author: THOMPSON, Presiding Judge.

text:
    EX PARTE John REYNOLDS. (In re Paula Reynolds v. John Reynolds).
    2150414.
    Court of Civil Appeals of Alabama.
    May 20, 2016.

      Deborah Gregory, Birmingham, for petitioner.
    Jason Knowles of Knowles <& Sullivan, LLC, Gadsden, for respondent.
   THOMPSON, Presiding Judge.

John Reynolds (“the father”) petitions this court for a writ of mandamus directing the Etowah Circuit Court (“the trial court”) to dismiss a petition Paula Reynolds (“the mother”) filed in the trial court in which she seeks to enforce a judgment of the Superior Court of Fulton County, Georgia, that divox-ced the parties and, among other things, ordered the father to pay postminority educational support for the parties’ child (“the child”).

According to the materials submitted in support of and in opposition to the petition for a writ of mandamus, the Superior Court of Fulton County, Georgia, entered a judgment divorcing the parties on April 25, 1997 (“the Georgia divorce judgment”). The child was nine months old at the time the Georgia divorce judgment was entered. The Georgia divorce judgment, which was based on the parties’ settlement agreement, provided that the father would pay the expenses for the child in connection with the child’s obtaining a four-year college or university degree or training at a vocational or trade school.

The father now resides in Alabama. On August 25, 2015, when the child was in the process of enrolling in an Alabama community college, the mother filed a petition in the trial court seeking to enforce the provision of the Georgia divorce judgment in which the father agreed to pay postminority educational expenses. In her petition, the mother stated: “A copy of the Georgia [divorce] judgment is attached hereto (a certified copy will be filed soon).” A copy of the Georgia divorce judgment and a copy of the parties’ settlement agreement were attached to the mother’s petition; however, the copy of the Georgia divorce judgment attached to the petition does not appear to be a certified copy.

The father filed a motion to dismiss the mother’s petition on September 9, 2015, asserting that the mother had failed to follow the requirements for registering the Georgia divorce judgment as set forth in former § 30-3A-602, Ala.Code 1975, a part of Alabama’s former codification of the Uniform Interstate Family Support Act (“the UIFSA”), former § 30-3A-101 et seq., Ala.Code 1975, which has been repealed and replaced by § 30-3D-101 et seq., Ala.Code 1975, effective June 2, 2015. As a result, the father argued, the trial court did not obtain subject-matter jurisdiction over the mother’s petition. Section 30-3D-602, which replaced former § 30-3A-602, provides, in pertinent part:

“(a) Except as otherwise provided in Section 30-3D-706,[ Ala.Code 1975,] a support order or income-withholding order of another state or a foreign support order may be registered in this state by sending the following records to the appropriate tribunal in this state:
“(1) a letter of transmittal to the tiibunal requesting registration and enforcement;
“(2) two copies, including one certified copy, of the order to be registered, including any modification of the order;
“(3) a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(A) the obligor’s address and Social Security number;
“(B) the name and address of the obligor’s employer and any other source of income of the obligor; and
“(C) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) except as otherwise provided in Section 30-3D-312,[ Ala.Code 1975,] the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.”

On September 10, 2015, the mother filed a response to the father’s motion to dismiss. In her response, the mother asserted, among other things, that the copy of the Georgia divorce judgment that was attached to her petition “[was] certified, although it may not appear on AlaFile to be because the certification is on the back of two pages.” The trial court entered an order on October 30, 2015, allowing the mother seven days “to cure any technical deficiencies in the filing/registration of [her] petition.” That same day, the mother filed copies of the Georgia divorce judgment and the parties’ divorce settlement agreement with the additional pages containing the certifications.

The father filed a renewed motion to dismiss on December 3, 2015, asserting that the mother’s petition was still deficient, despite her having filed the certification page of the Georgia divorce judgment. On January 4, 2016, the mother filed her affidavit, which addressed some of the information the father had pointed out as missing from her petition. The trial court denied the father’s renewed motion to dismiss on January 5, 2016. The father filed his petition for a writ of mandamus with this court on February 15, 2016.

“ ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995)).

In his petition, the father argues that the mother did not strictly comply with § 30-3D-602(a). The father asserts that the mother failed to specifically request enforcement of the Georgia divorce judgment; that the certified copy of the Georgia divorce judgment was not attached to the mother’s petition as originally filed; that the mother failed to include a sworn statement regarding the amount of any child-support arrearage; and that the mother’s petition did not. contain certain information required to be included by § 30-3D-602(a)(4). Because of those deficiencies, the father argues, the trial court lacked subject-matter jurisdiction over the mother’s petition. “[A] lack of subject-matter jurisdiction may be raised at any time, and ... the question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala.2000).

In her answer to the father’s mandamus petition, the mother contends that the father is asking the courts of this state “to engage in a harsh, hyper-technical interpretation” of the requirements for registration of a foreign support or income-withholding order as set forth in § 30-3D-602(a). She argues that, contrary to the father’s assertions, her filings were not deficient. She states that, despite a “scrivener’s error” in .her petition saying that a certified copy of the Georgia divorce judgment would be filed with the trial court later, in fact, a certified copy of the Georgia divorce judgment was filed with the petition. However, the mother said, the certification stamp appeared on the back of a page that had been electronically filed and, therefore, was not visible. The mother also points out that, because no child-support arrearage existed at the time she filed her petition seeking to enforce the Georgia divorce judgment, there was no need to include language1 regarding “any arrearage” in her sworn petition. Furthermore, the mother argues, § 30-3D-602(a)(4) requires inclusion, “if known,” of certain personal information, such as the obligor’s Social Security number, employer, or other sources of income or the description or location of certain property of the obligor. The mother contends that, in her petition, she provided all the relevant information of which she' was aware, and, therefore, she asserts, she was in compliance with the registration statute.

In previous cases, this court, has held that “strict compliance” with the UIFSA registration procedures is required to confer subject-matter jurisdiction upon an Alabama circuit court to enforce or to modify a foreign child-support judgment. See Herzog v. Stonerook, 160 So.3d 340, 346 (Ala.Civ.App.2014); Ex parte Ortiz, 108 So.3d 1046, 1050 (Ala.Civ.App.2012); and Ex parte Davis, 82 So.3d 695, 701 (Ala.Civ.App.2011). Although one must proceed under § 30-3D-602(a) when seeking to enforce the child-support provisions of a foreign judgment or income-withholding order, this court is no longer of the opinion that strict compliance with that statute is required. No language in the statute itself mandates strict compliance with its provisions, and our previous opinions offer no analysis or discussion as to why strict compliance should be required.

Research has revealed that Alabama is the only state that requires “strict compliance” with the UIFSA when registering a foreign judgment. Other jurisdictions that have considered the issue have determined that “substantial compliance” with the registration requirements is sufficient. For example, in Twaddell v. Anderson, 136 N.C.App. 56, 60, 523 S.E.2d 710, 714 (1999), the Court of Appeals of North Carolina wrote that because the UISFA was “ ‘promulgated and intended to be used as [a] procedural meohanism[ ] for the establishment, modification, and enforcement of ” child-support obligations, “substantial compliance” with the registration requirements under the UIFSA “will suffice to accomplish registration of the foreign order.” (Quoting Welsher v. Rager, 127 N.C.App. 521, 524, 491 S.E.2d 661, 663 (1997).) In In re Marriage of Owen & Phillips, 126 Wash.App. 487, 496, 108 P.3d 824, 828-29 (2005), the Court of Appeals of Washington held that substantial compliance with procedural registration requirements under the UIFSA satisfied the statute governing filing an out-of-state support order. In reaching its holding, the Court of Appeals of Washington explained:

“Public policy supports our determination that substantial compliance is the appropriate standard where there is no prejudice to the obligor. UIFSA encourages parties to register valid child support orders, and the procedural safeguards are designed to minimize the risk of prejudice to the obligor. UIFSA does not support a policy that punishes support recipients for minor, harmless procedural errors in registration. [The respondent] does not dispute the validity of the Kansas order or that he owes back support. Holding that the registration was invalid under these circumstances would undercut UIFSA’s purpose.”

In re Marriage of Owen & Phillips, 126 Wash.App. at 497-98, 108 P.3d at 829.

Similar holdings have been reached in Mississippi, see Nelson v. Halley, 827 So.2d 42, 46 (Miss.Ct.App.2002) (holding that, although some statutorily required information for registration of a foreign judgment under the UIFSA was missing, the foreign judgment “had adequately been filed”); Texas, see Kendall v. Kendall, 340 S.W.3d 483, 500 (Tex.App.2011) (permitting substantial compliance with the procedural registration requirements set forth in the UIFSA); and Nebraska, see Lamb v. Lamb, 14 Neb.App. 337, 350, 707 N.W.2d 423, 435 (2005)(“Substantial compliance with the registration requirements [of the UIFSA] is expected.”).

Requiring one seeking to enforce a foreign judgment to be in substantial compliance, as opposed to strict compliance, with the registration requirements of the UIFSA is the better-reasoned position. Requiring strict compliance with § 30-3D-602(a) produces a harsh result, especially considering that the subject matter at issue in cases in which the UIFSA applies is child support. The “UIFSA was created to identify ways to improve the efficiency and effectiveness of interstate child support enforcement by addressing interstate cases in a uniform manner.” Ala. Admin. Code (Dep’t of Human Res.), Rule 660-3-10-01. Requiring strict compliance with the registration statute does not further the purpose of the UIFSA. See In re Marriage of Owen & Phillips, supra.

This case, in which the mother is not alleging that there is any past-due child support and is not attempting to enforce an income-withholding order, illustrates the undue harshness of holding that the trial court, did not acquire subject-matter jurisdiction to enforce the Georgia divorce judgment merely because the mother did not explicitly state that there was no child-support arrearage or provide other information set forth in § 30-3D-602(a)(4), such as the father’s Social Security number, place of employment, or other sources of income or a description and location of the father’s property within the state that is not exempt from execution. The information requested in § 30-3D-602(a)(4) is not relevant under the circumstances of this case. Moreover, we note that § 30-3D-602(a)(4) requires that certain information be included in the registration material's only “if known.” It would not be logical to determine that a trial court obtains subject-matter jurisdiction in an instance when a petitioning parent does not know certain information, for example, the other parent’s place of employment, and therefore omits such information when petitioning to register a foreign judgment, but to determine that a trial court does not obtain subject-matter jurisdiction'when1 a petitioning parent is aware' of such information but does not include it under circumstances, like those in this case, when it is not relevant. Subject-matter jurisdiction should not be dependent on such vagaries.

Here, the mother filed a sworn petition in which she stated that'the child was “in the process of enrolling” in a community college where he hoped to study for one year before transferring to Auburn University. The mother also stated that she needed financial assistance from the father to pay for the child’s college education. She indicated that, pursuant to the Georgia divorce judgment, the father was required to pay

“all costs of [the child’s] college education over and above scholarships, grants, work study programs, or accounts or funds ear-marked for the child’s education, including board, tuition, living and clothing allowance, and a reasonable amount for books, lab fees, student assessments, and similar items, in connection therewith to any school chosen by [the child].”

The mother went on to recognize that the father’s financial responsibility for the child’s college education was limited to the current rates applicable at Georgia public universities. Finally, the mother stated that the father had failed or refused to comply with the provisions of the Georgia divorce judgment.

In her petition, the mother then explicitly requested that the father “pay for, or reimburse the mother for, [the child]’s books, tuition, and related fees, and a living and clothing allowance” while the child attended community college and “to pay for [the child]’s books, tuition, student fees, and related fees, room, board, and a living and clothing allowance when [the child] attends Auburn University.” At the time the mother filed her petition and attempted to register the Georgia divorce judgment, the mother could not have submitted a sworn statement seeking a specific amount of “any arrearage” because a child-support arrearage did not exist.

The language the mother used in her sworn petition is sufficient to indicate that she is seeking to register the Georgia divorce judgment and to enforce the post-minority-support provisions of that judgment. The petition also puts the father on notice as to the specific relief the mother is seeking. We do not see how the father would be unduly prejudiced by the mother’s “harmless procedural errors” in registering the judgment. In re Marriage of Owen & Phillips, 126 Wash.App. at 498, 108 P.3d at 829.

Furthermore, the mother filed a copy of the Georgia divorce judgment and supplemented her petition with a certified copy, on which the certification stamp is visible, before the trial court took any action toward enforcing the Georgia divorce judgment. The mother should not be forced to begin anew the registration process because the electronically filed version of the Georgia divorce judgment did not originally display the back of a page on which the certification stamp was located.

For the reasons set forth above, this court now overrules the line of cases requiring strict compliance with the registration requirements found in § 30-3D-602(a) and holds, instead, that substantial compliance with those requirements is sufficient. Further, under the facts of this case, we conclude that the mother’s petition was in substantial compliance with the registration requirements and, thus, that the trial court does have subject-matter jurisdiction over proceedings regarding the enforcement of the Georgia divorce judgment. Accordingly, the father’s petition for a writ of mandamus is denied.

PETITION DENIED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . Because the mother's petition in the present case was filed after June 2, 2015, the current version of the UIFSA applies. We note, however, that the language of former § 30-3A-602(a) is substantially identical to the language of § 30-3D-602(a), Ala.Code 1975. Thus, we consider those cases interpreting former § 30-3A-602(a) to be instructive with regard to the operation of § 30-3D-602(a). To the extent the father’s and the mother's arguments, whether before the trial court or before this court, refer to § 30-3A-602(a), we interpret those arguments as referring to § 30-3D-602(a), and references in this opinion to the UIFSA are references to the correct version of the UIFSA.

      . "AlaFile” is an Internet application that allows users to file and receive service copies of court documents electronically. AlaFile User Manual, p. 4 (2012).


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Tania L. HILL v. Dmetrius HILL.
    2150289.
    Court of Civil Appeals of Alabama.
    May 20, 2016.

      Linda W.H. Henderson, Tuskegee Institute, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

Tania L. Hill (“the mother”) appeals from a judgment entered by the Lee Circuit Court (“the trial court”) dismissing her petition to modify a divorce judgment entered by the trial court in which she sought an order to compel Dmetrius Hill (“the father”) to contribute to the payment of the college expenses of their child, Ka-misha Hill (“the child”).

The trial court entered a divorce judgment incorporating an agreement of the parties on March 18, 2013. Paragraph 14 of the divorce judgment provides: “Post-majority [sic] education support for the child’s college expenses is reserved to a later appropriate time.” On September 21, 2015, two days before the child turned 19 years old, the mother filed a petition to modify the divorce judgment to establish the amount each parent would contribute to the child’s college expenses. After the father did not timely answer the petition, the mother applied to the clerk of the trial court for an entry of default on November 17, 2015. By a judgment entered on November 18, 2015, the trial court denied the application, stating, in pertinent part:

“The Court cannot grant through a Default Judgment relief which it has no legal authority to grant otherwise.
“The Divorce Decree entered by this Court on March 18, 2013 was the result of an agreement reached by the parties after the trial of the parties’ divorce had begun. The Divorce Decree was a recital of that agreement reached by the parties, each of whom were represented by counsel at the time and on the day in question.
“The Divorce Decree states in Paragraph 14 that ‘Post-minority educational support for the child’s college expenses is reserved to a later appropriate time.’ This being the only mention of post-minority educational expenses therein, the Decree as written contains no promise or agreement by the [father] to pay such expenses in the future.
“In Ex parte Christopher, [145 So.3d 60 (Ala.2013),] the Alabama Supreme Court ruled in October of 2013 that courts could no longer force non-custodial parents to provide post-minority educational support, except for cases where orders to do so were already in place. The Divorce Decree in this case, entered and made final prior to the decision in Ex parte Christopher, is not an orde^-for the [father] to pay post-minority educational support. At most, it could be construed as an order that the [father] may consider doing so at ‘a later appropriate time.’ Since this Court cannot force the [father], at this ‘later appropriate time,’ to begin negotiations or to enter into any sought-after agreement to pay for post-minority educational expenses, there is effectively no post-minority educational support provision in the Divorce Decree that this Court can thus enforce.
“As such, there is no relief to be granted on this subject in [the mother’s] Petition to Modify.”

The trial court dismissed the action. The mother timely appealed.

In Ex parte Christopher, 145 So.3d 60 (Ala.2013), our supreme court overruled Ex parte Bayliss, 550 So.2d 986 (Ala.1989), which had construed Ala.Code 1975, § 30-3-1, as authorizing an award of educational support for children over the age of majority. In Ex parte Christopher, the supreme court ruled that § 30-3-1 provides authority only for educational support of minor children. The court held that “our decision in the instant case will not disturb final postminority-educational-support orders entered before the date of this decision.” 145 So.3d at 71, In this case, no postminority-educational-support order was entered before the date of the Ex parte Christopher decision, i.e., October 4, 2013. Paragraph 14 of the divorce judgment does not order the father to pay postminority educational support for the child, but only reserves that issue for a later time.

Before Ex parte Christopher, trial courts commonly included a reservation of jurisdiction over the issue of postminority educational support that was not ripe for adjudication. See, e.g., Langdale v. Baty, 673 So.2d 456 (Ala.Civ.App.1996). In Britt v. Britt, 684 So.2d 1325 (Ala.Civ.App.1996), this court determined that a reservation of jurisdiction over postminority educational support does not adjudicate the issue in any respect. No Alabama appellate court has ever construed a reservation of jurisdiction over postminority educational support as a partial adjudication of liability, which leaves open only the question of the amount to be awarded. Because, in the present case, in Paragraph 14 of the parties’ divorce judgment, the trial court “reserved” jurisdiction to address the issue of postminority educational support, we hold that the trial court would have had no ground to consider parol evidence to explicate or vary the terms of the divorce judgment, as the mother impliedly argues in this case. See Cain v. Saunders, 813 So.2d 891 (Ala.Civ.App.2001).

In her petition, the mother alleged that, at the time of the divorce, the child was a 16-year-old sophomore in high school with a good academic record. The mother further alleged that she and the father had anticipated that the child would go to college but that they had not known at that time which college she would attend or the costs of attendance, so they had agreed to place Paragraph 14 in the divorce judgment. However, the mother did not allege that the parties had reached an agreement that the father would, in fact, pay any postminority educational support, which agreement could be enforced regardless of Ex parte Christopher. See Ex parte Smith, 196 So.3d 284 (Ala.Civ.App.2015). She alleged only that the parties had agreed to include Paragraph 14 in the divorce judgment, which, as stated, does not bind the father to pay postminority educational support for the child.

Given the foregoing, we conclude that, in filing her modification petition, the mother invoked the jurisdiction of the trial court to modify the divorce judgment to order the father for the first time to pay postminority educational support. The trial court correctly ruled that it could not grant the mother the relief she requested. The mother does not argue that the trial court erred in denying her application for an entry of default despite the failure of the father to answer the petition or that the trial court erred in dismissing the petition sua sponte. See Galaxy Cable, Inc. v. Davis, 58 So.3d 93, 99 (Ala.2010) (“Failure by an appellant to argue an issue in its brief waives that issue and precludes it from consideration on appeal.”). We have rejected the mother’s only arguments against the denial of the application and the judgment of dismissal. Therefore, the judgment is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, THOMAS, and DONALDSON, JJ., concur.

      . We note that the mother filed her modification petition during the minority of the child; however, she does not argue that she was stating a claim that the child had accumulated college expenses during her minority that the father should pay.

      . The mother also sought to enforce a prior income-withholding order for child support, which claim was dismissed as well.


author: BURKE, Judge.

text:
    Ocie Lee LYNCH v. STATE of Alabama.
    CR-14-0588.
    Court of Criminal Appeals of Alabama.
    March 18, 2016.

      Johannes T. Rech II, Montgomery, for appellant.
    Luther Strange, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   BURKE, Judge.

Ocíe Lee Lynch was convicted of six counts of capital murder: four counts of murder for hire or pecuniary gain, see § 13A-5-40(a)(7), Ala.Code 1975; and two counts of murder during a burglary, see § 13A-5^0(a)(4), Ala.Code 1975. Thereafter, a sentencing hearing was held and the jury returned an advisory verdict recommending, by a vote of 10 to 2, the death penalty. A separate sentencing hearing was held before the trial judge, who sentenced Lynch to life imprisonment without the possibility of parole.

On July 27, 2011, at around 7:00 in the evening, Officer Jason Jenkins, of the Tar-rant City Police Department, was called to the scene of a burning vehicle at property owned by CSX Railroad. A set of keys was found near the burned vehicle. Some papers that were in the trunk did not fully burn and contained sufficient information to help officers determine that the vehicle belonged to Robert Blake Lazenby, who resided in Sylacauga. An officer was sent to do a “welfare check” on Lazenby, which he did and reported nothing unusual, but a second check on his residence revealed that the back door was opened and the glass had been broken out of it. (Supp. R. 300.) A search of the home exposed drawers pulled out, a chair knocked over, general disarray, and a great deal of blood in the kitchen. The victim was discovered in the corner of a breakfast nook by a police officer, who recognized him as a having been an attorney who practiced law in Talladega.

During the investigation of Lazenby’s murder, the Sylacauga Police Department received a tip from Cathy McCall, a sister of Lynch’s accomplice Calvin Haynes, concerning the offense. Investigator Mike McBurnett with the district attorney’s office met with McCall in Birmingham on January 10, 2012. McCall turned over a cellular telephone to Investigator McBur-nett, who made a computer disk (CD) of a conversation that had been recorded on the phone. A transcript of the conversation was also made, as well as a transcript of McCall’s meeting with Investigator McBurnett when she gave him the phone.

Calvin Haynes, an accomplice, testified that he had agreed to testify for the State in return for a sentence of life imprisonment. Haynes testified that he met with Lynch several days prior to the offense and, after having spoken to Earnest Files, Jr., Haynes told Lynch that Files wanted Lazenby killed. Haynes said that Lynch agreed to kill Lazenby and asked how much money he would be paid. According to Haynes, Files was contacted, and he agreed to pay $45,000 but stated that he did not have the total amount at that time. Lynch agreed to take part of the payment in the form of drugs, but Files stated that he did not have any drugs; he had only $2,000 at the time. Lynch and Haynes took the $2,000 and bought drugs. Files did not state why he wanted Lazenby killed. Files showed Haynes Lazenby’s house and Haynes gave Lynch the address.

Haynes testified that, on the day of the offense, Haynes took Lynch, Charles Hendrix, and two other people to get an automobile that belonged to one of the men. Haynes testified that Lynch was armed with a .38 caliber handgun. Lynch, Hendrix, and the other two people, including Lovell Jones, drove to Lazenby’s house to drop off Lynch and Hendrix so that they could wait for Lazenby to come home. Lovell Jones testified that she rode with them to Lazenby’s house and that Lynch and Hendrix were dropped off because they were supposed to kill a man. She stated that Lynch told Hendrix that he would kill the man and that Hendrix “didn’t have to do nothing.” (R. 481.) Haynes testified that, when Lynch returned, he told Haynes that he had shot Lazenby in the face through the glass in the door when Lazenby opened the door and that he had gone inside. According to Haynes, Lazenby asked for an ambulance, and Lynch had shot him again and had cut his throat. According to Haynes, Lynch had further stated that he took the victim’s wallet, cellular telephone, sunglasses, and truck. Haynes testified that he and Lynch then went to Tarrant City to burn the victim’s truck. Lynch threw the gun in a creek and burned his clothes because they were bloody.

Later, Lynch, Haynes, Files, and a few others were watching television together and saw a news account of the murder. Haynes said that Files “celebrated” and promised Lynch and Haynes the rest of the money; however, he never paid them any more money.

McCall, Haynes’s sister, testified that at the time of the offense Lynch was living in Birmingham with her, her children, and her uncle. She had known him for four or five years. On the evening of the murder, Lynch, Haynes, Hendrix, and Files were at McCall’s house, watching the news; a segment concerning the burning of Lazen-by’s vehicle in Tarrant City was broadcast. McCall testified that she heard Lynch state that he wanted his $85,000 for having committed the murder.

McCall testified that she had several conversations with Lynch at her home concerning the offense. Initially, Lynch told McCall that he had gone to Sylacauga with Haynes, but that Haynes had gotten scared and had turned around because he did not want “to do it.” (R. 327.) Lynch told McCall that he had killed Lazenby. He later told her that Haynes and he had gone to Sylacauga but had turned around and had not committed the murder. Finally, Lynch told her that he had gone to Sylacauga with Hendrix and the two had gone to Lazenby’s house. Lynch stated that Lazenby had shut a glass door in Hendrix’s face so Lynch had shot through the glass and hit the victim in his forehead. Lynch and Hendrix then entered the house, and Hendrix took a knife from a kitchen drawer and tossed it to Lynch. Lynch stabbed Lazenby, who pleaded for his life and begged him to call an ambulance. Lynch and Hendrix left the scene in Lazenby’s truck and threw the gun in a creek. Lynch told McCall that they took Lazenby’s truck to Tarrant City and had set it on fire.

Lynch talked to McCall about the offense on an occasion during which she used her cellular telephone to record the conversation. Lynch, McCall, and her uncle were present during the recording. She later gave the phone to Investigator McBurnett. She and her uncle verified at trial that the CD containing the recording from her cell phone and the transcript of that recording accurately reflected what they had heard during the conversation.

The forensic pathologist testified that Lazenby was alive and aspirating blood following three gunshots and that he was stabbed twice in the side of his neck. He was shot twice in the chest postmortem. He died from a stab wound in his neck.

Lynch did not introduce the testimony of any witnesses.

I.

Lynch argues that his motion for a mistrial based on alleged prosecutorial misconduct should have been granted. Lynch’s objection and motion were based on the admission into evidence of a copy of a recording made by McCall of a conversation as well as a transcript of that recording made by the State to aid the jury in listening to the recording. The conversation was'between Lynch, McCall, and her uncle. The CD containing the conversation was played and admitted into evidence, and the transcript was published to the jury. During McCall’s testimony on re-cross-examination, it was revealed that Lynch had left the room where the conversation had taken place during part of the recording. Thus, Lynch argued that the evidence was inadmissible hearsay and that the State either knew or should have known that it was inadmissible hearsay.

Lynch argues on appeal that the hearsay evidence was highly damaging and that the State’s case was otherwise weak; therefore, he argues, the court should have granted his motion for a mistrial.

The record reveals that defense counsel referred to page 16 of the transcript of the recording where it indicated “inaudible” by a statement made by McCall’s uncle. McCall confirmed that she believed that Lynch had left the room at that time. Defense counsel then moved to exclude the rest of the conversation as hearsay and to instruct the jury to disregard it. Defense counsel acknowledged that the defense had been provided with the recording and a transcript of the recording during discovery but explained that the defense had not been provided with the transcript that identified the speakers — rather than simply identifying the speaker as male or female — until the previous day. Defense counsel stated that he had not had an opportunity to compare the recording to the transcript until the CD was played for the jury and it seemed that Lynch had left the conversation.

The court held that the transcript and recording contained hearsay. The judge determined that the transcript should be altered to eliminate the hearsay and then admitted into evidence. The judge instructed the jury that this latter exhibit, the redacted transcript, was the total transcript and that anything beyond its end constituted hearsay and should be disregarded.

Defense counsel then moved for a mistrial based on alleged misconduct by the State because McCall was not previously made available and the hearsay was highly damaging. Defense counsel argued that curative instructions to the jury could not eradicate the harm resulting from the admission of the hearsay.

The court held that, because defense counsel had heard the recording before the jury was let in and had already received a copy of the redacted transcript, a mistrial was not warranted. Moreover, the court reassured, there had been no misconduct by the State. The transcript was redacted and admitted, and the CD, which had already been admitted, was altered to leave out the hearsay. Just prior to retiring for deliberations, the court instructed the jury as follows:

“I do need to tell you about two pieces of evidence that will come back. All of the evidence which if admitted and is due to go back with you will be sent to you. There will be two pieces of evidence, one will be the recording of the telephone-recorded conversation that you heard. This will be — there will be a substitute. The substitute that — the original recording was Exhibit Number 119. The substitute will be 125. And it will stop at a point short of what you heard. You may or may not know it and it may or may not matter to you, but I’m just telling you, as a matter of law you could not consider that. So if there’s something on that recording that you recall, you need to disregard that. That was presented to you improperly. It is considered by this Court after conferring with the attorneys as hearsay that you shouldn’t consider as part of your deliberations or as part of your verdict. Can everyone understand that? Is there any problem? Does anybody have any problem following that instruction?
“Also, in Exhibit Number 126, which is — you were able to take a — I think, a transcript of the recording and read it along. It will track what is cut off of the recording. It will also cut off[. Wje’re going to send that which was admitted and it will also remove that portion that you should not consider as being hearsay. Does everyone understand that? So if you remember anything that you read, I’m going to ask you to disregard that and remove it from your consideration. Don’t make it a basis of verdict or discussion or deliberation. Does everyone understand that?”

(Supp. R. 703-04.)

There is no indication of prosecuto-rial misconduct in this case. The transcript provided to the jurors was the same as the original transcript defense counsel was provided with during discovery, with the exception of the juror’s version identifying which of the three people present was speaking. The original transcript identified the speaker only by gender. The second version was apparently made by a police officer as he listened to the recording. Although it is unclear when defense counsel was provided with the second version, he had the recording that he could listen to and the first transcript to aid him.

“ ‘A mistrial is a drastic remedy to be used sparingly and only to prevent manifest injustice, and the decision whether to grant it rests within the sound discretion of the trial court.’ Talley v. State, 687 So.2d 1261, 1275 (Ala.Cr.App.l996)(citing Inmin v. State, 654 So.2d 86 (Ala.Cr.App.1994)); see also Grimsley v. State, 678 So.2d 1197, 1206 (Ala.Cr.App.1996).” Bryant v. State, 727 So.2d 870, 877 (Ala.Crim.App.l998)(stating where alleged prosecutorial misconduct in telling defense witness that she was being investigated caused her to be unavailable: “We find that a mistrial would have been too drastic a remedy, given the fact that the gist of Ms. Wilson’s testimony had already been established through the testimony of other witnesses.”). See also McArthur v. State, 591 So.2d 135, 140 (Ala.Crim.App.1991) (“Because the trial court sustained the objections of defense counsel and instructed the jury to disregard, and because some of the objected-to evidence had already been presented to the jury without objection, we find that the trial court did not abuse its discretion in denying the appellant’s motions for mistrial based on the alleged misconduct of the prosecutor.”); Henderson v. State, 612 So.2d 1256, 1260 (Ala.Crim.App.1992)(holding that trial court did not abuse its discretion by denying Henderson’s motion for a mistrial after the prosecutor showed the jury a pair of ladies’ panties that were never admitted into evidence: “““An error that might have been prejudicial in a close case does not require reversal when the evidence of the defendant’s guilt is strong. Further, in such a case the defendant must show that the trial court’s error was, in fact, prejudicial to him.’ ” ’ ”).

“In determining whether the accused was prejudiced by prosecutorial misconduct, “we must ordinarily give great deference to the ... judge’s handling of the alleged misconduct during the trial. The ... judge is ordinarily in a much better position to understand the circumstances surrounding the alleged misconduct and to evaluate its impact.’ United States v. Tham, 665 F.2d 855, 860 (9th Cir.1981).” Wysinger v. State, 448 So.2d 435, 439 (Ala.Crim.App.1983). The court in the present case found that there was no indication of prosecutorial misconduct and, that there was, therefore, no basis for a mistrial. This decision is supported by the record.

Moreover, although the portion of the conversation that occurred outside Lynch’s presence was hearsay, its admission was harmless error in this case. See Rule 45, Ala. R.App. P. (“No judgment may be reversed or set aside ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”).

In Featherston v. State, 849 So.2d 217 (Ala.2002), the Alabama Supreme Court, in assessing harmless error, stated:

“[T]he factors to be considered include ‘ “ ‘[1] the importance of the [declarant’s] testimony in the prosecution’s ease, [2] whether the testimony was cumulative, [3] the presence or absence of evidence corroborating or contradicting the testimony of the [declarant] on material points, ... and [4] the overall strength of the prosecution’s case.”” Baker v. State, 906 So.2d 210, 241 (Ala.Crim.App. 2001) (quoting James v. State, 723 So.2d 776, 782 (Ala.Crim.App.1998)(in turn quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986))).”

849 So.2d at 222. Furthermore,

“[i]t is well settled that ‘testimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred.’ White v. State, 650 So.2d 538, 541 (Ala. Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995). See also Dawson v. State, 675 So.2d 897, 900 (Ala.Crim. App.1995), aff'd, 675 So.2d 905 (Ala. 1996)(‘The erroneous admission of evidence that is merely cumulative is harmless error.’); Thompson v. State, 527 So.2d 777, 780 (Ala.Crim.App.1988)(‘Tes-timony which may be apparently illegal upon admission may be rendered preju: dicially innocuous by subsequent or pri- or lawful testimony to the same effect or from’ which the same facts can be m-ferred.’).”

Jackson v. State, 791 So.2d 979, 1013-14 (Ala.Crim.App.2000).

In the present case, Haynes testified that Lynch agreed to commit the. murder in return for money or money and drugs. He testified that Lynch and he were initially paid $2,000 by Files for killing Laz-enby. Both Haynes and McCall testified that when a television account regarding the murder aired, Lynch told Files that he wanted the rest of the money-owed him for the murder. Jones testified that she was in the car with Lynch and Hendrix when they were dropped off to commit the murder. She also testified that Lynch told Hendrix that Lynch would kill the victim and that Hendrix did - not have to do anything. Haynes testified that when Lynch returned to Birmingham after the offense, he went -with Lynch to burn Lazenby’s vehicle and that Lynch was wearing Laz-enby’s sunglasses. The vehicle was found by police officers where it had been burned. Haynes also testified that Lynch had taken Lazenby’s cellular telephone and wallet. According to Haynes, Lynch burned the clothing he was wearing when he committed the murder because it was bloody. McCall testified that she had had several conversations with Lynch concerning the murder. Both McCall and Haynes testified that Lynch told them that he had shot Lazenby in the face by firing through the glass in the door. They testified that he told them that he had then entered Lazenby’s house where he stabbed him with a knife and shot him again while Lazenby begged him to call an ambulance. Haynes testified that he had seen Lynch with a .38 caliber handgun just before he left to commit the murder and both McCall and Haynes testified that Lynch told them that he had thrown the gun in a creek after the murder.

Although Lynch argues that McCall’s testimony was important to the State’s case, her testimony was cumulative of Haynes’s testimony and was corroborated by both Haynes and Jones. The State’s evidence was strong, and the hearsay evidence consisted of only approximately 3 pages of the 18-page transcript of the recorded conversation. The CD and transcript reveal that the hearsay portions consist of the same kind of comment contained in the preceding non-hearsay portions. Lynch and McCall had already discussed the offense and the circumstances of the planning of the offense. Moreover, Lynch had already admitted to shooting Lazenby in the forehead through the glass door and to catching the knife thrown to him by Hendrix who had gotten it out of a drawer in the kitchen. He had stated that he was to get half of $85,000 from Lazenby’s wife. The hearsay portions of the CD and transcript merely contained statements by McCall and her uncle reiterating that they would not have gotten involved and that Lynch should not have participated. They had previously made such statements while Lynch was present. Lynch suffered no prejudice by the jury’s having heard the hearsay portion of the CD that was also reflected in the transcript. Further, the court ordered the transcript redacted and the CD altered so as to omit the hearsay. The court then instructed the jury that it was to disregard the hearsay and to refrain from discussing it or making it part of the jury’s deliberations or verdict. Jurors are presumed to follow a trial court’s instructions. See Burgess v. State, 827 So.2d 134, 162 (Ala.Crim.App.1998).

Therefore, there was no error in the trial court’s denial of the motion for a mistrial.

II.

Lynch argues that the circuit court erred in denying his motion for a judgment of acquittal. Specifically, rather than challenging the sufficiency of the evidence, Lynch challenges the weight of the State’s evidence, contending that it was all circumstantial and that the witnesses were not credible. “However, evidence of criminal conspiracies hardly ever comes from ministers and civic leaders. The appellant can hardly complain of the unsavory character of the witnesses against him as they were all his chosen companions. The weight and credibility of the testimony was for the jury to determine.” Anderson v. State, 354 So.2d 1156, 1159 (Ala.Crim.App.1977).

“‘“The role of appellate courts is not to say what the facts are. Our role ,., is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962). “The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust.” Bridges v. State, 284 Ala. 412, 420, 225 So.2d 821 (1969). Even though an appellate court should “marvel that a jury would convict upon such flimsy proof,” it is “not permitted to pass upon the weight or sufficiency of the evidence, where it may yield any rational inference of guilt.” Toles v. State, 170 Ala. 99, 100, 54 So. 511 (1911). A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960),’ Granger [v. State ], 473 So.2d [1137] at 1139 [ (Ala.Crim.App.1985) ].
“Where a defendant’s conviction is based solely on circumstantial evidence, ‘if the circumstances can be reconciled with the theory that someone else may have done the act, then the conviction is due to be reversed.’ Ex parte Brown, 499 So.2d 787, 788 (Ala.1986) (emphasis in original). ‘Circumstantial evidence alone is enough to support a guilty ver-diet of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985). ‘It is not necessary for a conviction that the defendant be proved guilty to the “exclusion of every possibility of innocence.” ’ Burks v. State, 117 Ala. 148, 23 So. 530 (1898). ‘The facts and circumstances in evidence, if dissevered and disconnected, may be weak and inconclusive; but them probative force, when combined, as it was the province of the jury to combine them, under proper instructions from the court, may have satisfied them of the guilt of the defendant.’ Howard v. State, 108 Ala. 571, 18 So. 813, 815 (1895).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989).

The weight of the evidence and credibility of the witnesses were matters to be determined by the jury. There was evidence indicating that Lynch shot and stabbed Lazenby in return for $2,000 and the promise of more from Files. There was also evidence indicating that Lynch shot Lazenby through the door as Lazenby closed it. Lynch then entered Lazenby’s house, shot and stabbed him, and took his cell phone, wallet, sunglasses, and vehicle. The State’s evidence was sufficient to submit the case to the jury.

III.

Although the error was not raised on appeal, this Court must notice any errors that have jurisdictional implications. Lynch was convicted of four counts of murder for hire or pecuniary gain— Count one, murder for hire by Earnest Files, Jr.; count two, murder pursuant to contract by Earnest Files, Jr.; count three, murder for hue by Calvin McCall Haynes; count four, murder pursuant to a contract by Calvin McCall Haynes — and two counts of murder during a burglary— count five, murder during the course of committing a burglary in the first degree, armed; and count six, murder during the course of committing a burglary in the first degree with physical injury. The first two convictions are for the alternative means of committing a murder for hire in violation of § 13A-5-40(a)(7), wherein the same victim was killed pursuant to a contract for hire by Earnest Files, Jr. The following two convictions are for the alternative means of committing a murder for hire in violation of § 13A-5-40(a)(7), wherein the same victim was killed pursuant to a contract for hire by Calvin McCall Haynes. The last two convictions are for the alternative means of committing murder during a burglary in violation of § 13A-5-40(a)(4). Because convictions for alternative means of committing the same offense violate the right to be free from double jeopardy, three of these convictions are due to be dismissed. “A single crime cannot be divided into two or more offenses and thereby subject the perpetrator to multiple convictions for the same offense. Const. of 1901, Art. I, § 9; U.S. Const. Amend. V; Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), affirmed in part, writ quashed in part, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983).” Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). See also Revis v. State, 101 So.3d 247, 335 (Ala.Crim.App.2011)(“Thus, the two counts of murder during robbery in the present case charged Revis with committing the same offense. Moreover, the fact that the sentences would have been served concurrently does not obviate the harm resulting from the unlawful conviction.”); Castillo v. State, 925 So.2d 284 (Ala.Crim.App.2005).

Therefore this case is due to be remanded to the circuit court for that court to enter an order adjudging Lynch guilty of one count of murder for hire by Earnest Files, Jr., one count of murder for hire by Calvin McCall Haynes, and one count of murder during a burglary. Due return should be made to this Court within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

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

      . The original transcript provided to the defense during discovery identified the speakers only as male and female. (Supp. R. 319.) A later version of the transcript was prepared by the State, in which the speakers were identified as Lynch, McCall, and her uncle, Leroy McCall.

      . There was subsequent testimony that a white woman had asked that her husband be killed and had shown the people she was asking a bag of money that would later be payment for the killing. That information was included in a statement Haynes gave the police. There was also testimony from Laz-enby's attorney that Lazenby and his wife were getting a divorce and that his wife had filed some police reports concerning Files.

      . There are varying numbers in the record regarding the amount offered for committing the murder.

      . This Court has listened to the CD and the voices are easily discernible as a single female and two men with distinctly different voices.

       Note from the reporter of decisions: On May 27, 2016, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: QUINCE, J.

text:
    FLORIDA INDUSTRIAL POWER USERS GROUP, Appellant, v. Art GRAHAM, etc., et al., Appellees.
    No. SC15-2146
    Supreme Court of Florida.
    [January 26, 2017]
    Jon Cameron Moyle, Jr. and Karen Ann Putnal of the Moyle Law Firm, Tallahassee, Florida, for Appellant
    Keith Hetrick, General Counsel, Samantha M. Cibula, Attorney Supervisor, and Pamela Hess Page, Senior Attorney, Florida Public Service .Commission, Tallahassee, Florida, for Appellee Florida Public Service Commission
    James Ray Kelly, Public Counsel, and Charles John Rehwinkel, Deputy Public Counsel, Office of Public Counsel, Tallahassee, Florida, for Appellee Citizens of the State of Florida
    Alvin Bruce Davis and Jonathan Ross Weiss of Squire Patton Boggs, LLP, Miami, Florida; and John T. Butler and Maria Jose Moneada, Florida Power & Light Company, Juno Beach, Florida, for Appel-lee Florida Power & Light Company
   QUINCE, J.

This case is before the Court on appeal from a decision of the Florida Public Service Commission (the Commission or PSC) relating to the rates or service of a public utility providing electric service. See In re: Petition for approval of arrangement to mitigate impact of unfavorable Cedar Bay power purchase obligation, by Fla. Power & Light Co., No. 150075-EI, Order No. PSC-15-0401-AS-EI, 2015 WL 5655683 (Fla. P.S.C. Sept. 23, 2015). We have jurisdiction. See art. V, § 3(b)(2), Fla. Const. For the reasons explained below, we affirm the Commission’s order because we conclude that the Commission did not err in denying the request for sequestration in this case.

I. FACTS

On March 6, 2016, Florida Power & Light Company (FPL) filed with the Commission a “Petition for Approval of Arrangement to Mitigate Impact of Unfavorable Cedar Bay Power Purchase Agreement.” The petition requested that the Commission approve FPL’s purchase of a power plant, Cedar Bay, so FPL could terminate its existing power purchase agreement with Cedar Bay. The Florida Industrial Power Users Group (FIPUG) and the Office of Public Counsel (the OPC) — representing the citizens of the state of Florida — both intervened in the proceedings in March of 2015.

On July 24, 2015, OPC and FPL reached a negotiated settlement agreement and filed a joint motion seeking the Commission’s approval of the agreement. FIPUG objected to and did not sign the settlement agreement. The Commission held a hearing to address FPL’s petition on July 28, 2015 — despite the filing of the proposed settlement agreement, which it decided to address at a later date.

At the outset of the July 28, 2015, hearing on the petition, FIPUG invoked the rule of sequestration of witnesses, pursuant to section 90.616, Florida Statutes (2015), but the Commission denied the request, finding that it had discretion as to whether to apply the rule in its proceedings. At the close of the hearing, the Commission scheduled the hearing on the settlement agreement and approved it on August 27, 2015, entering its final order on September 28, 2015.

FIPUG now appeals on the sole issue that the Commission erred in not sequestering the witnesses after FIPUG made its request for sequestration under section 90.616, Florida Statutes (2015).

II. ANALYSIS

In this case, the Commission concluded that because the hearing below was an administrative proceeding, it had discretion as to whether to apply section 90.616. Accordingly, it denied the request to invoke the rule of sequestration. Whether section 90.616 applies to administrative proceedings is a pure question of law, subject to de novo review. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012) (finding statutory interpretation to be a question of law, subject to de novo review).

Section 90.616 reads in its entirety:

90.616 Exclusion of witnesses.—
(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).
(2) A witness may not be excluded if the witness is:
(a) A party who is a natural person.
(b) In a civil case, an officer or employee of a party that is not a natural person, The party’s attorney shall designate the officer or employee who shall be the party’s representative.
(c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause.
(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

§ 90.616, Fla. Stat. (2015). While the statute makes sequestration mandatory if a party requests it, the plain language of the statute is ambiguous as to whether it applies in administrative proceedings.

To ascertain legislative intent, we first look to the other provisions within chapter 90 itself. Section 90.103, Florida Statutes (2015), entitled “Scope; applicability,” states:

(1) Unless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code.
(2) This act shall apply to criminal proceedings related to crimes committed after the effective date of this code and to civil actions and all other proceedings pending on or brought after October 1, 1981.
(3) Nothing in this act shall operate to repeal or modify the parol evidence rule.

§ 90.103, Fla. Stat. (2015). Under subsection (1), the Florida Evidence Code applies to the same proceedings to which the general law of evidence applied before July 1, 1979.

However, as asserted by FPL and the PSC, the general law of evidence did not apply to administrative proceedings before that date. See Jones v. City of Hialeah, 294 So. 2d 686, 687 (Fla. 3d DCA 1974) (“[A]djudicatory proceedings before administrative boards are not required to adhere to strict rules pertaining to the exclusion of evidence required in trials in a court of law.”); Odessky v. Six L’s Packing Co., 213 So. 2d 732, 734 (Fla. 1st DCA 1968) (“Examiners in administrative hearings are not required to comply with strict rules of evidence and have wide discretion in the admission of ... evidence proposed by either party.”); Sauls v. De Loach, 182 So. 2d 304, 305 (Fla. 1st DCA 1966) (“It is fundamental that the strict rules of evidence followed in formal court actions do not govern in proceedings before administrative bodies.”); Agner v. Smith, 167 So. 2d 86, 91 (Fla. 1st DCA 1964) (“[W]hile the strict rules of evidence applying to formal court proceedings do not govern hearings before an administrative board as here involved, the evidence relied upon by a quasi-judicial tribunal to sustain its ultimate finding should ... be sufficiently relevant and material .... ” (internal quotation marks omitted)); De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957) (“[W]e are aware of the familiar rule that in administrative proceedings the formalities in the introduction of testimony common to the courts of justice are not strictly employed.”). Therefore, under 90.103(1), Fla. Stat. (2015), the Florida Evidence Code does not strictly apply to administrative proceedings.

The OPC asserts that the general law of evidence did apply to administrative proceedings prior to the effective date of the Florida Evidence Code. In support, the OPC first cites a case in which we quoted the following rule from a former version of the Commission’s Rules of Practice and Procedure: “Rule I reads: ‘In general the rules of evidence applicable to hearings before the Florida Railroad and Public Utilities Commission shall be the general rules of evidence applied to the circuit courts of this State, with such exceptions as the Commission may make.’ (Emphasis supplied.)” Greyhound Corp., Se. Greyhound Lines Div. v. Carter, 124 So. 2d 9, 16 (Fla. 1960). However, even the language of that rule clarifies that the rules of evidence are only generally applicable and can be modified based on the Commission’s discretion.

The OPC also cites an order from the Commission — issued after the enactment of the Evidence Code and section 90.616 in particular — that reads, “[I]t is important to note that the Commission does rely on and follow the Florida Evidence Code and the Florida Rules of Civil Procedure in proceedings before it.” In re: Application for a Rate Increase by Gen. Dev. Utils., Inc. (Port Malabar Div.) in Brevard Cty., Nos. 911030-WS, 911067-WS, Order No. PSC-92-0326-PCO-WS, 1992 WL 12596236, 92 Fla. Pub. Serv. Comm’n Rep. 5:174 (Fla. P.S.C. May 11, 1992). But such language does not refute the Commission’s argument that it has the discretion to rely on the Evidence Code if it desires to do so.

FIPUG argues that resort to section 90.103(1) is unnecessary because the “all other proceedings” language within section 90.103(2) includes administrative hearings. Specifically, that subsection reads, “This act shall apply to criminal proceedings related to crimes committed after the effective date of this code and to civil actions and all other proceedings pending on or brought after October 1, 1981.” § 90.103(2), Fla. Stat. (2015). Because the instant administrative proceeding before the Commission is an “other proceeding” which occurred after October 1, 1981, FI-PUG argues the Evidence Code applied to this proceeding, unless specifically exempted.

However, FIPUG’s argument is misplaced. Subsection (2) merely sets forth the timeline for applicability of the Evidence Code: proceedings occurring after October 1, 1981. That subsection does not modify or cancel out the scope of the applicability, as set forth in 90.103(1). Subsection (1) establishes the types of cases to which the Evidence Code applies and subsection (2) further narrows that scope to only those proceedings that were pending on or brought after October 1, 1981. Accordingly, we find that the Commission did not err in finding that it has discretion regarding whether to apply the Florida Evidence Code — including the rule of sequestration found in section 90.616, Florida Statutes — in its administrative proceedings,

Administrative proceedings are instead governed by chapter 120, Florida Statutes, known as the Administrative Procedure Act (APA). See §§ 120.51, 120.569(1), Fla. Stat. (2015). Although chapter 90 sets forth the Florida Evidence Code, the APA contains its own guidance regarding the admissibility of evidence—including testimony — which is found in section 120.569(2)(g), Fla. Stat (2015). That section reads:

Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida. Any part of the evidence may be received in written form, and all testimony of parties and witnesses shall be made under oath.

§ 120.569(2)(g), Fla. Stat. (2015). This section exemplifies the longstanding general rule, described above, that the rules of evidence do not strictly apply in administrative proceedings. See Jones, 294 So. 2d at 687; Odessky, 213 So. 2d at 734; Sauls, 182 So.2d at 305; Agner, 167 So. 2d at 91; De Groot, 95 So. 2d at 916. We find that the Commission has discretion on whether to apply the Florida Evidence Code and, in particular, the rule of sequestration to its proceedings.

III. CONCLUSION

Based on sections 90,103(1) and 120.569(2)(g), Florida Statutes, we find that the Florida Evidence Code is not applicable to administrative proceedings. Therefore, as the Commission ruled in this case, it has the discretion to refuse, to apply the rule of sequestration, codified in section 90.616, Florida Statutes, during its proceedings. We deny relief to FIPUG and affirm the Commission’s order in this case.

It is so ordered.

LABARGA, C.J., and PARIENTE, CANADY, and POLSTON, JJ., and PERRY, Senior Justice, concur.

LEWIS, J., concurs in result.

      . See Hernandez v. State, 4 So. 3d 642, 662-63 (Fla. 2009) (''[S]ection 90.616 adopts the view that sequestration is demandable as a matter of right.”).

      . The original effective date of the Florida Evidence Code was June 1, 1977. Ch. 76-237, § 8, Laws of Fla. However, in a series of bills, the Legislature amended the original date to instead read “July 1, 1979.” See ch. 77-77, § 1, Laws of Fla.; ch. 78-361, § 22, Laws of Fla.; ch. 78-379, § 1, Laws of Fla.

      . Likewise, the OPC points out that the Commission has granted a motion to invoke the rule of sequestration in a previous case. See In re: Initiation of Show Cause Proceedings Against Cherry Payment Sys, Inc. d/b/a Cherry Commc’ns for Violation of Rule 25-4.118, F.A.C., Interexchange Carrier Selection, No. 921250-TI, Order No. PSC-93-1374-FOF-TI, 1993 WL 13647691, 93 Fla. Pub. Comm’n Rep. 9:412 (Fla. P.S.C. Sept. 20, 1993). However, again, this fact does not refute the Commission’s assertion of discretion as to whether to apply the rule in its proceedings.