author: PER CURIAM.

text:
    Ex parte Oronde Kenyatt MITCHELL. (In re State of Alabama v. Oronde Kenyatt Mitchell).
    CR-05-0374.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Jeffery C. Duffey, Montgomery, for petitioner.
    Troy King, atty. gen., and John D. Gibbs, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Oronde Kenyatt Mitchell, filed a petition for a writ of prohibition/mandamus directing Judge Truman Hobbs of the Montgomery Circuit Court to dismiss the felony-murder charges against him. In June 2004, a Montgomery County grand jury indicted Mitchell for felony murder. The predicate felony named in the indictment was the unlawful distribution of a controlled substance. Mitchell moved to dismiss the felony-murder charge because, he argued, the underlying felony was not “clearly dangerous to human life.” The circuit court denied the motion; this extraordinary petition followed.

Initially, we note that the proper vehicle by which to challenge a void indictment is by way of a petition for a writ of habeas corpus. As the Alabama Supreme Court stated in Fourment v. State, 155 Ala. 109, 112, 46 So. 266, 267 (1908):

“Where one is in custody which is predicated upon an assumed and exercised judicial jurisdiction of matter or person that it is asserted did not legally exist, habeas corpus is the remedy to institute an investigation of the exist[e]nce of such jurisdiction; an inquiry very different from one involving the merely erroneous or irregular exercise of existent jurisdiction. Code 1896, § 4838; Ex parte Sam, 51 Ala. 34 [ (1824) ]; City of Selma v. Till, 42 South. 405 [ (Ala.1906) ]; Church on Habeas corpus, §§ 356, 352.”

“The Attorney General recognizes the controlling principles that habeas corpus is the appropriate remedy where the indictment charges no offense .... ” Barbee v. State, 417 So.2d 611, 612 (Ala.Crim.App. 1982). “The writ [of habeas corpus] is against void but not irregular or voidable judgments.” Hable v. State, 41 Ala.App. 398, 399, 132 So.2d 271, 272 (1961). See also Greer v. State, 49 Ala.App. 36, 268 So.2d 502 (1972); Parham v. State, 285 Ala. 334, 231 So.2d 899 (1970); Nations v. State, 41 Ala.App. 581, 141 So.2d 537 (1962); State v. Baker, 268 Ala. 410, 108 So.2d 361 (1959).

Because Mitchell’s argument, if meritorious, would render the indictment void, the proper method by which to challenge his claim is a petition for a writ of habeas corpus. “This Court has stated that it is ‘committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.’” Ex parte Deramus, 882 So.2d 875, 876 (Ala.2002). Accordingly, we treat this extraordinary petition as a petition for a writ of habeas corpus. See Ex parte Frost, 848 So.2d 1021 (Ala.Crim.App.2002) (court treated petition for a writ of mandamus as petition for a writ of habeas corpus).

Felony murder is defined in § 13A-6-2, Ala.Code 1975:

“(a) A person commits the crime of murder if:
“(3) He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, or any other felony dearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.”

(Emphasis added.)

Mitchell argues that Count I of the two-count indictment fails to charge a crime and is void; therefore, he argues, the circuit court has no jurisdiction to proceed on the charges. Specifically, he argues that the predicate felony named in the indictment — the unlawful distribution of a controlled substance — is not a felony recognized under § 13A-6-2(a)(3), Ala. Code 1975, because it is not “clearly dangerous to human life.” Count I of the indictment charged:

“The Grand Jury of said County charge that, before the finding of this indictment, Oronde Kenyatt Mitchell, whose name is otherwise unknown to the Grand Jury, did commit or attempt to commit a felony clearly dangerous to human life, to-wit: unlawful distribution of a controlled substance, to wit: marijuana, and, in the course of and in furtherance of the said felony that the said Mitchell was committing or attempting to commit, or in immediate flight therefrom, the said Mitchell or another participant, to-wit: Jaquin Deaudrey Jones, whose name is otherwise unknown to the Grand Jury, caused the death of another person, to-wit: Cedric Tolbert, whose name is otherwise unknown to the Grand Jury, by shooting the said Tol-bert with a pistol, in violation of Section 13A-6-2 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

Mitchell also argues that other states have held that only offenses that are “inherently dangerous” can constitute the predicate felony for felony murder. He cites Minnesota v. Anderson, 666 N.W.2d 696 (Minn.2003); Kansas v. Wesson, 247 Kan. 639, 802 P.2d 574 (1990); People v. Taylor, 6 Cal.App.4th 1084, 8 Cal.Rptr.2d 439 (1992), in support of his assertion. In essence, Mitchell argues that we should follow the abstract approach used by Minnesota, Kansas, and California when determining whether the unlawful distribution of a controlled substance is a felony that is “clearly dangerous to human life.”

The State asserts that distributing controlled substances is a felony that is clearly dangerous to human life. Alternatively, it asserts that whether the charge of distributing controlled substances meets the statutory definition of “clearly dangerous to human life” should be decided on a case-by-case basis based on the facts in each case.

The issue presented in this petition is an issue of first impression in Alabama. Because there is no Alabama law on this issue, we have looked to other states for guidance.

In State v. Mora, 124 N.M. 346, 950 P.2d 789 (1997), the New Mexico Supreme Court, considering whether criminal sexual contact of a minor could support a felony-murder charge, stated:

“In [State v.] Harrison, [90 N.M. 439, 564 P.2d 1321 (1977) ], this Court considered two approaches in determining whether a felony is inherently dangerous for felony murder purposes. Id. Under the first approach, ‘the felony is examined in the abstract to determine whether it is inherently dangerous to human life.’ Id. See, e.g., People v. Lee, 234 Cal.App.3d 1214, 286 Cal.Rptr. 117, 122 (1991); State v. Wesson, 247 Kan. 639, 802 P.2d 574, 579 (1990) superseded by statute as stated in State v. Mitchell, 262 Kan. 687, 942 P.2d 1, 5 (1997). This ‘abstract approach’ analyzes the elements of the underlying felony without regard to the particular facts of the case. Lee, 286 Cal.Rptr. at 122. The abstract approach involves a two-step process by which the court first examines the ‘primary element’ of the offense at issue to determine whether it involves the requisite danger to life. Id. The court then looks to the ‘factors elevating the offense to a felony’ to determine whether the felony, taken in the abstract, is inherently dangerous to human life. Id. Thus, under the abstract approach, the court decides as a matter of law whether a particular felony is inherently dangerous to human life.
“Under the second possible approach cited by Harrison, ‘both the nature of the felony and the circumstances surrounding its commission may be considered to determine whether it was inherently dangerous to human life.’ 90 N.M. at 442, 564 P.2d at 1324. Some courts have used this factual approach to determine inherent danger for purposes of felony murder. See, e.g., State v. Noren, 125 Wis.2d 204, 371 N.W.2d 381, 385 (Wis.App.1985); State v. Stewart, 663 A.2d 912, 919-920 (R.I.1995). When applying the factual approach, a court looks to the particular facts of the ease to decide whether the defendant carried out the predicate felony in a manner dangerous to human life. Thus, a proscribed offense which on its face does not appear to be a dangerous felony, may be carried out in a manner which would allow it to serve as a predicate felony for felony murder. Noren, 371 N.W.2d at 385.
“In Harrison, this Court adopted the factual approach. 90 N.M. at 442, 564 P.2d at 1324. We see no reason to deviate from that ruling today. We cannot say as a matter of law whether a particular felony is or is not inherently dangerous to human life. This decision is necessarily fact-specific. We cannot say as a matter of law that criminal sexual contact of a minor is never an inherently dangerous felony. As stated in Harrison, it is for the jury to decide, subject to appellate review, whether a felony is inherently dangerous. Id. In this case, it was for the jury to decide whether the facts of the case warranted a conclusion that the criminal sexual contact of a minor was committed under inherently dangerous circumstances.”

124 N.M. at 353-54, 950 P.2d at 796-97.

The Rhode Island Supreme Court in State v. Stewart, 663 A.2d 912, 916 (R.I. 1995), considered whether “permitting a child to be a habitual sufferer” was an “inherently dangerous felony” sufficient to support a charge of felony murder in the second degree. The Rhode Island Supreme Court stated:

“In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony ‘in the abstract’ rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal. Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Cal.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319, 323-25 (1984); People v. Caffero, 207 Cal.App.3d 678, 683-84, 255 Cal.Rptr. 22, 25 (1989). Moreover, the California Supreme Court has defined an act as ‘inherently dangerous to human life when there is “a high probability that it will result in death.” ’ Patterson, 49 Cal.3d at 627, 262 Cal.Rptr. at 204, 778 P.2d at 558.
“In Caffero, supra, a two-and-one-half-week-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California’s felony-child-abuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. Caffero, 207 Cal. App.3d at 683, 255 Cal.Rptr. at 25. By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. Id. (the statute applied to all minors below the age of eighteen years, not only to young children. People v. Lee, 234 Cal.App.3d 1214, 1228, 286 Cal. Rptr. 117, 126 (1991)). Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. Caffero, 207 Cal.App.3d at 682-83, 255 Cal. Rptr. at 24-25; see also Lee, 234 Cal. App.3d at 1229, 286 Cal.Rptr. at 126.
“The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. See, e.g., State v. Wesson, 247 Kan. 639, 647, 802 P.2d 574, 581 (1990) (holding that the sale of crack cocaine when viewed in the abstract is not inherently dangerous to human life); State v. Underwood, 228 Kan. 294, 303, 615 P.2d 153, 161 (1980) (holding that the unlawful possession of a firearm by an ex-felon when viewed in the abstract is not inherently dangerous to human life). The case of Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), cited in defendant’s brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony “create[d] a foreseeable risk of death.’ In Ford the defendant (Ford) had previously been convicted of the felony of possession of cocaine with intent to distribute. Ford was visiting the home of his girlfriend’s mother and had brought with him a semiautomatic pistol. While there he attempted to unload the pistol, but in so doing, he discharged the weapon, sending a bullet both through the floor and through the ceiling of a basement apartment located in the house. The bullet struck and killed the occupant of the basement apartment. There was no evidence that at the time of the shooting the defendant was aware of the existence of the apartment or of the victim’s presence in it. Ford was charged with and convicted of felony murder, with the underlying felony being the possession of a firearm by a convicted felon.
“The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. Id. at 603-04, 423 S.E.2d at 256.
“We decline defendant’s invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. See, e.g., Jenkins v. State, 230 A.2d 262 (Del.1967); State v. Wallace, 333 A.2d 72 (Me.1975); Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698 (1990); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); State v. Nunn, 297 N.W.2d 752 (Minn.1980).
“A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller, [52 R.I. 440, 161 A. 222 (1932) ], this court upheld the defendant’s conviction of second-degree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a second-degree felony-murder conviction. People v. Lopez, 6 Cal.3d 45, 51, 489 P.2d 1372, 1376, 98 Cal.Rptr. 44, 48 (1971) (In Bank).”

663 A.2d at 918-19. See also Smith v. State, 596 N.W.2d 661, 664 (Minn.Ct.App. 1999) (“[W]e conclude the postconviction court misinterpreted the statute and abused its discretion by concluding a sale of cocaine that results in a shooting death was an invalid predicate felony for second-degree felony murder.”); Malaske v. State, 89 P.3d 1116, 1117 n. 2 (Okla.Crim.App. 2004); (“[T]he act of ... trafficking in illegal drugs may serve as [a] predicate crime[] for first-degree felony murder.”); Jenkins v. State, 230 A.2d 262, 269 (Del. 1967) (‘Whether the commission of a particular felony in a given instance was fore-seeably dangerous is for the court and jury to decide.”); State v. Wallace, 333 A.2d 72, 81 (Me.1975) (“To summarize, the felony-murder rule in Maine requires in addition to a causal relationship between the felony being committed, or attempted, and the death, proof beyond a reasonable doubt that the manner or method of its commission, or attempted commission, presents a serious threat to human life or is likely to cause serious bodily harm.”).

Our research revealed little law to support Mitchell’s argument that Alabama should use an abstract approach in determining whether the crime of unlawful distribution of a controlled substance is “clearly dangerous to human life.” Though states define the predicate offense to felony murder differently — “an act greatly dangerous to the lives of others,” or “an inherently dangerous felony” — they appear to be in agreement in their approach to analyzing whether the offense fits within the felony-murder law.

Mitchell cites State v. Anderson, 666 N.W.2d 696, 701 (Minn.2003), for the proposition that the Minnesota Supreme Court has held that, viewed in the abstract, the offense of “a felon in possession of a firearm” can never be a predicate felony for felony murder. However, the Minnesota Supreme Court also noted that Minnesota law “requires consideration of the elements of the underlying felony in the abstract and the circumstances under which the felony was committed.” 666 N.W.2d at 700-01 (footnote omitted).

Mitchell also relies on the case of State v. Wesson, 247 Kan. 639, 802 P.2d 574 (1990). In Wesson, the Kansas Supreme Court held that the sale of cocaine could never be a predicate felony for felony murder in Kansas. However, the Kansas Supreme Court in State v. Mitchell, 262 Kan. 687, 942 P.2d 1 (1997), stated the following concerning posUWesson Kansas law:

“The legislative overhaul of the felony-murder statute in 1992 requires us to reexamine the reasoning applied in Wesson and the ‘abstract approach’ announced in State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153 (1980). If the felony sale of cocaine is viewed in the abstract, as it was in Wesson, then it does not fit within the catchall definition of a forcible felony. The elements of that crime do not involve any threat or use of physical force or violence against any person, although threat, force, or violence may frequently be involved in cocaine sales on the street. Courts no longer have the task of determining whether a crime is inherently dangerous. K.S.A. 21-3436 addressed our concern, expressed in [State v.] Lashley, 233 Kan. [620] at 631, 664 P.2d 1358 [ (1983) ], that overextension of the felony-murder doctrine had to be guarded against. Either the crime fits within one of the K.S.A. 21-3436 categories or it does not. Comparison of the crime to those listed in K.S.A. 21-3110(8) (definition of forcible felony), or to the catchall portion of the definition, is no longer required. In determining whether sale of cocaine is a forcible felony, we find consideration of the circumstances of the commission of the crime, in addition to the elements of the crime in the abstract, appropriate because the legislature has determined a cocaine sale to be inherently dangerous.
“The significant changes to the felony-murder statute after Wesson, with the legislature having expressly defined sale of cocaine as an inherently dangerous felony, justify reconsideration of our reasoning in Wesson. The abstract approach, first taken in Underwood, is not controlling in the determination of whether a felony is forcible because the legislature has now statutorily defined inherently dangerous felonies.”

262 Kan. at 695-96, 942 P.2d at 6.

Mitchell also cites People v. Taylor, 6 Cal.App.4th 1084, 8 Cal.Rptr.2d 439 (1992). The California Court of Appeals in Taylor held that, viewed in the abstract, the sale of phencyclidine (“PCP”) could never be a predicate felony for felony murder. The holding in Taylor is still followed in California. See People v. Clem, 78 Cal.App.4th 346, 92 Cal.Rptr.2d 727 (2000).

We believe that the fact-based approach is the more logical approach and is consistent with the evolution of the offense of felony murder in Alabama. Alabama originally separated murder into degrees. First-degree murder was defined in § 13-1-70, Ala.Code 1975 (replaced by § 13A-5-40). Section 13-1-70, Ala.Code 1975, provided, in part:

“Every homicide perpetrated by poison, lying in wait or any other kind of wilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary ... is murder in the first degree...."

In 1977, the Alabama criminal code was totally rewritten. Murder was no longer separated into degrees, and felony murder was defined in § 13A-6-2(a)(3), Ala.Code 1975. The legislature also increased the number of felonies that could serve as the basis for felony murder and added the additional proviso to § 13A-6-2(a)(3): “or any other felony clearly dangerous to human life .... ”

Based on the evolution of felony murder in Alabama and the overwhelming consensus that a fact-based approach should be used to determine whether an offense can furnish the predicate felony for felony murder, we join the majority of jurisdictions that have considered this issue. We agree with the Rhode Island Supreme Court: “[T]he better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed ....” State v. Stewart, 663 A.2d at 919.

Accordingly, the indictment issued by the Montgomery County grand jury is not void. This petition is due to be, and is hereby, denied.

PETITION DENIED.

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

      . The Montgomery County district attorney’s office recused itself from the case. The case is being prosecuted by the attorney general.

      . In this case it appears that Mitchell and the victim, Cedric Tolbert, were in a vehicle attempting to sell marijuana to Jaquin Deau-drey Jones when Jones attempted to rob Mitchell and Tolbert with a gun.

      . New Mexico defines felony murder in N.M. Stat. Ann. § 30-2-l.A (Michie 1978), to include a murder committed "in the commission of or an attempt to commit any felony; or ... by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.”

      . The state of Rhode Island defines murder in degrees. Murder in the first degree is defined as a murder committed during the course of specific enumerated felonies. One of the felonies enumerated in R.I. Gen. Laws § 11-23-1 (1956), is the felony manufacture, sale, or delivery of a controlled substance. If the felony is not enumerated in R.I. Gen. Laws § 11-23-1 (1956), then the murder is murder in the second degree. To serve as the predicate felony for murder in the second degree the felony must be an "inherently dangerous felony.”

      . "The criminal code repealed Section 13 — 1— 70 of the 1975 Alabama Code defining the degrees of murder. Under the criminal code the degrees of murder are abolished and homicide is divided into murder, manslaughter and criminally negligent homicide. Sections 13A-6-2, -3, -4. However, the capital offense defined in Section 13-5-31(a)(7) [repealed and replaced by § 13A-5-40(a)(7) ] retains the crime of murder in the first degree as a component of that capital offense despite the fact that there is no crime of murder in the first degree defined by the criminal code.” Williams v. State, 461 So.2d 834, 838 (Ala. Crim.App.1983), rev'd on other grounds, 461 So.2d 852 (Ala.), on remand, 461 So.2d 855 (Ala.Crim.App. 1984).


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Gregory Valdez PHILLIPS v. STATE of Alabama.
    CR-04-2589.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.

      Jennifer Paige Clark, Mobile, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On January 7, 2003, the appellant, Gregory Valdez Phillips, pled guilty to first-degree sexual abuse. The trial court sentenced him to serve a term of ten years in prison, but split his sentence and ordered him to serve five months followed by five years on supervised probation. On August 3, 2005, the appellant’s probation officer filed an “Officer’s Report on Delinquent Probationer.” .After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The appellant argues that the circuit judge did not have jurisdiction to revoke his probation. Specifically, he contends that the circuit judge who revoked his probation was not the sentencing judge in his case and that Rule 27.6(a), Ala. R.Crim. P., requires that the revocation hearing be conducted by the sentencing judge. The record indicates that the judge who conducted the appellant’s revocation hearing was not the same judge who sentenced him. However, it also indicates that the appellant was convicted and sentenced in the Mobile Circuit Court; that his revocation hearing was conducted in the Mobile Circuit Court; and that the judge who conducted the revocation hearing was a Mobile Circuit Court Judge.

Rule 27.5(a), Ala. R.Crim. P., provides, in pertinent part:

“When a probationer is arrested pursuant to Rule 27.4(b) or Rule 27.4(c), the probation officer shall be notified immediately (unless the officer made the arrest), and the probationer shall be taken without unnecessary delay before the judge who issued the warrant or summons, if available, or, in the case of an arrest without a warrant, before the original sentencing judge, if available; otherwise, the probationer shall be taken before another judge of the same district or circuit....”

(Emphasis added.) However, that rule governs only the initial appearance during the revocation proceedings. Rule 27.6(a), Ala. R.Crim. P., which governs the actual revocation hearing, provides, in pertinent part:

“A hearing to determine whether probation should be revoked shall be held before the sentencing court within a reasonable time after the probationer’s initial appearance.... ”

(Emphasis added.)

“ ‘[W]ords used in court rules must be given their plain meaning.’ Nieto v. State, 842 So.2d 748, 749 (Ala.Crim.App. 2002). In construing a rule promulgated by [the Alabama Supreme] Court, effect must be given to ‘each word, phrase, and clause.’ State v. Old West Bonding Co., 203 Ariz. 468, 471, 56 P.3d 42, 45 (Ct. App.2002).”

Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala.2004).

Although Rule 27.5(a), Ala. R.Crim. P., includes specific provisions governing which judge shall preside over the initial appearance, Rule 27.6(a), Ala. R.Crim. P., does not. Rather, it simply provides that the revocation hearing shall be held before the sentencing court. In Rule 27.6, Ala. R.Crim. P., the Alabama Supreme Court used the term “sentencing court” as opposed to the term “original sentencing judge,” which it used in Rule 27.5(a), Ala. R.Crim. P., and we assume that the supreme court had its reasons for choosing that term. Cf. Ex parte Sandifer, 925 So.2d 290, 294 (Ala.Crim.App.2005) (holding that a presiding circuit court judge’s order appointing another circuit court judge as the presiding judge over all petitions for reconsideration of sentence pursuant to § 13A-5-9.1, Ala.Code 1975, conflicted with the language in § 13A-5-9.1, Ala.Code 1975, because “[t]he legislature chose to use the term ‘presiding judge’ instead of ‘judge presiding over the case’ or ‘sentencing judge’s successor in office’; we assume that the legislature had its reasons for doing so”).

In this case, the appellant was convicted and sentenced in the Mobile Circuit Court, his revocation hearing was conducted in the Mobile Circuit Court, and the circuit judge who conducted the hearing was a Mobile Circuit Court Judge. Therefore, the appellant’s revocation hearing was held before the sentencing court, and the circuit judge had jurisdiction to revoke the appellant’s probation. Accordingly, we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, PM., and COBB and WISE, JJ., concur; SHAW, J., concurs in the result.

      . In his reply brief, the appellant asserts that "§ 15-8-171 defines the term 'Court' as applied to Criminal Procedure’s sentencing and punishment, as, 'The trial judge exercising sentencing jurisdiction over an eligible offender under this article and includes the any successor of the trial judge.' ” (Appellant’s reply brief at p. 4.) However, § 15-18-171 does not provide the definition for the term "court” as it is used in the Alabama Rules of Criminal Procedure. Rather, it provides the definition for the term "court” as it is used in the Alabama Community Punishment and Corrections Act of 1991. Because the appellant was not sentenced pursuant to the Alabama Community Punishment and Corrections Act of 1991, that definition of the term "court” does not apply to this case.


author: SHAW, Judge. BASCHAB, Judge,

text:
    Amy J. HATCHER v. STATE of Alabama.
    CR-04-1728.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    M. Hampton Baxley, Dothan, for appellant.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB and WISE, JJ„ concur. BASCHAB, J., dissents, with opinion.

BASCHAB, Judge,

dissenting.

In this case, the indictment against the appellant alleged that she

“did commit the crime of Unlawful Manufacture of a Controlled Substance in the second degree by, To-Wit: possessing precursor substances as determined in section 20-2-181 of the Code of Alabama 1975, in any amount with the intent to unlawfully manufacture a controlled substance, To-Wit: Methamphetamine, in violation of, Section 13A-12-217, of the Code o[f] Alabama, Against the Peace and dignity of the State of Alabama.”

(C.R. 17.)

“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.”

§ 13A-12-217(a), Ala.Code 1975. Section 20-2-181, Ala.Code 1975, provides:

“(a) The Board of Pharmacy shall, within one year of July 29, 1991, designate by rule listed precursor chemicals.
“(b) The Board of Pharmacy may subsequently by rule add chemicals as listed precursor chemicals following the criteria set forth in subdivision (2) of Section 20-2-180, and may also by rule delete any substance previously named as a listed precursor chemical. In no event shall a chemical also be designated as a listed precursor chemical if it has been determined to be a controlled substance or an immediate precursor chemical pursuant to the Alabama Uniform Controlled Substances Act, Section 20-2-1 et seq.
“(c) If any chemical is designated or deleted as a listed precursor chemical under federal law and notice thereof is given to the Board of Pharmacy, the board shall similarly list or delete the substance under this article after the expiration of 30 days from publication in the federal register of a final rule or order designating or deleting such substance as a listed precursor chemical, unless, within 30 days from publication in the federal register of the final rule or order, the board objects to the designation or deletion. In that case, the board shall publish the reasons for objection in the Alabama Administrative Monthly and shall afford all interested parties an opportunity to submit written comments and to be heard. At the conclusion of the hearing and the comment period, the State Board of Pharmacy shall publish its decision, which shall be final unless altered by statute. Upon publication of an objection to the designation or deletion by the board, the designation or deletion is stayed until the board publishes its decision. Notwithstanding the provisions of the Alabama Administrative Procedure Act, Sections 41-22-1 through 41-22-27, no further rulemak-ing or administrative proceedings shall be required of the board with respect to the designation or deletion of substances similarly designated or deleted under federal law.
“(d) Until the Board of Pharmacy adopts a rule designating listed precursor chemicals, as required by subsection (a), the following chemicals or substances are hereby deemed listed precursor chemicals:
“(1) Acetic anhydride;
“(2) Anthranilic acid and its salts;
“(3) Benzyl cyanide;
“(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;
“(5) Ergonovine and its salts;
“(6) Ergotamine and its salts;
“(7) Hydriodic acid;
“(8) Isosafrol;
“(9) Methylamine;
“(10) N-Acetylanthranilic acid and its salts;
“(11) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(12) Phenylacetic acid and its salts;
“(13) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;
“(14) Piperidine and its salts;
“(15) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;
“(16) Safrole; and
“(17) 3, 4-Methylenedioxyphenyl-2-propanone.”

Section 20-2-180(2), Ala.Code 1975, defines a “listed precursor chemical” as “[a] chemical substance specifically designated as such by the Alabama State Board of Pharmacy, that, in addition to legitimate uses, is used in the unlawful manufacture of a controlled substance or controlled substances.”

“ ‘An indictment or information in a prosecution involving narcotics or dangerous drugs must be sufficiently definite with respect to the particular substance involved to enable accused to know with what he is charged.’ 28 C.J.S. Supp. Drugs & Narcotics § 185 (1974).”

McCall v. State, 487 So.2d 1375, 1377 (Ala. Crim.App.1986). See also Vann v. State, 44 Ala.App. 664, 665, 219 So.2d 649, 650 (1969) (holding that an indictment for possessing depressant and stimulant drugs was “insufficient for failure to name the particular drug possessed by the defendant”).

“An indictment must allege all the elements of the offense charged, and must also sufficiently apprise the accused of what he must be prepared to defend. Fields v. State, 494 So.2d 477, 479 (Ala.Cr.App.1986); Hardy v. State, 409 So.2d 996, 1001 (Ala.Cr.App.1982). Indictment forms for most criminal offenses are set out in § 15-8-150, Code of Alabama 1975; however, no indictment form for child abuse is contained in this section.
“ ‘If there is no indictment form for an offense set out in Code § 15-8-150, then an indictment which closely parallels the language of the statute ere-ating the offense is generally valid. Worrell v. State, Ala. Cr.App., 357 So.2d 373, cert. denied, Ala., 357 So.2d 378 (1978); Manson v. State, Ala. Cr. App., 349 So.2d 67, cert. denied, Ala., 349 So.2d 86 (1977); Code § 15-8-23.
‘“Pursuant to Code § 15-8-25, an indictment must state the facts constituting the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is intended. An indictment must likewise apprise the accused not only of the nature of the offense, but also of the particular act or means by which it was committed. Chambers v. State, Ala. Cr.App., 364 So.2d 416, cert. denied, Ala., 364 So.2d 420 (1978). See also: Andrews v. State, Ala. Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977).’
“Harrison v. State, 384 So.2d 641, 643 (Ala.Cr.App.1980).” .

Hewlett v. State, 520 So.2d 200, 204 (Ala. Crim.App.1987) (emphasis added).

Section 15-8-150, Ala.Code 1975, does not include an indictment form for second-degree unlawful manufacture of a controlled substance. Therefore, we must determine whether the indictment in this case apprised the appellant of the particular act or means by which she committed the offense of second-degree unlawful manufacture of a controlled substance. The indictment alleged that the appellant possessed “precursor substances as determined in section 20-2-181 of the Code of Alabama 1975, with the intent to unlawfully manufacture a controlled substance, To-Wit: Methamphetamine.” (C.R. 17.) However, it does not name the precursor substance or substances she was charged with possessing.

The majority asserts that the indictment tracks the language of § 13A-12-217, Ala. Code 1975; that § 13A-12-217, Ala.Code 1975, prescribes with definiteness the elements of the offense; that the appellant could have moved for a more definite statement; that any defect in the indictment would, at most, render it voidable; and that, because any defect would not render the indictment void, it did not implicate the jurisdiction of the trial court.

I agree that, in certain instances, an indictment that substantially follows the language of the statute violated is sufficient even if it incorporates words and phrases that are defined in other statutes without further clarification of those incorporated words or phrases. In those instances, the words or phrases are defined in statutes that provide specific, finite definitions for the incorporated terms. See, e.g., §§ 13A-6-61 through 13A-6-67, Ala. Code 1975 (incorporating terms that are defined in § 13A-6-60, Ala.Code 1975); §§ 13A-8-3 through 13A-8-5, Ala.Code 1975 (incorporating the definition of theft set forth in § 13A-8-2, Ala.Code 1975); §§ 13A-8-41 and 13A-8-42, Ala.Code 1975 (incorporating the definition of third-degree robbery in § 13A-8-43, Ala.Code 1975).

Section 20-2-181, Ala.Code 1975, does not provide a finite definition for the term “precursor substances.” Rather, it provides that the Alabama State Board of Pharmacy (“the Board”) is responsible for developing a list of precursor substances; sets forth criteria for the Board to use in determining whether to add or delete chemicals from the list of precursor substances; provides a procedure for the Board to follow in the event federal law designates or deletes a listed precursor chemical; and sets forth an initial list of precursor substances. Because the term “precursor substances” has an evolving definition and because that complete definition is not necessarily included in § 20-2-181, Ala.Code 1975, the mere use of the term “precursor substances” and a reference to § 20-2-181, Ala.Code 1975, in an indictment do not adequately put a defendant on notice of which prohibited items he or she is charged with possessing. Rather, the name or names of the specific precursor substance(s) involved would be an essential element that must be alleged in the indictment.

Because the indictment in this case did not allege the specific precursor substance(s) the appellant was charged with possessing, it did not allege all of the essential elements of the offense of second-degree unlawful manufacture of a controlled substance. Therefore, the indictment against the appellant and the resulting conviction are void.

Moreover, the events that took place during the appellant’s trial emphasize the dangers present when a defendant proceeds to trial on an indictment that does not adequately set forth the elements of the offense. In this case, Investigator Annie Henderson of the Geneva County Sheriffs Department testified that, during the search of the appellant’s vehicle, she found numerous items containing methamphetamine; “a coffee filter that contained a white powder and I believe that came back to pseudoephedrine”; and a receipt for the purchase of pseudoephedrine. (R. 36.) However, she subsequently testified that she submitted a coffee filter to the Alabama Department of Forensic Sciences (“ADFS”) and that the forensic analysis indicated that the coffee filter contained .26 grams of methamphetamine.

The two certificates of analysis that were admitted into evidence indicate that “a coffee filter holding off-white powder” was submitted to the ADFS; that that powder was .26 grams of methamphetamine; and that the remaining substances that were analyzed contained methamphetamine. The certificates of analysis do not indicate that any substance was found to contain pseudoephedrine.

Investigator Tony Helms of the Geneva County Sheriffs Department testified that he was the Commander of the Geneva County Drug Task Force; that he searched the appellant’s vehicle; that, in a blue container, he found tincture of iodine, acetone, Pyrex dishes, and a bag that contained trash items such as used coffee filters; a plastic bag that contained a coffee filter with iodine stains; rubber gloves; a stirring stick; a paper towel with iodine stains; a toolbox that had the name “Rodney” on it and that contained a propane torch; a turkey baster; and a cigarette case that had a receipt for the purchase of acetone. He also testified as to the significance of each of those items with regard to the manufacture of methamphetamine and that he determined that the items he found constituted a mobile lab scene. Subsequently, the following occurred:

“[PROSECUTOR]: The chemicals you listed, are those what we call precursor chemicals?
“[HELMS]: Yes.
“[PROSECUTOR]: Is that what we refer to as chemicals used to prepare meth?
“[HELMS]: Yes.
“[PROSECUTOR]: Precursor chemicals?
“[HELMS]: Yes, sir.”
(R. 68.)

Finally, during its oral charge, the trial court instructed the jury as follows:

“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: Possess precursor substances as determined in Section 20-2-181, in any amount with the intent to unlawfully manufacture a controlled substance.
“In this case, the State must prove as to the unlawful manufacturing of a controlled substance in the 2nd degree the following: The State must prove that the Defendant possessed precursor substances, in any amount, and that she possessed them with the intent to unlawfully manufacture a controlled substance. So, it would be for you to determine from the evidence whether or not the Defendant possessed some precursor chemicals, precursor substances, and that she possessed them with the intent to unlawfully manufacture a controlled substance.”

(R. 85.) However, the trial court did not instruct the jury as to what substances would constitute precursor substances. Rather, the jury was presented with only Helms’ testimony that the chemicals he found in the appellant’s vehicle were precursor chemicals. Further, the State did not establish that any of the items that were found in the appellant’s vehicle would constitute a precursor substance pursuant to the list set forth in § 20-2-181, Ala. Code 1975, or any subsequent lists promulgated by the Board. Although Henderson testified that she believed that the substance in the coffee filter came back to be pseudoephedrine, forensic testing indicated that the white powder that was in the coffee filter was actually methamphetamine.

The nature of the statute describing precursor substances and the events that occurred during the appellant’s trial emphasize the necessity of actually naming the specific precursor substance or substances a defendant is charged with possessing. They also emphasize the fact that the indictment in this case did not adequately apprise the appellant of the particular act or means by which she committed the offense of second-degree unlawful manufacture of a controlled substance.

Because the indictment against the appellant and the resulting conviction were void, I must respectfully dissent.


text:
    Sidney Tyrone RATLIFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1291.
    District Court of Appeal of Florida, First District.
    July 6, 2006.
    Rehearing Denied Sept. 6, 2006.
    Sidney Tyrone Ratliff, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. Baker v. State, 878 So.2d 1236 (Fla.2004).

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


author: HAWKES, J.

text:
    Michael PAULSON, Appellant, v. DIXIE COUNTY EMERGENCY MEDICAL SERVICES and Florida League of Cities, Inc., Appellees.
    No. 1D05-2337.
    District Court of Appeal of Florida, First District.
    July 26, 2006.
    Rehearing Denied Sept. 1, 2006.
    Victor J. Musleh, Jr., Ocala, and Bill McCabe, Longwood, for Appellant.
    Lamar D. Oxford and Alan D. Kalinoski of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
   HAWKES, J.

Claimant appeals the dismissal of his petition for benefits. The Judge of Compensation Claims (JCC) found Claimant provided false, fraudulent, incomplete or misleading statements to obtain workers’ compensation benefits in a workers’ compensation case unconnected to his instant workers’ compensation case, and concluded Claimant was barred from receiving benefits. We reverse.

Claimant, a paramedic, obtained benefits for three work-related accidents in three years. In February 1999, he claimed injury to his head, neck and back when the ambulance in which he was a passenger hit a semi-truck. In April 2000, he claimed injury to his left wrist and arm while picking up a respiratory bag when responding to an emergency. In June 2001, he claimed injury to his head, shoulder and the left side of his back when the chair in which he was sitting suddenly broke. The third accident is at issue here.

The employer and carrier (E/C) provided benefits for the claims in the first two accidents. The E/C never defended either of those claims on grounds that Claimant committed any of the acts prohibited in section 440.105(4)(b), Florida Statutes. However, the E/C denied the third accident actually occurred and, consequently, argued Claimant did not suffer any injury within the course and scope of employment. See § 440.09(1), Florida Statutes.

Following an evidentiary hearing, the JCC concluded Claimant did suffer a workplace accident, which resulted in the claimed injury. However, the JCC denied the claim, finding Claimant made false, fraudulent, incomplete or misleading statements as defined in section 440.105(4)(b), to obtain workers’ compensation benefits for the second workplace accident. Specifically, the JCC found Claimant misrepresented his physical capabilities while he was receiving temporary total disability benefits. Although competent, substantial evidence supports the JCC’s conclusion that Claimant committed one of the prohibited acts of section 440.105(4)(b) in a different workers’ compensation claim, the JCC erred in applying the exclusion of 440.09(4) to the instant workers’ compensation claim.

This court has interpreted section 440.105(4)(b) to include false, fraudulent, incomplete or misleading statements that are immaterial to the claim if the statements were made for the purpose of obtaining benefits. See Village of N. Palm Beach v. McKale, 911 So.2d 1282 (Fla. 1st DCA 2005). However, we have never applied the section 440.09(4) exclusion from coverage to a claim for workers’ compensation benefits in a different workers’ compensation case than the case in which the 440.105(4)(b) acts were committed. Each case excluding coverage pursuant to section 440.09(4) involved the same case in which the false, fraudulent, incomplete or misleading statements were made, and that claim was currently before the JCC. See id.; Citrus Pest Control & Claims Control, Inc. v. Brown, 913 So.2d 754 (Fla. 1st DCA 2005); Nelson v. Labor Finders, 897 So.2d 501 (Fla. 1st DCA 2005).

This result is mandated by the plain language of section 440.09, which defines when coverage is available. Section 440.09(1), Florida Statutes, in part, mandates coverage when an employee suffers “an accidental injury or death arising out of work performed in the course and the scope of employment.” This provision applies to a specific accident. Pursuant to the statute, coverage may be limited or denied even when the requirements of subsection (1) have been met, if any of the exclusions or limitations of coverage found in subsections (2) through (8) apply.

Section 440.09(4), at issue here, excludes coverage if the employee engaged in any of the acts described in section 440.105(4)(b). Logically, and from the statutory language, there is no indication that the Legislature intended the subsection (4) exelusion to apply to injuries unconnected with the acts proscribed in section 440.105. To require coverage be forever barred simply because the employee had, at one time, committed one of the 440.105 proscribed acts would be unduly harsh.

Consequently, to be barred from receiving workers’ compensation benefits based on section 440.09(4), any false, fraudulent, incomplete or misleading statements must have been made in the case for which workers’ compensation benefits are currently being sought. Thus, the bar to receiving workers’ compensation benefits based on false, fraudulent, misleading or incomplete statements is claim specific. That is, the statements must be made to obtain workers’ compensation benefits in the claim at issue before the JCC.

Here, the sole basis for dismissing Claimant’s 2001 workers’ compensation claim was the JCC’s finding of misrepresentation connected to the 2000 workers’ compensation claim. Because the JCC’s ruling is not supported by statute, the order dismissing Claimant’s petition for benefits is REVERSED and REMANDED.

ALLEN and LEWIS, JJ., concur.

      . It is interesting to note that Claimant filed approximately 22 claims in 31 years, through either workers' compensation or personal insurance. The claims related to alleged injuries to his knees, back, head, neck, wrist, chest, and sprains of multiple body parts.