text:
    EX PARTE Corey L. NUNLEY
    CR-15-0219
    Court of Criminal Appeals of Alabama.
    01/08/2016
   Habeas corpus pet. dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Lee Otis MONTGOMERY, Jr. v. STATE
    CR-15-0223
    Court of Criminal Appeals of Alabama.
    01/29/2016
   Dismissed.


text:
    EX PARTE Kevin DOWNES
    CR-15-0233
    Court of Criminal Appeals of Alabama.
    01/08/2016
   Mand. pet. denied.


text:
    EX PARTE John Paul RICE
    CR-15-0234
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. denied.


text:
    EX PARTE Kelandus CONSENTA
    CR-15-0240
    Court of Criminal Appeals of Alabama.
    02/11/2016
   Mand. pet. stricken.


text:
    EX PARTE David Lee MORGAN
    CR-15-0243
    Court of Criminal Appeals of Alabama.
    02/10/2016
   Transferred to Jefferson Cir. Ct.


text:
    EX PARTE Christopher M. TWYMAN
    CR-15-0246
    Court of Criminal Appeals of Alabama.
    01/06/2016
   Transferred to Talladega Cir. Ct.


text:
    EX PARTE Norman J. BUFORD
    CR-15-0249
    Court of Criminal Appeals of Alabama.
    02/10/2016
   Habeas corpus pet. denied.


text:
    Ernest Jerome GREEN v. STATE
    CR-15-0250
    Court of Criminal Appeals of Alabama.
    03/11/2016
   Affirmed.


text:
    EX PARTE Samuel Allan MCCORMICK
    CR-15-0260
    Court of Criminal Appeals of Alabama.
    01/29/2016
   Habeas corpus pet. dismissed.


text:
    EX PARTE Andrea WOODS
    CR-15-0264
    Court of Criminal Appeals of Alabama.
    01/11/2016
   Mand. pet. dismissed.


text:
    EX PARTE Jarmarkus Deon BROWN
    CR-15-0269
    Court of Criminal Appeals of Alabama.
    02/10/2016
   Habeas corpus pet. denied.


text:
    EX PARTE Charlie BRITFORD
    CR-15-0281
    Court of Criminal Appeals of Alabama.
    02/11/2016
   Mand. pet. dismissed.


text:
    EX PARTE Michael JONES
    CR-15-0282
    Court of Criminal Appeals of Alabama.
    02/11/2016
   Mand. pet. denied.


text:
    Damien Sharell HOWARD v. STATE
    CR-15-0291
    Court of Criminal Appeals of Alabama.
    03/11/2016
   Affirmed.


text:
    James Charles BISHOP v. STATE
    CR-15-0294
    Court of Criminal Appeals of Alabama.
    02/11/2016
    Reh. denied 03/02/2016
   Dismissed.


text:
    EX PARTE James GILL
    CR-15-0296
    Court of Criminal Appeals of Alabama.
    01/08/2016
   Habeas corpus pet. dismissed.


text:
    Corey Damon MONTGOMERY v. ALABAMA BOARD OF PARDONS & PAROLES
    CR-15-0298
    Court of Criminal Appeals of Alabama.
    03/04/2016
   Affirmed.


text:
    Earnest RICKS v. STATE
    CR-15-0309
    Court of Criminal Appeals of Alabama.
    01/06/2016
   Dismissed.


text:
    Jesse James BROOKS v. ALABAMA BOARD OF PARDONS & PAROLES
    CR-15-0310
    Court of Criminal Appeals of Alabama.
    03/25/2016
   Affirmed.


text:
    EX PARTE Kevin Delano JOHNSON
    CR-15-0314
    Court of Criminal Appeals of Alabama.
    02/11/2016
   Habeas corpus pet. denied.


text:
    Brian GAUTHIER v. STATE
    CR-15-0321
    Court of Criminal Appeals of Alabama.
    02/11/2016
   Transferred to Ct. of Civ. App.


text:
    EX PARTE Dequez WHITE
    CR-15-0322
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Mand. pet. dismissed.


text:
    EX PARTE Jamaar TAYLOR
    CR-15-0323
    Court of Criminal Appeals of Alabama.
    01/08/2016
   Transferred to Butler Cir. Ct.


text:
    Charlie BRITFORD v. STATE
    CR-15-0328
    Court of Criminal Appeals of Alabama.
    03/21/2016
   Reh. denied.


text:
    Charles A. MONEY v. STATE
    CR-15-0332
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Dismissed.


text:
    EX PARTE Farris BURRELL
    CR-15-0342
    Court of Criminal Appeals of Alabama.
    01/08/2016
   Transferred to Jefferson Cir. Ct., Bessemer Div.


text:
    EX PARTE Walter Smith PARKER
    CR-15-0365
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Montgomery Cir. Ct.


text:
    EX PARTE James Edward BAGLEY
    CR-15-0366
    Court of Criminal Appeals of Alabama.
    03/30/2016
   Transferred to Calhoun Cir. Ct.


text:
    EX PARTE Joe Daniel HOLT, Jr.
    CR-15-0369
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Limestone Cir. Ct.


text:
    EX PARTE Billy Alfred FLOWERS
    CR-15-0380
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. dismissed.


text:
    EX PARTE Antonio JERIDO
    CR-15-0382
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. stricken.


text:
    EX PARTE Taylor WILSON
    CR-15-0383
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Mand. pet. denied.


text:
    EX PARTE Melvin R. BUSH
    CR-15-0384
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Mand. pet. dismissed.


text:
    EX PARTE Ronnie L. COLVIN
    CR-15-0385
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. dismissed.


text:
    Robert S. BOWIE v. STATE
    CR-15-0387
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Dismissed.


text:
    Bryan Lee DANIEL v. STATE
    CR-15-0389
    Court of Criminal Appeals of Alabama.
    02/04/2016
   Dismissed.


text:
    EX PARTE Taylor CLAR
    CR-15-0390
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Sumter Cir. Ct.


text:
    EX PARTE Mario Jevon TUNSTALL
    CR-15-0393
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. stricken.


text:
    EX PARTE SEALED CASE (In re: Sealed Case)
    CR-15-0394
    Court of Criminal Appeals of Alabama.
    02/22/2016
   Mand. pet. denied.


text:
    Isaac Ray BANKHEAD v. STATE
    CR-15-0395
    Court of Criminal Appeals of Alabama.
    03/11/2016
   Affirmed.


text:
    EX PARTE Willie Lee JONES
    CR-15-0398
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Mand. pet. dismissed.


text:
    Roscoe HOLLOWAY v. STATE
    CR-15-0405
    Court of Criminal Appeals of Alabama.
    03/11/2016
    Reh. denied. 03/25/2016
   Affirmed.


text:
    EX PARTE Eric Vernardo ODOM
    CR-15-0412
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Mand. pet. denied.


text:
    Jamel S. SALES v. STATE
    CR-15-0418
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Dismissed.


text:
    Richard Scott SMITH v. STATE
    CR-15-0426
    Court of Criminal Appeals of Alabama.
    01/29/2016
   Dismissed.


text:
    Terry G. BLAND v. ALABAMA BOARD OF PARDONS & PAROLES
    CR-15-0441
    Court of Criminal Appeals of Alabama.
    03/11/2016
    Reh. denied 03/25/2016
   Affirmed.


text:
    Ex parte State (In re: STATE v. D.L.L.)
    CR-15-0442
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Mand. pet. dismissed.


text:
    James Calvin FRAZIER v. STATE
    CR-15-0445
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Dismissed.


text:
    EX PARTE Torrance JULIUS
    CR-15-0447
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Mand. pet. dismissed.


text:
    EX PARTE Brandon WOLFE
    CR-15-0461
    Court of Criminal Appeals of Alabama.
    03/10/2016
   Mand. pet. stricken.


text:
    Calvin MASSEY v. STATE.
    CR-15-0462
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Transferred to Sup. Ct.


text:
    EX PARTE Michael WEBB
    CR-15-0472
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Jefferson Cir. Ct.


text:
    EX PARTE Carl HOOD
    CR-15-0479
    Court of Criminal Appeals of Alabama.
    03/07/2016
   Mand. pet. dismissed.


text:
    EX PARTE Jimenez M. PEDRO
    CR-15-0481
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Talladega Cir. Ct.


text:
    Tarrance Terrell MAYS v. STATE
    CR-15-0491
    Court of Criminal Appeals of Alabama.
    03/15/2016
   Dismissed.


text:
    EX PARTE Eliot HOFF
    CR-15-0493
    Court of Criminal Appeals of Alabama.
    03/01/2016
   Transferred to Tuscaloosa Cir. Ct.


text:
    James Lanier HEARD v. STATE
    CR-15-0495
    Court of Criminal Appeals of Alabama.
    02/18/2016
   Dismissed.


text:
    EX PARTE Victor Ray JONES
    CR-15-0503
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Transferred to Winston Cir. Ct.


text:
    EX PARTE Ronald EVANS
    CR-15-0505
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Mand. pet. dismissed.


text:
    EX PARTE Tommy J. BOLDIN
    CR-15-0510
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Transferred to Montgomery Cir. Ct.


text:
    EX PARTE John Clayton OWENS, Jr.
    CR-15-0511
    Court of Criminal Appeals of Alabama.
    02/05/2016
   Mand. pet. denied.


text:
    EX PARTE Eric Jawayne DANIELS
    CR-15-0519
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Transferred to Etowah Cir. Ct.


text:
    Damon Augustus BURRELL v. STATE
    CR-15-0525
    Court of Criminal Appeals of Alabama.
    03/23/2016
   Dismissed.


text:
    EX PARTE Lawrence ANDERSON
    CR-15-0532
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Mand. pet. stricken.


text:
    Carlos Bruce MABRY v. STATE
    CR-15-0538
    Court of Criminal Appeals of Alabama.
    03/03/2016
   Dismissed.


text:
    EX PARTE James Anthony Shaun SPARKS
    CR-15-0563
    Court of Criminal Appeals of Alabama.
    03/22/2016
   Transferred to Madison Cir. Ct.


text:
    EX PARTE Robert D. KITCHEN, Jr.
    CR-15-0568
    Court of Criminal Appeals of Alabama.
    03/22/2016
    Reh. denied. 03/25/2016
   Mand. pet. denied.


text:
    EX PARTE Michael Gregory HUBBARD
    CR-15-0597
    Court of Criminal Appeals of Alabama.
    03/08/2016
   Mand. pet. denied.


text:
    Jarred Lynn SMITH v. STATE
    CR-15-0610
    Court of Criminal Appeals of Alabama.
    03/18/2016
   Dismissed.


text:
    EX PARTE Cedric FLOYD
    CR-15-0637
    Court of Criminal Appeals of Alabama.
    03/11/2016
   Mand. pet. denied.


author: JOINER, Judge.

text:
    David Martin MOGIL v. STATE of Alabama
    CR-15-0011
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2016

      William H. Broome and William H. Broome, Jr., Anniston, for appellant.
    Luther Strange, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   JOINER, Judge.

David Martin Mogil appeals his conviction for aggravated cruelty to an animal, see § 13A-11-14.1, Ala. Code 1975, and his sentence of 10 years’ imprisonment! The trial court split that sentence to' time served followed by supervised probation. The trial court ordered Mogil to. pay a $1,000 fine, a $262.50 bail-bond fee, and a $50 crime victims’ compensation assessment.

The State’s evidence at trial tended to show the following. James Wright, the owner of Grady Electrical Contractors, testified that, on November 19, 2014, he and two employees, Brian Roberts and Donald Pippen, were working at Rack and Roll Billiards in Anniston. Wright explained that Rack and Roll Billiards is adjacent to a -restaurant named Damn Yankees, and a second-story balcony with a solid-wall railing is located directly above the back,,entrance to Damn Yankees. Although Wright had never heard any dogs on the balcony, he had seen dogs peek their heads over the railing.

When Wright arrived at Rack and Roll Billiards at approximately 7:30 a.m., Pip-pen was standing outside, and he and Pip-pen “heard an animal yelping and hollering.” Mogil was standing on the balcony cursing and “pretty much just hollering and making a lot of movement.” Wright described Mogil’s movement as “kicking something” and “an erratic movement in a very angrily [sic] manner.” Mogil eventually went inside, and Wright and his employees continued their work inside Rack and Roll Billiards.

Wright left the work site for approximately 30 minutes, and, when he returned, he found Pippen standing outside again. Wright testified, “I heard the dog hollering again, and I seen the hose being slung toward the dog, you know, and going in a downward motion several times.” Wright could see' Mogil from the waist up, and he observed Mogil swinging a water hose “over his shoulder and then back to the ground.” Wright testified that he heard a dog “hollering like crazy” and that “[i]t was a little worse this time. It was yelping and screaming and hollering, and it went away again because [Mogil] went back inside.” Wright stated that, when Mogil returned to the balcony, “[Mogil] started toward the dog, and he bailed out.” Wright observed the dog jump off the balcony; he stated that the dog “hit like this-little table thing and it fell-. It just laid there. Its legs were moving for a minute. I assumed that the dog might have died right then. I didn’t know because I never seen it get back up.”

Wright went back inside-Rack and Roll Billiards because a security guard from a nearby bank had also witnessed the incident, and Wright assumed the security guard would take control of the situation. Wright eventually spoke with the security guard because Wright’s employees were upset, and the security guard left the. area to notify a police officer of the incident. Wright then testified:

“I went back inside working again, and it wasn’t a couple of minutes later and Dave [Mogil] comes in. When Dave comes in, he just comes straight in, and I guess he didn’t know who he was talking to. He came straight up to me, and he was hollering, ‘I didn’t hit that dog.’ And I said, ‘Dave, ,1 seen you hit that dog.’ And then he just put his hand out and said, ‘Well, it bit me.’ I said, ‘So now you’re saying it bit you because you obviously hit it.’ He got really aggravated because of my questioning and the fact that I saw it, and I told him I saw it.”

(R. 118.)

Donald Pippen testified that he, was working for Grady Electrical Contractors at Rack and Roll Billiards on the morning of November 19, 2014. When Pippen arrived, he heard a dog yelping as if it was hurt, and he observed Mogil “hitting a cocker spaniel with a push broom.” Pippen clarified that Mogil was not hitting the dog hard; he explained that the dog was on the balcony railing and that Mogil was attempting to get the dog off the railing and back onto the balcony. Pippen stated that the dog was clearly frightened but that he did not. believe Mogil’s hitting- it with the broom was the cause of its yelping.

Pippen and Roberts started their work inside Rack and Roll Billiards, and Wright eventually left to purchase material. When Wright returned, Pippen was outside watching Mogil swing' a water hose. Pip-pen could not see the dog, but he could hear it yelping. Pippen stated, “He hit the dog. I know he hit the dog because it was hollering.” Pippen testified:

“We kept observing. I went over to Jamie [Wright’s] truck, and I was telling Jamie what was going on. Jamie got kind of irate, but he went inside, and he said leave him alone and let him do what he is doing, whatever. At that point, Jamie went inside. I came back out. Me and Brian Roberts came back out, and the dog was up on the balcony. Dave was out there, you know, hollering, cussing, or whatever. And to be honest, I don’t know if he swung the water hose or not, but I know the dog jumped off the rail onto the pavement down below, like two stories. A dog ain’t just going to jump like that, that far for no reason.”

(R. 143.) After the dog jumped, Pippen saw the dog “bleeding from his mouth laying [sic] on the concrete” and “kicking his little legs.” Pippen testified that Mogil subsequently confronted Wright inside Rack and Roll Billiards. Mogil initially denied hitting the' dog; however, he later admitted hitting the dog because, he said, it bit him. Mogil’s girlfriend eventually arrived and retrieved the dog,

Ross Cash, a security officer at Regions Bank in Anniston, explained that the main entrance to the bank “is right across the alley from Damn Yankees.” Cash testified that, on November 19, 2014, he saw a cocker spaniel he knew as “Coco” jump off the railing of the balcony that is located above Damn Yankees. During the previous two weeks, Cash had regularly talked to the dog and had never before seen her standing on the railing of the balcony. On this morning, however, the dog was “petrified” and was standing on the balcony railing. Cash testified that, when Mogil came out onto the balcony, the dog immediately “jumped to get away from him.” After the dog jumped, it “never showed any signs of movement” until Allison Johnson—whom Cash described as “Coco’s momma”—arrived. Cash testified, “When she saw Allison, it’s like it kicked in. She jumped up and run right to Allison.”

Allison Johnson testified that, on November 19, 2014, she was dating Mogil and had been living with him at the apartment located above Damn Yankees for approximately two weeks. Johnson also kept her pets—a cocker spaniel named Coco Lily, a pug named Rider, and a cat named Bo Kitty—at the apartment. On the morning of the incident, Johnson had been at work for about an hour when Mogil called her and told her to come home. When Johnson arrived, “Officer Cash came up [to her] and said that something had happened to Lil.” Coco Lily ran up to Johnson, and she noticed that the dog was not behaving as it normally did; Coco Lily was bleeding from her mouth, had “used the bathroom on herself,” “had her back tucked down,” and “wasn’t wagging her tail.” Coco Lily followed Johnson to a staircase that leads up to the apartment, but the dog stopped because Mogil was standing at the top of the staircase. Mogil screamed, “[D]o not let that fucking dog in my house,” and threatened to kill Coco Lily. Johnson retrieved a towel from the apartment and cleaned Coco Lily before taking her to the veterinarian’s office. Johnson testified that State’s Exhibit 3, photographs of Coco Lily taken at the veterinarian’s office, showed dark striping on the dog’s coat that was not her natural coloring. After leaving the veterinarian’s office, Johnson took Coco Lily to her ex-husband’s house because she felt the dog would not be safe at Mogil’s residence.

Mogil later explained to Johnson that he was attempting to put the dogs outside on the balcony; because Coco Lily was not moving fast enough, Mogil reached down to pick her up, and she bit his hand. Johnson did not see any visible signs of injury to Mogil’s hand and stated that Coco Lily does not have a history of biting. On the following day, law-enforcement officers questioned Johnson about Coco Lily’s welfare; at Mogil’s instruction, Johnson did not answer any of the officers’ questions.

Dr. Ginger Bailey, a veterinarian at the Southside Pet Clinic, testified that, on November 19, 2014, she examined Coco Lily because, she was told, the dog had jumped off a balcony. Dr. Bailey stated that Coco Lily “had a little bit of blood on her chin” due to an abrasion but that she did not observe any other injuries. According to Dr. Bailey, it is not unusual for a dog that has jumped off a balcony to lack injuries such as bruises or broken bones. Dr. Bailey sent Coco Lily home with antibiotic medication to treat the abrasion and anti-inflammatory medication because she expected the dog to be sore.

Dr. Bailey could not determine whether Coco Lily had been hit with a hose but, in her professional opinion, the act of hitting an animal with a hose absent a life-threatening situation constitutes cruel mistreatment. Dr. Bailey stated that, even if being hit with a hose did not cause a physical injury, it could still cause pain to an animal. Dr. Bailey testified that, hypothetically, a dog that moved slowly but ate normally could be evidence indicating injury resulting either from a fall off a balcony or being struck with a hose.

Sergeant Michael Webb of the Anniston Police Department went to Mogil’s apartment to check on Coco Lily. Mogil informed Sgt. Webb that Coco Lily was not his dog, that she belonged to Johnson, and that he did not know Coco Lily’s whereabouts. Sgt. Webb also questioned Johnson “about how the dog was, where the dog was, what vet it had went to. She refused to answer any of those questions. And I also heard Mr. Mogil at that time say, You don’t have to answer that,’ pretty much to every question that I asked her.” Sgt. Webb obtained an arrest warrant for Mog-il and a search warrant for his apartment. Sgt. Webb testified:

“So we got [the] hose pipe from the rear balcony, and there was nothing else in the apartment. ...
“Allison pulls up in her vehicle to the premises while we are there, and Mr. Mogil had already been arrested and transported from the scene. She wanted to know what we were doing there. Ultimately, her vehicle became part of the search warrant at the residence. And that is where—inside her vehicle is where we found the invoice. ...
“We found [the invoice] which was our first lead as to where the dog went to be treated and what time. That was the first that we had of any of that information.”

(R. 257.) Approximately six days after the incident, Jason Barrett, Johnson’s ex-husband, contacted Sgt. Webb and informed Sgt. Webb that Coco Lily was at his house. Sgt. Webb went to Barrett’s house, and Barrett informed Sgt. Webb that Coco Lily was taking pain medication and was moving slowly.

Eric Star, a jail administrator at the Calhoun County Jail, testified that, except for conversations between inmates and their attorneys, telephone calls from the jail are recorded. The State then played audio-recorded excerpts from telephone calls Mogil made while incarcerated at the jail. The excerpts consisted of Mogil stating the following: (1) that he spanked the dog; (2) that he tried to spank the dog but was unsuccessful; (3) that he yelled and cussed at the dog; (4) that he did not torture the dog; (5) that the dog had a history of biting; and (6) that the dog had bit him on four or five previous occasions.

After the State rested, Mogil moved for a judgment of acquittal on the ground that the State had not made a prima facie case of aggravated cruelty to an animal or the lesser-included offense of cruelty to an animal. The trial court denied his motion. After the defense rested, Mogil renewed his motion, and the trial court again denied his motion. During the trial court’s oral charge, the court instructed the jury with respect to aggravated cruelty to an animal as well as the lesser-included offense of cruelty to an animal. The jury ultimately found Mogil guilty of aggravated cruelty to an animal.

Following his conviction and sentencing, Mogil filed a motion for a new trial and a motion for a judgment of acquittal. In each motion, Mogil argued, among other issues, that the State failed to present sufficient evidence to sustain his conviction. The trial court denied his motions.

On appeal, Mogil contends that the trial court erred when it denied his motions for a judgment of acquittal and his motion for a new trial because, he says, the State failed to present sufficient evidence to sustain his conviction or a conviction for the lesser-included offense of cruelty to an animal.

“ ‘In determining the sufficiency of the evidence to sustain the conviction, .this Court must accept as true the evidence introduced by the State, accord. the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala. Cr. App. 1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala. 1985).
(( i
“‘ “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).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[WJhere 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,] 1139 [ (Ala. Crim. App. 1985) ].
“,.. ‘Circumstantial evidence alone is enough'to support a guilty verdict 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).”

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

“ ‘Circumstantial evidence is not inferior evidence, and -it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala. Cr. App. 1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979).’
“Wardr v. State], 610 So.2d[ 1190,] 1191-92 [(Ala. Crim. App. 1992)].”

Lockhart v. State, 715 So.2d 895, 899 (Ala. Crim. App. 1997).

The indictment against Mogil reads as follows;

“The Grand Jury of Calhoun County charge that, before the finding of this indictment, David Martin Mogil, whose true name to the Grand Jury is otherwise unknown, did, on,or about November 19, 2014, subject an animal- to cruel mistreatment which involved the , infliction of torture to the animal, in violation of Section 13A-11-14.1 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

Section 13A-11-14.1, Ala. Code 1975, provides, in relevant part:

“(a) A person commits the crime of aggravated cruelty to animals if the person intentionally or knowingly violates Section 13A-11-14, and the act of cruelty or neglect involved the infliction of torture to the animal.
“(b) The word torture as used in this section shall mean the act of doing physical injury to an animal by the infliction of inhumane treatment or gross physical abuse meant to cause the animal intensive or prolonged pain or serious physical injury, or by causing the death of the animal.”

Section 13A-11-14(a)(1), Ala. Code 1975, provides, in relevant part, that “[a] person commits the crime of cruelty to animals if, except as otherwise authorized by law, he or she recklessly or with criminal negligence ... [sjubjects any animal to cruel mistreatment.” Section 13A-2-2, Ala. Code 1975, defines the following terms:

“(1) INTENTIONALLY. A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his purpose is to cause that result or to engage in that conduct. .
“(2) KNOWINGLY. A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.
“(3) RECKLESSLY. A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. ...
“(4) CRIMINAL NEGLIGENCE. A person acts with criminal negligence with respect to a result or to a circumstance which is. defined by statute as an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. ...”

The commentary to § 13A-2-2 states:

“In § 13A-2-2, ‘intentionally’ (subdivision (1)) and ‘knowingly' (subdivision (2)) are largely self-explanatory; further elaboration would entail semanticizing.
“ ‘Recklessly' (subsection (3)) and ‘criminal negligence’ (subsection (4)) are more difficult. A' common denominator in both is that in each instance the underlying conduct must involve a ‘substantial and unjustifiable risk’ that a result or circumstance described in the penal statute will occur or exists. The reckless offender is aware of the risk and ‘consciously disregards’ it. On the other hand, the criminally negligent offender is not aware of the risk created (‘fails to perceive’) and, therefore, cannot be guilty of consciously disregarding it. Thus, his culpability, though less than that of the reckless offender, is greater than that required for ordinary tort, or civil, negligence. The ‘substantial and unjustifiable’ character of the risk involved and the requirement of ‘gross deviation’ from the ordinary standard of care further distinguish the criminal from the mere tortfeasor.”

To establish aggravated cruelty to an animal pursuant to § 13A-11-14.1, the State first had to show that Mogil committed the underlying misdemeanor offense of cruelty to an animal pursuant to § 13A-11-14 by subjecting Coco Lily to cruel mistreatment either recklessly or with criminal negligence. Dr. Bailey, Coco Lily’s veterinarian, testified that striking a dog with a rubber hose absent a life-threatening situation amounts to cruel mistreatment. Wright and Pippen testified that they witnessed Mogil swinging a rubber hose above his head and down to the ground, that they heard a dog yelping, and that the yelping coincided with Mogil’s swinging the hose down. Johnson testified that photographs of Coco Lily taken at the veterinarian’s office showed dark striping on the dog that was not its natural coloring.

Accepting as true the evidence introduced by the State, according the State all legitimate inferences therefrom, and considering the evidence in the light most favorable to the prosecution, the State presented sufficient evidence that Mogil recklessly subjected Coco Lily to cruel mistreatment by striking her with a water hose. The jury could reasonably have found that Mogil was either aware or should have been aware that striking a dog with a water hose absent a life-threatening situation risked subjecting the animal to cruel mistreatment and that Mogil disregarded that risk. See Caldwell v. State, 615 So.2d 1280, 1283 (Ala. Crim. App. 1993)(“The reckless actor is aware of the risk and disregards it.”). Accordingly, the issue of Mogil’s guilt of the underlying offense of cruelty to an animal pursuant to § 13A-11-14 was properly submitted to the jury, and the jury might reasonably have concluded that the State’s evidence excluded every hypothesis except that of Mogil’s guilt.

To establish the felony offense of aggravated cruelty to an animal, the State next had to show that Mogil’s act of cruelty—striking Coco Lily with a water hose— involved the infliction of torture to Coco Lily. As applied to the facts of this case, the State had to show that Mogil tortured Coco Lily by physically injuring her by the infliction of inhumane treatment or gross physical abuse meant to cause her intensive or prolonged pain or serious physical injury. Section 13A-1-2, Ala. Code 1975, defines “physical injury” as “[i]mpairment of physical condition or substantial pain.” The State, however, failed to present any evidence indicating that Coco Lily suffered physical injury solely as a result of Mogil striking her with a water hose. Although Dr. Bailey testified as to injuries that Coco Lily could have hypothetically suffered as a result of being hit with a water hose, there was no direct or circumstantial evidence indicating that Coco Lily suffered physical injury because Mogil hit her with the hose. Moreover, the State’s evidence that Coco Lily suffered physical injury as a result of jumping from the balcony was not sufficient because that incident could not have served as the basis for the underlying conviction of cruelty to an animal required to sustain Mogil’s conviction for aggravated cruelty to an animal. As noted above, Mogil did not subject Coco Lily to cruel mistreatment when he walked onto the balcony before Coco Lily jumped from that balcony. Therefore, the jury could not have reasonably concluded that the State’s evidence excluded every hypothesis except that of Mogil’s guilt—specifically, that Coco Lily’s physical injuries resulted from Mogil striking her with a water hose. Accordingly, the State did not present legally sufficient evidence to sustain Mogil’s conviction for aggravated cruelty to an animal; that conviction, therefore, is due to be reversed, and a judgment of acquittal is due to be rendered in Mogil’s favor as to that charge. As noted above, however, the State did present sufficient evidence to support a conviction of cruelty to an animal pursuant to § 13A-11-14, Ala. Code 1975.

Based on the foregoing, we reverse the judgment of the trial court and render a judgment of acquittal as to Mogil’s aggravated-cruelty-to-an-animal conviction. Furthermore, we remand this case to the trial court for that court to adjudge Mogil guilty of the lesser-included offense of cruelty to an animal and to resentence Mogil accordingly.

REVERSED; JUDGMENT OF ACQUITTAL RENDERED; AND REMANDED.

Windom, P.J., and Welch and Burke, JJ., concur. Kellum, J., not sitting.

      . Mogil was given 223 days of jail credit and was ordered to serve 9 years, 142 days of probation.

      . Johnson testified that she referred to Coco Lily as "Lil.”

      . Regarding the underlying offense of cruelty to an animal, the trial court charged the jury .with respect to subsections (a)(1) and (a)(3). The indictment, however, tracks the language of § 13A-11-14(a)(1) only, and the trial court adjudicated Mogil guilty "as charged in the indictment.” (R. 440.) Therefore, we do not address whether the State presented sufficient evidence that Mogil committed cruelty to an animal under § 13A-11-14(a)(3), Ala. Code 1975.

      . We note that the State presented no evidence indicating that Mogil subjected Coco Lily to cruel mistreatment when Coco Lily jumped from the balcony. Indeed, the State concedes in its brief that “[t]he beating of the dog with the water hose is the basis for affirming the [aggravated-cruelty-to-an-animal] conviction.” (State’s brief, p. 40.)


author: PER CURIAM. LAWSON, J.,

text:
    IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION, FLORIDA RULE OF CRIMINAL PROCEDURE 3.010, AND FLORIDA RULE OF APPELLATE PROCEDURE 9.440.
    No. SC16-1062
    Supreme Court of Florida.
    [September 7, 2017]
    Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Weinstein & Cohen, P.A., Miami Lakes, Florida, Judge Steven Scott Stephens, Past Chair, Rules of Judicial Administration Committee, Thirteenth Judicial Circuit Court, Tampa, Florida, and Amy Singer Borman, Past Chair, Rules of Judicial Administration Committee, Fifteenth Judicial Circuit Court, West Palm Beach, Florida; Landis Vernon Curry III, Chair, Appellate Court Rules Committee, Hill, Ward & Henderson, Tampa, Florida, Kristin A. Norse, Past Chair, Appellate Court Rules Committee, Kynes, Markman & Felman, P.A., Tampa, Florida, and Judge T. Kent Wetherell, II, Past Chair, Appellate Court Rules Committee, First District Court of Appeal, Tallahassee, Florida; Judge Jon Berkley Morgan, Chair, Criminal Procedure Rules Committee, Kissimmee, Florida, H. Scott Fingerhut, Past Chair, Criminal Procedure Rules Committee, H. Scott Fingerhut, P.A., Miami, Florida, and Meredith Charbula, Past Chair, Criminal Procedure Rules Committee, Fourth Judicial Circuit State Attorney’s Office, Jacksonville, Florida; and John F. Harkness, Jr., Executive Director, Heather Savage Tel-fer, and Krys Godwin, Staff Liaisons, The Florida Bar, Tallahassee, Florida, for Petitioner
    Alan Abramowitz, Executive Director, Dennis W. Moore, General Counsel, Camille A Frazer, Regional Counsel, and Thomasina Moore, Statewide Guardian ad Litem Office, Tallahassee, Florida; David Margolis, General Counsel, Nicholas A. Shannin, Former General Counsel, and Tiffany Moore Russell, Clerk of Courts in and for Orange County, Orlando, Florida; Kara Ann Felton, Chair, Juvenile Court Rules Committee, Tallahassee, Florida, and Ward Lee Metzger, Past Chair, Juvenile Court Rules Committee, Jacksonville, Florida; and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, Responding with comments
   PER CURIAM.

The Court has for consideration proposed amendments to the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Rules of Appellate Procedure, and the Florida Rules of Juvenile Procedure. For the reasons explained below, we decline to adopt the proposed amendments, without prejudice to the filing of more individualized and refined proposals.

BACKGROUND

The Florida Bar’s Rules of Judicial Administration Committee, Criminal Procedure Rules Committee, and Appellate Court Rules Committee (Rules Committees) have filed a joint out-of-cycle report proposing amendments to Florida Rules of Judicial Administration 2.120 (Definitions), 2.505 (Attorneys), 2.515 (Signature and Certificates of Attorneys and Parties), and 2.516 (Service of Pleadings and Documents); Florida Rule of Criminal Procedure 3.010 (Scope); and Florida Rule of Appellate Procedure 9.440 (Attorneys). See Fla. R. Jud. Admin. 2.140(a)(7) & (e). The Florida Bar’s Rules of Judicial Administration Committee and the Bar’s Vision 2016 Commission developed the proposed amendments to the Rules of Judicial Administration that modify' how counsel appear in a case. The amendments recognize three types of representation by creating the designations of lead counsel (the attorney principally responsible for the representation of a party); additional counsel (coverage and attorneys in a law firm or governmental agency); and limited representation counsel (an attorney for a party or nonparty who provides limited representation). Each type of representation has its own rules for appearance and termination of appearance in a case. A definition of an attorney of record also is proposed, which, according to the joint report, will assist the Florida Courts Technology Commission with the access to court records security matrix. The amendments to the criminal and appellate rules are proposed by the Criminal Procedure and Appellate Court Rules Committees to address any conflicts between the proposed amendments to the Rules of Judicial Administration and those bodies, of rules and to provide needed exceptions to the general-application judicial administration rules.

The Rules Committees published their proposals for comment before filing them with the Court and made revisions to the proposals in. response to the comments they received. The Board of Governors of The Florida Bar approved all the proposed amendments. After the joint report was filed, the Court published. .the proposals for comment. The Juvenile Court Rules Committee, the Florida Guardian Ad Li-tem Program, and the Orange County Clerk of Courts filed comments. The Rules Committees filed a joint response to the comments that offers revisions to the amendments to rule 2.505 (Attorneys) in response to suggestions by the Juvenile Court Rules Committee' and concerns raised by the Guardian Ad Litem Program about the use of the proposed counsel designations in delinquency and dependency cases. After being granted leave to do so, the Juvenile Court Rules Committee filed a second comment, in which it proposes an 'amendment to Rule of Juvenile Procedure 8.000 (Scope and Purpose), which the Board of Governors approved, but which has not been published for comment. The Rules Committees filed a joint response to the second comment stating that the committees have no objection to the proposed amendment to rule 8.000.

DISCUSSION

After considering the proposed amendments, the comments filed, and the Rules Committees’ response and hearing oral argument, we decline to adopt any of the proposed amendments, without prejudice to the filing of more individualized and refined proposals that accomplish the goals stated in the joint report. As is evident from the comments filed, views expressed at oral argument, and the exceptions to the proposed counsel classifications and attendant procedures that had to be included in the various bodies of rules, how counsel appear in a case and different attorneys’ level of involvement in a case vary among practice areas and the different courts throughout this state. While.the attempt to develop.one body of comprehensive rules that classifies different types of representation and governs,.how attorneys appear and terminate an appearance in a case is laudable, we believe more refined rules that address these matters for each of the various practice areas should be considered; and there should be more active involvement of and communication between all the affected rules committees before new proposals are finalized.

We also are concerned that the attempt to merge the work of the Vision 2016 Commission concerning limited representation counsel for pro se litigants with the work of the Rules of Judicial Administration Committee in developing classifications and procedures for the lead and additional counsel designations and a definition of attorney of record resulted in confusing procedures when there is both a lead and a limited representation counsel in a case, a situation contemplated by the proposed Committee Note to rule 2.505. See, e.g., proposed new Rules Jud. Admin. 2.505(g)(3)(C) (providing that, during a limited representation, all filed documents be served on the limited representation counsel and the party, with no mention of serving lead counsel should there be one); 2.516(b)(1)(F) (same); and 2.515(a) (providing an exception to the requirement of having an attorney’s signature and certificate for documents filed outside the scope of limited representation counsel’s representation, without taking into account a case with both lead and limited representation counsel).

Finally, we also believe that the concerns identified in the joint report about attorneys appearing in a case being recognized as attorney of record for purposes of the clerk’s office case maintenance system and remote access to case records as allowed under the Standards for Access to Electronic Court Records and Access Security Matrix can be addressed in a more focused manner with input from the Florida Courts Technology Commission and Florida Association of Court Clerks and Comptrollers. In the meantime, attorneys who wish to have remote access to court records in a given case and to ensure proper e-mail service should file a notice of appearance in any case in which they provide representation.

Accordingly, we decline to adopt the proposed amendments, without prejudice to future proposals in accordance with this opinion.

It is so ordered.

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

LAWSON, J., concurs specially with an opinion.

LAWSON, J.,

specially concurring.

I write separately to note this Court’s appreciation for the many hours of hard work volunteered by members of these committees, as reflected in the rule proposals, and to suggest a refinement that would address my primary concern. That concern, also alluded to in the majority opinion, is potential confusion stemming from use of the “limited representation counsel” designation, with its special rules, in a case where the litigant is represented by other counsel of record. The concerns raised by appellate practitioners, which prompted this change to the original Vision 2016 Commission’s proposal, could instead be addressed by adding another designation for “additional special counsel.” That designation would apply only when there is already counsel of record and could have its own separate rules that allow the appearance with consent of a sponsoring lead or additional counsel (without the need for a signature by the client). Additional special counsel could then be allowed to withdraw, without leave of court, by filing his or her own notice of withdrawal, or upon notice filed by the sponsoring lead or additional counsel. The additional special counsel designation could also be used to address the practice of “coverage counsel” in criminal cases. The committees may have considered something like this and rejected it for reasons not readily apparent to me. But, this approach would appear to address the valid points made by appellate specialists retained to provide litigation assistance, and by criminal practitioners, while still implementing the good work of the Vision 2016 Commission aimed at assisting unrepresented litigants.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA RULES OF APPELLATE PROCEDURE.
    No. SC16-1377
    Supreme Court of Florida.
    [September 7, 2017]
    Landis Vernon Curry III, Chair, and Kristin A. Norse, Past Chair, Appellate Court Rules Committee, Tampa, Florida; and John F. Harkness, Executive Director, and Heather Savage Telfer, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
    Honorable Cory J. Ciklin, Chief Judge, Fourth District Court of Appeal, -West Palm Beach, Florida; Honorable L. Clayton Roberts, Chief Judge, First District Court of Appeal, Tallahassee, Florida; and Cassandra Snapp of Law Offices of Mark L. Horwitz, Orlando, Florida, Responding with Comments
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Appellate Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(f).

BACKGROUND

The Florida Bar’s Appellate Court Rules Committee (Committee) has filed an out-of-cycle report proposing amendments to seven Florida Rules of Appellate Procedure (Rules). The proposals were submitted following the Court’s opinion in In re Amendments to Rule of Appellate Procedure 9.200, 177 So.3d 1254 (Fla. 2015). In that case, we adopted amendments to rules 9.200 (The Record) and 9.210 (Briefs) to address mandatory statewide electronic records on appeal. Id. at 1255. However, we declined to adopt amendments to rules 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal) and 9.220 (Appendix) because those changes were beyond the scope of the case then before us. Id. at 1256. Our opinion invited the Committee to file an out-of-cycle report proposing rule amendments; we also asked the Committee to consider “the question of how a defective electronic record on appeal shall be corrected—as opposed to merely supplemented—after transmission to the appellate court and whether, and if so how, the appellate rules should address the provision of the record on appeal to the parties to a case.” Id.

The Committee here proposes amendments to rules 9.020 (Definitions), 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal), 9.141 (Review Proceedings in Collateral or Post-conviction Criminal Cases), 9.160 (Discretionary Proceedings to Review Decisions of County Courts), 9.180 (Appeal Proceedings to Review Workers’ Compensation Cases), 9.200 (The Record), and 9.220 (Appendix). The Board of Governors of The Florida Bar unanimously approved the proposals. After the Committee filed its report with the Court, we published the proposed amendments for comment. The Court received comments from the Fourth District Court of Appeal, joined by the First District Court of Appeal, and from Attorney Cassandra Snapp. The Committee filed a response to the comments that includes a revised rule proposal.

After fully considering the Committee’s report, the comments, and the response, we adopt the proposed amendments with some modifications, as addressed in .this opinion. We discuss the more significant rule amendments below.

AMENDMENTS

First, we amend rule 9.020 (Definitions), as proposed by the Committee, to add a new subdivision (l) defining the term “E-filing System' Docket.” This term is defined as the docket where attorneys and those parties who are registered users of the court’s e-filing system can view electronic documents filed in a case.

Next, we amend rule 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal) in subdivision (e) (Accepting or Postponing Decision on Jurisdiction; Record) to address the format for the electronic record on appeal transmitted to this Court. As amended, the rule requires' the clerks of the district courts of appeal to electronically transmit the record to this Court as separate PDF files- for (1) the contents of record, (2) the transcript, and .(3) any documents filed in the district court. We have revised the Committee’s proposal in subdivision (e)(3) to. require the clerks to transmit documents filed in the district court in the “record on, appeal” format described, in rule 9.200(d)(1).

We have made several amendments to rule 9.200 (The Record). First, in subdivision (d), renamed “Preparation and Transmission of Electronic Record,” we add a new subdivision (d)(4), which provides that the court shall upload the electronic record to the “e-filing system docket.” Attorneys and parties who are registered users of the court’s e-filing system may download the electronic record in their cases. Additionally, we amend subdivision (f) (Correcting and Supplementing Record) to add a new subdivision (f)(3) authorizing a court, if it finds that the record is not in compliance with the requirements of rule 9.200, to direct the clerk of a lower tribunal to submit a compliant record, which will replace the noncompliant record. The Committee indicates-in its report that subdivision (f)(3) is intended to apply to records that are riot in compliance with the technical and formatting requirements in rule 9.200(d), for example, records that are not text searchable, correctly paginated, or bookmarked; it states that substantive corrections should be made through a supplement to the record, rather than as a wholesale replacement of the record. Accordingly, we have revised the Committee’s proposal in subdivision (f)(3) to expressly, reference, records that are “not in compliance with the requirements of subdivision (d)” of rule 9.200.

Finally, we have made several amendments to rule 9.220 (Appendix) to parallel amendments to rule 9.200 adopted in In re Amendments to Rule of Appellate Procedure 9.200, 177 So.3d 1254. Among other changes, we amend existing subdivision (c) to create new subdivisions (c) (Electronic Format) and (d) (Paper Format). New subdivision (c) (Electronic Format) provides that the appendix shall be prepared and filed electronically as a separate, single PDF file, unless size limitations or technical requirements established by the Florida Supreme Court Standards for Electronic Access to the Courts would require multiple files. The appendix must be properly indexed and consecutively paginated, beginning with the cover page as page one. Additionally, subdivisions (c)(1) through (c)(4) require that the PDF file be text searchable; paginated, so that the page numbers displayed by the PDF reader match the pagination of the index; bookmarked, consistently with the index, such that each bookmark includes the date and name of the document it references, and directs to the first page of the document; and not contain condensed transcripts unless authorized by the. court. New subdivision (d) (Paper Format) provides that, if a paper appendix is authorized, it must be submitted separately from the petition, brief, motion, response, or reply that it accompanies.

CONCLUSION

Accordingly, we amend the Florida Rules of Appellate Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective October 1, 2017, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 9.020. DEFINITIONS

The following terms have the meanings shown as used in these rules:

(a)-(k) [No Change]

(l) E-filing System Docket. The docket where attorneys and those parties who are registered users of the court’s electronic filing (e-filing) system can view the electronic documents- filed in their case(s).

Committee Notes

[No Change]

Court Commentary

[No Change]

RULE 9.120. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL

(a)-(d) [No Change]

(e) Accepting or Postponing Decision on Jurisdiction; Record. If the supreme court accepts or postpones decision on jurisdiction, the court shall so order and advise the parties and the clerk of the district court of appeal. Within 60, days thereafter or such other time .set by the court, the clerk shall electronically transmit the record. The clerk shall transmit separate Portable Document Format (“PDF”) files of:

(1) the contents of the record as described in rule 9.200(a) and (c);
(2) the transcript as described in rale 9.200(b); and
(3) the documents filed in the district court in the record on appeal format described in rule 9.200(d)(1).

(f)[No Change]

Committee Notes

[No Change]

RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL OR POST-CONVICTION CRIMINAL CASES

(a) [No Change]

(b) Appeals from Postconviction Proceedings Under Florida Rule of Criminal Procedure 3.800(a), 3.801, 3.802, 3.850, or 3.853.

(1)—(2) [No Change]
(3) Grant or Denial of Motion after an Evidentiary Hearing was Held on One or More Claims.
(A) [No Change]
(B) Record.
(i) [No Change]
(ii) Appellant may direct the clerk to include in the record any other documents that were before the lower tribunal at the hearing. ■If-the-clerk-is-directed to include in the record a previously prepared'appellate-record involving the appellant, the-clerk need not-remdex-or repaginate it.
(iii) [No Change]
(C) [No Change]

(c)-(d) [No Change]

Committee Notes

[No Change]

RULE 9.160. DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF COUNTY COURTS

(a)-(f) [No Change]

(g) Record. The record shall be prepared and filedtransmitted in accord with rule 9.110(e) or 9.140(f), depending on the nature of the appeal.

(h)-(j) [No Change]

Committee Notes

[No Change]

RULE 9.180. APPEAL PROCEEDINGS TO REVIEW WORKERS’ COMPENSATION CASES

(a)-(b) [No Change]

(c) Jurisdiction of Lower Tribunal.

(1) [No Change]

(2) Settlement. At any time before the record on appeal is filedtransmitted withto the court, the lower tribunal shall have the authority to approve settlements or correct clerical errors in the order appealed.

(3) Relinquishment of Jurisdiction by Court to Consider Settlement. If, after the record on appeal is filedtransmit-ted, settlement is reached, the parties shall file a joint motion stating that a settlement has been reached and requesting relinquishment of jurisdiction to the lower tribunal for any necessary approval of the settlement. The court may relinquish jurisdiction for a specified period for entry of an appropriate order. In the event the Division of Workers’ Compensation has advanced the costs of preparing the record on appeal or the filing fee, a copy of the joint motion shall be furnished to the division by the appellant.

(A)-(B) [No Change],

(d)-(e) [No Change]

(f) Record Contents: Final Orders.

(1)—(6) [No Change]

(7) Preparation, Certification, and TransmittalTransmission of the Record. The deputy chief judge of compensation claims shall designate the person to prepare the record. The clerk of the office of the judges of compensation claims shall supervise the preparation of the record. The record shall be deliveredtransmitted to the lower tribunal in sufficient time for the lower tribunal to review the record and seadtransmit it to the court. The lower tribunal shall review the original record, certify that it was prepared in accordance with these rules, and within 60 days of the notice of appeal being filed transmit the record to the court. The lower tribunal shall provide an electronic image copy of the record to all counsel of record and all unrepresented parties.

(8)—(9) [No Change]

(g)-(i) [No Change]

Committee Notes

[No Change]

RULE 9.200. THE RECORD

(a)-(c) [No Change]

(d) Duties-of- Clerk; Preparation and TransmittalTransmission of Electronic Record.

(1) The clerk of the lower tribunal shall prepare the record as follows:

(A)The clerk of the lower tribunal shall assemble the record on appeal and prepare a cover page and a complete index to the record. The cover page shall include the name of the lower tribunal, the style and number of the case, and the caption RECORD ON APPEAL in 48-point bold font. Consistent with Florida Rule of Judicial Administration 2.420(g)(8), the index shall indicate any confidential information in the record and if the information was determined to be confidential in an order, identify such order by date or docket number and record page number. The clerk of the lower tribunal shall not be required to verify and shall not charge for the incorporation of any transcript(s) into the record. The transcript of the trial shall be kept separate from the remainder of the record on appeal and shall not be renumbered by the clerk. The progress docket shall be incorporated into the record immediately after the index.

(B)All pages of the remainder of the record shall be consecutively numbered. Any transcripts other than the transcript of the trial shall continue the pagination of the record pages. Supplements permitted after the clerk of the lower tribunal has transmitted the record to the court shall be submitted by the clerk as separate Portable Document Format (“PDF”) files in which pagination is consecutive from the original record and continues through each supplement.

(C)[No Change]

(2)-(3) [No Change]

(4) The court shall upload the electronic record to the electronic filing (e-filing) system docket. Attorneys and those parties who are registered users of the court’s e-filing system may download the electronic record in their case(s).

(e) [No Change]

(f) Correcting and Supplementing Record.

(l)-(2) [No Change]

(3) If the court finds that the record is not in compliance with the requirements of subdivision (d) of this rule, it may direct the clerk of the lower tribunal to submit a compliant record, which will replace the previously filed noncompliant record.

Committee Notes

1977-2014 Amendments. [No Change]

2015. Amendment. The amendments in In re Amendments to Rule of Appellate Procedure 9.200, 164 So.3d 668 (Fla. 2015), do not modify the clerk’s obligation to transmit a separate copy of the index to the parties, pursuant to Rrule 9.110(e). RULE 9.220. APPENDIX

(a) [No Change]

(b) Contents. The appendix shall contain a coversheet, an index, a certificate of service, and a conformed copy of the opinion or order to be reviewed and may contain any other portions of the record and other authorities. Asterisks should be used to indicáte omissions in documents or testimony of witnesses. The cover sheet shall state the name of the court, the style of the cause, including the case number if assigned, the party on whose behalf the appendix is filed, the petition, brief, motion, response, or reply for which the appendix is served, and the name and address of the attorney, or pro se party, filing the appendix,

(c) Electronic Format. XMess-other-wise authorized by court.order-.or- court rule,-the-appendix shall-be-prepared and filed- electronically with.the-clerk-as-an independent PDF-fíle or a-series of independent-P-DF-files.- The appendix shall be prepared and filed electronically as a separate Portable Document Format (“PDF”) file. The electronically filed appendix shall be filed as 1 document, unless size limitations or technical requirements established by the Florida Supreme Court Standards for Electronic Access to the Courts require multiple parts. The appendix shall be properly indexed and consecutively paginated, beginning with the cover sheet as page 1. The PDF file(s) shall:

(1) be text searchable;

(2) be paginated so that -the page numbers displayed by the PDF reader exactly match the pagination of the index;

(3) be bookmarked, consistently with the index, such that each bookmark states the date, name of the document which it references, and directs to the first page of that document. All bookmarks must be viewable in a separate window; and

(4) not contain condensed transcripts, unless authorized by the court.

(d)' Paper Format. When a paper appendix is authorized, it shall be separately bound orseparated from the petition, brief, motion, response, or reply by a divider and appropmte-tabrand-the following-requirements -shall.apply: (1) if th& appendia-in-cludes—-documents—filed—before January 1991 on paper measarmg-⅜½-by 14--inches, the-documents-should- be reduced in copyIng- to-Rya-by-l-lr-mcheSy-if-practicable; and dix may-measure ■ 8½ by 14 inches,-■but-it should-be-bound-separatelyfrom-the-docu-mentthat it accompanies. The appendix shall be consecutively paginated, beginning with the cover sheet as page l.'In addition, the following requirements shall apply:

(1) if the appendix includes documents filed before January 1991 on paper measuring 8½ by 14 inches, the documents should be reduced in copying to 8½ by 11 inches, if practicable; and

(2) if reduction is impracticable, the appendix may measure 8½ by 14 inches, but ■must be separated from the 8½ by 11-inch document(s) that it accompanies.

Committee Notes

[No Change]

      . The Committee’s original proposal in subdivision (e)(3) referred to the "record on appeal format described in rule 9.200(a) and (c),” Because it appears the Committee intended to require that the third PDF file submitted to this Court include documents filed in the district courts of appeal in the “record on appeal format"—namely, the indexing, text'searching, bookmarking, and pagination requirements' outlined'in rule-9.200(d)(1)—we have revised the Committee's proposal to -instead refer to rule 9.200(d)(1).

      . We amend rule 9.210 in new subdivisions (c) and (d) consistent with the Committee’s revised proposal, submitted in its response to the comments from the Fourth .District Court of Appeal, joined by the First District Court of Appeal.


author: Per Curiam.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR FREMONT HOME LOAN TRUST 2006-3, ASSET-BACKED CERTIFICATES, SERIES 2006-3, Appellant, v. Lisa Ann DOWD a/k/a Lisa A. Dowd, Appellee.
    No. 4D16-588
    District Court of Appeal of Florida, Fourth District.
    [March 15, 2017]
    Sara F. Holladay-Tobias and C.H. Houston, III of McGuireWoods LLP, Jacksonville, for appellant.
    Evan M. Rosen of the Law Offices of Evan M. Rosen, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

On appeal from mortgage foreclosure proceedings, a bank challenges the trial court’s order involuntarily dismissing its case against a borrower based on its determination that the bank failed to prove its standing to foreclose. After reviewing the record, we determine the bank presented competent, substantial evidence that it possessed the blank-endorsed note at the time suit was filed and thereby demonstrated that it had standing to foreclose at the inception of the suit. See Bolous v. U.S. Bank Nat'l Ass’n, 41 Fla. L. Weekly D2448, 210 So.3d 691, 2016 WL 6476320 (Fla. 4th DCA Nov. 2, 2016); Deutsche Bank Nat’l Trust Co. v. Marciano, 190 So.3d 166 (Fla. 5th DCA 2016).

We therefore reverse and remand for reinstatement of the final judgment of foreclosure.

Reversed and remanded with instructions;

Ciklin, C.J., Damoorgian and Gerber, JJ., concur.


text:
    Rena GREEN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D16-1013
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]

      Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach and Jeffrey M. Liggio and Geoff S. Stahl of Liggio Law, West Palm Beach, for appellant.
    Tracy T. Segal of Akerman LLP, West Palm Beach and Marcy Levine Aldrich and Nancy A. Copperthwaite of Akerman LLP, Miami, for appellee.
   Per Curiam.

Appellant’s declaratory judgment complaint challenging State Farm’s methodology for calculating PIP policy medical reimbursements was dismissed for failure to state a claim. Because we recently held in Northwest Center for Integrative Medicine and Rehabilitation, Inc. v. State Farm Mutual Automobile Insurance Company, 214 So.3d 679, 42 Fla. L. Weekly D446, 2017 WL 697775 (Fla. 4th DCA Feb. 22, 2017) that this reimbursement issue has not been conclusively resolved, we reverse for further proceedings.

Appellant had an automobile policy with PIP benefits from State Farm. She was in an accident and treated by medical providers. State Farm paid a portion of the providers’ charges and the providers billed appellant for the remainder.

As we understand it, appellant sought a declaratory judgment that State Farm relied exclusively on the Medicare fee schedules when determining the reasonable amount to reimburse her medical providers, even though State Farm failed to elect this method of reimbursement in her policy. Appellant requested that State Farm be ordered to reimburse the class members for the amounts they were billed by their providers.

Pursuant to section 627.736, Florida Statutes (2011), an insurer may elect one of two methods to calculate PIP medical reimbursements: “(a) it can pay a reasonable amount consistent with subsection (5)(a)(1) of the statute; or (b) it can elect to apply the Medicare fee schedules, as set forth in subsection (5)(a)(2) of the statute.” Nw. Ctr., 214 So.3d at 682, 42 Fla. L. Weekly, at *1. However, to exercise the second option, “the insurer must provide notice in the policy of its election to use the fee schedules.” Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147, 159 (Fla. 2013).

If an insurer elects the Medicare fee schedule method, the PIP statute prohibits the medical services provider from billing or attempting to collect from the insured any amount exceeding the payment made from the insurer, also known as “balance billing.” § 627.736(5)(a)5.

It is undisputed that State Farm did not elect the Medicare fee schedule method in appellant’s insurance policy. Appellant alleged in her complaint that despite electing to reimburse her medical providers a reasonable amount, State Farm was relying exclusively on the Medicare fee schedules as the basis for reimbursement. Because State Farm failed to provide notice of its election to use the Medicare fee schedules, appellant asserted she was improperly subjected to balance billing by her providers.

State Farm moved to dismiss the complaint, making the circular argument that because the policy did not elect the Medicare fee schedule method, appellant’s allegation that State Farm had elected that method without notice failed to state a claim. Additionally, State farm argued the action was inappropriate for class relief.

The trial court granted State Farm’s motion, finding that after “[a] review of the language of State Farm’s policy,” it was “clear that State Farm did not make a policy election to limit reimbursements pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012) in the policy.” Therefore, appellant’s theory, which was “based on such an election—fail[ed] to state a cognizable claim for relief.” Moreover, because State Farm did not elect to utilize the Medicare fee schedules, the statutory protection against balance billing did not apply.

“We review an order dismissing a complaint for declaratory judgment for an abuse of discretion, although ‘the complaint’s allegations and all reasonable inferences from them must be accepted as true.’” Northwest Center, 214 So.3d at 681, 42 Fla. L. Weekly, at *3 (quoting Acad. Express, LLC v. Broward Cty., 53 So.3d 1188, 1190 (Fla. 4th DCA 2011)). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” N & D Holding, Inc. v. Town of Davie, 17 So.3d 819, 820-21 (Fla. 4th DCA 2009) (internal citation omitted). Moreover, “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” § 86.111, Fla. Stat. (2015).

As noted above, under section 627.736, there are two available methods for an insurer to calculate policy medical reimbursements. Subsection (5)(a)(1) allows the insurer to reimburse a “reasonable amount pursuant to this section for the services and supplies rendered.” “[Reasonableness is a fact-dependent inquiry determined by consideration of various factors.” Geico Gen. Ins. Co., 141 So.3d at 155-56 (emphasis added). Typically, State Farm’s policies broadly define the scope of a “reasonableness” inquiry. See Nw. Ctr., 214 So.3d at 680-81, 42 Fla. L. Weekly at *1-*2.

Alternatively, subsection (5)(a)(2) permits insurers to limit reimbursement to 80% of the maximum charges allowed by the Medicare Part B fee schedules. Geico Gen. Ins. Co., 141 So.3d at 154. If an insurer elects this method in its policy, the medical provider is limited to the reimbursement paid by the insurer and cannot bill the patient. § 627.736(5)(a)5.

Herd, appellant was seeking a declaration that State Farm relied exclusively on the Medicare fee schedules when determining the reasonable amount to reimburse her providers. A similar issue was raised by medical providers who received reimbursement from State Farm. See Nw. Ctr., 214 So.3d 679, 42 Fla. L. Weekly D446.

In Northwest, the medical providers brought a claim for declaratory judgment that “State Farm’s calculation of PIP policy medical reimbursements [was] based solely on Medicare fee schedules, where the insurance policy did not provide notice that the insurance company elected to apply the fee schedules pursuant to section 627.736(5)(a)(2), Florida Statutes (2009).” Id. at 680, at *1. The trial court dismissed the complaint for failure to state a cause of action. Id. at 681, at *3. We held that the proper methodology for calculating reimbursements under subsection (5)(a)(1)-and whether the Medicare fee schedules could be solely relied on had not been addressed by prior cases and reversed for reinstatement of the claim. Id.

In the present case, the trial court’s dismissal for failure to state a claim relied heavily on the rationale discussed, by the trial. court in Northwest, Because the question presented here regarding State Farm’s actual practice is essentially the same as in Northwest, we again reverse for reinstatement of the claim. Appellant should be given leave to amend her claim after remand for declaratory relief to seek relief similar to that approved of in Northwest Center.

We note that the relief appellant requested was inappropriate because -she agreed to balance billing in her policy. Under her best case scenario, the problem is not that she was billed by the provider, but that she was billed a higher amount because State,Farm did not reimburse a reasonable amount. If appellant prevails on her declaratory relief action and establishes that State Farm relied only on the Medicare fee schedules, a determination of the proper relief would be a . multi-step process. First, it would be necessary to determine a “reasonable amount” for the medical services or supplies provided. It may be that the amount specified in the Medicare fee schedule is reasonable under the statute. If the reasonable amount owed is greater than the fee schedule amount, appellant would be entitled to recover the difference to partially compensate her for what she, was balance-billed by the provider.

On remand, if appellant prevails on the claim for declaratory relief, it will be necessary to address the class action issue as it applies to the question of appropriate relief. The court shall consider the applicability of, any notice requirement under the PIP statute. The court should also consider whether a class action is untenable because individual issues would predominate and whether a class'action is precluded because of manageability issues.

Reversed and remanded for reinstatement of the complaint and for farther proceedings thereon.'

Oiklin, C.J., Gross and Conner, JJ., concur.