author: WISE, Presiding Judge.

text:
    Quante Dequan RICE v. STATE of Alabama.
    CR-09-1013.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.
    Rehearing Denied Jan. 7, 2011.
    Certiorari Denied Nov. 10, 2011 Alabama Supreme Court 1100459.

      Keith Alston, Jr., Selma; and William W. Whatley, Jr., Montgomery, for appellant.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Quante Dequan Rice, was convicted of the capital offense of robbery-murder, a violation of § 13A-5-40(a)(2), Ala.Code 1975. After a sentencing hearing, by a vote of 8^f, the jury recommended that he be sentenced to imprisonment for life without the possibility of parole. The trial court followed the jury’s recommendation and sentenced him to imprisonment for life without the possibility of parole. Rice filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

Rice argues that the trial court improperly denied his motion pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), after the prosecution allegedly used its peremptory challenges in a racially discriminatory manner. In his brief to this court, he specifically contends, as he did at trial, that the prosecution’s reason for striking Veniremember T.L.S. was pretextual.

After the jury was struck but before it was sworn, the following occurred:

“[DEFENSE COUNSEL]: At the conclusion of the strikes, the defense would make a motion for a Batson challenge; the information being that we started with a panel of 36. The percentage of white members of the venire, of the panel was 26 percent, six white males and seven white females. The black percentage was 64 percent, eleven black males and twelve black females. Of the twelve strikes for the State, there were — eleven of the twelve strikes were against black members of the panel, five black males and six black females. There were eleven black males to start with and twelve black females to start with. The pattern indicates an overwhelming majority; eleven out of those twelve strikes were against minority members, especially African-American, on the panel. Percentage matches, the dilution is that 64 percent to begin with to 58 percent after striking. So it meets the numerical basis. The Defendant is an African-American defendant. Obviously he’s black male. The dilution of the black males — they struck five out of the eleven black males off the panel. So I think we have met the initial basis to go forward and ask the State to follow up with neutral reasons for their strikes.
“THE COURT: All right. The State?
“[PROSECUTOR]: Well, Judge, the State would answer that you know the prima facie is not made. If you were to look at the venire, the makeup of the panel is eight to six African-American. The defense struck all but three of the white females. So there were significantly less white jurors impaneled for us to strike from as the whites were being struck. And it’s not disproportionate to the amount of African-Americans on the jury pool. And it is not skewed heavily towards African-American in the total makeup of the jury pool.
“THE COURT: How many Caucasian strikes did the defense take?
“[DEFENSE COUNSEL]: Seven of the twelve, seven white and five blacks as opposed to eleven and one.
“THE COURT: All right. The Court is going to require that the State go through its eleven strikes and give race-neutral reasons, if any, why the strikes were made.
“[DEFENSE COUNSEL]: For the record it would be twelve strikes. Each side had twelve.
“THE COURT: I understand, but you said that they struck eleven whites.
“[DEFENSE COUNSEL]: Yes, sir, I understand. I misspoke.
“[PROSECUTOR]: Judge, the first strike was number 50, [D.F.], who as you recall during jury selection [indicated] that he neither wanted to be there nor could he sit in judgment because he wasn’t going to render a verdict of guilt. And we brought him back here, and he didn’t want to be here. And he didn’t want to vote guilty. 193 — I’m sorry. 26 also was brought. Number 26 was struck because her son was accused of robbery. Number 119 was struck because her nephew has been accused of robbery in Dallas County. Number 86 as well was brought back here because he did not want to be here and said that he could not judge. And when I asked him, he said that he would not vote guilty. Number 71, which was [R.H.], was brought back here. And when he asked, he said that no matter what the evidence shows, he would not vote guilty because he did not want to be here.
“[DEFENSE COUNSEL]: Number 71?
“[PROSECUTOR]: Yes, [R.H.] It was in the large' jury pool. If you were to check, I asked everyone in that panel if — no, it was not back there in the room. It was out in the large jury pool. And [R.H.] was seated in the third row back and stood up and said that he just could not sit in judgment. And I asked him twice if I was able to prove my case beyond a reasonable doubt, could he vote guilty. And he said he did not think so. Juror number 164 is [T.L.S.] I called her name at the beginning. And she has been convicted of a disorderly conduct and harassment which shows a disregard for the law. Number 59 was a white male. Number 125, [E.M.], she stated in group voir dire that her car had been stolen, and no one had ever been caught. And she was not happy about that because there had been no closure. Number 66, [A.H.], she said that she had relations in Georgia close to where the Defendant is from near Stockbridge. Number 11, [D.B.], had actually been convicted of leaving the scene of an accident. While he was a good juror, we are talking about a robbery in this case. A car is leaving the scene of the accident. And, you know, I feel that that might prejudice him. 193 was [D.W.] And when I tried to engage him in conversation or catch his eye, every time that I would say anything, any statement I ever made, he would look at me and roll his eyes. So I mean, obviously you know, I just felt that that was a complete disregard for the State. And I just didn’t feel like he was going to listen to anything I had to say.
“THE COURT: [Defense counsel]?
“[DEFENSE COUNSEL]: Judge, on the issue of the one that was mentioned by the State for a disorderly conduct conviction, number 164, a black female, [T.L.S.], there were a number of individuals in this panel that had criminal convictions. I pulled all of the records. And this is the only person, a black female, that was struck because of a criminal conviction. I will give you an example. A white male, number 44, [D.D.], the State did not strike, was convicted in Dallas County in 2005 for a traffic offense. As well, Number 105, [J.C.L.], was convicted in Dallas County in 2000 for reckless driving. I’ve got one more that didn’t get marked out. Number 44 is the one that I caught because he is actually a white male that is on the jury that they did not strike that also had a conviction on here. I think the rest of them we drew out of the hat. It wasn’t an issue on those. 105 and 44 are the two white males that they did not strike, but they struck the only black female, the only reason being a disorderly conduct conviction.
“[PROSECUTOR]: ... As far as the records go, the individuals with records that I may have struck were all white individuals struck by the defense. The only one left is [D.D.] with an assault third. However, [T.L.S.] has a disorderly conduct, and that involved police officers. I mean a disorderly, you know, showing complete disrespect for police officers when in fact the State is putting on a case involving police officers is going to be different. If you want to get into [J.C.L.] — and also [D.B.] was struck, but while I thought he was a good juror, he had a leaving the scene of an accident. Everyone else that is even an issue are white jurors struck by the defense.
“THE COURT: Anything else, [defense counsel]?
“[DEFENSE COUNSEL]: As far as [J.C.L.], [he] was our eleventh strike. I intentionally waited until the one that would not be the alternate to give the State the opportunity to strike a white male with a criminal record, and they chose not to. You know, I think the record speaks where it is....
“THE COURT: The Court is going to deny the Batson motion. The Court finds that the State has articulated sufficient race-neutral reasons for all for the eleven strikes that were challenged.”

(R. 240-46.)

“In Batson the United States Supreme Court held that black veniremembers could not be struck from a black defendant’s jury because of their race. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the court extended its decision in Batson to apply also to white defendants.... The United States Supreme Court in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), held that the protections of Batson were also available to defense counsel in criminal trials. The Alabama Supreme Court has held that the protections of Batson apply to the striking of white prospective jurors. White Consolidated Industries, Inc. v. American Liberty Insurance Co., 617 So.2d 657 (Ala.1993).”

Grimsley v. State, 678 So.2d 1194, 1195 (Ala.Crim.App.1995).

“After the appellant makes a timely Bat-son motion and establishes a prima facie showing of discrimination, the burden shifts to the state to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991). We will reverse the circuit court’s ruling on the Batson motion only if it is ‘clearly erroneous.’ Jackson v. State, 549 So.2d 616 (Ala.Cr.App.1989).”

Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992).

“Once the prosecutor has articulated a nondiscriminatory reason for challenging the black jurors, the other side can offer evidence showing that the reasons or explanations are merely a sham or pretext. [People v.] Wheeler, 22 Cal.3d [258] at 282, 583 P.2d [748] at 763-64, 148 Cal.Rptr. [890] at 906 [(1978)]. Other than reasons that are obviously contrived, the following are illustrative of the types of evidence that can be used to show sham or pretext:
“1. The reasons given are not related to the facts of the case.
“2. There was a lack of questioning to the challenged juror, or a lack of meaningful questions.
“3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck....
“4. Disparate examination of members of the venire; e.g., a question designed to provoke a certain response that is likely to disqualify the juror was asked to black jurors, but not to white jurors....
“5. The prosecutor, having 6 peremptory challenges, used 2 to remove the only 2 blacks remaining on the venire....
“6. ‘[A]n explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.’ Slappy [v. State], 503 So.2d [350] at 355 [ (Fla.Dist.Ct.App.1987) ]. For instance, an assumption that teachers as a class are too liberal, without any specific questions having been directed to the panel or the individual juror showing the potentially liberal nature of the challenged juror.”

Ex parte Branch, 526 So.2d 609, 624 (Ala.1987).

In this case, the defense based its Batson motion solely on the number of black veniremembers the prosecution struck.

“Alabama courts have recently held that even a showing that [a] party had ... a high percentage of strikes used against a minority was not alone enough. In Ex parte Trawick, 698 So.2d 162, 168 (Ala.1997), the Alabama Supreme Court held, “Without more, we do not find that the number of strikes this prosecutor used to remove women from the venire is sufficient to establish a prima facie case of gender discrimination.’ ”

Armstrong v. State, 710 So.2d 531, 533 (Ala.Crim.App.1997). Because the defense relied solely upon the number of black veniremembers the prosecution struck, we question whether it established a prima facie showing that the prosecution exercised its peremptory challenges in a discriminatory manner. Nevertheless,

“[w]here, as in this case, the trial court requires the opposing counsel to state reasons for the peremptory strikes without first requiring that a prima facie case of discrimination be established, this Court will review those reasons and the trial court’s ultimate decision on the Batson motion without determining whether the moving party met its burden of proving a prima facie case of discrimination.”

Harris v. State, 705 So.2d 542, 545 (Ala.Crim.App.1997).

The record supports Rice’s assertions of disparate treatment with regard to Venire-member T.L.S. and Juror D.D. The prosecution indicated that it struck T.L.S. because she had been convicted of disorderly conduct and harassment, but it conceded that it did not strike D.D., a white male, who defense counsel stated had been convicted of a traffic offense and the prosecution stated had been convicted of third-degree assault.

We addressed a similar situation in Yancey v. State, 813 So.2d 1, 7-9 (Ala.Crim.App.2001), as follows:

“Though we have held that striking a prospective juror because of a prior criminal history is a race-neutral reason, we have also held that the failure to strike both whites and blacks because of prior criminal records is evidence of disparate treatment, in violation of Batson. See Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988), aff'd, 548 So.2d 605 (Ala.1989). ‘Such disparate treatment of otherwise similarly situated persons who happen to be of different racial backgrounds, would evidence discriminatory intent in the State’s use of its strikes.’ Bishop v. State, 690 So.2d 498, 500 (Ala.Crim.App.1995), on remand, 690 So.2d 502 (Ala.Crim.App.1996). See also Russell v. State, 739 So.2d 58 (Ala.Crim.App.1999); Wright v. State, 601 So.2d 1095 (Ala.Crim.App.1991); and Mitchell v. State, 579 So.2d 45 (Ala.Cr.App.1991), cert. denied, 596 So.2d 954 (Ala.1992). The prosecutor’s reasons for striking prospective jurors numbers 93, 118, and 151, evidence disparate treatment.
“As this Court stated in Powell, 548 So.2d at 593-94:
“ ‘In view of the fact that five members of the jury were in their twenties (the average age of the jury was only 31 years, 8 months) and seven members of the jury had had traffic offenses equally as serious as those of the black venirepersons who were struck by the State, we cannot escape the conclusion that the State engaged in the type of “disparate treatment” denounced in Branch. White “persons with the same or similar characteristics as the challenged [black] juror[s] were not struck.” Branch, 526 So.2d at 624. See Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987) (on return to remand) (validity of prosecutor’s reasons for striking two black venirepersons because they had had traffic citations did not “stand up under close scrutiny” when record revealed that two white jurors who served on jury had similar traffic offenses). The State simply did not remove white persons for the same reasons given by the State for removing blacks. Compare Currin v. State, 535 So.2d 221 (Ala.Cr.App.1988) (“A reasonable conclusion ... is that [the prosecutor] applied the racially neutral criteria of education, employment, and demeanor to all jurors, whether black, [or] white....”) (quoting United States v. Allen, 666 F.Supp. 847, 854 (E.D.Va.1987)). See generally State v. Antwine, 743 S.W.2d 51, 65 (Mo.), cert. denied, Antwine v. Missouri, [488] U.S. [1017], 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), wherein the court found it highly relevant to consider “whether similarly situated white veniremen escaped the State’s challenges.” ’
“In Carrick v. State, 580 So.2d 31, 32 (Ala.Crim.App.1990), we stated:
“ ‘In the instant case, the State engaged in the type of disparate treatment denounced in Branch. See also Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987) (wherein this Court held that the validity of the prosecutor’s reasons for striking two black venire-persons because they had had traffic citations did not “stand up under close scrutiny” when the record revealed that two white jurors who served on the jury had similar traffic offenses, at 478). Here, as in Acres, the State simply did not remove white persons for the same reasons given by the State for removing blacks.’
“ ‘ “[Disparate treatment furnishes strong evidence of discriminatory intent.” ’ Freeman v. State, 651 So.2d 576 (Ala.Crim.App.1994), quoting Ex parte Bird, 594 So.2d 676, 681 (Ala.1991), on remand, 594 So.2d 689 (Ala.Crim.App.1992). See also Kynard v. State, 631 So.2d 257 (Ala.Crim.App.1993). ‘This court has condemned the failure to strike white venirepersons who share the same characteristics as black venire-persons who were struck.’ Bishop v. State, 690 So.2d at 500.
“... The voir dire in this case covered portions of five volumes of the record. It appears that the jurors were questioned equally about their views concerning capital punishment; however, there is no discussion concerning any prospective jurors’ prior misdemeanor offenses or traffic offenses. Thus, the voir dire provides no support for some of the reasons advanced by the prosecution. From the record it appears that the prosecutor engaged in disparate treatment when striking Yancey’s jury.”

See also Carter v. State, 603 So.2d 1137 (Ala.Crim.App.1992) (finding disparate treatment between black and white venire-members where two unemployed black veniremembers were struck but two unemployed white veniremembers were not struck); Sims v. State, 587 So.2d 1271, 1277 (Ala.Crim.App.1991) (noting that “many of the traits exhibited by the black veniremembers and given as reasons for challenging them were also exhibited by white members who went unchallenged by the state”). Finally, in Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005), the United States Supreme Court reiterated:

“If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.”

We find it relevant that the prosecution indicated that it struck Veniremember D.B., a black male, because he had been convicted of leaving the scene of an accident. We further find it relevant that the prosecutor did not ask any of the venire-members any questions about their prior convictions or the details surrounding those convictions. “[T]he failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination. Branch, 526 So.2d at 623.” Hemphill v. State, 610 So.2d 413, 416 (Ala.Crim.App.1992). See also Ex parte Bird, 594 So.2d 676 (Ala.1991); Guthrie v. State, 598 So.2d 1013 (Ala.Crim.App.1992); Madison v. State, 545 So.2d 94 (Ala.Crim.App.1987).

“It is well settled that the ruling of the trial court on a Batson hearing is entitled to substantial deference and will not be disturbed on review unless it is ‘clearly erroneous.’ Scales v. State, 539 So.2d 1074 (Ala.1988).” Ex parte Bankhead, 625 So.2d 1146, 1148 (Ala.1993). For the reasons set forth above, we are compelled to conclude that the prosecutor’s reason for striking Veniremember T.L.S. was no more than a pretext for racial discrimination. “[T]he failure to articulate a sufficient race-neutral reason for excluding even a single black veniremember may entitle the defendant to a new trial. Harrell v. State, 555 So.2d 263 (Ala.1989).” Id.

“[W]hen illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pre-textual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”

Miller-El, 545 U.S. at 252, 125 S.Ct. at 2332. Accordingly, we are compelled to reverse the trial court’s judgment and to remand this case for a new trial.

REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.


source: Caselaw Access Project

author: KELLUM, Judge. MAIN, Judge,

license: Public Domain

text:
    Timothy T. RECK v. STATE of Alabama.
    CR-09-1411.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Rehearing Denied Feb. 18, 2011.

      Leonard F. Mikul, Bay Minette, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Timothy T. Reck, was convicted of two counts of assault in the first degree, see § 13A-6-20, Ala.Code 1975, and one count of assault in the third degree, see of § 13A-6-22, Ala.Code 1975. The circuit court sentenced Reck to 143 months’ imprisonment for each first-degree-assault conviction and to 12 months’ imprisonment for the third-degree-assault conviction. The circuit court ordered that the sentences were to run concurrently. The court further ordered Reck to pay a total of $600 in fines, $250 to the Crime Victims Compensation Fund, and court costs.

The evidence presented at trial indicated the following pertinent facts. On October 30, 2004, Donna Loving was returning to Birmingham from a shopping trip in Foley with her two sons, Jordan, who was eight years old at the time, and Taylor, who was two years old at the time. Loving was driving a Dodge Durango pick-up truck; her older son had laid over the center console to go to sleep while her younger son was in a car seat. While driving down a county road, Reck, who was driving a Dodge truck, crossed the road and T-boned Loving’s vehicle. Loving and her older son Jordan sustained injuries and were airlifted to a local hospital. Loving underwent several surgeries while in the hospital to repair broken bones in both legs and injuries to her left elbow.

Loving testified that Jordan, who is an insulin-dependent diabetic, suffered “really bad” cuts from all the shattered glass in the vehicle. (R. 55.) Loving explained that Jordan had a gash on the back of his head and that his left ear was almost cut off. Jordan also sustained a significant cut to his left shoulder that was approximately two to three inches in length from a piece of glass, leaving a scar on his shoulder. Loving stated that Jordan was going to have to have surgery on his shoulder to remove a keloid that had developed at the site of the injury. Loving further testified that Jordan had “little nicks” on his face from the glass that make it appear as though he was “shot in the face with a bird shot.” (R. 56.) On cross-examination, Loving testified that Jordan could very well have kidney damage as a result of the accident because of the trauma and Jordan’s resulting high blood-sugar levels.

Reck consented to a blood test. Blood was taken from Reck approximately two hours after the accident. An analysis of the blood taken from Reck indicated that Reek’s blood-alcohol content at the time was .295 grams per 100 milliliters for ethanol. Kirt Harper, a forensic toxicologist with the Alabama Department of Forensic Sciences, testified that the level of ethanol in Reek’s blood was three and a half times the .08 level that constitutes driving under the influence of alcohol under Alabama law. Reck was charged with two counts of assault in the first degree and one count of assault in the third degree.

Reek’s case was tried before a jury. After both sides had rested and the court had instructed the jury on the applicable law, the jury found Reck guilty of two counts of assault in the first degree (Donna Loving and Jordan) and one count of assault in the third degree (Taylor). This appeal followed.

The sole issue raised by Reck on appeal is whether the State presented sufficient evidence to support the jury’s verdict— finding Reck guilty — of one count of assault in the first degree as it relates to Jordan. Specifically, Reck contends that the State presented insufficient evidence demonstrating that Jordan sustained a serious physical injury.

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.” ’ Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘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 [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), cert. denied, 891 So.2d 998 (Ala.2004) (quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992)).

Section 13A-6-20(a)(5), Ala.Code 1975, provides that “a person commits the crime of assault in the first degree if while driving under the influence of alcohol or a controlled substance or any combination thereof in violation of Section 32-5A-191 he causes serious bodily injury to the person of another with a motor vehicle.” “Serious physical injury” is defined as a “[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.” § 13A-1-2(14), Ala.Code 1975.

In this case, the State presented very little evidence regarding Jordan’s injuries. Jordan’s mother testified that Jordan’s left ear was almost cut off in the wreck. She further testified that Jordan had a two- to three-inch scar on his left shoulder and “little nicks” on his face from shattered glass. The State offered no medical testimony regarding the extent of Jordan’s injuries. Indeed, the only medical evidence offered regarding Jordan’s injuries was hospital medical records indicating that Jordan sustained multiple abrasions and a laceration to his left shoulder. Further, Jordan did not testify regarding the effects of his injuries. The only testimony offered regarding Jordan’s continued medical problems was that of his mother, who testified that Jordan had a keloid caused by his original shoulder injury that would require additional surgery. This Court has repeatedly held that there was evidence sufficient to create a jury question as to whether a victim sustained a “serious physical injury” where the State presented expert medical testimony and/or the victim testified regarding the effects of his or her injuries. See Marlowe v. State, 854 So.2d 1182 (Ala.Crim.App.2002), aff'd, 854 So.2d 1189 (Ala.2003) (finding sufficient evidence of “serious physical injury” based on treating physician’s testimony and victim’s testimony). See also Sizemore v. State, 686 So.2d 544 (Ala.Crim.App.1996) (finding sufficient evidence of “serious physical injury” where victim testified regarding extent of her injuries following automobile collision); James v. State, 654 So.2d 59 (Ala.Crim.App.1994) (State established that the victim suffered “serious physical injury” by the victim’s testimony). Loving’s testimony regarding her son’s injuries, without medical testimony or Jordan’s testimony, was insufficient to establish that Jordan suffered a “serious physical injury.” See, e.g. Hinkle v. State, 67 So.3d 161 (Ala.Crim.App.2010) (holding evidence of serious physical injury insufficient where victim was shot in right cheek but did not have to have surgery and victim denied having any long-term effects from the shooting).

However, we conclude that the evidence was sufficient to establish the lesser-included offense of assault in the third degree under § 13A-6-22(a)(2), Ala.Code 1975, which provides that “[a] person commits the crime of assault in the third degree if ... [h]e recklessly causes physical injury to another person.” Section 13A-1-2(12), Ala.Code 1975, defines “physical injury” as “[ijmpairment of physical condition or substantial pain.” The testimony presented at trial regarding Jordan’s condition at the scene of the wreck was sufficient to establish that Jordan suffered a “physical injury” and to establish a prima facie case of assault in the third degree.

Because the State failed to present sufficient evidence showing that Jordan sustained serious physical injury, it failed to establish a prima facie case of assault in the first degree, and the circuit court erred in denying Reek’s motion for a judgment of acquittal as to that charge. However, the circuit court instructed the jury on the lesser-included offense of third-degree assault, and, although the State presented insufficient evidence to support a conviction for assault in the first degree, the State presented sufficient evidence to support a conviction for assault in the third degree. Therefore, we remand this cause to the circuit court for it to enter a judgment finding Reck guilty of the lesser-included offense of third-degree assault and to resentence Reck accordingly. See Cockrell v. State, 890 So.2d 168 (Ala.Crim.App.2003), aff'd, 890 So.2d 174 (Ala.2004).

REVERSED AND REMANDED.

WISE, P.J., and WELCH, J., concur. WINDOM, J., concurs in the result. MAIN, J., dissents, with opinion.

MAIN, Judge,

dissenting.

I believe that, under this Court’s standard of review, the State presented minimally sufficient evidence to support the submission of the case to the jury, and, the jury having resolved any conflicts in the evidence or credibility choices adversely to Reck, this Court should not go behind the jury’s verdict. The State introduced the child victim’s medical records, and I believe that those records, coupled with the mother’s testimony that the child’s ear was almost cut off in the collision, that the child had several scars, and that the child had yet to have another surgery to remove a keloid from his shoulder met the State’s burden of showing the child victim’s injuries to be serious physical injuries under the statute defining first-degree assault. There is no requirement that the State introduce expert testimony regarding the victim’s injuries. Thus, I would affirm Reek’s conviction and sentence. For this reason, I respectfully dissent.

      . A keloid is a raised growth of fibrous scar tissue.

      . Although § 13A-6-20(a)(5), Ala.Code 1975, references "serious bodily injury” instead of "serious physical injury,” this Court has previously recognized that the term “serious physical injury” is the equivalent of the term "serious bodily injury” as it pertains to interpreting § 13A-6-20(a)(5). See Hemrick v. State, 922 So.2d 967, 969 (Ala.Crim.App.2005).

      . Indeed, Reck concedes in his brief on appeal that the evidence in the instant case showed that Jordan suffered some physical injuries as a result of the collision.


author: STUART, Justice.

text:
    Ex parte State of Alabama. (In re Timothy T. RECK v. STATE of Alabama).
    1100640.
    Supreme Court of Alabama.
    June 30, 2011.
    Luther Strange, atty. gen., and Prim F. Escalona, deputy atty. gen., and Jean A. Therkelsen, asst. atty. gen., for petitioner.

      Leonard F. Mikul, Bay Minette, for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   STUART, Justice.

This Court granted the State’s petition for a writ of certiorari to determine whether sufficient evidence of the element of “serious bodily injury” as defined as “serious and protracted disfigurement” for purposes of a first-degree-assault offense can be established by the testimony of a lay witness or as a matter of law can be presented only through medical testimony or the victim’s testimony. Specifically, with regard to this case, the issue is whether a mother’s testimony concerning her child’s suffering “serious and protracted disfigurement” is sufficient evidence of the serious-bodily-injury element of first-degree assault to present the question to the jury. The Court of Criminal Appeals held that it was not. Reck v. State, 84 So.3d 151 (Ala.Crim.App.2010). We reverse and remand.

Facts

The evidence presented at trial, which was conducted in March 2010, established that in October 2004 a two-vehicle accident occurred on Highway 59 in Baldwin County. Timothy T. Reck, who was intoxicated at the time, drove his vehicle into a vehicle being driven by Donna Loving. Loving’s two sons were passengers in the vehicle. Loving testified that after the accident she and her eight-year-old son were removed from her vehicle and flown to a hospital. She stated that her son’s face and upper body were cut severely by broken glass in the accident. According to Loving, her son suffered a gash on the back of his head, his left ear was almost cut off, and his shoulder was cut by a two- to three-inch piece of glass. When asked during her testimony if her son had any noticeable disfigurement from the accident, Loving stated that the cut on his shoulder had formed a painful keloid and that he had seen a surgeon about its removal. Additionally, she explained that her son’s face has numerous little scars caused by shattered glass that had nicked his face.

The medical records of the hospital at which Loving’s son was treated following the accident were admitted into evidence. Those records indicate that Loving’s son was treated for two lacerations on the left shoulder, one of which was one centimeter and the other of which was seven centimeters. At the conclusion of the evidence, the State stipulated that the injuries to Loving’s son were not “life-threatening.”

Standard of Review

When an appellate court is presented with a pure question of law, the court’s review is de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003).

Discussion

The State presents an issue of first impression: Whether, to establish a prima facie case of first-degree assault pursuant to § 13A-6-20(a)(5), Ala.Code 1975, .the State, to present sufficient evidence of the element that the defendant caused “serious bodily injury” as defined as “serious and protracted disfigurement,” must present either medical testimony and/or testimony from the victim. The Court of Criminal Appeals held that “Loving’s testimony regarding her son’s injuries, without medical testimony or [her son’s] testimony, was insufficient to establish that [her son] suffered a ‘serious physical injury.’ ” 84 So.3d at 154.

“A person commits the crime of assault in the first degree if ... [w]hile driving under the influence of alcohol or a controlled substance or any combination thereof in violation of § 32-5A-191 he causes serious bodily injury to the person of another with a motor vehicle.” § 13A-6-20(a)(5), Ala.Code 1975. In Hemrick v. State, 922 So.2d 967, 969 (Ala.Crim.App.2005), the Court of Criminal Appeals held that “[t]he term “serious physical injury” is the equivalent of the term “serious bodily injury.” “Serious physical injury” is defined in the Criminal Code as a “[physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.” § 13A-1-2(14), Ala.Code 1975.

In Hunter v. State, 866 So.2d 1177 (Ala.Crim.App.2003), the Court of Criminal Appeals discussed “serious and protracted disfigurement” in relation to the serious-physical-injury element of the offense of first-degree assault, stating:

“Here, we focus on the ‘serious and protracted disfigurement’ element of [§ 13A-6-20, Ala.Code 1975]. ‘Disfigurement’ is defined as ‘[a]n impairment or injury to the appearance of a person or thing.’ Black’s Law Dictionary 480 (7th ed.1999). ‘Protracted’ is defined as ‘prolong[ed] in time or space.’ Merriam-Webster’s Collegiate Dictionary (10th ed. 1999)....
“Most Alabama cases discussing ‘serious physical injury’ concern ‘physical injury which creates a substantial risk of death, or ... protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.’ Thus, there is little guidance in Alabama caselaw concerning what constitutes a serious and protracted disfigurement. Some cases discussing serious and protracted disfigurement also discuss the substantial risk of death or protracted impairment of health. See Lee v. State, 727 So.2d 887 (Ala.Crim.App.1998) (in which this Court implied that the mere presence of a scar resulting from a gunshot wound will not elevate ‘physical injury’ to ‘serious physical injury’). Other cases do not indicate which part of the statute is implicated. See Pope v. State, 586 So.2d 1003 (Ala.Crim.App.1991) (holding that testimony that the victim was hospitalized for three days and was unable to work for one and one-half months and that staples had to be used to hold wound together, along with victim’s exhibition of his scars to the jury, was sufficient to present a jury question on the issue of the existence of serious physical injury).
“Other jurisdictions whose definition of serious physical injury, like Alabama’s, include a serious and protracted disfigurement have found a scar sufficient to constitute serious physical injury. See State v. Nival, 42 Conn.App. 307, 678 A.2d 1008 (1996) (where jury observed the victim’s one-half-inch facial scar and evidence was presented that the scar was permanent there was sufficient evidence to create jury question as to whether the victim had suffered a serious physical injury); State v. Anderson, 370 N.W.2d 703 (Minn.Ct.App.1985) (a long sear present two and one-half years after the injury was a serious permanent disfigurement); State v. Bledsoe, 920 S.W.2d 538 (Mo.Ct.App.1996) (a one-and-one-half-inch cut on the victim’s chin leading to scarring, a one- and-one-half-inch scar on lower lip, and a scar between her eyes constituted serious disfigurements); State v. Pettis, 748 S.W.2d 793 (Mo.Ct.App.1988) (holding that serious physical injury as applied to first-degree assault would include a four-inch permanent scar as a result of a knife wound); People v. Wade, 187 A.D.2d 687, 590 N.Y.S.2d 245 (1992) (a scar that was visible eight months after victim’s face was cut with a razor from ear to mouth was serious permanent disfigurement); People v. Greene, 488 N.Y.S.2d 812, 111 A.D.2d 183 (1985) (serious physical injury includes a knife wound on the victim’s neck that required 120 stitches to close and that resulted in a substantial keloid scar).”

866 So.2d at 1179-80.

Consistent with the foregoing, we conclude that testimony from a lay witness can be sufficient to establish this element for submission of the case to a jury. “Disfigurement” of the human body is a condition that competent persons are capable of observing and that requires no special skill to detect. Likewise, a competent person with firsthand knowledge of the victim’s injury, recovery, and disfigurement is capable of testifying as to the seriousness of the disfigurement and the passage of time concerning the disfigurement. Therefore, we conclude that a lay witness who has observed the victim’s wound and resulting sear and has personal knowledge of the victim’s recovery from the injury is capable of presenting sufficient evidence, creating a question for the jury, with regard to whether a victim has suffered a “serious and protracted disfigurement.” Although in some cases the testimony of a lay witness regarding the victim’s “serious and protracted disfigurement” may not be the strongest or most persuasive evidence of this element, we cannot conclude that testimony from a lay witness as to that element is as a matter of law insufficient to establish prima facie evidence of this element. Cf. United States v. Muyet, 994 F.Supp. 501, 519 (S.D.N.Y.1998)(holding that even though the victims did not testify as to the precise nature of their injuries and the government did not provide any expert medical testimony, the circumstances surrounding an incident could have led a jury to conclude that the victims suffered serious physical injury).

In light of our conclusion that sufficient evidence of the element of “serious bodily injury” in the form of a “serious and protracted disfigurement” can be established by testimony from a lay witness, the Court of Criminal Appeals erred in rejecting Loving’s testimony as to her son’s injuries and in holding that because neither medical testimony nor Loving’s son testified the State failed to present sufficient evidence that Loving’s son had suffered a serious bodily injury.

Conclusion

Based on the foregoing, the judgment of the Court of Criminal Appeals is reversed and this case remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and WOODALL, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.

      . As the Court of Criminal Appeals noted in its opinion, "[a] keloid is a raised growth of fibrous scar tissue.” Reck v. State, 84 So.3d at 152 n. 1.

       Note from the reporter of decisions: On October 21, 2011, on remand from the Alabama Supreme Court, the Court of Criminal Appeals affirmed, without opinion (CR-09-1411).


author: BURKE, Judge.

text:
    James McCONICO, Jr. v. STATE of Alabama.
    CR-09-1603.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2011.
    Rehearing Denied Oct. 28, 2011.
    James McConico, Jr., pro se.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   BURKE, Judge.

James McConico, Jr., appeals from the circuit court’s denial of his most recent Rule 32, Ala. R.Crim. P. petition, which sought relief from his June 3, 1999, murder conviction. McConico has filed at least six Rule 32 petitions, none of which have been successful.

McConico filed the present petition as a “Writ of Habeas Corpus” in Escambia County on October 28, 2009. The Escambia Circuit Court transferred the petition to the Jefferson Circuit Court, where it was subsequently treated as a Rule 32 petition. In that petition, McConico asserted that the State had violated the provisions of the Uniform Mandatory Disposition of Detainers Act, § 15-9-80-88, Ala. Code 1975, because, “[t]he Respondents didn’t take [him] to trial on the indictment for murder until June, 1999 about (5) five years from its return and McConico’s demand of disposition of his intrastate indictment for murder.” (C. 158.) In the petition, McConico also “avers [that] he is innocent of this charge of murder.” (C. 158.)

The circuit court denied his petition on the grounds that it was time-barred by Rule 32.2(c), Ala. R.Crim. P.; that it was precluded by Rule 32.2(a)(3) because the issues raised could have been but were not raised at trial; and that the petition was precluded as successive under Rule 32.2(b). (C. 5-6.) This Court may affirm a circuit court’s ruling on a postconviction petition if the ruling is correct for any reason. Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009).

Rule 32.2(b) states that courts shall not grant relief on successive petitions that raise the same or similar grounds on behalf of the same petitioner. McConico argues that his current Rule 32 petition is not successive because “[n]either of these claims [raised in the current petition] presently raised by McConico in his seventh Rule 32 Petition have been raised on the exact set of facts that are the basis of these claims that were before the trial court.” (McConico’s brief, at 11.) Therefore, he contends that his present claims fall under the second prong of Rule 32.2(b), which states:

“A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence' or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard and that failure to entertain the petition would result in a miscarriage of justice.”

McConico cites Blount v. State, 572 So.2d 498 (Ala.Crim.App.1990), for the proposition that his petition cannot be precluded as successive because there is no evidence of a prior judgment on the merits in the record on appeal.

However, if McConico’s claims were not raised in previous petitions, then it would be impossible for the trial court to have adjudicated them on the merits. See Whitt v. State, 827 So.2d 869, 875 (Ala.Crim.App.2001) (“[W]here a particular claim in a petition is new and was not raised in a previous petition (i.e., the claim falls under the second part of Rule 32.2(b)), the ‘decided-on-the-merits’ requirement is obviously inapplicable, because the claim is being raised for the first time.”) In Whitt, this Court went on to state:

“Blount is hereby overruled to the extent that it states that a subsequent petition on different grounds is not successive unless a prior petition was decided on its merits. We now interpret Rule 32.2(b) as federal courts interpret habeas corpus petitions to mean that new claims in subsequent petitions are barred as being successive unless ‘the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.’ Rule 32.2(b), Ala. R.Crim. P.”

827 So.2d at 876.

McConico has failed to show that good cause exists why these new grounds were not known or could not have been known when he filed any of his previous six petitions. Additionally, McConico’s claims are not jurisdictional. The Uniform Mandatory Disposition of Detainers Act applies to interstate detainers, not intrastate detainers. See Ex parte Springer, 619 So.2d 1267, 1269 (Ala.1992) (holding that the provisions of the Uniform Mandatory Disposition of Detainers Act dealing with intrastate prisoners is void). McCon-ico never alleged that he was being held under an interstate detainer. Therefore, he has failed to meet the requirements for the exceptions to Rule 32.2(b).

Additionally, McConico does not mention the Uniform Mandatory Disposition of Detainers Act in his brief. This Court has held that “[Ajllegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned. We will not review issues not listed and argued in brief.” Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995) (internal citations omitted).

The only other ground raised in his petition is the bare assertion that he is innocent of murder. In his brief, McConi-eo claims that the Alabama Department of Forensic Sciences falsified DNA evidence that was introduced at his trial. He claims to have submitted medical texts to the circuit court that proved that “the ADFS couldn’t have perform [sic] the DNA [test] in 1995 and obtained the results they presented in McConico’s trial.” (McConico’s brief, at 11.)

Inasmuch as this could be considered a claim of newly discovered evidence, McConico has failed to meet the requirements of Rule 32.1(e), Ala. R.Crim. P., which states that a petitioner must show:

“(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence the petitioner received.”

Accordingly, that argument is without merit and, as the circuit court held, precluded under Rule 32.2(a)(3), because it could have been, but was not, raised at trial.

Rule 32.7(d), Ala. R.Crim. P., permits the trial court to dismiss the petition “[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings.” Because McConico’s claims are precluded, summary disposition was appropriate, and the circuit court did not abuse its discretion in dismissing McConico’s petition.

Moreover, Judge Kellum’s writing concerning petitioners who have filed an exorbitant number of petitions is particularly applicable here:

“I believe that allowing [McConico] 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), an Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of [McConico] 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)-

In Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009), this court examined the possible sanctions that could be imposed by a court when dealing with petitioners who have used the judicial system in an abusive and unproductive manner by bombarding the courts with a barrage of repetitive filings:

“Moreover, in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), this Court, quoting the United States Court of Appeals for the Eleventh Circuit in Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir.1986), cited with approval the sanctions a court may legally impose when faced with litigious and prolific pro se litigants:
“ ‘Courts have an “inherent power ... to regulate the activities of abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.” Cotner v. Hopkins, 795 F.2d 900, 902 (10th Cir.1986). While those conditions may be “onerous,” they “cannot be so burdensome, however, as to deny a litigant meaningful access to the courts.” Cotner, 795 F.2d at 902.
“ ‘ “In devising methods to attain the objective of curtailing the activity of such a prisoner, however, courts must carefully observe the fine line between legitimate restraints and an impermissible restriction on a prisoner’s constitutional right of access to the courts. Various courts have employed and approved a variety of injunctive devices.
“ ‘ “As to prisoners who bring frequent or repetitious claims, courts have:
“ ‘ “-enjoined prisoner litigants from relitigating specific claims or claims arising from the same set of factual circumstances;
“ ‘ “-required litigants to accompany all future pleadings with affidavits certifying that the claims being raised are novel, subject to contempt for false swearing;
“ ‘ “-directed the litigant to attach to future complaints a list of all cases previously filed involving the same, similar, or related cause of action, and to send an extra copy of each pleading filed to the law clerk of the chief judge of the district;
“ ‘ “-directed the litigant to seek leave of court before filing pleadings in any new or pending lawsuit;
“ ‘ “-permitted abusive prisoner litigants to file in forma pauperis only claims alleging actual or threatened physical harm; and requiring payment of a filing fee to bring other claims;
“ ‘ “-limited the number of filings by a particular inmate; and
“ ‘ “-entered injunctions prohibiting the abusive prisoner from acting as a writ writer or jailhouse lawyer for other inmates.
“ ‘ “We do not here intend to indicate how this Court would treat any of the above injunctions in a particular case, but cite them as examples of how other courts have handled the problem. Other restrictions which might be considered by a court attempting to deal with the problems created by a litigant such as [McConico] include:
“ ‘ “-limitation of the number of pages to a complaint and other pleadings;
“ ‘ “-requiring a plaintiff to file an affidavit setting forth what attempts he has made to obtain an attorney to represent him;
“ “-limitation of further pleadings without order of court, after the complaint has been filed.
“ ‘ “This list is intended to be neither exhaustive nor limiting. As new ideas develop and old devices prove ineffective, the judiciary must respond with imaginative new techniques designed to protect the court access of all litigants.” Procup v. Strickland, 792 F.2d 1069, 1072-73 (11th Cir.1986).’
531 So.2d at 326-27.”

Ex parte Thompson, 38 So.3d at 124-25. See also Randal S. Jeffrey, Restricting Prisoners’ Equal Access to the Federal Courts: The Three Strikes Provision of the Prison Litigation Reform Act and Substantive Equal Protection, 49 Buffalo L.Rev. 1099, 1141 (2001).

Courts can and should impose such sanctions upon petitioners, such as McCon-ico, who use the judicial system to pass the time.

For the foregoing reasons, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

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

      . In his brief, McConico states that he filed a petition for writ of habeas corpus in the Barbour Circuit Court that is not a part of the record on appeal. (McConico’s brief, at 4.) He filed motions to supplement the record with the circuit court and with this Court, both of which were denied.


text:
    Dwight DERAMUS v. ALABAMA BOARD OF PARDONS AND PAROLES.
    CR-09-1624.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 2011.

      Jerry M. Blevins, Montgomery, for appellant.
    Gregory O. Griffin, Sr., gen. counsel, and Dana L. Pittman, asst. atty. gen., Alabama Board of Pardons & Paroles, for appellee.
   BURKE, Judge.

Dwight Deramus appeals the Montgomery Circuit Court’s dismissal of his petition for a writ of certiorari in which he sought the reinstatement of his parole after it was revoked by the Alabama Board of Pardons and Paroles (“the Board”).

On April 17, 1996, Deramus was sentenced to 2 concurrent terms of 20 years in prison for 2 drug offenses. Deramus was granted parole in May 2006. One condition of Deramus’s parole was that he “shall not violate any law.” (C. 40.) On December 6, 2006, Deramus’s parole officer reported that Deramus had violated that condition because, on November 30, 2006, he was arrested and charged with trafficking in marijuana. On December 18, 2006, the Board held a hearing concerning Dera-mus’s alleged parole violation, but the hearing was terminated and reset so that the parole officer could supplement his report concerning an additional charge. On December 20, 2006, the parole officer supplemented his report to add a parole violation based on a second charge against Deramus for trafficking in marijuana. On December 27, 2006, the Board held another hearing, and the hearing officer found that there was insufficient evidence to support the parole-violation charges. Thus, at this time, the Board did not revoke Dera-mus’s parole.

On February 9, 2009, Deramus was again charged with violating the condition of his parole that required him not to “violate any law.” (C. 62.) The parole-violation charge stated that Deramus had been arrested on November 30, 2006, and had been charged with trafficking in marijuana and that, on December 1, 2008, he had pleaded guilty to two counts of first-degree possession of marijuana. On March 16, 2009, at the hearing concerning this parole-violation charge, a certified copy of Deramus’s guilty-plea conviction was presented to the hearing officer. The hearing officer found that Deramus was guilty of the parole-violation charge, and the hearing officer recommended that Deramus’s parole be revoked. Based on that recommendation, the Board, on March 17, 2009, revoked Deramus’s parole.

On April 24, 2009, Deramus filed a petition for a writ of certiorari in the Montgomery Circuit Court, asking the court to “enter a judgment finding that the revocation of [his] parole on March 17, 2009, was barred by the Double Jeopardy clause of the U.S. Constitution, as well as the doctrines of res judicata and collateral estoppel, and [to] order [his] parole reinstated.” (C. 5-7.) In response, the Board filed an “answer and motion for summary judgment,” arguing that neither double-jeopardy principles nor the doctrines of res judicata or collateral estoppel barred the revocation of Deramus’s parole, and the Board asked the circuit court to dismiss Deramus’s petition. (C. 13-37.) Deramus then filed a motion entitled “Plaintiffs Statement in Opposition to Defendant’s Motion for Summary Judgment.” (C. 82.)

The circuit court held a hearing on the parties’ motions on December 15, 2009. Proposed orders were submitted to the circuit court by the parties on December 16, 2009, and on December 17, 2009. On January 8, 2010, at 3:36:55 p.m., the circuit court issued an order that entered a summary judgment in favor of the Board and dismissed with prejudice Deramus’s petition for a writ of certiorari. However, approximately 10 minutes later, at 3:47:10 p.m., the circuit court issued another order that held that the Board’s revocation of Deramus’s parole was barred by the doctrines of res judicata and collateral estop-pel. That order purported to vacate the revocation of Deramus’s parole and stated that “Deramus is to be immediately reinstated on parole.” (C. 98.) Both orders were electronically signed by the circuit judge. The second order was attached to a notice that was entitled “Notice of Court Action.” (C. 114.) That notice stated that it concerned Deramus’s motion in opposition to the Board’s motion for a summary judgment and that the disposition of Dera-mus’s motion was “no action.” (C. 114.) On January 11, 2010, entries were made in the case-action summary reflecting that the case had been disposed of by a summary judgment on January 8, 2010, and that Deramus’s petition had been dismissed with prejudice.

On February 23, 2010, Deramus filed a petition for a writ of habeas corpus in the Elmore Circuit Court, asking that court to release him from continued incarceration based on the order from the Montgomery Circuit Court that purported to vacate the revocation of his parole.

On March 15, 2010, the Board filed a motion in the Montgomery Circuit Court requesting that the court correct the record under Rule 60(a), Ala. R. Civ. P., to accurately reflect that a summary judgment had been entered in favor of the Board. On that same day, Deramus filed an opposition to the Board’s Rule 60(a) motion. Also, on the same day, the circuit court entered an order, which stated:

“The Board’s motion for relief from order pursuant to Rule 60, Ala. R. Civ. P., is hereby granted.
“The Court hereby orders that the record accurately reflect that summary judgment was entered in favor of the Alabama Board of Pardons and Paroles on January 8, 2010. The above action is hereby dismissed, with prejudice.
“Deramus’ motion in opposition ... is hereby denied.”

(C. 131.)

On April 13, 2010, Deramus filed a motion to alter, amend, or vacate the judgment under Rule 59, Ala. R. Civ. P. That motion incorporated by reference the arguments that were set forth earlier in Deramus’s opposition to the Board’s Rule 60 motion, and it alleged that the circuit court was without jurisdiction to enter its March 15, 2010 order under Rule 60. Alternatively, Deramus asserted that the circuit court’s entry of a summary judgment in favor of the Board was in error, and he repeated his arguments concerning the doctrines of res judicata and collateral es-toppel. The circuit court did not take any action on Deramus’s Rule 59 motion.

On July 26, 2010, Deramus filed a notice of appeal to this Court.

In his principal brief on appeal, Dera-mus’s only contention is that “the second parole revocation proceeding initiated on February 9, 2009, which was premised on the identical facts/events as the parole revocation proceeding initiated on December 6, 2006, which resulted in a finding of insufficient evidence to revoke Deramus’ parole, was barred by the doctrines of res judicata and collateral estoppel.” Dera-mus’s brief, at 10. The Board responds that Deramus’s appeal of that issue is untimely and, thus, that this Court lacks subject-matter jurisdiction to consider the appeal. We agree with the Board.

As the Court of Civil Appeals has held:

“Subject to certain exceptions that are not applicable here, Rule 4(a)(1), Ala. R.App. P., requires that the notice of appeal be filed within 42 days of the entry of the challenged judgment. Rule 4(a)(3), Ala. R.App. P., provides that the filing of a postjudgment motion made pursuant to Rule 59 may toll the running of the time for filing a notice of appeal until (1) the motion is ruled upon by the court, or (2) the date the motion has been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. ... ‘ “[T]he timely filing of a notice of appeal is a jurisdictional act.” ’ Allen v. Independent Fire Ins. Co., 743 So.2d 490, 492 (Ala.Civ.App.1999) (quoting Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985)).... The failure to appeal within the prescribed time is fatal and requires the dismissal of the appeal.”

Brown v. Brown, 808 So.2d 40, 41-42 (Ala.Civ.App.2001).

Furthermore, “an order entered pursuant to Rule 60(a) relates back to the date of the order or judgment it amends and does not bear on the timeliness of the appeal from the order or judgment.” Hargrove v. Hargrove, 65 So.3d 950, 952 (Ala.Civ.App.2010). Also, Rule 60(a) “motions do not toll the time for taking an appeal from the underlying judgment.” Landers v. Landers, 812 So.2d 1212, 1216 (Ala.Civ.App.2001).

In his principal brief on appeal, Deramus does not challenge the correctness or validity of the circuit court’s order granting the Board’s Rule 60(a) motion. Instead, Deramus challenges only the original judgment in favor of the Board, which was later clarified by the order granting the Board’s Rule 60(a) motion. The circuit court’s clarification under Rule 60(a) relates back to the date of the judgment it clarified. That judgment was entered on January 8, 2010. Deramus filed his notice of appeal on July 26, 2010, which was not within 42 days of the entry of the challenged judgment. See Rule 4(a)(1), Ala. R.App. P. Also, Deramus filed his Rule 59 motion to alter, amend, or vacate the judgment on April 18, 2010, which was not within 30 days of the entry of the challenged judgment, and, thus, the Rule 59 motion did not toll the running of the time for filing a notice of appeal from the original judgment. See Rule 59(e), Ala. R. Civ. P. (providing that “[a] motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment). Therefore, Dera-mus’s appeal of the original judgment in favor of the Board is untimely; thus, this Court lacks jurisdiction to consider the appeal.

Based on the foregoing, we dismiss the appeal.

APPEAL DISMISSED.

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

      . It appears that Deramus’s reliance on the January 8, 2010, order that purported to vacate the revocation of his parole was unfounded and that the Board's motion to correct the record under Rule 60(a) was unnecessary because, on January 11, 2010, entries were made in the case-action summary reflecting that the case had been disposed of by a summary judgment and that Deramus’s petition had been dismissed with prejudice. See Rule 58(a), Ala. R. Civ. P. ("A judge may render an order or a judgment ... by making or causing to be made a notation in the court records.”). Nevertheless, due to our disposition of this case, we need not decide this issue.

      . In his reply brief, Deramus alleges for the first time on appeal that the circuit court’s ruling on the Board’s Rule 60(a) motion amounted to more than correcting a mere "clerical mistake” and, thus, that the order granting the Board’s motion under Rule 60(a) was erroneous. However, it is well settled that “an appellant may not raise a new issue for the first time in a reply brief.” Woods v. State, 845 So.2d 843, 846 (Ala.Crim.App.2002). Deramus also states that the circuit court lacked jurisdiction to rule on the Board’s Rule 60(a) motion. However, Rule 60(a) provides, in pertinent part: “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pen-dency of an appeal or thereafter, such mistakes may be so corrected by the trial court.” (Emphasis added.) Therefore, the circuit court had jurisdiction to make a correction under Rule 60(a) at any time, and Deramus has not properly presented to this Court the issue whether the circuit court’s ruling under Rule 60(a) was correct.