author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    GOODYEAR TIRE & RUBBER COMPANY v. Marvin J. WILSON.
    2110645.
    Court of Civil Appeals of Aabama.
    Dec. 14, 2012.
    Howard B. Warren of Turnbach, Warren, Roberts & Lloyd, P.C., Gadsden, for appellant.
    Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellee.
   THOMPSON, Presiding Judge.

Goodyear Tire & Rubber Company (“Goodyear”) appeals from a judgment requiring it to continue to pay for medical care being provided to Marvin J. Wilson to treat his lower-back pain. In the judgment, the trial court found that Wilson’s back pain is caused, at least in part, by a lumbar back strain Wilson suffered in 1986, while he was employed by Goodyear.

The record indicates the following. Wilson began working for Goodyear in 1965. In October 1986, he suffered an injury to his back while at work. In 1987, Wilson filed a claim for workers’ compensation benefits. That claim was eventually set-tied. As part of the settlement, Goodyear agreed to pay for future medical treatment of the work-related injury.

When Wilson sustained his back injury, Goodyear sent him to Dr. Carville Woo-dall, who referred him to Dr. Cornelius Thomas, a rheumatologist, in December 1987. Dr. Thomas, who was Wilson’s authorized physician, testified by deposition that he has been treating Wilson for his back pain from time to time since 1987. On Wilson’s first visit to Dr. Thomas’s office, he was diagnosed with a lumbar strain, which was primarily a muscular issue, according to Dr. Thomas. At that time, Wilson also had mild arthritis and a small amount of degenerative lumbar spinal disease. Dr. Thomas said that the presence of the degenerative disease was noted in about half of people Wilson’s age, which, at the time, was 48. Dr. Thomas prescribed muscle relaxers and pain medication for Wilson and recommended a walking program for him. Wilson continued to see Dr. Thomas for treatment. In January 1988, Wilson reported to Dr. Thomas that he had begun walking regularly and that his back symptoms were improving. By March 1988, Dr. Thomas had allowed Wilson to return to work at Goodyear, but Wilson was restricted to lifting no more than 50 pounds. The weight restriction was raised to 75 pounds in 1990.

In July 1988, Wilson told Dr. Thomas that his job did not cause stress to his back; however, Wilson told Dr. Thompson that his back hurt him after he had spent a long time picking tomatoes. During the first Gulf War in 1991, Wilson, who was in the National Guard, was called to duty and stationed in Fort Hood, Texas. On Wilson’s return from Fort Hood, Dr. Thomas testified, he continued to see Wilson as a patient. Dr. Thomas’s office notes indicate that, in May 1993, he saw Wilson for “inflammatory changes,” but; Dr. Thomas said, those changes were not related to the lumbar strain.' The inflammation was primarily in Wilson’s ankle, toe, and knee joints. Dr. Thomas testified that, in late 1993 and early 1994, he diagnosed Wilson with seronegative rheumatoid arthritis, which is rheumatoid arthritis but which results in a negative blood test for the disorder. About one quarter of people suffering from rheumatoid arthritis are seronegative, Dr. Thomas said.

In 1994, Wilson retired from Goodyear. Dr. Thomas said that being less active physically was easier on Wilson’s joints. Nonetheless, Wilson required arthroscopic knee surgery. In addition to the serone-gative rheumatoid arthritis, Dr. Thomas said, Wilson also had polyarthritis at that time. Dr. Thomas prescribed Naproxen and Flexeril for Wilson. He said that the Flexeril was for Wilson’s back pain, and the Naproxen did “double duty” for the rheumatoid arthritis in his joints as well as for back pain.

From September 1995 until mid-March 2003, Wilson worked as a truck driver for a Gadsden automobile dealership. In that job, Wilson worked 40 hours a week, making pick ups and deliveries of vehicles to Atlanta, Little Rock, and Chicago. Wilson also worked as a tour-bus driver for a company based in Birmingham and as a driver for “dial-a-ride.” Dr. Thomas said that people can have flare-ups of back issues when they drive for long periods.

Dr. Thomas’s notes reflect that he did not see Wilson from September 1998 until July 2003. The office notes from August 12, 2003, assessed Wilson with “degenerative lumbar spine disease with prior strain.” Dr. Thomas testified that he worded the assessment in that manner because he thought, “at that time, that the degenerative component was taking over as the predominant factor” as the cause of the discomfort in Wilson’s lumbar spine. X-rays taken of Wilson’s back in 2004 indicate that the degenerative lumbar disease had grown worse since Dr. Thomas began seeing him in 1987. In addition, Dr. Thomas prescribed Lortab for Wilson to use for either his arthritis or the degenerative-back-pain issues, “whatever was bothering him more at the time.”

In June 2007, Dr. Thomas noted in his assessment of Wilson that he was experiencing “mechanical back pain.” Dr. Thomas explained, “There’s a kind of arthritis in which people get inflammation of the back called ankylosing spondylitis in which one gets inflammation of the back, and mechanical refers to the other group of conditions, which would include trauma, or sprain, or degenerative arthritis.” Dr. Thomas’s note of August 2, 2010, indicates that Wilson had osteoarthritis in his lumbar spine. Dr. Thomas testified that osteoarthritis was degenerative arthritis that develops over time.

On July 18, 2011, in Dr. Thomas’s last assessment of Wilson before his deposition, he said that Wilson was experiencing worsening pain from degenerative arthritis. When Dr. Thomas was asked whether, on July 26, 2011, the day of Dr. Thomas’s deposition, Wilson’s complaints of back pain were originating not from the lumbar strain that occurred in 1986 but from the degenerative arthritis in the lumbar spine, Dr. Thomas said, “That seems likely.”

On cross-examination, the following discussion took place between Wilson’s attorney and Dr. Thomas.

“Q. [By Wilson’s attorney]: Would it be fair that it is more probable than not, that means just basically if you’ve got the scales of justice, it tilts only a little bit, but that given the chronic nature of the problems associated with the strain that we saw throughout the decade — the remaining decade of the ’80s, the entire decade of the ’90s, and the symptom complex as it continues today, that the lumbar strain that manifested itself for a period of over a decade continues to play, at least to some degree, a role in the symptoms that are confronting Mr. Wilson today?
“A. [By Dr. Thomas]: That’s hard to answer. It’s been a long time. I would think most of his symptoms now are from degenerative arthritis.
“Q.: I understand that. Would it be fair — in your reasonable judgment, would it be fair to say that the lumbar strain is at least a contributing factor to some degree, although it may not be certainly the predominant factor, is a contributing factor to his ongoing and continuing symptoms as they have existed over the last 20 years?
“A.: It’s hard to say it’s not contributing to some extent, but as I said, the predominant contributor would be degenerative arthritis.
“Q.: The predominate contributor would be the degenerative arthritis, but certainly would it be fair to say that a component of contributions is more likely — given what we know about Mr. Wilson and given your documentation, a component continues to be the lumbar strain?
“A.: It’s just — again, I say it’s hard to say. It sounds like most of it is degenerative arthritis. Whether there’s one percent or five percent or zero percent strain is hard to say.
“Q.: Would it be reasonable to expect that there is something more than zero percent that’s participating or contributing?
“A.: I can’t answer that.”

When Wilson’s attorney continued to press Dr. Thomas about whether it was possible that the lumbar strain Wilson experienced in 1986 could have contributed to the degenerative arthritis, Dr. Thomas said it was “possible,” but he would not “go beyond possible.” He did state, however, that the seronegative polyarthritis, or rheumatoid arthritis, that Wilson had in his joints was not playing a role in Wilson’s back pain.

Wilson testified that he has back pain every day and that when he was not being seen by Dr. Thomas, he was being seen by another doctor for back pain. Goodyear paid for Wilson’s treatment until January 2009. In 2009, Goodyear closed its medical clinic, where Wilson received his medication. When the clinic closed, Wilson was told he had to contact “Progressive Medical” to obtain a “number” to have his prescriptions filled. Wilson said that Progressive Medical referred him to Liberty Mutual, who told him to call Progressive Medical. Wilson said that, after January 2009, he was never able to receive authorization from Goodyear for his medications.

In its judgment, the trial court found that Wilson’s 1986 lumbar strain “does continue to contribute to the symptom complex requiring interventional care that has historically been accepted by Goodyear and provided by Dr. ... Thomas.” Specifically, the trial court found that, although the lumbar strain was not the sole cause of Wilson’s back pain, it was a contributing cause. Accordingly, the trial court ordered Goodyear to continue to pay for the care and medications Wilson needed to treat his ongoing back pain. Goodyear filed a postjudgment motion, which the trial court denied. Goodyear timely appealed.

In their briefs on appeal, the parties disagree as to who bears the burden of proving that Thomas is entitled to have Goodyear pay for his continued treatment. Goodyear argues that, because Wilson is seeking medical benefits for a condition that he says was caused by a work-related injury, Wilson bears the burden of establishing that his current back pain is related to the 1986 injury. On the other hand, Wilson argues that, because Goodyear accepted the responsibility of paying for the care and medications necessary for the treatment of his back injury, it now bears the burden of proving that it no longer has to continue to pay for Wilson’s medical treatment.

The record indicates that, at the beginning of the trial in this case, Wilson’s attorney asserted that Goodyear bore the burden of proof in this case. The trial court then asked Goodyear’s attorney whether there was “a position you would like to state before we start in regards to the burden associated with this.” Goodyear’s attorney responded with a statement regarding which party would call a certain witness. That witness was then called and the trial went forward without Goodyear making a statement about which party bore the burden of proof. In the trial court’s judgment, it stated that Goodyear had the burden of proof in this case; in fact, it stated twice that Goodyear bore the burden of proof. In Goodyear’s post-judgment motion, however, Goodyear failed to assert that the trial court had improperly shifted the burden of proof to it. Further, at the hearing on the post-judgment motion, Wilson’s attorney again argued that Goodyear bore the burden of proof, adding, “And I think that that frankly at the end of the day may have tipped the scale in this case.” Wilson’s attorney closed by saying he did not think that Goodyear had sustained its burden. The trial court then asked to go off the record, and the trial was ended without anything further being put on the record. Based on the record before us, we conclude that, during the trial of this case, the parties proceeded as though Goodyear bore the burden of proof and that Goodyear never made an assertion to the contrary to the trial court.

“This court will not hold a trial court in error ‘unless that court has been apprised of its alleged error and has been given the opportunity to act thereon.’ Sea Calm Shipping Co. v. Cooks, 565 So.2d 212, 216 (Ala.1990).” Greener v. Killough, 1 So.3d 93, 101 (Ala.Civ.App.2008). Because Goodyear never argued to the trial court that Wilson bore the burden of proof in this case, we must analyze the evidence using the burden of proof used by the trial court.

Ordinarily, an employee must prove, by a preponderance of the evidence, that the complaint for which he or she seeks medical treatment arose out of and in the course of his or her employment. Because Goodyear failed to argue otherwise, however, the parties tried this case in a manner that required Goodyear to prove, by a preponderance of the evidence, that the complaints for which Wilson was seeking treatment from Dr. Thomas were not caused by the 1986 lumbar strain he suffered during his employment with Goodyear. Therefore, our task is to determine whether the trial court’s determination that Wilson’s current complaints of back pain “continue[d] to be related” to the 1986 injury for which Goodyear had accepted responsibility is supported by substantial evidence, as required by § 25-5-81 (e), Ala. Code 1975.

Section 25-5-81(e), Ala.Code 1975, provides the standard by which this court reviews appeals in cases arising under the Act. That section provides:

“(e) Review. From an order or judgment, any aggrieved party may, within 42 days thereafter, appeal to the Court of Civil Appeals and review shall be as in cases reviewed as follows:
“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

Discussing this standard, this court wrote in Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala.Civ.App.2005):

“When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81 (e)(2), Ala.Code 1975. Substantial evidence is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Further, this court reviews the facts ‘in the light most favorable to the findings of the trial court.’ Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ.App.1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996). This court has also concluded: ‘The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.’ Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (AIa.Civ.App.1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App.2002) (citing § 25-5-81(e)(l), Ala.Code 1975).”

In its judgment, the trial court found that Wilson’s degenerative arthritis in the lumbar spine “clearly plays a role in [Wilson’s] symptom complex.” The trial court stated:

“However, as Dr. Thomas candidly acknowledges in his deposition, it would be difficult to completely rule out the work-related injury and the lumbar spine as contributing in some measure to the condition giving rise to [Wilson’s] symptoms. This concession by Dr. Thomas is significant given the burden that rests with Goodyear in this case. In fact, when presented with an overview of the facts of this case, the doctor admitted that it was reasonable to assume that some of Wilson’s symptoms continue to be related to the accepted injury.”

(Emphasis added.)

The evidence in this case indicates that Dr. Thomas was reluctant to attribute a portion of Wilson’s current back pain to the 1986 lumbar strain. When asked whether it would “be reasonable to expect that there is something more than zero percent that’s participating or contributing” to Wilson’s back pain, Dr. Thomas said, “I can’t answer that.” Dr. Thomas also stated that he believed it “likely” that Wilson’s complaints of back pain originated, not from the 1986 lumbar strain, but from the degenerative arthritis. When asked whether it was reasonable to assume that some of Wilson’s back complaints were related to the 1986 injury, Dr. Thomas stated, “[A]gain, I say it’s hard to say. It sounds like most of it is degenerative arthritis. Whether there’s one percent or five percent or zero percent strain is hard to say.” We conclude that Dr. Thomas’s equivocal response provides evidence only of a mere possibility that Wilson’s current back pain relates to the 1986 injury. From the record before us, a determination that Wilson’s 25-year-old back strain is a contributing factor to his current back complaints would be based on Dr. Thomas’s speculation that, although those complaints may be based on the 1986 strain, it is far more likely that they are the result of Wilson’s degenerative arthritis. We agree with Goodyear that the trial court’s finding that the 1986 lumbar strain is the cause of Wilson’s current back condition for which Dr. Thomas is treating him is not supported by substantial evidence. Accordingly, we conclude that the trial court’s judgment improperly requires Goodyear to continue to pay for the care and medication Wilson is receiving from Dr. Thomas and to reimburse Wilson for the out-of-pocket expenses at issue, which total $146.70.

For the reasons set forth above, we reverse the trial court’s judgment and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

MOORE, J., dissents, with writing, which BRYAN, J., joins.

MOORE, Judge,

dissenting.

I respectfully dissent from the main opinion’s reversal of the trial court’s judgment because I conclude that, under the peculiar procedural posture of this case, Goodyear Tire & Rubber Company (“the employer”) did not discharge its burden of proof.

Although the law generally requires an employee seeking medical benefits to prove his or her entitlement thereto, see Ex parte Publix Super Markets, Inc., 963 So.2d 654 (Ala.Civ.App.2007), the parties tried the case on the theory that the employer bore the burden of disproving that the current treatment Marvin J. Wilson (“the employee”) was receiving for his back condition was unrelated to a compen-sable back injury that he sustained in 1986. As such, the employer had to prove by a preponderance of the evidence that the 1986 back injury did not contribute even slightly to the employee’s current back problems requiring medical attention. Ex parte Valdez, 686 So.2d 401 (Ala.1994), on remand, 636 So.2d 407 (Ala.Civ.App.1994). Before declining to place a percentage on the contribution of the 1986 back injury to the employee’s current back problems, Dr. Cornelius Thomas testified that “most of [the employee’s] symptoms now are from degenerative arthritis” and that “it’s hard to say that [the employee’s 1986 back strain is] not contributing [to the present back problems] to some extent.” If the employee bore the burden of proving medical causation, I believe that evidence would have been sufficient to discharge that burden under our established precedent. See 1 Terry A. Moore, Alabama Workers’ Compensation § 7:19 nn. 68-74 (West 1998). Given that, in this unusual case, the burden rested on the employer to prove that the 1986 injury was not contributing to the employee’s current medical problems, I must conclude that the same testimony has to be considered substantial evidence supporting a finding that the employer did not disprove medical causation. Therefore, I would affirm the trial court’s judgment.

BRYAN, J., concurs.

      . After retiring from Goodyear, Wilson was treated for neck pain and he had a knee replacement, in addition to receiving continued treatment for his back pain.


source: Caselaw Access Project

author: PER CURIAM. WISE, Presiding Judge, KELLUM, Judge,

license: Public Domain

text:
    James Beauford LAMB, Jr. v. STATE of Alabama.
    CR-08-1682.
    Court of Criminal Appeals of Alabama.
    June 25, 2010.
    Rehearing Denied Aug. 20, 2010.

      James Beauford Lamb, Jr., pro se.
    Troy King and Luther Strange, attys. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, James Beauford Lamb, Jr., appeals the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. In 2004, Lamb was convicted of rape in the first degree and sexual abuse in the first degree and was sentenced to 20 years’ imprisonment on the rape conviction and to 10 years’ imprisonment on the sexual-abuse conviction. We affirmed his convictions on August 12, 2005, by an unpublished memorandum, Lamb v. State (No. CR-04-0665), 945 So.2d 1098 (Ala.Crim.App.2005) (table), and issued the certificate of judgment on August 31, 2005.

In June 2008, Lamb filed the underlying Rule 32 petition attacking his convictions. The State asserted in its motion to dismiss that Lamb’s petition was procedurally barred by Rules 82.2(a)(3), (a)(5), and (b), Ala. R.Crim. P. The circuit court summarily dismissed Lamb’s petition; this appeal followed.

The only argument Lamb raises on appeal is that the unanimous “not-guilty” verdict on the verdict form for his sexual-abuse conviction, count II of the indictment, was erroneously changed by seven members of the jury after the jury had been discharged and that the circuit court; therefore, lacked jurisdiction to render a judgment or to impose sentence on that count of the indictment.

Lamb was charged in a four-count indictment: Count I charged Lamb with the first-degree rape of J.M.; count II charged Lamb with the first-degree sexual abuse of J.M.; count III charged Lamb with incest with respect to J.M.; and count IV charged Lamb with the second-degree sexual abuse of KM. When the jury retired, the circuit court sent four verdict forms with them — one for each count of the indictment. Each verdict form had two options — guilty as charged in the indictment or not guilty as charged in the indictment, and under each option was a signature line for the jury foreman to sign designating the verdict. Although the verdict forms included the charge and the count in the indictment, they did not include the name of the victim.

When the jury returned its verdicts, the jury foreman orally announced guilty verdicts on counts I, II, and III. When the circuit court asked for a verdict on count IV, the foreman stated that he had signed the wrong designation on this verdict form. The circuit court instructed the jury to return to the jury room to correct this error. When the jury returned, the foreman orally announced a “not-guilty” verdict on count IV. The circuit court then polled the jury as to each of the counts on which it had found Lamb guilty. Each juror affirmed that he or she had found Lamb guilty on counts I, II, and III. The jury was then discharged.

When the circuit court proceeded to formally adjudicate guilt, it noticed that the verdict form for count II — the first-degree sexual abuse of J.M. — was signed by the jury foreman as “not guilty” — as opposed to what the foreman had orally announced in open court — “guilty.”

The trial court reassembled the jury but was able to locate only 7 of the 12 members, one of whom was the foreman. The circuit court asked the seven jurors to correct the verdict for count II of the indictment. After some discussion, the foreman indicated that the jury’s verdicts were guilty as to counts I, II, and III, and not guilty as to Count IV. At the circuit court’s direction, the foreman changed the verdict form for count II to read “guilty.” (R. 400.)

The dispositive issue on appeal is whether the circuit court1 had the authority to direct the jury foreman to correct the mistake in filling out the verdict form for count II.

“Alabama cases dating back to 1841 hold the jury may amend its verdict at any time before their discharge and separation.” Smith v. State, 54 Ala.App. 722, 312 So.2d 414, 416-17 (1975). However, Rule 29, Ala. R.Crim. P., allows a court to correct a clerical error at any time. Rule 29, Ala. R.Crim. P., states, in pertinent part:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

The Alabama Supreme Court has explained that Rule 29, Ala. R.Crim. P, was “taken directly from Rule 60(a), Ala. R. Civ. P.[; therefore,] cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29.” Dollar v. State, 687 So.2d 209, 210 (Ala.1996) (citing H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 919 (2d ed. 1994)). See also Rule 60(a), Fed.R.Civ.P.;. Rule 86, Fed R.Crim. P. “‘The term “clerical errors” [under Rule 60(a) ] is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as a jury foreman, counsel, a party, or the judge himself.’” Dollar, 687 So.2d at 210 (quoting Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala.l979))(emphasis omitted).

“The object of a Rule 60(a)[, Ala. R. Civ. P.,] [or a Rule 29, Ala. R.Crim. P.,] motion ... is to make the judgment or the record speak the truth.” BMJA, LLC v. Murphy, 41 So.3d 751, 756 (Ala.2010). Accordingly, Rule 29, Ala. R.Crim. P., and Rule 60(a), Ala. R. Civ. P., do “not authorize the court to render a different judgment.” Cornelius v. Green, 521 So.2d 942, 945 (Ala.1988) (citation omitted and emphasis added). These rules do, however, authorize the court to correct a clerical error in the record to accurately reflect the judgment that was rendered, i.e., to speak the truth. See Deramus Hearing Aid Ctr., Inc. v. American Hearing Aid Assocs., Inc., 950 So.2d 292, 295 (Ala.2006) (holding that Rule 60(a), Ala. R. Civ. P., authorized the circuit court to alter its order entering a summary judgment for Deramus and to change the order to enter a summary judgment for American Hearing because the judge had originally intended to enter a summary judgment for American Hearing). Consequently, the distinction between correcting a clerical mistake or error and rendering a different judgment is critical to determining whether the circuit court here had jurisdiction to correct the jury foreman’s mistake.

The Alabama Supreme Court has explained that a clerical mistake or error is “ ‘[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.’” Deramus Hearing Aid Ctr., Inc., 950 So.2d at 294 (quoting Black’s Law Dictionary 582 (8th ed. 2004)). Rendering a different judgment, on the other hand, involves reweighing the evidence, exercising judicial reasoning, and reaching a different result. Deramus Hearing Aid Ctr., Inc., 950 So.2d at 295. That is, a different judgment is rendered when the circuit court’s action “extend[s] to matters of substance required to be passed upon by a jury.” Great Atlantic & Pac. Tea Co. v. Sealy, 374 So.2d 877, 883 (Ala.1979) (citing Hood v. Ham, 342 So.2d 1317 (Ala. 1977)). See also Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 216 (Ala.2008) (holding that Rule 60(a) “allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry .of the order”; however, it does not permit “[ejorrections involving an exercise of judicial discretion,” or a legal decision). Accordingly, rendering a different judgment involves making a new decision, and correcting a clerical error involves altering the record to reflect accurately a past decision. See Deramus Hearing Aid Ctr., Inc., 950 So.2d at 295. While correcting a clerical error is within the circuit court’s authority under Rule 29, rendering a different judgment is not. Id.

In this case, the record clearly shows that the circuit court corrected a clerical error, as opposed to rendering a different judgment, when it corrected the verdict form relating to count II. At trial, the jury foreman announced that the jury had found Lamb guilty on count II of the indictment. The jury was polled before being dismissed and every juror affirmed that he or she had found Lamb guilty on count II. After the jury had been dismissed, the circuit court noticed that the jury foreman had marked “not guilty” on the verdict form for count II. Seven jurors, including the foreman, were summoned back to the courtroom. At that point, the foreman informed the circuit court that the jury had unanimously found Lamb guilty on count II. He further explained that he had confused the verdict forms for counts two and four and had inadvertently marked “not guilty” on count II instead of Count IV. The circuit court then allowed the foreman to correct his mistake.

At no point was the evidence reweighed, discretion exercised, or a new decision rendered. Neither the circuit court nor the jurors reconsidered a question that had already been decided by the jury. Instead, the circuit court accepted evidence establishing the jury’s past verdict on count II and corrected the verdict form to accurately reflect that verdict, i.e., to speak the truth. See United States v. Stauffer, 922 F.2d 508, 514 (9th Cir.1990) (holding that Rule 36, Fed R.Crim. P. (the federal counterpart to Rule 29, Ala. R.Crim. P.), authorized the district court to correct the verdict form after the jury had been dismissed because “[t]he district court did not alter the jury’s verdict itself; it simply corrected the verdict form to reflect the jury’s true intent”); see Committee Comments to Rule 29, Ala. R.Crim. P. (“While the rule is intended to deal solely with correction of clerical errors and not judicial errors in the rendition of judgments and orders, evidence outside the record ... may be received and considered.”). Because the circuit court did not alter the jury’s verdict itself but simply corrected the verdict form to reflect the jury’s past decision and true intent, its action was authorized pursuant to Rule 29, Ala. R.Crim. P.

The United States Court of Appeals for the Ninth Circuit reached the identical conclusion in United States v. Stauffer, supra, when considering Rule 36, Fed. R.Crim.P., the federal counterpart to Rule 29, Ala. R.Crim. P. In Stauffer, the jury-foreman inadvertently marked on the verdict forms that Stauffer was guilty on count II and not guilty on count IV. After the jury was dismissed, postverdict interviews revealed that the jury had actually acquitted Stauffer on count II and found him guilty on count IV. The district court then corrected the verdict forms to reflect the jury’s true intent.

On appeal, Stauffer argued that the original verdict form finding him not guilty on count IV constituted an acquittal; therefore, he argued, correcting the verdict form violated the Double Jeopardy Clause of the Fifth Amendment. 922 F.2d at 518. The Ninth Circuit rejected Stauf-fer’s argument that the erroneous verdict form constituted an acquittal and reasoned:

“The district court did not alter the jury’s verdict itself; it simply corrected the verdict form to reflect the jury’s true intent.... Despite Stauffer’s admirable effort to persuade this Court that his right to be free from double jeopardy has been violated, the facts do not support a conclusion that the double jeopardy clause has been compromised in this case.”

922 F.2d at 514. Like Stauffer, the jury foreman’s inadvertent mistake when filling out the verdict form for count II did not constitute an acquittal. Instead, it was a clerical error that was properly corrected-pursuant to Rule 29, Ala. R.Crim. P.

Overwhelming evidence established that 12 jurors found Lamb guilty on count II of the indictment and that the jury foreman inadvertently marked the verdict form for count II “not guilty.” Upon learning of the foreman’s clerical mistake, the circuit court did not reweigh the evidence, reconsider the case, or exercise judicial reasoning. Deramus Hearing Aid Ctr., Inc., 950 So.2d at 294. Nor did the circuit court “alter the jury’s verdict itself; [instead,] it simply corrected the verdict form to reflect the jury’s true intent.” Stauffer, 922 F.2d at 514. Because the circuit court merely corrected the foreman’s clerical mistake, the circuit court’s action was authorized by Rule 29, Ala. R.Crim. P., and the circuit court did not lack jurisdiction to enter a judgment based on the corrected verdict form. Consequently, Lamb’s post-conviction claim was correctly dismissed because it was nonjurisdictional and procedurally barred pursuant to Rules 32.2(a)(5) and 32.2(b), Ala. R.Crim. P.

For the foregoing reasons, we conclude that the circuit court correctly summarily dismissed Lamb’s Rule 32 petition.

AFFIRMED.

WINDOM and MAIN, JJ., concur. WISE, P.J., concurs in the result, with opinion. KELLUM, J., dissents, with opinion, joined by WELCH, J.

WISE, Presiding Judge,

concurring in the result.

I agree with the conclusions in the main opinion that the circuit court merely corrected the foreman’s clerical mistake; that the circuit court’s action was authorized pursuant to Rule 29, Ala. R.Crim. P.; and that it did not lack jurisdiction to enter judgment based on the corrected verdict form. However, I do not agree with the majority’s conclusion that the claim is non-jurisdictional and procedurally barred pursuant to Rules 32.2(a)(5) and 32.2(b), Ala. R.Crim. P. Rather, I believe that the claim, if meritorious, would be jurisdictional. Therefore, I respectfully concur in the result.

KELLUM, Judge,

dissenting.

Because I believe that the circuit court did not merely correct a “clerical error” when it directed the jury foreman to change the verdict form for count II from “not guilty” to “guilty” after the jury had been discharged, I respectfully dissent from the majority’s decision to affirm the circuit court’s summary dismissal of Lamb’s Rule 32, Ala. R.Crim. P., petition.

“Generally, a jury has the right to correct, amend, or change its verdict at any time before rendering its decision to the court, and the court has the power and duty to return the jury to correct a mistake before accepting the verdict and discharging the jury.”

Annot., Criminal Law: Propriety of Reassembling Jury to Amend, Correct, Clarify, or Otherwise Change Verdict After Jury has been Discharged, or has Reached or Sealed its Verdict and Separated, 14 A.L.R.5th 89 (1993). See Cunningham v. State, 14 Ala.App. 1, 8-9, 69 So. 982, 985 (1915), reversed on other grounds, McIntosh v. State, 33 Ala.App. 534, 36 So.2d 109 (1948) (“Nor was there error in the court’s allowing the verdict to be completed and verified by the jury as their verdict after it had been read by the clerk, when it appears that the jury, although discharged, was called back by the court for the purpose of completing the verdict before leaving the courtroom.”); Cook v. State, 60 Ala. 39 (1877) (“The jury, in the present case, were discharged, and had dispersed among the audience in the court-house and person outside. It would be a dangerous precedent, to hold that, after this, the persons who composed that jury could be reassembled as such to render a verdict in a case of which they had been thus discharged.”).

In this case, before a verdict for count IV was entered on the record, the foreman brought the mistake on the verdict form to the circuit court’s attention, and the court correctly allowed the jury to retire to the jury room to correct this error.

“When the jury return into court with a verdict, it is not a matter of course to receive it in the form in which it is rendered. It is the duty of the court, and of the prosecuting officer, to look after its form and substance, so far as to prevent an unintelligible, or a doubtful, or an insufficient verdict from passing into the records of the court, to create embarrassments afterward and perhaps the necessity of a new trial.”

Allen v. State, 52 Ala. 391 (1875). See also Bentley v. State, 20 Ala.App. 635, 104 So. 679 (1925).

Nonetheless, in attempting to correct the discrepancy as to count II, the court reconvened, in part, a jury that had been discharged by the circuit court. “Alabama cases dating back to 1841 hold that the jury may amend its verdict at any time before their discharge and separation.” Smith v. State, 54 Ala.App. 722, 725, 312 So.2d 414, 416-17 (1975). See State v. Underwood, 2 Ala. 744 (1841). However,

“[w]hen a jury has been discharged by the court and has left the courtroom so as to place themselves beyond the immediate, continuous control of the court, their connection with the case ceases to exist and thereafter that case is beyond their control.”

Hayes v. State, 44 Ala.App. 499, 501-02, 214 So.2d 708, 710 (1968). The circuit court could not amend the verdict form after the jury had been discharged and after the jurors had placed themselves beyond the “control of the court.”

Moreover, the oral verdict of “guilty” that was announced in open court did not take precedence over the written verdict of “not guilty.”

“Although a verdict may be written or oral, where there is both a written and oral verdict, it is necessary that each be in accord with the other. If any incon-sistence or ambiguity exists in the verdict, it must be corrected prior to the dismissal of the jury and failure to do so, as in the instant case, will result in a reversal of the case upon trial.”

Hayes, 44 Ala.App. at 502, 214 So.2d at 711. See also Petitti v. State, 2 Okla.Crim. 131, 100 P. 1122, 1124 (1909) (“The written verdict of not guilty returned into court by the jury could not be impeached or contradicted by the testimony of the persons who constituted the jury, as was done in this case, and that after the discharge of the jury this verdict became final and conclusive upon the state”).

While I recognize that Rule 29, Ala. R.Crim. P., allows a circuit court to correct a clerical error in a judgment at any time, changing a verdict form from “not guilty” to “guilty” is beyond the scope of Rule 29, Ala. R.Crim. P. Rule 29, Ala. R.Crim. P., states, in pertinent part:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court.”

The Alabama Supreme Court has liberally construed the scope of Rule 29, Ala. R.Crim. P., and relied on cases interpreting the civil counterpart, Rule 60(a), Ala. R. Civ. P. See Dollar v. State, 687 So.2d 209 (Ala.1996). In Dollar, the Supreme Court stated:

“The committee comments to Rule 29 state that Rule 29 is taken directly from Rule 60(a), Ala. R. Civ. P. Because Rule 29 is taken directly from Rule 60(a), Ala. R. Civ. P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29. See H. Maddox, Alabama Rules of Criminal Procedure, § 29.1, p. 919 (2d ed. 1994).
“In Cooper v. Cooper, 494 So.2d 109 (Ala.Civ.App.1986), a divorce judgment divided the parties’ assets; in that judgment the husband received a 1977 Chevrolet automobile the court had intended to award to the wife. The wife, more than 30 days after the entry of the divorce judgment, filed a motion pursuant to Rule 60(a), Ala. R. Civ. P., asking that the final judgment be interpreted so as to give her ownership of the 1977 Chevrolet. The trial court thereafter amended the judgment to award the Chevrolet to the wife. On appeal of that amending order, the Court of Civil Appeals held that the error was correctable either on a motion of a party or on the trial court’s own initiative, under Rule 60(a). See also, Antepenko v. Antepenko, 584 So.2d 836 (Ala.Civ.App.1991) (the trial court did not err in granting a husband’s Rule 60(a) motion to amend a divorce judgment to reflect that certain farm equipment was not intended to be covered in a previous order dividing the parties’ personal property).
“In Continental Oil Co. v. Williams, 370 So.2d 953 (Ala.1979), this Court held that an action of a trial judge, who stated in an order that he had intended to grant the plaintiffs motion to dismiss its claims, but had not done so through oversight or omission, was within the scope of Rule 60(a). In so holding, this Court stated:
“ ‘The term “clerical errors” [under Rule 60(a) ] is not limited solely to errors by the clerk in transcription. It can also include errors by others, such as a jury foreman, counsel, a party, or the judge himself’
370 So.2d at 954. (Emphasis added.) See also, Ward v. Ullery, 442 So.2d 99, 101 (Ala.Civ.App.1983) (a judgment, because of a clerical error, stated that it was against ‘defendant’ and not ‘defendants’; the trial court properly amended its judgment under Rule 60(a), Ala. R. Civ. P, to specify that the judgment had been entered against both defendants).”

687 So.2d at 210. However, this Court has also held that “ ‘[w]hile [Rule 60(a), Ala. R. Civ. P.,] authorizes a court to amend a judgment to correct a clerical error, [it] does not authorize the court to render a different judgment.’ Mullins v. Mullins, 770 So.2d 624, 625 (Ala.Civ.App.2000).” Woodward v. State, 3 So.3d 941, 949 (Ala. Crim.App.2008).

“The committee comments to Rule 60(a) state:

“‘This subdivision deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ ”

Cornelius v. Green, 521 So.2d 942, 945 (Ala.1988). “A trial court only has authority to amend a jury verdict regarding matters of form or clerical error; this does not extend to matters of substance required to be passed upon by a jury.” Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 883 (Ala.1979). Certainly, a finding of guilt or innocence is a matter of substance outside the realm of those errors contemplated in Rule 29, Ala. R.Crim. P. In the instant case, Lamb was effectively found guilty of first-degree sexual abuse by a jury of 7— rather than by a jury of 12, as the law requires.

The main opinion relies on United States v. Stauffer, 922 F.2d 508 (9th Cir.1990) — a case relied on by no other jurisdiction. Notably, in Stauffer, during postverdict interviews of several jurors initiated by Stauffer’s counsel, it was discovered that the jury had made a clerical error. The opinion does not affirmatively state whether the jury had been discharged at the time of the disclosure of the clerical error. After discovering the error, the trial court solicited affidavits from the jurors and “[a]ll the jurors attested to the clerical error.” Stauffer, 922 F.2d at 511. The opinion in Stauffer implies that the correction of the verdict form was based on the unanimous agreement of the jurors that the signed verdict form did not reflect their true verdict. In the instant case, unlike in Stauffer, only 7 of the 12 jurors returned to the courtroom to correct the verdict form after being discharged by the trial court.

Further, the issue presented in this case is jurisdictional and, thus, is not subject to the procedural bars contained in Rule 32, Ala. R.Crim. P. A circuit court’s jurisdiction over a case terminates when a jury returns a “not guilty” verdict. “The United States Supreme Court has long recognized the basic legal premise that once a jury returns a ‘not guilty’ verdict all criminal proceedings against the defendant are at an end.” Ex parte Bishop, 883 So.2d 262, 264 (Ala.Crim.App.2003). Rule 26.2, Ala. R.Crim. P., states: “When a defendant is acquitted of any charge, or of any count of any charge, judgment pertaining to that count or to that charge shall be pronounced and entered accordingly.” See State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997) (“[t]he jury having, by its verdict, determined the prisoner not guilty as charged, although it further adjudged him guilty of another crime, the trial court had no jurisdiction to sentence him, hence its attempt in that direction was illegal in such sense that it was void.”).

In my opinion, the main opinion’s reliance on Stauffer is misplaced for two reasons. First, the decision in Stauffer appears to represent what could best be characterized as a “minority” position. See Annot., 14 A.L.R. 5th 89. Second, by electing to follow Stauffer, the main opinion appears to ignore more than a century of Alabama precedent. Accordingly, I have no choice but to dissent from the majority’s decision. However reprehensible Lamb’s conduct, the circuit court could not adjudicate Lamb guilty and sentence him for a conviction for which the jury had returned a “not-guilty” verdict. Therefore, the circuit court’s ruling dismissing Lamb’s Rule 32 petition is due to be reversed and Lamb’s conviction for first-degree sexual abuse vacated.

WELCH, J., concurs.

      . Lamb was also convicted of incest and was sentenced to 10 years on that conviction; however, he did not challenge that conviction or sentence in this Rule 32 petition.

      . This was Lamb’s second Rule 32 petition attacking his convictions. In 2007, the circuit court dismissed Lamb’s first petition. On March 28, 2008, we affirmed the circuit court’s dismissal. See Lamb v. State, 21 So.3d 801 (Ala.Crim.App.2008) (table).

      . This issue was not raised in Lamb’s first Rule 32 petition. We have taken judicial notice of our records for Lamb’s first Rule 32 petition. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App. 1998).

      . To protect the anonymity of the victims, we are using their initials. See Rule 52, Ala. R.App. P.

      . We note that, in its brief on appeal, the State argues that the initial verdict form for count II reflected a guilty verdict, and that the jury erroneously changed that verdict to not guilty when it was sent back to the deliberation room to correct the verdict form for count IV. We have thoroughly reviewed the record from Lamb's direct appeal relating to this issue, and we do not agree with the State’s interpretation of the sequence of events. It is clear that the initial verdict form for count II submitted by the jury reflected a not-guilty verdict, inconsistent with the jury’s oral pronouncement of its verdict on that count.

      .As a result of the error, the verdict form for count IV reflects the foreman’s signature under both the guilty and not-guilty options, with the signature under the guilty option being crossed out and the foreman’s initials appearing next to the crossed-out signature.

      . See also T.D.M. v. State, [Ms. CR-08-0355, June 25, 2010] — So.3d-(Ala.Crim.App. 2010). In T.D.M., the jurors had been discharged but had not yet separated when they corrected the verdict form.

      . The facts that the jury was polled and that every juror affirmed the verdict of guilt on count II is important because this fact distinguishes cases in which only a few jurors presented evidence of the jury's actual verdict.

      . Compare Rule 32(k)(l), Fed.R.Crim.P., which states, in part: "If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order.”


author:
PER CURIAM.
      SHAW, Justice

text:
    Ex parte James Beauford LAMB, Jr. (In re James Beauford Lamb, Jr. v. State of Alabama).
    1091668.
    Supreme Court of Alabama.
    Oct. 28, 2011.

      James Beauford Lamb, Jr., pro se.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   PER CURIAM.

James Beauford Lamb, Jr., filed a petition for a writ of certiorari asking this Court to review the Court of Criminal Appeals’ affirmance of the Tallapoosa Circuit Court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition challenging his 2004 conviction for first-degree sexual abuse and his sentence of 10 years in prison. See Lamb v. State, 113 So.3d 677 (Ala.Crim.App.2010).

This Court granted Lamb’s petition to decide the following issue: Whether the trial court erred in entering a judgment based on an amended written jury verdict resulting from the fact that the polling of the jury reflected a verdict different from the original written jury verdict and arrived at after conferring with seven members of the discharged jury, who had left the presence and control of the court and were recalled. Lamb contends that the Court of Criminal Appeals’ affirmance conflicts with Hayes v. State, 44 Ala.App. 499, 214 So.2d 708 (1968), which held that once the jury has been discharged and has left the court’s control, the jury could not properly be resummoned to correct or amend an insufficient verdict and that the judgment entered on the amended verdict of that recalled jury must be reversed. Because we hold that a conflict does exist and that the rule in Hayes does apply to this case, we reverse the judgment of the Court of Criminal Appeals.

Facts and Procedural History

Lamb was charged in a four-count indictment and his case tried before a jury.

“When the jury returned its verdicts, the jury foreman orally announced guilty verdicts on counts I, II, and III. When the circuit court asked for a verdict on count IV, the foreman stated that he had signed the wrong designation on this verdict form. The circuit court instructed the jury to return to the jury room to correct this error. When the jury returned, the foreman orally announced a ‘not-guilty’ verdict on count IV.”

Lamb v. State, 113 So.3d at 679 (footnotes omitted). The court then proceeded to poll the jury for the record as to its verdict on the three counts on which it had found Lamb guilty. The court polled each juror only once as to all three counts rather than count by count. After polling the jury, the court discharged the jury, and the jurors left the courtroom.

“When the circuit court proceeded to formally adjudicate guilt, it noticed that the verdict form for count II — the first-degree sexual abuse of J.M. — was signed by the jury foreman as ‘not guilty’ — as opposed to what the foreman had orally announced in open court— ‘guilty.’
“The trial court reassembled the jury but was able to locate only 7 of the 12 members, one of whom was the foreman. The circuit court asked the seven jurors to correct the verdict for count II of the indictment. After some discussion, the foreman indicated that the jury’s verdicts were guilty as to counts I, II, and III, and not guilty as to Count IV. At the circuit court’s direction, the foreman changed the verdict form for count II to read ‘guilty.’ ”

Lamb, 113 So.3d at 679-80 (citation to record omitted).

This Court granted certiorari review to determine whether the trial court erred in dismissing Lamb’s Rule 32 petition challenging his conviction, entered on an amended written verdict necessitated by a conflict between a polled verdict and the original written verdict and arrived at by the trial court after conferring with seven members of the discharged jury.

As the trial court was formally adjudicating guilt for each of what it understood to be the three guilty counts, the court stated:

“All right. As to count two — well, it was my understanding that they announced guilty on count two. I thought I saw this in here. I thought I saw it. They’ve got a not guilty signed in count two, and they’ve got — and then they changed the one in count four. This was not — they signed it. We will go on.”

Upon completing the adjudication, the court assembled seven members of the discharged jury, as many members of the jury as could be found remaining in the courthouse; one of those seven was the jury foreman. The court then inquired of the jury foreman:

“THE COURT: Let me just ask for clarification. You’re the foreperson. We’ve got the jury back, some of them. We have got the foreman back in here, primarily. The foreperson.
“Mr. [Foreman], when you announced your verdict on count two, you announced guilty. Okay? However, verdict form number two is signed under the not guilty.
“THE FOREMAN: That’s what happened was I signed that one instead of count four. That’s how that mistake—
“THE COURT: Okay. So is it the understanding, then, the vote was guilty on count two and not guilty on count four?
“THE FOREMAN: That is correct.
“THE COURT: I’m going to let you correct this one, then, for me so that we will have it in proper form.
“THE FOREMAN: I’m sorry, Your Honor. I’ve never done this before.
“THE COURT: That’s all right. No problem at all.
“THE FOREMAN: I think what confused me, Your Honor, was the first and second degree between counts two and four. And that’s where I got confused on it. One is first degree; the other is second degree.
“THE COURT: All right. I understand that, then.
“THE FOREMAN: Okay.
“THE COURT: All right. Now, I note that I was only able to catch seven of the jurors. However, when I polled the jurors for the Record, I asked them pertaining to the three counts that they had found the defendant guilty on, was this their true verdict. And they said that it was. I did not specify the three counts that y’all found him guilty on. That’s correct?
“THE FOREMAN: Yes, sir.”

The record shows that before to being discharged, the jury was polled as to its verdict of guilty on three of the four counts. Further, the record makes clear that only after the jury was discharged did the court read the verdict form for count II, which the jury foreman had signed under the “not guilty” option. In seeking to correct the discrepancy between the oral verdict and the written verdict, the court reconvened seven of the discharged jurors, including the foreman, and corrected the verdict form based upon the testimony of the jury foreman and a re-polling of those seven jurors.

Standard of Review

The operative facts are not disputed; thus, we are presented with a question of law. The standard of review for pure questions of law in criminal cases is de novo. Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003).

Discussion

“Until a jury has been discharged, it is within the power of the trial court to direct it to correct its verdict so as to make it appear in proper form.” Preferred Risk Mut. Ins. Co. v. Stuart, 395 So.2d 980, 986 (Ala.1981) (citing Robert P. Stapp Mach. Co. v. Russell, 277 Ala. 84, 167 So.2d 167 (1964)). In fact, the trial court did just that in this case. When the jury first presented its verdict but before the verdict was placed on the record, the jury foreman informed the court that he had signed the incorrect line on the verdict form for count IV, and the jury was allowed to retire to correct this error. However, despite knowing of the confusion with the four verdict forms, neither the court nor counsel read the verdict forms contemporaneously with the polling of the jury or before the jury was discharged.

“It is ... clear under our authorities that the discharge of the jury by the trial court ends their consideration of the case.” Preferred Risk, 395 So.2d at 986 (citing St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882)). This Court has stated:

“It is the duty of the [trial] court, and of the prosecuting officer, to look after its form and substance, so far as to prevent an unintelligible, or a doubtful, or an insufficient verdict from passing into the records of the court, to create embarrassments afterward and perhaps the necessity of a new trial.”

Allen v. State, 52 Ala. 391, 392 (1875). In this case, the verdict forms were not reviewed before the jury was discharged, and the record contained a verdict form for count II indicating a “not guilty” verdict while a poll of the jury had indicated a finding of “guilty” on that same count. Upon realizing the conflict, the trial court recalled the seven available members of the discharged jury to correct the verdict form.

On review, the Court of Criminal Appeals upheld this amended verdict as a clerical correction authorized by Rule 29, Ala. R.Crim. P., which provides, in pertinent part, that “[clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” The Court of Criminal Appeals relied in part on Dera-mus Hearing Aid Center, Inc. v. American Hearing Aid Associates, Inc., 950 So.2d 292 (Ala.2006). In Deramus, the trial court inadvertently signed an order entering a summary judgment for the defendants and subsequently corrected its mistake by rescinding that order and signing a summary-judgment order in favor of the plaintiffs, as it had originally intended to do, pursuant to the authority granted it by Rule 60(a), Ala R. Civ. P., from which Rule 29, Ala. R.Crim. P., is directly taken. See Committee Comments to Rule 29, Ala. R.Crim. P. This Court held that “[t]he type of correction in the instant case was clerical in that the correction did not involve one of judicial reasoning, i.e., a mistake of fact or modification of an original judgment, which would require judicial discretion under Rule 60(b), Ala. R. Civ. P.” Deramus, 950 So.2d at 295.

Deramus, however, is distinguishable from the present case. In Deramus, the sole party responsible for the dispositive judgment and the clerical error relating thereto was the judge. He was never “discharged” or otherwise removed from his judicial duties between the time the clerical error was committed and the time it was corrected. Further, because it was a civil action, Deramus was not affected by double-jeopardy concerns. In the present case, the only entity authorized at law to determine the verdict as to count II of the indictment charging Lamb was the jury. At the moment the jury was discharged, the record contained a written verdict form stating the jury had found Lamb “not guilty” as to count II and the trial court had polled the jurors, who indicated that they had rendered a guilty verdict as to that same count.

Undertaking to change a jury’s verdict, whether in written or oral form, is unavoidably a substantial change, not a mere correction of a clerical mistake, and such a change should have been noticed, altered, and entered on the record before the jury was discharged, the moment that “ends [its] consideration of the case.” Preferred Risk, 395 So.2d at 986 (citing St Clair, supra). It is clear from the record that the trial court was not making this correction pursuant to Rule 29, Ala. R.Crim. P., because Rule 29 allows the court to make such a correction “at anytime of its own initiative.” Rather, the trial court recalled seven of the discharged jurors, inquired of their intent on the record, re-polled them as to the verdict, and requested that the jury foreman make the necessary correction on the verdict form for count II.

In Hayes, 44 Ala.App. at 501-02, 214 So.2d at 710, the Court of Appeals summarized this Court’s jurisprudence on this issue as follows: “When a jury has been discharged by the court and has left the courtroom so as to place themselves beyond the immediate, continuous control of the court, their connection with the case ceases to exist and thereafter that case is beyond their control.” (Emphasis added.) In Hayes, the jury read the verdict in court and was then discharged. After the jurors left the courtroom, it was discovered that the jurors had returned two written verdicts, although they had been instructed to return only one. The court sent the bailiff to retrieve the jurors. The bailiff returned “15 or 20 minutes” later with “some” of the jurors, and the other jurors returned a few minutes after that. 44 AlaApp. at 500-01, 214 So.2d at 710. The Court of Appeals held- that “once the jury has been discharged and left the court’s control, they could not thereafter be resummoned in order to correct or amend a verdict which is insufficient in substance.” 44 AlaApp. at 502, 214 So.2d at 710 (emphasis added).- This- reasoning is consistent with this Court’s reasoning in Preferred Risk. “ ‘Although [this Court’s prior] cases do not expressly determine the point, the inference is irresistible that where the verdict is received, recorded, and the jury dismissed, as here, they have not the power to alter their verdict.’ ” 395 So.2d at 986 (quoting Walters v. Junkins, 16 Serg. & Rawle 414, 16 Am. Dec. 585 (Pa.1826)).

A critical concern raised by a jury’s discharge, later recall, and subsequent rendering of a second verdict is the possibility that “ ‘any outside influence’ ” could be brought to bear on the jurors or the jurors could be “ ‘communicated with or tampered with by any person’ ” during the “‘very few minutes that transpired between the time of discharge and recall.’ ” Preferred Risk, 395 So.2d at 988 (quoting Masters v. State, 344 So.2d 616, 619 (Fla. Dist.Ct.App.1977)).

At Lamb’s trial, the jury was outside the courtroom and outside the presence and supervision of any officer of the court for a few minutes between its discharge and the recall. Additionally, five members of that jury were completely unavailable and did not participate in that recall. Even if this Court were to somehow overlook the possibility of taint once this jury was formally discharged and beyond the presence and supervision of the court, a significant concern remains that five members of the discharged jury were not available to attempt to correct the inconsistent verdicts.

An additional concern raised by the facts of this and similar cases, as this Court discussed in Preferred Risk, is the appearance of impropriety. 395 So.2d at 987. The integrity of jury verdicts and their acceptance by the society governed by them are “at the very root and branch of the jury system itself.” 395 So.2d at 987. What is before us — a correction to inconsistent verdicts on a single count of an indictment by seven members of a discharged jury who had been beyond the presence and supervision of the court— certainly appears improper.

Conclusion

The jury delivered two inconsistent verdicts as to count II of the indictment charging Lamb with .first-degree sexual abuse, one of which was a written verdict form finding Lamb “not guilty,” which became final when it was accepted by the court and the jury discharged. The jury then left the presence and supervision of the court. Thereafter, neither the jury nor the trial court had the power to alter the verdict. Preferred Risk, 395 So.2d at 987. The written verdict form for count II signed by the jury foreman that was delivered to the court indicated that the jury found Lamb “not guilty” of sexual abuse in the first degree, as charged, and that is the verdict that must stand. Any subsequent alteration of the verdict under the facts of this case would subject Lamb to being placed twice in jeopardy for a crime he had been acquitted of and would violate his rights against double jeopardy under the United States Constitution and the Alabama Constitution.

The Court of Criminal Appeals’ affir-mance of the Tallapoosa Circuit Court’s summary dismissal of Lamb’s Rule 32 petition therefore must be reversed and the cause remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

SHAW, J., dissents.

MAIN and WISE, JJ., recuse themselves.

SHAW, Justice

(dissenting).

I respectfully dissent. The jury in this case was charged on four counts. After the deliberations, the jury foreman orally announced guilty verdicts as to counts I, II, and III. The foreman then indicated to the trial court that the written verdict form was incorrect as to count IV, and the jury returned to the jury room to clarify its verdict on count IV. The jury returned and delivered an oral verdict of “not guilty” as to count IV. The written verdict form delivered to the trial court, however, indicated that the jury had found the defendant “not guilty” on count II. This fact was not discovered until after the jury had been discharged.

I agree that the oral verdict delivered by the foreman on count II, a verdict finding the defendant guilty, conflicts with the written verdict form indicating a verdict of “not guilty” on that count. If the facts of this case ended there, I would agree that a reversal of the Court of Criminal Appeals’ judgment was appropriate.

However, after receiving the oral verdict of not guilty on count IV, the trial court undertook to confirm the guilty verdicts on counts I, II, and' III. The trial court stated:

“All right. Ladies and gentlemen, as to counts one, two, and three, I am going to poll you. What I mean, I am going to ask you individually whether this verdict is your verdict individually.... And this pertains to all three verdicts that you have voted guilty on. All right? Were these your verdicts?”

Each individual juror then confirmed that they found the defendant guilty as to counts I, II, and III.

There is no confusion in this case as to the jury’s actual verdict on count II: the jurors individually confirmed the foreman’s oral verdict of “guilty” on that count. The trial court specifically indicated that it was going to inquire as to each juror’s verdict on counts I, II, and III for the purpose of ensuring that the “three verdicts that you ... voted guilty on” were “your verdicts.” This clarified and rectified any existent conflict between the oral verdict already delivered by the foreman and the written verdict already delivered to but not yet read by the trial court. After the jury was polled, the inconsistency was resolved.

As noted in the main opinion, the trial court attempted to reassemble the dismissed jury for the purpose of correcting the written verdict form. I agree that the trial court could not allow the jury to amend its verdict after the jury had been dismissed. Hayes v. State, 44 Ala.App. 499, 502, 214 So.2d 708, 710 (1968) (“[0]nce the jury has been discharged and left the court’s control, they could not thereafter be resummoned in order to correct or amend a verdict.”). However, any error committed by the trial court was harmless because under Rule 29, Ala. R.Crim. P., the trial court has the power to correct a mistake on the written verdict form. Specifically, Rule 29 allows a trial court to correct “[ejlerieal mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission....” The “clerical errors” that can be corrected under Rule 29 include “‘errors by others, such as a jury foreman, counsel, a party, or the judge himself.’” Dollar v. State, 687 So.2d 209, 210 (Ala. 1996) (quoting Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala.1979) (emphasis omitted)). As the Court of Criminal Appeals noted, Rule 29 “authorize[s] the court to correct a clerical error in the record to accurately reflect the judgment that was rendered, i.e., to speak the truth.” Lamb v. State, 113 So.3d 677, 680 (Ala.Crim.App.2010). The jury’s true verdict, as confirmed and clarified by the trial court’s polling of the jury, was a verdict of “guilty” on count II. The trial court was free under Rule 29 to correct the mistake of the foreman on the written verdict form so that it would represent the jury’s true verdict expressed when it was polled.

The main opinion appears to elevate the written verdict over the oral verdict and appears to say that the trial court has no authority to alter a written verdict. 113 So.3d at 680-82. Under Rule 26.1, Ala. R.Crim. P., a judgment is “the adjudication of the court” based on, among other things, “the verdict of the jury.” Although Rule 23.1(a), Ala. R.Crim. P., states that a “verdict of the jury ... shall be in writing” and that written verdicts, are “preferable” to oral verdicts, “case law states that it is not essential to a verdict that the verdict be in writing.” Committee Comments to Rule 23.1. The trial court is thus free to enter a judgment on an oral verdict as well as on a written verdict. In the instant case, the jury members confirmed that the oral verdict delivered by the foreman on count II — “guilty”—was “their verdict,” and the trial court was free to enter its judgment finding Lamb guilty on count II based on that oral verdict.

In Hayes v. State, the defendant was charged with grand larceny and with buying, receiving, or concealing stolen property. The jury was given three verdict forms: “(1) One for Grand Larceny; (2) one for buying, receiving, or concealing stolen property; and (3) one for not guilty.” 44 AlaApp. at 500, 214 So.2d at 709. The jury was instructed to return only one form. After deliberations, the jury reached a decision and gave an oral verdict finding the defendant guilty of grand larceny. After the jury was discharged, it was discovered that the jury foreman, contrary to the trial court’s instruction, had completed and signed both the verdict form finding the defendant guilty of grand larceny and the form finding him guilty of buying, receiving, or concealing stolen property.

The jury’s verdict, the court stated, was “insufficient in substance.” 44 AlaApp. at 502, 214 So.2d at 710. An ambiguity existed because the two written verdicts could not both stand, and one of the written verdicts conflicted with the oral verdict. Unlike the present case, before the jury could be polled as to its true verdict, it was discharged. On application for rehearing, the State contended that the oral verdict should be given precedence over the written verdicts. The court rejected that argument, stating:

“Although, a verdict may be written or oral, where there is both a written and oral verdict, it is necessary that each be in accord with the other. If any incon-sistence or ambiguity exists in the verdict, it must be corrected prior to the dismissal of the jury and failure to do so, as in the instant case, will result in a reversal of the case upon trial.”

44 Ala.App. at 502, 214 So.2d at 711 (emphasis added). Hayes states that any inconsistency or ambiguity in “the verdict” must be resolved before the jury is dismissed. It does not stand for the proposition that a written verdict must be clarified and amended before the jury is discharged in order for “the verdict” of the jury to stand; such a holding would elevate form over substance.

In the instant case, an “ineonsistenc[y] or ambiguity exist[ed] in the verdict” of the jury because the oral verdict delivered by the foreman and the written verdict delivered to the trial court conflicted. That conflict, however, was “corrected pri- or to the dismissal of the jury” by the trial court’s polling of the jury. Although the conflict had not yet been noticed, the very purpose of the poll was to clarify that the verdicts of “guilty” on counts I, II, and III were correct. I would hold that the record affirmatively demonstrates that the jury found Lamb guilty on count II and that the trial court properly entered a judgment on that verdict. Thus, I would affirm the decision of the Court of Criminal Appeals.

      . Lamb was charged with first-degree rape, first-degree sexual abuse, and incest with regard to one victim (counts I, II, and III) and with second-degree sexual abuse as to another victim (count IV). Only issues relating to count II — the first-degree-sexual-abuse conviction — are before us.

      . Further review of the record indicates that the trial court did in fact specify "counts I, II, and III” before polling the jury.

      . This Court is releasing another case on this date, Ex parte T.D.M., [Ms. 1091645, October 28, 2011] - So.3d - (Ala.2011), with analogous facts and a similar outcome. We note that the problematic recalling of a discharged jury can be avoided in all cases if, before the jury is discharged, the court polls the jury and the court and all counsel review the written verdict form or forms.

      . I cannot conclude that there existed a juror or jurors who actually intended to deliver a guilty verdict only on two counts but then specifically confirmed when polled that he or she delivered a guilty verdict on three counts.

      . In Ex parte T.D.M., [Ms. 1091645, October 28, 2011] - So.3d- (Ala.2011), a decision released today, the trial court discharged the jury before the verdict could be confirmed. The trial court in that case attempted to recall the jury to amend its verdict in violation of the "the general rule that a jury cannot be recalled after discharge to amend its verdict.” — So.3d at-.

      . Continental Oil involved a discussion of Rule 60(a), Ala. R. Civ. P. "Because Rule 29 is taken directly from Rule 60(a), Ala. R. Civ. P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29.” Dollar, 687 So.2d at 210.


author: PER CURIAM.

text:
    James Beauford LAMB, Jr. v. STATE of Alabama.
    CR-08-1682.
    Court of Criminal Appeals of Alabama.
    March 23, 2012.
    James Beauford Lamb, Jr., pro se.
    Troy King and Luther Strange, attys. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

PER CURIAM.

James Beauford Lamb, Jr., appealed the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. Lamb’s petition challenged his convictions for first-degree rape and first-degree sexual abuse and his resulting sentences of 20 years’ imprisonment on the rape conviction and 10 years’ imprisonment on the sexual-abuse conviction. This Court affirmed the circuit court’s judgment. Lamb v. State, 113 So.3d 677 (Ala.Crim.App.2010). Lamb then petitioned the Alabama Supreme Court for certiorari review. In an opinion issued October 28, 2011, the Alabama Supreme Court reversed our judgment insofar as it affirmed the circuit court’s summary dismissal of that part of Lamb’s Rule 32 petition challenging his conviction for first-degree sexual abuse. Ex parte Lamb, 113 So.3d 686, 691 (Ala.2011). As to the conviction for first-degree sexual abuse, the Supreme Court specifically held:

“The jury delivered two inconsistent verdicts as to count II of the indictment charging Lamb with first-degree sexual abuse, one of which was a written verdict form finding Lamb ‘not guilty,’ which became final when it was accepted by the court and the jury discharged. The jury then left the presence and supervision of the court. Thereafter, neither the jury nor the trial court had the power to alter the verdict. Preferred Risk [Mut. Ins. Co. v. Stuart J, 395 So.2d [980,] at 987 [ (Ala.1981) ]. The written verdict form for count II signed by the jury foreman that was delivered to the court indicated that the jury found Lamb ‘not guilty’ of sexual abuse in the first degree, as charged, and that is the verdict that must stand. Any subsequent alteration of the verdict under the facts of this case would subject Lamb to being placed twice in jeopardy for a crime he had been acquitted of and would violate his rights against double jeopardy under the United States Constitution and the Alabama Constitution.
“The Court of Criminal Appeals’ affir-mance of the Tallapoosa Circuit Court’s summary dismissal of Lamb’s Rule 32 petition therefore must be reversed and the cause remanded to that court for further proceedings consistent with this opinion.”

Ex parte Lamb, 113 So.3d at 691.

In accordance with the opinion of the Alabama Supreme Court, we remand this case to the circuit court for it to vacate the part of its judgment summarily dismissing that part of Lamb’s Rule 32 petition challenging his conviction for first-degree sexual assault and to enter a new judgment consistent with the Supreme Court’s opinion in Ex parte Lamb.

REMANDED WITH DIRECTIONS.

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

      . In a footnote, the Supreme Court stated: “Lamb was charged with first-degree rape, first-degree sexual abuse, and incest with regard to one victim (counts I, II, and III) and with second-degree sexual abuse as to another victim (count IV). Only issues relating to count II — the first-degree-sexual-abuse conviction — are before us." Ex parte Lamb, 113 So.3d at 687 n. 1 (emphasis added).

       Note from the reporter of decisions: On November 30, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: JOINER, Judge.

text:
    Alan Dwight HEUPEL v. STATE of Alabama.
    CR-11-1205.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.

      Jeffrey W. Barksdale, Red Bay, for appellant.
    Luther Strange, atty. gen., and Robin Denise Scales, asst. atty. gen., for appellee.
   On Return to Remand

JOINER, Judge.

Alan Dwight Heupel pleaded guilty to second-degree theft. See § 13A-8^1, Ala. Code 1975. Heupel was sentenced, pursuant to a plea agreement, to 10 years’ imprisonment, to be served through Franklin County Community Corrections, and ordered to pay a crime-victim-compensation assessment. The circuit court ordered Heupel, following a restitution hearing, to pay restitution in the amount of $8,215.50, paid at a rate of $200 per month. Heupel appeals from the circuit court’s order of restitution. We reverse and remand.

In 2010, Heupel was hired to be a caretaker for Lorenzo Overton, who was in declining health; while Heupel was serving as Overton’s caretaker, a .38 caliber pistol was discovered missing from Overton’s house by Overton’s daughter, Patricia Montgomery. It was later determined that Heupel had attempted to sell the gun to Billy Wilson, and Heupel later admitted to Greg Pickard that he had stolen the gun.

Heupel was indicted for second-degree theft and on February 8, 2012, pleaded guilty to the offense as charged in the indictment. The circuit court left the issue of restitution open to be settled at a later date. On March 20, 2012, the circuit court held a restitution hearing and entered an order directing Heupel to pay restitution of $3,215.50.

On appeal, Heupel argues that the circuit court abused its discretion when it ordered him to pay restitution in the amount of $3,215.50. Specifically, he says that $1,828.00 represented “cash taken from victim” for which he was not convicted. (Heupel’s brief, p. 6.)

Regarding a challenge to the amount of restitution ordered by the circuit court, the Alabama Supreme Court has held:

“ ‘The particular amount of restitution is a matter which must of necessity be left almost totally to the discretion of the trial judge.’ Clare v. State, 456 So.2d 355, 356 (Ala.Crim.App.1983), ajfd, 456 So.2d 357 (Ala.1984). Moreover, the exercise of ‘[t]hat discretion should not be overturned except in cases of clear flagrant abuse.’ Id.”

Ex parte Stutts, 897 So.2d 431, 433 (Ala.2004).

The State contends, in its brief, that Heupel failed to preserve his argument for review because, it says, “[h]e failed to obtain an adverse ruling from the trial court on the claim.” (State’s brief, p. 7.) We disagree.

It is well established that
“[reserving the right to appeal an issue is not the equivalent of preserving an issue for appellate review. To preserve an issue for appellate review, the issue must be timely raised and specifically presented to the trial court and an adverse ruling obtained. The purpose of requiring an issue to be preserved for review is to allow the trial court the first opportunity to correct any error. See, e.g., Ex parte Coulliette, 857 So.2d 793 (Ala.2003).”

Knight v. State, 936 So.2d 544, 547 (Ala.Crim.App.2005).

The State contends that Heupel “failed to properly preserve the claim in the trial court. Heupel did not make an objection on this ground during the restitution hearing, particularly when the victim was testifying concerning other items and cash that she .determined were stolen by Heupel, in addition to the gun.” The record indicates, however, that Heupel objected to the amount continuously and specifically throughout the restitution hearing. Specifically, the following exchange took place:

“[DISTRICT ATTORNEY]: And, so, now, there was a lot of items I know that weren’t listed in the indictment that were also — that you turned' in to your insurance coverage; is that right?
“[WITNESS]: Yes.
“[DISTRICT ATTORNEY]: And were those items—
“[COUNSEL FOR HEUPEL]: Your Honor, I would object on the grounds of relevance. The indictment references a stolen gun, and I think what we’re getting into is restitution amount for items above and beyond this gun.
“THE COURT: Overruled.
“[DISTRICT ATTORNEY]: Okay. And was there some large amounts of cash that were also missing?
“[WITNESS]: Yes.
“[COUNSEL FOR HEUPEL]: Objection, Your Honor. Same grounds; relevancy.
“THE COURT: Overruled.”

(R. 12.) The trial court’s overruling of Heupel’s objections was an adverse ruling, and Heupel in fact preserved this issue for review.

The State contends that “even if preserved, the claim is without merit and Heupel should be denied relief from this Court on this basis as well.” (State’s brief, p. 10.) The State cites the plea agreement signed by Heupel, in which he agreed “to pay full restitution as ordered by [the] court.”

The State cites Ex parte Killough, 434 So.2d 852 (AIa.1983), to support its contention. We are not persuaded that Killough is controlling. In Killough, the issue presented was “whether a defendant who pleads guilty to an indictment can be required, as a condition of probation, to make restitution in an amount greater than that alleged in the indictment.” 434 So.2d at 852-53. Here, however, no restitution amount was set forth in the indictment; rather, it was left open. Further, Killough did not present the specific issue that is raised in the present case. The defendant in Killough does not appear to have argued that he had been ordered to pay restitution for crimes he did not commit; rather, he argued that restitution could not exceed the amount set forth in the indictment, and he challenged the conditioning of probation upon the payment of restitution. Here, Heupel challenges a portion of the restitution award on the basis that (1) it was not proximately caused by the crime Heupel pleaded guilty to and (2) it is based solely on a crime that Heupel did not plead guilty to or otherwise admit to. Therefore, Killough is inappo-site.

It is well established that a defendant can be required to pay restitution only if one of two conditions exists.

“[U]nder Alabama’s restitution statute, the defendant could be ordered to pay restitution to the victim of his crime only if one of two conditions existed: (1) his victim suffered direct or indirect pecuniary loss as a result of the criminal activity of which the defendant has been convicted, or (2) he admitted to other criminal conduct during the proceedings that was the proximate cause of the victim’s pecuniary loss or damages.”

B.M.J. v. State, 952 So.2d 1174, 1176 (Ala. Crim.App.2006). See also Lamar v. State, 803 So.2d 576 (Ala.Crim.App.2001). Furthermore, as this Court stated in Grace v. State, 899 So.2d 302, 308 (Ala.Crim.App.2004), in addressing Alabama’s restitution statute:

“ ‘[I]t is well established that criminal statutes should not be “extended by construction.” ’ Ex parte Evers, 434 So.2d 813, 817 (Ala.1983). ‘“[Criminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.” ’ United States v. Bridges, 493 F.2d 918, 922 (5th Cir.1974).” Carroll [v. State ], 599 So.2d [1253] at 1264 [ (Ala.Crim.App.1992) ].’ ”

In Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986), this Court stated that “[b]efore a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained by the victim.” In Day v. State, 557 So.2d 1318, 1319 (Ala.Crim.App.1989), this Court stated:

“In the instant case, appellant was ordered to pay restitution to Patterson after being convicted of the attempted murder of Johnson, an offense which was not alleged in the indictment or proven at trial to be the cause of Patterson’s injury. ‘Before a defendant can be held liable for damages, it must be established that his criminal act was the proximate cause of the injury sustained .... ’ Strough v. State, 501 So.2d 488, 491 (Ala.Crim.App.1986). While there was some evidence in the record tending to show that appellant did cause Patterson’s injury, he was not on trial here for causing her injury, nor had he been convicted of causing her injury....
“If it could be said that Patterson’s injury arose from appellant’s attempted murder of Johnson, for which he was convicted, then she could properly be characterized as a victim, and restitution to her would be proper. However, when one suffers a loss which resulted from conduct that was not the subject of the defendant’s prosecution and for which a subsequent prosecution would be necessary to determine the defendant’s criminal liability, if any, we hold that an order of restitution to that person is no more appropriate than would be the sentencing of the clefendant to a term of imprisonment without first affording him the basic constitutional guarantees of a trial and verdict on those charges. Appellant should not have been ordered to pay restitution to Patterson.”

(Emphasis added.)

Here, as in Day, the State has failed to show that Heupel’s theft of the gun was the proximate cause of the missing cash. Further, Heupel did not admit to theft of the currency. Therefore, the trial court abused its discretion when it ordered Heupel to pay restitution in the amount of $1,828, which was the amount of cash alleged to be missing.

In light of the foregoing, the circuit court improperly ordered Heupel to pay restitution for the missing cash. Consequently, we reverse that part of the circuit court’s restitution order requiring Heupel to pay $1,828 for the missing cash, and we remand this case for the circuit court to vacate that part of its order not in compliance with this opinion. Due return shall be made to this Court within 42 of the date of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On July 26, 2012, the Court of Criminal Appeals issued an order remanding this case to the trial court, with instructions. On August 15, 2012, the trial court filed a return to the Court of Criminal Appeals’ remand order. This opinion followed.

      . The circuit court initially imposed a $25 crime-victim-compensation assessment. Section 15-23-17, Ala.Code 1975, mandates that, "[i]n addition to the imposition of any other costs, penalties, or fines imposed pursuant to law, any person convicted or pleading guilty to a felony ... shall be ordered to pay a victim compensation assessment of not less than fifty dollars ($50), nor more than ten thousand dollars ($10,000), for each felony for which the person was convicted or adjudicated ... when the court orders that costs be paid.” We remanded this case on July 26, 2012, for the circuit court to impose the correct amount. On remand, the circuit court complied with our instructions.

      . The indictment states:
      "The Grand Jury of Franklin County charges, before the finding of this indictment, Alan Dwight Heupel, whose name is otherwise unknown to the Grand Jury than as stated, did knowingly obtain or exert unauthorized control over a firearm, rifle or shotgun, to-wit: a 38 revolver, the property of Lorenzo Overton and/or Patricia Montgomery, with the intent to deprive the owner of said firearm, rifle or shotgun, in violation of 13A-8-4 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

      . Normally, a defendant must express intention before the guilty plea to properly reserve the issue in question. It is well settled that
      "[t]o reserve an issue for review, a defendant must express his or her intention, before the guilty plea is entered, to appeal the issue in question. Because a guilty plea waives all nonjurisdictional defects occurring before the entry of the plea, by entering a guilty plea a defendant is presumed to have abandoned all nonjurisdictional defects that occurred before the plea unless he or she expressly conditions the plea on the right to appeal the issue in question by expressly reserving it before entiy of the plea. See, e.g., Prim v. State, 616 So.2d 381 (Ala.Crim.App. 1993). Reserving an issue for appeal avoids the waiver effect of the guilty plea, but it does not preserve the issue for appellate review. Thus, in the guilty-plea context, an issue relating to a defect occurring before the entry of the plea must be both preserved by a timely and specific motion and/or objection and an adverse ruling from the trial court and reserved for appeal before the entry of the plea.”

        Knight v. State, 936 So.2d 544, 547 (Ala.Crim. App.2005). Here, it would have been impractical for Heupel to raise the issue of restitution before his guilty plea because the issue of restitution was set for a later date. After the circuit court’s order of restitution, Heupel filed a "motion to reconsider restitution” and a "motion to clarify victim owed restitution.” (C. 13, 20.) Furthermore, this Court has recognized that an order on restitution entered after conviction and sentencing is separately appealable to this Court. See Jolly v. State, 689 So.2d 986 (Ala.Crim.App.1996) (restitution order entered 23 months after sentence pronounced was appealable to this Court). The circuit court did not rule on either motion for reconsideration of the restitution award. Even so, the court’s denial of Heu-pel's objections pertaining to the relevance of the alleged cash taken preserved this issue for review.

       Note from the reporter of decisions: On November 30, 2012, on return to remand, the Court of Criminal Appeals affirmed, without opinion.