text:
    Michael Tyrone CHAPPELL, Sr. v. Angela McGraw CHAPPELL.
    2120375.
    Court of Civil Appeals of Alabama.
    Feb. 7, 2014.

      Michael T. Chappell, Sr., pro se.
    Christopher R. East of Sasser, O’Rear & East, LLC, Montgomery, for appellee.
   DONALDSON, Judge.

Michael Tyrone Chappell, Sr. (“the husband”), appeals from a judgment divorcing him and Angela McGraw Chappell (“the wife”). Because the divorce judgment does not adjudicate the husband’s counterclaims against the wife, the divorce judgment is not a final, appealable order. Accordingly, we dismiss the appeal.

Facts and Procedural History

The wife filed a complaint for a divorce on August 2, 2012, in the Montgomery Circuit Court (“the trial court”). On September 24, 2012, the husband, an incarcerated inmate in a federal correctional facility, requested the appointment of a public defender to appear in court for him. The trial court denied the request, stating that “such appointments are not available in Domestic Relations matters.” On October 12, 2012, the husband, acting pro se, filed an answer and a counterclaim against the wife, seeking compensation in the amount of $50,000 for his personal property that he alleged the wife had “lost” or had “stolen” from his house and then sold or pawned. Additionally, he asserted a third-party claim against State Farm Insurance Company, the company that had allegedly insured the contents of the husband’s house, seeking compensation in the amount of $50,000. The husband also asserted an additional counterclaim against the wife and third-party claims against OBGYN Associates, Gift of Life, and Cindy Pierce. The husband claimed that those parties had conspired to violate privacy laws, which, he said, caused the revocation of his release on bond for pending federal criminal charges and, in turn, led to the wife’s divorce filing. The wife filed an answer to the husband’s counterclaims, denying each of the allegations.

On November 16, 2012, the husband filed a motion stating that he had entered into a contract with legal counsel to represent him in the proceedings, that he would be amending his pleadings to provide legal authority concerning the alleged civil conspiracy, that he was now seeking $50,000,000 in damages from the third-party defendants, and that he was requesting a jury trial. The husband filed a motion to amend his pleadings on January 15, 2013, to add a third-party claim against J.P. Morgan Chase Bank. In that proposed amendment, he alleged that J.P. Morgan Chase Bank, as the mortgagee on his house, had conspired with the wife to deprive him of his personal property. On January 16, 2013, the trial court denied the husband’s motion to amend.

A trial was scheduled to be held on February 11, 2013. On February 10, 2013, counsel entered an appearance on behalf of the husband. The next day, the trial court held a hearing at which the wife, her counsel, and the husband’s counsel were present. The record shows that the husband was incarcerated in federal custody at that time. The husband’s counsel asked for the proceedings to be continued, but the request was denied. The wife testified to the parties’ irreconcilable differences. She recounted how the husband had been physically violent toward her and how he had threatened her, her mother, and her brother. She testified that she was seeking a restraining order or some other form of protection in the divorce judgment out of fear for her safety once the husband is released fi-om prison. She stated that, after the husband had been incarcerated, she moved much of the personal property in the marital residence to a storage unit. According to the wife, all the husband’s personal property, aside from two rifles she had pawned, remained in the storage unit, in the possession of their children, or in the husband’s office building. She testified that she was not aware of a coin collection owned by the husband, and she denied selling any coin collection.

On February 11, 2013, the trial court entered a divorce judgment, stating: “THIS CAUSE comes before the Court upon the Complaint for Divorce filed by the [wife], and the Answer and Counterclaim filed by the [husband].” The judgment dissolved the parties’ marriage and divided the parties’ personal property. The judgment included an award of half the property in the storage unit to the husband and the other half to the wife. A provision in the divorce judgment expressly restrained and enjoined the parties from contacting each other for the purpose of harassment, intimidation, or assault.

Service of process on the husband’s third-party complaint against State Farm Insurance Company was not completed until February 13, 2013, two days after the entry of the divorce judgment. Service of process on the husband’s third-party complaints against OBGYN Associates and Gift of Life were completed on February 14, 2013, three days after the entry of the divorce judgment. The record before us does not indicate that third-party defendant Cindy Pierce was ever served with process.

On March 20, 2013, the husband, acting pro se, appealed to this court. On appeal, the husband contends that the trial court erred by not appointing him an attorney, by denying his motion to add a claim against J.P. Morgan Chase Bank, by not issuing subpoenas on his behalf, by denying his motion for a continuance, and by not taking action on his counterclaims and third-party claims.

Discussion

We must first determine as a threshold matter whether this court has jurisdiction over the trial court’s divorce judgment before this court can consider the issues raised on appeal. See Blythe v. Blythe, 976 So.2d 1018, 1019 (Ala.Civ.App. 2007) (citing Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006), and Winecoff v. Compass Bank, 854 So.2d 611, 614 (Ala.Civ.App.2003)). “[Ojrdinarily, we cannot exercise jurisdiction over an appeal from a nonfinal judgment.” Blythe, 976 So.2d at 1019. “ ‘ “[T]he question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” ’ ” Yar-brough v. Yarbrough, 142 So.3d 637, 639 (Ala.Civ.App.2013) (quoting Parker v. Parker, 946 So.2d 480, 485 (Ala.Civ.App.2006), quoting in turn Hubbard v. Hubbard, 935 So.2d 1191,1192 (Ala.Civ.App.2006)).

“ ‘ “ ‘An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment.’ ” ’ ” Pike v. Reed, 3 So.3d 201, 203 (Ala.Civ.App.2008) (quoting Busby v. Lewis, 993 So.2d 31, 34 (Ala.Civ. App.2008), quoting in turn Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003), quoting in turn Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ. App.2002)). Rule 54(b), Ala. R. Civ. P., provides an exception to this rule of finality when a case involves multiple parties or claims. Under that exception, a trial court may certify a judgment as final as to one or more, but not all, of the claims, but “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Id. The trial court in this case did not certify the divorce judgment as final under Rule 54(b), and the judgment does not specifically address the husband’s counterclaims against the wife or the husband’s claims against third parties. Therefore, to ascertain the finality of the divorce judgment, we must determine whether the trial court adjudicated each of the husband’s claims.

First, we consider the husband’s third-party claims. Service of process was completed on State Farm Insurance Company, OBGYN Associates, and Gift of Life after the date the divorce judgment was entered. Cindy Pierce apparently was never served. The divorce judgment does not expressly mention the claims against these third parties. However, pursuant to Rule 4(f), Ala. R. Civ. P.,

“[w]hen there are multiple defendants and the summons ... and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment.”

“Under Rule 4(f), service on the other defendants must be completed, not merely attempted, before it can be said the pending action involves other active defendants.” Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984). Because service of process on State Farm Insurance Company, OBGYN Associates, Gift of Life, and Cindy Pierce had not been completed at the time the divorce judgment was entered, those parties are not considered to be “active” defendants as of that date. Consequently, the lack of adjudication regarding those third-party claims does not preclude the finality of the divorce judgment under Rule 4(f) for purposes of determining appellate jurisdiction.

We must further consider, however, whether the judgment is final for purposes of appellate jurisdiction with respect to the husband’s counterclaims against the wife. At the time of the divorce trial, the husband had asserted a counterclaim against the wife regarding the disposition of his personal property and a counterclaim alleging that she had conspired with third parties to violate privacy laws, thereby causing his bond to be revoked. Neither of those claims had been dismissed or severed as of the date of the trial and the resulting judgment. The husband’s attorney raised the husband’s claims against the wife regarding his personal property at the beginning of the trial. In her testimony, the wife admitted to pawning two of the husband’s rifles but denied selling the husband’s coin collection. The divorce judgment states that the cause was before the trial court, in part, on the husband’s counterclaim, allocates the personal property located in the storage unit, and assigns any other property not specified in the judgment to the party in possession or control of the property. The divorce judgment does not, however, explicitly contain a ruling addressing the husband’s counterclaim against the wife regarding the personal property, and it does not address the counterclaim containing the conspiracy allegations. Based on the record and judgment before us, we cannot conclusively determine that the trial court intended to adjudicate all the husband’s counterclaims in the divorce judgment.

We express no opinion as to the merits of any of the husband’s pending claims that were not adjudicated at the time the divorce judgment was entered. We note only that those claims were not severed and remained pending and that “ ‘[a] final judgment that will support an appeal is one that puts an end to the proceedings between the parties to a case and leaves nothing for further adjudication.’” Ex parte Green, 58 So.3d 135, 145 (Ala.2010) (quoting Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001), citing in turn City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981)). For the reasons stated above, the divorce judgment is not a final judgment that we can properly consider on appeal. Accordingly, the appeal is dismissed for lack of jurisdiction.

The wife’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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

      . The trial court denied the husband’s motion to amend his pleadings to include a third-party claim against J.P. Morgan Chase Bank. The claim against J.P. Morgan Chase Bank, thus, is not relevant to our determination as to the finality of the divorce judgment.

      . The divorce judgment uses the singular term although the husband had asserted more than one counterclaim against the wife.

      . Because we lack jurisdiction, we do not address any of the other issues raised by the husband, including the propriety of the denial of his motion to amend the pleadings to assert a claim against J.P. Morgan Chase Bank.


source: Caselaw Access Project

author: KELLUM, Judge. JOINER, Judge,

license: Public Domain

text:
    Nathaniel SHAW v. STATE of Alabama.
    CR-12-0674.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.
    Rehearing Denied Dec. 13, 2013.
    Certiorari Denied Feb. 14, 2014 Alabama Supreme Court 1130384.

      Nathaniel Shaw, pro se.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   KELLUM, Judge.

Nathaniel Shaw appeals the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 2009 convictions for one count of first-degree theft of property, one count of unlawful possession of cocaine, one count of trafficking in stolen identities, and four counts of second-degree criminal possession of a forged instrument, and his resulting sentences, as a habitual offender, of 27 years’ imprisonment for each of the first-degree-theft and trafficking-in-stolen-identities convictions, and 10 years’ imprisonment for the possession-of-cocaine conviction and each of the possession-of-a-forged-instrument convictions. This Court affirmed Shaw’s convictions and sentences on appeal in an unpublished memorandum issued on April 16, 2010. Shaw v. State (No. CR-08-1340), 77 So.3d 624 (Ala.Crim. App.2010) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on December 10, 2010.

Shaw filed this, his first, Rule 32 petition on August 8, 2012. In his petition, Shaw alleged:

(1) That the trial court lacked jurisdiction to render the judgments or to impose the sentences because, he said, he was incompetent to stand trial;
(2) That his sentences violated double-jeopardy principles because, he said, he was originally sentenced to 27 years’ imprisonment for the first-degree-theft and trafficking-in-stolen-identities convictions, and to 5 years’ imprisonment for the possession-of-cocaine conviction and each of the possession-of-a-forged-instrument convictions, with all the sentences ordered to run concurrently, but that four days after the original sentence was imposed, the trial court increased his 5-year sentences to 10 years’ imprisonment and ordered those sentences to run consecutively to the two 27-year sentences, thus resulting in his being punished twice for each of his convictions;
(3) That he was denied his right to counsel of choice when, he said, the trial court refused his repeated requests to fire retained trial counsel and hire new counsel;
(4) That his convictions for first-degree theft and four counts of possession of a forged instrument violated double-jeopardy principles because, he said, the currency that formed the basis of the theft charge was obtained as a result of the possession-of-a-forged-instrument charges and all five charges arose from the same act or omission;
(5) That the evidence was insufficient to sustain his conviction for trafficking in stolen identifies because, he said, the State failed to present evidence of five or more identification documents of the same person or identifying information of five or more separate persons as required by § 13A-8-193(b), Ala.Code 1975;
(6) That his convictions for trafficking in stolen identities and four counts of possession of a forged instrument violated double-jeopardy principles because, he said, the persons named as part of the trafficking-in-stolen-identities charge were the same persons that formed the basis of the four possession-of-a-forged-instrument charges;
(7) That his indictment was multipli-cious “because it renames the single offense of possession of forged instruments as theft of property and/or trafficking in stolen identities” (C. 37); and
(8) That he was denied the effective assistance of counsel both at trial and on appeal because, he said, trial and appellate counsel did not raise the above issues at trial or on appeal.

Shaw attached several exhibits to his petition to support his claims.

On October 4, 2012, Shaw filed a motion for the appointment of counsel, which the circuit court denied on October 5, 2012. On November 20, 2012, Shaw filed a motion requesting that the circuit court expedite the proceedings and schedule an evi-dentiary hearing, which the circuit court denied on November 27, 2012. On or about December 17, 2012, the State filed an answer to Shaw’s petition, arguing that each of Shaw’s claims was meritless. On December 18, 2012, the circuit court issued an order summarily dismissing Shaw’s petition. In its order, the circuit court found that claim (1) and that part of claim (8) regarding ineffective assistance of trial counsel, as set out above, had been “addressed extensively on his direct appeal” and it “decline[d] to replow these grounds.” (C. 108.) The circuit court then stated that “[t]he only colorable issue raised” in the petition was claim (2), as set out above, and the court found that claim to be meritless. (C. 108.) The court did not specifically address in its order claims (3) through (7), as set out above. On January 4, 2013, Shaw filed an “objection” to the circuit court’s order summarily dismissing his petition, arguing that the circuit court erred in not making specific findings of fact regarding each of his claims and in summarily dismissing his petition without receiving a response from the State. The circuit court denied the “objection” on January 10, 2013. This appeal followed.

For a better understanding of Shaw’s claims, we set out the following statement of facts from our unpublished memorandum affirming Shaw’s convictions and sentences:

“In May of 2007, the Royal Bank of Canada (‘RBC’) notified employees at all of its Montgomery area branches that it was conducting an investigation. RBC was looking for a person who was committing bank fraud in the Montgomery area. The suspect was believed to have been at a local branch of RBC on May 9, 2007. RBC sent out a description of a suspect, including an image of the suspect taken from video surveillance at a local branch. On that same day, Bryan Shaffer, a manager at the RBC on the Atlanta Highway, saw Shaw enter and leave the bank and believed him to be the person involved in the bank fraud. Shaffer followed Shaw outside the bank. He saw Shaw get into a vehicle. When Shaffer attempted to write down the number of the vehicle’s license plate, Shaw, apparently noticing Shaffer, switched the license plate on the vehicle and drove away. Shaffer got in his vehicle, followed Shaw, and called police. Shaffer followed Shaw to a Publix grocery store parking lot. Shaffer remained in his vehicle while Shaw got out of his vehicle and walked towards the store. At that time, police arrived at the store, approached Shaw, and took him into custody. At the police station, police compared images of the suspect at the local banks and compared the person in the images to Shaw. Believing Shaw to be the person in the images, police arrested him. Shaw’s vehicle was impounded, and an inventory search revealed an eyeglass case containing crack cocaine, bank statements with account information of other individuals, checkbooks containing checks of several individuals, and a check made out to a Kenneth Dent for $986. Police also found a bag that contained deposit slips that were used to make split deposits — deposits from which a person receives cash back. Police also found other items, including multiple counterfeit identifications. The names and driver’s license numbers on some of these counterfeit identifications matched the names and driver’s license numbers on the canceled forged checks from RBC. In other words, these identifications were used to cash the forged checks. Shaw’s picture was on the identifications. Video surveillance captured Shaw cashing those checks.”

I.

Initially, we point out that Shaw does not pursue in his brief on appeal claims (5), (6), (7), and (8), as set out above. It is well settled that this Court “will not review issues not listed and argued in brief.” Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). “ ‘[A]l-legations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.’ ” Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App.1991) (quoting United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.1981)). Because Shaw does not expressly argue on appeal claims (5), (6), (7), and (8), as set out above, those claims are deemed abandoned and will not be considered by this Court.

II.

Shaw first contends on appeal that the circuit court erred in summarily dismissing his petition without making specific findings of fact regarding the merits of each of his claims. Shaw raised this issue in his postjudgment motion; therefore, it was properly preserved for our review. However, Shaw’s argument is meritless because the circuit court summarily dismissed his petition pursuant to Rule 32.7(d), Ala. R.Crim. P., and it is well settled that “Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal.” Fincher v. State, 724 So.2d 87, 89 (Ala.Crim.App.1998). As this Court explained in Daniel v. State, 86 So.3d 405 (Ala.Crim.App.2011):

“No evidentiary hearing was held in this case — the circuit court summarily dismissed Daniel’s petition. ‘Because the trial court did not hold an evidentia-ry hearing, it was not required to make specific findings of facts as to each claim.’ Beckworth v. State, [Ms. CR-07-0051, May 1, 2009] — So.3d-, - (Ala.Crim.App.2009). ‘[R]ule 32.9(d), Ala. R.Crim. P., requires findings of fact only if an evidentiary hearing is held. Findings are not required if the petition is dismissed.’ Fowler v. State, 890 So.2d 1101, 1103 (AIa.Crim. App.2004). ‘Rule 32.9(d), Ala. R.Crim. P., requires the circuit court to make specific findings of fact only after an evidentiary hearing or the receipt of affidavits in lieu of a hearing.’ Chambers v. State, 884 So.2d 15, 19 (Ala.Crim.App.2003). See also Ex parte McCall, 30 So.3d 400 (Ala.2008). The circuit court did not err in failing to make written findings of fact concerning Daniel’s claims.”

86 So.3d at 413. Therefore, the circuit court did not err in not making specific findings of fact regarding each of Shaw’s claims.

III.

Shaw also reasserts on appeal claims (1) through (4), as set out above.

Before addressing those claims, we first point out the following:

“ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.’ Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992).”

Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003).

Rule 32.3, Ala. R.Crim. P., states that “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.” Rule 32.6(b), Ala. R.Crim. P., states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” As this Court noted in Boyd:

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts.”

913 So.2d at 1125.

“The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003).”

Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006).

With these principles in mind, we address each of Shaw’s claims in turn.

A.

First, Shaw reasserts on appeal claim (3), as set out above — that he was denied his Sixth Amendment right to counsel of choice when, he says, the trial court refused his repeated requests to fire his retained counsel and to retain new counsel. The record from Shaw’s direct appeal refutes this claim.

In his petition, Shaw alleged that his trial counsel, Amardo Wesley Pitters, had been retained to represent him, but that there “were constant problems” between him and Pitters “[b]efore and throughout trial” and that he “begged the trial court to allow him to obtain another lawyer because of the breakdown in communication between him and Attorney Pitters.” (C. 23.) Shaw maintained that “[t]here were obvious major problems between [him] and his attorney, Wesley Pitters, first evidenced in the record on June 9, 2008, at a suppression hearing, almost a year prior to the trial” and that “[t]hings between them only got worse” in the year leading up to the trial. (C. 23.) According to Shaw, Pitters had an outburst in open court and complained that Shaw was “ ‘frustrating’ ” him. (C. 24.) Shaw said that he and Pitters were “more than frustrated with each other months before and through the trial and sentencing in this instant case.” (C. 24.) Shaw alleged that “[b]efore and throughout the beginning of the trial, [he] and Attorney Pitters displayed] their inability to cooperate, communicate, and work together” and that, as a result, he “continuously requested] that he be given an opportunity to get another lawyer, all to no avail.” (C. 24.) Shaw further alleged that “his continuous request to be allowed to obtain another attorney to adequately represent him was not designed for the purpose of delaying and disrupting the trial” and that, therefore, the trial court “should have made the kind of inquiry that might have eased [his] dissatisfaction, distrust, and/or concern,” but that, instead, the court “subtly pressur[ed] and [led him] to proceed because he had been in jail so long, despite the obvious and clear conflict between him and Attorney Pitters.” (C. 24.) Shaw maintained that he and Pitters had “an irreconcilable conflict” but that at no time “did the trial court inquire or try to determine whether the conflict between [him] and Attorney Pitters was so great that it resulted in a total lack of communication preventing an adequate defense.” (C. 25.) Shaw also argued that the denial of counsel of choice is “structural — not subject to harmless-error analysis” (C. 23) and that “[t]he continuous denial of this qualified right to counsel of choice is reversible error regardless of whether prejudice is shown.” (C. 26.)

The record from Shaw’s direct appeal reflects that Shaw was initially represented by Jacob A. Dubin. Subsequently, Shaw, or his family, retained Pitters to represent Shaw. On January 9, 2008, Pit-ters entered his notice of appearance on behalf of Shaw. Pitters represented Shaw through the April 2009 trial, but, as explained in more detail below on Part III.B. of this opinion, new counsel was appointed to represent Shaw at sentencing. Despite Shaw’s allegation in his petition that his troubles with Pitters began in June 2008, almost a year before his trial began, the record reflects that Shaw waited until the day his trial began, after the jury was struck, to request that he be allowed to substitute new counsel. The record reflects that, after voir dire but before the striking of the jury, the following occurred:

“MR. PITTERS: Judge, before we go on, I don’t want to waste your time, the Court’s time, these jurors’ time. And I’m having a whale of a time with my client because he’s insistent that you’re not going to have trial today — that you’re not going to have a trial — You’ve not given us a ruling on the Motion to Suppress. Yesterday, I was over at the jail, he was insisting that I file several motions; and I’ve done so.
“THE COURT: We’ll take them up right after lunch. I’m just trying to get the jurors out of here.”

(Record on Direct Appeal “RDA,” R. 83.) The jury was then struck, after which Shaw requested that he be allowed to be speak on his own behalf.

At that point, the trial court permitted Shaw to put anything on the record he wished. Shaw complained generally: “I don’t feel like I can get a fair and impartial trial.” (RDA, R. 86.) When asked why, Shaw said his belief was based on “ineffective assistance of counsel ... [and] prose-cutional [sic] misconduct.” (RDA, R. 86.) Shaw also requested that the trial judge recuse himself a motion the trial court denied. Shaw further requested a continuance until he could obtain a transcript from a federal trial, and the continuance was denied. When requesting the continuance, Shaw pointed out that attorney Winston Durant had already obtained one continuance on his behalf even though Durant had not been retained to represent Shaw. When asked if he had anything else to say, Shaw again stated only generally that “I just can’t get no fair trial. That’s all I’ve got to say. I ain’t going to be able to get a fair trial.” (RDA, R. 89.) After further complaining about the lack of the transcript from the federal trial, Shaw then pointed out that the trial court had not yet ruled on the motion to suppress. The trial court then denied the motion to suppress.

After the denial of the motion to suppress, Pitters put on the record that Durant, although not hired by Shaw, shared office space with him and was helping him with the trial, apparently free of charge. Pitters then indicated that if Shaw did not want Durant to help with the trial, Pitters would request that Durant leave the courtroom. When asked by the trial court about his “problem” with Durant, the following occurred:

“[Shaw]: Your Honor, I really feel like I should talk to my family about getting me a lawyer. I’m talking about for real. That’s the way I feel because I don’t feel like I’m going to get a fair trial. I’m talking about and then my attorney — to tell the truth — is a lot that’s going on that I really don’t — since coming over there and seeing me, talking about a trial — I really wasn’t prepared for no trial today. And I haven’t called my folks yet. But then there’s a certain situation dealing with my accounts—
“THE COURT: —Mr. Shaw, let me say this to you. Mr. Durant is here at the request, I assume, of Mr. Pitters.
Mr. Durant has tried more cases in this courtroom than any lawyer. And I think he’s one of the best lawyers I’ve seen. If you want his assistance, he’s here to help you. If you don’t want him here, he’ll go away. But don’t sit here and tell me about — You’re complaining about ineffective assistance of counsel where you’re sitting there, you’ve got two experienced lawyers sitting there at your side. Make up your mind, man.
“[Shaw]: Your Honor, I’m talking about — I think I need another lawyer.
“THE COURT: Well, you’re not going to get one.
“[Shaw]: You the Judge, Your Honor.
“THE COURT: It’s been two years now.
“Now do you want Mr. Durant to be in here with you or not?
“[Shaw]: Well, I’m talking about, if we’re going to have a kangaroo court, you can have who you want put in here.
“THE COURT: Well, it’s not up to me.
“[Shaw]: I’m talking about, I’m being forced to take lawyers—
“THE COURT: I didn’t hire Mr. Pit-ters.
“[Shaw]: I know. My family did.
“THE COURT: Okay.
“[Shaw]: My family did, Your Honor. And if I’m going to be forced to take an attorney to go to trial that I don’t feel comfortable going to trial and don’t feel like I can get a fair trial then, you know, you’re the judge. I can’t buck against you.
“THE COURT: The only question I have for you right now, Mr. Shaw, with regard to Mr. Durant, do you want him here to assist you? Or do you not want him here to assist you? Or you don’t care, one way of the other?
“[Shaw]: Your Honor, you know what, I feel like I should get me another lawyer.
“THE COURT: Well, that’s not going to happen, Mr. Shaw. So here are your choices—
“[Shaw]: —you can just let both of them stay here because I can’t get no fair trial, Your Honor.”

(RDA, R. 91-93.)

The selected jury was then brought into the courtroom, sworn, and recessed for lunch. At that point, the following occurred:

“[Shaw]: Your Honor, can I show you a letter before you go [to lunch]?
“THE COURT: All right.
“[Shaw]: This was the situation that I tried to address a long time ago. This is a letter from Mr. Pitters to my folks (indicating). And I ain’t getting no fair—
“THE COURT: —I tell you what, Mr. Shaw, if you’ll show it to me at about 1:20, I’ll look at it.
“[Shaw]: All right. I’ll have it for you then, Your Honor, where Mr. Pitters’s services were terminated way back in May.”

(RDA, R. 94-95.) The record indicates that Shaw never reasserted any objection or request relating to the letter. The letter to which Shaw was apparently referring is included in the record from Shaw’s direct appeal. In the letter, from Pitters to Shaw’s sister, Pitters stated that at a hearing on May 27, 2008, several defense motions had been denied “to the displeasure of your brother.” (RDA, C. 114.) Pitters then stated that “Mr. Shaw demonstrated his displeasure by a loud outburst [and] verbal attack on me and the court, including disparaging comments of racial slurs” and that Shaw had “stated that he was terminating my services.” (RDA, C. 114.) Pitters also stated in the letter, however, that he was scheduled to see Shaw again on May 29, 2008.

Following the lunch recess, Pitters reasserted, based on Shaw’s conduct, that Shaw was incompetent to stand trial. The court determined that Shaw was, in fact, competent based on the court’s dealings ■with Shaw. The following then occurred:

“MR. PITTERS: Judge, are you inclined to entertain a plea?
“THE COURT: I will.
“[Prosecutor]: There’s no offer from the State at this point.
“THE COURT: Well, let’s reconsider.
“(Pause in the proceedings.)
“THE COURT: Are we ready to go, guys?
“MR. PITTERS: Okay. Judge, we’ll go forward.
“[Shaw]: I want to get me another lawyer. I want another lawyer. I done asked for another lawyer two or three times. And you’re forcing me to keep him. I don’t want him no more. I asked you a thousand times.
“THE COURT: Mr. Shaw, all he’s doing is presenting you an offer. It’s up to you whether to take it or not take it.”

(RDA, R. 98-99.) At this point in the proceedings, Shaw began complaining that the police officers involved in the case had lied and had blinded him in one eye. The following then occurred:

“[Shaw]: Get me out of the state of Alabama. That’s what they need to be doing. And they need to be doing it today.
“THE COURT: Mr. Shaw, you’re not getting out of the state of Alabama today.
“[Shaw]: Sir?
“THE COURT: You’re not getting out of the state of Alabama today. Do you want to go to trial or not?
“[Shaw]: I don’t care what you do, Your Honor. Do it like you want to do it.”

(R. 101.) The jury was then brought into the courtroom, and the trial court gave its preliminary instructions. At that point, Shaw requested to be taken back to his jail cell “[a]nd they can just have this trial without me.” (R. 104.) The trial court denied Shaw’s request.

After opening statements, the State presented its case-in-chief. Pitters ably represented Shaw, making objections and cross-examining witnesses and, at one point, requesting to recall one of the State’s witnesses for further cross-examination at Shaw’s suggestion. Just before the charge conference, Shaw again requested that he be allowed time to obtain the transcript from the federal trial to establish that the police officers involved in the case had lied and had blinded him. The trial court denied the request.

After the State rested and the trial court discussed with Shaw his right to testify or not to testify, Shaw again asserted that he had received ineffective assistance of counsel, at which point the trial court allowed Shaw to confer with Pitters. After a brief pause, the following occurred:

“[Shaw]: Your Honor, I feel like it’s a total breakdown between me and my attorney as I stipulated yesterday at the beginning of this trial that I felt like I needed another attorney. I needed a continuance, Your Honor. But the case done went this far. And there’s still a breakdown between me and my attorney. I’m talking about, I ain’t feeling like I’m being properly represented by Mr. Pitters for the money my folks gave — I don’t feel like I’ve been properly represented by him at all. You understand?

“And as far as it’s going now, you’re the Judge. I asked you yesterday at the beginning of trial, Your Honor, if I could get another lawyer and get a continuance. You denied me getting me another lawyer. I can’t represent myself. I’m talking about, if I could have represented myself, I could really tell the truth, everything — I requested of the Court, I asked you yesterday, Your Honor, could I get me another lawyer and get a continuance because they done put me in a position where the requested — Attorney Winston Durant come on record and asked for a continuance that I might have the transcripts from the Federal trial. Okay. They come back and put that off until the 6th. We rushing the trial until — We come back on the 6th. I requested that I be able to get me an attorney and then a continuance because the Federal Court done already granted me an opportunity to get these transcripts which the Court allowed them to put off on February 4th. And now we’re in the fix — a trial — and the breakdown ain’t just started now. It started at the beginning of this trial, Your Honor. I’m talking about when I asked Your Honor — like I was telling you — that on this case about you — And I don’t want to be fighting against you and your daddy [the judge who presided over the federal trial] and all them. But they’re putting me in a position, I ain’t got no more choice. The folks done blinded me. I’m not fixing to lay down — I requested an attorney that my folks might be able to afford one that I can fight it. And they done gave him $8,000. And he ain’t doing such a great job. Do you understand me?

“Now I asked you yesterday that I might have a continuance that I could get me an attorney because I think my folks can get me one because they got him. And then they done put me in a position where they recruited — it wasn’t even—
“THE COURT: —Mr. Shaw, let me ask you something. You’re over there in the county jail; right?
“[Shaw]: Yes, sir.
“THE COURT: Been sitting over there for two years.
“[Shaw]: Yes, sir, just about.
“THE COURT: Aren’t you ready to get that over with?
“[Shaw]: I’m ready to get it over with. My life is on the line.”

(RDA, R. 230-32.) After further discussion regarding his right to testify, Shaw then stated “I had advised him to draw up his motion to withdraw, he didn’t — I need another attorney. That’s what I need.” (RDA, R. 234.) The court did not specifically rule on the request, but acknowledged that Shaw was unhappy with his attorney.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” “Comprehended within the Sixth Amendment right to assistance of counsel is the right to the effective assistance of counsel and the right to counsel of one’s own choosing.” Lane v. State, 80 So.3d 280, 294 (Ala.Crim.App.2010). However, the right to counsel of choice is not absolute. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (“The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects.”); and Lane, 80 So.3d at 295 (“The right to counsel of choice — either initially or continued representation — is not absolute — either for indigent or nonin-digent defendants.”). “Rather, this Court has held that a defendant’s right to counsel of his choice must be balanced against the need for the efficient and effective administration of justice.” Hamm v. State, 913 So.2d 460, 472 (Ala.Crim.App.2002).

Initially, we note that neither at trial nor in his petition does Shaw argue that he was indigent and that he wanted the trial court to appoint counsel to replace retained counsel. Rather, at trial, Shaw indicated that he wanted to have his family hire another lawyer and in his petition he alleged that he wanted to “obtain” another lawyer. Thus, it appears that Shaw merely wanted to fire his retained counsel, Pit-ters, and hire new counsel to represent him.

That being said, Shaw alleged in his petition that his problems with Pitters began almost a year before the April 2009 trial, at the June 2008 suppression hearing. Clearly then, Shaw had ample time before the trial began to fire Pitters and to retain new counsel to represent him, and he did not need the trial court’s approval to do so. “Unlike an indigent defendant, a person with the means to retain a lawyer need not obtain court approval to do so.” State v. Keerins, 145 Or.App. 491, 494, 932 P.2d 65, 67 (1996). See also State v. Martinez, 224 Or.App. 588, 591, 198 P.3d 957, 959 (2008) (“Defendant did not need the trial court’s permission to discharge his court-appointed attorney before retaining private counsel.”). As the Illinois Supreme Court explained in People v. Pecoraro, 144 I11.2d 1, 161 Ill.Dec. 296, 578 N.E.2d 942 (1991):

“It was not within the trial court’s rubric of authority to advise or exercise any influence or control over the selection of counsel by defendant, who was able to, and did, choose counsel on his own accord. (People v. Walsh (1963), 28 I11.2d 405, 409, 192 N.E.2d 843.) Moreover, the trial judge could not force defendant to retain counsel other than that chosen by defendant. (People v. Johnson (1979), 75 I11.2d 180, 185, 25 Ill.Dec. 812, 387 N.E.2d 688.) Defendant and his counsel were the only parties who could have altered their attorney-client relationship.”

144 IH.2d at 15, 161 IlLDec. 296, 578 N.E.2d at 948. At any time before his trial began, Shaw could have fired Pitters and retained new counsel. Indeed, the May 2008 letter Pitters wrote to Shaw’s sister reflects that Shaw threatened to fire Pitters and to hire a new attorney. Yet, for whatever reason, Shaw did not follow through on his threat. The record contains no indication that Shaw took any steps at all in the months preceding his trial to obtain new counsel. Shaw cannot now complain that he was denied his right to counsel of choice when Shaw could have, at any time before his trial, fired Pitters and hired new counsel but failed to do so.

Moreover, Shaw’s request, after his trial began, that he be permitted to retain new counsel was clearly untimely. A motion to substitute counsel made the first day of trial is “untimely under all but the most exigent circumstances.” United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir.1994). See also United States v. Trujillo, 376 F.3d 593, 606 (6th Cir.2004) (motion for substitution of counsel three days before trial is set to begin is untimely). “It is within the trial court’s sound discretion to refuse to allow a defendant to dismiss his attorney after the trial has commenced.” Hayes v. State, 340 So.2d 1142, 1143 (Ala.Crim.App.1976). As already noted, “[a] defendant’s right to counsel of his choice must be balanced against the need for the efficient and effective administration of justice.” Hamm, 913 So.2d at 472. In Lovin v. State, 286 S.W.3d 275 (Tenn.2009), the Tennessee Supreme Court explained:

“When a prisoner desires to discharge a retained lawyer, the appropriate focus is on balancing the prisoner’s right to discharge his or her lawyer against the court’s obligation to administer justice efficiently by avoiding unreasonable delay. People v. Ortiz, 275 Cal.Rptr. 191, 800 P.2d [547] at 552-53 [ (1990) ]; Jackson v. State, 979 So.2d 442, 444 (Fla.Dist.Ct.App.2008). A prisoner’s exercise of his or her right to discharge his or her lawyer cannot be permitted to ‘unduly hinder the fair, efficient and orderly administration of justice.’ United States v. Panzardi Alvarez, 816 F.2d 813, 816 (1st Cir.1987) (citations omitted). Thus, the courts should not permit prisoners to use their ability to discharge their retained lawyer as a tactical ploy to disrupt and delay orderly judicial proceedings. State v. Chadwick, 224 Term. 75, 78-80, 450 S.W.2d 568, 570 (1970); State v. Zyla, 628 S.W.2d 39, 41-42 (Tenn.Crim. App.1981); see also Tyler v. State, 945 So.2d 662, 664 (Fla.Dist.Ct.App.2007).”

286 S.W.3d at 286. Although Shaw alleged in his petition that his request to retain new counsel was not for the purpose of delaying his trial, those portions of the record quoted above indicate otherwise. Indeed, it is clear from the record that Shaw contrived a dispute between him and Pitters in an attempt to delay his trial. Therefore, Shaw was not denied his right to counsel of choice.

B.

Shaw also reasserts on appeal claim (2), as set out above — that his sentences violate principles of double jeopardy. He argues on appeal, as he did in his petition, that he was originally sentenced to 27 years’ imprisonment for the first-degree-theft and trafficking-in-stolen-identities convictions, and to 5 years’ imprisonment for the possession-of-cocaine conviction and for each of the possession-of-a-forged-instrument convictions, with all the sentences to run concurrently, but that four days after the original sentences were imposed, the trial court increased his 5-year sentences to 10-year sentences and ordered that those sentences were to run consecutively to the two 27-year sentences, thus resulting in his being punished twice for each of his convictions. Relying on Shivener v. State, 958 So.2d 913 (Ala.Crim.App.2006), and other similar cases holding that a trial court is not authorized to increase a defendant’s sentence after it has entered a valid sentence, Shaw argues that once the trial court sentenced him on May 14, 2009, it had no authority, four days later on May 18, 2009, to increase the validly imposed sentences. This argument is meritless.

The record from Shaw’s direct appeal reflects that the jury returned its verdicts finding Shaw guilty on all counts on April 7, 2009. On April 14, 2009, Shaw filed a pro se notice of appeal stating that he wanted to appeal his convictions because, he said, his trial counsel had been ineffective. On April 21, 2009, Pitters moved to withdraw from representing Shaw. In an order dated by the trial court April 17, 2009, but stamped as filed in the circuit clerk’s office on April 21, 2009, the trial court granted Pitters’s motion to withdraw and appointed new counsel “to represent [Shaw] in the appeal of this matter.” (RDA, C. 118.) On May 14, 2009, Shaw appeared for a sentencing hearing. Pit-ters also appeared at the sentencing hearing purportedly representing Shaw and making arguments on Shaw’s behalf. The trial court sentenced Shaw to 5 years’ imprisonment for the possession-of-cocaine conviction and each of the possession-of-a-forged-instrument convictions and to 27 years’ imprisonment for the first-degree-theft and trafficking-in-stolen-identities convictions, and ordered that all the sentences run concurrently with each other.

Immediately following the imposition of sentence, the following occurred:

“MR. PITTERS: I would ask the Court to — there is an issue here with respect to — I’ve previously filed a Motion to Withdraw. Mr. Shaw has — for all practical purposes has — been asking for me to withdraw from this case. When the verdict was announced, he gave oral notice of appeal — The Alabama Court of Criminal Appeals — We’ll have to wait until sentencing. So at this time, I’ll sort of re-file orally and ask the Court for leave to withdraw. I was retained—
“THE COURT: —file a written motion, please. Have you already filed a written motion?
“MR. PITTERS: Yes, I did.
“THE COURT: Okay. Well, it will be granted. And we will appoint Mr. Shaw another attorney unless he wants to hire his own.
“[Shaw]: Your Honor, I would like to say something.
“THE COURT: All right.
“[Shaw]: You sent an order over to me that I got a copy of it that stated that on the 17th that Mr. Pitters had withdrew then. I’m questioning, how he come back to be representing me now? I mean, you ordered that he withdrew on the 17th. And I’m wondering, how he come to be representing me now? I’m talking about at sentencing. You know, I’m talking about—
“THE JUDICIAL ASSISTANT: I may be able to clarify that a little bit for Mr. Shaw. Mr. Pitters was allowed to withdraw as to your appeal. You filed an appeal.
“[Shaw]: If Mr. Pitters withdrew, he withdrew, period, because my folks paid him $8,500,1 mean, to represent me. If he withdrew on the 17th, he filed a motion. The Court granted his motion. He shouldn’t have been here representing me now. That’s the way I look — I think that’s the way the law should go. If he withdrew on the 17th from my case and then he come back this morning to represent me, how is that? How are you going to represent? How are you going to withdrew on the 18th and then come back and represent me when you feel like representing me—
“THE COURT: —do you want me to appoint you another attorney for your sentencing?
“[Shaw]: I would like that.
“THE COURT: Okay. We’ll do the sentencing next Monday.
“Ms. Battle-Hodge, you’re appointed to represent Mr. Shaw on Monday.
“MS. BATTLE-HODGE: Thank you, Your Honor.
“MR. PITTERS: May I be excused?
“THE COURT: All right.”

(RDA, R. 288-90.) The proceedings were adjourned until May 18, 2009, at which point a second sentencing hearing was held, during which Juraldine Battle-Hodge represented Shaw and made arguments on Shaw’s behalf. At the second sentencing hearing, the trial court sentenced Shaw to 10 years’ imprisonment for the possession-of-coeaine conviction and for each of the possession-of-a-forged-instrument convictions and to 27 years’ imprisonment for the first-degree-theft and trafficking-in-stolen-identities convictions, and ordered that the five 10-year sentences run concurrently with each other but run consecutively to the two 27-year convictions.

Shaw is correct that “[o]nce a valid sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be altered anytime thereafter so as to increase the severity of the sentence.” Ex parte Tice, 475 So.2d 590, 591-92 (Ala.1984) (emphasis added). “Increasing a valid sentence after a defendant has commenced serving the sentence violates the prohibition against double jeopardy in both the United States and Alabama Constitutions.” Snell v. State, 723 So.2d 105, 108 (Ala.Crim.App.1998) (emphasis added). However, as this Court explained in Bryant v. State, 29 So.3d 928 (AIa.Crim.App.2009):

“‘[A]n increase in sentence where the [previous] sentence is void is the “most common exception to the general rule prohibiting enhancement of an imposed sentence.” ’ Cline v. State, 571 So.2d 368, 369-70 (Ala.Crim.App.1990), quoting A. Campbell, Law of Sentencing § 59 (1978). ‘[I]n correcting an illegal sentence, the double jeopardy protection is not violated even if the defendant has begun serving the original sentence.’ Id. at 370 (emphasis added [in Bryant ]). ‘ “[E]ven after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence; further, any increase in the sentence does not raise double jeopardy problems.” ’ Greenhill v. State, 746 So.2d 1064, 1072 (AIa.Crim.App.1999) (emphasis added [in Bryant ]), quoting Love v. State, 681 So.2d 1108, 1109 (Ala.Crim.App.1996). See also Bozza v. United States, 380 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), and Hughes v. State, 518 So.2d 890 (Ala.Crim.App.1987).”

29 So.3d at 937.

In this case, the original sentences imposed on Shaw on May 14, 2009, were not valid sentences because Shaw was not represented by counsel during that original sentencing hearing. As Shaw himself argued to the trial court at the May 14, 2009, sentencing hearing, counsel who was present at that hearing had already withdrawn from representing him and, thus, Shaw was, in effect, without counsel during that hearing. It is well settled that “[a] defendant has a right to counsel during sentencing.” Tarver v. State, 985 So.2d 494, 494 (Ala.Crim.App.2006). “Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence.” Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993). “[I]t is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to jurisdictionally bar his” sentence. Coughlin v. State, 842 So.2d 30, 33 (Ala.Crim.App.2002). If a criminal defendant is denied counsel at sentencing, the resulting sentence is illegal. See Ex parte Anderson, 434 So.2d 737, 737-38 (Ala.1983) (where defendant was denied counsel at sentencing, the sentence was erroneous and a new sentencing hearing was necessary). Because Shaw was effectively denied counsel at the original May 14, 2009, sentencing hearing, the sentences imposed at that hearing were illegal and void for lack of jurisdiction. Therefore, resentenc-ing Shaw four days later was not only permissible but was required to correct the illegality in the original sentencing and did not violate double-jeopardy principles.

C.

Shaw further reasserts on appeal claim (4), as set out above — that his convictions for first-degree theft and four counts of possession of a forged instrument violated double-jeopardy principles.. He argues on appeal, as he did in his Rule 32 petition, that the currency that formed the basis of the theft charge was obtained as a result of the possession-of-a-forged-instrument charges and that, thus, all five charges arose from the same act or omission, and convictions for all five violated his right to be free from double jeopardy. This argument is meritless on its face.

It is well settled that “[a] single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense.” Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). However:

“Under the principles of double jeopardy, ‘[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Therefore, ‘ “[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” ’ Id. (quoting Gavieres v. United States, 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed. 489 (1911), in turn quoting Morey v. Commonwealth, 108 Mass. 433 (1871)).”

Ex parte Dixon, 804 So.2d 1075, 1078-79 (Ala.2000). “In other words, as long as each statutory offense requires proof of additional facts, the double jeopardy prohibition is not implicated.” Ex parte Dawson, 675 So.2d 905, 907 (Ala.1996).

Shaw was indicted for, and convicted of, first-degree theft of property by deception for the theft of currency exceeding $2,500. (RDA, C. 9.) Section 13A-8-2(2), Ala.Code 1975, states that “[a] person commits the crime of the theft of property if he or she ... [kjnowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property.” Section 13A-8-S(a), AIa.Code 1975, defines first-degree theft, in relevant part, as “[tjhe theft of property which exceeds two thousand five hundred dollars ($2,500) in value.” On the other hand, § 13A-9-6(a), Ala.Code 1975, provides that “[a] person commits the crime of criminal possession of a forged instrument in the second degree if he possesses or utters any forged instrument of a kind specified in Section 13A-9-3 with knowledge that it is forged and with intent to defraud.”

Contrary to Shaw’s contention, first-degree theft of property and second-degree possession of a forged instrument each require elements that the other does not. For example, first-degree theft requires that the value of the property exceed $2,500, while second-degree possession of a forged instrument has no minimum-value requirement. Second-degree possession of a forged instrument requires possessing or uttering a “forged instrument” — defined as “[a] written instrument which has been falsely made, completed or altered,” § 13A-9-K7), Ala.Code 1975 — listed in § 13A-9-3(a), while first-degree theft does not require that the property stolen be a falsely made, completed, or altered instrument listed in § 13A-9-3(a). Because first-degree theft by deception and second-degree possession of a forged instrument each require elements that the other does not, convictions for both first-degree theft and second-degree possession of a forged instrument arising out of the same conduct or transaction do not violate double-jeopardy principles.

D.

Finally, Shaw reasserts on appeal claim (1), as set out above — that the trial court lacked jurisdiction to render the judgments or to impose the sentences because, he said, he was incompetent to stand trial. This claim, however, was not pleaded with sufficient specificity to satisfy the requirements in Rules 32.3 and 32.6(b), Ala. R.Crim. P.

In his petition, Shaw alleged that “he was mentally impaired and suffered from severe schizophrenia.” (C. 14.) Shaw said that he had “a history of long-term severe mental illness, suffering from periodic and frequent bouts of severe schizophrenia where he was and is completely unable to function normally, competently, or reasonably, in normal day-to-day basic decision making.” (C. 15.) He also stated that his “intellectual disability” originated “in his childhood or early adulthood” and resulted in “limitations in his daily life skills needed to live independently in the community and an inability to make coherent and reasonable decisions.” (C. 14.) Shaw further alleged that his “behavior throughout trial was irrational and inappropriate” and evidenced that he was not “able to assist in his own defense in any meaningful way.” (C. 14.) Shaw stated that “a simple reading of pages 95-101 of the trial transcript ” as well as Exhibits A, B, and C, attached to his petition, established that he was incompetent at the time of trial. (C. 17.)

Exhibit A attached to Shaw’s petition is a “Rating Decision” by the Department of Veterans Affairs (“DVA”) dated October 16, 2003, wherein the DVA states that Shaw served in the United States Army from August 22, 1968, through June 28, 1969, and was “a veteran of the Vietnam Era.” (C. 45.) The DVA then stated that “[s]ervice connection for schizophrenia is granted with an evaluation of 70 percent.” (C. 45.) Exhibit B is a letter from Serena Lurie Bloomfield, a licensed psychologist, dated July 5, 2010, in which Bloomfield states, in relevant part:

“My records indicate that you served in the United States military and that you have co-morbid diagnoses of substance abuse and Posttraumatic Stress Disorder. You also had a history of Schizophrenia with schizoid features and the Posttraumatic Stress Disorder.
“It should be known that the first time I evaluated you was in 1997. I saw you numerous times since then....
“I conducted numerous evaluations and reviewed a great deal of documentation involving you and your mental health condition. My impressions were in the past at least that you had a substance dependence disorder, that you had numerous mental health conditions beginning at age 19. You were discharged from the United States military after serving in combat related activities in Vietnam. As a child you were diagnosed with hyperactivity. You experience chronic nightmares, flashbacks, cold sweats, auditory and visual hallucinations.
“My diagnostic impressions included Posttraumatic Stress Disorder; Psychotic Disorder NOS; Schizophrenia, Chronic Undifferentiated Type; Substance Abuse Dependence. Even with these diagnoses I most often found you very cooperative and attempting to seek treatment.”

(C. 46.) Finally, Exhibit C appears to be admittance records to a psychiatric hospital in Florida — one dated September 21, 1993, and the other dated March 15, 1995. The 1993 record lists the diagnoses on admission as:

“AXIS I: Polysubstance Abuse 305.90; Organic Mood Disorder 292.9; R/O Malingering V65.2
“AXIS II: R/O Antisocial Personality Disorder 301.7.
“AXIS III: Awaits complete physical exam and lab results.”

(C. 50.) The record states that the diagnoses on discharge were the “[s]ame as above” but notes: “Client released before final diagnosis was given.” (C. 50.) The 1995 record lists the diagnoses on admission as

“AXIS I: Psychotic Disorder NOS 298.9; Polysubstance Abuse 305.90; R/O Malingering V65.20
“AXIS II: No Dx
“AXIS III: No Dx.”

(C. 49.) On discharge the 1995 record lists the following diagnoses:

“AXIS I: Psychotic Disorder 298.9; Po-lysubstance Abuse 305.90 “AXIS II: No Dx
“AXIS III: Tuberculosis Class II (+PPD) 011.90; Hyperlipoproteinemia Type II A 272.0; Hiatal Hernia, asymptomatic 553.5; Allergy to Pork 693.1”

(C. 49.)

“A defendant is mentally incompetent to stand trial or to be sentenced for an offense if that defendant lacks sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.” Rule 11.1, Ala. R.Crim. P. However:

“[T]he law is clear that ‘[p]roof of the incompetency of an accused to stand trial involves more than simply showing that the accused has mental problems or psychological difficulties.’ Bailey v. State, 421 So.2d 1364, 1366 (Ala.Cr.App. 1982).
“ ‘ “A distinction must be made between mental illness and mental incompetency to stand trial, and the fact that a defendant is mentally ill does not necessarily mean that he is legally incompetent to stand trial. Thus, not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence of defendant’s mental unfitness must indicate a present inability to assist counsel or understand the charges.” ’
“Cowan v. State, 579 So.2d 13, 15 (Ala.Cr.App.1990) (quoting 22A C.J.S. Criminal Law § 550 (1989) (footnotes omitted)).”

Thomas v. State, 766 So.2d 860, 881 (Ala.Crim.App.1998), aff'd, 766 So.2d 975 (Ala.2000), overruled on other grounds by Ex parte Taylor, 10 So.3d 1075 (Ala.2005). “Similarly, neither low intelligence, mental deficiency, nor bizarre, volatile, and irrational behavior can be equated with mental incompetence to stand trial.” Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir.1995).

Shaw’s allegations in his petition that he had suffered from mental illness for most of his adult life and his exhibits referencing various diagnoses in the early 1990’s, long before his 2009 trial, as well as the letter from the psychologist dated in 2010, but referencing his mental illnesses diagnosed as early as 1997, also long before his 2009 trial, are simply not sufficient to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b) and to indicate that Shaw was incompetent to stand trial. Therefore, we conclude that Shaw’s claim that he was incompetent to stand trial was not sufficiently pleaded.

IV.

Finally, Shaw contends that the circuit court erred in summarily dismissing his petition without affording him an evi-dentiary hearing.

Rule 32.7(d), Ala. R.Crim. P., authorizes the circuit court to summarily dismiss a petitioner’s Rule 32 petition

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings ...”

See also Hannon v. State, 861 So.2d 426, 427 (Ala.Crim.App.2003); Cogman v. State, 852 So.2d 191, 193 (Ala.Crim.App.2002); Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992). In addition, “ ‘ “[w]here a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition.’”” Bryant v. State, [Ms. CR-08-0405, February 4, 2011] — So.3d -, - (Ala.Crim.App.2011) (quoting Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (quoting in turn Bishop v. State, 592 So.2d 664, 667 (Ala.Crim.App.1991) (Bowen, J., dissenting))). Summary disposition is also appropriate where the record directly refutes a Rule 32 petitioner’s claim. See Duncan v. State, 925 So.2d 245 (Ala.Crim.App.2005). Because, as explained above, all the claims from his petition that Shaw pursues in his brief on appeal were either meritless on their face, or directly refuted by the record from his direct appeal, or insufficiently pleaded, summary disposition of Shaw’s Rule 32 petition was appropriate.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

WELCH and BURKE, JJ., concur.

WINDOM, P.J., concurs in the result.

JOINER, J., concurs in part; concurs in the result in part; and dissents in part, with opinion.

JOINER, Judge,

concurring in part; concurring in the result in part; and dissenting in part.

I concur in the result with respect to Part III.A. of the majority opinion, I dissent with respect to Part III.B., and I concur in all other respects.

I concur in the result with respect to Part III.A. because I do not believe that “it is clear from the record that Shaw contrived a dispute between him and Pit-ters in an attempt to delay his trial.” 148 So.3d at 758. Likewise, I believe that such a holding is unnecessary in light of the conclusion that “Shaw cannot now complain that he was denied his right to counsel of choice when Shaw could have, at any time before his trial, fired Pitters and hired new counsel but failed to do so.” 148 So.3d 745, 758.

I dissent with respect to Part III.B. — in which the majority concludes that Shaw was unrepresented by counsel at his first sentencing hearing — because this Court is making a factual determination that would best be made by the circuit court following an evidentiary hearing; further, even if this Court were in a position to make a factual determination on the issue, the conclusion reached by the majority is unsupported by the materials before this Court.

On May 14, 2009, Shaw — in the presence of counsel who made detailed and articulate arguments on behalf of Shaw — was sentenced to 27 years’ imprisonment for the theft and trafficking-in-identities convictions, and to 5 years’ imprisonment for the remaining convictions. All of Shaw’s sentences were to run concurrently. (Record on original submission, R. 287-88.)

At the conclusion of the May 14 sentencing hearing, the following exchange occurred:

“MR. PITTERS: I would ask the Court to — there is an issue here with respect to — I’ve previously filed a Motion to Withdraw. Mr. Shaw has — for all practical purposes has — been asking for me to withdraw from this case. When the verdict was announced, he gave oral notice of appeal — The Alabama Court of Criminal Appeals — We’ll have to wait until sentencing. So at this time, I’ll sort of re-file orally and ask the Court for leave to withdraw. I was retained—
“THE COURT: —file a written motion, please. Have you already filed a written motion1
“MR. PITTERS: Yes, I did.
“THE COURT: Okay. Well, it will be granted. And we will appoint Mr. Shaw another attorney unless he wants to hire his own.
“[Shaw]: Your Honor, I would like to say something.
“THE COURT: All right.
“[Shaw]: You sent an order over to me that I got a copy of it that stated that on the 17th that Mr. Pitters had withdrew then. I’m questioning, how he come back to be representing me now? I mean, you ordered that he withdrew on the 17th. And I’m wondering, how he come to be representing me now? I’m talking about at sentencing. You know, I’m talking about—
“THE JUDICIAL ASSISTANT: I may be able to clarify that a little bit for Mr. Shaw. Mr. Pitters was allowed to withdraw as to your appeal. You filed an appeal.
“[Shaw]: If Mr. Pitters withdrew, he withdrew, period, because my folks paid him $8,500,1 mean, to represent me. If he withdrew on the 17th, he filed a motion. The Court granted his motion. He shouldn’t have been here representing me now. That’s the way I look — I think that’s the way the law should go. If he withdrew on the 17th from my case and then he come back this morning to represent me, how is that? How are you going to represent? How are you going to withdrew on the 18th and then come back and represent me when you feel like representing me—
“THE COURT: —do you want me to appoint you another attorney for your sentencing?
“[Shaw]: I would like that.
“THE COURT: Okay. We’ll do the sentencing next Monday.
“Ms. Battle-Hodge, you’re appointed to represent Mr. Shaw on Monday.
“MS. BATTLE-HODGE: Thank you, Your Honor.
“MR. PITTERS: May I be excused?
“THE COURT: All right.”

(Record on appeal, R. 289-90 (emphasis added).)

Four days later, the circuit court conducted a second sentencing hearing. In that hearing, Shaw — in the presence of counsel — was sentenced to 27 years’ imprisonment for the theft and trafficking-in-identities convictions, and to 10 years’ imprisonment for the remaining convictions; the two 27-year sentences were to run consecutively with the five 10-year sentences.

In response to Shaw’s argument that his double-jeopardy rights were violated when he was resentenced to a greater term of imprisonment — and when his sentences were changed to consecutive from concurrent sentences — the majority opinion states:

“In this case, the original sentences imposed on Shaw on May 14, 2009, were not valid sentences because Shaw was not represented by counsel during that original sentencing hearing. As Shaw himself argued to the trial court at the May 14, 2009, sentencing hearing, counsel who was present at that hearing had already withdrawn from representing him and, thus, Shaw was, in effect, without counsel during that hearing.”

145 So.3d 745, 761.

First, the conclusion that “Shaw was not represented by counsel during that original sentencing hearing” is a factual determination — apparently based on Shaw’s unsworn statements at the original sentencing hearing — relevant to the outcome of Shaw’s claim that he was unlawfully resentenced; such a factual determination, however, would best be made by a circuit judge after affording Shaw an opportunity to address such an allegation. See Ex parte Fountain, 842 So.2d 726, 730 (Ala.2001) (“Procedural due process ... broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them." (quotation marks omitted)). In this case, this Court is making a factual determination never addressed by either party — or considered by the judge — to affirm the dismissal of Shaw’s claims; although this Court may affirm for any reason, it may not do so if doing so violates due process. See Bryant v. State [Ms. No. CR-08-0405, Feb. 4, 2011] — So.3d-,-(Ala.Crim.App.2011) (noting that “there exists a long-standing and well-reasoned principle that we may affirm the denial of a Rule 32 petition if the denial is correct for any reason,” but recognizing that this “general rule is limited only by due-process constraints that require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment” (quotations omitted)). Accordingly, I would, at the very least, remand this case for an eviden-tiary hearing on this issue.

Second, to the extent that this Court may review this issue de novo as a determination to be made on a cold record, Ex parte Hinton, [Ms. 1110129, Nov. 9, 2012] — So.3d- (Ala.2012), the conclusion reached in the majority opinion is inconsistent and unsupported by the above-quoted sentencing hearing. The transcript does not demonstrate that Shaw was unrepresented by counsel at the first sentencing hearing; to the contrary, the transcript establishes that Pitters was present at the first sentencing hearing and zealously advocated for Shaw on the issue of sentencing. Further, attorneys withdraw only by permission of the court, see Rule 6.2(b), Ala. R.Crim. P.; the sentencing transcript evidences that Pitters had been allowed to withdraw only for the purposes of Shaw’s appeal — notice of which was given immediately after the verdict — and, further, that neither Pitters nor the trial judge understood Pitters to have withdrawn before the sentencing hearing.

Moreover, even if Pitters had, in fact, been allowed to withdraw prior to the sentencing hearing, the legal authority relied upon in the opinion do not support the proposition that a defendant is deprived of counsel where counsel has withdrawn but continues to act as a defendant’s attorney in fact. Instead, the caselaw used in the majority opinion involves instances in which counsel was absent entirely. See Tarver v. State, 985 So.2d 494, 495 (Ala.Crim.App.2006) (“If the trial court finds that Tarver was indeed without counsel during sentencing and that he did not waive his right to counsel, the trial court should hold a new sentencing hearing at which counsel should be appointed for Tar-ver at the hearing.”); Coughlin v. State, 842 So.2d 30, 33 (Ala.Crim.App.2002) (“Coughlin, a nonindigent defendant, represented himself at trial.”); Berry v. State, 630 So.2d 127, 128 (Ala.Crim.App.1993) (“The record discloses that the appellant, although represented by counsel at prior proceedings, was not represented by counsel at that hearing.”); Anderson v. State, 434 So.2d 738, 738 (Ala.Crim.App.1983) (“On April 8, 1983, the Supreme Court of Alabama, Anderson v. State, 434 So.2d 737, directed this court to remand this cause for a sentencing hearing with counsel present.”).

I conclude that Shaw was validly sentenced at his first sentencing hearing and, thus, that Shaw’s second sentence — which is four-times longer than his first — violates double-jeopardy protections. Ex parte Tice, 475 So.2d 590, 591-92 (AIa.1984); Shivener v. State, 958 So.2d 913 (Ala.Crim.App.2006); Moore v. State, 814 So.2d 308, 310 (Ala.Crim.App.2001) (citing Rule 26.12, Ala. R.Crim. P.); Snell v. State, 723 So.2d 105,108 (Ala.Crim.App.1998).

For the foregoing reasons, I dissent as to this issue.

      . This court may take judicial notice of its own records, and we do so in this case. See Nettles v. State, 731 So.2d 626, 629 (Ala.Crim.App.1998), and Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App.1992).

      . Dubin filed a notice of appearance on August 7, 2007, some three months before Shaw was indicted.

      . It appears that Shaw sued the Montgomery Police Department in federal court as a result of his arrest on the charges giving rise to his convictions.

      . Because the witness had already left, the court refused the request.

      . The notice was stamped as filed in the circuit clerk's office on April 14, 2009, but was dated by Shaw April 12, 2009.

      . The motion is both dated by Pitters April 21, 2009, and stamped as filed in the circuit clerk’s office on April 21, 2009.

      . It is unclear from the record why the circuit court issued an order granting the motion to withdraw four days before the motion was filed.

      . Section 13A-9-3(a), Ala.Code 1975, lists several instruments that can form the basis of a second-degree possession-of-a-forged-instrument conviction, including "a check, draft, note or other commercial instrument.” In this case, Shaw was indicted for possessing or uttering forged checks.

      . "Although a Rule 32 petitioner is not required to include attachments to his or her petition in order to satisfy the pleading requirements in Rule 32.3 and Rule 32.6(b), when a petitioner does so, those attachments are considered part of the pleadings.” Conner v. State, 955 So.2d 473, 476 (Ala.Crim.App.2006). See also Ex parte Lucas, 865 So.2d 418 (Ala.2002) (attachments to a Rule 32 petition are considered part of the pleadings).

      . Although the second sentencing order reflects that the two 27-year sentences and the five 10-year sentences are to run consecutively with each other, neither the transcript from the second sentencing nor the subsequent sentencing order addresses whether the two 27-year sentences and the five 10-year sentences are respectively concurrent or consecutive sentences; accordingly, they are deemed to all be consecutive sentences. See § 14-3-38(a), Ala.Code 1975 ("When a convict is sentenced to imprisonment in the penitentiary on two or more convictions, unless it is specifically ordered in the judgment entry that such sentences be served concurrently, such sentences shall be cumulative and shall be served consecutively[.]”) Shaw’s sentences of imprisonment — from first sentencing to the second — went from, at most, 27 years, to approximately 104 years.

      . The majority opinion arguably gives rise to a new realm of jurisdictional Sixth Amendment claims; specifically, a defendant could raise a claim that he was unrepresented by counsel at a critical stage of the proceedings — a jurisdictional claim — on the basis that the record is ambiguous regarding counsel’s status as attorney for the defendant, even if the record establishes that counsel was, in fact, present and actively representing the defendant.

      . Although it is unclear from the Alabama Supreme Court's decision in Anderson whether the defendant in that case was represented by counsel — or, instead, whether counsel had simply withdrawn — the opinion of this Court on remand makes it clear that counsel was not, in fact, present at the sentencing hearing.


author: LaROSE, Judge.

text:
    Andrea LEE, Appellant, v. ESTATE OF Randy John PAYNE, and Gary M. Fernald, as Guardian ad Litem for Hannah Jean Payne, a minor, Appellee.
    No. 2D12-4411.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Joseph W. Fleece, III and Raleigh W. Greene, IV of Baskin Fleece, Attorneys at Law, Clearwater, for Appellant.
    Richard L. Pearse, Jr., of Pearse & Stin-son, P.A., Clearwater, for Appellee.
   LaROSE, Judge.

Andrea Lee, fiancée of Randy John Payne, appeals the trial court’s order dismissing her counter-petition for administration of Mr. Payne’s Colorado holographic will. Ms. Lee wanted the will admitted to ancillary probate in Pinellas County, where Mr. Payne owned three houses. We affirm the trial court’s order but certify to the Florida Supreme Court a question of great public importance.

Mr. Payne’s will left Ms. Lee one of the Florida houses, plus $40,000 from the sale of the other two. He devised the remainder of any sale proceeds to his father. Carol Jean Hope, the estate’s Colorado personal representative and Mr. Payne’s sister, filed a petition for probate administration in Pinellas County. She alleged that the holographic will was not executed in compliance with section 732.502(1), Florida Statutes (2010), and, thus, was not valid under section 732.502(2). The petition listed the estate’s only beneficiary as Mr. Payne’s minor daughter. The trial court appointed Ms. Hope as ancillary personal representative of Mr. Payne’s Florida estate. Ms. Lee filed a counter-petition for administration urging the trial court to accord full faith and credit to the Colorado court order admitting the will to probate there. See art. IV, § 1, U.S. Const. (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”). The trial court appointed an attorney/guardian ad litem for the minor child. The attorney/guardian asserted that the will was invalid in Florida, making the minor child the only beneficiary of the Florida property under the laws of intestacy. See § 732.103 (providing that if there is no surviving spouse, entire intestate estate passes to decedent’s descendants).

Florida law requires wills to be signed by the testator and two witnesses:

732.502. Execution of wills.—
Every will must be in writing and executed as follows:
(1)(a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses. — The testator’s:
1. Signing, or
2. Acknowledgment:
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.
(c) Witnesses’ signatures.-The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any -will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.

Section 734.104 provides that a foreign will that devises Florida real property and has been admitted to probate in another state may be admitted to probate here only if “[t]he will was executed as required by chapter 732.” § 734.104(l)(a), Fla. Stat. (2010).

There is no dispute that Mr. Payne signed his will without attesting witnesses. But, under Colorado law, his will was admitted to probate there because a holographic will that is not signed by at least two witnesses or notarized is valid if “the signature and material portions of the document are in the testator’s handwriting.” Colo.Rev.Stat. § 16-11-502(2) (2010).

Mr. Payne wrote out his will.

The trial court refused to give full faith and credit to the Colorado order admitting the will to probate because section 732.502(2) does not recognize holographic wills, even if they are valid in the state where executed. As a result, Mr. Payne’s Florida estate will pass to his minor child. See § 732.103 (providing that if there is no surviving spouse, entire intestate estate passes to decedent’s descendants). Ms. Lee argues that section 732.502(2) unconstitutionally restrains a testator’s right to devise property.

The federal Constitution grants no right to dispose of property by will. See In re Estate of Greenberg, 390 So.2d 40, 43 (Fla.1980). Florida recognized no such right until 1968. See art. 1, § 2, Fla. Const. (1968). Significant for our analysis is the 1944 opinion in Taylor v. Payne, 154 Fla. 359, 17 So.2d 615 (1944), overruled on other grounds by Shriners Hospitals for Crippled Children v. Zrillic, 563 So.2d 64 (Fla.1990). The Taylor testator executed a will, within six months of his death, leaving the proceeds from a contract and mortgage to his wife for her lifetime, with any balance still due after her death to a church. Id. at 616. Section 20 of the Probate Act of 1933 provided that if a testator had a spouse or descendants, any devise to a charity was invalid unless executed at least six months before the testator’s death. See id. at 617 (citing § 731.19, Fla. Stat. (1941)). The probate court found the bequest to the church invalid. Id. The church appealed, arguing that the statute unconstitutionally “deprive[d] the testator and the legatees of the right to receive, enjoy and dispose of property without due process of law, and denie[d] them the equal protection of the law in the acquisition and disposition of property.” Id. The supreme court affirmed, holding that no constitutional provision governed the right of testamentary disposition of property; any such right was statutory, without constitutional limitation on regulation. Id.

Taylor influenced the result in In re Estate of Olson, 181 So.2d 642 (Fla.1966), where the supreme court considered the issue now before us:

Whether or not an intelligently written will in the handwriting of the deceased, who was fully competent and cognizant, will be recognized, or voided for the sole reason of the absence of two witnesses, as required in Section 731.07 F.S.; and whether or not such statutory requirement invades and violates constitutional rights.

Id. at 642. Olson affirmed the trial court’s order denying probate of a holographic will. Id. at 644. Citing Taylor, the supreme court held that, although the governing statute may have thwarted the testator’s intent, the statute was constitutional, subject only to legislative change. Id. at 643. The court noted that the statute’s intent in requiring two witnesses’ attestation was “to assure [the will’s] authenticity and to avoid fraud and imposition.” Id.

A 1968 amendment to the Florida Constitution added article I, section 2: “All natural persons are equal before the law and have inalienable rights, among which are the right ... to acquire, possess and protect property....” Revisiting Taylor in Zrillic, the supreme court addressed whether a statutory invalidation of charitable devises made within six months of the testator’s death was unconstitutional. 563 So.2d 64; see § 732.803, Fla. Stat. (1985); Taylor, 154 Fla. 359, 17 So.2d 615. The supreme court overruled Taylor, holding that article I, section 2 of the Florida Constitution protected the right to devise property. Zrillic, 563 So.2d at 67-69. The court observed that the statute, which protected families from disinheritance by testators influenced by charitable organizations, was “not reasonably necessary to accomplish the asserted state goals at the cost of offending property interests protected by the Florida Constitution.” Id. at 69. The court stated that “[although it may be reasonable for the legislature to protect family members who are dependent or in financial need, it is unreasonable to presume, as the statute seems to do, that all lineal descendents are dependents, in need, or are not otherwise provided for.” Id.

Zrillic also held that section 732.803 violated the equal protection guarantees of article I, section 2 of the Florida Constitution and the Fourteenth Amendment of the United States Constitution. Id. “Equal protection analysis requires that classifications be neither too narrow nor too broad to achieve the desired end.” Id. at 69-70. “Section 732.803 create[d] a class consisting of only those testators who die[d] within six months after executing a •will that devised property to a [charity].” Id. at 70. The statute was underinclusive because it did not include other charitable gifts made -without proper deliberation or legacies to other “persons who are in an equal position with religious persons to influence a testator.” Id. at 70 & n. 7 (“Modern policies ... do not seem to suggest that testators need more protection against charities than against greedy relatives.”). The statute also was overinclu-sive because it voided bequests of testators who “were not impermissibly influenced” by the charities and testators whose relatives were not dependent or financially needy. Id. Thus, the statute drew no rational distinction and was “neither just nor reasonably related to a legitimate governmental purpose”; its effect was “to defeat the testator’s express intent without any reasonable relation to the evil sought to be cured.” Id. Important for our analysis, the supreme court left Olson intact.

We acknowledged in In re Estate of Magee, 988 So.2d 1, 5 (Fla. 2d DCA 2007), Zrillic’s holding that the testamentary disposition of property is a constitutionally protected right. In Magee, we addressed whether Florida’s elective share statutes, sections 732.201 to 732.2155, Florida Statutes (2002), violated article I, section 2 of the Florida Constitution. 988 So.2d at 2. We recognized that the legislative purpose of the statutes was “to provide any surviving spouse who has not waived such protections a minority share in the assets of the decedent in the event that spouse did not receive as much through testamentary dispositions.” Id. at 6. Applying a rational basis standard, we upheld the constitutionality of the elective share statute because we found a reasonable relationship to its legitimate public policy objective of protecting a surviving spouse. Id. at 5-6.

Obviously well acquainted with the development in Florida of constitutional protections for the disposition of property, Ms. Lee now asks us to revisit the continued validity of Olson. Recall that Olson observed that requiring two witnesses to a will was “to assure its authenticity and to avoid fraud and imposition.” 181 So.2d at 643. Holographic wills, under Olson, are not as reliable as wills executed in the presence of witnesses. Ms. Lee challenges that assumption and argues that handwritten holographic wills are inherently reliable. “[I]t is exceedingly difficult to forge a successful counterfeit of another’s handwriting throughout an entire document, so that the requirement that the document, or at least its material provisions, be entirely in the testator’s or testatrix’s handwriting, affords protection against a forgery.” Jay M. Zitter, Annotation, Requirement that Holographic Will, or its Material Provisions, Be Entirely in Testator’s Handwriting as Affected by Appearance of Some Printed or Written Matter Not in Testator’s Handwriting, 37 A.L.R. 528, § 2[a] (1985) (footnotes omitted). Ms. Lee notes that twenty-six states allow holographic wills, with statutory provisions to assure reliability. She contends that no rational basis exists to deny probate of all holographic wills without allowing any inquiry into authenticity.

The trial court based its order on Olson, which, unfortunately for Ms. Lee, has not been overruled. She urges us to ignore Olson in light of article I, section 2 of the Florida Constitution and Zrillic. Although the 1968 constitutional amendment and Zrillic may have addressed what some might have viewed as overly paternalistic statutory choices, section 732.502 focuses not on the testator’s choices in making a devise; rather it operates to assure authenticity and reliability. It promotes fulfillment of the testator’s intent. We cannot say that this is an impermissible public policy choice. Moreover, we are not free to jettison binding precedent. See Valdes v. State, 3 So.3d 1067, 1077 (Fla.2009); Chames v. DeMayo, 972 So.2d 850, 855 (Fla.2007); Dorsey v. State, 868 So.2d 1192, 1199 (Fla.2003) (“[T]he doctrine of stare decisis ... yields only upon a significant change in circumstances after the adoption of the legal rule, or when there has been an error in legal analysis.”). Even our supreme court will depart from precedent only when “ ‘necessary to vindicate other principles of law or to remedy continued injustice’ ” or “when an established rule has proven unacceptable or workable in practice.” Tiara Condo. Ass’n v. Marsh & McLennan Cos., 110 So.3d 399, 407 (Fla.2013) (quoting Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1131 (Fla.2005)). In Strand v. Escambia County, the supreme court employed the following factors in considering whether the presumption in favor of stare decisis may be overcome:

“(1) Has the prior decision proved unworkable due to reliance on an impractical legal ‘fiction’? (2) Can the rule of law announced in the decision be reversed without serious injustice to those who have relied on it and without serious disruption in the stability of the law? And (3) have the factual premises underlying the decision changed so drastically as to leave the decision’s central holding utterly without legal justification?”

992 So.2d 150, 159 (Fla.2008) (quoting N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 637 (Fla.2003)); accord Valdes, 3 So.3d at 1077. This test, however, is not for us to apply. We are constrained by precedent unless changed by the supreme court.

Olson controls. Therefore, we affirm, but we certify the following question of great public importance to the supreme court:

DO SECTIONS 732.502(2) AND 734.104(a) VIOLATE ARTICLE I, SECTION 2 OF THE FLORIDA CONSTITUTION BY CATEGORICALLY DEFEATING THE INTENT OF THE TESTATOR OF A HANDWRITTEN HOLOGRAPHIC WILL WITHOUT A RATIONAL RELATION TO THE FRAUD IT SEEKS TO CURE?

Affirmed; question certified.

KELLY and BLACK, JJ., Concur.

      . The will was executed in Colorado and admitted to probate there. Section 15 — 11— 502(2), Colorado Revised Statutes (2010), provides that a will that is not signed by at least two witnesses or acknowledged by the testator before a notary public or other authorized individual is valid as a holographic will if “the signature and material portions of the document are in the testator’s handwriting."

      . Colorado follows Uniform Probate Code § 2-502, which provides:
      2-502. Execution; Witnessed or Notarized Wills; Holographic Wills.
      (a)[Witnessed or Notarized Wills.] Except as otherwise provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:
      (1) in writing;
      (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator's direction; and
      (3) either:
      (A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will; or
      (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgements.
      (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
      (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.


author: NORTHCUTT, Judge.

text:
    Dominic FORTH, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellee.
    No. 2D13-1223.
    District Court of Appeal of Florida, Second District.
    June 27, 2014.
    Rehearing Denied Oct. 27, 2014.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Judson M. Chapman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Pinellas Park, for Respondent.
   NORTHCUTT, Judge.

Dominic Forth’s license to drive was suspended pursuant to section 322.2615(1), Florida Statutes (2011), based on a breath sample that indicated his blood-alcohol content was above the legal limit. Forth requested a formal review of the suspension, which entails a hearing before a hearing officer employed by the Department of Highway Safety and Motor Vehicles. § 322.2615(6). The hearing officer upheld the suspension. Forth sought certiorari review of the hearing officer’s order in the circuit court, §§ 322.2615(14), 322.31, and it quashed the order and remanded for further proceedings. Forth now seeks our second-tier certiorari review and asks us to quash only that portion of the circuit court’s order that remands the case to the hearing officer. We grant the petition on this point.

Forth hired an expert witness to testify on his behalf at the hearing. When the witness was called, the hearing officer sua sponte produced a letter attacking the credibility of the expert, and she placed the letter into evidence herself. Forth objected to the admission of the letter and the action of the hearing officer who, he contended, had departed from her impartial role. The hearing officer noted the objection, but she upheld the suspension of Forth’s license.

On first-tier certiorari review, the circuit court quashed the order, finding that the hearing officer’s actions involving the letter evinced her departure from impartiality. Because the hearing officer was not neutral, Forth was not accorded procedural due process. The court remanded for further proceedings consistent with its opinion. Forth filed a motion for clarification, advising that the Department interpreted the circuit court’s remand for further proceedings as meaning that a new formal hearing under section 322.2615(6) must be held. The circuit court denied Forth’s motion.

Our certiorari review of a circuit court’s review of an administrative decision is limited to determining whether the circuit court afforded due process and whether it applied the correct law. See Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 722-23 (Fla.2012) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995)). In January 2013, when the circuit court ruled on Forth’s petition, this court had already announced its decision in McLaughlin v. Department of Highway Safety & Motor Vehicles, 128 So.3d 815 (Fla. 2d DCA 2012). McLaughlin also involved a challenge to an administrative decision upholding a driver’s license suspension. As we noted, McLaughlin’s suspension period had expired while the matter was being reviewed. The McLaughlin court held that, in such circumstances, we would remand to the circuit court to quash the administrative order but that “no further proceedings [were] necessary on remand because the issue of the validity of the suspension of [the] driver’s license is moot.” Id.

As in McLaughlin, Forth’s license suspension expired while it was under review. Thus the circuit court in this case failed to apply the correct law when it remanded this moot issue to the administrative tribunal. We quash the circuit court’s order to the extent that it remanded the case. We do not disturb the order insofar as it quashed the administrative order.

Petition granted.

ALTENBERND and LaROSE, JJ., Concur.