text:
    Terry W. RODGERS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00212-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Terry W. Rodgers, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In September 2006, Terry Rodgers pleaded guilty in Lee County Circuit Court to two counts of aggravated assault and one count of possession of methamphetamine. Rodgers was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) on both counts of aggravated assault. He was also sentenced to eight years in the custody of the MDOC without eligibility for parole or probation due to application of the habitual-offender statute for the count of possession of methamphetamine. All sentences were designated to run concurrently. In September 2009, Rodgers filed a motion for post-conviction relief (PCR), claiming that he had received ineffective assistance of counsel and that he had not properly entered guilty pleas. The circuit court denied Rodgers’s PCR motion in January 2010. Aggrieved, Rodgers now appeals. Finding no error, we affirm.

FACTS

¶ 2. On September 5, 2006, Rodgers pleaded guilty to two counts of aggravated assault and one count of possession of methamphetamine in excess of one gram, in violation of the Uniform Controlled Substance Act. Prior to Rodgers’s arraignment, the circuit court had ordered a mental evaluation of Rodgers to analyze his claim that he was incompetent to plead guilty or stand trial. After reviewing the medical report submitted by Rodgers’s examining doctor, the court determined that Rodgers was “thoroughly competent to understand and appreciate” the processes of entering guilty pleas and standing trial.

¶ 3. Thereafter, the circuit court sentenced Rodgers to twenty years in the custody of the MDOC, with five years suspended and five years of post-release supervision (PRS) for the first count of aggravated assault. He received twenty years in the custody of the MDOC with five years suspended for the second count of aggravated assault. Finally, due to Rodgers’s prior felony convictions of shooting into a dwelling and possession of a firearm by a convicted felon, the circuit court applied the habitual-offender statute and sentenced Rodgers to eight years in the custody of the MDOC without eligibility for parole or probation for the count of possession of methamphetamine.

¶ 4. On September 24, 2009, Rodgers filed a PCR motion claiming that his counsel was constitutionally ineffective, and that he did not knowingly, intelligently, and voluntarily enter guilty pleas on the instant charges. In a lengthy order, the circuit court denied the PCR motion.

¶ 5. Aggrieved, Rodgers appeals and asserts the following: (1) his counsel was ineffective by failing to conduct an adequate investigation into his mental condition, failing to request a pretrial competency hearing, and failing to ensure that he was aware of the consequences of the charges against him; and (2) his guilty pleas were not knowingly, intelligently, and voluntarily entered.

DISCUSSION

I. Statute of Limitations

¶ 6. Mississippi Code Annotated section 99-39-5(2) (Supp.2010) provides that a prisoner has three years within which to request post-conviction relief. After that time, only certain cases are excepted from the procedural bar. Exceptions to the three-year statute of limitations are as follows:

That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the petitioner’s] conviction or sentence or that [the petitioner] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or [t]hat, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss.Code Ann. § 99-39-5(2).

¶ 7. Rodgers filed his PCR motion on September 24, 2009 — over three years after his conviction. While he anticipatorily addressed the State’s statute-of-limitations argument in his appellate brief, Rodgers failed to assert any of the above-mentioned conditions that would negate the procedural bar. Accordingly, we find that Rodgers’s PCR motion is statutorily prohibited and that his ensuing issues are moot. Nonetheless, assuming arguendo that Rodgers’s PCR motion were not barred, we address the merits of his claims.

II. Ineffective Assistance of Counsel

¶ 8. It is well-settled law that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he or she must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008). Additionally, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)).

¶ 9. Here, Rodgers claims that his counsel’s deficient performance was reflected in her failure to investigate his alleged mental condition properly and her failure to request a pretrial hearing before the arraignment. However, contrary to Rodgers’s claims, his counsel requested a competency hearing, which was granted. The circuit court scheduled Rodgers’s pretrial hearing and his arraignment back-to-back on the same day. Combining the pretrial hearing and the arraignment was an administrative decision by the circuit court, and it did not reflect any deficient performance by Rodgers’s counsel. Thereafter, Rodgers’s counsel secured a mental evaluation by Dr. Chris Lott, a clinical psychologist, who provided a complete written report for the circuit court’s review. Accordingly, we find that Rodgers’s counsel’s efforts did not constitute deficient performance with regard to an exploration into Rodgers’s legal competency-

¶ 10. Finally, the record reflects that Rodgers testified in open court that he was satisfied with the legal services and the advice he received from his lawyer. He also stated he felt that he had been adequately represented by his lawyer. Additionally, Rodgers was subjected to a thorough questioning by the circuit court regarding his understanding of the charges against him. Rogers’s testimony reflects that he was aware of the charges and the consequences of pleading guilty to the charges before he entered his guilty pleas. As such, Rodgers has failed to meet the burden of proof regarding his ineffective-assistance-of-counsel claims. We find these issues are meritless.

III. Voluntariness of Guilty Plea

¶ 11. It has long been held that when reviewing the voluntariness of guilty pleas, an appellate court “will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.” Walton v. State, 16 So.3d 66, 70 (¶ 8) (Miss.Ct.App.2009) (quoting House v. State, 754 So.2d 1147, 1152 (¶24) (Miss. 1999)). Furthermore, “[t]he burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.” Id. at 70 (¶ 8) (citation omitted).

¶ 12. Rodgers asserts that his guilty pleas were not properly entered due to erroneous advice from his trial counsel and Rodgers’s mental incapacity. Since we have already negated Rodgers’s arguments regarding his counsel’s performance, this associated claim of allegedly deficient counsel must also fail. In support of his argument that his mental condition prevented him from validly entering his guilty pleas, Rodgers provides reports that were promulgated many years ago during a review by the Social Security Administration with respect to Rodgers’s claim for disability. Specifically, the two reports were written fifteen years and eight years, respectively, prior to Rodgers’s guilty pleas and, thus, fail to reflect Rodgers’s medical condition at the time of his guilty pleas. Additionally, while the reports were completed by competent licensed physicians, the reports were simply compiled to determine whether Rodgers qualified for disability with the Social Security Administration. Therefore, in addition to being outdated, the reports failed to address the issue at hand — Rodgers’s state of mind regarding his legal competency to enter his guilty pleas, stand trial, or cooperate in his defense.

¶ 13. In the course of his analysis, the circuit judge reviewed the written report submitted by Dr. Lott, the psychologist retained by Rodgers’s counsel. Dr. Lott examined Rodgers immediately prior to the arraignment, and in his report, Dr. Lott asserted that Rodgers “had an intellectual level that would have enabled him to understand the nature and quality of his alleged actions and understand the difference between right and wrong.” The circuit court discussed Dr. Lott’s findings at the arraignment and went on to administer a thorough questioning of Rodgers’s comprehension of the charges brought against him and the consequences of entering guilty pleas to those charges in lieu of standing trial. The circuit court determined that Rodgers was legally competent to understand both the nature of his crimes and the consequences of pleading guilty to the crimes.

¶ 14. Therefore, we find that Rodgers has failed to meet his burden of proving that the circuit court was clearly erroneous in its determination that he knowingly, intelligently, and voluntarily entered guilty pleas on the instant charges. This issue is meritless.

CONCLUSION

¶ 15. Rodgers failed to request post-conviction relief within the allotted three-year statute of limitations pursuant to Mississippi Code Annotated section 99-39-5(2). Accordingly, his PCR motion is pro-eedurally barred. Nonetheless, a review of the record reflects that Rodgers’s claims of ineffective assistance of counsel and involuntarily entering of his guilty pleas are meritless. Accordingly, we affirm the circuit court’s judgment.

¶ 16. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Lawrence F. WILLIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01257-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Lawrence F. Willis, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Lawrence Floyd “Truck” Willis appeals the Lauderdale County Circuit Court’s dismissal of his motion for post-conviction collateral relief. Willis asserts that: (1) his guilty plea was not entered voluntarily, knowingly, or intelligently; (2) the circuit court should not have accepted his guilty plea in the absence of independent evidence as to his criminal culpability; (3) his sentence as a habitual offender was improper; and (4) his counsel was ineffective. We find no error and affirm.

FACTS

¶ 2. In July 2003, Willis was indicted for one count of possession of cocaine with intent to sell. Because Willis had been convicted previously of three drug-related felonies, the State sought to sentence Willis under the enhancement statute of Mississippi Code Annotated section 41-29-147 (Rev.2009). Willis was also charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶3. Willis’s indictment contained a habitual-offender attachment, which evinced the three prior felony convictions relied upon by the State. On August 10, 1984, Willis was convicted of one charge for the sale of marijuana, and he was sentenced to serve five years of incarceration. Willis was subsequently convicted of possession of cocaine on February 25, 1985, and he received another five-year prison sentence. Finally, on February 20, 1992, Willis was convicted of the sale of cocaine, and he was sentenced to twelve years in prison.

¶ 4. On April 28, 2004, Willis entered his guilty plea in the instant case to one charge of possession of cocaine with the intent to sell. The terms of the plea agreement permitted Willis to plead guilty to the charge as a habitual offender; however, by doing so, the State agreed not to seek sentencing under the enhancement statute. Additionally, the State agreed not to seek the maximum sentence under the habitual-offender statute; rather, the plea agreement provided that the circuit judge would have discretion to sentence Willis to a lesser term if he saw fit to do so.

¶ 5. On June 3, 2004, Willis was sentenced as a habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). As a consequence of pleading guilty as a habitual offender, Willis became ineligible for probation, parole, earned-time or good-time credit, and any suspension or reduction of the sentence.

¶ 6. On June 23, 2007, Willis filed a motion for post-conviction collateral relief. The circuit judge dismissed this motion. Aggrieved by this decision, Willis now appeals.

STANDARD OF REVIEW

¶ 7. Our standard of review for a dismissal of a motion for post-conviction collateral relief is well established. A circuit court’s dismissal of a motion for post-conviction collateral relief will not be reversed on appeal absent a finding that the circuit court’s decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Whether Willis’s guilty plea was entered voluntarily, knowingly, and intelligently.

¶ 8. Willis contends that his guilty plea was involuntary and that he only entered the guilty plea as part of an irresistible impulse to protect the passenger of his vehicle. Willis now maintains that he was innocent; however, at the time he entered his guilty plea, he was “afraid for the passenger of the car because he had never been in any trouble before.” We are unconvinced by this argument.

¶ 9. The plea colloquy demonstrates that Willis’s guilty plea was voluntary, knowing, and intelligent. A plea is considered “voluntary and intelligent” when the defendant knows the elements of the charge against him, understands the charge’s relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The record indicates that Willis not only entered his guilty plea upon his own free will, but he also understood the consequences that such a plea would compel. His plea colloquy, in pertinent part, provides:

THE COURT: Do you understand that possession of cocaine with intent to distribute under the habitual offender statute carries a penalty of from zero to thirty years with the Mississippi Department of Corrections and any sentence that you would serve would be served day-for-day without the possibility of any type of release consideration?
DEFENDANT: Yes, sir.
THE COURT: So if I understand what you are telling the Court, you are entering your plea of guilty freely, voluntarily and knowingly with a full understanding of all matters that are set forth not only in your indictment that charges you with your felony, but in your petition to plead guilty as well; is that correct?
DEFENDANT: Yes, sir.

¶ 10. Accordingly, we find that Willis’s plea of guilty was entered voluntarily, knowingly, and intelligently. Therefore, we find this issue is without merit.

2. Whether the circuit court erred by accepting Willis’s guilty plea in the absence of independent factual evidence of his criminal culpability.

¶ 11. Willis submits two arguments alleging that the circuit court erred when it accepted his guilty plea: (1) the elements for possession of cocaine could not have been proven by the prosecution; and (2) outside of his own admission, there was no independent evidence which evinced his criminal culpability.

¶ 12. Willis alleges that he was improperly charged with possession of cocaine with intent to sell because the State failed to prove the elements required for actual or constructive possession. Willis contends that the drugs were discovered by law enforcement one block from the scene of his arrest; therefore, he was not in such proximity to the drugs to be criminally liable for possession. However, this issue was not presented to the circuit court; therefore, we are barred from considering it in this proceeding. As this Court has explained:

It is well settled that issues not raised below may not be raised on appeal. “Questions will not be decided on appeal which were not presented to the trial court and that court given an opportunity to rule on them. In other words, the trial court cannot be put in error, unless it has had an opportunity of committing error.” Stringer v. State, 279 So.2d 156, 158 (Miss.1973); Jones v. State, 915 So.2d 511, 513 (¶ 7) (Miss.Ct.App.2005).

Austin v. State, 971 So.2d 1286, 1288 (¶ 8) (Miss.Ct.App.2008). Accordingly, we find this issue is procedurally barred because Willis failed to raise it in his motion for post-conviction collateral relief.

¶ 13. Willis further argues that the circuit court was in error when it accepted his guilty plea when there was no evidence presented which evinced his criminal culpability — notwithstanding, of course, his own admission of guilt. However, an adequate factual basis for the plea may be formed by any record evidence before the court, including the defendant’s own admission of guilt. Turner v. State, 961 So.2d 734, 737 (¶ 6) (Miss.Ct.App.2007) (citing Corley v. State, 585 So.2d 765, 767 (Miss.1991)). We look to the entire record to determine if such a factual basis exists. Drake v. State, 823 So.2d 593, 594 (¶ 5) (Miss.Ct.App.2002).

¶ 14. Moreover, we have held that a plea of guilty waives any evidentiary issue. Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003). In Cherry v. State, 24 So.3d 1048, 1052 (¶ 9) (Miss.Ct.App.2010) (quoting Drake, 823 So.2d at 594 (¶ 6)), this Court rejected the same logic put forth by Willis in this appeal, holding:

The mere fact that the factual basis does not provide all the details which may be produced at trial does not make the guilty plea invalid. This Court has held that, “if sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea.”

¶ 15. We are satisfied that Willis’s indictment, his petition to enter a plea of guilty, and the language of the plea colloquy each provided the circuit court with a sufficient factual basis to accept the guilty plea. Here, as in Drake, the indictment was specific as to the crime charged. Willis’s indictment provided all of the elements for the offense of possession of cocaine with intent to distribute.

¶ 16. Willis’s petition to enter plea of guilty recites substantially similar language set forth in the indictment, providing:

“On or about August 7, 2002, I did willfully and unlawfully possess about 17.32 grams of cocaine, a Schedule II controlled substance, which I intended to distribute to others. This occurred in Lauderdale County, Mississippi.”

When asked by the circuit judge during the plea colloquy whether this was an accurate depiction of his involvement, Willis again answered in the affirmative. Accordingly, we find this issue is without merit.

3. Whether Willis’s was properly sentenced as a habitual offender.

¶ 17. Willis contends that the State failed to provide evidence at the sentencing hearing as to the prior convictions relied upon to classify him as a habitual offender under section 99-19-81. Specifically, Willis submits that the State’s failure to introduce “pen-packs” of his pri- or convictions impermissibly deprived him of a reasonable opportunity to challenge the prosecution’s proof. However, the sentencing hearing transcript reveals the following exchange:

PROSECUTOR: We rely on the pre-sentence investigation and rest unless of course the Court wants the — we have certified pen-packs of his prior— his three prior convictions. If the Court wants that, I can step across the hall and get them, but I assume since he’s admitted it, there’s no point in having that.
THE COURT: Yes, sir. All right. So the State rests.

¶ 18. Apparently, Willis contends that he was improperly classified as a habitual offender because the State failed to prove, not that he was sentenced, but that he in fact served, one year or more for each of the prior felonies. Our habitual-offender statute states:

Every person convicted in the state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-81.

¶ 19. The language of Mississippi’s habitual-offender statute evinces why Willis’s argument must fail. Indeed, our statute does not impose a requirement that the defendant must serve one or more years in prison for either of the previous felonies. To the contrary, the only requirement is that in order to be eligible for habitual-offender status, the offender must merely be sentenced to serve two separate terms of one or more years in prison. The habitual-offender attachment to Willis’s indictment clearly indicates that Willis has been previously convicted for three felony drug charges — two for sale and one for possession — and that he was sentenced to at least five years’ imprisonment with the MDOC for each conviction.

¶ 20. The circuit court judge properly sentenced Willis as a habitual offender. Accordingly, we find this argument is without merit.

4. Whether Willis received ineffective assistance of counsel.

¶ 21. Willis asserts that his counsel’s performance was ineffective. To prove ineffective assistance of counsel, Willis must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests on Willis to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland,, there is a strong presumption that coun sel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001) (citations omitted). To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 22. Willis’s sole argument that his counsel’s performance was ineffective rests entirely on whether his counsel should not have allowed him to enter a guilty plea in the absence of an independent evidence as to his criminal culpability. However, Willis submitted no affidavits in support of his contention. In fact, Willis does not even submit his own affidavit. In cases requesting post-conviction collateral relief, “[w]here a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 23. Willis merely offers his own conclusions of law as to his counsel’s alleged deficiencies. Willis admitted that the factual basis for the charges was correct, and he testified that his counsel reviewed the plea petition with him that he signed and submitted it to the circuit court. Pertinent parts of his plea colloquy provide:

THE COURT: Are you satisfied with the services rendered to you and on your behalf by your attorney?
DEFENDANT: Yes, sir.
THE COURT: Do you feel like your attorney has done all that any attorney could do in representing you and defending you in your case?
DEFENDANT: Yes, sir.
THE COURT: Have you read the petition to plead guilty that you have filed in your court file?
DEFENDANT: Yes, sir.
THE COURT: Have you gone over your petition with your attorney paragraph by paragraph?
DEFENDANT: Yes, sir.
THE COURT: Did your attorney explain each paragraph to you and answer any questions that you might have had?
DEFENDANT: Yes, sir.

¶ 24. We find that Willis failed to prove any instance of deficiency on the part of his counsel. Furthermore, Willis failed to show with reasonable probability that, but for his counsel’s unprofessional errors, the result of this proceeding would have been different. Accordingly, this issue is without merit.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.

LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Derrick STOKES, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00908-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Derrick Stokes, appellant, pro se.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Facing a six-count indictment, Derrick Stokes opted to plead guilty to two of those charges — exploitation of a child and gratification of lust. Consistent with the prosecution’s recommendation, the Madison County Circuit Court sentenced Stokes to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for one charge. As for the second charge, the circuit court sentenced Stokes to ten years in the custody of the MDOC with five years suspended, five years to serve, and five years on post-release supervision. Additionally, the circuit court ordered Stokes’s sentences to run consecutively.

¶ 2. On January 25, 2010, Stokes filed a motion for post-conviction relief. He claimed that: his guilty pleas were involuntary; he received ineffective assistance of counsel; he had found newly discovered evidence; and he pled guilty based on misrepresentation and duress. On March 5, 2010, the circuit court entered its opinion and order denying Stokes’s motion for post-conviction relief. Aggrieved, Stokes appeals. Stokes claims the circuit court erred when it denied his motion for post-conviction relief without conducting an evi-dentiary hearing. Stokes also claims that the circuit court erred when it accepted his guilty plea without appointing an interpreter to assist Stokes during his guilty plea. Furthermore, Stokes claims that he received ineffective assistance of counsel during his guilty plea. The State claims that Stokes’s appeal is untimely.

STANDARD OF REVIEW

¶ 3. The standard of review this Court must employ upon a review of a trial court’s denial of a petition filed pursuant to the Mississippi Uniform PosL-Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to -29 (Rev.2007) is well settled and has been stated by the Mississippi Supreme Court as follows:

When reviewing a lower court’s decision to deny a petition for post [-Jconviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised[,] the applicable standard of review is de novo. Lambert v. State, 941 So.2d 804, 807 [ (¶ 14) ] (Miss.2006) (quoting Brown v. State, 731 So.2d 595, 598 [ (¶ 6) ] (Miss.1999)); see also Bank of Miss. v. S. Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996).

Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) (quotations omitted).

ANALYSIS

¶ 4. Before addressing Stokes’s argument on appeal, it is necessary to resolve the State’s claim that Stokes’s appeal is untimely. The State bears the burden of proving that allegation. Hunt v. State, 11 So.3d 764, 766 (¶ 5) (Miss.Ct.App. 2009). The record before us indicates that the circuit court denied Stokes’s motion on March 5, 2010. Stokes had thirty days to appeal the circuit court’s decision. M.R.A.P. 4(a). In his reply brief, Stokes concedes that he was required to file a notice of appeal on or before April 5, 2010. However, the record indicates that Stokes’s notice of appeal was filed on June 4, 2010.

¶ 5. Notwithstanding the fact that his notice of appeal was not filed on or before April 5, 2010, Stokes argues that his appeal is rendered timely by application of the “prison-mailbox rule.” “Under the ‘prison[-] mailbox rule,’ ... a pro se prisoner’s motion for post-conviction relief is delivered for filing when the prisoner delivers the papers to prison authorities for mailing.” Duhart v. State, 981 So.2d 1056, 1058 (¶ 5) (Miss.Ct.App.2008). Consequently, to determine whether Stokes’s appeal was timely, it is necessary to determine when Stokes delivered his notice of appeal to prison authorities for mailing.

¶ 6. Stokes claims that he was in the infirmary on April 5, 2010. According to Stokes, a representative of the Inmates’ Legal Assistance Program (ILAP) went to the infirmary and picked up Stokes’s notice of appeal on that date. Stokes reasons that he delivered his notice of appeal for filing as of the moment that he gave his notice of appeal to that unidentified representative of the ILAP.

¶ 7. As the State points out, the documentation of Stokes’s mail transactions indicates that a “NOA” — which we presume to be an abbreviation for “notice of appeal” — was delivered for mailing to the trial court on April 8, 2010. Accordingly, Stokes’s appeal is considered to have been filed on that date. Despite Stokes’s claims to the contrary — which are entirely unsupported by anything other than statements in Stokes’s reply brief — there is simply no evidence that Stokes delivered his notice of appeal to prison authorities for mailing on or before April 5, 2010. “An appeal shall be dismissed if the notice of appeal was not timely filed pursuant to Rules 4 or 5 [of the Mississippi Rules of Appellate Procedure].” M.R.A.P. 2(a)(1).

¶ 8. Mississippi Rule of Appellate Procedure 2(c) allows this Court to suspend the thirty-day requirement of Rule 4(a) under certain circumstances. “Appellate courts do have the authority to grant a criminal defendant such an appeal if failure to perfect the appeal was through no fault of his own and if justice demands.” Davis v. State, 86 So.3d 456, 459 (¶ 9) (Miss.Ct.App.2010). Aside from his claims regarding the date that a representative of the ILAP went to the infirmary and acquired a copy of Stokes’s notice of appeal, Stokes does not raise any justification for his failure to file his notice of appeal timely. We have suspended the thirty-day requirement of Rule 4(a) where a prisoner has demonstrated that he did not receive timely notice of a trial court’s decision to deny a motion for post-conviction relief. Elliott v. State, 41 So.3d 701, 704 (¶ 8) (Miss.Ct.App.2009). Because there is no claim of good cause, much less an actual demonstration of good cause among the record, we decline to suspend the requirement of Rule 4(a) under these precise circumstances. Accordingly, we dismiss Stokes’s appeal.

¶ 9. THE APPEAL OF THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR.

      . "[W]hen an appellant's notice of appeal is stamped filed within a reasonable time after the expiration of the time allowed by Mississippi Rule of Appellate Procedure 4(a) a re-buttable presumption exists that it was timely filed.” Lewis v. State, 988 So.2d 942, 944 (¶ 5) (Miss.Ct.App.2008). In one case, this Court held that six days is a reasonable time. Jewell v. State, 946 So.2d 810, 813 (¶ 9) (Miss.Ct.App.2006). In this case, the notice of appeal was marked filed approximately two months after the expiration of the time allowed by Rule 4(a). Under the circumstances, we find that the rebuttable presumption of timeliness does not apply.


author: SHAW, Justice. MURDOCK, Justice

text:
    Ex parte Wade TUCKER et al. (In re Wade Tucker et al. v. Richard Scrushy et al.).
    1090445.
    Supreme Court of Alabama.
    Jan. 7, 2011.

      N. Christian Glenos, Hope T. Cannon, and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for petitioner HealthSouth Corporation.
    John Q. Somerville of Galloway & Som-erville, Birmingham, and John W. Haley, Michael D. Ermert, Ralph D. Cook, and Bruce J. McKee of Hare Wynn Newell & Newton, Birmingham, for petitioners Wade Tucker and the Wendell H. Cook Testamentary Trust, derivatively on behalf of and for the benefit of HealthSouth Corporation.
   SHAW, Justice.

The plaintiffs below, Wade Tucker; the Wendell H. Cook, Sr., Testamentary Trust; John P. Cook; and HealthSouth Corporation (“the petitioners”), petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order in favor of the law firm of Parkman, Adams & White, LLC (“Parkman”), quashing a subpoena seeking the production of documents and records held by Parkman reflecting payments made by or on behalf of Richard Scrushy. We grant the petition and issue the writ.

Facts and Procedural History

On June 18, 2009, the Jefferson Circuit Court entered a judgment in favor of the petitioners and against Scrushy in the amount of $2,876,108,000. The petitioners, in an attempt to collect on the judgment and to discover assets held by Scrushy, filed a notice of intent to serve a subpoena on Parkman, which had previously represented Scrushy in various criminal and civil matters. The subpoena sought production of documents and records reflecting payments to Parkman by or on behalf of Scrushy, amounts held in trust relating to Scrushy, and documents evidencing payments received by Parkman for legal services rendered to Scrushy. The subpoena explicitly excluded attorney work-product and materials protected by the attorney-client privilege.

Parkman filed a motion to quash the subpoena, asserting that the information requested was privileged, irrelevant, and immaterial and that the production of it would be unduly burdensome. The subpoena was not issued. See Rule 45(a)(3)(B), Ala. R. Civ. P. Scrushy filed no objection to the subpoena. After a hearing, the trial court entered an order granting the motion to quash the subpoena. The petitioners timely filed this petition seeking a writ of mandamus directing the trial court to vacate its order.

Standard of Review

“Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.” Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)). “Accordingly, mandamus will issue to reverse a trial court’s ruling on a discovery issue only (1) where there is a showing that the trial court clearly exceeded its discretion, and (2) where the aggrieved party does not have an adequate remedy by ordinary appeal. The petitioner has an affirmative burden to prove the existence of each of these conditions.” Ex parte Ocwen, 872 So.2d at 813.

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.” Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala.2001).

Discussion

In the trial court, Parkman objected to the subpoena, arguing that the request sought material that was privileged, personal and confidential, irrelevant, and immaterial to the collection of the plaintiffs’ judgment against Scrushy and that the production of the material would be unduly burdensome. The materials before this Court contain no substantiation for these arguments. Furthermore, Parkman has not filed an answer or brief in this Court in support of its position below or in support of the trial court’s decision.

A.

First, the petitioners argue that Parkman failed to prove in the trial court that the “financial arrangement between attorney and client is privileged, personal and confidential information.” The party asserting the attorney-client privilege bears the burden of establishing that the privilege attaches to the documents requested. Lynch v. Hamrick, 968 So.2d 11, 14 (Ala.2007); Ex parte DCH Reg’l Med. Ctr., 683 So.2d 409, 412 (Ala.1996). “The burden is on the party asserting the attorney/client privilege to establish the existence of ... facts demonstrating the claim of privileged information.” 683 So.2d at 412.

Parkman presented no argument in the trial court or in this Court demonstrating that the information was privileged. However, even if Parkman had presented an argument in support of its assertion, it is clear that, generally, “[b]ank records of receipts and disbursements in lawyers’ trust accounts are not privileged communications.” Ex parte Clark, 630 So.2d 493, 497 (Ala.Crim.App.1993). Further, the United States Court of Appeals for the Tenth Circuit has noted:

“The maintenance of checking accounts is not shown to have any relevance to any communications made in confidence between a lawyer and client for the purpose of obtaining legal advice. A client may not immunize his business transactions from discovery by the device of a lawyer’s commercial checking account.”

Securities & Exch. Comm’n v. First Sec. Bank of Utah, N.A., 447 F.2d 166, 167 (10th Cir.1971). See also 2 Charles W. Gamble, McElroy’s Alabama Evidence § 392.02 (6th ed. 2009) (“The attorney-client privilege generally does not exempt the attorney from testifying to the fact of the attorney’s employment, the name of the person so employing and the terms of the employment. This general rule includes disclosure of the fee arrangement.” (footnotes omitted)), and In re Grand Jury Proceedings in re Freeman, 708 F.2d 1571, 1575 (11th Cir.1983) (“[I]nformation regarding a fee arrangement and the identity of the person paying the fee falls outside the protection of the attorney-client privilege.”).

Parkman did not show that the information requested was privileged or that it contained any communication that could be considered protected by the attorney-client or attorney-work-product privilege. Therefore, the petitioners have demonstrated that Parkman failed to meet its burden in the trial court of showing that the requested material was protected by the attorney-client privilege. Without such a showing by Parkman, the trial court exceeded its discretion by determining that the requested information was privileged.

B.

Parkman argued in the trial court that the requested documents were irrelevant and immaterial to the collection of the judgment against Scrushy. “In order for the matter to be discoverable, the information sought must also be relevant.” Zaden v. Elkus, 881 So.2d 993, 1005 (Ala.2003). “ ‘ “Relevancy,” as used in our discovery rules, means relevant to the subject matter of the action; evidence is relevant if it affords a reasonable possibility that the information sought will lead to other evidence that will be admissible. Ex parte Dorsey Trailers, [Inc., 397 So.2d 98 (Ala.1981) ]; Drewes v. Bank of Wadley, 350 So.2d 402 (Ala.1977); 8 Wright and Miller, Federal Practice and Procedure § 2008 (1970).”’ Zaden, 881 So.2d at 1005-06 (quoting Plitt v. Griggs, 585 So.2d 1317, 1321 (Ala.1991)). Under Rule 26(b)(1), Ala. R. Civ. P., “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... including the existence, description, nature, custody, condition and location of any books [or] documents.” In Ex parte AMI West Alabama General Hospital, 582 So.2d 484, 485-86 (Ala.1991), we explained:

“[Rule 26(b)(1) ] contemplates a broad right of discovery. Discovery should be permitted if there is any likelihood that the information sought will aid the party seeking discovery in the pursuit of his claim or defense. Discovery is not limited to matters that would be admissible as evidence in the trial of the lawsuit.”

Consistent with their argument in the trial court, the petitioners argue that the subpoena to Parkman was designed to produce information that could lead the judgment creditors to assets held by Scrushy, making the requested documents relevant. There is no argument before us that such information is irrelevant or immaterial. Further, as the petitioners note, there is a reasonable possibility that the information obtained from documents indicating who or what entity paid for legal services on Scrushy’s behalf could lead the petitioners to assets held by Scrushy. Those assets could then be used to satisfy a judgment against Scrushy issued by the same court.

The petitioners’ position is bolstered by Rule 69(g), Ala. R. Civ. P., which allows a judgment creditor to “obtain discovery from any person, including the judgment debtor,” in aid of obtaining the judgment. Outside the conclusory argument that “the information sought is irrelevant and immaterial to the collection of the plaintiffs judgment against the debtor,” there is no support for Parkman’s position that the information sought is irrelevant. “A trial judge, who has broad discretion in this area, should nevertheless incline toward permitting the broadest discovery....” Ex parte AMI West Alabama Gen. Hosp., 582 So.2d at 486. We conclude that the petitioners have met their burden of establishing that the information they sought was relevant. The trial court, without any showing to the contrary by Parkman, exceeded its discretion in determining otherwise.

C.

Finally, the petitioners argue that Parkman’s contention in the trial court that it would be unduly burdensome to produce the requested information is not supported by any evidence and thus is insufficient to support quashing the subpoena. This Court has held that discovery should be allowed in full unless the opposing party can show that the production of the requested materials would be unduly burdensome. Ex parte Jacksonville State Univ., 40 So.3d 672, 676-77 (Ala.2009); see generally Ex parte Ocwen Fed. Bank, FSB, 872 So.2d at 815-16. Parkman’s argument in the trial court, in its entirety, consists of only one statement: “The request is unduly burdensome.” This statement does not show why production would be unduly burdensome, and no other evidence or explanation has been put before us. We conclude, therefore, that the petitioners have established that Parkman failed to meet its burden in the trial court; the trial court exceeded its discretion in determining that complying with the discovery request would be unduly burdensome for Parkman.

Conclusion

The petitioners have established that they are entitled to the requested discovery; Parkman failed to establish before the trial court that the subpoena was due to be quashed. The petitioners have demonstrated a clear legal right to mandamus relief; therefore, we direct the trial court to vacate the order quashing the subpoena as to Parkman.

PETITION GRANTED; WRIT ISSUED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Justice

(concurring in the result).

I am somewhat skeptical of the notion implied in the position taken by petitioners, i.e., that the financial arrangements between an attorney and client generally are not, by their very nature, privileged, personal, and confidential. Under the facts of this case, including the limited nature of the information sought and the purposes for which it has been subpoenaed, I concur in the result reached by the main opinion.

As I understand it, the nature and purpose of the discovery sought are as reflected in the “motion to reconsider” filed by the petitioners in the trial court:

“The information which was requested by [the petitioners] from Parkman ... is simply regarding the source and identity of the payments that were made to those firms by or on behalf of Scrushy and Marin, Ltd.... [Discovering the source of payments made by Scrushy could lead [the petitioners] to bank or brokerage accounts subject to garnishment that have yet to be located or identified. Additionally, discovering the identity of the payors could lead to evidence regarding an alter ego or the location of hidden assets. Finally, discovering the amount of the payments will help to determine what happened to Scrushy’s net worth, which was estimated to be approximately $300 million in 2003. At his deposition, Scrushy testified that since 2003, roughly $100 million of his net worth went to pay lawyers. [The petitioners] are entitled to test Scrushy’s contention and to trace what happened to Scrushy’s known assets since 2003.”

      . The trial court’s order also quashed a subpoena seeking production from another law firm, Leitman, Siegal, Payne & Campbell, P.C. ("Leitman”), that represented Marin Ltd., an entity in which Scrushy is the sole shareholder. The petition for the writ of mandamus originally sought relief from the order as it related to Leitman. However, while the mandamus petition was pending, Leitman agreed to produce the requested documents and, according to the petitioners, satisfied the discovery requests and rendered moot that portion of the petition relating to Lehman. We thus consider the petition only as it applies to the Parkman subpoena.

      . Rule 45(a)(3)(B) provides, in part: "Any person or party may serve an objection to the issuance of a subpoena for production, inspection, copying, testing, or sampling within ten (10) days of the service of said notice and in such event the subpoena shall not issue.”

      . Because we conclude that Parkman failed to prove that the information was privileged, we do not address the petitioners' alternative contention that the absence of any express invocation of the privilege by Scrushy is fatal to Parkman’s assertion of the privilege.


author: WOODALL, Justice.

text:
    Ex parte John Aldridge LIMERICK. (In re Pamela Washington and Robert Washington, Jr. v. John Aldridge Limerick et al.).
    1091783.
    Supreme Court of Alabama.
    Jan. 7, 2011.

      Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, and H. Edgar Howard of Ford, Howard & Cornett, P.C., Gadsden, for petitioner.
    Leon Garmon, Gadsden, for respondents.
   WOODALL, Justice.

John Aldridge Limerick petitions this Court for a writ of mandamus directing the Etowah Circuit Court to vacate its order of August 24, 2010, granting the motion for a new trial filed by Pamela Washington and her husband, Robert Washington, Jr., in the action the Wash-ingtons filed against Limerick. We grant the petition and issue the writ.

The relevant facts are procedural and undisputed. On April 13, 2006, a motor vehicle driven by Limerick collided with a vehicle driven by Pamela Washington. On March 13, 2008, the Washingtons sued Limerick in the Etowah Circuit Court. On April 23, 2010, a jury returned a verdict in favor of Limerick, and the trial court entered a judgment accordingly.

On May 21, 2010, the Washingtons filed a motion for a new trial. The trial court initially scheduled a hearing on the motion for July 30, 2010. On July 27, Limerick responded to the motion, causing the Washingtons to request additional time to respond to Limerick’s filing. The trial court then rescheduled the hearing for August 20 — the 91st day after the motion for a new trial had been filed. The hearing was held on August 20. On August 24— the 95th day after the motion had been filed — the trial court purported to grant the motion for a new trial.

On September 20, 2010, Limerick filed a motion to vacate the order granting a new trial, arguing that the motion for a new trial had been denied by operation of law on August 19, see Rule 59.1, Ala. R. Civ. P., and that, therefore, the trial court had lost jurisdiction to rule upon the Washing-tons’ motion. Thus, Limerick argued, the August 24 order was a nullity. On September 22, the trial court denied the motion to vacate, and Limerick promptly petitioned this Court for mandamus relief.

“A petition for a writ of mandamus is the proper method for obtaining review of a trial court’s authority to rule on a posttrial motion beyond the time period set forth in Rule 59.1, Ala. R. Civ. P.” Ex parte Jackson Hosp. & Clinic, Inc., 49 So.3d 1210, 1211 (Ala.2010).

Rule 59.1 provides, in pertinent part, that “[n]o postjudgment motion filed pursuant to Rule[ ] ... 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record.... ” “Any extension of this 90-day period must be of record before the 90-day period expires, because any purported extension after the ninety days is a nullity.” Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.1997).

Rule 59.1 also provides that “[a] failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.” If a motion is so denied by operation of law, “the trial judge then loses jurisdiction to rule on the motion” and is “without jurisdiction to enter any further order in [the] case after that date.” Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000). Any order entered after the trial court loses jurisdiction is void. Id.

In this case, the 90-day period referred to in Rule 59.1 expired on August 19, 2010. No consent of the parties to an extension appeared of record before the expiration of the 90-day period. Although the parties consented to an extension at the hearing held on August 20, “any purported extension after the ninety days is a nullity.” Caterpillar, 708 So.2d at 143. Consequently, the Washingtons’ motion for a new trial was denied by operation of law on August 19. After that date, the trial court had no jurisdiction to enter any further order; thus, its order of August 24 granting the Washingtons’ motion for a new trial is void, see Davidson, 782 So.2d at 241, and we must direct the trial court to vacate it.

In its order of September 22 denying Limerick’s motion to vacate, the trial court candidly admitted that it had miscalculated the 90th day when it set the motion for a new trial on August 20, the 91st day after the motion had been filed. However, “the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be ‘inadvertent [or] deliberate ... [or] any other type of failure.’ Howard v. McMillian, 480 So.2d 1251 (Ala.Civ.App.1985).” Ex parte Johnson Land Co., 561 So.2d 506, 508 (Ala.1990). “Any type of failure to rule upon ... a motion [for a new trial] during [the prescribed 90-day] period of time is adequate to bring rule 59.1 into operation.” Howard v. McMillian, 480 So.2d 1251, 1252 (Ala.Civ.App.1985).

For these reasons, we grant Limerick’s petition and issue a writ of mandamus directing the trial court to vacate its order of August 24, 2010, granting the Washing-tons’ motion for a new trial.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.


author: THOMAS, Judge.

text:
    ALABAMA STATE PERSONNEL BOARD v. Jeffery L. MILLER.
    2080895.
    Court of Civil Appeals of Alabama.
    May 28, 2010.
    Rehearing Denied Aug. 6, 2010.

      Tara S. Knee, deputy legal counsel, Alabama State Personnel Board, for appellant.
    Norbert H. Williams, Alabama State Employees Association, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of February 5, 2010, is withdrawn, and the following is substituted therefor.

On December 23, 2005, the Alabama Department of Mental Health and Mental Retardation, now known as the Department of Mental Health (“DMH”), terminated Jeffery Miller’s employment as a Mental Health Worker I for allegedly abusing a patient at the Taylor Hardin Secure Medical Facility (“Taylor Hardin”). Miller appealed the decision to the Alabama State Personnel Board (“the Board”). On May 6, 2006, a hearing officer for the Board recommended that the Board uphold the termination of Miller’s employment. On June 6, 2006, Miller filed written exceptions to the hearing officer’s recommendation with the Board and requested oral argument. On July 19, 2006, after oral argument before the Board, the Board overruled the hearing officer’s recommendation, finding that termination of Miller’s employment was too severe a penalty, and it ordered that Miller’s employment be reinstated without backpay. On September 18, 2006, Miller petitioned the Montgomery Circuit Court to review the Board’s decision, arguing that the Board had erred by failing to award Miller back-pay.

In his petition for judicial review, Miller argued that he had been denied due process and that the Board had failed to comply with certain procedural requirements of the Alabama Administrative Procedure Act (“AAPA”), § 41-22-1 et seq., Ala.Code 1975. Miller first argued that the Board had violated his right to confront and cross-examine his accuser because, he argued, the patient he was accused of abusing did not testify at the hearing before the hearing officer. Miller alleged that the failure of the patient to testify at the hearing violated the requirements of § 44-22-13(1), which states that a party shall not be denied the right to cross-examine a witness. Miller’s second argument was that the Board had erred by allowing into evidence certain hearsay statements made by the patient. Miller alleged that the admission of hearsay evidence violated the requirement in § 41-22-13(1) that “[t]he testimony of parties and witnesses shall be made under oath.” Miller’s third argument was that the Board’s refusal to allow Miller to depose the patient violated the provision in § 41-22-13(3) that provides that “[a] party may conduct cross-examination required for a full and true disclosure of the facts, except as my otherwise be limited by law.”

Following a hearing, the trial court affirmed the Board’s order. Miller filed a postjudgment motion, and, after a hearing, the trial court granted Miller’s post-judgment motion, finding that the Board had violated Miller’s constitutional right to due process and that it had failed to meet the requirements of the AAPA. The trial court reversed the Board’s decision and remanded the case to the Board for it to hold a new hearing. The Board filed a timely notice of appeal to this court.

Miller argues that this court lacks jurisdiction over this matter because the trial court remanded the case back to the Board for further proceedings; therefore, Miller argues, the Board is attempting to appeal an interlocutory order. Miller also makes this argument in a separate motion to dismiss the appeal. “ ‘A final judgment is necessary to give jurisdiction to this court on appeal.’ [Marsh v. Wittmeier, 280 Ala. 172, 173, 190 So.2d 920, 920 (1966).] A judgment is final if it disposes of all the claims and controversies between all the parties.” Richburg v. Richburg, 895 So.2d 311, 313 (Ala.Civ.App.2004). The trial court reversed the Board’s decision and remanded the case to the Board to conduct a new hearing that comports with the requirements of due process and the AAPA. See § 41-22-20(k), Ala.Code 1975 (“The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action.... ”). In its judgment reversing the Board’s decision, the trial court disposed of all issues and controversies between the parties; there are no matters that remain pending before the trial court. Therefore, the trial court’s judgment is final and this court has jurisdiction over the Board’s appeal.

The standard of review on an appeal from a circuit court’s review of an agency’s decision is well established.

“ ‘This court reviews a circuit court’s judgment without a presumption of correctness because the circuit court is in no better position to review an agency’s decision than this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994).’ Alabama Bd. of Nursing v. Peterson, 976 So.2d 1028, 1033 (Ala.Civ.App.2007). ‘[T]here is no presumption of correctness afforded to [an administrative decision maker’s] legal conclusions or its application of the law to the facts.’ Medical Licensure Comm’n of Alabama v. Herrera, 918 So.2d 918, 926 (Ala.Civ.App.2005).”

Alabama Dep’t of Pub. Safety v. Prince, 34 So.3d 700, 702-03 (Ala.Civ.App.2009).

On appeal, the Board first argues that the trial court’s judgment was against the weight of the evidence. The trial court, however, did not address the weight of the evidence in its judgment. According to its judgment, the trial court concluded that, as a matter of law, the Board had violated Miller’s rights under the AAPA and his due-process rights. Therefore, the Board’s argument that the trial court substituted its judgment for that of the Board on issues of fact is without merit.

The trial court held in essence that the Board had violated Miller’s constitutional due-process right to confront and cross-examine his accuser. The Board argues that a party in a civil matter does not have an absolute right to confront and cross-examine a witness. In addition, the Board argues that Miller had the opportunity to call the patient as a witness in the hearing before the hearing officer but that he chose not to seek testimony from the patient. “The United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial and that a primary interest secured by the Confrontation Clause is the right of cross-examination.” Ex parte Scroggins, 727 So.2d 131, 132 (Ala.1998).

“Although the Confrontation Clause is not specifically applicable in civil cases, the right of a civil litigant to cross-examine the witnesses against him has historically been considered a fundamental component of a fair trial, and it may, in some circumstances, be a required element of procedural due process.”

Smallwood v. State Dep’t of Human Res., 716 So.2d 684, 689 (Ala.Civ.App.1998); see also Willner v. Committee on Character & Fitness, 373 U.S. 96, 103, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963) (“We have emphasized in recent years that procedural due process often requires confrontation and cross-examination of those whose word deprives a person of his livelihood.”). However, the right to confront an accuser is not an absolute right in a civil matter. Smallwood, 716 So.2d at 689.

Miller argued in the trial court that he was not given the opportunity to confront and cross-examine his accuser. However, we need not decide whether Miller was denied the right to confront and cross-examine the patient in this case. Miller received notice that DMH would not be calling the patient to testify at the hearing before the hearing officer. Miller had the opportunity to subpoena the patient to testify at the hearing, but he failed to do so. Miller’s failure to subpoena the patient was a waiver of his right to confront and cross-examine his accuser. See, generally, Livingston v. State, 419 So.2d 270, 273 (Ala.Crim.App.1982) (“Appellant cannot object to the absence of the witness in the trial itself. The record is devoid of any indication that, before or during the trial, appellant attempted on his own or by process of court to obtain the presence of the witness at trial. Such lack of diligence at trial constitutes waiver of compulsory process.”); see also Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955, 958 (Ala.1980) (recognizing that the right to cross-examination may be waived if not exercised). Because Miller chose not to take advantage of the opportunity to subpoena the patient to testify at the hearing, he waived his right to confront and cross-examine his accuser. Therefore, Miller’s argument cannot form a basis for the trial court’s judgment reversing the Board’s decision.

On rehearing, Miller argues that our holding has “departed from the administrative regulations governing merit employee appeals.” Relying on Ala. Admin. Code (Pers. Bd.), Rule 670-X-5-.08(7), Miller argues that, by concluding that he waived his right to confront and cross-examine the patient by not choosing to call the patient as a witness himself, we have shifted the burden of calling prosecution witnesses to the employee. We disagree.

Rule 670-X-5-.08 governs the conduct of a hearing on dismissals and charges brought against an employee. Subsection (7) provides:

“A hearing before a Hearing Officer shall be conducted in accordance with the following order:
“(a) Reading of the dismissal action or other charges against the employee and of other pertinent information from the employee’s record. The record shall be available to all parties for reference in connection with the hearing.
“(b) Presentation of charges against the employee, including testimony of witnesses and other evidence. The employee or his counsel and the Hearing Officer may examine the witnesses.
“(c) Presentation of the employee’s answer to the charges, including testimony of his witnesses. The parties and the Hearing Officer may also examine these witnesses.
“(d) Summation by the parties, if desired by them.”

DMH presented its evidence of the charges against Miller. DMH chose not to call the patient as a witness; Miller was aware of DMH’S decision. Miller, then, if he wished to confront or cross-examine the witness, had the right to call the patient during his presentation of his answer to the charges. In no way does our conclusion that Miller waived his right to confront and cross-examine his accuser imper-missibly shift any burden to Miller, the employee, to call witnesses for DMH. Nor can we agree with Miller that, by requiring him to at least attempt to secure the testimony of the patient he wished to cross-examine, we somehow violated Rule 670-X-5-.08(7).

Rule 670-X-5-.08(7) prescribes the order of the presentation of evidence in a hearing on charges against an employee. The rule does not require the employing agency to call any particular witness; it merely requires that the employing agency, as the prosecuting entity, present its evidence to prove the charges against the employee first, before the employee must present any evidence he or she may have to answer those charges. If the employing agency chooses not to call a particular witness, the employee has the opportunity to do so, and the employee’s failure to take steps to call that witness is a waiver of the right to confront or cross-examine a witness in an administrative setting, just as it would be in any other civil setting. Thus, we reject Miller’s rehearing argument that we have shifted the burden to an employee to call prosecution witnesses and have thus violated Rule 670-X-5-.08(7).

Miller also argued in the trial court that the Board had violated his right to confront and cross-examine his accuser when the hearing officer issued a protective order denying Miller the opportunity to depose the patient. The Board, however, argues that Miller did not have an absolute right to take the patient’s deposition and that the hearing officer acted within his discretion. “[N]o rule, statute, case, or constitutional provision appears to give a party in an administrative proceeding the right to take depositions.” Ex parte Alabama Dep’t of Envtl. Mgmt., 627 So.2d 927, 930 (Ala.1993). The court further stated that “ ‘[i]t has been generally recognized that there is no basic constitutional right to pre-hearing discovery in administrative proceedings.’ ” Id. (quoting Dawson v. Cole, 485 So.2d 1164, 1168 (Ala.Civ.App.1986)). The decision whether to allow pre-hearing discovery in an administrative proceeding “is within the discretion of the [administrative agency], subject to judicial review.” Chafian v. Alabama Bd. of Chiropractic Exam’rs, 647 So.2d 759, 762 (Ala.Civ.App.1994).

Miller sent notice to the Board that he intended to depose the patient. DMH objected to the deposition notice on the following grounds: that the patient’s identity is confidential and privileged, that DMH had no authority to compel the patient to attend the deposition, and that DMH did not intend to call the patient as a witness in this matter. The hearing officer ordered that Miller could not depose the patient. Miller does not argue that the hearing officer exceeded his discretion by not allowing Miller to depose the patient. Miller argues only that the hearing officer violated his statutory and constitutional right to depose the patient. Because Miller does not have an absolute right to take depositions in an administrative proceeding, this argument has no merit and cannot form the basis for the trial court’s judgment.

The Board also argues that Miller’s argument in the trial court relating to the admission of hearsay evidence fails to support the trial court’s judgment. The Board argues on appeal that it did not rely solely on hearsay evidence in making its decision to terminate Miller’s employment at Taylor Hardin. “[H]earsay evidence of probative force may be considered in an administrative hearing. Estes v. Board of Funeral Service, 409 So.2d 803 (Ala.1982). ‘Nonetheless, there must be sufficient legal evidence to support the order of an administrative board. If founded only on hearsay or other improper evidence, the decision of a board cannot be sustained.’ Estes at 804. (Emphasis in original.)” Duncan v. State Dep’t of Human Res., 627 So.2d 427, 429 (Ala.Civ.App.1993); see also State Pers. Bd. v. State Dep’t of Mental Health & Mental Retardation, 694 So.2d 1367, 1373 (Ala.Civ.App.1996) (“Although hearsay is admissible in an administrative proceeding, it cannot provide the sole basis for an administrative ruling.”); and Estes v. Board of Funeral Serv., 409 So.2d 803, 804 (Ala.1982) (“[A]dministrative boards are not restricted to a consideration of evidence which would be legal in a court of law and may consider evidence of probative force even though it may be hearsay or otherwise illegal.”).

In the present case, the Board considered both hearsay and nonhearsay evidence in reaching its decision to terminate Miller’s employment. Dr. Patricia Pilking-ton, the physician who examined the patient, testified on direct examination at the hearing.

“Q: Do you have an opinion about the injury that you observed on the 8th in terms of what could have caused such injury?
“A: I think it’s consistent with, you know, being hit, right-handed punch, because it’s an area that’s harder to get to, it’s not an area that you usually bump, you know, like an elbow or a knee as you’re passing a table, it’s an area you have to make a concerted effort to get into here. So it would fit with a fist punch to the face.”

Dr. Pilkington’s nonhearsay testimony provided the Board with a basis for determining that the patient had been struck in the face. In addition to Dr. Pilkington’s testimony, the Board heard testimony from other witnesses regarding the incident that corroborated the patient’s allegations that Miller had hit him. Therefore, the Board did not rely solely on hearsay testimony in making its decision to reinstate Miller without backpay.

Because Miller had the opportunity to confront the patient but chose not to call the patient as a witness, he waived his right to confront and cross-examine the patient. In addition, Miller did not have an absolute right to depose the patient. Finally, the Board did not rely solely on hearsay evidence in making its decision to withhold backpay. Therefore, the trial court erred in concluding that the Board denied Miller his statutory and due-process rights. We reverse the judgment of the trial court and remand the cause to the trial court with instructions that it enter a judgment affirming the decision of the Board. Miller’s motion to dismiss is denied.

APPLICATION GRANTED; OPINION OF FEBRUARY 5, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., concurs in the result, without writing.

      . Miller brought to our attention that the administrative record was not properly designated by reference as a portion of the record on appeal by the circuit clerk. See Rule 10(b), Ala. R.App. P. ("Designated documents incapable of being legibly or otherwise photocopied, including those of unusual weight or bulk, and physical exhibits shall be made a part of the clerk’s record by reference but placed in a suitable separate container for transmittal to the appellate court.”). This court ordered proper supplementation in an order granting Miller’s application for rehearing to the extent that it concerned the fact that this court had considered matters outside the record on original submission. Thus, we have previously addressed Miller’s argument on rehearing concerning our consideration of matters outside the record, and we will consider only his substantive argument on rehearing.


author: MURDOCK, Justice. COBB, Chief Justice

text:
    Ex parte Jeffery L. MILLER. (In re Alabama State Personnel Board v. Jeffery L. Miller).
    1091609.
    Supreme Court of Alabama.
    Jan. 14, 2011.
    Norbert H. Williams, Alabama State Employees Association, Montgomery, for petitioner.
   MURDOCK, Justice.

WRIT DENIED; NO OPINION.

LYONS, WOODALL, STUART, SMITH, BOLIN, PARKER, and SHAW, JJ., concur.

COBB, C.J., dissents.

COBB, Chief Justice

(dissenting).

I respectfully dissent from the denial of this petition for a writ of certiorari. In this case, the Alabama Department of Mental Health (“the Department”) terminated petitioner Jeffery L. Miller’s employment at Taylor Hardin Secure Medical Facility based on Miller’s alleged abuse of a patient. Miller appealed to the Alabama State Personnel Board (“the Board”), which concluded that termination was too severe a penalty; the Board ordered reinstatement without backpay. Miller then appealed the Board’s decision to the Montgomery Circuit Court; that court concluded that Miller had been denied his constitutional rights to confront and to cross-examine the witness against him and remanded the cause to the Board for a new termination hearing. The Board appealed the circuit court’s decision to the Alabama Court of Civil Appeals, which reversed the decision and remanded the cause to the circuit court with instructions to affirm the Board’s decision. Alabama State Pers. Bd. v. Miller, 66 So.3d 757 (Ala.Civ.App.2010).

Miller sought certiorari review of the decision of the Court of Civil Appeals in this Court, presenting as a ground for review the issue whether the employment of a State merit-system employee may be terminated based on the unsworn testimony of an alleged victim without the employee’s being allowed the opportunity to cross-examine the victim. According to Miller’s petition, before his hearing with the Board Miller attempted to depose the alleged victim, who, Miller says, gave three inconsistent statements to officials at Taylor Hardin Secure Medical Facility and allegedly bragged about getting Miller fired based on his false allegations. The Board’s hearing officer granted the Department’s motion for a protective order to prevent Miller from deposing the alleged victim. At the hearing, the Department did not call the alleged victim to testify but instead proffered his prior statements made to Taylor Hardin officials concerning the alleged abuse. Those statements were admitted as evidence before the Board over Miller’s objections.

The opinion by the Court of Civil Appeals relied on Calvert & Marsh Coal Co. v. Pass, 393 So.2d 955, 958 (Ma.1980), and Livingston v. State, 419 So.2d 270, 273 (Aa.Crim.App.1982), to support its determination that there was no need to consider whether Miller had been denied the right to confront and to cross-examine the alleged victim because Miller had waived any such right by failing to subpoena and to call the patient as a witness himself. Both Calvert and Livingston are distinguishable from the case at hand. Calvert involved a civil defendant’s failure to cross-examine the plaintiffs witness immediately after the witness’s direct testimony. Livingston involved a criminal defendant’s failure to secure the attendance of his own defense witness. The Court of Civil Appeals cited no authority in support of the proposition that an employee whose employment has been terminated must subpoena the appointing authority’s primary or “star” witness or waive his or her right to confront and to cross-examine that witness at trial. Because the cases the Court of Civil Appeals relied on for its holding of waiver are inapt, this case presents a question of first impression that, under Aa. RApp. P., Rule 39(a)(1)(C), warrants granting the petition. Section 41-22-13(1), Aa.Code 1975, a part of the Aa-bama Administrative Procedure Act, provides that “the adversary party shall not be denied the right of cross-examination of the witness. The testimony of parties and witnesses shall be made under oath.” Further, § 41-22-13(3), Ala.Code 1975, provides that “[a] party may conduct cross-examination required for a full and true disclosure of the facts, except as may otherwise be limited by law.”

The Court of Civil Appeals held further that the Department’s decision was not based solely on hearsay because the physician who examined the alleged victim testified that the victim’s injuries were consistent with having been hit or kicked in the head. That testimony, however, does not establish that Miller was the perpetrator of the abuse. The only evidence on that point was the unsworn and un-cross-exam-ined hearsay statements of the alleged victim. I believe that this error also warrants further review by this Court.


text:
    Donnie LANEY v. John Edward GARMON.
    2090157.
    Court of Civil Appeals of Alabama.
    June 11, 2010.
    Rehearing Denied Aug. 6, 2010.
    Certiorari Quashed Jan. 14, 2011 Alabama Supreme Court 1091554.

      Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellant.
    W.N. Watson of Watson & Gillis, P.C., Fort Payne, for appellee.
   THOMAS, Judge.

Donnie Laney appeals from a judgment of the Cherokee Circuit Court determining that a 700-foot-long section of roadway (“the disputed roadway”) abutting property owned by Laney and John Edward Gar-mon is no longer a public road.

Facts and Procedural History

Laney and Garmon own adjacent parcels of real property. A roadway runs from a public highway to a point on Garmon’s property, and, for most of its length, the roadway runs across Garmon’s property; its edge forms the boundary between the two properties. In 2000, Garmon erected a gate blocking the disputed roadway. In 2005, Laney filed a complaint in the trial court requesting that the court (1) declare that the disputed roadway is a public road and enjoin Garmon from blocking it or otherwise interfering with the public’s access and (2) declare that Garmon had no right or interest in a parcel of property (“the disputed parcel of property”) that both parties claimed was included in their deeds’ descriptions. Garmon answered Laney’s complaint, alleging that the disputed roadway had been abandoned as a public road for at least 20 years and that he owned the disputed parcel of property.

The trial court held a hearing on La-ney’s complaint, at which it heard ore ten-us evidence. Several witnesses testified that at one time the disputed roadway was part of what was known as the Piedmont Cedar Bluff Road, a road regularly used by the public. The testimony from those witnesses all concerned a period occurring more than 20 years before the date of the hearing. The fact that the disputed roadway was, at some time in the past, part of a public road is not in dispute in this case.

Gary Laney, one of Laney’s brothers, testified that he regularly used the disputed roadway until Garmon blocked it in 2000; Gary testified that the disputed roadway had been accessible to the public before Garmon blocked access to it. Gary also testified that other people had used the disputed roadway to go hunting, to cut timber, or to farm. According to Gary, the last time he drove on the disputed roadway was between 4 and 10 years before the hearing. Gary further stated that everyone who had a connection with the disputed roadway had helped to maintain it; he said that he had last performed maintenance on the disputed roadway between 10 and 15 years ago.

According to Harold Laney, one of La-ney’s brothers, he owns property in the area and had lived in a house- at the beginning of the disputed roadway for several years. Harold testified that the disputed roadway is passable and that it had been used by him and other members of the public to hunt and to access pasture land. Harold stated that he had driven on the disputed roadway up until the time Gar-mon blocked access to it.

Michael Laney, one of Laney’s brothers, testified that he has owned property in the immediate vicinity of the disputed roadway since the mid 1980s. Michael stated that he had driven on the disputed roadway until the time Garmon blocked access to it. Michael further testified that the general public had used the road to access fields and to hunt.

Jimmy Singleton, the previous owner of the part of Garmon’s land over which the disputed roadway runs, testified that he had farmed the property from 1977 until 1998, when he rented it to Garmon; Gar-mon bought the property from Singleton in 2000. According to Singleton, when the county paved the road that runs from the highway to the beginning of the disputed roadway in 1977, the county had to obtain a right-of-way in order to pave the road and have the road dedicated to the public. Singleton testified that he had never considered the disputed roadway to be a public road and that, before he purchased the property, he had used the disputed roadway only with the permission of the then owner of the property. According to Singleton, he was the only person who had performed any maintenance work on the roadway during the time he had owned the property. Singleton stated that the disputed roadway was not passable in an automobile but that it was passable in a four-wheel-drive truck or a truck pulling a cattle trailer. Singleton testified that the disputed roadway had been his private road; however, he also stated that “he was not a stickler” about requiring people to get permission to use the disputed roadway and that “[i]f anyone wanted to ride up [the disputed roadway], they were welcome to drive up there.” According to Singleton, he did not erect any barriers at the end of the paved road blocking access to the disputed roadway.

Billy Ray Pierce testified that he had repaired the disputed roadway for Garmon in 2000. According to Pierce, at that time the disputed roadway was washed out and was almost impassable. Pierce testified that, although he would not have wanted to drive his truck down the disputed roadway, it was possible to drive a truck down the disputed roadway.

John Bates, the assistant county engineer for the county highway department, testified that the county did not consider the disputed roadway to be a county road and that the county had never performed any maintenance on the disputed roadway. Bates also testified that the county maps show only the paved road, not the disputed roadway. Bates could not expi’ess an opinion on the past condition of the disputed roadway.

On June 12, 2008, the trial court entered a judgment declaring that the disputed roadway is not a public road. The trial court’s judgment did not address ownership of the disputed parcel of property. Laney filed a postjudgment motion, alleging that Garmon had not presented sufficient evidence to support the trial court’s judgment determining that the disputed roadway had been abandoned for the requisite 20 years. The trial court denied Laney’s postjudgment motion. Laney appealed to the Alabama Supreme Court, and that court transferred that appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

This court dismissed Laney’s appeal as being from a nonfinal judgment because the trial court had failed to address the ownership of the disputed parcel of property. Laney v. Garmon, 25 So.3d 478, 480 (Ala.Civ.App.2009). We also noted that the county was an indispensable party to the action and that it had not been joined as a party. Laney, 25 So.3d at 480 n. 1.

Thereafter, the trial court held a hearing, at which the parties testified that La-ney owned the disputed parcel of property. The county was also added as a party to the action. The trial coui't then entered a judgment, declaring that Laney owned the disputed parcel of property and adopting and re-entering its June 12, 2008, judgment. Laney subsequently appealed to our supreme court, and that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Issues

Laney raises one issue in his appeal: whether the trial court had sufficient evidence to support its determination that the disputed roadway had been abandoned as a public road.

Standard of Review

The trial court entered its judgment after hearing ore tenus evidence.

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). “‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

Analysis

Laney argues that the evidence was insufficient to support the trial court’s determination that the disputed roadway had been abandoned.

“A public road may be abandoned in one of several ways: (1) by a formal, statutory action; (2) by nonuse for a period of 20 years; and (3) where one road replaces another, by an abandonment of the public road caused [by] nonuse for a period short of the time of prescription.”

Fox Trail Hunting Club v. McDaniel, 785 So.2d 1151, 1154 (Ala.Civ.App.2000). In this case, Garmon alleged that the disputed roadway had been abandoned because, Garmon said, it had not been used by the public for a period exceeding 20 years. Garmon bore the burden in the trial court of proving by clear and convincing evidence that the disputed roadway is no longer a public road. Autry v. Clarke County, 599 So.2d 590, 591 (Ala.1992).

The testimony in this case shows that before Garmon blocked access to the disputed roadway in 2000, it was infrequently used, it was in a bad state of repair, and it was not maintained by the county. However, even the combination of those facts is insufficient to prove by clear and convincing evidence that the disputed roadway had been abandoned as a public road. See Ayers v. Stidham, 260 Ala. 390, 392, 71 So.2d 95, 97 (1954). The Alabama Supreme Court has stated that

“the law lays down no fixed rule as to the quantum of travel over the road essential to impress upon it a public use. Although the chief user be a few families having special need therefor, this does not of necessity stamp it as a private way. It is the character rather than the quantum of use that controls. It seems clear enough that the general public, including these with special interests, have continuously used the road without let or hindrance as they had occasion so to do, and such combined use has been so constant and continuous as to mark at all times a well-defined highway for ve-hieles and pedestrians. As to public user this is sufficient.”

Still v. Lovelady, 218 Ala. 19, 20, 117 So. 481, 482 (1928). Thus, the fact that the disputed roadway was infrequently used and generally used only by those who had a special need to do so by virtue of owning nearby land, or desiring to hunt or cut timber on nearby land, is insufficient to prove that the disputed roadway is a private road. See Fox Trail, 785 So.2d at 1154 (holding that a road remained a public road even though its use had decreased substantially and even though it was used only by local landowners, hunters, and timber harvesters). We also note that Singleton testified that, when he owned the property over which the disputed roadway runs, access to the disputed roadway had not been blocked and anyone who so wished could drive on the disputed roadway. A public road is not considered abandoned “so long as it is open for use by the public generally and is being used by those who desire, or have the occasion to use it.” Auerbach v. Parker, 544 So.2d 943, 946 (Ala.1989).

The fact that the county did not consider the disputed roadway to be a county road and that it did not maintain the disputed roadway is also insufficient to prove abandonment. “[I]t is not essential to the status of a public road that it be maintained by the county in which the road is located.” Fox Trail, 785 So.2d at 1154. Similarly, the fact that the disputed roadway was in a state of disrepair is also insufficient to prove that it had been abandoned. Ayers, supra; Fox Trail, supra. Therefore, the evidence before the trial court indicating that the disputed roadway had been infrequently used, that is had been in bad repair, and that it had not been maintained by the county was insufficient to prove by clear and convincing evidence that the disputed roadway had been abandoned as a public road.

Conclusion

Because the evidence was insufficient to prove that the disputed roadway is no longer a public road, the judgment of the trial court is reversed insofar as it determined that the disputed roadway had been abandoned as a public road, and the cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

BRYAN, J., concurs in the result, without writing.