text:
    R.W.S. v. C.B.D.
    R.W.S. v. C.B.D.
    2160344 2160518
    Court of Civil Appeals of Alabama.
    August 11, 2017
    James M. Perry, Birmingham, for appellant.
    Frank J. Russo of Russo, White & Keller, P.C., Birmingham, for appellee.
    Bryant A. Whitmire, Jr., Birmingham, guardian ad litem.
   THOMPSON, Presiding Judge.

On August 11, 2016, C.B.D. ("the stepfather") filed in the St. Clair Probate Court ("the probate court") a petition under the Alabama Adoption Code ("the AAC"), § 26-10A-1 et seq., Ala. Code 1975. In that petition, the stepfather sought to adopt a child born in April 2015 to his wife, A.L.D. ("the mother"), and, in support of that petition, he submitted, among other things, a consent to the adoption executed by the mother that expressed her desire that the stepfather adopt the child. Also in that petition, the stepfather identified R.W.S. as the putative father of the child. See § 26-10A-2(12), Ala. Code 1975 (defining the term "putative father" as "[t]he alleged or reputed father").

On August 15, 2016, the probate court entered an interlocutory order granting custody of the child to the stepfather, ordering that he provide for the child's support, and scheduling the adoption action for a final hearing. See § 26-10A-18, Ala. Code 1975.

On September 12, 2016, R.W.S., appearing pro se, filed an objection to the proposed adoption; R.W.S. asserted in that filing that he wanted to "establish his rights" as the father of the child. An attorney appeared on behalf of R.W.S. on December 1, 2016. The probate court received ore tenus evidence at a January 13, 2017, hearing.

On January 23, 2017, the probate court entered a judgment granting the stepfather's petition to adopt the child and noting that it had denied R.W.S.'s opposition to the proposed adoption. R.W.S., represented by new counsel, filed a postjudgment motion on February 3, 2017. In support of that postjudgment motion, R.W.S. submitted copies of text messages and e-mails between the mother and him, as well as a January 27, 2017, affidavit executed by R.W.S.

On February 14, 2017, R.W.S. filed an amended motion in which, among other things, he sought relief pursuant to Rule 59(e), Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. R.W.S. submitted another affidavit, dated February 14, 2017, in support of that amended motion.

On February 17, 2017, the probate court entered an order concluding that R.W.S.'s February 3, 2017, postjudgment motion had been denied by operation of law and denying the February 14, 2017, amended motion. R.W.S. had appealed on February 16, 2017, and this court assigned that appeal number 2160344. Later, on March 31, 2017, R.W.S. filed another notice of appeal, which was assigned appeal number 2160518. In his notice of appeal in appeal number 2160518, R.W.S. indicated that he was appealing the denial of that part of his February 14, 2016, amended motion in which he had sought relief pursuant to Rule 60(b).

R.W.S. moved to consolidate the two appeals, and this court originally denied that motion on May 31, 2017. Upon reconsideration, this court has granted the motion to consolidate the two appeals and has considered the two appeals together. We note that the briefs R.W.S. submitted in each of the two appeals are virtually identical. The difference in the two appellate briefs arises in appeal number 2150518, in which R.W.S. added a paragraph pertaining to the standard for reviewing a denial of a Rule 60(b) motion.

R.W.S. argues in his appellate brief that the probate court erred in determining that his February 3, 2017, postjudgment motion was denied by operation of law in appeal number 2060344. The period for timely appealing an adoption judgment of a probate court is 14 days from the entry of the adoption judgment, unless that time is extended by the filing of a timely postjudgment motion. § 26-10A-26(a), Ala. Code 1975. A postjudgment motion taken from a probate court's adoption judgment must be filed within 14 days of that judgment. Ex parte A.M.P., 997 So.2d 1008, 1013 n. 3 (Ala. 2008). Such a postjudgment motion is denied by operation of law if the probate court fails to rule on it within 14 days. Ex parte W.L.K., 175 So.3d 652, 656 n. 1 (Ala. Civ. App. 2015) (citing Ex parte A.M.P., supra).

R.W.S.'s February 3, 2017, postjudgment motion was timely filed within 14 days of the entry of the January 23, 2017, probate-court judgment approving the adoption. Ex parte A.M.P., supra ; Ex parte W.L.K., supra. The February 3, 2017, postjudgment motion could remain pending for 14 days, or until February 17, 2017, and would be deemed denied by operation of law in the absence of a ruling from the probate court. Id. The probate court entered an order on February 17, 2017, the last day on which it could rule on R.W.S.'s February 3, 2017, postjudgment motion, in which it incorrectly determined that the February 3, 2017, postjudgment motion had already been denied by operation of law. In that order, the probate court did not specifically rule on the February 3, 2017, postjudgment motion by denying it or granting it. However, by failing to rule on the February 3, 2017, postjudgment motion by February 17, 2017, the probate court did allow the motion to be denied by operation of law. See Rule 59.1, Ala. Code 1975; § 26-10A-26(a), Ala. Code 1975; Ex parte A.M.P., 997 So.2d at 1013 n. 3; and note 5, infra. Thus, the probate court's incorrect conclusion in its February 17, 2017, order that the February 3, 2017, postjudgment motion had already been denied by operation of law was of no effect. In appeal number 2160344, R.W.S. timely appealed the adoption judgment and the denial of his February 3, 2017, postjudgment motion.

Although neither party raises the issue, this court must also examine the timeliness of R.W.S.'s February 14, 2017, "amended" motion that purported, in its title, to seek relief pursuant to Rule 59(e), Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. See C & D Logging v. Mobley, 61 So.3d 1067, 1069 (Ala. Civ. App. 2009) (jurisdictional issues, such as timeliness, are of such importance that this court may take notice of them ex mero motu ). The substance of a motion governs the manner in which it is to be construed. R.D.J. v. A.P.J., 142 So.3d 662, 666 n. 1 (Ala. Civ. App. 2013). In purporting to seek relief pursuant to Rule 60(b) in the February 14, 2017, amended motion, R.W.S. stated only that "[i]f this amended motion is deemed untimely pursuant to Rule 59, [R.W.S.] moves for relief under Rule 60(b)." R.W.S. made no argument in the February 14, 2017, amended motion pertaining to the various forms of relief from a judgment that are available under Rule 60(b). After examining the substance of the February 14, 2017, amended motion, we conclude that R.W.S. sought only relief available under Rule 59(e). Accordingly, we cannot conclude that any part of the February 14, 2017, amended motion could be argued to be a Rule 60(b) motion. See Burgess v. Burgess, 99 So.3d 1237, 1239 n. 1 (Ala. Civ. App. 2012) ("Although the husband indicated that his motion was filed pursuant to Rule 59, Ala. R. Civ. P., and Rule 60, Ala. R. Civ. P., we conclude that, because the motion did not seek relief pursuant to Rule 60(b), that motion was filed pursuant to Rule 59(e), Ala. R. Civ. P.").

Further, in his brief submitted to this court in appeal number 2160518, R.W.S., although he includes one paragraph setting forth the general standard of review of a Rule 60(b) motion, makes no argument pertaining to the denial of any part of the February 14, 2017, amended motion that might be argued to be made pursuant to Rule 60(b). It is neither the function nor the duty of this court to create an argument on behalf of an appellant or to perform an appellant's legal research. Swindle v. Swindle, 55 So.3d 1234, 1245 (Ala. Civ. App. 2010) (citing White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) ). R.W.S. has failed to adequately address his apparent contention that the probate court erred in denying that part of his February 14, 2017, amended motion that he contended was made pursuant to Rule 60(b). Accordingly, we affirm the denial of that motion to the extent that it might be argued, as R.W.S. purportedly does in appeal number 2160518, to have requested relief under Rule 60(b).

As indicated above, R.W.S.'s February 14, 2017, amended motion was one made pursuant to Rule 59(e), Ala. R. Civ. P. R.D.J. v. A.P.J., supra ; Burgess v. Burgess, supra. Accordingly, for ease of reference, we refer to R.W.S.'s February 14, 2017, amended motion as an "amended postjudgment motion," i.e., a motion filed pursuant to Rule 59, for the remainder of this opinion. R.W.S.'s February 14, 2017, amended postjudgment motion, to the extent that it sought relief pursuant to Rule 59, was not filed within 14 days of the entry of the January 23, 2017, adoption judgment; therefore, under different facts, that motion might have been determined to be untimely. See Ex parte A.M.P., 997 So.2d at 1013 n. 3 (noting that a Rule 59 postjudgment motion taken from an adoption judgment must be filed within 14 days of the entry of that judgment). However, because the February 14, 2017, amended motion was filed while the original, and timely, February 3, 2017, postjudgment motion was still pending, the probate court had the discretion to consider that amended postjudgment motion. Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala. 1983) ("[T]he trial court has discretion to allow an amendment to a motion for new trial to state an additional ground after thirty days from the final judgment, if the original motion was timely filed and is still before the court when the amendment is offered."); Slaton v. Slaton, 542 So.2d 1242, 1244 (Ala. Civ. App. 1989) (same); and Kulakowski v. Cowart, 220 So.3d 304 (Ala. Civ. App. 2016) (same).

In this case, the probate court did not make an express finding regarding whether it had considered the February 14, 2017, amended postjudgment motion. However, the probate court did explicitly deny that motion in its February 17, 2017, order. Therefore, it appears that the probate court exercised its discretion and did consider the February 14, 2017, amended postjudgment motion, and, out of an abundance of caution, we address the issues raised in R.W.S.'s briefs on appeal accordingly. See, generally, Kulakowski v. Cowart, supra (discussing the trial court's discretion to allow an amendment to a postjudgment motion filed after the time allowed under Rule 59(e) but during the time the original postjudgment motion remained pending pursuant to Rule 59.1, Ala. R. Civ. P.).

R.W.S. contends that the probate court's adoption judgment should be reversed because, he says, the record does not contain a finding that R.W.S. consented or impliedly consented to the adoption. The AAC requires that a child's mother, a child's "presumed father," or, under certain circumstances, a child's putative father provide express or implied consent to a proposed adoption of the child. § 26-10A-7(a), Ala. Code 1975; see also § 26-10A-2(11) and (12), Ala. Code 1975 (defining the terms "presumed father" and "putative father" for the purposes of the AAC); and § 26-10A-9, Ala. Code 1975 (explaining the circumstances under which a court may determine that a parent has given implied consent to an adoption of his or her child). Such consent, whether express or implied, must be established by clear and convincing evidence. § 26-10A-7(a), Ala. Code 1975; J.D.S. v. J.W.L., 204 So.3d 386, 387 (Ala. Civ. App. 2016).

It is undisputed that R.W.S. did not expressly consent to the adoption. The prevailing argument in R.W.S.'s defense of the adoption action below and in his appellate briefs filed in this court is his contention that his actions do not indicate that he impliedly consented to the adoption. In the February 14, 2017, amended postjudgment motion, R.W.S., in addition to reiterating some of his earlier arguments, set forth different grounds for seeking to set aside the adoption judgment than those he had argued in his original, February 3, 2017, postjudgment motion. In his original, February 3, 2017, postjudgment motion, R.W.S. maintained that he was the child's "putative father" and that his consent to the adoption was required under the AAC. In his February 14, 2017, amended postjudgment motion, R.W.S. argued, among other things, that his consent to the adoption was required because, he said, he is the child's "presumed father" under the AAC.

The probate court, in its January 23, 2017, judgment, found that R.W.S. was a "putative father." A putative father's consent to an adoption is needed only if he is known to the court and "he complies with Section 26-10C-1 and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10) [of the AAC]." § 26-10A-7(a)(5) (emphasis added). R.W.S. was served with notice of the action by publication, and the record indicates that he responded to the adoption petition within 30 days of that notice; accordingly, it is not disputed that he "respond[ed] to the notice" required under the AAC. § 26-10A-7(a)(5). Section 26-10C-1, Ala. Code 1975, the other statute with which a putative father must comply in order for his consent to an adoption to be necessary under § 26-10A-7(a)(5), requires that a putative father file on the putative-father registry a notice of his intent to claim paternity of a child so that he can, among other things, preserve his ability to contest a proposed adoption of the child. That section further provides, among other things, that

"[a]ny person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to [ § 26-10C-1 ](a) prior to or within 30 days of the birth of a child born out of wedlock, shall be deemed to have given an irrevocable consent in any adoption proceeding.
"This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child born out of wedlock ... to entitle that person to notice of and the opportunity to contest any adoption proceeding ...."

§ 26-10C-1(i).

As is discussed in more detail, infra, the record before this court contains no indication that R.W.S. properly filed a notice of intent to claim paternity of the child on the putative-father registry. In fact, R.W.S. alleged in his February 3, 2017, postjudgment motion that he had not filed a notice of intent to claim paternity on the putative-father registry. In his arguments asserted in his briefs on appeal, R.W.S. concedes that did not "timely" register as required by § 26-10C-1 and § 26-10A-7(a)(5) in order to be able to contest the adoption of the child as a putative father.

R.W.S. contends on appeal that the probate court was required to find in its January 23, 2017, adoption judgment that he had impliedly consented to the adoption through his conduct. However, as is explained above, the consent of a putative father to an adoption is not required if he does not respond to notice of the adoption action within 30 days and if he has not registered on the putative-father registry. The probate court, in its judgment, stated that it had considered R.W.S.'s contest to the adoption but had denied that contest. Thus, that judgment can be interpreted, by applying the foregoing law, as rejecting R.W.S.'s contest to the adoption on the basis that, given the finding that he was a putative father as well as the lack of evidence that he had registered on the putative-father registry and his concession that he did not register, his consent to the adoption was not necessary. See § 26-10A-7(a)(5). We conclude that, under the facts of this case, R.W.S. has failed to demonstrate that, in his status as a putative father, his consent to the adoption of the child was necessary, and, therefore, he has failed to demonstrate that the probate court erred by not including in its January 23, 2017, judgment a specific finding on the issue of his consent.

R.W.S. argues, citing the comment to § 26-10A-24, Ala. Code 1975, governing contested adoption hearings, that his "right to notice ... [under] § 26-10A-17 is meaningless if [he was] not provided with an opportunity to be heard." R.W.S. does not contend, and the record would not support an argument, that R.W.S., who was properly afforded notice of the adoption hearing, was not provided an opportunity to be heard at the January 23, 2017, hearing on the merits of his adoption contest. Accordingly, we cannot agree that the notice of the adoption action afforded R.W.S. was "meaningless," as discussed in the comment to § 26-10A-24. In making his argument on this issue, however, R.W.S. also appears to contend that the right to notice and to be heard in a contest to the adoption created for him a right to be considered a person whose consent is required for an adoption. R.W.S. cites Ex parte S.C.W., 826 So.2d 844 (Ala. 2001), in support of his argument that the probate court was required to determine that, even as a putative father who had not fully complied with § 26-10C-1, his consent to the adoption was required. In Ex parte S.C.W., supra, our supreme court held, under an earlier version of the AAC, that a putative father whose paternity had been proven and who had been made known to the court though the notice provisions of the AAC could contest the adoption of his child even though he had failed to timely file a notice of intent to claim paternity on the putative-father registry. In reaching that holding, the supreme court noted that, at that time, the AAC " 'neither cross-referenced nor mentioned by name' " the Putative Father Registry Act ("PFRA"). 826 So.2d at 848 (quoting and adopting Judge Crawley's special writing, concurring in part and dissenting in part, in S.C.W. v. C.B., 826 So.2d 825, 839 (Ala. Civ. App. 2001) ). The year after that opinion was released, however, our legislature amended the AAC to reference § 26-10C-1 of the PFRA to require that a putative father both respond to the notice of the adoption proceeding and register on the putative-father registry. See Act No. 2002-417, Ala. Acts 2002; § 26-10A-7, Ala. Code 1976. Thus, Ex parte S.C.W., supra, has been superseded by statute. See also J.N.F. v. A.S., 866 So.2d 582, 586 n. 5 (Ala. Civ. App. 2003) (Thompson, J., dissenting) (recognizing that Ex parte S.C.W., supra, has been superseded by statute).

R.W.S. also argues that the record does not contain evidence that supports a finding that he consented or impliedly consented to the adoption or that the probate court found during the hearing on the merits or in its judgment that he had impliedly consented to the adoption. As discussed above, however, R.W.S.'s consent to the adoption was not necessary because the probate court found that he was a putative father and that he had not registered on the putative-father registry. R.W.S. does not explicitly argue that the evidence does not support a determination that he was the child's putative father. He does assert that he should be treated as a presumed father, but he bases that argument on evidence he submitted after the probate court had entered its adoption judgment. This court can construe R.W.S.'s argument as one asserting that the probate court erred in finding that he was a putative father and, therefore, that the probate court also erred in concluding that his consent to the adoption was not necessary. Out of an abundance of caution, we so construe that argument. In doing so, we note that the resolution of this issue also disposes of R.W.S.'s argument that, assuming that he should be considered a presumed father of the child, the evidence did not support a determination that he had consented to the adoption.

The probate court conducted a January 13, 2017, ore tenus evidentiary hearing on the stepfather's petition seeking to adopt the child. Representations in the parties' appellate briefs indicate that R.W.S. and the stepfather each testified and presented evidence at that ore tenus hearing. However, that hearing was not transcribed, and, therefore, there is no transcript of that hearing available for review by this court on appeal. In such a situation, a party may submit a statement of the evidence in order to set forth for an appellate court the nature of the proceedings and the evidence presented below; the procedure for submitting a statement of the evidence is set forth in Rule 10(d), Ala. R. App. P. See also Oliver v. Shealey, 67 So.3d 73, 76 (Ala. 2011) ("If no record is available in the probate court, Rule 10(d), Ala. R. App. P., designates the procedure to be followed in preparing a statement of the evidence or proceedings."). R.W.S. did not submit a Rule 10(d) statement of the evidence. Accordingly, the record before this court contains no information concerning the evidence presented during the January 13, 2017, ore tenus hearing before the probate court.

In his appellate brief, in arguing these evidentiary issues, R.W.S. refers this court only to evidence he submitted in support of his February 3, 2017, postjudgment motion. R.W.S. ignores that the probate court received ore tenus evidence at the January 13, 2017, hearing. However, this court has held:

" 'When oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), [Ala.] R. [App.] P., statement, it must be conclusively presumed that the testimony is sufficient to support the judgment.' Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala. Civ. App. 1991). Furthermore, our supreme court has stated that an appellate court is limited to a review of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel. Wal-Mart Stores, Inc. v. Goodman, 789 So.2d 166, 176 (Ala. 2000), and Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala. 1990) (the appellant bears the burden of ensuring that the record on appeal contains sufficient evidence to warrant reversal). Additionally, this court cannot assume error or presume the existence of facts as to which the record is silent. Goodman, 789 So.2d at 176."

Quick v. Burton, 960 So.2d 678, 680-81 (Ala. Civ. App. 2006). See also Browning v. Carpenter, 596 So.2d 906, 908 (Ala. 1992) ("[W]hen testimony is before the trial court and is considered by the trial court in reaching its decision, and this testimony is not in the record, either in a transcript or in a Rule 10(d) statement, it must be presumed that the testimony was sufficient to support the judgment.").

For the purposes of resolving R.W.S.'s evidentiary arguments, we do not determine whether the probate court could consider the evidence R.W.S. submitted in support of a postjudgment motion, or whether the record indicates that it did so. Rather, even assuming that this court could consider that evidence, we must presume that the evidence the probate court received and considered, but which was not included by R.W.S. in the record before this court or set forth in a Rule 10(d) statement of the evidence, supports the probate court's judgment. Quick v. Burton, supra ; McMichael v. McMichael, 71 So.3d 678, 688 (Ala. Civ. App. 2011) ; and Cockrell v. Cockrell, 40 So.3d 712, 716-17 (Ala. Civ. App. 2009). Accordingly, we must affirm as to the evidentiary issues R.W.S. has asserted in his appellate briefs.

In his appellate briefs, R.W.S. primarily argues that the probate court erred in denying his request for a new trial and that it violated his due-process rights in doing so. R.W.S., for the first time in his February 14, 2017, amended postjudgment motion, argued that, based on evidence he submitted in support of his original, February 3, 2017, postjudgment motion, he should be considered the "presumed father" of the child rather than as a putative father. He argues on appeal that the probate court should have afforded him a new trial to consider evidence pertaining to his claim that he was the presumed father of the child rather than a putative father, as well as to determine whether he, as the purported presumed father of the child, had impliedly consented to the adoption of the child.

The stepfather argues in his brief submitted to this court that R.W.S. did not timely raise his new constitutional and legal arguments, i.e., those arguments pertaining to his contention that he should be considered the presumed father of the child. A trial court has the discretion, but is not required, to consider new legal arguments advanced for the first time in a postjudgment motion. Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala. 1988). Our supreme court recently considered whether the holding in Green Tree had imposed a requirement that, in order for a trial court to consider an issue first raised in a postjudgment motion, the moving party had to explain why that argument had not been asserted before the trier of fact reached its decision. See Alfa Mut. Ins. Co. v. Culverhouse, 149 So.3d 1072, 1075-78 (Ala. 2014). In deciding that no such explanation is required and that the trial court in that case had not erred in considering a legal argument raised for the first time in a postjudgment motion, our supreme court stated:

"[W]e think it clear that the discretion of the trial court to consider a new argument [raised for the first time in a postjudgment motion] is paramount, and we see no reason to limit that discretion to those cases where the moving party has offered an on-the-record explanation for failing to make the belated argument earlier. The trial court is in the best position to determine whether the argument should be considered, and, in this case, the trial court specifically stated that it was 'in the interest of justice' that Culverhouse's belated argument be considered. Certainly, the trial court would have been within its discretion in refusing to consider the new argument, either because Culverhouse had not offered an explanation for failing to make the argument in a timely fashion or for some other reason ...."

Alfa Mut. Ins. Co. v. Culverhouse, 149 So.3d at 1078.

In this case, R.W.S. made no argument before the probate court, and he does not address in his appellate briefs before this court, the reason for his delay in asserting for the first time in the February 14, 2017, amended postjudgment motion his new legal theory that he was the child's presumed father; had he done so, there would be no basis for his arguments, based on the trial court's denial of the motion in which he first raised that issue, that his constitutional due-process rights had been violated by the trial court's rejection of that issue when it was untimely raised for the first time.

We also conclude that R.W.S.'s arguments distinguish this case from Green Tree, supra, and Culverhouse, supra, in which the movants below sought to advance new arguments based on the issues and evidence already before the trial courts in those cases. Rather, R.W.S. also wants this court to hold the probate court in error for, he says, failing to consider evidence he submitted in support of his February 3, 2017, postjudgment motion. Thus, in this case, R.W.S. is seeking to present new evidence and make new legal arguments based on that additional evidence. R.W.S. is not seeking to have the probate court reconsider a legal issue based on the evidence already presented to it. Rather, R.W.S. is, in essence, arguing that the probate court should allow him, and require the stepfather, to relitigate the adoption action by allowing him to present new evidence and to argue a new legal theory in defending the adoption action. R.W.S. does not contend that he was not afforded the opportunity to present that evidence and those arguments during the original adoption hearing, and he does not contend he was in any way prevented from asserting that he was the presumed father of the child. Thus, R.W.S. is actually seeking more than the mere reconsideration of the action under a new legal theory, as did the appellants in Green Tree, supra, and Culverhouse, supra.

The probate court did not state a reason for its denial of the February 14, 2017, amended postjudgment motion. However, the probate court was not required to allow R.W.S. to assert, for the first time, a new legal theory or base a new constitutional argument on the probate court's rejection of that theory. See Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala. 2010) ("There is no indication that the trial court considered the merits of the legal argument raised for the first time in [the appellants'] postjudgment motion, and we will not presume that it did."); see also J.S. v. J.C., 219 So.3d 666, 673 (Ala. Civ. App. 2016) ("Although the father notes on appeal that he alleged in his postjudgment motion, among other things, a due-process violation based on the juvenile court's failure to allow him to file a sworn deposition, the juvenile court was not required to consider that new legal argument raised for the first time in a postjudgment motion."). R.W.S. admits that the probate court afforded him an opportunity to present evidence at the January 23, 2017, ore tenus hearing in opposition to the proposed adoption, and that he did so. It was clearly within the probate court's discretion to reject the new legal theories in the February 14, 2017, amended postjudgment motion, both because R.W.S. failed to explain why he did not assert earlier that he was the child's presumed father and because the probate court was not required to grant that motion and afford R.W.S. a "second bite at the apple," i.e., an opportunity to relitigate an action that had already been resolved. Alfa Mut. Ins. Co. v. Culverhouse, 149 So.3d at 1078. Given the foregoing, we cannot say that R.W.S. has demonstrated that the probate court abused that discretion.

R.W.S. also argues that the probate court erred in denying his "postjudgment" motion without conducting a postjudgment hearing. Rule 59(g), Ala. R. Civ. P., requires that if a party requests a hearing on his postjudgment motion filed pursuant to Rule 59, the request for a hearing must be granted. In Kitchens v. Maye, 623 So.2d 1082, 1088-89 (Ala. 1993), however, our supreme court held that, although a trial court errs in not granting a hearing on a motion pursuant to Rule 59, Ala. R. Civ. P., such an error does not necessarily constitute reversible error. The "harmless-error rule" provides, in pertinent part:

"No judgment may be reversed or set aside ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected the substantial rights of the parties."

Rule 45, Ala. R. App. P. It is harmless error if a trial court fails to hold a hearing in violation of Rule 59(g), " 'where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.' " Kitchens v. Maye, 623 So.2d at 1088-89 (quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989) ).

In this case, we have held that R.W.S. has failed to demonstrate that the probate court erred in denying his postjudgment motions. Accordingly, we must also conclude that the failure to conduct a hearing on those motions was likewise harmless error. Rule 45 ; Kitchens v. Maye, supra.

The stepfather's motions to strike, filed in appeal number 2160344 and in appeal number 2160518, are denied.

2160344-AFFIRMED.

2160518-AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      We note that, in that February 3, 2017, postjudgment motion, R.W.S. mentioned that, in mid-October 2016, he filed a paternity action in the St. Clair Juvenile Court and that that paternity action remained pending. The record contains no other information regarding that action, and R.W.S. makes no argument on appeal concerning the manner, if any, that such a paternity action might impact the adoption action that underlies this appeal.

      See note 5, infra.

      The Rules of Civil Procedure apply to probate-court actions. See § 26-10A-37, Ala. Code 1975; § 12-13-12, Ala. Code 1975; and Ex parte A.M.P., 997 So.2d 1008, 1013 n. 3 (Ala. 2008).

      With regard to the February 3, 2017, postjudgment motion, the probate court stated:
      "This motion was presented to the Court by ... counsel for [R.W.S.] on January 27, 2017, and filed for record on February 3, 2017. Said motion is automatically denied by operation of law."

      As previously indicated, R.W.S. filed his notice of appeal in appeal number 2160344 on February 16, 2017, one day before the February 3, 2017, postjudgment motion was denied by operation of law. R.W.S.'s appeal was held in abeyance until the disposition of the February 3, 2017, postjudgment motion; that appeal became effective upon the denial by operation of law of the February 3, 2017, postjudgment motion. See Rule 4(a)(5), Ala. R. App. P. ("A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions ... shall be held in abeyance until all post-judgment motions ... are ruled upon; such a notice of appeal shall become effective upon the date of disposition of the last of all such motions.").

      Rule 10(d), Ala. R. App. P., provides:
      "(d) Statement of the Evidence or Proceedings When No Report Was Made or When a Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. If the appellant prepares such a statement, the appellant shall serve it on the appellee within 28 days (4 weeks) after filing the notice of appeal; the appellee, within 14 days (2 weeks) after service, may serve on the appellant objections or proposed amendments to the statement. If the appellee serves no objection or proposed amendments, then, within 21 days (3 weeks) after the statement was served on the appellee, the appellant shall file the statement with the trial court for approval. If the appellee serves on the appellant any objections or proposed amendments, then, within 7 days (1 week) after service, the appellant shall file the statement and any objections or proposed amendments with the trial court for settlement and approval. Within 21 days (3 weeks) after the filing, the trial court shall rule, settling any questions regarding the objections and proposed amendments, and issuing an approved statement of the evidence or proceedings. The statement, either as approved by the court or as issued by the court after its ruling, shall be filed with the clerk of the trial court, who shall include it in the record on appeal."

      We have concluded that R.W.S. raised the "presumed father" argument, and the constitutional issues based on that argument, for the first time in his February 14, 2017, amended postjudgment motion. R.W.S. makes no contention that he had raised that issue before the probate court entered the adoption judgment, or that the probate court erred in failing to consider the evidence presented at the adoption hearing as it related to an argument that he was the child's presumed father. In his original, February 3, 2017, postjudgment motion, R.W.S. made arguments that he was a putative father of the child, and he made allegations concerning the evidence presented at the adoption hearing; that purported evidence was relevant to whether R.W.S. should be considered a putative father. Even assuming, however, that it could be said that R.W.S. had raised at the adoption hearing the issue whether he was the child's presumed father, the probate court received evidence at that hearing that is not contained in the record before this court. Accordingly, even if the issue of whether R.W.S. was a presumed father had been raised during the adoption hearing, we would affirm because we are constrained to presume that the evidence received by the probate court but not before this court was sufficient to support the probate court's judgment. Quick v. Burton, supra ; Browning v. Carpenter, supra.

      As we have earlier explained, under the facts of this case, the probate court determined that R.W.S. was a putative father, and, given the facts, his consent to the proposed adoption was not required under § 26-10A-7(a)(5). The AAC does not place conditions, such as a requirement to comply with § 26-10C-1, on the requirement that a presumed father must consent, either expressly or impliedly, to an adoption. See § 26-10A-5(a)(3), Ala. Code 1975.

      The stepfather does not dispute that no hearing was conducted on R.W.S.'s postjudgment motions.


source: Caselaw Access Project

author: WINDOM, Presiding Judge.

license: Public Domain

text:
    Jeffrey LEE v. STATE of Alabama
    CR-15-1415
    Court of Criminal Appeals of Alabama.
    February 10, 2017 Rehearing Denied April 21, 2017 Certiorari Denied August 25, 2017
    Alabama Supreme Court 1160675
    Bill Blanchard. Montgomery; and David Burman, Nicholas Gellert, and David A. Perez, Seattle, Washington, for appellant.
    Luther Strange, atty. gen., and Lauren A. Simpson, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Jeffrey Lee appeals from the circuit court's summary dismissal of his second postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P., in which he challenged his three capital-murder convictions and sentences of death.

Lee was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one count of capital murder for killing two people, Ellis and Thompson, by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975. He was also convicted of attempted murder for shooting Helen King during the robbery. At the conclusion of the penalty-phase of the trial, the jury recommended, by a vote of 7 to 5, that the circuit court sentence Lee to life in prison without the possibility of parole. The circuit court considered but rejected the jury's recommendation and sentenced Lee to death.

On October 26, 2001, on direct appeal, this Court remanded Lee's case with instructions for the circuit court to amend its sentencing order. Lee v. State, 898 So.2d 790 (Ala. Crim. App. 2001). While the cause was on remand to the circuit court, the Supreme Court of the United States issued its opinion in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied its earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to capital cases and held that defendants facing a sentence of death are "entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment," e.g., a jury finding regarding the existence of an aggravating circumstance. Thereafter, the circuit court filed its return to remand. At that point, this Court ordered "the parties to file supplemental briefs addressing the applicability of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to [Lee's] case." Lee, 898 So.2d at 858. After the parties filed their supplemental briefs, this Court affirmed Lee's capital-murder convictions and sentences of death. Regarding Ring, this Court held:

"In this case, the trial court found that one aggravating circumstance existed-the appellant committed the capital offenses while he was engaged in the commission of a robbery or an attempted robbery. See § 13A-5-49(4), Ala. Code 1975. Because the jury convicted [Lee] of the capital offense of robbery-murder, that statutory aggravating circumstance was proven beyond a reasonable doubt. Therefore, in this case, the jury, and not the judge, determined the existence of the 'aggravating circumstance necessary for imposition of the death penalty.' Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Furthermore, ' Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances.' Ex parte Waldrop, 859 So.2d 1181, 1190 (Ala. 2002). Therefore, there was not a Ring violation in this case."

Lee, 898 So.2d at 858. On February 6, 2004, the Alabama Supreme Court denied Lee's petition for a writ of certiorari. On October 12, 2004, the Supreme Court of the United States also denied Lee's petition for a writ of certiorari.

In 2005, Lee filed his first Rule 32 petition in which he argued, among numerous other things, that his death sentences were imposed in violation of the Supreme Court's decision in Ring. In April of that year, Lee filed an amended Rule 32 petition. In August of 2007, the circuit court issued an order summarily dismissing Lee's Rule 32 petition. On October 9, 2009, this Court affirmed the circuit court's summary dismissal of Lee's Rule 32 petition. Thereafter, on February 19, 2010, the Alabama Supreme Court denied Lee's petition for a writ of certiorari seeking review of this Court's affirmance.

According to Lee, on October 21, 2010, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the Federal District Court for the Southern District of Alabama. In his petition, Lee reasserted his Ring claim. On May 30, 2012, the district court denied Lee's petition. On August 1, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed the district court's decision. The Supreme Court of the United States denied Lee's petition for a writ of certiorari.

On January 12, 2016, after the Supreme Court of the United States had denied Lee's petition for a writ of certiorari, it issued its decision in Hurst v. Florida, 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). "[I]n Hurst [, the Court] applied its holding in Ring to Florida's capital-sentencing scheme and held that Florida's capital-sentencing scheme was unconstitutional because, under that scheme, the trial judge, not the jury, made the 'findings necessary to impose the death penalty.' " Ex parte Bohannon, 222 So. 3d 525, 531 (Ala. 2016) (quoting Hurst, 577 U.S. ----, 136 S.Ct. at 622 ).

On April 28, 2016, Lee filed a second Rule 32 petition in the circuit court. In his petition, Lee argued that Alabama's capital-sentencing scheme is unconstitutional under Hurst. On June 16, 2016, the State filed a motion to dismiss Lee's petition. In its motion, the State argued that Lee's petition was procedurally barred under Rule 32.2(b), Ala. R. Crim. P., because it was successive, and under Rule 32.2(a)(4), Ala. Crim. App., because Lee's claim was raised and addressed on direct appeal. The State also argued that Hurst did not apply retroactively to a collateral challenge to a death sentence. Finally, the State argued that Lee's Hurst claim was facially without merit. On July 29, 2016, Lee filed an opposition to the State's motion to dismiss. On August 5, 2016, the circuit court granted the State's motion and dismissed Lee's petition. Lee appealed.

I.

On appeal, Lee first argues that the circuit court's order dismissing his Rule 32 petition did not reflect that court's independent judgment; therefore, the order must be reversed. Specifically, Lee argues that the circuit court adopted as its order a proposed order filed by the State. According to Lee, the order prepared by the State did not address all the arguments he had raised in his brief opposing dismissal. He also argues that the court's order incorrectly characterizes one of his arguments. Thus, Lee concludes the circuit court's order was not the product of the circuit court's independent judgment and must be reversed. This Court disagrees.

Recently, this Court explained:

" 'Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.' McGahee v. State, 885 So.2d 191, 229-30 (Ala. Crim. App. 2003). 'While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.' Bell v. State, 593 So.2d 123, 126 (Ala. Crim. App. 1991). '[T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court.' Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only 'when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court's independent judgment' will the circuit court's adoption of the State's proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).
"For example, in Ex parte Ingram, supra, the circuit court adopted verbatim the State's proposed order summarily dismissing Robert Shawn Ingram's Rule 32 petition. In the order, the court stated that it had considered ' "the events within the personal knowledge of the Court" ' and that it had ' "presided over Ingram's capital murder trial and personally observed the performance of both lawyers throughout Ingram's trial and sentencing." ' Ex parte Ingram, 51 So.3d at 1123 (citation and emphasis omitted). However, the judge who had summarily dismissed the petition had not, in fact, presided over Ingram's trial and had no personal knowledge of the trial. The Alabama Supreme Court described these errors in the court's adopted order as 'the most material and obvious of errors,' 51 So.3d at 1123, and 'patently erroneous,' 51 So.3d at 1125, and concluded that the errors 'undermine[d] any confidence that the trial court's findings of fact and conclusions of law [we]re the product of the trial judge's independent judgment.' 51 So.2d at 1125.
"In Ex parte Scott, [Ms. 1091275, March 18, 2011] --- So. 3d ---- (Ala. 2011), the circuit court adopted verbatim as its order the State's answer to Willie Earl Scott's Rule 32 petition. The Alabama Supreme Court stated:
" '[A]n answer, by its very nature, is adversarial and sets forth one party's position in the litigation. It makes no claim of being an impartial consideration of the facts and law; rather it is a work of advocacy that exhorts one party's perception of the law as it pertains to the relevant facts.' "
"Ex parte Scott, --- So. 3d at ----. The Court then held that '[t]he trial court's verbatim adoption of the State's answer to Scott's Rule 32 petition as its order, by its nature, violates this Court's holding in Ex parte Ingram' that the findings and conclusions in a court's order must be those of the court itself. Ex parte Scott, --- So. 3d at ----."

R eeves v. State, 226 So. 3d 711, 724 (Ala. Crim. App. 2016).

Unlike in Ex parte Ingram and Ex parte Scott, the record in this case does not clearly establish that the circuit court's order dismissing Lee's petition was anything but the court's own independent judgment. The circuit court's order contains no patently erroneous statements as was the case in Ex parte Ingram, and the circuit court adopted a proposed order as opposed to an answer. Further, after reviewing the record, this Court concludes that the circuit court's order reflects that court's independent judgment. Therefore, this Court holds that the circuit court did not err by adopting the State's proposed order dismissing Lee's Rule 32 petition.

Moreover, even if the circuit court erred in adopting the State's proposed order, that error, if any, would be harmless beyond a reasonable doubt. See Rule 45, Ala. R. App. P. As discussed below, the claim raised in Lee's Rule 32 petition was procedurally barred under Rule 32.2(a)(4), and under Rule 32.2(b), Ala. R. Crim. P. Cf. Peraita v. State, 897 So.2d 1161, 1185 (Ala. Crim. App. 2003) (holding that the circuit court's erroneous determination was harmless when there was a valid alternative reason for the circuit court's action); United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir. 2009) (holding that a trial court's error is harmless when it had a valid alternative holding); Shedden v. Principi, 381 F.3d 1163, 1168 (Fed. Cir. 2004) (same); Barton v. Gammell, 143 Ga.App. 291, 238 S.E.2d 445, 448 (1977) (holding that an erroneous finding is harmless when the trial court's decision is supported by other grounds). Because Lee's claim in his Rule 32 petition was procedurally barred under Rule 32.2(a)(4) and under Rule 32.2(b), Ala. R. Crim. P., the error, if any, in the adoption of the State's proposed order was harmless. Jenkins v. State, 105 So.3d 1234, 1242 (Ala. Crim. App. 2011). Therefore, Lee is not entitled to any relief on this issue.

II.

Lee next argues that the circuit court erred in finding that Hurst does not apply retroactively to his case. According to Lee, Hurst did not announce a new rule, but instead, applied the Rule established in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to new facts. Therefore, the holding in Hurst is applicable and can be raised in his collateral proceedings. The State, not surprisingly, agrees that Hurst merely applied the rule of law established in Ring and Apprendi but argues that, because Ring and Apprendi were decided before Lee's direct appeal became final, his claim is procedurally barred. See Rule 32.2(a)(4) and 32.2(b), Ala. R. Crim. P. This Court agrees with the State.

It is well settled that a new case applying an old rule will not operate to exempt a petitioner from the application of the procedural bars established in Rule 32.2, Ala. R. Crim. P. Clemons v. State, 123 So.3d 1, 12 (Ala. Crim. App. 2012) ("Because the Supreme Court did not establish new law ... but rather applied law that was established long before Clemons's trial and before his first Rule 32 petition, Clemons's claim was procedurally barred because he could have raised it at trial, on appeal, Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P., or in his first Rule 32 proceedings, 32.2(b), Ala. R. Crim. P."); Fitts v. Eberlin, 626 F.Supp.2d 724, 733 (N.D. Ohio 2009) ("Given that no new rule exists that applies to [the petitioner's] case, [his] plea for equitable tolling ... must fail.").

Here, the parties agree that the Supreme Court did not establish a new rule in Hurst; rather, " '[t]he Court in Hurst did nothing more than apply its previous holdings in Apprendi and Ring to Florida's capital-sentencing scheme.' " (Lee's brief, at 18 (quoting State v. Billups, 223 So. 3d 954, 963 (Ala. Crim. App. 2016)).) Both this Court and the Alabama Supreme Court have recognized that Hurst merely applied the rule established in Apprendi and Ring to new facts: the State of Florida's death-penalty scheme. See State v. Billups, 223 So. 3d at 963 ; Phillips v. State, [Ms. CR-12-0197, Oct. 21, 2016] --- So. 3d ----, ---- (Ala. Crim. App. 2016); Ex parte Bohannon, 222 So. 3d at 532 (" Hurst applies Ring and reiterates that a jury, not a judge, must find the existence of an aggravating factor to make a defendant death-eligible."). Because the decision in Hurst did not create a new rule, Lee's Ring / Hurst claim was subject to the procedural bars contained in Rule 32.2, Ala. R. Crim. P. Clemons, 123 So.3d at 12. Specifically, Lee's Ring / Hurst claim was procedurally barred under Rule 32.2(a)(4), Ala. R. Crim. P., because it was raised on direct appeal and in a previous Rule 32 petition. Lee v. State, 898 So.2d 790, 858 (Ala. Crim. App. 2001). Further, because Lee raised a Ring claim in his previous Rule 32 petition, his current Ring / Hurst claim is successive and, thus, procedurally barred under Rule 32.2(b), Ala. R. Crim. P.

Lee, however, argues that his Ring / Hurst claim is not subject to the procedural bars contained in Rule 32.2, Ala. R. Crim. P., because his claim implicates the circuit court's jurisdiction. Lee is incorrect. In Hunt v. State, 940 So.2d 1041, 1057 (Ala. Crim. App. 2005), the petitioner "argue[d] that the procedural default rules in Rule 32, Ala. R. Crim. P., do not exclude claims that raise a jurisdictional defect and that the Apprendi [/ Ring ], claim, he ... raise[d] [was] a jurisdictional issue"; therefore, the circuit court erroneously denied relief. This Court disagreed and held that the decisions in Apprendi and Ring do not apply retroactively and that the circuit court properly denied relief. Hunt, 940 So.2d at 1057. Similarly, the Court's decision in Hurst, which merely applied its decision in Ring to a new set of facts, does not implicate the circuit court's jurisdiction and thus does not excuse the application of the procedural bars contained in Rule 32.2, Ala. R. Crim. P.

"Because the Supreme Court did not establish new law in [ Hurst ] but rather applied law that was established ... before [Lee's appeal became final] and before his first Rule 32 petition, [Lee's] claim was procedurally barred because [it was raised] on appeal, Rule 32.2(a) ( [4] ) and [because it was raised] in his first Rule 32 proceedings, 32.2(b), Ala. R. Crim. P." Clemons, 123 So.3d at 12. Therefore, the circuit court did not err by summarily dismissing Lee's successive Rule 32 petition.

Further, even if the Hurst decision did announce a new rule, the circuit court correctly dismissed Lee's petition because that rule would not apply retroactively and, thus, would not be applicable in Lee's postconviction proceedings. In Reeves v. State, 226 So. 3d 711, 757 (Ala. Crim. App. 2016), this Court explained:

"The United States Supreme Court's opinion in Hurst was based solely on its previous opinion in Ring, an opinion the United States Supreme Court held did not apply retroactively on collateral review to cases that were already final when the decision was announced. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Because Ring does not apply retroactively on collateral review, it follows that Hurst also does not apply retroactively on collateral review. Rather, Hurst applies only to cases not yet final when that opinion was released, such as Johnson, supra, a case that was still on direct appeal (specifically, pending certiorari review in the United States Supreme Court) when Hurst was released. Reeves's case, however, was final in 2001, 15 years before the opinion in Hurst was released. Therefore, Hurst is not applicable here."

For the forgoing reasons, the circuit court correctly dismissed Lee's Rule 32 petition, and its judgment is affirmed.

AFFIRMED.

Welch, Kellum, Burke, and Joiner, JJ., concur.

      This Court remanded this case to the circuit court with instructions that the trial court amend its sentencing order to comply with the requirements of Ex parte Taylor, 808 So.2d 1215 (Ala. 2001).


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION 2.430, 2.535, 2.560, AND 2.565.
    No. SC17-1137
    Supreme Court of Florida.
    [May 31, 2018]
    Judson Lee Cohen, Chair, Miami Lakes, Florida, and Honorable Steven Scott Stephens, Past Chair, Rules of Judicial Administration Committee, Tampa, Florida; Honorable J. Kevin Abdoney, Chair, Court Interpreter Certification Board, Bartow, Florida; Joshua E. Doyle, Executive Director, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioners
    Honorable Frederick J. Lauten, Chief Judge, Ninth Judicial Circuit, Orlando, Florida; Honorable Margaret O. Steinbeck, Chair, Trial Court Budget Commission, Twentieth Judicial Circuit, Fort Myers, Florida, and Eric Maclure, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, Responding with comments
   PER CURIAM.

The Court has for consideration out-of-cycle amendments to the Florida Rules of Judicial Administration proposed by the Rules of Judicial Administration Committee (Committee) and the Court Interpreter Certification Board (Board). After considering the comments filed with the Court concerning the proposals that would require the making and retention of audio recordings of both the English and non-English portions of criminal and juvenile delinquency proceedings when a lesser-qualified spoken language court interpreter is appointed (recording requirement), the Committee and Board withdrew those proposals and revised other proposals. We adopt all the remaining and revised proposals, except the proposed deletion of the rule 2.560(e) advisement/objection/waiver provisions that apply in criminal or juvenile delinquency proceedings.

BACKGROUND

The majority of the rule amendments proposed in the joint out-of-cycle report are in response to a request made by this Court in In re Amendments to Fla. Rules of Judicial Administration, 206 So.3d 1, 2 (Fla. 2016) (referring specified issues back to Committee and Board, at their request, for further consideration). In the Court's 2016 opinion amending rule 2.560 (Appointment of Spoken Language Court Interpreters for Non-English-Speaking and Limited-English-Proficient Persons) and adopting rule 2.565 (Retention of Spoken Language Court Interpreters for Non-English-Speaking and Limited-English-Proficient Persons by Attorneys or Self-Represented Litigants), the Court asked the Committee and the Board to consider several issues. The Committee and the Board were to consider "the utility of requiring non-English speaking or limited-English proficient persons to make on-the-record objections and waivers pertaining to [spoken language court] interpreters appointed to assist such individuals," and "consider the ability of a non-English speaking or limited English-proficient person to effectively make a knowing and intelligent objection or waiver and consider other error preserving mechanisms, including the requirement of audio recording for the purpose of preserving judicial review of the accuracy of the interpretation." See id. The recording requirement proposals are among the rule amendments the Committee and the Board proposed in response to that referral. According to the report, several of the other proposals included in the report are not related to the referral issues. The Executive Committee of the Florida Bar unanimously approved all the proposed rule amendments.

After considering comments filed by the Chief Judge of the Ninth Judicial Circuit and the Trial Court Budget Commission (Commission), which pointed out significant fiscal and operational impacts that likely would result from the implementation of the recording requirement proposals, the Committee and the Board withdrew those proposals and revised other unrelated proposals. In their joint response to the comments, the Committee and the Board also agree with the Commission's suggestion that the Court establish a limited pilot program before the Court considers whether to adopt a statewide recording requirement. The Committee and the Board also ask the Court to adopt the remaining and revised rule amendments that are unrelated to the withdrawn proposals. Those amendments are to rules 2.560(a) (Criminal or Juvenile Delinquency Proceedings), 2.560(e)(4) (On-the-Record Objections or Waivers in Criminal and Juvenile Delinquency Proceedings), 2.560(e)(5) (Additional on-the-Record Findings, Objections, and Waivers Required at Subsequent Proceedings), and 2.565(a) (Retention of Interpreters when Certified or Other Duly Qualified Interpreters Are Available).

AMENDMENTS

We adopt the proposed amendments to rules 2.560(a) (Criminal or Juvenile Delinquency Proceedings) and 2.565(a) (Retention of Interpreters when Certified or Other Duly Qualified Interpreters Are Available). However, at this time, we decline to delete the rule 2.560(e) advisement/objection/waiver provisions that apply in criminal and juvenile delinquency proceedings when a court intends to appoint an interpreter who is not certified, language skilled, or provisionally approved, as defined in the Rules for Certification and Regulation of Spoken Language Court Interpreters.

The amendments to rule 2.560(a) extend the spoken language interpreter appointment requirement in criminal and juvenile delinquency proceedings to parents and legal guardians of accused juveniles and to victims and alleged victims. As amended, subdivision (a) of rule 2.560 requires an interpreter to be appointed in any criminal or juvenile delinquency proceeding in which the accused, the parent or legal guardian of the accused juvenile, the victim, or the alleged victim cannot understand or has limited understanding of English, or cannot express himself or herself in English sufficiently to be understood.

The Committee and the Board proposed the amendments to rule 2.565(a) to clarify that the rule does not require an attorney or self-represented litigant to retain an interpreter to assist the litigant or a witness when the court is not required to appoint one. The rule, as amended, requires that when an attorney or self-represented litigant does retain an interpreter, whenever possible, the attorney or litigant must retain a certified, language skilled, or provisionally approved interpreter.

At this time, we decline to delete the rule 2.560(e) advisement/objection/waiver provisions. Those provisions were originally proposed by the Supreme Court Interpreter Committee and adopted by this Court as part of the overall interpreter-preference scheme for criminal and juvenile delinquency proceedings. See In re Petition to Adopt Fla. Rules for Certification & Regulation of Court Interpreters and Fla. Rule of Jud. Admin. 2.073 , 933 So.2d 504, 506, 518 (Fla. 2006) (adopting rule 2.073 (now rule 2.560 ) and including the subdivision (e) advisement/objection/waiver provisions to be followed when the court intends to appoint an interpreter who is not certified or duly qualified in a criminal or juvenile delinquency proceeding). Those provisions (1) emphasize to the court that a subdivision (e)(1) interpreter (now a certified, language skilled, or provisionally approved interpreter) must be appointed in a criminal or juvenile delinquency proceeding, when one is available, and (2) give the accused notice when the court intends to appoint a less qualified interpreter, so the accused can raise any objection to the appointment before the appointing court. According to the joint report, the deletion of the advisement/objection/waiver provisions was originally proposed in anticipation of the adoption of the "protective net" of requiring the making and retention of audio recordings to preserve interpreter error in criminal and juvenile delinquency proceedings. Because this Court is not putting that "protective net" in place at this time, we defer consideration of whether the subdivision (e) advisement/objection/waiver provisions should remain in the rule until such time as a proposed statewide recording requirement is before this Court.

PILOT PROGRAM

The Commission in its comment and the Committee and the Board in their joint response recommend that before the Court considers requiring the making and retention of audio recordings when a lesser-qualified interpreter is appointed in a criminal or juvenile dependency proceeding, the Court should establish a limited pilot program to assess the fiscal and operational impacts of such a requirement and the best practices for statewide implementation. In light of the significant fiscal and operational impacts identified in the comments, before the Court moves forward with the suggested pilot program, the Chief Justice, in consultation with the Office of the State Courts Administrator (OSCA), will appoint a special workgroup to advise the Court on the need for and the feasibility of such a pilot program and to suggest program parameters and participants. If, after considering the advisory workgroup's recommendations, the Court approves going forward with a pilot program, the workgroup, with the support of OSCA, will oversee the program. And, after that pilot program ends, the workgroup will make recommendations to the Court as to whether a recording requirement to preserve interpreter error should be implemented statewide and the best practices for a statewide requirement. If the Court ultimately decides it should require statewide compliance, the Court will direct the Rules Committee and the Board to file a new out-of-cycle rules report proposing the necessary rule amendments.

In conclusion, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective July 1, 2018, at 12:01 a.m. We also take this opportunity to thank the Rules of Judicial Administration Committee and the Court Interpreter Certification Board for their continued work on these important rules. And we thank the Trial Court Budget Commission and Chief Judge Frederick J. Lauten for their valuable input on the recording requirement proposals.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

RULE 2.560. APPOINTMENT OF SPOKEN LANGUAGE COURT INTERPRETERS FOR NON-ENGLISH-SPEAKING AND LIMITED-ENGLISH-PROFICIENT-PERSONS

(a) Criminal or Juvenile Delinquency Proceedings. In any criminal or juvenile delinquency proceeding in whicha non English speaking or limited English proficient person is the accused,the parent or legal guardian of the accused juvenile, the victim, or the alleged victim cannot understand or has limited understanding of English, or cannot express himself or herself in English sufficiently to be understood, an interpreterfor the non English speaking or limited English proficient person shall be appointed.In any criminal or juvenile delinquency proceeding in which a non English speaking or limited English proficient person is a victim, an interpreter shall be appointed unless the court finds that the victim does not require the services of a court appointed interpreter.

(b) - (g) [No Change]

RULE 2.565. RETENTION OF SPOKEN LANGUAGE COURT INTERPRETERS FOR NON-ENGLISH-SPEAKING AND LIMITED-ENGLISH-PROFICIENT PERSONS BY ATTORNEYS OR SELF-REPRESENTED LITIGANTS

(a) Retention of Interpreters when Certified or Other Duly Qualified Interpreters Are Available. In the absence of a requirement that a spoken language interpreter be appointed by the Court under rule 2.560, wW hen an attorney or self-represented litigant retains the services of an interpreterare requiredto assist a non-English-speaking or limited-English-proficient litigant or witness in a court proceeding or court-related proceeding as defined in the Rules for Certification and Regulation of Spoken Language Court Interpreters,anthe attorney or self-represented litigant shall, whenever possible, retain a certified, language skilled or provisionally approved interpreter, as defined in the Rules for Certification and Regulation of Spoken Language Court Interpreters. Preference shall be given to retention of certified and language skilled interpreters, then to persons holding a provisionally approved designation.

(b) - (f) [No Change]

      See Fla. R. Jud. Admin. 2.140(e).

      We have jurisdiction. See art. V, § 2(a), Fla. Const.

      "Lesser-qualified" interpreter, as used in connection with the withdrawn recording requirement proposals, means an interpreter appointed under Florida Rule of Judicial Administration 2.560(e)(2) who has been registered with the Office of the State Courts Administrator for less than two years, or a nonregistered interpreter appointed under rule 2.560(e)(3).


text:
    IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.570 AND FORM 1.914.
    No. SC17-1533
    Supreme Court of Florida.
    May 31, 2018
    Honorable Rodolfo Armando Ruiz, Chair, Civil Procedure Rules Committee, Miami Florida; Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Robert T. Koehler, Florida Notary Academy, Tampa, Florida, Responding with comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Civil Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const. The Civil Procedure Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to existing rule 1.570 (Enforcement of Final Judgments), the renumbering of existing form 1.914 (Execution), and the adoption of new forms 1.914(b) (Notice to Appear) and 1.914(c) (Affidavit of Claimant in Response to Notice to Appear). See Fla. R. Jud. Admin. 2.140(e). The Committee explains that it has proposed these amendments in response to 2016 statutory amendments.

The Committee published its proposals for comment prior to filing them with the Court and received one comment regarding its proposed amendments to rule 1.570. Upon consideration of the comment, the Committee did not alter its proposals. After the Committee's proposals were filed, the Court published them for comment; one comment was filed by Robert T. Koehler, d/b/a Florida Notary Academy, addressing proposed new form 1.914(c) (Affidavit of Claimant in Response to Notice to Appear).

Having considered the Committee's report and the comments filed with the Committee and the Court, we hereby adopt the proposed amendments to the Florida Rules of Civil Procedure and Forms, with a modification. The amendments are discussed below.

Rule 1.570 (Enforcement of Final Judgments) is amended to add subdivision (e), governing proceedings supplementary to execution of an unsatisfied judgment or judgment lien. The Committee proposed adding subdivision (e) with the following language:

(e) Proceedings Supplementary. The holder of an unsatisfied judgment or judgment lien is entitled to conduct proceedings supplementary to execution and related discovery, as provided by chapter 56, Florida Statutes. Notices to Appear and supplemental complaints in proceedings supplementary must be served as provided by law and rules of procedure for service of process.

However, due to our concerns over some of the language employed by the Committee in the proposed rule, and the use of phrases not defined in either the Florida Rules of Civil Procedure generally or specifically in rule 1.570, we modify the proposed new subdivision to read as follows, and adopt it with this modification:

(e) Proceedings Supplementary. Proceedings supplementary to execution and related discovery shall proceed as provided by chapter 56, Florida Statutes. Notices to Appear, as defined by law, and supplemental complaints in proceedings supplementary must be served as provided by the law and rules of procedure for service of process.

We also renumber form 1.914 (Execution) to 1.914(a), and adopt new forms 1.914(b) (Notice to Appear) and 1.914(c) (Affidavit of Claimant in Response to Notice to Appear), as proposed by the Committee. New form 1.914(b) is adopted in response to 2016 amendments to section 56.29(2), Florida Statutes, which require a court in some circumstances to issue a "Notice to Appear" to a judgment debtor, as defined in that section, or third-party holder of the judgment debtor's property. Ch. 2016-33, § 18, at 6-7, Laws of Fla. Additionally, new form 1.914(c) is adopted for use as the affidavit that a claimant of property is required to file with the court in response to a Notice to Appear under section 56.29(2), Florida Statutes (2017).

Accordingly, the Florida Rules of Civil Procedure and Forms are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective July 1, 2018, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

RULE 1.570. ENFORCEMENT OF FINAL JUDGMENTS

(a) - (d) [No change]

(e) Proceedings Supplementary. Proceedings supplementary to execution and related discovery shall proceed as provided by chapter 56, Florida Statutes. Notices to Appear, as defined by law, and supplemental complaints in proceedings supplementary must be served as provided by the law and rules of procedure for service of process.

Committee Notes

1980 Amendment. [No change]

2018 Amendment. Subdivision (e) has been added to address legislative amendments to chapter 56, Florida Statutes (2016).

FORM 1.914 (a). EXECUTION

EXECUTION

THE STATE OF FLORIDA:

To Each Sheriff of the State:

YOU ARE COMMANDED to levy on the property subject to execution of .......... in the sum of $.......... with interest at .....% a year from .....(date)....., until paid and to have this writ before the court when satisfied.

DATED on ................

(Name of Clerk) As Clerk of the Court By ____________________ As Deputy Clerk

FORM 1.914(b). NOTICE TO APPEAR

NOTICE TO APPEAR

TO .....(name of third party).....

YOU ARE NOTIFIED that, pursuant to section 56.29, Florida Statutes, proceedings supplementary to satisfy a judgment by application of the following:.....(identify the property, debt, or other obligation due to the judgment debtor)..... in ..........County, Florida have been initiated against you by .....(name of judgment creditor)...... You are required to serve an affidavit......date..... stating that the [property] [debt] [other obligation] belongs to you. The affidavit must include any fact or legal defense opposing the application of the [property] [debt] [other obligation] toward the satisfaction of the judgment on .....(name of the judgment creditor, or its attorney, and his/her/its address)......You must file the original affidavit with the clerk of this court either before service on the judgment creditor or immediately thereafter. Legal defenses need not be filed under oath but must be served contemporaneously with the affidavit.

If any of your property has been levied on and you choose to oppose the application of the property to be applied toward the satisfaction of the judgment, then you must furnish a bond with surety to be approved by the officer in favor of the judgment creditor. The amount of the bond must be double the value of the goods claimed as the value is fixed by the officer and conditioned to deliver said property on demand of said officer if it is adjudged to be the property of the judgment debtor and to pay the judgment creditor all damages found against you if it appears that the claim was interposed for the purpose of delay.

YOU HAVE A RIGHT TO A TRIAL BY JURY TO DETERMINE THE RIGHT TO THE [PROPERTY, DEBT OR OTHER OBLIGATION DUE TO THE JUDGMENT DEBTOR]. YOU ARE ENTITLED TO DISCOVERY UNDER THE FLORIDA RULES OF CIVIL PROCEDURE. IF THE COURT OR JURY DETERMINES THAT THE [PROPERTY] [DEBT] [OTHER OBLIGATION] BELONGS TO THE JUDGMENT DEBTOR AND IS SUBJECT TO APPLICATION TOWARD THE SATISFACTION OF

ITS JUDGMENT, THEN YOU MAY BE ORDERED TO .....(PAY DAMAGES TO THE JUDGMENT CREDITOR OR SURRENDER THE PROPERTY OR OTHER OBLIGATION DUE TO THE JUDGMENT DEBTOR TO THE JUDGMENT CREDITOR)......

ORDERED at ........., Florida, on..... (date) .....

_______________________ Judge

FORM 1.914(c). AFFIDAVIT OF CLAIMANT IN RESPONSE TO NOTICE TO APPEAR

AFFIDAVIT OF CLAIMANT IN RESPONSE TO NOTICE TO APPEAR

BEFORE ME, the undersigned authority, appeared.....(name of claimant or claimant's agent)....., who, after being first duly sworn, deposes and states, under penalty of perjury:

1. I am the ........(claimant, or identify relationship to claimant)......

2. I (or claimant) was served with a Notice to Appear on.....(date)......

3. I (or claimant) own(s) and am/is entitled to possession of.....(describe the property, debt, or other obligation due to the judgment debtor identified in the Notice to Appear).....

4. This property should not be applied to satisfy the judgment because.....(state all reasons why the property, debt, or other obligation due to the judgment debtor identified in the Notice to Appear should not be applied to satisfy the judgment)......

5. (Select a or b)

a. I (or claimant) request(s) a trial by jury on all issues so triable.

b. I (or claimant) request(s) a non-jury trial on all issues.

FURTHER AFFIANT SAYETH NAUGHT.

Dated: ________ __________________________________ Signature of Affiant Printed Name: ____________________ STATE OF ____________________________ COUNTY OF ___________________________

Sworn to or affirmed and signed before me on this ___ day of ______________, 20 ___ by (name of affiant) ________________, who is personally known to me or who has produced _________________, as identification and who did take an oath.

_________________________________ NOTARY PUBLIC, STATE OF .....(Print, Type or Stamp Commissioned Name of Notary Public) .....

Committee Note s

1980 Amendment. The description of the property to be levied on has to be made general so it encompasses all property subject to execution under section 56.061, Florida Statutes (1979).

2018 Adoption. Form 1.914(c) is used by a claimant to respond to a Notice to Appear under section 56.29(2), Florida Statutes. Legal defenses need not be filed under oath, but must be served contemporaneously with the affidavit. If the claimant's property has already been levied upon, he or she may obtain possession of the property by filing with the officer having the execution a copy of this affidavit and by furnishing the officer a bond with surety, as set forth in section 56.16, Florida Statutes.

      See generally ch. 2016-33, Laws of Fla. (amending chapter 56, Florida Statutes).


text:
    B.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-5184
    District Court of Appeal of Florida, First District.
    June 15, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gregory B. MYERS, Appellant, v. BANK OF AMERICA, NATIONAL ASSOCIATION, Appellee.
    No. 1D17-3995
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Vladimir CARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3444
    District Court of Appeal of Florida, First District.
    April 13, 2018 Rehearing Denied June 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Victor PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1163
    District Court of Appeal of Florida, First District.
    March 29, 2018 Rehearing Denied June 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Barbara Ann KELLY, Appellant, v. BANK OF AMERICA, NATIONAL ASSOCIATION, Appellee.
    No. 1D17-3996
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Terry Edward STETTLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4752
    District Court of Appeal of Florida, First District.
    April 13, 2018 Rehearing Denied May 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    H.C.B., mother of J.N.D., minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-3075
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael F. DALY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1651
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenneth REESE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4842
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ulysses WOODFAULK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4127
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kareem GRADY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3439
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CITY OF MIAMI BEACH and Corvel Corporation, Appellants, v. William GEDDES, Appellee.
    No. 1D17-5046
    District Court of Appeal of Florida, First District.
    Date of Accident: December 12, 2011 April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Norman WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5384
    District Court of Appeal of Florida, First District.
    April 13, 2018 Rehearing Denied May 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Lidale R. KELLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1750
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Ronald Edward BROOKS Jr, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3665
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John Michael KOZIK, Appellant, v. Craig HANSON, as representative of Alice Marie Kozik, Appellee.
    No. 1D17-2441
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John Michael KOZIK, Appellant, v. Craig HANSON, Individually and as Emergency Temporary Custodian of Alice Marie Kozik, and Teresa Hanson, Individually, and Alice Marie Kozik, Appellees.
    No. 1D17-1392
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    STATE of Florida, Appellant, v. Matthew Joseph KENWORTHY, Appellee.
    No. 1D17-276
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeremy Emanuel CRENSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3378
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tondrick Jakal HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3102
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wilman R. COLLANDO PENA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0530
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2384
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeffrey LATIMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0123
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Floyd TURNER, Appellant, v. Jennifer BAKER, Appellee.
    No. 1D17-1999
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Neville LAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-2750
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kareem Tijuan WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3947
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marlon Shanti POTTS, Petitioner, v. STATE of Florida, Respondent.
    Nos. 1D17-0378 1D17-0855 (consolidated for disposition)
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Demetrio GABRIELE, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-1970
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thaddeus MCKINNON, Appellant, v. Michelle Lee PELT, Appellee.
    No. 1D17-1541
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Joseph BRANSFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-321
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Luis G. ALICEA SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4826
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David W. PALMER, II, Appellant, v. WASHINGTON COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 1D17-4906
    District Court of Appeal of Florida, First District.
    April 18, 2018 Rehearing Denied May 17, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Grant NUNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5341
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Michael Keith GOOGINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4854
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Eddie James MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0093
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David Christopher KING, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2976
    District Court of Appeal of Florida, First District.
    April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Brandon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2524
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Justin FORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-4648
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    J.L. NIEMAN, Appellant, v. SOUTHEASTERN GROCERS, LLC., Bi-Lo Holding, LLC., Winn-Dixie Stores, Inc., and Steven C. Strachota, Appellees.
    No. 1D17-4471
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas SAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1282
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Keion Marquise JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1068
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Calvin L. ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5748
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Keita JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5146
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edwin REYES, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Phoenix Air Conditioning, LLC, Appellees.
    No. 1D17-2023
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph Wade ROBINSON, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1341
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tywan Cornell BEDGOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4200
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David Cole ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2430
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Edward WEBB, Appellant, v. DEPARTMENT OF CORRECTIONS and Florida Commission on Offender Review, Appellees.
    No. 1D17-4812
    District Court of Appeal of Florida, First District.
    April 19, 2018 Rehearing Denied May 29, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    L. S., mother of T. C., minor child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-3901
    District Court of Appeal of Florida, First District.
    April 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul STILL, Appellant, v. SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Appellee.
    No. 1D17-1940
    District Court of Appeal of Florida, First District.
    April 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leonard TAYLOR, Appellant, v. CHENEY BROTHERS INC., et al., Appellee.
    No. 1D17-4714
    District Court of Appeal of Florida, First District.
    April 19, 2018 Rehearing Denied June 6, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeffrey Lee FINGER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4164 1D16-4336 (Consolidated for disposition)
    District Court of Appeal of Florida, First District.
    April 19, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Edward Phillip RUTHERFORD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-546
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James HINES, Jr., DOC #529817, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3368
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Scott HAAS, DOC# S18655, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2179
    District Court of Appeal of Florida, Second District.
    Opinion filed March 14, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mateo AGUILAR-LANDA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4317
    District Court of Appeal of Florida, Second District.
    Opinion filed December 15, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eugene WALTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4236
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kreg Santos PEREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4299
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Owen D. DENSON, Jr., a/k/a Hikim Shabazz, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4452
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew WARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4256
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Herbert Earl STILLEY, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D16-3265
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daniel L. ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2595
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael WHITE, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D16-2294 2D16-2326
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ilyas A. JAFAR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3286
    District Court of Appeal of Florida, Second District.
    Opinion filed April 13, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anthony Apollo NEELEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3957
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Justin Michael DRENNAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5118
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Hershel ROSEBORO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5578
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jhaphelix ROBINSON, DOC #R50084, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3238
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mark WYMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2296
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edgardo J. TORRES-NEVAREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2643
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sylathum STREETER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2662
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael HAGAN, DOC #18547, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3524
    District Court of Appeal of Florida, Second District.
    Opinion filed April 18, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lewis GAINERS, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4071
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1812
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph Anthony NASTASI, Appellant, v. Kodie Jean NASTASI, Appellee.
    Case No. 2D17-1939
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Audrey LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2048
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John M. KILGORE, Appellant, v. Denise A. DOUGLAS, as personal representative of the Estate of Dreka Andrews; Bank of New York Mellon, f/k/a Bank of New York, as trustee for the Certificateholders of the CWABS, Inc., Asset-backed Certificates, Series 2006-18; and Rexanne Smith a/k/a Rexanne Smith Williams, Appellees.
    Case No. 2D17-2164
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jay LARSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2375
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George SOULELLIS, Appellant, v. Markos BAHAS, Appellee.
    Case No. 2D17-2592
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Everett EDWARDS, DOC #577029, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2779
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Sharon Lynn FLEMING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2975
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    S.L.P., O/B/O E.M.P., a minor child, Appellant, v. R.A.P., Appellee.
    Case No. 2D17-3541
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kevin A. KYLE, Trustee; Damascus Trading Company, LLC; Kimberly Regenesis, LLC; and Mouracade Regenerative Medicine, LLC, Petitioners, v. LEE COUNTY, a Florida political subdivision, Respondent.
    Case No. 2D17-3620
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Bob GUALTIERI, in his official capacity as Sheriff of Pinellas County, Florida, Appellant, v. C.F. and T.F., individually and as parents and legal guardians for N.F., a minor child, Appellees.
    Case No. 2D17-3632
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jody KULLING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-416
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vincent A. MADHAVATH, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-600
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Amil Lamont BARNES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3297
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Stephen Fitzgerald PITTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4906
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.