text:
    Barbara MOUSSEAU v. CITY OF DAPHNE BOARD OF ZONING ADJUSTMENTS.
    2070334.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2008.

      D. Robert Stankoski, Jr., and Joshua P. Myrick of Stankoski, L.L.P., Fairhope, for appellant.
    Jerome E. Speegle, Anthony M. Hoffman, and Jennifer S. Holifield of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.
   THOMAS, Judge.

Barbara Mousseau appeals a judgment of the Baldwin Circuit Court affirming a decision by the City of Daphne Board of Zoning Adjustments (“the Zoning Board”) that prohibited Mousseau from reconstructing or restoring a mobile home on her property after the mobile home was damaged by fire. We affirm.

Mousseau lives in a frame house on property located on Parker Lane in Daphne (“the City”). A 31-year-old, 3-bedroom mobile home is located on the same property. In the early morning hours of January 15, 2004, a fire started in the kitchen of the mobile home on Mous-seau’s property. Before firefighters arrived on the scene, the fire had damaged much of the kitchen; the fire was extinguished when it burned through, and burst, a water line. The City’s fire chief inspected the fire-damaged property, determined that it was unsafe for reasons other than the fire damage, and asked the City’s building official to inspect the mobile home. The building official concluded that the structure was uninhabitable and could “not be repaired economically and/or satisfactorily to remedy [its] unsafe conditions.” Soon after the fire, Mousseau, her brother David Gautney, and other family members began to repair the damage to the kitchen; they also undertook repairs and updates to other parts of the mobile home that had not been affected by the fire.

On July 19, 2004, the City Council passed a resolution declaring that the mobile home was a public nuisance and should be demolished. On July 2, 2004, Mousseau’s brother, David Gautney, wrote a letter to City’s building official, Ronnie Phillips, requesting a 90-day extension to complete repairs on the mobile home. Phillips denied the request on July 13, 2004. On September 9, 2005, Phillips wrote a letter to the owners of the property, informing them that, in his opinion, the mobile home was “a nonconforming structure that [had] been damaged and/or destroyed to an extent exceeding fifty percent of the reasonable estimated replacement cost and therefore cannot be reconstructed or restored to the same nonconforming use, except upon the approval of the [Zoning Board].”

The applicable land-use-and-development City ordinance, enacted on September 21, 1987, provides that mobile homes are permitted only in “R-5” (mobile-home-residential) districts. Mousseau’s property on Parker Lane is in an “R-3” (high-density single-family-residential) district. Section 9-2 of the ordinance, entitled “Nonconformance” (hereinafter sometimes referred to as “the 50% ordinance”) provides, in pertinent part:

“Any structure or use of land existing at the time of the enactment of this Ordinance and amendments thereto and not in conformance with its use regulations and provisions, may be continued subject to the following provisions:
“(a) Unsafe Structures:
“Any structure or portion thereof declared unsafe by any authority may be restored to a safe condition provided the restoration is in compliance with requirements of this Section.
“(b) Alterations
“Any change in a nonconforming building site or yard area is subject to the following:
“(4) A nonconforming building, ¡structure, or improvement which is hereafter damaged or destroyed to an extent exceeding fifty percent (50%) of the reasonable estimated replacement cost of the strucUire, building or improvement may not be reconstructed or restored to the same nonconforming use, except upon approval of the Board of Zoning Adjustment. Such damaged or destroyed structures that are no longer in use shall be removed and the site cleared at the owner’s expense.”

(Emphasis added.)

Mousseau appealed the decision of the building official to the Zoning Board. A

hearing was held on September 7, 2006, during which William Eady, the City’s director of community development, reported the findings of the building official and displayed photographs of the mobile home showing various conditions that, he said, were “not up to Code [requirements]” and rendered the structure dangerous and uninhabitable. Ead/s report stated that the fire in the mobile home had resulted from a methamphetamine-lab explosion. Richard Stevens, whose property is diagonally across from Mousseau’s property, informed the Zoning Board that he had a newspaper article dated January 15, 2004, stating that the cause of the fire was a “meth lab explosion.”

At the Zoning Board hearing, Mous-seau’s attorney outlined his client’s position as follows: Mousseau had owned the property on Parker Lane since before the City had been incorporated; the mobile home had been “grandfathered in” as a preexisting nonconforming structure pursuant to the City’s land-use-and-development ordinance; and, accordingly, Mous-seau was entitled to restore the mobile home because, she said, the fire damage did not exceed 50% of the estimated replacement cost of the structure. Mous-seau presented evidence indicating that she and other family members had spent approximately $600 on repairs to the mobile home after the fire. Neither Mous-seau nor the City presented any evidence concerning the “reasonable estimated replacement cost” of the mobile home.

Bill Williams, one Mousseau’s neighbors, stated that the mobile home was not “a grandfathered situation” because, he said, the mobile home had been moved onto Mousseau’s property after September 21, 1987, the date on which the City’s land-use-and-development ordinance was enacted. The following exchange then occurred:

“Q. [By Zoning Board member Willie Robison]: Did I hear you say this particular trailer was moved onto the lot after the Land Use Ordinance was passed?
“A. [By Williams]: Yes, it was.
“Q: [By Robison]: I am asking a legal question. Would this trailer come under the grandfather clause if it was moved onto that lot after the land Use Ordinance was passed?
“A. [By Zoning Board attorney Tony Hoffman]: The answer is no.”

Two other Zoning Board members also questioned whether the grandfather clause was applicable to the mobile home. Board member Jeri Hargiss, stating that she had a question “about this grandfather clause,” asked David Gautney “what year was the trailer moved in?” Gautney stated that he was 40 years old and the mobile home had been on the property since he was 6 years old. After summarizing the evidence, Zoning Board Chairman Glen Swaney stated:

“I have one additional point of clarification. It has been mentioned that [the mobile home] is grandfathered in and that it was here before the [land-use ordinance] was passed. Was this unit grandfathered in? Was it there before the Land Use Ordinance?”

Richard Merchant, the building official who succeeded Ronnie Phillips, replied, “We do not know ... because we could not establish a time.”

On September 7, 2006, the Zoning Board denied Mousseau’s request to continue the mobile home as a nonconforming structure. On September 14, 2006, Mousseau timely appealed to the circuit court pursuant to § 11-52-81, Ala.Code 1975, which provides:

“Any party aggrieved by any final judgment or decision of [the] board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo.”

In the circuit court, the Zoning Board moved for a summary judgment, arguing that the mobile home “was not a grandfathered nonconforming structure” subject to the provisions of the 50% ordinance enacted on September 21, 1987, because the mobile home had not been moved onto Mousseau’s property until February 1989. In support of its motion, the Zoning Board attached Mousseau’s February 6, 2007, answers to interrogatories and excerpts from Mousseau’s March 1, 2007, deposition. In response to the interrogatory, “Please identify the date on which the mobile home was placed at [Mousseau’s property on] Parker Lane,” Mousseau stated that “[t]he mobile home was placed on the property in February 1989 and transferred to my name on May 16, 1989.” In deposition testimony, Mousseau stated that she and David White, her former husband and the father of her children, had each owned a half interest in the mobile home. Mous-seau testified that after White died she had, in 1989, purchased from White’s estate his half interest in the mobile home and moved it to her property on Parker Lane.

In opposition to the Zoning Board’s motion, Mousseau argued that the circuit court had no jurisdiction to try the issue of the grandfathered status of the mobile home because that issue had not been presented to the Zoning Board and included in the transcript of the Zoning Board proceedings. In support of that argument Mousseau cited Ex parte Lake Forest Property Owners’ Association, 603 So.2d 1045 (Ala.1992), and White’s Excavation & Construction Co. v. Board of Zoning Adjustments of Daphne, 636 So.2d 422 (Ala.Civ.App.1994). On May 22, 2007, the circuit court denied the Zoning Board’s motion for a summary judgment.

The case was tried in the circuit court on October 23, 2007. The court heard disputed testimony regarding the value of the mobile home in 1989, the current value of the mobile home, and the amount the owners had spent to repair the mobile home after the fire. In addition, the circuit court heard the testimony of Bill Williams, who testified that he lived on Parker Lane, diagonally across from Mousseau’s property. Williams stated that he remembered that the closing on his house had been on November 22, 1988, that he had moved into his house “right before Thanksgiving [of] 1988,” and that he had eaten Thanksgiving dinner in his house. He testified that the mobile home that burned in the fire of January 15, 2004, was not on Mousseau’s property at that time. He also stated that when he moved into his house Parker Lane was within the Daphne city limits.

Mousseau testified at trial that she had moved the mobile home onto her property in February 1988 and that Parker Lane was not, at that time, within the Daphne city limits. When confronted with the fact that she had stated, in answer to the Zoning Board’s interrogatory, that she had placed the mobile home on her property in February 1989, Mousseau explained that she had been “mistaken because [her] ex [husband] died in December, the 27th of ’88 and [the mobile home] was moved right after that.” The Zoning Board offered and the circuit court admitted as a trial exhibit the verified petition for letters of administration on the estate of James White that Mousseau and her father had filed in the Baldwin Probate Court on March 1, 1988. That petition averred that White had died on December 29, 1987.

The circuit court admitted in evidence a document signed by Arthur Witherington, who is Mousseau’s uncle and the owner of a mobile-home park, stating that the appraised value of the mobile home on January 28, 1989, was $2,000. The court also admitted a “Final Settlement Statement,” dated May 16, 1989, pertaining to the estate of James White. That document indicates that, on February 22, 1988, the administrator of the estate had disbursed $95 in order to “move [a] mobile home.” Mousseau acknowledged at trial that the mobile home had first been moved to a mobile-home park in Spanish Fort before it was placed on her property. Mousseau introduced a City annexation and zoning map purporting to show that Parker Lane had been annexed by the City sometime in 1988. The circuit judge admitted the map in evidence, but it noted that the map was undated and did not show that Parker Lane was included in the annexation.

Mousseau’s brother, David Gautney, who had stated at the Zoning Board hearing that the mobile home had been placed on the property when he was 6 years old, testified in the circuit court trial that the mobile home had been placed on the property when he was 20 years old. Mous-seau’s sisters, Candice Danner and Debra Gormandy, testified that the mobile home had been moved to the property in 1987 or 1988. Gormandy stated that she had a one-sixth interest in the mobile home.

On November 14, 2007, the circuit court entered the following judgment:

“1. The Court finds from the evidence that the mobile home in question is not grandfathered because it was placed on the property after the adoption of the Daphne zoning ordinance. The Court bases that decision upon the first set of interrogatory answers submitted by [Mousseau] together with the testimony of the across-the-street neighbor and the date of the final settlement of [James White’s] estate.
“2. The Court having determined that the trailer was not grandfathered, it does not need to make any determination as to whether or not the repairs would exceed fifty (50%) percent of the value.
“3. The Court hereby [afjfirms the decision of the City of Daphne Board of Zoning Adjustments.”

On December 21, 2007, Mousseau appealed to the Alabama Supreme Court. On January 15, 2008, the supreme court detei*-mined that the appeal was within this court’s appellate jurisdiction and transferred the case.

On appeal, Mousseau argues, as she did in opposition to the Zoning Board’s summary-judgment motion, that the circuit court had no jurisdiction to determine that the mobile home was “not grandfathered because it was placed on the property after the adoption of the Daphne zoning ordinance.” Citing Ex parte Lake Forest Property Owners’ Association, 603 So.2d 1045 (Ala.1992), Board of Zoning Adjustment of Hueytown v. Warren, 366 So.2d 1125 (Ala.1979), and White’s Excavation & Construction Co. v. Board of Zoning Adjustments of Daphne, 636 So.2d 422 (Ala.Civ.App.1994), Mousseau contends that that issue was not raised or considered by the Zoning Board and, therefore, that it could not be considered by the circuit court on de novo appeal.

In Lake Forest, the Alabama Supreme Court stated the rule that, on a de novo appeal of a decision by a board of zoning adjustment, the circuit court “may hear only those issues that were properly raised before [the] board of adjustment and that are included in the transcript of the proceedings.” 603 So.2d at 1046. In 'Warren, the supreme court held that “the trial de novo should proceed on the same issues raised in the proceeding before the Board of Zoning Adjustment,” 366 So.2d at 1128, and that “a circuit court is without power to change the issue on appeal de novo,” 366 So.2d at 1129 (emphasis omitted; emphasis added). In White’s Excavation, this court held that, “[ujnder [§ 11-52-81, Ala.Code 1975], the circuit court can examine only those issues which could he properly presented to the Board and is without jurisdiction to try an issue not raised before the Board.” 636 So.2d at 423 (citing City of Homewood v. Caffee, 400 So.2d 375 (Ala.1981)) (emphasis added).

The principles set out in the three decisions Mousseau cites are unassailable. Applying those principles to the facts of this case, however, did not deprive the circuit court of jurisdiction to consider the grandfather issue because that issue was “raised before [the] board of adjustment and ... included in the transcript of the proceedings.” The circuit court did not “change the issue on appeal de novo”; instead, the circuit court examined an issue that not only could have been — but was— presented to the Zoning Board. As our summary of the Zoning Board proceedings indicates, the grandfather issue was considered by the Zoning -Board. Witness Bill Williams opined that the mobile home was not affected by the grandfather-clause provisions of the ordinance because the mobile home had been placed on the pi-op-erty after the enactment of the ordinance. In addition, three members of Zoning Board — Board Chairman Glen Swaney and Board members Willie Robison and Jeri Hargiss — expx-essed concerns about the applicability of the grandfather clause. The transcript of the proceedings indicates that the gi’andfather-clause inquiries came to an end when — and because — Building Official Richard Merchant answered the chairman’s inquiry, “Was this [mobile home] unit grandfathered in? Was it there before the Land Use Ordinance?” with the following statement: “We do not know ... because we could not establish a time.” (Emphasis added.)

Mousseau had the burden of proving that the mobile home was on her property before the City’s land-use ordinance took effect. See 8A Eugene McQuillin, The Law of Municipal Corporations § 25.188.50 at 67-69 (3d ed. rev.2003):

“A nonconforming use will not be recognized in the absence of sufficient competent evidence to prove it was lawfully in existence at the time the ordinance was enacted and that it has continued in existence. The burden of proof is upon the party asserting a right to a nonconforming use to establish the lawful and continued existence of the use at the date of the enactment of zoning laws pertaining to it.”

(Footnotes omitted.) Apparently, after Merchant indicated that the City had no facts to document whether the mobile home was a nonconforming structure that enjoyed grandfathered status, the Zoning Board must have concluded that Mousseau met her burden of proving that the mobile home was a preexisting nonconforming structure. The Zoning Board necessarily decided that issue or it could not have proceeded to apply the 50% ordinance to the mobile home on Mousseau’s property. See generally Douglas Hale Gross, Annot., Zoning: Right to Repair or Reconstruct Building Operating as Nonconforming Use, After Damage or Destruction by Fire or Other Casualty, 57 A.L.R.3d 419 (1974).

“One of the reasons [§ 11-52-81] requires a certified copy of the proceedings before the Board to be filed is to allow the circuit court to frame the issues on appeal de novo.” Board of Zoning Adjustment v. Warren, 366 So.2d at 1129. In the present case, the circuit court appropriately and logically framed the issue on appeal so as to decide the threshold issue before it undertook to decide a potential subissue. In that sense, this case is the opposite of Lawless v. Smith, 481 So.2d 1144, 1147 (Ala.Civ.App.1985), in which this court approved a circuit court’s admission of evidence concerning “logically inherent ‘subissues’ ” that were not presented to the zoning board.

Having determined that the circuit court did not err in reaching the grandfather issue, we must now decide whether its findings on that issue are supported by the record. In Ex parte Squires, 960 So.2d 661, 664 (Ala.2006), the Alabama Supreme Court, quoting from this court’s opinion in Squires v. City of Saraland, 960 So.2d 651, 656 (Ala.Civ.App.2005), reversed on other grounds by Ex parte Squires, stated:

“ ‘The standard of review set forth in Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994), governs:
“ ‘ “The trial court heard this case without a jury. Where evidence is presented to the trial court ore tenus, the court’s findings of fact are presumed correct; its findings will not be disturbed except for a plain and palpable abuse of discretion. The judgment of the trial court based on ore tenus evidence in a nonjury case is presumed to be correct; however, that presumption has no application when the trial court is shown to have improperly applied the law to the facts.” ’ ”

(Internal citations omitted.)

The circuit court’s decision that the mobile home was not a preexisting nonconforming structure “because it was placed on the property after the adoption of the Daphne zoning ordinance” was based “upon the first set of interrogatory answers submitted by [Mousseau] together with the testimony of [Bill Williams,] the across-the-street neighbor, and the date of the final settlement of [James White’s] estate.” Mousseau argues that the circuit court’s decision was against the great weight of the evidence because she, her brother, and her two sisters all testified that the mobile home was situated on the property in 1988. The circuit court was authorized to discount the testimony of Mousseau’s sisters because they were interested relatives and one of them acknowledged an ownership interest in the mobile home. Likewise, Mousseau and her brother David Gautney had a financial interest in the mobile home. More importantly, though, Mousseau’s trial testimony was inconsistent with her answers to the Zoning Board’s interrogatory, and Gaut-ney’s trial testimony contradicted the statements he gave at the Zoning Board hearing. The circuit court could well have concluded that Bill Williams, who testified that in November 1988 Parker Lane was within the city limits and that the mobile home was not on Mousseau’s Parker Lane property at that time, was the only disinterested witness.

The circuit court was also entitled to consider the undisputed documentary evidence — that the mobile home had been appraised on January 28, 1989, for $2,000, and that the appraisal had been done for the purpose of settling the estate of James White, Mousseau’s late ex-husband — in connection with Mousseau’s testimony that she paid the estate $1,000 for a half interest in the mobile home and moved the mobile home to her property shortly thereafter. The circuit court was authorized to conclude that Mousseau would not have paid the estate $1,000 for the mobile home before it had been appraised and, therefore, that she most likely moved the mobile home to her property in February 1989, as she stated in answer to the Zoning Board’s interrogatory. That view of the evidence would have been consistent with Bill Williams’s testimony that the mobile home was not on Mousseau’s property on Thanksgiving 1988. Because the circuit court’s findings were supported by the record, they cannot be plainly and palpably wrong.

The judgment of the Baldwin Circuit Court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Janice Rena PRESCOTT v. John David PRESCOTT.
    2070638.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2008.

      Jeffery D. Hatcher, Geneva, for appellant.
    William R. King, Luverne, for appellee.
   PER CURIAM.

Janice Rena Prescott (“the mother”) appeals from a judgment of the Covington Circuit Court that modified the custody of the parties’ two minor children (“the children”) by transferring it from the mother to John David Prescott (“the father”). We affirm.

The parties divorced in August 2005. The divorce judgment awarded the mother primary physical custody of the children and awarded the father certain visitation rights. On September 20, 2006, the father filed a “petition for ex parte temporary custody.” On September 22, 2006, the trial court entered an ex parte order awarding the father temporary custody of the children. On October 11, 2006, the trial court, pursuant to an agreement of the parties, entered an order continuing the father’s temporary custody of the children and awarding the mother certain visitation rights pending a final hearing on the matter. On January 8, 2008, the father filed an amended petition to modify custody. After conducting a hearing on the father’s amended petition to modify custody, the trial court, on February 27, 2008, entered a judgment that, among other things, awarded the father custody of the children and awarded the mother certain visitation rights. The mother timely appealed.

The mother raises two arguments on appeal. First, the mother argues that the trial court’s judgment modifying custody of the children “erroneously ... utilized] the best interest standard and improperly place[d] the burden on the [mother].” The mother also argues that the trial court erred by failing “to specifically conclude that the [father] had proved the burden imposed by Ex parte McLendon, 455 So.2d 863 (Ala.1984).” The error alleged by the mother did not occur at trial; rather, that error occurred, if at all, in the trial court’s judgment. Therefore, the mother could not have raised this argument in her answer or at trial; however, the mother had the opportunity to bring this issue to the trial court’s attention by filing a postjudgment motion but failed to do so. Because the mother failed to file a postjudgment motion and raises this argument for the first time on appeal, we cannot consider this argument. See K.L.R. v. L.C.R., 854 So.2d 124, 131 (Ala.Civ.App.2003) (refusing to consider the mother’s argument that the trial court erred by failing to apply the proper statutory law in reaching its custody-modification judgment because the mother had failed to raise that argument at trial or in a postjudgment motion); Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

The mother also argues on appeal that the trial court’s judgment modifying custody of the children is unsupported by the evidence. However, the record does not contain the court reporter’s transcript, a statement of the evidence pursuant to Rule 10(d), Ala. R.App. P., or an agreed statement of the case pursuant to Rule 10(e), Ala. R.App. P. “In the absence of a transcript of the evidence or an authorized substitute therefor, it is conclusively presumed that the trial court’s judgment is supported by the evidence.” Waters v. Smith, 586 So.2d 22, 22-23 (Ala.Civ.App.1991) (citing Mitchell v. Mitchell, 506 So.2d 1009 (Ala.Civ.App.1987)). The trial court heard testimony ore tenus and entered a judgment based on that testimony. In the absence of a transcript or an authorized substitute therefore, we are required to affirm the trial court’s judgment based on the rule of law cited above. See Waters, 586 So.2d at 22-23; Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala.Civ.App.1991); Ford v. Lines, 505 So.2d 1229, 1230 (Ala.Civ.App.1986); and Maker v. Maker, 487 So.2d 948, 949 (Ala.Civ.App.1986).

AFFIRMED.

All the judges concur.

      . The trial court's October 11, 2006, order provided that the "final hearing of this matter shall be set upon the petition of either party.” On May 8, 2007, the mother moved the trial court to set a date for the final hearing.

      . Under Ex pane McLendon, a parent seeking to modify custody must demonstrate that the proposed change in custody will materially promote the welfare and best interests of the child. 455 So.2d at 865. Additionally, the parent seeking to modify custody must demonstrate that the good brought about by the proposed change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Id.

      . Rule 10(d), Ala. R.App. P., provides, in pertinent part, that
      “[i]f no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection.
      The statement, either as approved by the court or as issued by the court after its ruling, shall be filed with the clerk of the trial court, who shall include it in the record on appeal.”
      Rule 10(e), Ala. R.App. P., provides that
      ”[i]n lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and how they were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary to present fully the issues raised by the appeal, shall be approved by the trial court and shall then be certified to the appellate court to which the appeal is taken as the record on appeal, and it shall be transmitted thereto by the clerk of the trial court within the time provided by Rule 11.”


author: WELCH, Judge.

text:
    Harold JACKSON v. STATE of Alabama.
    CR-06-0455.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2007.

      James Perry Newton, Butler, for appellant.
    Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   WELCH, Judge.

Harold Jackson appeals from the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. The petition challenged Jackson’s April 13, 2006, convictions for unlawful distribution of a controlled substance and unlawful possession of a controlled substance, and his sentences to 10 years’ imprisonment for the distribution charge and 5 years’ imprisonment for the possession charge. Jackson did not appeal from those convictions.

Jackson’s Rule 32 petition was filed on August 29, 2006. In the petition, Jackson claimed that he had been denied the effective assistance of counsel and that his failure to appeal his convictions within the prescribed time was through no fault of his own. The State filed a motion to dismiss, asserting that Jackson’s allegations were not sufficiently specific. The circuit court denied Jackson’s petition based upon the grounds raised in the State’s motion to dismiss.

Jackson contends that at the conclusion of his trial, he relayed to his counsel his desire to appeal his convictions. Jackson’s counsel later informed him that a notice of appeal had been entered. After he communicated with his counsel regarding several issues to be considered on appeal, Jackson was of the belief that his appeal was pending and that an appellate brief was being prepared. According to Jackson, he later learned that an appeal had not been filed. Jackson, acting pro se, then filed an appeal, which this Court denied as untimely. In its motion to dismiss Jackson’s Rule 32 petition, the State did not specifically address Jackson’s claim that his failure to appeal within the prescribed time was through no fault of his own. Likewise, the circuit court failed to address this claim in its order summarily denying Jackson’s petition. Because this claim is sufficiently pleaded under Rule 32.3 and Rule 32.6(b), Ala. R.Crim. P., we must remand this case for the circuit court to address the merits of the claim.

Jackson’s claim that he is entitled to an out-of-time appeal because, although Jackson had asked his attorney to appeal, his attorney failed to file a timely notice of appeal is not precluded. If the failure to file a timely notice of appeal is through no fault of the appellant’s, then the appellant is entitled to an out-of-time appeal. Avery v. State, 832 So.2d 664, 666 (Ala.Crim.App.2001); Noble v. State, 708 So.2d 217 (Ala.Crim.App.1997). Given that this Court dismissed Jackson’s direct appeal as untimely, remand is necessary for the circuit court to make findings regarding this claim.

Based on the foregoing, we remand this case to the circuit court to address the merits of Jackson’s claim that his failure to appeal his convictions was through no fault of his own. On remand, the circuit court may conduct an evidentiary hearing or take evidence in the form of written affidavits, depositions, or interrogatories, and it shall issue specific written findings of fact in this regard. If the circuit court determines Jackson is entitled to relief on one or more of these claims, it may grant whatever relief it deems necessary. Due return shall be filed with this Court no later than 56 days from the date of this opinion. The return to remand shall include the circuit court’s written findings of fact; a transcript of the evidentiary hearing, if any; and any other evidence received or relied on by the court.

REMANDED WITH INSTRUCTIONS.

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


author: BASCHAB, Presiding Judge. WELCH, Judge,

text:
    Courtney Laverle ROBINSON v. STATE of Alabama.
    CR-07-0277.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Courtney Laverle Robinson, pro se.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Courtney Laverle Robinson, was indicted for second-degree domestic violence and first-degree burglary. On December 7, 2006, he pled guilty to second-degree assault and third-degree burglary. On January 12, 2007, the trial court sentenced him, as a habitual offender, to serve concurrent terms of life in prison. See § 13A-5-9(b)(1), Ala.Code 1975. The appellant did not appeal his convictions. On August 21, 2007, he filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that his trial counsel rendered ineffective assistance because he advised him to reject the State’s offer of a twenty-year sentence and to enter a blind plea. Specifically, he contends that trial counsel advised him that, if he entered a blind plea, “he could do better than a twenty year sentence that he could make a case for fifteen or fourteen years” and that his sentence would not be any worse than twenty years. (Appellant’s brief at p. 11.) In its order denying the petition, the circuit court did not specifically address that claim. Because the appellant’s claim could be meritorious, the circuit court erred in not addressing it.

Accordingly, we remand this case to the circuit court for that court to make specific, written findings of fact concerning the appellant’s claim. On remand, the circuit court may require the State to respond specifically to the appellant’s, contentions and/or may conduct an evidentiary hearing. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and/or a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

McMILLAN and WISE, JJ., concur; SHAW, J., concurs in the result; and WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I respectfully dissent from the majority’s opinion remanding this Rule 32, Ala. R.Crim. P., petition to the circuit court for further proceedings. The majority holds that the circuit court failed to rule on Courtney Laverle Robinson’s claim that his counsel’s material misrepresentation about the sentence he would receive if he entered a blind plea, as opposed to entering a plea pursuant to the State’s offer, rendered his guilty plea involuntary.

The majority, finding the claim sufficiently pleaded, remanded the cause, because, it stated, “the appellant’s claim could be meritorious, [and] the circuit court erred in not addressing it.”

That majority’s decision is apparently based upon caselaw holding that “ ‘a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary.’ Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999). See also Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992).” Gordon v. State, 987 So.2d 1181, 1182 (Ala.Crim.App.2006) (quoting Gilmore v. State, 937 So.2d 547, 550-51 (Ala.Crim.App.2005)). In the above cases, the defendant pleaded guilty because trial counsel incorrectly represented to the defendant that the defendant would receive a certain sentence upon pleading guilty or pleaded guilty because counsel incorrectly informed the defendant of the collateral results of his entering a guilty plea. See e.g., Ex parte Blackmon, 734 So.2d 995 (Ala.1999) (promise of release from custody on the day of plea based on time served); Gordon v. State, supra (promise of placement in the community corrections program); Gilmore v. State, supra (promise of a split sentence or probation); Ford v. State, 831 So.2d 641 (Ala.Crim.App.2001) (promise of split sentence); Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992) (promise of probation). Contrary to the majority’s holding, I do not believe that Robinson’s pleading, if true, was sufficient to entitle him to relief.

Robinson claimed the following in his petition:

“Attorney McCaleb advised Robinson that he could either take the [State’s offer of a] twenty[-year sentence] or plea blind. Attorney McCaleb informed Robinson that if he plead[ed] blind he could make a case for not twenty years but for fifteen or fourteen years because he thought he could ‘do better.’ [See: Motion to Reconsider R.3 lines 2-8 & R.4 lines 2-9]”.

(CR. 21.)(Emphasis added.) Robinson further argues that he “rejected the 20-year plea bargain the District Attorney offered and entered into a blind plea of guilty based solely upon the advise from his Attorney. [See: Exhibit-B].” (CR. 23).

Robinson’s petition cited the following from his motion for sentence reconsideration, which was attached to his petition.

“[Defense counsel:] [A]nd there was an offer of twenty years which [the prosecutor] made and Mr. Robinson rejected. And, of course, that twenty years was with the consent of the victims in the case. But Courtney, he refused it, and, you know, he did that knowingly. But I told him, I said, well, Courtney, we can try it, you can take the twenty or you can go and plead blind. And I told him, I said, you can plead blind and we can make a case for not twenty years, but maybe fifteen or fourteen years, twice what you got last time. So it was really my advice I think that he came in here and pled blind.”

(CR-74-75.) (Emphasis added.)

“[Defense counsel:] But I think that [Robinson’s] prior record was somewhat, when [the court] looked at it, overwhelming to [the court] when [the court] gave him life. And I kind of forgot about, you know, just how bad [Robinson’s prior record] was, but I don’t want [the court] to give him a life sentence or anything close to that based on me telling him let’s just plead blind because we might be able to do better. And actually [I] told him, I said, the Judge knows you rejected a twenty year plea agreement, so I don’t think it will get any worse than that so let’s just go for that. Well, it did get a lot worse than that. And I really feel like that was probably my fault and I don’t want you to punish him for my advice. I think the twenty years was probably fair under the circumstances. And [the prosecutor and victims] were in agreement with that.”

(CR-75-76.) (Emphasis added.)

In its response, the State contradicted Robinson’s allegation of ineffective assistance of counsel by arguing that the transcript from the hearing on the motion for sentence reconsideration reflects that Robinson “knowingly rejected the earlier twenty year offer” and “[n]owhere [in Robinson’s pleadings, exhibits, or motion to reconsider transcript] is it indicated that [Robinson’s] trial counsel promised him that this Court would sentence below the 20 year offer.” (CR. 87-88.)

The circuit court ruled that “[a]U proceedings in the above-styled matter were held in this Court and the undersigned hereby acknowledges that [Robinson’s] received effective assistance of counsel.” (CR. 90.) (Emphasis added.)

I, like the majority, do question the circuit court’s ruling as to Robinson’s claim that his plea was induced by counsel’s misrepresentations. The circuit court, even where the same judge presides over the trial on the merits and over the Rule 32 petition, could not know what discussions took place between counsel and his client. See, e.g., Ex parte Walker, 800 So.2d 135, 138 (Ala.Crim.App.2000) (“[T]he trial court did not have personal knowledge of the performance of Walker’s lawyers on appeal. Walker’s claim alleging ineffective assistance of appellate counsel is based upon conduct of those lawyers that the trial court could not have observed.”). Nevertheless, for the reasons that follow, I agree with the State that Robinson’s pleadings do not suggest that counsel’s comments constituted a misrepresentation that induced Robinson to enter a blind plea.

The pleadings, which assert that counsel made statements such as “we might be able to do better,” “I don’t think it will get any worse,” and “let’s just go for that,” do not suggest that counsel made a misrepresentation to Robinson regarding the length of his sentence. There was no representation that the sentencing court would sentence Robinson to less than 20 years’ imprisonment. It is my opinion that the pleadings reflect that Robinson declined the State’s offer of a 20-year sentence after his counsel presented to Robinson his view of the probabilities associated with that decision. That counsel believed that the probabilities were favorable and that he could — and the record reflects that he did — make a compelling argument for the imposition of a sentence of less than 20 years, does not constitute a material misrepresentation just because the sentencing court was not persuaded by counsel’s argument. See e.g., Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (strategic decisions by counsel are “virtually unchallengeable”).

Robinson was advised of the correct range of punishment, and he knew that declining the State’s offer and entering a blind plea was, to use colloquialism, “going for it.” Counsel’s bearing the blame after Robinson’s expectations were not met, for what counsel now describes as poor advice, does not change the fact that counsel never promised Robinson that he would in fact be sentenced as he hoped.

Thus, Robinson’s pleadings fail to present facts, if true, suggesting that counsel misrepresented the range of punishment. A mere hope, subjective belief or expectation of the defendant and his counsel regarding the length of the sentence is insufficient to warrant withdrawal of a guilty plea unless that belief or expectation is based on a promise by the State. Alderman v. State, 615 So.2d 640 (Ala.Crim.App.1992); State v. Holman, 486 So.2d 500, 503 (Ala.1986); Tiner v. State, 421 So.2d 1369 (Ala.Crim.App.1982).

Thus, I would affirm the order denying Robinson relief on this claim, because I believe that this claim was not sufficiently pleaded to satisfy the requirements in Rule 32.3 and Rule 32.6(b), Ala. R.Crim. P. Therefore, I must respectfully dissent.

      . Because of our disposition of this case, we pretermit discussion of any remaining claims the appellant may raise in his brief to this court.

      . There are several unlabeled attachments to Robinson's petition. We are unsure which was intended as Exhibit B.


author: WELCH; Judge. BASCHAB, Presiding Judge,

text:
    Quishaun Davontay BRAZERY v. STATE of Alabama.
    CR-06-1449.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied May 23, 2008.
    Certiorari Denied Oct. 10, 2008 Alabama Supreme Court 1071231.

      Aimee C. Smith, Montgomery, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WELCH; Judge.

In 2004, Quishaun Davontay Brazery was convicted of two counts of first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975. For each conviction he was sentenced to 20 years’ imprisonment, to be served concurrently. The sentences were split, and he was ordered to serve three years. The trial court suspended the split sentences and placed Brazery on four years’ probation.

In 2007, a delinquency report was filed, along with a motion to revoke Brazery’s probation, claiming that Braz-ery had violated the terms of his probation by committing two new offenses, including possession of a controlled substance and possession of drug paraphernalia, and by failing to maintain suitable employment. Counsel was appointed for Brazery, and a probation revocation hearing was held on April 11, 2007.

The transcript of the probation revocation hearing begins with the following:

“THE COURT: Quishaun Brazery. All right. We are here on a probation revocation.
“PROBATION OFFICER: We are here today on Quishaun Brazery. Charge number one. Do not violate any federal, state or local law. Possession of a controlled substance.
“Charge number two. Violation of condition number one. Do not violate any federal or state or local law. Possession of drug paraphernalia.
“Charge number three. Violation of condition number 6. Failure to work faithfully at suitable employment.
“Brazery was read and explained the orders and conditions of supervised probation on 11-3-04.
“As of the date of this report Brazery has failed to provide proof to this officer that he is employed.
“He was also counseled on 5-23-06 and 3-5-07 to bring the document that he was employed or that he was receiving disability.
“CORPORAL K.C. BENTLEY
“was previously sworn, testified as follows:
“DIRECT EXAMINATION
“BY MR. FOREMAN [Prosecutor]:
“Q. State your name, please.
“A. Corporal K.C. Bentley.”

(Supplemental Record at R. 3-4.) Cpl. Bentley’s testimony followed. She testified that she was the case agent for the new drug charges against Brazery. She testified that two other officers had observed Brazery standing next to a vehicle where he appeared to be engaged in drug activity. The officers approached Brazery, and Brazery ran. The officers saw Brazery throw a scale to the ground. They also saw a plastic bag fall out of his hand. Brazery was apprehended, and the plastic bag was retrieved. The officers believed the plastic bag contained crack cocaine. Cpl. Bentley came into contact with Braz-ery when Brazery was transported to the narcotics office. The plastic bag and its contents were turned over to Bentley for her to perform a field test. The substance inside the plastic bag tested positive for cocaine.

During cross-examination, Cpl. Bentley admitted that she did not have personal knowledge of the circumstances and that her knowledge regarding Brazery’s actions that resulted in the new charges was based on hearsay. The trial court then asked the State if there were any other witnesses. The prosecutor responded that he had no other witnesses. Once it was determined there would be no further testimony, the following occurred:

“[Defense counsel]: Your Honor, we would just object if the court is even— we are going to ask the court first of all if anything, to put him in a delinquent status until the other cases are resolved. And ask the court not to revoke him since they only had hearsay testimony.
“Officer Bentley was not there and did not see what happened, and can only, you know, relate to this court what she had heard from the other officers.
“And, Your Honor—
“THE COURT: Why don’t we have the other officers here?
“[Prosecutor]: This is the only one that was here, Judge.
“[Defense counsel]: And, Your Honor, on the job portion, I understand their concern that he doesn’t have a job but—
“THE COURT: All right. Okay. Thank y’all. I will let you know.”

(Supplemental Record at R. 8.)

After the hearing, the trial court revoked Brazery’s probation. The entry in the case-action summary reads as follows:

“Revocation hearing. [Brazery] appeared before the Court with his attorney. The probation officer testified that [Brazery] had been arrested for a [sic] new offenses of Poss. of a Controlled Substance and Poss. of Drug Paraphernalia and failure to work. Corporal Bentley, Montgomery Police Dept., testified that on March 25, 2007, [Brazery] was arrested when he was found to be in possession of a plastic bag containing crack cocaine and a set of scales. The probation officer testified that [Brazery] had failed to work and had been counseled several times about finding employment. Based on the testimony of Corporal Bentley and probation officer Jones, court finds that [Brazery] is in violation of [h]is probation for being in possession of drugs and scales and failure to work, and hereby revokes [h]is probation and places his 3 yr. sentence into effect. To be given credit for any time served on this offense.”

(Supplemental Clerk’s Record at CR. 4.) This appeal followed.

On appeal, Brazery claims that the trial court erred in revoking his probation because, he says, the evidence presented was insufficient to support revocation in that the only evidence presented was hearsay. This Court has stated:

“It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation. See Clayton v. State, 669 So.2d 220, 222 (Ala.Cr.App.1995); Chasteen v. State, 652 So.2d 319, 320 (Ala.Cr.App.1994); and Mallette v. State, 572 So.2d 1316, 1317 (Ala.Cr.App.1990). ‘The use of hearsay as the sole means of proving a violation of a condition of probation denies a probationer the right to confront and to cross-examine the persons originating information that forms the basis of the revocation.’ Clayton, 669 So.2d at 222.”

Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999).

In this case, the only evidence indicating that Brazery had violated his probation by committing other crimes was hearsay testimony of Cpl. Bentley. Cpl. Bentley had no independent knowledge of the assertions contained in the police reports detailing the circumstances surrounding the two charged offenses. Thus, only hearsay evidence connected Brazery to the illegal drugs. See Beckham v. State, 872 So.2d 208, 211 (Ala.Crim.App.2003) (“While hearsay evidence is admissible in a revocation proceeding, it may not serve as the sole basis of the revocation.”); Ex parte J.J.D., 778 So.2d 240, 242 n. 2 (Ala.2000) (“[T]he only evidence presented by the State in support of the allegation that J.J.D. had received stolen property was hearsay testimony about the contents of the offense report related to that charge.”); see also Richardson v. State, 863 So.2d 122 (Ala.Crim.App.2003).

The State argues that since Cpl. Bentley conducted the field test on the substance found in the plastic bag, some of her testimony was not hearsay. Although that is correct, the nonhearsay portion of her testimony did not in any way connect the tested drugs to Brazery; thus, it did not constitute sufficient evidence to revoke Brazery’s probation based on the new drug charges.

“While it is not necessary that a probationer be convicted of the charged offense before the probation is revoked, it is nevertheless true that the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation.” Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984). ‘“The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.’ ” Mitchell v. State, 462 So.2d at 742 (quoting Hill v. State, 360 So.2d 716, 718 (Ala.Crim.App.1977)).

In addition, the State contends that even if the trial court erred in revoking Brazery’s probation on the ground that he committed new offenses, Brazery’s probation could still be revoked on the probation officer’s testimony that Brazery had failed to maintain suitable employment. We disagree.

The probation officer’s comments were made before the hearing began and were intended merely to inform the circuit court and the defendant of the charges underlying the delinquency report. The comments were comparable to reading an indictment before or during opening statements; however, an indictment is not considered to be evidence against a defendant. See Wiggins v. State, 347 So.2d 543, 545 (Ala.Crim.App.1977) (it is not improper to read an indictment to jury, but the indictment is not evidence against the defendant); see Mitchell, supra (filing charges alone is insufficient to revoke probation).

Presiding Judge Baschab, in her dissent, contends that the circuit court could properly revoke Brazery’s probation on the ground that he had not maintained suitable employment because, she argues, Brazery did not object to the probation officer’s statements; thus, the statements were properly before the court. Presiding Judge Baschab reaches this conclusion by relying on long-standing precedent that the “[fjormal procedures and the application of strict rules of evidence are not required in [a] probation revocation hearing.” Chenault v. State, 777 So.2d 314, 316 (Ala.Crim.App.2000). However, the proposition of law cited in Chenault is not so broad as to admit as evidence comments by a probation officer who is not called as a witness and who is not sworn. Black’s Law Dictionary defines a witness as: “[o]ne who gives testimony under oath or affirmation (1) in person, (2) by oral or written deposition or (3) by affidavit.” Black’s Law Dictionary 1633 (8th ed.2004). Under the facts here, the probation officer was not called, sworn, or questioned. The probation officer was not called as a witness, and the record does not reflect that his comments were made under oath. Nor were they made in response to a question. Brazery had no reason to believe that the circuit court would treat the comments as evidence until he received the order revoking his probation.

Therefore, the probation officer’s comments in this case cannot be considered evidence. It defies logic to conclude that Brazery should have objected to evidence that, in fact, was never presented.

Because the State failed to present any evidence other than hearsay with regard to the charge that Brazery had committed new offenses, and no evidence to reasonably satisfy the circuit court that Brazery had failed to maintain suitable employment, the circuit court erred in revoking Brazery’s probation. The circuit court’s order revoking Brazery’s probation is reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SHAW, J., concurs; WISE, J., concurs in the result; BASCHAB, P.J., dissents, with opinion, joined by McMILLAN, J.

BASCHAB, Presiding Judge,

dissenting.

I concur with the conclusion in the main opinion that the circuit court improperly revoked the appellant’s probation on the ground that he had committed new offenses because the State presented only hearsay evidence that he had committed the new offenses. However, I respectfully disagree with the conclusion that this case must be reversed because there was not any evidence to support the revocation of his probation on the ground that he had not maintained suitable employment.

The main opinion concludes that the probation officer’s statements regarding the allegation that the appellant had not maintained suitable employment did not constitute testimony because the officer “was not called as a witness, and the record does not reflect that his comments were made under oath” and that the circuit court’s reliance on the officer’s statements during the revocation hearing violated the appellant’s right to confront and cross-examine witnesses. 6 So.3d at 564. However,

“ 1 “a probation revocation hearing is not criminal in nature, and therefore neither formal procedures nor formal rules of evidence need be followed by the trial court.” ’ Allen v. State, 644 So.2d 45, 46 (Ala.Crim.App.1994) (quoting Smith v. State, 445 So.2d 573, 574-575 (Ala.Crim. App.1984)); Thompson v. State, 356 So.2d 757 (Ala.Crim.App.1978); Goodrum v. State, 418 So.2d 942 (Ala.Crim.App.1982). Formal procedures and the application of strict rules of evidence are not required in [a] probation revocation hearing. See Allen, 644 So.2d at 46.”

Chenault v. State, 777 So.2d 314, 316 (Ala.Crim.App.2000). The appellant did not object to the probation officer’s statements during the revocation hearing and did not attempt to question the probation officer regarding those statements. Also, he did not present his argument that he was denied the right to confront and cross-examine the probation officer to the circuit court. Because the appellant did not challenge the probation officer’s statements during the revocation hearing, those statements were properly before the circuit court.

“ ‘ “The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or more exclusionary rules of evidence does not destroy its probative effect, if it is admitted without objection.” Smith v. State, 40 Ala.App. 600, 119 So.2d 202, cert. denied, 270 Ala. 741, 119 So.2d 203 (1960).’
“Watson v. State, 398 So.2d 320, 325 (Ala.Cr.App.), writ denied, 398 So.2d 332 (Ala.), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981).”

Johnson v. State, 642 So.2d 528, 530 (Ala.Crim.App.1994).

The main opinion asserts that “Brazery had no reason to believe that the circuit court would treat the comments as evidence until he received the order revoking his probation” and that “[i]t defies logic to conclude that Brazery should have objected to evidence that, in fact, was never presented.” 6 So.3d at 564. However, even after the circuit court entered it written revocation order, Brazery did not file a motion to reconsider challenging the circuit court’s reliance on the probation officer’s statements or the sufficiency of the evidence to support the revocation of his probation on the ground that he had not maintained suitable employment. Rather, he raises these arguments for the first time on appeal.

Additionally, the main opinion states that the probation officer’s statements at the beginning of the revocation hearing “were comparable to reading an indictment before or during opening statements” and notes that an indictment cannot be used as evidence against a defendant. 6 So.3d at 563. However, this comparison ignores the fundamental difference between a trial and a revocation hearing. As a general rule, an indictment is not admissible as substantive evidence of the guilt of the accused. In contrast, a delinquency report can be admissible as substantive evidence during a revocation hearing. The law states only that the report cannot be the sole basis for revoking a defendant’s probation. Further, this is not a case in which the circuit court relied solely on a report or the fact that the probation officer filed a report. Rather, the circuit court relied on the probation officer’s in-court statements. Therefore, the analogy in the main opinion regarding the reading of an indictment is unavailing.

For these reasons, any error in revoking the appellant’s probation on the ground that he had committed new offenses was harmless. See Rule 45, Ala. R.App. P. Accordingly, I respectfully dissent.

McMILLAN, J., concurs.

      . The delinquency report is not included in the record. Even if a sworn delinquency report had been contained in the record, it, like an indictment, is not proof of guilt. See Mitchell v. State, 462 So.2d at 742 ("the filing of charges or an arrest, standing alone, is insufficient ground for probation revocation")

      . Additionally, Brazery had no reason to object to the probation officer’s comments because the comments accurately reflected why the probation officer had filed a delinquency report against Brazery. Because the probation officer was not a witness, Brazery had no opportunity to object or to question the probation officer regarding the basis of the charges.


text:
    Oeatha ARCHIE III v. STATE of Alabama.
    CR-06-2139.
    Court of Criminal Appeals of Alabama.
    May 30, 2008.
    Oeatha Archie III, pro se.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   PER CURIAM.

The petitioner, Oeatha Archie III, appeals the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

In 1996, Archie was convicted of capital murder and was sentenced to life imprisonment without the possibility of parole. We affirmed his conviction and sentence by unpublished memorandum. See Archie v. State (No. CR-99-1085), 821 So.2d 1029 (Ala.Crim.App.2001) (table).

In December 1999, Archie filed his first Rule 32 petition attacking his conviction. That petition was denied by the circuit court. He filed subsequent Rule 32 petitions in May 2000, September 2002, and April 2004. Those petitions were likewise denied. In January 2007, Archie filed his fifth Rule 32 petition. After that petition was denied, Archie appealed to this Court. We dismissed the appeal because the notice of appeal was not timely filed. See Archie v. State (No. 06-1129, April 26, 2007) - So.3d - (Ala.Crim.App.2007) (table).

In July 2007, Archie filed his sixth Rule 32 petition seeking an out-of-time appeal from the denial of his fifth Rule 32 petition. The circuit court summarily denied the petition. This appeal followed.

On appeal Archie argues that his failure to file a timely notice of appeal was due to a clerical error and was not his fault; thus, he argues, he is entitled to an out-of-time appeal from the denial of his fifth Rule 32 petition. Specifically, Archie argues that he “filed” his notice of appeal relating to his fifth Rule 32 petition on March 15, 2007, but that the notice was stamped as filed in the circuit court clerk’s office on March 29, 2007—a date past the 42-day period for filing a timely notice of appeal.

Archie alleged in his Rule 32 petition that he timely placed his notice of appeal in the prison mail system on March 15, 2007, and that the circuit court clerk erroneously stamped his notice of appeal as filed March 29, 2007, rather than giving him the benefit of the “mailbox rule.” See Rule 4(c), Ala.R.App.P. Archie’s allegations were not refuted by the State, and thus must be taken as true. “When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.” Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991).

Therefore, we must remand this case for the circuit court to allow Archie an opportunity to present evidence to support his allegation that the failure to appeal was based on a clerical error and was not his fault. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim.P. After receiving and considering the evidenée presented, the circuit court shall issue specific written findings of fact regarding Archie’s claim and 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 relied on by the court in making its findings.

REMANDED WITH INSTRUCTIONS.

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

WISE, J., dissents.

      . Before we dismissed the appeal we allowed Archie fourteen days to show cause why the appeal should not be dismissed because the notice was untimely filed.

      . Effective June 1, 2005, Rule 32.1(f), Ala. R.Crim.P., was amended to provide that the proper means for seeking an out-of-time appeal from the denial of a Rule 32 petition is to file another Rule 32 petition.

      . Our records indicate that Archie's fifth Rule 32 petition was denied on February 12, 2007, and that he did not file a notice of appeal until March 29, 2007.

      . Rule 4(c), Ala.R.App.P., states:
      "If an inmate confined in an institution and proceeding pro se files a notice of appeal in either a civil or a criminal case, the notice will be considered timely filed if it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for 'legal' mail to be processed by the United States Post Office, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a notarized statement that sets forth the date the filing was deposited in the institution's mail system.”


author: WELCH, Judge. SHAW, Judge,

text:
    C.G.W. v. STATE of Alabama.
    CR-06-2126.
    Court of Criminal Appeals of Alabama.
    June 27, 2008.

      C.G.W., pro se.
    Troy King, atty. gen., and John-Paul M. Chappell, asst. atty. gen., for appellee.
   WELCH, Judge.

This case is before this Court on appeal from the trial court’s denial of C.G.W.’s petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. The petition sought postconviction relief from his August 31, 2005, convictions for first-degree rape, first-degree sodomy, and first-degree sexual abuse and his sentences of consecutive terms of 33 years’ imprisonment for the rape and sodomy convictions, and 10 years’ imprisonment for the sexual-abuse conviction. C.G.W.’s direct appeal, docketed as CR-04-2498, was affirmed by this Court on June 9, 2006. C.G.W. v. State (No. CR-04-2498) 978 So.2d 75 (Ala.Crim.App.2006)(table).

The instant Rule 32 petition was filed on June 5, 2007. In the petition, C.G.W. claimed that he was denied the effective assistance of counsel for the following reasons:

(1) Counsel, Ed Coey, failed to subpoena C.G.W.’s grandson, who, according to C.G.W., was a material witness present at his home during the alleged sexual assaults who, if called to testify at trial, would have testified that C.G.W. was never alone with the victim in a bedroom and that contrary to the victim’s trial testimony, he never walked in the bedroom while C.G.W. was sexually abusing the victim;
(2) Counsel failed to interview C.G.W.’s doctor or obtain medical records to prove that C.G.W. suffered from erectile dysfunction;
(3) Counsel failed to challenge the sufficiency of the evidence at the close of the State’s case-in-chief;
(4) Counsel failed to request the trial court to instruct the jury on the presumption of innocence;
(5) Counsel failed to request a medical examination of the victim; and
(6) Counsel allowed the child victim to testify without being a legal and competent witness.

C.G.W. also filed a discovery motion requesting: (1) a copy of his counsel’s itemized billing statement; (2) a copy of counsel’s pretrial notes of the investigations; (3) the uniform police incident report; and (4) a copy of the child victim’s out-of-court statement.

Following the State’s response, which included as an exhibit an affidavit from trial counsel, Ed Coey, the circuit court issued an order denying C.G.W. relief on the grounds that the judge hearing the Rule 32 petition was the trial judge and had observed that counsel’s performance was effective. C.G.W.’s motion for discovery was also denied.

On appeal, C.G.W. asserts that the trial court erred by not issuing findings of fact as to his claims.

We find no error with the circuit court’s ruling on C.G.W.’s third claim. This claim was a mere accusation and was not sufficiently pleaded. See Rules 32.3 and 36.(b), Ala. R.Crim. P.

However, C.G.W.’s remaining ineffective-assistance-of-counsel claims appear to be facially meritorious.

“Rule 32, Ala.R.Crim.P., requires the circuit court judge to conduct an eviden-tiary hearing on a Rule 32 petition that appears meritorious on its face. However, the Alabama Supreme Court has held that a circuit court judge who presided over a petitioner’s trial and who observed the conduct of the petitioner’s attorneys at trial need not hold a hearing on a petition challenging the effectiveness of those attorneys. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991). The fact that a circuit court judge is not required to conduct an evidentiary hearing on a petitioner’s claims of ineffective assistance of trial counsel if that judge personally observed the conduct of counsel does not, however, relieve that judge of the responsibility of entering a sufficiently specific order addressing each of the petitioner’s claims of ineffective assistance of trial counsel. See Alvis v. State, 762 So.2d 380, 381 (Ala.Crim.App.1999); Benefield v. State, 583 So.2d 1370, 1370 (Ala.Crim.App.1991) (noting in both cases that meritorious allegations ‘warrant either an evidentiary hearing or an adequate explanation for them denial’).”

Rash v. State, 968 So.2d 552, 554 (Ala.Crim.App.2006).

Therefore, we remand this cause to the circuit court for that court to enter a new order addressing the merits of C.G.W.’s allegations of ineffective assistance of counsel.

Furthermore, should the circuit court deem it necessary it may receive additional evidence by any means provided in Rule 32.9(d), Ala. R.Crim. P. The circuit court may deem it necessary to allow discovery. In any event, the circuit court’s return to remand shall include a transcript containing any additional proceedings. Moreover, Rule 32.9(d), Ala. R.Crim. P., requires the circuit court to “make specific findings of fact relating to each material issue of fact presented.”

However, as in Rash,

‘[I]f the court finds that a particular allegation fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.’
“Harper v. State, 676 So.2d 949, 950 (Ala.Crim.App.1995), aff'd, 698 So.2d 796 (Ala.Crim.App.1996) (table). In making these factual determinations, the circuit court may take judicial notice of the record in [C.G.W.’s 2006] trial. If the court’s findings are based on its personal knowledge of [C.G.W.’s] trial, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989). As we have stated, ‘[a] statement of the basis of the [circuit] court’s decision is essential to afford the appellant due process.’ Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App.1994).”

968 So.2d at 555.

The circuit court is further directed to take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH INSTRUCTIONS.

BASCHAB, P.J., and McMILLAN, J., concur.

SHAW, J., dissents, with opinion.

SHAW, Judge,

dissenting.

I do not believe that any of C.G.W.’s allegations of ineffective assistance of trial counsel raised in his Rule 32, Ala.R.Crim. P., petition for postconvietion relief were pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P. I would affirm the circuit court’s judgment; therefore, I respectfully dissent.


author: BASCHAB, Presiding Judge.

text:
    Billy Jack DANNER v. STATE of Alabama.
    CR-07-0485.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.
    Rehearing Denied Oct. 17, 2008.
    James M. Byrd, Mobile, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, Billy Jack Danner, was convicted of vehicular homicide, a violation of § 32-5A-192(a), Ala.Code 1975. The trial court sentenced him to serve a term of five years in prison, but split the sentence and ordered him to serve six months followed by three years on supervised probation. The appellant did not file any post-trial motions. This appeal followed.

The appellant argues that the trial court erroneously denied his motion to dismiss the indictment against him because it did not allege an appropriate mental state. He also argues that the trial court erred when it did not instruct the jury that it had to find beyond a reasonable doubt that he acted with the appropriate mental state. (Issues II and III in the appellant’s brief.) The indictment alleged that the appellant

“did, unlawfully and unintentionally cause the death of HALEY ROSS, a passenger in the car driven by [the appellant] by causing the vehicle operated by the said [appellant] to collide with a vehicle driven by Kim Gill, while the said defendant was engaged in the violation of a State law applying to the operation or use of a vehicle, to-wit: by crossing the center lane of travel and driving on the wrong side of the roadway and striking the vehicle driven by Kim Gill, and such violation was the proximate cause of death of HALEY ROSS, in violation of § 32-5A-192 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C.R. 8.)

“In Ex parte Edwards, 816 So.2d 98 (Ala.2001), the Alabama Supreme Court reversed our judgment and rendered a judgment for Edwards because the indictment was fatally defective with respect to the charge of vehicular homicide. In Edwards, the Court stated that ‘[a]n indictment under § S2-5A-192(b)[, Ala.Code 1975,] should charge an appropriate mental state based on § 13A-2-2(2) to (4).’ Moreover, because the appellant was acquitted on the manslaughter and the criminal-negligence charges, he was effectively acquitted of vehicular homicide, and, therefore, the trial court erred in denying her motion for a judgment of acquittal. See Ex parte Rice, 766 So.2d 143, 147 (Ala.1999).
“In Ex parte Burnett, 807 So.2d 586 (Ala.2001), the Alabama Supreme Court addressed issues identical to those raised in Edwards, but reversed our judgment and remanded the case for further proceedings consistent with that opinion on grounds that the jury in Burnett did not make any findings as to any charged offense other than vehicular homicide. Because the Supreme Court, in Burnett, did not render a judgment in favor of the appellant, as it did in Ex parte Edwards, this Court, on remand from the Alabama Supreme Court, held that the State can reindict the appellant for vehicular homicide using the language set forth in Ex parte Edwards, supra. See Burnett v. State, 807 So.2d 588 (Ala.Crim.App.2001).
“As in Ex parte Edwards and Ex parte Burnett, the indictment in the instant ease did not charge a mental state, and is, therefore, fatally defective with respect to the vehicular-homicide charge; hence, the indictment is void. See Rule 13.2(a), Ala. R.Crim. P.”

Chatman v. State, 813 So.2d 956, 957-58 (Ala.Crim.App.2001).

The indictment against the appellant did not allege any of the mental states set forth in § 13A-2-2(2)-(4), Ala.Code 1975. Therefore, the indictment was void. See Ex parte Edwards, supra; Ex parte Burnett, supra; Ex parte Chatman, supra. Nevertheless, we have recognized that a trial court may amend an indictment through its jury instructions to include the appropriate mental state. See Sullens v. State, 878 So.2d 1216 (Ala.Crim.App.2003). Therefore, we must examine the trial court’s jury instructions regarding the offense of vehicular homicide.

In this case, the trial court instructed the jury as follows:

“A person commits the crime of vehicular homicide if he unlawfully and unintentionally causes the death of another person while engaged in the violation of any state law applying to the operation or use of a vehicle, if the violation of the state law is the approximate cause of the death of that person.
“To convict, the State of Alabama must prove beyond a reasonable doubt each of the following elements of the offense of vehicular homicide: That the victim Haley Ross is dead, that the defendant Billy Jack Danner unlawfully and unintentionally caused the death of Haley Ross by the use of a motor vehicle, that the defendant Billy Jack Dan-ner was engaged in a violation of state law Alabama law applying to the operation of his motor vehicle, that the act which was the proximate — that that act, the violation of state law, was the proximate cause of the death of Haley Ross.
“Now, the proximate cause of a death of a person is that cause which in the ... probable sequence of events and without the intervention of any new or independent cause, produces the injury and without which the injury would not have occurred.
“A person acts knowingly with respect to conduct or to a circumstance when he is aware that his conduct is of that nature or that the circumstance exists.
“A person acts recklessly with respect to conduct or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
“A person acts with criminal negligence with respect to a result or to a circumstance when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
“If you find from the evidence that the State of Alabama has proved beyond a reasonable doubt each of the elements of the offense of vehicular homicide as charged then you shall find the defendant guilty of the offense of vehicular homicide. If you find that the State of Alabama has failed to prove beyond a reasonable doubt, any one or more elements of the offense of vehicular homicide then you cannot find the defendant guilty of the offense of vehicular homicide. It would be your duty [to] find the defendant not guilty.”

(R. 227-29.)

Although the trial court instructed the jury on the various mental states set forth in § 13A — 2—2(2)—(4), Ala.Code 1975, it did not explain how those mental states related to the offense of vehicular homicide. Also, the trial court did not instruct the jury that the mental states set forth in § 13A-2-2(2)-(4), Ala.Code 1975, constituted elements of the offense of vehicular homicide or that it must find that the State had proved the existence of one of those mental states beyond a reasonable doubt. Therefore, the trial court’s instructions regarding the offense of vehicular homicide were not adequate to amend the indictment to charge an appropriate mental state.

For the above-stated reasons, the indictment against the appellant was void, and the trial court did not amend the indictment through its jury instructions. Therefore, we must reverse the appellant’s conviction and sentence for vehicular homicide. However, because the jury did not make any findings as to any offense other than vehicular homicide, the State may reindict the appellant for vehicular homicide using the language set forth in Ex parte Edwards, 816 So.2d 98 (Ala.2001). Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, SHAW, WISE, and WELCH, JJ, concur.