author: BROWN, Justice.

text:
    William T. CHESSER v. AMSOUTH BANK, N.A.
    1002021.
    Supreme Court of Alabama.
    Sept. 27, 2002.

      G. Daniel Evans of The Evans Law Firm, P.C., Birmingham, for appellant.
    James S. Witcher III of Gladden & Si-nor, P.C., Birmingham, for appellee Am-South Bank, N.A.
    Rik S. Tozzi of Starnes & Atchison, L.L.P., Birmingham, for defendant Protective Life Insurance Corporation on application for rehearing.
   On Application for Rehearing

BROWN, Justice.

The opinion of June 28, 2002, is withdrawn and the following opinion is substituted therefor.

William T. Chesser (“Chesser”) appeals from the trial court’s order compelling him to arbitrate his claims against AmSouth Bank, N.A. (“AmSouth”). We affirm.

Facts and Procedural History

On May 4, 1998, Chesser purchased a used 1995 GMC truck from Premiere Chevrolet, Inc., in Bessemer. AmSouth financed the purchase of the truck. After negotiating the terms of his purchase with a salesperson, Chesser met with Chris Ferguson, the business manager at Premiere Chevrolet, to finalize the necessary paperwork and to complete the sale. At that time, Chesser executed a buyer’s order, an installment sales contract and security agreement, and an application for credit-disability and credit-life insurance coverage from Protective Life Insurance Corporation of Alabama (“Protective Life”).

The buyer’s order provided:

“Purchaser acknowledges the vehicle has been traveling in interstate commerce and had an impact on interstate commerce. In the event any dispute(s) under the terms of this contract or sale arise (including, but not limited to, the terms of agreement, the condition of the motor vehicle sold, the conformity of the motor vehicle sold to the contract, the representations, promises, undertakings or covenants made by Premiere Chevrolet, Inc. in connection with the sale of the motor vehicle, or otherwise dealing with the motor vehicle, any terms of financing in connection therewith, or any terms of any credit life and/or disability insurance purchased simultaneously herewith, or extended service or maintenance agreements(s)), Premiere Chevrolet, Inc. and the purchaser(s) agree to submit such dispute(s) to binding arbitration, pursuant to the provisions of 9 U.S.C. § 1, Et Seq., and according to the commercial rules of the American Arbitration Association then existing, in Bessemer, Alabama.”

Similarly, the retail installment contract contained the following provision:

“[A]ny controversy, claim, dispute, or disagreement arising out of, in connection with, or relating to (1) the interpretation, negotiation, execution, collat-eralization, administration, repayment, modification, or extension of this Agreement or any assignment thereof; (2) any charge or cost incurred pursuant to this Agreement; (3) the collection of any amounts due under this Agreement or any assignment thereof; (4) an alleged tort relating in any way to this Agreement, collateral under this Agreement or any insurance or mechanical repair contract purchased pursuant to this Agreement; or (5) any breach of any provision of this Agreement, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association....”

Finally, the certificate of insurance Chesser received when he applied for the credit-life and credit-disability insurance coverage provided:

“The issuance of this coverage takes place in and substantially affects interstate commerce. Any dispute, controversy, or cause of action by the Policyholder, you or your beneficiary, or their respective assigns (each referred to in this Arbitration section as ‘claimant’) arising out of or relating in any way to, this insurance, or to the sale or solicitation of this insurance, shall be settled by arbitration under the provisions of the Federal Arbitration Act, 9 U.S.C., section 1, et seq. Such arbitration shall be governed by the rules of the American Arbitration Association.... ”

Approximately seven months after he purchased the truck, Chesser underwent heart surgery and was unable to continue making the installment payments due on the AmSouth loan. Chesser contacted Premiere Chevrolet and told them that he wished to make a claim for benefits under the credit-disability policy he had purchased from Protective Life when he purchased the truck. Pursuant to Chesser’s request, Premiere Chevrolet forwarded Chesser’s claim to Protective Life. Protective Life subsequently denied Chesser’s claim and refunded to AmSouth, as the lienholder on the vehicle, the $1,141.38 premium. AmSouth subsequently repossessed the truck on April 29, 1999, after Chesser failed to make several payments. Chesser maintains that although AmSouth received the refunded premium before it repossessed the truck, AmSouth failed to apply the refunded premium to the arrear-age he owed on the loan. After it repossessed the truck, AmSouth hired RMS Re-marketing Services to prepare the truck for sale at an automobile auction in Moody, Alabama.

On March 22, 2000, Chesser sued Am-South, Protective Life, and Ferguson, alleging breach of contract, fraud, negligent failure to obtain insurance, wrongful possession and conversion, and bad-faith refusal to pay an insurance claim. Am-South responded by asserting that it was entitled to arbitrate Chesser’s claims, and it moved to stay the action pending arbitration or, alternatively, to dismiss the action. Ferguson also moved to dismiss the action and to compel arbitration. Protective Life answered the complaint, denying all allegations. After the parties had briefed and argued the motions to compel arbitration, the trial court granted the motions. Although Protective Life’s attorneys had previously notified Chesser that it would not seek to enforce the arbitration provision contained in the certificate of insurance, it moved for a joint and consistent disposition after being served with the other parties’ motions to compel arbitration. Accordingly, the trial court’s order stated:

“Motion to compel arbitration by Am-South Bank and joined in by the other defendants is granted. This case is stayed and is ordered to arbitration. The case is dismissed due to the arbitration. Costs taxed as paid.”

This appeal followed.

Analysis

“ ‘[T]he standard of review of a trial court’s ruling on a motion to compel arbitration at the instance of either party is a de novo determination of whether the trial judge erred on a factual or legal issue to the substantial prejudice of the party seeking review.’ ” Vann v. First Cmty. Credit Corp., 834 So.2d 751, 752 (Ala.2002)(quoting Ex parte Roberson, 749 So.2d 441, 446 (Ala.1999)).

A section of the Federal Arbitration Act (“the FAA”), 9 U.S.C. § 2, provides:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

“To satisfy the interstate-commerce criterion, the involvement of, or effect on, interstate commerce must be substantial.” Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala.1999)(citing Southern United Fire Ins. Co. v. Knight, 736 So.2d 582, 585 (Ala.1999)). Because AmSouth sought to compel arbitration of Chesser’s claims, it had the burden of proving that the contract called for arbitration and that the contract evidenced a transaction that substantially affected interstate commerce. See Southern United Fire Ins. Co. v. Knight, 736 So.2d at 586.

AmSouth maintains that it met its burden of proving that the transaction had a substantial effect on interstate commerce because the retail installment agreement signed by Chesser indicated that he wished to purchase credit-disability and credit-life insurance, that he wished to purchase an extended service contract, and that he promised to maintain comprehensive and collision automobile insurance. We agree. The purchase of credit-life and credit-disability insurance was effectuated by Premier Chevrolet s forwarding a check to Protective Life in California. Similarly, the purchase of the extended service contract was effectuated by Premier Chevrolet’s forwarding a check to “MS Dealer Service Corporation,” which is headquartered in Florida. Finally, Chesser obtained insurance providing comprehensive and collision coverage from State Farm Insurance Company, which is headquartered in Illinois.

Chesser’s commitments to purchase the credit-life and credit-disability insurance, the extended service contract, and the comprehensive and collision insurance were made concurrently with his purchase of the vehicle. In fact, a portion of the loan proceeds was used to pay the premium on the credit-disability and credit-life insurance and to pay the cost of the extended service contract. “We cannot employ an unrealistically narrow construction of the ‘transaction’ concept so as to limit our scrutiny to the event transpiring at the time of the sale.” Green Tree Fin. Corp. v. Lewis, 813 So.2d 820, 824 (Ala.2001). Considering the aggregate effects the transaction has on interstate commerce, we hold that this transaction substantially affected interstate commerce so as to invoke application of the FAA. Accordingly, we affirm the trial court’s order compelling Chesser to arbitrate his claims against AmSouth.

APPLICATION GRANTED; OPINION OF JUNE 28, 2002, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

HOUSTON, SEE, LYONS, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

      . Protective Life and Ferguson are not parties to the appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert COMALANDER, Jr. v. George G. SPOTTSWOOD and Amy H. Spottswood.
    1011020.
    Supreme Court of Alabama.
    Sept. 27, 2002.

      J. Casey Pipes of Helmsing, Leach, Her-long, Newman & Rouse, P.C., Mobile, for appellant.
    J. Burruss Riis of Hand Arendall, L.L.C., Mobile, for appellees.
   PER CURIAM.

Robert Comalander, Jr., appeals from the trial court’s denial of his postjudgment motion made pursuant to Rule 59 and Rule 60, Ala. R. Civ. P. We reverse the judgment of the trial court and remand the case to that court with directions.

Comalander contracted with George and Amy Spottswood (“the Spottswoods”) to build a house for the Spottswoods. After the house was built, Comalander sued the Spottswoods, alleging breach of contract and seeking to enforce a materialman’s hen in the amount of unpaid invoices for the construction of the house. The Spotts-woods counterclaimed, alleging negligence, fraud, and slander of title. Although Co-malander had retained his own attorney to represent him in his claims against the Spottswoods, Comalander’s insurance carrier provided an attorney to defend Coma-lander against the Spottswoods’ counterclaims. Thus, when the case proceeded to trial Comalander was represented by two attorneys, one representing him in his claims against the Spottswoods and the other representing him in defense of the Spottswoods’ counterclaims.

During the charge conference, the trial court stated that it would not charge the jury that the parties were entitled to a setoff. Instead, the trial court stated that it, not the jury, would calculate the amount of any setoff, in the event the jury awarded damages on both Comalander’s and the Spottswoods’ claims. The trial court also stated during the charge conference that it would calculate and fix the interest of an award in favor of Comalander. (Comalan-der’s invoices provided that a charge of 18% per year would be added to any balance remaining unpaid after 30 days.) Neither party objected to the trial court’s rulings at the charge conference.

While the jury was deliberating, Coma-lander’s insurance counsel, with the knowledge and consent of Comalander’s personal counsel, entered into a settlement agreement with the Spottswoods. Pursuant to the agreement, Comalander was to pay the Spottswoods a maximum amount of $400,000 and a minimum amount of $200,000. The agreement stated that there was to be “[n]o appeal on counterclaim issues by either party.” It further stated: “This agreement is to settle all claims [the] Spottswoods have against Co-malander.” Finally, it stated: “This agreement waives no defenses as to Coma-lander’s claims against the Spottswoods.” Comalander’s insurance counsel and the Spottswoods’ counsel signed the agreement.

The jury returned a verdict in favor of Comalander in the amount of $80,766.11. The jury also returned a verdict in favor of the Spottswoods, on their counterclaims, in the amount of $41,300. The trial court set off the two verdicts and then added interest to the final amount. Thus, the trial court entered a judgment in favor of Co-malander in the sum of $89,466 plus interest in the amount of $13,369.

The verdict in favor of the Spottswoods and against Comalander was substantially below the $200,000 floor set in the settlement agreement. Zürich American Insurance Company, Comalander’s insurance carrier, has tendered two checks to the Spottswoods, totaling $200,000. According to the Spottswoods’ brief, those checks have not been negotiated because of “a misrepresentation [in the cover letter] concerning the purpose of the payment.”

Comalander filed a postjudgment motion under Rule 59, Ala. R. Civ. P., to alter or amend the trial court’s judgment, and Rule 60, Ala. R. Civ. P., for relief from the judgment, arguing that because, the parties had already entered into a settlement agreement, pursuant to which the Spotts-woods would be paid $200,000, the verdict in his favor should not have been set off. In the alternative, Comalander argued that the trial court erred when it set off the amount of Comalander’s verdict before adding interest, thereby reducing his entire verdict. The trial court held a hearing on the matter and denied Comalander’s postjudgment motion. The trial court stated:

“The court is of the opinion that the judgment reflects the agreement reached at the charge conference. The plaintiff ..., on his individual claims, was not a party to the undisclosed settlement agreement reached between his insurance carrier and the defendant’s counter plaintiffs; therefore, the court denies the plaintiff’s posttrial motions.”

Comalander appeals the denial of his post-judgment motion.

Comalander argues that the trial court erred when it set off the verdicts in favor of Comalander and the Spottswoods. According to Comalander, when the Spotts-woods agreed to settle their counterclaims against Comalander for a maximum amount of $400,000 and a minimum of $200,000, there remained no claims against Comalander to set off against the verdict in his favor. Comalander argues that the trial court’s setoff of the verdict in his favor improperly allowed the Spottswoods to recover twice for the same injury. In the alternative, Comalander argues that the trial court improperly set off the verdicts before fixing interest on Comalan-der’s verdict.

As to Comalander’s substantive claims, the Spottswoods argue that Comalander waived his right to challenge the setoff of his verdict because Comalander did not object to the trial court’s ruling during the charge conference that it, and not the jury, would compute the setoff. The Spotts-woods also argue that by paying the $200,000 minimum required under the settlement agreement, Comalander waived his right to challenge the trial court’s application of the setoff. Further, the Spottswoods argue that whether to allow a setoff lies within the sound discretion of the trial court. The Spottswoods say that it was within the trial court’s discretion to determine how it would apply the setoff and calculate the interest in this case. Finally, the Spottswoods argue that setoff is a defense, and, therefore, the clear language of the settlement agreement reserved the Spottswoods’ right to claim a setoff. Comalander argues, in response, that setoff is not a defense but rather a counterclaim the Spottswoods waived by signing the settlement agreement.

The Spottswoods have also filed a motion to dismiss Comalander’s appeal, arguing that the settlement agreement prohibited either party from appealing. The settlement agreement between Comalan-der and the Spottswoods contained a provision stating, “No appeal on Counterclaim issues by either party.” The Spottswoods argue that, in the event this Court agrees with Comalander and holds that a setoff is a counterclaim, the settlement agreement prevents Comalander from appealing as to the setoff issue.

Comalander argued in his postjudgment motion that, based upon the settlement agreement, the Spottswoods agreed to accept a minimum payment of $200,000 and a maximum of $400,000 to settle all claims the Spottswoods had against Comalander. According to that motion, because his insurance company, acting on his behalf, had tendered payment of the $200,000 stated in the settlement agreement, the setoff of Comalander’s jury verdict allowed the Spottswoods to recover twice for the same injury. The Spottswoods then filed a motion in opposition to Comalander’s Rule 59 and 60 motion; in their motion the Spotts-woods argued that the settlement agreement stated that the Spottswoods waived no defenses as to Comalander’s claims against them, and setoff, they argued, is a defense. Thus, both Comalander’s Rule 59 and 60 motion to alter or amend the trial court’s judgment and the Spottswoods’ subsequent motion in opposition to Coma-lander’s Rule 59 and 60 motion specifically placed before the trial court the issue of the construction of the settlement agreement.

The trial court’s order, recorded in the case action summary, clearly indicates that the trial court did not interpret the settlement agreement when it ruled on Coma-lander’s Rule 59 and 60 motion. Rather, the trial court apparently declined to engage in construction and enforcement of the settlement agreement based upon its finding that Comalander, as to his individual claims, was not a party to the settlement agreement. However, Comalander and the attorney representing Comalander on his claims against the Spottswoods have both stipulated that they were advised of the settlement agreement and that they consented to the settlement agreement.

This Court has held that all settlement agreements entered into by attorneys at the trial level are governed by § 34-3-21, Ala.Code 1975. Holmes v. Sanders, 729 So.2d 314, 316 (Ala.1999); Ex parte Sims, 627 So.2d 380 (Ala.1993). Section 34-3-21 provides: “An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.” Comalander was represented by two attorneys in the case — one of whom represented Comalander in his claims against the Spottswoods and the other represented him in defense of the Spottswoods’ counterclaims. However, both attorneys, as far as the record reflects, had full authority to act on behalf of Comalander. The record suggests that Comalander’s attorneys had a de facto division of authority; however, the record does not contain a document dividing their authority. While the two attorneys may have had separate responsibilities at trial as a matter of convenience, each attorney filed an appearance on behalf of Comalander in his individual capacity and each had the authority to enter into a settlement agreement on Comalander’s behalf. Comalander’s insurance counsel defended Comalander against the Spottswoods counterclaims, and he therefore had the authority to bind Comalander to the terms of a settlement agreement.

In general, the decision whether to grant or to deny a postjudgment motion filed pursuant to Rule 59 or Rule 60 is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless the trial court abused its discretion. See Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). In the present case, the parties’ postjudgment motions raised the issue of the construction of the settlement agreement. In order to dispose of the postjudgment motions, the trial judge had to interpret the settlement agreement and render a judgment consistent with its interpretation of the settlement agreement. Because the record indicates that the trial court did not consider the terms of the settlement agreement when it ruled on Comalander’s postjudgment motion, we reverse the judgment of the trial court and remand the case for the trial court to construe the terms of the settlement agreement and to rule on Comalander’s postjudgment motion in accordance with its construction of the settlement agreement. In doing so, we do not reach the merits of Comalander’s substantive claims.

REVERSED AND REMANDED WITH DIRECTIONS.

MOORE, C.J., and HOUSTON, SEE, BROWN, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ„ concur.

LYONS, J., recuses himself.

      . The information concerning the knowledge and consent of Comalander's personal counsel was provided by a stipulation filed after the trial court denied Comalander's post-judgment motion and was signed by Coma-lander's two attorneys.


author: CRAWLEY, Judge.

text:
    Waymon Eugene GATLIN v. STATE of Alabama.
    2010065.
    Court of Civil Appeals of Alabama.
    Aug. 9, 2002.
    Rehearing Denied Sept. 27, 2002.

      Becky Meyer, Decatur, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   CRAWLEY, Judge.

Waymon Eugene Gatlin appeals from a judgment ordering that $4,100 in currency be condemned as contraband and forfeited to the State because, the trial court found, the money “was used or intended to be used in a transaction for controlled substances.” We reverse.

During the State’s case-in-chief, the following evidence was elicited: In the early morning hours of July 4, 2001, Officer David Hicks of the Trinity Police Department stopped a Chevrolet truck for speeding. Gatlin was driving the truck. Hicks noticed the smell of alcohol on Gatlin’s breath and asked him to perform three field-sobriety tests. When Gatlin failed all three tests, Officer Hicks arrested him for driving under the influence of alcohol. He was not charged with the use of any illegal drug.

Officer Hicks and two other officers then searched Gatlin’s vehicle. Among other things, they found an open beer can in the truck. On top of the console between the seats the officers found a blue prescription bottle containing eight phis later determined to contain the controlled substance dihydrocodeinone. The prescription label on the bottle had been partially torn and there was no patient name, but the word “Lorcet” was visible. When the officers asked Gatlin about the pills, he said they were painkillers, but they were not his, and he did not know how they came to be in his truck. Inside the console, the officers found $4,100 in $100 bills. Except for two loose bills, the money was packaged in two bank wrappers marked “Heritage Bank” and stamped “April 9, 2001.” Under the money was a small cellophane bag containing a green leafy substance later determined to be .03 ounces, or 1 gram, of marijuana. Gatlin denied that the marijuana was his. Also inside the console was one loose yellow pill later determined to contain the controlled substance oxycodone. Gatlin disclaimed any knowledge of the yellow pill. Gatlin told the officers the money came from his having cashed two or three paychecks. Trinity Police Chief Chris McLemore testified that the day after Gatlin was arrested and the currency was seized, Gatlin’s mother telephoned him and said that the money was hers. On cross-examination by Gat-lin’s lawyer, Officer Hicks stated that Gat-lin had a reputation as a drug dealer.

At trial, Gatlin denied that he was a drug dealer or a drug user. He said that he had never been arrested by officers of the Trinity Police Department. He testified that he had been employed for four years at BE & K Construction Company; that he made $22 per hour; that he worked 40 hours per week plus overtime; and that he had had earnings in excess of $50,000 each year for the past two years. He introduced, and the trial court admitted into evidence, two income tax returns showing a gross income of $57,874 for the year 2000 and $52,647 for the year 1999. Gatlin stated that as a condition of his employment, he was required to take random drug tests. He introduced, and the trial court admitted into evidence, documents indicating that he had passed a number of drug tests administered by his employer, as well as an independent test to which he had submitted 20 days after his arrest.

Gatlin testified that at the time of his arrest he was separated from his wife, was living in a local motel, and was saving money to buy a camper in which to live. He said that he was going through a divorce; that he usually cashed his paychecks and did not deposit them into a checking account. He stated that he had cashed three recent paychecks totaling about $3,800, and had recently sold a pickup truck for $5,800 in cash to his friend Paul Rollin. Rollin testified that he paid Gatlin for the truck in $100 bills, which he obtained from Heritage Bank. The record contains a bill of sale for the truck, dated April 10, 2001.

Gatlin said that after his arrest he learned that the pills in the blue prescription bottle belonged to his brother-in-law, who often borrowed his truck, and who had been prescribed painkillers after recent back surgery. Gatlin offered, and the trial court admitted into evidence, a prescription issued in the name of Gatlin’s brother-in-law for the same pills found in Gatlin’s truck.

At the close of the evidence, the trial court stated:

“This is a hard one. The burden of proof is not beyond a reasonable doubt. If it was, I couldn’t find for the state. But I do believe based on the totality of the circumstances, weighing the credibility of the witnesses, the state has carried the burden, and, therefore, I do grant the state’s petition and condemn the funds.”

To establish a prima facie case under § 20-2-93(4), Ala.Code 1975, the State was required to prove

“ ‘that the money seized was: (1) furnished or intended to be furnished by [Gatlin] in exchange for a controlled substance; (2) traceable to such a transaction; or (3) used or intended to be used to facilitate a violation of any law of this state concerning controlled substances.’ ”

Thompson v. State, 715 So.2d 224, 226 (Ala.Civ.App.1997) (quoting Wherry v. State ex rel. Brooks, 637 So.2d 890, 892 (Ala.Civ.App.1994)).

The mere proximity of the drugs to the cash in Gatlin’s vehicle did not satisfy the State’s burden of proof. See Thompson v. State, supra. Our forfeiture cases have found the following circumstances to be indicative of contemplated or completed drug transactions: a large quantity of drugs, see, e.g., Shepherd v. State, 664 So.2d 238 (Ala.Civ.App.1995) (21 pounds of marihuana); drugs packaged for sale, see, e.g., Pointer v. State, 668 So.2d 41 (Ala.Civ.App.1995); drug paraphernalia or accouterments indicating sale, such as “baggies” or scales, see, e.g., Johnson v. State, 667 So.2d 105, 108 (Ala.Civ.App.1995). None of those circumstances, nor an equivalent circumstance, is present in this case.

Our forfeiture cases have also remarked on the inherent incredibility of a defendant’s explanation for having in his or her possession a large quantity of cash. See, e.g., Harris v. State, 821 So.2d 177 (Ala.2001) (finding inherently incredible a defendant’s story that the source of $120,000 in cash was a $90,000 payment the defendant received upon her husband’s death 17 years earlier, an amount that the defendant said had increased to $120,000 despite the fact that the defendant admitted that she kept the money at home in shoe boxes and lent some to friends, but charged no interest). See also Vaughn v. State, 655 So.2d 1039, 1041 (Ala.Civ.App.1995) (noting that the defendant, who was found with a large amount of cash, was unemployed and had “no visible means of support”). In the present case, Gatlin was gainfully employed and presented plausible explanations for the presence of the cash in his vehicle.

On review of a forfeiture judgment after an ore tenus proceeding, the trial court’s judgment is presumed correct unless the record shows it to be contrary to the great weight of the evidence. See State v. Smith, 578 So.2d 1374 (Ala.Civ.App.1991). After reviewing the record, we conclude that the judgment in this case is against the great weight of the evidence. Although the evidence presented by the State might lead one to suspect that Gatlin was involved in illegal drug activity, mere suspicion is insufficient to support a judgment of forfeiture. See Thompson v. State, 715 So.2d at 225; Robbs v. State ex rel. Whetstone, 674 So.2d 1301 (Ala.Civ.App.1995). The State presented no evidence indicating that Gatlin had participated in or that he was going to participate in a drug transaction. “To say that [Gatlin] had either just sold drugs or was on his way to buy drugs would be merely guessing.” Thompson v. State, 715 So.2d at 226.

The judgment of the circuit court is reversed, and the cause is remanded for the circuit court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

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

THOMPSON, J., dissents.


text:
    J.A.H. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2010505.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.

      Nancy P. Vernon of Maloney & Vernon, L.L.C., Jacksonville, for appellant.
    William H. Pryor, Jr., atty. gen.; and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for appellee.
   CRAWLEY, Judge.

J.A.H. (“the father”) appeals from a judgment terminating his parental rights. After their child was removed from their home by the Calhoun County Department of Human Resources (“DHR”), M.H. (“the mother”) and the father completed an affidavit of substantial hardship and requested that an attorney be appointed to represent them. The trial court appointed Wendy Draper to represent the parents. Some time before December 2001, the father and the mother separated, and the father was incarcerated. At an untran-scribed hearing, the mother informed the trial court of those developments. At that hearing, Ms. Draper was relieved of representing the father because of a potential conflict of interest. The father, who was not present at this hearing, alleges in a letter he later wrote to Ms. Draper that he was informed that he would be appointed new counsel when she ceased representing him. DHR filed a motion in December 2001 requesting the trial court to appoint counsel for the father; the trial court denied the motion, indicating that the father had not requested counsel.

At the termination hearing, Ms. Draper presented the trial court with the letter from the father, who was still incarcerated, in which he asked why he had not heard from the attorney he believed the court was appointing in Ms. Draper’s stead. The trial court stated that the father’s request for counsel came too late. After a brief termination hearing, consisting of only the testimony of a DHR caseworker, the trial court terminated the father’s rights. The father filed a notice of appeal and requested that appellate counsel be appointed. The trial court granted that request.

The father argues that the trial court erred to reversal by failing to appoint him an attorney once Ms. Draper was relieved of representing him. DHR responds by arguing that the father never requested an attorney after Ms. Draper was relieved of representation and that he cannot now complain of an error into which he led the trial court. We hold that the father, having requested counsel at the earlier stage of the proceeding, was not required to make an additional request, and we conclude that the trial court erred by failing to appoint substitute counsel for the father in this case.

An indigent parent facing the termination of his parental rights is entitled to the appointment of counsel. Ala.Code 1975, § 12-15-63; Ex parte Shuttleworth, 410 So.2d 896 (Ala.1981); Smoke v. State Dep’t of Pensions & Sec., 378 So.2d 1149 (Ala.Civ.App.1979); In re Ward, 351 So.2d 571 (Ala.Civ.App.1977). The father in the present case, pursuant to the statute, requested appointed counsel on June 16, 1999. In accordance with the statute, the trial court appointed Ms. Draper to represent both the mother and the father on that same date. At some point, however, the trial court relieved Ms. Draper of representation of the father and left the father, who had already requested counsel, to defend the termination petition without benefit of counsel.

DHR argues that the trial court should not be expected repeatedly to inform a parent of his or her right to appointed counsel in dependency and termination cases, appearing to believe that informing a parent of that right once should suffice. We do not necessarily disagree. However, by that same token, we find it unduly burdensome and overly technical to require a parent to repeatedly request the appointment of counsel when he or she has previously requested counsel and has already proven his or her entitlement to such counsel. We do not conclude that the trial court in the present case erred by failing to inform the father of his right to counsel; instead, we conclude that the trial court erred by requiring the father to repeat his request for counsel.

In the criminal context, when a defendant has established that his appointed attorney should be relieved of representation because of a conflict of interest, the trial court must substitute new counsel. See Robinson v. State, 581 So.2d 1197, 1200 (Ala.Crim.App.1990) (quoting 2 W. LaFave & J. Israel, Criminal Procedure § 11.4 at 36-37 (1984)); see also Rule 1.16(d), Ala. R. Prof. Cond. Although the basis of the constitutional right to counsel in criminal cases differs from the statutory right to counsel in termination-of-parental-rights cases, we see enough of a parallel between the two rights in this context to require a trial court that relieves an appointed attorney in a termination case of representation to appoint substitute counsel so as to protect the parent’s already exercised right to counsel under § 12-15-63. The trial court’s failure to appoint substitute counsel for the father in the present case was error. See K.P.B. v. D.C.A., 685 So.2d 750, 752 (Ala.Civ.App.1996); Smoke, 378 So.2d at 1150. On remand, the trial court should appoint counsel to represent the father.

REVERSED AND REMANDED.

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

THOMPSON, J., concurs in the result.

      . The trial court failed to note the withdrawal of Ms. Draper as the father’s attorney on the case action summary sheet. Because DHR and the father agree that the withdrawal did in fact occur and that it was sanctioned by the trial court, we will accept that the trial court did order that Ms. Draper be relieved of representing the father. If there had been a conflict as to this fact, we note that the record would support the conclusion that Ms. Draper still represented the father.


author: MURDOCK, Judge.

text:
    Cheryl Ann BURGOON v. Joseph Bernard BURGOON.
    2010080.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.
    Alan C. Livingston of Lee & Mclnish, P.C., Dothan, for appellant.
   MURDOCK, Judge.

Cheryl Ann Burgoon (“the wife”) and Joseph Bernard Burgoon (“the husband”) were divorced by the Houston Circuit Court on August 30, 1997. In the divorce judgment, the trial court awarded possession of the marital home to the wife, with joint title remaining in both the wife and the husband until the parties’ youngest child reached 19 years of age. The trial court further ordered the husband to make the payments on the loan secured by the first mortgage on the house and ordered the wife to make the payments on the loan secured by the second mortgage.

On July 17, 2001, the wife filed a petition to modify the divorce judgment.' The wife stated that following the divorce, her child from a former marriage was murdered, causing her to suffer emotional and psychological trauma, and she alleged that as a result, she was unable to maintain employment and, subsequently, unable to make the payments on the second-mortgage loan as required by the divorce judgment. Consequently, that loan became delinquent, and the bank, on at least one occasion, debited the husband’s account for the mortgage payment. The bank then began foreclosure .proceedings. The wife contacted the husband, asking him to help her to refinance the second-mortgage loan at a lower interest rate so as to reduce the monthly payments. In order to refinance that loan, however, the wife needed the husband to redirect his mortgage payments directly to her.

On July 20, 2001, the trial court granted the wife pendente lite relief, which required the husband to make the mortgage payments directly to the wife and set a hearing on the wife’s petition for modification. The husband subsequently filed a motion to dismiss, alleging, among other grounds, that the wife had “unclean hands.” At the hearing, the trial judge heard arguments of counsel, but because the husband was unable to attend the hearing, no testimony was taken. On August 9, 2001, the trial court granted the wife’s petition for modification and ordered the husband to make his mortgage payments directly to the wife. The husband filed a motion to alter, amend, or vacate the judgment; that motion was set for hearing on September 11, 2001. The wife filed a motion for rule nisi for the husband’s failure to comply with the court’s previous pendente lite order requiring him to make the mortgage payments directly to the wife.

At the hearing on the husband’s post-judgment motion, the court heard arguments of counsel, but it took no testimony. On September 19, 2001, the court set aside the pendente lite order, reconsidered the husband’s motion to dismiss, and then entered an order dismissing the wife’s petition for modification and denying her motion for rule nisi “under the ‘clean hands’ doctrine.” In response, the wife filed a motion to alter, amend, or vacate the judgment, which the court denied on October 1, 2001, without conducting a hearing. The wife appealed. On January 15, 2002, the husband filed a motion seeking to have the appeal dismissed as moot.

The wife argues that the trial court erred in dismissing her petition on the basis that she had “unclean hands”; in failing to grant a hearing on her Rule 59(e), Ala. R. Civ. P., postjudgment motion; and in making findings of fact on a Rule 12(b), Ala. R. Civ. P., motion to dismiss. However, we must first address the issue whether this court should dismiss the appeal as moot.

The husband claims that on January 10, 2002, the trial court, with the consent of the parties, set aside its October 1, 2001, order, and scheduled a new hearing on the wife’s petition for modification. This court has stated that “a trial court generally loses jurisdiction to amend its judgment 30 days after the entry of judgment.” Henderson v. Koveleski, 717 So.2d 803, 806 (Ala.Civ.App.1998). However, “a trial court retains the power to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party’s Rule 59(e)[, Ala. R. Civ. P.,] motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged.” Id. In this case, there was no Rule 59(e) motion pending before the court. The trial court had denied the wife’s Rule 59(e) motion on October 1, 2001. As a result, the trial court lost jurisdiction to amend its judgment after October 31, 2001. Therefore, we conclude that the wife’s appeal is not moot.

The wife argues that the trial court erred in finding that the wife had “unclean hands” and in granting the husband’s motion to dismiss. In Lowe v. Lowe, 466 So.2d 969 (Ala.Civ.App.1985), this court concluded that, unless otherwise shown on the face of the petition, the determination of whether to apply the “clean-hands doctrine” is not a determination that can be made based on the pleadings alone. Id. at 970-71. See also King v. King, 636 So.2d 1249, 1252 (Ala.Civ.App.1994).

In Lowe, the husband filed a petition to modify the divorce judgment, alleging that his income had been so materially reduced that he was financially unable to make the court-ordered monthly alimony payments. 466 So.2d at 969. The wife’s motion to dismiss averred that the husband had “unclean hands” because the alimony payments were in arrears. Id. The trial court granted the wife’s motion to dismiss without conducting an evidentiary hearing.

This court reversed the trial court’s judgment, holding that the face of the husband’s modification petition did not indicate that the husband had unclean hands and, therefore, that the clean-hands doctrine should have been raised by an affirmative defense pursuant to Rule 8(c), Ala. R. Civ. P., rather than in the wife’s motion to dismiss. Id. at 970. The court explained that unless a summary judgment could properly be granted on the clean-hands issue, that issue would be an eviden-tiary trial issue. Id. The Lowe court concluded that “there was no supportive evidence of a lack of clean hands on [the husband’s] part,” and the facts set forth in the judgment were “premature findings of fact made without evidence thereon.” Id.

Based on this court’s decision in Lowe, we conclude that the trial court erred in dismissing the wife’s petition for modification, without the benefit of testimony, based on the clean-hands doctrine. Accordingly, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Given our decision on the foregoing issue, we pretermit discussion of the wife’s remaining arguments.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and PITTMAN, JJ.; concur.

      . The trial court in Lowe actually conceded that " 'it would be necessary that evidence be heard in order for the Court to make the determination that the "clean hands” doctrine should apply,’ ” but proceeded to base its decision on evidence that it had heard in previous proceedings. Lowe, 466 So.2d at 969-70.


text:
    OAKWOOD MOBILE HOMES, INC., and Destiny Industries, Inc. v. Tommy CARTER and Patricia Carter.
    2010100.
    Court of Civil Appeals of Alabama.
    Sept. 27, 2002.

      Jon B. Terry of Bains & Terry, Bessemer, for appellants.
    Paul C. Williams of Thomas, Means, Gil-lis & Seay, P.C., Birmingham; and Byron Todd Ford of Ford & Kimbrough, P.C., Eutaw, for appellees.
   MURDOCK, Judge.

This appeal concerns the denial of a motion to compel arbitration. In July 2000, Tommy Carter and Patricia Carter filed a civil action in the Pickens Circuit Court seeking damages from Oakwood Mobile Homes, Inc., and Destiny Industries, Inc. (“the defendants”). The Carters claimed that a new mobile home they had purchased from the defendants was defective; they stated an implied-warranty claim arising under Alabama law and a federal-law claim arising under the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (“Magnuson-Moss Act”). The defendants filed a motion to compel arbitration and to dismiss the action, alleging that the Carters had agreed to submit “[a]ll claims, disputes and controversies arising out of or relating in any way to the sale, purchase, or occupancy of [their] home” to “binding arbitration administered by the American Arbitration Association (‘AAA’) under its Commercial Rules.” A copy of an arbitration agreement bearing the Carters’ signatures was attached to the motion.

After the parties had filed affidavits in support of their positions concerning the arbitrability of the Carters’ claims, the trial court denied the defendants’ motion, concluding that the defendants had made misrepresentations during the sale of the' mobile home and that the Carters had reasonably relied on those misrepresentations. The defendants’ appeal from the trial court’s order (see Rule 4(d), Ala. R.App. P.) was transferred by the Alabama Supreme Court to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995), the United States Supreme Court held that the Federal Arbitration Act (“FAA”) preempts contrary Alabama law that would otherwise bar specific enforcement of a predispute arbitration agreement entered into with respect to a transaction involving interstate commerce. Thus, such arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

Following Allied-Bruce Terminix, Alabama law has treated a motion to compel arbitration as “analogous to a motion for a summary judgment.” TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). Consequently, “[t]he party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that that contract evidences a transaction affecting interstate commerce,” id. If that burden is met, the burden then shifts to the nonmovant “ ‘to present evidence that the supposed arbitration‘agreement is not valid or does not apply to the dispute in question,’ ” Ryan’s Family Steak Houses, Inc. v. Regelin, 735 So.2d 454, 457 (Ala.1999) (quoting Jim Burke Auto., Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995)).

In this case, the defendants presented a signed arbitration agreement that stated that the parties acknowledged that the mobile-home sale was a transaction in interstate commerce, that they agreed to be bound by the FAA, and that all claims, disputes, and controversies arising out of or relating to the sale, purchase, or occupancy of the mobile home would be resolved by binding arbitration. Thus, the defendants made a prima facie showing that they were entitled to arbitrate the Carters’ claims, and the burden then shifted to the Carters to make an evidentiary showing that their claims were not, in fact, subject to arbitration.

In opposition to the defendants’ motion to compel arbitration, the Carters fled a response in which they contended that an employee of Oakwood Mobile Homes made “two material misrepresentations of law and/or fact concerning the operation of the arbitration clause and/or desirability of litigation claims in arbitration.” However, the sole evidentiary support for this contention appears in Tommy Carter’s affidavit, in which he avers, in pertinent part, that at the time the Carters executed the paperwork to purchase the mobile home (1) “[o]ne of the documents that [the Carters] were told to sign contained an arbitration clause”; (2) neither of [the Carters] knew what arbitration was; (3) Patricia Carter remarked that she “figured that the ‘probate judge or somebody’ would come in and settle any problems that might come up,” at which time an employee of Oakwood Mobile Homes responded “yeah”; and (4) an employee of Oakwood Mobile Homes had stated that “the arbitration clause was for [the] benefit” of the Carters. These facts, say the Carters, amount to fraud in the inducement, which vitiates their apparently voluntary agreement to arbitrate their disputes with the defendants.

Our Supreme Court has held that “ ‘[w]hen a claim of fraud in the inducement is directed toward the arbitration clause itself, the issue is adjudicated by the court,’ but ‘when a claim of fraud in the inducement is directed toward the entire contract, ... the issue is subject to arbitration.’ ” Harold Allen’s Mobile Home Factory Outlet, Inc. v. Early, 776 So.2d 777, 782 (Ala.2000) (quoting Investment Mgmt. & Research, Inc. v. Hamilton, 727 So.2d 71, 78 (Ala.1999)). “‘A party must provide substantial evidence of fraud in the inducement, particularly related to the arbitration clause, in order to avoid arbitration.’” Early, 776 So.2d at 782 (quoting Ex parte Perry, 744 So.2d 859, 863 (Ala.1999)). We note that “[f]raud in the inducement consists of one party’s misrepresenting a material fact concerning the subject matter of the underlying transaction and the other party’s relying on the misrepresentation to his, her, or its detriment in executing a document or taking a course of action.” Oakwood Mobile Homes, Inc. v. Barger, 773 So.2d 454, 459 (Ala.2000) (emphasis omitted).

We first consider the Oakwood Mobile Homes employee’s response to Ms. Carter’s statement that “the ‘probate judge or somebody’ would come in and settle any” disputes between the parties. As an initial matter, the disjunctive nature of the statement—either a “probate judge or somebody” else will decide disputes— renders suspect the Carters’ claim that the response—“yeah”—was false. In fact, the arbitration agreement provides that the parties would select an “independent and impartial arbitrator,” or, in the alternative, each party would select one arbitrator for an arbitration panel and those two arbitrators would themselves choose a third arbitrator. The only limitations on who may be selected as an arbitrator are that the arbitrator must be a lawyer licensed by the Alabama State Bar and must be approved to serve on an “AAA panel” unless the parties agree to the contrary. Thus, the parties indeed have the power to agree to have a “probate judge or somebody else” serve as an arbitrator.

More importantly, however, to the extent that the alleged representation concerning who will decide disputes under the agreement could be said to be false because of the requirement that the arbitrator be admitted to the Alabama State Bar and be approved to serve on an AAA panel, the arbitration agreement would clearly contradict any inference that that representation was true. Under Alabama law, “a person cannot blindly rely on an agent’s oral representations to the exclusion of written disclosures in a contract,” and the defendants had no independent duty to explain the arbitration agreement to the Carters. Early, 776 So.2d at 784. There is no substantial evidence, therefore, indicating that the Carters could have reasonably relied upon any representations regarding who would decide disputes between the Carters and the defendants.

With respect to the alleged statement by the employee of Oakwood Mobile Homes that the arbitration agreement was for the Carters’ benefit, we cannot perceive a misrepresentation of a material fact. First, the arbitration agreement itself states that it “is for and inures to the benefit of the parties hereto.” The representation concerning the “benefit” of the arbitration agreement could thus reflect an accurate summary of that contractual provision.

Moreover, absent evidence of an intent to deceive, Alabama law does not allow one to maintain a fraudulent-inducement claim based upon a mere ' opinion. See Reynolds v. Mitchell, 529 So.2d 227, 231 (Ala.1988). While the Carters argue that the arbitration clause could only be “for the benefit” of the defendants, as evidenced by Oakwood Mobile Homes’ brief to this court, arguments to the contrary can be made. The employee who made the representation at issue could have been of the opinion that the arbitration provision would be beneficial to the Carters (e.g., the employee could have believed that the arbitration would offer the Carters a speedier alternative to conventional litigation). In this case, the employee’s expressed view that the arbitration agreement was for the Carters’ benefit amounted to an opinion, much like the employer’s opinion in a 1998 South Carolina case that arbitration is “fair.” See Hooters of America, Inc. v. Phillips, 39 F.Supp.2d 582, 606 (D.S.C.1998) (employer’s alleged statements that arbitration process was “fair,” that arbitrators were impartial, and that arbitration was like going to court could not form basis of claim of fraud in the inducement of arbitration agreement), aff'd and remanded, 173 F.3d 933 (4th Cir.1999).

“Federal law requires this [c]ourt ... to resolve in favor of arbitration any doubts whether [a] fraudulent-inducement claim is arbitrable.” Early, 776 So.2d at 783. Accordingly, we conclude that the trial court erred in this case in failing to grant the defendants’ motion to compel arbitration. The trial court’s order denying the defendants’ motion to compel arbitration is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

      . We note that a probate judge, under Alabama law, is not required to be a member of the Alabama State Bar. See Ala. Const, of 1901, amend. 328, § 6.07 (providing that probate judges shall have such qualifications as may be provided by law), and Ala.Code 1975, § 12-13-31 (specifying only citizenship and residency requirements for probate judges).

      . The Carters also contend, that the trial court’s order denying arbitration was proper as to their Magnuson-Moss Act claim, citing Ex parte Thicklin, 824 So.2d 723 (Ala.2002), for the proposition that arbitration of Magnu-son-Moss Act claims should not go forward where an arbitration agreement is not disclosed in an express warranty. However, the abbreviated record before this court does not indicate the precise contents of any express warranty issued by the defendants. We therefore are unable in this appeal to address the merits of the Carters' arguments concerning the applicability of Thicklin or to affirm the trial court's order on that basis.


author: SHAW, Judge.

text:
    David Allen WOODARD v. STATE of Alabama.
    CR-00-1625.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Richard D. Jensen, Foley, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, David Allen Woodard, was indicted for two counts of capital murder in connection with the death of Tommy Childress. Count I charged Woodard with murder made capital because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975. Count II charged Woodard with murder made capital because it was committed during the course of a burglary, see § 13A-5-40(a)(4), Ala.Code 1975. A jury found Woodard guilty of the lesser-included offense of felony murder as to each count. The trial court adjudged Woodard guilty of two counts of felony murder and sentenced him to two consecutive terms of life imprisonment.

The evidence adduced at trial indicated that in September 1999, David Silver, his girlfriend Jolie Cook, and Woodard were living with Tommy Childress. On the evening of September 3, 1999, Woodard and Silver got into an argument with Chil-dress. When Childress told Woodard, Silver, and Cook to leave his house, Silver grabbed Childress, hit him, and threw him to the floor, where he and Woodard kicked Childress repeatedly. Childress was then shot twice in the head with his own pistol. Conflicting testimony was presented as to whether Woodard or Silver shot Childress. Cook testified that both Woodard and Silver kicked Childress, but that Woodard was the one who shot Childress. Marshall Collier testified that he saw Silver, Cook, and Woodard sometime after the murder and that Silver admitted to him that he had shot Childress. After the murder, Woodard and Silver took money from Chil-dress’s pants pocket and a gold necklace Childress was wearing, and they fled the scene in Childress’s pickup truck. The State presented evidence indicating that Childress’s blood was found on the pants Woodard was wearing and on the shoes Silver was wearing when they were arrested the evening following the murder. Woodard confessed to law-enforcement officers that he was present during the murder, but he said that he did not beat or kill Childress. He claimed that Silver was the person who shot Childress and that he had actually tried to stop Silver. Woodard admitted, however, that after Childress had been shot, he took money out of Chil-dress’s pants pockets and that he drove Childress’s truck away from the scene.

I.

Woodard contends that the trial court erred in allowing testimony regarding the portion of the statement he made to police in which he stated that he had previously killed a man in North Carolina.

As noted above, police interviewed Woodard the day after Childress’s murder; specifically, he was interviewed by Sgt. John Stewart and Deputy James Stall-worth, both of whom are with the Baldwin County Sheriffs Department. The record reflects that the interview was not recorded and that the statement was not written or signed by Woodard. Rather, the testimony indicates that Sgt. Stewart and Deputy Stallworth took notes during the interview and that three to four days after the interview, Deputy Stallworth typed a narrative of what was said during the interview based on both his notes and Sgt. Stewart’s notes. A copy of that narrative is in the record on appeal, but it was not introduced into evidence. The only evidence of Woodard’s statement to police that was presented to the jury was the testimony of Deputy Stallworth. The copy of the typed narrative shows that during the interview, when asked whether he had killed Childress, Woodard replied: “If I killed him, I would not be alive now. Guilt would get the best of me. I killed a nigger one time and that was in self-defense. And you do not know what it’s like to see that face in your dreams night after night. Guilt would get the best of me.” (C. 144.) The record reflects that the killing Woodard was referring to occurred between 10 and 12 years before the present murder, and that Woodard had been arrested for the killing, but that the grand jury had not returned an indictment against Woodard.

Before trial, Woodard filed a motion to prohibit the prosecutor from introducing evidence of that portion of his statement on the ground that evidence of the prior killing was inadmissible character evidence under Rule 404(b), Ala.R.Evid., that it was irrelevant, and that it was prejudicial. The trial court heard arguments on the motion before trial. The State argued that the statement was admissible because, it said, it was the reason Woodard gave police to explain why he could not have killed Childress, which the State argued was a “silly” reason, and that “it shows the jury that this is not really the reason at all,” that “this is all phoney.” (R. 442.) The trial court then conditionally denied the motion, finding that because the statement was made after Woodard had been advised of his Miranda rights, it was not prejudicial and was admissible; however, the trial court indicated that it would address the admissibility of that portion of the statement again when the issue arose during trial.

Just before the testimony of Deputy Stallworth, Woodard renewed his objection to the admission of that portion of his statement referencing the earlier killing in North Carolina. The trial court overruled the objection. During direct examination of Deputy Stallworth, the following occurred:

“[Prosecutor]: Did you ever ask him or was he asked, did you kill Tommy Childress?
“[Deputy Stallworth]: Yes, we asked him that.
“[Prosecutor]: What was his response?
“[Woodard’s counsel]: And again, Your Honor, same objection.
“THE COURT: All right. Overrule the objection.
“THE WITNESS: I did not kill Tommy Childress.
“[Prosecutor]: Is that all he said, Jim Stallworth?
“[Deputy Stallworth]: No, sir.,
“[Prosecutor]: Well, tell the jury what his response was.
“[Deputy Stallworth]: He said, I killed a nigger one time and I can’t get the face out of my dreams. You don’t know what it’s like every night to wake up and have this face in your, seeing this face every night.
“And I couldn’t five with the guilt that I would have gotten if I had killed Tommy.”

(R. 1050-51.) Deputy Stallworth did not testify, in contrast to the written narrative that he prepared regarding Woodard’s statement, that Woodard had told him that the prior killing was in self-defense. On cross-examination, Woodard’s counsel attempted to question Deputy Stallworth about that portion of Woodard’s statement by reading the language (that we quoted previously) from the narrative regarding Woodard’s response. However, before counsel reached the portion of the narrative indicating that Woodard stated that the prior killing was in self-defense, the State objected, arguing that if Woodard’s counsel read the narrative verbatim, it would introduce the typed narrative into evidence. The trial court overruled the objection, but stated that “we’ll discuss whether or not it comes into evidence in a minute.” (R. 1150.) Woodard’s counsel then rephrased the question, asking Deputy Stallworth if he remembered Sgt. Stewart’s asking Woodard if he had killed Chil-dress and if he remembered Woodard’s response. Deputy Stallworth stated that he did, and repeated what he had said on direct examination regarding Woodard’s response, again leaving out that portion in which Woodard said that the prior killing had been in self-defense.

After cross-examination, Woodard’s counsel requested that he be allowed to present evidence indicating that a North Carolina grand jury had declined to return an indictment against Woodard for the North Carolina killing on the ground that there was no probable cause. After a lengthy discussion, the trial court indicated that Woodard could present that evidence so long as it was not in the form of hearsay. Because the only evidence Woodard had was in the form of testimony from Huey Mack, Jr., a lieutenant with the Baldwin County Sheriff’s Department, who had contacted authorities in North Carolina and had been told that the grand jury had not indicted him, he could not present that evidence to the jury. However, in response to the State’s request, the trial court stated that it would allow the State to ask Lt. Mack if he had checked with North Carolina regarding the prior killing. The State made this request in order to lessen the implication raised by Woodard on cross-examination of Deputy Stallworth that the police had not been thorough in their investigation when Woodard asked Deputy Stallworth if he had checked with North Carolina authorities regarding the prior killing and Deputy Stallworth replied that he had not. In sum, although the jury was told that Woodard had admitted to killing a man previously, it was never informed that Woodard had said the killing was in self-defense or that Woodard had never been indicted for or convicted of the killing.

Rule 404(b), Ala.R.Evid., provides, in part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....”

Evidence of collateral crimes is “presumptively prejudicial because it could cause the jury to infer that, because the defendant has committed crimes in the past, it is more likely that he committed the particular crime with which he is charged — thus, it draws the jurors’ minds away from the main issue.” Ex parte Drinkard, 777 So.2d 295, 296 (Ala.2000). In Robinson v. State, 528 So.2d 343 (Ala.Crim.App.1986), this Court explained the exclusionary rule as follows:

“ ‘ “On the trial of a person for the alleged commission of a particular crime, evidence of his doing another act, which itself is a crime, is not admissible if the only probative function of such evidence is to show his bad character, inclination or propensity to commit the type of crime for which he is being tried. This is a general exclusionary rule which prevents the introduction of prior criminal acts for the sole purpose of suggesting that the accused is more likely to be guilty of the crime in question.” ’ Pope v. State, 365 So.2d 869, 371 (Ala.Cr.App.1978), quoting C. Gamble, McElroy’s Alabama Evidence § 69.01 (3d ed.1977). “‘This exclusionary rule is simply an application of the character rule which forbids the State to prove the accused’s bad character by particular deeds. The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.” ’ Ex parte Arthur, 472 So.2d 665, 668 (Ala.1985), quoting McElroy’s supra, § 69.01(1). Thus, the exclusionary rule serves to protect the defendant’s right to a fair trial. ‘ “The jury’s determination of guilt or innocence should be based on evidence relevant to the crime charged.’” Ex parte Cofer, 440 So.2d 1121, 1123 (Ala.1983); Terrell v. State, 397 So.2d 232, 234 (Ala.Cr.App.1981), cert. denied, 397 So.2d 235 (Ala.1981); United States v. Turquitt, 557 F.2d 464, 468 (5th Cir.1977).
“ ‘If the defendant’s commission of another crime or misdeed is an element of guilt, or tends to prove his guilt otherwise than by showing of bad character, then proof of such other act is admissible.’ Saffold v. State, 494 So.2d 164 (Ala.Cr.App.1986). The well-established exceptions to the exclusionary rule include: (1) relevancy to prove identity; (2) relevancy to prove res gestae; (3) relevancy to prove scienter; (4) relevancy to prove intent; (5) relevancy to show motive; (6) relevancy to prove system; (7) relevancy to prove malice; (8) relevancy to rebut special defenses; and (9) relevancy in various particular crimes. Willis v. State, 449 So.2d 1258, 1260 (Ala.Cr.App.1984); Scott v. State, 353 So.2d 36 (Ala.Cr.App.1977). However, the fact that evidence of a prior bad act may fit into one of these exceptions will not alone justify its admission. ‘ “Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government’s case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects.” ’ Averette v. State, 469 So.2d 1371, 1374 (Ala.Cr.App.1985), quoting United States v. Turquitt, supra at 468-69. ‘ “ ‘Prejudicial’ is used in this phrase to limit the introduction of probative evidence of pri- or misconduct only when it is unduly and unfairly prejudicial.” [Citation omitted.] “Of course, ‘prejudice, in this context, means more than simply damage to the opponent’s cause. A party’s case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.’ ” ’ Averette v. State, supra, at 1374.”

528 So.2d at 347.

In this case, none of the exceptions to the exclusionary rule applies. The only argument the State made for admitting Woodard’s statement regarding the prior killing in North Carolina was that it was the reason Woodard gave for why he could not have killed Childress. This, however, is not one of the exceptions to the exclusionary rule. Moreover, contrary to the trial court’s finding, merely because Woodard was advised of his Miranda rights before he made the statement does not make the statement admissible. The prior killing was not relevant to, or probative of, any issue in the case; it was completely collateral to the crime with which Woodard was charged. Therefore, we agree with Woodard that the portion of his statement referring to the North Carolina killing was inadmissible character evidence under Rule 404(b).

Moreover, the improper admission of the statement was not harmless.

“In determining whether the admission of improper testimony is reversible error, ... the reviewing court must determine whether the 'improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the reviewing court can affirm a judgment based upon the 'harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”

Ex parte Crymes, 630 So.2d 125, 126 (Ala.1993). “Whether the* improper admission of evidence of collateral bad acts amounts to prejudicial error or harmless error must be decided on the facts of the particular case.” R.D.H. v. State, 775 So.2d 248, 254 (Ala.Crim.App.1997).

The evidence in this case was not so overwhelming as to render admission of the statement harmless. Although it was undisputed that Woodard was present at the time of Childress’s murder, the level of his involvement in the murder was hotly disputed, and the jury’s verdict acquitting Woodard of the capital charges in the indictment, and finding him guilty of felony murder instead, suggests that the jury believed at least a portion of Woodard’s version of events. Had it completely believed Woodard’s version of events, however, the most the jury could have convicted Woodard of was robbery. According to Woodard’s version of events, on the evening of September 3, 1999, Silver had gotten into an argument with Childress regarding Childress’s “hitting on” Cook (R. 1050), and Silver had attacked Childress — stomping on him, and shooting him twice in the head. Woodard told police that he had tried to stop Silver from killing Childress, but that he was unsuccessful. He maintained that he was not involved in murdering Childress, but admitted that, after Childress had been killed, he took money out of Childress’s pants pockets, and that he drove Childress’s truck away from the scene. Woodard’s version of events suggests that the murder and the robbery were two separate crimes, that the intent to rob was formed only after Childress had been murdered, and that, therefore, the murder did not occur “in the course of and in furtherance of’ the robbery, as is required under § 13A-6-2(a)(3), Ala.Code 1975, for felony murder. See, e.g., Connolly v. State, 500 So.2d 57 (Ala.Crim.App.l985)(noting that an accused is not guilty of capital murder or felony murder where the intent to commit the underlying felony is formed only after the killing).

In addition, contrary to the State’s contention, Deputy Stallworth’s testimony regarding Woodard’s statement was not “cumulative” merely because Woodard’s counsel elicited testimony about the statement on cross-examination of Deputy Stallworth. Although we agree that “testimony that may be inadmissible may be rendered harmless by prior or subsequent lawful testimony to the same effect or from which the same facts can be inferred,” White v. State, 650 So.2d 538, 541 (Ala.Crim.App.1994), overruled on other grounds, Ex parte Rivers, 669 So.2d 239 (Ala.Crim.App.1995), Woodard should not be penalized merely because defense counsel attempted to lessen the impact of the improperly admitted evidence through cross-examination.

Furthermore, the statement itself was highly inflammatory and prejudicial. The jury was permitted to hear that Woodard had admitted to killing a man previously, but was not informed that Woodard had said the prior killing was in self-defense or that Woodard had never been indicted for the killing. This suggested to the jury that the prior killing was not merely a collateral “bad act,” but was, in fact, a prior crime.

Under these circumstances, we cannot say conclusively that the jury’s verdict was not influenced by the improper admission of the statement. We conclude that the prejudicial effect of Woodard’s statement substantially outweighed any conceivable probative value; that the trial court committed reversible error in allowing the statement into evidence; and that Woodard is therefore entitled to a new trial.

II.

Although we are reversing Woodard’s convictions for the reasons stated in Part I of this opinion, we address one of Woodard’s other issues because it may arise on retrial.

Woodard contends that his convictions for two counts of felony murder under § 13A-6-2(a)(3), Ala.Code 1975 — murder during a robbery and murder during a burglary — for the murder of a single victim violate the principles of double jeopardy. We agree. In Ex parte Rice, 766 So.2d 143 (Ala.1999), the Alabama Supreme Court addressed an identical issue and stated:

“Rice contends that § 13A-6-2(a)(3) provides for several different methods of committing a single offense — murder. According to Rice, the Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),] test, which the Court of Criminal Appeals applied in Weaver [v. State, 763 So.2d 972 (Ala.Crim.App.1998),] and on which the State exclusively relies, is not applicable because, he says, § 13A-6-2(a)(3) defines a single offense. We agree.
“Section 13A-6-2 provides in part:
“ ‘(a) A person commits the crime of murder if:
“ ‘(3) He commits or attempts to commit arson in the first degree, burglary in the first or second degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree, sodomy in the first degree or any other felony clearly dangerous to human life and, in the course of and in furtherance of the crime that he is committing or attempting to commit, or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.’
“(Emphasis added.) Murder is a class A felony, § 13A-6-2(c), and is punishable by a term of imprisonment for ‘life or not more than 99 years or less than 10 years,’ see § 13A — 5—2(f) and § 13A-5-6(a)(1), and by a fine of not more than $20,000, see § 13A-5-2(b); § 13A-5-11(a)(1). The cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature as manifested in the language of the statute. Absent a clearly expressed legislative intent to the contrary, the language of the statute is conclusive. Ex parte State Dep’t of Revenue, 683 So.2d 980, 983 (Ala.1996). This Court has explained:
‘“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’
“IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992); see, also, Johnson v. Price, 743 So.2d 436 (Ala.1999).
“The language used by the Alabama Legislature in § 13A-6-2(a)(3) is clear and unambiguous. Section 13A-6-2(a)(3) defines one criminal offense— murder. A ‘murder,’ within the definition of § 13A-6-2(a)(3), may be committed by several different methods, and the State may allege and prove any one or all of those various methods in its attempt to establish the defendant’s guilt. This Court held in Sisson v. State, 528 So.2d 1159 (Ala.1988), that when a statute provides alternative or different methods of committing the same offense, each alternative method is not to be treated as a separate offense. Because we are dealing here with a single statute (§ 13A — 6—2(a)(3)) that defines a single offense, the Blockburger test is not applicable. See, e.g., Sanabria v. United States, 437 U.S. 54, 70, n. 24, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (‘Because only a single violation of a single statute is at issue here, we do not analyze this case under the so-called “same evidence” test, which is frequently used to determine whether a single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes’).
“The sole remaining question is whether the Legislature has clearly expressed an intent to impose two life sentences for one murder. Our research has disclosed nothing that would indicate an intent on the Legislature’s part to authorize the imposition of separate sentences corresponding to each method by which the offense stated in § 13A-6-2(a)(3) may be committed. In this regard, the Legislature has done nothing more than classify the offense of ‘murder’ as a class A felony, and it has authorized only one sentence of imprisonment for that offense — ‘life or not more than 99 years or less than 10 years.’
“Based on what we have stated above, we conclude that the trial court erred in adjudging Rice guilty of two murders and in sentencing him twice for his violation of § 13A-6-2(a)(3).... ”

766 So.2d at 150-51. Our Supreme Court also stated in Ex parte Rice:

“The judgment of the Court of Criminal Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. We note that merely ordering that Rice’s sentences run concurrently is not a constitutionally acceptable option. The Supreme Court stated in Ball v. United States, 470 U.S. 856, 864-65, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985):
“ ‘The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368[, 103 S.Ct. 673, 74 L.Ed.2d 535] (1983).
“ ‘The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U.S. 784, 790-91[, 89 S.Ct. 2056, 23 L.Ed.2d 707] (1969); Sibron v. New York, 392 U.S. 40, 54—56[, 88 S.Ct. 1889, 20 L.Ed.2d 917] (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.’
“See, also, Rolling v. State, [673 So.2d 812 (Ala.Crim.App.1995) ].
“Neither is it an acceptable option to merely vacate one of Rice’s convictions and its corresponding sentence. The jury specifically found that Rice had violated § 13A-6-2(a)(3) in two different ways — by participating in a kidnapping and causing Taylor’s death and by participating in a robbery and causing Taylor’s death. Based on the record before us, an appellate court’s vacating one of Rice’s convictions and its corresponding sentence would have the effect, albeit unintended, of nullifying a part of the jury’s verdict. We think the better approach is for the Court of Criminal Appeals to remand the case to the trial court for the entry of a new order — an order that adjudges Rice guilty of Taylor’s murder and sentences him for that single offense.”

766 So.2d at 152-53. If this circumstance arises again on retrial, we caution the trial court that felony murder is but a single offense and that Woodard cannot be convicted of or sentenced for two counts of felony murder for the murder of a single victim.

For the reasons stated in Part I of this opinion, the judgment of the trial court is reversed and this case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Woodard actually styled this as a motion to redact. However, because there was no written statement by Woodard, there was nothing to redact, and both the trial court and the parties treated the motion as a motion in limine to prohibit the prosecutor from eliciting testimony about that portion of his statement.

      . The motion also challenged another portion of his statement in which he referred to a previous arrest for illegal narcotics; the trial court granted the motion with respect to that arrest and instructed the prosecutor not to mention the drug arrest.

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

      . Woodard also filed a motion in limine requesting that the prosecutor be prohibited from introducing evidence or referring to the fact that he had been arrested in North Carolina for that murder. Although the trial court denied the motion, it instructed the prosecutor not to mention the arrest in opening statements, and the record reflects that no evidence of the arrest was presented during the trial.

      . Part of that cross-examination included asking Deputy Stallworth if he had contacted authorities in North Carolina regarding the prior killing, to which he replied he had not. As noted previously, in response to this questioning, the State requested that it be allowed to ask Lt. Mack if he had contacted North Carolina authorities regarding the prior killing, and the trial court granted the request. Because Lt. Mack’s limited testimony regarding his contacting North Carolina authorities about the prior killing had been specifically allowed by the trial court in direct response to Woodard’s cross-examination of Deputy Stall-worth, we likewise reject the State’s argument that evidence of the statement was merely "cumulative” of Lt. Mack's testimony, which was not objected to by Woodard at the time it was elicited.


author: COBB, Judge.

text:
    Bobby TAYLOR v. STATE of Alabama.
    CR-01-0834.
    Court of Criminal Appeals of Alabama.
    Sept. 27, 2002.

      Philip Dale Segrest, Tuskegee, for appellant.
    William H. Pryor, Jr., atty. gen., and Jack W. Willis, asst. atty. gen., for appel-lee.
   COBB, Judge.

On January 11, 2002, Bobby Taylor pleaded guilty to first-degree theft of property and second-degree burglary, violations of §§ 13A-8-3(a) and 13A-7-6(a)(l), Ala.Code 1975, respectively. Taylor pleaded guilty to those charges on information, rather than indictments. Taylor’s pleas were “blind pleas” — they were entered without any agreement with the prosecution regarding a sentencing recommendation. The trial court sentenced him, as a habitual offender, to 20 years’ in prison in each case. See § 13A-5-9(b)(2), Ala.Code 1975. Those sentences were to run concurrently to each other and consecutively to a 15-year sentence Taylor had received 3 days earlier in an unrelated case. Taylor filed a “Motion to set aside [Taylor’s] guilty plea or in the alternative to resen-tence the defendant.” (C. 23-24.) Following a hearing, the trial court denied the motion. This appeal followed.

On appeal, Taylor argues that the circuit court erroneously denied his motion to set aside his guilty plea. Specifically, Taylor contends that, because the circuit court failed to specifically advise him that his sentence could be ordered to run consecutively with his other sentence, his guilty plea was entered into unknowingly.

Rule 14.4(a), Ala. R.Crim. P., provides, in relevant part:

“(a) ... In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences.”

The Committee Comments to Rule 14.4, Ala. R.Crim. P., state:

“Sub-subsection (iii), requiring that the trial judge inform the defendant that the sentence may run concurrently or consecutively with another sentence, is included to insure that the defendant is aware of the additional consequences of his guilty plea. See Cooper v. State, 47 Ala.App. 178, 252 So.2d 104 (1971). Compare ABA, Standards for Criminal Justice, Pleas of Guilty 14-1.4 (2d ed. 1986).... The Advisory Committee believes that, in light of the Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),] requirement that the trial judge ‘make sure that [the defendant] has a full understanding of what the plea connotes and of its consequence,’ the better practice is routine disclosure of such information.”

Here, the circuit court’s colloquy with Taylor made no mention of the fact that Taylor’s sentences could run consecutively to or concurrent with the term he was sentenced to three days earlier. There is no mention of an Ireland form in the transcript of the guilty plea proceedings, and no Ireland form is included in the record. At the hearing on Taylor’s motion to withdraw his guilty plea, Taylor’s trial counsel testified that he did not make any guarantees to Taylor about what sentence he might receive. The circuit judge stated that, because he had advised Taylor of his rights in several previous cases, he found it hard to believe that Taylor did not understand his rights. However, the trial court never stated that Taylor was actually informed that his sentences could be consecutive or concurrent to each other or to any of his previous sentences.

“‘The accused’s right to know the possible sentence he faces is absolute.’ ” Bozeman v. State, 686 So.2d 556, 559 (Ala.Crim.App.1996), quoting Henry v. State, 639 So.2d 583, 584 (Ala.Crim.App.1994). Nowhere in the colloquy contained in the record before this Court on appeal does the circuit court advise Taylor that the sentences could run consecutively or concurrently to the previous sentence Taylor had received three days earlier. Therefore, because the record does not reflect that Taylor was advised that consecutive sentences might be imposed or that it might be ordered that the sentences be served consecutively, we cannot conclude that the appellant’s plea was voluntarily and knowingly entered. See Bozeman v. State, 686 So.2d 556 (Ala.Crim.App.1996) The trial court’s denial of Taylor’s motion to withdraw his plea was erroneous. The judgment of the circuit court must be reversed and the cause remanded. The circuit court is instructed to grant Taylor’s motion to withdraw his guilty plea and to conduct further proceedings.

REVERSED AND REMANDED.

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