text:
    Delores GREENWOOD v. Ross Payton GREENWOOD.
    2070452.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    Robert G. Wilson of Wilson & Scott, LLC, Fort Payne, for appellee.
   BRYAN, Judge.

Delores Greenwood (“the mother”) appeals a judgment of the DeKalb Circuit Court that modified the physical custody of the parties’ six-year-old son (“the son”) by transferring it from the mother to Ross Payton Greenwood (“the father”). We dismiss the appeal as being from a nonfinal judgment.

The parties separated in November 2002, and the mother relocated to West Virginia sometime thereafter. The trial court entered a judgment divorcing the parties in July 2003. The divorce judgment awarded the physical custody of the son to the mother and “standard” visitation rights to the father. The son, born on October 10, 2001, is the only child born of the parties’ marriage.

On December 8, 2005, the father petitioned the trial court to modify custody of the son by transferring custody from the mother to the father. The father’s December 2005 petition also requested that the trial court require the mother to show cause why she should not be adjudged in contempt of court. The father alleged that the mother had violated a prior order of the trial court by, among other things, refusing to provide the father with her address and by denying the father visitation with the son in October 2005 and in November 2005. On January 25, 2006, the mother responded to the father’s petition to modify custody by moving the trial court for a change of venue.

On September 12, 2006, the father again petitioned the trial court to have the mother adjudged in contempt of court because she had, among other things, allegedly “enrolled the [son] in a K4 kindergarten program, which is not mandatory, for the sole purpose of depriving the [father] of his visitation rights.” The mother answered the father’s petition with a general denial of all allegations contained in the petition.

On December 28, 2006, the father filed with the trial court a “petition to show cause and for temporary custody.” The father’s December 2006 petition alleged, among other things, that the mother had continued to violate a prior order of the trial court by refusing to disclose the son’s address to the father and that the mother had been denying the father any contact with the son. After a hearing on the father’s December 2006 petition had been continued because the mother had just recently given birth in West Virginia, the father, on March 27, 2007, filed with the trial court yet another petition requesting temporary custody of the son. The father’s March 2007 petition alleged, among other things, (1) that mail that had been sent to the mother’s last known address had been returned to the father’s attorney marked “not known unable to forward” and (2) that “the phone numbers previously provided to [the father] to contact [the son] are no longer in service.” The trial court issued an order setting a hearing for May 7, 2007, on the father’s March 2007 petition for temporary custody. The trial court heard testimony from only the father at the May 7, 2007, hearing; the mother failed to appear.

On May 9, 2007, the trial court entered an order awarding to the father temporary custody of the son pending further order of the trial court. The trial court’s May 2007 order found, in pertinent part:

“6. The [mother] has continued to deny the [father] visitation with the [son] and has continued to refuse to provide the [father] with an address for the [son].
“10. The [father] has no way to contact the [mother] because the phone number he was given has been disconnected.
“11. Based upon all of the foregoing the Court finds the [mother] has willfully violated previous order of this Court and that the health and physical well-being of the [son] are in danger.”

On September 25, 2007, the mother filed an answer to the father’s December 2006 and March 2007 petitions for temporary custody. The mother’s answer asserted, in pertinent part, that the trial court was an inconvenient forum and that the proceeding should be transferred to the mother’s state of residence, West Virginia. Additionally, on September 25, 2007, the trial court held a final hearing on the father’s petition to modify custody.

On October 11, 2007, the trial court purported to enter a final judgment modifying the physical custody of the son by transferring it from the mother to the father and awarding the mother supervised visitation with the son on one weekend each month. The judgment did not dispose of the father’s December 2005 and September 2006 petitions that sought to have the mother adjudged in contempt of court for denying the father visitation with the son in violation of a prior trial court order. On October 25, 2007, the mother filed a post-judgment motion. After holding a hearing on the matter, the trial court, on January 2, 2008, entered an order amending its October 11, 2007, judgment by awarding the mother unsupervised visitation with the son. The trial court also amended its October 11, 2007, judgment by requiring the father to “make the [son] available to receive a telephone call from the [mother] each Sunday at 3:00 p.m. Central Standard Time.” All other relief requested by the mother in her postjudgment motion was denied. The mother then timely appealed.

The mother raises three issues on appeal. The mother first argues that the trial court erred by failing “to dismiss and transfer these proceedings to the State of West Virginia on the basis of inconvenient forum pursuant to Ala.Code [1975], § 30-3B-207....” The mother next argues that the trial court erred in finding that a material change in circumstances existed to warrant a modification of custody. Finally, the mother argues that the trial court exceeded its discretion by “restricting the terms and scope of visitation when there is no basis for harm or risk to the [son], or in the alternative, that such limitation is too broad for any alleged concern or risk.”

Even though this issue has not been addressed by either party, this court must first determine whether it has jurisdiction over this appeal. “ ‘Jurisdictional matters are of such importance that a court may take notice of them ex mero motul Naylor v. Naylor, 981 So.2d 440, 441 (Ala.Civ.App.2007) (quoting McMurphy v. East Bay Clothiers, 892 So.2d 395, 397 (Ala.Civ.App.2004)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006) (citing Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979)). “[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ ” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)).

In the present case, the father’s December 2005 and September 2006 contempt petitions — that, for all that appears in the record, were never ruled upon by the trial court — were intertwined with the father’s custody-modification petitions. “[D]uring a postdivorce proceeding, [if] the trial court fails to rule on every pending contempt motion, its failure to do so ... affect[s] the finality of the judgment in the postdivorce proceeding because, in such circumstances, the filing of each contempt motion does not initiate a separate and independent proceeding.” Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007). Therefore, the trial court’s failure to dispose of the father’s December 2005 and September 2006 contempt petitions renders the trial court’s October 11, 2007, judgment nonfinal. Accordingly, we must dismiss the mother’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . The mother's brief to this court asserts that the notice of the May 7, 2007, hearing was mailed to the "wrong address” and that is why she failed to appear at the hearing. However, the mother testified at trial that the notice had been mailed to the address that she had given to her attorney but that she had moved from that residence in December 2006, apparently without providing her attorney with a forwarding address.

      . The trial court's judgment also provided that
      "[a]t the end of twenty-four (24) months from the date of this Order, the [mother] shall have additional and unsupervised visitation of one (1) week prior to Christmas in even-numbered years and one (1) week after Christmas in odd-numbered years and two (2) weeks each Summer provided the [mother] furnishes thirty (30) days written notice of the date she intends to exercise said Summer visitation.”

      . Alabama Code 1975, § 30-3B-207, provides, in pertinent part:
      “(a) A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court's own motion, or request of another court.

      “(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.”


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Ex parte C & D LOGGING. (Re Willie Mobley v. C & D Logging). C & D Logging v. Willie Mobley.
    2070159 and 2070198.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.

      William E. Pipkin, Jr., of Austill, Lewis & Pipkin, P.C., Mobile, for petitioner/appellant C & D Logging.
    Bryan G. Duhé, Mobile, for respondent/appellee Willie Mobley.
   THOMPSON, Presiding Judge.

On June 6, 2006, Willie Mobley sued C & D Logging seeking to recover workers’ compensation benefits for an injury that he alleged arose out of and in the course of his employment with C & D Logging. C & D Logging answered and denied liability, contending, among other things, that Mobley had not suffered an on-the-job injury.

On March 2, 2007, Mobley filed a motion in the trial court asking that court to compel C & D Logging to provide, pursuant to § 25-5-77(a), Ala.Code 1975, a panel of four physicians; Mobley asserted that he had become dissatisfied with his current authorized treating physician. In his motion to compel, Mobley specifically asked that the four-physician panel be composed of physicians specializing in pain management. The trial court granted the motion to compel on March 6, 2007. C & D Logging provided Mobley a panel of four physicians.

On March 29, 2007, Mobley filed a second motion to compel in which he objected to two of the physicians on the panel of four provided by C & D Logging. Specifically, Mobley asserted that one of the physicians listed on the panel of four was in the same practice group as the physician Mobley desired to leave, which, Mobley argued, contravened § 25-5-77(a); that section provides that “[t]he four physicians or surgeons selected by the employer hereunder shall not be from or members of the same firm, partnership, or professional corporation.” Mobley also contended that another physician listed on the panel of four had offices in Montgomery rather than in or near Mobile. In his second motion to compel, Mobley alleged that “[tjhere are two local pain-management groups who were not listed on [C & D Logging’s] panel, and particularly Dr. Thomas Yearwood and Dr. Patrick Couch”; Mobley asked that the trial court order C & D Logging “to provide the names of two additional local pain-management physicians.” The trial court granted Mobley’s second motion to compel on the same day on which that motion was filed.

On April 13, 2007, C & D Logging filed a motion asking the trial court to reconsider its March 29, 2007, order granting Mob-ley’s second motion to compel. In that motion, C & D Logging argued that Mob-ley lived between Montgomery and Mobile, so the choice of a Montgomery physician was not in error, and that because Mobley had become dissatisfied with a physiatrist, he was not entitled to a panel of four pain-management specialists. C & D Logging further stated that it “did not have an opportunity to respond to these issues, and it would appreciate an opportunity to do so before the Court issues a ruling.”

In August 2007, C & D Logging moved for a summary judgment. Mobley opposed that motion. The trial court denied C & D Logging’s motion for a summary judgment.

In September 2007, C & D Logging filed a motion asking for a hearing on its April 13, 2007, motion to reconsider. The trial court did not conduct a hearing on the motion to reconsider. Rather, during the final hearing on the merits, the trial court verbally denied C & D Logging’s April 13, 2007, motion to reconsider.

After conducting the final hearing, the trial court, on October 19, 2007, entered an order in favor of Mobley. In its October 19, 2007, order, the trial court found, among other things, that Mobley had suffered an on-the-job injury and that Mobley was permanently and totally disabled as a result of that injury. In addition, the trial court awarded a lump-sum fee for Mob-ley’s attorney and ordered C & D Logging to pay $1,360.64 in costs.

On November 20, 2007, C & D Logging filed in this court a petition for a writ of mandamus challenging the trial court's March 29, 2007, order granting Mobley’s second motion to compel; this court docketed that petition as case number 2070159. On December 4, 2007, this court issued an order denying C & D Logging’s petition for a writ of mandamus in case number 2070159. C & D Logging filed an application for rehearing of that ruling.

On November 29, 2007, C & D Logging filed a notice of appeal or, in the alternative, a petition for a writ of mandamus, challenging certain portions of the October 19, 2007, order; this court assigned that filing case number 2070198. This court later consolidated the application for rehearing in case number 2070159 with case number 2070198.

2070159 — Application for Rehearing

We first address C & D Logging’s application for rehearing from this court’s denial of its petition for a writ of mandamus in case number 2070159. In its November 20, 2007, petition, C & D Logging sought a writ of mandamus ordering the trial court to vacate the March 29, 2007, order or, in the alternative, directing the trial court to conduct a hearing on the second motion to compel. C & D Logging argued that the Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, gave it, as the employer, the right to select the physicians on the panel of four. C & D Logging also argued that the panel of four it had provided Mobley complied with the pertinent provisions of the Act and, therefore, that the original panel of four should be reinstated.

A petition for a writ of mandamus must be filed within a reasonable time, which is generally the same time allowed for taking an appeal, i.e., 42 days. Rule 21(a)(3), Ala. R.App. P.; Ex parte Onyx Waste Servs. of Florida, 979 So.2d 838 (Ala.Civ.App.2007); see also Rule 4(a)(1), Ala. R.App. P. (providing that an appeal must be filed within 42 days of the entry of a judgment). We note that C & D Logging’s April 13, 2007, motion to reconsider did not extend the time for filing a timely petition for a writ of mandamus from the March 29, 2007, order. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003) (“[T]he tolling effect of Rule 59[, Ala. R. Civ. P.,] is not involved with respect to motions to ‘reconsider’ interlocutory orders.”); and Ex parte Onyx Waste Servs. of Florida, 979 So.2d at 834 (“[A] motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.”).

In both its November 20, 2007, petition for a writ of mandamus in case number 2070159 and in its application for rehearing from this court’s denial of that petition, C & D Logging acknowledged that the petition was filed outside the presumptively reasonable time for challenging the March 29, 2007, order. When a petition for a writ of mandamus is filed outside the presumptively reasonable time, it must contain “a statement of circumstances constituting good cause for the appellate court to consider the petition.” Rule 21(a)(3), Ala. R.App. P.

“The ‘Committee Comments to Amendments to Rule 21(a) and 21(e)(4) Effective September 1, 2000,’ set forth the following factors for an appellate court to consider in determining whether good cause exists for the court to consider an untimely petition for a writ of mandamus:
“ ‘[T]he prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.’ ”

Ex parte Fiber Transp., L.L.C., 902 So.2d 98, 100-01 (Ala.Civ.App.2004).

In its application for rehearing in case number 2070159, C & D Logging states that it had good cause to file its petition for a writ of mandamus in that case beyond the presumptively reasonable time, and it reasserts some of the arguments contained in its original petition. Therefore, we examine the statement of good cause for accepting its untimely petition that is contained in C & D Logging’s petition for a writ of mandamus in case number 2070159.

As explanation for the delay in filing the petition for a writ of mandamus, C & D Logging pointed out that our supreme court has stated that “ ‘[t]he mere passage of time, without more, will not suffice’ ” to find that a petition for a writ of mandamus was not filed within a reasonable time. Ex parte Smith, 736 So.2d 604, 609 (Ala.1999) (quoting Ex parte Johnson, 485 So.2d 1098, 1105 (Ala.1986)) (emphasis added). We agree that the passage of time between the entry of the March 29, 2007, order and the filing of C & D Logging’s November 20, 2007, petition for a writ of mandamus is not necessarily, by itself, determinative of the issue whether the petition was filed within a reasonable time under Rule 21(a)(3), Ala. R.App. P. However, it is the determination of whether there has been such a delay “ivithout more ” that the factors listed in the Committee Comments to Rule 21 address; therefore, we examine those factors.

C & D Logging also repeatedly argued that it should have been afforded a hearing on the second motion to compel in order to defend its initial panel of four or that it should have been afforded a hearing on its motion to reconsider; those issues, however, pertain to the merits of the petition for a writ of mandamus and not to the reasons for the delay in filing the petition. Further, C & D Logging did not explain how it had been prejudiced by the trial court’s failure to conduct such a hearing; it does not argue how the composition of the panel has affected it rights and liabilities, e.g., that the panel’s composition has affected its ability to defend the action or altered its potential liability for the ordered treatment. Further, C & D Logging acknowledged in its petition for a writ of mandamus that it elected to seek relief from the March 29, 2007, order in the trial court rather than in this court.

Even assuming that the trial court’s failure to conduct a hearing before entering its ruling did prejudice C & D Logging, that prejudice must be considered in conjunction with other factors set forth in the Committee Comments to Rule 21, one of which is the prejudice the delay has on Mobley. C & D Logging stated in its brief in case number 2070159 that Mobley has not been prejudiced by the delay in its filing of its petition for a writ of mandamus from the trial court’s March 29, 2007, order. Mobley disagrees, asserting in his brief submitted in case number 2070198 that he has not had an authorized treating physician since January 2007, when he became dissatisfied with his original physician, who he alleged he was seeing for management of his pain. Mobley also contends that since January 2007 he has had to pay for his own pain-management treatment. Certain findings contained in the trial court’s October 19, 2007, order support those allegations. That order states that C & D Logging failed to authorize or pay for Mobley’s treatment by a pain-management doctor even after the entry of the March 29, 2007, order and that Mobley had independently sought medical treatment from his personal physician and another medical group “for depression caused by chronic pain.”

During the time that C & D Logging delayed filing its petition contesting the trial court’s March 29, 2007, order regarding the composition of the panel of four, Mobley has been forced to independently seek, obtain, and presumably pay for his pain-management treatment since January 2007. Thus, we are not persuaded by C & D Logging’s argument that its seeking review of the March 29, 2007, order through its November 20, 2007, petition for a writ of mandamus did not result in prejudice to Mobley. In addition, it is clear that other proceedings, specifically those that are the subject of case number 2070198, are pending before this court, which is another factor to consider in determining whether good cause exists for allowing an untimely mandamus petition. As discussed below, C & D Logging has an opportunity for review by appeal.

Given the foregoing, we disagree with C & D Logging’s argument that it had set forth a persuasive statement of good cause for the untimely filing of its petition for a writ of mandamus in case number 2070159. C & D Logging’s application for rehearing in case number 2070159 reiterates its original arguments with regard to the issue of the timeliness of the petition in case number 2070159. Accordingly, C & D Logging has not persuaded this court that it erred in denying the petition for a writ of mandamus in case number 2070159, and we overrule the application for rehearing.

2070198 — Appeal and Petition for a Writ of Mandamus

We next turn to the appeal in case number 2070198, which challenges the propriety of several aspects of the trial court’s October 19, 2007, order, including the trial court’s determination of liability and a number of evidentiary issues; C & D Logging also challenges what it claims is the trial court’s affirmation of its March 29, 2007, order granting Mobley’s second motion to compel. As explained below, we conclude that the October 19, 2007, order was not a final judgment capable of supporting an appeal.

In Williams Power, Inc. v. Johnson, 880 So.2d 459 (Ala.Civ.App.2003), the trial court determined that the worker had suffered a 65% disability as a result of an on-the-job accident, and it awarded benefits based upon that determination. In addition, the trial court stated that the employer should reimburse the worker for past medical expenses; however, the trial court did not specify the amount of past medical expenses to be reimbursed. This court held that the failure to specify a sum certain for the past medical expenses rendered the trial court’s order nonfinal. In so holding, this court explained:

“ ‘It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts.’
“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977) (‘Where the amount of damages js an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.’).”

Williams Power, Inc. v. Johnson, 880 So.2d at 461. See also Ex parte Baptist Health Sys., Inc., 966 So.2d 920, 923 (Ala.2007) (“Because the trial court in this case has not specified the amount of damages to be awarded ... for past medical expenses, the trial court has not rendered a final judgment that will support an appeal.”); Coosa Valley Health Care v. Johnson, 961 So.2d 903 (Ala.Civ.App.2007) (an order that, among other things, failed to ascertain specific awards for temporary-disability benefits or for reimbursement of previous medical expenses was nonfinal); and Goldome Credit Corp. v. Player, 869 So.2d 1146 (Ala.Civ.App.2003) (holding nonfinal an order in which the trial court awarded an attorney fee but failed to ascertain the amount of the attorney-fee award).

In its October 19, 2007, order, the trial court determined that C & D Logging was liable for the payment of workers’ compensation benefits for Mobley’s on-the-job injury and that Mobley was permanently and totally disabled as a result of that injury. However, the order did not contain any provisions specifying the amount of workers’ compensation benefits to which Mobley was entitled. Further, in its October 19, 2007, order, the trial court stated that “all past due indemnity benefits and medical benefits are due to be reimbursed and future benefits are to be paid in accordance with” the provisions of the Act; however, it did not make a specific, sum-certain award for those benefits.

The October 19, 2007, order does not contain a determination or calculation of the specific amount of workers’ compensation benefits to be awarded to Mobley. Accordingly, we must conclude that the October 19, 2007, order was not a final judgment that will support an appeal. Williams Power, Inc. v. Johnson, 880 So.2d at 461 (citing Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.1998)). Therefore, the appeal is due to be dismissed.

As an alternative to its notice of appeal, C & D Logging sought review in this court of the October 19, 2007, order pursuant to a petition for a writ of mandamus. “This court has exercised its jurisdiction to issue writs of mandamus in workers’ compensation actions mainly in cases in which the trial court has entered an order wholly without statutory authority or in direct contravention of the language of the Act.” Ex parte Publix SuperMarkets, Inc., 963 So.2d 654, 657-58 (Ala.Civ.App.2007). Review by mandamus is not appropriate when a party has another adequate remedy, such as an appeal. Ex parte Amerigas, 855 So.2d 544, 546 (Ala.Civ.App.2003). Our supreme court has explained the law regarding when review by mandamus is appropriate as follows:

“ ‘The rules of law applicable to the case are simple and well settled. The writ of mandamus will lie from a superior to an inferior or subordinate court, in a proper case, to compel it to hear and decide a controversy of which it has jurisdiction; or, where the cause has been heard, to compel such inferior court to render judgment or enter a decree in the given case. But its use is not warranted to direct what particular judgment shall be rendered in a pending cause, nor is it the proper function of such remedial writ to re-examine, or correct errors in any judgment or decree so rendered. “The rule applies to judicial as well as to ministerial acts, but it does not apply at all to a judicial act to correct an error, as where the act has been erroneously performed. If the duty is unperformed, and it be judicial in its character, the mandate will be to the judge directing him to exercise his judicial discretion or judgment, without any direction as to the manner in which it shall be done; or if it be ministerial, the mandamus will direct the specific act to be performed.” — Ex parte Newman, [81] U.S. 152, 14 Wall. 152, 169, 20 L.Ed. 877 [ (1871) ]; High on Extr. Rem. §§ 150-152, 266; Ex parte Schmidt, 62 Ala. 252 [ (1878) ]; Ex parte Mahone, 30 Ala. 49 [ (1857) ]. The principle, of course, universally prevails, that in no event will the writ ever be awarded wherefull and adequate relief can be had by appeal, writ of error, or otherwise.’ ”

State v. Cobb, 288 Ala. 675, 678, 264 So.2d 523, 526 (1972) (quoting State v. Williams, 69 Ala. 311, 316 (1881)).

In this case, the issues C & D Logging raises with regard to the October 19, 2007, order pertain to the propriety of the trial court’s determinations based on the evidence and to certain evidentiary issues. Thus, C & D Logging challenges the merits of the October 19, 2007, order. However, review by mandamus may not be used to correct errors in an order or judgment, i.e., to say what a particular order or judgment must be. See State v. Cobb, supra. A petition for a writ of mandamus may not be used as a substitute for an appeal. Ex parte Publix Super Markets, Inc., 963 So.2d at 658; Ex parte Amerigas, 855 So.2d at 547. Accordingly, because C & D Logging has an adequate remedy through appeal, when the final judgment is entered, we deny the petition for a writ of mandamus in case number 2070198. Ex parte Trinity Auto. Servs., Ltd., 974 So.2d 1005, 1009 (Ala.Civ.App.2006).

2070159 — APPLICATION FOR REHEARING OVERRULED.

2070198 — APPEAL DISMISSED; PETITION DENIED.

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

MOORE, J., recuses himself.

      . In its April 13, 2007, motion to reconsider, C & D Logging characterized Mobley's second motion to compel as specifically requesting that Dr. Yearwood and Dr. Couch be listed on the panel of four under § 25-5-77(a), and it characterized the trial court’s order of March 29, 2007, as requiring treatment by one of those two doctors. No document or ruling pertaining to the motion to reconsider was issued before the final hearing in this matter. However, the trial court's October 19, 2007, order (from which the appeal and petition filed in case number 2070198 are taken) states that the trial court "ordered treatment by either Dr. Patrick Couch, a Mobile physician, or Dr. Thomas Yearwood, a physician in Daphne just across the Mobile Delta, who both specialize in pain management.”

        . In addition to the other issues raised in case number 2070198, C & D Logging argues that the trial court erred in denying its motion for a summary judgment. However, the denial of a summary-judgment motion is not an appeal-able order. Our supreme court has explained:
      "[T]his Court will not entertain the attempted appeal of a denial of a motion for a summary judgment. See Continental Cas. Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala.2006) (‘Although we will review on the merits the summary judgment for [the appellee], we cannot entertain [the appellant's] attempted appeal of the denial of its own motion for a summary judgment. " ‘Such an order is inherently non-final and cannot be made final by a Rule 54(b)[, Ala. R. Civ. P.,] certification_An order denying summary judgment is interlocutory and nonappealable.’" Fahey v. C.A.T.V. Subscriber Servs., Inc., 568 So.2d 1219, 1222 (Ala.1990) (quoting Parsons Steel, Inc. v. Beasley, 522 So.2d 253, 257-58 (Ala.1988)).').”

        Little Narrows, LLC v. Scott, 1 So.3d 973, 976 n. 3 (Ala.2008).


author: PER CURIAM.

text:
    Jason Daniel SERIO v. Kandace L. SERIO et al.
    2070105.
    Court of Civil Appeals of Alabama.
    Aug. 29, 2008.
    Denise J. Pomeroy of Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, for appellant.
    Roger C. Appell, Birmingham, for appel-lee Kandace L. Serio.
    Julie Kimbrough, Birmingham, for ap-pellees Harold Donald and Merrill Donald.
   PER CURIAM.

Jason Daniel Serio (“the father”) appeals from a judgment of the Shelby Circuit Court awarding Harold L. Donald and Merrill R. Donald (collectively “the maternal grandparents”) custody of A.B. (“the child”), who was born to the father and Kandace L. Serio (“the mother”).

Following the child’s birth, the mother and the father were married on July 18, 2005. However, the father filed a complaint on February 21, 2006, with the trial court seeking a divorce from the mother. During the pendency of that divorce proceeding, the father filed a motion for an ex parte hearing regarding pendente lite custody of the child, alleging in part that the mother and the maternal grandparents had refused the father custody of the child, that the mother had alternated between residing with her boyfriend and the maternal grandparents, and that the mother had failed numerous tests for illegal drugs. The father was awarded pendente lite custody of the child.

The maternal grandparents filed a motion to intervene in the divorce proceeding, which the trial court granted; the maternal grandparents filed a motion to set aside the pendente lite custody order and sought permanent custody of the child. The mother was incarcerated at the time of trial; after an ore tenus hearing, the trial court entered a judgment divorcing the mother and the father, awarding the maternal grandparents sole physical and legal custody of the child, and awarding the mother and the father supervised visitation with the child. The judgment, however, failed to make an express determination that the father was unfit to be awarded custody of the child. The judgment further ordered the father to pay $711 in monthly child support to the maternal grandparents and to maintain medical-insurance coverage on the child. The father filed a motion to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R.App. P.; however, that motion was denied by operation of law because it was not ruled upon within 90 days. See Rule 59.1, Ala. R. Civ. P.

The father timely appealed to this court, arguing that the evidence did not support the trial court’s judgment awarding custody of the child to the maternal grandparents, that the trial court failed to make an express finding of unfitness in its judgment, and that the record did not contain the required Form CS-42. The record does not include a transcript of the ore tenus hearing; instead, a statement of the evidence prepared pursuant to Rule 10(d), Ala. R.App. P., which provides for the preparation and submission of a statement of the evidence when a trial transcript is “unavailable,” was approved by the trial court and included in the record on appeal.

The substantive principles that govern resolution of a request by a non-parent for custody of a child as against a natural parent are well settled. The child’s parent has a prima facie right to custody of that child as against a nonparent. Ex parte Mathews, 428 So.2d 58 (Ala.1983). Overcoming that presumptive superior right of a parent to a child requires the nonparent to present clear and convincing evidence demonstrating that the parent is unfit or unsuited for custody and that the best interests of the child will be served by awarding custody to the non-parent rather than the parent. Ex parte Terry, 494 So.2d 628, 632 (Ala.1986).

The father’s appellate brief correctly notes that the trial court did not make an express determination that the father was unfit or refer to the standard set out in Ex parte Terry, 494 So.2d at 632, in its judgment. This court has held that “when a trial court awards custody to a nonpar-ent in a contest with a parent, the trial court must make an express finding of unfitness.” Lawrence v. Cannon, 998 So.2d 1070, 1072 (Ala.Civ.App.2008) (citing C.P. v. W.M., 806 So.2d 395, 398 (Ala.Civ.App.2001)). The trial court’s judgment is, therefore, reversed based on the trial court’s failure to make an express determination of unfitness pursuant to Ex parte Terry and its progeny. The cause is remanded for further proceedings.

REVERSED AND REMANDED.

All the judges concur.

      . Rule 32(E), Ala. R. Jud. Admin., mandates the filing of both “Child Support Obligation Income Statement/Affidavit’' forms (Form CS-41) and a "Child Support Guidelines” form (Form CS-42).

      . The term "unavailable” in Rule 10(d), Ala. R.App. P., pertains to situations in which the court reporter is unable to transcribe the evidence, as in cases when, for example, the court reporter may be deceased; the rule does not include situations when the appellant simply decides not to pay for a transcript (even if the reason is that he or she cannot afford to pay). See Quick v. Burton, 960 So.2d 678, 680 (Ala.Civ.App.2006).


author: McMILLAN, Judge. BASCHAB, Presiding Judge, WELCH, Judge,

text:
    Ralph Wilson LINGO v. STATE of Alabama.
    CR-06-1633.
    Court of Criminal Appeals of Alabama.
    April 25, 2008.
    Rehearing Denied May 23, 2008.
    Certiorari Denied Aug. 8, 2008 Alabama Supreme Court 1071217.
    Thomas K. Brantley, Jr., Dothan, for appellant.
    Troy King, atty. gen., and John-Paul M. Chappell, asst. atty. gen., for appellee.
   McMILLAN, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, J., concurs.

SHAW, J., concurs in the result.

BASCHAB, P.J., and WELCH, J., dissent, with opinions.

BASCHAB, Presiding Judge,

dissenting.

I must respectfully dissent. The record in this case does not indicate that the trial court ever advised the appellant about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and did not advise him that he had the right to withdraw any waiver of the right to counsel at any time during the proceedings, as required by Rule 6.1(b), Ala. R.Crim. P. Therefore, we should reverse the trial court’s judgment and remand this case for a new trial. See Farid v. State, 720 So.2d 998 (Ala.Crim.App.1998); Hairgrove v. State, 680 So.2d 946 (Ala.Crim.App.1995).

WELCH, Judge,

dissenting.

I respectfully dissent from the unpublished memorandum affirming the trial court’s denial of Ralph Wilson Lingo’s motion to withdraw his guilty plea.

Lingo pleaded guilty to and was convicted of two counts of second-degree receiving stolen property, violations of § 13A-8-18, Ala.Code 1975. In addition to the appropriate fines, he was sentenced as a habitual offender to 10 years’ imprisonment for each conviction. These sentences were to be served concurrently with a sentence Lingo was serving as the result of a prior criminal conviction in Barbour County.

Lingo filed a motion to withdraw his guilty plea on the grounds that the plea agreement he had reached with the State provided that his sentences would “coter-minate” with his Barbour County conviction, rather than run merely concurrently with that conviction. In other words, according to Lingo, it was his understanding that when his Barbour County sentence was completed, his Henry County sentences would also be completed. The trial court denied Lingo’s motion, stating on the case-action summary sheet: “Motion to withdraw plea denied. Coterminous is not a sentence ... in this circuit, although sentence is running concurrent with a Barbour County case.” (CR.14.)

Lingo contends on appeal that the trial court abused its discretion in denying his motion to withdraw his guilty plea based on the grounds set forth in his motion. The record reflects that Lingo was informed, and that he acknowledged that he understood, that his sentences could only be served concurrently. Thus, the unpublished memorandum concludes that the trial court did not abuse its discretion in denying Lingo’s motion to withdraw his guilty plea. In support it its holding, the memorandum cites Bland v. State, 565 So.2d 1240, 1242-43 (Ala.Crim.App.1990)(“The fact that a defendant who has knowingly and intelligently pleaded guilty later becomes dissatisfied with the sentence he received does not, alone, constitute a ground for invalidating the guilty plea.”), and State v. Holman, 486 So.2d 500, 503 (Ala.1986)(The mere hope for a specific sentence, unsupported by any promise from the State or indications by the trial court, is not sufficient to warrant setting aside a guilty plea as unknowingly or involuntarily made.).

I disagree with the majority’s affirmance of the decision of the trial court. The guilty-plea colloquy discloses that Lingo continued to refer to his sentences as “coterminous” after the trial court informed him, and he claimed to understand, that his sentences would be concurrent. The record further reflects that at the plea proceedings Lingo was 45 years old, indigent, unable to read or write, and without counsel. He was also without counsel at sentencing. The record is silent as to whether Lingo had waived his right to counsel.

“In order to conduct his own defense, the defendant must ‘knowingly’ and ‘intelligently’ waive his right to counsel .... ” Tomlin v. State, 601 So.2d 124, 128 (Ala.1991)(quoting Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). “[W]e cannot assume [that a waiver of counsel was intelligently and understandingly made] from a silent record ....” Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Crim.App.1980) (citing Boyd v. Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972)); see also Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)(“Presuming waiver from a silent record is impermissible.”).

“The Sixth Amendment right to counsel does not depend upon a request by the accused. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). If an accused waives his right to counsel, that waiver must be intelligently and understandingly made and cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). In Carnley the Supreme Court stated, at 513 and 516, 82 S.Ct. at 889 and 890:
“ ‘But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. ...
“ ‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’
“See also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).”

Lake v. City of Birmingham, 390 So.2d at 38. See cases citing Lake: Murray v. State, 875 So.2d 1236, 1238 (Ala.Crim.App.2003) (opinion on return to remand) (quoting Lake, 390 So.2d at 37) (Waiver of counsel “ ‘cannot be presumed from a silent record.’”); Coughlin v. State, 842 So.2d 30, 33 (Ala.Crim.App.2002)(“ ‘[A] record failing to reveal any of the circumstances surrounding the appellant’s self-representation ‘will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty.’ ”) (quoting Pratt v. State, 851 So.2d 142, 145 (Ala.Crim.App.2002)).

Like the record in Lake, the instant record “reveals none of the circumstances surrounding [Lingo’s] self-representation. Such a record, under the above-cited cases, will not support the trial court’s judgment ...." 390 So.2d at 38.

Therefore, because nothing in the record indicates that Lingo knowingly, understandingly, and voluntarily waived his right to counsel, I would remand this case for the circuit court to determine whether Lingo made a knowing, intelligent, and voluntary waiver of his right to counsel. Therefore, I dissent.

      . The complete order is not legible.


text:
    Mario Dion WOODWARD v. STATE of Alabama.
    CR-06-0357.
    Court of Criminal Appeals of Alabama.
    Aug. 1, 2008.

      Joseph P. Van Heest, Montgomery, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   PER CURIAM.

Mario Dion Woodward appeals the trial court’s revocation of his probation.

Woodward presents three arguments on appeal; however, because of our disposition of this case, we need address only one. Woodward argues that the trial court lacked jurisdiction to revoke his probation on October 20, 2006, because, he says, he had been discharged from probation by order of the trial court on July 26, 2006. We must agree.

The record reflects that on June 10, 1999, Woodward pleaded guilty to possession of marijuana in the first degree. On June 25, 1999, he was sentenced to 12 years’ imprisonment, and on June 28,1999, the trial court suspended the sentence, and placed Woodward on three years’ probation. On July 28, 1999, the trial court amended the probationary period to five years. On November 25, 2003, Woodward’s probation officer filed a delinquency report alleging that Woodward had violated the terms and conditions of his probation by failing to report to his probation officer; failing to notify his probation officer of a change of address; failing to pay supervision fees; and failing to pay court-ordered moneys. On December 10, 2003, the trial court declared Woodward delinquent and ordered Woodward arrested. The notation indicating this action was mistakenly placed on the case-action-summary sheet for a Rule 32, Ala.R.Crim.P., petition for postconviction relief Woodward had filed challenging his conviction (case no. CC-98-2170.60). On December 15, 2003, a capias warrant was issued for Woodward’s arrest. The notation indicating this action was placed on the case-action-summary sheet for Woodward’s original conviction (case no. CC-98-2170) and specifically referenced “page 2” of the case-action-summary sheet for the Rule 32 petition. (C. 1.) On July 26, 2006, the trial court signed a document entitled “State of Alabama Probation and Parole Office Interoffice Communication” in which it approved Woodward’s probation officer’s request that Woodward be discharged from probation effective July 26, 2006. The State does not dispute that this action by the trial court formally discharged Woodward from probation and terminated Woodward’s probationary term effective July 26, 2006.

On September 28, 2006, Montgomery Police Officer Keith Houts was shot. On September 29, 2006, Woodward was arrested in Georgia on a fugitive warrant relating to the shooting of Officer Houts. On September 30, 2006, Woodward waived extradition and was returned to Alabama; that same day, Officer Houts died as a result of his gunshot wounds. Also that same day, the capias warrant previously issued on December 15, 2003, for Woodward’s alleged violation was served on Woodward. On October 6, 2006, Woodward appeared in court for an initial appearance under Rule 27.5, Ala.R.Crim.P. On October 12, 2006, the State filed a “Motion to Correct Clerical Mistake,” in which it averred that the July 26, 2006, order discharging Woodward from probation at the request of Woodward’s probation officer had been based on mistaken information provided by the probation officer, specifically, information that Woodward had completed his probationary term (which he had not) and had been on probation for over five years (which he had not); that a clerical mistake had occurred when the trial court’s declaration of Woodward as delinquent on December 10, 2003, had been entered on the case-action-summary sheet for Woodward’s Rule 32 petition and not on the case-action-summary sheet for Woodward’s conviction; that, consequently, a review of the case-action-summary sheet for Woodward’s conviction would not have revealed that his probationary term had been tolled in December 2003; and that “Rule 29 of the Alabama Rules of Criminal Procedure authorizes the Court to correct such clerical mistakes.” (C. 4.) On October 18, 2006, the trial court issued an “Order to Correct Clerical Mistake,” in which it stated that Woodward’s probation had been tolled in December 2003; that Woodward had not completed his probationary term; that Woodward had not been on probation more than five years; that the information contained in the probation officer’s request for Woodward’s probation to be terminated was incorrect “as a result of a clerical mistake”; and that Rule 29, Ala.R.Crim.P., authorizes a court to correct clerical mistakes. The court then rescinded its July 26, 2006, order discharging Woodward from probation. On October 20, 2006, a probation-revocation hearing was conducted, after which the trial court revoked Woodward’s probation.

We begin by noting that a probationary period does not end until: (1) the probationer satisfactorily fulfills all the conditions of probation and the actual probationary term ordered by the court expires, see § 15-22-54(a), Ala.Code 1975 (“When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant.”), and Rule 27.3(c), Ala.R.Crim.P. (“Probation automatically terminates upon successful completion of the term of probation set by the court”); (2) if the probationer has not satisfactorily fulfilled all the conditions of probation, the maximum period of probation allowed by law expires, see § 15-22-54(a), Ala.Code 1975 (“in no case shall ... the maximum probation period of a defendant guilty of a felony exceed five years”); or (3) the probationer is formally discharged from probation by the court, see § 15-22-54(b), Ala.Code 1975 (“The court granting probation may, upon the recommendation of the officer supervising the probationer, terminate all authority and supervision over the probationer prior to the declared date of completion of probation upon showing a continued satisfactory compliance with the conditions of probation over a sufficient portion of the period of probation.”), and Rule 27.3(b), Ala.R.Crim.P. (“At any time during a term of probation, the sentencing court may terminate probation and discharge the probationer absolutely, after notice to the prosecutor. Early termination may result from a motion of the probationer or the probation officer, or on the initiative of the court.”). See also G.L.C. v. State, 910 So.2d 163 (Ala.Crim.App.2005); Owens v. State, 728 So.2d 673 (Ala.Crim.App.1998); Sherer v. State, 486 So.2d 1330 (Ala.Crim.App.1986); Watkins v. State, 455 So.2d 160 (Ala.Crim.App.1984); and Hamilton v. State, 441 So.2d 1035 (Ala.Crim.App.1983). Initiation of proceedings to revoke probation, such as the issuance of an arrest warrant or the filing of a delinquency report by a probation officer, see Young v. State, 552 So.2d 879 (Ala.Crim.App.1989), tolls the running of the probationary term if the process is begun before the probationary term ends, see Owens, supra, and a trial court retains jurisdiction to revoke probation even after the probationary period has expired so long as the revocation proceedings were initiated within the maximum probationary term, see Sherer, supra, and Watkins, supra.

In this case, revocation proceedings were initiated in December 2003, within the five-year probationary period, and this action tolled the running of Woodward’s probationary period, as the State correctly asserts in its brief. However, it is undisputed that, after tolling Woodward’s probationary term, the court formally discharged Woodward from probation on July 26, 2006, thus ending Woodward’s probationary term. The only question, then, is whether the trial court had the authority nearly three months later, on October 18, 2006, to rescind its July 26, 2006, order discharging Woodward from probation.

Generally, a trial court retains jurisdiction to modify a judgment for only 30 days after that judgment is entered. See, e.g., Loggins v. State, 910 So.2d 146 (Ala.Crim.App.2005), and Ex parte Bishop, 883 So.2d 262 (Ala.Crim.App.2003). This general rule applies in the context of probation. See, e.g., Davis v. State, 644 So.2d 44 (Ala.Crim.App.1994). However, Rule 29, Ala.R.Crim.P., on which the trial court relied in rescinding its July 26, 2006, order, provides:

“Clerical mistakes in judgments, orders, or other parts of the record, and errors arising from oversight or omission may be corrected by the court at anytime of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court. Whenever necessary, a transcript of the record as corrected may be certified to the appellate court in response to a writ of certiorari or like writ, in conformity with Rule 10(f), A.R.App.P.”

The Committee Comments to this rule provide, in pertinent part:

“Rule 29 is taken directly from Rule 60(a), [Ala.]R.Civ.P.... While the rule is intended to deal solely with correction of clerical errors and not judicial errors in the rendition of judgments and orders, evidence outside the record that was previously excluded from consideration may be received and considered. Also the rule, unlike the statute, [Title 7, §§ 556-570, Code of Alabama 1940, which was not recodified in the 1975 Code] does not have an outside time limitation, and clerical errors can be corrected under the rule even after an appeal has been completed.”

“Because Rule 29 is taken directly from Rule 60(a), Ala.R.Civ.P., cases construing Rule 60(a) should be examined to determine the proper construction to be placed on Rule 29.” Dollar v. State, 687 So.2d 209, 210 (Ala.1996).

In Ex parte Brown, 963 So.2d 604 (Ala.2007), the trial court issued an order in a divorce case awarding custody of the minor child to the mother and ordering the father to pay child support. The father filed an untimely motion to alter, amend, or vacate the judgment. Over two months after its initial order, the trial court amended its order to award custody of the minor child to the father and to order the mother to pay child support. The mother petitioned the Alabama Court of Civil Appeals for a writ of mandamus, arguing that because the father’s motion to alter, amend, or vacate was untimely, the trial court lacked jurisdiction to modify its original order. While the case was pending on appeal, the trial court issued a third order, in which it stated that its first order— awarding custody of the minor child to the mother and ordering the father to pay child support — had been issued in error; that its intention in issuing the first order had been to award custody of the minor child to the father and to order the mother to pay child support; that it was uncertain as to how or why the parties had been reversed in the order; and that its second order was only a correction of the clerical mistake reversing the parties in the first order. The Court of Civil Appeals granted the writ. The father then petitioned the Alabama Supreme Court for a writ of mandamus, arguing that the trial court’s second order was merely a correction of a clerical mistake under Rule 60(a), Ala.R.Civ.P. The Supreme Court agreed, explaining:

“In Higgins v. Higgins, 952 So.2d 1144, 1147-48 (Ala.Civ.App.2006), the Court of Civil Appeals provided an instructive discussion of the scope of a trial court’s authority to correct a clerical mistake, stating:
“ ‘ “The object of a Rule 60(a)[, Ala.R.Civ.P.,] motion or a judgment nunc pro tunc is to make the judgment or the record speak the truth. Under Rule 60(a) a correction may be made by the trial court at any time.
“ ‘ “The trial court’s authority to enter a Rule 60(a) order or a judgment nunc pro tunc is not unbridled. It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a) and should properly be effected under Rule 59(e) or Rule 60(b)[, Ala.R.Civ.P.][]”
‘McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995) (citations omitted).
“ ‘Chief Justice Torbert explained the proper application of Rule 60(a) in his special concurrence in Ex parte Continental Oil Co., 370 So.2d 953, 955-56 (Ala.1979):
“ ‘ “Although there is no precise delineation in the cases construing Rule 60(a) of the [Alabama Rules of Civil Procedure] or its federal counterpart as to what constitutes a ‘clerical mistake or error arising from oversight or omission,’ generally it can be said that the rule allows the correction of errors of a ministerial nature in order to reflect what was actually intended at the time of entry of the order. The rule contemplates the type of error associated with mistakes in transcription, alteration, or omission of any papers and documents — a mistake mechanical in nature which does not involve a legal decision or judgment. In re Merry Queen Transfer Corp., 266 F.Supp. 605 (E.D.N.Y.1967). In this respect it has been stated that:
“ ‘ “ ‘Rule 60(a) is concerned primarily with mistakes which do not really attack the party’s fundamental right to the judgment at the time it was entered. It permits the correction of irregularities which becloud but do not impugn it. To that end 60(a) permits, inter alia, reasonable additions to the record. In contrast, Rule 60(b) is concerned with changing a final judgment, etc. In such a case the moving party understandably shoulders a much heavier burden.’
“ ‘ “United States v. Stuart, 392 F.2d 60, 62 (3rd Cir.1968). Corrections involving an exercise of judicial discretion or judgment modifying or enlarging a judgment or order are beyond the purview of Rule 60(a) and should properly be effected under Rule 59(e) or 60(b). ‘Thus a motion under Rule 60(a) can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ Wright & Miller & Kane, Federal Practice & Procedure § 2854, at 149 (1973). This court has stated:
“ ‘ “ ‘The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to comet judicial errors, such as to render a judgment ivhieh the count ought to have rendered, in the place of the one it did erroneously render, nor to supply non-action by the court, however erroneous the judgment may have been.'
“ ‘ “Wilmerding v. The Corbin Banking Co., 126 Ala. 268, 273, 28 So. 640, 641 (1900).
“ ‘ “Since a correction pursuant to Rule 60(a) may be made at any time and on the trial court’s initiative, the rule should be cautiously applied to preserve the integrity of final judgments. Otherwise, the finality of a judgment would only be illusory since the possibility would exist of substitution of a new judgment for the original one at a later date. Therefore, it is essential that there be something in the record from which the mistake or error to be corrected may be gleaned. See Ex parte ACK Radio Supply of Georgia, 283 Ala. 630, 219 So.2d 880 (1969); Busby v. Pierson, 272 Ala. 59, 128 So.2d 516 (1961); Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947). Stated differently, the fact of mistake or error must be supported by the record of the proceedings. See Harris v. Harris, 256 Ala. 192, 54 So.2d 291 (1951).” ’
“In Deramus Hearing Aid Center, Inc. v. American Hearing Aid Associates, 950 So.2d 292 (Ala.2006), this Court addressed the issue whether a trial court had the authority to correct a clerical error in its written order entering a summary judgment for the wrong party. In its corrected order, issued over two months after the original order, the trial court stated that it had inadvertently entered a summary judgment in favor of Deramus Hearing and that the record of the summary-judgment hearing would support its original intent to enter a summary judgment for American Hearing. Deramus Hearing appealed, arguing that the amended order contained corrections that were not clerical in nature and, consequently, that Rule 60(a), Ala.R.Civ.P., did not authorize the trial court to make such a substantive change in the order. This Court held that Rule 60(a), Ala.R.Civ.P., was broad enough to authorize the trial court to correct such an inadvertent error because the correction did not involve a reweighing of the evidence or reflect a change of mind regarding the decision. The Court noted that the trial court stated that the record would establish that the original order had improperly entered a summary judgment for Deramus Hearing because the record clearly established the intent of the trial court to enter a summary judgment for American Hearing. This Court, recognizing that the corrected order made the record speak the truth, held that the trial court did have the authority to set aside its original order entering a summary judgment for Deramus Hearing and issue a new order entering a summary judgment for American Hearing.
“Like the materials before us in Deramus Hearing, the materials in this case clearly establish that the trial court, when it issued the June 29, 2006, order, was correcting a scrivener’s error in its April 18, 2006, order, making the record speak the truth. The fact that the April 18, 2006, order awarded custody of a child designated as ‘Haley’ to the mother evidences that that order contained clerical errors. Additionally, the trial court’s amended order indicates that the corrections did not involve a reweighing of the evidence, a change of mind, or the rendering of a ‘different’ judgment. The trial court’s changes here involved corrections to make the record speak the truth. Because the trial court’s corrections did not involve judicial reasoning or the rendering of a ‘different’ judgment, the trial court, pursuant to Rule 60(a), Ala.R.Civ.P., had the authority to correct and was thereby acting within its discretion in correcting the mechanical errors in its April 18, 2006, order by issuing the June 29, 2006, order. As we stated in Deramus Hearing, ‘[a] contrary conclusion would require this Court to call into question the veracity of the trial court by contradicting the trial court’s express disavowal of any such intention. This we decline to do.’ 950 So.2d at 295. Therefore, the Court of Civil Appeals erred when it ordered the trial court to vacate its June 29, 2006, order and to reinstate the April 18, 2006, order.”

963 So.2d at 607-09 (footnote omitted; some emphasis added).

In Pierce v. American General Finance, Inc., 991 So.2d 212 (Ala.2008), American General filed an ejectment action against Pierce. In response, Pierce filed a motion to dismiss or to stay the proceedings, alleging that he had filed a petition for bankruptcy and that the bankruptcy case was still pending. The trial court then issued an order stating that American General’s action would be dismissed without prejudice unless it obtained leave from the bankruptcy court to prosecute its claims. American General then notified the court that Pierce’s bankruptcy case had been dismissed, and the court set a trial date. However, some two months before the trial date, the trial court issued an order dismissing the action on the ground that American General had not complied with its order that it obtain leave from the bankruptcy court to prosecute its claims, even though American General had complied with the order and notified the court of the dismissal of the bankruptcy case. Subsequent to the order dismissing the case, the trial court set another trial date. Following the trial, the trial court entered a judgment in favor of American General. On appeal, Pierce argued that the trial court’s judgment in favor of American General was void because the court had previously entered a judgment of dismissal. After finding no basis in Rule 59, Ala.R.Civ.P., justifying the trial court’s judgment in favor of American General, the Alabama Supreme Court held that Rule 60(a), Ala.R.Civ.P., did not authorize the trial court to set aside its original dismissal more than 30 days after the dismissal had been entered. The Court explained:

“The Committee Comments on 1973 Adoption of Rule 60(a) explain that the rule
“ ‘deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus, the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’
“Even if we were to assume that the circuit court’s orders following its dismissal of the case constituted an invocation of Rule 60(a), despite the absence of any order referencing that rule, any error in the entry of the judgment dismissing the case was not the kind of mistake ‘associated with mistakes in transcription, alteration, or omission of any papers and documents’ that can be corrected pursuant to Rule 60(a). For this Court to hold otherwise would allow Rule 60(a) to be used ‘to supply non-action by the court’ in the place of its action and to make its judgment ‘say something other than what was originally announced.’ This is not the function of Rule 60(a).”

991 So.2d at 216-17. See also Ex parte P & H Constr. Co., 723 So.2d 45 (Ala.1998) (noting a trial court’s setting aside of an earlier summary judgment does not constitute a clerical mistake under Rule 60(a), Ala.R.Civ.P.), and Crowson v. Woolard Bros., 879 So.2d 1203 (Ala.Civ.App.2003) (holding that a trial court’s amendment to a previous order finding plaintiff permanently and totally disabled as a result of work-related injuries to find that plaintiff suffered only a 98% vocational disability was a substantive change in judgment not authorized by Rule 60(a), Ala.R.Civ.P.).

Whether an amendment to a judgment is considered a correction of a clerical error authorized by Rule 60(a), Ala.R.Civ.P., or Rule 29, Ala.R.Crim.P., is determined by the trial court’s intent at the time it issued the original judgment. “When the intent of the trial court is clear, Rule 60(a), Ala.R.Civ.P., gives the trial court the necessary power to correct clerical mistakes in a judgment so that the judgment reflects what was intended to be done.” Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 828 (Ala.Civ.App.1997). However, “while [Rule 60(a), Ala.R.Civ.P.,] authorizes a court to amend a judgment to correct a clerical error, [it] does not authorize the court to render a different judgment.” Mullins v. Mullins, 770 So.2d 624, 625 (Ala.Civ.App.2000). “Although Rule 60(a) states that a court may correct a clerical mistake or an error arising from oversight or omission ‘at any time,’ this does not authorize a second review of a judgment.” Cornelius v. Green, 521 So.2d 942, 945 (Ala.1988). “If the mistake involves an exercise of judicial discretion, any correction is beyond the scope of Rule 60(a).” McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995).

In this case, the trial court’s October 18, 2006, order rescinding its July 26, 2006, order discharging Woodward from probation clearly involved judicial discretion and the rendering of a different judgment and was, thus, not authorized by Rule 29, Ala.R.Crim.P. The October 18, 2006, order did not merely correct a clerical mistake in the previous July 26, 2006, order discharging Woodward from probation, but rescinded that order altogether. Moreover, there is nothing in the record that indicates, as was the case in Ex parte Brown, supra, that the trial court did not intend to discharge Woodward from probation when it signed the order on July 26, 2006. In its October 18, 2006, order, the trial court merely stated that its July 26, 2006, order had been issued based on incorrect information that had resulted from a clerical mistake; however, it did not state that it had not intended to discharge Woodward from probation when it signed the July 26, 2006, order.

In addition, although “evidence outside the record that was previously excluded from consideration may be received and considered” by the court in correcting a clerical mistake under Rule 29, there was no evidence presented here that was “excluded from consideration” when the trial court issued its July 26, 2006, order. To the contrary, the fact that Woodward had not completed his probationary term and the fact that his probationary term had been tolled in December 2003 — the two main pieces of information relied on by the trial court in rescinding its July 26, 2006, order — were clearly reflected on the trial court’s own case-action-summary sheet for Woodward’s conviction, which also specifically referenced the case-action-summary sheet for Woodward’s Rule 32 petition, and both of those case-action-summary sheets were readily available to the trial court when it discharged Woodward from probation on July 26, 2006. Although clearly the trial court should not have discharged Woodward from probation based on Woodward’s true probationary status, Rule 29, Ala.R.Crim.P., does not authorize corrections to a judgment that resulted from judicial error, no matter how erroneous the original judgment was at the time it was rendered. “A trial court may correct a judgment or order in a manner to speak the truth only, not to change what the trial court originally intended and pronounced.” Ex parte Bailey, 778 So.2d 163, 165 (Ala.2000).

For the reasons stated above, we have no choice but to conclude that the trial court’s October 18, 2006, order rescinding its July 26, 2006, order discharging Woodward from probation was not authorized by Rule 29, Ala.R.Crim.P. Therefore, the trial court lacked jurisdiction to rescind its July 26, 2006, order on October 18, 2006, more than 30 days after the July 26, 2006, judgment was rendered. Likewise, because Woodward was discharged from probation on July 26, 2006, the trial court also lacked jurisdiction to revoke his probation on October 20, 2006, some three months after Woodward’s probationary term had ended.

Based on the foregoing, the judgment of the trial court is reversed, and this cause remanded for the trial court to set aside its revocation of Woodward’s probation and to reinstate its July 26, 2006, order discharging Woodward from probation.

REVERSED AND REMANDED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur. BASCHAB, P.J., recuses herself.

      . Alternatively, Woodward argues that his five-year probationary period, which began in 1999, had expired in 2004, without ever having been tolled. In its brief, the State argues that neither of Woodward's arguments regarding when his probationary term ended were properly preserved in the trial court. However, both of Woodward’s arguments impact the jurisdiction of the trial court to revoke his probation and, thus, did not have to be preserved in the trial court. See, e.g., Mumpfield v. State, 872 So.2d 205, 207 (Ala.Crim.App.2003) (claim that trial court erred in revoking probation after probationary term had ended was “jurisdictional and therefore not subject to waiver”). We also note that, although the State alternatively addresses in its brief the merits of Woodward's argument that his probationary period had never been tolled, it does not specifically address the merits of Woodward’s argument that the trial court had discharged him from probation in July 2006.

      .Indeed, in both a motion filed by the State in the trial court (see discussion infra) and in its brief on appeal, the State expresses the view that this order did, in fact, terminate Woodward's probation. See State’s brief at p. 4 (noting that ”[o]n July 26, 2006, according to an interoffice communication by the Probation and Parole Office, Woodward’s probation was terminated”); at p. 12 (referring to the July 26, 2006, order as "the order terminating probation”); at p. 14 (referring to the July 26, 2006, order as "the act of terminating Woodward’s probation”); at p. 15 (referring to the July 26, 2006, order as "the order terminating probation”); and at p. 16 (referring to the July 26, 2006, order as “the order terminating probation”).

      . Woodward is currently incarcerated without bond on a charge of capital murder relating to Officer Houts’s death.

      . This assertion is incorrect. As noted above, the notation indicating that a capias warrant had been issued for Woodward’s arrest on December 15, 2003, was entered on the case-action-summary sheet for Woodward’s original conviction, and that notation specifically referred to the case-action-summary sheet for Woodward's Rule 32 petition. Thus, a simple review of the case-action-summary sheet for Woodward's conviction would have shown that Woodward's probationary period had been tolled.

      . See notes 1 and 2, supra.

      . The Alabama Rules of Criminal Procedure do not have anything comparable to Rule 60(b), Ala.R.Civ.P., which permits a trial court to relieve a party of a final judgment upon a motion, even if that motion is filed more than 30 days after the judgment.

      . We note, however, that this clerical mistake was never corrected by the trial court; the case-action-summary sheet for Woodward's conviction was never amended to reflect that on December 10, 2003, Woodward was declared delinquent.


author: WELCH, Judge.

text:
    Brandon McCOMBS v. STATE of Alabama.
    CR-06-2106.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.
    Ralph L. Armstrong, Bessemer; and William A. Short, Jr., Bessemer, for appellant.

      Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WELCH, Judge.

Brandon McCombs was indicted on a charge of murder, a violation of § 13A-6-2, Ala.Code 1975. After hearing the evidence in the case, a jury convicted him of the lesser-included offense of manslaughter. The trial court then sentenced McCombs to 20 years’ imprisonment.

The evidence adduced at trial tended to show the following. On the night of June 24, 2005, McCombs and two of his Mends went to a site on the Warrior River known as “the bridge,” where young adults primarily from the Pleasant Grove and Huey-town areas congregated. (R. 72.) McCombs, who had graduated from McA-dory High School in MeCalla a month earlier, had broken up with Brittney Vice, his girlfriend of several years, the day before.

Several witnesses testified that there were several dozen people at the bridge when a pickup truck pulled up close to a gathering of people near a bonfire. There was conflicting evidence as to whether McCombs was driving the truck. McCombs got out of the truck and walked over to where Vice was talking to Matt Gibson, a boy she had known since elementary school. McCombs was not known to most of the people at the gathering.

The witnesses testified that McCombs appeared to be angry. Gibson testified that McCombs was drinking beer from a bottle when he approached. McCombs told Gibson “to stop talking to his girlfriend, and that I needed to get away from her.” (R. 162.) Gibson said that he told McCombs that he was “just trying to calm [Vice] down.” (R. 162.) McCombs then stood a short distance away from Gibson, but Gibson said he could see McCombs was staring at him.

Gibson’s older brother, Josh, was also at the bridge that night. Gibson testified that after McCombs and he had spoken, Josh went to McCombs and told him to leave Gibson alone. Josh’s friend Clay Burton also approached McCombs. Burton had his arm around McCombs’s shoulders to lead him away. Burton said he told McCombs that he was “outnumbered” and that it was possible he was going to “get [his] butt whooped.” (R. 372.) McCombs appeared to push Burton away, and Burton punched McCombs in the chest. Matt Farris then punched McCombs in the head, making him stumble. McCombs caught himself with his hand on the ground, straightened up, and another, unidentified, person hit him.

After the third punch, McCombs began running toward the river. McCombs testified that he ran because he believed he “was going to get stomped,” as Burton had told him. (R. 576.) Witnesses said 20-year-old Tyler Vaughan, who was not involved in the altercation, “came up, placed his hands like on [McCombs’s] chest, like he was kind of breaking it up.” (R. 181-82.) Farris testified that Gibson then “took off and Tyler followed him.” (R. 182.) The two were headed down a hill toward the river, away from the fire and into the dark.

Few people saw what happened next. Alan Hadder testified that as McCombs was running down the hill, he “bumped into Tyler. And it looked like he threw his hands up and hit Tyler in the chest and Tyler went and grabbed him. Like trying to slow him down to stop him. And then they went down the hill a little bit, and were kind of tied up.” (R. 215.) Hadder said it looked like Vaughan and McCombs were wrestling and McCombs hit Vaughan in the chest. “Right after that happened, Tyler just kind of let go, and was just kind of — seeing him grab his chest, and [McCombs] took off running into the woods.” (R. 216.)

McCombs testified that he did not recall running into anyone as he ran away from the fire toward the woods and river. He said that he was scared and that he jumped into the river. He said he could hear people talking on the bank above him. He did not get out of the river “[bjecause I thought they would continue to beat me.” (R. 578.)

Witnesses testified that after Vaughan and McCombs stopped wrestling and McCombs ran off, Vaughan said that he had been stabbed. Hadder called 9-1-1, and Vaughan’s friends helped him to the bed of a pickup truck. Vaughan was driven to a nearby service station, where paramedics met him. A helicopter was called to transport Vaughan from the service station to the hospital, where he died from a stab wound that had entered his heart.

I.

On appeal, McCombs contends, as he did in a timely motion for a new trial, that he received ineffective assistance of trial counsel because, the night before McCombs was to testify, his attorney instructed him to lie and to deny that he had stabbed Vaughan. In testifying as his attorney had advised, McCombs gave up the right to assert the defense of self-defense.

At the hearing on his motion, filed by McCombs’s appellate attorney, McCombs’s trial counsel, Ralph L. “Buddy” Armstrong, admitted that the allegation was true. Armstrong testified that during the course of McCombs’s trial, he had become frustrated by what he characterized as witnesses who were testifying to information different from what they had said during the investigation of the case, to witnesses whose memories of the night of the incident were purportedly better 11 months after Vaughan’s death than in the days immediately following the incident, and to a police officer’s evasive answers to his questions on cross-examination. As a result of that frustration, he said, he instructed McCombs to lie and to state that he had not stabbed Vaughan rather than admit to the stabbing but evoking a defense of self-defense.

Armstrong further testified that McCombs repeatedly asked him whether Armstrong was sure that he wanted McCombs to say that he had not stabbed Vaughan. Armstrong said that McCombs was young — 18 years old — and that Armstrong, a veteran criminal defense attorney, had an influence over McCombs such that McCombs was going to follow Armstrong’s advice in how to testify.

Armstrong also said that in having McCombs testify falsely during the trial, he knew he was forgoing a defense of self-defense and that that was “a horrible mistake.” (Transcript on hearing on motion for new trial, R. 19.)

McCombs testified that he was relying on the advice of his counsel when he testified falsely at the trial of this case.

In Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court set forth the standard that must be met to find ineffective assistance of counsel. The Court explained that,

“[i]n giving meaning to the [constitutional requirement of effective assistance of counsel] ... we must take its purpose— to ensure a fair trial — as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
“A convicted defendant’s claim that counsel’s assistance was so defective as to require a reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.”

In remanding a case to the trial court for specific findings regarding a defendant’s claim of ineffective assistance of counsel, this court has held as follows:

“ ‘The performance component outlined in Strickland, is an objective one: that is, whether counsel’s assistance, judged under “prevailing professional norms,” was “reasonable considering all the circumstances.” ’ Daniels v. State, 650 So.2d 544, 552 (Ala.Crim.App.1994) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). ‘A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ Strickland, 466 U.S. at 690, 104 S.Ct. 2052.”

Thomas v. State, [Ms. CR-05-1553, September 28, 2007] - So.3d -, - (Ala.Crim.App.2007).

The United States Supreme Court has stated that “under no circumstance may a lawyer either advocate or passively tolerate a client’s giving false testimony.” Nix v. Whiteside, 475 U.S. 157, 171, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Rule 3.3(a)(3) of the Alabama Rules of Professional Conduct provides that a lawyer shall not knowingly offer evidence that he knows to be false. In discussing similar rules of professional conduct, the Supreme Court in Nix said,

“These standards confirm that the legal profession has accepted that an attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.”

Nix, 475 U.S. at 168-69, 106 S.Ct. 988.

There can be no question that the performance of McCombs’s trial counsel falls outside prevailing professional norms and was unreasonable under any circumstance. Therefore, we must determine whether Armstrong’s deficient performance so prejudiced McCombs as to deprive him of a fair trial.

In suborning perjury, Armstrong prevented the jury from reaching a decision based on the actual facts of this case. McCombs argues that Armstrong’s deficient performance deprived him of the viable defense of self-defense. It is axiomatic that self-defense is a recognized defense to a charge of murder in Alabama. The defense has been codified at § 13A-3-23, Ala.Code 1975, in pertinent part, as follows:

“(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. A person may use deadly physical force, and is legally presumed to be justified in using deadly physical force in self-defense or defense of another person pursuant to subdivision (4), if the person reasonably believes that another person is:
“(3) Committing or about to commit ... assault in the first or second degree .... ”

The evidence was undisputed that McCombs had been told that he was outnumbered and that it was possible he was going to get his “butt whooped.” McCombs had been hit by three people and, by all accounts, was attempting to run when Vaughan was killed. Based upon this evidence, a defense that McCombs acted out of a reasonable belief that an assault was imminent was a viable defense. Had the jury been allowed to consider that McCombs acted in self-defense, the verdict may have been different. Armstrong’s deficient conduct prejudiced McCombs’s opportunity for a fair trial and reliable verdict.

We do not have an opinion as to what the “proper” verdict in this case should be — such a decision is to be left to the jury. See Brooks v. State, 630 So.2d 160, 162 (Ala.Crim.App.1993) (whether a killing is justified under the theory of self-defense is for the jury to determine). However, self-defense was a plausible theory of defense under the evidence presented in this case. Because of the deficient performance of McCombs’s trial counsel, however, the jury was prevented from considering self defense. There clearly was a breakdown in the adversary process in this case that undermined the proceeding and administration of justice and rendered the resulting verdict unreliable. Thus, McCombs was denied his right to effective counsel.

This court recognizes that McCombs committed perjury and that his attorney, Armstrong, suborned perjury in an attempt to manipulate the justice system. For a member of the bar to suborn perjury is anathema to the ideals and federal and state constitutions he has sworn to uphold. At the hearing on the motion for a new trial, the trial court expressed concerns about such manipulation. We agree with the trial court’s concerns, and we do not believe that the conduct of either Armstrong or McCombs should go unpunished. However, that punishment must be for them admitted subornation of perjury and perjury, respectively. McCombs still is entitled to a fair trial with a reliable verdict in this case.

The issue before us is whether, in suborning perjury, McCombs’s trial counsel provided McCombs with ineffective assistance of counsel in McCombs’s trial for murder. For the reasons discussed above, we are compelled to find that he did. Therefore, we must reverse the judgment of the trial court, and we remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, J., concurs.

BASCHAB, P.J., and SHAW, J., concur in the result.

WISE, J., recuses herself.

      . We note that the issue in Nix was whether a criminal defendant's Sixth Amendment right to assistance of counsel is violated when trial counsel refuses to cooperate with the defendant's decision to present perjured testimony during trial.


author: BASCHAB, Presiding Judge.

text:
    D.W. v. STATE of Alabama.
    CR-07-0705.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.
    Derrick K. Collins, Birmingham, for appellant.
    Troy King, atty. gen., and James B. Prude, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, D.W., was adjudicated delinquent based on two underlying charges of sodomy involving D.W. and A.S., violations of § 13A-6-63(a)(1), Ala.Code 1975. The trial court committed him to the Department of Youth Services for sexual offender treatment. This appeal followed.

A.D. testified that, on the afternoon of August 18, 2007, she left her four-year-old daughter D.W., her three-year-old son T.D., and her six-year-old niece A.S. at her mother’s house with her mother. When she returned approximately three hours later, her mother was not there; her nephew Q.W. and D.W., T.D., and A.S. were outside; and her other nephew, the appellant, was locked in the house.

D.W. testified that she was five years old; that, on the day in question, she was in the living room at her grandmother’s house; and that the appellant put her under the cover, pulled her pants down, and “pulled his wee-wee out and put it in [her] in [her] butt.” (R. 58-59.) She told Q.W., and Q.W. tried to telephone her grandmother, but the appellant hung up the telephone and locked the rest of the children out of the house.

A.S. testified that she, the appellant, Q.W., D.W., and T.D. were at her grandmother’s house watching television on the day in question and that her grandmother left. At one point, D.W. told her that the appellant had put the cover over her and “put [his] wee-wee in [her] butt,” but she did not see it happen. (R. 72.) Afterward, she got under the cover with the appellant, and the appellant “put his wee-wee in [her] butt.” (R. 74.) A.S. also testified that she and D.W. told Q.W. about the incident and that he tried to telephone their grandmother, but the appellant took the telephone. Q.W. then took them outside.

T.D. testified that D.W. and A.S. were sitting in the living room floor at his grandmother’s house and that the appellant “[s]tuck his wee-wee in their privacy.” (R. 49.)

D.W. and A.S. were interviewed at the Prescott House, and the juvenile court reviewed DVDs of the interviews. Likewise, we have reviewed the DVDs of the interviews with D.W. and A.S. In her statement, D.W. said that the appellant did something bad to her while she was in the living room at her grandmother’s house; that her grandmother left; that the appellant was under the cover on the floor; that the appellant pulled her clothes down; that the appellant put his wee-wee in her butt; that the appellant did not say anything to her, and she did not say anything to him; and that it hurt. In her statement, A.S. said that, while she was in the living room at her grandmother’s house, the appellant pulled down her clothes and his clothes and stuck his wee-wee in her butt and in D.W.’s butt.

Q.W. testified that he was eleven years old and that the appellant was his brother. He also testified that, on the day in question, he, D.W., T.D., A.S., and the appellant were in the living room at his grandmother’s house watching television and that his grandmother left and told them to stay in the living room. At some point, D.W. and A.S. started hitting the appellant, who was on the floor under some cover, and he turned his back to pick up a battery. Afterward, the appellant left the room, and D.W. and A.S. told him that the appellant “had stuck his wee-wee in their butt.” (R. 21.) Q.W. testified that he tried to telephone his grandmother, but the appellant took the telephone from him, hung it up, and starting throwing things. He took the other children outside, and the appellant stayed in the house and locked the door.

On cross-examination, Q.W. testified that he was in the living room from the time his grandmother left until D.W. and A.S. made the allegations against the appellant; that he did not see the appellant take his clothes off and did not see the appellant’s penis; that he did not see the appellant stick his penis in the girls’ butts; that he did not see D.W. and A.S. take their clothes off or get under the cover with the appellant; and that he did not see the appellant do anything to D.W. or A.S.

The appellant testified that, on the day in question, his grandmother left him in charge of the other children when she left her house; that he was on the floor with a see-through blanket that covered part of his body; that D.W. and A.S. got on the floor and started hitting him; and that he left the room. He also testified that he did not put his penis in D.W.’s or A.S.’s butt. Finally, he testified that he got angry when he heard the girls accusing him of something he did not do.

The appellant argues that the State did not present sufficient evidence to support his delinquency adjudication based on underlying charges of first-degree sodomy. Specifically, he contends that the State did not establish that he acted with forcible compulsion. We agree.

“A person commits the crime of sodomy in the first degree if:
“(1) He engages in deviate sexual intercourse with another person by forcible compulsion .... ”

§ 13A—6—63(a)(1), Ala.Code 1975. “Deviate sexual intercourse” is defined as

“[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.”

§ 13A-6-60(2), Ala.Code 1975. “Forcible compulsion” is defined as

“[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.”

§ 13A-6-60(8), Ala.Code 1975.

“ ‘Section 12-15-65(e), Ala.Code 1975, requires that an adjudication of delinquency be supported by “proof beyond a reasonable doubt, based on competent, material!,] and relevant evidence.” The credibility of witnesses and the truthfulness of testimony in delinquency proceedings is for the trier of fact to determine. C.T.L. v. State, 599 So.2d 94 (Ala.Cr.App.1992). Furthermore, in resolving questions of sufficiency of the evidence, this court must view the evidence in the light most favorable to the state. Id.’
“A.A.G. v. State, 668 So.2d 122, 124 (Ala.Crim.App.1995).”

C.M. v. State, 889 So.2d 57, 62-63 (Ala.Crim.App.2004).

In this case, the State did not present any evidence that the appellant used physical force that overcame D.W.’s and A.S.’s earnest resistance. Also, it did not present any evidence that the appellant used threats, either express or implied, that placed D.W. and A.S. in fear of immediate death or serious physical injury. See Ex parte J.A.P., 853 So.2d 280, 284 (Ala.2002) (noting that, in Powe v. State, 597 So.2d 721 (Ala.1991), “[t]his Court made it quite clear that its holding [regarding implied threats] would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children”). At most, it presented evidence that the appellant put D.W. under the cover and that he pulled down D.W.’s and A.S.’s clothes. Therefore, we are compelled to conclude that the State did not present sufficient evidence of forcible compulsion.

Because the State did not present sufficient evidence of forcible compulsion, we must reverse the juvenile court’s adjudication of delinquency against the appellant based on underlying charges of first-degree sodomy. See Ex parte J.A.P., supra; C.M., supra. However, it appears that the State did present sufficient evidence to support an adjudication of delinquency based on two counts of sexual misconduct pursuant to § 13A-6-65(a)(3), Ala.Code 1975. Accordingly, we reverse the juvenile court’s adjudication of delinquency against the appellant based on underlying charges of first-degree sodomy and remand this case to the juvenile court for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

WISE and WELCH, JJ., concur.

McMILLAN and SHAW, JJ., concur in the result.

      . The appellant was also charged with first-degree sodomy of T.D., but the juvenile court found that charge not true.