text:
    SMART PROFESSIONAL PHOTOCOPY CORPORATION d/b/a Smart Corporation v. Deborah CHILDERS-SIMS and Harriet Lowe.
    1010354.
    Supreme Court of Alabama.
    Oct. 11, 2002.
    Rehearing Denied Dec. 13, 2002.

      Anne P. Wheeler, William D. Jones III, and Susan T. Spence of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for appellant.
    F. Page Gamble of Garrison, Scott, Gamble & Rosenthal, P.C., Birmingham, for appellees.
   LYONS, Justice.

Smart Professional Photocopy Corporation d/b/a Smart Corporation (hereinafter “Smart”) appeals from a class-certification order obtained by Deborah Childers-Sims and Harriet Lowe, former customers of Smart (hereinafter referred to collectively as “the customers”). We vacate the class-certification order and remand.

I. Factual Background and Procedural History

Smart is in the business of providing copying and related services to health-care businesses, including medical-care providers and businesses that provide nonmedical services to those providers. A medical provider will typically forward to Smart a letter the provider has received from a patient or a patient’s attorney requesting copies of medical records and/or billing records. Smart retrieves the requested records and forwards the copies, along with its invoice, to the patient or the patient’s attorney requesting the records.

On October 9, 2001, the trial court certified two classes of Alabama residents with claims against Smart. The representatives of each respective class, Childers-Sims and Lowe, claim that Smart charged, and they mistakenly paid, amounts in excess of the “reasonable costs” of reprodue-ing medical records pursuant to § 12-21-6.1, Ala.Code 1975. The customers allege unjust enrichment, money paid by mistake, and money had and received. They seek refunds and other equitable relief.

Smart provides a procedural manual to its employees. That manual directs its employees to charge a fee for shipping and handling equal to 18% of the copying charges, unless management instructs otherwise. Smart contends that its employees have been instructed to charge, in addition to the search fees and copying charges, only actual postage for copies mailed to this State. Smart says that whenever an employee mistakenly charges the 18% fee to someone requesting copies in Alabama, its policy is to adjust the invoice to charge only actual postage fees.

Although the transactions involve separate matters, the claims of Childers-Sims and Lowe are factually similar. Both transactions began in March 1997 and both involve requests for records made through retained counsel. Retained counsel was to pay Smart directly for the requested copies. Both Childers-Sims and Lowe were

then required, pursuant to an employment agreement with retained counsel, to reimburse counsel for the expenses charged by Smart.

The differences between the claims of the customers, and thus the need for two classes, involve the type of records requested and received by each customer and the amount Smart charged each customer for its services. Childers-Sims requested and received, through her counsel, copies of her medical records and an itemized statement from her medical provider pertaining to her medical treatment. Smart sent invoices reflecting the postage and handling charges to Childers-Sims’s attorney. Her attorney paid the invoices in the ordinary course of business without objection.

Lowe, on the other hand, requested, through counsel, only a copy of her billing record. Smart sent the billing record along with its invoice to Lowe’s attorney. The invoice reflected a flat fee of $15 for the reproduction of one billing record. Lowe’s attorney paid the invoice in the ordinary course of business with no objection.

After extensive and contested discovery, including the production of over 60,000 invoices, the customers submitted evidence that the 18% fee was charged on over 100 invoices and that over 300 invoices reflected overcharges on a per-page basis and/or search-fee basis. A class-certification hearing was held on October 1, 2001. No witnesses testified at the certification hearing. Based upon the parties’ briefs and the arguments at the hearing, the trial court entered an order certifying the two classes on October 9, 2001. The trial court, in its class-certification order, stated:

“There are common questions of law and fact to each class. Each member of the respective classes, either directly or by authorized agent, requested copies of medical records (to include billing), which request was filled by Smart, who, on or after April 25, 1994, charged each class member in excess of the reasonable charges set forth in Ala.Code § 12-21-6.1.
“The Court further finds that the common questions of law and fact common to each class predominate over any questions affecting only individual members:
“(a) as to the 18% flat rate charge for shipping and handling rather than the actual costs of mailing, the issue of liability is common to all class members. Either Smart is liable to each member of the class, or it is hable to none. This is a ‘common thread’ which pervades each class member’s claim[;]
“(b) the same is true for those overcharged for the per page charge or research/retrieval restrictions set forth in the statute. Either Smart is liable to each member of the class, or it is liable to none.”

Childers-Sims seeks to represent a subclass of Alabama residents who were charged in excess of the actual cost of copying and mailing the records; Lowe seeks to represent a second subclass of Alabama residents who were overcharged for the search fee and/or the per-page charge. All claims of the customers are based upon a violation of § 12-21-6.1.

Smart appeals pursuant to § 6-5-642, Ala.Code 1975, authorizing an immediate appeal of a class-certification order. Smart argues that the class-certification order is invalid because, it says, the trial court failed to conduct the rigorous analysis required for class certification and the customers failed to establish the criteria of Rule 23, Ala. R. Civ. P. Smart further argues that the customers’ transactions are outside the scope of § 12-21-6.1, and that, even if they are not outside the scope of § 12-21-6.1, the customers’ claims are barred by the “voluntary-payment” doctrine. Finally, Smart argues that the trial court’s construction of § 12-21-6.1 renders it unconstitutional as applied to Smart.

II. Standard of Review

This Court applies an abuse-of-discretion standard of review to a trial court’s class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class. Compass Bank v. Snow, 823 So.2d 667 (Ala.2001).

If the customers fail to meet the eviden-tiary burden as required by Rule 23, then the order certifying the two classes constitutes an abuse of discretion by the trial court. Compass Bank, 823 So.2d at 672. The customers must establish all of the criteria set forth in Rule 23(a), Ala. R. Civ. P., and one of the criteria set forth in Rule 23(b). Ex parte Gold Kist, Inc., 646 So.2d 1339, 1341 (Ala.1994). Rule 23(a) provides:

“(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

The one additional Rule 23(b) criteria relied upon in the class-certification order states that the customers must prove that common questions of law or fact predominate over individual matters and that the class action is superior to other available methods of litigating the claim. We must determine, therefore, whether the trial court abused its discretion in certifying the classes and whether it applied the correct legal standard in reaching its decision.

III. Smart’s Defenses to Class Certification

Smart argues that certification of the two classes is improper for several reasons. Because we conclude that the proof essential to support the customers’ claims of unjust enrichment, money had and received, and money paid by mistake defeats the predominance and superiority requirements of Rule 23(b)(3), we pretermit a discussion of the other issues raised by Smart.

IV. Satisfaction of Rule 23(b)(3) Criteria

Initially we note that “[i]n order to obtain class certification, the plaintiff[s] must establish all of the criteria set forth in Rule 23(a) and one of the criteria set forth in Rule 23(b).” Ex parte Gold Kist, 646 So.2d at 1341. ' Because we find that the predominance and superiority requirements of Rule 23(b)(3) are lacking, we foreclose any discussion of Rule 23(a).

A. Predominance

The predominance requirement “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). To determine whether common issues of law or fact predominate, the trial court here must examine the customers’ causes of action, considering “what value the resolution of the class-wide issue will have in each class member’s underlying cause of action.” Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1234 (11th Cir.2000).

Therefore, in order to meet the predominance requirement, the' customers here have the burden of presenting sufficient proof that common questions of law or fact predominate over individual claims. § 6-5-641. We have held that the necessity of individualized testimony from each class member to prove ah essential element of the cause of action defeats class certification. Reynolds Metals Co. v. Hill, 825 So.2d 100 (Ala.2002); Compass Bank v. Snow.

The customers argue that Smart violated § 12-21-6.1 by overcharging for mailing costs and the search fees for providing the customers with medical and billing records. In their brief to this Court, the customers assert that their “theories of recovery for the overcharge are simplistic!:] unjust enrichment, money had and received, and money paid by mistake.” The customers contend that the three theories upon which they seek recovery are all essentially based upon the fact that their counsel paid Smart’s invoices by mistake and that they were unaware of all the necessary facts when the payments were made.

The issue whether a payment made by mistake can, as a matter of law, under proper facts, allow recovery under the customers’ equitable claims is a common question of law suitable for class action. This question of law can be answered one time for all members of the class, thus satisfying the Rule 23(b)(3) predominance requirement. However, the issue whether any class member in fact paid Smart by mistake, as the customers contended, presents individual questions of fact. The customers state that the essence of their claims involves proof that Smart “holds money which, in equity and in good conscience, belongs to [the customers] or holds money which was improperly paid to [Smart] because of mistake or fraud.” Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499 So.2d 1385, 1387 (Ala.1986) (final emphasis added).

This case involves money paid to Smart giving rise to the customers’ theories of improper payment. The customers acknowledge that the proof necessary for a recovery, assuming as we must at this stage of the proceeding that the customers correctly read the statute, requires a showing of payment by mistake. The customers state that they “have contended from their initial filing, that payment was made by mistake and contend that they were not in possession of all of the facts necessary for determining how much to pay [Smart] for [its] copying and postage services.” Brief of Customers, p. 22. The customers have the burden of proof as to the evidence of payment under mistake of fact, causing them to pay an amount in excess of what they in fact owed. See Wise, Boles & Bowdoin v. Fuller, 11 Ala. App. 427, 433, 66 So. 827, 829 (1914).

In Compass Bank v. Snow, supra, the plaintiffs sought to certify a class of customers harmed by Compass Bank’s alleged failure to disclose its posting order and the effect that the posting order had on the fees charged for insufficient funds. The plaintiffs alleged fraudulent suppression and breach of contract. Pursuant to Rule 23(b)(3), Compass Bank argued that numerous individual issues predominated over common questions of law or fact, thus making the class unmanageable. We agreed with Compass Bank, and we stated:

“[I]ndividual inquiry will be required to determine at the very least what information, if any, each plaintiff customer received about the posting order, the extent to which each plaintiff customer relied on the Compass defendants’ alleged failure to disclose its policies, and whether and to what extent each plaintiff customer was harmed by the alleged failure to disclose....
“... Thus, for thousands of customers, the trial court would have to inquire how they learned, if indeed they did learn, about the posting order used by the Compass defendants; whether they received a written disclosure and, if so, whether they read it; whether they spoke with a bank representative and, if so, with whom they spoke and the substance of the conversation; whether they were able to determine the posting order used by examining their own bank statements, and, if so, what information and calculations they used to make such a determination.”

823 So.2d at 674 (relying upon Shelley v. Amsouth Bank, (No. CIV.A.97-1170-RVC, July 24, 2000) (S.D.Ala.) (unpublished order), aff'd, 247 F.3d 250 (11th Cir.2001) (table)).

In the present case, Smart has demonstrated that individualized evidence is required to determine whether each class member operated under a mistake of fact. Each class member had a copy of an invoice prepared by Smart, the actual copies of medical records, and the envelope showing the postage paid. Some members may have reviewed their invoices to determine whether the shipping and handling charge was excessive or whether the per-page charges were improper. Others may have analyzed whether Smart charged more for medical records or for billing records. We note that the customers’ billings were received and paid in the first instance by the customers’ legal counsel, thus making an additional line of inquiry as to the customers’ knowledge of factual and legal matters in connection with the customers’ claims. A trier of fact would have to determine whether each individual member of the class paid an invoice from Smart by mistake.

Similar to the extensive inquiry required in Compass Bank, the necessity of conducting such a detañed inquiry into more than 60,000 transactions among numerous class members renders the requirement of predominance impossible. We cannot assume that each class member paid the invoices based upon a mistake of fact. See Ex parte Green Tree Fin. Corp., 723 So.2d 6 (Ala.1998) (vacating a class-certification order, in part, because of individualized proof of subjective factors).

In Reynolds Metals Co. v. Hill, supra, the plaintiffs sought to certify a class of employees who relied upon a manager’s promise of termination benefits. To determine each individual’s reliance in the case, we concluded that “extensive individual examination[s]” would be required. 825 So.2d at 108. Those examinations included a review of each individual’s mental capacity, background, and sophistication. Id.; see also Ex parte Amsouth Bancorporation, 717 So.2d 357 (Ala.1998)(reversing a class-certification order where individual claims of fraud would predominate). We held in Reynolds Metals that individual reliance issues precluded class certification in a case involving claims of fraud, breach of contract, and unjust enrichment. Id.

It is clear here, as it was in Reynolds Metals, that individual inquiry will be required to determine what information, if any, each class member relied upon in paying the invoices for Smart’s services. The customers have “contended from their initial filing, that payment was made by mistake and contend that they were not in possession of all of the facts necessary for determining how much to pay [Smart] for [its] copying and postage services.” Because of the necessity in this case of proving each class member’s subjective state of mind, individual issues predominate over the customers’ claims. The customers cannot prove that each member paid under the same mistake of fact nor can they determine the extent of each class member’s knowledge upon payment of the invoice from Smart. Thus, the customers cannot satisfy their burden of proof as to each member’s payment by mistake without individual inquiries. See Reynolds Metals, 825 So.2d at 105.

We conclude that individual issues of payment by mistake predominate over the claims of unjust enrichment, money had and received, and money paid by mistake. The customers failed to meet their burden of sufficient proof of predominance as required by § 6-5-641.

B. Superiority

Because individual issues predominate over the common claims, manageability difficulties render these claims unfit for class certification. Reynolds Metals, 825 So.2d at 108. The trial court abused its discretion by failing to address the impact of this class-member-specific inquiry. The required inquiry of the subjective factors in each individual transaction in the customers’ equitable claims pretermit class-wide resolution of these disputes.

V. Conclusion

We need not address Smart’s arguments dealing with the merits of the claims and defenses because those issues are not before us at this stage of the proceedings. With regard to the issue before us, we conclude that the trial court erred in certifying the two classes in this case. We vacate the class-certification order and remand the cause for further proceedings consistent with this opinion.

ORDER VACATED; CAUSE REMANDED.

MOORE, C.J., and HOUSTON, JOHNSTONE, and STUART, JJ., concur.

WOODALL, J., recuses himself.

      . Smart’s procedures are now automated. For purposes of the transactions at issue here, the procedure discussed above applies.

      . The statute provides that "any person required to release copies of medical records may condition the release upon payment by the requesting party of the reasonable costs of reproducing the medical records.” The statute further provides that the reasonable costs for the reproduction of reports "shall not be more than one dollar ($1) for each page of the first 25 pages, not more that 50 cents ($.50) for each page in excess of 25 pages, and a search fee of five dollars ($5).” § 12-21-6.1(b)(1) and (2).

      . We cannot determine from the record Smart's state of incorporation. Smart's principal place of business is Torrence, California. It has employees located in this State who work in Shelby County.

      . A legal issue exists in this case as to whether the term "medical records” includes both medical records and billing records.

      . Smart charged on invoice no. M4692833 for 17 pages of medical records, a postage charge of $3.06 (18% of the $17.00 copy charge, calculated at a dollar per- page). The $17.00 charge does not include a $5.00 search fee (see note 2).
      Smart charged on invoice no. H152084 for four pages of medical records, a postage charge of $1.62 (18% of the $9.00 copy charge, calculated at a dollar per page plus what is referred to on this invoice as a $5.00 "basic” fee).

      . The specific records Lowe requested are in dispute. In the first request letter, Lowe's attorney requested both medical records and billing records. However, in a second request letter, Lowe’s attorney requested only a billing record. Regardless of what documents were requested, it is undisputed that Lowe received only a billing record from Smart.

      . See Boykin v. Smart Corp., 669 So.2d 939 (Ala.Civ.App.1995), where a class action alleging excessive charges by Smart was certified, yet the Alabama Court of Civil Appeals affirmed a summary judgment for Smart based on the fact that the invoices were paid without objection.

      . Because the Alabama Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure, cases construing the federal rules are authoritative in construing Alabama rules. Cutler v. Orkin Exterminating Co., 770 So.2d 67, 70 n. 2 (Ala.2000).

      . The customers' complaint does not contain a fraud allegation.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    SECURITIES AMERICA, INC. v. Charles P. ROGERS et al.
    1011189.
    Supreme Court of Alabama.
    Nov. 8, 2002.
    Rehearing Denied Feb. 7, 2003.

      W. Stancil Starnes and Bryan 0. Balogh of Starnes & Atchison, L.L.P., Birmingham; and Robert R. Ambler, Jr., Rebecca L. Burnaugh, and Todd Ratner of Sutherland, Asbill & Brennan, L.L.P., Atlanta, Georgia, for appellant.
    Alan T. Rogers, Kimberly T. Powell, and Allen M. Estes of Balch & Bingham, L.L.P., Birmingham, for appellee.

      . "The term 'ponzi scheme’ refers to an investment scheme whereby returns to investors are financed, not through the success of an underlying business venture, but from the principal sums of newly attracted investors. ... Initial investors are actually paid the promised returns, attracting additional investors.” In re Primeline Sec. Corp., 295 F.3d 1100, 1104 n. 2 (10th Cir.2002).

   WOODALL, Justice.

Securities America, Inc. (“SAI”), a defendant in an action pending in the Jefferson Circuit Court, appeals from the trial court’s order denying its motion to compel arbitration of the claims made against it by the plaintiffs. We affirm.

I.

SAI is a securities broker-dealer registered with the United States Securities and Exchange Commission and is a member of the National Association of Securities Dealers. SAI offers securities to the public through a nationwide network of registered representatives. SAI is registered under the laws of Alabama to offer and sell securities.

The 10 plaintiffs — Charles P. Rogers, Margaret Rogers, M. Khris McAister, Robert F. McCullough, William S. Ring-land, Adrian Ringland, Jr., Adrian Ring-land III, Bertha Ringland, George Edwards, and John Taliaferro — allege that “[t]his is a case about the criminal actions of a con artist ... who assumed his college roommate’s identity and stole over $1 million from the ten individual plaintiffs.” Brief of Appellees, at 4. That alleged “con artist” is Scott Wolas, who, using the name of Alen Lee Hengst, his college roommate, became a registered representative of SAI, opened a branch office in Orlando, Florida, and obtained an Aabama securities license under that assumed name.

■The plaintiffs allege that acting “[o]n behalf of SAI and in violation of the Aa-bama Securities Act, Wolas (masquerading [as] Alen Hengst) enticed each of [them] into investing in securities approved and supported by SAI.” Brief of Appellees, at 6. Further, they allege that they “lost substantial amounts of [money] as a result of the negligent, wanton and fraudulent acts of Wolas and SAI.” Brief of Appellees, at 7.

SAI contends that “[plaintiffs’ claims stem solely from alleged losses arising from their dealings in bogus gold certificates with [Wolas, masquerading as Hengst], a registered representative of ... SAI.” Brief of Appellant, at 7. Further, SAI states that, “unbeknownst to [it], [Wo-las, masquerading as Hengst,] had been operating a Ponzi scheme[] selling ‘gold certificates’ prior to his affiliation with ... SAI and apparently continued to do so after he became registered with the firm.” Brief of Appellant, at 9.

Five of the plaintiffs — M. Khris McA-ister, Robert F. McCullough, Charles P. Rogers, Margaret Rogers, and William S. Ringland (the “nonsignatory plaintiffs”)— never opened an account with SAI and, therefore, never signed any agreement with SAI. On the other hand, the other five plaintiffs — Adrian Ringland, Jr., Adrian Ringland III, Bertha Ringland, George Edwards, and John Taliaferro (the “signatory plaintiffs”) — opened brokerage accounts with SAI, signing and receiving documents concerning those accounts. The documents were presented to the signatory plaintiffs by Wolas, who signed the documents as SAI’s registered representative, using the name “Alen Hengst.”

Each signatory plaintiff signed a new account application, which contains the following language directly above the client-signature line:

“I HEREBY ACKNOWLEDGE THAT I AM IN RECEIPT AND HAVE READ, UNDERSTOOD AND AGREED TO THE TERMS SET FORTH IN THE SAI CLIENT AGREEMENT AND THAT THIS ACCOUNT IS GOVERNED BY A PRE-DISPUTE ARBITRATION AGREEMENT WHICH I HAVE READ AND UNDERSTAND.”

(Capitalization in original.) Additionally, George Edwards and John Taliaferro opened retirement accounts with SAI, signing applications that contain the following language directly above the customer-signature line:

“I REPRESENT THAT I HAVE READ THE CUSTOMER AGREEMENT GOVERNING THIS ACCOUNT AND AGREE TO BE BOUND BY SUCH CUSTOMER ' AGREEMENT AS CURRENTLY IN EFFECT AND AS MAY BE AMENDED FROM TIME TO TIME. THIS ACCOUNT IS GOVERNED BY A PRE-DISPUTE ARBITRATION AGREEMENT .... I ACKNOWLEDGE RECEIPT OF THE PRE-DISPUTE ARBITRATION AGREEMENT.”

(Capitalization in original.)

All the signatory plaintiffs established their accounts as option accounts, which required them to execute option-account agreements. Those agreements contain the following language directly above the customer-signature line:

“I REPRESENT THAT I HAVE READ THE TERMS AND CONDITIONS GOVERNING THIS ACCOUNT AND AGREE TO BE BOUND BY SUCH TERMS AND CONDITIONS AS CURRENTLY IN EFFECT AND AS MAY BE AMENDED FROM TIME TO TIME. THIS ACCOUNT IS GOVERNED BY A PRE-DISPUTE ARBITRATION AGREEMENT .... I ACKNOWLEDGE RECEIPT OF THE PRE-DISPUTE ARBITRATION AGREEMENT.”

(Capitalization in original.)

The predispute arbitration agreement contained in the SAI customer agreement, which agreement is referenced in the separate agreements executed by all the signatory plaintiffs, provides in pertinent part:

“I AGREE THAT ALL CONTROVERSIES THAT MAY ARISE BETWEEN US CONCERNING ANY ORDER OR TRANSACTION, OR THE CONTINUATION, PERFORMANCE OR BREACH OF THIS OR ANY OTHER AGREEMENT BETWEEN US, WHETHER ENTERED INTO BEFORE, ON, OR AFTER THE DATE THIS ACCOUNT IS OPENED, SHALL BE DETERMINED BY ARBITRATION BEFORE A PANEL OF INDEPENDENT ARBITRATORS SET UP BY EITHER THE NEW YORK STOCK EXCHANGE, INC., OR NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., AS I MAY DESIGNATE.”

(Capitalization in original.)

II.

On October 19, 2001, the plaintiffs sued SAI and Wolas, alleging that the “action arises out of [their] financial investments ... made through SAI’s agent, principal and employee — the so-called ‘Allen Lee Hengst’ — the most recent alias of Scott J. McKay Wolas.” Seeking both compensatory and punitive damages, the complaint asserted claims of fraudulent misrepresentation and deceit; fraudulent suppression and concealment; negligent or wanton hiring, training, and supervision; breach of fiduciary duty; violation of § 8-6-17, Ala. Code 1975; and violation of §§ 8-6-3 and -4, Ala.Code 1975.

On December 13, 2001, SAI answered the complaint. It asserted as a defense that “[p]laintiffs’ claims are subject to mandatory arbitration agreements.” On that same date, SAI filed a motion to dismiss, or, alternatively, to stay the proceedings and compel arbitration. SAI attached to that motion the affidavit of Kevin Zemann, its director of regional supervision, to which were attached copies of those documents signed and/or received by the signatory plaintiffs.

On December 19, 2001, SAI filed a brief in support of its motion to compel arbitration. The brief was accompanied by the affidavit of Lamar S. Jones, SAI’s vice president and chief operations officer. That affidavit described the interstate nature of SAI’s business, as well as the interstate aspects of a sale-of-securities transaction.

On January 30, 2002, the plaintiffs filed a brief in opposition to SAI’s motion to compel arbitration. On February 1, 2002, the trial court denied SAI’s motion. SAI appealed.

III.

This Court recently reiterated the standard of review of a denial of a motion to compel arbitration:

“ ‘This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999); Sisters of the Visitation v. Cochran, 775 So.2d 759 (Ala.2000). “[A]fter a motion to compel arbitration has been made and supported, the burden is on the nonmovant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (opinion on application for rehearing)(Ala.1995).’ ”

SouthTrust Bank v. Ford, 835 So.2d 990, 993 (Ala.2002)(quoting American Gen. Fin., Inc. v. Morton, 812 So.2d 282, 284 (Ala.2001)).

As previously discussed, the signatory plaintiffs had entered into written agreements with SAI, while the nonsignatory plaintiffs had not. Therefore, the controlling principles must be applied separately to each group of plaintiffs.

IV.

The trial court refused to compel the nonsignatory plaintiffs to arbitrate their claims against SAL On appeal, SAI argues that although “[t]he non-signatory plaintiffs are complete strangers to [it],” they “should be required to arbitrate their claims just like any other SAI ‘customer.’ ” Brief of Appellant, at 30. SAI’s argument has no merit.

SAI, as the party seeking to compel arbitration, had the initial burden of proving the existence of a contract calling for arbitration of the claims of the nonsig-natory plaintiffs. That threshold burden is imposed upon the party seeking to compel arbitration because “ ‘ “a party cannot be required to submit to arbitration any dispute he has not agreed to submit.” ’ ” Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001)(quoting Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Ala.1994), quoting in turn A.G. Edwards & Sons, Inc. v. Clark, 558 So.2d 358, 362 (Ala.1990)). SAI provided no evidence of any contract by which any nonsignatory plaintiff agreed to submit any dispute to arbitration.

SAI argues that the nonsignatory plaintiffs should be compelled to arbitrate their disputes, because, SAI alleges, “the non-signatory plaintiffs are attempting to avail themselves of the benefits of [the SAI customer agreement].” Brief of Appellant, at 31. The nonsignatory plaintiffs respond that their claims are not based upon SAI’s customer agreement and that they “do not allege breach of contract.” Brief of Appel-lees, at 27. Our review of the complaint indicates that the plaintiffs are not attempting “to enforce selectively the provisions of ... SAI’s customer agreement,” as alleged by SAI. Brief of Appellant, at 31. Without addressing the legal merits, if any, of SAI’s argument, we conclude that the argument must fail, because of a total absence of factual support.

The trial court did not err in refusing to compel the arbitration of the claims of the nonsignatory plaintiffs. Therefore, to that extent, its order denying SAI’s motion to compel arbitration must be affirmed.

V.

When SAI moved to compel arbitration of their claims, the signatory plaintiffs did not dispute the existence of contracts calling for arbitration, which contracts evidence transactions substantially affecting interstate commerce. Therefore, the burden shifted to the signatory plaintiffs to present evidence indicating that the arbitration agreements are not valid or that they do not apply to the disputes in question. While the signatory plaintiffs did not dispute the applicability of the agreements, they did contend that the agreements are not valid or enforceable.

In Alabama Catalog Sales v. Harris, 794 So.2d 312, 315 (Ala.2000), “[t]he ultimate issue ... [was] whether the trial court, or an arbitrator, determines the validity of a contract that contains a provision requiring that all claims arising therefrom be arbitrated.” (Footnote omitted.) This Court held that “the trial court, as opposed to the arbitrator, must decide the ultimate question relating to the legality and enforceability of the contracts.” 794 So.2d at 317. Thus, it was appropriate for the trial court, as it is for this Court, to address the enforceability by SAI of the SAI customer agreements.

The parties agree that SAI and its registered representatives are subject to the Alabama Securities Act, codified at § 8-6-1 et seq., Ala.Code 1975 (“the Act”). The purpose of the Act is to protect the public from fraudulent, dishonest, or unethical practices in the securities business. See Comment to § 8-6-3, Ala.Code 1975. “Statutes intended for the public benefit are to be construed most favorably to the public. Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970).” St. Paul Fire & Marine Ins. Co. v. Elliott, 545 So.2d 760, 762 (Ala.1989).

The Act requires that every person engaged in the business of effecting transactions in securities in Alabama be registered with the Alabama Securities Commission (“the Commission”). See, generally, § 8-6-3. Specifically, § 8-6-3(a) provides: “It is unlawful for any person to transact business in this state as a dealer or agent for securities unless he is registered under this article. It is unlawful for any dealer or issuer to employ an agent unless the agent is registered.” There is ho evidence indicating that Scott Wolas was registered to sell securities in Alabama. Instead, it is undisputed that, because of Wolas’s dishonesty, the Commission registered Allen Hengst, who had no knowledge that Wolas had assumed his identity for that purpose. Therefore, we must conclude that Wolas and SAI violated § 8-6-3(a).

The signatory plaintiffs argue that the SAI customer agreements containing the arbitration provision cannot be enforced, because, they argue, the Act “prohibits enforcement of contracts made in violation of its provisions.” Brief of Appel-lees, at 9. SAI responds that the Act “offers no impediment to the enforcement of the arbitration agreements,” because “SAI did not know that [Wolas, masquerading as Hengst,] was anyone other than who he purported to be.” Reply Brief of Appellant, at 5. Our analysis of § 8 — 6—19(g), Ala.Code 1975, resolves this issue in favor of the signatory plaintiffs.

Section 8-6-19(g) provides, in pertinent part:

“(g) No person who has made or engaged in the performance of any contract in violation of any provision of this article ... or who has acquired any purported right under such contract with knowledge of the facts by reason of which its making or performance was in violation, may base any action on the contract.”

(Emphasis added.)

As previously stated, we must construe this statute most favorably to the public, including the signatory plaintiffs. Therefore, we read it as stating, in relevant part, that “no person who has made or engaged in the performance of any contract in violation of any provision of the Act may base any action on the contract.” Therefore, SAI is not entitled to enforce the arbitration provision in its customer agreements.

As previously discussed, SAI contends that it is entitled to enforce the arbitration agreements because it had no knowledge of any violation of the Act. SAI’s argument is based on the knowledge requirement in § 8-6-19(g), emphasized in our quotation of that provision. SAI would have us construe the statute to mean, in relevant part, that “no person who has made or engaged in the performance of any contract in violation of any provision of the Act, with knowledge of the facts by reason of which its making or performance was in violation, may base any action on the contract.” However, not only does such a construction fail to construe the statute in favor of the public, it also fails to consider another relevant rule of statutory construction.

In White v. Knight, 424 So.2d 566, 567-68 (Ala.1982), this Court discussed the “doctrine of last antecedent”:

“[PJlaintiff argues that the language [of the Code section] is ambiguous, and being so dictates the use of the ‘doctrine of last antecedent’ in discovering its meaning:
“ ‘By what is known as the doctrine of the “last antecedent,” relative and qualifying words, phrases, and clauses, are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote;
citing 82 C.J.S. Statutes § 334 (1953).
“We appreciate the application of this general rule of statutory construction; however, we also note from the cited section that the doctrine is only an aid to construction and ‘will not be adhered to where extension to a more remote antecedent is clearly required by a consideration of the entire act. ... Where several words are followed by a clause as much applicable to the first and other words as to the last, the clause should be read as applicable to all.’ Ibid. See also 2A Sutherland Statutory Construction § 47.33 (Sands 4th ed.1973).”

The antecedent immediately preceding the phrase containing the knowledge requirement is a “person ... who has acquired any purported right under any ... contract [in violation of any provision of the Act].” Construing the statute in favor of the public, we see no reason to apply the knowledge requirement to the more remote antecedent, that is, to a “person who has made or engaged in the performance of any contract in violation of any provision of [the Act].”

The violations of the Alabama Securities Act rendered the SAI customer agree-merits unenforceable by SAI. Therefore, SAI is not entitled to seek arbitration under the provisions of those agreements, and the trial court did not err in denying SAI’s motion to compel the signatory plaintiffs to arbitrate their claims.

VI.

For the reasons stated above, the order of the trial court is affirmed.

AFFIRMED.

HOUSTON, LYONS, BROWN, JOHNSTONE, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

HARWOOD, J., recuses himself.

      . The Act defines "agent” as "[a]ny individual other than a dealer who represents a dealer or issuer in effecting or attempting to effect sales of securities .... ” § 8-6-2(2), Ala.Code 1975.


author: PATTERSON, Retired Appellate Judge. SHAW, Judge,

text:
    Deborah Brown KIRKLAND v. STATE.
    CR-00-2494.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Edward S. Stoffregen III, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   PATTERSON, Retired Appellate Judge.

The appellant, Deborah Brown Kirkland, was indicted for unlawfully selling a controlled substance, marijuana, a violation of § 13A-12-211, Ala.Code 1975. A jury found the appellant guilty of the offense, as charged in the indictment. The trial court sentenced her, as a habitual felony offender with two prior felony convictions, to 15 years’ imprisonment and, pursuant to the jury’s specific findings, added the mandatory five-year enhancements of §§ 13A-12-250 and -270, resulting in the imposition of a 25-year sentence. The record indicates that the trial court suspended the 15-year portion of the 25-year sentence pursuant to the Split Sentence Act, § 15-18-8.

The trial court incorrectly concluded that, because the appellant was subject to three separate sentencing provisions (§§ 13A-5-9, 13A-12-250, and 13A-12-270), the appellant had three separate sentences of 15 years’ imprisonment, 5 years’ imprisonment, and 5 years’ imprisonment. However, “[t]his Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270 ... as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.” State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001). See, e.g., Hardy v. State, 576 So.2d 685, 688 (Ala.Crim.App. 1991) (“Section 13A-12-250 works in concert with §§ 13A-12-211 and 13A-5-6 and effectively imposes only a single punishment for a single offense.”).

Thus, the appellant’s sentence is a single sentence of 25 years’ imprisonment. Because her sentence is over 20 years’ imprisonment, no portion of it can be suspended pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975 (Supp.2001). Accordingly, this case must be remanded for the trial court to impose a legal sentence, the minimum of which can be no less than 25 years’ imprisonment.

On remand, the trial court is also to apply the mandatory assessments applicable to a conviction, pursuant to § 13A-12-211, for unlawful selling a controlled substance. Section 13A-12-281, a part of the Demand Reduction Assessment Act, mandates that a defendant convicted of violating § 13A-12-211 “shall be assessed ... an additional penalty fixed at $1,000 for first offenders and $2,000 for second and subsequent offenders.” Section 36-18-7(a), a part of the act creating the Alabama Forensic Services Trust Fund, mandates, for a person convicted under § 13A-12-211, that “there shall be imposed or assessed an additional fee of one hundred dollars ($100).” Finally, pursuant to § 15-23-17, the Alabama Crime Victims Compensation Act, the appellant should be assessed not less than $50 or more than $10,000 for her felony conviction.

The trial court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days of the release of this opinion. The return to remand shall include a transcript of the resentencing proceedings conducted by the trial court.

In a separate unpublished memorandum, we are today affirming the appellant’s conviction. We find that her sole issue of the sufficiency of the evidence does not warrant discussion in this opinion.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

AFFIRMED BY UNPUBLISHED MEMORANDUM AS TO CONVICTION; REMANDED FOR RESEN-TENCING.

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

SHAW, J., dissents, with opinion, which COBB, J., joins.

SHAW, Judge,

dissenting.

The trial court erred when it permitted the State to amend the indictment to include the enhancement under the provisions in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, because the amendment resulted in Kirkland's being charged with a greater offense. See Rule 13.5(a), Ala. R.Crim.P. Therefore, I would reverse Kirkland’s conviction and sentence. See my special writing in Poole v. State, 846 So.2d 370, 389 (Ala.Crim.App.2001) (Shaw, J., concurring in the result).

      . The original indictment had been amended on motion of the prosecution to allege also that the stile occurred within three miles of an educational institution and within three miles of a public housing project, see §§ 13A-12-250 and -270, Ala.Code 1975, respectively.

      . Section 2 of Act No. 2000-759, Ala. Acts 2000 (effective May 25, 2000), amended the pertinent part of § 15-18-8(1) to increase the maximum sentence subject to being split from 15 years' imprisonment to 20 years' imprisonment. Section 3 of the Act (which was not codified, but was noted in Code Commissioner's Notes following § 15-18-8 in Supp.2001) states, in part, that the provisions of Section 2 "shall be applied prospectively only and shall apply only to any case in which the sentence is not final at the trial court on the effective date of this act." (Emphasis added.) The appellant was sentenced on August 14, 2001; therefore, the amended version of § 15-18-8 applies.


author: COBB, Judge.

text:
    Jaycee BROWN, Jr. v. STATE of Alabama.
    CR-00-2390.
    Court of Criminal Appeals of Alabama.
    March 22, 2002.

      Mariellen Morris, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.
   COBB, Judge.

On March 11, 1999, Jaycee Brown, Jr., was convicted of third-degree burglary, first-degree theft of property, two counts of first-degree robbery, and second-degree receiving stolen property. On April 12, 1999, the trial court sentenced him to serve concurrent prison terms of 5 years, 5 years, 20 years and 22 years, and 3 years, respectively. Brown did not appeal his convictions or sentences.

On November 16, 2000, Brown, acting pro se, filed a Rule 32, Ala. R.Crim. P., petition. Two months later, he filed a motion for an evidentiary hearing. On March 2, 2001, the circuit court, which evidently had no record of Brown’s ever having filed a Rule 32 petition, denied the evidentiary hearing.

On April 20, 2001, Brown, through counsel, filed the present Rule 32 petition and attached a copy of the petition he alleges was filed in November 2000. After the State had responded, the circuit court summarily denied the petition. This appeal followed.

In his petition, Brown raised the following claims: 1) that he is entitled to an out-of-time appeal because his failure to appeal was the fault of his trial counsel; 2) that trial counsel rendered • ineffective assistance when he failed to file an appeal of Brown’s convictions and sentences; 3) that trial counsel rendered ineffective assistance when he allowed Brown to testify against Brown’s parents’ wishes; 4) that trial counsel rendered ineffective assistance when he failed to request a mental evaluation; 5) that he was denied substantive and procedural due process because the trial court failed to hold a hearing to determine whether he was competent to stand trial; 6) that he was incompetent to stand trial; and 7) that the trial court erroneously allowed his confession to be admitted in that the statement was not knowingly and voluntarily made because he did not have the mental capacity to waive his Miranda rights. Brown filed a substantial amount of evidence in support of his claims, including affidavits, school records, presentence reports, and his trial transcript.

In denying the petition, the circuit court found:

“The Court[,] having reviewed the Petition for Relief from conviction or sentence (Rule 32 Ala.R.Crim.P.) or words of the same effect, and response thereto provided by the District Attorney’s office on behalf of the [S]tate of Alabama, finds that the petition is without merit. The petition is therefore denied and dismissed.”

(R. 64, 85,136,161,185.)

On appeal, Brown claims that the circuit court erred by summarily denying his petition and by failing to “set forth with specificity its ground[s] for such denial.” (Appellant’s brief, p. 9.) The State agrees that this cause “is due to be remanded so that the trial court can enter an order in compliance with Rule 32.9(d).... ” (Appellee’s brief, p. 2.)

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

Rule 32.7(d), Ala. R.Crim. P., provides for the summary disposition of a Rule 32 petition only

“[i]f the court determines that the petition is not sufficiently specific [in violation of Rule 32.6(b)], or is precluded [under Rule 32.2], 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 further proceedings .... ”

The circuit court properly summarily disposed of Brown’s claim that trial counsel rendered ineffective assistance when he allowed Brown to testify against Brown’s parents’ wishes. The record reveals that trial counsel made it a point to explain Brown’s Fifth Amendment rights both to Brown and to his parents. After that lengthy explanation, Brown chose to testify. Whether Brown’s parents wanted Brown to testify is not the relevant inquiry; whether Brown himself wanted to testify is the issue. Brown chose to testify, and nothing in the record indicates that he was forced or coerced into testifying. Because this contention fails to state a claim upon which relief could be granted, summary disposition was appropriate. Rule 32.7(d).

Brown’s claim that his confession was involuntary is precluded because Brown could have, but did not, raise it at trial or on appeal. Rule 32.2(a)(8) and (5), Ala. R.Crim. P. See McNair v. State, 706 So.2d 828, 849 (Ala.Crim.App.1997). Because this claim is precluded, the circuit court correctly summarily disposed of it. Rule 32.7(d).

However, the following claims create material issues of fact or law that would entitle Brown to relief if his allegations are, in fact, true:

1) That Brown’s failure to appeal was the fault of his trial counsel;
2) That Brown’s trial counsel rendered ineffective assistance when he failed to appeal Brown’s convictions and sentences; and
3) That trial counsel rendered ineffective assistance when he failed to move for a mental evaluation of Brown.

Moreover, in determining Brown’s claim that his trial counsel was deficient in failing to move for a mental evaluation, the circuit court necessarily will decide Brown’s claims that he was mentally incompetent to stand trial and that the trial court should have held a hearing to determine his competency to stand trial.

Therefore, summary disposition of the claims listed in the paragraph above was in error, and we remand this cause to the circuit court for that court to address those claims. The circuit court shall either conduct an evidentiary hearing addressing those claims that are facially meritorious and make specific findings of fact, Rule 32.9(a) and (d), Ala. R.Crim. P.; “take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentia-ry hearing” and make specific findings of fact, Rule 32.9(a) and (d); or, if the circuit judge has “ ‘personal knowledge of the actual facts underlying the allegations in the petition,’ ” she may summarily deny the petition, but she nonetheless must state her reasons for the denial in a written order, Monroe v. State, 659 So.2d 975, 977 (Ala.Crim.App.1994) (quoting Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App. 1989)). Due return shall be made to this Court within 42 days of the date this opinion is issued.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in the result.

      . The circuit court’s entry on the case action summary sheet read, "The court finds that no Rule 32 petition has been filed. Motion for Relief is not appropriate as no pleading exists.” (C.R. 63.)

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . On appeal, Brown also attempts to couch some of the substantive claims in his petition in terms of “newly discovered evidence.” See Rule 32.1(e), Ala. R.Crim. P. However, he did not present to the circuit court any claims regarding newly discovered evidence; therefore, he has not preserved this particular claim for appellate review. Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997) ("An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.”).


author:
      QUINCE, J. PARIENTE, J.,
      HARDING, Senior Justice,

text:
    Columbus Rickey ASHLEY, Petitioner, v. STATE of Florida, Respondent.
    No. SC00-2586.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Respondent.
   QUINCE, J.

We have for review Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000), which expressly and directly conflicts with the decision in Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we approve the decision in Evans and quash the decision in Ashley.

The issue in these two cases concerns whether a trial court can bring a defendant back to court, vacate the sentence imposed, and resentence him to what amounts to a more onerous sentence after he has begun serving the original sentence, without violating the double jeopardy clause. The facts of Ashley are as follows. Columbus Ashley was charged with possession of a firearm by a convicted felon. Prior to trial, the State filed a notice of intent to classify Ashley as a habitual violent felony offender (HVFO) based on a previous robbery conviction. At trial, the jury found Ashley guilty as charged on the possession offense.

Ashley’s status as a possible habitual violent felony offender was argued to the trial judge by the prosecutor. The trial judge was presented with Ashley’s criminal history, and aggravating and mitigating circumstances were discussed. Defense counsel acknowledged that Ashley had two prior felony convictions: robbery and possession of cocaine. An argument was made to the trial court that it had discretion in whether to find and sentence Ashley as a habitual violent felony offender. At no time during this hearing on July 8,1999, or the actual sentencing on July 9, 1999, did the trial court pronounce Ashley a habitual violent felony offender.

At the sentencing hearing on July 9, 1999, the trial court again indicated the factors that supported aggravation and those in support of mitigation. The court then orally sentenced Ashley as a habitual felony offender (HFO), and sentenced him to twenty-five years in prison. The prosecutor was present and did not bring to the court’s attention any failure to find Ashley a habitual violent felony offender. The only issues addressed by the State at this point were restitution and a nolle pros of the remaining counts. The final statement made by the trial judge was, “Take Mr. Ashley back to begin his sentence.”

However, the written judgment and sentence indicated that Ashley had been sentenced as an HVFO to twenty-five years in prison with no minimum term noted on the written sentencing form. On July 12, 1999, Ashley reappeared in court, and the trial judge orally resentenced him to twenty-five years in prison as an HVFO, and for the first time imposed a ten-year minimum mandatory term. The July 12 written sentencing order was consistent with the court’s July 12 oral pronouncement.

Ashley filed a timely notice of appeal on July 15, 1999. After notice was given, but before the initial brief was filed, Ashley filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging that the resen-tencing on July 12, 1999, constituted a double jeopardy violation. The trial court did not rule on the motion; therefore, it was deemed denied. Ashley raised the double jeopardy claim on his direct appeal. See Ashley v. State, 772 So.2d 42 (Fla. 1st DCA 2000). The First District rejected this claim, finding that the trial court’s imposition of an HFO sentence “was the result of a simple mistake about what had been noticed and then proven the day before. It was not a discretionary judgment based on the facts to impose a lighter sentence.” Id. at 43.

The First District’s holding in Ashley is in conflict with the Fourth District’s holding in Evans. In Evans, the defendant pled and was adjudicated guilty for possession of cocaine and aggravated battery. As part of the plea agreement, Evans agreed that he qualified as an HFO, and that he would be sentenced as an HFO if he violated probation. Evans violated his probation and was sentenced to prison time as an HFO. The sentences were suspended, and Evans was given probation; however, the judgment of HFO status was never set aside. As a result, and by agreement of the parties, the court vacated the suspended sentences, allowing Evans to be resentenced on his initial violation of probation. At resentencing, the trial court did not state that Evans was being sentenced as an HFO; however, the written order did reflect that he was being habitu-alized. Two days later, the State filed a motion to clarify the sentence because the commitments prepared by the court clerk did not reflect habitualization. Evans objected on grounds of double jeopardy, recalling that the court’s oral pronouncement did not mention habitualization. The trial court then ordered that the commitments be amended to reflect habitualization.

On appeal, the Fourth District recognized that the trial court’s failure to impose habitualization during oral pronouncement may have been an oversight. Nevertheless, the Fourth District found the trial court’s clarification to be in error, holding that once a legal sentence is imposed, jeopardy attaches and the defendant cannot be resentenced to a greater term of imprisonment.

We agree with the reasoning of the Fourth District. Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. See, e.g., Lippman v. State, 633 So.2d 1061 (Fla.1994); Clark v. State, 579 So.2d 109 (Fla.1991); N.H. v. State, 723 So.2d 889 (Fla. 5th DCA 1998). To do so is a clear violation of the Double Jeopardy Clause, which prohibits multiple punishment for the same offense. See State v. Wilson, 680 So.2d 411, 413 (Fla.1996). Here, the trial court brought Ashley back to court and resentenced him to a more onerous sentence after he had begun serving the original sentence. The trial court’s actions violated Ashley’s constitutional right against double jeopardy.

This Court has previously found that Florida’s sentencing procedures prevent subsequent imposition of new terms to a previously announced sentence. For example, in Justice v. State, 674 So.2d 123 (Fla.1996), the defendant was found guilty of two counts of forgery and placed on probation, subject to three conditions. However, the trial court entered a written judgment which contained numerous probation conditions not orally pronounced at sentencing. On appeal, the Fifth District remanded the case to the trial court to resolve the discrepancy between the probation conditions imposed at sentencing and those contained in the written order. Although the Fifth District held that the trial court could reimpose the unannounced conditions at resentencing, it certified the issue to this Court as a question of great public importance.

Upon review, this Court held that special conditions of probation must be imposed at sentencing and may not be reimposed at resentencing. This Court based its decision in part “on a judicial policy that the actual oral imposition of sanctions should prevail over any subsequent written order to the contrary.” Id. at 125. This Court further noted that written sentences are usually just a record of the actual sentence required to be pronounced in open court. Thus, when conflict arises between the written sentence and the oral pronouncement, the oral pronouncement prevails.

This Court further noted that the subsequent imposition of new conditions or terms to a sentence or order of probation violates the constitutional protection against double jeopardy. Adopting the reasoning of the dissent in the Fifth District’s opinion, this Court opined:

An order of probation, like any other aspect of sentencing, ought not to be a work in progress that the trial court can add to or subtract from at will so long as he or she brings the defendant back in and informs the defendant of the changes. To permit this would mean a lack of finality for no good reason and multiple appeals. It is not too much to ask of a sentencing judge to decide on and recite the special conditions of probation at the sentencing hearing, just as is done with the balance of the sentence. If the court has omitted a condition it wishes it had imposed, its chance has passed unless the defendant violates probation.

Id. at 126 (quoting Justice v. State, 658 So.2d 1028, 1035-36 (Fla. 5th DCA 1995) (Griffin, J., dissenting)). We also find this reasoning persuasive. Our decision today is consistent with this reasoning and with our earlier precedent.

Additionally, the First District’s decision in this case conflicts with a longstanding principle of law — that a court’s oral pronouncement of sentence controls over the written document. See, e.g., State v. Jones, 753 So.2d 1276, 1277 (Fla.2000); State v. Williams, 712 So.2d 762 (Fla.1998); Justice, 674 So.2d at 126; Driver v. State, 710 So.2d 652, 653 (Fla. 2d DCA 1998). Generally, the oral pronouncement prevails unless the oral pronouncement is in error due to a clerical error such as the calculation of jail credit. See Martindale v. State, 678 So.2d 883, 884 (Fla. 4th DCA 1996).

We recognize that the trial court’s failure to state during its oral pronouncement of sentence that it was sentencing Ashley as a habitual violent felony offender may have been a simple mistake. However, based on the prior precedent from this Court, we must approve the Fourth District’s opinion in Evans and disapprove the First District’s decision in Ashley, because the oral pronouncement of sentencing controls. To hold otherwise does serious harm to the double jeopardy principles which have guided our courts for centuries. Thus, we quash the decision under review and remand for proceedings consistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and PARIENTE, J., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

HARDING, Senior Justice, dissents with an opinion, in which WELLS and LEWIS, JJ., concur.

PARIENTE, J.,

concurring.

I concur fully in the majority opinion upon rehearing, although I have struggled with the competing policies represented by the majority opinion and the dissent. I write separately to address the concerns expressed in the dissenting opinion and why I felt compelled to join in this majority opinion.

When I concurred in the original majority opinion, I did so based on the notion that the Court could characterize what occurred in this case as a “scrivener’s error.” However, I now recognize that an error in an oral pronouncement cannot be properly labelled as “scrivener’s error.” My overriding concern is that for the Court to endorse an exception that allows a trial court to “correct a mistake or misstatement during the oral pronouncement,” as suggested by the dissent would run contrary to the constitutional principles of double jeopardy.

The law is clear that Ashley began serving his sentence upon conclusion of the hearing in which the court made its oral pronouncement. Troupe v. Rowe, 283 So.2d 857 (Fla.1973), is not easily distinguishable on this basis. Here, as in Troupe, jeopardy attached at the conclusion of the sentencing hearing in which the court pronounced sentence.

I simply cannot find room in our double jeopardy precedent for a “simple misstatement” exception. While in some cases, the possibility that the pronouncement contained a “mistake” or “misstatement” may be apparent, in other cases it may not be possible from the face of the record to discern if the trial judge’s pronouncement was a “misstatement” or a change in the sentence upon further reflection.

Contrary to the dissent’s suggestion, today’s ruling does not result in “immunity,” as the term has been used in pertinent United States Supreme Court precedent. In United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), the Court eschewed the notion that “sentencing should be a game in which a wrong move by the judge means immunity for the prisoner” in holding that a federal statute authorizing a government appeal from a sentence did not violate double jeopardy. In Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 91 L.Ed. 818 (1947), whence this quote originates, the Court held that the trial court could lawfully correct its error in failing to impose a mandatory fine.

In comparison, this case does not involve the State’s right to appeal a sentence, and imposition of the mandatory minimum term on a habitual offender is discretion-, ary. See State v. Hudson, 698 So.2d 831, 833 (Fla.1997). Elimination of the discretionary ten-year mandatory minimum term leaves Ashley with a twenty-five-year habitual offender sentence. This is hardly “immunity for the prisoner,” as the term was used in DiFrancesco and Bozza.

I conclude that Cheshire v. State, 568 So.2d 908 (Fla.1990), on which the dissent relies, is distinguishable because it concerned the State’s statutory right to appeal a downward departure sentence, which under DiFrancesco does not violate double jeopardy. We recognized in Cheshire that a reversal and remand for a sentence within the guidelines was compelled by Pope v. State, 561 So.2d 554 (Fla.1990), where we held that no further departure is allowed upon remand from a reversal of a departure sentence without written reasons. See Cheshire, 568 So.2d at 913. Precedent concerning state appeals of sentences that are contrary to applicable rules or statutes is not analogous.

Nor does Florida Rule of Criminal Procedure 3.800(b) provide analogous authority in support of the trial court’s action in this case. The Court Commentary to the amendment creating this provision states that the State may file a rule 3.800(b)(2) motion “only if the correction of the error will benefit the defendant or correct a scrivener’s error.” Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800, 761 So.2d 1015, 1023 (Fla.2000) (emphasis added). Neither condition applies here. First, imposition of the mandatory minimum term in this case is obviously to the defendant’s detriment. Second, as the majority opinion recognizes, the concept of a scrivener’s error does not encompass an oral pronouncement. Nor can the definition be widened without undermining the purpose of rule 3.800(b), which is to enable correction in the trial court of sentencing errors that harm the defendant. In this case, the defendant’s attempt to have the trial court rescind the mandatory minimum term is an example of the appropriate use of rule 3.800(b).

The mandatory minimum term imposed on a habitual violent felony offender, like a guidelines departure, “is an extraordinary punishment that requires serious and thoughtful attention by the trial court.” Ree v. State, 565 So.2d 1329, 1332 (Fla.1990), receded from on other grounds by Smith v. State, 598 So.2d 1063 (Fla.1992). Today’s decision helps ensure that the imposition of the mandatory minimum term authorized for a defendant who meets the criteria for a habitual violent felony offender sentence will receive the careful attention it deserves at the time that the sentence is imposed.

Finally, while I appreciate the dissent’s concerns for the plight of the trial judge, these concerns cannot undermine the overriding constitutional concerns that govern the principle of double jeopardy. Undoubtedly, careful attention must be paid to detail in the pronouncement of sentence.

This case highlights the critical importance of accuracy at the sentencing hearing and the necessity of the State paying close attention to ensure that the oral pronouncement contains no “misstatements.” Further, this case shows how the integrity and accuracy of the sentencing process can be improved if the written sentence is entered by the trial court at the same time as the oral pronouncement during the original sentencing hearing, rather than days or even weeks later.

ANSTEAD, C.J., concurs.

HARDING, Senior Justice,

dissenting.

I respectfully dissent. As the court below noted, “the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Ashley v. State, 772 So.2d 42, 43 (Fla. 1st DCA 2000) (quoting United States v. DiFrancesco, 449 U.S. 117, 135, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980)). As the majority concedes, the trial judge simply misspoke. During sentencing, instead of saying “habitual violent felony offender,” the judge said, “habitual felony offender.” The judge left out one word: “violent.” Nevertheless, it is clear that the whole purpose of the proceeding was to determine whether Ashley qualified as a habitual violent felony offender. The State’s notice was for habitual violent felony offender status; at the hearing the parties focused solely on Ashley’s qualification as a habitual violent felony offender; and the written order of July 9 states that Ashley was being adjudicated as a habitual violent felony offender. Under these circumstances, Ashley had no right to rely on the judge’s simple misstatement, and thus he had no legitimate expectation of finality. Accordingly, jeopardy did not attach at that hearing. When the trial judge realized the mistake, Ashley was brought back into court and advised by the judge that: We brought you back today because I made a mistake in the sentencing in that I sentenced you as an habitual felony offender and there was no such notice filed. However, there was an habitual violent offender notice filed. Therefore, let’s go back and I’ll set aside that earlier sentence and resentence the defendant at this time.

The court orally sentenced Ashley to twenty-five years in prison as a habitual violent felony offender and for the first time imposed a ten-year mandatory minimum term. Defense counsel did not object at the resentencing.

This Court’s opinion in Cheshire v. State, 568 So.2d 908 (Fla.1990), is directly on point. In that case, the State filed a cross-appeal, contending that the trial court erroneously departed downward from the sentencing guidelines without written reasons when the court imposed a seven-year sentence upon the defendant for burglary. Although the defendant conceded that the trial court erred, the defendant asserted that double jeopardy precluded the imposition of a greater sentence on remand. This Court disagreed, concluding that “[djouble jeopardy does not guarantee a defendant the benefit of a judge’s good-faith mathematical or clerical errors.” Id. at 913.

Florida Rule of Criminal Procedure 3.800(b) specifically provides that a motion to correct a sentencing error may be filed by the State to correct a scrivener’s error. A mistake or misstatement made during the oral pronouncement of a sentence is analogous to a scrivener’s error. Therefore, consistent with rule 3.800(b) and Cheshire, I would hold that a trial court, on its own motion, can correct a mistake or misstatement made during the oral pronouncement of a sentence, as was done in the case below.

The majority’s opinion in this case will turn sentencing hearings into the game-like atmosphere that the Supreme Court condemned in DiFmncesco. Unfortunately, the stakes of this game are very high. Undeserving defendants stand to gain much at the slightest slip of a judge’s hand or tongue. The undue burden this Court places on sentencing judges is unrealistic. Without question, the losers of the game will be the citizens of this state.

WELLS and LEWIS, JJ., concur.

      . All the arguments and paperwork concerning prior judgments and sentences, as well as the probation office's report, were presented to the trial judge on the day before the actual sentencing.

      . Florida Rule of Criminal Procedure 3.700(b) provides:
      Every sentence or other final disposition of the case shall be pronounced in open court, including, if available at the time of sentencing, the amount of jail time credit the defendant is to receive. The final disposition of every case shall be entered in the minutes in courts in which minutes are kept and shall be docketed in courts that do not maintain minutes.

      . Florida Rule of Criminal Procedure 3.800(b) specifically provides that a motion to correct a scrivener's error may be filed by the State. A scrivener’s error literally refers to a written error. The definition for scrivener's error in Black’s Law Dictionary directs the reader to "[s]ee clerical error.” Black’s Law Dictionary 1349 (7th ed.1999). However, we have defined scrivener's error as those “clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution. The term scrivener's error refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error.” Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800, 761 So.2d 1015, 1023 (Fla.2000) (court commentary) (emphasis added).

      . Both "scrivener” and its synonym "scribe” have as their source the Latin verb "scri-bere,” meaning to write. See Merriam-Webster’s Collegiate Dictionary 1050 (10th ed.1999)

      . This suggestion has been previously made by the Court’s Criminal Appeals Reform Act Committee. Currently, the Office of State Courts Administrator is involved in examining the feasibility of the technology necessary for this to be done statewide. Once developed, the technology should be made available to enable all trial judges to enter the written sentence at the time of the oral pronouncement. Both the defendant and the State would be present to review and sign the written sentence, further ensuring the integrity of the sentencing process and the accuracy of the sentence imposed.

      . In fact, at the sentencing hearing, defense counsel noted that Ashley had two prior felony convictions: robbery and possession of cocaine. Defense counsel pointed out that the trial court had broad sentencing discretion, from the mandatory minimum ten years to a maximum of thirty years. A comparison of section 775.084(4)(a), Florida Statutes (1999) (habitual felony offenders) and section 775.084(4)(b) (habitual violent felony offenders) reveals that only the latter contains a mandatory term. Hence, it is clear from the record that defense counsel believed that Ashley was being sentenced as a habitual violent felony offender.

      . In Cheshire, the trial court imposed a sentence of death, and therefore this Court had mandatory appellate jurisdiction in the case pursuant to article V, section 3(b)(1) of the Florida Constitution.

      . Ashley is distinguishable from Troupe v. Rowe, 283 So.2d 857 (Fla.1973), and other similar cases. In Troupe, the defendant was charged with breaking and entering and grand larceny. During plea negotiations, the defendant and the State agreed upon a sentence of thirty days in jail followed by two years' probation, but the parties disagreed regarding whether there should be a "finding of guilt” or an adjudication. The trial court agreed with the defendant and entered a finding only, thereby allowing the defendant to return to military duty after his release. The defendant was sentenced accordingly, and the court took a recess. Shortly thereafter, a new assistant state attorney reiterated the State’s objection to a "finding” rather than an adjudication. After a lengthy discussion, the court eventually set aside the earlier plea and sentence and ordered that the case proceed to trial. The defendant sought a writ of prohibition in the district court, and upon its denial, filed a petition for writ of certiorari with this Court. This Court ultimately held that "[jjeopardy had attached in petitioner’s case and the sentence which had been imposed could not thereafter be increased (as the second assistant state attorney’s position would do) in violation of defendant's constitutional guaranty not to be twice placed in jeopardy.” Id. at 860. Based on the facts of Troupe, it is clear that the trial court’s actions were not the result of a mistake or misstatement.