author: PER CURIAM. YATES, Presiding Judge,

text:
    Levert HEDGEMON, Sr. v. UNITED PARCEL SERVICE, INC.
    2000589.
    Court of Civil Appeals of Alabama.
    April 19, 2002.

      Robert W. Lee, Jr., and Nancy H. Ippol-ito of Lee & Thornton, P.C., Birmingham, for appellant.
    John F. Whitaker and Chaya Bail of Sadler Sullivan, P.C., Birmingham, for ap-pellee.
   PER CURIAM.

Levert Hedgemon, Sr. (“the employee”), sued his employer, United Parcel Service, Inc. (“the employer”), on September 5, 1997, seeking to recover workers’ compensation benefits for a back injury he had suffered during the course of his employment. The employer voluntarily paid permanent-partial-disability benefits based upon a six-percent impairment rating assigned by the employee’s treating physician. Subsequently, however, the employer later filed a counterclaim seeking reimbursement of the benefits it had paid, averring that, not long before the counterclaim was filed, the employee had been determined to have suffered no permanent disability. Following an ore tenus proceeding, the trial court entered the following judgment:

“This cause came on to be heard upon testimony taken and other evidence presented at an oral hearing, without jury. This case is basically a workmen’s compensation case, but it has the additional issue of the employer’s claim for reimbursement for money paid in good faith for permanent partial disability benefits if the Court finds that there is no permanent partial disability arising out of a compensable injury under the Workers’ Compensation Act (‘Act’).
“The facts in this case are generally stipulated and not in dispute. The parties are subject to the Act and an employer/employee relationship existed on October 31, 1995, when the employee had an accident while driving for the employer in the line and scope of his employment. The employee’s average weekly wage, including the value of benefits, was ONE THOUSAND ELEVEN AND 27/100 DOLLARS ($1,011.27). The employer paid temporary total disability benefits of EIGHT THOUSAND FOUR HUNDRED EIGHTY AND NO/ 100 DOLLARS ($8,480.00) (19 weeks and 6 days) and permanent partial disability benefits (‘PPD’) of SEVEN THOUSAND TWO HUNDRED SEVENTY NINE AND 35/100 DOLLARS ($7,279.35).
“It was thought that the employee had reached Maximum Medical Improvement (‘MMF) no later than May 17, 1996, when he had been returned to work ‘full duty’ by Dr. Keith Weaver and Dr. Weaver gave the employee a 6% permanent partial impairment to the body as a whole.
“In 1999, the employee had new medical problems which resulted in surgery being performed by Dr. [Rick] McKenzie in October 1999. Based upon the evidence submitted to it, the Court finds that the 1999 problems were not related to the 1995 accident and further that the problems are a natural condition of the employee and are not job related. Thus, the Court finds that the treatments by Dr. Rick McKenzie and Dr. Wesley Spruill are not related to the October 31, 1995, work related accident.
“Based on the May, 1996 opinion of Dr. Weaver, the employer has been making PPD payments to the employee. Subsequent doctors have now found that the employee has no PPD as a result of the accident. The employer is now seeking reimbursement of the PPD payments. It is the opinion of the Court that all parties were in error when they determined that the employee had a 6% PPD. Since the employee returned to full time work at a wage equal to and then greater than ■ the amount he was making at the time of the accident, this is not to be considered vocational disability.
“In support of the employee’s position, the Court notes that the rights under the Act are strictly statutory and that thus generally the remedies must be determined within the four corners of the Act. In support of the employer’s position are the general principles that when money is mistakenly paid, the party paying the money is entitled to its return, and also the policy of the Act, which encourages an employer to make voluntary payments to the employee pending a final determination of the employee’s rights. The Act provides that overpayment may be recouped from future payments due under the Act, but it is silent as to any right of reimbursement if no future payments are made.
“It is the opinion of the Court that since the Act allows recoupment of over-payments from future benefits, it should also be interpreted to allow recoupment of overpayments when there are no future benefit payments.- To hold otherwise would conflict with the policy in the Act which encourages voluntary payments. The Court finds that the employee did reach MMI no later than May, 1996 and that he did not have permanent partial disability. The Court thus finds that the employer is entitled to a reimbursement of SEVEN THOUSAND TWO HUNDRED SEVENTY-NINE AND 35/100 DOLLARS ($7,279.35) from the employee.”

The employee appeals.

This case is governed by the Workers’ Compensation Act, as amended, § 25-5-1 et seq., Ala.Code 1975 (hereinafter “the Act”). The Act provides that an appellate court’s review of the trial court’s conclusions as to the appropriate standard of proof and other legal issues shall be without a presumption of correctness. Ala.Code 1975, § 25-5-81(e)(l). It further provides that when an appellate court reviews a trial court’s judgment based on its findings of fact, that judgment will not be reversed if the findings of facts are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). Our Supreme Court “has defined the term ‘substantial evidence,’ ... to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

The employee contends that the trial court erred in determining that he had suffered no permanent disability. He relies upon medical evidence in the record that, he says, would support a determination that he suffered a six-percent permanent impairment.

This court has stated:

“A trial court is not bound to accept a physician’s assigned impairment rating and is free to make its own determination as to an employee’s impairment. The impairment rating assigned by a physician is but one factor a court may consider in satisfying its duty to determine the extent of one’s disability. The trial court has the duty to determine the extent of disability and is not bound by expert testimony in making that determination; yet, in making its determination, it must consider all the evidence, including its own observations, and it must interpret the evidence in accordance with its own best judgment.”

Fuller v. BAMSI, Inc., 689 So.2d 128, 131 (Ala.Civ.App.1996) (citations omitted). We note that the resolution of conflicting evidence is within the exclusive province of the trial court, and that we must affirm the judgment of the trial court if it is supported by substantial evidence. Ex parte Trinity Indus., supra. It is the trial court that is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers’ compensation case. Ex parte Alabama Ins. Guar. Ass’n, 667 So.2d 97 (Ala.1995).

A detailed recitation of the facts and evidence in this case is not necessary. Suffice it to say that the trial court’s determination that the employee suffered no permanent partial disability as the result of the work-related accident is supported by substantial evidence. Accordingly, the judgment of the trial court is affirmed as to that issue.

The employee also argues that the trial court erred in entering a judgment in favor of the employer on its counterclaim and in requiring him to reimburse the employer $7,279.35 in permanent-partial-disability benefits.

The trial court correctly points out in its judgment that remedies under Alabama’s Workers’ Compensation Act “generally ... must be determined within the four corners of the Act.” The Act provides that workers who are permanently partially disabled are given the right to certain enumerated benefits; however, in this case, the trial court has determined that the employee is not permanently partially disabled.

Our common law embodies various equitable and other remedies by which one party may recover from another monetary payments that the latter may not be entitled to retain. There is nothing in the Act that expressly deprives an employer of any common-law remedies that may otherwise be available for the recovery of monetary payments that, in equity and good conscience, do not belong to an employee. In this regard, Alabama’s Act ■ contrasts with Minnesota’s ■ workers’ compensation laws, upon which the Minnesota decisions cited by the employee in his brief to this court are based. Although our Act was patterned after Minnesota’s original workers’ compensation act (see, e.g., Ex parte Kimberly-Clark Corp., 779 So.2d 178, 180 (Ala.2000)), our Legislature has seen fit not to adopt a provision comparable to Minn.Stat. § 176.179 (2000), which generally disallows reimbursement.

Conversely, the Alabama Legislature has seen fit to adopt a provision not found in Minnesota’s act, i.e., Ala.Code 1975, § 25-5-56, that expressly reflects a policy of encouraging voluntary payments by employers. Section 25-5-56 provides, in pertinent part:

“All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice.”

(Emphasis added.)

In Gold Kist, Inc. v. Mullinax, 650 So.2d 937 (Ala.Civ.App.1994), this court construed § 25-5-56 as being consistent with allowing credit for advance payment of permanent-partial-disability benefits. We explained that

“[t]his interpretation of § 25-5-56 favors the employee by encouraging employers to make payments to the injured employee while waiting, if necessary, for a court determination regarding liability and benefits due. The disallowance of credit for advance payments for permanent partial disability would, in all likelihood, discourage advance payments.”

Id. at 939 (emphasis added). Under the same reasoning, it can be said that allowing employers to obtain reimbursement for overpayment of benefits, even if there are no future benefits against which the reimbursement can be credited, would also tend to promote advance payments to employees generally, consistent with legislative intent and with the beneficent purposes of the Act.

We must construe Alabama’s Workers’ Compensation Act as written. The Act, and Alabama precedents, express a policy to encourage voluntary payments. The Act gives no right to permanent-partial-disability benefits to employees who are not permanently partially disabled. Unlike Minnesota’s act, Alabama’s Act does nothing to abrogate an employer’s common-law rights as they bear on this issue.

While there is no uniform legislative or judicial approach to this subject, several courts have recognized that “the voluntary payment of compensation benefits during the pendency of [compensation] proceedings ... is a matter of great importance to an injured worker and should not be discouraged.” Western Cas. & Sur. Co. v. Adkins, 619 S.W.2d 502, 503-04 (Ky.Ct.App.1981). “Any statutory interpretation which would penalize an employer who voluntarily makes weekly payments to an injured employee in excess of his ultimate liability would certainly discourage voluntary payment by employers and would therefore constitute a disservice to injured workers generally.” Id. at 504. See also Apex Lines, Inc. v. Lopez, 112 N.M. 309, 312, 815 P.2d 162, 165 (Ct.App.1991) (allowing the award of overpaid benefits to an employer under a common-law restitu-tionary theory); Frazier v. AFG Indus., Inc., (No. 03S01-9308-CV-00058, June 14, 1994) (Tenn.1994) (unpublished) (to same effect).

The trial court’s judgment in this case ordered the employee to pay reimbursement of $7,279.35 to the employer. Obviously, such a result is not inconsistent with the authorities discussed herein. Nonetheless, we note that the trial court’s judgment in this regard is based on its legal conclusion that, “since the Act allows re-coupment of overpayments from future benefits, it should -also be interpreted to allow recoupment of overpayments when there are no future benefit payments.” There is no language in the Act, however, that expressly provides for such recoupment.

It is true that the Act does not bar such recoupment. In fact, the Act expresses a policy preference “to encourage advance payments” and provides that the fact of advance payments “shall be without prejudice” to the employer. See Ala.Code 1975, § 25-5-56. Accordingly, the Mullinax court rightly recognized that, in order to make an award of future benefit payments to an employee that would result in the employee’s receiving the correct total amount of benefits to which he or she was entitled under the terms of the Act, it obviously had to allow a credit for all similar payments made in advance of the trial court’s judgment. Mullinax, 650 So.2d at 939. Nothing in Mullinax, however, is in any way inconsistent with the general principle that remedies under the Workers’ Compensation Act “generally must be determined within the four corners of the Act.” Indeed, the essence of our holding today is that there is no provision within the “four corners” of the Act stating that an employee has any right to permanent-partial-disability benefits unless the employee in fact meets the requirements for such benefits under the Act and, concomitantly, that the Act does not contain any language that would deprive an employer of any otherwise available common-law remedy to recover payments that, it is ultimately determined, need not have been made. By the same token, however,’ there is nothing within the four corners of the Act that expressly creates some additional remedy or'cause of action under the Act itself, by which an employer can make such recovery. Thus, employers are left to their common-law remedies, if any.

For all that appears from the trial court’s judgment, that portion of the judgment ordering reimbursement of overpaid benefits is based not upon any common-law theory of recovery, but only upon an interpretation of the terms of the Workers’ Compensation Act. Nonetheless, we will affirm a trial court’s judgment if, as a matter of law, it is right for any reason, even one not recited by the trial court. See Ex parte Wiginton, 743 So.2d 1071, 1076-77 (Ala.1999). However, whether or not a common-law theory of recovery was presented at trial, see Rule 15(b), Ala. R. Civ. P., and adequately proven as a factual matter are questions that should be addressed in the first instance by the trial court in this case. We therefore vacate that portion of the trial court’s judgment ordering such reimbursement and remand this case for additional findings and an entry of judgment consistent with this opinion.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS.

PITTMAN and MURDOCK, JJ., concur.

THOMPSON, J., concurs in the result.

YATES, P.J., and CRAWLEY, J„ concur in part and dissent in part.

YATES, Presiding Judge,

concurring in part and dissenting in part.

I concur with the main opinion’s affir-mance of the trial court’s determination that Hedgemon suffered no permanent-partial disability. However, because I believe that UPS has waived any argument that it has a right of recovery under a common-law theory, I must respectfully dissent from that portion of the main opinion that remands this case for the trial court to consider such a theory.

UPS began voluntarily paying Hedgem-on permanent-partial-disability benefits based on an assigned impairment rating of 6% given by Dr. Keith Weaver. Subsequently, other treating physicians determined that Hedgemon had no permanent-partial disability. The court concluded that “all parties were in error” when it was determined that Hedgemon had a 6% impairment rating, and it ordered that UPS was entitled to be reimbursed for the permanent-partial-disability benefits it had paid to Hedgemon.

It is well settled that the workers’ compensation laws should be liberally construed and that all reasonable doubts should be resolved in favor of the employee. Owsley v. Winston Furniture Co., 596 So.2d 12 (Ala.Civ.App.1992). Section 25-5-56, Ala.Code 1975, addresses the effect of the voluntary pretrial payment of benefits to an employee. Section 25-5-56 provides, in part:

“All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation. In order to encourage advance payments, it is expressly provided that the payments shall not be construed as an admission of liability but shall be without prejudice.”

This court has held that an employer is entitled to a credit against a final award of compensation for permanent-partial-disability benefits paid to the employee. Gold Kist, Inc. v. Mullinax, 650 So.2d 937 (Ala.Civ.App.1994). This court stated:

“To disallow credit for advance payment of permanent partial disability, as in this case, is contrary to the legislative intent of § 25-5-56, which encourages employers to make advance payments during the period between the accident and the determination of liability and the extent of the injury. This interpretation of § 25-5-56 favors the employee by encouraging employers to make payments to the injured employee while waiting, if necessary, for a court determination regarding liability and benefits due. The disallowance of credit for ad-vanee payments for permanent partial disability would, in all likelihood, discourage advance payments.”

650 So.2d at 939.

In this case the question is not whether the employer is entitled to a credit for permanent-partial-disability payments against a final award of compensation, but whether the employer is entitled to be reimbursed by the employee for permanent-partial-disability payments paid to the employee when the employee receives no future award of compensation.

No provision in the Workers’ Compensation Act allows an employer to be reimbursed for permanent-partial-disability benefits paid to the employee when the employee receives no final award of future compensation. Although it did not cite Mullinax, the trial court relied upon the same rationale set forth in Mullinax (to encourage the voluntary payment of benefits) in interpreting the Act and imposing upon the employee the burden of reimbursing the employer for permanent-partial-disability payments received when the employee is awarded no future compensation. I conclude that Mullinax is easily distinguishable from the present case and that its rationale will not support the trial court’s interpretation of the Act — which imposes upon the employee the burden of reimbursing the employer for permanent-partial benefits when the employee is awarded no future compensation.

In Mullinax the employee received an award of future compensation benefits against which the credit could be given. To award the employer credit for permanent-partial-disability benefits in that case is consistent with both the beneficent purpose of the Act and the policy of the Act favoring voluntary payments.

In this case, however, Hedgemon received no future award of compensation. To interpret the Act in a way that would require the employee to repay benefit payments that were made and received in good faith based on the medical evidence and other information that was available at the time, would likely impose a hardship upon the employee and would cross the line from the well-established principles of construing the Act in order to effectuate its beneficent purpose and resolving all doubts in favor of the employee; it would amount to construing the statute, and resolving all doubts, in favor of the employer. Such an interpretation could discourage the employee from seeking rehabilitation or further treatment in order to improve his quality of life if it was likely that he would have to repay substantial amounts of benefits already paid to him.

Our Legislature could enact legislation allowing such a refund of benefits paid under a mistake of fact or law, but, until such time as it does, the Workers’ Compensation Act must be construed as it is written; currently, no provision in the Act would allow such a refund. Accordingly, UPS is not entitled, pursuant to the Act, to pursue a refund or reimbursement of the benefits it paid by mistake to Hedgemon.

The main opinion, however, concludes that UPS may pursue a common-law theory of recovery in order to obtain a refund of the monies paid to Hedgemon. However, UPS neither presented the trial court with a common-law theory of recovery nor argued in the trial court that it was entitled to pursue a common-law theory of recovery. Likewise, UPS has not argued to this court that it was entitled to pursue a common-law theory of recovery. Issues not presented to the trial court may not be considered by this court. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Further, issues not argued on appeal are waived. Bush v. Laggo Props., L.L.C., 784 So.2d 1063 (Ala.Civ.App.2000). Because I believe that UPS has waived any argument that it may be entitled to a common-law theory of recovery, I must dissent.

CRAWLEY, J., concurs.

      . Minn.Stat. 176.179 provides, in pertinent part:
      "[E]xcept as provided in this section, no lump sum or weekly payment, or settlement, which is voluntarily paid to an injured employee or the survivors of a deceased employee in apparent or seeming accordance with the provisions of this chapter by an employer or insurer, or is paid pursuant to an order of the workers’ compensation division, a compensation judge, or court of appeals relative to a claim by an injured employee or the employee's survivors, and received in good faith by the employee or the employee's survivors shall be refunded to the paying employer or insurer in the event that it is subsequently determined that the payment was made under a mistake in fact or law by the employer or insurer. When the payments have been made to a person who is entitled to receive further payments of compensation for the same injury, the mistaken compensation may be taken as a partial credit against future periodic benefits. The credit applied against further payments of temporary total disability, temporary partial disability, permanent partial disability, permanent total disability, retraining benefits, death benefits, or weekly payments of economic recovery or impairment compensation shall not exceed 20 percent of the amount that would otherwise be payable.
      "A credit may not be applied against medical expenses due or payable.
      "Where the commissioner or compensation judge determines that the mistaken compensation was not received in good faith, the commissioner or compensation judge may order reimbursement of the compensation. For purposes of this section, a payment is not received in good faith if it is obtained through fraud, or if the employee knew that the compensation was paid under mistake of fact or law, and the employee has not refunded the mistaken compensation.”

      . New Mexico has developed a balancing test to be applied in situations such as the one presented by this case, balancing the principle of encouraging voluntary payments with the principle of preventing undue hardship to employees. Some considerations to be considered are (1) the employee's culpability in allowing the overpayments to continue, (2) the employer's negligence in making the overpay-ments, (3) the employee’s ability to repay, (4) the hardship an employee would suffer if made to repay, and (5) the amount of the overpayment that must be repaid. Apex Lines, Inc. v. Lopez, 112 N.M. 309, 815 P.2d 162 (Ct.App.1991).

      . Our supreme court has stated:

        " 'It is well settled that money voluntarily paid under a mistake of fact may be recovered, even where the party paying had means of ascertaining the real facts. However, it is equally well settled that money voluntarily paid with full knowledge of the facts but by reason of mistake of law cannot be recovered.’ "

        Stone v. Mellon Mortgage Co., 711 So.2d 451, 458 (Ala.2000), quoting Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251, 257 (Ala.1978) (citations omitted).


source: Caselaw Access Project

author: WISE, Judge.

license: Public Domain

text:
    Roy Wayne AVERY v. STATE of Alabama.
    CR-00-1006.
    Court of Criminal Appeals of Alabama.
    June 29, 2001.

      Roy Wayne Avery, pro se.
    Bill Pryor, atty. gen., and Cedric B. Colvin, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Roy Wayne Avery, appeals from the circuit court’s summary denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim.P. In that petition, he attacked his 1998 convictions for second-degree kidnapping, first-degree assault, first-degree theft, and second-degree receiving stolen property. Avery pleaded guilty to all of the charges, and was sentenced as a habitual felony offender to 25 years’ imprisonment for each conviction, with the sentences to run concurrently. Avery appealed his conviction for first-degree assault and his conviction for second-degree receiving stolen property. Avery also attempted to appeal his convictions for second-degree kidnapping and first-degree theft, but this Court dismissed the appeal from those convictions as untimely. Avery v. State (CR-98-0419), 744 So.2d 971 (Ala.Crim.App.1998) (table). We affirmed Avery’s convictions for first-degree assault and second-degree receiving stolen property on direct appeal, by an unpublished memorandum. Avery v. State (CR-98-0418), 768 So.2d 1026 (Ala.Crim.App.1999) (table). The Alabama Supreme Court on December 17, 1999, denied Avery’s petition for certiorari review, without an opinion. Ex parte Avery (No.1981795), 780 So.2d 813 (Ala.1999) (table).

On September 13, 2000, Avery filed a Rule 32 petition, challenging his four convictions. The Rule 32 petition claimed: 1) that his guilty pleas were involuntary and that he had been incorrectly informed of the minimum sentence he could receive; 2) that the prosecution failed to disclose certain evidence; 3) that the grand and/or petit jury was unconstitutionally impaneled; 4) that his trial counsel and appellate counsel were ineffective; and 5) that he was denied a direct appeal through no fault of his own.

Rule 32.2(a)(4), Ala.R.Crim.P., provides that: “A petitioner will not be given relief under this rule based upon any ground: ... [wjhich was raised or addressed on appeal or in any previous collateral proceeding.” Avery’s direct appeal of his convictions for first-degree assault and second-degree receiving stolen property resulted in this Court’s holding, in an unpublished memorandum, that his guilty plea was voluntary and that the trial court had correctly advised him of the statutory range of punishment. Avery v. State, supra, 768 So.2d 1026. Therefore, this court will not review, as part of the instant Rule 32 proceeding, Avery’s claims that his guilty pleas were involuntary as to these two convictions and that he was incorrectly informed of the possible sentence range. See Rule 32.2(a)(4), Ala.R.Crim.P.

Avery’s argument that the prosecution failed to disclose certain evidence and that the grand and/or petit jury was unconstitutionally impaneled is likewise barred from review by this Court, because these claims could have been, but were not, raised on direct appeal. Rule 32.2(a)(5), Ala.R.Crim.P., provides: “A petitioner will not be given relief under this rule based upon any ground ... [wjhich could have been but was not raised on appeal.” Therefore, these issues are precluded from review by this Court.

However, as the State acknowledges, Avery’s claims of ineffective assistance of trial and appellate counsel, and his claim that he was denied a direct appeal through no fault of his own, may be meritorious on their face. Neither the district attorney nor the trial court directly addressed these arguments. At the time of Avery’s convictions, Ex parte Ingram, 675 So.2d 863 (Ala.1996), had been released. Ingram overruled Ex parte Jackson, 598 So.2d 895 (Ala.1992), to the extent that Jackson had allowed a defendant, under certain circumstances, to extend the 30-day time limit for filing a motion for a new trial.

Under Ingram, the proper method for presenting an ineffective assistance of trial counsel claim that could not reasonably be presented in a motion for a new trial is by filing a Rule 32 petition.

“If the appellant was convicted before the Alabama Supreme Court’s decision in Ingram, newly appointed appellate counsel could have presented claims of ineffective assistance of trial counsel in a motion for new trial filed pursuant to Ex parte Jackson, 598 So.2d 895 (Ala.1992). Those same claims of ineffective assistance of trial counsel could have then been presented on direct appeal. Accordingly, if the appellant was convicted before the decision in Ingram, and the appellant was, in fact, represented by separate appellate counsel, then the allegations of ineffective assistance of trial counsel presented in the Rule 32 petition are precluded from review, because the claims could have been, but were not, raised at trial and on appeal. Rule 32.2(a)(3) and (5), Ala.R.Crim.P. If, however, the appellant was convicted after Ingram, the appellant is not necessarily precluded from raising allegations of ineffective assistance of trial counsel in a Rule 32 petition. If the appellant can establish that appellate counsel could not have reasonably asserted all the allegations of ineffective assistance of trial counsel in a timely filed motion for new trial' — thereby preserving the claims for review on direct appeal — then the appellant is not precluded from raising ineffective assistance of trial counsel claims in a Rule 32 petition.”

Andersch v. State, 716 So.2d 242, 245 (Ala.1997). “The Rule 32 petition represents the appellant’s first opportunity to present [an ineffective assistance of appellate counsel claim] to the circuit court.” Alderman v. State, 647 So.2d 28, 31 (Ala.Crim.App.1994); Wood v. State, 733 So.2d 944, 945 (Ala.Crim.App.1999). This Court has also held that a postconviction petitioner’s allegation that he has been denied a direct appeal through no fault of his own could entitle him to an out-of-time appeal. Parker v. State, 719 So.2d 259, 260 (Ala.Crim.App.1997); Noble v. State, 708 So.2d 217, 217 (Ala.Crim.App.1997); Rule 32.1(f), Ala.R.Crim.P.

Avery was convicted August 14, 1998, after the decision in Ex parte Ingram was released, but the record does not indicate whether his appellate counsel could have reasonably asserted all allegations of ineffective assistance of counsel in a timely filed motion for a new trial. In fact, Avery claims that the failure to appeal was through no fault of his own, because, he says, his appellate counsel failed to assist him in filing an appeal. He also claims that the trial court did not appoint appellant counsel until after the time for filing a motion for a new trial had elapsed. Avery’s appeal from his convictions for second-degree kidnapping and first-degree theft was dismissed by this Court as untimely. Avery v. State, supra, 744 So.2d 971.

Although some of Avery’s allegations are precluded from review, several of his allegations are not, and from the record before this Court, we are unable to assess the merits of Avery’s allegations. Accordingly, we must remand this cause to the trial court for that court to enter a new order addressing those claims. The circuit court’s order should determine whether Avery could have reasonably raised his ineffective-assistance-of-trial-counsel claim in a motion for a new trial; if the court determines that the allegations could not have been raised in a motion for a new trial, it should address Avery’s allegations of ineffective assistance of trial counsel. See Bass v. State, 810 So.2d 802 (Ala.Crim.App.2001). The court’s order should also address Avery’s allegations of ineffective assistance of appellate counsel. Finally, the court should determine if Avery was denied a direct appeal as to two of his convictions through no fault of his own. On remand, the circuit court may conduct such further proceedings or take such evidence as it deems necessary to make its determination. Should the trial court deem it necessary to hold an evidentiary hearing addressing Avery’s claims, the circuit court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala.R.Crim.P., requires the circuit court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). In making these factual determinations, the circuit court may take judicial notice of the record from Avery’s guilty-plea proceedings. If the court’s findings are based on personal knowledge of Avery’s case, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ„ concur.

       Note from the reporter of decisions: On January 25, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On February 15, 2002, that Court denied rehearing, without opinion. On April 19, 2002, the Supreme Court denied certiora-ri review, without opinion (1010975).


author: SHAW, Judge.

text:
    Jimmy Lewis RUMP v. STATE of Alabama.
    CR-00-0873.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2001.

      John H. Wiley III, Birmingham, for appellant.
    Bill Pryor, atty. gen., and E. Vincent Carroll, deputy atty. gen., for appellee.
   SHAW, Judge.

In a separate unpublished memorandum released today, we are affirming Jimmy Lewis Rump’s convictions for disorderly conduct, see § 13A-11-7, Ala.Code 1975, and for resisting arrest, see § 13A-10-41, Ala.Code 1975. However, because we find that Rump’s one-year sentence for each of those convictions exceeds the maximum authorized by law, we must remand this cause to the trial court for resentencing.

“Matters ■ concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence even though Rump did not raise the issue in the trial court or in his brief on appeal. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999). Disorderly conduct is a Class C misdemeanor, see § 13A-ll-7(b), Ala.Code 1975, punishable by a term of imprisonment of “not more than three months,” § 13A-5-7(a)(3), Ala.Code 1975; resisting arrest is a Class B misdemeanor, see § 13A-10-41(b), Ala. Code 1975, punishable by a term of imprisonment of “not more than six months,” § 13A-5-7(a)(2), Ala.Code 1975. Because Rump was sentenced to one year’s imprisonment for the disorderly conduct conviction and to one year’s imprisonment for the resisting-arrest conviction, his sentences exceed the maximum authorized by law and are, therefore, void. See, e.g., Ferguson v. State, 565 So.2d 1172, 1173 (Ala.Crim.App.1990) (“When the court imposes a sentence in excess of that authorized by statute, it exceeds its jurisdiction, and the sentence is consequently void.”).

Accordingly, we remand this cause to the trial court with directions for that court to resentence Rump on his convictions for disorderly conduct and for resisting arrest in accordance with § 13A-5-7, Ala.Code 1975. Due return should be filed with this Court no later than 28 days from the date of this opinion.

AFFIRMED BY MEMORANDUM AS TO CONVICTIONS ; REMANDED WITH DIRECTIONS AS TO SENTENCING.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

       Note from the reporter of decisions: This case will also appear on a table of decisions without opinions.

       Note from the reporter of decisions: On April 19, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: McMILLAN, Presiding Judge.

text:
    Lovella S. NEVILLE v. STATE.
    CR-99-0384.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Certiorari Denied April 19, 2002 Alabama Supreme Court 1010606.
    Charles Jackson Perkins, Birmingham, for appellant.
    Bill Pryor, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   On Rehearing Ex Mero Motu

McMILLAN, Presiding Judge.

The original opinion of December 22, 2000, is withdrawn and the following opinion is substituted therefor.

The appellant, Lovella S. Neville, appeals from her conviction for the unlawful distribution of a controlled substance, i.e., cocaine, a violation of § 13A-12-211, Ala. Code 1975. She was sentenced as a habitual felony offender to life imprisonment and was ordered to pay a fine of $1,000.

I.

The appellant argues that she was denied due process when the trial court ordered her case consolidated with the distribution case of her husband, Gary Ne-ville, without giving her an opportunity to object to the consolidation. Additionally, she argues that her case was improperly joined with her husband’s case of promoting prostitution. She argues that, because the evidence in that latter case (i.e., promoting prostitution) implied that she was a prostitute and therefore was evidence of prior bad acts on her part, it was highly prejudicial and should not have been admitted into evidence.

Although the record in this case does not contain a motion to consolidate, the case action summary sheet indicates that a pretrial hearing was set for April 15, 1999. The hearing was continued until May 14, 1999, at which time the appellant’s case was “consolidated for trial purposes with CC-99-1562 [the distribution case of her husband and codefendant, Gary Neville] over defense counsel’s objection.” (Emphasis added.)

Rule 13.3(c), Ala.R.Crim.P., states:

“(c) Consolidation. If ... defendants are charged in separate indictments, in-formations, or complaints, the court, on its own initiative or on motion of any party, may order ... that the defendants be joined for the purposes of trial if ... the defendants could ... have been joined in a single indictment, information, or complaint. Proceedings thereafter shall be the same as if the prosecution initially were under a single indictment, information, or complaint. However, the court shall not order that ... the defendants be tried together without first providing the defendant or defendants and the prosecutor an opportunity to be heard.”

Maul v. State, 598 So.2d 18, 21 (Ala.Crim.App.1992).

This Court has held that the “opportunity to be heard” includes notice and the opportunity to object, but does not necessarily require an adversarial hearing or oral argument. Sharpe v. State, 560 So.2d 1107 (Ala.Crim.App.1989). Interpreting Rule 15.4(b), Ala.R.Crim.P, this Court stated in Shai"pe:

“Notice and an opportunity to be heard are the ‘hallmarks of due process,’ Anonymous v. Anonymous, 353 So.2d 515, 519 (Ala.1977). See also Humane Society of Marshall County v. Adams, 439 So.2d 150, 152 (Ala.1983) (‘The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner’). However, ‘ “[d]ue process does not always require an adversarial hearing.” Hickey v. Morris, 722 F.2d 543, 549 (9th Cir.1983).’ Williams v. Wallis, 734 F.2d 1434, 1439 (11th. Cir.1984).”

560 So.2d at 1111.

Here, we find no due process violation because the appellant did receive notice of, and filed an objection to, the trial court’s consolidation. Additionally, we note that the record indicates that the appellant failed to file a motion to sever the cases. “Rule 13.4(b), Ala.R.Crim.P., requires that a motion to sever made after a motion to consolidate has been granted must be filed within seven days after the court’s order of consolidation. The Rule further states that the right to move for a severance is waived if a motion is not timely made.” Gagliardi v. State, 695 So.2d 206, 208 (Ala.Crim.App.1996).

Moreover, the appellant has failed to show that the consolidation caused “compelling prejudice” against which the trial court was unable to afford protection. In Weaver v. State, 710 So.2d 480, 482 (Ala.Crim.App.1997), this Court stated:

“The test for determining whether a trial court erred in consolidating criminal defendants for trial is whether the defenses presented by one defendant were so ‘antagonistic that [the defenses] are “irreconcilable and mutually exclusive” and “the jury, in order to believe one defendant, must necessarily disbelieve the other defendant’s defenses.” ’ Hill v. State, 481 So.2d 419, 424 (Ala.Crim.App.1985).”

Lastly, the appellant’s argument that she was prejudiced by the introduction of evidence in a case against her husband, which she says tended to show that she was a prostitute and which, she says, constituted inadmissible evidence of prior bad acts, was not timely presented to the trial court; therefore, it was not preserved for appellate review. Smith v. State, 756 So.2d 892 (Ala.Crim.App.1997); McCord v. State, 501 So.2d 520 (Ala.Crim.App.1986).

II.

The appellant argues that the trial court erred in denying her motion for a judgment of acquittal, based on the prejudicial effect of the consolidation of the cases. The record indicates, however, that during trial, the appellant stated as grounds for her motion that the State had failed to prove a prima facie case of distribution and had failed to prove a proper chain of custody as to certain evidence admitted at trial. Because the grounds argued on appeal were not presented to the trial court, they are procedurally precluded from appellate review. See Perkins v. State, 715 So.2d 888 (Ala.Crim.App.1997) (a defendant is bound by the grounds of objection stated at trial and may not expand those grounds on appeal).

III.

The appellant argues that the trial court erred in denying her motion for a new trial based on numerous grounds, including improper consolidation, due process violations, and an improper verdict that was the result of bias and prejudice.

An examination of the record reveals that all of the arguments contained in the motion, and in the amended motion, with the exception of a sufficiency argument, were not preserved for appellate review. See Perkins v. State, supra. The appellant, however, does not present a sufficiency argument on appeal. The appellant failed to supply, in her brief to this Court, any legal authorities, statutes, or parts of the record upon which she relies to advance a sufficiency argument; therefore, appellate review as to this issue is' declined. Rule 28(a)(5), Ala.R.App.P.

ON REHEARING EX MERO MOTU: OPINION OF DECEMBER 22, 2000, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


text:
    Eddie James ZACKERY v. STATE of Alabama.
    CR-00-1376.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.
    Eddie James Zackery, pro se.
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   SHAW, Judge.

Eddie James Zackery appeals from the revocation of his probation, contending that the trial court’s order revoking his probation should be set aside because, he says, he was not afforded due process. The basis of Zackery’s contention is that the trial court did not hold any type of probation-revocation hearing at which Zackery was present and that he did not waive the probation-revocation hearing, pursuant to Rule 27.5(b), Ala.R.Crim.P.; that the trial court did not afford him the opportunity to request counsel; and that the trial court’s written order did not state the evidence relied upon by the trial court in revoking Zackery’s probation.

The record tends to show the following: On December 11, 1997, Zackery pleaded guilty to unlawful possession or receipt of a controlled substance, a violation of § 13A-12-212, Ala.Code 1975; he was sentenced to five years’ imprisonment. The sentence was suspended and Zackery was placed on supervised probation.

On January 11, 2001, the trial court scheduled a probation-revocation hearing for February 22, 2001, and on the scheduled hearing date, the following occurred:

“THE COURT: CC-97-677, State v. Eddie Zackery.
“[Prosecutor]: Judge, [his probation officer] said that he got a new conviction in Clay County, it was a felony, and that they’ve already sent him to Kilby.
“[Probation officer]: Judge, he wanted to be revoked, and I’ve got a certified copy of his conviction. His sister called me yesterday and said he wanted us to know that they had already taken him down to Kilby.
“THE COURT: Okay. IT go ahead and revoke him.”

(R. 2.)

On that same date, the trial court entered the following order in the case action summary:

“This matter came before the court this date for a probation revocation hearing, at which time the Defendant failed to appear. However, the court was informed that Defendant was currently serving a new sentence out of Clay County in Kilby Correctional Facility. The court was further informed that Defendant requests this court to proceed with the revocation of his probation in this case. It is therefore ordered, adjudged and decreed that the Defendant’s probation be and hereby is revoked and the Defendant is hereby ordered to serve his original sentence in this case.”

(C. 2.)

In Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), this Court stated:

“Section 15-22-54, Ala.Code 1975, requires a hearing as a prerequisite to the revocation of probation. This statutory requirement is mandatory and jurisdictional. Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). Additionally, the appellant was denied his constitutional right to due process by the revocation of his probation without a hearing. The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfin-ders as to the evidence relied on and the reasons for revoking probation. Rule 27.5 and 27.6, Ala. R.Crim. P. See Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Hernandez v. State, 673 So.2d 477 (Ala.Cr.App.1995).”

(Emphasis added.) In Peoples v. State, 807 So.2d 608, 610 (Ala.Crim.App.2001), this Court stated:

“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Cr.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Cr.App.1992). This Court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’
“Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This Court has also held that a defendant can raise for the first time on appeal the allegation that the trial court erred in failing to advise him of his right to request an attorney to represent him during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000).”

In its brief to this Court, the State contends that the trial court’s order revoking Zackery’s probation is due to be affirmed because, it says, Zackery waived his right to be present at the revocation hearing, pursuant to Rule 27.5(b), Ala. R.Crim.P. However, after reviewing the record, we cannot agree.

The record does not contain a delinquency report or any documentation indicating that Zackery was given notice of the claimed violations of his probation or the evidence to be presented against him in his probation-revocation hearing — the only information before this Court is the statements made during the “hearing” that Zackery had “a new conviction in Clay County, it was a felony, and that they’ve already sent him to Kilby” and that “he wanted to be revoked.” (R. 2.) In his brief, Zackery states that after his arrest in Clay County, he did not see or speak with his probation officer.

There is no indication in the record that Zackery was afforded the minimal due-process requirements as set out in Hollins, supra. There is also no indication in the record that Zackery was advised by the trial court at any time that he had a right to request an attorney or that the trial court made an initial determination as to whether Zackery was entitled to counsel. See Law v. State, 778 So.2d 249, 251-52 (Ala.Crim.App.2000). We have quoted the entire probation-revocation “hearing,” and under the facts of this case, we cannot find that this two-minute exchange between the trial court, the prosecutor, and Zackery’s probation officer can be classified as a probation-revocation hearing.

In light of the foregoing, we find that Zackery was not afforded the minimum due-process rights to which he was entitled. Thus, the trial court’s order revoking Zackery’s probation is reversed and this cause is remanded to the trial court to conduct probation-revocation proceedings in compliance with Rule 27.6, Ala. R.Crim.P. The trial court shall take all necessary action to ensure that the return to remand order is made within 60 days of the date of this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur.

WISE, J., dissents, without opinion.

       Note from the reporter of decisions: On April 19, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Raymond M. MATHENY v. STATE of Alabama.
    CR-00-1410.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      James Warren May, Foley, for appellant.
    Bill Pryor, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   SHAW, Judge.

Raymond Matheny was convicted of assault in the third degree, a violation of § 13A-6-22, Ala.Code 1975. He was sentenced to one year’s imprisonment.

Matheny raises one issue on appeal: he argues that the trial court erred in ordering him to pay restitution without conducting a hearing. The State agrees that the trial court erred in not conducting a restitution hearing and requests that this Court remand this case for the trial court to hold such a hearing.

The record reflects that on April 18, 2001, 15 days after Matheny was sentenced, the State filed a “Notice of Restitution” with the trial court, seeking restitution in the amount of $11,850. (C. 18.) On April 20, 2001, Matheny filed an objection to the restitution amount the State requested and he requested a restitution hearing. However, on May 11, 2001, without conducting a hearing, the trial court issued a written order granting the State’s restitution request and ordering Matheny to pay $11,850 in restitution. In that order, the trial court also indicated that Matheny had 30 days from the date of the order “to object to the restitution amount entered in this case” and that if Matheny objected, the court would conduct a hearing. (C. 22.) However, as the State correctly points out in its brief to this Court, Matheny had already filed an objection to the amount of restitution and had requested a hearing on the matter. By ordering Matheny to pay restitution without a hearing after he had objected and requested such a hearing, the trial court effectively denied Matheny’s request for a hearing. This was error.

“It is clear that the purpose of a restitution hearing is to arrive at a precise amount of restitution due a victim because of a defendant’s acts, so that the victim may be fully compensated. The purpose is not to punish the defendant. Because the purpose of these hearings is to compensate, evidence must be presented concerning the exact nature of the victim’s damage or loss.

“ We agree with the defendant that he was entitled to a hearing, at which legal evidence was introduced, in order to determine the precise amount of restitution due the victim in this case. Sections 15-18-67 and -69, Code of Alabama 1975, provide the following:
“ ‘When a defendant is convicted of ... criminal activity or conduct which has resulted in pecuniary damages or losses to a victim, the court shall hold a hearing to determine the amount or type of restitution due the victim or victims of such defendant’s criminal acts.... [T]he court shall order that the defendant make restitution or otherwise compensate such victim for any pecuniary damages....
“ ‘In addition, Rule 10(a)(5), Ala. R.Crim.P. Temp., provides that the amount of restitution due the victim “shall be determined by the court from evidence presented at the sentence hearing if not stipulated by the parties.” ’ ”

Williams v. State, 624 So.2d 661, 663-64 (Ala.Crim.App.1993), quoting Henry v. State, 468 So.2d 896, 901 (Ala.Crim.App.1984), cert. denied, 468 So.2d 902 (Ala.1985) (emphasis in Henry). See also Jolly v. State, 689 So.2d 986 (Ala.Crim.App.1996).

Matheny was entitled to a restitution hearing to determine the amount of restitution due the victim. Therefore, we remand this case to the trial court for that court to conduct a restitution hearing in accordance with §§ 15-18-65 through 15-18-78, Ala.Code 1975, and Rule 26.11, Ala. R.Crim.P. .

REMANDED WITH DIRECTIONS.

McMILLAN, p.j., and COBB, BASCHAB, and WISE, JJ„ concur.

       Note from the reporter of decisions: On April 19, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: COBB, Judge. WISE, Judge

text:
    Roderick Dewayne WHITE v. STATE.
    CR-00-1374.
    Court of Criminal Appeals of Alabama.
    Nov. 30, 2001.

      John David Floyd, Gadsden, for appellant.
    Bill Pryor, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   COBB, Judge.

On September 10, 1999, Roderick Dewayne White was indicted on one count of distribution of cocaine, a violation of § 13A-12-211, Ala.Code 1975, and one count of trafficking in cocaine, a violation of § 13A-12-231, Ala.Code 1975. On October 20, 1999, White waived arraignment and entered a formal “not-guilty” plea. White withdrew his not-guilty plea and entered into a written plea agreement on August 14, 2000.

Pursuant to the plea agreement, the State nol prossed the distribution count of the indictment, and White pleaded guilty to the trafficking count of the indictment. The guilty plea form showed a recommended sentence of 15 years, to be split so that White would serve 3 years. The form also stated that probation was discretionary and was not a condition of the agreement, and that the prosecutor would oppose probation, as not applicable on a split sentence. (C. 17.)

On March 27, 2001, the trial court sentenced White, in accordance with the written plea agreement form, to a 15-year sentence; that sentence was split, and he was ordered to serve the mandatory minimum of 3 years’ incarceration under § 13A-12-211, Ala.Code 1975, followed by 12 years’ probation. White was also ordered to pay attorney’s fees and court costs, $52,150 in fines and assessments, and to submit to random drug testing.

The district attorney then informed the sentencing judge that the State was not recommending probation. White then made an oral motion to withdraw his guilty plea, arguing that the plea bargain provided the possibility of probation if White substantially assisted law enforcement in pursuing other drug cases. The trial judge stated that, absent a recommendation from the district attorney, he had “no leeway other than to impose sentence and not grant probation.” (R. 22.)

White then filed timely motions for the trial court (1) to permit him to withdraw his guilty plea and (2) to declare § 13A-12 — 232(b), Ala.Code 1975, unconstitutional as it applied to this case. On April 9, 2001, the trial court denied the motions, following a hearing.

First, White contends that the trial court erred by not ruling on the constitutionality of § 13A-12-232(b), Ala.Code 1975, as to the facts in this case. He argues that the district attorney abused his discretion in refusing to recommend probation. Section 13A-12-232(b), Ala. Code 1975, provides:

“The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of Section 13A-12-231 ... and who provides substantial assistance in the arrest, or in the conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance. Under no circumstances may the judge reduce or suspend the sentence except upon motion of the prosecuting attorney.”

Where the defendant has rendered substantial assistance pursuant to an agreement, and the prosecuting attorney fails to move for a reduction or suspension of the sentence, the defendant may seek to have the foregoing statute declared unconstitutional as it applies to his particular case. State v. Drewry, 519 So.2d 591, 597 (Ala.Crim.App.1987). In Drewry, the court set out the three-prong test for determining the unconstitutionality of the section:

“However, before a sentencing judge may find that § 20-2-81(b) [the predecessor statute to § 13A-12-232(b) ] is unconstitutional in its application to a particular defendant, that judge must make an express finding (1) that the defendant has provided ‘substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals,’ § 20-2-81 (b); (2) pursuant to an agreement with the State; and (3) that the State has arbitrarily or unjustifiably breached the terms of the agreement by refusing to make the motion for sentence reduction or suspension.”

519 So.2d at 597.

The issue whether the defendant has provided substantial assistance must be decided on a case-by-case basis. Id. The record in this case contains a letter from a Drug Enforcement Agency (“DEA”) agent to the prosecutor that described the assistance White provided the DEA. In particular, the letter described White’s assistance in the arrest and prosecution in federal court of two individuals for distribution and conspiracy to distribute controlled substances, and of White’s efforts in a third case in which the DEA agent was transferred and the investigation was terminated. The letter continued to describe other information White provided in a murder investigation and in other drug transactions at “great risk to Mr. White’s person and family.” (C. 47.) The letter from the DEA agent concluded by stating, “I fully believe Mr. White met all aspects of our agreement and I strongly urge the District Attorney’s Office to bear that in mind on any future plea agreements entered into with Mr. White.” (C. 48.) The State contends that White’s activities resulted in less than substantial assistance, that White’s activities were limited to assisting federal agents, and that he did not maintain contact with local law enforcement. However, the trial judge made no express findings as to whether White provided substantial assistance, because he believed that he could reduce the sentence only upon a motion from the district attorney.

With regard to the second prong of the Drewry test, although it is uncontro-verted that a plea agreement existed in the present case, there is a dispute as to the terms and conditions of that agreement. White contends that the agreement included the possibility of probation if he provided substantial assistance. The letter from the DEA agent indicates that no guarantees were made as to what sentence White would receive if he cooperated, only that the DEA agent he worked with would recommend leniency based on White’s cooperation. The signed plea agreement states that “probation is discretionary and is not a condition of the agreement” and that “prosecutor will oppose probation, as it is not applicable on split sentence.” (C. 17.) The record indicates there might have been terms agreed upon by the parties other than those included in the written plea agreement. The State, at the motion hearing, seemed to acknowledge that the possibility of probation might have been part of the oral plea bargain, but, the prosecutor argued at the hearing, White, did not provide enough assistance to warrant a recommendation of probation from the State. (R. 39-41.) The trial court is in a better position to hear the evidence and to make a determination as to the terms of the agreement.

The third prong of the Drewry test, whether the State arbitrarily or unjustifiably breached the terms of the plea agreement, cannot be evaluated until the terms and conditions of the agreement are determined.

“[T]here may be cases where the state’s action will constitute bad faith and thereby result in a violation of the contract or plea bargain agreement. If that happens, the relief sought would be ‘specific performance of the agreement or withdrawal of the plea, depending upon the requirements of the circumstances in each case.’ Ex parte Williams, 637 S.W.2d 943 (Tex.Cr.App.1982), cert. denied, 462 U.S. 1108, 103 S.Ct. 2458, 77 L.Ed.2d 1336 (1983).”

Sides v. State, 575 So.2d 1232, 1236 (Ala.Crim.App.1991).

The trial court is in the best position to make a determination as to the terms of the plea agreement, assess the intent of the parties, determine if the agreement was breached, and, if it was, to render an appropriate remedy. Id. at 1237. However, the trial judge specifically stated at the motion hearing that his ruling on the motion was not based on the constitutionality issue. “If I wanted to go way out on a limb I could rule in his favor and set the thing aside, put him back into the fray of things and rule on the constitutionality of this thing, which I’m not going to do.... ” (R. 54.)

Because this Court is unable to determine the terms of the plea agreement, and because the trial court believed it was not authorized to determine whether § 13A-12-232(b) was unconstitutional as applied to White, we cannot review the merits of White’s claims. Therefore, this cause must be remanded for the trial court to rule on the constitutionality of the statute as it applies to White in this case, and to make express findings as called for in Drewry to determine (1) whether the plea agreement provided White with the possibility of parole, and, if the plea agreement did, then (2) whether White provided substantial assistance to law enforcement, and (3) whether the State breached its duties under the agreement.

The State contends that the lack of an express finding on the issue of substantial assistance indicated that the trial judge found that White failed to provide substantial assistance, and that there was no need for an evidentiary hearing to determine whether White had rendered substantial assistance to authorities.' We disagree.

“The determination of whether the defendant has substantially complied with an agreement is better left to the trial court once it has had an opportunity to examine the terms of the plea agreement.” Drewry, 519 So.2d at 595. Unless a clear abuse of discretion has been shown, this' Court will not disturb the decision of the trial court in relation to a finding concerning a plea bargain agreement. Sides, 575 So.2d at 1234. Where the sentencing judge does not make an express finding in accordance with Drewry, then “the only presumption available to this Court is that the circuit court found that the defendant had not rendered substantial assistance, and therefore, declined to hold the sentencing statute unconstitutional as it applied to the defendant.” Drewry v. State, 566 So.2d 248, 250 (Ala.Crim.App.1990).

However, in the present case, the sentencing judge stated:

“[I]fs my understanding that that section called for a recommendation from the D.A.’s office of substantial assistance. Were it up to me to make that call, then I would make that decision and would view the letter [from the DEA] but our legislature ... did not see fit to give the Judge and the Court the authority to make that call. Should they decide in the future to do that, I would be more than happy to listen to all arguments and all evidence in that respect and make the appropriate call.... ”

(R. 45.)

Though the trial judge did not make an express finding of whether White had rendered substantial assistance to law enforcement, he expressly stated that he did not have the discretion to consider whether White had rendered substantial assistance. As we have stated above, the trial judge does have that discretion.

White argues that he should have been allowed to withdraw his guilty plea upon sentencing. “ ‘[W]hether a defendant should be allowed to withdraw a plea of guilty is a matter solely within the discretion of the trial court, whose decision will not be disturbed on appeal absent a showing ■ of abuse of that discretion.’ ” Perry v. State, 741 So.2d 467, 471 (Ala.Crim.App.1999) (quoting Alford v. State, 651 So.2d 1109, 1112 (Ala.Crim.App.1994)). This Court set out the rule to be followed in a case involving the State’s breach of a plea bargain agreement in Blackwell v. State, 556 So.2d 1091 (Ala.Crim.App.1988):

“ ‘[I]f there is a plea agreement between a defendant and the- State and a breach thereof which is made known to the trial court, and if the trial court does not sentence the defendant pursuant to the terms of the plea- agreement ... then the defendant must be given an opportunity, upon proper, timely, and specific motion, to withdraw his guilty plea. At that point, the trial court must review the circumstances surrounding the making of the plea agreement and determine whether ... a breach occurred. Further, it must decide if the guilty plea rested in any significant degree upon the agreement of the State, so that such can be said to be part of the inducement or consideration and, thus, must be fulfilled. The trial court may hold a hearing and receive testimony to determine the above. Once it makes its findings, the trial court then determines the appropriate remedy, if any. Santobello v. New York, 404 U.S. 257, 263 [92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971) ]; See Ex parte Yarber, [437 So.2d 1330 (Ala.1983)].’ ”

556 So.2d at 1093.

We look to the record to see if a plea agreement existed.

“MR. JOHN FLOYD [defense attorney]: And based upon any substantial assistance or assistance he provided between the time of the plea and the time of the sentence and probation then the recommendation be made from the district attorney’s office, if he had provided substantial assistance, for probation. Now, in this particular case, the court’s had, I think, letters sent to it, also, from various people about the assistance that was provided in this particular case.... Originally, the agreement was and they were working with through the DEA Roderick White to provide substantial assistance which he did, in fact, do.”

(R. 33-35.)

The State confirmed that an agreement existed, when the district attorney stated:

“As Your Honor is well aware from the years that he was in private practice and represented clients in criminal cases, the State of Alabama does not recommend probation on trafficking cases for substantial assistance unless other trafficking cases are made out by the defendants in order to get that recommendation. In looking at the letter that came from Agent Newman, apparently that was the only person that Mr. White sought to work with; Mr. White didn’t make any trafficking cases. He made a couple of distribution cases that were handled in Federal Court.... So, as a practical matter the only thing that was done here was make a couple of distribution cases on somebody that we’ve got charges pending against anyway. That’s not substantial assistance, never has been, has never been the position of my office since I’ve been in office.”

(R. 36-37.) The district attorney stated that he did not care “who they worked with” as long as they maintained contact with the law-enforcement agency that made the initial case. (R. 38-39.) The State stated, “Mr. White did not do what was expected of him and, so, as a result of that he got no recommendation.” (R. 39.) The district attorney stated, “The only thing [White] didn’t get was probation but you don’t get probation when you don’t do anything and that’s exactly what happened here with Mr. White.... Well, that’s what he got, he got the minimum sentence and [the DEA agent] advised our office as to what Mr. White had done. The only thing is [that] Mr. White did not meet the criteria for being able to get a recommendation.” (R. 41.)

It is clear from the record that a plea agreement existed in this case. However, it is unclear what terms the parties agreed upon. Therefore, this case is remanded with directions for the trial court to hold an evidentiary hearing to determine the terms of the agreement, and to rule on the constitutionality of the statute as it applies to White in this case. The trial court should state its findings in a written order. Based on these findings, the trial court is authorized to (1) leave White’s sentence undisturbed; (2) set aside the sentence, and resentence White in accordance with the terms of the plea agreement, if it finds the terms require a different sentence; or (3) allow White to withdraw his guilty plea. A return to remand shall be filed within 77 days of the date of this opinion. The return to remand shall include a transcript of the remand proceedings conducted by the trial court, the findings of the trial court, and a record of the actions taken by the trial court.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J. and SHAW, J., concur. WISE, J., dissents, with opinion. BASCHAB, J., joins dissent.

WISE, Judge

(dissenting).

I respectfully dissent from the majority opinion remanding White’s case to the trial court with directions that it hold an evi-dentiary hearing to determine the terms of the plea agreement. My review of the record reveals that the plea agreement makes no mention of White’s “substantial assistance” as a term of the agreement. (C. 17.) If the agreement was amended to include additional terms, or if another agreement was made, that agreement is not contained in the record on appeal. As the Supreme Court has held, it is the appellant’s duty to ensure that the record on appeal is complete:

“A reviewing court cannot predicate error on matters not shown by the record. Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. den., 398 So.2d 332 (Ala.1981). Indeed, a silent record supports a judgment. Robertson v. State, 29 Ala. App. 399, 197 So. 73 (1940). It is the appellant’s duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Crim. App.1977), cert. den., 347 So.2d 1384 (Ala.1977); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959).”

Robinson v. State, 444 So.2d 884, 885 (Ala.1983).

Because White failed to ensure that the record on appeal was complete, the record before us contains no indication what the additional terms of the plea agreement were. By remanding this case, this Court is, in effect, giving White “another bite at the apple.” Based on the record before this Court, there is no evidence indicating that the State violated the terms of its plea agreement with White, since the plea agreement contained in the record does not mention more favorable treatment for White in the event of his “substantial assistance” to law enforcement officials. Accordingly, I would affirm White’s conviction. Therefore, I dissent.

BASCHAB, J., concurs.

       Note from the reporter of decisions: On April 19, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.