text:
    Ex parte CSX TRANSPORTATION, INC. (In re Shamalita Franklin et al. v. City of Athens and CSX Transportation, Inc.) Ex parte City of Athens. (In re Shamalita Franklin et al. v. City of Athens and CSX Transportation, Inc.)
    1041971 and 1050016.
    Supreme Court of Alabama.
    March 10, 2006.

      Morris Wade Richardson and Elizabeth Redding Floyd of Adams & Reese LLP/ Lange Simpson, Birmingham, for petitioner CSX Transportation, Inc.
    Benjamin R. Rice of Spurrier, Rice & Hall, Huntsville, for petitioner City of Athens.
    William D. Davis III of Davis & Associates, P.C., Huntsville, for respondent.
    Kenneth Smith, league counsel, Montgomery, for amicus curiae Alabama League of Municipalities, in support of the City of Athens.
    George W. Royer, Jr., and Scott W. Faulkner of Lanier Ford Shaver & Payne, P.C., Huntsville, for amicus curiae City of Huntsville, in support of the City of Athens.
    Craig S. Dillard and Bart Harmon of Webb & Eley, P.C., Montgomery, for ami-cus curiae Association of County Commissions of Alabama, in support of the City of Athens.
   LYONS, Justice.

Shamalita Franklin, Daphne Johnson, Genny Ervin, and Florene Hanserd-Yar-brough appealed to this Court from a summary judgment entered in favor of CSX Transportation, Inc., and the City of Athens. We transferred the appeal to the Court of Civil Appeals pursuant to § 12-2-7(6), AIa.Code 1975. The Court of Civil Appeals reversed the judgment. Franklin v. City of Athens, 938 So.2d 950 (Ala.Civ. App.2005). We granted certiorari review; we now affirm.

I. Facts and Procedural History

The Court of Civil Appeals stated the facts and procedural history as follows:

“On June 13, 2002, the plaintiffs filed a complaint in the trial court naming as defendants the City [of Athens] and CSX. The complaint asserted claims of negligence and wantonness based upon an alleged breach of duties to provide proper warning to the plaintiffs of a ‘dangerous condition,’ i.e., a ‘ditch’ dug across Pryor Street in the City in front of a railroad crossing where the plaintiffs were involved in an incident while occupying a moving automobile that resulted in injury to them. The complaint also asserted claims of negligence and wantonness against CSX and the City based upon alleged breaches of a duty to maintain the roadway. The City and CSX filed answers asserting that the complaint failed to state a claim upon which relief could be granted, denying the pertinent allegations of the complaint, and asserting various affirmative defenses. In September and October 2003, the City and CSX filed summary-judgment motions; the plaintiffs then filed a response to both motions. On March 2, 2004, the trial court entered a summary judgment in favor of both the City and CSX. On April 1, 2004, the plaintiffs filed a notice of appeal. The Supreme Court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.
“The record reveals that during the first week of June 2000, CSX began upgrading crossings and replacing rails at certain railroad crossings located within the City, including a crossing located on Pryor Street. CSX coordinated street closings with the City and borrowed certain traffic-control devices from the City to block motorized progress across the streets that were to be affected by the railroad crossing maintenance. As repair work began at the Pryor Street crossing, CSX employees placed a row of orange and white traffic ‘barrels’ and an ‘A-frame’ or ‘sawhorse’ painted barricade with an attached ‘ROAD CLOSED’ sign at the intersection of Pryor Street and Marion Street; that intersection was located one block west of the railroad crossing. CSX also posted a second row of orange and white traffic ‘barrels’ immediately in front of the actual crossing.
“On the night of June 13, 2000, Franklin was operating an automobile and conveying Ervin to her home after they had visited one of Franklin’s relatives in a Huntsville hospital; Johnson and Han-serd-Yarborough were also passengers in Franklin’s automobile. Franklin, who was unfamiliar with the area, became lost while driving to Ervin’s home. Franklin subsequently turned the automobile onto Pryor Street, proceeding eastbound, and attempted to cross the railroad tracks while slowing down to approximately 10 to 15 miles per hour. As she did so, Franklin drove her vehicle off the asphalt and onto the ballast of the railroad bed. Franklin and her three passengers suffered injuries in the incident and were subsequently taken to a hospital emergency room; they were treated for soreness and bruising and were released.”

938 So.2d at 951-52.

After reviewing the parties’ arguments, as well as those of amici curiae appearing on behalf of the City, we conclude that the Court of Civil Appeals correctly reversed the summary judgment as to both the City and CSX.

II. Standard of Review

“The standard by which this Court will review a motion for summary judgment is well established:

“ ‘The principles of law applicable to a motion for summary judgment are well settled. To grant such a motion, the trial court must determine that the evidence does not create a genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present “substantial evidence” creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); § 12—21—12(d)[,] Ala.Code 1975. Evidence is “substantial” if it is of “such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989).
“ ‘In our review of a summary judgment, we apply the same standard as the trial court. Ex parte Lumpkin, 702 So.2d 462, 465 (Ala.1997). Our review is subject to the caveat that we must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).’ ”

Payton v. Monsanto Co., 801 So.2d 829, 832-33 (Ala.2001) (quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999)).

III. The City of Athens

In reversing the summary judgment in favor of the City, the Court of Civil Appeals stated:

“In its motion for a summary judgment and its submissions in support thereof, the City essentially argues that it owed no duty to the plaintiffs and, therefore, that it was entitled to a judgment as a matter of law. The City asserts that it owed no duty because § 11-49-3, Ala.Code 1975, places a duty on CSX to maintain the railroad crossing. The City also argued that if it owed a duty it did not breach that duty because it was not involved in the repair of the intersection.
“Merely because CSX owed a duty with respect to the safety of the motoring public does not mean that the City was relieved of its similar, coexisting duty. The negligence of two or more tortfeasors may combine to result in a single, indivisible injury for which both tortfeasors are hable. See Springer v. Jefferson County, 595 So.2d 1381 (Ala.1992). The City failed to explain why the fact that CSX owed a duty operated to relieve the City of its duty. In this case, if there is substantial evidence indicating that CSX left a hazard in a public roadway overnight without adequate barriers or other warning devices, and that the City knew or should have known that that hazard was left in place by CSX without adequate barriers or other warning devices, the City owed a duty to warn the motoring public of that hazard. This duty is no different from that which the City would have had under § 11-47-190 to warn the public upon learning of a hazard created by any private citizen or other party in a public right-of-way after the hazard became known or should have became known to the City....
“The City’s motion for a summary judgment was based on its position that it did not owe a duty to warn the motoring public of any hazard created by CSX’s performance of repairs. That position does not reflect Alabama law. Therefore, the City’s motion for a summary judgment is due to be denied.”

938 So.2d at 953-54.

The City and the amici curiae maintain that the Court of Civil Appeals has erroneously imposed upon the City both a duty to maintain a railroad crossing and a duty to warn of a dangerous condition at a railroad crossing. The City argues to this Court, as it did to the Court of Civil Appeals, that because § 11-49-3, Ala. Code 1975, imposes upon a railroad the duty to maintain a railroad crossing and the “the streets between their rails and for 18 inches on each side,” the City had no duty whatsoever in this situation. The City and the amici curiae argue that the Court of Civil Appeals has created a theory of dual liability that will impose a significant burden upon the cities and counties of this State, and that this Court rejected the concept of dual liability in Yates v. Town of Vincent, 611 So.2d 1040 (Ala.1992).

We do not read the main opinion of the Court of Civil Appeals as broadly as do the City and the amici curiae. We agree with the views of Judge Murdock, expressed in his special concurrence, that the opinion does not impose upon the City the duty to maintain a railroad crossing and the adjacent portion of roadway the railroad is charged with maintaining; rather the opinion merely recognizes that if CSX had allowed a hazard to exist upon a public street without adequately warning the public of that hazard, the City had a duty to warn the public of that hazard if it knew or should have known that the hazard existed. Judge Murdock stated:

“I do not read the main opinion as taking the position that the City breached a duty to repair or maintain that crossing. Rather, I read the main opinion as merely stating that we cannot uphold a summary judgment that was entered solely on the basis of the notion that the City had no duty to warn its motoring public of hazards in public streets even if it knew or should have known of those hazards and knew or should have known that adequate warning was not being given by some other party with an obligation to do so. The City’s obligation is not altered by the fact that the hazard may have come about as a result of maintenance or repair work by a private party within an easement that crosses the public street; the fact remains that the hazard is in a public street.”

938 So.2d at 956.

The City and the amici curiae rely heavily upon Yates v. Town of Vincent, supra, in arguing that the City did not have a duty coexistent with that of CSX to warn the public of defects in a roadway. That reliance, however, is misplaced. In Yates, this Court rejected the concept of “jointly exercised traffic control” in holding that the Town of Vincent owed no duty to maintain a stop sign at an intersection of county highways controlled by Shelby County. 611 So.2d at 1042-43. Yates supports the argument that the City owed no duty to maintain the railroad crossing or the portion of the roadway immediately adjacent to it, but it does not address the issue whether the City had a duty to warn the public of a defect that existed in a public street if it knew or should have known of the defect.

The Court of Civil Appeals pointed out that the City has a statutory duty pursuant to § 11-47-190, Ala.Code 1975, to warn the public upon learning of any hazard created in a public right-of-way after the hazard has become, or should have become, known to the City. Section 11-47-190 provides:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty, or unless the said injury or wrong was done or suffered through the neglect or carelessness or failure to remedy some defect in the streets, alleys, public ways or buildings after the same had been called to the attention of the council or other governing body or after the same had existed for such an unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council or other governing body and whenever the city or town shall be made liable to an action for damages by reason of the unauthorized or wrongful acts or negligence, carelessness or uns-killfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.”

The Court of Civil Appeals also cited several cases in which this Court discussed a city’s duty to warn citizens of hazards in public streets, even if that hazard was created by another. See City of Bessemer v. Brantley, 258 Ala. 675, 679, 65 So.2d 160, 163 (1953) (“It is the duty of the city to use reasonable care that no such danger shall remain in a public street where people have the right to travel, although it was caused by another.”); City of Montgomery v. Moon, 208 Ala. 472, 473, 94 So. 337, 338 (1922) (“ ‘It is the duty of the municipality to guard and protect excavations made in the streets and sidewalks, or in such close proximity thereto as to endanger persons traveling on the street.’ ” (quoting 6 McQuillin, Municipal Corporations § 2774)); City of Montgomery v. Ferguson, 207 Ala. 430, 433, 93 So. 4, 6-7 (1922) (jury charge that “[mjunicipal corporations are due the traveler upon their public thoroughfare the duty of keeping those thoroughfares to the full width thereof in a reasonably safe condition for travel by night as well as by day,” stated the general rule).

We note, as did the Court of Civil Appeals in its main opinion, that although we hold that the City owed Franklin and her passengers a duty to warn of the dangerous condition at the railroad crossing, the existence of that duty would not, in and of itself, be sufficient to allow them to prevail on their negligence claim. Franklin and her passengers must prove the following elements: (1) that the City owed them a duty, (2) that the City breached that duty, and (3) that the breach proximately caused Franklin and her passengers to be injured. See Martin v. Arnold, 643 So.2d 564, 567 (Ala.1994). The Court of Civil Appeals noted:

“[Wjhether the City ultimately is proven to have breached its duty is another question. For example, if the evidence were to show that CSX had in fact put in place adequate warning barriers, but that those barriers subsequently were removed, a question of fact might exist as to whether sufficient time passed between the removal of the barriers and the incident wherein the plaintiffs were injured so as to allow the inference that the City should have discovered the resulting danger and acted upon that discovery.”

938 So.2d at 954 n. 1.

We agree with the Court of Civil Appeals that the City owed a duty to Franklin and her passengers to warn them of the danger in the roadway if the City knew or should have known that the danger existed; therefore, we affirm the judgment of the Court of Civil Appeals reversing the summary judgment entered in favor of the City.

IV. CSX Transportation, Inc.

In reversing the summary judgment entered in favor of CSX, the Court of Civil Appeals stated:

“It was undisputed that when Franklin approached the railroad crossing there were no traffic-control devices, neither barrels nor sawhorses, warning that the road was closed. However, CSX submitted affidavits establishing that CSX employees had placed traffic-control devices at the crossing at the end of the workday. The record does not indicate who may have moved the traffic-control devices. It is undisputed that the traffic-control devices were found in a parking lot roughly a block away from the crossing....
“Reviewing the record in a light most favorable to the plaintiffs and resolving all reasonable doubts against the mov-ant, CSX, we believe that the trial court improperly entered a summary judgment in favor of CSX because a genuine issue of material fact exists. The undisputed fact that the barricades were not in place at 10:00 p.m. gives rise to the reasonable inference that CSX did not place the barricades at all. There is also testimony indicating that the traffic-control devices were in place at the end of the workday and that the traffic control devices were later found a block away. That testimony gives rise to the reasonable inference that someone moved the traffic-control devices after CSX placed them. Viewing the evidence in a light most favorable to the plaintiffs and given the reasonable inferences that can be drawn from the evidence regarding whether the traffic-control devices were in place, there exists a genuine issue of material fact, and CSX was, therefore, not entitled to a judgment as a matter of law.”

938 So.2d at 954-55.

CSX maintains that the opinion of the Court of Civil Appeals improperly reversed the summary judgment entered in its favor based upon speculation that some unknown person or persons had moved the safety devices from the accident site at some point after the CSX workday ended. CSX takes the position that the evidence is undisputed that the warning devices were in place at the end of the workday and that if they were missing at the time of the accident, they were missing because they had been moved by some unknown person or persons. CSX first argues that in this case, where two competing, but equally reasonable, inferences can be drawn from the facts, choosing one inference over another is engaging in speculation, conjecture, and guesswork. It relies upon Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.1987), in which this Court held:

“When evidence points equally to inferences that are favorable and to inferences that are unfavorable to the moving party, the evidence lacks probative value; and the evidence may not be used to support one inference over another because such use is mere conjecture and speculation.”

CSX, relying upon Thompson v. Lee, 439 So.2d 113, 115 (Ala.1983), next argues that the any potential liability it has in this case cannot be predicated on the mere fact that Franklin and her passengers had an accident at the construction site. In Thompson this Court held:

“One can infer negligence from the injury itself only in the rare circumstance where the instrumentality causing the injury is in the defendant’s exclusive possession and the injury would not have occurred absent negligence.”

Finally, CSX argues that it was not responsible for a third party’s criminal conduct, relying upon Ex parte Wild, Wild West Social Club, Inc., 806 So.2d 1235, 1240 (Ala.2001), in which this Court noted:

“ ‘We have held that in order to recover against a defendant for harm caused by the criminal actions of a third party, the plaintiff must establish that the defendant “knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.” Also, a subsequent cause of the plaintiffs injuries is not an “intervening cause,” unless it was unforeseeable.’ ”

(Quoting Thetford v. City of Clanton, 605 So.2d 835, 840 (Ala.1992) (citation omitted).)

As the main opinion of the Court of Civil Appeals points out, and as Judge Murdock elaborates in his special concurrence, despite the affidavit testimony of a CSX employee that the traffic barrels were in place at the end of the workday on the day of the incident involving Franklin’s vehicle, the fact that the barrels were found after the accident some distance away from the railroad crossing gives rise to a plausible inference that the barrels were not, in fact, placed at the site when the workday ended. Judge Murdock stated:

“It is true that an employee of CSX testified that the safety devices at issue were in place at the end of the day. What is undisputed, however, is that these devices were not in place just a few hours later. That fact arguably raises a reasonable inference, not conjecture, that the affidavit testimony of the CSX employee was incorrect. The safety devices included a sawhorse barricade, a number of orange traffic barrels, and a ‘ROAD CLOSED’ sign. None of those devices were found lying in the roadway or off to the side of the road in the vicinity of where they were reportedly placed. Instead, there was evidence indicating that those devices were found the next morning situated in a parking lot a mile[] away from the site of the railroad crossing. These circumstances bolster the inference referenced in the main opinion that the devices may not have been put in place by CSX in the first place. On the other hand, there is no evidence of any criminal activity associated with the absence of the warning devices and barriers at the time of the incident at issue.”

938 So.2d at 956- If indeed the affidavit testimony of the CSX employee was not correct, then inferences other than those advanced by CSX defeat CSX’s arguments.

In Turner v. Azalea Box Co., supra, Turner was injured when a wooden pallet broke when he stepped on it. Evidence presented in the case showed that Azalea Box Company was not the only company that had sold pallets to Turner’s employer, and no evidence was presented as to which company had manufactured the pallet on which he had been injured. In that case, any determination as to which company had manufactured the pallet would have been speculative. We are not presented here with a similar situation. The fact that the safety devices were found at least a block away from the accident site (see note 4) and were not pushed aside at a point adjacent to the site or had not disappeared completely, makes the inference that they were never put in place on the day of the incident a reasonable one.

Likewise, the inference that the safety devices were never placed at the accident site on the day of the incident distinguishes this case from Thompson and Ex parte Wild Wild West Social Club, Inc., supra. CSX’s liability is not predicated on the mere fact that the accident happened and that safety devices were not present at the site, nor is its liability predicated on the criminal acts of a third party. At this stage in the case, several plausible and reasonable inferences can be drawn from the facts presented; therefore, a genuine issue of material fact is presented, and the case is not appropriate for disposition by summary judgment. See, e.g., Prince v. Poole, 935 So.2d 431 (Ala.2006); Wilkerson v. Johnson, 868 So.2d 417 (Ala.2003).

We agree with the Court of Civil Appeals that, viewing the evidence in a light most favorable to the nonmovants, Franklin and her passengers, we must conclude that a genuine issue of material fact exists and that CSX was not entitled to a summary judgment. Therefore, we affirm the judgment of the Court of Civil Appeals reversing the summary judgment entered in favor of CSX.

V. Conclusion

The judgment of the Court of Civil Appeals is affirmed.

AFFIRMED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ„ concur.

      . This plaintiff's name in the Court of Civil Appeals is spelled Florence Hanserd-Yarbor-ough.

      . Amici curiae the Association of County Commissioners of Alabama, the Alabama League of Municipalities, and the City of Huntsville have filed briefs in support of the City's position.

      . CSX also states in its brief that it accepts the factual allegation that the barricades were absent from the crossing at the time of the accident only for purposes of the summaiy-judgment arguments and that if this case is tried it will contest the allegation that the safety devices were missing when Franklin drove into the ditch.

      . We note that Franklin testified in her deposition that she heard a police officer and another man discussing the fact that the safety devices had been located in a parking lot a block away from the accident site. This discrepancy, however, does not detract from the logic of Judge Murdock’s analysis.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Fredrick L. KING and Angela Goode v. STATE of Alabama.
    2050087.
    Court of Civil Appeals of Alabama.
    March 10, 2006.

      Billy C. Burney II of Burney & Burney, Decatur, for appellants.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

Fredrick L. King and Angela Goode appeal the trial court’s judgment ordering the forfeiture of $9,333 in United States currency that law-enforcement officers seized during an investigation into King’s suspected distribution of cocaine. We reverse.

On March 15, 2005, the State of Alabama filed a complaint seeking the condemnation and forfeiture of $9,333 in United States currency pursuant to § 20-2-93, Ala.Code 1975. The State alleged that the money was furnished or intended to be furnished in exchange for a controlled substance. On April 11, 2005, King and Goode filed an answer denying that the money was derived from a violation of the controlled-substance laws of Alabama. King and Goode also filed a claim to the money; King claimed ownership of $833, and Goode claimed ownership of the remaining $8,500. On June 30, 2005, the trial court conducted an ore tenus hearing. On July 13, 2005, the trial court entered a judgment condemning the $9,333. King and Goode filed a postjudgment motion; after conducting a hearing, the trial court entered an order denying the post-judgment motion. King and Goode timely appealed to this court.

The only testimony presented by the State was that of Jim England, a member of the Morgan County Sheriffs drug task force. England testified that in early 2005 two informants told agents with the task force that they had purchased cocaine from King in the past. Prior to the informants’ bringing King to the agents’ attention, the agents had never heard of King. England testified that King did not have a reputation as a drug dealer in the community.

On the morning of February 17, 2005, the agents sent one of the informants into King’s house to obtain narcotics. King told the informant that he did not have the drugs at the house; thus, King drove to another location to get the drugs. Upon King’s return, he gave the informant four and one-half ounces of crack cocaine. The informant did not pay for the narcotics at that time because it was a transaction in which King “fronted” the drugs in anticipation of the informant’s paying King at a later time. The informant gave the drugs to the agents, and the agents obtained a search warrant for King’s residence.

Four or five hours after the first transaction, the agents had the same informant return to King’s house in order to obtain more narcotics. Unlike the previous transaction, the second controlled buy was not a “front” deal. As such, the agents gave the informant $9,000 in marked United States currency. The informant entered the house and left shortly thereafter; an agent met the informant in the driveway as soon as the informant exited the house. The informant gave the agent two plastic bags containing a total of approximately eight ounces of powdered cocaine. The record is unclear whether King drove to another location in order to obtain the narcotics involved in the second transaction.

At that time, the agents entered the house in order to execute the search warrant. England testified that as they entered the house, the agents saw Goode sitting on a couch with several children. King was running down a hall toward the master bedroom; he had in his hands a paper bag from a fast-food restaurant. The agents followed King into the bedroom, where King stopped running after he threw the bag on the floor. The bag contained the $9,000 in marked United States currency that the agents had given the informant.

The agents detained King and began searching the house. The agents found no illegal drugs, drug paraphernalia, scales, or other indicia of the illegal drug trade in the house. The agents did find a .38 caliber handgun, $833 in United States currency in King’s wallet, and $8,500 in $100 bills hidden in a pocket of a large leather jacket in the closet in the master bedroom. At the time of the raid, neither King nor Goode claimed ownership of the $8,500 found in the jacket. The agents confiscated all of the money and the handgun; King and Goode do not challenge the agents’ confiscation of the handgun. King was charged with trafficking in cocaine; Goode was not charged with any offenses.

Goode initially testified that, at the time of the raid, she worked as a housekeeper at a local health-care facility. However, Goode later stated that she was working for another company at the time in question. Despite questioning her place of employment, the State did not dispute that she was working at the time of or before the incident. Goode testified that she had been saving the $8,500 for five years for a down payment on a house. She stated that she had attempted to purchase a house but that she could not secure financing. Goode testified that, at the time of the raid, she did not tell the agents that the $8,500 belonged to her because she was nervous; she did, however, at the time of the raid claim ownership of the vehicle in the driveway.

England testified that King told him that he was receiving Social Security disability income. Goode testified that King had been receiving Social Security disability income for approximately four years and that the $833 in King’s wallet came from his disability check. England testified that the State did not seek the forfeiture of the house or the vehicle in which King drove to get the drugs during the first controlled buy.

The trial court noted in its judgment that it was “reasonably satisfied” that the $9,333 was “furnished or intended to be furnished ... in exchange for controlled substances.” The trial court based its judgment on the fact that the informant conducted two controlled buys within a short period of time, that the second buy involved a “relatively large quantity of cocaine,” that King did not work and was on disability, that the $8,500 was found in a closet in the same room as King, and that the nature of Goode’s employment and her “lack of any detailed explanation” for acquiring the money caused her story to “just ... not add up.” The trial court’s judgment incorrectly stated, however, that crack cocaine and powdered cocaine had been found in the house as a result of the execution of the search warrant.

In its order denying King and Goode’s postjudgment motion, the trial court acknowledged that there was strong circumstantial evidence of the money’s relation to the drug trade, but it acknowledged that the State had failed to “trace the [$9,333] to any one or more specific drug transactions.” The trial court stated that to require the State to show a direct link between the currency at issue and the drug trade would result in large amounts of currency “rarely” being forfeited in cases such as this one.

On appeal, King and Goode argue that the trial court’s judgment of forfeiture is due to be reversed. On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court’s judgment is presumed to be correct unless the record shows it to be contrary to the great weight of the evidence. Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala.Civ. App.2000). Section 20-2-93(a)(4), Ala. Code 1975, under which the State obtained forfeiture of the $9,333 in currency, provides for forfeiture of

“[a]ll moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances.”

“ ‘ “Under § 20-2-93 the State must establish a prima facie case for the seizure, condemnation, and forfeiture of the property. The standard of proof is reasonable satisfaction. The statute is penal in nature and, as such, should be strictly construed.” ’ ” Ex parte McConathy, 911 So.2d 677, 681 (Ala.2005) (quoting Holloway v. State ex rel. Whetstone, 772 So.2d at 476, quoting in turn State v. Smith, 578 So.2d 1374, 1376 (Ala.Civ.App.1991)).

In Gatlin v. State, 846 So.2d 1090 (Ala. Civ.App.2002), this court discussed Alabama caselaw dealing with the forfeiture of property as a result of a person’s involvement with the illegal drug trade. The Gatlin court noted:

“The mere proximity of the drugs to the cash in Gatlin’s vehicle did not satisfy the State’s burden of proof. See Thompson v. State, [715 So.2d 224 (Ala. Civ.App.1997) ]. Our forfeiture cases have found the following circumstances to be indicative of contemplated or completed drug transactions: a large quantity of drugs, see, e.g., Shepherd v. State, 664 So.2d 238 (Ala.Civ.App.1995) (21 pounds of marihuana); drugs packaged for sale, see, e.g., Pointer v. State, 668 So.2d 41 (Ala.Civ.App.1995); drug paraphernalia or accouterments indicating sale, such as ‘baggies’ or scales, see, e.g., Johnson v. State, 667 So.2d 105, 108 (Ala.Civ.App.1995).... ”

Gatlin v. State 846 So.2d at 1092-93.

King and Goode argue that the State did not present any evidence linking the $9,333 to a transaction involving controlled substances. In support of their argument, King and Goode rely heavily on Ex parte McConathy, supra. In McConathy, a suspect bought 23 Xanax pills from an informant, and the police detained the suspect shortly after the transaction. The police searched the vehicle that the suspect was driving and found numerous pharmaceutical pills for which the suspect did not have a prescription, $8,000 in United States currency, and a $9,000 cashier’s check.

The police sought the forfeiture of the $8,000 pursuant to § 20-2-93, Ala.Code 1975. The trial court conducted an ore tenus hearing at which the suspect testified that, at the time of the incident, he was earning $6.15 per hour and that he had recently sold a piece of developed real property from which sale he realized a $12,000 gain. He stated that the $8,000 in United States currency was a part of the $12,000, and that the $9,000 cashier’s check came from the sale of equipment related to the real property. A police officer testified that the suspect told the police that he planned to continue buying drugs with the $8,000.

The trial court entered a judgment of forfeiture, and this court affirmed, without an opinion. McConathy v. State (No. 2021203, June 18, 2004), 915 So.2d 1184 (Ala.Civ.App.2004) (table). Our supreme court reversed. Ex parte McConathy, 911 So.2d at 688. The supreme court stated that “McConathy presented undisputed evidence as to the source of the seized currency, and the officers were unable to trace the currency to ‘any specific drug transaction or any transaction [in] violation of the Alabama controlled substances law.’ ” 911 So.2d at 687-88 (quoting Holloway v. State ex rel. Whetstone, 772 So.2d at 477). Quoting Gatlin v. State, 846 So.2d at 1093, the supreme court noted that “ ‘mere suspicion is insufficient to support a judgment of forfeiture.’” Ex parte McConathy, 911 So.2d at 688. The supreme court concluded that, because the State had presented “no concrete evidence tying the $8,000 to a specific drug transaction,” the trial court’s judgment of forfeiture was due to be reversed. Ex parte McConathy, 911 So.2d at 688.

The State argues that the facts of this case are similar to facts of Harris v. State, 821 So.2d 177 (Ala.2001). In Harris, police conducted an extensive investigation into an elaborate drug-selling operation. As a result of the investigation, the police arrested several people and confiscated illegal drugs, scales, weapons, a vehicle, and $165,501 in United States currency. The police sought the forfeiture of the vehicle and the currency. The trial court conducted an ore tenus hearing at which numerous witnesses testified. One witness testified that, for at least seven months, he had been receiving large amounts of cocaine from the people involved in the scheme. He also testified that he saw several other people taking large amounts of cocaine out of one of the houses involved in the scheme and bringing large amounts of money into the house. The witness saw the money taken into an extra bedroom in the house; during their search, the police discovered a floor safe in that room containing $120,000 of the confiscated money.

The State presented evidence indicating that all of the money was stacked in bundles of $1,000, with the bundles in turn stacked in $10,000 bundles, a manner commonly used by drug dealers. Further, the State presented evidence that one of the drug dealers had been arrested two years before with approximately $21,000 that was bundled in the same manner.

One of the people arrested claimed that she had received $90,000 of the $122,000 that she claimed as a result of her husband’s death 17 years before. However, she was unable to offer any explanation as to how the money increased by more than $30,000 while it sat in shoe boxes under her bed and later in the floor safe. Though the trial court acknowledged that there was no evidence linking the specific bills to a drug transaction, it found that there was “ ‘overwhelming circumstantial evidence’ ” linking the money to the drug trade. Harris v. State, 821 So.2d at 183.

Our supreme court affirmed the trial court’s judgment of forfeiture as to the $165,501. Harris v. State, 821 So.2d at 185. The court noted that the trial court’s judgment as to the money was supported by competent evidence. The supreme court reversed the trial court’s judgment as to the seized vehicle, however, because, despite the presence of scales and a weapon in the vehicle, the State could point to no evidence tending to show that the vehicle was used in a specific transaction. The court noted that “[tjhere was no evidence indicating that the automobile had been used to transport a controlled substance” or that proceeds from a sale of narcotics had been used to purchase the vehicle. 821 So.2d at 185.

In Agee v. State ex rel. Galanos, 627 So.2d 960 (AIa.Civ.App.1993), this court examined whether a defendant’s proffered reasons behind the origin of confiscated property was credible in light of his income and other presented evidence. In Agee, police arrested the defendant for drug-related offenses and confiscated a vehicle allegedly purchased with money obtained in exchange for narcotics. The defendant claimed that he saved the money “over a period of five to ten years.” 627 So.2d at 962. In its judgment, the trial court detailed the defendant’s involvement in the drug trade and his habit of purchasing vehicles with money obtained from his drug sales. Moreover, the trial court gave a detailed account of how the defendant purchased the vehicle at issue in the case; the trial court’s findings regarding the relationship of the seized vehicle to the illegal drug trade was in stark contrast to the evidence presented by the defendant.

The trial court entered a judgment of forfeiture, and this court affirmed. Agee v. State ex rel. Galanos, 627 So.2d at 963. This court discussed the detailed evidence presented by the State and also noted that the trial court had found that the defendant had “testified falsely and that his testimony was unbelievable. Other evidence refleet[ed] that it would have been improbable for [the defendant] to save that amount of money given his annual gross income, which averaged around $10,000.” 627 So.2d at 962. Further, this court noted that where “there is conflicting ore tenus testimony, it is the duty of the trial court to resolve the conflict and to render a judgment accordingly.” 627 So.2d at 962-63.

The facts of this case are distinguishable from those of Harris and Agee. Unlike Harris, no witness described frequently seeing money coming into the house in exchange for drugs. Other than the $9,000 in United States currency provided by the agents, the State presented no evidence linking any of the money in the house to illegal drugs. The informants did not tell the police that they had seen King take money into the bedroom or that they had seen any money at all come into the house. Likewise, the State presented no evidence indicating that the money was stacked in bundles or in some other way frequently used by drug dealers. While the State implied that the jacket belonged to King, it offered no evidence in support of that contention. In Harris, the State presented “ ‘overwhelming circumstantial evidence’ ” that the money was linked to the drug trade (821 So.2d at 183); here, the State presented no evidence at all regarding a connection between the money at issue and an illegal drug transaction.

Unlike in Agee, the State presented no evidence contradicting Goode’s claims. The State failed to offer any evidence as to the amount of King’s disability payments or as to Goode’s income. In Agee, evidence was presented that was in stark contrast to the defendant’s claim that he had saved the money used to purchase the vehicle; here, the State offered no evidence to refute the claims made by King and Goode.

England provided a step by step account of the raid on King’s house. His testimony left no doubt that King violated the laws of Alabama when he provided a substantial amount of cocaine to the informant. While England’s testimony detailed King’s actions over a period of four or five hours, the State provided the trial court no evidence regarding the money at issue. England showed the trial court a photograph of the money after the agents had “fanned [it] out”; however, the State failed to offer any evidence related to the manner in which King or Goode stored the money. No witness testified that King had any prior involvement in the drug trade or that he hid money related to the drug trade in the master bedroom of his house.

In this case, England testified that, before the events on which this appeal focuses, the police were unaware of King’s involvement with the drug trade. Goode was charged with no crime in connection with the illegal drug transaction. The State presented no evidence of Goode’s involvement in the illegal drug trade, and the State did not offer any evidence suggesting that the $8,500 did not, in fact, belong to Goode. Goode testified that she had been saving money in an effort to buy a house and that the $833 in King’s wallet came from his disability income. King and Goode presented undisputed evidence as to the origin of the seized money.

The State in this case has shown no link, either direct or circumstantial, between the seized money and a drug transaction. The agents found no illegal drugs, other than those involved in the underlying transaction. Though they searched the house, the police did not locate any drugs, scales, or other indicia of the illegal drug trade. See Pointer v. State, supra. King had just completed an illegal transaction; however, the money related to that transaction is not at issue in this case. See MeConathy, 911 So.2d at 681.

While we acknowledge the strong presumption of correctness afforded a trial court’s findings of fact in cases such as this, the trial court’s judgment must be supported by the evidence presented. See Ex parte MeConathy, supra. The State presented no evidence indicating that the seized currency was related to a transaction involving illegal drugs. At best, the evidence indicated that the State merely suspected that the money was connected to the drug trade. See Ex parte McConathy, 911 So.2d at 688.

REVERSED AND REMANDED.

All the judges concur.


author: PER CURIAM. BASCHAB, Judge,

text:
    Tony FOUNTAIN v. ALABAMA BOARD OF PARDONS AND PAROLES.
    CR-04-1273.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 2005.
    Rehearing Denied Jan. 13, 2006.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1050557.
    Tony Fountain, pro se.
    Gregory O. Griffin, Sr., chief counsel, and Hugh Davis and Steven M. Sirmon, asst, attys. gen., Alabama Board of Pardons & Paroles.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur; BASCHAB, J., concurs in the result, with opinion.

BASCHAB, Judge,

concurring in the result.

I respectfully concur in the result for the reasons set forth in my special concurrence in Bostwick v. Alabama Board of Pardons & Paroles, 865 So.2d 1245 (Ala. Crim.App.2003).


author: BASCHAB, Judge.

text:
    James Lee HASTINGS v. STATE of Alabama.
    CR-04-1862.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.
    Rehearing Denied Jan. 20, 2006.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1050539.
    Roderick Burke Perdue, Wetumpka, for appellant.
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On February 27, 1989, the appellant, James Lee Hastings, was convicted of second-degree escape, first-degree robbery, and first-degree burglary. On April 14, 1989, the trial court sentenced him, as a habitual offender, to imprisonment for life without the possibility of parole on the first-degree robbery and first-degree burglary convictions and to serve a consecutive term of life in prison on the second-degree escape conviction. See § 13A-5-9(c), Ala.Code 1975. On September 13, 2004, the appellant filed a “Motion for Reconsideration of Sentence Pursuant to the Alabama Supreme Court’s Recent Ruling in Ex parte Kirby.” After the Alabama Department of Corrections (“DOC”) responded, the circuit court conducted a hearing and denied the motion. This appeal followed.

I.

The appellant argues that the circuit court erred when it did not appoint counsel to represent him after he filed his motion.

“The Sixth Amendment guarantees the right of counsel to the accused in all criminal prosecutions. U.S. Const. Amend. VI. This right to counsel encompasses all federal and state criminal prosecutions that result in imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This right is applicable to the states by virtue of the Fourteenth Amendment. Gideon v. Wainwright The right attaches at the initiation of adversary judicial proceedings, and extends to every critical stage of the proceedings. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical stage is any stage where a substantial right of an accused may be affected, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), and can arise in pretrial as well as post-trial proceedings. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (pretrial right to presence of attorney violated during any interrogation occurring after the first formal charging proceedings, absent a valid waiver); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) (pre-trial right to counsel violated where judicial proceedings had been initiated and confession obtained without the presence of counsel and in absence of a valid waiver); Johnston v. Mizell, 912 F.2d 172 (7th Cir. 1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 982, 112 L.Ed.2d 1067 (1991) (post-trial motion for new trial critical stage in criminal proceedings); Menefield v. Borg, 881 F.2d 696 (9th Cir.1989) (post-trial motion for new trial critical stage requiring counsel or valid waiver); King v. State, 613 So.2d 888 (Ala.Cr.App.1993) (post-trial motion for new trial critical stage requiring counsel, absent a valid waiver). Courts have held that a motion to withdraw a guilty plea is a critical stage in a criminal proceeding[ ], requiring effective assistance of counsel. See, e.g., United States v. White, 659 F.2d 231 (D.C.Cir.1981); United States v. Crowley, 529 F.2d 1066 (3rd Cir.1976). In recognizing that a defendant in Alabama has a right to counsel at sentencing and in the first appeal, this court stated in King v. State, 613 So.2d at 891, ‘It would appear that if an indigent defendant is constitutionally entitled to the assistance of counsel at sentencing and in the first appeal as a matter of right, that defendant would be entitled to the assistance of counsel in the interim period, absent a waiver.’ ”

Berry v. State, 630 So.2d 127, 129 (Ala. Crim.App.1993).

A petitioner does not have a right to have his sentence reduced pursuant to § 13A-5-9.1, Ala.Code 1975. Rather, we have held that,

“[a]s long as the circuit court has jurisdiction to rule on a § 13A-5-9.1 motion; reviews any such motion that is properly filed before it by an inmate who is eligible for reconsideration; and, if it chooses to resentence a petitioner, imposes a sentence that is authorized by §§ 13A-5 — 9(c)(2) or 13A-5-9(c)(3), Ala.Code 1975, we will not second-guess that court’s discretionary decision. Compare Rheuark v. State, 625 So.2d 1206 (Ala. Crim.App.1993) (holding that the initial decision to grant or deny probation is entirely within the discretion of the trial court and is not reviewable on appeal); C.D.C. v. State, 821 So.2d 1021, 1025 (Ala.Crim.App.2001) (holding that the decision to refer a defendant to drug court is solely within the prosecutor’s discretion and is not subject to appellate review).”

Prestwood v. State, 915 So.2d 580, 583 (Ala.Crim.App.2005). Because a motion for reconsideration of sentence pursuant to § 13A-5-9.1, Ala.Code 1975, is not a proceeding in which a substantial right of the petitioner may be affected, it is not a critical stage of the proceedings. Cf Magwood v. State, 689 So.2d 959 (Ala.Crim. App.1996) (holding that a Rule 32 petition is not a critical stage of the proceedings); King, supra (holding that a motion for a new trial is a critical stage of the proceedings because it falls between two stages of the proceedings when a defendant has the right to counsel — sentencing and on direct appeal from the conviction). Accordingly, the appellant did not have a right to counsel in this proceeding, and the circuit court did not err when it did not appoint counsel to represent him.

II.

The appellant also argues that the Alabama Board of Pardons and Paroles (“the Board”) should determine which offenders are violent offenders. Specifically, he contends that the determination as to whether an offender is a violent offender should be based on the Board’s rules and regulations and that, under those rules and regulations, he would be considered a nonviolent offender. However, in Kirby v. State, 899 So.2d 968, 974 (Ala.2004), the Alabama Supreme Court held, in pertinent part:

“We conclude that the state’s trial judges have the authority under the statute to determine whether a defendant is a nonviolent offender and that those judges are competent to make that determination based upon the nature of the defendant’s underlying conviction, other factors brought before the judge in the record of the case, and information submitted to the judge by the DOC and the Parole Board concerning the inmate’s behavior while incarcerated. It is axiomatic that only the sentencing judge or the presiding judge- should evaluate the inmate’s crime and his or her conduct associated with that crime in deciding whether the inmate is a nonviolent offender, just as the judge evaluated those factors at the time the inmate was originally sentenced.”

(Emphasis added.) See also Sanders v. State, 934 So.2d 432, 434 (Ala.Crim.App. 2005) (holding that “[wjhether an inmate is a violent offender is for the circuit court to determine and, in the absence of an abuse of its discretion in so determining, we will not disturb its finding on appeal”). Therefore, the appellant’s argument is without merit.

III.

Finally, the appellant argues that § 13A-5-9.1, AIa.Code 1975, violates equal protection principles because it limits the retroactive application of the May 25, 2000, amendments to the Habitual Felony Offender Act to nonviolent offenders. However, the Alabama Supreme Court rejected a similar argument in Zimmerman v. State, 838 So.2d 408 (Ala.2002). Therefore, the appellant’s argument is without merit.

For the above-stated reasons, we affirm the circuit court’s judgment.

AFFIRMED.

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


text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.853(d).
    No. SC05-1702.
    Supreme Court of Florida.
    Sept. 21, 2006.
    William C. Vose, Chair, Florida Bar Criminal Procedure Rules Committee, Orlando, FL, George E. Tragos, Past Chair, Clearwater, FL; John F. Harkness, Jr., Executive Director, and J. Craig Shaw, Bar Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Benjamin H. Hill, III, of Hill, Ward and Henderson, P.A., Tampa, FL, on behalf of the Florida State Committee of the American College of Trial Lawyers; Jennifer L. Greenberg, Tallahassee, FL, Talbot D’Al-emberte, Florida State University School of Law, Tallahassee, FL, and John R. Blue, Sylvia H. Walbolt, Nancy H. Henry, and Christopher J. Kaiser of Carlton Fields, P.A., Tampa, FL, on behalf of the Florida Innocence Initiative, Inc.; Michael Ufferman, Tallahassee, FL, and Paula S. Saunders, Office of the Public Defender, Tallahassee, FL, on behalf of the Florida Association of Criminal Defense Lawyers; and Kris Edward Helton, Avon Park, FL, Responding with comments.
   PER CURIAM.

The Criminal Procedure Rules Committee (Committee) has filed in this Court an emergency recommendation and report to amend Florida Rule of Criminal Procedure 3.853, which governs motions for posteon-viction DNA testing We have jurisdiction. See art. V, § 2(a), Fla. Const.

The history of rule 3.853 is set forth in the Court’s prior opinions. See Amendments to Fla. Rule Crim. Pro. 3.853(d)(1)(A), 884 So.2d 934 (Fla.2004); Amendments to Fla. Rule Crim. Pro. 3.853(d)(1)(A), 857 So.2d 190 (Fla.2003); Amendment to Fla. Rule Crim. Pro. 3.853, 807 So.2d 633, 634 (Fla.2001). Subdivision (d) of rule 3.853 sets forth a deadline for filing certain motions for postconviction DNA testing, and that deadline, which originally was October 1, 2003, was later extended to October 1, 2005. See Amendments to Fla. Rule Crim. Pro. 3.853(d)(1)(A), 884 So.2d 934 (Fla.2004). Prior to expiration of the October 1, 2005, deadline, the Committee filed in this Court the present emergency recommendation and report. The Committee’s proposed amendments would eliminate the deadline altogether.

In order to give the Court sufficient time to consider the Committee’s report and to seek and consider comments concerning the proposed amendments, the Court, on September 29, 2005, issued an order amending rule 3.853(d)(1) on an interim basis, extending the deadline to July 1, 2006. The Committee’s proposed amendments were published for comment in the October 15, 2005, edition of The Florida Bar News, and comments from interested persons were invited. Because the Legislature was considering this matter, the Court held this case in abeyance pending legislative action.

The Legislature has since enacted chapter 2006-292, Laws of Florida (the Act), which became effective June 23, 2006, and applies retroactively to October 1, 2005. The Act amends chapter 925, Florida Statutes (2006), and among other things, removes the deadline for filing postconviction DNA motions. Further, the Act repeals rule 3.853 to the extent it is inconsistent with the Act. In light of the fact that the Committee’s proposed amendments are consistent with the Act, we adopt the amendments as set forth in the attached appendix. Deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 3.853. MOTION FOR POST-CONVICTION DNA TESTING (a)-(c) [No Change]

(d) Time Limitations.

(-D-The-mofion-Jo-r-posteonvi&tio-B-D-NA testmg-must-be-fileek

(A) Within 4 years following the date that the judgment and sentence in the case became final if no direct appeal was taken;' within-4-years-following-the-dafe-the-eon-vietion-was-affeHedr-en-diee&t-appeal-if-an appeal was taken; within 4 years following the date collateral counsel was appointed or-retained subsequent' to the conviction bein-g-afirmed-omd-ireet-appeal-i-n-a-eapital case-in which the death penalty was ■ imposed-; — -or "by- July-1,--2006r-whichever-occurS'later; or

(B) At any time, if the facts on which the-petition is predicated were unknown to fhe-petitioner-or-the-movanfe-attorney-and' could not have been ascertained by the exercise of due diligence.

(2)-A motion to vacate filed under rule 3.850 or a motion for postconviction or collateral relief filed under rule 3.851, which is based solely on the results of the court-ordered DNA testing obtained under this rule, shall be treated as raising a claim of newly-discovered evidence and the time periods set forth in rules 3.850 and 3.851 shall commence on the date that the written test results are provided to the court, the movant, and the prosecuting authority pursuant to subsectioadivision (c)(8).

(e)-(D [No Change]

      . Comments have been filed by three entities: the Florida Association of Criminal Defense Lawyers, the Florida Innocence Initiative, Inc., and a prison inmate. The comments all support the amendments.


author: PER CURIAM. ANSTEAD, J.,

text:
    In re AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE 3.170 AND 3.172.
    No. SC06-1739.
    Supreme Court of Florida.
    Sept. 21, 2006.
    William C. Vose, Chair, Orlando, for Petitioner.
   PER CURIAM.

In light of the recent enactment of chapter 2006-292, Laws of Florida, and pursuant to Florida Rule of Judicial Administration 2.140(d), the Court sua sponte amends Florida Rules of Criminal Procedure 3.170 and 3.172 on an emergency basis. We do this to ensure consistency between the rules and section 925.12, Florida Statutes (2006). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Florida Legislature recently enacted chapter 2006-292, Laws of Florida (the Act), which among other things requires courts to inquire into the existence of physical evidence containing DNA that could exonerate a defendant prior to accepting a plea of guilty or nolo contendere to a felony. See ch. 2006-292, § 2, Laws of Fla. The Act applies to pleas entered after July 1, 2006. See id. Section 2 of the Act provides in relevant part: “It is the intent of the Legislature that the Supreme Court adopt rules of procedure consistent with this section for a court, prior to the acceptance of a plea, to make an inquiry into ... matters [set forth in section 925.12].” See ch. 2006-292, § 2, Laws of Fla.

Accordingly, we adopt on an emergency basis the amendments to the Rules of Criminal Procedure as set forth in the attached appendix. Additions are indicated by underscoring; deletions are indicated by struek-through type. The amendments shall become effective immediately upon release of this opinion. Because the Court did not publish the amendments for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court. We specifically request a comment from the Criminal Procedure Rules Committee.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

ANSTEAD, J., specially concurs with an opinion, in which PARIENTE and QUINCE, JJ., concur.

ANSTEAD, J.,

concurring specially.

I concur fully in adoption of these important amendments. Because of the importance of these amendments, however, I would require that the trial court actually make a finding as to the existence of DNA evidence during the plea proceedings. This issue is far too important, and the legislative intent for a definitive resolution too clear, to leave any ambiguity as to the existence of this evidence that may result without a definitive finding by the court.

PARIENTE and QUINCE, JJ., concur.

APPENDIX

RULE 3.170. PLEAS

(a) Types of Plea; Court’s Discretion. A defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. Except as otherwise provided by these rules, all pleas to a charge shall be in open court and shall be entered by the defendant. If the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to the charge at the first appearance under rule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed. A plea of not guilty may be entered in writing by counsel. Every plea shall be entered of record, but a failure to enter it shall not affect the validity of any proceeding in the cause.

(b) Pleading to Other Charges. Having entered a plea in accordance with this rule, the defendant may, with the court’s permission, enter a plea of guilty or nolo contendere to any and all charges pending against him or her in the State of Florida over which the court would have jurisdiction and, when authorized by law, to charges pending in a court of lesser jurisdiction, if the prosecutor in the other case or cases gives written consent thereto. The court accepting such a plea shall make a disposition of all such charges' by judgment, sentence, or otherwise. The record of the plea and its disposition shall be filed in the court of original jurisdiction of the offense. If a defendant secures permission to plead to other pending charges and does so plead, the entry of such a plea shall constitute a waiver by the defendant of venue and all nonjurisdictional defects relating to such charges.

(c) Standing Mute or Pleading Evasively. If a defendant stands mute, or pleads evasively, a plea of not guilty shall be entered.

(d) Failure of Corporation to Appear. If the defendant is a corporation and fails to appear, a plea of not guilty shall be entered of record.

(e) Plea of Not Guilty; Operation in Denial. A plea of not guilty is a denial of every material allegation in the indictment or information on which the defendant is to be tried.

(f) Withdrawal of Plea of Guilty. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn the plea may not be used against the defendant in a trial of that cause.

(g) Vacation of Plea and Sentence Due to Defendant’s Noncompliance.

(1) Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.

(2) Unless otherwise stated at the time the plea is entered:

(A) The state may move to vacate a plea and sentence within 60 days of the defendant’s noncompliance with the specific terms of a plea agreement.

(B) When a motion is filed pursuant to subdivision (g)(2)(A) of this rule, the court shall hold an evidentiary hearing on the issue unless the defendant admits noncompliance with the specific terms of the plea agreement.

(C) No plea or sentence shall be vacated unless the court finds that there has been substantial noncompliance with the express plea agreement.

(D) When a plea and sentence is vacated pursuant to this rule, the cause shall be set for trial within 90 days of the order vacating the plea and sentence.

(h) Plea of Guilty to Lesser Included Offense or Lesser Degree. The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged that is included in the offense charged in the indictment or information or to any lesser degree of the offense charged.

(i) Plea of Guilty to an Offense Divided into Degrees; Determination of the Degree. When an indictment or information charges an offense that is divided into degrees without specifying the degree, if the defendant pleads guilty, generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty.

(j) Time and Circumstances of Plea. No defendant, whether represented by counsel or otherwise, shall be called on to plead unless and until he or she has had a reasonable time within which to deliberate thereon.

(k) Responsibility of Court on Pleas.

(l) No plea of guilty or nolo contendere shall be accepted by a court without the court first determining, in open court, with means of recording the proceedings steno-graphically or mechanically, that the circumstances surrounding the plea reflect a full understanding of the significance of the plea and its voluntariness and that there is a factual basis for the plea of guilty.

(2) No plea of guilty or nolo contendere to a felony shall be accepted by a court without the court first inquiring of the defendant and of counsel for the defendant and the state as to physical evidence containing DNA known to exist that could exonerate the defendant. If no physical evidence containing DNA that could exonerate the defendant is known to exist, the court may proceed with consideration of accepting the plea. If physical evidence containing DNA that could exonerate the defendant is known to exist, the court may postpone the proceeding on the defendant’s behalf and order DNA testing upon motion of counsel specifying the physical evidence to be tested.

(3) A complete record of the proceedings at which a defendant pleads shall be kept by the court.

(Z) Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e).

RULE 3.172 ACCEPTANCE OF GUILTY OR NOLO CONTENDERE PLEA

(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.

(b) Open Court. All pleas shall be taken in open court, except that when good cause is shown a plea may be taken in camera.

(c) Determination of Voluntariness. Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;

(2) if the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against him or her and, if necessary, one will be appointed to represent him or her;

(3) that the defendant has the right to plead not guilty or to persist in that plea if it has already been made and that the defendant has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to compel attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself;

(4) that if the defendant pleads guilty, or nolo contendere without express reservation of the right to appeal, he or she gives up the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, but does not impair the right to review by appropriate collateral attack;

(5) that if the defendant pleads guilty or is adjudged guilty after a plea of nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he or she waives the right to a trial;

(6) that if the defendant pleads guilty or nolo contendere, the trial judge may ask the defendant questions about the offense to which he or she has pleaded, and if the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against him or her in a prosecution for perjury;

(7) the complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result;

(8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases; and

(9) that if the defendant pleads guilty or nolo contendere, and the offense to which the defendant is pleading is a sexually violent offense or a sexually motivated offense, or if the defendant has been previously convicted of such an offense, the plea may subject the defendant to involuntary civil commitment as a sexually violent predator upon completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated in this respect, as this admonition shall be given to all defendants in all cases.

(d) Inquiry Concerning DNA Evidence. Before accepting a plea of guilty or nolo contendere to a felony, the trial judge must inquire of the defendant and of counsel for the defendant and the state as to physical evidence containing DNA known to exist that could exonerate the defendant. The judge must inquire into the following:

(1) whether counsel for the defense has reviewed the discovery disclosed by the state and whether such discovery included a listing or description of physical items of evidence;

(2) whether the nature of the evidence against the defendant disclosed through discovery has been reviewed with the defendant;

(3) whether the defendant or counsel for the defendant is aware of any physical evidence disclosed by the state for which DNA testing may exonerate the defendant; and

(4) whether the state is aware of any physical evidence for which DNA testing may exonerate the defendant.

(e) Acknowledgment by Defendant. Before the trial judge accepts a guilty or nolo contendere plea, the judge must determine that the defendant either (1) acknowledges his or her guilt or (2) acknowledges that he or she feels the plea to be in his or her best interest, while maintaining his or her innocence.

(ef) Proceedings of Record. The proceedings at which a defendant pleads guilty or nolo contendere shall be of record.

(fg) Withdrawal of Plea Offer or Negotiation. No plea offer or negotiation is binding until it is accepted by the trial judge formally after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

(gh) Withdrawal of Plea When Judge Does Not Concur. If the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn.

(hi) Evidence. Except as otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo contendere, later withdrawn, or of statements made in connection therewith, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

(ij ) Prejudice. Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.

      . An original and nine paper copies of all comments must be filed with the Court on or before November 20, 2006, along with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004) (on file with Clerk, Fla. Sup.Ct.).


text:
    In re AMENDMENTS TO THE FLORIDA RULES OF TRAFFIC COURT (THREE YEAR CYCLE).
    No. SC06-150.
    Supreme Court of Florida.
    Sept. 21, 2006.
    Honorable Peter A. Sartes, II, Chair, Traffic Court Rules Committee, Clear-water, FL, Joseph C. Bodiford, Past-Chair, Tampa, FL, and Jack Harkness, Jr., Executive Director, the Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Traffic Court. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Traffic Court Rules Committee (committee) has filed its regular cycle report of proposed amendments to the Florida Rules of Traffic Court. The committee proposes amendments to rules 6.040 (Definitions); 6.455 (Amendments); and 6.630 (Civil Traffic Infraction Hearing Officer Program; Traffic Hearing Officers). The proposed amendments were published for comment in the October 15, 2005, and the March 1, 2006, editions of The Florida Bar News. No comments were received.

Upon consideration, we hereby amend the Florida Rules of Traffic Court as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments will become effective on January 1, 2007, at 12:01 a.m.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 6.040. DEFINITIONS

The following definitions apply:

(a)-(p) [No Change]

(q) “Counsel” means any attorney who represents a defendant.

Committee Notes

[No Change]

RULE 6.455. AMENDMENTS

The charging document may be amended by the issuing officer in open court at aaythe time before the heaengof a scheduled hearing before it commences, subject to the approval of the official. The official shall grant a continuance if the amendment requires one in the interests of justice. No case shall be dismissed by reason of any informality or irregularity in the charging instrument.

Committee Notes

[No Change]

RULE 6.630. CIVIL TRAFFIC INFRACTION HEARING OFFICER PROGRAM; TRAFFIC HEARING OFFICERS

Under the authority of sections 318.30-318.38, Florida Statutes, and article V, section 2, Florida Constitution, this court adopts the following rules and procedure for the Civil Traffic Infraction Hearing Officer Program:

(a)-(j) [No Change]

(k) Implementation of Program. In any county electing to establish a program, the chief judge shall develop a plan for its implementation and shall submit the plan to the Office of the State Courts Administrator. Funds for the program shall be used for traffic hearing officer program salaries — provided-that the traffic-hearing officers shall be paid no more than-$50 per heurj and other necessary expenses, such as training, office rental, furniture, and administrative staff salaries. Any county electing to establish a traffic hearing officer program shall provide the funds necessary to operate the program.

(Z)-(n) [No Change]

Committee Notes

[No Change]


author: CASANUEYA, Judge.

text:
    CITY OF CLEARWATER and Charles Esposito, Appellants, v. Tony WILLIAMSON, Appellee.
    No. 2D05-2936.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
    Rehearing Denied Oct. 12, 2006.

      Paul Richard Hull, Assistant City Attorney, Clearwater, for Appellants City of Clearwater and Charles Esposito.
    W. Clay Mitchell, Orlando, for Appellee.
   CASANUEYA, Judge.

The City of Clearwater and Charles Es-posito, a former Clearwater police detective, appeal from a judgment entered after a jury found them liable for malicious prosecution, false arrest and imprisonment, and intentional infliction of emotional harm. We reverse because Detective Esposito possessed probable cause to arrest.

This case was previously before this court after the trial court denied Detective Esposito qualified immunity by refusing to enter a summary judgment in the detective’s favor on a claim that Tony Williamson brought pursuant to 42 U.S.C. § 1983 (1995). Esposito v. Williamson, 854 So.2d 694 (Fla. 2d DCA 2003) (reversing denial of summary judgment and grant of qualified immunity under 42 U.S.C. § 1983 (1995) and holding that a reasonable officer could have believed that there was probable cause for the arrest). Consequently, on remand from Esposito, two counts of the five-count complaint were dismissed before trial and the remaining three counts went to trial, where the primary issue was the existence of actual probable cause.

Evidence Adduced At Trial

Detective Esposito arrested Mr. Williamson after conducting an investigation into an allegation by his former girlfriend, Diana Grimmage, that he molested her two-year-old daughter, M.L., in January 1996. During the latter months of 1995, Mr. Williamson and Ms. Grimmage lived together in her apartment with her two children, M.L. and Ms. Grimmage’s other daughter, who was born during this time frame. They parted ways about two weeks before the alleged incident for a variety of reasons, and the breakup apparently was not amicable. During the time that they lived together, Mr. Williamson bonded with the two children, and he promised to visit them on Sunday, January 14, 1996. However, he was delayed and arrived at the apartment after midnight.

Ms. Grimmage claimed that while he was at her apartment, she left to take a shower and afterwards, when she entered the bedroom, she saw Mr. Williamson with his hand down the front of M.L.’s underwear, palm inwards, with his hand moving up and down. When she asked him what he was doing, he became angry and defensive and stormed out of the residence. The next day, Tuesday, around noon, she called Clearwater police and registered a complaint, accusing Mr. Williamson of sexually fondling M.L. She told Officer Robert Fava, the first responder, that she had delayed calling the authorities because Mr. Williamson had threatened her with physical violence if she reported the incident and that in the past he had been verbally violent and threatened her. Officer Fava took down the initial report, requested that an additional patrol be assigned to her address because of her fear for her safety, and called in Detective Esposito to continue the investigation. The detective arrived within the hour and was briefed on the situation by Officer Fava before speaking to Ms. Grimmage.

Officer Fava’s written report, completed and filed later on Tuesday after he briefed Detective Esposito, states that the alleged incident with M.L. occurred in the late afternoon of Monday, the previous day. Ms. Grimmage’s account to Detective Es-posito of the incident and the circumstances of her history with Mr. Williamson were consistent, in the main, with what she had told Officer Fava, including the time frame of the incident. Detective Esposi-to’s recollection of his face-to-face interview with Ms. Grimmage was that Mr. Williamson left immediately after the incident; however, he was not focusing at that moment on when Mr. Williamson had arrived or how long he had stayed. The detective arranged for a physical exam of M.L. on Thursday, but the results of this exam were nonspecific. The exam revealed redness and inflammation that could be attributed to sexual molestation, but these symptoms were not conclusive and could have been caused by other activity as well. The story Ms. Grimmage told the Child Protective Team (CPT) investigator at the time of the medical exam was also consistent with what she had told the law enforcement officers.

On the day of the exam, Thursday, the detective, who knew that Mr. Williamson had an outstanding warrant on an unrelated charge, arranged for another officer to arrest Mr. Williamson and bring him to the police station that afternoon. While there, the detective spoke to Mr. Williamson about Ms. Grimmage’s allegations. Mr. Williamson, while admitting that he was at Ms. Grimmage’s apartment on Monday morning, vehemently denied molesting the child, saying he did not see M.L. before he left the apartment sometime in the morning to go look for work. Detective Esposito’s suspicions were aroused because the detective did not indicate which daughter was involved, and Mr. Williamson mentioned the alleged victim by name in denying that he molested her. At this point, the detective was under the mistaken impression that the incident had occurred around 10 a.m. on Monday. But, before the detective mentioned the time of the alleged incident, Mr. Williamson said he had left around 10 a.m.

Other things about Mr. Williamson’s history also were troublesome for Detective Esposito and fit with the detective’s prior experiences with child molesters: Mr. Williamson had previously been arrested for domestic battery involving both his ex-wife and daughter, who was at the time fifteen years old; and Mr. Williamson’s father was regularly physically abusive to him while he was growing up. In his defense, Mr. Williamson told the detective that Ms. Grimmage had not wanted him to move out and had threatened calling the authorities to allege child abuse against him if he should ever leave her. At that time, sometime before Christmas 1995, Mr. Williamson .told three different people about her threats: an ex-girlfriend with whom he was still friendly, the manager of the apartment complex where Ms. Grimmage lived, and Ms. Grimmage’s foster mother.

Pausing in this preliminary interview with Mr. Williamson to follow up on the information Mr. Williamson provided, Detective Esposito contacted Mr. Williamson’s ex-girlfriend, who confirmed that Mr. Williamson had told her of Ms. Grim-mage’s threats to him. When the detective resumed the interview with Mr. Williamson, Mr. Williamson reiterated that after he left the apartment Monday morning, he went to several places to turn in job applications and did not return to Ms. Grimmage’s apartment that day. The detective at this time was still mistakenly thinking that the incident occurred in the morning, so this last statement by Mr. Williamson did not dissipate his suspicions. The interview was halted temporarily so the detective could make further calls. Before again resuming the interview, Detective Esposito talked with Officer Fava, who recounted that the manager of the apartment complex had confirmed to him that Mr. Williamson had told her of threats made by Ms. Grimmage; but apparently the manager had no reason to disbelieve Ms. Grimmage. Officer Fava also told him that Ms. Grimmage’s foster mother was present at his interview with the manager, and she never questioned Ms. Grimmage’s credibility or indicated to Officer Fava that Ms. Grimmage’s allegations could be false. Based on what he had discovered to this point, around 9 p.m. Thursday, Detective Esposito arrested Mr. Williamson.

Detective Esposito continued his investigation the next day and discovered a thirteen-year-old neighbor who had been passing by Ms. Grimmage’s apartment around 4:30 p.m. that previous Monday and heard a man and woman arguing loudly, yelling and cursing. At this point, the detective realized that he had told Mr. Williamson during his interviews the day before the wrong time of the alleged incident. And although Mr. Williamson had given him some indication of an alibi — that after he left Ms. Grimmage he turned in several job applications at various locations during the day — the detective did not think that mere job applications, unlike a job interview, would aid in his investigation, or substantiate Mr. Williamson’s alibi or his statement that he did not return to Ms. Grimmage’s that Monday after he left. Nor could he seek more clarification from Mr. Williamson because by Friday, Mr. Williamson had invoked his Fifth and Sixth Amendment rights. Detective Esposito, at the time he arrested Mr. Williamson on Thursday and thereafter, believed Ms. Grimmage was the more credible. On Friday, during the detective’s follow-up activities, Ms. Grimmage confirmed to him that Mr. Williamson had arrived at her apartment on Monday shortly after midnight.

The jury did not agree with the detective’s assessment of Ms. Grimmage’s credibility. At the trial on the criminal charge of lewd and lascivious behavior with a minor, the jury found Mr. Williamson not guilty. Because Mr. Williamson believed that Detective Esposito lacked probable cause and failed to properly investigate the allegations against him before his arrest, he instituted the civil suit underlying this appeal and prevailed. The City of Clear-water, on behalf of itself and Detective Esposito, claims that the detective did not lack probable cause; therefore, because all the civil claims are founded on lack of probable cause, the trial court erred in denying the motions for directed verdict. We agree with the City.

Discussion

Because this case involves the underlying question of the presence of probable cause, we apply a de novo standard of review. State v. Glatzmayer, 789 So.2d 297 (Fla.2001); Metropolitan Dade County v. Norton, 543 So.2d 1301 (Fla. 3d DCA 1989). Based on the following analysis, we hold that the trial court erred in submitting this case to the jury because, as a matter of law, Detective Esposito had probable cause to arrest Mr. Williamson. Cf. City of St. Petersburg v. Austrino, 898 So.2d 955 (Fla. 2d DCA 2005) (holding that an identification or a report from a single credible victim or eyewitness can provide the basis for probable cause, but the arresting detective did not make adequate investigation to establish probable cause prior to making arrest for prescription fraud), review denied, 911 So.2d 97 (Fla.2005).

“Probable cause is a fluid concept.” It affords law enforcement officers some latitude for error. Austrino, 898 So.2d at 957-58. To determine whether probable cause exists in a case, the court must examine the totality of circumstances. “Focusing on the totality of circumstances requires an assessment of probabilities in that particular factual context. These probabilities are ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Id. at 958 (citing Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Because of its fluid nature, no formula can precisely determine probable cause. “Rather, it is the ‘probability, and not a prima facie showing, of criminal activity [that] is the standard of probable cause.’ ” Doorbal v. State, 837 So.2d 940, 952-53 (Fla.2003) (quoting Illinois v. Gates, 462 U.S. at 235, 103 S.Ct. 2317; citations omitted). Within these parameters, a court can state that probable cause “exists where an officer ‘has reasonable grounds to believe that the suspect has committed a felony. The standard of conclusiveness and probability is less than that required to support a conviction.’ ” Chavez v. State, 832 So.2d 730, 747 (Fla.2002) (quoting Walker v. State, 707 So.2d 300, 312 (Fla.1997)).

Here, the arrest was for an alleged violation of section 800.04, Florida Statutes (1995), which makes it unlawful for a person to commit a lewd, lascivious, or indecent assault or act upon a child. To make an arrest for a violation of this statute, Detective Esposito required probable cause to believe that the following occurred: Mr. Williamson handled, fondled or assaulted a child; the child was less than sixteen years of age; and the act was done in a lewd, lascivious, or indecent manner.

The facts of this case as known to the detective before he arrested Mr. Williamson show the following. After arriving at Ms. Grimmage’s apartment and speaking with her on Tuesday, January 16, Ms. Grimmage provided the following information, which was consistent with what she had told Officer Fava:

1. her daughter M.L. was two-and-a-half years old;
2. the day before, January 15, she witnessed Mr. Williamson with his hand placed inside M.L.’s underwear and shorts, palm facing the child’s vaginal area; at that time, his hand was moving up and down;
3. when she challenged his conduct, he became angry and left.

At this point in the investigation, the detective possessed, at a minimum, arguable probable cause. But he made no arrest at this time. Instead, he had the child examined by a physician on Thursday. While the results of the medical examination were not conclusive, they were consistent with the allegation of criminal conduct, and the CPT investigator confirmed that Ms. Grimmage’s report of events to the investigator was consistent with the information she had provided the detective.

Still he made no arrest but pursued further investigation. Next, the detective interviewed Mr. Williamson, who, during the first interview, denied molesting the alleged victim, whom he identified by name even though the detective had not disclosed which of Ms. Grimmage’s minor daughters was involved. The officer believed this disclosure significant. He temporarily suspended the interview with Mr. Williamson and attempted to verify some of the information Mr. Williamson had provided. The detective received confirmation that Mr. Williamson had told others of threats that Ms. Grimmage had allegedly made to him in November or December. This detective was very experienced in investigating sexual crimes against children and recognized that this could represent a preemptive move on Mr. Williamson’s part. Only at that point, Thursday evening, did he arrest Mr. Williamson.

As a matter of law, the information possessed by the detective met the legal requirements of probable cause. A prudent person could have reasonably believed the information provided by Ms. Grimmage, the physician, and the CPT investigator. The information obtained through the course of the investigation would lead a reasonable officer to conclude that the offense of a lewd act on a minor child had likely been committed.

However, Mr. Williamson argues on appeal that the detective’s liability and thus the City’s derivative liability are established because the detective failed to conduct a proper investigation by ignoring evidence provided by Mr. Williamson that would have exonerated him. We disagree.

To establish probable cause, an officer is required to conduct a reasonable investigation, but the officer does not have to take every conceivable step to eliminate the possibility of convicting an innocent person. Rankin v. Evans, 133 F.3d 1425 (11th Cir.1998); see also Colosimo v. City of Port Orange, 2005 WL 1421294 (M.D.Fla. June 16, 2005).

The facts and proceedings in Rankin are similar to Mr. Williamson’s case. Mr. Rankin, a child care worker, was charged with child abuse, but a grand jury refused to indict him; he sued the arresting deputy and the sheriffs office for liability under 42 U.S.C. § 1983 and added a state claim for false arrest. The trial court denied a defense motion for directed verdict and allowed the case to go to a jury, which returned a substantial verdict in favor of Mr. Rankin. Upon a defense motion for JNOV, the trial court set aside the verdict on the ground that probable cause for the arrest existed as a matter of law. In its opinion affirming the trial court’s grant of JNOV, the Eleventh Circuit agreed that probable cause existed as a matter of law. 133 F.3d at 1443. The court discussed the deputy’s investigation of the complaint against Mr. Rankin, noting that the deputy had interviewed the three and one-half year old alleged victim, who identified Mr. Rankin by his nickname, and the child’s mother. Id. at 1429. The child also made several improbable or inconsistent statements regarding the timing of the abuse. Id. Additionally, the deputy interviewed the child’s pediatrician, whose examination had found signs indicating possible sexual abuse. This investigation was held by the court to be legally sufficient.

Mr. Williamson’s allegedly exonerating evidence falls into two categories. First, he claims that he gave the detective information that constituted an alibi, i.e., that he was out of Ms. Grimmage’s apartment by mid-morning Monday applying for jobs. This information does not conclusively establish an alibi. Furthermore, a police officer is not required to investigate a defendant’s alibi before making a probable cause determination. Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.1996). Second, Mr. Williamson gave the detective information, later confirmed, that Ms. Grimmage had previously threatened to have him arrested for this type of offense should they ever separate and he had related these threats to others. In Mr. Williamson’s opinion, this information substantially diminished Ms. Grimmage’s credibility. However, Detective Esposito was entitled to rely upon the information Ms. Grimmage gave him as it was reasonable to believe she was telling the truth in light of all the then-known facts. See Weissman v. K-Mart Corp., 396 So.2d 1164 (Fla. 3d DCA 1981) (“First hand knowledge by an officer is not required; the receipt of information from someone who it seems reasonable to believe is telling the truth is adequate.” (citing Salas v. State, 246 So.2d 621 (Fla. 3d DCA 1971), and Walker v. State, 196 So.2d 8 (Fla. 3d DCA 1967))). Under the totality of the circumstances, the investigation undertaken by Detective Esposito was objectively reasonable and provided him with probable cause to arrest Mr. Williamson.

In contrast, this court determined that the investigation was legally inadequate in Austrino, 898 So.2d 955, where no witness with direct knowledge was interviewed by the arresting officer before the arrest. Instead, in Austrino, the investigation was initiated by a report of a witness who was merely suspicious and who had no direct involvement in or knowledge of the alleged crime; the arresting detective then interviewed other third parties who also had no more knowledge than the first. In contrast, Ms. Grimmage told the investigating detective that she actually witnessed the crime and physical evidence did not prove her unworthy of belief. Distinguishing Austrino, we therefore hold that the arrest of Mr. Williamson was based upon probable cause following an objectively reasonable investigation.

Reversed and remanded with instructions to enter a judgment in favor of the City and Detective Esposito.

KELLY, J., and LEVENS, WILLIAM P., Associate Judge, concur.

      . Clearwater Detective Esposito is now with the Federal Bureau of Investigation.


text:
    Pamela Clark JORDAN, Appellant, v. SEA WORLD OF FLORIDA, INC., Appellee.
    No. 5D05-3809.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2006.
    Joseph H. Williams, of Troutman, Williams, Irvin, Green, Helms & Polich, P.A., Winter Park, for Appellant.
    G. Mark Thompson and Laurie D. Beechner, of Marshall, Dennehey, Warner, Coleman & Goggin, P.A. Orlando, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Russo v. Lake Buena Vista Communities, Inc., 721 So.2d 772, 775 (Fla. 5th DCA 1998); Mayo v. Publix Super Markets, Inc., 686 So.2d 801, 802 (Fla. 4th DCA 1997); Gunlock v. Gill Hotels Company, 622 So.2d 163, 164 (Fla. 4th DCA 1993).

THOMPSON, PALMER and TORPY, JJ., concur.


text:
    Lewis William WALLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4053.
    District Court of Appeal of Florida, Fifth District.
    Sept. 26, 2006.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Henry v. State, 864 So.2d 560 (Fla. 5th DCA 2004); Scott v. State, 519 So.2d 734 (Fla. 3d DCA 1988); and Watson v. State, 415 So.2d 128 (Fla. 4th DCA 1982).

SAWAYA, TORPY and EVANDER, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. Ron DIXON, Attorney Ad Litem, and Guardian Ad Litem Program, Appellees.
    No. 4D06-2150.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey Bassett, Assistant Attorney General, Fort Lauderdale, for appellant.
    Patricia M. Propheter, Orlando, for ap-pellees.
   PER CURIAM.

Considering appellee’s concession of error, we reverse the trial court’s order of dependency. The trial court was without jurisdiction to conduct an adjudicatory hearing because the children turned 18 before the date of the hearing. Also, the court erred in back-dating its order of adjudication to a hearing date where no evidence was taken to substantiate an adjudication of dependency.

POLEN, SHAHOOD and GROSS, JJ., concur.


text:
    Alfonso Jose ALZAMORA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1703.
    District Court of Appeal of Florida, Fifth District.
    Oct. 3, 2006.

      Kirk N. Kirkconnell and William R. Po-nall, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Barnum, 921 So.2d 513 (Fla.2005).

THOMPSON, PALMER and MONACO, JJ., concur.