author: KELLUM, Judge.

text:
    David Dewayne RILEY v. STATE of Alabama
    CR-16-0207
    Court of Criminal Appeals of Alabama.
    February 9, 2018 Rehearing Denied April 20, 2018 Certiorari Denied August 24, 2018
    Alabama Supreme Court 1170728
    Gregory W. Gardner, Boulder, Colorado; and J.D. Lloyd, Birmingham, for appellant.
    Steve Marshall, atty. gen., and Jon B. Hayden, asst. atty. gen., for appellee.
   KELLUM, Judge.

David Dewayne Riley appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder conviction and sentence of death.

Facts and Procedural History

In 2007, Riley was convicted of murder made capital because it was committed during the course of a robbery. See § 13A-5-40(a)(2), Ala. Code 1975. The jury unanimously recommended that Riley be sentenced to death for his capital-murder conviction, and the trial court followed the jury's recommendation and sentenced Riley to death. On appeal, this Court reversed Riley's conviction and sentence on the ground that the trial court had erred in not instructing the jury that evidence about Riley's prior convictions could not be considered as substantive evidence of guilt but could be used only for the purpose of determining Riley's credibility as a witness. Riley v. State, 48 So.3d 671 (Ala. Crim. App. 2009) (" Riley I"). Riley was retried in 2011 and was again convicted of murder made capital because it was committed during the course of a robbery. The jury again unanimously recommended that Riley be sentenced to death, and the trial court again followed the jury's recommendation and sentenced Riley to death. This Court affirmed Riley's conviction and sentence. Riley v. State, 166 So.3d 705 (Ala. Crim. App. 2013) (" Riley II"). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on November 21, 2014. The United States Supreme Court also denied certiorari review. Riley v. Alabama, 575 U.S. ----, 135 S.Ct. 2327, 191 L.Ed.2d 991 (2015). The facts of the crime are fully set out in our opinion in Riley II and need not be repeated here.

On November 13, 2015, Riley, acting pro se, timely filed the instant Rule 32 petition, raising numerous claims of ineffective assistance of trial counsel. He simultaneously filed a motion for the appointment of counsel. On November 19, 2015, the circuit court directed Riley to file an amended petition that complied with the requirements in Rule 32.6(a), Ala. R. Crim. P., specifically, to file an amended petition using the form found in the appendix to Rule 32. On November 20, 2015, the circuit court granted Riley's request for counsel and appointed counsel to represent him (hereinafter "Rule 32 counsel"). On November 23, 2015, Riley, again acting pro se, filed an amended petition; that petition included the form found in the appendix to Rule 32 and asserted the same claims as his original petition. That same day, Rule 32 counsel filed a notice of appearance. On December 22, 2015, the circuit court issued an order scheduling an evidentiary hearing on Riley's petition for June 28, 2016. On December 28, 2015, the State filed an answer and a motion to dismiss Riley's petition, arguing that all of Riley's claims were either insufficiently pleaded or meritless. On December 30, 2015, the circuit court issued an order setting the State's answer and motion to dismiss for a hearing at the same time as the previously scheduled evidentiary hearing.

On June 14, 2016, Rule 32 counsel filed a motion to continue the evidentiary hearing scheduled for June 28, 2016. The circuit court granted the motion, and the evidentiary hearing was conducted on July 19, 2016. At the hearing, Rule 32 counsel presented argument regarding some of the claims in Riley's petition and the parties stipulated to the contents of the record from Riley's direct appeal, but Rule 32 counsel presented no other evidence in support of the claims in Riley's petition. At the request of the State, the circuit court permitted the parties to file post-hearing briefs and/or proposed orders, and on August 29, 2016, the State filed a proposed order. At some point not readily discernible from the record, Riley secured new counsel from out-of-state to represent him pro bono (hereinafter "pro bono counsel") and on September 19, 2016, pro bono counsel filed a notice of appearance and a verified application for admission to practice law in Alabama pro hac vice as pro bono counsel for the purpose of representing Riley in the Rule 32 proceedings. The record contains no ruling by the circuit court on pro bono counsel's request for admission pro hac vice.

On September 20, 2016, Rule 32 counsel filed a motion to withdraw on the ground that Riley had secured other counsel to represent him; the circuit court denied the motion. On September 26, 2016, pro bono counsel filed a "Motion for Adequate Opportunity to Litigate Claims in Rule 32 Petition," in which pro bono counsel requested that the circuit court allow Rule 32 counsel to withdraw; continue the Rule 32 proceedings to allow pro bono counsel time to investigate, to file a second amended petition, and to request discovery; and to then allow Riley an opportunity to present evidence at a second evidentiary hearing. (C. 203.) Pro bono counsel argued in the motion that Rule 32 counsel had been ineffective in representing Riley during the Rule 32 proceedings, that a Rule 32 petitioner in Alabama is entitled to the effective assistance of counsel in Rule 32 proceedings, and that, therefore, Riley was entitled to, essentially, restart the Rule 32 proceedings with pro bono counsel representing him. Also on September 26, 2016, Rule 32 counsel filed a second motion to withdraw from representing Riley and a motion for an extension of time to file a response to the State's proposed order. On September 27, 2016, the circuit court issued an order denying pro bono counsel's motion to restart the Rule 32 proceedings, denying Rule 32 counsel's motion to withdraw, and granting Rule 32 counsel's motion for an extension of time. On October 6, 2016, Rule 32 counsel filed a response to the State's proposed order.

On October 13, 2016, the circuit court issued an order denying Riley's Rule 32 petition. The circuit court adopted by reference the findings in the State's proposed order, a copy of which the court attached to its order, and made additional findings regarding two of the claims raised in Riley's petition. The circuit court found that Riley had failed to prove his claims at the evidentiary hearing, had abandoned his claims at the evidentiary hearing by failing to present any evidence, and/or that Riley's claims were meritless. On November 14, 2016, Rule 32 counsel filed a motion to reconsider the circuit court's ruling, arguing that the circuit court had erred in denying Riley's claims of ineffective assistance of counsel, and filed a third motion to withdraw. That same day, pro bono counsel also filed a motion to reconsider, arguing that the circuit court had erred in adopting the State's proposed order and in not allowing Riley to amend his petition after the evidentiary hearing when, he said, Riley's Rule 32 counsel had been ineffective. The motions to reconsider were denied by operation of law the day they were filed. See Loggins v. State, 910 So.2d 146, 148-49 (Ala. Crim. App. 2005).

Standard of Review

" 'The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.' Davis v. State, 9 So.3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.' Wilson v. State, 644 So.2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that '[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' "

Wilkerson v. State, 70 So.3d 442, 451 (Ala. Crim. App. 2011).

"[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.' " Boyd v. State, 913 So.2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992) ). However, "[w]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). "On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So.3d 418, 424 (Ala. Crim. App. 2008).

Analysis

I.

Riley contends that the circuit court erred in adopting verbatim the State's proposed order as its order denying his petition. (Issue IV.B. in Riley's brief.) Specifically, Riley argues that the circuit court's adoption of the State's proposed order, in and of itself, establishes that the court's order was not a product of its own independent judgment.

This issue was not properly preserved for this Court's review. Although this issue was raised in pro bono counsel's motion to reconsider, it was not raised in Rule 32 counsel's motion to reconsider. As noted above, the record contains no ruling by the circuit court on pro bono counsel's motion for admission pro hac vice. The Alabama Supreme Court has held that documents filed by a foreign attorney who has not been granted pro hac vice status are a nullity. See Black v. Baptist Med. Ctr., 575 So.2d 1087, 1089 (Ala. 1991). "The general rules of preservation apply to Rule 32 proceedings." Boyd v. State, 913 So.2d 1113, 1123 (Ala. Crim. App. 2003). See also Slaton v. State, 902 So.2d 102, 107-08 (Ala. Crim. App. 2003) (holding that claim that the circuit court erred in adopting State's proposed order was not preserved for review when it was never presented to the circuit court).

Moreover, even if this issue had been properly preserved for review, it is meritless. Contrary to Riley's belief, "Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous." McGahee v. State, 885 So.2d 191, 229-30 (Ala. Crim. App. 2003). "[T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court." Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only "when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court's independent judgment" will the circuit court's adoption of the State's proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).

Riley points to nothing in the record that indicates that the circuit court's order was not the product of its own judgment, and, after thoroughly reviewing the record, we conclude that the circuit court's findings in this case were its own and were not merely an unexamined adoption of the proposed order submitted by the State. Unlike in Ex parte Ingram, supra, in which the circuit judge made patently erroneous statements that he had personal knowledge of the case and had " 'presided over Ingram's capital murder trial and personally observed the performance of both lawyers throughout Ingram's trial and sentencing,' " when, in fact, he had not, 51 So.3d at 1123 (citation and emphasis omitted), the circuit court's order here contains no such patently erroneous statements. In addition, unlike in Ex parte Scott, 262 So.3d 1266, ---- (Ala. 2011), in which the circuit court adopted verbatim as its order the State's answer to the petition, which, "by its very nature, is adversarial and sets forth one party's position in the litigation," the court here adopted the State's proposed order, not the State's answer. Moreover, the circuit court did more than simply adopt the State's proposed order, it also made additional findings regarding two of Riley's claims.

After carefully examining the record, we find no error on the part of the circuit court in adopting the State's proposed order.

II.

Riley also contends that the circuit court erred in refusing to allow pro bono counsel an opportunity to investigate his case and to file a second amended petition on his behalf and without then conducting an evidentiary hearing on that second amended petition. (Issues I and IV.A. in Riley's brief.) This issue is also not properly before this Court for review because it was not properly raised in the circuit court. Pro bono counsel raised this issue in his "Motion for Adequate Opportunity to Litigate Claims in Rule 32 Petition" and his postjudgment motion to reconsider. However, because the record contains no ruling by the circuit court granting pro bono counsel pro hac vice status, those filings are a nullity. See Black v. Baptist Medical Center, 575 So.2d 1087, 1089 (Ala. 1991). Rule 32 counsel never raised this issue in the circuit court.

In any event, even if this issue had been properly raised in the circuit court, it is meritless. Riley makes two interrelated arguments regarding the circuit court's refusal to allow pro bono counsel an opportunity to investigate Riley's case and to file a second amended petition on his behalf and to conduct an evidentiary hearing on that second amended petition. We address each in turn.

A.

First, Riley argues that the circuit court summarily dismissed his petition without an evidentiary hearing and that because pro bono counsel filed a motion to restart the proceedings and to amend the petition before the circuit court summarily dismissed the petition, there would have been no undue prejudice or undue delay in permitting pro bono counsel time to investigate and to file a second amended petition on Riley's behalf. This argument is meritless.

According to Riley, the circuit court's citations throughout its order to Rule 32.7 (d) instead of Rule 32.9 (d), clearly establish that the court's order was a summary dismissal of his claims without an evidentiary hearing on the ground that his claims were not sufficiently pleaded. We have carefully examined the circuit court's order, and it is clear and unambiguous-the circuit court denied Riley's petition on the grounds that he had failed to satisfy his burden of proof, that he had abandoned his claims at the evidentiary hearing by failing to present any evidence to support them, and/or that his claims were meritless. Throughout the order, the circuit found that Riley had "failed to present any evidence," had "failed to demonstrate" ineffectiveness, or had "failed to present any witnesses." Although the circuit court did mention, when addressing one of Riley's numerous claims, that the claim was based on conclusory allegations, the court ultimately denied that claim on the ground that Riley had failed to present any evidence at the evidentiary hearing to support the claim, not on the ground that it was insufficiently pleaded. Other than this single reference to conclusory allegations, the circuit court did not otherwise mention in its order the burden of pleading or state that Riley had not pleaded sufficient facts. Contrary to Riley's apparent belief, citation errors do not alter the nature of a circuit court's findings. Despite the erroneous citations to Rule 32.7 (d), the circuit court's order was clearly an order denying Riley's petition pursuant to Rule 32.9(d).

Riley also argues that the hearing conducted on July 19, 2016, was not an evidentiary hearing because neither the State nor Rule 32 counsel presented any evidence at the hearing. The State, however, has no burden of proof in Rule 32 proceedings; therefore, its failure to present evidence at the July 19, 2016, hearing does not mean that the hearing was not an evidentiary hearing. Moreover, the fact that Rule 32 counsel presented no evidence at the hearing also does not mean that the hearing was not an evidentiary hearing. Indeed, Rule 32 counsel's failure to present evidence at the hearing is one of the grounds for Riley's argument, addressed in Part II.B. of this opinion, infra, that his Rule 32 counsel was ineffective. Riley cannot simultaneously argue that no evidentiary hearing was conducted and that Rule 32 counsel was ineffective for not presenting evidence at that evidentiary hearing. The record clearly reflects that the circuit court conducted an evidentiary hearing on Riley's petition on July 19, 2016, during which Riley was afforded the opportunity to present evidence to prove the claims in his petition.

We note that Riley's reliance on Ex parte Stringfellow, 565 So.2d 147 (Ala. 1990), is misplaced. In Ex parte Stringfellow, the petitioner filed his Rule 32 petition pro se, and the circuit court subsequently appointed counsel to represent him. Before the evidentiary hearing, appointed counsel moved to amend the petition, and the circuit court denied the request. The Alabama Supreme Court held that "an attorney who is appointed after a defendant has filed a pro se petition should be allowed to amend the petition prior to the hearing if a legitimate issue arises that differs in substance from the allegations made by the defendant in the original petition." 565 So.2d at 150.

This case is markedly different from Ex parte Stringfellow. In this case, Riley filed his petition pro se and counsel was appointed to represent him. Rule 32 counsel had ample opportunity to move to amend the petition or to file an amended petition before the evidentiary hearing, but did not do so. Riley then found different counsel to represent him, and over two months after the evidentiary hearing was conducted, pro bono counsel requested, not just to amend the petition, but to effectively restart the Rule 32 proceedings so that pro bono counsel could have time to investigate, to file a second amended petition, and to request discovery. Pro bono counsel also requested that the circuit court then conduct another evidentiary hearing so that Riley could have a second opportunity to present evidence. Contrary to Riley's apparent belief, Ex parte Stringfellow does not stand for the proposition that a Rule 32 petitioner is entitled to restart the Rule 32 proceedings whenever he or she finds new representation.

"Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment," Rule 32.7(b), Ala. R. Crim. P., and "[l]eave to amend shall be freely granted." Rule 32.7(d), Ala. R. Crim. P. "[O]nly grounds such as actual prejudice or undue delay will support a trial court's refusal to allow, or to consider, an amendment to a Rule 32 petition." Ex parte Rhone, 900 So.2d 455, 458 (Ala. 2004). The Alabama Supreme Court has recognized that it would be appropriate for a circuit court to deny a motion to amend "for example, if, on the eve of an evidentiary hearing, a Rule 32 petitioner filed an amendment that included new claims of which the State had no prior notice and as to which it was not prepared to defend." Ex parte Jenkins, 972 So.2d 159, 164 (Ala. 2005). Moreover, this Court has held that it is appropriate for a circuit court to deny a motion to amend that is filed after an evidentiary hearing has been conducted. See, e.g., McWilliams v. State, 897 So.2d 437, 446-48 (Ala. Crim. App. 2004) (holding that the circuit court properly denied one of the petitioner's multiple motions to amend because it had been filed after an evidentiary hearing had been conducted), overruled on other grounds by Ex parte Jenkins, supra, and Neelley v. State, 642 So.2d 494, 497 (Ala. Crim. App. 1993) (holding that the circuit court properly denied the petitioner's motion to amend filed seven months after the evidentiary hearing).

Allowing Riley to amend his petition, indeed to effectively restart the Rule 32 proceedings, after the circuit court had conducted the evidentiary hearing on Riley's petition would certainly have caused both undue delay in the proceedings and undue prejudice to the State.

B.

Second, Riley argues that Rule 32 counsel was ineffective in representing him during the Rule 32 proceedings and that, therefore, the circuit court's denial of his petition, without allowing him to restart the Rule 32 proceedings with pro bono counsel representing him, denied him his constitutional rights. Relying on Montgomery v. Louisiana, 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Riley argues that states are constitutionally obligated to provide inmates with a "meaningful opportunity" and a "meaningful forum" in which to litigate in a postconviction setting constitutional claims such as claims of ineffective assistance of counsel, and, relying on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), he argues that "[a] state's failure to provide qualified and competent counsel to represent Rule 32 petitioners forecloses petitioners' one meaningful opportunity to litigate initial-review ineffective-assistance-of-trial-counsel claims." (Riley's brief, p. 75.) In other words, Riley argues that he was denied what he claims was his constitutional right to the effective assistance of counsel during the Rule 32 proceedings, which, in turn, denied him what he claims was his constitutional right to state postconviction review of his conviction and sentence. Riley's arguments are meritless because he was not entitled to counsel, much less the effective assistance of counsel, in his Rule 32 proceedings.

" '[T]he right to effective assistance of counsel is dependent on the right to counsel itself.' " Jackson v. State, 612 So.2d 1356, 1357 (Ala. Crim. App. 1992) (quoting Evitts v. Lucey, 469 U.S. 387, 396 n.7, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) ). "The United States Supreme Court has made it clear that neither the Eighth Amendment nor the Due Process Clause of the United States Constitution requires states to appoint counsel for inmates, including death-row inmates, who seek post-conviction relief in state courts." Ex parte Jenkins, 972 So.2d 159, 164 (Ala. 2005). See also McMillan v. State, 258 So.3d 1154, 1185-86 (Ala. Crim. App. 2017) ("The right to counsel does not extend to postconviction proceedings."), and Hamm v. State, 913 So.2d 460, 473 (Ala. Crim. App. 2002) (holding that Rule 32 petitioner had no right to counsel in Rule 32 proceedings). Indeed, the United States Supreme Court has held that states are not constitutionally required to provide an avenue for postconviction review of a conviction and sentence, much less to provide counsel during such proceedings.

"Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U.S. 391, 423-424, 83 S.Ct. 822, 841, 9 L.Ed.2d 837 (1963). It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090-2091, 48 L.Ed.2d 666 (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well."

Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

" Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal. The additional safeguards imposed by the Eighth Amendment at the trial stage of a capital case are, we think, sufficient to assure the reliability of the process by which the death penalty is imposed. We therefore decline to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases."

Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (footnote omitted).

Riley's reliance on Montgomery and Martinez is misplaced. In Montgomery, the United States Supreme Court held that its previous decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), prohibiting a mandatory sentence of life imprisonment without the possibility of parole for juvenile offenders, "announced a substantive rule of constitutional law" and was retroactive on collateral review. 577 U.S. at ----, 136 S.Ct. at 736. Montgomery did not speak to the issue whether states are required to provide an avenue for postconviction review of a conviction and sentence and certainly did not, as Riley argues, "require[ ] state courts to provide a meaningful forum to litigate violations of the federal constitution." (Riley's brief, p. 75.) Moreover, Martinez does not apply to Rule 32 proceedings:

"In Martinez, the United States Supreme Court held that '[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceedings, there was no counsel or counsel in that proceeding was ineffective.' [566] U.S. at [17], 132 S.Ct. at 1320. In other words, if Rule 32 counsel is ineffective in representing a petitioner in the petitioner's first Rule 32 proceeding, the petitioner may use that ineffectiveness to avoid procedural default when filing a petition for a writ of habeas corpus in federal court. Thus, Martinez applies only to federal habeas corpus petitions; it does not apply to Rule 32 proceedings."

Van Pelt v. State, 202 So.3d 707, 718 (Ala. Crim. App. 2015).

Because Riley was not entitled to counsel in the Rule 32 proceedings, he was necessarily not entitled to the effective assistance of counsel. The fact that Riley's Rule 32 counsel may have been ineffective during the Rule 32 proceedings may allow him to avoid procedural default when he files a petition for a writ of habeas corpus in federal court, but it does not entitle him to restart the Rule 32 proceedings with pro bono counsel after the circuit court had conducted an evidentiary hearing on his petition.

For the reasons stated above, we find no error on the part of the circuit court in denying Riley's petition without first allowing pro bono counsel an opportunity to investigate the case and to file a second amended petition and without conducting a second evidentiary hearing.

III.

Riley also contends that the circuit court erred in "dispos[ing] of all claims summarily under Rule 32.7(d)" on the ground "that his pleadings did not warrant an evidentiary hearing," because, he says, he "sufficiently pleaded his claims and is, therefore, entitled to an evidentiary hearing under Rule 32.9." (Issue II in Riley's brief, p. 14.) Riley then reasserts in his brief on appeal each of the ineffective-assistance-of-counsel claims raised in his petition.

As already explained in Part II.A. of this opinion, contrary to Riley's belief, the circuit court did not summarily dismiss his claims of ineffective assistance of counsel without an evidentiary hearing on the ground that they were insufficiently pleaded. The circuit court conducted an evidentiary hearing on Riley's petition during which Riley had the opportunity to present evidence to support his claims. The circuit court's action in conducting an evidentiary hearing, in and of itself, establishes that the circuit court found that Riley's claims were sufficiently pleaded and raised material issues of law or fact. See, e.g., Ex parte McCall, 30 So.3d 400, 404 (Ala. 2008) ("By holding that hearing, the circuit court implicitly found that the issues presented were 'material issue[s] of law or fact."). Moreover, after the hearing, the circuit court issued an order denying each of Riley's claims on the grounds that they were meritless, that Riley had failed to prove the claims, and/or that Riley had abandoned the claims at the evidentiary hearing by failing to present evidence. Because the circuit court did not summarily dismiss Riley's petition without an evidentiary hearing on the ground that his claims were not sufficiently pleaded, Riley's argument that all of his claims were sufficiently pleaded and entitled him to an evidentiary hearing is moot.

We point out that Riley does not argue in his brief on appeal that the circuit court erred in finding that his claims were meritless, that he had failed to prove his claims, and/or that he had abandoned his claims at the evidentiary hearing. Because Riley makes no argument on appeal regarding the circuit court's actual findings regarding his claims, it is unnecessary for this Court to address the propriety of those findings.

IV.

Finally, Riley contends that the circuit court erred in denying his claims that the cumulative effect of his trial counsel's errors prejudiced him during both the guilt phase and the penalty phase of his trial. (Issue III in Riley's brief.)

In its order, the circuit court rejected Riley's claims of cumulative effect on two grounds: (1) that Alabama does not recognize cumulative error in the context of ineffective-assistance-of-counsel claims, and (2) that because Riley had failed to prove any of his claims of ineffective assistance of counsel "there is no cumulative effect to consider." (C. 238; see also C. 245.) Riley argues that the circuit court's first finding is erroneous because, he says, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "requires courts to review prejudice cumulatively." (Riley's brief, p. 71.) Riley argues that the circuit court's second finding is erroneous because, he says, the circuit court "cannot rule on the ultimate merits of [his] cumulative-prejudice claims" without first affording him an evidentiary hearing at which he is permitted to present evidence proving cumulative prejudice. Riley's arguments are meritless.

The circuit court was correct that "Alabama does not recognize a 'cumulative effect' analysis for ineffective-assistance-of-counsel claims." Carruth v. State, 165 So.3d 627, 651 (Ala. Crim. App. 2014). "We can find no case where Alabama appellate courts have applied the cumulative-effect analysis to claims of ineffective assistance of counsel." Brooks v. State, 929 So.2d 491, 514 (Ala. Crim. App. 2005).

Moreover, even if cumulative error applies to claims of ineffective assistance of counsel, "[t]he correct rule is that, while, under the facts of a particular case, no single error among multiple errors may be sufficiently prejudicial to require reversal under Rule 45, [Ala. R. App. P.,] if the accumulated errors have 'probably injuriously affected substantial rights of the parties,' then the cumulative effect of the errors may require reversal." Ex parte Woods, 789 So.2d 941, 942-43 n.1 (Ala. 2001) (emphasis added). We again reiterate that the circuit court did not, as Riley argues, summarily dismiss his claims of ineffective assistance of counsel on the ground that they were insufficiently pleaded. Rather, as already noted, the circuit court conducted an evidentiary hearing, during which Riley was, in fact, afforded an opportunity to prove his claims of ineffective assistance of counsel, including his claims of cumulative error, and the court then found that Riley had failed to prove his claims, had abandoned his claims, and/or that his claims were meritless. Because the circuit court found that Riley had failed to prove that counsel had committed any errors at all, much less multiple errors, the circuit court correctly found that there can be no cumulative error.

Therefore, the circuit court properly denied Riley's claims that the cumulative effect of his trial counsel's errors prejudiced him during both the guilt phase and the penalty phase of his trial.

V.

Based on the foregoing, the judgment of the circuit court denying Riley's Rule 32 petition is affirmed.

AFFIRMED.

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

      The jury's penalty-phase verdict is no longer a recommendation. Sections 13A-5-45, 13A-5-46, and 13A-5-47 were amended by Act No. 2017-131, Ala. Acts 2017, to place the final sentencing decision in the hands of the jury.

      The time for filing a Rule 32 petition in a case in which the death penalty has been imposed was amended by Act No. 2017-417, Ala. Acts 2017. However, that Act does not apply retroactively to Riley. See § 3, Act No. 2017-417, Ala. Acts 2017.

      The amended petition superseded the original petition. See, e.g., Reeves v. State, 226 So.3d 711, 722 (Ala. Crim. App. 2016) ; and Smith v. State, 160 So.3d 40, 47-49 (Ala. Crim. App. 2010). All further references in this opinion to Riley's petition shall be considered references to the amended petition.

      We note that the State filed a response to the motion to reconsider, arguing that it was untimely, having been filed more than 30 days after the circuit court's October 13, 2016, order denying Riley's petition. See Loggins v. State, 910 So.2d 146, 148-49 (Ala. Crim. App. 2005) (a circuit court retains jurisdiction to modify a judgment in Rule 32 proceedings for only 30 days after the judgment is entered). However, as Rule 32 counsel noted in a reply to the State's response, the 30th day after the circuit court's October 13, 2016, order was Saturday, November 12, 2016. Therefore, pursuant to Rule 1.3(a), Ala. R. Crim. P., the motion was timely filed on Monday, November 14, 2016.

      In fact, in this case, the judge who presided over the Rule 32 proceedings was the same judge who had presided over Riley's trial.

      We note that the erroneous citations are contained only in the State's proposed order, which the circuit court attached to its order and adopted by reference.

      Ex parte Jenkins overruled McWilliams only to the extent that McWilliams"applied the relation-back doctrine to proceedings governed by Rule 32, Ala. R. Crim. P." 972 So.2d at 165. Ex parte Jenkins did not overrule that portion of McWilliams holding that it is not error for a circuit court to deny a motion to amend filed after an evidentiary hearing has been conducted.


source: Caselaw Access Project

license: Public Domain

text:
    Samuel LANIER v. STATE of Alabama
    CR-17-0429
    Court of Criminal Appeals of Alabama.
    July 13, 2018 Rehearing Denied August 24, 2018
    On Return to Remand

      Note from the reporter of decisions: On April 10, 2018, the Court of Criminal Appeals remanded this case by order.

   KELLUM, Judge.

Samuel Lanier appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his August 2016 resentencing to 25 years' imprisonment for his 1996 guilty-plea conviction for first-degree robbery. Lanier did not appeal his 1996 guilty-plea conviction or his 2016 resentencing.

In his petition, Lanier alleged that he had filed a previous Rule 32 petition challenging his 1996 conviction and the legality of the original sentence imposed for that conviction -- which he had asserted was 5 years' imprisonment and below the mandatory minimum sentence for a Class A felony during which a firearm is used -- and that the circuit court, instead of "withdrawing" that conviction for use for sentence enhancement for his subsequent convictions, set aside the sentence on the ground that it was illegal and resentenced him in August 2016 to 25 years' imprisonment. (C. 12.) Lanier alleged that the circuit court lacked jurisdiction to resentence him in 2016 for his 1996 conviction, even though the original sentence was illegal, because, he said: (1) his original sentence had expired before he was resentenced; and (2) he was not represented by counsel at the resentencing hearing.

Without receiving a response from the State, the circuit court summarily dismissed Lanier's petition, finding that Lanier had originally been sentenced to 12 years' imprisonment for his 1996 conviction, not 5 years' imprisonment as Lanier alleged; that the original sentence had been split and Lanier had been ordered to serve 2 years in confinement followed by probation; and that Lanier's sentence had not expired before he was resentenced in 2016 because the court did "not see any indication" that Lanier's probation had been revoked after he had served the confinement portion of his sentence or that Lanier had ever served in confinement the remaining 10 years of his sentence. (C. 19.) The court also found that Lanier was represented by counsel at the resentencing hearing. Because the record before this Court was not sufficient for us to review the propriety of the circuit court's findings, we remanded this case by order dated April 10, 2018, for the circuit court to supplement the record with documentation relating to Lanier's 1996 conviction, his prior Rule 32 petition, and his resentencing. The circuit court promptly complied with our instructions, and this cause was resubmitted on return to remand on April 17, 2018.

On appeal, Lanier reasserts the two claims from his petition and argues that the circuit court erred in denying him relief from his resentencing. Lanier's claim that he was not represented by counsel at his August 2016 resentencing is meritless. The transcript of the resentencing hearing clearly reflects that Lanier was, in fact, represented by counsel. Therefore, the circuit court properly dismissed this claim. See Rule 32.7(d), Ala. R. Crim. P.

However, Lanier's claim that the circuit court lacked jurisdiction to resentence him after his original sentence had expired is more problematic. Initially, we point out that, although the State concedes on appeal that Lanier's original sentence had expired before he was resentenced, the circuit court found otherwise. In its summary-dismissal order, the circuit court found that Lanier had served the confinement portion of his original sentence but that his probation had never been revoked and he had never served the remaining 10 years of his 12-year sentence. Those factual findings are supported by the record. The record reflects that Lanier was sentenced to 12 years' imprisonment, that the sentence was split, and that Lanier was ordered to serve 2 years in confinement followed by 3 years on probation. Lanier was also given 468 days of jail credit. The confinement portion of Lanier's sentence began in January 1996, and, after completing that portion of his sentence, he was released to serve the probationary portion of his sentence. On October 31, 1996, Lanier's probation officer filed a delinquency report alleging that Lanier had violated the terms of his probation by committing a new offense, and the trial court ordered Lanier's arrest, but two weeks later, after a probation-revocation hearing, the trial court reinstated Lanier's probation, and the record reflects no further action with respect to Lanier's probationary term.

Although the circuit court was correct that Lanier's probation was never revoked and that he did not serve in confinement the entirety of his 12-year sentence, the court's conclusion, based on those facts, that Lanier's sentence had not expired was erroneous. In Woodward v. State, 3 So.3d 941, 944 (Ala. Crim. App. 2008), this Court recognized that a probationary period ends when (1) the probationer satisfactorily fulfills all the conditions of probation and the probationary term ordered by the court expires; (2) the maximum period of probation allowed by law expires, even if the probationer has not fulfilled the conditions of probation; or (3) the court formally discharges the probationer from probation. In this case, there is no indication that Lanier fulfilled the conditions of his probation or that the court formally discharged him from probation. However, the record is clear that the maximum period of probation allowed by law expired before Lanier was resentenced.

When a defendant is sentenced pursuant to the Split Sentence Act, as Lanier was, the maximum period of probation allowed by law is that portion of the sentence not ordered to be served in confinement. See Burge v. State, 623 So.2d 450 (Ala. Crim. App. 1993), and Hatcher v. State, 547 So.2d 905 (Ala. Crim. App. 1989). In this case, the maximum period of probation allowed by law was 10 years, and once those 10 years lapsed the probationary period ended and Lanier's sentence expired. Because his probation was never revoked, although it was tolled for approximately 2 weeks (see note 2, supra), the 10-year maximum probationary term ended, and Lanier's sentence expired, in 2006, a decade before Lanier was resentenced. Therefore, the circuit court erred in concluding that Lanier's sentence had not expired before he was resentenced.

Having determined that Lanier's sentence had expired long before he was resentenced, the question before this Court is whether a trial court retains jurisdiction to correct an illegal sentence after that sentence has expired. Absent a posttrial motion under Rule 24, Ala. R. Crim. P., a trial court generally retains jurisdiction to modify a sentence for only 30 days after the sentence is imposed. See Ex parte Hitt, 778 So.2d 159, 162 (Ala. 2000). Under the Split Sentence Act, a trial court retains jurisdiction to suspend the confinement portion of a split sentence throughout that portion of the sentence. See § 15-18-8(g), Ala. Code 1975. The exception to these jurisdictional limitations is when the sentence imposed is illegal. It is well settled that an illegal sentence is a jurisdictional defect and both this Court and the Alabama Supreme Court have repeatedly recognized that an illegal sentence may be challenged, or noticed by this Court, at any time. See, e.g., Ex parte Jarrett, 89 So.3d 730, 732 (Ala. 2011) ; Ex parte Batey, 958 So.2d 339, 341 (Ala. 2006) ; McNeal v. State, 43 So.3d 628, 629 (Ala. Crim. App. 2008) ; and Ginn v. State, 894 So.2d 793, 796 (Ala. Crim. App. 2004). This Court has also recognized that " 'even after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence [and] any increase in the sentence does not raise double jeopardy problems.' " Greenhill v. State, 746 So.2d 1064, 1072 (Ala. Crim. App. 1999) (quoting Love v. State, 681 So.2d 1108, 1109 (Ala. Crim. App. 1996) ).

However, it does not appear that this Court or the Alabama Supreme Court has ever been squarely presented with, or addressed, the issue whether a trial court retains jurisdiction to correct an illegal sentence after that sentence has expired, and it does not automatically follow from the jurisdictional nature of an illegal sentence that a trial court retains jurisdiction indefinitely to correct an illegal sentence. "[T]here must be a temporal limitation on a court's ability to resentence a defendant ... since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts." People v. Williams, 14 N.Y.3d 198, 217, 899 N.Y.S.2d 76, 88, 925 N.E.2d 878, 890 (2010). That limitation logically falls at the expiration of a sentence. Although an illegal sentence may be corrected after the defendant has begun serving the sentence without double-jeopardy implications, resentencing a defendant after the expiration of a sentence, even to correct an illegal sentence, results in multiple punishments for the same offense.

"The Fifth Amendment's Double Jeopardy Clause protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Woods v. State, 709 So.2d 1340, 1342 (Ala. Crim. App. 1997). "The clause applies to 'multiple punishment' because, if it did not apply to punishment, then the prohibition against 'multiple trials' would be meaningless; a court could achieve the same result as a second trial by simply resentencing a defendant after he has served all or part of an initial sentence."

United States v. Fogel, 829 F.2d 77, 88 (D.C. Cir. 1987). "[T]he primary purpose of the Double Jeopardy Clause [i]s to protect the integrity of a final judgment," United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), and jeopardy attaches to a sentence when the defendant acquires "an expectation of finality in the original sentence." United States v. DiFrancesco, 449 U.S. 117, 139, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980).

Several jurisdictions that have addressed the issue presented here have held that there is a jurisdictional limitation, founded on double-jeopardy principles, on a trial court's correcting an illegal sentence after the sentence has expired. In Commonwealth v. Selavka, 469 Mass. 502, 509, 14 N.E.3d 933, 941 (2014), the Supreme Judicial Court of Massachusetts recognized that "even an illegal sentence will, with the passage of time, acquire a finality that bars further punitive changes detrimental to the defendant" and the Court held that "the delayed correction of the defendant's initial sentence, in which he by then had a legitimate expectation of finality, violated double jeopardy and cannot stand." The New York Court of Appeals has similarly recognized:

"Even where a defendant's sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired) [so that] the sentences are beyond the court's authority and, ... although illegal under the Penal Law, ... the Double Jeopardy Clause prevents a court from modifying the sentence."

People v. Williams, supra, 14 N.Y.3d at 217-20, 899 N.Y.S.2d at 87-89, 925 N.E.2d at 890-91.

As Florida's Court of Appeal for the Second District succinctly stated: "Once a sentence has already been served, even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence." Maybin v. State, 884 So.2d 1174, 1175 (Fla. Dist. Ct. App. 2004). See also State v. Holdcroft, 137 Ohio. St. 3d. 526, 527-33, 1 N.E.3d 382, 384-89 (2013) (holding that "when the entirety of a prison sanction has been served, the defendant's expectation in finality in his sentence becomes paramount, and his sentence for that crime may no longer be modified," even "when one of the sanctions originally imposed by the trial court is void"); March v. State, 109 N.M. 110, 111, 782 P.2d 82, 83 (1989) ("[T]he court has authority to correct an irregular sentence at any time prior to when defendant has served his full sentence."); Commonwealth v. Borrin, 12 A.3d 466, 472 (Pa. Sup. Ct. 2011) ("The double jeopardy clauses of the United States and Pennsylvania Constitutions prohibit a trial court from exercising its authority to correct a clerical error to increase a defendant's sentence when the defendant fully served the maximum term of his sentence, as stated in the sentencing order, and the direct appeal had been completed or the time for appeal has expired."), aff'd, 622 Pa. 422, 80 A.3d 1219 (2013) ; and State v. Houston, 795 N.W.2d 99 (Iowa Ct. App. 2010) (table) (unpublished disposition) ("In accord with double jeopardy principles, we conclude that a legitimate expectation of finality arises upon a defendant's completion of the original sentence. It follows that a proper limit on a court's ability to resentence a defendant to correct an illegal sentence should be prior to completion of the original sentence. Once the original sentence is fully served, the attachment of jeopardy ... preclude[s] the court from resentencing."). Cf., State v. Brown, 479 S.W.3d 200, 211 (Tenn. 2015) (interpreting a rule of procedure to prohibit correction of an illegal sentence after the sentence has expired in order to avoid unconstitutional results); and State v. Laird, 25 N.J. 298, 307, 135 A.2d 859, 864 (1957) (holding that a procedural rule permitting a trial court to correct an illegal sentence " 'at any time' " did not "authorize an enlargement of the punishment after the sentence imposed had been satisfied and the defendant discharged").

We agree with the above jurisdictions, and we hold that a trial court loses jurisdiction to correct an illegal sentence once that sentence expires and the direct appeal has been completed or the time to appeal has lapsed and that a trial court's correcting an illegal sentence after the expiration of that sentence violates principles of double jeopardy. Because Lanier's sentence for his 1996 robbery conviction expired in 2006, the circuit court lacked jurisdiction in 2016 to resentence him and doing so resulted in multiple punishments for the same offense in violation of double-jeopardy principles.

We recognize that Lanier's resentencing was the result of his filing a Rule 32 petition challenging his 1996 conviction and sentence. Lanier readily acknowledges that he challenged his 1996 conviction and sentence and that he did so because that conviction was subsequently used in 2011 to enhance five sentences he received upon application of the Habitual Felony Offender Act ("HFOA") for five counts of first-degree robbery. It is not uncommon for defendants to challenge a prior conviction in an attempt to eliminate it for use for sentence enhancement, and, under the doctrine of invited error, a defendant generally "will not be permitted to allege as error an action that was a natural consequence of his own actions." Bradley v. State, 925 So.2d 232, 241 (Ala. 2005). However, "the lack of subject-matter jurisdiction is a fundamental error depriving the court of the authority to render a valid decision," Ex parte V.S., 918 So.2d 908, 912-13 (Ala. 2005), and "a defendant cannot consent to waive a jurisdictional defect." Moore v. City of Leeds, 1 So.3d 145, 152 (Ala. Crim. App. 2008). Thus, although Lanier initiated the proceedings that led to his resentencing, he cannot be said to have consented to the circuit court resentencing him when the circuit court had no jurisdiction to do so.

We likewise recognize that Lanier's 25-year sentence has, essentially, been subsumed within the 5 sentences of life imprisonment without the possibility of parole he is currently serving for his 2011 convictions and has no effect on the length of his current incarceration. Nonetheless, we cannot ignore the fact that the circuit court lacked jurisdiction to resentence Lanier for his 1996 robbery conviction after the original sentence had expired and that Lanier is entitled to relief from that resentencing. Because the expiration of Lanier's sentence in 2006 rendered that sentence final and unmodifiable, the only available remedy at this point is reinstatement of Lanier's original, albeit illegal, sentence.

Based on the foregoing, the judgment of the circuit court summarily dismissing Lanier's Rule 32 petition is reversed, and this cause is remanded for the circuit court to grant Lanier's Rule 32 petition, to set aside his 25-year sentence, and to reinstate his original sentence. No return to remand need be filed.

REVERSED AND REMANDED.

Windom, P.J., and Welch and Burke, JJ., concur. Joiner, J., concurs in the result, with opinion.

JOINER, Judge, concurring in the result.

I concur in the result. I agree with the main opinion's ultimate conclusion that the circuit court did not have the authority to modify Samuel Lanier's sentence because that sentence had already expired and that resentencing Lanier violated double-jeopardy principles.

I also agree with the main opinion's holding that a circuit court does not have the authority to resentence a petitioner after the petitioner's sentence has expired "and the direct appeal has been completed or the time to appeal has lapsed." 270 So. 3d at 310. That proposition, however, is usually the case with any sentence--legal or illegal, completed or not yet completed. Generally, once a direct appeal has been completed or the time to appeal has lapsed, a circuit court does not have jurisdiction to modify a sentence--even an illegal one--absent the invocation of a procedural mechanism for doing so. See, e.g., Rule 26.12, Ala. R. Crim. P. In Waters v. State, 155 So.3d 311 (Ala. Crim. App. 2013), this Court stated:

"Rule 32, [Ala. R. Crim. P.,] which provides a procedural vehicle for a defendant to collaterally attack the proceedings that led to his conviction or sentence, authorizes the circuit court to, in essence, reopen the proceedings that led to the petitioner's conviction and sentence if the petitioner demonstrates he is entitled to relief. Our caselaw illustrates that when a Rule 32 petitioner obtains relief, the proceedings are reopened at the point necessary for the circuit court to address the particular problem in that case.
"For example, if a Rule 32 petitioner demonstrates that his sentence is illegal, the circuit court may then reopen the proceedings and resentence the petitioner. See, e.g., McMillian v. State, 934 So.2d 434 (Ala. Crim. App. 2005) (granting Rule 32 relief where the petitioner's sentence was improperly enhanced under the Habitual Felony Offender Act and instructing the circuit court to resentence the petitioner without the application of the Habitual Felony Offender Act). Additionally, if a Rule 32 petitioner shows that his conviction must be overturned then the conviction--and the corresponding sentence for that conviction-will be set aside and the proceedings will continue from that point--additional proceedings could include, for example, a new trial, a guilty plea, or the dismissal of the charges. See, e.g., Riley v. State, 892 So.2d 471 (Ala. Crim. App. 2004) (granting Rule 32 relief where the petitioner's guilty plea was involuntary and instructing the circuit court to set aside the petitioner's conviction and sentence)."

155 So.3d at 316-17.

Thus, the more precise question in this case is whether a petitioner may file a Rule 32 petition to obtain the "relief" of a harsher but legal sentence after the petitioner has completed his or her shorter but illegal sentence. I would hold that a petitioner may not do so. To hold otherwise would permit a petitioner to misuse the postconviction procedure provided in Rule 32.

Lanier's case is a clear example of a petitioner attempting to misuse Rule 32, Ala. R. Crim. P. Lanier's original claim, filed in a previous Rule 32 petition that resulted in the resentencing that is the basis of the instant appeal, was that his sentence for first-degree robbery was too short and was thus illegal. Lanier sought the "relief" of being resentenced to a longer sentence. This, of course, sounds like nonsense, and it is. But there is a strategy behind it.

As the main opinion recognizes, "[i]t is not uncommon for defendants to challenge a prior conviction in an attempt to eliminate it for use for sentence enhancement." 270 So. 3d at 310 (emphasis added). Here, Lanier's 1996 guilty-plea conviction was used to enhance his 2011 sentences, and Lanier ultimately wanted his 1996 conviction set aside. Presumably, however, no valid basis existed for challenging the 1996 conviction, and Lanier therefore challenged his 1996 sentence in an attempt to manufacture a problem with the guilty-plea conviction and have that conviction set aside. In other words, Lanier tried to do indirectly what he could not do directly.

In Hall v. State, 223 So.3d 977 (Ala. Crim. App. 2016), this Court held that a petitioner could not use Rule 32 to obtain the "relief" of having an additional fine imposed that the petitioner argued was mandatory. In my special concurrence in Hall, I stated:

"Hall has alleged that his sentence was 'illegal' because the circuit court failed to impose on him a $1,000 demand-reduction assessment [pursuant to § 13A-12-281, Ala. Code 1975 ]. To 'cure' this error, Hall contends that he is entitled to the postconviction 'relief' of being resentenced by the circuit court so that court could impose on him the demand-reduction assessment. In other words, Hall seeks to use Rule 32 to receive additional punishment from the circuit court. This is nonsense.
"It is not difficult to imagine other ridiculous scenarios. For example, imagine a Rule 32 petitioner who alleges that he was sentenced to 10 years' imprisonment for a conviction for a Class C felony. Imagine further that he claims that his 10-year sentence is 'illegal' because, he says, he has three prior felony offenses for purposes of the Habitual Felony Offender Act ('the HFOA'); that the State invoked the HFOA and properly proved all three prior felony offenses at his sentencing hearing; and that the circuit court, although acknowledging the existence of the three prior felony offenses, did not sentence him under the HFOA. Because, he says, his sentence is 'unauthorized' under the HFOA, and because '[m]atters concerning unauthorized sentences are jurisdictional,' the circuit court must 'grant' him postconviction 'relief' and resentence him to a harsher sentence under the HFOA--up to, and including, life imprisonment. This simply is not 'relief.'
"Like the writ of habeas corpus, Rule 32 exists as a possible key to 'unlock the prison doors,' see Barton v. City of Bessemer, 27 Ala. App. 413, 417-18, 173 So. 621, 625 (1936) (opinion on rehearing), rev'd on other grounds, 234 Ala. 20, 173 So. 626 (1937), not as a means to subject petitioners to additional or harsher punishment."

223 So.3d at 990-91.

Lanier's case is similar to the ridiculous scenario I envisioned in Hall. This type of action is not consistent with the stated purpose of Rule 32, Ala. R. Crim. P., which exists for a defendant "to secure appropriate relief" (emphasis added). It simply is not relief to use Rule 32 to obtain a longer sentence. In his prior Rule 32 petition, however, that is the "relief" Lanier obtained--a harsher sentence of 25 years instead of a 12-year sentence. Once Lanier got what he asked for, he filed another Rule 32 petition to undo what had been done at his request. Although I agree with the result of setting aside the 25-year "resentence," I would hold that Lanier should not have been permitted to proceed with his prior Rule 32 petition because it did not seek "relief."

      In 2011, Lanier was convicted of five counts of first-degree robbery and was sentenced, as a habitual felony offender, to life imprisonment without the possibility of parole for each conviction. His 1996 robbery conviction was one of the convictions used to enhance his sentences. This Court affirmed Lanier's 2011 convictions and sentences, without an opinion. Lanier v. State (No. CR-10-0646), 120 So.3d 1241 (Ala. Crim. App. 2011) (table).

      " 'As a practical matter, the running of the period of probation must be considered tolled when a warrant of arrest for violation of probation is issued by the court.' " Mumpfield v. State, 872 So.2d 205, 207 (Ala. Crim. App. 2003) (quoting Peoples v. State, 439 So.2d 774, 775 (Ala. Crim. App. 1983) ).

      The parties do not dispute that Lanier's original sentence was illegal, and, for purposes of this opinion, we presume that it was.

      This Court has addressed challenges to an illegal sentence brought after the sentences had expired. See Hall v. State, 223 So.3d 977 (Ala. Crim. App. 2016), and Watson v. State, 164 So.3d 622 (Ala. Crim. App. 2014). However, the issue whether a trial court has jurisdiction to correct an illegal sentence after the sentence has expired was not specifically presented in those cases and was not addressed by this Court. In addition, we have found no Alabama Supreme Court case that has addressed a challenge to an illegal sentence brought after the sentence had expired.

      In the petition that led to his resentencing, Lanier alleged that he had pleaded guilty in 1996 pursuant to a plea agreement with the State; that he was sentenced in accordance with that plea agreement; that the sentence was illegal and resentencing was required to correct the illegality in the sentence; and that, once he was resentenced, he was entitled to withdraw his plea. See, e.g., Calloway v. State, 860 So.2d 900 (Ala. Crim. App. 2002) (opinion on return to remand and on second application for rehearing). The circuit court found that there was no plea agreement with the State and that Lanier had entered a "blind" plea, but it agreed with Lanier that the sentence was illegal.

      It is unnecessary for this Court to remand this case to allow Lanier an opportunity to prove that the circuit court lacked jurisdiction to resentence him because the record conclusively establishes, and the State concedes, that Lanier was resentenced after his original sentence had expired, and the primary question before this Court is one of law, not fact, i.e., whether a trial court retains jurisdiction to correct an illegal sentence after that sentence has expired. "Therefore, as both this Court and the Alabama Supreme Court have done numerous times in the past when the record is clear on its face that a Rule 32 petitioner is entitled to relief, we grant that relief, rather than waste scarce judicial resources to remand for [Lanier] to present evidence that" is already in the record before this Court. Williams v. State, 104 So.3d 254, 265-66 n.5 (Ala. Crim. App. 2012). See also Lynch v. State, 229 So.3d 260, 268 n.3 (Ala. Crim. App. 2016).

      Lanier's argument in the instant case was that the shorter and allegedly illegal sentence was a part of a bargained-for plea agreement. He sought a harsher sentence to then argue that the harsher sentence violated his plea agreement, rendering it involuntary. He then would have argued that the conviction should be set aside, and he would have done so in the hope that if it were set aside, the State would no longer have the evidence needed to convict him.
      Lanier's efforts were unsuccessful in part because the circuit court found that no plea agreement existed.

      The main opinion notes that it presumes that the 12-year sentence was illegal. Lanier pleaded guilty to first-degree robbery, see § 13A-8-41, Ala. Code 1975. First-degree robbery is a class A felony, which has a possible sentence of 10 years to life. His claim, however, was that he should have received a minimum sentence of 20 years under the enhancement for use of a firearm or a deadly weapon under former § 13A-5-6(a)(4), Ala. Code 1975. On the record before us, it is impossible to determine whether that enhancement should have applied. Thus, Lanier's sentence may have been legal.

      Filing yet another Rule 32 petition was presumably the only procedural mechanism available to Lanier. Having obtained "relief" in the prior Rule 32 petition, Lanier, as the prevailing party, could not appeal from that decision. (Theoretically, the State could have appealed from it. But why would the State have done so?)

      The main opinion directs the circuit court to reinstate the original sentence. In my opinion, setting aside the order that "resentenced" Lanier to 25 years is all that is required in this case. Arguably, because the original 12-year sentence has been completed, there is no sentence to reinstate. Regardless, once the resentencing order is set aside, it will have no effect on the original 12-year sentence.


author: PER CURIAM.

text:
    IN RE: AMENDMENTS TO the FLORIDA EVIDENCE CODE - 2019 REGULAR-CYCLE REPORT.
    No. SC19-105
    Supreme Court of Florida.
    May 2, 2019
    Patricia M. Dodson, Chair, Code and Rules of Evidence Committee, Ponte Vedra, Florida; and Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

We have for consideration the regular-cycle report of The Florida Bar Code and Rules of Evidence Committee (Committee), pertaining to legislative changes to the Florida Evidence Code. See Ch. 2014-35, § 2, Laws of Fla. We have jurisdiction.

The amendments before this Court are those enacted by the Florida Legislature prior to the Court having last considered regular-cycle amendments to the Evidence Code. See In re Amends. to the Fla. Evidence Code , 210 So.3d 1231 (Fla. 2017). The Committee recommends that the Court adopt chapter 2014-35, section 2, Laws of Florida, which amended section 90.204, Florida Statutes, a provision of the Evidence Code. The Board of Governors of The Florida Bar unanimously approved the Committee's recommendations. The proposed amendments were published for comment in The Florida Bar News ; none were received.

The Legislature amended section 90.204(4) in chapter 2014-35, section 2, Laws of Florida. The statute, in general, pertains to matters which may be judicially noticed. Subsection (4) provides as follows:

In family cases, the court may take judicial notice of any matter described in s. 90.202(6) when imminent danger to persons or property has been alleged and it is impractical to give prior notice to the parties of the intent to take judicial notice. Opportunity to present evidence relevant to the propriety of taking judicial notice under subsection (1) may be deferred until after judicial action has been taken. If judicial notice is taken under this subsection, the court shall, within 2 business days, file a notice in the pending case of the matters judicially noticed. For purposes of this subsection, the term "family cases" has the same meaning as provided in the Rules of Judicial Administration.

§ 90.204(4). Thus, in family cases, the court may take judicial notice of any record of any court of this State or of any court of record of the United States or any state, territory, or jurisdiction of the United States, when imminent danger has been alleged and it is impractical to give prior notice of such to the parties. See id. ; § 90.202(6).

Based upon the foregoing, we adopt chapter 2014-35, section 2, Laws of Florida, as provided in the appendix to this opinion, to the extent that the provision is procedural. This decision does not alter the established effective date of chapter 2014-35, section 2, Laws of Florida, which is May 12, 2014.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, LUCK, and MUÑIZ, JJ., concur.

APPENDIX

Chapter 2014-35, section 2:

90.204. Determination of Propriety of Judicial Notice and Nature of Matter Noticed.-

(4) In family cases, the court may take judicial notice of any matter described in s. 90.202(6) when imminent danger to persons or property has been alleged and it is impractical to give prior notice to the parties of the intent to take judicial notice. Opportunity to present evidence relevant to the propriety of taking judicial notice under subsection (1) may be deferred until after judicial action has been taken. If judicial notice is taken under this subsection, the court shall, within 2 business days, file a notice in the pending case of the matters judicially noticed. For purposes of this subsection, the term "family cases" has the same meaning as provided in the Rules of Judicial Administration.

      See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Adm. 2.140(b).

      We note that Florida Family Law Rule of Procedure 12.4501 (Judicial Notice) was adopted previously in response to section 90.204(4), and is identical in content to the statutory provision. See In re Amends. to Fla. Family Law Rules of Proc.-2017 Regular-Cycle Report , 227 So.3d 115, 116-17, 119 (Fla. 2017).

      The statute provides that "family cases" has the same definition as provided in the Florida Rules of Judicial Administration, specifically rule 2.545(d)(2).

      See ch. 2014-35, § 7, Laws of Fla.


text:
    Calvin Dmarcus Martise FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2964
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David PEMBELTON, Petitioner, v. STATE of Florida and Secretary, Florida Department of Corrections, Respondents.
    No. 1D18-4419
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Derrick Christopher SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1180
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael A. HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3591
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Amanda Stone COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3235
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Earl OGDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3874
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rodger HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0352
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   DISMISSED.


text:
    Andre R. FULLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-5190
    District Court of Appeal of Florida, First District.
    May 10, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brenda ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3774
    District Court of Appeal of Florida, First District.
    May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terence JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0428
    District Court of Appeal of Florida, First District.
    May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Anthony Ray PEEK, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D18-4234
    District Court of Appeal of Florida, First District.
    May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Louis REED Jr., Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW and Florida Department of Corrections, et al., Appellees.
    No. 1D19-0365
    District Court of Appeal of Florida, First District.
    May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jennifer BEAUDRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4188
    District Court of Appeal of Florida, First District.
    May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Belated appeal is denied.


text:
    Daniel ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-60
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terrance T. MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4598
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher A. VAUGHAN, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-5013
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dion Romero MIXSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-869
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    SPACE COAST CREDIT UNION, Appellant, v. CITY OF JACKSONVILLE, Florida, and Jane West, Appellees.
    No. 1D17-5239
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jodi Marie BURKHAMMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2064
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE of Florida, Appellant, v. Raul HERNANDEZ-RODRIQUEZ, Appellee.
    No. 1D18-949
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Paul NIXON, Appellant, v. Mark S. INCH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D18-1574
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Keith Deontay LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4055
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Katherine AMAN, Appellant, v. State of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT PROGRAM and Deborah Holzer, Appellees.
    No. 1D18-3736
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Louis Eugene PAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1135
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Anniina Suominen GUYAS, Former Wife, Appellant, v. Paul GUYAS, Former Husband, Appellee.
    No. 1D18-1027
    District Court of Appeal of Florida, First District.
    May 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Toray Anthony RICKETTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1895
    District Court of Appeal of Florida, First District.
    April 30, 2019 Rehearing Denied May 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Dreshawn Tony PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4020
    District Court of Appeal of Florida, First District.
    April 2, 2019 Rehearing Denied May 14, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Samuel BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5053
    District Court of Appeal of Florida, First District.
    April 2, 2019 Rehearing Denied May 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3817
    District Court of Appeal of Florida, First District.
    March 29, 2019 Rehearing Denied May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David FLICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1113
    District Court of Appeal of Florida, First District.
    March 29, 2019 Rehearing Denied May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Silas KENDRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0937
    District Court of Appeal of Florida, First District.
    March 25, 2019 Rehearing Denied May 9, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edward THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3822
    District Court of Appeal of Florida, First District.
    March 21, 2019 Rehearing Denied April 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David S. MONTGOMERY, Appellant, v. Rebecca L. MONTGOMERY, Appellee.
    No. 1D19-0831
    District Court of Appeal of Florida, First District.
    May 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Cryshan MUHAMMAD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D18-413
    District Court of Appeal of Florida, First District.
    May 17, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CLASSIC ARCHITECTURAL CONSTRUCTION, INC., and Kevin Bienfang, Appellants, v. Paul KASAPIS, Appellee.
    Case No. 2D18-255
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Khalaf MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4390
    District Court of Appeal of Florida, First District.
    March 11, 2019 Rehearing Denied May 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Marco TORRES, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 2D18-2491
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur Christopher SAMUEL, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1414
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Rinat KHAYBULLIN; Svetlana Kuznetsova a/k/a Svetlana Kouznetsova, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR the CERTIFICATEHOLDERS OF the LXS 2006-4N TRUST FUND; Mortgage Electronic Registration Systems, Inc., acting solely as nominee for First Magnus Financial Corporation, an Arizona Corporation; and Greyhawk Landing Property Owners Association, Inc., Appellees.
    Case No. 2D18-152
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ronald VALENTINE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-670
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nathan HERRING, Appellant, v. Alfred O. BONATI, M.D., Gulf Coast Orthopedic Center- Alfred O. Bonati, M.D., P.A.; Medical Development Corporation of Pasco County d/b/a The Bonati Institute; American Medical Care, Inc. ; and Maureen D'Errico, Appellees.
    Case No. 2D18-4100
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christina Anamaria ALEXANDER, Appellant, v. Patricia D. ALEXANDER and Sandra J. Scott-Mooney, Appellees.
    Case No. 2D18-459
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jermaine A. BROWN, DOC #375222, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1887
    District Court of Appeal of Florida, Second District.
    Opinion filed March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Edmund MANCHESTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2063
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie O'Neal GARNER, DOC #990411, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2131
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Brian A. KEENE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2469
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Maria LOPEZ, DOC #154779, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2916
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ricardo ESPILDORA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2962
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Javier MALDONADO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1895
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Christopher E. BENNNING, Appellant, v. William G. PRUMMEL, Jr., Sheriff of Charlotte County, Florida, Appellee.
    Case No. 2D18-2000
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael James STERLACE, DOC #S28114, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2182
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mary A. JOHNSTON a/k/a Mary Ann Johnston, Appellant, v. JAMES B. NUTTER & COMPANY; the Unknown Heirs, Beneficiaries, Devisees, Grantees, Assignees, Lienors, Creditors, Trustees and All Others Who May Claim an Interest in the Estate of Robert G. Johnston, Deceased; Robert Johnston, Jr. a/k/a Robert Gary Johnston, Jr.; Amy Johnston a/k/a Amy L. Johnston; Elizabeth Wager a/k/a Elizabeth Marie Wager; United State of America, Acting of Behalf of the Secretary of Housing and Urban Development; Any and All Unknown Parties Claiming by, Through, Under, and Against the Herein Named Individual Defendant(s) Who are Not Known to be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees, or Other Claimants, Appellees.
    Case No. 2D18-493
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas PATON, as personal representative of the Estate of Stephen G. Fox, deceased, Appellant, v. NEW HEIGHTS AVIATION, LLC, Appellee.
    Case No. 2D18-791
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Agustin Josende ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2507
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jocelyn G. CHAVEZ-INIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1693
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur A. GENOVESE, III, DOC #Y09175, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3047
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur A. GENOVESE, III, DOC #Y09175, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3615
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    K.S., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1730
    District Court of Appeal of Florida, Second District.
    Opinion filed March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph RIVERA, DOC #T74883, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2149
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Souveni PETIT-FRERE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2370
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Bernard BULL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2459
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tyrell Deshawn SANDERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3231
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Verna Eileen ROBERTSON, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee FOR CIM TRUST 2015-4AG MORTGAGE-BACKED NOTES SERIES 2015-4AG, Appellee.
    Case No. 2D17-4425
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jaquan Isaiah WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-666
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    IN RE GUARDIANSHIP OF Faye Arlene HOWARD, an incapacitated person,
    George Augustine, Appellant, v. Suzanne Sarris, as guardian of Faye Arlene Howard, an incapacitated person, Appellee.
    Case No. 2D18-1709
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tory Jonae ARNOLD, DOC #H21430, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2350
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    ZHONG HUANG, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3966
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Aaron ANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-340
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andrew SWEET, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4442
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John Andrew STETINA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-506
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Garrett F. BRUCE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-868
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Todd J. MCNALLY, Appellant, v. James FINN, Appellee.
    Case No. 2D18-3138
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lisa COSTANTINI, Appellant, v. Lyndley W. RADIX and Arlene Radix, Appellees.
    Case No. 2D18-3765
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    The NOCTURNAL GROUP, LLC, a Florida limited liability company, d/b/a Franklin Manor, and Lanfranco Pescante, a natural person, Appellants, v. 915 FRANKLIN STREET PROJECT OWNER, LLC, a foreign limited liability company, Appellee.
    Case No. 2D18-4601
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marvin L. BRIGHT, Appellant, v. ST. PETERSBURG COLLEGE BOARD OF TRUSTEES, Appellee.
    Case No. 2D18-3640
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Joseph BELCIK, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2005-8 MORTGAGE LOAN PASS-THROUGH CERTIFICATES SERIES 2005-8; Nationstar Mortgage, LLC, Appellees.
    Case No. 2D18-3833
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jesus E. TACORONTE a/k/a Jesus Tacoronte, Appellant, v. CITIGROUP MORTGAGE LOAN TRUST INC., Asset-Backed Pass-Through Certificates, Series 2007-AMC1, U.S. Bank National Association, as Trustee; Jesus E. Tacoronte a/k/a Jesus Tacoronte, Trustee Under the Trust Agreement Dated the 25 Day of September 2012 Known as Trust Number 12726a; Panther Trace Homeowners' Association, Inc. ; Unknown Tenant in Possession 1; and Unknown Tenant in Possession 2, Appellees.
    Case No. 2D18-4597
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    GOLDROCK, INC., as trustee, Appellant, v. PLANET HOME LENDING, LLC; Connie E. Robinson; Robert R. Robinson ; Channing Park Property Owners Association, Inc.; and Unknown Tenant Occupant(s) #1, Appellees.
    Case No. 2D18-1852
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mark S. GRUNBERG; Entcom, Inc., and TBLM, Inc., d/b/a The Bottom Line, Appellants, v. John Kenneth ANDERSON, Appellee.
    Case No. 2D18-2102
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leland Brinch MCDANIEL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-501
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose M. HADDOCK-LEON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-57
    District Court of Appeal of Florida, Second District.
    Opinion filed April 24, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Virginia I. YOUNG, Appellant, v. Pam STEWART, Commissioner of Education, Appellee.
    Case No. 2D18-3040
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Romerio Latee WALKER, DOC #108533, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-4275
    District Court of Appeal of Florida, Second District.
    Opinion filed April 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Willie David MC CUNE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1478
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Steven C. WHITE, Appellant/Petitioner(s), v. Grady C. JUDD, Sheriff of Polk County, Appellee/Respondent(s).
    CASE NO.: 2D19-1009
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    William P. BROWN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0356
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Patrick GAMMAGE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1039
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Dennis REESOR, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.:2D19-1203
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    William DEJESUS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.:2D19-1188
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    HTN TRUST, INC., Appellant/Petitioner(s), v. JP MORGAN CHASE BANK, N.A. and Obbie V. Wilerson, IV, Appellee/Respondent(s).
    CASE NO.: 2D19-0954
    District Court of Appeal of Florida, Second District.
    May 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Rachel DOWNING, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4496
    District Court of Appeal of Florida, Second District.
    May 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Todd Lee HAMITER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1496
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Charles WILKINS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-1102
    District Court of Appeal of Florida, Second District.
    February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    STATE of Florida, Appellant/Petitioner(s), v. Alfred JENKINS, Appellee/Respondent(s).
    CASE NO.:2D19-1179
    District Court of Appeal of Florida, Second District.
    March 29, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Arnaldo VALIDO, Appellant/Petitioner(s), v. Carmine MARCENO, Sheriff of Lee County, Appellee/Respondent(s).
    CASE NO.: 2D19-0994
    District Court of Appeal of Florida, Second District.
    March 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Derrick GRANTLEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0987
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Willie David MCCUNE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1031
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Pamela KAZES & Unknown Spouse of Pamela Kazes, Appellant/petitioner(s), v. SPECIALIZED LOAN SERVICING, LLC, et al, Appellee/respondent(s).
    CASE NO.: 2D18-0994
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Donald WYSZCZELSKI, et al, Appellant/Petitioner(s), v. BANK OF AMERICA, N. A., Appellee/Respondent(s).
    CASE NO.:2D18-0701
    District Court of Appeal of Florida, Second District.
    April 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    JUPITER HOUSE, LLC, Appellant/Petitioner(s), v. HMC ASSETS, LLC, Trustee of CAM XVIII, Appellee/Respondent(s).
    CASE NO.:2D18-1834
    District Court of Appeal of Florida, Second District.
    April 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    CARMINE'S SEVENTH AVENUE, INC., d/b/a Carmine's 7th Avenue, Appellant/Petitioner(s), v. DEPT. OF BUSINESS & PROFESSIONAL REGULATION, Appellee/Respondent(s).
    CASE NO.:2D18-1795
    District Court of Appeal of Florida, Second District.
    April 09, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    BLACK POINT ASSETS, INC., Appellant/Petitioner(s), v. BANK OF AMERICA, N. A., et al, Appellee/Respondent(s).
    CASE NO.: 2D18-2892
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Ross SCOPELLITI, Appellant/Petitioner(s), v. Jennifer MCCLEAN, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-3103
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Dismissed. Dismissed.


text:
    Dale Edwin FERGUS, Appellant/Petitioner(s), v. DEPT. OF BUSINESS & PROFESSIONAL REGULATION, Appellee/Respondent(s).
    CASE NO.: 2D18-3396
    District Court of Appeal of Florida, Second District.
    April 04, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Robert A. HERCE, Appellant/Petitioner(s), v. Frances MAINES, Appellee/Respondent(s).
    CASE NO.: 2D18-1697
    District Court of Appeal of Florida, Second District.
    April 01, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.

Denied.

Remanded.


text:
    Nivardo PARRA, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1033
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Bryant Elijah DEXTER, Appellant/Petitioner(s), v. Tim F. Bower RODRIGUEZ, Esq., Appellee/Respondent(s).
    CASE NO.: 2D19-0926
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Richard Neal GILLESPIE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-5050
    District Court of Appeal of Florida, Second District.
    April 24, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Dennis PARMLEY, Appellant/Petitioner(s), v. Jennifer A. PARMLEY, Appellee/Respondent(s).
    CASE NO.: 2D18-3567
    District Court of Appeal of Florida, Second District.
    April 3, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    S.T., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D19-0523
    District Court of Appeal of Florida, Second District.
    May 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    S.T., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D19-0159
    District Court of Appeal of Florida, Second District.
    May 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    MARK 7 RELOADING, LLC, Appellant/Petitioner(s), v. AMMOBOT, LLC, et al., Appellee/Respondent(s).
    CASE NO.: 2D19-0343
    District Court of Appeal of Florida, Second District.
    May 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Antonio GUALANDI, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0825
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Gregory ROLAND, Appellant/Petitioner(s), v. POLK COUNTY COURTHOUSE, Appellee/Respondent(s).
    CASE NO.:2D19-1551
    District Court of Appeal of Florida, Second District.
    May 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Transferred.


text:
    Randall L. WRIGHT, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0876
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Dortanio HUGHLEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-1048
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Dwight JOSEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3665
    District Court of Appeal of Florida, Second District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.