author: WELCH, Judge. SHAW, Judge,

text:
    G.E.G. v. STATE of Alabama.
    CR-07-0036.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.
    Rehearing Applications Denied March 13, 2009.
    Certiorari Denied (as to G.E.G.) Aug. 14, 2009 Alabama Supreme Court 1080770.

      Thomas M. Goggans, Montgomery; and Trina S. Williams, Montgomery, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   WELCH, Judge.

G.E.G. pleaded guilty pursuant to a plea agreement to sexual torture of his seven-week-old daughter, a violation of § 13A-6-65.1, Ala.Code 1975; possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975; and possession of drug paraphernalia, a violation of § 13A-12-260(c), Ala.Code 1975. After a sentencing hearing, the trial court sentenced G.E.G. to life imprisonment for the sexual-torture conviction and to one year in jail for each of the other charges. The sentences are to run concurrently.

At the plea hearing, the prosecutor told the trial court that the State expected the evidence to show that on September 1, 2004, G.E.G. was at home with his seven-week-old daughter when he called the infant’s mother at work to tell her that he was about to take the infant to the hospital because she was bleeding. At that time, G.E.G. apologized for hurting the infant and said that he wanted to die.

When a nurse at the hospital initially examined the infant, she discovered that the infant was split open from the top of her vagina to the bottom of her anus. G.E.G. attempted to explain the injury by saying that he had had five beers and smoked marijuana, then, when he was rubbing baby oil on the infant, his fingers must have slipped and entered her vagina.

The physician who treated the infant determined that the injury could not have been caused by a finger. Instead, the physician said, the injury was caused by either an inanimate object or a sexual organ. The prosecutor also said that the medical records in the case would show that the infant would continue to have problems with her bowels, bladder, and her sexual organs.

G.E.G. contends that his guilty pleas were due to be set aside because, he says, the pleas were involuntary and invalid under Rule 14.4, Ala. R.Crim. P. A defendant who enters a guilty plea does not have a right to withdraw that plea. Mashburn v. State, 7 So.3d 453, 463 (Ala.Crim.App.2007). Rather, “[t]he court shall allow withdrawal of a plea of guilty when necessary to correct a manifest injustice.” Rule 14.4(e), Ala. R.Crim. P. Also, “ ‘[wjhether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing of abuse of that discretion.’ Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994).” Mashburn, 7 So.3d at 463.

I.

In its brief on appeal, the State contends that the issue of whether G.E.G.’s pleas were voluntary was not preserved for appellate review because, it says, it was never presented to the trial court. In his statement of the issue, G.E.G. contends that his pleas were involuntary. In the argument portion of his brief, however, he asserts that the trial court failed to address him personally in open court to determine whether G.E.G. understood the nature of the charges against him and whether he had a full understanding of the consequences of entering a plea of guilty. Those are the same reasons he gave for withdrawing his pleas in his motion to withdraw his guilty pleas. This court understands G.E.G.’s statement of the issue regarding the “voluntariness” of the plea to be a shorthand means of saying the requirements of Rule 14.4 were not complied with in this case, and we will address the issue as presented in the body of G.E.G.’s argument.

Rule 14.4, Ala. R.Crim. P., provides in pertinent part as follows:

“(a) Colloquy With Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(i) The nature of the charge and the material elements of the offense to which the plea is offered;
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(in) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;
“(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses;
“(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of the defendant’s guilt; and
“(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved; and “(2) Determining that the plea is voluntary and not the result of force, threats, or coercion, nor of any promise apart from the plea agreement that has been disclosed to the court as provided in Rule 14.3(b); and
“(3) Giving the defendant an opportunity to state any objections he or she may have to defense counsel or to the manner in which defense counsel has conducted or is conducting the defense.
“(b) Factual Basis for Plea. Notwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without being satisfied that there is a factual basis for the plea.”

The record does not support G.E.G.’s contention that the trial court did not properly determine if he understood the nature of the charges against him and whether he understood the rights he was giving up by entering guilty pleas to those charges.

At the outset of the plea hearing, the trial court discussed with counsel for both parties the three specific counts — sexual torture, possession of marijuana in the second degree, and possession of drug paraphernalia — to which G.E.G. would plead guilty out of the initial ten counts for which he was indicted, then determined the possible punishments for each of the counts to which G.E.G. would enter his pleas. The court then had the following colloquy with G.E.G.:

“THE COURT: Two of these [counts] are punishable by a term of imprisonment not to exceed 12 months in the county jail. One is not less than ten years, no more than life in the penitentiary. Do you understand that?
“([G.E.G.] confers with counsel).
“THE COURT: Do you understand you have the right to plead not guilty and have a jury trial?
“[G.E.G.]: Yes, sir.
“THE COURT: A jury trial is where 12 people are selected to hear the evidence and determine your guilt. Do you understand that? You have to speak up.
“[G.E.G.]: I don’t want a jury trial.
“THE COURT: I have to go through these rights with you before I ask you at the end if you want to plead guilty. Okay? So these are rights if you wanted to have a jury trial.
“A jury trial would be where 12 people are selected to hear the evidence and determine your guilt if you had one. Do you understand that?
“[G.E.G.]: Yes, sir.
“THE COURT: You have the right to see, hear, confront, and cross-examine each witness at that trial. Do you understand that?
“[G.E.G.]: Yes, sir.
“THE COURT: And do you understand that you have the right to testify yourself if you wanted to, but you wouldn’t have to, and nobody could say anything about you not testifying?
“[G.E.G.]: Yes, sir.
“THE COURT: And you could subpoena witnesses to testify for you.
“[G.E.G.]: Yes, sir.
“THE COURT: By pleading guilty, you are waiving all these rights. Do you understand all those rights?
“[G.E.G.]: Yes, sir.
“THE COURT: And you want to waive your right to a jury trial and plead guilty; is that right?
“[G.E.G.]: Yes, sir.
“THE COURT: Is anyone forcing you to plead guilty?
“[G.E.G.]: No, sir.
“THE COURT: Are you doing this voluntarily?
“[G.E.G.]: Yes, sir.
“THE COURT: And how do you plead?
“[G.E.G.]: Guilty.”

(R. 3-5.) The prosecutor then outlined for the trial court what she expected the evidence to show, after which the trial court accepted G.E.G.’s pleas and adjudicated him guilty on each of the three counts.

The record demonstrates that the trial court followed the requirements of Rule 14.4(a), Ala. R.Crim. P., in determining whether G.E.G. was entering his pleas of guilty with a complete understanding of the charges to which he was pleading and the consequences of his pleas, including not only giving up his right to a jury trial and the rights attendant to a trial, but also as to the range of possible punishments that could be imposed. G.E.G. told the court he understood all aspects of his guilty plea, and the record shows that he even conferred with his counsel when the range of punishments was conveyed to him by the trial court.

Based upon the record before us, we find that there is no merit to G.E.G.’s contention that his guilty plea was not entered into voluntarily or to his contention that the trial court failed to comply with the requirements of Rule 14.4(a).

II.

G.E.G. also contends that the trial court failed to establish whether a factual basis existed for the offenses to which he was pleading guilty, i.e., sexual torture, possession of marijuana in the second degree and possession of drug paraphernalia. This issue was preserved in G.E.G.’s motion to withdraw his guilty plea. Specifically, G.E.G. argues in his brief that the prosecutor’s rendition of the facts did not mention intent, and, he says, the record fails to indicate whether G.E.G. acquiesced to the State’s version of the facts. He also contends that there was no proof offered that would support a conviction on the two drug-related charges.

“Rule 14.4(b), Ala. R.Crim. P., provides that ‘[njotwithstanding the acceptance of a plea of guilty, the court shall not enter a judgment upon such plea without being satisfied that there is a factual basis for the plea.’ ‘The purpose of requiring the trial judge to determine that there is a factual basis for the plea “is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.’ ” Alderman v. State, 615 So.2d 640, 647 (Ala.Crim.App.1992), quoting United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988), remand order withdrawn and plea vacated on rehearing, 866 F.2d 1301 (10th Cir.1989) (en banc). “ ‘The only factual basis required for a guilty plea is that which will satisfy the court that the appellant knows what he is pleading guilty to.” ’ Alderman, 615 So.2d at 647, quoting Garner v. State, 455 So.2d 939, 940 (Ala.Crim.App.1984). “‘The factual basis [can be] established, in part, by the appellant’s admission that he knew to what offense he was pleading guilty.” ’ Speigner v. State, 663 So.2d 1024, 1027 (Ala.Crim.App.1994), quoting Jones v. State, 492 So.2d 642, 645 n. 3 (Ala.Crim.App.1986). Likewise, ‘the reading of the indictment [is] sufficient to establish a factual basis for a guilty plea in certain cases, [and] in those cases it is not required that the indictment be read into the record during the guilty plea hearing.’ Alvis v. State, 740 So.2d 459, 461 (Ala.Crim.App.1998).”

Scott v. State, 917 So.2d 159, 165 (Ala.Crim.App.2005); see also, Sellers v. State, 935 So.2d 1207, 1214-15 (Ala.Crim.App.2005). Furthermore, in cases involving guilty pleas, the State is not required to prove each and every element of the offenses charged. Russell v. State, 428 So.2d 131, 134 (Ala.1982).

In addition to charging that G.E.G. committed the offense of sexual torture, the indictment returned in this case charged that G.E.G. committed the offense of possession of drug paraphernalia because he possessed a pipe used to smoke marijuana. The indictment also charged G.E.G. with possession of marijuana. In the prosecutor’s statement of the facts to the trial court, she related that G.E.G. told the healthcare workers who examined the infant that he had been smoking marijuana on the day the infant was injured.

G.E.G. argues that the trial court did not establish a factual basis for the charges before accepting the guilty pleas from him. We recognize that

“ ‘[a] plea of guilty is an admission of whatever is sufficiently charged in the indictment. A voluntary guilty plea concludes the issue of guilt, dispenses with need for judicial fact finding, is conclusive as to the defendant’s guilt, and is an admission of all facts sufficiently charged in the indictment.’
“Morrow v. State, 426 So.2d 481, 484 (Ala.Crim.App.1982).”

Whitman v. State, 903 So.2d 152, 155 (Ala.Crim.App.2004). In Whitman, this court held that, “[b]y pleading guilty, Whitman admitted to all elements of the crime of trafficking in cocaine and relieved the State of its burden of presenting any evidence of the crime.” Id. In that case we also noted that a challenge to the factual basis for a guilty plea is not jurisdictional and does not go to the voluntariness of the plea. Id.

However, in this case, the record shows that the only “evidence” tending to indicate that G.E.G. had possessed marijuana at all came in the form of a comment he allegedly made to a nurse who examined the infant at a time when G.E.G. was trying to explain how the infant was injured so severely. In other words, the comment was made while G.E.G. was attempting to ameliorate his culpability for the injuries the infant suffered. There is no independent evidence to corroborate his “excuse.” In Boyington v. State, 748 So.2d 897 (Ala.Crim.App.1999), this Court reversed the defendant’s conviction for possession of marijuana in the second degree and rendered a judgment in his favor because there was simply no actual marijuana to be found.

This court described the facts in that case and explained the holding as follows:

“Boyington was seen smoking something. When the officers arrived they smelled marijuana in the air, on his person, and on a piece of plastic discovered on the ground. No marijuana or drug paraphernalia was found at the scene or on the person of either Boyington or Raines.
“ ‘A person commits the crime of unlawful possession of marihuana in the second degree if, except as otherwise authorized, he possesses marihuana for his personal use only.’ § 13A-12-214(a), Ala.Code 1975. In order to establish the element of possession, ‘[t]he State must show ... (1) actual or potential control, (2) intention to exercise dominion, and (3) external manifestation of intent.’ Fleming v. State, 470 So.2d 1343, 1347 (Ala.Crim.App.1985). Unlawful possession of a controlled substance is a Class A misdemeanor. § 13A-12-214(b), Ala. Code 1975.
“Boyington’s conviction was based on his ‘actual control’ over marijuana. The prosecution attempted to prove Boying-ton’s actual control over the marijuana by the officer’s testimony that they saw Boyington smoking something they believed to be marijuana. However, Boy-ington was not in possession or constructive possession of marijuana when he was arrested at the scene of the alleged crime. Thus, the real question in this ease is whether the officer’s testimony — that they believed Boyington was in possession of marijuana- — -can alone be sufficient to uphold a conviction for possession of a controlled substance.
“Boyington argues in his brief to this Court:
“ ‘Officer Burks testified that the co-defendant threw a green, leafy substance into the air. Nothing was recovered. Prior cases dealing with throwing contraband out of a vehicle have supported a conviction for possession. However, in these cases the contraband was recovered. Hamilton v. State, 496 So.2d 100 (Ala.Crim.App.1986), and White v. State, 479 So.2d 1368 (Ala.Crim.App.1985).
“ ‘Although law enforcement officers’ training and experience in identifying the smell of marijuana, recognizing the way it is smoked, and recognizing the way it is packaged, have supported a finding of probable cause for a search or arrest, no cases have allowed this knowledge to support a conviction where no contraband was found. See Jones v. State, 432 So.2d 19 (Ala.Crim.App.1983), and Smith v. State, 606 So.2d 174 (Ala.Crim.App.1992), discussing probable cause based upon officers’ training and experience in identifying marijuana.’
“(Appellant’s brief at page 8. [Footnote omitted.]) Boyington is correct. In each case reported by this court concerning a situation were illegal drugs were either thrown from a window or flushed down a toilet, the contraband or some residue from the contraband was recovered. See, Coslett v. State, 641 So.2d 302 (Ala.Crim.App.1993) (conviction upheld based on evidence that a medicine bottle containing cocaine residue, a plastic sandwich bag containing cocaine residue, and another plastic bag containing marijuana was recovered after being thrown from window); Carlisle v. State, 533 So.2d 645 (Ala.Crim.App.1987)(the defendant was seen throwing a bag out of the car window, the bag contained marijuana and was found in close proximity to the car); Martin v. State, 695 So.2d 141 (Ala.Crim.App.1996) (cocaine residue found on pipe served as the basis for the conviction; conviction was reversed on basis of illegality of search); Dooley v. State, 575 So.2d 1191 (Ala.Crim.App.1990) (detective heard toilet flushing and water running in the bathroom. The ‘ “J tubing” from underneath the sink was removed and the water that was in the “trap” was collected in a mason jar; it was later determined that this water contained 9.6 milligrams of cocaine per milliliter of water’). We can find no case in Alabama upholding a conviction for possession of a controlled substance where the controlled substance was not confiscated from the defendant and identified or where the defendant was not in constructive possession of the controlled substance. Absent that factual scenario, the element of possession could not be established.”

Boyington v. State, 748 So.2d 897, 901-02 (Ala.Crim.App.1999).

Here, G.E.G. was never seen with marijuana. The record before us is silent as to the existence of drug paraphernalia, i.e., a drug pipe G.E.G. allegedly used to smoke marijuana. The indictment appears to be based strictly on G.E.G.’s remark to the nurse who examined the infant that he had been smoking marijuana.

G.E.G.’s guilty plea may have relieved the State of its burden to present evidence; nonetheless, the underlying factual basis relied upon for bringing the indictment in the first place was insufficient to support a conviction of marijuana possession or possession of drug paraphernalia. The mere “confession” or statement of a defendant to a given offense, without any corroborating evidence, is not sufficient to sustain a conviction. See, e.g., Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954) (the general rule is that an accused may not be convicted on his own uncorroborated confession); State v. Chatelain, 220 Or.App. 487, 188 P.3d 325 (2008) (defendant’s confession is not legally sufficient to support a conviction unless there is adequate corroboration); and People v. O’Neil, 18 Ill.2d 461, 165 N.E.2d 319 (1960) (voluntary confession of an accused is insufficient, without corroborating evidence, to authorize a conviction).

For the forgoing reasons, G.E.G.’s conviction and sentence for the offense of sexual torture are affirmed. However, because there is no independent factual basis for G.E.G.’s guilty pleas entered as to the drug charges, the trial court improperly accepted the pleas as to those two charges. Therefore, G.E.G.’s convictions on the charges of possession of marijuana in the second degree and possession of drug paraphernalia are due to be reversed, and this cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McMILLAN and WISE, JJ., concur. SHAW, J., concurs in the result, with opinion, joined by BASCHAB, P.J.

SHAW, Judge,

concurring in the result.

I agree that G.E.G.’s conviction and sentence for the offense of sexual torture are due to be affirmed. I also agree, based on the state of the record in this case, that the convictions on the drug-related charges are due to be reversed based on the lack of an adequate factual basis. I note, however, that I do not agree with all the discussion and rationale set out in part II of the opinion.

BASCHAB, P.J., concurs.

      1. A "minor misdemeanor” is defined as "a misdemeanor or municipal ordinance violation for which the defendant will not be punished by a sentence of imprisonment.” Rule 1.4(r), Ala. R.Crim. P.

      . G.E.G. was indicted on two counts of first-degree sexual abuse; two counts of first-degree rape; two counts of first-degree sodomy; two counts of sexual torture; one count of possession of drug paraphernalia; and one count of second-degree possession of marijuana. (C. 16-26.)


source: Caselaw Access Project

author: BOLIN, Justice.

license: Public Domain

text:
    Ex parte State of Alabama. (In re G.E.G. v. STATE of Alabama).
    1080779.
    Supreme Court of Alabama.
    May 7, 2010.

      Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for petitioner.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   BOLIN, Justice.

The State of Alabama petitioned this Court for a writ of certiorari to review whether the Court of Criminal Appeals erred in reversing the trial court’s denial of G.E.G.’s motion to withdraw his guilty pleas. For the reasons discussed below, we reverse.

Facts and Procedural History

On April 6, 2007, G.E.G. was indicted for two counts of first-degree sexual abuse; two counts of first-degree rape; two counts of first-degree sodomy; two counts of sexual torture; one count of possession of drug paraphernalia; and one count of second-degree possession of marijuana. With regard to the two drug-related charges, the indictment provided as follows:

“G.E.G. ... did unlawfully possess with intent to use, or did use, drug paraphernalia, to-wit: a pipe, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance, in violation of section 18A-12-260(c) of the Code of Alabama.
“G.E.G. ... did unlawfully possess marijuana for personal use, in violation of section 13A-12-214 of the Code of Alabama.”

Pursuant to a plea agreement, G.E.G. pleaded guilty to the one count of sexual torture of his seven-week-old daughter, see § 13A-6-665.1, Ala.Code 1975; possession of marijuana in the second degree, see § 13A-12-214, Ala.Code 1975; and possession of drug paraphernalia, see § 13A-12-260(c), Ala.Code 1975. After a sentencing hearing, the trial court sentenced G.E.G. to life imprisonment for the sexual-torture conviction and to 12 months in jail for each of the drug-related charges. The sentences were to run concurrently.

At the plea hearing on June 18, 2007, the following exchange occurred:

“THE COURT: [G.E.G.], you have multiple counts here. I understand he is going to plead guilty to which counts, please?
“MS. JAMES [prosecutor]: He will be pleading guilty to Count 6, Count 9, and Count 10, and the rest will be nol-prossed as alternate counts.
“THE COURT: Then he will be pleading guilty to sodomy in the first degree. That’s a Class A felony. Well, I am looking at the Case Action Summary. It could be an error. Let me look at the indictment as well.
“MS. JAMES: I am sorry, Judge. That will actually be Counts 8, 9, and 10, and Counts 1 through 7 will be nol-prossed as alternate counts. So he will be pleading guilty to the sexual torture, possession of marijuana second, and possession of drug paraphernalia.
“THE COURT: That does appear correct on the Case Action Summary. 9 is drug paraphernalia, 10 is possession of marijuana in the second degree, both of which are misdemeanors punishable by a term of imprisonment not to exceed 12 months. What is the classification of Count 9, Ms. James? Is that a felony or misdemeanor?
“MS. JAMES: That’s a misdemeanor, possession of marijuana.
“THE COURT: I am sorry. Count 7 [sic], sexual torture, what classification?
“MS. JAMES: That’s a Class A felony.
“THE COURT: Punishable by a term of imprisonment of not less than 10 years, no more than life. So two of them are Class A misdemeanors and the sexual torture you are saying is a Class A felony?
“MS. JAMES: Yes, sir.
“THE COURT: So you looked at that, Ms. Williams [defense counsel]. Is that correct?
“MS. WILLIAMS: Yes, sir.
“THE COURT: Two of these are punishable by a term of imprisonment not to exceed 12 months in the county jail. One is not less than 10 years, no more than life in the penitentiary. Do you understand that?
“(Defendant confers with counsel.)
“THE COURT: Do you understand you have the right to plead not guilty and have a jury trial?
“THE DEFENDANT: Yes, sir.
“THE COURT: A jury trial is where twelve people are selected to hear the evidence and determine your guilt. Do you understand that? You have to speak up.
“THE DEFENDANT: I don’t want a jury trial.
“THE COURT: I have to go through these rights with you before I ask you at the end if you want to plead guilty. Okay? So these are rights if you wanted to have a jury trial. A jury trial would be where twelve people are selected to hear the evidence and determine your guilt if you had one. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: You have the right to see, hear, confront, and cross-examine each witness at that trial. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: And do you understand that you have the right to testify yourself if you wanted to, but you wouldn’t have to, and nobody could say anything about you not testifying?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you could subpoena witnesses to testify for you.
“THE DEFENDANT: Yes, sir.
“THE COURT: By pleading guilty, you are waiving all these rights. Do you understand all those rights?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you want to waive your right to a jury trial and plead guilty; is that right?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is anyone forcing you to plead guilty?
“THE DEFENDANT: No, sir.
“THE COURT: Has anybody promised you anything to get you to plead guilty?
“THE DEFENDANT: No, sir.
“THE COURT: Are you doing this voluntarily?
“THE DEFENDANT: Yes, sir.
“THE COURT: And how do you plead?
“THE DEFENDANT: Guilty.
“THE COURT: The State’s evidence is?
“MS. JAMES: That the victim in the case is seven weeks old. [G.E.G.] is the victim’s father. On or about September 1st, 2004 [G.E.G.] called the victim’s mother at work, her first day back at work after having the victim in the case, and in that call [G.E.G.] told the victim’s mother that the victim was bleeding and he was about to take her to the hospital. He also told the victim’s mother at that time that he apologized for hurting the victim, that he wanted to die. Once he got the victim to the hospital, a nurse at the hospital saw that the victim was split from the top of her vagina to the bottom of her anus.
“[G.E.G.] at that time said that he had drank five beers and smoked some marijuana, rubbed baby oil over the victim, and at that time he thinks his fingers must have slipped and entered her vagina. The defendant also wrote a statement saying he put baby oil all over my baby and sexually abused her. The doctor in the case, Dr. Saltzer, after examining the baby, said the damage could not have, been done by a finger, but had to have been done by an inanimate object or a sexual organ. And also the medicals in this case would show the victim was split from the top of her vagina to the bottom of her rectum, that she will also have future problems with her bowels, with her female organs, and also with controlling her bladder. And all of this happened in Montgomery County.
“THE COURT: Accept your plea, adjudicate you guilty.”

On July 24, 2007, the trial court sentenced G.E.G. On August 22, 2007, G.E.G. filed a motion to withdraw his guilty pleas to the three charges. G.E.G. argued, among other things, that the record failed to establish a factual basis for any plea entered as required by Rule 14.4(b), Ala. R.Crim. P. On August 27, 2007, the trial court denied G.E.G.’s motion to withdraw his guilty pleas. On September 19, 2007, G.E.G. appealed to the Court of Criminal Appeals.

The Court of Criminal Appeals affirmed G.E.G.’s conviction for the offense of sexual torture but reversed the two guilty-plea convictions on the drug-related charges because it concluded that there was no independent factual basis to support G.E.G.’s admission that he smoked marijuana before he sexually tortured his child. G.E.G. v. State, 54 So.3d 941 (Ala.Crim.App.2008). The Court of Criminal Appeals, citing Boyington v. State, 748 So.2d 897 (Ala.Crim.App.1999), stated that G.E.G. was never seen with marijuana, that the record was silent as to the existence of drug paraphernalia, and that the indictment appeared to be based strictly on G.E.G.’s remark to the nurse who examined the infant that he had been smoking marijuana. The Court of Criminal Appeals reasoned that G.E.G.’s guilty plea may have relieved the State of its burden to present evidence; however, it reasoned, the underlying factual basis relied upon for bringing the indictment was insufficient to support a conviction because a mere “confession,” without any corroborating evidence, is not sufficient to sustain a conviction.

Both the State and G.E.G. sought certio-rari review. We denied G.E.G.’s petition and granted the State’s petition.

Discussion

With regard to the requirement that a defendant’s confession be corroborated to sustain a conviction, it has long been the rule in Alabama that the State must offer independent proof of the corpus delicti of the charged offense to authorize the admission of the defendant’s confession or inculpatory statement. Robinson v. State, 560 So.2d 1130, 1135-36 (Ala.Crim.App.1989). ‘While a confession is inadmissible as prima facie proof of the corpus delicti, it can be used along with other evidence to satisfy the jury of the existence of the corpus delicti.” Bracewell v. State, 506 So.2d 354, 360 (Ala.Crim.App.1986). The purpose of requiring that a defendant’s confession be corroborated is to alleviate the concern that the confession could be false and the conviction thereby lack fundamental fairness.

“The purpose of requiring proof of the corpus delicti, as a condition precedent to the admission of a confession, is to insure its trustworthiness. For this reason, there is some judicial language to the effect that corroborative evidence independent of the confession need not be sufficient to establish corpus delicti but must be sufficient independent evidence which would tend to establish the trustworthiness of the confession.”

Charles W. Gamble & Robert J. Goodwin, McElroy’s Alabama Evidence § 200.13 at 1262 (6th ed.2009)(footnotes omitted).

‘“Evidence of facts and circumstances, attending the particular offense, and usually attending the commission of similar offenses — or of facts to the discovery of which the confession has led, and which would not probably have existed if the offense had not been committed— would be admissible to corroborate the confession. The weight which would be accorded them, when connected with the confession, the jury must determine, under proper instructions from the court.’ ”

Bush v. State, 695 So.2d 70, 118 (Ala.Crim.App.1995) (quoting Matthews v. State, 55 Ala. 187, 194 (1876)); see also Bracewell, supra. “Proof of the corpus delicti does not necessarily include evidence connecting [the] defendant with the crime. The term, meaning body of the offense, connotes the actual commission of the crime by someone.” Arnold v. State, 57 Ala.App. 172, 173, 326 So.2d 700, 701 (1976).

In reversing G.E.G.’s convictions on the drug-related charges, the Court of Criminal Appeals relied, in part, on Boyington v. State, supra, to support its determination that G.E.G.’s admission that he smoked marijuana on the day he injured his child was insufficient alone to provide a factual basis for G.E.G.’s guilty plea. In Boyington, the defendant was convicted following a trial at which the evidence to support his conviction was testimony from a police officer who had seen the defendant and a companion smoking what appeared to be a marijuana cigarette. At trial, the arresting officer stated that there was a very strong smell of burning marijuana in the air when he approached the defendant and his companion. When the officer identified himself as a police officer, the defendant rubbed his fingers together, causing the cigarette to disintegrate. The officer testified that the defendant’s fingers smelled like marijuana and that he saw the companion take a green leafy substance from his pocket and throw it in the air. The Court of Criminal Appeals reversed the defendant’s conviction, stating:

“We can find no case in Alabama upholding a conviction for possession of a controlled substance where the controlled substance was not confiscated from the defendant and identified or where the defendant was not in constructive possession of the controlled substance. Absent that factual scenario, the element of possession could, not be established.
“In the present case, considering that the officers did not see Boyington in possession of marijuana, that Boyington did not have in his possession or was not in constructive possession of marijuana when he was apprehended, that it is not a criminal offense to smell like marijuana, and that there was a possibility that the odor of marijuana was the result of other bar patrons’ smoking marijuana in the area before the officers arrived, the evidence presented at trial did not establish that Boyington was or had been in possession of marijuana.”

748 So.2d at 902-03.

The Court of Criminal Appeals here also relied upon the following cases for the proposition that a defendant’s confession to or statement regarding a given offense, without any corroborating evidence, is insufficient to support a conviction: Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); State v. Chatelain, 220 Or.App. 487, 188 P.3d 325 (2008); and People v. O’Neil, 18 Ill.2d 461, 165 N.E.2d 319 (1960). Like Boyington, Smith, Chatelain, and O’Neil involved trials, and not guilty-plea proceedings.

It is important to recognize the difference between a guilty-plea proceeding and a trial. “ ‘ “A voluntary guilty plea concludes the issue of guilt, dispenses with the need for judicial fact finding, is conclusive as to the defendant’s guilt, and is an admission of all facts sufficiently charged in the indictment.” ’ ” Scott v. State, 917 So.2d 159, 166 (Ala.Crim.App.2005) (quoting Whitman v. State, 903 So.2d 152, 155 (Ala.Crim.App.2004), quoting in turn Morrow v. State, 426 So.2d 481, 484 (Ala.Crim.App.1982)). “A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). “By pleading guilty, a defendant waives three constitutional rights: the right against self-incrimination, the right to trial by jury, and the right to confront his accusers.” Heptinstall v. State, 624 So.2d 1111, 1112 (Ala.Crim.App.1993) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Because these rights are waived upon the entry of a guilty plea, the colloquy at the guilty-plea hearing centers on whether the defendant’s plea is being made voluntarily and knowingly.

“A defendant who enters [a guilty plea] simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”

McCarthy v. United States, 394 U.S. 459, 466-67, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (footnotes omitted).

In light of the waiver of constitutional rights inherent in a guilty plea, the factual-basis requirement of Rule 14.4(b), Ala. R.Crim. P., allows the trial court to satisfy itself subjectively as to whether the defendant knows what he or she has done and that the acts committed by the defendant constitute the crime with which he or she was charged. Scott, 917 So.2d at 165. “A trial court [in a guilty-plea proceeding] need not make itself aware of evidence establishing the pleader’s guilt beyond a reasonable doubt in order to satisfy itself subjectively that the pleader knows both what he has done and that those acts constitute the crime with which he is charged.” King v. Hawkins, 266 Ga. 655, 656, 469 S.E.2d 30, 32 (1996).

Rule 14.4(b), Ala. R.Crim. P., provides: “Notwithstanding the acceptance of the plea of guilty, the court shall not enter a judgment upon such plea without being satisfied that there is a factual basis for the plea.” The Committee Comments to Rule 14.4(b) provide:

“Section (b) satisfies the requirement in Clark v. State, 294 Ala. 485, 488, 318 So.2d 805, 807-808 (1974), that:
“ ‘In a plea of guilty proceedings, the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea. Further, the judge should be satisfied that there is a factual basis for the plea....
“ ‘In such proceedings a trier of fact does not seek to determine if the accused’s actions would justify a conviction on the full charge contained in an indictment, but only if such action satisfies the degree of guilt admitted by the plea.’
“The court may meet this requirement by eliciting an in-court statement from the defendant, by an in-court statement from the district attorney, or from evidence presented, including that of witnesses, which may be hearsay in whole or in part.”

(Emphasis omitted.)

“The purpose of requiring the trial judge to determine that there is a factual basis for the plea ‘is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.’ ” Alderman v. State, 615 So.2d 640, 647 (Ala.Crim.App.1992) (quoting United States v. Keiswetter, 860 F.2d 992, 995 (10th Cir.1988), remand order withdrawn and plea vacated on rehearing, 866 F.2d 1301 (10th Cir.1989) (en banc)). “The only factual basis required for a guilty plea is that which will satisfy the court that the [defendant] knows what he is pleading guilty to.” Garner v. State, 455 So.2d 939, 940 (Ala.Crim.App.1984). The factual basis for a guilty plea may be established by several sources. “ ‘As long as the factual basis is developed on the record, it may come from several sources.’ ” Yamada v. State, 426 So.2d 906, 909 (Ala.1982) (quoting United States v. King, 604 F.2d 411 (5th Cir.1979) (emphasis omitted)). The district attorney’s “assertions of what he expects the evidence to show” will suffice. Atteberry v. State, 448 So.2d 425, 427 (Ala.Crim.App.1983). “[T]he reading of the indictment [is] sufficient to establish a factual basis for a guilty plea in certain cases, [and] in those cases it is not required that the indictment be read into the record during the guilty plea hearing.” Alvis v. State, 740 So.2d 459, 461 (Ala.Crim.App.1998).

“A guilty plea, if entered voluntarily and with understanding of the consequences, waives all non-jurisdictional defects.” Ex parte Horton, 456 So.2d 1120, 1122 (Ala.1984). A guilty plea waives the right to claim a denial of a speedy trial in violation of the Sixth Amendment. Davis v. State, 469 So.2d 1348 (Ala.Crim.App.1985); a guilty plea waives the right to challenge the trial court’s refusal to suppress evidence. Roden v. State, 384 So.2d 1248 (Ala.Crim.App.1980).

“A guilty plea is a waiver of trial and a waiver of the right to contest the admissibility of any evidence the state might have offered against the defendant, see McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), including an illegal arrest, the validity of a search and seizure, Vann v. State, 44 Ala.App. 523, 214 So.2d 925 (1968), or a prior involuntary confession. Williams v. State, 283 Ala. 668, 220 So.2d 609 (1969).”

Barnes v. State, 354 So.2d 343, 345 (Ala.Crim.App.1978).

The issue before this Court is whether the rule that a defendant may not be convicted solely on the basis of a confession should also apply to a guilty-plea conviction. We hold that the issue of the admissibility of the defendant’s confession without corroboration is waived by the defendant’s plea of guilty. A guilty plea is a judicial confession. “ ‘A voluntary guilty plea concludes the issue of guilt, dispenses with the need for judicial fact finding, is conclusive as to the defendant’s guilt, and is an admission of all facts sufficiently charged in the indictment.’ ” Whitman v. State, 903 So.2d 152, 155 (Ala.Crim.App.2004) (quoting Morrow v. State, 426 So.2d at 484). The rule under which the corpus delicti of a crime must be established applies only when the confession is extrajudicial and the accused pleads not guilty, compelling the prosecution to present evidence to prove its case. When a defendant pleads guilty, he or she admits every fact constituting the elements of the offenses and such a plea conclusively establishes the defendant’s guilt. Once the trial court has determined that the plea is knowing and voluntary, the trial court need only satisfy itself that the defendant knew what he was pleading guilty to.

“ ‘In the United States our concept of justice that finds no man guilty until proven has led our state and federal courts generally to refuse conviction on testimony concerning confession of the accused not made by him at the trial of his case.... In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of the enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession.’
“No such doubt persists as to a voluntary plea of guilty made with an understanding of the charge.”

Waley v. United States, 233 F.2d 804, 806 (9th Cir.1956) (quoting Opper v. United States, 348 U.S. 84, 89-90, 75 S.Ct. 158, 99 L.Ed. 101 (1954)).

Conclusion

We reverse the judgment of the Court of Criminal Appeals reversing the trial court’s denial of G.E.G.’s motion to withdraw his guilty pleas to the drug-related charges and remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

SHAW, J., recuses himself.


author: WELCH, Judge.

text:
    G.E.G. v. STATE of Alabama.
    CR-07-0036.
    Court of Criminal Appeals of Alabama.
    July 30, 2010.
    Thomas M. Goggans, Montgomery; and Trina S. Williams, Montgomery, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   After Remand from the Alabama Supreme Court

WELCH, Judge.

This Court’s judgment in G.E.G. v. State, 54 So.3d 941 (Ala.Crim.App.2008), reversing G.E.G.’s convictions for possession of drug paraphernalia and second-degree possession of marijuana, violations of §§ 13A-12-260(c) and 13A-12-214, Ala. Code 1975, has been reversed by the Alabama Supreme Court in Ex parte G.E.G., 54 So.3d 949 (Ala.2010). Pursuant to the Supreme Court’s opinion, this Court’s judgment entered on December 19, 2008, insofar as it reversed two drug convictions is hereby set aside, and we now affirm G.E.G.’s convictions for possession of drug paraphernalia and second-degree possession of marijuana.

AFFIRMED.

WISE, P.J., and KELLUM and MAIN, JJ., concur. WINDOM, J., recuses herself.

      . This Court affirmed G.E.G.'s conviction for sexual torture. See § 13A-6-65.1, Ala.Code 1975.


author: MAIN, Judge. WELCH, Judge,

text:
    Ernest James LITTLE v. STATE of Alabama.
    CR-08-0634.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Denied Sept. 25, 2009.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   MAIN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, P. J, and WINDOM and KELLUM, JJ., concur. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

In part II of the unpublished memorandum, the majority rejects Little’s argument that the evidence was not sufficient to prove receiving stolen property, second degree, and his argument that the evidence failed to establish that he knew or had reasonable grounds to believe the gun he possessed was stolen. In the memorandum, the majority sets out the legal principles relevant to the evaluation of sufficiency claims, and then it holds:

“In this case, the officer who inventoried Little’s car testified that he ran a check on the gun and found that it had been stolen from someone in Prichard, Alabama. (R. 155.) Detective Charles Saviak of the Mobile Police Department testified that the gun was a Ruger semiautomatic pistol and that it was determined to have been stolen from Prich-ard; that he made this determination using the gun’s serial numbers; that the gun was not registered to Little and a police report had been filed indicating that it had been stolen; and that he was familiar with the cost of the gun, and that the gun was valued at approximately $550.
“This evidence was sufficient to uphold Little’s conviction for second degree receiving stolen property.
“In K.J. v. State, 690 So.2d 541, 545-46 (Ala.Crim.App.1997), this Court held that the evidence was sufficient to uphold K.J.’s adjudication for second degree receiving stolen property. The State had presented evidence that the pistol in K.J.’s possession had a serial number matching that of a gun stolen from a hardware store, and that the gun was valued at $350. In holding that this evidence was sufficient, this court stated:
“‘In Smith v. State, 557 So.2d 1322, 1324 (Ala.Cr.App.1989), this Court held:
“ ‘ “Clearly, ‘the prosecution must prove that the accused actually knew that the property was stolen or that he had reasonable grounds to believe it was stolen.’ Ashurst v. State, 462 So.2d 999, 1004 (Ala.Cr.App.1984). However, it is well settled that the ‘possession of recently stolen goods raises a presumption that the defendant had the requisite “knowledge” [that the goods were stolen].’ Goodman v. State, 401 So.2d 208, 210 (Ala.Cr.App.), cert. denied, 401 So.2d 213 (Ala.1981). See also Ala.Code 1975, § 13A-8-16(b). In fact, both ‘the requisite guilty knowledge and intent for the offense of receiving stolen property “may be inferred by the jury from the possession of recently stolen property as well as [from] the facts and circumstances surrounding the entire transaction.” ’ Carlisle v. State, 465 So.2d 1205, 1206 (Ala.Cr.App.1984).” ’
“K.J. v. State, 690 So.2d at 546.
“Viewing the evidence in the light most favorable to the State, it is clear that sufficient evidence was presented from which the jury could determine beyond a reasonable doubt that Little was guilty of second degree receiving stolen property. Therefore, the trial court properly denied Little’s motion for judgment of acquittal.”

K.J. v. State does not support the majority’s holding here. The majority fails to note that in K.J., the State presented testimony that the firearm K.J. possessed had been stolen on June 22, 1996, and was recovered when K.J. was arrested on July 9, 1996, less than 20 days later. The fact that K.J. was in possession of a recently stolen firearm is what permitted the jury to infer guilty knowledge and intent in that case.

The record in Little’s case contains no testimony about the recency or remoteness of the theft of the firearm found in Little’s possession, only that it had been stolen at some unspecified point in time. During the testimony of Detective Charles Saviak, the following occurred:

“Q. [Prosecutor] What is State’s Exhibit Number 4?
“A. [Det. Saviak] That’s a Ruger semiautomatic pistol that was — came back stolen from the Prichard jurisdiction.
“Q. And how do you know — what is it about that gun, how are you able to identify whether or not it’s stolen or who it belongs to?
“A. Serial numbers.
“Q. Okay. Did that gun have a serial number on it?
“A. Yes, ma’am.
“Q. Okay. And that serial number, was it registered to the Defendant in court?
“A. No, ma’am.
“Q. Okay. And had a police report been filed?
“A. Oh, yes, ma’am.
“Q. Okay. And if you will, tell us — I am sorry, just so — I may have missed it — what type of gun that is.
“A. That’s a Ruger semi-automatic pistol.
“Q. Okay. And about how much do those cost?
“A. Approximately five hundred and fifty bucks.
“Q. Okay. And you are familiar with guns and value of guns?
“A. Yes, ma’am.”

(R. 160-61.)

The only additional testimony about the gun being stolen was Mobile police officer Nathan Young’s testimony in response to a question about whether the gun belonged to Little: “I ran a check on it. The gun actually came back stolen out of Prichard.” (R. 155.)

To establish the crime of receiving stolen property, the State must prove that the defendant knows or has reasonable grounds to believe that the property had been stolen. Furthermore, it is a defendant’s possession of recently stolen goods that raises a presumption that the defendant had the requisite knowledge that those goods were stolen. The record in this case lacks any evidence indicating that Little knew that the firearm was stolen, and no evidence that the firearm had been stolen recently. Therefore, Little’s motion for a judgment of acquittal was well-taken and should have been granted. Because the State failed to prove a prima facie case of receiving stolen property, the case should not have been submitted to the jury, and that conviction should be reversed.

For the foregoing reasons, I dissent from the unpublished memorandum.


author: STUART, Justice.

text:
    Ex parte Ernest James LITTLE. (In re Ernest James Little v. State of Alabama).
    1081819.
    Supreme Court of Alabama.
    March 19, 2010.
    Glenn L. Davidson of Collins, Davidson L.L.C, Mobile, for petitioner.

      Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for respondent.
   STUART, Justice.

Ernest James Little was convicted of second-degree receiving stolen property, a violation of § 13A-8-18, Ala.Code 1975, and the trial court sentenced him to life imprisonment. The Court of Criminal Appeals affirmed Little’s conviction and sentence, in an unpublished memorandum from which Judge Welch dissented, Little v. State, 54 So.3d 958 (Ala.Crim.App.2009). Little petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals. We granted the writ to determine whether the decision of the Court of Criminal Appeals that the State presented sufficient evidence “from which the jury could determine beyond a reasonable doubt that Little was guilty of second-degree receiving of stolen property” conflicts with Wasp v. State, 647 So.2d 81 (Ala.Crim.App.1994). We reverse and remand.

The evidence indicated that a law-enforcement officer on patrol noticed Little’s vehicle because it was similar to a vehicle described in a “be-on-the-lookout” as a vehicle that had been used in a robbery. The officer’s investigation resulted in Little’s receiving two traffic citations and his vehicle being impounded. Before Little’s vehicle was towed for impound, the officers conducted an inventory of its contents and discovered a pistol inside a black satchel. Detective Charles Saviak testified that he had conducted a serial-number check on the pistol and that the check indicated the gun had been “stolen from the Prichard jurisdiction”; that the pistol was not registered to Little; and that a police report had been filed indicating that the pistol was stolen. Officer Nathan Young also testified that he had conducted a record check on the pistol and learned that the pistol had been “stolen out of Prichard.” The testimony indicated that the pistol was worth approximately $550. No evidence was presented as to how Little acquired the pistol or when the pistol was stolen.

Section 13A-8-18(a)(l), Ala.Code 1975, defines the offense of receiving stolen property in the second degree as receiving stolen property that exceeds “five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value.” Section 13A-8-16, Ala.Code 1975, defines the offense of receiving stolen property, stating, in pertinent part:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

In Ashurst v. State, 462 So.2d 999, 1004 (Ala.Crim.App.1984), the Court of Criminal Appeals explained the element of knowledge for establishing a prima facie case of receiving stolen property, stating:

“Under an indictment for receiving stolen property, the prosecution must prove that the accused actually knew that the property was stolen or that he had reasonable grounds to believe that it was stolen. ‘[I]f “reasonable grounds for believing” exist, that element is established, although defendant may have had no “knowledge”.... [I]f the jury believes beyond a reasonable doubt the existence of facts which were known to defendant and which are sufficient in the opinion of the jury to show the existence of “reasonable grounds for believing” that the goods were stolen, and they were in fact stolen, no further inquiry in that respect need be pursued.’ Farzley v. State, 231 Ala. 60, 61, 163 So. 394 (1935); W. LaFave and A. Scott, Criminal Law 687 (1972).”

A person’s knowledge and the requisite intent for the offense of receiving stolen property may be inferred if the person “possesses goods or property which have been recently stolen.” § 13A-8-16(b), Ala. Code 1975. A person’s possession of recently stolen property is prima facie evidence that he or she has the requisite knowledge or belief. Carlisle v. State, 465 So.2d 1205 (Ala.Crim.App.1984).

In Wasp, the Court of Criminal Appeals addressed the permissible inference of knowledge from the fact that the goods or property were recently stolen, stating:

“' “In most cases there is no direct testimony of the receiver’s actual belief. Proof thereof must therefore be inferred from the circumstances surrounding his receipt of the stolen property.” [W.] LaFave [& A. Scott, Criminal Law 686 (1972) ]. Guilty knowledge may be inferred from all the facts and circumstances surrounding the entire transaction concerning the accused’s acquisition of the stolen property. Tombrello v. State, 431 So.2d 1355, 1357 (Ala.Cr.App.1983); Tyree v. State, 407 So.2d 580, 581 (Ala.Cr.App.1981). “ ‘[Gjuilty knowledge may be inferred from the fact that the receiver purchased the goods for very much less than their value.’ Fulton v. State, 8 Ala.App. 257, 263, 62 So. 959 (1913).” Tyree, 407 So.2d at 581. “[A] very inadequate purchase price is a factor which points towards appellant’s guilt.” Fillmore v. State, 647 S.W.2d 300, 303-04 (Tex.App.1982).’
“Ashurst v. State, 462 So.2d 999, 1004 (Ala.Cr.App.1984). See also Sankey v. State, 568 So.2d 366, 369 (Ala.Cr.App.1990).
'The term “recently stolen,” by its very nature, is relative in concept— both as to the passage of time and the type of property involved. It is determined upon the facts of each case and, depending upon the particular circumstances, may vary from a few days to many months. Haynes v. State, Ala.Cr.App., 335 So.2d 203 (1976). The remoteness has regard additionally to the particular factors and considerations surrounding each case. Hence, it is not feasible to state a fixed rule with reference to the element of time lapse. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948). Remoteness of time affects weight rather than admissibility. Yet, as Smither-man points out, evidence must not be so remote in point of time as to be totally without causal connection or logical relation to the criminal act involved.’
“Waters v. State, 360 So.2d 358, 361-62 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978). The evidence in this case indicates that the property was stolen, sold, and recovered in less than one month.”

Wasp, 647 So.2d at 82-83.

Little contends that the decision of the Court of Criminal Appeals holding that the State presented sufficient evidence from which the jury could determine beyond a reasonable doubt that he was guilty of second-degree receiving stolen property conflicts with Wasp. According to Little, the State’s evidence did not establish that he knew or should have known that the pistol was stolen because the evidence did not indicate that the pistol was recently stolen.

In its respondent’s brief, the State contends that the evidence was sufficient to support a finding that Little knew or should have known that the pistol had been stolen considering the circumstances surrounding Little’s possession and use of the pistol.

Unequivocally, the State presented evidence indicating that the pistol in Little’s possession was stolen. Officer Young testified that he “ran a check on [the pistol] ... the gun actually came back stolen out of Prichard.” Detective Saviak testified that his check on the pistol indicated that the pistol had been reported stolen from the Prichard jurisdiction, that a report had been filed stating that the pistol had been stolen, and that the pistol was not registered in Little’s name. However, neither Officer Young nor Detective Saviak presented evidence as to when the pistol was stolen. We cannot agree with the State’s conclusion that the testimony of Officer Young and Detective Saviak suggested that the theft was recent. Their testimony is devoid of any reference as to when the pistol was stolen; therefore, their testimony does not establish that the pistol was recently stolen and does not create an inference, pursuant to § 13A-8-16(b), Ala. Code 1975, that Little knew or had reason to know that the pistol was stolen. Therefore, to the extent the Court of Criminal Appeals relied upon a permissible inference of knowledge under § 13A-8-16(b)(2), Ala.Code 1975, to support a finding of knowledge that holding conflicts with Wasp.

Our review of the record establishes that the State failed to present a prima facie case of receiving stolen property, because the record does not contain any evidence indicating that Little knew or had reasonable grounds to know that the pistol was stolen. We reject the State’s argument that Little’s knowledge that the pistol was stolen can be inferred from the fact that he used the pistol in a robbery. The inference of Little’s knowledge that the pistol was stolen, to support a conviction for receiving stolen property, must be created from the facts and circumstances surrounding Little’s acquisition of the pistol, not from the fact that he used the pistol in another offense. See Wasp, supra. The record is devoid of any evidence concerning Little’s acquisition of the pistol. Because the record does not contain any facts indicating that Little knew or had reason to know that the pistol was stolen, the State did not present a prima facie case of receiving stolen property.

Little has established that the decision of the Court of Criminal Appeals is in conflict with Wasp and that the State failed to present sufficient evidence of the element of knowledge to sustain his conviction for second-degree receiving stolen property. Therefore, the Court of Criminal Appeals erred in affirming the trial court’s denial of Little’s motion for a judgment of acquittal with regard to the second-degree receiving-stolen-property conviction. The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for that court, in turn, to remand the case to the trial court to vacate Little’s conviction for second-degree receiving stolen property.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . Little was also convicted of first-degree robbery, a violation of § 13A-8-41(a)(1), Ala. Code 1975, and sentenced to life imprisonment for that conviction. He apparently did not appeal as to that conviction.

      . The Court of Criminal Appeals did not cite Wasp in its unpublished memorandum. Instead, the court quoted from K.J. v. State, 690 So.2d 541, 545-46 (Ala.Crim.App.1997), which provides the same principles as set forth in Wasp with regard to the permissible inference of the element of knowledge when the evidence establishes that the goods or property were recently stolen.


author: MAIN, Judge.

text:
    Ernest James LITTLE v. STATE of Alabama.
    CR-08-0634.
    Court of Criminal Appeals of Alabama.
    May 28, 2010.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

MAIN, Judge.

On the authority of Ex parte Little, 54 So.3d 960 (Ala.2010), we remand this cause to the Mobile Circuit Court for that court to vacate Little’s conviction for second-degree receiving stolen property in accordance with the Alabama Supreme Court’s opinion.

REMANDED WITH DIRECTIONS.

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

       Note from the reporter of decisions: On July 16, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Carmen VALCARCEL and Victor Valcarcel, Appellants, v. CHASE BANK USA NA, Appellee.
    No. 4D10-379.
    District Court of Appeal of Florida, Fourth District.
    Nov. 24, 2010.
    Rehearing Denied March 25, 2011.
    Thomas E. Ice and Enrique Nieves of Ice Legal, P.A., Royal Palm Beach, for appellant.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Sche-fer, P.A., Hollywood, for appellee.
   TOWBIN SINGER, MICHELE, Associate Judge.

This is an appeal from the trial court’s denial of a motion for attorney’s fees. Chase had filed a foreclosure action against the Valcareels. The trial court dismissed without prejudice Chase’s foreclosure action against the Valcareels, not on the merits but rather due to misconduct of counsel for Chase. The Valcareels then filed a Florida Rule of Civil Procedure 1.525 Motion for Attorneys’ Fees and Costs asserting that they were entitled to costs as the prevailing party and also under rule 1.420(d). They also argued that they are entitled to attorney’s fees as the prevailing party pursuant to section 57.105(7), Florida Statutes (2009), as provided for in the fee provisions of the note and mortgage. The trial court concluded that the order of dismissal was not a judgment and denied the motion for fees and costs. The Valcareels filed this appeal.

Chase argues on appeal that the order dismissing its foreclosure action was not a final order and, therefore, this non-final order on the motion for attorney’s fees is not appealable under Florida Rule of Appellate Procedure 9.130. Chase further argues that in any event, the order of dismissal should not entitle the Valcareels to recover attorney’s fees.

First, this court addresses Chase’s jurisdiction argument. Florida Rule of Appellate Procedure 9.130(a)(4) provides that non-final orders entered after the final order on authorized motions are reviewable. Therefore, the question is whether the order of dismissal without prejudice is a final appealable order.

An order dismissing an action without prejudice and without granting leave to amend is a final appealable order. Silvers v. Wal-Mart Stores, Inc., 763 So.2d 1086, 1086 (Fla. 4th DCA 1999); see also Carnival Corp. v. Sargeant, 690 So.2d 660 (Fla. 3d DCA 1997). “The order of dismissal is clearly final when, for instance, the claim could only be pursued by filing a new complaint....” Hinote v. Ford Motor Co., 958 So.2d 1009, 1010 (Fla. 1st DCA 2007) (citing Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA 2004)). Chase has not cited any case which holds otherwise. Therefore, Chase’s argument that the order was not final is totally without merit and this court has jurisdiction.

We next address the issue of attorney’s fees. “Generally, a trial court’s determination of which party prevailed and its award of attorney’s fees is reviewed for an abuse of discretion.” T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010) (citations omitted). “However, when entitlement rests on the interpretation of a statute or contract, our review is de novo.” Id.

The Valcareels argue that they are entitled to attorney’s fees as the prevailing party. The Valcareels’ note and mortgage provides that the prevailing party would be entitled to attorney’s fees and costs. Thus, the next issue is whether the Valcar-cels can be considered the prevailing party. It is not necessary for there to be an adjudication on the merits in order to be entitled to fees as a prevailing party. See, e.g., Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063 (Fla. 2d DCA 2004).

The trial court granted the Valcareels’ motion to dismiss as a sanction against Chase for sending a letter regarding the Valcareels’ mortgage directly to the Val-carcels, rather than the Valcareels’ lawyer. This mailing was a violation of rule 1.080(b), which requires service to be made upon a party’s attorney when he is represented by counsel.

Florida Rule of Civil Procedure 1.420(b) provides in pertinent part: “(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” Rule 1.420(d) provides: “(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”

In Stout Jewelers, Inc. v. Corson, 639 So.2d 82 (Fla. 2d DCA 1994), the court stated:

Rule 1.420(d) provides in pertinent part that “[cjosts in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.” In the context of a plaintiffs voluntary dismissal of a case, Florida courts have consistently interpreted the rule as authorizing a trial court to award attorney’s fees as costs to a defendant as the prevailing party when such an award is provided for either by statute or a contract between the parties. E.g., Stuart Plaza, Ltd. v. Atlantic Coast Dev. Corp. of Martin County, 493 So.2d 1136 (Fla. 4th DCA 1986). Since rule 1.420(d) contemplates both voluntary and involuntary dismissals, we see no reason why this interpretation should not be applied to a situation involving an involuntary dismissal of a plaintiffs case. Thus, based on the fee provision in the parties’ lease, Stout was entitled to an award of fees as costs for successfully obtaining an involuntary dismissal of the case if it was the prevailing party.

Id. at 83-84.

In Frazier v. Dreyfuss, 14 So.3d 1183 (Fla. 4th DCA 2009), the plaintiffs appealed from an order awarding attorney’s fees against them in favor of the defendant as the prevailing party following the trial court’s dismissal of their action alleging securities fraud because they failed to arbitrate their claims. Citing Alhambra Homeowners Association v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006), this court affirmed the award. In Asad, the plaintiff realized that it had not given notice as a condition precedent to its suit and voluntarily dismissed its complaint. The trial court found that the defendants were the prevailing party and awarded them attorney’s fees. Relying on Asad, this court held that the defendant prevailed when the case was dismissed even though it was an involuntary dismissal as opposed to a voluntary dismissal as in Asad. Frazier, 14 So.3d at 1185.

The trial court erred in denying the Valcarcels’ motion for attorney’s fees and costs based upon its finding that the order was not a judgment. Although the dismissal order was not an adjudication on the merits, the Valcarcels can nonetheless be considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed. We, therefore, reverse and remand to the trial court to determine the amount of attorney’s fees that should be awarded to the Valcarcels for both the trial and appellate proceedings.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ., concur.


author: TAYLOR, J.

text:
    BELLE GLADE CHEVROLET-CADILLAC BUICK PONTIAC OLDSMOBILE, INC., Appellant, v. Benjamin FIGGIE, Appellee.
    No. 4D09-307.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied March 15, 2011.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Robert J. Hauser of Beasley Hauser Kramer Leonard & Galardi, P.A., West Palm Beach, and William H. Pincus and Romin N. Currier of the Law Offices of William H. Pincus, West Palm Beach, for appellee.
   TAYLOR, J.

This appeal concerns punitive damages awarded for a defective Jaguar automobile purchased by the plaintiff, Benjamin Fig-gie, from the defendant, Belle Glade Chevrolet Cadillac Buick Pontiac Oldsmobile, Inc. (Belle Glade). Belle Glade appeals the trial court’s final judgment awarding the plaintiff $11,472.50 in compensatory damages for fraud and $100,000 in punitive damages. Plaintiff cross-appeals the court’s refusal to apply a multiplier to his attorney’s fee award. Because we reverse the punitive award due to improper jury instructions, the cross-appeal is rendered moot.

On January 13, 2005, plaintiff test-drove a 1998 Jaguar at Belle Glade. The car had 45,000 miles on it, and the salesperson told him that the ear had been maintained and everything was in working order. Plaintiff decided to buy the car. He obtained a loan and paid $10,000 to a broker for Members Auto Lease, Inc., which transferred the money to Belle Glade.

When plaintiff contacted the Belle Glade salesperson to arrange to pick up the car, he was told that he could not pick it up for a week. Later, he was told that the car was locked in the service department. Plaintiff went to Belle Glade and discovered that between the time of his test drive and the time he purchased the car, the engine had blown. In addition, the odometer had over 2,000 more miles on it. Plaintiff demanded return of his $10,000, but Belle Glade refused to refund his money.

Plaintiff filed a complaint against Belle Glade, which, after a few amendments, alleged civil theft, conversion, negligence, breach of contract, violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), and asserted a claim for fraud and punitive damages.

In anticipation of the defendant’s “low net worth defense” to its punitive damages claim, plaintiff sought financial discovery from the defendant through requests for production, interrogatories, and other means. Responses were due within 30 days. After the defendant failed to timely respond or object to the discovery requests, plaintiff moved to compel discovery. The defendant filed a motion for a protective order as to discovery relating to punitive damages. Plaintiff filed another motion to compel such discovery.

The trial court entered an agreed order granting plaintiffs motion to compel and ordering defendant to provide discovery by a certain date. After the time passed, plaintiff moved for sanctions against the defendant for failing to follow the court’s order and timely provide discovery. The court granted plaintiffs motion for sanctions and ordered that Belle Glade produce the remaining discovery due under the agreed order. It warned that failure to comply could result in a default judgment on liability and/or other sanctions.

Plaintiff filed several more motions to compel and for sanctions regarding the outstanding discovery. The defendant provided tax returns and limited accounting information but failed to produce all the documents plaintiff sought. Ultimately, after a hearing on plaintiffs motion for default, the trial court entered an order finding that “Belle Glade has demonstrated contumacious disregard for this Court’s orders by deliberately refusing to produce documents despite four (4) prior orders compelling it to do so.” The court entered default judgment against Belle Glade as to all counts and found Belle Glade was prohibited from asserting a low net worth defense in response to plaintiffs punitive damages claim.

However, upon Belle Glade’s motion for rehearing on the court’s order of default, the trial court vacated the default and granted Belle Glade an evidentiary hearing. After the hearing, the court entered an order finding there was “no showing that [Belle Glade] made a good faith effort to comport with its discovery obligations herein, or to obey the numerous Court Orders entered in repeated attempts to permit [Plaintiff] to obtain discovery herein.... This Court has previously found, and continues to find, that [Belle Glade] was willfully disobedient of this Court’s Orders; that finding has not been refuted by the testimony and evidence provided at the latest hearing.” The court re-entered its prior judgment of default. It stated, “[e]ven if some documentation had been belatedly furnished as represented by [Belle Glade], [Belle Glade’s] demonstrable repeated and serious willful refusals to comply with this Court’s Orders, amounting to deliberate and contumacious disregard of this Court’s authority, remain proven, militating against vacating the default previously entered.” Further, the court indicated that this failure to obey was not the fault of counsel, but the intentional behavior of Belle Glade, and that the recent hearing only strengthened this finding. The court entered a default as a sanction. It struck Belle Glade’s pleadings and defenses and prohibited Belle Glade from asserting a low net worth defense in response to plaintiffs punitive damages claim.

Plaintiff then filed a motion for summary judgment. The court granted the motion and entered an order that plaintiff was entitled to compensatory damages of $10,000 under each theory that he had pled, interest on the new car loan of $1,472.50, plus treble damages under Florida’s civil theft statute. Plaintiffs compensatory damages thus totaled $31,472.50. The case went to jury trial only on punitive damages for fraud.

At trial, the court prohibited Belle Glade from presenting evidence of its low net worth and, further, instructed the jury as follows:

Defendant Belle Glade Chevrolet acted with the criminal intent to purposely deprive plaintiff Benjamin Figgie of his money.
The court has determined and now instructs you, as a matter of law, that defendant Belle Glade Chevrolet is liable to plaintiff Benjamin Figgie for civil theft in the amount of $10,000, plus interest in the amount of $1,472.50, for a total compensatory damages award of $11,472.50.
The court has determined and instructs you, as a matter of law, that defendant Belle Glade Chevrolet is liable to plaintiff Benjamin Figgie on his claim for conversion in the amount of $10,000, plus interest in the amount of $1,472.50, for a total compensatory damage award of $11,472.50.
While the vehicle was in the sole possession and control of defendant Belle Glade Chevrolet defendant Belle Glade Chevrolet had a duty to take care of the vehicle and ensure it was kept in proper working condition;
Defendant Belle Glade Chevrolet breached this duty and then lied to plaintiff Benjamin Figgie about the problems with the vehicle; and
Defendant Belle Glade Chevrolet’s breach of its duty to take care of the vehicle is the proximate cause of plaintiff Benjamin Figgie’s damages.
The court has determined and instructs you, as a matter of law, that defendant Belle Glade Chevrolet is liable to plaintiff Benjamin Figgie on his claim for negligence in the amount of $10,000, plus interest in the amount of $1,472.50, for a total compensatory damage award of $11,472.50.
As a direct and proximate result of the above-described acts defendant Belle Glade Chevrolet has engaged in the unlawful method of competition, unconscionable acts or practices and unfair or deceptive acts or practices in the conduct of trade or commerce, in violation of Florida Statute Section 501.204(1); and
As a direct and proximate result of the violation of the Florida Deceptive & Unfair Trade Practices Act plaintiff Benjamin Figgie has been damaged.
The court has determined and instructs you, as a matter of law, that defendant Belle Glade Chevrolet is liable to plaintiff Benjamin Figgie on his claim for violation of the Florida Deceptive & Unfair Trade Practices Act in the amount of $10,000, plus interest in the amount of $1,472.50, for a total compensatory damages award of $11,472.50.
On plaintiff Benjamin Figgie’s claim against defendant Belle Glade Chevrolet for fraud you are instructed that:
Despite knowing that the vehicle was damaged, the defendant Belle Glade Chevrolet misrepresented the condition of the vehicle or concealed these facts from plaintiff Benjamin Figgie to induce him to purchase the vehicle;
Such misrepresentations and/or con-cealments were made knowingly or recklessly without and without belief in their truths;
The court has determined and instructs you, as a matter of law, that defendant Belle Glade Chevrolet is liable to plaintiff Benjamin Figgie on his claim of fraud in the amount of $10,000, plus interest in the amount of $1,472.50, for a total, I’m sorry, total compensatory damage award of $11,472.50.
Although the court has determined that, as a matter of law, plaintiff Benjamin Figgie has prevailed and is entitled to compensatory damages on each of the six claims that he brings, each compensatory damage award is mutually exclusive of each other compensatory damage award such that plaintiff Benjamin Fig-gie’s damage award is singular and not cumulative; that is, plaintiff Benjamin Figgie is entitled to one, and only one, compensatory damage award.
Although it has been established that defendant Belle Glade Chevrolet committed acts for which an award of punitive damages is an available remedy, whether to award punitive damages to plaintiff Benjamin Figgie is an issue for you to decide, based upon your assessment of the circumstances of this case.
In determining the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others, you should decide any factual issues by the greater weight of the evidence. Greater weight of the evidence means the more persuasive and convincing force and effect of the entire evidence in the case. You should consider the nature, extent and degree of defendant Belle Glade Chevrolet’s misconduct and the related circumstances, including whether the wrongful conduct was motivated solely by unreasonable financial gain.
You may, in your discretion, decline to assess punitive damages or to assess only a nominal amount.

The jury returned a verdict of $100,000 in punitive damages for plaintiff. On the verdict form it answered that Belle Glade had a specific intent to harm plaintiff and that its conduct did in fact harm plaintiff. It answered that Belle Glade’s conduct was not motivated solely by unreasonable financial gain.

Plaintiff filed a motion for attorney’s fees and costs, alleging entitlement under the civil theft statute and FDUTPA, and under the statute governing proposals for settlement. The motion also requested a multiplier of up to 2.5. After a hearing on attorney’s fees, the court decided not to apply a multiplier.

The court entered final judgment awarding plaintiff $11,472.50 in compensatory damages for fraud and $100,000 in punitive damages. It determined that plaintiff was the prevailing party and awarded him $10,932.56 in costs and $179,472.50 in attorney’s fees. Belle Glade appealed the final judgment. Plaintiff cross-appealed the trial court’s ruling against a multiplier.

Belle Glade argues that the trial court abused its discretion in imposing a default as a sanction for discovery violations and denying it the right to produce evidence of its net worth at the punitive damages trial. Belle Glade also argues that the trial court abused its discretion in instructing the jury on punitive damages. Specifically, it argues that the jury instructions invaded the province of the jury to decide entitlement to punitive damages by unnecessarily characterizing its conduct. Belle Glade complains that the instructions improperly informed the jury that it had committed civil theft and fraud, lied, acted unconscionably and with criminal intent, and recklessly made misrepresentations.

Sanctions imposed pursuant to Florida Rule of Civil Procedure 1.380 are reviewed under an abuse of discretion standard. Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA 2002). A trial court does not abuse its discretion in imposing the severe sanctions of striking pleadings and entering a default where evidence shows deliberate and contumacious disregard of the court’s discovery orders. Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983). In this case, we find no abuse of discretion in the trial court’s decision to enter a default, because there exists ample record support for the court’s express findings regarding Belle Glade’s ongoing pattern of willful disregard of the court’s discovery orders.

Further, because Belle Glade improperly withheld substantial punitive damages net worth information requested by plaintiff, we find no error in the trial court’s disallowance of the “low net worth” defense at trial as a discovery sanction. The failure to produce documents justifies the striking of a claim or defense to which the documents pertain. Fla. R. Civ. P. 1.380(b)(2)(B) (2007). See Nationwide Lift Trucks, Inc., 832 So.2d at 825 (stating that the destruction of relevant evidence may justify striking a specific defense).

We face a more difficult question, however, on the issue of jury instructions. Belle Glade argues that the jury instructions on punitive damages invaded the province of the jury and unnecessarily characterized its conduct by telling the jury that it had committed civil theft and fraud, lied, acted unconscionably and with criminal intent, and recklessly made misrepresentations. These instructions, according to Belle Glade, tainted the jury’s decision-making on punitive damages.

In formulating jury instructions, the trial court is accorded broad discretion, and “its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the jury instructions were reasonably calculated to confuse or mislead the jury.” Chevron U.S.A., Inc. v. Forbes, 783 So.2d 1215, 1218 (Fla. 4th DCA 2001) (citing Johnson v. State, 747 So.2d 436 (Fla. 4th DCA 1999)). Further, “ ‘the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.’” Carpenter v. State, 785 So.2d 1182, 1200 (Fla.2001) (quoting James v. State, 695 So.2d 1229, 1236 (Fla.1997)).

In Humana Health Insurance Co. of Florida, Inc. v. Chipps, 802 So.2d 492, 495-96 (Fla. 4th DCA 2001), we reversed an award of punitive damages because “the jury instructions invaded the province of the jury by characterizing the conduct of the defendants.” As in this case, a default judgment had been entered against the defendant as a sanction for discovery violations, and liability for both compensatory damages and punitive damages on the fraud count was thereby established. Id. at 494. At the trial on punitive damages, the court told the jury that “Humana’s conduct was ‘so gross and flagrant as to show a reckless disregard of human life or the safety of persons exposed to the effects of its conduct,’ ” and that “Humana’s conduct ‘showed such an entire lack of care that Humana must have wantonly and recklessly disregarded the safety and welfare of the public.’ ” Id. at 496. Further, the court failed to instruct the jury that it had the discretion to decline to award punitive damages. Id.

We reversed the $78.5 million punitive damages award against Humana, explaining that “[t]o assess punitive damages, a jury must evaluate the degree of ‘malice, wantonness, oppression, or outrage’ demonstrated by the evidence in the case.... While there is overlap between the issues of entitlement to punitive damages and the amount of such damages to be awarded, care should be taken to let the jury arrive at its own decision regarding the egregiousness of the defendant’s conduct.” Id. We concluded that the jury instruction given in Chipps interfered with the jury’s fact-finding function by characterizing and summarizing the evidence. Id.

Likewise, in Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283, 1289 (Fla. 1st DCA 1993), although the First District Court of Appeal upheld a new trial on punitive damages as a sanction against the defendant for discovery violations, the court cautioned the trial court on remand to fashion jury instructions that avoid prejudicing the jury’s consideration of the nature, extent, and degree of the defendant’s misconduct. The court advised that, after giving the appropriate jury instruction, the trial court “should instruct the jury that it has already been established that Nordyne committed acts for which an award of punitive damages is an available remedy, and that the jury is not to concern itself with that issue.” Id. In addition, the First District suggested telling the jury that whether to award punitive damages is an issue for the jury to decide, based on its assessment of the circumstances of this case, and that punitive damages are designed to act as punishment and as a deterrent to others. Id.

Thus, as Chipps and Nordyne make clear, even a sanctioned defendant must be permitted to contest the nature and extent of its wrongdoing in the punitive-damages phase of the trial. Despite litigation misconduct, the jury must be allowed to reach “its own decision regarding the egregiousness of the defendant’s conduct.” Chipps, 802 So.2d at 496. Although the trial court in this case did instruct the jury that it could decline to award punitive damages, it told the jury that it must accept that Belle Glade acted with criminal intent to deprive plaintiff of his money; engaged in unlawful, unconscionable, unfair or deceptive conduct; and made knowing or reckless misrepresentations. While it is true that the torts of civil theft, fraud, conversion, and deceptive and unfair trade practices contain these elements, and that these intentional bad acts were deemed admitted by Belle Glade’s default, the parties agreed that punitive damages were award-able only on the fraud claim; thus, reading the complaint’s entire allegations to the jury and telling them to accept those facts as true may have interfered with the jury’s ability to independently determine the egregiousness of Belle Glade’s conduct.

Section 768.72(2), Florida Statutes (2009) (emphasis added), provides that “[a] defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence.” Here, factual findings that were binding as to Belle Glade’s default liability for various tort claims were impermissibly made binding on disputed issues relevant to the jury’s evaluation of the degree of “ ‘malice, wantonness, oppression, or outrage’ ” for punitive damages purposes. See Chipps, 802 So.2d at 496. Following Nordyne’s suggestion to simply tell the jury that the claims had already been proven by default and that they were not to concern themselves with those issues would have better ensured that the jury would arrive at its own decision on punitive damages, “based upon [its] assessment of the circumstances of this case.” See Nordyne, 625 So.2d at 1289. We conclude that the instructions given in this case unnecessarily summarized and highlighted the egregiousness of Belle Glade’s conduct and thus invaded the province of the jury to decide punitive damages.

In sum, we hold that the trial court did not abuse its discretion in entering a default against Belle Glade and prohibiting it from presenting low net worth evidence at the punitive damages trial as sanctions for its discovery violations. However, because we conclude that the trial court abused its discretion in instructing the jury on punitive damages, we reverse the punitive damages award and remand for a new trial on punitive damages. Accordingly, we need not address Belle Glade’s arguments regarding the amount of the punitive damage award or the plaintiffs arguments on cross-appeal concerning the trial court’s denial of a multiplier.

Reversed and Remanded.

WARNER and MAY, JJ., concur.

      . The parties later agreed that plaintiff could not receive a trebled damages award under section 772.11, Florida Statutes, because such damages would impermissibly overlap with the jury’s award of punitive damages. The final judgment thus granted a compensatory award of $11,472.50.

      . The settlement offer was $7,500; plaintiff’s award was in excess of 125% of the proposal.

      . We noted that a default on entitlement to punitive damages was unusual. Chipps, 802 So.2d at 496.