrial motion for a change of venue and his renewed motion for a change of venue made after voir dire was conducted. He cites as reasons for a change of venue the civil rights history of Birmingham, Alabama, and the quantity of media coverage and publicity surrounding the bombings, the previous trials, and his ■ arrest. He also cites a telephone poll conducted by a professor of political science in preparation for Blan-ton’s trial.

“ ‘ “A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case. The trial court has the best opportunity to evaluate the effects of any pretrial publicity on the community as a whole and on the individual members of the jury venire. The trial court’s ruling on a motion for a change of venue will be reversed only when there is a showing that the trial court has abused its discretion. Nelson v. State, 440 So.2d 1130 (Ala.Cr. App.1983).”
‘Joiner v. State, 651 So.2d 1155, 1156 (AIa.Cr.App.1994).’
“Clemons v. State, 720 So.2d 961, 977 (Ala.Crim.App.1996), aff'd, 720 So.2d 985 (Ala.1998). ‘The mere fact that publicity and media attention were widespread is not sufficient to warrant a change of venue. Rather, Ex parte Grayson[, 479 So.2d 76 (Ala.1985),] held that the appellant must show that he suffered actual prejudice or that the community was saturated with prejudicial publicity.’ Slagle v. State, 606 So.2d 193, 195 (Ala. Crim.App.1992). ‘ “Moreover, the passage of time cannot be ignored as a factor in bringing objectivity to trial.” ’ Whisenhant v. State, 555 So.2d 219, 224 (Ala.Crim.App.1988), aff'd, 555 So.2d 235 (Ala.1989) (quoting Dannelly v. State, 47 Ala.App. 363, 364, 254 So.2d 434, 435 (Ala.Crim.App.1971)).
“ ‘In connection with pretrial publicity, there are two situations which mandate a change of venue: 1) when the accused has demonstrated “actual prejudice” against him on the part of the jurors; 2) when there is “presumed prejudice” resulting from community saturation with such prejudicial pretrial publicity that no impartial jury can be selected. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau [v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)]; Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Coleman v. Zant, 708 F.2d 541 (11th. Cir.1983).’
“Hunt v. State, 642 So.2d 999, 1042-43 (Ala.Crim.App.1993), aff'd, 642 So.2d 1060 (Ala.1994).”

Blanton, 886 So.2d at 876-77.

A. Presumptive Prejudice

Cherry argues that, based on the publicity surrounding the trial, we should presume prejudice from the trial court’s denial of his motion for a change of venue. We addressed this same argument, including the results of the same telephone poll, in Blanton:

“We must first determine whether the pretrial publicity resulted in ‘presumptive prejudice.’ For prejudice to be presumed under this standard, the defendant must show: 1) that the pretrial publicity was prejudicial and inflammatory and 2) that the prejudicial pretrial publicity saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985). Under this standard, a defendant carries an extremely heavy burden of proof.
“ ‘[The appellant] relies on the “presumed prejudice” standard announced in Rideau [v. Louisiana, 373 U.S. 723 (1963)], and applied by the United States Supreme Court in Estes [v. Texas, 381 U.S. 532 (1965),] and Sheppard [v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)]. This standard was defined by the Eleventh Federal Circuit Court of Appeals in Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986). The court stated: “Prejudice is presumed from pretrial publicity when pretrial publicity is sufficiently prejudicial and inflammatory and the prejudicial pretrial publicity saturated the community where the trials were held.” 778 F.2d at 1490 (emphasis added [in Hunt]). See also Holladay v. State, 549 So.2d 122, 125 (Ala. Cr.App.1988), affirmed, 549 So.2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107 L.Ed.2d 569 (1989).
“ ‘In determining whether the “presumed prejudice” standard exists the trial court should look at “the totality of the surrounding facts.” Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). The presumptive prejudice standard is “rarely” applicable, and is reserved for only “extreme situations.” Coleman v. Kemp, 778 F.2d at 1537. “In fact, our research has uncovered only a very few ... cases in which relief was granted on the basis of presumed prejudice.” Coleman v. Kemp, 778 F.2d at 1490.
“ ‘[The appellant] had the burden of showing that “prejudicial pretrial publicity” saturated the community. Sheppard, supra. “[T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.” Coleman v. Kemp, 778 F.2d at 1537. “Prejudicial” publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. “Publicity” and “prejudice” are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.
“ ‘... In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, “the appellant must show more than the fact ‘that a case generates even widespread publicity.’ ” Oryang v. State, 642 So.2d 979, 983 (Ala.Cr.App. 1993), quoting, Thompson v. State, 581 So.2d 1216, 1233 (Ala.Cr.App.1991), cert. denied, [502] U.S. [1030], 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
“ ‘ “ ‘Newspaper articles alone would not necessitate a change in venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunci-atory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844 [1945].’ ”
‘Thompson, 581 So.2d at 1233, quoting McLaren v. State, 353 So.2d 24, 31 (Ala.Cr.App.), cert. denied, 353 So.2d 35 (Ala.1977).
“‘A review of the media coverage contained in the record on appeal demonstrates that the majority of print media coverage was reasonably factual and more or less objective. We find that the reportage by the news media did not result in the community being so “pervasively saturated” with prejudicial publicity so as to make the court proceedings nothing more than a “hollow formality.” Ri-deau, supra.’
“Hunt, 642 So.2d at 1043^4. ‘To justify a presumption of prejudice under this standard, the publicity must be both extensive and sensational in nature. If the media coverage is factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice.’ United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir.1990).
“In support of his motion for a change of venue, the appellant introduced evidence concerning a telephone poll of 400 Jefferson County citizens — 200 white and 200 black — about the case. Of the people responding to the poll, 99.3 percent indicated that they had heard about the bombing. Of those who had heard about the bombing, 28.4 percent indicated that they thought the appellant was guilty, 17.0 percent thought the appellant was probably guilty, 2.0 percent thought the appellant was probably not guilty, and 1.2 percent thought the appellant was not guilty. However, a majority, 51.4 percent, were uncertain as to the appellant’s guilt at that time. When the respondents were asked whether they could set aside what they had heard about the case and decide it based solely on the evidence presented in court, a majority, 55.4 percent, indicated that they could set aside what they had heard; 32.7 percent indicated that they could not set aside what they had heard; and 12.0 percent were not certain. The appellant also introduced numerous newspaper articles from local newspapers that covered the case from its inception through the trial.
“Although the appellant presented evidence that indicated that many of the citizens of Jefferson County had heard about the bombing through the media, he has not shown that the information presented by the media was prejudicial. We have examined the media materials he presented to the trial court, and we find that most of the reports were factual and relatively objective rather than accusatory, inflammatory, or sensational. Therefore, we conclude that the materials did not contain prejudicial information. Further, the appellant did not prove that the media attention inflamed or saturated the community so that there was an emotional tide against him. Thus, he has not shown that the pretrial publicity in this case was so inherently or presumptively prejudicial as to constitute one of those ‘extreme situations’ that warrant a presumption of prejudice from pretrial publicity.”

Blanton v. State, 886 So.2d at 877-79. As in Blanton, we find the results of the telephone poll to be noncompelling evidence that the community was saturated with prejudicial pretrial publicity. Additionally, we have examined the pieces of media submitted with the motion for a change of venue, to the extent that they are present in the record, and we have found those to be simply factual, objective, and nonsensational. Therefore, Cherry has not proven that the community was so saturated by prejudicial media coverage that there was an “emotional tide” against him in Birmingham, that is, that he was prejudiced can be presumed from the trial court’s failure to grant his motion for a change of venue.

B. Actual Prejudice

Cherry also argues that the trial court should have granted his renewed motion for a change of venue entered after voir dire because “the jury demonstrated that actual prejudice existed.” (Appellant’s brief, p. 39.) At trial, during his renewed motion, Cherry reiterated that much publicity had surrounded the trial and stated that “[s]ome of the veniremembers here were honest enough to tell us that they were concerned about mob violence, about riots.” Cherry also complained that two jurors knew people who had been arrested “in a protest.” (R. Vol. 17, pp. 17-18.)

“ ‘The “actual prejudice” standard is defined as follows:
“ ‘ “To find the existence of actual prejudice, two basic prerequisites must be satisfied. First, it must be shown that one or more jurors who decided the case entertained an opinion, before hearing the evidence adduced at trial, that the defendant was guilty. Irvin v. Dowd, 366 U.S. [717,] 727, 81 S.Ct. [1639,] 1645, [6 L.Ed.2d 751, 758-59 (1961)]. Second, these jurors, it must be determined, could not have laid aside these preformed opinions and ‘render[ed] a verdict based on the evidence presented in court.’ Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643 [6 L.Ed.2d at 756].”
‘Coleman v. Zant, 708 F.2d [541, 544 (11th Cir.1983)].’
“Hunt [v. State, 642 So.2d 999, 1043 (Ala.Crim.App.1993)].
“ ‘Furthermore, in order for a defendant to show prejudice, the “ ‘proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.’ Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App. 1978).” Ex parte Grayson, 479 So.2d 76, 80 (Ala.1985), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985).’
“Oryang v. State, 642 So.2d 979, 983 (Ala.Crim.App.1993).”

Blanton, 886 So.2d at 879. The record reflects that the trial court dismissed for cause any juror who indicated during voir dire that or she had formed an opinion as to Cherry’s guilt. According to the prosecutor, the remaining members of the veni-re had all heard of the bombing, but maintained that they could and would form their own opinions as to Cherry’s guilt based solely on the evidence presented during the trial. Therefore, Cherry has not shown that any of the jurors were actually prejudiced against him.

For the reasons stated in Part II.A. and B., Cherry’s argument that the trial court should have granted his motions for a change of venue is without merit.

For the reasons stated in the opinion above, Cherry’s convictions and sentences in these four cases are affirmed.

AFFIRMED.

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

On Application for Rehearing

COBB, Judge.

On May 22, 2002, Bobby Frank Cherry was convicted of four counts of murder. The trial court imposed four consecutive life sentences. On appeal, this Court affirmed his convictions and sentences. Cherry v. State, 933 So.2d 377 (Ala.Crim. App.2004).

On October 15, 2004, Cherry filed an application for rehearing in this Court. On November 19, 2004, this Court overruled his application for rehearing. On that same date, Cherry’s attorney filed a “Suggestion of Death and Motion for Remand to Vacate Convictions,” stating that Cherry had died on November 18, 2004, the day before this Court overruled his application for rehearing.

In his motion, Cherry’s attorney, citing to the Alabama Supreme Court’s case of Ex parte Estate of Cook, 848 So.2d 916 (Ala.2002), requested that this Court dismiss Cherry’s appeal as moot and remand this cause to the trial court for that court to vacate Cherry’s four murder convictions. On November 23, 2004, the State filed a response, requesting that this Court allow Cherry’s convictions to stand; the State argued that Cherry’s application for rehearing was a discretionary action and, therefore, that Ex parte Estate of Cook was inapplicable. On November 30, 2004, Cherry’s attorney responded to the State, arguing that Cherry’s convictions were to be vacated because, the attorney contended, Cherry’s right to file an application for rehearing was “absolute” and also arguing that the judgment of this Court was not final because we had not yet issued a certificate of judgment. For the reasons below, we agree with the State. Cherry’s convictions and sentences stand.

In Ex parte Estate of Cook, Cook was convicted in municipal court of driving under the influence. He filed a notice of appeal to the circuit court for a trial de novo. At the circuit court level, a mistrial was declared and a new trial ordered. While awaiting a second trial in circuit court, Cook died. Cook’s counsel sought the dismissal of the charge against Cook, arguing that Cook’s death constituted an abatement of his prosecution and that his conviction in municipal court should be vacated as a nullity. The Alabama Supreme Court held that, “under the circumstances presented [t]here,” Cook’s conviction in municipal court was “to be vacated as a result of his death during the course of his de novo appeal to the circuit court.” Cook, 848 So.2d at 917, 919. The Alabama Supreme Court reasoned:

“The facts of this case present an appropriate occasion for the application of the ab initio abatement rule. At the time of Cook’s death, he was exercising an appeal as of right; further, his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist, and he had no burden to show reversible error — the City had the burden of proving his guilt. § 12-14-70(e), Ala.Code 1975; Rule 30, Ala. R.Crim. P. Cook’s first trial in the circuit court resulted in a hung jury, and a second trial could not be had because of his death.”

Cook, 848 So.2d at 919. The Alabama Supreme Court further noted in a footnote:

“Because the issue has not been presented in this case, we do not address whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal.”

848 So.2d at 919 n. 8.

In Wheat v. State, 907 So.2d 458 (Ala. Crim.App.2004), Wheat was convicted in circuit court of five counts of capital murder and was sentenced to death. Wheat filed his notice of appeal to this Court on June 12, 2003. The trial judge subsequently filed a “Notice of Death,” stating that Wheat had died on May 6, 2004. In holding Wheat’s appeal as moot and remanding his case to the trial court for that court to vacate his capital-murder convictions, this Court stated:

“The Supreme Court in Cook intended to adopt the rule followed by the majority of state and federal jurisdictions' — ■ when a defendant dies while an appeal as of right of his or her conviction is pending the prosecution abates ab ini-tio. We are bound by the decisions of the Alabama Supreme Court. § 12-3-16, Ala.Code 1975. Wheat died while his appeal granted to him as of right by statute was pending before this Court. According to the reasoning of Cook, Wheat’s conviction was not entitled to any degree of finality.”

Wheat, 907 So.2d at 460 (footnote omitted).

Our initial inquiry, then, is whether filing an application for rehearing in Alabama constitutes a discretionary appeal or an appeal as of right. We have addressed this issue in Kinsey v. State, 545 So.2d 200, 203 (Ala.Crim.App.1989), in determining whether a defendant has a right to counsel in the filing of an application for rehearing:

“In this case, the dispositive question is whether a rehearing in the Alabama Court of Criminal Appeals is a matter of right or a matter of discretionary appellate review? We hold that a rehearing before this Court is a matter of discretion to which the right of counsel does not attach.
“In Alabama, all persons convicted of a criminal offense are granted the right to an appeal by Alabama Code 1975, § 12-22-130. This appeal is a right granted to the defendant and is to the Court of Criminal Appeals. Alabama Code 1975, § 12-3-9. Any subsequent review of a criminal conviction by a higher state appellate court is by writ of certiorari to the Alabama Supreme Court. Review by certiorari is entirely discretionary with our Supreme Court (except in capital eases[]). See [Ala. R.App. P.] Rule 39; Ex 'parte Sellers, 250 Ala. 87, 33 So.2d 349 (1948). The Supreme Court will consider a petition for writ of certiorari ‘only after the court of appeals has overruled an application for rehearing....’ [Ala. R.App. P.] Rule 39(a). Thus, a rehearing by this Court lies somewhere between a defendant’s first appeal as a matter of right and a subsequent discretionary review.
“With regard to rehearings,
“ ‘it is generally the rule that, except in cases provided for by statute, a rehearing is not a matter of right, but a privilege given by the appellate court, and governed and limited by its rules. Accordingly it is often held that an application for a rehearing of an appeal addresses itself to the discretion of the court, and its decision in the matter is final.’ 5 C.J.S. Appeal & Error § 1409 (1958) (footnotes omitted) (emphasis added).
“Section 12-22-130, which provides for an appeal as of right, does not contain any reference to a rehearing. We have not found any statute which grants rehearing by this Court as a matter of right.”

As for the rationale for treating an appeal as of right differently from a discretionary appeal in the event of the defendant’s death, we turn to West v. United States, 659 A.2d 1260, 1261-62 (D.C.1995), in which the court reasoned:

“Appellant argues that this court’s ruling in Howell v. United States, 455 A.2d 1371 (D.C.1983) (en banc), supports his contention that his conviction should be abated ab initio, pointing out that in Howell we stated that ‘[w]hen the defendant dies before he has exhausted his right of appeal’ the underlying conviction should be vacated and the prosecution abated ab initio. Id. at 1372. We disagree.
“Consideration of the procedural background of Howell, quite different from that of the present case, clarifies why our holding there does not support appellant’s contention. A division of this court reversed Howell’s conviction for possession of marijuana and remanded the case with directions to suppress the marijuana evidence. Id. Upon learning of the division’s decision, appellant’s counsel tried to telephone Howell, only to learn that he had been murdered some five months before the division opinion issued. Id. Upon being notified of that fact, government counsel filed a suggestion of death. Id. Over the objection of Howell’s counsel, the division vacated its opinion reversing the conviction and dismissed the appeal, -nunc pro tunc. Id. The en banc court took a different view, ordering not only that the appeal be dismissed, but also that the case should be remanded to the trial court so that the conviction could be vacated and the prosecution abated by reason of death. Id. at 1373.
“In reaching our decision in Howell, we relied on the Supreme Court’s decision in Dove v. United States, 423 U.S. 325, 96 S.Ct. 579, 46 L.Ed.2d 531 (1976), a case in which the Court dismissed a petition for certiorari that was pending at the time the petitioner died. In its brief opinion in Dove, the Supreme Court stated that to the extent that its holding was inconsistent with its previous opinion in Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200 (1971), Durham was overruled. Upon the death of the petitioner in Durham while his petition for certiorari was pending, the Supreme Court had disposed of the case by granting the petition for certiorari, vacating the judgment below, and remanding the case to the District Court with instructions to dismiss the indictment. While the language of Dove was cryptic, it is frequently interpreted as holding that, upon the death of an appellant, appeals of right should be treated differently from discretionary appeals. See, e.g., United States v. Pauline, 625 F.2d 684 (5th Cir.1980); United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977); Jones v. State, 302 Md. 153, 486 A.2d 184 (1985).
“This court was of that view in Howell, stating: ‘The rationale for distinguishing between cases of death pending an appeal as of right and cases involving death pending discretionary review of a conviction is compelling.’ Howell, supra, 455 A.2d at 1373. In making that observation, this court relied upon and cited portions of the opinion in Moehlenkamp, supra, where the United States Court of Appeals for the Seventh Circuit stated:
“ ‘The mootness of an appeal of right taken from a criminal conviction brings into play different considerations than does the mootness of a petition for a writ of certiorari committed to the Supreme Court’s discretion. As Mr. Justice Blackmun noted in his dissent to Durham, supra at 484, 91 S.Ct. at 860-61, a court of appeals confronts a “contrasting and very different situation” in disposing of a moot appeal of right than does the Supreme Court in disposing of a moot petition for certiorari. The Supreme Court may dismiss the petition without prejudicing the rights of a deceased petitioner, for he has already had the benefit of the appellate review of his conviction to which he was entitled of right. In contrast, when an appeal has been taken from a criminal conviction to the court of appeals and death has deprived the accused of his right to our decision, the interests of justice ordinarily require that he not stand convicted without resolution of the merits of his appeal, which is an “integral part of [our] system for finally adjudicating [his] guilt or innocence.” Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).’
557 F.2d at 128; Howell, supra, 455 A.2d at 1373.
“The highest court of Maryland has stated in a similar situation:
“ ‘Where the deceased criminal defendant has not had the one appeal to which he is statutorily entitled, it may not be fair to let his conviction stand. But, on the other hand, where the right of appeal has been accorded and the Court of Special Appeals has decided that there was no reversible error, no unfairness results in leaving the conviction intact even though an application for further review has not been resolved when the defendant dies. The mere possibility that this Court might have reversed the conviction is not sufficient ground to order dismissal of the entire indictment.’
“Jones, supra, 486 A.2d at 187.”

(Footnote omitted.)

Cherry died while his application for rehearing was pending. Cherry’s application for rehearing was a discretionary appeal, rather than an appeal of right. Because at the time of his death Cherry was engaged in a discretionary appeal rather than an appeal as of right, we withdraw our November 19, 2004, ruling denying his application for rehearing, which was unknowingly entered the day following his death, and we dismiss his application for rehearing as moot. We decline to remand this cause for the trial court to vacate Cherry’s convictions. Cherry’s convictions and sentences stand as directed by this Court in its decision on direct appeal. Cherry v. State, supra.

DECISION OF NOVEMBER 19, 2004, WITHDRAWN; MOTION TO REMAND DENIED; AND APPLICATION FOR REHEARING DISMISSED AS MOOT.

WISE, J., concurs. SHAW, J., concurs in the rationale in part and concurs in the result, with opinion. McMILLAN, P.J., dissents. BASCHAB, J., dissents, with opinion.

SHAW, Judge,

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

Recently, in Wheat v. State, 907 So.2d 458 (Ala.Crim.App.2004), this Court held that the Supreme Court in Ex parte Estate of Cook, 848 So.2d 916 (Ala.2002), in addressing the threshold issue presented in that case, “intended to adopt the rule followed by the majority of state and federal jurisdictions—when a defendant dies while an appeal as of right of his or her conviction is pending the prosecution abates ab initio.” 907 So.2d at 460 (footnote omitted). This Court’s decision in Wheat was, in my view, dictated by the Alabama Supreme Court’s decision in Cook; therefore, I cannot agree with the majority’s statement in footnote one that this Court in Wheat expanded, rather than applied, the holding in Cook. Otherwise, I agree with the majority opinion.

I agree with the majority that the Supreme Court’s decision in Cook does not mandate the extension of the abatement ab initio rule to the facts of the present case-involving the death of a criminal defendant during the course of discretionary appellate review. In the absence of a clear indication from the Alabama Supreme Court as to its perception of the breadth of the abatement ab initio rule, and in light of the valid policy considerations in West v. United States, 659 A.2d 1260 (D.C.1995), for differentiating in this area of the law between an appeal of right and further discretionary appellate review, cited by Judge Cobb, I will not extend this Court’s holding in Wheat. See also United States v. Pauline, 625 F.2d 684 (5th Cir. 1980). I also note that in United States v. Christopher, 273 F.3d 294 (3d Cir.2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2674, 153 L.Ed.2d 847 (2002), a ease cited as primary authority by the Supreme Court in Cook, the United States Court of Appeals for the Third Circuit also distinguished between an appeal as of right and discretionary review.

Therefore, I concur to dismiss the application for rehearing as moot. I also agree with the majority that Cherry’s motion to dismiss the appeal as moot and to remand the case for vacation of his conviction and sentence is due to be denied.

BASCHAB, Judge,

dissenting.

The appellant’s counsel has filed a petition for a writ of certiorari with the Alabama Supreme Court, but the Alabama Supreme Court has not ruled on that petition. Therefore, this court and the Alabama Supreme Court have concurrent jurisdiction over the appellant’s motion for remand to vacate convictions. See generally Committee Comments to Rule 39(k), Ala. R.App. P., effective February 1, 1994. However, for the reasons set forth below, I believe we should defer to the Alabama Supreme Court in this case. Therefore, I respectfully dissent.

In Ex parte Estate of Cook, 848 So.2d 916 (Ala.2002), the Alabama Supreme Court held that, when a defendant who has been convicted of a crime dies while he is challenging that conviction by an appeal taken as a matter of right, the conviction abates from its inception. In a footnote, the court also stated: “Because the issue has not been presented in this ease, we do not address whether the abatement ab ini-tio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal.” Cook, 848 So.2d at 919 n. 3. As the main opinion correctly notes, a rehearing in this court is a matter of discretionary appellate review. Therefore, this case squarely presents the question of whether the abatement ab initio rule applies when the death of a criminal defendant occurs during the course of a discretionary appeal. Although this court has concurrent jurisdiction to rule in this case, our decision would not be binding on the Alabama Supreme Court. Rather,

“[t]he decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals, and the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328.”

§ 12-3-16, Ala.Code 1975. Because this court is bound by the decisions of the Alabama Supreme Court, because the Alabama Supreme Court could review our decision in this case, and in the interests of judicial economy and finality, the Alabama Supreme Court is in the best position to decide the issue. Therefore, we should defer to the Alabama Supreme Court and transfer the motion for remand to vacate convictions to the Alabama Supreme Court. Accordingly, I respectfully dissent.

      . Cherry was also charged with multiple counts of arson; those charges were dismissed and are not the subject of this appeal.

      . "Separate sentences of imprisonment imposed on a defendant for two or more offenses shall run consecutively, unless the judge at the time of sentencing directs otherwise, whether they are charged in the same charging instrument or by separate charging instruments.” Rule 26.12(a), Ala. R.Crim. P. The trial judge did not direct that the sentences were to run concurrently.

      .Cherry also contends that "[a] motion to dismiss for preindictment delay requires specific findings [to be made] by the trial court.” Cherry never argued to the trial court that it should make specific findings upon the denial of his motion to dismiss; therefore, it is doubtful that this argument is properly before this Court. See generally Love v. State, 677 So.2d 1272, 1275 (Ala.Crim.App. 1996). Additionally, Cherry does not provide any legal authority for this proposition, and we know of none; therefore, the argument is also without merit.

      . We note that most of the hearing on the motion to dismiss focused on rehashing the investigation of the bombing and on defense counsel’s attempts to discredit the investigation, which is more relevant to whether the State intentionally delayed prosecution. No further proof was offered concerning the quantity and quality of prejudice allegedly suffered by Cherry from the preindictment delay.

      . A transcript of voir dire is not included in the record. Defense counsel did not contra-diet the prosecutor when he made this statement.

      . In Wheat, this Court also opined:
      “There is no indication in the Supreme Court's opinion that its holding in Cook is limited to an appeal to the circuit court from a municipal court conviction.”
      907 So.2d at 458. Upon further review, this comment may have slightly overstated the effect of the decision in Cook. The Alabama Supreme Court specifically noted that its decision was made "under the circumstances presented [tjhere,” Cook, 848 So.2d at 917, and also enumerated those circumstances that were unique to an appeal in Cook's case from municipal to circuit court: "his appeal to the circuit court was de novo; he was being retried as if the municipal court conviction did not exist[;] and he had no burden to show reversible error-the City had the burden of proving his guilt.” Cook, 848 So.2d at 919. Therefore, apparently, the Alabama Supreme Court did indicate that its opinion in Cook was specific to the facts of that case. However, the Alabama Supreme Court did not state that the opinion was unavailable for extension in analogous situations, as this Court implicitly recognized in our decision in Wheat.

      . Rule 39, Ala. R.App. P., was amended effective May 19, 2000, to make review by the Alabama Supreme Court discretionary in capital cases.

      . This case is distinguishable from Strickland v. State, [Ms. CR-03-0167, October 20, 2004] - So.2d- (Ala.Crim.App.2004) (Baschab, J., dissenting), because an application for a rehearing was filed in this case before the appellant died and because a petition for cer-tiorari review in the Alabama Supreme Court has been filed in this case.


author: PARKER, Justice.

text:
    Ex parte Bobby Frank CHERRY. Ex parte Bobby Frank Cherry. (In re Bobby Frank Cherry v. State of Alabama).
    1040646 and 1040474.
    Supreme Court of Alabama.
    Jan. 27, 2006.
    Charles A. Flowers III, Birmingham, for petitioner.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for respondent.
   PARKER, Justice.

I.

On the morning of September 15, 1963, a Sunday, 11-year-old Denise McNair and Addie Mae Collins, Carole Peterson, and Cynthia Wesley, all 14 years old, were in the basement of the Sixteenth Street Baptist Church in Birmingham, Alabama, changing into their choir robes. At 10:19 a bomb exploded, killing these four children and injuring 20 other people.

In 1977, Robert Chambliss was convicted of the girls’ murder and was sentenced to life in prison. In 2001, a second participant, Thomas Blanton, Jr., was convicted of their murder and was sentenced to life in prison. On May 22, 2002, nearly 39 years after the bombing, a third participant, Bobby Frank Cherry, was finally convicted of four counts of murder stemming from his involvement in the bombing.

The Alabama Court of Criminal Appeals affirmed Cherry’s convictions on October 1, 2004. Cherry v. State, 933 So.2d 377 (Ala.Crim.App.2004). Cherry applied for a rehearing, which the Court of Criminal Appeals denied by an order issued on November 19, 2004, unaware that Cherry had died on the previous day. On November 19, 2004, Cherry’s counsel filed a “Suggestion of Death and a Motion for Remand to Vacate Convictions.”

On December 17, 2004, the Court of Criminal Appeals withdrew its November 19 decision denying the application for rehearing, dismissed the application for rehearing as moot, and denied the motion filed by Cherry’s counsel for remand to the trial court to vacate Cherry’s convictions. Cherry v. State, 933 So.2d 377, 387 (Ala. Crim.App.2004) (opinion on rehearing). On January 3, 2005, counsel for Cherry filed a second application for rehearing, which the Court of Criminal Appeals denied on January 21, 2005. On January 3, 2005, counsel for Cherry also filed a petition for a writ of prohibition with this Court challenging the Court of Criminal Appeals’ jurisdiction to issue its December 17, 2004, opinion.

During this time period, on December 3, 2004, counsel for Cherry filed a petition for writ of certiorari in this Court. This Court denied the petition, without an opinion (no. 1040342), and issued a certificate of judgment on January 7, 2005. On January 11, 2005, Cherry’s counsel filed in that appeal a motion to clarify, arguing that the certificate of judgment was silent as to the alternative requests for relief contained in the December 3 petition.

On February 4, 2005, Cherry’s counsel again petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals’ decision that Cherry’s death did not render his convictions void ab initio. He argues on appeal that the convictions were never final because Cherry died before the Court of Criminal Appeals denied his application for rehearing of its decision affirming those convictions.

II.

Cherry is deceased. Consequently, he is beyond the jurisdiction of this temporal Court. As this Court stated in McRae v. Johnson, 845 So.2d 784, 785 (Ala.2002):

“The fact that a person purporting to file the notice of appeal is deceased is ‘not just “a mere irregularity, but a complete and radical defect.” ’ Such a notice of appeal fails to invoke the appellate jurisdiction of this Court. Thus, where it is undisputed that the appellant was deceased when the notice of appeal was filed, this court will dismiss the appeal ex mero motu.”

(Internal citations omitted.) See also Estate of Bell v. Bell, 598 So.2d 917 (Ala.Civ. App.1991) (counsel for deceased had no standing to file a motion in the trial court without a substitution of parties). The petitions for the writ of certiorari and pro-

1040646 — DISMISSED.

1040474 — DISMISSED.

NABERS, C.J., and SEE, LYONS, HARWOOD, WOODALL, STUART, and SMITH, JJ., concur.


author: McMILLAN, Presiding Judge.

text:
    Kenneth M. HENDERSON v. STATE.
    CR-03-0804.
    Court of Criminal Appeals of Alabama.
    Oct. 29, 2004.
    Blanchard L. McLeod, Jr., Selma, for appellant.
    Troy King, atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Kenneth M. Henderson, appeals from the circuit court’s denial in May 2003 and July 2003 of his petitions for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P. The record tends to show the following: Henderson pleaded guilty on April 18, 2001, to two counts of unlawful possession of a controlled substance and two counts of unlawful possession of marijuana. The court sentenced him to “reverse split” sentences of 10 years’ imprisonment for each conviction and ordered that the sentences were to run concurrently. Under these “reverse split” sentences, Henderson was placed on probation for five years, followed by three years’ incarceration, and he was then to be placed on probation for the remaining seven years. Henderson did not appeal his convictions or sentences, and he was released on probation in March 2001. After reporting to the probation office, Henderson failed to appear for several mandatory court reviews. The State filed a motion asking that Henderson’s probation be revoked and that Henderson be arrested for voluntarily absconding from the jurisdiction of the court. The court entered an order to that effect on July 1, 2002, and issued an arrest warrant on November 19, 2002. On December 5, 2002, Henderson was arrested on an unrelated charge and placed in the Dallas County jail. He states that he was transferred to the Department of Corrections on January 29, 2003, and that he was given an inmate time sheet reflecting that he was serving a sentence of 60 years.

In his petitions, Henderson contended that his due-process rights were violated when the circuit court revoked his probation without giving him notice or conducting a probation revocation hearing. He also contended that he should have been given a statement of the evidence the court relied on and the facts justifying revocation. The State responded that Henderson’s cases had been set for review in July 2001, November 2001, and February 2002; and that notices had been sent to his address and that attempts had been made to contact him, but that he had apparently absconded. The State further responded that Henderson’s voluntarily leaving the jurisdiction when he was under court order to be supervised by the probation office and to report back to the court for reviews was sufficient ground to revoke his probation in absentia.

On February 2, 2004, the same day the State filed its response, the court conducted a hearing on Henderson’s petitions. At the hearing, Henderson stated that he had reported for the court review in July 2001. He said that his probation officer subsequently told him that he would be locked up after his next review because he had tried to conceal a “dirty” drug test result. He said that he “wasn’t doing the right thing in my life at that time,” so he did not appear for the next review. On February 2, 2004, the circuit court issued a written order denying Henderson’s petitions. The court found that Henderson had failed to appear for the review hearings in July 2001, November 2001 and February 2002; that his probation was revoked on July 1, 2002; and that “the defendant’s voluntarily absconding from the jurisdiction of the Court [was] [a] sufficient ground[] upon which to revoke probation.”

On February 13, 2004, the appellant filed a notice of appeal and an “Application for Reconsideration and Other Appropriate Posfi-Decision Motions,” in which he essentially restated the grounds stated in his petitions. On February 27, 2004, he filed a “Supplemental Motion,” in which he again argued that he was entitled to a revocation hearing. On March 1, 2004, the circuit court agreed to set Henderson’s “Application for Reconsideration and Other Appropriate Post-Decision Motions” for hearing on August 15, 2004.

Henderson’s petitions clearly have merit. In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this court stated:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-der as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala. Cr.App.1995).”

In Law v. State, 778 So.2d 249 (AIa.Crim. App.2000), we held that a probationer also must be informed of his right to request an attorney to represent him during a probation-revocation proceeding. See Rule 27.6(b), Ala. R.Crim. P.

It appears from the record that the circuit court has scheduled a hearing on Henderson’s motion, which contains the same claims set out in his petitions for postconviction relief. However, the court lost jurisdiction to conduct such a hearing 30 days after its February 2 ruling. See Ex parte Bishop, 883 So.2d 262 (Ala.Crim. App.2003). Therefore, this matter is due to be remanded to the trial court so that the appellant’s claims in his petitions may be properly addressed by the trial court in an evidentiary hearing. A return to remand containing the trial court’s findings of fact shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, and WISE, JJ., concur. SHAW, J., concurs in the result.

      . Henderson filed petitions in case nos. CC-00-16.61 and CC-00-17.61 on May 23, 2003. He filed petitions in case nos. CC-00-244.61 and CC-00-245.61 on July 7, 2003. We have consolidated these cases for the purposes of writing one opinion.