author: THOMPSON, Judge. MURDOCK, Judge,

text:
    INNISFREE CORPORATION v. ESTATE OF Paul A. JOURDAN, Jr., deceased, by and through its administrator, Paul A. JOURDAN, Sr.
    2020095.
    Court of Civil Appeals of Alabama.
    March 28, 2003.
    Certiorari Denied June 13, 2003 Alabama Supreme Court 1021152.

      Steven T. McMeekin of Wainwright, Pope & McMeekin, P.C., Birmingham, for appellant.
    Carl E. Chamblee, Jr., and William H. Weems, Jr., of Chamblee, Ennis, Weems & Malone, L.L.C., Birmingham, for appellee.
   THOMPSON, Judge.

The estate of Paul A. Jourdan, Jr., deceased, by and through its administrator, Paul A. Jourdan, Sr. (hereinafter “the estate”), sued Innisfree Corporation; Innis-free Hotels, Inc.; Redmont Hospitality, Ltd. (“Redmont”); Total Assurance Security and Patrol (“TASP”); and several fictitiously named defendants, seeking workers’ compensation benefits for the dependent of Paul A. Jourdan, Jr. (“Jour-dan”), who was murdered during the course of his employment. The estate later amended its complaint to identify two of the fictitiously named defendants as Talmadge A. Worchester, individually and d/b/a TASP, and Geri Tanner, individually and d/b/a Dixie K-9.

Innisfree Corporation (hereinafter “In-nisfree”) and Redmont moved for a summary judgment. On March 14, 2002, the trial court entered an order denying that motion and dismissing the estate’s claims against Tanner both in her individual capacity and doing business as Dixie K-9.

On June 26, 2002, the trial court conducted an ore tenus hearing. On September 12, 2002, the trial court entered a judgment in which it found Jourdan had been an employee of Innisfree; that Jour-dan’s brother, Raymond Jourdan (“Raymond”), was Jourdan’s dependent; and that Raymond was entitled to the statutory maximum of 500 weeks of workers’ compensation benefits pursuant to § 25-5-60, Ala.Code 1975. In that judgment and in a later order entered pursuant to Rule 60(a), Ala. R. Civ. P., the trial court dismissed the estate’s claims against all of the other remaining defendants. Innisfree timely appealed; the estate did not appeal the dismissal of its claims against the other defendants.

In February 1997, Innisfree managed the Holiday Inn-Redmont hotel (“the hotel”) on behalf of its owner, Redmont. Harlan Butler, the executive vice president of Innisfree, testified that Innisfree had entered into an agreement with TASP pursuant to which TASP was to provide security services for the hotel between the hours of 11:00 p.m. and 7:00 a.m.

Butler testified that the duties of the security personnel provided by TASP were established in an agreement the hotel reached with TASP before Jourdan began working at the hotel. Butler listed the duties the security personnel provided by TASP as follows: to stand inside the hotel lobby; to be a visible security presence in the hotel; to escort employees and customers to the parking garage; to deal with unruly customers; to drive the hotel van to transfer airline employees between the airport and the hotel; and to drive the hotel van to pick up the hotel’s breakfast cook each morning and take her to work at the hotel. Butler testified that a person working at the hotel’s front desk generally instructed the security person on duty when a customer or employee needed an escort to the parking garage, when the hotel needed the security person to deal with an unruly customer, and what time to go to the airport. Butler stated that before 11:00 p.m., a hotel bellman usually performed some of those services, such as escorting patrons or employees to the parking garage, that were performed by the security personnel after 11:00 p.m.

Butler testified that Innisfree did not have the authority to discipline the security-service personnel sent to the hotel by TASP, nor could it terminate the security-service personnel. Butler also stated that Innisfree had no control over the scheduling of which nights a particular security-service person would work. Butler testified that if one of the security-service personnel could not work, that person telephoned TASP and not the hotel. Butler explained that it was TASP’s responsibility to provide a replacement security person to provide security services at the hotel in that event. Butler testified that the security personnel did not wear uniforms issued by the hotel, and that they wore either a security uniform or a blue police-officer-type uniform. Butler also testified that Innisfree did not maintain any personnel records, schedules, or payroll information for the security personnel and that the officers were paid by TASP.

Talmadge Worchester testified that he began doing business as Dixie K-9, providing security dogs for various businesses, but that by 1997, he was doing business as TASP; Worchester operated TASP as a security-service business. Worchester explained that TASP had contracts or agreements to provide security for several businesses, and that one of those businesses was the hotel. Other than Worchester, TASP had one full-time employee — a man named Walter who was called “Terry.” TASP assigned Terry to work at the hotel. Worchester testified that Terry hired his friend, Jourdan, to work for TASP so that Terry could have some evenings off. The record does not clearly indicate when Jourdan began working for TASP, but Worchester’s testimony indicates that Jourdan had been working for TASP for only a few months before he was killed.

Worchester testified that Jourdan had a full-time job as a security guard at a local greyhound racetrack, and that Jourdan worked one night per week for TASP; TASP assigned Jourdan to work at the hotel. Worchester explained the duties the hotel had informed TASP it wanted its security personnel to perform between the hours of 11:00 p.m. and 7:00 a.m., as follows:

“From my understanding, all that they were supposed to do down there was to check the floors, make sure all rooms were closed and [that] there were no vagrants in the hallways or in the restrooms .... [t]hen, they were supposed to make coffee. And then, they were to take the airline [employees] to them terminal.... And on [the] return trip, [they] were to stop and pick up the cook and come back to the hotel.”

Worchester testified that the hotel did not issue Jourdan a uniform, but that the uniform Jourdan wore was the one he wore to his job at the racetrack. Wor-chester stated that Innisfree did not take part in hiring either Terry or Jourdan, and that it did not have the authority to fire the security personnel. Worchester stated that at one time, the hotel had considered hiring its own in-house security staff, but that it ultimately decided not to do so. Worchester also testified that he was concerned about TASP’s liability if there was an accident while Terry or Jourdan was driving the hotel’s van, so the hotel manager agreed to “put a waiver in there that their insurance would cover” any liability in the event the security personnel were involved in an accident while driving the hotel’s van. It appears, but is not clear from the record, that the insurance policy Worchester referred to was provided by the hotel, i.e., Redmont.

It is undisputed that the hotel paid TASP $6.10 per hour for the security services Jourdan provided, and that TASP paid Jourdan minimum wage and in cash. The record indicates that TASP has had some difficulties with the Internal Revenue Service, apparently because of its failure to pay corporate taxes, its failure to pay taxes on behalf of its employees, and its failure to provide the appropriate income-tax forms to its employees.

On February 7, 1997, Jourdan, who was providing security services for the hotel, was murdered after leaving the airport in the hotel van purportedly on the way to pick up the hotel’s breakfast cook. However, Jourdan was found dead in his home, and the hotel’s van was recovered a few days after the murder.

Raymond, Jourdan’s brother, testified that he had visited Jourdan seven to eight times while Jourdan worked at the hotel. Raymond testified that Jourdan did not wear a police-officer-type uniform while working at the hotel, but that Jourdan wore blue slacks and a tie when working at the hotel. Raymond also testified that Jourdan wore a hotel lapel pin when he was working at the hotel. Raymond testified that he had been present when a member of the hotel staff had asked Jour-dan to check on something occurring within the hotel. Raymond also stated that he had witnessed Jourdan greet hotel customers, and that on occasion he might “carry a briefcase or something for someone,” but that most of the time, the customers merely proceeded past Jourdan and went to the hotel desk counter. Raymond also testified regarding one occasion in which the hotel’s breakfast cook offered to provide both Jourdan and him breakfast; the estate had presented evidence that the hotel provided a daily breakfast to all of its employees.

The estate presented evidence, through Raymond’s testimony and the testimony of the brothers’ father, that Raymond and Jourdan lived together and, until mid-1996, each contributed to the shared household expenses. In mid-1996, Raymond lost his job. Raymond borrowed $15,000 from his parents in order to start his own business. He obtained his first business license in December 1996, and the final license in March 1997. From mid-1996 until his death, Jourdan paid all of his and Raymond’s household expenses. Raymond, who was 25 years old at the time Jourdan died, suffers from no physical or mental deficiencies that prevent him from seeking, obtaining, or maintaining gainful employment; Raymond testified that between mid-1996 and March 1997, he was attempting to start his own business.

Raymond started his own business in March 1997, the month after Jourdan died, and was still operating that business at the time of the hearing in this matter. However, the estate contended that because Jourdan was paying most of the household expenses at the time of his death, pursuant to § 25-5-62, Ala.Code 1975, Raymond was totally dependent on Jourdan for his own support; on that basis, the estate sought workers’ compensation on Raymond’s behalf. The trial court determined that Raymond was entitled to workers’ compensation death benefits from Innis-free for 500 weeks, the maximum period of time allowed by statute. See § 25-5-60, Ala.Code 1975.

On appeal, Innisfree makes several arguments concerning the trial court’s determination that Raymond was Jourdan’s dependent. However, because Innisfree’s argument that the trial court erred in determining, based on the evidence presented to it, that Jourdan was its employee rather than an independent contractor employed by TASP, is dispositive of this appeal, we do not reach the other issues raised in Innisfree’s brief on appeal.

Benefits under the Workers’ Compensation Act are available only where the employer-employee relationship exists between the parties. See § 25-5-53, Ala.Code 1975 (the Workers’ Compensation Act provides an employee’s only remedy for injuries suffered on the job). “The exclusive remedy provision extends to ‘special employers,’ which have been described as ‘individuals or businesses who, for practical purposes, may be considered primary or co-employers of the injured employee.’ ” Gaut v. Medrano, 630 So.2d 362, 364 (Ala.1993) (quoting Rhodes v. Alabama Power Co., 599 So.2d 27, 28 (Ala.1992)). In reviewing a determination that a claimant is an employee or a special employee of the defendant, this court must conclude whether the trial court’s finding that an employer-employee relationship existed is supported by substantial evidence. “Substantial evidence” is “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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Our supreme court has adopted the following test to determine whether a claimant is an employee or an independent contractor:

“ ‘When a general employer lends an employee to a special employer, the special employer becomes liable for [workers’] compensation only if
“ ‘(a) the employee has made a contract of hire, express or implied, with the special employer;
“ ‘(b) the work being done is essentially that of the special employer; and
“ ‘(c) the special employer has the right to control the details of the work.
“ When all three of the above conditions are satisfied in relation to both employers, both employers are liable for [workers’] compensation.... ’
“1C A. Larson, The Law of Workmen’s Compensation, § 48 (1980).”

Terry v. Read Steel Prods., 430 So.2d 862, 865 (Ala.1983). See also Rast Constr., Inc. v. Peters, 689 So.2d 781 (Ala.1996) (the three-part test set forth in Terry, supra, must be met by substantial evidence); Gaut v. Medrano, supra; Bechtel v. Crown Cent. Petroleum Corp., 495 So.2d 1052 (AIa.1986).

In finding that Jourdan was an employee of Innisfree, the trial court stated:

“This court, after further careful consideration, recognizes the factors presented by [Innisfree that] would otherwise support a finding that [Jourdan] was an employee of an independent contractor. Under what might be described as normal circumstances, [Innis-free] would likely not have had a reserved right of control over [Jourdan]. However, in this case, Jourdan was not performing the normal duties of a security guard, but was instead engaged in the performance of those duties of a regular employee of [Innisfree], to include transportation of airline crews to and from the airport on behalf of the hotel. The Court further finds persuasive the evidence as submitted by deposition testimony [of Worchester] whereby [Jourdan] was recognized as an agent or employee of [Innisfree], such that liability insurance coverage was provided during his operation of [the hotel’s] vehicle. In addition, Jourdan was killed while engaged in a mission for [Innisfree] in picking up the hotel’s breakfast cook.
“For these and other reasons, it appears to this court that at the time of his death, Jourdan was acting as an employee of [Innisfree].”

Thus, it appears from the language of the judgment that the trial court considered the three elements of the test adopted in Terry for determining whether a worker was a special employee of a defendant.

Under that test, we must first determine whether Jourdan made a contract of hire, either express or implied, with Innisfree. Nothing in the record indicates that Jour-dan entered into an express contract of hire with Innisfree. Rather, the estate had proceeded under the theory that In-nisfree and Jourdan had an implied contract of hire.

In Terry v. Read Steel Products, supra, the trial court concluded that an employer-employee relationship existed between Read Steel and Rodney Terry, a worker who was employed by a temporary-service agency to work at Read Steel. In that case, our supreme court adopted the test set forth in Larson’s The Law of Workmen’s Compensation regarding when a special employer becomes liable as an employer for workers’ compensation benefits. It concluded that Terry had been engaged in doing Read Steel’s work, i.e., the work of the special employer, and that Read Steel had controlled the details of Terry’s work. The court then concluded that there was a contract of hire between Terry and Read Steel. 430 So.2d at 866. In Terry, however, although Terry was technically on the temporary-service agency’s payroll, Read Steel had actually hired Terry; Terry testified that he had not signed any documents at the temporary-service agency, and that he had never had any dealings with anyone at the temporary-service agency except picking up his pay-cheek.

Similarly, in Bechtel v. Croum Central Petroleum Corp., 495 So.2d 1052 (Ala.1986), our supreme court concluded that the worker, Bechtel, was an employee of the special employer, Crown. In that case, Bechtel was supervised by a Crown employee and wore a uniform issued by Crown; Crown participated in the hiring of Bechtel; and a Crown supervisor had the authority to transfer Bechtel or to terminate her employment. Our supreme court concluded that that evidence clearly indicated that Bechtel had submitted to an employer-employee relationship with Crown. 495 So.2d at 1054.

In Pinson v. Alabama Power Co., 557 So.2d 1236 (Ala.1990), the issue was whether the worker, Pinson, was an employee of Alabama Power (“APCo”). In that case, APCo entered into an agreement with a company known as Ellard, which agreed to provide APCo with workers and supervise the workers with regard to a particular project. APCo reserved the right to participate in hiring, to terminate the workers’ employment, and to supervise and control the manner in which the workers performed their duties. APCo also maintained and calculated the payroll and each worker’s deductions, and it deposited money for the payroll into a special account for Ellard from which Ellard paid the workers. APCo had also required that it approve the bank in which Ellard opened that special account from which it would pay the workers. Our supreme court rejected Pinson’s argument that because El-lard supervised its workers on the project site, he was not an employee of AlPCo. The court concluded that “[t]he undisputed material facts in this case show, as a matter of law, an implied contract of employment between Pinson and APCo.” Pinson v. Alabama Power Co., 557 So.2d at 1238.

In this case, the evidence might support a finding that the second two elements of the test set forth in Terry have been met. However, we find the facts with regard to the first element of that test to be distinguishable from the facts pertaining to that element in the cases of Terry, Bechtel, and Pinson.

In Terry, Bechtel, and Pinson, the evidence demonstrated that the special employers each performed certain activities that would support an inference of an implied employment relationship. In those cases, the special employers took part in hiring or had the authority to terminate the worker’s employment, and, in the ease of Pinson, the special employer even maintained payroll records. In those cases, the courts concluded that an employer-employee relationship was implied under the particular facts of those cases; thus, the courts concluded that the first element of the test set forth in Larson’s The Law of Workmen’s Compensation and adopted in Terry was satisfied.

In this case, both Butler, the representative of Innisfree, and Worchester, the owner of TASP, testified regarding the duties the security personnel were to perform for the hotel and the hours in which those services were required. Butler and Wor-chester’s testimony regarding their understanding of the agreement between the hotel and TASP pertaining to the duties of the security personnel was virtually identical; it appears that, to some extent, hotel employees dictated the timing of when Jourdan or another security person was to perform those duties. It is undisputed that Innisfree did not maintain or calculate the payroll for Jourdan; that it did not pay taxes or for workers’ compensation coverage for Jourdan; that it did not participate in hiring Jourdan; and that it did not have the authority to discipline, transfer, or terminate Jourdan. Further, Innisfree had no authority to determine which security person was to work at the hotel at any particular time.

We note that in its judgment, the trial court cited the provision of insurance coverage for the security personnel when they drove the hotel van as a basis for concluding that Jourdan was an “agent” of Innisfree; the record contains no evidence regarding the nature of that insurance coverage or which entity provided that coverage. Therefore, even assuming that that insurance coverage could support an inference of an implied employer-employee relationship, the evidence does not establish that Innisfree, rather than the hotel, provided the insurance coverage for the security personnel.

After carefully reviewing the record on appeal, we conclude that the facts do not support a finding that Innisfree had an implied employer-employee relationship with Jourdan.

“This Court has held that in determining whether a special employment relationship exists ‘the most important criterion to be scrutinized is the requirement of a contract of hire, express or implied.’ Terry v. Read Steel Products, 430 So.2d at 866. Indeed, ‘the courts have usually been vigilant in insisting upon a showing of deliberate and informed consent by the employee before [the] employment relation [may be established].’ 1C, A. Larson, Workmen’s Compensation Law, § 48.12, p. 8-400-8-445. A mutual agreement bettueen the employee and the person alleged or claiming to be the special employer, ie., a contract of hire, express or implied, is essential because an employee loses the right to sue the special employer at common law, while gaining other rights, when he or she enters into the special employment relationship. Id.”

Hicks v. Alabama Power Co., 628 So.2d 1050, 1053 (Ala.1993) (emphasis added).

Merely because a person employed by an independent contractor serves another employer at its command or direction, a new employment relationship is not necessarily created. Rast Constr., Inc. v. Peters, 689 So.2d 781 (Ala.1996). The evidence in this case does not demonstrate that Jourdan could be said to have accepted, even impliedly, a contract of hire with Innisfree. We conclude that the trial court erred in determining that Jourdan was an employee of Innisfree, and, therefore, that the estate or Raymond was entitled to benefits under the Workers’ Compensation Act. We must reverse the trial court’s award of workers’ compensation benefits.

Our holding that Jourdan was not a special employee of Innisfree is dispositive of this appeal. Therefore, we pretermit discussion of whether Raymond was Jour-dan’s dependent and whether he was entitled to the maximum amount of benefits authorized by the Workers’ Compensation Act.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY and PITTMAN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Judge,

concurring specially.

While I concur in the majority opinion, I write separately to note that the court’s decision in this case is supported by the statutory definitions of “employer” and “employee” in the Workers’ Compensation Act. See Ala.Code 1975, § 25-5-1(4) and (5). In particular, the latter provision defines an “employee” as “every person in the service of another under any contract of hire, express or implied, oral or written .... ” (Emphasis added.) As discussed in the majority opinion, this case does not involve a contract of hire — either express or implied.

      . The record on appeal sometimes refers to this entity as “Dixie Canine.”

      . Redmont, not Innisfree, paid the wages of and other expenses related to the hotel employees. It is undisputed that the security personnel were not on Redmont's payroll.


source: Caselaw Access Project

author: CRAWLEY, Judge. PITTMAN, Judge,

license: Public Domain

text:
    Phyllis Abrams HAMMOCK v. Larry Ray HAMMOCK.
    2020115.
    Court of Civil Appeals of Alabama.
    June 6, 2003.

      James R. Bowles of Bowles & Cottle, Tallassee, for appellant.
    Stephen S. Weldon of Scarborough & Weldon, LLC, Tallassee, for appellee.
   CRAWLEY, Judge.

Phyllis Abrams Hammock (“the wife”) and Larry Ray Hammock (“the husband”) were divorced in May 1999. The divorce judgment incorporated the parties’ settlement agreement, which read, in pertinent part:

“Section II
“Property Division
“1. The fee simple title to the 20 acre parcel of land located in Tallapoosa County, Alabama, shall be vested in the [husband].
“3. The [wife] shall have the exclusive ownership of the 1998 Homestead 56 x 28 mobile home, and all furniture, furnishings and appliances therein.
“4. All right and title to the following described chattel is hereby divested out of the [wife] and vested in the [husband], subject to any encumbrances against the same: all of the [husband’s] personal effects, jewelry, and clothing, the Chevrolet Blazer and the Isuzu pickup truck; everything owned by the [husband] prior to the marriage.
“5. All right and title to the following described chattel is hereby divested out of the [husband] and vested in the [wife], subject to any encumbrances against the same: all of the [wife’s] personal effects, jewelry, and clothing, the 1995 Honda Elantra, and everything owned by the [wife] prior to the marriage.
“6. Any chattel not listed in paragraphs 4 and 5 above shall be the sole and exclusive property of the person having possession of the same on the date this agreement is executed, subject to any encumbrances against the same.
“7. Each party shall be responsible for the debt in their name only.”

In September 2001, the husband filed a contempt petition, seeking to have the wife held in contempt for failing to pay the mortgage payments on the mobile home awarded to her in the divorce judgment. The wife did not appear at the trial, which was held on January 4, 2002. The trial court found the wife in contempt for failing to make the payments on the mobile home. The trial court’s February 2002 judgment required the wife to either refinance the mobile home in her sole name or to otherwise relieve the husband of the debt owed on the mobile home within 45 days of the judgment. The trial court ordered that, if the wife failed to do so, the husband was to be awarded the mobile home and that the wife was to pay the reasonable costs associated with moving the mobile home from her property to his. The trial court also ordered that the wife pay the husband’s $1,300 attorney fee. After her post-judgment motion was denied, the wife appealed.

The wife argues that the trial court could not hold her in contempt for failing to make the payments on the mobile home because the 1999 divorce judgment does not require her to make those payments. In fact, she points out, the agreement incorporated into the divorce judgment is silent as to the debt associated with the mobile home. The only provision in the judgment addressing debt requires each party to be responsible for the debts in their own name; the debt associated with the mobile home was a joint debt of the parties. The wife further argues that the trial court could not assess an attorney fee because, she says, the trial court had no basis for finding her to be in contempt. Her final argument is that the trial court lost jurisdiction to modify the parties’ property settlement in July 1999 and that its February 2002 order requiring her to refinance the mobile home in her own name is therefore a nullity. Because the wife’s issues are issues. of law, we will review the trial court’s judgment de novo. Keevan v. Keevan, 796 So.2d 379, 381 (Ala.Civ.App.2001).

The husband urges us to affirm the trial court’s judgment. He states that the trial court has the power to construe the terms of the divorce judgment, see Ex parte Littlepage, 796 So.2d 298 (Ala.2001), a proposition with which we agree. However, the trial court “ ‘must construe [those terms] so as to express the intent of the parties.’ ” Ex parte Littlepage, 796 So.2d at 301 (quoting Satterfield v. Satterfield, 419 So.2d 601, 603 (Ala.Civ.App.1982)).

In Ex parte Littlepage, our supreme court reversed this court’s affirmance of a trial court’s judgment requiring a husband to pay debts not specifically mentioned in the parties’ separation agreement, which had been incorporated into their divorce judgment. Ex parte Littlepage, 796 So.2d at 302. Paragraph 15 of the trial court’s judgment in Ex parte Littlepage addressed the payment of debts; it read:

“ ‘That each party shall be separately responsible for any debt, account, or expense titled in their respective names and shall forever hold the other harmless therefrom, except the parties agree that the balance on deposit in the Compass Bank savings account shall be expended to pay off the following accounts as the balance on each account existed on September 1st, 1997, namely: the Plaintiffs [the wife’s] individual Visa account; the parties’ joint Visa account; the Discover account; the McRae’s account; and the account with Gayfers. Any item charged by either party on any of the above identified accounts subsequent to September 1st, 1997, shall be the separate debt of the party incurring the same. Any balance remaining from the savings account after payment of the identified accounts shall be equally divided between the parties. In the event the proceeds from the Compass Bank savings account are insufficient to pay the due balances in their entirety then, in such event, sufficient funds shall be withdrawn from the parties’ Morgan Keegan Brokerage Account to extinguish in their entirety each of the above identified indebtednesses.’ ”

Id. at 299 (emphasis and bold typeface omitted).

Four months after the divorce judgment was entered in Ex parte Littlepage, the wife filed a motion for rule nisi, alleging that the husband had not paid the seven credit-card bills she had submitted to him for payment under paragraph 15 of the divorce judgment. Id. The husband responded, arguing, among other things, that the only accounts that the wife had discussed in the mediation that led to the settlement agreement were one individual Visa account, one joint Visa account, and one Discover account. Id. He said the bills submitted to him for payment included five individual Visa accounts and a Wa-chovia account and that those bills far exceeded the approximate $12,000 amount the wife had represented that she owed. Id.

At trial, the husband presented the testimony of the mediator, who recalled that only two Visa accounts were discussed and that those accounts had an aggregate balance of approximately $12,000. Id. at 300. The mediator said that he did not recall, and his notes from the mediation did not indicate, that paragraph 15 should have read that the savings account and brokerage account were to be used to pay all “individual accounts” held by the wife as opposed to just a single “individual account.” Id. at 300-01, The wife, however, maintained that she understood paragraph 15 to require the payment of all of her Visa accounts as opposed to one Visa account. Id. at 301.

The trial court entered a judgment ordering the husband to reimburse the wife for a portion of the “ ‘debts that were not covered in the Judgment of Divorce which are in the [wife’s] name, to wit: VISA BancAmerica, VISA Advanta, and First Card VISA.’ ” Id. at 301. The Ex parte Littlepage court reversed this court’s affir-mance of the trial court’s judgment, noting that the language in paragraph 15 was unambiguous and that it included only one individual Visa account. Id. at 302. The court explained that, although a trial court has the duty to determine whether an agreement is ambiguous and may consider parol evidence to explain or clarify an ambiguity, where the agreement contains no ambiguity, the trial court must determine the intent of the parties from the language of the agreement, without consideration of parol evidence. Id. at 301-02.

In the present case, the parties’ 1999 divorce judgment fails to mention any debt associated with the mobile home. When a divorce judgment fails to address who will be responsible for the debts associated with the marriage, “[t]he party liable for his or her debts during the marriage would still be liable for those debts after the dissolution of the marriage and if the parties were jointly liable for debts during the marriage they would still be jointly liable for them after the divorce.” Miller v. Miller, 391 So.2d 119, 120 (Ala.Civ.App.1980). Thus, because the debt associated with the mobile home was a joint debt, the parties remained jointly liable for that debt under the 1999 divorce judgment.

The trial court apparently determined that the 1999 divorce judgment required the wife to assume the joint debt on the mobile home and to hold the husband harmless therefrom. We see no basis for such an implicit finding. Nothing in the 1999 divorce judgment is ambiguous, so parol evidence concerning its intended meaning would have been inadmissible. Ex parte Littlepage, 796 So.2d at 302. The plain language of the 1999 divorce judgment states that the wife is awarded the mobile home, but it does not state that she must assume the debt associated therewith; therefore, she was not required by the divorce judgment to make the payments on the mobile home.

“[Wjhether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.”

Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994). Rule 70A, Ala. R. Civ. P., governs contempt proceedings in civil actions. Rule 70A(a)(2)(D) defines “civil contempt” as a “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Because the 1999 divorce judgment did not order the wife to assume the debt associated with the mobile home and to hold the husband harmless therefrom, the wife’s failure to pay the joint debt does not violate the divorce judgment. Accordingly, we see absolutely no basis for the finding of contempt. We reverse the trial court’s judgment finding the wife in contempt; we also find that the trial court abused its discretion in awarding an attorney fee to the husband based upon the contempt citation, and we reverse the judgment awarding an attorney fee to the husband. See Ala. Code 1975, § 30-2-54 (permitting the award, in the trial court’s discretion, of an attorney fee in divorce actions or actions seeking the recovery of alimony, maintenance, or support where a contempt citation is issued); Norland v. Tanner, 563 So.2d 1055, 1057 (Ala.Civ.App.1990).

The wife’s remaining argument on appeal is that the portion of the trial court’s 2002 judgment ordering her to refinance the mobile home in her sole name or to otherwise relieve the husband of responsibility for the debt on the mobile home and awarding the mobile home to the husband if she had not done so within 45 days of the judgment is an improper modification of the parties’ 1999 divorce judgment. As she correctly notes, “ ‘[a] court cannot modify property provisions [in divorce judgments], except to correct clerical errors, after 30 days from the final judgment.’ ” Ex parte Littlepage, 796 So.2d at 301 (quoting Hamilton v. Hamilton, 647 So.2d 756, 759 (Ala.Civ.App.1994)); see also McGuire v. Horton, 586 So.2d 9, 10 (Ala.Civ.App.1991).

The trial court has attempted to alter the property-settlement provisions in. the parties’ 1999 divorce judgment. The trial court’s 2002 judgment requires the wife to refinance the .debt associated with the mobile home in her sole name or to otherwise relieve the husband of his liability for the debt on .the mobile home or, in the event the wife does, not do so within 45 days, it awards the mobile home to the husband. This is an impermissible modification of the divorce judgment. See Ex parte Lit-tlepage, 796 So.2d at 302. Therefore, we reverse .that portion of the trial court’s judgment attempting to modify the property-settlement provisions of the parties’ 1999 divorce judgment.

REVERSED AND REMANDED.

YATES, P.J., concurs.

THOMPSON and PITTMAN, JJ., concur specially.

MURDOCK, J., concurs in the result.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion. Because the parties’ divorce judgment was silent on the issue of the parties’ future responsibilities with respect to the joint debt that had been secured by the mobile home, the wife took possession of the mobile home subject to that debt, the parties’ personal obligations as to that debt after the divorce remained the same as they were before the divorce, and the trial court has lost jurisdiction to modify the property-division aspects of its judgment so as to allocate that debt.

■ I write specially to note the potential applicability of Ala.Code 1975, § 8-3-1, to the parties’ situation concerning the mobile-home debt:

“Joint makers of notes, bills, bonds, or contracts for the payment of money are bound severally and jointly to the payee, transferee, or holder, jointly and severally, for the full amount due; but as between themselves, each is principal to the extent of his share of the joint and several debt and surety to the extent of the shares of the other makers.”

(Emphasis added.) That statute enables a comaker of a note who has paid more than his or her share of the debt evidenced by the note to bring a contribution action against a comaker who has not paid his or her share. See generally Hardy v. McMullan, 612 So.2d 1146 (Ala.1992). To the extent the wife may have failed or refused to pay her share of the mobile-home debt, and to the extent that the husband may have paid more than his share of that debt, the husband may yet be entitled to relief even though the wife is not in actual or constructive contempt of the divorce judgment.

THOMPSON, J., concurs.

      . Although the judgment was entered on February 25, 2002, the wife's postjudgment motion was filed on March 25, 2002, and the trial court did not deny that motion until September 17, 2002, the wife's appeal is timely because the parties filed, on June 24, 2002, a statement indicating their agreement to extend the 90-day time limit of Rule 59.1, Ala. R. Civ. P.


author: COBB, Judge.

text:
    Gregory Louis HUNTER v. STATE of Alabama.
    CR-01-1736.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Rehearing Denied April 18, 2003.

      James M. Sims, Anniston, for appellant.
    Gregory Hunter, pro se.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

Gregory Hunter was indicted for and convicted of third-degree escape, a violation of § 13A-10-33, Ala.Code 1975. He was sentenced, as a habitual offender, to 18 years’ imprisonment. This appeal followed.

On September 20, 2001, while in jail awaiting release on probation on an unrelated offense, Hunter got into a fight with another inmate. As a result, Hunter was arrested for assault in the third degree (a misdemeanor). He was not taken before a magistrate or judge, but was released on an appearance' bond and was directed to appear before the district court on November 13, 2001. On September 27, 2001, the facts underlying the assault in the third-degree complaint were presented to a magistrate for a probable cause determination. See Rule 4.3(a)(2), Ala. R.Crim. P. At this time evidence was disclosed revealing that Hunter had used a-ballpoint pen in the fight in an attempt to “jab” the victim in the eye. (C.R. 21.) Based on this new information, a complaint/arrest warrant was issued on September 27, 2001, for Hunter, alleging the offense of assault in the second degree (a felony). Shortly thereafter, Investigators James Wigley and Johnny Sloan saw Hunter at a gasoline service station. After Hunter drove away from the station, the officers activated their patrol car lights and stopped Hunter’s vehicle. Wigley told Hunter to get out of the vehicle because he needed to speak with him. When Hunter and Wig-ley reached the back of the vehicle, Wigley grabbed Hunter’s left wrist. Wigley told Hunter that he had a warrant for his arrest and that he was under arrest. Sloan grabbed Hunter’s right wrist. At this time, Hunter was pushed forward so that he was leaning on the trunk of the vehicle. When the officers attempted to place handcuffs on Hunter, he broke away from the officers’ grasp and ran through a field. The officers were not able to find Hunter that night. He was later apprehended, and he was tried for, and convicted of, escape.

Hunter raises two issues on appeal, and we address each in turn.

I.

Hunter claims that the trial court erred when it denied his motion to dismiss the indictment charging escape. Specifically, he contends the indictment should have been dismissed because, he says, his arrest was unlawful. Whether a trial court’s denial of a motion to dismiss an indictment was error is reviewed under an abuse-of-discretion standard of review. See Raper v. State, 584 So.2d 544 (Ala.Crim.App.1991).

Hunter argues that because he had already been arrested and released on bond following Ms arrest for assault in the third degree, the issuance of an “arrest warrant was not the appropriate vehicle to serve the [second-degree assault] complaint.” (R. 6.) According to Hunter, the appropriate means to inform him of the new charge of assault in the second degree would have been by service of a summons pursuant to Rule 3.4, Ala. R.Crim. P. This rule states:

“The summons may be served by any law enforcement officer in the same manner as a summons in a civil action, except that service may not be by publication. At the law enforcement officer’s discretion and expense, a summons may be served by certified mail, requiring a signed receipt or some equivalent thereof.”

Rule 3.4, Ala. R.Crim. P. In other words, a summons was appropriate because, Hunter argues, it was necessary only to “apprise [Hunter] of the charges filed against him and to notify [him] to appear.” Committee Comments to Rule 3.4, Ala. R.Crim. P.

Hunter contends that once he was released on bond, Rule 4.3(a)(2), Ala. R.Crim. P., provided the procedure to be followed when issuing a new complaint.

“(2) If a person arrested without a warrant has been released and cited or directed to appear without having been taken before a judge or magistrate for a probable cause determination, the officer or private person who made the arrest shall without undue delay make a complaint before a judge or magistrate as provided in Rules 2.3 and 2.4. If the judge or magistrate finds probable cause, the complaint shall be served on the defendant in the manner provided in Rule 3.4 for service or summons, or shall be delivered to the defendant at the time of the defendant’s appearance. If the judge or magistrate does not find probable cause, the person arrested shall promptly be notified and advised that an appearance will not be required. Notification shall be made by the magistrate or clerk of the court by mail directed to the defendant at the defendant’s last known address.”

Rule 4.3(a)(2), Ala. R.Crim. P. (emphasis added).

Thus, Hunter asserts that the issuance of an arrest warrant for assault in the second degree was unlawful. According to Hunter, he committed no criminal offense in resisting an unlawful arrest. “ ‘The law in Alabama is clear that, to a limited degree, a party is justified in attempting to resist an unlawful arrest. A party may use reasonable force to extricate himself from an unlawful arrest.’ ” Telfare v. City of Huntsville, 841 So.2d 1222, 1229 (Ala.2002)(quoting Ex parte Wallace, 497 So.2d 96, 97 (Ala.1986)).

Hunter’s reliance on Rule 4.3(a)(2), Ala. R.Crim. P., is misplaced. Under Rule 4.3(a)(2), Ala. R.Crim. P., the person making the arrest must bring a complaint before a judge or magistrate for a probable cause hearing. If probable cause is found, a summons is served on the defendant in the manner provided in Rule 3.4, Ala. R.Crim. P. That procedure would have been applicable to the third-degree assault case where Hunter was arrested without a warrant and released before a probable cause hearing was held. In that situation, after a subsequent finding of probable cause, notification by summons, as permitted by Rule 4.3(a)(2), Ala. R.Crim. P., would have been appropriate.

However, Hunter’s arrest for assault in the second degree followed the issuance of a warrant for his arrest. When the complaint in the third-degree assault case was presented for a probable cause determination, it was determined that, based on the evidence, Hunter should be charged with second-degree assault. Hunter was never charged with assault in the third degree. Instead, based on the evidence presented to the magistrate, it was determined that probable cause existed to support a charge of assault in the second degree. This was a new charge for which Hunter had not been arrested. Thus, a complaint and an arrest warrant for that offense was due to be issued.

The Rules of Criminal Procedure do not suggest that a magistrate or judge is prohibited from issuing an arrest warrant where probable cause supports charging a greater offense. Rule 3.1(a), Ala. R.Crim. P., states that a judge or magistrate shall issue an arrest warrant or summons “[u]pon return of an indictment, or upon a finding of probable cause.”

“(a) Issuance. Upon return of an indictment, or upon a finding of probable cause made pursuant to Rule 2.4, the judge or magistrate shall immediately cause to be issued an arrest warrant or summons, as provided in Rule 3.2.
“(b) Summons. If the defendant is not in custody, if the offense charged is bailable as a matter of right, and if there is no reason to believe that the defendant will not respond to the summons, a summons may be issued, at the sole discretion of the issuing judge or magistrate.”

Rule 3.1, Ala. R.Crim. P. (emphasis added).

Thus, the issuance of a summons or an arrest warrant is a matter left within the discretion of the issuing judge or magistrate. In exercising its discretion, the magistrate in Hunter’s case issued an arrest warrant upon a finding of probable cause that Hunter had committed a felony instead of a misdemeanor. Thus, Hunter’s arrest for assault in the second degree was lawful, and the trial court’s denial of Hunter’s motion to dismiss the indictment charging escape on the ground that Hunter was resisting an unlawful arrest was not an abuse of discretion.

II.

Hunter claims the trial court erred by denying his motion for a judgment of acquittal because, he argues, the State never proved he was in custody as required by the statutory definition of the offense of third-degree escape. Custody is a “restraint or detention by a public servant pursuant to a lawful arrest, conviction or order of court.” § 13A-10-30 (b)(1), Ala.Code 1975. “The United States Supreme Court has held that for purposes of determining whether a person is in ‘custody,’ ‘the ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” Gibbons v. State, 676 So.2d 956, 957 (Ala.Crim.App.1995)(quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). The Alabama Supreme Court held that for purposes of the escape statute, a person is not in “custody” until his arrest is completed. Ex parte McReynolds, 662 So.2d 886 (Ala.1994). A person’s arrest is complete when there is an assertion of the intent to arrest followed by either physical touching or submission of the arrestee. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Based on the holdings announced in 'Hodari D., Gibbons, and McReynolds, we hold that Hunter’s arrest was complete when the officers grabbed his wrists, informed him that he was under arrest, and began to place handcuffs on his wrists. Therefore, Hunter was in custody when he fled. Accordingly, we hold that the State presented a prima facie case of escape in the third degree; the trial court did not err in denying Hunter’s motion for a judgment of acquittal.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . As best we can discern, it appears that Hunter was literally being processed for release on probation at the time of the incident.

      . Rule 4.3(a), Ala.R.Crim.P., authorizes release after a warrantless arrest and specifies the circumstances under which release from jail may be obtained. Hunter was arrested without a warrant and his release was in accordance with the rule.

      .This circumstance increases Hunter's culpability because it adds the element of intending to cause injury by use of a deadly weapon or dangerous instrument. See § 13A-6-21(a)(2), Ala.Code 1975.

      . "If the judge or magistrate is reasonably satisfied from the complaint and the evidence, if any, submitted that the offense complained of has been committed and that there is probable cause to believe that the defendant committed it, the judge or magistrate shall proceed under Rule 3.1."
      Rule 2.4, Ala. R.Crim. P.

      . "A person commits the offense of escape in the third degree if he escapes or attempts to escape from custody.” § 13A-10-33(a), Ala. Code 1975.


author: PER CURIAM.

text:
    Ex parte Gregory L. HUNTER. (In re Gregory Louis Hunter v. STATE of Alabama).
    1021296.
    Supreme Court of Alabama.
    June 20, 2003.
    Gregory L. Hunter, pro se.
   PER CURIAM.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MOORE, C.J., and HOUSTON, LYONS, JOHNSTONE, and WOODALL, JJ., concur.


author: McMILLAN, Presiding Judge.

text:
    Jeffery Charles JACKSON v. STATE.
    CR-01-2577.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Jon Christopher Capps, Dothan, for appellant.
    William H. Pryor, Jr., atty. atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Jeffery Charles Jackson, appeals from his probation revocation. Jackson was placed on supervised probation in September 2001 after a conviction for unlawful possession of a controlled substance. On November 13, 2001, Jackson’s probation officer filed a delinquency report, charging that Jackson had violated the conditions of his probation. The report alleged -that Jackson had been charged with three new offenses: (1) resisting arrest, (2) unlawful possession of a controlled substance, and (3) possession of drug paraphernalia. On June 11, 2002, the probation officer filed a supplemental report charging that Jackson had violated the conditions of his probation by failing to pass a drug test. The trial court held a revocation hearing, during which Jackson admitted that he had failed the drug test. Based on this admission, the trial court revoked Jackson’s probation, reinstating his sentence. Jackson then filed a motion to reconsider, which the trial court denied after a hearing on the motion.

On appeal, Jackson argues four issues:

1. The State failed to present the trial judge with any evidence; therefore, there was insufficient evidence to revoke the defendant’s probation.
2. The trial judge did not address the defendant personally prior to accepting an admission by the defendant.
3. The Court’s order of revocation and imposed incarceration represent an abuse of the trial court’s discretion.
4. The trial judge failed to make written statement or state for the record the evidence relied upon and the reasons for revoking probation.

The general rules of preservation apply in revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This Court has recognized the following exceptions to these general rules: (1) the requirement that there be an adequate order of revocation, and (2) the requirement that a revocation hearing actually be held. Id. This Court has also held that a defendant can argue for the first time on appeal the trial court’s failure to inform him of his right to request counsel to represent him at probation-revocation proceedings. Law v. State, 778 So.2d 249 (Ala.Crim.App.2000).

Issues 1, 2, and 3 are not among the three exceptions to the preservation requirement, and Jackson has raised them for the first time on appeal. Therefore, they cannot be considered by this Court on appeal.

However, this matter is due to be remanded for the trial court to amend its revocation order. The revocation order does not contain a statement of the evidence relied on and the reasons for revoking Jackson’s probation. The State has also requested that the Court remand this case. This matter is therefore remanded to the Henry Circuit Court for that court to issue an order of revocation consistent with this opinion. Due return shall be made to this Court within 56 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, SHAW, and WISE, JJ„ concur.

BASCHAB, J., concurs in the result.

       Note from the reporter of decisions: On June 20, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


author: SHAW, Judge. WISE, Judge,

text:
    Willie J. THOMAS v. STATE of Alabama.
    CR-01-1883.
    Court of Criminal Appeals of Alabama.
    April 25, 2003.
    Rehearing Denied June 13, 2003.

      Willie J. Thomas, pro se.
    Andrew W. Redd, gen. counsel, Department of Corrections, for appellee.
   SHAW, Judge.

Willie J. Thomas appeals the circuit court’s summary denial of his petition for a writ of habeas corpus, wherein he alleged that he was denied due process when he was reclassified as a “heinous offender” and removed from work release based on a change in the criteria of the Department of Corrections (“DOC”) for determining which crimes are “heinous.” After receiving a response from the State, the circuit court summarily denied the petition on April 24, 2002.

I.

Citing Ex parte Berry, 794 So.2d 307 (Ala.2000), Thomas contends that the circuit court erred in summarily denying his petition for a writ of habeas corpus because, he says, he had a liberty interest in remaining on work release and because, he says, he was not afforded a due-process hearing before being removed from work release based on his reclassification as a “heinous offender.”

The State attached to its motion to dismiss Thomas’s petition copies of the following four documents: (1) an affidavit from Paul Whaley II, DOC’s director of. classification; (2) an advance written notice to Thomas of the reclassification hearing; (3) a progress-review form indicating that a reclassification hearing was held and the reasons for reclassifying Thomas as a “heinous offender”; and (4) an inmate summary sheet. These documents reflect that the reclassification hearing complied with the due-process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

However, the record suggests, and, more importantly, the circuit court found, that Thomas was removed from work release before the reclassification hearing was held. As best we can discern from the record, it appears that DOC changed its criteria for determining which crimes were considered “heinous”; that, based on that change, Thomas was reclassified as a “heinous offender” and, as a result of the reclassification, was removed from work release on February 12, 1999; that he was notified on March 2, 1999, of a pending reclassification hearing due to his reclassification as a “heinous offender”; and that on either March 3 or March 4, 1999, a reclassification hearing was held, which, as noted above, fully complied with due process, and after which Thomas was permanently removed from work-release status.

In its order summarily denying Thomas’s petition, the circuit court stated, in pertinent part:

“The petitioner was removed from work release after new eligibility guidelines were enacted by the Department of Corrections. On January 29, 2002, this Court entered an order finding that based upon Ex parte Berry, 794 So.2d 307 (Ala.2000), an inmate has a protected liberty interest in work release status once that status has been granted and is, therefore, entitled to due process regarding his removal from a work release program. Further, in that order, the court designated that the pivotal question remained whether a due process hearing must be held before an inmate may be removed from work release or whether a due process hearing held after removal was sufficient.
“Both the petitioner and respondent have filed responses per this court’s January 29, 2002, order.
“Based upon those responses and the documentation supplied with the amendment filed by respondents, the court finds that a hearing held within a brief period of time after removal meets the requirements of due process. The court further finds that the petitioner received the due process to which he is entitled and that his rights were not violated in this case.”

(C. 40 — 41.) We agree with the circuit court that Thomas was afforded all the process he was due with respect to his removal from work release.

The Alabama Supreme Court’s opinion in Ex parte Berry dealt with the permanent removal from work-release status, not the temporary restraint from participation in the work-release program. The Supreme Court specifically stated in its opinion that Berry’s “work-release status was revoked” on February 12, 1999, before his reclassification hearing on March 18, 1999. 794 So.2d at 308. In this case, unlike in Ex parte Berry, the record suggests that, although Thomas, was temporarily restrained from participating in the work-release program before the reclassification hearing, his work-release status was permanently revoked only after the hearing. In his affidavit, Whaley states the reason for this procedure as follows:

“Inmates being considered for removal from a community-based facility are considered to be above average security risks. Work release centers do not have a classification function nor are they equipped with secure holding facilities for inmates who pose security risks. For that reason, offenders such as Thomas are moved, immediately to a more secure placement to insure the protection of the public and the orderly operation of the facility from which they are being removed.”

(Emphasis added.)

Thus, the dispositive issue in this case is whether due process is violated when DOC temporarily restrains an inmate from participating in the work-release program pending a reclassification hearing — at which the inmate is afforded full due process and after which the inmate is permanently removed from work-release status. This issue was expressly left open in this Court’s opinion in Conners v. State, 837 So.2d 319 (Ala.Crim.App.2001), cert. denied, 837 So .2d 326 (Ala.2002), overruled, Ex parte Deramus, [Ms. 1012372, March 21, 2003] - So.2d - (Ala.2003), and it is an issue of first impression in this state. We hold that there is no violation of due process in temporarily removing an inmate from participation in the work-release program pending a due-process hearing.

“The touchstone of due process is protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). “ ‘Once it is determined that due process applies, the question remains what process is due.’ ” Brock v. Roadway Express, Inc., 481 U.S. 252, 261, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987), quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). That inquiry “must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union, Local 173, AFL-CIO v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The procedures required for due process vary depending on the circumstances; however, “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldñdge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

Thomas had the opportunity to be heard at the reclassification hearing and that hearing was held within a reasonable time after his temporary removal from the work-release program. It would be unreasonable to require DOC to continue to allow inmates whose crimes have been determined to be “heinous” to participate in the work-release program pending a formal reclassification hearing. The State has a legitimate interest in protecting the public from heinous offenders, an interest DOC’s procedure is clearly designed to protect, and that interest greatly outweighs an inmate’s interest in not being temporarily restrained from participating in the work-release program pending a formal hearing. The temporary deprivation suffered by Thomas in this case — and suffered by many inmates as a result of changes in administrative criteria — does not rise to the level of a constitutional deprivation. See generally Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See also Kim v. Hurston, 182 F.3d 113 (2d Cir.1999)(holding that although an inmate had a right to due process before she was formally and permanently removed from the work-release program, she had no right to due process when she was initially physically removed from the program pending the formal hearing); and Greaves v. New York, 958 F.Supp. 142 (S.D.N.Y.1997)(noting that an inmate’s removal from workrelease two days before the disciplinary hearing was not a violation of due process). See also Adams v. Kincheloe, 743 F.Supp. 1393 (E.D.Wash.1990)(assuming that an inmate had a liberty interest in not being placed on a restricted diet, his placement on the restricted diet before his disciplinary hearing was not a violation of due process); and Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir.1989)(noting that “[t]he temporary deprivation of an inmate’s legal materials does not, in all cases, rise to a constitutional deprivation”).

DOC’s procedure — temporarily restraining inmates from participating in the work-release program pending a formal hearing after which the inmates are permanently removed from work-release status — does not violate due process.

Because the record reflects that Thomas was afforded due process in a meaningful time and in a meaningful manner with respect to his permanent removal from work-release status, the circuit court properly denied his habeas corpus petition.

II.

Thomas also contends that the circuit court erred in summarily denying his petition for a writ of habeas corpus because, he says, he should not have been classified as a “heinous offender.” Specifically, Thomas argues that his crime was not conscienceless, pitiless, and unnecessarily torturous to the victim and, therefore, should not be considered heinous.

Thomas’s argument is based on the assumption that the term “heinous” as used by the DOC in classifying inmates is the equivalent of the heinous, atrocious, or cruel aggravating circumstance found to exist in certain death-penalty cases. See, e.g., Ex parte Clark, 728 So.2d 1126, 1138 (Ala.1998)(noting that the especially heinous, atrocious, or cruel aggravating circumstance has consistently been defined to include only “ ‘those conscienceless or pitiless homicides which are unnecessarily torturous to the victim’ ”), quoting Lindsey v. Thigpen, 875 F.2d 1509, 1514 (11th Cir.1989). However, this assumption is incorrect and refuted by Whaley’s affidavit, which states, in pertinent part:

“The term ‘heinous’ as used by the Department of Corrections is not the same as that utilized by the Code of Alabama and was not intended to be. ‘Heinous’ as used in making determinations of internal classification refers to offenses wherein the details are considered to be particularly aggravated. Inmate Thomas is serving time for murder wherein the victim was shot at close range with a shotgun in his own home after having been beaten and choked. Such an offense is considered heinous for purposes of classification.”

(C. 17.) Thomas’s argument that he should not have been classified as a “heinous offender” is clearly meritless.

Based on the foregoing, the judgment of the circuit court summarily denying Thomas’s habeas corpus petition is affirmed.

AFFIRMED.

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

WISE, J., dissents with opinion, which BASCHAB, J., joins.

WISE, Judge,

dissenting.

I dissent from Part I of the majority’s opinion. In Ex parte Berry, 794 So.2d 307 (Ala.2000), just as in this case, DOC removed the inmate from work release before conducting a due-process hearing. In my opinion, the facts of this case are indistinguishable from those in Ex parte Berry, despite the majority’s attempt to categorize Thomas’s pre-hearing removal from work release as “temporary.” At the time Thomas was removed from work release, it was readily apparent that he would be reclassified as a heinous offender and thus ineligible for work-release status. Therefore, I dissent from the majority’s affir-mance of the circuit court’s denial of Thomas’s petition.

My dissent in this case, however, should not be interpreted to mean that I agree with the Supreme Court’s holding in Ex parte Berry. Indeed, as I have written on several occasions, I do not believe that inmates such as Berry and Thomas have a protected liberty interest in remaining on work release; thus, removal from work release does not trigger the due-process requirements established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). See my special writing in Neal v. State, 803 So.2d 586 (Ala.Crim.App.2001) (Wise, J., concurring specially), urging the Supreme Court to revisit its holding in Ex parte Berry.

      . Although Thomas attached no documentation to his petition to support his claims, see § 15-21-4, Ala.Code 1975, the Alabama Supreme Court recently held that documentation is not required in cases involving removal from work release. See Ex parte Deramus, [Ms. 1012372, March 21, 2003] - So.2d -(Ala.2003).

      . Thomas was given advance written notice of the hearing; he was afforded “an opportunity to be heard, to present witnesses, and to present documentary evidence” (C. 19); he was provided with a statement of the evidence relied on; and there was some evidence to support the reclassification.


author: PER CURIAM. WELLS, J.,

text:
    James V. CROSBY, Jr., etc., Petitioner, v. Johnny BOLDEN, Respondent.
    No. SC03-137.
    Supreme Court of Florida.
    Feb. 12, 2004.
    Carolyn J. Mosley, Assistant General Counsel, and Judy Bone, Assistant General Counsel, Department of Corrections, Tallahassee, FL, for Petitioner.
    Deborah Marks of Deborah Marks, P.A., Miami, FL, for Respondent.
    Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, FL, for Florida Parole Commission, Amicus Curiae.
   PER CURIAM.

We initially accepted jurisdiction to review Bolden v. Moore, 865 So.2d 1 (Fla. 1st DCA 2003), a decision of a district court of appeal certifying a question to be of great public importance. Upon reflection and further consideration, we exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed.

It is so ordered.

ANSTEAD, C.J., LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

WELLS, J., dissents with an opinion, in which PARIENTE, J., concurs.

WELLS, J.,

dissenting.

I dissent from the discharge of jurisdiction because the issue raised was correctly certified as a question of great public importance and should be addressed as such. Furthermore, by discharging jurisdiction, the majority allows a decision to stand that reaches inconsistent holdings and I conclude should be quashed.

FACTS AND PROCEDURAL HISTORY

Johnny Bolden was convicted of felonious possession of firearms, possession of a short-barreled shotgun, third-degree-felony aggravated assault, and second-degree-felony aggravated battery, in connection with an incident occurring on December 21, 1992. On April 27, 1993, he was sentenced to four concurrent ten-year terms, less 127 days of jail credit. Pursuant to section 775.087(2)(a), Florida Statutes (1991), Bolden could not begin earning gain time on his assault and battery sentences until he first served a minimum of three years. However, no such limit applied to his shotgun sentence. As a result, he eventually accrued 1334 days of gain time on his shotgun sentence and only 997 days of gain time on his assault and battery sentences.

Pursuant to section 944.275, Florida Statutes (1991), the Department of Corrections (DOC) calculated Bolden’s “tentative release dates” (TRDs) for each of his sentences. His shotgun sentence was calculated as follows: start date of April 27, 1993, plus 3650 days (ten-year sentence), minus 127 days of jail credit, minus 1334 days of gain time, equals a TRD of April 25, 1999. However, due to the difference in gain time accrued on each sentence, his TRDs for the assault and battery sentences fell 337 days later, on March 27, 2000.

Bolden was physically released from incarceration on March 27, 2000. Because he was sentenced as a habitual offender for the shotgun, assault, and battery convictions and was released prior to the expiration of those sentences due to accrued gain time, Bolden then was subject to “an extra post-prison probation-type program” called “conditional release supervision,” as provided under section 947.1405, Florida Statutes (1991). The length of such supervision is established by the Florida Parole Commission (FPC) and “must not exceed the maximum penalty imposed by the court.” § 947.1405(6), Fla. Stat. (1991). In Bolden’s case, the FPC treated his conditional release supervision arising from the shotgun sentence as tolled during the 337 days he remained incarcerated on the other sentences and imposed two concurrent periods of conditional release supervision, one ending after 997 days and a second ending after 1334 days.

Unfortunately, Bolden violated the terms of his conditional release. On November 18, 2000, 236 days after his physical release, Bolden was returned to prison pursuant to section 947.141, Florida Statutes (1991), which provides that the FPC may revoke conditional release upon violation of its terms and “return the releasee to prison to serve the sentence imposed upon him.” Pursuant to the same section, the DOC deemed forfeited all gain time Bolden earned prior to his conditional release. The DOC then recalculated his TRDs for each sentence, taking into consideration one day of time awarded to Bolden by the FPC and 124 days of gain time earned after his return to prison. The DOC’s recalculations for the shotgun sentence were as follows: start date of April 27, 1993, plus 3650 days (ten-year sentence), minus 127 days of jail credit, minus 1334 days of gain time (equals initial TRD), plus 337 days (time between release dates for shotgun sentence and longer sentences), plus 236 days (time between physical release and reincarceration), plus 1334 days (gain time forfeited), minus one day (FPC credit), minus 124 days (gain time awarded since reincarceration), equals recalculated TRD of March 11, 2004. This time his recalculated TRD for the assault and battery charges fell 337 days earlier, on April 9, 2003.

Bolden filed a petition for a writ of mandamus in the circuit court, claiming the DOC erroneously increased his total time of incarceration by adding, in the recalculation of his shotgun sentence, the 337 days between his initial TRD for the shotgun sentence and the date of his physical release on March 27, 2000. In response, the DOC argued that Bolden was neither serving the incarcerative portion of his shotgun sentence nor on conditional release during those 337 days; therefore, in order to ensure he serves the full ten years of the shotgun sentence, his release date for the shotgun sentence must be extended by the total number of days (337 plus 236) on which he was not serving the incarcerative portion of that sentence. To do otherwise, the DOC urged, would grant Bolden prison credit toward his shotgun sentence for time served solely on other charges. The circuit court agreed with the DOC and denied Bolden’s petition, citing Evans v. Singletary, 737 So.2d 505 (Fla.1999).

Bolden next petitioned the First District Court of Appeal for a writ of certiorari. The First District granted the petition and concluded the circuit court had departed from the essential requirements.of the law. See Bolden v. Moore, 865 So.2d 1, 5 (Fla. 1st DCA 2003). The First District distinguished Bolden’s case from this Court’s decision in Evans v. Singletary, 737 So.2d 505, 508-09 (Fla.1999), in which we held that the DOC “may use an unexpired Conditional Release-eligible sentence to determine the length of the supervision, and then toll the running of that supervision period until the inmate has been released from prison,” as well as other similar decisions, by noting they “all involve[d] concurrent sentences for unrelated crimes ... [whereas] ... Bolden was serving concurrent ten-year sentences for related crimes arising from the same incident.” Bolden, 865 So.2d at 3. Turning to relevant statutes, the First District concluded that no statutory support existed for the DOC’s method of recalculating Bolden’s TRD. Having reviewed case law and statutes, the court held:

We conclude that Evans, [State v. Savage, 589 So.2d 1016 (Fla. 5th DCA 1991), Bradley v. State, 721 So.2d 775 (Fla. 5th DCA 1998), Brooks v. State, 762 So.2d 1011 (Fla. 5th DCA 2000)], and the 1991 version of section 947.1405(2) do not support tolling of Bol-den’s conditional-release supervision on the shotgun charge while he continued serving the incarcerative sentences for the aggravated assault and aggravated battery offenses, nor do they mandate that the 337 days he remained in prison on the shotgun charge while pending release on the assault and battery offenses be added to the calculation of a new release date.

Id. at 5.

ANALYSIS

Bolden contests neither the forfeiture of his gain time earned up to the date of his conditional release nor the extension of his recalculated TRD by the 236 days during which he was physically out of prison and on conditional release supervision. The only issue raised is whether the DOC properly extended his recalculated TRD for the shotgun sentence by the 337 days he remained incarcerated while serving the assault and battery sentences. Secretary Crosby, on behalf of the DOC, urges this Court to find that Bolden was neither serving prison time creditable toward his shotgun sentence nor on conditional release during the contested 337 days. Such a finding, he argues, would then require the extension of Bolden’s TRD for his shotgun sentence not only by the 236 days he was actually out of prison but also by the 337 days he was constructively released from the incarcerative portion of that sentence, in order to avoid effectively granting Bolden prison time credit toward the shotgun sentence for a period when he was solely serving the assault and battery sentences. Bolden, on the other hand, argues that when the DOC recalculated his TRDs and retroactively reclassified his gain time as forfeited, it should also have retroactively reclassified the contested 337 days as prison time served on the shotgun sentence so that the total number of days he serves in prison on all concurrent sentences will not exceed ten years minus other lawful credits.

Although the decision below focuses primarily on whether Bolden’s period of conditional release supervision was properly tolled during the 337 days, the parties’ arguments indicate that the primary question to be answered in this dispute is whether those 337 days should be treated as time served and thus credited toward the incarcerative portion of his shotgun sentence upon release revocation. When an offender violates conditional release supervision, has his gain time forfeited, and is returned by FPC to prison “to serve the sentence imposed upon him,” it must naturally follow that the DOC is to extend his TRD from his original sentencing date by the number of days on which he was not serving the incarcerative portion of the sentence to be completed. Clearly, at the time, Bolden was not serving the incarcer-ative portion of his shotgun sentence during the contested 337 days because if not for his other sentences, he would have been conditionally released from the shotgun sentence on April 25, 1999. Therefore, if the 337 days are to be treated as prison time served and credited toward the shotgun sentence, that must be a retroactive construction.

Inexorably, the decision below appears to reach two inconsistent holdings. The decision focuses almost entirely on determining whether Bolden’s conditional release supervision was properly tolled. After lengthy discussion on that point, the court concluded that no authority supported the tolling of conditional release supervision during the 337 days. However, without additional analysis, the court further concluded that no authority “mandate[s] that the 337 days he remained in prison on the shotgun charge while pending release on the assault and battery offense be added to the calculation of a new release date.” Bolden, 865 So.2d at 5. The reference to the contested period as “the 337 days he remained in prison on the shotgun charge” does not appear to be consistent with both parties’ agreement on the fact that Bolden would have been released on April 25, 1999, rather than March 27, 2000, if not for the lengthier incarceration periods of the assault and battery sentences. The first holding — that the DOC and FPC lacked authority to toll Bolden’s conditional release supervision while he continued serving the incarcera-tive portions of his assault and battery sentences — dictates that Bolden’s conditional release supervision arising from the shotgun sentence began on April 25, 1999. But the latter — that the 337 days could not be added to the recalculation of his TRD after release revocation — effectively grants Bolden prison time credit toward his shotgun sentence for the same period. I do not believe that it can be correct to find that Bolden was simultaneously on supervised release from and serving the incar-cerative portion of the same sentence.

If Bolden’s conditional release supervision was not properly tolled but rather began on April 25, 1999, it was error for the First District to also hold the contested 337 days could not be added in the recalculation. On the other hand, if his conditional release supervision was properly tolled, the question that would follow is whether those 337 days should be treated as prison time creditable toward the shotgun sentence or as a period when both the incarcerative portion of his shotgun sentence and his conditional release supervision were tolled.

I conclude that Bolden’s conditional release supervision was properly tolled. Section 947.1405 does not directly address the issue, but its language plainly provides that supervision begins upon release and ends no later than when the offender’s maximum sentence would have ended had conditional release not been granted. As this Court has noted, “Conditional Release (as opposed to Control Release, Provisional Credits, and Administrative Gain Time) is not an early release program. Conditional Release is an extra post-prison probation-type program.” Evans, 737 So.2d at 507. Its purpose is to ensure continued supervision after incarceration of those offenders the Legislature has found to provide the greatest threat to the public safety. See § 947.1405(8), Fla. Stat. (2003). In Evans, this Court relied on those principles for support of tolling:

[T]here is legitimate authority for the proposition that the supervision period should be tolled until release from prison. In State v. Savage, 589 So.2d 1016 (Fla. 5th DCA 1991), for example, the defendant was sentenced to three years to be followed by one year on probation. While serving the sentence, the defendant was convicted of an additional crime and a new, completely separate sentence was imposed. This Court rejected the contention that the one-year probation began at the end of the three-year sentence while the defendant was still in prison, finding that the probation was tolled until release from prison. This Court stated:
Simple logic would seem to dictate that, where a defendant is incarcerated in another jurisdiction, a probationary period from an unrelated sentence would be tolled since a probationary term should not be allowed to expire simply because a defendant has decided to incur new prison time as a result of a separate and distinct offense.
Id. at 1018. While in Savage the two sentences were from different states, we believe that the same principle should apply here. It would be contrary to common sense to have Evans serve his Conditional Release supervision in prison because he is already under a significant restraint there....
In this case, we conclude that if the legislature determined that there was a need for additional post-prison supervision for these more at-risk releasees, requiring that they serve their Conditional Release supervision in prison would not make any sense. Therefore, tolling the supervision until the inmate has been released from prison would be the most logical choice.

Evans, 737 So.2d at 508 (emphasis added). Because this “common sense” approach holds true in the present case, the holding of Evans, that the State may use an unexpired conditional release-eligible sentence to determine the length of the supervision and toll the beginning of the supervision period until physical release also appears applicable to the present case.

Because conditional release is a probation-type program, “the rehabilitative concept of probation which presupposes that the probationer is not in prison confinement” should likewise apply. However, the general rule applying to probation that the supervisory portion of a split sentence should immediately follow the incarcera-tive portion of that sentence, upon which the First District inherently relied below to distinguish the present case from Evans, is inapplicable to conditional release. Conditional release supervision is not a component of a split sentence and indeed is not a sentence at all.

[The conditional release program] simply requires that certain inmates will complete their sentences outside of prison, but still under a degree of supervision. As we recognized in Duncan v. Moore, 754 So.2d 708, 710 (Fla.2000), conditional release is not an increased punishment program at all, but rather an assistance program designed to “help these former inmates in bridging the gap between prison and the outside world.”
Further, conditional release is not a form of sentence, and it is not imposed by a court. Although the statute may impose an undesirable condition upon the release of those subject to the statutory requirements by converting gain time that might be awarded into postre-lease supervision, neither gain time nor conditional release is a true part of a criminal sentence. An inmate’s eligibility for conditional release is established by statute. Inmates who are subject to conditional release are identified and their placement on conditional release is required, not by the sentencing court, but by the Parole Commission.

Mayes v. Moore, 827 So.2d 967, 971 (Fla.2002). Thus, it makes no difference that Bolden’s concurrent sentences were for related crimes. His conditional release supervision arising from the shotgun sentence was properly tolled until his physical release from incarceration so that the purpose and post-prison nature of the program would be preserved.

Having determined Bolden’s conditional release supervision was properly tolled during the contested 337 days, I turn to the question of whether those days should be treated as prison time creditable toward the shotgun sentence or as a period when the incarcerative portion of his shotgun sentence was likewise tolled. Because Bolden’s sentences were concurrent, I conclude the 337 days he remained incarcerated on the assault and battery charges should be treated, upon release revocation, as prison time creditable toward the shotgun sentence as well. Although nothing in the Florida Statutes directly addresses this issue, I find implicit in the nature of “concurrent” sentences that time previously served on a concurrent sentence should be credited toward all other concurrent sentences.

CONCLUSION

Because I find Bolden should have bene-fitted from the 337 days of his incarceration on the assault and battery charges through the crediting of prison time toward his shotgun sentence, I would conclude the DOC erred in extending his recalculated TRD for that sentence by those 337 days. Although this is the ultimate conclusion reached in the decision below, I would nonetheless quash that decision to the extent its analysis contradicts the above analysis.

PARIENTE, J., concurs.

      . Section 944.275(2)-(3), Florida Statutes (1991), provides that the DOC must calculate for each prisoner a " 'maximum sentence expiration date’ which shall be the date when the sentence or combined sentences imposed on a prisoner will expire,” and a " 'tentative release date' which shall be the date projected for the prisoner's release from custody by virtue of gain-time granted or forfeited.”

      . Bolden's TRD for his fourth sentence occurred prior to this date and is irrelevant to this dispute as that sentence was not subject to conditional release.

      . Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999).

      . For example, this principle underlies section 944.275(c), Florida Statutes (1991), which provides that, when an escaped prisoner or parole violator is returned to custody, the DOC must recalculate and extend the inmate's maximum sentence expiration date by the amount of time the inmate was "not in custody.”

      . Porter v. State, 585 So.2d 399, 400 (Fla. 1st DCA 1991).

      . While the FPC’s tolling of Bolden’s conditional release supervision was proper, its imposition of two terms of supervision, one for 997 days and a second for 1336 days, appears erroneous. Section 947.1405(6) states "The length of supervision must not exceed the maximum penalty imposed by the court.” Reading this in conjunction with section 944.275(2)(a), Florida Statutes (1991), which provides the DOC "shall establish for each prisoner sentenced to a term of years a 'maximum sentence expiration date,' which shall be the date when the sentence or combined sentences imposed on a prisoner will expire,” I conclude that any conditional release supervision imposed upon Bolden could not run past his maximum sentence expiration date. At the time of Bolden's conditional release, that date fell 997 days later.

      . The DOC and FPC argue this conclusion could lead to undesirable results in cases in which the time served between a shorter, conditional-release-eligible sentence and a longer, concurrent sentence is greater than the amount of gain time forfeited and to be served upon revocation. Indeed, in such cases, the offender's return to prison "to serve the sentence imposed upon him” would be an ineffective deterrent to violations of conditional release as the sentence would be entirely fulfilled by the prison credit deriving from the time served on the longer, concurrent sentence. However, I note that the FPC's authority is not limited to the return of the releasee to prison "to serve the sentence imposed.” Section 947.141(3) also provides the FPC may "enter such other order as it considers proper.” Because the extent of this additional grant of authority is not clear and because the effectiveness of the conditional release program in certain circumstances is at stake, I would urge the Legislature to take up this issue in legislation addressing the interaction of concurrent sentences of varying lengths and the conditional release program.

      ."Concurrent sentences” is defined as "[t]wo or more sentences of jail time to be served simultaneously. For example, if a defendant receives concurrent sentences of 5 years and 15 years, the total amount of jail time is 15 years.” Black’s Law Dictionary 1367 (7th ed.1999).