author: PER CURIAM. BASCHAB, Presiding Judge, SHAW, Judge,

text:
    William Lyle MARSHALL v. STATE of Alabama.
    CR-07-0004.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.
    Rehearing Denied May 23, 2008.

      James Warren May, Foley, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, William Lyle Marshall, pleaded guilty to felony driving under the influence (“DUI”), a violation of §§ 32-5A-191(a) and 32-5A-191(h), Ala.Code 1975. He was sentenced to five years in prison and was fined $4,100. This appeal followed.

On July 28, 2006, Marshall was arrested and charged with DUI. In April 2007, Marshall was indicted for felony DUI based on his three prior DUI convictions that had occurred in August 1998, February 2004, and February 2005. Marshall filed a motion in limine seeking to have the court exclude the August 1998 conviction from sentencing consideration because, he argued, the conviction occurred more than five years before the current DUI. The circuit court denied the motion. Marshall then pleaded guilty to felony DUI, specifically reserving his right to appeal the question whether the circuit court properly included the 1998 DUI conviction in sentencing him.

On appeal, Marshall argues that the circuit court improperly used his 1998 conviction, which was more than five years old, to enhance his DUI conviction to a felony and, further, that the circuit court had no jurisdiction to sentence him for misdemeanor DUI.

The State agrees that the circuit court improperly sentenced Marshall as a felon. It relies on this Court’s recent case of Hankins v. State, 989 So.2d 610, 623 (Ala.Crim.App.2007), in which we stated:

“[W]e have no choice but to hold that by amending subsection (o) in the 2006 amendment to § 32-5A-191, the legislature has restricted the use of prior DUI convictions for sentencing purposes to only those convictions that occurred within the five-year period immediately preceding the current conviction.”

Marshall was arrested for the current DUI offense on July 28, 2006. The DUI statute was amended effective April 28, 2006. Thus, Marshall has the benefit of the amendment to the DUI law.

According to our holding in Hankins, the circuit court could consider only those convictions that occurred within five years before the current DUI conviction. Thus, the court erroneously considered Marshall’s 1998 DUI conviction to enhance his current DUI conviction to a felony. The question now becomes did the circuit court have jurisdiction to accept Marshall’s plea to the misdemeanor DUI offense and to sentence him for a misdemeanor?

Traditionally, we have looked at an indictment to determine whether a court had jurisdiction over a particular offense. However, in Ex parte Seymour, 946 So.2d 536, 538-39 (Ala.2006), the Alabama Supreme Court held:

“Under the Alabama Constitution, a circuit court ‘shall exercise general jurisdiction in all cases except as may be otherwise provided by law.’ Amend. No. 328, § 6.04(b), Ala. Const.1901. The Alabama Code provides that ‘[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions .... ’ § 12-11-30, Ala.Code 1975. The offense of shooting into an occupied dwelling is a Class B felony. § 13A-11-61(b), Ala.Code 1975. As a result, the State’s prosecution of Seymour for that offense was within the circuit court’s subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case.
“The validity of Seymour’s indictment is irrelevant to whether the circuit court had jurisdiction over the subject matter of this case. A defect in an indictment may be error, see Rule 15.2(d), Ala. R.Crim.P. — or even constitutional error, see Ala. Const., Art. I, § 8 — but the defect does not divest the circuit court of the power to try the case....
“We hold that a circuit court has subject-matter jurisdiction over a felony prosecution, even if that prosecution is based on a defective indictment. To the extent that [Ex parte] Lewis, [811 So.2d 485 (Ala.2001),] Ash [v. State, 843 So.2d 213 (Ala.2002) ], and other Alabama cases have held to the contrary, they are overruled.”

In light of Seymour we must now look to Alabama law to determine whether a court has jurisdiction over a case.

Article II, § 142(b), Ala. Const. (Off.Recomp.) (formerly Amendment No. 328, § 6.04(b)), Ala. Const.1901, states, in part: “The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law.” Section 12-11-30(2), Ala.Code 1975, states:

“The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge; except, that the district court shall have concurrent jurisdiction with the circuit court to receive pleas of guilty in felony cases not punishable by sentence of death.”

Rule 2.2(a), Ala.R.Crim.P., states:

“All felony charges and misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge shall be prosecuted in circuit court, except that the district court shall have concurrent jurisdiction to receive guilty pleas and to impose sentences in felony cases not punishable by sentence of death, including related and lesser included misdemeanor charges, and may hold preliminary hearings with respect to felony charges.”

The indictment returned against Marshall stated:

“William Lyle Marshall, whose name is otherwise unknown to the Grand Jury other than as stated, did drive or be in actual physical control of a vehicle while, (1) there was 0.08 percent or more by weight of alcohol in his blood; or (2) under the influence of alcohol or (3) under the influence of a controlled substance to a degree which rendered him incapable of safely driving; or (4) under the combined influence of alcohol and a controlled substance to a degree which rendered him incapable of safely driving; in violation of § 32-5A-191(a) of the Code of Alabama and § 32-5A-191(h) of the Code of Alabama, in that he has been convicted of three or more offenses of driving under the influence.”

Section 32-5A-191(a), Ala.Code 1975, provides, in pertinent part:

“A person shall not drive or be in actual physical control of any vehicle while:
“(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
“(2) Under the influence of alcohol;
“(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;
“(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or
“(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.”

Section 32-5A-191(h), Ala.Code 1975, provides, in pertinent part:

“On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years.”

The Alabama Supreme Court in Ex parte Parker, 740 So.2d 432 (Ala.1999), specifically addressed whether § 32-5A-191(h) created a new substantive felony DUI offense or was merely a sentencing enhancement statute. The Supreme Court stated:

“Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions and to prescribe punishment, rather than to define the substantive elements of a separate offense. Furthermore, the substantive elements of the offense dealt with by § 32-5A-191 are set out in subsection (a)....
“The fundamental difference between subsection (h) and subsections (e), (f), and (g) is that subsection (h) makes the fourth conviction punishable as a felony. The State argues that subsection (h) is significantly different from subsections (e), (f), and (g) because subsection (h) changes the offense from a misdemeanor to a felony. ... Subsection (h), while increasing the severity of the punishment, does not alter the substantive offense set out in subsection (a).
“Moreover, we are not persuaded by the State’s contention that the phrase ‘a person [convicted a fourth time] shall be guilty of a Class C felony and punished’ (emphasis added) evidences a legislative intent to establish a substantive offense in subsection (h). Contrary to the State’s argument, the legislative intent as we perceive that intent to be, supports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense. The title to Act No. 94-590, Ala. Acts 1994, the act that added the former subsection (f) that is now (h), indicates clearly that the legislature intended, by adopting that subsection, to create an enhancement provision and not to create a separate substantive offense. The title reads as follows:
“ ‘AN ACT to amend Section 32-5A-191, Code of Alabama 1975, relating to the offense of driving under the influence of alcohol and drugs to increase the penalties and sanctions for a fourth and subsequent conviction.’
“(Emphasis added.) The title, which explains in general terms the purpose of the enactment, supports Parker’s argument that the subsection is directed toward providing additional punishment rather than creating a separate substantive offense.”

740 So.2d at 434-35.

According to Alabama law the circuit court retains jurisdiction of a misdemeanor when: (1) the misdemeanor is a lesser-included offense of the charged felony; or (2) the misdemeanor arose out of the same incident as the felony. See § 12-11-30(2), Ala.Code 1975.

In Parker, the Supreme Court resolved the issue whether misdemeanor DUI is a lesser included offense of felony DUI. The Supreme Court held that the prior convictions are to be admitted only during the sentencing hearing because the prior convictions are not substantive elements of the DUI offense. Because the prior convictions are not elements of the offense, misdemeanor DUI cannot be a lesser-in-eluded offense of felony DUI. The offenses are identical; the difference relates only to sentencing.

This Court in Pruitt v. State, 897 So.2d 402 (Ala.Crim.App.2003), considered whether the circuit court retained jurisdiction of a DUI case after the State elected to proceed on the misdemeanor DUI charge and not the felony DUI charge. Pruitt was indicted for alternative counts of DUI. Count I charged Pruitt with driving under the influence of alcohol while having three prior convictions for driving under the influence. Count II charged Pruitt with driving while there was 0.08% or more of alcohol by weight in his blood. The State elected to proceed under Count II of the indictment. Pruitt was convicted and sentenced as a felon. On appeal, Pruitt argued that the circuit court did not have subject-matter jurisdiction over his case, because, he argued, Count II charged only a misdemeanor. In holding that the circuit court retained jurisdiction of the misdemeanor offense, we stated:

“A dismissal of the felony count does not remove the circuit court’s jurisdiction over a misdemeanor count when the misdemeanor count arises from the same incident as the felony count. [§ 12-11-30(2), Ala.Code 1975; Casey v. State, 740 So.2d 1136 (Ala.Crim.App.1998)]. Because the misdemeanor count arose from the same incident as the felony count, the circuit court retained its jurisdiction when the State elected to proceed under the misdemeanor count.”

897 So.2d at 405. We reversed Pruitt’s conviction after holding that he was not put on notice that he was being charged with felony DUI because Count II of the indictment did not reference § 32-5A-191(h), Ala.Code 1975. According to the above statutes and cases the circuit court would have jurisdiction to consider a misdemeanor DUI because it arose out of the same incident as a felony DUI.

Moreover, implicit in our holding in Hankins is that a circuit court has jurisdiction to consider a misdemeanor DUI offense when the State is unable to prove the requisite number of prior DUI convictions to elevate the offense to a felony. When the State was unable to prove three prior DUI convictions in Hankins, we affirmed the conviction and remanded the case to the circuit court for resentencing. If the circuit court had had no jurisdiction to resentence Hankins we would have noticed the jurisdictional defect ex mero motu. See Nunn v. Baker, 518 So.2d 711 (Ala.1987).

We now specifically hold that a circuit court retains jurisdiction of a misdemeanor DUI offense when the State fails to prove the necessary prior DUI convictions to elevate the offense to a felony. According to § 12-11-30(2), Ala.Code 1975, the two offenses arose out of the same incident; thus, jurisdiction is proper in the circuit court. Once a case properly originates in the circuit court it should remain in the circuit court. This is consistent with Rule 1.2, Ala.R.Crim.P., which states, in part: “These rules are intended to provide for the just and speedy determination of every criminal proceeding.” To the extent that our previous opinions, including Dutton v. State, 807 So.2d 596 (Ala.Crim.App.2001); Davis v. State, 806 So.2d 404 (Ala.Crim.App.2001); State v. Shaver, 816 So.2d 88 (Ala.Crim.App.1999), have held or implied otherwise, they are hereby expressly overruled.

For the foregoing reasons we affirm Marshall’s conviction for misdemeanor DUI and remand this case to the circuit court for that court to sentence Marshall for misdemeanor DUI.

AFFIRMED AS TO CONVICTION; REVERSED AND REMANDED AS TO SENTENCING.

McMILLAN, WISE, and WELCH, JJ., concur; BASCHAB, P.J., and SHAW, J., concur in part and concur in the result, with opinions.

BASCHAB, Presiding Judge,

concurring in part and concurring in the result.

Relying on the reference in § 12-11-30(2), Ala.Code 1975, to “misdemeanor or ordinance violations ... which arise from the same incident as a felony charge,” and Pruitt v. State, 897 So.2d 402 (Ala.Crim.App.2003), the majority concludes that “the circuit court would have jurisdiction to consider a misdemeanor DUI because it arose out of the same incident as a felony DUI.” 25 So.3d at 1188. However, I believe the above-referenced portion of § 12-11-30(2), Ala.Code 1975, applies only to indictments that charge separate felony and misdemeanor offenses. Also, the indictment in Pruitt included both a felony and a misdemeanor count. Because the indictment in this case included only one count for felony DUI, the majority’s reliance on § 12-11-30(2), Ala.Code 1975, and Pruitt is misplaced.

In addition, the majority opinion appears to take inconsistent positions as to whether misdemeanor DUI and felony DUI are the same offense or different offenses. When concluding that misdemeanor DUI is not a lesser included offense of felony DUI, the majority appears to treat the offenses as one offense, stating:

“In Parker, the Supreme Court resolved the issue whether misdemeanor DUI is a lesser included offense of felony DUI. The Supreme Court held that the prior convictions are to be admitted only during the sentencing hearing because the prior convictions are not substantive elements of the DUI offense. Because the prior convictions are not elements of the offense, misdemeanor DUI cannot be a lesser-included offense of felony DUI. The offenses are identical; the difference relates only to sentencing.”

25 So.Bd at 1187. However, when concluding that the circuit court retains jurisdiction over the case, the majority appears to treat misdemeanor DUI and felony DUI as two separate offenses, stating:

“[T]he circuit court would have jurisdiction to consider a misdemeanor DUI because it arose out of the same incident as a felony DUI.
“We now specifically hold that a circuit court retains jurisdiction of a misdemeanor DUI offense when the State fails to prove the necessary prior DUI convictions to elevate the offense to a felony. According to § 12-11-30(2), Ala.Code 1975, the two offenses arose out of the same incident; thus, jurisdiction is proper in the circuit court.”

25 So.3d at 1188.

Finally, the majority states:

“Moreover, implicit in our holding in Hankins is that a circuit court has jurisdiction to consider a misdemeanor DUI offense when the State is unable to prove the requisite number of prior DUI convictions to elevate the offense to a felony. When the State was unable to prove three prior DUI convictions in Hankins, we affirmed the conviction and remanded the case to the circuit court for resentencing. If the circuit court had had no jurisdiction to resentence Hankins we would have noticed the jurisdictional defect ex mero motu. See Nunn v. Baker, 518 So.2d 711 (Ala.1987).”

25 So.3d at 1188. However, in recent opinions, the Alabama Supreme Court has attempted to narrow the scope of the term “jurisdictional.” See, e.g., Ex parte Gunn, 993 So.2d 433 (Ala.2007); Ex parte Ward, [Ms. 1051818, June 1, 2007] - So.3d - (Ala.2007); Ex parte Seymour, 946 So.2d 536 (Ala.2006). Therefore, in light of the Alabama Supreme Court’s apparent efforts to limit the instances in which defects are characterized as jurisdictional, I do not agree with the majority’s statement that “we would have noticed the jurisdictional defect ex mero motu” when deciding Hankins. 25 So.3d at 1188.

Nevertheless, I do agree that the circuit court retains exclusive jurisdiction over any remaining misdemeanor DUI charge. I also agree that this court’s decisions that have held or implied otherwise, including Dutton, Davis, and Shaver, should be overruled. Because the appellant was clearly charged with a felony, the circuit court had exclusive original jurisdiction over the case. See § 12-11-30(2), Ala. Code 1975. “ ‘[T]he jurisdiction of a court depends on the state of facts existing at the time it is invoked, and once jurisdiction of the person and subject matter attaches it continues until final disposition or determination of the case.’ 22 C.J.S. Criminal Law § 222 (2006) (citations omitted).” State v. Tomaskie, 337 Mont. 130, 136, 157 P.3d 691, 694 (2007). Therefore, I respectfully concur in the result.

SHAW, Judge,

concurring in part and concurring in the result.

Although I do not agree with all the language and reasoning in the main opinion, I do agree with the following holdings: that William Lyle Marshall must be resen-tenced in accordance with this Court’s opinion in Hankins v. State, 989 So.2d 610 (Ala.Crim.App.2007); that a circuit court has jurisdiction to sentence a defendant for a conviction of driving under the influence regardless of whether the sentence is a felony sentence or a misdemeanor sentence; and that Dutton v. State, 807 So.2d 596 (Ala.Crim.App.2001), Davis v. State, 806 So.2d 404 (Ala.Crim.App.2001), and State v. Shaver, 816 So.2d 88 (Ala.Crim.App.1999), should be overrated. In all other respects, I concur only in the result.

      . This Court recently held that a defendant must be sentenced according to the DUI law in effect at the time of the offense and not at die time of conviction. See Stewart v. State, 990 So.2d 441 (Ala.Crim.App.2008).

      . See also Davis v. State, 806 So.2d 404, 409 n. 1 (Ala.Crim.App.2001) (Shaw, J., concurring in the result) C'[I]t would appear that a fourth DUI offense, in the absence of proof of three previous DUI offenses, necessarily arises from the same act that gave rise to the felony DUI charge.”).

      . The Alabama Supreme Court on certiorari review held that Pruitt failed to object when his three prior felony convictions were introduced at sentencing; therefore, that court held, he waived appellate review of his claim that he was incorrectly sentenced as a felon. See Ex parte Pruitt, 897 So.2d 406 (Ala.2004).

      . This conclusion is also consistent with our holdings in McMullen v. State, 2 So.3d 931 (Ala.Crim.App.2008), and Altherr v. State, 911 So.2d 1105 (Ala.Crim.App.2004).


source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice LYONS, Justice

license: Public Domain

text:
    Ex parte William Lyle MARSHALL. (In re William Lyle Marshall v. State of Alabama).
    1071243.
    Supreme Court of Alabama.
    Feb. 27, 2009.
    Rehearing Denied May 15, 2009.
    James W. May, Foley, for petitioner.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   STUART, Justice.

William Lyle Marshall was indicted by the Baldwin County grand jury on February 13, 2007, and charged in a one-count indictment with the offense of driving under the influence (“DUI”)- The indictment reads:

“William Lyle Marshall, whose name is otherwise unknown to the Grand Jury other than as stated, did drive or be in actual physical control of a vehicle while, (1) there was 0.08 percent or more by weight of alcohol in his blood; or (2) under the influence of alcohol[;] or (3) under the influence of a controlled substance to a degree which rendered him incapable of safely driving; or (4) under the combined influence of alcohol and a controlled substance to a degree which rendered him incapable of safely driving; in violation of § 32-5A-191(a) of the Code of Alabama and § 32-5A-191(h) of the Code of Alabama, in that he has been convicted of three or more offenses of driving under the influence.”

Marshall pleaded guilty in the circuit court to DUI. The State offered evidence that Marshall previously had been convicted for DUI in August 1998, in February 2004, and in February 2005. Marshall objected to the use of the 1998 DUI conviction to enhance his sentence on the basis that that conviction was more than five years old at the time of his current DUI conviction. § 32-5A-191(o), Ala.Code 1975. The circuit court overruled Marshall’s objection, applied the three previous DUI convictions to enhance Marshall’s sentence, and sentenced Marshall to five years in prison and ordered him to pay a fine of $4,100. He reserved the right to appeal the issue whether prior convictions obtained more than five years before the current DUI conviction could be used to enhance the sentence for his current DUI conviction.

Before the Court of Criminal Appeals, Marshall argued that the circuit court erred in using the 1998 DUI conviction to enhance his current conviction. The State conceded in its brief to that court that because the 1998 DUI conviction occurred more than five years before the current DUI conviction, the 1998 conviction should not have been used to enhance Marshall’s sentence. See § 32-5A-191(o), Ala.Code 1975. The Court of Criminal Appeals affirmed Marshall’s conviction and remanded the case to the Baldwin Circuit Court for that court to resentence Marshall. Marshall v. State, 25 So.3d 1183 (Ala.Crim.App.2008).

Marshall then petitioned this Court for a writ of certiorari to determine whether a circuit court has jurisdiction over a DUI case when the State fails to establish the necessary prior DUI convictions to enhance the defendant’s sentence to make the offense punishable as a felony. We issued the writ, and we hold that it does.

In Ex parte Seymour, 946 So.2d 536 (Ala.2006), this Court recognized that we must look to Alabama law to determine whether a court has jurisdiction to adjudicate an offense. The Alabama Constitution provides that a circuit court “shall exercise general jurisdiction in all cases except as may otherwise be provided by law.” § 142, Ala. Const. 1901 (Off.Recomp.) (added by Amend, no. 328, § 6.04(b), Ala. Const.1901). Additionally,

“[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge; except, that the district court shall have concurrent jurisdiction with the circuit court to receive pleas of guilty in felony cases not punishable by sentence of death.”

§ 12-11-30(2), Ala.Code 1975 (emphasis added). See also Rule 2.2(a), Ala. R.Crim. P. Section 12-12-51, Ala.Code 1975, provides that “[t]he district court shall have exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions, except ordinance infractions in municipal courts.” Section 12-12-50, Ala.Code 1975, defines a “traffic infraction” as “any violation of a statute, ordinance or regulation relating to the operation or use of motor or other vehicles or the use of streets and highways by pedestrians.”

The statute defining the offense of driving under the influence of alcohol is § 32-5A-191, Ala.Code 1975, which provides, in pertinent part:

“(a) A person shall not drive or be in actual physical control of any vehicle while:
“(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
“(2) Under the influence of alcohol;
“(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving;
“(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or
“(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving.
“(e) Upon first conviction, a person violating this section shall be punished by imprisonment in the county jail or municipal jail for not more than one year, or by fine of not less than six hundred dollars ($600) nor more than two thousand one hundred dollars ($2,100), or by both a fine and imprisonment. ...
“(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by a fine of not less than one thousand one hundred dollars ($1,100) nor more than five thousand one hundred dollars ($5,100) and by imprisonment, which may include hard labor in the county or municipal jail for not more than one year....
“(g) On a third conviction, a person convicted of violating this section shall be punished by a fine of not less than two thousand one hundred dollars ($2,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment, which may include hard labor, in the county or municipal jail for not less than 60 days nor more than one year, to include a minimum of 60 days which shall be served in the county or municipal jail and cannot be probated or suspended....
“(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years....
“ip) A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section....”

(Emphasis added.)

In Ex parte Parker, 740 So.2d 432, 434 (Ala.1999), this Court considered

“whether § 32-5A-191(h) states a substantive offense, of which the three prior convictions referred to in the subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether upon conviction a defendant shall receive an enhanced sentence.”

740 So.2d at 433. We held:

“Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions and to prescribe punishment, rather than to define the substantive elements of a separate offense. Furthermore, the substantive elements of the offense dealt with by § 32-5A-191 are set out in subsection (a)....
“The fundamental difference between subsection (h) and subsections (e), (f), and (g) is that subsection (h) makes the fourth conviction punishable as a felony....”

740 So.2d at 434-35.

In Ex parte Formby, 750 So.2d 587 (Ala.1999), another case in which this Court analyzed § 32-5A-191, Ala.Code 1975, we clarified our holding in Parker in response to the State’s application for rehearing, stating:

“The State’s first issue presented in its rehearing application, the answer to which is dispositive is:
“ ‘Does the [Ex parte] Parker [, 740 So.2d 432 (Ala.1999),] decision render Formby ⅛ conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?’
“... Parker held that a fourth or subsequent DUI conviction is a felony conviction, rather than a misdemeanor conviction. Parker, thus, is consistent not only with the plain language of § 32-5A-191(h) but also rvith the general definition of felony’ found in Title ISA, the Criminal Code, which defines a felony’ as fa]n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title.’ § 13A-1-2U).
“Having explained that Parker does not stand for the proposition that ‘felony DUI’ convictions are really misdemean- or convictions, we now discuss our understanding of the effect of that conclusion. We held in Parker:
“ ‘[W]e are not persuaded by the State’s contention that the phrase “a person [convicted a fourth time] shall be guilty of a Class C felony and punished” evidences a legislative intent to establish a substantive offense in subsection (h). Contrary to the State’s argument, the legislative intent as we perceive that intent to be, sttpports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense.’
“Parker, 740 So.2d at 435 (emphasis omitted; new emphasis added). The import of that holding is that during the guilt phase of a defendant’s DUI trial the jury should not be presented with evidence of the defendant’s prior DUI convictions. In so holding, we sought to prevent prejudicial information of a defendant’s prior convictions from tainting the jury’s determination of guilt in regard to the instant offense. Of course, due-process protections also require that the defendant be on notice of the charges against him, so the indictment should put him on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h).”

750 So.2d at 589-90 (first emphasis, other than on first appearance of the word “felony,” added).

Whether the DUI offense is a misdemeanor prosecution, the jurisdiction for which x-ests in the municipal or district court, or a felony prosecution, the jurisdiction for which rests in the circuit court, depends on whether the jurisdiction of the circuit court is invoked by the defendant’s being charged in an indictment with the offense of DUI and with having three or more previous DUI convictions — a violation of § 32-5A-191(h), Ala.Code 1975. As we stated in Forrnby:

“We reiterate that Parker stands for the proposition that a conviction for a fourth or subsequent DUI is a felony conviction.... The prior convictions are not to be considered until after the jury has passed on the question of the defendant’s guilt.”

750 So.2d at 591 (emphasis added). Thus, applying our interpretation of § 32-5A-191(h), Ala.Code 1975, in Parker and Forrnby and our holding in Seymour, we hold that if a defendant is charged in an indictment with the offense of DUI and with having three prior DUI convictions (i.e., with violating § 32-5A-191(h), Ala. Code 1975), then the DUI offense charged is a felony prosecution and the jurisdiction of the circuit coux-t is invoked. § 12-11-30(2), Ala.Code 1975. See Pruitt v. State, 897 So.2d 406 (Ala.2004) (in which this Court implicitly held that the circuit court had jurisdiction to adjudicate the case even though the State elected to proceed under the count charging a violation of § 32-5A-191(a), Ala.Code 1975, instead of the count charging a violation of § 32-5A-191(h), Ala.Code 1975); Davis v. State, 806 So.2d 404 (Ala.Crim.App.2001); and Casey v. State, 740 So.2d 1136 (Ala.Crim.App.1998).

Today, we ai-e presented with the question of first impression for this Court: If during the sentencing phase of a felony DUI prosecution, the State fails to establish one of the three prior DUI convictions necessary to make the cmrent DUI conviction punishable as a felony, does that failure divest the circuit court of jurisdiction to sentence the defendant? We hold that the fact that the State fails to prove that the current DUI conviction is punishable as a felony, i.e., that the defendant has had three prior DUI convictions within five years of the current DUI conviction, does not divest the circuit court of jurisdiction to sentence the defendant for the misdemeanor offense of DUI. Indeed, when a case properly originates in the circuit court, it remains in the circuit coux-t.

“ ‘ “[T]he jurisdiction of a court depends on the state of the facts existing at the time it is invoked, and once jurisdiction of the person and subject matter attaches it continues until final disposition or determination of the case.” 22 C.J.S. Criminal Law § 222 (2006) (citations omitted).’ State v. Tomaskie, 337 Mont. 130, 136, 157 P.3d 691, 694 (2007).”

Marshall v. State, 25 So.3d at 1189 (Baschab, P.J., concurring in the result). Whether after a defendant with three pri- or DUI convictions is convicted of a fourth DUI (making the offense punishable as a felony) the State can establish that the conviction is punishable as a felony is a matter of proof and does not impact the circuit court’s subject-matter jurisdiction over the case. Davis, supra; Casey, supra.

In this case, the indictment charged Marshall with the offense of DUI and with having three prior DUI convictions. This indictment set forth a felony prosecution, invoking the circuit court’s jurisdiction, see Formby and § 12-11-30(2), Ala.Code 1975. Although in the sentencing phase the State failed to prove one of the three prior DUI convictions that were used to enhance the current DUI conviction to make Marshall’s conviction punishable as a felony, the circuit court has jurisdiction to sentence Marshall. See Altherr v. State, 911 So.2d 1105, 1113 (Ala.Crim.App.2004) (“[I]f a cause is properly before the circuit court, a finding of guilt pursuant to § 32-5A-191(a), Ala.Code 1975, may be followed by sentence enhancements under §§ 32-5A-191(f), (g), or (h), Ala.Code 1975.” (footnote omitted)). Therefore, the Court of Criminal Appeals was correct in holding that the circuit court retains jurisdiction to resen-tence Marshall, and its judgment remanding the case to that court for resentencing is affirmed.

AFFIRMED.

COBB, C.J., and WOODALL, SMITH, BOLIN, and PARKER, JJ., concur.

MURDOCK, J., concurs in the result.

LYONS, J., dissents.

SHAW, J., recuses himself.

MURDOCK, Justice

(concurring in the result).

Both the main opinion and Justice Lyons’s dissenting opinion appear to offer “responses” to the indictment in this case as if that indictment merely charges Marshall with the offense of DUI “and with having three prior DUI convictions.” 25 So.3d at 1194. The main opinion’s response to such an indictment is to hold that this is enough to allege a felony and invoke the jurisdiction of the circuit court:

“[I]f a defendant is charged in an indictment with the offense of DUI and with having three prior DUI convictions (i.e., with violating § 32-5A-191(h), Ala.Code 1975), then the DUI offense charged is a felony prosecution and the jurisdiction of the circuit court is invoked.”

25 So.3d at 1194. I do not agree that a reference in an indictment merely to a defendant’s “having three prior DUI convictions,” without more, is enough (or that it charges, as suggested by the parenthetical in the foregoing quote, a violation of § 32-5A-191(h), Ala.Code 1975). I concur in the result reached by the main opinion, however, because, as discussed below, the indictment in the present case contains more than a bare reference to “three prior DUI convictions.”

Justice Lyons’s dissenting opinion states that “[t]he indictment alleged only that Marshall had been convicted of three or more offenses of driving under the influence.” 25 So.3d at 1197. The dissenting opinion also states that “[t]he indictment in this case charging DUI under § 32-5A-191(h) with three prior misdemeanor convictions charges only a misdemeanor because it ignores the five-year requirement of § 32-5A-191(o).” 25 So.3d 1197.

Again, if the indictment contained only a bare reference to “three prior DUI convictions,” with nothing more, I would agree with Justice Lyons that this is not enough to charge a felony and to invoke the jurisdiction of the circuit court. The indictment in the present case, however, contains more. The indictment states:

“William Lyle Marshall, whose name is otherwise unknown to the Grand Jury other than as stated, did drive or be in actual physical control of a vehicle while, (1) there was 0.08 percent or more by weight of alcohol in his blood; or (2) under the influence of alcohol[;] or (3) under the influence of a controlled substance to a degree which rendered him incapable of safely driving; or (4) under the combined influence of alcohol and a controlled substance to a degree which rendered him incapable of safely driving; in violation of § 32-5A-191(a) of the Code of Alabama and § 32-5A-191(h) of the Code of Alabama, in that he has been convicted of three or more offenses of driving under the influence.”

(Emphasis added.) Thus, the indictment expressly alleges a violation of § 32-5A-191(h). Further, the express reference in the indictment to § 32-5A-191(h) necessarily carries with it the definitional impact of § 32-5A-191(o), Ala. Code 1975, which states that “[a] prior conviction within a five-year period for driving under the influence of alcohol or drugs ... shall be considered by a court for imposing a sentence pursuant to this section.” See generally Florence v. Williams, 439 So.2d 83, 87 (Ala.1983) (“[A]ll statutes relating to the same subject or having the same general purpose [must] be read together to constitute one law.”).

That said, I concur in the result reached by the main opinion. Section 12-11-30(2), Ala.Code 1975, states:

“(2) Criminal. The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge ....”

(Emphasis added.) The State argues that the misdemeanor charge upon which Marshall is now to be sentenced “arise[s] from the same incident as [his] felony charge” for DUI. The State cites Casey v. State, 740 So.2d 1136 (Ala.Crim.App.1998), in which a defendant was indicted both for felony DUI and for misdemeanor DUI, along with other misdemeanors. The felony DUI charge was nol-prossed before trial, yet the case proceeded to trial in the circuit court on the remaining misdemean- or charges. The Court of Criminal Appeals, in holding that the circuit court had subject-matter jurisdiction, noted that the misdemeanor DUI charges against the defendant “arose from the same incident as the felony DUI.” 740 So.2d at 1139.

The State also cites Pruitt v. State, 897 So.2d 402 (Ala.Crim.App.2003), another DUI case, in which the Court of Criminal Appeals held that “[a] dismissal of [a] felony count does not remove the circuit court’s jurisdiction over a misdemeanor count when the misdemeanor count arises from the same incident as the felony count.” 897 So.2d at 405.

I agree with the State that the misdemeanor DUI charge upon which Marshall is now to be sentenced arises out of the same incident as did the felony DUI charge upon which Marshall was originally convicted. I therefore concur in the result reached by the main opinion. See also Davis v. State, 806 So.2d 404, 409 n. 1 (Ala.Crim.App.2001) (Shaw, J., concurring in the result and noting that “it would appear that a fourth DUI offense, in the absence of proof of three previous DUI offenses, necessarily arises from the same act that gave rise to the felony DUI charge”); Hankins v. State, 989 So.2d 610 (Ala.Crim.App.2007) (holding that the defendant was not guilty of felony DUI because the State was unable to prove that the defendant had three prior DUI convictions but remanding the case to the circuit court for resentencing without reference to any potential jurisdictional problem).

LYONS, Justice

(dissenting).

The main opinion states that “if a defendant is charged in an indictment with the offense of DUI and with having three prior DUI convictions (i.e., with violating § 32-5A-191(h), Ala.Code 1975), then the DUI offense charged is a felony prosecution and the jurisdiction of the circuit court is invoked.” 25 So.3d at 1194. The main opinion then concludes that “[i]n this case, the indictment charged Marshall with the offense of DUI and with having three prior DUI convictions” and that “[tjhis indictment set forth a felony prosecution, invoking the circuit court’s jurisdiction.” 25 So.3d at 1195. I respectfully disagree with this conclusion.

I do not view the indictment charging Marshall with DUI as charging him with a felony that is within the circuit court’s jurisdiction. The indictment alleged only that Marshall had been convicted of three or more offenses of driving under the influence. Under § 32-5A-191(h) and § 32-5A-191(o), Ala.Code 1975, felony DUI is applicable only to those persons convieted of DUI who have had at least three prior DUI convictions within a five-year period preceding the latest conviction. Subsections (h) and (o) of § 32-5A-191 both relate to the offense of felony DUI and must be read together. Florence v. Williams, 439 So.2d 83, 87 (Ala.1983) (“[A]ll statutes relating to the same subject or having the same general purpose [must] be read together to constitute one law.”). The indictment in this case charging DUI under § 32-5A-191(h) with three prior misdemeanor convictions charges only a misdemeanor because it ignores the five-year requirement of § 32-5A-191(o).

In Pruitt v. State, 897 So.2d 402 (Ala.Crim.App.2003), the Court of Criminal Appeals held that a circuit court retained jurisdiction of a DUI case after the State elected to proceed on the misdemeanor DUI charge and not the felony DUI charge — both ofivhich were charged in the indictment On certiorari review in Pruitt v. State, 897 So.2d 406, 407 (Ala.2004), this Court held that a count of an indictment charging a driver with DUI after that driver had been convicted of three prior offenses of driving under the influence did not have to refer to § 32-5A-191(h) in order to charge felony DUI. However, Pruitt was decided before § 32-5A-191(o) was adopted to limit the “look back” provision of subsection (h) to five years; it therefore does not speak to the issue before this Court as to an indictment that charges only driving under the influence and refers to three prior convictions without specificity as to the time of conviction, a critical factor in § 32-5A-191 as amended. Without a companion felony count in Marshall's indictment, as was the case in Pruitt, the indictment charged only a single count of misdemeanor DUI.

Nor does this Court’s holding in Ex parte Seymour, 946 So.2d 536 (Ala.2006), justify or require the conclusion reached in the main opinion. In Seymour, the indictment charging the offense omitted an element of the offense. Specifically, the indictment charged Seymour with shooting into an occupied dwelling but failed to state the requisite mental state for the offense. Rejecting Seymour’s argument that this omission was a fatal jurisdictional error, this Court stated:

“The Alabama Code provides that ‘[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions ....’§ 12-11-30, Ala.Code 1975. The offense of shooting into an occupied dwelling is a Class B felony. § 13A-11-61(b), Ala.Code 1975. As a result, the State’s prosecution of Seymour for that offense was within the circuit court’s subject-matter jurisdiction, and a defect in the indictment could not divest the circuit court of its power to hear the case.”

946 So.2d at 538. Clearly Seymour turned on the presence of an indictment charging a felony within the court’s jurisdiction. An omission in the allegations set forth in the indictment did not divest the court of its power to hear the case. We therefore are not dealing with an indictment describing a felony plainly within the court’s jurisdiction, such as shooting into an occupied dwelling for which there is no corollary in the Code described as a misdemeanor, and merely omitting an element of that offense, as was the case in Seymour.

Because the State never charged Marshall in the indictment with the predicate offenses that made the DUI charge against him a felony prosecution, the trial court lacked jurisdiction over the misdemeanor DUI charged in the indictment. I would reverse the judgment of the Court of Criminal Appeals; therefore, I dissent.

      . Section 32-5A-191 was amended effective April 28, 2006. The 2006 amendment, among other things, added subsection (o) and redes-ignated what was subsection (o) as subsection (p).

      . If Justice Lyons's description of the indictment were correct, his argument would go to the jurisdiction of the circuit court ab initio, when the case was presented to it for trial in ihe first instance, not to any difference between the trial court's jurisdiction at the time of trial and its jurisdiction on remand after it had been established that the defendant had not had three prior DUI convictions within the previous five years.

      . The State does not ask us to revisit the holding in Ex parte Parker, 740 So.2d 432 (Ala.1999), and to examine whether a misdemeanor DUI is a lesser-included offense of felony DUI within the contemplation of the legislature for purposes of§ 12-11-30(2).

      . Unlike the present case, in Casey the defendant was indicted by a grand jury for misdemeanor DUI. The holding of the Court of Criminal Appeals that "[t]he dismissal of the felony DUI ... did not strip the circuit court of jurisdiction over the remaining misdemeanor charges,” 740 So.2d at 1139, was based on § 12-12-32(3), Ala.Code 1975, which provides that the district court will have original trial jurisdiction over misdemeanors except "[a]ny misdemeanor for which an indictment has been returned by a grand jury.”

      . As in Casey, the charge of misdemeanor DUI in Pruitt was the subject of a grand jury indictment.


author: WISE, Presiding Judge.

text:
    ALABAMA BOARD OF PARDONS AND PAROLES v. Leonard SMITH.
    CR-07-0160.
    Court of Criminal Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied June 12, 2009.

      Gregory 0. Griffin, Sr., chief counsel, and Steven M. Sirmon, asst. atty. gen., Alabama Board of Pardons and Paroles, for appellant.
    Joe Morgan Reed, Montgomery, for ap-pellee.
   WISE, Presiding Judge.

Leonard Smith, an inmate incarcerated in the Alabama Department of Corrections, filed a petition for a writ of certiora-ri, challenging a decision of the Alabama Board of Pardons and Paroles (“the Board”) regarding his parole consideration date. After the State responded, the circuit court conducted an evidentiary hearing and ordered that the Board set a parole hearing for Smith by no later than February 2010. This appeal by the Board followed.

In his petition, Smith alleged that, on October 22, 2002, he entered a plea of guilty to conspiracy to traffic in cocaine, a violation of §§ 13A-12-204 and 13A-12-231(2), Ala.Code 1975; that the trial court sentenced him to serve a term of 35 years in prison with a minimum of 15 years to be served; that he was given an initial parole consideration date of September 15, 2004; that family members informed him that the Board had initially decided to grant him parole; that, a few minutes later, Board members informed his family members that they had received new information and had set a new hearing date for October 20, 2004; and that, on October 4, 2004, he received notice that his parole hearing had been canceled and that his parole consideration dated had been reset for 2016. He also alleged that he later learned that the district attorney had protested the decision to release him on parole, arguing that the Board did not have the authority to release him until he served the mandatory minimum of 15 years in prison.

Smith challenged the Board’s decision, arguing that § 13A-12-231(2)c., Ala.Code 1975, does not specifically prevent him from being released on parole during the first 15 years of his sentence. Relying on Soles v. State, 820 So.2d 163, 165 (Ala.Crim.App.2001), in which this court held that “the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements,” the circuit court concluded that Smith was not required to serve a mandatory minimum term of 15 years. Therefore, it ordered that the Board set a parole hearing date for Smith.

The Board argues that the circuit court erred in relying on Soles and ordering that it set a parole hearing for Smith before he has served the mandatory minimum portion of his sentence. For the reasons set forth herein, we agree.

With regard to trafficking in cocaine, § 13A-12-23K2), Ala.Code 1975, provides:

“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine or of any mixture containing cocaine, described in Section 20-2-25(1), is guilty of a felony, which felony shall be known as ‘trafficking in cocaine.’ If the quantity involved:
“c. Is one kilo, but less than 10 kilos, then the person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and to pay a fíne of two hundred fifty thousand dollars ($250,-000).”

(Emphasis added.) Also, with regard to conspiracy to commit a controlled substance crime, § 13A-12-204(c), Ala.Code 1975, provides:

“A criminal conspiracy to commit a controlled substance crime shall be punished the same as the controlled substance crime that is the object of the conspiracy.”

Further, with regard to eligibility for parole on trafficking offenses, § 13A-12-232, Ala.Code 1975, specifically provides:

“(a) Notwithstanding the provisions of Chapter 22, Title 15, or any other provision of law, with respect to any person who is found to have violated Section 13A-12-231, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for any type of parole, probation, work release, supervised intensive restitution program, release because of deduction from sentence for good behavior under corrections incentive time act or any other type of early, conditional, or temporary release program, nor shall such person be permitted to leave the penitentiary for any reason whatsoever except for necessary court appearance and for necessary medical treatment, prior to sewing the mandatory minimum term of imprisonment prescribed in this article or 15 years, whichever is less. Nothing contained in this section shall be construed in any way to render any inmate eligible for parole, probation, suspended sentence, furlough, pass, leave, or any type or early, conditional, or temporary release program of any type to which the inmate is not otherwise eligible under other provision of law.
“(b) The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of Section 13A-12-231, except where the sentence is life imprisonment without parole, and who provides substantial assistance in the arrest, or in the conviction of any of his accomplices, accessories, coconspira-tors, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance. Under no circumstances may the judge reduce or suspend the sentence except upon motion of the prosecuting attorney.”

(Emphasis added.) Finally, as we noted in Soles, 820 So.2d at 164:

“ ‘The first rule of statutory construction is that the intent of the legislature should be given effect. Ex parte McCall, 596 So.2d 4 (Ala.1992); Volkswagen of America, Inc. v. Dillard; 579 So.2d 1301 (Ala.1991). However, when possible, the intent of the legislature should be gathered from the language of the statute itself. Dillard, supra. Thus, where the language of the statute is plain, the court must give effect to the clear meaning of that language. Ex parte United Service Stations, Inc., 628 So.2d 501 (Ala.1993); IMED Corp. v. Systems Eng’g Associates Corp., 602 So.2d 344 (Ala.1992).’
“Beavers v. County of Walker, 645 So.2d 1365, 1376-77 (Ala.1994). See also Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687, 689 (Ala.1991) (‘Words used in [a] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is clear and unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ (citations omitted)).”

The plain language of § 13A-12-204(e), Ala.Code 1975, establishes that a defendant who is convicted of conspiracy to traffic is to be punished the same as if he had actually been convicted of trafficking. See, e.g., Browder v. State, 728 So.2d 1108 (Ala.1997) (holding that the firearm enhancement provision in the trafficking statute is also applicable to a conviction for conspiracy to traffic in controlled substances). Also, the fact that the provisions of § 13A-12-232, Ala.Code 1975, are not included in § 13A-12-231, Ala.Code 1975, does not preclude the application of those provisions to the offense of conspiracy to traffic in cocaine. See Skinner v. State, 843 So.2d 820 (Ala.Crim.App.2002) (holding that the sentence enhancements set forth in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, apply to convictions for attempt to sell a controlled substance and for conspiracy to sell a controlled substance). Therefore, we conclude that the provisions of § 13A-12-232(a), Ala.Code 1975, are applicable to Smith’s sentence, even though he was convicted of conspiracy to traffic in cocaine rather than trafficking in cocaine.

In Soles, this court held that “the newly amended § 15-18-8 allows a trial judge to suspend a sentence imposed upon application of the school/housing enhancements.” Soles, 820 So.2d at 165. In reaching that conclusion, we noted that § 15-18-8(a)(l), Ala.Code 1975, had been amended after the latest statement by the Alabama Legislature with regard to the sentencing enhancements in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. Therefore, we concluded that the latest expression of the law by the Alabama Legislature superseded the probation proscriptions in the schoolyard and public housing project enhancement statutes.

This case is distinguishable from Soles. Although §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, expressly prohibited the sentencing court from imposing probation for those mandatory sentence enhancements, this court’s' holding in Soles was based on the conclusion that legislation amending the split-sentencing statute in § 15-18-8(a)(l), Ala.Code 1975, allowed for a trial court to suspend a sentence imposed upon application of the schoolyard and/or public-housing enhancements. Smith is serving a straight 35-year sentence and, unlike Soles, is not eligible for a split sentence. Therefore, the newly enacted provisions of § 15-18-8, Ala.Code 1975, do not apply to his case and do not supersede the language in § 13A-12-232, Ala.Code 1975, that prohibits eligibility for parole during the mandatory minimum period of incarceration.

Based on the plain language of § 13A-12-232(a), Ala.Code 1975, we conclude that Smith was required to serve a mandatory minimum period of 15 years in prison before he would be eligible for parole. As the Alabama Supreme Court observed in Ex parte Jones, 444 So.2d 888, 890 (Ala.1983):

“The legislature obviously intended that all persons convicted of trafficking would receive a minimum mandatory sentence (unless they fall within the express exception set out in § 20-2-81(b)) and that the sentence would be served. Neither the trial courts nor the Pardons and Parole Board has the power to reduce or suspend the mandated sentence. Williams v. State, 420 So.2d 91 (Ala.Crim.App.1982).”

The circuit court erred in granting Smith’s petition and ordering that the Board consider Smith for parole before he had served the mandatory minimum portion of his sentence. Accordingly, we reverse the circuit court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WELCH, WINDOM, and KELLUM, JJ., concur.

      . Because of our disposition of this issue, we need not address the remaining arguments the Board raises.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Gerald John D’AMBROSIO, Respondent.
    Nos. SC07-1369, SC08-256.
    Supreme Court of Florida.
    Nov. 12, 2009.
    Rehearing Denied Jan. 8, 2010.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Lorraine Christine Hoffman, Bar Counsel, Fort Lauderdale, FL, for Complaint.
    Gerald John D’Ambrosio, pro se, Boca Raton, FL, for Respondent.
   PER CURIAM.

We have for review a report and recommendation from a referee with regard to the misconduct of Gerald John D’Ambro-sio. We have jurisdiction. See art. V, § 15, Fla. Const. As we more fully explain herein, we approve the recommended sanction of disbarment.

FACTS

In July 2007, pursuant to Rule Regulating the Florida Bar 3 — 7.11(f) (contempt), The Florida Bar filed a petition for contempt and order to show cause directed to D’Ambrosio. Fla. Bar v. D’Ambrosio, Case No. SC07-1369 (hereinafter “contempt case”). This Court issued an order to show cause and after responses were filed a referee was appointed. The final hearing in the contempt case was conducted and concluded in February 2008.

Before the assigned referee completed the report in connection with the contempt case, he was also appointed as referee in another disciplinary case involving D’Am-brosio, Case No. SC08-256 (hereinafter “SC08-256”). Based on a motion by D’Ambrosio, and without objection from the Bar, it was determined that the designated referee would conduct a hearing in SC08-256 and provide a consolidated report that addressed both cases. In the report from that consolidated proceeding, the referee made the following findings and recommendations.

Contempt Case. In October 2006, in Florida Bar v. D’Ambrosio, 946 So.2d 977 (Fla.2006), the Court suspended D’Ambro-sio for one year. The suspension order was based on D’Ambrosio’s demonstration of “complete disrespect for the disciplinary process” by failing to give notice of his prior ninety-day suspension to his clients, the courts, and some opposing counsel. The one-year suspension, which began in November 2006, was to continue for a minimum of one year and thereafter until D’Ambrosio complied with specific terms and conditions established by the Court and secured reinstatement.

Despite being suspended, D’Ambrosio continued to occupy his former law office located in Boca Raton. He maintained his office telephone and fax numbers, and listed his office address and telephone number in the white pages of the telephone book. This contact information remains on his business letterhead. D’Ambrosio testified that since his suspension he only engages in non-legal business (for an entity called Media International Group) on the premises of his former law office. However, D’Ambrosio did not list that business on his office letterhead and it did not appear in the telephone listings.

In June 2007, while D’Ambrosio was under suspension, he wrote a letter to Gary Kurtz, an attorney in California. The first sentence of D’Ambrosio’s June 2007 letter to Kurtz stated: “I am counsel to Anglo Bio Tran” and affirmatively stated that he had provided legal opinions about the sufficiency of a complaint filed against Anglo Bio Tran and had discussed the legal course he would advise for his “client” in the extant or contemplated litigation. Kurtz reasonably believed D’Ambrosio was a Florida lawyer acting as in-house or general counsel for Anglo Bio Tran.

Based on the letter, as well as testimony presented at the hearing, the referee found D’Ambrosio guilty of engaging in the practice of law while suspended. He clearly represented himself to be a lawyer. The referee found D’Ambrosio acted in complete disregard of the Court’s two pri- or orders suspending him and in contempt of the Supreme Court of Florida.

Case No. SC08-256 (Disciplinary Case). In February 2005, while D’Am-brosio was still a member in good standing of The Florida Bar, Dr. Tom Bolera, D’Ambrosio’s friend and client, contemplated filing a legal malpractice action against his former counsel, John Pcolinski, an Illinois lawyer. D’Ambrosio was never admitted to the practice of law in the State of Illinois. Nevertheless, D’Ambro-sio assisted Bolera in filing and amending a civil action against Pcolinski in Illinois. D’Ambrosio researched Illinois law on the Internet. Further, D’Ambrosio knowingly allowed Bolera to use D’Ambrosio’s law office address, telephone number, and fax number as Bolera’s own address for purposes of the Illinois civil action.

On February 15, 2005, while D’Ambrosio was still a member of The Florida Bar, he wrote a letter to Pcolinski and directed the letter to Pcolinski’s law office in Illinois. In this letter, written on D’Ambrosio’s Florida law office letterhead, D’Ambrosio outlined his client’s claim against Pcolinski and expressed legal opinions about the claim. D’Ambrosio directed Pcolinski to contact his malpractice carrier and to call D’Ambrosio to discuss the case.

On August 18, 2006 (prior to his earlier suspension by this Court), D’Ambrosio wrote a second letter to Pcolinski, using his Florida law office letterhead. D’Am-brosio again outlined the basis for his client’s claim against Pcolinski, expressed legal opinions, and asserted accumulated damages. D’Ambrosio again directed Pco-linski to contact his malpractice carrier. Pcolinski has been a lawyer since 1986. He is admitted in Illinois and Arizona. Having received the communications from D’Ambrosio, Pcolinski reasonably believed that D’Ambrosio was serving as counsel to Dr. Bolera.

Thereafter, Pcolinski was served with a summons and complaint (and then an amended complaint), filed pro se by Bol-era. Pcolinski noted that the address used by Bolera was the same as D’Ambrosio’s office address. He initiated an investiga-, tion into D’Ambrosio’s conduct in the case, which revealed that D’Ambrosio was not admitted to the practice of law in Illinois. In January 2007, Pcolinski filed a complaint regarding D’Ambrosio’s conduct with The Florida Bar.

The referee took judicial notice of Rule Regulating the Florida Bar 4-5.5 (Unlicensed Practice of Law) and the comparable Illinois law on the subject: Illinois Rule of Professional Conduct 5.5 (Unauthorized Practice of Law). After considering these rules, the letters in evidence, and testimony, the referee found that D’Am-brosio engaged in the “unlicensed practice of law in Illinois” in violation of the Rules Regulating the Florida Bar.

The referee concluded that D’Ambrosio practiced law in the State of Illinois, without permission to practice in that jurisdiction, in violation of the rules of professional conduct in both states. The referee recommended that D’Ambrosio be found guilty of violating Rule Regulating the Florida Bar 4-5.5(a) (a lawyer shall not practice law in a jurisdiction other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction, or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so). Because D’Ambrosio knowingly and intentionally permitted, and even assisted, Bol-era in filing a false pleading in Illinois (by allowing Bolera to use D’Ambrosio’s law office address as Bolera’s address in a civil action), the referee recommended that D’Ambrosio be found guilty of violating Rules Regulating the Florida Bar 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). Because the foregoing misconduct was willful and intentional, the referee recommended that D’Ambrosio be found guilty of violating Rules Regulating the Florida Bar: 3-4.2 (violation of the Rules of Professional Conduct is a cause for discipline); 3-4.3 (the commission by a lawyer of any act that is unlawful or contrary to honesty and justice, whether the act is committed in the course of the attorney’s relations as an attorney or otherwise, whether committed within or outside the state of Florida, and whether or not the act is a felony or misdemeanor, may constitute a cause for discipline); and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another).

As to discipline, the referee recommended disbarment. In making this recommendation, the referee relied in part on D’Ambrosio’s cumulative misconduct. See Fla. Bar v. Golden, 566 So.2d 1286, 1287 (Fla.1990) (holding cumulative misconduct may be found when the misconduct occurs near in time to other offenses); Fla. Bar v. Lawless, 640 So.2d 1098 (Fla.1994) (recognizing that the Court generally imposes a greater sanction for cumulative misconduct than for isolated misconduct). Because the Bar prevailed in this case, the referee recommended that the Bar be awarded costs of $5,018.27.

The referee did not find any mitigating factors. With regard to aggravating factors, the referee found (a) prior disciplinary offenses — D’Ambrosio was admonished for incompetence by court order in April 1994; publicly reprimanded for neglect and trust accounting violations in July 1999; suspended for ninety days for misrepresentation in January 2002; and suspended for one year in October 2006 for contempt of court and violation of his previous ninety-day suspension; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; and (e) substantial experience in the practice of law— D’Ambrosio was admitted to The Florida Bar in 1987.

D’Ambrosio sought review of the referee’s findings of fact, recommendations of guilt, and recommended sanction. The Bar filed an answer brief and D’Ambrosio filed a reply brief.

ANALYSIS

First, D’Ambrosio asserts that the referee should have granted his motion to dismiss the Bar’s complaint, which was denied on May 5, 2008. D’Ambrosio argues that the referee did not properly address his arguments regarding the Bai*’s impermissible tactics. He asserts that the Bar intentionally delayed bringing the disciplinary case against him, assigned case number SC08-256, until it could be considered with the contempt case. D’Ambrosio claims this constitutes the unfair practice of “stacking cases” against a respondent. See Fla. Bar v. Rubin, 362 So.2d 12 (Fla.1978) (providing that the Bar is not free to withhold a referee’s report that it finds too lenient until additional cases can be developed against the affected attorney). D’Ambrosio argues that the referee did not fully address these arguments and that his motion should have been granted.

A ruling on a motion to dismiss based on a pure question of law is subject to de novo review. See Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006); see also Fla. Bar v. Roth, 693 So.2d 969, 972 (Fla.1997) (providing that the Court reviews the referee’s ruling on a motion to dismiss to determine if the referee erred). The May 5, 2008, order facially reflects that the referee held a hearing on May 1, 2008. One hour was scheduled for consideration of D’Ambrosio’s motion to dismiss. Under Florida law, motions to dismiss require the trier of fact to accept the factual allegations of the complaint as true and consider the allegations in the light most favorable to the nonmoving party. See Greene, 926 So.2d at 1199; Kaufman v. A-1 Bus Lines, Inc., 363 So.2d 61 (Fla. 3d DCA 1978). Further, it is inappropriate for the referee to determine factual issues at that stage in the proceedings. See Greene, 926 So.2d at 1199-1200. Pursuant to this case law, it would have been improper for the referee to have dismissed the disciplinary case, SC08-256, based simply on allegations of “stacking.” The referee was required to view the case in the light most favorable to the Bar, and the referee could not assume that the Bar had intentionally delayed the case.

In addition, approximately two months before the referee issued the order denying the motion to dismiss, D’Ambrosio had voluntarily agreed to consolidate the two cases. See Agreed Order Consolidating Cases for Disciplinary Recommendation and/or Report of Referee, Fla. Bar v. D’Ambrosio, Nos. SC07-1369 & SC08-256 (Fla. referee order filed Mar. 14, 2008). Thus, D’Ambrosio’s claim that the Bar engaged in stacking is meritless. In fact, the record reveals that D’Ambrosio’s counsel specifically stated during a hearing that D’Ambrosio agreed to the referee considering both cases together for the purposes of making a single recommendation of discipline. At that point, D’Ambrosio did not raise the “stacking” claims; in fact, D’Am-brosio again agreed to joint consideration of the two cases.

Thus, upon application of the law governing motions to dismiss, as well as D’Ambrosio’s agreement to consolidate the cases, we conclude that the referee properly denied D’Ambrosio’s motion to dismiss.

Second, D’Ambrosio asserts that the referee abused his discretion by “sua sponte” taking judicial notice of the Illinois rule regarding the unlicensed practice of law. This argument is also without merit. Contrary to D’Ambrosio’s claims, the record indicates that the referee did not take judicial notice of these matters sua sponte; rather, he did so at the request of Bar counsel, in open court, during the hearing. D’Ambrosio’s counsel, who was present, did not object.

Further, the referee did not take judicial notice of any disputable “facts”; the referee took notice of another state’s published rules. Section 90.202, Florida Statutes (2007), plainly states that a court may take judicial notice of:

(2) Decisional, constitutional, and public statutory law of every other state, territory, and jurisdiction of the United States.
(5) Official actions of the legislative, executive, and judicial departments of the United States and of any state, territory, or jurisdiction of the United States.
(7)Rules of court of any court of this state or of any court of record of the United States or of any other state, territory, or jurisdiction of the United States.

Pursuant to the statute, it is clear that the referee could take judicial notice of the Illinois disciplinary rule and any related case law.

In addition, it is well established that Bar disciplinary proceedings are quasi-judicial rather than civil or criminal. The referee is not bound by the technical rules of evidence. On review, a referee’s decision regarding the admissibility of evidence will not be disturbed absent an abuse of discretion. See Fla. Bar v. Tobkin, 944 So.2d 219, 224 (Fla.2006); Fla. Bar v. Rotstein, 835 So.2d 241, 244 (Fla.2002). The referee did not abuse his discretion by taking judicial notice of the material provided by Bar counsel in open court, during a hearing, regarding established Illinois law.

Third, D’Ambrosio asserts that the referee’s findings of fact are not supported by the evidence and, in turn, the findings of fact do not support the referee’s recommendation that D’Ambrosio be found guilty of violating the specified rules.

D’Ambrosio’s argument challenges the referee’s report on two levels: both the findings of fact and the recommendations of guilt. This Court has repeatedly stated that with regard to facts, this Court’s review is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. See Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). Thus, D’Ambrosio has the burden to demonstrate that the referee’s findings of fact are unsupported.

Next, the standard of review for a referee’s recommendations as to guilt is that the referee’s factual findings must be sufficient under the applicable rules to support the recommendations as to guilt. See Fla. Bar v. Shoureas, 913 So.2d 554, 557-58 (Fla.2005).

Contempt Case. D’Ambrosio admits it was poor judgment to refer to himself as “counsel to Anglo Bio Tran” in the letter he sent to California attorney Kurtz while D’Ambrosio was suspended. Nevertheless, D’Ambrosio claims that the statements in the letter were based on D’Ambrosio’s personal knowledge; therefore, his actions should not be viewed as engaging in the practice of law in violation of his suspension.

Findings of Fact D’Ambrosio has failed to meet his burden of showing that the referee’s findings of fact are unsupported. The record demonstrates that D’Ambrosio sent the letter to Kurtz while D’Ambrosio was suspended. D’Ambrosio was suspended for one year, effective November 2006, Florida Bar v. D’Ambrosio, 946 So.2d 977 (Fla.2006), and he has not been reinstated. The letter to Kurtz was dated June 28, 2007.

Further, the text of the letter plainly states: “I am counsel to Anglo Bio Tran.” The subject line provides a reference to the potential case — “Gould Adv. v. Anglo Bio Trans. PLC.” In addition, the referee is supported in finding that the letter provided legal opinions about the potential case, as the letter states:

The complaint you filed is bogus and does not reflect any agreement between Gould Advertising and any of the parties you identified in the complaint. The complaint is vague for several reasons, not the least of which is that no contract was ever entered into....
What you also failed to put in your complaint....
I will not advise to pay a nuisance claim, but have advised the parties to retain California counsel to defend this matter. They would then seek damages for the false representations your client has made.

Although D’Ambrosio argues that his letter to Kurtz did not represent legal opinions, his argument is erroneous. D’Am-brosio discussed several legal matters in his letter, such as the sufficiency of the complaint, the lack of a contract, and Gould’s failure to include certain documents with the complaint. Further, D’Ambrosio stated that he advised Anglo Bio Tran not to pay a “nuisance claim,” to retain California counsel, and to seek damages. These statements constitute the expression of legal opinions.

We conclude that the referee’s findings of fact, that D’Ambrosio engaged in the practice of law while suspended and that he held himself out as a lawyer while suspended, are supported by competent, substantial evidence in the record.

Recommendations of Guilt. We conclude that the referee’s factual findings are sufficient to support the recommendations as to guilt. See Shoureas, 913 So.2d at 557-58. The referee found that D’Ambro-sio acted in complete disregard of the Court’s prior suspension order and is in contempt of the Supreme Court of Florida. We agree — by continuing to practice law while suspended and holding himself out as an attorney, D’Ambrosio is guilty of violating the Court’s order of suspension.

Case No. SC08-256 (Disciplinary Case). D’Ambrosio notes the referee found that he assisted Bolera in filing and amending the civil action for malpractice in Illinois. D’Ambrosio claims his actions did not constitute the practice of law because one does not need to be a licensed attorney to research law on the internet; paralegals and untrained people engage in such research every day. D’Ambrosio asserts that the referee’s recommendation that he be found guilty of engaging in the unlicensed practice of law in Illinois is unsupported.

Findings of Fact. In the Illinois filing, D’Ambrosio permitted Bolera to use D’Ambrosio’s address as Bolera’s residential address. This finding is supported by the record.

Also, the referee found that D’Ambrosio “assisted Dr. Bolera in filing and amending a civil action against Mr. Pcolinski, in Illinois.” The record demonstrates that while D’Ambrosio was still licensed to practice law in Florida (before he was suspended), he sent two letters (in February 2005 and August 2006) to Illinois attorney Pcolinski in contemplation of a malpractice action against Pcolinski on behalf of D’Ambro-sio’s client Bolera. The two letters are in the record. These letters standing alone do not constitute a violation. However, D’Ambrosio engaged in further conduct. The record and testimony establish that D’Ambrosio was not licensed to practice law in Illinois and did not seek pro hac vice status. D’Ambrosio admitted researching Illinois law on the Internet to work on this case. In addition, the record demonstrates that while D’Ambrosio was suspended, D’Ambrosio used a paralegal so he could assist Bolera to proceed “pro se” in the Illinois matters. We conclude that the referee’s findings of fact are supported by competent, substantial evidence in the record.

Recommendations of Guilt. D’Ambro-sio allowed Bolera to file documents, in which Bolera claimed D’Ambrosio’s office address as his residential address. Such deliberately misleading information on a court filing violates rules 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice). Contrary to D’Ambrosio’s claims, we conclude that these facts support the referee’s recommendations of guilt. See Shoureas, 913 So.2d at 557-58.

Next, D’Ambrosio assisted Bolera in the civil action against Pcolinski. D’Ambrosio was not licensed to practice law in Illinois; indeed, his work with the paralegal demonstrates that he even continued to assist Bolera after he was suspended in Florida. An attorney cannot counsel others to do what the attorney is not permitted to do. See R. Regulating Fla. Bar 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another). Based on these facts, the referee’s recommendation of guilt is supported. See Shoureas, 913 So.2d at 557-58.

The referee also recommended that D’Ambrosio be found guilty of violating Rule Regulating the Florida Bar 4-5.5(a) (a lawyer shall not practice law in a jurisdiction other than the lawyer’s home state in violation of the regulation of the legal profession in that jurisdiction or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so) for practicing law in Illinois without admission or permission to practice in that jurisdiction, in violation of the rules of professional conduct in both Illinois and Florida. The case of Florida Bar v. Springer, 873 So.2d 317 (Fla.2004), provides guidance. Springer, a Florida attorney, was found to have practiced law in Georgia, where he was not licensed. A client asked Springer to defend him in a real property partition action in Georgia. Springer never filed a pro hac vice motion or a notice of appearance with the Georgia trial court. In fact, Springer did not file any documents with the court during the case and did not appear at trial. However, he did communicate with the plaintiffs counsel. Along with numerous other rule violations, the referee recommended finding Springer guilty of violating rule 4-5.5(a). The Court approved the referee’s recommendation of guilt.

D’Ambrosio’s letters to Pcolinski were on letterhead printed with “Gerald J. D’Ambrosio, Esq. Attorney at Law.” The subject line identifies the potential case of “Jafari et al v. Oak Brook Spine, et al.” In the letter dated February 15, 2005, D’Ambrosio stated that there was a judgment against Drs. Bolera, Leger, and Tric-hart in the amount of $160,702.61, and that they were “unable to minimize their damages because you failed to abide by discovery orders entered by the court.” After referring to a letter written by another attorney, a Mr. Cowden, “which outlines the problems they had with this case,” D’Ambrosio directs Pcolinski to “contact me and your malpractice insurance carrier.”

In the second letter, dated August 18, 2006, D’Ambrosio noted that the “matter has not been resolved,” that “[djamages have accumulated,” and the “cause of the damage was the entry of Summary Judgment and a Final Judgment based on the parties inability to call witnesses for discovery violations.” In the letter, he also stated that the “Illinois two (2) year statute will run on September 21, 2004. Please contact your insurance carrier in this matter. My clients have instructed me to retain Illinois counsel and file appropriate action.” D’Ambrosio’s actions did not end at this stage but he continued further.

D’Ambrosio’s letters appear to be communications between attorneys regarding a potential legal case. Further, D’Ambro-sio researched Illinois law on the Internet and assisted Bolera directly and through the services of a paralegal in filing and amending the civil action while he was suspended. Based on these facts, and pursuant to Springer, we conclude that the referee’s findings of fact are sufficient to support the recommendation of guilt for violating rule 4-5.5(a). See Shoureas, 913 So.2d at 557-58.

Fourth, D’Ambrosio challenges the referee’s recommended sanction of disbarment, arguing that the sanction is too harsh considering that he merely wrote a letter to a California lawyer while he was suspended.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. Y, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

If the facts were as simple and the conduct as inadvertent as D’Ambrosio asserts, the sanction of disbarment might seem harsh. He claims his only misconduct was writing the letter to California attorney Kurtz. Contrary to D’Ambrosio’s claims, crucial facts in the record, which were discussed during oral argument before the Court, indicate that D’Ambrosio engaged in significant misconduct. During oral argument, D’Ambrosio admitted that when he was suspended he used a paralegal to assist Bolera proceed “pro se” in the Illinois matters. Further, the record demonstrates that while he was suspended, D’Ambrosio engaged in a sham by using the paralegal so he could continue engaging in the practice of law.

In the hearings before the referee, D’Ambrosio testified that he recommended that Bolera use a paralegal to assist him. D’Ambrosio proposed an individual who had worked for D’Ambrosio. Thereafter, D’Ambrosio provided the Illinois forms to the paralegal and coordinated matters. As D’Ambrosio stated to the Grievance Committee in a hearing:

Question: Do you know who actually typed up these documents?
[D’Ambrosio’s] Answer: They were typed up by [the paralegal]. He emailed them to me. I printed them out. Sent them to — called Tom [Bolera] in. Said you’ve got to sign these things. Send them out.

The Bar asked D’Ambrosio, “Why would you be in the interface between the two [Bolera and the paralegal]?” D’Ambrosio replied, “They didn’t really know each other and Tom [Bolera] wasn’t paying [the paralegal].”

D’Ambrosio’s sworn statement, taken by The Florida Bar’s Grievance Committee, indicates that the paralegal never met or spoke with Bolera. D’Ambrosio was the conduit for any communications. The paralegal never sent anything directly to Bolera — the paralegal’s work was sent to D’Ambrosio, who then communicated with Bolera. D’Ambrosio admitted this was the procedure, especially for the amended complaint (which was filed subsequent to D’Ambrosio’s suspension) and an affidavit. Further, D’Ambrosio stated that he had an exhibit from the original complaint, which he had to include with the amended complaint.

In Florida Bar v. Forrester, 916 So.2d 647, 653 (Fla.2005), while the respondent was suspended for sixty days, she continued to operate her law practice by hiring and directing a young, inexperienced recent law school graduate. Even though she was suspended, Forrester directed the legal work and actively supervised the new associate’s work. Like D’Ambrosio, For-rester deliberately took this course of action, which was a sham, so the suspended attorney could continue engaging in the practice of law. The Court disbarred For-rester for her misconduct. Thus, the referee is supported by case law in recommending disbarment for D’Ambrosio.

D’Ambrosio was under suspension by order of the Court. Even though he was suspended, D’Ambrosio continued to engage in the practice of law by providing legal services to Bolera through the paralegal and writing to California attorney Kurtz. D’Ambrosio is guilty of contempt for willfully disobeying the Court’s order of suspension. Further, this is the second case in which D’Ambrosio has disobeyed the Court’s orders of suspension.

The Court does not hesitate to disbar attorneys who continue to engage in the practice of law while suspended. See Forrester, 916 So.2d at 654; Fla. Bar v. Heptner, 887 So.2d 1036 (Fla.2004); Fla. Bar v. McAtee, 674 So.2d 734 (Fla.1996). Further, in Florida Bar v. Brown, 635 So.2d 13, 13 (Fla.1994), we stated that a “[c]lear violation of any order or disciplinary status that denies an attorney the license to practice law generally is punishable by disbarment.”

In addition, D’Ambrosio has a disciplinary history which demonstrates that his conduct is not improving. He received an admonishment in 1994. D’Ambrosio was reprimanded in 1999. Fla. Bar v. D’Ambrosio, 737 So.2d 552 (Fla.1999) (table report of unpublished order). In 2002, he was suspended for ninety days. Fla. Bar v. D’Ambrosio, 814 So.2d 441 (Fla.2002) (table report of unpublished order). In 2006, the Court found that D’Ambrosio “demonstrated a complete disrespect for the disciplinary process by failing to comply with the disciplinary rules” and “willfully ignored this Court’s January 17, 2002, order of suspension.” Fla. Bar v. D’Ambrosio, 946 So.2d 977, 981 (Fla.2006) (imposing a one-year suspension on D’Ambro-sio because he had violated numerous rules, had four aggravating factors, and had no mitigating factors). During both suspensions, he has engaged in further misconduct. The Court generally imposes a greater sanction for cumulative misconduct, such as that demonstrated by D’Am-brosio, than for isolated misconduct. Fla. Bar v. Lawless, 640 So.2d 1098 (Fla.1994).

Accordingly, based on D’Ambrosio’s egregious misconduct and existing case law, we approve the referee’s recommended sanction and disbar DAmbrosio.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, and recommended discipline. The Florida Bar’s petition for contempt is granted. We hereby disbar Gerald John D’Ambro-sio effective immediately. Because D’Am-brosio has been suspended since November 18, 2006, it is unnecessary to provide him with thirty days to close out his practice of law to protect the interests of existing clients.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Gerald John D’Ambrosio in the amount of $5,018.27, for which sum let execution issue.

It is so ordered.

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

      . D'Ambrosio testified, and the Bar did not refute, that all signage identifying him as an attorney had been removed.

      . The Bar also alleged that D'Ambrosio engaged in the practice of law while suspended based on a letter written by Phyllis Folsom and sent to The Florida Bar. Due to insufficient evidence, the referee found that the Bar did not prove that D'Ambrosio engaged in the practice of law regarding the Folsom matter. Thus, the referee found D’Ambrosio not guilty of contempt regarding these events. Neither party has sought review of that issue.

      .Before the referee, D’Ambrosio also testified that he assisted Bolera in a civil action that was filed in Oregon. D'Ambrosio is not licensed to practice law in Oregon. The referee did not find any rule violations based on the Oregon matters, which arose at the hearing.

      . To support his position, D'Ambrosio presents arguments that rely heavily on his own testimony. The Court has long stated that because the referee is in the best position to judge the credibility of witnesses, his judgment regarding credibility should not be overturned absent clear and convincing evidence that his judgment is incorrect. See Fla. Bar v. Forrester, 916 So.2d 647, 652 (Fla.2005). This burden cannot be met merely by pointing to contradictory evidence when there is competent, substantial evidence in the record supporting the referee's findings. See Fla. Bar v. Glueck, 985 So.2d 1052, 1056 (Fla.2008). By pointing to his own testimony, D'Ambrosio has not satisfied his burden.

      . D'Ambrosio overlooks the requirement that paralegals work only under the supervision of an attorney. See R. Regulating Fla. Bar 4-5.3 (Responsibilities Regarding Nonlawyer Assistants); 10-2.1(b) (Paralegal or Legal Assistant). Further, as provided by chapter 10 of the Rules Regulating the Florida Bar, it is illegal for nonlawyers to advise others regarding their legal rights or to engage in the practice of law. See generally R. Regulating Fla. Bar 10-2.1(c) (Nonlawyer or Nonattor-ney).

      . D’Ambrosio claims that he has not engaged in cumulative misconduct. His argument is misguided. In Florida Bar v. D’Ambrosio, 946 So.2d 977 (Fla.2006), the Court held that D'Ambrosio violated the previous order that imposed a ninety-day suspension. Even though he was not found guilty of continuing to engage in the practice of law, he violated several disciplinary mies related to his suspension. Thus, by the previous case and the case herein, D’Ambrosio has repeatedly demonstrated disrespect of the Court’s orders of suspension. This repeated misconduct, as well as his other disciplinary history, demonstrates that D'Ambrosio has engaged in cumulative misconduct.


author: SHEPHERD, J.

text:
    Courtney ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2129.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is a direct appeal by Courtney Robinson of his convictions and sentences for fleeing to elude a police officer and burglary with the intent to commit the offense of resisting an officer without violence. We find no merit to Robinson’s first point on appeal, that the trial court erred by denying his motion for judgment of acquittal on the fleeing to elude charge. On Robinson’s second point, we find the court erroneously imposed consecutive habitual felony offender sentences against the defendant, because the two crimes for which Robinson was found guilty arose out of the same criminal episode.

On February 7, 2007, at approximately 11:30 p.m., a Miami-Dade police officer encountered a suspicious vehicle with dark tinted windows in the area of 152nd Avenue and 288th Street in Naranja, Florida. The officer ran the tag on the vehicle and learned it was not assigned to the car he was following. He then decided to conduct a traffic stop and activated his overhead police lights. The driver of the vehicle, who turned out to be Robinson, accelerated and made an “erratic” turn into a residential neighborhood, requiring the officer to deactivate his police lights pursuant to a police rule prohibiting police chases in the neighborhood. Although the officer tried to follow Robinson, Robinson made several quick turns and lost the officer. A short time later, the officer rediscovered the vehicle, Robinson included, parked in front of a house next to a chain link fence. The officer re-activated his police lights as he approached Robinson’s car, prompting Robinson to exit the vehicle, jump over the fence and run. The officer pursued on foot, but again lost his suspect.

One street away, Robinson somehow gained access to a home occupied by two women who apparently were known to him. He did not have permission to enter the home. When asked to leave, he refused, stating the police were after him. After one of the women was able to contact the police, officers arrived, entered the house and found Robinson hiding inside a bedroom closet.

Robinson was found guilty of fleeing to elude a law enforcement officer, burglary with the intent to commit the offense of resisting an officer, resisting an officer without violence, and driving with a suspended license. The trial court sentenced Robinson as a habitual violent offender on the two felony counts, and imposed consecutive sentences of thirty years in prison for burglary, followed by ten years for fleeing to elude a police officer. He further was ordered to serve 364 days for resisting an officer and sixty days for driving with a suspended license concurrent to his felony terms. The trial court erred in imposing the consecutive sentences.

The Florida Supreme Court has long held a trial court is not authorized to enhance both the defendant’s sentences as a habitual offender and make each of the enhanced sentences consecutive when they arise out of the same criminal episode. Hale v. State, 630 So.2d 521, 525 (Fla.1993). “There is ... no bright line ... for determining whether a criminal episode is single for purposes of evaluating consecutive enhancement sentences.” Wilcher v. State, 787 So.2d 150, 152 (Fla. 4th DCA 2001); see also Roberts v. State, 990 So.2d 671, 675 (Fla. 4th DCA 2008). Generally, the courts have considered whether separate victims are involved, whether the crimes occurred in separate locations, and whether there has been a temporal break between the incidents. Smith v. State, 650 So.2d 689, 691 (Fla. 3d DCA 1995). In this case, we find the temporal break factor to be decisive. Although the crimes were separate crimes, committed against separate victims — a police officer and two women — at different locations, they are united by the defendant’s sole purpose to elude the police officer and committed within a short period of time in the same neighborhood. For this reason, we reverse and remand this case for re-sentencing.

Affirmed in part; reversed in part with directions.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, etc., Petitioner, v. ASCLEPIUS MEDICAL, INC., a/a/o Roque Torres, Respondent.
    No. 3D09-3393.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Thomas L. Hunker, General Counsel, for petitioner.
    Downs Brill Whitehead and Kevin W. Whitehead, Coral Gables, for respondent.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Based on the authority of United Automobile Insurance Company v. A 1st Choice Healthcare Systems, 21 So.3d 124 (Fla. 3d DCA 2009), we grant the petition for writ of certiorari and quash the order of the Circuit Court Appellate Division affirming the final judgment in favor of Respondent.

Petition granted; order quashed.


text:
    Jose VELEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2702.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Jose Velez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order revoking the appellant’s probation and imposing sentence. We affirm the judgment and sentence but remand to the trial court to correct the probation revocation order to conform to the court’s oral pronouncement. As noted by the court, the State withdrew a portion of the affidavit of violation, so the paragraph entitled “Failure to Comply with Instructions” must be deleted from page two of the revocation order.

Defendant-appellant Velez has filed a pro se statement of points. In it he argues that he should not have been sentenced as a habitual violent felony offender. The only case which is before us on this appeal is Miami-Dade County circuit court case number 08-16805. The defendant was not sentenced as a habitual violent felony offender in that case.

The defendant’s complaint about the length of his sentence is without merit. See § 948.06(2)(e), Fla. Stat. (2008). The defendant’s remaining points are without merit.

Affirmed; remanded for correction of revocation order.


text:
    M.W., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3197.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See A.D. v. State, 939 So.2d 1126 (Fla. 3d DCA 2006).