author: PER CURIAM.

text:
    EX PARTE Cameron MURRAY
    (In re: Trukessa Scott v. Cameron Murray)
    2170712
    Court of Civil Appeals of Alabama.
    July 13, 2018
    Christine Frieder, Huntsville, for petitioner.
    Submitted on mandamus petition only.
   PER CURIAM.

On December 21, 2017, Trukessa Scott ("the wife") filed an action in the Madison Circuit Court seeking a protection-from-abuse order pursuant to § 30-5-1 et seq., Ala. Code 1975. That action was assigned case no. DR-17-3415 and is hereinafter referred to as "the protection-from-abuse action." It appears from the materials submitted to this court that the wife alleged that Cameron Murray ("the husband") had committed an act or acts of domestic violence against her. A pendente lite protection-from-abuse order was entered on December 21, 2017, but that order is not included in the materials before this court.

On February 12, 2018, the circuit court entered an order scheduling a final hearing on the protection-from-abuse petition. However, before that hearing could take place, the circuit court, on February 15, 2018, entered an order that consolidated the protection-from-abuse action with a divorce action pending between the parties and transferred the protection-from-abuse action to the docket of the judge in whose court the divorce action was pending; the divorce action was assigned case no. DR-18-900019. Among other things, the circuit court ordered that the protection-from-abuse action would be set for a final hearing by the trial judge before whom the divorce action was pending and who would now consider the protection-from-abuse action. For the remainder of this opinion, we refer to the court in which the consolidated actions were pending as "the trial court," and we refer to the court in which the protection-from-abuse petition was originally filed as "the first trial court."

On February 28, 2018, the trial court scheduled the protection-from-abuse action for a hearing on March 15, 2018. After the hearing, the trial court entered an order on March 15, 2018, in the protection-from-abuse action in which it made final the December 21, 2017, pendente lite order. In its March 15, 2018, order, the trial court noted that the husband had not appeared at the final hearing, and it made a finding, based on the evidence presented at the hearing, that the husband had committed an act of domestic violence against the wife.

We note that, because the protection-from-abuse action and the divorce action were consolidated in the trial court, the March 15, 2018, order entered in the protection-from-abuse action was not a final judgment. Hanner v. Metro Bank & Prot. Life Ins. Co., 952 So.2d 1056, 1060 (Ala. 2006). See also Austin v. Austin, 102 So.3d 403, 406 (Ala. Civ. App. 2012). The husband filed a purported postjudgment motion on April 3, 2018, in which he argued that he had received no notice of the final hearing. However, a valid postjudgment motion may be taken only in reference to a final judgment, Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala. Civ. App. 1999), and, as previously noted, the March 15, 2018, order was not a final judgment. On April 4, 2018, the trial court entered an order denying the husband's purported postjudgment motion. The husband filed a petition for a writ of mandamus to this court on April 30, 2018.

The husband has briefly asserted in his brief filed in support of his petition for a writ of mandamus that the petition was timely filed. The issue of timeliness is jurisdictional, and this court may take notice of the issue ex mero motu. Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ; J.C.T. v. Mobile Cty. Dep't of Human Res., 142 So.3d 705, 707 (Ala. Civ. App. 2013).

A petition for a writ of mandamus must be filed within a reasonable time, which has been held to be the same time for taking a timely appeal. Meadwestvaco Corp. v. Mitchell, 195 So.3d 290, 294 (Ala. Civ. App. 2015) ; Ex parte C & D Logging, 3 So.3d 930, 933 (Ala. Civ. App. 2008). The husband's purported postjudgment motion did not operate to extend the time for timely filing the petition for a writ of mandamus. Meadwestvaco Corp. v. Mitchell, supra ; Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003) (a motion to reconsider an interlocutory order does not toll the time for filing a petition for a writ of mandamus). The presumptively reasonable time for filing a petition for a writ of mandamus from the March 15, 2018, order in the protection-from-abuse action was 42 days, or until April 26, 2018. Ex parte Hoyt, 984 So.2d 424, 425 (Ala. Civ. App. 2007) (" 'The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken.' Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007)."); see also Placey v. Placey, 51 So.3d 374, 376 n. 3 (Ala. Civ. App. 2010) (because the protection-from-abuse action was filed in the circuit court, the 42-day period for taking a timely appeal applied). The husband filed his petition for a writ of mandamus in this court on April 30, 2018, and, therefore, the petition for a writ of mandamus was not timely filed.

A petitioner may obtain review by way of an untimely petition for a writ of mandamus if the petition includes a statement of good cause explaining the reason for the untimely filing. Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 100 (Ala. Civ. App. 2004). This court has explained:

"When a petition for a writ of mandamus has not been filed within a presumptively reasonable time, the petition 'shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.' Rule 21(a)(3), Ala. R. App. P. 'The filing of such a statement in support of an untimely petition for a writ of mandamus is mandatory.' Ex parte Fiber Transp. L.L.C., 902 So.2d 98, 100 (Ala. Civ. App. 2004) (citing Ex parte Pelham Tank Lines, Inc., 898 So.2d 733, 736 (Ala. 2004), and Ex parte Troutman Sanders, [LLP,] 866 So.2d [547] at 550 [ (Ala. 2003) ] )."

Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 835 (Ala. Civ. App. 2007).

The husband did not include in his petition for a writ of mandamus a statement of good cause for this court to consider the untimely petition. However, our supreme court has held that when an untimely petition for a writ of mandamus raises an issue pertaining to the jurisdiction of the lower court, it may consider the jurisdictional argument. Ex parte K.R., 210 So.3d 1106 (Ala. 2016). That case involved, among other things, a challenge to a probate court's jurisdiction in an action involving an adoption contest; our supreme court explained:

"Regardless, we may consider K.R.'s argument because it concerns the probate court's jurisdiction. See Bush v. State, 171 So.3d 679 (Ala. Crim. App. 2014) (holding that the improper appointment of a judge to a case deprived the court of jurisdiction to rule on any motions pending before that judge; the orders entered by that judge were entered without jurisdiction of the court and were, thus, void). The timeliness of K.R.'s challenge to Druhan's appointment to serve as a temporary judge of probate is insignificant because 'we take notice of the lack of jurisdiction ex mero motu. See Ruzic v. State ex rel. Thornton, 866 So.2d 564, 568-69 (Ala. Civ. App. 2003) (discussing the general rule that this court notices lack of jurisdiction ex mero motu and citing to several cases noting that rule).' Lawrence v. Alabama State Pers. Bd., 910 So.2d 126, 128 (Ala. Civ. App. 2004). Therefore, even though K.R.'s petition is untimely filed, we will consider her argument concerning this issue because it concerns the jurisdiction of the probate court, of which we may take notice ex mero motu."

Ex parte K.R., 210 So.3d at 1112. See also Ex parte J.B., 223 So.3d 251, 254 (Ala. Civ. App. 2016) ("[O]ur supreme court recently determined that, in situations in which a petition for the writ of mandamus challenges the subject-matter jurisdiction of the court in which the challenged interlocutory order was rendered, the petition need not timely invoke the jurisdiction of the appellate court. Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016).").

The husband in this case argues that he did not receive notice of the March 15, 2018, hearing in the protection-from-abuse action and, therefore, that the March 15, 2018, order was void for want of due process. This court has recently held that Ex parte J.B. applies in cases in which a party argues that an order is void for want of due process. Ex parte M.F.B., 228 So.3d 460, 462 (Ala. Civ. App. 2017) ("Application of Ex parte J.B. to the circumstances of this case, in which the mother's contentions regarding lack of notice and a hearing in connection with a court's ex parte limitation of her visitation rights implicate due-process guarantees ... and do in fact go to the power of the juvenile court to enter the October 21, 2016, orders, warrants consideration of the merits, notwithstanding the mother's noncompliance with Rule 21(a)(3), Ala. R. App. P."). Accordingly, we reach the due-process issue raised by the husband.

In the February 12, 2018, order entered by the first trial court, before the actions were consolidated and the protection-from-abuse action was transferred to the court in which the divorce action was pending, the first trial court noted:

"This matter was called for final hearing on January 2, 2018. The [wife] was represented by Attorney Jonathan Watson. The [husband] was represented by Attorney Randy Ferguson. Counsel for both parties agreed to talk and to update the Court accordingly. No update has been made since the January 2, 2018, hearing date."

The first trial court then scheduled the matter for a hearing.

The case-action summary contains an entry dated February 13, 2018, that states: "Listed as attorney for D01 [ (the husband) ]: Ferguson Randy Will."

On February 15, 2018, the first trial court entered another order that provided, in pertinent part:

"This cause came on for final hearing on January 2, 2018, upon the Petition for Protection from Abuse filed herein by the [wife]. The [wife] appeared personally, representing herself. The [wife] stated in open Court that a divorce was forthcoming and that Attorney Jonathan Watson would be representing her. The [husband] appeared personally, representing himself. The [husband] stated in open Court that Attorney Randy Ferguson would be representing him, but he was out of town at the time of said hearing."

In that order, the first trial court ordered that the two actions be consolidated and that a hearing was to be scheduled by the trial court.

In Cornelius v. Browning, 85 So.3d 954 (Ala. 2011), the trial court denied Cornelius's motion filed pursuant to Rule 60(b), Ala. R. Civ. P., seeking relief from a default judgment on the basis that he had not received a copy of the motion for a default judgment. In that case, the plaintiffs had served Cornelius at his home address. Cornelius, acting pro se, answered, and he provided as his address an incorrect post-office-box address. In addition, Cornelius's

"answer was mailed to the plaintiffs' counsel in an envelope on which the following return address was written: 'G. Edward Coey, P.O. Box 834, Hanceville, AL.' Cornelius had consulted Coey, an attorney in Hanceville, regarding the case; however, Cornelius did not hire Coey to represent him, and Coey never filed a notice of appearance as counsel for Cornelius."

Cornelius v. Browning, 85 So.3d at 956. The plaintiffs in that case alleged in their motion for a default judgment that they had attempted to serve Cornelius with notice of the motion at the post-office-box address he had provided, but that their notice was returned as undeliverable, and that they had served notice on Coey. The evidence also indicated that Coey received the notice, but was not and had not been Cornelius's attorney, and that Coey unsuccessfully attempted to send the notice to Cornelius at the post-office-box address.

Our supreme court reversed the trial court's denial of Cornelius's Rule 60(b) motion because, it concluded, the evidence clearly demonstrated that, at the time the plaintiffs moved for the default judgment, the plaintiffs were aware that the motion had not been properly served on Cornelius, and there was no evidence that the plaintiffs had attempted to serve Cornelius at the home address at which he had received service of the complaint or to contact him by telephone. Cornelius v. Browning, 85 So.3d at 961. In rejecting the argument that notice had been properly served on Coey, our supreme court noted that there was no evidence that Coey had filed a notice of appearance on behalf of Cornelius. Cornelius v. Browning, 85 So.3d at 961.

In Looney v. State, 60 So.3d 293 (Ala. Civ. App. 2010), Looney was arrested on drug-related charges, and the State sought to seize his currency and guns. The State "served" a complaint on Looney at his home while he was incarcerated on the drug-related charges and on attorney Lance Bell, who was listed on the case-action summary as Looney's attorney. The trial court ruled in favor of the State, but a year later Looney sought relief pursuant to Rule 60(b), Ala. R. Civ. P., arguing that he had not received service of the State's complaint. The trial court in that case denied Looney's Rule 60(b) motion, but this court reversed. This court noted that, at the time the State attempted service at Looney's home, it knew that Looney was incarcerated on the same charges upon which it based its forfeiture action. Also, there was nothing indicating that Bell represented Looney or had filed an appearance on his behalf. Looney v. State, supra.

The husband in this case relies on Cornelius v. Browning, supra, and Looney v. State, supra, to argue that, because in those cases the courts had held, in part, that the appellants had not received proper notice because the attorneys had not filed a notice of appearance, he similarly failed to receive notice because Randy Ferguson had not filed a notice of appearance on his behalf. The husband states that "the record," or, rather, the materials he submitted in support of his petition for a writ of mandamus, demonstrates that he was not represented by an attorney at the time the notice of the February 28, 2018, order scheduling the final hearing was issued. In making that argument, the husband appears to rely solely on the fact that the case-action summary does not indicate that an attorney had filed a notice of appearance on his behalf. However, the husband fails to address in his petition for a writ of mandamus the February 12, 2018, order stating that Ferguson represented the husband at the January 2, 2018, hearing or the February 15, 2018, order that stated that the husband had told the first trial court that Ferguson would represent him. The husband also offers no explanation and makes no argument concerning the first trial court's findings regarding Ferguson (namely that, Ferguson represented the husband and that the husband said that Ferguson would represent him).

In this case, the materials submitted to this court indicate either that Ferguson represented the husband at the January 2, 2018, hearing or that representations of the husband to the first trial court during that hearing were that Ferguson was representing the husband in the protection-from-abuse action. Thus, the actions of the husband led the trial court to believe that the husband was represented by counsel. The husband alleges in his brief submitted to this court that he ultimately did not hire Ferguson; the husband has not submitted any affidavit to that effect. Further, the materials before this court do not indicate that the husband informed the trial court at any point that Ferguson did not represent him, and he has not disputed in his filings before this court the findings in the first trial court's orders pertaining to Ferguson.

" '[A] judgment is void only if the court that rendered it lacked jurisdiction of the ... parties, or if it acted in a manner inconsistent with due process of law.' Bryant, Inc. v. Walters, 493 So.2d 933, 938 (Miss. 1986). However '[a] "due process" violation so gross as to make the judgment void is extremely rare.' Walters, 493 So.2d at 938 n. 4."

Stribling Equip., Inc. v. Crager, 891 So.2d 299, 303-04 (Ala. 2004).

Mandamus is an extraordinary remedy, and the burden of demonstrating the clear legal right to relief was on the husband, as the petitioner. Ex parte Simpson, 36 So.3d 15, 25 (Ala. 2009). We cannot say that, given the materials he has presented to this court, the husband has met his burden of demonstrating that the trial court violated his rights to due process.

PETITION DENIED.

All the judges concur.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    EX PARTE Tanya GUIN
    (In re: Walker County Board of Education v. Tanya Guin)
    2170850
    Court of Civil Appeals of Alabama.
    July 13, 2018
    * Note from the reporter of decisions: Judge Carter, circuit judge, 25th Judicial Circuit, was appointed to preside over this case upon the recusal of the circuit judges in Walker County.
    John D. Saxon, Birmingham; and J. Kenneth Guin, Jr., Jasper, for petitioner.
    Charles C. Tatum, Jr., and Seth L. Diamond, Jasper, for respondent Walker County Board of Education.
    Mark S. Boardman and Clay R. Carr of Boardman, Carr, Petelos, Watkins & Ogle, P.C., Chelsea, for respondent members of the Walker County Board of Education.
   PITTMAN, Judge.

This mandamus petition arises from proceedings initiated by Tanya Guin seeking review of a decision of the Walker County Board of Education ("the Board") canceling Guin's employment as a contract principal under Alabama's Teacher Accountability Act ("the TAA"), Ala. Code 1975, § 16-24B-1 et seq. Because we conclude that the June 5, 2018, order of the Walker Circuit Court from which Guin has sought relief is a void order, we dismiss the petition without reaching the merits of Guin's arguments concerning the correctness of that order.

As procedural background, we first summarize some of the pertinent provisions of the TAA that bear upon the case. The TAA, which was enacted in 2000, defines "contract principal" as including "those persons hired on or after July 1, 2000, and certified for the position of principal as prescribed by the State Board of Education and who are employed by an employing board as the chief administrator of a school." Ala. Code 1975, § 16-24B-2(2). Guin was hired by the Board pursuant to the TAA to serve as a contract principal at one of its schools; however, on June 1, 2017, the superintendent of the Walker County school system notified Guin by letter that he was recommending cancellation of her employment as a contract principal for cause pursuant to Ala. Code 1975, § 16-24B-3(e)(1), which permits cancellation of a contract principal's employment contract for any of 10 enumerated reasons, including immorality, insubordination, neglect of duty, conviction of a felony or a crime involving moral turpitude, failure to fulfill the duties and responsibilities imposed upon principals by the Alabama Code, willful failure to comply with board of education policy, a justifiable decrease in the number of positions due to decreased enrollment or decreased funding, failure to maintain a necessary certificate in a current status, incompetency, or failure to perform duties in a satisfactory manner, as well as for "[o]ther good and just cause." Guin requested a hearing on the superintendent's recommendation, which the Board held in early August 2017; at the conclusion of that hearing, the Board, by a majority vote, agreed with the superintendent's recommendation to cancel Guin's employment as a contract principal for cause and rendered a written order on August 10, 2017, to that effect.

The TAA provides that, in the event of a cancellation of a contract principal's contract for cause, the principal may file a written notice with the school board's chief executive officer requesting "a nonjury, expedited evidentiary hearing before the circuit court in the county in which the employing board sits"; in response to such a notice, the school board's chief executive officer, in turn, is to promptly notify the circuit court that "the employing board requests the nonjury, expedited evidentiary hearing," at which hearing "the employing board shall bear the burden to prove, by a preponderance of the evidence, that the cancellation is solely for cause." Ala. Code 1975, § 16-24B-3(e)(2) b. The TAA further provides:

"All contract principals shall be entitled to an expedited evidentiary hearing process, which shall occur within 45 days of the chief executive officer's or the contract principal's request, as the case may be, for an expedited hearing.... If the circuit court determines that it is not able to complete the expedited evidentiary hearing within the 45-day period, the court shall refer the parties to a mediator to conduct the expedited evidentiary hearing within 45 days of the chief executive officer's or the contract principal's request for the expedited hearing. The written decision of the mediator shall be binding on the parties."

Ala. Code 1975, § 16-24B-3(e)(3) (emphasis added).

The term "mediator" is defined in the TAA as "[a] person who is experienced in the field of alternative dispute resolution, and/or a person who has completed a course of training in alternative dispute resolution, and/or has been recognized as an arbitrator by an entity regularly engaged in providing arbitration services." Ala. Code 1975, § 16-24B-2(6). In contrast to the TAA, which affords a mediator, upon referral by the circuit court, the power to render a binding written decision, a "mediator" in a typical civil action is tasked with presiding over "a process [as] a neutral third party assist[ing] the parties to a civil action in reaching their own settlement," but who "does not have the authority to force the parties to accept a binding decision." Ala. Code 1975, § 6-6-20(a) ; accord Rules 1(a) and 9, Ala. Civ. Ct. Med. R. In other words, the TAA envisions a "mediator" in the specific context of an expedited nonjury review as acting in lieu of the circuit judge in all respects, as will be discussed below in more detail.

On August 24, 2017, Guin timely made a request under § 16-24B-3(e)(2) b. for a nonjury, expedited evidentiary hearing of the termination of her employment as a contract principal, and the Board initiated a civil action in the Walker Circuit Court (case no. CV-17-900326), requesting a nonjury expedited evidentiary hearing to address the propriety of its decision as to Guin. However, the cause was not tried within the 45-day period set forth in the TAA because, Guin alleges in her petition, all the sitting circuit judges recused themselves from hearing the action, resulting in an appointment by the Chief Justice of the Alabama Supreme Court of a visiting circuit judge to hear the case.

In the circuit-court proceeding, one of Guin's attorneys issued 24 notices of intent to serve nonparty subpoenas duces tecum pursuant to Rule 45, Ala. R. Civ. P., upon a number of Walker County school associations, such as the "Carbon Hill Band Boosters," the "Curry Middle School PTO," the "Dora Wrestling Club," and the "Oakman Quarterback Club," seeking financial documents of those groups from 2011 to the present. The Board moved to quash the subpoenas and to issue an order prohibiting further subpoenas for records that the Board had not considered in its own hearing without a showing of good cause. On February 1, 2018, the circuit court granted the Board's motion to quash and ordered that no further subpoenas for records be issued without obtaining leave of court. Guin filed on February 6, 2018, a "motion to reconsider" that order; however, that motion was denied on March 21, 2018.

Counsel for Guin subsequently filed subpoenas duces tecum and notices seeking to take the depositions upon video and/or oral examination of numerous witnesses, including the school superintendent, a member of the Board, the Board's executive secretary, and six other Board employees. The member of the Board and the Board's executive secretary named in two of the deposition notices moved to quash the deposition notices directed to them, and the superintendent moved to quash the deposition notices directed to him and the other Board employees. On March 8, 2018, the circuit court granted the superintendent's motion to quash but denied the motion to quash that had been filed by the Board member and the Board's executive secretary. However, on March 15, 2018, the circuit court granted a motion to reconsider the denial of the motion to quash that had been filed by the Board member and the Board's executive secretary and ordered that their notices of deposition would also be quashed. The circuit court denied reconsideration of the orders granting the motion to quash on March 21, 2018.

On April 6, 2018, Guin filed a petition for the writ of mandamus in this court, seeking review of the circuit court's orders of February 1, 2018, March 8, 2018, and March 15, 2018, denying issuance of the requested subpoenas duces tecum and the taking of the requested depositions. That mandamus petition was assigned case no. 2170644. This court called for responses to the petition, and two responses were filed: one by the Board as a body and one by the Board member and the Board's executive secretary whose motion to quash was ultimately granted on March 15, 2018. Among the arguments asserted by the Board in its response was that the mandamus petition was untimely under Rule 21(a)(3), Ala. R. App. P. That rule provides that "[t]he presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal." Although Rule 4(a), Ala. R. App. P., generally provides for timely appellate review within 42 days from the entry of an appealable judgment or order, in this case the pertinent "time for taking an appeal" under the TAA from a final judgment in a proceeding involving cancellation of a principal's contract of employment is set forth in § 16-24B-5(a), Ala. Code 1975:

"All appeals of a final decision from the expedited evidentiary hearing shall lie with the Alabama Court of Civil Appeals. An appeal shall be filed within 14 days after the receipt of the final written decision of the circuit judge or the mediator. An appeal by either party shall be perfected by filing a written notice of appeal with the clerk of the Court of Civil Appeals within 14 days after the receipt of the final written decision of the circuit judge or the mediator by the party. Failure to file a timely notice of appeal shall render the decision of the circuit judge or the mediator final."

(Emphasis added.) That 14-day period is the same as that provided in Alabama law for appeals from final judgments of juvenile courts. See Rule 4(a)(1)(E), Ala. R. App. P.

In Ex parte A.J., 256 So. 3d 671 (Ala. Civ. App. 2018), this court considered the timeliness of a petition for a writ of mandamus filed by a mother of a child involved in an ongoing paternity and child-support action in a juvenile court. That petition asserted a nonjurisdictional challenge -- failure to join an indispensable party -- to interlocutory orders entered by the juvenile court on June 1, 2017, August 29, 2017, and October 17, 2017, addressing genetic testing, visitation, and paternity; the petition was filed on November 28, 2017, 14 days after the juvenile court had denied a "motion to reconsider" those orders. We dismissed the mother's petition based upon the following rationale:

"Generally, a petition for the writ of mandamus in a juvenile matter must be filed within 14 days of the entry of the order under review. See Rule 21(a)(3), Ala. R. App. P.; Ex parte C.J.A., 12 So.3d 1214, 1215-16 (Ala. Civ. App. 2009) (explaining that the presumptively reasonable time for filing a petition for the writ of mandamus in a juvenile case is 14 days). The motion to reconsider did not extend the time for filing the mother's petition for the writ of mandamus.
See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003) (explaining that motions seeking reconsideration of interlocutory orders do not toll the time for filing a petition for the writ of mandamus). The mother's petition was filed months after the entry of the June 1, 2017, and August 29, 2017, orders and six weeks after the entry of the October 17, 2017, order. Thus, the mother's November 28, 2017, petition, having been filed more than 14 days after the entry of the June 1, 2017, August 29, 2017, and October 17, 2017, orders, is untimely regarding all three orders."

Ex parte A.J., 256 So. 3d at 673-74.

Similarly, although the presumptively reasonable time for seeking mandamus review under the TAA is, as it was in Ex parte A.J., 14 days after the entry of the pertinent order, Guin's first mandamus petition was filed 64 days after the circuit court's order quashing her subpoenas duces tecum, 29 days after the circuit court's order granting the superintendent's motion to quash Guin's deposition notices, and 22 days after the circuit court entered its order providing that Guin's deposition notices directed to the Board member and the Board's executive secretary would also be quashed. Further, notwithstanding the requirement in Rule 21(a)(3), Ala. R. App. P., that any petition for an extraordinary writ "filed outside [the] presumptively reasonable time ... include a statement of circumstances constituting good cause for the appellate court to consider the petition[ ] notwithstanding that it was filed beyond the presumptively reasonable time," Guin included no such statement in her first petition. This court, therefore, dismissed Guin's first mandamus petition on May 17, 2018, on the authority of Rule 21(a)(3), Ala. R. App. P.; § 16-24B-5(a), Ala. Code 1975; and Ex parte A.J., supra. See Ex parte Guin (No. 2170644) --- So. 3d ---- (Ala. Civ. App. 2018) (table). One day thereafter, on May 18, 2018, the circuit court entered an order ("the May 18 referral order") in which that court stated that that court would not be able to hear the cause within 45 days and referred the matter to a mediator.

Notwithstanding the May 18 referral order, counsel for Guin, between May 21 and May 23, 2018, filed a number of notices of intent to serve document-production and deposition subpoenas upon various other persons, including four Board members (William Edward Gilbert, James Lynn Rigsby, Lee Ann Morgan Headrick, and Michael Todd Vick); the First Bank of Jasper ("the Bank"); and six other individuals (Joanne Cordell, Ginger Lacy Stacks, Lila Bridges Farley, Luann Redmill, Gina Lynn Wisener, and Miki Renee Pate ("the individuals") ). However, none of those filings were preceded by a motion for leave from the circuit court. The Board members named in the new subpoenas moved to quash the subpoenas intended to be issued to them, and the Board in its official capacity (acting through its superintendent) separately moved to quash the subpoenas intended to be issued to the individuals and the Bank; among the grounds asserted was that the subpoenas were in contravention of the circuit court's prior order of February 1, 2018. The circuit court, again without taking cognizance of the May 18 referral order, held a hearing on May 29, 2018, regarding the motions to quash and entered an order on June 5, 2018, purporting to grant the motions to quash as to the subpoenas and to limit depositions of the Board members to one hour each. That order stated:

"During the hearing, the Court explained, and both parties agreed, that the ultimate issue to be determined by the court is whether 'the cancellation [of Guin's contract was] solely for cause pursuant to subdivision (1)' [of] the Alabama Teacher Tenure Act. The plain language of § 16-24B-3 expressly limits the issue on appeal before this court and places the burden of proof on the Board to prove, by a preponderance of the evidence, that its decision to terminate Guin was solely for cause. The statute also provides for an expedited evidentiary hearing to be completed within 45 days of initiating the action in the circuit court. Therefore, it is clear the legislature did not intend for the circuit courts to become entrenched in a review of the [B]oard's decision and did not envision or provide for a long drawn out process involving copious amounts of discovery on a multitude of issues. But rather, the statute calls for an expedient and simplified review that is to be completed within a [matter] of weeks. Accordingly, in reaching a decision regarding allowable discovery during this statutorily limited hearing procedure, this Court's primary concern is to balance [Guin's] right to due process, with the [Board's] right to an expeditious resolution of this matter.
"To this end, the Court notes that [ Ala. R. Civ. P., Rule 26,] permits discovery of relevant information not otherwise privileged. However, this same rule gives this Court the authority to limit or restrict the discovery process. Due to the expansive amount of discovery previously sought by [Guin] while this matter has been pending before the Court, and the protracted disputes, objections and responses filed and raised by the parties regarding discovery, on February 1, 2018, under the general discretionary authority of this Court and pursuant to the authority granted to this Court under Rule 26, this Court ordered that, 'The parties are ORDERED not to issue any other subpoenas for records in this action without first obtaining leave of court'.... This Order was entered, not to be punitive, but instead, to afford both parties access to information, in the Court's discretion, relevant to the issue before the Court, while at the same time avoiding useless expenditure of time and resources, both of the parties and of this Court. It was envisioned by the Court that if either party deemed it necessary to issue document subpoenas, that the party would make a proper showing to the Court, in writing, setting out the basis for requesting the subpoenas sought, so that the Court could make an initial determination regarding the relevance of the information sought in a judicially expeditious fashion, based on the proffer made by the party seeking the discovery, explaining how the discovery being sought was, in fact, relevant to the issue raised in this cause.
"Rather than ... comply with this Court's directive set out in its February 1, 2018 order, the clerk's record in this case reflects that [Guin] has recently issued and served nine deposition notices with subpoenas duces tecum, on numerous individuals, subpoenaing them to produce documents spanning back as much as seven years.
"....
"The [Board] has objected to and moved to quash the most recent subpoenas served by [Guin], asserting, as grounds, among other things, that the subpoenas were issued in violation of this Court's February 1, 2018 Order, and that the subpoenas seek documents that the Court has previously ruled were not relevant to the limited issue presented in this case. The Court finds that the deposition notices, which contain subpoenas duces tecum, were issued by [Guin] in violation of this Court's February 1, 2018 order, and based on this ground, standing alone, are therefore due to be quashed. Additionally, and alternatively, to the extent that the Court has previously ruled in this case that the information and testimony sought by said subpoenas duces tecum is ... irrelevant and is not otherwise subject to being produced by the individuals that it is sought from, the law of the case doctrine similarly requires a finding that said subpoenas are due to be quashed.
"The parties also disagree as to whether [Guin] should be allowed to depose the individual Board members. The Board members' attorney argued that the individual Board members should not be required to testify, in any respect, regarding statements or communications that they made during the course of the administrative proceedings before the Board, asserting that said communications are absolutely privileged. [Guin]'s counsel argued in response that the statute and case law do not afford any privilege covering communications made during the course of the Board's proceedings and that [Guin] should be allowed to depose the individual Board members regarding all communications made daring the Board's administrative process. In short, the Court does not fully agree with either party's contention.
"It is worth noting again that at the expedited hearing, the issue to be decided by this Court is whether the Board has proven by a preponderance of the evidence that Guin's contract was terminated solely for cause pursuant to subdivision (1) of [ Ala. Code 1975, § 16-24B-3(e) ]. Although the Court agrees with the Board members' contention that certain discussions between the Board members, and in particular, discussions made in executive session during their deliberation process, are protected by privilege, it is the opinion of the Court that individual Board members may be deposed and questioned regarding non-privileged communications made outside of their deliberations, relevant to the basis for their decision to terminate [Guin's] contract. Such testimony goes to the very essence of the issue to be determined by the court.
"....
"Based on the foregoing, IT IS THEREFORE ORDERED, ADJUDGED and DECREED by the Court as follows:
"1. That the Motion to Quash and For Protective Order ... filed on May 23, 2018 on behalf of Jamie Rigsby, Todd Vick, Bill Ed Gilbert, and Lee Ann Headrick [the Board members] is hereby GRANTED, without prejudice to [Guin]'s right to depose the three Board Members who voted to terminate [Guin]'s contract, consistent with the limitations set out below:
"2. That the Motion to Quash Subpoenas for Depositions and for Protective Order filed by [the superintendent] on May 25, 2018, [is] hereby GRANTED; and "3. That the Motion to Quash Non-Party Subpoena to First Bank of Jasper and for Protective Order ... filed on May 24, 2018 by the [superintendent] is hereby GRANTED.
"4. All deposition notices and the subpoenas duces tecum issued therewith are hereby QUASHED, and held for naught.
"....
"6. That the parties are directed to confer with each other in an effort to agree on a time for the Board members to be deposed. It is anticipated by the Court that said depositions should be completed within one day. It is FURTHER ORDERED by the Court that no Board member shall be deposed in excess of one hour. If the parties are unable to agree on a time for taking said depositions within seventy-two hours of the entry of this Order, the Court will enter an order setting the date and time for the same.
"7. That no other discovery request shall be filed by either party without first obtaining leave of Court, nor shall any request for discovery be made until after the completion of the Board [m]embers depositions, as these depositions should more clearly delineate the extent to which additional discovery, if any, is necessary, and help to define the scope of any necessary discovery."

Guin filed the present mandamus petition, which is directed to the June 5, 2018, order, on June 19, 2018. Unlike her first petition, this present petition was filed within a presumptively reasonable time as to the circuit court's June 5, 2018, order. However, after a preliminary examination of the present petition, this court requested the respondents to address, in addition to the substantive issues raised by this petition, whether the June 5, 2018, order was within the subject-matter jurisdiction of the circuit court in light of the May 18 referral order; the court also invited a reply from Guin. Although the respondents posit that the circuit court acted within its jurisdiction to render its June 5, 2018, order acting on their motions to quash, Guin contends that the circuit court relinquished its further jurisdiction in the underlying matter.

Our review of the TAA convinces this court that Guin's position is the more sound one. As we have noted, § 16-24B-3(e)(3) provides for "an expedited evidentiary hearing process" that is to occur "within 45 days of the ... request ... for an expedited hearing." The legislature clearly envisioned that time was to be of the essence in holding such a hearing to review the cancellation or nonrenewal of an employment contract of a contract principal because it mandated in that Code section that "the court shall refer the parties to a mediator to conduct the expedited evidentiary hearing within 45 days of the ... request for the expedited hearing" if the circuit court "determines that it is not able to complete the expedited evidentiary hearing within the 45-day period." Id. (emphasis added). In such instances, the TAA provides that the mediator acts in all respects in the circuit court's stead with respect to the review of the pertinent school board's decision. The mediator, like the circuit court, has the power to "excuse[ ]" a party's "[f]ailure to file a timely request for an expedited evidentiary hearing" ( Ala. Code 1975, § 16-24B-3(f)(1) ); the mediator's "written decision," like that of the circuit court, is "binding on the parties" ( § 16-24B-3(e)(3) ); the mediator's decision, like that of the circuit court, is "exclusively appealable to" this court for "a nonevidentiary appeal ... limited to the record from the expedited evidentiary hearing" ( § 16-24B-3(g) ; see also § 16-24B-5(a) ("[a]n appeal shall be filed within 14 days after the receipt of the final written decision of the circuit judge or the mediator") ); and a mediator's final written decision that is either not appealed to this court or is affirmed "shall have the force and effect of a final judgment upon which execution may issue, or which may be enforced by other appropriate writ" ( § 16-24B-5(c) ). Thus, there is no sound basis for dispute that a referral by a circuit court to a mediator of a civil action in which an expedited evidentiary hearing is called for under the TAA is a final and irrevocable delegation of the circuit court's jurisdiction to determine matters arising in that action, and the parties are thereafter bound by the orders and the judgment of the mediator insofar as they are not disturbed on further review by the appellate courts of Alabama.

In Ex parte MedPartners, Inc., 820 So.2d 815 (Ala. 2001), our supreme court considered whether a circuit court that had transferred a civil action to another tribunal had the power to take any further action in the action, such as to rescind its transfer order and reassert its former jurisdiction over the action. Our supreme court answered that question in the negative:

"Once the transferor court has granted the motion to transfer the case and the file has been sent to, and docketed by, the transferee court, the transferor court cannot then change its mind and vacate or set aside its transfer order or order the case returned. Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). Furthermore, the trial judge of the transferee court may not consider a motion to retransfer the case to the county in which it was originally filed. Ex parte Tidwell Indus., Inc., 480 So.2d 1201 (Ala. 1985). The aggrieved party's sole remedy in such a case is a petition for writ of mandamus directed to the transferor court."

820 So.2d at 821.

Based upon the foregoing facts and authorities, we conclude that the May 18 referral order divested the circuit court of subject-matter jurisdiction to hear and rule upon Guin's subsequent discovery requests and the respondents' motions to quash them. As was the case in Ex parte Wynn, 227 So.3d 534, 535 (Ala. Civ. App. 2017), "[t]his court cannot reach the merits of [the mandamus petitioner's] argument ... because the trial court's [challenged] orders are void." On the authority of Ex parte Wynn, we dismiss this mandamus petition.

PETITION DISMISSED.

Thompson, P.J., and Donaldson, J., concur.

Moore, J., concurs in the result, without writing.

      The letter also indicated that the superintendent was recommending termination of Guin's employment as a tenured teacher under other statutory provisions.

      Moreover, although Ex parte A.J. clearly indicates that the presumptively reasonable time for seeking mandamus review of an interlocutory order is not tolled by a petitioner's motions to reconsider that order, Guin's first petition was filed more than 14 days after the circuit court's orders denying Guin's motions to reconsider directed to the circuit court's orders quashing her subpoenas duces tecum and granting the superintendent's motion to quash Guin's deposition notices.

      According to one of the answers filed in response to the present mandamus petition, Guin has sought review, pursuant to Rule 21(e), Ala. R. App. P., in our supreme court of this court's judgment dismissing her first mandamus petition.

      Guin has also sought a stay of proceedings in the underlying civil action; we deny that motion as moot in light of our decision as to the second mandamus petition.


author: JOINER, Judge.

text:
    Colby Dwight BIRDSONG v. STATE of Alabama
    CR-15-1381
    Court of Criminal Appeals of Alabama.
    July 7, 2017
    Debora E. Palmer, Montgomery, for appellant.
    Luther Strange and Steve Marshall, attys. gen., and Jean A. Webb and Ferris Stephens, asst. attys. gen., for appellee.
   JOINER, Judge.

Colby Dwight Birdsong appeals his convictions for first-degree kidnapping, see § 13A-6-43, Ala. Code 1975, domestic violence by strangulation, see § 13A-6-138, Ala. Code 1975, violating a domestic-violence protection order, see § 13A-6-142, Ala. Code 1975, and three counts of first-degree burglary, see § 13A-7-5, Ala. Code 1975. Birdsong was sentenced to 25 years' imprisonment for the kidnapping conviction, 25 years' imprisonment for the burglary convictions, and 15 years' imprisonment for the domestic-violence conviction, all to be served concurrently. He was also ordered to pay a $50 crime-victims-compensation assessment, court costs, and attorney fees. For violating the protective order, Birdsong was sentenced to 12 months' detention in the Morgan County jail and was ordered to pay a $25 crime-victims-compensation assessment, a $100 bail-bond fee, court costs, and attorney fees.

Facts and Procedural History

The evidence adduced at trial showed that the victim, Dannialle Huff, and Birdsong had known each other for several years before they became involved in a romantic relationship and began living together. After almost two years, Huff ended the relationship in July 2012, wanting "nothing further to do with [Birdsong]." (R. 72.)

On August 1, 2013, Birdsong drove to Huff's house and walked to the door. At trial, Huff testified that she was apprehensive about opening the door for him because she believed that he had been stalking her. At that time, her friend, Allen Gore, was visiting her and offered to answer the door. According to Huff, Birdsong could see Huff behind the door, and he told her that he had something for her. He then pulled a gun from his pants.

Huff testified that, as Birdsong stepped into the doorway, Gore tackled him. Huff then called the Morgan County Sheriff's department. After this incident, Huff filed a petition for a protection-from-abuse order, which was later granted on November 6, 2013.

Huff further testified that she had no additional contact with Birdsong until January 29, 2015. Huff testified that around 8:30 a.m. the morning of January 29, Birdsong's vehicle pulled into her driveway. According to Huff, Birdsong got out of his car and ran toward her door. Although she tried to lock the door, Birdsong forced the door open and came inside. Huff testified that Birdsong had three zip ties in his hand and that he "lassoed" Huff's right wrist with one of them. (R. 83.) Birdsong also had two knives with him. Although Huff tried to "talk him down," Birdsong told her "not to worry" and that he was "going to take [her] to heaven." (R. 87-88.)

Huff testified that Birdsong then got behind her and "bear-hugged" her around her neck. During this time, Huff passed out more than once. In order to get Birdsong to stop hurting her, Huff told him that she would go with him but that he needed to give her time to get dressed. According to Huff, Birdsong allowed her to do so but urged her to hurry up because he believed the police were on their way.

As she began to get dressed, Huff saw Birdsong's grandparents pull up in their red van. She then screamed for help. In an effort to stop her, Huff said that Birdsong jumped on top of her and choked her until she passed out and fell to the ground. According to Huff, when she woke up, she saw Birdsong's grandfather, Earl Birdsong, and his grandmother trying to convince Birdsong to leave. Although Birdsong resisted at first, Earl eventually convinced him to leave after informing Birdsong that the police were on their way. After Birdsong left, Huff called the police.

Morgan County Investigator John Dickson testified that a "BOLO" ("be on the lookout") alert was issued among law enforcement for Birdsong's vehicle. According to Investigator Dickson, Birdsong was later spotted by Marshall County deputies in a Wal-Mart discount store parking lot in Arab, Alabama, and arrested. After the Marshall County deputies notified Investigator Dickson of Birdsong's arrest, Dickson took Birdsong into custody.

On July 16, 2015, Birdsong was indicted by the Morgan County Grand Jury for one count of first-degree kidnapping, three counts of first-degree burglary, one count of domestic violence by strangulation, and one count of violation of a protection-from-abuse order. Following a jury trial, Birdsong was found guilty of the above offenses on June 8, 2016, and was sentenced on August 5, 2016.

On July 29, 2016, Birdsong filed a motion for a new trial. Following a hearing, the circuit court denied this motion on August 19, 2016; Birdsong filed a notice of appeal that same day.

On December 27, 2016, appointed appellate counsel filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw from representing Birdsong on appeal. This Court granted that motion. We also appointed new appellate counsel and ordered further briefing on the following issue: Whether Birdsong's three first-degree burglary convictions violate the prohibition against double jeopardy.

Discussion

I.

We first address Birdsong's challenge to his conviction for first-degree kidnapping. Although not a model of clarity, Birdsong's argument appears to be that the circuit court should have instructed the jury regarding the "voluntary-release" provision of § 13A-6-43(b), Ala. Code 1975. Under that provision,

"[a] person does not commit the crime of kidnapping in the first-degree if he voluntarily releases the victim alive, and not suffering from serious physical injury, in a safe place prior to apprehension."

According to Birdsong, there was evidence indicating that he voluntarily released Huff and that she did not suffer any serious physical impairment or injury. (Birdsong's brief, pp. 25-27.)

Initially, we question whether this issue was properly preserved for appeal. In Alabama, it is well settled that

" '[r]eview on appeal is restricted to questions and issues properly and timely raised at trial.' Newsome v. State, 570 So.2d 703, 717 (Ala. Crim. App. 1989). 'An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.' Pate v. State, 601 So.2d 210, 213 (Ala. Crim. App. 1992). ' "[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof." ' McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995) (citation omitted)."

Ex parte Coulliette, 857 So.2d 793, 794 (Ala. 2003). Finally, an issue is not preserved for appellate review where no objection is made, before the jury retires, to an erroneous oral charge by the trial court. See Goins v. State, 521 So.2d 97, 99 (Ala. Crim. App. 1987) (citing Ex parte State of Alabama, 516 So.2d 846 (Ala. 1987) ).

Before the jury retired for deliberations, the circuit court asked Birdsong if he had any objections, exceptions, or requests for supplemental jury instructions; he indicated that he did not. (R. 264.) In fact, Birdsong never raised the issue found in subsection (b) of § 13A-6-43, Ala. Code 1975, at any time during his trial, including in his motion for a new trial or in a requested jury charge. See § 13A-6-43(b), Ala. Code 1975 ("The burden of injecting the issue of safe release is on the defendant ...."). Therefore, this claim is not properly preserved for review.

II.

We next address Birdsong's argument that his convictions for domestic violence by strangulation and for violating the protection-from-abuse order were improper. (Birdsong's brief, pp. 28-30.) Specifically, Birdsong argues that these two convictions are invalid because, he argues, the January 29, 2015, incident and the August 1, 2013, incident forming the basis for Huff's protection-from-abuse order occurred more than 12 months after he and Huff had ended their relationship. He argues that those charges were void because he and Huff were not involved in a "dating relationship" pursuant to § 13A-6-139.1, Ala. Code 1975, of Alabama's domestic-violence statute. (Birdsong's brief, p. 30.)

Nothing in the record, however, shows that Birdsong challenged his convictions for those charges on that basis at any time during his trial, in his motion for a new trial, or even during his hearing on his motion for a new trial. Thus, this claim is not properly preserved for appellate review. See Ex parte Coulliette, 857 So.2d at 794.

III.

We now turn to Birdsong's double-jeopardy challenges to his convictions.

A.

First, as to his first-degree-kidnapping and domestic-violence-by-strangulation convictions, Birdsong contends that double jeopardy applies because both charges arose out of the same act and both charges require proof of similar elements, such as physical injury, assault, trespass, and intimidation. (Birdsong's brief, p. 19, 23.) This argument is without merit.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court announced a two-pronged test for addressing this issue. First, the threshold inquiry under Blockburger is whether the alleged statutory violations arose from the same act or transaction. Id. at 304, 52 S.Ct. 180. Second, if the offenses did arise from the same act or transaction, then we must determine whether each offense requires proof of an additional fact which the other does not. Id. If each offense does not require proof of an additional fact that the other does not, then double jeopardy applies. Id. On the other hand, " 'if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.' " Id.

With regard to the first prong from Blockburger, the circuit court made it clear before the jury retired for deliberations that Birdsong's first-degree-kidnapping charge arose out of the incident that occurred on January 29, 2015. (R. 243.) Additionally, the indictment makes clear that Birdsong's domestic-violence-by-strangulation charge arose out of the same incident. (C. 9.) Having shown that the first prong in Blockburger is satisfied with respect to these two charges, we must now determine whether each offense required proof of an additional fact the other did not.

Alabama's first-degree-kidnapping statute, § 13A-6-43, Ala. Code 1975, provides:

"(a) A person commits the crime of kidnapping in the first degree if he abducts another person with intent to
"(1) Hold him for ransom or reward; or
"(2) Use him as a shield or hostage; or
"(3) Accomplish or aid the commission of any felony or flight therefrom; or
"(4) Inflict physical injury upon him, or to violate or abuse him sexually; or
"(5) Terrorize him or a third person; or
"(6) Interfere with the performance of any governmental or political function."

A person commits a domestic-violence-by-strangulation offense if "he or she commits an assault with intent to cause physical harm or commits the crime of menacing pursuant to Section 13A-6-23, by strangulation or suffocation or attempted strangulation or suffocation against a victim, as the term is defined in Section 13A-6-139.1." § 13A-6-138(b), Ala. Code 1975.

According to Birdsong, because each of these charges arose out of the same incident on the same date and because each offense, he says, requires proof of similar elements, double jeopardy applies. (Birdsong's brief, p. 19, 23.) This argument, however, is contrary to the plain language of both statutes. Specifically, each statute clearly indicates that each offense requires proof of an element that the other does not. Thus, under the second prong of Blockburger, double jeopardy does not apply here, and Birdsong is not entitled to relief on this issue.

B.

Birdsong further argues that his first-degree-kidnapping and domestic-violence-by-strangulation convictions are barred by principles of double jeopardy because they "arose from the burglary charge [and] one of the elements of proving burglary is the intent to commit a crime while inside a residence or building." (Birdsong's brief, p. 21.) Specifically, Birdsong argues that these offenses are, in essence, subsumed into his first-degree-burglary charge as underlying offenses.

Contrary to Birdsong's argument, the fact that the "crime" a person intends to commit for a first-degree-burglary offense may be either kidnapping or domestic violence does not mean that those offenses are subsumed into the first-degree-burglary charge so that a defendant cannot be charged with and convicted of each of those offenses separately. In fact, this Court has expressly held that, even where the intent is to commit a specific crime, such as kidnapping or domestic violence, burglary itself is a separate and distinct offense for which the defendant can be tried and convicted. See Dawson v. State, 675 So.2d 897, 903 (Ala. Crim. App. 1995). Thus, Birdsong's separate convictions for kidnapping and first-degree burglary based on an intent to commit kidnapping do not violate double-jeopardy principles. Likewise, his convictions for domestic violence by strangulation and first-degree burglary based on an intent to commit domestic violence do not violate double-jeopardy principles.

C.

Finally, Birdsong argues that his three first-degree-burglary convictions are barred by the prohibition against double jeopardy. We agree.

The Alabama Supreme Court has held that "where there are two different methods of proving the offense charged in one statute, they [do not] constitute separate offenses." Sisson v. State, 528 So.2d 1159, 1162 (Ala. 1988). In King v. State, 574 So.2d 921 (Ala. Crim. App. 1990), this Court discussed whether a defendant could be convicted of two counts of first-degree rape arising out of a single event. In that case, we stated:

"[W]e must determine whether an individual may be convicted of two counts contained in the same statute. As our Supreme Court stated in Sisson, [supra ], ... '[T]he two subsections of a similar statute were merely alternative methods of proving the same crime, and therefore, did not constitute separate offenses.' ...
"....
"...[W]e find that the [defendant] could not be convicted of ... two counts of the same statute. 'The Double Jeopardy Clause ... protects against multiple punishments for the same offense. [citation omitted]. Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.' Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed. 2d 187 (1977)."

574 So.2d at 929-30. More recently, in Childs v. State, 238 So.3d 90 (Ala. Crim. App. 2017), we discussed whether a defendant could be convicted of two counts of first-degree burglary arising out of a single event. In that case, Childs was convicted of two counts of first-degree burglary under two subsections of § 13A-7-5, Ala. Code 1975, and he was sentenced to consecutive sentences as a result of those convictions. 238 So.3d at 91. We recognized that both counts of burglary were intended as alternative methods of proving the same offense and held that, because his conduct did not constitute two separate offenses, punishing Childs twice for the same offense-first-degree burglary-violated his double-jeopardy rights. Id. at 92. The same reasoning can be applied here.

In Alabama, a person commits first-degree burglary under § 13A-7-5, Ala. Code 1975, if

"he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, the person or another participant in the crime:
"....
"(3) In effecting entry, is armed with a deadly weapon or dangerous instrument or, while in the dwelling or immediate flight from the dwelling, uses or threatens the immediate use of a deadly weapon or dangerous instrument against another person. The use of or threatened use of a deadly weapon or dangerous instrument does not include the mere acquisition of a deadly weapon or dangerous instrument during the burglary."

§ 13A-7-5(a), Ala. Code 1975. In the case before us, the record indicates that Birdsong was indicted on three counts of first-degree burglary as follows:

"COUNT II: The Grand Jury of said County further charges that before the finding of this indictment, Colby Dwight Birdsong, whose name is to the Grand jury otherwise unknown, did knowingly and unlawfully enter or remain unlawfully in a dwelling of Dannialle Huff with intent to commit a crime therein, to-wit: kidnapping, and while effecting entry, he was armed with a deadly weapon or dangerous instrument, to-wit: a knife, in violation of Section 13A-7-5 of the Code of Alabama.
"COUNT III: The Grand Jury of said County further charges that before the finding of this indictment, Colby Dwight Birdsong, whose name the Grand Jury otherwise unknown, did knowingly and unlawfully enter or remain unlawfully in a dwelling of Dannialle Huff with intent to commit a crime therein, to-wit: kidnapping, and while effecting entry or while in the dwelling or in immediate flight therefrom, he used or threatened the immediate use of a deadly weapon or dangerous instrument, to-wit: a knife, in violation of Section 13A-7-5 of the Code of Alabama.
"COUNT IV: The Grand jury of said County further charges that before the finding of this indictment, Colby Dwight Birdsong, whose name is to the Grand Jury otherwise unknown, did knowingly and unlawfully enter or remain unlawfully in a dwelling of Dannialle Huff with intent to commit a crime therein, to-wit: domestic violence, and while effecting entry or while in the dwelling or in immediate flight therefrom, he used or threatened the immediate use of a deadly weapon or dangerous instrument, to-wit: a knife, in violation of Section 13A-7-5 of the Code of Alabama."

(C. 9.)

Although the defendant in Childs was convicted of two counts of first-degree burglary under two different subsections of the statute, Birdsong was convicted of all three counts of first-degree burglary quoted above under the same subsection of the statute. (C. 9; R. 271.) The language in each indictment quotes almost verbatim the language found in Alabama's first-degree-burglary statute, § 13A-7-5(a)(3), Ala. Code 1975. The only differences between them are the crimes that Birdsong intended to commit (i.e., kidnapping or domestic violence) and a slight variation on the clause pertaining to entry of a victim's dwelling. Under these circumstances, the counts were alternative methods of proving the same offense-burglary-and are not three separate and distinct offenses. Because Birdsong's conduct did not constitute three separate offenses, convicting Birdsong three times for the same offense violated his right to be free from double jeopardy. Accordingly, this case is remanded for the circuit court to vacate two of Birdsong's convictions for first-degree burglary.

Conclusion

The judgment of the circuit court is affirmed in part with respect to Birdsong's convictions for first-degree kidnapping, domestic violence by strangulation, and violating a domestic-violence protection order. This case is remanded, however, with instructions to the circuit court to vacate two of Birdsong's first-degree-burglary convictions. Due return shall be made to this Court within 42 days of the date of this opinion.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      At the sentencing hearing, the circuit court noted, and the parties agreed, that the three counts of first-degree burglary for which Birdsong was convicted "all arose from a single incident on January 29, 2015," and that, therefore, "there could only be one sentence imposed." (R. 287.)

      With respect to Birdsong's sentence for violating the domestic-violence protection order, the record does not indicate whether Birdsong is to serve the term of his detention concurrently with or consecutively to the sentences for his remaining convictions. Accordingly, Birdsong's 12-month detention is to be served consecutively to his other sentences. See Rule 26.12, Ala. R. Crim. P. ("Separate sentences of imprisonment imposed on a defendant for two or more offenses shall run consecutively, unless the judge at the time of sentencing directs otherwise.").

      The Morgan County Grand Jury returned two indictments. The indictment in CC-15-829 included one count (violation of a protection-from-abuse order); the indictment in CC-15-828 included five counts, one for each of the other charges against Birdsong.

      In his brief, counsel identified three potentially arguable issues for appeal but ultimately determined that there was no merit to them.

      Our order permitted counsel to address "any other issues" as well. New appellate counsel addressed other related issues, which we, in turn, address.

      Birdsong requests that we review these convictions under the "plain-error" doctrine. (Birdsong's brief, p. 30.) The plain-error doctrine, however, applies only in death-penalty cases. See, e.g., Wiggins v. State, 193 So.3d 765, 775 (Ala. Crim. App. 2014) (quoting Pugh v. State, 355 So.2d 386, 389 (Ala. Crim. App. 1977) ("Indeed, it has been said that the plain-error doctrine 'applies to death penalty cases, but not to other convictions.' ")).
      *Note from the reporter of decisions: On October 6, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On January 5, 2018, that court denied rehearing, without opinion.


text:
    Douglas L. DRIVER and Margaret R. Driver, Petitioners, v. CITY OF NEPTUNE BEACH, Craig Williams, et al., Respondents.
    No. 1D18-571
    District Court of Appeal of Florida, First District.
    November 1, 2018
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Tallas BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4472
    District Court of Appeal of Florida, First District.
    October 24, 2018
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Mark C. JACKSON, Appellant, v. STATE of Florida United States of America, et al., Appellees.
    No. 1D18-0242
    District Court of Appeal of Florida, First District.
    September 5, 2018
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    David Ray GUNTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2779
    District Court of Appeal of Florida, First District.
    Opinion filed December 19, 2017.
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Richard L. DUMAS Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2606
    District Court of Appeal of Florida, First District.
    December 11, 2018 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Raytaurus E. ARMSTRONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2012
    District Court of Appeal of Florida, First District.
    November 30, 2018
    DECISION WITHOUTPUBLISHED OPINION
   DISMISSED.


text:
    John GUIDRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3796
    District Court of Appeal of Florida, First District.
    November 15, 2018
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Anthony Keith WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4261
    District Court of Appeal of Florida, First District.
    November 15, 2018
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Mary Katherine DAY-PETRANO, Appellant, v. Charles D. HALL; and Astrid Hall, Appellees.
    No. 1D17-3215
    District Court of Appeal of Florida, First District.
    January 28, 2019 Rehearing Denied March 15, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Frederick LANE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2984
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    D.R. HORTON, INC. - Jacksonville, Appellant, v. HERON'S LANDING CONDOMINIUM ASSOCIATION OF JACKSONVILLE, INC., Appellee.
    No. 1D17-5014
    District Court of Appeal of Florida, First District.
    December 27, 2018
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Horace CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5464
    District Court of Appeal of Florida, First District.
    April 13, 2018
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Anthony D. RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2479
    District Court of Appeal of Florida, First District.
    February 8, 2019 Rehearing Denied April 5, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Carlos A. BODOY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2976
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Phillip CASCIOLA, Appellant, v. Bernard DALEY and Stephen Tourtelot, Appellees.
    No. 1D17-4067
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    SANTA FE LAKE DWELLERS ASSOC., INC. and Don Morgan, Petitioners, v. TOM'S HIGH ON THE HOG REAL PIT BARBECUE, INC., and the Board of County Commissioners of Bradford County, Respondents.
    No. 1D18-542
    District Court of Appeal of Florida, First District.
    February 5, 2019 Rehearing Denied March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Alvin K. HERRON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4908
    District Court of Appeal of Florida, First District.
    March 5, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-307
    District Court of Appeal of Florida, First District.
    March 1, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael Joseph NILIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-316
    District Court of Appeal of Florida, First District.
    March 1, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Jimmie CASEN, Appellant, v. WESTSIDE TRUCK N AUTO SELLER, ZACK, Appellee.
    No. 1D17-3348
    District Court of Appeal of Florida, First District.
    February 20, 2019 Rehearing Denied April 10, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Derek T. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2891
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Myrick Brock HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1169
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Darwin G. CAIN, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-5008
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Jorge PIEKAREWICZ and J. D. Rayburn, Appellants, v. PALMETTO CLUB PROPERTIES LIMITED PARTNERSHIP and United National Bank, Appellees.
    No. 1D18-1223
    District Court of Appeal of Florida, First District.
    March 13, 2019 Rehearing Denied April 5, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    D.J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4332
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    D.J.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4331
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Akil TYMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4928
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Carl E. HOLT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3636
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Everly S. LIPPWE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3606
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Patrick Lee CARSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3199
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Darryl Ronald HOLLIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3036
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Jonathan T. PARRISH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2951
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Larry Shane MAYO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2342
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael Roy BAXTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1618
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Mario WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-4012
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Donald W. MCCANTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1948
    District Court of Appeal of Florida, First District.
    March 25, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Amos TAMBUNGA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2179
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Elvirn BURNETTE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2052
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Jerome LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3215
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Fidel Perez GONI, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-964
    District Court of Appeal of Florida, First District.
    March 26, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellant, v. Charles F. MCCLELLAN, and Natasha Nemeth, Appellees.
    No. 1D18-1212
    District Court of Appeal of Florida, First District.
    March 29, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Daryll GOODING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4348
    District Court of Appeal of Florida, First District.
    March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Robert PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0086
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    William H. RINGWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D19-0069
    District Court of Appeal of Florida, First District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   DISMISSED.


text:
    Timothy Kyle ABNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2180
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellant, v. Charles F. MCCLELLAN & Natasha Nemeth, Appellees.
    No. 1D18-128
    District Court of Appeal of Florida, First District.
    March 29, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    GENERAL EMPLOYEES PENSION FUND, City of Jacksonville, Petitioner, v. Sabrina PRYCE-JONES, Respondent.
    No. 1D18-4424
    District Court of Appeal of Florida, First District.
    March 29, 2019
    DECISION WITHOUTPUBLISHED OPINION
   DENIED.


text:
    STAR POINTE CAPITAL, LLC, AS TRUSTEE OF the 3057 HALEY LANE LAND TRUST, Appellant, v. Robert M. SCHVEY, et al., Appellee.
    No. 1D17-4836
    District Court of Appeal of Florida, First District.
    March 29, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Daniell L. MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1521
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Angela GIVENS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-734
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Enrique BARQUINERO and Gerald Freeman, Jr., Appellees.
    No. 1D19-0675
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    N.R., Mother of T.R. and M.J., Minor Children, Petitioner, v. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent.
    No. 1D19-27
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   DENIED.


text:
    Kaleb Javon LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-997
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Kaleb Javon LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-872
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    J.H., Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3409
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Susan MARACLE, Appellant, v. WILMINGTON SAVINGS FUND SOCIETY FSB, Appellee.
    No. 1D18-280
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    ISLANDVIEW BEACH HOMEOWNER'S ASSOCIATION, INC., Petitioner, v. Jena L. SWEENEY and Michael D. Sweeney, Respondents.
    No. 1D18-3189
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Margaret MCLEAN, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
    No. 1D17-5362
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Martha BARTLETT, Appellant, v. KALEIDOSCOPE THEATRE, INC., Appellee.
    No. 1D18-2952
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Ryan MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3689
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   AFFIRMED.


text:
    Isaac SIMMONS, Appellant, v. RAVE MOTION PICTURES PENSACOLA, L.L.C., Camatic Pty., Ltd., d/b/a Camatic Seating Inc., and Universal Cinema Services, Inc., Appellees.
    No. 1D17-2590
    District Court of Appeal of Florida, First District.
    April 2, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Nicholas A. HERNANDEZ, DOC #T74165, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1648
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    BOARD OF TRUSTEES OF the CITY OF LAKELAND POLICE OFFICERS' RETIREMENT SYSTEM, Petitioner, v. Melanie DIXON, Respondent.
    Case No. 2D18-2413
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    James C. CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2449
    District Court of Appeal of Florida, First District.
    January 14, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Christina PAYLAN, M.D., Appellant/Petitioner(s), v. Lyann GOUDIE, Esq., Appellee/Respondent(s).
    CASE NO.: 2D17-4472
    District Court of Appeal of Florida, Second District.
    March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Neelam T. UPPAL, Appellant/Petitioner(s), v. WELLS FARGO, Appellee/Respondent(s).
    CASE NO.: 2D19-1148
    District Court of Appeal of Florida, Second District.
    March 26, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Danny J. LAROCCO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4492
    District Court of Appeal of Florida, Second District.
    March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    John E. NOBLE and Holly Harger, Appellant/Petitioner(s), v. U.S. BANK, N.A., Appellee/Respondent(s).
    CASE NO.: 2D18-0009
    District Court of Appeal of Florida, Second District.
    March 14, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    M.G., Appellant/Petitioner(s), v. DEPARTMENT OF AGRICULTURE CONSUMER SERVICES, DIVISION OF LICENSING, Appellee/Respondent(s).
    CASE NO.: 2D18-3474
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Fotina A. PAPAS, Appellant/Petitioner(s), v. BANK OF AMERICA, N. A., Appellee/Respondent(s).
    CASE NO.: 2D18-4003
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    John D. STACEY, Appellant/Petitioner(s), v. Emma S. STACEY, a/k/a Emma Stanley, Appellee/Respondent(s).
    CASE NO.: 2D18-2981
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Jason Richard KRATZER, Appellant/Petitioner(s), v. Jessica Lee HELMES, Appellee/Respondent(s).
    CASE NO.: 2D18-1110
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    T.J.S., Appellant/Petitioner(s), v. Grady C. JUDD, Sheriff of Polk County, Appellee/Respondent(s).
    CASE NO.: 2D19-1103
    District Court of Appeal of Florida, Second District.
    March 29, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Erin W. PHILLIPS, Appellant/Petitioner(s), v. Donald E. PHILLIPS, Appellee/Respondent(s).
    CASE NO.: 2D19-1085
    District Court of Appeal of Florida, Second District.
    March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Marianne ALBERGO, Appellant/Petitioner(s), v. Robert ALBERGO, Appellee/Respondent(s).
    CASE NO.: 2D19-0840
    District Court of Appeal of Florida, Second District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Steven PEROSINO, Appellant/Petitioner(s), v. Bob GUALTIERI, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D19-0903
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Ernest WILLIAMS, Appellant/Petitioner(s), v. Bob GUALTIERI, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D19-1461
    District Court of Appeal of Florida, Second District.
    April 17, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Transferred.


text:
    John D. FERNANDEZ, Appellant/Petitioner(s), v. U.S. BANK TRUST, N. A., et al., Appellee/Respondent(s).
    CASE NO.: 2D18-1246
    District Court of Appeal of Florida, Second District.
    April 16, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Elijah BOWDEN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0037
    District Court of Appeal of Florida, Second District.
    March 21, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Granted.


text:
    Lukely RILEY, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0452
    District Court of Appeal of Florida, Second District.
    March 21, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Issued.


text:
    Josaa. MEZA, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3961
    District Court of Appeal of Florida, Second District.
    April 16, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Cristian A. VERGARA, Appellant/Petitioner(s), v. Sisy Escobar VERGARA, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-1878
    District Court of Appeal of Florida, Second District.
    March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Granted. Dismissed.


text:
    Marzuq AL HAKIM, Appellant/Petitioner(s), v. Julie JONES, Secretary, Appellee/Respondent(s).
    CASE NO.: 2D18-1279
    District Court of Appeal of Florida, Second District.
    March 14, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Gregory SELIGMAN, Appellant/Petitioner(s), v. Ferial A. NIJEM, Appellee/Respondent(s).
    CASE NO.: 2D17-4506
    District Court of Appeal of Florida, Second District.
    February 12, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    James R. MALONE, Appellant/Petitioner(s), v. Linda R. MALONE, Appellee/Respondent(s).
    CASE NO.: 2D18-1096
    District Court of Appeal of Florida, Second District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Scott DUGAN, Appellant/Petitioner(s), v. Jekaterina FEDOSEJEVA, Appellee/Respondent(s).
    CASE NO.: 2D19-1120
    District Court of Appeal of Florida, Second District.
    March 27, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Denied.


text:
    Cheyenne MARRON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4285
    District Court of Appeal of Florida, Second District.
    March 21, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Granted.


text:
    David J. PERSONS, et al., Appellant/Petitioner(s), v. HSBC BANK USA, NATIONAL ASSOC. as Trustee, et al., Appellee/Respondent(s).
    CASE NO.: 2D18-0860
    District Court of Appeal of Florida, Second District.
    March 14, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    WILLIAMS FRM-FAST RESPONSE MAINTENANCE LLC, Appellant/Petitioner(s), v. LEE COUNTY, VR Labs and VR Laboratories, LLC, Appellee/Respondent(s).
    CASE NO.: 2D19-0436
    District Court of Appeal of Florida, Second District.
    April 17, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Appeal is dismissed.


text:
    GREEN LIFE LUXURY HOMES, LLC, Appellant/Petitioner(s), v. Kenny WINTERHALTER, et al, Appellee/Respondent(s).
    CASE NO.: 2D18-4463
    District Court of Appeal of Florida, Second District.
    April 16, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Appeal is dismissed.


text:
    WATERMARK REALTY, INC. d/b/a Prudential Florida Realty, Appellant/Petitioner(s), v. Anthony VACCA, Appellee/Respondent(s).
    CASE NO.: 2D18-3408
    District Court of Appeal of Florida, Second District.
    March 28, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismiss is granted.


text:
    Ivan MCCOLLUM, Appellant/Petitioner(s), v. DEUTSCHE BANK NATIONAL TRUST CO., Appellee/Respondent(s).
    CASE NO.: 2D18-3443
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Appeal is dismissed.


text:
    Nagy FARAG, Appellant/Petitioner(s), v. Helana FARAG n/k/a Helana Mansi, Appellee/Respondent(s).
    CASE NO.: 2D18-4725
    District Court of Appeal of Florida, Second District.
    April 17, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Hiram SANTONI, Jr., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0076
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Willie FEASTER, IV, Appellant/Petitioner(s), v. DEPARTMENT OF REVENUE O/B/O Tina Marie BRAVO, Appellee/Respondent(s).
    CASE NO.: 2D18-3452
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Dismissed.


text:
    Cassandra MURPHY & Joseph Murphy, Appellant/Petitioner(s), v. U.S. BANK TRUST, N.A., as Trustee, et al, Appellee/Respondent(s).
    CASE NO.: 2D18-0750
    District Court of Appeal of Florida, Second District.
    March 14, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Appeal is dismissed.


text:
    BOCA STEL 2, LLC, Appellant/Petitioner(s), v. U.S. BANK, N.A., et al, Appellee/Respondent(s).
    CASE NO.: 2D18-3112
    District Court of Appeal of Florida, Second District.
    March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Appeal is dismissed.


text:
    Darrell L. ARLINE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1021
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Edwin GARCIA GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1693
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Samuel L. WEATHERSPOON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1770
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Hector Alexis MELENDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2426
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Devon Oshea TAYLOR-CRAWFORD, DOC #F20088, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1809
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael Shannon BOLDING, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2556
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Antonio M. NEAL, DOC #124111, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-861
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Robert L. GRAY and Zillah R. Jordan-Gray a/k/a Zillah Gray, Appellants, v. U.S. BANK, N.A., AS TRUSTEE, ON BEHALF OF the J.P. MORGAN MORTGAGE ACQUISITION CORP. 2006-FRE2 ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-FRE2 ; United States of America; Unknown Tenant in Possession of the Subject Property, Appellees.
    Case No. 2D16-4085
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    R.A., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1388
    District Court of Appeal of Florida, Second District.
    Opinion filed March 6, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    SGM BUILDING GROUP, INC., Appellant, v. SWF PREMIUM REAL ESTATE LLC., d/b/a Engel & Volkers, a Florida Limited Liability Company, Appellee.
    Case No. 2D17-4375
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    PROF-2013-S3 LEGAL TITLE TRUST, BY U.S. BANK NATIONAL ASSOC., as Legal Title Trustee, Appellant, v. Denis PHILLIPS and Lori Phillips, Appellees.
    Case No. 2D17-3183
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Willie Frank JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2203
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    In the INTEREST OF K.J.H. and K.M.H., minor children.
    K.H., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4347
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Richard HERBERT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3601
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    William Joseph JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1758
    District Court of Appeal of Florida, Second District.
    Opinion filed March 8, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Johnny T. ALLEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2381
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Anthony ROSS-SPAGONE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4514
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    In the INTEREST OF J.R., a child.
    B.D., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4082
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Ryan William COVEMAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3607
    District Court of Appeal of Florida, Second District.
    Opinion filed March 20, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Demetrius JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1162
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Emily Lauren SMITH, DOC #Y48718, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4846
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Richard MUTSCHLER, Appellant, v. Richard James BANNAN, Appellee.
    Case No. 2D18-1316
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Carolyn DANIELS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-149
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Kenneth B. LAVARRE, DOC #540547, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1602
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Mack Charles SHULER, DOC #767560, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1789
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Eric Karl MCCOY, DOC #051791, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1906
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael Jerome MCKINNEY, DOC #100414, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1909
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Spencer PEEPLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2144
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Michael MCCALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2414
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    John LEDBETTER, DOC #909744, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4408
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019.
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.


text:
    Richard PETERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2428
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019
    DECISION WITHOUTPUBLISHED OPINION
   Affirmed.