author: PER CURIAM. MOORE, Judge,

text:
    A.M.F. v. TUSCALOOSA COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2100353.
    Court of Civil Appeals of Alabama.
    July 22, 2011.

      Stuart D. Albea, Tuscaloosa, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, asst. atty. gen., Department of Human Resources, for ap-pellee.
   PER CURIAM.

A.M.F. (“the mother”) appeals from a judgment of the Tuscaloosa Juvenile Court terminating her parental rights to C.G. (“the child”). We affirm.

Facts and Procedural History

The child was born on May 26, 2004. Before the child was born, the mother had been convicted of armed robbery; she was placed on probation. When the child was 17 months old, the mother was sent to prison for violating her parole. The mother remained in prison until September 2007. The mother did not have any contact with the child while she was in prison. The mother entered the supervised-reentry program at the Lovelady Center when she was released from prison.

The Tuscaloosa County Department of Human Resources (“DHR”) first became involved with the family in July 2008. At that time, the child was living with her paternal relatives due to the mother’s incarceration and subsequent placement at the Lovelady Center. When DHR became involved with the family, the child’s paternal grandfather had tested positive for marijuana use. The child also had extensive dental-health issues. Additionally, DHR performed a child-abuse and neglect investigation of the child’s father, R.G. (“the father”), which resulted in indicated findings for sexual abuse and neglect of the child. DHR removed the child from the care of the paternal relatives and placed the child in foster care.

After DHR was awarded legal custody of the child, it placed the child with the mother at the Lovelady Center as a trial placement. According to the mother, she successfully completed the program at the Lovelady Center; however, she did not leave the Lovelady Center at the time she completed the program because she had nowhere else to live. In March 2009, the Lovelady Center asked the mother to leave, alleging that she had violated its rules regarding having men in the center. When the mother left the Lovelady Center, she left the child in its day-care facility. The mother testified that she did not notify DHR that she had left the Lovelady Center or that she did not have a place to live. On the same day that she left the Lovelady Center, the mother executed a consent to the adoption of the child through an attorney specializing in private adoptions. DHR was not involved in arranging the execution of the adoption consent; DHR, which had legal custody of the child, refused to allow the child to be adopted because the child was in its care and because the child had a legal father. DHR retrieved the child from the Lovela-dy Center and placed her in foster care in Tuscaloosa.

According to the mother, after she left the Lovelady Center, she lived on the streets for three months. She had no contact with DHR or the child during that three-month period. The mother then moved to Brewton in June 2009, where she lived with a man who was the mother’s boyfriend at the time. While living in Brewton, the mother worked for three months at a Dollar Tree discount store. The mother had some contact with the child by telephone during the time she lived in Brewton. The mother did not have any visitation with the child during that time. The mother testified that she did not have an automobile or a driver’s license; the mother stated that she suffers from seizures, which prevent her from obtaining a driver’s license.

In June 2010, the mother moved to Tuscaloosa, where she lived with her aunt. The mother’s uncle also lived in the aunt’s mobile home, along with S.D., who the mother claimed at trial was actually the father of the child. In October 2010, the aunt asked the mother to leave the aunt’s home because the mother and S.D. were not getting along; S.D. continued to live in the aunt’s home. The mother then lived for a short time with an elderly woman in a mobile home that lacked electricity or running water.

The mother testified that, during the time she had lived in Tuscaloosa, she had visited with the child seven times. The mother did not visit with the child from the time she left the child at the Lovelady Center in March 2009 until June 2010. Rhonda Lee, a DHR caseworker, testified that the mother visited with the child four or five times. The visits were all supervised by DHR. Lee testified that the visits all occurred at times requested by the mother. Lee also testified that the mother could have had additional visits with the child but that she had not requested any additional visits.

In October 2010, the mother moved to Dora in Walker County, where she continued to live at the time of trial. The mother testified that she was living with her fiance, R.L., in a three-bedroom, two-bath mobile home. R.L.’s mother and stepfather also lived in the mobile home, which was titled in R.L.’s mother’s name. According to the mother, she became engaged to R.L. around the time she moved in with him; the mother stated that she had known R.L. “since third grade.” The mother testified that R.L. had been previously convicted of burglary and that he was currently on probation. The mother further testified that R.L. worked with the local carpenter’s union, where he earned $16.95 per hour plus overtime.

The mother also testified that she had obtained employment with Diversco, which she was scheduled to start in January 2011. The mother stated that the job would entail cleaning duties at various Alabama Power Company facilities and that she would earn $10 per hour. Lee testified that the mother had not been in contact with DHR after she moved to Dora. Lee further testified that the mother had not informed DHR of her address in Dora or that she was living with R.L.; DHR also had not had an opportunity to check R.L.’s background.

Lee testified that DHR had offered the mother drug screens, counseling for the child, visitation, and telephone contact with the child. Lee further testified that DHR had attempted to make contact with the child’s relatives. DHR also offered the father counseling. Lee answered “no” when asked whether the mother had completed any counseling. Lee stated that the mother had not obtained stable housing or a means of support during the entire time that the child had been in foster care. The mother admitted that she could not take care of the child at the time of the trial. The mother testified that she thought she could be ready to provide for the child in an additional six months. When asked how long she thought was fair to make the child wait for her to turn things around, the mother answered that making the child wait was not fair to the child. The mother also admitted that she had not been able to provide a stable home for the child at any time during the two and a half years that the child had been in foster care. The mother further testified that DHR had tried to work with her, and she answered “no” when asked whether there was anything else DHR could have done.

The juvenile court entered a judgment on December 28, 2010, terminating the mother’s and the father’s parental rights to the child. The juvenile court made detailed findings of fact and conclusions of law in its judgment. Among its findings, the juvenile court determined that the conduct and condition of the parents rendered them unable to properly care for the child and that such conduct and condition was unlikely to change in the foreseeable future, that the parents had failed to provide for the material needs of the child during the time the child had been in the custody of DHR, that the parents had failed to comply with the conditions of their individualized service plan, that the parents had exhibited a lack of effort to adjust their circumstances to meet the needs of the child, and that DHR had made reasonable efforts to rehabilitate the parents to enable the child to be reunified with the family but that those efforts had failed. The juvenile court also determined that no viable alternatives existed to the termination of the parents’ parental rights. The juvenile court further stated that it had considered the recommendation of the child’s guardian ad litem, who recommended termination of the parents’ parental rights. The mother subsequently appealed to this court.

Issues

The mother raises two issues in her appeal: (1) whether the juvenile court erred when it determined that DHR had used reasonable efforts to reunite the mother with the child and (2) whether the juvenile court’s judgment was supported by clear and convincing evidence.

Standard of Review

“The juvenile court’s factual findings based on evidence presented ore tenus in a judgment terminating parental rights are presumed correct. R.B. v. State Dep’t of Human Res., 669 So.2d 187 (Ala.Civ.App.1995). The judgment terminating parental rights based on those findings will be reversed only if the record demonstrates that the decision is unsupported by the appropriate quantum of evidence, i.e., clear and convincing evidence, and is plainly and palpably wrong. Ex parte T.V., 971 So.2d 1, 4-5 (Ala.2007).”

F.I. v. State Dep’t of Human Res., 975 So.2d 969, 972 (Ala.Civ.App.2007).

Analysis

The mother first argues that the juvenile court erred in terminating her parental rights because, she says, DHR did not make reasonable efforts to reunite her with the child. Whether DHR has made reasonable efforts to reunite a parent and a child is a fact-dependent inquiry. J.B. v. Jefferson Cnty. Dep’t of Human Res., 869 So.2d 475, 482 (Ala.Civ.App.2008). “[T]he efforts actually required by DHR in each case, whether the court is considering rehabilitation or reunification, depend on the particular facts of that case, the statutory obligations regarding family reunification, and the best interests of the child.” J.B., 869 So.2d at 482.

In support of her argument on this issue, the mother cites H.H. v. Baldwin County Department of Human Resources, 989 So.2d 1094 (Ala.Civ.App.2007) (opinion on return to remand)(authored by Moore, J., with two judges concurring in the result), in which we reversed a juvenile court’s judgment terminating a parent’s parental rights, holding that DHR had not made reasonable efforts to reunite the parent with the child. In this case, the mother argues that, like in H.H., DHR did not offer her sufficient services to address her particular needs — a lack of stable housing and employment. Although a plurality of this court in H.H. held that, in that case, DHR had not made reasonable efforts to reunite the parent and the child, the main opinion also recognized that,

“[i]n a proceeding to terminate parental rights, a juvenile court must consider a parent’s lack of effort to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached with DHR as evidence of the parent’s inability or unwillingness to discharge his or her parental responsibilities to and for the child. Ala.Code 1975, § 26-18-7 [now, § 12-15-319(a)(12) ]. This statute contemplates that a parent’s actual lack of effort is to be considered in relation to a reasonable reunification plan that is already in place. The statute negates any implication that the legislature intended that DHR would not have to formulate a reasonable reunification plan in cases in which DHR or the juvenile court concluded that the parent might not or even probably would not follow the plan.”

H.H., 989 So.2d at 1107. The main opinion in H.H. then concluded that, to the extent the trial court may have relied on the parent’s predicted failure to attempt to rehabilitate herself, the trial court had erred. Id.

In this case, the mother had no contact with the child from when the child was 17 months old until she was 4 years old because of the mother’s incarceration. Then, after DHR had reunited the mother and child in a trial placement at the Lovelady Center, the mother left, after being accused of breaking the Lovelady Center’s rules, and failed to notify DHR that she had left the child at the Lovelady Center day-care facility. The mother also did not notify DHR that she did not have a place to live and did not provide DHR with any way to contact her. As a result, DHR had no way to contact the mother for over three months. Additionally, the mother consented to the private adoption of the child. The mother then moved away from the child, to Brewton, to live with a boyfriend. The mother made no effort to visit the child over the next year while she lived in Brewton. The mother moved back to Tuscaloosa only after DHR filed its petition to terminate the mother’s parental rights. The mother lived with her aunt while in Tuscaloosa, but she had to leave the aunt’s home because she and an unrelated man, whom the mother claimed at trial was the actual father of the child, could not get along. The mother then moved away from the child again, to Dora, where she began living with her fiancé and his mother and stepfather, in a mobile home owned by the fiancé’s mother. The mother again did not notify DHR that she had moved or with whom she was living. The mother has not achieved stable housing or lasting employment for the entire time that DHR has been involved with the family. Additionally, according to Lee, there were times when DHR had no way to contact the mother and no way to know where she was living. The mother also acknowledged at trial that she could not care for the child, but she speculated that she might be able to in six months.

The juvenile court, in its judgment, determined that DHR had made reasonable efforts to reunite the mother and the child. At the hearing, Lee testified regarding the services DHR had offered to the mother in an attempt to reunite the mother and the child. Lee also testified whether, and to what extent, the mother had taken advantage of those services. Although DHR must make reasonable efforts to reunite a parent and child, the parent must make himself or herself available to DHR and must make an effort to address his or her issues and improve his or her circumstances. The juvenile court could have concluded that the mother had made no serious efforts to rehabilitate herself, that she had not made herself available for rehabilitation, and that any additional efforts by DHR would have been futile. Cf. K.P. v. Etowah Cnty. Dep’t of Human Res., 43 So.3d 602, 607 (Ala.Civ.App.2010) (holding that the Etowah County DHR had no duty to provide services to an incarcerated mother because she was not able to receive those services). See also In re Tiffany B., 228 S.W.3d 148, 159 (Tenn.Ct.App.2007) (“Reunification of a family, however, is a two-way street, and neither law nor policy requires the Department [of Children’s Services] to accomplish reunification on its own without the assistance of the parents. Parents share the responsibility for addressing the conditions that led to the removal of their children from their custody. They must also make reasonable efforts to rehabilitate themselves once services have been made available to them.”(internal citations omitted)). The mother herself admitted that DHR had tried to work with her, and she agreed that there was nothing more that DHR could have done to rehabilitate her.

Moreover, based on the evidence before the juvenile court, it does not appear that the mother made any real efforts toward reunification with the child until after DHR filed its petition to terminate the mother’s parental rights. Only then did the mother move back to Tuscaloosa to be near the child. Thus, the juvenile court could have viewed those efforts by the mother as “late, incomplete and, therefore, unconvincing, measures taken only in anticipation of the termination-of-parental-rights hearing.” J.D. v. Cherokee Cnty. Dep’t of Human Res., 858 So.2d 274, 277 (Ala.Civ.App.2003). Because the juvenile court could have determined from the evidence before it that DHR had made reasonable efforts under the particular circumstances of this case, we discern no error in the juvenile court’s factual finding on this issue.

The mother next argues that the evidence was insufficient to support the trial court’s judgment terminating her parental rights. A juvenile court’s judgment terminating parental rights must be supported by clear and convincing evidence. Bowman v. State Dep’t of Human Res., 534 So.2d 304, 305 (Ala.Civ.App.1988). “Clear and convincing evidence” is “ ‘Evidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.’ ” L.M. v. D.D.F., 840 So.2d 171, 179 (Ala.Civ.App.2002) (quoting Ala.Code 1975, § 6-ll-20(b)(4)). The juvenile court’s factual findings in a judgment terminating parental rights based on evidence presented ore tenus are presumed correct. K.P. v. Etowah Cnty. Dep’t of Human Res., 43 So.3d 602, 605 (Ala.Civ.App.2010).

The mother argues that the juvenile court’s determination that her “condition is unlikely to change in the foreseeable future,” § 12-15-319(a), Ala.Code 1975, was not supported by clear and convincing evidence. The mother points to her testimony that, at the time of the trial, she had allegedly obtained stable housing and had obtained employment. The mother also argues that her condition had been “steadily improving” from the time DHR became involved with the case. However, the juvenile court had sufficient evidence from which it could have determined that the mother’s condition had not improved and was unlikely to improve in the foreseeable future. The mother obtained housing, for which she was still dependent on other people, only one month before the termination-of-parental-rights trial, and her prospective employment was not scheduled to begin until a date after the conclusion of the trial. The mother had not notified DHR of her new living arrangements, and she had not visited the child since she had relocated to Dora. As we stated above, the juvenile court could have determined that, to the extent the mother may have allegedly improved her condition, those efforts were merely last-minute efforts undertaken in anticipation of the impending termination-of-parental-rights trial. J.D., 858 So.2d at 277. Moreover, the juvenile court “ ‘may consider the past history of the family as well as the evidence pertaining to current conditions.’ ” A.R. v. State Dep’t of Human Res., 992 So.2d 748, 760 (Ala.Civ.App.2008)(quoting T.B. v. Lauderdale Cnty. Dep’t of Human Res., 920 So.2d 565, 570 (Ala.Civ.App.2005)). In viewing the evidence before the juvenile court relating to the entire case, including the mother’s history as well as the mother’s current conditions, we cannot conclude that the juvenile court’s determination that the mother’s condition was unlikely to improve in the foreseeable future was not supported by clear and convincing evidence.

Conclusion

Because we discern no error in the juvenile court’s determination that DHR had made reasonable efforts to reunite the mother and the child, or in its determination that the mother’s condition was unlikely to change in the foreseeable future, we affirm the judgment of the juvenile court.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

I concur that the judgment of the juvenile court is due to be affirmed, but not for any of the reasons set out in the main opinion, with which I largely disagree.

In order for the State to terminate parental rights, the State bears the burden of proving, by clear and convincing evidence, that the parent is “unable or unwilling to discharge [his or her] responsibilities to and for the child, or that the conduct or condition of the parent[] renders [him or her] unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future.” § 12-15-319(a), Ala.Code 1975. In deciding whether those grounds exist, a juvenile court “shall consider the following factor[ ] ...: ... [t]hat reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.” § 12-15-319(a)(7), Ala.Code 1975 (emphasis added). Although reasonable parental-rehabilitation and family-reunification efforts are not required in every case, see § 12 — 15—312(c), Ala.Code 1975, when they are a juvenile court has an imperative statutory obligation to consider whether those efforts have failed. See generally Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (“The word ‘shall’ is clear and unambiguous and is imperative and mandatory.”).

Arguably, in considering whether reasonable parental-rehabilitation efforts have failed as part of the termination-of-parental-rights proceeding, a juvenile court would have to decide, as an initial matter, the reasonable nature of those efforts. However, in cases in which a child has been removed from the family home and is receiving out-of-home care, the legislature intended that question to be resolved much earlier in an entirely different proceeding.

The legislature has established a goal for juvenile courts

“[t]o reunite a child with his or her parent or parents as quickly and as safely as possible when the child has been removed from the custody of his or her parent or parents unless reunification is judicially determined not to be in the best interests of the child.”

§ 12-15-101(b)(3), Ala.Code 1975. Pursuant to that goal, a juvenile court that has removed custody of a child from his or her parent or parents ordinarily should immediately develop a reasonable plan to reunite the family. See T.V. v. B.S., 7 So.3d 346, 361 (Ala.Civ.App.2008) (Moore, J., concurring in the result). That plan should be directed toward eliminating the problems that caused the family separation and should be implemented forthwith in a manner designed to achieve its purpose of reuniting the family. See H.H. v. Baldwin Cnty. Dep’t of Human Res., 989 So.2d 1094, 1104-05 (Ala.Civ.App.2007) (opinion on return to remand) (authored by Moore, J., with two judges concurring in the result) (outlining the steps that the State must take when using reasonable efforts to rehabilitate a parent and reunite a family). In formulating and promptly implementing a sound family-reunification plan, a juvenile court assures that a dependent child will spend the least amount of time outside the family home in an uncertain custodial arrangement. See generally A.D.B.H. v. Houston Cnty. Dep’t of Human Res., 1 So.3d 53, 69-73 (Ala.Civ.App.2008) (Moore, J., concurring in part and concurring in the result) (explaining public policy behind expediting the resolution of ancillary issues before the hearing to determine whether parental rights should be terminated).

To avoid unduly lengthening the unstable custodial situation for the child, if the juvenile court misdirects its efforts toward family reunification by crafting a plan that fails to address the problems causing the separation of the family, that error should be immediately brought to its attention, but certainly no later than the permanency hearing, which is to be held at least within 12 months of the date the child is removed from home. See § 12-15-315(a), Ala.Code 1975. The legislature envisioned that, by the time of the permanency hearing, the juvenile court would be in a position to assess the viability of family reunification and to establish an end date for accomplishing that reunification or to redirect its efforts toward another permanent custodial arrangement for the child, if necessary. See A.D.B.H., 1 So.3d at 69-73 (Moore, J., concurring in part and concurring in the result). In essence, the permanency hearing provides the last opportunity for the juvenile court to refine the family-reunification plan. Thus, as this court has held, any lingering problems with the family-reunification plan must be finally resolved at that hearing. See D.P. v. Limestone Cnty. Dep’t of Human Res., 28 So.3d 759, 763 (Ala.Civ.App.2009) (stating that permanency hearings are intended to address “issues such as ... the reasonableness of [the Department of Human Resources’] efforts to rehabilitate a parent”).

In this case, A.M.F. (“the mother”) does not claim that the Tuscaloosa Juvenile Court (“the juvenile court”) failed to provide her with a permanency hearing or an earlier opportunity to object to the family-reunification plan. The mother simply argues that the plan was defective from its inception because it did not provide any means for rectifying her housing and employment problems and that, essentially, the juvenile court should not have terminated her parental rights without first restarting the family-reunification process with a more comprehensive plan. I agree with the mother that any reasonable plan for family reunification would have addressed her housing and employment problems, which, according to Rhonda Lee, the foster-care worker assigned to the case, formed the primary barriers to reuniting the mother and the child. However, I cannot agree that the juvenile court erred in failing to acknowledge those defects at the hearing on the petition to terminate the parental rights of the mother. The question of the reasonableness of family-reunification efforts had long been foreclosed by the time of that hearing and could not be revived or reconsidered at that time.

“Parental rights are indeed cherished and deserve the law’s utmost protection against unwarranted interference.” Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). The law provided the mother with a method by which she could have assured that the State used reasonable efforts to reunite her family. Had the mother cherished her parental rights, she should have availed herself of that process and insisted on a more tailored reunification plan. The record does not disclose any efforts the mother made in that regard before the hearing on the petition to terminate her parental rights. The mother could not use that forum to complain of the reasonableness of the family-reunification plan, and this court cannot reverse the judgment of the juvenile court for failing to take corrective action at that late stage of the proceedings. Hence, for those reasons alone, I concur that the judgment of the juvenile court should be affirmed.

      . The father consented to the termination of his parental rights to the child. The father has not appealed the judgment of the juvenile court.

      . In her statement of the issues, the mother also includes the issue whether viable alternatives existed to the termination of her parental rights. However, she does not provide any argument concerning that issue. Therefore, we need not consider it on appeal. See Ex parte Riley, 464 So.2d 92, 94 (Ala.1985) ("Indeed, it has long been the law in Alabama that failure to argue an issue in brief to an appellate court is tantamount to the waiver of that issue on appeal.”).

      . At no time in the juvenile court, either through testimony, or by questioning or cross-examination of witnesses, or by argument of counsel, did the mother assert that DHR had not made reasonable efforts to attempt to reunite the mother and the child. In fact, the mother, under questioning from the child's guardian ad litem, testified that she thought that DHR had tried to work with her and to provide services to her to attempt to reunite her with the child and that there was nothing else DHR could have done. The mother also did not file a postjudgment motion challenging the juvenile court’s finding that DHR had made reasonable efforts to reunite the mother with the child.
      The long-established precedent in Alabama caselaw is that an appellate court cannot reverse a trial court’s judgment on an argument that was not first presented to the trial court. See Belcher v. Belcher, 18 So.3d 946, 948 (Ala.Civ.App.2009) (holding that a party had failed to preserve an argument for appellate review when that party had failed to argue the issue to the trial court "either at trial or in his postjudgment motion”); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (“[Tjhis Court will not reverse the trial court’s judgment on a ground raised for the first time on appeal.”); and Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (citing Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (Ala.1991)) ("This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”). As our supreme court has stated:
      ‘[I]t is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; ... fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to;
      ... the rule promotes efficient trial proceedings; ... reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and ... there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to he right.

        Birmingham Hockey Club, Inc. v. National Council On Comp. Ins., Inc., 827 So.2d 73, 80 (Ala.2002) (quoting Ex parte Elba Gen. Hosp., 828 So.2d 308, 314 (Ala.2001), quoting in turn Cantu v. State, 660 So.2d 1026, 1031-32 (Ala.1995) (Maddox, J., concurring in part and dissenting in part), quoting in turn State v. Applegate, 39 Or.App. 17, 21, 591 P.2d 371, 373 (1979)). Thus, arguably, we need not address the mother's argument on this issue on appeal. However, out of an abundance of caution, we will address the merits of the mother’s argument on this issue.

      . The mother’s testimony that DHR had provided what services it could to assist her in reuniting with her child arguably led the juvenile court to commit what the mother now alleges was error — i.e., making a determination that DHR had made reasonable efforts to reunite the mother and the child. It is well settled that a party may not induce an error by the trial court and then attempt to secure a reversal based on that error.
      " ‘A party may not predicate an argument for reversal on “invited error,” that is, "error into which he has led or lulled the trial court.” ' Atkins v. Lee, 603 So.2d 937, 945 (Ala.1992) (quoting Dixie Highway Express, Inc. v. Southern Ry., 286 Ala. 646, 651, 244 So.2d 591, 595 (1971)). ‘That doctrine [of invited error] provides that a party may not complain of error into which he has led the court.’ Ex parte King, 643 So.2d 1364, 1366 (Ala.1993). ‘A party cannot win a reversal on an error that party has invited the trial court to commit.’ Neal v. Neal, 856 So.2d 766, 784 (Ala.2002). See also Liberty Nat’l Life Ins. Co. v. Beasley, 466 So.2d 935, 937 (Ala.1985); State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 418, 304 So.2d 573, 577 (1974).”

        Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003).


source: Caselaw Access Project

author: MAIN, Judge.

license: Public Domain

text:
    Michael Eugene STEVENSON v. STATE of Alabama.
    CR-09-1307.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.

      Michael Eugene Stevenson, pro se.
    Troy King, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.
   MAIN, Judge.

Michael Eugene Stevenson appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he challenged his September 17, 2001, guilty-plea convictions for second-degree receiving stolen property and attempted production of pornography involving a person or persons under 17 years of age, and his resulting sentences, as a habitual offender with three prior felony convictions, of 15 years’ imprisonment for the receiving-stolen-property conviction and 30 years’ imprisonment for the attempted-production-of-pornography conviction. The record indicates that two other charges were nolle prossed as part of the plea agreement. Stevenson stated in his petition that he did not appeal the convictions.

Stevenson filed his Rule 32 petition on June 3, 2009. In his petition, Stevenson alleged: (1) that there were defects in the sentencing proceedings that rendered his sentences illegal; (2) that his guilty pleas were unlawfully induced or involuntarily entered without an understanding of the nature of the charges and the consequences of the pleas; (3) that he was denied a speedy trial and resolution of the charges against him; (4) that the proceedings against him violated the Interstate Agreement on Detainers Act; (5) that his counsel was ineffective with regard to the plea proceedings and at sentencing; (6) that the State did not prove any prior convictions for purposes of the application of the Habitual Felony Offender Act (“the HFOA”); and (7) that the search warrant that resulted in incriminating evidence was defective. The State filed a motion to dismiss the Rule 32 petition, asserting that each claim in the petition was procedurally barred pursuant to Rule 32.2(a)(3) and that the claims were without merit. On July 24, 2009, Stevenson filed a response to the State’s motion to dismiss. On May 13, 2010, the circuit court summarily denies Stevenson’s petition. This appeal followed.

I.

Because of the factual allegations in the petition and on appeal, in order to address Stevenson’s claims we must first determine when Stevenson was sentenced. Stevenson asserts that, although he entered his guilty plea on September 17, 2001, he was not actually sentenced until December 9, 2008. In his petition, Stevenson argued that his attorney informed him that he would be sentenced to concurrent 15-year sentences if he agreed to plead guilty. Stevenson contended that he decided to plead guilty based on that belief and that, after pleading guilty, the trial court indicated that it only needed to change something regarding the HFOA and the range of punishment on the signed Ireland guilty-plea form. Stevenson claimed, however, that the trial court did not impose the sentence at that time but instead allowed him to be released on bond for 32 days to tend to his personal affairs, and that he was supposed to return on October 19, 2001, to begin serving his sentence. Thus, according to Stevenson, the “case was still open as sentencing was not concluded.” (C. 49.) Stevenson stated that he did not report on October 19, 2001, to begin serving his sentence but fled to Oklahoma, where he was later arrested on charges arising in Oklahoma. Stevenson was eventually returned to Alabama, and on December 9, 2008, he was brought back before the trial court, at which time the trial court purported to order that his sentences run consecutively, rather than concurrently as initially imposed in 2001.

The case-action-summary continuation for Case No. CC-00-4061 (attempted production of pornography) in the record before this Court contains entries dated September 17, 2001, indicating that Stevenson was “called before the Court and asked whether he has anything to say as to why sentence should not be pronounced against him says no sir” (C. 30); that the trial court ordered that Stevenson “be imprisoned in the penitentiary for a term of 30 years” (C. 30); and that the “sentence imposed in this case is run concurrent with sentence imposed in case(s) numbered CC-00^059.” (C. 31.) The case-action-summary continuation for Case No. CC-00^1059 (receiving stolen property) contains similar entries with regard to a 15-year sentence and running concurrently with the sentence in CC-00-4061. (C. 9-10.) Thus, despite Stevenson’s arguments to the contrary, the record before this Court indicates that Stevenson was in fact sentenced on September 17, 2001.

Having resolved that question, we now address Stevenson’s claims.

II.

None of Stevenson’s allegations implicate the trial court’s subject-matter jurisdiction and, therefore, the procedural bars in Rule 32.2.

With regard to claims 6 (that the State did not provide notice of its intent to apply the HFOA or prove any prior convictions for purposes of the application of the HFOA) and 7 (defective search warrant), those claims are, as asserted by the State and found by the circuit court, barred pursuant to Rule 32.2(a)(3), because they could have been, but were not, raised at trial. See Wallace v. State, 959 So.2d 1161, 1164 (Ala.Crim.App.2006) (“A challenge to insufficient notice of the State’s intent to seek application of the HFOA is subject to the procedural bars in Rule 32.2, Ala. R.Crim.P.”); and Ex parte Batey, 958 So.2d 339, 341 (Ala.2006) (“[T]he failure to prove a prior conviction [for purposes of the application of HFOA] is not a jurisdictional matter; therefore, consideration of that issue in a Rule 32 petition is precluded.”).

With regard to claims 3 (denial of speedy trial and resolution of the charges against him) and 4 (alleged violations of the Interstate Agreement on Detainers Act), those claims are based on Stevenson’s belief that he was not sentenced until December 9, 2008. As we have decided that question adversely to Stevenson, those claims are baseless and do not entitle Stevenson to any relief.

Finally, with regard to claims 1 (alleged defects in the guilty-plea and sentencing proceedings) and 2 (that his guilty plea was unlawfully induced or involuntarily entered into without an understanding of the nature of the charges and the consequences of the plea), to the extent that those claims challenge proceedings that occurred in 2001, they are, as asserted by the State in its motion to dismiss the petition, barred pursuant to Rule 32.2(a)(3), because they could have been, but were not, raised at trial. See Fincher v. State, 837 So.2d 876 (Ala.Crim.App.2002) (a challenge to the voluntariness of a guilty plea is not jurisdictional). To the extent that they are based on the trial court’s December 9, 2008, order purporting to order that Stevenson’s sentences run consecutively, Stevenson is entitled to no relief on those claims because, for the reasons we discuss in Part III of this opinion, the circuit court’s order is void.

III.

As noted in Part II of this opinion, many of Stevenson’s allegations are based on the trial court’s December 9, 2008, order purporting to order that Stevenson’s sentences, which had previously been imposed as concurrent sentences, run consecutively. The State avers on appeal that the case is due to be remanded for the circuit court to correct a defect in the sentence. We agree.

The trial court, at the September 17, 2001, sentencing, ordered that Stevenson’s sentences were to run concurrently. On December 9, 2008, when Stevenson was brought before the trial court after being returned from Oklahoma, the trial court ordered that Stevenson’s sentences run consecutively.

Generally, “a trial court retains jurisdiction to modify a sentence for 30 days after that sentence is pronounced.” State v. Monette, 887 So.2d 314, 315 (Ala.Crim.App.2004). See also Ex parte Hitt, 778 So.2d 159, 162 (Ala.2000) (“[I]f a motion for a new trial or a request to modify a sentence is not filed within 30 days after sentencing, then at the end of the 30th day the trial court loses all jurisdiction to modify a defendant’s sentence.”). Although Rule 26.12(c), Ala.R.Crim.P., allows a sentencing court to “at any time, by a nunc pro tunc order provide that previously imposed consecutive sentences run concurrently,” we find no such provision allowing for a trial court to, more than 30 days after sentence is pronounced, order that previously imposed concurrent sentences be served consecutively. Thus, because Stevenson was sentenced on September 17, 2001, the trial court was without jurisdiction to order that those previously imposed concurrent sentences run consecutively. Therefore, we remand this case with instructions that the trial court vacate its order of December 9, 2008, and reinstate the sentences imposed on September 17, 2001. 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.

REMANDED WITH INSTRUCTIONS.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

      . The State further asserted that Stevenson’s allegation that the State did not give notice of its intention to proceed under the HFOA was also barred pursuant to Rule 32.2(c).

      . The circuit court’s order specified Rule 32.2(a)(3) as the basis for the denial of some of the claims; Rule 32.2(c) as the basis for the denial of one claim; and the lack of merit, as the basis for the denial of some of the claims.

      . Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).

      . Stevenson averred that a transcript of the plea colloquy would establish that the requirements of Rule 26.9, Ala.R.Crim.P., were not met.

      . The claims Stevenson presented in his petition but does not pursue on appeal are deemed to be abandoned. See, e.g., Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) ("We will not review issues not listed and argued in brief.”).

      . The trial court also has jurisdiction to reopen a case more than 30 days after sentencing in limited circumstances, such as circumstance recognized by the legislature in enacting § 13A-5-9.1, Ala.Code 1975. See Kirby v. State, 899 So.2d 968 (Ala.2004). No such circumstance authorized by the Alabama Constitution of 1901 or by statute exists in this case.


author: PER CURIAM. KELLUM, Judge,

text:
    Samuel Earl IVORY v. STATE of Alabama.
    CR-09-1767.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.
    Rehearing Denied Nov. 19, 2010.
    Certiorari Denied Aug. 5, 2011 Alabama Supreme Court 1100256.

      Samuel Earl Ivory, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and MAIN, JJ„ concur. KELLUM, J., concurs specially, with opinion. WISE, P.J., and WINDOM, J., concur in the result.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Ivory’s sixth Rule 32, Ala. R.Crim. P., petition challenging his 1995 convictions. Ivory has raised nearly identical challenges to his indictment in at least five of these Rule 32 petitions. I believe that allowing Ivory to file unlimited petitions for postconviction relief in which he repeatedly raises the same issues wastes scarce judicial resources. Given the number of Rule 32 petitions filed by Ivory and the nature of the claims made in those petitions, I would encourage the circuit court to adopt sanctions pursuant to Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Ivory. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009), and other cases involving similarly situated inmates.


author: PER CURIAM.

text:
    Marc Wayne HOLLIDAY v. STATE of Alabama.
    CR-09-1823.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2011.

      Marc Wayne Holliday, pro se.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   PER CURIAM.

Marc Wayne Holliday appeals the circuit court’s denial of his Rule 32, Ala.R.Crim. P., petition for postconviction relief, in which he challenged his September 17, 2007, guilty-plea convictions for first-degree sexual abuse and second-degree sodomy, and the resulting sentences of 20 years for each conviction, to be served concurrently. Holliday states in his petition that he did not appeal his convictions and sentences.

Holliday’s first Rule 32 petition was dismissed on May 28, 2008, and he did not appeal that denial. He filed a seeond Rule 32 petition on January 26, 2009, seeking an out-of-time appeal of his first petition. He states in his present petition that his second petition was denied on April 3, 2009. He appealed that denial to this court, and, on August 13, 2009, we remanded this case by order to the circuit court to enter an order, making specific, written findings of fact concerning Holliday’s claim. On return to remand, this court affirmed the circuit court’s denial by unpublished memorandum. Holliday v. State, 64 So.3d 1156 (Ala.Crim.App.2009) (table).

Holliday filed the present Rule 32 petition in June 2010. In his petition, he alleged that his sentences were unauthorized because, he says, they were improperly enhanced pursuant to the Alabama Habitual Felony Offender Act. Specifically, he contends that the two prior convictions used to enhance his sentences were improper, because he had previously been pardoned as to one of the convictions and another had resulted from a plea of nolo contendere.

The State filed a response on January 28, 2010, arguing that Holliday’s signed guilty-plea agreement indicated that he had two prior felony convictions. Thus, the State argued that he was properly sentenced upon conviction of second-degree sodomy, a Class B felony, and first-degree sexual abuse, a Class C felony. Pursuant to § 13A-5-9(b), Ala.Code 1975, upon conviction of the Class C felony with two prior felony convictions, his sentence should be for a Class A felony and, upon conviction of a Class B felony with two prior felony convictions, his sentence was to be between 15 and 99 years. Moreover, the State argued, even if the prior convictions were improperly applied, his sentence for the second-degree-sodomy conviction was within the statutory range.

A hearing was held on July 20, 2010, concerning Holliday’s petition. During the hearing, Holliday requested that he be assigned counsel, and the circuit court stopped the proceedings and appointed counsel to represent Holliday. When the proceedings continued, the following transpired:

“THE COURT: There was an indication on the sentencing order that he had two priors, and his pre-sentence investigation indicates at least three, but I cannot tell which of these three indicates — his assault got a pardon in February of '05. And he had two felonies, a battery and felony burglary, back in '86.
“Are those the two you’re saying was nolo contendere? No?
“[Defense counsel]: No, sir. That was the 1990 conviction for burglaries that was pled as a nolo contendere in Florida. But if you’ll look on that pre-sentence report, it’s a little sketchy because all that it says is burglary with an ‘F’ beside it in parentheses and battery with an ‘F’ beside it in parentheses.
“The State has provided me with a copy of the NCIC [National Crime Information Center] report on — I guess it’s NCIC. It’s one of the criminal background checks that they do when they’re investigating criminal histories. And it indicates and the dates reflect a 9/20/86 arrest on those charges.
“But further review of that record indicates that the battery was actually a misdemeanor, but that the burglary was a felony.
“The disposition on that charge, on the felony charge, says convicted. It does not indicate the length of his confinement. So it’s a little bit of a — but it does indicate — it says, level-felony — on the disposition side it says, level, 1-e-v-e-1, level-felony; disposition, convicted. But the number of years that he got is not listed on that report.
“THE COURT: So we know that there’s one prior adult felony conviction that indicates on his NCIC or the Alabama Crime Information System record?
“[Defense counsel]: That’s correct. Short of me asking that the Court — I mean that the DA’s office get a certified copy of that, I don’t have any way to dispute what’s in the report.
“[Prosecutor]: Judge, the State’s position is that we’re going to rely on the agreement that he signed that showed two prior felonies. He had a chance to look over the pre-sentence investigation at the time of his sentencing which shows three prior felony convictions.
“Even if he can show that one was a nolo plea and that one was pardoned, that still leaves him with at least one prior felony conviction that he was aware of at the time of sentencing. And with the charge of sodomy being a B felony and one prior gives him a range of ten to ninety-nine years on it. The sex abuse 1st being a C felony with one prior gives him a range of two to twenty. So the sentence that he was given in the present case is within the range.
“And under Rule 32 it’s the burden of the petitioner, has the burden of proof of showing that he doesn’t have these felony convictions. And, you know, with him agreeing that this was correct at the time of his sentencing, we’re going to rely on this, and our agreement at the time will stand on the sentence at sentencing was within the range and the jurisdiction was proper, the Court was proper to give the sentence that it did.”

(R. 5-7.)

Thereafter, the circuit court asked Hol-liday if “[a]fter having an opportunity to speak with [defense counsel], are you now satisfied that it falls within the range of punishment, the proper range of punishment?” (R. 8.) Holliday answered affirmatively. The case-action summary reveals that, following the hearing, the circuit court denied the petition, finding that it lacked merit because Holliday’s sentence fell within the proper statutory range.

On appeal, Holliday argues that the circuit court erroneously determined that the use of improper prior convictions to enhance his sentence constituted harmless error.

The State on appeal concedes that this cause is due to be remanded because the two prior felony convictions cited by Holliday as having been used to enhance his sentences were, in fact, improperly used for purposes of enhancement. Because the record revealed that Holliday’s prior burglary conviction from Jefferson County had been pardoned and his civil and political rights restored, it should not have been used to enhance his sentence under the Alabama Habitual Felony Offender Act.

“ ‘Here, the pardon restored not only the appellant’s civil and political rights, but also removed any legal disabilities incurred as a result of his prior felony convictions. Thus, the trial court erred in considering evidence of the pardoned convictions for enhancement purposes. See, e.g. Murray v. State of Louisiana, 347 F.2d 825 (5th Cir.1965). As this Court held in Love v. State, 681 So.2d 1108, 1109 (Ala.Cr.App.1996):
“ ‘ “ ‘Since the first sentence imposed on [the defendant] was invalid, the trial court had not only the power, but the duty, to sentence [the defendant] as required by law. See, Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947).”””

Ex parte Casey, 852 So.2d 175, 180-81 (Ala.2002).

Moreover, a conviction resulting from a plea of nolo contendere may not be used for sentence enhancement under the Alabama Habitual Felony Offender Act. See McCray v. State, 738 So.2d 911, 916 (Ala.Crim.App.1998) (“McCray contends that his sentences were improperly enhanced under the Habitual Felony Offender Act by the use of three prior felony convictions in the State of Florida, which, he says, were based upon nolo contendere pleas. McCray is correct. The Alabama Supreme Court has held that a conviction based upon a plea of nolo contendere cannot be used in Alabama to enhance punishment under the Habitual Felony Offender Act. Ex parte Jenkins, 586 So.2d 176, 177 (Ala.1991). See also, e.g., Kain v. State, 700 So.2d 355, 356 (Ala.Cr.App.1996); McHarris v. State, 678 So.2d 259, 260 (Ala.Cr.App.1996).”). See also McGowan v. State, [Ms. CR-09-0411, November 5, 2010] — So.3d -, -(Ala.Crim.App.2010) (“The certified copies of the convictions in State’s Exhibits # 3 and # 4 indicate that McGowan entered pleas of ‘no contest’ in those cases. Therefore, those convictions could not properly be used to enhance McGowan’s sentence. See Buckner v. State, 632 So.2d 974 (Ala.Crim.App.1993).”).

A review of the hearing indicates that Holliday was sentenced pursuant to the Alabama Habitual Felony Offender Act for having two prior felony convictions as to each current conviction. Although the National Crime Information Center and presentence investigative reports discussed at the hearing indicate that Holli-day had three prior convictions, there was discussion implying that one of the convictions—the conviction for battery—was a misdemeanor. It is unclear whether the remaining two convictions are due to be eliminated from enhancement consideration as a result of one being pardoned and one being the result of a nolo contendere plea or whether the misdemeanor offense was the prior conviction subject to the nolo contendere bar. Because Holliday’s sentence may not fall within the statutory range, this matter may effect the circuit court’s jurisdiction. “We are required to notice an illegal sentence and remand to the sentencing court for a proper sentence. See, e.g., Kennedy v. State, 929 So.2d 515, 523 (Ala.Crim.App.2005); and Mosley v. State, 986 So.2d 476 (Ala.Crim.App.2007).” Glass v. State, 14 So.3d 188, 194 (Ala.Crim.App.2008). “Matters concerning unauthorized sentences are jurisdictional....” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). “Indeed, the illegality of a defendant’s sentence is a ground specified in Rule [32], Ala.R.Crim.P., for a collateral post-conviction remedy.” Ex parte Brannon, 547 So.2d 68 (Ala.1989) (wherein Brannon claimed that he had been improperly sentenced under the Alabama Habitual Felony Offender Act).

Therefore, this case is due to be remanded to the circuit court for resentenc-ing pursuant to the Alabama Habitual Felony Offender Act and this opinion. If the circuit court determines that a hearing should be held to effectuate this resentenc-ing, the State may introduce evidence of any proper prior convictions, after notifying Holliday, even if these prior convictions were not used for enhancement purposes at his original sentencing. Barr v. State, 4 So.3d 578, 582-83 (Ala.Crim.App.2008), quoting Perry v. State, 861 So.2d 1, 3 4 (Ala.Crim.App.2002), quoting in turn Clements v. State, 709 So.2d 1321 (Ala.Crim.App.1997) (“ ‘ “ ‘If, for whatever reason, another sentencing hearing is required and the State had notified the defendant of its intent to proceed under the HFOA at the previous sentencing hearing, then the State can re-notify the defendant of its intent to proceed under the HFOA and can notify the defendant that it will attempt to prove all previous felony convictions that the State is aware of, regardless of whether the State had attempted to prove those particular convictions at the previous sentencing hearing.’ ” ’ ”). A return to remand shall be made to this court within 35 days of this opinion.

REMANDED WITH DIRECTIONS.

WELCH, P.J., and WINDOM and KELLUM, JJ., concur.

      . The record indicates that Holliday was also convicted of third-degree domestic violence; however, he does not challenge that conviction in his Rule 32 petition.

      . The above cited discussion indicates that Holliday was arrested in 1986 and convicted in 1990 as to two of the prior offenses.


text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.215(b)(10).
    No. SC10-1867.
    Supreme Court of Florida.
    Feb. 24, 2011.
    Katherine Eastmoore Giddings, Chair, Florida Rules of Judicial Administration Committee, Akerman Senterfítt, Tallahassee, FL, and John F. Harkness, Jr., Executive Director and Jodi Beth Jennings, Bar Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

On its own motion, the Court amends Florida Rule of Judicial Administration 2.215, Trial Court Administration. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(g)(1).

Florida Rule of Judicial Administration 2.215(b)(10) establishes the requisite minimum felony trial experience and educational training of circuit court judges necessary to preside over capital cases, and the responsibility of the chief judge in assigning capital cases. In In re Amendments to Florida Rule of Judicial Administration 2.215, 978 So.2d 805 (Fla.2008), the Court amended subdivision (b)(10)(C) to clarify when a circuit judge must take the capital case refresher course to remain in compliance with the rule.

As indicated by the 1997 Court Commentary to then-numbered Florida Rule of Judicial Administration 2.050, the Court intended that the three-year judicial education reporting period be the time frame in which a judge could take the capital refresher course in order to remain qualified to preside over death penalty cases. The Court’s amendment to rule 2.215 as set out in the appendix to this opinion returns subdivision (b)(10)(C) to the original period contemplated when the Court first amended the rule to include the refresher course requirement. See In re Amendment to the Fla. Rules of Judicial Administration, Rule 2.050(b)(10), 701 So.2d 864, 865 (Fla.1997).

Accordingly, we amend Florida Rule of Judicial Administration 2.215 as reflected in the appendix to this opinion. New language is indicated by underscoring and deletions are indicated by struck-through type. The amendment shall become effective immediately upon release of this opinion. However, because the Court did not publish the amendment for comment prior to its adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

RULE 2.215. TRIAL COURT ADMINISTRATION

(a) [No Change]

(b) [No Change]

(1) — (9) [No Change]

(10)

(A)-(B) [No Change]

(C) Following attendance at the “Handling Capital Cases” course, a judge shall remain qualified to preside over a capital case for three calendar — years)-and may malntain-thab-qualification by attending a “Capital Case Refresher” course once during each following-three-year period of the subsequent continuing judicial education (CJE) reporting periods. A judge who has attended the “Handling Capital Cases” course and who has not taken the “Capital Case Refresher” course within three-years any subsequent continuing judicial education reporting period must requalify to preside over a capital case by attending the refresher course.

(D) [No Change]

(c)-(i) [No Change]

      .The Court's amendments also reorganized rule 2.215(b)(10) by separating the requirements for trial court judges to serve in capital cases into subdivisions, clarifying that the judge must have presided for a minimum of six months in a felony division, adding the alternative of presiding in a division that includes felony criminal cases, and allowing for waiver of the requirements. In re Amendments to Fla. Rule of Judicial Admin. 2.215, 978 So.2d at 805.

      . The Florida Rules of Judicial Administration were renumbered, effective September 21, 2006. In re Amendments to the Fla. Rules of Judicial Admin.—Reorganization of the Rules, 939 So.2d 966, 966-967 (Fla.2006). Rule 2.050 became rule 2.215.

      . An original and nine paper copies of all comments must be filed with the Court on or before April 25, 2011, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. Electronic copies of all comments also must be filed in accordance with the Court’s administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004) (on file with Clerk, Fla. Sup. Ct.).


text:
    SOUTHERN-OWNERS INSURANCE COMPANY, a foreign corporation, Appellant, v. Kevin LOGSDON and Diane Logsdon, Appellees.
    No. 4D11-1775.
    District Court of Appeal of Florida, Fourth District.
    Nov. 30, 2011.
    Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for appellant.
    Ryan Sherman and Lauren Tow of Sherman Law, P.A., Miami, for appellees.
   PER CURIAM.

We affirm without opinion all issues raised on appeal, except the award of attorney’s fees. We dismiss the portion of the appeal regarding the award of attorney’s fees as the order granting entitlement to fees is not appealable. Winkelman v. Toll, 682 So.2d 130 (Fla. 4th DCA 1994).

POLEN, GROSS, and CONNER, JJ„ concur.


text:
    1000 FRIENDS OF FLORIDA, INC., and Sierra Club, Appellants, v. PALM BEACH COUNTY and Rinker Materials of Florida, Inc., d/b/a Cemex, Appellees.
    No. 4D10-2290.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied Jan. 10, 2012.
    Robert N. Hartsell and Richard Grosso of Everglades Law Center, Fort Lauder-dale, for appellants.
    Robert P. Banks and Leonard Berger, Senior Assistant County Attorneys, West Palm Beach, for appellee, Palm Beach County.
    Larry A. Klein and Martin J. Alexander of Holland & Knight LLP, West Palm Beach, for appellee, Rinker Materials of Florida, Inc., d/b/a Cemex.
   PER CURIAM.

Based on 1000 Friends of Florida, Inc. v. Palm Beach County, 69 So.3d 1123 (Fla. 4th DCA 2011), we reverse the final judgment in favor of appellees. Although there was some evidence that the proposed mine might support agricultural activities, this was a tangential, collateral benefit. The permit provided no benchmarks to insure that an agricultural use would be consistent with the requirement of the policy in the comprehensive plan that mining be permitted “only to support public roadway projects or agricultural activities.” Id. at 1125. We remand to the circuit court with instructions to declare the development order inconsistent with the comprehensive plan and to enjoin enforcement of the order.

STEVENSON, GROSS and CONNER, JJ., concur.


text:
    Sally VELEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Strike Industries, Inc., Appellees.
    No. 1D11-3850.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2011.
    Sally Velez, pro se, Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
   PER CURIAM.

The claimant seeks review of an order of the Unemployment Appeals Commission which found her to be disqualified from receipt of benefits. The claimant did not appear at the hearing before the appeals referee and the employer presented evidence. The appeals referee found for the claimant based on that evidence but the UAC disagreed and reversed. In this appeal, the claimant argues that she did not receive proper notice of the hearing before the appeals referee. The Commission moves this court to relinquish jurisdiction to it so it can remand to the appeals referee to make findings regarding notice to the claimant regarding the hearing.. If the claimant did not receive notice, she lost the opportunity to present evidence which might have led to a different result before the Unemployment Appeals Commission. Even if the appeals referee finds that the claimant did receive proper notice, such finding should be included in an amended UAC order. Accordingly, we treat the motion to relinquish jurisdiction as a concession of error and reverse and remand to the Commission for further proceedings. See Stacey v. Department of Professional Regulation, Board of Nursing Home Administrators, 547 So.2d 241 (Fla. 1st DCA 1989).

BENTON, C.J., HAWKES and WETHERELL, JJ., concur.


author: WARNER, J.

text:
    SPCA WILDLIFE CARE CENTER, Appellant, v. George ABRAHAM and Albert O. Cheval, Appellees.
    No. 4D10-1169.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Gregory S. Hansen and Stephen P. Heu-ston of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for appellant.
    No brief filed for appellees.
   WARNER, J.

Appellant, SPCA Wildlife Care Center, timely appeals a final order determining that a residuary clause in a will was invalid. It complains that the trial court erred in sua sponte determining that the residuary clause of the will failed and that the residue of the testamentary trust would pass by intestacy instead of to a charitable organization for the benefit of animals. Because the court ruled on a matter not raised by the parties and failed to conduct an evidentiary hearing to permit the parties to present evidence on the issue, we agree that the court erred. We thus reverse.

The decedent, Mary Ericson, died in 1991. The decedent’s will contains a Testamentary Trust, providing for Emma Brown as the life income beneficiary. Thereafter, in Article Six, Paragraph C, the will provided that “[u]pon the death of Emma Brown, this share of the trust estate shall be distributed outright and free of trust to the International Wildlife Society.”

In 2007, the Co-Trustees of the trust, George Abraham and Albert Cheval, filed a Joint Petition to Determine Beneficiaries, asserting that after conducting a diligent search, they could not identify any entity or organization known as the “International Wildlife Society.” The Co-Trustees stated their belief that the proper entity to take the assets of the trust upon the death of Emma Brown would be “the Humane Society of Broward County, or a similar organization with a no-kill policy.” In support of the petition, the Co-Trustees filed the affidavits of J. Peter Friedrich, Jr., and Emma Brown.

J. Peter Friedrich, Jr., the attorney who prepared the decedent’s will, attested that the will was a “death bed” type of will that was prepared quickly. He later discovered there was no such entity known as the International Wildlife Society. Instead, the term “International Wildlife Society” was a combination of the names of two animal welfare organizations, but was not itself any specific entity or organization. The decedent passed away prior to making any change in her will denominating a true entity or organization to receive the trust estate upon the death of Emma Brown.

Emma Brown, a close friend of the decedent and the lifetime income beneficiary of the trust, attested that “it was the intent of the decedent, Mary Ericson, to have the trust assets distributed to a local Broward County, Florida benevolent animal organization which would attempt to aid and care for animals and not consider destruction of animals except as a last resort.” Brown further attested that the decedent “often spoke of the Humane Society [of] Broward County.”

Several organizations were notified of the petition and were permitted to file responses as to whether they should be considered to receive the assets of the testamentary trust under the residuary clause set forth in the will. The appellant, SPCA Wildlife Care Center, filed a response, asserting that the assets of the testamentary trust should be distributed to it, based upon the cy pres doctrine. Other interested parties filed responses as well.

In November 2009, the trial court held a hearing on the Co-Trustees’ Joint Petition to Determine Beneficiaries. The trial court entered an order on the Co-Trustees’ Joint Petition, stating in pertinent part:

ORDERED AND ADJUDGED that the distribution pursuant to the residual clause of the Last Will and Testament of Mary Ericson and Article Six C distributing the residue through a testamentary trust fails and the property shall pass to those persons, including the state, and in such shares as would succeed to Mary Ericson’s intestate estate under the laws of Florida.

(emphasis added).

The Co-Trustees moved for clarification and for rehearing, arguing that their petition requested only that the court enter an order determining what would occur upon Emma Brown’s death. Instead the order could be construed as causing Emma Brown’s lifetime distribution to fail. If it were truly the intent of the court to cause Emma Brown’s lifetime interest to fail, this would be error and a violation of due process. SPCA joined in the Co-Trustees’ Motion for Rehearing and further requested “that the Court grant a rehearing whereby evidence can be submitted to establish the intent of ... Mary Ericson as to her naming the International Wildlife Society as the residuary beneficiary of her testamentary trust.”

The trial court held a hearing on the Co-Trustees’ Motion for Rehearing, but there is no transcript of that hearing in the record. Following the hearing, the trial court entered an Amended Order on the joint petition to determine beneficiaries. The Amended Order contains a slight difference from the original order, providing that “the distribution pursuant to the residual clause of the Last Will and Testament of Mary Ericson and Article Six C distributing the residue of the testamentary trust fails and the property shall pass to those persons, including the state, and in such shares as would succeed to Mary Ericson’s intestate estate under the laws of Florida.” (emphasis added). The Amended Order also states that the matter was before the court sua sponte. From this order, SPCA appeals.

On appeal, SPCA first argues that the trial court violated its right to due process by adjudicating an issue not presented by the pleadings or noticed to the parties and, thus, lacked jurisdiction to enter the Amended Order on the Co-Trustees’ Joint Petition.

“Procedural due process requires both fair notice and a real opportunity to be heard.” Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth, 795 So.2d 940, 948 (Fla.2001). “It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.” Neumann v. Neumann, 857 So.2d 872, 373 (Fla. 1st DCA 2003). Therefore, where “an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.” Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957).

Here, the issue of the validity or possible failure of Article Six, Paragraph C, of Mary Ericson’s will was not raised by the pleadings or noticed for hearing. Instead, the issue raised by the Co-Trustee’s petition was simply for the court to determine the proper animal organization that would be the beneficiary of the testamentary trust upon the death of the income beneficiary, in light of the fact that the designated charitable donee was a non-existent entity.

In the present case, the trial court violated the parties’ right to due process by adjudicating that the relevant will provision failed, even though that issue was not presented by the pleadings or noticed by the parties. Further, although no transcript has been provided, it is apparent from the language of the trial court’s orders that the hearing was non-evidentiary and that the trial court raised the issue sua sponte. Thus, Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979), does not require an affirmance. See Seal Prods. v. Mansfield, 705 So.2d 973, 975 (Fla. 3d DCA 1998) (rule of Ap-plegate applies only to the failure of an appellant to provide the transcript of a trial or other evidentiary proceeding where consideration of the evidence was necessary for decision of the issue presented on appeal).

To be sure, a trial court may sua sponte raise the question of whether a will provision is invalid and thus a disposition should pass by intestacy. However, the issue can be decided only after all parties receive appropriate notice and an opportunity to be heard, including the opportunity to present evidence in support of their position.

In its second issue, SPCA contends that the trial court erred in failing to make any finding regarding the applicability of the cy pres doctrine to effectuate the decedent’s charitable intent as expressed in her will. To do so, the trial court should have held an evidentiary hearing at which any interested parties could present evidence on the application of the cy pres doctrine.

Where the trial court’s decision is based on the interpretation of the language of a will, the standard of review is de novo. Timmons v. Ingrahm, 36 So.3d 861, 864 (Fla. 5th DCA 2010). The testator’s intent is the polestar that guides a court’s interpretation of a will. Pajares v. Donahue, 33 So.3d 700, 702 (Fla. 4th DCA 2010); see also § 732.6005(1), Fla. Stat. (“The intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions.”). “[0]nce the intent of the testator is ascertained, the entire will should be considered and construed liberally to effectuate the testator’s intent.” McKean v. Warburton, 919 So.2d 341, 344 (Fla.2005) (citation omitted). Intestacy is not favored where the will can be construed to lead to a valid testamentary disposition. Dutcher v. Estate of Dutcher, 437 So.2d 788, 789 (Fla. 2d DCA 1983). Where there is an ambiguity in a will, extrinsic evidence is admissible to effectuate the true dispositive intent of the testator. Id.

The cy pres doctrine is the principle that equity will make specific a general charitable intent of a settlor, and will, when an original specific intent becomes impossible or impracticable to fulfill, substitute another plan of administration which is believed to approach the original scheme as closely as possible. Christian Herald Ass’n v. First Nat’l Bank of Tampa, 40 So.2d 563, 568 (Fla.1949). The doctrine is often applied where the named beneficiary is a corporation or institution that has ceased to exist at the time of the testator’s death. See, e.g., Lewis v. Gaillard, 61 Fla. 819, 842-43, 56 So. 281, 288 (1911) (applying the cy pres doctrine and holding that the Florida State College for Women was entitled to receive income from the testator’s estate, even though the testator’s will named the college’s predecessor institution, West Florida Seminary, as the beneficiary); Christian Herald, 40 So.2d at 568 (holding where testator devised property to dissolved charitable corporation, the successor in interest of the dissolved corporation became entitled to such property under the cy pres doctrine). Florida courts have held that “the misnomer of a devisee will not cause the devise to fail where the identity of the devisee can be identified with certainty.” Humana, Inc. v. Estate of Scheying, 483 So.2d 113, 114 (Fla. 2d DCA 1986). The cy pres doctrine, however, does not apply when the provisions of the will can be carried out, such as where the will provides an alternative that can be performed. See Jewish Guild for the Blind v. First Nat’l Bank in St. Petersburg, 226 So.2d 414, 416 (Fla. 2d DCA 1969); see also Sheldon v. Powell, 99 Fla. 782, 794, 128 So. 258, 263 (1930).

In the present case, the trial court erred in sua sponte determining that the residue of the testamentary trust would pass by intestacy instead of to a charitable organization for the benefit of animals. The hearing was not scheduled as an evi-dentiary hearing, and the only extrinsic evidence in the record on the issue of the decedent’s testamentary intent consists of the affidavits of the income beneficiary and the attorney who prepared the will. Those would suggest that the court could fashion an alternative plan to effectuate the intent of the testator, where the testator’s intent to provide for a charitable bequest to animals, and not to benefit any relatives or other parties, was express. Thus, there was not any evidentiary support for the trial court’s conclusion that the residuary clause in Article Six, Paragraph C, of the will should fail.

From the language of the will and the affidavits in the record, it appears that the decedent had a general charitable intent for the residue of her testamentary trust to pass to a charitable organization for the benefit of animals. Even if it cannot be determined which organization the testator had in mind, the interested parties should have the opportunity to present evidence to demonstrate that the cy pres doctrine should apply and permit distribution to a claimant or claimants which can fulfill the original intent of the bequest as closely as possible. Based on the foregoing, we reverse and remand for an evidentiary hearing.

Reversed for further proceedings in accordance with this opinion.

POLEN and LEVINE, JJ., concur.

      . The two wildlife organizations mentioned in the record with the most similar names were the International Wildlife Conservation Society and the Wildlife Society.

      . "Cy pres” is defined as "[t]he equitable doctrine under which a court reforms a written instrument with a gift to charity as closely to the donor's intention as possible, so that the gift does not fail." Black’s Law Dictionary 415 (8th ed. 2004).

      . Presumably, this change was meant to eliminate any potential concerns as to whether the order would affect Emma Brown’s interest as the life beneficiary. Following the entry of the Amended Order, the Co-Trustees filed a "withdrawal” of their motion for rehearing.

      . Although the Co-Trustees are nominally designated as appellees in this matter, they have not filed a brief in defense of the order on appeal.


author: CIKLIN, J.

text:
    Adalberto RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4723.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Carey Haughwout, Public Defender, and Nan Ellen Foley and Ty P. Eppsteiner, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Adalberto Ramos appeals his convictions for four counts of sexual battery upon a child less than twelve years of age, one count of indecent assault, and one count of lewd or lascivious molestation. Ramos raises three points on appeal: 1) the trial court abused its discretion in denying his motion for continuance; 2) the trial court erred in summarily denying his motion for disqualification; and 3) the trial court erred in denying his motion for judgment of acquittal on the indecent assault charge.

We find that the trial court acted within its discretion in denying Ramos’s motion for a continuance and that the motion for disqualification was legally insufficient. We agree, however, that the trial court erred in denying Ramos’s motion for judgment of acquittal on the indecent assault count because the evidence at trial was insufficient to prove the commission of the crime during the period alleged in the information. Accordingly, we reverse the conviction and sentence for indecent assault. We affirm the remaining convictions and sentences.

Facts

Ramos was charged by information with four counts of sexual battery upon a child less than twelve years of age (counts IIV), one count of indecent assault (count V), and one count of lewd or lascivious molestation (count VI). Ramos was charged with having sexually abused the victim on multiple occasions between September 1, 1999, when the victim was eight years old, and May 13, 2003, just before the victim’s twelfth birthday.

Prior to trial, Ramos changed his attorney at least four times. The defense counsel who represented Ramos at trial, was hired sometime between July 10, 2009 and August 20, 2009. On August 31, 2009, defense counsel filed an amended motion to have Ramos declared indigent for costs. The trial court granted this motion on September 2, 2009.

On Thursday morning, October 15, 2009, the trial court held a calendar call to determine if the parties were ready for trial that was scheduled for the following Monday. The trial judge noted that this was the fifth time that the case had been set for trial and asked defense counsel if he was ready. Defense counsel responded that he was not ready as there were “paperwork” problems with the Justice Administrative Commission (“JAC”) surrounding the costs for deposition transcripts taken by previous counsel. The state had no objection to a continuance.

The trial court noted that Ramos had been in custody for a year and a half, and that Ramos “needs his day in court.” The trial court stated that it was going to leave the trial on for the following Monday and suggested that defense counsel call the JAC and use the fact that the trial was set as leverage. The trial court offered to call the JAC right there during the hearing, but defense counsel asked to handle it himself from his office.

On the following Monday afternoon, just prior to jury selection, defense counsel told the trial court that he had obtained two of the deposition transcripts, but that he had been unable to get two others, including the deposition transcript of the victim. Defense counsel also explained that he had been unable to depose two of the state’s potential witnesses because of the “indi-gency problem.”

Jury selection continued until 8 p.m. that evening. At the conclusion, defense counsel noted that because of the late hour, he had been unable to pick up the additional deposition transcripts and was scheduled to be in front of another judge the following morning. The trial judge asked defense counsel if he could make an opening statement without considering the deposition transcripts, and defense counsel replied, “Yes, I wouldn’t need them.”

The following morning, before opening statements, Ramos filed a written and verified motion to disqualify the trial judge. The motion alleged that the court’s failure to grant a continuance “along with [the court’s] demeanor with undersigned counsel ha[d] caused the Defendant to reasonably fear that he [would] not get a fair and impartial trial.” The trial court found that the motion was legally insufficient and summarily denied it.

By the time the trial court ruled on the motion for disqualification, it was already 1:30 p.m. At that point, the trial court asked defense counsel if he had been able to obtain the remaining deposition transcripts. Defense counsel replied that neither he nor anyone from his office had been able to retrieve it. The prosecutor was able to locate a copy of the deposition transcript and make copies for defense counsel. The trial court suggested that both parties make their opening statements and the state possibly begin its direct examination of the alleged victim while the copies were being prepared. The court would then give defense counsel time to review the deposition transcript before he cross-examined the witness. The trial court asked defense counsel if that was a “reasonable plan,” to which he replied, ‘Tes, sir.”

After the state completed its direct examination of the alleged victim, the court took a twenty-minute recess for defense counsel to read the deposition transcript. Defense counsel then cross-examined the witness. After the cross-examination, the trial judge asked defense counsel if he was satisfied with his cross. Defense counsel explained that he did the “best [he] could under the circumstances” and reiterated that he was given just twenty minutes before his cross — enough time to “breeze through it.” The court asked if the defense suffered any prejudice. At that time, defense counsel could think of only one possible question that Ramos had wanted him to ask. The trial court then gave defense counsel and Ramos another fifteen minutes to once again review the deposition transcript to determine if they wanted to ask any further questions. After defense counsel had a chance to review the deposition once more with Ramos, the trial judge asked him if there had been any prejudice with regard to his cross-examination of the alleged victim. Defense counsel responded in the negative and acknowledged that he had “covered everything” during his initial cross-examination.

The jury found Ramos guilty as charged on all six counts. The trial court subsequently sentenced Ramos to concurrent life sentences on the four sexual battery counts, fifteen years on the indecent assault count, and thirty years on the lewd and or lascivious molestation count.

Motion for Continuance

Ramos argues on appeal that the trial court erred in denying his motion for a continuance because JAC funding issues resulted in his counsel having inadequate time to prepare for trial. “The granting or denial of a motion for continuance is within the trial court’s discretion. Denial of a motion for continuance should not be reversed by an appellate court unless there has been a palpable abuse of this judicial discretion that clearly and affirmatively appears in the record.” D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003) (citations and quotation marks omitted).

In Lawson v. State, 884 So.2d 540 (Fla. 4th DCA 2004), we adopted the following language from McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986):

While criminal defendants have the right to a reasonable opportunity to select and be represented by chosen counsel, and the right to a preparation period sufficient to assure at least a minimal quality of counsel, the right is not absolute but at some point must bend before countervailing interests involving effective administration of the courts. Thus, when a defendant asks for a continuance on the eve of trial in order to allow time for recently retained counsel to prepare, the court must balance that request against many other factors....

Id. at 545 (quoting McKay, 504 So.2d at 1282).

In Lawson, we affirmed the denial of a motion for continuance, where the defendant had delayed the commencement of his trial on multiple occasions by discharging one attorney and causing another to withdraw. Id. at 546. In affirming the denial of the motion for continuance, we wrote:

Had [the defendant] not repeatedly discharged his prior attorneys or caused them to withdraw, none of whom the court found were rendering ineffective assistance, there would have been ample time to prepare. [The defendant] played a prominent role in shortening the preparation time for trial.... [The defendant] reached the point where his right to adequate time for preparation for trial is counterbalanced by the right to the effective administration of justice. His own actions were responsible for the lack of adequate preparation time, if any.

Id.

Likewise, here we conclude that no palpable abuse of judicial discretion has been shown. Ramos changed his defense counsel at least four times while his case was pending, with his last change of counsel occurring two to three months before the actual trial date. There is no record evidence showing that any of Ramos’s previous attorneys had provided ineffective assistance. The defense had already moved for four continuances to prepare for trial. Thus, just as in Lawson, Ramos played a prominent role in shortening the preparation time for trial here.

We also reject the argument that “paperwork” problems with the JAC limited defense counsel’s ability to prepare for trial sooner. Ramos hired defense counsel at least two months before the scheduled trial date. The trial court granted defense counsel’s amended motion to have Ramos declared indigent for costs on September 2, 2009. Yet, defense counsel waited six weeks until a status conference a few days before trial to inform the trial court of any funding issues. Furthermore, at the status conference, the trial court offered to call the JAC right there during the hearing, but defense counsel asked to handle it himself from his office.

Finally, defense counsel acquiesced to the trial court’s suggestions with how to proceed with the trial while waiting for the deposition transcripts to become available. Defense counsel acknowledged that he would not need the deposition before making his opening statements. Defense counsel also did not object to the trial court’s suggestion that the state be permitted to proceed with direct examination of the alleged victim while the copy of her deposition transcript was being prepared. Given defense counsel’s assent to the trial court’s proposal as to how to proceed, we cannot say that it was unreasonable for the trial court to conclude that its proposed solution would substantially reduce any likelihood of prejudice caused by denial of the motion for continuance.

Just as in Lawson, Ramos “reached the point where his right to adequate time for preparation for trial is counterbalanced by the right to the effective administration of justice.” See Lawson, 884 So.2d at 546. His own actions and those of his private counsel of choice were responsible for the lack of adequate preparation time, if any. Thus, we conclude that there is no palpable abuse of discretion that clearly and affirmatively appears in the record, and we affirm the denial of Ramos’s motion for continuance.

Motion for Disqualification

Ramos argues that the trial court erred in denying his motion to disqualify the trial judge. Ramos contends that the motion was legally sufficient in that it alleged that the trial judge’s demeanor, along with the denial of a continuance, caused him to reasonably fear that he would not receive a fair trial. We disagree.

“Allegations in a motion to disqualify are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law.” Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002). “Whether the motion is legally sufficient requires a determination as to whether the alleged facts [which must be taken as true] would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Id.

First, the trial court’s denial of a continuance is not a sufficient legal ground for judicial disqualification. See Cornil v. State, 698 So.2d 522, 525 (Fla.1997) (“[A]n adverse ruling is not sufficient to establish bias or prejudice.”). Ramos argues that, just like the defendant in Zuchel, he was not alleging mere dissatisfaction with an adverse judicial ruling, but that the trial court’s denial of his motion for a continuance indicated an “unwillingness to hear [his] side of the case.” See Zuchel, 824 So.2d at 1046. This case is distinguishable from Zuchel, however, because here we have already determined that the trial court did not abuse its discretion in denying Ramos’s motion for continuance. A trial court’s ruling that is within that court’s discretion should not “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” See id.

Ramos’s other allegation that the trial judge’s “demeanor with undersigned counsel” had caused him “to reasonably fear that he [would] not get a fair and impartial trial” was also legally insufficient because Ramos failed to specifically describe any facts regarding the trial court’s demeanor. Cf. Franco v. State, 777 So.2d 1138, 1140 (Fla. 4th DCA 2001) (holding that a motion to disqualify based on allegations that a trial judge had shown “animosity and disrespect” for defense counsel was legally sufficient where the motion was supported by an affidavit of defense counsel describing specific instances in which the judge raised his voice and yelled at the attorney in open court).

In summary, the trial court correctly determined that Ramos’s motion for disqualification was legally insufficient because none of the allegations raised in the motion established an objectionably reasonable basis for Ramos to fear the judge was biased. We therefore affirm the trial court’s denial of Ramos’s motion to disqualify the trial judge.

Judgment of Acquittal on Indecent Assault Count

Our standard of review for a motion for judgment of acquittal is de novo. Robinson v. State, 57 So.3d 278, 281 (Fla. 4th DCA 2011). “In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence. A court should grant a motion for judgment of acquittal only if the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Id. (citation and quotation marks omitted).

Count V of the information alleged that Ramos had committed the crime of indecent assault on the victim on one or more occasions between September 1, 1999 and September 30, 1999. But, there “was insufficient evidence to show the commission of [an indecent assault] during the period encompassed” by count V. See Estey v. State, 751 So.2d 194, 195 (Fla. 4th DCA 2000). As such, the trial court erred in denying Ramos’s motion for judgment of acquittal on that count.

Counts V and VI were both based on Ramos allegedly touching the victim’s vaginal area in a lewd or lascivious manner. Count V (indecent assault) alleged that conduct contrary to section 800.04(1) occurred between September 1, 1999 and September 30, 1999. Count VI (lewd or lascivious molestation) alleged that conduct contrary to section 800.04(5)(a) and (b) occurred between October 1, 1999 and May 13, 2003. The Florida Legislature amended section 800.04 effective October 1, 1999 such that the crime of “indecent assault” was removed and the crime of “lewd or lascivious molestation” was added. Compare § 800.04(1), Fla. Stat. (1998); with § 800.04(5), Fla. Stat. (1999). Both statutes criminalize Ramos’s alleged conduct.

In Gamble v. State, 870 So.2d 110 (Fla. 2d DCA 2003), the Second District reversed one of two convictions where the state charged the defendant under both section 800.04(1), Florida Statutes (1998), for conduct that occurred before October 1, 1999, and under section 800.04(5)(b) for conduct that occurred between October 1, 1999 and March 30, 2000. Id. at 110-11. The court recognized that in child molestation and sexual abuse cases, there will often be vagueness with respect to the actual dates in which the crimes occurred. Id. at 111. The law will permit such vagueness for a general allegation (i.e., a single count covering a period in which one or more incidents of illegal activity is alleged to have occurred), but that “greater specificity is required as a foundation for individual counts.” Id.

The victim in this case testified that Ramos constantly sexually molested and battered her from the time she was in third grade until just before her twelfth birthday. She testified that the first inappropriate touching occurred sometime after her third grade school year had begun. During cross examination, she acknowledged that she did not remember exact dates and that it was the state that selected September 1, 1999 as the first possible date on which the indecent assault occurred. She testified that she recalled the abuse began after her sister’s godmother’s baby shower, but the state introduced no evidence as to when that baby shower occurred. This evidence was insufficient to convict Ramos of indecent assault during the time period alleged in count V. See Gamble, 870 So.2d at 111. As such, the trial court should have granted Ramos’s motion for judgment of acquittal on that count.

Conclusion

We find that the trial court did not abuse its discretion in denying Ramos’s motion for a continuance. We also affirm the trial court’s finding that Ramos’s motion for disqualification was legally insufficient. We agree with Ramos, however, that the evidence at trial was insufficient to prove the commission of an indecent assault during the period alleged in the information. We therefore reverse Ramos’s conviction for indecent assault and remand with instructions to vacate the conviction and sentence for that count only. We affirm Ramos’s remaining convictions and sentences.

Affirmed in part; reversed in part and remanded with instructions.

MAY, C.J., and STEVENSON, J., concur.

      . The record indicates that the trial court entered an order substituting defense as counsel of record on August 20, 2009. The previous attorney’s motion to withdraw indicated that defense counsel was hired around July 10, 2009. The trial was scheduled for October 19, 2009.


text:
    Richard S. HONEYCUTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5098.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Richard S. Honeycutt, Monticello, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion to correct an illegal sentence. He claims that the court illegally enhanced his aggravated battery conviction pursuant to section 775.087(1), Florida Statutes, by reason of the use of a weapon, when his aggravated battery conviction was not subject to reclassification because the use of a weapon was an essential element of the crime. However, based upon the record, the sentence was not illegally enhanced, because the use of a weapon was not an essential element in this case. We thus affirm.

Appellant was charged with attempted second degree murder. The information alleged that he used a knife and specifically referred to section 775.087(1), indicating that the state was seeking an enhancement of the sentence under that statute. At trial, the jury was instructed on the lesser offense of aggravated battery pursuant to section 784.045(l)(a)l., defining the crime as “[ijntentionally or knowingly causing] great bodily harm, permanent disability, or permanent disfigurement.” The jury was not instructed on aggravated battery pursuant to section 784.045(l)(a)2., which consists of the use of a deadly weapon. For purposes of enhancement, a special interrogatory asked the jury to determine whether the appellant used a knife during the incident, to which it answered “yes.”

Lareau v. State, 573 So.2d 813, 815 (Fla.1991), states: “[Ejection 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm, section 784.045(l)(a), when a weapon is used to commit the crime.” That is what occurred in this case.

Affirmed.

POLEN and STEVENSON, JJ., concur.


text:
    Jeremiah BRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5187.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Jeremiah Bray, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s Rule 3.800(a) motion. Appellant’s motion did not establish that the face of the record showed that his life sentence as habitual violent felony offender was illegal. To the extent appellant sought the extraordinary relief granted in Johnson v. State, 9 So.3d 640 (Fla. 4th DCA 2009), and Stephens v. State, 974 So.2d 455 (Fla. 2d DCA 2008), appellant was sentenced as a habitual violent felony offender. The sentencing provisions pertaining to habitual violent felony offenders, section 775.084(4)(b), Florida Statutes, never contained the anomalous “shall” that was the subject of Burdick v. State, 594 So.2d 267 (Fla.1992), and which formed the basis for the manifest injustice found in Johnson and Stephens. The sentencing court was not misled by the statute in effect at the time of the offense into believing that a life sentence was mandatory in appellant’s case. See § 775.084(4)(b), Fla. Stat. (1997).

Affirmed.

STEVENSON, DAMOORGIAN and GERBER, JJ., concur.