author: PER CURIAM.

text:
    Bobby Joe COSPER v. STATE of Alabama.
    CR-09-0747.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Rehearing Denied Feb. 18, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1100642.

      Matthew T. Jackson, Birmingham, for appellant.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Bobby Joe Cosper, was convicted of violating the Community Notification Act, § 15-20-20 et seq., Ala.Code 1975 (“the CNA”), by failing to give timely notice of his intent to transfer his residence, a violation of § 15-20-23, and for failing to report to law-enforcement agencies semiannually to verify his place of residence, a violation of § 15-20-24.

The State’s evidence tended to show that in 2001 Cosper pleaded guilty to two counts of second-degree rape and was sentenced to 15 years’ imprisonment. As a result of that conviction Cosper was required to register as a sex offender pursuant to the CNA. In accordance with the CNA, Cosper was required to register twice a year, to not establish any residence within 2,000 feet of a school or child care facility, and to notify the appropriate law-enforcement agency when he intended to relocate and have the agency approve the new location within 30 days of his move.

The State presented evidence indicating that Cosper was released from the Montgomery County Detention Facility on October 10, 2008, and that upon his release he registered with the Montgomery County Sheriffs Department. Cosper was photographed, fingerprinted, and completed a Form 47 — Alabama’s adult-sex-offender-registration form.

Cathy Little, an employee of the Montgomery County Sheriffs Department, testified that she had previously worked as the identification clerk for Montgomery County, that it was her duty to maintain records related to sex offenders residing within the city limits, and that she verified their addresses and their annual and semiannual verifications. Little testified that Cosper was brought to her office after he was released on October 10, 2008, and that he completed a “State 47 Form.” At that time, she said, Cosper was fingerprinted and photographed, reviewed the information regarding address restrictions for sex offenders, and executed “Form 47.” At that time Cosper indicated that he intended to reside at 1517 Buena Vista Circle in Decatur, Morgan County. After Cosper completed his paperwork, Little testified, she faxed the information to the Morgan County Sheriffs Department.

Cindy Crowell, an employee of the Morgan County Sheriffs Department, testified that on October 10, 2008, she received notification from Montgomery County that Cosper intended to reside in Morgan County. She further testified that Cosper did not report to the sheriffs office within seven days of his release from jail and that she informed Investigator Ana Franklin with the Morgan County Sheriffs Department that Cosper had failed to report.' Crowell further testified that after Cosper was arrested for failing to register he informed her that he had been living at 422 4th Avenue Southwest — a prohibited address because it was within 2,000 feet of a school.

David Williams of the Decatur Police Department testified that he worked as a sex-offender-registration agent. He explained that sex offenders first register with the Morgan County Sheriffs Department and are then directed to the City of Decatur Police Department if they live within the Decatur city limits. Specifically, he testified:

“First and foremost, they register through Morgan County and after Morgan County they’re directed to the City of Decatur if they live within the City of Decatur or our jurisdiction. When they are notified, they come to the Decatur City Police Department and we fill out the sex offender registration that we’re required to fill out by the State of Alabama to comply with the 2005 notification act and go down each and every paragraph in that, and they are reinforced. The same thing that they’ve just done at the county are reinforced [sic], and at that particular time they initial and sign where it needs to be signed. We take a second set of fingerprints and we also photograph them and maintain our register at the city level because we are required to maintain a book to be presented to any citizen that so desires to see that.”

(R. 99-100.) In late October, Officer Williams received notification from Investigator Franklin that Cosper was residing at 1517 Buena Vista Circle in Decatur. Williams traveled to that address on October 29, 2008, and discovered that Cosper had been there but that he was no longer at that residence.

On October 30, 2008, Cosper met with Investigator Ana Franklin and Officer Williams. After waiving his Miranda rights Cosper told police that he had lived at the 1517 Buena Vista Circle address from October 11, 2008, to October 14, 2008, and that he then moved in with his girlfriend, S.L., who resided at 4th Avenue Northwest in Decatur. Cosper informed the officers that he was aware that he was required to register in Morgan County and to inform the sheriff if he moved from the Buena Vista address, but that he “just wasn’t thinking straight.” (R. 228-29.) He further stated that his girlfriend “is the girl that [he] went to prison for. She is one of [his] victims in the rape second conviction. She is the victim that was fourteen at the time of the offense.” (R. 229, 235.) Cosper was arrested.

The State’s evidence further showed that a licensed home-day-care facility was operated at 207 4th Avenue Northwest— approximately 1,920 feet from 422 4th Avenue Southwest. The evidence also showed that the West Decatur Elementary School is less than 1,500 feet from the 422 4th Avenue Southwest address.

The defense presented the testimony of S.L. and S.L.’s mother. S.L. testified that she and Cosper went on a vacation during most of October 2008. She also testified that during that time she lived at 622 4th Avenue Southwest — not 422 4th Avenue Northwest. She further testified that a school is located a block from her address at 622 4th Avenue Southwest. S.L.’s mother testified that she lived at 622 4th Avenue Southwest with her husband, sons, two daughters, and grandchildren. She stated she did not know who lived at the 422 4th Avenue Northwest address. She indicated that Cosper did not live with S.L. She also testified that West Decatur Elementary School is located approximately a block from her house.

I.

Cosper first argues that the CNA is unconstitutional. Specifically, Cosper argues that the CNA violates the prohibition against ex post facto laws contained in Art. I, § 10, of the United States Constitution and that it is overbroad and imposes an excessive restraint on its face and as applied. The State asserts that Cosper failed to preserve this issue for appellate review because he failed to raise it in the circuit court.

An appellate court is limited to matters that were raised in and addressed by the trial court. Ross v. State, 581 So.2d 495 (Ala.1991); Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989).

“Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997). ‘Due process does not override the basic- law of preservation, ... and the issue must first be presented to the trial court before it will be reviewed on direct appeal.’ Boglin v. State, 840 So.2d 926, 929 (Ala.Crim.App.2002).”

Byrd v. State, 10 So.3d 624, 626-27 (Ala.Crim.App.2008).

Cosper did not challenge the constitutionality of the CNA in the circuit court. Because he did not first present this argument below, this Court may not review this issue on appeal. See Harris v. State, 794 So.2d 1214, 1223 (Ala.Crim.App.2000).

Moreover, assuming that this issue was properly preserved for appellate review, we would find no constitutional violation. This Court has previously upheld the CNA against a claim that it constitutes an ex post facto law. In Lee v. State, 895 So.2d 1038 (Ala.Crim.App.2004), this Court, relying on Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), concluded that the CNA was not an ex post facto law, either facially or as applied to the appellant in that case, who was an adult criminal sex offender. This Court held that the CNA was intended to create a civil regulatory scheme and that it. did not have any punitive effect on the appellant that would negate the legislative intent of the act. 895 So.2d at 1042-43. See Boyd v. State, 960 So.2d 717 (Ala.Crim.App.2006). See also Salter v. State, 971 So.2d 31 (Ala.Civ.App.2007).

Here, Cosper failed to present any evidence indicating that the CNA had a punitive effect on him. Consequently, Cosper failed to meet his burden of presenting substantial evidence to support his claims. See Salter, 971 So.2d at 37 (“Salter has failed to present any evidence indicating that the CNA is intended as a punitive criminal statute.... Salter has failed to present substantial evidence indicating that the residency requirements of the CNA have a punitive effect on him.”). Accordingly, even if the issue was properly .before this Court, Cosper is due no relief on this claim.

II.

Cosper next argues that the evidence was insufficient to support his convictions for violating the CNA and that the weight of the evidence was insufficient to support his convictions. Cosper preserved these claims by moving for a judgment of acquittal and for a new trial.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“ ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Aa. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Aa. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).’ Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985)].”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989). Additionally, it is well settled that “[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the jury.” Smith v. State, 698 So.2d 189, 214 (Ala.Crim.App.1996), aff'd, 698 So.2d 219 (Ala.1997).

“In Johnson v. State, 555 So.2d 818, 819-20 (Ala.Cr.App.1989), this court noted the difference in ‘sufficiency’ and “weight’ as follows:
“‘The weight of the evidence is clearly a different matter from the sufficiency of the evidence. The sufficiency of the evidence concerns the question of whether, “viewing the evidence in the light most favorable to the prosecution, [a] rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Tibbs v. Florida, 457 U.S. 31, 37, 102 S.Ct. 2211, 2215, 72 L.Ed.2d 652 (1982). Accord, Prantl v. State, 462 So.2d 781, 784 (Ala.Cr.App.1984).
“ ‘In contrast, “[t]he ‘weight of the evidence’ refers to ‘a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other.’ ” Tibbs v. Florida, 457 U.S. at 37-38 [102 S.Ct. at 2216] (emphasis added). We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial. E.g., Franklin v. State, 405 So.2d 963, 964 (Ala.Cr.App.), cert. denied, 405 So.2d 966 (Ala.1981); Crumpton v. State, 402 So.2d 1081, 1085 (Ala.Cr.App.), cert. denied, 402 So.2d 1088 (Ala.1981); Nobis v. State, 401 So.2d 191, 198 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (Ala.1981). ‘“[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.’ ” Harris v. State, 513 So.2d 79, 81 (Ala.Cr.App.1987) (quoting Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931)).[’]
“(Emphasis in original.) See Smith v. State, 604 So.2d 434 (Ala.Cr.App.1992); Pearson v. State, 601 So.2d 1119 (Ala.Cr.App.1992); Curry v. State, 601 So.2d 157 (Ala.Cr.App.1992).”

Zumbado v. State, 615 So.2d 1223, 1240-41 (Ala.Crim.App.1993).

A.

Count II of the indictment charged Cosper as follows:

“The Grand Jury of said County further charges that before the finding of this indictment, Bobby Joe Cosper, whose name is to the Grand Jury otherwise unknown, an adult criminal sex offender, having previously been convicted of two (2) counts of Rape in the Second Degree in the Circuit Court of Morgan County, Alabama (case# 52CC00-1377), did knowingly fail or refuse to submit a notice of intent to transfer his residence to 422 4th Avenue Southwest, Decatur, Morgan County, Alabama with the Sheriff of Morgan County, Alabama, thirty (30) days prior to moving to the new location, in violation of Section 15-20-23 of the Code of Alabama.”

(C. 48; emphasis added.)

Section 15-20-23, Ala.Code 1975, defines the offense for which Cosper was charged; it provides as follows:

“(a) If an adult criminal sex offender intends to transfer his or her residence to a different location, he or she shall submit a notice of intent to move to the sheriff of the county and the chief of police of the municipality in which he or she resides, and to the sheriff of the county and chief of police of the municipality to which he or she plans to move, if such are different, at least 30 days prior to moving to the new location. The notice of intent to move shall be on a form developed by the Department of Public Safety provided by the sheriff and shall include all the information required by this article for community notification. Failure to provide a timely and accurate written declaration shall constitute a Class C felony.
“(b) Notwithstanding other provisions of law regarding establishment of residence, an adult criminal sex offender shall be deemed to have established a new residence in any of the following circumstances:
“(1) Whenever that adult criminal sex offender is domiciled for three consecutive days or more.
“(2) Whenever that adult criminal sex offender is domiciled following his or her release, regardless of whether that criminal sex offender has been domiciled at the same location prior to the time of conviction.
“(3) Whenever an adult criminal sex offender spends 10 or more aggregate days at a location during a calendar month.”

The State’s evidence showed that upon arriving in Decatur, Morgan County, Cos-per resided at 1517 Buena Vista Circle. However, shortly thereafter he moved in with his girlfriend, who resided at 622 4th Avenue Southwest. Although Cosper indicated to law-enforcement officers that her house was located at 422 4th Avenue Southwest, the indictment provided sufficient notice to Cosper, and any conflicts in the evidence were for the jury. Likewise, S.L.’s testimony and her mother’s testimony that Cosper never lived at 622 4th Avenue Southwest and spent most of October 2008 traveling was for the jury to resolve.

The State presented sufficient evidence indicating that Cosper failed to notify the authorities of his intent to transfer his residence, and the trial court properly submitted the case to the jury for it to resolve any conflicts in that evidence. See Zumbado, supra. The evidence was sufficient to support the jury’s verdict as to count II of the indictment.

B.

Count I of the indictment charged that Cosper,

“an adult criminal sex offender, having previously been convicted of two (2) counts of Rape in the Second Degree in the Circuit Court of Morgan County, Alabama (case # 52CC00-1377), did knowingly fail to report semi-annually to the Sheriff of Morgan County, Alabama or the Chief of Police of Decatur, Alabama for the purpose of verifying his place of residence, in violation of Section 15-20-24 of the Code of Alabama.”

(C.R. 48; emphasis added.)

Section 15-20-24, Ala.Code 1975, defines the offense for which Cosper was charged and provides as follows:

“(a) Sixty days after an adult criminal sex offender’s most current release and, except during ensuing periods of incarceration, thereafter on the anniversary date of an adult criminal sex offender’s birthday occurring more than 90 days after the release and the date six months after the anniversary date of an adult criminal sex offender’s birthday occurring more than 90 days after the release, the Department of Public Safety shall mail a non-forwardable verification form to the address of the adult criminal sex offender. The sheriff, or chief of police where applicable, where the adult criminal sex offender resides shall be notified of the pending verification and whether the verification form was received by the adult criminal sex offender.
“(b) Within 10 days of the receipt of the verification form, the adult criminal sex offender shall present in person the completed verification form to the sheriff, or chief of police where applicable, who shall obtain fingerprints and a photograph of the adult criminal sex offender. The verification form shall be signed by the adult criminal sex offender and shall state that the adult criminal sex offender still resides at that address and that the adult criminal sex offender is in compliance with the residence restrictions established in this article. In the event the adult criminal sex offender does not receive a verification form from the Department of Public Safety, the offender must nonetheless report in person to the sheriff, or chief of police where applicable, to verify his or her place of residence within 90 days of his or her most recent release and thereafter each year within 30 days of the offender’s birthday and the date six months after the offender’s birthday.
“(c) Within 30 days of an adult criminal sex offender’s address verification, the Department of Public Safety shall, in accordance with guidelines promulgated by the Department of Public Safety, receive from the 'appropriate sheriff or chief of police verification of the adult criminal sex offender’s address. Such guidelines shall ensure that address verification is accomplished with respect to these individuals and shall require the submission of fingerprints and photographs of the individuals.
“(d) An adult criminal sex offender who fails to verify his or her place of residence in accordance with this section, provides a false statement to law enforcement in the verification process, or knowingly fails to permit law enforcement personnel to obtain fingerprints or a photograph shall be guilty of a Class C felony.”

Section 15-20-24, Ala.Code 1975, requires two different forms of address verification. The first address verification must be completed after the sex offender’s most current release. The second form of address verification is the semi-annual verification that is triggered by the anniversary of the sex offender’s birthday and the six-month anniversary of the sex offender’s birthday.

In this case, Cosper was not indicted for failing to report and to complete his “initial address verification” form as required by § 15-20-24, Ala.Code 1975. Rather, Cosper was indicted for failing to report “semiannually” as required by § 15-20-24, Ala.Code 1975. However, even if the indictment had properly charged Cosper with not reporting and completing the initial address verification form the State did not present sufficient evidence to support such a conviction. Under that section, a convicted sex offender must report either: (a) within 10 days after receiving an address verification form from the Department of Public Safety; or (b) within 90 days after the offender’s most recent release if he does not receive a verification form. See § 15-20-24(b), Ala.Code 1975. The State did not present any evidence indicating that the Department of Public Safety mailed an address verification form to Cosper or that Cosper failed to report within 10 days after receiving an address verification form.

Furthermore, if Cosper did not receive an address verification form, he had 90 days after his most recent release — i.e., until January 8, 2009 — to report and complete the initial verification form. Cosper was released from jail on October 10, 2008, and rearrested on October 30, 2008 — 20 days later. When Cosper was rearrested the 90-day period to comply with the initial address verification form requirement had not yet elapsed. In fact, Cosper had two months to comply with the statutory requirement. It appears that Cosper’s arrest for failing to initially report and verify his address was premature. The State failed to prove that Cosper had -violated the initial reporting and address verification provisions set out in § 15-20-24, Ala. Code 1975.

Neither did the State present evidence showing that Cosper failed to comply with the semiannual reporting requirement in § 15-20-24, Ala.Code 1975. Under § 15-20-24, the triggering dates for a convicted criminal sex offender’s duty to verify his residence semiannually are the anniversary of the offender’s birthday and the date six months after the offender’s birthday. Pursuant to § 15-20-24, Ala.Code 1975, a sex offender would first be required to report for a semiannual address verification: (a) within 10 days after receiving an address verification form from the Department of Public safety; (b) the anniversary of the offender’s birthday that occurs after his initial verification; or (c) the six-month anniversary of the offender’s birthday that occurs after his initial verification.

In this case, the State did not present any evidence showing that the Department of Public Safety had mailed Cosper an address verification form for a semiannual verification. More importantly, the time for Cosper to initially report and verify his address had not yet elapsed. Therefore, neither semiannual reporting requirement had been triggered at the time of Cosper’s arrest. The State failed to present sufficient evidence that Cosper violated § 15-20-24, Ala.Code 1975, by not initially reporting and having law enforcement verify his address. Cosper’s conviction for that offense is due to be reversed and a judgment rendered in Cosper’s favor.

For the foregoing reasons, we affirm Cosper’s conviction for failing to give timely notice of his intent to transfer his residence, a violation of § 15-20-23, Ala.Code 1975. We reverse Cosper’s conviction under count I of the indictment for failing to semiannually verify his place of residence, a violation of § 15-20-24, Ala.Code 1975, and direct the circuit court to render a judgment in Cosper’s favor on that charge.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

      . Cosper was also convicted of violating § 15-20-2 6(a), by knowingly establishing a residence within 2,000 feet of a school. However, Cosper does not challenge this conviction on appeal.

      . These requirements as they relate to adult criminal sex offenders are specifically set out in § 15-20-23, Ala.Code 1975.

      . The record is unclear whether the actual address where Cosper lived with his girlfriend was 422 4th Avenue Southwest or 422 4th Avenue Northwest or 622 4th Avenue Southwest.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . S.L. was one of the victims in Cosper’s second-degree-rape convictions. To protect her anonymity, we are using her initials. See Rule 52, Ala. R.App. P.

      . In fact, the Department of Public Safety was not required to send such a notification until 60 days after Cosper's most recent release, which would have been December 9, 2008. See § 15-20-24(a), Ala.Code 1975.

      . During her testimony, Ana Franklin testified that Cosper was supposed to report to the Morgan County Sheriff’s Department within seven days after his release; that that was the basis for Count I of the indictment-; and that Cosper had not registered with the Morgan County Sheriff’s Department. The reporting and address-verification requirements set forth in § 15-20-24, Ala.Code 1975, are different from the registration requirements set forth in § 13A-11-200, Ala.Code 1975. Section 13A-11-200 requires that a sex offender register with the sheriff of the county of his legal residence within seven days following his release. Although the evidence would have supported a conviction for failing to register pursuant to § 13A-11-200, Ala.Code 1975, Cosper was not charged with violating that section.

      . In fact, the Department of Public Safety was not required to do so until the anniversary date of Cosper’s birthday that occurred more than 90 days after his release or the six-month anniversary of Cosper's birthday that occurred more than 90 days after he was released. Cosper was released on October 10, 2008; he was rearrested on October 30, 2008. Therefore, at the time he was arrested, the Department of Public Safety was not yet required to send Cosper an address verification form for his semiannual verification.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Ricky Russell MARSHALL v. STATE of Alabama.
    CR-09-0263.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2011.
    Rehearing Denied Dec. 9, 2011.
    Certiorari Denied Feb. 10, 2012 Alabama Supreme Court 1110365.

      Ashley McDavid, Tuscaloosa, for appellant.
    Troy King, atty. gen., and John-Paul M. Chappell, asst. atty. gen., for appellee.
   JOINER, Judge.

Ricky Russell Marshall was convicted of discharging a firearm into an occupied building, a violation of § 13A-ll-61(b), Ala.Code 1975, and attempted murder, a violation of §§ 13A-4-2 and 13A-6-2, Ala. Code 1975. The circuit court sentenced Marshall to 16 years’ imprisonment on the discharging-a-firearm-into-an-occupied-building conviction, and to 20 years’ imprisonment on the attempted-murder conviction. Additionally, the circuit court ordered Marshall to pay a $50 crime victims compensation assessment on each count and court costs. Marshall filed a motion for a new trial, which was denied. This appeal followed.

Because Marshall does not challenge the sufficiency of the evidence, a brief recitation of the facts will suffice. Marshall and Virginia Cook are divorced and have one child (“Marshall’s child”). After her divorce from Marshall, Virginia married Billy Cook, and the couple lived in a home in Vance, with their two children and Marshall’s child. In February 2006, Marshall telephoned Cook’s house and left messages on Cook’s answering machine telling Cook to “look out” and “I’m coming.” On February 24, 2006, at approximately 10:30 p.m., Cook was in the living room of his house watching the news while the rest of the family was in their rooms asleep. As Cook watched the news, he heard a vehicle stop in front of his house. Cook walked to the front door to see why the vehicle had stopped, and he saw Marshall walking up to the door with a gun. Cook then closed the door, knelt down against the door, and tried to prevent Marshall from coming inside the home. Marshall fired approximately seven rounds through the door and into the house. Cook yelled for Virginia to telephone the police and to “get the shotgun” — even though Cook did not own a shotgun. Marshall then left.

Marshall testified that on February 15, 2006, he contacted the Department of Human Resources (“DHR”) and reported that Cook was abusing Marshall’s child. Marshall claimed that on February 24, 2006, he worked until approximately 2:00 a.m. and then a friend drove him home because his vehicle was inoperable at the time.

On appeal, Marshall contends that the circuit court erred when it denied him access to records held by the Tuscaloosa County DHR, because, he says, it violated his “Sixth Amendment due process rights by limiting [his] right to confront and cross-examine his accusers.” (Marshall’s brief, p. 9.)

The record indicates that, before trial, Marshall issued a subpoena to the Tuscaloosa County DHR requesting “any and all documents and records as they pertain to [Marshall’s child].” DHR subsequently moved for a protective order requesting that the circuit court quash Marshall’s subpoena or, in the alternative, conduct an in camera inspection of the requested DHR documents to determine whether those records contained evidence material to the case. The circuit court subsequently denied the motion to quash but granted the protective order and conducted an in camera inspection of the requested documents.

Before trial the following exchange occurred:

“[The Court]: .... [W]hat is it that you’re seeking to get from the DHR file, because that helps me narrow down as to whether I order them to produce something or not.
“[Marshall’s counsel]: Ultimately, what I’m looking for is the report by [Marshall] that he made to DHR about [Cook] on February [15, 2006].”

(R. 26-27.)

Later, the court stated:

“Now, I have a packet of DHR records that was brought to me just moments ago, and I’m going to be looking through that as we go through the opening statements to try to expedite the request of [Marshall]. Specifically, there was allegedly information from on or about February 15, 2006, that [Marshall] is seeking to discover in that material. I will try to identify that quickly, if possible, and then give some indication of whether it’s going to be produced or not.
“Now, I don’t know the case, obviously, so even if I did not produce the document I’m not necessarily saying the information is not admissible under some other theory, so don’t hesitate to correct me if I make too broad a ruling in the case, because I’m trying to say I need to rule on whether or not the DHR record in and of itself gets produced to the defense. That may or may not be indicative of whether or not [Marshall] could introduce other information regarding some reports, if that became pertinent in the case.”

(R. 130-31.) After the circuit court reviewed the DHR documents, the following exchange occurred:

“[The Court]: While we are outside the presence of the jury, let me say that I have reviewed the documents that came to me from the Department of Human Resources.
“And I reviewed each page.
“I guess the question I need to ask again is what would the Defense want from the packet? And I say that because, again, I have an obligation not to turn over sensitive, confidential Department of Human Resource documents. It certainly would be easier to do so, but that’s not consistent with my obligation and duty.
“I think I’m familiar enough with what’s in there. Just to make a more informed ruling, you mentioned yesterday that what you were looking for was a report made by [Marshall] to [DHR] on or about, if I recall, February 14th or 15th of 2006, something in that range there.
“[Marshall’s counsel]: Correct.
“[The Court]: And I will say, certainly there is such an indication in the material by the Department of Human Resources. The question that I have, I guess, is: The fact that a report was made, as I understood our discussions yesterday about potentially why the Defense would want to introduce that, would be for credibility of the alleged victim in the case, that is to say, that the alleged victim — would be in retaliation for having filed something with DHR, made up this story, because the defense is it didn’t happen, right?
“[Marshall’s counsel]: Well, we’re not saying that the shots weren’t fired. What I’m saying is my client didn’t do it.
“[The Court]: Right. Excuse me. I beg your pardon. And that’s exactly right, and I don’t mean to — and I’m not meaning to limit any defense that’s going to be put on, either. I just have to articulate for the record and also from my own judgment as to what I would be producing, because I guess I am somewhat hesitant to turn over a DHR record that has lots of information in it that may need to be redacted in certain areas as opposed to simply an acknowledgment of the fact that such a report was made in the case.
“[Marshall’s counsel]: Well, there’s—
“[The Court]: So help me understand what I should make a ruling on in the case.
“[Marshall’s counsel]: Well, I believe his file is quite extensive and he has quite a history, but what we’re really looking for is that [Marshall’s child] left his home or left the residence of [Cook] and [Virginia] on or about December the 2nd, 2005. He wrote a letter alleging abuse by [Cook] and his wife Virginia, and I believe that got back to my client and my client went to DHR and reported that. And it’s my understanding it was, like you said, sometime around February the 15th.
“I am not interested in any of the records prior to December the 2nd, 2005. I think they’re quite extensive, and I’m probably aware of most of them. But I don’t think that those are pertinent to this case. I think what’s pertinent is the report of the abuse by [Cook] and Virginia to [Marshall’s child].
“[The Court]: Well, and I will just note for the record in an inch thick of documents, there’s certainly many things that we won’t get any — we’re not even going to come near introducing the DHR records in this case. The question becomes, though, is that the Defense wants to introduce the fact that [Marshall] made a complaint to DHR about [Marshall’s child] and that that complaint was known to [Cook]. What would be the—
“[The Court]: So is it the defendant’s — is it the defendant’s position or claim that [Cook]’s credibility is at issue because of the DHR — because he made this up because he had a DHR complaint filed against him?
“[Marshall’s counsel]: Yes, sir. Yes, sir.
“[The Court]: And I’m not saying that does anything other than helps me streamline my focus of what I need to make a ruling on. So we’ll close out the record and let you talk.
“(Off record.)
“[The Court]: Can I go back on the record for a moment? And you can stay seated. I’m just going to make sure I put my thought process on the record so that it can be corrected by you in a few moments or at least explained about what my thinking and rationale is about this issue.
“We have a situation where the credibility of a witness is always for the jury to determine, and the evidence law encourages evidence to come in that goes to credibility only of a witness. And we know that the evidence law favors that and tends to encourage the introduction of evidence, if it’s available, that would go to credibility of witnesses. Once again, it’s not for the Court to make that judgment; it would be for the jury.
“So we have a situation where confidential records are delivered to the Court in response to a subpoena that are protected by various privileges — and rightly so — and I have to make a proper balancing analysis of whether or not any of those documents are produced to one side or the other, for a variety of reasons. One reason in particular is that you certainly want to encourage free exchange of information and free reporting of information to the Department of Human Resources, and it chills that or it thwarts that if we just turn over those records, because many allegations that are made prove to be substantiated. Many allegations are made that result in investigations being conducted, interviews being conducted with children, in particular, where the children have to be encouraged to speak freely and frankly and forthrightly with the interviewing parties. So, therefore, I have an absolute obligation to ensure that those documents are not later produced into proceedings that could thwart or chill that beneficial purpose of the privilege.
“Now, in this particular case, neither side would have access to these documents. Correct, [prosecutor]?
“[Prosecutor]: Yes, sir.
“[The Court]: Correct, [Marshall’s counsel]?
“[Marshall’s counsel]: Yes, sir.
“[The Court]: All right. So I have to balance the various interests involved with this observation: The witness [Cook] testified on cross-examination in response to this question, ‘Did DHR contact you on February 15th of 2006?’ The witness answered — and this is a rough transcription, by the way, in deference to the court reporter, who on very short notice has helped me prepare something.
“This may not — subject to her making sure this is exact, the witness said, ‘Not to my knowledge. I don’t have a recollection of it’ or words to that effect.
“.... And then the question again was, “You have no recollection of DHR calling you about [Marshall’s child] on February the 15th?’ ‘No, sir.’
“Now, I will say that there are documents in the DHR files that do not contradict that. Let me rephrase what I just said, because that’s a very inappropriate sentence. There are no documents in the DHR records that would prove that DHR contacted him on February 15th of 2006. Now, I’ll point out that I understood the witness’s testimony to be ‘not to my knowledge, not to my recollection,’ so I don’t know that you can say that was a denial of it. But I will say that there are no documents there that would show that DHR contacted him on February 15th, 2006 about [Marshall’s child], so I’ve found nothing that would indicate that to be the case.
“I will say that there are documents indicating that shortly thereafter he was contacted about [Marshall’s child] and about the allegations that [Marshall’s child] made. I don’t think that that’s the question asked, but in fairness to the Defense, the Defense would not know that. That is to say, you would not have access to the records or information there about the case.
“So the reason that I’m making the observation in those terms is one approach to this would be to allow the Defense to have an interview that was conducted with [Cook] shortly after February 15th, 2006 — specifically, February 17th, 2006 — to refresh his recollection.
“I will also point out that I think I had an obligation to look through there to see if there was an inconsistent statement in the case. Now, I’ve not found that, so I’ll note that for the record. Because we often have to do that with witnesses in DHR records, particularly in child molestation cases or likewise, to find that there was an inconsistency. I have not seen that in the documents, and I’ll note that for the record.
“I’m just pointing out that I don’t think that there is any means by which the Defense could obtain information about whether or not DHR contacted [Cook] about the accusation made about abuse of [Marshall’s child] before the incident, that is to say, between February the 14th, 2006 — excuse me, February 15th, 2006 and February 24th, 2006, other than through having the DHR records produced. I will say that there [are] indications in the DHR records that [Cook] was contacted by DHR about the accusation made by [Marshall’s child] between February 15th, 2006, and February 24th 2006. I’m disclosing that, because I think the appropriate approach is to say there’s no other means by which the Defense could obtain the discovery of that information.
“Now, I’m not suggesting that’s admissible yet. I’m only pointing out that rather than giving anyone these documents, which I think would be inappropriate to do so, rather than giving even the witness a document to look at that could refresh recollection, which I think in the balancing analysis would be an inappropriate thing to do when compared to the privileges that should attach to this type of investigation of child issues — I think the appropriate approach for the Court to take is to say DHR records indicate that [Cook] was contacted on or about February 17th, 2006 and interviewed about the allegations allegedly made by [Marshall’s child] in the case. Now, that’s where I think I’m.going to end up with the documents.”

(R. 247-59.) After this discussion, Virginia testified and Marshall questioned her about DHR’s coming to her house between February 15, 2006, and February 24, 2006. Virginia admitted that DHR had visited the home and interviewed the family. After the State rested its case, Marshall called Cook to testify and questioned him about DHR’s coming to his house between February 15, 2006, and February 24, 2006. Cook stated that he recalled DHR’s coming to his house, but could not recall a specific date. Marshall took the witness stand and testified that he called DHR on February 15, 2006, and alleged that Cook was abusing Marshall’s child. Although the circuit court told the parties that DHR visited the Cooks’ house between February 15, 2006, and February 24, 2006, it did not allow Marshall to inspect the DHR records pertaining to that visit.

Section 26-14-8, Ala.Code 1975, provides a list of entities to which child-abuse- and-neglect records may be made available. Section 26-14-8 provides, in pertinent part:

“(c) The Department of Human Resources shall establish and enforce reasonable rules and regulations governing the custody, use, and preservation of the reports and records of child abuse and neglect. Child abuse and neglect reports and records shall be limited to the purposes for which they are furnished and by the provisions of law under which they may be furnished. The reports and records of child abuse and neglect and related information or testimony shall be confidential, and shall not be used or disclosed for any purposes other than:
“(4) For use by a court where it finds that such information is necessary for the determination of an issue before the court;
“(f) Nothing in this section shall be construed as restricting the ability of a department to refuse to disclose identifying information concerning the individual initiating a report or complaint alleging suspected instances of child abuse or neglect, except that the department may not refuse such a disclosure in cases in which a court orders such disclosure after the court has reviewed, in camera, the record of the department related to the report or complaint and has determined that it had reason to believe that the person making the report knowingly made a false report.
“(g) Any person receiving reports or records of child abuse or neglect or related information under this section shall maintain the confidentiality of the documents and information and not disclose it except as authorized by law.
“(h) Any violation of the provision of confidentiality shall be a Class A misdemeanor.”

It is clear from the relevant portions of § 26-14-8, Ala.Code 1975, quoted above that the legislature’s intent was not only to establish a central registry for reporting instances of child abuse and neglect but also to provide for the confidentiality of those records. See Jordan v. State, 607 So.2d 383, 336-37 (Ala.Crim.App.1992) (recognizing that the primary goal of § 26-14-8, which establishes a central registry for DHR for reporting child abuse, is to provide for confidentiality). The circuit court’s in camera inspection of the DHR records and subsequent release of information it found to be material to Marshall’s defense is in keeping with the intent of the legislature.

In Russell v. State, 533 So.2d 725 (Ala.Crim.App.1988), the defendant, who was the boyfriend of the victim’s mother, was convicted of first-degree rape and first-degree sexual abuse. On appeal, Russell argued that he was entitled to inspect the entire DHR file concerning the victim. This Court rejected Russell’s argument that he was entitled to the entire DHR file. In so doing, this Court relied on the United States Supreme Court’s decision in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987):

‘“The opinions of this Court show that the right of confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. See California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970) (“[I]t is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause”); Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968) (“The right to confrontation is basically a trial right”). The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Delaware v. Fensterer, supra, 474 U.S. [15], at 22, 106 S.Ct. [292], at 296 [88 L.Ed.2d 15 (1985)]. In short, the Confrontation Clause only guarantees “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id., at [20], 106 S.Ct., at 295 (emphasis in original). See also Ohio v. Roberts, supra, 448 U.S. [56], at 73, n. 12, 100 S.Ct. [2531], at 2543, n. 12 [65 L.Ed.2d 597 (1980)] (except in “extraordinary cases, no inquiry into ‘effectiveness’ [of cross-examination] is required”).’
“Ritchie, 107 S.Ct. at 999 (emphasis and brackets in original) (footnote omitted).
“Like Alabama’s § 26-14-8, the Pennsylvania statute did not grant absolute confidentiality but provided for disclosure in certain circumstances. Therefore, Ritchie was entitled to the disclosure of information material to his defense.
“ ‘In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is “material” to the defense of the accused.
“ ‘... Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial.’ Ritchie, 107 S.Ct. at 1002.
“Additionally, the Supreme Court held that Ritchie had no right to full disclosure or inspection of the confidential files and records of the child abuse agency.
“ ‘A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files. See United States v. Bagley, 473 U.S. [667] at 675, 105 S.Ct. [3375] at [3379, (1985)]; United States v. Agurs, supra, 427 U.S. [97], at 111, 96 S.Ct. [2392], at 2401 [(1976)]. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966), this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194[, 10 L.Ed.2d 215 (1963)], it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one”).
“ ‘We find that Ritchie’s interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the CYS files be submitted only to the trial court for in camera review....
“ ‘... The Commonwealth’s purpose [in protecting its child abuse information and in uncovering and treating child abuse] would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result.’ Ritchie, 107 S.Ct. at 1003-04 (footnote omitted).”

533 So.2d at 726-28.

Like the defendants in Ritchie and Russell, Marshall was entitled only to an in camera inspection of the DHR files so that the circuit court could determine whether any of the documents were material to the defense. Marshall was not entitled to his own inspection of the DHR files pertaining to Marshall’s child, which, he says, would have established a motive for the victim to lie about Marshall’s involvement in the offense. Following the in camera inspection by the circuit court, Marshall received evidence the court deemed material to Marshall’s theory of the ease i.e., that DHR went to Virginia and Cook’s house between February 15, 2006, and February 24, 2006. Marshall was then allowed to recall Cook to the witness stand and question him about DHR’s visiting his house between February 15, 2006, and February 24, 2006. Additionally, Marshall was allowed to cross-examine Virginia about DHR’s coming to the house, and Marshall, himself, also testified regarding the allegations he made about Cook to DHR. Although Marshall correctly recognizes that he was not given an opportunity to cross-examine the witnesses to the extent that he might wish, he was afforded an opportunity for effective cross-examination, which is all that is constitutionally required. Accordingly, the circuit court did not abuse its discretion when it did not disclose the DHR records to Marshall and only provided him with information it deemed material to Marshall’s defense.

Based on the foregoing reasons, the judgment of the circuit court is affirmed.

AFFIRMED.

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

      . Marshall’s sentences were enhanced pursuant to the deadly-weapon enhancement in §§ 13A-5-6(4) and-6(5), Ala.Code 1975.


author:
WINDOM, Judge.
      JOINER, Judge,

text:
    Jessie Lee HOWELL v. STATE of Alabama.
    CR-10-0933.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 2011.
    Rehearing Denied Dec. 9, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1110358.
    Jessie Lee Howell, pro se.
    Luther Strange, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WINDOM, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., concurs. JOINER, J., concurs specially, with opinion.

JOINER, Judge,

concurring specially.

I write specially because this action appears to be Jessie Lee Howell’s 10th Rule 32, Ala. R.Crim. P., petition challenging his 1994 conviction for second-degree assault and his resulting sentence of 20 years’ imprisonment. As Judge Kellum has often stated:

“I believe that allowing [Howell] to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in 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 [Howell] and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).”

Bennett v. State, 77 So.3d 174 (Ala.Crim.App.2011) (Kellum, J., concurring specially).


author: PER CURIAM. KELLUM, Judge,

text:
    Mitchell MARBURY v. STATE of Alabama.
    CR-10-0997.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 2011.
    Rehearing Denied Nov. 18, 2011.
    Certiorari Denied Jan. 13, 2012 Alabama Supreme Court 1110276.
    Shelly Lynn Barnhard, Lincoln, for appellant.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Mitchell Marbur/s fifth Rule 32, Ala. R.Crim. P., petition challenging his 2001 conviction for first-degree robbery and his resulting sentence of life imprisonment without the possibility of parole. I believe that allowing Marbury to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in 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 Marbury and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: KELLUM, Judge.

text:
    Joe JOHNSON v. STATE of Alabama.
    CR-10-1590.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Leonard F. Mikul, Bay Minette, for appellant.
    Luther Strange, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Joe Johnson, pleaded guilty to two counts of assault in the second degree, a violation of § 13A-6-21, Ala. Code 1975, and one count of assault in the third degree, a violation of § 13A-6-22, Ala.Code 1975. The circuit court sentenced Johnson to 10 years’ imprisonment for each second-degree-assault conviction and to one year in prison for the third-degree-assault conviction. The circuit court ordered that the sentences were to run concurrently. The court further ordered Johnson to pay a total of $600 in fines, $300 to the crime victims compensation fund, and court costs.

The evidence presented at trial established that on July 11, 2007, Johnson failed to stop at a red light and struck the passenger side of another vehicle, causing significant injuries to the driver and two passengers who were riding in that vehicle. Following the accident, Johnson was arrested on July 13, 2007; he was released from jail on July 14, 2007. On September 29, 2007, Johnson was indicted by the Baldwin County grand jury in case no. CC-08-488 for one count of assault in the first degree and two counts of assault in the second degree as a result of the July 11, 2007, accident. On February 15, 2008, Johnson was arrested on that indictment, and he remained incarcerated until October 7, 2009, when he was released from jail. The record indicates that the circuit court ordered Johnson released from jail on a signature bond at that time because of repeated delays by the State in going to trial. On March 8, 2010, the State nolle prossed the charges in case no. CC-08-488.

On December 3, 2009, Johnson was rein-dicted by a Baldwin County grand jury in case no. CC-10-477 for three counts of assault in the second degree stemming from the July 11, 2007, accident. On March 9, 2010, after the State had nolle prossed the charges in case no. CC-08-488, Johnson was re-arrested pursuant to the new indictment in case no. CC-10-477. He was released from jail one day later on March 10, 2010. While out on bond, Johnson failed to appear for trial and was subsequently arrested on September 26, 2010. Johnson remained incarcerated pending the disposition of his case.

On May 8, 2011, Johnson pleaded guilty to two counts of assault in the second degree and to one count of assault in the third degree in case no. CC-10-477. On May 19, 2011, the circuit court conducted a sentencing hearing. At that hearing, the circuit court initially informed Johnson that he would “receive credit for any time that [he had] already served.” (R. 56.) When the circuit court was asked to clarify its order regarding jail credit, the following exchange occurred:

“THE COURT: I look at this case as being credit for time served since he was charged in CC-10-477. Whatever time he has served—
“[PROSECUTOR]: On this case?
“THE COURT: —on this case which he has — was unable to make bond or—
“[PROSECUTOR]: Okay. I just know that I’ve had to clear that issue up on other things.
“[DEFENSE COUNSEL]: Your Honor, just for the record, the defendant would ask that he receive credit for time served on the case that he was incarcerated for a long period of time where the indictment was withdrawn and then reindicted which I understand is about 36 months all together. That may be what Your Honor is already ruling, but I want to make sure it’s clear on the record.
“THE COURT: That’s not what I ruled. That’s a different case and that’s not what I’m ruling.”

(R. 57-58.) Johnson filed a timely post-judgment motion asking the circuit court to vacate or modify its sentence to award Johnson jail credit for all the actual time he spent incarcerated pending trial for the July 2007 offenses. The circuit court denied Johnson’s motion. This appeal followed.

Johnson’s sole contention on appeal is that the circuit court erred by not awarding him jail credit for time spent incarcerated pending the final disposition of charges against him that stemmed from the July 2007 traffic accident. Because the issue presented here involves a review of the circuit court’s conclusion of law and its application of the law to undisputed facts, this Court applies a de novo standard of review. Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005). Further, the interpretation of a statute presents a question of law and, thus, mandates de novo review. Ex parte Quick, 23 So.3d 67, 70 (Ala.2009).

Section 15-18-5, Ala.Code 1975, provides:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.”

(Emphasis added.) See also Rule 26.9(b)(2), Ala. R.Crim. P. (providing that the trial court “[s]hall state that a credit will be allowed on the sentence, as provided by law, for time during which the defendant has been incarcerated on the present charge”).

Section 15-18-5, Ala.Code 1975, requires that time spent incarcerated by a defendant before he is convicted must be credited toward the sentence imposed. See Ex parte Quick, 23 So.3d at 70; Fuqua v. State, 910 So.2d 141, 143 (Ala.Crim.App.2005). “In other words, ‘the plain language of § 15-18-5 does not permit the trial court to forgo ordering that the actual time spent in jail pending trial be credited against the sentence imposed.’ ” Ex parte Quick, 23 So.3d at 70 (quoting Fuqua v. State, 910 So.2d at 143).

Johnson cites Ex parte Quick, supra, in support of his contention that he was entitled to credit for the time he spent incarcerated under the first indictment in case no. CC-08-488. In Quick, Quick was arrested for one count of first-degree burglary and one count of capital murder in November 1995 and in January 1996 was arrested on one count of first-degree burglary and one count of third-degree burglary. 23 So.3d at 68. Quick, who remained incarcerated pending trial on those charges, was ultimately acquitted of the capital-murder charge in April 2003 and pleaded guilty to the three burglary charges. While incarcerated, Quick filed a petition for a writ of habeas corpus challenging the calculation of jail credit against his sentences for two counts of first-degree burglary and one count of third-degree burglary. Specifically, Quick claimed that he was entitled to jail credit for the time he spent incarcerated from his arrest in November 1995 until his acquittal on the capital-murder charge in April 2003. The circuit court granted Quick’s petition, but this Court reversed the judgment of the circuit court on appeal, finding that Quick was not entitled to the relief requested in his petition. State v. Quick, 23 So.3d 63 (Ala.Crim.App.2008).

On certiorari review, our Supreme Court reversed this Court’s decision and held that § 15-18-5 required that Quick receive jail credit against his sentence for one of his burglary convictions from the date of his arrest on that charge to the date of his acquittal on the capital-murder charge. Ex parte Quick, 23 So.3d at 70. In so holding, the Court reasoned that Quick was “incarcerated pending trial” for the burglary offenses within the meaning of § 15-18-5 from November 1995 to April 2003. 23 So.3d at 71. The Court further noted that Quick’s incarceration pending trial did not involve any confinement under a conviction of another crime and, thus, did not run afoul of the well settled rule set forth in Youngblood v. State, 437 So.2d 629 (Ala.Crim.App.1983), that a defendant is not entitled to accumulate credit for time served when he is serving time for another conviction. Ex parte Quick, 23 So.3d at 71.

In the instant case, as in Quick, the jail credit Johnson claims he is entitled to was not, in fact, jail credit received while Johnson was serving time for another conviction. The record establishes that Johnson was arrested on February 15, 2008, after he was indicted in case no. CC-08-488 for charges that stemmed from the July 2007 accident. Johnson remained incarcerated until October 7, 2009, when he was released from jail. The charges in case no. CC-08-488 were later nolle prossed and Johnson was reindicted a second time in case no. CC-10-477 for charges that stemmed from the July 2007 accident. Accordingly, the time Johnson spent incarcerated pending trial in case no. CC-08-488 should have been applied to his convictions in case no. CC-10-477 because Johnson’s incarceration from February 15, 2008, until October 7, 2009, was a direct result of his criminal prosecution for charges stemming from the July 2007 accident. Moreover, there is no indication in the record that Johnson agreed to waive his jail credit pursuant to .a negotiated plea agreement with the State. See Lay v. State, 82 So.3d 9 (Ala.Crim.App.2011) (holding that a defendant, as a part of a negotiated plea agreement, may waive his right to credit for time spent incarcerated awaiting trial). Therefore, the circuit court erred by not awarding Johnson jail credit for time he spent incarcerated in case no. CC-08 — 488.

Based on the foregoing, this case is remanded for the circuit court to enter a new sentencing order, in which Johnson is given credit for the time spent incarcerated in case no. CC-08-0488. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion. The return to remand shall include a new sentencing order and a transcript of the new sentencing hearing.

REMANDED WITH INSTRUCTIONS.

WELCH, P.J., and WINDOM, BURKE, and JOINER, JJ., concur.

       Note from the reporter of decisions: On January 27, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.