author: THOMPSON, Presiding Judge.

text:
    Patricia Gail RENEMAN v. Paul Wesley RENEMAN, Jr.
    2150882
    Court of Civil Appeals of Alabama.
    February 24, 2017

      .Stewart E. Burns of Burns Garner Law Firm, Gadsden, for appellant.
    John D. Floyd of Floyd Law Firm, LLC, Gadsden, for appelllee.
   THOMPSON, Presiding Judge.

Patricia Gail Reneman (“the wife”) appeals from a judgment denying her petition requesting, among other things, that Paul Wesley Reneman, Jr. (“the husband”), pay a pro rata share of the loan secured by a mortgage on the parties’ marital home, which had been refinanced.

The record indicates the following. The husband and the wife divorced in March 2008. At that time, they entered into a settlement agreement that provided, among other things, that the wife was to have the marital residence, with all the household furnishings, fixtures, and appliances. The agreement also provided that the husband would pay the wife $350 each week as payment toward three fixed debts owed to CitiFinancial Corporation, LLC (“CitiFinancial”), which consisted of the loan secured by the home mortgage, an automobile loan, and a personal loan, and one fixed debt to another entity. As each of the four debts was paid off, the husband’s obligation to the wife was to decrease by the amount of the monthly payment owed as to that debt. In addition, the husband was to pay the wife “$250 per week ($1,300 each month)” (sic) “as permanent and continued alimony,” that is, as periodic alimony. The trial court incorporated the parties’ agreement in the divorce judgment.

Over time, the husband paid off three of the four fixed debts, leaving only the outstanding balance on the loan secured by the mortgage on the marital residence. According to the mortgage agreement with CitiFinancial, monthly payments of $461.84 were to be paid until October 2019, when the loan was scheduled to be paid in full.

The husband made the loan payments directly to the lending entities rather than to the wife. The evidence is undisputed that in 2014 the husband stopped making the monthly home-loan payments. The husband testified that CitiFinancial made a telephone call to him and requested a payment. He said that he told CitiFinan-cial that he “didn’t have it” and to contact the-wife. The wife testified that, in April 2014 she received a telephone call from CitiFinancial advising her that. the payments were “months behind” and that Citi-Financial was going to foreclose on the marital residence if payments were not made. The wife said that she contacted the husband about making the payments and that he told her he did not have the money. The wife then made a payment of $261 to CitiFinancial on April 30, 2014. After making that payment, the wife said, she again contacted the husband about resuming the mortgage payments. She said that he told her he “had a house and he had bills” and that he could no longer make the payments.

After the husband said that he would no longer make the payments, the wife testified that she borrowed money to be able to meet the next payment that was due1 before she could refinance the loan on the house. When asked whether he had agreed for the wife to refinance the loan, the husband said: “I told her to do what-she had to do because I couldn’t make the payment nó more.” On June 4, 2014, the wife, who worked as a custodian at a high school, refinanced the loan through Alabama Teachers Credit Union (“ATCU”) so that she could afford to make the monthly house payment, and the loan through Citi-Financial was paid off. The payoff on the house at that time was $23,546.76. The wife obtained an additional $7,409 to pay personal debt. The monthly payment for the ATCU loan was $322.14; however, the wife asked the trial court to direct the husband to pay only that portion of the monthly payment, which she calculated to be 77.2%, that went toward paying off the house. She also requested that the hus.-band pay her the arrearage he owed for the payments he had missed.. .

At the end of the'husband’s questioning by the attorneys for the parties, the following colloquy was held between the trial court and the husband:

“THE COURT: Part of the [settlement] agreement was you would deed over to' hér the property, the house?
“THE [HUSBAND]: I did.
“THE COURT: You would pay for the house as part of these—it’s called— has got it labeled as alimony in parts. Is part of this settlement agreement you agreed to give her the house and pay for the house in its totality, the total price of the house still owing; is that correct?
“THE [HUSBAND]: Yes, sir.
“THE COURT: • At the time you quit doing that there was $23,546.76 that you would have owed her in property that she received through this settlement agreement that you still owed when you stopped making those payments; do you understand that? ■ •
“THE [HUSBAND]: Yes, sir, I do.
“THE COURT: Did you think' th'at $23,546.76 just went away?
“THE [HUSBAND]: No, sir.
“THE COURT: That you don’t owe it anymore?
“THE [HUSBAND]: No, sir.
“THE COURT: You think you still owe it?
“THE [HUSBAND]: Yeah, I guess I do.”

After the trial, the trial court entered an order denying the wife’s request that the husband pay a monthly “pro-rata share of the new mortgage” on the marital home. The trial court determined that the wife had “paid off the debt to CitiFinancial which the [husband] was required to pay per the agreement until individually paid off.” (Emphasis in the judgment.) The trial court did, however, order the husband to pay the wife $686.40 for the payments he had failed to make before' the wife refinanced the loan on the house. The .wife filed a motion to alter, amend, or vacate the judgment. The trial court granted the motion in part, awarding the wife $1,960.72 plus interest. It denied the motion insofar as the wife’ continued to request that the husband be required to'resume making the house payments. The wife timely appealed to this court.

The standard of review in this matter is as follows.

“““[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly, unjust.”” Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433, (Ala. 2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala. 2002)). ‘“The presumption of correctness, however, is rebuttable and may be overcome where there- is insufficient evidence presented to the trial court to sustain its judgment.” ’ Wattman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Wattman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala. 2007). Legal conclusions, however, are subject to de novo review. Walker v. Walker, 144 So.3d 359, 364 (Ala. Civ. App. 2013). In this case, the facts are undisputed and our review involves consideration of whether the trial court properly applied the law to those facts. Accordingly, our review is de novo.

On appeal, the wife argues that the trial court erred in determining that, the husband’s obligation to pay the home loan was “discharged” when she refinanced the home loan ¿nd, as a result, the loan to CitiFinancial was paid off. The parties and the trial court agree that the husband’s obligation to pay off the loan secured by the mortgage on the marital residence constituted a property settlement and was, therefore, not subject to modification. See, e.g., McEntire v. McEntire, 345 So.2d 316 (Ala. Civ. App. 1977).

In Smith v. Smith, 365 So.2d 88 (Ala. Civ. App. 1978), when the parties divorced, they entered into a settlement agreement that provided that .the husband in that case would purchase, a house for the wife in that case and. “ ‘make the monthly, house payments on the mortgage on said residence until said mortgage is fully paid.... and it is further understood and agreed that the payments made by the Husband on said mortgage shall be in addition to the alimony payments’ ” to which the husband had agreed. Id at. 90. The parties’ agreement was incorporated into the divorce judgment. Id.

Three years after the divorce judgment was entered,

“[t]he wife encountered financial difficulties and in March 1976 sold the residence referred to in [the provision cited above]. At the closing of this sale the wife paid off the outstanding balance on the mortgage, $14,192.85. The circuit court issued a [judgment] on October 12, 1976, which adopted an agreement submitted by the husband and wife, whereby the husband agreed to continue making the $114 per month payments in accordance with the original amortization- schedule of said mortgage loan. Under this new agreement, however, these payments would be made to the wife rather than to the mortgage company since the debt owed to the latter had been extinguished.”

Id.

Shortly thereafter, and after the wife had remarried, the husband stopped making the required payments to the wife. He also filed a petition in the : circuit court seeking to be relieved from having to make ■those payments, among other things. In a judgment entered on May 15, 1978, the circuit court required the husband to continue making the payments to the wife, finding that those payments were part of a property settlement that had been incorporated into the original divorce judgment, which was not modifiable by the circuit court. The husband appealed, arguing

“that since the language of the separation agreement required only that he make the payments ‘until said mortgage is fully satisfied,’ a continuation of these payments after the mortgage has'been satisfied (by the wife in 1976 [when she sold the house]) constitutes the kind of support and maintenance properly classified as ‘alimony”; and upon the wife’s remarriage his obligation to pay alimony should cease. While agreeing it is the law in Alabama that provisions in a divorce [judgment] for a property settlement, unlike those for alimony, are not . modifiable, the husband insists that these payments must be viewed as ‘alimony1 because the court’s [judgment] of October 12, 1976, ‘modified’ the provisions for the payments by requiring that they be made to the wife rather than to the mortgage company.”

Id. at 91 (final emphasis added).

This court affirmed the circuit court’s judgment, writing:

“We think these arguments are without merit and that the trial court correctly found that the -payments are a part of the property settlement. The husband by his argument seeks to take improper advantage of the fact that he was originally permitted to satisfy his obligations under the property settlement with monthly installments rather than being required to make an immediate cash settlement.
“A court of equity in a divorce case has power to use any reasonable means to effect a just property settlement and adjust the equities between the parties. Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 865, cert. den. 287 Ala. 740, 249 So.2d 860 and 287 Ala. 740, 249 So.2d 861 (1971), and cases cited therein. The agreement incorporated into the divorce [judgment] in the ease at bar specifically provided that the mortgage payments were to be in addition to alimony payments. The wife was to receive sole and exclusive title to the ... residence, and in exchange she was to relinquish her interest in other jointly held property. The [judgment] of October 12, 1976 changed neither the amount due nor the liability of the husband for the $114 per month payments. Under these circumstances we do not' think that a mere change of payee from the mortgage company to the wife transformed these payments into ‘alimony,’ nor do we think that the satisfaction of the mortgage debt by the wife extinguished the husband’s obligation to continue the payments required by the [judgment].”

Id. at 91-92 (final emphasis added).

The rationale used by the Smith court applies in this case. In entering into the settlement agreement that was incorporated into the divorce judgment, the husband agreed that he would pay the outstanding balance on the loan secured by the mortgage on the marital residence. He failed to fulfill his obligation as required by the divorce judgment, which incorporated the parties’ agreement. When the wife asked the husband to resume the payments, he told her that he could not do so "and that she should “do what she had to do.” According to the wife, because she could not afford the monthly house payments, rather than allow CitiFinaneial to foreclose on the house, she refinanced the loan to obtain lower, more manageable, monthly house payments. In doing so, she paid off the loan secured by the mortgage held by CitiFinaneial; however, she was still left with a monthly house payment. We agree with this court’s rationale "in Smith, supra, that whether the mortgage payment was made to CitiFinaneial, to ATCU, or to the wife is irrelevant. The wife still has a mortgage payment that, under the terms of the parties’ settlement agreement and the divorce judgment, the husband is obligated to make until the house is paid for in fall. By excusing the husband from that obligation, and thereby allowing him to avoid payment of $23,546.76, the trial court improperly modified the property settlement agreed upon by the parties.

In denying the wife’s request that the husband continue paying her for the balance of the loan secured by the mortgage on the house, regardless of who holds that mortgage, the trial court is essentially rewarding the husband for his refusal to abide by the terms of the parties’ property settlement. It is apparent from the record that the husband recognized that he had not paid for the marital residence in full and that he had a continuing obligation to pay the balance owed on the house. The record shows that he agreed with the trial court that the loan balance did not just “go away” when the wife refinanced the loan on the house. If we were to affirm the trial court’s judgment, we would be establishing an inequitable precedent.

We note that, at the trial, the wife did not ask the trial court to order the husband to include in his monthly payments the amount she borrowed in addition to the amount necessary to refinance the home loan. Instead, she asked only that the husband pay his pro rata share of her current mortgage payment.

For the reasons set forth above, we conclude that the trial court erred in denying the wife’s request that the husband pay his pro rata share of the mortgage payment. The judgment is therefore reversed, and the cause is remanded to the trial court for it to determine the amount the husband must pay to the wife each month to fulfill his obligation under the parties’ settlement agreement that was incorporated into the original divorce judgment and to enter a judgment accordingly.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE Bobbie B. BODDIE (In re: Shelia C. Boddie v. Bobbie B. Boddie)
    2160228
    Court of Civil Appeals of Alabama.
    Feb. 24, 2017

      S. Phillip Bahakel of S, Phillip Bahakel & Associates, Pelham, for petitioner.
    Submitted on mandamus petition only.
   DONALDSON, Judge.

Bobbie B. Boddie (“the father”) seeks our review of an order entered by the Shelby Circuit Court (“the trial court”), finding that no common-law marriage existed between him and Shelia C. Boddie (“the mother”) in the period after their divorce. Although the’ order was certified by the trial court as final pursuant to Rule 54(b), Ala. R. Civ. P., the father did not appeal. Instead, the father sought permissive review of the order under Rule 5, Ala. R. App, P., or, alternatively, a writ of mandamus directing the trial court to vacate that order. For the reasons below, we deny the requested relief.

Facts and Procedural History

' The materials submitted by the parties indicate the following. The parties have three children, all born on June 26, 2001. On January 4, .2007, the trial court entered a judgment divorcing the father and the mother. The divorce judgment incorporates an agreement between the parties, According to the parties’ agreement, the parties were to share custody of the children, “meaning] shared parental responsibility” for “major decisions, affecting the health and welfare of the children,” and the mother had “primary physical custody” of the children. The father was ordered to pay $2,500 a month in child, support in accordance with the parties’ agreement.

On November 26,2014, the father filed a petition to modify the divorce judgment, seeking a reduction in his monthly child-support obligation. The parties filed in the trial court an- agreement to reduce the father’s child-support obligation to $1,176 a month, and the trial court entered a modification judgment based on that agreement.

On July 24, 2015, the father married another woman.

On November 23, 2015, the mother filed a petition seeking a finding of contempt against the father and seeking to modify the divorce judgment. The mother alleged that the father owed her an arrearage in the sum of $169,591 for deficient child-support payments spanning from January 2007 through August 2015. She also alleged that the father had failed to pay for one-half of the medical expenses for their children as ordered in the divorce judgment. The mother also sought to modify the father’s visitation rights and her obligation to maintain life insurance for the children under the divorce judgment.

On March 29, 2016, the father filed a “Request for Declaratory Judgment and Injunctive' Relief.” According to the father’s allegations, from the time of the divorce until they separated in 2012, he and the mother had a common-law marriage, which, he said, had never been legally dissolved. The father alleged that he did not realize that he was still married at common law to the mother when he purportedly married another woman in 2015. The father sought a judgment declaring the existence of the parties’ common-law marriage and declaring that the mother is not entitled to the relief requested in her petition. ■ .He also- sought to enjoin the mother from pursuing, her petition. .

Oh October 18, 2016, the trial court entered an order, stating: ■ ■ ' ■

“This cause came before the court May 3, 2016, for hearing on [the father’s] Request for Declaratory Judgment and Injunctive Relief. The Court received testimony'in this cause,'1 both parties being present in open court and represented by their respective counsel of record. The Court has considered the pleadings and the proof, including ore tenus testimony by the parties, evidence presented and witnesses testimony, together with the demeanor of the parties, and upon close scrutiny thereof finds that [the father] has failed to meet his burden of proving the existence of a common law marriage, between the parties by clear and convincing evidence, which has been defined as:
“ ‘ “[e]vidence that, when weighed against evidence in opposition, will produce in 'the mind of the trier of fact a firm conviétion as'to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.” ’ § 6—11—20(b)(4), Ala. Code 1975. ■ 1
“The evidence presented does not rise to the level required for finding that a common-law marriage existed. The law as it relates to judicial recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual .agreement'to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Gray v. Bush, 835 So.2d 192, 194 (Ala. Civ. App. 2001). In this cause, the only element established by clear and convincing evidence is that of capacity; the evidence is not clear and convincing that the parties had a present, mutual agreement to enter into the marriage relationship to the exclusion of all other relationships, nor that there had been public recognition of their, relationship as a marriage and public assumption of marital duties.
“Wherefore, the Court hereby finds that there is no marriage in this case. Accordingly, [the father’s] relief requested is hereby DENIED.'All remaining issues in the instant case will be set for trial via separate order.” ■ :

(Capitalization in original.)

Upon the father’s motion and over the mother’s objection, the trial court entered an order on November 11, 2016, certifying the October 18, 2016, order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. On November 11, 2016, the father filed a motion to amend the language in that order, and, on November 15, 2016, the trial court entered an order, stating, in relevant part:

. “This cause is before the court on [the father’s] MOTION FOR CERTIFICATION OF FINAL JUDGMENT PURSUANT TO RULE 54(B) filed by [the father] and the objection thereto filed by [the mother]. Based on due consideration thereof, the motion is hereby GRANTED. The court expressly determines that there is no just reason for delay, and hereby expressly directs entry of judgment against [the father] in connection with its October 18, 2016, order. The court hereby certifies such order on [the father’s] REQUEST FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF as a Final Judgment pursuant to Rule 54(b), Ala. R. Civ. Pro.”

(Capitalization in original.)

On November 29, 2016, the father filed in the supreme court a petition for permission to appeal pursuant to Rule 5, Ala. R. Civ. P., and, in the alternative, a petition for a writ of mandamus. On January TO, 2017, the supreme court transferred the petition to this court pursuant to § 12-3-10, Ala. Code 1975.

Discussion

The father requested permission to appeal the October 18, 2016, order pursuant to Rule 5, Ala. R. App. P. Rule 5(a) provides:

“A party may request permission to appeal from an interlocutory order in civil actions under limited circumstances. Appeals of interlocutory orders are limited to those civil cases that are within the original appellate jurisdiction of the Supreme Court. A petition to appeal from an interlocutory order must contain a certification by the trial judge that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation. The trial judge must include in the certification a statement of the controlling question of law.”

Accordingly, in order for the father to properly pursue a permissive appeal in this case, the appeal would have to arise from a civil case within the . supreme court’s original appellate jurisdiction. “[T]he rule [does not] apply to cases ap-pealable to the Court of Civil Appeals.” Committee Comments, Rule 5, Ala. R. App. P. “The Court of Civil Appeals shall have exclusive appellate jurisdiction of ... all appeals in domestic relations cases, including annulment, divorce, adoption, and child custody cases .... ” § 12-3-10. As a result, this court has exclusive appellate jurisdiction of this matter, which arises from a domestic-relations case, and the limited circumstances required by Rule 5 are not present. See Ex parte McMichael, 62 So.3d 465, 473 (Ala. 2010)(holding that this court had exclusive appellate jurisdiction of issue arising from an order entered in a domestic-relations case). Furthermore, a permissive appeal must include a certification from .the trial court “that, in the judge’s opinion, the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that, an immediate appeal from the order would materially advance the ultimate termination of the’ litigation, and that the appeal would avoid protracted and expensive litigation.” Rule 5(a). The order from which the father requests permission to appeal contains no such certification. For these reasons, Rule 5 is not applicable to this case.

We ■ therefore' consider the father’s alternative petition for a writ of mandamus.

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; anil (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991). This Court will not issue the writ of mandamus where the petitioner has ‘ “full and adequate relief’ ’ by appeal. State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003). “The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case—that is, one in which an appeal is not an adequate remedy.” Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1137 (Ala. 2003) (citing Ex parte Consolidated Publ’g Co., 601 So.2d 423, 426 (Ala. 1992)).

“A judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment.” Lewis v. State, 463 So.2d 154, 155 (Ala. 1985). The father has not demonstrated that an appeal from the October 18, 2016, order certified as final pursuant to Rule 54(b) was not an adequate remedy. Accordingly, we deny his petition insofar as he requests, a writ of mandamus.

For the foregoing reasons, we deny" the father’s petition seeking permission to appeal pursuant to Rule 5 and, in the alternative, for a, writ of mandamus.

PETITION DENIED.

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

      . We note that, in the order transferring this case, the supreme court determined that this court had original jurisdiction. Section 12-3- . 11, Ala. Code 1975, provides: “Each of the courts of appeals shall have and exercise original jurisdiction in the issuance and determi- ■ nation of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction.” See Ala. Const, of 1901 (Off. Recomp.), Art. VI, § 141(c) ("The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.”). Pursuant to § 12-3-10, this court has exclusive jurisdiction of domestic-relations cases; therefore, it appears that the supreme court transferred the case to this court based on our jurisdiction to issue writs of mandamus in domestic-relations cases.

      . We note that an appellate court may treat a petition for the writ of mandamus as an appeal in certain circumstances. See Ex parte Burch, 730 So.2d 143, 146 (Ala. 1999) (noting that there is no “bright-line test” for such action). ‘‘[The appellate court] consider^] the facts of the particular case in deciding Whether to treat the filing as a petition or as an appeal.” F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366, 372 (Ala. 2006). Under the facts and circumstances presented here, we decline to convert the petition for a writ of mandamus into an appeal.


author: KELLUM, Judge.

text:
    Marvin Dallas LYNCH v. STATE of Alabama
    CR-14-1582.
    Court of Criminal Appeals of Alabama.
    June 3, 2016.

      Marvin Dallas Lynch, pro se.
    ' Luther Strange,' atty. gen., and Kristi 0. Wilkerson, asst. atty. gen., for appellee.
   KELLUM, Judge.

Marvin Dallas Lynch appeals the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32,, Ala. R.Crim. P„ in which he. attacked his 2008. convictions for one count .of first-degree robbery, one count of, second-degree theft of property, and one count of reckless endangerment, and his resulting sentences, as a.habitual offender, of 60 years’ imprisonment for the robbery conviction,. lG.years’ imprisonment for the theft conviction, and 1 year’s imprisonment for the reckless.-endangerment conviction. This. Court affirmed Lynch’s convictions and sentences in an unpublished memorandum issued on July 24, 2009. Lynch v. State (No. CR-08-0375), 57 So.3d 205 (Ala. Crim.App.2009) (table). The Alabama Supreme Court denied certiorari, review, and this Court issued a certificate of judgment on May 7, 2010.

• On June 29, 2015, Lynch filed this, his second; Rule 32 petition. Lynch- alleged in his -petition: (1) that the State sup-’ pressed exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that the trial court lacked jurisdiction to render the judgments and to impose the sentences for first-degree robbery and second-degree theft because, he said, those convictions violate double-jeopardy principles; and (3) that the trial court lacked jurisdiction to render the judgments or to impose the sentences for first-degree robbery, second-degree theft, and reckless endangerment because, he said, there was no probable cause to support the arrest warrant.

On or about July 16, 2015, the State filed a response to Lynch’s petition, arguing that Lynch’s claims were precluded by Rules 32.2(a)(3) and (a)(5), that they were insufficiently pleaded, and that they were meritless.;' On July 21, 2015,' the circuit court issued an order summarily dismissing Lynch’s petition. On July 29, 2015, Lynch filed a reply to the State’s response. On or about August 5, 2015, the State filed an amended response, admitting to clerical mistakes in its initial response, mistakes Lynch had pointed out in his reply. On ■ August 17, 2015, the circuit court issued an order setting aside its July 21, 2015, order on the ground that additional pleadings had been filed and, after considering the additional pleadings, the court again summarily dismissed Lynch’s petition, finding “that the Petition is not sufficiently specific, fails to state a claim or that no material issue of fact or law exists which would entitle [Lynch] to relief under this Rule 32 and that no purpose would be served by any further proceeding.” (C. 99.)

On appeal, Lynch reasserts the three claims he raised in his petition. The facts of the crimes are necessary for a better understanding of Lynch’s claims. In our unpublished memorandum affirming Lynch’s convictions and sentences, this Court set out the following facts:

“On the morning of April 23, 2008, 72-year-old D.H. Edmondson drove his truck to his barn and noticed that a truck was parked partially in the driveway near the barn. Edmondson got out of his truck and saw Lynch, whom he had never seen before, and asked Lynch ‘[A]re you broke, down, lost?’ One of Edmondson’s new transmissions was in the back of Lynch’s truck. Lynch grabbed Edmondson in a ‘bear hug' and the two men ‘scuffled’ down the driveway. Lynch pushed Edmondson down and struck Edmondson on his back with an object. Lynch removed Edmondson’s .22 rifle from the cab of Edmondson’s truck and began shooting. Edmondson crawled around to the passenger side of his truck as gunshots striking the road caused gravel to strike him.
“Lynch got into his truck, and Edmondson got into his truck. Edmondson rammed his truck into Lynch’s truck as Lynch drove down the driveway. After leaving Edmondson’s property, but before being apprehended by police, Lynch engaged in a high speed automobile chase with police, followed by a chase on foot.”

Additionally, we point out that after being apprehended, Lynch gave police a statement denying any involvement in the crimes. However, a few days later, Lynch gave the following statement to police:

“On the day this happened, I went riding around looking for scrap metal. I had left Roanoke and had driven to Lafayette. The fence posts [found in Lynch’s truck] I got in Roanoke, and the 5th wheel and rims [found in Lynch’s truck] I got across the street from the fire department, in -Lafayette. I then went back to the car wash to close my tailgate and check my tire. I then drove to the Big Cat and got 15 dollars worth of gas. I was driving towards Wadley on Highway] 77 when I saw a barn up a dirt drive. I turned around and pulled up into the drive, got .out and rolled up [to] a couple of blue-pumps. A man in a red truck pulled up behind my.truck. The man was sitting in his truck and I asked him who owned this property and he said, T do.’ Then I asked the man if he wanted to get^ rid of some of the scrap he had up there and he said ‘Hell no’ and ‘that looks like my transmission on the back of your truck.’ I had gotten the transmission loaded before the man got there. I told the man that he was crazy as hell, and I’m getting outta [sic]' here. I got into my truck, and I saw the man standing at the back of my truck holding a rifle. He fired one shot over my truck. I got out of my truck and told the old man I didn’t have his stuff. I had my hands up and he turned away from me and said come with me. I then saw he wasn’t looking, and I grabbed the gun and pushed it into the ground. I had my finger on the trigger and' 5 rounds got fired into the ground while [I tried] to get the gun away from the old man. When I finally got the gun away, I put it in the cab of my truck and the man was laying on the ground. I then motioned for the man to get in his truck and back up and get out of the way. The man got in his truck, and he rammed my truck, causing my door to slam. I open[ed] the door and got in my truck, as I was trying to leave, the man sideswiped me with his truck. I spun out, and I think his truck went on down into the field. I then got on Highway]' 77 and head[ed] back towards Lafayette, and I turned off on the first road to the right. I then traveled on that road which was the first dirt road to the left. I went, a little ways and then threw the transmission off - my truck ‘into the woods. I drove a little further,, then threw the gun into a creek. I then went to some guy named ‘Dawg’ and got him to fix my flat tire. After that I left from there and ended back up on Hfighway] 77 headed towards Wadley. I then got saw [sic] by one of the deputies and I got scared and ran. I eventually pulled over, got out of the truck and ran into the woods where I was later caught by Deputies. When I was in the back of the police1 car, when they opened the door for him to identify me, he, the old man, tried to pull a gun on me. This was nothing inore than a simple case of 'theft and trespass that went bad when this guy tried to'take the law into his own hands.”

(Record on Direct Appeal, C. 48-50.)

Edmondson’s rifle was later recovered from a. creek; the transmission was not recovered.

I.

Lynch first reasserts on appeal the claim from his petition that the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Lynch alleged in his petition that the State had suppressed statements the victim, D.H. Edmondson, had made to police the day of the crimes. Lynch asserted that Edmondson’s statements to police conflicted with- his testimony at trial and established that Edmondson had perjured himself at trial. Specifically, Lynch asserted that Edmondson ha'd testified at trial that after he and Lynch had struggled, Lynch had reached into Edmondson’s truck, taken Edmondson’s rifle, and fired the' rifle in Edmondson’s direction. Edmondson denied at trial that’ he had gotten out of his-truck holding his rifle, that he had pointed the rifle at Lynch, or that he had fired the rifle in Lynch’s direction—as Lynch asserted in his second statement to police. Lynch also stated that Edmondson had testified at trial that he had suffered injuries from his encounter with Lynch,1 including a swollen, hand and a bruised back. Lynch .alleged, however, that Edmondson had given statements to police in which he stated that he “did not..sustain any injuries, and that he did got out [sic] the truck with his .22 caliber rifle, and a struggle over the gun did happen.” (C. .42.) In other words, Lynch alleged that Edmondson’s statements to ..police mirrored his own statement to police placing the blame for the incident on Edmondson.

“To [establish] a Brady violation, a defendant must show that ‘“(1) the prosecution suppressed evidence; (2) the evidence was- favorable to the defendant; and (3) the evidence was material to the issues at trial.” ’ Johnson v. State, 612 So.2d 1288, 1293 (Ala.Cr.App.1992), quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990), cert. denied, Stano v. Singletary, 516 U.S. 1122, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996). See Smith v. State, 675 So.2d 100 (Ala.Cr.App. 1995). ‘ “The evidence is material only if there is a reasonable probability that, had the eyidence been-disclosed to the defense, the result of. the proceeding-would have been different. A ‘reasonable probability1 is a probability suffi--dent to undermine confidence in the outcome.”’ Johnson, 612 So.2d at 1293, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 8375, 3383, 87 L.Ed.2d 481 (1985).”

Freeman v. State, 722 So.2d 806, 810 (Ala. Crim.App,1998). “The term suppression ‘means non-disclosure of evidence that the prosecutor, and not the defense attorney, knew to be in - existence.” Donahoo v. State, 552 So.2d 887, 895 (Ala.Crim.App.1989) (quoting Ogden v. Wolff, 522 F.2d 816, 820 (8th Cir.1975)). “ ‘[T]he rule of Brady applies only in situations which involve “discovery after trial of information which had been known to the prosecution but unknown to the defense.” ’ ” Bates v. State, 549 So.2d 601, 609 (Ala.Crim.App.1989) (quoting Gardner v. State, 530 So.2d 250, 256 (Ala.Crim.App.1987), quoting in turn United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (some emphasis added).

Although Lynch alleged in his petition that neither he nor his attorney was aware of any statements Edmondson had made to police, the transcript of Lynch’s trial contains references during the testimony of Tony Ward, an investigator with the. Chambers County Sheriffs Department, indicating that. Edmondson had made statements to law-enforcement officers the day of the crimes. Because the existence of Edmondson’s statements to police, albeit not the content of those statements, was disclosed during trial, this claim ⅛, as asserted by the State in its response to Lynch’s petition, precluded by Rules 32.2(a)(3) and (a)(5). because it could have been, but was not, raised, and addressed at trial and on appeal.

II,

Lynch also reasserts on appeal the claim from his petition that the trial court lacked jurisdiction to render the judgments or to impose the sentences for first-degree robbery, second-degree theft, and reckless endangerment because, he said, there was no probable cause to support the arrest warrant.

Although couched in jurisdictional terms, this claim is not jurisdictional.. See, e.g., Bearden v. State, 825 So,2d 868, 870 (Ala.Crim.App.2001); Scroggins v, State, 827 So.2d 878, 882 (Ala.Crim.App.2001); Duren v. State, 813 So.2d 928, 930 (Ala.Crim.App.2000); and Sumlin v. State, 710 So.2d 941, 942 (Ala.Crim.App.1998) (all holding that challenges to an arrest warrant or to the affidavit submitted in support of the arrest warrant are not jurisdictional claims). Therefore, this claim is also precluded, as asserted by the State in its response to Lynch’s petition, by Rules 32.2(a)(3) and (a)(5) because it could have been, but was not, raised and addressed at trial and on appeal,

III.

Finally, Lynch reasserts on appeal the claim from his petition that the trial court lacked jurisdiction to render the judgments.or to impose the sentences for first-degree robbery , and second-degree theft because, he said, those convictions violate double-jeopardy principles. Specifically, Lynch alleged in his petition that those two convictions violated double-jeopardy principles because, he said, “the State cannot convert a single theft of various items of property stolen fróm one victim in the same robbery, theft into separate counts of the indictment.” (C. 47.) Lynch maintained that the State improperly divided a single act of theft of a rifle, a transmission, and scrap metal into two separate charges—second-degree theft and first-degree robbery—in violation of double-jeopardy principles. This .claim is jurisdictional; therefore, it is not precluded by any of the provisions in Rule 32.2. See Ex parte Benefield, 932 So.2d 92 (Ala. 2005); Ex parte Robey, 920 So.2d 1069 (Ala.2004); and Young v. State, 892 So.2d 988 (Ala.Crim.App.2004).

It is well settled that “[a] single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense.” Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). With respect to theft of property, this Court has held that “[t]he State cannot convert a single theft of various items of property stolen from the same victim in the same [transaction]' into separate offenses by alleging the theft of different items in separate counts of the indictment.” Pardue v. State, 571 So.2d 320, 330 (Ala.Crim.App.1989), rev’d on other grounds, 571 So.2d 333 (Ala.1990).

In Connolly v. State, 539 So.2d 436 (Ala. Crim.App.1988), this Court held that a conviction for theft of an automobile barred a later charge for capital murder during a robbery involving property other than the automobile because the' theft of the' automobile and the theft of the Other property occurred as a single transaction and, therefore, constituted a single offense of theft. We explained:

“[F]ór purposes of former jeopardy, theft is a lesser included offense of the crime of robbery. Robbery is regarded as an‘ággravated’form-of theft. Ramsey v. State, 441 So.2d 1065, 1067 (Ala.Cr.App.1983). By statutory definition, robbery can be committed only ‘in the course of committing a theft.’ §§ 13 A-8-41 through 43. ‘By its very definition, the crime of robbery ... necessarily includes the crime of theft....’ Ramsey, 441 So.2d at 1067. See Ex parte Hannah, 527 So.2d 675 (Ala.1988). Consequently, for purposes of former jeopardy, theft is a lesser included offense of the capital offense of murder during the course of a robbery. See Ex parte Beverly, 497 So.2d 519, 525 (Ala.1986) (robbery-intentional killing .embraced the lesser included offense of grand larceny).
“We conclude that the ,theft of Ms. Sands’s car, watch, currency, television, adding machine, and bank card was. one offense and not separate offenses of theft. Consequently*' the defendant’s conviction for the theft of Ms. Sands’s car barred his prosecution for the robbery involving the property other than the car.
“The State could not convert a single theft of various items of property into separate offenses by alleging the theft of different items in separate indictments. All- the property was taken during the same transaction and constituted one offense. Such is not permitted. . .
“ ‘It has been held that a conviction of petit larceny is a bar to a prosecution for grand larceny on the theory that there are no different degrees in the crime of larceny, the intent being the same regardless of the value of the property stolen. Similarly, where the theft of several articles at one and the same time and plape constitutes only one indivisible crime, even though the articles belong to different owners, a conviction or acquittal of the theft of one of the articles .is a bar to. a prosecution for the theft of the others. Moreover, where the stealing of several articles at the same time constitutes only one offense, even though it may be susceptible of division into parts, it is held that a prosecution to final judgment for stealing some of the articles will bar a subsequent prosecution for stealing any of the articles taken at the same time. The rule is to the contrary, however, where articles have been stolen at divers[e] times and places and from different owners, even though pursuant to a conspiracy or plan embracing all the thefts.’ 50 Am.Jur.2d Larceny § 139 at 315-16 (1970) (footnotes omitted).
“ ‘A single crime cannot be split up, or divided, into two or more offenses.’ Baldwin v. State, 47 Ala.App. 136, 140, 251 So.2d 633 (1971) (conviction for assault and battery bars prosecution for robbery). Thomas v. State, 41 Ala.App. 525, 526, 138 So.2d 269 (1962) (verdict of guilty of grand larceny constitutes acquittal of robbery charge). ‘The Alabama cases have long recognized that constitutional double jeopardy provisions, U.S. Const. Amend. V and Ala. Const., Art. I, § 9, prohibit the splitting of a single criminal act so as to'justify multiple prosecutions for the identical criminal behavior.’ Smith v. State, 472 So.2d 677, 684 (Ala.Cr.App.1984). The rule against splitting one crime into separate offenses was stated in Hurst v. State, 86 Ala. 604, 6 So. 120 (1889), as follows:
“‘It has often been decided that a single' crime cannot be split up or subdivided into two or more indictable offenses.... “[A] series of criminal charges cannot, under our system of jurisprudence, be based on the same offense or criminal act, at least, as concerns the dignity of the same sovereignty. If the state elects, through its authorized officers, to prosecute a crime in one of its phases or aspects, it cannot afterwards prosecute the same criminal act under color of another name.”
“ ‘It is accordingly held by the great preponderance of authority that the stealing of several articles at the same time and place, although they belong to different owners, constitutes but a single indictable crime, and can be prosecuted as such but once. “An indictment,” says Mr. Freeman, “could not be found for the larceny of one of the articles, and after the verdict another indictment sustained for the stealing of the remaining articles. Indeed, to put such a power in the hands of the prosecuting attorney would be to render the salutary doctrine of prior jeopardy in many instances practically nugatory.”’ [86 Ala. at 607,] 6 So. at 121 (citations omitted.)
“The Hurst rule was rejected in McKinney v. State, 511 So.2d 220 (Ala. 1987), insofar as it would disallow multiple prosecutions when there are multiple victims. In McKinney, the Alabama Supreme Court abandoned its minority position and joined ‘the majority of states that allow for multiple convictions when more than one person is injured as the result of a single act.’ 511 So.2d at 225. The court held that, when a single shotgun blast injures more than one person, multiple prosecutions and convictions should be allowed.
“The court’s holding in McKinney was limited to a single act resulting in injury to more than one , person. We find that the Hurst rule, as it applies to .separate items of property taken from one victim in one act of theft, is still intact. See Ex parte Darby, 516 So.2d 786, 787 (Ala. 1987) (‘Thus, possession of a number of different controlled substances will support only one sentence ,and fine under § 20-2-70.’).
“This court, dealing with a similar fact situation in Floyd v. State, 486 So.2d 1309 (Ala.Cr.App.1984), affirmed, Ex parte Floyd, 486 So.2d 1321 (Ala.1986), adhered to the rule against splitting one act of larceny into separate offenses corresponding to the separate items of stolen property. In Floyd, the accused was indicted for a capital offense involving the murder of a taxi driver during a robbery. The State alleged, in separate counts, the felonious taking of the taxicab and the felonious taking of currency. On the premise that the counts charged separate offenses, the accused argued that the State should have been required to elect which count would be submitted to the jury. This court rejected that argument and held that the purpose of the separate counts ‘was not to charge two or more separate offenses, but to vary the description-of one and the same offense based upon one and the same transaction.’ Floyd v. State, 486 So.2d at 1313 (emphasis added). For present purposes, Floyd is indistinguishable. Here the State split a single theft of the murder victim’s vehicle and other property into two offenses by convicting the defendant of theft of the automdbile, and then by prosecuting him for murder during the felonious taking of her other property.
“ ‘It is the fixed policy of the law in this jurisdiction that a single crime cannot be split up or subdivided into two or more indictable offenses and, if the state, through its'duly constituted officers, in a court 'of competent jurisdiction, elects to prosecute a crime in one of its phases or aspects it cannot afterwards prosecute the same criminal act under ' color of another name.... In Buchanan v. State, 10 Ala.App. 103, 105, 65 South. 205 [ (1913) ], it was held: “The state cannot elect to prosecute and try a person for a lower grade and then put him on trial for a higher grade' of the same offense.”’ Savage v. State, 18 Ala.App. 299, 300, 92 So. 19 (1921).
“We conclude that the theft of the various items of Ms. Sands’s property constituted one offense, that this theft constituted a lesser included offense of robbery, which was a lesser included offense of the charged capital offense of robbery-murder.
“Therefore, we hold that the prosecution of the defendant for the capital offense of murder-robbery after his conviction for theft violated established principles of former jeopardy.”

539 So.2d at 441-43.

Subsequently, in Branum v. State, 623 So.2d 348 (Ala.Crim.App.1992), this Court similarly held that the theft of household items and the theft of an automobile that occurred during the course of a single transaction could not be divided into one count of first-degree robbery during the course of the theft of the househpld items, and one count of first-degree theft for the theft of the automobile. In Branum, three armed men entered the home of James and Lillian Tate and forcibly took several hpusehold items. The . men loaded the items into the ¡Tates’ Cadillac automobile and then fled the scene. James Larry Branum and Tobi Carol Lambeth, who drove the three men to the Tates’ home, were subsequently charged with, and convicted of, one count of first-degree burglary, one count of first-degree robbery, and one count of first-degree theft. On appeal, this Court held that the convictions for both robbery and theft violated double-jeopardy principles. We explained:

“Our review of. the record .leads us to conclude that all of the Tates? property, including the .Cadillac, was taken during the same transaction and that the taking of that property constituted one offense. The State’s evidence indicates that Lam-beth told the. three principals to the crime, where ■ Mrs. Tate kept her car keys. The record also indicates that the car [keys were] taken at the beginning of the robbery and that all of the stolen property was then loaded into the car; The record indicates that the car was taken in the course of the robbery. Because the taking of the car was part and parcel of the robbery, the appellants could not be convicted of both robbery and theft.. See generally Pardue v. State, 571 So.2d 320 (Ala.Crim.App.1989); Connolly v. State, 539 So.2d 436 (Ala.Crim.App.1988).”

623 So.2d at 351-52.

Similarly, in this case, the record from Lynch’s direct appeal reflects that the rifle, the transmission, and the scrap metal were all taken as part of a single transaction and that the taking of that property constituted one offense.' The record indicates that Lynch used force against Edmondson in the course of taking the transmission, the scrap metal, and the rifle. ■ The taking of the rifle, then, was part and parcel of the robbery and, in fact, it was the taking of the rifle that elevated the crime to first-degree robbery. See, e.g., Bush v. State, 580 So.2d 106, 107-08 (Ala.Crim.App.1991) (noting that the forcible taking of a gun from the person of another, by itself, satisfies the requirement of first-degreé robbery that the person be armed with a deadly weapon or dangerous instrument). Therefore, under the circumstances in this case, Lynch’s convictions for both first-degree robbery and second-degree theft for a single offense violated double-jfeopardy principles,’ and the circuit court erred in denying Lynch’s Rule 32 petition' as to this claim. “The proper remedy when a defendant is convictéd of both :a greater and a lesser-included offense is to vacate the conviction and sentence for the lesser-included ' offense.” Williams v. State, 104 So.3d 254, 265 (Ala.Crim.App.2012). Accordingly, Lynch’s conviction and sentence for second-degree theft of property must be vacated.

Based on the foregoing, we remand this case for the circuit court to grant Lynch’s petition as it relates to his conviction and sentence for second-degree theft of property. and to vacate that conviction and resulting sentence. Due return shall be filed within 42 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . Lynch filed his first petition in 2010; the circuit court summarily dismissed the petition. This Court affirmed that dismissal on appeal, by -unpublished memorandum, Lynch v. State (No. CR-10-0077), 107 So.3d 232 (Ala.Crim.App.2011) (table).

      . This Court may take judicial notice of its own records, and we do so in this case. See Nettles v. State, 731 So.2d 626, 629 (Ala. Crim.App.1998), and Hull v. State, 607 So.2d 369, 371 n. 1 (Ala.Crim.App.1992).

      . “[I]t is unnecessary to remand this cáse to allow [Lynch] an opportunity to prove [his] double-jeopardy claim because the facts warranting relief on that claim are not in dispute .... [0]ur holding is not based on [Lynch's] mere allegations in [his] petition, but on the undisputed evidence present at [Lynch's] trial, of which .this Court has taken judicial notice.... Therefore, as both this Court and the Alabama Supreme Court have done numerous times in the past when the record is clear on its facts that a Rule 32 petitioner is entitled to relief, we grant that relief, rather’ than waste scarce judicial resources to remand for [Lynch] to present evidence that has already been presented to a jury -and that is already before this Court by way of judicial notice.”
      Williams, 104 So.3d at 265-66 n. 5.

       Note from the reporter of decisions: On September 2, 2016, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 9, ’2016, that court denied rehearing, without opinion. On February 10, 2017, the Alabama Supreme Court denied certiorari review, without opinion (1160224).


author: WELCH, Judge. JOINER, Judge,

text:
    William Claude TAYLOR v. STATE of Alabama
    CR-15-0354
    Court of Criminal Appeals of Alabama.
    September 9, 2016
    Rehearing Denied December 9, 2016
    Certiorari Denied February 10, 2017
    Alabama Supreme Court 1160230
    Ronald Smith, Huntsville, for appellant.

      Luther Strange,' atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WELCH, Judge.

William Claude Taylor appeals from the circuit court’s imposition of a sanction of 21 days in jail following its finding that Taylor had violated the terms and conditions of his probation. On June 19, 2014, Taylor pleaded guilty to one count of unlawful distribution of a controlled substance, two counts of unlawful possession of a controlled substance, and one count of unlawful possession of a controlled substance with intent to distribute. Taylor was sentenced under the presumptive sentencing guidelines to 150 months in prison. In accordance with the guidelines “non-prison” recommendation, that sentence was suspended, and Taylor was placed on five years’ probation. As a condition of his probation, Taylor was- ordered to complete a drug-treatment program.

While on probation, Taylor was alleged to .have violated his probation when he tested positive for amphetamine and methamphetamine. At a subsequent probation- . revocation hearing, at which Taylor was represented by counsel, Taylor denied the allegation, and the circuit court received testimony from Richard Prater, director of the Marshall County Court Referral Services drug-testing laboratory..

Prater testified that, as director of the laboratory, he “supervise^], oversee[s], and review[s] all the drug testing results.” (R. 33.) Prater testified that, when a person comes to the laboratory to provide a sample to be tested,

“they sign in on a sheet that’s sitting on the front counter. The person on the other side of the window pulls up their MIDASE] information and WinTOX, which is our data management system, at the same time. They ascertain whether they have a charge or if they have to pay that day. They generate a chain of custody form. They hand the chain of custody form out to the donor, let them sign it. They put it in a tray. The collector picks it up, goes to the back, calls the donor back, collects the specimen. The specimen is taken directly into the laboratory. It is pipetted into a tube, put into the analy[z]er, tested, and then resulted out.”

(R. 34.) Prater also testified that,

[o]nce the sample comes back to the lab and it goes from the collection area right around the corner to the laboratory, the chain of custody, the barcode labels, you know come to us. We label the tube. We make sure that they match. We pipetted the specimen. It’s put into the barcoded rack. And then it’s inserted in the analyzer, and the analy[z]er pretty much does everything else until we get the result.”

(R. 38.)

When Prater was asked about the chain of custody of the sample, he stated: •

“At the time the chain of custody is generated, there’s a barcode label at the bottom of it. We also print out multiple barcode labels that are attached to that chain of custody form. When the individual comes back to have their specimen collected, we take one of those barcode labels and put it on the specimen cup. They provide us with the specimen. The chain of custody and the additional bar-code labels go forward with that, and the person who is pipetting the. specimens takes the other barcode label off, puts it on the tube, makes sure that it all matches, and then pipettes the specimen.”

(R. 39.) Prater testified:

“We can print a result, a hard copy of a result. Ordinarily it comes across, it just shows us the range of drugs that we requested be tested for, positive or negative, and in our case, because we do quantitative testing, it gives us actual numbers. I review it,-and I either approve it or I hold it. We also—the machine also knows to do reflex testing on things such as opiates, which will do additional testing on a positive specimen.
«
“If for some reason we had a validity issue or an invalid specimen, aliquot sample, something like that, where it looks like if we took the specimen and re-ran it we would get a more reliable result.” •

(R. 41-42.)

Prater testified that every person who provides a urine sample is observed providing the sample. Prater testified that Taylor’s sample was collected at 8:01 a.m. and that the test was performed at 2:48 p.m. - the same day. After the sample is tested, the result “comes up in [the] data management system.” (R. 37.) Prater reviews the result and either approves it or suggests further testing. Once the result is approved, the data-management system automatically e-mails those results to the requesting party. Prater testified that he has input on every sample that goes through the laboratory.

Prater testified that the laboratory collected a sample from Taylor on September 25, 2015. Prater was presented with the chain-of-eustody form for the sample, State’s Exhibit 1, and testified that the form was commonly used in the business practice at the laboratory and used in every sample taken. Prater testified that the form “allows us to perform the test. Also that verifies, when the donor signs it, that he’s aware that this is, you know, they’re supposed to look at the barcode labels; they’re supposed to look at the date to verify that they understand and sign off on this chain of custody form.” (R. 46.) Prater testified that Taylor’s signature appears on the form and that the form also contains the initials and signature of Eric Croft, the employee' who collected Taylor’s sample. Prater testified that the laboratory had five employees, including himself. The collectors were Croft and Erica Kelly. The other two employees were Morgan Diamond and Jordan Compton. Prater testified that the collectors would not do technician work. Although Prater did not provide testimony regarding the employee who retrieved the sample and placed it in the rack with other samples to be fed into the analyzer, the chain-of-custody form indicates that an employee with the initials, J.C., presumably Jordan Compton, was the employee responsible. ‘

The prosecutor presented Prater with the printout of the test result, State’s Exhibit 2, which indicated that Taylor’s sample had tested positive for amphetamine and methamphetamine. Prater testified that methamphetamine is a derivative of amphetamine and ■ that amphetamine is used to manufacture methamphetamine. Prater stated that the laboratory conducts a reflex test of “amphetamine positive” to determine whether the amphetamine is amphetamine such as “Adipex or Adderall or if it is methamphetamine or ecstasy.” (R. 59.)

At the conclusion of Prater’s testimony, the circuit court allowed the parties to present argument. The prosecutor stated:

“Judge, simply regarding the statement, again, it is a third positive. There have been a couple of issues. And again, he’s already been jail-to-treatment. And it’s our position again that he’s due to be sanctioned for a positive test from September 24, 2015, and as part ,of that sanction, his treatment be upgraded to a jail-to-treatment order.”

(R. 97.) •

Defense counsel stated:

‘Your Honor, I would just state first that my client has the right to confront and cross-examine the' person who did the analysis. That’s riot happened here today. I don’t believe also the chain of custody has been shown that that’s the same substance that was collected from him that was actually tested and, is reflected in the report that we received, Your Honor.
“I’d .also point out that he has given two hair follicle samples that tested negative. He’s given two Madison County samples that tested negative. According to Mr. Prater, he’s since given 20 specimens that were clean.
‘Your Honor, I think that there’s enough testimony for-the chain of custody, that’s questioned by the chain of custody that this could have been a switch with somebody else’s or could have been some issue. He went out and requested confirmation and also ■ did a hair follicle test to try to show, Your Honor, that he did not consume illegal drugs. We would just ask that he be allowed to continue on drug court.” '

(R. 97-98.)

The prosecutor responded:

“Judge, we’re not asking that he be revoked. We’re simply asking that he comply within the parameters and requirements of drug court. Again, a part of that is being appropriately sanctioned. And we’re not to the point, and hopefully he does not ever get revoked. We want to see, Mr. Taylor succeed., Just because .we’re pushing,this issue does not mean that we want him to be revoked. We hope that he has his sanction, completes his sanction, and successfully grades from Phase II Drug Court.”

(R. 98-99.)

The circuit court issued its ruling, stating:.

“Looking at the issue of chain of custody, the Court feels that, pursuant to the testimony offered by the State, that the procedures in place and that were followed in' this case are sufficient to show confidence in the chain of custody to show thát the drug or the urine sample tested was that of the defendant.
“Now with regard to the testing methods,, the testing methods that were used by the lab are, I think, clearly acceptable either under the Frye or. Daubert standard and have been admitted in other courts. And I have admitted them previously in contested hearings.
((
“The hair follicle test, that was presented by the defense shows negatives. I will .also note that in looking at the dates the test were administered would be outside the window of that that’s recommended by both of these articles submitted, one by the State and one by the defense, for an, acceptable time period for the reliability of the testing.
“The test that was. performed at the drug testing lab at Albertville was one that was performed on urine- that was collected, and the Court believes would show or be representative of the drugs being in his system at that moment. That being said, the Court also notes from the proof presented by the defendant, that on at least 20, it looks like maybe 22 drug tests that he’s had since, this has been pending, that he’s tested negative, and that, to me, is one of the big things. You want to make sure that he remains drug-free. That’s our objective. And I was all on board for him being required to go into treatment when this thing started. After seeing that .he’s remained drug-free for about 20-plus drug tests, I’m not convinced that that’s a correct assessment of his situation that he actually needs to go to treatment.
“However, there is a sanction involved for a positive drug test. And the Court has a hard and fast rule in regards to that, and that is it’s followed. I think it’s discretionary to whether we do a treatment upgrade for him, and that’s not really a sanction. But the Court feels that with what’s been presented here today, that' it’s.not necessary for him to undergo a treatment upgrade and go into in-patient treatment.
“However, a third sanction for a positive drug test would be 21 days in the county jail, and that is a sanction which the Court is going to impose. And by the way, the Court finds that the burden of proof in the probation revocation relating to these issues is not beyond a reasonable doubt. It is instead that the Court be reasonably satisfied. The Court feels that the State' has met that burden of proof of reasonably satisfying the Court as to the violation. Therefore, the Court' feels that, based on the offense committed, the Court finds that there’s a need for incarceration and that no measure short of confinement will avoid depreciating the seriousness of the violation.
“It’s therefore ordered that the defendant remain in drug court and that remain on probation. However, the Court does sanction the defendant to serve a period of 21 days in the county jail and does not order a treatment upgrade.”

(R. 99-102.)

The trial court entered a written order stating that based upon the testimony of Prater and the exhibits admitted it found that Taylor had failed to comply with the terms and conditions of probation by testing positive for controlled, substances. The trial court ordered that Taylor be sanctioned by serving 21 days of jail time in the Marshal County jail.' This appeal followed. . ..

On appeal, Taylor argues that the circuit court erred in finding that he had violated his probation because, he says, it baséd its finding solely on hearsay. Specifically, Taylor- contends that the circuit court based its decision on a drug-analysis that.the State’s only witness, Prater, did not actually perform. Taylor also argues that the circuit court ■ should not have based its fiiiding solely on 'a drug analysis when, he contends, the chain of custody for the sample provided was not proven.

Although Taylor objected to the admission of the report on the ground that the State had failed to prove chain of custody and argued at the conclusion of the hearing that, in addition to the State failing to prove chain of custody, he had been denied the right to confront and to cross-examine the employee who placed the sample into the analyzer, Taylor never objected to the sufficiency of the evidence, either at the conclusion of the hearing or in a post-judgment motion, on‘the ground that the only evidence presented was hearsay. Accordingly, Taylor failed to raise the specific objection that he now raises on appeal. Because Taylor'did not present this argument to the circuit court, ■ it is not preserved for appellate review. Singleton v. State, 114 So.3d 868, 870 (Ala.Crim.App.2012)(holding, that, because the sufficiency of the, evidence presented at the probation revocation hearing was presented .for the first time on appeal, it was not preserved). See also Quattlebaum v. State, 29 So.3d 925, 927 (Ala.Crim.App.2009)(holding that Quattlebaum’s claim that the'court relied solely on hearsay evidence was' not preserved for review).

' With respect to Taylor’s argument that the circuit court erred in considering the drug analysis, we note that this Court has ■held that forensic reports in the nature of the laboratory report that was attested to by Prater are admissible in probation-revocation proceedings, even where they may constitute hearsay or are objected to on chain-of-custody grounds, because strict rules of evidence are not applicable in revocation hearings. This Court has held that

“ ‘ “a probation revocation hearing is not criminal in nature, and therefore neither formal procedures, nor formal rules of evidence need be followed by the trial court.” ’ Allen v. State, 644 So.2d 45, 46 (Ala.Crim.App.1994)(quoting Smith v. State, 445 So.2d 573, 574-575 (Ala.Crim.App.1984)); Thompson v. State, 356 So.2d 757 (Ala.Crim.App.1978); Goodrum v. State, 418 So.2d 942 (Ala.Crim.App.1982). Formal procedures and the application of strict rules of evidence are not required in [a] probation revocation hearing. See Allen, 644 So.2d at 46.”

Chenault v. State, 777 So.2d 314, 316 (Ala.Crim.App.2000). See also Longmire v. State, 575 So.2d 1229 (Ala.Crim.App.1990).

To the extent that Taylor’s arguments on appeal can be construed as an argument that the drug-analysis report should not have been allowed because it violates .his right to confront and to cross-examine the technician who submitted the sample into the. analyzer,, we find that claim to be without merit.

In Chambers v. State, 181 So.3d 429 (Ala.Crim.App.2015), this Court stated:

“In Ex parte Ware, 181 So.3d 409 (Ala.2014), the Alabama-Supreme Court addressed the issue- whether Ware’s Sixth Amendment right to confront witnesses against him was violated when the circuit court admitted into evidence a DNA-proffle report that was based on the work of laboratory technicians who did not testify at trial. The Court analyzed the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and the decisions following Crawford stating:
“ ‘The Sixth Amendment of the United States Constitution provides in part that, “[i]n all criminal prosecutions, the accused shall enjoy thq right ... to be confronted with the witnesses against him.... ” In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the United States Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’ ”
‘“In Crawford, the United States Supreme Court overruled Roberts,- rejecting the “reliability” standard and holding that the right to confront witnesses applies to all out-of-court statements that are “testimonial.” 541 U.S. at 68. Although the Crawford Court did not arrive at a comprehensive definition of “testimonial,” it noted that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” 541 U.S. at 50.
“ ‘Since Crawford, the Supreme Court has released three decisions addressing the application of the Confrontation Clause to forensic-testing evidence. In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Supreme Court held that a sworn certifícate of analysis attesting that certain materials were cocaine was a testimonial statement. The Court, in Melendez-Diaz declined to create a forensic-testing. exception, and it rejected the argument that the certificate at issue there was not testimonial because it was not “accusatory.”.
“ ‘In Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Supreme Court held that the Confrontation Clause applied to an unsworn forensic-laboratory report certifying the defendant’s blood-alcohol level, where the report was specifically created to serve as evidence in a criminal proceeding and there was an adequate level of formalities in the creation of the report.
“‘In Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the United States Supreme Court held, in a plurality opinion, that the Confrontation Clause was not violated where an expert was allowed to offer an opinion based on a DNA-profile report prepared by persons who did not testify and who were not available for cross-examination. Williams involved a bench trial in which a forensic specialist from the Illinois State Police laboratory testified that she had matched a DNA profile prepared by an outside laboratory to a profile of the defendant prepared by the state’s lab. The outside lab’s DNA report was not admitted into evidence, but the testifying analyst was allowed to refer to the DNA profile as having been produced from the semen sample taken from the victim.
“‘The plurality opinion concluded that the analyst’s testimony was not barred by the Confrontation Clause for two independent reasons, neither of which received the concurrence of a majority of the Court. First, the plurality concluded that the expert’s testimony was not admitted for the truth of the matter' asserted but was admitted only to provide - a basis for the testifying expert’s opinions. Second, the plurality concluded that the DNA-profile report was not testimonial because its primary purpose was not to accuse the defendant or to create evidence for use at trial, but “for the purpose of finding a rapist who was on the1 loose.” Williams, 567 U.S. at 58, 132 S.Ct. at 2228. The Williams plurality also noted the inherent reliability of DNA-testing protocols and the difficulties in requiring the prosecution to. produce the analysts who did the testing.’

“Ex parte Ware, 181 So.3d at 413-15 (footnotes omitted).

“In light of the fractured decisions of the United States Supreme Court ’ on this issue, our Supreme Court in Ware concluded that a case could be ‘made for both sides of the issue whether the DNA-profile report in [Ware’s] case was “testimonial” under the “holdings” of Melendez-Diaz, Bullcoming, and Williams.’ 181 So.3d at 416. However, the Court did not resolve the issue because, it concluded that ‘the Confrontation Clause was satisfied by the testimony’ of Jason E. Kokoszka, an employee of Orchid Cellmark Laboratory ‘who supervised and reviewed the DNA testing and who signed the DNA-profile report.’ 181 So.3d at 416. The Court concluded

“ ‘that Kokoszka’s testimony in this ease satisfied the purpose of the Confrontation Clause. Kokoszka signed the DNA-profile report and initialed each page of Cellmark’s “case file” that was also admitted, into evidence. Kokoszka testified that he was one of the individuals taking responsibility for the work that resulted, in the report and that he had. reviewed each of the analyses undertaken to determine that they were done according to standard operating procedures and that the conclusions drawn were accurate and appropriate.. Kokoszka’s testimony at trial provided Ware with an opportunity to cross-examine Kokosz-ka about any potential errors or defects -in the testing and analysis, including errors committed by other analysts who had worked on the case.’

“Ex parte Ware, 181 So.3d at 416-417.” 181 So.3d at 436-37.

In this case, although the technician who submitted the sample to be tested via the machine did not testify at the hearing, Prater, the director of the laboratory, testified about the procedures used at the laboratory and that he supervised and reviewed all test results, including Taylor’s. This testimony provided Taylor with ample opportunity to cross-examine Prater regarding the’ drug-analysis report. The technician who placed the sample into the analyzer machine did not conduct any analysis on the sample. The analysis was done by the' analyzer machine, from which the result was sent to Prater’s' computer. Prater reviewed Taylor’s test result. Therefore, we find that Taylor’s right to confront the witnesses against him was not violated when Prater' testified on the employee’s behalf regarding the drug-analysis report.

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

AFFIRMED.

Windom, P. J., and Kellum and Burke, JJ., concur. Joiner, J., concurs specially, with opinion.

JOINER, Judge,

concurring, specially.

I concur in this Court’s judgment affirming the circuit court’s decision to impose bn William Claude Taylor a 21-day sanction for violating the terms and conditions of his probation and the requirements of the Marshall County Drug Court Program when he tested positive for both amphetamine and methamphetamine. I write specially to commend the Marshall Circuit Court for the drug-court-sanction procedure it used in this case. Having served as a trial judge and having created and presided over the Shelby County Drug Court Program for several years, I realize that developing specific procedures for handling drug-court sanctions can be an arduous task—especially given the dearth of caselaw in this State addressing drug-court programs. I would encourage other drug-court judges in this State either to use or to develop a drug-court-sanction procedure similar to the one outlined in this Court’s opinion. I would also recommend to other drug-court professionals that they take advantage of the vast training resources and educational opportunities available through the National Association of Drug Court Professionals.

      . Prater testified that MIDAS is a state-offender database.