author: PITTMAN, Judge. MOORE, Judge, DONALDSON, Judge,

text:
    Wendy Graham EZELL v. Christopher GRAHAM.
    2120072.
    Court of Civil Appeals of Alabama.
    July 12, 2013.

      Stephen K. Winters of Thompson, Thompson & Winters, Butler, for appellant.
    J. Perry Newton and J. Blane Dolbare of Newton and Dolbare, P.C., Butler, for appellee.
   PITTMAN, Judge.

Wendy Graham Ezell (“the mother”) appeals from a judgment of the Choctaw Circuit Court, holding her in contempt for her willful failure and refusal to abide by the previous orders of the court concerning visitation by Christopher Graham (“the father”) with the parties’ minor son; sentencing her to five days in jail; and suspending the sentence conditioned upon her future compliance with the visitation schedule. We reverse.

Factual and Procedural Background

The parties were divorced in 2002; the mother was awarded sole physical custody of the parties’ four-year-old son, and the father was granted visitation rights. In 2006, the son indicated that he did not want to visit with, or to receive telephone calls from, the father. Initially, the mother compelled the son to visit with the father. Later, however, after the son had displayed physical symptoms — headaches, stomach aches, nausea, night sweats, nightmares, and decreased appetite — every time a visitation event approached, the mother took the son to be evaluated by Dr. Rita Lum, a board-certified child and adolescent psychiatrist.

Dr. Lum diagnosed the son as suffering from a generalized anxiety disorder, as well as major depression, oppositional-defiant disorder, and possible attention-deficit disorder. She prescribed medication — ari-piprazole and escitalopram oxalate — and recommended counseling for the son. Jean Merrell, a board-certified clinical counselor and psychotherapist, has been the son’s counselor since 2006. Her office notes reflect that the son had expressed a desire not to visit the father after the father’s remarriage and the birth of a daughter to the father and stepmother. Merrell met with both parents to discuss visitation issues. She recommended that the son not be forced to visit with the father, but that visitation be gradually and incrementally resumed on a “slow-paced schedule of relationship building” between the father and the son.

In May 2010, the father filed a petition seeking a finding of contempt as to the mother, alleging that she had failed to allow him to exercise the visitation rights set out in the parties’ divorce judgment. In November 2010, the father filed a motion for an emergency hearing concerning visitation, alleging that he had seen the son for a portion of only 11 days in 2010. Following several continuances, the trial court conducted a hearing on August 10, 2011. On August 25, 2011, the trial court entered an order requiring that the father have visitation beginning on August 27, 2011, from 9:00 a.m. to 10:80 a.m. in a public park; that the visitation be facilitated and supervised by social worker Vickie Hearn; and, thereafter, that visitation occur on alternating weekends beginning at 9:00 a.m. and lasting as long as Hearn determined was appropriate and beneficial to the son. ■ Following the entry of the August 25, 2011, order, the father had three brief visits with the son, two of which were cut short by the son, who stated that he was not feeling well or that he wanted to see a movie with his friends. The father contacted Hearn in an effort to arrange more visits; Hearn contacted the mother, but she was unsuccessful in setting up additional visitation.

On October 21, 2011, the father filed another contempt petition, alleging that the mother had failed to abide by the trial court’s August 25, 2011, order. On December 7, 2011, the father moved for an emergency order concerning Christmas holiday visitation. Following a telephone conference with the parties, the trial court ordered that the father have visitation on December 26, 2011. The trial of the father’s contempt petitions was set, and continued, several times. In setting the case for trial on September 5, 2012, the trial court ordered that the father have visitation on July 28 and August 12, 2012, and telephone contact with the son twice per week.

At trial, 4 witnesses — the father, the mother, the son, who was then 13 years old, and Hearn — testified. The trial court also received the deposition testimony of Dr. Lum and Merrell. The father stated that he had filed the contempt petition in May 2010 because, in the years following the parties’ divorce, his visits with the son had grown shorter and farther apart; sometimes, he said, he had not seen the son for months at a time. The father testified that, even after the entry of the trial court’s August 25, 2011, order establishing a revised visitation schedule, he had not been able to see the son between December 26, 2011, and July 28, 2012. When the father was questioned about what actions the mother had taken that indicated her willful failure to abide by previous visitation orders, the father repeated the eonclusory allegations contained in his petitions, stating, for example, that the mother “would not let [him] have his son when she was supposed to” or that the mother “would not allow [him] to pick up [the] son and have visitation with him.”

The father maintained that he was prepared to conduct his visits in a manner that would further the best interests of the son. He acknowledged that the son’s anxiety problems had existed since the son was seven years old, and he agreed that, because of the anxiety problems, the son should not be forced to visit him. The son testified that he did not want to visit the father because, he said, he “gets sick” when he visits. He testified that the mother had not prevented him from visiting the father.

The mother testified that she had never failed or refused to let the son visit the father. During times when she had compelled the son to visit with the father, the son had become sick with vomiting, diarrhea, and night sweats. The mother stated that she was not willing to punish the son in order to make him visit the father, but, she said, she would cooperate, within the limitations of the recommendations made by Dr. Lum and Merrell, in order to reestablish the son’s relationship with the father.

Dr. Lum testified that she had no information indicating that the mother was the source or cause of the son’s unwillingness to visit with the father. To the contrary, Dr. Lum said, the mother had encouraged the son to visit the father and had stated that her life would be easier if the son would visit with the father. Dr. Lum reiterated her recommendation that the son not be forced to visit the father against his will. Nevertheless, she opined that, because the son’s anxiety appeared to be triggered by visits with the father, the son would not be able to visit the father without both medication and therapy. She stated that the son, with the mother’s approval, had recently decided to discontinue the psychotropic drugs that had been prescribed for him. The father stated that he had been unaware of any specific issues concerning the son’s medications but that he preferred that the son not take drugs as strong as those that had been prescribed by Dr. Lum.

Merrell stated that during the period between October 1 and December 26, 2011, when the son had not visited the father, the son had been more sociable; his mood had leveled off; and he had not experienced night terrors. Merrell agreed with Dr. Lum that the son should not be forced to visit with the father and that the mother had not caused the son’s reluctance to visit. She stated: “I want to make it very clear that the problem is inside of [the son]. [1]⅛ not this man or this woman. Okay? I really want — I understand that somehow has gotten confused. This is [the son’s] biochemistry, okay, and that is why medication is needed as well as the counseling.” On cross-examination Mer-rell confirmed that she had directly asked the son why he did not want to visit the father. To her question, the son had replied, “Because I get sick.”

On September 28, 2012, the trial court entered a judgment that states, in pertinent part:

“2. The court finds from the evidence and testimony that [the mother] has willfully failed and refused to allow [the father] to exercise his court-ordered visitation with his minor son ... as ordered in the divorce [judgment] of May 22, 2002, and the court order of August 25, 2011. The court does not find a justifiable reason for the actions of [the mother].
“3. The [mother] is hereby held in contempt of court for her refusal to abide by the previous orders of this court concerning visitation by the [father] with his minor son.
“4. As a result of her contempt, the [mother] is hereby ordered to serve five days and five nights in the Choctaw County Jail for her contempt of court.
“5. The sentence is hereby suspended, conditioned upon the [mother’s] complying with the remaining provisions of this order concerning visitation by the [father] with the minor child. In the event the [father] does not receive all visitation with the minor child as ordered hereinafter, a writ for the arrest of the [mother] shall be issued without any additional hearing and she shall be required to serve the entire five day sentence as stated in paragraph four.”

The judgment further set out a visitation schedule for the father, directed that visitation be facilitated and supervised by Hearn, ordered that Hearn be compensated at the rate of $25 per hour, and required the mother to pay all costs associated with Hearn’s supervision until December 31, 2012, after which the parties would share the cost. Finally, the trial court set Monday, March 11, 2013, “for a review of the visitation schedule and to determine what changes are to be made to the ... schedule.”

On October 22, 2012, the mother filed a notice of appeal. On October 23, 2012, the trial court issued a writ of arrest for the mother for an alleged violation of the September 28, 2012, judgment. This court stayed execution of the writ of arrest on October 26, 2012.

Standard of Review

“[T]he standard of review in an appeal from an adjudication of criminal contempt occurring in a civil case is whether the offense, i.e., the contempt, was proved beyond a reasonable doubt. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); Combs v. Ryan’s Coal Co., 785 F.2d 970 (11th Cir.1986); and United States v. Turner, 812 F.2d 1552 (11th Cir.1987).... In Turner, the Court, in discussing the standard of review in a criminal-contempt case, said:
“ ‘The essential elements of the' criminal contempt for which punishment has been imposed on [the defendant] are that the court entered a lawful order of reasonable specificity, [the defendant] violated it, and the violation was wilful. Guilt may be determined and punishment imposed only if each of these elements has been proved beyond a reasonable doubt.’
“Turner, 812 F.2d at 1563. The Turner court also stated, quoting Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.1971):
“ ‘ “The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty, and that such evidence is inconsistent with any reasonable hypothesis of his innocence. Such is the substantial evidence test.” ’
“Turner, 812 F.2d at 1563.”

Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001).

Discussion

Before proceeding to the mother’s arguments, we address the father’s contention that we must dismiss the appeal as having been taken from a nonfinal order because the September 28, 2012, judgment set the matter for further review of the visitation schedule. We disagree. The September 28, 2012, judgment is appeal-able by virtue of its being an adjudication of criminal contempt. See Rule 70A(g), Ala. R. Civ. P.

The mother argues that the trial court was not presented with evidence indicating, beyond a reasonable doubt, that she had willfully failed and refused to allow the father to exercise visitation with the son. We agree.

This court was presented with similar facts in Shellhouse v. Bentley, 690 So.2d 401 (Ala.Civ.App.1997). There, the parties’ 15-year-old daughter, who had not had a good relationship with her mother during the parties’ marriage, refused to visit with the mother after the parties’ divorce. The father, the child’s custodian, had transported the daughter to meet the mother at the time and place appointed for visitation exchanges, but the daughter had refused to leave the father’s vehicle without physical force. The trial court held the father in contempt for “ ‘willfully and intentionally interfering’ ” with visitation between the mother and the daughter. 690 So.2d at 402. This court reversed, holding that “[t]here was no evidence to indicate that the father ha[d] willfully or intentionally interfered with the visitation schedule.” 690 So.2d at 403. The court further stated:

“We note the court’s concern to establish a relationship between the daughter and mother; however, the court must consider the best interests and welfare of the child, as well as the child’s maturity and age. Clark v. Blackwell, 624 So.2d 610 (Ala.Civ.App.1993); French v. Lyford, 636 So.2d 437 (Ala.Civ.App.1994). The North Carolina Court of Appeals has dealt with a problem similar to the one we have here; in Mintz v. Mintz, 64 N.C.App. 338, 307 S.E.2d 391 (1983), that court held that it violated the custodial parent’s due process rights to find that parent in contempt for the child’s refusal to visit the noncustodial parent. That court also stated that, based on the child’s age and maturity, a court could consider the child’s willingness or unwillingness to visit in determining the best interests and welfare of the child.”

690 So.2d at 403-04. In Hagler v. Hagler, 460 So.2d 187 (Ala.Civ.App.1984), this court stated:

“There are circumstances where it is reasonable, equitable and to the best interest of children that they not be required to visit with a non-custodial parent because of their unwillingness or fear to do so. Such a determination could be made by a trial court in a case where the evidence reasonably satisfied that court that it was not in the best interest of children to be made to visit with a non-custodial parent where they were so unwilling to visit that parent that adverse psychological damage would result and that no good would result from forced visitation. However, such a case is rare and the exception, for it is an extreme decision that restricts an otherwise relatively qualified parent from visiting his or her child
“On the other hand, regardless of a child’s fears and wishes, a trial court may, and normally should, require visitation even if it is forced upon a child, for the desires of a child might be given absolutely no credence in visitation litigation when the trial court is reasonably satisfied from the evidence that a child is merely parroting the wishes of the custodial parent, or that the child is too immature to form a considered opinion, or where the child expresses fears or unwillingness to visit without any reasonable basis or foundation.”

460 So.2d at 189. See also Clark v. Blackwell, 624 So.2d 610, 612 (Ala.Civ.App.1993) (following the general rule of required, or even forced, visitation when there was conflicting evidence “regarding the father’s fitness to continue to have visitation rights”). Cf. Shires v. Shires, 494 So.2d 102, 103 (Ala.Civ.App.1986) (departing from the general rule of required, or even forced, visitation; affirming a trial court’s judgment denying a father’s post-divorce request for visitation with his 18-year-old son; and stating that, “given the child’s advanced age ... and persistent reluctance to visit with his father,” the trial court could properly have found “that to force the child to visit would not be in the child’s best interest”).

The present case presents one of those exceptional circumstances in which it is not in the best interests of the child to be forced to visit the noncustodial parent because the child’s unwillingness stems from an anxiety disorder and forced visitation could cause “adverse psychological damage.” Hagler, 460 So.2d at 189. According to the uncontroverted testimony of the expert witnesses, Dr. Lum and Merrell, the existence of the son’s anxiety disorder indicates that he should not be forced to visit with the father before he is “able” to do so. Dr. Lum expressly stated that the son would not be “able” to visit with the father without both medication and therapy; she also stated that the son had discontinued using the medications that Dr. Lum had prescribed for him. Even the father acknowledged that the son had long experienced anxiety problems and admitted that the son should not be forced to visit him.

The present case does not fit within the general, required-visitation rule to which the Hagler court alluded because there is no evidence indicating that the son is “merely parroting the wishes of the [mother], or that the [son] is too immature to form a considered opinion, or [that the son has expressed] fears or unwillingness to visit without any reasonable basis or foundation.” Hagler, 460 So.2d at 189. The expert testimony indicates that the son’s anxiety is entirely biochemical, has been caused by a mental disorder, and, therefore, has a recognized, if not a reasonable, basis or foundation.

At trial, the father presented no evidence indicating that the son’s visitation-induced anxiety had been caused or manipulated by the mother. On appeal, he does not argue that the mother’s actions had brought about the son’s unwillingness to visit him. Cf H.H.J. v. K.T.J., 114 So.3d 36 (Ala.Civ.App.2012) (arguing that the child had been manipulated by the mother and that the child’s reluctance to visit was unreasonable). In his appellate brief, however, the father refers to a report of the guardian ad litem that states, in pertinent part:

“As [guardian ad litem], I believe that it is in the best interests of my client to have visitation with his father. [The son] tells me that he dearly loves his father and really cannot give me a reason why he doesn’t want to visit. I have a sneaking suspicion that [the] mother is incubating and exacerbating the problems that [the son] is having.”

(Emphasis added.) The guardian ad li-tem’s report, dated September 5, 2012, contains no certificate of service. The State Judicial Information System (“SJIS”) case-action summary does not indicate that the report was ever filed in the trial court. In her appellate brief, the mother asserts that the report was submitted to the trial court after the trial and before the hearing on her postjudgment motion, but, she says, she had been unaware of the existence of the report at the time of that hearing. The trial court’s judgment does not refer to or explicitly rely upon the report, and it is clear that any such reliance would have been unwarranted because the guardian ad litem’s “sneaking suspicion” is not evidence and the parties had no opportunity to contest the guardian ad litem’s conclusions in open court. See Ex parte R.D.N., 918 So.2d 100 (Ala.2005) (quoting Ex parte Berryhill, 410 So.2d 416, 418 (Ala.1982) (“‘The fundamental principle is that the decision of a court must be based on evidence produced in open court lest the guarantee of due process be infringed.’ ”), 918 So.2d at 104, and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“ ‘The essential requirements of due process ... are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.’”), id., and holding that “fundamental principles of due process are violated when a guardian ad litem communicates to the trial judge ex parte her recommendations regarding custody, without the knowledge or consent of the parties and without the parties’ having an opportunity to contest those recommendations in open court,” id. at 103).

We conclude that the evidence was insufficient to warrant the trial court in determining beyond a reasonable doubt that the mother had willfully failed and refused to allow the father to exercise his court-ordered visitation with the son. Therefore, we reverse the trial court’s September 28, 2012, judgment, and we remand the cause with instructions to vacate the contempt finding.

REVERSED AND REMANDED.

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

MOORE, J., concurs in the result, with writing.

DONALDSON, J., dissents, with writing.

MOORE, Judge,

concurring in the result.

The primary issue for our review is whether the Choctaw Circuit Court (“the trial court”) had before it sufficient evidence from which it could have determined beyond a reasonable doubt that Wendy Graham Ezell (“the mother”) committed criminal contempt by violating the visitation provisions of a 2002 judgment divorcing the mother from Christopher Graham (“the father”) as well as a pendente lite visitation order entered on August 25, 2011.

“ ‘Rule 70A(a)(2)(C)(ii) [, Ala. R. Civ. P.,] defines criminal contempt as “[wjillful disobedience or resistance of any person to a court’s lawful ... order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.” In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a “ ‘lawful order of reasonable specificity,’ ” that the party violated that order, and that the party’s violation of the order was willful. Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)).’

“L.A. v. R.H., 929 So.2d 1018, 1019 (Ala.Civ.App.2005).”

Preston v. Saab, 43 So.3d 595, 599 (Ala.Civ.App.2010). A judgment finding that a party has committed criminal contempt may be affirmed only if the trial court reasonably could have determined that the “ ‘ “evidence is inconsistent with any reasonable hypothesis of [the alleged eontem-nor’s] innocence.” ’ ” Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987), quoting in turn Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir.1971)).

The evidence in the record shows that the parties’ son did not visit with the father as required by the 2002 divorce judgment and the August 25, 2011, pendente lite order. The evidence further shows that the visitations did not occur because the son experienced severe and adverse emotional and physical reactions to visits with the father due to a variety of anxiety and other disorders and that the son did not want to visit with the father in order to avoid those consequences. The record contains no evidence (I concur that the report of the guardian ad litem should be disregarded) from which the trial court reasonably could have been convinced beyond a reasonable doubt that the visits did not occur due to the willful and contumacious conduct of the mother. See Shell- house v. Bentley, 690 So.2d 401 (Ala.Civ.App.1997) (contempt judgment against custodial parent reversed because evidence showed that visits with noncustodial parent did not take place due to child’s decision to forego visitation and not due to any willful and contumacious conduct on part of custodial parent). Therefore, I agree that the judgment of contempt is due to be reversed.

I note that the trial court did not modify the visitation schedule established in the 2002 divorce judgment, except on a pen-dente lite or temporary basis. Thus, the visitation schedule established in the 2002 divorce judgment remains intact. The mother did not request a modification of the visitation provisions of the 2002 divorce judgment, and she does not argue on appeal that the visitation provisions should have been changed. Thus, this court is not being asked to decide whether the evidence supports a finding that maintaining the same visitation schedule serves the best interests of the child. Consequently, I do not join any aspect of the main opinion implying that the child no longer needs to visit with the father or that the trial court would have been authorized to terminate visitation.

DONALDSON, Judge,

dissenting.

I respectfully dissent from decision to reverse the judgment finding Wendy Graham Ezell (“the mother”) to be in contempt. Disputed facts were presented to the trial court in a ore tenus proceeding. Without question, the evidence would have supported a finding by the trial court that the mother was not in contempt. But my reading of the transcript shows sufficient evidence from which the trial court could find, beyond a reasonable doubt, that the mother had intentionally thwarted court-ordered visitation with Christopher Graham (“the father”) by refusing to transport the child to the scheduled visitation locations and by refusing to cooperate with the father and a social worker in facilitating visitation with the child. Unless or until the court order establishing visitation was vacated or modified, the parties were bound to comply with it. The record contains a transcript of the postjudgment motion hearing at which the trial court specifically referenced, as an example of the mother’s noncompliance, the mother’s testimony that she told the social worker that she would not permit the child to visit with the father. The mother argued that her reasons justified her actions; the trial court disagreed. The credibility of the witnesses, including the child, was for the trial court to evaluate:

“When evidence is presented ore ten-us, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented. Blackman v. Gray Rider Truck Lines, Inc., 716 So.2d 698, 700 (Ala.Civ.App.1998). The role of the appellate court is not to reweigh the evidence but to affirm the judgment of the trial court if its findings are reasonably supported by the evidence and the correct legal conclusions have been drawn therefrom. Ex parte Trinity Indus., [Inc.,] 680 So.2d [262] at 268-69 [ (Ala.1996) ]; Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999). The ‘appellate court must view the facts in the light most favorable to the findings of the trial court.’ Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2008).”

Ex parte Hayes, 70 So.3d 1211, 1215 (Ala.2011).

So long as the evidence is sufficient to support a finding of contempt, that finding is for the trial court to make in the exercise of its “sound discretion.” S.A.T. v. E.D., 972 So.2d 804, 809 (Ala.Civ.App.2007) (holding that the trial court was in the best position to determine whether the mother’s excuse for noncomplianee with a visitation order was credible). Because I believe the evidence was sufficient to support the finding of contempt, I respectfully dissent.


source: Caselaw Access Project

author: JOINER, Judge.

license: Public Domain

text:
    Mark Anthony BEECHAM v. STATE of Alabama.
    CR-12-0508.
    Court of Criminal Appeals of Aabama.
    July 12, 2013.
    John E. Byrd, Jr., Dothan, for appellant.

      Luther Strange, atty. gen., and William D. Dill, asst. atty. gen., for appellee.
   JOINER, Judge.

Mark Anthony Beecham was convicted of first-degree bail jumping, see § 13A-10-39, Ala.Code 1975, and was sentenced to 10 years’ imprisonment. We reverse the conviction and render a judgment for Beecham.

Beecham was arrested for and charged with first-degree rape, two counts of first-degree sodomy, and first-degree burglary. Beecham was subsequently indicted on those charges — case numbers CC-2006-616, CC-2006-617, CC-2006-618, and CC-2006-619 (“original charges”) — and was released on bond. While on bond, Beecham was arrested on new charges, and the State filed a motion to revoke Beecham’s bond on his original charges.

On January 3, 2007, Beecham failed to appear at a court date on his original charges, which included a “docket call” and a hearing on the State’s motion to revoke bond. (C. 64-92.) Beecham was then indicted by a Houston County grand jury on first-degree bail jumping, see § 13A-10-39, Ala.Code 1975. Specifically, Beecham was indicted as follows:

“The Grand Jury of said county charge that, before the finding of this indictment, Mark Anthony Beecham, whose name is otherwise unknown to the Grand Jury, having been released from custody with or without bail, upon condition that he subsequently appear on January 3rd, 2007, at Circuit Court, Do-than, Alabama, in connection with the charge of his having committed murder or a Class A or Class B felony, to wit, rape first degree, sodomy first degree, two counts, and burglary first, did fail to appear at such time and place in violation of Section 13A-10-39 of the Code of Alabama against the peace and dignity against the State of Alabama.”

(C. 6 (emphasis added).)

At trial, the State’s case-in-chief consisted exclusively of the testimony of Carla Woodall, the Houston County circuit clerk. Woodall, who testified that she was the official record keeper for the judicial system in Houston County, provided certified copies of the records related to Beecham’s original charges for the period beginning on the date of the indictment against Beec-ham and ending on the date the alias writ and forfeiture of bond were issued for Beecham. (R. 74-76.) Regarding these records, she testified as follows:

“Q. Now, do your records reflect, Ms. Woodall, that — and I think it’s probably encompassed in ... that case action summary, whether the defendant did appear either on January 3rd or January 8th or 11th or any other time before a warrant was issued on January 17th of 2007, for his failure to appear in court?
“A. Can I see one of those? Just one. Based upon the records, the case action summary reflects that there was a failure to appear and bond forfeited, an alias unit ordered and no bond on January 3rd. And on the warrant that was issued, the defendant failed to appear for docket call/trial, bond revoked.”

(R. 75-77; emphasis added.)

On cross-examination, however, Woodall testified regarding the specificity of the admitted records:

“Q. Does this — does this say anywhere that a hearing will be held on a certain date for Mr. Beecham’s bond to be revoked?
“A. No.
“Q. Was there a hearing date set on his bond to be revoked?
“A. Not according to the records.
“Q. Now, let’s go back and explain to the ladies and gentlemen of the jury — I know you understand it. But help me understand it a little bit. The warrant was for failure to appear at docket call/trial. Correct? Is that what you just testified?
“A. Correct.
“Q. Okay. I don’t want to misstate anything. Does it say here — and just listen to my question, now. Does it say here that Mr. Brantley or Mr. Beecham was notified of the trial date or the docket call date of January the 3rd, 2007, in this entry anywhere?
“A. On the case action summary?
“Q. Does it say it here anywhere?
“A. No.
“Q. On what’s been admitted?
“A. No, not on the case action summary.
“Q. I understand. You’ll agree with me — or maybe you won’t. But is there — is this entry anywhere down here about a January 3rd, 2007, date on this piece of paper?
“A. Say that one more time.
“Q. Is this entry about notifying, down here for the January 3rd date, to notify?
“A. No.”

(R. 78-80; emphasis added.)

On redirect examination, the State attempted to address whether Beecham and his attorney, Tom Brantley, received notice of the January 3, 2007, court date. Woodall testified broadly that Beecham’s jury trial was set for sometime in January 2007 and that the docket call would have, as a matter of course, occurred the week before his trial was set to begin. (R. 83.) Woodall also generally testified that attorneys of record are given notice of docket calls and that the circuit court does not notify defendants directly when they are represented by counsel. (R. 82-83.) Woo-dall also explained that, generally, docket notices — such as one for the January 3, 2007, hearing date — are prepared and disseminated to attorneys in Houston County 30 days before the docket call, and that “the docket would have been copied and placed in Mr. Brantley’s attorney box to be picked up by Mr. Brantley.” (R. 81.)

At the close of the State’s case, Beecham moved the circuit court for a judgment of acquittal “based upon lack of a prima facie case being the elements of bail jumping, that the State has not proven a prima facie case of those elements.” (R. 86.) The circuit court denied the motion, and Beecham was eventually convicted. Beecham now appeals, arguing that the circuit court erroneously denied his motion for a judgment of acquittal. We agree. Zumbado v. State, 615 So.2d 1228, 1241 (Ala.Crim.App.1993).

“The issue of the sufficiency of the evidence is preserved for review by a defendant’s motion for a judgment of acquittal that is entered at the end of the state’s case, at the close of the evidence ..., or after the verdict is entered.”
“ ‘ “The trial court’s denial of a motion for judgment of acquittal must be reviewed by determining whether there was legal evidence before the jury at the time the motion was made from which the jury by fair inference could find the defendant guilty. Thomas v. State, 368 So.2d 1020 (Ala.Crim.App.1978). In applying this standard, this court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Crim.App.1983).” ’ ”

Hollaway v. State, 979 So.2d 839, 843 (Ala.Crim.App.2007) (quoting Gavin v. State, 891 So.2d 907, 974 (Ala.Crim.App.2003), quoting in turn Ward v. State, 610 So.2d 1190, 1191 (Ala.Crim.App.1992) (citations omitted) (emphasis added)).

“ ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefore, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Crim.App.1984), affirmed, Ex parte Faircloth, [471 ] So.2d 493 (Ala.1985).
“ ‘ “The role of the appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). ... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[Wjhere there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960).’ Granger [v. State ], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985) ].”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

Beecham was indicted and tried under § 13A-10-39(a), Ala.Code 1975, which provides:

“[A] person commits the crime of bail jumping in the first degree if, having been lawfully released from custody, with or without bail, upon condition that he will subsequently appear at the specified time and place in connection -with a charge of his having committed murder or any Class A or Class B felony, he fails to appear at the time and place.”

Beecham contends “that the verdict was contrary to the law because the [S]tate never introduced evidence showing that [Beecham] knew about the trial date of January 3, 20[07], or that he should have known about the date of January 3, 20[07].” (Beecham’s brief, p. 16.)

In Sanders v. State, [Ms. CR-10-1091, Dec. 14, 2012] — So.3d -, - (Ala.Crim.App.2012), this Court stated:

“In any case involving statutory construction, our inquiry begins with the language of the statute, and if the meaning of the statutory language is plain, our analysis ends there. Ex parte Moore, 880 So.2d 1131, 1140 (Ala.2003) (‘ “ ‘The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute.’ ” ’) (quoting Ex parte Weaver, 871 So.2d 820, 823 (Ala.2003), quoting in turn Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996)). This Court in De-Kalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275-76 (Ala.1998), explained:
“ ‘In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“ ‘ “ ‘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. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’
729 So.2d at 275-76 (quoting Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998), additional citations omitted). See also 729 So.2d at 276 (explaining that the separation-of-powers doctrine requires a court to use the plain-meaning rule in construing a statute and that ‘only if there is no rational way to interpret the words as stated will [a court] look beyond those words to determine legislative intent’).”

Looking at the plain language of the statute, in order to convict under Alabama’s first-degree bail-jumping statute, the State must prove that a defendant was released “upon condition that he will subsequently appear at the specified time and place.” § 13A-10-39, Ala.Code 1975. The statute requires, under its plain language, that the date and time of the defendant’s reappearance be “specified.” “Specify” is defined as “to name or state explicitly or in detail.” Merriam-Webster’s Collegiate Dictionary 1198 (11th ed. 2003). Likewise, there can be no “condition” to “subsequently appear” if there is no notice of the required appearance. A “condition” is defined as “something essential to the appearance or occurrence of something else.” Merriam-Webster’s Collegiate Dictionary 258. In this case, there is no evidence that January 3, 2007, was a “specified” date on which the defendant was to “appear,” and, further, even if there were such evidence, there was no evidence that either Beecham or his attorney received notice of the January 3, 2007, docket call and hearing date— i.e., the condition that he appear.

Although there is no Alabama caselaw interpreting § 13A-10-39, the commentary to Alabama’s first- and second-degree bail-jumping statutes indicates that the statutes are “derived from the Michigan Revised Criminal Code ... which is derived from the New York Revised Penal Law.” § 13A-10-40, Ala.Code 1975 (commentary). New York’s bail-jumping statute is similar to Alabama’s; the New York statute provides:

“A person is guilty of bail jumping in the first degree when by court order he had been released from custody or allowed to remain at liberty, either upon bail or his own recognizance, upon condition that he will subsequently appear personally in connection with an indictment pending against him which charges him with the commission of a class A or class B felony, and when he does not appear personally on the required date or voluntarily within thirty days thereafter.”

N.Y. Penal Law § 215.57. New York has interpreted this statute to include three elements:

“(1) [that] the defendant was released from custody or allowed to remain at liberty by a court order; (2) [that] the order expressly imposed a condition that the defendant later appear personally in connection with a pending crim inal charge; and (3) [that] the pending charge referred to in the order was an indictment for a class A or B felony.”

People v. Wilder, 98 N.Y.2d 352, 358-59, 690 N.Y.S.2d 483, 712 N.E.2d 652 (1999) (emphasis added).

Under both New York and Michigan law, notice of the appearance date is required in order to convict for bail jumping under the respective statute. See People v. Rorke, 80 Mich.App. 476, 478, 264 N.W.2d 30 (1978) (“No proofs were submitted to the magistrate showing that defendant was given notice of the trial date or that he was otherwise apprised of the trial date and neglected to attend. Thus, the significant issue in this appeal is whether the above-quoted statute requires proof of scienter. We hold that it requires minimal proof of reckless neglect or disregard of a known obligation to appear and defend.”); People v. White, 115 A.D.2d 313, 314, 496 N.Y.S.2d 187, 188 (1985) (“There was overwhelming evidence that defendant had constructive knowledge of the adjourned sentencing date. The date was entered in the official court records. It was uncontradicted that defendant’s counsel, who was present in court on November 4 and November 23, 1981, had knowledge of the sentencing date set for his client.”).

The State argues, however, that the evidence was, in fact, sufficient to sustain Beecham’s conviction.

In support of its contention that the evidence in this matter was, in fact, sufficient to sustain a conviction, the State argues that it

“proved each of the elements of first degree bail jumping. The State adduced testimony from the circuit clerk, supported by documents from Beee-ham’s court file which proved that Beec-ham was scheduled to appear in Houston County Circuit Court for a motion to revoke his bond and a docket call on January 3, 2007 for a trial scheduled in CC 06-616, 617, and 618, on January 11. On each of those dates, Beecham failed to appear for court, and a warrant was issued for his arrest. (C. 6; R. 70, 75, 77, 92)”

(State’s brief, p. 8 (emphasis added).) The State’s argument is problematic on a number of levels.

First, the State’s argument on its face references two different court appearances — one for January 3, 2007, and another for January 11, 2007 — which led to a warrant being issued for Beecham’s arrest for first-degree bail jumping. The date of January 11, 2007, is not mentioned in the indictment on which Beecham was tried. The only date mentioned in the indictment charging Beecham with first-degree bail jumping is January 3, 2007; therefore, only that date is material to this analysis.

Second, the State argues that Beecham was scheduled to appear in the Houston Circuit Court on January 3, 2007, for a docket call and a hearing on a motion to revoke bond and that he failed to appear on that date. The evidence presented during the State’s case-in-chief — which consisted of the certified case-action summary and the testimony of Woodall — makes no such showing.

The certified case-action summary does not reflect that the docket call or a hearing on the State’s motion had been set for any specific date, much less January 3, 2007. The only mention of January 3, 2007, on the case-action summary is an entry noting that Beecham had failed to appear in court on that date and that an alias writ and forfeiture of bond had been ordered. Although that notation on the case-action summary may be evidence that a hearing took place, it is not evidence that Beecham was scheduled to appear, or that he or his attorney had been notified of the court date. Although Woodall testified to the circuit court’s general practice of setting docket calls a week before trial and testified to her general practice of notifying attorneys of a docket call, Woodall did not testify to the specific date of Beecham’s trial — upon which the date of the docket call was contingent — nor did she testify that, in this case, she followed her normal procedures for notifying attorneys of the docket call. In short, Woodall never testified to setting a date for the docket call and hearing, to notifying Beecham or his attorney of the court appearance, or to recording either the scheduling or notification of such scheduling in the records in Beecham’s case.

Under the facts of this case, the State in its case-in-chief failed to adduce sufficient evidence in support of a prima facie case of first-degree bail jumping, and Beecham’s motion was therefore due to be granted at the close of the State’s case. Accordingly, the judgment of conviction is due to be reversed, and a judgment is rendered acquitting Beecham of first-degree bail jumping.

REVERSED AND JUDGMENT RENDERED.

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

      . Beecham was also ordered to pay a $500 fine, a $500 crime victims compensation assessment, attorney fees, and court costs.

      . First-degree rape, first-degree sodomy, and first-degree burglary are all class A felonies. See §§ 13A-6-61, 13A-6-63, and 13A-7-5, Ala. Code 1975.

      . Testimony offered the following description of a docket call:
      "[P]rior to the week of a criminal jury term.... the judge for the case calls their docket for every case set for that week. The attorney announces whether the case will be a trial, whether it will be a guilty plea, whether they’re ready. The State will also announce — it's more or less like a status call. And at that time, the judge will also entertain any guilty pleas that want to be taken or any motions.”
      (R. 84.)

      . According to the State’s interpretation of the first-degree bailing-jumping statute, a defendant is guilty of the offense when the defendant fails to appear for a hearing that may or may not have been scheduled, and for which he may or may not have received notice; we do not read the statute so broadly.


author: WELCH, Judge. JOINER, Judge,

text:
    Michael Dewayne ANDERSON v. STATE of Alabama.
    CR-12-0958.
    Court of Criminal Appeals of Alabama.
    July 12, 2013.
    Michael Dewayne Anderson, pro se.
    Luther Strange, atty. gen., and Jean A. Therkelsen, asst. atty. gen., for appellee.
   WELCH, Judge.

Michael Dewayne Anderson appeals the circuit court’s denial of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his 1997 conviction for intentional murder and his resulting sentence as a habitual felony offender to life imprisonment. This Court affirmed Anderson’s conviction and sentence on appeal in an unpublished memorandum issued on October 31, 1997. Anderson v. State, (No. CR-96-1106) 727 So.2d 179 (Ala.Crim.App.1997) (table). This Court issued a certificate of judgment on November 18,1997.

Anderson filed this, his 12th, Rule 32 petition on August 15, 2012. In his petition, Anderson made the following allegations: 1) that the trial court lacked jurisdiction to render a judgment or to impose sentence because, he says, the State did not follow § 15-8-25, Ala.Code 1975, in that the indictment did not state the facts against him or identify him by his date of birth or Social Security number; 2) that the trial court lacked jurisdiction to appoint counsel for him without his consent; and 3) that he was denied his constitutional right to testify because his statement made during police interrogation should have been submitted to the court as testimony.

On August 20, 2012, the circuit court ordered that the State’s reply to Anderson’s petition was due on October 11, 2012. On September 7, 2012, Anderson filed a motion requesting leave of court to file an amendment to his petition. In that motion, Anderson argued as amended grounds that he is innocent, that he was denied the right to confront his accuser at the preliminary hearing, that he was not provided a record of the preliminary hearing, that the complaint and affidavit used to obtain the warrant against him were illegal, and that the evidence relied upon to arrest him was illegally obtained. On that same day, the circuit court denied Anderson’s motion for leave to file an amended petition.

On October 11, 2012, the State filed a motion to dismiss the petition, arguing that the petition was time-barred by Rule 32.2(c) and that it was successive under Rule 32.2(b). The State also argued that the claims in the petition were precluded because these claims could have been, but were not, raised at trial or on appeal. See Rules 32.2(a)(3) and (a)(5). On October 25, 2012, Anderson filed an objection to the State’s response. On February 19, 2013, Anderson filed another motion to amend, and the circuit court denied that motion on February 20, 2013. On that same day, the circuit court issued an order summarily dismissing Anderson’s petition, finding the claims precluded as successive under Rule 32.2(b), time-barred by Rule 32.2(c), and precluded under Rules 32.2(a)(3) and (a)(5), because they were claims that could have been, but were not, raised at trial or on appeal. This appeal follows.

On appeal, Anderson appears to reassert the claims raised in his petition. Anderson also argues the claims he attempted to raise in his request to amend his petition. Anderson further argues that the circuit court erred in denying his motion for leave to amend his petition. We agree. Because of our disposition of this case, we need address only this issue.

In Broadnax v. State, 987 So.2d 631 (Ala.Crim.App.2007), this Court stated:

“In Ex parte Rhone, 900 So.2d 455 (Ala.2004), the Alabama Supreme Court set forth the principles governing amendments to Rule 32 petitions:
“‘This Court’s statements concerning the amendment of Rule 32 petitions are supported by the plain language of Rule 32.7, Ala.R.Crim.P. Subsection (b) of that rule unambiguously grants discretion to the trial court, providing that “[ajmendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.” (Emphasis added [in Ex parte Rhone ].) Guiding the exercise of that discretion is the mandate of subsection (d) that “[ljeave to amend shall be freely granted.” (Emphasis added [in Ex parte Rhone].) However, because the trial court has discretion to refuse an amendment to a Rule 32 petition, we must consider the nature of the factors that would provide a proper basis for such a refusal.
“ ‘In Ex parte Allen, [825 So.2d 271 (Ala.2002),] this Court cited Talley v. State, 802 So.2d 1106, 1107 (Ala.Crim. App.2001), in support of our statement of the principles relevant to the amendment of Rule 32 petitions. In Talley, the Court of Criminal Appeals stated:
“ ““ “[Ajmendments should be freely allowed and ... trial judges must be given discretion to allow or refuse amendments.... The trial judge should allow a proposed amendment if it is necessary for a full determination on the merits and if it does not unduly prejudice the opposing party or unduly delay the trial.” Record Data International, Inc. v. Nichols, 381 So.2d 1, 5 (Ala.1979) (citations omitted). “The grant or denial of leave to amend is a matter within the sound discretion of the trial judge....” Walker v. Traughber, 351 So.2d 917 (Ala.Civ.App.1977).’
“ ‘ “Cochran v. State, 548 So.2d 1062, 1075 (Ala.Crim.App.1989).”
“ ‘802 So.2d at 1107-08 (emphasis added [in Ex parte Rhone ]). The statements in Talley are consistent with this Court’s prior decisions, as well as with Rule 32.7. Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.’ 900 So.2d at 457-58. The Court then concluded that ‘[t]he right to amend is limited by the trial court’s discretion to refuse an amendment based upon factors such as undue delay or undue prejudice to the opposing party. That limitation is ... sufficient to protect the rights of the parties, while allowing the trial court sufficient control over the management of its docket.’ 900 So.2d at 459.
“In Ex parte Jenkins, 972 So.2d 159 (Ala.2005), the Alabama Supreme Court further explained its holding in Ex parte Rhone:
“ ‘This Court recently examined the principles applicable to the amendment of Rule 32 petitions in Ex parte Rhone, 900 So.2d 455 (Ala.2004). In Rhone, the petitioner moved to amend his Rule 82 petition 16 days after the trial court had received the original petition. In denying the petition, the trial court addressed only the claims in the original petition. The Court of Criminal Appeals affirmed the denial, holding that the trial court had not exceeded its discretion in failing to address the claims in the amendment to Rhone’s petition because “Rhone failed to meet his initial burden of showing diligence in filing the amendment or that the facts underlying the amendment were unknown to him before filing his original petition.” Rhone v. State, 900 So.2d 443, 448 (Ala.Crim.App.2004). This Court granted certiorari review to consider Rhone’s contention that the Court of Criminal Appeals’ decision conflicted with the well-established principle stated by this Court in Ex parte Allen, 825 So.2d 271, 273 (Ala.2002), that although “[ljeave to amend a Rule 32 petition is within the discretion of the trial court, ... it should be freely granted.”
“ ‘In considering the nature of the factors that would provide a proper basis upon which a trial court could exercise the discretion to disallow an amendment to a Rule 32 petition, this Court stated in Ex parte Rhone that “it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.” 900 So.2d at 458. We concluded in Rhone that the Court of Criminal Appeals erred in imposing upon a Rule 32 petitioner an “initial burden” to show diligence in filing the amendment or that the facts underlying that amendment were unknown when the original petition was filed. We stated: “Such a burden is clearly inconsistent with the mandate of this Court, as expressed in both its decisions and in Rule 32, that leave to amend should be freely granted.” 900 So.2d at 458-59.
“ ‘This Court also responded in Ex parte Rhone to the Court of Criminal Appeals’ statement that the only alternative to its holding in Rhone v. State would be “ ‘to allow a petitioner the unfettered right to amend his Rule 32 petition.’ ” 900 So.2d at 459. We responded:
“ ‘ “That statement, however, is not correct. The right to amend is limited by the trial court’s discretion to refuse an amendment based upon factors such as undue delay or undue prejudice to the opposing party. That limitation is, in this Court’s opinion, sufficient to protect the rights of the parties, while allowing the trial court sufficient control over the management of its docket.”
“ ‘900 So.2d at 459.
“‘As we held in Ex parte Rhone, however, a petitioner does not have the unfettered right to file endless amendments to a Rule 32 petition. The right to amend is limited by the trial court’s discretion to refuse to allow an amendment if the trial court finds that the petitioner has unduly delayed filing the amendment or that an amendment unduly prejudices the State. Such an exercise of the trial court’s discretion would certainly be appropriate, for example, if, on the eve of an evidentiary hearing, a Rule 32 petitioner filed an amendment that included new claims of which the State had no prior notice and as to which it was not prepared to defend.
“‘We emphasize that the concepts of “undue delay” and “undue prejudice” as discussed in this opinion and in Ex parte Rhone apply to the trial court’s management of its docket and to the petitioner’s attention to his or her case. Those concepts cannot be applied to restrict the petitioner’s right to file an amendment clearly provided for in Rule 32.7 simply because it states a new claim that was not included in the original petition.’
972 So.2d at 163-164.
“Subsequently, in Ex parte Woods, 957 So.2d 533 (Ala.2006), the Supreme Court applied its holding in Ex parte Rhone. In Ex parte Woods, the petitioner filed a Rule 32 petition in July 2002, and an amendment to the petition in November 2002. After a status conference in December 2002, the circuit court ordered both parties to submit proposed orders by the end of January 2003. However, instead of following the circuit court’s request and submitting a proposed order, the petitioner submitted a second amended petition. The State objected, and the circuit court struck the second amended petition. Six months later, in July 2003, the circuit court summarily dismissed Woods’s petition. This Court held that the circuit court had not erred in striking the second amended petition, Woods v. State, 957 So.2d 492 (Ala.Crim.App.2004), but the Alabama Supreme Court reversed our judgment, holding that ‘[t]he facts of this case do not establish that the circuit court’s consideration of Woods’s second amended petition would give rise to actual prejudice or cause undue delay.’ Ex parte Woods, 957 So.2d at 536-37.
“This Court has also addressed and applied the Supreme Court’s holding in Ex parte Rhone in Wilson v. State, 911 So.2d 40 (Ala.Crim.App.2005), and in Smith v. State, 961 So.2d 916 (Ala.Crim.App.2006). In Wilson, the petitioner filed his Rule 32 petition in December 2001, and an amendment in March 2002. Four days after the amendment was filed, the State filed a motion to dismiss the petition, attaching an affidavit from trial counsel. In July 2002, the petitioner filed a second amendment, responding to the State’s motion to dismiss and trial counsel’s affidavit. Four days later, the circuit court held a hearing on the State’s motion to dismiss and took the issue under advisement. In August 2002, the petitioner filed three more amendments; the fourth and fifth amendments included further responses to trial counsel’s affidavit. In October 2002, the circuit court issued an order summarily denying the petition without an evidentiary hearing and refusing to accept any of the petitioner’s amendments. This Court held that the circuit court erred in refusing to accept the first, second, fourth, and fifth amendments. With respect to the first amendment, this Court noted that it had been filed before the State had even responded, as had been the case in Ex parte Rhone, and, thus, accepting the amendment would have caused no undue delay or undue prejudice. With respect to the remaining amendments, this Court held that the amendments were the only avenue for the petitioner to respond to trial counsel’s affidavit, given that the circuit court had not held an evidentiary hearing, and that acceptance of the amendments, all filed within eight months of the original petition and two months before the circuit court’s summary denial of the petition, would not have unduly delayed the proceedings.
“In Smith, the petitioner filed his Rule 32 petition in June 2002, and the State responded. In September 2002, the petitioner filed his first amended petition, and attached an affidavit from Dr. Michael S. Maher in support of his allegation that his trial counsel were ineffective for not presenting evidence of his mental-health problems. The State again responded. The circuit court then set December 31, 2002, as the deadline for filing amendments. Over the next three years, the evidentiary hearing on the petition was continued several times, at both the State’s and the petitioner’s requests, and discovery was exchanged between the parties. On July 12, 2005, 13 days before the evidentiary hearing was scheduled to take place on July 25, 2005, the State filed an objection to some of the petitioner’s witnesses, arguing that only one expert witness had been identified in the petition, Dr. Maher, and that during Dr. Maher’s deposition, Dr. Maher had stated that the petitioner suffered from additional mental-health problems that Dr. Maher had not previously identified in his affidavit, which had been attached to the first amended petition. The State moved that no expert not specifically listed in the petition be allowed to testify at the evidentiary hearing and that Dr. Maher be allowed to testify only to that diagnosis that had been referred to in the affidavit. On July 18, 2005, only seven days before the evidentiary hearing, the petitioner filed a response to the State’s objection, as well as a motion to amend his petition, and a second amended petition setting forth additional factual allegations to support his claim that his trial counsel were ineffective for not presenting evidence of his mental-health problems and naming the additional expert witnesses who had been disclosed during the discovery process. The circuit court granted the State’s motion to limit Dr. Maher’s testimony to that information contained in his affidavit and to preclude the additional expert witnesses from testifying and denied the motion to amend.
“On appeal, this Court held that the circuit court erred in denying the petitioner’s motion to amend:
“ ‘Based on the Alabama Rules of Criminal Procedure and the Alabama Supreme Court caselaw quoted above, the circuit court erred when it set a deadline for amendments and stated that it would allow further amendments “only upon showing of good cause with evidentiary basis.” Instead, the circuit court could have properly denied an amendment only upon a finding of undue delay or undue prejudice. When it struck the Second Amended Petition, the circuit court did not cite either of these reasons.
“ ‘In his Second Amended Petition, the appellant did not raise new claims of which the State did not have prior notice and as to which it was not or could not have been prepared to defend. In fact, he amended only one paragraph — paragraph 105 — in his Second Amended Petition. In that paragraph, he fleshed out with more specificity his previous claim regarding his alleged mental health problems and the experts who would testify about such problems. The State argues that it did not have the specific information about which the experts intended to testify until shortly before the evidentiary hearing. However, the record shows that the State knew about the appellant’s experts and their conclusions almost one year before the appellant filed his Second Amended Petition. Also, it had the opportunity to depose the experts and learn more specific information about their opinions almost one year before the appellant filed his Second Amended Petition, and it specifically chose not to do so. In fact, the State waited until July 8, 2005, and then deposed only Maher. Further, even before the appellant attempted to file a Second Amended Petition, as evidenced by its “Memorandum Brief Concerning Issues to Be Considered by the Court at the Rule 32 Evidentiary Hearing,” the State was fully aware of his claims regarding his mental health condition. ...
“ ‘... Finally, the State retained its own mental health expert to evaluate the appellant and to rebut the appellant’s evidence regarding his mental health. Therefore, consideration of the Second Amended Petition, which simply expanded on a claim that had been included in both the original petition and the First Amended Petition, would not have caused undue prejudice to the State.
“ ‘Also, consideration of the Second Amended Petition would not have adversely affected the circuit court’s control over the management of its docket. The record does not indicate that the appellant neglected his case. Rather, it establishes that, despite several continuances, the parties continued to conduct and exchange discovery. The State argues that it would not have had time to respond to the Second Amended Petition before the evidentiary hearing and that another continuance might have been required. However, the only substantive changes were in paragraph 105 of his Second Amended Petition. As is set forth above, the State was already aware of the additional information that was included in the Second Amended Petition. Therefore, it could have easily filed a response to the Second Amended Petition, and there would not have been any reason for any further delay of the evidentia-ry hearing. Accordingly, consideration of the Second Amended Petition would not have caused undue delay.
“Smith, 961 So.2d at 927-28.”

987 So.2d at 634-639 (internal footnotes omitted).

Based on the cases cited herein and the particular circumstances of this case, we conclude that the circuit court erred in denying Anderson’s first motion for leave to amend his petition. In denying the motion, the circuit court did not cite undue prejudice or undue delay as reasons for denying Anderson’s motion for leave to amend. In fact, the record in this case does not indicate that the granting of the motion to amend would have caused undue delay or undue prejudice. Here, the motion for leave to amend was filed less than a month after the petitioner filed his petition and before the State had responded to the petition. Thus, we cannot say that allowing Anderson to amend his petition would have unduly delayed the proceedings.

Based on the foregoing, we must reverse the circuit court’s judgment and remand this cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and BURKE, J., concur.

JOINER, J., concurs in the result, with opinion, which KELLUM, J., joins.

JOINER, Judge,

concurring in the result.

I concur in the result. As the main opinion holds, because “the circuit court did not cite undue prejudice or undue delay as reasons for denying [Michael Dewayne] Anderson’s motion for leave to amend,” the judgment of the circuit court is due to be reversed under Ex “parte Rhone, 900 So.2d 455 (Ala.2004), and its progeny. Although I agree that the rule from those cases requires reversal here, I believe that an exception is warranted for cases such as Anderson’s. Anderson has had 12 opportunities to present claims for postconviction relief, and his proposed amendments involve claims that appear to be without merit or insufficiently pleaded. I question the practicality and efficiency of a rule that requires reversal under these circumstances simply because the circuit court did not recite thaumaturgic words in denying Anderson’s motion for leave to amend.

KELLUM, J., concurs.

      . Anderson filed his first Rule 32 petition in 1998. After an evidentiary hearing, the circuit court denied the petition, and this Court affirmed that denial on appeal, without an opinion. Anderson v. State, (No. CR-98-1136) 778 So.2d 876 (Ala.Crim.App.1999) (table). Anderson filed his second petition in 1999, his third petition in 2000, and his fourth petition in 2001. The circuit court summarily dismissed all of those petitions, and this Court affirmed those dismissals on appeal, without an opinion. Anderson v. State, (No. CR-99-0910) 810 So.2d 815 (Ala.Crim.App.2000); (No. CR-00-0664) 836 So.2d 1006 (Ala.Crim.App.2001); and (No. CR-01-0666) 854 So.2d 1228 (Ala.Crim.App.2002) (tables). Anderson filed his fifth petition in 2001. The circuit court again summarily dismissed the petition, but Anderson did not appeal that dismissal. Anderson filed his sixth and seventh petitions in 2002. The circuit court summarily dismissed both of those petitions, and this Court affirmed both dismissals on appeal, without opinion. Anderson v. State, (No. CR-02-0001) 876 So.2d 1196 (Ala.Crim.App.2003), and (No. CR-03-0013) 910 So.2d 836 (Ala.Crim.App.2004) (tables). Anderson filed his eighth petition in 2004. The circuit court summarily dismissed the petition, and this Court dismissed the appeal without opinion as untimely filed. Anderson v. State, (No. CR-04-0594) 925 So.2d 1022 (Ala.Crim.App.2005) (table). Anderson filed his ninth petition in 2005. The circuit court summarily dismissed that petition, but Anderson did not appeal the dismissal. Anderson filed his 10th petition in 2007. The circuit court summarily dismissed that petition, and this Court dismissed Anderson's appeal for failure to file a brief. Anderson v. State, (No. CR-07-0459) 21 So.3d 806 (Ala.Crim.App.2008) (table). Anderson filed his 11th petition in 2010. The circuit court denied the petition, and, after remand, this Court affirmed the denial on appeal, without an opinion. Anderson v. State, (No. CR-11-0072, May 11, 2012) - So.3d - (Ala.Crim.App.2012) (table).