text:
    Daryl Eugene NOLL v. Linda NOLL.
    2080736.
    Court of Civil Appeals of Alabama.
    Jan. 29, 2010.
    Rehearing Denied April 2, 2010.

      Joseph C. Sullivan, Jr., of Hamilton, Butler, Riddick, Tarlton & Sullivan, P.C., Mobile, for appellant.
    Linda Z. Shepler (Noll), pro se.
   THOMAS, Judge.

In 1991, Daryl Eugene Noll (“the father”) and Linda Noll (“the mother”) were divorced by a judgment of the Mobile Circuit Court (“the trial court”). There was one child (“the child”) born of the parties’ marriage, who was three years old at the time the parties were divorced. In July 2006, the mother petitioned the trial court for an award of postminority educational support to require the father to pay for a portion of the child’s college-education expenses. The trial court entered a judgment on February 15, 2007, ordering the father to pay $600 per month in postminority educational support. The father timely moved the trial court to set aside its February 15, 2007, judgment, arguing that he did not have sufficient notice of the hearing on the mother’s petition. On April 16, 2007, the trial court set aside its February 15, 2007, judgment and scheduled a new hearing on the mother’s petition for post-minority educational support. Following a May 2007 hearing, the trial court entered a judgment on May 14, 2007, ordering the father to pay $600 per month in postminority educational support.

In December 2007, the mother moved the trial court to hold the father in contempt for failure to pay the court-ordered postminority educational support. On March 10, 2008, the father moved the trial court, pursuant to Rule 60(b), Ala. R. Civ. P., to set aside the May 14, 2007, judgment. The father argued in his Rule 60(b) motion that his attorney had failed to notify him of the May 2007 hearing. On July 10, 2008, the trial court granted the father’s Rule 60(b) motion, set aside its May 14, 2007, judgment, ordered the father to pay $600 per month in “pendente lite” postminority educational support, and set a hearing date on the mother’s motion for contempt and to review the father’s compliance with its award of “pendente lite” postminority educational support.

Following a hearing, the trial court entered a judgment on January 13, 2009, ordering the father to pay $300 per month in postminority educational support for a period of 48 months, beginning in August 2005. The father filed a postjudgment motion; the mother filed a postjudgment motion and a motion for contempt. The trial court denied the father’s and the mother’s motions. The father subsequently appealed to this court.

Neither party has raised the issue of this court’s jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003).

The trial court entered a judgment on May 14, 2007, ordering the father to pay $600 per month in postminority educational support. On March 10, 2008, nearly 10 months after the trial court entered its judgment, the father moved the trial court, pursuant to Rule 60(b), to set aside its May 14, 2007, judgment. In his Rule 60(b) motion, the father alleged that his counsel had not given him notice of the May 2007 hearing. Although the father does not state which subsection of Rule 60(b) he relied on, the allegations in his motion could fall under only Rule 60(b)(1), which allows relief from a judgment for “mistake, inadvertence, surprise, or excusable neglect.” See Dobbins v. Anderson, 496 So.2d 63, 64 (Ala.Civ.App.1986) (holding that Rule 60(b)(1) applied to a motion alleging that the defendant did not have notice of the trial date); see also Ex parte Hartford Ins. Co., 394 So.2d 933, 935 (Ala.1981)(holding that Rule 60(b)(1) applied to a motion alleging that an attorney inadvertently failed to discover that a case had been dismissed), and Godard v. AT & T Credit Corp., 690 So.2d 383, 385-86 (Ala.Civ.App.1996) (holding that Rule 60(b)(1) applied to a motion alleging that the defendant failed to respond to a complaint because of confusion in the defendant’s legal department). A Rule 60(b)(1) motion must be brought within four months of the entry of the judgment from which relief is sought. See Rule 60(b) (“The motion shall be made within a reasonable time, and for reasonf ] (1) ... not more than four (4) months after the judgment, order, or proceeding was entered or taken.”). The father brought his Rule 60(b) motion nearly 10 months after the entry of the May 14, 2007, judgment, well outside the 4 months allowed by Rule 60(b). Thus, the father’s motion was untimely if it is construed as a Rule 60(b)(1) motion.

The father’s Rule 60(b) motion could be considered timely if the motion could be construed as a Rule 60(b)(6) motion. There is no strict time limitation for filing a motion pursuant to Rule 60(b)(6); it only has to be brought within a “reasonable time.” Rule 60(b)(6) “is designed to operate exclusive of the specific grounds listed in Rule 60(b)(1) through (5), and a party may not escape the time limits of Rule 60(b)(1) merely by characterizing his motion as a Rule 60(b)(6) motion.” Ex parte Hartford Ins. Co., 394 So.2d at 936. Because the failure of the father’s attorney to notify the father of the hearing is included in the grounds in Rule 60(b)(1), the father’s motion would generally be excluded from consideration under Rule 60(b)(6).

Alabama courts have recognized an exception to this rule when “in the interest of justice, aggravating circumstances may be considered sufficient to allow the trial court to treat what would otherwise be a Rule 60(b)(1) motion as within Rule 60(b)(6).” R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala.1994). Alabama courts have found that sufficient aggravating circumstances existed when an attorney had intentionally misled his client or when the attorney had suffered from psychological disorders or other personal problems. Godard, 690 So.2d at 386 (citing Lee v. Tolleson, 502 So.2d 354 (Ala.1987), and Ex parte Oden, 617 So.2d 1020 (Ala.1992)). However, the father’s motion did not contain any allegations of aggravating circumstances necessary for the trial court to treat his motion as a Rule 60(b)(6) motion. Accordingly, the father’s Rule 60(b) motion cannot be considered a Rule 60(b)(6) motion. See Davison, 641 So.2d at 230. Therefore, the father’s motion could have been made only pursuant to Rule 60(b)(1), and, as such, it was untimely.

A trial court lacks jurisdiction to consider an untimely Rule 60(b) motion. See Harris v. Cook, 944 So.2d 977, 981 (Ala.Civ.App.2006) (holding that the trial court lacked jurisdiction to entertain a Rule 60(b)(2) motion that had been brought 15 months after the entry of the judgment); see also Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 756 (Ala.2000)(holding that the trial court was jurisdietionally barred from granting an untimely Rule 60(b) motion), and McDonald v. Cannon, 594 So.2d 128, 129 (Ala.Civ.App.l991)(holding that the trial court lacked jurisdiction over a Rule 60(b)(1) motion that had been filed more than four months after the entry of the judgment). Accordingly, the trial court lacked jurisdiction to grant the father’s March 10, 2008, Rule 60(b) motion and to set aside its May 14, 2007, judgment. A judgment entered without jurisdiction is void. Riley v. Pate, 3 So.3d 835, 838 (Ala.2008). Therefore, the trial court’s July 10, 2008, order purporting to set aside its May 14, 2007, judgment is void. Because the trial court’s July 10, 2008, order is void, its subsequent January 13, 2009, judgment, to the extent that that judgment is based on its July 10, 2008, order, is also void. Englebert v. Englebert, 791 So.2d 975, 977 (Ala.Civ.App.2001).

Because the trial court purportedly set aside the May 14, 2007, judgment, it did not determine in its January 13, 2009, judgment whether the father had complied with the May 14, 2007, judgment, or whether the father should be held in contempt, as requested by the mother. Because we hold that the trial court’s order purporting to grant the father’s Rule 60(b) motion is void, and, therefore, because the May 14, 2007, judgment remains valid, the mother’s motion for contempt requires adjudication. The trial court’s January 13, 2009, judgment does not dispose of all the issues in controversy between the parties, and, as such, it is not a final judgment.

“An appeal ordinarily lies only from the entry of a final judgment. Ala.Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).”

Henning v. Henning, 999 So.2d 523, 525 (Ala.Civ.App.2008). Accordingly, we must dismiss the appeal.

Because the trial court lacked jurisdiction to entertain the father’s Rule 60(b) motion and because the father has appealed from a nonfinal judgment, we dismiss the appeal with instructions for the trial court to vacate its July 10, 2008, order purporting to grant the father’s March 10, 2008, Rule 60(b) motion, to vacate its January 13, 2009, judgment, and to hold a hearing on the mother’s motion for contempt.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The father's counsel attended the hearing and represented the father’s interests.

      . Rule 60(b)(6) provides for relief from a judgment for "any other reason justifying relief from the operation of the judgment.”


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Camellia B. BARNES v. ALTERNATIVE CAPITAL SOURCE, LLC.
    2081103.
    Court of Civil Appeals of Alabama.
    Jan. 29, 2010.
    Rehearing Denied March 12, 2010.
    Certiorari Denied April 9, 2010 Alabama Supreme Court 1090834.
    Camellia B. Barnes, pro se.
   MOORE, Judge.

Camellia B. Barnes appeals from a July 23, 2009, judgment entered by the Jefferson Circuit Court (“the trial court”). In that judgment, the trial court ruled that it had no jurisdiction to reinstate an appeal from the Jefferson District Court. We affirm.

On May 24, 2008, the Jefferson District Court entered a judgment against Barnes and in favor of Alternative Capital Source, LLC (“ACS”), for $2,779.50 plus court costs. Barnes attempted to file a notice of appeal with the clerk of the district court on June 5, 2008. According to Barnes, the clerk failed to inform her that she needed to pay a filing fee or to apply for a hardship waiver. ACS obtained a garnishment order and proceeded to garnish Barnes’s wages. Barnes returned to the clerk’s office on August 21, 2008, to inquire as to the status of her appeal; at that time, she was informed that the appeal had not been filed because no filing fee had been paid and no hardship waiver had been requested. Barnes applied for a hardship waiver at that time, and the clerk filed the notice of appeal.

ACS moved the trial court to dismiss the appeal because the notice of appeal had not been timely filed; the trial court granted that motion on August 28, 2008. Barnes filed a “motion to reinstate” the appeal on September 2, 2008, which the trial court denied on September 30, 2008. On November 10, 2008, Barnes filed a Rule 60(b), Ala. R. Civ. P., motion for relief from the August 28, 2008, judgment of dismissal in which she argued essentially that the trial court should have treated her notice of appeal as timely filed even in the absence of the payment of a filing fee or a hardship waiver. The trial court denied that motion on November 18, 2008. Barnes then filed a “motion for hearing” in which she made the identical arguments she had raised in her Rule 60(b) motion; the trial court denied the “motion for hearing” on December 5, 2008. Barnes subsequently filed a letter "with the trial court requesting assistance with obtaining legal aid.

On March 9, 2009, after obtaining legal counsel, Barnes filed another Rule 60(b) motion to set aside the August 28, 2008, judgment, again arguing that the notice of appeal had been timely filed despite the absence of the payment of a filing fee or a hardship waiver. The trial court entered an order purporting to grant that motion on June 18, 2009. ACS filed a Rule 60(b)(4) motion on July 8, 2009, arguing that the trial court had lost jurisdiction to reinstate the appeal. The trial court granted that motion, vacated its June 18, 2009, order, and dismissed the case on July 23, 2009. Barnes timely appealed to this court on August 24, 2009.

On appeal, Barnes argues that the trial court erred in dismissing her appeal from the district court’s judgment based on her failure to pay a filing fee or to obtain a hardship waiver. However, we cannot address that argument. The July 23, 2009, judgment entered by the trial court granted ACS’s Rule 60(b)(4) motion to set aside the June 18, 2009, order. A trial court’s decision to grant a Rule 60(b)(4) motion may be appealed, but the only matter reviewable in such an appeal is the propriety of the ruling on the motion. See generally Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005). In this case, the trial court acted properly in recognizing that it had no jurisdiction. Barnes had filed an identical motion on November 10, 2008, which the trial court denied on November 18, 2008. Barnes’s March 9, 2009, motion can only be considered a “motion to reconsider” the denial of her November 10, 2008, Rule 60(b) motion.

“Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b)[, Ala R. Civ. P.,] where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 771 So.2d 1018 (Ala.1998), ‘[ajfter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’).”

Pinkerton Sec. & Investigations Servs., Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005).

Having originally denied Barnes’s first Rule 60(b) motion on November 18, 2008, the trial court lost jurisdiction to rule on any successive Rule 60(b) motions based on the same grounds. The March 9, 2009, motion sought relief on the same grounds asserted by Barnes in the November 10, 2008, motion. Hence, the trial court did not have jurisdiction to grant that motion as it purported to do on June 18, 2009. Recognizing its error, the trial court vacated the June 18, 2009, order in its July 23, 2009, judgment. That last judgment is correct in all respects and is due to be affirmed.

AFFIRMED.

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


author: SHAW, Judge.

text:
    Mark PARTAIN v. STATE of Alabama.
    CR-06-0978.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.

      Mark Partain, pro se.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   SHAW, Judge.

Mark Partain appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he attacked his 2004 conviction for capital murder and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Partain’s conviction and sentence on appeal. See Partain v. State (No. CR-04-0631), 933 So.2d 415 (Ala.Crim.App.2005). The Alabama Supreme Court denied cer-tiorari review, and this Court issued a certificate of judgment on December 9, 2005.

Partain filed his Rule 32 petition on or about September 26, 2006. In his petition, Partain alleged that his trial counsel was ineffective for a number of reasons. Specifically, Partain listed the following allegations of ineffective assistance of trial counsel in his petition:

(1) Counsel refused to allow Partain to testify at trial;
(2) Counsel did not timely investigate or interview a nurse from the Nashville, Tennessee, jail or attempt to subpoena her to testify at trial about the severity and possible causes of Partain’s injuries when he was taken into custody, the pain those injuries would have caused, and Partain’s mental state at the time he was taken into custody;
(3) Counsel did not seek or obtain expert testimony to show that the damage to the window was caused years before the alleged break-in that gave rise to the burglary element of the capital charge;
(4) Counsel did not seek or obtain expert testimony on battered spouse syndrome; and
(5) Counsel generally failed to properly investigate the case by failing to obtain mental-health records, testimony from a neighbor about the damage to the window, testimony from Partain’s mother about Partain’s injuries, and information from Partain’s friend about the alleged abusive behavior Partain received from the victim.

After receiving a response from the State, the circuit court summarily denied the petition on January 23, 2007, finding that Partain’s allegations of ineffective assistance of counsel were barred by Rule 32.2(a)(5), Ala.R.Crim.P.; that Partain failed to satisfy both his burden of pleading and his burden of proving his allegations; and that his allegations were without merit based on the court’s recollection of Partain’s trial.

Initially, we note that the circuit court erred in finding Partain’s allegations of ineffective assistance of counsel to be barred by Rule 32.2(a)(5). When an ineffective-assistance-of-counsel claim cannot reasonably be presented in a timely filed motion for a new trial, see Rule 24.1, Ala. R.Crim.P., the proper method for presenting the claim is in a Rule 32 petition. See Ex parte Ingram, 675 So.2d 863 (Ala.1996). In this case, Partain was represented by different counsel at trial and on appeal; however, appellate counsel was not appointed until after the time for filing a motion for a new trial had lapsed. It was trial counsel who filed the motion for a new trial on Partain’s behalf. Therefore, Partain’s allegations of ineffective assistance of trial counsel could not have reasonably been raised in the motion for a new trial.

We note further that, contrary to the circuit court’s apparent finding, Par-tain had no burden of proof at the pleading stage. As this Court explained in Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001):

“[A]t the pleading stage of Rule 32 proceedings, a Rule 32 petitioner does not have the burden of proving his claims by a preponderance of the evidence. Rather, at the pleading stage, a petitioner must provide only ‘a clear and specific statement of the grounds upon which relief is sought.’ Rule 32.6(b), Ala. R.Crim.P. Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”

831 So.2d at 644. See also Thomas v. State, 908 So.2d 308 (Ala.Crim.App.2004); Borden v. State, 891 So.2d 393 (Ala.Crim.App.2002); and Johnson v. State, 835 So.2d 1077 (Ala.Crim.App.2001). Thus, to the extent the circuit court denied Par-tain’s petition on the ground that Partain failed to prove his allegations of ineffective assistance of counsel, that denial was improper.

That being said, many of the allegations in Partain’s petition were properly denied on the ground that Partain failed to meet the pleading requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P. Rule 32.3 provides, in pertinent part, that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Pursuant to Rule 32.6(b):

“The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.”

As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003):

‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion *which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle[s] a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala.R.Crim.P., to present evidence proving those alleged facts.”

913 So.2d at 1125.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Furthermore, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689, 104 S.Ct. 2052.

As this Court explained in Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006):

“The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must ‘identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ 466 U.S. at 694, 104 S.Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient.”

950 So.2d at 356.

With regard to Partain’s claims (2), (3), (4), and (5), set out above, we agree with the circuit court that Partain failed to plead sufficient facts supporting both prongs of the Strickland test. These allegations consisted of little more than con-clusory statements, much of which involved Partain’s desire to present evidence that, based on the record before this Court, would have amounted to cumulative evidence, and none of these assertions indicate a reasonable probability that the outcome of Partain’s trial would have been different had counsel acted differently. Therefore, summary denial of these allegations of ineffective assistance of counsel was proper.

However, with regard to Partain’s contention that counsel was ineffective for allegedly preventing Partain from testifying at trial despite his desire to testify, claim (1), set out above, Partain pleaded sufficient facts to meet his burden of pleading with regard to both prongs of the Strickland test. See, e.g., Miller v. State, 1 So.3d 1073 (Ala.Crim.App.2007). See also Reeves v. State, 974 So.2d 314, 325 (Ala.Crim.App.2007) (“A defendant has a fundamental right to testify on his own behalf, that right is personal to the defendant, and defense counsel may not waive that right.”).

We recognize that a circuit judge who has personal knowledge of the facts underlying an allegation of ineffective assistance of counsel may summarily deny that allegation based on the judge’s personal knowledge of counsel’s performance. See, e.g., Ex parte Walker, 800 So.2d 135 (Ala.2000). We likewise recognize that the circuit judge who ruled on the petition in this case was the same judge who presided over Partain’s trial and specifically stated in his order that he had the “opportunity to observe counsel’s performance throughout the proceedings” and found counsel to be effective. (C. 63.) However, this particular claim of ineffective assistance of counsel was not within the court’s personal knowledge. The transcript of Partain’s trial reflects no discussions on the record regarding Partain’s not testifying, and the allegations in Partain’s petition reflect that this allegation is based entirely on communications between him and his counsel, to which the circuit judge was not privy. Thus, the circuit judge could not have found this allegation to be meritless based on his own personal knowledge.

In addition, although the district attorney asserted in her response to the petition that she had spoken "with Partain’s counsel and that counsel had denied Par-tain’s allegation in this regard, the State did not attach to its response an affidavit from counsel or any other evidence to support that assertion. Thus, although Par-tain’s allegation does not have to be accepted as true, as would be the case if the allegation had gone completely unrefuted by the State, the circuit court was faced with competing pleadings — a sufficiently pleaded allegation of ineffective assistance of counsel by Partain and an unsupported assertion by the State that the allegation was meritless — and was required at that point either to conduct an evidentiary hearing or to accept evidence in other forms, see Rule 32.9(a), Ala.R.Crim.P., regarding Partain’s allegation and then to rule on the merits of the allegation.

Based on the foregoing, we remand this case for the circuit court either to conduct an evidentiary hearing or to accept evidence in the form of affidavits, written interrogatories, or depositions, see Rule 32.9(a), regarding Partain’s claim that his trial counsel was ineffective for refusing to permit him to testify at trial and to then issue specific written findings of fact regarding that allegation. The circuit court may grant whatever relief it deems necessary. Due return shall be filed within 42 days of the date of this opinion, and shall include the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.

      . This Court may take judicial notice of its own records, and we do so in this case. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).

       Note from the reporter of decisions: On September 30, 2009, after the trial court had responded to the Court of Criminal Appeals' remand order, the Court of Criminal Appeals again remanded this case to the trial court by order. On May 21, 2010, on return to that second remand, the Court of Criminal Appeals affirmed, without opinion.


author: KELLUM, Judge.

text:
    Broderick TAYLOR v. STATE of Alabama.
    CR-08-1080.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Denied Sept. 25, 2009.
    Certiorari Denied May 7, 2010 Alabama Supreme Court 1090040.

      James M. Byrd, Mobile, for appellant.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Broderick Taylor, appeals from the circuit court’s revocation of his probation. The record indicates that on December 4, 2002, Taylor was convicted of assault in the second degree. The circuit court sentenced Taylor to 10 years’ imprisonment; however, that sentence was suspended, and Taylor was placed on 5 years’ supervised probation. Further, Taylor was ordered to pay restitution and other court-ordered moneys.

On July 15, 2003, Taylor’s probation officer at the time filed a petition seeking the revocation of Taylor’s probation based on new criminal charges of assault in the second degree, escape in the first degree, and resisting arrest. While out on bond awaiting a probation-revocation hearing, Taylor was arrested in 2006 and 2008 on new criminal charges of discharging a gun into an unoccupied building and two counts of “complicity assault.” On March 2, 2009, Taylor’s new probation officer filed an amended petition seeking revocation of Taylor’s probation, based on Taylor’s arrest in 2006 and 2008 on new criminal charges and based on Taylor’s failure to pay court-ordered moneys relating to the 2002 conviction.

On March 23, 2009, the circuit court conducted a probation-revocation hearing. At the revocation hearing, Nancy Jones, Taylor’s probation officer at the time of the hearing, testified, in pertinent part, that Taylor had paid $300 in court-ordered moneys as of the date of the revocation hearing. According to Jones, Taylor was ordered by the circuit court to pay $5,518.70. Jones testified that Taylor still owed $5,218.70 at the time of the revocation hearing. Taylor’s last payment of court-ordered moneys was on September 3, 2004. Testimony indicated that the terms and conditions of Taylor’s probation included the payment of court-ordered moneys. Taylor was also informed how much to pay each month and when each monthly payment was due.

Following the revocation hearing, the circuit court entered an order on March 28, 2009, revoking Taylor’s probation. The order stated that the court was reasonably satisfied from the evidence presented at the hearing that Taylor had violated the terms and conditions of his probation by failing to pay his court-ordered moneys as provided for in his probation order. This appeal followed.

Taylor’s sole contention on appeal is that the circuit court’s refusal to inquire into the reasons for his failure to pay court-ordered moneys requires a remand of this case.

In Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the United States Supreme Court reversed the judgment of the trial court, which revoked the appellant’s parole for failure to pay fines and restitution without first determining that he had the ability to pay. The Bearden Court held:

“We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures to punishment other than imprisonment.”

Id., 461 U.S. at 672, 103 S.Ct. 2064.

In Snipes v. State, 521 So.2d 89, 90 (Ala.Crim.App.1986), this Court, citing the Supreme Court’s decision in Bearden held:

“that where payment of court costs and supervision fees is made a condition of probation, a defendant’s probation may not be revoked because of his failure to pay without the court’s finding, supported by the evidence, that the defendant willfully refused to pay; that he failed to make sufficient bona fide efforts to pay; or, in the event of a showing of sufficient efforts to pay, that alternate measures to punish and deter are inadequate. No such finding was made in this case.”

In the instant case, it is undisputed that Taylor failed to pay court-ordered moneys; however, the specific type of court-ordered moneys Taylor failed to pay is unclear. Regardless, under the Supreme Court’s holding in Bearden and this Court’s holding in Snipes, the circuit court is required to inquire into the reasons for Taylor’s failure to pay his court-ordered moneys and to make appropriate findings.

In the instant case, the circuit court based its decision to revoke Taylor’s probation solely on Taylor’s failure to pay court-ordered moneys, without making specific findings. Thus, the circuit court’s order fails to make the specific determinations and findings, supported by the evidence, that Taylor willfully refused to pay; that he failed to make sufficient bona fide efforts to pay; or, in the event of a showing of sufficient efforts to pay, that alternate measures to punish and deter are inadequate, as required by this Court in Snipes and Rule 26.11(i), Ala. R.Crim. P. “In revocation proceedings for failure to pay fines, restitution, court costs, or supervision fees, the trial court should inquire into the reasons for the failure to pay and make specific determinations and findings in accordance with Bearden v. Georgia.” Snipes, 521 So.2d at 91.

The State argues that the circuit court did not err in failing to make an inquiry into Taylor’s reasons for not paying his fines and restitution because Taylor was not indigent. A careful reading of Rule 26.11(i) does not support the State’s argument. Rule 26.11(0 provides, in pertinent part:

“(1) Incarceration shall not automatically follow the nonpayment of a fine or restitution. Incarceration should be employed only after the court has examined the reasons for nonpayment. After consideration of the defendant’s situation, means, and conduct with regard to the nonpayment of the fine and/or restitution, the court shall determine the period of any incarceration in default of payment of the fine and/or restitution, subject to the following limitations:
“(i) In no event shall such period of incarceration exceed one (1) day for each fifteen • dollars ($15.00) of the fine.
“(ii) If the fine was imposed in connection with a felony, the period of incarceration may not exceed one (1) year.
“(iii) If the fine was imposed in connection with a misdemeanor or municipal ordinance violation, the period of incarceration may not exceed one-third (1/3) of the maximum term of incarceration authorized for the offense.
“(iv) If, at the time the fine was imposed or the restitution was ordered, a sentence of incarceration was also imposed, the aggregate of the period of incarceration imposed pursuant to this rule and the term of the sentence originally imposed may not exceed the maximum term of imprisonment authorized for the offense.
“(2) In no case shall an indigent defendant be incarcerated for inability to pay a fine or court costs or restitution.”

Based on the plain language of Rule 26.11(i), we conclude that subsection (1) applies to both indigents and nonindigents alike. Indeed, if subsection (1) applied only to indigents, then the provisions contained in subsection (2) — applying specifically to indigents — would have been part of subsection (1). Given this distinction in Rule 26.1 l(i), it was therefore incumbent on the circuit court to make an inquiry into Taylor’s reasons for not paying his fines and restitution before revoking his probation solely on that ground.

Based on the foregoing, the judgment of the circuit court is reversed and the case remanded.

REVERSED AND REMANDED.

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

WELCH, J., concurs in the result.

      . It is unclear from the record how much of the court-ordered money was designated for the crime victims compensation fund, for restitution, and for court costs.

      . Since the release of the decisions in Bearden and Snipes, the Alabama Supreme Court, pursuant to its rule-making authority, adopted Rule 26.11, Ala. R.Crim. P., setting out the trial court’s duties in cases when a defendant fails to pay his or her fine or restitution.