author: WELCH, Presiding Judge.

text:
    Curtis Dale BROOKS v. STATE of Alabama.
    CR-09-1826.
    Court of Criminal Appeals of Alabama.
    March 25, 2011.

      Mary W. Craig, Roanoke, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   WELCH, Presiding Judge.

A Randolph County grand jury returned a three-count indictment against Curtis Dale Brooks on February 17, 2009, charging him with three counts of first-degree robbery. § 13A-8-41, Ala.Code 1975. Count 1 charged that, while Brooks was engaged in the theft of currency belonging to Mildred Freeman, he was armed with a pistol and used force or threatened the use of force against Freeman or another person with the intent to overcome her resistance or to compel her acquiescence. Count 2 charged that, while Brooks was engaged in the theft of currency belonging to Tony White, he was armed with a pistol and used force or threatened the use of force against White or another person with the intent to overcome his resistance or to compel his acquiescence. Count 3 charged that, while Brooks was engaged in the theft of currency belonging to Ann’s Flowers and Gifts retail flower shop, he was armed with a pistol and used force or threatened the use of force against Tony White and/or Mildred Freeman, employees of the flower shop, or another person with the intent to overcome his resistance or to compel his acquiescence. Brooks was tried before a jury and was convicted on all counts. Brooks filed a motion for a judgment of acquittal or for a new trial, arguing that the evidence was insufficient to support a finding of guilty beyond a reasonable doubt and that the verdicts were contrary to the great weight of the evidence. The trial court denied the motion. The trial court sentenced Brooks, a habitual felony offender, to 85 years’ imprisonment; the court also ordered Brooks to pay a victim’s compensation assessment, court costs, attorney fees, and restitution. This appeal follows.

Investigator James Bailey testified that he was employed with the Roanoke Police Department and that he responded to a report of a robbery on June 28, 2008, at Ann’s Flowers and Gifts, a retail flower shop. He interviewed witnesses Tony White, Mildred Freeman, and Ann Napier. He obtained a description of the robber, who fled the scene on foot, so patrol officers could be on the lookout for him. The robber was described as a dark-complected black male, approximately 5 feet 10 inches tall, with a noticeable dental overbite. Bailey testified that White had waited on the man when he came into the shop, so he had the best opportunity to observe the robber’s physical characteristics. Bailey showed White a photographic lineup with six men who matched the suspect’s physical description. Brooks’s photograph was not in the lineup. White was unable to identify the robber from those photographs.

Bailey then presented White with photographs of every black male the police department had arrested previously; he estimated there were between 300 and 500 photographs. Brooks’s photograph was not among those photographs. White was unable to identify the robber from those photographs. Bailey said that he was notified later — while he was on vacation — that White had identified Brooks at a grocery store in the area.

Bailey testified that he processed the crime scene for fingerprints but that he found no prints of value. He searched outside the building for evidence, such as clothing, and he found nothing.

Bailey testified that he interviewed Brooks on July 14, 2008. Brooks told him that he had not been in Roanoke on the day of the robbery. He said that he had been working with his boss, Luke Gun-nells, and another man in Lee County, and that he had later spent time with one of his girlfriends, Zanetta Hicks, at her hairdresser’s shop. Bailey testified that he spoke to Gunnells, both of Brooks’s girlfriends, and Hicks’s hairdresser, and none of the witnesses could corroborate anything Brooks had told him.

Investigator Jonathan Caldwell testified that he was employed by the Roanoke Police Department and that he investigated the robbery while Bailey was on vacation. He said that he showed White additional photographic lineups to see if he recognized the robber, but White did not. Brooks’s photograph was not in any of those lineups. Caldwell said that he was notified that White had seen the robber again, at a grocery store in Lanett, on July 10, 2008. Caldwell and Roanoke Police Chief Adam Melton interviewed Brooks at the police department. Brooks stated that on the day of the robbery, he had been working with Luke Gunnells in Dadeville all day and that he did not go to Roanoke that day. Brooks’s vehicle and a residence where he was staying were searched on July 10, but no evidence connected to the robbery was recovered.

Caldwell testified that the prosecutor obtained Brooks’s cellular-telephone records for the date of the robbery and that none of the records indicated that Brooks had made any calls in the Roanoke area on that date. Caldwell also testified that there was no cellular-transmission tower in Roanoke. The call records indicated that Brooks had been in the Lanett area on June 28. The closest cell-phone tower to Roanoke was located in LaFayette, Caldwell said, and he estimated that LaFayette was located 20-30 minutes by automobile from Roanoke. Caldwell was unable to determine the time zone used in the cellular-telephone records, so he could not determine the times when Brooks’s calls were made on the date of the robbery. Caldwell said it was possible that Brooks was in Roanoke at the time the robbery was committed.

Defense counsel asked Caldwell whether he had spoken with Mildred Freeman, Ann Napier, and Malcolm Rowland, witnesses who had been inside the shop or had seen the robber, and whether they had identified Brooks from a photographic lineup. Caldwell said that Freeman and Napier were not sure of an identification and that Rowland had identified Brooks from the lineup.

Chief Melton testified about his participation in the investigation of the robbery and of Brooks’s arrest after White saw him in Lanett. Melton testified that he spoke with Brooks’s employer, Luke Gunnells, on two occasions. Gunnells first stated that Brooks had been with him on the date of the robbery, but he telephoned later and told investigators that his information had been incorrect and that Brooks had not been with him on that date.

Robyn Barnes testified that she is a hairdresser in Lanett and that Zanetta Hicks had been a client of hers. Barnes testified that she kept records of her clients and that she showed the record book to the police when they came to her shop in June or July 2008. The book showed that Barnes had last styled Hicks’s hair on May 17, 2008.

Tony White testified that he worked full-time at a Kroger grocery store in Lanett, and that he worked part-time at Ann’s Flowers and Gifts. Ann Napier, the owner, is his mother-in-law, he said. White testified that on the morning of June 28, 2008, he was working in the shop with Napier when a black man he identified as Brooks came into the store. He was wearing blue jeans and a white t-shirt. White and Napier assisted Brooks, who said he wanted to buy a picture frame like the one his grandmother had previously purchased in the shop. White testified that he spent more than five minutes with Brooks while Brooks looked at picture frames. He noticed that Brooks had an overbite and crooked teeth. According to White, while he was helping Brooks, Napier waited on another customer, and Brooks might have seen her place a $100 bill into the cash register when that customer paid. Brooks left the store, saying he wanted to ask his grandmother about the picture frame.

Brooks returned to the store 10 or 15 minutes later. White was in the back of the store and Napier was in the restroom. Brooks had changed into coveralls before he returned to the store, White said. White testified that he knew something was going to happen because Brooks had put on coveralls before he returned, but said he could not leave his mother-in-law in the store alone so he waited on Brooks, who said he wanted to buy a picture frame. After White wrote out a receipt for the purchase of a picture frame, Brooks reached into a pocket of the coveralls and pulled out a handgun, which he pointed at White. Brooks told White to give him the money, so White opened the cash register and gave Brooks the cash in the drawer and then closed the register. Brooks pointed the gun at him again and demanded the money from beneath the drawer. White opened the cash register again and gave Brooks the $100 bill Napier had received from the customer who had been in the store when Brooks was first there.

White testified that Brooks then directed him to go to the back of the store. In the meantime Mildred Freeman had returned to the store after making a delivery. Brooks demanded that White give him the money from his wallet and that Freeman give him the money from her purse, and he pointed the gun at them while he demanded their money. After White and Freeman gave their money to Brooks, he ordered them to lie on the floor in the back room. They did as they were instructed, and they prayed, White said. Brooks pointed the gun at them and told them twice not to get up until he told them to do so, then he walked to the front of the shop. Again he told them to stay on the floor. White testified that, as soon as he heard the bell on the front door ring when Brooks exited the front of the store, he got up and called emergency 9-1-1. He saw Brooks pass by the front window as he ran from the store.

White testified that he looked at a lot of photographs from the police department but that he was never able to identify the robber. Then, just as he arrived for his shift at the Kroger grocery store on July 10, 2008, he noticed that the man walking next to him was the man who had robbed him. White observed Brooks as he walked through the store so he could be certain of his identification, and as Brooks exited the store White told a coworker to call 9-1-1. White testified that he was 100% certain that Brooks was the man who had robbed him.

Mildred Freeman testified that she works part-time at Ann’s Flowers and Gifts and that Ann is her sister. She said that on the Saturday of the robbery she returned to the store from making a delivery and she saw someone bent over at the front counter, and she thought someone was looking in a display ease. Then the man came into the back room and pointed a gun in her face. He was wearing baggy coveralls and something on his head. He demanded money, and she said she had none. The robber pointed at her purse in the workroom and told her to get her money for him. She gave him the money, and he told her to lie on the floor. White was already on the floor, she said. The robber told them not to move, and he kept the gun pointed at them. Freeman said she prayed. After the robber left, White got up to call 9-1-1. She asked White where Napier was and he told her that she was in the bathroom.

Freeman testified that she could not say with 100% certainty that Brooks was the man who had robbed her because during the robbery her attention had been focused on the gun that was pointed at her. She testified that she had looked at some photographic lineups and that she had not identified anyone from the photographs. Freeman testified that she had not noticed whether the robber had a beard or a mustache.

Ann Napier testified that she owned Ann’s Flowers and Gifts retail flower shop. She said that before the robbery, she was waiting on a customer when a man came in. She called to White and asked him to wait on the man. After the customer left the store, Napier went to assist White and the man, who was looking for a specific type of picture frame. The man left, stating he needed to ask his grandmother about one of the frames. After he left the store, she went into the restroom; she did not see the man return. Napier testified that she was not aware of the robbery until Freeman came and banged on the bathroom door and told her.

Napier testified that she usually starts a business day with approximately $200 in the cash register.

Napier testified that she looked at photographic lineups at the police department but that she was unable to identify the robber in any of the photographs. She also said that she does not really look at customers as far as noticing their personal appearance; rather, she said, she pays attention to what a customer wants. She could not testify that Brooks was the man she saw in the store on the day of the robbery.

After the State presented the foregoing evidence, Brooks made a motion for a judgment of acquittal and argued only “reasonable doubt.”

Elizabeth Trammell testified that she was cleaning the business located across the street from the flower shop on the morning of the robbery. She glanced up and saw a black man walk into the business, and she saw him walk out again. He waved at her. Trammell testified that she did not notice anything about the man’s appearance, and she did not know whether Brooks was the man she saw that day.

Susan Craven testified that she was working in a cellular-telephone store near Ann’s Flowers and Gifts on the morning of the robbery. She said a black man came into the store and asked to have his telephone service restored, but when she placed a telephone call to assist him, the man became angry, slammed the phone down onto the counter, and walked out. He walked in the direction of the flower shop. Craven could not identify Brooks as the man who was in the store. Craven acknowledged that she had looked at some photographs provided by the police on July 16, 2008. She had identified Brooks and another man from the photographs as possibly being the person who came into the store on the day of the robbery. Craven said that she did not tell the officers that she was certain that the man she waited on was Brooks or the other man whose photograph she had selected.

Zanetta Tywan Hicks testified that she had been involved in a relationship with Brooks on June 28, 2008. She said that Brooks took her to Abbey Shealey’s to have her hair done on that afternoon. Hicks testified that if she told the police that Brooks had taken her Robyn’s to have her hair done that day, that would have been a mistake on her part. Hicks stated that she has serious medical problems and that those problems had affected her memory. Nonetheless, she stated she was certain that, on the day of the robbery, Brooks took her to Shealey’s and then he took her home.

The State cross-examined Hicks about numerous inconsistencies between her statement to the police and her testimony in court and inconsistencies between her testimony and Brooks’s statement to the police. In the statement to the police, she said that Brooks left her early in the morning to go to work and returned in the afternoon and that she did not know where he had been in between. In her in-court testimony, she said that Brooks had taken her to the beauty salon at approximately 9:30 or 10:00 a.m. and picked her up in the early afternoon. The State also presented a statement Hicks provided to the police, along with a calendar she had filled out. The statement included the following: “About two days ago I started this calendar that y’all got to keep Curtis out of jail and to give him an alibi for that Saturday.” (R. 168.) She made a statement to the police and gave the calendar to the police on July 15, 2008, but she acknowledged that the calendar included entries about her health status on July 16, 17, and 18, 2008. Hicks could not account for her ability to make entries on the calendar about her health for the days after she gave the calendar to the police.

Luke Gunnells testified that he owned and operated Southern Sanitary Company in West Point, Georgia, and that Brooks had worked for him until he was arrested on the current charges. Gunnells testified that Brooks had worked with him on the morning of the robbery but that he did not see Brooks later in the day. Gunnells had initially told the police that Brooks had worked with him for the entire day, but he testified that he realized that he had misspoken, and he contacted the police to correct his initial statement. Brooks never wore coveralls when he worked for Gun-nells; he always wore blue jeans, a shirt, and a baseball hat, Gunnells said. Gun-nells testified on cross-examination that he knew Brooks had previously been in prison. Gunnells said they had had long conversations about that and that Brooks had told him he had learned his lesson and he never wanted to go back to prison. Gun-nells stated that he had believed Brooks and that is why he did not believe that Brooks committed the robbery at the flower shop. Gunnells also testified that he was with Brooks beginning at approximately 6:30 a.m. on the day of the robbery, and they had spent a couple of hours together.

Abbey Shealey testified that she is a cosmetologist in West Point, Georgia. Shealey stated that Zanetta Hicks had an appointment to get her hair done on June 28, 2008, and that she was in the salon from approximately 9:00 or 9:30 a.m. until approximately 12:30 or 1:00 p.m. She said a man dropped Hicks off for the appointment, and that Brooks came into her shop to pick up Hicks after the appointment. Shealey said that she was finishing Hicks’s eyebrows, and that Brooks had had to wait a minute or two in the salon.

On cross-examination Shealey testified that Hicks came to the salon for two additional appointments after June 28, 2008, but she could not recall details such as the dates of the subsequent appointments, who brought Hicks to the appointment or picked her up, what vehicle the person was driving, or how long the appointments lasted. Shealey testified that she does not keep up with dates but that Hicks had come to her salon during the summer of 2009 and asked whether Shealey’s records reflected her June 28, 2008, appointment. Shealey then testified on redirect examination that Hicks had “said something about she needed the date because something had supposedly happened on that date that her boyfriend was accused of and she needed to know if I had it down that she was there, that he had brought her.” (R. 213.) The records she had for June 28, 2008, she gave to Hicks, Shealey said on recross-examination. She also said she did not know whether her records reflected the appointments Hicks had with her after June 28.

Malcolm Rowland testified that he was in his van outside Ann’s Flowers and Gifts when the robbery occurred. He did not glance long at the man who, he realized later, had committed the robbery, but he noted that the man who walked into the shop was short and that he was wearing what appeared to be a toboggan-style hat and a dingy shirt. Rowland testified that he viewed a photographic lineup prepared by the police department but that he could not identify Brooks in court as the person whose photograph he had selected. On cross-examination, however, Rowland examined the photographs he had viewed at the police department on July 14, 2008. Rowland testified that he had selected photograph number six as the person he had seen at the flower shop, and photograph number six was identified as Curtis Brooks. Rowland stated that he could not say that the person in court was the same person he had seen at the flower shop because the man’s face had changed since he saw the man two years earlier. Finally, on redirect examination, Rowland testified that when he selected Brooks’s photograph from the photographic lineup, he had indicated on the lineup sheet that he was “60 percent sure” that the eyes were those of the man he had seen at the store, and he said the person in the photograph had the same body style.

Mary Rowland testified that she was in Ann’s Flowers and Gifts shop before the robbery occurred and that she glanced for a few seconds at the man who later robbed the store, who was in the store at the same time she was. She said she had not identified anyone from the photographic lineup the police showed her, and she could not state in court that Brooks was the man she saw that day.

Investigator Caldwell examined cellular-telephone records of calls to and from Brooks’s telephone. He could not discern from the records the time zone that applied to the various calls, but noted that “PDT” was indicated on the records. Caldwell said that he did not know how many hours’ difference there was between the Central time zone and the Pacific time zone. Investigator Caldwell further testified that authorities never determined whether Brooks had the cellular telephone with him during the robbery.

At the conclusion of the evidence Brooks renewed his motion for a judgment of acquittal and again argued, simply, reasonable doubt. The trial court denied the motion. The trial court permitted the defense to reopen the case after Brooks stated that he wanted to testify.

Brooks testified that he had never been to Ann’s Flowers and Gifts shop in Roanoke. He testified that he had gone to work with Gunnells on June 28, 2008, and had waited in the parking lot of a man’s store because he and Gunnells were supposed to pick up some cabinets from the man. They waited for over two hours, Brooks said, but the man did not arrive. Brooks said that his fiancée, Hicks, telephoned him and wanted him to take her to Abbey Shealey’s salon to have her hair done. Gunnells let him go, Brooks said, and he took Hicks to the salon, then spent time traveling in the area and picking up scrap metal. He also stopped at his brother’s house and at his sister’s house, and he visited with them. After noon, Hicks telephoned him and he went to pick her up. She was sitting under the hair dryer when he arrived at the salon, he said.

Brooks said that he did not know Tony White and that he saw him for the first time when White came to the jail. Brooks said he did not own a pair of coveralls and that he had never owned coveralls. He also said that he had never owned or worn a toboggan-style hat. He denied committing the robbery and said he was certain that he had been picking up scrap metal on June 28.

On cross-examination Brooks acknowledged that in the statement he made to the police on July 10, 2008, he said he had spent June 28, 2008, working at Gunnells’s camp in Dadeville, and that he had left there at approximately 3:00 p.m. He said he had never been to the flower shop, and that the people who had identified him as the person in the flower shop were mistaken. He acknowledged that he had told the investigators that he would do anything not to have to go back to prison. He testified that he had spent 18 years in prison for robbery. Brooks said he had been convicted of theft of property and receiving stolen property but that he did not know how many felonies he had committed.

Also on cross-examination Brooks said that, although Shealey had testified that he had had to wait only a minute or two for her to finish Hicks’s eyebrows, he was sure Hicks was sitting under the hair dryer when he arrived and that he had to wait 15 minutes for her.

The trial court charged the jury on, and the jury found Brooks guilty of, three counts of robbery, as charged in the indictment. Immediately after the trial court adjudged Brooks guilty of the three counts of robbery the State invoked the provisions of the Habitual Felony Offender Act, § 13A-5-9, Ala.Code 1975. The trial court held a sentencing hearing and the State presented certified copies of four prior felony convictions of Brooks’s. Defense counsel acknowledged that Brooks had some prior Class C felonies and one Class B felony. Brooks was on parole following 18 years’ imprisonment on a charge of second-degree robbery, which the prosecutor alleged, started out as a charge of first-degree robbery; Brooks pled guilty to the reduced charge, the prosecutor stated. The trial court sentenced Brooks to 85 years’ imprisonment.

I.

Brooks argues that the trial ’court erred when it denied the motion for a new trial because, he says, the jury ignored the great weight of the evidence by disregarding the alibi testimony and the inability of “numerous witnesses” to identify him. He argues that, after allowing all reasonable presumptions of correctness, the “verdict is unjust and so against the weight of the evidence” that the case must be remanded for a new trial. (Brooks’ brief, at pp. 7-8.) Brooks argues that eyewitness testimony is unreliable and fallible. He also argues:

“One positive eyewitness, five witnesses who were unsure or could offer no identification at all, and no forensic evidence tied Brooks to the scene. Yet the jury chose to ignore all exculpatory evidence and concentrate on one witness alone. This Court should remand this case to the trial court because Brooks’ jury was unreasonable and ignored the great weight of the evidence.”

(Brooks’ brief, at p. 22.)

Brooks also argues that the cellular-telephone records proved that he was not in Roanoke at the time of the robbery.

The State argues that because the prosecutor presented a prima facie case at trial, the factual questions and credibility of the witnesses were matters for the jury to decide and that the jury’s verdict is conclusive on appeal. The State contends that caselaw establishes that a jury’s verdict should be set aside only when that verdict is contrary to the great weight of the evidence and palpably wrong or unjust and that the jury’s verdicts here are supported by the evidence. Therefore, the State concludes, the trial court did not err when it denied the motion for a new trial. We agree with the State.

“With respect to the weight of the evidence, it is well-settled that any ‘inconsistencies and contradictions in the State’s evidence, as well as [any] conflict between the State’s evidence and that offered by the appellant, [go] to the weight of the evidence and [create a question] of fact to be resolved by the jury.’ Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). ‘ “ ‘[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” ’ Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). ‘We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.’ Johnson, 555 So.2d at 820. ‘ “When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.” ’ Rowell, 647 So.2d at 69, quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982). Furthermore, ‘ “[t]his Court must view the evidence in the light most favorable to the State, and ‘draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact.’ ” ’ D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993), quoting Woodberry v. State, 497 So.2d 587, 590 (Ala.Crim.App.1986). ‘Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case.’ Jones v. State, 719 So.2d [249] at 255 [(Ala.Crim.App.1996) ].”

Williams v. State, 10 So.3d 1083, 1087 (Ala.Crim.App.2008).

The State correctly notes that Brooks does not challenge the sufficiency of the evidence or otherwise allege that the State failed to present a prima facie case of robbery. In fact, the State presented evidence to show that Brooks held the two employees at gunpoint while he took the money from the cash register and from each employee, thus establishing the elements of robbery. It is apparent that the jury chose to believe the State’s witnesses, and particularly White’s identification of Brooks as the robber, and that it chose not to believe the testimony and arguments presented by the defense. The witnesses for the State and the defense were subjected to thorough cross-examination, and the parties had the opportunity to argue the relative strengths and weaknesses of the evidence. The veracity of the witnesses and the credibility of the evidence were properly left for the jury to determine, and the trial court did not abuse its discretion when it declined to disturb the jury’s verdict.

Brooks argues that the jury should not have believed the State’s evidence, however, and that

“[t]his Court, then, must apply its own subjective beliefs and experience when deciding this appeal. Doing so requires this Court to overturn the conviction rendered by an unreasonable jury that ignored the greater weight of the evidence and improperly relied on insufficient evidence to find Brooks guilty.”

(Brooks’s reply brief, at pp. 4-5.)

Brooks’s argument is directly contrary to Alabama law, which has consistently held that it is not the province of this Court to reweigh the evidence presented at trial. There is no dispute that the State presented a prima facie case of robbery, and this Court will not review the weight of the evidence or the credibility of the witnesses.

Brooks is not entitled to relief on this claim of error.

II.

Although we have determined that Brooks is not entitled to relief on the claim he raised on appeal, this Court has a duty to notice jurisdictional defects. Williams v. State, 10 So.3d 1083 (Ala.Crim.App.2008). This case presents two such defects.

A. Brooks was erroneously charged in count 3 of the indictment with robbery for the theft of currency belonging to the flower shop and was convicted of that offense. However, robbery is an offense against the person; the victim of a robbery is the person against whom force is used or threatened, even when the property taken belongs to a business. See, e.g., Abrams v. State, 978 So.2d 794 (Ala.Crim.App.2006), and cases cited therein. Count 1 charged Brooks with theft of currency belonging to Mildred Freeman, while using or threatening to use force against Freeman or another person while being armed with a pistol; count 2 charged Brooks with theft of currency belonging to Tony White, while using or threatening to use force against White or another person while being armed with a pistol; count 3 charged Brooks with theft of currency belonging to Ann’s Flowers and Gifts, while using or threatening to use force against White and/or Freeman or another person while being armed with a pistol. The State cannot convert a single theft of various items of property from one victim into separate offenses because to do so violates the prohibition against double jeopardy; the unit of prosecution is the act of violence against the person. Craig v. State, 893 So.2d 1250 (Ala.Crim.App.2004) (the fact that the defendant took property from both the clerk and from the dry-cleaning business did not create two separate robbery offenses). Therefore, although Brooks took money belonging to Ann’s Flowers and Gifts, he threatened the use of force against Tony White when he did so. That Brooks also took money from White’s wallet while he threatened the use of force against White did not create a separate incident of robbery. Brooks was twice placed in jeopardy by being indicted for and convicted of those two charges, when he committed only one crime involving White. Therefore, as to the conviction for count 3, we remand this case for the trial court to vacate the conviction.

Count 1 charged the robbery of Mildred Freeman and is a separate crime involving a separate victim; that indictment and conviction do not violate double-jeopardy principles. Count 1 and count 2 were proper charges, and the judgments of conviction on those counts will remain.

B. We must also remand this cause for clarification of the sentence imposed by the trial court. Although Brooks states in his brief that the trial court imposed three concurrent terms of 85 years’ imprisonment, our review of the transcript of the sentence hearing and of the trial court’s sentencing order fails to support that statement. Rather, the trial court appears to have imposed only a general sentence of 85 years’ imprisonment. Accordingly, this case is remanded to the trial court with directions that the trial court: (1) clarify whether it intended to impose the 85-year sentence for each conviction, and, if the sentence was imposed as to only one count, the court must hold a new sentencing hearing and impose a sentence for the second conviction that properly remains; and (2) indicate whether the sentences are to run concurrently or consecutively.

For the foregoing reasons, the judgment as to Brooks’s convictions for the offenses charged in count 1 and count 2 of the indictment is affirmed. However, we remand the cause for the trial court to set aside the judgment of conviction as to that count. On remand, the trial court is further ordered to clarify the sentence imposed as to counts 1 and 2, as directed above. The trial court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 28 days after the release of this opinion. The remand shall include a transcript of the new sentencing hearing, if one is required.

AFFIRMED IN PART; REMANDED WITH INSTRUCTIONS.

WINDOM, KELLUM, BURKE, and JOINER, JJ., concur.

      . The trial court sentenced Brooks pursuant to the voluntary sentencing standards. § 12-25-31 etseq., Ala.Code 1975.

      . The witness’s name is spelled both "Robyn” and "Robin” in the transcript.

       Note from the reporter of decisions: On July 15, 2011, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Charlie STITH v. STATE of Alabama.
    CR-09-0754.
    Court of Criminal Appeals of Alabama.
    April 29, 2011.
    Rehearing Denied July 15, 2011.
    Charlie Stith, pro se.
    Troy King and Luther Strange, attys. gen., and John J. Davis, asst. atty. gen., for appellee.
   On Return to Remand

WELCH, Presiding Judge.

Charlie Stith appeals from the circuit court’s summary dismissal of what appears to be his first Rule 32, Ala. R.Crim. P., petition for postconviction relief challenging his October 10, 2008, guilty plea and concomitant conviction for first-degree sodomy, a violation of § 13A-6-63, Ala. Code 1975, which is a Class A felony, and his sentence of imprisonment for 10 years. Stith did not file a direct appeal. Stith’s Rule 32 petition was deemed filed on September 14, 2009.

In his petition, Stith claimed that his trial counsel was ineffective in rendering advice regarding the collateral effects of a guilty plea in the following respects:

(A) Stith’s counsel failed to inform him that he would not be eligible for “good time” with regard to his prison sentence because first-degree sodomy is a Class A felony and Ala.Code 1975, § 14-9-41, provides that offenders convicted of a Class A felony are not eligible for correctional incentive time (“good time”).

(B) Stith’s counsel failed to advise Stith that an offer from the State to plead guilty to first-degree sodomy, a Class A felony, wherein Stith would receive a 20-year prison sentence, split to serve 5 years, would result in Stith’s serving less time in prison than under a “straight” 10-year sentence, because good time could not be earned for a Class A felony. Specifically, Stith alleged that, “if [Stith] would have really understood that when he plead[ed] guilty ... he was going to prison for ten (10) years without good time and/or parole[, Stith] would not have agreed to plead guilty.” (C. 12.)

(C) Stith’s counsel allowed Stith to plead guilty when Stith’s competence was questionable and Stith’s counsel was concerned about Stith’s “rage” issues. (C. 9-12.) This claim was not pursued in his brief on appeal; therefore, it is deemed abandoned and will not be considered. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995).

The circuit court denied the petition, stating on the case-action summary: “PETITION DENIED SEE STATE’S RESPONSE.” (C. 3.)

We determined that the allegations in Stith’s petition could be meritorious, see Patterson v. State, 879 So.2d 1208, 1210 (Ala.Crim.App.2003), and Holt v. State, 905 So.2d 857, 858 (Ala.Crim.App.2004), and remanded this case to the circuit court for that court to make specific, written findings of fact concerning Stith’s ineffeetive-assistance-of-counsel allegations. The circuit court has complied with our remand order, so we proceed to address the merits of Stith’s appeal.

To prevail on a claim of ineffective assistance of counsel, a petitioner must ultimately prove that counsel’s performance was deficient and that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of the guilty-plea process, we have held:

“When an appellant’s claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant’s establishing ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ”

Culver v. State, 549 So.2d 568, 572 (Ala.Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

In his postconviction petition, Stith asserted that, but for the erroneous advice of counsel, he would not have pleaded guilty in order to receive a 10-year sentence.

Section 14-9-41, Ala.Code 1975, entitled “Computation of incentive time deductions,” provides in pertinent part:

“(a) Each prisoner who shall hereafter be convicted of any offense against the laws of the State of Alabama and is confined, in execution of the judgment or sentence upon any conviction, in the penitentiary or at hard labor for the county or in any municipal jail for a definite or indeterminate term, other than for life, whose record of conduct shows that he has faithfully observed the rules for a period of time to be specified by this article may be entitled to earn a deduction from the term of his sentence as follows:
“(e) Provided, however, no person may receive the benefits of correctional incentive time if he or she has been convicted of a Class A felony or has been sentenced to life, or death, or who has received a sentence for more than 15 years in the state penitentiary or in the county jail at hard labor or in any municipal jail. No person may receive the benefits of correctional incentive time if he or she has been convicted of a criminal sex offense involving a child as defined in Section 15 — 20—21 (5)[, Ala.Code 1975]. No person may be placed in Class I if he or she has been convicted of an assault where the victims of such assault suffered the permanent loss or use or permanent partial loss or use of any bodily organ or appendage. No person may be placed in Class I if he or she has been convicted of a crime involving the perpetration of sexual abuse upon the person of a child under the age of 17 years.
“The court sentencing a person shall note upon the transcript to accompany such prisoner the fact that he or she has been sentenced as a result of a crime that forbids his or her being classified as a Class I prisoner.”

(Emphasis supplied.)

The affidavit of trial counsel stated:

“11. On October 10, 2008, Mr. Stith was again before the Court and the District Attorney made a plea offer of 20 years split to serve 5 years. As Mr. Stith’s attorney I had a duty and obligation to make him aware of the plea agreement offer.
“12. Upon advising Mr. Stith of the offer of 20 years split to serve 5 years, he declined but stated that he would enter into a plea agreement for 10 years because with that sentence he would be entitled to ‘good’ time. The ramifications of entering into the plea were explained in detail to him.
“13. The District Attorney was made aware of Mr. Stith’s decision to enter a plea for a recommended sentence of 10 years and the District Attorney accepted the plea offer. On October 10, 2008, Mr. Stith entered a plea of guilty to the charge of Sodomy 1st and the prosecutor recommended a sentence of 10 years.
“14. At no time was Mr. Stith told by me that he would receive good time although he did ask me about good time. I told him, as I tell each and every defendant, that I cannot and do not calculate or attempt to advise clients regarding the State’s rules and regulations pertaining to an inmate earning good-time. In fact, I carefully made sure that he understood that no one, except for the DepaHment of Corrections, calculate [sic] or make a determination regarding good time credit to be applied against a sentence that had been imposed.”

(SR. 13-14.) (Emphasis added.)

The circuit court reviewed the affidavit of trial counsel and found:

“After review of [Stith’s] claims and the affidavit of trial counsel attached; the Court makes the following findings of fact:
“1. [Stith] entered a guilty plea to first-degree sodomy on October 10, 2009.
“2. [Stith] agreed to a straight ten-year sentence after rejecting a twenty split five sentence which was offered by the District Attorney.
“3. [Stith] was represented by one of the Circuit’s most experienced and well qualified attorneys....
“4. [Stith] was advised as to the possible range of sentence for a Class A felony.
“5. [Stith] acknowledged on the record that he understood his constitutional rights and that he understandingly and voluntarily pleaded guilty and waived his rights.
“6. Trial Counsel fully advised [Stith] as to his rights and choices. “7. At no time did Trial Counsel advise [Stith] that be would receive ‘good time.’
“This Court finds that no material issue of law or fact exists that would entitle [Stith] to relief under Rule 32, and that no purpose would be served by any further proceedings.
“[Stith’s] petition is without merit.
“The petition is DENIED.”

(S.R. 11-12.)

In Fearson v. State, 662 So.2d 1225 (Ala.Crim.App.1995), this court held that it was not incumbent upon the trial court to explain to the defendant, who intended to plead guilty, that, as a Class A felon, he would be ineligible to earn correctional incentive time (“CIT”), also referred to as good time.

“Fearson asserts on appeal that his pleas were not intelligent, knowing, and voluntary because, he says, neither his attorney nor the trial court advised him that, because first degree robbery is a Class A felony, he would be ineligible to earn correctional incentive time (‘CIT’) under Code of Alabama 1975, § 14-9-41(e). Fearson presented this issue in a motion to withdraw his guilty pleas, which was denied by operation of law. This issue does not involve any misrepresentation or erroneous advice allegedly inducing the defendant into pleading guilty.
“ ‘An accused is entitled to information concerning the direct consequences of his plea. He is not entitled to information concerning all collateral effects, or future contingencies that might arise.’ Minnifield v. State, 439 So.2d 190, 192 (Ala.Cr.App.1983). We do not consider that ineligibility to earn CIT is a direct consequence of a guilty plea as to which a defendant must be advised before entering a plea. See Johnson v. Puckett, 930 F.2d 445, 448 n. 2 (5th Cir.), cert. denied, 502 U.S. 890, 112 S.Ct. 252, 116 L.Ed.2d 206 (1991) (the court noted that the effect of a defendant’s guilty plea on good time credits is a collateral consequence of which the defendant need not be advised); Johnson v. Dees, 581 F.2d 1166, 1167 (5th Cir.1978) (the court held that the trial court’s failure to inform the defendant that he could be denied good time credits as a serious multiple offender did not preclude the entry of a voluntary and intelligent plea because such matter is a collateral consequence).
“ ‘The mere hope, subjective belief, or expectation of a defendant regarding length of sentence, parole, conditions of confinement, and other similar matters which are not based upon a promise by the state are insufficient to warrant the [setting aside of a plea of guilt.] State v. Holman, 486 So.2d 500 (Ala.1986); Tiner v. State, 421 So.2d 1369 (Ala.Cr.App.1982). The same is true where the defendant claims that his hope and expectation is based upon consultation with his counsel. Norman v. McCotter, 765 F.2d 504 (5th Cir.1985); Johnson v. Lockhart, 746 F.2d 1367 (8th Cir.1984) (wherein the defendant was not allowed to withdraw guilty plea even though his counsel misinformed him about his parole eligibility, when there was no evidence that counsel promised defendant that he would be paroled); Greathouse v. United States, 548 F.2d 225 (8th Cir.1977), cert. denied, 434 U.S. 838, 98 S.Ct. 130, 54 L.Ed.2d 100 (1977) (wherein the defendant was not allowed to withdraw his guilty plea even though his counsel incorrectly informed him that, if he pleaded guilty, the federal court could order his state and federal sentences to run concurrently).’
“Culver v. State, 549 So.2d 568, 571 (Ala.Cr.App.1989). See also Oyekoya v. State, 558 So.2d 990, 990 (Ala.Cr.App.1989) (quoting United States v. Campbell, 778 F.2d 764, 768 (11th Cir.1985)) (‘counsel’s failure to advise the defendant of the collateral consequences of a guilty plea ... cannot rise to the level of constitutionally ineffective assistance’).”

Fearson v. State, 662 So.2d at 1226.

In Fearson we noted that a Class A felon’s ineligibility to earn CIT was a collateral consequence to a guilty plea.

In Patterson v. State, 879 So.2d 1208 (Ala.Crim.App.2003), we characterized counsel’s failure in Fearson to advise Fearson that a Class A felon could not accrue CIT as an omission and not as an active misrepresentation. We held that a misrepresentation, as opposed to an omission, i.e., a failure to advise, regarding a collateral consequence, would entitle Patterson to relief, and, thus, we remanded the case to the circuit court for further proceedings.

“As the State correctly notes in its brief on appeal, counsel’s failure to advise a defendant that he was ‘not’ eligible to earn IGT [correctional incentive time] credit while he was incarcerated does not constitute ineffective assistance of counsel nor does it render a guilty plea involuntary. Fearson v. State, 662 So.2d 1225 (Ala.Crim.App.1995). Moreover, the Court found that Patterson was advised of the correct sentencing range for the crime of first-degree burglary before he entered his guilty plea. Accordingly, he is not entitled to relief on his claim that his guilty plea was not knowingly and voluntarily entered.
“However, Patterson contends that trial counsel told him that he would receive IGT credit if he pleaded guilty to this offense. It is unclear from the record whether counsel did in fact so misinform Patterson regarding his eligibility for IGT credit. This Court must remand this matter to the circuit court for a determination as to this issue, and the State has requested that we do so.”

879 So.2d at 1210.

Since Fearson was decided, the United States Supreme Court in Padilla v. Kentucky, 559 U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), has narrowed the distinction between a collateral consequence and a direct consequence when reviewing counsel’s performance, holding that when an alien was not advised that a felony conviction could result in his being deported, the collateral consequence of pleading guilty — i.e., possible deportation — was so severe that the failure or omission to advise the defendant pleading guilty about the consequence was ineffective assistance of counsel.

“Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.’ McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 768 (1970); Strickland v. Washington, 466 U.S. [668], at 686, 104 S.Ct. 2052 [ (1984) ]. The Supreme Court of Kentucky rejected Padilla’s ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, ie., those matters not within the sentencing au-_ thority of the state trial court. [Commonwealth of Kentucky v. Padilla,] 258 S.W.3d [482], at 483-484 [(Ky.2008)] (citing Commonwealth v. Fuartado, 170 S.W.3d 384 (2005)). In its view, ‘collateral consequences are outside the scope of representation required by the Sixth Amendment,’ and, therefore, the ‘failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.’ 253 S.W.3d, at 483. The Kentucky high court is far from alone in this view.
“We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U.S., at 689, 104 S.Ct. 2052. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.”

Padilla v. Kentucky, 559 U.S. at -, 130 S.Ct. at 1481 (footnotes omitted).

In Ex parte Coleman, 71 So.3d 627 (Ala.2010), the Alabama Supreme Court held that a Rule 32 petitioner stated a claim sufficient to require an evidentiary hearing when the petitioner was misinformed about his eligibility for work release and parole.

“Coleman contends that his decision to plead guilty to the four offenses ‘was based solely upon counsel’s representations of parole and work-release eligibility’ and that, had he known that he was actually ineligible for parole and work release because of the nature of the offenses, he would not have pleaded guilty but, instead, ‘would have insisted on proceeding to trial.’ Coleman’s brief, p. 10....
“Coleman has alleged facts that, if true, would entitle him to relief. As noted, Coleman alleged in the Rule 32 petition that, but for his attorney’s misrepresentations concerning Coleman’s eligibility for parole and work release, he would not have pleaded guilty but, instead, would have insisted on going to trial. See Winbush [v. State, 18 So.3d 423 (Ala.Crim.App.2009) ] (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). Furthermore, in his affidavit, Coleman alleged ‘special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.’ See Hill, 474 U.S. at 60. Specifically, Coleman alleged that he had no reason to plead guilty to a 20-year sentence without the possibility of parole or work release because, Coleman said, ‘at my age of 63, a 20 year sentence is a life sentence.’ Therefore, if the allegations of Coleman’s petition are taken as true, Coleman placed ‘particular emphasis’ on his attorney’s statements regarding his eligibility for parole and work release in deciding to accept the plea agreement.”

Ex parte Coleman, 71 So.3d at 632-33 (emphasis added).

Likewise, in Winbush v. State, 18 So.3d 423, 423-24 (Ala.Crim.App.2009), Winbush asserted in a postconviction petition that bis counsel was ineffective because counsel had erroneously informed him that if he pleaded guilty he would receive “good-time credit.” Winbush alleged that as a result of the information provided by his counsel, he pleaded guilty. We held that counsel’s erroneous advice regarding Winbush’s eligibility for good-time credit was a viable basis for a claim of ineffective assistance of counsel. The case was remanded for a determination on the truth of the claim.

In this case, Stith was presented with a plea agreement that provided that if he pleaded guilty he would receive a 20-year sentence, split to serve 5 years, day for day. He rejected that agreement and requested that his counsel negotiate a different plea agreement that provided that if he pleaded guilty he would receive a 10-year “straight” sentence, telling counsel that his reason for doing so was that he would earn good time (i.e., CIT), and, thus, presumptively, serve less than 5 years in prison. It is clear that Stith placed “particular emphasis” on his eligibility to earn CIT in deciding whether or not to plead guilty.

Stith’s counsel did not advise him that good time (i.e., CIT) was not available for a Class A felony. However, a simple reading of the applicable statute, § 14-íMl, Ala.Code 1975, would have informed counsel that incentive time deductions are not available for an inmate convicted of a Class A felony. Counsel asserted in his affidavit:

“In fact, I carefully made sure that he understood that no one, except for the Department of Corrections, calculate [sic] or make a determination regarding good time credit to be applied against a sentence that had been imposed.”

(SR. 14.)

Although counsel was apparently unaware of the legal effect of § 14-9-41, Ala.Code 1975, and did not represent to Stith that he could earn CIT, the advice given to Stith was incorrect and amounted to a misrepresentation regarding the law. Merely reading the statute would have enabled counsel to properly advise Stith that he could not receive incentive time deductions for a Class A felony. It is axiomatic that the reason why counsel is appointed is to advise a client about the law. The effect of a sentence is one of the most important matters about which a criminal-defense lawyer should be cognizant. “[E]very lawyer engaged in defending criminal cases knows that often a finding of guilt is a foregone conclusion, and that the real issue centers about the severity of the punishment.” Smith v. United States, 223 F.2d 750, 754 (5th Cir.1955). The fact that Stith, being ignorant of the law, instigated a renegotiation of his plea that effectively doubled the duration of his imprisonment is not a factor that prevents him from pleading or prevailing on a claim of ineffective assistance of counsel.

Whether denominated as an omission or a misrepresentation, counsel failed to advise Stith that if he accepted the plea agreement that called for a 10-year straight sentence the result would be that Stith would have to serve the full 10 years’ imprisonment. Stith’s counsel did not provide effective assistance of counsel when he incorrectly advised Stith that “no one, except for the Department of Corrections, [may] calculate or make a determination regarding good time credit.” Stith was allowed to make a decision that added 5 years to the amount of time he would serve due to counsel’s failure to advise him that good time credit (i.e., CIT) was not available.

It is true that the Department of Corrections calculates deductions from sentences pursuant to their regulations (some of which are restricted and unavailable to the public, e.g., Regulation 427, Alabama Department of Corrections). Those calculations are based on, among other considerations, how a classification official views the circumstances of the offense and an inmate’s prior criminal history. To some extent those determinations cannot be accurately predicted. Therefore, counsel is not required to advise every defendant pleading guilty regarding the incentive time deductions available for a sentence offered pursuant to a plea agreement. However, when a defendant has expressed to his or her counsel that the availability of good-time or incentive credit is a substantial material factor, i.e., the defendant places “particular emphasis” on the availability of CIT in his or her decision to accept or reject a plea agreement, counsel must correctly advise the defendant of any statutory prohibitions that exist that would prevent the defendant from earning CIT deductions. Failure to do so was, in the particular circumstances presented in this case, ineffective assistance of counsel.

Thus, Stith proved that his counsel was ineffective and that he was prejudiced as a result, because he would not have pleaded guilty relying on a plea agreement that provided for a 10-year straight sentence. For the foregoing reasons, we reverse the judgment of the circuit court and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, KELLUM, and JOINER, JJ., concur. BURKE, J., concurs in the result.

       Note from the reporter of decisions: On July 15, 2010, the Court of Criminal Appeals remanded this case by order.

      . The supplemental record furnished on return to remand is designated as S.R.


author:
LAGOA, J.
      SCHWARTZ, Senior Judge

text:
    STOCK BUILDING SUPPLY OF FLORIDA, INC., d/b/a K & A Lumber Company, Appellant, v. SOARES DA COSTA CONSTRUCTION SERVICES, LLC, and Westchester Fire Insurance Company, Appellees.
    No. 3D10-928.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2011.
    Rehearing Denied Jan. 3, 2012.

      Siegfried Rivera Lerner De La Torre & Sobel and Steven M. Siegfried and H. Terry McConnnell and Nicholas D. Siegfried, Coral Gables, for appellant.
    Smith, Currie & Hancock and F. Alan Cummings and Christopher R. Conley, Tallahassee, for appellee Soares Da Costa Construction Services, LLC; Etcheverry Harrison and Guy W. Harrison and Edward Etcheverry, Ft. Lauderdale, for ap-pellee Westchester Fire Insurance Company.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Stock Building Supply of Florida, Inc., d/b/a K & A Lumber Company (“K & A”) appeals a final judgment in favor of defendants Soares Da Costa Construction Services, LLC (“Soares Da Costa”) and Westchester Fire Insurance Company (“Westchester Fire”) following a nonjury trial. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 4, 2005, Soares Da Costa entered into a direct contract with Panterra Development (“Owner”) to construct a mixed-use condominium located in Miami, Florida (“Project”). Soares Da Costa served as general contractor on the Project and it awarded the subcontract for construction of the building’s structural shell to Contract Management Services, Inc. (“Contract Management”). At the time, Contract Management was a member of Soares Da Costa, and held a 40% ownership interest in the company. Contract Management entered into an agreement with K & A in July 2005 to purchase the rebar materials necessary to construct the building’s structural shell. On August 15, 2005, the Owner recorded a Notice of Commencement pursuant to section 713.18, Florida Statutes (2004). The Notice acknowledged that no payment bond had been provided for the Project.

On August 22, 2005, K & A began delivering rebar materials to the Project under the order of Contract Management. K & A also delivered other miscellaneous building materials to the Project under a separate order made by Soares Da Costa. Subsequently, on September 12, 2005, K & A served Soares Da Costa with a Notice to Owner/Notice to Contractor pursuant to sections 713.06 and 713.23, Florida Statutes, stating that it was delivering rebar materials to the Project under an order given by Contract Management (“First Notice”). On that same day, K & A also served a joint Notice to Owner/Notice to Contractor on Soares Da Costa for the miscellaneous building materials it delivered to the Project under Soares Da Cos-ta’s order.

Due to the lack of funding, construction on the Project ceased from January 2006 through the end of March 2006. On January 26, 2006, K & A recorded two claims of lien, one for materials billed to Contract Management in the total amount of $174,782.84, and one for materials billed to Soares Da Costa in the total amount of $3,155.56. All liens on the Project, including K & A’s liens, were satisfied by the Owner in March 2006. Accordingly, on March 23, 2006, K & A recorded a Satisfaction and Waiver and Release of Lien on Final Payment for each of its claims of lien.

On March 28, 2006, the Owner recorded both a Notice of Termination of the August 15, 2005 Notice of Commencement, pursuant to section 713.132, Florida Statutes (2005), and a new Notice of Commencement. The Notice of Termination included a statement by the Owner that all lienors had been paid in full. The new Notice of Commencement acknowledged that the Project now had a payment bond pursuant to section 713.23, and identified Westchester Fire as the surety providing the payment bond. A copy of the bond was also attached to the Notice of Commencement.

Under the order of Contract Management, K & A recommenced supplying re-bar to the Project on April 24, 2006. It also furnished miscellaneous building materials to the Project under the order of Soares Da Costa. K & A served Soares Da Costa with a Notice to Owner/Notice to Contractor on May 10, 2006 (“Second Notice”) that stated only that K & A was furnishing building materials to the Project under an order given by Soares Da Costa. Significantly, and unlike its previous action in September 2005, K & A did not serve Soares Da Costa with a Notice to Owner/Notice to Contractor concerning the rebar materials it furnished to the Project under the order of Contract Management. Although Soares Da Costa paid Contract Management in full for all of the rebar material pursuant to their contract, Contract Management did not, in turn, pay K & A in full for the rebar materials it supplied to the Project. Consequently, K & A duly transmitted a Notice of Nonpayment to Soares Da Costa and Westchester Fire in accordance with section 718.23(l)(d), Florida Statutes (2005).

K & A subsequently filed suit against Contract Management, Soares Da Costa and Westchester Fire on the payment bond, asserting causes of action for breach of contract, open accounts, and accounts stated. Following the bench trial, the court found that K & A and Soares Da Costa were not in privity, and K & A therefore had to serve notice on Soares Da Costa pursuant to section 713.23(l)(c). The trial court held that K & A was not entitled to recover against Soares Da Costa or West-chester Fire because it failed to serve the proper notice, thus barring its claim against Soares Da Costa and Westchester Fire on the section 713.23 payment bond. However, the trial court concluded that K & A was entitled to recover on its claim against Contract Management in the full amount of $269,475.63, and entered final judgment accordingly. This appeal ensued.

II. STANDARD OF REVIEW

K & A does not challenge the trial court’s factual findings but rather, the application of those facts to Florida’s Construction Lien Law. Accordingly, the standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”); B.Y. v. Dep’t of Children and Families, 887 So.2d 1253, 1255 (Fla.2004) (“The standard of appellate review on issues involving the interpretation of statutes is de novo.”).

III. ANALYSIS

K & A raises several issues on appeal, only one of which merits discussion: whether the Notices to Contractor sent by K & A were sufficient to satisfy the requirements of section 713.23.

K & A contends that the First Notice was sufficient to satisfy the requirements of section 713.23(l)(c) for all of the rebar materials it supplied and that the trial court erred in concluding that K & A should have served Soares Da Costa with a new Notice to Contractor for the rebar materials it supplied to the Project when the Project recommenced in April of 2006. Alternatively, K & A argues that the Second Notice was sufficient to satisfy the requirements of section 713.23(l)(c) for purposes of the rebar material supplied after the Project recommenced. We address each argument in turn.

A. First Notice

i. The First Notice Created a Lien Governed by Section 713.06, not Section 713.23.

Construction liens are purely creatures of statute and must be strictly construed. Aetna Cas. & Sur. Co. v. Buck, 594 So.2d 280, 281 (Fla.1992). Where a contractor does not have a statutory bond in place, section 713.06, Florida Statutes (2004), provides that a materialman, laborer or subcontractor who is not in privity with the owner may acquire a lien on the real property improved for any money that is owed to him or her for labor, services, or materials furnished in accordance with his or her contract and with the direct contract. See § 713.06(1), Fla. Stat. As a prerequisite to perfecting a lien under section 718.06 and recording a claim of lien, all lienors must serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. See § 713.06(2)(a), Fla. Stat. “The notice must be served before commencing, or not later than 45 days after commencing, to furnish his or her labor, services, or materials.” Id.

Existence of a section 713.23 payment bond exempts the owner’s real property from liens. Where a contractor has a payment bond, a lienor not in privity with a contractor must serve the contractor with notice in writing either before beginning, or within 45 days of beginning to furnish labor, materials, or supplies, that the lienor will look to the contractor’s bond for protection on the work. § 713.23(l)(c), Fla. Stat. (2005) ‘.Asa condition precedent to an action against a contractor or surety on a section 713.23 payment bond, all material suppliers who are not in privity with the contractor must serve such a notice on the contractor. See § 713.23(l)(e), Fla. Stat. (2005).

An owner must record a notice of commencement before initiating improvements to any real property, whether or not the project has a payment bond in compliance with section 713.23. See § 713.13(l)(a), Fla. Stat. (2005). A certified copy of the notice of commencement or a notarized statement that the notice of commencement has been filed for recording along with a copy thereof must also be posted on the job site. Id. The Second District has described the purposes served by a notice of commencement as follows:

Though the Notice of Commencement was originally required to trigger a commencement date from which to measure time limitations under the [Construction] Lien Law, the information contained in the Notice of Commencement provides all the details necessary to complete a Notice to Owner. Indeed, Section 713.13(l)(a), Florida Statutes, requires with Notice of Commencement information including the name and address of the owner and contractor. Thus, the legislature contemplated that the Notice of Commencement would provide the lienor with the current names and addresses of the owner and contractor, so that the lienor could properly mail the Notice to Owner.

Design Aluminum, Inc. v. DeSanti, 521 So.2d 285, 287 (Fla. 2d DCA 1988) (quoting Symons Corp. v. Tartan-Lavers Delray Beach, Inc., 456 So.2d 1254, 1259 (Fla. 4th DCA 1984)).

In addition, a notice of commencement serves to determine the priority of liens under the Construction Lien Law. See § 713.07, Fla. Stat. (2005). Liens arising under sections 713.05 and 713.06, Florida Statutes, attach and take priority as of the date the notice of commencement is recorded. § 713.07(2), Fla. Stat. A notice of commencement may be terminated only after completion of construction, or if construction ceases before completion, after all lienors have been paid in full or pro rata in accordance with section 713.06(4), Florida Statutes. See § 713.132(1), (3), Fla. Stat. (2005). If a notice of termination of a notice of commencement is recorded as a result of the cessation of construction, a new notice of commencement must be recorded before completion of the improvement may be recommenced. See § 713.13(l)(a), Fla. Stat. (2005).

In the instant case, the Project did not have a section 713.28 payment bond when it began in August 2005. A statutory payment bond only secures liens that accrue subsequent to its execution and delivery. See § 713.23(2), Fla. Stat. (2005). “As to those who seek payment for work done prior to the filing of [a statutory payment] bond, the bond does not exempt the project from the liens of such persons. The project, for those lienors, is essentially unbonded.” Profl Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 940 So.2d 444, 447 (Fla. 5th DCA 2006). Section 713.23(l)(c) was, therefore, inapplicable to the First Notice, and the First Notice could only serve to perfect K & A’s lien against the Owner and Soares Da Costa pursuant to section 713.06(1), not to satisfy conditions precedent to recovery under a section 713.23 payment bond.

ii. K & A’s Release of Its Lien Created by the First Notice

Furthermore, the lien perfected by K & A’s First Notice was satisfied prior to the recommencement of the Project. After construction on the Project ceased, K & A recorded a claim of lien for the rebar materials it billed to Contract Management in the total amount of $174,782.84. This lien was satisfied by the Owner in March of 2006 and K & A executed a Satisfaction and Waiver and Release of Lien on Final Payment. The Waiver and Release of Lien executed by K & A was identical to the form provided in section 713.20(5), Florida Statutes (2005), for execution by lienors upon final payment of a lien. It stated in pertinent part:

The undersigned lienor, in consideration of the final payment in the amount of $174,782.84 hereby waives and releases its lien and right to claim a lien for labor, services, or materials furnished to CONTRACT MANAGEMENT SERVICES, INC., a Florida general partnership, on the job of PANTERRA DEVELOPMENTS, a Florida general partnership, to the following described property: City 24, 2347 N. Biseayne Boulevard, Miami, Florida.

(emphasis added). K & A’s waiver and release finally and effectively disposed of K & A’s existing lien rights.

iii. Notice of Termination

All other existing liens on the Project were disposed of by the Owner in a similar manner, and the Owner then recorded a Notice of Termination of the August 15, 2005 Notice of Commencement. The Notice of Termination acknowledged that all lienors had been paid in full and was recorded after construction on the Project had ceased before completion, thus satisfying the requirements of sections 713.132(l)(e) and (3). Moreover, it was necessary for the Owner to file a Notice of Termination in order to terminate the effectiveness of this Notice of Commencement, thus giving the lender a first lien on the property when it subsequently recorded the construction mortgage in connection with new financing of the Project. Accordingly, when the Owner recorded a new Notice of Commencement, the Project began anew, thereby renewing the notice requirements of the Construction Lien Law. As a result, K & A was required to send new notices under the Construction Lien Law in order to perfect its lien rights relating to materials K & A furnished after the Project recommenced.

B. Second Notice

K & A also argues that the Second Notice was sufficient to satisfy the notice requirements of section 71S.23(l)(c) for purposes of the rebar materials supplied after the Project recommenced. The trial court concluded that the Second Notice failed to provide the required notice because it stated that K & A was providing materials to the Project “under an order given by Soares Da Costa Construction.” The trial court found that K & A furnished the rebar materials at issue to the Project under the order of Contract Management, not Soares Da Costa. It held that K & A was required to send a separate Notice to Contractor for the rebar materials it delivered to the Project under the order of Contract Management as it had done previously, in the First Notice.

Section 713.23(l)(c) sets forth a form for the notice to contractor which calls for the lienor to identify under whose order the lienor supplied the materials to the project. “The purpose of the notice is to protect an owner from the possibility of paying over to his contractor sums which ought to go to a subcontractor who remains unpaid. The burden is on the subcontractor to insure that the owner knows of his Claim.” Bishop v. James A. Knowles, Inc., 292 So.2d 415, 417 (Fla. 2d DCA 1974) (quoting Boux v. East Hillsborough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969)). In Bishop, the Second District described the statutory intent behind the Construction Lien Law’s notice requirements as follows:

The statutory intent appears clear. The notice is more than written advice that a particular subcontractor is working on the job. If this were the only purpose, there would be many instances where there would be no need for the notice to be served because owners often have knowledge of the identity of one or more of the subcontractors involved in the construction of their building. The notice of intent to claim a lien is a notification that pursuant to the statute the subcontractor is looking to the owner for payment.

Id. Actual notice that a materialman is providing materials to a project, therefore, is insufficient to satisfy the notice requirements of section 713.23(l)(c). A subcontractor is not excused from the notice requirement of section 713.23(l)(c) even where the owner, surety or contractor did not fully adhere to the requirements of chapter 713, Florida Statutes. See Prof'l Plastering & Stucco, 940 So.2d at 448 (“[E]ven if the Subcontractor is correct that the Owner, the Surety, and the Contractor did not fully adhere to the requirements of chapter 713, the Subcontractor [is] not excused from complying with the requirements of section 713.23 that it provide notice .... ” (quoting Bridgeport, Inc. v. Tampa Roofing Co., 903 So.2d 306, 309 (Fla. 2d DCA 2005))).

Arsenio Nieves, K & A’s Commercial Credit Manager, testified concerning the company’s procedure for sending out notices in compliance with the Construction Lien Law. Mr. Nieves testified that every agreement K & A entered into with a customer to deliver materials to a job was assigned a number in the company’s system. When a new number was generated, the required statutory notices for that job were automatically requested. K & A employed Accurate Notice to send these notices. Additionally, when K & A filed a claim of lien on a job, the company’s system permanently froze the account number assigned to that job.

Indeed, Mr. Nieves acknowledged that new numbers were assigned both to Soares Da Costa and Contract Management when the Project recommenced and K & A once again began delivering materials to the Project. Mr. Nieves also acknowledged that, customarily, when new numbers were assigned to a job, K & A would advise Accurate Notice to send out new notices in compliance with the Construction Lien Law. Mr. Nieves admitted that in the instant case a notice was sent only for the miscellaneous building materials K & A delivered under the order of Soares Da Costa, and a notice was not sent as to the rebar materials delivered by K & A to the Project under the order of Contract Management. Mr. Nieves could not explain why such a notice was not sent, stating only that K & A must have requested that a new notice pertaining to the Contract Management order be sent because a new number was generated. When asked if the failure to send the notice was a mistake on Accurate Notice’s part, Mr. Nieves responded, ‘You’re asking the wrong person. I’m not Accurate.” Indeed, as the trial court found in the Final Judgment, “K & A Lumber could not explain the omission except that it was an oversight.”

“Construction lien statutes must be given a strict reading.” WMS Constr., Inc. v. N. Am. Specialty Ins. Co., 929 So.2d 1, 4 (Fla. 3d DCA 2005). K & A was not excused from complying with the requirements of section 713.23(1)(c). It admittedly failed to send a new Notice to Contractor as to its contract with Contract Management and it provided no justification or explanation at trial for why the Notice was not sent. As a result of K & A’s failure to send the appropriate notice to Soares Da Costa concerning its contract with Contract Management, Soares Da Costa paid Contract Management for 100% of the Project rebar without obtaining full releases of lien from K & A to ensure that it was paid for the rebar materials it furnished to the Project. Thus, K & A’s failure to send Soares Da Costa a new Notice to Contractor for its contract with Contract Management resulted in just that which the notice is designed to prevent: payment to Contract Management, which should have been made to K & A.

Moreover, the burden was on K & A to ensure that Soares Da Costa knew of its intention to look to the payment bond for protection on its work. Any actual notice Soares Da Costa may have had that K & A was delivering rebar materials to the Project was insufficient to satisfy this burden. Only privity of contract between the contractor and the lienor, or a lienor’s notice to the contractor as prescribed by section 713.23(l)(c), Florida Statutes, may serve to meet this burden. K & A acknowledged that it did not send a new Notice to Contractor concerning its agreement with Contract Management after recommencement of the Project. Thus, it failed to satisfy a condition precedent to its claim on the payment bond and was precluded from making such claim.

IV. CONCLUSION

For the above reasons, we affirm the final judgment.

Affirmed.

ROTHENBERG, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

In my judgment

(a) no notice to contractor was even required in the circumstances under section 713.23(l)(c), because the lienor and the contractor, in every real sense, shared a “common identity” and were therefore in “privity” with each other. See Aetna Cas. And Sur. Co. v. Buck, 594 So.2d 280 (Fla.1992);
(b) assuming otherwise, both the “first” September 12, 2005 preliminary notice and
(c) the March 28, 2006, “second” notice, although it was not necessary, satisfied any such requirement.

With respect, I believe the Court’s analysis to the contrary embodies a super technical approach to the statutory scheme and gives binding effect to the utterly immaterial variances from the ordinary which had no effect upon the substantial rights of the parties. The law of Florida does not permit such a result. See Sam Rodgers Props., Inc. v. Chmura, 61 So.3d 432, 438 (Fla. 2D DCA 2011) (“ ‘[T]he omission of any of the [statutorily required details] or errors in such claim of lien shall not, within the discretion of the trial court, prevent the enforcement of such hen as against one who has not been adversely affected by such omission or error.’ § 713.08(4)(a).”); see also Stunkel v. Gazebo Landscaping Design, 660 So.2d 623 (Fla.1995); WMS Const., Inc. v. Palm Springs Mile Assocs., Ltd., 762 So.2d 973 (Fla. 3d DCA 2000); Florida Wood Services, Inc. v. Osprey Joint Venture, 720 So.2d 591 (Fla. 5th DCA 1998); Centex-Winston Corporation v. Crown Paint, Inc., 294 So.2d 694 (Fla. 3d DCA 1974).

      . Section 713.23(l)(c) states in pertinent part: Either before beginning or within 45 days after beginning to furnish labor, materials, or supplies, a lienor who is not in privity with the contractor, except a laborer, shall serve the contractor with notice in writing that the lienor will look to the contractor’s bond for protection on the work.

      . Sections 713.05 and 713.06 involve unbond-ed liens.

      . Section 713.23(l)(c) states that the notice to contractor may be in substantially the following form:
      NOTICE TO CONTRACTOR
      To (name of contractor)
      The undersigned notifies you that he or she has furnished or is furnishing (services or materials) for the improvement of the real property identified as (property description) owned by (owner’s name and address) under an order given by _ and that the undersigned will look to the contractor’s bond for protection on the work.


author: PER CURIAM.

text:
    Rogelio GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1720.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.
    Rehearing Denied Nov. 14, 2011.
    Grisel Ybarra, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144, 1152 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    TRG-BRICKELL POINTE NE, LTD., a Florida Limited Liability Company, Appellant, v. Mariano GRAVANTE, Appellee.
    No. 3D10-2708.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 2011.

      Greenberg Traurig, Elliot H. Scherker, and Brigid F. Cech Samóle, Miami, for appellant.
    Sonia Y. Amador, Juan Luis Quintana, and David D. Walter, for appellee.
    Before WELLS, C.J., and RAMIREZ and SUAREZ, JJ.
   SUAREZ, J.

TRG-Brickell Point, NE Ltd., (“TRG”), appeals from a final order granting summary judgment in favor of Mariano Gra-vante (“Gravante”). We reverse as the summary judgment was based on an incorrect interpretation of the law.

On May 16, 2005, the parties entered into a purchase and sale agreement for a condominium unit. Pursuant to the purchase and sale agreement, TRG agreed to substantially complete the building -within two years of the date of the signing of the agreement. When TRG did not complete the condominium unit within the two-year time period, Gravante asked for the return of his deposit. TRG did not return the deposit, and Gravante brought an action for breach of contract. Gravante sued TRG on October 30, 2008, in a one-count complaint for breach of contract alleging that TRG had failed to deliver the condominium unit within two years of the sale agreement’s execution. Gravante sought return of his $84,580.00 escrow payment, plus prejudgment interest, costs and attorney’s fees. TRG filed an affirmative defense claiming that a later-signed purchase agreement, Form H, superseded the first purchase and sale agreement and gave TRG additional time to complete the unit until December 31, 2009. On February 26, 2010, Gravante filed a motion for partial summary judgment alleging that his signature on Form H was a forgery and filed an affidavit of an expert to that effect. On April 8, 2010, the trial court granted partial summary judgment in favor of Gra-vante based, not on the issue of whether the signature was a forgery, which was not decided by the court, but on the finding that Form H, a contract for purchase and sale was not witnessed or dated and therefore invalid as a matter of law. TRG filed a motion for reconsideration relying upon evidence showing that Form H was, in fact, dated and upon Florida law, contending that Form H, a contract for purchase and sale, was not required to be witnessed. The trial court denied TRG’s motion for reconsideration and granted Gravante final summary judgment. This appeal follows.

TRG contends on appeal that the trial court erred in granting final summary judgment in favor of Gravante for two reasons. TRG contends that the trial court abused its discretion in denying TRG’s reconsideration motion because the motion established that Form H had been, in fact, dated, and because section 689.01, Florida Statutes (2010), requiring transfers of real estate to be in writing and signed by the grantor in the presence of two subscribing witnesses, does not apply to a purchase and sale contract; therefore, the grounds upon which the trial court granted summary judgment are refuted. Secondly, the trial court abused its discretion in denying TRG’s motion for reconsideration because summary judgment was granted on grounds that were never raised in the motion for partial summary judgment.

We agree with TRG. In ruling on motions for summary judgment, a trial court may not make extraneous findings and conclusions of law sua sponte on matters that were not raised by the parties. Instituto Patriotico Y Docente San Carlos, Inc. v. Cuban Am. Nat’l Found., 667 So.2d 490 (Fla. 3d DCA 1996); Boucher v. First Cmty. Bank of Orange City, 626 So.2d 979 (Fla. 5th DCA 1993). Gravante’s motion for partial summary judgment was based on whether or not his signature on Form H was forged. Gravante did not raise in his motion that Form H was invalid because it was not dated or witnessed. In addition, because section 689.01 regulates the conveyance of real property and does not apply to documents such as Form H, which is a contract for purchase and sale and is not an instrument of conveyance of property, the statute does not apply. Thus, the trial court’s reason for denying the motion for reconsideration was contrary to Florida law. See Free v. Free, 936 So.2d 699 (Fla. 5th DCA 2006); Benasutti v. Costalas, 526 So.2d 1080 (Fla. 2d DCA 1988); Rosenthal v. Finger & Margolis, P.A., 460 So.2d 993 (Fla. 4th DCA 1984); Con-Dev of Vero Beach, Inc. v. Casano, 272 So.2d 203 (Fla. 4th DCA 1973).

As we find the trial court abused its discretion in denying the motion for reconsideration and granting summary judgment in favor of Gravante, we reverse the final summary judgment in all respects.

Reversed and remanded.


text:
    Belki A. CABRAL, Appellant, v. CITY OF MIAMI BEACH, Appellee.
    No. 3D10-485.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2011.
    Shane L. Stafford & Associates, Lake Worth; Robert S. Glazier, Miami, for appellant.
    Holland & Knight and Rodolfo Sorondo, Jr., and Christopher Bellows, Miami; Jose Smith, Miami Beach City Attorney, and Debora J. Turner, First Assistant City Attorney, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Belki A. Cabral (“Ms.Cabral”) appeals a final judgment in favor of the City of Miami Beach (“the City”) entered upon an order of dismissal in favor of the City. We reverse and remand with instructions to reinstate the complaint.

On November 2, 2004, Ms. Cabral was involved in an automobile accident with a vehicle driven by a City of Miami Beach employee. On November 8, 2004, six days after the accident, Ms. Cabral’s then-attorney, Bennett Drew Fultz, sent a letter to the City notifying it that he represented Ms. Cabral in a claim for damages, as is required under section 768.28, Florida Statutes (2010). Again, on December 21, 2004, Jerrard B. Cutrone, of counsel to attorney Fultz, sent a letter to the City notifying it of the claim. On March 1, 2005, a letter from the City’s risk management department acknowledged receipt of the letters and asked for further information on the claim. On November 2, 2007, the City received yet another letter via Federal Express this time from attorney Peter Miller advising that he now represented Ms. Cabral and, again, notifying the City of her claim. The letter was sent by Federal Express on November 1, 2007, and was received by the City on November 2, 2007. On October 31, 2008, another attorney, Andrew Gerson, then representing Ms. Cabral, brought a lawsuit against the City for negligence. The complaint properly alleged that Ms. Cabral had satisfied all of the pre-suit notice requirements for bringing the action. The attachments to the complaint included the receipt from Federal Express showing that the required notice was served on the City of Miami Beach on November 2, 2007. The complaint did not attach or refer to any of the previous notices. The City moved to dismiss on grounds that Ms. Cabral had failed to comply with the three-year notice requirement of section 768.28(6)(a). The City argued that the Federal Express receipt attached to the complaint was received one day after the statutory three-year notice requirement had expired on November 1, 2007. The City failed to refer to the two previous notices it had timely received and acknowledged.

At this point, the trial judge had not been informed of the two previous timely statutory notices of claim received by the City. Never having been informed of the City’s two previous receipts of timely notice of Ms. Cabral’s claim, the trial judge granted the City’s motion and dismissed the cause of action with prejudice. Andrew Gerson moved for rehearing. He alleged that he was not present at the hearing on the motion to dismiss due to lack of notice and raised the issue of possible improper calculation of the statute of limitations. In support of his motion, he attached the November 2, 2007, Federal Express receipt of notice of claim and another post office receipt of claim dated November 5, 2007. Neither side informed the trial judge of the prior timely notices. On April 7, 2009, Peter Miller moved for leave to file an amicus curiae motion in support of rehearing. Attaching the pertinent letters of notification to the City, attorney Miller advised the trial judge that the City already had received two prior notices of claim, one dated November 8, 2004, from Bennett Drew Fultz, and another, dated December 21, 2004, from Jerrard B. Cutrone, both well within the time provided for under the three-year statute of limitations. He also pointed out that the City already had acknowledged receipt of the notice of claim in its letter to attorney Cutrone dated March 1, 2005, well within the time limitation period for notices of claim under section 768.28. This was the first time that the trial judge was informed of the prior timely notices of claim.

The trial court denied without prejudice the Motion for Leave to File Amicus Curiae Motion in Support of Plaintiffs Motion for Rehearing. The trial court denied with prejudice the Motion for Rehearing of the order granting the City’s motion to dismiss on the basis that the City was not served with the motion for rehearing within the required ten days of the order of dismissal pursuant to Florida Rule of Civil Procedure 1.530(b). Peter Miller filed a Renewed Motion for Leave to File Amicus Curiae Motion in Support of Rehearing. The City’s response never addressed the fact that it had received the two prior timely notices of claim dated November 8, 2004, and December 21, 2004, and that it had, in fact, acknowledged, in writing, receipt of the notices of claim. The trial judge denied the Renewed Motion for Leave to File Amicus Curiae Motion in Support of Rehearing. A successor judge entered a final judgment in favor of the City.

As a general rule, the question of whether a claim is barred by the statute of limitations should be raised as an affirmative defense in the answer rather than in a motion to dismiss. However, if facts on the face of the pleadings show that the statute of limitations bars the action, the defense can be raised by motion to dismiss. Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989). Where the question is whether notice under section 768.28(6)(a) was timely given, the issue of proper notice should be raised by answer or judgment on the pleadings. Ms. Cabral’s complaint alleged that she had satisfied all pre-suit notice requirements. Based on the allegations of Ms. Cabral’s complaint, we find that she adequately pled that she gave proper notice to the City. Glace v. Lower Fla. Keys Hosp. Dist., 481 So.2d 509 (Fla. 3d DCA 1985). “We reach this result based on the authority of Fla. R. Civ. P. 1.120(c) which states that ‘[i]n pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.’ ” Glace, 481 So.2d at 509; see also Fla. R. Civ. P. 1.120(c). After performance of conditions precedent to a lawsuit have been alleged by the plaintiff, the burden then shifts to the defendant to deny with specificity and particularity that the required notices were given, and to properly present this issue to the trial court in the context of a summary judgment motion, see Fla. R. Civ. P. 1.510, or in a motion for judgment on the pleadings. See Fla. R. Civ. P. 1.140(c); Ashley v. Lamar, 468 So.2d 438 (Fla. 5th DCA 1985). The City’s contention that it had not received timely notice is an affirmative defense that is not properly raised in a motion to dismiss.

On motion for rehearing, Ms. Cabral refuted that the statute of limitations had run and argued that the notice of claim had been timely presented to the City. Although the trial court was without jurisdiction to hear the motion for rehearing due to the failure to serve timely under Florida Rule of Civil Procedure 1.530(b), the same grounds again were raised timely by the Renewed Motion for Leave to File Amicus Curiae Motion in Support of Rehearing. As stated in Kash N’Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786, 789 (Fla. 2d DCA 1969), “[i]t is apparent that [appellant] was in the right church but in the wrong pew; in other words, [she] alleged potentially meritorious grounds under one motion, when [she] should have alleged them in the other.” The City has never disputed the additional and overlooked evidence that the City had actually received proper and timely notice in a letter dated November 8, 2004, and again in a letter dated December 21, 2004, twice even before the issue of the statute of limitations arose. Although this evidence should have been alleged in a properly served motion for rehearing under Florida Rule of Civil Procedure 1.530(b), as Ms. Cabral’s counsel had a duty to monitor the current status of the case with regard to the time periods and the statute of limitations which might have affected his client’s rights, see Kash N’Karry, 221 So.2d at 789, if his neglect to do so was excusable, appropriate relief would have been for the trial court to proceed as though the appellant had filed a proper and timely motion pursuant to Florida Rule of Civil Procedure 1.540(b), and not to have dismissed the case. Therefore, as in Kash N’Karry, we treat the Renewed Motion for Leave to File Amicus Curiae in Support of Rehearing as filed within the meaning of Florida Rule of Civil Procedure 1.540 based upon excusable neglect. We would normally remand the case for an evidentiary hearing and a determination by the trial court as to whether Ms. Cabral has shown excusable neglect within the meaning of Florida Rule of Civil Procedure 1.540 sufficient to permit reconsideration of the statutory notice claims which, undisputedly, had been timely served on the City. See Knowles v. JPMorgan Chase Bank, N.A., 994 So.2d 1218 (Fla. 2d DCA 2008) (reversing and remanding as an abuse of discretion for trial court to refuse to consider counter-affidavit presented for first time on motion for rehearing where the court was unaware of evidence that would have changed the posture of the case). But based on the facts of this case, wherein the record shows, and the City does not dispute that the City did receive timely statutory notice of the claim at least two, if not three, times thereby making moot any question of excusable neglect on the part of the plaintiff, we reverse and remand with instructions to the trial court to reinstate the complaint.

Reversed and remanded with instructions to the trial court to reinstate the complaint.

      . Section 768.28(6)(a) bars a claim from being brought against the state or one of its agencies or subdivisions unless written notice of the claim is first given within three years after the claim accrues:
      (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues....

      . On April 9, 2009, Andrew Gerson withdrew as counsel for Ms. Cabral.

      . We question whether the statute of limitations had actually expired. The dates presented and relied upon do not conclusively establish that the notice of claim had not been served "within 3 years” after the claim accrued. See § 768.28(6)(a), Fla. Stat. (2010); McMillen v. Hamilton, 48 So.2d 162 (Fla.1950) (holding that, in computing time to determine whether an act was performed within a specified period of time under the statute of limitations, the first day is excluded and the last day of the period is included); Blacks Law Dictionary 1437 (5th ed. 1979) ("[W]hen used relative to time, [within] had been defined variously as meaning any time before; at or before; at the end of; before the expiration of; not beyond; not exceeding; not later than.”).