author: MOORE, Judge.

text:
    B.A. LITTLE v. Erica GASTON
    2150889
    Court of Civil Appeals of Alabama.
    March 3, 2017

      F. Tim McCollum, Alabama Law Enforcement Agency, Montgomery, for appellant. .
    Joe M. Reed of Joe M. Reed & Associates, LLC, Montgomery, for appellee.
    Benjamin H. McGough, deputy dist. atty., Montgomery, for amicus curiae State of Alabama, by and through Daryl D. Bailey, dist. atty. for the 15th Judicial Circuit.
   MOORE, Judge.

B.A. Little, a special agent with the Alabama Law Enforcement Agency, appeals from a summary judgment entered by the Montgomery. Circuit Court (“the trial court”) ordering Little to return to Erica Gaston $7,050 that Little had seized pursuant to a search warrant issued, by the trial court. We affirm the judgment.

Background

On May 18, 2015, Little signed an affidavit before the trial court in support of an application for a search warrant. In that affidavit, Little attested that he" had been employed for the preceding seven years as a special agent for the Alabama State Law Enforcement Agency and that he was currently assigned to the State Bureau of Investigation, serving as a duly deputized “Task Force Officer” for the federal Drug Enforcement Administration (“DEA”). Lit-tl¿ averred that he had obtained'various information giving him probable cause to believe, among other things, that certain illegal controlled substances were being stored and sold by a suspect identified as Jamie Williams out of a Montgomery residence owned by Gaston. Based on that affidavit, the trial court issued a search warrant providing:

“TO ANY SHERIFF, DEPUTY, AND/OR MUNICIPAL OFFICER OR DULY SWORN LAW ENFORCEMENT OFFICER OF THE STATE:
“THE ATTACHED AFFIDAVIT having been sworn to by Special Agent B.A. Little, before me this day, based upon facts stated therein, - probable cause having been found, in the name of the People 'of the State óf Alabama, I command that you enter the [Gaston residence]
“... to search for, seize, tabulate and make return according to law the following property and things as set forth in attachment number 1 of this ‘NO KNOCK’ search warrant and make due return of this warrant and an inventory of all property seized thereunder before me within 10 days as required by law. The Court further finds probable cause to warrant the execution of this ,‘NO-KNOCK’ search warrant at any time of the day or night based on the presence of firearms and drugs at the above described residence.
“ISSUED TO S.A. B. Little. UNDER MY HAND AT ¾20, O’CLOCK P.M., THIS 18th DAY OP MAY 2015.”

(Bold typeface, underlining, and capitalization in original.)

Little, along with officers from various local, state, and federal law-enforcement agencies, executed the search warrant on May 20, 2015. In the search^ Little discovered assorted United States currency in a plastic bag in Gaston’s bedroom, which Gaston identified as the cash proceeds she received from the settlement of a civil lawsuit. Little also discovered additional assorted United States currency in a box in the back bedroom of Gaston’s house. Little seized the funds and placed them in a self-sealing envelope furnished to him by the DEA. Little logged the items seized in the search on a form issued by the former Alabama Department of Public Safety entitled “Evidence/Property Receipt.”

Little took the money to a local bank, which determined that the currency in the box totaled to $7,050 and that the currency in the plastic bag totaled to $3,300. Little subsequently replaced the money in the DEA envelope and transported the envelope to the DEA office in Montgomery. Later that day, Little filled out a “Seizure/FIRE form,” described by Little as “a document used by the DEA for memorializing a seizure it makes[, which] is filled out any time a DEA agent seizes property of any sort,” listing the $7,050 seized from the Gaston home. The DEA later voluntarily returned the $3,300 to Gaston.

On June 10, 2015, Gaston filed a complaint against Little requesting the return of the currency seized from her home, which she alleged totaled to $21,000. Little moved the trial court-to dismiss the action, arguing, among other things, that the trial court lacked in rem jurisdiction. On December 30, 2015, before the trial court issued a ruling on the motion to dismiss, the United States of America filed a forfeiture action in the United States District Court for the Middle District of Alabama (“the federal court”). See United States v. $7,050.00 In United States Currency (No. 2:15CV958, Aug. 10, 2016) (M.D. Ala. 2016) (not reported in P. Supp. 3d). On January 5, 2016, the federal court issued a seizure warrant for the currency at issue, which United States marshals executed on January 8, 2016.

The. trial court entered an order on February 24, 2016, denying Little’s motion to dismiss, which the trial court later amended on February 29, 2016, Little filed a petition for a writ of mandamus with-this court, requesting that this court order the trial court to dismiss Gaston’s complaint due to that court’s alleged lack of in rem jurisdiction; that petition was summarily denied on May 6, 2016. See Ex parte Little 228 So.3d 448 (Ala. Civ. App. 2016) (table).

Both Little and Gaston filéd summary-judgment motions in 'Which they agreed that the amount in controversy was $7,050. On June 28, 2016, the trial court entered a judgment granting the motion for a summary judgment filed by Gaston and denying the motion for a summary judgment filed by Little. The judgment orders that Gaston is entitled to a return of the $7,050 seized by Little. On July 28, 2016, Little filed a notice of appeal. Meanwhile, Gaston moved the federal court to dismiss the federal forfeiture action based on that court’s lack of in rem jurisdiction; the federal court denied her motion on August 10, 2016. See United States v. $7,050.00 In United States Currency, supra.

Discussion

In its final judgment, the trial court determined that, pursuant to Alabama state law, it had exclusive in rem jurisdiction over the $7,050 seized by Little and that Gaston was entitled to a return of those funds because no state forfeiture proceedings had been promptly commenced as required by Ala. Code 1975, § 20-2-93(c). See State v. Chesson, 948 So.2d 566 (Ala. Civ. App. 2006) (holding that failure to “promptly” commence state forfeiture proceedings requires return of items seized). On appeal, Little argues solely that the trial court erred in its jurisdictional analysis. The record reveals that the material facts on the question of in rem jurisdiction have never been in dispute; thus, we review the determination of the trial court de novo. See Gray v. City of Opelika, 216 So.3d 431 (Ala. Civ. App. 2016).

“In rem jurisdiction” refers to the “court’s power to adjudicate the rights to a given piece of property, including the power to seize and hold it.” Black’s Law Dictionary 982 (10th ed. 2014). A court obtains in rem jurisdiction when it validly seizes property so that it is brought within the control of the court. Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 85, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992). Judicial control of the res may be either actual or constructive. Id. at 87. “[T]hat court which first acquires [in rem] jurisdiction draws to itself the exclusive authority to control and dispose of the res.” Ex parte Consolidated Graphite Corp., 221 Ala. 394, 397-98, 129 So. 262, 265 (1930).

Under Ala. Code 1975, § 20-2-93(b), property used to further the unlawful sale of controlled substances “may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property.” In this case, Little seized the currency in controversy based on a search warrant issued by the trial court, which had jurisdiction over Gaston’s house and its contents. The trial court derived its authority to issue that search warrant from Ala. Code 1975, §§ 15-5-2(2) and (3), which provides that a court with probable cause, see Ala. Code 1975, § 15-5-3 and § 15-5-5, may order a search and seizure when

“(2) [the property to be seized] was used as the means of committing a felony; or
“(3) [the property to be seized] is in the possession of any person with the intent to use it as a means of committing a public offense or in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its discovery.”

Based on the contents of the affidavit signed by Little, the trial court could have issued the search warrant under either § 15-5-2(2) or § 15-5-2(3), or both.

Section 15-5-7, Ala. Code 1975, requires that a search warrant “be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution.” Rule 3.10, Ala. R. Crim. R, provides that “[t]he search warrant shall be directed to and served by a law enforcement officer, as defined by Rule 1.4(p)[, Ala. R. Crim. P.].” Rule 1.4(p) defines “law enforcement officer” as

“an officer, employee or agent of the State of Alabama or any political subdivision thereof who is required by law to:
“(i) Maintain public order;
“(ii) Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and.
“(iii) ■ Investigate the commission or suspected commission of offensés.”

In this case, the trial court addressed the search warrant to “any sheriff, deputy, and/or municipal officer or duly sworn law enforcement officer of the state.” The trial court specifically issued the search warrant to Little, having been informed that Little was, in fact, a special agent for the Alabama State Law Enforcement Agency assigned to the State Bureau of Investigation. We presume that the trial court followed the law by issuing the search warrant to Little in that capacity and not in his other capacity as a deputized federal DEA agent, which would have been beyond the trial court’s authority. See generally Ex parte Slaton, 680 So.2d 909, 924 (Ala. 1996) (holding that trial courts are “presumed to know the law and to follow it •in .making their decisions”). Although Little alleges in conelusory. fashion that he executed the search warrant as a federal DEA agent, the foregoing authority belies that contention.

For the foregoing reasons, we determine that the currency was validly seized by the trial court. We now turn to the question whether the trial court controlled the property seized in accordance with its search warrant.

Generally speaking, “[w]hen the property is taken under a search warrant, it shall be delivered to the court issuing the warrant.” Ala. Code 1975, § 15-5-14. However, when a search warrant is issued under §§ 15-5-2(2) and (3), “the officer effecting the warrant must retain the property in his possession, subject to the order of the court to which he is required to return the proceedings or of the court in which the offense is triable in respect to which the property was taken.” § 15-5-14. In Republic National Bank of Miami v. United States, supra, the United States Supreme Court recognized that, even if a court does not have actual possession of the res, a court may nevertheless constructively control the res even “ ‘if its direction had been nothing more than to hold the property subject to the order of the court, and to give notice.’ ” 506 U.S. at 88 (quoting Miller v. United States, 78 U.S. (11 Wall.) 268, 294-95, 20 L.Ed. 135 (1871)).

In the search warrant, the trial court did not expressly direct Little to retain possession of the currency, “subject to its further orders.” The trial court ordered Little only to return the warrant “with an inventory of the property seized.” Nevertheless, § 15-5-14 uses unambiguous terms, mandatory and imperative in nature, meaning that the statute is compulsory and must always be followed without discretion. See Ex parte Prudential Ins. Co. of Am., 721 So.2d 1135, 1138 (Ala. 1998). Therefore, by operation of law, any search warrant issued pursuant to §§ 15-5-2(2) arid (3) impliedly commands that the law-enforcement officer who seizes the property shall retain possession of the property subject to the further orders of the court issuing the search warrant. Accordingly, a court issuing a search warrant under §§ 15-5-2(2) and (3) assumes constructive control over the seized property, which it retains until it orders otherwise.

In this case, Little, as the state law-enforcement officer who executed the search warrant, was under an imperative duty to retain possession of the Currency until ordered otherwise by the trial court. Therefore, the trial court effectively controlled the currency from the time Little validly seized it in accordance with the terms of the search warrant. As such, the in rem jurisdiction of the trial court attached upon the moment of seizure. As the first court to obtain in rem jurisdiction, the trial court had the exclusive power to dispose of the res, and the federal government could not exercise any jurisdiction over the currency. Therefore, we hold that the trial court ruled correctly when deciding that it had in rem jurisdiction over the $7,050.

Our holding does not conflict with Green v. City of Montgomery, 55 So.3d 256 (Ala. Civ. App. 2009). In Green, Montgomery police officers seized marijuana and $32,358 in cash from three individuals (“the claimants”) during a warrantless traffic stop. On the same day as the seizure, the City of Montgomery (“the City”) transferred the seized currency to the DEA and requested that the DEA “adopt” the seizure pursuant to 21 U.S.C. § 881(e)(1)(A). 55 So.3d at 268, Approximately three weeks later, while the United States Department of the Treasury was reviewing the request, the claimants filed a state-court action seeking the return of the currency. The City filed a summary-judgment motion asserting that the state court no longer had jurisdiction over the seized currency. Subsequently, the federal government instituted forfeiture proceedings in federal court resulting in a judgment of forfeiture. The state court then entered a summary judgment against the claimants in the state-court action. On appeal, this court reversed the judgment. This court determined, among other things, that the police officers had properly seized the currency without process under Ala. Code 1975, § 20-2-93(b), and that the City could lawfully transfer the funds to the DEA under that statute. This court further held that “federal jurisdiction begins the moment the res is controlled by federal agents.” 55 So.3d at 263, Construing 21 U.S.C.- § 881(c), this court concluded: “The federal government controls the res when it is ‘taken or detained’-during a-.time when no other court has jurisdiction over the res.” 55- So.3d at 264. Because the federal agencies had not assumed control over the currency before the state-court action was commenced, at which time the federal government was merely considering the request of the City to adopt the seizure, this court determined that the state court had exclusive in rem jurisdiction.

In Green, we held that nothing in § 20-2-93(b) prohibited police officers from' transferring possession of property to the federal government. However, in Green, the’ property had been seized without a warrant. Thus, we had no occasion to address the effect of § 15-5-14, which requires a state law-enforcement officer seizing property pursuant to a search warrant to retain its possession. Under that provision, Little could not have released the funds to the control of the DEA without an order from the trial court. Although Little actually transported the currency to the Montgomery DEA office, he did not thereby wrest control of the currency from the trial court under § 15-5-14 because, as we held in Green, federal agents cannot take control over property during a time when it is within the in rem jurisdiction of a state court. In this case, the trial court acquired m rem jurisdiction immediately upon the seizure of the $7,050; thus, the DEA could not have subsequently “taken or detained” the currency “during a time when no other court has jurisdiction over the res.” Green, 55 So.3d at 264. Moreover, even if Little could have validly transferred possession of the currency to the DEA, this court held in Green that mere possession by federal agents does not amount to control for the purposes of establishing federal in rem jurisdiction. This court also held in Green that, despite its long possession of the $32,353, the federal government had not' taken the proper steps to adopt the seizure so as to control the funds before the state-court action was filed. In this case, Little acknowledges that he never requested that the DEA adopt the seizure before Gaston filed the underlying action.

We acknowledge that, in Green, this court stated that “Alabama law requires a two-step process of possession and then the filing of an in rem court action.” 55 So.3d at 263. However, that statement does not apply to cases involving a seizure by search warrant in which the judicial process precedes possession, a point we did not consider in Green. Accordingly, Green does not detract from our holding that á court acquires in rem jurisdiction at the moment property is validly seized pursuant to a search warrant issued by that court. Because we find Green distinguishable for that reason, as well as the other reasons set out above, we decline any invitation to overrule Green in this case as most cogently urged by the State of Alabama in its amicus brief.

Finally, we acknowledge the order of the federal court in United States v. $7,050.00 In United States Currency, which held that in rem jurisdiction of the $7,050 rests in that court. In his appellate brief to this court, Little sets out the reasoning of the federal court, but he does not argue that its decision has any preclusive effect. Compare City of Montgomery v. Vaughn, 138 So.3d 996 (Ala. Civ. App. 2013) (holding that, where question of in rem jurisdiction had already been decided by federal court, doctrine of collateral estoppel prevented relitigation of that issue in state court). Thus, we consider that argument waived. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008). Furthermore, the federal court based its decision partly on the absence of caselaw from this court supporting Gaston’s argument that a state court acquires in rem jurisdiction when property is seized pursuant to a search warrant. This case expressly sustains that position and leads us to the same conclusion reached by the trial court, not the conclusion reached by the federal court.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The former Alabama Department of Public Safety is now a part of the Alabama State Law Enforcement Agency. See § 41-27-1, Ala. Code 1975.'

      ,. We note that we reached a similar conclusion in Alexander v. City of Birmingham, 99 So.3d 1251 (Ala. Civ. App. 2012), which was later overruled by Payne v. City of Decatur, 141 So.3d 500 (Ala. Civ. App. 2013), for reasons inapplicable to this case.

      . When federal DEA agents participate in the execution of a state search warrant, - the search becomes federal in nature. See United States v. Gilbert, 942 F.2d 1537 (11th Cir. 1991). However, Little has not argued with citation to any legal authority that the participation of other.federal agents made the seizure a federal seizure that placed the currency under the control of federal agents. "Rule 28(a)(10)[, Ala. R. App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived.” White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008).


source: Caselaw Access Project

license: Public Domain

text:
    D.M. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2150931
    Court of Civil Appeals of Alabama.
    March 3, 2017

      Wendy Allison Reese, Birmingham, for appellant.-
    - Sharon E. Ficquette,-chief legal- counsel, and Karen P. Phillips, asst. atty. gen;, Department of Human Resources, for ap-pellee.
   MOORE, Judge.

D.M. appeals from judgments entered by the Jefferson Juvenile Court (“the juvenile court”) in four separate juvenile-court cases — case numbers JU-09-92919.03, JU-09-92920.03, JU-09-92921.03, and JU-14-607.03. We affirm the judgments entered in case numbers JÜ-09-92919.03, JU-09-92920.03, and JU-09-92921.03; however, because we determine that D.M. lacked standing to appeal from the judgment entered in case number JU-14-607.03, we dismiss the appeal insofar as it arises from the judgment entered in that case.

Case Number JU-14-607.03

-In case number JU-14-607.03 (“the B.M. case”), the Jefferson County Department of Human Resources (“DHR”) filed a petition regarding B.M. seeking to terminate the parental rights of A.M. (“the mother”); D.M., who DHR identified as B.M.’s “alleged father”; and any unknown father. At the termination hearing in that case, which was consolidated with the other three cases addressed in this appeal, the testimony revealed that the mother and D.M. had divorced in August 2010 and that B.M. was born on July 23, 2011. The mother and D.M.’s judgment of divorce lists them as having only three children, and D.M. was not listed as B.M.’s father on B.M.’s birth certifícate. DHR filed a motion for service by publication asserting that B.M.’s father was unknown and that service by publication on the unknown father was necessary; the juvenile court granted that motion. Tiarra Thomas, a social-service caseworker for DHR, also testified at the termination hearing that B.M.’s father was unknown. On July 16, 2016, the juvenile court entered a judgment in the B.M. case, terminating the parental rights of the mother and any unknown father to B.M.; D.M. was not mentioned'in that judgment. Nevertheless, D.M. filed a postjudgment motion in the B.M. case, and has appealed from the judgment entered in .that case.

Before we proceed to address the merits of D.M.’s appeal as it pertains to the B.M. case, we must first determine whether this court has jurisdiction over that aspect of the appeal. Although neither party has raised the issue of subject-matter jurisdiction,

“[i]t is well settled that ‘subject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ C.J.L. v. M.W.B., 868 So,2d 451, 453 (Ala. Civ. App. 2003); see, e.g., Ex parte Norfolk S. Ry. Co., 816 So.2d 469, 472 (Ala. 2001) (‘We are obliged to recognize an absence of subject-matter jurisdiction obvious from a record, petition, or exhibits ;to a petition before us.’). A judgment entered by a court that lacks subject-matter jurisdiction is void. See C.J.L., 868 So.2d at 454; see also J.B. v. A.B., 888 So.2d 528 (Ala. Civ. App. 2004).”

S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala. Civ. App. 2005).

“Standing ... turns on ‘whether the party has been injured in fact and whether the injury is to a legally protected right.’ ” State v. Property at 2018 Rainbow Dr., 740 So.2d 1025, 1027 (Ala. 1999) (quoting Romer v. Board of Cty. Comm’rs of the Cty. of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J., dissenting)).

“‘Unless a person is a party to a judgment, he can not appeal from that judgment. That fundamental principle is one of the oldest in Alabama jurisprudence.’ Daughtry v. Mobile County Sheriff's Dep’t, 536 So.2d 953, 954 (Ala. 1988). ‘One must have been a party to the judgment below in order to have standing, to appeal any issue arising out of that judgment.’. Mars Hill Baptist Church of Anniston v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala. 1999) (emphasis added). See also Triple J Cattle, Inc. v. Chambers, 621 So.2d 1221 (Ala. 1993).”

Boschert Merrifield Consultants, Inc. v. Masonite Corp., 897 So.2d 1048, 1051-52 (Ala. 2004). D.M. was not a party to the judgment in the B.M. case. Moreover, there is no indication that D.M. is the presumed father of B.M., see § 26-17-204, Ala. Code 1975, or that he established or sought to establish his paternity of B.M. at any time. Accordingly, the notice of appeal filed by D.M., insofar as it pertained to the B.M. case, failed to -invoke this .court’s appellate jurisdiction, and the appeal, insofar as it pertains to the judgment entered in the B.M. case, is due to be dismissed. See Boschert, 897 So.2d at 1052. Compare W.T.M. v. S.F., 802 So.2d 1091, 1093-94 (Ala. Civ. App. 2001) (concluding that, although biological father was not a party to a custody action before the juvenile court, he had an interest in the litigation and, therefore, had. standing to appeal where paternity had been judicially established).

Case Numbers JU-09-92919.03, JU-09-92920.03, and JU-09-92921,03

On December 10, 2015, DHR filed separate petitions seeking to terminate the parental rights of D.M. and the mother to N.M., M.M., and S.M. (“the children”); those petitions were assigned case numbers JU-09-92919.03, JU-09-92920.03, and JU-09-92921.03, respectively. Following a hearing on June 14, 2016, the juvenile court entered separate judgments on July 16, 2016, terminating the parental rights of the mother and.D.M. to the children. D.M. filed a postjudgment motion that referenced all three ease numbers; that motion was denied. D.M. timely filed a notice of appeal from the judgments.

D.M. argues on appeal that the juvenile court, erred in terminating his parental rights to.the children because, he says, there were viable alternatives to termination.

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the. court must properly consider and reject all viable alternatives to a termination of parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990).”

B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004). A judgment terminating parental rights , must be supported by clear and convincing evidence, which is “' “[e]vi-dence-that, when weighed against evidence in opposition, will produce in the mind of the 'trier of fact -a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.”’” C.O. v. Jefferson Cty. Dep’t of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1976, § 6-ll-20(b)(4)). .

“ ‘[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence. is evidence .that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.’
“KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [(Ala. Civ. App. 2006)].
“To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies,' ‘the judge .must view the evidence presented through the prism of the substantive evidentiary burden’; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial' court to support a factual finding, based upon the trial court’s weighing of the evidence, that would ‘produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.’ ”

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008). This court does not reweigh the evidence but, rather, determines whether the findings' of fact made by the juvenile court are supported by evidence that the juvenile court could have found to be clear and convincing. See Ex parte T.V., 971 So.2d 1, 9 (Ala. 2007). When those findings rest on ore tenus evidence, this court presumes their correctness. Id. We review the legal conclusions to be drawn from the evidénce without a presumption of correctness. J.W. v. C.B., 68 So.3d 878, 879 (Ala. Civ. App. 2011).

The juvenile court determined in its judgments, among other things, that D.M. had abandoned the children, that there were no suitable relative resources willing and able to receive custody of the children, and that there were no viable alternatives to termination of D.M.’s parental rights. D.M. first argues on appeal that the juvenile court erred in terminating his parental rights despite the willingness of his sister, J.W. (“the paternal aunt”), to accept custody of the children. D.M. also argues that the juvenile court erred in terminating his parental rights because it failed to consider maintaining the status' quo as a viable alternative to termination. Both issues raised by D.M. speak to the existence of viable alternatives to termination of parental rights. We note, however, that when, as here, a juvenile court has determined that a parent abandoned his or her children, this court has concluded that consideration of viable alternatives to termination is not required. Thus, “by abandoning [his children], [D.M.] ‘lost any due-process rights that would have required the juvenile court to explore other alternatives before terminating [his] parental rights.’” L.L. v. J.W., 195 So.3d 269, 274 (Ala. Civ. App. 2015) (quoting C.C. v. L.J., 176 So.3d 208, 217 (Ala. Civ. App. 2015)).

Although D.M. did not couch either of his issues raised on appeal as addressing a lack of clear and convincing evidence to. support the juvenile court’s termination judgments other than in relation to the availability of viable alternatives, D.M. does assert in his appellate brief that he had made regular and consistent efforts to maintain a relationship with the children.-D.M. does not, however, challenge the juvenile court’s finding of abandonment or cite any authority in support of any such argument. See Rule 28(a)(10), Ala. R. App. P.

“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant’s legal research. Legal Systems, Inc. v. Hoover, 619 So.2d 930 (Ala. Civ. App. 1993); Lockett v. A.L. Sandlin Lumber Co., 588 So.2d 889 (Ala. Civ. App. 1991); and Moats v. Moats, 585 So.2d 1386 (Ala. Civ. App. 1991). Similarly, appellate courts' do not, ‘based on undelineated propositions, create legal arguments for the appellant.’ McLemore v. Fleming, 604 So.2d 353, 353 (Ala. 1992). This court will address only those issues properly presented and for which supporting authority has been cited. Simonton v. Carroll, 512 So.2d 1384 (Ala. Civ. App. 1987).”

Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996). Accordingly, the juvenile court’s determination that D.M. abandoned the children is. affirmed. Because the juvenile court was not required to consider viable alternatives to termination of D.M.V parental rights in light of that finding, we decline to address D.M.’s arguments on appeal that the juvenile court failed to properly consider whether placing the children with the paternal aunt or maintaining the status quo were viable alternatives to terminating his parental rights to the children.

D.M. cursorily asserts on appeal that the juvenile court’s judgments violated his constitutional rights because he was not appointed an attorney until December 2015, after DHR had filed its termination petitions. Specifically, D.M. asserts that he “was not appointed a lawyer to represent his interests in the underlying dependency matter” and that “the order of the [juvenile] court violates [his] constitutional right to have an attorney present at all material stages of the proceeding.” We note, however, that the underlying dependency judgment or judgments are not before this court, and there is no indication that D.M. appealed from the judgment or judgments finding the children dependent before the juvenile court entered its judgments terminating his parental rights to the children. Accordingly, D.M. may not raise that issue' on appeal in the present cases because it constitutes an unauthorized collateral attack upon the previous dependency judgment or judgments. See Morgan v. Lauderdale Cty. Dep’t of Pensions & Sec., 494 So.2d 649, 651 (Ala. Civ. App. 1986). D.M. was appointed an attorney to represent him shortly after the filing of DHR’s petitions to terminate his parental rights to the children, and D.M. was represented by counsel at the termination hearing. Accordingly, D.M. was not denied his right to representation by counsel in the underlying proceedings from which this appeal arises. The juvenile court’s judgments terminating the parental rights of D.M. to the children are affirmed.

Conclusion

For the reasons discussed above, we dismiss D.M.’s appeal with regard to case number JU-14-607.03. In case numbers JU-09-92919.03, JU-09-92920.03, and JU-09-92921.03, we affirm the juvenile court’s judgments terminating D.M.’s parental rights.

JUDGMENTS IN CASE NUMBERS JU-09-92919.03,. JU-09-92920.03, AND JU-09-92921.03 AFFIRMED; .APPEAL DISMISSED AS TO CASE NUMBER JU-14-607.03.

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


author: THOMAS, Judge. THOMPSON, Presiding Judge,

text:
    Beauford Ray JOHNSON v. Jacqueline JOHNSON
    2150936
    Court of Civil Appeals of Alabama.
    March 3, 2017
    James B. Sprayberry, Auburn, for appellant,
    Thomas S. Melton, Opelika, for appellee.
   THOMAS, Judge.

Beauford Ray Johnson (“the husband”) and Jacqueline Johnson (“the wife”) were married in 2003. On May 28, 2014, the husband filed in the Lee Circuit Court a complaint seeking a divorce from the wife. The circuit court held a trial and, on May 10, 2016, entered a judgment divorcing the parties and, in pertinent part, ordering the husband to pay the wife $20,000 in the form of a property settlement, or alimony in gross. The judgment provided that the husband could pay the wife either in one lump sum or in installment, payments spanning a period of more than six years. The husband filed a postjudgment motion, which the circuit court denied.

The husband filed a timely notice of appeal.-The husband urges this court to reverse the judgment insofar as it ordered him to pay the wife $20,000 in alimony in gross because the sum is not payable from his present estate.

“The trial court has wide discretion over the issues of alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala. Civ. App. 1989). The only limitation on that discretion is that the division of property must - be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court, Ross v. Ross, 447 So.2d 812 (Ala. Civ. App. 1984). The trial court’s judgment as to those issues is presumed correct and will not be reversed unless it is so unsupported by the evidence .... as .to be unjust and palpably wrong. Grimsley, 545 So.2d at 76.”

Redden v. Redden, 44 So.3d 508, 510 (Ala. Civ. App. 2009).

The husband, who was 74 years old at the time of the trial, testified that he has a third-grade education: and is illiterate. He said that he had been employed for 30 years before he “was hurt on the job and came out on disability” in 2002, which was before the parties’ marriage. The husband’s testimony regarding his monthly income was not entirely clear; however, he offered a document into evidence indicating that he received.net monthly retirement benefits in the. amount of $1,108 and net monthly Social Security benefits in the amount of $1,408. Subsection (b) of § 30-2-51, Ala. Code 1975, provides how retirement benefits are to be treated for purposes of dividing property pursuant to a divorce:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.”

In this case, the evidence presented demonstrated that the husband’s retirement benefits had been acquired before the marriage; therefore, pursuant to § 30-2-51(b)(1) & (2), the circuit court could not properly divide the husband’s retirement accounts, and, moreover, there was no testimony regarding the value of (as opposed to the monthly income from) his retirement accounts. Regardless, no language in the judgment leads us to believe that the circuit court considered the value of the husband’s retirement accounts in deciding to order him to pay the wife $20,000.

The husband testified regarding his seasonal “side job,” which the parties referred to as “Ray’s Deer Processing.” It was undisputed that the husband still offered deer-processing services and that no tax documentation had ever been prepared regarding Ray’s Deer Processing. When the husband offered certain “printouts” into evidence, the wife objected. The circuit court sustained her objection. The husband admitted that he had no proof of the value of Ray’s Deer Processing. The wife, who did the “book work,” testified that Ray’s Deer Processing “probably took in about” $28,000 to $30,000 per year. Although the wife referred to paying “employees” in cash and acknowledged that the husband had been habitually unable to pay “bills that lingered,” she did not offer specific testimony regarding the annual expenses of Ray’s Deer Processing.

The wife requested an award of $25,000 in alimony in gross because, she said, she had supported the husband during the marriage, although she conceded that he did not have “that kind of money” in his present estate. See Johnson v. Johnson, 840 So.2d 909, 912 (Ala. Civ. App. 2002) (alimony in gross “ ‘ “is payable out of the [payorj’s present estate as it exists at the time of the divorce (quoting Burnett v. Burnett, 339 So.2d 68, 69 (Ala. Civ. App. 1976), quoting in turn Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974))). In Beck v. Beck, 142 So.3d 685, 695 (Ala. Civ. App. 2013), we explained:

“The burden of proving the value of marital property rests with both parties. Edwards v. Edwards, 26 So.3d 1254, 1261 (Ala. Civ. App. 2009). We are well aware that in some divorce proceedings trial judges frequently suspect that parties have more assets than the parties are willing to acknowledge and that that suspicion is often correct; however, in the present case, if this court were to affirm the ... alimony-in-gross award, we would not be deferring to the trial court’s evaluation of the witnesses and the evidence, as the ore tenus rule requires, but would be yielding to specülation.”

The record does not contain sufficient evidence from which the circuit court could have inferred that the husband’s present estate was valued at $20,000, much less a greater amount from which $20,000 could be equitably deducted. Because property-division and alimony awards are considered to be interrelated, we often reverse both aspects of a trial court’s judgment “so that [the trial court] may consider the entire award again on remand.” Redden, 44 So.3d at 513. However, in this action the wife withdrew her request for a division of personal property (with the exception of an automobile that the circuit court awarded to her) and did not request an award of periodic alimony. Furthermore, the circuit court could not further adjust the equities in light of the fact that the parties did not assign values to the property contained in the marital estate. Therefore, we reverse the judgment and remand the cause for the circuit court to strike that portion of the judgment that orders the husband to pay the wife $20,000 in alimony in gross.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Donaldson, JJ., concur.

Moore, J., concurs in the result, without writing.

Thompson, P. J., dissents, with writing..

THOMPSON, Presiding Judge,

dissenting.

During the parties’ divorce trial, Jacqueline Johnson (“the wife”) waived her claim to certain personal property that had been in dispute between the parties, and she argued to the trial court that she should be awarded $25,000 as repayment for large amounts of money she contends she expended for the benefit of Beauford Ray Johnson (“the husband”) during the parties’ marriage. In its May 10, 2016, divorce judgment, the trial court awarded the wife $20,000 as a propérty settlement, divided the parties’ vehicles, and specified that it would retain jurisdiction over “the property-settlement issues until they are properly discharged.”

In reversing the trial court’s judgment, the main opinion characterizes the property settlement in the divorce judgment as being an award of alimony in gross. I disagree with that characterization. In its judgment, the trial court stated that it had awarded the $20,000 as a property settlement.] Although an award of alimony in gross is a form of property settlement, see TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala. Civ. App. 2003), the purpose of an award of alimony in gross is to award an amount for the present value of a spouse’s future support. Reuter v. Reuter, 623 So.2d 735, 736 (Ala. Civ. App. 1992). “Alimony in gross is intended to compensate a [spouse] for the inchoate marital rights and right to future support which [he or she] loses by virtue of the divorce, as well as substitute for a property settlement where liquidation of the marital property is not practical.” Andrews v. Andrews, 454 So.2d 1026, 1028 (Ala. Civ. App. 1984); see also Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974) (“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights — dower, homestead, quarantine, and distributive share.”). In Ex parte Parker, 334 So.2d 911, 912-13 (Ala. Civ. App. 1976), in discussing whether an obligation could be enforced through the courts’ contempt powers, this court, explained the difference between a property settlement or division and an award of alimony in gross as follows:

“The award of alimony has as its sole object the support of the [spouse] and is not tó be considered a property settlement. Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867 [ (1958) ].
“In the case at bar the intent of the agreement was for the wife to pay the husband for his interest in some property he was giving up, as evidenced by a note and mortgage, not to give support to the wife or to compensate her for her lost inchoate property rights as would be the. case in the award of alimony in gross. This ordinary money obligation is not attended with any of those peculiar equitable considerations which attach to alimony.”

See also Dolberry v. Dolberry, 920 So.2d 573, 576-79 (Ala. Civ. App. 2005) (a provision ordering a husband to pay $15,000 for the wife’s equity‘in the marital home constituted a property settlement and not an award of alimony in gross).

In this case, the wife asked the trial court for an award -of $25,000 because, she contended, she had contributed significant amounts of money to the marriage, and she sought that award as what she: maintained would be an equitable division of the marital property. The trial court considered that request and the evidence and, in its judgment, awarded the wife a “property settlement” of $20,000. Given the nature of the wife’s request, i.e., that it was for recoupment of a portion of her claimed financial contribution to the marriage and not a form of future support, as well as the trial court’s specific determination that it had fashioned a “property settlement,” I believe the main opinion errs in characterizing the property settlement as an award of alimony,in gross. See Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala. Civ. App. 1992) (this court will not presume error on the part of the trial court).

Although, at the end of the trial, she withdrew her claim for personal property that had still been in dispute during the trial, the wife continued, to seek'an equitable division of the parties’ marital property. The trial court expressly divided the parties’ property, and I conclude that the record demonstrates that the $20,000 award was intended to divide marital property rather than to provide a current payment for the wife’s future support. Ex parte Parker, supra; Dolberry v. Dolberry, supra. I would affirm the trial court’s division of property. Accordingly, I respectfully dissent.

      . The judgment denotes the award of $20,000 as a property settlement. The dissent takes issue with our characterization-of the award as an award of .alimony in gross. 232 So. 3d at 247-48. As explained infra, the judgment required payments at specified tinies, and- the obligation was vested — the two criteria for classification as alimony in gross. See Le Maistre v. Baker, 268 Ala. 295, 105 So.2d 867 (1958). In Pressnell v. Pressnell, 519 So.2d 536, 537 (Ala. Civ. App. 1987), we noted the historical equation of alimony in gross with a property settlement in Alabama:
      "In the landmark case on alimony in gross in Alabama, the supreme court distinguished between 'periodic alimony’ and ‘alimony in gross.’ See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Unlike periodic alimony, the court held, alimony in gross is nonmodifiable and in the nature of ‘a property settlement award, compensating the wife only for the loss of her rights in her husband’s estate.’ Hager, 293 Ala. at 55, 299 So.2d at 751.
      "Although the cases that follow Hager sometimes use the word ‘support’ in discussing alimony in gross, the word is typically used in the following context:
      " ‘Alimony in gross is intended to compensate a wife for the inchoate marital rights and -right to future support which she loses by virtue qf the divorce, as well as substitute for a property settlement where liquidation of the marital property is not practical.’
      "Andrews v. Andrews, 454 So.2d 1026, 1028 (Ala. Civ. App. 1984).”
      Numerous, other opinions have equated an award of alimony in gross with a property settlement. See, e.g., Ex parte Cole, 538 So.2d 22, 23 (Ala. 1989): Lambert v. Lambert, 22 So.3d 480, 485 (Ala. Civ. App. 2008); TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala. Civ. App. 2003); Akridge v. Abridge, 738 So.2d 1277, 1278 (Ala. Civ. App. 1999); Ex parte Manakides, 564 So.2d 983, 987 (Ala. Civ. App. 1990); Powers v. Powers, 518 So.2d 140, 140 (Ala. Civ. App. 1987); and Cherry v. Cherry, 422 So.2d 784, 786 (Ala. Civ. App. 1982).

      . The husband and the wife filed individual income-tax returns during the marriage. The husband’s 2009 through 2012 income-tax documents indicated that, each year, his taxable income, derived exclusively from his retirement benefits, had been less than $23',000.

      . We have not overlooked the wife's testimony that, from 2009 through 2013, she had used funds from the checking account for her nonprofit business to pay over $25,000 for deer-processing supplies.

      . The relevant portion of the divorce judgment provides, in pertinent part:
      "4. As a property settlement, [the wife] is awarded the sum of $20,000. This sum shall be paid by the husband in any of the following methods:
      "a. In one lump sum of $20,000, payable within 45 days hereof; '
      "b. In six annual installments of $3,000, plus a final installment of $2,000, the first installment due [within] 45 days hereof, with annual installments due every 12 months thereafter;
      "c. In equal monthly payments of $250 until said sum is paid in full, with the first payment due by June 5, 2016, and successive payments due by the 5th of the month thereafter;
      “d. In monthly.payments of-$200 for the months of March, April, May, June, July, August, September, and October, and $350 for the months of November, December, ■January, and February, with the first payment due by June 5; 2016, and successive payments due. by the 5th of every month thereafter;.

        ■ „ "e; Whether option c. or d. is chosen, the total of $3000 must be paid for every 12 months for the first six years. ”

      . Specifically, during closing arguments, the wife’s attorney argued in pertinent part, the following:
      "This lady rightfully or wrongly poured tens of thousands of dollars for this man’s benefit, some for her benefit, $276,000. That’s not smok[e and mirrors]. That’s up there. It’s dollars and cents. And she’s simply saying, Ray, the audacity you ask me to cover your future expenses relative to your non-feasance as to not reporting on your deer processing, hey, I think you owe me. And that’s why we’re asking for the sum of $25,000 from him to be paid over a period of time to compensate her for the large amounts .of money that he enjoyed during this ten-year marriage.... That’s what we’re asking for,...”
      (Emphasis added.)

      . In the closing arguments, the wife's attorney stated that "[the wife] is withdrawing a claim relative to the personal property which the Court heard.” In its judgment, the trial court noted that "[the wife,] at trial, withdrew her demand for certain personal property remaining at issue and in the possession of [the husband].”


author: ■WELCH, Judge.

text:
    Thomas McMEANS v. STATE of Alabama.
    CR-15-0295.
    Court of Criminal Appeals of Alabama.
    Aug. 12, 2016.
    Thomas McMeans, pro se.
    Luther Strange, atty. gen-., and Stephen N. Dodd, asst. atty. gen., for appellee.
   ■WELCH, Judge.

Thomas McMeans appeals the circuit court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. The petition challenged his July 11, 2013, convictions for first-degree rape, a violation of § ISA — 6—61(a)(1), Ala.Code 1975, and second-degree rape, a violation of § 13A-6-62(a)(l), Ala.Code 1975, and his resulting concurrent sentences of 30 years in prison and ten years in prison, respectively.

This Court affirmed McMeans’s convictions and sentences on appeal in an unpublished memorandum issued on April 25, 2014. See McMeans v. State (No. CR-12-1825), 184 So.3d 466 (Ala.Crim.App.2014) (table).

After his application for in forma pau-peris status was denied, McMeans paid a filing fee on February 17, 2015 (C. 33), and filed the instant petition. The petition, McMeans’s first, was timely.

McMeans filed the standard Rule 32 form found in the appendix to Rule 32, Ala. R.Crim. P. As grounds for his claims, McMeans selected the constitutional ground 12(A)(9) on the form (denial of effective assistance of counsel), as well as grounds 12(B) (the court was without jurisdiction to render judgment or to impose the sentence) and 12(C) (the sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law).

Petitioner’s Claims

McMeans raised a number of claims in a supplement to the petition; however, claim III(C) is the only claim pleaded with sufficient specificity to require the trial court to receive evidence pursuant to Rule 32.9. In claim III(C) McMeans alleged that the trial court erred when “[t]he trial judge entered a judgment of conviction and sen-fenced the defendant on both the greater and lesser included offenses.” (C. 14.) Because the resolution of that claim will be the dispositive issue on appeal, we preter-mit discussion of McMeans’s other claims.

McMeans’s claim III(C), though inartfully pleaded, alleged that he was indicted twice for the same act of sexual intercourse with the same victim, in violation of the right to be free from double jeopardy. He asserted that following a single act, he was convicted both of first-degree rape based on forcible compulsion and of second-degree rape because the victim was less than 16 years old and more than 12 years old.

State’s Response

The State filed a response alleging that McMeans’s claim III(C) was based on an incorrect statement of the law. The State cited Allen v. State, 472 So.2d 1122 (Ala. Crim.App.1985), for the proposition that second-degree rape was not a lesser-included offense of the offense of first-degree rape.

Circuit Court’s Order

The circuit court issued the following order dismissing McMeans’s petition:

“ORDER
“This matter comes before the Court on [McMeans’s] Petition for Relief from Conviction or Sentence, along with a response from the State of Alabama, and a response in opposition and a motion for summary judgment filed thereto by [McMeans]. [McMeans] was tried and convicted on the charge of Forcible Rape (Rape in the 1st Degree) and Statutory Rape (Rape in the 2nd Degree) and was sentenced on July 11, 2013, to 30 years for the Forcible Rape and 10 years for the Statutory Rape, with the sentences to run concurrent with each other. The Alabama Court of Criminal Appeals affirmed the conviction on April 25,2014. '
“[McMeans] has alleged four grounds for relief:
“1. That the Constitution of the United States or of the State of Alabama requires a new trial, a new sentencing proceeding, or other relief.
“2. That trial and appellate counsel was ineffective.
“3. That the court was without jurisdiction to render judgment or impose the sentence.
“4. That the sentence imposed exceeds the maximum authorized by law, or. is otherwise not authorized.
“The Claims raised by [McMeans] are precluded by Rule 32.2(a)(3) and 32.2(a)(5), and 32.6(b).
“The claims raised by [McMeans] in his petition fail to meet the requirement of Rule 32.6(b), due to bare allegations without specific factual support, and are further precluded by Rule 32.2(a)(3) and 32.2(a)(5), and the claim that trial counsel was ineffective further fails to meet the requirements of Strickland v. Washington [,466 U.S. 668 (1984)]. It is therefore
“ORDERED ADJUDGED and DECREED that [McMeans’s] Petition for Relief from Conviction or Sentence and [McMeans’s] request for an evidentiary hearing be and the same are hereby denied.”

(C. 51-52.)

Standard of Review

When reviewing, a circuit court’s summary dismissal of a postconviction petition “ ‘[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.’” Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009) (quoting Hunt v. State, 940 So.2d 1041, 1049 (Ala. Crim.App.2005)). If, however, the circuit court bases its determination on undisputed facts, “and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo. State v. Hill, 690 So.2d 1201, 1203 (Ala.1996).” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

Discussion

On appeal, McMeans reasserts the claims raised in his petition. He has, somewhat inexpertly, pleaded facts sufficient to allege that he was subjected to double jeopardy and that the trial court did not have jurisdiction to adjudge and sentence him for both first-degree rape and second-degree rape under the facts proven at trial.

The Alabama Supreme Court has specifically recognized only two double-jeopardy claims that implicate the jurisdiction of the trial court: (1) multiple convictions in a single proceeding for the same offense under the same statute, see Ex parte Robey, 920 So.2d 1069 (Ala.2004); and (2) multiple convictions in a single proceeding for both a greater and a lesser-included offense, see Ex parte Benefield, 932 So.2d 92 (Ala. 2005).

In Ex parte Washington, 571 So.2d 1062 (Ala.1990), the Alabama Supreme Court held that, under the facts Of that case, which are identical in all relevant circumstances to the facts in this case, the offense of second-degree rape, a violation of § 13A-6-62(a)(l) was a lesser-included offense of first-degree rape, a violation of § 13A-6-61(a)(l), when both offenses related to the same single act. In that case the Alabama Supi-eme Court held:

“The indictment in this case read as follows:
“‘The Grand Jury of said County charge that, before the finding of this indictment,
“ ‘CLARENCE KEY WASHINGTON, alias CLARENCE K. WASHINGTON, alias KEITH WASHINGTON,
■“‘whose name is otherwise unknown to the' Grand Jury, a male, did engage in sexual intercourse with [W.M.], a female, by forcible compulsion, in violation of Section 13A-6-61 of the Code of Alabama.’
“The petitioner cites in support of his argument that rape in the second degree is not a lesser included offense of rape in the first degree the case of Allen v. State, 472 So.2d 1122 (Ala.Cr.App.1985). In that case the Court of Criminal Appeals did hold that rape in the second degree was not a lesser included offense of rape in the first degree when the victim is over 12 and the indictment charges rape in the first degree under § 13A-6-61(a)(3). We find that case to be distinguishable from this case. In Allen, the indictment alleged that the defendant was 16 years old or older and that'the victim was less than 12 years old, but the proof at trial showed that the victim was 12 years old at the time of the offense. Therefore, the trial court dismissed the indictment for rape in the first degree, and the State was allowed to reindict the defendant for rape in the second degree, because, under those facts, rape in the second degree was not a lesser included offense of rape in the first degree. In that case, Allen was indicted under § 13A-6-61(a)(3), which makes the ages of the defendant and the victim necessary elements of the crime, and the ages specified in § 13A-6-61(a)(3) (defendant 16 years old or older and victim less than 12) necessarily exclude the ages needed to prove rape in the second degree under § 13A-6-62(a)(l) (defendant 16 years or older and victim less than 16 and more than 12 years old — the facts of this case). Thus, Allen stands for the proposition that rape in the second degree under § 13A-6-62(a)(l) is not a lesser included offense of rape in the first degree under § 13A-6-61(a)(3), because of the different proof of ages required.
“In the present ease, however, Washington was not indicted under § 13A-6-61(a)(3); he was indicted under § 13A-6-61(a)(l), engaging in sexual intercourse with a female by forcible compulsion. The ages of the defendant and the victim are not necessary elements under § 13A-6-61(a)(l). The facts that the State would have brought forth in this case to prove forcible compulsion would have included the ages of Washington and the victim. If this case had gone to a jury, Washington would have been entitled to a jury instruction on second degree rape, as , defined in. § 13A-6-62(a)(1), the section of the Code Washington was charged with violating, and the charge to which he entered a plea of guilty. ■
“The Court of Criminal Appeals has held that, under the proper facts, a jury in a case involving a defendant indicted for rape in the first degree can be instructed on rape in the second degree as a lesser included offense. In Beavers v. State, 511 So.2d 951, 954-55 (Ala.Cr.App.1987), the court stated:
'“‘The appellant contends that the trial court erred in' instructing the jury on rape in the second degree. He cites Allen v. State, 472 So.2d 1122 (Ala.Crim.App.1985) in support of his contention that rape in the second degree is not a lesser included offense of rape in the first degree, therefore, the judge’s jury charge, under this indictment, which charged rape in the first degree, constituted reversible error. We disagree.
“ ‘This appellant was charged with “forcible compulsion” rape under § 13A-6-61 (a)(1), Code of Alabama 1975. The court charged on- second degree rape under § 13A-6-62(a)(l). The evidence supported this charge since the appellant was clearly over 16 years old and the victim was 14 years old at the time. Had the jury concluded that no forcible compulsion existed then, under the evidence,, it would have been authorized to convict the appellant of second degree rape under the evidence presented. See Sharpe v. State, 340 So.2d 885 (Ala.Crim.App.), cert. denied, 340 So.2d 889 (Ala.1976).
“ ‘In Allen, supra, the appellant was charged in the indictment with a violation of § 13A-6-61(a)(3), and not forcible compulsion rape under § 13A-6-61(a)(1), as was the case here. Based on the differing age- factors under the two statutes, and in light of the specific offense charged in that particular indictment, we held that second degree rape was not a lesser included offense of first degree rape...,
“‘Where, as here, the indictment charges forcible compulsion rape in the first degree, and the evidence supports a charge on rape in the second degree,-.a jury charge on rape in the second degree is not erroneous since the proof necessary here to establish rape in the first degree, of necessity established every element of rape in the second degree.’
“(Emphasis original.)
“All or fewer than all the facts of this case that would establish commission of first degree rape would also establish every element of second degree rape. Therefore, under these facts, rape in the second degree.is a lesser included offense of rape in the first degree, and the State could amend the indictment.” .

571 So,2d at 1063-65.

A trial Court does not have jurisdiction to adjudicate and sentence a defendant in a single proceeding for both a greater and & lesser-included offense. In Ex parte Benefield, 932 So.2d 92 (Ala. 2005), the Alabama Supreme Court held:

“In 2000, Benefield pleaded guilty to first-degree sexual abuse, first-degree rape, and first-dégree sodomy. He was sentenced for each offense, and he did not appeal. In January 2005, Benefield filed a Rule 32 petition challenging his guilty-plea convictions.
• “In his' Rule 32 - petition, Benefield claimed, in pertinent part, that his convictions for first-degree rape and first-degree sexual abuse arose ‘from a single transaction ■ involving the same victim,’ and that, therefore, the convictions violated his double-jeopardy rights. Thus, he argued, ‘the [trial] court lacked jurisdiction to adjudicate and sentence [him] as guilty of both charges.’ (Emphasis added.) Finally, Benefield alleged that his claim raised ‘a true .jurisdictional issue, [which] is not subject to the preclu-sions [of Rule 32.2(a) ] or the limitations period [of Rule 32.2(c) ].’ (Emphasis added.)
“We granted certiorari review to consider Benefield’s claim that the Court of Criminal Appeals’ holding that his- double-jeopardy claim is nonjurisdictional conflicts with its decision in Rolling v. State, 673 So.2d 812 (Ala.Crim.App.1995), and with this Court’s decision in Ex parte Robey, 920 So.2d 1069 (Ala. 2004). In Rolling, the defendant appealed ‘from the circuit court’s denial of his Rule 32, Ala. R.Crim. P., petition in which he contested] his ... convictions for felony murder and reckless manslaughter.’ 673 So.2d at 813. In his petition, Rolling asserted, in pertinent part, ‘that because his two convictions [were] based on the same act — the killing of Jim Godfrey — they violate his right against double jeopardy.’ 673 So.2d at 813. The Court of Criminal Appeals held that ‘this double jeopardy claim goes to the jurisdiction of the trial court to render judgment,’ and that, therefore, ‘Rolling’s double jeopardy/jurisdictional issue [was] not precluded by operation of the limitations period.’ 673 So.2d at 816.
“In Robey, the defendant was convicted of two counts of assault in the first degree based on injuries suffered by Jessie McNabb as the result of a motor-vehicle accident involving Robey’s vehicle. This Court held that ‘punishing Robey twice for the same offense — first-degree assault — violated his double-jeopardy rights.’ 920 So.2d. at 1073. Further, this Court stated:
“ ‘The violation of Robey’s double-jeopardy rights raises questions of the trial - court’s, jurisdiction to enter a judgment on both assault counts. See Ex parte McKelvey, 630 So.2d 56, 57 (Ala.1992)(“If the trial court imposed the sentence on [the defendant] without jurisdiction to impose the consecutive sentences for burglary and theft, then [the defendant’s] ground for appeal was not procedurally barred by his failure to object at his sentencing hearing.”). Therefore, Robey is not barred from asserting in this successive Rule 32 petition the violation of his double-jeopardy rights.’ ”

932 So.2d at 92-94.

Therefore, McMeans has pleaded facts sufficient, if proven to be true, to establish that he was subjected to double jeopardy by being convicted of both the greater offense of first-degree rape and the lesser-included offense of second-degree rape. As a result, McMeans is entitled to an evidentiary hearing to prove that the trial court did not have jurisdiction to adjudge and to sentence him for .both offenses.

Conclusion

Based on the foregoing, this Court must remand this cause to the circuit court for that court to enter a new order addressing the merits of McMeans’s double-jeopardy claim. In making factual determinations, the circuit court may take judicial notice of the record in McMeans’s 2013 rape trial, and, should the circuit court deem it necessary, it may take evidence by any means set forth in Rule 32.9, Ala. R.Crim. P. If the court finds that McMeans'was subjected to double jeopardy, the trial court may vacate one of the convictions or grant whatever other relief it deems necessary. In any event, the circuit court shall issue specific written findings of fact regarding claim III(C). Due return shall be filed within 60 days of the date of this opinion, and shall include the circuit court’s written findings of fact, a transcript of the eviden-tiary hearing, if one is conducted, and any other evidence received and/or relied on by the court in making its findings, except that a transcript of McMeans’s 2013 trial, which this court already possesses as a result of MeMeans’s direct appeal, need not be included if the court states that it has reviewed the transcript.

REMANDED WITH DIRECTIONS.

WINDOM, P.J., and KELLUM and JOINER, JJ., concur. BURKE, J., concurs in the result.

      . McMeans filed the same petition twice. After his application for in forma pauperis status was denied, McMeans apparently sent a copy of his petition to the clerk when he paid the filing fee. The clerk assigned the .61 case extensions to the second filing. (C. 36-37.)

      . McMeans was indicted for first-degree rape in case no. CC-12-0061 and later for second-degree rape in case no. CC-13-0014. The trial court granted the State's motion to consolidate the two cases before trial.

      . The Court of Criminal Appeals may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App. 1992); Ex parte Salter, 520 So.2d 213, 216 (Ala.Crim.App.1987). We have examined the record of the trial in McMeans’s direct appeal, McMeans v. State (No. CR-12-1825), 184 So.3d 466 (Ala.Crim.App.2014) (table), and note that the victim testified to only one act of rape and specifically disavowed any other acts of rápe perpetrated against her by McMeans.

       Note from the reporter óf decisions: On March 17, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: WINDOM, Presiding Judge. WELCH, Judge,

text:
    Mitchell Vann GLAZE v. CITY OF ALABASTER
    CR-15-1385
    Court of Criminal Appeals of Alabama.
    December 16, 2016
    Rehearing Denied February 3, 2017
    Certiorari Denied March 10, 2017
    Alabama Supreme Court 1160378
    Derek Brandon Simms, Birmingham, for appellant.
    Jeffrey W. Brumlow, Trussville, for ap-pellee.
   WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

Burke and Joiner, JJ., concur, Welch, J., dissents, with opinion. Kellum, J., not sitting.

WELCH, Judge,

dissenting.

The majority affirms Mitchell Vann Glaze’s conviction and sentence for driving under the influence of a substance other than alcohol or a controlled substance, a violation of § 32-5A-191(a)(5), Ala. Code 1975. I disagree with the majority’s holding and with the faulty legal analysis it sets out as support for the holding.

The majority, in its unpublished memorandum, summarizes the evidence as follows:

“At approximately 10:00 p.m. on July 29, 2015, Officer Kareem McCann observed Glaze driving erratically on the interstate. As a result, Officer McCann initiated a traffic stop. During the stop, Glaze had slurred speech, constricted pupils, trouble following directions, and delayed responses to Officer McCann’s orders. Additionally, when asked if he had taken any medication, Glaze initially responded that he had not taken anything, but then later admitted that he had taken Suboxone, a controlled substance, that morning.”

Glaze v. State (No. CR-15-1385, December 16, 2016), — So.3d—, (Ala. Crim. App. 2016)(table).

The majority correctly sets out the relevant legal principles. After quoting from this Court’s analysis in Sturgeon v. City of Vestavia Hills, 599 So.2d 92 (Ala. Crim. App. 1992), regarding the elements of § 32-5A-191(a)(5), Ala. Code 1975, that must be pleaded and proved to sustain a conviction, the majority states: “Thus, in order 'to sustain a conviction under § 32-5A~191(a)(5), Ala. Code 1975, the State must prove that the defendant was under the influence of a substance other than alcohol, a controlled substance, or a combination thei’eof.”

Then, failing to follow the legal principles it set out, the majority states, briefly and erroneously, that,

“[bjecause Officer McCann initiated the traffic stop at approximately 10:00 p.m., it is reasonable to infer that he was no longer under the influence of the Subox-one he took early that morning. It is also reasonable to infer that if Glaze was not under the influence of Suboxone or alcohol, then some other substance besides alcohol or a controlled substance accounted for his intoxication.”

Neither inference'is supported by fact.

“Ah inference is merely a permissible deduction from the proven facts which the jury may accept or reject or give such probative value to as it wishes.” Browning v. State, 429 So.2d 653, 654 (Ala. Crim. App. 1982). “A reasonable inference is an inference of a fact which follows as a natural consequence from known collateral effects.” Andrews v. State, 473 So.2d 1211, 1216 (Ala. Crim. App. 1985). “‘An inference can be drawn only from facts, and mere possibilities will not sustain a legitimate inference.’ ” Greer v. State, 563 So.2d 39, 43 (Ala. Crim. App. 1990)(quoting Rungan v. State, 25 Ala.App. 287, 288, 145 So. 171, 172 (1932)). “ ‘ “Evidence ... which affords nothing more than meré speculation, conjecture, or guess is insufficient to warrant the submission of a case to the jury.” Sprayberry v. First Nat’l Bank, 465 So.2d 1111, 1114 (Ala. 1984).’ Finley v. Patterson, 705 So.2d 826, 830 (Ala. 1997).” Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1074 (Ala. 2006).

The majority cannot make a reasonable inference regarding Glaze’s intoxication here. It can guess, it can surmise, it can speculate, it can suppose, it can conjecture; what it cannot do is draw a reasonable inference that Glaze was not under the influence of Suboxone and that he was, instead, under the influence only of-some noncontrolled substance. The majority’s-inferences are based solely on the very things that do not support a reasonable inference — conjecture, guesswork, speculation,, and surmise. A reasonable inference is one that is based on underlying facts, and there are no underlying facts upon which the majority’s inferences were based. Therefore, the inferences were unreasonable and cannot support the trial court’s denial of Glaze’s motion for a judgment of acquittal.

Officer Kareem McCann, who initiated the traffic stop and who was the only witness at Glaze’s trial, testified about his observations ’of Glaze and Glaze’s performance on field-sobriety tests. McCann also testified that, based on his contact with Glaze, he arrested Glaze for driving while under the influence of “any substance” other than a controlled substance or alcohol. Glaze made a motion for a judgment of acquittal that the trial court denied, then he recalled McCann to the stand. Under cross-examination by the State, McCann testified that he was taught at the police academy that constricted pupils were small and sensitive to light. The State asked, “Does it indicate that [the person] may be under the influence of some substance even if you don’t know what that substance is?” (R. 36.) McCann answered, “That’s correct.” (R. 36.)

McCann then testified, under questioning by Glaze, as follows:

“Q [Defense counsel:] Tell me what your training from the [police] academy tells you about pupils.
“A [McCann:] That when they’re constricted as such, that they are:normally under the influence of some type of substance. It didn’t specify what substance.
“Q You’re not telling the Court, that based on looking at someone’s pupils you could identify whether someone was under the influence of a cpntrolled -substance or a substance that is not a.controlled substance? ..
“A No sir. But I’m stating that whatever substance that he had taken at the time was not allowing him to safely operate the vehicle.
“Q But you can’t say whether it was a controlled substance or some other substance, right?
“A No sir.”

(R. 37.)

The record reflects a complete absence of any evidence underlying that Glaze was not still under the influence of Suboxone, or that he was under the influence of a substance other than alcohol or any controlled substance while he • was driving. There was no evidence as-to the strength of the-dose of Suboxone Glaze said he took earlier in the day, there was ho evidence as to the amount of time-that had passed since Glaze took the Suboxone, there was no evidence as to the half-life of Suboxone and, as a result, there was no evidence as to whether the drug was still in Glaze’s system and whether it would have affected Glaze’s behavior in the way MeCahn observed.-The majority’s bald assertion that Glaze was no longer under the influence of the Suboxone he took earlier that day is wholly unsupported by any evidence and, instead, amounts to rank speculation.

The majority’s inference that Glaze was under the influence of “some substance” other than Suboxone is equally unreasonable. Glaze’s erratic driving and inability to satisfactorily complete field-sobriety tests could have been caused by reasons other than being under the influence of “some substance.” Although McCann testified that he believed Glaze was under the influence of a substance, he forthrightly testified that he did not know whether that substance was a controlled substance or some other ' substance. That testimony, alone, supported Glaze’s motion for a judgment of acquittal. No reasonable person could have come to the conclusion, based on the facts presented, that Glaze was under the influence solely of a substance other than alcohol or. Suboxone or some other controlled substance.

• The State is not required to present results from a blood test in all driving-under-the-influenc’e cases but,- in this case, the State’s failure to present any test results showing that Glaze was under the influence of a substance other than Subox-one, alcohol, or another controlled substance led to its failure to present a prima facie case of a violation of § 32-5A-191(a)(5), Ala. Code 1975. The majority’s inferences aré based bn speculation and cannot buttress the State’s insufficient case. A defendant should not be convicted on mere speculation; and the trial court erred when it denied Glaze’s motion for a judgment of' acquittal. The majority has failed to right that wrong.

For the foregoing reasons, I dissent.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Arturo DOPAZO, III, Respondent.
    No. SC15-1305
    Supreme Court of Florida.
    [October 5, 2017]

      John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, Adria E. Quíntela, Staff Counsel, The Florida Bar, Sunrise, Florida, and Patrick Russell, Bar Counsel, The Florida Bar, Miami, Florida, for Complainant
    Andrew S. Berman of Young, Berman, Karpf & Gonzalez, P.A., Miami, Florida, for Respondent
   PER CURIAM.

We have for review a referee’s report recommending that Respondent, Arturo Dopazo, III, be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar Rules) and suspended from the practice of law for sixty days. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee’s findings of fact and recommendation as to guilt. However, as discussed below, we disapprove the referee’s recommended •sanction and instead suspend Dopazo from the practice of law for one year.

FACTS

In July 2015, The Florida Bar filed a complaint against Dopazo, alleging that he engaged in misconduct in violation of the Bar Rules. The Bar made two distinct claims in its Complaint. First, the Bar alleged Dopazo participated in a patient-client recruiting scheme orchestrated by a nonlawyer, in which Dopazo obtained clients and paid the nonlawyer for those client -referrals. Second, the Bar alleged Dopazo either directly himself or through an employee or agent knowingly solicited Penny Jones, the mother of a brain-injured child at the hospital, while the child was in a coma. A referee was appointed to consider the matter. Following a hearing, the referee submitted his report, in which he made the following findings and recommendation.

On December 22, 2011, after a federal trial on the matter concluded, the Federal Bureau of Investigation sent the Bar materials concerning the investigation and subsequent. indictment of two nonlawyers for their involvement in an illegal patient-client recruiting scheme with medical clinics involving local lawyers. After reviewing those materials, the Bar suspected Dopazo to have been involved in the scheme and to have paid for client referrals. At the final hearing,- the Bar presented evidence- that Dopazo provided thirty-one payments to Miami-Dade Services, Inc., suggesting Do-pazo made these payments as part of the scheme to receive potential client information. Dopazo acknowledged the payments but explained they were made on letters of protection for healthcare services furnished to his clients at the medical clinics. The, Bar admitted there was no “smoking gun” to directly support its allegation that Dopazo was involved in the patient-client recruiting scheme.

■In'March 2007, days after her son suffered traumatic-brain injury as the result of a motor vehicle injury, Penny Jones was approached at Jackson Memorial Hospital Ryder Trauma Center by Dopazo, who successfully solicited her to become a client of his for a fee. There was no prior relationship between Jones and Dopazo, nor were his legal services sought by her or anyone acting on her behalf. The referee. found that Dopazo’s appearance at the hospital was completely unexpected, and while-she did apparently retain his services at that time, Jones’ limited education and fragile emotional condition at the time likely rendered her unable to make a rational decision whether to retain counsel or reject Dopazo’s -efforts to sign her up as a client. In defense of his actions, Dopazo' claimed that his office called him and told him to go see Jones in the hospital intensive care unit; however, the referee found that this explanation was insufficient.

The referee found that the Bar lacked clear and convincing evidence that Dopazo was involved in the patient-client recruiting scheme. However, the referee did find that Dopazo solicited. Jones in March 2007. The referee recommends that Dopazo be found guilty of violating Bar Rule 4-7.18 (Direct Contact with Prospective Clients). While the referee does not explicitly identify the aggravating or mitigating factors, it appears he found as.aggravating factors (1) Dopazo’s prior disciplinary offense of solicitation and (2) the vulnerability of Jones, and found as mitigating factors (1) unreasonable delay in disciplinary proceedings, to which Dopazo did not substantially contribute • and from which Dopazo suffered prejudice, and (2) character or reputation.

Based on his findings of fact, recommendation as to guilt, and the aggravating and mitigating factors, the referee recommends that Dopazo be suspended from the practice of law for sixty days and that he be ordered to pay the Bar apportioned costs because it was only partially successful in proving the charges by clear and convincing evidence. Dopazo seeks review of the referee’s recommendation of guilt. The Bar seeks cross-review of the referee’s recommended sanction of a- sixty-day suspension.

ANALYSIS

Dopazo challenges the referee’s recommendation that he be found guilty of violating Bar Rule 4-7.18. To the extent he challenges the referee’s findings of fact for the rule violation, the Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla. 2000); see Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla. 1998). To the extent Dopazo challenges the recommendation as tó guilt, the Court has repeatedly stated that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to .guilt. .See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla. 2005), The -party challenging the referee’s findings of fact and conclusion as to guilt has the burden to demonstrate that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions. Fla. Bar v. Germain, 957 So.2d 613, 620 (Fla. 2007).

Dopazo argues Jones’’ testimony is not credible because of several discrepancies in her testimony throughout the investigation. Jones informed FBI investigators that the individual at the hospital had dark blonde hair and that the person who approached her in the hospital stated he represented Dopazo but was not actually Dopazo himself. At the final hearing, Jones testified that Dopazo himself approached her in the hospital and admitted her testimony had changed throughout the course of the investigation from 2009 until 2016, but repeatedly stated she remembered the best she could given the traumatic experience with her son and how long, ago it occurred.

The record reflects Jones testified that she did not request a lawyer while she was in the intensive care unit with her son, did not request anyone else to find her a lawyer, did not have anyone contact Dopazo’s office on her behalf, was not looking for a lawyer, and had no personal relationship with Dopázo before the encounter at the hospital. Jones also testified that she was approached by Dopazo at the hospital, met him two or three times at the hospital, and later went to his office to pick up her settlement check, where she briefly saw him again. She also identified Dopazo in the courtroom as the individual who approached her in the hospital.

Because “the referee is in a unique position to assess witness credibility, this Court will not overturn his judgment absent clear and convincing evidence.” Germain, 957 So.2d at 621; Fla. Bar v. Batista, 846 So.2d 479, 483 (Fla. 2003). After hearing testimony from several witnesses, the referee found Jones to be a credible witness , and accepted her testimony over Dopazo’s testimony. The record also supports the referee’s factual findings, as Jones testified directly to the issue of solicitation in the final hearing. While Jones’ testimony appears to be inconsistent as to some facts, Jones consistently maintained that she did not contact Dopazo or request anyone she knew to contact Dopazo on her behalf for legal representation. Thus, the referee inherently found this testimony credible over Dopazo’s testimony and found that Dopazo directly solicited Jones, in violation of Bar Rule 4-7.18.

Accordingly, because the referee was in the best position to judge the demeanor of the witnesses and their sincerity during the final hearing, and because the record evidence supports the referee’s factual findings, we approve the referee’s findings of fact and recommendation as to guilt.

Next, the Bar asks the Court to find one additional aggravating factor and disapprove of the referee’s findings as to one mitigating factor. Dopazo suggests the referee should have found one additional mitigating factor. “[A] referee’s findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record. A referee’s failure to find that an aggravating factor or mitigating factor applies is due the same deference.” Germain, 957 So.2d at 621 (internal citation omitted).

First, the Bar suggests the referee should have found that Dopazo had a selfish motive as an aggravating factor. Here, the referee carefully weighed the evidence presented at trial. Because there was not testimony in the record pertaining to this aggravating factor, the referee’s failure to find this aggravating factor is not clearly erroneous. Second, the Bar challenges the referee’s finding of the mitigating factor of unreasonable delay in the disciplinary proceedings. In this case, the solicitation incident occurred sometime between March 28, 2007, and April 4, 2007. The' Bar learned of Dopazo’s possible solicitation of Jones on''December 20, 2011, when the FBI turned over interview forms to the Bar after the Rodriguez federal patient-client scheme trial had concluded. On April 18, 2012, the Bar sent its first inquiry letter to Dopazo, and on July 15, 2015, the Bar filed. its complaint against Dopazo. The final hearing occurred from April 4, 2016, through April 6, 2016. The Bar argues it did not contribute to the delay, as it had no way of knowing about the possible solicitation of Jones until the FBI turned over its findings in December 2011, and the Bar acted promptly in sending an inquiry within four months after receiving the FBI materials. Nonetheless, a formal complaint was not filed until July 2015, more than eight years from the incident in question. At the final hearing in 2016, testimony showed that witnesses’ memories had faded due to the time lapse between the incident nine years prior and the final hearing. Thus, the referee’s finding on this mitigating factor is not clearly erroneous.

Dopazo argues the referee should have found, as a. mitigating factor the remoteness of his prior offense. Dopazo entered a consent judgment to a public reprimand for solicitation on August 24, 2004, for conduct that occurred in 2002. The solicitation of Jones occurred in March or April 2007, which was not even three years after the consent judgment for solicitation. Thus, at the time Dopazo solicited Jones, his public reprimand should have been fresh in his mind, especially because, he committed the same rule violation of solicitation a second time. See Germain, 957 So.2d at 622 (finding the mitigating factor remoteness of prior offense did not apply because the previous disciplinary case was resolved only three years before the misconduct spurring the later disciplinary case, even when this Court entered its final disposition of the case nearly six years later). Additionally, the rule violation in Dopazo’s prior disciplinary case is the same as the rule violation in the instant case, so the remoteness of prior offense is less relevant. See Fla. Bar v. Varner, 992 So.2d 224, 230 (Fla. 2008) (referee properly did not find remoteness of prior disciplinary history as a mitigating factor because the facts of the most recent 2001 disciplinary case were very similar to the present case). Therefore, the referee’s failure to find remoteness of the prior offense was not clearly erroneous. Accordingly, we approve the referee’s findings of aggravating and mitigating factors in full.

We now turn to the referee’s recommended sanction, a sixty-day suspension. The Bar urges the Court to disapprove this sanction and impose a two-year suspension. In reviewing a referee’s recommended discipline, the Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla. Const. At the same time, the Court will generally not second-guess the referee’s recommended discipline, as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla. 1999).

The Florida Standards for Imposing Lawyer Sanctions (Standards) support suspension as a sanction for unethical solicitation. See Fla. Stds. Imposing Law. Sanes. 7.2. Additionally, Standard 8.2 provides that when a lawyer previously has been “publicly reprimanded for the same or similar c'onduct and engages in further similar acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession,” suspension is appropriate. Because Dopazo received a public reprimand for solicitation in 2004, the Standards support a suspension in this case.

In cases involving unethical solicitation of clients, this Court has imposed a range of sanctions depending on the specific facts of each case. Fla. Bar v. Barrett, 897 So.2d 1269, 1276 (Fla. 2005); see Fla. Bar v. Wolfe, 759 So.2d 639, 646 (Fla. 2000) (one-year suspension); Fla. Bar v, Weinstein, 624 So.2d 261, 262 (Fla. 1993) (disbarment); Fla. Bar v. Stafford, 542 So.2d 1321, 1323 (Fla. 1989) (six-month suspension); Fla. Bar v. Sawyer, 420 So.2d 302, 303 (Fla. 1982) (eighteen-month suspension); Fla. Bar v. Gaer, 380 So.2d 429, 430 (Fla. 1980) (public reprimand).

Here, case law supports the Bar’s assertion that the referee’s recommended sanction of a sixty-day suspension is too lenient. In Weinstein, this Court disbarred a lawyer who solicited a stranger who was hospitalized with brain damage after a motorcycle accident when the lawyer also committed a series of lies to execute the solicitation. 624 So.2d at 261-62. In Wolfe, this Court suspended a lawyer for one year when he solicited clients door to door after a series of tornadoes struck several counties in Florida, damaging homes and killing or injuring a large number of people. 759 So.2d at 640. Similar to the victims in Weinstein and Wolfe, Jones was a'vulnerable victim; she was consumed by her emotions and lacked a clear mind to consider hiring a lawyer because her son was in a critical condition after a brain injury from an accident. The solicitation rule exists to protect potential clients from this very situation in which lawyers act unethically to take advantage of potential clients, casting distrust on the legal profession as a whole. Wolfe, 759 So.2d at 645.

In cases where the lawyer has been previously disciplined for engaging in conduct of a similar nature, this Court typically takes an incremental approach in imposing discipline, increasing the severity of discipline in each instance. See Fla. Bar v. Norkin, 132 So.3d 77, 92 (Fla. 2013); Fla. Bar v. Morgan, 938 So.2d 496, 499-500 (Fla, 2006). Dopazo previously received a public reprimand for solicitation in 2004, and he has committed the same rule violation a second time by soliciting Jones in this case. Therefore, a more severe sanction is warranted because Dopazo committed the same conduct for which he was previously disciplined. Further, “the Court has moved toward imposing stronger sanctions for unethical and unprofessional conduct” to protect the legal profession from dishonor and disgrace. Fla. Bar v. Rosenberg, 169 So.3d 1155, 1162 (Fla. 2015).

Unethical violations of the solicitation rule, such as the ones committed by Dopa-zo in this case, have the potential to harm people who are already in a vulnerable condition and bring dishonor and disgrace on the entire legal profession. This Court will not tolerate these improper solicitations and will “impose severe sanctions on those who commit violations of them.” Barrett, 897 So.2d at 1277. Therefore, we conclude that a one-year suspension from the practice of law is warranted in this case.

CONCLUSION

We approve the referee’s findings of fact and recommendation as to guilt, but disapprove the referee’s recommended sanction of a sixty-day suspension and instead impose a one-year suspension. Accordingly, Arturo Dopazo, III, is hereby suspended from the practice of law for one year. The suspension will be effective thirty days from the filing of this opinion so that Do-pazo can close out his practice and protect the interests of existing clients. If Dopazo notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Dopazo shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Dopazo shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Arturo Dopazo, III, in the amount of $6,769.35, for which sum let execution issue.

It is so ordered.

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