text:
    EX PARTE ASSOCIATED GENERAL CONTRACTORS WORKERS’ COMPENSATION SELF-INSURERS FUND, ALABAMA BRANCH, and Good Hope Contracting, Inc. (In re: Associated General Contractors Workers’ Compensation Self-Insurers Fund, Alabama Branch v. Lynn Harding)
    2160120
    Court of Civil Appeals of Alabama.
    Jan. 6, 2017

      Jonathan L. Berryhill, Candace M. Deer, and Devona J. Segrest of Wilson &. Berryhill, P.C., Birmingham, for petition-' er.
   DONALDSON, Judge.

Associated General Contractors Workers’ Compensation Self-Insurers Fund, Alabama Branch (“the AGC Fund”), and Good Hope Contracting, Inc. (“Good Hope”), petition this court for a writ of mandamus directing the Cullman Circuit Court (“the trial court”) to vacate an order transferring the action to Jefferson County, to reinstate the action in Cullman Cóunty, and to enter an order denying Lynn Harding’s motion to dismiss based on improper venue or, alternatively, to transfer the action. Harding did not file a response to the petition with this court. For the reasons set forth below, we grant the petition and issue the writ.

Background

On June 29, 2016, the AGC Fund filed a complaint against Harding in the trial court seeking a judgment declaring that Harding was not entitled to benefits under the Workers’ Compensation Act, codified at § 25-5-1 et seq., Ala. Code 1975., According to the allegations in the complaint, the AGC Fund is a pooled-risk self-insurer fund in accordance with §§ 25-5-8 and -9, Ala. Code 1975, of the Workers* Compensation Act, and the AGC Fund, which has corporate offices in Jefferson County, provided workers’ compensation coverage through a written agreement to Good Hope, which has its principal place of business in Cullman County. Good Hope was named as Harding’s employer. The AGC Fund further alleged that Harding had made a. claim for-workers’ compensation benefits with Good Hope, that the claim had been forwarded to the AGC Fund, and that the AGC Fund disputed -Harding’s asserted entitlement to workers’ compensation benefits.

On August 2, 2016, Harding filed a “Motion to Dismiss for Improper Venue or in the Alternative, Motion to Transfer Venue to Jefferson County.” The motion states the following:

“1. This is a workers[’] compensation case where [Harding’s] employer’s Workers’ Compensation self-insured fund, [the AGC Fund], sued [Harding] in a complaint for Declaratory Judgment.
“2. To dismiss this action on the ground that it is brought in the wrong county because (a) [Harding] is an individual and venue is- only proper in his county of residence or the county where the accident occurred. Ala. Code § 6-3-2 (1975).
“3. [Harding] is an individual - residing in Jefferson County, Alabama ... and the action that forms the basis of [the AGC Fund’s] complaint occurred in Walker County,.Alabama,... Therefore the correct venue is either Jefferson or Walker County.
“4. [Harding] requests that if this action is not dismissed that it be transferred to Jefferson County, Alabama.”

Harding supported his motion with an affidavit in which he testified:

“1. My name is Lynn Harding and I am the Defendant in this case. ...
“2. On or about August 26, 2015, I was injured on the-job while working for [Good Hope], Said accident occurred on a job site in Walker County, Alabama.
“3. At the time of said injury I lived at ... Kimberly, Alabama ... in Jefferson County, Alabama. I still live at said ad- . dress.”

On August 5, 2016, Harding'filed an answer denying the AGC Fund’s allegations regarding his claim for workers’ compensation benefits and asserting improper venue as an affirmative defense. Harding alleged a counterclaim against the AGC Fund and a cross-claim against Good Hope seeking workers’ compensation benefits. In those claims, Harding alleged that he was injured in Walker County working within the- scope of his employment with Good Hope and other facts purporting to show that he was entitled to workers’ compensation benefits. Harding also alleged that his employment was wrongfully terminated on December 16, 2015, because he was pursuing his workers’ compensation claim, and he alleged a claim of retaliatory discharge against Good Hope. The AGC Fund and Good Hope both filed answers denying liability for workers’ compensation benefits, and, in its answer, Good Hope denied the allegations supporting Harding’s retaliatory-discharge claim.

On October 12, 2016, the AGC Fund filed a response to Harding’s motion, arguing that Harding incorrectly asserted that § 6-3-2, Ala. Code 1976, pertaining to venue in civil actions against individuals, applied to the workers’ compensation action. The AGC Fund asserted that venue for the action was governed by the venue provisions in the Workers’ Compensation Act and § 6-3-7, Ala. Code 1975, the statute pertaining to venue in civil actions against corporations. The AGC Fund supported its response with the affidavits of Danny Hall, a risk manager for Good Hope, and Zachary D. Spanick, a supervisor for Good Hope, who both testified that Good Hope was a domestic Alabama corporation with its principal place of business in Cullman County. Good Hope. filed a response to Harding’s motion -in which it joined the AGC Fund’s response and incorporated .its arguments. In its motion, Good Hope additionally asserted that venue was proper in Cullman County based on the retaliatory-discharge cross-claim -filed by Harding against Good Hope.

On October 14, 2016,» after conducting a hearing on Harding’s motion to dismiss or transfer and the responses from the AGC Fund and Good Hope, the trial court entered an order transferring the case in its entirety to the Jefferson Circuit Court. On November 18, 2016, the AGC Fund and Good Hope jointly filed the present petition for a writ of mandamus to this court. Upon. the - petitioners’ motion, we .stayed the execution of the October 14, 2016, order and other proceedings in the trial court pending a ruling on- this petition.

Standard of Review

“A petition for the writ of mandamus is the appropriate means by which to challenge a trial court’s order regarding a change of venue. Ex parte Sawyer, 892 So.2d 898, 901 (Ala. 2004). The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows ‘ “ ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ” ’ Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).”

Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala. 2005).

“‘The burden of proving improper venue is. on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). In addition, this Court is bound by the record, and it cannot consider a - statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala. 2002).

Discussion

In his motion to dismiss the case or, alternatively, to transfer the case to the Jefferson Circuit Court, Harding relied upon § 6-3-2, which generally governs venue in actions against individuals. Harding asserted in his motion that, pursuant to § 6-3-2, the only proper venues are Jefferson County, because of his residence there, or Walker County, where his injury allegedly occurred. The AGC Fund and Good Hope argue that § 6-3-7 is the applicable statute governing venue of this case, and that, under that statute, venue is proper in Cullman County.

This case began with the filing of a complaint by the AGC Fund against Harding regarding his claim for workers’ compensation benefits. In Ex parte Adams, 11 So.3d 243, 246 (Ala. Civ. App. 2008), this court held that § 6-3-2 did not apply in an action brought pursuant to the Workers’ Compensation Act; instead, we held that the specific venue provisions in the Workers’ Compensation Act governed the determination of venue. Under the Workers’ Compensation Act, “the court” is defined as “[t]he circuit court that would have jurisdiction in an ordinary civil action involving a claim for the injuries or death in question .... ” § 25-6-1(18), Ala. Code 1975. Section 25-5-81(a), Ala. Code 1975, provides, in pertinent part:

“In case of a dispute between employer and employee ... with respect to the right to compensation under [Article 1 or Article 2 of the Workers’ Compensation Act], or the amount thereof, either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil action in tort between the parties.”

See § 25-5-88, Ala. Code 1975, (“Either party to a controversy arising under [Article 1 or Article 2 of the Workers’ Compensation Act] may file a verified complaint in the circuit court of the county which would have jurisdiction of an action between the same parties arising out of tort ....”).

“Thus, ... any party—employee or employer—desiring an adjudication of the rights and duties of the parties with respect to an injury arising out of and in the course of employment within the scope of [the Workers’ Compensation] Act has been required to seek that adjudication from the same court that, had [the Workers’ Compensation] Act not been adopted, would have heard an employee’s tort claim for damages against the pertinent employer with respect to the injuries or death in question.”

Ex parte Adams, 11 So.3d at 246.

Section 6-3-7 would govern the determination of venue in a hypothetical tort action brought by Harding against Good Hope, a corporation, because that venue statute generally applies to “[a]ll civil actions against corporations.” § 6-3-7(a). Therefore, pursuant to the venue provisions in the Workers’ Compensation Act, § 6-3-7 governs the determination of venue in the workers’ compensation action underlying the present petition. See Ex parte Adams, 11 So.3d at 247 (applying § 6-3-7 to underlying workers’ compensation action). Moreover, Harding’s claim of retaliatory discharge is a tort claim against Good Hope. See Rodriguez-Flores v. U.S. Coatings, Inc., 133 So.3d 874, 885 (Ala. 2013) (“A retaliatory-discharge claim filed pursuant to § 25-5-11.1 [of the Workers’ Compensation Act] is in the nature of a traditional tort claim .... ”); Batey & Sanders, Inc. v. Dodd, 755 So.2d 581, 583 (Ala. Civ. App. 1999) (“[A] claim alleging retaliatory discharge sounds in tort, not in contract.”). Because Good Hope is a corporation, § 6-3-7 also governs the determination of venue for the adjudication of Harding’s retaliatory-discharge claim.

The AGC Fund and Good Hope further argue that Cullman County is a proper venue for the underlying workers’ compensation action pursuant to § 6-3-7(a), which provides:

“All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject .of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

The materials submitted to this court indicate that Good Hope’s principal place of business is in Cullman County. Accordingly, Cullman County is a proper venue for the underlying workers’ compensation action pursuant to § 6-3-7(a)(2).

Harding’s motion to dismiss or, alternatively, to transfer failed to address whether venue was proper pursuant to § 6-3-7, and Harding did not present any evidence to controvert the assertion that Good Hope’s principal place of business is in Cullman County. Therefore, the materials before the trial court established without dispute that venue was proper under § 6-3-7(a)(2). Harding had the burden of proof to show that venue was improper, and the materials before this court do not support his motion. See Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987) (“The burden of proving improper venue is ón the party raising the' issue.... ”). We therefore grant the' petition for the writ of mandamus‘and direct the trial court to vacate its order transferring the action to the Jefferson' Circuit Court, to reinstate the action in Cullman County, and to enter an order denying Harding’s motion to dismiss or, alternatively, to transfer on the basis of improper venue.

PETITION GRANTED; WRIT ISSUED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    EX PARTE Tina WYNN (In re: Tina Wynn v. Deshante Steger)
    2160130
    Court of Civil Appeals of Alabama.
    January 6, 2017
    Steven J. Shaw, Huntsville, for petitioner.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. On December 1, 2015, Deslíante Steger (“the mother”) filed a complaint in the Madison' Circuit Court (“the trial court”) seeking the return of custody of her two children from Tina Wynn (“the maternal grandmother”). The record indicated that the mother had transferred custody of the children to the maternal grandmother approximately five years earlier. The trial court entered a judgment determining that the best interests of the children would be met by modifying custody so as to return custody of the children to the mother. The maternal grandmother ¡appealed, and this court reversed, concluding that the trial court had applied an incorrect custody-modification standard, Wynn v. Steger, 223 So.3d 938 (Ala. Civ. App. 2016). This court held that, under the facts of the cáse, the trial court should have applied the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), and we ordered that the trial court reconsider the facts of the case by applying that standard. Wynn v. Steger, supra.

This court released its opinion in Wynn v. Steger, supra, on October 28, 2016, and our certificate of judgment in that case was entered oil November 16, 2016. Before this court entered its certificate of judgment, the trial court entered two orders on November 4, 2016. In one of those orders, the trial court scheduled the cause for a further evidentiary hearing in April 2017, and, in the other order, the trial court awarded pendente lite custody of the children to the mother. The maternal grandmother filed a purported post-judgment motion, upon which the trial court did not rule and which did not extend the time in which she could seek appellate review of those interlocutory orders. See Malone v. Gainey, 726 So.2d 725, 725 n. 1 (Ala. Civ. App. 1999) (a post-judgment motion may be taken only in reference to a final judgment). Regardless, the maternal grandmother filed a timely petition for a writ of mandamus; she argues that the trial court did not comply with this court’s mandate by awarding pendente lite custody to the mother in its November 4, 2016, order.

This court cannot reach the merits of the maternal grandmother’s argument, however, because the trial court’s November 4, 2016, orders are void. It is well settled that a trial court does not have jurisdiction to enter any order on remand until this court has entered its certificate of judgment. Poole v. Poole, 212 So.3d 261, 262 (Ala. Civ. App. 2016); Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala. Civ. App. 2001); and Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009). This court had not yet entered its certificate of judgment in Wynn v. Steger, supra, when the trial court entered its November 4, 2016, orders, and, therefore, those orders are void for want of jurisdiction. This court does not have jurisdiction to review a void order, and, therefore, the petition for a writ of mandamus is dismissed. Ex parte Key Mgmt. Co., 598 So.2d 1386, 1388 (Ala. 1992).

' PETITION DISMISSED.

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


text:
    HAND CONSTRUCTION, LLC v. Mitchell D. STRINGER
    2150730
    Court of Civil Appeals of Alabama.
    Jan. 13, 2017

      William E. Pipkin, Jr., of Austill, Lewis, Pipkin & Maddox, PC, Mobile, for appellant.
    Sidney W. Jackson III and R. Jeffrey ■Perloff of Jackson & Foster, L.L.C., Mobile, for appellee.
   THOMPSON, Presiding Judge.

Hand Construction, LLC (“Hand”), appeals from a judgment entered by the Mobile Circuit Court (“the trial court”) finding that injuries Mitchell D. Stringer sustained in a motor-vehicle accident in Arkansas are compensable under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala. Code 1975. The trial court awarded Stringer medical benefits and temporary-total-disability benefits accordingly.

The dispositive issue Hand raises on appeal is whether the trial court had subject-matter jurisdiction over this action. The record contains the following evidence relevant to that issue. Stringer lives in Mobile. Hand is a construction contractor whose principal place of business is Shreveport, Louisiana. Hand is licensed to do business in a number of states in the midwestern and southeastern United States, including Alabama. Stringer presented evidence demonstrating that Hand is registered with the Alabama Secretary of State’s office as a foreign entity able to do business in Alabama. Adam Hubble, the chief financial officer for Hand, testified by affidavit that Hand does not maintain an office in Alabama, that Hand has not done business in Alabama in at least ten years, and that Hand has no employees working in Alabama. Stringer acknowledged that Hand did not have any projects in Alabama while he worked for the company.

Stringer testified that, in September or October 2014, Hand’s general superintendent, Allen Bayless, called Stringer in Mobile and asked him whether he would like to work for Hand. Stringer said that he had worked with Bayless in the past. At the time Bayless called Stringer, Bayless was working at the construction site of an apartment complex in Oxford, Mississippi, Stringer said. Stringer testified that, during that telephone conversation, Bayless offered him a job and that he accepted. It appears that Stringer subsequently traveled to Oxford, because he testified that Hand flew him from Oxford to Shreveport to complete his employment application and to submit to a drug test. Stringer also met other Hand executives at that time. However, Stringer said, he “felt like [he] had the job when [he] talked to [Bayless] when he called and offered it to me.”

According to the affidavits of Bayless, Hubble, and the project manager for whom Stringer worked, Peyton Dodd, Hand hired Stringer in Shreveport on October 9, 2014. Stringer testified that he first worked for Hand at a construction site in Louisiana. Then, in April 2015, Stringer was sent to supervise site preparation for the construction of an apartment complex (“the project”) in Williston, North Dakota.

Stringer testified that from April 2015 to' October 2015 he would work for ten days in North Dakota then return to his home in Mobile for four or five days. When he was in Mobile, he said, he did work for Hand from his house using the laptop computer Hand had issued to him. For example, he said, he would talk by telephone to or respond to e-mail from suppliers and subcontractors connected to the project. In addition, Stringer said, while he was in Alabama, he took a first-aid course that Hand required. Hand paid, for the course, he said.

In his affidavit, Dodd, the project manager, testified that Stringer did not spend any of his time working in the service of Hand while he was ih Alabama. “[A]ny time spent in Alabama was during [Stringer’s] time off,” Dodd said. In his affidavit, Hubble corroborated Dodd’s testimony, saying that Stringer never performed work for Hand in Alabama.

The evidence was undisputed that Hand paid for Stringer’s housing while he was in North Dakota. The evidence was also undisputed that, during the time Stringer was employed on the project, he had money withheld for state income taxes in North Dakota but did not have money withheld for Alabama state income taxes.'

Stringer testified that on October 6, 2015, he met with John Provost, a manager of Hand, in Shreveport at Provost’s request. At that time, Provost notified Stringer that the job in North Dakota was finished and that Hand did not have sufficient work to retain him. Stringer said that Provost told him that Hand realized he had a pickup truck and some personal items in North Dakota and that Provost wanted Stringer to return to North Dakota to retrieve his personal belongings as well as Hand’s equipment. Stringer said that Hand would save a lot of money if he brought the equipment back with him in his truck. Stringer said that, once he arrived in Mobile, he was to ship the items from Mobile to Shreveport.

The “notice of 'termination/separation” form included in the record indicates that Stringer’s “date of separation” was October 5, 2015. The notice also states: “Will pay through current + 1-week severance.” Stringer’s signature does not appear on the notice, and he said he was not aware of his layoff until October 6, when he met with Provost. Stringer testified that he worked with Hand until October 10, 2015, when the accident occurred.

Hand paid for Stringer to fly from Mobile to North Dakota on October 8, 2015, to collect certain equipment that belonged to Hand and that Stringer had used while he was-working on the project. Stringer said that he packed the equipment and his personal belongings in his pickup truck and set out on his return trip to Mobile. Stringer testified that on October 10, 2016, as he was en route to Mobile, he was involved in a motor-vehicle accident in Arkansas. Stringer suffered multiple injuries in the accident. Hand has not challenged that, at the time of the accident, Stringer was an employee of Hand. The record includes the “Workers Compensation— First Report of Injury or Illness” form that Hubble completed. That form indicates that Hand was notified of Stringer’s accident and injuries on October 12, 2015.

The form also indicates that Louisiana has jurisdiction over the claim.

On May 4, 2016, the trial court entered a judgment in which it concluded that it had jurisdiction over this matter pursuant to § 25-5-35(d)(2), Ala. Code 1975. Specifically, the trial court found that, at the time the accident occurred, Stringer was “working under a contract of hire made in this state in employment not principally localized in any state.” The trial court went on to find that, at-the time-of the accident, Stringer’s employment with Hand for the work done in North Dakota had been terminated and that Stringer and Hand had entered into a “subsequent contract for hire when Hand requested [Stringer] to return to North Dakota to retrieve some of its equipment that was there.” As noted earlier, the trial court awarded Stringer medical benefits and temporary-total-disability benefits under the Act. Hand timely appealed from the trial court’s judgment.

“Our standard of review in workers’ compensation cases was prescribed by the Legislature in Ala. Code 1975, § 25-5-81(e)(2). We recently set. forth that standard, as well as the other applicable presumptions:
. “ ‘When this court reviews a trial court’s factual findings in a workers’ compensation case, those findings will not be reversed if they are supported by substantial evidence. § 25-5-81(e)(2), Ala. Code 1975. Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989). Further, this court reviews the facts “in the light most favorable to the findings of the trial court.” Whitsett v. BAMSI, Inc., 652 So.2d 287, 290 (Ala. Civ. App. 1994), overruled on other grounds, Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala. 1996). This court has also concluded: “The [1992 Workers’ Compensation] Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala. Civ. App. 1995). However, our review as to purely legal issues is without a presumption of correctness. See Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala. Civ. App. 2002) (citing § 25-5-81(e)(1), Ala. Code 1975).’ ’
“Reeves Rubber, Inc. v. Wallace, 912 So.2d 274, 279 (Ala. Civ. App. 2005).”

Overnite Transp. Co. v. McDuffie, 933 So.2d 1092, 1095-96 (Ala. Civ. App. 2005).

Section 25-5-35(d)(2), the statute pursuant to which the trial court found that the Act applies in this case, allows an employee to recover workers’ compensation benefits under the Act for injuries he or' she sustained while working outside the Staté of Alabama when he or she “was working under a contract of hire made in this state in employment not principally localized in any state.” That statute “establishes a two-pronged test for determining whether an out-of-state injury is compensable under Alabama law. First, the contract of employment must have been made in Alabama. Second, the. worker’s employment must not have been principally localized in any one. .state.” Sims v. Leland Roberts Constr., Inc., 671 So.2d 106, 108 (Ala. Civ. App. 1995).

Section 25-5-35(b), Ala. Code 1975, provides:

“[A] person’s employment is principally localized in this or another state -when his employer has a place of business in this or such other state and he regularly works at or from such place of business, or if he is domiciled and- spends a -substantial part of his working time in the service of his -employer in this or such other state.” ’

In Ex parte Fluor Contractors International, 772 So.2d 1157, 1159 (Ala. 2000), our supreme court stated: .

“The words in § 25-5-35(b), given their plain meaning, do -not require that, in order for a worker’s employment to be ‘principally localized’.within a particular state, the employer’s headquarters or corporate office be in that state, but merely that the employee work for that employer at a designated place within that state.”

This court considered the issue of whether a person’s employment was “principally localized” in a certain state in Sims, supra. In that case,

“this court discussed whether-’ an Alabama employee who alleged that he had been injured while working on a pipeline in Indiana ‘regularly worked’ in Indiana pursuant to § 25-5-35(b). The employee sued his employer for workers’ compensation benefits pursuant to the Alabama Workers’ Compensation Act. [Sims, 671 So.2d] at 107. The trial court dismissed the employee’s action because the trial court found that the employee’s employment was principally -localized in Indiana. Id. at 108. On appeal, the employee in Sims argued that his employ:ment was not principally localized in Indiana because he had worked on the pipeline in both Ohio and Indiana. Id. The employee resided in a hotel in Indiana during the four months that he worked on the pipeline. Id. In concluding that the employee’s employment at the time of his alleged injury was principally localized in Indiana, this court-stated that ‘[d]espite the fact that [the employee] “sometimes” worked in Ohio and was available for work there and possibly other states, it is clear that [the employee’s] employer had a place of business in Indiana and that [the employee] regularly worked at or from that place of business.’ Id. at 109.”

Ex parte Fluor Corp., 960 So.2d 701, 705 (Ala. Civ. App. 2006). See also Associated Gen. Contractors Workers Comp. Self Ins. Fund v. Williams, 982 So.2d 557, 560 (Ala. Civ. App. 2007).

Similarly, in this case, the evidence demonstrates that Stringer was working for Hand supervising site preparation for the project in North Dakota. For approximately six months, he would work ten days in North Dakota and then return to Mobile for four or five days. Although he might have taken telephone calls, responded to emails, and done other tasks while he was in Mobile, such work was incidental to his job as the supervisor of site preparation for the project. Dodd, the project manager, testified in his affidavit that, as the site-preparation supervisor on the project, Stringer’s “physical presence” at the project site was necessary for the “site work” to be done. While in North Dakota, Stringer lived in housing provided by Hand. Stringer’s state income taxes were withheld in North Dakota, and he was listed as a Hand employee in North Dakota for that state’s workers’ compensation purposes. There is no doubt that Stringer “regularly worked” and spent a “substantial part” of his working time at the project site in North Dakota. The fact that Stringer was returning equipment for Hand from the project site when his work in North Dakota was completed does not alter that determination. Thus, we conclude that substantial evidence does not support the trial court’s finding that, at the time of the accident, Stringer’s employment “was not principally localized in any state.” Accordingly, the trial court erred in finding that Stringer was entitled to recover benefits pursuant to § 25-5-35(d)(2). See Ex parte Fluor Corp., supra.

As to the trial court’s finding that Stringer had entered into a second contract for hire and was working for Hand pursuant to that contract at the time the accident occurred, there is no evidence to support a finding that, to the extent such a contract might arguably have existed, it was formed in Alabama. Section 25-5-35(d)(3) provides that the Act applies to a person who suffers a work-related injury while working outside Alabama if, at the time of his or her injury, he or she “was working under a contract of hire made in this state in employment principally localized in another state whose workers’ compensation law was not applicable to his employer.” Assuming for purposes of this opinion only that Hand had entered into a second employment contract with Stringer to travel to North Dakota to retrieve equipment, the evidence shows that Stringer and Provost were in Shreveport at the time Provost instructed Stringer to make that trip. To the extent that their conversation constituted the formation of a second employment contract between Stringer and Hand, there is no evidence to suggest that that contract was formed anywhere other than in Louisiana. Thus, substantial evidence also does not support the trial court’s determination that Stringer was entitled to recover benefits pursuant to a second contract for hire because any such contract was not formed in Alabama. § 25—5—35(d).

Finally, in our review of the record we found no evidence that would indicate that no other state, particularly North Dakota or Louisiana, would have jurisdiction over Stringer’s workers’ compensation claim for benefits in connection with the injuries he received in the motor-vehicle accident, as § 25-5-35(d)(3) requires. In his brief on appeal, without citing any authority, Stringer contends that Hand bore the burden of proving that the workers’ compensation law of no other state was applicable in his case. He cites no authority for that proposition, however. In fact, Alabama law is contrary to Stringer’s contention. In Ex parte Dalton Logistics, 167 So.3d 337, 339-40 (Ala. Civ. App. 2014), this court held that an employee seeking benefits must demonstrate that another state’s workers’ compensation laws do not apply to the employer so as to support a conclusion that an Alabama court has jurisdiction under the Act to hear the employee’s workers’ compensation claim. See § 25-5-35(d). Accordingly, Stringer—not Hand—bears the burden of proving that the Act is applicable in this case. The record indicates that he failed to meet that burden.

The trial court’s determination that it had jurisdiction to consider Stringer’s workers’ compensation claim was based on findings not supported by the evidence. Accordingly, we conclude that the trial court erred in finding that it had subject-matter jurisdiction over Stringer’s workers’ compensation claims. The judgment is therefore reversed, and the cause is remanded to the trial court for the entry of a judgment dismissing Stringer’s workers’ compensation action. Rule 12(b)(1), Ala. R. Civ. P.; Sims, supra.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Moore, J., recuses himself.

      , We note that neither parly had presented such a theory to the trial court and that neither party makes an argument in support of that theory on appeal,

      . In his brief to this court, Stringer states that there is no evidence that Hand purchased "extra territorial coverage” for its workers’ compensation coverage for the North Dakota. Whether Hand had the proper insurance coverage would be an issue to be determined by the court with subject-matter jurisdiction. The issue of insurance coverage itself does not determine whether the laws of the State of North Dakota are applicable in this case. See, e.g., Ex parte Dalton Logistics, 167 So.3d 337, 340-41 (Ala. Civ. App. 2014).


author: WELCH, Judge.

text:
    Charles Sanchase WHITE v. STATE of Alabama
    CR-15-0290
    Court of Criminal Appeals of Alabama.
    Oct. 21, 2016
    Rehearing Denied December 9, 2016
    Certiorari Denied February 17, 2017
    Alabama Supreme Court 1160241

      Laura Summerford Chism, Tuscaloosa, for appellant.
    Luther Strange, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
   On Application for Rehearing

WELCH, Judge.

This Court’s unpublished memorandum dated August 5, 2016, is withdrawn and the following opinion is substituted therefor. . Charles Sanchase White was indicted for the attempted murder of Deputy Sheriff Antonio Bostic. White was convicted for the lesser-included offense of attempted first-degree assault. See §§ 13A-4-2 and 13A-6-20(a)(l), Ala. Code 1975. He was sentenced to 20 years in prison. White appeals.

The evidence at trial tended to show that the following events took place on the late evening of November 25, 2013, and into the early morning of November 26, 2013. Acting on a tip that a burglary might take place at a particular location by a man armed with a pistol, Deputy Bostic parked his unmarked police . vehicle, a truck, in a driveway of an abandoned home near the location of the possiblé burglary. Bostic testified that he was alone inside his truck and that his truck was “completely blacked out so no one could see [him].” (R. 210.) Bostic was wearing his “class' B” uniform, which includes a blue vest with an embroidered badge and the word “Sheriff,” and a name tag. Bostic testified that he was “clearly identifiable” as a law-enforcement officer. (R. 222.) White arrived near Bostic’s location and began to walk toward Bostic’s truck. At that time it was dark, cold, and raining. White was wearing a red “hoodie” and his hands were concealed inside the pockets of the hoodie. (R. 220.) White approached Bostic’s truck, and as White “came around-to the left quarter panel” of Bostic’s truck, Bostic quickly got out of the truck with -bis pistol drawn, and, in a manner Bostic described as “yelling,” Bostic identified himself as a law-enforcement officer and commanded White to show his hands. (R. 260.) It was Bostic’s testimony that. White’s “initial reaction” was to retreat toward the front of Bostic’s vehicle; however, Bostic testified, White “stopped, he turned around” toward Bostic, he “[brought] up his arm,” point[ed] a gun “at [Bostic],” and as Bostic “ducked for cover,” White fired a gunshot toward Bostic, but missed Bostic. (R. 222, 223, 248-49, 261.)' Bostic testified that he saw the flash from the muzzle of White’s pistol and that there was “no doubt in [his] mind that a shot was fired at [him].” (R. 262.) Bostic immediately rose from his crouched position and fired two gunshots toward White. Both gunshots missed White. White ran into the nearby woods where he discarded his pistol and continued to evade police for a brief period before being captured;

White was charged with attempted murder under § 13A-6-2(a)(l), Ala. Code 1975. He was convicted of the lesser included offense of attempted first-degree assault, as defined in § 13A-6-20(a)(l), Ala. Code 1975.

White contends on appeal, as he did at trial, that there was a reasonable theory from the evidence, if believed by the jury, to support a jury charge on the lesser offenses of attempted second-degree assault under § 13A-6-21(a)(2), Ala. Code 1975, and menacing, § 13A-6-23, Ala. Code 1975. Therefore, he contends that the trial court erred in refusing his requested jury instructions on those lesser offenses.

I.

White contends that the trial court erred when it refused to instruct the jury on attempted second-degree assault.

“‘“A trial court has broad discretion in formulating its jury instructions, providing they are an accurate reflection of the law and facts of the case. Coon v. State, 494 So.2d 184 (Ala.Cr.App. 1986). When requested charges are either fairly and substantially covered by the trial judge’s oral charge or are confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law, the trial judge may properly refuse to give such charges. Ex parte Wilhite, 485 So.2d 787 (Ala. 1986).
“ Ward v. State, 610 So.2d 1190, 1194 (Ala.Cr.App. 1992).’

“Hemphill v. State, 669 So.2d 1020, 1021 (Ala.Crim.App. 1995). Further,

“ ‘ “ ‘A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.’ MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App. 1997). An accused has the right to have the jury charged on ‘ “any material hypothesis which the evidence in his favor tends to establish.” ’ Ex parte Stork, 475 So.2d 623, 624 (Ala. 1985). ‘[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, howeverf ] weak, insufficient, or doubtful in credibility,’ Ex parte Chavers, 361 So.2d 1106, 1107 (Ala. 1978), ‘even if the evidence supporting the charge is offered by the State.’ Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala. 1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, ‘[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.’ § 13A-l-9(b), Ala. Code 1975. ‘The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.’ Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App. 2000), aff'd, 825 So.2d 233 (Ala. 2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury,” ’ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App. 1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App. 1987).”
“ ‘Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App. 2000) (opinion on return to remand).’
“Harbin v. State, 14 So.3d 898, 909 (Ala.Crim.App. 2008).”

McDaniels v. State, 200 So.3d 1179, 1184-85 (Ala. Crim. App. 2015). Additionally,

“Subsection (1) of § 13A-l-9[, Ala. Code 1975,] provides that an offense is a lesser-included offense if it is established by proof of the same or fewer than all the facts required to establish the charged offense. Subsection (4) provides that an offense is a lesser-included offense if it differs from the charged offense only in the respect that a lesser kind of culpability suffices to establish its commission.”

Crawford v. State, 886 So.2d 846, 848 n.1 (Ala. Crim. App. 2003).

White was charged with attempted murder under § 13A-6-2(a)(l). Murder, a Class A felony, is defined in § 13A-6-2(a)(1) as: ‘With intent to cause the death of another person, [a person] causes the death of that person or of another person.”

An “attempt” to commit a crime is defined in § 13A-4-2 as:

“(a) A’ person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act' towards the commission of such offense.”

First-degree assault is defined as:

“(a) A person commits the crime of assault in the first degree if:
“(1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument.”

§ 13A-6-20(a)(l), Ala. Code 1975.

“Serious physical injury” is defined as “[p]hysical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” § 13A-l-2(9), Ala. Code 1975. The intent to cause serious physical injury can be inferred from the defendant’s actions. See James v. State, 654 So.2d 59 (Ala. Crim. App. 1994); Edwards v. State, 597 So.2d 1386 (Ala. Crim. App. 1992).

A “deadly weapon” is defined as:

“A fíreárm or anything manifestly designed, made, or adapted for the purposes of inflicting death or serious physical injury. The term includes, but is not limited to, a pistol ,... ”

Section 13A-l-2(7), Ala. Code 1975.

The trial court refused to instruct the jury on attempted second-degree assault as White requested.

Second-degree assault, a Class C felony, is defined in § 13A-6-21(a)(2), Ala. Code 1975, as follows:

■ “(a) A person commits the crime of assault in the second'degree if the person does any of the following:
, “(2) With intent to cause physical injury to another person, he or she causes physical injury to any person by means of a deadly weapon or . a dangerous instrument.”

An attempted second-degree assault is a Class A misdemeanor. § 13A-4-2(d)(4), Ala. Code 1975. “Physical injury” is defined as “[impairment of physical condition or substantial pain.” § 13A-l-2(8), Ala. Code 1975. Attempted second-degree assault can be a lesser-included offense of attempted murder. Johnson v. State, 675 So.2d 85, 86-87 (Ala. Crim. App. 1995)(“[A] defendant may be entitled to a 'charge on assault .in the second degree as a lesser included offense to attempted murder.”); Sorrells v. State, 667 So.2d 142 (Ala. Crim. App. 1994).(appellant charged with attempted murder was found guilty of the lesser-included offense of attempted second-degree assault); and Reed v. State, 717 So.2d 862, 865 (Ala. Crim. App. 1997)(“Second-degree assault differs from first-degree assault only in that the injuries inflicted in first-degree assault are serious physical injuries.”).

The question of the type of harm White intended to inflict on Deputy Bostic was for the jury to resolve. “ ‘Because the element of intent, being [a] state of mind or mental purpose, is usually incapable of direct proof, it may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances.’ ” Benton v. State, 536 So.2d 162, 164 (Ala. Crim. App. 1988)(quoting Johnson v. State, 390 So.2d 1160, 1167 (Ala. Crim. App. 1980)). “The question of a defendant’s intent at the time of the commission of the crime is usually an issue for the jury to resolve.” Rowell v. State, 570 So.2d 848, 850 (Ala. Crim. App. 1990), citing Crowe v. State, 435 So.2d 1371, 1379 (Ala. Crim. App. 1983). The jury rejected the greater offense, attempted murder, which required the jury to find- that White intentionally attempted to kill- Deputy Bostic. The only lesser offense presented to the jury-was attempted first-degree assault—an offense requiring proof that White committed an overt act toward causing serious physical injury to Deputy Bostic by means of a deadly weapon. Attempted assault in the second degree*—an overt act toward, causing physical injury by means of a deadly weapon—differed from attempted murder and from attempted first-degree-assault only in regard to the level of intended physical injury. Reed v. State, 717 So.2d 862, 865 (Ala. Crim. App. 1997)(“Second-degree assault , differs from first-degree assault only in that the injuries inflicted in first-degree assault are serious physical injuries.”). Thus, in this case, second-degree , assault was a lesser-included offense of attempted murder because it was established by proof of the same or fewer than all the facts required to establish the commission of that offense, and it differed from attempted murder only in the respect that a less serious injury or risk of injury to the same person existed. Therefore, an instruction on second-degree assault should have been given to the jury, and the trial court erred in refusing to instruct the jury, on the lesser-included offense of second-degree assault.

II. ■

White contends that the trial court erred when it refused to instruct the jury on what he contends was the lesser-included offense of menacing.

Menacing, a Class B misdemeanor, is (jefined in § 13A-6-23, Ala. Code 1975, as:

“(a) A person commits the crime .of menacing ¾ by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.”

White was entitled to a jury instruction on menacing if there was a reasonable theory from the evidence indicating that White, “by physical action ... intentionally place[d] or attempted] to place” Deputy Bostic “in fear of imminent serious physical injury,” § 13A-6-23, Ala. Code 1975. As with second-degree assault, there was evidence to support a finding of menacing, if the jury determined that by discharging a gunshot at or toward Deputy Bostic it was White’s intent to place or attempt to place Deputy Bostic in fear of imminent serious physical injury.

“The offense of attempted murder is established by showing that, with intent to commit murder, the appellant did some overt act toward the commission of that offense. § 13A-4-2(a), Code of Alabama 1975. ‘A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury.’ Menacing encompasses the situation where ‘ “physical injury” is neither inflicted nor intended.’ Commentary, § 13A-6-23, Code of Alabama 1975.”

Nelson v. State, 595 So.2d 506, 510 (Ala. Crim. App.), rev’d on other grounds, Ex parte Nelson, 595 So.2d 510 (Ala. 1991). See Walker v. State, 137 So.3d 943 (Ala. Crim. App. 2013)(defendant was convicted of menacing after discharging a firearm into an occupied vehicle).

The trial court’s refusal to charge the jury on menacing was error.

III.

“The failure to charge on a lesser-included offense may, in some circumstances, be harmless error.” McNabb v. State, 887 So.2d 929, 977 (Ala. Crim. App. 2001), citing Baker v. State, 906 So.2d 210, 265 (Ala. Crim. App. 2001), rev’d on other grounds, Ex parte Baker 906 So.2d 277 (Ala. 2004)(citing Baker, McNabb explains that, in Baker, “the trial court’s failure to charge the jury on reckless murder and felony murder was, at most, harmless error, where the jury was charged on capital murder, intentional murder, reckless manslaughter and heat-of-passion manslaughter and the jury found the defendant guilty of capital murder.” McNabb, 887 So.2d at 977.) However, the failure to charge the jury on a lesser-included offense is not always harmless error. In Crawford v. State, 886 So.2d 846 (Ala. Crim. App. 2003), Crawford was indicted for reckless murder. The jury rejected the greater offense, reckless murder and, instead, found Crawford guilty of the lesser offense of manslaughter. This Court agreed with Crawford’s contention that the trial court erred when it refused his requested jury instruction on the lesser offense of vehicular homicide. This Court held that, under the facts, “[t]he trial court’s failure to give the charge was not harmless error because, had the jury been given the option, it might have found Crawford guilty of the lesser offense of vehicular homicide.” Crawford, 886 So.2d at 849. Citing Culpepper v. State, 827 So.2d 883 (Ala. Crim. App. 2001), the Crawford Court stated, “ ‘[n]othing in the jury’s verdict supported] the contention that it could not have returned a verdict on the offense of vehicular homicide, had it been given that option.’” Crawford, 886 So.2d at 849 (quoting Culpepper, 827 So.2d at 886-87). The same is true in White’s case. In addition to attempted first-degree assault, the evidence supported other viable lesser-included offenses; thus, the jury should have been given the option to decide the level of culpability it found based on the evidence.

Conclusion

For the reasons set forth above, this Court cannot find the failure to charge the jury on attempted second-degree assault and menacing to be harmless error. Therefore, White’s conviction for first-degree assault is reversed and this case is remanded for proceedings consistent with this opinion.

APPLICATION GRANTED; UNPUBLISHED MEMORANDUM of AUGUST 5, 2016, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

Windom, P.J., and Burke and Joiner, JJ., concur. Kellum, J., not sitting.


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: J.P.B.
    CASE NO.: SC17-1677
    Supreme Court of Florida.
    SEPTEMBER 22, 2017
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and J.P.B. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of five years from August 24, 2016.
2. During the period of probation, the applicant shall:
(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on August 24, 2016, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the Alcoholics/Narcotics Anonymous message to other substance dependent individuals;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance, Inc.;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by Florida Lawyers Assistance, Inc.;
(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d) (e), and (f) above.
3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.
4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.
5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of • any grievance or complaint related to the applicant’s practice of law.
6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the .Court, an order of suspension shall remain in effect until final disposition of the . grievance procedures commenced by The Florida Bar against the; appli.cant.
8. If circumstances so warrant it, the applicant and The Florida' Bar may • stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an exten- • sion with a final decision to be made by the Court.
9. The. applicant acknowledges, that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation bé extended pursuant to either paragraph 7 or 8 above, the Applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.
10.The applicant specifically consents to and authorizes the release of any and , all materials in the Applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under the Consent Agreement.


author: PER CURIAM.

text:
    Cary Michael LAMBRIX, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC17-1608
    Supreme Court of Florida.
    [September 26, 2017]

      Neal A. Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Bryan E. Martinez, Staff Attorney, Capital Collateral Regional Counsel-Southern Region, Fort Lauderdale, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Scott A. Browne, Senior Assistant Attorney General, and C. Suzanne Bechard, Assistant Attorney General, Tampa, Florida, for Respondent
   PER CURIAM.

Cary Michael Lambrix, a/k/a Michael Ray Lambrix, a prisoner under a sentence of death for the 1983 murders of two victims—Aleisha Bryant and Clarence Moore, Jr., a/k/a Lawrence Lamberson—whose execution is scheduled for October 6, 2017, petitions this Court for a writ of habeas corpus. See Lambrix v. State, 494 So.2d 1143, 1145 (Fla. 1986). We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons fully explained below, we deny Lambrix’s petition for a writ of habeas corpus.

BACKGROUND

On direct appeal, this Court explained the facts underlying Lambrix’s crimes:

On the evening of February 5, 1983, Lambrix and Frances Smith, his roommate, went to a tavern where they met Clarence Moore, a/k/a Lawrence Lam-berson, and Aleisha Bryant. Late that evening, they all ventured to Lambrix’[s] trailer to eat spaghetti. Shortly after their arrival, Lambrix and Moore went outside. Lambrix returned about twenty minutes later and-requested Bryant to go outside with him. About forty-five minutes later Lambrix returned alone. Smith testified that Lambrix was carrying a tire tool and had blood on his person and clothing. Lambrix told Smith that he killed both Bryant and Moore. He mentioned that he choked and stomped on Bryant and hit Moore over the head. Smith and Lambrix proceeded •to eat spaghetti, wash up and bury the two bodies behind the trailer. After burying the bodies, Lambrix and Smith went back to the trailer to wash up. They then took Moore’s Cadillac and disposed of the tire tool and Lambrix’fs] bloody shirt in a nearby stréam.

Lambrix, 494 So.2d at 1145. Lambrix’s sentences of death became final in 1986 and have been litigated continuously since that time.

As this Court has stated, Lambrix’s “death case ... has been in the judicial system for a substantial period of time.” Lambrix v. State, 39 So.3d 260, 262 (Fla. 2010). This Court has explained that “the lengthy procedural history [in Lambrix’s case] is in part due to the continued attempts by Lambrix to file pleadings both with the postconviction court and with this Court that do not establish any viable claim pertaining to his guilt or the validity of the death penalty imposed.” Lambrix v. State, 124 So.3d 890, 893 (Fla. 2013); see Lambrix v. State, 217 So.3d 977, 988 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017). Indeed, despite this Court determining in 2013 that Lambrix had “exhausted all permissible legal remedies in his ease,” Lambrix has continued to raise repetitive state and federal claims. Lambrix, 124 So.3d at 900.

After the Governor scheduled Lambrix’s execution for February 11, 2016, Lambrix had yet another opportunity to challenge his convictions and sentences. See generally Lambrix, 217 So.3d 977. This Court stayed Lambrix’s execution to address the application of Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), to his case. Lambrix, 217 So.3d at 980. After considering Lambrix’s various arguments, this Court affirmed the circuit court’s denial of Lambrix’s successive motion for postconviction relief, denied Lam-brix’s separate petition for a writ of habeas corpus, and lifted the stay on Lambrix’s execution. Id. at 989-90.

ANALYSIS

In his pending petition, filed on August 31, 2017, the day before his current execution was rescheduled, Lambrix raises the following claims: (1) based on the constitutional prohibition against the execution of an innocent person and fundamental principles of due process, he is entitled to a cumulative review of all the evidence which will establish a truly persuasive showing of his actual and legal innocence; (2) this Court must fully address the denial of Lambrix’s right to testify; and (3) Lam-brix was unconstitutionally denied access to materials that may contain DNA evidence. The State argues that Lambrix’s claims lack merit and are improper as duplicative of formerly litigated claims.

I. Cumulative Review of Evidence Supporting Actual and Legal Innocence

In his first claim, Lambrix contends that “Florida law provides an avenue for state court review of [his] claims of actual and legal innocence.” Pet. for Writ of Habeas Corpus, Lambrix v. Jones, No. SC17-1608, at 10. Specifically, Lambrix argues that neither the jury in his case, nor any state or federal court, has ever conducted a cumulative review of “all the readily available evidence” that would “establish that Lambrix is actually or legally innocent of each of the two murders.” Pet. at 15-16.

Lambrix claims that Moore killed Bryant, and he, in turn, killed Moore in self-defense. This belated theory of self-defense emerged three years after the actual trial (1984) at his first clemency proceeding (1987), when clemency counsel provided a “live transcribed statement” which he claimed “included a description of Lambrix’s account.” Pet. at 29. Lambrix later testified to this theory at an eviden-tiary hearing on his successive postconviction motion, as we explained in our 2010 opinion:

According to Lambrix, he told Smith the following account: after he invited both victims outside, Bryant and Moore began to fight, so Lambrix attempted to leave. On his way back, he heard a scream, grabbed a tire iron, and ran back. He saw Moore straddling Bryant and tried to push him off. Moore attempted to “come at [him],” so he continued to swing the tire iron at Moore until he realized that Moore “was down.” He denied that he ever admitted to killing either victim on purpose.

Lambrix, 39 So.3d at 271.

There is no evidence, other than Lam-brix’s self-serving belated assertions of self-defense, that supports his theory. In fact, in his initial posteonviction motion, his appeal from the circuit court’s denial of his initial postconviction motion, and his initial petition for a writ of habeas corpus, Lam-brix’s arguments focused on “his consumption of alcohol” the night of the crimes and the defense of voluntary intoxication. Lambrix v. State, 534 So.2d 1151, 1151 (Fla. 1988); see Lambrix v. Dugger, 529 So.2d 1110 (Fla. 1988). This Court denied the petition for a writ of habeas corpus, concluding that the “evidence was not sufficient to show intoxication.” Lambrix, 529 So.2d at 1112.

As part of his claim of actual innocence, Lambrix alleges that certain evidence entitles him to an evidentiary hearing at which he would prove his innocence: (1) inconsistencies in and lack of credibility for witness Frances Smith’s testimony, (2) witness Deborah Hanzel’s recantation, and (3) his consistent claim of self-defense. Lam-brix also argues that the denial of his right to testify and denial of access to DNA evidence contribute to his innocence claim. We address these arguments in Claims II and III, respectively, below. After reviewing this Court’s prior opinions regarding Lambrix’s assertions, we address the specifics of Lambrix’s freestanding claim of innocence.

A. Frances Smith’s Testimony

As to Smith, Lambrix argues that newly discovered evidence discredits her testimony, which was the lynchpin of the State’s case at trial. On direct appeal, this Court denied Lambrix’s claim that the trial court erred by limiting his cross-examination of Smith. Lambrix, 494 So.2d at 1146-47. Lambrix also raised this claim in the federal district court, which denied the claim. See Lambrix v. Dugger, No. 88-12107-Civ-Zloch (S.D. Fla. May 12, 1992). On appeal, the United States Court of Appeals for' the Eleventh Circuit affirmed the denial. Lambrix v. Singletary, 72 F.3d 1500, 1503 & n.3 (11th Cir. 1996), aff'd, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

In his third postconviction motion, Lam-brix argued that the State withheld exculpatory or impeachment evidence involving a sexual relationship between Smith and a state attorney investigator. Lambrix, 39 So.3d at 266. Reviewing the trial court’s finding that no sexual relationship occurred, this Court determined that even if a sexual relationship existed, Lambrix could not show prejudice. Id. at 269. The Eleventh Circuit also denied this claim and others related to Smith’s testimony in denying Lambrix’s application for leave to file a second or successive federal habeas petition alleging the existence of new claims. In re Lambrix, 624 F.3d 1355, 1358, 1368 (11th Cir. 2010).

In his fourth postconviction motion, Lambrix argued that new evidence showed that two hairs found on the murder weapon matched Smith’s DNA. Lambrix, 124 So.3d at 894-95. This Court affirmed the postconviction court’s denial of Lambrix’s motion, holding that Lambrix failed to explain how.Smith’s .hair would exonerate him or even cast doubt on Smith’s testimony. Id. at 895-96.

B. Deborah Hanzel’s Recantation

As to witness Deborah Hanzel, Lambrix argues that shé is the only "witness at trial who corroborated Smith’s testimony of Lambrix’s confession to killing the victims. He also contends that her subsequent recantation supports his claim of actual innocence^ In 2010, this Court reviewed Lam-brix’s claim that “the postconviction court erred in failing to find that witness Deborah Hanzel recanted and that Smith and a state agent coerced her to lie.” Lambrix, 39 So.3d at 270. This Court explained that “Hanzel was one of the witnesses who testified at both the initial trial and the second trial as to certain incriminating statements that Lambrix allegedly made.” Id. Later, during successive postconviction proceedings, Hanzel made statements— both written and oral—that contradicted her testimony at trial. Id. at 271. After holding two evidentiary hearings, the post-conviction court determined that “Hanzel’s testimony never met the legal requirements for a recantation.” Id. at 271-72.

Upon review, this Court determined that the postconviction court’s findings were supported by competent, substantial evidence. Id. at 272. Further, this Court determined that “if Hanzel had not testified at trial that Lambrix stated he killed two people, the recantation would not be of such a nature that it would ‘probably produce an acquittal or retrial.’” Id. This Court reasoned:

Hanzel was not the main witness to testify against Lambrix. Even without her ■testimony, there would still be the testimony of Lambrix himself at this most recent evidentiary hearing that he struck one of the victims using a tire iron, although he denied that he intended to kill either victim. Further, there • was other significant evidence at the trial that pointed to Lambrix as the perpetrator of these murders. This evidence included the following: Smith’s testimony regarding the murders and that Lambrix threatened her if she did not help him bury the bodies; Deputy Sheriff Ron Council’s testimony that he saw Lambrix and Smith with the victims on the night of the murders; John Che-zum’s testimony that on February 6 around 2:30 in the morning, Lambrix drove up in a car that resembled the victims’ car and asked to borrow a shovel; and the victims were found buried near the trailer in which Lambrix was living."

Id. at 273.

C. Self-Defense

In the pending petition, Lambrix claims that he has consistently pled a theory of self-defense. A review of the record reveals otherwise. As we explained above, this theory was not presented at trial, on direct appeal, or in Lambrix’s .original postconviction motion. For all these reasons, we conclude that Lambrix’s delayed and unsupported theory of self-defense does not establish a claim of actual innocence.

D. Whether Lambrix May Raise a Freestanding Claim of Innocence

Lambrix further argues that due .process requires a cumulative review of all the evidence supporting his claim of actual innocence. However, this. Court has reviewed multiple times the evidence Lambrix has claimed would establish his innocence and has consistently concluded that Lambrix has not shown that any of this evidence “would probably produce an acquittal or ... mitigate his sentence.” Lambrix, 124 So.3d at 896.

In addition to this Court’s review of Lambrix’s claims over the course of the past thirty years, in Tompkins v. State, 994 So.2d 1072 (Fla. 2008), this Court “rejected the claim that Florida’s failure to recognize a freestanding actual innocence claim violates the Eighth Amendment.” Id. at 1089 (citing Rutherford v. State, 940 So.2d 1112, 1117 (Fla. 2006)). Thus, this Court does not recognize Lambrix’s claim. In fact, in our 2010 opinion, we rejected Lambrix’s claim that he was entitled to a new trial because he was actually innocent, explaining:

We reject without discussion Lam-brix’s claim that he,is entitled to reliti-gate whether he is innocent of the crime based on Schlup v. Delo, 513 U.S. 298, 116 S.Ct. 851, 130 L.Ed.2d 808 (1995). Lambrix mischaracterizes the holding of Schlup, which does not provide a freestanding claim to relitigate claims that are procedurally barred.

See Lambrix, 39 So.3d at 266, n.10.

On direct appeal, this Court specifically found that sufficient evidence “supported] a finding that Lambrix committed the two murders in question,” and, after careful consideration, rejected each of Lambrix’s claims of error in the guilt phase. Lambrix, 494 So.2d at 1145, 1148. Since then, this Court, and the federal courts have reviewed Lambrix’s various-claims for relief; each time, Lambrix’s convictions and sentences have been affirmed. Whether considered individually or cumulatively, Lam-brix has not established that he would be entitled to a new trial based on “actual innocence.” Thus, we conclude. that Lam-brix is not entitled to relief on this claim. We address Lambrix’s other substantive claims below,

II. Denial of the Right to Testify and Present a Defense

The Eleventh Circuit previously rejected Lambrix’s claim that his right to testify was denied. Lambrix, 72 F.3d at 1508. This Court further elaborated on Lambrix’s claim that he was denied the right to testify:

[I]n prior litigation, Lambrix asserted that during the guilt phase of his first trial, his counsel told the trial judge to inform Lambrix that if Lambrix chose to testify in his own defense during the guilt phase, his counsel would withdraw and the court would not appoint new counsel for Lambrix. Thus, Lambrix contends that he' was denied his fundamental right to testify. The Elevefith Circuit rejected this claim ....
The Eleventh Circuit noted that there was no evidence at all regarding any .person who prevented Lambrix from testifying during the second trial, which occurred two months after his first trial ended in a hung jury. Moreover, to the extent that Lambrix’s counsel advised Lambrix against testifying in the first trial, this advice pertained only to Lam-brix’s testimony concerning the guilt phase (at the first trial only), where Lambrix sought to tell the jury his version of how the victims died.
In other words, the claim that Lam-brix was prevented from testifying at trial has been litigated and denied. Even if Lambrix believed that he could not testify during the penalty phase at his second trial, this does not explain why he failed to present this claim in his initial postconviction motion. Lambrix clearly had the necessary knowledge pertaining to this claim, but failed to raise it at all, until his current attempt to resurrect this procedurally barred claim by pointing to a new witness he contends that he did not discover until now.

Lambrix, 124 So.3d at 901-02 (citations omitted) (emphasis added). Thus, Lambrix is not entitled to relief on this claim.

III. Access to DNA Evidence

Further, as to Lambrix’s assertion that he was denied his right to DNA testing, we explained in 2013 that:

As this Court has recognized, “[i]t is the defendant’s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant’s sentence.” Scott v. State, 46 So.3d 529, 533 (Fla. 2009) (quoting Robinson v. State, 865 So.2d 1259, 1265 (Fla. 2004)). Lambrix has completely failed to explain how finding Smith’s hair on the murder weapon would help exonerate him or even cast Smith’s testimony into doubt. Smith was at the murder scene after the murders occurred. According to her trial testimony, Lam-brix was carrying the tire iron when he returned to the trailer alone and admitted to Smith that he killed both Bryant and Moore. Smith then helped to dispose of the bodies and the weapon. Thus, it would not be unexpected that her hairs could also be on the weapon, as she was present at the scene and helped to hide the weapon. As this Court has previously held, a trial court does not err in denying a motion for DNA testing where the defendant cannot show that there is a reasonable px-obability that the absence or presence of DNA at a crime scene would exonerate him or lessen his sentence. Scott, 46 So.3d at 533. Accordingly, we deny this claim.

Id. at 895-96 (emphasis added). Four years later, in 2017, we again affirmed the postconviction court’s denial of Lambrix’s request for DNA testing of Bryant’s clothing, the tire iron, and the t-shirt wrapped around the tire iron, stating:

Lambrix has failed to explain how DNA testing of any of the items would lead to his exoneration of the exime or a reduced sentence. As to the tire iron and the shirt wrapped around the tire iron, as Lambrix himself acknowledges, prior testing already established that there was no blood on these items—an unsurprising result since the items were disposed of in a stream. Regarding Bryant’s clothing, Lambrix pxwides no reason how Moore’s DNA on Bryant would exonerate Lambxix. The facts already established that Lambrix and Smith invited a couple they met at a bar to their ti-ailer—Bryant and Moore. Further, DNA testing was performed on Bryant’s panties. Simply alleging that Bryant was found nude from the waist down and Moore’s DNA may be on her clothing does not establish how that would exonerate Lambiix of killing both Bryant and Moore, particularly when Moore and Bryant were together that evening.

Lambrix, 217 So.3d at 987 (emphasis added). Thus, Lambrix is not entitled to relief on this claim.

CONCLUSION

It is clear that Lambrix has not been denied the opportunity to claim any constitutional right, nor has any right been denied to him without full consideration and review. To the contrary, for more than thirty years, Lambrix’s multiple claims have been reviewed and rejected. Thus, we conclude that Lambrix is not entitled to relief.

Accordingly, we deny Lambrix’s petition for a writ of habeas corpus. No rehearing shall be allowed.

It is so ordered.

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

QUINCE, J., recused.

      . See Lambrix v. State, 217 So.3d 977 (Fla.), petition for cert. filed, No. 17-5539 (U.S. Aug. 9, 2017); Lambrix v. State, 139 So.3d 298 (Fla.), cert. denied, — U.S. —, 135 S.Ct. 174, 190 L.Ed.2d 124 (2014); Lambrix v. State, 124 So.3d 890 (Fla. 2013), cert. denied, — U.S. —, 134 S.Ct. 1789, 188 L.Ed.2d 760 (2014); Lambrix v. State, 39 So.3d 260 (Fla. 2010), cert. denied, 562 U.S. 1145, 131 S.Ct. 917, 178 L.Ed.2d 766 (2011); Lambrix v. State, 698 So.2d 247 (Fla. 1996), cert. denied, 522 U.S. 1122, 118 S.Ct. 1064, 140 L.Ed.2d 125 (1998); Lambrix v. Singletary, 641 So.2d 847 (Fla. 1994); Lambrix v. State, 559 So.2d 1137 (Fla. 1990); Lambrix v. State, 534 So.2d 1151 (Fla. 1988); Lambrix v. Dugger, 529 So.2d 1110 (Fla. 1988); see also In re Lambrix, — U.S. —, 136 S.Ct. 541, 193 L.Ed.2d 451 (2015); In re Lambrix, 563 U.S. 1007, 131 S.Ct. 2907, 179 L.Ed.2d 1263 (2011); Lambrix v. Sec’y, Dep't of Corrs., 851 F.3d 1158 (11th Cir.), petition for cert. filed, No. 17-5153 (U.S. July 12, 2017); In re Lambrix, 776 F.3d 789 (11th Cir. 2015); Lambrix v. Sec'y, Fla. Dep't of Corrs., 756 F.3d 1246 (11th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1894, 191 L.Ed.2d 767 (2015); In re Lambrix, 624 F.3d 1355 (11th Cir. 2010); Lambrix v. Singletary, 72 F.3d 1500 (11th Cir. 1996), aff'd, Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997).

      , Lambrix again sought leave to file a successive federal habeas petition under 28 U.S.C. § 2244(b)(2)(B), which was likewise denied by the Eleventh Circuit. See In re Lambrix, 776 F.3d 789, 797 (11th Cir. 2015).


author: LAWSON, J.

text:
    Ketan KUMAR, Petitioner, v. Nirav C. PATEL, Respondent.
    No. SC16-1457
    Supreme Court of Florida.
    [September 28, 2017]
    See also Professional Roofing and Sales, Inc. v. Flemmings, 138 So.3d 524.

      Michael P. Maddux of Michael P. Mad-dux, P.A.; and Thomas A. Bums of Burns, P.A., Tampa, Florida, for Petitioner
    Stephen L, Romine of Romine Law, P.A., Clearwater, Florida; and Kimberley M. Kohn of Goudie & Kohn, P.A., Tampa, Florida, for Respondent
   LAWSON, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Patel v. Kumar, 196 So.3d 468 (Fla. 2d DCA 2016), which certified direct conflict with the Third District Court of Appeal’s decision in Professional Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3d DCA 2014), regarding whether an immunity determination pursuant to the Stand Your Ground law in a criminal proceeding controls in a civil proceeding, We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we agree with the Third District, which held that the Stand Your Ground law does not confer civil liability immunity to a criminal defendant based upon an immunity determination in the criminal case.

BACKGROUND

Ketan Kumar physically attacked Nirav Patel without provocation at a Tampa bar. Kumar, 196 So.3d at 470, In reaction to Kumar’s aggression, Patel struck Kumar’s face with a cocktail glass, resulting in permanent loss of sight in Kumar’s left eye. Id. After the State filed an information charging Patel with felony battery, Patel moved to dismiss the information, citing immunity from prosecution under the Stand Your Ground law. Id, The circuit court granted the motion, holding Patel immune under the law. The immunity finding in the criminal case is final. Id. at 471.

Kumar then filed a civil complaint in the circuit court against Patel for battery and negligence, demanding a jury trial. Id. at 470. Patel asserted as an affirmative defense the immunity found by the circuit court under the Stand Your Ground law and moved for summary judgment on the same ground. Id. at 471. The circuit court ultimately denied Patel’s summary judgment motion and ordered an evidentiary hearing to determine Patel’s immunity. Id. at 471.

Before this hearing could be held, Patel filed a petition for writ of prohibition with the Second District, arguing that the circuit court lacked jurisdiction over him in the civil case based upon the immunity determination in the criminal case. The Second District granted Patel’s petition, holding that section 776.032, Florida Statutes (2008), guarantees a single Stand Your Ground immunity determination for both criminal and civil actions and certifying direct conflict with Flemmings. Kumar, 196 So.3d at 470, 472-73, 476.

ANALYSIS

Questions of statutory interpretation are reviewed de novo. See Borden v. E-European Ins. Co., 921 So.2d 587, 591 (Fla. 2006). We first examine the statute’s plain meaning, resorting to rules of statutory construction only if the statute’s language is ambiguous. Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984).

The Stand Your Ground law in Florida eliminates the common law duty to retreat before using force in self-defense:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

§ 776.012(1), Fla. Stat. (2008). Section 776.032 also provides immunity for a person who lawfully uses force in self-defense:

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such, force and is immune from criminal prosecution and civil action for the use of such force .... As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

§ 776.032(1), (3), Fla. Stat. (2008) (emphasis added). We have recognized that “the plain language of section 776.032 [of the Stand Your Ground law].grants defendants a substantive right. to assert immunity from prosecution and to avoid being subjected to a trial.” Dennis v. State, 51 So.3d 456, 462 (Fla. 2010). The Legislature, however, did not suggest procedural mechanisms for invoking and determining Stand Your Ground immunity. Necessarily, those procedures are being developed by the judiciary.

In both criminal and civil proceedings, the determination of whether a defendant is entitled to Stand Your Ground immunity ,has been made at pretrial evi-dentiary hearings where the defendant must prove that the immunity attaches by a preponderance of the evidence. Id. at 460 (criminal case); Pages v. Seliman-Tapia, 134 So.3d 536, 538 (Fla. 3d DCA 2014) (civil case). We recognize that a pretrial hearing cannot afford the immunity purportedly guaranteed by the plain language of this statute in the criminal context, for the simple reason that there appears to be no way to do so in most cases.

For example, the statute purports to grant immunity from arrest, detention, and prosecution. § 776.032(1), Fla. Stat. But, in many situations, it would be impossible for law enforcement to secure a judicial immunity determination prior to arresting an individual suspected of killing or causing bodily harm to another (or attempting to do so). The law is clear that we expect officers to temporarily detain a person encountered under circumstances creating a reasonable suspicion of criminal activity. § 901.151, Fla. Stat. (2017). Then, if there is probable cause to believe that the person- committed -a felony, law enforcement is authorized to immediately effectuate the arrest, under section 901.15, Florida Statutes (2017), and should clearly do so when there is probable cause to believe that a person has committed a serious crime of violence against another. Cf. § 907.041(4)(c)5., Fla. Stat. (2017) (authorizing pretrial detention by court order when a suspect poses a risk of physical harm to the community). Probable cause to arrest for a crime of violence would include probable cause to believe that the suspect was not acting in self-defense; and, suspects will often claim self-defense even when the facts would not appear to support such a claim. This means that in most potential self-defense cases, a post-arrest and post-charging immunity determination, made when a defendant’s counsel requests that determination, will be the best that we can do—procedurally—considering the well-established body of law detailing the responsibilities of law enforcement officers, prosecutors, and judges.

In the civil context, there are also practical considerations and legal bars that prevent our current procedures from fully effectuating a civil immunity that protects a person from being sued at all, as the Stand Your Ground law purports to do. When a civil case is brought prior to a criminal case, there is currently no forum or mechanism that a potential civil defendant can use to preemptively secure an immunity determination. And, even where a criminal immunity determination is made prior to the filing of a civil suit, that determination cannot bind a potential civil plaintiff who is not a party to the criminal proceeding, as properly recognized by the Third District in Flemmings, 138 So.3d at 527-29, because the law does not generally sanction binding a person to judicial determinations made in a proceeding to which he or she was not a party. See Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004) (explaining that at common law, in order for res judicata and collateral estoppel to apply, mutuality of parties or their privies must exist); Stogniew v. McQueen, 656 So.2d 917, 919-20 (Fla. 1995) (holding, based upon “concerns over fairness to the litigants,” that Florida will continue to adhere to the requirement of “mutuality of parties” before a litigant can be bound to a judicial determination from a prior case); Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1214-15 (Fla. 2d DCA 1996) (“Collateral estoppel principles are applicable to a subsequent proceeding only if ... the parties in the two proceedings were identical .... ”).

The Second District concluded that because the Stand Your Ground law clearly stated that it was granting immunity from béing prosecuted or sued at all, the Legislature must have intended a procedure with one immunity determination and, therefore, unambiguously modified the doctrine of collateral estoppel to effect a single immunity determination. We reject this analysis for five reasons.

First, as already discussed, the statute is silent as to the procedure to be used for determining immunity, meaning that the “plain language” of the statute does not speak to this issue at all.

Second, because the statute purports to grant a substantive immunity that cannot, in practice, be accomplished by any procedure, we do not believe that the statute can be read as implying a mandate for any particular procedure.

Third, “a statute will not be construed to modify the common law unless such intent is evident or the statute cannot otherwise be given effect.” McGhee v. Volusia Cty., 679 So.2d 729, 733 (Fla. 1996); see State v. Egan, 287 So.2d 1, 6 (Fla. 1973) (“It requires no citation of authority to support the rule that the common law is not to be changed by doubtful implication.”). The Legislature knows how to modify the doctrine of collateral estop-pel when that is its intent. For example, sections 772.14 and 775.089(8), Florida Statutes, expressly restrict the doctrine of mutuality of parties in order to estop defendants convicted of civil theft from challenging certain issues adjudicated in criminal actions when sued civilly. See Stogniew, 656 So.2d at 920. The Stand Your Ground law, by contrast, does not purport to modify the mutuality of parties doctrine, nor, for reasons already explained, does it express a clear intent to do so.

Fourth, the civil attorney’s fees and costs provision in section 776.032(3) implies recognition by the Legislature that civil immunity will be determined separately in a civil proceeding. If this statute had clearly and unambiguously modified our common law such that the criminal immunity finding would be binding on potential civil litigants, it would be equally clear and unambiguous that anyone filing a suit for civil damages based upon the same incident for which Stand Your Ground immunity had been found in a criminal case could be subject to an attorney’s fee sanction under section 57.105, Florida Statutes—rendering the fees and costs provision somewhat redundant in most cases (since criminal cases almost always proceed first and faster than civil cases). Additionally, the subsection (3) fees and costs provision seems to contemplate a recovery for litigating the immunity question in a more traditional fashion, in most civil cases (as opposed to having almost all civil cases subject to dismissal at the outset based upon a prior binding finding).

Finally, the 2017 amendment to the Stand Your Ground law creating different burdens of proof for criminal and civil immunity not only implies an understanding that separate immunity determinations .will be made but also forecloses any argument, going forward, that the criminal “determination” could ever be binding in the civil proceeding. Even in a case where the State could not prove by clear and convincing evidence that the defendant was not entitled to immunity, the criminal defendant may not be able to prove by a preponderance of the evidence that he is entitled to immunity in the civil case.

CONCLUSION

For these reasons, we approve the Third District’s decision in Flemmings and hold that the Stand Your Ground law does not confer civil liability immunity to a criminal defendant who is determined to be immune from prosecution in the criminal case, and quash the Second District’s decision in Kumar.

It is so ordered.

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

      . The substance of the 2008 version of. the statute is the same as that of the current version.

      . A recent amendment to .the Stand Your Ground law now places the burden on the State to prove by clear and convincing evidence that the defendant is not -entitled to immunity from criminal prosecution. ' § 776.032(4), Fla. Stat. (2017).

      . The Second District read the language in subsection (3)—providing for civil fees and costs "if the court finds that the defendant is immune from prosecution as provided in subsection (1)”—as referring to the criminal immunity finding, based upon the reference to subsection (1), § 776.032(3), Fla. Stat. We believe the language to be more reasonably understood as referring to the civil immunity finding that will be made in the civil case because "the court” seems to be a reference to the civil court and its determination (as conveyed by use of the present tense), and because subsection (1) refers to both civil and criminal immunity.