text:
    Daylon WALDROP a/k/a Daylon Carl Waldrop a/k/a Daylon C. Waldrop, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01737-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN, ATTORNEY FOR APPELLEE.
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. A Forrest County jury convicted Daylon Waldrop of capital murder with the underlying felony of armed robbery. See Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014). The Forrest County Circuit Court then sentenced Waldrop to life imprisonment without eligibility for parole. On appeal, Waldrop challenges (1) the circuit court's failure to instruct the jury on the elements of the underlying felony of armed robbery and (2) the admission of a recorded 911 call made after the crime.

¶ 2. Upon review, we find Waldrop's first assignment of error dispositive. Neither party disputes that the circuit court failed to instruct the jury on the elements of the underlying felony of armed robbery. Both parties further acknowledge that, in Harrell v. State , 134 So.3d 266, 275 (¶ 30) (Miss. 2014), the Mississippi Supreme Court overruled its prior precedent and held that "it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to each and every element." In light of Harrell , the circuit court's failure here to instruct the jury on the elements of the underlying felony of armed robbery warrants the reversal of Waldrop's capital-murder conviction. We therefore reverse his conviction and remand this case for a new trial.

FACTS

¶ 3. On August 20, 2014, a Forrest County grand jury indicted Waldrop for capital murder during the commission of an armed robbery. The indictment charged the following:

[Waldrop,] in Forrest County, Mississippi, on or about August 1, 2013, did then and there willfully, unlawfully[,] and feloniously, and with or without any design to effect ... death, kill and murder Robert Williams, a human being, while in the commission of the crime and felony of [r]obbery with a deadly weapon ....

¶ 4. At Waldrop's trial, prior to submitting the case to the jury, the circuit court instructed the jury as follows on the elements of capital murder:

Daylon Waldrop has been charged with the offense of capital murder. If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about August 1, 2013[,] in Forrest County, Mississippi;
2 .... Robert Williams was a human being;
3 .... Daylon Waldrop[,] with or without any design to effect death[,] and without authority of law, ... did kill Robert Williams;
4. While Daylon Waldrop was engaged in the commission of the crime of robbery, then you shall find the [D]efendant guilty as charged.

The circuit court gave no corresponding instruction on the elements of armed robbery.

¶ 5. After the jury convicted Waldrop of capital murder, the circuit court sentenced him to life imprisonment without eligibility for parole. Waldrop filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved, Waldrop appeals.

DISCUSSION

¶ 6. On appeal, Waldrop argues the circuit court committed reversible error by failing to instruct the jury on all the essential elements of capital murder, including the elements of the underlying felony of armed robbery. Because this issue is dispositive, we decline to address Waldrop's remaining assignment of error.

¶ 7. Mississippi Code Annotated section 97-3-79 (Rev. 2014) defines armed robbery as the felonious "tak[ing] or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon ...." Thus, the essential elements of armed robbery include "(1) a felonious taking or attempt to take; (2) from the person or from the presence; (3) the personal property of another; (4) against his will; (5) by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon." Lenoir v. State , 224 So.3d 85, 91 (¶ 19) (Miss. 2017) (quoting Cowart v. State , 178 So.3d 651, 666 (¶ 42) (Miss. 2015) ).

¶ 8. Although Waldrop neither objected at trial to the omission of an armed-robbery elements instruction nor submitted his own such instruction, his argument on appeal is not procedurally barred. Our supreme court has explicitly rejected the application of a procedural bar where "the trial court fails to instruct the jury on the elements of the underlying felony in a capital-murder trial." Harrell , 134 So.3d at 270 (¶ 14). As the Harrell court explained, "the trial court is ultimately responsible for rendering proper guidance to the jury via appropriately given jury instructions, even sua sponte." Id.

¶ 9. In Harrell , a jury convicted Christopher Harrell of capital murder with the underlying felony of robbery and felon in possession of a firearm. Id. at 267 (¶ 1). In reversing Harrell's capital-murder conviction and remanding for a new trial, the supreme court explained that the circuit court's "failure to instruct the jury as to the elements of the charged crime deprived Harrell of due process in the form of his right to a jury trial as guaranteed by the Mississippi Constitution ...." Id. at (¶ 2). Because the present case is analogous to Harrell , we hold the circuit court's denial of Waldrop's "right to have a jury decide guilt as to each and every element" of the charge against him constitutes reversible error. See id. at 275 (¶ 30).

CONCLUSION

¶ 10. We therefore reverse Waldrop's capital-murder conviction and remand the case for a new trial.

¶ 11. REVERSED AND REMANDED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      Prior to Harrell , the supreme court ruled in Kolberg v. State , 829 So.2d 29, 50-51 (¶ 40) (Miss. 2002), that, consistent with United States Supreme Court precedent, a trial court's failure to instruct a jury on the elements of the underlying felony in a capital-murder trial was subject to harmless-error analysis rather than automatic reversal. In Harrell , however, the supreme court revisited-and ultimately reversed-its holding in Kolberg . Harrell , 134 So.3d at 275 (¶ 30).


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT: GRIFFIS, P.J., DISSENTING:

license: Public Domain

text:
    James Lee BRENT a/k/a James Lee Brent Jr. a/k/a James Brent a/k/a James L. Brent, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01351-COA
    Court of Appeals of Mississippi.
    May 22, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson
    BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. A jury sitting before the Madison County Circuit Court found James Lee Brent guilty of armed robbery, kidnapping, and possession of a firearm by a felon. For each conviction, the circuit court sentenced Brent as a violent habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. We agree with Brent's appointed appellate counsel that there was insufficient evidence to find Brent guilty of possession of a firearm by a felon. We also agree that the doctrine of retroactive misjoinder entitles Brent to a new trial on the armed robbery and kidnapping charges. Consequently, we reverse the circuit court's judgment, render a verdict of acquittal regarding the felon-in-possession-of-a-firearm charge, and remand the armed robbery and kidnapping charges to the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the early morning hours of November 12, 2015, Rayshaun Banks was on his third-shift lunch break from a manufacturing plant in Canton, Mississippi, when he stopped at a gas station. According to Banks, as he was adding air to one of his tires, a man later identified as Brent pressed something to the back of his head and demanded his money. Banks said he did not have any money, so Brent ordered Banks to get in the car. With Brent in the passenger seat, Banks drove south on I-55 and took the next exit at Gluckstadt. Banks then drove to a bank ATM to withdraw money. Banks said he needed to get out of the car to remove his wallet, but it was actually a pretense to run to safety and contact authorities.

¶ 3. Brent drove away in Banks's car, but he was apprehended later that morning in Jackson. He gave a statement and denied that he robbed Banks. According to Brent, Banks had agreed to give him a ride. Brent admitted that while they were in Banks's car, he "put [his] finger behind [Banks's] ear up against [Banks's] head" and told Banks that he was "going to use this car tonight ...." But Brent also said that Banks knew he was unarmed because Banks saw his fingers after he moved them away from Banks's head. When asked why Banks said Brent had a gun, Brent opined that Banks was "probably mad."

¶ 4. As for why Banks drove to the ATM, Brent said that Banks was going to "get ... some money so [Banks could] get back to Canton." Despite the implication that Banks was going to let Brent have the car, Brent later admitted that he took it without Banks's permission. He added that he felt "bad about it, because [he knew] it wasn't [his] property."

¶ 5. Brent was indicted and charged with armed robbery, kidnapping, and possession of a firearm by a felon. At trial, the prosecution called Banks and three law-enforcement officers who were involved in either Banks's report of the events, Brent's arrest, or the subsequent investigation. Brent chose to testify. He essentially reiterated the version of his events from his statement and said that Banks had agreed to give him a ride, he never had a pistol, and Banks bolted from the car for no reason. Brent also claimed that he intended to return Banks's car by leaving it somewhere in Jackson. As discussed above, the jury found him guilty of all three charges. Following his unsuccessful post-trial motion for a judgment notwithstanding the verdict (JNOV) or a new trial, Brent appeals. Additional facts will be discussed below as necessary.

DISCUSSION

I. Possession of a Firearm by a Felon

¶ 6. Brent argues that there was insufficient evidence to find that he willfully possessed a firearm. He reasons that the trial court should have granted either his motion for a directed verdict or his motion for a JNOV regarding the felon-in-possession-of-a-firearm charge, which was designated as Count III in the indictment. In reviewing this issue, we view "the evidence in the light most favorable to the State." Johnson v. State , 224 So.3d 66, 68 (¶ 4) (Miss. 2016). We will uphold the trial judge's decision unless "the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty." Id. (internal quotation mark omitted).

¶ 7. To prove the charge at issue, the prosecution had to present proof beyond a reasonable doubt that Brent had previously been convicted of a felony and he willfully possessed a firearm. See Body v. State , 147 So.3d 890, 892 (¶ 11) (Miss. Ct. App. 2014). After initial hesitation by Brent's trial counsel, the parties ultimately stipulated that Brent had a prior felony conviction. Thus, this issue hinges on whether there was sufficient evidence that Brent possessed a firearm.

¶ 8. Banks testified that he "felt like a gun was in the back of [his] head[,]" but he did not "know if it was a pipe or a stick or whatever." He added that whatever he felt against his head, it "didn't feel like a finger." When asked why he took the Gluckstadt exit, Banks answered: "Because [Brent] had a gun on me, and I wanted to do what he said." He later clarified that he did not see a firearm when he was in the car with Brent.

¶ 9. Arguing that there was sufficient evidence to convict Brent, the State quotes Sanders v. State , 162 So.3d 868, 870 (¶ 11) (Miss. Ct. App. 2015), for the principle that "the absence of physical evidence does not negate a conviction where there is testimonial evidence." In Sanders , the defendant was convicted of attempted armed robbery and possession of a firearm by a felon. Id. at 869 (¶ 1). He was recognized "[w]hile brandishing a gun" as he tried to rob a restaurant where he worked. Id. at (¶ 2). When authorities stopped him, they did not find "the handgun used in the ... attempted robbery." Id. at (¶ 4). Even so, three witnesses "testified about the attempted robbery." Id. at (¶ 5). One witness testified "that when she said Sanders's name, he lowered his gun ...." Id. at 870 (¶ 13) (emphasis added). As such, this Court found no merit to Sanders's claim that the guilty verdicts were contrary to the weight of the evidence. Id. at 871 (¶ 22). Brent's case is unlike Sanders because there were no witnesses who saw Brent with a firearm.

¶ 10. The State also relies on Johnson v. State , 132 So.3d 616 (Miss. Ct. App. 2013). The defendant in that case was convicted of possession of a firearm by a felon after at least three people saw him with one. Id. at 619-20 (¶¶ 4, 7). Johnson said that he shot someone in self-defense and he led authorities to the pistol that he used. Id. at 619 (¶ 5). While discussing the propriety of a sentencing enhancement for using or displaying a firearm during the commission of a felony, this Court said that "[i]t cannot be denied that one can possess a firearm without using or displaying it." Id. at 627 (¶ 38). This Court went on to hold that the circuit court erred by applying the sentence enhancement without allowing the jury "to determine if Johnson had used or displayed the firearm that he possessed in the commission of a felony." Id. But Johnson does not stand for the principle that a conviction for possession of a firearm by a felon will be upheld without evidence that the accused actually or constructively possessed a firearm.

¶ 11. Here, there was simply no evidence that Brent possessed a firearm. Banks unequivocally testified that he never saw Brent with one. In the light most favorable to the State, there was evidence that Banks thought Brent might have had a pistol. That is, the evidence was that Brent put something to Banks's head, and Banks complied with Brent's demands because he could not be sure that Brent did not have a pistol. Although such behavior could result in some form of criminal liability, it is insufficient to prove beyond a reasonable doubt that Brent was guilty of Count III. Thus, we reverse the circuit court's judgment regarding that charge and render a judgment in Brent's favor.

II. Retroactive Misjoinder

¶ 12. In 2003, the circuit court entered a judgment of conviction after Brent pled guilty to two counts of armed robbery. Two years later, the circuit court entered another judgment of conviction after Brent pled guilty to two counts of perjury. Before jury selection, the prosecution announced that it was willing to stipulate to Brent's status as a felon. Alternatively, the prosecution planned to introduce one of the judgments of conviction; thus, the jury would learn that Brent had previously been convicted of two felonies.

¶ 13. Anticipating that the prosecution would not be able to present any evidence that Brent possessed a firearm, Brent's trial attorney moved to sever the charges. In other words, Brent's attorney asked the circuit court to try Brent solely for armed robbery and kidnapping at that time, and then try Brent for Count III at a later date. Brent's attorney reasoned that it would be overly prejudicial for the jury to learn that Brent had previously been convicted of a felony when it was unlikely that the prosecution would be able to prove that Brent possessed a firearm.

¶ 14. Like Brent's attorney, the prosecution expected Banks to testify that "he believed he felt a weapon on the back of his head. And he believed [Brent] had the weapon, but [Banks] never saw the weapon ...." However, the prosecution argued that it would be "a jury question" regarding whether Banks's testimony would be sufficient to find Brent guilty of Count III. After further discussion, Brent's attorney remained adamant that he would not stipulate to Brent's status as a prior felon. Counsel argued that:

[i]f the State goes forward with all three counts of the indictment and there's proof of a felony conviction, if there is no gun, there is no jury question. We get a directed verdict, and if we get a directed verdict and the jury has heard about the prior felony conviction, that evidence would be inadmissible in the absence of Count [III] of the indictment.
There are two remedies. One is to allow the State to go forward, put on some proof of a prior conviction, fail to put on proof of a gun, and then give cautionary instructions to the jury that they should ignore the prior felony conviction. Well, once that's out of the box, it's out. The cat's out of the bag. The remedy ... is to sever [Count III] of the indictment for a separate trial, and our motion is for a severance of that [C]ount away from these other two, that would fix it. That would fix it without the possibility of prejudice to the jury.

The circuit judge ultimately denied Brent's severance motion. Although Brent's attorney initially refused to stipulate that Brent was a prior convicted felon, counsel later changed his mind. During its case-in-chief, the prosecution read a stipulation that Brent had previously been convicted of an unspecified felony.

¶ 15. Brent now claims that his convictions for armed robbery and kidnapping should be reversed based on the doctrine of "retroactive misjoinder." "[R]etroactive misjoinder 'occurs when a trial or appellate court determines that while joinder of two or more counts against a defendant was initially proper, one or more of those counts should be vacated.' " Reynolds v. State , 227 So.3d 428, 433-34 (¶ 23) (Miss. Ct. App. 2017) (quoting Williams v. State , 37 So.3d 717, 721 (¶ 9) (Miss. Ct. App. 2010) ). "[A] defendant in such a case is entitled to a new trial on the remaining count(s) if he can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count." Id. at 434 (¶ 23) (internal quotation mark omitted). "The strength of the State's case against the defendant on the remaining count[s], the specific evidence presented in connection with the vacated count, and other pertinent details of the defendant's case and trial should be analyzed in determining if the defendant was prejudiced." Id. at 434 (¶ 26).

¶ 16. Assuming that Brent was being tried for armed robbery and kidnapping and he would not have chosen to testify, the prosecution would not have been able to introduce evidence of Brent's status as a prior convicted felon. Evidence of Brent's status caused him to suffer clear and compelling prejudice. To prove armed robbery and kidnapping, the prosecution relied nearly entirely on Banks's testimony. Based on the flight instruction, the jury could have derived some degree of probative value from the fact that Brent fled from Officer Mashanna Johnson of the Jackson Police Department when she encountered him. And when Investigator Terence Ware of the Canton Police Department testified, he discussed Brent's statement, which certainly contained practical inconsistencies that could have caused the jury to doubt Brent's credibility. In his statement, Brent admitted that he put his fingers to Banks's head while they were both in the car, but Brent also said that Banks saw that he was unarmed. Though not to the extent of the case in Williams , the prosecution's case against Brent was primarily a "swearing match" between him and Banks, and "the credibility of both individuals was of the utmost importance ...." See Williams , 37 So.3d at 727 (¶ 31).

¶ 17. Having already stipulated to his status as a previously convicted felon, Brent chose to testify in his defense. During cross-examination, Brent admitted that he had two prior perjury convictions and, as stated by the prosecution, "two other convictions on top of the perjury ...." Brent also described himself as a "crackhead" during cross-examination and responded affirmatively when the prosecution asked him if he tried to deceive Officer Johnson during her foot pursuit by claiming that he had just left a home in the vicinity of the chase. Thus, Brent's case was prejudiced to at least some degree by his decision to testify and expose himself to cross-examination on the subjects discussed above, but subsequent events showed that Brent's attorney would have advised Brent not to testify if the jury had not already heard that Brent had previously been convicted of a felony.

¶ 18. After both sides rested, Brent renewed his motion for a directed verdict related to Count III. The prosecution initially argued against the motion, but later offered to drop Count III and proceed on the armed robbery and kidnapping charges. Brent's attorney responded by moving for a mistrial and arguing that he would have advised Brent not to testify if Brent had not been charged with Count III. More specifically, Brent's attorney argued that if Brent had not been facing the charges in Count III:

It would have altered our defense strategy to the point that I would have recommended that Mr. Brent not testify. The only reason that it became worthwhile for him to testify was because the jury already knew that he was a prior convicted felon, and that never would have been presented to the jury. I moved the Court to sever that charge yesterday. I told the Court yesterday I thought that would have fixed the problem. It would have prevented the situation we're in now. And now that jury has to go back to a jury room with us having stipulated that he was a prior convicted felon, and they never would have heard about it if we hadn't stipulated to it because Mr. Brent would not have testified.

The prosecution countered by withdrawing its motion to drop Count III. Even so, it is clear that but for defense counsel's argument the prosecution would have been willing to drop Count III. Moreover, all parties expected that Banks would testify that he never saw a firearm in Brent's possession, and Banks later testified consistent with that expectation. After careful consideration of the precise circumstances of this case, we conclude that the evidence of Brent's status as a prior convicted felon caused him to experience clear and compelling prejudice to the degree that a new trial is necessary on the armed robbery and kidnapping charges. We remand those charges to the circuit court.

CONCLUSION

¶ 19. There was insufficient evidence to find that Brent possessed a firearm, so we reverse the circuit court's judgment on Count III and render a verdict in Brent's favor regarding that charge. We also conclude that the doctrine of retroactive misjoinder necessitates that Brent receive a new trial on the armed robbery and kidnapping charges, so we remand them to the circuit court. We find that our resolution of these two issues makes it unnecessary to discuss the last issue that appellate counsel raises in her brief or the five issues that Brent raises in his pro se supplemental brief.

¶ 20. REVERSED, RENDERED IN PART, AND REMANDED IN PART.

LEE, C.J., IRVING, P.J., BARNES, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY CARLTON AND WILSON, JJ.

GRIFFIS, P.J., DISSENTING:

¶ 21. Because I would affirm the conviction under Count III, I respectfully dissent.

¶ 22. There was no direct evidence by a witness who saw the gun. However, "the absence of physical evidence does not negate a conviction where there is testimonial evidence." Sanders v. State , 162 So.3d 868, 870 (¶ 11) (Miss. Ct. App. 2015). Here, Banks testified he felt something like a gun on the back of his head. He said that he believed Brent possessed a gun because it felt hard against his skull. Banks insisted that it did not feel like a finger. "[O]ne can possess a firearm without using or displaying it." Johnson v. State , 132 So.3d 616, 627 (¶ 38) (Miss. Ct. App. 2013).

¶ 23. In my opinion, even though Banks never saw Brent's gun, Banks clearly testified that he thought Brent possessed a gun because Brent pressed something hard, unlike an opposable thumb or finger, against the back of his skull and threatened him. From this testimony, a rational juror could have found the State proved the element of possession. Accordingly, I find that there was sufficient evidence to support the conviction and the trial court did not err when it denied Brent's motion for a directed verdict regarding Count III.

CARLTON AND WILSON, JJ., JOIN THIS OPINION.

      Although Banks did not know Brent's name, Banks said he had seen Brent at work because Brent once worked for a factory that shared space with Banks's employer.

      See Dambrell v. State , 903 So.2d 681, 683 (¶ 6) (Miss. 2005) ("[W]hen a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to" find the defendant guilty of armed robbery.).

      If Brent chose to testify in a hypothetical trial on the armed robbery and kidnapping charges, the prosecution probably would have been allowed to impeach his credibility by cross-examining him regarding his prior perjury convictions. See M.R.E. 609 ; Hodges v. State , 743 So.2d 319, 326 (¶ 42) (Miss. 1999) ("[T]he jury was also free to consider [the accused's] prior conviction for perjury in weighing the truthfulness of his testimony."); Fuselier v. State , 702 So.2d 388, 394 (¶ 19) (Miss. 1997) (explaining that a witness may be cross-examined regarding a prior perjury conviction and "the jury should be allowed to make the final determination of the credibility and weight of the witness's testimony").


author: IRVING, P.J., FOR THE COURT:

text:
    Melissa Christine Black WEAVER, Appellant v. Richard Franklin WEAVER, Appellee
    NO. 2016-CA-01642-COA
    Court of Appeals of Mississippi.
    May 29, 2018
    ATTORNEY FOR APPELLANT: CHRISTOPHER A. TABB, Brandon
    ATTORNEYS FOR APPELLEE: J. PEYTON RANDOLPH II, Ridgeland, RICK D. PATT, Jackson
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Melissa Weaver appeals the judgment of the Rankin County Chancery Court, which granted her and her husband Richard Franklin Weaver a divorce on the ground of irreconcilable differences and equitably divided the marital estate. She argues that the chancery court failed to properly consider the relative tax consequences when distributing the marital assets between her and Richard.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 14, 2015, Melissa filed a complaint for divorce from Richard on the grounds of habitual cruel and inhumane treatment, and in the alternative, irreconcilable differences. On March 2, 2016, the court entered an agreed temporary order. On May 5, 2016, the parties filed a consent to divorce on the ground of irreconcilable differences, and the issues of equitable division of the marital estate, alimony, and attorneys' fees were submitted to the court to decide. After a lengthy discovery period and a continuance, the trial was conducted on August 8, 2016, and August 31, 2016.

¶ 4. The court issued its judgment of divorce on October 4, 2016, finding that the marital estate had a value of $555,279.90, not including other property previously divided. The court awarded Richard fifty-five percent of the valued marital estate, and Melissa the remaining forty-five percent. The chancellor made a handwritten addition to his order, stating that: "[Melissa's attorney] did not approve this order as to form as he thought the order should mention 'tax consequences' but the [c]ourt entered this order without such language as that can be brought by the appropriate motion at a later date and time."

¶ 5. A hearing on Melissa's motion to reconsider-addressing the tax consequences of the distribution of marital assets-was held on October 20, 2016. During said hearing, she offered into evidence the expert testimony of John Dongieux, an attorney and certified public accountant. Ultimately, the court denied the motion, and this appeal followed.

DISCUSSION

¶ 6. The standard of review is succinctly addressed in Rhodes v. Rhodes , 52 So.3d 430, 435 (¶ 15) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted), as this Court found:

Chancellors are afforded wide latitude in fashioning equitable remedies in domestic relations matters, and their decisions will not be reversed if the findings of fact are supported by substantial credible evidence in the record. We will not disturb a chancellor's factual findings unless the chancellor's decision was manifestly wrong or clearly erroneous, or the chancellor applied an improper legal standard. We do not substitute our judgment for that of the chancellor, even if we disagree with the findings of fact and would arrive at a different conclusion. But when reviewing a chancellor's interpretation and application of the law, our standard of review is de novo.

¶ 7. "In ordering an equitable distribution, chancellors are directed to (1) classify the parties' assets as marital or separate, (2) determine the value of those assets, and (3) divide the marital estate equitably based upon the factors set forth in Ferguson ." Rhodes , 52 So.3d at 436 (¶ 18). The first step in the court's analysis of assets in a divorce action is to determine which assets are separate property and which assets are marital property and thus subject to distribution between the parties. Pursuant to Hemsley v. Hemsley , 639 So.2d 909, 914 (Miss. 1994), "[a]ssets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties' separate estates prior to the marriage or outside the marriage." After valuing the marital property, the court distributes it using the factors laid out in Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994). "In doing so, chancellors need not make findings on each and every Ferguson factor." Chipley v. Chipley , 210 So.3d 1030, 1032 (¶ 6) (Miss. Ct. App. 2015). Among the factors to be considered by the court are the "[t]ax and other economic consequences ... of the proposed distribution." Ferguson , 639 So.2d at 928.

¶ 8. Melissa's sole argument on appeal is that the trial court incorrectly found that there were no tax consequences attributable to the distribution of the marital property. She asserts that most of the marital estate that was distributed to her consisted of retirement and pension funds, which were subject to taxes in order to liquidate those assets. She notes that Richard received the real property. She cites Louk v. Louk , 761 So.2d 878, 883 (¶¶ 12-13) (Miss. 2000), arguing that the Mississippi Supreme Court reversed the trial court's decision in that case since it did not do an analysis of the Ferguson factors and did not consider the tax consequences of the distribution of assets. She also cites Davis v. Davis , 832 So.2d 492, 500-02 (¶¶ 30-38) (Miss. 2002), arguing that she will have a more likely need to liquidate assets in order to provide for herself and the children and that she should not bear the burden of paying taxes to convert the assets to cash.

¶ 9. The court pointed out that there would be no tax consequences to Melissa if she rolled the money into her own retirement/pension account. However, she argues that the court failed to consider that because she received mostly retirement/pension funds as her part of the distribution of assets, she is more likely to have to withdraw some, if not all, of the funds to purchase a home and provide herself with necessities. She contends that the chancellor did not take the ten-percent-early-withdrawal penalty and the additional tax burdens into consideration.

¶ 10. Richard responds that the chancellor was correct in his distribution of the couples' marital assets. He notes that, in the court's initial ruling, it specifically addressed the tax-consequences issue, as the chancellor specifically stated that,

Ms. Weaver has a vehicle from which she could have any money from a retirement transferred to her without incurring any tax penalty. Now, she would be-she would certainly be penalized if she made a draw on any money, but that would be her choosing, but just the conveyance of money would not be penalizing to her.

Melissa also testified to that effect and had the following exchange with the chancellor:

[COURT]: All right. Do you know whether or not Mr. Weaver's retirement plan can be-whatever, if a dollar or if a hundred thousand or all of it-could be rolled over into your account? Do you know?
[MELISSA]: Yes, sir.
[COURT]: Without any penalty of taxing to you?
[MELISSA]: Correct. It can.
[COURT]: Without any penalty of taxation to Mr. Weaver?
[MELISSA]: Yes.
[COURT]: Okay.
[MELISSA]: It's only taxed when you remove. It can be rolled over.
[COURT]: So you have a vehicle which to receive any retirement without the penalty of taxation?
[MELISSA]: Right.

Additionally, the court pointed out that Richard's main concern, with respect to the distribution, was the real property, and Melissa's main concern was money. The court also awarded Melissa periodic monthly alimony payments of $1,250. Richard asserts that although Melissa contends that the division of the retirement account would cause her an insurmountable tax penalty, that should not be an issue because she can avoid those tax penalties through the entry of a qualified domestic relations order. See Jones v. Jones , 904 So.2d 1143, 1148 (¶ 18) (Miss. Ct. App. 2004).

¶ 11. We find that the chancellor's decision was supported by substantial, credible evidence. The chancellor performed a thorough analysis of the Ferguson factors and specifically addressed the tax consequences associated with the distribution. He correctly noted that the issue of tax consequences is only one of several factors that the court considers in the equitable distribution of marital assets. The chancellor's finding-that there were no tax consequences-was based on the fact that a transfer of the assets would incur no tax consequences, and that either party would incur such if he or she decided to withdraw the retirement funds early. We find that the chancellor adequately considered the tax consequences attributable to the parties. As such, we find no issue with the chancellor's findings of fact and his ultimate distribution of the marital estate.

¶ 12. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


author: MOORE, Judge.

text:
    EX PARTE STATE DEPARTMENT OF REVENUE
    (In re: State Department of Revenue v. Decatur RSA LP and AT & T Mobility II, LLC)
    2150811.
    Court of Civil Appeals of Alabama.
    September 2, 2016. March 17, 2017. Certiorari Denied May 12, 2017
    Alabama Supreme Court 1160547.
    David E. Avery III, deputy counsel, State of Alabama Department of Revenue, Montgomery, for petitioner.
    William B. Sellers and John G. Smith of Balch & Bingham LLP, Montgomery; and Margaret C. Wilson of Wilson Agosto LLP, Somerville, New Jersey, for respondents.
   MOORE, Judge.

The State Department of Revenue ("the Department") has petitioned this court to issue a writ of mandamus directing the Montgomery Circuit Court ("the circuit court") to grant its motion to dismiss. We deny the petition.

Procedural History

AT & T Mobility, LLC, operates in Alabama through its affiliates, Decatur RSA LP and AT & T Mobility II, LLC. We hereinafter refer to AT & T Mobility, LLC, Decatur RSA LP, and AT & T Mobility II, LLC, collectively as "AT & T." AT & T sells "internet access, voice, and text messaging services to Alabama customers." Although the Internet Tax Freedom Act, 47 U.S.C. § 151, prohibits states from taxing Internet-access charges, AT & T collected a service tax on Internet-access charges ("the Internet tax") from its Alabama customers and remitted the tax to the Department.

In 2009 and 2010, AT & T customers nationwide filed multiple class-action lawsuits in various federal courts against AT & T, alleging that AT & T had violated the Internet Tax Freedom Act by collecting taxes on Internet-access charges. The class representatives from Alabama were Stephanie Diethelm, Ann Marie Ruggerio, James Marc Ruggerio, and Joseph Phillips ("the Alabama AT & T customers"); they asserted that the class consisted of "all individuals who contracted with AT & T to provide wireless internet access through an AT & T system smart phone or an AT & T datacard who were charged purported sales 'taxes' for internet access." The federal cases were consolidated and transferred to the United States District Court for the Northern District of Illinois. In June 2010, the parties involved in the federal litigation entered into a "Global Class Action Settlement Agreement," which provided that AT & T would no longer collect tax on Internet-access charges; the class members authorized AT & T "to petition the various taxing jurisdictions on their behalf to obtain refunds of the tax erroneously collected on internet access charges and remitted to those jurisdictions."

Pursuant to the settlement, Decatur RSA LP ("Decatur") and AT & T Mobility II, LLC, submitted to the Department petitions for refunds on behalf of the Alabama AT & T customers, seeking to recover the tax that had been improperly collected by AT & T on its customers' Internet-access charges. The Department denied the refund petitions, and Decatur and AT & T Mobility II subsequently appealed the denial of the petitions to the Department's administrative-law division, and that appeal was ultimately heard by the recently created Alabama Tax Tribunal. See Ala.Code 1975 § 40-2B-2(a) (creating the tax tribunal to "to resolve disputes between the Department ... and taxpayers"). On May 6, 2015, the tax tribunal entered an order directing the Department to issue the requested refunds. On June 5, 2015, the Department filed an appeal of the tax tribunal's order to the circuit court.

On April 1, 2016, the Department filed in the circuit court a motion to dismiss its appeal for lack of subject-matter jurisdiction. The Department asserted that the Alabama AT & T customers had failed to comply with the notice and cure provisions of Ala.Code 1975, § 40-21-121(k). The Department argued that, based on that failure, the Alabama AT & T customers had not invoked the jurisdiction of the tax tribunal, thereby rendering its order directing the Department to issue the refunds void. Because an appeal will not lie from a void order, the Department contended that the circuit court lacked jurisdiction to consider the merits of the Department's appeal. On May 17, 2016, the circuit court denied the motion to dismiss. The Department filed its petition for a writ of mandamus on June 28, 2016. In its petition, the Department requests that this court issue an order requiring the circuit court to dismiss its appeal for lack of subject-matter jurisdiction.

Discussion

Section 40-21-121(k) provides:

"If a customer believes that an amount of tax, charge, or fee or an assignment of place of primary use or taxing jurisdiction included on a billing is erroneous, the customer shall notify the home service provider in writing. The customer shall include in this written notification the street address for the customer's place of primary use, the account name and number for which a customer seeks a correction, a description of the error asserted by the customer, and any other information that the home service provider reasonably requires to process the request. Within 60 days of receiving a notice under this section, the home service provider shall review its records to determine the customer's taxing jurisdiction. If this review shows that the amount of tax, charge, or fee or assignment of place of primary use or taxing jurisdiction is in error, the home service provider shall correct the error and refund or credit the amount of tax, charge, or fee erroneously collected from the customer for a period of up to two years. If this review shows that the amount of tax, charge, or fee or assignment of place of primary use or taxing jurisdiction is correct, the home service provider shall provide a written explanation to the customer. The procedures in this section shall be the first course of remedy available to customers seeking correction of assignment of place of primary use or taxing jurisdiction, or a refund of or other compensation for taxes, charges, and/or fees erroneously collected by the home service provider, and no cause of action based upon a dispute arising from such taxes, charges, or fees shall accrue until a customer has reasonably exercised the rights and procedures set forth in this section."

By its plain language, see IMED Corp. v. Systems Engineering Associates Corp., 602 So.2d 344, 346 (Ala.1992) ("Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning."), § 40-21-121(k) provides that a customer who claims that he or she has been erroneously charged a tax must notify his or her home-service provider in writing of the alleged error. Within 60 days, the home-service provider must review its records and determine whether an error has been committed. If the home-service provider determines that it erroneously collected a tax, the home-service provider must correct the error to prevent further collection and must refund the tax collected for up to two years. No cause of action against the home-service provider for a refund or any other compensation accrues until a customer "has reasonably exercised" the foregoing procedure.

The materials before us indicate that the Alabama AT & T customers did not follow the procedure set out in § 40-21-121(k) before filing their class action against AT & T. Based on that fact, the Department argues that the Alabama AT & T customers could not claim a refund for the Internet tax that AT & T had erroneously collected from them and, therefore, Decatur and AT & T Mobility II could not petition for a refund on their behalf. We disagree.

The Alabama Legislature amended § 40-21-121 in 2001 by, among other things, adding subsection (k) in response to the passage of the federal Mobile Telecommunications Sourcing Act ("the federal MTSA"), 4 U.S.C. § 116 et seq.See Title to Act No. 2001-1090, Ala. Acts 2001. The federal MTSA addresses the problem encountered by mobile-telecommunications providers in determining which state and local taxes they should collect by "creating uniform methods of 'sourcing,' which is the process of determining where a transaction is taxable." T-Mobile South, LLC v. Bonet, 85 So.3d 963, 981 (Ala.2011). Although the federal MTSA does not contain notice and cure provisions, Alabama elected to join other jurisdictions in providing mobile-telecommunications providers who collect taxes on behalf of the state additional protection from lawsuits arising from their tax-collecting function, which can be complicated. See, e.g., Alaska Stat. § 29.45.750(c) ; Ariz.Rev.Stat. § 42-5034.01 ; Ark.Code Ann. § 26-52-315(c)(2)(A) ; Colo.Rev.Stat. § 29-1-1002(3) ; Del.Code. Ann. tit. 30, § 5508(b) ; D.C.Code § 47-3922(e) ; Ga.Code Ann. § 48-8-13(c) ; Ky.Rev.Stat. Ann. § 65.7640 ; Mont.Code Ann. § 15-53-131(4) ; N.H.Rev.Stat. Ann. § 82-A:4-b(V) ; Okla. Stat. tit. 68, § 55001(D)(7) ; Tenn.Code Ann. § 67-6-532(c)(1) ; and Wyo. Stat. Ann. § 39-15-109(g). In adopting this measure, the Alabama Legislature intended that consumers could not maintain a civil action against a "home service provider" based on an erroneous tax collection before first notifying the provider of the error and giving the provider an opportunity to timely cure the error. See Miller v. Sprint Spectrum L.P. (No. C07-59JLR, Dec. 6, 2007) (W.D.Wash.2007) (not reported in F.Supp.2d) (construing Wash. Rev.Code § 35.21.873 ).

Section 40-21-121(k) does create certain procedures that a consumer must follow before obtaining a tax refund directly from a home-service provider, but it does not provide that a failure to follow those procedures acts as a forfeiture of the consumer's rights to a tax refund from the Department. Section 40-21-121(k) does not even refer to tax-refund claims against the Department or establish any procedures that must be followed before a petition for a tax refund can be filed against the Department. Those procedures are contained exclusively in the Taxpayers' Bill of Rights and Uniform Procedures Act ("the TBOR"), Ala.Code 1975, § 40-2A-1 et seq. The Department has not cited a single provision of the TBOR that requires compliance with § 40-21-121(k) before a tax-refund petition can be filed by or on behalf of a consumer from whom a home-service provider has erroneously collected taxes.

Moreover, even if § 40-21-121(k) could be construed as requiring a consumer to follow the notice and cure provisions before filing a tax-refund petition against the Department, which we do not hold, the Department has not demonstrated that those provisions are jurisdictional in nature. "Subject-matter jurisdiction concerns a court's power to decide certain types of cases." Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006). Section 40-2B-2(g)(1), Ala.Code 1975, gives the tax tribunal jurisdiction over appeals from the denial of a petition for a tax refund. The Department has not explained how noncompliance with § 40-21-121(k), which the Department considers to be a bar to the Alabama AT & T customers' substantive right to a tax refund, deprived the tax tribunal of jurisdiction to decide Decatur and AT & T Mobility II's appeal. See Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 46 (Ala.2013) (explaining difference between issues affecting a party's cause of action and issues implicating a party's standing and the court's subject-matter jurisdiction).

Mandamus is an extraordinary remedy and should not be granted unless the petitioner's right to relief is clear. Ex parte Army Aviation Ctr. Fed. Credit Union, 477 So.2d 379 (Ala.1985). The Department has not shown that the tax tribunal lacked subject-matter jurisdiction to adjudicate the appeal filed by Decatur and AT & T Mobility II from the denial of the tax-refund petition filed on behalf of the Alabama AT & T customers. The tax tribunal issued a valid order from which an appeal would lie to the circuit court. See § 40-2B-2(m), Ala.Code 1975. The circuit court did not err in denying the Department's motion to dismiss.

PETITION DENIED.

THOMAS and DONALDSON, JJ., concur.

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

PITTMAN, J., recuses himself.

On Application for Rehearing

As set out in our opinion on original submission, several customers of AT & T Mobility, LLC, residing in Alabama filed a class-action lawsuit against AT & T Mobility, LLC, and its Alabama affiliates, Decatur RSA LP and AT & T Mobility II, LLC, based on the companies' unlawful collection of a service tax on Internet-access charges ("the Internet tax"); as in our opinion issued on original submission, we sometimes refer to AT & T Mobility, LLC, Decatur RSA LP, and AT & T Mobility II, LLC, collectively as "AT & T." That class action was transferred to the United States District Court for the Northern District of Illinois ("the federal court") and consolidated with other similar cases. The parties subsequently entered into a "Global Class Action Settlement," approved by the federal court, in which the class members, including the class members residing in Alabama, authorized AT & T Mobility, LLC, "to petition the various taxing jurisdictions on their behalf to obtain refunds of the tax erroneously collected on internet access charges and remitted to those jurisdictions." The settlement further provided:

"The Settlement Class hereby consents to AT&T Mobility's filing of the claims for refund of Internet Taxes contemplated by this Settlement Agreement and to the payment of refunds or issuance of tax credits to AT&T Mobility in accordance with the terms of the Settlement Agreement.... To the extent required by the law of any state or local jurisdiction at issue, the Settlement Class assigns AT&T Mobility all rights of the Settlement Class members to file the refund claims for Internet Taxes contemplated by this Settlement Agreement."

On November 3, 2010, Margaret C. Wilson, an attorney representing AT & T Mobility, LLC, submitted a letter to the State Department of Revenue ("the Department") attaching two separate documents entitled "Joint Petition for Refund," one in the name of Decatur RSA LP and the other in the name of AT & T Mobility II, LLC. In the letter, Wilson explains:

"This refund claim is filed on behalf of the specific AT&T Mobility affiliate that remitted the tax, as identified on the enclosed refund claim form, and is joined in by the customers from whom tax amounts were collected, to the extent and as explained in the enclosed statement in support."

The "Statement in Support of Claim for Refund of Tax Attributable to Amounts Paid for Internet Access" explains that AT & T was filing the joint refund petitions pursuant to the terms of the class-action settlement, asserting that "[t]he Settlement Class has ... expressly joined in the making of the Refund Claim, as contemplated under the Settlement Agreement." Wilson also included in the documentation sent to the Department a digital versatile disc containing the names of all the class members from whom AT & T had collected the Internet tax; however, none of those class members actually signed either refund petition. Additionally, the joint refund petition filed by AT & T Mobility II, LLC, states on the line intended to identify the consumer joining in the petition: "Joinder is per Global Settlement Agreement referenced in the State of Support of refund claim."

On application for rehearing, the Department argues, for the first time, that the refund petitions did not comply with Ala. Code 1975, § 40-2A-7(c)(1), a part of the Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act ("the TBOR"), Ala. Code 1975, § 40-2A-1 et seq., which provides, in pertinent part:

"In the case of a petition for refund of ... public utilities taxes pursuant to Chapter 21 ... the petition shall be filed jointly by the taxpayer who collected and paid over the tax to the department and the consumer/purchaser who paid the tax to the taxpayer."

The Department maintains that AT & T did not have the authority to file a refund petition on behalf of the class members because, it says, (1) Ala. Code 1975, § 40-2A-7(c)(1), does not give the taxpayer who collected and paid a public-utilities tax the authority to file a refund claim on behalf of a consumer/purchaser and (2) even if § 40-2A-7(c)(1) does allow such a procedure, the class-action settlement purporting to give AT & T the authority to file on behalf of the class members is void.

Ordinarily, this court cannot consider arguments in support of a petition for a writ of mandamus asserted for the first time in an application for rehearing. See Ex parte Lovejoy, 790 So.2d 933, 938-39 (Ala.2000). However, the Department contends that strict compliance with § 40-2A-7(c)(1) is necessary and jurisdictional, see generally Patterson v. Gladwin Corp., 835 So.2d 137, 153 (Ala.2002) ("The TBOR is jurisdictional on its face."), and that it may raise a jurisdictional argument for the first time in an application for rehearing.

Although we question that latter proposition, see, e.g., Jefferson Cty. Comm'n v. ECO Preservation Servs., 788 So.2d 121, 127 (Ala.2000) (declining to consider jurisdictional argument raised for the first time on application for rehearing); but see Ex parte State (Hardeman v. State), 202 Ala. 694, 81 So. 656 (1919) (holding that issue of jurisdiction could be raised for the first time on application for rehearing), we address the merits of the Department's argument.

Compliance with § 40-2A-7(c)(1)

AT & T erroneously collected the Internet tax based on Ala. Code 1975, § 40-21-121(a), which levies a tax on the proceeds of the sale of mobile-telecommunications services. Alabama Code 1975, § 40-21-121(b), provides, in part, that "[a]ll taxes paid in pursuance of this section shall be conclusively presumed to be a direct tax on the customer precollected for the purpose of convenience and facility only." Under § 40-21-121, AT & T is considered the "taxpayer" because it is required to collect the tax and remit the tax to the Department, see Ala. Code 1975, § 40-2A-3(24), but it is actually AT & T's consumers who pay the tax.

Section 40-2A-7(c)(1) generally provides that any petition for a refund of a tax paid pursuant to § 40-21-121"shall be filed jointly" by the taxpayer and the consumer/purchaser. However, as an exception to the general rule, "[a] direct petition may be filed by the taxpayer if the taxpayer never collected the tax from the consumer/purchaser, or if the tax has been credited or repaid to the consumer/purchaser by the taxpayer." § 40-2A-7(c)(1). By this statutory scheme, the legislature apparently intended that a joint petition should be filed in those cases in which the taxpayer seeks a refund of moneys actually paid by the consumer. That procedure ensures that the consumer knows of the refund claim, that the consumer consents to petitioning the Department for a refund of his or her money, and that the consumer ultimately receives any refund remitted to the taxpayer. The filing provisions of the TBOR should be construed liberally with that legislative intention in mind. See Ala. Code 1975, § 40-2A-2(1) a. (providing that the purpose of the TBOR is "to provide equitable and uniform procedures for the operation of the department and for all taxpayers when dealing with the department" and that the TBOR "shall be liberally construed to allow substantial justice").

Generally speaking, a petition for a refund is "filed" when it is properly mailed or otherwise delivered to the Department. See Ala. Code 1975, § 40-1-45. A refund petition is "jointly" filed when both the taxpayer and the consumer combine or unite in delivering the petition as required. See Black's Law Dictionary 965 (10th ed. 2014) (defining "joint"); see also Bean Dredging, L.L.C. v. Alabama Dep't of Revenue, 855 So.2d 513, 517 (Ala.2003) ("[W]hen a term is not defined in a statute, the commonly accepted definition of the term should be applied."). Liberally construing § 40-2A-7(c)(1), we hold that a consumer may effectively "join" in a refund petition by expressly authorizing the taxpayer to include the consumer as a joint petitioner and by appointing the taxpayer as his or her agent for that purpose. In reaching our conclusion, we note that the Department indicated in oral argument that a party with a valid power of attorney may file a refund petition on behalf of another person. A power of attorney creates an agency relationship by which the attorney-in-fact covenants to use the powers conferred for the sole benefit of the principal. See Smith v. Wachovia Bank, N.A., 33 So.3d 1191, 1200 (Ala.2009). If a consumer expressly authorizes a taxpayer to file and collect an Internet-tax refund on behalf of the consumer, the taxpayer, in pursuing the refund solely for the ultimate benefit of the consumer, acts as an agent for the consumer in the same manner as an attorney-in-fact. Therefore, the taxpayer with valid authorization may, as part of its agency, lawfully include the consumer in a joint refund petition.

We also find that nothing in the language of § 40-2A-7(c)(1) prevents a taxpayer from including multiple consumers in a single refund petition. In Patterson, 835 So.2d at 142, the supreme court held that taxpayers could not circumvent the TBOR by filing a direct class action against the state to collect a tax refund. However, Patterson does not address whether multiple consumers may file a joint tax-refund petition along with a single taxpayer under § 40-2A-7(c)(1). Section 40-2A-7(c)(1) provides only that any consumer seeking a refund shall jointly file his or her petition with the taxpayer. The statute does not specify that only one consumer may join in a petition. Section 40-2A-7(c)(1) should not be construed to require that a separate refund petition be filed for each and every one of the hundreds of thousands of class members, thereby unduly increasing the administrative burden on the consumers, the taxpayers, and the Department in violation of the legislative intent behind the TBOR.

Finally, we reject any argument that the administrative-refund process was not properly invoked because the joint refund petitions were not signed by each individual class member. Although Rule 810-14-1-.18, Ala. Admin. Code (Dep't of Revenue), provides that the consumer must sign a joint refund petition, and the joint refund petition itself contains a signature line for the consumer, nothing in the TBOR indicates that a failure to sign a refund petition renders that petition invalid. Section 40-2A-7(c)(1) requires only that the joint refund petition be "filed" within the time limits prescribed in the TBOR. The materials before this court show that the documentation AT & T provided to the Department identified each class member by name and address, informed the Department of the amount of the tax collected from each class member, and calculated the total amount of the refund claimed. AT & T substantially complied with the filing requirement set out in the TBOR; the Department has failed to show that the technical omission of the signatures of the individual class members constitutes a jurisdictional defect. Compare Ex parte Taylor, 157 So.3d 122 (Ala.2008) (holding that a signature is not a jurisdictional requirement for a notice of appeal); and Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005) (holding that lack of proper verification of petition for postconviction relief was not a jurisdictional defect, but a procedural defect only) with Ex parte Carlisle, 894 So.2d 721 (Ala.Civ.App.2004) (holding that failure of taxpayer to file notice of appeal with the Department's Administrative Law Division within 30 days of entry of final order as required by Ala. Code 1975, former § 40-2A-9(g)(1), deprived circuit court of appellate jurisdiction).

In summary, we conclude that § 40-2A-7(c)(1) allows a taxpayer with valid express authority conferred by multiple consumers to include those consumers in joint refund petitions and that the failure of the consumers to each sign the joint refund petitions does not render the refund petitions invalid.

Validity of Authorization

The class members authorized AT & T to petition for the Internet-tax refund in the class-action settlement approved by the federal court. The Department argues that the federal court lacked subject-matter jurisdiction to approve the settlement agreement, thereby rendering the settlement agreement void. We disagree.

The TBOR constitutes the exclusive means for obtaining a tax refund. Patterson, supra. A federal court does not have subject-matter jurisdiction over state tax-refund claims for which the state has provided the exclusive remedy. See Estler v. Dunkin' Brands, Inc., (Ms. 16 Civ. 932(LGS), Oct. 3, 2016) (not reported in F.Supp.) (S.D.N.Y.2016). The parties did not provide this court with all the pleadings and orders from the federal-court action; however, those materials that we do have indicate that the federal court did not attempt to adjudicate the questions whether AT & T had violated Alabama law by collecting the Internet tax or whether the Alabama class members were entitled to a tax refund under Alabama law. See In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F.Supp.2d 935, 983 (N.D.Ill.2011). Thus, we conclude that the federal court did not act outside its jurisdiction in that manner.

We also conclude that the federal court did not lack subject-matter jurisdiction as a result of the failure of the Alabama class members to comply with Ala. Code 1975, § 40-21-121(k). Section 40-21-121(k) provides that no cause of action under Alabama law shall accrue to a customer of a telecommunications-service provider unless and until the customer complies with the notice and cure provisions contained in that Code section. However, as noted in our opinion on original submission, 247 So. 3d at 383, the fact that a party does not have a valid cause of action does not affect a court's subject-matter jurisdiction. Ex parte BAC Home Loans Servicing, LP, 159 So.3d 31, 46 (Ala.2013). A federal court's judgment cannot be attacked unless there is a proven absence of subject-matter jurisdiction or jurisdiction of the parties. See Jemison v. Brantley, 281 Ala. 108, 199 So.2d 650 (1967). Generally, a failure to meet prerequisites, such as meeting the requirements of a notice and cure provision, does not affect subject-matter jurisdiction and such failure will render the resulting judgment not void but merely voidable and not subject to collateral attack. See, e.g., Postma v. First Fed. Savings & Loan Ass'n of Sioux City, Iowa, note 12 (No. C 93-4058, March 28, 1995), (N.D.Iowa 1995) (not reported in F. Supp.), aff'd, 74 F.3d 160 (8th Cir. 1996) ("[A]lthough Defendants complied with the technical requirements of Iowa's mediation provision, Iowa Code § 654A.6, and the notice of right to cure, Iowa Code § 654.2A and 654.2B, failure to comply with these provisions does not render a judgment subsequently obtained void, but merely voidable. A judgment which is merely voidable is not open to collateral attack."). The Department does not cite any authority to the contrary.

The Department next argues that the federal court lacked jurisdiction to approve the provision of the settlement agreement authorizing AT & T to pursue the refund claims on behalf of the class. The Department cites Assignees of Best Buy v. Combs, 395 S.W.3d 847 (Tex.App.2013), to support its jurisdictional argument. In Combs, taxpayers, acting as a class, filed lawsuits against Best Buy and two other retailers to recover a refund of the overpayment of Texas sales taxes. The trial courts approved settlements pursuant to which the retailers assigned their refund claims to the class so that individual class members could pursue their assigned refund claims against the Texas State Comptroller. The orders approving the settlements purported to appoint class counsel to represent each individual class member on their refund claims against the Texas State Comptroller. Class counsel filed the refund claims, which were denied, prompting a lawsuit against the Texas State Comptroller. The trial court dismissed the lawsuit for lack of jurisdiction. On appeal, a Texas Court of Appeals determined that the trial courts overseeing the class actions had lacked jurisdiction to appoint class counsel as the legal representatives of the class members in their separate refund proceedings. In reaching that conclusion, the court held that a litigant ordinarily has the right to choose his or her own counsel and that courts do not have the authority to appoint counsel for a litigant absent express statutory or procedural authorization. 395 S.W.3d at 852. The court determined that Rule 42(g), Tex. R. Civ. P., specifically requires a trial court to appoint counsel in a class action, but held that Rule 42(g) does not imply a power to also appoint counsel in tax-refund proceedings prosecuted by the individual class members. 395 S.W.3d at 854-68. The court found that the appointed class counsel lacked authority to file any tax-refund petitions on behalf of the individual class members who, as a result, had failed to exhaust their administrative remedies before filing a tax-refund lawsuit against the Texas State Comptroller. The court affirmed the order of the Texas trial court dismissing the lawsuit for lack of jurisdiction. 395 S.W.3d at 868.

Unlike in Combs, this case does not concern the power of a state court to appoint class counsel to pursue tax-refund claims for class members. This case concerns the power of a federal court to approve a settlement in which a class of consumers voluntarily authorizes a taxpayer to file joint tax-refund petitions on behalf of the class members. The Department has not cited any legal authority that prevents a federal court from approving an agreement of that nature.

The Department last contends that the federal-court judgment approving the settlement is void because it was entered in a manner inconsistent with the Department's right to due process. See generally Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638 (Ala.2003). However, the Department does not have any constitutional right to due process. See Limestone Cty. Dep't of Human Res. v. Long, 182 So.3d 541, 545 (Ala.Civ.App.2014). Even if it did, the Department has not identified any of its rights that were at stake in the federal action, much less explained how those rights were adversely affected in any unconstitutional manner. The federal court's judgment approving the class-action settlement agreement authorizes AT & T to pursue a refund of the Internet tax from the Department. The judgment does not purport to determine any of the substantive or procedural rights of AT & T, the Alabama class members, or the Department in regard to the refund claims under Alabama tax law. As the federal court explained:

"A recurring concern involves the perception that the Court, in approving the Agreement, is affirmatively holding that the relevant taxing jurisdictions must grant the parties' refund requests. The Court makes no such finding. The Settlement is an agreement that, once approved by this Opinion, will only bind the private parties that are privy to it. The Settlement does not purport to dictate to any state or local authority the makeup of its applicable law."

In re AT & T Mobility Wireless Data Servs. Sales Tax Litig., 789 F.Supp.2d at 983.

For the foregoing reasons, we conclude that the federal court had jurisdiction to approve the settlement agreement, including the tax-refund-filing authorization provision.

Conclusion

The undisputed facts of this case show that the Alabama class members, with knowledge of their rights to a refund of the Internet tax, expressly conferred upon AT & T the power to file refund petitions on their behalf based on the class-action settlement agreement that was validly approved by the federal court. Acting pursuant to that authority, AT & T filed two joint refund petitions that effectively included the Alabama class members, notwithstanding their vast number and the lack of their signatures on the petitions. The terms of the settlement agreement indicate that AT & T shall place in escrow for the benefit of the Alabama class members any tax refunds recovered from the Department. Thus, it is clear that AT & T performed the administrative function of filing the joint refund petitions for the ultimate financial benefit of the Alabama class members. Under these circumstances, we find that the joint refund petitions satisfy the purposes of § 40-2A-7(c)(1) of the TBOR.

The filing of the joint refund petitions invoked the administrative-refund process, which was properly followed by an administrative appeal that resulted in a final order of the Alabama Tax Tribunal. The Department timely appealed to the circuit court, which has subject-matter jurisdiction as explained in our opinion on original submission. 247 So. 3d at 383. Accordingly, the circuit court did not err in denying the Department's motion to dismiss the appeal for lack of subject-matter jurisdiction.

APPLICATION OVERRULED.

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

      The Alabama class-action complaint originally named Stephanie Diethelm as a plaintiff and class representative, but she later withdrew from the class action, a fact overlooked in our opinion issued on original submission. 247 So. 3d at 380.

      Section 40-2A-7(C)(4), Ala. Code 1975, provides, in part, that if a refund petition is granted, the "overpayment shall ... be refunded to the taxpayer." (Emphasis added.) We presume that the legislature intended that the consumer/purchaser join in the tax-refund petition in part to secure his or her right to receive the refund from the taxpayer.

      Moreover, the Department has not proven that the Alabama class representatives lacked a valid federal cause of action against AT & T over which the federal court would obviously have had jurisdiction.

      Judge Pittman had recused himself from this case when this court issued its opinion on original submission. However, because of circumstances arising after this court's opinion on original submission was issued, the basis for Judge Pittman's recusal no longer exists.


author: PER CURIAM.

text:
    James Milton DAILEY, Appellant, v. STATE of Florida, Appellee.
    No. SC17-1073
    Supreme Court of Florida.
    [June 26, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Chelsea Rae Shirley, Maria E. DeLiberato, and Julissa R. Fontán, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review James Milton Dailey's appeal of the circuit court's order denying Dailey's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Dailey's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Dailey responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Dailey's response to the order to show cause, as well as the State's arguments in reply, we conclude that Dailey is not entitled to relief. Dailey was sentenced to death following a jury's unanimous recommendation for death. Dailey v. State , 594 So.2d 254, 256 (Fla. 1991). On appeal, this Court reversed Dailey's death sentence and "remand[ed] for resentencing before the trial judge." Id. at 259. On remand, the trial court again sentenced Dailey to death, and Dailey's sentence of death became final in 1996. Dailey v. State , 659 So.2d 246, 247 (Fla. 1995), cert. denied , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996). Thus, Hurst does not apply retroactively to Dailey's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Dailey's motion.

The Court having carefully considered all arguments raised by Dailey, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

CANADY, J., concurs in result.

QUINCE, J., recused.

PARIENTE, J., concurring in result.

For reasons I have explained numerous times, despite this Court's precedent, I would apply Hurst retroactively to Dailey's sentence of death. See Hitchcock v. State , 226 So.3d 216, 220-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). Applying Hurst to Dailey's case, although the jury unanimously recommended death, because this Court struck two aggravators on direct appeal, the Hurst error in Dailey's case was not harmless beyond a reasonable doubt. Dailey v. State , 594 So.2d 254, 259 (Fla. 1991). In fact, relying on its arbitrary retroactivity framework, this Court turns a blind eye to the quintessential Hurst error-a defendant, without waiver, sentenced to death by a trial judge alone without a jury's reliable, unanimous recommendation for death. See Dailey v. State , 659 So.2d 246, 247 (Fla. 1995), cert. denied , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996) ; see also Davis v. State , 207 So.3d 142, 173-75 (Fla 2016) ; Hurst , 202 So.3d at 44.

In 1991, after Dailey's penalty phase before a jury, this Court determined that the trial court made several errors in sentencing Dailey to death. See generally Dailey , 594 So.2d 254. In pertinent part, this Court determined that the evidence did not establish two aggravating factors that the trial court considered: (1) "that the murder was committed to prevent a lawful arrest," and (2) "that the murder was committed in a cold, calculated, and premeditated manner." Id. at 259. Further, this Court determined that the trial court erred in "recogniz[ing] the presence of numerous mitigating circumstances, but then accord[ing] them no weight at all." Id. Accordingly, this Court reversed Dailey's sentence of death and remanded for "resentencing before the trial judge." Id. On remand, the trial judge, alone, sentenced Dailey to death. Dailey , 659 So.2d at 247.

Of course, this Court's opinion in Hurst made clear that the jury is critical to the constitutional imposition of the death penalty. See 202 So.3d at 44, 60. Further, I explained in Middleton v. State , 42 Fla. L. Weekly S637, 2017 WL 2374697 (Fla. June 1, 2017), how stricken aggravating factors gravely undermine the critical reliability of a jury's unanimous recommendation for death in the context of a Hurst harmless error analysis. Id. at *1-2 (Pariente, J., dissenting).

In this case, it is clear that Dailey's penalty phase jury considered invalid aggravating factors in recommending a sentence of death. Therefore, if Hurst applied to Dailey's case, this Court could not rely on the jury's unanimous recommendation for death to determine that the Hurst error was harmless beyond a reasonable doubt. Even more, when this Court remanded for resentencing, Dailey's sentence of death was reviewed by a single trial judge alone. Thus, as a result of this Court's arbitrary framework for determining the retroactivity of Hurst , Dailey remains under an unconstitutionally unreliable sentence of death.

      In affirming Dailey's death sentence after resentencing, we affirmed the death sentence, rejecting Dailey's arguments that his penalty phase jury's "recommendation of death was invalid and he was entitled to an entire new penalty phase trial before a new jury." Dailey , 659 So.2d at 247-48.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).


text:
    Daniel Lee DOYLE, Appellant, v. STATE of Florida, Appellee.
    No. SC17-2054
    Supreme Court of Florida.
    [June 26, 2018]
    Mark E. Olive of the Law Office of Mark E. Olive, P.A., Tallahassee, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Ilana Mitzner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

We have for review Daniel Lee Doyle's appeal of the circuit court's order denying Doyle's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Doyle's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Doyle responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Doyle's response to the order to show cause, as well as the State's arguments in reply, we conclude that Doyle is not entitled to relief. Doyle was sentenced to death following a jury's recommendation for death by a vote of eight to four, and his sentence of death became final in 1985. Doyle v. State , 460 So.2d 353 (Fla. 1984). Thus, Hurst does not apply retroactively to Doyle's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Doyle's motion.

The Court having carefully considered all arguments raised by Doyle, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

As in prior Hitchcock -related cases, I concur in result because I recognize that this Court's opinion in Hitchcock is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to defendants like Doyle. Hitchcock , 226 So.3d at 220-21 (Pariente, J., dissenting).

Applying Hurst to Doyle's case, in addition to the jury's nonunanimous recommendation for death of eight to four, this Court determined on direct appeal that the State did not prove the avoid arrest aggravating factor beyond a reasonable doubt and therefore struck it before determining that the death penalty was proportionate in Doyle's case. Doyle v. State , 460 So.2d 353, 358 (Fla. 1984) ; majority op. at 393; see Middleton v. State , 42 Fla. L. Weekly S637, 2017 WL 2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a stricken aggravating factor affects the Hurst harmless error analysis). Further, this case demonstrates other concerns, specifically the absence of the trial court finding any mental mitigation. As then-Justice Overton, joined by then-Justice McDonald, explained on direct appeal dissenting in part,

The record reflects that [Doyle] was 21 years old; that he had an IQ of between 70 and 80, and was borderline retarded; that he was suffering from organic brain defects, which caused dyslexia, and had emotional problems; that he had been enrolled in handicapped classes; and that his mental condition was chronic.

Doyle , 460 So.2d at 358 (Overton, J., concurring in part and dissenting in part). After explaining that substantial evidence of mental mitigation was presented, which the trial court should not have rejected, Justice Overton explained that the trial court applied the wrong standard "in determining the presence or absence of the above mitigating circumstances." Id. at 359.

Therefore, in addition to the Court striking one of the three aggravating factors, the presence of substantial mitigation demonstrates that this case cries out for a resentencing by a jury in light of Hurst . While the crime itself was certainly aggravated, at least 4 jurors concluded that the death penalty was not appropriate, likely due to the significant evidence of mitigation. Accordingly, if Hurst applied to Doyle's case, I would conclude that the Hurst error is not harmless beyond a reasonable doubt and would, accordingly, grant Doyle a new penalty phase.

      Although our decision affirming Doyle's death sentence does not specify the number of Doyle's jurors who voted to recommend death, the Eleventh Circuit Court of Appeals referenced the jury vote in its decision regarding Doyle's federal petition for a writ of habeas corpus. See Doyle v. Dugger , 922 F.2d 646, 648 (11th Cir. 1991).

      Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      I also note that Doyle challenged his sentence of death under Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), several times. See Doyle v. Singletary , 655 So.2d 1120, 1121 (Fla. 1995) ; Doyle v. State , 526 So.2d 909, 911 (Fla. 1988). As I have explained, Caldwell further supports the conclusion that the Hurst error is not harmless beyond a reasonable doubt in cases where the jury did not unanimously recommend a sentence of death. See Reynolds v. State , 43 Fla. L. Weekly S163, --- So.3d ----, ---- - ----, 2018 WL 1633075, *15-17 (Fla. Apr. 5, 2018) (Pariente, J., dissenting).


text:
    Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
    No. SC18-382
    Supreme Court of Florida.
    [June 26, 2018]
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, James L. Driscoll, Jr., David Dixon Hendry, and Gregory W. Brown, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Celia A. Terenzio, Senior Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

We have for review Duane Eugene Owen's appeal of the circuit court's order denying Owen's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Owen's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Owen responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Owen's response to the order to show cause, as well as the State's arguments in reply, we conclude that Owen is not entitled to relief. Owen was sentenced to death following a jury's recommendation for death by a vote of ten to two. Owen v. State , 596 So.2d 985, 987 (Fla. 1992). His sentence of death became final in 1992. Owen v. Florida , 506 U.S. 921, 113 S.Ct. 338, 121 L.Ed.2d 255 (1992). Thus, Hurst does not apply retroactively to Owen's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Owen's motion.

The Court having carefully considered all arguments raised by Owen, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock .


text:
    Jose Antonio JIMENEZ, Appellant, v. STATE of Florida, Appellee.
    No. SC17-2272
    Supreme Court of Florida.
    [June 28, 2018]
    Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Donna M. Perry, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

We have for review Jose Antonio Jimenez's appeal of the circuit court's order denying Jimenez's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jimenez's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Jimenez responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Jimenez's response to the order to show cause, as well as the State's arguments in reply, we conclude that Jimenez is not entitled to relief. Jimenez was sentenced to death following a jury's unanimous recommendation for death. Jimenez v. State , 703 So.2d 437, 438 (Fla. 1997). His sentence of death became final in 1998. Jimenez v. Florida , 523 U.S. 1123, 118 S.Ct. 1806, 140 L.Ed.2d 945 (1998). Thus, Hurst does not apply retroactively to Jimenez's sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Jimenez's motion.

The Court having carefully considered all arguments raised by Jimenez, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

CANADY, J., concurs in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State , 226 So.3d 216 (Fla. 2017), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock . Id. at 220-23 (Pariente, J., dissenting). Of course, if Hurst applied to Jimenez's case, he would not be entitled to relief based on the jury's unanimous recommendation for death, coupled with the absence of any stricken aggravating factors. Jimenez v. State , 703 So.2d 437 (Fla. 1997) ; See Davis v. State , 207 So.3d 142, 174-75 (Fla. 2016).

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017).