author: PITTMAN, Judge. MOORE, Judge,

text:
    Ex parte David YOUNG and Debbie Young. (In re Kathy Ledford v. David Young and Debbie Young).
    2100579.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2011.
    Christopher D. Albert, Weaver, for petitioners.
    John A. Tinney, Roanoke, for respondent.
   PITTMAN, Judge.

This mandamus petition challenges an order entered by the Randolph Circuit Court, entered on remand from this court’s decision in Young v. Ledford, 37 So.3d 832 (Ala.Civ.App.2009), setting a second trial in the case. Much of the factual and legal background necessary to an understanding of the mandamus petition was summarized in this court’s opinion in the previous appeal:

“Kathy Ledford, who with her husband Roger owns a lot in Randolph County upon which a vacation house is located, filed an action in the trial court seeking a judgment declaring that she and her husband have the right to remove a pine tree that, according to a recent survey, lies on the boundary between Ledford’s lot and a lot owned by David Young and Debbie Young. Led-ford alleged that the tree, which is located slightly over 10 feet from Ledford’s house, ‘poses a danger and threat to’

that house and that ‘[a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants.’ The Youngs admitted the location of the tree, but they averred that the tree was ‘a true boundary line tree’ and contended that it could not ‘be harmed or cut by’ landowners on either side of the boundary line. After a brief ore tenus proceeding, during which Led-ford, her husband, the Youngs, and a forester retained by the Youngs all gave testimony, the trial court entered a judgment declaring that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot. In pertinent part, the trial court opined:

“‘[Ledford] and her husband wish to cut the tree because they are afraid that the tree will fall on their home. If the tree falls on their home, since the tree is located so close to it, the home would likely be severely damaged. Further, and perhaps more importantly, if [Ledford and her husband] were asleep or even in their home and the tree fell on it, [they] or anyone located within the home could suffer serious injury or death.
“ ‘Under Alabama law, a land owner may remove any roots or limbs that protrude onto his property without consequence, even if the tree that the roots and limbs are attached to are located on another’s property. Further, a land owner has a right to remove any trees or other growth on his property up to the property line, and this right extends to the center of the earth and into the sky. Thus, without recourse or consequence, [Ledford] could cut into the tree to the property line and then cut from that point to the center of the earth and into the sky. Because 19 inches of the tree’s 28-inch diameter measurement is located on [Ledford’s] side of the property line, [Ledford], therefore, could completely remove more than one half of the tree up to her property line.
“ ‘Since [Ledford] unquestionably has the right to remove any portion of the tree that is located on her side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [she] should be allowed to completely remove the tree to ensure that her property and the health and well being of anyone located in her home are protected.’ ”

37 So.3d at 832-33. We reversed that judgment, noting that, “[i]n the special case of a boundary-line tree, ... each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that Ledford, contrary to the trial court’s judgment, could not properly “ ‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky’ ” without incurring liability to the Youngs. Id. at 835. However, Presiding Judge Thompson noted in his special concurrence (joined by Judge Moore) that the action had been “pleaded, tried, and determined on the basis of Kathy Ledford’s contention that she was entitled to remove the boundary-line tree at issue merely because its trunk is located, in part, on her property” and that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. Id. at 835-36 (Thompson, P.J., concurring specially, joined by Moore, J.). Further, Judge Bryan concurred in the result and noted that had the record contained evidence indicating that the tree at issue “posed a danger to Kathy Ledford’s house,” he would have voted to affirm the judgment under review. Id. at 836 (Bryan, J., concurring in the result).

After this court’s certificate of judgment had been issued, Kathy Ledford filed a motion requesting that the trial court “set another hearing to consider all and additional evidence consistent with” this court’s opinion in the previous appeal. David Young and Debbie Young filed a response objecting to Ledford’s motion; they also moved for the entry of a judgment in their favor based upon this court’s opinion in the previous appeal. On March 16, 2011, the trial court set the cause for a trial to take place on May 12, 2011; however, on March 29, 2011, the Youngs timely filed a mandamus petition challenging the propriety of the trial court’s March 16, 2011, order (see generally Rule 21(a), Ala. R.App. P., concerning timeliness of petitions for extraordinary writs).

A writ of mandamus will issue “ ‘ “ ‘only when there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.’ ” ’ ” Ex parte Queen, 959 So.2d 620, 621 (Ala.2006) (quoting Ex parte McWilliams, 812 So.2d 318, 321 (Ala.2001), quoting in turn Ex parte Carter, 807 So.2d 534, 536 (Ala.2001), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). Although the appeal from the trial court’s earlier judgment was not within this court’s appellate jurisdiction except by virtue of its having been transferred pursuant to Ala.Code 1975, § 12-2-7(6), we have jurisdiction to consider the Youngs’ petition. Ex parte Queen, 959 So.2d at 621 (noting that mandamus “is the proper method by which to bring before an appellate couit the question whether the trial court, on remand, has complied with the appellate courts mandate ” (emphasis added)).

The pertinent material question raised by the mandamus petition may succinctly be stated: Did the trial court act within its discretion in electing to hold a second trial in this matter? The Youngs contend that an appellate court’s decision is final as to all matters before it and that a trial court, after an initial appeal, may not hold another hearing and take additional testimony without leave of the pertinent appellate court. Although we have no quarrel with that general proposition of law, a careful review of our decision in the previous appeal in this case indicates that only the particular issue that had formed the basis of the trial court’s judgment was addressed, ie., whether Ledford could unilaterally remove the boundary-line tree simply because the majority of it was located on Ledford’s side of the common boundary of the parties’ properties. Based upon that conclusion, in the words of our former opinion, “we ... reverse[d] the trial court’s judgment permitting Led-ford and her husband to unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.” 37 So.3d at 835 (emphasis added). In particular, the special writings in the previous appeal make clear that neither this court nor the tidal court, because of the limited scope of the trial court’s previous judgment, has ruled upon the issues regarding whether the boundary-line tree poses a danger to Ledford’s home or amounts to a nuisance; further evidence adduced in a second trial as to those issues, among other issues not resolved by this court’s previous opinion, may well bear upon the ultimate factual and legal determinations to be made in this case.

As Ledford correctly notes in her answer to the Youngs’ petition, the questions we addressed in the previous appeal in this case were unquestionably of first impression, and the existence of a “recently announced legal standard” that “requires further testimony tailored to assure a meaningful basis” for a trial court’s judgment on remand (Ex parte Queen, 959 So.2d at 623) will rightly warrant affording that court some measure of discretion in conducting “further proceedings” as mandated by this court. In our view, at this point in the case, issuance of a writ of mandamus to control the exercise of that discretion would be premature. See Fields v. State ex rel. Jones, 534 So.2d 615, 616 (Ala.Civ.App.1987) (“mandamus, although it will lie to compel an exercise of discretion, will not lie to compel the exercise of discretion in a particular manner absent an abuse of that discretion”). That said, we would be remiss in failing to point out that our decision in the previous appeal now constitutes the “law of the case” as to the issues addressed therein, see Erbe v. Eady, 447 So.2d 778, 779 (Ala.Civ.App.1984), and it remains for the trial court and the parties’ legal advocates to ensure that the new trial ordered by the trial court does not veer into areas of inquiry foreclosed by our previous decision.

The Youngs’ mandamus petition is denied.

PETITION DENIED.

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

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the main opinion’s denial of the petition for a writ of mandamus filed by David Young and his wife, Debbie Young. In the complaint filed in the trial court, Kathy Ledford (“Ledford”) alleged facts that would support a claim of nuisance. See, e.g., Boyce v. Cassese, 941 So.2d 932, 946 (Ala.2006) (quoting Borland v. Sanders Lead Co., 369 So.2d 523, 529 (Ala.1979)) (holding that “ ‘the law of nuisance applies’ ” where there is an “ ‘intrusion ... to the interest in use and enjoyment of property’ ”). Specifically, Ledford alleged:

“The pine tree poses a danger and threat to [our] home. The tree is located slightly over 10 feet from [our] home. A strong wind against the tree could cause it to fall on the home and could cause damage to the home as well as serious injury to any occupants of the home.”

At the trial, there was evidence presented both in support of and in opposition to Ledford’s nuisance allegation. Specifically, Ledford testified regarding the danger that she asserted the tree posed to her property and to persons on her property. Ledford’s husband, Roger, testified regarding the proximity of the tree to their home, the size of the tree, previous damage to the tree, the present appearance of the tree, and the danger that he asserted the tree posed to their property and persons on their property. Debbie Young testified regarding previous damage to the tree, the steps she had taken to save the tree, and her observance of the health of the tree since that time. The Youngs also called Jim Morris, a registered forester, as an expert witness. Morris testified regarding the health of the tree, previous damage to the tree, the proximity of the tree to the Led-fords’ house, the likelihood that the tree would fall on the Ledfords’ house, and whether he would have a problem with the tree remaining on the property if he were in the position of the Ledfords. There were also various photographs of the tree entered into evidence.

Because the issue whether the pine tree was a nuisance has already been pleaded, and because the trial court has already heard evidence on that issue, the trial court should decide that issue without conducting a second trial. See, e.g., Ex parte Queen, 959 So.2d 620, 622-23 (Ala.2006) (holding that the trial court had erred in taking additional evidence on remand and noting that the parties had “already had a full opportunity to offer evidence” regarding the issue to be decided on remand). Accordingly, I would grant the Youngs’ petition for a writ of mandamus and direct the trial court to enter a judgment based on the existing record.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Ex parte Clark Daniel MONTGOMERY. (In re Cynthia C. Montgomery v. Clark Daniel Montgomery).
    2100670.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2011.

      Eric B. Funderburk of Law Offices of Funderburk & Lane, Phenix City, for petitioner.
    Melissa B. Thomas, Phenix City, for respondent.
   BRYAN, Judge.

Clark Daniel Montgomery (“the husband”) filed a petition for a writ of mandamus seeking relief from a Qualified Domestic Relations Order (“QDRO”) entered by the Russell Circuit Court. We grant the petition in part and deny it in part.

Procedural History of Prior Appeal

This is the second time that the husband and Cynthia C. Montgomery (“the wife”) have appeared before this court. We set forth the pertinent procedural history of this case in Montgomery v. Montgomery, 37 So.3d 168 (Ala.Civ.App.2009), as follows:

“The parties were married on July 17, 1975, and they were divorced by the trial court on May 11, 1999. [The divorce action was assigned case no. DR-99-138.] The parties executed a written agreement regarding the division of their marital property on April 5, 1999, and the divorce judgment incorporated the parties’ written agreement. The parties’ agreement provided, among other things, that the wife would receive an award of the husband’s retirement benefits, as follows:
“‘9. RETIREMENT: The Wife is hereby awarded 35% of the Husband’s retirement excluding his Social Security. Said award shall include any increases that the husband may get prior to and following the time he begins to draw his retirement benefits.
“10. 401K FUND: The Wife is hereby awarded $15,000.00 of the husband’s 401K fund.... This decree meets the definition of a [QDRO] as specified in ERISA Section 206(d) and Internal Revenue Code 414(p).... ’
“The record contains a QDRO signed and entered by the trial court on May 13, 1999, regarding the retirement benefits set forth in paragraph 10 of the parties’ agreement. Neither the parties’ written agreement nor the divorce judgment provided for a QDRO to be entered to implement the provision set forth in paragraph 9 of the parties’ agreement.
“On May 11, 2005, at the request of the wife, [in case no. DR-99-138,] the trial court entered a QDRO regarding the payment of the retirement benefits set forth in paragraph 9 of the parties’ agreement (‘QDRO #2’). QDRO #2 stated, in pertinent part:
“ ‘[T]hat [the wife] is entitled to receive a benefit from [the Basic Retirement Plan for Employees of Army & Air Force Exchange Service] of a benefit payable to [the wife] that is equivalent in value to 35% of [the husband’s] accrued benefit due to benefit service between July 17, 1975 and January 1, 1999, commencing on the earliest date on which [the husband] could commence receiving benefits if [the husband] separated from service.’
“(Emphasis added.) The husband did not object to the entry of QDRO #2, despite the fact that he apparently never received formal notice of the wife’s request for the trial court to enter QDRO #2....
“On December 14, 2007, two and one-half years after the trial court had entered QDRO # 2, the wife filed a motion to amend QDRO #2. She stated that QDRO #2 erroneously stated that the ‘benefit service dates’ were between July 17, 1975, and January 1, 1999. The wife argued that, pursuant to paragraph 9 of the parties’ agreement as incorporated into the divorce judgment, she was entitled to 35% of the husband’s retirement benefits from July 17, 1975, until the date of the husband’s retirement, including any increases he received ‘prior to and following the time he began to receive retirement benefits.’ The wife’s motion included a certifícate of service stating that the motion had been mailed to the husband at an address in Texas. It was undisputed that the wife had not paid any filing fees related to the proceeding resulting in QDRO #2 or the proceeding seeking to amend QDRO #2.
“On February 8, 2008, [in case no. DR-99-138,] the trial court ‘set aside’ QDRO #2 and entered an amended QDRO (‘QDRO # 3’), which stated that the wife
“ ‘is entitled to receive a benefit from [the Basic Retirement Plan for Employees of Army & Air Force Exchange Service] of a benefit payable to [the husband] that is equivalent in value to 35% of the [husband’s] accrued benefit due to benefit service between July 17, 1975 and the date of the [husband’s] retirement, commencing on the earliest date on which the [husband] could commence receiving benefits if the [husband] separated from service.’
“(Emphasis added.)
“On February 26, 2008, the husband filed a motion to set aside QDRO #3....
“On May 16, 2008, the wife initiated a separate actionf, which was assigned case no. DR-99-138.01,] requesting that the trial court issue a rule nisi and hold the husband in civil and criminal contempt for failing to pay the wife 35% of the retirement benefits that he had been receiving, in violation of the divorce judgment entered by the trial court in 1999.
“On December 31, 2008, the trial court entered an order stating that QDRO # 2 ‘contained a misstatement of the agreement of the parties.’ The trial court also ruled on the wife’s petition for a rule nisi and held that the husband was not in contempt for failure to pay retirement benefits to the wife. The trial court ordered that QDRO # 3 was ‘in full force and effect.’ The husband and the wife filed timely notices of appeal to this court.’
“On appeal the husband argue[d] that the trial court did not have jurisdiction to enter QDRO # 2 or QDRO # 3 because he was not properly served with summonses or notice of the wife’s petitions and because the wife did not pay new filing fees.... The wife cross-appeal[ed] and argue[d] that the trial court erred in concluding that the husband was not in contempt without conducting an evidentiary hearing.”

37 So.3d at 169-72 (footnotes omitted).

Regarding the husband’s appeal, which addressed issues in case no. DR-99-138, we concluded that “a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the divorce judgment effective.” Id. at 172 (citing Jardine v. Jardine, 918 So.2d 127, 131-32 (Ala.Civ.App.2005)). However, we further concluded that the trial court did not have subject-matter jurisdiction to enter QDRO # 2 or QDRO # 3 because the filing of a QDRO, under the circumstances presented, required that the wife file a separate action, pay an appropriate filing fee, and give proper notice of her requests for a QDRO to the husband because she was seeking to implement or enforce the divorce judgment through a QDRO. Id. at 172. We held that the trial court’s judgment of May 11, 2005, which purported to enter QDRO # 2 was void, and that the trial court’s judgment of February 8, 2008, purporting to enter QDRO # 3 was void, and we dismissed the husband’s appeal with instructions to the trial court to vacate the orders entered on May 11, 2005, and February 8, 2008. Id. at 173.

Regarding the wife’s cross-appeal, which addressed issues in case no. DR-99-138.01, we reversed the judgment of the trial court that denied the wife’s petition for a rule nisi “[bjecause the trial court heard no evidence regarding the allegations set forth in the wife’s petition for a rule nisi and because there is no evidence in the record to support the trial court’s finding that the husband was not in contempt. ...” Id. at 174. We remanded the cause with instructions to the trial court to conduct an evidentiary hearing on the wife’s petition for a rule nisi. Id. This court issued a certifícate of judgment on November 18, 2009.

Procedural History of Present Case

The husband filed this petition for a writ of mandamus based on events that occurred after his previous appeal was dismissed and the case was returned to the trial court on remand.

The materials provided by the parties indicate that, on remand, the wife filed motions to compel the husband to respond to discovery requests in the contempt action (case no. DR-99-138.01).

On or about October 11, 2010, the wife, in case no. DR-99-138.01, filed a motion for implementation of a QDRO. The wife alleged that the husband was retired and drawing benefits but that she had not been receiving the portion of the husband’s retirement benefits that she had been awarded pursuant to paragraph nine of the agreement incorporated into the parties’ divorce judgment (hereinafter referred to as “paragraph nine of the divorce judgment”), which is quoted above in the excerpt from Montgomery, supra. The wife requested that the trial court enter a QDRO so that her portion of the husband’s retirement benefits would be paid directly to her. The wife attached a proposed QDRO as an exhibit to her motion.

On October 14, 2010, the husband filed a motion to dismiss the wife’s motion for implementation of a QDRO. The husband alleged that the trial court did not have jurisdiction to alter or amend the QDRO that was previously entered (presumably QDRO # 3) because this court had concluded that that QDRO was void; that the wife’s motion for implementation of a QDRO was an attempt to amend a prior QDRO; and that the wife must file a petition to modify the parties’ divorce judgment, pay the appropriate filing fees, and serve the husband with the petition. The husband stated in his motion to dismiss that the motion was filed “without submitting to the jurisdiction of [the trial court] and without waiving the right to assert the defense that the [husband] has not been served by proper process as required by law.”

On October 27, 2010, the wife filed a motion for a hearing on the pending motions. Judge George Greene, the judge who had been assigned the case, set a hearing on all pending motions for January 2011, but that hearing was continued until March 16, 2011. On March 16, 2011, another judge, Judge Albert Johnson, who was the Presiding Judge of the Russell Circuit Court, entered an order that stated:

“It is hereby the finding of this Court, and in accordance with Rule 60(a), Alabama Rules of Civil Procedure, that on or about October 28, 2010, a [QDRO] was entered by Honorable George R. Greene.
“It has been determined that, due to clerical error, said order was filed as an exhibit to a motion. It has been further determined that no entry was made into the Alabama Statewide Judicial Information System and copies were not forwarded to the parties or their attorneys.
“Therefore, it is the Order of this Court that the [QDRO] signed by George R. Greene, Circuit Judge, on October 28, 2010, shall be recognized and entered this date. The circuit clerk is further directed to forward copies to all parties.”

The materials provided by the parties indicate that a QDRO was entered in case no. DR-99-138.01 on March 16, 2011, (although it was dated October 28, 2010) that addressed the wife’s receipt of a portion of the husband’s retirement benefits. The QDRO also stated that “all previous [QDROs] entered in this matter are null and void.”

On March 17, 2011, the husband filed a motion to vacate the March 16, 2011, order and a motion for a hearing on the trial court’s jurisdiction to enter a QDRO. The husband alleged that the trial court had not vacated the QDROs entered in May 2005 and February 2008 as was required per the instructions from this court in Montgomery, supra, and that the wife’s request for a QDRO through her petition for a rule nisi did not properly invoke the jurisdiction of the trial court and did not properly put the husband on notice of a proposed “modification.” The husband further alleged that he had been denied due process of law by the trial court’s failure to conduct a hearing on his motion to dismiss. On the same day, the husband filed a motion to stay all proceedings in case no. DR-99-138.01.

On March 21, 2011, the husband filed a motion for a new trial alleging that the trial court’s March 16, 2011, order was a final judgment on all pending motions and requesting a new trial, pursuant to Rule 59, Ala. R. Civ. P., on the wife’s motion for implementation of a QDRO. On the same day, the husband filed a motion to vacate that portion of the trial court’s March 16, 2011, order that required him to comply with the wife’s discovery requests; he alleged that since a final judgment had been entered that did not find him in contempt, the wife’s discovery requests were moot.

On March 22, 2011, Judge Johnson entered an order that denied the husband’s motion to dismiss; that granted the wife’s motion to compel and her motion for a court order requesting release of information; and that reserved for a final hearing a ruling on the wife’s petition for a rule nisi. On April 15, 2011, Judge Johnson denied the motions filed by the husband on March 17, and March 21, 2011. The husband filed a petition for a writ of mandamus in this court on April 20, 2011.

Relief Requested

The husband contends that a writ of mandamus is due to be issued because Judge Johnson did not have the authority to enter any orders in case no. DR-99-138.01 and that, therefore, those orders are due to be vacated. Alternatively, the husband argues that the writ of mandamus should issue because the QDRO rendered by Judge Greene in October 2010 and entered by order of Judge Johnson in March 2011 is void for lack of subject-matter jurisdiction.

Finality of the QDRO Entered on March 16, 2011

The husband filed a petition for a writ of mandamus seeking an order from this court directing the Russell Circuit Court to vacate the QDRO entered on March 16, 2011, for the reasons stated above. First, however, we must determine whether a petition for a writ of mandamus or an appeal is the proper means of requesting this relief.

The husband argues that the March 16, 2011, order issued by Judge Johnson ordering the entry of the QDRO rendered by Judge Greene in October 2010 was a final judgment because, he asserts, by its silence regarding the pending contempt issue, the March 16, 2011, order implicitly denied the wife’s pending petition for a rule nisi. See Faellaci v. Faellaci, 67 So.3d 923, 925 (Ala.Civ.App.2011) (concluding that the trial court’s judgment, which did not explicitly rule on a pending petition for a rule nisi, “sufficiently indicate[d] an intention to conclusively rule on the wife’s pending petition for a rule nisi”).

We cannot agree that the trial court’s March 16, 2011, order indicated an intention to rule on the wife’s pending petition for a rule nisi. The March 16, 2011, order did nothing more than order the entry of a QDRO that had already been rendei’ed into the State Judicial Information System. See Rule 58(a) and (c), Ala. R. Civ. P. Nothing in the order suggests that the entry of a QDRO was meant as an implicit ruling on the wife’s petition for a rule nisi. Moreover, as of March 16, 2011, the trial court still had not conducted a hearing on the wife’s petition for a rule nisi, as required by this court in Montgomery, supra, and the trial court, on March 22, 2011, specifically reserved for a final hearing a ruling on the wife’s petition for a rule nisi.

In Romer v. Romer, 44 So.3d 514, 518 (Ala.Civ.App.2009), this court discussed whether the entry of a QDRO was a final judgment capable of supporting an appeal. In that case, a judgment of divorce was entered on March 26, 2008, and we held that the divorce judgment was final “in spite of the fact that a portion of the judgment required the subsequent entry of a QDRO for implementation.” Id. We also held that a QDRO entered on September 24, 2008, “likewise constituted a final judgment because it resolved all the outstanding issues between the parties related to the implementation of the trial court’s divorce judgment.” Id. We further concluded that a judgment setting aside the September 2008 QDRO was not capable of supporting an appeal, “because [it] effectively reopened the issue of implementation of the trial court’s judgment,” but that a subsequent judgment issuing a separate QDRO was a final judgment capable of supporting an appeal for the same reasons that the September 2008 QDRO had constituted a final judgment. Id. at 518-19.

Considering that the wife’s motion for implementation was filed as part of her action initiated by the filing of a petition for a rule nisi, which had not been ruled on at time the March 2011 QDRO was entered, we cannot conclude, in this particular case, that the QDRO entered on March 16, 2011, “resolved all the outstanding issues between the parties” so that the March 2011 QDRO was a final judgment capable of supporting an appeal. Romer, 44 So.3d at 518. The entry of a QDRO to implement the award of retirement benefits to the wife was a separate but related part of the wife’s contempt action. Therefore, we conclude that the husband’s petition for a writ of mandamus is properly before this court.

Standard of Review
‘Mandamus is an extraordinary remedy and will be granted only where there is “(1) a clear legal right in the petitioner 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) properly invoked jurisdiction of the court.” ’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala.2004).”

Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala.2004).

Discussion

In his petition, the husband first contends that all orders issued by Judge Johnson in case no. DR-99-138.01 are void because Judge Johnson did not have the authority to enter those orders because case no. DR-99-138.01 was assigned to Judge Greene and there is no indication that the case was ever formally reassigned to Judge Johnson. In the alternative, the husband argues that even if Judge Johnson had the authority as the Presiding Judge of the Russell Circuit Court to direct the clerk of the Russell Circuit Court to enter the QDRO rendered by Judge Greene, he had no authority to enter any other orders in case no. DR-99-138.01. In response, the wife argues, among other things, that the husband failed to raise this argument at any time before the trial court and thus has waived review of this issue by this court. See Ex parte State Farm Fire & Cas. Co., 794 So.2d 368, 377 (Ala.2001) (citing Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992)) (concluding that the petitioner, who sought the issuance of a writ of mandamus, had waived “any procedural irregularity” related to the respondent’s failure to attach a “privilege log” pursuant to Rule 45(d)(2), Ala. R. Civ. P., by failing to raise the issue in the trial court).

In response to the wife’s argument, the husband contends that this court should consider “mitigating circumstances” that prevented him from raising this issue below, i.e., that he was unaware that the case had not been formally reassigned to Judge Johnson until after Judge Johnson had entered the April 15, 2011, order. The husband argues that, by that time, the time for filing a petition for a writ of mandamus had already begun to run. In support of his argument that this court should consider this “mitigating circumstance,” the husband cites Ex parte Jim Walter Homes, Inc., 776 So.2d 76, 78-79 (Ala.2000), in which our supreme court held that the petitioners’ delay in filing an objection to the assignment of a trial judge in their case was not tantamount to a waiver of the objection because the petitioners objected to the assignment “the first time [the trial judge] conducted a proceeding in the case,” among other reasons. The present case is distinguishable from Ex parte Jim Walter Homes, Inc., supra, because there is no indication in the materials presented to this court that the husband, at any time while this case was pending before the trial court, argued that Judge Johnson acted outside the scope of his authority by entering any order in case no. DR-99-138.01. Accordingly, because the husband never argued to the trial court that all orders entered by Judge Johnson were void because he did not have the authority to enter the orders, we conclude that the husband has waived consideration of that issue. See Ex parte State Farm Fire & Cas. Co., supra; and Andrews, supra.

The husband also contends, in the alternative, that the QDRO entered on March 16, 2011, is due to be vacated because (1) the wife’s motion to implement a QDRO did not properly invoke the subject-matter jurisdiction of the trial court, (2) because his due-process rights were violated, and (3) because the trial court failed to comply with the express instructions given by this court in Montgomery, supra.

Initially, the husband contends that the wife, by merely filing a motion to implement a QDRO in her contempt action, failed to invoke the subject-matter jurisdiction of the trial court to enter a QDRO. According to the husband, the wife was required to file a separate modification action, or an amendment to her rule nisi petition, in order to obtain a QDRO that modified paragraph nine of the parties’ divorce judgment. The husband’s argument is based on the premise that the entry of a QDRO would necessarily result in a modification of the divorce judgment. However, as we stated in Montgomery, supra, “the entry of a QDRO, in and of itself, is not a modification of a property division.” 37 So.3d at 173 n. 7. So long as the trial court does nothing more than “implement the division of property as stated in the parties’ divorce judgment,” id., then the entry of a QDRO will not be considered a modification of the property-division provisions in the parties’ divorce judgment.

Accordingly, we conclude that the wife’s request for the entry of a QDRO was not, in and of itself, a request to modify the divorce judgment. See Montgomery, supra. We further conclude that the wife’s motion for implementation of a QDRO was cognizable as a request for relief in a pending contempt action. In Montgomery, we held that the wife was required to file a separate action to obtain a QDRO because she was seeking a method of enforcing or implementing paragraph nine of the divorce judgment. A petition for a rule nisi seeking to hold a party in contempt for failure to abide by the provisions of an existing divorce judgment is a method of enforcing compliance with the existing divorce judgment. See generally Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007); and Committee Comments to Rule 70A, Ala. R. Civ. P. (noting that petitions for contempt are routinely used in domestic-relations actions to enforce compliance with an existing judgment). Similarly, the entry of a QDRO is a method of enforcing or implementing the terms of an existing divorce judgment. See Montgomery, 37 So.3d at 172 (“We conclude that a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the divorce judgment effective.”). Thus, we cannot conclude that the trial court did not have subject-matter jurisdiction to rule on a motion requesting the entry of a QDRO to implement a provision of the divorce judgment as part of an existing contempt action.

The husband next argues that the March 2011 QDRO is void because he was denied due process of law because the trial court denied his motion to dismiss without conducting a hearing on his motion. The husband contends that Judge Johnson, at the March 16, 2011, hearing, held that Judge Greene had implicitly denied his motion to dismiss by rendering a QDRO and, thus, that there was no hearing on his motion to dismiss. A review of the husband’s October 14, 2010, motion to dismiss reveals that the husband did not request a hearing on his motion, and the materials provided to this court indicate that the March 16, 2011, hearing was scheduled at the wife’s request, so that her motions to compel and her motion for implementation could be heard. Rule 78, Ala. R. Civ. P., states that, “unless there is a request for oral hearing, the court may enter an order denying a motion to dismiss without oral hearing.” Accordingly, because the husband did not request an oral hearing on his motion to dismiss the wife’s motion for implementation of a QDRO, we cannot conclude that the husband’s due-process rights were violated when the trial court denied his motion to dismiss without first conducting a hearing. See Blanton v. Blanton, 463 So.2d 158, 161 (Ala.Civ.App.1984) (concluding that the husband was not denied due process when the trial court denied his motion to dismiss without a hearing because the husband did not request an oral hearing).

However, the husband further argues that because he entered only a limited appearance to challenge the trial court’s jurisdiction to consider the wife’s motion for implementation of a QDRO, and because the trial court denied his motion to dismiss the wife’s motion for implementation of a QDRO at the same time that it granted the wife’s motion for implementation of a QDRO, his procedural due-process rights were violated because he was not afforded an opportunity to respond to the wife’s motion for implementation of a QDRO or to be heard on a challenge to the wife’s proposed QDRO before it was entered. The husband contends that the QDRO entered on March 16, 2011, imper-missibly modified the parties’ divorce judgment and deprived him of his property without due process of law. See generally United States Constitution, Amend. XIV, § 1 (“No state shall ... deprive any person of life, liberty, or property, without due process of law.”); and Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)) (“ ‘[D]ue process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’ ” (emphasis omitted)).

According to the materials provided to this court, after the trial court entered the QDRO on March 16, 2011, the husband filed several motions, with supporting briefs, requesting a hearing and challenging the substance of the QDRO entered, alleging that it had modified paragraph nine of the divorce judgment by expanding the wife’s award of his retirement benefits. There is no indication that the trial court conducted a hearing on any of the husband’s substantive challenges to the QDRO.

Accordingly, we agree that the husband’s due-process rights were violated because he was not afforded the opportunity to answer and be heard on the wife’s request for implementation of a QDRO. A judgment or order that is entered in violation of principles of procedural due process is void. See Ex parte Third Generation, Inc., 855 So.2d 489, 492 (Ala.2003) (discussing Neal, supra, and concluding that a judgment is void if it violates principles of procedural due process). We therefore grant the husband’s petition in part, issue the writ, and order the Russell Circuit Court to vacate the QDRO entered on March 16, 2011.

Finally, the husband contends that the QDRO entered on March 16, 2011, is void because the trial court failed to enter an order vacating the QDROs entered on May 2005 and February 2008 in case no. DR-99-138 (the divorce action). We pretermit discussion of this argument because we have determined that the

March 16, 2011, QDRO must be vacated for other reasons. We note, however, that the trial court has a duty to comply with the remand instructions given by this court. See Giardina v. Giardina, 39 So.3d 204, 208 (Ala.Civ.App.2009) (quoting Brown v. Brown, 20 So.3d 139, 141 (Ala.Civ.App.2009)). Thus, the trial court is still required to enter an order, in case no. DR-99-138, vacating the QDROs entered in May 2005 and February 2008, if it has not already done so.

Conclusion

We deny the petition in part and grant the petition in part, and we direct the trial court to vacate the QDRO entered on March 16, 2011. The husband’s motion to strike parts of the wife’s response to his petition for a writ of mandamus is denied.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

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

      . See Gilliam v. Gilliam, 43 So.3d 615, 618 (Ala.Civ.App.2010) (discussing Rule 58, Ala. R. Civ. P., and stating that "[t]he rendering and the entering of a judgment are two separate acts” and that "[a] judgment, although it has been rendered, is not considered effective until it has been entered within the meaning of Rule 58(c)”); and Rule 58(c), Ala. R. Civ. P. (providing that a judgment is deemed " ‘entered’ ... as of the actual date of the input of the order or judgment into the State Judicial Information System”).

      . There is an indication that Judge Johnson made an oral ruling from the bench on March 16, 2011, regarding the discovery issue, but the March 16, 2011, order included in the materials before this court does not mention the wife’s discovery requests.

      . In his petition for a writ of mandamus, the husband stated that "[i]t was apparent, in the weeks leading up to the March 16, 2011, hearing, that Judge Greene had been unavailable due to medical issues.”

      . Although the issue of a court's subject-matter jurisdiction cannot be waived, see Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 662 n. 1 (Ala.2009), we know of no law, and the husband has not directed our attention to any controlling authority, that would make the orders entered by Judge Johnson void for lack of subject-matter jurisdiction simply because, as far as we can tell from the materials provided by the parties, case no. DR-99-138.01 was never formally reassigned to Judge Johnson. The husband cites an opinion from the Alabama Court of Criminal Appeals, Ex parte Sandifer, 925 So.2d 290, 291 (Ala.Crim.App.2005), to support his assertion that an order issued by a judge in a case that has not been properly assigned to that judge is void. However, in Sandifer, the Court of Criminal Appeals based its decision on Ala. Code 1975, § 13A-5-9.1, part of the Habitual Felony Offender Act ("HFOA”), which vests jurisdiction in the sentencing judge or the presiding judge of die circuit court to consider a motion to reconsider a sentence filed more than 30 days after a defendant has been sentenced. See Kirby v. State, 899 So.2d 968, 971 (Ala.2004). The husband in the present case refers to the indication in Sandifer that the Court of Criminal Appeals, in a prior appeal involving Sandifer, had held that an automatic assignment of a motion to reconsider a sentence pursuant to § 13A-5-9.1 to a circuit judge that was neither the sentencing judge nor the presiding judge was void. See also Bulger v. State, 904 So.2d 219, 221 (Ala.Crim.App.2004) (dismissing an appeal as having been taken from a void judgment when a motion to reconsider a sentence pursuant to § 13A-5-9.1 had been considered by a judge that was neither the sentencing judge nor the presiding judge). The remainder of the Sandifer opinion holds that the presiding judge of the Madison Circuit Court had no authority to delegate his responsibilities as presiding judge to another circuit judge who had not been elected or appointed as a presiding judge. 925 So.2d at 296. Accordingly, the present case is distinguishable from Sandifer because there is no Code section that required the wife’s petition to be assigned to any certain judge, nor is there any indication that an appointment of a special circuit judge was required for the completion of case no. DR-99-138.01. Subject-matter jurisdiction generally lies with a court, in this case the Russell Circuit Court, and not with a specific judge sitting on that court. The husband does contend that the Russell Circuit Court did not have subject-matter jurisdiction to enter the March 16, 2011, QDRO, but he does assert that the court lacked subject-matter jurisdiction based on other reasons that are addressed later in this opinion.

      . In fact, it is well settled that " ' "[a] court cannot modify property provisions [in divorce judgments], except to correct clerical errors, after 30 days from the final judgment.” ’ ” Jardine v. Jardine, 918 So.2d 127, 130-31 (Ala.Civ.App.2005) (quoting Ex parte Littlepage, 796 So.2d 298, 301 (Ala.2001), quoting in turn Hamilton v. Hamilton, 647 So.2d 756, 759 (Ala.Civ.App.1994)).

      . We note that, unlike paragraph 10 of the divorce judgment, paragraph 9 of the divorce judgment did not contemplate the entry of a QDRO to implement that award. Because the divorce judgment did not contemplate the entry of a QDRO for paragraph 9, the wife was required to file an action to implement or enforce paragraph 9 through the use of a QDRO.

      .We note that our supreme court has stated:
      "It is clear that the requirements of Rule 78[, Ala. R. Civ. P.,] differ, depending on whether the trial court contemplates granting, as opposed to denying, a motion for a final judgment. Under the plain language of the rule and the comments to the rule, a trial court may not grant a motion to dismiss without a hearing, although, in some circumstances, it may deny such a motion.”
        Burgoon v. Alabama State Dep’t of Human Res., 835 So.2d 131, 133 (Ala.2002).

      . There is an indication that Judge Johnson, at the March 16, 2011, hearing, stated his intention to deny the husband's motion and to enter the QDRO rendered by Judge Greene in October 2010. However, the QDRO was entered on March 16, 2011, which was before the trial court entered an order denying the husband’s motion to dismiss.

      . We note, however, that this court has only considered the materials properly before us. See generally Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1227-28 (Ala.2009).


author: KELLUM, Judge.

text:
    Patrick Napolean SMITH v. STATE of Alabama.
    CR-08-0369.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 2010.

      George W. Miller, Hartselle, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Patrick Napolean Smith, was convicted of one count of murder made capital because it was committed during a first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and one count of murder made capital because it was committed during a first-degree kidnapping, see § 13A-5-40(a)(l), Ala.Code 1975. The jury voted 8 to 4 in favor of life imprisonment, and the trial court sentenced Smith to life imprisonment without the possibility of parole.

The evidence presented by the State demonstrated the following pertinent facts. On the morning of August 12, 2003, the body of Jeremy Black was found near the Interstate Steel facility in Trinity. The body was lying on the gravel driveway of an abandoned house off Old Trinity Road. During its investigation, the Morgan County Sheriffs Department learned that this house was commonly used for drug sales and prostitution.

Medical examiners determined that Black’s death was caused by multiple gunshot wounds. The examination of his body indicated that Black had been shot nine times; seven gunshots had been feed into Black’s chest, exiting through his back, and two gunshot wounds had been fired into Black’s back, exiting through his chest. The two gunshot wounds to Black’s back were described as “contact wounds,” meaning the barrel of the gun was pressing against his skin when the gun fired. A small copper bullet fragment was recovered from Black’s lung, and one intact copper-jacketed bullet was recovered from one of the exit wounds on Black’s back. At the time his body was found, Black was wearing two t-shirts, a pair of boxer shorts, and one sock.

Tammy Sly, a firearms and tool-marks examiner with the Alabama Department of Forensic Sciences, examined bullets and cartridge cases recovered from the crime scene, bullets and bullet fragments recovered from Black’s body, and two handguns — a Ruger .45 caliber pistol and a Colt .45 caliber pistol — discovered during the State’s investigation. Sly determined that the bullets recovered from the crime scene had been fired from these two guns and the shell casings were from the Colt pistol. A bullet recovered from Black’s body during the autopsy was determined to have been fired from the Colt pistol.

Sheriff Gregory Bartlett of Morgan County oversaw the investigation of Black’s murder. Through the course of the investigation, the officers learned that Black was in the business of selling marijuana, and that he had planned to sell marijuana to Marqueze Smith and Patrick Smith the night he was murdered. Cellular telephone records for a cellular telephone belonging to Michelle Matthews, the girlfriend of Christopher Smiley, indicated that at 10:37 p.m. on August 11, 2003, calls were made from Matthews’s phone to Black’s phone, which account was in Black’s mother’s name. Multiple outgoing and incoming calls were logged between the two numbers on the report for late in the night of August 11 and early in the morning of August 12. Using the information obtained from the telephone records, an investigator placed a telephone call to one of the numbers found in the call log of Black’s phone around the time of his death. The man who answered the phone identified himself as Smiley. The officer asked Smiley if he would come to the police station to speak with investigators, and Smiley complied.

Ondrama McDaniel Coffee, an acquaintance of Smith’s, testified that she saw Patrick Smith, Marqueze Smith, and Christopher Smiley at her apartment complex, the Summer Place Apartments, in the early morning hours of August 12, 2003. Coffee first saw the three men standing outside the apartment of Kristen Jones, Marqueze Smith’s girlfriend. According to Coffee, she saw Smiley’s car leave the apartment complex at approximately 1:30 a.m. She testified that she could not tell who, if anyone, was in the car with Smiley, but said that neither Mar-queze nor Patrick Smith were at the apartment complex after Smiley left.

Maggie Mae Johnson, a former girlfriend of Patrick Smith, testified that early in the morning on August 12, 2003, Patrick Smith let himself into Johnson’s apartment with a key she had given him. Smith was carrying a bag at the time. One of the guns involved in the shooting was recovered in Johnson’s apartment; Johnson testified that she did not know how the gun ended up in her apartment, nor did she know how the other items recovered from the upstairs room of her apartment, including stereo equipment and speakers from Black’s automobile, got there. Johnson testified that during that time period, only Smith and she had access to the bedroom.

Lauren Allard lived with Black at the time he was killed. On the night he was killed, Allard recalled Black’s receiving a telephone call around 10:30 p.m. or 11:00 p.m. When shown a picture of the interior of Black’s Oldsmobile Cutlass automobile, Allard explained that the stereo and speakers were missing. Allard identified the stereo equipment recovered from Johnson’s apartment as Black’s stereo equipment. Allard admitted that Black occasionally sold drugs.

On August 13, 2003, the day after Black’s body was discovered, Sheriff Bartlett, along with Investigator Terry Kelly and Sergeant John Bili of the Morgan County Sheriffs Office, arrested Smith at Johnson’s apartment, read him his Miranda rights, and informed him that they wanted to talk with him about Black’s death. Sheriff Bartlett told Smith, “I need the gun,” and Smith told the officers the gun was in an upstairs room of the apartment. (R. 794.) Officer Kelly recovered the following in the closet of the room: a Ruger .45 caliber pistol; a Pioneer Premiere brand car stereo player; an Audiobox brand wooden speaker cabinet containing two 12-inch speakers; two American Pro Ban brand six-inch-by-nine-inch car stereo speakers; a Kenwood brand car stereo power amplifier; a Jensen brand 200-watt power amplifier; an owner’s manual for a 1978 Oldsmobile Cutías Sedan automobile — the brand and model of car driven by Black; an Alfa Insurance Company insurance card for the Oldsmobile sedan in the name of Connie Ann Black, Black’s mother; title to the Oldsmobile in Black’s name; a gym bag; a blue plastic bag that contained paperwork associated with Black; a pair of Nike brand tennis shoes; and some clothes.

Angela Steele, Smith’s sister, telephoned the Morgan County Sheriffs Department in August 2003 to report that she had found a pistol while moving boxes in a storage room of her apartment. When the investigators searched the storage room, they recovered the following: a Colt .45 caliber pistol; a plastic bag in which the pistol was found; a pair of gloves; and a pair of work boots. Steele did not know who had stored the pistol in her apartment.

After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Smith of two counts of capital murder — counts I and III — as charged in his indictment. Smith appealed.

I.

Smith argues that the verdict forms given to the jury by the trial court suggested his guilt and that his convictions should be reversed for that reason. Specifically, Smith argues that the verdict form listed “Guilty” before “Not Guilty”; thus, Smith argues, the order in which the verdicts were listed suggested his guilt.

After the charge conference, the following discussion took place outside the presence of the jury:

“[THE COURT]: And for the record, [your] objection was as to the order in which I listed the guilty and not guilty. “[Defense Counsel]: Yes, yes. And several reasons. One is that the order in which they appear on the verdict form may be taken as jurors as a comment on the — the Court commenting on the evidence. And it could be taken by the jury as an instruction that, well, I think he is guilty, so that is your first choice.
“The second objection is that in the weighing of the evidence they don’t first go to see if he is guilty, as my understanding. They first go to see if the evidence has overcome his presumption of innocence. So the first choice would be not guilty. And if they cannot arrive at that, then they start evaluating or weighing the evidence to determine whether or not he is guilty and of what charge.
“[THE COURT]: Overruled.”

(R. 1316-17.) After the trial court instructed the jury on the applicable law, Smith once again raised the issue of the order of the potential verdicts on the forms given to the jury. The trial court then gave the jury the following instruction: “For your convenience, the Court prepared for your use in the case three forms of the verdict. No inferences are to be drawn by you from the fact that the Court has supplied you with these forms or from the order in which your choices are listed on the forms.” (R. 1432.)

“A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts in the case.” Ingram v. State, 779 So.2d 1225, 1258 (Ala.Crim.App.1999), citing Raper v. State, 584 So.2d 544 (Ala.Crim.App.1991).

We cannot assume that the jurors presumed Smith’s guilt from the order of the verdicts on the forms given to the jury by the trial court. To do so would require us to presume that the jurors completely disregarded the trial court’s supplemental instruction not to draw inferences from the order of the verdict choices listed on the forms. See, Brooks v. State, 973 So.2d 380, 409 (Ala.Crim.App.2007) (“It is well settled that jurors are presumed to follow, not disregard, the trial court’s instructions.”). Accordingly, this claim is without merit.

II.

Smith also argues that the trial court erroneously denied his motion for a judgment of acquittal with respect to both counts of capital murder. At the conclusion of the State’s case-in-chief, Smith made the following motion for a judgment of acquittal: “Judge, we make a motion for verdict of acquittal as to all three counts of the indictment.” (R. 1138.) Specifically, Smith contends that the State failed to prove that a robbery took place to support the capital robbery/murder conviction and failed to prove that the victim was abducted to support the capital kidnapping/murder conviction. Furthermore, he claims that most of, if not all, the evidence presented against him was circumstantial.

“ ‘ “ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ “When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).
“ ‘ “The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983). When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for judgment of acquittal does not constitute error. McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).” ’

“Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), quoting Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992). See also, Ward v. State, 814 So.2d 899, 908-910 (Ala.Crim.App.2000).

“ ‘ “Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.” White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). “Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.” Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).’ ”

Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007). With these principies in mind, we will address the sufficiency of the State’s evidence as applied to each of Smith’s capital-murder convictions.

A.

Smith contends that the State failed to produce any evidence indicating that a robbery took place, or, assuming a robbery did take place, that Smith was somehow connected to that robbery, as required by § 13A-5-40(a)(2), Ala.Code 1975. Specifically, Smith argues that he could be connected to any robbery only by circumstantial evidence, which, he contends, is insufficient to support his capital-murder conviction.

The jury found Smith guilty of the capital offense of murder during the course of a robbery, meaning: “Murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.” § 13A-5-40(a)(2), Ala. Code 1975. “The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing.” Smith v. State, 756 So.2d 892, 938 (Ala.Crim.App.1997), quoting Hallford v. State, 548 So.2d 526, 534 (Ala.Crim.App.1988). A person commits murder if “[w]ith intent to cause the death of another person, he causes the death of that person.” § 13A-6-2(a)(1), Ala.Code 1975. A person commits robbery in the first degree if “in the course of committing a theft he ... [u]ses force against the person of the owner ... with intent to overcome [his] physical resistance or physical power of resistance; or ... [threatens the imminent use of force against the person of the owner ... with intent to compel acquiescence to the taking of or escaping with the property,” § 13A-8-3, Ala.Code 1975, and the person “[i]s armed with a deadly weapon or dangerous instrument; or ... [c]auses serious physical injury to another.” § 13A-8-41, Ala.Code 1975.

The evidence presented at trial demonstrated that Patrick Smith was with Mar-queze Smith and Christopher Smiley on the night that Black was murdered. A witness testified to seeing the three together at Summer Place apartments, and that the three were no longer seen in the complex after Smiley’s car pulled out of the parking lot. Telephone records indicated that telephone calls were placed between a cellular telephone used by Smiley and one used by Black. The police learned that Black sold marijuana on occasion and that on the night in question, he was going to sell marijuana to Marqueze Smith and Patrick Smith. Later that morning, Black’s body was found near a house known to be a rendezvous location for drug transactions. Black had been shot multiple times in the chest and in the back. The gunshot wounds indicated that Black was lying on the ground when he was shot. Black’s body appeared to have been stripped of most of his clothes. Black’s car was not parked in the vicinity and was later located in a junkyard in Trinity. One of the firearms was recovered at Smith’s sister’s residence, and the other was recovered in the closet of the residence of Smith’s girlfriend. Smith visited Johnson’s residence early in the morning of August 12, 2003, the day Black was murdered. Smith was carrying a bag when he arrived at the residence early that morning. The police investigation uncovered automobile stereo equipment that Black’s girlfriend identified as belonging to Black in the closet in Johnson’s residence where one of the firearms was recovered. More of Black’s property, including, among other things, an insurance card and title for Black’s Oldsmobile Cutlass sedan, were also recovered in the same closet.

When the evidence is viewed, as it must be, in the light most favorable to the State, see Hollaway, 979 So.2d at 843, there was sufficient evidence from which the jury could find beyond a reasonable doubt that Smith carried out or participated in the robbery that formed the basis of his robbery/murder conviction. Accordingly, the trial court did not err when it denied Smith’s motion for a judgment of acquittal as to this charge.

B.

Next, Smith contends that the State failed to present evidence to support a conviction for the capital offense of kidnapping/murder pursuant to § 13A-5-40(a)(1), Ala.Code 1975. Specifically, Smith contends that “[tjhere was no evidence of any kind as to any abduction, and [sic] deportation, or any other act which would give rise to an offense for kidnapping.” (Smith’s brief, at 58.)

“To sustain a conviction under § 13A-5-40(a)(l), Ala.Code 1975, for the capital offense of murder during a kidnapping, the State must prove beyond a reasonable doubt: (1) a kidnapping in the first degree, as defined by § 13A-6-43(a), or an attempt thereof; (2) an intentional murder, as defined by § 13A-6-2(a)(l); and (3) that the murder was committed ‘during’ the course of the ‘kidnapping or attempted kidnapping.’ ”

Butler v. State, 781 So.2d 994, 997 (Ala.Crim.App.2000).

Smith was charged with capital murder committed during the course of a kidnapping because the victim was killed during his abduction and his abduction had the intent to inflict physical injury upon him. “A person commits the crime of kidnapping in the first degree if he abducts another person with intent to ... [ijnflict physical injury upon him, or to violate or abuse him sexually.” § 13A-6-43(a)(4), Ala.Code 1975. Section 13A-6-40(2), Ala. Code 1975, defines the term “abduct” as “restraining] a person with intent to prevent his liberation by either: (a) Secreting or holding him in a place where he is not likely to be found, or (b) Using or threatening to use deadly physical force.” Section 13A-6-40(l), Ala.Code 1975, defines “restrain” in the following manner:

“To intentionally or knowingly restrict a person’s movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is ‘without consent’ if it is accomplished by:
“a. Physical force, intimidation or deception.... ”

Here, the State presented evidence demonstrating that Black had been shot multiple times, which was sufficient to demonstrate that Smith intended to inflict physical injury upon Black for purposes of finding a kidnapping under § 13A-6-43(a)(4). However, even viewing the evidence, as we must, in a light most favorable to the State, see Hollaway, 979 So.2d at 843, we must conclude that the State failed to present sufficient evidence from which the jury could have concluded that Smith abducted Black. Although the evidence presented at trial gave rise to the inference that Smith and his codefendants telephoned Black, arranged a meeting with him, and ultimately shot, killed, and robbed him, the State did not present evidence demonstrating that Smith “restrained” Black, as that term is defined by § 13A-6-40(l). The State did not present evidence tending to show that Smith and his codefendants restricted Black’s movements without Black’s consent by moving him from one place to another or by confining him.

We are mindful that this Court cannot substitute its judgment for that of the jury. Nevertheless, the role of an appellate court is to judge whether the evidence is legally sufficient to allow submission of an issue for decision by the jury. See Hollaway v. State, supra; see also Ex parte Stewart, 900 So.2d 475 (Ala.2004) (rendering a judgment of acquittal based on a finding that State’s evidence was legally insufficient to sustain conviction). As a matter of law, the evidence presented by the State was insufficient to sustain a conviction for the capital offense of murder committed during the course of a kidnapping. Therefore, the trial court erred in denying Smith’s motion for a judgment of acquittal with respect to this charge. Accordingly, this case must be remanded for the circuit court to vacate Smith’s conviction for murder made capital because it was committed during the course of a kidnapping.

III.

Smith also argues that the trial court gave the jury an erroneous instruction after the jury asked the court a question regarding the instructions. During its deliberations, the jury asked the trial court the following question: “Can [Smith] be guilty of capital murder if he wasn’t the one who pulled the trigger? If you can’t answer the question, we may have to sit through the instructions again.” (R. 1459-GO.) The trial court then instructed the jury once again on accomplice liability and complicity. Smith did not object to the instruction given to the jury in response to its question.

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

Rule 21.3, Ala. R.Crim. P. Accordingly, Smith’s claim that the supplemental jury instructions were erroneous was not preserved for this Court’s review, and we will not address the claim on appeal. See, Deramus v. State, 721 So.2d 239, 242 (Ala.Crim.App.1997).

IV.

Smith also argues that the trial court erred in denying his motion to suppress evidence on the grounds that the warrants underlying two of the searches were defective. Specifically, Smith argues that the first warrant, which authorized the search of Black’s vehicle, was void because it did not properly identify the owner of the vehicle to be searched and that the second warrant, which authorized the search of Smith’s residence, was void because it did not accurately describe the property to be seized.

A.

The first search warrant authorizes police to search Black’s vehicle. This search warrant reads:

“Proof and affidavit having this day been made before me, the undersigned authority, by investigator Terry Kelly showing probable cause for belief that: “Evidence connected with the murder one Jeremy McKinley Black is located in or on a vehicle owned by the deceased, to wit: a 1978 Oldsmobile Cutlass Sedan, VIN #-, Tag #-
“You are therefore, commanded, during the hours of daylight, to make an immediate search:
“A 1978 Oldsmobile Cutlass Sedan, VIN #- TAG #-, currently located at the Morgan County Sheriffs office secure storage facility in Decatur, Morgan County, Alabama “For the following described property, item(s) or substance(s), to wit:
“1) A cell phone, #-
“2) Any property identifiable as belonging to one Jeremy McKinley Smith
“3) Any other evidence concerning the murder of Jeremy McKinley Smith

(R. 63; emphasis added.)

Smith argues that there is no person named “Jeremy McKinley Smith ” associated with this case and that the warrant was thus defective because it failed to properly identify the owner of the vehicle to be searched. “ ‘ “The test for determining the sufficiency of the description of the place to be searched is whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort.” ’ ” Roberson v. State, 864 So.2d 379, 387 (Ala.Crim.App.2002) (quoting other cases). This warrant was sufficiently particular to direct police to the correct place to be searched. Although the warrant does misstate the victim’s name, it does so only after correctly identifying “Jeremy McKinley Black ” earlier in the warrant. Furthermore, the inclusion of the vehicle-identification number and the license-tag number sufficiently identified which particular vehicle the police needed to search.

Moreover, the accompanying affidavit did not misstate the victim’s name, and the inaccuracy in the search warrant appears to be clerical in nature. (See C. 61-62.) Because the issuing magistrate, and not the police, committed the error, the suppression of any evidence uncovered pursuant to this search warrant would “ ‘not serve the deterrent function that the exclusionary rule was designed to achieve.’ ” Ex parte Tyson, 784 So.2d 357, 364 (Ala.2000), quoting Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). Accordingly, the search warrant authorizing the search of Black’s vehicle was sufficiently specific and was not defective to the point of requiring the reversal of Smith’s conviction or the suppression of any evidence.

B.

The second search warrant authorizes police to search the residence of Patrick Napolean Smith and Novella Smith, Patrick’s mother, in connection with the murder of Jeremy McKinley Black. This search warrant reads as follows:

“Proof and affidavit having this day been made before me, the undersigned authority, by investigator Terry Kelly showing probable cause for belief that:
“Property connected with the murder one Jeremy McKinley Black is located at the residence of Novella Smith and Patrick Napolean Smith, that being-8th St., SW Apt # -, Decatur, Alabama.
“You are, therefore, commanded, during the hours of daylight, to make an immediate search of:
“The residence of Novella Smith and Patrick Napolean Smith, located at-8th St. SW, Apt. # -, Decatur, Morgan County, Alabama
“For the following described property, item(s), or substance(s), to wit:
“1) A .45 Caliber semiautomatic pistol
“2) A .45 ACP caliber full metal jacket ammunition
“[3) The search warrant lacked an item number ‘3)’.]
“4) A cell phone, #-
“5) Any property identifiable as belonging to one Jeremy McKinley Smith
“6) Any other evidence concerning the murder of Jeremy McKinley Smith.

(C. 66; emphasis added.)

Smith argues that there is no person associated with this case named “Jeremy McKinley Smith”; thus, he argues, the warrant was invalid because it does not accurately describe the items to be seized. We find Smith’s arguments unpersuasive and meritless. The search warrant accurately describes the location to be searched — Smith’s residence — and the purpose for the search — the investigation of the murder of Jeremy McKinley Black. Like the first search warrant, the second warrant misstates the victim’s last name, but only after it correctly identifies that the search warrant was issued in connection to the murder of Jeremy McKinley Black. Also like the first warrant, the accompanying affidavit states that any evidence concerning the murder of Jeremy McKinley Black should be seized pursuant to that warrant, indicating that the second warrant also contained a clerical error like the first search warrant. Accordingly, the search warrant authorizing the search of Smith’s residence was sufficiently specific and was not defective to the point of requiring the reversal of Smith’s convictions or the suppression of any evidence.

V.

Smith also argues that his indictment was due to be dismissed as a result of the State’s alleged Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violations. Specifically, Smith argues that the State failed to promptly comply with the trial court’s discovery order and also failed to provide the defense with evidence of a plea-bargain agreement the State had made with one of Smith’s codefendants.

“ ‘Three elements must be proven in order to establish a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). These elements include 1) the prosecution’s suppression of evidence; 2) the favorable character of the suppressed evidence for the defense; and 3) the materiality of the suppressed evidence. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97.’ ”

James v. State, 61 So.3d 332, 344 (Ala.Crim.App.2006), quoting Hendrix v. State, 589 So.2d 769, 770 (Ala.Crim.App.1991).

In Johnson v. State, [Ms. CR-99-1349, October 2, 2009] — So.3d - (Ala.Crim.App.2009), this Court explained:

“ ‘ “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375 [ (1985) ]. The same rule applies when the State discloses Brady material in an untimely manner. See Coral v. State, 628 So.2d 954, 979 (Ala.Crim.App.1992) (“Tardy disclosure of Brady material is generally not reversible error unless the defendant can show that he was denied a fair trial.” (citing United States v. Gordon, 844 F.2d 1397 (9th Cir.1988); United States v. Shelton, 588 F.2d 1242 (9th Cir.1978); Ex parte Raines, 429 So.2d 1111 (Ala.1982); and McClain v. State, 473 So.2d 612 (Ala.Crim.App.1985))).’

“[Ex parte Belisle,] 11 So.3d [323,] 330-31 [ (Ala.2008) ] (footnote omitted).

“In rejecting Belisle’s argument, which is also raised by Johnson in the present case, that the information would have enabled him to better prepare for trial, the Court stated:

“ ‘ “Appellant’s argument that the information would have enabled more effective preparation for trial was rejected in United States v. Agurs, supra, 427 U.S. [97,] at 112 n. 20, 96 S.Ct. [2392] at 2401 n. 20 [ (1976) ], on the grounds that an argument could always be made that knowledge of the prosecutor’s case, both incriminating and exculpatory, would help defense counsel in preparation of the case for the defense. Therefore, the proper focus is upon the materiality in the nondisclosure or delayed disclosure of exculpatory information in determining the denial vel non of defendant’s rights of due process and fair trial....” ’
“'Ex parte Raines, 429 So.2d 1111, 1113-14 (Ala.1982). Thus, Belisle is not entitled to a new trial simply because having the proffer would have enabled him to more effectively prepare for trial.’

“11 So.3d at 331-32 (footnote omitted).” — So.3d at-.

Smith has failed to explain the nature of the evidence that was allegedly not disclosed in a timely manner. Furthermore, aside from an argument that the untimely disclosure prejudiced the preparation of his defense, Smith fails to explain how he was denied a fair trial by the alleged untimely disclosure. Accordingly, Smith has failed to present a colorable Brady violation that would merit the dismissal of his indictment.

Smith also complains that information regarding a plea-bargain agreement between the State and one of Smith’s code-fendants was never disclosed to Smith. However, nothing in the record indicates that such a deal actually existed. Furthermore, the record clearly shows that neither of Smith’s two codefendants testified against Smith at trial. Accordingly, this claim is without merit and entitles Smith to no relief.

VI.

Smith also argues that the trial court erroneously denied his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. Specifically, Smith argues that the State impermissibly struck two potential jurors based solely on the jurors’ race.

“‘The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination.’ ” Rogers v. State, 819 So.2d 643, 648 (Ala.Crim.App.2001), quoting Burgess v. State, 811 So.2d 557, 572-73 (Ala.Crim.App.1998). A determination regarding a moving party’s showing of intent to discriminate under Batson is “a pure issue of fact, subject to review under a deferential standard.” Armstrong v. State, 710 So.2d 531, 534 (Ala.Crim.App.1997). “After the appellant makes a timely Batson motion and establishes a prima facie showing of discrimination, the burden shifts to the State to provide a race-neutral reason for each strike.... See, e.g., Ex parte Bird, 594 So.2d 676 (Ala.1991).” Cooper v. State, 611 So.2d 460, 463 (Ala.Crim.App.1992). Once the prosecutor has articulated race-neutral reasons for the strike, the moving party can then offer evidence showing that those reasons are merely a sham or pretext. Ex parte Branch, 526 So.2d 609, 624 (Ala.1987).

“We will reverse the circuit court’s ruling on the Batson motion only if it is ‘clearly erroneous.’ Jackson v. State, 549 So.2d 616 (Ala.Crim.App.1989).” Cooper v. State, 611 So.2d at 463. “ ‘ “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” ’ ” Fletcher v. State, 703 So.2d 432, 436 (Ala.Crim.App.1997), quoting Davis v. State, 555 So.2d 309, 312 (Ala.Crim.App.1989), quoting in turn Powell v. State, 548 So.2d 590 (Ala.Crim.App.1988).

After voir dire, Smith made a Batson motion challenging the State’s use of peremptory strikes against potential jurors no. 28 and no. 3, and the following discussion took place:

“[Defense counsel]: The defendant is a black man. There were four blacks that I counted total on the venire. The state’s first strike struck number 28, and that was a black woman. She indicated that she knew some of the family members — I think on the jury — (inaudible).
“Number 3 in Panel 1 was the State’s eighth strike. She too was black. The state struck her. She didn’t — she didn’t have any — to my knowledge he did not have anything she attributed that would have given her a reason to be stricken.
“I believe — it is my belief the state is going to say that they prosecuted her husband. They didn’t ask her any questions about that ... her husband, but they didn’t ask for any questions about that.
“THE COURT: Denied as to number 28. All right.
“[State]: Judge, I asked them earlier of [sic] any of their family members had been arrested. She didn’t respond the first time. I found out she had been married to K.R. We prosecuted him. I asked her, and she said she hasn’t lived here long. She wasn’t truthful. I don’t think that they carried the burden anyway, but he has a prior conviction, and she hasn’t been truthful.
“Now, is she going to go home tonight and ask her husband about it and find out he knows all these people and he has been in trouble? Probably. She wasn’t truthful.
“I asked had anybody ever been arrested in your family.
“[Defense counsel]: The State could have put questions to her directly bearing on that if he was going to use that for the basis of a strike, and he did not. It may be a different K.R. or whatever — whatever his name is.
“THE COURT: All right. It is denied.” (R. 523-24.)

With respect to potential juror no. 28, the trial court denied Smith’s Batson motion without requiring a response from the State. To the extent that Smith challenges this determination, we note that the only evidence presented to the trial court by the defense was the fact that the State used its peremptory strikes to remove two of the four potential black jurors. Numbers alone, however, are not sufficient to establish a prima facie case of discrimination. See Boyd v. State, 715 So.2d 825 (Ala.Crim.App.1997), aff'd, 715 So.2d 852 (Ala.1998). There was no evidence presented indicating that any of the factors set out in Ex parte Branch, 526 So.2d 609 (Ala.1987), which may be used to establish a prima facie case, existed. Instead, in addition to his statistical showing, Smith offered only speculation as to the State’s reasons for the exercise of its peremptory challenges against juror no. 28. These arguments alone were not sufficient to prove a prima facie case of a Batson violation. Accordingly, we cannot say that the trial court erred in denying Smith’s Batson motion with respect to potential juror no. 28.

With respect to potential juror no. 3, the State argued that the potential juror’s ex-husband had been prosecuted by their office. This Court has recognized that the use of a peremptory strike against a potential juror who is related to someone who has been convicted of a crime is a sufficient race-neutral justification under Batson. See, Lewis v. State, 741 So.2d 452 (Ala.Crim.App.1999) (“Striking a prospective juror because a member of the juror’s family has been convicted of a crime is a valid race-neutral reason under Batson.”). Accordingly, we cannot say that the trial court erred in denying Smith’s Batson motion with respect to potential juror no. 3.

VII.

Smith also argues that his two convictions for capital murder violate double-jeopardy principles. Our reversal of Smith’s conviction for murder made capital because it was committed during a kidnapping, see Part II.B. of this opinion, renders this claim moot.

VIII.

Finally, Smith argues that the Morgan County Sheriffs Department conducted an illegal, warrantless search of Maggie Johnson’s residence. Specifically, Smith argues that Johnson only consented to a search of her residence after Sheriff Bartlett threatened to arrest her. This specific issue was not raised at the trial court; therefore, it is not preserved for appellate review. “[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.” Merchant v. State, 724 So.2d 65 (Ala.Crim.App.1998). Moreover, Smith did not raise this objection in his motion to suppress. “The statement of specific grounds of objection waives all grounds not specified and the trial court will not be put in error on grounds not assigned at trial.” May v. State, 710 So.2d 1362 (Ala.Crim.App.1997), quoting Jackson v. State, 593 So.2d 167 (Ala.Crim.App.1991). Accordingly, we will not address this issue on appeal.

IX.

Based on the foregoing, Smith’s conviction for the capital offense of murder made capital because it was committed during the course of a robbery is affirmed. However, for the reasons set forth in Part II.B. of this opinion, Smith’s conviction for the capital offense of murder made capital because it was committed during the course of a kidnapping cannot stand. Accordingly, we reverse that conviction and remand this case to the circuit court with instructions that it vacate Smith’s conviction for the offense of capital murder based on the kidnapping. On remand, the court shall take all action necessary to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days of the release of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

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

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       Note from the reporter of decisions: On April 16, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On June 18, 2010, that court denied rehearing, without opinion. On September 9, 2011, the Supreme Court denied certiorari review, without opinion (1091356).