author: THOMAS, Judge.

text:
    JASPER WATER WORKS AND SEWER BOARD, INC. v. Jerry G. DUNN
    2160666
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Jonathan L. Berryhill and James E. Mitchell, Jr., of Wilson & Berryhill, P.C., Birmingham.
    John E. Warren III and Horace H. Nation IV of Warren & Associates, L.L.C., Jasper.
   THOMAS, Judge.

Jasper Water Works and Sewer Board, Inc. ("the employer"), appeals from a judgment entered in favor of Jerry G. Dunn ("the employee") by the Walker Circuit Court pursuant to the Alabama Workers' Compensation Act ("the Act"), § 25-5-1 et seq., Ala. Code 1975.

Although neither party has raised the issue of this court's jurisdiction over this appeal, jurisdictional matters are of such magnitude that this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala. Civ. App. 2003).

The judgment reads, in pertinent part:

"9. The Court finds that the [employee] has incurred certain medical expenses related to his on-the-job injury and said expenses are reasonable and necessary and are directly a result of his on-the-job injury while working for [the employer], and shall be paid by the [employer]."

(Emphasis added.)

The circuit court did not specify the amount of damages for the employee's past medical expenses; therefore, we dismiss the employer's appeal as having been taken from a nonfinal judgment. See Ex parte Baptist Health Sys., Inc., 966 So.2d 920, 923 (Ala. 2007) ("Because the trial court in this case has not specified the amount of damages to be awarded to [the employee] for past medical expenses, the trial court has not rendered a final judgment that will support an appeal.").

As our supreme court has explained:

" ' "An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties." Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala. 2001). "[W]ithout a final judgment, this Court is without jurisdiction to hear an appeal." Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).'
" Hamilton v. Connally, 959 So.2d 640, 642 (Ala. 2006).
"This Court has noted:
" '[I]t must be remembered that "[d]amages are [an element] of a claim to vindicate a legal right." Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala. 2001).
" ' "Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages." Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala. 1977). "That a judgment is not final when the amount of damages has not been fixed by it is unquestionable." " Automatic" Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala. 1977).'
" Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala. 2004).
"In Williams Power[, Inc. v. Johnson, 880 So.2d 459 (Ala. Civ. App. 2003) ], the Court of Civil Appeals held that an order in a workers' compensation case purporting to award damages for past medical expenses was not a final judgment, because the order did not specify the amount of those expenses. 880 So.2d at 460-61. The Court of Civil Appeals stated:
" ' "It is well established that a final judgment is a 'terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.' Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala. Civ. App. 1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts."
" ' Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ. App. 1990) (emphasis added). See, e.g., Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala. 1977) ("Where the amount of damages is an issue ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages."). In this case, the amount of damages pertaining to past medical expenses was not specified by the trial court, and, thus, the appeal has been taken from a nonfinal judgment.
" 'In GAF Corp. v. Poston, 656 So.2d 1225 (Ala. Civ. App. 1995), the issue before this court was the payment of medical expenses for the medical treatment rendered to the employee for his work-related injury. This court explained that "the trial court specifically detailed the periods of treatment and the corresponding amount of expenses; however, only a few of these amounts are reflected in the exhibits the worker submitted as evidence of the amount of medical expenses." Poston, 656 So.2d at 1228. This court concluded:
" ' "Although the trial court did not err in its findings regarding the company's liability for the medical treatments performed by Dr. Rodning, we are unable to determine if the trial court determined the correct amount of medical expenses from the record. We remand the cause for the trial court to determine the proper amount of medical expenses which are supported by the record."
" ' Poston, 656 So.2d at 1228.
" 'Unlike Poston, in the present case the trial court did not make an award of a sum certain for past medical expenses. Therefore, its order was not a final judgment. A nonfinal judgment will not support an appeal.
Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala. Civ. App. 1998). We therefore dismiss the appeal.'
" 880 So.2d at 461."

Ex parte Baptist Health Sys., Inc., 966 So.2d at 922-23.

The circuit court's judgment fails to contain a specified amount of past medical expenses incurred by the employee that the employer is required to pay and is therefore not final. Thus, on the authority of Ex parte Baptist Health System, Inc., we dismiss the appeal. See also Fort James Holding Co. v. Morgan, 54 So.3d 897, 898 (Ala. Civ. App. 2010).

APPEAL DISMISSED.

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


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    BIRMINGHAM PLANNING COMMISSION v. Andrew LAIRD, Charles Cleveland, and Dr. Peter Hendricks
    Altamont School v. Andrew Laird, Charles Cleveland, and Dr. Peter Hendricks
    2160898 2160907
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Brian Kilgore, asst. city atty., City of Birmingham Law Department, for appellant Birmingham Planning Commission.
    V. Blair Druhan Bullock and T. Michael Brown of Bradley Arant Boult Cummings LLP, Birmingham, for appellant Altamont School.
    Jennifer K. Wales, Frederick A. Erben, and Raymond L. Pharo, Jr., of Beddow, Erben & Bowen, PA, Birmingham, for appellees.
   MOORE, Judge.

In appeal number 2160898, the Birmingham Planning Commission ("the planning commission") appeals from a judgment entered by the Jefferson Circuit Court ("the circuit court") issuing a writ of mandamus to the planning commission directing it "to deny the application for the [proposed development of a] subdivision ... filed by the Brook Hill School." In appeal number 2160907, the Altamont School ("Altamont"), formerly known as the Brook Hill School, appeals from the circuit court's order denying its motion to intervene in the mandamus proceedings.

Procedural History

On August 18, 2016, Altamont submitted an application to the planning commission in which it sought approval to combine two lots in the Buckingham Place subdivision with one lot in the Clairmont Addition to Forest Park Sector Two subdivision to create "Buckingham Place Plat No. 2" ("the proposed subdivision"). On September 16, 2016, the planning commission's "subdivision committee" approved Altamont's application for the proposed subdivision, subject to certain conditions. On September 27, 2016, Andrew Laird, Charles Cleveland, and Dr. Peter Hendricks ("the neighboring property owners"), all of whom own property in the Clairmont Addition to Forest Park Sector Two subdivision, filed a notice of appeal to the planning commission, pursuant to Section 3.11 of the Subdivision Regulations of the City of Birmingham ("the subdivision regulations") and § 11-52-32(d), Ala. Code 1975. After a hearing on November 6, 2016, the planning commission orally granted the application for the proposed subdivision.

On November 11, 2016, the neighboring property owners filed a petition in the circuit court requesting the court to issue a writ of mandamus to the planning commission directing it to deny Altamont's application for the proposed subdivision. The neighboring property owners attached documents in support of their mandamus petition. On December 6, 2016, the circuit court set the matter for a hearing to be held on January 5, 2017. On December 30, 2016, the planning commission filed a response to the mandamus petition; it did not submit any documents in support of its response. That same day, the planning commission filed a motion to continue the January 5 hearing, asserting that it had "submitted an hour and a half long recording of [the subdivision committee's] September 14, 2016, meeting ... to be transcribed" and that a continuance was necessary in order to have the transcription completed before the hearing; the circuit court granted that motion.

On January 17, 2017, Altamont filed a motion to intervene in the action. On April 6, 2017, the neighboring property owners filed an objection to the motion to intervene. After a hearing, the circuit court entered an order on May 4, 2017, denying Altamont's motion to intervene. On May 8, 2017, the circuit court entered a judgment concluding that the planning commission had not complied with Section 3.12 of the subdivision regulations because "factual evidence provided to the Subdivision Committee or Planning Commission does not support the criteria established by the regulations." Specifically, the circuit court concluded, in pertinent part:

"The record attached to the Petition for Writ of Mandamus is void of factual evidence presented by the subdivider confirming the suitability of lands for the proposed consolidation. The evidence presented by the [neighboring property owners] demonstrates the adverse effects to the general welfare of surrounding subdivisions. This Court has been unable to locate in the record where the Subdivision Committee or the Planning Commission considered the reclassification of land, the consistency of land use, the detriment, if any, to adjacent property owners and the public, and the character of uses of adjacent property owners."

The circuit court granted the mandamus petition and issued a writ directing the planning commission to deny Altamont's application for the proposed subdivision.

On May 12, 2017, the planning commission and Altamont filed separate postjudgment motions. On May 22, 2017, the planning commission filed a supplement to its postjudgment motion, attaching the transcript of the hearing held before the planning commission's subdivision committee on September 14, 2016; that transcript indicated that it had been transcribed on May 15, 2017. On June 8, 2017, the neighboring property owners filed a response to the postjudgment motion and supplement thereto filed by the planning commission and moved to strike the transcript attached to the supplement. On June 22, 2017, the circuit court granted the motion to strike and denied the postjudgment motions filed by the planning commission and Altamont. On August 3, 2017, the planning commission and Altamont filed separate notices of appeal; this court consolidated the appeals, ex mero motu.

Discussion

Appeal No. 2160898

On appeal, the planning commission argues that the circuit court erred in granting the petition for the writ of mandamus filed by the neighboring property owners because, it says, the planning commission's decision was not arbitrary and capricious.

" 'Mandamus is an extraordinary remedy requiring a showing that there is: " '(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' " Ex parte Leigeber, 623 So.2d 1068, 1071 (Ala. 1993) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991) ). Because it is an extraordinary remedy, the standard of review is whether there has been a clear abuse of discretion by the trial court. Ex parte State Dep't of Human Resources, 674 So.2d 1274 (Ala. Civ. App. 1995).'
" City of Birmingham Planning Comm'n v. Johnson Realty Co., 688 So.2d 871, 872 (Ala. Civ. App. 1997). ...
"... As this court stated in Mobile City Planning Commission v. Stanley, 775 So.2d 226 (Ala. Civ. App. 2000), this court-and the [circuit] court-are limited in our review of the decision of a planning commission.
" 'Judicial review of a city planning commission's action is limited. Noojin v. Mobile City Planning Comm'n, 480 So.2d 587 (Ala. Civ. App. 1985). When a planning commission exercises control over subdivision lands within a municipality it acts in an administrative capacity. Boulder Corp. v. Vann, 345 So.2d 272 (Ala. 1977).
" ' "There is no dispute that the proper standard of review in cases based on an administrative agency's decision is whether that decision was arbitrary or capricious or was not made in compliance with applicable law.
" ' " 'Our standard of review regarding administrative actions is very limited in scope. We review the circuit court's judgment without any presumption of correctness since that court was in no better position than this court to review the agency decision. The special competence of the agency lends great weight to its decision. That decision must be affirmed unless arbitrary, capricious, or not made in compliance with applicable law. Neither the circuit court nor this court may substitute its judgment for that of the administrative agency.' "
" ' Ex parte City of Fairhope, 739 So.2d 35, 38 (Ala. 1999), quoting State Dep't of Revenue v. Acker, 636 So.2d 470, 473 (Ala. Civ. App. 1994) (citations omitted). ...'
" Stanley, 775 So.2d at 228."

Chandler v. City of Vestavia Hills Planning & Zoning Comm'n, 959 So.2d 1124, 1128-29 (Ala. Civ. App. 2006).

"Once a planning commission has properly exercised its authority in drafting ordinances regulating subdivision development, it is bound by those ordinances." Smith v. City of Mobile, 374 So.2d 305, 307 (Ala. 1979). See also Boulder Corp. v. Vann, 345 So.2d 272, 275 (Ala. 1977) ; and Chandler v. City of Vestavia Hills Planning & Zoning Comm'n, 959 So.2d at 1127.

Section 3.12 of the subdivision regulations provides, in pertinent part:

"All decisions of the Subdivision Committee concerning proposed subdivisions must be based on factual evidence presented by the subdivider confirming the suitability of particular lands for proposed buildings, construction, access, type and intensity of development or other uses. No new lots shall be created which pose hazards to health, safety or the general welfare, or are not designed in character with existing surrounding subdivisions, or which are not developable or usable for some public purpose or private activities in accord with all applicable zoning provisions."

Section 11-52-32(d) provides, in pertinent part, that, "[i]n the case of an appeal, the [subdivision] committee shall cause a transcript of all papers and documents filed with the committee in connection with the matter involved in the appeal to be certified to the municipal planning commission to which the appeal is taken." Additionally, subsection H of Section 3.11 of the subdivision regulations provides, in pertinent part:

"[I]n appeal cases, [the planning commission's] review shall be limited to evaluation of the evidence submitted on the record, unless it determines by an affirmative vote of twelve (12) members that additional facts may have relevance to the decision, whereupon the case shall be tried ab initio, allowing presentation of new evidence."

In the present case, there is nothing in the record before this court to indicate that the planning commission voted to try the case ab initio. Therefore, we must determine if the planning commission had before it the record of the meeting held before the subdivision committee concerning this matter ("the subdivision committee meeting") and, if it did, whether that record contains the requisite evidence as set forth in Section 3.12 of the subdivision regulations.

As previously noted, the transcript of the subdivision committee's meeting indicates that it was transcribed from an audio recording on May 15, 2017, months after the planning commission had affirmed the decision of the subdivision committee. The planning commission has not argued to this court, or cited to a place in the record before it showing, that it had the benefit of reviewing the transcript of, or listening to the audio recording from, the subdivision committee's meeting; indeed, the planning commission refers to the transcript as "newly acquired evidence" and "newly discovered evidence" in its brief to this court. Planning Commission's brief at pp. 16-19.

Based on the foregoing, we conclude that because the planning commission did not consider the transcript of, or the audio recording from, the subdivision committee's meeting in determining whether to approve the application for the proposed subdivision, it did not review the record from the subdivision committee's meeting as required by Section 3.11 of the subdivision regulations. Moreover, the record before this court is devoid of any showing that the evidence required in Section 3.12 of the subdivision regulations was included in the record that the planning commission was tasked with reviewing pursuant to Section 3.11. Because the planning commission did not review the record from the subdivision committee's meeting and the planning commission did not have before it the evidence required by its own regulations, we conclude that the planning commission's action in approving the proposed subdivision was done in a procedural manner inconsistent with its own regulations. As we previously recognized: "Once a planning commission has properly exercised its authority in drafting ordinances regulating subdivision development, it is bound by those ordinances." Smith, 374 So.2d at 307. Based on the foregoing, we conclude that the circuit court did not err in issuing the writ of mandamus to the planning commission.

The planning commission also argues that the circuit court erred by denying its postjudgment motion and by striking the transcript of the subdivision committee's meeting. It argues that it should have been permitted to show the existence of factual support for the planning commission's decision and to counter alleged misstatements by the neighboring property owners as to what had occurred at that meeting. In support of its argument, the planning commission cites § 12-13-11(a)(1), (2), and (7), Ala. Code 1975, which provide:

"(a) On motion filed within 30 days from entry of judgment, a new trial may be granted for the following grounds:
"(1) Irregularity in the proceedings of the court, jury or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial.
"(2) Misconduct of the jury or prevailing party.
"....
"(7) Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial."

"The determination of whether to grant or deny a new trial is for the trial judge, and an order granting or denying a motion for new trial on the basis of newly discovered evidence will not be disturbed on appeal, unless it appears that the trial court abused its discretion." Talley v. Kellogg Co., 546 So.2d 385, 388 (Ala. 1989). In this case, the planning commission sought a continuance to procure the transcript of the subdivision committee's meeting. Although the motion for a continuance was granted, the planning commission still failed to submit that transcript to the circuit court before the court entered its judgment. Moreover, as discussed previously, the planning commission has not shown that it considered the transcript of the subdivision committee's meeting in determining whether to approve the application for the proposed subdivision. Based on the foregoing, we cannot conclude that the circuit court exceeded its discretion in declining to accept the transcript of the subdivision committee's meeting. Accordingly, we affirm the circuit court's order denying the planning commission's postjudgment motion and granting the neighboring property owners' motion to strike the transcript.

Appeal No. 2160907

On appeal, Altamont argues that the circuit court erred in denying its motion to intervene. It argues that, if it had been allowed to intervene, it would have submitted the transcript of the subdivision committee's meeting as well as reports of engineers. As noted previously, however, the transcript of the subdivision committee's meeting was not transcribed and made a part of the record before the planning commission on appeal, so the planning commission could not have based its decision on that transcript. Furthermore, Altamont does not argue that any of the reports from engineers were made a part of the record on appeal to the planning commission. We have already concluded that the planning commission's decision was not in compliance with its own regulations because it did not review the record from the subdivision committee's meeting and because the record before the planning commission did not include the evidence required by its own regulations. Because Altamont does not argue that any of the evidence it sought to submit was part of the record in the appeal to the planning commission, we conclude that any error in denying Altamont's motion to intervene was harmless. Rule 45, Ala. R. App. P. Therefore, we affirm the circuit court's order denying Altamont's motion to intervene.

2160898-AFFIRMED.

2160907-AFFIRMED.

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

      The "subdivision committee" is a committee that is composed of five members of the planning commission and whose duties include, among others, "hear[ing] and decid[ing] upon applications for subdivisions of land. See Section 2.2, Subdivision Regulations of the City of Birmingham (defining "subdivision committee" as "[a] committee composed of five (5) members of the [p]lanning [c]ommission authorized to hear and decide upon applications for subdivision of land, and to advise the chief legislative body of the City [of Birmingham] on vacation of public land and new right-of-way dedications, all such actions to be taken on behalf of the [p]lanning [c]ommission"); and § 11-52-32(d), Ala. Code 1975 ("The municipal planning commission of any Class 1 city may elect no fewer than three and no more than five persons who are members of the municipal planning commission to serve while members thereof and at the pleasure of the municipal planning commission as a committee to approve or disapprove in the name of the municipal planning commission any plat presented to the municipal planning commission." (footnote omitted) ).
      The Subdivision Regulations of the City of Birmingham are authorized pursuant to § 11-52-31, Ala. Code 1975. Additionally, we note that " 'Birmingham is a Class 1 municipality, as defined in § 11-40-12, Ala. Code 1975, because its population was more than 300,000 inhabitants as certified by the 1970 federal decennial census.' Biggs v. City of Birmingham, 91 So.3d 708, 711 n.2 (Ala. Civ. App. 2012)." Atlantis Entm't Grp., LLC v. City of Birmingham, 231 So.3d 332, 340 n.2 (Ala. Civ. App. 2017).

      Although the record before this court does not contain a written order approving the proposed subdivision, § 11-52-32(a), Ala. Code 1975, provides that "the municipal planning commission shall approve or disapprove a plat within 30 days after the submission thereof to it; otherwise, the plat shall be deemed to have been approved."

      Because Birmingham is a Class I municipality, see note 1, supra, this court may take judicial notice of its municipal regulations. See § 11-45-11, Ala. Code 1975.


author: BURKE, Judge.

text:
    Joseph Wayne MADDEN v. STATE of Alabama
    CR-16-0781
    Court of Criminal Appeals of Alabama.
    October 13, 2017
    Joseph Wayne Madden, pro se.
    Steve Marshall, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   BURKE, Judge.

Joseph Wayne Madden appeals the circuit court's summary denial of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged his 1983 convictions for three counts of first-degree receiving stolen property, a violation of § 13A-8-17, Ala. Code 1975, and his resulting concurrent sentences of 10 years' imprisonment; those sentences were suspended, and Madden was placed on five years' probation. Madden did not take a direct appeal from his convictions.

On or about March 17, 2017, Madden filed the instant petition, his sixth, in which he alleged that the circuit court lacked jurisdiction to render the judgments or to impose his sentences because (1) the crimes were committed in Mississippi and (2) his three convictions and concomitant sentences violated double-jeopardy principles because they all arose from the same offense.

On or about March 30, 2017, the State responded to Madden's petition. The State alleged that Madden's claims had been previously addressed in collateral proceedings and that his petition was due to be dismissed as successive under Rule 32.2(b), Ala. R. Crim. P. The State also argued that Madden's claim (1), as listed above, was meritless because Madden admitted at his guilty-plea proceedings that he was in possession of the vehicles in the State of Alabama, with the knowledge that the goods were stolen and that he did not have the intent to return the goods to the owner. The State also argued that Madden's claim (2), as listed above, was meritless because he was in possession of three stolen vehicles, taken from three victims.

On March 30, 2017, the circuit court summarily denied Madden's petition. The circuit court found that Madden's petition was due to be denied pursuant to Rule 32.2, Ala. R. Crim. P., because he raised the same claims that were contained in his first five Rule 32 petitions and that had already been adjudicated on the merits. The circuit court also ordered the Marion County Circuit Clerk "to neither accept, nor take any action on further post-conviction motions or petitions tendered by Joseph Wayne Madden unless and until" (1) Madden prepays the docketing fee at the time of filing, (2) Madden presents motions that have been filed by an attorney licensed to practice in the State of Alabama, and (3) Madden provides an affidavit executed by Madden and his attorney "certifying and subject to contempt for false swearing that the claim(s) being raised are novel cognizable jurisdiction claims and are not claims that [were] previously raised and adjudicated on the merits." (C. 112.)

On appeal, Madden reasserts the claims raised in his petition and argues that the circuit court abused its discretion by summarily denying his claims without holding an evidentiary hearing. Madden also claims that the circuit court abused its discretion by adopting the State's response. Lastly, Madden alleges that the circuit court abused its discretion by imposing sanctions against him in its order denying his petition, which, he claims, constitute a denial of access to the courts.

A circuit court may summarily dismiss a petitioner's Rule 32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition."

See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003) ; Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002) ; Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992). Because Madden's claims were precluded, or were without merit, summary disposition was appropriate.

To the extent that Madden alleges that the court lacked jurisdiction to accept his guilty-pleas because the offenses were committed in Mississippi, this claim is without merit. Madden argued in his petition and in his brief on appeal that, because the property was stolen in Mississippi and then brought back to Marion County, the offense was committed "wholly outside the State of Alabama." (Madden's brief, at 15.) Section 13A-8-16, Ala. Code 1975, provides that "[a] person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner." Madden concedes in his brief on appeal that, during his guilty-plea colloquy, he told the court that he brought the vehicles back from Mississippi to Marion County. Section 15-2-6, Ala. Code 1975, provides that "when an offense is committed partly in one county and partly in another, or the act or effects thereof constituting or requisite to the consummation of the offense occurs in two or more counties, venue is in either county." Therefore, because he "retained" the stolen property in Marion County, his claim is meritless.

Inasmuch as Madden reasserts his double-jeopardy claim, in which he argues that the court lacked jurisdiction to accept his guilty plea and to impose his sentences because he was found to be in possession of the stolen property at one location, this claim was also properly denied as successive under Rule 32.2(b), Ala. R. Crim. P. This claim has been raised and addressed by this Court on numerous occasions. This Court most recently stated in an unpublished memorandum affirming the dismissal of one of Madden's earlier petitions, Madden v. State, (No. CR-11-0801), 152 So.3d 460 (Ala. Crim. App. 2012) (table):

"Even if Madden's claim is, in fact, jurisdictional, a duplicative jurisdictional claim can be precluded as successive under Rule 32.2(b), Ala. R. Crim. P., if the claim was previously raised and adjudicated on its merits. Ex parte Trawick, 972 So.2d 782, 784 (2007).
"Madden argued in his fourth Rule 32 petition that 'the [circuit] court was without jurisdiction because his three convictions and sentences for receiving stolen property were based on a single possession'; Madden, therefore, concluded that his double-jeopardy rights were violated.
Madden v. State (CR-08-0255, August 14, 2009), 57 So.3d 204 (Ala. Crim. App. 2009) (table). In this Court's memorandum affirmance of the denial of Madden's fourth Rule 32 petition we held that
" 'Madden's double jeopardy rights were not violated by his three convictions and sentences for receiving stolen property. The record contains the three indictments which were the bases of his guilty-plea convictions. The record also contains the guilty plea proceedings. The indictments show that Madden was charged with receiving three different stolen vehicles, a 1978 Ford truck, a 1982 Freightliner truck, and a 1979 Ford-150 truck, each with a different named owner. (R. 88, 92, 98.) Madden testified as to the facts surrounding his acquisition of each of those vehicles during the guilty plea hearing. (R. 108-113.) These were three separate offenses. See Whitehead v. State, 16 Ala.App. 427, 78 So. 467 (1918) (where Whitehead had already been prosecuted for bringing a stolen vehicle into the state, being prosecuted for bringing another vehicle into the state does not violate double jeopardy, although they were both brought in pursuant to one conspiracy). Cf. Knight v. State, 675 So.2d 487, 497 (Ala. Crim. App. 1995) (where Knight stole different items from the same victim at the same time, he could not be convicted more than once).
" 'Because these offenses involved different victims and different property, Madden's double-jeopardy rights were not violated. Glass v. State, 14 So.3d 188 (Ala. Crim. App. 2008) (holding that convicting and sentencing Glass for multiple counts of reckless endangerment due to single car accident in which he struck a vehicle from behind did not violate double jeopardy as there were four victims). Gandy v. State, 42 Ala.App. 215, 217, 159 So.2d 71, 73 (Ala. App. 1963) (holding that offenses of robbery where Gandy "stuck up" a group of men on one occasion constituted "separate and distinct offenses as to each victim" and did not violate double jeopardy).'
"Thus, Madden's claim was previously addressed on its merits and decided adversely to him in his fourth Rule 32 petition. Accordingly, the circuit court did not abuse its discretion when it dismissed the same claim raised in his fifth Rule 32 petition as successive. See Rule 32.7(d), Ala. R. Crim. P."

Therefore, because this claim has repeatedly been addressed and decided adversely to him, and Madden has decided, yet again, to raise this claim in his sixth Rule 32 petition, the circuit court did not abuse its discretion when it dismissed the claim as successive.

Next, Madden contends that the trial court abused its discretion by adopting as its order the State's response because the State failed to attach affidavits or other records to support its allegations. As best we can determine, Madden's argument seems to be that, because the State merely asserted the preclusionary grounds found in Rule 32.2(b), Ala. R. Crim. P., without attaching affidavits and evidence to support the preclusions, the circuit court could not have denied his claim on those grounds. The Alabama Supreme Court has stated:

" Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and we have held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State. Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) ('''Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.'''). Although the Rules of Criminal Procedure initially place the burden on the State to plead any ground of preclusion, the ultimate burden is on the petitioner to disprove that a ground of preclusion applies. Rule 32.3, Ala. R.Crim. P."

Ex parte Ward, 46 So.3d 888, 897 (Ala. 2007). Madden relies on Ex parte Rice, 565 So.2d 606 (Ala. 1990), to support his contention. However, Madden's reliance is misplaced. Ex parte Rice does not stand for the proposition that the State is required to attach affidavits and additional evidence to support the grounds of preclusion it asserts. Instead, the Alabama Supreme Court in Ex parte Rice held that the State must plead the specific grounds of preclusion that it believes apply to the petitioner's case and that a general allegation that merely refers to the general rule, without indicating which ground of preclusion is alleged, does not satisfy the State's burden of pleading. Id. Therefore, Madden is not entitled to relief on this claim.

Lastly, Madden alleges that the sanctions imposed by the circuit court in its denial order denies him access to the courts. Specifically, Madden objects to the court's imposition of the following sanctions: 1) the court's instructions to the circuit court to not accept any further motions or petitions from Madden unless he prepays the docketing fee at the time of filing; 2) the court's instruction that any of Madden's future petitions or motions have to be filed by an attorney licensed to practice in the State of Alabama; and 3) the court's instruction requiring that the attorney and Madden certify that the claim(s) being raised are novel, cognizable jurisdiction claims and are not claims that were previously raised and adjudicated on the merits. Madden claims that he filed a motion to reconsider the denial of his Rule 32 petition, in which he raised the instant claim challenging the court's imposition of the sanctions and that the court returned the motion, thereby denying him his right to access to the courts under Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).

The State questions whether Madden's argument is properly preserved for appellate review and whether Madden currently has standing to assert a claim that his right to access to the courts under Bounds has been violated. First, the State is correct that there is nothing in the record showing that this claim was raised before the circuit court and that an appellant cannot raise an issue on appeal that was not raised in the original Rule 32 petition. See Morrison v. State, 551 So.2d 435 (Ala. Crim. App. 1989). The State also correctly notes that exhibits attached to appellate briefs are not considered part of the record and cannot be considered by the Court on appeal. See, e.g., Morrow v. State, 928 So.2d 315, 321, n.5 (Ala. Crim. App. 2004). However, due to the nature of Madden's claim, the claim would have had to have been raised in a postjudgment motion, which it appears that Madden may have attempted to do. Thus, if Madden's contention is correct that the circuit court did not allow him to file his motion to reconsider the denial of his petition in which he raised this claim, this appeal is the first opportunity that Madden has had in which to raise the instant claim.

Next, the State argues that Madden lacks standing to raise this claim because, it says, he has failed to prove that he suffered an "actual injury" as required by Lewis v. Casey, 518 U.S. 343, 349-50, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), because the motion to reconsider was not made a part of the record. However, for the reasons stated above, we cannot say definitively whether Madden suffered actual injury. The State also argues that Madden lacked standing to raise this argument because, under Christopher v. Harbury, 536 U.S. 403, 414-15, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002), an inmate claiming a denial of access to the courts must show that he or she has not only been shut out of the courts, but he or she must also show the existence of a nonfrivolous underlying claim. Although Madden's sixth petition contained only frivolous issues, the postjudgment motion that Madden claims was not accepted by the circuit court and that gives rise to the instant claim did contain a potentially meritorious issue-i.e.; that the sanctions imposed by the circuit court denied him access to the courts in violation of Bounds.

Assuming that Madden's claim is properly preserved and that he has standing to raise this issue, the circuit court ordered certain acceptable restrictions that may be placed on prisoners who bring frequent or repetitious claims; specifically that Madden would be required to prepay the docketing fee for future filings and that all future pleadings must be accompanied with an affidavit executed by Madden certifying and subject to contempt for false swearing that the claims being raised were novel cognizable jurisdictional claims that had not been previously raised or adjudicated on the merits. See Peoples v. State, 531 So.2d 323, 327 (Ala. Crim. App. 1988) (citing Procup v. Strickland, 792 F.2d 1069 1072-73 (11th Cir. 1986) ). However, as the State concedes in its brief on appeal, the circuit court's requirement that Madden must file any future petitions or motions only through an attorney and that the attorney must submit an affidavit stating that all claims were novel and nonfrivolous is not permissible under Procup. See Procup, 792 F.2d at 1071.

Based on the foregoing, the circuit court's denial of Madden's postconviction petition was proper. However, a remand is necessary for the circuit court to determine whether Madden attempted to timely file a motion to reconsider in which he challenged the sanctions imposed by the circuit court and whether the circuit court subsequently returned Madden's motion without allowing the motion to be filed. If the circuit court determines that Madden did timely attempt to file the motion to reconsider challenging the circuit court's restrictions on any future filings and that the motion was returned to Madden by the circuit court, the circuit court is hereby ordered to amend its denial order and to vacate the injunction requiring Madden to obtain an attorney to file his motions and to certify that his claims were novel and nonfrivolous. If, however, the circuit court determines that Madden did not attempt to timely file such a postjudgment motion, the circuit court shall indicate that in its return to this Court. This case is remanded to the circuit court with instructions to make the above-listed determinations and take any action necessary that is consistent with this opinion. Due return shall be made to this Court within 30 days from the date of this opinion.

AFFIRMED IN PART; AND REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Welch and Joiner, JJ., concur. Kellum, J., concurs in the result.

      We note that an unpublished memorandum has no precedential value and is not to be cited as argument in briefs, except to establish the "application of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar." See Rule 54(d), Ala. R. App. P.
      * Note from the reporter of decisions: On December 8, 2017, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On January 5, 2018, that court denied rehearing, without opinion. On February 16, 2018, the Supreme Court denied certiorari review, without opinion (1170325).


author: JOINER, Judge.

text:
    Gary Lynn WEEKS v. STATE of Alabama
    CR-16-0881
    Court of Criminal Appeals of Alabama.
    February 9, 2018
    Charlie Andrew Bottoms, Jr., Florence, for appellant.
    Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   JOINER, Judge.

Gary Lynn Weeks was convicted of attempted first-degree assault, see §§ 13A-4-2 and 13A-6-20, Ala. Code 1975, attempting to elude a law-enforcement officer, see § 13A-10-52, Ala. Code 1975, and reckless endangerment, see § 13A-6-24, Ala. Code 1975. Weeks was sentenced, as a habitual offender, to 22 years' imprisonment on the attempted-assault and attempting-to-elude convictions. He was also sentenced to 12 months' imprisonment on the reckless-endangerment conviction. The Lauderdale Circuit Court ordered that those sentences were to run concurrently with each other. Weeks was also ordered to pay court costs, attorney fees, and a $150 crime-victims-compensation assessment.

Facts and Procedural History

Weeks does not challenge the sufficiency of the State's evidence. Thus, only a brief recitation of the facts underlying his convictions is necessary. On February 17, 2016, Weeks was driving down Megan Drive in Lauderdale County in a Ford Explorer sport-utility vehicle when Alabama State Trooper Jason Hewitt decided to pull him over after noticing that there was no license plate on the vehicle. According to State Trooper Hewitt, Weeks did not stop his vehicle. As State Trooper Hewitt pursued Weeks's vehicle, several other state troopers became involved in the pursuit. At one point, state troopers attempted to "box in" Weeks's vehicle. As they did so, Weeks re-entered the roadway and struck State Trooper Joe McDonald's patrol car. Following a second attempt to "box in" Weeks's vehicle, Weeks, once again, struck State Trooper McDonald's patrol car with his own vehicle. Weeks then lost control of his vehicle and spun out. State troopers were eventually able to "box in" Weeks's vehicle and bring it to a complete stop. Following a short pursuit on foot, Weeks was placed under arrest.

On September 29, 2016, the Lauderdale County grand jury returned a four-count indictment against Weeks. On October 26, 2016, Weeks was duly arraigned and entered pleas of not guilty to all four charges.

On October 31, 2016, Weeks filed a motion for a mental evaluation to determine whether Weeks could assist in his own defense. At the hearing on the motion for a mental evaluation, the following exchange occurred:

"THE COURT: I had set this matter for a motion on [defense counsel's] mental eval[uation]. He'd filed it some time ago but I, you know, oftentimes it takes a while to get medical records. Have you been successful?
"[Defense counsel]: Yes, Your Honor. I do have some notes here from Riverbend mental health facility from several years ago involving Mr. Weeks's traumatic brain injury. If you will pay attention to Page 11 of 14 at the top. The medical records indicate a psychosis as well as a-it's kind of hard to read, Your Honor. Apparently it's a doctor or nurse writing that. And pay attention to poor impulse control, possible organic brain syndrome and several other indicators for a mental disease or defect. We do believe we've met our threshold about that.
"THE COURT: [Prosecutor], has the State had an opportunity to evaluate the records?
"[Prosecutor]: I'm familiar with the case and [Weeks] and as long as you feel like it meets the threshold, we have no objection.
"THE COURT: All right. I think it does. I'll get a mental evaluation. The motion is granted."

(Supp. R. 13-14 (emphasis added).)

On January 25, 2017, the circuit court entered an order stating:

"This cause comes before the Court on [Weeks's] Motion for Mental Evaluation, and after hearing the same this date, the Court finds that the threshold has been met and orders as follows:
"....
"[Weeks] shall undergo an examination by a Certified Forensic Examiner to conduct a clinical evaluation of [Weeks's] competency to stand trial and mental state at the time of the alleged offense.
"....
"Further criminal proceedings against [Weeks] are hereby stayed until such time as the Court receives a completed report from the Certified Forensic Examiner."

(C. 66.)

On February 21, 2017, the circuit court held a hearing at which Weeks, who was represented by advisory counsel, made an oral motion to withdraw his motion for a mental evaluation. The record shows that counsel advised against Weeks's withdrawal "based upon the evidence that I've seen." (Second Supp. R. 5.) The circuit court, however, granted the motion and permitted the proceedings against Weeks to go forward.

On March 6, 2017, Weeks's jury trial began. Weeks was found guilty of attempted first-degree assault, see §§ 13A-4-2 and 13A-6-20, Ala. Code 1975, of attempting to elude a law-enforcement officer, see § 13A-10-52, Ala. Code 1975, and of reckless endangerment, see § 13A-6-24, Ala. Code 1975. Weeks was then sentenced as indicated above. Thereafter, Weeks gave timely notice of appeal.

Discussion

Resolution of this appeal requires us to address only Weeks's argument that the circuit court erred in failing to order an evaluation of his competency to stand trial. Specifically, Weeks argues that the circuit court's determination that Weeks had met his "threshold" with sufficient evidence of incompetency entitled him to an evaluation that, he argues, could not be waived under the circumstances of this case. (Weeks's brief, pp. 13-17.) We agree.

On October 31, 2016, Weeks filed a motion for a mental evaluation to determine his competency to proceed to trial. (C. 53.) On January 25, 2017, a hearing was held on Weeks's motion. After receiving documentation of Weeks's prior mental health records and hearing oral argument on the issue, the circuit court granted the motion and found that the minimum threshold required for ordering a mental evaluation had been met. (Supp. R. 14.) That same day the circuit court issued a written order in which it stated that Weeks was to

"undergo an examination by a Certified Forensic Examiner to conduct a clinical evaluation of [Weeks's] competency to stand trial and mental state at the time of the alleged offense."

(C. 66.) In that order, the circuit court stayed any further criminal proceedings against Weeks "until such time as the Court receives a completed report from the Certified Forensic Examiner." Id.

On February 21, 2017, the circuit court held a hearing at which Weeks, who was represented by advisory counsel, made an oral motion to withdraw his motion for a mental evaluation. (Second Supp. R. 2.) The record shows that counsel advised against Weeks's withdrawal of the motion "based upon the evidence that I've seen." (Second Supp. R. 5.) The following exchange occurred:

"THE COURT: I got you. Couple of things we need to address. I know this is set for trial week after next and that we have some-I know from discussions that there is a pending motion for a mental evaluation but I understand it's your desire, Mr. Weeks, to withdraw that motion; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: Have you had plenty of time to discuss that with your attorney?
"THE DEFENDANT: We talked about it one or two times.
"THE COURT: Has he advised against you withdrawing?
"THE DEFENDANT: Yes, sir, he has.
"THE COURT: So you're traveling now against your attorney's advice with regards to a mental evaluation?
"THE DEFENDANT: Well, your Honor, the thing about it is-
"THE COURT: So you would-you would be going against his advice; is that what you're telling me?
"THE DEFENDANT: Yes, sir, but what I'm trying to say, your Honor, is I been down there in jail a year. All right. I come in chronic care for my leg. Anything-I'm a chronic care patient. Right now when I lay down from my knees down is like putting them in the freezer. My circulation is being cut off and I'd rather just go out and just shoot me, you know, to get it over with, you know, if you hate me that bad, you know, so I've got to get to a doctor and I can't get to a doctor down there because I got-I been in there a year. I'm a diabetic and I ain't had no medicine so I done like you did, just take it in court so I've got them in federal court now trying to get some medical attention and I can't get none, and so I can't get nobody to hear what I'm saying and so I've got to do something to get some medical treatment.
"THE COURT: I understand. Your oral motion to withdraw your motion for a mental evaluation is granted. I will allow you to withdraw that motion and so that means that the case will remain set for trial for that March term."

(Second Supp. R. 2-4.)

" 'A trial of an accused who is incompetent violates due process.' " Frazier v. State, 758 So.2d 577, 585 (Ala. Crim. App. 1999) (quoting Wagner v. State, 489 So.2d 623, 628 (Ala. Crim. App. 1985) ). This Court has provided the following description of the trial court's role in evaluating the competency of an accused to stand trial:

"The United States Supreme Court in Pate v. Robinson [, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966),] held that a trial court must conduct a competency hearing when it has a 'reasonable doubt' concerning the defendant's competency to stand trial. That Pate holding is incorporated into § 15-16-22, Ala. Code 1975. That section reads, in pertinent part:
" '(a) Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable ground to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in Section 22-52-30, or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility; it shall be the duty of the presiding judge to forthwith order that such defendant be committed to the Department of Mental Health and Mental Retardation for examination by one or more mental health professionals appointed by the Commissioner of the Department of Mental Health and Mental Retardation.'
"(Emphasis added.)
" Rule 11.1, Ala. R. Crim. P., defines 'mentally incompetent' as 'lack[ing] sufficient present ability to assist in his or her defense by consulting with counsel with a reasonable degree of rational understanding of the facts and the legal proceedings against the defendant.'
" Rule 11.6, Ala. R. Crim. P., provides:
" 'a) Preliminary Review. After the examinations have been completed and the reports have been submitted to the circuit court, the judge shall review the reports of the psychologists or psychiatrists and, if reasonable grounds exist to doubt the defendant's mental competency, the judge shall set a hearing not more than forty-two (42) days after the date the judge received the report or, where the judge has received more than one report, not more than forty-two (42) days after the date the judge received the last report, to determine if the defendant is incompetent to stand trial, as the term "incompetent" is defined in Rule 11.1. At this hearing all parties shall be prepared to address the issue of competency.'
"(Emphasis added.)
"The trial court has been described as the initial 'screening agent' for mental-health issues:
" '[Section 15-16-21, Ala. Code 1975,] places the initial burden on the trial court to determine whether there are "reasonable grounds" to doubt the accused's sanity. "The trial court is, thus, the 'screening agent' for mental examination requests." Reese v. State, 549 So.2d 148, 150 (Ala. Cr. App. 1989). " 'It is left to the discretion of the trial court as to whether there is a reasonable or bona fide doubt as to sanity, and, thus, whether a further examination is required.' " 549 So.2d at 150. The trial court makes a preliminary determination "without the aid of a jury as to whether reasonable grounds existed to doubt the defendant's competency." Rule 11.3, A.R. Crim. P., Committee Comments.'
" Daniels v. State, 621 So.2d 335, 337 (Ala. Crim. App. 1992)."

Luong v. State, 199 So.3d 173, 194-95 (Ala. Crim. App. 2015).

In the present case, the circuit court initially granted Weeks's motion for a mental evaluation to determine his competency to stand trial. In rendering its decision, the circuit court specifically stated that there was sufficient evidence to warrant such an evaluation. The circuit court later rescinded that order, however, not because it had changed its mind on the need for an evaluation but because Weeks purported to waive the evaluation.

In Roy v. State, 680 So.2d 936 (Ala. Crim. App. 1996), this Court, addressing a similar situation, stated:

"In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed. 2d 815 (1966), the United States Supreme Court held that 'it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.' 'Whether the defendant believed he was competent to stand trial is irrelevant for, if a defendant is incompetent to stand trial, his belief that he is able to do so is without import.' Bundy v. Dugger, 816 F.2d 564, 566, n. 2 (11th Cir. 1987).
"....
"Numerous courts have addressed this issue and have concluded that an incompetent cannot waive his right to a competency hearing. See also People v. Lucas, 47 Mich. App. 385, 209 N.W.2d 436 (1973) (both defendant and his attorney are prohibited from waiving the right to have the court determine defendant's capacity to stand trial); State v. Bauer, 310 Minn. 103, 245 N.W.2d 848 (1976) (trial court has continuing duty during trial to institute procedures to evaluate defendant's competency if a doubt arises as to competency.); In re Davis, 8 Cal. 3d 798, 505 P.2d 1018, 106 Cal.Rptr. 178 (1973) ('this court has held that when a "doubt" arises in the mind of the trial judge regarding defendant's present sanity or competence to stand trial, it becomes his duty to certify the defendant for a sanity hearing; the matter is jurisdictional and cannot be waived by defendant or his counsel'); Miller v. State, 498 S.W.2d 79 (Mo. App. 1973) (trial counsel held to be ineffective because he purported to waive a competency determination and allow the defendant to plead guilty); Demos v. Johnson, 835 F.2d 840 (11th Cir. 1988), cert. denied, 486 U.S. 1023, 108 S.Ct. 1998, 100 L.Ed. 2d 229 (Ala. 1988) (despite defendant's statement that he was capable of assisting in his defense, the failure of the trial court 'to grant a psychiatric examination or to make further inquiry into the accused's competence constituted a Pate violation and denied him a fair trial' under federal and Alabama law); People v. Lowe, 109 A.D.2d 300, 491 N.Y.S.2d 529 (1985) (incompetent defendant cannot waive safeguards enacted to ensure that an incompetent person cannot be convicted); People v. Johnson, 15 Ill. App. 3d 680, 304 N.E.2d 688 (1973) (neither defendant nor trial counsel could waive defendant's right to jury trial in restoration hearing to determine the defendant's competency); Adams v. Wainwright, 764 F.2d 1356 (11th Cir.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed. 2d 805 (1986) ; (right to a competency hearing cannot [be] waived) )."

Roy, 680 So.2d at 938-39.

In Roy, this Court noted that "[t]he trial court was obviously initially concerned about the appellant's sanity and competency because it ordered the mental evaluation after it was first requested, and the order stated that there was sufficient evidence that such an evaluation was necessary." 680 So.2d at 941. Under the circumstances in Roy, this Court held:

"The trial court in its initial order specifically stated that there was sufficient evidence to warrant an evaluation and nothing in the record indicates that this statement is incorrect. Further, the court did not rescind the order of the evaluation because it changed its mind on the sufficiency of the evidence concerning the appellant's competency and sanity; it rescinded the order because the appellant objected to the evaluation. As we have stated in this opinion, to do so constituted reversible error."

680 So.2d at 941.

As demonstrated by the caselaw quoted above, a defendant's waiver, alone, is insufficient to waive his right to a competency evaluation when the circuit court has information before it indicating that the defendant's competency to stand trial is in question. Accordingly, under these circumstances, the circuit court's failure to order such an evaluation was reversible error, and Weeks was denied due process and the right to a fair trial.

Conclusion

The judgment of the circuit court is due to be reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      An attempting-to-elude offense is ordinarily classified as a Class A misdemeanor unless the "flight or attempt to elude causes an actual death or physical injury to innocent bystanders or third parties, in which case the violation shall be a Class C felony." § 13A-10-52, Ala. Code 1975. According to the clerk's record in this case, the circuit court treated the attempting-to-elude charge as a Class C felony. (C. 74-75, 77-78.) Although we are concerned that the record does not indicate whether an injury to a bystander or third party occurred, because we are reversing the convictions and remanding this case, a review of this issue is not necessary at this time.

      In that indictment, Weeks was charged with first-degree attempted assault, see §§ 13A-6-20 and 13A-4-2, Ala. Code 1975; unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975; fleeing or attempting to elude a law-enforcement officer, see § 13A-10-52, Ala. Code 1975; and reckless endangerment, see § 13A-6-24, Ala. Code 1975. The State nol prossed the unlawful possession of a controlled substance charge and Weeks proceeded to trial on the three remaining charges.

      Before his trial, Weeks made an oral motion asking that the circuit court relieve his defense counsel so that he could represent himself at trial. (C. 76.) Although the circuit court granted this motion, it still ordered Weeks's defense counsel to serve as "advisory counsel" during the course of Weeks's trial. Id.

      At the hearing, Weeks again moved for his counsel to withdraw. The circuit court, however, denied the motion, and required that counsel remain as "advisory" counsel. (Second Supp. R. 4.)

      The State nol prossed the unlawful-possession-of-a-controlled-substance charge and proceeded to trial on the three remaining charges.


text:
    LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioner(s) v. Rick SCOTT, Governor, et al., Respondent(s)
    CASE NO.: SC18-1573
    Supreme Court of Florida.
    NOVEMBER 16, 2018
    On October 15, 2018, we issued an order holding that, barring unforeseen circumstances and assuming the Justices at issue finish their terms, the vacancies created by the mandatory retirements of Justice Pariente, Justice Lewis, and Justice Quince would occur outside Governor Scott's term in office. Therefore, we explained, Governor Scott lacked the authority both to make appointments to fill those vacancies, and also to direct the JNC to submit its nominations by November 10, 2018.
    We now further hold that the phrase "within thirty days from the occurrence of a vacancy" in article V, section 11(c) of the Florida Constitution requires the JNC to make its nominations no later than thirty days after the occurrence of a vacancy, and does not prohibit the JNC from acting before a vacancy occurs.
    Petitioners have requested that the JNC reopen its application period for the vacancies at issue in this case. We recognize that there is no impediment to the JNC reopening its application period.
    Accordingly, except to the extent our October 15, 2018, order provides otherwise, the Emergency Petition for Writ of Quo Warranto is hereby denied, and the Emergency Supplemental Petition for Writ of Quo Warranto and for Constitutional Writ is likewise hereby denied.
    CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.
    LAWSON, J., concurs and concurs specially with an opinion, in which CANADY, C.J., and LABARGA, J., concur.
   LEWIS, J., dissents with an opinion, in which PARIENTE, J., concurs.

QUINCE, J., dissents with an opinion, in which PARIENTE and LEWIS, JJ., concur.

I fully concur in the order denying any additional relief in this case and write separately to respectfully address Justice Lewis's dissenting contention that "[t]he majority today has reached an unfounded result that ignores the plain and explicit language of the Florida Constitution that the voters have established as our sacred governing document."

Two provisions of the Florida Constitution are at issue. The first, article V, section 11(a), deals with the Governor's appointment authority and the timing of those appointments. In relevant part, that section states: "Whenever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by" appointment. Art. V, § 11(a), Fla. Const. (emphasis added). This provision served as the basis for our unanimous October 15, 2018, declaration in this case that barring unforeseen circumstances, the vacancies created by the mandatory retirements of Justices Pariente, Lewis, and Quince will occur outside of Governor Scott's term in office-a proposition consistently agreed to by Governor Scott in filings and argument before this Court.

The second provision, article V, section 11(c), deals with a judicial nominating commission's nomination authority and the timing of its nominations. That provision reads in relevant part:

(c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days.

Art. V, § 11(c), Fla. Const. (emphasis added).

Since their inception, Florida's judicial nominating commissions have read this language as creating a deadline by which they must make nominations-and thereby allowing them to make their nominations prior to the date of a vacancy. That is the most reasonable reading of the language and is consistent with this Court's precedent analyzing similar language. See Barco v. Sch. Bd. of Pinellas Cty. , 975 So.2d 1116 (Fla. 2008). In Barco , this Court unanimously held the phrase "within 30 days after" to mean "not later than" 30 days after. Id. at 1123-24. Applying the unanimous Barco reasoning, article V, section 11(c), requires that a judicial nominating commission make its nominations no later than 30 days after the vacancies occur-which authorizes nominations prior to the vacancies. The fact that this is how Florida's JNCs have consistently interpreted the people's constitution also carries legal significance because a "constitutional ... construction traditionally given to a provision [of the constitution] by those officers affected thereby is presumably correct" and should not be rejected unless "manifestly erroneous." Fla. Soc'y of Ophthalmology v. Fla. Optometric Ass'n , 489 So.2d 1118, 1120-21 (Fla. 1986) (citation omitted).

There are no other constitutional provisions alleged by Petitioners or cited in the dissent as relevant to the issue of whether the Supreme Court Judicial Nominating Commission is empowered to act prior to the occurrence of an actual vacancy. Indeed, even Petitioners have appropriately acknowledged that "nothing in the Florida Constitution prevents a JNC from starting its process before the vacancy." Emergency Petition for Writ of Quo Warranto at 20. I conclude based upon a reasoned analysis of the relevant constitutional language, and our relevant precedent, that the Supreme Court JNC has not acted outside its authority by initiating its process to make nominations to fill the certain-to-occur and impending vacancies of my valued colleagues.

CANADY, C.J., and LABARGA, J., concur.

The majority today has reached an unfounded result that ignores the plain and explicit language of the Florida Constitution that the voters have established as our sacred governing document. Instead of faithfully interpreting the language set forth in our Constitution, the majority presents flawed reasoning to support its desired result. Simply put, the Judicial Nominating Commission (JNC) has no power to act without the occurrence of an actual vacancy, according to the plain language of the Florida Constitution and the JNC's own Rules of Procedure. I will not sit silently while the majority muddles-or disregards-our Constitution and related rules. Accordingly, I would dissent from the majority's order.

The process for filling a vacancy in judicial office is specifically governed by article V, section 11 of the Florida Constitution. In relevant part, section 11(a) provides in full:

(a) Whenever a vacancy occurs in a judicial office to which election for retention applies, the governor shall fill the vacancy by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next general election occurring at least one year after the date of appointment, one of not fewer than three persons nor more than six persons nominated by the appropriate judicial nominating commission.

Art. V, § 11(a), Fla. Const. (emphasis added). Further, the relationship of a vacancy and nomination is a constitutionally directed process governed by section 11(c):

(c) The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

Art. V, § 11(c), Fla. Const. (emphasis added). Governor Bush sought this Court's advisory opinion in Advisory Opinion to the Governor re Judicial Vacancy Due To Mandatory Retirement (Mandatory Retirement ), 940 So.2d 1090 (Fla. 2006), and sought to make a prospective appointment. Id. at 1091. However, this Court unanimously agreed that the vacancy occurred upon the expiration of the term. Id.

Further, in recognizing that JNCs cannot begin their work until a vacancy occurs, this Court's full quote in In re Advisory Opinion to the Governor (Judicial Vacancies ), 600 So.2d 460, 462 (Fla. 1992), suggested that resignations be submitted in advance to avoid prolonged vacancies:

Vacancies in office are to be avoided whenever possible. We are confident that the framers of article V intended that the nominating and appointment process would be conducted in such a way as to avoid or at least minimize the time that vacancies exist. Judges are encouraged to and do submit their resignations, to be effective in the future, at a time that permits the process to proceed in an orderly manner and keep the position filled.

Id. (emphasis added).

Although made in the context of a vacancy caused by resignation with a future effective date, Judicial Vacancies then went on to confirm that the JNC process begins after a vacancy occurs:

When a letter of resignation to be effective at a later date is received and accepted by you, a vacancy in that office occurs and actuates the process to fill it. The duties of the appropriate nominating commission start and its list should be submitted within thirty days of your acceptance of the resignation unless extended an additional thirty days. The appointment shall be made within sixty days after receipt of the nominations.

Id. (emphasis added); id. at 463 ("A nominating commission's job begins when you receive and accept a letter of resignation."); cf. In re Advisory Opinion to Governor , 276 So.2d 25, 29-30 (Fla. 1973) ("Of course, resignations under Fla. Stat. s 99.012, F.S.A. (Resign to Run Law) or under similar circumstances do not create a vacancy which activates the duties of the commissions or empower the Governor to make direct appointments ." (emphasis added) ).

Further, this Court's decision in Pleus v. Crist , 14 So.3d 941 (Fla. 2009), read the plain language of the constitution to govern the time that the JNC can function:

Article V, section 11(c), governs the time periods applicable to judicial nominating commissions in nominating judicial applicants to fill vacancies and to the governor in making judicial appointments. That provision of the constitution expressly requires the following: "The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor."

Id. at 943 (emphasis added) (quoting art. V, § 11(c), Fla. Const.).

Notably, even the Rules of Procedure for the Supreme Court JNC buttress the foundational principle that the JNC cannot begin receiving applications until after a vacancy occurs:

Whenever a vacancy occurs on the Supreme Court ... the Supreme Court Judicial Nominating Commission (the "Commission") shall receive and review applications submitted by those applicants who timely request consideration.

(Emphasis added.) The establishment of these Rules of Procedure is constitutionally required for each JNC in Florida. See art. V, § 11(d), Fla. Const. ("Uniform rules of procedure shall be established by the judicial nominating commissions at each level of the court system."). Further, "JNCs are required to operate in accordance with the Uniform Rules of Procedure applicable to each level of JNC." Judicial and Judicial Nominating Commission Information, http://www.flgov.com/judicial-and-judicial-nominating-commission-information/ (last visited Oct. 31, 2018).

The same section of the JNC's rules also provides that the JNC must give notice of the vacancy :

The Commission shall provide notice of the vacancy and the deadline for applications to The Florida Bar, county and local bar associations (including minority and women's bar associations), and at least one newspaper of general circulation in the relevant jurisdiction.

Providing notice of a vacancy, however, necessarily implies that the vacancy must actually exist before notice is given. Thus, the language set forth in the Rules of Procedure support the contention that the JNC "shall receive ... applications" only "[w]henever a vacancy occurs."

Likewise, past governors have also interpreted the JNC process in the same manner. See, e.g. , Mandatory Retirement , 940 So.2d at 1091 (Governor Bush's letter noted, "Although I understand that a physical vacancy occurs upon the termination of the term, a question has arisen as to when a constitutional vacancy occurs, effectuating the process to fill it."); Advisory Op. to Gov. re Appointment or Election of Judges , 983 So.2d 526, 527 (Fla. 2008) (Governor Crist's letter noted that, in accord with this Court's 2002 advisory opinion quoted above, his general counsel notified a JNC of a vacancy after a vacancy occurred due to failure of any candidates to qualify for election, and that the JNC advertised the vacancy and application deadline the next day).

Similarly, even Governor Scott's current official state website indicates that he notifies the JNC of a vacancy after the vacancy occurs, rather than before. See Judicial and Judicial Nominating Commission Information, http://www.flgov.com/judicial-and-judicial-nominating-commission-information/ (last visited Oct. 31, 2018) ("Upon notification of a vacancy , the Governor requests the Chair of the JNC to convene the JNC for the purpose of selecting and submitting names of qualified individuals to the Governor for appointment to the bench.... The JNC has no more than sixty days from the time it is requested to convene to nominate no fewer than three and no more than six applicants to the Governor. The Governor has sixty days to appoint a judge from among the nominees." (emphasis added) ).

Therefore, based on the Constitution, the case law from our Court, and the JNC's own Rules of Procedure, it is, in my view, absolutely clear that the Supreme Court JNC cannot begin accepting applications under the nomination process until a vacancy has occurred and certainly cannot terminate that process before a vacancy has even occurred. The JNC is constitutionally powerless to act in the abstract. It can only come to life and operate after the governor validly submits notice that a vacancy exists, and the governor can only do so once he or she has the legitimate power and authority to appoint (i.e., when the vacancy occurs). The contrary result reached by the majority today vests in the JNC powers independent of the governor to act and select nominees, even years before any actual vacancy occurs. Under the majority's misdirected result, the JNC could have independently begun and concluded the nomination process six years ago, because it was common knowledge at that time that the mandatory retirement age set forth in the Constitution would become operative six years in the future. However, allowing the JNC to begin to operate before any vacancy occurs runs afoul of the limited scope that JNCs were granted under our Florida Constitution. In my view, the unlimited independent power created by the majority today is a more than puzzling result that has absolutely no constitutional or legal justification.

Instead, the reasoning of the majority simply pulls a portion of one sentence which has nothing whatsoever to do with a JNC's authority as to when it may begin the process and only describes when the nominations must be completed to reach its misdirected result. That defective reasoning produces a misdirection of Florida's constitutional process for the operation of the JNC. The portion of the sentence utilized by the majority does not support the result here that JNCs have the unbridled independent authority to conduct the nomination process totally divorced from when a judicial vacancy actually occurs and without any direction by the Executive having the valid power to make the ultimate appointment. See art. V, § 11(c), Fla. Const. ("The nominations shall be made within thirty days from the occurrence of a vacancy ...." (emphasis added) ). The majority's order is the expression of an incorrect result, not a proper intellectual and legal analysis of the very important issue with which we are confronted.

Adding insult to injury, the concurring and concurring specially opinion warps this Court's prior decision in Barco v. School Board of Pinellas County , 975 So.2d 1116 (Fla. 2008), which was a case concerning the timing of motions for attorneys' fees under Florida Rule of Civil Procedure Rule 1.525 in an existing case, as lending support to the argument that the JNC has the authority to begin the nomination process before a vacancy occurs. This contention is plainly disingenuous and totally unsupported. Barco 's holding determined the final and ending deadline within which a party could file a motion for attorneys' fees in an existing, pending case. It did not, however, determine the beginning date on which a party could file a motion without a case existing. Furthermore, our holding in Barco was made in the context of a motion filed in an existing case. The concurring and concurring specially opinion's attempt to read a beginning date before a case was in existence within Barco 's holding is inappropriate. Instead of attempting to distinguish or refute the numerous, directly relevant cases mentioned above that inform my analysis on the onset of the JNC nomination process, the concurrence and concurrence specially simply tries to play hide-the-ball and erroneously attempts to portray applicability of Barco where none exists.

Additionally, and tellingly, the concurring and concurring specially opinion provides absolutely no support to justify the premise that "[s]ince their inception, Florida's judicial nominating commissions have read this language as creating a deadline by which they must make nominations-and thereby allowing them to make their nominations prior to the date of a vacancy." Concurring and Concurring Specially Op. at 901. Nevertheless, what prior JNCs have or have not done without challenge under different circumstances not present in the instant litigation is in no way controlling authority.

Finally, the concurring and concurring specially opinion's view disregards the principles of constitutional construction, which guide our interpretation of constitutional provisions. This Court has clearly and repeatedly explained these rules of construction:

We begin by observing that the polestar of constitutional construction is voter intent. City of St. Petersburg v. Briley, Wild & Assocs., Inc. , 239 So.2d 817, 822 (Fla. 1970).... Further, when interpreting a constitutional provision we must give effect to every provision and every part thereof. Dep't of Envtl. Prot. v. Millender , 666 So.2d 882, 886 (Fla. 1996) ("[E]ach subsection, sentence, and clause must be read in light of the others to form a congruous whole so as not to render any language superfluous."). "Ambiguity is an absolute prerequisite to judicial construction" and "when constitutional language is precise, its exact letter must be enforced ...." Fla. League of Cities v. Smith , 607 So.2d 397, 400 (Fla. 1992). These foundational principles guide our analysis.
In interpreting a constitutional amendment, we begin with the amendment's plain language. Ervin v. Collins , 85 So.2d 852, 855 (Fla. 1956) ("We are called on to construe the terms of the Constitution, an instrument from the people, and we are to effectuate their purpose from the words employed in the document."); see also Fla. Soc'y of Ophthalmology v. Fla. Optometric Ass'n , 489 So.2d 1118, 1119 (Fla. 1986) ("Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision's explicit language.").

Benjamin v. Tandem Healthcare, Inc. , 998 So.2d 566, 570 (Fla. 2008) (footnote omitted).

These rules of constitutional construction under which this Court operates require that we read "each subsection, sentence, and clause ... in light of the others to form a congruous whole so as not to render any language superfluous." Millender , 666 So.2d at 886. The concurring and concurring specially opinion attempts to use the end date of the nomination process (i.e., "within thirty days from the occurrence of a vacancy") to inform the onset of the JNC's constitutional authority to begin this process. This incorrect interpretation fails to read article V, section 11 in its entirety in order to form a congruous whole. Our Constitution does not contain a separate provision that indicates when a JNC may begin its nomination process. It does, however, explicitly delineate when the governor gains the appointment power necessary to convene the JNC in order to begin the nomination process-"Whenever a vacancy occurs." Art. V, § 11(a). Reading the language of section 11 (a) alongside that of section 11 (c), and giving each its full effect, it becomes clear that the beginning point at which the JNC can start the nomination process is "[w]henever a vacancy occurs ." Id. (emphasis added). The majority's, and the concurring and concurring specially opinion's, desperate attempt at reading contrary meaning into this provision is a frightening attempt to seize upon a single phrase of a constitutional provision in order to pervert the subject and actual words to reach a desired result. Our democracy deserves better.

Abiding by the clear will of the people of this State, as set forth in our Florida Constitution, in an impartial manner and without regard for predetermined results is a vital component of our democracy and our judicial system. The people of Florida have entrusted in this Court the responsibility to apply the Constitution faithfully and independently of our own personal opinions and ideologies of what result is "right." Today, instead of adhering to these foundational principles, the majority charts its own path and completely ignores the will of the people as expressed in actual words in our documents to reach its result. The result reached by the majority is one that muddles and contorts the language of the Constitution, process, and applicable rules, which is, in my view, an unacceptable approach and a misinterpretation.

For these reasons, I dissent.

PARIENTE, J., concurs.

I dissent because while the majority's solution may be a pragmatic one, it is not a constitutional one. In this Court's unanimous order dated October 15, 2018, the Court granted the petition for writ of quo warranto against Governor Rick Scott, holding that it was the incoming governor and not Governor Scott who had the authority to appoint the retiring justices' successors. We explained:

The petition for writ of quo warranto against Governor Rick Scott is hereby granted. The governor who is elected in the November 2018 general election has the sole authority to fill the vacancies that will be created by the mandatory retirement of Justices Barbara J. Pariente, R. Fred Lewis, and Peggy A. Quince, provided the justices do not leave prior to the expiration of their terms at midnight between January 7 and January 8, 2019, and provided that the governor takes office immediately upon the beginning of his term. Governor Scott exceeded his authority by directing the Supreme Court Judicial Nominating Commission ("the JNC") to submit its nominations to fill these vacancies by November 10, 2018. The sixty-day period after nominations have been certified within which the governor is required to make appointments, as set forth in article V, section 11(c), of the Florida Constitution begins to run only when the governor with the authority to appoint has taken office. As the JNC is an independent body, it is not bound by Governor Scott's deadlines.

League of Women Voters v. Scott , No. SC18-1573, order at 1 (Fla. order filed Oct. 15, 2018).

Today we are answering the question left open in the October 15 order, concerning what actions the JNC can engage in that are consistent with the Florida Constitution. We are further interpreting article V, section 11(c), of the Florida Constitution, which provides:

The nominations shall be made within thirty days from the occurrence of a vacancy unless the period is extended by the governor for a time not to exceed thirty days. The governor shall make the appointment within sixty days after the nominations have been certified to the governor.

Art. V, § 11(c), Fla. Const.

The first and second sentences of this constitutional provision must be read together. This Court has already held that the sixty days referenced in the second sentence begins when the new governor takes office. See Scott , No. SC18-1573, order at 1.

The question then is when the JNC can make and certify its nominations to the governor. Although the majority interprets "within thirty days from the occurrence of a vacancy," art. V, § 11(c), Fla. Const., to mean "no later than thirty days after the occurrence of a vacancy," it does so without a constitutional basis or considering both sentences together. While that might be a practical solution, the Constitution must prevail. Further, under the majority's interpretation, there could be a gap between when the JNC makes its nominations, i.e., up to thirty days before the governor takes office, and the time for the governor to act, i.e., sixty days after the new governor takes office.

In my view, the JNC cannot certify its nominations before the new governor takes office, and the sixty-day period can run only from when the "nominations have been certified to the governor." Art. V, § 11(c), Fla. Const. Reading the first and second sentences together, "within," as used in article V, section 11(c), must mean after the vacancies-not before and after. See Judicial Nominating Comm'n, Ninth Cir. v. Graham , 424 So.2d 10, 11 (Fla. 1982) ("A nominating commission is a constitutionally established body, mandated by the constitution to submit the nominations of three persons to the governor within thirty days following a judicial vacancy." (emphasis supplied) (citing art. V, § 11, Fla. Const.) ). Therefore, the JNC

may not make or certify its nominations prior to the occurrence of the vacancies at issue in this case.

Even if the word "within," as used in article V, section 11(c), allows the JNC to make or certify its nominations before the vacancies, the earliest it could do so would be December 8, 2018-thirty days before the vacancies at issue in this case occur, assuming the justices complete their terms. The majority's interpretation of "within" ignores that we have already determined that the incoming governor will have the authority to make the appointments at issue in this case, not Governor Scott. If Governor Scott is unable to make the appointments, he is similarly unable to utilize the thirty-day extension provided for in article V, section 11(c). Thus, if "within" is interpreted to go backward and forward, the earliest the JNC can make or certify the nominations is December 8, 2018. Then, if the new governor so chooses, he may utilize the thirty-day extension once he assumes office.

Lastly, because the October 8, 2018, application deadline was set by the JNC in response to Governor Scott's unauthorized action, I would require the JNC to reopen the application process at least through December 8, 2018, to allow additional candidates to apply, as requested by Petitioners and amici.

PARIENTE and LEWIS, JJ., concur.

      Specifically, in Barco , we noted that, "despite the requirement that motions for attorneys' fees be filed within a reasonable time after the entry of judgment, a party seeking attorneys' fees also had to plead entitlement to fees in the complaint or answer." 975 So.2d at 1119. Thus, the right to file this motion arises only after a party has proven entitlement to those attorneys' fees within an existing case that is being litigated.

      "[I]n construing multiple constitutional provisions addressing a similar subject, the provisions 'must be read in pari materia to ensure a consistent and logical meaning that gives effect to each provision.' " In re Senate Joint Resolution of Legislative Apportionment 1176 , 83 So.3d 597, 659 (Fla. 2012) (quoting Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n , 838 So.2d 492, 501 (Fla. 2003) ).

      Under the majority's interpretation, this gap could be as long as sixty days if the thirty-day extension in article V, section 11(c) is utilized, assuming that there is a governor who is authorized to grant the extension.

      Amici include the Florida Association for Women Lawyers-joined by the Wilkie D. Ferguson, Jr. Bar Association, the Caribbean Bar Association, the Gwen S. Cherry Black Women Lawyers Association, the Daniel Webster Perkins Bar Association, Inc., the Haitian Lawyers Association, the Virgil Hawkins Florida Chapter National Bar Association, and the Fred G. Minnis, Sr. Bar Association, the George Edgecomb Bar Association-the TJ Reddick Bar Association, and the South Florida Chapter of the National Black Prosecutors Association.