text:
    Clarence WATERS v. STATE of Alabama.
    CR-12-0971.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.
    Rehearing Denied Jan. 31, 2014.
    Certiorari Denied April 11, 2014 Alabama Supreme Court 1130518.

      George Nicholas Wallace, Montgomery, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   JOINER, Judge.

Clarence Waters appeals the Montgomery Circuit Court’s denial of his motion to withdraw his guilty plea. We affirm.

Facts and Procedural History

On May 12, 2005, Waters pleaded guilty to first-degree stalking, see § 13A-6-90, Ala.Code 1975, and was sentenced, as a habitual felony offender, to 30 years’ imprisonment. On June 1, 2005, Waters filed a written pro se motion to withdraw his guilty plea. On July 14, 2005, the circuit court conducted a hearing on Waters’s pro se motion. (Record on Waters’s Third Rule 32, Ala. R.Crim. P., Petition, C. 22-37.) At the conclusion of the hearing, the circuit court denied Waters’s pro se motion to withdraw his guilty plea. Waters, thereafter, filed a direct appeal to this Court, which was dismissed on his own motion. See Waters v. State (No. CR-04-2213), 945 So.2d 1110 (Ala.Crim.App.2005) (table).

On December 20, 2011, Waters filed his third Rule 32 petition, alleging that he was denied the right to counsel at the July 14, 2005, hearing on his pro se motion to withdraw his guilty plea. The State responded to Waters’s third Rule 32 petition and conceded that Waters should be grant-. ed the relief he requested in his third Rule 32 petition — i.e., to be represented by counsel at a hearing on the motion to withdraw his guilty plea. (Record on Waters’s Third Rule 32 Petition, C. 49-50.) The circuit court, however, issued a one-sentence order summarily dismissing Waters’s petition. (Record on Waters’s Third Rule 32 Petition, C. 65.) Waters appealed the circuit court’s summary dismissal of his third Rule 32 petition. In that appeal, Waters again asserted that he was not represented by counsel at the July 14, 2005, hearing on his pro se motion to withdraw his guilty plea.

On September 12, 2012, this Court issued an order holding that Waters had raised a meritorious, jurisdictional claim, see Ex parte Pritchett, 117 So.3d 356, 358 (Ala.2012) (“ ‘If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment [to the United States Constitution] stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty.’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))), and concluding that the circuit court had erred when it summarily dismissed Waters’s third Rule 32 petition without first conducting an evidentiary hearing. Thus, this Court remanded the action to the circuit court for that court to conduct an evidentiary hearing pursuant to Rule 32.9, Ala. R.Crim. P., on Waters’s third Rule 32 petition, and we further instructed the circuit court “to take any necessary action as a consequence of the evidentiary hearing.” (Record on Return to Remand on Waters’s Third Rule 32 Petition, C. 5.)

On November 19, 2012, the circuit court complied with this Court’s remand order and conducted an evidentiary hearing, at which Waters was represented by counsel. At the evidentiary hearing, Waters’s trial counsel testified that he did not represent Waters at the July 14, 2005, hearing on Waters’s pro se motion to withdraw his guilty plea, and the circuit court granted Waters’s third Rule 32 petition, stating: “[I]t’s pretty clear that [Waters] did not have an attorney at that time.” (Record on Return to Remand on Waters’s Third Rule 32 Petition, R. 7.)

After the circuit court granted Waters relief on the claim raised in his third Rule 32 petition, the following exchange occurred:

“The Court: So what’s our next issue?
“[Waters’s Rule 32 counsel]: Judge, we’d still like to withdraw our guilty plea.
“The Court: Under what grounds?
“[Waters’s Rule 32 counsel]: That Mr. Waters was misled under [his trial counsel’s] representation of him, that he had some semblance of a plea agreement with the State and that he ended up pleading guilty because he thought he had a probationary sentence coming. Obviously, that didn’t end up happening.”

(R. 7.) Thereafter, the circuit court allowed Waters to present evidence to support his motion to withdraw his guilty plea. On December 31, 2012; the circuit court issued a written order denying Waters’s motion to withdraw his guilty plea, and return was made to this Court.

On return to remand, this Court, in an unpublished memorandum, dismissed Waters’s appeal, holding that Waters had been afforded the relief he sought in his third Rule 32 petition — i.e., to be represented by counsel at a hearing on the motion to withdraw his guilty plea — and concluding that Waters’s claim on appeal had been rendered moot. See Waters v. State (No. CR-11-1278, Feb. 1, 2013), — So.3d - (table).

On December 26, 2012, Waters filed a notice of appeal from the circuit court’s denial of his motion to withdraw his guilty plea.

Discussion

On appeal, Waters contends that the circuit court abused its discretion when it denied his motion to withdraw his guilty plea because, he says, his trial counsel made a “material misrepresentation ... about what punishment [Waters] would receive if he agreed to plead guilty.” (Waters’s brief, p. 13.)

I.

Although neither Waters nor the State discusses in the briefs on appeal this Court’s jurisdiction to decide Waters’s appeal, this Court, as a threshold issue, must determine whether we may exercise jurisdiction over Waters’s appeal. Specifically, this Court must determine whether a petitioner, who obtains Rule 32 relief and is permitted to present evidence supporting his previously filed motion to withdraw his guilty plea, is permitted to separately appeal the circuit court’s subsequent denial of that motion to withdraw his guilty plea.

Historically, defendants had no right to appeal from a guilty plea or from the denial of a motion to withdraw a guilty plea. See § 15-15-26, Ala.Code 1975 (“After the court has heard and considered a plea of guilty by a defendant and has permitted the filing of such plea and sentenced the defendant, such defendant shall not have the right of appeal from the action of the court.”). Thus, there are numerous cases involving the dismissal of attempts to appeal from guilty pleas or the denial of motions to withdraw guilty pleas. See, e.g., Gwin v. State, 425 So.2d 500, 504 (Ala.Crim.App.1982) (citing Dawson v. State, 37 Ala.App. 16, 66 So.2d 567 (1952), for the proposition that no appeal lies from an order denying a motion to withdraw a guilty plea); Turner v. State, 365 So.2d 335 (Ala.Crim.App.1978) (motion to withdraw a guilty plea); Powell v. State, 41 Ala.App. 569, 141 So.2d 209 (1962) (guilty plea); and Dawson v. State, 37 Ala.App. 16, 66 So.2d 567 (1952) (motion to withdraw a guilty plea).

-When it became effective in 1991, Rule 2.2(e)(5), Ala. R.Crim. P., superseded § 15-15-26, Ala.Code 1975, and granted defendants the right to appeal from guilty-plea convictions; that rule stated: “Upon acceptance of defendant’s plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court.” The Committee Comment to section (e) expressly stated that subsection (e)(5) superseded § 15-15-26. See Committee Comment, Rule 2.2(e), Ala. R.Crim. P. (“[Section] 15-15-26, which denied the defendant a right of appeal, is superseded by 2.2(e)(5), which grants the defendant a right of appeal.”).

In 1996, the Legislature enacted § 15-15-20.1, Ala.Code 1975. Among other things, § 15-15-20.1 expressly superseded Rule 2.2(e), Ala. R.Crim. P. See § 15-15-20.1(h), Ala.Code 1975 (“This section supersedes Rule 2.2(e) of the Alabama Rules of Criminal Procedure.”). Although worded differently, § 15-15-20.1(e) is in essence no different from former Rule 2.2(e)(5). Section 15-15-20.1(e) provides: “Upon acceptance from the defendant plea of guilty and pronouncement and entry of judgment and sentencing, the defendant shall have a right of appeal from the action of the court.”

In its 2002 amendments to the Rules of Criminal Procedure, the Alabama Supreme Court imposed some limitations on the ability of a defendant to appeal from a guilty-plea conviction. Notably, Rule 26.9(b)(4), Ala. R.Crim. P., which became effective August 1, 2002, requires the trial court in pronouncing sentence to inform the defendant who has entered a plea of guilty that he has the right to appeal

“only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law.”

Regarding Rule 26.9(b)(4), Justice Maddox offers the following explanation in his treatise:

“The Supreme Court’s amendment to Rule 26.9 changed the procedure that had been in place for a number of years, which allowed a defendant, even though pleading guilty, to take an appeal. If the defendant desires to enter a plea of guilty, there are several forms provided to be used in entering a plea of guilty.... [Several of these forms] were revised to eliminate provisions in the earlier forms that stated that a defendant had a right to appeal, to add a proviso that a defendant, by entering a plea[ ] of guilty, would waive the right to appeal, unless the defendant had, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review would be limited to a determination of the issue or issues reserved, or (2) unless the defendant had timely filed a motion to withdraw the plea of guilty after pronouncement of sentence on the ground that the withdrawal was necessary to correct a manifest injustice, and the court had denied the motion to withdraw the plea, or the motion had been deemed denied by operation of law.”

Hugh Maddox, Alabama Rides of Criminal Procedure § 26.9 (5th ed.2011).

The interplay between the Legislature and the Alabama Supreme Court as to whether and how a guilty-plea conviction may be appealed demonstrates two important principles relevant here. First, the Alabama Supreme Court may, by its rule-making authority, supersede a statute denying the right to appeal certain matters and thereby create a new right to appeal— as the Court did in 1991 by promulgating Rule 2.2(e), Ala. R.Crim. P. Second, the Alabama Supreme Court may use its rule-making authority to impose certain procedural requirements before a defendant may invoke a statutory right to appeal — as the Court did by promulgating Rule 26.9, Ala. R.Crim. P.

With those principles in mind, we turn to § 12-22-10, Ala.Code 1975, Rule 24, Ala. R.Crim. P., and numerous decisions of this Court and the Alabama Supreme Court recognizing that a motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial under Rule 24, Ala. R.Crim. P.

Section 12-22-10, Ala.Code 1975, which was last amended in 1949, provides: “Either party in a civil case, or the defendant in a criminal case, may appeal to the appropriate appellate court from an order granting or refusing a motion for a new trial by the circuit court.” (Emphasis added.) Rule 24.1, Ala. R.Crim. P., states, in relevant part:

“(a) Power of the Court. When the defendant has been sentenced, the court, on motion of the defendant or on its own motion, may order a new trial.
“(b) Timeliness. A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced. After a denial of a motion for a new trial, the previously filed notice of appeal shall be deemed to have been filed as of the date of the denial of the motion and shall include an appeal from the denial of the motion.”

(Emphasis added.) Thus, § 12-22-10 creates the right to appeal the denial of a motion for a new trial, and Rule 24, Ala. R.Crim. P., establishes the procedure for invoking that right.

Since the early 1990s, decisions of this Court and the Alabama Supreme Court have held that a motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial under Rule 24, Ala. R.Crim. P. See, e.g., Wallace v. State, 701 So.2d 829, 830 (Ala.1997) (citing Wilson v. State, 659 So.2d 152 (Ala.Crim.App.1994), and Rose v. State, 598 So.2d 1040 (Ala.Crim.App.1992)).

In the ordinary case involving a defendant’s guilty-plea conviction and sentence, the circuit “court has jurisdiction over a motion [to withdraw a guilty plea] if it is filed within 80 days after the entry of the judgment or sentence even if a notice of appeal is also filed, regardless of the order in which the motion and notice of appeal are filed.” Wallace, 701 So.2d at 830 (citing § 12-22-133, Ala.Code 1975; Rule 4(b)(1), Ala. R.App. P.; Rule 24, Ala. R.Crim. P.; and Walker v. State, 652 So.2d 198 (Ala.1994)). Under Rule 24.1(b), Ala. R.Crim. P., a notice of appeal filed after a judgment of conviction and sentence includes not only an appeal of the conviction and sentence, but also “an appeal from the denial of the motion” to withdraw the guilty plea.

The timing of Waters’s appeal, however, is not “ordinary”; rather, the instant notice of appeal was filed years after Waters’s original conviction and sentence because, as a result of obtaining relief in his third Rule 32 petition, Waters was permitted to have a hearing on his original motion to withdraw his guilty plea. As noted, following that hearing at which Waters was represented by counsel, the circuit court entered an order denying Waters’s motion to withdraw his guilty plea. Thus, we must determine whether the circuit court’s December 31, 2012, order denying Waters’s motion to withdraw his guilty plea is an appealable order.

Rule 32.9(c), Ala. R.Crim. P., authorizes the circuit court, if it “finds in favor of the petitioner, ... [to] enter an appropriate order with respect to the conviction, sentence, or detention.” That same subsection also authorizes the circuit court to order “any further proceedings, including a new trial,” and to address “any other matters that may be necessary and proper.” (Emphasis added.) Thus, Rule 32, which provides a procedural vehicle for a defendant to collaterally attack the proceedings that led to his conviction or sentence, authorizes the circuit court to, in essence, reopen the proceedings that led to the petitioner’s conviction and sentence if the petitioner demonstrates he is entitled to relief. Our caselaw illustrates that when a Rule 32 petitioner obtains relief, the proceedings are reopened at the point necessary for the circuit court to address the particular problem in that case.

For example, if a Rule 32 petitioner demonstrates that his sentence is illegal, the circuit court may then reopen the proceedings and resentence the petitioner. See, e.g., McMillian v. State, 934 So.2d 434 (Ala.Crim.App.2005) (granting Rule 32 relief where the petitioner’s sentence was improperly enhanced under the Habitual Felony Offender Act and instructing the circuit court to resentence the petitioner without the application of the Habitual Felony Offender Act). Additionally, if a Rule 32 petitioner shows that his conviction must be overturned then the conviction — and the corresponding sentence for that conviction — will be set aside and the proceedings will continue from that point — additional proceedings could include, for example, a new trial, a guilty plea, or the dismissal of the charges. See, e.g., Riley v. State, 892 So.2d 471 (Ala.Crim.App.2004) (granting Rule 82 relief where the petitioner’s guilty plea was involuntary and instructing the circuit court to set aside the petitioner’s conviction and sentence).

Here, as set out above, Waters’s third Rule 32 petition was directed at a problem that occurred after conviction and sentence. Specifically, Waters argued that he was not represented by counsel at the hearing on his motion to withdraw his guilty plea. Thus, the relief granted by the circuit court in essence reset Waters’s proceedings to a point in time after his-conviction and sentence, but before the July 14, 2005, hearing on Waters’s motion to withdraw his guilty plea. Thus, the hearing conducted on November 19, 2012 — at which Waters was permitted to present evidence in support of his motion to withdraw his guilty plea, was a hearing on Waters’s June 1, 2005, pro se motion to withdraw his guilty plea, and the circuit court’s December 81, 2012, order denying Waters’s motion to withdraw his guilty plea — although occurring nearly eight years after the filing of the motion — is appealable under § 12-22-10, Ala.Code 1975, and Rule 24, Ala. R.Crim. P.

II.

Waters contends that the circuit court erred when it denied his motion to withdraw his guilty plea because, he says, his trial counsel made a “material misrepresentation ... about what punishment [he] would receive if he agreed to plead guilty.” (Waters’s brief, p. 13.)

Although “a misrepresentation by a defendant’s counsel, if material, may render a guilty plea involuntary,” Ex parte Blackmon, 734 So.2d 995, 997 (Ala.1999) (citing Minor v. State, 627 So.2d 1071 (Ala.Crim.App.1992); and Elder v. State, 494 So.2d 922 (Ala.Crim.App.1986)),

“ ‘ “whether to allow a defendant to withdraw his guilty plea rests within the sound discretion of the trial court, and this Court will not overrule that decision on appeal absent an abuse of discretion.” Thacker v. State, 703 So.2d 1023, 1026 (Ala.Crim.App.1997).’ White v. State, 4 So.3d 1208, 1213 (Ala.Crim.App.2008).”

Andrews v. State, 12 So.3d 728, 730 (Ala.Crim.App.2009).

At the November 19, 2012, evidentiary hearing, the circuit court allowed Waters, through his appointed counsel, to present evidence to support his motion to withdraw his guilty plea. At the hearing, Waters testified that his trial counsel told him “that he had a situation worked out where [Waters] could get a 10 split three, three years — a 10 split three, suspended three, a year on probation, and it would be complete, no jail time.” (R. 9.) Waters’s trial counsel testified, however, that “there was no plea agreement to any certain sentence,” that he explained to Waters that there was no plea agreement, and that he explained to Waters that it would be up to the circuit court to decide what the sentence would be. (R. 15-16.) Thus, the evidence presented at the hearing was conflicting, and the circuit court resolved that conflict in the evidence adversely to Waters. Because the circuit “court had before it evidence that would support an order denying [Waters]’s motion to withdraw his guilty plea ... we cannot say the court abused its discretion in denying [Waters’s motion].” Ex parte Blackmon, 734 So.2d at 997.

Accordingly, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH and BURKE, JJ., concur. KELLUM, J., concurs in the result.

      . This Court takes judicial notice of the records filed with this Court in Waters’s direct appeal and the appeal from the denial of one of his previous Rule 32 petitions. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992); Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987).

      . Waters filed two previous Rule 32 petitions, which the circuit court denied. Waters did not appeal the circuit court’s denial of his first Rule 32 petition. Waters, however, did appeal the circuit court’s denial of his second Rule 32 petition. This Court affirmed the circuit court's denial of Waters’s second Rule 32 petition by an unpublished memorandum issued on April 14, 2006. See Waters v. State (No. CR-05-0882), 978 So.2d 82 (Ala.Crim.App.2006) (table).

      . This Court has frequently held that a defendant who obtains, by way of a Rule 32 petition, the relief of being resentenced may not separately appeal from the order resentencing him; rather, in such circumstances, the only avenue for relief is to file a Rule 32 petition challenging the sentence as illegal. See, e.g., Hart v. State, 939 So.2d 948 (Ala.Crim.App.2005). The reasoning for such a decision, however, is premised on the fact that § 12-22-130, Ala.Code 1975, authorizes an appeal only from a "judgment of conviction” and no other statute authorizes an appeal solely from a resentencing order. As discussed below, however, Waters’s appeal is authorized by statute.

      . As such, a motion to withdraw a guilty plea is denied by operation of law after 60 days pursuant to Rule 24.4, Ala. R.Crim. P.

      . If upon retrial a defendant is convicted again, he may file another direct appeal of the conviction, and he may not assert double jeopardy as a defense to the "second” conviction. See, e.g., Riley v. State (CR-04-0330, Oct. 21, 2005), 954 So.2d 1141 (Ala.Crim.App.2005) (table) (affirming Riley’s conviction on direct appeal by unpublished memorandum after this Court instructed that Riley’s original conviction and sentence be set aside in Riley v. State, 892 So.2d 471 (Ala.Crim.App.2004)).

      . Waters did not contend that he was not represented by counsel when he filed his motion' to withdraw his guilty plea.

      . Waters’s sister, Arzell Johnson, testified that Waters’s trial counsel telephoned her and told her that he had “a deal for [Waters].... this ain’t going to be nothing .but a probation.” (R. 24.)


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    Steven Lavon COBB v. STATE of Alabama.
    CR-12-1723.
    Court of Criminal Appeals of Alabama.
    May 2, 2014.

      J.D. Lloyd, Birmingham, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   WELCH, Judge.

Steven Lavon Cobb was indicted on two counts of unlawful distribution of a controlled substance, violations of § 13A-12-211(a), Ala.Code 1975. Cobb represented himself at the jury trial. He was convicted of both counts as charged. On each conviction the trial court sentenced Cobb to 30 years’ imprisonment, along with a 5-year enhancement because the crime was committed within 3 miles of a school and an additional 5-year enhancement because the crime was committed within 3 miles of a housing project, for a total sentence of 40 years’ imprisonment. The trial court ordered that the sentences were to run concurrently. This appeal follows.

Cobb does not challenge the sufficiency of the evidence, so only a brief recitation of the facts is necessary. Agents with the Butler County Drug Task Force used a confidential informant on two occasions to conduct controlled purchases of crack cocaine from Cobb. The informant was wired with a video and audio recorder, and the controlled purchases were recorded. The agents collected from the informant the items that had been purchased from Cobb; drug testing revealed that the items that had been sold to the informant contained cocaine.

Cobb raises two issues: (1) that the trial court did not advise him of the dangers of self-representation and, thus, he did not knowingly and intelligently waive his right to counsel and (2) that the trial court’s sentencing order is unclear, based on the fact that the Department of Corrections fails to understand that the trial court sentenced him to concurrent terms of 40 years’ imprisonment, and, therefore, he argues, the trial court should clarify his sentences. We need address only Cobb’s first issue.

Cobb states that, on the day of trial when he informed the trial court that he was dissatisfied with his attorney, the trial court told him that a jury would be struck that day and asked him whether he was going to represent himself or have counsel continue to represent him. Cobb argues that when he told the trial court that he would represent himself, the trial court failed to inform him of any of the ramifications of his decision, including the disadvantages of representing himself. He argues, also, that the trial court failed to advise him that he could withdraw his waiver of his right to counsel at any time during the proceedings. As a result, Cobb says, his decision to waive counsel was not made knowingly or intelligently and his convictions must be reversed. We agree.

The record reflects a clear breakdown in the attorney-client relationship between Cobb and his appointed attorney, Samantha Sellers, and Cobb told the trial court that he would rather proceed pro se than with his appointed attorney. The trial' court, therefore, had a duty to determine whether Cobb’s waiver of his right to counsel was knowing and intelligent.

“In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’- waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. The defendant ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (other citations omitted).”

Tomlin v. State, 601 So.2d 124, 128 (Ala. 1991).

Long before Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was decided, the United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), addressed a defendant’s waiver of his right to counsel:

“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the Accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.”

304 U.S. at 465.

Rule 6.1(b), Ala. R.Crim. P., sets out a framework to ensure that a defendant’s waiver of the right to counsel is knowing, intelligent, and voluntary; that rule provides, in relevant part:

“A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the time of accepting a defendant’s waiver of the right to counsel, the court shall inform the defendant that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings.”

The Committee Comments to Rule 6.1 state: “The court is required to inform the defendant that the waiver may be withdrawn since under [Rule 6.1](c) the defendant has the burden of requesting counsel if he later decides to withdraw the waiver.”

In response to Cobb’s argument that the.trial court failed to comply with Faretta, the State first argues that a Far-etta hearing was not required because Cobb received hybrid representation. “With ‘hybrid’ representation, the defendant and counsel are both active in presenting the defense. ‘Standby’ counsel is present to aid a defendant who is presenting his defense pro se. See Upshaw v. State, 992 So.2d 57 (Ala.Crim.App.2007).” Powers v. State, 38 So.3d 764, 768 n. 3 (Ala.Crim.App.2009). The States cites pages 57, 76-94, 110-17, 139, 141-43, 147, 148, 154-57, and 180 of the record in support of its assertion that Sellers “closely and diligently” assisted Cobb. (State’s brief at p. 8.) Sellers’s name does not appear on most of the pages of the record cited by the State, and the only indication on any of those pages that Sellers assisted Cobb in any way is her statement informing the trial court that she was reviewing the closing argument that Cobb had prepared and that she would like five minutes to discuss that argument with him. (R. 148.) The record also reflects that, before jury selection began, Sellers asked the trial court to inform the jury that she was “simply [in] an advisory position and not representing Mr. Cobb actively in this case.” (R. 24.) The trial court informed the jury in its introductory remarks:

“Now, ladies and gentlemen, Mr. Cobb has decided to represent himself in this matter, and I have asked Ms. Sellers to sit with him at counsel table as an advisory attorney only. So she will not be representing him during the case. She will not be trying the case, but she will be there if he wants to seek legal advice from her. So she’s only serving in an advisory role.”

(R. 28.)

Thus, the record reflects that Cobb represented himself at trial and that there was no hybrid representation. The court, the parties, and the jury were aware that Sellers was acting only in an advisory capacity.

The State argues, alternatively, that a formal colloquy was not required and that the record, as a whole, indicated that Cobb’s waiver of counsel and decision to represent himself were made knowingly and intelligently. A formal colloquy between the trial judge and Cobb was not required. See Tomlin v. State, 601 So.2d at 128. Nonetheless, the record must demonstrate, in some form, that Cobb’s waiver was made knowingly, intelligently, and voluntarily. The Alabama Supreme Court in Harris v. State, 27 So.3d 582 (Ala.2008), discussed some of the factors relevant to making this determination:

“In Tomlin [v. State, 601 So.2d 124 (Ala.1991)] this Court discussed six factors a court should weigh in determining whether, under the totality of the circumstances, a defendant has knowingly, intelligently, and voluntarily waived his or her right to counsel. This Court listed the following six factors:
“ ‘ “(1) [Wjhether the colloquy between the court and the defendant consisted merely of pro forma answers to pro forma questions, United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed.2d 760 (1978); (2) whether the defendant understood that he would be required to comply with the rules of procedure at trial, Faretta [v. California, 422 U.S. 806] at 835-36, 95 S.Ct. [2525] at 2541-42 [(1975)]; Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir.1976); (3) whether the defendant had had previous involvement in criminal trials, United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); (4) whether the defendant had knowledge of possible defenses that he might raise, Maynard, supra; (5) whether the defendant was represented by counsel before trial, Hafen, supra; and (6) whether ‘stand-by counsel’ was appointed to assist the defendant with his pro se defense, see Faretta, supra, at 834 n. 6, 95 S.Ct. at 2540 n. 6; Hance v. Zant, 696 F.2d 940, 950 n. 6 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed.2d 1393 (1983), overruled on other grounds, Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985).” ’
601 So.2d at 129 (quoting Tomlin v. State, 601 So.2d 120, 124 (Ala.Crim.App.1989)).”

27 So.3d at 586 n. 3.

Cobb attempted to discharge Sellers before trial; he alleged that Sellers had not kept him apprised of all matters pertaining to his case and that he had never met with Sellers, herself, but had met only Brandon Sellers, Samantha Sellers’s husband and law partner. Cobb was also dissatisfied because, he said, when he contacted Sellers’s law firm to inquire as to whether she was a criminal attorney, he was informed that she was not a criminal attorney. Cobb was told by Sellers and her husband that if he wanted to represent himself he would have to discuss the matter with the trial court. Before the trial court granted Cobb’s request to represent himself, there was much discussion on the record between Cobb, Samantha Sellers, and Brandon Sellers regarding the reasons for the breakdown in the attorney-client relationship. The Sellerses informed the trial court that Cobb had missed many of his scheduled appointments. The trial court interjected on occasion during the discussion of the breakdown. The court reminded Cobb that it had previously told him that the court appoints an attorney and that Cobb could not pick and choose one; the court asked Cobb whether he had attended every scheduled appointment with Sellers; and it reminded Cobb that it had previously told him that pro se motions could not be filed if counsel had been appointed.

The court then addressed Cobb as follows:

“And we are — we’re going to strike a jury with Ms. Sellers or without her today. Now what’s your position? Are you going to represent yourself or do you want counsel to continue to represent you? You don’t get to pick and choose who you’re going to have as counsel if it’s appointed by the Court.”

(R. 18.) Cobb stated that he would represent himself, and the court replied that it would permit Cobb to do so. The court informed Cobb that, if he became disruptive during the trial, he would be removed from the courtroom.

The record reflects that the trial court did not advise Cobb of any of the dangers and disadvantages of waiving his right to counsel, and there was no discussion of whether Cobb understood that he would be required to comply with the rules of procedure, whether he had been involved in previous criminal trials, or whether he had knowledge of possible defenses. Of the six factors discussed in Hams v. State and Tomlin, only two were established — that Cobb had been represented by counsel before trial and that Sellers would be acting as stand-by counsel. The trial court’s warning to Cobb that he would be removed from the courtroom “was more in the nature of how the trial court expected him to comport himself rather than an effort to apprise him of the dangers and disadvantages of self-representation.” Thomas v. State, 8 So.3d 1018, 1023 (Ala.Crim.App.2008). The lack of even a basic inquiry into Cobb’s decision to waive representation by counsel, the absence of any admonition about the dangers and disadvantages of self-representation, and the trial court’s “take it or leave it” statement resulted in a situation that required Cobb either to proceed to trial with appointed counsel, with whom there was clearly a complete breakdown in the attorney-client relationship, or to proceed pro se. Faced with this dilemma, Cobb opted to proceed pro se, but, based on the totality of the circumstances, it is apparent that Cobb’s decision to represent himself was not knowingly, intelligently, or voluntarily made.

Furthermore, even if we were to hold that the record supported a finding that Cobb knowingly, intelligently, and voluntarily waived his right to counsel, the record establishes that the trial court did not, in compliance with Rule 6.1(b), Ala. R.Crim. P., advise him that he could revoke his waiver at any time during the proceedings. In Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995), Hairgrove proceeded pro se, but he had not been advised by the trial court that his waiver of his right to counsel could be withdrawn. We held:

“Nowhere in the record does it indicate that Hairgrove was told that he could withdraw his waiver of his right to counsel, and nothing in the record indicates that he was, in fact, aware that he could do so. The language of Rule 6.1(b), as quoted above, is clear and mandatory. The trial court failed to apprise Hair-grove that he had a right to withdraw his waiver of his right to counsel at any time during the proceeding. Accordingly, the judgment must be reversed, and the case remanded to afford Hairgrove a new trial.”

680 So.2d at 947. Thus, Cobb’s convictions must be reversed on this additional ground.

Finally, the State argues that, even if the trial court failed to adequately ensure that Cobb’s waiver of his right to counsel was made knowingly, intelligently, and voluntarily, and even though the court failed to advise Cobb that he had the right to withdraw the waiver, those errors were harmless because the evidence against Cobb was overwhelming. The State’s argument fails. An invalid waiver of the right to counsel is a jurisdictional defect, and “[a] jurisdictional defect defies analysis by a harmless-error standard and is per se ground for reversal, requiring no consideration of whether the defendant was prejudiced as a result of the error.” Ash v. State, 843 So.2d 213, 219 (Ala.2002), overruled on other grounds, Ex parte Seymour, 946 So.2d 536 (Ala.2006), quoted in Powers v. State, 38 So.3d 764, 768-69 (Ala.Crim.App.2009).

For the foregoing reasons, we reverse Cobb’s convictions and remand this case for further proceedings.

REVERSED AND REMANDED.

WINDOM, P.J., and KELLÚM, BURKE, and JOINER, JJ., concur.

      . After the trial court stated that it would allow Cobb to appear pro se, Brandon Sellers said that he had earlier advised Cobb against proceeding pro se. He said that he had advised Cobb "of his constitutional rights ...[,] basically per a plea agreement form and the explanation of rights,” and that there were "a lot of other evidentiary rights and other things that would take a semester of law school to cover everything, but I did at least try to hit the basics there....” (R. 19.) Sellers’s vague description of the information he provided to Cobb indicates that that information did not satisfy the requirements of Faretta and Rule 6.1(b).


author: KELLUM, Judge.

text:
    Cory James TAYLOR v. STATE of Alabama.
    CR-12-1435.
    Court of Criminal Appeals of Alabama.
    May 2, 2014.

      Connie Murray, Montgomery, for appellant.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   KELLUM, Judge.

Following a bench trial, the appellant, Cory James Taylor, was convicted of unlawful possession of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975. The circuit court sentenced Taylor as a habitual felony offender to 15 years’ imprisonment and ordered Taylor to pay all mandatory fines, fees, and assessments.

The record indicates the following occurred before the bench trial began:

“THE COURT: All right. I had— Cory Taylor had represented this was going to be a plea. We let the jury go. And now it’s changed to a trial. Is that right, [defense counsel]?
“[DEFENSE COUNSEL]: Your Honor, I don’t recall saying that.
“THE COURT: Well, that’s what my records show, that the representation was a plea. All right. So we’re going to try it non-jury since we let the jury go. All right. Thank you.
“All right. Have y’all got your witnesses here?
“[PROSECUTOR]: Yes, sir, Your Honor.
“THE COURT: ... I’ll state for the record again, [defense counsel], my records show that it has been represented that it was going to be a plea. We get here this morning, now you’re saying a trial which he has a right to trial. I dismissed the jury, so we’re going to try it non-jury. Okay?
“[DEFENSE COUNSEL]: Your Honor, I’m going to object to the non-jury trial.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: I don’t recall. I think I did send in a — through the Internet as to what I think each Defendant would do. Do you have yours with you?
“THE DEFENDANT: Excuse me, Judge Price.
“THE COURT: ... Okay. Your objection is noted for the record, [defense counsel],
“All right. Call your first witness.
“THE DEFENDANT: Could I speak first, please?
“THE COURT: Go ahead. If your lawyer wants you to speak.
“THE DEFENDANT: I mean, I want to say something to you.
“THE COURT: No. No. No. Don’t say something to me. If your lawyer wants you to say something, that’s fíne.
“THE DEFENDANT: I never wanted to plea. I always wanted to go to trial. I just wanted to say that for the record.
“THE COURT: All right. Opening statement.”

(R. 4-6.) After the circuit court found Taylor guilty, Taylor filed a “Motion for Judgment of Acquittal or, in the Alternative, Motion for New Trial and Demand for Trial by Jury” in which he stated that he demanded a jury trial but was not tried by jury. The circuit court denied Taylor’s motion, and this appeal followed.

Taylor’s sole contention on appeal is that he was denied his constitutional right to a jury trial when the circuit court conducted a bench trial over Taylor’s objection.

“Defendants in all criminal cases shall have the right to be tried by a jury.” Rule 18.1(a), Ala. R.Crim. P. In certain circumstances, however, a defendant may waive his right to a trial by jury.

“When the defendant is tried in circuit court other than on appeal for trial de novo, waiver of the right to trial by jury must be made by the defendant in writing or in open court upon the record and with the consent of the prosecutor and the court. Before accepting a waiver, the court shall address the defendant personally in open court and shall advise the defendant of his or her right to a trial by jury, and shall ascertain that the waiver is knowing, voluntary, and intelligent....”

Rule 18.1(b)(1), Ala. R.Crim. P. The Committee Comments to Rule 18.1 explain the rationale behind the rule requiring an affirmative waiver:

“Section (a) recognizes a defendant’s fundamental right to a trial by jury. This right has been jealously guarded in Alabama through the Alabama Constitution, by statute, and by case law. Art. I, § 6, Alabama Constitution of 1901, provides in pertinent part ‘That in all criminal prosecutions, the accused has a right ... [to] a speedy, public trial, by an impartial jury of the county or district in which the offense was committed.... ’
“More emphatically, Art. I, § 11, Alabama Constitution of 1901, provides, ‘That the right of trial by jury shall remain inviolate.’ (Emphasis added.) The phrase ‘shall remain inviolate’ has been interpreted to mean that the state is forbidden ‘through the legislative, judicial, or executive department — one or all — from ever burdening, disturbing, qualifying or tampering with this right to the prejudice of the people.’ Gilbreath v. Wallace, 292 Ala. 267, 271, 292 So.2d 651 (1974); Alford v. State, 170 Ala. 178, 54 So. 213 (1910). Finally, Amendment No. 328, § 6.11, to the Alabama Constitution of 1901 (the Judicial Article), illustrates that the right to trial by jury remains inviolate. That section permits the Alabama Supreme Court to promulgate rules of court practice and procedure with the limitation that ‘the right of trial by jury as at common law and declared by Section 11 of the Constitution of Alabama of 1901 shall be preserved to the parties inviolate.’
“Since all felonies must be prosecuted on indictment by the grand jury, it is clear that the trial of all felonies must be by jury unless waived. Art. I. § 6, Alabama Constitution of 1901.”

The record on appeal indicates that Taylor did not affirmatively waive his right to a trial by jury in writing or on the record in open court. Indeed, defense counsel objected to the circuit court’s decision to move forward with a bench trial, and Taylor informed the circuit court that he had always intended to go to trial. Because Taylor did not affirmatively waive his right to a trial by jury in writing or on the record in open court as provided in Rule 18.1(b)(1), the circuit court erred in conducting a bench trial over Taylor’s objection. Accordingly, the judgment of the circuit court is reversed and the cause is remanded with directions that Taylor be afforded a trial by jury in accordance with his request. See Arington v. State, 773 So.2d 500 (Ala.Crim.App.2000); see also Coughlin v. City of Birmingham, 701 So.2d 830 (Ala.Crim.App.1997).

REVERSED AND REMANDED.

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


text:
    Tashomba Rico WILLIAMS v. STATE of Alabama.
    CR-13-0436.
    Court of Criminal Appeals of Alabama.
    May 2, 2014.
    Lonzo Christopher Robinson, Huntsville, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Tashomba Rico Williams, was indicted by a Madison County grand jury for two counts of sexual torture, a violation of § 13A-6-65.1, Ala.Code 1975; two counts of sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975; two counts of kidnapping in the first degree, a violation of § 13A-6-43, Ala.Code 1975; and one count of rape in the first degree, a violation of § 13A-6-61, Ala. Code 1975. On November 18, 2013, Williams entered a “blind plea” of guilty to one count of sexual torture, one count of first-degree sodomy, and one count of first-degree kidnapping; the remaining counts of the indictment were nolle prossed by the State. The circuit court sentenced Williams to 99 years’ imprisonment for each conviction and ordered that the sentences run consecutively. The circuit court ordered Williams to pay $10,000 to the Crime Victims Compensation Fund and court costs.

On November 26, 2013, Williams filed a motion to withdraw his guilty plea. Williams stated no grounds for the withdrawal of his guilty plea. On December 9, 2013, the circuit court conducted a hearing on Williams’s motion to withdraw his guilty plea. At the hearing, Williams testified that he was not informed of the correct sentencing range before he pleaded guilty. The circuit court subsequently entered an order in which it denied Williams’s motion to withdraw his guilty plea. Williams, who was represented by newly appointed counsel at the time, filed a second motion to withdraw his guilty plea in which he argued that he did not have a full understanding of the minimum possible sentence the circuit court could impose. Williams argued that his plea was involuntary because he was informed that his minimum sentence was 10 years’ imprisonment, and that, because the State referenced Williams’s use of a firearm during the plea proceeding, a 20-year minimum sentence was applicable under § 13A-5-6, Ala.Code 1975. The circuit court denied Williams’s motion. This appeal followed.

On appeal, Williams contends that the circuit court erred in denying his motion to withdraw his guilty plea on the ground that his plea was not entered knowingly, voluntarily, and intelligently because, he argues, he was not properly advised of the minimum and maximum sentencing range before he entered his guilty plea. Specifically, Williams contends that his use of a firearm during the commission of the crimes mandated the imposition of the firearm enhancement in § 13A-5-6(a)(4), Ala. Code 1975, and that the circuit court incorrectly informed him that the minimum sentence he could receive was 10 years when, in fact, the minimum sentence he could receive was 20 years under the enhancement provision.

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

“a) Colloquy With Defendant. In all minor misdemeanor cases, the execution óf a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions.”

(Emphasis added.)

It is well established precedent that the circuit court must notify a defendant of the correct sentencing range when the defendant pleads guilty.

“ ‘The Alabama Supreme Court and this Court “have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.” Ex parte Rivers, 597 So.2d 1308, 1309 (Ala.1991). It is well settled, moreover, that “if the appellant’s sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute.” Elrod v. State, 629 So.2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So.2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So.2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So.2d 182 (Ala.Cr.App.1986).’”

Kennedy v. State, 698 So.2d 1174, 1177 (Ala.Crim.App.1997) (quoting Aaron v. State, 673 So.2d 849, 849-50 (Ala.Crim.App.1995) (emphasis added in Kennedy)).

Furthermore, this Court has stated:

“ ‘[T]he Alabama Supreme Court held that “a defendant, prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime” by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So.2d 869 (Ala.Cr.App.1996); Pritchett v. State, 686 So.2d 1300 (Ala.Cr.App.1996); Knight v. State, 55 Ala.App. 565, 317 So.2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975). This holding is supported by Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] and Rule 14.4, Ala. R.Crim. P. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.’ ”

Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998) (quoting Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996)).

The record reflects that, during the guilty-plea colloquy, the following took place:

“THE COURT: All right, do you understand that each of these three cases are Class A felonies and that upon your plea of guilty in each of these three caáes the Court would sentence you to the state penitentiary for a term of not less than 10 years by to no more than 99 years or life?
“[WILLIAMS]: I thought it was up to 99, that was my understanding. Ten to 99 is what you told me.
“THE COURT: The form you signed says 10 years or not more than life or 99 years.
“[WILLIAMS]: Yes, Your Honor.
“THE COURT: All right, and do you understand that the Court could choose to make those three sentences, whatever you get, run consecutively instead of concurrently?
“[WILLIAMS]: Yes, sir, Your Honor.
“THE COURT: What would the State expect the evidence to be in these three cases?
“[PROSECUTOR]: Had this case gone to trial, the State would have proven beyond a reasonable doubt that on or about October 17th into October 18th of 2009, the victim, [R.M.], was washing a car when Mr. Williams and another unidentified male drove past.
“The car stopped, the offender opened the door and pointed a gun at the victim and instructed her to get in the car. They took her against her will at that time.
“The offender then forced the victim to get a hotel room, all the while keeping her either at gun-point or making sure she was aware that he had a gun on her.
“Once in the room, the offender forced the victim to give and receive oral sex, forced her to smoke crack cocaine and inserted the barrel of a gun into the victim’s vagina.
“All of these events took place at gunpoint and all took place in Madison County.”

(R. 9-10.)

After the circuit court informed Williams of the minimum and maximum sentence, Williams pleaded guilty to three Class A felonies. See' § 13A-6-65.1(b), Ala. Code 1975, § 13A-6-4S(c), § 13A-6-63(b), Ala.Code 1975. A person convicted of a Class A felony is subject to a sentence of “life or not more than 99 years or less than 10 years.” § 13A-5-6, Ala.Code 1975. Section 13A-5-6(a)(4), Ala.Code 1975, however, mandates the imposition of a sentence of “not less than 20 years” for a Class A felony in which a firearm or deadly weapon was used.

In Heard v. State, supra, the defendant pleaded guilty to first-degree robbery. In the indictment, the State alleged that the defendant robbed a pawnshop while armed with a handgun and shot the store clerk. During the guilty-plea colloquy, the trial court informed the defendant that the minimum sentence that could be imposed was not less than 10 years. Heard, 687 So.2d at 213. The trial court, however, failed to consider the mandatory enhancement found in § 13A-5-6(a)(4) that required a mandatory minimum sentence of 20 years’ imprisonment. The defendant filed a motion to withdraw his guilty plea that was denied by the trial court. The defendant appealed, arguing that the trial court did not adequately advise him of the maximum and minimum sentence he could receive by entering a guilty plea. This Court agreed, holding that “the erroneous information given to [the defendant] by the trial judge concerning the minimum sentence that could be imposed for a conviction of first degree robbery requires ' reversal.” Heard, 687 So.2d at 213.

This Court has held that the imposition of the firearm enhancement in § 13A-5-6(a)(4) is mandatory. See Love v. State, 681 So.2d 1108 (Ala.Crim.App.1996)(re-manding case for trial court to impose mandatory enhancement set forth in § 13A-6-(a)(4)); Simmons v. State, 675 So.2d 79, 81 (Ala.Crim.App.1995)(holding that the application of the firearm statute is mandatory and that “[t]he court has no choice to obey this statute when a firearm is used to commit a felony”); Clency v. State, 475 So.2d 642 (Ala.Crim.App.1985) (holding that § 13A-5-6(a)(4) is mandatory and the court has no choice but to impose a sentence under this section, if applicable). Although our supreme court has recognized an exception to this rule when the State elects to forgo the application of mandatory fines and other enhancements by way of a plea agreement with a defendant, see Ex parte Johnson, 669 So.2d 205 (Ala.1995), the record on appeal indicates that no such plea agreement existed between the State and Williams in this case and that the imposition of the mandatory firearm enhancement had not been waived.

In this case as in Heard, the circuit court incorrectly informed Williams that the minimum sentence he could receive was 10 years in prison. In order to sustain a ruling that the defendant voluntarily entered a guilty plea, the defendant “ ‘must be advised of the maximum and minimum potential punishment for his crime.’ ” Heard v. State, 687 So.2d at 213 (quoting Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973)). In the instant case, Williams was not informed that he was subject to a mandatory minimum sentence of 20 years’ imprisonment pursuant to § 13A-5-6(a)(4) based on his use of a firearm during the commission of his felony offenses.

Based on the foregoing, we hold that Williams’s guilty plea was involuntary because the circuit court failed to comply with Rule 14.4(a). Accordingly, the judgment of the circuit court is reversed, and this cause is remanded to the Madison Circuit Court so that Williams may have the opportunity to withdraw his guilty plea and to enter another plea after he has been informed of the applicable sentencing range and applicable enhancements.

REVERSED AND REMANDED.

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

      . Because we are reversing the judgment for the reasons discussed above, we pretermit discussion of Williams's contention that the circuit court failed to make any inquiry as to whether there was a factual basis for Williams's guilty plea.


author: WINDOM, Presiding Judge. JOINER, Judge,

text:
    James Samuel Norton KEPNER v. STATE of Alabama.
    CR-12-1513.
    Court of Criminal Appeals of Alabama.
    May 2, 2014.
    Sara Gottlieb Bragdon, Roanoke, for appellant.
    Luther Strange, atty. gen., and Jean A.' Therkelsen, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and BURKE, JJ., concur.

KELLUM, J., concurs in the result.

JOINER, J., concurs in part; dissents in part, with opinion.

JOINER, Judge,

concurring in part and dissenting in part.

Except as to James Samuel Norton Kepner’s conviction for unlawful possession of child pornography, see § 13A-12-192, Ala.Code 1975, I concur with the Court’s decision to affirm, by unpublished memorandum, Kepner’s convictions. Kep-ner’s conviction for unlawful possession of child pornography was based, in part, on an erroneously admitted report of forensic testing and images retrieved from Kep-ner’s cellular telephone as a result of that forensic testing. I disagree with the Court’s conclusion that this error was harmless beyond a reasonable doubt; therefore, I respectfully dissent as to the affirmance of that conviction.


author: JOINER, Judge. BURKE, Judge,

text:
    Steven Craig SEAY v. STATE of Alabama.
    CR-12-1443.
    Court of Criminal Appeals of Alabama.
    May 2, 2014.

      Cecilia A. Pope, Huntsville, for appellant.
    Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   JOINER, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

BURKE, J., concurs in part and concurs in the result in part.

BURKE, Judge,

concurring in part and concurring in the result in part.

Contrary to the majority in its unpublished memorandum, I believe that the trial court’s ruling on the State’s J.E.B. motion was preserved for appellate review. The State made the J.E.B. motion, the issue was then well argued by both sides before the trial court, and the trial court then made a definite ruling that was adverse to the defendant, Steven Craig Seay. The trial court was clearly put on notice of the issue, and a review of the record indicates that Seay was never satisfied with the trial court’s ruling on that issue. (R. 105-123.) Thus, I would have decided this issue on the merits. Therefore, I concur in the result as to this issue. As to the other issue raised by Seay, I concur.

      . J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality”).


text:
    FLORIDA BOARD OF BAR EXAMINERS re C.M.
    No. SC14-2253.
    Supreme Court of Florida.
    Dec. 3, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and CM. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of three years.

2. During the period of probation, the applicant shall:

(a) continue to consult with Thomas Es-posito, M.D., or other licensed mental health provider, at least, quarterly or more frequently as his mental health provider deems necessary;
(b) follow promptly, diligently and completely all instructions by his mental health provider including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant’s consultations for the preceding quarter and shall advise The Florida Bar of the applicant’s continuing ability to engage in the active practice of law;
(d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and
(e)submit quarterly sworn statements . to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), and (d) above.

3.The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1 — 3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant.

4.. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

7.The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution or the filing of any grievance or complaint related to the applicant’s practice of law.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


author: CRENSHAW, Judge.

text:
    John A. ANDERSON, Appellant, v. Joan C. ANDERSON, Appellee.
    No. 2D12-1048.
    District Court of Appeal of Florida, Second District.
    April 2, 2014.
    Rehearing Denied May 8, 2014.
    Allison M. Perry of Florida Appeals <& Mediations, P.A., Tampa; and James P. Knox of James P. Knox, PLLC, Tampa, for Appellant.
    Virginia R. Vetter, Tampa, for Appellee.
   CRENSHAW, Judge.

John Anderson (Former Husband) appeals the trial court’s order granting a temporary reduction in his alimony obligation to Joan Anderson (Former Wife). On appeal, Former Husband raises two issues, the first of which we affirm without further comment. We write only to address a provision in the modification order providing that Former Husband’s monthly alimony obligation will automatically revert from $2000 to the premodification amount of $4000. This increase is conditioned on the relative income levels of the parties returning to what they were at the time of the 2000 final judgment of dissolution and a subsequent 2009 order denying Former Husband’s previous petition for modification. We reverse the modification order to the extent it provides for this sizeable, automatic increase in Former Husband’s alimony obligation.

Generally, “automatic changes in alimony payments based upon the occurrence of future events are ... disfavored.” Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002) (citing Kangas v. Kangas, 420 So.2d 115, 116 (Fla. 2d DCA 1982)); see Voda v. Voda, 122 So.3d 936, 937 n. 1 (Fla. 2d DCA 2013). However, “[pjrospec-tive modifications may be appropriate when they are ‘carefully conditioned upon specifically articulated changes in circumstances which would virtually preclude the possibility of unfairness to either party.’ ” Walker, 818 So.2d at 713 (quoting Kangas, 420 So.2d at 116). Here, there is an absence of such carefully crafted conditions. The relevant portion of the modification order directs as follows:

Should the husband’s income increase back to the point where the relative incomes of the parties return to that of the time of the Final Judgment (and 2009 Order), the original Final Judgment will revert to full force and effect, without the necessity of the former wife filing a petition and/or proving a substantial change in circumstances.

The modification order only conditions the automatic increase in alimony on the parties’ relative income levels, thereby ignoring the myriad factors that may impact Former Husband’s future ability to pay. See Austin v. Fernandez, 898 So.2d 118, 120 (Fla. 3d DCA 2005) (“Austin is entitled to a temporary downward modification in his monthly alimony obligation, sufficient to allow him to retain his assets and get back on his financial feet. When his income increases, the former wife may petition for an upward modification in permanent alimony.”). This automatic increase is especially concerning in light of its size. Cf. Mills v. Mills, 417 So.2d 298 (Fla. 1st DCA 1982) (affirming order providing for relatively modest automatic increases in alimony obligation); Spotts v. Spotts, 355 So.2d 228, 229 (Fla. 1st DCA 1978) (“The final judgment required the husband ... to increase the child support $10.00 per month per child for each $1,000.00 per annum of the husband’s net income which exceeds $20,000.00 .... We find no error in the method used by the trial court in providing for future automatic child support increases. The amount of the increase is small.”). Therefore, the modification order is reversed insofar as it provides for an automatic $2000 increase in Former Husband’s monthly alimony obligation.

Affirmed in part; reversed in part.

NORTHCUTT and BLACK, JJ., Concur.

      . The trial court found, "At the time of the Final Judgment, [Former Wife] made 29% of the parties' income” and “in 2009 she made 28% of the parties' income."


author: WARNER, J. PER CURIAM. WARNER, J.,

text:
    Roberto SOLANO and Marlene Solano, Appellants, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 4D12-1198.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    Opinion on Rehearing Oct. 1, 2014.

      Timothy H. .Crutchfield and Adrian N. Arkin of Mintz Truppman, P.A., North Miami, for appellants.
    Kara Berard Rockenbach and David A. Noel of Methe & Rockenbach, P.A., West Palm Beach, for appellee.
   WARNER, J.

The insureds appeal a final summary judgment in favor of State Farm, their property insurer, on their claim that State Farm failed to pay a property damage claim. The trial court held that, because the insureds had not appeared for an examination under oath as required by the policy provisions, they failed to comply with a condition precedent to suit, resulting in judgment for State Farm and a forfeiture of benefits. The record, however, reveals that disputed issues of fact remain as to the extent of the Solanos’ compliance with the policy provisions. We therefore reverse.

The insureds, Dr. and Mrs. Solano, own residential property insured by State Farm and damaged during Hurricane Wilma in 2005. The policy required the insureds to comply with certain post-loss conditions, including submitting to an examination under oath (“EUO”), submitting sworn proofs of loss, giving timely notice of damages, and exhibiting damages at State Farm’s request.

Although State Farm made payments in 2006, the Solanos hired a public adjuster in 2009 who asked State Farm to reopen the claim. The adjuster submitted a claim in excess of $200,000. State Farm did inspect the property with the adjuster and made an additional payment for some damage, but notified the Solanos that it would continue to investigate the other damage claims. Thereafter, the adjuster submitted several additional sworn proofs of loss, increasing the amount of damage claimed.

After the third sworn proof of loss, State Farm asked the Solanos to submit to an EUO. It also asked that the adjuster submit to examination if the Solanos intended to rely on his knowledge and opinions. The Solanos appeared for the EUO and brought a fourth proof of loss.

Dr. Solano was examined under oath’ and deferred almost entirely to the adjuster as to the type and extent of damages, as well as its cost. He did relate the damage he saw after the hurricane, as well as the progress of the repairs. He also deferred to his wife to answer a few questions.

At the end of Dr. Solano’s interview, he refused to allow his wife to submit to an EUO that day, because he felt that examination might put her under too much mental stress. The adjuster also refused to give a statement under oath, although he said he might do so in the future. He took the position that State Farm could not compel him to provide a sworn statement.

Later, State Farm informed the Solanos that they had deprived it of a meaningful EUO and asked them to present any additional documents or information regarding their claim. State Farm also asserted the Solanos had failed to provide a proper sworn proof of loss. The adjuster responded for the Solanos, asking why the proofs of loss were deficient. State Farm eventually responded, explaining which documents it still needed and why it believed the proofs of loss were deficient.

The Solanos thereafter retained counsel who wrote to State Farm in July 2010, submitting a fifth proof of loss and demanding an appraisal. Counsel offered to submit Mrs. Solano to an EUO. State Farm accepted the fifth proof of loss together with documentation as complying with the policy, but asserted an appraisal was premature until it had investigated the claim.

The parties scheduled Mrs. Solano’s EUO for October 12, 2010. State Farm asked to examine her and the adjuster, as well as to receive the documentation requested in its letters. Five days before the scheduled EUO, the Solanos’ counsel filed a complaint against State Farm to compel an appraisal.

Mrs. Solano appeared for the EUO on October 12th and was prepared to testify, but State Farm’s counsel, citing the filing of the lawsuit and pending litigation, declined to proceed with the EUO.

After State Farm moved to dismiss the original complaint, the Solanos filed an amended complaint alleging State Farm had breached the policy by denying coverage. The amended complaint did not request appraisal.

State Farm moved for summary judgment, arguing the Solanos had failed to comply with their post-loss obligations before filing suit, in violation of the policy’s “no action” clause. Specifically, State Farm argued the Solanos failed to appear for a “full, complete and meaningful” EUO and did not provide all the requested documentation. The Solanos countered with affidavits from the adjuster and Dr. Solano detailing the information that State Farm had been provided regarding the damages, as well as countering the allegations in State Farm’s affidavits.

Following the hearing, the court issued an order granting summary judgment for State Farm. The court made several findings that the Solanos had failed to submit to a meaningful EUO which, as a condition precedent, precluded recovery under the policy, citing Jacobs v. Nationwide Mutual Fire Insurance Co., 2002 WL 34543222 (S.D.Fla. Sept. 10, 2002), and Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995). The court later entered final judgment for State Farm. After the denial of a motion for rehearing, the Solanos appeal the final judgment.

An order granting summary judgment is reviewed de novo. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005). In the context of summary judg-ihent, an appellate court reviews a trial court’s factual findings to make sure they are supported by undisputed evidence; a genuine dispute of material fact will preclude summary judgment. Kroener v. Fla. Ins. Guar. Ass’n, 63 So.3d 914, 916 (Fla. 4th DCA 2011); see also Progressive Express Ins. Co. v. Camillo, 80 So.3d 394, 399 (Fla. 4th DCA 2012) (“A trial court may not weigh the evidence or judge the credibility of witnesses in arriving at summary judgment.”).

We have held that an EUO requirement in an insurance policy is a condition precedent to recovery, and “[a]n insured’s refusal to comply with a demand for an [EUO] is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy.” Goldman, 660 So.2d at 303; see also Edwards v. State Farm Fla. Ins. Co., 64 So.3d 730, 732-33 (Fla. 3d DCA 2011) (relying on Goldman and affirming summary judgment for insurer where insured did not submit any requested documents and failed to submit to an EUO).

Although “[a] total failure to comply” with a condition precedent can preclude an insured from recovering, in a case like this where an insured cooperates to some extent, a fact question remains as to whether the condition is breached to the extent of denying the insured any recovery under the policy. Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). In Haiman, this court reversed an order granting summary judgment for the insurer where the insureds had at least partially complied with a post-loss condition. This court distinguished Goldman, because in Goldman the insured refused to make himself available for any examination prior to filing suit. In Haiman, the insured had appeared for the EUO and brought substantial documentation, although apparently not all the documents demanded by the insurer. We said: “Whether the failure to produce documents requested is a material breach would be a question of fact for the jury.” Id.; see also Lewis v. Liberty Mut. Ins. Co., 121 So.3d 1136, 1137 (Fla. 4th DCA 2013) (finding EUO requirement was barred by PIP statute but, even if it was not, “we would also reverse the final summary judgment, because an issue of fact remained as to whether [the insured’s] refusal to attend the EUO, under the conditions required by [the insurer], was unreasonable”); Makryllos v. Citizens Prop. Ins. Corp., 103 So.3d 1032, 1034 (Fla. 2d DCA 2012); Sunshine State Ins. Co. v. Corridori, 28 So.3d 129, 131 (Fla. 4th DCA 2010); Schnagel v. State Farm Mut. Auto. Ins. Co., 843 So.2d 1037, 1038 (Fla. 4th DCA 2003).

Here, there was not “a total failure to comply” by the Solanos. Dr. Solano appeared for his sworn statement, gave answers to some of the questions posed, and deferred to the adjuster for most of the information and to his wife on others. He arranged for the adjuster to attend the EUO, but the adjuster on his own refused to provide a sworn statement. State Farm did not show that the insureds could compel the adjuster to provide a sworn statement. Nevertheless, the adjuster did furnish a significant amount of documentation with the various sworn proofs of loss, the fifth of which State Farm affirmatively accepted as adequate. In addition, State Farm representatives actually inspected the property, going over the claims with the adjuster. A question of fact remains as to whether there was sufficient compliance with the cooperation provisions of the policy to provide State Farm with adequate information to settle the loss claims or go to an appraisal, thus precluding a forfeiture of benefits owed to the insureds.

We therefore conclude that the trial court erred in granting summary final judgment in favor of State Farm, as material issues of fact remain. We reverse and remand for further proceedings.

FORST and KLINGENSMITH, JJ., concur.

On Motion for Rehearing

PER CURIAM.

Appellee’s motion for rehearing is denied.

FORST and KLINGENSMITH, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

In its motion for rehearing, State Farm contends that our opinion conflicts with Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995). In Goldman, we held that a policy provision requiring the insured to submit to an examination under oath (EUO) was a condition precedent. Id. at 304. Where the insured refused to submit to the examination prior to filing suit, the insured failed to comply with a condition precedent and forfeited his insurance coverage. Id. at 305-06. We distinguished Goldman in Haiman v. Federal Insurance Co., 798 So.2d 811 (Fla. 4th DCA 2001), by concluding that while a total failure to comply with policy provisions might amount to a breach precluding recovery, as in Goldman, “If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Haiman, 798 So.2d at 812 (quoting Diamonds & Denims, Inc. v. First of Georgia Ins. Co., 203 Ga.App. 681, 417 S.E.2d 440, 441-42 (1992)). This case is more like Haiman than Goldman.

Moreover, I question the continued viability of Goldman’s, analysis that the requirement to submit to an EUO is a “condition precedent,” based upon the supreme court’s analysis in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So.3d 1071 (Fla.2014). In Curran, the court considered whether an insured’s failure to appear for a compulsory medical examination (“CME”), which was required in an uninsured motorist insurance policy, constituted the breach of a condition precedent, when the policy also provided that no action could be brought against the insurer until the insured complied with all terms of the policy. Id. at 1072-73. The court held that the policy provision was not a condition precedent. Id. at 1076. The court explained:

The terms “condition precedent” and “condition subsequent” are defined as follows in Florida:
A condition precedent is one that is to be performed before the contract becomes effective. Conditions subsequent are those that pertain not to the attachment of the risk and the inception of the policy but to the contract of insurance after the risk has attached and during the existence thereof. A condition subsequent presupposes an absolute obligation under the policy and provides that the policy will become void, or its operation defeated or suspended, or the insurer relieved wholly or partially from liability, upon the happening of some event or the doing or omission of some act.
31 Fla. Jur.2d Insurance § 2686 (2013) (footnotes omitted).

Id. at 1078, 789 N.W.2d 1 (footnote within original quote). As part of its reasoning, the court concluded that the insurance company’s interpretation of the “no action” clause would turn every obligation of the insured into a condition precedent, which was contrary to the court’s own precedent:

[State Farm’s argument that] the “no action” language in the policy applies to every term of the policy, regardless of whether the insured’s duties are capable of being performed prior to filing an action against the insurer. Consequently, adherence to State Farm’s argument would turn every duty, including the duty to assist and cooperate, considered a condition subsequent in [Bankers Insurance Co. v.] Macias, [475 So.2d 1216 (Fla.1985)] into a condition precedent to coverage and suit. Macias, 475 So.2d at 1218 (failure to cooperate is a condition subsequent and it is proper to place the burden of showing prejudice on the insurer).

Id. at 1078-79, 789 N.W.2d 1 (footnotes omitted). The court rejected this interpretation and concluded that the clause requiring a CME was not a condition precedent, meaning “an insured’s breach of this provision should not result in post-occurrence forfeiture of insurance coverage without regard to prejudice.” Id. at 1079, 789 N.W.2d 1.

Certainly, the Curran analysis and Goldman are inconsistent. Like CMEs conducted under uninsured motorist policies, EUOs conducted under homeowner insurance policies are conducted after the policy has gone into effect, in the event of a loss allegedly covered by the policy. Furthermore, the “Suits Against Us” clause relied upon by State Farm in this case, like the “no action” language at issue in Curran, applies to every provision in the policy.

Curran does not address Southern Home Insurance Co. v. Putnal, 57 Fla. 199, 49 So. 922 (1909), which State Farm also contends is in conflict with our opinion. Putnal involved a similar “no action” provision in a fire policy and the failure of an insured to appear for an examination on the loss. However, as is so common in these much older cases from our legal history, the case proceeded on a complicated analysis of pleas, demurrers, and replications, terms foreign to our modern jurisprudence. The court appears to have construed this provision as valid and binding on the insured, concluding that any action brought prior to compliance was “premature.” Id. at 932. This holding may be consistent with Curran, as the court in Cwran also noted that the policy’s “no action” action clause would lead to a conclusion that the filing of an action prior to compliance with all policy terms would make the action premature, usually cured by abating the action, rather than a forfeiture of benefits. Curran, 135 So.3d at 1079. The opinion in Putnal never declares that the “no action” provision makes the EUO a condition precedent.

The Fifth District certified conflict with Goldman in State Farm Mutual Automobile Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011). Because the supreme court answered the certified question, also posed by the appellate court, it did not specifically reach the conflict with Goldman. Nevertheless, its reasoning and the reasoning in Goldman are inconsistent, and it would be this court’s duty to follow the opinions of the supreme court.

Cases involving the interpretation of the “no action” clause arise frequently. I would hope that in a proper case the supreme court would provide additional guidance on this issue. If our decision is contrary to Putnal, then State Farm may have that vehicle to obtain supreme court review.

      . We do not address State Farm Mutual Automobile Insurance Co. v. Curran, 135 So.3d 1071 (Fla.2014). Although in State Farm Automobile Insurance Co. v. Curran, 83 So.3d 793 (Fla. 5th DCA 2011), the Fifth District certified conflict with our decision in Goldman, as well as certifying a question of great public importance, the supreme court declined to address the conflict and decided the case based upon the question presented. Curran, 135 So.3d at 1076 n. 8. While the issue addressed in Curran is similar to the issue addressed here, the court’s analysis hinges on matters which are not present in this case.

       The Supreme Court of Nebraska has given examples of conditions precedent as the obligation of the applicant to satisfy the requirements of insurability, be in good health for life and health insurance policies, pay the required premium, and answer all questions in the application to the best of the applicant's knowledge and belief. D & S Realty, Inc. v. Market Ins. Co., 280 Neb. 567, 789 N.W.2d 1, 9-10 (2010).


author: LAGOA, J.

text:
    CENTRAL MORTGAGE COMPANY, Appellant, v. Linda M. CALLAHAN, et al., Appellees.
    No. 3D13-1672.
    District Court of Appeal of Florida, Third District.
    July 16, 2014.

      Brock and Scott, PLLC, and Shaib Rios, Fort Lauderdale, for appellant.
    Paige Law Group, P.A., and Robert E. Paige, for appellees Old Cutler Lakes by the Bay Community Association, Inc., Windy Pointe Homeowners Association, Inc., and Windy Pointe Condominium Association, Inc.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Central Mortgage Company (“Central”) appeals from a final order denying its post-judgment motion for a determination of assessments due to Old Cutler Lakes by the Bay Community Association, Inc., (“Old Cutler”), Windy Pointe Homeowners Association, Inc., (“Windy Point H.O.A.”), and Windy Point Condominium Association Inc., (“Windy Point Condo”) (collectively, the “Associations”). Because the trial court lacked jurisdiction to entertain the motion, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

In 2009, Central filed an action to foreclose a mortgage after the borrowers defaulted on the underlying loan. Central named the borrowers and the Associations as defendants. In its Answer, the Associations asserted entitlement to assessments pursuant to sections 718.116 and 720.3085, Florida Statutes (2013).

On October 4, 2011, the trial court entered final judgment of foreclosure in favor of Central. Paragraph 4 of the final judgment states that Central’s lien is “superior in dignity to any right, title, interest or claim of the defendants” with the exception of any assessments that are superior pursuant to section 718.116. The trial court reserved jurisdiction “to .enter further orders that are proper, including, without limitation, writs of possession and deficiency judgments.”

Central was the successful bidder for the property at auction and was issued a certificate of title. Upon receiving title, Central requested estoppel letters from the Associations to determine past due assessments, late charges, costs and attorney’s fees. Old Cutler claimed $6,186.40, with assessments dating back to July 2008; Windy Pointe H.O.A. claimed $9,072.40, with assessments dating back to January 2010; and Windy Point Condo claimed $11,975.36, with assessments dating back to September 2008.

On March 13, 2013, Central filed a post-judgment motion seeking a determination of the amount due to the Associations. The motion was filed outside the ten-day period provided by Florida Rule of Civil Procedure 1.530(g). The trial court denied the motion, and this appeal ensued.

II. ANALYSIS

The issue before us is one of first impression. Specifically, whether a trial court’s inherent jurisdiction to enforce its judgment includes the authority to determine statutory assessments where the time to alter, modify, or vacate the judgment has elapsed and the judgment provides for only a general reservation of jurisdiction.

“In a foreclosure case, after entry of a final judgment and expiration of time to file a motion for rehearing or for a new trial, the trial court loses jurisdiction of the case ... unless jurisdiction was reserved to address that matter or the issue is allowed to be considered post-judgment by statute or under a provision of the Florida Rules of Civil Procedure.” Ross v. Damas, 31 So.3d 201, 203 (Fla. 3d DCA 2010) (citation omitted). It is undisputed that there is no specific reservation to determine the amount of any assessments owed to the Associations.

Central argues that notwithstanding Damas, the trial court had inherent jurisdiction to adjudicate its post-judgment motion for assessments. In support of its argument, Central cites Huml v. Collins, 739 So.2d 633, 634 (Fla. 3d DCA 1999), where this Court held “a trial court always has the inherent jurisdiction to enforce its previously entered orders.” Central’s reliance on Huml is misplaced; Huml is a dissolution of marriage case, and “[cjourts retain jurisdiction to enforce dissolution judgments with or without a specific reservation of such power.” Kennedy v. Kennedy, 638 So.2d 577, 577 (Fla. 3d DCA 1994); see also Work v. Provine, 632 So.2d 1119, 1121 (Fla. 1st DCA 1994); Seng v. Seng, 590 So.2d 1120, 1121 (Fla. 5th DCA 1991).

Moreover, the post-judgment motion at issue in Huml pertained to post-judgment enforcement of the property rights that had been specifically adjudicated and set forth in the final judgment. Huml, 739 So.2d at 634; see also Kennedy, 638 So.2d at 577 (affirming an enforcement order and holding that the trial court had jurisdiction, “[bjecause the appealed order pertains to property distributed by the dissolution judgment”); Gutjahr v. Gutjahr, 368 So.2d 93, 94 (Fla. 3d DCA 1979) (affirming a trial court’s post-judgment order which “related to securities which the judgment had dealt with as being the wife’s property”).

In the instant case, entitlement to assessments was neither litigated nor adjudicated. The final judgment of foreclosure does not state what amount, if any, was due to the Associations. Rather, paragraph 4 of the final judgment solely establishes the priority of liens and provides that Central’s lien is superior to the Associations’ liens, except with respect to assessments under section 718.116. Simply put, when Central filed its post-judgment motion, there was nothing for the trial court to enforce. Moreover, a court “does not have the power to impose upon a party a new duty not previously adjudicated.” Superior Uniforms, Inc. v. Brown, 221 So.2d 214, 215 (Fla. 3d DCA 1969).

Central also argues that based on paragraph 12 of the final judgment, the trial court retained jurisdiction to determine the amount of assessments due. Central claims paragraph 12’s language is sufficiently broad to permit the trial court to adjudicate assessments, and that adjudicating assessments is analogous to adjudicating “collateral and independent” claims, e.g., prevailing-party attorney’s fees, which may be adjudicated post final judgment. We find both of Central’s arguments without merit.

This Court has held that a reservation of jurisdiction must be specific. See Harrell v. Harrell, 515 So.2d 1302, 1304 (Fla. 3d DCA 1987) (stating that once a trial court enters a final judgment and the time for filing post-trial motions has expired, a trial court may not entertain post-judgment motions absent a rule to the contrary, “unless it specifically retained jurisdiction to do so in its final judgment”).

In Ross v. Wells Fargo Bank, 114 So.3d 256, 257 (Fla. 3d DCA 2013), the trial court reserved jurisdiction in a clause identical to paragraph 12 of the final judgment in the instant case. Subsequent to final judgment, Wells Fargo filed a motion for leave to file a supplemental complaint to re-foreclosure and add Ross as a defendant. The trial court granted Wells Fargo’s motion, then entered and subsequently vacated an order dismissing the re-foreclosure for lack of prosecution. Ross appealed, arguing the trial court lacked “subject-matter jurisdiction to permit the post-judgment re-foreclosure action to proceed.” Id. This Court agreed that the trial court lacked jurisdiction, stating “[t]he final judgment did not retain jurisdiction to allow for a supplemental complaint to add an omitted party post-judgment,” id., and reversed the trial court’s order.

As in Wells Fargo Bank, paragraph 12 of the final judgment in the instant case contained a general reservation of jurisdiction, and did not specifically reserve jurisdiction to determine the amount of assessments due pursuant to sections 718.116 or 720.3085. It merely retained jurisdiction to enforce — via writs of possession and deficiency judgments — the final judgment entered in the matter. As such, we find that the trial court properly concluded that it lacked subject-matter jurisdiction to determine assessments, and did not err in denying the motion.

For the reasons discussed, we affirm the trial court’s order denying' Central’s post-judgment motion for a determination of assessments due to the Associations, as the trial court properly concluded it lacked jurisdiction to entertain the motion.

AFFIRMED.

      . The Supreme Court of Florida subsequently amended Rule 1.530(g) to provide that the motion must be served no later than fifteen days after entry of the judgment. In re Amendments to Fla. Rules of Civil Procedure, 131 So.3d 643, 651 (Fla.2013) (amended rule effective January 1, 2014).

      . ''[Wjhether a court has subject matter jurisdiction involves a question of law that is reviewed de novo.” Nissen v. Cortez Moreno, 10 So.3d 1110, 1111 (Fla. 3d DCA 2009).

      . Specifically, the trial court’s general reservation clause in Wells Fargo Bank stated as follows: "The Court retains jurisdiction of this action to enter further Orders that are proper including, without limitation, writs of possession and deficiency judgments.”


author: PER CURIAM.

text:
    Bobby D. BIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3624.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.

      Bobby D. Biggs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.