author: BASCHAB, Judge. WISE, Judge,

text:
    STATE of Alabama v. Michael Ivan WILSON.
    CR-04-1598.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Dec. 16, 2005.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.

      Roy Scott Anderson, Decatur, for appel-lee.
   On Application for Rehearing

BASCHAB, Judge.

The opinion issued September 30, 2005, is withdrawn and the following opinion is substituted therefor.

The State appeals from the circuit court’s order granting a motion to dismiss Count I of the indictment against the ap-pellee, Michael Ivan Wilson.

The appellee was indicted for second-degree unlawful manufacture of a controlled substance and unlawful possession of a controlled substance. He filed a “Motion to Dismiss Count I of Indictment,” which charged him with second-degree unlawful manufacture of a controlled substance. On May 5, 2005, the circuit court entered an order granting the appellee’s motion. This appeal followed.

Initially, we note:

“Rule 2(a), Aa. R.App. P., states: ‘An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.’ Rule 15.7 specifically provides that a notice of appeal from a pretrial ruling shall be filed in both the circuit court and the Court of Criminal Appeals within seven days of the pretrial ruling appealed from. This provision of Rule 15.7 is mandatory. An appellate court may not extend the time for filing the notice of appeal. Rule 2(b), Aa. RApp. P. ‘Timely filing of notice of appeal is a jurisdictional requisite, and the appeal must be dismissed for lack of jurisdiction if notice of appeal was not timely filed.’ Woods v. State, 371 So.2d 944, 945 (Ala.1979).”

State v. Moore, 803 So.2d 584, 585 (Ala.Crim.App.2001).

The record in this case indicates that the circuit court entered its order dismissing Count I of the indictment on May 5, 2005. The State timely filed its notice of appeal in this court on May 5, 2005. However, it filed its notice of appeal in the circuit court on May 2, 2005, before the circuit court entered its order dismissing Count I of the indictment. In Miles v. State, 822 So.2d 468, 468-70 (Aa.Crim.App.2000), we addressed a similar situation in the Rule 32 context as follows:

“The petitioner, Bobby Gene Miles, appeals the denial of his petition for post-conviction relief filed pursuant to Rule 32, Aa. R.Crim. P. Miles filed a Rule 32 petition in the circuit court of Colbert County on November 1, 1999. His petition was accompanied by a notice marked ‘Standing Notice of Appeal.’ The trial court denied the Rule 32 petition on November 18, 1999. Pursuant to Miles’s formerly filed standing notice of appeal the circuit clerk processed the case and sent the notice of appeal to this Court. Is a premature notice of appeal — filed before a judgment has been entered on a postconviction petition— effective to confer appellate jurisdiction on this Court. For the following reasons we hold that it is not.
“Miles in his ‘standing notice of appeal’ stated:
“ ‘Pursuant to attached petition for postconviction relief by Rule 32 A.R. Cr. P. remedy petitioner hereby submits a “Standing Notice of Appeal.”
“ ‘Comes “Bobby Gene Miles” the pro-se petitioner, and hereby makes known that he wishes to appeal to the Aabama Court of Criminal Appeals any denial, dismissal or adverse ruling by this court for the attached petition for postconviction relief by way of Rule 32, A.R. Cr. P. remedy. Appeal in this cause is authorized by Rules 3-4 Alabama Rules of Appellate Procedure and Rule 32.10 Alabama Rules of Criminal Procedure. Appellate Forms: A.R.A.P. 26 front-back and A.R.A.P. 1 — C are attached hereto.’
“This Court has never had occasion to speak to the specific issue presented in this case. However, the Alabama Court of Civil Appeals in McCoy v. Garren, 384 So.2d 1113, 1114-15 (Ala.Civ.App.1980), has stated the following concerning a premature notice of appeal:
“ ‘Appeals are of statutory origin, and, unless so provided, no appeal will lie. Johnson v. Barnes, 250 Ala. 292, 34 So.2d 144(1948)....
“ ‘Section 18-1-20, Code of Alabama 1975 is the only provision in the Code authorizing appeals from condemnation orders entered by probate courts. State v. Pettis, 275 Ala. 450, 156 So.2d 137 (1963). Therefore, the probate court order of November 27, 1978, not the September 22, 1978 order, was the order that triggered the running of the thirty day appeal period for appeals to the circuit court. Consequently defendants’ notice of appeal, which was filed on November 8, 1978, was filed before the order of condemnation from which an appeal could be taken. The result is a premature taking of an appeal.
“ ‘Defendants’ failure to perfect their appeal in accordance with § 18-1-20 deprives the circuit court of jurisdiction to hear the appeal. Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854 (1954). Not having jurisdiction to hear defendants’ appeal, the circuit court properly dismissed it. State v. King, 271 Ala. 16, 122 So.2d 158 (1960).’
“Followed by Ex parte City of Irondale, 686 So.2d 1127 (Ala.1996). See also Jenkins v. Jenkins, 112 Md.App. 390, 685 A.2d 817 (1996) (‘Premature notices of appeal are generally of no force and effect.... They have no effect because premature appeals are a jurisdictional defect.... We may not confer appellate jurisdiction on our own initiative.’).
“Rule 4(a)(1), Ala. R.App. P., states: ‘Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ’ The only provision in the rules that speaks to filing a premature notice of appeal is contained in Rule 4(b)(1). This rule states: ‘A notice of appeal filed after the announcement of a decision or order, but before pronouncement of the sentence, shall be treated as having been filed after the pronouncement of the sentence and on the day thereof.’
“Clearly, the wording of the Rule states that notice of appeal must be filed within 42 days ‘after a judgment’ has been entered in a case. There is nothing from which to appeal until a ruling has been entered in a case. When Miles filed his notice of appeal there was no judgment entered on the Rule 32 petition.
“Here, the ‘standing notice of appeal’ filed prior to the entry of judgment was not effective to invoke the jurisdiction of this Court. No written notice of appeal was filed after the entry of judgment; therefore, this Court has no jurisdiction to consider this appeal. Barfield v. State, 703 So.2d 1011 (Ala.Crim.App.1997).”

Because the State filed its notice of appeal in the circuit court on May 2, 2005, before the circuit court entered its order on May 5, 2005, that notice was premature and was not effective to invoke the jurisdiction of this court. Also, the State did not later file a notice of appeal in the circuit court after the circuit court entered its order granting the appellee’s “Motion to Dismiss Count I of Indictment.” Therefore, the State did not file an effective notice of appeal in the circuit court. Because the State did not file an effective notice of appeal both in this court and in the circuit court, this court does not have jurisdiction to consider this appeal. See Moore, supra. Accordingly, we dismiss this appeal.

OPINION OF SEPTEMBER 30, 2005, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED; APPLICATION FOR REHEARING OVERRULED.

McMILLAN, PM., and SHAW, J., concur; WISE, J., dissents, with opinion, which COBB, J., joins.

WISE, Judge,

dissenting.

Although I concurred in this Court’s original opinion in this case issued on September 30, 2005, I was troubled by our holding in that opinion. After careful consideration of the State’s application for rehearing and the accompanying brief, I must respectfully dissent from the denial of rehearing and from the Court’s substituted opinion.

The majority concludes that the State’s appeal is due to be dismissed because the State failed to file a notice of appeal with the circuit court following the entry of the court’s written order on May 5, 2005, dismissing Count I of Wilson’s indictment. The rationale for this holding is that the State’s notice of appeal filed in the circuit court on May 2, 2005, was premature because it was filed before the circuit court entered its written order dismissing Count I of Wilson’s indictment.

Upon further consideration of Rule 4, Ala.R.App.P., I believe subsection (a)(4), which applies to all appeals, governs the instant situation. Rule 4(a)(4) provides:

“A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.”

Contained in the record before this Court is the State’s notice of appeal, which states:

“Notice is hereby given that the State of Alabama appeals to the Alabama Court of Criminal Appeals from the pretrial order of the Circuit Court of the Eighth Judicial Circuit entered in this action on the 2nd day of May 2005.”

(C. 52.) Thus, contrary to the majority’s conclusion, the record does suggest that some type of hearing was, in fact, held on May 2, 2005, and that a ruling was issued on that date. The circuit court’s subsequent order, entered on October 6, 2005, confirms this fact. In my opinion, the State did what is required by the Alabama Rules of Appellate Procedure in order to perfect an appeal. Accordingly, I would grant the State’s application for rehearing and address the merits of the State’s claim.

COBB, J., concurs.

      . In his "Motion to Supplement the Record,” the appellee alleges that, on May 2, 2005, the trial court held a hearing on his motion to dismiss and stated from the bench that Count I of the indictment was due to be dismissed. However, the record does not include any indication that a hearing was, in fact, held on that date and that a ruling was issued on that date.
      On October 6, 2005, after we issued our original opinion on September 30, 2005, the circuit court entered a "Nunc Pro Tunc Order,” stating that, on May 2, 2005, it conducted a hearing on the appellee’s "Motion to Dismiss Count I of Indictment”; that, at the close of the parties’ arguments, it stated that Count I of the indictment was due to be dismissed; and that it "confirmed its ruling by the entry of a written Order dated May 4, 2005.” The circuit court’s order was, in essence, an untimely attempt to supplement the record. See Rule 10(g), Ala. R.App. P. Moreover, at the time the circuit court entered its order, this court had jurisdiction over the case. Therefore, the circuit court did not have jurisdiction to enter such an order, and its October 6, 2005, order was void. Accordingly, we strike the circuit court’s October 6, 2005, order.
      Also, on October 7, 2005, the State filed, in the circuit court, a motion to supplement the record with the circuit court’s October 6, 2005, "Nunc Pro Tunc Order.” However, Rule 10(g), Ala. R.App. P., provides that a motion to supplement the record must be filed "within 14 days (2 weeks) after the date shown on the copy of the certificate of completion of the record on appeal.” In this case, the certificate of completion was dated May 13, 2005. Therefore, the State's motion to supplement the record was not timely filed pursuant to Rule 10(g), Ala. R.App. P.
      For these reasons, the record that is properly before this court does not indicate that the circuit court had entered an order granting the appellee’s "Motion to Dismiss Count I of Indictment” before May 5, 2005. Although the result may appear to be harsh, this court is bound by the dates that are reflected in the record that is properly before us.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte State of Alabama (In re STATE of Alabama v. Michael Ivan WILSON).
    1050390.
    Supreme Court of Alabama.
    June 23, 2006.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Stephanie N. Morman and J. Thomas Leverette, asst. attys. gen., for petitioner.
    R. Scott Anderson, Decatur, for respondent.
   WOODALL, Justice.

We granted the State’s petition for cer-tiorari review of the Court of Criminal Appeals’ decision dismissing the State’s pretrial appeal from the trial court’s order granting a motion to dismiss count I of the indictment against Michael Ivan Wilson. State v. Wilson, 961 So.2d 907 (Ala.Crim.App.2005). We reverse and remand.

On June 25, 2004, a two-count indictment was returned against Wilson. He filed a motion to dismiss count I of the indictment, which charged him with second-degree unlawful manufacture of a controlled substance, a violation of § 13A-12-217(a)(2), Ala.Code 1975. On May 5, 2005, the trial court entered an order granting Wilson’s motion and dismissing count I of the indictment.

Ala. R.Crim. P. 15.7(a)(2) permits the State to appeal “to the Court of Criminal Appeals from a pre-trial order of the circuit court ... dismissing ... any part of an indictment.” Rule 15.7(b) requires that “[t]he notice of [a pre-trial] appeal shall be filed both with the clerk of the circuit court and with the clerk of the Court of Criminal Appeals within seven (7) days after the order has been entered.” (Emphasis added.) On May 5, 2005, the State timely filed its notice of appeal in the Court of Criminal Appeals. However, it filed its notice of appeal in the circuit court on May 2, 2005, three days before the circuit court entered its order dismissing count I of the indictment. That premature filing led the Court of Criminal Appeals to conclude that it did not have jurisdiction to consider the State’s appeal:

“Because the State filed its notice of appeal in the circuit court on May 2, 2005, before the circuit court entered its order on May 5, 2005, that notice was premature and was not effective to invoke the jurisdiction of this court. Also, the State did not later file a notice of appeal in the circuit court after the circuit court entered its order granting the [State’s] ‘Motion to Dismiss Count I of Indictment.’ Therefore, the State did not file an effective notice of appeal in the circuit court. Because the State did not file an effective notice of appeal both in this court and in the circuit court, this court does not have jurisdiction to consider this appeal.... Accordingly, we dismiss this appeal.”

State v. Wilson, 961 So.2d at 909-10 (footnote omitted).

“[T]he overriding policy governing our application of the Rules of Appellate Procedure [is] that ‘[t]hey shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.’ Rule 1, Ala. R.App. P.” Birmingham News Co. v. Horn, 901 So.2d 27, 42 (Ala.2004) (emphasis added). Ala. R.App. P. 4(a)(4), clearly recognizing that parties sometimes file premature notices of appeal, provides: “A notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after the entry and on the day thereof.” The State contends that the facts of record in this case support the application of Rule 4(a)(4), thereby rendering timely the notice of appeal it filed in the trial court on May 2, 2005. We agree.

As previously mentioned, the trial court’s order dismissing count I of the indictment was entered on May 5, 2005. In that order, the trial court stated that it had considered “the arguments of counsel,” suggesting that a hearing had been held. In a motion to supplement the record filed by Wilson on May 27, 2005, and later granted by the trial court, Wilson specifically stated that, “[o]n May 2, 2005, this court held a hearing on defendant’s motion to dismiss the indictment.” Further, in that same motion, Wilson acknowledged that the trial court, at the May 2 hearing, had “stated from the bench that Count I of the indictment was due to be dismissed.” Under these circumstances, Rule 4(a)(4) is clearly applicable. Therefore, the notice of appeal filed in the circuit court by the State on May 2, 2005, must be treated as having been filed after the entry of the order on May 5. Consequently, the State filed its notice of appeal as required by Ala. R.Crim. P. 15.7(b), thereby invoking the original appellate jurisdiction of the Court of Criminal Appeals.

For the foregoing reasons, the judgment of the Court of Criminal Appeals dismissing the State’s pretrial appeal is reversed. The cause is remanded to the Court of Criminal Appeals for it to consider the merits of the State’s appeal.

REVERSED AND REMANDED.

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


author: BASCHAB, Judge.

text:
    STATE of Alabama v. Michael Ivan WILSON.
    CR-04-1598.
    Court of Criminal Appeals of Alabama.
    Aug. 25, 2006.
    Rehearing Denied Sept. 15, 2006.
    Certiorari Denied Jan. 12, 2007 Aabama Supreme Court 1060024.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.
    Roy Scott Anderson, Decatur, for appel-lee.
   On Remand from the Alabama Supreme Court

BASCHAB, Judge.

The appellee, Michael Ivan Wilson, was charged with second-degree unlawful manufacture of a controlled substance, a violation of § 13A-12-217(a)(2), Ma.Code 1975, and unlawful possession of a controlled substance (methamphetamine), a violation of § 13A-12-212, Ala.Code 1975. Count I of the indictment alleged that the appellee

“did unlawfully possess on, to-wit: April 22, 2004, in or near Decatur, Morgan County, Alabama, a precursor chemical, to-wit: pseudoephedrine, with the intent that the chemical would be used in the unlawful manufacture of a controlled substance, in violation of Section 13A-12-217 of the Code of Alabama.”

(C.R. 30.) The appellee filed a motion to dismiss Count I of the indictment, which the circuit court granted. The State appealed from the circuit court’s order granting the appellee’s motion to dismiss Count I of the indictment.

On September 30, 2005, this court dismissed the State’s appeal on the ground that the State had filed a premature notice of appeal in the circuit court. On November 23, 2005, this court overruled the State’s application for rehearing; withdrew our opinion of September 30, 2005; substituted a new opinion therefor; and again dismissed the State’s appeal on the ground that the State had filed a premature notice of appeal in the circuit court. See State v. Wilson, 961 So.2d 907 (Ala.Crim.App.2005). On June 23, 2006, the Alabama Supreme Court reversed this court’s judgment; held that the State had filed its notice of appeal as required by Rule 15.7(b), Ala. R.Crim. P., and had properly invoked this court’s appellate jurisdiction; and remanded the case for this court to consider the merits of the State’s appeal. See State v. Wilson, 961 So.2d 911 (Ala.2006).

The State argues that the circuit court erroneously granted the appellee’s motion to dismiss Count I of the indictment. Specifically, it contends that the circuit court’s “construction of § 13A-12-217(a)(2) is in error” and that the indictment correctly charged the offense of second-degree unlawful manufacture of a controlled substance. (State’s brief at p. 7.) In its order granting the appellee’s motion to dismiss, the circuit court found that the indictment was defective because it alleged that the appellee possessed a single precursor substance and that § 13A-12-217(a)(2), Ala. Code 1975, “requires the possession of multiple ‘precursor substances.’ ” (S.R. 13.) However, this court has held that “§ 13A-12-217 does not require evidence of plural precursor substances.” Brand v. State, 941 So.2d 318 (Ala.Crim.App.2006). See also O’Callaghan v. State, 945 So.2d 467 (Ala.Crim.App.2006). Because the State was not required to prove that the appellee possessed more than one precursor substance, Count I of the indictment was not defective. Therefore, the circuit court erroneously granted the appellee’s motion to dismiss Count I of the indictment. Accordingly, we reverse the circuit court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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


author: McMILLAN, Presiding Judge.

text:
    Poshua Meon EDWARDS v. STATE of Alabama.
    CR-05-1499.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      John Keith Warren, Ashland, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

Poshua Meon Edwards was found guilty of escape in the third degree. The trial court sentenced him, as a habitual felony offender, to 21 years’ imprisonment. The State’s evidence tended to show the following. On May 24, 2005, Goodwater police officer Mike Rudd spotted Edwards, who was driving his automobile, and recognized him as the subject of a be-on-the-lookout bulletin (“BOLO”) issued earlier that day. Rudd contacted the police dispatcher and requested confirmation that there was a warrant for Edwards’s arrest. Based on his belief that there was a warrant, Rudd stopped Edwards’s vehicle. As he approached the vehicle, Rudd detected the smell of alcohol coming from the vehicle. The officer checked Edwards’s identification and had him perform several field-sobriety tests. Edwards then consented to a search of his car. Rudd confined Edwards in the patrol car while he conducted the search. Inside Edwards’s car, Rudd found a half-empty bottle of beer. The police dispatcher then responded to Rudd’s inquiry about the warrant for Edwards’s arrest. Rudd opened the door of the patrol car and stated: “Poshua, I’m going to have to place you [ ] under arrest because Coosa County has got a warrant for your arrest.” Edwards responded: “Coosa County don’t [sic] have an F’ing warrant on me.” He rushed from the patrol car, struggled with Rudd, and fled. Officers apprehended Edwards several months later.

Edwards contends that his arrest was illegal because the arresting officer did not have the arrest warrant in his personal possession at the time he attempted to arrest Edwards. He argues that the exceptions to the warrant requirement set out in § 15-10-3(a), Ala.Code, 1975, do not apply because the warrant was issued for contempt of court for failure to pay child support, which is not classified as a felony or a misdemeanor. The State notes that the present case cannot be factually distinguished from Johnson v. State, 675 So.2d 512 (Ala.Crim.App.1995), and that, since Johnson, the legislature has not amended § 15-10-3 to include lawful arrests without a warrant for failure to pay child support. The State asks this court to “take the appropriate action.”

In Johnson, this court held that the defendant’s arrest, which was based on a contempt citation for failure to pay child support, was illegal because the warrant was not for the commission of a felony or a misdemeanor and the arresting officers did not have the warrant in their possession. We also stated:

“We recognize that the appellant may have fallen through a crack in our statutory law. It is unlikely that the legislature intended the result we now reach. However, § 15-10-3(a)(6) is unambiguous. ‘[W]hen the statute is plain and unambiguous, no room exists for judicial construction and this court must enforce the statute as written.’ Allen v. Hawes, 539 So.2d 273, 276 (Ala.Civ.App.1988).
‘We call upon the legislature to amend this statute so that what has occurred here will not occur in the future. If the legislature wants to create an additional ground for lawful arrest without a warrant for failure to pay child support, this case would serve as an example of a fact situation that might justify such a statute. We are keenly aware, however, that our branch of government is obliged to interpret and apply laws and not to make them.”

Johnson, 675 So.2d at 514. We again urge the legislature to amend § 15-10-3, so that situations like the present one will not continue to occur.

Section 13A-10-33(a), Ala.Code 1975, provides that “[a] person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.” Section 13A-10-30(b)(l) defines custody as “[a] restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court.” Edwards’s arrest on the failure-to-pay-child-support warrant was not lawful. Therefore, Edwards was not in custody within the meaning of § 13A-10-33(a) when he fled.

For the foregoing reasons, Edwards’s conviction for escape in the third degree must be reversed and a judgment rendered in his favor on that charge.

REVERSED AND JUDGMENT RENDERED.

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


text:
    Corey Schirod SMITH v. STATE of Alabama.
    CR-05-1253.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.

      Stephen R. Glassroth, Montgomery; and Jerry Kristal and John M. Broaddus, Cherry Hill, New Jersey, for appellant.
    Troy King, atty. gen., and James R. Houts, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On September 1, 1995, the appellant, Corey Schirod Smith, was convicted of the capital offense of capital murder for the killing of Kimberly Ann Brooks. The murder was made capital because he committed it during the course of a kidnapping. See § 13A-5-40(a)(l), Ala.Code 1975. The jury unanimously recommended that he be sentenced to death. On September 14, 1995, the trial court followed the jury’s recommendation and sentenced him to death. We affirmed his conviction on direct appeal, see Smith v. State, 797 So.2d 503 (Ala.Crim.App.2000); the Alabama Supreme Court denied his petition for a writ of certiorari, see Ex parte Smith, 797 So.2d 549 (Ala.2001); and the United States Supreme Court denied his petition for a writ of certiorari, see Smith v. Alabama, 534 U.S. 962, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001). This court issued a certificate of judgment on May 11, 2001.

On June 7, 2002, the appellant filed a Rule 32 petition, challenging his conviction. On September 19, 2002, he filed a First Amended Petition. After the State responded, the circuit court conducted an evidentiary hearing and denied the petition. This appeal followed.

■ On direct appeal, this court summarized the facts of the case as follows:

“The State’s evidence tended to show the following. On February 24, 1995, Tallapoosa police discovered the charred body of Kimberly Brooks rolled in a carpet; the carpet was lying beside a dirt road in Bibb Town. The coroner testified that Brooks had been shot in the head and the stomach and that there was soot in her lungs and trachea; he testified that she died of the ‘shots to the head [and] the chest and possible asphyxiation and burning.’
“Smith handwrote the following confession for the police:
“‘Kim came to the house around 7:30 a.m. Wednesday morning with Labreasha Main. We was talking about getting married later on. My brother Reginald came and Main left. After awhile, Reginald left.
“ ‘When my mamma got off work, me and Kim got into an argument about another girl calling me. We went outside. I pulled my gun on her. Sanjay [Brooks] and Shontai [Smith] pulled up. I forced her into the van. I told Sanjay to go to Bibb Town, which he did. And, when we got there, Kim and I got out, continuing arguing.
“1 told her I love her, and if I couldn’t have her, no one could. She told me she loved me but things weren’t the same. I kissed her on the forehead and pushed her off me and shot her in the chest. And then she fell to the ground, and I shot her again toward her head.
“ ‘Shontai got out and helped me drag her into the bushes. We left. Sanjay dropped us off into the soft sands. When he returned, we got James Shealeyfs] car and got some gas and went back where I left her. When we got there, she was standing up, and she got in the car and sat besides me. I was scared.
“ ‘Sanjay rode from' Bibb Town to Reeltown looking for a place to set her on fire and bury her. I asked her what would she say if I took her to the hospital. She say, “I’m going to say Corey shot me.” We returned back to Bibb Town, and Sanjay drop us off — dropped us off. He told us to go ahead and finish her and he’ll be back.
“ ‘We put a trash bag over her- face until she died. I poured the gas on her, and Shontai lit the fighter. San-jay never returned.
“ ‘We left there and walked back to my house. Shontai spent the night. The next [day] he left and I never saw him again.’
“Smith’s codefendants, Sanjay Brooks and Shontai Smith, Smith’s cousins, pleaded guilty to murder and to kidnapping and received fife sentences in exchange for their trial testimony against Smith. Brooks was sentenced to concurrent fife sentences on each count and Shontai Smith was sentenced to two consecutive fife sentences. Both codefen-dants testified at trial and corroborated Smith’s statement. Shontai Smith further testified, concerning setting Brooks’s body on fire, that after he and Smith poured gasoline on Brooks and ignited her, the fire got out of control; to stop it they threw sand on Brooks’s body. The two then placed her body in a piece of carpet that had been left in the dump area and rolled her body in the carpet.
“Two other witnesses testified that on the day of the murder Smith told them that he had killed Kimberly. One witness, Larry Butler, testified that Smith told him that he had killed Kimberly and that he needed gasoline to dispose of her body.”

Smith, 797 So.2d at 509-10.

The appellant argues that the circuit court abused its discretion in striking his Second Amended Petition. Regarding amendments to Rule 32 petitions, Rule 32.7(b), Ala. R.Crim. P., provides: “Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.” Also, Rule 32.7(d), Ala. R.Crim. P., provides, in pertinent part: “Leave to amend shall be freely granted.”

In Ex parte Rhone, 900 So.2d 455, 459 (Ala.2004), the Alabama Supreme Court held:

“The right to amend is limited by the trial court’s discretion to refuse an amendment based upon factors such as undue delay or undue prejudice to the opposing party. That limitation is, in this Court’s opinion, sufficient to protect the rights of the parties, while allowing the trial court sufficient control over the management of its docket.”

Subsequently, in Ex parte Jenkins, [Ms. 1031313, April 8, 2005] — So.2d —, - (Ala.2005), the Alabama Supreme Court explained:

“As we held in Ex parte Rhone, ... a petitioner does not have the unfettered right to file endless amendments to a Rule 32 petition. The right to amend is limited by the trial court’s discretion to refuse to allow an amendment if the trial court finds that the petitioner has unduly delayed filing the amendment or that an amendment unduly prejudices the State. Such an exercise of the trial court’s discretion would certainly be appropriate, for example, if, on the eve of an evidentiary hearing, a Rule 32 petitioner filed an amendment that included new claims of which the State had no prior notice and as to which it was not prepared to defend.
“We emphasize that the concepts of ‘undue delay’ and ‘undue prejudice’ as discussed in this opinion and in Ex parte Rhone apply to the trial court’s management of its docket and to the petitioner’s attention to his or her case. Those concepts cannot be applied to restrict the petitioner’s right to file an amendment clearly provided for in Rule 32.7 simply because it states a new claim that was not included in the original petition.”

Finally, in Ex parte Woods, 957 So.2d 533, 534-37 (Ala.2006), the Alabama Supreme Court applied its holdings in Rhone and Jenkins as follows:

“On July 26, 2002, Woods filed a petition for postconviction relief, pursuant to Rule 32, Ala. R.Crim. P. On September 27, 2002, the State responded. On November 16, 2002, Woods filed an amended petition. On December 19, 2002, the circuit court conducted a status conference to narrow the issues presented by Woods’s petition and to identify any claims that should be precluded. At the close of the conference, the circuit court ordered both parties to submit proposed orders by January 31, 2003. On January 24, 2003, instead of filing a proposed order as directed by the circuit court, Woods filed a second amended petition. On January 28, 2003, the State objected to Woods’s second amendment, arguing:
“ ‘This second amended petition is 81 pages longer than Woods’s first amended petition. In addition, the section numbers, page numbers and paragraph numbers in Woods’s second amended petition are completely different than those in his first amended petition. Requiring the State to change its proposed order to correspond to Woods’s second amended petition at this late date would work a tremendous hardship on the State’s counsel.’
“On January 30, 2003, the circuit court struck Woods’s second amended petition. On February 7, 2003, the State filed its proposed order, which summarily dismissed all of Woods’s claims. On February 11, 2003, Woods moved the court to reconsider its order striking his second amended petition. On February 20, 2003, Woods filed his proposed order. On July 2, 2003, a little less than a year after Woods filed his Rule 32 petition, the circuit court, adopting the State’s order in its entirety, summarily dismissed the petition.
“Woods appealed the summary dismissal of his petition to the Court of Criminal Appeals. In his brief to the Court of Criminal Appeals, Woods contended that the circuit court exceeded the scope of its discretion in striking his second amended petition. On August 27, 2004, the Court of Criminal Appeals, applying the reasoning and holding in Coral v. State, 900 So.2d 1274 (Ala.Crim.App.2004), which cites McWilliams v. State, 897 So.2d 437 (Ala.Crim.App.2004), and Rhone v. State, 900 So.2d 443 (Ala.Crim.App.2004), held that the circuit court did not exceed its discretion in striking Woods’s second amended petition. Recognizing that the second amended petition was not based on surprise, newly discovered evidence, or changed circumstance, the Court of Criminal Appeals held that the circuit court did not err in striking Woods’s second amended petition, and it affirmed the circuit court’s dismissal of Woods’s Rule 32 petition. Woods v. State, 957 So.2d 492 (Ala.Crim.App.2004).
“Woods filed a petition for a writ of certiorari in this Court on December 3, 2004. On June 22, .2006, this Court issued the writ to determine, among other matters, whether the circuit court exceeded the scope of its discretion by striking Woods’s second amended petition.
“In its brief to this Court, the State admits that when this Court’s holding in Ex parte Rhone and its progeny is applied to the facts of this case, the circuit court exceeded the scope of its discretion in striking Woods’s second amended petition, and it requests that we remand the cause. We agree. The facts of this case do' not establish that the circuit court’s consideration of Woods’s second amended petition would give rise to actual prejudice to the State or cause undue delay. Therefore, the circuit court exceeded its discretion in striking Woods’s second amended petition, and a remand to the circuit court is proper to allow that court to consider Woods’s second amended petition.”

The following dates and events are relevant to an understanding of the issue in this case:

June 7, 2002 The appellant filed his Rule 32 petition, which included an assertion that his trial counsel rendered ineffective assistance because they did not investigate and present mitigating evidence regarding his mental health problems.
August 22, 2002 The State filed its answer to the appellant’s petition.
September 19, 2002 The appellant filed his First Amended Rule 32 Petition. In the petition, he listed his alleged mental health problems and included an affidavit from Dr. Michael S. Maher regarding his mental health problems.
September 25, 2002 The State filed a “Motion to Set a Deadline for Amendments to Rule 32 Petition.”
October 8, 2002 The appellant filed a “Petitioner’s Response to Respondent’s Motion to Set a Deadline for Amendments to Rule 32 Petition.”
October 17, 2002 The State filed its answer to the appellant’s First Amended Petition.
October 29, 2002 The State filed a “State’s Reply to Smith’s Opposition to the Motion to Set a Deadline for Amendments to Rule 32 Petition.” In its response, the State conceded that, “[e]ven with a deadline for filing further amendments, the State is not contending that there are no circumstances in which an amendment could not be filed. Clearly, if after the expiration of an amendment deadline, Smith demonstrates to this Court that he has discovered ... a facially meritorious claim that could not have been, with diligence, included in his Rule 32 petition before the expiration of the deadline, he may move this Court for leave to amend his Rule 32 petition.” (C.R. 207-08.)
November 15, 2002 The circuit court set a deadline of December 31, 2002, for amendments to the petition. However, it noted that that ruling was “conditioned ... upon the Court’s reservation of consideration for further proposed amendment, only upon showing of good cause with evidentia-ry basis.” (C.R. 210.) It also scheduled an evidentiary hearing for January 22, 2003.
November 19, 2002 The State filed a motion to continue the evidentiary hearing due to military obligations of the State’s counsel.
November 26, 2002 The circuit court rescheduled the evidentiary hearing for March 25, 2003.
January 7, 2003 The State filed a motion to continue the evidentiary hearing due to military obligations of the State’s counsel.
January 24, 2003 The circuit court rescheduled the evidentiary hearing for June 17, 2003.
April 3, 2003 The appellant filed a motion to continue the evidentiary hearing so his experts would have time to investigate and prepare to present evidence concerning his ineffective-assistance claims.
April 23, 2003 The circuit court rescheduled the evidentiary hearing for September 30, 2003.
September 2, 2003 The appellant filed a motion to continue the evidentiary hearing so his experts could conduct additional investigation and testing.
September 12, 2003 The parties filed a stipulation to continue the evidentiary hearing until November 24, 2003, or January 13, 2004.
September 17, 2003 The circuit court rescheduled the evidentiary hearing for November 26, 2003, or January 2004.
July 8, 2004 The State filed a “Motion for a Prehearing Conference.”
July 19, 2004 The appellant filed a “Response to Motion for a Prehearing Conference and Motion for Reciprocal Discovery.”
September 13, 2004 The State filed a “Request for Discovery of Expert Witness Data.”
February 1, 2005 The State filed a “Motion for Access to Smith in Order to Conduct a Mental Health Evaluation.”
February 1, 2005 The State filed a “State of Alabama’s Motion for Disclosure of Witnesses and Exhibits Smith Intends to Introduce at the Evidentia-ry Hearing.” In that motion, the State asserted: “The bulk of the claims in Smith’s amended Rule 32 petition involve allegations of ineffective assistance of counsel. Many of these claims involve Smith’s allegation that he suffers from assorted mental health disorders. In order to properly prepare for and possibly rebut any allegation of a mental health disorder offered by Smith’s counsel, it is necessary for the State’s mental health expert to have access to the petitioner for the purpose of conducting interviews and tests.” (C.R. 252-53.)
March 16, 2005 The circuit court ordered that Dr. Michael Maher and Ms. Marjorie Hammock give the following documents to defense counsel and that defense counsel then forward them to counsel for the State within fourteen days: “any test response sheets, score sheets, questionnaires, reports of examinations or tests, medical reports, or other similar documents taken pursuant to the examination of the petitioner or that he/she has reviewed and will rely on in formulating an opinion in this matter.” (C.R. 259.)
March 16, 2005 The circuit court ordered that Dr. Charles Golden give the following documents to defense counsel and that defense counsel then forward them to counsel for the State within ten days: “any test response sheets, score sheets, questionnaires, reports of examinations or tests, medical reports, or other similar documents taken pursuant to his examination of Mr. Smith that he has reviewed and will rely on in formulating an opinion in this matter.” (C.R. 260.) The circuit court also ordered the State to provide to the defense “any similar data that mental health experts retained by Respondent review and rely on in formulating an opinion in this matter.” (C.R. 260.)
March 16, 2005 The circuit court granted the State’s “Motion for Access to Smith in Order to Conduct a Mental Health Evaluation.”
April 1, 2005 The circuit court scheduled an evidentiary hearing for July 25, 2005, and ordered the parties to submit briefs setting forth the issues to be considered at least fourteen days before the evidentiary hearing.
June 20, 2005 The circuit court conducted a conference telephone call with counsel for the appellant and the State.
June 21, 2005 The circuit court ordered that counsel for both parties produce “any notes, records, reports, documents, statements, or other investigative material reviewed, utilized, or created by any expert witness to be called at the hearing on the Rule 32 Petition, which relate to this case, and any and all material or information that any expert relied upon in making or forming an opinion. This material shall include the name, address, and current telephone number of any person who provided information contained therein.” (C.R. 266.)
June 28, 2005 The circuit court ordered that the appellant produce to the State 1) test scores for tests Dr. Charles Golden administered during his evaluation of the appellant by June 22, 2005; 2) a copy of exhibits to be admitted during the evidentiary hearing by July 1, 2005; and 3) a list of potential witnesses for the evidentiary hearing by July 1, 2005. It also ordered the State to produce to the appellant 1) a copy of exhibits to be admitted during the evidentiary hearing by July 8, 2005; 2) a list of potential witnesses for the evidentiary hearing by July 8, 2005; 3) a summary of Dr. Glen King’s opinion concerning his evaluation of the appellant by June 22, 2005. Finally, the circuit court ordered that the parties could depose experts who might testify during the evidentiary hearing.
July 12, 2005 The State filed its witness and exhibit list.
July 12, 2005 The State filed a “Respondent’s Memorandum Brief Concerning Issues to Be Considered by the Court at the Rule 32 Evidentiary Hearing.” Regarding the appellant’s background, the State complained that the defense did not provide notes of Marjorie Hammock’s interviews with the appellant’s family members and friends until late June and early July 2005; that the appellant had not included any allegations about his background in his original petition or first amended petition; that the appellant had not previously named any witness who would testify about any of these matters; that the information had been available to the defense for some time; and that the State did not have any prior notice about the appellant’s background until Hammock’s notes were produced. Regarding the appellant’s mental health, the State complained that Dr. Michael Maher is the only expert identified in the petition; that, in his affidavit in support of the first amended petition, Maher had concluded only that the appellant suffered from Post Traumatic Stress Disorder and Poly Substance Abuse; that, during a deposition on July 8, 2005, Maher concluded that the appellant suffered from frontal and temporal lobe impairment, brain damage, and a mood disorder, but that he had not included such conclusions in his affidavit; that Maher should not be allowed to testify to any diagnosis that had not been specified in the petition or first amended petition; that no other expert had been identified in the petition or first amended petition; and that the defense should not be allowed to elicit any other expert’s testimony during the evidentiary hearing.
July 18, 2005 The defense filed “Petitioner, Corey Smith’s, Response to Claim for Dismissal Contained in Respondent’s Memorandum Brief, and in the Alternative Motion to Amend First Amended Rule 32 Petition.” In that response, the defense argued that, during a telephone conference in July 2004, the circuit court had granted the State the ability to depose all of the defense’s experts, including Maher, Golden, and Hammock; that the defense had provided a summary of the testimony of Maher, Golden, and Hammock to the State on August 13, 2004; that the State had informed the defense that it did “ ‘not feel the need to push for any further disclosure (depositions) other than the witness summary you provided’ ” on August 24, 2004; that the defense had provided all materials from experts to the State in June 2005; that the State again declined to depose Golden and Hammock; that the State hired Dr. Glen King to conduct aneuropsyeho-logical evaluation of the appellant that was similar to the one Golden had conducted; that the State had known the appellant’s claims, the identity of the appellant’s experts, and the opinions of the appellant’s experts for one year; and that the State had not articulated any prejudice, inability to proceed, or lack of notice of the witnesses’ opinions. If the circuit court did not deny the State’s motion to dismiss, the defense requested that it be allowed to amend the petition to include the facts the State contended were missing from the petition. In support thereof, it argued that the circuit court had indicated that it would consider allowing further amendment upon a showing of good cause; that good cause existed; that it was not making any new claims; that the State had known about the additional witnesses and their opinions for one year and had had the opportunity to depose them, but it had chosen not to; and that it sought permission to make substantive changes to only one paragraph of the petition.
July 18, 2005 The defense filed a “Second Amended Petition for Relief from Conviction and Sentence Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.”
July 20, 2005 The State filed an “Objection to and Motion to Strike Petitioner’s Second Amended Petition for Relief from Judgement Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure.” In support of its pleading, the State argued that there was undue delay because the defense filed the amended petition only seven days before the scheduled evidentiary hearing even though it had known the information at least as early as August 13, 2004. It also argued that it was unduly prejudiced because it could not file an answer and could not be prepared to argue or rebut the new factual allegations.
July 21, 2005 The circuit court held a hearing on the State’s motion to limit Maher’s testimony and to exclude Golden’s and Hammock’s testimony.
July 22, 2005 The circuit court granted the State’s motion to limit Maher’s testimony to the information that was set forth in his affidavit that was attached to the First Amended Petition and to exclude Golden’s and Hammock’s testimony.
July 25, 2005 The defense filed a “Motion to Preclude All Testimony of Dr. Glen King.”
July 25, 2005 The circuit court denied the appellant’s motion to amend the First Amended Petition.
July 25-26, 2005 The circuit court conducted an evidentiary hearing.
March 3, 2006 The circuit court entered an order denying the petition.

The appellant argues that consideration of the Second Amended Petition would not have caused prejudice to the State or undue delay. Specifically, he contends that the State had been on notice of his experts’ testimony regarding his mental health for nearly one year and that it had retained its own mental health expert and was fully prepared to defend against his claims. The State argues that it would have been prejudiced by consideration of the Second Amended Petition because it “did not know of [the] newly alleged facts until late June and early July of 2005, just weeks prior to the evidentiary hearing.” (State’s brief at p. 18.) With regard to undue delay, the State argues:

“[T]he undue delay analysis must focus on the [circuit] court’s exercise of its discretion to manage its docket. For example, in this case the [circuit] court was not required to accept a proposed amendment where it was very unlikely that the State — which was trying to prepare for an evidentiary hearing in seven days — would have been able to divert its attention and resources to the drafting of a responsive pleading. This short time period for filing a responsive pleading could have created yet another need for- a continuance of the evidentiary hearing'which had already been continued numerous times.”

(State’s brief at p. 13 n. 1.)

In this case, the only substantive differences between the First Amended Petition and the Second Amended Petition were in paragraph 105. Paragraph 105 of the First Amended Petition included the following allegations:

“Most importantly, Corey Smith is and was, at the time of the crime, suffering from Post-Traumatic Stress disorder, Chronic, Severe, associated with abuse and neglect during childhood, and, independently, Poly-Substance Abuse, including alcohol, marijuana and crack cocaine. See, Expert Affidavit of Dr. Michael S. Maher, M.D., attached hereto as Exhibit ‘B’. Moreover, ‘[a]s a consequence of each of these diagnoses independently and certainly in combination, Mr. Smith’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired. Further, the capital offense was committed while Mr. Smith was under the influence of extreme mental and emotional disturbance.’ Id. No such expert evidence was presented at Mr. Smith’s sentencing hearing and no reason exists, other than counsels’ ineffectiveness, for failing to do' so.”

(C.R. 153.) Paragraph 105 of the Second Amended Petition included the following allegations:

“A. Most importantly, Corey Smith is and was, at the time of the crime, suffering from Posh-Traumatic Stress disorder, Chronic, Severe, associated with abuse and neglect during childhood, and, independently, Poly-Substance Abuse, including alcohol, marijuana and crack cocaine, frontal and temporal lobe impairment, brain damage and a mood disorder. See, Expert Affidavit of Dr. Michael S. Maher, M.D., attached hereto as Exhibit ‘B’, and Deposition of Dr. Maher dated July 8, 2005, attached hereto as Exhibit B.l. Moreover, ‘[a]s a consequence of each of these diagnoses independently and certainly in combination, Mr. Smith’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired. Further, the capital offense was committed while Mr. Smith was under the influence of extreme mental and emotional disturbance.’ Id. No such expert evidence was presented at Mr. Smith’s sentencing hearing and no reason exists, other than counsels’ ineffectiveness, for failing to do so.
“... B. Corey Smith’s brain impairment, at the time of the offense, included significant cognitive problems, including difficulty with higher, or executive functioning, that influenced his ability to make judgments and conform his behavior to the requirements of law. See, Affidavit of Dr. Charles Golden attached hereto as Exhibit B.2. These impairments are evidenced in school and mental health records existing at the time and by testing done by Dr. Golden. The State has been provided with a copy of Dr. Golden’s notes and test results. Additionally, the cognitive impairments have been verified by testing done by the State’s retained psychologist Dr. Glen King, who evaluated Corey Smith in May 2005. No such expert evidence was presented at Mr. Smith’s sentencing hearing and no reason exists, other than counsels’ ineffectiveness, for failing to do so.
“... C. At the time of the offense, Corey Smith suffered from a family history that included inter-generational violence and chaos, reflected in part by his father’s and stepfather’s abuse of his mother and her retaliation, similar male/female physical abuse by a number of other male relatives, his mother’s use of alcohol throughout her pregnancy with him, a traumatic birth including the umbilical cord having been wrapped around his neck, verbal and physical abuse and neglect, poverty and deprivation, drug and alcohol abuse, limited physical, mental health and educational resources, overwhelming emotional and educational challenges without positive role models or supportive interventions. The impact on Corey Smith was profound and extensive and directly affected the appropriateness of his behavior, his judgment and his conduct. He was not able to overcome these influences. See, Affidavit of Marjorie Hammock, MSW, LISW attached hereto as Exhibit B.3 and as reflected in the summary of biopsychosocial interviews conducted by Ms. Hammock, attached hereto as Exhibit B.4. No such expert evidence was presented at Mr. Smith’s sentencing hearing and no reason exists, other than counsels’ ineffectiveness, for failing to do so.”

(C.R. 379-81.) The defense also attached affidavits from Maher, Golden, and Hammock; the July 8, 2005, deposition of Maher; and Hammock’s interview summaries to the Second Amended Petition.

During the hearing on July 21, 2005, defense counsel argued:

“Your Honor, I ask you to look at Exhibit B, the August 13th letter with the summary and the State’s response. I gave them a disclosure. I gave them the opinions and the basis of the opinions in terms of what they reviewed. When Dr. Golden says his opinion will be Mr. Smith has cognitive problems, that’s brain damage. And, when he says it involves higher executive functioning, he’s talking about a specific part of the brain. These problems existed at the time of the incident and influenced Mr. Smith’s ability to make judgments and conform his behavior to requirements of the law. So he’s saying I’ve done these tests; this is what I found; it shows brain injury. This is the consequence of the brain injury. And the State’s response to me was that’s sufficient for us. That’s what they told me at the time, and they declined to take his deposition that you said they could take at that time. And have never taken his deposition.
“So how can they come in now and say, we don’t know what he’s going to say and we’re prejudiced when they specifically said what you gave us was sufficient and we didn’t want — they’re putting blinders on, it seems, and then complaining we don’t know what he’s going to say.
“Ms. Hammock’s summary which was August of '04, it says she interviewed relatives, friends, teachers, coaches, other individuals, records and documents, psychological, educational, social history documents. Gives her opinion. They told me at the time that is sufficient for us. We’re satisfied with that disclosure. You said, if you want to ask her in detail at a deposition, ask her. And they said we don’t want to take her deposition. So I don’t see how they can come in here now and complain we’re prejudiced because we don’t know what they’re going to say when they refused to find out.
“Now, it is not a situation where [the State’s counsel] was saying we had to dig this information out. The petitioner was providing this information to them pursuant to conferences with the Court and discussions with the Court and discussions with the counsel as to what it is they were requesting and what you were requiring. And we did that all the way through. There’s nothing that they didn’t say satisfied them that we’re going to be presenting. And, having said we’re satisfied and then asking as time went on for more and more information and still declining to take the depositions, I don’t see how they can say we’re prejudiced because we don’t know what they’re going to say.
“They do know what the witnesses are going to say. They had the opportunity to find out in whatever detail they wanted what they were going to say. And what I provided them at the time — not now that we’re at the eve of the hearing — what I provided them a year ago was satisfactory. So I would submit the State has waived any claim that it’s not satisfactory when they did — If they had said to me, this isn’t enough; it’s not sufficient; give me more detail. Or, based on these summaries, we’re going to take the deposition to find the detail. That was the Court’s order. And I just think it’s unfair now to say you didn’t give us enough when they said what you gave us was enough at the time.
“... I’m not saying the summaries make the first amended petition sufficient. I’m not saying that. What I am saying is you should allow the second amended petition because there’s nothing new or added in the second amended petition that the State hasn’t been aware of already. So there’s no prejudice to them. There’s no surprise. There’s no frustration of their ability to defend. So I’m not saying the discovery saves the first petition. I’m saying the discovery is the reason why a second amended petition amendment — a second amendment is reasonable and fair.”

(R. 46-49, 51.) For the reasons set forth herein, we agree.

Based on the Alabama Rules of Criminal Procedure and the Alabama Supreme Court caselaw quoted above, the circuit court erred when it set a deadline for amendments and stated that it would allow further amendments “only upon showing of good cause with evidentiary basis.” Instead, the circuit court could have properly denied an amendment only upon a finding of undue delay or undue prejudice. When it struck the Second Amended Petition, the circuit court did not cite either of these reasons.

In his Second Amended Petition, the appellant did not raise new claims of which the State did not have prior notice and as to which it was not or could not have been prepared to defend. In fact, he amended only one paragraph — paragraph 105 — in his Second Amended Petition. In that paragraph, he fleshed out with more specificity his previous claim regarding his alleged mental health problems and the experts who would testify about such problems. The State argues that it did not have the specific information about which the experts intended to testify until shortly before the evidentiary hearing. However, the record shows that the State knew about the appellant’s experts and their conclusions almost one year before the appellant filed his Second Amended Petition. Also, it had the opportunity to depose the experts and learn more specific information about their opinions almost one year before the appellant filed his Second Amended Petition, and it specifically chose not to do so. In fact, the State waited until July 8, 2005, and then deposed only Maher. Further, even before the appellant attempted to file a Second Amended Petition, as evidenced by its “Memorandum Brief Concerning Issues to Be Considered by the Court at the Rule 32 Evi-dentiary Hearing,” the State was fully aware of his claims regarding his mental health condition. As the appellant’s counsel noted during the evidentiary hearing:

“I would suggest that because of the discovery that’s gone on in this case and because of the opportunity that the State had to find out these opinions in exhausting detail a year ago, that everybody is on a level playing field here.
“There are no surprises here.... I amended one paragraph which was 105. I did not add any new legal claims. All I did was I specified the witnesses and the information that the State has and has had. So it’s a technical amendment to be more specific, but it’s adding information that the State has had.”

(R. 13-14.) Finally, the State retained its own mental health expert to evaluate the appellant and to rebut the appellant’s evidence regarding his mental health. Therefore, consideration of the Second Amended Petition, which simply expanded on a claim that had been included in both the original petition and the First Amended Petition, would not have caused undue prejudice to the State.

Also, consideration of the Second Amended Petition would not have adversely affected the circuit court’s control over the management of its docket. The record does not indicate that the appellant neglected his case. Rather, it establishes that, despite several continuances, the parties continued to conduct and exchange discovery. The State argues that it would not have had time to respond to the Second Amended Petition before the eviden-tiary hearing and that another continuance might have been required. However, the only substantive changes were in paragraph 105 of his Second Amended Petition. As is set forth above, the State was already aware of the additional information that was included in the Second Amended Petition. Therefore, it could have easily filed a response to the Second Amended Petition, and there would not have been any reason for any further delay of the evidentiary hearing. Accordingly, consideration of the Second Amended Petition would not have caused undue delay.

Under the specific facts of this case, we conclude that consideration of the appellant’s Second Amended Petition would not have caused actual prejudice to the State or caused undue delay. Therefore, the circuit court abused its discretion in striking the appellant’s Second Amended Petition. Accordingly, we reverse the circuit court’s judgment and remand this case to the circuit court for that court to consider the appellant’s Second Amended Petition.

REVERSED AND REMANDED.

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

      . On July 18, 2005, the appellant filed a Second Amended Petition. However, the State objected to the amendment, and the circuit court refused to allow the appellant to amend his petition at that time. See infra.

      . In a footnote, the State concedes that, "[i]n a letter dated August 13, 2004, Smith’s attorney advised that Marjorie Hammock ‘has spoken with and/or is relying on interviews with Corey Smith’s relatives, friends, teachers, coaches, and other individuals in the community.’ ” (C.R. 287.)

      . In a footnote, the State concedes that, "[i]n the August 13, 2004 letter, Dr. Charles Golden was identified as an expert who would say that Smith had significant cognitive problems or difficulty with higher or executive functioning. Smith has not pleaded in the petition or amended petition that he had significant cognitive problems or difficulty with higher or executive functioning.” (C.R. 289.)

      . Because of our disposition of the argument addressed in this opinion, we pretermit discussion of the remaining arguments the appellant raises in his brief to this court.


author: BASCHAB, Judge. SHAW, Judge,

text:
    James E. WILLIAMS, Jr. v. STATE of Alabama.
    CR-05-1823.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Kimberly Griffin Kervin, Prattville, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

Pursuant to a negotiated agreement, the appellant, James E. Williams, Jr., pled guilty to unlawful possession of a controlled substance (hydrocodone), a violation of § 13A-12-212(a)(2), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of fifteen years in prison. See § 13A — 5—9(c)(1), Ala.Code 1975. It also imposed a $1,000 Demand Reduction Assessment Act fine. See § 13A-12-281, Ala.Code 1975. The appellant filed a “Motion to Allow Defendant to Withdraw Plea of Guilt and Enter Order Vacating Defendant’s Sentence,” which the trial court denied after conducting a hearing. This appeal followed.

The record indicates that the appellant was indicted for attempted unlawful possession of a controlled substance. However, he pled guilty to the completed offense of unlawful possession of a controlled substance. We addressed a similar situation in Bailey v. State, 848 So.2d 274, 275-78 (Ala.Crim.App.2002), as follows:

“On March 25,1995, Paul Eugene Bailey was indicted for first-degree robbery and attempted first-degree kidnapping. Bailey was convicted of first-degree robbery and second-degree kidnapping....
“On January 9, 2002, Bailey filed this, his fourth, Rule 32, Ala. R.Crim. P., petition. Without receiving a response from the State, the circuit court summarily denied the petition on March 8, 2002. Bailey filed a ‘Motion to Amend, Alter, or Vacate Judgment,’ which the circuit court also summarily denied. This appeal followed.
“In his petition, Bailey claimed that the trial court was without jurisdiction to render its judgment or to impose sentence because, although he was indicted for the offense of attempted first-degree kidnapping, the trial court erroneously ‘amended’ his indictment to charge second-degree kidnapping, of which he was subsequently convicted. Taking judicial notice of the record of Bailey’s direct appeal, we agree with his claim. See Hull v. State, 607 So.2d 369 (Ala.Crim.App.1992).
“The problem arises in a case, such as here, where the appellant was indicted for the inchoate, or imperfected, offense of attempted first-degree kidnapping and was subsequently convicted for the perfected offense of second-degree kidnapping, where no facts were alleged in the indictment, or adduced at trial for that matter, that indicated that an actual abduction had occurred.
“ ‘(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“ ‘(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged [or] to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.’
“§ 13A-l-9(a), Ala.Code 1975.
“The offense of second-degree kidnapping, which requires an actual abduction, cannot be a lesser-included offense of the offense of attempted first-degree kidnapping, which, as an attempted crime, requires a failure to consummate the abduction. See Committee Comments to § 13A-4-2, Ala.Code 1975. Put another way, attempted first-degree kidnapping requires proof of only ‘any overt act towards the commission of an abduction under § 13A-6-43(a). § 13A-4-2(a), Ala.Code 1975. Second-degree kidnapping requires proof of an additional element; second-degree kidnapping requires proof of the abduction, that is, one step further than a mere attempt. A lesser-included offense cannot require proof of more elements than the underlying offense.
“Moreover, we note that, even if Bailey had acquiesced to this ‘amendment,’ of the indictment his conviction and sentence would nonetheless be void. Had the trial court obtained Bailey’s consent to amend the indictment charging attempted first-degree kidnapping by adding the fact that an abduction had actually taken place, a new offense would have been charged because attempted first-degree kidnapping, which does not require proof of an actual abduction, is not ‘broad enough to include such an element,’ as proof of an actual abduction is required in order to convict a defendant of second-degree kidnapping. See, e.g., Ex parte Cole, 842 So.2d 605, 609 (Ala.2002).
“For the reasons stated above, we remand this cause in order for the circuit court to vacate Bailey’s conviction and sentence for second-degree kidnapping. However, Bailey’s original indictment for attempted first-degree kidnapping remains valid. Cole, supra.

(Footnote omitted.)

In this case, the indictment alleged that the appellant

“did with the intent to commit the crime of Unlawful Possession or Receipt of a Controlled Substance, in violation of Section 13A-12-212, knowingly and unlawfully attempt to obtain Hydrocodone, a controlled substance, by fraud, deceit, misrepresentation or subterfuge, or by the alteration of a prescription or written order, in violation of Section 13A-12-203, Code of Alabama, 1975, in that the said [appellant] did present a prescription for Lortab, a compound or mixture which contains Hydrocodone, to be filled by a pharmacist with knowledge that said prescription was forged, or otherwise not authorized by law, AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA.”

(C.R. 10.)

“A person is guilty of an attempt to commit a controlled substance crime if he engages in the conduct defined in Section 13A-4-2(a), and the crime attempted is a controlled substance crime.”

§ 13A-12-203(a), Ala.Code 1975.

“A person commits the crime of unlawful possession of controlled substance if:
“(2) He obtains by fraud, deceit, misrepresentation or subterfuge or by the alteration of a prescription or written order or by the concealment of a material fact or by the use of a false name or giving a false address, a controlled substance enumerated in Schedules I through V.”

§ 13A-12-212(a)(2), Ala.Code 1975.

The offense of unlawful possession of a controlled substance requires proof that the appellant actually obtained a controlled substance. Because the offense of unlawful possession of a controlled substance requires proof of the completed offense, it was not included m the offense of attempted unlawful possession of a controlled substance. Therefore, the trial court did not have jurisdiction to accept the appellant’s guilty plea to unlawful possession of a controlled substance. Accordingly, we remand this case to the trial court with instructions that that court set aside the appellant’s conviction for unlawful possession of a controlled substance. However, the indictment for attempted unlawful possession of a controlled substance remains valid, and the State may try the appellant on that charge.

REVERSED AND REMANDED.

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

SHAW, Judge,

dissenting.

In light of the Alabama Supreme Court’s recent opinion in Ex parte Seymour, 946 So.2d 536 (Ala.2006), I do not believe that a criminal defendant’s pleading guilty to a crime that is not a lesser-included offense of the offense charged in the indictment is a defect that deprives a trial court of jurisdiction. See, e.g., Cobb v. State, 962 So.2d 891, 895 (Ala.Crim.App.2006) (opinion on application for rehearing), and Taylor v. State, 953 So.2d 429 (Ala.Crim.App.2006). Therefore, because this issue is not jurisdictional and because it was not raised at trial and has not been raised on appeal, I respectfully dissent.


author: PER CURIAM.

text:
    Jemberson PETION, Petitioner, v. Ric L. BRADSHAW, Sheriff of Palm Beach County, Respondent.
    No. 4D07-625.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2007.
    Carey Haughwout, Public Defender, Carol Bickerstaff and Daniel Cohen, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

When petitioner was arrested for possession of cocaine and possession with intent to sell, the first appearance magistrate set a bond amount based on the bond schedule of $5,000 for the charge of possession of cocaine with intent to sell, multiplied by the number of small packets that contained the cocaine, thirty-nine in all, or $195,000. The weight of the cocaine is unknown at this time. Because it was legally wrong to consider each packet as a separate charge, the amount of the bond was an abuse of discretion. The petition for habeas corpus is granted and we direct that the $195,000 bond for appellant’s charge for possession of cocaine be reduced to a reasonable bond in accordance with the crime charged.

Under section 893.13, Florida Statutes, the degree of the crime of possession of cocaine is determined by the weight of the cocaine possessed at a given time, not the number of containers holding it. See also Lundy v. State, 596 So.2d 1167 (Fla. 4th DCA 1992), receded from, on other grounds, Gibbs v. State, 676 So.2d 1001 (Fla. 4th DCA 1996), decision quashed, 698 So.2d 1206 (Fla.1997). In Lundy, we said,

[T]o hold that a separate possessory crime is committed for each packet or package of the controlled substance within an offender’s possession at a given time and place goes well beyond the statutory elements of the crime. To allow such an arrest would lead to absurd scenarios, including the state’s charging more counts for the same amount of narcotics only due to the increased number of small packages of that illegal substance.

Id. at 1168.

Petition granted.

STONE, WARNER and HAZOURI, JJ., concur.


author: SILBERMAN, Judge.

text:
    SONIC AUTOMOTIVE, INC., a North Carolina corporation, Appellant, v. Enrique Y. GALURA and Marisa Hazelton, on behalf of themselves and all others similarly situated, Appellees.
    No. 2D05-3377.
    District Court of Appeal of Florida, Second District.
    April 25, 2007.
    Rehearing Denied Aug. 17, 2007.

      Steven G. Burton, Charles G. Geitner, and Robert E. Sickles of Broad & Cassel, Tampa, and J. Andrew Keyes and Juli Ann Lund of Williams & Connolly LLP, Washington, DC, for Appellant.
    David M. Caldevilla and Heather Lam-mers of de la Parte & Gilbert, P.A., Tampa, for Appellees.
   SILBERMAN, Judge.

Appellant Sonic Automotive- Inc. (Sonic) challenges the trial court’s nonfinal order granting a motion for class certification filed by Appellees Enrique Y. Galura and Marisa Hazelton (jointly referred to as the class representatives). The alleged misconduct giving rise to the class representatives’ claim relates to Sonic’s sale of a product known as “Etch” in conjunction with its sale of motor vehicles. We affirm the certification order to the extent that it grants certification pursuant to Florida Rule of Civil Procedure 1.220, subsections (a) and (b)(3). However, we reverse and remand for further proceedings as to the grant of certification under rule 1.220(b)(2) and as to the class definition.

Sonic owns auto dealerships in Florida and around the nation. The class representatives filed their first amended complaint against Sonic, alleging one claim for relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), sections 501.201-.213, Florida Statutes, (1998-2002). FDUTPA protects consumers from “unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2). The complaint alleges that Sonic, through deceptive and unfair business practices, orchestrated a scheme to “stuff’ or “pack” Etch into vehicle sales transactions without proper disclosure to customers. The complaint asserts that Etch is an essentially worthless and “unconscionably overpriced” anti-theft product consisting of an identification number that is permanently acid-etched onto a vehicle’s windows and an accompanying warranty that constitutes an insurance product. The complaint details Sonic’s practices that purportedly violate FDUTPA and demands a judgment for damages, attorney’s fees, costs, and prejudgment interest. The prayer for relief also demands declaratory and injunctive relief.

On June 3, 2005, after a hearing on the class representatives’ motion for class certification, the trial court entered an order certifying a statewide class of consumers who purchased vehicles from any of Sonic’s Florida dealerships and whose purchases included Etch. The court granted certification pursuant to subsections (a), (b)(2), and (b)(3) of rule 1.220. The certification order “certifies and defines as the Sonic Class, all customers who on or after December 30, 1998, purchased or leased from a Sonic dealership in the State of Florida a vehicle that included an APCO etch product as part of the transaction.”

Under rule 1.220(a), before a claim or defense may be maintained on behalf of a class, the trial court must first conclude as follows:

(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.

These factors are commonly referred to as numerosity, commonality, typicality, and adequacy of representation. See Rollins, Inc. v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006); Marco Island Civic Ass’n v. Mazzini 805 So.2d 928, 930 (Fla. 2d DCA 2001). If the requirements of subsection (a) are met, “a plaintiff must also satisfy one of the three subdivisions of rule 1.220(b).” Rollins, 951 So.2d at 868.

Here, the trial court determined that the proposed class satisfies the criteria of rule 1.220(b)(2) and (b)(3). Rule 1.220(b)(2) states that it applies where “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.” Rule 1.220(b)(3) states that it applies if

the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.

See also Rollins, 951 So.2d at 868 (noting same).

We review the trial court’s order certifying the class action for an abuse of discretion. See id. at 868; Marco Island, 805 So.2d at 980. The party seeking certification has the burden of proving the propriety of class action status and “[t]here must be an evidentiary basis to support an order certifying a class when the nonmov-ing party contests class certification and it is not clear from the pleadings that a lawsuit qualifies for class action status.” Rollins, 951 So.2d at 868.

The record reflects that the class representatives sufficiently established the prerequisites for certification under subsections (a) and (b)(3) of rule 1.220. Thus, we affirm certification under those subsections without discussion except to note that the facts and legal theories argued in support of certification are very similar to those asserted in Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572 (M.D.Fla.2006). There, the United States District Court for the Middle District of Florida certified a class action against Crown Auto Dealerships, Inc., based upon Crown’s sale of Etch as part of its car sales. The plaintiffs claims included a FDUTPA claim similar to the claim brought here. The plaintiff alleged that Crown

engaged in deceptive and unfair business practices in order to profit from the sale of the “Etch” product by routinely failing to make adequate disclosures concerning the sale of the product, including accurate disclosures of the amount financed, finance charges, and annual percentage rates in its standard form retail installment sales contract.

Id. at 575-76. The plaintiff further alleged that the product registration form “was misleading because it misled consumers as to the true benefit it provided, it failed to specify the premium paid for the ‘Etch’ product and it failed to name the insurer providing coverage.” Id. at 576.

As to the trial court’s certification under rule 1.220(b)(2), we reverse. Although the certification order concludes that the requirements for certification under rule 1.220(b)(2) have been met, the record does not establish that injunctive or declaratory relief is appropriate to the class as a whole. In fact, the class representatives acknowledge changes in Florida law and changes in the business practices of certain of Sonic’s dealerships that seem to obviate the need for or viability of in-junctive or declaratory relief. Further, the trial court did not make factual findings that support its conclusion that certification is proper under rule 1.220(b)(2). See Fla. R. Civ. P. 1.220(d)(1) (requiring that the court “state the findings of fact and conclusions of law upon which the determination is based.”). Our reversal is without prejudice to the trial court recerti-fying the class under rule 1.220(b)(2) should the court determine that certification is appropriate upon a proper showing by the class representatives.

We next address the class definition contained in the certification order. The trial court certified and defined the class as “all customers who on or after December 30, 1998, purchased or leased from a Sonic dealership in the State of Florida a vehicle that included an APCO etch product as part of the transaction.” Sonic argues, and the class representatives properly concede, that the certified class should not include those individuals who received a refund for their purchase of Etch. Thus, we reverse the certification order as to the class definition and remand with directions that the trial court modify the order to exclude those individuals who received a refund for their Etch purchase.

Sonic also argues that individuals who purchased Etch on or after April 23, 2002, must be excluded from the class because those individuals cannot seek relief under FDUTPA. Section 501.212(4), Florida Statutes (2002), provides that FDUTPA does not apply to “[a]ny person or activity regulated under laws administered by the Department of Insurance.” Section 634.121(1), Florida Statutes (2002), states that “[a] service agreement form or related form may not be issued or used in this state unless it has been filed with and approved by the department.”

Effective as of April 23, 2002, the legislature added subsection 634.011(8)(b), which amended the definition of the term “motor vehicle service agreement” to include agreements providing for the payment of “vehicle protection expenses.” See Ch. 02-86, § 1, at 954, Laws of Fla.; § 634.011(8)(b)(l)(a). Such expenses are those “incurred by the service agreement holder for loss or damage to a covered vehicle.” § 634.011(8)(b)(l)(a). These expenses are “payable in the event of loss or damage to the vehicle as a result of the failure of the vehicle protection product to prevent the theft of the motor vehicle or to assist in the recovery of the stolen motor vehicle.” § 634.011(8)(b)(2) (emphasis added). The term “vehicle protection product” is defined as “a product or system installed or applied to a motor vehicle or designed to prevent the theft of the motor vehicle or assist in the recovery of the stolen motor vehicle.” § 634.011(8)(b)(1)(b).

Aside from regulating the content of motor vehicle service agreements, chapter 634 addresses other activities involving such agreements. For example, it regulates the selling, advertising, and marketing of motor vehicle service agreements; it prohibits unfair methods of competition or unfair or deceptive acts or practices involving the business of such agreements; and it criminalizes misconduct in the advertising of such agreements or in charging extra for a specific ancillary coverage or product for which an applicant has not applied without that applicant’s informed consent. See §§ 634.031, .095, .2185. In addition, it defines unfair methods of competition and unfair or deceptive acts or practices involving motor vehicle service agreements and establishes a procedure for addressing such conduct, including proceedings by the Department of Insurance. See §§ 634.282, .284.

Based on these statutes, the Etch product and activities at issue here fall within the expanded definition of motor vehicle service agreements and their regulation that the legislature implemented on April 23, 2002. As a result, the remedies provided for in FDUTPA are not available to those who purchased Etch as of that date, and the class cannot include such individuals. Therefore, on remand, the trial court shall modify the class definition to exclude those individuals.

We have considered Sonic’s other arguments but conclude that, except as discussed above, the certification order is proper. Accordingly, we affirm the order as to class certification under subsections (a) and (b)(3) of rule 1.220, but we reverse the order as to certification under rule 1.220(b)(2) and the class definition. We remand for the trial court to enter an amended certification order consistent with this opinion. We further note that as the case progresses, the trial court may alter or amend the order as may be appropriate. See Fla. R. Civ. P. 1.220(d)(1).

Affirmed in part, reversed in part, and remanded.

FULMER, C.J., and LaROSE, J., Concur.

      . The order explains that "[t]he glass etch product sold by Sonic’s Florida dealerships was a product offered by Automobile Protection Corporation (‘APCO’) of Norcross Georgia.”

      . The court granted certification under Federal Rule of Civil Procedure 23, subsections (a) and (b)(3), which parallel the requirements for certification under rule 1.220, subsections (a) and (b)(3).

      . The record reflects that the Department of Insurance investigated Sonic for conduct relating to its sale of Etch and that Sonic ultimately implemented the refund program, in addition to other mitigation, pursuant to an agreement with the department.

      . Section 501.212(4) has since been amended to refer to laws administered by the Depart-men! of Financial Services instead of the Department of Insurance. See Ch. 03-261, § 565, at 1177, Laws of Fla.; Ch. 04-390, § 13, at 2201, Laws of Fla.