text:
    SAFEWAY INSURANCE COMPANY OF ALABAMA, INC. v. Martez THOMAS
    2170088
    Court of Civil Appeals of Alabama.
    March 30, 2018 Certiorari Denied May 11, 2018
    Alabama Supreme Court 1170655
    J. Mark Hart and Brett W. Aaron of Hand Arendall LLC, Birmingham, for appellant.
    W. Alan Duke, Jr., of Belt & Bruner, P.C., Birmingham, for appellee.
   THOMAS, Judge.

In May 2015, Martez Thomas was the passenger in an automobile owned by Lena Spano and operated by Desean Evans, the father of Spano's child. An automobile operated by Calvin Jones ran a stop sign and collided with Spano's automobile; Thomas was injured. Thomas's damages exceeded the limits of Jones's automobile-liability policy, so Thomas sued Spano's insurer, Safeway Insurance Company of Alabama, Inc. ("Safeway"), in the Jefferson Circuit Court ("the trial court") seeking underinsured-motorist ("UIM") benefits. Safeway filed a motion for a summary judgment, in which it argued that Thomas was not entitled to benefits under Spano's policy based on an exclusion in the policy precluding coverage when the automobile covered under the policy was being operated by an unlicensed driver ("the unlicensed-driver exclusion").

Thomas opposed Safeway's motion and also sought a judgment in his favor. After discovery was completed, the parties stipulated to the following facts: Evans was not and had not ever been a licensed driver, and Thomas was unaware that Evans did not possess a driver's license; no other facts regarding the accident were disputed. Based on arguments made by Thomas, the trial court entered a judgment declaring the unlicensed-driver exclusion unenforceable against Thomas because, the trial court said, based on Thomas's lack of knowledge of Evans's status as an unlicensed driver, the exclusion violated Alabama's UIM statute, Ala. Code 1975, § 32-7-23(a), and Alabama's public policy. The trial court further ordered Safeway to pay to Thomas the policy limits of $50,000 and costs of $173.10. Safeway timely appealed the judgment.

On appeal, Safeway argues that the trial court erred in declaring that the unlicensed-driver exclusion in Safeway's policy violates § 32-7-23(a) or public policy. Safeway contends that the unlicensed-driver exclusion, like many other insurance-policy exclusions examined by Alabama courts, is enforceable and that, in essence, by basing its decision, in part, on Thomas's knowledge of Evans's status, the trial court impermissibly engrafted a knowledge requirement onto the exclusion and rewrote the policy. Based on our review of the relevant statutes and caselaw, we agree with Safeway that the unlicensed-driver exclusion is valid and enforceable.

General Principles Governing the Construction of Insurance Policies

We begin our analysis by setting out the general rules governing our construction of insurance contracts.

"General rules of contract law govern an insurance contract. Twin City Fire Ins. Co. v. Alfa Mut. Ins. Co., 817 So.2d 687, 691 (Ala. 2001). The court must enforce the insurance policy as written if the terms are unambiguous, id.; Liggans R.V. Ctr. v. John Deere Ins. Co., 575 So.2d 567, 569 (Ala. 1991). Whether a provision of an insurance policy is ambiguous is a question of law. Turvin v. Alfa Mut. Gen. Ins. Co., 774 So.2d 597, 599 (Ala. Civ. App. 2000)."

Safeway Ins. Co. of Alabama, Inc. v. Herrera, 912 So.2d 1140, 1143 (Ala. 2005). Furthermore, "[t]he identity of the insured and liability of the insurer are determined from the terms of the [insurance] contract." Kinnon v. Universal Underwriters Ins. Co., 418 So.2d 887, 888 (Ala. 1982).

In addition, the law gives guidance regarding the construction of exclusions within an insurance policy.

"[E]xceptions to coverage must be interpreted as narrowly as possible in order to provide maximum coverage to the insured. However, courts are not at liberty to rewrite policies to provide coverage not intended by the parties. Newman v. St. Paul Fire & Marine Insurance Co., 456 So.2d 40, 41 (Ala. 1984). In the absence of statutory provisions to the contrary, insurance companies have the right to limit their liability and write policies with narrow coverage. United States Fidelity & Guaranty Co. v. Bonitz Insulation Co. of Alabama, 424 So.2d 569, 573 (Ala. 1982). If there is no ambiguity, courts must enforce insurance contracts as written and cannot defeat express provisions in a policy, including exclusions from coverage, by making a new contract for the parties. Turner v. United States Fidelity & Guaranty Co., 440 So.2d 1026, 1028 (Ala. 1983)."

Johnson v. Allstate Ins. Co., 505 So.2d 362, 365 (Ala. 1987) ; see also Nationwide Mut. Ins. Co. v. Thomas, 103 So.3d 795, 803 (Ala. 2012).

Finally, because this case involves UIM coverage, we must look to the UIM statute for guidance. Alabama's UIM statute reads as follows:

"(a) No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of Section 32-7-6, under provisions approved by the Commissioner of Insurance for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage; and provided further, that unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with the policy previously issued to him or her by the same insurer."

Ala. Code 1975, § 32-7-23(a).

We must also be cognizant of the following principles particularly applicable to UIM coverage.

"It was also held in [ State Farm Automobile Insurance Co. v.] Reaves [, 292 Ala. 218, 292 So.2d 95 (1974),] that Alabama's Uninsured Motorist Statute, Tit. 36, § 74(62a), Code 1940 (now § 32-7-23, Code 1975 ), mandated uninsured motorist coverage for 'persons insured thereunder,' that is, persons insured under the liability provisions of the policy. Thus, a class of insureds named in the provisions of an automobile liability policy in Alabama are provided uninsured motorist coverage regardless of whether that class is specifically named in the policy providing uninsured motorist coverage.
"Therefore, the Court must look to the terms for which the parties contracted in order to ascertain the extent of coverage under uninsured motorist provisions."

Alabama Farm Bureau Mut. Cas. Ins. Co. v. Pigott, 393 So.2d 1379, 1382-83 (Ala. 1981). "[W]here an exclusion in a policy is more restrictive than the uninsured motorist statute, it is void and unenforceable."

Watts v. Preferred Risk Mut. Ins. Co., 423 So.2d 171, 175 (Ala. 1982) ; see also Alabama Farm Bureau Mut. Cas. Ins. Co. v. Mitchell, 373 So.2d 1129, 1134 (Ala. Civ. App. 1979) (stating that "insurance policy provisions that attempt to limit or infringe upon uninsured motorist coverage are contrary to the uninsured motorist statute and are thereby void and unenforceable").

Finally, we note that, when considering whether a contractual provision violates public policy, courts must proceed cautiously.

"[When considering] whether a contractual provision is in violation of public policy, our Supreme Court has repeatedly declared that '[t]he principle that contracts in contravention of public policy are not enforceable should be applied with caution and only in cases plainly within the reason on which the doctrine rests.' Lowery v. Zorn, 243 Ala. 285, 288, 9 So.2d 872, 874 (1942) ; see also, e.g., Livingston v. Tapscott, 585 So.2d 839 (Ala. 1991) ; Ex parte Rice, 258 Ala. 132, 61 So.2d 7 (1952). As our Supreme Court explained in Milton Construction Co. v. State Highway Department, 568 So.2d 784 (Ala. 1990),
" ' "The courts are averse to holding contracts unenforceable on the ground of public policy unless their illegality is clear and certain. Since the right of private contract is no small part of the liberty of the citizen, the usual and most important function of courts of justice is to maintain and enforce contracts rather than to enable parties thereto to escape from their obligations on the pretext of public policy, unless it clearly appears that they contravene public right or the public welfare....
" ' "...." ' "
" 568 So.2d at 788 (quoting 17 Am. Jur. 2d Contracts § 178 (1964) )."

Alfa Specialty Ins. Co. v. Jennings, 906 So.2d 195, 199-200 (Ala. Civ. App. 2005).

The Terms of the Insurance Policy

The Safeway policy issued to Spano contains the following provisions and definitions:

" 'Non-Covered Person' as used in this Policy means:
"....
"4. An operator of a vehicle who is an unlicensed driver or whose driving privileges have been terminated or suspended."

Under Part A, which governs liability coverage, the policy provides:

"We will pay damages for bodily injury or property damage for which a Covered Person, as defined in this part, becomes legally responsible because of an auto accident."

A "Covered Person" under Part A is defined as

"1. You for the ownership, maintenance or use of Your Covered Auto[ ] or trailer, unless it is operated by a Non-Covered Person.
"2. A person, other than a Non-Covered Person, using Your Covered Auto with your express permission within the scope of that permission.
"3. For Your Covered Auto, any person or organization, other than a Non-Covered Person, but only with respect to legal responsibility for acts or omissions of an operator of Your Covered Auto, provided said operator is not a Non-Covered Person."

In Part C, the policy addresses UIM coverage. The policy provides:

"We will pay damages which a Covered Person, as defined in this Part, is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury:
"1. Sustained by a Covered Person; and
"2. Caused by an accident, which in no way involves the operation of any automobile by a Non-Covered Person;
"The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle."

In Part C, "Covered Person" is defined as:

"1. You, and a Family Member other than a Non-Covered Person
"2. Any other person occupying Your Covered Auto (provided it is not operated by a Non-Covered Person)"

In Part C, the policy also contains the following exclusion:

"A. We do not provide Uninsured Motorist Coverage for bodily injury sustained by any person:
"1. During or as a result of operation of any automobile by a Non-Covered Person."

Standard of Review

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. As noted above, the parties stipulated to the facts in this case; thus, the only issue before the trial court, and this court on appellate review, is whether Thomas was entitled to a judgment as a matter of law. See Nationwide Ins. Co. v. Rhodes, 870 So.2d 695, 697 (Ala. 2003).

Discussion

Safeway argues that Thomas is not entitled to UIM coverage because he was a passenger in Spano's automobile ("the covered auto") while it was being driven by Evans, who was not a licensed driver at the time of the accident. Based on the definitions and exclusions stated in the policy, Safeway contends, Thomas's right to any recovery as a passenger in the covered auto was extinguished by the fact that Evans was a noncovered person operating the covered auto. Thomas argues, however, that the unlicensed-driver exclusion violates § 32-7-23 and public policy, which, he says, is that innocent persons are entitled to coverage for damages resulting from an accident with an uninsured or underinsured motorist. The trial court agreed with Thomas that, because he was an innocent passenger, unaware that Evans was an unlicensed driver, he was entitled to coverage.

However, the UIM statute does not require coverage for all "innocent" persons who might be injured by an uninsured or underinsured motorist. Section 32-7-23(a) specifically prescribes that UIM insurance coverage be provided in every insurance policy for "the protection of persons insured thereunder." See Higgins v. Nationwide Mut. Ins. Co., 291 Ala. 462, 465, 282 So.2d 301, 303 (1973) ; State Farm Auto. Ins. Co. v. Reaves, 292 Ala. 218, 223, 292 So.2d 95, 99 (1974) ("[O]nce an automobile liability policy is issued extending coverage to a certain class of insureds under such a clause, uninsured motorist coverage must be offered to cover the same class of insureds."). Nothing in the UIM statute requires coverage for persons who are not insured under the applicable policy, and the determination of those persons to whom liability coverage is extended must be based on the language of the applicable policy. Pigott, 393 So.2d at 1382 ("[T]he mandated reciprocal extent of uninsured motorist coverage is determined by the extent of liability coverage for which the parties have contracted in the same policy."). Spano is the only named insured in her policy; neither Evans nor Thomas are listed on the policy. Spano's policy excludes liability coverage for any person, even her, when the covered auto is being driven by an unlicensed driver. Thus, under § 32-7-23(a), the policy is not required to include UIM coverage under these circumstances.

In addition, § 32-7-23(a) permits a person to reject UIM insurance in whole or in part. Several cases have discussed the rejection of UIM coverage. See Reed v. Farm Bureau Mut. Cas. Ins. Co., 549 So.2d 3, 6 (Ala. 1989) (explaining that the specific language of an exclusion from coverage of a named individual operated only to prevent coverage when that person was driving a covered vehicle); McCullough v. Standard Fire Ins. Co. of Alabama, 404 So.2d 637 (Ala. 1981) (concluding that the exclusion of a named person operated to extinguish a passenger's rights to UIM benefits under the policy when the excluded person was the driver of the covered vehicle); and Safeway Ins. Co. of Alabama, Inc. v. Hambrick, 723 So.2d 93 (Ala. Civ. App. 1998) (concluding that the failure to list a member of the household under age 25 on the insurance application was a rejection of both liability and UIM coverage as to that driver based on the exclusion for unlisted drivers under age 25 living in the insured's household). We find McCullough and Hambrick particularly instructive.

In McCullough, our supreme court considered whether an exclusion that excluded the insurer from liability when the insured's son, Robert, was driving any covered automobile was enforceable to prevent the estate of the passenger killed in the vehicle operated by Robert from recovering UIM benefits or whether the exclusion was void as against public policy. Our supreme court indicated that the appellant, the estate of the deceased passenger, had argued that the issue was " 'whether or not, the restrictive endorsement contained in the liability insurance policy issued herein, was effective to cut off any uninsured motorist coverage running to the benefit of [the deceased passenger].' " McCullough, 404 So.2d at 638. The trial court had declined to find that the deceased passenger was entitled to UIM coverage, stating: " 'This Court knows of no law that gives ... a stranger to a policy of insurance the right to presume that the car in which he rides is covered by the provisions of an uninsured motorist policy.' " Id. Instead, the UIM statute is for the benefit of " 'Alabama citizens purchasing automobile liability insurance' " so that they may " 'be able to obtain for an additional premium the same protection against injury or death at the hands of an uninsured motorist as they would have had if that motorist had obtained for himself the minimum liability coverage required by the Safety Responsibility Act.' " Id. at 638-39 (quoting Higgins v. Nationwide Mut. Ins. Co., 50 Ala. App. 691, 695-96, 282 So.2d 295, 300 (Civ. 1973), aff'd, 291 Ala. 462, 282 So.2d 301 (Ala. 1973) ). Relying in part on the rationale expressed in Southeast Title & Insurance Co. v. Thompson, 231 So.2d 201 (Fla. 1970), our supreme court reasoned that, because the UIM statute allowed an insured to reject UIM coverage, "the failure to carry the coverage does not violate the public policy of this State." Id. at 639. The insured had partially rejected both liability and UIM insurance as to Robert, the court said, and it concluded that the insurer was not required to provide UIM benefits to the estate of the deceased passenger. Id.

Similarly, this court rejected the argument that an injured passenger was entitled to UIM coverage under an insurance policy that excluded coverage for unlisted drivers under 25 years old who resided in the household of the insured. Hambrick, 723 So.2d at 97. When the insured, Patsy White, secured her policy in 1995, she failed to list her son, Travis Lightfoot, as a resident of her household over the age of 14, as required by the application. Id. at 93. In 1997, Lightfoot, who was under 25 years old and a resident of White's household, was driving the covered vehicle when he was involved in an accident with an uninsured motorist. Id. at 94. Kenyon Hambrick, a passenger in the covered vehicle, suffered injuries in the accident. Id. Hambrick sought UIM benefits under White's policy, and Safeway sued, seeking a judgment declaring that it was not required to pay UIM benefits to Hambrick. Id. The trial court determined that Hambrick was entitled to UIM benefits under the policy, and Safeway sought appellate review of that decision. Id. at 95.

Relying on McCullough, we determined that UIM benefits were not due Hambrick under White's policy. Id. at 97. Because UIM coverage (as opposed to the offering of such coverage) is not mandatory, we explained, White's failure to list Lightfoot in her policy application effectively served as a rejection of UIM coverage as to him, and the exclusion in White's policy was enforceable. Id. We noted that Hambrick had paid nothing for the coverage he sought, underscoring the idea in McCullough and Higgins that UIM coverage is for the protection of those who purchase liability insurance and not necessarily everyone who might be injured by an uninsured or underinsured motorist. Id. at 96.

We realize that Thomas has attempted to distinguish cases like Hambrick and McCullough on the ground that those cases involve a rejection of coverage for "specific" individuals. Of course, in Hambrick, it was the failure to list a specific person, Lightfoot, on the insurance application that resulted in the determination that the insured, White, had rejected any coverage for him. Id. at 96-97. The provision upon which that rejection was based in Hambrick, however, was what Thomas refers to as a "blanket" exclusion, excluding coverage for a class of individuals: those under age 25, residing in the household of the insured, who had not been listed on the policy application. Id. The exclusion in the present case is also a "blanket" exclusion, excluding coverage for individuals operating a vehicle who do not have a driver's license. Because Spano agreed that her policy would not cover her automobile if its was driven by an unlicensed driver, she, like White, "partially rejected" UIM coverage in such situations, which she was entitled to do under § 32-7-23(a). See id. at 97.

We also reject Thomas's argument that the unlicensed-driver exclusion is void as against public policy because of a statement contained in Grimes v. Alfa Mutual Insurance Co., 227 So.3d 475, 488 (Ala. 2017). In a discussion of mandatory liability coverage, our supreme court stated that "[a] person who does not own the automobile that he or she operates must purchase an operator's policy or a non-owner policy in order to qualify for a driver's license." Grimes, 227 So.3d at 488. According to Thomas, this "fact" means that an unlicensed driver cannot get a driver's license or insurance, leaving that person with no ability to comply with the law regarding licensing or compulsory liability insurance. The Grimes court cited no statute or caselaw, and we can find none, to support the above-quoted statement, which does not appear to be necessary to the holding in the opinion. Thus, we conclude that the statement is dicta and that Thomas's argument that Evans would be unable to secure a driver's license or insurance is unavailing.

Based on the principles espoused by both our court and our supreme court, we conclude that the trial court erred in declaring that the exclusion in Safeway's policy violated § 32-7-23(a) and public policy. The exclusion is valid under the rationale announced in McCullough and applied in Hambrick. The trial court's judgment in favor of Thomas is therefore reversed, and the cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

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

      The parties appear to agree that the automobile in which Thomas was a passenger was a "covered auto" under the terms of Spano's policy.

      In his appellate brief, Thomas asserts for the first time an argument that Safeway should be estopped from relying on the unlicensed-driver exclusion because it consented to his settlement with Jones for Jones's policy limits. "We decline to consider the question of estoppel, raised for the first time on appeal." Warrior Drilling and Eng'g Co. v. King, 446 So.2d 31, 32 (Ala. 1984).

      Because we have concluded that the exclusion is valid, we need not address Safeway's contention that the trial court rewrote the exclusion by engrafting a knowledge requirement. We note, however, that a court may not rewrite the unambiguous terms of an insurance contract. Johnson, 505 So.2d at 365.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Joshua Ted KELLY v. Chesley Bedwell KELLY
    2170094
    Court of Civil Appeals of Alabama.
    April 6, 2018
    Robert C. King, Monroeville, for appellant.
    H. Benjamin Kelly, Jackson, for appellee.
   DONALDSON, Judge.

Joshua Ted Kelly ("the husband") appeals from an order of the Wilcox Circuit Court ("the trial court") entered in divorce proceedings between the husband and Chesley Bedwell Kelly ("the wife"). The husband argues that the order improperly awarded certain property to the wife and that the child-support award contained in the order does not comply with Rule 32, Ala. R. Jud. Admin.

Before addressing the husband's arguments, however, we must determine whether the husband has appealed from a final judgment and, thus, whether this court has jurisdiction to consider the husband's appeal. See Johnson v. Johnson, 835 So.2d 1032, 1034 (Ala. Civ. App. 2002) ("[T]he question whether a judgment is final is a jurisdictional question."), and Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ("[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.").

The facts pertinent to the disposition of this issue are as follows. The wife filed a complaint for a divorce on February 29, 2016, after the husband had been charged with two felonies, and the husband filed an answer denying the allegations in the wife's complaint. On May 5, 2016, after a hearing, the trial court entered an interlocutory order, based upon the agreement of the parties, that, among other things, ordered the husband to pay $600 each month to the wife as child support for the parties' three children.

On November 21, 2016, by the agreement of the parties, the trial court entered an order in which it divorced the parties and ordered, among other things, that the May 5, 2016, order relating to child custody and child support

"shall remain in force and effect until the criminal case[s] pending against the [husband] ... [are] resolved or disposed of. This Court reserves the jurisdiction to make any modifications necessary to the Temporary Orders entered into and attached hereto while the criminal charges are pending and further retains jurisdiction to make a final determination regarding custody, visitation and child support upon the conclusion of the criminal cases referred to herein."

On March 20, 2017, the husband pleaded guilty to a felony charge and was sentenced to serve 10 years in prison. On April 4, 2017, the trial court held a trial related to the division of the parties' property at which both parties testified.

On July 5, 2017, the trial court entered what it styled as a "Final Order" in which it terminated the husband's visitation with the children and divided the parties' property. The July 5, 2017, order did not award child support to the wife or otherwise reference the husband's child-support obligation. The order stated that "[a]ll provisions of the Judgment of Divorce entered by the Court on November 21, 2016, which are not modified by the provisions of this Order shall remain in full force and effect." The November 21, 2016, order expressly stated that the husband owed a temporary child-support obligation "until the criminal case pending against the [husband] ... is resolved or disposed of," and the trial court expressly stated it would make a "final determination" regarding child support upon the disposition of the criminal charges against the husband.

On July 10, 2017, the husband filed a motion seeking to alter, amend, or vacate the July 5, 2017, order. In his motion, the husband stated, among other things: "[T]he judgment of divorce fails to set child support pursuant to the Alabama Child Support Guidelines." That same day, the trial court entered the following order: "MOTION FOR NEW TRIAL filed by [the husband] is hereby PENDING.... [The wife] has 10 days to respond and file the appropriate child support guideline and income withholding." (Capitalization in original.) On July 13, 2017, the husband filed in the trial court a CS-42 Child-Support Guidelines form. The trial court took no further action, and, on October 19, 2017, the husband filed a notice of appeal to this court.

The husband argues that the trial court's $600 monthly child-support award must be reversed for noncompliance with Rule 32, Ala. R. Jud. Admin. That temporary award, however, terminated upon the resolution of the criminal charges against the husband. In its November 21, 2016, order, the trial court expressly reserved jurisdiction to later make a "final determination" regarding child support after the disposition of the criminal charges against the husband. In the July 5, 2017, order, the trial court did not determine, or otherwise address, the husband's child-support obligation.

"A final judgment is one that ' "disposes of all claims or the rights and liabilities of all parties." ' Wright[ v. Wright], 882 So.2d [361,] 363 [ (Ala. Civ. App. 2003) ] (quoting Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala. Civ. App. 2000) ). In Anderson v. Anderson, 899 So.2d 1008, 1009 (Ala. Civ. App. 2004), this court stated that '[w]here a party has requested child support and the trial court's purported judgment contains no conclusive assessment of the child-support obligation, the trial court has not completely adjudicated the matters in controversy between the parties.' "

N.H. v. T.A.P., 963 So.2d 97, 99 (Ala. Civ. App. 2007).

Because the order from which the husband has appealed does not conclusively determine his child-support obligation, the judgment is not final, and we must, therefore, dismiss the husband's appeal. See N.H., 963 So.2d at 99 (citing Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala. Civ. App. 2006) ) ("The reviewing court, on a determination that a judgment is not final, has a duty to dismiss the case.").

APPEAL DISMISSED.

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

      We note that compliance with Rule 32, Ala. R. Jud. Admin., is mandatory. Wilkerson v. Waldrop, 895 So.2d 347, 348-49 (Ala. Civ. App. 2004).


author: WELCH, Judge.

text:
    T.D.F. v. STATE of Alabama
    CR-16-1202
    Court of Criminal Appeals of Alabama.
    March 16, 2018
    Laura Peterman Wells, Dothan, for appellant.
    Steve Marshall, atty. gen., and Beth Slate Poe, asst. gen., for appellee.
   WELCH, Judge.

T.D.F., a juvenile, was adjudicated delinquent based on the juvenile court's finding that he committed the offenses of second-degree assault, JU-13-378.16, a violation § 13A-6-21(a)(4), Ala. Code 1975, and resisting arrest, JU-13-378.17, a violation of § 13A-10-41, Ala. Code 1975. The juvenile court placed T.D.F. on probation and ordered T.D.F. to complete the Pathway Residential Treatment Program. Probation was to be reviewed in six months. This appeal followed.

Facts

Officer Christopher Thompson with the Dothan Police Department testified that on April 7, 2017, at approximately 4:50 p.m., he and Officer Lindsay Holloway, who were patrolling in separate vehicles, responded to an emergency 911 call made by S.F. reporting her son, T.D.F., as being a disorderly juvenile. Officer Holloway arrived at S.F.'s home, on Darlington Circle, before Officer Thompson. After speaking with S.F., Officer Holloway contacted Officer Thompson and told him that T.D.F. had left S.F.'s home on foot and was walking toward 3rd Avenue carrying two red suitcases.

Officer Thompson testified that he and Officer Holloway originally wanted only to find T.D.F. and talk to him to find out what was going on and to find out if he was running away from home. The officers knew that T.D.F. had a juvenile probation officer; they intended to contact T.D.F.'s probation officer to see what needed to be done, depending on the situation. Officer Holloway located T.D.F. on Donna Drive. When Officer Thompson arrived at that location, he observed Officer Holloway outside her vehicle and T.D.F. walking away from her while she was ordering him to talk to her. Officer Thompson drove his vehicle past T.D.F. and Officer Holloway to the next intersection to block T.D.F. from walking away. When Officer Thompson got out of his vehicle, "[T.D.F.] began yelling 'f*ck y'all'.... He was out in the middle of the street doing that." (R. 27.) Officer Thompson affirmed that "[y]elling 'f*ck y'all' to the police is not illegal." (R. 28.) Officer Thompson stated that he

"informed [T.D.F.] to 'come here' so [he] could talk to him. [T.D.F.] refused. [T.D.F.] started using very colorful language. Again, I told him to come here again. I grabbed the tail of his shirt. At that point [T.D.F.] became very aggressive, started flailing his arms, and at some point Officer Holloway was struck."

(R. 14.) Officer Thompson stated that he was authorized to lay hands on T.D.F. because T.D.F. was given a lawful order to stop and did not comply.

"Q. [Defense Counsel:] ... Is that something that you're allowed to do as a police officer, to put hands on somebody?
"A. [Officer Thompson:] Yes, ma'am. I gave him a lawful order to stop so that we can investigate a potential crime.
"Q. And the potential crime being?
"A. He was a runaway juvenile, off of his medication, acting disorderly, possibly involved in domestic violence."

(R. 24.)

Officer Thompson explained that, "once [he] grabbed [T.D.F.'s] shirt, ... that's when the physical response from [T.D.F.] happened." (R. 25.) "Immediately when [T.D.F.] began flailing his arms and continuing to yell profanities, [Officer Thompson] informed him that he was going to be placed under arrest." (R. 26.) Officer Thompson testified that there was no time to tell T.D.F. what he was under arrest for because everything happened quickly. However, Officer Thompson also testified that he told T.D.F. that he was under arrest for disorderly conduct. However, Officer Thompson stated that T.D.F. was told to stop resisting so the officers could investigate whether he was a runaway juvenile who was off his medication and also, possibly involved in domestic violence. "[T.D.F.] struck Officer Holloway and continued to throw punches at both of [the officers]." (R. 15.) T.D.F. punched Officer Holloway in her face with his fist. T.D.F. was "flailing violently." (R. 16.) Officer Thompson was able to get one handcuff on T.D.F.'s right wrist before all three individuals fell to the ground in the middle of street. T.D.F. was cursing the entire time. Officer Thompson guessed that it took possibly as long as two minutes to gain control over T.D.F. Officer Holloway was injured during the melee. Ultimately, T.D.F. was taken to the Dothan Police Department to talk with an investigator, but he refused.

Officer Holloway with the Dothan Police Department stated that on April 7, 2017, she was dispatched to Darlington Circle as Officer Thompson's backup officer. She arrived before Officer Thompson and she spoke with S.F.

"My understanding was that [T.D.F.] came home from school, I believe, and [S.F.] said that he was not acting right. [T.D.F.] had been throwing things around the house and she said he was going to leave. He was going to pack his bags and leave. She said he was not on his medicine .... I asked her if she wanted me to bring him back to the house if I made contact with him, and she said, 'No,' she did not want him there."

(R. 36.) Officer Holloway assumed that, because S.F. did not want T.D.F. returned home, she wanted the officers to contact T.D.F.'s probation officer. Officer Holloway clarified that S.F. "never" said anything about domestic violence or indicated that she wanted T.D.F. arrested. (R. 37.) Officer Holloway said that, because she thought [T.D.F.] was off of his medication, there needed to be a welfare check on him to make sure he was okay and that that was what she intended to do. Officer Holloway testified that S.F. did not tell her that S.F. had called the police a second time to inform the dispatcher that the officers were no longer needed because the situation had resolved itself and that T.D.F. was going to stay with his aunt.

Officer Holloway left S.F.'s house and soon saw T.D.F. walking with his suitcases in the street on Donna Drive. Officer Holloway stated that she parked her vehicle "catty-corner" to T.D.F.'s path and got out of her vehicle. (R. 30.) She saw Officer Thompson arriving. When she got out of her vehicle, she "attempted to contact [T.D.F.]," but he started "cussing at [her], yelling 'F you.' " (R. 30.) Meanwhile, Officer Thompson parked his vehicle "about four car lengths" in front of T.D.F., who was still walking down the street away from Officer Holloway toward Officer Thompson. (R. 30.) T.D.F. stopped about 10 feet in front of Officer Thompson's vehicle. T.D.F., "threw the suitcases down and tried to take off when [the officers] were trying to get him to come talk to [them]." (R. 31.) "Officer Thompson pulled the back of [T.D.F.'s] shirttail to try to get him to stop, and that's when the fight started." (R. 31.)

"Officer Thompson and [T.D.F.] started fighting. [Officer Thompson] tried to get his arm behind [T.D.F.] and place [T.D.F.] under arrest, and so I went to attempt to grab the other arm-I believe it was [T.D.F.'s] left arm. So there was one of us on each side and we just-we could not get [T.D.F.] to the ground. Every time we would tell him to stop resisting, he would fight a little harder."

(R. 31.) Officer Holloway believed that Officer Thompson advised T.D.F. that he was under arrest. Officer Holloway testified that T.D.F. was being arrested for disorderly conduct because he had failed to obey a lawful order from Officer Thompson. While the officers attempted to get the handcuffs on T.D.F., T.D.F. struck Officer Holloway on her right jaw with his fist. Immediately, she could not hear from her right ear, and her hearing did not return for two weeks. She had to go to the emergency room immediately following the incident and then see a doctor two or three times over a three-week period. She also had an "extremely bruised collarbone," a bruised tail bone, and scratches on her knees and elbows. (R. 32.) Additionally, her Costa brand sunglasses were broken and her G-Shock brand watch was shattered.

The State rested its case, and T.D.F. moved for a judgment of acquittal, arguing that there had been no prima facie case of criminal mischief and disorderly conduct. The juvenile court granted the motion as to the criminal-mischief charge but deferred ruling on the disorderly-conduct charge.

T.D.F. testified that when he came home from school on April 7, 2017, he was mad and he got "into it" with his grandmother who was at his home-it was not physical. Because he was mad, he decided to go to his aunt's house. He had his clothes and a game in his suitcases and he planned to stay the weekend with his aunt. His mother, S.F., knew those were his plans, and she had no objection. When he encountered the police on Donna Street, Officer Holloway pulled up, and he just looked at her and kept walking. T.D.F. denied that he dropped his suitcases and tried to run from the officers. He said that Officer Thompson got in front of him, and T.D.F. did not want to talk to the officers, so he tried to walk away, but according to T.D.F., Officer Thompson grabbed him without saying anything to T.D.F. When Officer Thompson grabbed T.D.F.'s shirt, Officer Holloway grabbed his leg. Then the officers were trying to talk, but T.D.F. told them that he did not have to talk to them. Then, the officers began trying to handcuff T.D.F., and T.D.F. stated that he was not going to be handcuffed because he knew he had not done anything wrong. T.D.F. said a third officer, Officer Jay Arnold, arrived and choked him, and that's when he began using profanity and when they got the handcuffs on T.D.F. He was never told that he was under arrest, and the officers never said he was being disorderly or resisting arrest. He did not throw any punches during his struggle with the officers, and specifically, he testified, he did not punch Officer Holloway.

S.F. testified that on April 7, 2017, T.D.F. was 16 years old. She telephoned for the police because T.D.F. was mad and was being loud. She explained that T.D.F. was mad because his grandmother had forgotten to pick him up from school and he had had to walk home. S.F. told the dispatcher to send an officer to her house. By the time S.F. got off the telephone, T.D.F. had calmed down, so S.F. telephoned his aunt and arranged for T.D.F. to go to the aunt's house. S.F. called the emergency 911 dispatcher again and told her not to send the police because the situation had been resolved, but the dispatcher said she was sending an officer anyway. S.F. also explained that T.D.F. had probably not taken his medicine, but that it was not working as well as it used to and probably needed adjusting. S.F. testified that she did tell Officer Holloway about her second call to emergency 911 canceling her request for an officer. S.F. did not say that T.D.F. was a runaway or that he had committed a crime or done anything to cause him to be arrested or that he was dangerous or that he needed to be taken off the streets. He had not done anything physical, it was "just his mouth." (R. 55.) That was why she called for the police. She explained to the officer that T.D.F. had been mad about being left at school, and that he gets loud and fussy when his medicine is not right. She further told Officer Holloway that the situation was under control and that T.D.F. was on his way to his aunt's house. S.F. never said that T.D.F. had thrown anything. Officer Holloway told S.F. that she intended to look for T.D.F. anyway, and she asked S.F. if she wanted T.D.F. brought home. S.F. told Officer Holloway not to bring T.D.F. home because he was spending the weekend with his aunt. S.F. testified that about five months earlier T.D.F. behaved the same way, and S.F. had called for the police. That time, the police came to her house and they talked to T.D.F. and calmed him down and that was what she was expecting this time, but the situation resolved itself before the police arrived. According to S.F., she explained all that to Officer Holloway.

At the close of all the evidence, T.D.F. moved for a judgment of acquittal, arguing that the police had no probable cause to stop him. He argued that his mother had testified that, even though he had been loud, he was not dangerous, he was not a runaway, she knew where he was going, and there had been no domestic violence. He was walking down the street when the police tried to stop him and talk to him, but then they prevented him from walking away by physically detaining him without any probable cause to believe that he had done anything wrong. The State responded that T.D.F. was a 16-year-old minor on the streets shortly following a display of bad behavior that caused his mother to telephone emergency 911 for help. T.D.F. left home under these circumstances. The State argued that the police had every reason to approach T.D.F. to investigate the situation for which they had been summoned. The State argued that at the time T.D.F. was arrested, the arrest was "just and there was probable cause." (R. 60.)

The juvenile court entered a judgment for an acquittal as to the disorderly-conduct charge, but refused to enter a judgment of acquittal as to the second-degree assault and resisting-arrest charges. The juvenile court found that even if the officers had no probable cause,

"they did have reasonable suspicion, which would justify detaining [T.D.F.] until they could investigate the situation, but they never had the opportunity to investigate the situation because he became immediately combative, according to the evidence, as I interpret the evidence, and was fighting and resisting the officers."

(R. 61.) The defense made no further argument regarding the sufficiency of the evidence. There was no postjudgment motion. T.D.F. appealed.

Analysis

Because this is a juvenile-court matter in which the juvenile-court judge is the trier of fact, we are mindful of the following:

"Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala. 1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala. 1994)."

Ex parte Agee, 669 So.2d 102, 104 (Ala. 1995). See R.L.L. v. State, 564 So.2d 474, 476 (Ala. Crim. App. 1990) ; C.D.U. v. State, 552 So.2d 178, 180 (Ala. Crim. App. 1989) ("When evidence is presented ore tenus, the court's decision must be given every reasonable presumption and we will not overturn its finding 'if it was supported by credible evidence unless it was palpably wrong.' Department of Human Resources v. Middleton, 519 So.2d 540 (Ala. Civ. App. 1987).").

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

R.B.H. v. State, 762 So.2d 382, 383 (Ala. Crim. App. 1999) (quoting A.A.G. v. State, 668 So.2d 122, 124 (Ala. Crim. App. 1995) ).

The general standard for assessing the sufficiency of the evidence is applicable to the review of juvenile proceedings. See J.W.B. v. State, 651 So.2d 73, 75 (Ala. Crim. App. 1994) (applying " '[t]he general standard by which we review the evidence' " to a juvenile proceeding (quoting Robinette v. State, 531 So.2d 682, 687 (Ala. Crim. App. 1987) ) ).

"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. Cr. 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. Cr. App. 1980), 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. Cr. 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. Cr. 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."

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

Additionally, it is well settled that "[t]he weight and probative value to be given to the evidence, the credibility of the witnesses, the resolution of conflicting testimony, and inferences to be drawn from the evidence are for the [trier of fact]." Smith v. State, 698 So.2d 189, 214 (Ala. Crim. App. 1996), aff'd, 698 So.2d 219 (Ala. 1997). See Ex parte Vaughn, 495 So.2d 83 (Ala. 1986). See also C.J. v. Marion Cty. Dep't of Human Res., 5 So.3d 1259, 1271 (Ala. Civ. App. 2008) (discussing the ore tenus presumption and the role of the juvenile court judge as the " 'sole judge of the facts and of the credibility of witnesses' " (quoting Woods v. Woods, 653 So.2d 312, 314 (Ala. Civ. App. 1994) ) ).

I.

T.D.F. contends on appeal that the trial court erred when it denied his motion for a judgment of acquittal because, he says, there was insufficient evidence establishing that T.D.F.'s arrest was lawful and there was insufficient evidence of resisting arrest. In his brief, T.D.F. first asserts, as he did at trial, that the officers had no probable cause to stop him. He then argues for the first time that the juvenile court erred in denying his motion by finding that the officers had reasonable suspicion to detain T.D.F. He then asserts that there was insufficient evidence of resisting arrest because, he says, T.D.F. was not combative until the officers tried to illegally restrain him.

Initially, T.D.F.'s appellate claim that the juvenile court erred in denying his motion for a judgment of acquittal by finding that the officers had reasonable suspicion to detain T.D.F. was not presented to the trial court; thus, it is not preserved. It is well settled that "[i]n order to preserve an issue for our review, a party must first specifically raise the issue before the trial court, [and] [t]he trial court must be given the first opportunity to address the issue." Meadows v. State, 773 So.2d 1053, 1054 (Ala. Crim. App. 2000) (internal citations omitted). T.D.F. moved for a judgment of acquittal only on the ground that the police did not have probable cause, and he failed to object to the juvenile court's finding that officers had reasonable suspicion to detain him. Because T.D.F. has challenged for the first time on appeal the trial court's finding of reasonable suspicion, it is not preserved for this Court's review. "An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented." Pate v. State, 601 So.2d 210, 213 (Ala. Crim. App. 1992) ; Jordan v. State, 574 So.2d 1024, 1025 (Ala. Crim. App. 1990) (holding that claim was not preserved for appellate review where defendant did not first present his argument to the trial court). Therefore, T.D.F. is not entitled to review of his claim that the juvenile court erred in finding that the police officers acted with reasonable suspicion when they stopped T.D.F.

Furthermore, the officers did not need probable cause or reasonable suspicion to engage in a conversation with T.D.F. The officers had the right to approach T.D.F. on the street and to speak with him; this is even more so if, as the officers testified, they saw T.D.F. walking in the middle of the street.

" 'The Fourth Amendment comes into play only if the police have made a "seizure." "[I]nterrogation relating to one's identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure." I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984).... Not every encounter between an individual and a police officer is a seizure. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) ; United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) ; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976).'
" Worthy v. State, 473 So.2d 634, 636 (Ala.Crim.App.1985). '[C]haracterizing every street encounter between a citizen and the police as a "seizure," while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices.' United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)."

Doucette v. State, 10 So.3d 117, 119-20 (Ala. Crim. App. 2008). Doucette also cites State v. Harris, 384 N.J.Super. 29, 45, 894 A.2d 8, 17-18 (2006) ("Brief, non-intrusive encounters with individuals on the street or in parked cars implicate none of the privacy or security concerns engendered by discretionary police spot checks of moving vehicles."), and In re the Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn. 1993) ("[T]he mere act of approaching a person who is standing on a public street or sitting in a car that is parked and asking questions is not a 'seizure.' ").

" ' "[I]f an officer merely walks up to a person standing or sitting in a public place (or, indeed, who is seated in a vehicle located in a public place) and puts a question to him, this alone does not constitute a seizure." ' "

Doucette v. State, 10 So.3d 117, 121 (Ala. Crim. App. 2008) (quoting Ex parte Betterton, 527 So.2d 747 (Ala. 1988), quoting in turn 3 W. LaFave, Search & Seizure § 9.2(h) (2d ed. 1987)(footnotes omitted) ); United States v. Willis, 759 F.2d 1486, 1495 (11th Cir. 1985) (holding that police-citizen encounters of a restricted investigative scope conducted in a noncoercive manner do not trigger Fourth Amendment protections).

However, the United States Supreme Court has ruled that, unless the police have reasonable suspicion or probable cause to stop an individual, the police may be ignored.

" ' "[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.... [ Florida v. Royer, 460 U.S. 491, 498 (1983) ]. And any 'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.' Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not 'going about one's business'; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning." ' "

W.D.H. v. State, 16 So.3d 121, 126 (Ala. Crim. App. 2008) (quoting Ex parte James, 797 So.2d 413, 417 (Ala. 2000), quoting in turn Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (emphasis added) ).

Officer Holloway testified that, when Officer Thompson arrived, T.D.F. stopped walking about 10 feet in front of Officer Thompson's car, and he "threw the suitcases down and tried to take off when [they] were trying to get him to come talk to [them]." (R. 31.) The implication from "taking off" is that T.D.F. tried to run from the officers. Therefore, as stated in W.D.H., T.D.F.'s attempt to flee provided Officer Thompson with the authority to grab T.D.F. by his shirttail to prevent his flight. Then, T.D.F.'s immediate physical resistance elevated what was intended to be nonintrusive questioning for the purpose of a welfare check into the offenses of resisting arrest and assault.

Therefore, based on the above, the juvenile court did not err in denying T.D.F.'s motion for a judgment of acquittal as to the second-degree-assault and resisting-arrest charge.

II.

T.D.F. contends that his adjudication for both resisting arrest pursuant to § 13A-10-41, Ala. Code 1975, and second-degree assault pursuant to § 13A-6-21(a)(4), Ala. Code 1975, was a violation of the Double-Jeopardy Clause. This claim was raised for the first time on appeal as a jurisdictional defect. Multiple convictions in a single proceeding for both a greater- and a lesser-included offense has been recognized as a double-jeopardy claim that implicates the trial court's jurisdiction. See Ex parte Benefield, 932 So.2d 92 (Ala. 2005).

T.D.F. was charged with violating § 13A-10-41, Ala. Code 1975, which defines resisting arrest as:

"(a) A person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of himself or of another person."

T.D.F. was charged with second-degree assault, which is defined in § 13A-6-21(a)(4), Ala. Code 1975, as:

"(a) A person commits the crime of assault in the second degree if the person does any of the following:
"....
"(4) With intent to prevent a peace officer, as defined in Section 36-21-60 ... from performing a lawful duty, he or she intends to cause physical injury and he or she causes physical injury to any person...."

The State concedes on appeal that the principles against double jeopardy have been violated because, as T.D.F. was charged, resisting arrest is a lesser-included offense to second-degree assault. The State asserts that the adjudication for second-degree assault should be affirmed, but that the case should be remanded to the juvenile court with directions to set aside the adjudication for resisting arrest.

"(a) ... An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.
"....
"(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission."

§ 13A-1-9, Ala. Code 1975.

"In Blockburger v. United States, the Supreme Court of the United States enumerated the 'same elements' test for determining whether two charges constitute the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299 (1932). Under the Blockburger test, 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Id. (emphasis added). The United States Supreme Court has also held 'that a lesser included and a greater offense are the same under Blockburger....' Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977). See also Perkinson v. State, 273 Ga. 491, 494, 542 S.E.2d 92, 95 (2001) ('For double jeopardy purposes, a lesser-included and a greater offense are the "same offense" under the Fifth Amendment because the lesser offense requires no proof beyond that which is required for the conviction of the greater offense.')."

Gholston v. State, 57 So.3d 178, 184 (Ala. Crim. App. 2010).

The State correctly asserts that this case is no different than Crear v. State, 591 So.2d 530 (Ala. Crim. App. 1991). In Crear, this Court found resisting arrest to be a lesser-included offense to third-degree assault as charged under § 13A-6-22(a)(4), Ala. Code 1975. Under § 13A-6-22(a)(4), a person commits third-degree assault if, "with intent to prevent a peace officer from performing a lawful duty, he causes physical injury to any person." The Crear court reasoned that both § 13A-1-9(a)(1) and (a)(4) were satisfied because "[r]esisting arrest is established, under the facts of this case, by fewer than all the facts required to establish subsection [13A-6-22](a)(4) assault, and it differs, under the facts of this case, from subsection [13A-6-22](a)(4) assault only in that it contemplates a lesser injury or risk of injury to the peace officer." 591 So.2d at 534. This Court rejected the State's argument in Crear asserting that resisting arrest and third-degree assault were two different acts. This Court stated:

"The problem with this argument is that the offenses charged in the indictments were assaults 'with intent to prevent [the officers] from performing a lawful duty,' and not other assault offenses. Compare § 13A-6-22(a)(1) ('A person commits the crime of assault in the third degree if [w]ith intent to cause physical injury to another person, he causes physical injury to any person.'). When the charged offense subsumes another crime as a lesser included offense, appellant's commission of any other uncharged crime is simply immaterial to the lesser included offense analysis."

Crear v. State, 591 So.2d 530, 534 (Ala. Crim. App. 1991).

The State correctly concedes that the Crear analysis applies in T.D.F.'s case because T.D.F. was charged with second-degree assault for acting "with intent to prevent a peace officer ... from performing a lawful duty." § 13A-6-21(a)(4), Ala. Code 1975. Therefore, as in Crear, both § 13A-1-9(a)(1) and (a)(4) were satisfied because resisting arrest was established, under the facts of this case, by fewer than all the facts required to establish second-degree assault under § 13A-6-21(a)(4), and it differs, under the facts of this case, from second-degree assault under § 13A-6-21(a)(4) only in that it contemplates a lesser injury or risk of injury to the peace officer.

Therefore, T.D.F.'s adjudication as a delinquent based on resisting arrest and second-degree assault, as they are charged in his case, violate the prohibition against double jeopardy. Therefore, based on the forgoing, T.D.F.'s adjudication as a delinquent based on second-degree assault is affirmed; however, this cause is remanded to the juvenile court with directions to set aside the adjudication based on resisting arrest.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      The juvenile court granted T.D.F.'s motion for judgment of acquittal as to the following charges: two counts of second-degree criminal mischief, case JU-13-378.14; disorderly conduct, JU-13-378.15; and second-degree criminal trespass, JU-13-378.18.

      Neither T.D.F.'s condition nor his medication was described in the record.

      Officer Holloway testified that the ear piece that she wore for work had bruised her eardrum.

      " ' "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." '
      "State v. Foreman, 133 N.C.App. 292, 515 S.E.2d 488 (1999), quoting State v. Farmer, 333 N.C. 172, 187, 424 S.E.2d 120, 129 (1993), quoting in turn United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). 'Mendenhall establishes that the test for existence of a "show of authority" is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person.'California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)."
      Doucette v. State, 10 So.3d at 122. Here, this Court does not consider the presence of two officers, without more, to have been threatening. Officers often work in pairs. Moreover, this Court does not consider that it was threatening for Officer Thompson to park four car lengths away from T.D.F. in a position that blocked T.D.F.'s path. At that distance, T.D.F. was not confined and should not have perceived Officer Thompson as a threatening or compelling presence.


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    District Court of Appeal of Florida, First District.
    August 24, 2018
    DECISION WITHOUT PUBLISHED OPINION
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
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    District Court of Appeal of Florida, First District.
    December 11, 2018 Rehearing Denied February 19, 2019
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    David RODRIGUEZ LOPEZ, Appellant, v. STATE of Florida, Appellee.
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    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied February 22, 2019
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    District Court of Appeal of Florida, First District.
    December 27, 2018 Rehearing Denied February 22, 2019
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   AFFIRMED.


text:
    David Charles SUSSMAN, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D17-5356
    District Court of Appeal of Florida, First District.
    December 21, 2018 Rehearing Denied February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Richard HENDRICKSON, Appellant, v. Melissa ROCKS and o/b/o Minors, Appellee.
    No. 1D17-3898
    District Court of Appeal of Florida, First District.
    December 21, 2018 Rehearing Denied February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David CHALLENDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2589
    District Court of Appeal of Florida, First District.
    January 30, 2019 Rehearing Denied February 27, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Patrick GANSERT, Appellant/Cross-Appellee, v. CITY OF LARGO/JOHNS EASTERN COMPANY, INC., Appellees/Cross-Appellants.
    No. 1D17-3885
    District Court of Appeal of Florida, First District.
    January 25, 2019 Rehearing Denied February 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Connor Julian PRIDGEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0078
    District Court of Appeal of Florida, First District.
    January 16, 2019 Rehearing Denied February 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lemuel L. COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1520
    District Court of Appeal of Florida, First District.
    January 16, 2019 Rehearing Denied March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Douglas MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1607
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1604
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    April Dawn COURSON (Ricks-Daniels), Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1141
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Robert William WOODHAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3813
    District Court of Appeal of Florida, First District.
    January 3, 2019 Rehearing Denied February 18, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eduar WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1032
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Savanna Rae SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0873
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Angus KELLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1833
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Douglas MANNING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1608
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Jermiah LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3495
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Larry ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1256
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Amos TAMBUNGA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1173
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lee SHIVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3104
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Daniel Shawn BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1156
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daryll R. GOODING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2747
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jonathan MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2561
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Matthew Aaron CRAWFORD-LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0795
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Queen MCCARTY, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0710
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lloyd Dale SHANNON Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5401
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Charles E. CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2043
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Olivia Kaye WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5121
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cantrell L. DENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3038
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Wade BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2330
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Talal Tanweed DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4362
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tremaine SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4192
    District Court of Appeal of Florida, First District.
    February 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lorenzo BROOKS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D18-2201
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Certiorari is denied.


text:
    Gregory HARRIS, Appellant, v. STATE of Florida; Judge Thomas Rebull; Assistant State Attorney Griska Mena Rodriguez; Assistant State Attorney Steven Demanovich; Assistant State Attorney Natalie Snyder; Assistant Public Defender Kelly Foster; Jelani Davis; Johnny Broudy, Appellees.
    No. 1D18-1849
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    David R. MILLER, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D18-1183
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Francis W. PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2376
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Aaron Kenny WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1163
    District Court of Appeal of Florida, First District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles CANNON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4947
    District Court of Appeal of Florida, First District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sean Frederik FRANKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-979
    District Court of Appeal of Florida, First District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Irwin HICKS, Jr., Appellant, v. Mark S. INCH, Secretary, Department of Corrections, Appellee.
    No. 1D17-5091
    District Court of Appeal of Florida, First District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    H.A. BUIE, Jr., as Personal Representative of the Estate of Hugh A. Buie, Sr., and Suzanne B. MacDonald and Hugh A. Buie, Jr. as Co-Trustees of the Hugh A. Buie, Sr. Family Irrevocable Trust, Under Trust Agreement Dated January 19, 2000, Appellants, v. BLUEBIRD LANDING OWNERS ASSOCIATION, INC., and Old Republic National Title Insurance Company, Appellees.
    Nos. 1D17-4331 1D18-0088
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2773
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    BEACH COMMUNITY BANK, a Florida Banking Corporation, Appellant, v. Robert O. BEASLEY, as Personal Representative of the Estate of Donald W. Moore, Deceased, Appellee.
    No. 1D17-4630
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    CSX TRANSPORTATION, INC., Appellant, v. Samuel F. BELCHER, Appellee.
    No. 1D17-4581
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William R. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5187
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nathan Deane BENSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2459
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    James Hunter CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2092
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jose Luis DURAN, Appellant, v. State, DEPARTMENT OF REVENUE, and Margarita Gutierrez, Appellees.
    No. 1D18-987
    District Court of Appeal of Florida, First District.
    February 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Leroy Anthony PENNINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3981
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    STATE of Florida, Appellant, v. Artavis Jamar MALLARY, Appellee.
    No. 1D17-3246
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kevin SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5016
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert Alan COSTELLO, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1072
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    State of Florida, DEPARTMENT OF REVENUE, Appellant, v. Bobby J. WILLIAMS and Sabrina Stein, Appellees.
    No. 1D16-4702
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Adeyemi O. AKANNI, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3645
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vencil THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0739
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Georgia ACKERMANN, Appellant, v. JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, et al., Appellees.
    No. 1D18-3014
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cory Alexander BUDGETS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5159
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tyrone M. FROST, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-45
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Freddie Roosevelt TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3034
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Micah SOLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4785
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James Rodger DUKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2494
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Naim STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3645
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deborah STEELE, Petitioner, v. AMR AMERICAN AIRLINES and Sedgwick CMS, Respondents.
    No. 1D18-691
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Jamil RASHID, aka Richard Lee McCoy, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5272
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Albert Perry WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2089
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Austin Daniel ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4725
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Giovanni VELEZ , Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D17-4705
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Malcolm T. WATKINS, Appellant, v. FLORIDA BOARD OF PROFESSIONAL ENGINEERS, Appellee.
    No. 1D17-4552
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Starquineshia D. PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3601
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bobby Joe DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3556
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Terrance COOPER, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D18-338
    District Court of Appeal of Florida, First District.
    January 7, 2019 Rehearing Denied February 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    David D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4636
    District Court of Appeal of Florida, First District.
    January 7, 2019 Rehearing Denied February 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Timothy D. MOULTRIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5418
    District Court of Appeal of Florida, First District.
    March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mary HOOPER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, an Agency of the State of Florida, Appellee.
    No. 1D17-4783
    District Court of Appeal of Florida, First District.
    March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Mary HOOPER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 1D17-2342
    District Court of Appeal of Florida, First District.
    March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    J.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3632
    District Court of Appeal of Florida, First District.
    March 5, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Carlos Y. PIEDAD a/k/a Carlos Y. Fleita-Speidad, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3682
    District Court of Appeal of Florida, Second District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Steven C. FUSTOLO, Petitioner, v. OLD HILL PARTNERS INC. and John C. Howe, Respondents.
    No. 1D18-1751
    District Court of Appeal of Florida, First District.
    January 10, 2019 Rehearing Denied February 26, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Michael Brad ORSO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4370
    District Court of Appeal of Florida, First District.
    January 10, 2019 Rehearing Denied February 19, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard D. COONAN, Appellant, v. Julia COONAN, Appellee.
    Case No. 2D18-309
    District Court of Appeal of Florida, Second District.
    Opinion filed December 7, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Nathan J. MACK, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-3081
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Timothy Justin TACY, Sr., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-5070
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    John L. NORMAN, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0149
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Albert M. ROBINSON, Appellant/Petitioner(s), v. SECTION 23 PROPERTY OWNER'S ASSOCIATION, Appellee/Respondent(s).
    CASE NO.: 2D19-0514
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Demetrius MALDONADO, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0562
    District Court of Appeal of Florida, Second District.
    March 14, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    C. L., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-4340
    District Court of Appeal of Florida, Second District.
    March 07, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Otis BLAXTON, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4573
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Anderson STARR, II, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0233
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Roger Dale BRANAM, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4965
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Tremaine Latroy BAILEM, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0511
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Gary L. WOODROFFE, Appellant/Petitioner(s), v. FEDERAL NATION MORTGAGE, a/k/a Fannie Mae, et al., Appellee/Respondent(s).
    CASE NO.: 2D19-0110
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Alan Boyd CURTIS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0454
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Edgar ZUNIGA-MEJIA, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0643
    District Court of Appeal of Florida, Second District.
    March 12, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is transferred.


text:
    Katrina WADE, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D19-0378
    District Court of Appeal of Florida, Second District.
    February 15, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismisses.


text:
    Norman R. GRINDLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D18-4990
    District Court of Appeal of Florida, Second District.
    February 13, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    In the INTEREST OF J.V., J.V., and A.V., Children.
    M.V., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-4283
    District Court of Appeal of Florida, Second District.
    Opinion filed January 30, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Quinton Lee KNIGHT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3240
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michelle Lea PULSINELLI, DOC #T90671, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4385
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert STERN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1751
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vetrony LIVINGSTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2174
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    George TRICE, DOC #103231, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2501
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Albino CONTRERAS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-4183
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Alfonso S. BROWN, DOC #C08231, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1062
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Gloria M. PINO f/k/a Gloria Pino Blume, Appellant, v. Craig D. BLUME, Appellee.
    Case No. 2D18-1341
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eddie SEAGO, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2955
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Harvey DEMAREST, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2957
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Patrick LOVE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-3008
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles DORNS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4684
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Michael Wyne MUMFORD, DOC #S42898, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1617
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    William Paul MOSELEY, Petitioner, v. STATE of Florida, Respondent.
    Case No. 2D18-2674
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Isiah TURNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2913
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Bruce Edward DUKES, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2925
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Justin S. HEMLEPP and Mariah Bosetti-Hemlepp, Petitioners, v. Nanci X. RODRIGUEZ, Respondent.
    Case No. 2D18-1504
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Alfonso K. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2927
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dominick HARVEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-2965
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    In the INTEREST OF L.M., a child.
    P.M., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D18-3126
    District Court of Appeal of Florida, Second District.
    Opinion filed February 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Donald BRADMAN and Jean A. Moody-Bradman a/k/a Jean Moddy-Bradman, Appellants, v. FORE RIVER, LLC, Unknown Tenant #1 n/k/a John Doe, and Unknown Tenant #2 n/k/a Jane Doe, Appellees.
    Case No. 2D18-2159
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Scott DUGAN, Appellant, v. Jekaterina FEDOSEJEVA, Appellee.
    Case No. 2D18-2691
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    LEE COUNTY, a Political Subdivision of the State of Florida, Appellant, v. Donna WARD and Glenn Johnson, Appellees.
    Case Nos. 2D17-163 2D17-4640
    District Court of Appeal of Florida, Second District.
    Opinion filed January 2, 2019 Rehearing Denied March 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    In the INTEREST OF B.B.B., a child.
    C.B., Appellant, v. Thomas N. Fischgrund, Appellee.
    Case No. 2D18-1290
    District Court of Appeal of Florida, Second District.
    Opinion filed January 2, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Leonard JOSEPH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2284
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Carlos PARADA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2483
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James CASIMIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2306
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Francisco J. PLACENCIA, Appellant, v. BANK OF NEW YORK MELLON, etc., Appellee.
    No. 3D17-1845
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Simon R. PEARSALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-663
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Cleo FRANK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-0600
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Daron E. SNEED, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2116
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Arthur DEBOSE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2372
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Ymeric SANON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3714
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Raudel DEL TORRO MEJAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1202
    District Court of Appeal of Florida, Third District.
    Opinion filed January 16, 2019.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Keavin A. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-592
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2018]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kayan Emmanuel SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-919
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Juan J. WILLIAMS, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF the INDYMAC INDX MORTGAGE LOAN TRUST 2004-AR12, Mortgage Pass-Through Certificates, Series 2004-AR12 Under the Pooling and Servicing Agreement Dated November 1, 2004, Appellee.
    No. 4D18-1135
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Dennis Earl WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-977
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Andre PIERRE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1104
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Kenakil Chuka Charles GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2858
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jeffrey GABRIEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3119
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tamra FIORITO, Appellant, v. HERITAGE PARK HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D17-3946
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Luciano DEL LUPO and Marie Luisa Del Lupo, Appellants, v. BAYVIEW LOAN SERVICING, LLC, The Meadows Maintenance Association, Inc., The Town Foundation, Inc. and SunTrust Bank, Appellees.
    No. 4D17-3634
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Augustus FONTAINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3855
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Annie M. KAPLAN, Appellant, v. PALM TRAN, INC., a Florida Not For Profit Corporation, and Palm Beach County Board of County Commissioners, Appellees.
    No. 4D18-154
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    WING KEI HO and Karen C. Yeh Ho, Appellants, v. NATIONSTAR MORTGAGE LLC, Mortgage Electronic Registration Systems, Inc. for Countrywide Home Loans, Inc. n/k/a Bank of America, N.A., La Florence at Renaissance Commons Homeowners Association Inc, Renaissance Commons Master Association, Inc., Appellees.
    No. 4D18-1205
    District Court of Appeal of Florida, Fourth District.
    [January 31, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richardson JULES, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-790
    District Court of Appeal of Florida, Fourth District.
    [February 7, 2019]
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.