author: SHAW, Judge.

text:
    Amanda Ellen O’CALLAGHAN v. STATE of Alabama.
    CR-04-1941.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.

      John Scott Waddell, Birmingham, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   SHAW, Judge.

Amanda Ellen O’Callaghan was indicted for, and convicted of, unlawful manufacture of a controlled substance in the first degree, a violation of § 13A-12-218, Ala. Code 1975. She was sentenced to 10 years’ imprisonment. O’Callaghan raises four issues on appeal:

(1) Whether § 13A-12-218, Ala.Code 1975, is unconstitutionally void for vagueness because the statute fails to state whether a clandestine laboratory operation must be intended to operate in the county where the arrest and prosecution occurred.
(2) Whether the trial court committed reversible error when it ruled that venue is not a jury question and instructed the jury that it did not have to find that the alleged “lab” had to be intended for use in Jefferson County.
(3) Whether the trial court erred by denying her motion for a judgment of acquittal on the ground that the State failed to prove that the alleged clandestine laboratory operation either was to take place or did take place within 500 feet of a residence, place of business, church, or school and that only one precursor material was found.
(4) Whether the trial court erred by overruling her objection to the State’s evidence of other criminal acts, offered pursuant to Rule 404(b), Ala.R.Evid., when the State did not disclose the Rule 404(b) evidence after she had requested in her discovery motion that the State provide any and all information concerning her prior criminal record, including, but not limited to, arrests, convictions, periods of incarceration, and present probationary and parole status.

The evidence adduced at trial indicated the following. Brian Cochran, a patrol officer with the Warrior Police Department, testified that at approximately 11:30 p.m. on April 8, 2003, he was patrolling the northbound section of Interstate 65 located within the Warrior city limits and that this area is located within the Birmingham Division of Jefferson County. Officer Cochran testified that he was at mile marker 280, which was in a construction zone, when he saw a blue and silver GMC 1500 pickup truck traveling 65 miles per hour in a 55-mile-per-hour construction zone; that he noticed that the pickup truck did not have a rearview mirror on the inside of the vehicle and that it had a cracked windshield; that he began to follow the pickup truck and noticed that it was weaving within its lane; that he did not activate his lights and attempt to pull over the pickup truck until mile marker 282 because, he said, mile marker 282 is a safer area in which to execute a traffic stop on that portion of the interstate; and that, although the driver pulled the pickup truck into the emergency lane and turned on the truck’s hazard lights, the driver continued to travel approximately one mile before stopping the pickup truck. Officer Cochran also testified that Alabama Plastics, a manufacturing company that operates 24 hours a day, 7 days a week, was located within 200 feet of the interstate when he initially observed the pickup truck at mile marker 280 on Interstate 65 North.

Officer Cochran stated that for his safety, he made a passenger-side approach to the pickup truck, tapped on the window and requested that the driver roll down the passenger-side window. The driver indicated that the window would not roll down, and the driver told the passenger to open the door. Officer Cochran testified that when the passenger-side door opened, he ‘Vas immediately overwhelmed with the strong chemical odor of ether emitting from the vehicle” (R. 21) and that he “explained the reason for the stop to the driver and requested driver’s license, proof of registration and insurance.” (R. 23.) Officer Cochran learned that the driver was William Harold Lamb and that the passenger was Lamb’s wife, Amanda O’Callaghan.

Officer Cochran stated that both occupants of the pickup truck appeared very nervous. Specifically, he testified that O’Callaghan, seated in the passenger’s seat, was “staring straight ahead” (R. 24); that she had a small dog sitting in her lap and “she was stroking [the dog’s] head very rapidly and very hard” (R. 24); and that when he jokingly asked her if the dog was an attack dog, she did not respond but “continued to stare straight ahead and rapidly stroke the dog’s head.” (R. 25.) Officer Cochran stated that as he issued Lamb a warning citation “for vision obstruction, no rearview mirror and improper lane change for the weaving across the roadway” (R. 26), Lamb explained that he had been driving all day so he was sleepy and tired. Officer Cochran returned Lamb’s documents to him and told him that he was free to leave. Officer Cochran then asked Lamb if he could ask him some questions, and Lamb said that he could. Officer Cochran stated that during the course of this conversation, he requested permission to search the pickup truck and Lamb consented to a search of the vehicle.

Officer Cochran testified that the search of the “back floorboard” of the pickup truck revealed two jars that contained a clear liquid that had the odor of ether; that he placed both Lamb and O’Callaghan under arrest for “a meth production lab in process” (R. 28-29); and that he called for assistance from Detective Corey Archer, a narcotics investigator with the Warrior Police Department, who responded to the scene. Det. Archer then contacted the Drug Enforcement Administration (“DEA”) for assistance in recovering and processing the evidence from the pickup truck. (R. 82-84, 114.) Officer Cochran testified that the DEA agents put on chemical protective masks and rubber gloves to search the pickup truck. (R. 28-30.) Jim Henderson, a Birmingham police officer who was assigned to the DEA on April 8, 2003, testified that he and other DEA agents were called to the scene on the interstate in Warrior because, he said, the authorities “believed that they had a meth lab and [he was] lab certified”— meaning that he knew what to look for to determine if it was a meth lab and how to safely process the evidence. (R. 114-16.) Officer Henderson stated that in light of the items found at the scene on April 8, 2003, this was “an inactive lab” meaning that “they had the ingredients to conduct a lab with used coffee filters and the crushed tablets” and that it was ready “to be set up and continued wherever.” (R. 122.)

Officer Henderson stated that the Occupational Safety and Health Administration classifies meth labs as hazardous and contaminated sites and that he contacted a hazardous material (“HAZMAT”) crew to assist in cleaning up the materials recovered from the pickup truck. (R. 30-31, 116-17.) Officer Cochran also testified that they had to close “a portion of the interstate there for safety reasons.” (R. 30.) Officer Henderson testified that the lithium strips used in the production of methamphetamine are dangerous because, he said, “[i]f lithium contacts with any moisture including the air, it will ignite.” (R. 121-22.)

Officer Cochran testified that the following items were recovered during the search of the pickup truck on April 8, 2003: inside the truck — the two jars with clear liquid that he initially had observed, one of which had “what appeared to be ephedrine pills, crushed ephedrine pills in the bottom” (R. 31); “coffee filters with residue” (R. 38);

“[f]rom a bag that was within the vehicle, a makeup-type bag that contained makeup, ... [w]e recovered a 16-ounce bottle of hydrogen peroxide, a large bag containing several small Ziploc [brand plastic] baggies, a set of postage scales, a pipe cutter,- a Ziploc [brand plastic] bag that contained lithium strips, a one-pound-ten-ounce can of table salt, [and] strips of aluminum foil with an unknown residue on them”

(R. 38); and in the bed of the truck — a propane tank; “three fuel burners like a camping fuel burner type of stove thing” (R. 40); “a one-gallon can of a Liquid Fire drain opener” (R. 40); “[r]ubber tubing and some more Ziploc [brand plastic] bags with an unknown residue in them” (R. 40); and

“two plastic bags which contained several empty bottles with liquid residue and a can of table salt, another can of table salt, rubber gloves, a common household type of tea or Kool-Aid [brand] pitcher that contained a plastic bag containing some unknown crushed pill.”

(R. 40.) Officer Cochran stated that in addition to the items described above, the makeup bag found inside the pickup truck contained “[m]akeup and hair brushes and personal-type stuff that a female would probably use” (R. 39); that this was the only makeup bag found in the truck; and that when he asked her about the makeup bag, O’Callaghan told him that it was her bag.

Det. Archer testified that he removed a plastic bag containing a crushed powder substance (State’s Exhibit 19) from the scene on April 8, 2003; that this exhibit remained in his care, custody, and control from the time he removed it from the scene until he placed it in the evidence locker at the Warrior Police Department; and that on April 9, 2003, he removed it from the evidence locker and delivered it to the Department of Forensic Sciences (“DFS”) for analysis. Det. Archer stated that he also removed some aluminum foil (State’s Exhibit 20) and coffee filters (State’s Exhibit 21) from the scene, that he placed those items in the evidence locker, and that on April 9, 2003, he removed those items from the evidence locker and delivered all the items to DFS for analysis.

Dan Matteo, a forensic drug chemist at DFS, testified that Det. Archer delivered State’s Exhibits 19, 20, and 21 to DFS on April 9, 2003, and that he analyzed the contents of those exhibits between July 23, 2003, and August 1, 2003. Matteo stated that his analysis of those exhibits revealed that the crushed tablets contained in State’s Exhibit 19 was ephedrine, which is a precursor substance (R. 99); that the residue on State’s Exhibit 20 (the aluminum foil) was methamphetamine (R. 101); and that State’s Exhibit 21 (the coffee filters) contained methamphetamine residue. (R. 103.) Matteo stated that while ephedrine is not a controlled substance like pseudoephedrine, ephedrine is very similar to pseudoephedrine and it is a precursor substance. (R. 98-99.) Matteo testified that in his opinion, ephedrine or pseudoephedrine is “a great precursor” because, he said, “it’s so similar to methamphetamine” and “it’s got everything you need.” (R. 104-05.) Matteo also testified that coffee filters, a drain opener, anhydrous ammonia, a hot plate or fuel burner, and lithium are all items commonly used in the production of methamphetamine. (R. 105-08.)

Pursuant to Rule 404(b), Ala.R.Evid., the State also presented evidence regarding O’Callaghan’s subsequent arrest for unlawful manufacture of a controlled substance. Greg Carr, a narcotics and violent crime investigator with the 24th Judicial Circuit Drug Task Force, testified that he is responsible for investigating crimes associated with illegal narcotic activity and that at approximately 10:00 p.m. on May 1, 2003, he was called to a residence located at 141/614th Avenue Southwest in Reform, Alabama, to investigate possible illegal narcotic activity. He stated that when he arrived, seven people were inside this residence — Amanda O’Callaghan, Joshua O’Callaghan, Ricky Biers, Damon Mixon, Kenneth Jones, a juvenile by the name of Julie, and an eight-week-old infant. Inv. Carr testified that they were given consent to search the residence and that during the search the officers recovered approximately a gram of methamphetamine from a cigarette carton. He stated that during the search, Amanda O’Callaghan was sitting on the couch and that when she was removed from the couch they discovered that she had been sitting on a Marlboro brand cigarette carton and that this cigarette carton contained approximately a gram of methamphetamine. (R. 148.) During the search, they also discovered several boxes of pseudoephedrine cold medicine in the bathroom closet and two bottles of “Heet,” which contains methanol, in a black duffel bag found in the bedroom. Inv. Carr stated that Amanda O’Callaghan’s purse was also found inside this black duffel bag. Inv. Carr testified that after this search on May 1, 2003, Amanda O’Callaghan was arrested and charged with unlawful manufacture of a controlled substance in the first degree, unlawful manufacture of a controlled substance in the second degree, and possession of a controlled substance. (R. 154.)

Section 13A-12-218, Ala.Code 1975, states:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the first degree if he or she violates Section 13A-12-217 and two or more of the following conditions occurred in conjunction with that violation:
“(4) A clandestine laboratory operation was to take place or did take place within 500 feet of a residence, place of business, church, or school.
“(6) A clandestine laboratory operation was for the production of controlled substances listed in Schedule I or Schedule II.”

Section 13A-12-217, Ala.Code 1975, states:

“(a) A person commits the crime of unlawful manufacture of a controlled substance in the second degree if, except as otherwise authorized in state or federal law, he or she does any of the following:
“(2) Possesses precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.”

Section 13A-l-2(3), Ala.Code 1975, defines the term “clandestine laboratory operation” as any of the following:

“a. Purchase or procurement of chemicals, supplies, equipment, or laboratory location for the unlawful manufacture of controlled substances.
“b. Transportation or' arranging; for the transportation of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.
“c. Setting up of equipment or supplies in preparation for the unlawful manufacture of controlled substances.
“d. Distribution or disposal of chemicals, equipment, supplies, or products used in or produced by the unlawful manufacture of controlled substances.”

(Emphasis added.)

I.

O’Callaghan first contends that § 13A-12-218, Ala.Code 1975, is “unconstitutionally void for vagueness” because, she argues, “the statute fails to state whether a clandestine laboratory must be intended to operate in the county where the arrest • and prosecution occurred.” (O’Callaghan’s brief at p. 18.) Specifically, she argues:

. “Section 13A-12-218 states that a person is guilty of manufacture of a controlled substance if their clandestine laboratory operation was used, or was intended for use, within 500 feet of a .residence, place of business, school or church.
“In the present case, [O’Callaghan] was arrested, while driving on an interstate- highway, and the alleged clandestine laboratory operation was non-operational.
“The Statute is void for vagueness in that it fails to state whether the alleged lab must operate, or be intended to operate, in the county of arrest and prosecution. In the present case, there was no ■evidence whatever that [O’Callaghan] intended to operate anything in the State of Alabama, or in Jefferson County. Since the statute is silent on the subject, it fails to inform the ordinary person as to what behavior is being proscribed with sufficient definiteness....
“Since the statute fails to state whether the lab must be intended for use in the county of arrest and prosecution, then it should be declared void for vagueness.”

(O’Callaghan’s brief at p. 15; emphasis added.)

“ ‘ “The doctrine of vagueness ... originates in the due process clause of the Fourteenth Amendment, see Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), and is the basis for striking down legislation which contains insufficient warning of what conduct is unlawful, see United States v. National Dairy Products Corporation, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963).
“ ‘ “Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954). A vague statute does not give adequate ‘notice of the required conduct to one who would avoid its penalties,’ Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S.Ct. 329, 330, 96 L.Ed. 367, 371 (195[2]), is not ‘sufficiently focused to forewarn of both its reach and coverage,’ United States v. National Dairy Products Corporation, 372 U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566, and ‘may trap the innocent by not providing fair warning,’ Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227-28 (1972).
“ ‘ “As the United States Supreme Court observed in Winters v. New
York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948):
“““There must be ascertainable standards of guilt. Men of common intelligence cannot be required to guess at the meaning of the enactment. The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt.’
“ ‘ “333 U.S. at 515-16, 68 S.Ct. at 670, 92 [L.Ed. at] 849-50 [citations omitted].”
McCrary v. State, 429 So.2d 1121, 1123-24 (Ala.Cr.App.1982), cert. denied, 464 U.S. 913, 104 S.Ct. 273, 78 L.Ed.2d 254 (1983).’
“McCall v. State, 565 So.2d 1163, 1165 (Ala.Crim.App.1990).
“ ‘ “ ‘As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352 [357], 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). A statute challenged for vagueness must therefore be scrutinized to determine whether it provides both fair notice to the public that certain conduct is proscribed and minimal guidelines to aid officials in the enforcement of that proscription. See Kolender, supra; Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).” ’
“.... The judicial power to declare a statute void for vagueness ‘should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended.’ Jansen v. State ex rel. Downing, 273 Ala. 166, 170, 137 So.2d 47, 50 (1962).”

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

Although § 13A-12-218 does not specifically address venue, § 15-2-2, Ala.Code 1975, states that “[ujnless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed.” A person of ordinary intelligence could understand that the venue for a violation of § 13A-12-218 is in the county where the clandestine laboratory operation took place and where the defendant possessed a precursor substance with the intent to manufacture a controlled substance. In the present case, the evidence showed that O’Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine on Interstate 65, which runs through Jefferson County, and that she possessed ephedrine, a precursor substance. (R. 99.) As previously noted, one of the definitions of “clandestine laboratory operation” is the “[transportation ... of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.” § 13A-l-2(3)b. Thus, we do not find § 13A-12-218 unconstitutionally void for vagueness.

II.

O’Callaghan next contends that “the trial court committed reversible error when it ruled that venue is not a jury question and instructed the jury that it did not have to find that the alleged ‘lab’ had to be intended for use in Jefferson County.” (O’Callaghan’s brief at p. 22.)

During its deliberations, the jury sent the trial court several questions. One of these questions was: “To convict in Jefferson [County] does the meth lab intent to set up have to be in Jefferson County?” (R. 268.) The trial court heard arguments from the parties regarding this question posed by the jury. The State’s position was that “the transporting of the chemicals has to be within Jefferson County” but that “where you set [an operational meth lab] up does not have to take place here” in Jefferson County. (R. 271.) O’Callaghan’s position was that “in order to be in violation of the law if they are looking at where a meth lab was to be set up, it’s going to have to be established somehow that it had to be set up in Jefferson County.” (R. 268-69.) After hearing the parties’ positions, the trial court stated:

“I’m going to answer this no. And I’m going to give you an exception, [O’Callaghan’s attorney].... But to me the only common sense application of this statute, understanding the way that people transport drugs through different counties in this state, the only logical construction to me is that the intent to set up this lab does not have to be in Jefferson County. It could be in any county, as far as I’m concerned, in this state. It’s still a danger.”

(R. 271.)

It appears that O’Callaghan’s argument is based on an erroneous interpretation of the law — that an operational “meth lab” must actually be set up in Jefferson County or that there be the intent to set up an operational “meth lab” in Jefferson County for a person to be prosecuted and convicted in Jefferson County under § 13A-12-218. However, this interpretation ignores the fact that one of the definitions of a “clandestine laboratory operation” is the “[transportation ... of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.” § 13A-l-2(3)b. The transportation of the items necessary to manufacture methamphetamine occurred in Jefferson County; thus, the evidence established that there was a clandestine laboratory operation in Jefferson County. Therefore, the jury did not have to find that O’Callaghan either set up an operational “meth lab” in Jefferson County or intended to set up an operational “meth lab” in Jefferson County in order to convict O’Callaghan under § 13A-12-218.

In light of the foregoing, we find that the trial court correctly answered the jury’s question in the negative.

III.

O’Callaghan contends that the trial court erred when it denied her motion for a judgment of acquittal because, she says, the State failed to prove that “the alleged clandestine laboratory operation was to take place, or did take place, within 500 feet of a residence, place of business, church, or school” and that “only one precursor material was found.” (O’Callaghan’s brief at p. 24.) Specifically, O’Callaghan argues:

“In the present case, the indictment set forth the elements of the offense that the State had to prove for a conviction. One of the elements that the State had to prove was that a clandestine laboratory operation was to take place, or did take place, within 500 feet of a residence, place of business, church, or school. (C. 10.)
“The State failed to produce any evidence whatever of where the operation was intended to take place. The indictment in this case tracks the language of Section 13A-12-218(4) Code of Alabama (1975). The statute does not state that the arrest location of a non-operational lab (R. 123-125) can satisfy the element that the operation either did take place, or was to take place, within 500 feet of the enumerated buildings.”

(O’Callaghan’s brief at p. 25.)

However, this argument again ignores the fact that one of the definitions of a “clandestine laboratory operation” is the “[transportation ... of chemicals, supplies, or equipment for the unlawful manufacture of controlled substances.” § 13A-l-2(3)b. In the present case, the evidence presented at trial showed that O’Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine on Interstate 65, which runs through Jefferson County. As previously noted, Officer Cochran testified that Alabama Plastics, a manufacturing company that operates 24 hours a day, 7 days a week, was located within 200 feet of the interstate when he initially observed the pickup truck at mile marker 280 on Interstate 65 North. Thus, there was sufficient evidence presented to establish that there was a clandestine laboratory operation in Jefferson County within 500 feet of a business. Therefore, the State did not have to present evidence proving either that O’Callaghan set up an operational “meth lab” in Jefferson County or that she intended to set up an operational “meth lab” in Jefferson County in order to obtain a conviction of O’Callaghan under § 13A-12-218.

O’Callaghan also argues that the State did not present sufficient evidence to obtain a conviction because, she says, the State presented evidence that only one precursor substance was found in the pickup truck while § 13A-12-217(a)(2), Ala. Code 1975, plainly states that the defendant must possess “precursor substances.” (Emphasis added.) She argues that “[i]f the legislature had intended to allow the discovery of a single item to be sufficient, then the statute would read ‘material’ as opposed to ‘materials.’” (O’Callaghan’s brief at pp. 27-28.) However, § 1-1-2, Ala.Code 1975, provides that for words used in the Alabama Code, “[t]he singular includes the plural, and the plural the singular.”

Additionally, before the legislature’s passage of § 13A-12-217(a)(2) in 2001, § 20 — 2—190(b), Ala.Code 1975, was already in effect. It stated:

“A person who possesses, sells, transfers, or otherwise furnishes a listed precursor chemical commits an offense if the person possesses, sells transfers, or furnishes the substance with the knowledge or intent that the substance will be used in the unlawful manufacture of a controlled substance. An offense under this subsection shall constitute a Class B felony.”

(Emphasis added.) There is no indication that the legislature, in the face of a growing methamphetamine epidemic at the time of the enactment of § 13A-12-217 in 2001, intended to relax the threshold and require the possession of more than one precursor substance used in the manufacture of methamphetamine in order to establish that a person has committed the crime of unlawful manufacture of a controlled substance.

Because the State presented evidence indicating that O’Callaghan was involved in transporting the chemicals, supplies, and equipment necessary for the manufacture of methamphetamine within 500 feet of a business and that O’Callaghan was in possession of a precursor substance, the trial court properly denied her motion for a judgment of acquittal.

IV.

O’Callaghan also contends that the trial court erred when it overruled her objection to Inv. Carr’s testimony on Rule 404(b) grounds because, she says, the State did not disclose this evidence before trial even though she had requested in her discovery motion that the State provide any and all information concerning her prior criminal record, including, but not limited to, arrests, convictions, periods of incarceration, and present probationary or parole status.

Before the testimony of Inv. Carr — who testified at trial regarding O’Callaghan’s subsequent arrest on May 1, 2003, for the unlawful manufacture of a controlled substance in the first degree — O’Callaghan objected and requested that Inv. Carr not be allowed to testify on the grounds that she had not received pretrial disclosure under Rule 404(b), Ala.R.Evid., of the State’s intent to use this evidence. Rule 404(b), Ala.R.Evid., states:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, “provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.”

(Emphasis added.)

O’Callaghan argued at trial, as she does on appeal, that in her discovery motion filed with the trial court she made the following request:

“4. Any and all information about the Defendant’s prior criminal record, including, but not limited to, arrests, convictions, periods of incarceration and present probationary or parole status.”

(C. 23), and that this request was, in effect, a request for Rule 404(b) information. (R. 136-37, O’Callaghan’s brief at p. 29.) The trial court disagreed that this was a request for Rule 404(b) evidence, and it allowed Officer Carr to testify at trial. (R. 137.)

On appeal, O’Callaghan makes the following argument:

“[Ex parte] Davis[, 875 So.2d 276 (Ala.2003) ] establishes the fact that, contrary to the opinion of the trial court, a [Rule] 404(b)[, Ala.R.Evid.,] motion can be contained in the defense’s discovery request. The only requirement for enforcement is that the motion must be filed with the trial court.
“In the present case, the defense filed the discovery request with the trial court, well in advance of trial, and the State failed to respond to the request within fourteen (14) days as required by the Alabama Rules of Criminal Procedure.
“Since the State failed to provide pretrial disclosure of the [Rule] 404(b) evidence, the trial court erred by allowing the evidence to be presented to the jury through the testimony of Officer Carr.”

(O’Callaghan’s brief at pp. 30-31.) However, this argument misconstrues the trial court’s ruling on this objection.

At trial, the following exchange occurred between O’Callaghan’s attorney and the trial court:

“THE COURT: Well, I don’t know what they intend on doing. But if number four is what you’re referring to, it doesn’t request [Rule] 404(b) evidence, [O’Callaghan’s attorney].
“[O’Callaghan’s attorney]: Judge, it does not specifically say [Rule] 404(b). But it enumerates what I’ve asked for the State to give me.
“THE COURT: It says prior criminal record, arrest, convictions, periods of incarceration in prison, probationary and parole status.
“[O’Callaghan’s attorney]: Yes, sir.
“THE COURT: That’s not 404(b) evidence. Is this [testimony] in the nature of 404(b) evidence?
“[Prosecutor]: Yes, sir, it is.
“THE COURT: What would it be?
“[Prosecutor]: I’m offering this witness’s testimony to prove knowledge and intent because those have been issues brought out by the defense.”

(R. 137.) It is clear that the basis for the trial court’s ruling was not that a request for Rule 404(b) evidence could not be contained in a discovery motion, but that O’Callaghan’s request in her discovery motion was not a request for Rule 404(b) evidence. In Ex parte Davis, 875 So.2d 276 (Ala.2003), the Alabama Supreme Court stated:

“The record indicates that Davis served the prosecutor with a copy of his discovery motion and that included in the motion was Davis’s request that the State inform him of the general nature of all evidence of other crimes, tvrongs, or acts the State intended to introduce at trial.”

875 So.2d at 277 (emphasis added).

In Huffman v. State, 706 So.2d 808 (Ala.Crim.App.1997), this Court determined that evidence of Huffman’s conviction for third-degree theft was properly admitted based, in part, on a finding that Huffman “did not make a specific pretrial request for the state to provide notice of any prior convictions that it intended to introduce in evidence at trial.” 706 So.2d at 814. In the present case, as in Huffman, O’Callaghan did not make a specific pretrial request for Rule 404(b) material. Moreover, O’Callaghan’s request was for information regarding her prior criminal record; however, the Rule 404(b) evidence introduced by the State concerned O’Callaghan’s arrest subsequent to the present crime. Clearly then, O’Callaghan’s request did not cover the evidence introduced by the State. Thus, the trial court correctly allowed the State to present the testimony of Officer Carr.

Y.

Based on the foregoing, we affirm O’Callaghan’s conviction for unlawful manufacture of a controlled substance in the first degree. However, we must remand this case for the trial court to set aside that part of its order imposing a $1,000 fine pursuant to the Demand Reduction Assessment Act, § 13A-12-281(a), Ala. Code 1975, which provides:

“In addition to any disposition and fine authorized by Sections 13A-12-202, 13A-12-203, 13A-12-204, 13A-12-211, 13A-12-212, 13A-12-213, 13A-12-215, and 13A-12-231, or any other statute indicating the dispositions that can be ordered for such a conviction or an adjudication of delinquency, every person convicted of, or adjudicated delinquent for, a violation of any offense defined in the sections set forth above, shall be assessed for each such offense an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders.”

This section does not authorize an additional penalty for persons convicted of violating § 13A-12-218, as O’Callaghan was. Therefore, although we affirm O’Callaghan’s conviction, we remand this case for the trial court to set aside its imposition of the $1,000 fine pursuant to § 13A-12-281. Due return shall be filed with this Court within 21 days of the date of the opinion.

AFFIRMED AS TO CONVICTION; REMANDED WITH DIRECTIONS AS TO SENTENCING.

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

      . The indictment alleged that O’Callaghan
      "did possess precursor substances with the intent to unlawfully manufacture a controlled substance, to-wit: METHAMPHETAMINE, and a clandestine laboratory operation was to take place or did take place .within 500 feet of a residence, place of business, church or school and the clandestine laboratory operation was for the production of controlled substances listed in Schedule I or II, to-wit: METHAMPHETAMINE, in violation of Section 13A-12-218 of the Alabama Criminal Code.”
      (C. 10.)

      . O’Callaghan was initially sentenced as a habitual felony offender to life imprisonment. (C. 6.) However, she filed a motion to reduce her sentence, contending that the State did not adequately prove that the prior convictions from Mississippi constituted felonies in Alabama when those offenses were committed. (C. 48-49.) The trial court agreed that the State "has failed to prove the three (3) prior felonies ... as mandated by caselaw” (C. 5), and it granted O’Callaghan’s motion and reduced her sentence to 10 years' imprisonment.

      . Officer Carr also testified that when he opened the two bottles of Heet, he "found them to contain what is known as a pill soak” which is "where pseudoephedrine pills are crushed and mixed in with methanol in preparation to be used in a methamphetamine cook.” (R. 153.)

      . Section 13A-12-217(a)(2) refers to "substances” rather than "materials." However, it appears that O’Callaghan is arguing that this statute requires the possession of more than one precursor substance and that the State's evidence was not sufficient to convict her under this statute because the State discovered only one precursor substance in the pickup truck.

      . We recognize that § 20-2-190, Ala.Code 1975, was amended in 2004 to create the Alabama Methamphetamine Abuse Task Force. However, the amended version of § 20-2-190(b) continued to refer to "a listed precursor chemical " (emphasis added) in the singular and added the phrase "or a product containing a precursor chemical.” (Emphasis added.) The amended version of § 20-2-190(b) also continued to refer to "the substance” in the singular.

       Note from the reporter of decisions: On March 17, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On April 14, 2006, that court denied rehearing, without opinion. On June 9, 2006, the Supreme Court denied certiorari review, without opinion (1051036).


source: Caselaw Access Project

license: Public Domain

text:
    Celester Cedric EDWARDS v. CITY OF FAIRHOPE.
    CR-04-1966.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      William J. Huntley, Jr., Mobile, for appellant.
    Marion Wynne, Jr., Fairhope, for appel-lee.
   SHAW, Judge.

Celester Cedric Edwards was convicted in the Fairhope Municipal Court of driving under the influence of alcohol (“DUI”), a violation of Fairhope municipal ordinance no. 997, which adopted § 32-5A-191, Ala. Code 1975, and of resisting arrest, a violation of Fairhope municipal ordinance no. 644, which adopted § 13A-10-41, Ala.Code 1975. He appealed for a trial de novo in the circuit court, where, after a jury trial, he was again convicted of DUI and resisting arrest. He was sentenced to six months in the city jail for each conviction; the sentences were split, and he was ordered to serve 60 days in jail followed by 2 years’ probation for the DUI conviction, and 30 days in jail followed by 2 years’ probation for the resisting-arrest conviction, the sentences to run consecutively.

Our review of the record reveals the following. Shane Leiser, an officer with the Fairhope Police Department, testified that in the early morning hours of April 24, 2004, he observed a motor vehicle traveling at a high rate of speed northbound on Highway 98 in Fairhope in front of the Big Lots discount store; that he clocked the speed of the vehicle at 64 miles per hour; and that the speed limit in that area was 45 miles per hour. Officer Leiser stated that after the motor vehicle passed his location, he pulled onto Highway 98 and began an immediate pursuit of the motor vehicle. Officer Leiser also testified that “[t]he more [he] tried to catch up to [the vehicle], the further [the] vehicle was pulling away from [him]” (R.Supp. 6); that “[t]he vehicle slowed down and turned off [Highway 98] onto Dale Road which allowed [Officer Leiser] to close the distance and catch up to the vehicle” (R.Supp. 7); that he activated his blue lights after he turned onto Dale Road; that he did not activate his blue lights until he turned onto Dale Road because he “wanted to close [the] distance to catch up to [the vehicle] before [he] activated [his] lights” (R.Supp. 8); and that he waited to activate his lights because, he said, he was afraid that the driver “would pick up a higher rate of speed and continue north to where it would become reckless.” (R.Supp. 7-8.) Officer Leiser stated that after he turned onto Dale Road and activated his blue lights, the vehicle pulled over after “[approximately 300 yards, 350 [yards]” (R.Supp. 8), but that it pulled over in the City of Daphne’s jurisdiction' — '“Dale Road goes down, makes a hard curve to the left [and that] when [you] make[] that curve that exits [the City of Fairhope’s] jurisdiction into the City of Daphne’s jurisdiction.” (R.Supp. 8.)

Officer Leiser stated that after the vehicle pulled over, he approached the vehicle, told the driver, Edwards, the reason he had stopped him — that he had observed him speeding in Fairhope city limits — -and he asked for his driver’s license. He testified that Edwards looked around for his driver’s license but was unable to locate it and that during this time, he “could smell a strong odor of some kind of alcoholic beverage coming from [Edwards] and his vehicle.” (R.Supp. 10.) When Officer Leiser then asked Edwards for his full name and his date of birth, Edwards “took four different tries to try to get the correct date of birth before he could give [Officer Leiser] a date of birth.” (R.Supp. 10.) Officer Leiser testified that “[h]e’d start giving [Officer Leiser] some numbers and back up, try another number [a]nd then finally the fourth time [Edwards] gave [Officer Leiser] a full date of birth.” (R.Supp. 11.)

Officer Leiser stated that after this exchange, he suspected that Edwards was driving under the influence of alcohol, and he asked him to get out of his vehicle and perform some field-sobriety tests — the one-legged-stand test and the walk-and-turn or heel-to-toe test. He testified that Edwards left his heel on the ground during the one-legged-stand test and that although he attempted to perform the walk- and-turn test, he did not perform it correctly. Officer Leiser stated that it was his opinion Edwards was under the influence of alcohol to such a degree that he could not safely operate a motor vehicle, and he placed Edwards under arrest for DUI.

Officer Leiser stated that he “asked [Edwards] to place his hands behind his back [and Officer Leiser] grabbed one [of Edwards’s] arm[s] and pulled out [his] cuffs and said ‘you’re under arrest for driving under the influence.’ At that time, [Edwards] broke and tried to fight, to resist, to get away from us.” (R.Supp. 20.) Thereafter, a struggle ensued between Edwards, Officer Leiser, and Brett Murphy, a police officer with the City of Fairhope who had arrived at the scene as backup for Officer Leiser. Officer Leiser testified that it took approximately five minutes to subdue Edwards and place him in handcuffs and that by that time two other police officers from Fairhope, Officer Eric Johnson and Sgt. Jimmy Davis, had arrived on the scene, and they transported Edwards to the police station. Officer Leiser stated that he waited at the scene for a tow truck to come and remove Edwards’s vehicle and that by the time he arrived at the police station — 15 or 20 minutes later — Edwards was asleep in his cell.

Officer Murphy testified that when he responded to the scene on April 24, 2004, Edwards was already out of his vehicle and that after observing Edwards take the two field-sobriety tests, he was of the opinion that Edwards was under the influence of alcohol to such a degree that he could not safely operate a motor vehicle. He

also testified that when Officer Leiser attempted to place Edwards under arrest, Edwards spun to the left and ran, and a struggle ensued between Edwards and the two police officers. Officer Murphy stated that they were finally able to subdue Edwards and handcuff him and that either Officer Johnson or Sgt. Davis transported Edwards to the police station. Officer Murphy testified that during the struggle he injured his elbow and sought medical attention at the hospital following the incident and that his glasses were destroyed during the struggle.

I.

Edwards contends that the trial court erred when it denied his motion for a judgment of acquittal on the DUI charge. Specifically, Edwards contends:

“In order to support a conviction pursuant to [§ ] 32-5A-191(a)(2) [, Ala.Code 1975,] the proof must establish that Edwards ‘consumed such an amount of alcohol as to affect his ability to operate a vehicle in a safe manner.’ Rice v. State, 611 So.2d 1161 (Ala.Crim.App.1992), Frazier v. City of Montgomery, 565 So.2d 1255, 1257 (Ala.Crim.App.1990).
“The evidence presented at trial established that Edwards was driving an automobile in April of 2004....
“The City never established by witness testimony, Edwards’s own statements, or circumstantial evidence ... the required standard for alcohol consumption. At best, the City established that Edwards consumed alcohol before his vehicle was stopped. This consumption could have occurred at any time. Therefore, the driving under the influence [conviction] should be reversed.”

(Edwards’s brief at pp. 15-17.) Thus, Edwards concedes that the City of Fairhope (“the City”) established that he was driving a motor vehicle and that he had consumed alcohol before his motor vehicle was stopped. Both Officer Leiser and Officer Murphy testified that they watched - Edwards attempt the two field-sobriety tests and that it was each officer’s opinion that Edwards was under the influence of alcohol to such a degree that he could not safely operate a motor vehicle.

“ ‘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).

In the present case, the evidence presented indicated that Edwards was operating a motor vehicle, that he had consumed alcoholic beverages, and that, in the opinion of the two police officers who had observed the field-sobriety tests, Edwards was under the influence of alcohol to such a degree that he could not safely operate a motor vehicle. There was sufficient evidence to justify the submission of the DUI charge to the jury; thus, the trial court did not err when it denied Edwards’s motion for a judgment of acquittal on the DUI charge.

II.

Edwards also contends that. the City did not have the authority to prosecute him for resisting arrest because, he says, “[n]o actions on the part of Mr. Edwards that could rise to the level of resisting arrest took place within the jurisdiction of the City of Fairhope; therefore, the City of Fairhope had no jurisdiction to prosecute Mr. Edwards for resisting arrest and Mr. Edwards’s conviction for resisting arrest should be overturned.” (Edwards’s brief at p. 13.) Edwards raised this issue in his motion for a judgment of acquittal.

Officer Leiser observed Edwards speeding in Fairhope and even though Officer Leiser immediately began pursuing Edwards’s vehicle, Edwards was traveling at such a high rate of speed that he had already left the City of Fairhope’s jurisdiction and entered the City of Daphne’s jurisdiction before Officer Leiser was able to make the traffic stop. After he stopped Edwards’s vehicle, Officer Leiser arrested him for DUI based upon Officer Leiser’s determination that Edwards was operating his vehicle while under the influence of alcohol and that Edwards was under the influence of alcohol to such a degree that he could not safely operate his motor vehicle.

In Rollins v. City of Birmingham, 344 So.2d 200 (Ala.Crim.App.1977), this Court stated:

“Officer Hunt, in whose presence the alleged misdemeanor was committed, had the legal right to arrest defendant anywhere in Jefferson County. In making a valid arrest a police officer is not limited to the territory within the corporate limits of the municipality of which he is a police officer; he may legally arrest in any part of the county, in which the municipality is situated. Code of Alabama 1940, Tit. 15, Sec. 152; Williams v. State, 44 Ala. 41 [ (1870) ]; Hutto v. State, 53 Ala.App. 685, 304 So.2d 29 [(1974)]; Reed v. State, 48 Ala.App. 120, 262 So.2d 321 [(1972)].”

344 So.2d at 202-03 (emphasis added). Thus, Officer Leiser had the authority to arrest Edwards for DUI even though the arrest occurred in Daphne, rather than in Fairhope, because a police officer has the authority to make an arrest in another city in the same county. See Rollins, 344 So.2d at 202-03, and § 15-10-1, Ala.Code 1975. As the State correctly argues in its brief:

“Officer Leiser saw Edwards speeding through the City of Fairhope. The pursuit took about five minutes. Edwards was obviously speeding in the City of Fairhope. If Edwards was DUI at the time he was stopped just within the Daphne police jurisdiction he was DUI while he was speeding through Fair-hope.”

(State’s brief at p. 15.)

However, although Officer Leiser had the authority to arrest Edwards for DUI even though the. arrest occurred in Daphne, rather than in Fairhope, the municipal court of Fairhope had no jurisdiction over the resisting-arrest charge. Article VI, § 145, Ala. Const.1901, states that “[a]ll municipal courts shall have uniform original jurisdiction limited to cases arising under municipal ordinances as prescribed by law.” Section 12-14-l(b), Ala.Code 1975, provides that “[t]he municipal court shall have jurisdiction of all prosecutions for the breach of the ordinances of the municipality within its police jurisdiction.” (Emphasis added.) The undisputed evidence in this case indicates that the actions upon which the City of Fairhope based its charge of resisting arrest occurred solely in Daphne, after Edwards had been stopped and as he was being placed under arrest. If there is an absence of jurisdiction over either the person or the subject matter, a court has no power to act, and jurisdiction over the subject matter cannot be waived or created by consent. See Ex parte V.S., 918 So.2d 908 (Ala.2005). Edwards’s conviction for resisting arrest was void because the municipal court of Fairhope lacked subject-matter jurisdiction. See Payne v. State, 915 So.2d 1179 (Ala.Crim.App.2005). Consequently, the circuit court had no jurisdiction to entertain Edwards’s appeal for a trial de novo. See, e.g., Ex parte Hood, 404 So.2d 717 (Ala.1981), and Jackson v. City of Huntsville, 513 So.2d 99 (Ala.Crim.App.1987) (each recognizing that dismissal of the proceedings in the circuit court is required when it affirmatively appears that the judgment of the lower court was void for lack of jurisdiction). We note, however, that because there has been no valid conviction for resisting arrest, the City of Daphne may still prosecute Edwards in the municipal court of the City of Daphne for resisting arrest.

For the foregoing reasons, we affirm Edwards’s conviction and sentence for DUI; however, because a void judgment will not support an appeal, we dismiss this appeal as it relates to Edwards’s conviction for resisting arrest, and instruct the circuit court to vacate that conviction and sentence.

AFFIRMED IN PART; APPEAL DISMISSED IN PART.

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

      . Because the resisting-arrest conviction is void for lack of jurisdiction, we pretermit any discussion of Edwards's contention that he was entitled to have the jury charged that "a person can lawfully resist an unlawful arrest.” (R.Supp. 73.)


author: COBB, Judge.

text:
    Andrew Anthony APICELLA v. STATE of Alabama.
    CR-04-0761.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      M. Bradley Almond, Tuscaloosa (withdrew 09/06/2005); and William Montross and Vanessa Buch, Atlanta, Georgia, for appellant.
    Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.
   COBB, Judge.

Andrew Anthony Apicella- appeals from the summary, dismissal of the petition for postconviction relief he filed pursuant to Rule 32, Ala. R.Crim. P. Based on binding precedent from the Alabama Supreme Court, Ex parte Tomlin, 909 So.2d 283 (Ala.2003), we reverse and remand for further proceedings.

Apicella was convicted in 1996 of capital murder for his participation in the shooting deaths of Pamela Dodd, Lester Dodd, William Nelson, Sr., James Watkins, and Florence Adell at the Changing Times Lounge. The deaths occurred during one act or pursuant to one scheme or course of conduct. § 13A-5-40(a)(10), Ala.Code 1975. The jury recommended, by a vote of 8-4, that Apicella be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury’s recommendation and sentenced Apicella to death. On direct appeal, this Court affirmed Apicella’s conviction and death sentence. Apicella v. State, 809 So.2d 841 (Ala.Crim.App.2000). The Alabama Supreme Court affirmed this Court’s decision. Ex parte Apicella, 809 So.2d 865 (Ala.2001).

On December 20, 2002, Apicella filed a petition for postconviction relief pursuant to Rule 32, Ala. R.Crim. P. On January 9, 2003, the State filed a motion to dismiss the petition as time-barred. Apicella filed objections to the State’s motion to dismiss, and the trial court denied the State’s motion, finding that the petition was timely. Apicella filed an amended petition on November 17, 2003. The State filed an answer to the petition and it filed two motions for summary dismissal. One motion sought summary dismissal of procedurally barred claims and one motion sought summary dismissal of ineffective-assistance-of-counsel claims the State alleged had not been pleaded with specificity. In the second motion for summary dismissal, the State indicated it would not oppose- if the trial court granted Apicella 30 days to amend the claims that were not sufficiently pleaded. The trial court did not rule on the motions.

The case was assigned to Judge James Garrett, who had presided over the trial of Apicella’s case, but when Judge Garrett retired from the bench, and the case was reassigned to Judge Tommy Nail in June 2004. Judge Nail scheduled a pretrial hearing to be held on July 19, 2004, to clarify the issues pending. The record does not indicate that this hearing was held, but on August 3, 2004, the State withdrew the two motions for summary dismissal it had previously filed and substituted another motion for summary dismissal. (C. 338-53.) In that motion, the State sought summary dismissal of all claims, including those claims of ineffective assistance of counsel that, it alleged, were insufficiently pleaded. Two days later, on August 5, 2004, the trial court entered the. following order:

“The above styled cause is hereby set for trial on January 6, 2005, at 9:00 a.m. on the issue of ineffective assistance of counsel. Petitioner is given thirty days from today’s date to file any amendments to his petition, and the state is given thirty days from the date petitioner amends his petition to file an answer to any amendments.”

(C. 7.)

Apicella filed a second amended petition on September 3, 2004. On October 7, 2004, the State filed an answer to the second amended petition and a motion for summary dismissal. The State also filed a motion requesting the court to vacate its order scheduling an evidentiary hearing on Apicella’s ineffective-assistance-of-counsel claims. The State argued that all of those claims were due to be summarily dismissed and that no evidentiary hearing was necessary. Finally, the State filed a proposed order summarily dismissing Api-cella’s second amended petition. On December 17, 2004, Apicella filed a response to the State’s motion to dismiss and to the State’s motion to vacate the order setting an evidentiary hearing. On December 23, 2004, the trial court signed the State’s proposed order and summarily dismissed Apicella’s second amended petition for postconviction relief. On January 13, 2005, Apicella filed a motion seeking reconsideration of the order dismissing the petition. The trial court denied the motion. This appeal follows.

Although Apicella raises several issues on appeal, we need address only one issue at this time. Apicella argues that summary dismissal of his postconviction petition must be reversed and the cause remanded for an evidentiary hearing because, he says, he was entitled to an evi-dentiary hearing on his claim that the trial court failed to conduct an individualized sentencing determination when it overrode the jury’s recommended sentence and instead imposed the death sentence. Specifically, Apicella alleged in the petition and argues on appeal that the trial court sentenced him to death on the basis of the outcome of trial of his codefendant, Stephen Pilley. Judge Garrett presided over Pilley’s trial and did not sentence Apicella until after Pilley’s trial had been completed and the sentence had been imposed. The jury in Pilley’s case recommended that he receive the death sentence, and the trial court imposed that sentence; Apicella alleged that the trial court overrode the jury’s recommendation in Apicella’s case to “balance the scales.” Apicella argues that the trial court’s statements to the media made years after his trial prove his claim. The State contends that .the trial court correctly dismissed this claim on procedural grounds because the claim could have been raised at trial and on appeal, but was not. Rule 32.2(a)(3), (5), Ala. R.Crim. P. (C. 16-17.)

In the second amended petition, Apicella alleged, in part:

“The trial court in this case sentenced Andrew Apicella to death on the basis of the outcome of the trial of co-defendant Ste[ph]en Pilley. After overriding Mr. Apicella’s jury’s recommendation of life without parole, the circuit court judge was reported to have said that he did not consider it fair that only one of the two co-defendants was sentenced to death, so the jury’s recommendation was overriden [sic] to balance the scales. See, ‘Judge: Massacre trails [sic] justify option to overrule jury,’ The Birmingham News, 7A, Sunday, Sept. 3, 2000 (article attached as Exhibit 1). The judge was quoted: ‘That is a prime example of why it should be done. The evidence was the same. They were equally culpable.’ Id. Moreover, the judge stated: ‘They were both equally guilty ... One got life without parole; the other one, the jury recommended death. Where is the equity then?’ Because the jury is not as familiar with the facts as the court. See, ‘Ruling divides 1994 bar killers.’ The Birmingham Post-Herald, Al, June 25, 2002 (article attached as Exhibit 2).”

(C. 391.)

Apicella also alleged in his petition:

“A capital defendant is entitled to individualized consideration in sentencing, see Lockett v. Ohio, 438 U.S. 586, 605 (1978); Eddings v. Okalhoma (sic), 455 U.S. 104, 112 (1982). Because Mr. Apicella did not receive the individualized sentencing determination required by the Eighth and Fourteenth Amendments to the United States Constitution, by the Alabama Constitution and by Alabama law, his sentence must be vacated, and the jury’s life verdict should be restored.
“... The Alabama Supreme Court recently reaffirmed constitutional sanctity of individualized sentencing in Ex parte Tomlin, [909 So.2d 283 (Ala.2003) ]. In that case, Tomlin was convicted of capital murder. The parties stipulated that a jury in a previous retrial had returned 12-0 recommendation of life without parole. Notwithstanding the recommendation, the trial court sentenced Tomlin to death. The trial court’s override was due to the fact that Tomlin’s co-defendant had also been convicted of capital murder and previously sentenced to death.
“The trial court stated in its sentencing order the following:
“ ‘The other perpetrator in this crime, John Ronald Daniels, was convicted of the capital murder offense of first degree murder of the same two people and [was] sentenced to death. This Court is charged with the duty to insure that the death penalty is not imposed in a freakish, arbitrary, wanton or capricious manner. That is the reason this Court has the authority to reject a jury’s recommendation of death and impose life [imprisonment] without parole and conversely the authority to reject a jury’s recommendation of life without parole and impose death, if by doing either the Court prevents such prohibited imposition
u í * * *
“ ‘For our judicial system to say, under the circumstances of this case, that the hit man should be sentenced to death but that the hirer, the planner, the cold avenger and the co-executioner should be sentenced to life [imprisonment] without parole is an aberration; a freak that cannot be allowed.’
“Ex parte Tomlin, [909 So.2d at 286].
“The Alabama Supreme Court reversed the judgment of the trial court holding that it was improper for the co-defendant’s death sentence to be used as a factor in Tomlin’s sentencing. [909 So.2d at 287.] The comments attributed to the trial court in the media following sentencing in this case are of the same content and kind as those made by the trial court in Ex parte Tomlin. The trial judge defended the use of judicial override stating that the instant case was ‘a prime example of why it should be done. The evidence was the same. They were equally culpable.’ The Birmingham News, 7A, Sunday, Sept. 3, 2000. Moreover, the trial judge has reportedly stated that Mr. Apicella’s override was necessary to achieve ‘equity’ since Mr. Pilley had already been sentenced to death. The Birmingham Post-Herald, Al, June 25, 2002. Because the consideration of this nonstatu-tory aggravating circumstance resulted in his death sentence, Mr. Apicella was clearly prejudiced by this violation of his rights under Alabama law and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.”

(C. 392-94.)

The record includes the copies of the newspaper articles. The first article was published in the Birmingham Neivs on September 3, 2000. The headline reads: “Judge: Massacre trials justify option to overrule jury.” (C. 240.) The article states, in pertinent part:

“One Jefferson County judge points to the Changing Times Lounge massacre as a prime example of why juries should sometimes be overruled in death-penalty eases.
“The two men accused of killing five people during a robbery at the lounge were convicted in separate trials in 1996 and 1997. Andrew Anthony Apicella’s jury recommended life in prison. Stephen Pilley’s jury favored the death penalty.
“Circuit Judge James Garrett, who presided at both trials, said he didn’t consider it fair to send only one of them to the electric chair. So he balanced the scales. He sentenced Apicella to death, despite the jury’s recommendation.
“ ‘That is a prime example of why it should be done,’ Garrett said. ‘The evidence was the same. They were equally culpable.’
“He said it wouldn’t have been fitting to override Pilley’s jury and give both defendants a sentence of life in prison. ‘This was an execution murder,’ he said.”

(C. 240.)

The State argued below and continues to argue on appeal, and the trial court held, that the claim was due to be summarily dismissed because it could have been, but was not, raised at trial or on appeal. Even a cursory review of the procedural history of this case demonstrates that the claim could not have been raised at trial or on appeal. Apicella was tried and convicted in 1996. Approximately 15 months later, after Stephen Pilley had been tried, convicted, and sentenced to death, the trial court sentenced Apicella to death. This Court affirmed the conviction on February 25, 2000, and affirmed the sentence on June 30, 2000, following two remands for the trial court to address errors in the sentencing order. Apicella v. State, 809 So.2d 841 (Ala.Crim.App.2000). Only in September 2000, when the article appeared in the newspaper and quoted the sentencing judge’s statements about the codefendants’ being equally culpable and stating that this case presented a “prime example” of the reason a trial court should override a jury’s life-imprisonment-without-parole sentence, did Apicella have notice that the trial court appeared to have based his override of Apicella’s jury’s recommendation on the sentence imposed on codefendant Pilley. At that point, the trial had been over for years and the appellate judgment from this Court was final.

The trial court did not explain its reasons for holding that the issue could have been raised at trial, but the State argues on appeal in support of the trial court’s finding that the claim is precluded that “there is every reason to believe that Judge Garrett would have made the same remarks to Apicella’s trial counsel if they had asked him the questions [the newspaper reporter] asked him,” and “[biased on Judge Garrett’s answer to their questions, his counsel could have raised the claim that the trial court violated his right to an individualized sentencing determination at trial.” (State’s supplemental brief at 7-8)(footnote omitted). Apicella has responded succinctly to the State’s argument, stating, in part, “The State’s position that trial counsel must ask the court if it acted unconstitutionally in sentencing their client or be forever barred from raising the claim in state post-conviction proceedings is absurd.” (Apicella’s supplemental reply brief at 7.) We agree. Defense counsel are charged with raising objections to errors in the proceedings when the errors become manifest, but nothing in law or logic requires counsel to ferret out errors in the trial court’s reasoning that were not apparent on the record itself. We note that defense counsel could not have anticipated this particular allegation of error because trial courts are presumed to know the law and to follow it, e.g., Ex parte Slaton, 680 So.2d 909, 924 (Ala.1996), and the law entitled Apicella to an individualized sentencing, Lockett v. Ohio, 488 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). As the United States Supreme Court stated in Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), “[T]he rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.”

Thus, defense counsel had no reason to allege during the trial proceedings that the trial court imposed the death sentence to even the scale after he followed the sentencing recommendation in Pilley’s case and sentenced Pilley to death. The trial court erred when it held that this claim is procedurally barred because it could have been, but was not, raised at trial.

The trial court also found the claim was procedurally barred because Apicella could have raised it on appeal but did not. The State explains in its supplemental brief that the article appeared in the Birmingham News on September 2, 2000, and Apicella filed his petition for a writ of certiorari in the Alabama Supreme Court on September 8, 2000. “Because,” the State then argues, “The Birmingham News article was printed before he filed his petition for writ of certiorari in the Supreme Court of Alabama, Apicella could have raised this claim on direct appeal.” (State’s supplemental brief at 6.) The State contends that, if Apicella had raised the claim in the Alabama Supreme Court, that Court could have reviewed it for plain error pursuant to Rule 45A, Ala. R.App. P. This assertion is utterly meritless. Rule 45A provides for plain-error review of the record. The newspaper article, published years after the trial, was obviously not a part of the trial record and therefore would not have been subject to inclusion in the record or to review by the Alabama Supreme Court as part of a claim of error attributed to the trial court. At oral argument before this Court, the State acknowledged that, if Apicella had raised this claim in the Alabama Supreme Court and if he had attempted to present the newspaper articles as evidence in support of the claim, he would have moved to strike the article because it was not a part of the record. Therefore, the trial court erred when it held that this claim was procedurally barred because it could have been, but was not, raised on appeal.

The trial court’s legal conclusions about this claim were incorrect and its judgment must be reversed. We note, further, that Apicella has pleaded facts, which, if true, entitle him to relief. As he has argued to the court below and to this Court, the Alabama Supreme Court held in Ex parte Tomlin, 909 So.2d 283 (Ala.2003), that the trial court’s decision to override a jury’s recommendation of a sentence of life imprisonment without parole must not be based on the codefendant’s death sentence. Apicella has pleaded specific facts alleging that the trial court overrode the jury’s recommended sentence and imposed the death sentence based on the sentence imposed on Apicella’s codefendant, Stephen Pilley. Therefore, Apicella is entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving the alleged facts. E.g., Boyd v. State, 913 So.2d 1113, 1125 (Ala.Crim.App.2003).

Based on the foregoing, we reverse the trial court’s summary dismissal of Apicel-la’s petition for postconviction relief and we remand the cause for further proceedings.

The parties have argued to this Court the issue whether Apicella should be permitted to amend his petition on remand. We believe that the circuit court, rather than this Court, is in a better position to resolve that issue on remand. We note that the judge who presided over Apicella’s and Pilley’s trials and to whom this postconviction proceeding was originally assigned has retired from the bench; therefore, the judge who summarily dismissed the petition and who, to the best of this Court’s knowledge, will consider the case on remand, has no independent knowledge of the prior proceedings or the facts in this case. Furthermore, we urge that court to carefully consider the principles of Ex parte Rhone, 900 So.2d 455, 458 (Ala.2004), in which the Alabama Supreme Court repeated the oft-stated principle, “Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.” The Court in Ex parte Rhone also noted that Rule 32.7, Ala. R.Crim. P., provides that leave to amend before the entry of judgment is to be freely granted. Our comments are not to be interpreted to mean that the trial court must grant Api-cella leave to amend his petition on remand. We are merely reminding the trial court that its decision on any motion to amend the petition must be governed by the principles stated in Ex parte Rhone.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . To the extent the State argued, for the first time before this Court at oral argument, that the trial court's dismissal of the claim was due to be affirmed because the claim was not pleaded with specificity, we disagree. The claim contains a clear and specific statement of the grounds for relief and a full disclosure of the factual basis of those grounds. Rule 32.6(b), Ala. R.Crim. P.

      . The State's argument assumes that Apicel-la’s appellate counsel became aware of the article before filing the petition for certiorari.


author: WISE, Judge

text:
    Ex parte State of Alabama. (In re Desmond DeJuan PAYNE v. STATE of Alabama).
    CR-05-1326.
    Court of Criminal Appeals of Alabama.
    June 20, 2006.
    Eleanor I. Brooks, district atty., and Michael Dean, deputy district atty., for petitioner.
    Lynne R. Thrower and K. David Sawyer, Administrative Office of Courts, Montgomery, for respondent Judge Charles Price.
   Note from the reporter of decisions: The State petitioned the Court of Criminal Appeals for a writ of mandamus asking that Court to direct Judge Charles Price to rescind his order granting Desmond DeJuan Payne’s motion for a judgment of acquittal. On June 20, 2006, the Alabama Court of Criminal Appeals issued an order denying the State’s petition, holding that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred Payne’s retrial. Judge Wise issued an opinion concurring specially in the order.

WISE, Judge

(concurring specially).

I reluctantly concur with the majority’s decision denying the State’s petition for a writ of mandamus based on the Alabama Supreme Court’s holding in Ex parte Thomas, 828 So.2d 952 (Ala.2001).

Mandamus cannot be used to broaden a party’s right of appeal. See generally State v. A.R.C., 873 So.2d 261, 267 (Ala.Crim.App.2003). In Alabama, the State has a limited right to appeal, and that right is conditioned on compliance with certain requirements. The State can appeal a pretrial ruling holding a statute unconstitutional, suppressing evidence, dismissing the charges, quashing an arrest or search warrant, or granting a habeas corpus petition and ordering an individual released from custody. See §§ 12-12-70, 12-22-90, and 12-22-91, Ala.Code 1975, and Rule 15.7, Ala.R.Crim.P. However, the Alabama Rules of Criminal Procedure provide the State no right of appeal from a trial court’s order granting a new trial after a verdict has been returned or a judgment entered. By contrast, 18 U.S.C. § 3371 provides a much broader right for the federal government to appeal than is provided the State in Alabama. That statute provides, in pertinent part:

“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information or granting a new trial after verdict or judgment, as to any one or more counts, or any part thereof, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.”

Because Judge Price granted Payne’s motion for a judgment of acquittal before the case was submitted to the jury, the Double Jeopardy Clause bars Payne’s retrial on the theft charges and precludes this Court from reviewing the validity of Judge Price’s ruling. Although amending the Alabama Rules of Criminal Procedure to broaden the State’s right of appeal would serve no purpose in this particular case, such an amendment could prevent possible future injustices from occurring. Accordingly, I urge the Alabama Supreme Court to amend the Alabama Rules of Criminal Procedure to conform with 18 U.S.C. § 3871, allowing the State — in the appropriate circumstances — the right to appeal an order of the trial court granting a new trial after a verdict is returned or a judgment entered, as to any one or more counts, or any part thereof, except where further prosecution is barred by the Double Jeopardy Clause.

      . Rule 15.7, Ala.R.Crim.P., governs pretrial appeals by the State. It requires that the State certify that the pretrial appeal is not brought for the purpose of delay and that the order being challenged by the pretrial appeal would be fatal to the prosecution of the charge if not reversed. Rule 15.7(a), Ala.R.Crim.P.

      . The single exception to the principle that a judgment of acquittal by a judge precludes reexamination of guilt no less than acquittal by a jury is when a jury returns a verdict of guilty and a trial judge sets aside that verdict and enters a judgment of acquittal. In such a circumstance, the Double Jeopardy Clause does not prohibit an appeal by the prosecution to reinstate the jury’s guilty verdict. See, e.g., Smith v. Massachusetts, 543 U.S. 462, 467, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2004); United States v. Wilson, 420 U.S. 332, 352-53, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975).


author: DAVIS, Judge.

text:
    Stephanie E. IRELAND, Petitioner, v. Stacey A. FRANCIS and Alan R. Francis d/b/a Aleo Auto Sales, and Stacey A. Francis, individually, Respondents.
    No. 2D06-1316.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 2006.
    Rehearing Denied Jan. 18, 2007.
    Bill McCabe of Shepherd, McCabe and Cooley, Longwood, for Petitioner.
    Scott A. Cole and Maria T. Kleppinger of Cole, Scott & Kissane, P.A., Miami, for Respondents.
   DAVIS, Judge.

Stephanie E. Ireland petitions for certio-rari review of the trial court’s interlocutory order compelling her psychiatrist to provide her medical records to Stacey and Allan Francis d/b/a Aleo Auto Sales and Stacey Francis, individually (collectively “Respondents”). We grant the petition.

Ireland has named Respondents as defendants in the underlying personal injury action that stems from a car accident between Ireland and Stacey Francis, who at the time was driving a vehicle owned by Aleo Auto Sales. Ireland filed a complaint against Respondents, seeking damages for “bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings and loss of ability to earn money.” (Emphasis added.)

Based on the claim for mental anguish damages, Respondents filed a notice of production from a nonparty, seeking Ireland’s medical records from her psychiatrist, Dr. Omar Rieche. Upon receiving notice from Dr. Rieche’s office that it could not comply with such a request without a HIPAA authorization for release of information signed by Ireland, Respondents contacted Ireland’s counsel requesting that Ireland sign such an authorization. When Ireland refused, Respondents filed a motion to compel her to execute a medical records authorization form.

Prior to the hearing on the motion, counsel for Ireland informed counsel for Respondents orally at Ireland’s deposition that she was waiving her mental anguish claim. Ireland also filed a written notice with the trial court that she was withdrawing the mental anguish claim. Nevertheless, following the hearing on Respondents’ motion to compel, the trial court entered an order concluding that Ireland had waived any psychotherapist-patient privilege because her initial pleading included a mental anguish claim. Based on that conclusion, the trial court ordered Dr. Rieche, a nonparty to the proceedings, to produce copies of the records.

With regard to common law certio-rari review of nonfinal trial court orders, the petitioner must demonstrate that the challenged order departs from the essential requirements of law and that unless relief is granted he or she will suffer an injury for which he or she will have no adequate remedy on appeal. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995). Ireland has met this burden here.

Section 90.503(2), Florida Statutes (2005), provides as follows: “A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition ... between the patient and the psychotherapist....” However, the privilege does not apply to “communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense .... ” § 90.503(4)(c); see also Nelson v. Womble, 657 So.2d 1221, 1222 (Fla. 5th DCA 1995) (‘“A plaintiff who seeks mental anguish damages arising out of a motor vehicle accident has “made his post-accident mental or emotional condition an element of his negligence claim” and cannot invoke the psychotherapist-patient privilege.’ ” (quoting Scheff v. Mayo, 645 So.2d 181, 182 (Fla. 3d DCA 1994))).

Here, the trial court concluded that by including a claim for mental anguish in her original pleading, and thus making her mental condition an element of her claim, Ireland permanently waived her psychotherapist-patient privilege. This, however, is not a correct statement of the law. Because Ireland has withdrawn her claim for mental anguish, her mental condition is no longer an element of her claims. See Byxbee v. Reyes, 850 So.2d 595, 596 (Fla. 4th DCA 2003) (“Byxbee withdrew his claim for mental anguish. A claim for loss of enjoyment of life, ‘without more, does not place the mental or emotional condition of the plaintiff at issue so as to waive the protection of section 90.503.’ ” (quoting Partner-Brown v. Bornstein, 734 So.2d 555, 556 (Fla. 5th DCA 1999))).

Based on Byxbee, the trial court departed from the essential requirements of law in ordering the production of Ireland’s psychiatry records even though she has withdrawn her claim for mental anguish. Furthermore, because such a disclosure would let the proverbial cat out of the bag, unless relief is granted Ireland would suffer an injury for which she would have no adequate remedy on appeal. See Parkway Bank, 658 So.2d at 650. As such, we grant the petition.

We also note that because we are granting the petition on this basis, we need not address Ireland’s claim that the trial court departed from the essential requirements of law by directing a nonparty to produce her records.

Granted.

FULMER, C.J., and CANARY, J., Concur.

      . See Pub.L. No. 104-191, 110 Stat.1936 (1996) (codified at 42 U.S.C. § 1320d-d8), commonly referred to as the Health Insurance Portability and Accountability Act of 1996 (HIPAA):


author: PER CURIAM.

text:
    Jethro WALKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5150.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2006.
    Rehearing Denied Jan. 8, 2007.
    Jethro Walker, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By a petition filed with this court in October 2006, Jethro Walker seeks a belated appeal of a November 2000 judgment and sentence of the Escambia County Circuit Court. In support, he alleges that after he entered a negotiated plea and was sentenced, the trial court failed to advise him of his right to appeal. Walker implicitly acknowledges the normal two-year time limitation for seeking a belated appeal, but relies on the portion of Florida Rule of Appellate Procedure 9.141(c)(4)(A) that provides an exception if the defendant alleges under oath, with a specific factual basis, that he was not advised of the right to an appeal, and should not have ascertained such facts by the exercise of reasonable diligence.

While the sentencing transcript provided to us by Walker corroborates his claim that he was not advised of his right to appeal, we conclude that the facts alleged in the petition fail to show that he could not or should not have ascertained the existence of his right to appeal by the exercise of reasonable diligence within the two-year time period contemplated by the rule. Accordingly, the petition seeking belated appeal is denied.

PETITION FOR BELATED APPEAL DENIED.

WEBSTER, VAN NORTWICK, and PADOVANO, JJ., concur.


author: THOMAS, J.

text:
    Jan MALICHI, Appellant, v. ARCHDIOCESE OF MIAMI and Unisource Administrators, Inc., Appellees.
    No. 1D05-5108.
    District Court of Appeal of Florida, First District.
    Nov. 8, 2006.
    Rehearing Denied Jan. 8, 2007.

      Geoffrey B. Marks and G. Bart Billb-rough of Billbrough & Marks, P.A., Coral Gables, for Appellant.
    Warren Brown, Bernard I. Probst, Leticia G. Coleman and Robert 'L.' Teitler of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for Appellees.
   THOMAS, J.

The issue before this court is one of first impression: whether the Free Exercise Clause of the First Amendment to the United States Constitution precludes judicial review of a Catholic priest’s workers’ compensation claim.

Appellant, a Catholic priest, appeals the Judge of Compensation Claims’ (JCC) summary final order dismissing'his workers’ compensation claim filed against Ap-pellee, the Archdiocese of Miami, because the JCC lacked subject-matter jurisdiction under the First Amendment to the United States Constitution to consider Appellant’s claim. We now affirm.

We hold that civil courts lack subject-matter jurisdiction, as a matter of law, to consider Appellant’s claim because it constitutes an internal employment dispute between a priest and his church. The church autonomy doctrine, also known as the ecclesiastical abstention doctrine, protects the Archdiocese from state interference in its internal employment disputes. To allow Appellant to litigate his claim as a purported “employee” would violate the Free Exercise Clause of the First Amendment to the United States Constitution by entangling the civil courts in the Catholic Church’s internal governance.

Facts and Procedural History

Appellant filed a petition seeking workers’ compensation benefits. He asserted that while serving as an associate pastor with the Archdiocese, he suffered an injury lifting a television and assisting another priest. The Archdiocese ultimately filed a motion for summary final order seeking dismissal based solely on lack of subject-matter jurisdiction. The Archdiocese asserted that the First Amendment precluded Appellant’s workers’ compensation claim and filed a monsignor’s affidavit stating that Appellant was an incardinated cleric under canon law and thus was not an employee of the Archdiocese.

The Archdiocese further explained that because Appellant’s employment relationship is governed by canonical law, his workers’ compensation claim necessarily raises issues of ecclesiastical law, faith, religious doctrine and internal church organization. According to the Archdiocese, applying the workers’ compensation law to Appellant would preclude his ability to maintain confidences, thus violating church law. Therefore, the Archdiocese argued, the church autonomy doctrine bars Appellant’s claim.

Appellant argued that the question of whether he is an employee for purposes of workers’ compensation benefits does not require delving into matters of intrachurch governance, discipline or dogma, and therefore, the church autonomy doctrine does not bar his claim. The JCC accepted the Archdiocese’s position and dismissed Appellant’s claim.

Analysis

The church autonomy doctrine is based on the Free Exercise Clause of the First Amendment. The doctrine prevents secular courts from reviewing disputes requiring an analysis of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required,” and under the doctrine, secular courts must accept the decision by the highest ecclesiastical authority on such matters. Watson v. Jones, 80 U.S. (13 Wall.) 679, 733, 20 L.Ed. 666 (1871) (emphasis added). When analyzing jurisdiction under the church autonomy doctrine, courts must consider the nature and substance of the claim to determine if the claim involves a prohibited inquiry. Patton v. Jones, 212 S.W.3d 541, 547, 2006 WL 2082974 at *3 (Tex.App. July 28, 2006) (citations omitted).

According to the monsignor’s affidavit, the determination of whéther a priest is classified as an employee for workers’ compensation purposes is made based on internal church organization. Therefore, the Archdiocese asserts that a civil court does not have jurisdiction to review the Church’s classification of Appellant as an incardinated cleric, rather than an employee, because this relationship is an essential part of church government..

Once the Archdiocese asserts that the Appellant is an incardinated cleric and not an employee, we must respect the relationship between the Church and its priest because “[t]he relationship between an organized church and its ministers is its lifeblood_ Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.” McClure v. Salvation Army, 460 F.2d 553, 558-59 (5th Cir.1972) (holding that the “ministerial exception” doctrine precludes judicial review of a minister’s Title VII claim). Although we respect this relationship, we reject the Archdiocese’s argument that our analysis ends the moment it asserts that a dispute falls outside civil court review. A church or religious organization seeking to avoid application of a neutral state law must first show why application of the law requires adjudication of an ecclesiástical matter. See Malicki v. Doe, 814 So.2d 347, 354 (Fla.2002) (explaining that “before the constitutional right to free exercise of religion is implicated, the threshold inquiry is whether the conduct sought to be regulated was ‘rooted in religious belief ” and that “in order to launch a free exercise challenge, it is necessary ‘to show the coercive effect of the enactment as it operates against [the individual] in the practice of his religion.’ ”) (internal citations omitted).

The subject of a priest’s employment relationship with his church is not per se ;barred by the church autonomy doctrine. For example, the nature of a priest’s employment relationship with his church may be explored when a third party seeks damages from a church based on the priest’s alleged tortious actions. See Id. at 364. Therefore, the Archdiocese must first show why consideration of Appellant’s workers’ compensation claim requires adjudication of an ecclesiastical mátter.

Because the Archdiocese maintains an absolute ecclesiastical right to control and direct Appellant’s duties and functions, any inquiry into this subject required the JCC to inquire into internal matters of church governance. This is constitutionally impermissible. See Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952), (stating that the supreme court’s decision in Watson allows churches the “power to decide for themselves, free from state interference, matters of church government as well as faith and doctrine.”) (emphasis added). In Southeastern Conference Association of Seventh-Day Adventists, Inc. v. Dennis, 862 So.2d 842 (Fla. 4th DCA 2003), the Fourth District correctly explained that “[c]ourts may not consider employment disputes between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom and law.” Id. at 844 (citations omitted). Therefore, the Fourth District held that the circuit court did not have jurisdiction over a minister’s negligence claim filed against his church for its response to a parishioner’s allegations against the minister. We think the same rationale and analysis apply here. Thus, the church autonomy doctrine similarly precludes this court from considering Appellant’s claim.

As the Fourth District explained in Dennis, civil courts are bound to accept the Archdiocese’s absolute ecclesiastical authority under the church autonomy doctrine. Id.; see also Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 709, 96 S.Ct. 2372, 2380, 49 L.Ed.2d 151, 162 (1976) (stating that where resolution of ecclesiastical disputes cannot be made without extensive inquiry by civil courts into religious law and polity, “the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them.”); Dennis, 862 So.2d at 844. Because this court must accept the Archdiocese’s authority, Appellant must accept its authority as well and cannot seek review of his claim in this court. As the United States Supreme Court has explained,

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.

Watson, 80 U.S. at 728-29 (emphasis supplied).

A controverted workers’ compensation claim places an employer, and its retained carrier, in an adversarial legal relationship- with an employee. See, e.g., Brown v. Justin C. Johnson & Assoc., P.A., 937 So.2d 780 (Fla. 1st DCA 2006) (determining whether the claimant’s activity was within the “course and scope of his employment”); Chapman v. Nationsbank, 937 So.2d 788 (Fla. 1st DCA 2006) (considering whether the claimant knowingly made a false statement to obtain benefits); Dollar Gen. Corp. v. MacDonald, 928 So.2d 464, 466 (Fla. 1st DCA 2006) (holding that the claimant’s work activity was not the “major contributing cause” of the injury); European Marble Co. v. Robinson, 885 So.2d 502, 503 (Fla. 1st DCA 2004) (defending claim on the ground that the claimant was intoxicated or under the influence of drugs which caused the injury). All of these examples of workers’ compensation claims would place the Archdiocese and its priest in an adversarial legal relationship. Therefore, judicial consideration of Appellant’s claim violates the Archdiocese’s Free Exercise rights under the First Amendment.

Although chapter 440 was enacted, in part, to minimize this adversarial relationship by providing a quick and efficient recovery to injured workers, adversarial litigation occurs quite regularly. Resolving an adversarial workers’ compensation dispute would invariably interfere in the critical and constitutionally protected relationship between a church and its minister. This explains why a state might choose to exempt ministers from the definition of “employee” for purposes of workers’ compensation laws. In South Ridge Baptist Church v. Industrial Commission of Ohio, 676 F.Supp. 799 (S.D.Ohio 1987), the court noted that the exemption provided in Ohio law “seeks to obviate excessive interference with the religious ministry of churches.” Id. at 806.

Although Florida law provides no such exemption, application of chapter 440 to priests’ claims would excessively interfere with the Archdiocese’s ministry because the Archdiocese would necessarily have to defend itself regarding these claims. This would require civil courts to determine the good faith or credibility of the Archdiocese, or its priests, which we find is barred by the church autonomy doctrine. While Appellant correctly asserts that Florida law does not specifically exempt clergy from its workers’ compensation statutes, this argument would only be significant absent the requirements of the First Amendment because the statute must yield to the United States Constitution. See Bollard v. Ca. Province of the Soc’y of Jesus, 196 F.3d 940, 945 (9th Cir.1999) (determining that the source of the ministerial exception, a subpart of the church autonomy doctrine, is “the Constitution rather than the statute.”). Thus, the church autonomy doctrine precludes application of chapter 440 to Appellant regardless of whether a ministerial exemption exists in Florida law.

An inquiry about whether a priest was properly engaged in his assigned duties and injured as a result of his employment could inevitably lead to disputes regarding whether the church exercised its ecclesiastical authority in assigning those duties. Determination of a priest’s duties is a matter of the church’s internal administration and government. See McClure, 460 F.2d at 559. As the Archdiocese argues, similar questions could affect the special relationship between a priest and his church or the ability of a priest to receive and maintain church confidences.

Another impermissible infringement upon a priest’s employment relationship and the church’s internal governance could arise pursuant to section 440.205, Florida Statutes (2006), which protects an employee from a retaliatory discharge in response to the employee’s filing of a valid workers’ compensation claim. Claims brought under anti-retaliation statutes may be barred by the Free Exercise Clause. See Stark man v. Evans, 198 F.3d 173, 175 (5th Cir.1999) (explaining that a claim brought under a Louisiana retaliatory discharge statute was barred by the Free Exercise Clause). Because resolving any of these issues in the judicial branch would necessarily infringe on the Archdiocese’s constitutional right of free exercise, this court cannot consider Appellant’s workers’ compensation claim.

Although we find that this court lacks jurisdiction to consider Appellant’s claim, we acknowledge our supreme court’s holdings that permit third parties to file negligent-hiring and negligent-supervision claims against hierarchical churches. See Doe v. Evans, 814 So.2d 370, 376 (Fla.2002); Malicki, 814 So.2d at 347 (holding that due to the neutral principles inherent in tort law, such claims do not implicate the Free Exercise Clause). We find Appellant’s claim distinguishable from both Evans and Malicki because Appellant’s claim would excessively entangle civil courts in the resolution of a completely internal church matter involving no third parties.

Conclusion

We hold that a priest’s workers’ compensation claim is barred by the church autonomy doctrine of the First Amendment. The JCC, therefore, correctly dismissed Appellant’s workers’ compensation claim for lack of subject matter jurisdiction.

We do not decide whether the church autonomy doctrine applies to a claim filed by a minister of a “congregational” or “presbyterial” church (or other religious body) that does not have the same hierarchical structure and well-established body of canonical law as the Archdiocese. Other courts have stated there is no difference in the application of the doctrine to all three church categories, but we express no opinion on the reasoning or on the result reached by those courts. See Crowder v. S. Baptist Convention, 828 F.2d 718, 727 n. 20 (11th Cir.1987); Calvary Christian Sch., Inc. v. Huffstuttler, 2006 WL 1779525 n. 2, 367 Ark. 117, - n.2, — S.W.3d - (Ark. June 29, 2006); Guinn v. Church of Christ of Collinsville, 775 P.2d 766, 772 n. 18 (Okla.1989); Patterson v. N.W. Baptist Theological Seminary, 858 S.W.2d 602, 606 (Tex.App.1993).

AFFIRMED.

KAHN and LEWIS, JJ., concur.

      . The monsignor further averred that Appellant continued to receive his monthly stipend, that all of Appellant’s associated medical bills to date had been paid, and that the Archdiocese had requested Appellant to submit any medical bills needing to be paid so that the Archdiocese could pay those bills.