text:
    M.R.J. v. D.R.B.
    2080764.
    Court of Civil Appeals of Alabama.
    Oct. 9, 2009.

      Larry E. Darby of Darby Law Firm, LLC, Montgomery, for appellant.
    Robert W. Hendrick of Hendrick & Hendrick, Wetumpka, for appellee.
   MOORE, Judge.

M.R.J. (“the mother”) appeals from a judgment of the Montgomery Juvenile Court awarding custody of Z.R.J. (“the child”) to the child’s father D.R.B. (“the father”) and awarding the mother liberal visitation at the discretion of the child’s guardian ad litem. We affirm in part and reverse in part.

This is the second time these parties have been before this court. See M.R.J. v. D.R.B., 17 So.3d 683 (Ala.Civ.App.2009). In M.R.J., this court set out the pertinent procedural history:

“The record reveals that the child was born in September 2003. Until the instant proceedings, the mother had maintained physical custody of the child since the child’s birth. The father testified that he had voluntarily paid some child support to the mother but that, at some point before December 2006, the mother had sought a formal adjudication regarding child support in the Montgomery Juvenile Court. In that proceeding, the juvenile court established the paternity of the child and ordered the father to pay the mother specified monthly child support.
“While the child-support proceeding was still pending, the father filed a complaint in the juvenile court on December 11, 2006, requesting that the juvenile court find the child dependent; award the father custody of the child, subject to the mother’s right to visitation; and require the mother to pay child support. On March 29, 2007, the mother filed her own complaint alleging the dependency of the child and requesting that the juvenile court award her legal custody of the child.
“On December 12, 2007, the juvenile court conducted an ore tenus proceeding to hear the competing complaints seeking custody of the child. On January 25, 2008, the juvenile court entered a judgment that made no determination as to dependency but stated, in pertinent part:
“ ‘Based on the foregoing, the Court finds and it is hereby ORDERED as follows:
“ T. That it is in the best interest of the minor child that the parties be and are hereby vested with joint legal custody of the minor child, with physical custody vested in [the father.]
‘2. That [the mother] is awarded liberal visitation, which shall be established by the Guardian ad Litem and submitted to the Court in writing for inclusion in this file.’
“The mother filed a timely notice of appeal and requested that the juvenile court appoint her an attorney on appeal.”

17 So.3d at 684-85 (footnote omitted).

On appeal, this court determined that this case was a custody-modification case and that the juvenile court had incorrectly applied the best-interests-of-the-child standard. 17 So.3d at 686. Thus, we reversed the juvenile court’s judgment and remanded the case for the juvenile court to analyze the evidence under the standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984). This court pretermited any discussion of the visitation issue. On remand, the juvenile court entered a judgment stating, in pertinent part:

“This [court] has reviewed the evidence, the [court] file & the transcript of the trial & has determined that the father met the McLendon standard for a change in custody. It was/is in the child’s best interest] that custody be vested in the father & the benefits of such a custody change outweigh the disruptive effects.”

On April 9, 2009, the mother filed a motion to alter, amend, or vacate the judgment; that motion was denied by operation of law on April 23, 2009. See Rule 59.1, Ala. R. Civ. P. The mother filed her notice of appeal that same day.

Facts

The mother had had custody of the child since the child’s birth. The mother admitted that, in 2004, she had been convicted of “shoplifting” and child neglect; those convictions resulted from the mother’s leaving the child, who was one year old at the time, and the mother’s two-year-old son in a hotel room while the mother went to a Wal-Mart discount department store and stole diapers. Joyce McCord, a social-service caseworker with the Montgomery County Department of Human Resources (“DHR”), testified that DHR had become involved with the family at that time. McCord testified that the child had been temporarily placed in the care of the child’s maternal grandmother. The mother testified that she had regained custody of the child but that her son’s father had successfully petitioned for custody of her son.

At the trial, the mother admitted that she had moved approximately 12 times since the child was born and that she had also changed jobs multiple times. The mother admitted that moving that much could not be good for the child. McCord, however, testified that the moves had not been detrimental to the child but that continued moves could become a problem once the child begins school. McCord testified that she believed that the mother had changed.

The father testified that the mother had told him that one of her previous boyfriends had “jumped on her” in front of the child. The mother admitted that she had told the father that, but she stated that she had been lying. The mother also admitted that she regularly drives without a license. Further, in January 2007, the mother pleaded guilty to driving without a license, driving without liability insurance, failing to have the child in a safety restraint, and running a red light. Both the father and the mother accused each other of not showing up for visitation exchanges. The father testified that, because the mother had changed telephone numbers several times, he had been unable to get in touch with her on occasions.

At the time of the trial, the mother had married and was living with her husband and the child in a three-bedroom house that was deemed acceptable by McCord. They had lived in that house for approximately two months. The father had lived in a three-bedroom house that he had shared with his wife and their two children for almost one year. He had been employed at the same job for over two years. He testified that the child gets along well with him, his wife, and the child’s half siblings. The father’s wife testified that she does not work outside the home and that she will be available to care for the child full time. The mother testified that the father had picked the child up without a car seat. The father, however, testified that the child was too old to need a car seat. Further, the mother admitted that she had not offered to let the father use her car seat. The father admitted to being behind on his child-support payments because he had been out of work for two months due to health problems. The father testified that his health problems were under control at the time of the trial.

McCord recommended that the child stay in the custody of the mother. The guardian ad litem recommended that the father be awarded custody.

Standard of Review

“ ‘When evidence in a child-custody case has been presented ore tenus to the trial court, that court’s findings of fact based on that evidence are presumed to be correct. The trial court is in the best position to make a custody determination—it hears the evidence and observes the witnesses. Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.’ ”

Burgett v. Burgett, 995 So.2d 907, 912 (Ala.Civ.App.2008), (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)).

Discussion

On appeal, the mother argues that the trial court exceeded its discretion in awarding custody of the child to the father. She also argues that the trial court exceeded its discretion in awarding the guardian ad litem sole discretion in determining the mother’s visitation.

Custody

“A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon[, 455 So.2d 863 (Ala.1984)]. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

Adams v. Adams, 21 So.3d 1247, 1252 (Ala.Civ.App.2009).

In the present case, the evidence indicates that the child’s lifestyle with the mother was very unstable. Although there was disputed testimony regarding the effect that instability had had on the child, the mother admitted that it could not be good for the child. Further, McCord admitted that the disruption caused by moving could become a problem when the child began school if the child were forced to change schools frequently. There was no indication that the mother’s lifestyle had stabilized, because the mother had been living in her home for only two months at the time of the trial. The mother had also taken actions that had endangered the child, most recently when she had run a red light while driving with the child who was not in a safety restraint. The mother had also previously left the child without supervision in a hotel while she went to a Wal-Mart store to steal diapers. Finally, we note that the father testified that the mother had not shown up for visitation exchanges and that she had failed to apprise him of her new telephone number when it changed. Based on the foregoing, we conclude that the trial court could have found that a material change in circumstances had occurred.

With regard to the father, the evidence indicates that he had been employed with the same company for over two years and that he had lived in the same house for almost a year. He testified that he could provide for the child better than the mother could. He also testified that the child gets along well with him, his wife, and the child’s half siblings. Further, the father’s wife testified that she does not work outside the home and that she will be available to care for the child full-time. Based on that evidence, the trial court could have determined that the “change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child.” Adams, 21 So.3d at 1252.

The mother also argues that McCord’s recommendation should have overridden the guardian ad litem’s recommendation. However, “[i]n reviewing a decision of the trial court, an appellate court is not permitted to reweigh the evidence, because weighing the evidence is solely a function of the trier of fact.” Ex parte McInish, [Ms. 1060600, Sept. 5, 2008] — So.3d -, - (Ala.2008). Thus, we find no merit in this argument. The mother also argues that the juvenile court was biased against DHR and that that prejudice adversely affected her; that her due-process rights were violated because she did not have notice that the McLendon standard applied; and that the juvenile court’s judgment on remand did not comply with this court’s instructions to analyze the evidence using the correct standard because the juvenile court did not make specific findings of fact. We note, however, that the mother failed to preserve those arguments because she did not present them to the juvenile court. Thus, we decline to consider them. See, e.g., Burleson v. Burleson, 875 So.2d 316, 322 (Ala.Civ.App.2003) (holding that “[t]his court may not consider an issue that is raised for the first time on appeal”).

Visitation

. Finally, the mother argues that the juvenile court exceeded its discretion in awarding the guardian ad litem sole discretion in determining the mother’s visitation. We agree. “ ‘Visitation is the joint right of both the noncustodial parent and the child.... The best interests of the child are furthered by the child being nurtured and guided by both of his or her natural parents.’ ” Jackson v. Jackson, 999 So.2d 488, 494 (Ala.Civ.App.2007) (quoting Johnita M.D. v. David D.D., 191 Misc.2d 301, 303, 740 N.Y.S.2d 811, 813 (N.Y.Sup.Ct.2002)). This court has consistently held that a judgment that leaves visitation to the sole discretion of the custodial parent is an abuse of discretion because it, in effect, awards no visitation. See, e.g., A.M.B. v. R.B.B., 4 So.3d 468, 471-72 (Ala.Civ.App.2007); Bryant v. Bryant, 739 So.2d 53, 56 (Ala.Civ.App.1999); and K.L.U. v. M.C., 809 So.2d 837, 841 (Ala.Civ.App.2001). The same principle applies when visitation is at the sole discretion of the child’s guardian ad litem. “A guardian ad litem is an attorney entitled to argue his or her client’s case to the court as is any other attorney, but he or she is not delegated any special authority of the court.” K.D.H. v. T.L.H., 3 So.3d 894, 899-900 (Ala.Civ.App.2008). Based on the foregoing, we conclude that the juvenile court exceeded its discretion in awarding, in effect, no visitation to the mother.

Conclusion

Based on the foregoing, we affirm the judgment with regard to the custody modification, we reverse the judgment with regard to visitation, and we remand the case for the entry of a judgment in accordance with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.


source: Caselaw Access Project

author: MAIN, Judge.

license: Public Domain

text:
    STATE of Alabama v. Brandon Clifford WATTS.
    CR-08-0728.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 2009.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Robert McIntyre Beno, Montgomery, for appellee.
   MAIN, Judge.

The State appeals the trial court’s pretrial dismissal of the two charges against Brandon Clifford Watts: breaking and entering a motor vehicle, a violation of § 13A-8-ll(b), Ala.Code 1975, and third-degree theft, a violation of § 18A-8-5, Ala. Code 1975.

The record indicates that when the trial court proceeded to call the present case for trial, the following transpired:

“THE COURT: All right. Mr. Brandon Watts. Is he here?
“[PROSECUTOR]: Your Honor, they told me they could be here—
“THE COURT: No, no, no. I told you the case — we’re going to try the case at 2.
“[PROSECUTOR]: Your Honor—
“THE COURT: All right. At this time — listen. Hold up, now—
“[PROSECUTOR]: Your Honor—
“THE COURT: No.
“[PROSECUTOR]: I—
“THE COURT: Listen. I cannot do this.
“[PROSECUTOR]: We’d ask for the Court’s indulgence.
“THE COURT: No.
“[PROSECUTOR]: He’s had childcare issues.
“THE COURT: No.
“[PROSECUTOR]: Your Honor, I’d ask you — [Defense counsel]—
“THE COURT: All right. At this case — at this time, the Court calls the case of the State of Alabama versus Brandon Watts.
“Is the State ready to proceed? Is the State ready to proceed?
“Get this on the record, [Court Reporter.]
“Is the State ready to proceed?
“[PROSECUTOR]: Your Honor, the State would like to make a motion to continue this case, at a minimum, tomorrow morning when our victims can be here—
“THE COURT: Why?
“[PROSECUTOR]: — for the trial.
“THE COURT: Why?
“[PROSECUTOR]: Your Honor, as this case was set, [defense counsel] had a conflict on Thursday. Our—
“[DEFENSE COUNSEL]: I had a conflict on Wednesday. I came—
“[PROSECUTOR]: On the day you were going to set it for-—
“THE COURT: the day the case-listen, now. You didn’t tell me or you didn’t make a motion for a continuance when I set this case for 2 o’clock today.
“[PROSECUTOR]: Your Honor, at that time our — our—one of your victims — there’s a female and a male. They’re both—
“THE COURT: Well, why ain’t one of them here—
“[PROSECUTOR]: Because—
“THE COURT: — so we can get the case started?
“[PROSECUTOR]: They took — the lady — the wife—
“THE COURT: Now, listen. I’m not going to let them — I’m not going to let them rule the Court.
“[PROSECUTOR]: I understand that.
“THE COURT: All right.
“[PROSECUTOR]: And I respect that, Your Honor.
“THE COURT: What says the — the State’s not ready to proceed? Motion for a continuance denied.
“[PROSECUTOR]: Your Honor, if you don’t—
“THE COURT: Motion for a continuance is denied.
“[PROSECUTOR]: If you don’t — I understand. If you don’t require them to be here during voir dire, we can go ahead right now.
“THE COURT: Well, they’ve got to be here to be qualified to the jury.
“[PROSECUTOR]: Can I present their names—
“THE COURT: No.
“[PROSECUTOR]: — to the jury?
“THE COURT: That’s not going to mean anything.
“[PROSECUTOR]: We can go — we can go ahead with the trial, because they’ll be here by the time that they need to be—
“THE COURT: No.
“[PROSECUTOR]: — need to testify.
“THE COURT: When I select this jury, they’re not going to testify.
“[PROSECUTOR]: Your honor, all I’m saying—
“THE COURT: And all I’m saying—
“[PROSECUTOR]: — is that throughout all this whole process, [defense counsel] has lied to me, and our victims deserve some sort of— .
“THE COURT: I don’t have — now, listen. I don’t know anything.
“[PROSECUTOR]: — understanding of what’s going on.
“THE COURT: I don’t have anything — they do. Now the case is set for trial. Why aren’t they here?
“[PROSECUTOR]: The — your Hon- or—
“THE COURT: The time is now 2:20.
“[PROSECUTOR]: Your Honor, they took off work yesterday.
“THE COURT: All right. Anything from the—
“[DEFENSE COUNSEL]: I move to dismiss the case.
“THE COURT: All right. I’ll grant it then. Case dismissed.”

(R. 1-5.)

Following further discussion between the trial court and the attorneys, the prosecutor moved the trial court to reconsider the dismissal and the trial court responded: “Well, if I did, your client’s not here.” (R. 16.) There is no indication in the record of any previous motion for a continuance having been made by the State in this case.

Thereafter, the prosecutor then filed a written motion to reconsider, arguing that the trial court improperly prevented the State from being allowed to proceed to trial because the victim and a witness (the victim’s wife) would not be able to be presented to the venire, although they would be present to testify at trial. The State argued:

“There is no law in Alabama that requires the victim or a witness to be present during voir dire to be presented to the venire. Furthermore, there is no law in Alabama that allows a judge to dismiss a case because the victim or a witness was not present during voir dire to be presented to the venire.”

(C. 12.) The trial court denied the motion. The State appealed.

The State argues on appeal that the trial court lacked the authority to dismiss the charges against Watts for want of prosecution and that, even if the trial court had such authority, the trial court abused its discretion by dismissing the charges after the prosecutor stated that he was ready to proceed.

“It is fundamental in our procedure that the court must necessarily be vested with discretion in the conduct of the trial and unless it clearly appears that there has been an abuse of discretion by the trial court, the appellate courts will not interfere, but will presume that the trial court accorded a fair and impartial trial to all litigants.” Carson v. State, 49 Ala.App. 413, 416, 272 So.2d 619, 622 (1973). “‘A trial court is vested with discretion in the conduct of a trial, and the appellate courts will not interfere with the exercise of that discretion unless it clearly appears that there has been an abuse of discretion. Shelton v. State, 384 So.2d 869, 870 (Ala.Cr.App.), cert. denied, 384 So.2d 871 (Ala.1980).’ Carden v. State, 621 So.2d 342, 346 (Ala. Crim.App.1992). See also Rheuark v. State, 601 So.2d 135 (Ala.Crim.App.1992).”

Baker v. State, 906 So.2d 210, 269 (Ala.Crim.App.2001), reversed on other grounds, Ex parte Baker, 906 So.2d 277 (Ala.2004).

Moreover,

“ ‘Generally, a party, whether represented by counsel or acting pro se, has a duty to keep abreast of the status of his case, and no duty rests on the court or opposing parties to advise him of the trial date. Bowman v. Slade, 501 So.2d 1236 (Ala.Civ.App.1987). Moreover, the dismissal of a case for lack of prosecution and the subsequent refusal to reinstate it are discretionary with the trial court. Bowman v. Slade.’ Waters v. Smith, 586 So.2d 22 (Ala.Civ.App.1991).”

Hart v. City of Priceville, 631 So.2d 301, 302 (Ala.Crim.App.1993) (addressing the dismissal of an appeal from the municipal court to the circuit court).

It is well settled that the process of voir dire examination remains within the sound discretion of the trial court. Clark v. State, 294 Ala. 493, 495, 318 So.2d 822, 824 (1975). “[I]t is in the discretion of the judge whether he will question the panel of jurors as to matters which tend to show interest or bias not amounting to disqualification, ... whether or not he is requested by counsel to do so.” Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 526, 63 So.2d 895, 896 (1953). ‘“The purpose of voir dire is to provide sufficient information on the jurors to enable the trial court to make a meaningful determination as to whether the veniremembers could be impartial.’ Pressley v. State, 770 So.2d 115, 124 (Ala.Crim.App.1999), aff'd, 770 So.2d 143 (Ala.2000).” Beckworth v. State, 946 So.2d 490, 514 (Ala.Crim.App.2005). Thus, to uncover bias, potential jurors are often asked whether they know the victim, the defendant, the attorneys, or any of the witnesses. See Rules 18.4(c) and (d), Ala. R.Crim.P. (generally addressing voir dire examination and its scope). This examination follows the qualification of the jury panel; a veniremember is not statutorily disqualified for knowing the victim. See § 12-16-60, Ala.Code 1975 (statutory grounds for disqualification). See also § 12-16-100, Ala.Code 1975 (discussing the process of drawing, selecting, and empaneling jurors). Section 12-16-150, Ala. Code 1975, enumerates general grounds for challenges for cause of a juror by either party, and, although being related to a defendant, the prosecutor, or the victim is listed as one of those grounds, being acquainted with or being a friend or associate of such a party is not. Thus, although a potential juror may be challenged for knowing the victim, this reason is not a statutorily recognized ground for a challenge for cause based on bias. Moreover, there is no statute or rule requiring a victim to be presented to the venire.

Here, the victim and his wife were not available to be presented to the venire to determine if any member of the panel may have known the victim or his wife. Similarly, if the victim or a witness was unavailable because of injury or death, he or she clearly would not be present. However, the prosecutor offered to present the names of the victim and his wife to the venire to determine bias. Despite some discussion after the trial court’s dismissal as to whether the victim had wanted Watts to be imprisoned, the prosecutor clearly stated that the victim and witness would be available and willing to testify at trial. Cf. Ready v. State, 574 So.2d 894, 902 (Ala.Crim.App.1990) (holding that the victim’s prior videotaped testimony from a preliminary hearing was admissible as testimony at trial where the victim was unavailable to testify).

After asserting that the victim and witness would be available for trial, the State announced that it was ready to proceed.

“ ‘A duty rests upon the prosecuting attorney to prosecute in his county or district, on behalf of the people, all public offenses. Where a statute so provides, the prosecuting attorney must initiate proceedings for the prosecution of persons charged with or reasonably suspected of public offenses, when he has information that such offenses have been committed.’ ”

Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 910 (Ala.1992). “It is the obligation of the attorney general and the district attorney to expose and prosecute crimes. In re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). Such is not the primary function of the judicial branch of government.” Dickerson v. State, 414 So.2d 998, 1008 (Ala.Crim.App.1982), abrogated on other grounds by Ex parte Bohannon, 564 So.2d 854 (Ala.1988). Cf. State v. Anderson, 8 So.3d 1038, 1037 (Ala.Crim.App.2008) (acknowledging the trial court’s frustration, but holding that that court exceeded its authority by dismissing the charge in a guilty plea when the State did not present witnesses to establish the factual basis of the plea after Anderson disputed them). See also State v. Salinas, 976 S.W.2d 870, 871 (Tex.App.1998) (“The Texas Constitution does not confer upon the trial court the general ability to maintain its docket by causing or preventing the dismissal of prosecutions. Rather, in this state, responsibility for maintaining or discontinuing criminal prosecutions is vested almost exclusively in the district and county attorneys, and not in the trial judges. Accordingly, a Texas trial court has no authority to dismiss a case, either on the defendant’s motion or on the court’s own motion, unless the prosecutor consents or the dismissal is otherwise authorized by constitution, statute, or common law.”) (footnotes omitted).

“While a trial court is thus authorized to dismiss an accusation, it may not do so in a manner ‘impermissibly interfer[ing] with the State’s right to prosecute.... ’ State v. Aldridge, 259 Ga.App. 673, 674(1), 577 S.E.2d 863 (2003).” State v. Carr, 287 Ga.App. 691, 692, 652 S.E.2d 597, 598 (2007). In District of Columbia v. Cruz, 828 A.2d 181, 183 (D.C.2003), the trial court dismissed the charges against Cruz before trial based on a rule of procedure and due to the prosecution’s lack of preparedness. The appellate court stated:

“Under Super. Ct.Crim. R. 48(b):
“ ‘a court has inherent authority to dismiss for want of prosecution. However, there are limitations on this authority to dismiss for want of prosecution: Such authority may not be exercised in an “arbitrary, fanciful, or clearly unreasonable” manner, and the court may dismiss with prejudice for want of prosecution only when it [has] concluded] that the defendant’s constitutional right to a speedy trial has been violated.’
“United States v. Mack, 298 A.2d 509, 510 (D.C.1972) (emphasis in original; internal citations omitted).”

(Footnote omitted.) In Cruz, the court concluded that the trial court’s dismissal was due to be reversed especially because Cruz did not assert a speedy-trial violation.

In Holtzman v. Goldman, 71 N.Y.2d 564, 523 N.E.2d 297, 528 N.Y.S.2d 21 (1988), the complaining witness could not be located on the day of trial and the people requested an adjournment or continuance; the trial court denied the motion and dismissed the charges. The appellate court reversed, stating:

“The power of the trial court to deny the People further adjournment is not disputed; the error lies in the corrective action it took after it did so. Trial courts are vested with statutory power to dismiss indictments, of course, but the power is not unlimited.”

71 N.Y.2d at 570, 523 N.E.2d at 301, 528 N.Y.S.2d at 25. See also Commonwealth v. Gonzalez, 237 S.W.3d 575 (Ky.Ct.App.2007) (holding that district court lacked authority to dismiss charges of driving under the influence, reckless driving, operating a motor vehicle without a seat-belt, and operating a motor vehicle without insurance without State’s consent, where dismissal was at Gonzalez’s request based on absence of arresting officer); Commonwealth v. King, 932 A.2d 948 (Pa.Super.Ct.2007) (holding that trial court improperly dismissed charges pretrial because the State did not disclose the identity of a confidential informant); State v. Fisher, 212 S.W.3d 378 (Tex.App.2006) (holding that the trial court was not authorized to dismiss misdemeanor charges without the State’s consent on the basis that the State had refused to consent to Fisher’s waiver of a jury trial).

“Countervailing the principle of the prosecution’s control of a criminal case are the trial court’s interest in controlling its own docket and the defendant’s right to a speedy trial. People v. Guido (1973), 11 Ill.App.3d 1067, 1070, 297 N.E.2d 18, 20, discussed the interaction between the former and latter considerations and held that both were adequately served by the constitutional right to a speedy trial (see generally Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101) and by the statutory enactments requiring trial within a specified time. (Ill.Rev.Stat. 1979, ch. 38, par. 103-5.) But presciently Guido alluded to the problem now before us:
“ ‘The conclusion we have reached does not leave the court powerless to control its calendar.(T)he court has contempt powers to require the State to appear. In the unlikely event that a prosecuting officer should refuse to proceed to trial after being ordered by the court to do so, the trial judge may order that the case proceed to trial.’ 11 Ill.App.3d 1067, 297 N.E.2d 18, 20.
“The same conclusion was also reached in People v. Thomas (1975), 24 Ill.App.3d 907, 908, 322 N.E.2d 97. The Thomas court said: ‘Where the motion for a continuance has been properly denied the case should be called for trial and if no evidence or insufficient evidence is presented by the People then a judgment of acquittal may be entered by the court.’ ”

People v. Mooar, 92 Ill.App.3d 852, 855, 416 N.E.2d 81, 84, 48 Ill.Dec. 186, 189 (1981).

Similarly, in the present case, the trial court could have imposed less stringent measures than dismissing the charges against Watts. Watts made no showing of prejudice, on speedy-trial ground or otherwise, as a result of the absence of the victim and witness for presentation to the venire; the victim and the witness would be available to testify for trial; and there was no indication of undue continuances. Under the particular circumstances of this case, the trial court abused its discretion in dismissing the charges. Because we find that the trial judge abused his discretion by dismissing the third-degree theft-of-property charge and the breaking and entering the vehicle charge based on the absence of the victim and his wife for presentation to the venire, its judgment is due to be reversed and this cause remanded for reentry of these charges against Watts.

REVERSED AND REMANDED.

WTNDOM and KELLUM, JJ„ concur. WELCH, J., concurs in the result. WISE, P.J., recuses herself.

      . The appellee is referred to as both “Brandon” and "Braden” throughout the record; however, for consistency, in this opinion we will refer to him as "Brandon.”

      . Although a different name appears for this speaker here and in two other comments, it appears that this is a typographical error. The comments indicate that the attorney was a prosecutor.

      . We note that in civil cases, a trial court is authorized by Rule 41(b), Ala.R.Civ.P., to dismiss a case for failure to prosecute.

      . Although the parties mention in their original briefs and the State argues in its reply brief that the trial court's dismissal of the case, as opposed to a nolle prosequi, prevented a re-indictment, citing State v. McNeill, 716 So.2d 250 (Ala.Crim.App.1998), that issue is not before us because it was not raised at the trial court. Moreover, as this Court noted in McNeill, 716 So.2d at 252, there had been no appeal from the trial court's order denying the State's motion to continue and dismissing the case; thus, there was no allegation of an abuse of discretion or error as a result of the trial court’s dismissal. Therefore, McNeill is not germane.


author: WELCH, Judge.

text:
    Marvin Lee DANIELS v. STATE of Alabama.
    CR-08-0760.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 2009.

      Glenn L. Davison, Mobile, for appellant.
    Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   WELCH, Judge.

On September 21, 2009, this Court issued an order setting aside its August 28, 2009, opinion in this case. The following opinion replaces that opinion.

A Mobile County grand jury charged Marvin Lee Daniels in case no. CC-08-775 with one count of rape, first degree, a violation of § 13A-6-61(a)(l), Ala.Code 1975; in case no. CC-08-776 with burglary, second degree, a violation of § 13A-7-6(b), Ala.Code 1975; and in cases no. CC-08-851 and no. CC-08-852 with sodomy, first degree, violations of § 13A-6-63, Ala. Code 1975. Daniels was tried by a jury and was convicted of all charges. The trial court sentenced Daniels, as an habitual felony offender, to life imprisonment for each conviction. Daniels appeals. Daniels filed a notice of appeal in cases no. CC-08-775, no. CC-08-776, no. CC-08-851, and no. CC-08-852, and Daniels indicated on the face of his appellate brief that he was appealing from all four convictions. However, Daniels did not present any argument on appeal challenging his convictions for first-degree rape in case no. CC-08-775 and for second-degree burglary in case no. CC-08-776. Regarding his appeal as to those cases, Daniels did not comply with Rule 28, Ala. R.App. P.; therefore, Daniels has waived any issue on appeal as to cases no. CC-08-775 and no. CC-08-776.

Daniels argues that his convictions for first-degree sodomy in cases no. CC-08-851 and no. CC-08-852 should be vacated because, he says, the indictments that charged him with sodomy failed to allege that he actually engaged in deviate sexual intercourse with either of the two victims and the indictments alleged, instead, that he induced the victims to commit deviate sexual intercourse with one another.

The State’s evidence tended to show the following. On July 17, 2007, Daniels entered the residence occupied by K.W. and her four children, one of whom was 14-year-old M.C. Daniels forced K.W. and M.C. to go into a bedroom and to remove their clothing. Daniels struck K.W. on her face when she protested. Daniels forced his fingers into K.W.’s vagina while he simultaneously forced M.C. to place her mouth on her mother’s vagina. Daniels forced K.W. to put her mouth on her daughter’s vagina. Daniels raped M.C. Daniels also forced K.W. to urinate on M.C. He then forced M.C. to place her mouth on his penis, and he forced K.W. to put her mouth on his penis. During the assault, KW.’s other children telephoned their father, and he came to the house. When K.W.’s husband arrived, Daniels fled from the scene. The police, who KW.’s husband had telephoned on his way to the house, arrived shortly thereafter.

Two days later, on July 19, 2007, K.W. contacted the Prichard Police Department to report that she had seen their assailant mowing a yard in the area. Daniels was apprehended, and K.W. and M.C. identified Daniels in photographic lineups.

In his brief on appeal, Daniels states:

“Daniels submits the indictments do not allege the crime of Sodomy, First [D]egree, despite their reference to § 13A-6-63. To allege this crime, the indictments should have specified that Daniels himself engaged in deviate sexual intercourse with the victims by forcible compulsion. By not making this allegation, it is clear that the indictments were directed at Daniels’ acts of forcibly compelling [M.C.] and [K.W.] to engage in deviate sexual intercourse with one another. Daniels submits those acts constitute the crime of Criminal Coercion, not Sodomy in the first degree.”

(Daniels’s brief, at pp. 9-10.)

Daniels also argues:

“The evidence presented by the state established that Daniels induced or caused both victims to engage in deviate sexual intercourse with someone other than Daniels, which is not a violation of the sodomy statute, but is, instead, the totally different crime of Criminal Coercion. While the state’s evidence also established that Daniels engaged in deviate sexual intercourse with both victims, he was not charged with this offense by the wording of either sodomy indictment.”

(Daniels’s brief, at p. 12.)

Section 13A-6-63(a)(l), Ala.Code 1975, provides that a person commits the crime of first-degree sodomy if he engages in deviate sexual intercourse with another person by forcible compulsion. One indictment charging Daniels with sodomy alleged that Daniels “did, through forcible compulsion, induce or cause [M.C.] to engage in deviate sexual intercourse, in violation of § 13A-6-63 of the Code of Alabama .... ” (C. 26.) The second indictment charging Daniels with sodomy alleged that Daniels “did, through forcible compulsion, induce or cause [K.W.] to engage in deviate sexual intercourse, in violation of § 13A-6-63 of the Code of Alabama....” (C. 28.)

“One of the fundamental purposes that an indictment serves, which has been referred to by the United States Supreme Court and also by this Court, is to apprise a defendant of the nature and cause of the accusation made against him in order that he can prepare an adequate defense.”

Ex parte State, 568 So.2d 857, 862 (Ala.1990) (footnote omitted).

“Rule 13.2(a), Ala.R.Crim.P., provides that an indictment ‘shall be a plain, concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment.’ In Alabama, ‘ “[a]n indictment is sufficient if it substantially follows the language of the statute violated, provided the statute prescribes with definitiveness the elements of the offense.” ’ Travis v. State, 776 So.2d 819, 836 (Ala.Crim.App.1997), aff'd, 776 So.2d 874 (Ala.2000), quoting Breckenridge v. State, 628 So.2d 1012, 1015 (Ala.Crim.App.1993).”

Whitman v. State, 903 So.2d 152, 157 (Ala.Crim.App.2004).

The indictments against Daniels substantially followed the language of § 13A-6-63, Ala.Code 1975, and they gave Daniels notice of the charges against him. Although, as Daniels alleges, the indictments did not charge that he engaged in deviate sexual intercourse with the victims, the indictments clearly allege that he forced the victims to engage in deviate sexual intercourse. Under Alabama law, those allegations sufficiently charged Daniels with sodomy.

Daniels’s argument — that he could not have been charged with sodomy because he only induced or caused both victims to engage in deviate sexual intercourse and he did not commit the act himself — is not a persuasive argument. By causing the victims to engage in deviate sexual intercourse, Daniels committed the crime of sodomy. Professor Wayne LaFave’s discussion of criminal liability is instructive here:

“A principal in the first degree may simply be defined as the criminal actor. He is the one who, with the requisite mental state, engages in the act or omission concurring with the mental state which causes the criminal result. In each section of this Treatise which deals with a substantive offense, the elements are defined in terms of what an actor, or first degree principal, must do to be guilty of that offense.
“One who uses an intermediary to commit a crime is not ordinarily a principal in the first degree. It is otherwise, however, when the crime is accomplished by the use of an innocent or irresponsible agent, as where the defendant causes a child or mentally incompetent or one without a criminal state of mind (most likely because the defendant has misled or withheld facts from him) to engage in conduct. In such a case the intermediary is regarded as a mere instrument and the originating actor is the principal in the first degree. The principal is accountable for the acts or omissions of the innocent or irresponsible person, and the principal’s liability is determined on the basis of that conduct and the principal's own mental state. Thus, if A, with intent to bring about B’s death, causes C (a child) to take B’s life, A is guilty of intent-to-kill murder. But because the crime of obtaining property by false pretenses requires an actual intent to defraud, A has not committed that crime by negligently causing B to make false statements to C.”

2 Wayne R. LaFave, Substantive Criminal Law § 13.1(a) (2d ed.2003)(emphasis added; footnotes omitted).

Although Alabama no longer draws a distinction between principals and accessories, see § 13A-2-20, Ala.Code 1975, the foregoing principle has been incorporated into statutory law in Alabama. Section 13A-2-22(a), Ala.Code 1975, states: “A person is legally accountable for the behavior of another if, acting with the culpable mental state sufficient for the commission of the offense in question, he causes an innocent person to engage in such behavior.” The Commentary to § 13A-2-22 provides, in relevant part:

“This section states the principle that one is responsible for the commission of a crime when procured through the overt behavior of an innocent or irresponsible person, and codifies previously existing law. Johnson v. State, 142 Ala. 70, 38 So. 182 (1904) (son of insane father guilty of murder for inciting father to kill); Berness v. State, 38 Ala.App. 1, 83 So.2d 607 (1953) (reversed on other grounds), aff'd, 40 Ala.App. 198, 113 So.2d 178, cert. denied, 269 Ala. 694, 113 So.2d 183 (1958) (owner in control of car liable for manslaughter for knowingly permitting intoxicated person to drive in such manner that death results). While this issue has been before the Alabama courts only rarely, the principle embodied in this section is well-founded at common law and is almost universal in application.”

Daniels’s argument — that his actions did not constitute sodomy as the statute intended because he did not engage in the deviate sexual intercourse, himself — therefore fails. Daniels’s actions in directing the sodomy of a mother by her daughter and the sodomy of the daughter by her mother were perhaps more unusual than many aberrant acts of sodomy that are perpetrated on victims of sexual assaults, but Daniels was properly charged with sodomy because he acted with the necessary intent and caused innocent persons to engage in deviate sexual intercourse with one another.

Although no appellate court opinion in Alabama has addressed this precise issue, our research has revealed that other states have addressed claims similar to the one Daniels has raised here — that he could not have been indicted for the actions of innocent participants even though he caused those actions to be performed — and have rejected those claims. For example, in State v. Thomas, 619 S.W.2d 513 (Tenn.1981), the defendant forced a wife at gunpoint to perform fellatio on her husband, and then to perform fellatio on the defendant. The jury found the defendant guilty of both acts of criminal sexual conduct, and on appeal, the Tennessee Supreme Court held:

“The conviction of the defendant under § 39-3703[, Tenn.Code Ann. (Cum. Supp.1978),] poses no problem with regard to the count charging the defendant with forcing the wife to perform fellatio upon himself. When the defendant forced the wife to perform fellatio upon her husband, however, the defendant was not the person who engaged in the direct sexual penetration of the victim. Nevertheless, we hold that the defendant is criminally liable as a principal for the offense with which he was charged.
“At common law, the distinction between principals in the first and second degree had important procedural and substantive consequences. A principal in the first degree was one who actually committed the crime. A person who aided and abetted a crime and who was present at the scene of the crime was classified as a principal in the second degree. Although modern statutes have abolished some of the procedural consequences of the distinction ..., in some instances the distinction remains valid. Thus, the defendant here, as the only criminal actor, cannot be convicted as an aider or abettor T.C.A. §§ 39-109 and 110, because those statutes ‘presuppose that a principal exists’ who can be aided by the defendant. Lundy v. State, 521 S.W.2d 591, 596 (Tenn.Crim.App.1974).
“The defendant is, however, criminally liable under the common law rule regarding the use of innocent agents as the instrumentality of a crime.
“Tf a person causes a crime to be committed through the instrumentality of an innocent agent, he is the principal in the crime, and punishable accordingly, although he was not present at the time and place of the offense, as is ordinarily required to render one guilty as a principal. As between him and the innocent agent, there is no such relation as principal in the first and second degree or principal and accessary; he alone is the guilty party. Under such circumstances, an exception to the rules applicable to principals and accessories, in the trial of criminal cases, arises ex necessitate legis.’
“22 C.J.S. Criminal Law § 84 at 249. See, also, W. LaFave & A. Scott, Criminal Law § 63 (1972).
“This rule of criminal liability has not been modified by statute. It cuts across all offenses, for the most part, regardless of the statutory wording of the offense, just as do the rules regarding aiders and abettors, accessories before the fact and accessories after the fact. The defendant who forces an innocent party to commit armed robbery, burglary, rape, incest, etc., is guilty as the only principal, even though the defendant does not commit the crime with his own hand.
“In the situation before us, both husband and wife were victims and both were used as innocent agents of the defendant in the perpetration of the crime. The defendant committed the act of ‘sexual penetration’ by means of these agents and he was properly found guilty.”

State v. Thomas, 619 S.W.2d at 514-15 (emphasis added).

In Parnell v. State, 323 Ark. 34, 912 S.W.2d 422 (1996), Parnell was convicted of rape after he forced his two adopted children to engage in sexual intercourse with one another. Parnell argued on appeal that he could not be guilty of rape if the two children themselves were not guilty of that crime. The Arkansas Supreme Court noted that the male child was 9 or 10 years old when he had sexual relations with his 8-year-old sister, and that he had clear defenses to any charge of rape, one of which was that he acted under the duress of his adoptive father, Parnell. The Court upheld Parnell’s conviction and explained that Parnell was guilty because he committed the crime using an innocent agent. The Court stated:

“The fact that B.P. [the male victim] would not be guilty of a crime, however, does not inure to Parnell’s benefit. An Arkansas statute specifically embraces the circumstances of the instant case and expressly makes complicitous conduct a crime:
“ ‘A person is made criminally liable for the conduct of another person when:
“ ‘(3) Acting with the culpable mental state sufficient for the commission of the offense, he causes another person to engage in conduct that would constitute an offense but for a defense available to the other person.’

“Ark.Code Ann. § 5-2^02 (Repl.1993); see also ArkCode Ann. § 5-2-405 (Repl. 1993). A plain reading of § 5-2-402(3) renders Parnell criminally culpable irrespective of B.P.’s age defense or the fact that he acted only under duress....

“Our statutory law, as codified at § 5-2-402(3), resembles § 2.06(2) of the Model Penal Code:

‘“A person is legally accountable for the conduct of another person when:
“ ‘(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct....’
“Model Penal Code § 2.06 (Am.L.Inst. 1985). The Comment to § 2.06(2) recognizes that the subsection is based on the universally recognized principle that one is no less guilty of the commission of a crime because he uses the overt conduct of an innocent agent. The Commentary to § 5-2-402(3), as originally codified at Ark.Code Ann. § 41-302 (Repl.1977), specifically acknowledged § 2.06 of the Model Penal Code and this principle.
“Our interpretation of § 5-2-402(3) in this matter is consistent with results reached in other jurisdictions. See Morrisey v. State, 620 A.2d 207 (Del.1993); State v. Harvey, 303 Or. 351, 736 P.2d 191 (1987); State v. Presley, 694 S.W.2d 867 (Mo.App.1985). In Morrisey v. State, supra, the Delaware Supreme Court reviewed a case where a defendant was convicted of multiple counts of unlawful sexual intercourse for forcing two couples at apparent gunpoint to engage in various sexual acts. The defendant argued on appeal that the innocent couples were voluntary social companions and neither forced the other into sexual activity. The Supreme Court dismissed the defendant’s argument and looked both to Delaware law concerning complicitous conduct and to Model Penal Code § 2.06 in affirming the convictions. The Court stated:
‘“It is well-established at common law that an individual is criminally culpable for causing an intermediary to commit a criminal act even though the intermediary has no criminal intent and is innocent of the substantive crime.’
“Morrisey, 620 A.2d at 211. The Court concluded that the innocent intermediaries were ‘viewed legally as only an instrumentality of the crime, and that the defendant was the principal perpetrator. Id.
“In State v. Harvey, supra, the defendant contended on appeal that he could not be convicted of rape for forcing his 14-year-old son to engage in sexual acts with his 11-year-old stepdaughter. The Oregon Court of Appeals agreed, but the Oregon Supreme Court reversed and reinstated the rape convictions. In doing so, the Supreme Court invoked an Oregon statute on complicity which is similar to ours in Arkansas and wrote that under the statute it ‘is no defense for the adult defendant that his juvenile son could not be criminally tried for first degree rape although an adult could be.’ Harvey, 736 P.2d at 192.
“And, finally, in State v. Presley, supra, the defendant was charged with rape for aiding and encouraging his 14-year-old stepson to have sexual intercourse with his adoptive daughter who was less than 14. The defendant argued that due to the age of his stepson, he could not be guilty of rape, but the Missouri Court of Appeals held that that fact did not absolve the defendant under Missouri statutes. The Court observed that Missouri’s complicity statute included, as a basis for liability, instances when a defendant causes an innocent person to commit the criminal acts.”

Parnell v. State, 323 Ark. at 37-39, 912 S.W.2d at 424-25 (emphasis added).

Although we hold here that, under Alabama law, Daniels was legally accountable for the acts he caused the innocent victims here to perform and that he was properly charged with sodomy because he acted with the necessary intent and he caused innocent persons to engage in deviate sexual intercourse with one another, we note that our interpretation of the principles regarding Daniels’s criminal accountability under these facts is similar to the interpretation of several of our sister states.

The trial court did not err when it denied Daniels’s motion for a judgment of acquittal on grounds that the sodomy indictments failed to properly charge him with sodomy.

Based on the foregoing, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . We are using initials to preserve the anonymity of the victims, as required by Rule 52, Ala. R.App. P.


text:
    STATE of Alabama v. Chantnell Denise ROBERTSON.
    CR-08-0903.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 2009.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellant.
    Angela Colette Starr, Montgomery, for appellee.
   WELCH, Judge.

The State of Alabama appeals the circuit court’s pretrial dismissal of a charge of disorderly conduct. See Rule 15.7, Ala. R.Crim. P. A Montgomery County grand jury charged Chantnell Denise Robertson with resisting arrest, a violation of § 13A-10-41, Ala.Code 1975; disorderly conduct, a violation of § 13A-11-7, Ala.Code 1975; criminal mischief in the second degree, a violation of § 13A-7-22, Ala.Code 1975; and harassment, a violation of § 13A-11-8(a), Ala.Code 1975. Robertson pleaded guilty to all charges, but, at the guilty-plea hearing, held on August 9, 2007, the trial court found that there was no factual basis for the pleas of guilty to the charges of disorderly conduct and resisting arrest and it refused to accept Robertson’s pleas to those charges. The trial court dismissed those charges. The court accepted Robertson’s pleas of guilty to the charges of criminal mischief and harassment. The State appealed the trial court’s dismissal of the disorderly-conduct and resisting-arrest charges. On appeal, this Court reversed the trial court’s dismissal of those charges, holding that the trial court had erred in dismissing the charges based on its determination that there was no factual basis for Robertson’s pleas of guilty to those charges. State v. Robertson, 8 So.3d 356 (Ala.Crim.App.2008). Instead of dismissing the charges, this Court said, the trial court should have refused to accept the pleas for which it found no factual basis and then allowed the district attorney to determine his next course of action. This Court directed the circuit court to reinstate those counts of the indictment.

On remand, a status hearing was held on February 13, 2009. Robertson again indicated that she wanted to plead guilty to the charges of disorderly conduct and resisting arrest, “as we attempted to do initially,” Robertson said. (R. 4.) The court then conducted a guilty-plea colloquy, and Robertson pleaded guilty to both charges. Robertson testified about her actions on the day of the incident. The trial court stated: “I’m trying to wrap my mind around whether or not I got — I see the resisting arrest, just having trouble with the disorderly conduct.” (R. 18-19.) The trial court and the prosecutor discussed whether the State could establish both resisting arrest and disorderly conduct. During that discussion, the trial court stated:

“Either you got disorderly conduct or you have resisting arrest. I — in my mind, now, I’ll dismiss this case again and it can go back up to the court again. I don’t care. All right. But I’m trying to give you an opportunity to explain to me why you think you got both.”

(R. 21-22.)

At the conclusion of the hearing, the trial court stated: “I’ll accept your plea on resisting arrest and I’ll dismiss for a second time the disorderly conduct.” (R. 22-23.) The State again appealed the dismissal of the disorderly conduct charge.

The State argues on appeal that the trial court’s ruling must be reversed because, it says, the trial court failed to follow this Court’s directions on remand and that it should not have dismissed the disorderly conduct charge. We agree with the State.

“The general rule is as follows:

“ ‘On remand, the issues decided by the appellate court become law of the case and the trial court’s duty is to comply with the appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.” Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983) (emphasis added [in Walker ]). When the mandate is not clear, the opinion of the court should be consulted. See Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972).’
“Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ.App.1983).”

Franks v. State, 651 So.2d 1114, 1117 (Ala.Crim.App.1994).

In our previously issued opinion in this case, we thoroughly discussed the principle that Alabama law does not provide for the dismissal of an indictment based on the possible lack of evidence, and we held:

“Instead of dismissing the charges, the court should have refused to accept Robertson’s pleas to the counts it found had no factual basis and then allowed the district attorney to determine his next course of action. By dismissing the charges the circuit court usurped the authority granted exclusively to the district attorney.
“Accordingly, the circuit court’s ruling dismissing the resisting-arrest and disorderly-conduct charges is reversed, and the court is directed to reinstate those counts of Robertson’s indictment.”

8 So.3d at 357 (citation omitted).

This Court’s mandate in the previously issued opinion was clear, and the trial court failed to follow that mandate when it dismissed the disorderly conduct charge against Robertson for a second time.

Before a trial, the trial court has no authority to dismiss a charge based on its own evaluation of the proposed evidence or lack thereof. Its role during a guilty-plea colloquy is to evaluate the factual basis for the plea and decide whether to accept the plea. This was clearly stated in our order on remand, and a trial court is no more entitled to ignore an order on remand from an appellate court than a litigant in the trial court would be entitled to ignore an order issued by the circuit judge.

Therefore, the circuit court’s ruling dismissing the disorderly conduct charge is again reversed, and that court is again directed to reinstate that count of Robertson’s indictment.

REVERSED AND REMANDED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . In this case, the defendant's name is spelled “Chantnell Denis Robertson.”


author: WALLACE, Judge.

text:
    James Vincent HORNE, a/k/a James V. Horne, a/k/a Jimmy Horne, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2882.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2010.
    Rehearing Denied April 21, 2010.
    James Vincent Horne, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

James Vincent Horne appeals from the new sentences imposed on him in Hillsbor-ough County Circuit Court Case numbers 03-3751, 03^387, 03-18904, 04-12645, OS-13573, and 05-18021, following remand. In Mr. Horne’s prior appeal from the circuit court’s order denying his motion to correct illegal sentence, we vacated Mr. Horne’s sentences and directed the circuit court to resentence him on all counts in all six cases. Horne v. State, 6 So.3d 99, 102 (Fla. 2d DCA 2009). In this appeal, Mr. Horne argues — among other things — that the circuit court again imposed illegal sentences contrary to this court’s mandate. We find Mr. Horne’s arguments to be without merit. In some instances, Mr. Horne’s arguments are also unpreserved. We write to address his claim that on count one of case number 04-12645 the circuit court should not have imposed any sentence greater than 87.525 months.

In case number 04-12645, Mr. Horne was charged as follows: count one, delivery of a controlled substance (methamphetamine) in violation of section 893.13(l)(a), Florida Statutes (2003), and count two, possession of a controlled substance (methamphetamine) in violation of section 893.13(6)(a). Methamphetamine is a controlled substance named or described in section 893.03(2)(c)(4), and delivery of methamphetamine is a second-degree felony under section 893.13(l)(a)(l).

Mr. Horne’s scoresheet established his minimum permissible sentence under the Criminal Punishment Code as 87.525 months’ incarceration. Horne, 6 So.3d at 100. The circuit court originally sentenced Mr. Horne in case number 04-12645 to seventy-seven months’ incarceration, followed by twelve months’ community control, followed by four years’ drug offender probation on count one and to seventy-seven months’ incarceration on count two. Thus the total sentence on count one was 137 months, or 11.417 years. The sentences on counts one and two were designated to run concurrently.

In his motion to correct illegal sentence, Mr. Horne claimed — among other things— that the imposition of drug offender probation on his conviction for delivery of a controlled substance in ease number 04-12645 created an illegal sentence because this offense was not enumerated in the drug offender probation statute. Id. at 101. We agreed that the imposition of drug offender probation on the conviction for delivery of a controlled substance created an illegal sentence. Id. at 102. Thus we held that the postconviction court erred in denying Mr. Horne’s claim on this ground. Id.

On remand, the circuit court imposed seventy-seven months’ incarceration, followed by twelve months’ community control, followed by four years’ standard probation on count one, and it reimposed seventy-seven months’ incarceration on count two. In accordance with our mandate, the circuit court substituted standard probation for drug offender probation. Once again, the sentences on counts one and two were designated to run concurrently.

Mr. Horne argues that the circuit court should not have imposed any sentence on count one greater than 87.525 months, the lowest permissible sentence under the Code, because the lowest permissible sentence under the Code exceeded the statutory maximum sentence of five years. In support of his argument, Mr. Horne relies on some statements in this court’s prior opinion:

Further, we note that the sentence imposed for delivery of a controlled substance in case number 04-12645 — seventy-seven months’ incarceration followed by twelve months’ community control followed by four years’ drug offender probation — is also illegal for the same reasons addressed in claim one. It exceeds both the statutory maximum and the minimum permissible sentence set forth by the Code.

Id. at 102.

We disagree with Mr. Horne’s argument that the new sentence on count one of case number 04-12645 exceeds both the statutory maximum sentence and the minimum permissible sentence under the Code. As previously noted, Mr. Horne’s minimum permissible sentence under the Code was 87.525 months’ imprisonment. Although our prior opinion might be read to suggest otherwise, the statutory maximum sentence for delivery of methamphetamine is fifteen years’ imprisonment. §§ 775.082(3)(c), 893.03(2)(c)(4), 893.13(l)(a)(l), Fla. Stat. (2003). Mr. Horne’s sentence of seventy-seven months’ imprisonment, followed by twelve months’ community control, followed by four years’ standard probation amounts to a total sentence of 137 months or 11.417 years. Thus his new sentence on count one of case number 04-12645 does not exceed the statutory maximum of fifteen years’ imprisonment.

The implication in our prior opinion that a sentence of 137 months would exceed the statutory maximum- for the crime for which Mr. Horne was convicted in count one of case number 04-12645 was obviously in error. This statement was dicta and does not fall within the law of the case doctrine. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105-07 (Fla.2001); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983); Myers v. Atl. Coast Line R.R., 112 So.2d 263, 267 n. 6 (Fla.1959).

For the foregoing reasons, we affirm the new sentences imposed on Mr. Horne in all respects.

Affirmed.

WHATLEY and LaROSE, JJ., Concur.

      . The Criminal Punishment Code applies "to all felony offenses, except capital felonies, committed on or after October 1, 1998.” § 921.002, Fla. Stat. (2003).

      . The crime defined in section 893.13(l)(a) may constitute a second-degree felony, a third-degree felony, or a first-degree misdemeanor depending on the nature of the controlled substance involved. Our prior opinion did not state the nature of the controlled substance that Mr. Horne was charged with delivering.


author: PER CURIAM.

text:
    Ronald PHILLIPS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0879.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    Rehearing Denied May 12, 2010.
    Ronald Phillips, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Richard SHIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1084.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    Rehearing Denied May 13, 2010.
    Richard Shiver, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


author: ROWE, J.

text:
    Kevin Brian BASS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-528.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Rehearing Denied May 13, 2010.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

The appellant, Kevin Brian Bass, appeals his conviction of sexual battery on a child less than 12 years old. The appellant raises two issues on appeal: (I) whether the trial court abused its discretion by not questioning a juror who appeared upset and who made comments indicating that she was upset, and (II) whether the trial court erred by allowing the state to introduce several witnesses who testified regarding out-of-court statements made by the child victim. We affirm as to both issues.

We reject the appellant’s assertion that the trial court abused its discretion by not questioning a juror who was temporarily upset after hearing the testimony of the five year-old victim. The record reveals that upon returning from a brief recess following the victim’s testimony, the juror “seemed a little teary” and made a comment to the court security officer during the recess indicating that she was upset. When brought to the trial judge’s attention, he addressed the jury by stating that he was aware of the difficult subject matter, but as the finders of fact they should not be influenced by feeling angry at or sorry for anyone; additionally, they should not allow prejudice, bias, or sympathy to influence their decision; instead, they should keep an open mind and hear all the evidence. After the jury instructions were read, the juror “cleared up.”

During the next break, outside of the presence of the jury, the trial court entertained arguments from both sides regarding the juror. The defense counsel expressed concern that the juror might be sympathetic towards the victim and that she had predetermined her decision prior to the presentation of all the evidence. The trial court declared that it was going to allow the juror to remain on the jury, but it would observe her and would revisit the situation if necessary. The record does not demonstrate that the juror was observed to exhibit any other emotional expressions. The record reflects that the juror subsequently approached the court security officer on her own and told the officer that she was “doing better.”

Dealing with the conduct of jurors is left to the sound discretion of the trial court. See Gore v. State, 475 So.2d 1205, 1209 (Fla.1985); Bauta v. State, 698 So.2d 860, 861-62 (Fla. 3d DCA 1997). The appellant argues that in this case it was error for the trial court to require the juror to “tough it out,” citing Thomas v. State, 748 So.2d 970 (Fla.1999), for the proposition that “[hjostilities ultimately evidenced by crying jurors are hardly indicative of reliable deliberations.” Id. at 979. However, the appellant’s reliance upon Thomas is misplaced. In Thomas, the supreme court found that under the “extreme prevailing circumstances” of that case, the cumulative nature of the trial judge’s actions and comments created a “substantial risk of coercion, or at the very least, constituted undue pressure” upon a lone holdout juror. Id. at 977. The facts in the instant case do not give rise to the “undue pressure” found to be reversible error in Thomas.

As the trial court properly noted, jurors are human beings and, therefore, subject to a range of emotions, especially in difficult cases. Here, the trial court had a first-hand opportunity to view the demean- or of the juror in question. The court made a finding on the record that the juror remained attentive, and although she initially “seemed a little teary eyed” after the victim’s testimony, she “cleared up” after the court read the relevant portions of the jury instructions. The record demonstrates that the juror did not continue to display emotions, she did not make any subsequent comments, and she voluntarily informed the court security officer that she was doing better. Given these circumstances we do not find that the trial court abused its discretion by not questioning a juror who appeared upset where the court instructed the jury on sympathy and monitored the juror throughout the trial. See Murray v. State, 356 So.2d 71, 72 (Fla. 1st DCA 1978) (finding that where juror cried during the polling of jury, it was not an abuse of discretion for trial court to prohibit defense counsel from interviewing juror after trial); Aragon v. State, 853 So.2d 584, 589 (Fla. 5th DCA 2003) (noting that “juror’s statement that she felt unqualified to make a difficult decision in a serious case and that she cried during the polling procedure” did not “form the basis of a reasonable belief that the verdict may be subject to legal challenge”); Williams v. State, 689 So.2d 393, 398 (Fla. 3d DCA 1997) (citing with approval a New Jersey Supreme Court opinion which held that trial court’s failure to examine juror who cried during the victim’s testimony did not constitute reversible error).

Under issue II, the appellant argues that while the testimony of several witnesses regarding hearsay statements made by the victim were admissible under section 90.803(23), Florida Statutes, the statements were nevertheless inadmissible under section 90.403, Florida Statutes. After a thorough review of the record, we find that the appellant’s argument under issue II was not properly preserved for appellate review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985).

Initially, we note that section 90.803(23), Florida Statutes, allows for the introduction of testimony concerning hearsay statements made by a child-victim under the age of 11 regarding the abuse, if the trial court determines the statements are sufficiently reliable. § 90.803(23), Fla. Stat. The supreme court has noted that the language of section 90.803(23) provides that “a child victim’s hearsay statement is not excludable per se as hearsay, or as a prior consistent statement, even though the child testifies fully at trial.” Pardo v. State, 596 So.2d 665, 667 (Fla.1992). However, the court noted that the evidence could still be deemed inadmissible if the trial court determined that the probative value was substantially outweighed by the danger of unfair prejudice under section 90.403, Florida Statutes. Id. at 667-68.

In Reynolds v. State, 660 So.2d 778, 780 (Fla. 4th DCA 1995), the appellant argued that “the trial court erred in overruling Appellant’s objections at trial, that the four hearsay witnesses’ testimony was ‘cumulative’ ” in violation of section 90.403, Florida Statutes. The court in Reynolds concluded that the issue had not been preserved for appeal. Id. (citing Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982)). In Reynolds the court noted that an objection “to testimony on the grounds that it is ‘cumulative,’ without more,” did not properly alert the trial court “that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.” Id.

Here, prior to and during trial the defense counsel’s objections centered on the grounds that the witness’ testimony regarding the victim’s statements would be prior consistent statements and would, therefore, improperly bolster the victim’s trial testimony. The trial court properly ruled that the specific hearsay exception contained in section 90.803(23), Florida Statutes, trumped the bolstering and prior consistent statement arguments advanced by the defense counsel. See Pardo, 596 So.2d at 667. At no time did the defense counsel alert the trial court that his objection was based upon the contention that the testimony’s probative value was substantially outweighed by the needless presentation of cumulative evidence.

During a pretrial hearing, the defense counsel stated that he predicted the state would “parade in four or five witnesses” to testify about the child’s hearsay statements; however, this was never ruled upon or raised again. The defense counsel’s statement regarding the state “parading in witnesses” is similar to the “cumulative” objection made in Reynolds, which the court found did not preserve a section 90.403 objection. Id. at 780. Accordingly, we find that the appellant’s argument that the trial court erred by allowing the hearsay testimony of multiple witnesses has not been properly preserved for appellate review. See id.; Anderson v. State, 598 So.2d 276, 276-77 (Fla. 1st DCA 1992) (holding that although under Pardo trial court must conduct section 90.403 analysis, appellant did not preserve that issue for appellate review).

Had the appellant’s argument been properly preserved, we would conclude that his argument does not merit reversal because the probative value of the witnesses’ testimony was not substantially outweighed by the presentation of similar evidence of the out-of-court statement by multiple witnesses, especially since the defense counsel was allowed to attack the credibility of several of the witnesses at trial. See Moore v. State, 943 So.2d 296, 297 (Fla. 1st DCA 2006) (holding that a trial judge did not abuse its discretion by allowing three witnesses to testify concerning the child’s hearsay statements).

Accordingly, we AFFIRM the appellant’s judgment and sentence.

VAN NORTWICK and LEWIS, JJ., concur.

      . As aptly characterized by the Fifth District,
      The jurors hear the evidence and the legal instructions and then struggle to sort through it all as they search for the truth. Often times they must make extraordinarily difficult decisions in cases that have very serious consequences for all of the participants. To allow inquiry into the jurors' emotions and feelings of inadequacy as they go through this often difficult process is to expect something closer to perfection than they and our judicial system can legitimately be expected to give.

        Aragon v. State, 853 So.2d 584, 589 (Fla. 5th DCA 2003).

      . Section 90.403, Florida Statutes, provides as follows:
      Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.


text:
    Timothy BRINKLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1434.
    District Court of Appeal of Florida, First District.
    April 9, 2010.
    Rehearing Denied May 12, 2010.
    Timothy Brinkley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


author: THOMAS, J. WOLF, J., WEBSTER, J.,

text:
    Samuel COX, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5731.
    District Court of Appeal of Florida, First District.
    April 13, 2010.
    Rehearing Denied May 12, 2010.
    James T. Miller, Jacksonville, for Appellant.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Under current law, Florida Rule of Criminal Procedure 3.172(g) has been interpreted to grant a criminal defendant the substantive right to unilaterally withdraw from a negotiated plea agreement. We write to note that rule 3.172(g) should be amended to prohibit defendants from withdrawing from negotiated plea agreements when the State has completed or partially completed its part of the agreement. In addition, we certify a question of great importance.

In 2006, Appellant was charged with two counts of conspiring to traffic in more than 400 grams of cocaine. Appellant pled guilty more than two years ago. As part of the plea agreement, Appellant stated, “I waive my right to withdraw this plea.” During the plea colloquy, the trial court questioned Appellant extensively regarding his plea to ensure it was “freely and voluntarily entered, with a full understanding of the nature and consequences of your plea.” Due to unintentional error, the trial court apparently overlooked the requirement to state that the court “accepted the plea.” The case was removed from the trial docket. Appellant and the State agreed to confidential terms regarding substantial agreement, and the trial court sealed the plea agreement.

As a further part of the agreement, Appellant and the State agreed to a 90% bond reduction, from $1,000,000 to $75,000. This allowed Appellant to remain free for an extended period of time in order to perform his obligations. In addition, as part of the agreement, the State agreed to a sentencing range of five to thirty years for the two first-degree felonies. This allowed Appellant to eliminate the risk of being sentenced to life imprisonment as an habitual felony offender.

At sentencing, the trial court heard evidence regarding Appellant’s purported attempts to substantially comply with the agreement. The court complied with the plea agreement and sentenced Appellant to concurrent terms of thirty years in prison. Thus, Appellant received significant benefits from his plea bargain. There is no claim that the State did not perform its part of the agreement.

Appellant waived his right to "withdraw his guilty plea by entering into a plea bargain with the State. State v. Simons, 22 So.3d 734 (Fla. 1st DCA 2009) (Hawkes, J., dissenting). In Simons, this court held that a defendant can force the State to comply with a settlement agreement in a pretrial intervention program, in which the State has complete discretion to consent to enter. Id. at 736. See § 948.08(2), Fla. Stat. (“Any ... offender ... is eligible for release to the pretrial intervention program on the approval of ... the state attorney....”). In Simons, this court noted, “It is significant that the state attempted to withdraw from the settlement agreement after the defendant had partly performed the agreement.... [I]t is a settled principle of criminal procedure that, if the government fads to honor a plea agreement, the court may either enforce the agreement or allow the defendant to withdraw the plea.” Simons, 22 So.3d at 736. If the Florida Rules of Criminal Procedure can compel the State to comply with a negotiated dismissal of criminal charges in a pretrial intervention program or other type of plea agreement, those rules should similarly compel a defendant to fulfill his obligation in a plea negotiation.

It is well established that a plea agreement is a contract. Garcia v. State, 722 So.2d 905 (Fla. 3d DCA 1998), rev. dismissed, 727 So.2d 905 (1999). Here, in violation of that principle, under controlling case law, we must allow Appellant the opportunity to withdraw from his plea contract more than two years later merely because he would rather choose another option. Harrell v. State, 894 So.2d 935, 939 (Fla.2005); Howard v. State, 516 So.2d 31, 32 (Fla. 1st DCA 1987). The State will now be required to prosecute Appellant a second time for crimes that allegedly occurred almost four years ago. While it may sound reasonable to state that we have “returned [the state] to the same position it was in before the plea agreement,” Mackey v. State, 743 So.2d 1117, 1119 (Fla. 2d DCA 1999), that does not reflect the reality in the courtroom. During the course of time, witnesses’ memories fade and evidence becomes stale. It is difficult to believe the State will not be prejudiced in its case against Appellant.

We think that the above prior precedent interpreting rule 8.172(g) should be reconsidered. If necessary, this rule should be amended to protect the integrity of the plea negotiation process and prevent inequitable results, as has occurred here. Appellant will now obtain relief, which violates the principles of equitable estoppel. Cf. Major League Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla.2001). In addition, the important principle of finality will be violated in this case. In our view, the holding in this case is not in accord with the proper administration of justice or the rule of law.

Prior precedent requires us to reverse and remand with directions to allow Appellant to withdraw his plea. In doing so, however, we certify the following question:

DOES THE HOLDING IN HARRELL V. STATE, 894 So.2d 935 (Fla.2005), REQUIRE THAT A TRIAL COURT MUST ALLOW A DEFENDANT TO WITHDRAW HIS PLEA, EVEN WHERE THE STATE HAS PERFORMED ITS OBLIGATIONS UNDER THE PLEA AGREEMENT, MERELY BECAUSE THE TRIAL COURT INADVERTENTLY NEGLECTED TO STATE THAT IT HAD “ACCEPTED THE PLEA”?

REVERSED and REMANDED; QUESTION CERTIFIED.

WOLF, J., concurs with opinion; WEBSTER, J., concurs in result only with opinion.

WOLF, J.,

concurring.

We should not worship at the temple of “bright line rules.” The justifications for stringent, ritualistic compliance with rules and enforcement by mandated reversal in all cases where rules are not followed are overall fairness, consistency and ease of administration by appellate courts. These general considerations should not override the court’s responsibility to reach the appropriate result in individual cases. Inflexible and blind adherence to bright line rules has too many times resulted in illogical or unjust results.

While I concur with Judge Webster that compliance with Florida Rule of Criminal Procedure 3.172(g) results in certainty and order in the legal process, failure to utter the “magic words” should not result in an automatic leave to withdraw from a plea agreement. The trial court’s failure to follow the formalistic requirements of the rule should only be one factor (albeit an important one) in determining whether to allow a defendant to withdraw a freely and voluntarily entered plea.

In the instant case, the reversal mandated by following the “bright line rule” is illogical and inequitable. I, therefore, concur in Judge Thomas’s invitation to the supreme court to revisit the issue of mandated reversal.

WEBSTER, J.,

concurring in result only.

I concur in the result reached by the majority — to reverse and remand with directions to allow appellant to withdraw his plea — as such a result is clearly mandated by Florida Rule of Criminal Procedure 3.172(g) and Harrell v. State, 894 So.2d 935, 939 (Fla.2005). However, I disagree with virtually everything else in the majority opinion.

What is now subdivision (g) of rule 3.172 was originally adopted as subdivision (f) in 1977. The Fla. Bar re Fla. Rules of Criminal Procedure, 343 So.2d 1247, 1255 (Fla.1977). It has remained substantively unchanged since its initial adoption. Its intended purpose is clear — to permit either the state or a defendant to withdraw a previously made offer. Obviously, there must be some time beyond which it is no longer possible for either party to withdraw an offer. A bright-line rule is an absolute necessity so that the parties will know at what point they are bound by their agreement. Rule 3.172(g) establishes that bright-line at the time when, “after making all the inquiries, advisements, and determinations required by th[e] rule” to ensure that the defendant’s plea is voluntary and intelligently made, the trial court “formally” accepts the plea. It is a rule that has, in general, worked well for more than 30 years. Unfortunately, problems occasionally arise when a trial judge fails to comply with his or her obligation to formally accept the plea. I suggest such isolated failings by trial judges do not provide a valid justification for tinkering with the rule.

The concerns expressed by the majority are apparently limited to those relatively few cases which involve substantial assistance agreements of some sort. In such cases, it is not unusual for a meaningful period of time to pass between entry of the plea and sentencing to afford the defendant an opportunity to attempt to carry out his part of the agreement. However, even in such cases the problem identified by the majority — allowing the defendant to withdraw from the agreement after the state has partially or fully performed its part of the agreement — may be easily avoided. The trial judge merely needs to formally accept the plea as required by rule 3.172(g).

I also disagree with the majority’s certification to the supreme court. What constitutes “a question ... of great public importance” for purposes of Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) is not defined in those rules. The Fourth District Court of Appeal has said that “one general guide is that a question should be certified where our decision will affect a large segment of the public and the extant decisional law may not coalesce around a single answer to the question posed.” Star Cas. v. U.S.A. Diagnostics, Inc., 855 So.2d 251, 252 (Fla. 4th DCA 2003). Using that test or any other, it does not seem to me that any question this case might pose could reasonably be considered one “of great public importance.” Moreover, the question actually posed by the majority is susceptible to only one answer. Clearly, as written, and as interpreted in Harrell, rule 3.172(g) requires that the question be answered “yes.”

Finally, to the extent that the majority is proposing the desirability of an amendment to rule 3.172(g), the appropriate procedure is set out in Florida Rule of Judicial Administration 2.140. The amendment process there set out exists for a purpose, and we circumvent it at our peril, as we have seen many times.

For all of the reasons expressed, while I concur in the result reached by the majority, I am unable to agree with the remainder of their opinion.


author: EVANDER, J.

text:
    W.Z., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1656.
    District Court of Appeal of Florida, Fifth District.
    April 16, 2010.
    Rehearing Denied May 25, 2010.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

W.Z. was adjudicated delinquent and placed on six months probation after having entered a nolo contendere plea to simple battery. As a part of the disposition order, the trial court ordered W.Z. and his parents to pay an attorney’s fee of $50.00 for services rendered to W.Z. by the public defender’s office. W.Z. and his parents were further ordered to pay the costs of two mental competency evaluations which, upon motion by the public defender’s office, had been ordered by the trial court. Payment of the attorney’s fees and mental competency evaluation costs was made a condition of probation. On appeal, W.Z. challenges the assessment of these particular fees and costs on the grounds that they were not authorized by statute. We affirm as to the imposition of attorney’s fees, but reverse the trial court’s assessment of costs for the competency evaluations.

Contrary to W.Z.’s assertion, the Legislature has authorized the assessment of attorney’s fees against a child who has been found guilty of committing a criminal act and who received the assistance of the public defender’s office. Section 985.038(1), Florida Statutes (2009), provides that a child is entitled to representation by legal counsel at all stages of delinquency court proceedings. If the child and the parents (or other legal guardian) are unable to employ private counsel, the court is required to appoint counsel to represent the child. Significantly, section 985.033(1) expressly makes the costs of representation provisions set forth iii section 938.29 applicable to juvenile delinquency proceedings:

Determination of indigence and costs of representation shall be as provided by ss. 27.52 and 938.29.

Pursuant to section 938.29(l)(a), Florida Statutes (2009), a defendant who has been determined to be guilty of a criminal act and who has received the assistance of the public defender’s office shall be liable for payment of attorney’s fees. The court is required to impose the attorney’s fees “notwithstanding the defendant’s present ability to pay.” § 938.29(l)(b), Fla. Stat. (2009). Furthermore, the court is expressly authorized to make payment of attorney’s fees a condition of probation. § 938.29(l)(c). The obligation to pay the child’s attorney’s fees may also be placed on the child’s parents or legal guardian. § 985.033. We conclude that there was no error in the disposition order "with regard to the assessment of attorney’s fees.

By contrast, we believe that the Legislature has not authorized a trial court to assess the costs for mental competency evaluations against an indigent child. Mental competency evaluations in juvenile delinquency proceedings are governed by section 985.19, which provides in part:

(1) If, at any time prior to or during a delinquency case, the court has reason to believe that the child named in the petition may be incompetent to proceed with the hearing, the court on its own motion may, or on the motion of the child’s attorney or state attorney must, stay all proceedings and order an evaluation of the child’s mental condition.
* * *
(b) All determinations of competency shall be made at a hearing, with findings of fact based on an evaluation of the child’s mental condition made by not less than two nor more than three experts appointed by the court ... Experts appointed by the court to determine the mental condition of a child shall be allowed reasonable fees for services rendered ... The fees shall be taxed as costs in the case.

(emphasis added).

The State relies on the final sentence in section 985.19(l)(b) to support its contention that the costs for the competency evaluation were properly assessed against W.Z. and his parents. However, this sentence does not specify against whom (or what entity) these fees are to be taxed. As correctly observed by W.Z., the term “taxed as costs in the case,” does not, by itself, lay responsibility for payment on the child and/or his parents. For example, section 27.0061, Florida Statutes (2000), provides that the cost of the transcript for a criminal proceeding from which an appeal is taken is to be “taxed as costs in the case.” Yet, it is well-established that the costs for such transcripts are to be borne by the government and not by an indigent appellant. See, e.g., Ocer v. State, 840 So.2d 1162 (Fla. 5th DCA 2003); Colonel v. State, 723 So.2d 853 (Fla. Sd DCA 1998). We conclude that section 985.19(1)(b) fails to expressly authorize the assessment of competency evaluation costs against an indigent juvenile.

The State next argues that section 938.29 supports the assessment of these costs against W.Z. However, unless the Legislature expressly makes a cost or surcharge imposed by Chapter 938 applicable to juvenile delinquency cases, such cost or surcharge may not be imposed in a delinquency proceeding. V.K.E. v. State, 934 So.2d 1276 (Fla.2006); see also T.L.S. v. State, 949 So.2d 290 (Fla. 5th DCA 2007). Here, the Legislature has not done so.

Finally, the State argues that pursuant to Office of State Attorney for Eleventh Judicial Circuit v. Polites, 904 So.2d 527 (Fla. 3d DCA 2005), W.Z. is obligated to pay the costs of the evaluations because he is the party who requested them. However, Polites is not supportive of the State’s position. In Polites, petitions for certiora-ri were filed by the state attorney’s office and/or the public defender’s office in four separate cases challenging court orders requiring the state attorney and the public defender to pay for certain court-ordered mental competency evaluations. The Po-lites court held that the state court system, rather than the Office of the State Attorney or the Office of the Public Defender, was required to pay the costs of the competency evaluations where the evaluations were ordered on the court’s own motion. None of these cases arose from a juvenile delinquency proceeding. More importantly, the issue was whether the court, the state attorney’s office, or the public defender’s office was responsible for the payment of the disputed costs. There was no contention that the indigent defendants themselves were obligated to pay.

AFFIRMED, in part; REVERSED, in part; Costs for Mental Competency Evaluations STRUCK.

MONACO, C.J. and GRIFFIN, J., concur.

      . W.Z. also challenges the trial court’s requirement that payment of fees and costs to the clerk of court be by money order or cashier’s check. Having failed to raise this argument below, this issue has not been preserved for review.

        . § 27.0061 Transcripts in criminal cases.—

        Upon the demand of the state attorney, or the presiding judge in any criminal case, or the defendant within the time allowed for taking an appeal and for the purpose of taking an appeal in a criminal case, the court reporter shall furnish with reasonable diligence a transcript of the testimony and proceedings; and the costs for same shall be taxed as costs in the case.

      (emphasis added).

      . Mental competency evaluations in criminal proceedings are governed by section 916.115.


author: WETHERELL, J.

text:
    UTILITY LINES CONSTRUCTION SVC/Asplundh Tree Expert Co., and Liberty Mutual Insurance Corp., Appellants, v. E. Stacy CROSBY, Appellee.
    No. 1D10-0066.
    District Court of Appeal of Florida, First District.
    April 26, 2010.

      Tara L. Sa’id of Law Office of Amy L. Warpinski, Jacksonville, for Appellants.
    William A. Kempner, Tallahassee, for Appellee.
   WETHERELL, J.

In this workers’ compensation appeal, the employer/carrier (E/C) seeks review of a “Final Order Determining Entitlement to Attorney’s Fees.” We dismiss the appeal for lack of jurisdiction because the order is neither a final order nor an ap-pealable nonfinal order.

The order on appeal determined that the claimant’s attorney was entitled to a reasonable fee paid by the E/C because the attorney secured permanent total disability benefits for the claimant. The order expressly reserved jurisdiction to determine the amount of the fee.

The order is not a final order because it does not end the judicial labor on the attorney’s fee issue. The order is not an appealable nonfinal order because it does not determine jurisdiction, venue, or com-pensability. See Fla. R.App. P. 9.180(b)(1). Thus, the order is “not ap-pealable.” Wometco Enterprises v. Cordoves, 650 So.2d 1117, 1118 (Fla. 1st DCA 1995).

In response to our order to show cause why this case should not be dismissed, the E/C argued that dismissal of the appeal will preclude it from obtaining review of the Judge of Compensation Claims’ determination that the claimant’s attorney is entitled to an award of fees. This argument is without merit because the entitlement determination will be subject to review upon a timely appeal of the final order establishing the amount of the fee award.

Accordingly, this appeal is DISMISSED for lack of jurisdiction.

HAWKES, C.J., and ROWE, J., concur.


text:
    Andre Isaiah DUNBAR, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4214.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Rehearing Denied May 21, 2010.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Andre I. Dunbar, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

In this Anders appeal, appellate counsel advised this Court that in good faith, he could not argue that reversible error occurred in the trial court. Pursuant to the constitutional mandate of Anders, and the instruction of the Florida Supreme Court in State v. Causey, 503 So.2d 321 (Fla.1987), we undertook an independent review of the record. Although we affirm the convictions and sentences, our review revealed a sentencing error that was not preserved by objection at sentencing or by motion to correct sentence. As a result, the issue is not preserved for appellate review and we are constrained to affirm.

Andre Dunbar was convicted of two counts of attempted second-degree murder with a firearm, and two counts of robbery with a firearm. The jury also made a special finding that Dunbar discharged the firearm. On each count, Dunbar was sentenced to forty years imprisonment. Attempted second-degree murder is a second-degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2009). If, as in the instant case, the offense is committed with a firearm, the crime is reclassified to a first-degree felony pursuant to section 775.087(1)(b), subject to an enhanced sentence not to exceed thirty years. See Miller v. State, 460 So.2d 373, 374 (Fla.1984); see also § 775.082(3)(b), Fla. Stat. (2009).

The concurrent forty-year sentences that Dunbar received for his convictions of attempted second-degree murder are clearly in excess of the statutory maximum. However, sentencing errors that occur after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on the face of the record, cannot be reviewed by an appellate court if, as here, the issue was not raised at sentencing or in a timely post-sentencing proceeding pursuant to rule 3.800. See generally Maddox v. State, 760 So.2d 89 (Fla.2000); Washington v. State, 814 So.2d 1187 (Fla. 5th DCA 2002). Accordingly, we affirm Dunbar’s convictions and sentences without prejudice to his right to seek appropriate and timely postconviction relief. Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005); Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002).

AFFIRMED.

ORFINGER, TORPY and EVANDER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . The trial court also imposed the mandatory minimum term of twenty years pursuant to section 775.087(2)(a)2., Florida Statutes (2009), for discharge of a firearm.