author: MOORE, Judge.

text:
    EX PARTE THOMPSON TRACTOR COMPANY, INC. (In re Ray Franklin and Donna Franklin v. Thompson Tractor Company, Inc., et al.)
    2160086
    Court of Civil Appeals of Alabama.
    January 13, 2017

      James R. Shaw and J. Bart Cannon of Huie, Pernambucq & Stewart, LLP, Birmingham, for petitioner.
    Thomas J. Knight of Hubbard & Knight, Anniston, for respondents.
   MOORE, Judge.

Thompson Tractor Company, Inc. (“the employer”), has filed a petition for a writ of mandamus requesting that this court order the Calhoun Circuit Court (“the trial court”) to dismiss a civil action pending before it.- Because we conclude that the civil action abated upon the death of the sole plaintiff, we grant the petition.-

On May 11, 2011, Ray Franklin (“the employee”) and Donna Franklin (“the widow”) jointly filed a complaint against the employer and other defendants, which the clerk of the trial court assigned case number CV-11-153. Count six of the complaint contains 12 paragraphs numbering from 82 to 93. Paragraph 84 of the complaint states: .“As a result of Defendant’s [sic] actions, Plaintiff Ray Franklin contracted one or more asbestos-related diseases, including asbestosis.” Paragraph 85 states that “Plaintiff Ray Franklin has been diagnosed with asbestosis.” Paragraph 86 states that “the plaintiff, Ray Franklin, received an injury or injuries arising out of and in the course of plaintiffs said employment. ... As a proximate result of said employment, Plaintiff has suffered an injury to his person.” Paragraph 87 asserts that the employee suffered a “permanent loss of his lung capacity.” Paragraph 88 refers to the employee’s having to use “his own funds and Ms own insurance to obtain medical treatment....” Paragraph 93 alleges that it has been necessary for the “Plaintiff ... to hire attorneys to represent him.” Based on its wording, we conclude that count six of that complaint asserts a claim solely by the employee against the employer for benefits under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala. Code 1975, on account of his contraction of asbestosis.

On July 29, 2011, the trial court severed count six from the remaining counts of the complaint, and the clerk of the trial court assigned the severed claim (“the workers’ compensation action”) a separate civil-action number, i.e., case number CV-11-321. When a claim is severed from the original action under Rule 21, Ala. R. Civ. P., “a new action is created, just as if it had never been part of the original action .... ” Key v. Robert M. Duke Ins. Agency, 340 So.2d 781, 783 (Ala. 1976). The severed action continues as a separate proceeding involving only the parties to the severed claim. See Chamblee v. Duncan, 188 So.3d 682, 691 (Ala. Civ. App. 2015). In this case, after count six was severed, the clerk of the trial court and the parties continued to identify the widow as a named plaintiff in the workers’ compensation action; however, the widow did not make any claim in the workers’ compensation action. In determining who is a party, as in all matters of procedural law, the label assigned by the trial court does not control because the substance of the action, not its form, controls. See generally Morgungenko v. Dwayne’s Body Shop, 23 So.3d 671, 674 (Ala. Civ. App. 2009); see also Dillard v. Smith, 146 Tex. 227, 229, 205 S.W.2d 366, 367 (1947) (holding that court considers substance of the body of the pleading, and not the style of the case, to determine proper parties to action). We conclude that, because the widow did not make any substantive claim in the workers’ compensation action, the continuing reference to the widow in the style of the case did not grant her status as a plaintiff. The employee was actually the sole plaintiff in the workers’ compensation action.

On October 23, 2011, before any adjudication of the employee’s rights to workers’ compensation benefits, the employee died, allegedly due to work-related asbestosis. On February 1, 2012, the widow filed a motion to be substituted as the plaintiff in the workers’ compensation action, both in her individual capacity and as the personal representative of the estate of the employee, and a motion to amend the complaint to include two tort claims—a wrongful-death claim and a claim for death benefits under the Act. See Ala. Code 1975, § 25-5-60. While those motions were pending, the employer filed a motion to dismiss the workers’ compensation action, ■ arguing, among other theories, that'the trial court had lost subject-matter jurisdiction upon the death of the employee. The widow responded by filing, in December 2013, a second civil action against the employer and others seeking death benefits under the Act (“the death-benefits action”); that action was assigned case number OV-11-900671. The widow subsequently moved the trial court to consolidate the death-benefits action with the workers’ compensation action.

On September 20, 2016, the trial court granted the motion to consolidate and denied the employer’s motion to dismiss the workers’ compensation action. The employer filed a motion for the trial ’court to reconsider its denial of the motion to dismiss, which motion remained pending when the employer filed this timely petition for the writ of'mandamus on November 1, 2016. In its petition, the employer requests that this court issue a writ of mandamus ordering the trial court to dismiss the workers’ compensation action.

Rule 25(a),' Ala. R. Civ. P., ■ provides, in pertinent part: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties.” (Emphasis added.) Rule 25 does' not govern whether a claim is extinguished, which is a matter of substantive law unaffected by the Alabama Rules of Civil Procedure. See 1 Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated, Rule 25 (4th ed. 2004).

Under long-standing Alabama law, “[an employee’s] rights [to workers’ compensation benefits] terminate[s] at his [or her] death.” Ex parte Woodward Iron Co., 277 Ala. 133, 135, 167 So.2d 702, 703 (1964). A workers’ compensation claim is not considered an action that-survives the death of an employee so that it may be continued in the name of a personal representative of the - estate of the employee under Ala. Code 1975, § 6-5-462. See Owens v. Ward, 49 Ala.App. 293, 296-97, 271 So.2d 251, 254, (Civ. App. 1972) (“The ‘cause of action’ of the employee does not survive [after his or her death], nor for that matter does the employee’s ‘action’ survive under the statute .... ”). If a workers’ compensation claim has been adjudicated or settled before the death of an employee, a dependent widow may recover the benefits specified in Ala. Code 1975, 25-5-57(a)(5), but, if not, the claim abates upon the death of the employee. See Gibson v. Staffco, L.L.C., 63 SolSd 1272, 1274 (Ala. Civ. App. 2010) (“[A] cláim for benefits under the Act does not survive the death of a worker if, as in this case, the degree of the worker’s disability is not ascertained by a court or agreed to between the parties before the worker’s death.”).

Because the employee’s claim for workers’ compensation benefits was extinguished by his death, the widow could not be substituted as a plaintiff under Rule 25 in order to pursue any claim based on the employee’s work-related injury. See generally Hardin v. Palmer Truss Co., 558 So.2d 963, 964 (Ala. Civ. App. 1990) (quoting Owens v. Ward, 49 Ala,App. at 296, 271 So.2d at 254) (“The workmen’s compensation statutes do not extend to widows and dependent’ children a right ‘to succeed to the deceased employee’s cause of action for determination of benefits.’”). In that regard, workers’ compensation cases differ from ordinary civil actions seeking damages for personal injuries, which do survive the death of the plaintiff and which can be continued by a. personal representar five of the estate of the plaintiff as a wrongful-death suit, See King v. National Spa & Pool, Inst., Inc., 607 So.2d 1241 (Ala. 1992).

When the only claim before a trial court is extinguished by the death of the plaintiff, the action abates and becomes a nullity so that no further action can be taken in the case, including the amendment of the complaint to substitute a new plaintiff and to add new claims based on the personal injuries or death of the deceased plaintiff. Elam v. Illinois Cent. Gulf R.R., 496 So.2d 740, 742 (Ala. 1986), overruled on other grounds by King v. National Spa & Pool Inst., Inc., supra. A trial court lacks jurisdiction to act on a case that has been abated by the death of one of the parties. See Ex parte Thomas, 54 So.3d 356 (Ala. 2010). A court that lacks jurisdiction has the power only to dismiss the action. Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d 315, 319 (Ala. 2011). Any other order or judgment entered by the trial court after the action has been abated is void ab initio due to lack of subject-matter jurisdiction. Id.

In this case, the trial court denied the' motion to dismiss filed by the employer, purporting to allow the workers’ compensation action to be continued in consolidation with the death-benefits action. However, the trial court lacked authority to enter its September 20, 2016, order because the workers’ compensation action had abated on October 23, 2011, and could not be revived. The trial court retained jurisdiction only to rule on the motion to dismiss, which it had an imperative duty to grant.

In its petition for a writ of mandamus, the employer reiterates its argument to the trial court:

“When [the employee] died, the trial court lost jurisdiction over the only claim pending in the action against [the employer] (count six). As a result, the only proper action that the trial court could take from that point forward was to dismiss the action.”

The employer is correct on that point, but the employer improperly'frames the issue as one of standing, asserting that the trial court lost jurisdiction because “[the employee] is the only person who has ever had standing to pursue that claim” and that the widow lacks standing. We determine that the jurisdictional issue at hand does not involve any question of standing. See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 41 (Ala. 2013) (discussing the concept of standing in depth). Nevertheless, we conclude that the petition for a writ of mandamus is due to be granted.

“As our Supreme Court noted in Ex parte Progressive Specialty Insurance Co., 31 So.3d 661, 663 (Ala. 2009), questions of a trial court’s subject-matter jurisdiction are reviewable by means of a petition for a writ of mandamus. Further, our review of such questions is not limited to grounds specifically raised in a mandamus petition because a lack of subject-matter jurisdiction is not subject to waiver by the parties,, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.”

Ex parte T.C., 63 So.3d 627, 630 (Ala. Civ. App. 2010) (emphasis added), superseded on other grounds by statute, as recognized in Ex parte F.T.G., 199 So.3d 82, 86 (Ala. Civ. App. 2015). Thus, regardless of the fact that the employer has not specifically argued abatement at any point in the proceedings, we are bound to notice that the workers’ compensation action abated, and that the trial court lost jurisdiction over the action, upon the death of the employee.

“ ‘ “A writ of mandamus is an extraordinary remedy that-is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is ‘appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; 'and (4) the properly invoked jurisdiction of the court.’ Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001).” ’”

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005)). A writ of mandamus is the proper remedy to correct a trial court’s order erroneously denying a motion to dismiss that is based on a lack of subject-matter jurisdiction. See Ex parte Hampton, 189 So.3d 14, 16 (Ala. 2015).

For the foregoing reasons, we grant the petition for a writ of mandamus and instruct the trial court to vacate its September 20, 2016, order and to enter a new order granting the employer’s motion to dismiss.

PETITION GRANTED; WRIT ISSUED.

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

      . The dismissal of the workers’ compensation action does not affect the death-benefits action, which, under our instructions, remains a separate civil action. Nothing in our opinion should be construed as commenting on the merits of-that action.


source: Caselaw Access Project

author: WELCH, Judge. KELLUM, Judge,

license: Public Domain

text:
    Brandon YATES v. STATE of Alabama.
    CR-14-1151.
    Court of Criminal Appeals of Alabama.
    July 8, 2016.
    Rehearing Denied September 2, 2016.

      Susan Graham James, Montgomery, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WELCH, Judge.

The appellant, Brandon Yates, was convicted, as an accomplice, of murdering Brandarius Hill, see § 13A-6-2, Ala.Code 1975; two counts of attempting to murder Tyris Miller and Jamar Thompson, see § 13A-6-2 and § 13A-4-2, Ala.Code 1975; and shooting into an occupied vehicle, see § 13A-11-61, Ala.Code 1975. Yates was sentenced to 40 years in prison for the murder conviction, 30 years for each attempted-murder conviction, and 10 years for the conviction for firing into an occupied vehicle, the sentences to be served concurrently.

The State’s evidence tended to show that in the early morning hours of September 18, 2011, police were dispatched to the Selebras Club (“the Club”), a nightclub in Silas, Alabama, in response to a 911 emergency call that a shooting had taken place in the parking lot of the Club. Dr. Erin Barnhardt, Deputy Chief Medical Examiner of the Mississippi State Medical Examiner’s Office, testified that Brandarius Hill died as a result of a gunshot wound to the right side of his head. (R. 208.) Testimony also established that Tyris Miller was shot in the leg and that Jamar Thompson was shot in the head, twice in the left leg, and once in his left arm.

Numerous people were in the parking lot of the Club at the time of the shootings and testified at Yates’s trial. Tyris Miller testified that he was at the Club at closing time at around 2:00 a.m. on the morning of September 18, 2011, and that he, Brandari-us Hill, Tony McGrew, and a few other people were standing in the parking lot talking. He was sitting on his car looking at his cellular phone, Miller said, when a “guy with [dreadlocks] came out of the club” and started talking to him. While he and the “guy with dreads” were, talking, a “white guy” walked between them. (Testimony established that Yates was the only person in the parking lot with dreadlocks at the time of the shootings. (R. 159.)) Miller asked the “white guy” for cigarettes, and the. guy with “dreads” started cursing and walked away. A .few minutes later Aaron Hicks grabbed him and turned him around. Miller said that he could see five or six guys standing in a line and the guy in the middle was holding what looked like an AK-47 assault rifle. He tried to move away, but Hill came up to him and put his arm around his neck. Miller said that he heard several “booms,” that Hill fell to the ground, and that he tried to get away but was shot in the leg and fell to the ground.

. Aaron Hicks , testified that he was in the parking lot of the Club when the shooting occurred and that he was with Brandarius Hill, Ladarius HiU,. Terrance Boone, and Tyrjs.-Miller. ■ Miller, he. said, was sitting on his car and “looking funny.” Hicks asked what-was happening and Miller told him that one “dude” thought he was talking to him and got mad when he started talking to someone else. Hicks told Miller that he needed to talk with the “dude” but Miller thought there was no problem. Hicks testified that he thought he saw a guy running up with a gun so he took off running. The confrontation was over' ' Hicks said, when a “tall dudé” came ovér and made the other “dude” go toward the road, so he went back to his car. He heard Miller call Brandarius Hill and that is when the shooting started. The gun, he said, “looked like an AK with a drum on the bottom of it.” (R. 188.) There were two guns being shot, he said, the first "gun was the AK and then a pistol. After the shooting stopped he saw a white Tahoe sport-utility vehicle speeding off toward Mississippi.' When he went back to his car, he said, he saw Miller holding his leg and Brandarius Hill face down on the ground. Hicks testified 'that the guy shooting the gun was Melton Crosby.

Kelvin Hill testified that he was in the parking lot of the Club at the time of the shootings and that he saw Melton Crosby walk to his truck and come back with a gun. Crosby, he said, told him that he was going to talk with Tyris Miller. A' minute later, he said, he heard gunshots. The shots were coming from two guns, he said—a pistol and an AK-47. Hill testified' that Yates was at the Club that night, that he had his hair in dreadlocks, and that he had gold teeth.

Yavanda London testified that she was at the Club at the time of the shootings and that-she-was with two friends. She testified that she knew Cedrick Jones and Melton Crosby and that she knew Yates by sight. London testified that on the night of the shooting Yates was with Jones and Crosby and that they walked out of the Club together at closing time. About 15' minutes after the Club closed she was in the parking lot with her friends when they heard shots by “Aaron’s- [Hicks] car,” a green Crown -Victoria. London testified that there were many shots fired and that some gun fire was coming from a vehicle, a Tahoe. After the shooting stopped the Tahoe sped off toward Mississippi.

Jamar Thompson testified that he-was at the Club on the evening of the shooting and that when the Club closed he went to the parking lot. He was talking to Bran-darius Hill when his cousin told him to get into the car because something was about to happen. About five minutes later he heard gunshots, “like, a machine gun.” The shots, he said, were coming from a Tahoe. (R, 171.) Thompson said that he was shot in the head, twice in the left leg, and once in his left arm and that he spent three and a half weeks in the hospital. (R. 173-75.) Thompson said that he had to have rehabilitation to learn to walk, talk, and swallow again.

Quinton Whigham testified that he was at the Club in the parking lot at the time of the shootings, that the shooting started near Aaron’s car, that he saw the guy shooting the gun, and that the guy was Melton Crosby shooting what he described as the “long gun,” Multiple shots were fired, he said, and evéryone starting ducking behind and in the cars. Whigham said that he observed a white Tahoe leave the parking lot and head toward Waynesboro after the shootings.

Danielle McGrew testified that she was at the Club in the parking lot at the time of the shootings and she was in a black Tahoe talking to two other people when they heard shots. They drove out of the lot and headed towards Mississippi. McGrew said that when they were about a half mile from the Club when a couple of vehicles pulled behind them and then passed them. The vehicles were both white, he said, and were traveling at a “high rate of speed” toward Mississippi, (R. 201.)

Dylan Mazingo testified that he was incarcerated with Yates at the Marengo County jail in October 2011, He testified that he overheard Yates say that “[tjhere wouldn’t be no evidence found because they wore socks on their hands, no fingerprints on the bullets because of the socks.” (R. 276.) Mazingo said that he also heard Yates say that “[tjhey got away with it once and they would get away.with it again.” (R. 276.) After Mazingo spoke with police, Mazingo testified, Yates told him that he better be careful what he said because he knew where his family lived. (R. 277.) Mazingo said that he also overheard Yates make telephone calls in which he discussed cleaning his house or getting “stuff out of his house.”

Darryl Linder, a special agent with the Department of Public Safety, testified that he seized cellular telephones from Yates and Crosby. He further testified concerning a telephone call made by Yates from the Marengo County jail. (The recording of the call and a transcript of the call were admitted into evidence.) In the call, Yates is talking to his sister and asks her to get his pistol from under his bed. Yates also telephoned his mother and told her to clean up his house and to contact everyone on his telephone list and to tell them that his phone had been seized. Agent Linder also introduced registrations from two motor vehicles, a white Chevrolet sport-utility vehicle, registered to Cedrick Jones, and a white Chevrolet Tahoe, registered to Yates.

Forensic testimony showed that 47 bullet casings, consistent with having been fired from an AK-47, were recovered from the scene and 15 nine-millimeter casings were recovered. Bullets were also recovered from 3 vehicles: 1 bullet from a Plymouth Breeze, 2 bullets from a Saturn, and 15 bullets from a Crown Victoria.

Chris Hall, a former technology examiner with the Alabama Bureau of Investigation, testified that he received several cell phones from Agent Linder so that he could analyze data on the phones. He retrieved a contact list from Yates’s phone -and a text history. A picture of a “drum for a .22 caliber rifle” was also taken from Yates’s cell phone. The other -two phones he received from Agent Linder were Crosby’s phones. On the morning of the shootings 18 calls were made from Yates’s cell phone and Crosby’s cell phone to each other from 2:41 a.m. to 4:21 a.m.—immediately after the shootings.

Choctaw County Sheriff Tom Abate testified that he interviewed Yates and that Yates admitted that he was at the Club on the night of the shooting but, he said, he left before the shooting started.

Yates argues that the circuit court erred in admitting into evidence State’s exhibit number 46, a transcript of a telephone conversation between Yates and Crosby that occurred on October 10, 2011, about three weeks after the shootings. Specifically, Yates argues that the content of the conversation was inadmissible under Rule 404(b), Ala. R. Evid. Yates further argues that the “very ambiguity of the [conversation] demonstrates that the risk of undue prejudice far outweighs any probative value that the [conversation] may have had.” (Yates’s brief, pp. 44-45.)

The record shows that before trial the State filed notice of its intent to use Rule 404(b) evidence in the form of a telephone call by Yates to Crosby while Yates was incarcerated in the county jail. (C.R.210.) At the pretrial hearing on the issue, the State argued that less than one month after the shootings Yates had a telephone conversation with Crosby in which Yates said he wanted to kill someone who had stolen his clothes. At the conclusion of the hearing, the circuit court withheld ruling on the evidence. (R. 20.) When the State sought to admit the recording of the conversation, the court allowed its admittance pending identification of the voices on the recording. The court also gave a limiting instruction that the conversation was admissible only for purposes of showing that “Yates had the intent to aid and abet Melton Crosby in the commission of these alleged offenses.” (R. 319.)

In the conversation, Yates refers to Stacy Pittman, who he claimed stole his clothes, and the following occurred:

“Brandon Yates: You already know, dude. You know what I be going. Right. (Indiscernible) stole my clothes and shit.
“[Crosby]: Yea, boy (indiscernible). I wanted to get at him, you hear me, ‘bout—but you know what I’m saying, when I saw him, I said, shit, I ain’t goin’ do nothing with him. I ain’t goin’ beat him up [indiscernible]. I’ll wait ‘til my nigger get out (indiscernible) gon’ handle that (indiscernible). You know I know your clothes, cuz.
U
“Brandon Yates: Damm, man, I can’t wait ‘til I get up outta this bitch, boy. Man, that old boy—I gotta have that boy, boy. I’m telling you now (indiscernible).
“[Crosby]: (indiscernible) He-he-he-he-he went—he went over—over the barrel with that one, bro. (indiscernible).
«
“Brandon Yates: Bu um, (indiscernible) I need—I need to put a smashing on that nigger, dog. Real mother fucking clear. I need [indiscernible] to get my clothes from that boy, (indiscernible) I’m gon’ kill him.
“[Crosby]: (indiscernible) right here, man.”

(Suppl. R. 33-36) (emphasis added). The State asserted that the conversation showed that Yates and Crosby were conspiring to kill the person who had stolen Yates’s clothes, Stacy Pittman, and that that evidence tended to show that Yates had the intent to aid and abet Crosby in the shootings at the Club.

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

“Evidence of prior or subsequent collateral bad acts and crimes is generally inadmissible.” Bailey v. State, 75 So.3d 171, 183 (Ala.Crim.App.2011).

“ ‘ “On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.” ’ Pope v. State, 365 So.2d 369, 371 (Ala.Crim.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01. (3d ed.1977).”

Robinson v. State, 528 So.2d 343, 347 (Ala.Crim.App.1986).

Rule 404(b) addresses exceptions to the general exclusionary rule and provides:

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

(Emphasis added.) “This Court has held that the exclusionary rule prevents the State from using evidence of a defendant’s prior bad acts to prove the defendant’s bad character and, thereby, protects the defendant’s right to a fair trial.” Ex parte Drinkard, 777 So.2d 295, 302 (Ala.2000).

When discussing “intent” as it relates to Rule 404(b) the Alabama Supreme Court has stated:

“Intent has been defined as ‘the ripened purpose to effect a result.’ Fuller v. State, 269 Ala. 312, 336, 113 So.2d 153, 175 (1959). Dean Charles Gamble has addressed the admissibility of collateral-act evidence pursuant to the intent exception to Rule 404(b) as follows:
‘“If the accused is charged with a crime that requires a prerequisite intent, collateral crimes, acts or misconduct are admissible to show that the accused possessed the necessary intent. This rule is based upon the theory that because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently. Whether the collateral act has a tendency to show that the accused did possess the prerequisite state of mind is, of course, one of relevancy vested largely in the discretion of the trial court.’
“1 Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 69.01(5)(6th ed.2009) (footnotes omitted).”

Towles v. State, 168 So.3d 133, 155 (Ala.2014).

“[I]t is well settled that ‘“[wjhere the requisite intent is presumed or inferred from proof of the criminal act itself or where the intent of the defendant is not in issue, evidence of other crimes is not admissible.” ’ Brewer v. State, 440 So.2d 1155, 1159 (Ala.Crim.App.1983) (quoting Wharton’s Criminal Evidence § 245 at 560 (C. Torcía 13th ed.1972)).”

Horton v. State, 217 So.3d 27, 51-52 (Ala.Crim.App.2016).

Even though collateral-act evidence may be offered for the purpose of any of the grounds contained in Rule 404(b) its admission is not automatic.

“Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be .reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects,’ United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir. 1977) (citations omitted).”

Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985). The balancing test discussed in Averette is now incorporated in Rule 403, Ala. R. Evid.

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Rule 403, Ala. R. Evid. (Emphasis added.)

This Court has stated the following concerning the weighing process:

“ ‘In making ... a determination [as to whether the prejudicial effect of. the collateral-act evidence outweighs its probative value], the court should consider at least the following factors. The first is how necessary the evidence is to the prosecution’s case— i.e., whether there are less prejudicial ways of proving the asserted purpose. The availability of such alternate proof would mitigate in the direction of excluding the. more prejudicial collateral crimes or acts.. A second factor is the weight of relevancy or probative force of the evidence in terms of proving the purpose for which it is offered. Last, the court should consider ’ the effectiveness of a limiting instruction in the sense of whether it would' be effective, as a means of avoiding the prejudice of the jury’s using the act as a basis from which to -infer commission of the -charged crime, in limiting the jury’s use of the offered evidence to the stated purpose.’
"Charles W. Gamble and Robert J. Goodwin, McElroy’s Alabama Evidence § 69.02(l)(c) (6th ed.2009). .
“ ‘ “Prejudicial” is used in this phrase to limit the introduction of probative evidence of prior [or subsequent] misconduct only when it is unduly and unfairly prejudicial. State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).
‘““Of course, ‘prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.’ State v. Hurd, 360 A.2d 525, 527 n. 5 (197), quoting McCormick, Handbook on the Law of Evidence § 185 at 439 n. 31 (2nd ed.1972).”
“ ‘State v. Forbes, 445 A.2d 8, 12 (Me. 1982).’ ”

Horton v. State, 217 So.3d at 57, quoting, in part, Averette v. State, 469 So.2d 1371, 1374 (Ala.Crim.App.1985). Other states that have rules similar 'to Rule 404(b) and Rule 403 have characterized the “unfair prejudice” discussed in Rule 403 as follows: State v. Passons, 158 Idaho 286, 292, 346 P.3d 303, 309 (2015) (“Evidence is unfairly prejudicial when it suggests a decision was made on an improper basis.”); State v. Rawlings, 159 Idaho 498, 506, 363 P.3d 339, 347 (2015) (“[Rule 403] only applies to evidence that is unfairly prejudicial because it tends to suggest that the jury should base its decision on an improper basis.”); State v. Spears, 403 S.C. 247, 253, 742 S.E.2d 878, 881 (Ct.App.2013) (“Unfair prejudice means an, undue tendency ".to suggest a decision on an improper basis.”); State v. Henderson, 107 So.3d 566, 568 (La.2013) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”); State v. Paddock, 204 N.C.App. 280, 286, 696 S.E.2d 529, 534 (2010) (“ “Unfair prejudice” within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one,’ ”); State v. Ericson, 159 N.H. 379, 389, 986 A.2d 488, 496 (2009) (“Evidence is unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, arouse its sense of horror, or provoke its instinct to punish, or trigger other mainsprings of human action that may cause a jury to base its decision upon something other than the established propositions in the case.”).

“Probative value gauges the strength and force of the relevancy of the evidence presented. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988) (citations omitted).
“ ‘ “Unfair prejudice” is an undue tendency to suggest decisions by the fact finder based on an improper basis, often an emotional one. Unfairly prejudicial evidence is evidence which appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [which] may cause a jury to base its decision on something other than the established propositions in the case. . The appellate court may conclude that “unfair prejudice” occurred because an insufficient effort was made below to avoid the dangers of prejudice, or because the theory on which the evidence .was offered was designed to elicit a response from the jurors not justified by the evidence.’
“State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997) (citations omitted).”

State v. Most, 578 N.W.2d 250, 253-54 (Iowa Ct.App.1998).

The conversation between- Yates and Crosby was, at best, confusing; a good portion of it was incomprehensible. We agree with Yates that it is not clear from the conversation that Crosby intended to aid and abet Yates in killing another person. Thus, we fail-to seé the relevance of the conversation. Also, given the disjointedness of the conversation we cannot say that the evidence was “plain and conclusive.” See Averette, 469 So.2d at 1374.

Moreover, the evidence was not necessary to the, State’s case under the theory argued .by the State. Testimony. established that Yates was in the parking lot at the time of the shootings and that he was with Crosby and Jones—his two codefen-dants. In a telephone call to his sister Yates told her to get his pistol from under his bed. Yates also telephoned his mother and asked her to clean up his- place and to contact everyone on his telephone list and tell them that police had seized his phone. Testimony suggested that what caused the shootings was a disagreement between Yates and Miller. Two white sport-utility vehicles sped- from the- scene. Yates and Crosby both drove-white sport-utility vehicles, In the hours immediately following the shootings, Yates and Crosby had cell phone contact 18 different times from 2:41 a.m. to 4:21 a.m. Yates told his.cell-mate that they would not find any-fingerprints on the bullets because he and his codefen-dants wore socks. Yates also said that he got away with it once and that he would again.

Indeed, we can conceive of only one clear purpose for admitting the conversation between Yates and Crosby into evidence—to show Yates’s propensity to kill. Alabama courts have reversed the following cases after finding that collateral-act evidence had been improperly admitted: Ex parte Jackson, 33 So.3d 1279 (Ala.2009) (holding that, in prosecution for capital murder, admission of evidence of defendant’s prior murder conviction was not admissible and constituted reversible error); Ex parte Casey, 889 So.2d 615 (Ala.2004) (holding that, in prosecution for receiving stolen property, evidence of defendant’s prior convictions for theft and unauthorized use of credit card constituted reversible error); Horton v. State, supra (holding that, in prosecution for capital murder, it was reversible error to admit evidence that defendant had used cocaine, that he had assaulted his girlfriend, and that he had assaulted his mother by choking her); Frye v. State, 185 So.3d 1156 (Ala.Crim.App.2015) (holding, in first degree rape case, that it was reversible error to admit evidence that the defendant had physically assaulted victim because intent is not an element of the first-degree rape charge); Marks v. State, 170 So.3d 712 (Ala.Crim.App.2014) (holding, in prosecution for first-degree rape, that evidence of defendant’s sexual assault of other women was not admissible and that its admission constituted reversible error); Towles v. State, 168 So.3d 124 (Ala.Crim.App.2013) (holding that, in the prosecution for capital murder, admission of testimony that defendant had assaulted son was reversible error); Bailey v. State, 75 So.3d 171 (Ala.Crim.App.2011) (holding that, in prosecution for capital murder, admission of testimony concerning defendant’s attempted theft did not fall under any exception to the exclusionary rule and was unfairly prejudicial); Hurley v. State, 971 So.2d 78 (Ala.Crim.App.2006) (holding that, in prosecution for first-degree rape, admission of defendant’s prior rape conviction was unfairly prejudicial); Upton v. State, 933 So.2d 1105 (Ala.Crim.App.2005) (holding that, in prosecution for felony DUI, it was reversible error to admit evidence of defendant’s prior DUI convictions); McAdory v. State, 895 So.2d 1029 (Ala.Crim.App.2004) (holding that, in prosecution for possession of cocaine, evidence of defendant’s two prior drug convictions was not admissible and admission was reversible error); Moore v. State, 878 So.2d 328 (Ala.Crim.App.2003) (holding that, in prosecution for capital murder, admission of evidence of defendant’s prior convictions for assault and murder was reversible error); Draper v. State, 886 So.2d 105 (Ala.Crim.App.2002) (holding that, in prosecution for trafficking in cocaine, evidence that defendant had previously been convicted of possessing cocaine was not admissible and its admission was reversible error).

As the Alabama Supreme Court has cautioned:

“The State has no absolute right to use evidence of prior acts to prove the elements of an offense or to buttress inferences created by other evidence. Evidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant. It interjects a collateral issue into the case which may divert the minds of the jury from the main issue.”

Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983).

After considering the entire record, we are convinced that the erroneous admission of the telephone conversation “had an almost irreversible impact on the minds of the jurors.” Evidence that Yates told Crosby that he was going to kill Stacy Pittman was certainly more prejudicial than probative, and it should have been excluded.

Moreover,
““‘Whether the improper admission of evidence of collateral bad acts amounts to prejudicial error or harmless error must be decided on the facts of the particular case.” R.D.H. v. State, 775 So.2d 248, 254 (Ala.Crim.App.1997); Hobbs v. State, 669 So.2d 1030 (Ala.Crim.App.1995). The standard for determining whether error is harmless is whether the evidence in error was “harmless beyond a reasonable doubt.” Schaut v. State, 551 So.2d 1135, 1137 (Ala.Crim.App.1989), citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).’
“Hunter v. State, 802 So.2d 265, 270 (Ala.Crim.App.2000), ‘[T]he harmless error rule excuses the error of admitting inadmissible evidence only [when] the evidence was so innocuous or cumulative that it could not have contributed substantially to the adverse verdict.’ Ex parte Baker, 906 So.2d 277, 284 (Ala.2004).”

Horton v. State, 217 So.3d at 59. Neither can we say that the evidence was “so innocuous or cumulative that it could not have contributed substantially to the adverse verdict”—we cannot find that the admission of the Rule 404(b) evidence was harmless.

For the foregoing reasons Yates’s convictions are hereby reversed and this ease is remanded to the Choctaw Circuit Court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and BURKE, J., concur.

KELLUM, J., dissents, with opinion.

JOINER, J., dissents.

KELLUM, Judge,

dissenting.

In Horton v. State, 217 So.3d 27 (Ala.Crim.App.2016), this Court explained:

“We recognize that in Alabama ‘[i]t is a basic and fundamental principle of evidence that in á murder prosecution, it is not permissible to show a difficulty between the accused and a third person not connected with the victim or the offense.’ Caylor v. State, 353 So.2d 8, 10 (Ala.Crim.App.1977). ‘ “However, where their connection with the offense sufficiently appears, evidence of prior [or subsequent] difficulties between [the] accused and a third person is admissible.” ’ Hellums v. State, 549 So.2d 611, 614 (Ala.Crim.App.1989) (quoting 40 C.J.S. Homicide § 209 (1944)) (emphasis omitted). The test to be applied in determining whether a defendant’s threat to Mil a person other than the murder victim is admissible ‘is whether there was a reasonable and sufficient connection between the threat to the third person and the Mlling.’ State v. Ramirez, 116 Ariz. 259, 266, 569 P.2d 201, 208 (1977).”

217 So.3d at 50. In Horton, we held that the defendant’s threat to shoot anyone who did not help him get out of jail and to burn their houses down was admissible under Rule 404(b), Ala. R. Evid., as evidence of the defendant’s consciousness of guilt. Specifically, we held that there was a sufficient connection between the defendant’s threat and the murder for which the defendant was on trial because the threat involved the same unique circumstances as the murder.

In this case, I believe there was a sufficient connection between Brandon Yates’s threat to kill Stacy Pittman and the shooting for which Yates was on trial to render Yates’s threat admissible' under Rule 404(b) as evidence of his intent to aid and abet Melton Crosby in the shooting. Yates made the threat to kill Pittman while he was speaking to Crosby about retribution for a perceived wrong to Yates (Pittman’s allegedly stealing Yates’s clothes). Similarly, the shooting for which Yates was on trial as an accomplice to Crosby occurred shortly after another perceived wrong to Yates (Tyris,Miller’s allegedly not paying..sufficient attention to Yates during a conversation they had just before the shooting). , I agree with .the State’s argument in its brief that the conversation ..between Yates and Crosby , established the relationship between Crosby and Yates as cohorts willing to aid each other in criminal endeavors and, thus, that it was relevant to the issue whether Yates intended to promote or assist the shooting by procuring, inducing, or causing Crosby to commit the shooting and/or by aiding or abetting Crosby in- the shooting. Additionally, based .on the whole of the record, I believe that evidence establishing that Yates and Crosby were willing to assist each other when necessary to “right” a perceived wrong was reasonably necessary to the State’s. case to' establish Yates’s accomplice liability in the shooting.

Therefore, I respectfully dissent.

      . Tyris Miller’s name is spelled "Tyrus” and "Tyris” at various portions in the record. We have used the spelling that appears in the indictment. (C.R.719.)

      . Yates's accomplices, Melton Crosby and Cé-dride Jones, were also charged. Yates was the first of the three to be tried.

      . Hicks called the car a Tahoe during the majority of his testimony but once referred to it as a Yukon, (R. 188.)

      . In the transcript of the telephone conversation, this person was identified as "1st male voice.” At trial, this voice was identified as that of Melton Crosby.

      . ' Rule 403, Ala. R. Evid., became effective on January 1,-1996.

      . Because we find reversible error regarding the Rule 404(b) issue we do not address the other issues raised in Yates’s brief to this Court.


author: BOLIN, Justice.

text:
    Ex parte State of Alabama (In re: Brandon YATES v. STATE of Alabama)
    1151287
    Supreme Court of Alabama.
    February 17, 2017
    Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen,, and Jack W. Willis, asst. atty. gen., for petitioner.
    Susan G. James of The James. Firm, Montgomery, for respondent.
   BOLIN, Justice.

The writ of certiorari is quashed.

In quashing the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT QUASHED.

Stuart, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.


author: ROTHENBERG, C.J.

text:
    Pedro LASSUS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-0792
    District Court of Appeal of Florida, Third District.
    Opinion filed August 30, 2017
    Pedro Lassus, iri proper person.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
   ROTHENBERG, C.J.

Pedro Lassus filed a motion on February -9, 2017 seeking postconviction relief under Florida Rule of Criminal Procedure 3.850 in lower ease numbers F14-5139 and F15-4493. On June 19, 2017, the trial court issued an order denying the motion as untimely. The only attachments to the order are Lassus’s motion and the attachments Lassus included with his motion. In the motion, Lassus contends that he entered his plea of guilty to the above cases and a judgment of conviction was entered on June 3, 2015. If this assertion is correct, then his February 9; 2017 motion for post-conviction relief was timely filed.

Because the trial court’s order does not include, attach, or reference any record evidence to refute Lassus’s claim that a judgment of conviction was entered on June 3,2015, and his postconviction motion was filed on February 9, 2017, we reverse the order denying the motion as untimely filed. If the trial court, again enters an order denying postconviction relief, the court shall attach record excerpts conclusively showing that Lassus is not entitled to relief..See Fla. R. App. P. 9.141(b)(2)(A).

Reversed and remanded for further proceedings.


author: PER CURIAM.’

text:
    Robert MOORE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-1946
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    Rehearing Denied October 11, 2017
    . Robert Moore, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.’

Appellant, Robert Moore, appeals the trial court’s denial of his Florida Rule of Criminal Procedure 3.800(a) motion on the grounds that this is the “fourth or fifth” time Appellant has raised the same argument attacking his consecutive sentences. We affirm. Appellant is: warned that the filing of any additional successive and frivolous pro.se petitions or appeals attacking his convictions and sentences entered in the Fifth Judicial Circuit Case No. 2007-CF-127 will result in the issuance of an order to show cause why he should not be denied further access to this court. See State v. Spencer, 751 So.2d 47 (Fla. 1999).

AFFIRMED.

EVANDER, LAMBERT and EISNAUGLE, JJ., concur.


author: LAMBERT, J.

text:
    Jason Daniel TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2974
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

Following the denial of Appellant’s motion to withdraw his open plea, the trial court adjudicated Appellant guilty on the sole count of dealing in stolen property, a second-degree felony, and sentenced him to serve ten years in prison, to be followed by four years of drug offender probation. In this direct appeal, Appellant challenges his conviction and sentence. We reject Appellant’s various arguments for reversal of the conviction without further discussion.

However, we agree with Appellant, and the State has conceded, that the trial court erred by placing Appellant on drug offender probation. Section 948.20(1), Florida Statutes (2014), sets forth the specific circumstances under which a defendant may be placed on drug offender probation. Because Appellant was not convicted of one of the specific crimes described in the statute for which drug offender probation is authorized, he could only be placed on drug offender probation following his open plea if he committed a nonviolent felony as defined in this statute and his Criminal Punishment Code scoresheet total sentence points were sixty points or fewer. See § 948.20(1), Fla. Stat. (2014). Appellant scored 181 sentencing points on his scoresheet and was therefore ineligible to receive drug offender probation. See State v. Winbush, 121 So.3d 1165, 1166 (Fla. 5th DCA 2013) (holding that a defendant who scored more than sixty points on his sentencing scoresheet and was not convicted of an offense specifically referenced in the drug offender probation statute was ineligible to receive drug offender probation).

On remand, the trial court may resentence Appellant to regular probation and may also impose such special conditions as it deems appropriate, provided that they are reasonably related to the offense and promote Appellant’s rehabilitation or are for the protection of the public. See Redmond v. State, 970 So.2d 915, 916 (Fla. 5th DCA 2007). Accordingly, Appellant’s conviction is affirmed; that part of his sentence imposing drug offender probation is reversed; and this matter is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE REVERSED, IN PART; CAUSE REMANDED.

COHEN, C.J., and ORFINGER, J., concur.

      . § 812.019(1), Fla. Stat. (2014).

      . Appellant preserved appellate review of this sentencing error by timely filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


author: PER CURIAM.

text:
    Dennis CHRISTENSEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2266
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Rehearing Denied October 13, 2017
    Dennis Christensen, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied on the merits.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Anthony MIMS, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-3122
    District Court of Appeal of Florida, First District.
    Opinion filed September 7, 2017.
    Rehearing Denied October 13, 2017
    Anthony Mims, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


text:
    Willie MATHIS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0344
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Rehearing Denied October 26, 2017

      Willie Mathis, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie Lee, Assistant Attorney General, Tallahassee, for Appellee. .
   PER CURIAM.

We previously affirmed the summary denial of Appellant’s postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. We also ordered the appellant to show cause why sanctions should not be imposed for his frivolous filings in this Court.

Appellant has failed to obtain relief in five previous postconviction appeals that he filed in this Court to challenge his judgment and sentence in Baker County Circuit Court Case 02-2004-CF-000165-A. The instant appeal involves an untimely postconviction motion raising a claim that has been argued and rejected numerous times. Due to Appellant’s apparent abuse of the legal process by his repeated, frivolous pro se filings attacking his judgment and sentence, this Court issued an order directing him to show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla. 1999). Appellant has not shown cause for his repeated frivolous filings.

Therefore, because Appellant’s repeated attacks on his judgment and sentence have become an abuse of the legal process, we hold that he is barred from future pro se filings in this Court concerning Baker County Circuit Court Case 02-2004-CF-000165-A. The Clerk of this Court is directed not to accept any future filings concerning this case unless they are filed by a member in good standing of The Florida Bar.

ROBERTS, MAKAR, and JAY, JJ., CONCUR.


author: SLEET, Judge.

text:
    Larry Donell FLEMING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-469
    District Court of Appeal of Florida, Second District.
    Opinion filed September 27, 2017.

      . Howard L. Dimmig, II, Public Defender, and Jean-Jaeques A. Darius, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Larry Donell Fleming appeals his judgment and sentences following a jury trial. Fleming was convicted of sexual battery with a deadly weapon,- lewd or lascivious battery, lewd or lascivious molestation, kidnapping, and fleeing or eluding a law enforcement officer. Because Fleming’s convictions for sexual battery and lewd or lascivious battery violate double jeopardy, we reverse the lewd or lascivious battery conviction and sentence. We affirm Flem-mg’s remaining convictions and sentences without discussion.

At trial, the State presented evidence that Fleming picked up a fourteen-year-old girl in his car against her will and drove her to a secluded orange grove where he forcibly raped her. Fleming then dropped the girl off at her high school, and she reported the abuse to school authorities. On appeal, Fleming argues that his convictions for sexual battery and lewd or lascivious battery violated double jeopardy because they were based on the same specific sexual conduct with a single victim. We must agree.

“Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008). The double jeopardy clauses in the United States and Florida constitutions prohibit multiple convictions for the same offense. Amend. V, U.S. Const. Art I, § 9, Fla. Const. Under section 775.021(4)(a), Florida Statutes (2014), “[wjhoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense.” Therefore, when considering a double jeopardy claim alleging multiple convictions for the same offense, we first consider whether the convictions arose from the same criminal transaction or episode. § 775.021(4)(a); see also Lee v. State, 223 So.3d 342, 348 (Fla. 1st DCA 2017); Partch v. State, 43 So.3d 758, 760 (Fla. 1st DCA 2010). If we conclude that “the convictions arose from the same criminal episode, we ‘must then determine if the convictions were predicated on distinct acts.’ ” Lee, 223 So.3d at 348 (quoting Partch, 43 So.3d at 760); see also § 775.021(4)(a). Only after determining that the convictions arose from the same criminal episode and were not based on distinct acts do we then consider whether each offense requires an element that the other does not. Batchelor v. State, 193 So.3d 1054, 1058 (Fla. 2d DCA 2016); Lee, 223 So.3d at 349.

In determining whether convictions arose from the same criminal episode or were based on distinct acts, “the reviewing court examines the entire record, including all evidence admitted at trial.” Lee, 223 So.3d at 349. The record reflects that Fleming’s convictions for sexual battery and lewd or lascivious battery arose from the same criminal episode in this ease. The conduct occurred in the same place and at the same time, and there was only one alleged victim. See Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (“In order to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002))). There is no evidence in the record to support a conclusion that the charges for sexual battery and lewd or lascivious battery were based on “distinct criminal acts of a separate character and type.” See State v. Drawdy, 136 So.3d 1209, 1214 (Fla. 2014). The information alleged the same specific sexual act as the basis for both charges, and at trial, the victim testified to a single sexual encounter with Fleming. Therefore, Fleming’s charges were not predicated on distinct acts. See Graham v. State, 207 So.3d 135, 139 (Fla. 2016) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Because Fleming’s charges for sexual battery and lewd or lascivious battery arose from the same criminal episode and were not predicated on distmct acts, we must determine whether sexual battery and lewd or lascivious battery each contain an element that the other does not. See § 775.021(4)(a). In conducting this analysis, we are limited to the language of the statute “without regard to the accusatory pleading or the proof adduced at trial.” § 775.021(4)(a).

Section 794.011(l)(h), Florida Statutes (2014), defines sexual battery as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” Section 800.04(4)(a)(l), Florida Statutes (2014), defines lewd or lascivious battery as “[ejngaging in sexual activity with a person 12 years of age or older but less than 16 years of age.” The definition of “[sjexual activity” in section 800.04(l)(a) is identical to the definition of sexual battery in section 794.011(l)(h). Thus, the crime of lewd or lascivious battery contains all of the elements of sexual battery. See generally Williams v. State, 957 So.2d 595, 599 (Fla. 2007) (holding that lewd or lascivious battery is a permissive lesser included offense of sexual battery and explaining that “when the State alleges that the victim was between ages twelve and fifteen in a count charging a violation of section 794.011(3) (sexual battery as defined), that charge subsumes lewd or lascivious battery under section 800.04(4)(a) (sexual activity as defined)”). Although the victim’s young age is an element of lewd or lascivious battery that is not included in sexual battery, “[t]o avoid a violation of double jeopardy, each offense must contain an element not within the other.” Graves v. State, 95 So.3d 1033, 1036 (Fla. 5th DCA 2012).

Accordingly, we conclude that Fleming’s convictions for both offenses violate double jeopardy. We vacate his conviction and sentence for lewd or lascivious battery as the lesser of the two offenses. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006).

Affirmed in part; vacated in part.

SILBERMAN and LUCAS, JJ., Concur.


author: SALTER, J.

text:
    Julio J. MARTINEZ, Appellant, v. Carlos HERNANDEZ, et al., Appellees.
    No. 3D17-1735
    District Court of Appeal of Florida, Third District.
    Opinion filed September 27, 2017

      Jose M. Herrera, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, Oren Rosenthal and Michael B. Valdes, Assistant County Attorneys; Lorena E. Bravo, City of Hialeah City Attorney; Akerman LLP and Elizabeth M. Hernandez and Lorayne Perez; Rasco Klock Perez Nieto and Joseph P. Klock, Jr.; Thomas A. Cobitz, for appel-lees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   SALTER, J.

Julio J. Martinez (“Martinez”) appeals a final judgment in favor of: the City of Hialeah (“City”); the City’s incumbent Mayor, Carlos Hernandez (“Hernandez”);, the City Clerk for the City of.Hialeah, Marbelys L. Rubio-Fatjo; and the Miami-Dade County Supervisor of Elections, Christina White. The legal issue raised by Martinez in his circuit court action was whether the City Charter’s term limits for the Office of Mayor precluded incumbent Mayor Hernandez from qualifying to run for a further term in the City’s upcoming November 7, 2017, municipal election.

The trial court concluded that Martinez’s lawsuit was ripe, and that Hernandez could permissibly qualify and seek election for a further terra as Mayor of the City. We affirm.

The trial court entered a thorough and well-reasoned order granting the City’s motion for judgment on the pleadings. We merely address our standard of review and summarize the trial court’s analysis for the benefit of those who may again confront this interpretive question in other elections for term-limited offices.

Standard of Review

The parties correctly acknowledge that this Court reviews an order granting a motion for judgment on the pleadings de novo. See Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d DCA 2011) (“A judgment on the pleadings may be granted only if the moving party is clearly entitled to judgment as a matter of law ,.. and our standard of review is de novo.” (internal citation omitted)). Additionally, the standard of appellate review with respect to the interpretation of a charter or ordinance is de novo. See Kuvin v. City of Coral Gables, 62 So.3d 625, 629 (Fla. 3d DCA 2010).

The rules of statutory construction are applicable to the interpretation of municipal charters. See Spence-Jones v. Dunn, 118 So.3d 261, 262 (Fla. 3d DCA 2013) (The plain meaning of the statute is always the starting point in statutory interpretation,); and GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007) (“[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”).

Analysis

The City’s ordinance regarding the term limits applicable to the office of Mayor provides, in pertinent part:

Section 2.01.—Mayor.
(b) Election and term of office. In the general election held in November 2001 and in the general election held in November every four years thereafter, a mayor shall be elected who shall serve for a term of 4 years or until a successor shall be duly qualified to take office.
(c) Vacancies.
(1) Permanent vacancy resulting from death, resignation, recall, court order or other lawful action. If the office of the mayor becomes permanently vacant by reason of death, resignation, recall or other lawful action, such vacancy shall be filled with the person holding the office of council president, who shall exercise all of the duties of the office of mayor and shall perform the duties and assume the responsibilities of that' office and shall become mayor and serve out only that portion of the former may- or’s term that precedes the next regularly scheduled municipal election or state or federal general election for which there is sufficient time to adopt a special election ordinance establishing qualifying periods and related prbvi-sions, when an election shall be héld to fill the balance of the term, if any,
(d) Term limitations; effective date. No person shall be elected to, serve as mayor for more than 2 consecutive terms on and after November 13, 1997.

[Emphasis provided],

Hernandez became Mayor of Hialeah in May 2011 when the then-serving Mayor, Julio Robaina, permanently resigned the office. Hernandez was then serving as president of the City Council,. and thus became Mayor to “serve out only that portion of the former mayor’s term that preceded the next regularly scheduled municipal election.. .for which there is sufficient time to adopt a special election ordinance establishing qualifying periods and related provisions, when an election shall be held to fill the balance of the term, if any,” as provided in section 2.01(c).

The City Council then adopted Ordinance No. 11—39, scheduling a special election for November 15, 2011, to fill the permanent vacancy for the balance of the prior Mayor’s term (about two years rather than a four-year term). Hernandez ran and was elected in that special election.

In the next general election for the office of Mayor (and a four-year term) in November 2013, Hernandez also ran and was elected Mayor. Martinez’s complaint boils down to a legal argument that “2 consecutive terms” in section 2.01(d) of the ordinance includes a partial term of less than four years (which section 2.01(c) refers to initially as “the former mayor’s term”). To express it another way, two uninterrupted, consecutive mayoral terms would comprise eight years of service,, but if Hernandez is qualified and elected again in November 2017 (and if he serves that full four-year term), he will have served about ten and one-half years as Mayor. But if it is determined that his service as Mayor for the balance of former Mayor Robaina’s term counts as Hernandez’s “term” and he is disqualified on that basis, he will only have been allowed to serve about six and one-half years.

The trial court correctly applied two legal principles to this scenario in rejecting Martinez’s argument that the partial, remaining term of a resigned Mayor should be counted against the successor as if it is a full term for purposes of section 2.01(d). First, as a matter of statutory interpretation and plain meaning, the text of section 2.01(b) expressly provides for elections every four years to select a Mayor for a four-year term. The unusual circumstances resulting in a particular four-year term not being fully served affect the “former may- or’s term,” implying that whatever part of that term remains is not counted as a full “term” attributable to the successor.

This common-sense conclusion also was reached in the two closest reported cases in Florida: Ervin v. Collins, 85 So.2d 852 (Fla. 1956) (concluding that the Governor, who had been elected in a special election to fill a portion of an unexpired term, could not be considered ineligible to run for reelection for a full term); and Vieira v. Slaughter, 318 So.2d 490 (Fla. 1st DCA 1975) (holding that a two-year, nine-month transitional term, followed by a full four-year term, did not constitute a term of office within the meaning of a charter provision prohibiting a mayor who has served for two consecutive terms from running for a third term).

Second, the trial court properly relied on an interpretive canon applicable to Florida election cases. See Ruiz v. Farias, 43 So.3d 124, 127 (Fla. 3d DCA 2010) (“The law requires that we resolve doubts about qualification of a political candidate in favor of the candidate.”). The Florida Supreme Court has recently underscored the basis for that rule of construction: “the right to be a candidate for public office is a valuable one and no one should be denied this right unless the Constitution or an applicable valid law expressly declares him to be ineligible.” Wright v. City of Miami Gardens, 200 So.3d 765, 775 (Fla. 2016). The Hialeah ordinance at issue in this case does not “expressly” characterize a successor’s partial term (filling a vacancy in the office of Mayor) as a “term” for purposes of the term limitations in section 2.01(d).

Martinez’s final argument is that section 166.021(4), Florida Statutes (2017), precludes the City from (in effect) modifying the term limitation provision of the City ordinance “without approval by referendum of the electors.” Martinez asserts that it would be necessary for the ordinance to be amended by the voters to clarify that a partial term, served to fill a vacancy, is not a “term” for purposes of section 2.01(d).

This argument is unavailing, because, as already noted, we have concluded that the ordinance and term limitation provisions are clear enough as they presently exist. Martinez remains free, of course, to support an amendment to section 2.01 for consideration by the voters of Hialeah at a later date to effectuate his own position that a partial term to fill a vacancy is a “term” for purposes of section 2.01(d).

For all these reasons, the final judgment in favor of the appellees is affirmed.

      . Martinez's action for declaratory and in-junctive relief was filed in May 2017, before either he or -incumbent Mayor Hernandez qualified to run for Mayor in the upcoming election, as the qualifying period for filing for the office was July 10 through 31, 2017. The trial court determined that the matter was ripe for decision, and no party challenges that conclusion here.

      . We granted Martinez’s motion to expedite briefing and consideration of this case. We deny his pending request for oral argument, as we do not find it necessary to our resolution of the legal issues presented in the parties' written submissions.


text:
    George STALLWORTH, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2950
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Rehearing Denied October 26, 2017
    George Stallworth, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

This Court reserves jurisdiction to consider the imposition of sanctions.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


author: WINSOR, J.

text:
    Richard A. CARLSON, Appellant, v. STATE of Florida, Department of Revenue, and Systems and Methods, Inc., Appellees.
    CASE NO. 1D15-5217
    District Court of Appeal of Florida, First District.
    Opinion filed September 29, 2017

      W. Robert Vezina, Eduardo S. Lombard, and Megan Reynolds, Vezina, Lawrence & Piscitelli, PA, Tallahassee, for Appellant.
    Frederick F. Rudzik, Jeffrey Kelly, and Thomas Kovacik, Florida Department of Revenue Office of General Counsel, Tallahassee, for Appellee Florida Department of Revenue.
    Karen Walker, Mia McKown, and Nathan Adams, IV, Holland & Knight LLP, Tallahassee, for Appellee Systems & Methods, Inc.
   WINSOR, J.

Florida is the Sunshine State. It has long had the “Government in the Sunshine Law,” which generally requires open meetings for boards, commissions, state agencies, and the like. See § 286.011, Fla. Stat. (2017); see also Art. I, § 23, Fla. Const. The statute, which the Legislature “enacted in the public interest to protect the public from ‘closed door’ politics,” Wood v. Marston, 442 So.2d 934, 938 (Fla. 1983), is serious business: not only is there criminal liability for officials who knowingly disregard it, e.g., § 286.011(3)(b), Fla. Stat. (2017), but also Florida law provides that “where officials have violated section 286.011, the official action is void ab initio,” Sarasota Citizens For Responsible Gov’t v. City of Sarasota, 48 So.3d 755, 762 (Fla. 2010).

But while sunshine may be “the best of disinfectants,” Buckley v. Valeo, 424 U.S. 1, 67 n.80, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (quoting L. Brandéis, Other People’s Money 62 (National Home Library Foundation ed. 1933)), sometimes the public is better served without real-time meeting access. Accordingly, the Legislature has enacted limited exceptions to the open-meeting requirements. This case requires us to consider the reach of one of those statutory exceptions—an exception that applies in the contract procurement context and exempts “[a]ny portion of a team meeting at which negotiation strategies are discussed.”

I.

The Florida Department of Revenue maintains a child-support program that processes and disburses child-support payments. According to the Department’s website, it annually processes payments of more than a billion dollars on behalf of almost a million children. About the Child Support Program, http://floridarevenue. com/dor/childsupporVabout_us.html (last visited Sept. 28, 2017). The Department relies on outside vendors to support this system, and vendor contracts can involve significant state dollars. (The contract at issue below involved tens of millions of dollars.) Not surprisingly, therefore, the Department’s vendor-selection process can face great scrutiny.

Xerox State and Local Solutions, Inc., (Xerox, for short), operated the program for years. When the contract came up for renewal in 2013, Xerox hoped to keep it. To do so, Xerox had to beat out Systems and Methods, Inc., (SMI), the only other company to respond to the Department’s invitation to negotiate (ITN). Ultimately, the Department selected SMI—a decision that led to litigation and this appeal.

After losing out on the contract, Xerox challenged the procurement decision by filing a chapter 120 administrative action. That action was ultimately unsuccessful; this court affirmed the Department’s final order awarding the contract to SMI. Xerox State & Local Sol., Inc. v. Dep’t of Revenue, 187 So.3d 386 (Fla. 1st DCA 2016) (per curiam).

In a separate action, a Xerox manager— appellant Richard Carlson—sued the Department, contending that the procurement process violated Florida’s Sunshine Law. Carlson alleged that the Department had violated both chapter 286, Florida Statutes, and article I, section 24 of the Florida Constitution. He sought a declaration that the contract award was void, an injunction prohibiting the Department from continuing with the contract, and attorney’s fees. SMI intervened as an additional defendant, and the parties filed competing summary judgment motions after a lengthy discovery period. After a hearing, the trial court entered summary judgment against Carlson, who brought this appeal.

II.

To understand Carlson’s claims, we must first understand a bit more about the procurement process at issue. The Department issued the ITN in 2013, seeking qualified contractors to provide specific services. The Department also appointed an Evaluation Team and a Negotiation Team to participate in the selection process. The Evaluation Team’s job was to evaluate the proposals and share their evaluations with the Negotiation Team. The Negotiation Team’s job was to conduct negotiations with the bidders and ultimately decide the winner. All parties agree that the Negotiation Team had the authority to ultimately decide which vendor won.

The Evaluation Team never met. Its members independently reviewed the proposals and passed along their independent evaluations. The Negotiation Team, by contrast, met some twenty-two times. Some meetings included interaction with representatives from SMI and Xerox, and some did not. At one meeting, the Negotiation Team decided to proceed with only SMI and to solicit SMI’s best and final offer. At the Team’s final meeting—the May 16 meeting—the Negotiation Team discussed the proposal and finalized and memorialized its decision to declare SMI the winner.

III.

Carlson presents several challenges to the trial court’s summary judgment order, an order we review de novo, Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla. 2001).

A.

We begin with Carlson’s arguments about the Evaluation Team. Carlson does not complain that the Evaluation Team met outside of the sunshine; his complaint is that the team didn’t meet at all. Rather than operating as components of a collegial body, each Evaluation Team member individually evaluated' the competitors’ proposals, individually assigned scores, and individually submitted their scores for consideration by others. The team never met, never collaborated, and never discussed the competing proposals.

Carlson contends that the Evaluation Team was responsible for “crystallizing” the ultimate procurement decision, so it was obligated to meet—and to meet in public. Cf. Tolar v. Sch. Bd. of Liberty Cty., 363 So.2d 144, 145 (Fla. 1st DCA 1978) (“One purpose of the government in the sunshine law was to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance/’), aff'd, 398 So.2d 427 (Fla. 1981). Carlson relies primarily on Silver Express Company v. District Board of Lower Tribunal Trustees of Miami-Dade Community College, which explained that “advisory committees which have offered up structured recommendations ... at least those recommendations which eliminate opportunities for alternative choices by the final authority, or which rank applications for the final authority [ ] have been determined to be agencies governed by the Sunshine Law,” 691 So.2d 1099, 1101 (Fla. 3d DCA 1997). But the Evaluation Team (or more accurately, its individual members) neither ranked the competitors, nor excluded any from consideration of the ultimate decider, the Negotiation Team. Cf. Knox v. Dist. Sch. Bd. of Brevard, 821 So.2d 811, 314 (Fla. 5th DCA 2002) (distinguishing Silver Express and noting that “[although the team made recommendations, all the applications went to the superintendent and he decided which applicants to interview and nominate”). Therefore, even if Silver Express bound us, it would not help Carlson,.

Nor does Leach-Wells v. City of Bra-denton—the second, case Carlson cites on this point—help. 734 So.2d 1168 (Fla. 2d DCA 1999). In Leach-Wells, the court held that if a committee’s task “was ‘formal action,’ _ a meeting was required.” Id. at 1171. It went on to conclude that “if a meeting was required and none was held, a Sunshine Law violation occurred.” Id. But here, the Evaluation Team (or more accurately, its individual members) took no formal action. Cf. § 286.011(1), Fla. Stat. (2017) (providing that “no resolution, rule, or‘formal action” is valid “except as taken or made at [a required public] meeting”). The Evaluation Team had no obligation to conduct a meeting.

We -therefore, conclude that the trial court correctly granted summary judgment as to Carlson’s Evaluation-Team claims. Carlson’s Negotiation-Team claims present more difficult questions, and we turn to those next.

B.

Section 286.0113 exempts from public meeting requirements “[a]ny portion of a team meeting at which negotiation strategies are discussed.” § 286.0113(2)(b)(2), Fla. Stat. But the exempted meetings do not forever remain out of public view: “A complete recording shall be made of any portion of an exempt meeting," id. § 286.0113(2)(c)(l), and the recordings become publicly available at “such time as the agency provides notice of an intended decision or [ ] 30 days after opening the bids, proposals, or final replies, whichever occurs earlier,” id. § 286.0113(2)(c)(2). -

Because the parties agree that the Negotiation Team is subject to the Sunshine Law generally, we need only consider whether certain meetings of the Negotiation Team fit into this “negotiation strategies” exception. To decide that, we must figure out the exception’s reach.

1.

The basic point of the statutory exception is obvious enough: the Legislature sought to ensure that state actors responsible for negotiating contracts didn’t have their negotiation plans made public until the negotiations were through. Indeed, in the public justification, the Legislature explained that “[t]eam members often meet to strategize about competitive solicitations and the approach to take as part of the evaluation process. Without the public meeting exemption .,, the effective and efficient administration of the competitive solicitation process would be hindered.” Oh. 2011-140, § 3, Laws of Fla. But while the exception’s rationale may be obvious, the point at which any meeting enters or exits the “portion ... at which negotiation strategies are discussed” is not. That is part of what makes this a difficult case.

The Department—and to a lesser extent SMI—argue that the statute covers the entirety of any meeting at which “negotiation strategies are discussed.” They contend that “any portion” means “every portion”—and that the Legislature therefore enacted a broad exemption reaching even meeting “portions” having nothing to do with procurements. According to this argument, the phrase “at which negotiation strategies are discussed” modifies “meeting,” not “portion.”

There is much to like about this proposed interpretation, not the least of which is that it would avoid any need to decide what “portions” of any particular meeting were covered. And to be sure, this interpretation enjoys some textual support. For one thing, other parts of the subsection refer to the “exempt meeting”—not “the exempt portions of the meeting,” see, e.g., § 286.0113(2)(c)(2), Fla. Stat. (noting recording of “the exempt meeting” is exempt from chapter 119); id. § 286.0113(2)(e)(1) (“No portion of the exempt meeting may be held off the record.”). Plus, the Legislature used a seemingly more restrictive phrase in another part of the same statutory section, exempting “[í ]⅛<¾⅜ portion of a meeting” that would betray information about security systems. Id. § 286.0113(1) (emphasis added). We typically view the Legislature’s use of varied language in the same statute as a sign the Legislature intended varied things. See DPRB v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984) (“The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.”); see also A. Scalia & B, Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (“[Wjhere the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea”). This rule of interpretation is far from absolute, though, .primarily because it “assumes a perfection of drafting that, as an empirical matter, is not often achieved.” A. Scalia & B¡ Garner at 170. For whatever reasons, “drafters more than rarely use the same word to denote different concepts, and often ,.. use different words to denote the same concept.” Id. Nonetheless, we cannot ignore the fact that in the same statutory section, the Legislature chose two separate phrases: “[t]hat portion of a meeting that would reveal ...” and “[a]ny portion of a meeting at which .... ” § 286.0113(1), (2)(b),

But despite colorable arguments supporting the Department’s interpretation, we conclude that the statute’s “any portion” language limits the exemption to portions of meetings—the portions “at which negotiation . strategies are discussed.” Other portions—those in which negotiation strategies are not discussed— are not exempt. We reach this conclusion for three main reasons. First, interpreting the exception to cover entire meetings, when only portions included negotiation-strategy discussions, would render the phrase “any portion” meaningless. We try to avoid statutory interpretations that render meaningless any words the Legislature chose. See Fla. Police Benevolent Ass’n v. DACS, 574 So.2d 120, 122 (Fla. 1991).

Next, interpreting the exception to cover entire meetings would raise potential constitutional issues. See State v. Giorgetti, 868 So.2d 512, 518 (Fla. 2004) (noting “canons of statutory construction requiring us to interpret the statutes in a way as to avoid any potential constitutional quandaries”). The Legislature’s authority to exempt meetings is limited; any exemption “shall be no broader than necessary to accomplish the stated purpose of the law.” Art. I, § 24(c), Fla. Const. By interpreting the statute as we do, we avoid the potential constitutional quandary of whether the Legislature’s stated justification for the exemption would justify exempting entire meetings when only a small portion of the meeting requires secrecy.

Finally, and perhaps most importantly, our interpretation follows the most natural reading of the statute. Although generally “any” means “all,” see, e.g., United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997), that does not mean “any portion of a meeting at which negotiation strategies are discussed” means “the entirety of any meeting at which negotiation strategies are discussed.” This is because the phrase “at which negotiation strategies are discussed” limits the word “portion”—not the word “meeting.” In other words, the statute does exempt any (and indeed all) meeting “portions” that include negotiation-strategy discussions. But it does not exempt all portions of any meeting, so long as that meeting included those discussions. This is the most natural and logical reading of the statute.

2.

Having decided that the statute exempts only portions of meetings, we must now consider Carlson’s claim that the Negotiation Team unlawfully closed nonexempt portions. On this point, we consider only four of the twenty-two meetings because Carlson did not seek relief as to the other eighteen.

The first meeting at issue was in January of 2014. In that meeting, the Negotiation Team selected Xerox and SMI to participate in the negotiations phase. Although Carlson contends there were unresolved facts regarding this meeting, we see none that would preclude the trial court’s entry of summary judgment. There was evidence that the Negotiation Team met to evaluate bids and determine which (if any) bidders the team would negotiate with. Negotiation strategies encompass the decisions on which bidders will participate in negotiations, so the portions of the meeting in which the Negotiation Team considered those issues were exempt. Carlson did not produce any evidence to create a genuine question of material fact about whether the meeting also included a discrete portion not including discussion of negotiation strategies.

In the second pertinent meeting, held in February 2014, Evaluation Team members and the Negotiation Team discussed Xerox’s and SMI’s earlier demonstrations. They discussed, among other things, what additional information they would seek from the bidders. These activities are also encompassed within the negotiation-strategies exemption, and Carlson did not submit evidence that could defeat summary judgment on this point.

The third pertinent meeting was in April 2014. In that one, the Negotiation Team decided to pursue negotiations with SMI and not with Xerox. The team also decided to seek a “Best and Final Offer” from SMI. Both of these constituted strategic negotiation decisions, and the statutory exemption covers discussions about those decisions. Again, the summary judgment record does not demonstrate a disputed issue of material fact, and again the trial court was correct to grant summary judgment as to this meeting.

The fourth and final meeting at issue was on May 16, 2014. At that meeting, the Negotiation Team deliberated about whether SMI should win the contract award. At some point during that private meeting, the Negotiation Team decided that SMI should win, and the team members formalized their decision—still in private session—by signing an award memorandum. After that meeting, the Department announced that SMI had prevailed and that Xerox had not.

Unlike with the other three meetings, the parties agree that there are no disputed issues of material fact as to the May 16 meeting. Carlson therefore presents a purely legal question. He contends that because the Negotiation Team selected SMI, it necessarily took action's beyond “negotiation strategies.” In other words, Carlson argues, voting to select SMI cannot be a “negotiation strategy.” But the question is not whether a vote constitutes a “negotiation strategy”; the question is whether, as a matter of law, a vote cannot be within that “portion of a team meeting at which negotiation strategies are discussed,” § 286.0113(2)(b)(2), Fla. Stat.

If the Negbtiation Committee’s vote necessarily constituted its own “portion” of the May 16 meeting, we would reverse. A “portion” is some part that is less than the whole, and the vote itself constituted less than the whole meeting. Indeed, in some sense, every spoken word at every meeting could constitute its own portion. But we cannot read “portion,” as used in the statute, so narrowly. Instead, the exempted “portion” includes not only the negotiation-strategies discussions themselves, but also meeting activities inextricably intertwined with those discussions.

The May '16 meeting included negotiation-strategies discussions and the ultimate award' decision. These were intertwined activities without a clear dividing line between them. Until the last signature appeared on the memorandum, until the decision awarding the contract to SMI was formalized, the Negotiation Team had several options before it. It could have declared SMI was the winner (which it did); it could have sought additional concessions from SMI (a negotiation strategy); it could have reopened competing negotiations with Xerox (another negotiation strategy); or it could have pulled the plug on the whole thing, starting a new-process seeking a more favorable outcome (yet another negotiation strategy).

It is impossible to separate the discussions that culminated in the formal decision from the decision itself. At the same time the Negotiation Team was deciding to award to SMI, it was deciding not to pursue available competing options. Had it ultimately pursued one of those other options—and had it done so at a public meeting—-it would have' continued in the procurement process without'the protections the exemption provides. For example, had the Negotiation Team decided SMI’s final offer was inadequate and that the team should initiate negotiations with Xerox— and had it done so at a public meeting— both Xerox and SMI would have partid-pated m further negotiations knowing the Negotiation Team’s views of SMI’s proposal. Yet the exemption provides protections “until such time as the agency provides notice of an intended decision.” § 286.0113(2)(c)(2), Fla. Stat.; see also Oh. 2011-140, § 3, Laws of Fla. (noting public need for exemption to promote “effective and efficient administration of the competitive solicitation process”).

We cannot' conclude that the May 16 vote was discrete and separable from the discussions that surrounded it. We therefore cannot conclude that the vote was, as a matter of law, not within the “portion of [the] team meeting at which negotiation strategies are discussed.”

C.

.Last, we consider Carlson’s arguments about the failed audio recordings. As already noted, the statute required the Department to make a “complete recording” of exempt portions. § 286.0113(2)(c)(2), Fla. Stat. (2017). The Department made audio recordings of its meetings, and those recordings were “exempt until such time as the agency, provide[d] notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever occur[ed] earlier.” Id. § 286.0113(2)(c)(2). When Xerox requested copies, the Department discovered that some recordings were inaudible. Some inaudible recordings were electronically recovered, but the recordings of the April 29 and May 16 meet; ings were never fully recovered.

Carlson contends that the Department’s failure to provide audible recordings constitutes a Sunshine Law violation. The Department responds that no recordings were even necessary—that it complied with its obligation to make a. “complete recording” by preparing a meeting agenda and.taking “written notes, drafted at the time of. the meeting [that] accurately reflect discussions held at the meeting.” We reject the Department’s argument because a “complete recording” requires more than an agenda and meeting notes. A “complete recording” gives the public access to exactly what happened at the exempt portion; someone’s notes do not.

Here, the Department made an audio recording, but somewhere along the line suffered a technology faitee that precluded Xerox (and Carlson and anyone else seeking access) from learning exactly what happened. The failure affected only two of the twenty-two Negotiation Team meetings, and Carlson makes no allegations of bad faith or anything beyond the technological misfortune that sometimes accompanies modern life. Under these circumstances, we agree with the trial court that the Department’s technological inability to recover the two' meetings’ recordings do not constitute a statutory violation.

AFFIRMED.

WINOKUR and JAY, JJ., CONCUR.

      . Courts commonly refer to Section 286.011, Florida Statutes, as the “Government in the Sunshine Law.” E.g., Sarasota Citizens For Responsible Gov’t v. City of Sarasota, 48 So.3d 755, 762 (Fla. 2010); Canney v. Bd. of Pub. Instruction of Alachua County, 278 So.2d 260, 262 (Fla. 1973).

      . If the .agency rejects all bids and starts over, the recordings are exempt until the agency completes the subsequent process. Id. §' 286.0113(2)(c)(3). The exemption, though, will not last “longer than 12 months after the initial agency notice rejecting all bids, proposals, or replies.” Id.

      , Florida’s constitution requires the Legislature to “state with specificity the public necessity" thát justifies any enacted exemption. Art. I, § 24(c), Fla. Const. Carlson has not challenged the Legislature’s constitutional au-thorlty to enact this exemption,

      . In another provision, though, the Legislature has referred to an "exémpt portion of an exempt meeting,” §' 1004.055(2), Fla. Stat., suggesting that the Legislature’s use of “exempt meeting” does not always refer to a meeting that is entirely exempt.

      . Incidentally; section 286.0113(2)(b)(l), as originally enacted (then numbered 286.0113(2)(a)) exempted: "A meeting at which a negotiation with a vendor is conducted ....” Ch. 2006-284, § 2, Laws of Fla. In 2011, the Legislature added the words "Any portion of” at the same time it established the negotiation-strategies exemption with the same language. Ch. 2011-140, § 2, Laws of Fla. The Legislature’s specific addition of "any portion of” where it did not previously exist further shows we should accord those words meaning.