text:
    EX PARTE T.K.
    (In re R.K. v. T.K.)
    2170127
    Court of Civil Appeals of Alabama.
    December 15, 2017
    Allen K. Mitchell, Dothan, for petitioner.
    Kristy M. Kirkland, Dothan, for respondent.
   THOMPSON, Presiding Judge.

T.K. ("the husband") has petitioned this court for a writ of mandamus directing the Houston Circuit Court ("the trial court") to stay all discovery matters and the divorce proceedings to which he is a party, pending a resolution of criminal charges that have been filed against him.

The materials before this court indicate the following. On March 30, 2016, a Henry County grand jury indicted the husband on a charge of sexual abuse in the first degree, in violation of § 13A-6-66, Ala. Code 1975; that action is hereinafter referred to as "the criminal matter." Specifically, the husband was charged with sexually abusing a child younger than 12 years of age. On May 22, 2017, R.K. ("the wife") filed a complaint for a divorce from the husband on the grounds of an irretrievable breakdown of the marriage and incompatibility of temperament ("the divorce proceeding"). The wife sought sole custody of the parties' minor child ("the child"). The materials before this court indicate that the child involved in the criminal matter is the parties' child.

In the divorce proceeding, the wife propounded 37 interrogatories on the husband on August 2, 2017. On August 27, 2017, the husband filed in the trial court a motion to stay the divorce proceeding until the trial in the criminal matter was completed. At that time, the trial in the divorce proceeding was scheduled for September 13, 2017, and the trial in the criminal matter was scheduled for November 6, 2017. The husband asserted that if he were required to respond to the wife's discovery requests or to testify in the divorce proceeding before the trial in the criminal matter, his answers would "potentially impinge on [his] constitutional rights" against self-incrimination, as guaranteed by the Fifth Amendment to the United States Constitution. He also stated that the outcome of the criminal matter "would either resolve the divorce matter or would change how [he] would proceed in the divorce matter."

The wife objected to the motion to stay the divorce proceeding, saying that the husband had not yet been ordered to pay any child support and that he was not providing any support to the child. She stated that, if the trial court deemed it necessary, it could grant a continuance but not a stay and require the husband to respond to the discovery requests but "allow [him] to assert his fifth amendment rights as needed in matters concerning discovery."

The husband responded to the wife's objection with a motion for a protective order, stating, among other things, that, based on the nature of the issues involved, the criminal matter and the divorce proceeding were parallel and that the wife had shown that she "intends to attack issues in the [divorce] case which are related to the criminal case."

On September 15, 2017, after a hearing on the motion to stay, the trial court entered an order requiring the husband to provide information for the calculation of child support. The trial court stated that "the husband cannot be compelled to make any statements regarding any sexual abuse by him of the minor daughter"; however, it added, nothing indicated that "responding to discovery unrelated to the criminal case will in any manner impinge upon the husband's Fifth Amendment right against self-incrimination." The trial court further stated that it had reviewed the wife's discovery requests and that they "appear[ed] to be 'standard' discovery requests in a domestic case, with no likelihood that responding by the husband will impinge upon his Fifth Amendment rights." Therefore, the trial court ordered the husband to comply with the discovery requests but indicated that he could make any good-faith objections. The trial in the divorce proceeding was also rescheduled for November 28, 2017. The husband filed the petition for a writ of mandamus on October 27, 2017, 42 days after the entry of the order at issue.

In his petition, the husband contends that the trial court abused its discretion in requiring him to respond to the wife's discovery requests in the divorce proceeding. Specifically, the husband contends that, in refusing to stay discovery, the trial court has deprived him of his Fifth Amendment right against self-incrimination in the criminal matter.

" 'Mandamus is the "proper means of review to determine whether a trial court has abused its discretion in ordering discovery, in resolving discovery matters, and in issuing discovery orders so as to prevent an abuse of the discovery process by either party.' " Ex parte Compass Bank, 686 So.2d 1135, 1137 (Ala. 1996), quoting Ex parte Mobile Fixture & Equip. Co., 630 So.2d 358, 360 (Ala. 1993). Mandamus is an extraordinary remedy and one seeking it must show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) a lack of another remedy; and (4) properly invoked jurisdiction of the court. Id. This Court has held:
" 'Because discovery involves a considerable amount of discretion on the part of the trial court, the standard this Court will apply on mandamus review is whether there has been a clear showing that the trial court abused its discretion. Rule 26(c), Ala. R. Civ. P., recognizes that the right to discovery is not unlimited, and the trial court has broad powers to control the use of the process to prevent its abuse by any party.'
" Id. (citations omitted)."

Ex parte Windom, 763 So.2d 946, 948 (Ala. 2000).

In Ex parte Rawls, 953 So.2d 374 (Ala. 2006), our supreme court addressed the issue of whether a trial court had correctly denied a husband's motion to stay divorce proceedings pending the outcome of a criminal matter pending against him. The criminal matter involved the husband's alleged violation of a protective order and his alleged stalking and harassment of the wife in that case. The Rawls court provided the framework for determinating whether a stay of divorce proceedings is necessary when criminal charges are pending against one of the parties to a divorce, writing:

"This Court stated in Ex parte Baugh, 530 So.2d 238, 241 (Ala. 1988) :
" 'Under the Fifth Amendment to the Constitution of the United States, "no person ... shall be compelled in any criminal case to be a witness against himself." The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). "The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection." Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S.Ct. 2132, 53 L.Ed.2d 1 (1977) ; McCarthy v. Arndstein, 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed.[ ] 158 (1924).'
"The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court's discretion.
" 'While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when "justice requires" that it do so "to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c), Ala. R. Civ. P.'
" Ex parte Coastal Training Inst., 583 So.2d 979, 980-81 (Ala. 1991).
"In the present case, three issues must be addressed to determine if a stay in the civil divorce proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, see Ex parte Weems, 711 So.2d 1011, 1013 (Ala. 1998) ; (2) whether the moving party's Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, see Ex parte Windom, 763 So.2d 946, 950 (Ala. 2000) ; and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So.2d at 244, and Ex parte Ebbers, 871 So.2d 776, 789 (Ala. 2003), are met."

953 So.2d at 378 (emphasis added).

Our first inquiry, therefore, is whether the criminal matter and the divorce proceeding are parallel, thereby necessitating a stay of discovery in the divorce proceeding. Citing Rawls, 953 So.2d at 380, the husband asserts that there is an overlap between the criminal matter and the divorce proceeding. He argues that because of the broad scope of the wife's discovery requests, he has been called on to answer "matters" that, he says, impinge on his Fifth Amendment rights. Therefore, he says, the two actions must be considered parallel. We note that, in his argument, the husband does not specify what those "matters" are.

In Rawls, our supreme court analyzed whether certain charges against the husband, Bryan, were parallel to issues in the divorce case between Bryan and the wife, Teresa. Our supreme court explained:

"Bryan is charged here with criminal mischief, criminal trespass, and stalking. The criminal-mischief and criminal-trespass charges stem from the incident on October 27, 2004, when he drove his truck into the garage and severely damaged the marital home and Teresa's car. This incident occurred after Teresa filed for divorce.
"Teresa's attorney stated at the hearing on Bryan's motion to stay the divorce proceedings that if those proceedings went forward he would not ask Bryan any questions concerning incidents that occurred after Teresa had filed for divorce. Therefore, concerning the charges of criminal mischief and criminal trespass, there would be no overlap in the criminal and civil cases. The civil divorce proceeding and the criminal proceedings resulting from the criminal-mischief and criminal-trespass charges are thus not parallel proceedings.
"However, the stalking charge presents a different situation. Section 13A-6-90, Ala. Code 1975, provides: 'A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking.' A prosecutor must thus prove that a defendant repeatedly followed or harassed the victim to sustain a conviction for stalking.
"Bryan argues that because, in order to prove guilt of stalking, the State must prove repeated actions, the criminal proceeding involving the stalking charge and the divorce proceeding are parallel proceedings. This Court agrees. To prove the stalking charge, the prosecution will possibly need to avail itself of evidence of alleged incidents and alleged abuse by Bryan that occurred before Teresa filed for divorce. Because that criminal proceeding and the divorce proceeding have some overlapping acts, they must be considered parallel proceedings. Therefore, Bryan's motion for a stay cannot be denied on the grounds that these are not parallel proceedings."

953 So.2d at 380.

In Rawls, our supreme court also examined Ex parte Weems, 711 So.2d 1011 (Ala. 1998), in which the trial court's denial of a motion to stay discovery in a civil action was affirmed because our supreme court determined that the civil and criminal actions were not parallel proceedings. The Rawls court explained:

"In Ex parte Weems, this Court held that the trial judge did not err in denying the motion to stay discovery in a civil action because the civil and criminal actions were not parallel proceedings. In Weems, the ex-wife hired a private investigator to determine if her telephone line had been tapped after she was awarded the marital home in the divorce settlement. While the investigator was on the property, the ex-husband came onto the property and shot the investigator in the arm; the investigator then shot the ex-husband. The ex-husband was indicted for assault with intent to murder as a result of shooting the investigator. The ex-husband then sued his ex-wife, alleging negligent hiring and supervision of the private investigator. The trial court refused to grant the ex-husband a stay in his civil proceeding because it found that the criminal action involved a determination as to whether the ex-husband shot the investigator with intent to murder, while the civil action involved a determination as to whether the ex-wife was negligent in her hiring and supervising of the investigator. Because these were not parallel proceedings involving the same act, the Weems Court denied the ex-husband's petition for a writ of mandamus."

953 So.2d at 378-79.

In Ex parte Salter, 87 So.3d 1211, 1216 (Ala. Civ. App. 2012), this court wrote:

"In Ex parte Ebbers, [ 871 So.2d 776 (Ala. 2003) ], our supreme court recognized that a trial court must make a highly fact-dependent inquiry into the particular circumstances and competing interests involved when parallel civil and criminal actions coexist. 871 So.2d at 790. The court also recognized that " '[a] motion to stay [a civil matter] during the pendency of a parallel criminal proceeding is not properly granted upon speculative or conclusory grounds.' " 871 So.2d at 788 (quoting Ex parte Hill, 674 So.2d 530, 533 (Ala. 1996) (addressing a motion to stay discovery in a civil proceeding on the basis of pending criminal charges))."

In response to the husband's petition in this case, the wife argues that the criminal matter and the divorce proceeding are not parallel and that, therefore, the trial court did not abuse its discretion in ordering the husband to respond to her discovery requests. The wife points out that her grounds for seeking a divorce are the breakdown of the marriage and incompatibility of temperament. The wife further points out that the husband is not seeking custody of the child. Therefore, the wife contends, there are no issues to be proven at trial that overlap with the elements to be proven in the criminal matter. Although this is a close issue, we agree with the wife that, because the grounds she alleges as the basis for a divorce do not involve allegations of abuse of either the child or herself or any other wrongdoing, her allegations can be proven without a determination of whether the husband was involved in sexual misconduct with the child. Therefore, we conclude that the criminal matter and the divorce proceeding are not parallel.

However, we have reviewed the wife's discovery requests and have found that one, Interrogatory 29, overlaps with the criminal matter. That interrogatory asks: "If [the husband had] ever physically abused, sexually or otherwise, [the wife] and/or the minor child, please state the dates and places such abuse occurred, the facts surrounding such abuse, and the names and addresses of any persons present on such occasions."

In Rawls, our supreme court wrote the following regarding allowing discovery to be conducted in a civil proceeding during the pendency of a parallel criminal matter:

"To sustain a moving party's Fifth Amendment right against self-incrimination, " 'it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' " [Ex parte ] Baugh, 530 So.2d [238] at 241 [ (Ala. 1988) ] (quoting Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118 (1951) ).
"This Court has found a moving party's Fifth Amendment right against self-incrimination threatened by the discovery process in a civil proceeding. In Ex parte Coastal Training [Inst., 583 So.2d 979 (Ala. 1991) ], supra, this Court discussed the differing nature of discovery in civil and criminal proceedings. The scope of civil discovery is broad, requiring almost complete disclosure; criminal discovery, on the other hand, is much more restricted. Allowing civil discovery to proceed while a criminal case is pending may allow the prosecution in the criminal case to use the broad scope of civil discovery to its advantage. Coastal Training.
"This Court has also found that a moving party's Fifth Amendment right against self-incrimination is threatened when a court requires the party to participate in a deposition or a trial, allowing the party to remain quiet only for specific questions that may incriminate him or her. In Coastal Training, this Court discussed the dangers of allowing a defendant to remain quiet only for specific questions, including the possibility of a criminal investigator's being 'planted' at the deposition in the civil proceeding, the possibility that the defendant could reveal the weak points of the case to a prosecutor by what he or she refuses to answer, and the opportunity for a prosecutor to conduct a point-by-point review of the case to find a " 'link in the chain of evidence' " that would lead to the defendant's conviction. 583 So.2d at 981 (quoting Hoffman v. United States, 341 U.S. at 486, 71 S.Ct. 814 ). Because of these dangers, it may be necessary to stay the civil proceedings in order for the defendant's Fifth Amendment rights to be protected.
"Bryan argues that 'the allegations of the criminal case are so interrelated with this civil case that [Bryan's] testimony will be akin to walking through a field of land mines-each question and answer a potential risk for use against him at a criminal proceeding.' (Bryan's brief at 11.) Bryan argues that because of the overlap in the claims of abuse before the filing of the divorce complaint and the element of a pattern of threats or abuse the prosecutor must prove to prove the stalking charge, his Fifth Amendment rights are threatened by requiring him to continue with the divorce proceeding. We agree that because of the stalking charge (see Part I of this opinion), the dangers discussed in Coastal Training exist here if Bryan is required to continue with the civil divorce proceeding."

953 So.2d at 381-82.

As mentioned, in ordering the husband to respond to the wife's discovery requests, the trial court found that those requests "appear[ed] to be 'standard discovery requests in a domestic case, with no likelihood that responding by the husband will impinge upon his Fifth Amendment rights." Nonetheless, the trial court expressly stated that, in complying with the wife's discovery requests, the husband "may make any specific and good faith objections." Therefore, the husband can tailor his objections to the discovery propounded to assert his Fifth Amendment privilege in response to Interrogatory 29, to the extent that it involves issues in the criminal matter.

The dangers that the courts in Rawls and in Ex parte Coastal Training Institute, 583 So.2d 979 (Ala. 1991), were attempting to protect against in staying discovery in civil proceedings during the pendency of parallel criminal proceedings are not present in this case. The stated grounds for divorce are not interrelated with the criminal matter so as to create any necessary overlap in the proceedings. Refusal to answer one or even a few of the written interrogatories propounded to the husband, as opposed to refusing to answer questions aloud in a deposition or at trial, where a prosecutor or "plant" may be present and which may present "a field of land mines," is highly unlikely to incriminate the husband in the criminal matter in this case or to reveal weak points that can be exploited in the criminal matter.

Our final consideration is whether the balancing test of Ex parte Baugh, 530 So.2d 238, 243-44 (Ala. 1988), weighs in favor of the husband. We first note that, in Ex parte Ebbers, 871 So.2d 776, 789-90 (Ala. 2003), our supreme court elaborated on the balancing test set forth in Baugh by adding a list of factors that have also been identified in federal cases considering motions to stay civil actions pending the resolution of criminal actions. The list now includes the following considerations, which are not exhaustive:

"1. The interest of the plaintiff in proceeding expeditiously with the civil litigation, or any particular aspect of it, and the potential prejudice to the plaintiff of a delay in the progress of that litigation.
"2. The private interest of the defendant and the burden that any particular aspect of the proceedings may impose on the defendant.
"3. The extent to which the defendant's Fifth Amendment rights are implicated/the extent to which the issues in the criminal case overlap those in the civil case.
"4. The convenience of the court in the management of its cases, and the efficient use of judicial resources.
"5. The interest of persons not parties to the civil litigation.
"6. The interest of the public in the pending civil and criminal litigation.
"7. The status of the criminal case, including whether the party moving for the stay has been indicted.
"8. The timing of the motion to stay."

871 So.2d at 789-90 (citations to federal cases omitted); see also Ex parte Rawls, 953 So.2d at 385.

Other than addressing the factors regarding whether the criminal matter and the divorce proceeding are parallel or overlapping, and the extent to which his Fifth Amendment rights would be implicated, the husband provides little or no analysis in his petition regarding the remaining factors. He makes the conclusory assertion that there would be no prejudice to the wife in delaying the divorce proceeding until after the criminal matter is determined. The wife points out that she delayed filing the divorce proceeding because she had hoped the criminal matter would be resolved. However, she says, because of the continuances that have been granted in the criminal matter, and the fact that the husband is not currently supporting the child, the delay in going forward with the divorce proceeding is causing her prejudice.

As discussed, the criminal matter and the divorce proceeding are not parallel proceedings and do not involve overlapping issues. Only 1 of the 37 interrogatories propounded on the husband appears to implicate his right against self-incrimination, and the husband can object to that interrogatory without triggering the concerns raised in Rawls and Coastal Training. As the trial court recognized, the delay in resolving the divorce is costing the wife the opportunity to receive child support from the husband. Contrary to the husband's assertion that the outcome of the criminal matter will resolve the divorce proceeding, it does not appear that the wife's grounds for divorce, i.e., an irretrievable breakdown of the marriage and incompatibility of temperament, will be resolved based on the outcome of the criminal matter. In considering the factors set forth above, we conclude that the balance weighs in favor of the wife, i.e., that a stay of discovery in the divorce proceeding is not necessary.

In reviewing the materials before us and considering the extent to which the husband's Fifth Amendment rights are implicated in responding to the discovery pending in the divorce proceeding, we conclude that the trial court did not abuse its discretion in ordering the husband to comply with the wife's discovery requests in the divorce proceeding. Accordingly, the husband's petition for a writ of mandamus is due to be denied.

The wife has requested an attorney fee in connection with the husband's petition, saying that the relief sought was done so "negligently and vexatiously, and with the full knowledge that counsel for the [wife] took her case on a pro bono/low bono basis." However, based on the materials provided to this court, we cannot conclude that those were the reasons for the husband's decision to file the petition. Accordingly, the wife's request for an attorney fee in connection with this petition for a writ of mandamus is denied.

PETITION DENIED.

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

      On November 17, 2017, in a separate order, this court denied the husband's petition to the extent it requested a stay of the divorce trial, scheduled for November 28, 2017, pending the resolution of the criminal matter. There was no evidence in the materials before this court indicating that the husband had requested a stay of the November 28, 2017, trial in the trial court. Thus, there was no adverse ruling for this court to review as to that issue.

      Although the indictment charges the husband with a violation of § 13A-6-66, we note that the language used within the indictment, i.e., that the husband, being 16 years of age or older, subjected a child younger than 12 years of age to sexual contact, is a violation of § 13A-6-69.1, Ala. Code 1975. Section 13A-6-66 was amended effective July 1, 2006, to remove subsection (a)(3) (sexual abuse of a child less than 12 years old by one aged 16 years or older); that subsection was placed in 13A-6-69.1, and the offense was increased from a Class C felony to a Class B felony.

      The divorce complaint was filed in the Henry Circuit Court but was transferred to the Houston Circuit Court at the husband's request. The wife did not object to the transfer.


source: Caselaw Access Project

author: WELCH, Judge.

license: Public Domain

text:
    John Joseph BANVILLE v. STATE of Alabama
    CR-15-1384
    Court of Criminal Appeals of Alabama.
    March 17, 2017
    Aimee C. Smith, Montgomery, for appellant (withdrew 04/05/2017); and Thomas M. Goggans, Montgomery, for appellant.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen. for appellee.
   WELCH, Judge.

John Joseph Banville appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged Banville's February 22, 2012, conviction for sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975, and his resulting sentence of 20 years' imprisonment.

On February 26, 2013, Banville filed his first Rule 32 petition using the form found in the appendix to Rule 32, Ala. R. Crim. P., and paid a filing fee. In that petition, Banville selected the following grounds provided on the form: 12(A)(9), denial of effective assistance of counsel; and 12(F), the failure of the petitioner to appeal within the prescribed time, which failure was without fault on petitioner's part.

In the supplement to this first Rule 32 petition, Banville alleged that, after he told his trial attorney that he wanted to appeal, his trial attorney told him that he did not do appellate work. Thereafter, he hired another attorney as appellate counsel. That attorney filed a motion for a new trial that was denied on May 9, 2012. Banville further alleged that his appellate counsel was given notice of the dismissal by e-mail, but that Banville was never notified of the dismissal by him, and only discovered it himself while doing research on his case in the prison law library. Banville alleged that he immediately contacted his appellate attorney and was informed that the attorney did not represent him on the appeal, that no appeal had been filed, and that his time to appeal had expired. Banville alleged last that he received ineffective assistance of appellate counsel and was deprived of his right to appeal through no fault of his own.

The circuit court granted relief on Banville's first petition, allowing an out-of-time appeal as provided for by Rule 32.1(f). Banville then appealed his conviction. On appeal, this Court affirmed Banville's conviction and sentence in an unpublished memorandum issued on May 22, 2015. See Banville v. State (No. CR-13-1346), 213 So.3d 607 (Ala. Crim. App. 2015) (table).

Acting through counsel, Banville on April 18, 2016, filed his second petition using a form following the Rule 32 form found in the appendix to Rule 32, Ala. R. Crim. P., and paid a filing fee.

In a supplement to the petition, Banville raised only claims alleging ineffective assistance of his trial counsel.

Without waiting for a response by the State, the circuit court issued an order dismissing the petition:

"ORDER
"This cause comes before the Court on the Petitioner's Petition for Relief from Conviction or Sentence pursuant to Rule 32, Ala. R. Crim. P. The Petitioner has pre-paid the required civil docketing fee and the Court has taken jurisdiction over the Petition. This is the Petitioner's second Rule 32 Petition attacking the judgment arising out of the underlying trial and making a claim of ineffective assistance of counsel, 'In no event can relief be granted on a claim of ineffective assistance of trial or appellate counsel raised in a successive petition.' Rule 32.2(d). Because this is a successive petition seeking relief on a claim of ineffective assistance of counsel, no relief is available. The Petition is DENIED. The Clerk is directed to give immediate notice to the District Attorney and Petitioner."

(C. 21.)

Banville filed a motion to reconsider and attached a copy of the court's order in case number CC-07-206.60, in which the court had granted Banville's previous Rule 32 petition requesting relief under Rule 32.1(f), Ala. R. Crim. P., by allowing Banville to file an out-of-time appeal of his conviction.

"MOTION TO RECONSIDER AND SET ASIDE ORDER
"On July 15, 2016, this Court entered an order dismissing Petitioner John Joseph Banville's Rule 32 petition. That order was based upon a premise that the petition was a successive petition alleging ineffective assistance of counsel, and, thus, barred by Rule 32.2(d), Ala.R.Crim.P. That premise is faulty. While the petition is a second petition, it is not a successive petition. Ala.R.Crim.P. 32.2 provides:
" 'Successive Petitions. If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule....'
"In Banville's situation, the first petition did not go to the judgment's merits but merely sought an out of time appeal pursuant to Rule 31.1(f) [sic], Ala.R.Crim.P. which was granted. (See attached.) Accordingly, the instant Rule 32 petition is not due for dismissal as a successive petition. IN LIGHT OF THAT, Petitioner John Joseph Banville moves this Court to reconsider its order of July 15, 2016, and to set it aside and proceed to address the merits of his Rule 32 petition after an evidentiary hearing pursuant to Rule 32.9, Ala.R.Crim.P."

(C. 22.)

The circuit court denied the motion to reconsider on August 4, 2016.

Standard of Review

When reviewing a circuit court's summary dismissal of a postconviction petition " '[t]he standard of review this Court uses ... is whether the [circuit] court abused its discretion.' " Lee v. State, 44 So.3d 1145, 1149 (Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So.2d 1041, 1049 (Ala. Crim. App. 2005) ). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996)." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001).

Moreover, except for utilizing on appeal a preclusionary bar under circumstances which are not present in this case, "when reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason." Bush v. State, 92 So.3d 121, 134 (Ala. Crim. App. 2009).

Because only questions of law are presented, we review the circuit court's decision in this Rule 32 proceeding de novo.

On appeal, Banville first argues that the circuit court erred in dismissing his petition as a successive petition, then reasserts his claims of ineffective assistance of trial counsel. Because the resolution of the lawfulness of the circuit court's order finding that Banville's claims were precluded by Rule 32.2(d) is dispositive, discussion of Banville's other claims is pretermitted.

Both Banville and the State base the arguments in their briefs on reasoning drawn from the existing authority explaining the preclusionary bar set out in Rule 32.2(b). There appears to be no legal authority setting the issue whether a second petition should be considered a successive petition under either Rule 32.2(b) or 32.2(d), when the only relief sought in the first petition was the grant of an out-of-time appeal under Rule 32.1(f). Therefore, this case presents an issue of first impression.

Analysis

Rule 32.1, Ala. R. Crim. P., states:

"Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
"....
"(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner's part."
Rule 32.2, Ala. R. Crim. P., states:
" Rule 32.2. Preclusion of Remedy
"....
"(b) Successive Petitions. If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.
"....
"(d) Claims of Ineffective Assistance of Counsel. Any claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable. In no event can relief be granted on a claim of ineffective assistance of trial or appellate counsel raised in a successive petition."

The relief sought by a petitioner pursuant to Rule 32.1(f) seeking an out-of-time appeal differs completely from the relief from a conviction and sentence, or an illegal sentence, that a petitioner would seek under Rules 32.1(a) through 32.1(e). A petition seeking relief under Rule 32.1(f) does not challenge the underlying conviction or sentence. It only formally requests the trial court to find that the petitioner had failed to file an appeal from a conviction and sentence, or a previous Rule 32 petition, because the petitioner had failed to perfect an appeal through no fault of his own.

In this case Banville's first petition, which sought only an out-of-time appeal under Rule 32.1(f), did allege that his counsel was ineffective for failing to file an appeal from his conviction. However, the purpose of that allegation was to establish that his failure to timely file an appeal was without fault on his part. It did not challenge the effectiveness of his trial counsel's performance in the trial. The only claim against his appellate counsel was the allegation that counsel had failed to timely file a notice of appeal. He could not have otherwise challenged the effectiveness his appellate counsel's performance, because no appeal had been instituted at the time he filed his first petition.

The circuit court granted relief in Banville's first petition solely on his claim that he was entitled to an out-of-time appeal under Rule 32.1(f). Thereafter, Banville's appeal was decided, and his conviction and sentence were affirmed. At that time, Banville's case stood in the same posture in which it would have stood had Banville been able to timely file an appeal from his conviction. Until he was awarded relief under Rule 32.1(f), including a transcript of the trial, it would have been impracticable to raise any issues concerning his trial counsel's performance during the trial.

It would be unfair for this court to hold that, by merely seeking and receiving an out-of-time appeal, a petitioner would forfeit any opportunity to challenge the effectiveness of counsel at trial or on the appeal allowed by the circuit court's grant of relief under Rule 32.1(f). Rule 32.2(d) does say: "Any claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable." We should not read this ground of preclusion to refer to a previous petition alleging a claim under Rule 32.1(f), when the only allegation of the petitioner that alleged ineffectiveness of counsel was that his counsel had failed to timely perfect an appeal of his case, when that allegation was made in order to establish that the failure to appeal was without fault on the part of the petitioner. It is more reasonable to interpret this provision as precluding only a second or later petition where a petitioner has previously challenged a judgment of conviction or sentence by alleging that his counsels's handling of a trial or appeal in the first petition was ineffective and distinguish it from a first petition containing a claim alleging that counsel failed to timely perfect an appeal as a part of an allegation that the failure to appeal his case was not the fault of the petitioner.

Therefore, we find that the circuit court erred in finding that Banville's petition was precluded under 32.2(d). Accordingly, we reverse its judgment and remand this case to the circuit court for that court to consider Banville's claims that his trial counsel rendered ineffective assistance. The circuit court may allow the State to file a response to the petition as provided in Rule 32.7(a). Should the trial court deem it necessary to hold an evidentiary hearing addressing Banville's claims, the court may take evidence as provided in Rule 32.9(a), Ala. R. Crim. P. If the circuit court determines that Banville is entitled to relief, it may order such relief. The circuit court's return to remand shall include a transcript of those proceedings. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 90 days after the release of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Kellum, J., concurs in the result.

      The Court of Criminal Appeals may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala. Crim. App. 1992) ; Ex parte Salter, 520 So.2d 213, 216 (Ala. Crim. App. 1987). This Court dismissed Banville's petition for a writ of mandamus in an unpublished memorandum issued on July 9, 2014. See Ex parte Banville No. CR-13-0901, 190 So.3d 585 Ala. Crim. App. 2014 (table). The petition is contained in the record of that case.

      Rule 32.2(b) precludes a successive petition where the petitioner has previously "filed a petition that challenges any judgment." Because a petition seeking an out-of-time appeal pursuant to 32.1(f) does not challenge any judgment, a second petition following it would not be successive under the plain language of Rule 32.2(b).

      Cf. Arrington v. State, 716 So.2d 237, 239 (Ala. Crim. App. 1997).

      Cf. Elliott v. State, 60 So.3d 951 (Ala. Crim. App. 2010).
      * Note from the reporter of decisions: On October 6, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On November 9, 2016, that court denied rehearing, without opinion. On December 8, 2017, the Supreme Court denied certiorari review, without opinion (1170127).


author: BURKE, Judge.

text:
    Mollie M. BEARDEN and Donald Terry Bearden v. STATE of Alabama
    CR-15-1491
    Court of Criminal Appeals of Alabama.
    August 11, 2017 Rehearing Denied October 6, 2017 Certiorari Denied December 8, 2017
    Alabama Supreme Court 1170065
    James Gordon Thomas, Birmingham; and Jason Matthew Jackson, Alexander City, for appellants.
    Luther Strange, atty. gen., and Jean A. Webb and James R. Houts, asst. attys. gen., for appellee.
   BURKE, Judge.

Mollie M. Bearden and Donald Terry Bearden were convicted of reckless endangerment, a violation of § 13A-6-24, Ala. Code 1975, following a bench trial in the Talladega District Court. The Beardens were sentenced to six months in jail. However, their sentences were suspended, and each was ordered to serve six months of unsupervised probation. Additionally, the Beardens were each ordered to pay a $500 fine and court costs. This appeal follows.

The evidence at trial indicated that the Beardens' neighbor, Jill Hyner, left her home in the early morning hours of April 21, 2016, to go to work. Hyner testified that someone shined a bright spotlight from the Beardens' property into her vehicle as she pulled out of her driveway and drove to a stop sign at the end of her street. Hyner stated that the beam of light was initially a single beam but that, at some point, changed to a "strobe light." (R. 24.) The light, according to Hyner, blinded her and hindered her ability to see other vehicles on the road. Hyner testified that this type of incident had happened on other occasions when she left her home in the mornings. A few days before the incident in question, Hyner contacted police who advised her to change her schedule to see if the incidents would stop. However, Hyner testified that someone on the Beardens' porch continued to shine a spotlight into her car despite her altered schedule. Based on that allegation, two police officers set up surveillance in front of the Beardens' house on the morning of April 21, 2016.

Jason Murray, an officer with the Talladega County Drug Task Force, testified that he and another officer sat in the woods across from the Beardens' house in the early morning hours of April 21, 2016. Officer Murray testified that, at approximately 5:15 that morning, Hyner got into her car and left for work. According to Officer Murray, someone from the Beardens' porch then began to shine a light across the fence toward Hyner's house. Officer Murray stated: "As soon as [Hyner] got into the car and pulled out of her driveway, they turned the flashlight back on at the corner of the fence and followed her all the way down to the stop sign until she turned to go out of sight." (R. 74-75.) Officer Murray testified that the beam of light was shining into the driver's side window of Hyner's car and alternated between a single beam of light and a strobe light. Officer Murray and his partner then came out of the woods and approached the Beardens' porch, where they discovered Mollie M. Bearden holding a flashlight. Officer Murray placed Mrs. Bearden under arrest for reckless endangerment.

Further testimony revealed that, on the morning following Mollie Bearden's arrest, Hyner again left for work early in the morning. Hyner stated that, as she drove to work, Donald Terry Bearden followed her in his vehicle for approximately 10 miles. According to Hyner, Donald Bearden followed her very closely and continuously shined his high beams into her car. Hyner stated that the lights caused her to have difficulty seeing road signs and oncoming traffic. Hyner also testified that, at one point, Donald Bearden pulled his vehicle alongside her car causing her to believe that he might try to run her off the road. Additional testimony revealed that the road on which they were traveling was a two-lane road; thus, Bearden was driving in the wrong lane when he pulled alongside Hyner. He was later arrested and charged with reckless endangerment.

I.

On appeal, the Beardens first argue that the trial court erred when it denied their motion to dismiss the cases against them. According to the Beardens, the complaints charging them with reckless endangerment was insufficient because, they claim, it failed to state particular facts regarding the offense. Specifically, the Beardens claimed that the complaint did not disclose the essential facts of the "reckless conduct" they were charged with. Therefore, the Beardens say, they lacked notice of the charges against them.

" '[T]his court has held that a complaint that substantially tracks the language of the statute is sufficient to inform the defendant of the charges against which he must defend.' " Gentile v. City of Guntersville, 589 So.2d 809, 810 (Ala. Crim. App. 1991), quoting State v. Franklin, 541 So.2d 593 (Ala. Crim. App. 1989). The complaint against Mollie Bearden alleged that, "on or about the 21st day of April, 2016, one [Mollie M. Bearden] did engage in reckless conduct, which created a substantial risk of injury to another person to-wit: [Jill Hyner], in violation of § 13A-6-24(a), of the Code of Alabama." (C. 37.) The complaint against Donald Bearden alleged that, "on or about the 22nd day of April, 2016, one [Donald Terry Bearden] did engage in reckless conduct, which created a substantial risk of injury to another person to-wit: [Jill Hyner], in violation of § 13A-6-24(a), of the Code of Alabama." Section 13A-6-24(a), Ala. Code 1975, provides: "A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." Thus, the complaints against the Beardens substantially tracked the language of the statute they were charged with violating along with the date the conduct was alleged to have occurred and the victim's name. Accordingly, the complaint was sufficient to put the Beardens on notice of the charges they were called to defend.

Moreover, the record refutes any assertion that the Beardens were not aware of the specifics of the charges against them. As noted, Mollie and Donald Bearden were arrested on April 21, 2016, and April 22, 2016, respectively. Defense counsel entered a notice of appearance seven days after Donald Bearden's arrest on April 29, 2016, and subsequently filed several motions. The Beardens then filed a subpoena request with the Talladega County sheriff's office seeking "any and all incident reports filed by Jill Hyner from January 1, 2014 to present." (C. 46.) Additionally, the Beardens filed a subpoena request with Hyner's employer seeking "Jill Hyner's work hours for each day worked during the period of March 21, 2016 until May 21, 2016." (C. 60.) Further, Mollie Bearden testified that, immediately after she was released from jail, she downloaded video footage from her home-surveillance system depicting the incident in question and provided that footage to her attorney. (R. 118.) Despite being in possession of that video footage before trial, defense counsel told the trial court: "As of this day, I don't know what the allegation is. My clients don't know what the allegation is." (R. 8.) However, when defense counsel played the video for the trial court, he stated, "Judge, I think the video itself is about thirty minutes. But I know where the action starts, so I can cut to the chase." (R. 119.) These facts belie any contention that the Beardens were unaware of the charges they were called to defend.

In Bexley v. State, 705 So.2d 549, 551 (Ala. Crim. App. 1997), this Court addressed a similar issue and concluded that "[t]he appellant has failed to show how his substantial rights were prejudiced by an amendment to the charge against him." In Bexley, this Court examined the record and, based on the pleadings the appellant filed, was "not persuaded by the appellant's claim that he did not have reasonable notice of the charge against him when he proceeded to circuit court." Id. Here, as in Bexley, we have examined the record, and we are convinced that the Beardens were fully aware of the charges against them and that they suffered no prejudice as a result of the trial court's denial of their motion to dismiss the complaints. See also Rule 45, Ala. R. App. P. ("No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case ... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.").

II.

Next, the Beardens argue that the trial court erred when it denied their motions for judgments of acquittal because, they claim, the evidence was insufficient to sustain their convictions. This Court has held:

"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala. Crim. App. 1978), cert. denied, 368 So.2d 877 (Ala. 1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala. Crim. App.), cert. denied, 387 So.2d 283 (Ala. 1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala. Crim. App. 1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala. Crim. App. 1983) ; Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969) ; Willis v. State. A verdict of conviction will not be set aside on the ground of insufficiency of the evidence unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this court that it was wrong and unjust. Duncan v. State, 436 So.2d 883 (Ala. Crim. App. 1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984) ; Johnson v. State, 378 So.2d 1164 (Ala. Crim. App.), cert. quashed, 378 So.2d 1173 (Ala. 1979)."

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala. Crim. App. 1993).

"A person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." § 13A-6-24(a), Ala. Code 1975. "A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." § 13A-2-2(3), Ala. Code 1975. As noted above, Jill Hyner testified that someone on the Beardens' property shined a spotlight into her vehicle while she was driving causing her to become "blinded." (R. 23.) Officer Murray witnessed this event and subsequently discovered Mollie Bearden holding a flashlight on her front porch. Viewing this evidence in the light most favorable to the prosecution, the trial court could have concluded that Mollie Bearden shined a spotlight into Hyner's vehicle, creating a substantial risk that Hyner would wreck her vehicle causing serious physical injury. Based on Hyner's testimony that this type of incident had happened on numerous occasions, the trial court could have determined that Mollie Bearden knew that her conduct created such a risk but that she consciously disregarded it. Accordingly, the trial court did not err in denying Mollie Bearden's motion for a judgment of acquittal.

As to Donald Bearden, the testimony at trial indicated that he followed closely behind Hyner's for approximately 10 miles with his high beams shining into the passenger compartment of Hyner's vehicle. Again, Hyner testified that the bright lights "blinded" her. (R. 27.) Accordingly, there was sufficient evidence to show that Donald Bearden's conduct created a substantial risk that Hyner would wreck her vehicle and be seriously injured. Thus, the trial court did not err when it denied Donald Bearden's motion for a judgment of acquittal.

III.

In its brief on appeal, the State argues-for the first time-that the Beardens' appeal is not properly before this Court because, it says, the record is not adequate as required by Rule 30.2(1), Ala. R. Crim. P., which provides: "An appeal from the district or municipal court shall go directly to the appropriate appellate court: (1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury." According to the State, "nothing in the record establishes that the district court authorized an official transcript, appointed an official court reporter or special roving court reporter, or administered the required oath." (State's brief, at 16), citing Ex parte French, 547 So.2d 547 (Ala. 1989). Further, the State argues, "there is no evidence that the private court reporter retained by the Beardens was accepted by agreement of both parties." (State's brief, at 16), citing Ex parte Burnsed, 844 So.2d 526, 528 (Ala. 2001).

However, the record does not suggest, as the State contends, that the court reporter was not an official court reporter authorized by the district court. In reviewing the entire record, there are several instances suggesting that the court reporter who prepared the transcript was an official court reporter authorized by the district court. On the first page of the transcript, the district court judge began the proceedings by stating: "We're on the Record." (R. 6.) Additionally, the district court judge who presided in this matter allowed the court reporter to interrupt the trial numerous times to clarify a witness's answer. See ( R. 37, 40, 43, 45, 60, 61, 68, 152.) Finally, the Beardens completed a "Reporter's Transcript Order" and included it with the docketing statement to this court. (C. 72.) These facts indicate that the court reporter who prepared the transcript was an official court reporter authorized by the district court. Nothing in the record, besides the State's bare assertion on appeal, suggests otherwise. Obviously, it is the State's burden on appeal to ensure that the facts that support its argument are included in the record. Moreover, there has been no showing or indication, at trial or on appeal, that the record taken by the court reporter was not adequate to support an appeal to this Court.

Even if the State were correct in its assertion that the court reporter in this case was not an official court reporter under Alabama law, the record is nonetheless adequate under Rule 30.2(1), Ala. R. Crim. P. The State appears to argue that, in order for the record to be adequate in the present case, there must be some evidence that the Beardens made a formal demand for a court reporter and that the parties agreed to having a court reporter transcribe the proceedings. However, Rule 30.2(1), Ala. R. Crim. P., contains no such requirements nor does the precedent cited by the State. Under Rule 30.2(1), Ala. R. Crim. P., an appeal from the district court, such as this one, shall go to the appropriate appellate court so long as there is "an adequate record or stipulation of fact." Although a stipulation of fact clearly requires an agreement between the parties, an adequate record is supplied when a record is presented without objection or is found to be adequate by a court.

The State appears to cite Ex parte French, 547 So.2d 547 (Ala. 1989), for the principle that an unofficial transcript prepared by a court reporter who has not been appointed in compliance with Alabama law, see § 12-17-270 et seq., lacks guarantees of accuracy, impartiality, and authenticity. However, French and the cases cited therein dealt with situations in which an unofficial transcript was being offered as substantive evidence in a trial or other proceeding. Specifically, the transcript in question in French was being offered as an exhibit to support the defendant's motion for a summary judgment. The Alabama Supreme Court held "that an unofficial transcript, prepared by a person not duly appointed as an official court reporter pursuant to the provisions of Ala. Code 1975, §§ 12-17-270 through 277, or approved by the adverse party or parties, is inadmissible in a subsequent trial." 547 So.2d at 549 (emphasis added).See also Woods v. Postal Telegraph-Cable Co., 205 Ala. 236, 87 So. 681 (1920) (holding that a transcript of a prior proceeding prepared by an unofficial stenographer was hearsay and, therefore, inadmissible at a later trial). Thus, there existed a heightened constitutional standard in those cases because the transcripts were being offered as exceptions to the rule against hearsay and, consequently, required substantial guarantees of trustworthiness or other indicia of reliability. In the present case, the only requirement is that the record be "adequate." Additionally, the relevant parties in those cases objected to the admission of the transcripts in the trial court. Accordingly, French is distinguishable from the present case.

The facts in the present case are nearly identical to the situation in Ex parte Boswell, 558 So.2d 918 (Ala. 1990). After Boswell filed his notice of appeal from a conviction in the district court, the State " 'objected to the record.' " Id. at 919. When the district court then failed to process his appeal, Boswell petitioned this Court for a writ of mandamus directing the district court to process his appeal. The Alabama Supreme Court reversed this Court's denial of that petition and held:

"In the case before us, the proceedings were recorded by a court reporter; the State was represented throughout the proceeding by an assistant district attorney, who offered no objection to the manner of recording the proceeding. After Boswell filed a notice of appeal to the Alabama Court of Criminal Appeals, the trial court noted that the State 'objects to the record.' However, there has been no showing by the State that the record is defective, not substantially true and correct, or otherwise not 'adequate.' See Dobbs v. State Dept. of Pensions & Security, 484 So.2d 1052 (Ala. 1984).
"We have examined the record in this case, including a transcript of the proceedings before the trial court, and we find that the record is an 'adequate record' within the meaning of § 12-12-72(1)."

558 So.2d at 919-20 (footnote omitted).

As in Boswell, the State in the present case "was represented throughout the proceeding by an assistant district attorney, who offered no objection to the manner of recording the proceeding." Id. at 919. The State had several opportunities to object to the court reporter in the district court. First, the State could have objected before or during the trial. The State also could have objected when the court reporter filed the transcript with the circuit clerk. Finally, the State had an opportunity to object when the circuit clerk certified the record on appeal to this Court. However, the State failed to do so. Moreover, the State has not, at trial or on appeal, shown or even alleged "that the record is defective, not substantially true and correct, or otherwise not 'adequate.' " Id. at 920. Accordingly, the State waived any claim to the adequacy of the record.

If the State wishes to object to a private court reporter or later to some aspect of the transcript, then the district court could make a determination concerning the adequacy of the transcript. However, " 'to preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.... An issue raised for the first time on appeal is not correctly before this court.' " McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995), quoting Buice v. State, 574 So.2d 55, 57 (Ala. Crim. App. 1990). If the transcript stands as accurate with no specific objection, it is adequate to support an appeal. The State, in this case, was surely aware of the court reporter's presence, allowed the reporter to transcribe the bench trial without objection, allowed the record to be certified by the circuit clerk to this Court, and now submits for the first time on appeal that the court reporter should not have been allowed to prepare a transcript for a direct appeal to this Court. Accordingly, the State has waived any contention that the record is not adequate because the court reporter was not properly appointed according to both parties.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

Joiner, J., concurs. Windom, P.J., concurs in the result. Kellum, J., dissents, with opinion. Welch, J., joins in dissent.

Because I believe that the record was inadequate to confer jurisdiction of this appeal on this Court pursuant to Rule 30.2, Ala. R. Crim. P., I must respectfully dissent.

An appeal directly from the district court to this Court must be perfected in accordance with Rule 30.2, Ala. R. Crim. P. See also § 12-12-72, Ala. Code 1975. Rule 30.2 states:

"An appeal from the district or municipal court shall go directly to the appropriate appellate court:
"(1) If an adequate record or stipulation of fact is available and the right to a jury trial is waived by all parties entitled to trial by jury, or
"(2) If the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question."

The requirements set forth in Rule 30.2 must be satisfied before this Court acquires jurisdiction of an appeal from a district court or municipal court. See Lucas v. City of Tuscaloosa, 680 So.2d 1027 (Ala. Crim. App. 1996).

The State contends that the Beardens' appeal should be dismissed because, it says, they have failed to comply with Rule 30.2(1), Ala. R. Crim. P., in that the record is inadequate and no stipulation of fact was made in preparation for appeal. Although the record contains a transcript of the trial proceedings, the State contends that the transcript was prepared by a private court reporter who was not appointed by the district court, was not administered an oath, or was not authorized to prepare an official transcript of the proceedings. Further, the State contends that there was no evidence indicating that the private court reporter was accepted by an agreement of the parties or that the Beardens demanded the district court provide a court reporter or a reporter's transcript in this case.

In response to the State's challenge to the adequacy of the record, the Beardens contend that the court reporter's transcript provides an adequate record on appeal. Citing Ex parte Boswell, 558 So.2d 918 (Ala. 1990), the Beardens contend that the State did not object during or after trial to the court reporter's transcribing the proceedings in district court. Further, the Beardens contend that the State made no motion or objection to the use of the court reporter's transcript during the pendency of this appeal, and the State did not challenge the accuracy of the court reporter's transcript contained in the record on appeal. See Ex parte Burnsed, 844 So.2d 526 (Ala. 2001).

In Ex parte French, 547 So.2d 547 (Ala. 1989), a case relied on by the State, the petitioner filed an action in the district court alleging breach of contract. The district court ruled against French, and he appealed to the circuit court for de novo proceedings. The circuit court considered a transcript of the district-court proceedings that was transcribed not by an official court reporter but by a court reporter employed by French. The Alabama Court of Civil Appeals affirmed the circuit court's judgment, but the Supreme Court reversed the Court of Civil Appeals' affirmance, holding:

"[A]n unofficial transcript, prepared by a person not duly appointed as an official court reporter pursuant to the provisions of Ala. Code 1975, §§ 12-17-270 through -277, or approved by the adverse party or parties, is inadmissible in a subsequent trial. The appointment by the court of an official reporter, § 12-17-270, and the oath taken by the reporter, § 12-17-273, serve as protections to both parties, ensuring the accuracy and impartiality of the reporting. On the other hand, a transcript by a reporter hired and paid by one party has no such guarantee of authenticity, and the opposing party is provided no protection from possible errors or even fraud."

French, 547 So.2d at 549.

In Ex parte Boswell, 558 So.2d 918 (Ala. 1990), Boswell was convicted of possession of marijuana in the second degree and sought to appeal directly from the district court to this Court. The district court "denied" Boswell's notice of appeal, and Boswell petitioned this Court for a writ of mandamus. Although it is not clear from the opinion, it appears that the "denial" of the appeal was based on the State's objection to the record and the State's failure to waive the right to a jury trial. Addressing the State's objection to the record, the Supreme Court stated:

"[ Section 12-12-72, Ala. Code 1975,] does not provide for an 'objection to the record' but rather requires in the alternative 'an adequate record' or a 'stipulation of facts.' In the case before us, the proceedings were recorded by a court reporter; the State was represented throughout the proceeding by an assistant district attorney, who offered no objection to the manner of recording the proceeding.1 After Boswell filed a notice of appeal to the Alabama Court of Criminal Appeals, the trial court noted that the State 'objects to the record.' However, there has been no showing by the State that the record is defective, not substantially true and correct, or otherwise not 'adequate.' See Dobbs v. State Dept. of Pensions & Security, 484 So.2d 1052 (Ala. 1984).
"1 It appears that Boswell and the State each agreed to pay one-half the cost of hiring the court reporter. Thus, this case is factually different from Ex parte French, 547 So.2d 547 (Ala. 1989)."

Boswell, 558 So.2d at 919-20. After examining the record, our Supreme Court concluded that the record was adequate within the meaning of § 12-12-72, Ala. Code 1975.

In Ex parte Burnsed, 844 So.2d 526 (Ala. 2001), the defendant, who was charged with a misdemeanor offense of driving under the influence, was convicted in municipal court and sought to appeal directly to this Court. This Court dismissed the appeal, finding the record inadequate on the basis that the transcript was prepared by a court reporter hired by the defendant and not appointed by the trial court and, therefore, was not an official record. Burnsed, 844 So.2d at 527. On appeal, the Alabama Supreme Court addressed whether a transcript of municipal-court proceedings recorded by a court reporter hired by the defendant constituted an adequate record for purposes of an appeal under Rule 30.2(1), Ala. R. Crim. P., and recognized:

"Section 12-17-1 et seq., including in particular § 12-17-270 (which authorizes the appointment by the court of an official court reporter) apply in circuit court and district court only. Those Code sections do not apply to municipal courts. Unlike circuit courts and district courts, municipal courts are not courts of record. Ex parte Town of Gulf Shores, 412 So.2d 1259 (Ala. Crim. App. 1982). While a defendant who demands a court reporter is entitled to one in the circuit court or the district court, § 12-17-270, Marquis v. State, 439 So.2d 197 (Ala. Crim. App. 1983), and Ex parte White, 403 So.2d 292 (Ala. 1981), no rule or statutory law requires a municipal court to appoint an official court reporter upon a defendant's request. See, e.g., Parker v. City of Tuscaloosa, 698 So.2d 1171 (Ala. Crim. App. 1997)."

Burnsed, 844 So.2d at 528 (emphasis in original).

It is undisputed that the Beardens were tried in the district court and that they hired a private court reporter to record the proceedings in the district court. Unlike the case in Boswell, however, there is no evidence in the record indicating that the State shared in the costs of hiring the court reporter with the Beardens. Furthermore, the lack of an objection on the part of the State to the hiring of the private court reporter and the lack of an objection by the State regarding the accuracy of the record has no effect in light of the fact that the court reporter was hired solely by the Beardens. Further, the Beardens' reliance on Burnsed is unavailing, given that the Beardens were tried and convicted in the district court and not in the municipal court as was the defendant in Burnsed. As the Supreme Court noted in Burnsed, district courts are courts of record and, as such, are authorized to appoint a court reporter. The record does not indicate that the Beardens demanded that the district court provide a court reporter or a reporter's transcript. Further, there is no indication that the court reporter who transcribed the trial in this case was duly appointed by the district court as an official court reporter or was administered an oath. See French, supra. Although French was a civil case involving the admissibility of an unofficial transcript at a subsequent trial, the concerns regarding the accuracy and impartiality of the reporting in a transcript that were expressed by the Supreme Court in French also exist in the context of criminal cases. Indeed, given that in a criminal case the defendant could face the loss of his liberty through incarceration, any concerns regarding the accuracy and impartiality of the reporting in a transcript are even more compelling.

In this case, the record contains a transcript prepared by a private court reporter hired by the Beardens to transcribe proceedings in the district court. There is no indication in the record that the court reporter was administered an oath or was otherwise authorized to transcribe the proceedings in the district court. Although the main opinion points to instances suggesting that the court reporter was the official court reporter authorized by the district court, statements such as "we're on the record" and interruptions by the court reporter during trial do not, in and of themselves, obviate the need to have some indication on the record that the court reporter was formerly appointed or was administered an oath. Furthermore, nothing in the record indicates that the court reporter was anything more than a private court reporter hired by the Beardens, and, thus, there was no basis for the State to object at that time. Certainly, the better practice would have been for the district court, out of an abundance of caution, to have administered an oath to the court reporter. Therefore, given the particular facts and circumstances of this case, I do not believe that the transcript in this case was an official record and, therefore, I believe that it was not an "adequate record" for appeal under Rule 30.2(1). Because the Beardens failed to meet the requirements of Rule 30.2, jurisdiction lies with the circuit court and not with this Court. Accordingly, this appeal is not properly before this Court, and it is due to be dismissed. See Smith v. State, 869 So.2d 1189 (Ala. Crim. App. 2003) ; Scrushy v. State, 834 So.2d 149 (Ala. Crim. App. 2002) ; Hill v. State, 710 So.2d 519 (Ala. Crim. App. 1997).

Welch, J., concurs.

      The Beardens appealed directly to this Court pursuant to Rule 30.2(1), Ala. R. Crim. P.

      We also note that the Beardens did not file their motion to dismiss the complaints until approximately four hours before trial began. (C. 62.) At no point during the interval between their arrests and trial did the Beardens file any motions alleging a defect in the complaints.

      Rule 30.2(2), Ala. R. Crim. P., provides for a direct appeal to this court if "the parties stipulate that only questions of law are involved and the district court or the municipal court certifies the question." In their reply brief, the Beardens concede that Rule 30.2(2) does not apply to their case.

      The Beardens expressly waived their right to a jury trial, see (C. 28, 68), and the State is not entitled to a jury trial on a misdemeanor offense. See Ex parte Boswell, 558 So.2d 918, 921 (Ala. 1990).


author: Per Curiam.

text:
    Terry Lynn WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-662
    District Court of Appeal of Florida, First District.
    June 7, 2018
    Andy Thomas, Public Defender, and Victor D. Holder, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Lewis, Roberts, and Jay, JJ., concur.


text:
    Larry Roy SUGGS, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as TRUSTEE FOR the CERTIFICATEHOLDERS OF CITIGROUP MORTGAGE LOAN TRUST, INC., ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES 2007-AHL2, Appellee.
    No. 1D16-5492
    District Court of Appeal of Florida, First District.
    June 7, 2018
    Mitch Dever, Panama City Beach, for Appellant.
    Christine Irwin Parrish and Gennifer L. Bridges of Burr & Forman, LLP, Orlando, for Appellee.
   Per Curiam.

AFFIRMED.

Wolf, Winokur, and Jay, JJ., concur.


text:
    Jearick MACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2285
    District Court of Appeal of Florida, First District.
    June 7, 2018
    Andy Thomas, Public Defender, and Kevin P. Steiger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Ray, and Osterhaus, JJ., concur.


text:
    Russell DOMINICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0856
    District Court of Appeal of Florida, First District.
    June 7, 2018
    Stephen N. Bernstein, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    Cory ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0603
    District Court of Appeal of Florida, First District.
    September 12, 2018 Rehearing Denied November 9, 2018
    Cory Ashley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    Raymond GRANT, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-4034
    District Court of Appeal of Florida, First District.
    August 15, 2018 Rehearing Denied October 2, 2018
    Raymond Grant, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    Kendrick Richard JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1515
    District Court of Appeal of Florida, First District.
    August 8, 2018
    Andy Thomas, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, Miami, for Appellee.
   Per Curiam.

AFFIRMED .

Wetherell, Bilbrey, and M.K. Thomas, JJ., concur.


text:
    Raymond PADILLA, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-4969
    District Court of Appeal of Florida, First District.
    July 10, 2018
    Raymond Padilla, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of certiorari is denied on the merits.

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    Johnny WALTHOUR, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0776
    District Court of Appeal of Florida, First District.
    October 23, 2018
    Johnny Walthour, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Roberts, Ray, and Winsor, JJ., concur.


text:
    Eugene SMITH, Appellant, v. Reginald BRUSTER, in his individual and official capacity; and Habitat for Humanity, Appellees.
    No. 1D17-2440
    District Court of Appeal of Florida, First District.
    September 18, 2018 Rehearing Denied November 7, 2018
    Eugene Smith, pro se, Appellant.
    Jason Vail of Jolly, Peterson & Truckenbrod, P.A., Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED .

Rowe, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Carl Wayne ARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2857
    District Court of Appeal of Florida, First District.
    September 18, 2018
    Carl Wayne Ard, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Rowe, Ray, and Makar, JJ., concur.


text:
    Willie E. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2127
    District Court of Appeal of Florida, First District.
    May 17, 2018
    Willie E. Moore, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Lewis, Roberts, and Jay, JJ., concur.


text:
    Mary POSS, Wife, Appellant, v. David M. POSS, Sr., Husband, Appellee.
    No. 1D17-2472
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Laura E. Keene of Beroset & Keene, Pensacola, for Appellant.
    Kenneth M. Jayne, Pensacola, for Appellee.
   Per Curiam.

AFFIRMED.

B.L. Thomas, C.J., and Wolf and Ray, JJ., concur.


text:
    Mary Ann RAYMOND, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and the Diamond Group, Inc., Appellees.
    No. 1D17-4474
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Mary Ann Raymond, pro se, Appellant.
    Katie Sabo, Appellate Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED.

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    James Harvey TIPLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-387
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General; Amanda D. Stokes and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   Per Curiam.

The petition is denied on the merits.

Wetherell, Rowe, and Jay, JJ., concur.


text:
    Carl Daniel TAYLOR, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D17-4241
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Lee Meadows of The Law Office of Lee Meadows, Tallahassee, for Petitioner.
    Christie S. Utt, General Counsel, and Nathaniel D. Sebastian, Assistant General Counsel, Tallahassee, for Respondent.
   Per Curiam.

DENIED .

Rowe, Ray, and Makar, JJ., concur.


text:
    Antonio Denorris William HESTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5417
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Lewis, Makar, and Osterhaus, JJ., concur.


text:
    David Wayne AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-514
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED.

Wetherell, Makar, and Kelsey, JJ., concur.


text:
    Nirav PATEL, Mahendra Patel and ARRR Truck Stop, LLC, a Florida Limited Liability Company, Appellants, v. HAMILTON, LLC, a Florida Limited Liability Company, Harrison Plumbing, Inc., a Florida Corporation, Appellee.
    No. 1D17-4197
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Kerry Adkison of Kerry Adkison, P.A., Chipley, for Appellants.
    Michael Wm Mead of Mead Law Firm, Fort Walton Beach, for Appellee.
   Per Curiam.

AFFIRMED .

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Gary A. STEINBERG, Appellant, v. CITY OF TALLAHASSEE/CITY OF TALLAHASSEE RISK MANAGEMENT, Appellees.
    No. 1D17-3353
    District Court of Appeal of Florida, First District.
    May 23, 2018
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   Per Curiam.

AFFIRMED .

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


author: PER CURIAM.

text:
    David A. CANADY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1088
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So. 3d 258 (Fla. 2011) ; State v. King, 426 So. 2d 12 (Fla. 1982) ; McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; McKenzie v. State, 31 So. 3d 275 (Fla. 2d DCA 2010) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002) ; Desmond v. State, 576 So. 2d 743 (Fla. 2d DCA 1991) ; Budd v. State, 477 So. 2d 52 (Fla. 2d DCA 1985) ; McMillan v. State, 832 So. 2d 946 (Fla. 5th DCA 2002) ; Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998).

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Abenamar BENAVIDES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3401
    District Court of Appeal of Florida, Second District.
    Opinion filed June 15, 2018.
    Keith W. Upson of The Upson Law Group, P.L., Naples, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, KHOUZAM, and CRENSHAW, JJ., Concur.


text:
    Sean LUCEY and Lucey Corp., Appellants, v. Deepak KRISHNAMOORTHY, Abdul Hafiz Hyath Mohammed, Gopi Chandran, Hema Chandran, Rachna Birla, Vignesh Birla, Raj Kamalnathan, and Venkata Jakkula, Appellees.
    Case No. 2D17-4935
    District Court of Appeal of Florida, Second District.
    Opinion filed June 6, 2018
    Kathleen S. Lucey of Law Office of Kathleen S. Lucey, Saint Petersburg, for Appellants
    William J. Schifino, and John A. Schifino of Burr & Forman, LLP, Tampa, for Appellees
   PER CURIAM.

Affirmed.

BLACK and ATKINSON, JJ., and CASE, JAMES, ASSOCIATE JUDGE, Concur.


text:
    Stephen RABOW, Appellant, v. Kimberly MCCLURE, Appellee.
    Case No. 2D17-2863
    District Court of Appeal of Florida, Second District.
    Opinion filed May 11, 2018
    Stephen Rabow, pro se.
    Dana J. Watts, Sarasota, for Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, MORRIS, and ATKINSON, JJ., Concur.


text:
    Nathan J. MACK, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1183
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
    Nathan J. Mack, pro se.
   PER CURIAM.

Affirmed. See Mack v. State, 238 So. 3d 765 (Fla. 2d DCA 2017) (table decision); Mack v. State, 197 So. 3d 1241 (Fla. 2d DCA 2016) (table decision); Mack v. State, 182 So. 3d 649 (Fla. 2d DCA 2015) (table decision); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Valdez-Garcia v. State, 965 So. 2d 318 (Fla. 2d DCA 2007) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002) ; Harris v. State, 777 So. 2d 994 (Fla. 2d DCA 2000) ; Harris v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001).

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Karla Lorraine WOOTEN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1077
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
    Karla Lorraine Wooten, pro se.
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So. 3d 258 (Fla. 2011) ; McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002) ; Rowe v. State, 777 So. 2d 1088 (Fla. 2d DCA 2001) ; Smith v. State, 120 So. 3d 155 (Fla. 4th DCA 2013) ; Johnson v. Office of State Attorney, 987 So. 2d 206 (Fla. 5th DCA 2008) ; Francois v. State, 934 So. 2d 536 (Fla. 3d DCA 2006) ; Lee v. State, 847 So. 2d 1142 (Fla. 3d DCA 2003).

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Stacy Lee WATTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1082
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
   PER CURIAM.

Affirmed.

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Wendall CURRIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1086
    District Court of Appeal of Florida, Second District.
    Opinion filed September 26, 2018
   PER CURIAM.

Affirmed. See Carbajal v. State, 75 So. 3d 258 (Fla. 2011) ; Daniels v. State, 587 So. 2d 460 (Fla. 1991) ; DuBoise v. State, 520 So. 2d 260 (Fla. 1988) ; State v. King, 426 So. 2d 12 (Fla. 1982) ; McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013) ; Doby v. State, 25 So. 3d 598 (Fla. 2d DCA 2009) ; Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009) ; Waiter v. State, 965 So. 2d 861 (Fla. 2d DCA 2007) ; Valdez-Garcia v. State, 965 So. 2d 318 (Fla. 2d DCA 2007) ; Shortridge v. State, 884 So. 2d 321 (Fla. 2d DCA 2004) ; Desmond v. State, 576 So. 2d 743 (Fla. 2d DCA 1991) ; Budd v. State, 477 So. 2d 52 (Fla. 2d DCA 1985) ; McMillan v. State, 832 So. 2d 946 (Fla. 5th DCA 2002) ; Harris v. State, 789 So. 2d 1114 (Fla. 1st DCA 2001) ; Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998).

SILBERMAN, BADALAMENTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Derrick A. MCNEAL, DOC# 502420, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-2100
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018.
    Derrick A. McNeal, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Michael Schaub, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


text:
    Toby TISH, DOC #135610, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2271
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Shawn A. TYSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2663
    District Court of Appeal of Florida, Second District.
    Opinion filed September 28, 2018
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Brandon Tim SHINAWONGSE, Appellant, v. STATE of Florida, Appellee.
    Case Nos. 2D16-941 2D16-973
    District Court of Appeal of Florida, Second District.
    Opinion filed September 28, 2018
    Howard L. Dimmig, II, Public Defender, and Anthony W. Surber, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Bryant Elijah DEXTER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4902
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018
    Howard L. Dimmig, II, Public Defender, and Tim Bower Rodriguez, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


text:
    Nelson J. SANDERSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5104
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018
    Jamie Spivey, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., KELLY, and SALARIO, JJ., Concur.


text:
    Jeremy Pablo RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5126
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018.
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, SILBERMAN, and MORRIS, JJ., Concur.


text:
    Dean PODSTUPKA, Sr. and Marcia Podstupka, Appellants, v. TD BANK, N.A., Appellee.
    Case No. 2D18-1169
    District Court of Appeal of Florida, Second District.
    Opinion filed October 3, 2018
    Dean Podstupka, Sr. and Marcia Podstupka, pro se.
    Danielle Rundlett Burns of Duane Morris LLP, Boca Raton, for Appellee.
   PER CURIAM.

Affirmed.

KELLY, VILLANTI, and BLACK, JJ., Concur.


text:
    Gina GISTINGER, Appellant, v. Michael S. GISTINGER, Appellee.
    Case No. 2D17-2842
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant.
    Theodore J. Rechel of Rechel & Associates, P.A., Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. David A. LYNCH and Noelle Lynch, Appellees.
    Case No. 2D17-4082
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville; and Daniel A. Martinez and Weslee Ferron of Martinez Denbo, LLC, St. Petersburg, for Appellant.
    Brent G. Steinberg, Brandon G. Cathey, Stephanie Miles, and Dale Swope of Swope, Rodante P.A., Tampa, for Appellees.
   PER CURIAM.

Affirmed.

KHOUZAM, MORRIS, and BADALAMENTI, JJ., Concur.


text:
    Patrick Odell RIVERS, DOC #T62470, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5171
    District Court of Appeal of Florida, Second District.
    Opinion filed October 5, 2018.
    Howard L. Dimmig, II, Public Defender, and J.L. "Ray" LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katie Salemi-Ashby, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Louis Matthew CLEMENTS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS and Office of the Attorney General, Appellees.
    Case No. 2D17-4961
    District Court of Appeal of Florida, Second District.
    Opinion filed October 5, 2018.
    Louis Matthew Clements, pro se.
    Melville G. Brinson, III, Saint James City, for Appellees.
   PER CURIAM.

Affirmed.

SILBERMAN, LUCAS, and SALARIO, JJ., Concur.


text:
    J.K.D., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4522
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jason M. Miller, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    FLORENTINE DEVELOPMENT II, LLC, Appellant, v. RIVIERA-FORT MYERS MASTER ASSOCIATION, INC.; Robert J. Sodoma; Ronald H. Gabrick; Ralph Carlton Harrison; Norman J. Langlois; Stephen V. Calabro; Mark M. Mockenstrum; Jacqueline J. Zeh; and Suzanne L. Mcquaid., Appellees.
    Case No. 2D17-4972
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Kevin P. Fularczyk and Robert A. Cooper of Hahn Loeser & Parks LLP, Fort Myers, for Appellant.
    Jason P. Himschoot of Goede, Adamczyk, Deboest & Cross, PLLC, Fort Myers, for Appellees.
   PER CURIAM.

Affirmed.

KELLY and SALARIO, JJ., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concur.


text:
    Emerson PINKNEY, DOC #719392, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1312
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
   PER CURIAM.

Affirmed.

MORRIS, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Michael W. BOND, Appellant, v. Lauren B. BOND, Appellee.
    Case No. 2D18-1808
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Michael W. Bond, pro se.
    Linda H. Fried of Fried & Fried, P.A., Fort Myers, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    Jorge O. ACOSTA, Appellant, v. Natalie ACOSTA, Appellee.
    Case No. 2D17-2824
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Jorge O. Acosta, pro se.
    No appearance for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    STATE of Florida, Petitioner, v. David Allen RALSTON, Respondent.
    Case No. 2D18-1543
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Petitioner.
    Keith W. Upson of The Upson Law Group, P.L., Naples, for Respondent.
   PER CURIAM.

Denied.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    Jaime Emerson GARCIA-CARMONA, DOC #X75300, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4808
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Ita M. Neymotin, Regional Counsel, Fort Myers, and Stacy L. Sherman, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed.

MORRIS, LUCAS, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Jerry SALAZAR-MENENDEZ, O/B/O, S.S., Appellant, v. Graciela Marina COSTA, Appellee.
    Case No. 2D18-1963
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018.
    Michael E. Chionopoulos, Fort Myers, for Appellant.
    Stacy L. Sherman of Stacy L. Sherman, P.A., Cape Coral, for Appellee.
   PER CURIAM.

Affirmed.

NORTHCUTT, CASANUEVA, and BADALAMENTI, JJ., Concur.


text:
    David HALL, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-579
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    David Hall, pro se.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and KHOUZAM and BLACK, JJ., Concur.


text:
    Marcus B. HARRIS, DOC #839504, Appellant, v. William F. CRENSHAW, CEO; Publix Supermarkets, Inc. and Publix Store No. 399; and Thomas Roessel, Manager, Appellee.
    Case No. 2D18-644
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Marcus B. Harris, pro se.
    Diane D. Dewolf and Katherine E. Giddings of Akerman LLP, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

KELLY and SALARIO, JJ., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concur.


text:
    William F. PITTMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-728
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    William F. Pittman, pro se.
   PER CURIAM.

Affirmed.

LaROSE, C.J., and NORTHCUTT and BADALAMENTI, JJ., Concur.


text:
    Carl G. STAMM, Jr., DOC #230783, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-806
    District Court of Appeal of Florida, Second District.
    Opinion filed October 19, 2018
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Carl G. Stamm, Jr.
   PER CURIAM.

Affirmed.

KELLY and SALARIO, JJ., and CASE, JAMES, R., ASSOCIATE SENIOR JUDGE, Concur.


text:
    Wayne T. MURRAY, DOC# R52860, Appellant, v. MASSMUTUAL FINANCIAL GROUP; MML Investors Services, LLC ; Roy Caso, Jr.; and Glenn J. Murray, Appellees.
    Case No. 2D17-1970
    District Court of Appeal of Florida, Second District.
    Opinion filed October 26, 2018.
    Wayne T. Murray, pro se.
    Marie A. Borland and Robert B. Gough, III, of Hill, Ward & Henderson, P.A., Tampa; and William P. Thornton, Jr., of Stevens & Lee, Philadelphia, Pennsylvania, for Appellees MassMutual Financial Group, MML Investor Services, LLC, and Roy Caso, Jr.
    No appearance for remaining Appellee.
   PER CURIAM.

Affirmed.

KHOUZAM, LUCAS, and SALARIO, JJ., Concur.