author: THOMPSON, Presiding Judge.

text:
    Nathaniel WALLACE, Jr. v. STATE of Alabama
    2150967
    Court of Civil Appeals of Alabama.
    February 10, 2017
    Yusuf Olufemi, Bessemer, for appellant.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   THOMPSON, Presiding Judge.

Nathaniel Wallace, Jr. (“Wallace, Jr.”), appeals from a judgment entered by the Shelby Circuit Court (“the trial court”) ordering the forfeiture of a 1990 Chevrolet Caprice (“the automobile”). The State of Alabama sought the forfeiture of the automobile on the ground that it was being used to transport marijuana.

The following evidence was adduced at trial. Chris Cannon, an investigator with the City of Alabaster assigned to the Shelby County Drug Task Force (“the task force”), testified that, in September 2014, the task force received information that a confidential informant had purchased several grams of marijuana from a man the informant identified as Nathaniel Wallace III (“Wallace III”), Wallace, Jr.’s adult son. On September 18, 2014, the informant placed a telephone call to Wallace III and the two agreed to meet at a location in Shelby County to conduct a drug transaction. When Wallace III and the informant met, members of the task force detained Wallace III. During a pat-down search of Wallace III, task-force members found a cellophane baggy containing 17 individually wrapped bags of marijuana. The automobile, which Wallace III had driven to meet the informant, was also searched, and two more baggies of marijuana were-discovered. Two guns were also found during the search of the automobile.

Cannon testified that, after Wallace III was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he was asked to whom the automobile belonged. At first, Cannon said, Wallace III was “hesitant to say.” Wallace. Ill then told investigators that the automobile was his but -that 'he had put.it in Wallace, Jr.’s name. Cannon also said that Wallace III said that he had paid Wallace, Jr. $3,200 for the automobile.

Wallace III was placed in jail and questioned further. Cannon-said that investigators told Wallace III that the automobile was registered in Wallace, Jr.’s name and asked him “how did -he wanted to plead on that—on the-r-on the car. He said that he did not want to (inaudible) over to the car.” Cannon said:- “[Supposedly-the car belonged to [Wallace III]. But he says the car was in his daddy’s name.”

Cannon testified that investigators determined that, at the time the automobile was seized, it was registered to Wallace, Jr. Cannon also advised that Wallace, Jr. and Wallace III did not live in the same residence. Later, during his direct testimony, Cannon was asked what Wallace III had told him when Cannon , first asked about the automobile. Cannon testified that Wallace III said the automobile was his but that he had “put it in his granddaddy’s name.”

On cross-examination, Cannon again acknowledged that the automobile was registered to Wallace, Jr., that the title to the automobile was in Wallace, Jr.’s name, and that Wallace, Jr. and Wallace III did not live in the same residence, although they lived on the same street. Cannon also said that Wallace III had no prior drug arrests ,or convictions before his arrest on September 18,2014. Cannon also conceded that he did not speak with Wallace, Jr. about the purchase of the automobile or.notify him that it was being condemned. Cannon further testified that he did not question Wallace, Jr. as to whether he had any independent knowledge that would lead him to believe that Wallace III was involved in the sale of illegal drugs.

■ Wallace, Jr. testified that he owned the automobile. He described it as a black 1.990 Chevrolet Caprice with 24-inch rims and an Auburn emblem on the door, which, he said, he put on during football season. He said that he had put a “nice stereo system” in the automobile and that it had speakers in the trunk. Wallace, Jr. also testified that he had had the automobile painted and had put new tires and rims on it. Wallace, Jr. said that he had purchased the automobile at Precision Auto Sales and had paid $3,200 cash for it. When asked on cross-examination whether he could recall the name of the specific salesperson who sold him the automobile and whether he had the receipt for the automobile, Wallace, Jr. said he did not remember the salesperson and that the purchase had been so long ago that he did not know what he had done with the receipt he had received when he bought the automobile. Wallace, Jr. was able to identify where he took the automobile to have it painted. When asked with whom he dealt there, Wallace, Jr. said: “I just took my car. I don’t know what the guy’s name [was].” Wallace, Jr. said that he bought the stereo at a business named Pull-A-Part but that he did not obtain a receipt there.

Wallace, Jr. testified that he lent the automobile to both Wallace III and his daughter when they needed to use it. He also said that he had paid for the insurance on the automobile' and that he had paid for the license plate each year, even during the time when the automobile had been in the county’s custody. He produced the 2014 receipt for the license plate. Wallace, Jr. also testified that he did not know or have reason to know that Wallace III was selling illegal drugs. No evidence was presented to dispute his testimony on the issue.

After the trial, the trial court entered a judgment ordering the forfeiture of the automobile. Wallace, Jr. timely filed a motion to alter, amend, or vacate the judgment, which was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. Wallace, Jr. timely appealed to this court.

On appeal, Wallace, Jr. contends that the trial court’s judgment ordering the forfeiture of the automobile is against the weight of the evidence.

“The standard of review in this matter is well settled. On appellate review of a ruling from a forfeiture proceeding at which the evidence was presented ore tenus, the trial court’s findings of fact are presumed to be correct and a judgment based on those findings will not be reversed unless the record shows it to be contrary to the great weight of the evidence. Kuykendall v. State, 955 So.2d 442, 444 (Ala. Civ. App. 2006); and Holloway v. State ex rel. Whetstone, 772 So.2d 475, 477 (Ala. Civ. App. 2000). However, ‘that presumption [of correctness] has no application when the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415, 417 (Ala. 1994).”

State v. Saliba, 149 So.3d 616, 618 (Ala. Civ. App. 2014).

In this case, there is no dispute that illegal drugs were found in the automobile. Therefore, the automobile is subject to forfeiture. § 20-2-93(a)(5), Ala. Code 1975. However, Alabama law provides an affirmative defense to innocent owners of property subject to forfeiture. Section 20-2-93(h), Ala. Code 1975, provides, in part:

“An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use.”

“Thus, a ‘lack of knowledge or consent is an affirmative defense, available after the State has made a prima facie case for forfeiture.’ State ex rel. Williams v. One Glastron Boat; 411 So.2d 795, 796 (Ala. Civ. App. 1982).” Kuykendall v. State, 955 So.2d 442, 445 (Ala. Civ. App. 2006).

In this cáse, the trial court found that when Wallace III told investigators that he had purchased the automobile and put the title in Wallace, Jr.’s name, the statement was “a clear admission against interest.” The judgment did not include an explicit finding as to who owned the automobile. The trial court did, however, state:

“Based upon the evidence presented at trial and the inferences attendant thereto, the Court treasonably satisfied that the property was used in violation of the statute and that the State presented a prima facie case. In addition, the claimant, Nathaniel Wallace, Jr., knew or should have known that his son, Wallace III, was using the car illegally.”

If the trial court had found Wallace III to be the owner of the automobile, there would have been no need to determine whether Wallace, Jr. knew or should have known that Wallace III intended to use the automobile to facilitate the sale of drugs in deciding whether to order fhe forfeiture of-the automobile. There is no. evidence in the, record to support- the trial court’s conclusion that Wallace, Jr. knew or should have known that WallaceTII “was using the car illegally.” Wallace, Jr.’s testimony was that he did not know or have any reason to know that Wallace III would use the automobile to facilitate the sale of illegal drugs. He said that he lent the automobile to his daughter and to Wallace III when they asked. Wallace III was no longer a minor, and he did not live in the same home with Wallace, Jr. Cannon admitted that he did not question Wallace, Jr. as to whether Wallace, Jr. had any independent knowledge that would lead him to believe that Wallace III was involved in the sale of illegal drugs. Cannon also acknowledged that Wallace III had had no drug convictions prior to his September 18, 2014, arrest—the arrest that resulted in the forfeiture of the automobile.

“In Culpepper v. State, [587 So.2d 359 (Ala. Civ. App. 1991) ], this court re-. versed a judgment forfeiting a vehicle entered against Culpepper, whose brother had been caught driving the vehicle while in possession of illegal drugs, because the State had failed to present any evidence indicating that Culpepper knew of her brother’s drug use. 587 So.2d at 360-61. Although Culpepper’s brother had apparently been using illegal drugs for some time, the State failed to establish any information available to Culpep-per that ‘should have put Culpepper on notice that ... [her vehicle] would be used for drug purposes.’ 587 So.2d at 361. Therefore, under the circumstances, reasonable diligence did not require that Culpepper make detailed inquiry into her brother’s use of the vehicle.”

Kuykendall v. State, 955 So.2d at 446.

Similarly, in this case, Wallace, Jr. denied that he knew that Wallace III was going to use the automobile to transport marijuana. The State failed to present any evidence to suggest that there was any reason for Wallace, Jr. to use due diligence to inquire into the reason Wallace Ill-wished to use the automobile. Id. Because the evidence does not support the findings the trial court made in its judgment, the judgment ordering the forfeiture of the automobile is due to be reversed. Saliba, supra. The cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The firearms are not at issue in this matter.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    David Michael NASH v. STATE of Alabama
    CR-15-0175
    Court of Criminal Appeals of Alabama.
    February 10, 2017
    Jeffrey C. Duffey, Montgomery; and J.D, Lloyd, Birmingham, for appellant.

      Luther Strange, atty., gen., and Laura I. Cuthbert, asst. atty. gen., for appellee.
   KELLUM, Judge.

David Michael Nash was indicted for murder made .capital because it was committed for pecuniary gain or pursuant to a contract or for hire. See § 13A-5-40(a)(7), Ala. Code 1975. The -jury found Nash guilty of felony murder during a robbery. See § 13A-6-2(a)(3), Ala. Code 1975. The trial court sentenced Nash to 28 years’ imprisonment. • ■

The dispositive issue in this appéal is whether felony murder during a robbery is a lesser-included offense of murder made capital because it was committed for pecuniary gain or for hire as charged in Nash’s indictment.'Nash argues that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in his indictment because, he says,- it does not satisfy the requirements in § 13A-l-9(a), Alá. Code 1975. The State does not dispute that felony murder during a robbery is not a lesser-included offense of capital murder in this particular case. Rather, the State’s sold argument ón appeal is that Nash failed to properly preserve this issue for appellate review. We hold that Nash properly preserved this issue for review and that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in Nash’s indictment.

At the close of the State’s case, Nash moved for a judgment of acquittal on the indicted charge of capital murder for pecuniary gain or for hire. The trial court took the matter under advisement but did not issue a ruling. During the charge conference, Nash renewed his motion for a judgment of acquittal, and the following occurred:

“THE COURT: The Court, has paid close attention- to the testimony -in this case. The Court is going to grant the motion and dismiss and acquit the defendant on murder for hire. The Court will allow this case to go to the,, jury, .on felony murder under 13A-2-23.Í]
. “[DEFENSE COUNSEL]:. Judge, we also would. like to object to the case going to the .jury on felony murder on the. ground that there is insufficient evidence to send it to the jury on felony murder,for.,those,same reasons we just detailed, and also,that it’s not a lesser included offense of the crime charged.
“THE: COURT: - Ypur motion is denied:” ;

(R; 647—48; emphasis added.)-The State argues that Nash’s objection to the trial court’s instructing the jury on felony murder failed to include the word “robbery” and, therefore, was not sufficiently specific to preserve for review his argument on appeal that felony murder during a robbery is not a lesser-included offense of capital murder for pecuniary gain or for hire as- charged in his indictment. We disagree.

“‘The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged'- error, giving an opportunity to correct it before the case is submitted to the jury.’” Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003) (quoting Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)). “An objection must be specific enough to put the trial court on notice of any alleged error and provide the court with an opportunity to correct any error if necessary.” Finch v. State, 715 So.2d 906, 912 (Ala. Crim. App. 1997). However, “magic words” are not required as long as it is clear from the record that the trial- court was aware of the basis of the objection. See, e.g., Ex parte Hatfield, 37 So.3d. 733, 736-38 (Ala. 2009), and Ex parte Weaver, 763 So.2d 982, 986 (Ala. 1999).

This is not a case in which Nash failed to state any grounds in support of his objection. See, e.g., Lawrence v. State, 409 So.2d 987, 989 (Ala. Crim. App. 1982) (“An objection without specifying a single ground, such as T object,’ ‘objection,’ or ‘we object’ is not sufficient to place the trial court in error for overruling the objection.”). Rather,' in lodging his objection to the trial court’s instructing the jury on felony murder, Nash specifically argued that felony murder was not a lesser-included offense of the indicted- charge of capital murder for pecuniary gain or for hire. Nash’s objection was specific enough to put the trial court on notice that Nash did not believe that felony murder—whether the underlying felony was robbery or any other felony enumerated in § 13A-6-2(a)(3), Ala. Code 1975—was a lesser-included offense- of the indicted charge. Indeed, the record clearly indicates that the trial court was on notice of the error alleged by Nash—after further discussion, the court specifically stated that felony jnurder “is a lesser included offense.” (R. 649.) Therefore, Nash properly preserved this issue for appellate review.

Section 13A-l-9(a), Ala. Code 1975, provides:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
“(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
“(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
“(3) It is specifically designated by statute as a lesser degree of the offense charged; or
“(4) It differs from the' offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.”

“[I]n determining whether one offense is included in another, the focus is on the statutory elements of the offenses and the facts as alleged in the indictment, not on the evidence presented at trial.” Moss v. State, 929 So.2d 486, 489 (Ala. Crim. App. 2005).

Nash was indicted for capital murder pursuant to § 13A-5-40(a)(7), which provides that “[mjurder done for a pecuniary or other valuable consideration or pursuant to a contract or for hire” is a capital offense. The indictment tracked the language of the statute:

“The Grand Jury of Montgomery County charge that, before the finding of this indictment, David Michael Nash, whose name is otherwise unknown to the Grand Jury, and/or. an accomplice did intentionally cause the death of Ralph Henry McNeill, by having him killed for a pecuniary or other valuable consideration or pursuant to a contract or for hire, in violation of section 13A-5-40(A)(7) of the Code of Alabama, against the peace and dignity of the State of Alabama.”

(C. 40.) At the time of the crime, § 13A-6-2(a)(3), Ala. Code 1975, provided:

“(a) A person commits the crime of murder if he or she does any of the following:
“(3) He or she commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree, or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime -that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”

The trial court instructed the jury on felony murder with the underlying felony of robbery.

'Considering the statutory elements of the offenses and the facts as alleged in the indictment in this case, felony murder during a robbery is a not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in Nash’s indictment. Felony murder during a robbery requires that the murder occur during the course of a robbery. However, the charge in Nash’s indictment of capital murder for pecuniary gain or for hire does not require a robbery. Because felony murder during a robbery requires a fact, robbery, that the charged offense does not, felony murder during a robbery cannot be established by the same or fewer than all the facts required to establish the offense of capital murder for pecuniary gain or for hire as charged in Nash’s indictment. See .§ 13A-1-9(a)(1). Cf. Ex parte Haney, 603 So.2d 412, 419 (Ala. 1992) (holding that convictions for - both capital murder during a robbery and capital murder for pecuniary gain or for hire for the murder of the same vietim did not violate double-jeopardy principles because each offense requires an element that the other does not). Moreover, because felony murder during a robbery. requires an additional fact not required by the charged offense of capital murder for pecuniary gain or for hire, it necessarily does not differ from the charged offense “only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.” § 13A-l-9(a)(4) (emphasis added). Finally, felony murder during a robbery does not consist of an attempt or solicitation to commit the offense charged, § 13A-l-9(a)(2), nor is it specifically designated by statute as a lesser degree of the offense charged, § 13A-l-9(a)(3).

Therefore, under the circumstances in this case, felony murder during a robbery ⅛ not a lesser-included offense of capital murder for pecuniary gain or for hire as charged in Nash’s indictment, and the trial court erred in instructing the jury on that offense.

Based on the foregoing, the judgment of the trial court is reversed and this cause remanded for proceedings consistent with this opinion. We note that because the trial court granted Nash’s motion for a judgment of acquittal on the indicted offense of capital murder for pecuniary gain or for hire, Nash cannot be retried for that offense. See, e.g., Day v. State, 124 So.3d 168, 171 (Ala. Crim. App. 2013).

REVERSED AND REMANDED. ■

Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

      , Section 13A-2-23, Ala. Code 1975, is the accomplice-liability statute, not the felony-murder statute.

      . This section was amended effective May 1, 2016, to add as an enumerated felony the offense of aggravated child abuse. See Act No. 2016-29, Ala. Acts 2016.

      . Because we reverse Nash's conviction and sentence on the ground that the trial court erred in instructing the jury on felony murder during a robbery, we need not address the other issues Nash raises on appeal.


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.192.
    No. SC17-1522
    Supreme Court of Florida.
    [November 9, 2017]
    Judge Jon Berkley Morgan, Chair, Criminal Procedure Rules Committee, Kis-simmee, Florida; and John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

This matter.is before the Court for consideration of the out-of-cycle report of The Florida Bar’s Criminal Procedure Rules Committee seeking. clarification of the most, recent amendments to Florida Rule of Criminal Procedure 3.192 (Motions for Rehearing). See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction. See art. V, § 2(a), Fla. Const.

Florida Rule, of Criminal Procedure 3.192 pertains to motions for rehearing in non-postconviction relief cases. The rule was first adopted in 2009 in case number SC09-159 and became effective January 1, 2010. See In re Amends. to Fla. R. Crim. Pro., 26 So.3d 534 (Fla. 2009). Rule 3.192 has been amended twice-since, in two separate cases in 2016. See In re Amends. to Fla. R. Crim. Pro., 167 So.3d 395,(Fla. 2015) (Case No. SC15-290; effective June 11, 2015); In re Amends. to Fla. R. Crim. Pro., 188 So.3d 764 (Fla. 2016) (Case No. SC15-177; effective Jan. 1, 2016).

Inadvertently, the amendments that were adopted and made effective in Case No. SC16-290 on June 11, 2016, were not included in rule 3.192 as subsequently amended in Case No. SC15-177 and issued on October 29, 2015. To clarify the 2015 amendments to rule. 3.192, the Court reiterates what language was deleted or added to the rule, as discussed below.

In .the first opinion amending rule 3.192 in 2015, In re Amendments to the Florida Rules of Criminal Procedure, 167 So.3d 395 (Fla. 2015), the rule was amended as follows including the deleted language in struck-through text and the new language as underlined:

RULE 3.192. MOTIONS FOR REHEARING
When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision,, and shall not present issues not previously raised in the proceeding. A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. I-f-no-order is.filed -within-dO-days,.the- -motion is deemed denied. A timely filed motion for rehearing shall toll rendition of the order, subject to appellate review and the order shall be deemed, rendered 40-day-s from-the.order -of which-rehearing- -⅛ soug-h-ti-or upon the filing of a signed, written order denying the motion for rehearing, whichever is-ear-liar, This rule shall not apply to post-conviction proceedings pursuant to rule 3.800(a), 3.850, 3.851, or 3.853/ Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case.

Id. at 397.

In the second, opinion amending rule 3.192 in 2015, In re Amendments to the Florida Rules of Criminal Procedure, 188 So.3d 764 (Fla. 2015), the rule was amended as follows including the deleted language in struck-through text and the new language as underlined:

RULE 3.192. MOTIONS FOR REHEARING
When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for "rehearing shall state with particularity the points of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding. A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. If no order is filed within 40 days, the motion is deemed denied. A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered 40 days from the order of which rehearing is sought, or upon the filing of a written order denying the motion for rehearing, whichever is earlier. This rule shall not apply to post-conviction postconviction proceedings pursuant to rule 3.800(a), 3.801, 3.860, 3.851, or 3.858. Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case.

Id. at 771.

As evident in reviewing the language of the latter rule amendment, the amendments previously adopted were not included in the subsequent opinion. Accordingly, based upon the amendments adopted by the Court in Case Nos. SC15-290 and SC15-177, rule 3.192 should read as follows:

RULE 3.192. MOTIONS FOR REHEARING
When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding, A response may be filed within 10- days of service of the motion. The trial court’s order, disposing of the motion for rehearing shall be filed within 15 days of the response ,but .not later than 40 days from the date of the order of which rehearing is sought. A timely filed, motion for rehearing shall toll rendition of the order subject to appellate review and .the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing. This rule shall' not apply to postconviction proceedings pursuant to rule 3.800(a), 3.801, 3.850, 3.851, or 3.853. Nothing in this rule precludes the trial court from'exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case.

Rule 3.192, as amended in the. Court’s prior opinions, is shown fully engrossed in the Appendix to this opinion.

It is so ordered.

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

APPENDIX

RULE 3.192. MOTIONS FOR REHEARING

When an appeal by the state is authorized by Florida Rule of Appellate Procedure 9.140, or sections 924.07 or 924.071, Florida Statutes, the state may file a motion for rehearing within 10 days of an order subject to appellate review. A motion for rehearing, shall state with particularity the points of law or fact that, in the opinion of the state, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding. A response may be filed within 10 days of service of the motion. The trial court’s order disposing of the motion for rehearing shall' be filed within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought. A timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing. This rule shall not apply to postconviction proceedings pursuant to , rule 3.800(a), 3.801, 3.850, 3.851, or 3.853. Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case,