author: PITTMAN, Judge.

text:
    COLONY HOMES, LLC, Mark Schlauder, and William Spriggs v. ACME BRICK TILE & STONE, INC.
    2160209
    Court of Civil Appeals of Alabama.
    July 14, 2017
    Jared N. Lyles, Silverhill, for appellants.
    J. Michael Williams, Sr., Auburn, for appellee.
   PITTMAN, Judge.

Colony Homes, LLC ("Colony"), Mark Schlauder, and William Spriggs appeal from a summary judgment entered by the Baldwin Circuit Court ("the trial court") in favor of Acme Brick Tile & Stone, Inc. We dismiss the appeal in part and affirm the judgment of the trial court.

Factual Background and Procedural History

In 2011, Brick Acquisition Company, which was a Delaware corporation and a subsidiary of Acme Brick Company, a Delaware corporation, purchased some of the assets of Jenkins Brick & Tile Company, LLC, which included, among other things, the right to use the name "Jenkins Brick" and any derivatives of that name. In 2012, Brick Acquisition Company, using the name Jenkins Brick Company, entered into a written contract ("the contract") with Colony, a company that acts as a general contractor in the construction business. Under the terms of the contract, Brick Acquisition Company agreed to provide Colony with bricks, mortar, and other building materials on credit, and Colony agreed to pay Brick Acquisition Company for them. Schlauder and Spriggs, who are associated with Colony, personally guaranteed Colony's performance under the contract. In 2014, Brick Acquisition Company changed its name to Acme Brick Tile & Stone, Inc. ("Acme"). In December 2015, Acme began supplying bricks, mortar, and other building materials on credit to Colony for the construction of a house ("the house") for Gary R. Bernard and Jacqueline R. Bernard in Baldwin County and for use in other construction jobs. In April 2016, Acme recorded a materialman's lien against the house, alleging that Acme was owed $7,086.22 for bricks, mortar, and other building materials used to construct the house, plus interest and an attorney fee.

In May 2016, Acme sued Colony, Schlauder, and Spriggs, stating claims seeking recovery of $11,337.14 for bricks, mortar, and other building materials that Acme had supplied Colony on credit for the construction of the house and for use in other construction jobs, plus interest, costs, and an attorney fee. In July 2016, when Colony, Schlauder, and Spriggs had failed to answer the complaint or otherwise defend, Acme sought and obtained default judgments against them that awarded Acme $11,337.14 in damages to compensate Acme for the debt Colony, Schlauder, and Spriggs owed Acme, plus costs, interest in the amount of $844.23, and an attorney fee in the amount of $2,834.29. Colony, Schlauder, and Spriggs subsequently filed a motion asking the trial court to set aside the default judgments on the ground that their failure to answer had resulted from their mistaken belief that an answer had been filed on their behalf. Although Acme opposed the motion to set aside the default judgments, the trial court granted the motion.

Thereafter, Colony, Schlauder, and Spriggs answered Acme's complaint. Colony, Schlauder, and Spriggs subsequently filed (1) an amended answer in which they asserted that the contract required that Acme's claims be resolved by arbitration and (2) a motion asking the trial court to compel arbitration of those claims. Acme objected to the motion to compel arbitration, and, on September 8, 2016, the trial court entered an order sustaining Acme's objection to the motion to compel arbitration, which effectively denied that motion. Colony, Schlauder, and Spriggs did not file a notice of appeal challenging the trial court's order refusing to compel arbitration within 42 days after the entry of that order.

Thereafter, Acme filed a motion for a summary judgment with respect to its claims against Colony, Schlauder, and Spriggs and supported the motion with evidence. Colony, Schlauder, and Spriggs then filed a response and evidence in opposition to the summary-judgment motion. On November 8, 2016, the trial court entered a summary judgment in favor of Acme and against Colony, Schlauder, and Spriggs, which awarded Acme $11,337.14 in compensation for the debt Colony, Schlauder, and Spriggs owed Acme, interest on that debt in the amount of $1,285.91, and an attorney fee in the amount of $7,174.27. Colony, Schlauder, and Spriggs filed a notice of appeal to this court on December 20, 2016.

Standard of Review

"[An appellate court's] review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). [The appellate court] appl[ies] the same standard of review as the trial court applied. Specifically, [the appellate court] must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, [the appellate court] must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce 'substantial evidence' as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989) ; Ala. Code 1975, § 12-21-12. '[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assur. Co. of Fla., 547 So.2d 870, 871 (Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004).

Analysis

Colony, Schlauder, and Spriggs first attempt to challenge the trial court's September 8, 2016, order refusing to compel arbitration of Acme's claims. However, Colony, Schlauder, and Spriggs did not file a notice of appeal challenging that order within 42 days after September 8, 2016, the date that order was entered. Rule 4(d), Ala. R. App. P., provides:

"An order granting or denying a motion to compel arbitration is appealable as a matter of right, and any appeal from such an order must be taken within 42 days (6 weeks) of the date of the entry of the order, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure."

Colony, Schlauder, and Spriggs did not seek an extension of the 42-day period to file a notice of appeal challenging the trial court's September 8, 2016, order refusing to compel arbitration of Acme's claims. Therefore, they were required by Rule 4(d) to file a notice of appeal within 42 days after the entry of that September 8, 2016, order to invoke this court's jurisdiction to review that order. See Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1262 (Ala. 2010) (holding that notice of appeal filed more than 42 days after the entry of an order ruling on a motion to compel arbitration failed to invoke the appellate court's jurisdiction to review that order). Rule 2(a)(1), Ala. R. App. P., provides: "An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court." Therefore, we dismiss the appeal insofar as it seeks appellate review of the trial court's September 8, 2016, order refusing to compel arbitration of Acme's claims. See Lighting Fair, 63 So.3d at 1262 ("Because the Rosenbergs' appeal of the trial court's order granting Taylor and Taylor Homes' motion to compel arbitration is untimely, this Court is without jurisdiction to consider it. Accordingly, we must dismiss that portion of the Rosenbergs' appeal.").

Colony, Schlauder, and Spriggs next argue that the trial court erred in entering a summary judgment in favor of Acme because, they say, Acme failed to submit any evidence establishing that it had delivered to Colony the bricks, mortar, and other building materials for which it sought payment. In support of its summary-judgment motion, Acme submitted, among other things, an affidavit signed by Polly Willis, which stated, in pertinent part:

"Comes now Polly Willis, Collection Department Manager for Acme Brick Tile & Stone, Inc., f/k/a Jenkins Brick Company .... I do provide this Affidavit of Damages in the above-styled case, verified under oath and I do have personal knowledge of the facts set forth below:
"....
"2. The affiant is over the age of nineteen years and is competent to provide this affidavit. I am responsible for the collection of this account and I am the custodian of the attached documents which are kept in the normal course of business at my office and copies of some documents are kept in the Mobile office.
"3. The unpaid balance of the account of the defendants as of May 23, 2016, the date of the filing of the complaint, was $11,337,14. The unpaid balance was for bricks and other building materials sold to the defendants. Accrued finance charges from February 14, 2016, to October 1, 2016 are $1285.91, for a total debt owed as of this date of $12,623.05. Per diem finance charges thereafter are $ 5.59.
"....
"6. Exhibits and Documents. I do submit the following in support of the Acme summary judgment and in support of the damages we claim and I do state that I am a custodian of these records and they are kept in the normal course of our business and are to be exhibits in the trial of this matter.
"....
"D. The statement of account dated 5/31/16 for Colony Homes, LLC."

(Emphasis added.) Exhibit D to the Willis affidavit lists, among other things, the order numbers for materials sold to Colony, the date of those orders, the address to which the materials were delivered, and the balance owed on those orders. Although Colony, Schlauder, and Spriggs asserted in their response to Acme's summary-judgment motion that the documents submitted with Willis's affidavit were inadmissible because, Colony, Schlauder, and Spriggs said, the documents constituted hearsay, Colony, Schlauder, and Spriggs did not file a motion to strike either Willis's affidavit or any of the documents submitted with her affidavit. In Ex parte Secretary of Veterans Affairs, 92 So.3d 771 (Ala. 2012), our supreme court stated:

"In Perry v. Mobile County, 533 So.2d 602 (Ala. 1988), this Court adopted the following language from C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2738 (2d ed. 1983) :
" ' "A party must move to strike an affidavit that violates Rule 56(e) [, Ala. R. Civ. P.]; if he fails to do so, he will waive his objection and, in the absence of a 'gross miscarriage of justice,' the court may consider the defective affidavit. This principle applies to affidavits containing evidence that would not be admissible at trial as well as to affidavits that are defective in form. The motion to strike must be timely, [and] the decision on that question is left to the discretion of the trial judge. It is clear that a motion to strike presented for the first time on appeal comes too late.
" ' "The court will disregard only the inadmissible portion of the challenged affidavit and consider the rest of it .... [A] motion to strike should specify the objectionable portions of the affidavit and the grounds for each objection. A motion asserting only a general challenge to an affidavit will be ineffective." '
" 533 So.2d at 604-05 (emphasis added).
"Cases decided after Perry have not always been clear in holding that a party challenging the admissibility of an affidavit must object to the affidavit and move to strike it. ... We take this opportunity to reaffirm the holding in Perry that a party must move the trial court to strike any evidence that violates Rule 56(e), Ala. R. Civ. P. An objection to the inadmissible evidence alone is not sufficient. The motion to strike brings the objection to the trial court's attention and requires action on the part of the trial court to properly preserve the ruling on appeal."

92 So.3d at 776-77 (footnote omitted).

Because Colony, Schlauder, and Spriggs failed to file a motion to strike Willis's affidavit or the documents submitted with it, the trial court properly considered that affidavit and those documents. Willis's affidavit and Exhibit D to her affidavit constituted substantial evidence establishing that Acme had delivered to Colony the bricks, mortar, and other building materials for which it sought payment. Colony, Schlauder, and Spriggs did not submit any evidence indicating that Acme had not delivered any of the bricks, mortar, or other building materials for which it sought payment. Therefore, we find no merit in Colony, Schlauder, and Spriggs's argument that Acme failed to establish that it had delivered to Colony the bricks, mortar, and other building materials for which Acme sought payment.

Finally, Colony, Schlauder, and Spriggs argue that the trial court erred in awarding Acme an attorney fee in the amount of $7,174.27 because, Colony, Schlauder, and Spriggs say, the amount of the fee was excessive and because only Colony, Schlauder, and Spriggs were made responsible for the entire fee despite the fact that the Bernards had caused Acme to incur some of its attorney fee. However, Colony, Schlauder, and Spriggs have not cited any legal authority whatsoever in support of this argument. The only legal authority cited in their appellate brief with respect to the award of attorney fees appears in the "Statement of the Standard of Review" wherein Colony, Schlauder, and Spriggs state, in pertinent part:

"Traditionally, the award of attorney's fees is one that is within the discretion of the trial court, and should not be disturbed upon appeal unless the trial court exceeded its discretion. However, 'a trial court's order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee.' City of Birmingham v. Horn, 810 So.2d 667, 682 (Ala. 2001). In this case, there was no such finding by the Court specified in the Order, and as such, the standard of review for the award of attorney's fees should be de novo."

(Emphasis added.)

Because Colony, Schlauder, and Spriggs have not argued that the failure of the trial court to articulate in its judgment "the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee" constituted reversible error, we could consider City of Birmingham v. Horn, 810 So.2d 667, 682 (Ala. 2001), as legal authority supporting a reversal of the trial court's judgment regarding the attorney fee only if this court created that argument for them. However, "[i]t is not the function of this court to advocate a position on behalf of an appellant or to create a legal argument for the appellant. McLemore v. Fleming, 604 So.2d 353 (Ala. 1992) ; Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala. 1992)." Schiesz v. Schiesz, 941 So.2d 279, 289 (Ala. Civ. App. 2006).

With respect to the argument Colony, Schlauder, and Spriggs have actually made regarding the attorney fee, their failure to cite any legal authority whatsoever provides this court with a basis for disregarding that argument. See Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1 (Ala. 2007). In Smith, our supreme court stated:

" Rule 28(a)(10), Ala. R. App. P., requires that arguments in an appellant's brief contain 'citations to the cases, statutes, other authorities, and parts of the record relied on.' Further, 'it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides [an appellate court] with a basis for disregarding those arguments.' State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 822 (Ala. 2005) (citing Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001) ). This is so, because ' "it is not the function of [an appellate court] to do a party's legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument." ' Butler v. Town of Argo, 871 So.2d 1, 20 (Ala. 2003) (quoting Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala. 1994) )."

964 So.2d at 9. Accordingly, because Colony, Schlauder, and Spriggs have not cited any legal authority in support of the argument they actually make regarding the attorney fee, we decline to consider that argument.

APPEAL DISMISSED IN PART; AFFIRMED.

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

      Acme also sued the Bernards, stating a claim seeking to perfect its lien against the house. However, by agreement of all the parties, that claim was ultimately dismissed without prejudice and is not pertinent to this appeal.

      Colony, Schlauder, and Spriggs also pleaded a cross-claim against the Bernards, and the Bernards pleaded a cross-claim against Colony, Schlauder, and Spriggs. However, by agreement of all the parties, those cross-claims were ultimately dismissed without prejudice and are not pertinent to this appeal. In August 2016, the Bernards sued Colony, Schlauder, Spriggs, and three other individuals associated with Colony in a separate action, stating various claims sounding in contract and tort. The Bernards then filed a motion asking the trial court to consolidate Acme's action and the Bernards' action; however, Acme objected to the consolidation of those actions, and the trial court denied the motion. Thus, the Bernards' action is not pertinent to this appeal.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Katherine Parker DILLARD v. Anthony Thomas LEPORE
    2160295
    Court of Civil Appeals of Alabama.
    July 14, 2017
    Keith E. Brashier of Burns, Brashier & Johnson, LLC, Birmingham, for appellant.
    Samantha Rush, Birmingham, for appellee.
   THOMAS, Judge.

Katherine Parker Dillard ("the mother") appeals a judgment of the Jefferson Circuit Court ("the circuit court") awarding Anthony Thomas LePore ("the father") sole physical custody of the parties' child ("the child"). Because the circuit court's judgment is void, we dismiss the appeal.

Background

The child was born on July 24, 2006; the parties have never been married. In 2007, the Jefferson Family Court ("the juvenile court") entered a judgment that, among other things, adjudicated the child's paternity, determined custody of the child, and provided for child support. In 2012, the juvenile court entered a judgment modifying the 2007 judgment that appears to have, among other things, awarded the parties joint legal custody of the child, awarded the mother sole physical custody of the child, and required the father to pay child support. In February 2014, the mother filed a petition for a rule nisi requesting that the juvenile court find the father in contempt for allegedly violating certain aspects of the juvenile court's 2012 judgment. The mother's petition also requested that the juvenile court modify portions of its 2012 judgment. The mother's action was given a ".02" case designator and was docketed as a separate action ("the .02 action"). The father answered the mother's petition.

In November 2014, the father filed a modification petition in the juvenile court seeking an award of "primary residential and custodial privileges." The father's action was given a ".03" case designator and was docketed as a separate action ("the .03 action"). Later that month, the parties filed a joint motion to consolidate the .02 action and the .03 action, which the juvenile court later granted. In August 2015, the father filed in both actions a "motion to modify child support" that was not given a new case designator or docketed as a separate action.

The juvenile court conducted a trial in August 2015 and thereafter rendered a written judgment. Although the style of the judgment referred only to the .02 action, the body of the judgment addressed the relief requested in each action. Specifically, the judgment dismissed the .02 action, pursuant to the mother's request at trial, and denied the relief requested by the father in the .03 action. The judgment was entered in only the .02 action on September 20, 2015. On October 1, 2015, the father filed in each action a notice of appeal to the circuit court. See § 12-12-70(a), Ala. Code 1975. On October 12, 2015, the juvenile court's judgment was entered in the .03 action. The father did not file a notice of appeal from that judgment.

After conducting a trial de novo, the circuit court entered a judgment on October 12, 2016, awarding the father sole physical custody of the child, setting forth the mother's scheduled visitation periods, and requiring the mother to pay child support. The mother filed a postjudgment motion on November 11, 2016, which the circuit court denied on December 12, 2016. The mother thereafter filed a timely notice of appeal to this court on January 23, 2017.

Analysis

On appeal, the mother argues that the circuit court's award of sole physical custody to the father was erroneous and that the circuit court lacked subject-matter jurisdiction to conduct a trial de novo regarding the .03 action because the father did not file a notice of appeal from the juvenile court's judgment in that action. In response, the father contends that the mother has waived her arguments because, he says, she has failed to cite the record and relevant supporting authority and has therefore not complied with the requirements of Rule 28(a)(10), Ala. R. App. P. However, "[t]he issue of subject-matter jurisdiction is ' "of such magnitude that we take notice of [it] at any time and do so even ex mero motu." ' " G.W. v. Dale Cty. Dep't of Human Res., 939 So.2d 931, 934 (Ala. Civ. App. 2006) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala. Civ. App. 1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ). We must therefore consider whether the circuit court had subject-matter jurisdiction over the father's appeal in the .03 action.

At the outset, we note that the .02 action and the .03 action were consolidated after the parties submitted a joint motion to the juvenile court; however, "Alabama law is well settled that consolidated actions maintain their separate identities, and separate judgments are to be entered in each action." Satterwhite v. Rodney Byrd Millenium Props., Inc., 180 So.3d 890, 898 (Ala. Civ. App. 2015). Although the juvenile court entered a judgment in each action, the father filed his notice of appeal in the .03 action before the juvenile court had entered its judgment in that action. Once the father filed his notice of appeal in the .03 action, the juvenile court lost subject-matter jurisdiction over that action during the pendency of the father's appeal in the circuit court. See Ward v. Ullery, 412 So.2d 796, 797 (Ala. Civ. App. 1982) ("Once an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal."). Because the juvenile court did not have subject-matter jurisdiction, the October 12, 2015, judgment that it entered in the .03 action was a nullity. See Ingram v. Alabama Peace Officers' Standards & Training Comm'n, 148 So.3d 1089, 1093 (Ala. Civ. App. 2014) ("An order or judgment entered by a trial court without subject-matter jurisdiction is a nullity.").

Moreover, because a valid final judgment had not yet been entered in the .03 action at the time of the father's appeal, the circuit court lacked subject-matter jurisdiction to conduct a trial de novo regarding the issues raised in the .03 action. See Bolden v. Wise Alloys, LLC, 5 So.3d 1287, 1289 (Ala. Civ. App. 2008) ("Because the [juvenile court's] judgment was rendered, but never input into the [State Judicial Information System], and therefore never entered, the judgment is a nonfinal judgment and will not support an appeal."). " 'A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' " Persons v. Persons, 10 So.3d 610, 613 (Ala. Civ. App. 2008) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) ).

"We therefore dismiss the appeal, albeit with instructions to the circuit court to vacate its void judgment and to transfer the [.03 action] back to the [juvenile] court." Rimpsey Agency, Inc. v. Johnston [Ms. 2150461, Sept. 2, 2016] --- So.3d ----, ---- (Ala. Civ. App. 2016). Once transferred, the juvenile court will reacquire subject-matter jurisdiction to enter a final judgment in the .03 action, from which the parties may appeal. Because we dismiss her appeal, we do not consider the mother's argument regarding the circuit court's award of sole physical custody to the father.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

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

      Although a copy of the 2012 judgment is not contained within the record on appeal, there is some indication that it actually purported to award the parties joint custody of the child with "the mother having primary physical custody." Under Alabama law, such an award is construed as an award of sole physical custody to the mother. See Harris v. Harris, 775 So.2d 213, 214 (Ala. Civ. App. 1999).

      We note that, although the father filed a notice of appeal to the circuit court in the .02 action, no justiciable controversy regarding that action remained because, at the mother's request, the juvenile court had dismissed the .02 action, and the father had therefore suffered no adverse ruling in that action. See Mobile Fuel Shipping, Inc. v. Scott, 375 So.2d 796, 797 (Ala. Civ. App. 1979) ("It is well settled that only an adverse ruling of the trial court is subject to an assignment of error and, consequently, reviewable on appeal.").


author: PER CURIAM. PITTMAN, Judge, dissenting.

text:
    EX PARTE Michael KEY
    (In re: Michael Key v. City of Irondale and Jefferson County Personnel Board)
    2160191
    Court of Civil Appeals of Alabama.
    July 14, 2017
    Scott Morro, Gardendale, for petitioner.
    Leslie M. Klasing of Waldrep Stewart & Kendrick, LLC, Birmingham, for respondent City of Irondale.
    Laura C. Nettles of Lloyd, Gray, Whitehead & Monroe, P.C., Birmingham, for appellee Jefferson County Personnel Board.
   PER CURIAM.

Michael Key petitions this court for a common-law writ of certiorari, seeking review of the decision of the Jefferson Circuit Court ("the circuit court") affirming an order of the Jefferson County Personnel Board ("the Personnel Board"). The Personnel Board's order suspended Key for 30 days without pay from his position as a police officer for the City of Irondale. Key's suspension was based on an allegation that Key had used excessive force against an inmate ("the inmate") in the Irondale City Jail. The Personnel Board, however, made an express factual finding in its order that Key's actions were "necessary to further restrain the [inmate], who subsequent to being restrained, continued to engage in conduct that could be deemed disruptive and could have potentially endangered the officers present." Key's suspension is inconsistent with this express factual finding and, therefore, lacks reasonable justification. Therefore, we grant the petition and reverse the circuit court's decision.

Facts and Procedural History

As previously indicated, Key is a law-enforcement officer with the City of Irondale ("Irondale"). On April 9, 2015, Irondale police officers, including Key, acted to restrain and control the inmate in the Irondale City Jail. The incident was recorded with the video cameras in the jail. On May 6, 2015, Lt. Jason Wiggins, the interim chief of police of Irondale, sent a notice to Key that he was being placed on administrative leave. The notice stated the following factual basis for the disciplinary action:

"It has come to my attention that on or about Thursday, April 9, 2015, you were recorded physically assaulting a prisoner in the Irondale jail. Specifically, you were recorded striking said prisoner repeatedly in the face. It is my understanding that at the time this incident took place, the prisoner was restrained and posed no threat of physical harm to you, other officers, or civilians, it is also my understanding that as a result of your actions the prisoner suffered a broken jaw.
"You were also recorded using a taser on a restrained subject."

On May 22, 2015, Wiggins sent Key notice of his decision to suspend him for 60 days without pay. As grounds for the suspension, Wiggins found that Key's actions violated the Irondale Use of Force Policy regarding the use of excessive force, the use of a Taser weapon against a restrained subject, and the use of a Taser weapon by an uncertified user. Wiggins also found that Key had demonstrated the following causes for disciplinary action under Jefferson County Personnel Board Rule 12.2: conduct unbecoming of a classified employee (Rule 12.2(c)); incompetence and inefficiency (Rule 12.2(g)); neglect of duty (Rule 12.2(j)); and any other legitimate and nondiscriminatory reason that constitutes good cause for disciplinary action (Rule 12.2(p)).

The Irondale Use of Force Policy provides the guidelines and procedures restricting the use of excessive force. Under the policy, police officers are authorized to use force "[t]o protect themselves and/or from physical attack" or "[t]o maintain order in the jail." The policy further provides:

"The officer's use of force must be reasonable and appropriate to the situation. An officer will only use the amount of force that is necessary to bring a situation under control. An officer must exercise their discretion and judgment when using force. Officers will only use weapons ... that the officer has been qualified in and are departmentally approved.
"An officer should always attempt to resolve any situation with the least amount of force necessary to effectively bring the situation under control. An officer should always exercise restraint, discretion, and good judgment. However, it is primarily the action(s) of the subject(s) and/or the totality of the circumstances that determine what level of force is to be used...."

The policy authorizes the use of a Taser weapon for the following purposes:

"1. To repel human and/or animal attacks
"2. To temporarily incapacitate violently resisting subjects
"3. To defend other officers and/or citizens
"4. To maintain order in the jail or to subdue a violent inmate or arrestee when lesser means of control have failed. The Taser is not to be used on an inmate/arrestee who is only being loud, boisterous, etc."

The policy specifies that "[o]fficers will not use the taser on subjects who are under physical restraint unless the subject(s) are still violently resisting and lesser means of controlling the subject(s) [have] failed."

It is undisputed that Key's employment was subject to the Jefferson County Personnel Board Rules and Regulations. On May 26, 2015, Key appealed his suspension to the Personnel Board. The Personnel Board appointed a hearing officer who conducted a hearing on August 27, 2015. On September 22, 2015, the hearing officer submitted a report and recommendation to the Personnel Board, which contained findings of fact and conclusions of law and recommended that the Personnel Board uphold the 60-day suspension without pay. The hearing officer provided the following summary of the testimony:

"1. Lieutenant Jason Wiggins: A report had been received by Lt. Wiggins about a disruptive and unruly inmate at the [Irondale] City Jail, who had been taken into custody after causing a disturbance in the municipal court. Lt. Wiggins explained that when he visited the jail on that occasion, he found that particular inmate in the holding area. Several other officers and a senior lead magistrate were also present at that time. The inmate expressed displeasure about, among other things, not being transported to the County Jail for processing.
"Shortly thereafter, Lt. Wiggins, who was also serving as the Interim Chief of Police at that time, left the [Irondale] City Jail to attend an employee appreciation banquet. He later received a call, as well as possibly a text message, from [Key] that the inmate was combative and needed to be placed in a restraint chair. Based on what he was aware of at the time, Lt. Wiggins had no problem with how the inmate had been treated, but he later learned that the inmate was taken to a hospital after having been tased earlier that evening by someone.
"Whenever a use of force occurs at the jail, a review is routinely undertaken relative to how such force was exercised. So he proceeded to locate the video recording of what had occurred. When he succeeded in doing so, after initially encountering some difficulty, what he saw concerned him because it appeared that an excessive amount of force had been used against the inmate. After discussing what had occurred, an incident report was prepared that led to a recommendation that [Key] be placed on administrative leave with pay.
"What seemed to bother Lt. Wiggins, after he had viewed the video recording of the incident, was that even though a de-escalation of the situation was underway, a taser had been used on the inmate while he had been restrained in the chair. "The police department's Use of Force Review Committee later reviewed the video recording, and determined that a 60-day suspension for Officer Key was appropriate disciplinary action for the excessive use of force that had been exercised by him against the inmate.
"During cross-examination, it was admitted by Lt. Wiggins that the inmate had also kicked a door open at the jail that struck another officer who was involved. Moreover, the inmate had spat at officers that night, as well as causing human waste to spill onto the floor of his jail cell. At that time, he further acknowledged, spit masks were not available to the officers who had been assigned to the jail.
"Nonetheless, Lt. Wiggins maintained that Officer Key had been suspended simply because he exercised an excessive level of force against the inmate that was in violation of the department's policy guidelines.
"In any event, Lt. Wiggins never denied that he had initially expressed his approval of how the inmate had been treated by [Key] and his fellow officers. It was only after he had the opportunity to view the video recording that he changed his mind about what had occurred. Because of that, he reached the conclusion that the tasing of the inmate had not been necessary.
"2. Lieutenant Paul Kellogg: Lt. Kellogg was primarily responsible for the operation of the [Irondale] City Jail at that time. As such, he learned after the fact that one of the prisoners had suffered a physical injury. While initially everything seemed routine to him about how the matter was handled, after Lt. Wiggins shared a video recording of what had occurred at the jail when the prisoner was injured, an investigation was initiated soon after the recording had been reviewed by the two (2) of them. An Abuse of Force Review Committee was then organized for the purpose of more closely examining what had occurred. That committee assessed the response of [Key] to [the inmate] because of his unruly and disruptive, and even hostile, behavior.
"According to Lt. Kellogg, circumstances typically dictate how much physical force an officer should utilize in any specific situation with attention to whether there is an escalation or de-escalation of relevant conditions. Sometimes the use of a taser could be appropriate, even when a subject has been restrained, if a properly trained officer is on the scene. Moreover, even a mere verbal threat, when accompanied by the ability to violently resist on the part of a subject, can warrant a response that entails the use of physical force. Ultimately, the Use of Force Review Committee determined that the three (3) blows delivered to the subject's head by Officer Key's elbow or triceps while [the inmate] had been restrained were excessive.
"During cross-examination, however, he conceded that the use of force standards from federal case law applied to street responses on the part of the officers rather than in a jail setting. He went on to confirm how the inmate had repeatedly spat at officers on duty at the jail, as well as causing human waste to flood onto the floor of his cell and beyond it. He recalled also how the inmate had claimed that he [had] tuberculosis. Additionally, a door at the jail had been kicked open by the inmate with enough force to cause it to strike another officer. Lt. Kellogg went on to testify that the inmate had stuffed clothing into the toilet in his cell, which had caused it to overflow.
"When asked about the use of tasers, he acknowledged that the standards promulgated by the department were more appropriate for the use of such devices on the street rather than in a jail setting, and that those standards may not be appropriate for use of a taser at the jail.
"He confirmed, as well, that spit masks were not available to the officers that had been on duty at the jail on that occasion, and that the restraint chair that had been used would not fit in the inmate's cell. When asked his opinion about how Officer Key reacted on that occasion, he described his reaction as having been merely unreasonable, rather than malicious or sadistic.
"Notwithstanding his view about Officer Key's behavior in this particular instance, he described him overall as being an exemplary officer. He went on to explain that, in trying to arrive at an appropriate level of discipline, the committee settled on a 60-day suspension in an effort to avoid the possible termination of his employment for such misconduct.
"To Lt. Kellogg, Officer Key appeared to have misinterpreted the inmate's actions.
"3. Mayor Tommy Joe Alexander: After being informed of respective 45-day and 60-day suspension recommendations for [Key], Mayor Alexander took it upon himself to make available to the City Council the video recording of what had occurred at the jail. He did so because he did not want any of them to have simply come across it while browsing the Internet. The timing of the incident had also been a concern, as well, because of other widely publicized incidents involving excessive use of force by local law enforcement personnel in other states.
"Mayor Alexander, after reviewing the video recording, therefore concluded that a 60-day suspension was the most appropriate disciplinary action that could be imposed. He reached this decision based, in great part, on his past experience as a law enforcement officer. While [Key] had a good service record overall, he considered the three (3) blows that were struck, along with the drive stuns inflicted by the taser, to have been excessive and evidence of malice aforethought. Nor did the provisions contained in § 14-6-95, [Ala. Code ] 1975, relative to the maintenance and supervision of local jails cause him to have any second thoughts about his decision. Because [Key] had lost his temper and poise, he believed that an admittedly serious measure of disciplinary action was in order.
"4. Mr. Ronald Kiker: The last witness to testify was [Key's] law enforcement consultant, Mr. Kiker, who was a paid expert. In his testimony, Mr. Kiker noted that under federal jurisprudence with respect to the Fourth, Eighth, and Fourteenth amendments to the federal Constitution, different standards are applied in determining the permissible levels of force to be exercised by law enforcement officers. According to him, when officers come into contact with members of the general public on the street, federal courts typically measure the level of force on their part under Fourth Amendment standards. And in those types of situations, federal courts seem to most often search for a standard of reasonableness. But in jail or prison settings, federal courts more typically look to Eighth Amendment standards relative to the infliction of cruel and unusual punishment, or those of the Fourteenth Amendment relative to equal treatment. Mr. Kiker went on to say that in jail or prison settings, more lenient standards have been applied under those two amendments because federal courts have recognized a greater need to maintain control and order in that type of environment.
"His basic criticism of the Use of Force and Firearm Procedures promulgated by the Irondale Police Department is that they adopt standards more appropriate for street situations rather than in the jail. Instead, he maintained, more lenient use of force standards need to be employed for the jail so as to allow for self-defense measures that do not constitute the wanton infliction of physical pain, or malicious or sadistic forms of behavior. For these reasons, Mr. Kiker concluded, the use of force standards employed by [Irondale] are in need of updating.
"Moreover, even though there was at least one prior occasion when [Key] had operated a taser after his certification had expired, he was not the subject of any disciplinary action at that time. As on this occasion, Sgt. [Mark] Meadows and Sgt. [Kyle] Robertson had been responsible for the review of that situation.
"Apparently, according to Mr. Kiker, [Key] had been trained on how to use a restraint chair, but never obtained any formal certification for such. He concluded, as well, that § 14-6-95, [Ala. Code ] 1975, could be enforced in any way that did not violate either the Eighth or Fourteenth amendments under federal jurisprudence."

The hearing officer made the following conclusions:

"Unfortunately for [Key] and the other officers who were on duty at the jail on the evening of April 9, 2015, an extraordinarily uncooperative inmate had to be taken into custody during their shift. As the reports received as evidence during the hearing on the merits, as well as the video recordings, tend to substantiate, the misbehavior on the part of [the inmate], that was likely criminal in nature, on that day led to him being physically restrained in a chair from which he was not allowed to rise up on his own.
"While [Key] and the other officers on duty were clearly justified in exercising that level of force to maintain order and discipline at [Irondale's] jail, what has become an issue at this point in time is whether the violent physical blows inflicted by [Key], along with the drive stuns of the taser he had in his possession at the time, amounted to a use of force that was unnecessary and excessive.
"It is maintained by [Key] that even though the inmate had been bound in the restraint chair, he was still able to maneuver the chair into different areas of the jail, wiggle his arms and legs to a limited degree, and project spittle at nearby jail personnel as they tried to control him, all the while claiming that he had been infected with tuberculosis. To that extent, at least, there is no dispute between the parties in these proceedings.
"What there is a dispute about, however, is whether [Key] was justified in striking the inmate repeatedly with his elbow and/or his triceps and applying drive stuns to his neck and/or head. These actions, the Complainant [i.e., Irondale Police Department] maintains, constituted excessive force on the part of [Key] that was not necessary to control the inmate's behavior.
"Fortunately, a video recording of many of the events that occurred at the jail on the evening of April 9th is included in the evidence received as Complainant's Exhibit 3. The Hearing Officer finds that Exhibit 3 serves to establish, by a preponderance of evidence that Rules 12.2(c), (g), (t), and (p), as well as the Department's Use of Force Policy, were violated by [Key].
"The Hearing Officer therefore concludes that, while the actions of [Key] were not sadistic or malicious, they were, at the very least, reckless in their nature. It is likely, as Mayor Alexander observed, that on this particular occasion an officer with a good overall record nonetheless lost his composure and let his temper get the better of him in dealing with an undeniably difficult inmate.
It may, in any event, be in [Irondale's] interest to review and update its use of force policies, as suggested by Mr. Kiker, to better reduce the prospects for litigation to ensue when someone like this particular inmate may be taken into custody sometime in the future.
"But the Hearing Officer is not persuaded, nor did Mr. Kiker assert, that anything prevents [Irondale] from developing standards of conduct for law enforcement officers that exceed whatever may have been established as minimally acceptable for such conduct to pass constitutional muster under the Eighth and Fourteenth amendments, and, in doing so, may well see fit to expect even more professional behavior that exceeds whatever is even required by the Fourth Amendment under federal jurisprudence.
"While [Key] was also in violation of the Department's policies relative to the use of taser devices, as charged, those violations are of only minor significance, particularly because of the undisputed evidence of [Irondale's] past failure to adhere to the provisions contained therein."

On September 24, 2015, Key filed objections to the hearing officer's recommendation. Among other contentions, Key argued that the testimony presented by his expert witness, Ronald Kiker, had exonerated him. At the hearing, Kiker had testified that the inmate was taken into custody in the municipal court for throwing a vase at the judge in a proceeding; that the inmate threatened the judge and police officers; that the inmate punched the walls in the booking room; that the inmate flooded his jail cell with water, urine, and feces from the toilet; that the inmate slung water outside the bars of his cell; and that the inmate was placed in a restraining chair while the police officers cleaned his cell. According to Kiker's testimony, the inmate was not completely restrained in the chair; the inmate was able to pull down his pants and defecate; the inmate began spitting at officers while claiming to have AIDS, hepatitis C, and tuberculosis ; and the officers did not have spit masks for protection. Kiker testified that, after the spitting began, Key gave the inmate oral directions and then applied pressure points to the inmate's neck to gain control. Kiker testified that the inmate continued spitting and that, in response, Key delivered three strikes to the inmate's head in a manner he had been taught as a defensive tactic while another officer stunned the inmate with a Taser weapon. Kiker testified that later the inmate again struggled against the restraints and possibly threatened or attempted to spit at Key, who then used a Taser weapon to stun the inmate until he became compliant. According to Kiker, Key's actions were necessary to control the inmate.

On October 13, 2015, the Personnel Board entered an order, stating:

"This matter is before [the Personnel Board] on the September 22, 2015, Hearing Officer's Findings of Fact and Law and Recommended Decision and [Key's] Objections to the Hearing Officer's Recommended Decision filed September 24, 2015.... The Hearing Officer found that there was sufficient basis for [Irondale] to suspend Respondent Key for 60 days without pay, for violation of [Irondale's] Use of Force Policy and Personnel Board Rule 12.2(c), (g), (j), and (p). Upon due consideration of all relevant parts of the record, [the Personnel Board] MODIFIES the Hearing Officer's Recommendation to uphold the 60-day suspension without pay, and instead reduces the suspension to thirty (30) days without pay from May 26, 2015 through June 25, 2015."
"[The Personnel Board's] decision to modify the Recommended Decision is based upon finding that the actions of Respondent Key were necessary to further restrain the prisoner, who subsequent to being restrained, continued to engage in conduct that could be deemed disruptive and could have potentially endangered the officers present."

(Capitalization in original.)

The legislation that established the Personnel Board provides that such orders of the Personnel Board may be appealed by either party to the circuit court where the appeal shall be heard before a panel of three judges. On October 20, 2015, Key filed an appeal of the Personnel Board's order to the circuit court, and the appeal was heard before a three-judge panel in the circuit court. On May 26, 2016, the circuit court entered an order upholding the decision of the Personnel Board. In its order, the circuit court referred to the deferential standard of review applicable to personnel-board determinations and held that substantial legal evidence supported the Personnel Board's decision.

On December 14, 2016, Key filed a petition for a writ of certiorari to this court. In addition to the parties' briefs on the issues, we requested and received letter briefs from the parties regarding whether the petition for a writ of certiorari had been timely filed.

Discussion

We first consider the contentions of Irondale and the Personnel Board that Key's common-law petition for the writ of certiorari to this court was untimely filed. "Section 22 of [Act No. 248, Ala. Acts 1945, as amended] provides that in appeals to the circuit court from adverse rulings of the [Personnel] Board, 'there shall be no appeal to any appellate court of Alabama.' " Ex parte Chambers, 137 So.3d 912, 915 (Ala. Civ. App. 2013). " ' "[T]he proper method of reviewing circuit court decisions involving appeals from the Jefferson County Personnel Board is by common-law petition for writ of certiorari." ' " Ex parte Jefferson Cty. Sheriff's Dep't, 13 So.3d 993, 995 (Ala. Civ. App. 2009) (quoting Ex parte City of Birmingham, 992 So.2d 30, 32 (Ala. Civ. App. 2008), quoting in turn Ex parte Personnel Bd. of Jefferson Cty., 513 So.2d 1029, 1031 (Ala. Civ. App. 1987) ). This court is the proper forum for such a petition pursuant to § 12-3-10 and -11, Ala. Code 1975. See e.g., Ex parte Dixon, 841 So.2d 1273, 1277 (Ala. Civ. App. 2002) ; Ex parte Smith, 394 So.2d 45, 47 (Ala. Civ. App. 1981) (holding that Court of Civil Appeals has jurisdiction over petitions for a writ of certiorari involving the orders of the Personnel Board, which is an administrative agency).

Now that we have determined that Key's petition for the writ of certiorari is the proper means to seek a review in this case, we address whether the petition was timely filed. Irondale and the Personnel Board argue that the petition is subject to the timeliness requirement in Rule 21(a)(3), Ala. R. App. P., which provides:

"The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate court shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time."

Irondale and the Personnel Board argue that Key's petition should have been filed within the same time for taking an appeal of the order, or within 42 days of the entry of the circuit court's order, under Rule 4(a)(1), Ala. R. App. P.

Rule 21(a)(3) specifically pertains to petitions for a writ of mandamus or of prohibition. Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000 ("The amendment to subsection (a) adds three sentences relating to the time allowed for filing a petition for the writ of mandamus or prohibition; its effect is to incorporate into the Rules of Appellate Procedure the requirement that a petition for a writ of mandamus or prohibition be filed within a reasonable time."). The timeliness requirement of Rule 21(a)(3) applies to petitions for other extraordinary writs through Rule 21(c), Ala. R. App. P., which provides:

"Application for extraordinary writs other than those provided for in subdivisions (a) and (b) of this rule shall be made by petition filed with the clerk of the appellate court having jurisdiction thereof with proof of service on the parties named as respondents. Except in the Court of Criminal Appeals, the petition shall be accompanied with payment of the docket fee as prescribed in Rule 35A[, Ala. R. App. P.] Proceedings on such application shall conform, so far as is practicable, to the procedure prescribed in subdivisions (a) and (b) of this rule."

We note that Key filed his petition 202 days after the entry of the circuit court's order without providing a statement of circumstances constituting good cause for a belated filing pursuant to Rule 21(a)(3).

Rule 21(e)(4), Ala. R. App. P., however, excludes certain cases from the purview of Rule 21, providing, in pertinent part:

"The term 'extraordinary writ' within the meaning of this rule encompasses the situation where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable. This rule does not apply to those cases where review in a court of appeals is normally had by way of an extraordinary writ. Such excluded cases include ... review of decisions of the three-judge Jefferson County panel or decisions of the Jefferson County Personnel Board...."

(Emphasis added.) But see Bell v. State, 217 So. 3d 962, 963 (Ala. Crim. App. 2016) (stating that Rule 21(c) should apply to a petition for a writ of certiorari to the Court of Criminal Appeals). Key's petition is not directed to an interlocutory order of the circuit court but, rather, is directed to a final order and is the only means by which the order may be reviewed by this court. Therefore, the petition for the writ of certiorari is the means by which review is "normally had" in these types of cases and does not seek "emergency and immediate appellate review." Rule 21(e)(4).

Although Rule 21(e)(4) is included within subsection (e) titled "Review in Supreme Court of Decisions of Courts of Appeals," the supreme court has consistently quoted language in Rule 21(e)(4) to refer generally to any petition for an extraordinary writ in an appellate court, not just petitions in the supreme court seeking review after a lower appellate court has issued a decision. See, e.g., Kappa Sigma Fraternity v. Price-Williams, 40 So.3d 683, 692 (Ala. 2009) (stating that Rule 21(c) and Rule 21(e)(4) allow "a party to apply for an extraordinary writ where the 'party seeks emergency and immediate appellate review' " of a trial court's order); Ex parte Brookwood Med. Ctr., 994 So.2d 264, 268 (Ala. 2008) ("Mandamus is an extraordinary writ by which 'a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable.' Rule 21(e)(4), Ala. R. App. P."). Given the plain meaning of the terms used in Rule 21(e)(4), we conclude that no provision of Rule 21 applies to petitions for the writ of certiorari to review decisions of the Personnel Board.

" 'We start with the basic premise that words used in court rules must be given their plain meaning.' Nieto v. State, 842 So.2d 748, 749 (Ala. Crim. App. 2002). In construing a rule promulgated by this Court, effect must be given to 'each word, phrase, and clause.' State v. Old West Bonding Co., 203 Ariz. 468, 471, 56 P.3d 42, 45 (Ct. App. 2002)."

Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala. 2004).

Moreover, we observe that the requirement of filing a petition within a presumptively reasonable time in Rule 21(a)(3) was added at the same time that Rule 21(e)(4) was modified to replace references unrelated to this type of case. Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000. Because the exclusion of petitions seeking "review of decisions of the three-judge Jefferson County panel or decisions of the Jefferson County Personnel Board" was retained in Rule 21(e)(4), the addition of the timeliness requirement in Rule 21(a)(3) does not appear to have been intended to apply to the types of cases excluded by Rule 21(e)(4). We therefore conclude that Rule 21(a)(3) does not apply to this petition.

We determine that the legal authority governing the timeliness of a common-law petition for a writ of certiorari remains the holding in Ex parte Smith, 394 So.2d 45, 48 (Ala. Civ. App. 1981), in which this court stated:

"[M]ere delay in filing a petition for a common law writ of certiorari is not a sufficient defense, Byars v. Town of Boaz, 229 Ala. 22, 155 So. 383 (1934). Such a petition should not be dismissed on grounds of delay unless the delay makes it unjust or unreasonable to grant the relief sought. Rudolph v. Rudolph, 251 Ala. 317, 36 So.2d 902 (1948)."

Irondale and the Personnel Board do not provide any reasons why Key's 202-day delay in filing this petition has created an unjust or unreasonable situation that would preclude granting Key the relief he seeks. We therefore proceed to review the decision of the three-judge panel of the circuit court.

Key argues that the circuit court should have found that the Personnel Board's order was unreasonable and arbitrary because he was suspended based on allegations of excessive force, but the Personnel Board expressly found that his actions were necessary to restrain the inmate. Irondale and the Personnel Board both argue that the circuit court properly affirmed the Personnel Board's order because, they assert, the order is supported by substantial evidence. Citing Ex parte Personnel Board of Jefferson County, 440 So.2d 1106 (Ala. Civ. App. 1983), Irondale asserts that, because this court's review "is limited to [determining] ... whether the ruling is supported by any legal evidence," we may disregard the Personnel Board's articulation for its decision as long as any legal evidence in the record provides reasonable justification for the ruling.

In Ex parte Personnel Board of Jefferson County, this court stated the standard of review of a personnel-board action:

"In general, the review by a court of any Personnel Board action is extremely limited. Templin v. City Commission, 279 Ala. 473, 187 So.2d 230 (1966). The determination of the weight and credibility of the evidence presented is solely within the province of the Board; the review here is limited to the proper application of the relevant law and whether the Board's ruling is supported by any legal evidence. Id. This narrow scope of appellate review is in keeping with the general principles underlying certain important doctrines in administrative law which come into play when judicial review of administrative actions is involved. See generally Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975) (exhaustion and primary jurisdiction doctrines).
"... When the legislature delegates a discretionary function to an agency to be exercised in light of the agency's special competency, a court frustrates legislative intent and usurps that discretionary role by stepping in when the agency's choice is not clearly unreasonable or arbitrary. See State ex rel. Steele v. Board of Education, 252 Ala. 254, 40 So.2d 689 (1949)."

440 So.2d at 1109. To disregard the Personnel Board's factual findings would be to disregard the mandatory obligation of our courts to defer to the Personnel Board's "determination of the weight and credibility of the evidence presented." Id. An appellate court's role in this case is limited to determining whether legal evidence supports the Personnel Board's factual determinations and whether the Personnel Board's decision is reasonable and not arbitrary.

The Irondale Use of Force Policy authorizes the use of force against a "violently resisting" inmate and to maintain control in the jail. The policy states: "An officer will only use the amount of force that is necessary to bring a situation under control" under the totality of the circumstances. The term excessive force generally refers to "[u]nreasonable or unnecessary force under the circumstances." Black's Law Dictionary 760 (10th ed. 2014). Testimony before the Personnel Board presented conflicting evidence regarding the allegation of the use of excessive force by Key. Depending upon the weight and credibility assigned to the testimony, sufficient evidence was available to support either a finding that Key used excessive force against the inmate or a finding that his use of force was reasonable and necessary. In its order, the Personnel Board specifically found that "the actions of Respondent Key were necessary to further restrain the prisoner, who subsequent to being restrained, continued to engage in conduct that could be deemed disruptive and could have potentially endangered the officers present." Because the Personnel Board's finding that Key's use of force was necessary is supported by legal evidence, we defer to the Personnel Board as to that finding; therefore, we review the order only to determine whether it was reasonable and not arbitrary.

Black's Law Dictionary 125 (10th ed. 2014) defines arbitrary as "1. Depending on individual discretion; of, relating to, or involving a determination made without consideration of or regard for facts, circumstances, fixed rules, or procedures. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact." " ' "A determination is not 'arbitrary' or 'unreasonable' where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards." ' "

Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 (Ala. 2006) (quoting City of Huntsville v. Smartt, 409 So.2d 1353, 1357-58 (Ala. 1982), quoting in turn Hughes v. Jefferson Cty. Bd. of Educ., 370 So.2d 1034, 1037 (Ala. Civ. App. 1979) ).

The basis of the charges against Key was the allegation of the use of excessive force. Because the Personnel Board's factual finding determined that Key's use of force was necessary, the Personnel Board lacked a reasonable justification for its order suspending Key without pay. We note that Key was also charged with use of a Taser weapon without certification. The Personnel Board, however, did not make a finding regarding that charge, and the hearing officer found Key's alleged uncertified use of a Taser weapon to be insignificant. Because the Personnel Board did not rely on that charge as a basis for its order, that charge and any evidence in support of it could not provide a basis for affirming that order. See Ex parte Personnel Bd. of Jefferson Cty., 440 So.2d at 1109 ("[T]he effect of the legislature's delegation of Jefferson County personnel decisions to the Jefferson County Personnel Board could be undermined if a reviewing court were allowed to uphold disciplinary actions on the basis of charges presented to but not passed upon the Board itself.").

For the foregoing reasons, we reverse the circuit court's judgment and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Pittman, J., dissents, with writing, which Thompson, P.J., joins.

PITTMAN, Judge, dissenting.

Rule 21(a)(3), Ala. R. App. P., states that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal," and Rule 4(a)(1), Ala. R. App. P., provides that an appeal is generally to be taken within 42 days of the entry of the pertinent order or judgment. Although Rule 21(e)(4), Ala. R. App. P., as the main opinion notes, precludes direct application of Rule 21(a)(3) to petitions seeking certiorari review of decisions of three-judge panels of the Jefferson Circuit Court exercising appellate review of orders issued by the Jefferson County Personnel Board, I view the 2000 adoption by our supreme court of Rule 21(a)(3) as a clear indication that that court would, if confronted with the question, deem the 202-day delay in this case between the entry of the circuit court's judgment and the filing of the certiorari petition as a circumstance under which it would indeed be "unreasonable to grant the relief sought" pursuant to the common-law standard set forth in Ex parte Smith, 394 So.2d 45, 48 (Ala. Civ. App. 1981) (in which less than 90 days elapsed between the pertinent judgment and the pertinent certiorari petition). Certainly, given that "this court treats cases ... in which review by this court has been sought of judgments of the Jefferson Circuit Court reviewing decisions of the Board[ ] as appeals for purposes of preparing records and briefs," Ex parte Chambers, 137 So.3d 912, 916 n.6 (Ala. Civ. App. 2013), there is no reasonable basis in a modern, computerized era for a certiorari petitioner to be afforded nearly five times the amount of time extended to appellants generally to initiate what is, in essence, appellate review. I thus believe the petition is due to be dismissed as untimely, and I therefore respectfully dissent from the main opinion.

Thompson, P.J., concurs.

      Rule 12.5(b) of the Jefferson County Personnel Board Rules and Regulations provides:
      "Conduct of Hearing by Hearing Officer. The hearing shall be before a Hearing Officer appointed by the Board. The Hearing Officer shall take testimony and other evidence offered in support and denial of such charges. Within five (5) Business Days of the close of the hearing, the Hearing Officer shall submit a Report and Recommendation to the Board, which shall contain findings of fact and conclusions therefrom upon all material issues presented at the hearing."

      See Act No. 248, Ala. Acts 1945, as amended by Act No. 562, Ala. Acts 1947, Act No. 927, Ala. Acts 1953, and Act No. 679 and Act No. 684, Ala. Acts 1977.

      Although the parties reference Rule 39, Ala. R. App. P., that rule regarding petitions for a writ of certiorari to our supreme court does not apply to a common-law petition for a writ of certiorari to this court. Ex parte Smith, 394 So.2d 45, 48 (Ala. Civ. App. 1981).


author: PER CURIAM. WELCH, Judge, dissenting.

text:
    Zachary Blake WALDEN v. STATE of Alabama
    CR-15-0577
    Court of Criminal Appeals of Alabama.
    October 21, 2016 Rehearing Denied December 9, 2016
    Mark John Christensen, Andalusia.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen.
   PER CURIAM.

The appellant, Zachary Blake Walden, was convicted of unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala. Code 1975, and unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975. The circuit court sentenced Walden to 97 months' imprisonment for the unlawful-possession-of-marijuana conviction and 1 year in jail for the unlawful-possession-of-drug-paraphernalia conviction. Walden was further ordered to pay $2,000 in fines, $100 to the Crime Victims Compensation Fund, $100 to the Department of Forensic Sciences, a $2,000 drug-demand-reduction fee, and court costs.

Walden does not challenge the sufficiency of the evidence on appeal. Therefore, a brief recitation of the facts is all that is necessary in this case. On March 8, 2011, Elba Police Officer Alva Carlson received a complaint about a "reckless driver coming down [Highway] 29 from Andalusia towards Gantt"; the report indicated that the driver was a black male and that he was driving a blue vehicle with a "helping schools" tag. (R. 37.) Officer Carlson drove in that direction and saw a vehicle matching the description parked at a house on Deer Run Road. Officer Carlson pulled up behind the vehicle and noticed Walden sitting in the front passenger seat. Walden exited the vehicle and asked Officer Carlson if there was a problem. Walden then closed the passenger door, despite Officer Carlson's demands to leave it open. After Walden closed the door, the driver of the vehicle began to drive away without Walden. Officer Carlson ordered Walden to sit down and wait while he followed and stopped the vehicle.

Officer Carlson yelled at the driver to stop several times and followed the vehicle onto a dirt road. As Officer Carlson followed the vehicle, he saw the driver throw a red cooler out the passenger side window. Officer Carlson turned on his lights and siren and noted that the "driver mashed the gas and refused to stop." (R. 39.) After a brief pursuit, the driver stopped the vehicle and fled the area on foot; he was subsequently apprehended with the assistance of another officer.

After arresting the driver, officers retrieved the red cooler and discovered a large bag of what was later determined to be marijuana inside. Officer Greg Jackson with the 22nd Judicial Circuit Drug Task Force testified that he was able to smell marijuana coming from the cooler before opening it. The names "Walden" and "Jimmy Kirkland" were written on the outside of the cooler along with some other numbers. (R. 44, 67.) Officers later searched the vehicle and discovered a coffee can containing several bags of marijuana on the passenger-side floorboard.

Officer Carlson transported the driver to the Covington County jail and then returned to the house on Deer Run Road. When Officer Carlson asked to speak to Walden, a woman who identified herself as Walden's mother informed him that Walden was not there anymore. Walden was later arrested.

Before the State rested, it informed the circuit court that it intended to introduce evidence of two convictions-a 2009 conviction for first-degree possession of marijuana in Dale County and a 2009 conviction for the unlawful distribution of a controlled substance (marijuana) in Covington County-under Rule 404(b), Ala. R. Evid, in order to show that Walden had the intent to possess the marijuana seized in this case. Defense counsel objected to the introduction of the convictions. After a discussion with the attorneys and over Walden's objection, the circuit court ruled that the State could introduce evidence of Walden's conviction for the unlawful distribution of a controlled substance for the purpose of showing "intent and knowledge as part of that constructive possession charge." (R. 118-19.) The circuit court sustained Walden's objection to the introduction of his conviction for possession of marijuana in the first degree. The State then offered a certified copy of Walden's 2009 conviction for the unlawful distribution of a controlled substance and the warrant affidavit regarding that conviction.

Later, the circuit court charged the jury and stated: "I charge you, ladies and gentlemen of the jury, that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense." (R. 141.)

After both sides rested and the circuit court instructed the jury on the applicable principles of law, the jury found Walden guilty of unlawful possession of marijuana in the first degree and unlawful possession of drug paraphernalia. This appeal followed.

Walden's sole contention on appeal is that the circuit court erred when it allowed evidence in violation of Rule 404(b). Specifically, Walden argues that the circuit court committed reversible error when it allowed the State to present evidence of his prior conviction for unlawful distribution of a controlled substance.

"The admission or exclusion of evidence is a matter within the sound discretion of the trial court." Taylor v. State, 808 So.2d 1148, 1191 (Ala. Crim. App. 2000), aff'd, 808 So.2d 1215 (Ala. 2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). This is equally true with regard to the admission of collateral-act evidence. See Davis v. State, 740 So.2d 1115, 1130 (Ala. Crim. App. 1998) ; see also Irvin v. State, 940 So.2d 331, 344-46 (Ala. Crim. App. 2005). In a discussion of collateral-act evidence, this Court stated: "If the defendant's commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible." Saffold v. State, 494 So.2d 164 (Ala. Crim. App. 1986).

Rule 404(b), Ala. R. Crim. P., provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

In the instant case, Walden's knowledge of the presence of marijuana was central to his charge and to the State's theory of constructive possession. See Poole v. State, 645 So.2d 330, 332 (Ala. Crim. App. 1994) ("When relying on constructive possession, the state must show the defendant had knowledge of the presence of the drugs at the place from which they were seized."). Furthermore, Walden placed his connection to and knowledge of the marijuana at issue through his cross-examination of the State's witnesses. (R. 76.) Walden's previous conviction was for the unlawful distribution of a controlled substance, specifically marijuana. This conviction showed that Walden was familiar with the smell of marijuana and that he had knowledge that there was marijuana inside of the cooler and coffee can when he sat in the passenger seat of the vehicle.

However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify the admission of that evidence.

" ' "Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects." ' Averette v. State, 469 So.2d 1371, 1374 (Ala. Crim. App. 1985), quoting United States v. Turquitt, [557 F.2d 464] at 468-69 [ (5th Cir. 1977) ]."

Ex parte Jackson, 33 So.3d 1279, 1285 (Ala. 2009) (quoting Robinson v. State, 528 So.2d 343, 347 (Ala. Crim. App. 1986).

Although, the evidence of Walden's previous conviction was prejudicial, it was necessary to the State's case. The certified copy of Walden's previous conviction was plain, clear, and conclusive. Therefore, the probative value of the evidence substantially outweighed any danger of unfair prejudice. See Rule 403, Ala. R. Evid. Furthermore, the alleged prejudice to Walden was alleviated by the circuit court's instruction to the jury. Accordingly, the circuit court did not err in determining that evidence of Walden's previous conviction for the unlawful distribution of a controlled substance.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

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

WELCH, Judge, dissenting.

The majority affirms Zachary Walden's convictions for first-degree unlawful possession of marijuana, a violation of § 13A-12-213, Ala. Code 1975, and for unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala. Code 1975, over Walden's argument that the trial court erred when it admitted evidence of Walden's prior conviction for the unlawful distribution of a controlled substance-marijuana-for the purpose of showing intent and knowledge as to the possession charge for which he was being tried. The evidence was inadmissible, the error in its admission was not harmless, and Walden is entitled to a reversal of his conviction.

This case presents a textbook example of the reason Rule 404(b), Ala. R. Evid., was created. Evidence of Walden's prior conviction for marijuana distribution was irrelevant to the charges of marijuana possession and possession of paraphernalia for which Walden was tried; the evidence was admitted solely to prove Walden's bad character and to show that he had acted in conformity with that bad character; and even if the evidence had any probative value-and it did not-the evidence should not have been admitted because any probative value would have been outweighed by its prejudicial effects, see Rule 403, Ala. R. Evid. Based on the evidence that was properly admitted, the State had virtually no chance of obtaining convictions because guilty verdicts would have been based on a pure speculation.

Although the trial court has substantial discretion when determining the admissibility of evidence, "[e]vidence of prior or subsequent collateral bad acts and crimes is generally inadmissible." Bailey v. State, 75 So.3d 171, 183 (Ala. Crim. App. 2011). Rule 404(b), Ala. R. Evid., provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The basis for this rule of limited admissibility is that evidence of prior crimes has almost an irremediable impact on the jurors and their deliberations. E.g., Ex parte Billups, 86 So.3d 1079, 1084 (Ala. 2010). Even if a collateral act has some relevance or probative value toward proof of an element of the charged crime, further analysis is required before that evidence is properly admitted. Rule 403, Ala. R. Evid., provides, in pertinent part, that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...."

The majority presents a brief summary of the facts because, as it correctly notes, Walden does not challenge the sufficiency of the evidence. However, the testimony of the officer Alva Carlson, who had the initial contact with Walden, is highly relevant to this issue. Officer Carlson testified on direct examination that he had responded to a report of a blue car with one occupant being driven recklessly. Officer Carlson found a car fitting the description several minutes later, and he had stopped behind the car while it was parked in Walden's mother's yard. Walden had stepped out of the passenger's side, closed the door, and walked toward the house. The driver then drove away and Officer Carlson pursued him. Officer Carlson testified that he saw the driver throw a cooler out of the passenger's window, and that a coffee can was found on the passenger's floorboard after the driver was apprehended. The cooler and the coffee can contained marijuana. Officer Carlson testified on cross-examination, in relevant part, as follows:

"Q. [DEFENSE COUNSEL:] What is Mr. Walden's connection to this marijuana?
"A. [OFFICER CARLSON:] Well, he was in the vehicle that the marijuana was found inside.
"Q. Stop. Let me ask about that. So, you told us a while ago that the officer did see one person in that vehicle, and when you come up there, Mr. Walden was sitting in the car in front of his mama's house.
"Right?
"A. Correct.
"Q. Okay. So the fact that Mr. Walden sat down in that car makes it his marijuana, some how?
"A. It is constructive possession.
"Q. Is it?
"A. Yes.
"Q. Well, in order for Mr. Walden to be in constructive possession of the marijuana in that can, wouldn't he have had to have known what is in that can?
"A. He was in the vehicle where the marijuana was located.
"Q. My question is, wouldn't he have to have known what was in the can in order to be in constructive possession of it?
"A. No, sir.
"Q. He wouldn't have?
"A. (Witness nods.)
"Q. So, if Mr. Walden didn't know what was in the can or didn't know that the marijuana was in the can, if he had the can, he is guilty of possession of marijuana? Is that what you are telling me?
"A. Yes.
"Q. Yes?
"A. Are you asking me?
"Q. I am asking you.
"A. Do we have a statute book?
"Q. I do, but that is all right."

(R. 73-75.)

On further cross-examination of the officer with regard to the coffee can, the prosecutor asked, "Where was that can at when this car was parked up in front of Mr. Walden's house?" (R. 75.) Officer Carlson answered, "That I don't know." Id.

The prosecutor also questioned Officer Carlson about the cooler:

"Q. You told us that this cooler come out on the right side of that car while it was going down the road. Right?
"A. Correct.
"Q. Now, where was this-where was this cooler at when that car was parked up in front of Mr. Walden's mother's house?
"A. That, I don't know."

(R. 75.)

Officer Carlson testified that he did not know where in the car the cooler had been before the driver threw it out of the passenger window. The cross-examination continued:

"Q. You don't know if the defendant had it in the back seat or whatever, and got it and was trying to throw it out do you?
"A. I do not.
"Q. Then, how do you know that Mr. Walden even knew about the marijuana?
"A. That, I don't know.
"Q. You don't know that he knew about it?
"A. I don't know.
"Q. Okay. Well, that is what I am asking you.
"A. Okay."

(R. 76-77.)

The foregoing testimony reveals no evidence that Walden had knowledge of the presence of coffee can or the marijuana in the coffee can. The testimony reveals no evidence that Walden had knowledge of the presence of the cooler or the marijuana in the cooler. The majority explains that, after the State presented evidence of the arrests of the driver and Walden, and of the discovery of what was determined to be marijuana:

"[T]he circuit court ruled that the State could introduce evidence of Walden's conviction for the unlawful distribution of a controlled substance for the purpose of showing 'intent and knowledge as part of that constructive possession charge.' (R. 118-19.) The circuit court sustained Walden's objection to the introduction of his conviction for possession of marijuana in the first degree."

243 So.3d at 301.

The majority's analysis on the issue is brief:

"Walden's previous conviction was for the unlawful distribution of a controlled substance, specifically marijuana. This conviction showed that Walden was familiar with the smell of marijuana and had knowledge that there was marijuana inside of the cooler and coffee can when he sat in the passenger seat of the vehicle."

243 So.3d at 302. (Emphasis added.) I strongly disagree.

Absolutely nothing about the prior conviction for the distribution of marijuana showed that Walden had knowledge that the coffee can and cooler were inside the car, and it certainly did not show that Walden had knowledge that the cooler and the coffee can contained marijuana. The prior conviction would have shown that Walden had knowledge of the smell of marijuana, but that knowledge was not relevant to the proof of the crimes with which he was charged. More importantly, that Walden was familiar with the smell of marijuana cannot be stretched to the lengths to which the majority has attempted to have it reach-and that is to somehow establish that he knew that the cooler and coffee can were in the car, and that he knew that marijuana was in the cooler and the coffee can. Most telling of all is the absence of any discussion in the opinion regarding any link between the prior conviction for distribution of marijuana and Walden's intent to possess the marijuana and paraphernalia that had been in some unknown location in the car while he was sitting in it.

Walden's convictions should be reversed for the same reasons this Court reversed a conviction for unlawful possession of a controlled substance, cocaine. Turner v. State, 929 So.2d 1041 (Ala. Crim. App. 2005). Over Turner's objection on Rule 404(b) grounds, the trial court allowed the State to present evidence of Turner's prior conviction for cocaine possession. This Court stated:

"In this case, the admission of evidence of Turner's 1997 conviction violated the general exclusionary rule of Rule 404(b). The record discloses no logical connection between Turner's prior conviction and the present charge. That is, the defendant's prior conviction for possession of cocaine would not, in the absence of some connecting facts, supply the defendant with the knowledge of the presence of cocaine in his vehicle, the subject of the instant offense. Except for the tendency, condemned by Rule 404(b), 'to show action in conformity therewith,' the record before us discloses no logical connection between the defendant's obvious knowledge of cocaine generally, as evidenced by his prior conviction, and his knowledge of the presence of cocaine in his vehicle, or his intent to possess that cocaine, which were the primary issues in the present case."

929 So.2d at 1045.

As in Turner, this Court should hold that evidence of Walden's prior conviction was inadmissible, and we should reverse Walden's convictions.

Because the evidence was irrelevant and inadmissible, considerations of whether the probative value of the evidence is outweighed by its prejudicial value is unnecessary. The trial court's instruction to the jury about its consideration of the prior conviction is also unnecessary, but I address the matter here because I disagree with the majority's discussion of the instruction. The majority states that the prejudice alleged by Walden "was alleviated by the circuit court's instruction to the jury." 243 So.3d at 303. The circuit court instructed the jury "that evidence of other crimes, wrongs, or acts is admissible to prove the defendant's intent and knowledge at the time of the alleged offense." (R. 141.) The instruction eliminated none of the prejudice. In Ex parte Casey, 889 So.2d 615 (Ala. 2004), the Alabama Supreme Court held that evidence of Casey's prior convictions for theft and the unauthorized use of a credit card should not have been admitted during his trial on a charge of receiving stolen property because the evidence should have been excluded under Rule 404(b). The Court further held that the evidence served only to suggest that, because Casey "had harbored the dishonest intent that constituted essential elements of his prior crimes, he must have harbored the dishonest intent that constituted essential elements of the crimes" for which he was then on trial. Id. at 621. The Alabama Supreme Court held that the error was not harmless because, the Court said, the evidence tended only to show that he probably committed the crime for which he was being tried because he had committed a similar crime previously. "The erroneous admission of the defendant's prior convictions into evidence substantially increased the likelihood that he would be convicted on at least some of the numerous counts then being tried, as he was." Id. at 622. The Alabama Supreme Court then discussed the jury charge on the prior bad act:

"The 'limiting' instruction given by the trial court to the jury did not ameliorate the prejudicial effect of the erroneous admission of the defendant's prior convictions. Indeed, the instruction contradicted itself and exacerbated the prejudice. While the trial judge told the jurors they could not consider the prior convictions 'as evidence that [the defendant ] committed the now-charged crimes, the trial judge, in the same breath, told the jurors they could consider the prior convictions 'as evidence of the elements of knowledge and intent' (emphasis added) of the now-charged crimes, and, thus, in legal and practical effect, that they could consider the prior convictions 'as evidence that [the defendant] committed the now-charged crimes.' In other words, considering the prior convictions as evidence of the elements of 'the now-charged crimes' is the same as considering the prior convictions as evidence of the commission of 'the now-charged crimes.' "

Id.

The trial court's charge in this case also allowed the jurors to could consider Walden's prior conviction as evidence of the elements of knowledge and intent, both of which were necessary to prove the charges for which he was on trial. As in Ex parte Casey, the erroneous admission of Walden's prior conviction cannot be considered harmless error, and his convictions should be reversed.

For all of the foregoing reasons, I dissent.