author: BRYAN, Judge.

text:
    D.M.T.J.W.D. v. LEE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110795.
    Court of Civil Appeals of Alabama.
    Oct. 26, 2012.

      M. Joanne Camp, Opelika, for appellant.

      Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   BRYAN, Judge.

D.M.TJ.W.D. (“the mother”) appeals from a judgment of the Lee Juvenile Court (“the juvenile court”) that terminated her parental rights to two of her children. On appeal, the mother argues that the judgment terminating her parental rights is void because the juvenile court lacked personal jurisdiction over her. She also argues that the judgment is erroneous because it is based on inadmissible hearsay.

The record on appeal reveals the following pertinent facts and procedural history. On October 25, 2010, the Lee County Department of Human Resources (“DHR”) filed a petition to terminate the mother’s parental rights to three children: G.B.D.J. (“G.J”), born in March 1997; K.M.K.J. (“K.J.”), born in February 1998; and M.P.R.J. (“M.J.”), born in December 2000. In the petition, the mother’s address was listed as being in Phenix City, and DHR requested that the mother be served by personal service pursuant to Rule 4.1, Ala. R. Civ. P.

On November 10, 2010, the mother, through an attorney appointed on her behalf, filed an answer to DHR’s petition to terminate her parental rights and her first request for discovery from DHR.

On January 18, 2011, DHR filed an amended petition to terminate the mother’s parental rights. In the amended petition, DHR alleged that the mother’s parental rights to G.J. no longer needed to be terminated because he had been placed in a home with a relative. Thus, the only amendment to the October 2010 petition was to request a judgment terminating the mother’s parental rights to only K.J. and M.J.

On April 19, 2011, DHR filed a second amended petition to terminate the mother’s parental rights. In the April 2011 second amended petition, DHR requested that the mother’s parental rights to only M.J. be terminated because K.J. had been placed in a home with a relative.

On April 20, 2011, the mother filed a motion requesting leave to file an amended answer to DHR’s amended petition to terminate her parental rights. In the motion, the mother’s attorney alleged that he had not had contact with the mother since before DHR filed a petition to terminate the mother’s parental rights, that the mother’s whereabouts were unknown to him, and that he had become aware of certain defenses that the mother could raise. The juvenile court granted the mother’s motion for leave to file an amended answer. In her amended answer, the mother raised, for the first time, the defenses of lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted, and/or failure to join a necessary party. See Rule 12(b), Ala. R. Civ. P.

On April 22, 2011, DHR filed a motion to continue the termination hearing that had been scheduled for April 26, 2011, because the mother had not been served with the petition to terminate her parental rights. The juvenile court granted DHR’s motion and rescheduled the final hearing for July 21, 2011.

On April 28, 2011, DHR filed a motion for service of process by publication on the mother and the alleged father of M.J. Attached to DHR’s motion was an affidavit alleging that the mother’s last known address was in Phenix City, that the mother’s present location was unknown, that a process server had been unable to personally serve the mother, that service of process had not been completed within 90 days of the filing of the petition to terminate the mother’s parental rights, that the child subject to the proceeding had been abandoned in Alabama, and that the mother’s whereabouts could not be ascertained by due diligence. On May 3, 2011, the juvenile court granted DHR’s motion to serve the mother by publication in the Auburn Villager and in the Citizen of East Alabama, two local newspapers in Auburn and Phenix City, respectively.

On July 12, 2011, the mother filed a second amended answer in response to DHR’s second amended petition to terminate the mother’s parental rights to M.J., raising the same Rule 12(b) defenses that had been raised in her first amended answer.

On July 21, 2011, the juvenile court conducted a hearing on DHR’s petition to terminate the mother’s parental rights to M.J., and the mother and her attorney were present at that hearing. At the hearing, the attorney for DHR stated on the record that the mother had been served by publication and that she had been personally served with process by a sheriffs deputy on the day of the hearing. The mother’s attorney stated that the mother was not waiving her service-of-process arguments by her presence at the hearing because, he alleged, she had been involuntarily brought to the hearing from the Lee County Jail. The mother’s attorney also argued that service of process by publication was improper because DHR had not shown “the diligence the state did in order to serve by publication.” The mother’s attorney asked that the action be dismissed, but, in light of the fact that the mother had been personally served on the morning of the hearing, he also requested a continuance of the hearing. The mother’s attorney alleged that the mother had been arrested two or three weeks earlier on a failure-to-pay-child-support charge, that he had made contact with her at the jail two weeks earlier, and that the mother had not been aware of the termination petition at that time.

DHR and MJ.’s guardian ad litem objected to the mother’s motion to continue. The juvenile court heard arguments from M.J.’s guardian ad litem and testimony from Beth Smith, a caseworker in the foster-care unit with DHR, about the mother’s failure to maintain contact with DHR and Smith’s inability to locate the mother using the last known address and telephone numbers that the mother had given DHR. Based on that evidence, the juvenile court denied the mother’s request for a continuance. After the juvenile court denied the motion to continue, the mother, under oath, stated that she waived her right to be present during the remainder of the proceedings and that she understood that she would not able to assist her attorney in her defense.

DHR began presenting its case through the testimony of Smith, who had been assigned the mother’s case in October or November 2010. Smith testified that M.J. had been placed in foster care on April 7, 2009. The mother’s attorney objected to Smith’s testifying regarding any event that occurred before she was assigned the case because she could not testify from personal knowledge. M.J.’s guardian ad litem attempted to submit DHR’s allegedly 600-page case file into evidence as a business record because the DHR caseworkers who had been assigned the case in 2009 and most of 2010 no longer worked for DHR. The juvenile court did not admit the entire case file, but it asked the parties to file briefs regarding its admissibility and continued the hearing to a later date.

On September 2, 2011, the mother filed an objection to a scheduled court date of September 22, 2011, and requested a later court date because she was, at that time, incarcerated in the Lee County Jail and wanted additional time to improve her circumstances. The court apparently granted that motion.

On September 9, 2011, DHR filed a third amended petition to terminate the mother’s parental rights. DHR alleged that a relative resource for KJ. was no longer available, that K.J. was in foster care, and that the mother’s parental rights to K.J. should be terminated.

On December 9, 2011, DHR filed an amended motion for service of process by publication and an affidavit in support of its motion that stated in its entirety:

“1. That the Third Amended Complaint for Termination of Parental Rights was filed in this case on September 9, 2011, and service of process was not completed within 90 days of said filing;
“2. That the children in the above named cases[, M.J. and K.J.,] have had no contact with the parents, or alleged parents, named herein for at least one year, and that the aforementioned children have been abandoned pursuant to Code of Alabama § 12-15-801; and
“8. That the whereabouts of the aforementioned parents, or alleged parents, are unknown.”

The juvenile court conducted a pretrial hearing on December 15, 2011, regarding DHR’s petition to terminate the mother’s parental rights to M.J. and K.J. At that hearing, the mother’s attorney objected to DHR’s motion for service of process by publication because the affidavit filed by DHR failed to state what attempts had been made to locate the mother. He alleged that the mother was in jail in September 2011 when the third amended petition was filed, that DHR had an open child-support case involving the mother, and that DHR should at least have to show at what address service on the mother had been attempted and what efforts DHR had made to serve the mother before service of process by publication could be utilized. In response, the attorney for DHR stated that DHR had not had the paperwork ready to serve the mother while she was in jail, that DHR did not know where the mother was presently located, and that the mother had not contacted DHR to check in or leave any information.

The juvenile court agreed that DHR’s affidavit made only conclusory statements about the mother’s whereabouts being unknown to DHR and did not include any evidence establishing, or even a conclusory statement indicating, that the whereabouts of the mother could not be ascertained with reasonable diligence as required by § 12-15-318, Ala.Code 1975. Accordingly, DHR presented the testimony of Smith to provide evidence of the efforts she had made to locate the mother. Smith testified that she had checked the Medicaid system and the “food-stamp” system in Alabama to see if there was an address for the mother since her release from jail but that she had been unsuccessful in locating an address for the mother. Smith testified that she had heard that the mother’s oldest child and her baby were living with the mother, so Smith had checked the Medicaid and “food-stamp” systems using the mother’s grandchild’s name to try to get an address, but she had not been successful. Smith stated that she had also attempted to locate the mother’s oldest child in an attempt to locate the mother, but she had not been successful.

Smith further testified that she had had an address for the mother in Georgia at some point, but she admitted that she had not called the Georgia Division of Family and Children Services (“DFCS”), the equivalent of DHR in Alabama, to find information about the mother. Smith also admitted that she was aware that the mother had a child-support case pending at the time of the hearing that was being prosecuted by DHR but that she had not recently accessed any records from the child-support-enforcement division of DHR to find information about the mother. When asked why she had not checked DHR’s own records, she responded that she “just ha[d not] done it.” Smith also admitted that she had not attempted to contact the mother while she was in jail.

In response to questioning by the juvenile-court judge, Smith stated that there was not a reason that she could not check the child-support-enforcement records to try and find an address for the mother. She also stated that it was “not easy” to contact another state to try to get information. At the conclusion of the hearing, the juvenile-court judge stated: “I want you to check the child support records, see what you can find, try to make a call to DFCS. If you get stonewalled, put it in an affidavit that you got stonewalled. If you get a response, put it in an affidavit what response you got.” After discussing a date for the final hearing, counsel for DHR stated to the juvenile-court judge: “You want us to contact child support and DFCS in Georgia; is that correct?” In response the juvenile-court judge stated: “Yes. And just in your affidavit report — in your affidavit just report back what the result of that was.”

On December 16, 2011, the juvenile court entered an order after the pretrial hearing. The juvenile court set the matter for trial on April 19, 2012, “the same date that the [m]other was last served with a [cjoui't date on these matters.” Regarding DHR’s motion for service by publication, the juvenile court ordered DHR to “submit evidence within [seven] days as to its queries with DHR child support [and DFCS]....” On the same date, DHR filed an amended motion for service of process by publication with a supporting affidavit. However, the affidavit attached to the motion was identical to the affidavit filed by DHR on December 9, 2011, before the pretrial hearing — the same affidavit that the juvenile court had determined did not meet the standard set forth in § 12-15-318 during the December 15 pretrial hearing. On December 22, the mother filed a third amended answer in response to DHR’s third amended petition, raising the same Rule 12(b) defenses that she had raised in her first and second amended answers.

On January 17, 2012, the juvenile court granted DHR’s request to serve the mother by publication in the Auburn Villager in Auburn, the Citizen of East Alabama in Phenix City, and the Tipton Conservative in Tipton, Iowa. On February 27, 2012, the juvenile court entered an amended order granting DHR’s motion to serve the mother by publication in the Auburn Villager, the Citizen of East Alabama, the Tipton Conservative, and the Columbus Ledger-Enquirer in Columbus, Georgia. All four newspapers filed affidavits of publication by April 13, 2012.

The juvenile court conducted a final hearing on April 19, 2012. Smith testified that, on December 27, 2011, she had checked with the child-support division of DHR and that that division had two possible addresses for the mother — one in Phe-nix City and one in Columbus, Georgia. She learned that the mother had changed her name from D.W., which was the name she was known by during the pendency of the termination proceeding, to R.D. Smith stated that she had mailed certified letters using both names to both addresses asking the mother to contact her. The same day, she contacted DFCS in Muscogee County, Georgia, and asked if a representative would go to the address Smith had found for the mother in Columbus to see if the mother actually lived there. In January 2012, Smith got the return receipt from the certified mail back from the address in Columbus with the mother’s signature “R.D.” on the return receipt. Smith received a call from the mother in February 2012, and the mother inquired about the address of K.J.’s father’s girlfriend because she wanted to file harassment charges. Smith told the mother that the final hearing was scheduled for April 19, but she did not ask the mother any questions. Smith admitted that she had not submitted this information by affidavit after the December 15, 2011, pretrial hearing, and she stated that she had not done so because she had included that information in a court report that she had filed with the juvenile court on December 27, 2012, and she thought that she was only required to demonstrate to the court her efforts to locate the mother.

DHR presented evidence indicating that it had attempted service on the mother by a private process server on February 22, 2012, at the address in Columbus at which the mother had accepted the certified letter and that it had again attempted service on the mother through the Muscogee County sheriffs department on February 24, 2012. The juvenile court noted that the court file reflected that service had been attempted on those dates and had failed. Service by certified mail sent to the address in Columbus on March 19, 2012, was returned to DHR.

Also at the April 19, 2012, hearing, the guardian ad litem for M.J. withdrew her motion to submit DHR’s entire case file as evidence in light of DHR’s stipulation that it would present evidence to support the petition to terminate the mother’s parental rights to M.J. and K.J. based only on evidence of events that occurred after July 21, 2011, i.e., the date of the last hearing.

On May 2, 2012, the juvenile court entered an order terminating the mother’s parental rights to K.J. and M.J. In its judgment, the juvenile court found that the mother had been properly served and that it had personal jurisdiction over the mother and subject-matter jurisdiction over the petition. The juvenile court further stated that, “[a]fter hearing all ... the evidence presented on April 19, 2012, the [c]ourt hereby determines that it is in the best interest of ... [K.J. and M.J.] that the parental rights of the mother ... be terminated.” Without filing a postjudgment motion, the mother timely filed a notice of appeal to this court.

We will first consider the mother’s argument that the juvenile court’s judgment terminating her parental rights to M.J. and K.J. is void because the juvenile court lacked personal jurisdiction over her because she was never properly served notice of DHR’s petition to terminate her parental rights.

“Our supreme court has recognized that
“ ‘[o]ne of the requisites of personal jurisdiction over a defendant is “perfected service” of process giving notice to the defendant of the suit being brought.” “When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.” A judgment rendered against a defendant in the absence of personal jurisdiction over that defendant is void.’
“Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993) (citations omitted).”

R.M. v. Elmore Cnty. Dep’t of Human Res., 75 So.3d 1195, 1199 (Ala.Civ.App.2011).

Initially, we note that the mother did not waive the defense of lack of personal jurisdiction by failing to raise it in her first responsive pleading, i.e., her answer to DHR’s October 25, 2010, petition to terminate her parental rights that was filed on November 10, 2010. The record reveals that the mother sought leave to amend her answer to include the defense of lack of personal jurisdiction, that DHR did not object to that motion, and that the juvenile court allowed the mother to amend her answer. Our supreme court has held:

“Rule 12[, Ala. R. Civ. P.,] and Rule 15[, Ala. R. Civ. P.], when read together, allow a defendant to amend an answer to include a Rule 12(b) defense, which is normally asserted, at the option of the pleader in the initial responsive pleading or in a motion filed before the initial responsive pleading, provided that the motion to amend is filed more than 42 days before trial.
“ ‘ “Therefore, any defense in law or in fact available to a party at the time he serves his responsive pleading should be asserted. But the policy of compelling the assertion of defenses by responsive pleading is not absolute. The liberal amendment policies under Rule 15 allow a party to add defenses to his responsive pleading that have been overlooked by mistake or neglect or that have become available to him after he has served his pleading, provided that the amendment does not prejudice the opposing party.” ’
“C. Wright & A. Miller, Federal Practice and Procedure § 1348, at 538 (1969).”

Ex parte Fidelity Bank, 893 So.2d 1116, 1120 (Ala.2004). See also D.L.C. v. C.A.H., 764 So.2d 562, 564 (Ala.Civ.App.1999) (holding that a father acting pro se did not waive the defense of lack of personal jurisdiction even though he did not raise in it in his first responsive pleading because a subsequently filed motion to dismiss could be considered as an amendment to the answer filed by the father). Accordingly, we conclude that the mother did not waive her jurisdictional argument.

Rule 1(A), Ala. R. Juv. P., provides, in pertinent part: “These Rules ... shall govern the procedure for all matters in the juvenile court. If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature.” Regarding the issuance of notice and service of summons, Rule 18(A), Ala. R. Juv. P., provides, in pertinent part:

“(A) Summons. Service of summons shall be pursuant to the Alabama Rules of Civil Procedure, except as hereinafter provided:
“(1) After a petition alleging that a child is delinquent, in need of supervision, or dependent has been filed, the clerk of the circuit court shall ensure that summonses are issued ... to the parent or parents ... requiring them to appear personally before the juvenile court at the time fixed to answer or testify as to the allegations of the petition. A copy of the petition shall be attached to each summons.
“(2) There shall be no service by publication of any proceeding in the juvenile court except in proceedings to terminate parental rights.
“(8) The service of the summons shall give the juvenile court jurisdiction over the persons served, but the inability to serve any party shall not deprive the court of jurisdiction to proceed.
“(4) An adult who is a party may waive service of the summons by written stipulation or by voluntary appearance at the hearing.”

On appeal, the mother does not contend that the service of process she received on July 21, 2011, before the start of the hearing conducted on that date, was insufficient or otherwise improper. See Rule 4(c)(1), Ala. R. Civ. P. (providing for service on an individual defendant); and Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App.2005) (citing Boshell v. Keith, 418 So.2d 89, 92-93 (Ala.1982)) (“[Tjhis court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.”). Although it is not clear in the record, we can assume that the mother was served with the petition that was then pending before the juvenile court, i.e., the petition to terminate the mother’s parental rights to M. J. only. The juvenile court clearly indicated at the start of that hearing that the parties were present “in the matter of [M.J.] ” and that they were there on a “petition to terminate parental rights in regards to [M.J.] filed by [DHR].” Accordingly, we conclude that the mother received service of process of DHR’s petition to terminate her parental rights to M.J. on July 21, 2011, when she received personal service before the start of the July 21, 2011, hearing.

However, we will not go so far as to conclude that the mother was given notice, at that time, that DHR intended to terminate her parental rights to K.J. The record clearly reflects that DHR did not, after it removed KJ.’s name from the petition to terminate the mother’s parental rights in April 2011, amend the petition to terminate the mother’s parental rights to include K.J. until September 9, 2011. Thus, we agree with the implicit determination of the juvenile court, DHR, and the mother, that the mother was entitled to service of process of the third amended petition pursuant to Rule 13(A)(1) and Rule 4, Ala. R. Civ. P., insofar as it included an additional request that the juvenile court terminate the mother’s parental rights to K.J. in addition to M.J.

It is undisputed from the record that the only way that the mother would have been served notice of DHR’s petition to terminate her parental rights to K.J. is if service of process by publication was proper. In determining whether the juvenile court properly allowed the mother to be served notice of DHR’s petition to terminate her parental rights to K.J. by publication, we are guided by this court’s decision in L.K. v. Lee County Department of Human Resources, 64 So.3d 1112 (Ala.Civ.App.2010). In L.K., this court determined that § 12-15-318, Ala.Code 1975, not Rule 4.3, Ala. R. Civ. P., “regulates the procedure for service by publication in termination-of-parental-rights cases.” Id. at 1114. Section 12-15-318 provides:

“(a) Except as otherwise provided by the Alabama Rules of Juvenile Procedure and this section, service of process of termination of parental rights actions shall be made in accordance with the Alabama Rules of Civil Procedure.
“(b) If service of process has not been completed within 90 days of the filing of the termination of parental rights petition, the petitioner shall request service by publication.
“(c) Service of process by publication may not be ordered by the juvenile court unless the following conditions are met:
“(1) The child who is thé subject of the proceedings was abandoned in the state.
“(2) The state or private department or agency having custody of the child has established, by evidence presented to the juvenile court, that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.
“(d) Service shall be made by publication in a newspaper of general circulation in the county of the juvenile court having jurisdiction and in the county of the last known address of the parent or parents of the abandoned child, at least once a week for four consecutive weeks.”

In L.K., we construed § 12-15-318 for the first time and held:

“Section 12-15-318(c) clearly provides that two conditions must be satisfied in order for a juvenile court to grant a motion to serve a parent by publication in a termination-of-parental-rights case. First, the juvenile court must find that the child has been abandoned in this state. Second, the juvenile court must find, based on evidence presented to it by DHR or by any other person having legal custody of the abandoned child, ‘that the absent parent or parents are avoiding service of process or their whereabouts are unknown and cannot be ascertained with reasonable diligence.’ § 12-15-318(c)(2). If those conditions are met, the juvenile court can then order service by publication as set out in § 12-15-318(d).”

Id. at 1114-15 (emphasis added).

On appeal, as she did during the proceedings below, the mother argues that DHR failed to present evidence pursuant to § 12-15-318(c)(2) to establish that the mother’s whereabouts could not be ascertained with reasonable diligence.

The record reveals that, on December 9, 2011, 91 days after DHR had filed its September 9 third amended petition, DHR filed an amended motion for service by publication alleging that the affidavit attached to the motion demonstrated “that the whereabouts of the parents ... are unknown and cannot be ascertained with reasonable diligence.” However, the affidavit attached to the motion stated only that service of process had not been completed in 90 days, that M.J. and K.J. had had no contact with “the parents or the alleged parents” for at least 1 year, that M.J. and K.J. had been abandoned in the state, and that the whereabouts of the “aforementioned parents or alleged parents” were unknown.

The juvenile court subsequently conducted a pretrial conference on December 15, 2011, at which the mother’s attorney objected to DHR’s motion for service of process by publication essentially because DHR had not complied with § 12-15-318(c)(2). The juvenile court agreed that DHR had made only eonclusory statements about the mother’s whereabouts being unknown in its affidavit. Accordingly, Smith gave testimony under oath concerning her efforts to locate the mother. The juvenile court was apparently unsatisfied by DHR’s efforts to locate the mother because it specifically instructed Smith to make additional efforts to locate the mother and to file an affidavit, i.e., evidence, setting forth the additional efforts she had made and whether she was successful in locating the mother. We agree that the evidence presented by DHR on December 15, 2011, did not establish that, at the time of that hearing, DHR had made reasonably diligent efforts to locate the mother.

It is undisputed that DHR did not present the juvenile court with an affidavit of its further efforts to locate the mother. Despite this, the juvenile court issued an order permitting service of process by publication on January 17, 2012. The record indicates that the juvenile court received a notice of failure of service on the mother on February 22 and February 24, 2012, before it issued an amended order on February 24, 2012, allowing the mother to be served with process by publication, including notice through a newspaper in Columbus. However, the record reveals that, at that time, the juvenile court had before it no additional evidence indicating that DHR had taken the additional steps the juvenile court had deemed necessary to try to locate the mother. Without additional evidence, there was no way for the juvenile court to know the significance of the failure of service at a specific address at the time it issued its order allowing DHR to serve the mother notice by publication. That evidence was not provided until Smith presented additional testimony at the April 19, 2012, hearing, almost two months after the juvenile court had allowed service of process by publication. Accordingly, we conclude that DHR failed to establish by evidence presented to the juvenile court that the whereabouts of the mother could not be ascertained with reasonable diligence before service of process by publication was ordered by the juvenile court.

This court is gravely concerned by DHR’s failure to comply with the plain language of § 12-15-318 even after the juvenile court made it perfectly clear that DHR needed to establish by evidence, i.e., an affidavit, that the mother’s whereabouts could not be ascertained with reasonable diligence. As we stated in L.K.:

“Just as strict compliance is required regarding the civil rules of service of process, see Johnson v. Hall, 10 So.3d 1031, 1037 (Ala.Civ.App.2008), so must we also require strict compliance with the statute regarding service of process applicable to termination-of-parental-rights proceedings. Those proceedings strike at the very heart of the family unit. See Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). In a termination-of-parental-rights case, the state is seeking to irreversibly extinguish a fundamental liberty interest more precious than any property right, the right to associate with one’s child. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Unlike a judgment divesting a parent of custody, a judgment terminating parental rights is immediate, permanent, and irrevocable. See C.B. v. State Dep’t of Human Res., 782 So.2d 781, 785 (Ala.Civ.App.1998) (‘termination of parental rights is an extreme action that cannot be undone; it is permanent’). Out of respect for those fundamental rights, due process must be observed. Santosky, supra.

64 So.3d at 1115.

In light of our determination that DHR did not strictly comply with § 12-15-318(c)(2), we conclude that DHR did not perfect service on the mother insofar as DHR petitioned to terminate the mother’s parental rights to K.J. Accordingly, the juvenile court did not obtain personal jurisdiction over the mother regarding DHR’s petition to terminate her parental rights to K.J., and the juvenile court’s judgment, insofar as it terminated the mother’s parental rights to K.J., is void. Because an appellate court is required to dismiss an attempted appeal from a void judgment, we dismiss this appeal with instructions to the juvenile court to vacate its May 2, 2012, judgment insofar as it terminated the mother’s parental rights to K.J. See L.K., 64 So.3d at 1116.

Because we have concluded that the juvenile court had personal jurisdiction over the mother in regard to DHR’s petition to terminate the mother’s parental rights to M.J., we will discuss the second issue raised in the mother’s appeal insofar as it pertains to the merits of the juvenile court’s judgment terminating the mother’s parental rights to M.J. The mother argues that “the entire court report/record of DHR was [in]admissible under the business record exception to the hearsay rule of evidence.” See Rule 803(6), Ala. R. Evid. The record reflects that MJ.’s guardian ad litem withdrew her request to submit DHR’s entire record of the case involving the mother and her five children and that that record was never submitted into evidence. Accordingly, the question whether such a record was admissible under Rule 803(6) is moot.

To the extent that the mother argues that some of Smith’s testimony during the July 21, 2011, hearing was inadmissible because the testimony was based on information in a “packet” that contained DHR’s entire record on the mother and that was made in anticipation of litigation, we conclude that such an error, if there was one, was harmless. See Rule 45, Ala. R.App. P. As noted above, DHR’s case file was not submitted into evidence, and the mother has not directed this court’s attention to a place in the record where Smith relied on information in the “packet” referred to in her argument to answer a question. See Rule 28(a)(10), Ala. R.App. P. (requiring an appellant to present “[a]n argument containing the contentions of the appellant ... with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on”). Moreover, at the April 19, 2012, hearing, DHR stated on the record that it intended to prove its case by presenting evidence of facts that had occurred only after the July 21, 2011, hearing. Furthermore, in its final judgment terminating the mother’s parental rights to M.J., the juvenile court indicated that its decision to terminate the mother’s parental rights was based on the evidence presented at the April 19, 2012, hearing. Accordingly, we cannot conclude that the mother has demonstrated that the juvenile court committed reversible error regarding the merits of its judgment terminating the mother’s parental rights to M.J.

Accordingly, the mother’s appeal from the judgment terminating her parental rights to K.J. is dismissed, albeit with instructions to the juvenile court to vacate its judgment insofar as it terminated the mother’s parental rights to K.J. The remainder of the juvenile court’s judgment, insofar as it terminated the mother’s parental rights to M.J., is affirmed.

APPEAL DISMISSED IN PART WITH INSTRUCTIONS; JUDGMENT AFFIRMED IN PART.

PITTMAN, THOMAS, and MOORE, JJ., concur.

THOMPSON, P.J., concurs in the result, •'without writing.

      . The record indicates that the mother had 5 children but that DHR did not seek to terminate the mother’s parental rights to 2 of her 5 children because 1 child was 18 years old and a relative resource had been provided for another child.

      . DHR’s petition also sought to terminate the parental rights of the natural father of G.J. and KJ. and the alleged natural father of MJ. Neither man participated in the termination proceedings, and neither man has appealed any part of the juvenile court’s judgment.

      . See Rule 13(A)(4), Ala. R. Juv. P. ("An adult who is a party may waive service of the summons ... by voluntary appearance at the hearing.”). However, whether the mother was brought involuntarily to the hearing is not clear from the record. The juvenile-court judge stated on the record that he had not entered a transport order requiring the sheriff to bring the mother from the jail to the hearing, and there is no indication in the record that DHR had subpoenaed the mother to appear at the hearing.

      . As set forth above, DHR was aware that the mother was in the Lee County Jail at least by July 21, 2011, and a pleading in the record filed by the mother's attorney stated that the mother was still in jail as of September 2, 2011.


source: Caselaw Access Project

author: JOINER, Judge. WINDOM, Presiding Judge,

license: Public Domain

text:
    Nathan SHELLY v. ALABAMA DEPARTMENT OF CORRECTIONS.
    CR-11-1618.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2012.

      Nathan Shelly, pro se.
    Luther Strange, atty. gen., and Scott L. Rouse, asst. atty. gen., for appellee.
   JOINER, Judge.

Nathan Shelly appeals the summary denial of his petition for a writ of habeas corpus .challenging the calculation of his sentence by the Alabama Department of Corrections (“the Department”). For the reasons set forth below, we reverse.

In January 2009, Shelly was sentenced to 10 years’ imprisonment on a manslaughter conviction and placed in the custody of the Department. (C. 12.) As the Department recognized in its pleadings below, under § 14-9-41, Ala.Code 1975 (“the Act”), Shelly is generally “entitled to earn a deduction from the term of his sentence” because he is serving a term of imprisonment of 15 years or less, and because he has not been convicted of a Class A felony or a criminal sex offense involving a child. Prior to March 9, 2012, Shelly was classified as a “Class I prisoner” and earning a deduction — commonly referred to as “good time” — of 75 days for every 30 days he served. (C. 12.) See § 14-9-41(a)(l), Ala. Code 1975. Effective March 9, 2012, however, the Department determined — based on a 1997 opinion of the Alabama Attorney General interpreting the good-time statute — that inmates convicted of manslaughter could be considered only “Class II prisoners” and, thus, could earn good time at a rate of no more than 40 days for every 30 days served. (Department’s brief, pp. 5-6.) “Consequently, [those] inmates’ good time balances and minimum release dates were recalculated by the Department Central Records Division.” (Department’s brief, p. 6.) As a result of the Department’s determination, Shelly’s rate of earning good time was changed, his earned-good-time balance dropped, and his minimum-release date changed from April 2, 2012, to June 13, 2013. (C. 12-13.)

In May 2012, Shelly filed in the Limestone County Circuit Court a petition for a writ of habeas corpus. (C. 7.) In his petition, Shelly argued that he had been deprived of his earned good time without due process and that the Department was incorrectly interpreting the good-time statute. (C. 8-10.) In response, the Department asserted that its newly implemented interpretation of the good-time statute was correct and consistent with the 1997 attorney general opinion; the Department also argued that Shelly had not been unlawfully deprived of his earned good time because, the Department argued, Shelly could hold no interest in deductions to which he was not lawfully entitled. The circuit court agreed with the Department and summarily dismissed Shelly’s petition.

On appeal, Shelly argues, among other things, that

“[the Department] fail[ed] to demonstrate[] before the [circuit] court how Shelly was prohibited from earning good time credit in Class I earning status, how he was not entitled to the good time credit he had accumulated in Class I earning status, and how manslaughter is a violent attack which would constitute an assault.”

(Shelly’s brief, p. 13.) The Department argues, however, that “[t]he trial court correctly held that inmates convicted of manslaughter are ineligible to receive good time in Class I earning status and ... that [the] attorney general opinion ... is a correct interpretation of the [good-time statute].” (Department’s brief, p. 9.) As the Department acknowledges in its brief, “[a]t issue in this case is the interpretation of a single sentence in the [good-time statute].” (Department’s brief, p. 9.)

The issue before this Court is whether the Act prohibits prisoners like Shelly— who were convicted of manslaughter and sentenced to not more than 15 years— from being classified as a “Class I prisoner” for the purposes of earning good time. We hold that it does not.

This Court generally reviews the denial of a habeas petition under an abuse-of-discretion standard. Miller v. State, 668 So.2d 912, 917 (Ala.Crim.App.1995). See also Montgomery v. State, 967 So.2d 103 (Ala.Crim.App.2007); Ward v. State, 929 So.2d 1048 (Ala.Crim.App.2005). However,

“[b]ecause the issue presented here involves a review of the circuit court’s conclusion of law and its application of the law to undisputed facts, this Court applies a de novo standard of review. Further, the interpretation of a statute presents a question of law and, thus, mandates de novo review.”

Johnson v. State, 89 So.3d 205, 206 (Ala.Crim.App.2011) (citations omitted).

As a threshold matter, we note that

“ ‘ “[t]he touchstone of legislative construction is to ascertain and effectuate the intent of the legislature as expressed in the statute.” Horn v. Citizens Hosp., 425 So.2d 1065, 1070 (Ala.1982) (emphasis added). This Court gives effect to the intent of the legislature as expressed in the plain, unambiguous language of the statute. Jefferson County Comm’n v. Edwards, 32 So.3d 572, 586 (Ala.2009).’
“Ex parte Catlin, 72 So.3d 606, 607-08 (Ala.2011) (Cobb, C.J., concurring specially).
“ ‘It is a well established principle of statutory interpretation that “[w]here the meaning of the plain language of the statute is clear, it must be construed according to its plain language.” Ex parte United Serv. Stations, Inc., 628 So.2d 501, 504 (Ala.1993). “Principles of statutory construction instruct this Court to interpret the plain language of a statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous.” Ex parte Pratt, 815 So.2d 532, 535 (Ala.2001).
“Crawford v. State, 100 So.3d 610, 614 (Ala.Crim.App.2011).”

J.D.I. v. State, 77 So.3d 610, 616 (Ala.Crim.App.2011). In sum, this Court must determine whether the language of § 14-9-41, Ala.Code 1975, is plain or ambiguous. If the language of the statute is plain, this Court must apply the plain language to mean exactly what it says.

The relevant portions of § 14-9-41, Ala. Code 1975, states:

“(a) Each prisoner who shall hereafter be convicted of any offense against the laws of the State of Alabama and is confined, in execution of the judgment or sentence upon any conviction, in the penitentiary or at hard labor for the county or in any municipal jail for a definite or indeterminate term, other than for life, whose record of conduct shows that he has faithfully observed the rules for a period of time to be specified by this article may be entitled to earn a deduction from the term of his sentence as follows:
“(1) Seventy-five days for each 30 days actually served while the prisoner is classified as a Class I prisoner.
“(e) Provided, however, no person may receive the benefits of correctional incentive time if he or she has been convicted of a Class A felony or has been sentenced to life, or death, or who has received a sentence for more than 15 years in the state penitentiary or in the county jail at hard labor or in any municipal jail. No person may receive the benefits of correctional incentive time if he or she has been convicted of a criminal sex offense involving a child as defined in Section 15-20-21(5). No person may be placed in Class I if he or she has been convicted of an assault where the victims of such assault suffered the permanent loss or use or permanent partial loss or use of any bodily organ or appendage. No person may be placed in Class I if he or she has been convicted of a crime involving the perpetration of sexual abuse upon the person of a child under the age of 17 years.”

(Emphasis added.)

It is undisputed that the only question is whether the above-underlined “assault” provision prohibits prisoners like Shelly — who were convicted of manslaughter and received a sentence of 15 years or less — from being classified as a “Class I prisoner” for the purpose of earning good time. In deciding in May 2012 that a prisoner convicted of manslaughter could not be classified as a Class I prisoner for the purpose of earning good time, the Department relied on a 1997 opinion from the attorney general. In the 1997 opinion, the Office of the Attorney General addressed whether the Department may “classify a defendant convicted of manslaughter as a Class I prisoner for the purposes of computing correctional incentive time under [§ 14-9-41, Ala.Code 1975].” (C. 23.) The attorney general concluded that a defendant convicted of manslaughter could not lawfully be classified as a Class I prisoner for the purpose of earning good time. (C. 25.) The analysis underpinning this conclusion is, in total, as follows:

“Any person convicted of manslaughter has caused the death of another person and, therefore, has committed an assault resulting in the permanent loss or use of the victim’s bodily organs or appendages. A person convicted of manslaughter is not eligible for classification as a Class I prisoner for the purposes of § 14-9-41.”

(C. 25.)

Although the 1997 attorney general’s opinion may constitute persuasive authority, it is advisory in nature, and this Court is not obligated to follow it. See State Dep’t of Revenue v. Arnold, 909 So.2d 192, 194 (Ala.2005) (noting that “such opinions are not controlling, but merely advisory”); State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001) (“We recognize that ‘[w]hile an opinion of the attorney general is not binding, it can constitute persuasive authority.’ ” (quoting Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344, 1346 (Ala.1997))); Cantrell v. Walker Builders, Inc., 678 So.2d 169, 173 (Ala.Civ.App.1996) (“Opinions of the attorney general are advisory in nature, and we are not obligated to follow them.”).

The Department contends on appeal that the term “assault” as used in § 14-9-41, Ala.Code 1975, “does not particularly reference ... any of the felonies specifically denominated as ‘assault’ in the Alabama Criminal Code” and that “the phrase ‘an assault’ is a generic reference to any criminal offense in the nature of an assault.” (Department’s brief, p. 10.) The Department also argues that “the notion of ‘an assault’ including manslaughter is not contrary to the plain language of [the Act].” (Department’s brief, p. 11.) We disagree with these contentions for two reasons.

First, the Act speaks to individuals “convicted of an assault,” § 14-9-41(e), Ala.Code 1975. The legislature could have, but did not, use the word “offense” or “crime”; instead, it used the word “assault.”

“We must ... bear in mind that ‘ “[t]here is a presumption that every word, sentence, or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each, and also that no superfluous words or provisions were used.” ’ ”

State v. Adams, 91 So.3d 724, 736 (Ala.Crim.App.2010) (quoting Sheffield v. State, 708 So.2d 899, 909 (Ala.Crim.App.1997), quoting in turn 82 C.J.S. Statutes § 316, at pp. 551-52 (1953)). In Alabama, an “assault” is generally a crime in which one person causes physical injury to another. §§ 13A-6-20, 13A-6-21, and 13A-6-22, Ala.Code 1975. Manslaughter, unlike assault, is a crime in which one person causes the death of another. § 13A-6-3, Ala.Code 1975. Although the Department contends that manslaughter deflnitionally constitutes a violent assault, Alabama law makes a distinction between those crimes that result in injury, however great — assault — and those crimes that result in death — murder, manslaughter, and criminally negligent homicide. Accordingly, the plain reading of § 14-9-41 (e), Ala.Code 1975, does not support reading “convicted of an assault” to encompass a defendant convicted of manslaughter.

Second, “convicted of an assault” as referenced in § 14-9-41 (e) does not stand alone; even if this Court were to agree with the Department that the phrase “convicted of an assault” in § 14-9-41(e) encompassed a manslaughter conviction, such a conclusion would be insufficient to support a finding that the “assault” provision of § 14-9-41(e) applies to manslaughter. Instead, reading the statute as a whole, the question is whether manslaughter is an assault “where the victims of such assault suffered the permanent loss or use or permanent partial loss or use of any bodily organ or appendage.” § 14-9-41(e), Ala. Code 1975. The Department contends that “[i]t is axiomatic ... that manslaughter constitutes a violent assault which permanently deprives the victim of the use of his or her body, including all its organs and appendages.” (Department’s brief, p. 12.)

The Department’s argument, however, is not supported by the language of the Act; specifically, the Department’s interpretation necessarily inserts into the Act a word that is not used — death. This Court is required to give meaning and effect to the language used in the statute, and the language in § 14-9-41(e) speaks to injury, not death. This conclusion is bolstered by the resemblance of the assault provision to § 13A-6-20(a)(2), Ala.Code 1975, which recognizes that first-degree assault is committed if “[w]ith intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such an injury to any person.”

In support of its interpretation of § 14-9-41 (e), the Department relies on Hasty v. State, 615 So.2d 1323 (Ala.Crim.App.1993). In that case, Hasty was convicted of second-degree rape and did not earn good-time deductions as a Class I prisoner; Hasty filed a petition for a writ of habeas corpus and argued that he was “being unjustly denied Class I good time deductions.” 615 So.2d at 1323. In Hasty, this Court addressed the following language from an earlier version § 14-9-41(e): “No person shall be placed in Class I if he or she has been convicted of a crime involving the perpetration of sexual abuse upon the person of a child under the age of 17 years.” 615 So.2d at 1323. With regard to this provision of § 14-9-41 (e), this Court held:

“Clearly, the legislature was using the generic term ‘sexual abuse’ and did not intend to deny Class I benefits only to those offenders convicted of the offenses of sexual abuse in the first and second degree while awarding Class I benefits to those offenders convicted of the more serious offenses of rape and sodomy. Obviously, the legislature’s use of the words ‘perpetration of sexual abuse’ was intended to include any sexual offense committed against a person under 17 years of age.”

Hasty, 615 So.2d at 1323.

Relying on Hasty, the Department argues that, like that portion of former § 14-9-41 (e) that references “sexual abuse,” the phráse “an assault” is a “generic term.” (Department’s brief, p. 10.) We disagree.

We agree with the Department that the phrase interpreted by this Court in Hasty spoke to general type of crime. Although the provision discussed in Hasty referenced “sexual abuse,” it did not reference the specific crime of “sexual abuse”; instead, “ ‘the legislature’s use of the words “perpetration of sexual abuse” [in § 14-9-41(e) ] was intended to include any sexual offense committed against a person under the age of 17 years of age.’ ” D.L.S. v. State, 675 So.2d 1363, 1364 (Ala.Crim.App.1995) (quoting Hasty, supra). As this Court noted in D.L.S., “[o]bviously, the legislative intent of § 14-9-41(e) is to protect children from sexual predators.” 675 So.2d at 1364.

The language of § 14-9-41 (e) being construed in Hasty speaks to an inmate “convicted of a crime involving the perpetration of sexual abuse upon the person of a child under the age of 17 years.” Hasty, 615 So.2d at 1323. In this provision, the legislature first broadly identified an inmate “convicted of a crime” and then modified that broad identification with the phrase “involving the perpetration of sexual abuse...."

As explained above, the language in the assault provision of the Act is not as broad. In the assault provision of § 14-9-41(e), the legislature did not broadly identify an inmate convicted of a “crime” or “offense,” but instead, first identified an inmate convicted of the specific crime of assault; from this specific identification, the legislature then narrowed that assault conviction to those “where the victims of such assault suffered the permanent loss or use or permanent partial loss or use of any bodily organ or appendage.” § 14-9-41 (e), Ala. Code 1975.

Moreover, the protections in the sexual-abuse provision of § 14 — 9-41 (e) and the protections envisioned by the assault provision are simply different; the sexual-abuse provision was designed to broadly protect children from all manner of child-sex offenders, while the assault provision is narrowly designed to protect a small subset of assault victims. As noted above, the assault provision resembles one portion of the first-degree assault statute, and it is clear that the assault provision applies only to a small set of assault convictions. Accordingly, it is not simply a generic assault, but an assault resulting in very specific injuries to a victim. For these reasons, the assault provision of § 14-9-41(e), Ala.Code 1975, is not analogous to the child-sex-offender provision construed in Hasty.

The dissent contends that “assault,” as used in § 14-9-41 (e), Ala.Code 1975, encompasses manslaughter, and states that “[t]he conclusion that the legislature intended for § 14-9-41(e), Ala.Code 1975, to prohibit inmates convicted of manslaughter from receiving Class I good-time credit is buttressed by the fact that assault is a lesser-included offense of manslaughter.” 109 So.3d at 1155 (Windom, P.J., dissenting). In support of the idea that a assault is a lesser-included offense of manslaughter, the dissent relies on Coleman v. State, 344 So.2d 1249, 1250 (Ala.Crim.App.1977), and Beason v. State, 5 Ala.App. 103, 105, 59 So. 712, 712 (1912).

In Coleman, a case involving the “possession of prohibited narcotics,” this Court stated that the “[c]harge of murder includes assault with intent to murder.” 344 So.2d at 1250. Notably, however, this statement is supported by Thomas v. State, 125 Ala. 45, 27 So. 920 (1900), and Letcher v. State, 145 Ala. 669, 39 So. 922 (1906), two cases discussing “assault with intent to murder” as a lesser-included offense of murder. These cases, however, were decided well before the effective date of the current Alabama criminal code, and “assault with intent to murder” is no longer a recognized offense in Alabama. For all that appears, “assault with intent to murder” would now be characterized as attempted murder. See generally Langley v. State, 381 So.2d 223, 224 (Ala.Crim.App.1980) (“[T]o constitute an assault with intent to murder there must be both intent to kill and malice, that an assault with intent to murder is an assault with the intent to take life, under circumstances which if successful would constitute murder, either in the first degree or in the second degree.”).

In Beason, an individual charged with manslaughter was convicted of “assault and battery.” 5 Ala.App. at 104, 59 So. at 712. The Beason court concluded that “[i]t is manifest that the offense of an assault and battery upon the person of the wife by the defendant by stamping her with his foot or feet is included in this charge of manslaughter.” 5 Ala.App. at 105, 59 So. at 712. As with Thomas and Letcher, the 1912 Beason decision involves a lesser-included offense that no longer exists, specifically, assault and battery; at the time Beason was decided, the crime of assault was not defined as it is now. See generally Bennett v. State, 57 Ala.App. 568, 570, 329 So.2d 627, 629 (Ala.Crim.App.1976) (“ ‘An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.’ ” (quoting Tarver v. State, 43 Ala. 354 (1869))).

The dissent provides no caselaw interpreting current Alabama law to support the proposition that assault is a lesser-included offense of manslaughter and to now so hold would change Alabama law. The dissent quotes C.P. v. State, 597 So.2d 246, 247 (Ala.Crim.App.1992), for the proposition that “it would be impossible to commit [manslaughter] without committing [assault].” (Brackets in dissent.) This Court in C.P.—a case involving an individual indicted for attempted third-degree burglary but found guilty of criminal mischief — actually stated that “it would be impossible to commit a greater offense without committing the included offense.” 597 So.2d at 246 (emphasis added). The sweeping statement by the dissent that assault is a lesser-included offense of manslaughter fails to recognize that the two crimes have differing elements and varying mens rea. Compare § 13A-6-3(a)(l), Ala.Code 1975 (“A person commits the crime of manslaughter if: [h]e recklessly causes the death of another person....”), with § 13A-6-20(a)(l), Ala.Code 1975 (“A person commits the crime of assault in the first degree if: [w]ith intent to cause serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument .... ”). Without deciding a question that is not before us, it is clear that the broad assertion in the dissent that an assault is a lesser-included offense of manslaughter is legally untenable. See generally § 18A-1-9(a)(1), Ala. Code 1975 (“An offense is an included one if: [i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.... ”).

In the end, the Department seeks to have this Court equate assault with manslaughter and injury with death; § 14-9-41(e), Ala.Code 1975, however, does not support such an interpretation.

Finally, the Department argues that “if this Court were to construe ‘an assault’ to not include manslaughter, the result of that decision would be both absurd and contrary to public policy.” (Department’s brief, p. 12.) Specifically, the Department contends that such an interpretation “would impose a harsher outcome on an inmate who maims his victim versus one who takes his victim’s very life.” (Department’s brief, p. 12.) We disagree for two reasons.

First, our holding applies only to those individuals who, like Shelly, are convicted of manslaughter and who receive a sentence of 15 years’ imprisonment or less. The dissent contends that our conclusions lead “ ‘to [the] absurd and unjust result’ of prohibiting Class I good-time credit for inmates convicted of an assault that resulted in serious injury but allowing that same credit for inmates convicted of an assault that resulted in death, i.e., manslaughter.” 109 So.3d at 1155 (Windom, P.J., dissenting). As noted above, however, assault is not generally a lesser-included offense of manslaughter and, further, each crime encompasses varying elements and mens rea. The legislature could have reasonably concluded that individuals whose reckless conduct resulted in death may be treated differently than individuals whose intentional actions resulted in “the permanent loss or use or permanent partial loss or use of any bodily organ or appendage.” § 14-9-41(e), Ala.Code 1975. This conclusion is bolstered by the fact that the legislature’s decision to draw a distinction based on the length of the sentence imposed. The legislature could have reasonably concluded that a prisoner who receives a longer sentence and meets the other requirements to be classified as a Class I prisoner for the purpose of earning incentive good time may be treated differently than a prisoner who has a shorter sentence and meets those same qualifications. Although we might not deem the classifications drawn by the legislature in § 14-9-41(e), Ala.Code 1975, as the most reasonable or efficient, we cannot say they are unreasonable or absurd.

“It is true that when looking at a statute we might sometimes think that the ramifications of the words are inefficient or unusual. However, it is our job to say what the law is,' not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doctrine of separation of powers.”

DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998).

Second, the result about which the Department now complains already exists. Specifically, § 14-9-41 (e) does not prohibit those individuals convicted of criminally negligent homicide, see § 18A-6-4(c), Ala. Code 1975, or homicide by vehicle or vessel, see § 82-5A-192, Ala.Code 1975, from being classified as a Class I prisoner for the purposes of good-time deductions; these individuals, like those convicted of manslaughter, have taken the lives of their victims. Likewise, those individuals convicted of an assault who have been sentenced to 15 years’ imprisonment or less are eligible to be classified as a Class I prisoner for the purpose of earning good-time deductions so long as the assault did not result in the “permanent loss or use or permanent partial loss or use of any bodily organ or appendage.” § 14-9-41 (e), Ala. Code 1975. Therefore, this argument is without merit.

The judgment of the circuit court is reversed, and this matter is remanded to the circuit court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WELCH, KELLUM, and BURKE, JJ., concur. WINDOM, P.J., dissents, with writing.

WINDOM, Presiding Judge,

dissenting.

I disagree with the majority’s conclusion that Shelly is eligible to be classified as a “Class I Prisoner” under § 14-9-41 (e), Ala.Code 1975. Specifically, I believe that Shelly’s conviction for manslaughter, see § 13A-6-3, Ala.Code 1975, bars him from being eligible to receive Class I incentive-time deduction (hereinafter “good-time credit”) under § 14-9-41(e), Ala.Code 1975. Therefore, I respectfully dissent.

Initially, I note that:

“ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’
“Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis added). To discern the legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). If a literal construction would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided. Ex parte Meeks, 682 So.2d 423 (Ala.1996).”

City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006) (emphasis added).

Section 14-9-41(e), Ala.Code 1975, provides, in pertinent part,

“No person may be placed in Class I if he or she has been convicted of an assault where the victims of such assault suffered the permanent loss or use or permanent partial loss or use of any bodily organ or appendage. No person may be placed in Class I if he or she has been convicted of a crime involving the perpetration of sexual abuse upon the person of a child under the age of 17 years.”

(Emphasis added.)

Shelly argues, and the majority agrees, the he is not prohibited from being placed in Class I because he was convicted of manslaughter, see § 13A-6-3, Ala.Code 1975, as opposed to assault, see § 13A-6-22, Ala.Code 1975. For the reasons that follow, I disagree.

In Hasty v. State, 615 So.2d 1323 (Ala.Crim.App.1993), this Court reviewed and rejected an argument substantially similar to Shelly's position. Specifically, this Court held:

“The appellant contends that because he was convicted of rape in the second degree and not the offense of sexual abuse as defined by §§ 13A-6-66 through 67, Code of Alabama 1975, he should not be denied Class I benefits. Clearly, the legislature was using the generic term ‘sexual abuse’ and did not intend to deny Class I benefits only to those offenders convicted of the offenses of sexual abuse in the first and second degree while awarding Class I benefits to those offenders convicted of the more serious offenses of rape and sodomy. Obviously, the legislature’s use of the words ‘perpetration of sexual abuse’ was intended to include any sexual offense committed against a person under 17 years of age. Thus, there is no merit to the appellant’s argument and the denial of his petition is affirmed.”

Id. at 1323.

Like the Court in Hasty, I believe that the legislature used the generic term “assault.” Thus, the legislature intended that all inmates convicted of a crime in which they recklessly or intentionally caused physical injury to another person, see § 13A-6-22(a)(l), Ala.Code 1975, that results in “permanent loss or use or permanent partial loss or use of any bodily organ or appendage,” § 14-9-41(e), Ala.Code 1975, are prohibited from receiving Class I good-time credit regardless of the title of the conviction. Accordingly, an inmate, like Shelly, who has been convicted of manslaughter and therefore he recklessly or intentionally caused an injury that resulted in the victim’s death (the permanent loss of all bodily organs), see § 13A-6-3, Ala.Code 1975, is prohibited under § 14-9-41(e), Ala.Code 1975, from receiving Class I good-time credit.

The conclusion that the legislature intended for § 14-9-41(e), Ala.Code 1975, to prohibit inmates convicted of manslaughter from receiving Class I good-time credit is buttressed by the fact that assault is a lesser-included offense of manslaughter. See Coleman v. State, 344 So.2d 1249, 1250 (Ala.Crim.App.1977); Beason v. State, 5 Ala.App. 103, 105, 59 So. 712, 712 (1912). That is, assault, which requires evidence that the defendant recklessly or intentionally caused an injury to a person, § 13A-6-22, Ala.Code 1975, “is established by proof of the same or fewer than all the facts required to establish the commission of [manslaughter],” § 13A-l-9(a)(l), Ala. Code 1975, a crime in which the defendant recklessly or intentionally caused death. See Chapman v. Railway Fuel Co., 212 Ala. 106, 108, 101 So. 879, 880 (1924) (recognizing that death is an injury); Kemner v. Hemphill, 199 F.Supp.2d 1264, 1270 (N.D.Fla.2002) (“There can be no quarrel with the proposition that death is physical injury.”). Accordingly, “it would be impossible to commit [manslaughter] without committing [assault].” C.P. v. State, 597 So.2d 246, 247 (Ala.Crim.App.1992). See also Owens v. State, 683 So.2d 31, 33 (Ala.Crim.App.1996) (holding that “ ‘ “a lesser offense is necessarily included in the elements of the greater offense and therefore it would be impossible to commit a greater offense without committing the included offense” ’ ” (quoting Vinson v. State, 601 So.2d 196, 198 (Ala.Crim.App.1992), quoting in turn C.P., 597 So.2d at 247)). For that reason, upon a conviction for manslaughter, the lesser-included offense of assault merges with the greater offense of manslaughter and becomes one conviction. Ex parte Beverly, 497 So.2d 519, 524 (Ala.1986) (recognizing that “although a single act may constitute separate offenses, only one prosecution may be sustained, for the reason that the lesser offense is merged into the greater”); Black’s Law Dictionary 1078 (2009) (defining “merger” as “the absorption of a lesser included offense into a more serious offense ...”); Champagne v. State, 199 Md.App. 671, 678, 24 A.3d 149, 153 (Md.App.2011) (recognizing “‘a conviction for a greater offense constitutes a finding of guilt for all lesser included offenses’”; therefore, an appellate court may, upon reversing the conviction for the greater offense, remand a cause to the trial court with instructions for it to enter a guilty verdict for the lesser offense (quoting Smith v. State, 412 Md. 150, 165, 985 A.2d 1204 (2009), citing in turn Brooks v. State, 314 Md. 585, 601, 552 A.2d 872 (1989))). Accordingly, an inmate who has been convicted of manslaughter has committed an assault resulting in the victim’s death.

To interpret the term “assault” literally and exclude manslaughter from § 14-9-41(e), Ala.Code 1975, leads “to [the] absurd and unjust result” of prohibiting Class I good-time credit for inmates convicted of an assault that resulted in serious injury but allowing that same credit for inmates convicted of an assault that resulted in death, i.e., manslaughter. McClain, 957 So.2d at 1075. See C.P., 597 So.2d at 247 (“[I]t would be impossible to commit [manslaughter] without committing [assault].”). Such a “literal construction” of § 14-9-41(e), Ala.Code 1975, produces a result “that is clearly inconsistent with the purpose and policy of the statute,” McClain, 957 So.2d at 1075, “of preventing the early release of serious offenders.” Thornton v. Hunt, 852 F.2d 526, 527 (11th Cir.1988). See also Hasty, 615 So.2d at 1323 (recognizing that the legislature “did not intend to deny Class I benefits only to those offenders convicted of the offenses of sexual abuse in the first and second degree while awarding Class I benefits to those offenders convicted of the more serious offenses of rape and sodomy”). Because I do not believe that the legislature intended to punish inmates convicted of the lesser offense of assault while rewarding the greater offense of manslaughter, I would, consistent with Hasty, hold that the terms contained in § 14-9-41(e), Ala.Code 1975, were used generically; therefore, inmates who have been convicted of manslaughter — an assault resulting in death — are prohibited from receiving Class I good-time credit. Accordingly, I respectfully dissent.

      . The dissent characterizes our reading of the word "assault” in § 14-9-41(e), Ala.Code 1975, as "literal.” 109 So.3d at 1155 ("To interpret the term ‘assault’ literally and exclude manslaughter from the prohibition of Class I good-time credit in § 14-9-41(e), Ala. Code 1975, leads ‘to [a] absurd and unjust result’ ....”) (Windom, P.J., dissenting). This statement appears to concede that our interpretation of the word "assault” is consistent with the plain language of the statute. See DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998) ("Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” (quotations omitted)).

      . Section 13A-6-22(a)(l)-(2), Ala.Code 1975, provides:
      "A person commits the crime of assault in the third degree if:
      "(1) With intent to cause physical injury to another person, he causes physical injury to any person; or
      "(2) He recklessly causes physical injury to another person[J"

      . Section 13A-6-3(a), Ala.Code 1975, provides:
      "(a) A person commits the crime of manslaughter if:
      "(1) He recklessly causes the death of another person, or
      "(2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself."


author: PER CURIAM.

text:
    Alain CUPAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-702.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.
    Alain Cupas, Monticello, pro se.
    No appearance required for appellee.
   PER CURIAM.

Alain Cupas appeals the denial of a rule 3.800(a) motion, which we have treated as a rule 3.850 motion. Following a trial, Cupas was convicted of three counts of lewd or lascivious molestation in violation of section 800.04(5)(a), Florida Statutes (2007). Count I alleged he touched the victim’s breast or the clothing covering it; count II alleged he touched her genital area or the clothing covering it; and count III alleged that he forced or enticed the victim to touch his genitals or the clothing covering them. All of these touchings occurred in close temporal proximity in the same place. For counts I and II, he received consecutive 15-year prison terms followed by 15 years on probation for count III. Cupas alleges the three convictions violate the prohibition against double jeopardy.

We agree that based on our recent decision in Webb v. State, 104 So.3d 1153 (Fla. 4th DCA 2012), Cupas could not be convicted and sentenced twice for lewd and lascivious touching of the victim. However, consistent with the decision in State v. Meshell, 2 So.3d 132 (Fla.2009), count III, which involved appellant forcing the victim to touch his penis, is a distinct act requiring a different element of proof. See Fla. Std. Jury Instr. (Crim.) 11.10(c). We agree with Sanders v. State, 101 So.3d 373 (Fla. 1st DCA 2012), that a person can violate the lewd or lascivious molestation “statute in two separate and distinct ways: 1) by touching the victim in the proscribed manner, or 2) by forcing or enticing the victim to touch the person in the proscribed manner.” 101 So.3d at 375. Although we certified conflict with Sanders in Webb, Webb did not involve the two distinct statutory acts, in contrast to the two acts in Sanders as well as the two acts in this case.

Accordingly, the circuit court’s order is reversed. On remand, the trial court is directed to vacate the conviction for count II and resentence Cupas.

WARNER, GROSS and GERBER, JJ., concur.

      . The motion was timely filed within two years after his convictions became final, and it is under oath.


author: DAMOORGIAN, J.

text:
    K.A.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4063.
    District Court of Appeal of Florida, Fourth District.
    March 20, 2013.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

K.A.A. appeals from an adjudication of juvenile delinquency on the charge of unlawfully possessing a gun on school grounds. K.A.A. argues that the trial court erred in not allowing him to cross-examine the State’s juvenile witness about criminal charges pending against the witness. We agree and reverse.

In Tuell v. State, 905 So.2d 929 (Fla. 4th DCA 2005), we held that a defendant has the right to examine a juvenile prosecution witness about his/her pending criminal charges to show bias, motive or self-interest. Id. at 930 (citing Torres-Arboledo v. State, 524 So.2d 403, 409 (Fla.1988)). “The right to cross-examine witnesses ... outweighs the state’s interest in preserving the confidentiality of juvenile delinquency records.” Id. (citing Davis v. Alaska, 415 U.S. 308, 319, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). Accordingly, the trial court erred when it prohibited K.A.A. from cross-examining the State’s juvenile witness about the witness’s pending juvenile charges.

We reject the State’s harmless error argument on the grounds that defense counsel was allowed to cross-examine the witness on “every other point”. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). This was the main witness for the State and examination into and evidence of bias, motive or self-interest would have been relevant and, if proven, would have impacted the witness’ credibility. The State cannot prove beyond a reasonable doubt that the error did not contribute to K.A.A.’s delinquency finding. Thus, the error is not harmless.

Reversed and Remanded.

GROSS, J., and STONE, BARRY J., Senior Judge, concur.


author: FERNANDEZ, J.

text:
    Diosmary OZUNA, Appellant, v. Jabaal SHEARD, Appellee.
    No. 3D12-1595.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.

      Sandy T. Fox, Aventura, for appellant.
    Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Eskaylo & Dunbrack, P.A., Adam B. Swickle and Joseph A. Costello, Fort Lauderdale, for appellee.
    Before SHEPHERD, LAGOA and FERNANDEZ, JJ.
   FERNANDEZ, J.

Diosmary Ozuna appeals the trial court’s order that granted appellee Jabaal Sheard’s motion to transfer venue to Bro-ward County and the denial of her motion for rehearing in which she argued that venue was proper in Miami-Dade County where she initially obtained a Final Administrative Support Order and filed her Verified Petition for Establishment of Parenting Plan and for Modification of Child Support. We agree and reverse.

An Administrative Law Judge in Miami-Dade County, where the Department of Revenue filed its administrative action to establish child support, issued its Final Administrative Support Order in which the court adjudged Sheard to be the biological father and non-custodial parent of the parties’ minor child; that paternity was legally established by an affidavit or voluntary acknowledgement; that the mother was the custodial parent; and that the minor child primarily resided with the mother. The Order also required the father to pay $243 per month in child support, to pay twenty dollars per month towards child support arrearages of $2230, and to maintain health insurance for the minor child.

At the time of the entry of the Order, the mother resided in Miami-Dade County. The parties currently reside in Bro-ward County.

The mother filed her Verified Petition for Establishment of Parenting Plan and for Modification of Child Support in Miami-Dade County. She sought an upward modification of child support. She also moved to establish parental responsibility, and a time-sharing and parenting plan.

The father moved to transfer the case to Broward County, pursuant to section 742.021, Florida Statutes (2012), which provides that proceedings for the determination of parentage “must be in the circuit court of the county where the plaintiff resides or the county where the defendant resides.” The father acknowledged in his motion that a Final Administrative Support Order issued and that it provided that paternity had already been established by affidavit or voluntary acknowledgment.

The father further argued in his motion to transfer that section 409.2563, Florida Statutes (2012), does not confer jurisdiction upon the Division of Administrative Hearings to hear or determine issues of time sharing, such as the issue the mother raised in her petition. Section 409.2563 merely provides that a parent may at any time file an action in a circuit that has jurisdiction and proper venue. It also provides that an order entered by the circuit court would supersede any order entered by the Division of Administrative Hearings to hear or determine issues of time sharing.

In its order that granted the father’s motion to transfer, the trial court did not set forth any reasons or grounds upon which it relied to transfer the case for improper venue. The court’s order simply grants the father’s motion. Neither did the court state any reasons nor grounds to support its decision during the hearing on the father’s motion.

The father’s contentions, however, are entirely misplaced insofar as they are applied to preclude Miami-Dade County as a proper forum. The abuse of discretion standard governs the review of an order which transfers venue. See Dive Bimini, Inc. v. Roberts, 745 So.2d 482, 483 (Fla. 1st DCA 1999). The venue a party chooses is presumptively correct, and the burden lies on the party who seeks a change of venue to demonstrate the impropriety of the venue selection. See Foti v. Camejo, 812 So.2d 507, 508 (Fla. 3d DCA 2002).

Miami-Dade County is a proper venue for the mother’s petition where, as here, Miami-Dade County had continuing jurisdiction to modify the amount of child support. Section 61.14(a), Florida Statutes (2012), specifically permits a child support modification action to be filed in the county within which the court entered a child support order. Section 61.14(l)(a), provides, in pertinent part:

When the parties enter into an agreement, for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party changes or the child who is a beneficiary or an agreement or court order as described herein reaches majority after the execution of the agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order,

(emphasis added). Miami-Dade County is the forum within which the court entered the original child support order. See § 409.2563(9)(d), Fla. Stat. (2012) (stating administrative support order has same force and effect as a court order). Thus, Miami-Dade County is a proper venue for the mother’s child support modification action.

Miami-Dade County is also a proper venue pursuant to section 409.2563(10)(c), Florida Statutes (2012). That section provides, in pertinent part, that a parent may at any time file an action in a circuit court that has jurisdiction of the parties and proper venue, and that a circuit court order supersedes any administrative support order. Because Miami-Dade County is the venue within which the administrative support order issued, jurisdiction and venue properly lie in a circuit court of Miami-Dade County and any subsequent order would supersede the previously entered administrative support order. Furthermore, if a petition for modification is filed in an appropriate venue, it is improper to transfer it to another venue solely because venue is appropriate there as well. Washington v. Washington, 613 So.2d 594, 595 (Fla. 5th DCA 1993).

The father’s argument that venue must be based on section 742.021, Florida Statutes (2012), is misplaced. He is correct that this section provides that paternity proceedings “must be in the circuit court of the county where the plaintiff resides or the county where the defendant resides.” However, paternity is not an issue in this case because the father previously acknowledged paternity and the administrative support order established it.

We thus conclude that the mother correctly filed her petition in Miami-Dade County, and the trial court abused its discretion when it granted the father’s motion to transfer venue to Broward County. Therefore, we reverse and remand with instructions to the trial court to proceed with the mother’s Verified Petition for Establishment of Parenting Plan and for Modification of Child Support.

Reversed and remanded with instructions.


text:
    Charles L. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-120.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.

      Charles L. Johnson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Charles L. Johnson (“Johnson”) is granted a belated appeal from the October 17, 2012 order directing the Clerk to reject any further pro se pleadings from Johnson. For the reason set forth below, we reverse.

As grounds for entry of the October 17, 2012 order, the trial court referenced a July 5, 2011 order previously entered by another trial court judge prohibiting Johnson “from any further pro se filings without first obtaining a signature by a licensed Florida attorney.” This Court, however, on November 23, 2011, reversed the previous trial court’s July 5, 2011 order barring Johnson from filing further pro se postconviction motions as there was no indication in the record that the trial court had first entered a show cause order. See Johnson v. State, 75 So.3d 368 (Fla. 3d DCA 2011), review dismissed, 99 So.3d 943 (Fla.2012).

Accordingly, we reverse and remand the trial court’s October 17, 2012 order directing the Clerk to reject any further pro se pleadings from Johnson. This opinion, however, does not preclude the trial court from issuing a show cause order as to why Johnson should not be prohibited from submitting any further pro se filings.

Reversed and remanded.


text:
    Shakia Nicole SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2449.
    District Court of Appeal of Florida, First District.
    March 22, 2013.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant; Sha-kia Nicole Smith, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

At issue in this appeal is whether, after Appellant violated community control by committing new law violations, the trial court illegally sentenced her to a prison term of 10 years for attempted armed robbery with a firearm, when Appellant originally was designated a youthful offender.

“Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.” Lee v. State, 67 So.3d 1199, 1202 (Fla. 2d DCA 2011) (citing State v. Arnette, 604 So.2d 482, 484 (Fla.1992)). “However ... the court is not limited to imposing the usual youthful offender sentence of six years or less in prison if the revocation is based on a substantive violation of probation.” Id. (emphasis in original). In such cases, the court can impose up to the statutory maximum for the underlying offenses. Id. (citing § 958.14, Fla. Stat. (2010)). Further, separate charges and convictions are not required to support a substantive violation of probation based upon the commission of a new law violation. See Christian v. State, 84 So.3d 437, 445 (Fla. 5th DCA 2012).

Appellant admitted to violating her community control by committing three new law violations. The trial court correctly determined that although Appellant maintained the designation of “youthful offender” following the violation, she nonetheless was subject to being sentenced up to the statutory maximum — 15 years — for the armed robbery. See §§ 812.13(2)(a); 777.04(1); 775.082(3)(c), Fla. Stat. (2009). Appellant’s 10-year sentence is legal, and therefore we AFFIRM.

BENTON, C.J., ROWE, and MARSTILLER, JJ., concur.


author: CRENSHAW, Judge.

text:
    Agustin CANALES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5908.
    District Court of Appeal of Florida, Second District.
    March 22, 2013.
    Howard L. Dimmig, II, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofksy, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Agustín Canales appeals his judgment and sentence for attempted second-degree murder with a firearm, among other charges. Canales argues on appeal that the jury instruction for attempted manslaughter by act as a lesser-included offense for attempted second-degree murder was fundamentally erroneous. We affirm Canales’s judgment and sentences and write to explain how this case is distinguishable from others in which the jury instructions for attempted manslaughter by act were held to be fundamentally erroneous.

Recent caselaw has held that the standard jury instruction for attempted manslaughter by act is fundamentally erroneous for improperly adding an intent-to-kill element to the crime of attempted manslaughter by act. For example, in Houston v. State, 87 So.3d 1 (Fla. 2d DCA 2011), this court held that the attempted manslaughter by act jury instruction is 'fundamentally erroneous, relying in part on State v. Montgomery, 39 So.3d 252 (Fla.2010). See also Williams v. State, — So.3d - (Fla.2013) (holding the standard jury instruction for voluntary manslaughter by act to be fundamentally erroneous). Contrary to Canales’s assertion, the present case is distinguishable from Houston.

In Houston, the jury instruction that was used was Florida Standard Jury Instruction (Criminal) 6.6, which reads, in pertinent part, as follows:

To prove the crime of attempted voluntary manslaughter, the state must prove the following element[s] beyond a reasonable doubt: John Miguel Houston committed an act which was intended to cause the death of Frederick Powell and it would have resulted in the death of Frederick Powell except that someone prevented John Miguel Houston from killing Frederick Powell or he failed to do so.
... In order to convict of attempted voluntary manslaughter, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

Houston, 87 So.3d at 2.

However, the jury instruction in this case was modified to delete the intent element. It reads:

To prove the crime of attempted voluntary manslaughter, the State must prove the following element beyond a reasonable doubt: The defendant committed an act which would have resulted in the death of Yoelda Rogel Estrada, except that someone prevented the defendant from killing Yoelda Rogel Estrada or he failed to do so.
In order to convict of attempted voluntary manslaughter, it is not necessary for the State to prove that the defendant had an intent to cause death.

(Emphasis added.)

Whereas the instruction described in Houston included the term “which was intended to cause ... death” and stated that it is not necessary for the State to prove “premeditated intent to cause death,” the instruction in this case was amended to only read “which would have resulted in ... death” and that the State need not prove an “intent to cause death.” We hold that these modifications cured the deficiency in Houston; accordingly, we affirm the judgment and sentences.

Affirmed.

SILBERMAN, C.J., and ALTENBERND, J., Concur.

      . We note that Standard Jury Instruction (Criminal) 6.6 is under review by the Supreme Court Standard Jury Instructions Committee (Criminal).


author: SILBERMAN, Chief Judge.

text:
    Gregorio RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1040.
    District Court of Appeal of Florida, Second District.
    March 22, 2013.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Gregorio Ruiz seeks review of his judgment and sentence for attempted sexual battery and sexual activity with a child by a person in familial or custodial authority which was entered pursuant to a negotiated plea. Although Ruiz filed a timely pro se motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 8.170(0, the motion is a nullity because it was filed while Ruiz was still represented by counsel and was devoid of allegations giving rise to an adversarial relationship with counsel. See Sheppard v. State, 17 So.3d 275, 286 (Fla.2009). Because Ruiz has not properly preserved any challenges to his plea, we affirm.

Affirmed.

KELLY and SLEET, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    D.D.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2518.
    District Court of Appeal of Florida, Second District.
    March 22, 2013.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elsa Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

D.D.B. appeals a disposition order withholding adjudication and placing her on juvenile probation for the delinquent act of “false 911 call.” We reverse the disposition order and remand for a new adjudicatory hearing because the juvenile court admitted an audio recording, allegedly of the 911 call, that was not properly authenticated.

The State filed a petition for delinquency in which it alleged that on December 19, 2011, D.D.B. “did access the telephone number ‘911’ for the purpose of making a false alarm or complaint or reporting false information which could result in the emergency response of a public safety agency.” Section 365.172(13), Florida Statutes (2011), makes misuse of the 911 and E911 system a criminal violation in Florida, and it describes acts that constitute first-degree misdemeanors and acts that constitute third-degree felonies. If sufficiently established, the acts alleged in this petition would constitute a first-degree misdemeanor. See § 365.172(13), Fla. Stat. (2011).

The matter proceeded to an adjudicatory hearing at which, over objection, the State was allowed to introduce an audio recording of two calls purportedly made by D.D.B. to the 911 system on December 19, 2011. The second call was allegedly improper. Only one witness testified at this hearing. That witness was one of two police officers who had been dispatched to D.D.B.’s home, apparently as a result of a 911 call. Although this officer was still within eyeshot when D.D.B. allegedly made the second 911 call and she saw D.D.B. on the phone, she did not see the child dial 911 and did not actually hear the call in progress. The officer could merely identify D.D.B.’s voice on the audio recording.

We conclude that the court allowed the State to introduce the audio recording without sufficient authentication. See § 90.901, Fla. Stat. (2011) (“Authentication ... of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”); Knight v. State, 20 So.3d 451, 452 (Fla. 5th DCA 2009). The identification of D.D.B.’s voice on the recording is helpful to the State’s case, but authentication would also require other predicate evidence, including that the recording was of a telephone call received and handled by the 911 system on the relevant date.

We cannot treat this error as harmless in this case. On the record provided to this court, the audio recording was critical to establish that D.D.B. actually called 911, which was an essential component of the proof required to establish that she committed the delinquent act alleged in the petition for delinquency. Accordingly, we reverse the disposition order and remand for a new adjudicatory hearing.

Reversed and remanded.

KHOUZAM and SLEET, JJ., Concur.