author: WISE, Justice.

text:
    Ex parte Derek Jermaine BAKER. (In re Derek Jermaine Baker v. State of Alabama).
    1120385.
    Supreme Court of Alabama.
    Sept. 27, 2013.
    James R. Mason, Jr., Decatur, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and William D. Dill, asst. atty. gen., for respondent.
   WISE, Justice.

This Court granted Derek Jermaine Baker’s petition for a writ of certiorari to review the Court of Criminal Appeals’ unpublished memorandum affirming Baker’s conviction and sentence for trafficking in marijuana. See Baker v. State (No. CR-11-0267, December 17, 2012), — So.3d -(Ala.Crim.App.2012) (table). For the reasons set forth below, we reverse and remand.

Facts and Procedural History

On February 9, 2010, Sgt. Mike Cowart, the supervisor of the Decatur Police Department’s Anti-Crime Unit, was conducting surveillance on a house on Blaine Drive Southwest in Decatur after receiving a citizen’s complaint that there was drug activity at that house. While Sgt. Cowart was conducting surveillance, a blue Ford Expedition sport-utility vehicle arrived at the house. A black male got out of the vehicle, retrieved a black object from the vehicle, and then entered the house with the black object. A few minutes later, Sgt. Cowart saw the man come out of the house carrying what appeared to be the same black object. The man then put the black object back inside the vehicle and drove away. As the subject was driving away, Cowart was able to see the driver of the vehicle and to obtain a tag number for the vehicle.

Sgt. Cowart radioed Officers Josh Sloan and Jamie Hammons, who were members of the Anti-Crime Unit. Officers Sloan and Hammons were partners and were both in the same patrol vehicle. Sgt. Cowart told Officers Sloan and Hammons about the activity he had witnessed. He also asked them to follow the vehicle and to stop it if the driver committed a traffic infraction. Subsequently, Sgt. Cowart and Officers Sloan and Hammons followed the vehicle in separate vehicles. Sgt. Cowart testified that, as the driver was turning off Tammy Street and onto Sandlin Road, he saw something come out of the passenger’s side window of the vehicle. Officer Sloan also testified that, as the vehicle was turning, he saw what he believed to be a black bag being thrown from the passenger’s side of the vehicle. Sgt. Cowart stopped and recovered a black garbage bag from the road. Sgt. Cowart testified that the black bag had burst open; that there was a clear plastic bag of marijuana in the roadway; and that there were four other plastic bags of marijuana inside the black bag.

Officers Sloan and Hammons subsequently stopped the vehicle. Baker was the driver of the vehicle and was the only person in the vehicle. Sgt. Cowart, who arrived at the scene after Officers Sloan and Hammons, and Officers Hammons and Sloan all testified that they could smell marijuana in the vehicle. The State also presented evidence indicating that law-enforcement officers subsequently recovered a small amount of what appeared to be marijuana from Baker’s person and a small amount of what appeared to be loose marijuana from the center console of the vehicle. Forensic testing indicated that the material in the plastic bags that were inside the black garbage bag was marijuana and weighed almost five pounds.

Baker denied that he had been to the house on Blaine Drive Southwest or that he had been anywhere in that area on the day in question; denied that he had ever had any marijuana in the vehicle; and denied that he had thrown any marijuana out of the vehicle.

On February 25 and 28, 2011, Baker filed motions for discovery in which he requested that the district attorney make any controlled substance or substances material to the preparation of the defense available to him for analysis by an expert. The trial court denied Baker’s motions.

Baker was convicted of trafficking in cannabis, a violation of § 13A-12-231(l)a., Ala.Code 1975, and the trial court sentenced him to 10 years in prison. The Court of Criminal Appeals affirmed Baker’s conviction and sentence in an unpublished memorandum. Baker petitioned this Court for a writ of certiorari, and this Court granted certiorari review as to the question whether the Court of Criminal Appeals’ holding that the trial court did not exceed its discretion when it denied Baker’s motions seeking independent testing of the substance purported to be marijuana conflicts with this Court’s previous decision in Ex parte Harwell, 689 So.2d 1335 (Ala.1993).

Standard of Review

“Discovery matters are within the sound discretion of the trial court, and this Court will not reverse a trial court’s rulings on discovery issues unless there has been a clear abuse of discretion^] Home Ins. Co. v. Rice, 585 So.2d 859 (Ala.1991). Further, this Court has held that, to be entitled to a reversal of a judgment for an abuse of discretion, the party claiming abuse must establish that it was prejudiced by the alleged abuse. See Valley Properties, Inc. v. Strahan, 565 So.2d 571, 583 (Ala.1990).”

Ex parte Harwell, 639 So.2d at 1336.

Discussion

Baker argues that the Court of Criminal Appeals erroneously held that the trial court did not exceed its discretion when it denied his motions seeking independent testing and evaluation of the substance purported to be marijuana. Specifically, Baker contends that the Court of Criminal Appeals’ decision conflicts -with this Court’s prior holding in Ex parte Harwell, supra. In its unpublished memorandum, the Court of Criminal Appeals concluded that Baker was required to demonstrate that he was prejudiced by the trial court’s denial of his motions for discovery but that he failed to do so; that, after reviewing the record, it could not say that Baker was prejudiced by the denial of his discovery motions; and that Baker did not establish that independent testing was necessary for him to present an effective defense.

Rule 16.1(c), Ala. R.Crim. P., provides, in pertinent part:

“Upon written request of the defendant, the prosecutor shall, within fourteen (14) days after the request has been filed in court as required by Rule 16.4(c), or within such shorter or longer period as may be ordered by the court, on motion, for good cause shown, permit the defendant to analyze, inspect, and copy or photograph books, papers, documents, photographs, tangible objects, controlled substances, buildings or places, or portions of any of these things, which are within the possession, custody, or control of the state/municipality and:
“(1) Which are material to the preparation of defendant’s defense....
“(2) Which are intended for use by the state/municipality as evidence at the trial; or
“(3) Which were obtained from or belong to the defendant.
“Upon motion of the state/municipality, the court shall impose such conditions'or qualifications as may be necessary to protect the chain of custody of evidence, or the prosecutor’s, law enforcement officer’s, or investigator’s work product, or to prevent loss or destruction of such documents or objects.”

(Emphasis added.)

In Ex parte Harwell, Harwell was indicted for reckless murder and first-degree assault based on a motor-vehicle accident. Both indictments alleged that, at the time Harwell caused the death of Judy B. Goodwin and caused injuries to Kenneth J. Goodwin, he was driving a motor vehicle while he was under the influence of alcohol. On October 10, 1991, Harwell sought production of a sample of his blood that was drawn after the accident for the purpose of having it independently tested. On November 15, 1991, the State had not yet complied with Harwell’s request for production, so he filed a second motion to obtain a sample of his blood. He also sought the State’s records regarding the analysis of his blood. The trial court denied the part of Harwell’s motion that related to the production of his blood sample. After the Court of Criminal Appeals affirmed Harwell’s convictions in an unpublished memorandum, this Court granted Harwell’s petition for certiorari review. In addressing Harwell’s argument, this Court stated:

“Harwell argues that the trial court abused its discretion by denying his motions to obtain a sample of his blood so that he could have it independently analyzed. He also argues that the trial court’s denial of his request prejudiced his rights to due process. He notes that this Court has held that a defendant has a right to obtain independent testing of controlled substances that were obtained from the defendant and that are in the custody and control of the State. Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). See also Sawyer v. State, 598 So.2d 1035 (Ala.Crim.App.), cert, denied, 506 U.S. 943, 113 S.Ct. 386. 121 L.Ed.2d 295 (1992); Gayle v. State, 591 So.2d 153 (Ala.Crim.App.1991); Jackson v. State, 560 So.2d 1100 (Ala.Crim.App.1989); Moton v. State, 524 So.2d 381 (Ala.Crim. App.1988); Ware v. State, 472 So.2d 447 (Ala.Crim.App.1985); Blair v. State, 453 So.2d 1092 (Ala.Crim.App.1984).
“In Warren, holding that due process requires that a defendant be allowed to obtain a sample of the controlled substances obtained from him, this Court stated:
“ ‘Impartiality and fairness require that the defendant be aided by all available processes of the court, when invoked, to enable him to test and question the authenticity of the State’s evidence against him. So where the contents of an allegedly prohibited substance [are] in issue and [are] to be offered against him, is it asking too much for the defendant, that he be allowed as much opportunity to determine the nature of the substance and its characteristics as has been afforded the State? We think not, and it is no answer to the question that the State’s expert witness is a skillful scientist and a creditable witness. To enable one to present his defense fully and effectively, the right of cross-examination, thorough and sifting, must'remain inviolate, and to enable the defendant to invoke this right, on motion, he should be furnished a sample of the allegedly prohibited substance that will be offered against him in the trial so that he can have its qualities researched by scientists of his choosing. We think that to deny him this right is to deny him due process, especially where his motion to produce was made well in advance of the trial so that it could have been ruled on by the comí without causing any undue delay in the trial.’
292 Ala. at 75, 288 So.2d at 830. (Emphasis added.) Harwell argues that where, as here, his blood alcohol content is a critical element in the prosecution’s case against him, he has a right, similar to that of the defendant in Warren, to production of a sample of his blood for independent testing by a scientist of his choice.
“The State argues that the blood alcohol content of his blood sample is not a material element of the crime of reckless murder. However, it is well established that one’s blood alcohol content is a material element of the prosecution’s case for reckless murder based on a fatal motor vehicle wreck involving a drunk driver. See Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958) (noting that a defendant’s intoxication at the time of a fatal car wreck has been considered a significant, if not controlling, factor in a prosecution for reckless murder); Hyde v. State, 230 Ala. 243, 160 So. 237 (1935). Cf. Gwin v. State, 425 So.2d 500 (Ala. Crim.App.1982) (holding that the trial court did not err in refusing to require the State to produce the weapons and bullets for independent expert examination because that evidence was not critical to the defendant’s defense of self-defense), writ quashed, Ex parte Gwin, 425 So.2d 510 (Ala.1983). Blood alcohol content is also material to Harwell’s assault conviction based on Ala.Code 1975, § 13A-6-20(a)(5).
“The record reveals that when Har-well requested production of a blood sample the sample was in the custody and control of the State and was available for further testing. The technician who conducted the State’s analysis of the blood sample testified at trial that a sufficient amount of the blood sample was left to conduct an accurate blood alcohol test and that it had not yet spoiled. It follows that the State’s refusal to provide Harwell with the sample deprived him of any means of challenging the results of the State’s test through his own independent test. We believe the defendant’s analogy to testing controlled substances is well taken under these facts. Where a defendant makes a timely request, where the blood alcohol content of that sample is a material element of the charge, and where the defendant would be prejudiced by the denial of his motion for production of the blood sample for independent testing, due process requires that the State produce a sample of his blood for independent testing of its blood alcohol content.
“In Gibson v. City of Troy, [481 So.2d 463 (Ala.Crim.App.1985),] the court noted that ‘[t]he purpose of allowing an accused to obtain an additional test is to provide him a means of “cross checking” the state’s test.’ 481 So.2d at 467. Har-well was not allowed to ‘cross check’ the state’s test and was, thus, denied due process. Accordingly, the judgment of the Court of Criminal Appeals is due to be reversed as to both convictions and the case remanded for proceedings consistent with this opinion.”

639 So.2d at 1336-38.

Further, in Warren v. State, 292 Ala. 71, 75, 288 So.2d 826, 829-31 (1973), this Court stated:

“When a defendant pleads not guilty in a criminal ease, the State carries a heavy burden of proof to establish his guilt by the evidence before the jury, and the State’s burden should in no manner diminish the defendant’s right to test and question, by all legitimate methods, the weight and credibility of the State’s evidence against him at all stages of the trial. Impartiality and fairness require that the defendant be aided by all available processes of the court, when invoked, to enable him to test and question the authenticity of the State’s evidence against him. So where the contents of an allegedly prohibited substance [are] in issue and [are] to be offered against him, is it asking too much for the defendant, that he be allowed as much opportunity to determine the nature of the substance and its characteristics as has been afforded the State? We think not, and it is no answer to the question that the State’s expert witness is a skillful scientist and a creditable witness. To enable one to present his defense fully and effectively, the right of cross-examination, thorough and sifting, must remain inviolate, and to enable the defendant to invoke this right, on motion, he should be furnished a sample of the allegedly prohibited substance that will be offered against him in the trial so that he can have its qualities researched by scientists of his choosing. We think that to deny him this right is to deny him due process, especially where his motion to produce was made well in advance of the trial so that it could have been ruled on by the court without causing any undue delay in the trial.
“The truth vel non of the qualities of the substance is put in issue by the defendant’s plea of not guilty. All evidence as to that truth is the very essence of determining the guilt or innocence of the accused and should be sought. We think that the court erred in denying the defendant’s motions.
“The trial court may consider prescribing reasonable safeguards to protect the sample against any violation of its integrity during the course of its examination, if such is deemed necessary, by having the analysis conducted in the presence of the court’s representative or in any other reasonable manner.”

The State relies upon this Court’s previous decision in Dubose v. State, 662 So.2d 1189 (Ala.1995), and the Court of Criminal Appeals’ decision in Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), to support its contention that Baker was required to show that there was a particularized need for expert testing of the seized substance. However, in Dubose, this Court addressed the trial court’s denial of Dubose’s requests for funds to hire an expert witness. Additionally, Dill dealt with a situation where Dill argued that the trial court erred in not appointing a psychiatric expert. Neither of those cases addressed the issue whether the State should have produced a controlled substance for independent testing in a case where the defendant is charged with a controlled-substance offense.

However, in McLeod, v. State, 581 So.2d 1144 (Ala.Crim.App.1990), the Court of Criminal Appeals addressed McLeod’s denial of a request for funds to obtain independent testing of a controlled substance as follows:

“McLeod asserts that he was denied due process of law by the trial court’s denial of his request for funds to obtain independent testing of the cocaine.
“A ‘Motion for Independent Testing was filed by defense counsel Motley on March 27, 1989. This motion, which requested both a sample for testing and funds for such testing, was originally denied on April 14, 1989, as untimely. On April 17,1989, the trial court entered an order directing the State to furnish McLeod with a sample for independent testing to be conducted at McLeod’s expense. McLeod then filed a pro se request for funds for the testing. This request was denied on April 21, 1989.
“A defendant charged with a drug-related offense is entitled, under Rule 18.1(c), A.R. Cr. P. Temp., and upon proper motion, to a sample of the alleged controlled substance in order that he may obtain independent testing of the substance.[] See Moton v. State, 524 So.2d 381 (Ala.Cr.App.1988); Ware v. State, 472 So.2d 447 (Ala.Cr.App. 1985). However, neither Moton nor Ware stands for the proposition that an indigent defendant is automatically entitled to funds for such testing. The defendant must demonstrate that there is a need for such testing in order to obtain funds therefor. See Tarver v. State, 500 So.2d 1232, 1245 (Ala.Cr. App.), affirmed, 500 So.2d 1256 (Ala. 1986), cert, denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987) (where defendant made no ‘showing of the need for a forensic expert’ to examine fingerprints on a beer can, he ‘was not unconstitutionally denied the assistance of experts’); Hold v. State, 485 So.2d 801, 803 (Ala.Cr.App.1986) (where defendant failed to make a showing of need for private investigator, trial court’s denial of defendant’s request for funds to hire same did not violate defendant’s due process rights). Cf. Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) (where defendant’s request for appointment of a criminal investigator, fingerprint expert, and ballistics expert ‘offered little more than undeveloped assertions that the requested assistance would be beneficial,’ the Supreme Court found ‘no deprivation of due process’ in the trial court’s denial of the request).”

581 So.2d at 1149-50 (emphasis other than on “funds” added).

In his discovery motions, Baker requested that the seized substance in this case be made available for expert analysis. Additionally, Baker’s plea of not guilty put “[t]he truth vel non of the qualities of the substance” in issue. Warren, 292 Ala. at 77, 288 So.2d at 831. Therefore, pursuant to Rule 16.1(c), Ala. R.Crim. P., this Court’s holdings in Ex parte Harwell and Ex parte Warren, and the Alabama Court of Criminal Appeals’ holdings in McLeod; Gayle v. State, 591 So.2d 153, 155 (Ala. Crim.App.1991); Jackson v. State, 560 So.2d 1100 (Ala.Crim.App.1989); Moton v. State, 524 So.2d 381 (Ala.Crim.App.1988); and Ware v. State, 472 So.2d 447 (Ala. Crim.App.1985), Baker was entitled to production of the seized substance in this case for the purpose of having it independently tested. Further, based on these cases, the denial of the motion for production resulted in prejudice to Baker and violated his right to due process. Additionally, the record does not indicate that Baker ever requested funds for an expert to conduct the independent testing. Therefore, Baker was not required to demonstrate that there was a particularized need for such testing. Cf. McLeod, supra. Accordingly, the trial court exceeded its discretion when it denied Baker’s motions seeking independent testing and evaluation of the substance purported to be marijuana.

For these reasons, the Court of Criminal Appeals erred when it affirmed Baker’s conviction for trafficking in marijuana. Accordingly, we reverse the Court of Criminal Appeals’ judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, MAIN, and BRYAN, JJ., concur.

      . The material that was obtained from Baker and from the center console of the vehicle was not submitted for forensic testing.

      . "This Court now phrases the question in terms of whether a trial court 'exceeded' its discretion, rather than whether the trial court 'abused' its discretion. The standard of review remains the same. See Classroomdi-rect.com, LLC v. Draphix, LLC, 992 So.2d 692, 701 n. 1 (Ala.2008); Kyser v. Harrison, 908 So.2d 914 (Ala.2005); and Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 899 (Ala.2005).” CIT Commc’n Fin. Corp. v. McFadden, Lyon & Rouse, L.L.C., 37 So.3d 114, 121 n. 5 (Ala.2009).

      . Rule 18.1(c), Ala. R.Crim. P. Temp., is now Rule 16.1(c), Ala. R.Crim. P.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Derek Jermaine BAKER v. STATE of Alabama.
    CR-11-0267.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.
    James Ralph Mason, Jr., Decatur, for appellant.
    Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

JOINER, Judge.

Derek Jermaine Baker appealed his conviction for trafficking in cannabis, see § 13A-12-231(l)(a), Ala.Code 1975, and his sentence of 10 years’ imprisonment. This Court affirmed Baker’s conviction and sentence in an unpublished memorandum. Baker v. State (No. CR-11-0267, Dec. 7, 2012),-So.3d-(Ala.Crim.App.2012) (table). Baker then petitioned the Alabama Supreme Court for certiorari review. In an opinion issued September 27, 2013, the Alabama Supreme Court reversed our judgment affirming Baker’s conviction and sentence and remanded the case for proceedings consistent with its the opinion. Ex parte Baker, 144 So.3d 1285 (Ala.2013). Regarding the issue raised on certiorari review — whether the trial court exceeded its discretion when it denied Baker’s two separate motions seeking independent testing and evaluation of the substance purported to be cannabis — the Alabama Supreme Court in Ex parte Baker stated that “Baker was entitled to production of the seized substance in this case for the purpose of having it independently tested” and that “the denial of the motion for production resulted in prejudice to Baker and violated his right to due process.” 144 So.3d at 1291.

In accordance with the opinion of the Alabama Supreme Court, we reverse the judgment of the circuit court and remand this case to the circuit court for it to conduct proceedings consistent with the Alabama Supreme Court’s decision in Ex paHe Baker.

REVERSED AND REMANDED.

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


author: WISE, Justice. MURDOCK, Justice

text:
    Douglas H. COONER v. ALABAMA STATE BAR.
    1111340.
    Supreme Court of Alabama.
    March 15, 2013.
    Opinion on Return to Remand May 24, 2013.

      Craig A. Alexander of Rumberger, Kirk & Caldwell, P.C., Birmingham, for appellant.
    J. Anthony McLain, gen. counsel, and Robert E. Lusk, Jr., asst. gen. counsel, Alabama State Bar, Montgomery, for ap-pellee.
   WISE, Justice.

On February 17, 2010, a panel of the Disciplinary Board (“the Board”) of the Alabama State Bar (“the Bar”) ordered that Douglas H. Cooner be disbarred from the practice of law. Cooner appealed the Board’s decision to this Court. On October 8, 2010, this Court held that the Board’s order disbarring Cooner did not satisfy the requirements of Rule 4.2, Ala. R. Disc. P., because it did not include findings of fact as to each allegation of misconduct adequate for this Court to conduct a meaningful review to determine whether the Board’s conclusion that Coon-er had violated Rules 1.7(b), 8.4(a), 8.4(c),

and 8.4(g), Ala. R. Prof. Cond., was supported by clear and convincing evidence. Cooner v. Alabama State Bar, 59 So.3d 29 (Ala.2010) (“Cooner I") Accordingly, this Court reversed the Board’s judgment as to those violations, ordered the Board to vacate its order of disbarment as to those violations, and remanded this case for the Board to enter a new order that complied with Rule 4.2, Ala. R. Disc. P. On June 27, 2012, the Board entered its “Report and Order (On Remand)” (“the order on remand”). Cooner then appealed to this Court from that order.

Standard of Review

“‘The standard of review applicable to an appeal from an order of the Disciplinary Board is “that the order will be affirmed unless it is not supported by clear and convincing evidence or misapplies the law to the facts.” Noojin v. Alabama State Bar, 577 So.2d 420, 423 (Ala.1990), citing Hunt v. Disciplinary Board of the Alabama State Bar, 381 So.2d 52 (Ala. 1980).’
“Davis v. Alabama State Bar, 676 So.2d 306, 308 (Ala.1996).”

Cooner I, 59 So.3d at 37.

Discussion

I.

Cooner argues that the order on remand does not comply with this Court’s mandate in Cooner I. In Cooner I, this Court held that the recitation of the evidence in the Board’s original order did not constitute findings of fact as to each allegation of misconduct and that the Board’s order did not contain conclusions of law as to each allegation of misconduct. Thus, we remanded the case for the Board to vacate its February 17, 2010, order of disbarment and to enter a new order that complied with Rule 4.2, Ala. R. Disc. P.

On appeal from the order on remand, Cooner contends that the Board did not vacate its February 17, 2010, order, even though this Court instructed it do so in Cooner I; that the order on remand does not comply with this Court’s mandate in Cooner I because it does not include specific findings of fact as to each allegation of misconduct; that the Board made only “cosmetic changes” in the order on remand; and that the order on remand “still simply recites the testimony and other evidence presented at the hearing.” Cooner’s brief, at p. 16. We agree.

Initially, it does not appear that the Board vacated its February 17, 2010, order as we instructed in Cooner I. In fact, the Board adopted the procedural history set forth in the February 17, 2010, order.

The order on remand contains a section titled “Findings of Fact,” which includes a statement of facts with numbered paragraphs. It also includes a section titled “Conclusions of Law,” in which the Board quoted the specific Rule of Professional Conduct involved in charges IV, IX, X, and XI against Cooner, and found that Cooner was guilty of violating each of those rules.

However, the order on remand does not fully comply with our mandate in Cooner I because the order on remand still does not include specific findings of fact as to each allegation of misconduct. In its brief, the Bar states:

“Construing the Disciplinary Board’s order as a whole, it first references this Court’s opinion of October 8, 2010, and states the Board’s intention to enter a report and order consistent with that opinion. (C. 29) The Board next references the prior order of February 17, 2010, and adopts the ‘PROCEDURAL HISTORY’ section of that order by reference. (C. 29) The next section of the Board’s order is captioned ‘FINDINGS OF FACT,’ which contains 30 separately numbered paragraphs of facts as found by the Disciplinary Board. (C. 29-35) Clearly, a valid construction of this section of the Board’s order is that these separately numbered paragraphs are, indeed, the findings of fact as found by the Board.”

The Bar’s brief, at p. 43 (capitalization in original). However, the “findings of fact” included in the order on remand are nothing more than a general recitation of the evidence presented at the hearing. Additionally, those “findings of fact” are nearly identical to the recitation of evidence this Court previously held was not sufficient to comply with Rule 4.2, Ala. R. Disc. P. See Cooner I, 59 So.3d at 39. Because the order on remand does not include specific findings of fact as to each allegation of misconduct, the order on remand does not comply with either Rule 4.2, Ala. R. Disc. P., or with this Court’s mandate in Cooner I, supra. Accordingly, we must again reverse the Board’s order of disbarment and remand this cause with directions that the Board vacate its February 17, 2010, order of disbarment, vacate its order on remand, and enter a new order that complies with Rule 4.2, Ala. R. Disc. P. See Cooner I, supra.

II.

Cooner also argues that this Court should dismiss the remaining formal charges against him because of the Board’s allegedly “excessive delay and its failure to comply with this Court’s mandate.” Cooner’s brief, at p. 19. Specifically, he contends that the Board’s failure to comply with Rule 4.2, Ala. R. Disc. P., in its February 17, 2010, order frustrated his right to appellate review pursuant to Rule 12(f), Ala. R. Disc. P.; that the Board’s “inordinate, and unexplained delay in attending this Court’s mandate has delayed and consequently further frustrated, Mr. Cooner’s right to appellate review of the Board’s conclusions of guilt”; and that, if this Court concludes that the order on remand still does not comply with Rule 4.2, Ala. R. Disc. P., the allegedly excessive delay in this proceeding will only get worse. Cooner’s brief, at p. 21.

Cooner cites this Court’s decisions in Noojin v. Alabama State Bar, 577 So.2d 420 (Ala.1990), and Hayes v. Alabama State Bar, 719 So.2d 787 (Ala.1998), to support his position that the disciplinary charges against him should be dismissed based on the Board’s delay in entering the order on remand. However, the circumstances in Hayes and Noojin that warranted a dismissal of the disciplinary charges in those cases are vastly different from the circumstances presented here.

In Noojin, Noojin pleaded guilty to a misdemeanor in the United States District Court for the Southern District of Alabama (“the federal district court”). In November 1988, Noojin received a suspended sentence and probation. The conditions of his probation provided that he not engage in the practice of law for a period of one year and that, if a complaint based on the action charged in the federal criminal proceeding or any earlier act was filed with the Bar, Noojin’s response to the complaint would be that he would not oppose a one-year suspension of his law license.

On November 29, 1988, the Mobile Bar Association notified Noojin that there was a complaint against him that arose out of the action that was the basis for the proceedings in the federal district court. Noo-jin filed a written response that was accompanied by a conditional guilty plea. Noojin subsequently contacted the Bar regarding the status of the charges against him. Both individuals he spoke with told Noojin that the matter was still pending in the local committee. On June 29, 1989, Noojin filed a motion to dismiss the proceeding, even though no formal charges had been filed against him at that time. Noojin did not receive a response to his motion. However, on October 24, 1989, Noojin was served with disciplinary charges. After a hearing was conducted, the Board found him guilty of three of the six charges and suspended him from the practice of law for a period of one year. Noojin appealed from the Board’s order suspending him from the practice of law.

Citing Rule 11, Ala. R. Disc. Enf., for support, Noojin argued on appeal that the Board had violated his due-process and equal-protection rights by delaying or deferring the disciplinary action until after he had completed the probationary period imposed by the federal district court. Noojin, 577 So.2d at 421. This Court stated:

“The real issue ... is whether the provisions of Rule 11 should apply here, that is, whether the Board had ‘good cause’ to defer or delay this disciplinary proceeding because of the pending federal action, knowing that the federal judge had made it a condition of Noo-jin’s probation that he not practice law for at least one year and not oppose a one-year suspension by the Bar.”

Noojin, 577 So.2d at 424. In addressing this issue, this Court stated that, although the Bar had filed the formal charges against Noojin within the six-year period of limitations set forth in Rule 23, Ala. R. Disc. Enf., “special circumstances existed here, which appear to us to call for the application of the provisions of Rule 11.” 577 So.2d at 424. This Court also noted that the Bar’s delay in that case had worked to Noojin’s disadvantage. This Court looked at the fact that Noojin did not receive the formal charges until three or four weeks before the end of his one-year period of suspension that was a condition of his probation; the fact that it appeared that Noojin was contemplating that the Bar would take action against him when he entered his guilty plea in the federal district court and his conditional plea in the local grievance proceeding; the fact that the Bar did not deny that, or explain why, the proceeding was delayed until shortly before Noojin was to complete the one-year suspension that was a condition of his probation in the federal case; and the fact that Noojin had contacted the Bar at the time plea negotiations were being conducted and had inquired as to the status of the grievance proceeding. Ultimately, this Court stated that “the record here is sufficient for us to conclude that the spirit of Rule 11 has been violated and the State Bar has provided no good cause to delay.” 577 So.2d at 424. This Court went on to hold that, even if the disciplinary proceeding by the Bar was not barred, the question still existed as to “whether this Court should exercise its right to review the severity of the punishment in this case in view of all the attendant circumstances.” 577 So.2d at 424. After recognizing this Court’s inherent power to review discipline imposed by the Bar, this Court stated: “After examination of all the facts in this record, we believe that we should exercise our power and overturn the order of suspension in this case, because we believe it to be inappropriate in view of all the facts and circumstances of this case.” 577 So.2d at 425 (emphasis added). Thus, the decision in Noojin appears to have been based on special circumstances that are simply not present in this case.

In Hayes, the Bar filed formal charges against Hayes and two other attorneys on May 15, 1996. Subsequently, the three attorneys were indicted for conduct related to their practice of law. In preparing to answer the Bar’s formal charges against him and the other attorneys, Hayes sought discovery from the Bar regarding the allegations against him and sought to depose Richard Poff, whose complaint to the Bar had initiated the Bar’s investigation of the attorneys. During the deposition, general counsel for the Bar alleged the deposition of Poff “was being taken in a bad faith attempt to obtain discovery for the criminal cases and terminated the deposition.” 719 So.2d at 788 n. 2. On October 28, 1996, the Bar filed a motion with the Board seeking to stay the discovery in the attorneys’ disciplinary proceedings pending the trial in the criminal cases, which the Board granted. On February 14, 1997, the attorneys pleaded guilty to various misdemean- or charges. Subsequently, the Bar filed a petition pursuant to Rule 22(a)(2), Ala. R. Disc. P., and asked the Board to declare the misdemeanors to which the attorneys pleaded guilty “serious crimes,” and the Board granted the petition. The Board later entered an “Order of Final Discipline,” in which it suspended the three attorneys from the practice of law “for having committed ‘serious crimes’ as evidenced by their pleas to the charges in their criminal cases.” 719 So.2d at 789. On July 29, 1997, the attorneys filed motions to dismiss the remaining charges against them, which the Board denied. The attorneys appealed from the Board’s discipline order and also sought a petition for a writ of mandamus ordering the dismissal of the remaining charges pending against them.

Relying on this Court’s holding in Noojin, the attorneys in Hayes argued that the Bar’s delay with regard to the remaining formal charges violated Rule 14, Ala. R. Disc. P., and warranted dismissal of those charges. In addressing this issue, this Court examined the facts to determine whether there was good cause to defer or delay the disciplinary proceedings in that case. This Court stated:

“The Bar asserts that it ‘stayed’ the proceedings on the formal charges based on the attorneys’ alleged attempts to obtain discovery for their criminal cases. Aside from this assertion, the Bar has not attempted to provide a reason for its continued delay in regard to the formal charges against the attorneys.5 Therefore, if we accept the Bar’s only explanation of ‘good cause’ for delay, there remains a period of over a year, from February 14, 1997, to now, during which the Bar has taken no action to proceed on the merits of the formal charges. Under our Noojin analysis, we find that this delay in proceeding on the remaining formal charges is excessive. Therefore, because of the inordinate delay on the part of the Bar in pursuing the remaining formal charges against the attorneys, those charges are dismissed.
“ 5At.oral argument before this Court, in response to questions regarding the Bar’s continued delay in proceeding on the remaining formal charges, general counsel for the Bar stated that the Bar had stayed those disciplinary matters pending the outcome of the criminal cases against the attorneys, and that those charges were ‘pending,’ but he offered no further explanation for the delay.”

719 So.2d at 790-91. Thus, in Hayes, the remaining formal charges this Court ultimately dismissed had been stayed and were still pending at the time this Court held oral arguments. However, in this case, the Board has already conducted a hearing on the formal charges against Cooner and has found Cooner guilty of violating the Rules of Professional Conduct. Thus, the situation in this case is quite different from the situation presented by Hayes.

Additionally, Hayes and Noojin involved situations where the final disposition of the formal charges was stayed or deferred based on separate criminal proceedings. Therefore, those cases involved the application of Rule 14, Ala. R. Disc. P., and its predecessor, Rule 11, Ala. R. Disc. Enf. However, in this case, the Board did not delay or defer its entry of the order on remand based on separate criminal or civil litigation. As Cooner points out in his brief: “[N]o civil or criminal litigation was pending against [him] that might have served as an occasion for the Board to decide that good cause existed for the deferral or abatement of the case.” Coon-er’s brief, at p. 20. Therefore, this case does not implicate Rule 14, Ala. R. Disc. P.

For the above-stated reasons, the facts in our prior decisions in Hayes and Noojin are distinguishable from the facts in this case and do not offer any actual support for Cooner’s argument that the delay in the remand proceedings warrants a dismissal of the charges against him. Additionally, Cooner has not cited any additional authority that supports his specific contention that the delay in entering the order on remand warrants a dismissal of the formal charges against him. Thus, he has not established that he is entitled to the dismissal of the formal charges against him based on the Board’s delay in entering its order on remand.

For the above-stated reasons, we remand this cause -with instructions that the Board vacate its February 17, 2010, order

of disbarment; vacate the order on remand; and enter a new order that complies with Rule 4.2, Ala. R. Disc. P., and with this Court’s prior mandate in Cooner I. The Board shall make due return to this Court at the earliest possible time and within BO days after the date of this opinion.

REMANDED WITH INSTRUCTIONS.

MOORE, C.J., and STUART, BOLIN, PARKER, MURDOCK, MAIN, and BRYAN, JJ., concur.

WISE, Justice.

On Return to Remand

On February 17, 2010, a panel of the Disciplinary Board (“the Board”) of the Alabama State Bar (“the Bar”) ordered that Douglas H. Cooner be disbarred from the practice of law. Cooner appealed the Board’s decision to this Court. On October 8, 2010, this Court held that the Board’s order disbarring Cooner did not satisfy the requirements of Rule 4.2, Ala. R. Disc. P., because it did not include findings of fact as to each allegation of misconduct adequate for this Court to conduct a meaningful review to determine whether the Board’s conclusion that Coon-er had violated Rules 1.7(b), 8.4(a), 8.4(c), and 8.4(g), Ala. R. Prof. Cond., was supported by clear and convincing evidence. Cooner v. Alabama State Bar, 59 So.3d 29 (Ala.2010) (“Cooner I ”). Accordingly, this Court reversed the Board’s judgment as to those violations, ordered the Board to vacate its order of disbarment as to those violations, and remanded this case for the Board to enter a new order that complied with Rule 4.2, Ala. R. Disc. P.

On June 27, 2012, the Board entered its “Report and Order (On Remand)” (“the June 27, 2012, order on remand”). Cooner then appealed to this Court from the June 27, 2012, order on remand. On March 15, 2013, this Court held that the June 27, 2012, order on remand did not comply with either Rule 4.2, Ala. R. Disc. P., or with this Court’s mandate in Cooner I, supra, because it did not include specific findings of fact as to each allegation of misconduct. Cooner v. Alabama State Bar, 145 So.3d 1 (Ala.2013) (“Cooner II ”). Accordingly, we remanded this cause with directions for the Board to vacate its February 17, 2010, order of disbarment and the June 27, 2012, order on remand and to enter a new order that complies with Rule 4.2, Ala. R. Disc. P., and with this Court’s mandate in Cooner I.

On April 15, 2013, the Board submitted to this Court its “Second Report and Order (On Remand)” (“the second order on remand”).

Standard of Review
‘The standard of review applicable to an appeal from an order of the Disciplinary Board is “that the order will be affirmed unless it is not supported by clear and convincing evidence or misapplies the law to the facts.” Noojin v. Alabama State Bar, 577 So.2d 420, 423 (Ala.1990), citing Hunt v. Disciplinary Board of the Alabama State Bar, 381 So.2d 52 (Ala.1980).’
“Davis v. Alabama State Bar, 676 So.2d 306, 308 (Ala.1996).”

Cooner I, 59 So.3d at 37.

Discussion

In the second order on remand, the Board specifically stated that it was vacating all prior orders. Therefore, the Board has complied with our directions that it vacate its February 17, 2010, order of disbarment and the June 27, 2012, order on remand.

In its second order on remand, the Board quoted charges IV, IX, X, and XI from the complaint filed against Cooner. In its findings-of-fact section of the second order on remand, the Board stated:

“Being fully cognizant of the Alabama Supreme Court’s admonition in its Opinions of October 8, 2010 [Cooner I,] and March 15, 2013 [Cooner II], the same Findings of Fact as set forth in the Panel’s June 27, 2012, Report and Order (on Remand) will once again be set forth; however, specifically numbered Findings of Fact shall be connected to and recited as to each Charge in support of the Panel’s Conclusions of Law.”

The Board then recited the evidence in paragraphs 1 through 30 of the findings of fact, which was almost identical to the “Findings of Fact” in the June 27, 2012, order on remand. In its “Conclusions of Law” section in the second order on remand, the Board stated:

“1. Charge IV alleges a violation of Rule 1.7(b) of the Ala. R. Prof. C. as set forth above. This allegation of misconduct is specifically based upon and supported by Findings of Fact 1, 3, I, 5, 8, 9, 10, 11, 12, U, 16, 17, 18, 19, 20, 21, 2k, 25, 26, 27, 28, and 30.
“2. Charge IX alleges a violation of Rule 8.4(a) of the Ala. R. Prof. C. as set forth above. This allegation of misconduct is specifically based upon and supported by Findings of Fact 1, 3, k, 5, 8, 9, 10, 11, 12, Ik, 16, 17, 18, 19, 20, 21, 2k, 25, 26, 27, 28, and 30.
“3. Charge X alleges a violation of Rule 8.4(c) of the Ala. R. Prof. C. as set forth above. This allegation of misconduct is specifically based upon and supported by Findings of Fact 5, 6, 8, 9, 11, 12, U, 15, 18, 19, 20, 21, 21, 25, 26, 27, 28, and 30.
“4. Charge XI alleges a violation of Rule 8.4(g) of the Ala. R. Prof. C. as set forth above. This allegation of misconduct is specifically based upon and supported by Findings of Fact 1 through 30.
“The Panel finds that based upon the Findings of Fact assigned and related to each Charge as set forth above, that there is clear and convincing evidence that Mr. Cooner is guilty of violating each of those Charges of misconduct.”

(Emphasis added.)

In the second order on remand, the Board has once again failed to include specific findings of fact as to each allegation of misconduct. In its conclusions of law, the Board did not include a summary of the specific conduct it found constituted a violation of each Rule of Professional Conduct Cooner was charged with violating, and it did not include any explanation as to why such conduct constituted a violation of the particular rule. Rather, the Board merely cites laundry lists of the various paragraphs included in the “Findings of Fact.” References to paragraph numbers alone do not constitute findings of fact as to each allegation of misconduct. Also, with regard to Charge XI, the Board states that its finding of misconduct is “based upon and supported by Findings of Fact 1 through 30,” which is merely a reference to the entire “Findings of Fact.” Thus, it is clear that the Board is still relying solely on the general recitation of the evidence that is included in the “Findings of Fact” portion of the second order on remand. However, this Court has previously held that that general recitation of facts alone was not sufficient to comply with Rule 4.2, Ala. R. Disc. P. See Cooner I, 59 So.3d at 39; Cooner II, supra.

Accordingly, the Board still has not complied with this Court’s specific mandates in Cooner I and Cooner II. Therefore, we are again compelled to remand this cause with instructions that the Board vacate the second order on remand and enter a new order that complies with Rule 4.2, Ala. R. Disc. P., and with this Court’s prior mandates in Cooner I and Cooner II. The Board shall make due return to this Court at the earliest possible time and within 30 days after the date of this opinion.

REMANDED WITH INSTRUCTIONS.

STUART, BOLIN, PARKER, MAIN, and BRYAN, JJ., concur.

MOORE, C.J., and MURDOCK, J., dissent.

MURDOCK, Justice

(dissenting).

As the main opinion notes, in Cooner v. Alabama State Bar, 145 So.3d 1 (Ala.2013) (“Cooner II”), this Court remanded this case a second time because the order of the Disciplinary Board of the Alabama State Bar (“the Board”) on remand following this Court’s reversal and directions on remand in Cooner v. Alabama State Bar, 59 So.3d 29 (Ala.2010) (“Cooner I”), still “did not include specific findings of fact as to each allegation of misconduct.” 145 So.3d at 8. Although not recited in the main opinion issued today, our opinion in Cooner II also noted that a second remand was necessary at that time because the Board had not “vacated its February 17, 2010, order as we instructed in Cooner 145 So.3d at 3.

I agree with the main opinion that the Board has now vacated its February 17, 2010, order of disbarment and therefore has complied with that aspect of our mandate in Cooner II. I disagree with the main opinion, however, as to its decision that this case needs to be remanded for a third time for the Board to enter specific findings of fact.

There have been two problems all along with the purported findings of fact in this case. First, as explained in both Cooner I and Cooner II, there have not been actual findings of fact by the Board as opposed to general recitations of evidence heard by the Board. The main opinion in the present case states that “this Court has previously held that that general recitation of facts alone was not sufficient to comply with Rule 4.2, Ala. R. Disc. P.” 145 So.3d at 9 (emphasis added). This statement, however, actually recasts our previous holdings in a way that, I think, is responsible for an incorrect conclusion that we must remand this case once again. In point of fact, what we said in our previous opinions in this case is that a general recitation of “evidence” is not sufficient to constitute the requisite findings of “facts.” As we said in Cooner I:

“ ‘The Bar acknowledges that [in] Section II of the order ... the paragraphs are not preceded by the statement, “The Disciplinary Board finds as follows.”
“We have reviewed the Board’s order and conclude that the order does not satisfy the requirements of Rule 4.2, Ala. R. Disc. P. A recitation of the evidence does not constitute a finding of fact as to each allegation of misconduct....”

Cooner I, 59 So.3d at 38-39 (emphasis added). And as we said in Cooner II:

“[T]he ‘findings of fact’ included in the order on remand are nothing more than a general recitation of the evidence presented at the hearing.”

Cooner II, 145 So.3d at 3 (emphasis added).

The latest order issued by the Board, especially when read in its entirety, while not a model for future orders, suffices. To begin with, the recitation of facts begins with the statement that “[t]he Panel made the following Findings of Fact.” (Emphasis added.) In addition, gone from the discussion that follows are many of the references to what a witness stated in his or her testimony and in place of such references are definitive statements of fact apparently accepted by the Board as such. To take one example, in describing the evidence received from Leslie Barineau, a guardian ad litem for one of Douglas Cooner’s clients, the Board’s original order could be read as simply reciting Barineau’s testimony: “Ms. Barineau explained she had a difficult time obtaining an accounting or information from Mr. Cooner” and “[s]he identified the previously discussed accounting but stated it was not complete.” (Emphasis added.) This same information is now framed as definitive facts: “Ms. Barineau had a difficult time obtaining an accounting” and “[t]he accounting referenced ... above was not complete.”

The Board thus has done enough in my opinion to convert what previously were mere “general recitations” of testimony and other evidence into serviceable, if not ideal, factual findings.

The second problem all along has been the failure of the Board to align different factual findings with different conclusions of misconduct. The technique that the Board has finally employed is that of numbering paragraphs and then listing the corresponding numbers as part of the conclusion as to each charge. At the conclusion of this discussion, the order states: “The Panel finds that based upon the Findings of Fact assigned and related to each Charge as set forth above, ... there is clear and convincing evidence that Mr. Cooner is guilty of violating each of those Charges of misconduct.” Again, this approach is not recommended; it makes the order more difficult for this Court to review and assess. That said, I cannot go further and say that it warrants a third remand.

Based on the foregoing, I dissent from the reversal of the Board’s current order. I would proceed to a consideration of the merits of the Board’s findings and conclusions in that order.

      . The Board also concluded that Cooner had violated Rule 1.8(c), Ala. R. Prof. Cond. On appeal, Cooner conceded that the Board's findings of fact regarding its determination that he had violated Rule 1.8(c) were sufficient for appellate review. Based on that concession, this Court considered Cooner’s argument that the Board erred in finding that he had violated Rule 1.8(c), Ala. R. Prof. Cond.; held that Cooner’s preparation of the trust instrument did not violate Rule 1.8(c), Ala. R. Prof. Cond.; and reversed the Board’s judgment with regard to the violation of Rule 1.8(c), Ala. R. Prof. Cond.

      . The Bar argues that Cooner did not preserve this issue for our review because he did not raise this argument before the Board. However,
      ’’[wjith respect to a trial court’s duty on remand, we have said:
      " 'It is well established that on remand the issues decided by an appellate court become the "law of the case,” and that the trial court must comply with the appellate court's mandate. Walker v. Carolina Mills Lumber Co., 441 So.2d 980 (Ala.Civ.App.1983). See also Erbe v. Eady, 447 So.2d 778 (Ala.Civ.App.1984). The trial court’s duty is to comply with the mandate "according to its true intent and meaning,” as determined by the directions given by the reviewing court. Ex parte Alabama Power Co., 431 So.2d 151 (Ala. 1983).’ “Gray v. Reynolds, 553 So.2d 79, 81 (Ala. 1989).” Ex parte King, 821 So.2d 205, 208 (Ala.2001). Similarly, the Board had a duty to comply with this Court's mandate in Cooner I. Because the Board had a duty to comply with this Court's mandate, we will review Cooner’s claim even though he did not first present it to the Board.

      . In his reply brief, Cooner makes it clear that he is challenging the delay between this Court's decision in Cooner I and the entry of the order on remand and that he is not arguing that the charges against him should be dismissed based on the delay between the filing of formal charges and the first setting of the hearing.

      . Rule 11, Ala. R. Disc. Enf., read substantially the same as does current Rule 14, Ala. R. Disc. P. See Hayes v. Alabama State Bar, 719 So.2d at 790-91 n. 4. Rule 14, Ala. R. Disc. P„ provides:
      "Disciplinary proceedings shall not be deferred or abated because of substantial similarity to the material allegations of pending criminal or civil litigation involving the respondent, unless authorized by the Disciplinary Board, in its discretion, for good cause shown.”

      . The Board also concluded that Cooner had violated Rule 1.8(c), Ala. R. Prof. Cond. On appeal, Cooner conceded that the Board’s findings of fact regarding its determination that he had violated Rule 1.8(c) were sufficient for appellate review. Based on that concession, this Court considered Cooner’s argument that the Board erred in finding that he had violated Rule 1.8(c), Ala. R. Prof. Cond.; held that Cooner's preparation of the trust instrument did not violate Rule 1.8(c), Ala. R. Prof. Cond.; and reversed the Board’s judgment with regard to the violation of Rule 1.8(c), Ala. R. Prof. Cond.

       Note from the reporter of decisions: On August 23, 2013, on return to second remand, the Supreme Court affirmed, without opinion.