author: DONALDSON, Judge.

text:
    EX PARTE A.A., SR.
    (In re A.A., Sr. v. Jefferson County Department of Human Resources)
    2170062 2170063
    Court of Civil Appeals of Alabama.
    April 20, 2018
    U.W. Clemon, Birmingham, for petitioner.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

A.A., Sr. ("the father"), seeks review of two orders of the Jefferson Circuit Court, Bessemer Division ("the circuit court"), transferring the appeals of the judgments entered in two juvenile cases to this court. The father seeks to set aside the transfer orders and to require the circuit court to conduct a trial de novo of each juvenile case. As the court that initially received the appeals, the circuit court had the responsibility to determine whether adequate records were available for this court's appellate review before transferring the appeals. Because that determination had not been made by the circuit court, there was no basis to order the appeals to be transferred to this court. We therefore grant the father relief insofar as he seeks to set aside the orders transferring the appeals. We deny the father relief insofar as he seeks to require the circuit court to conduct a trial de novo on appeal of the judgment entered in each juvenile case.

Facts and Procedural History

On November 10, 2016, the Jefferson County Department of Human Resources ("DHR") initiated proceedings, including the underlying juvenile cases, by filing petitions in the Jefferson Juvenile Court, Bessemer Division ("the juvenile court"), alleging, among other things, that the father's four children were dependent. A guardian ad litem was appointed for the children. On June 20, 2017, the juvenile court conducted a hearing on the issues of the dependency and the custody of the children. On July 13, 2017, the juvenile court entered judgments finding three of the four children to be dependent and determining the custody of those three children.

On July 17, 2017, the father filed notices of appeal to the circuit court as to the juvenile court's judgments regarding two of the children. On July 20, 2017, the father filed motions for an expedited hearing on the custody of those two children. In the motions, the father asserted: "The transcript of [the juvenile court's June 20, 2017,] hearing has been ordered and will be available to the [circuit court]." DHR and the guardian ad litem both filed motions to dismiss the appeals in the circuit court, arguing that this court had jurisdiction of the appeals because, they asserted, there was an adequate record pursuant to Rule 28, Ala. R. Juv. P. The father filed responses arguing that the appeals were properly in the circuit court because, he asserted, the juvenile-court judge never designated a court reporter to prepare a transcript pursuant to Rule 28(A)(1)(c)(ii), Ala. R. Juv. P.

On October 3, 2017, the circuit court entered an order in each appeal, stating, in relevant part:

"It is undisputed by the parties that a dependency trial was held on June 20, 2017 before the Honorable Lorraine Pringle in the Juvenile Court of Jefferson County, Bessemer Division. It is further undisputed by the parties that the trial proceedings were recorded by a court reporter obtained by both [DHR]
and [the father]. The only issue of contention relates to whether Judge Pringle designated a court reporter to transcribe a record of the proceedings in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure and Alabama Rule of Juvenile Procedure 20(B).
"....
"... This Court is not persuaded that it should make that determination. Instead, this Court is of the opinion that the Alabama Court of Civil Appeals is the court to make that determination or proceed as the Alabama Court of Criminal Appeals did in W.R.C. v. State, 681 So.2d 1100 (Ala. Crim. App. 1995) when it remanded the case to the juvenile court for a determination of whether the juvenile court could certify the record as adequate. Under either scenario, it is apparent that the circuit court should not make that determination. Accordingly, this Court lacks jurisdiction and must transfer this case to the appropriate court, which is the Alabama Court of Civil Appeals."

Although the written orders of the circuit court purport in one place to "grant" the motions to dismiss filed by DHR and the guardian ad litem, the orders, in substance, transfer the appeals to this court.

On October 3, 2017, the father filed notices of appeal to this court challenging the circuit court's October 3, 2017, orders. We have elected to treat those notices of appeal as petitions for the writ of mandamus. See F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So.2d 366, 372 (Ala. 2006) ("[An appellate court] consider[s] the facts of the particular case in deciding whether to treat the filing as a petition [for a writ of mandamus] or as an appeal."); Ex parte MedPartners, Inc., 820 So.2d 815, 821 (Ala. 2001) (noting that a petition for the writ of mandamus is an appropriate means to seek to set aside an order transferring a case to another court).

Standard of review

"Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995).

Discussion

Rule 28, Ala. R. Juv. P., sets out the circumstances in which appeals from judgments entered in the juvenile courts may be taken to the circuit court or to this court. Rule 28 provides, in pertinent part:

"(A) Direct Appeals to Appellate Courts.
"(1) Appeals from final orders or judgments of the juvenile court shall be to the appropriate appellate court, subject to the Alabama Rules of Appellate Procedure, after the right to a jury trial, if applicable, has been exercised or waived by all parties entitled thereto and one of the following conditions has been met:
"(a) The parties have stipulated to an agreed statement of the record on appeal in accordance with the provisions of Rule 10(e) of the Alabama Rules of Appellate Procedure ; or
"(b) The parties stipulate that only questions of law are involved and the juvenile court certifies those questions; or
"(c) An adequate record of the proceeding is available pursuant to one of the following circumstances:
"(i) Proceeding Recorded by Electronic Means. Other than as addressed by (ii) below, if the proceeding has been recorded by electronic means, the juvenile court judge designates a person to transcribe the record of the proceeding and to prepare a reporter's transcript in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure, and the juvenile court judge certifies that the record of the proceeding is adequate.
"(ii) Proceeding Recorded by a Court Reporter Present at the Proceeding. If a licensed court reporter or reporters are present at the proceeding to record the proceeding, the reporter or reporters, upon being designated by the juvenile court judge to do so, shall transcribe the record of the proceeding and prepare a reporter's transcript in accordance with the provisions of Rule 10(b)(2) of the Alabama Rules of Appellate Procedure.
"(2) If the appeal provided in this subsection is taken from a final order or judgment in a case or proceeding arising out of the jurisdiction of the juvenile court over a child, as that term is defined in Ala. Code 1975, § 12-15-102(3), the appropriate appellate court for purposes of the appeal shall be (a) the Court of Criminal Appeals in proceedings in which a child is adjudicated delinquent, proceedings to revoke probation or aftercare in delinquency cases, and proceedings in which a motion seeking an order to transfer a case of a child to the adult court for criminal prosecution is either granted or denied, and (b) the Court of Civil Appeals in any other case or proceeding.
"....
"(B) Appeals to Circuit Court. Appeals from final orders or judgments in all other cases, including those cases in which there is not an adequate record as provided in subsection (A) of this rule, shall be to the circuit court for trial de novo, and the case shall be heard by a different circuit court judge if heard by a circuit court judge in the first instance in the juvenile court. The subject of an appeal to the circuit court for trial de novo on delinquency cases or cases involving a child in need of supervision, as that term is defined in Ala. Code 1975, § 12-15-102(4), shall be on the same charge tried in juvenile court; however, no provision of this rule shall be construed to confer the right to a jury trial for a juvenile adjudication appealed to the circuit court. The same provisions of law or rule regarding confidentiality of records and proceedings in the juvenile court shall be applicable on appeal de novo to the circuit court.
"....
"(D) Transfer of Appeal. An appellate court or circuit court may transfer an appeal to another court if it determines that the appeal should be transferred to or should have been brought in that court."

The father filed notices of appeal from the juvenile court to the circuit court. Pursuant to Rule 28(D), Ala. R. Juv. P., the court that receives an appeal must determine whether the appeal should have been brought in another court before transferring the appeal to the other court. In the absence of any stipulations by the parties under Rule 28(A)(1)(a) or (b), whether an appeal belongs in the appropriate appellate court or in a circuit court depends on the availability of an adequate record of the juvenile court's proceedings. Rule 28(A)(1)(c). Therefore, in the absence of any stipulations by the parties under Rule 28(A)(1)(a) or (b), the court receiving an appeal must determine whether an adequate record is available before transferring the appeal pursuant to Rule 28(D).

Because the appeals were to the circuit court, that court had to determine whether adequate records in the juvenile cases were available for appellate review by this court. The circuit court's orders transferring the appeals expressly indicate that determination had not been made. As a result, there was no factual or legal basis to transfer the appeals to this court under Rule 28(D), and the father has shown a clear legal right to mandamus relief. The circuit court is directed to set aside its orders transferring the father's appeals to this court. To rule on the motions filed by DHR and the guardian ad litem, the circuit court must make the initial determination whether adequate records in the juvenile cases are available for appellate review by this court.

The father also argues that the circuit court should conduct a trial de novo pursuant to Rule 28(B) because the records in the juvenile cases are inadequate for our review without a transcript of the June 20, 2017, hearing. DHR argues that a court reporter was present at the June 20, 2017, hearing and that the father's inaction led to the omission of a transcript of that hearing in the records. The father asserts that, even though a court reporter was present at the hearing, the juvenile court did not designate the court reporter pursuant to Rule 28(A)(1)(c)(ii).

The parties have not made any stipulations pursuant to Rule 28(A)(1)(a) or (b). Therefore, an appeal would lie in the circuit court for a trial de novo only if an adequate record for an appeal to this court is not available. See Rule 28(A)(1)(c). It is undisputed that a court reporter was present at the June 20, 2017, hearing in the juvenile court, but a transcript of the hearing has not been produced. Unlike a situation in which a transcript is unavailable or insufficient, the preparation of the records in the juvenile cases, according to the materials before us, is merely incomplete. We note that the circuit court has general superintendence over the juvenile court. See § 12-11-30(4), Ala. Code 1975 ("The circuit court shall exercise a general superintendence over all district courts, municipal courts, and probate courts."). Accordingly, the circuit court may take measures, if necessary, to direct the completion of the records in order to determine whether an adequate record exists in each case.

As discussed, because the father appealed to the circuit court, the circuit court has the responsibility to determine whether adequate records in the juvenile cases are available. The responsibility for that determination includes ensuring any necessary preparation of the records, such as the transcription of the June 20, 2017, hearing in the juvenile court. Because the issue remains for the circuit court to determine, the father cannot establish that the records in the juvenile cases are inadequate. We therefore deny the father's petitions for a writ of mandamus insofar he seeks to compel the circuit court to conduct a trial de novo on appeal of the judgments entered in the juvenile cases.

2170062-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

2170063-PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      In its October 3, 2017, orders, the circuit court cited W.R.C. v. State, 681 So.2d 1100 (Ala. Crim. App. 1995), in which the Alabama Court of Criminal Appeals remanded a juvenile-delinquency case to the Houston Juvenile Court to determine whether the case met the requirements in Rule 28 for an appeal to the Court of Criminal Appeals. The appeal in W.R.C. had been directly to the Alabama Court of Criminal Appeals, not to a circuit court. Therefore, W.R.C. is inapposite to the present case. Moreover, the Alabama Court of Criminal Appeals subsequently vacated that remand order and entered an order transferring the appeal to the Houston Circuit Court. See W.R.C., 681 So.2d at 1101, Note from the Reporter of Decisions; and W.R.C. v. State, (CR-94-1123, March 19, 1996) 683 So.2d 1067 (Ala. Crim. App. 1996) (table).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    L.R.B. v. J.C.
    L.R.B. v. J.C.
    2170306 2170307
    Court of Civil Appeals of Alabama.
    April 20, 2018
    Lisa A. Wilson of Wilson & Shelton, LLC, Rainsville, for appellant.
    Tanya D. Hallford of Leigh Daniel & Associates, Huntsville, for appellee.
   THOMAS, Judge.

In 2009, L.R.B. ("the father") and J.C. ("the mother") were divorced by the DeKalb Circuit Court. According to the parties, the divorce judgment awarded custody of the parties' two children to the father. In April 2012, the mother filed in the DeKalb Juvenile Court ("the juvenile court") an emergency motion for custody of the children; she also filed two form complaints, which initiated a separate action for each child, seeking to have the children declared dependent and in which she alleged that the father had been arrested in Tennessee, had recently been committed to and released from a mental-health-care facility, had a history of mental-health issues and drug use, and, at a recent visitation, had "attempted to fight" the mother.

In August 2012, the juvenile court rendered a judgment that was entered in each action, incorporating the parties' agreement respecting custody of the children. By agreement, the children were placed in the custody of the mother, and the father was awarded specific visitation. In 2015, the mother instituted contempt actions against the father in the juvenile court; the father counterclaimed, requesting a modification of the 2012 judgment and that the mother be held in contempt. The parties reached an agreement regarding the 2015 claims as well, and the juvenile court modified the 2012 judgment only insofar as it specified the location for the exchange of the children for visitation.

In September 2017, the father filed in the juvenile court a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., requesting that the juvenile court set aside the 2012 judgment as void. The father argued in his motion that the juvenile court had lacked jurisdiction to enter the 2012 judgment and that both that judgment and the 2015 modification judgment were void. He contended that the juvenile court had not determined that the children were dependent and that, therefore, the juvenile court had lacked jurisdiction to determine their custody.

The juvenile court rendered a judgment that was entered in each action, denying the father's motion and indicating that it considered the father's motion to have come too late and that the father had assented to the juvenile court's jurisdiction by litigating the 2015 modification actions. The father sought review of the denial of his Rule 60(b) motion via petitions for the writ of mandamus, which we have treated as appeals. See M.M. v. K.J.Z., 249 So.3d 1144 (Ala. Civ. App. 2017) (electing to treat petitions for the writ of mandamus seeking review of the denial of Rule 60(b) motions as appeals from the denial of those motions). This court consolidated the appeals ex mero motu.

The father's motion sought relief from the 2012 judgment under Rule 60(b)(4) based on allegations that the juvenile court had lacked subject-matter jurisdiction to enter the 2012 judgment. Motions seeking relief from a void judgment may be brought at any time.

Ex parte McCrory & Williams, Inc., 155 So.3d 1018, 1020 (Ala. Civ. App. 2014). Thus, despite the juvenile court's conclusion that the father's motion was filed too late, the father's motion was timely filed. Furthermore, we note that " ' "[a] lack of subject-matter jurisdiction is not subject to waiver by the parties," ' " B.L.R. v. N.M.N., 69 So.3d 868, 869 (Ala. Civ. App. 2011) (quoting K.C. v. R.L.P., 67 So.3d 94, 95 (Ala. Civ. App. 2011), quoting in turn Ex parte T.C., 63 So.3d 627, 630 (Ala. Civ. App. 2010) ), so the father's participation in the 2012 actions and the 2015 actions could not imbue the juvenile court with subject-matter jurisdiction.

" 'The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. ("the judgment is void"), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala. 1988). "If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process." Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala. 1978) (emphasis added).' "

L.T. v. W.L., 159 So.3d 1289, 1291 (Ala. Civ. App. 2014) (quoting Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala. 2003) ).

The juvenile court is a court of limited jurisdiction, having "exclusive original jurisdiction of juvenile court proceedings in which a child is alleged to have committed a delinquent act, to be dependent, or to be in need of supervision." Ala. Code 1975, § 12-15-114(a). The mother's 2012 dependency complaint contained allegations that, if proven, could have established that the children were dependent. Thus, her complaint invoked the jurisdiction of the juvenile court. See T.K. v. M.G., 82 So.3d 1, 4 (Ala. Civ. App. 2011) (explaining that a father's allegations that the mother was using illegal drugs and was not properly caring for the parties' children were sufficient allegations upon which to base the juvenile court's exercise of its dependency jurisdiction). However, the juvenile court never took evidence regarding the children's alleged dependency; instead, the parties entered into a settlement agreement respecting the custody of the children. The settlement agreement does not stipulate to the children's dependency, and, as a result, the settlement agreement merely resolves a custody dispute between parents, over which the juvenile court lacked jurisdiction. See § 12-15-114(a) ("A dependency action shall not include a custody dispute between parents."); S.J.S. v. H.M., 103 So.3d 823, 826 (Ala. Civ. App. 2012).

The mother contends that, pursuant to Rule 8(d), Ala. R. Civ. P., the father's failure to file an answer to the dependency complaint resulted in his admission of the facts giving rise to the children's dependency. Thus, she argues, the juvenile court had jurisdiction to enter its 2012 judgment incorporating the parties' settlement agreement because the children's dependency was admitted. The application of Rule 8(d) does obviate the need for proof of an admitted factual averment at trial or in a motion for a summary judgment. See Howard v. Jordan, 390 So.2d 1053, 1054 n.1 (Ala. 1980) ; but see Edwards v. National Speleological Soc'y, Inc., 502 So.2d 337, 339 (Ala. 1987) (indicating that because "[t]he filing of an answer is not a prerequisite to the consideration of a motion for summary judgment," Rule 8(d) cannot always be used to deem facts admitted when no answer has been filed). However, the juvenile court did not try the 2012 actions or enter a summary judgment in those actions. Instead, the parties agreed to resolve their differences, which, based on the language used in the settlement agreement, were based on a custody dispute between them. We cannot agree that Rule 8(d) is applicable in this situation, where the facts were not required to be proven to the juvenile court before it entered its 2012 judgment incorporating the parties' settlement agreement.

Because the juvenile court lacked jurisdiction to enter the 2012 judgment, that judgment is void; the 2015 judgment purporting to modify the 2012 judgment is also void. See S.J.S., 103 So.3d at 826. The father's Rule 60(b)(4) motion was not untimely and is due to be granted. The judgment of the juvenile court is therefore reversed, and the causes are remanded for the entry of a judgment consistent with this opinion.

2170306-REVERSED AND REMANDED.

2170307-REVERSED AND REMANDED.

Pittman and Moore, JJ., concur.

Donaldson, J., concurs in the rationale in part and concurs in the judgment of reversal, but dissents from the remand instructions, with writing, which Thompson, P.J., joins.

DONALDSON, Judge, concurring in the rationale in part and concurring in the judgment of reversal, but dissenting from the remand instructions.

In August 2012, the DeKalb Juvenile Court ("the juvenile court") entered a judgment ("the August 2012 judgment") in response to a complaint filed in the juvenile court by J.C. ("the mother") against L.R.B. ("the father"). The complaint alleged, in part, that the children of the mother and the father were dependent. The August 2012 judgment was modified by a judgment entered in 2015 ("the 2015 judgment"). Neither the August 2012 judgment nor the 2015 judgment specifically addressed the allegation that the children were dependent.

In September 2017, the father filed a motion in the juvenile court pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking an order vacating the August 2012 judgment and, consequently, the 2015 judgment. In essence, the father argued that the juvenile court had not determined that the children were dependent and, therefore, that the juvenile court had lacked jurisdiction to enter the August 2012 judgment and the 2015 judgment. On December 19, 2017, the juvenile court entered the following order in response to the father's motion:

"This cause came before the Court on the Father's motion for relief from Judgment pursuant to Rule 60(b). The Court finds that the Order of 2012 was modified in 2015 and all parties were represented. The Court finds that there is no reason for the Father to have waited until now to request the Court to set aside its Order of August 22, 2012, and therefore, the motion for relief filed by [the father] is denied."

In their briefs to this court, the father and the mother agree that father's September 2017 Rule 60(b)(4) motion should not have been denied by the juvenile court on the basis that it was untimely filed. I agree with the parties and with that portion of the main opinion holding that the father's Rule 60(b)(4) motion should not have been denied for the reasons expressed in the December 19, 2017, order.

I do not agree, however, that the August 2012 judgment can only be construed and interpreted as finding that the children were not dependent. The terms of the August 2012 judgment are not legally inconsistent with a finding of dependency. Although, in accordance with Rule 25(A)(1), Ala. R. Juv. P., the juvenile court should have specifically stated in writing whether dependency had been proven, this court has held in other circumstances that a finding of dependency had been implicitly made, despite the absence of a specific finding of dependency in the judgment. See, e.g., M.W.H. v. R.W., 100 So.3d 603, 607-08 (Ala. Civ. App. 2012). In this case, the jurisdiction of the juvenile court had been properly invoked by the allegations of dependency, and, if the children were dependent, the juvenile court had jurisdiction to enter the August 2012 judgment. Determining the intent and meaning of the August 2012 judgment is a decision for the juvenile court to make initially, and it has not made that decision. " '[I]t is generally the duty of a trial court to first consider all issues raised by the parties, and only after the trial court has done so is review by an appellate court possible.' " R.J.G. v. Mobile Cty. Dep't of Human Res., 141 So.3d 505, 507 (Ala. Civ. App. 2013) (quoting Woodruff v. City of Tuscaloosa, 101 So.3d 749, 755 (Ala. 2012) ). Because the juvenile court denied the father's Rule 60(b)(4) motion without considering the merits of the motion, i.e., whether the juvenile court's August 2012 judgment implicitly found the children to be dependent, I would reverse the order denying the father's Rule 60(b)(4) motion and remand the cases for the juvenile court to further consider and rule upon the motion.

Thompson, P.J., concurs.

      We are aware of the holding of M.W.H. v. R.W., 100 So.3d 603 (Ala. Civ. App. 2012), in which we determined that a mother's agreement to allow the maternal grandparents to assume a child's custody was an implicit admission on the part of the mother that the child was dependent. We noted in M.W.H. that our "conclusion [was] limited to cases such as this one, i.e., cases in which there is a pending dependency petition filed by a nonparent that alleges that the child in question does not have a parent able or willing to provide care or support for the child." M.W.H., 100 So.3d at 607-08 n.4. However, the parties in the present case are both parents, and one parent's relinquishment of a child's custody to the other parent does not impact the relinquishing parent's fundamental right to parent his or her child, as does the relinquishment of custody to a third party. See Ex parte Terry, 494 So.2d 628, 633 (Ala. 1986).


author: THOMPSON, Presiding Judge.

text:
    ALABAMA LAW ENFORCEMENT AGENCY v. Gregory Vincent CARTER, Jr.
    2160820
    Court of Civil Appeals of Alabama.
    April 27, 2018
    Casey N. Bates and F. Tim McCollum, asst. attys. gen., Alabama Law Enforcement Agency, Montgomery, for appellant.
    Jason Jackson, Alexander City, for appellee.
   THOMPSON, Presiding Judge.

The Alabama Law Enforcement Agency ("ALEA") appeals from a judgment of the Clay Circuit Court ("the circuit court") ordering the director of ALEA to rescind the order suspending the commercial driver's license ("CDL") of Gregory Vincent Carter, Jr., to remove the administrative suspension from Carter's driving record, and to immediately reinstate Carter's CDL with no restrictions.

ALEA is the state agency responsible for issuing drivers' licenses in Alabama. § 32-6-4(a), Ala. Code 1975. Pursuant to the Alabama Rules of the Road Act ("the Act"), § 32-5A-1 et seq., Ala. Code 1975, the director of ALEA, or his or her agent, is responsible for the suspension of a person's "driving privilege" "upon a determination that the person drove or was in actual physical control of a motor vehicle while the amount of alcohol in the blood of the person was above the legal limit." § 32-5A-300(a), Ala. Code 1975. That determination is based on the report of the law-enforcement officer who made the arrest of that person, and the "determination shall be final unless an administrative review is requested under Section 32-5A-306 or a hearing is held under Section 32-5A-307." § 32-5A-300(c), Ala. Code 1975. "The determination of these facts by the director, or his or her agent, is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of these criminal charges shall not affect any suspension under this section." § 32-5A-300(d), Ala. Code 1975 (emphasis added).

Carter was arrested on May 4, 2016, in Clay County and was charged with driving under the influence of alcohol ("DUI"). On May 9, 2016, he received from ALEA an "Official Notice of Intended Suspension of Driving Privileges." Carter requested an administrative review of the intended suspension; however, a copy of his request is not contained in the record on appeal. An undated letter from Lt. Rufus Washington, the chief hearing officer for ALEA ("the hearing officer"), to Carter's attorney states that an administrative review was conducted. To sustain the suspension of Carter's CDL, the hearing officer was required to determine, by a preponderance of the evidence, that Carter had driven or was in actual physical control of a motor vehicle with .08% or more by weight of alcohol in his blood. § 32-5A-306(b), Ala. Code 1975.

The letter Carter received from the hearing officer ("the form letter") is a preprinted form that allows the reviewer to check boxes regarding whether "the available information reflects" that the sworn report of the arresting officer was completed and submitted to ALEA, that the licensed driver was operating a vehicle on a public highway, and that the licensed driver either refused a chemical test of his or her breath or had a blood-alcohol test result of .08% or greater. Each of the boxes on the form letter was checked "yes."

The form letter also contains boxes for the reviewer to check whether, based on the "available information," he or she found that "the Statutory Requirements WERE met to sustain the Administrative Order of Suspension" or that those requirements were not met. The hearing officer had checked the box indicating that the statutory requirements were met. The hearing officer then directed that Carter's "privilege to operate a motor vehicle will be suspended/revoked as per the original order of suspension/revocation." Accordingly, Carter's "regular" Class D driver's license was suspended for 90 days and his CDL was suspended for 1 year.

Carter appealed the hearing officer's decision to the circuit court on May 31, 2016. The circuit court stayed the suspension of Carter's driver's license pending a final hearing. On February 7, 2017, the Clay District Court entered a judgment dismissing the underlying DUI case. Under the Act, "regular" driver's licenses and CDLs are treated differently. Section § 32-5A-304(c) of the Act provides that, if a license is suspended as a result of a DUI charge and that charge is dismissed, "the director [of ALEA] shall rescind the suspension order and remove the administrative suspension from the person's driving record, except for those persons holding a commercial driver license...." (Emphasis added.)

Additionally, statutes governing the licensing of drivers who operate commercial vehicles provide that any person who has been convicted of DUI is disqualified from driving a commercial vehicle for a period of not less than one year. § 32-6-49.11(a)(1), Ala. Code 1975. A "conviction" in this context is defined as "[a]n unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or an authorized administrative tribunal...." § 32-6-49.3(7), Ala. Code 1975 (emphasis added).

After hearing arguments from the parties, the circuit court entered a judgment on June 1, 2017, finding that Carter had not been "convicted" of DUI. Accordingly, the circuit court ordered ALEA's director to rescind the suspension order, to remove the suspension from Carter's record, and to reinstate Carter's CDL. His "regular" driver's license had already been reinstated. ALEA filed a motion to alter, amend, or vacate the judgment, which the circuit court denied on June 27, 2017. ALEA timely appealed to this court.

ALEA, in its reply brief, raised for the first time the issue of whether the circuit court lacked subject-matter jurisdiction to review ALEA's decision to suspend Carter's CDL for one year. Ordinarily, this court will not consider an issue not raised in an appellant's initial brief, but raised only in its reply brief. Shankles v. Moore, 205 So.3d 1253, 1258 (Ala. Civ. App. 2016). However, a challenge to the circuit court's subject-matter jurisdiction may be raised at any time by the parties or by a court ex mero motu. Central Alabama Cmty. Coll. v. Robinson, 53 So. 3d 917, 919 (Ala. Civ. App. 2009). The parties were asked to file letter briefs with this court regarding whether the circuit court had jurisdiction to consider Carter's arguments. The parties complied with our instructions, and we now address ALEA's contention that the circuit court lacked subject-matter jurisdiction.

Specifically, ALEA asserts that, because Carter did not request an administrative hearing, as opposed to an administrative review, when he received notice that his licenses were to be suspended, he was not entitled to a judicial review of the hearing officer's decision. Under the Act, a person who receives a notice of suspension or intended suspension has two options: an administrative review, § 32-5A-306, or an administrative hearing, § 32-5A-307. An administrative review may be requested up to 90 days after the notice of suspension. § 32-5A-306(e). However, "[a]n administrative review is not available after a hearing is held." § 32-5A-306(f).

An administrative hearing must be requested within ten days of the notice. § 32-5A-307(a). "Failure to request an administrative hearing within 10 days shall constitute a waiver of the person's right to an administrative hearing and judicial review under this article." Id. The Act allows for judicial review of ALEA's decision "[w]ithin 30 days of the issuance of the final determination of the department following a hearing under Section 32-5A-307." § 32-5A-308. That statute further provides that "a person aggrieved by the determination [after a hearing] shall have the right to file a petition [for judicial review] in the circuit court of the county where the arrest was made." Id. The Act does not contain a mechanism by which judicial review may be sought after an adverse ruling from an administrative review.

The Act also provides that "[t]he procedures set forth in this article [i.e., Article 14 of the Act] shall be the sole and exclusive manner to determine the administration of this article. The Alabama Administrative Procedure Act in Sections 41-22-1 to 41-22-27, [Ala. Code 1975,] inclusive, shall not apply." § 32-5A-307(g). In Huggins v. Alabama Department of Public Safety, 891 So.2d 337, 340 (Ala. Civ. App. 2004), a case discussing the procedure a driver is to use in challenging the notice of an intent to suspend a license or the suspension of a license, this court noted that, " '[w]hen a special statutory procedure has been provided as an exclusive method of review for a particular type case, no other statutory review is available.' Howle [v. Alabama State Milk Control Bd. ], 265 Ala. [189] at 193, 90 So.2d [752] at 755 [ (1956) ]."

Carter does not dispute that he requested an administrative review and not an administrative hearing. The Act does not provide for a judicial review of final determinations made after an administrative review. " 'The principle of subject matter jurisdiction relates to a court's inherent authority to deal with the case or matter before it.' " Ex parte Safeway Ins. Co. of Alabama, Inc., 148 So.3d 39, 42 (Ala. 2013) (quoting 21 C.J.S. Courts § 11 (2006) ). Thus, we must agree with ALEA that the circuit court did not have subject-matter jurisdiction to consider Carter's request for judicial review of ALEA's decision to suspend his CDL for one year.

A judgment entered without subject-matter jurisdiction is void. McDaniel v. Ezell, 177 So.3d 454 (Ala. 2015). A void judgment will not support an appeal. Ingram v. Alabama Peace Officers' Standards & Training Comm'n, 148 So.3d 1089, 1093-94 (Ala. Civ. App. 2014). Because the circuit court did not have subject-matter jurisdiction, its judgment ordering the director of ALEA to rescind the order suspending Carter's CDL, to remove the administrative suspension from Carter's driving record, and to immediately reinstate Carter's CDL with no restrictions is void, and the appeal is dismissed.

APPEAL DISMISSED.

Thomas, Moore, and Donaldson, JJ., concur.

Pittman, J., concurs specially.

PITTMAN, Judge, concurring specially.

I concur in the main opinion. Alabama Code 1975, § 32-5A-306(f), provides that a party can request an administrative hearing conducted under Ala. Code 1975, § 32-5A-307, without first requesting an administrative review conducted under § 32-5A-306 ; however, "[t]he determination by the director [of the Alabama Law Enforcement Agency], or his or her agent, upon administrative review is final unless a hearing is requested under [§] 32-5A-307." § 32-5A-306(b) (emphasis added). Further, because the right to judicial review of a suspension effected by the Alabama Law Enforcement Agency under Article 14 of Chapter 5A of Title 32 is explicitly conditioned upon pursuit of the administrative-hearing rights afforded under § 32-5A-307, see Ala. Code 1975, §§ 32-5A-307(a) and 32-5A-308, and because the legislature has mandated that the procedures set out in that article be "the sole and exclusive manner to determine the administration of this article," § 32-5A-307(g), the main opinion correctly concludes that the failure of Gregory Vincent Carter, Jr., to invoke those administrative-hearing rights divested the trial court of subject-matter jurisdiction to afford relief to him.

      The form letter also notes that, if the hearing officer finds that the statutory requirements were met to sustain the suspension of a driver's license, "additional penalties may apply if the licensee ... is the holder of a commercial driver license, as per Federal Motor Carrier Safety Regulations."


author: WINDOM, Presiding Judge.

text:
    Kevin Andre TOWLES v. STATE of Alabama
    CR-15-0699
    Court of Criminal Appeals of Alabama.
    April 27, 2018
    Charlotte Morrison and Benjamin Shaefer, Montgomery, for appellant.
    Luther Strange and Steven Marshall, attys. gen., and Richard D. Anderson, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Kevin Andre Towles appeals his capital-murder conviction and sentence of death. Towles was convicted of murder made capital for the intentional killing of Geontae Glass, who was under the age of 14. See § 13A-5-40(a)(15), Ala Code 1975. The jury unanimously recommended that the circuit court sentence Towles to death. The circuit court followed the jury's recommendation and sentenced Towles to death.

Towles was involved in a romantic relationship with Shalinda Glass. Shalinda had two children, Geontae Glass and Shaliyah Glass. The children considered Towles their father. Shalinda and her children sometimes spent the night at her apartment. They, however, often spent their nights with Towles at one of his two houses-one located on Broad Street in Albertville and the other located on Shady Grove Road in Boaz.

In December 2006, Geontae was a five-year-old boy in kindergarten at John S. Jones Elementary School in Etowah County. Kelly Page, Geontae's teacher, used a system to grade her students' conduct each day. Under her system, students who had behaved well received a smiling face, students who had received a warning or two for their behavior received a straight face, and students who had not behaved received a frowning face. On Friday, December 1, 2006, Page gave Geontae a straight face. Upon receiving the straight face, Geontae became upset, cried, and said that his "daddy [was] going to spank [him] when [he got] home." (R. 1898.)

On the Saturday after Geontae had brought home the straight face on his conduct report, the family went to a barbeque restaurant that Towles owned and operated. While at the restaurant, Towles and/or Shalinda punished Geontae by making him stand in the corner all day. That night, Towles, Shalinda, and the children left the restaurant and went to spend the night at Towles's Shady Grove residence.

The following morning, Shaliyah woke up and watched television in the den. While she was watching television, Shaliyah saw Towles lead Geontae through the den and outside of the house. Shaliyah heard Towles say that Geontae "had to pay." (R. 2216.) Later, Shaliyah saw Towles carry Geontae into the house, through the den, and toward some rooms on the other side of the house. Shaliyah never saw Geontae alive again.

After Towles left Geontae in one of the rooms on the other side of the house, he joined Shaliyah in the den. Shaliyah saw that Towles was crying. Shaliyah watched television for a while, and then asked Towles to let her ride a four-wheeler type, all-terrain vehicle. Towles agreed, and the two of them rode four-wheelers for the rest of the day. Both Towles and Shaliyah testified that Towles took Geontae food Sunday evening. At some point, Geontae died from injuries he had received by being struck on the buttocks with a board.

After Geontae died, Towles and Shalinda devised a plan in which they would put Geontae's body in Shalinda's car, drive to a gasoline station, and stage a car theft/kidnapping. Thereafter, between 2:30 and 3:00 a.m. on Monday, Towles called Bobby Spidell, an individual he had known most of his life, and asked Spidell to come pick him up. Spidell drove his blue pickup truck to Towles's Broad Street residence, where he met Towles and Shalinda between 4:30 and 5:00 a.m., and they talked in the driveway for a while. Thereafter, Towles got into Spidell's truck and told Spidell to drive him to a Conoco brand gasoline station on Baltimore Avenue in Albertville.

That morning Shaliyah got ready for school. When Shaliyah got in the car to go to school, Geontae's body was already in the backseat. Shalinda told Shaliyah that Geontae was asleep and to leave him alone. They then drove to the Conoco gasoline station on Baltimore Avenue. When they arrived at the gas station, Shalinda and Shaliyah left Geontae in the car and went inside the store. Once inside the store, Shaliyah tried to use the restroom, but it was out of order. She then went with her mother to the store clerk to purchase drinks and snacks.

While Shalinda and Shaliyah were in the store, Spidell's truck pulled into the parking lot of the gas station. A person matching Towles's description got out of the truck, got into Shalinda's car, and sped away, followed by the truck. Meanwhile, Shalinda paid for Shaliyah's snacks, and they went outside where they saw that the car was missing. Shalinda then went to a pay telephone and telephoned Towles. When Towles did not answer his telephone, Shalinda telephoned 911 emergency and reported her car stolen and Geontae missing.

After Shalinda reported Geontae missing, an AMBER Alert was issued for him, and City, County, and Federal law-enforcement officers became involved in investigating his whereabouts. Shalinda, Shaliyah, and Towles were all interviewed by law-enforcement officers. During her interview, Shaliyah described the residence where she had been the preceding Sunday-the Shady Grove residence. In his interview, Towles omitted any information about the Shady Grove residence but gave law-enforcement officers permission to search his Broad Street residence. While searching the Broad Street residence, officers noticed that the residence did not match the description given to them by Shaliyah. The officers also found a power bill for the Shady Grove residence in the name of Towles's wife, Vicky Towles.

Thereafter, officers searched the Shady Grove residence and found Shalinda's car with Geontae's body in the trunk. They also found, among other things, illegal drugs, an assault rifle, a pistol, a bulletproof vest, and $33,382. After officers located Geontae's body, Investigator Mike Jones of the Etowah County Sheriff's Office and Agent Brenn Tallent of the Federal Bureau of Investigation interviewed Towles again. During the interview, Towles stated that he was responsible for what had happened to Geontae and that he did not want Shalinda charged in Geontae's death. Towles then told the officers that two or three masked men came to his Shady Grove residence to rob him and, during the robbery, caused Geontae's death. Specifically, Towles told the officers that he was outside his Shady Grove residence on Sunday when masked men approached him and demanded that he bring Geontae to them. Towles complied with the masked men's demand. Once the men had Geontae, they demanded money. Towles said he gave the men approximately $15,000. Before the men left, one of them took Geontae behind the house and beat him while another masked man held Towles at gunpoint. After the beating, Towles took Geontae inside the residence. Towles said that he knew Geontae was injured and planned to take Geontae to the doctor the next morning. Geontae, however, died from his injuries.

Dr. Emily Ward, a state medical examiner, performed the autopsy on Geontae. Dr. Ward noted injuries all over Geontae's body that she considered to be nonlethal. Geontae had new injuries and old injuries that had begun to heal. Dr. Ward testified that Geontae's body had incisions to the right buttock and thigh and that there was a large accumulation of blood in the muscles in that area. Dr. Ward explained that the accumulation of blood was significant because it indicated that the injury was extremely forceful. Further, the muscular damage sustained by Geontae caused an increase in his bloodstream of myoglobin, which Dr. Ward classified as a highly toxic substance capable of causing kidney failure. Geontae's lower back did not appear to have injuries to the skin, indicating that Geontae did not receive a direct blow to that area. However, the force applied to the buttocks was significant enough to cause hemorrhaging that reached Geontae's spinal cord. Based on the level of hemorrhaging in the nerve fibers of the lower portion of the spinal cord, Dr. Ward surmised that Geontae's injuries resulted in paralyzation. Dr. Ward testified that in her opinion Geontae died of complications from blunt-force injuries but that he could have survived had he received medical attention. Dr. Ward further testified that a portion of the skin on Geontae's buttocks was denuded. Dr. Ward testified that the denuded-skin injury was consistent with having been struck with a piece of wood.

After the autopsy, officers went back to the Shady Grove residence to search for any items that could have caused the injuries that led to Geontae's death. In the backyard officers found a four-foot long, two-inch by four-inch piece of lumber with red/brown stains. The stains tested positive for blood. Subsequent testing established that the stains contained Geontae's DNA.

Standard of Review

Because Towles has been sentenced to death, this Court must search the record for "plain error." Rule 45A, Ala. R. App. P., states:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

(Emphasis added.)

In Ex parte Brown, 11 So.3d 933 (Ala. 2008), the Alabama Supreme Court explained:

" ' "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's 'substantial rights,' but it must also have an unfair prejudicial impact on the jury's deliberations." ' Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala. Crim. App. 1998) ). In United States v. Young, 470 U.S. 1, 15 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
" 'The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157] , at 160 [ (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S., at 163, n.14.'
"See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would 'seriously affect the fairness or integrity of the judicial proceedings,' and that the plain-error doctrine is to be 'used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result' (internal quotation marks omitted) )."

11 So.3d at 938. "The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal." Hall v. State, 820 So.2d 113, 121 (Ala. Crim. App. 1999). Although Towles's failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala. Crim. App. 1991).

Discussion

On appeal, Towles argues, among other things, that the State used improper methods to undermine his defenses. Specifically, Towles argues that part of his defense was to assert that Shalinda had caused Geontae's death. Towles then asserts that the State rebutted that defense by improperly informing the jury that Shalinda had been convicted of and was serving a sentence in prison for failing to protect Geontae from Towles. According to Towles, the State used Shalinda's conviction to show that he had caused Geontae's death and, thus, undermined his defense that she was the actual killer. Towles asserts that Shalinda did not testify; therefore, her conviction was inadmissable. However, the circuit court failed to prevent or take corrective action when the State improperly informed the jury of Shalinda's conviction and sentence. Towles also argues that the circuit court improperly lessened the State's burden to prove the intent element of capital murder. Specifically, Towles asserts that the State incorrectly informed the jury that it could prove that Towles had the specific intent to kill Geontae by establishing that Towles reasonably knew that his actions would cause serious physical injury to Geontae. Towles then asserts that the circuit court compounded the prosecutor's error by instructing the jury that the knowledge that his actions would probably cause serious physical injury was sufficient to establish the intent necessary for a capital-murder conviction. Towles failed to properly and/or timely raise these issues at trial; therefore, this Court will review them for plain error only. Rule 45A, Ala. R. App. P.

I.

Towles argues that the circuit court failed to take corrective actions when the State improperly informed the jury that Shalinda had been convicted of and was in prison for failing to protect Geontae from Towles. According to Towles, the State used Shalinda's conviction to undermine his defense that Shalinda caused the injuries that led to Geontae's death. Towles asserts that, because Shalinda did not testify, evidence of her conviction was inadmissible, and the circuit court should have taken corrective action when the jury was informed of her conviction. This Court agrees.

The State's theory of the case was that Towles became angry with Geontae for receiving a straight face from his teacher at school. Thus, Towles punished Geontae all weekend. On Sunday, Towles forced Geontae outside the house and used a piece of lumber to strike Geontae on the buttocks. The injuries Geontae received during the beating went untreated and caused his death.

Towles's core defense was that Shalinda had caused Geontae's death. Towles sought to show that, after causing Geontae's death, Shalinda threatened to inform the police of Towles's illegal drug activity unless he helped her conceal her crime. Because he was being blackmailed, Towles helped Shalinda execute her plan to falsify a kidnapping and murder. Thus, Shalinda was responsible for Geontae's death.

To support Towles's defense, his attorney alleged during opening statements that Shalinda had killed Geontae. To rebut defense counsel's statement that Shalinda had killed Geontae, the prosecutor told the jury: "Ladies and gentlemen, a mother has a duty to protect her child. If she doesn't meet that duty, she has a price to pay. And Shalinda Glass is paying it. She's paying the price for not protecting her child from him, as she should." (R. 1236-37.) Later, Towles testified that he did not cause any injuries to Geontae. Rather, Shalinda caused Geontae's death. During cross-examination, the prosecutor sought to impeach Towles's testimony by showing that Shalinda had pleaded guilty to failing to protect Geontae from him. When Towles would not agree with the prosecutor, the prosecutor became argumentative and stated to the jury that "[t]hat's why [Shalinda is] in prison, because she admitted her part in not protecting that child from you." (R. 2643.) The circuit court failed to take corrective action to prevent the jury from considering Shalinda's conviction as proof of Towles's guilt.

This Court has explained:

"Generally, evidence and argument regarding the outcome of a codefendant's case are improper in the trial of a fellow accused. In Tomlin v. State, 591 So.2d 550, 554 (Ala. Crim. App. 1991), this Court stated:
" 'In 1899, the United States Supreme Court held that evidence of a codefendant's conviction was not admissible in the trial of his fellow accused. See Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). This is still the prevailing view. See Annot., 48 A.L.R.2d 1016, and cases cited therein.
" ' "Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, the fact that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other, since competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense, and since each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence.'
" ' 48 A.L.R.2d at 1017.'
"However, we went on to note that '[t]here are exceptions' to this general rule, the first being ' "[w]here the common-law distinction between a principal and an abettor has not been abolished, the conviction or plea of guilty of a principal is admissible against one being tried separately as an abettor, since the principal's guilt is a prerequisite to prove the guilt of the accused." ' 591 So.2d at 554 (quoting 48 A.L.R.2d at 1017, n. 1 ). Additionally, 'evidence of a codefendant's conviction may be admissible for purposes of impeachment when the codefendant testifies at trial. However, the court should give the jury a limiting or cautionary instruction concerning the use of the conviction.' 591 So.2d at 554 (citing United States v. Austin, 786 F.2d 986 (10th Cir. 1986), and Stokes v. State, 462 So.2d 964 (Ala. Crim. App. 1984) ). In Tomlin, this Court held that because evidence that Tomlin's codefendant had already been convicted and sentenced to death came in through the testimony of a law-enforcement official, the codefendant did not testify, and the trial court's limiting instructions were inadequate, neither of the recognized exceptions applied. Accordingly, reversal of Tomlin's conviction and death sentence was mandated. 591 So.2d at 554-56."

Lewis v. State, 24 So.3d 480, 506 (Ala. Crim. App. 2006).

Towles argues-and the State concedes-that Shalinda's conviction and sentence were inadmissible and should not have been considered by the jury. The State, however, argues that the error in allowing the jury to consider Shalinda's conviction was harmless. To the contrary, under the circumstances of this case, the error in allowing the jury to consider Shalinda's conviction resulted in plain error and requires the reversal of Towles's conviction. Rule 45A, Ala. R. App. P.

As the State correctly explains in its brief, "[t]he pivotal question in this case was who administered the beating that killed Geontae." (State's brief, at 37.) To show that Towles "administered the beating," id., the State improperly informed the jury that Shalinda had been convicted of and was in prison for failing to protect Geontae from Towles. The State used Shalinda's conviction to show that she did not kill Geontae; rather, she failed to stop Towles from killing the child. The circuit court failed to take any action to prevent the jury from considering Shalinda's conviction as evidence of Towles's guilt. Thus, the circuit court allowed the jury to consider Shalinda's conviction to strike at the heart of Towles's defense.

Further, the evidence establishing that Towles caused Geontae's death was not so overwhelming as to render the error harmless. Instead, the State's most damning evidence against Towles was the testimony of Shalinda's juvenile daughter. There was, however, no direct evidence regarding when the injuries that caused Geontae's death were inflicted or who inflicted those injuries. Therefore, informing the jury that Shalinda was convicted of failing to protect Geontae from Towles allowed the jury to convict Towles based, in part, on Shalinda's conviction. Consequently, the circuit court's failure to prevent the jury from considering Shalinda's conviction had "an unfair prejudicial impact on the jury's deliberations," Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (citations and quotations omitted), and "adversely affected [Towles's] substantial right[s]." Ex parte Brown, 74 So.3d 1039, 1043 (Ala. 2011). As such, plain error resulted when the circuit court allowed the State to use Shalinda's conviction to undermine Towles's defense. See Rule 45A, Ala. R. App. P.

II.

Towles also argues that the circuit court improperly lessened the State's burden of proving the intent element of capital murder. Specifically, Towles asserts that the State incorrectly informed the jury that it could establish the intent element of capital murder by showing that Towles knew there was a reasonable likelihood that his actions would cause Geontae serious physical injury. Towles then argues that the circuit court gave legal significance to the prosecutor's error by instructing the jury that "knowledge of the probability of death or great bodily harm is sufficient to constitute murder." (R. 2869-70.) According to Towles, the circuit court's instruction lessened the State's burden and undermined his defense that the killing was, at most, unintentional. This Court agrees.

As discussed in Part I of this opinion, the crux of Towles's defense was to blame Shalinda for Geontae's death. He, however, also argued that the State had not, and could not, prove that anyone had intended to kill Geontae. Rather, Geontae's death was the accidental result of harsh punishment.

To rebut Towles's defense that the killing was unintentional, the State argued to the jury:

"Now, what is intent? What is intentional? Now, the judge is going to define that for you, too. And I think he's going to tell you that intent is one of those things that you can only determine by a person's conduct, the circumstances. And you can consider things. Like, if a man is over two hundred pounds and a child is like fifty-three pounds and the person is using a stick, all those are things that you can consider; the severity of the beating, the duration of the beating, the relative size of the victim and the defendant. All those are things that you can consider in deciding whether or not there's intent. Whether or not that person reasonably knew that he was either going to cause a death or-and listen for this-death or serious physical injury.
"If I do something to you and I know that it's a reasonable likelihood I'm either going to kill you or seriously injure you and you die, that's sufficient evidence of intent.
"So listen for that jury charge, please. That's very important. And that is a matter of Alabama law."

(R. 2804-06.) Later, in accordance with the prosecutor's argument, the circuit court instructed the jury that evidence that the defendant intended to cause great bodily harm was sufficient to establish murder. Specifically, the circuit court instructed the jury:

"I charge you, ladies and gentlemen of the jury, that intent is a state of mind and, therefore, rarely susceptible of direct or positive proof. Instead, the element of intent is usually inferred from the facts testified to by the witnesses, together with the circumstances as developed by the evidence.
"I charge you that the duration, brutality and relative strengths of the defendant and victim are factors to be considered by the jury as indication of the defendant's intent to kill.
"Moreover, the continued infliction of injuries by an adult on the child victim may be considered by you as evidence of a conscious intent to seriously harm the victim.
"I charge you, ladies and gentlemen of the jury, that the severity of a defendant's action may be sufficient proof of knowledge of the probability of death or great bodily harm sufficient to constitute murder.
"The intent to kill may be inferred by the vicious character of an assault."

(R. 2869-70.)

"It is well settled that '[t]he Due Process Clause of the Fourteenth Amendment "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." ' " Townes v. State, 253 So.3d 447, 457 (Ala. Crim. App. 2015) (quoting Williams v. State, 710 So.2d 1276, 1334 (Ala. Crim. App. 1996), quoting in turn, In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) ).

"Under § 13A-5-40(b), Ala. Code 1975, 'murder' as used in § 13A-5-40(a) ( [15] ), Ala. Code 1975, ... is defined in § 13A-6-2(a)(1), Ala. Code 1975. Section 13A-6-2(a)(1), Ala. Code 1975, provides: 'A person commits the crime of murder if he or she ...: [w]ith intent to cause the death of another person, ... causes the death of that person or of another person.'
" 'Alabama appellate courts have repeatedly held that, to be convicted of capital offense and sentenced to death, a defendant must have had a particularized intent to kill and the jury must have been charged on the requirement of specific intent to kill. E.g., Gamble v. State, 791 So.2d 409, 444 (Ala. Crim. App. 2000) ; Flowers v. State, 799 So.2d 966, 984 (Ala. Crim. App. 1999) ; Duncan v. State, 827 So.2d 838, 848 (Ala. Crim. App. 1999).'
" Ziegler v. State, 886 So.2d 127, 140 (Ala. Crim. App. 2003)."

Wimbley v. State, 191 So.3d 176, 228 (Ala. Crim. App. 2014), cert. granted, judgment vacated, --- U.S. ----, 136 S. Ct. 2387, 195 L.Ed.2d 760 (2016). "Thus, in a prosecution for capital murder, the State bears the burden of proving beyond a reasonable doubt that the defendant had the specific intent to kill." Townes, 253 So.3d at 458. See also § 13A-5-40(b), Ala. Code 1975; Heard v. State, 999 So.2d 992, 1005 (Ala. 2007) ("[A] defendant must have the intent to kill in order to be found guilty of a capital offense." (citing § 13A-5-40(b), Ala. Code 1975 ) ); Ex parte Woodall, 730 So.2d 652, 657 (Ala. 1998) ("No defendant can be found guilty of a capital offense unless he had an intent to kill." (citing Beck v. State, 396 So.2d 645, 662 (Ala. 1981), and Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) ).

Although a capital-murder conviction requires proof of specific intent to kill, the prosecutor incorrectly told the jury that it could establish the element of intent by showing that Towles "reasonably knew that he was either going to cause [Geontae's] ... death or serious physical injury." (R. 2805)(emphasis added). The prosecutor then erroneously explained to the jury that, "[i]f I do something to you and I know that it's a reasonable likelihood I'm either going to kill you or seriously injure you and you die, that's sufficient evidence of intent." Id. Later, the circuit court solidified the error by instructing the jury that "the severity of a defendant's action may be sufficient proof of knowledge of the probability of death or great bodily harm sufficient to constitute murder." (R. 2870.)

The State concedes that the circuit court's instruction on intent was erroneous but argues that the error was harmless.

Specifically, the State asserts that "[t]he character of the assault on Geontae was so egregious that there is no probability that the jury could have drawn an inference that Towles only intended to cause great bodily harm." (State's brief, at 17.) According to the State, Towles's use of a weapon on a five-year-old boy to cause significant injuries constitutes overwhelming evidence that Towles intended to kill Geontae; therefore, any error was harmless. This Court disagrees.

The evidence indicates that Towles, a grown man, used a deadly weapon to strike and eventually kill a five-year-old boy. Those facts are sufficient for the jury to infer that Towles intended to kill Geontae. See Clark v. State, 196 So.3d 285, 307 (Ala. Crim. App. 2015) ("It is well settled that intent to kill may be inferred from the character of the assault, the use of a deadly weapon and other attendant circumstances." (additional citations and quotations omitted) ). Those facts, however, do not lead to the inescapable conclusion that Towles intended to kill Geontae.

The State's evidence indicated that Towles forced Geontae to the backyard of his house to punish him for receiving a straight face on a conduct report. Towles used a piece of lumber to strike Geontae on the buttocks. Geontae did not die during the attack. Instead, Towles carried him back in the house and placed him in a room. Later that evening, Towles took food to Geontae. At some point, Geontae died from the injuries he had received.

Although there was sufficient evidence from which the jury could infer that Towles intended to kill Geontae, the evidence establishing Towles's intent was not so overwhelming as to render the error harmless. Rather, intent was a contested issue, and Towles reasonably urged the jury to find that the crime consisted of a punishment gone too far. The circuit court's instruction, however, allowed the jury to reject that defense. In other words, "[b]ased on the trial court's instructions, the jury could have found [Towles] guilty of capital murder if he intended to [injure Geontae], but did not intend to kill [him]." Brown v. State, 72 So.3d 712, 720 (Ala. Crim. App. 2010). As such, the circuit court's instruction had "an unfair prejudicial impact on the jury's deliberations," Ex parte Bryant, 951 So.2d 724, 727 (Ala. 2002) (citations and quotations omitted), and "adversely affected [Towles's] substantial right[s]." Ex parte Brown, 74 So.3d 1039, 1043 (Ala. 2011). Accordingly, the circuit court's instruction on intent constituted plain error and requires that Towles's conviction and sentence be reversed. See Rule 45A, Ala. R. App. P.

For the foregoing reasons, this Court reverses the circuit court's judgment and remands this cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Welch, Kellum, and Joiner, JJ., concur. Burke, J., recuses himself.

      "The AMBER Alert Program distributes information regarding children who may have been abducted to the general public through various media." C.L.G. v. State, 50 So.3d 1123, 1125 n.1 (Ala. Crim. App. 2009)

      The record is conflicting as to whether Towles said two or three men robbed him.

      The erroneous jury instruction resulted from this Court's discussion in Boyle v. State, 154 So.3d 171, 223 (Ala. Crim. App. 2013), of the sufficiency of the State's evidence to establish the intent element of capital murder. While discussing the sufficiency of the State's evidence, this Court stated:
      " 'The severity of defendants' actions certainly gave them knowledge of the probability of death or great bodily harm, sufficient to constitute murder. The intent to kill may be inferred by the vicious character of an assault. See People v. Allum, (1967), 78 Ill. App. 2d 462, 223 N.E.2d 187, citing People v. Winters, (1963), 29 Ill.2d 74, 193 N.E.2d 809.' "
      Boyle, 154 So.3d at 223 (quoting People v. Carter, 168 Ill. App. 3d 237, 248-49, 118 Ill.Dec. 983, 522 N.E.2d 653, 660 (1988) ). This Court's statement was not intended to imply that the State could establish capital murder without proving that the defendant specifically intended to kill. To the extent this Court's statement in Boyle could be so read, it is overruled.


author: WELCH, Judge.

text:
    Dock BATTLES v. STATE of Alabama
    CR-17-0044
    Court of Criminal Appeals of Alabama.
    April 27, 2018
    Dock Battles, pro se.
    Steve Marshall, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   WELCH, Judge.

Following a bench trial, Dock Battles was convicted of being in possession of a pistol when he was included in a class of certain persons forbidden to have a pistol, a violation of § 13A-11-72(a), Ala. Code 1975. On September 21, 2017, Battles was sentenced as a habitual felony offender to 21 years' imprisonment.

The evidence presented at trial indicated that on January 2, 2017, Battles's vehicle was stopped by a police officer for failing to signal a turn and for having an expired tag. Battles, who had no identification on him, gave the officer a fake name and Social Security number. The vehicle was towed, and, during an inventory search, a pistol was found under the seat.

Before trial, Battles filed several pro se motions and also sent letters to the trial judge. In his correspondence, Battles stated, among other things, that he wanted to represent himself and to waive his right to a jury trial. At a pretrial hearing on July 13, 2017, the trial court stated that Battles had informed the court that he did not wish to have an attorney representing him and that, as a result, the court had relieved the attorney who had been appointed to represent him. The trial court then asked if Battles wanted the motions he had filed before the court heard with no attorney representing him. Battles responded that he did. Battles moved to have his bond reduced, and, after hearing arguments from both parties, the trial court denied the motion. At the hearing, Battles also requested a bench trial. The trial court asked Battles to put in writing that he was waiving his right to a jury trial. On July 18, 2017, Battles filed a written waiver. The next day, the trial court entered an order granting Battles's request for a bench trial.

On August 30, 2017, the court called Battles's case for trial. The court read the indictment to Battles, briefly set forth the procedure the trial court would follow, and informed Battles of his rights during the trial. Battles told the trial court that several charges were pending but that the court had mentioned only the weapons offense. The trial court then asked the State if it wished to go forward on the six indictments at that time or just the weapons offense. The State replied that the cases had not been consolidated for trial and that it was prepared to go forward with the weapons charge before the court. Battles stated that he did not understand the nature of the weapons offense. The trial court responded:

"Okay. Well, I've already read the indictment to you. It states that you had a weapon, a Glock pistol, on or about January 2nd of 2017 at or near the 900 Block of West 19th Street in Anniston in Calhoun County. You possessed this weapon after having been convicted of a crime of violence, and that offense would have been murder."

(R. 6.)

Battles asked if the matter was "criminal jurisdiction," and the court stated that it was a criminal offense. Battles then asked if the matter was admiralty maritime or equity jurisdiction to which the court replied, "No." (R. 7.) The court provided Battles with the Code section pursuant to which he was charged. Battles stated that he did not have the statutory rules of court so he "couldn't be possibly prepared." (R. 7.) The trial court stated that it was going forward with the trial and instructed the State to call its first witness.

The State called several witnesses. After the direct examination of each witness, the court asked Battles if he wanted to ask the witness any questions. Battles stated that he did not and that he did not understand the nature of the charge against him. After the State rested its case, the court asked Battles if he wished to make a statement or call any witnesses. Battles stated:

"Well, I would just like to say that I haven't been afforded the statutory rules of court in this matter, and I don't know anything about any previous conviction because the State has failed to provide me with previous notices of any attempt to use any kind of enhancement factors. I would also like to say that the State has not presented-I haven't seen any victim or injured parties in this proceeding."

(R. 26-27.)

The trial court responded:

"All right. Thank you very much. I have been made aware that you have requested access to a law library, and you have written the Court requesting certain things. So I made the jail provide a list of all of the legal resources that were available at the jail and the times that you went to the law library at the jail and the times that you refused to go when you were offered to go.
"So, the Court does find that you have had full access to the law library at the jail, which does include the statutory rules, the criminal code, and many other resources."

(R. 27.) The court then found Battles guilty of the offense.

On appeal, Battles, acting pro se, argues, among other things, that he was not adequately advised of the charge against him, the possible penalties, and the dangers of representing himself at trial.

The Sixth and Fourteenth Amendments to the United States Constitution guarantee an accused brought to trial in a state court the right to dispense with counsel's aid and to represent himself. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; see also Art. 1, § 6, Alabama Constitution of 1901. This right is not absolute, however; there must be a showing that the waiver of counsel is knowing and intelligent.

The Alabama Rules of Criminal Procedure have incorporated and expanded the accused's protections announced in Faretta. Rule 6.1, Ala. R. Crim. P., permits the right to counsel to be waived after the trial court has ascertained that the accused knowingly and intelligently desires to forgo his right to counsel. Also, the rule mandates that the trial court inform the accused that the waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings. See Farid v. State, 720 So.2d 998, 999 (Ala. Crim. App. 1998).

In addressing the validity of a waiver of the assistance of counsel, this Court stated in Baker v. State, 933 So.2d 406 (Ala. Crim. App. 2005) :

" ' "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused-whose life or liberty is at stake-is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record."
" ' Johnson v. Zerbst, 304 U.S. 458, 465 (1938).
" '....
" 'Certainly, the provisions of Rule 6.1(b) are mandatory, and, if a defendant properly preserves and presents an argument on appeal that the trial court faltered in its application of the mandatory provisions of Rule 6.1(b), he is entitled to relief. See, e.g., Ex parte King, 797 So.2d 1191 (Ala. 2001). However, the fact that a trial court forgoes those provisions does not necessarily indicate that a defendant unknowingly, unintelligently, and involuntarily has waived his right to counsel. That is, the fact that a trial court fails to abide by the letter of Rule 6.1(b) and Faretta [v. California, 422 U.S. 806 (1975),] does not necessarily result in the defendant's being deprived of counsel and, thus, the trial court's being jurisdictionally barred from rendering a judgment. See Tomlin v. State, 601 So.2d 124, 128 (Ala. 1991) ("Although the Supreme Court in Faretta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant."). See also Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir. 1986) ("The ultimate test is not the trial court's express advice, but rather the defendant's understanding.").
" 'Whether a defendant who chooses to represent himself has knowingly, intelligently, and voluntarily waived his right to counsel can be indicated by the record or by the totality of the circumstances surrounding the waiver. See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) ("The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."). See also Clemons v. State, 814 So.2d 317 (Ala. Crim. App. 2001) (citing Monte v. State, 690 So. 2d 517 (Ala. Crim. App. 1996) ); Johnston v. City of Irondale, 671 So.2d 777 (Ala. Crim. App. 1995) ; Warren v. City of Enterprise, 641 So.2d 1312 (Ala. Crim. App. 1994) ; Siniard v. State, 491 So.2d 1062 (Ala. Crim. App. 1986). See also Faretta, 422 U.S. at 835 ("Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' Adams v. United States ex rel. McCann, 317 U.S. [269, 279 (1942) ].").'
" Coughlin v. State, 842 So.2d 30, 33-35 (Ala. Crim. App. 2002). Similarly, in Tomlin v. State, 601 So.2d 124 (Ala. 1991), the Alabama Supreme Court stated:
" 'In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that a defendant has a Sixth Amendment right to represent himself in a criminal case. In order to conduct his own defense, the defendant must "knowingly" and "intelligently" waive his right to counsel, because in representing himself he is relinquishing many of the benefits associated with the right to counsel. Faretta, 422 U.S. at 835. The defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Faretta, 422 U.S. at 835 (other citations omitted).
" 'The burden of proof in the present case is on the defendant. When a defendant has clearly chosen to relinquish his right to counsel and has asserted his right to self-representation, and on appeal asserts that he was denied the right to counsel, he has the burden of showing, " 'by a preponderance of the evidence, that he did not intelligently and understandingly waive his right to counsel.' " Teske v. State, 507 So.2d 569, 571 (Ala.Cr.App. 1987), quoting Moore v. Michigan, 355 U.S. 155, 161-62 (1957). The Supreme Court in Carnley v. Cochran, 369 U.S. 506, 516-17 (1962), held that when the record clearly shows that a defendant has expressly waived his right to counsel, the burden of proving that his waiver was not made knowingly and intelligently is on the defendant. "A waiver of counsel can only be effectuated when the defendant asserts a 'clear and unequivocal' right to self-representation." Westmoreland v. City of Hartselle, 500 So.2d 1327, 1328 (Ala.Cr.App. 1986), citing Faretta, 422 U.S. 806. If the record is not clear as to the defendant's waiver and request of self-representation, the burden of proof is on the State. Carnley, 369 U.S. at 517. Presuming a waiver from a silent record is impermissible. Carnley.
" '....
" 'Although the Supreme Court in Faretta states that a defendant should be made aware of the dangers and disadvantages of self-representation, the Supreme Court does not require a specific colloquy between the trial judge and the defendant. "The case law reflects that, while a waiver hearing expressly addressing the disadvantage of a pro se defense is much to be preferred, it is not absolutely necessary. The ultimate test is not the trial court's express advice but rather the defendant's understanding." Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986) (citations omitted). In each case the court needs to look to the particular facts and circumstances involved, "including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
" 'This court looks to a totality of the circumstances involved in determining whether the defendant knowingly and intelligently waived his right to counsel. Jenkins v. State, 482 So.2d 1315 (Ala.Cr.App. 1985) ; King v. State, 55 Ala.App. 306, 314 So.2d 908 (Ala.Cr.App. 1975), cert. denied; Ex parte King, 294 Ala. 762, 314 So.2d 912 (1975).'
" 601 So.2d 124, 128-29."

Baker v. State, 933 So.2d 406, 409-11 (Ala. Crim. App. 2005).

In determining whether the waiver in this case was made knowingly and intelligently, we also look to the factors set out in Fitzpatrick, including

" '(1) whether the colloquy between the court and the defendant consisted merely of pro forma answers to pro forma questions, United States v. Gillings, 568 F.2d 1307, 1309 (9th Cir.), cert. denied, 436 U.S. 919, 98 S.Ct. 2267, 56 L.Ed. 2d 760 (1978) ; (2) whether the defendant understood that he would be required to comply with the rules of procedure at trial, Faretta [v. California, 422 U.S.] at 835-36, 95 S.Ct. at 2541-42 ; Maynard v. Meachum, 545 F.2d 273, 279 (1st Cir. 197[6] ) ; (3) whether the defendant had had previous involvement in criminal trials, United States v. Hafen, 726 F.2d 21, 25 (1st Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed. 2d 561 (1984) ; (4) whether the defendant had knowledge of possible defenses that he might raise, Maynard, supra ; (5) whether the defendant was represented by counsel before trial, Hafen, supra ; and (6) whether 'stand-by counsel' was appointed to assist the defendant with his pro se defense, see Faretta, supra, at 834 n. 46, 95 S.Ct. at 2540-41 n. 46 ; Hance v. Zant, 696 F.2d 940, 950 n. 6 (11th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3544, 77 L.Ed. 2d 1393 (1983), overruled on other grounds, Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985).'
"[ Tomlin v. State,] 601 So.2d 120 [, 123-24 (Ala. Crim. App. 1989) ]."

Tomlin v. State, 601 So.2d 124, 129 (Ala. 1991).

With the above principles in mind, we turn to the present case. The record affirmatively indicates that Battles clearly and unequivocally expressed his desire to represent himself. This is not a situation where it is unclear whether a defendant actually wanted to represent himself. Compare Thomas v. State, 8 So.3d 1018 (Ala. Crim. App. 2008) (noting that it was not apparent whether the defendant sought to represent himself, or whether he actually sought a continuance to obtain different counsel). Further, Battles clearly and unequivocally understood that he had a right to counsel as the circuit court had appointed counsel to Battles. The record, however, also clearly and unequivocally demonstrates that the circuit court did not advise Battles of the dangers and disadvantages of waiving his right to counsel, and there was no discussion of whether Battles understood that he would be required to comply with the rules of procedure, whether he had been involved in previous criminal trials, or whether he had knowledge of possible defenses. Of the six factors discussed in Fitzpatrick and Tomlin, only one was established-that Battles had been represented by counsel before trial. Based on the totality of the circumstances, it is apparent that Battles's decision to represent himself was not knowingly, intelligently, or voluntarily made.

Furthermore, even if we were to hold that the record supported a finding that Battles knowingly, intelligently, and voluntarily waived his right to counsel, the record establishes that the trial court did not advise Battles, after accepting his waiver, that his "waiver may be withdrawn and counsel appointed or retained at any stage of the proceedings." Rule 6.1(b), Ala. R. Crim. P. We recognize that this Court may, under the totality-of-the-circumstances test, conclude that a defendant is, in fact, aware of his or her right to withdraw the waiver of counsel at any time-if the record allows such a conclusion-regardless of whether the circuit court actually advised the defendant of his or her right to withdraw the waiver. See, e.g., Powers v. State, 38 So.3d 764, 765 (Ala. Crim. App. 2009) ("We note from the onset that because the Powerses asked the trial court to allow them to withdraw their waiver of counsel, they were obviously aware of the right to do so." (Emphasis added.) ); see also Hairgrove v. State, 680 So.2d 946, 947 (Ala.Crim.App. 1995) ("Nowhere in the record does it indicate that Hairgrove was told that he could withdraw his waiver of his right to counsel, and nothing in the record indicates that he was, in fact, aware that he could do so." (Emphasis added.) ). The record in this case, however, does not demonstrate that Battles was "obviously aware" of his right to withdraw his waiver of counsel. Although the record indicates that Battles had prior arrests and convictions, the record does not demonstrate that Battles had experience with the criminal justice system to the extent that it would confer upon him an obvious awareness of his right to withdraw his waiver of counsel.

Because the record on appeal does not demonstrate that Battles knowingly, intelligently, and voluntarily waived his right to counsel, we reverse the circuit court's judgment and remand this case for a new trial. See Woodruff, supra, Barber v. City of Birmingham, 970 So.2d 786 (Ala. Crim. App. 2007), Williams v. State, 739 So.2d 549 (Ala. Crim. App. 1999), Farid v. State, supra, and Hairgrove, supra. Because we are reversing the conviction and remanding this cause for a new trial, we pretermit discussion of the remaining issues raised on appeal.

REVERSED AND REMANDED.

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

      Although Battles raises this argument for the first time on appeal, it was not waived for purposes of review. The deprivation of the right to counsel during critical stages of a criminal prosecution is a jurisdictional issue that may be raised at any time. Woodruff v. City of Pelham, 1 So.3d 157, 159 (Ala. Crim. App. 2008). See also Coughlin v. State, 842 So.2d 30, 33 (Ala. Crim. App. 2002) ("[I]t is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to jurisdictionally bar his prosecution.").


text:
    FLORIDA BOARD OF BAR EXAMINERS RE: D.A.C.
    CASE NO.: SC19-158
    Supreme Court of Florida.
    FEBRUARY 6, 2019
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and D.A.C. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of one year.
    2. During the period of probation, the applicant shall:
    (a) continue to consult with Dr. Amit Vijapura and Lindsay McKim of Vijapura Behavioral Health, or other licensed mental health provider, at least monthly, or more frequently as his mental health provider deems necessary, consultations may be via telephone every other month, but must be in person at least every other month;
    (b) follow promptly, diligently and completely all instructions by his mental health provider including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
    (c) have his mental health provider submit quarterly reports to The Florida Bar during the entire probationary period. These reports shall confirm the applicant's consultations for the preceding quarter and shall advise The Florida Bar of the applicant's continuing ability to engage in the active practice of law;
    (d) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the applicant misses a scheduled appointment without prior rescheduling; and
    (e) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), and (d) above.
    3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.
    4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.
    5. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.
    6. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.
    7. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.
    8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.
    9. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.
    A True Copy
    Test:
    John A. Tomasino
    Clerk, Supreme Court


text:
    FLORIDA BOARD OF BAR EXAMINERS, Petitioner(s)
    Re: J.N.S., Respondent(s)
    CASE NO.: SC19-152
    Supreme Court of Florida.
    FEBRUARY 6, 2019
    AMENDED ORDER
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and J.N.S. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of three years.

      Amended to remove confidential heading.

   2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on May 29, 2018, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings at such frequency as required by FLA; practice AA/NA principles in all of his affairs; and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(g) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), and (f) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.

6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. The applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. The applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court


text:
    Muhammad MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4383
    District Court of Appeal of Florida, First District.
    February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leondray L. KIRKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4354
    District Court of Appeal of Florida, First District.
    February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlton LAMAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4321
    District Court of Appeal of Florida, First District.
    February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Darrel Earl DAISE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1598
    District Court of Appeal of Florida, First District.
    February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3037
    District Court of Appeal of Florida, First District.
    February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.