author: KING, P.J.,

text:
    Roger L. HENTZ, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-CP-01265-COA.
    Court of Appeals of Mississippi.
    Feb. 25, 2003.
    Rehearing Denied June 3, 2003.

      Roger L. Hentz (Pro se), attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court:

¶ 1. Roger L. Hentz has appealed the denial of his petition for post-conviction collateral relief by the Panola County Circuit Court. On January 5,1999, Hentz pled guilty to (1) a charge of conspiracy to manufacture a controlled substance, (2) a charge of manufacturing methamphetamine, and (3) a charge of possession of drug paraphernalia. He was sentenced, as an habitual offender, to serve a term of ten years on the conspiracy charge, ten years on the manufacturing charge, and six months on the paraphernalia possession charge, all of which were to be served concurrently without parole in the custody of the Mississippi Department of Corrections.

¶ 2. On December 6, 2000, Hentz filed a pro se petition for post-conviction collateral relief, which was dismissed without an evidentiary hearing by the trial court. On appeal, Hentz raises the following issues:

I. Whether his pleas of guilty were voluntary.
II. Whether his Fourth Amendment rights were violated.
III. Whether the indictment was defective.
IV. Whether he received effective assistance of counsel.
V. Whether the trial court erred by not considering Hentz’s amended supplemental brief prior to dismissing his motion for post-conviction collateral relief without an evidentiary hearing.

FACTS

¶ 3. In October 1998, Hentz was indicted on a charge of conspiracy to manufacture a controlled substance, a charge of manufacturing methamphetamine, and a charge of possession of drug paraphernalia, as an habitual offender. Hentz entered an “open plea” of guilty to these charges.

¶ 4. At the plea hearing, Hentz was represented by appointed counsel. The trial judge questioned Hentz to determine whether his pleas of guilty were knowingly and voluntarily made. Hentz testified that he understood the nature of the charges and was guilty of the crimes. The trial judge asked Hentz if he understood that by entering an “open plea,” the trial judge would, after hearing the evidence presented by both sides, make the decision to impose a sentence within the minimum and maximum penalties provided by law. Hentz stated that he understood this.

¶ 5. The trial judge also asked Hentz if anyone had threatened him" or promised him anything in regard to his pleas of guilty. Hentz testified that he had not been threatened or promised anything. The trial judge then questioned Hentz to determine if he was satisfied with his attorney’s services. Hentz responded affirmatively. The trial judge asked Hentz if anyone tried to tell him how to answer the questions in order to get the court to accept his guilty pleas. Hentz indicated that he had not been advised to answer the questions in a certain way to gain the court’s acceptance of his pleas of guilty.

¶ 6. Based upon Hentz’s responses, the trial judge determined that he understood the nature of the charges against him, the nature and consequences of his pleas of guilty, and the maximum and minimum sentences required by law. Accordingly, the court found Hentz’s pleas of guilty to be freely, voluntarily, and knowingly made.

¶ 7. On December 6, 2000, Hentz filed a petition for post-conviction collateral relief. On February 7, 2001, the court granted Hentz’s motion to file an amended petition and supplemental brief. By order dated July 27, 2001, the trial court denied Hentz’s petition and found the claims to be without merit.

ISSUES AND ANALYSIS

I.

Whether his pleas of guilty were voluntary.

¶ 8. Hentz contends that his guilty pleas were “involuntarily and unintelligently made due to the unlawful coersion [sic] and threats made by his appointed counsel, D.A.’s office and law enforcement.”

¶ 9. Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules states:

3. Voluntariness. Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.

¶ 10. In an effort to ascertain whether Hentz’s pleas were voluntary, the trial judge asked him the following questions:

Q. Now, in paragraph 10(b) it sets out an open plea, that there is no plea agreement between you and the State as to what the appropriate sentence should be, no recommendation.
So if I do accept your pleas, then I’ll at some point, whether it be now or later, I’ll hear evidence from the State. I’ll hear evidence in your behalf. And then I’ll just have to make a decision within the minimum or maximum penalty as provided by law. Do you understand that?
A. Yes, sir.
Q. All right. With all that in mind, then I need to make certain if there’s been any promise made to you, any effort to promise you that the Court would give you any specific sentence for less than the maximum penalty provided by law?
A. No.
Q. Has anybody promised you mercy or leniency, that I’d go light on you just because you pleaded guilty?
A. No, sir.
Q. Has anybody promised you anything specifically in return for your pleas of guilty?
A. No, sir.
Q. Has anybody threatened you, coerced you, intimidated you, or done anything in an effort to force you to plead guilty against your wishes?
A. No, sir.

¶ 11. After the trial court accepted his pleas of guilty and had begun to pronounce sentence, Hentz objected, claiming that he had “a different understanding with [his] attorney.” Hentz contends that he thought the sentence would be six years if he pled guilty. Hentz’s attorney contradicted this, and stated Hentz was told that it was an “open plea.” After consultation with his attorney, Hentz stated that his attorney “felt like” he would not receive more than six years. Hentz also stated, “I felt like if I didn’t get the six, I wouldn’t get no more [sic] eight, Your Honor.” Upon finding out what his sentence would be, Hentz suddenly claimed to have misunderstood the plea and potential sentence. However, in subsequent testimony, Hentz recanted and indicated he had not misunderstood the plea, but had rather hoped that he would get a six year sentence or at most eight years.

¶ 12. The trial court determined that no promises had been made to Hentz. That finding is supported by substantial credible evidence in the record. Where the decision of the trial court is supported by substantial credible evidence, this Court is obligated to affirm. Price v. State, 752 So.2d 1070(¶ 9) (Miss.Ct.App.1999).

¶ 13. There is one aspect of this process which troubles this Court. According to the transcript, Hentz’s attorney asked the sheriff to talk to Hentz about a potential plea. This conversation occurred with only Hentz and the sheriff present. The sheriff is by definition a part of the prosecution team. King v. State, 656 So.2d 1168, 1176 (Miss.1995). This appears at best to be highly questionable, and at worst a possible effort by defendant’s counsel to enlist the aid of the sheriff in getting Hentz to enter a plea. While this Court is most uncomfortable with this conduct, we note that Hentz’s testimony established this as a non-prejudicial conversation between the sheriff and Hentz. This Court wishes to again note that this is highly questionable, and will not always be found to be harmless.

II.

Whether his Fourth Amendment rights were violated.

¶ 14. Hentz contends that his Fourth Amendment rights were violated on August 25,1998, when he was unlawfully stopped and searched on his private property in his vehicle, then arrested. He also asserts that information from his medical records was unlawfully obtained. A valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial. Logan v. State, 771 So.2d 970(¶ 5) (Miss.Ct.App.2000). Accordingly, Hentz waived these rights when he pled guilty. Matthews v. State, 761 So.2d 931 (¶¶ 11-12) (Miss.Ct.App.2000). Having determined that his guilty pleas were properly entered and accepted, we find that this issue lacks merit.

III.

Whether the indictment was defective.

¶ 15. Hentz contends that the multi-count indictment was defective “in the elements and sufficiency to allow the trial court to have legal jurisdiction to convict and sentence him,” and that the trial court lacked all subject matter jurisdiction due to the defective indictment.

“A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). There are two exceptions to the general rule. A guilty plea does not waive the defendant’s right to assert that the indictment fails to charge an essential element of the crime, nor does it waive subject matter jurisdiction. Jefferson, 556 So.2d at 1019.

Matlock v. State, 732 So.2d 168(¶ 9) (Miss.1999).

¶ 16. The indictment read as follows:

COUNT 1
That ROGER LYNN HENTZ and GARY SMITH, Late of the District and County aforesaid, on or about the 25th day of August, in the year of our Lord, 1998, in the District, County and State aforesaid, and within the jurisdiction of this Court, did unlawfully, wilfully, felo-niously, corruptly agree, conspire and confederate, each with the other and with divers others to the Grand Jury unknown, to commit a crime, to-wit: Manufacture a Controlled Substance, in direct violation of Section 97 — 1—1(a), Mississippi Code 1972 Annotated, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
COUNT 2
That ROGER LYNN HENTZ and GARY SMITH, Late of the District and County aforesaid, on or about the 25th day of August, in the year of our Lord, 1998, in the District, County and State aforesaid, and within the jurisdiction of this Court, did unlawfully, wilfully, felo-niously, knowingly and intentionally manufacture a controlled substance, to-wit: Methamphetamine, in direct violation of Section 41-29-139(a)(l), Mississippi Code 1972 Annotated, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
COUNTS
That ROGER LYNN HENTZ and GARY SMITH, Late of the District and County aforesaid, on or about the 25th day of August, in the year of our Lord, 1998, in the District, County and State aforesaid, and within the jurisdiction of this Court, did unlawfully, wilfully, felo-niously, possess with intent to use paraphernalia to convert, produce, process, prepare, inject, ingest, inhale or otherwise introduce into the human body a controlled substance, in violation of the Uniform Controlled Substances Law, and in direct violation of Section 41-29-139(d)(1), Mississippi code 1972 Annotated, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
COUNT Í
In Counts 1 through 3 ROGER LYNN HENTZ is charged as a 99-19-81 Offender because:
1.) ROGER LYNN HENTZ was convicted in Yalobusha County, Second Judicial District, in Cause Number 3627 on 03-09-81 of Grand Larceny and sentenced to serve a term of one -(1) year;
2.) ROGER LYNN HENTZ was convicted in Tallahatchie County, First Judicial District, in Cause Number 4470 on 03-09-81 of Grand Larceny and sentenced to serve a term of one (1) year;
3.) ROGER LYNN HENTZ was convicted in Panola County, Second Judicial District, in Cause Number 3588 on 05-24-83 of Receiving Stolen Property and sentenced to serve a term of five (5) years;
4.) ROGER LYNN HENTZ was convicted in Panola County, Second Judicial District, in Cause Number 3853 on 10-22-86 of Grand Larceny and sentenced to serve a term of five (5) years;
5.) ROGER LYNN HENTZ was convicted in Panola County, Second Judicial District, in Cause Number 3855 on 10-22-86 of Grand Larceny and sentenced to serve a term of five (5) years; and
6.) ROGER LYNN HENTZ was convicted in Panola County, Second Judicial District, in Cause Number 3878 on 10-22-86 of Grand Larceny and sentenced to serve a term of five (5) years;
in direct violation of Section 99-19-81, Mississippi Code Annotated, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 17. Hentz claims that the sentence enhancement portion of the indictment is defective because it is included as a separate count, rather than being included in the actual charging language and appearing prior to the phrase “against the peace and dignity of the State of Mississippi.” However, Hentz failed to raise this issue before entering his guilty pleas, thereby waiving possible complaints of a defective indictment. Foster v. State, 716 So.2d 538(¶ 5) (Miss.1998); Miss.Code Ann. Section 99-39-21(1) (Rev.2000). Notwithstanding this Court’s finding of waiver, we hold that the indictment met the requirements of URCCC 7.06 and is therefore considered a valid indictment.

¶ 18. While inartfully drafted, it is clear that the State intended to, and did incorporate the enhancement language into each of the three actual charging sections, and in so doing, properly concluded the indictment with the language “against the peace and dignity of the State of Mississippi.”

¶ 19. This Court finds that Hentz entered valid guilty pleas which were properly accepted by the trial court. Therefore, Hentz’s claim of defective indictment lacks merit.

IV.

Whether he received effective assistance of counsel.

¶ 20. Hentz contends that he was denied effective assistance of counsel because of numerous errors committed by his attorney. Hentz’s allegations include: (1) that his attorney failed to conduct an independent pretrial investigation, (2) that his attorney failed to file motions to suppress the unlawfully seized evidence, (3) that his attorney conspired with assistant district attorney Kelly to have his bond revoked if he continued to pressure his attorney to investigate the case, (4) that his attorney failed to prepare for the eventually filed suppression motions by subpoenaing critical witnesses, (5) that his attorney failed to file certain motions to dismiss his defective indictment, or to demur, (6) that his attorney threatened him with fifty and one-half years if he did not agree to plead guilty, (7) that his attorney refused to withdraw so Hentz could hire an attorney to represent his cause, and (8) that his attorney misinformed him regarding the sentence he would receive.

¶ 21. To prove a claim of ineffective assistance of counsel, Hentz must show (1) a deficiency of counsel’s performance which is (2) sufficient to constitute prejudice to the defense. Walker v. State, 703 So.2d 266(¶ 8) (Miss.1997). Claims by the petitioner, even if supported by affidavit, that are contradicted by the record of the plea acceptance hearing may be disregarded by the trial court. McCuiston v. State, 758 So.2d 1082(¶ 9) (Miss.Ct.App.2000).

¶ 22. Hentz was asked by the trial judge whether he was satisfied with the way his attorney represented him. Hentz responded affirmatively. The trial judge asked Hentz whether he had any complaints against his attorney or against the trial court? Again, Hentz indicated that he had no complaints. Those responses were matters of record, stated under oath. This Court is entitled to rely upon the sworn testimony first given by Hentz. Rogers v. State, 811 So.2d 367(¶ 11) (Miss.Ct.App.2001).

¶ 23. In now seeking to repudiate that testimony, Hentz bears the burden of establishing by convincing evidence its factual failing. Brown v. State, 798 So.2d 481(¶ 14) (Miss.2001). He has not done so. Therefore, this Court finds no merit in this issue.

Y.

Whether the trial court erred by not considering Hentz’s amended supplemental brief prior to dismissing his motion for post-conviction collateral relief without an evidentiary hearing.

¶ 24. Hentz asserts that the trial court erred when it failed to consider the merits of his supplemental legal brief on January 31, 2001, and failed to grant an evidentiary hearing. Miss.Code Ann. Section 99-39-11 (Rev.2000) of the Post-Conviction Relief Act provides that if after thorough review of the record the Court is convinced that the petition for post-conviction relief is lacking in merit, no evidentiary hearing will be required.

¶ 25. In his opinion, the trial judge stated that he conducted a thorough review of the 'court files, including the transcript of the plea and sentencing hearing, which rendered it undeniably clear that Hentz’s post-conviction relief request was without merit and thus no evidentiary hearing was required. That finding is supported by substantial credible evidence contained within the record. Therefore, we find that Hentz’s request for post-conviction relief was properly dismissed and find no error by the trial court on this issue.

¶ 26. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.

      . Mississippi Code Annotated Section 99-39-21(1) (Rev.2000), Waiver; defenses; res judi-cata; burden of proof, provides: (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

      . URCCC 7.06 Indictments provides: The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
      1. The name of the accused;
      2. The date on which the indictment was filed in court;
      3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
      4. The county and judicial district in which the indictment is brought;
      5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
      6. The signature of the foreman of the grand jury issuing it; and
      7. The words "against the peace and dignity of the state.”
      The court on motion of the defendant may strike from the indictment any surplusage, including unnecessary allegations or aliases.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    William A. STEELE, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01561-COA.
    Court of Appeals of Mississippi.
    May 20, 2003.
    Rehearing Denied Aug. 12, 2003.

      David S. Strong, McComb, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. William Steele was convicted by a jury in Pike County of depraved heart murder and shooting into an occupied vehicle. Steele appeals, challenging the weight and sufficiency of the evidence supporting the conviction. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. In the early morning hours of October 11, 1999, William Steele and Charles Dumont were working as security guards at the Club Paradise located outside McComb. One of the club’s patrons, Dexter Robinson, was engaged in an argument with his girlfriend at the time, Amanda Porter, in the parking lot. Though accounts vary regarding how heated the discussion became, Robinson admits holding a gun during the encounter. Robinson, Porter, and Porter’s sister, Ronique Gay-den (also present for the exchange), each testified that Robinson was attempting to give the handgun to Porter for safekeeping, as Robinson feared police harassment on his way home. Dumont, a co-defendant at trial, testified that he witnessed Robinson pointing the gun at Porter’s side.

¶ 3. Dumont testified that he alerted Steele, his supervisor, that there was a man with a gun in the parking lot. Du-mont then approached Robinson and told him repeatedly to put the gun on the ground. Robinson denies that Dumont spoke to him, but upon ending his discussion with Porter, he did put the gun in his rear pocket and began walking back to his car. Dumont then grabbed Robinson by the shirt sleeve. The two began to wrestle. Dumont testified that Robinson made it to his car and tossed his gun into the passenger compartment, where it was picked up by the decedent, Larry “Sweet-pea” Williams. Dumont stated that as Robinson continued to wrestle with him while also trying to put the car in gear, Williams pointed the gun in Dumont’s direction. Dumont attempted to maneuver Robinson between himself and the gun, and Williams then turned and waved the gun at the tinted rear window, in the direction of Steele.

¶ 4. Steele fired the first, and ultimately fatal, shot. Dumont, unsure of who was shooting, immediately released Robinson and stepped back from the car. Robinson admitted throwing the gun into the passenger compartment as he sat down in the vehicle, but testified that he did not see Williams handle the gun. Robinson did not hear the first gunshot, but noted that Dumont abruptly released him and kicked the car door shut.

¶ 5. Dumont testified that as he stepped back from Robinson’s car, Steele ordered him to shoot out the tires. Dumont and Steele opened fire, shooting repeatedly at the rear tires.

¶ 6. Robinson’s statements given after the incident conflicted with his trial testimony as to whether he became aware of gunfire as he stopped to turn from the club’s parking lot onto the highway. As he nudged Williams, who was slumped over in the passenger seat, he noticed blood. Robinson testified that Williams asked to leave the car in order to run. Robinson stopped the car and Williams exited. Williams died shortly thereafter. His body was found on the shoulder of the road.

DISCUSSION

¶ 7. Steele’s arguments challenge the weight and sufficiency of the evidence. The force of these arguments is that this case does not, indeed cannot, constitute depraved heart murder. We will analyze this contention before reaching his claims for directed verdict or new trial.

1. Depraved heart murder v. culpable negligence manslaughter

¶ 8. Steele was convicted under the depraved heart murder statute, which states:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual;

Miss.Code Ann. § 97 — 3—19(l)(b) (Rev. 2000).

¶ 9. Steele submits that he lacked the requisite malice to sustain a murder conviction, and is therefore guilty of culpable negligence manslaughter, if he is guilty at all.

¶ 10. The distinction between depraved heart murder and culpable negligence manslaughter can be murky. One attempt at a most logical description of the relationship was set out by the Mississippi Supreme Court in Windham v. State, 602 So.2d 798, 801 (Miss.1992):

Depraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied.

¶ 11. Steele counters with Tait v. State, 669 So.2d 85 (Miss.1996), in which the Mississippi Supreme Court reversed a depraved heart murder conviction, rendering a culpable negligence manslaughter judgment in its place. The issue appeared to turn on the accidental nature of a shooting when a boy was playing with a gun. Id. at 90. Even the Tait court recognized that “[t]his Court’s construction of depraved heart murder as encompassing ‘a reckless and eminently dangerous act directed toward a single individual’ would seem to include the defendant’s- act of pointing a gun at the victim and pulling the trigger.” Id. Nevertheless, the Court then distinguished the case from its nearest factual counterpart, holding no depraved heart murder as a matter of law. Id. See Blanks v. State, 547 So.2d 29 (Miss.1989).

¶ 12. Tait is distinguishable from Steele’s circumstances on several fronts, most notably the absence of accident. Indeed, under Windham, the proper guiding principle is not whether the killing was unintentional or accidental; rather, it is the degree of recklessness employed by the defendant. See Michael H. Hoffheimer, “Murder and Manslaughter in Mississippi: Unintentional Killings,” 71 Miss. L.J. 35, 117 (2001). That degree of recklessness can be reconciled in the cases by resolving the question of the defendant’s intent as to the underlying act (¿a, the shooting), rather than the intent as to the killing. In each of the previously cited cases, the killing was unintentional. However, in cases involving shootings, the courts have consistently upheld convictions of depraved heart murder where the evidence suggested that the firing of a weapon was intentional, not accidental. See, e.g., Turner v. State, 796 So.2d 998 (Miss.2001); Evans v. State, 797 So.2d 811 (Miss.2000); Clark v. State, 693 So.2d 927 (Miss.1997).

¶ 13. Intentionally firing an instrument as deadly as most handguns is often found to be in disregard of the life of others, even if there was no intention to kill or even injure. Indeed, the potential harm arising from being wrong in a belief that a firearm is unloaded is so severe that this Court, over a well-written dissent, found that placing the barrel of a gun believed to be unloaded on a person’s forehead and pulling the trigger could be found by jurors to be in utter disregard for the life of another. Dowda v. State, 776 So.2d 714, 716 (Miss.Ct.App.2000).

¶ 14. Here, the jury was instructed on both depraved heart murder and culpable negligence manslaughter. Both were proper. There is no evidence in the record to suggest that Steele did not intend to shoot. Indeed, Steele’s theory was that he acted intentionally but in self-defense. The choice of verdict among murder, manslaughter, or acquittal turned on fact questions of Steele’s intent as he fired into Robinson’s vehicle. Depraved heart murder was an appropriate verdict.

2. Sufficiency of the evidence

¶ 15. Steele correctly notes that although motions for directed verdict, requests for peremptory “not guilty” jury instructions, and motions for judgment notwithstanding the verdict all attack the legal sufficiency of the evidence, it is the ruling made on the last occasion which is properly before this Court. Wetz v. State, 503 So.2d 803, 807 (Miss.1987).

¶ 16. To consider Steele’s contention that the evidence is insufficient to support his conviction, we must examine both the evidence presented to the jury and the reasonable inferences that arise from that evidence, in a light consistent with the verdict. We may then reverse only if rational and fair-minded jurors could not have found the defendant guilty beyond a reasonable doubt. Brooks v. State, 695 So.2d 593, 594 (Miss.1997).

¶ 17. Steele claims that the State failed to rebut his self-defense theory offered at trial. The burden of rebutting self-defense rests with the prosecution:

The burden of proof in a criminal case never shifts from the State to the defendant. The State is required to prove every material element of the indictment beyond reasonable doubt. Likewise, the defendant is not required to prove that he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, including evidence of self-defense, he must be acquitted.

Sloan v. State, 368 So.2d 228, 229 (Miss.1979).

¶ 18; Here, the jury was properly instructed that Steele need not prove self-defense. The evidence raising self-defense was Dumont’s testimony that as he wrestled with Robinson, he witnessed Williams point a gun at the heavily tinted rear window, in the direction of Steele. Steele also gave a statement to that effect to authorities.

¶ 19. We have discussed above the propriety of the charge of depraved heart murder. We find that from the evidence in the record, a rational and fair-minded juror could have rejected self-defense.

S. Weight of the evidence

¶ 20. Steele further challenges his conviction as contrary to the overwhelming weight of the evidence. Accepting as true the evidence supporting the verdict, we will disturb a jury verdict only when convinced that the verdict will result in an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 21. This standard is admittedly high, but the basis for it is our deference to the jury’s verdict. “Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993). Both the depraved heart murder and culpable negligence manslaughter instructions were given. The question essentially before the jury was how reckless was Steele? The jury resolved that question by convicting of depraved heart murder. We cannot say that this verdict resulted in unconscionable injustice.

¶ 22. Steele is correct that evidence supported a charge of culpable negligence manslaughter. Other evidence also supports the charge of depraved heart murder under which he was convicted. We affirm.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE; COUNT II SHOOTING INTO AN OCCUPIED VEHICLE AND SENTENCE OF FIVE YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, FINE OF $10,000 AND RESTITUTION TO THE CRIME VICTIM’S COMPENSATION FUND WITH SENTENCE IN COUNT II TO RUN CONCURRENTLY TO SENTENCE IN COUNT I IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.

      . Culpable negligence manslaughter is encompassed by statute in Miss.Code Ann. § 97-3-47 (Rev.2000): "Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.”
      Culpable negligence has been further defined judicially as "negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life.” Clayton v. State, 652 So.2d 720, 726 (Miss.1995).


author: SOUTHWICK, P. J„

text:
    Lonnie WEAVER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00312-COA.
    Court of Appeals of Mississippi.
    June 10, 2003.

      Ron Tillman, attorney for appellant.
    Office of the Attorney General by Charles W. Maris, attorney for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   SOUTHWICK, P. J„

for the Court.

¶ 1. In 1989, Lonnie Weaver pled guilty to charges of burglary and armed robbery. He was given a partially suspended sentence. Eleven years later, Weaver sought post-conviction relief on the basis of an illegal sentence. The circuit court denied relief, but this Court reversed, ordering a new trial. Weaver was subsequently tried on the armed robbery charge, convicted and sentenced to a term of twenty-five years. Weaver again appeals, asserting that the lower court erred in retrying only the armed robbery charge, in failing to grant Weaver’s motion to suppress identification evidence, and in failing to direct a verdict in his favor, yielding a jury verdict contrary to the overwhelming weight of the evidence. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. On May 10, 1988, eighteen-year-old Kristy Luse was at home, enjoying the privileges of excused absence often afforded high school seniors at the end of the school year. She heard a light tapping sound on one of the windows, but did not investigate. Moments later, Luse heard a violent banging at the garage door. She made her way down the hallway when she was accosted by an intruder with a gun, later identified as Lonnie Weaver. Weaver demanded to know whether Luse was alone in the house, and whether anyone was expected home. He forced her onto the bed, perhaps beginning a sexual assault, before inexplicably stopping. Weaver demanded that Luse disclose the whereabouts of the family valuables. He brought Luse into her parents’ bedroom, where he took some of her mother’s jewelry. Weaver then pushed Luse onto her parents’ bed, retrieved some lotion from the dresser and resumed his sexual advances. Again, Weaver abruptly broke off, threatening a return visit if Luse ever told anyone. Weaver then left.

¶ 3. Luse ran to the garage and saw Weaver pull away in a bullet-shaped brown car with an older Mississippi license plate. She went to a neighbor’s house, and authorities were notified.

¶ 4. Weaver subsequently pled guilty to charges of burglary and armed robbery. Part of his sentence was suspended. Eleven years later, Weaver sought post-conviction relief, claiming that his suspended sentence on the armed robbery charge was illegal. This Court agreed, finding that Weaver’s fundamental liberty rights were affected despite the fact that he was the beneficiary of an illegally lenient sentence. Weaver v. State, 785 So.2d 1085 (Miss.Ct.App.2001). The Court reversed and remanded. One of the appellate issues today is whether this reversal applied only to the armed robbery charge, a matter we will address below. Weaver was tried before a jury for the armed robbery only. Weaver was convicted and sentenced to twenty-five years imprisonment. His appeal has been deflected here.

DISCUSSION

1. Burglary

¶ 5. Weaver contends that in reversing the lower court’s denial of post-conviction relief, this Court’s implicit mandate granted him an opportunity for retrial on both the armed robbery and burglary charges to which he had previously admitted his guilt.

¶ 6. Our earlier decision regarding Weaver’s post-conviction relief dealt with the issue of a defendant’s right to be free from an illegal sentence. Id. We authorized a grant of post-conviction relief based on Weaver’s liberty interests implicated by his improper sentence on the armed robbery charge. “Because of the erroneous sentencing on the charge of armed robbery, we reverse and remand to the lower court....” Id. at 1088 (emphasis added). Weaver now suggests that this reversal encompassed both charges for which he was convicted.

¶ 7. The opinion in context demonstrates that the only conviction reversed by our analysis was that of armed robbery. Going beyond the language used, we also do not agree that the opinion should have gone further. It is true that Weaver in 1989 pled to two offenses at the same time, apparently under an understanding of what the overall recommendation on sentencing would be. His seven year sentence on the burglary count was to be served concurrently with the longer armed robbery sentence. He therefore would have fully served the seven-year burglary sentence before the filing in 2000 of his post-conviction relief petition. Once an inmate is no longer under the effect of a sentence under a particular conviction, the post-conviction relief procedures are not available to set the conviction aside. Miss. Code Ann. § 99-89-5 (Rev.2000) (inmate must be “in custody under a sentence” that is being attacked). The Supreme Court has found that an inmate may challenge a conviction when the sentence has not yet commenced because the inmate is being incarcerated elsewhere prior to serving the next sentence. Unruh v. Puckett, 716 So.2d 636, 639 (Miss.1998). On the other hand, an inmate cannot use these procedures to challenge a sentence that has already been served even though he is in custody under a sentence for a different crime.

¶ 8. The State argues that even as to the armed robbery conviction, our first Weaver opinion was incorrect. Indeed, this Court has retreated somewhat from Weaver I. We later held that “a defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn around and attack the legality of the illegal, lighter sentence when it serves his interest to do so.” Graves v. State, 822 So.2d 1089, 1092 (Miss.Ct.App.2002), cert. granted 829 So.2d 1245 (Miss.2002), writ withdrawn (May 1, 2003). The Supreme Court has added to the available materials by stating that someone indicted as a habitual offender because of prior felony convictions may nonetheless be given a suspended sentence if as a result of a plea bargain the habitual' charge in the indictment is dropped. It then held that section 47-7-33, which bars a suspended sentence and probation to prior felons, was not an issue because of the court’s analysis of the plea bargain issue. Robinson v. State, 836 So.2d 747, 751 (Miss.2002).

¶ 9. We do not fully understand the Robinson assertion that section 47-7-33 is irrelevant to the availability of probation to a person with prior felonies so long as he was indicted as a habitual offender. Section 47-7-33 does not apparently depend on what is in the indictment but relies on the status of the accused as a prior felon.

When it appears to the satisfaction of any circuit ... that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court ... shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.

Miss.Code Ann. § 47-7-33(1) (Rev.2000) (emphasis added).

¶ 10. We would not find it a particularly obvious legal principle that section 47-7-33 can be circumvented just by the prosecution’s failing to inform the trial judge that an accused about to be sentenced has prior felonies. It is true that the general habitual offender enhancement statutes are raised by language placed in indictments. Miss.Code Ann. §§ 99-19-81 and 99-19-88 (Rev.2000); URCCC 11.03 (for “enhanced punishment,” the “indictment must include both the principal charge and a charge of previous convictions.”) On the other hand, we are not aware of a practice in which a defendant’s status as a convicted felon for purposes of section 47-7-33 restrictions is a matter mentioned in indictments. Thus, there is nothing to drop from an indictment under section 47-7-33. If the trial judge gains in any way knowledge that the defendant is a prior felon, such as from the habitual felon allegation in the indictment no matter what a plea bargained away, as well as from information contained in any presentence report, then the judge would seem to have an obligation to enforce the statutory command not to suspend the sentence and give probation.

¶ 11. As already noted, the Supreme Court issued but then withdrew a writ of certiorari in Graves v. State, 822 So.2d 1089. The Supreme Court’s recent Robinson case raises new questions. Nothing in these developments suggests that Weaver was not given broad enough relief when we reversed solely his conviction on one of the two offenses to which he pled guilty.

¶ 12. Weaver also finds error in the State’s use of the burglary conviction in prosecuting the armed robbery count. During a hearing on pretrial motions, the district attorney sought to introduce Weaver’s admission to the burglary for purposes of identification. Weaver countered by arguing that the prejudicial effect of such evidence outweighed its probative value. The lower court properly concluded that the burglary conviction had been upheld by this Court, and took judicial notice at trial of Weaver’s admission to breaking into the house.

¶ 13. An evidentiary rule provides that probative evidence, if greatly outweighed by unfair prejudice, may be excluded. M.R.E. 403. This appellate court is governed by standards of review which look to a lower court’s abuse of discretion rather than independently balancing the probative value and prejudicial effect of evidence. Baldwin v. State, 784 So.2d 148, 158 (Miss.2001). Weaver’s confession to burglarizing the Luse home contemporaneously to the occurrence of an armed robbery was undoubtedly “prejudicial” to his defense since it indicated guilt. Nonetheless, an incriminating admission by a criminal defendant is highly probative, defined as “a statement by the accused — it may be direct or implied' — of facts pertinent to the issue and [tending] in connection with other facts to prove his guilt.” Price v. State, 749 So.2d 1188, 1195 (Miss.Ct.App.1999). We find no error with the lower court’s weighing of evidentiary value and prejudicial detriment.

¶ 14. We further note that the trial court contained any unfair prejudice the admission may have caused Weaver by limiting the evidence presented to the jury to judicial notice of the fact of Weaver’s admission. Generally, evidence of an accused’s other crimes is inadmissible. M.R.E. 404(b). However, in limited circumstances such as proof of identity or when other acts are “so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences,” evidence may be admitted. Ott v. State, 742 So.2d 1197, 1201 (Miss.Ct.App.1999) (quoting Neal v. State, 451 So.2d 743, 759 (Miss.1984)).

¶ 15. Here, both such circumstances were met. Because admissibility of evidence is entrusted to the discretion of the trial court, we will defer to its rulings absent abuse. Reynolds v. State, 784 So.2d 929, 932 (Miss.2001). We do not find error in admitting Weaver’s admissions.

2. Identification evidence

¶ 16. Weaver further contends that identification evidence based on photographs not available for defense purposes was improperly admitted at trial. Weaver submits that Kristy Luse, during the 1988 criminal investigation, worked from photographic lineups to identify both Weaver and the brown Chevrolet Chevette he used to drive away from the scene. Weaver argues that, pursuant to Rule 9.04(A) of the Uniform Circuit and County Court Rules, he was entitled to an opportunity to review the photographic lineup to determine “if it was unreasonably suggestive or if it was exculpatory in favor of the Defendant.” The lineups no longer existed at the time of trial.

¶ 17. The lower court held a pretrial suppression hearing, considering testimony from the investigating officers and from Luse before ruling that the elapsed time between Weaver’s initial plea and the retrial constituted a “reasonable reason as to why the photographs are not available.” The lower court further held that the testimony failed to demonstrate anything improper about the identification process sufficient to warrant exclusion, and admitted the testimony at trial.

¶ 18. Although Weaver argues a discovery violation by the State, the issue is properly characterized as one of spoliation of evidence. “The State has the duty to preserve evidence, but that duty is limited to that evidence which ‘might be expected to play a significant role in the suspect’s defense.’ ” Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).

¶ 19. The test employed in spoliation analysis is two-pronged. Northup v. State, 793 So.2d 618, 623 (Miss.2001). Initially, we determine whether the lost evidence’s role in Weaver’s defense would have been significant. “To play a significant role, the exculpatory nature and value of the evidence must have been apparent before the evidence was lost.” Id. At the suppression hearing, the lower court ruled that the photographs were not essential to Weaver’s defense. There has been no defensible suggestion of impropriety in the identification of Weaver from the time of his original plea in 1989 through post-conviction relief, the subsequent trial, and the current appeal. We do not find that the missing photographic lineups would have played a “significant role” in the trial.

¶ 20. As a result, the second prong for our determination, though weighing in Weaver’s favor, is nevertheless moot. The test is whether the defendant could have obtained by other means comparable evidence to that lost by the State. Northup, 793 So.2d at 623. Weaver had no way to obtain similar evidence to the photographic lineups. However, the absence of the “significant role” such evidence would have played in Weaver’s defense satisfies the analysis in favor of the lower court’s denial of his requested new trial.

3. Weight and sufficiency of the evidence

¶ 21. Finally, Weaver contends that the lower court erred in denying his motion for judgment notwithstanding the verdict, or in the alternative, a new trial. This raises separate challenges both to evidentiary weight and evidentiary sufficiency. We have addressed the underlying bases for Weaver’s challenge, which he characterized as inadmissible evidence tainting the trial’s outcome. Therefore, we undertake a review of evidentiary weight and sufficiency allowing for the admissibility of Weaver’s confession and the identification evidence.

¶ 22. In considering whether a lower court’s denial to enter a judgment notwithstanding the verdict is proper, we review the evidence in the light most favorable to the State, including all favorable inferences which reasonably may be drawn. Jackson v. State, 815 So.2d 1196, 1202 (Miss.2002). If a reasonable person could not arrive at the same verdict, we must reverse. Id. Here, an accused admitted to his presence at the scene, and was positively identified by his victim, both during initial investigations and at trial. A reasonable person could assign guilt to Weaver.

¶ 23. In a similar, yet distinct, analysis, we consider evidentiary weight not from the perspective of the fact-finding juror, but rather from that of the law-giving judge. We will not set aside a verdict and order a new trial unless to allow the verdict to stand would constitute an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Here the weight of evidence supporting Weaver’s conviction is overwhelming. We will not set his conviction aside.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES CURRENTLY BEING SERVED IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.

      . As a previously convicted felon, Weaver was ineligible to receive a suspended sentence. See Miss.Code Ann. § 47-7-33 (Rev.2000).


author: JOHNSTONE, Justice.

text:
    Jerry MOORE v. Clyde CROCKER.
    1992321.
    Supreme Court of Alabama.
    April 12, 2002.
    Rehearing Denied Jan. 31, 2003.
    Robert H. Turner, Jr., Marion, for appellant.
    James W. Porter II and Robert D. Henry of Porter, Porter & Hassinger, P.C., Birmingham, for appellee.
   JOHNSTONE, Justice.

The plaintiff Jerry Moore appeals a summary judgment in favor of the defendant Clyde Crocker, a police officer of the City of Brent, located in Bibb County. Moore sued Crocker and others for torts allegedly committed in arresting Moore without a warrant at Moore’s home in Marion in Perry County, transporting him to Brent, and jailing him there overnight without charging him. Moore asserted, among other theories, assault and false imprisonment. Crocker asserted, among other defenses, peace officers’ immunity pursuant to § 6-5-338, Ala.Code 1975. We reverse and remand.

The order by the trial court states the operative facts and reveals the dispositive issue:

“This matter is before the Court on the motion for summary judgment of the Defendant, Clyde Crocker. The other Defendants have been dismissed by pri- or order of this Court.
“The undisputed facts relevant to this motion are that Officer Clyde Crocker at the time of the events complained of was employed as a police officer by the City of Brent located in Bibb County, Alabama. Acting on instructions from his Chief of Police, Officer Crocker and Officer Stewart Deerman, also of the Brent Police Department, proceeded to Marion in Perry County to the home of the Plaintiff, Jerry Moore. Crocker had been directed by the Brent Chief of Police to arrest Moore and bring him back to Brent for questioning regarding items that had been reported stolen from a residence in Brent, Alabama. He was acting on information given to him by Sharon Jones, whose mother was living with Mr. Moore, the Plaintiff.
“Crocker and Deerman went to Moore’s house and told him why they were there. Crocker searched Moore’s house but did not find any of the items. He then handcuffed Mr. Moore and transported him to the City of Brent and turned him over to the Chief of Police. Mr. Moore was placed in jail by another officer and released the next day without ever having been charged. He contends that these actions by Crocker amounted to false imprison-menVarrest and an assault and battery.
“Crocker contends that he is entitled to discretionary function immunity pursuant to Section 6-5-338[, Ala.Code 1975.] That Code section provides that every ‘peace officer ... shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.’ Alabama caselaw has established that discretionary function immunity shields police officers who make an arrest based on probable cause even if the person arrested is ultimately acquitted. [Moore] contends, however, that Crocker did not have the authority to arrest Moore because he had no warrant and because he was outside his jurisdiction. Prior to the [adoption] of Rule 3.3 of the Alabama Rules of Criminal Procedure, Section 15 — 10—1[, Ala.Code 1975], controlled and stated that an arrest may only be made with or without a warrant by officers acting within their respective jurisdiction. The Alabama Court of Criminal Appeals has held in Smith v. State, 727 So.2d 147 (Ala.Crim.App.1998), that Rule 3.3 supersedes Section 15-10-1. That rule provides that any law enforcement officer within the State of Alabama may execute a warrant anywhere within the State of Alabama. In Smith, the Court ruled that an officer who has probable cause to arrest may do so anywhere within the State of Alabama pursuant to Rule 3.3. Because it appears that it is undisputed that the Brent Police Officers had probable cause to arrest Mr. Moore based upon the statements of the witness, Crocker was authorized to arrest him.
“Accordingly, the Court finds that Crocker is entitled to discretionary function immunity and his motion for summary judgment is due to be granted. The Court hereby grants [Crocker’s] motion for summary judgment and enters judgment in his favor.”

The place of the arrest, Marion in Perry County, is over 20 miles from the City of Brent in Bibb County, and is outside the police jurisdiction of the City of Brent, which employed Crocker as a police officer.

Section 6-5-338, Ala.Code 1975, invoked by Crocker, provides in pertinent part:

“(a) Every peace officer ... shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties.”

This statute, by its terms, extends state-agent immunity to peace officers performing discretionary functions within the line and scope of their law-enforcement duties. Our plurality decision of Ex parte Cranman, 792 So.2d 392 (Ala.2000), adopted by a majority of this Court in Ex parte Butts, 775 So .2d 173 (Ala.2000), and Ex parte Rizk, 791 So.2d 911 (Ala.2000), restated the law of state-agent immunity in Alabama. Cranman reads, in pertinent part:

“IV. Restatement of the Rule Governing State-agent Immunity
“We therefore restate the rule governing State-agent immunity:
“A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent’s
“(4) exercising judgment in the enforcement of the criminal laws of the State, including but not limited to, law-enforcement officers’ arresting or attempting to arrest persons ....
“Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
“(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.”

Ex parte Cranman, 792 So.2d at 405 (emphasis in paragraphs (4) and (2) added; other emphasis original). In Newton v. Town of Columbia, 695 So.2d 1213, 1217 (Ala.Civ.App.1997), our Court of Civil Appeals aptly held:

“[I]f the location of the incident made the basis of Ms. Newton’s complaint was indeed outside the police jurisdiction of the town, as she has affirmed in her affidavit, Armstrong may not assert any privilege that might otherwise inure to him in his role as a police officer. ‘[A]n officer may not claim justification for an assault where he exceeds the authority given him in the particular case.’ 6A C.J.S. Assault & Battery § 27.”

Section 15-10-1, Ala.Code 1975, restricts a police officer’s authority to arrest to the limits of the county containing the city or town which employs the police officer:

“An arrest may be made, under a warrant or without a warrant, by any ... policeman of any incorporated city or town within the limits of the county.” (Emphasis added.)

Crocker cannot rely on Rule 3.3, Ala. R.Crim. P., for his authority to arrest Moore without a warrant outside the limits of Bibb County, where the City of Brent is located. Rule 3.3 reads:

“(a) By Whom. The arrest warrant shall be directed to and may be executed by any law enforcement officer within the State of Alabama.
“(b) Manner of Execution. An arrest warrant shall be executed by arrest of the defendant.
“(c) Return. The law enforcement officer executing an arrest warrant shall endorse thereon the manner and date of execution, shall subscribe his name, and shall return the arrest warrant to the clerk of the court specified in the arrest warrant.”

First, Rule 3.3 governs only the execution and return of arrest warrants. Crocker does not claim that he had any arrest warrant or search warrant. Second, in Ex parte Borden, 769 So.2d 950 (Ala.2000), this Court held that Rule 3.3 does not eliminate statutory jurisdictional restrictions on a law-enforcement officer’s authority to arrest. Borden explains:

“The phrase ‘within the State of Alabama ’ merely completes the description of the category of persons who may obtain and execute arrest warrants, to include all law enforcement officers within that category. The Committee Comment to Rule 3.3 so indicates:
“‘The rules provide a functional definition of “law enforcement officer.” Under the definition contained in Rule 1.4(p), anyone who serves as an officer, employee, or agent of the State of Alabama who has a legal duty to maintain order and to make arrests (whether in a general or limited capacity) will be considered a “law enforcement officer” and will be able to execute arrest warrants.’
“We conclude that the phrase ‘within the State of Alabama’ does not address the question where arrest warrants may be executed, but only the question who may obtain and execute them. The statutory restrictions on where arrest warrants, once issued, may be executed remain binding, to protect the public from impostors and to prevent the unexplained disappearance of people from the county.
“Section 15-10-10, which the officers violated in this case, is a public safety statute. It allows a judge or magistrate in a particular county to pass on the validity of an arrest warrant issued elsewhere and to pass on the identity and authority of the person who proposes to execute the warrant before that person may take someone there into custody and away from the county. Nothing in this statute conflicts with Rule 3.3(a), Ala. R.Crim. P., so as to imply that Rule 3.3(a) supersedes or preempts the statute.”

769 So.2d at 959 (final emphasis, except emphasis on “where,” added; emphasis on “where” and other emphasis original). This reasoning applies with equal if not greater force to warrantless arrests, like the one we are considering in this case before us, which are governed by § 15 — 10— 1.

Crocker cites Smith v. State, 727 So.2d 147 (Ala.Crim.App.1998), for the proposition that Rule 3.3 supersedes § 15-10-1 and authorizes any law-enforcement officer within the State of Alabama to execute a warrant anywhere within the State of Alabama. In Borden, we observed that Smith was “based on a mistakenly expansive reading of Rule 3.3(a), Ala. R.Crim. P.” 769 So.2d at 959.

Crocker’s arresting Moore outside the county containing the city employing Crocker exceeded his authority and therefore forecloses his claim of peace officer immunity under § 6-5-338. Therefore, the trial court erred to reversal in granting Crocker’s motion for a summary judgment.

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur.

SEE and STUART, JJ., concur in the result.


author: SEE, Justice. JOHNSTONE, Justice

text:
    Ex parte ORGANIZED COMMUNITY ACTION PROGRAM, INC. (In re Elizabeth White v. Organized Community Action Program, Inc.)
    1010316.
    Supreme Court of Alabama.
    Aug. 30, 2002.
    Rehearing Denied Dec. 20, 2002.

      Paul Myriek and Scott Hetrick of Adams & Reese, L.L.P., Mobile; and Jack B. Weaver of Weaver & King, Monroeville, for petitioner.
    J. Milton Coxwell, Jr., of Coxwell & Coxwell, Monroeville, for respondent.
   SEE, Justice.

Elizabeth White was employed as a Head Start teacher for the Organized Community Action Program, Inc. (“OCAP”). On August 23, 1999, OCAP notified White that because she had failed to comply with OCAP’s career-development requirements, it would not rehire her at the beginning of the school year. White asked the Equal Employment Opportunity Commission (“EEOC”) for information about filing an action against OCAP for alleged age discrimination in its decision not to rehire her.

On March 1, 2000, White formally filed an age-discrimination charge with the EEOC against OCAP. Her charge stated that the discrimination occurred on August 23, 1999. In June 2000, White filed a complaint against OCAP in the Monroe Circuit Court. The complaint alleged age discrimination in employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). OCAP answered, asserting as an affirmative defense that White’s claim was time-barred because she did not file an age-discrimination charge with the EEOC within 180 days after the date of the alleged unlawful employment practice.

On January 18, 2001, OCAP moved for a summary judgment in the Monroe Circuit Court action based on White’s untimely filing of her EEOC claim. In support of its summary-judgment motion, OCAP filed a statement of facts and a brief. White filed her own affidavit in opposition to the summary-judgment motion, alleging that she had sent a letter to the EEOC before the 180-day deadline for filing her charge had passed, and that on February 15, 2000, an EEOC representative had telephoned her to discuss her claims. She stated in her affidavit that “[her] written letter which contained [her] claim of age discrimination was received by the EEOC in Birmingham in late January or early February, 2000, which was .less than six months after [her] discharge from employment.” White did not produce a copy of her letter.

OCAP filed a response, arguing that White’s contention that she had sent a letter to the EEOC was not supported by substantial evidence. OCAP argued that White’s letter, even if the EEOC received it, did not qualify as a “charge” against OCAP because, it argued, an EEOC charge must be verified, and the letter was not written under oath or affirmation. See, e.g., Gonzalez v. Hoechst Celanese, No. C.A. C-9-125 (S.D.Tex., Dec. 1, 1997)(not published in F.Supp.); Danley v. Book-of-the-Month Club, Inc., 921 F.Supp. 1352 (M.D.Pa.1996). OCAP also moved to strike those portions of White’s affidavit in which she explained the contents of her alleged letter to the EEOC.

In February 2001, the trial court granted OCAP’s motion to strike those portions of White’s affidavit and entered a summary judgment for OCAP. White did not appeal. Instead, on April 10, 2001, she filed what she styled as a “motion for new trial or rehearing.” The trial court treated this motion as a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the summary judgment. More than two months later, on June 21, 2001, White filed with the trial court a copy of her original letter to the EEOC and the affidavit of an EEOC employee, Donald Burris. White also filed with the letter and affidavit a statement that those documents established that her EEOC charge was timely filed. OCAP moved to strike White’s filing as untimely.

The trial court scheduled a hearing on White’s Rule 59(e) motion for July 16, 2001. After the hearing was scheduled, the trial court realized that it had set the hearing date after the expiration of the 90-day period in which a trial court can dispose of pending postjudgment motions. See Rule 59.1, Ala. R. Civ. P. Rather than deny the motion through inaction, the trial court, without a hearing, granted the motion to avoid prejudicing White. OCAP moved for reconsideration of the decision to grant White’s motion, and it moved to strike Burris’s affidavit.

The trial court denied OCAP’s motions after a hearing, writing:

“Less than thirty days after the court’s order and entry of final judgment, Ms. White filed a ‘motion for new trial or rehearing,’ which this Court construed as a Rule 59(e) motion to vacate the summary judgment. Two months after that, Ms. White filed an affidavit of Donald Burris, an EEOC official.
“This court finds that the Donald Burris affidavit creates a genuine issue of material fact on whether the Plaintiffs EEOC charge was timely filed. This factual dispute is the sole basis for this court’s decision to grant the Plaintiffs motion for rehearing and to vacate the summary judgment in favor of OCAP.”

OCAP now petitions for a writ of mandamus directing the trial judge to vacate its order granting White’s motion and to reinstate the summary judgment for OCAP. OCAP alleges that the trial court did not have jurisdiction to consider the affidavit and the letter White filed more than two months after the trial court entered the summary judgment.

In Moore v. Glover, 501 So.2d 1187, 1189 (Ala.1986), this Court held:

“[P]laintiffs motion, with its attached exhibit and affidavit, sought to have the trial court reconsider its grant of summary judgment in fight of the new evidence (as opposed to ‘newly discovered evidence’) belatedly submitted by plaintiff. This is not the purpose of a Rule 59(e) motion. A motion for reconsideration made after the entry of an order granting a summary judgment is not proper where the motion is ... simply used by the plaintiff to submit evidence, belatedly, in opposition to the defendant’s motion for summary judgment.”

(Emphasis omitted.) This Court has also stated that “ ‘ “[t]he trial court can consider only that material before it at the time of submission of the motion” and ... any material filed thereafter “comes too late.” ’ ” Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 20 (Ala.1991)(quoting Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101 (Ala.1987)).

In Bean, the Beans submitted a filing in opposition to State Farm’s motion for a summary judgment, but did not file any affidavits or depositions with that filing. After the trial court granted State Farm’s motion for a summary judgment, the Beans filed a “Motion for Relief’ from the summary judgment. They included affidavits and deposition testimony with their motion. The trial court denied the Beans’ motion because the affidavits and depositions filed with their motion were not before the court when it ruled on State Farm’s summary-judgment motion. This Court affirmed the trial court’s summary judgment.

Similarly, White supported her motion with an affidavit and a copy of the letter she had sent to the EEOC. “[H]ad plaintiff offered a proper explanation for [her] failure to offer that additional evidence in response to defendant’s motion for summary judgment, the trial court could have considered it in deciding whether to amend or vacate its entry of summary judgment.” Moore, 501 So.2d at 1189. White has made no showing that this evidence was newly discovered, that is, that it was discovered after the trial court entered its summary judgment, nor has she offered any other explanation for her delay in filing the supporting documents. Because the trial court stated that this belatedly submitted evidence was the sole basis for granting what it construed as a Rule 59(e) motion to vacate, alter, or amend the summary judgment, the grant of White’s motion was based on evidence that the trial court should not have considered. We therefore grant OCAP’s petition for the writ of mandamus and issue the writ directing the trial court to vacate its order granting White’s motion and to reinstate the summary judgment for OCAP.

PETITION GRANTED; WRIT ISSUED.

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

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. In the affidavit White submitted on January 29, 2001 in opposition to the motion for summary judgment, she did explain why her submission of the letter itself would be delayed: “I am attempting to find a copy of this letter and will file it in this case if found.” The trial court did not hear the motion for summary judgment or the motion to strike until February 28, 2001 and did not grant those motions until March 21, 2001. Less than 30 days later, on April 10, 2001, White filed her “Motion for New Trial or Rehearing” and thereby preserved the jurisdiction of the trial court to reconsider the summary judgment and the later-filed letter and affidavit. “Rule 6(d), A.R. Civ. P., allows the trial court discretion to permit the service of affidavits that might otherwise be untimely, and its decision to accept such affidavits will not be reversed absent an abuse of discretion.” Middaugh v. City of Montgomery, 621 So.2d 275, 279 (Ala.1993). To like effect is Speer v. Pin Palace Bowling Alley, 599 So.2d 1140, 1142 (Ala.1992): “According to Rule 56(c), A.R. Civ. P., if the nonmoving party files an affidavit in opposition to a summary judgment motion, the affidavit shall be served prior to the day of the hearing on the motion. However, Rule 6(d), A.R. Civ. P., qualifies Rule 56(c) by placing it within the trial court’s discretion to permit, or to refuse to consider, an affidavit that is untimely.” The trial court acted within its discretion in considering the later-filed letter and affidavit. Middaugh and Speer, supra. I respectfully submit that the trial court is entitled to rehear the summary judgment.

MOORE, C.J., concurs.


author:
MOORE, Chief Justice. JOHNSTONE, Justice
      LYONS, Justice MOORE, Chief Justice. JOHNSTONE, Justice

text:
    EASTSIDE DEVELOPMENT, INC., et al. v. MEDICAL PLAZA EAST, POB, LLC, et al. Medical Plaza East, POB, LLC, et al. v. Eastside Development, Inc., et al.
    1010342 and 1010525.
    Supreme Court of Alabama.
    Sept. 20, 2002.
    Order Overruling Rehearing Jan. 10, 2003.
    G. Thomas Sullivan of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellants/cross-appellees East-side Development, Inc., Eastern Health System, Inc., and Medical Center East, Inc.
    John P. Scott, Jr., and Joshua H. Threaderaft of Starnes & Atchison, L.L.P., Birmingham, for appellees/eross-appellants Medical Plaza East, POB, LLC, and Dr. William C. Wood.
   MOORE, Chief Justice.

1010342 — AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

SEE, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE, J., concurs in part and dissents in part.

HOUSTON, LYONS, and WOODALL, JJ., dissent.

1010525 — AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

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

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I respectfully dissent from affirming the trial court in its denying the removed general partner Eastside Development, Inc., a distributive share of the partnership assets. I join in Justice Lyons’s dissent on this issue. I concur in affirming the trial court in all of its other appealed rulings.

LYONS, Justice

(concurring in case no. 1010525 and dissenting in case no. 1010342).

I dissent from the majority’s decision to affirm the trial court’s judgment without opinion in case no. 1010342.

In 1982, a group of physicians from Medical Center East, Inc., a subsidiary of Eastern Health System, Inc. (“EHS”), and Eastside Development, Inc. (“Eastside”), formed a limited partnership known as Medical Plaza East, Ltd. (“the Partnership”), in which Eastside would serve as both limited partner and general partner. The Partnership was formed for the purpose of funding the construction of a professional office building. In forming the Partnership, the limited partners made capital contributions to the Partnership, and both the limited partners and the general partner executed a partnership agreement to govern the rights and duties of the partners.

The Partnership continued in its original form until 1996, when a majority of the limited partners, in compliance with the partnership agreement, voted to remove Eastside as general partner. Section 14.1(d) of the partnership agreement lists removal of the general partner as a specific event of dissolution of the limited partnership. However, § 14.2 allows the Partnership to avoid dissolution if the limited partners vote unanimously to reform the Partnership and to appoint a new general partner within 30 days of the removal of the previous general partner. The limited partners who were physicians attempted to use § 14.2 to appoint Medical Plaza East, POB, LLC (“the LLC”), as the new general partner. Eastside defeated this effort by voting as a limited partner to prevent reformation. Consequently, dissolution of the Partnership commenced. The physician limited partners then selected the LLC as the Partnership’s special liquidator for dissolution, as required by § 14.3 upon the removal of a general partner. After its appointment, the LLC began the dissolution of the Partnership. The litigation in this case began at that time.

The procedural history of the numerous claims, judgments, and appeals between 1996 and the present is extensive and complex. However, the scope of this dissent requires discussion of only the issues relevant to the present appeal. On November 14, 2000, the trial court entered an order concluding that Eastside was not entitled, as the former general partner, to a distribution of the Partnership assets from the liquidation, under its interpretation of § 14.3 of the Partnership Agreement. The trial court concluded that the partnership agreement did “not clearly address the issue of distribution of assets where the General Partner has been removed.” The trial court found that § 14.3 and § 8.3 “do not entitle a former General Partner to distribution at the time of dissolution.” Eastside and EHS appealed, arguing four issues, one of which is that § 14.3 and § 8.3 of the partnership agreement provide for distribution of Partnership assets to a removed general partner upon dissolution of the Partnership.

One might argue that § 14.2 provides authority for the conclusion that the drafters of the partnership agreement would have used the phrase “removed General Partner” in § 14.3 if they had intended the references to “the General Partner” in § 14.3 to include a removed general partner in the context of a right to participate in distribution of the proceeds upon dissolution. However, § 14.2, which describes what happens upon the removal of the general partner, does not consistently refer to a general partner who has been removed as a “removed general partner.” Section 14.2 refers to a removed general partner as simply “the General Partner” when dealing with the closely related issue of compensating a removed general partner for its interest upon reformation. Consequently, § 14.2 is not authority for reading § 14.3 as excluding a removed general partner when the phrase “General Partner” is used in § 14.3.

One might point to the buyout provision applicable to a removed general partner on reformation, arguing that Eastside takes nothing because it made no capital contribution and, thus, because it did not invest originally as general partner, it therefore held no percentage of the value of the partnership in that capacity. From this, one might conclude that a removed general partner takes nothing on reformation and thus a similar result on dissolution under § 14.3 is defensible. I disagree. The partnership agreement cannot be interpreted to provide nothing to a removed general partner on reformation. Section 8.1 provides that, in the general allocation of profits, the limited partners are entitled to 95% of the profits and the general partner 5% of the profits until the limited partners recoup their capital contributions. At that point, the general partner is entitled to 20% of the profits. A removed general partner would thus hold at least a 5% interest, and at most, a 20% interest in the partnership. Upon reformation, pursuant to § 14.2, it would receive a percentage of fair market value “of the General Partner’s interest in the Partnership” based upon the status of the limited partners’ recoupment of contributions. To hold otherwise attributes to the drafters of the partnership agreement an intent to include a meaningless formula in § 14.2 for compensation of a removed general partner, because they are charged with knowledge that the partnership agreement did not require a capital contribution from the general partner.

The formula for payment to the general partner on dissolution under § 14.3 is essentially the same as previously outlined with reference to § 14.2. The general partner is entitled to 20% of excess value of the partnership after each limited partner has been made whole for his or her capital contribution. This scheme matches the provision for the distribution of profits in § 8.1. Under § 14.2 and § 14.3, the general partner, either removed or otherwise, shares to the same extent in a buyout under reformation, distribution, or dissolution.

I must therefore respectfully dissent from the majority’s affirmance of the trial court’s conclusion that, pursuant to § 14.3 of the partnership agreement, Eastside is not entitled to any distribution of profits upon the dissolution of the Partnership.

HOUSTON, JOHNSTONE, and WOODALL, JJ., concur.

On Application for Rehearing

MOORE, Chief Justice.

APPLICATION OVERRULED.

HOUSTON, SEE, BROWN, HARWOOD, and STUART, JJ., concur.

LYONS and JOHNSTONE, JJ., concur in part and dissent in part.

WOODALL, J., dissents.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I respectfully dissent from overruling the application for rehearing insofar as it asks us to revisit the affirmance of the trial court in its denying the removed general partner Eastside Development, Inc., a distributive share of the partnership assets. In all other respects, I concur in overruling the application for rehearing.

LYONS, J., concurs.

      . As the general partner, Eastside did not make any capital contribution to the Partnership.

      . Section 14.2 reads as follows:
      " § 14.2 Reformation of Limited Partnership Under Certain Circumstances: If at any time there is no General Partner in office as a result of the removal, resignation, retirement, death or bankruptcy, insolvency, insanity or mental incapacity of all General Partner[s], the remaining Partners may unanimously vote to reform the Partnership and elect one or more successor general partners to continue the business of the Partnership.... In the event of such reformation, the successor General Partner(s) shall continue the business of the Partnership, in a reconstituted form as a successor limited partnership, upon the same terms and conditions as are set forth in this Certificate and Agreement.... In connection with any removal pursuant to Section 14.1 ..., the successor General Partner(s) shall either purchase the interest(s) in the Partnership of his or her predecessor(s) at a price equal to the amount in the General Partner's capital account in the Partnership and the fair market value of the General Partner's interest in the Partnership as of the date of such removal or occurrence or other event or cause the Partnership to purchase such interest(s) in the Partnership with payment under either such alternative to [be] made in cash no later than the 60th day following the receipt of notice by the removed General Partner required by Section 12.2 hereof. The determination as to such value shall be made as provided below. If the previous General Partner (or his successor in interest) and the successor General Partner shall fail to agree as to the value of the interest of the previous General Partner, such value shall be determined by arbitration...."

      . Section 14.3 reads as follows:
      " § 14.3 Dissolution and Winding Up: In the event of a dissolution of the Partnership in accordance with Section 14.1(a), (b) or (c) above, the General Partner (or in the event of a dissolution in accordance with Section 14.1(d) or other case in which the General Partner fails or refuses to act, a special liquidator appointed by a majority in interest of Limited Partners) shall immediately commence to wind up the affairs of the Partnership and shall liquidate the assets of the Partnership as promptly as possible, but in an orderly and business-like manner so as not to involve undue sacrifice .... The proceeds of liquidation, and the remaining assets, if any, shall be applied and distributed in the following order of priority:

      "(f) to the General Partner[s] in accordance with their respective interest in any Partnership distribution as provided in Section 8.3 hereof.”

      . Section 8.3 reads as follows:
      § 8.3 Refinancing or Sale of Partnership Property: The General Partner shall distribute, as soon as practicable after receipt thereof by the Partnership, all or any portion of the Partnership’s share of the proceeds (hereinafter referred to as 'Sale or Refinancing Proceeds') from any sale, exchange, foreclosure or abandonment, or refinancing of the Project or any portion thereof. Of such Sale or Refinancing Proceeds, (1) one hundred percent (100%) thereof shall be distributed to the Partners, in proportion to each such Partner’s Net Capital Contribution to the Partnership until each Partner has received an amount equal to one hundred percent (100%) of his Net Capital Contributions (as such term is hereinafter defined) to the Partnership provided that the General Partner shall receive at least one percent (1%) of the Sales or Refinancing Proceeds in any event, and (2) thereafter, any remaining excess of such Sale or Refinancing Proceeds shall be distributed eighty percent (80%) thereof to the Limited Partners, and twenty percent (20%) thereof to the General Partner. If total distributed Sales Proceeds are insufficient to return to Partners an amount equal to one hundred percent (100%) of their Net Capital Contributions, the difference from the proceeds of such sale, shall thereafter constitute the amount of their Net Capital Contributions for the purpose of allocating further distributions of Sales or Refinancing Proceeds among the Partners and the General Partner....”

      . Section 8.1 reads as follows:
      "§ 8.1 Allocation of Profits and Losses: Profits and losses of the Partnership shall be shared by the Partners as herein specified without regard to the amounts in their respective capital accounts.... [T]he determination of each Partner's distributive share of any Partnership item of income, gain, loss, deduction, credit or allowance for any Partnership accounting period shall be made in accordance with the following allocations:
      "(a) to the Limited Partners, collectively, ninety-five percent (95%) of the Partnership’s profits and losses shall be allocated among them on a pro rata basis according to the number of Capital Units held by each Partner; until such time as the distributions of net cash to the Partners equal the sum of the amount of the Partner’s aggregate cash contributions to the Partnership less any previous distributions made to the Partners and thereafter eighty percent (80%) of such profits and losses shall be allocated to the Partners; and
      "(b) to the General Partner, five percent (5%) of the Partnership’s profits and losses shall be allocated to it until such time as the Partners have received the amount specified in subpart (a) above, thereafter twenty percent (20%) of the Partnership’s profits and losses shall be allocated to the General Partner.”


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte Linda Harrison HOUSE. (In re Linda Harrison House v. Larry Ray House).
    1012219.
    Supreme Court of Alabama.
    Nov. 22, 2002.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham; and Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham, for petitioner.
    Bruce L. Gordon and Jason E. Gilmore of Gorden, Gibbons & Peacock, L.L.C., Birmingham, for respondent.
   STUART, Justice.

WRIT DENIED. NO OPINION.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and WOODALL, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I respectfully dissent from the denial of the petition for a writ of certiorari in this case. I would grant the petition because I believe Linda House has demonstrated a true conflict between the no-opinion affir-mance by the Court of Civil Appeals in this case and the decisions in Holland v. Holland, 406 So.2d 877 (Ala.1981), and Price v. Price, 705 So.2d 488 (Ala.Civ.App.1997).

According to Ms. House’s petition, the Shelby Circuit Court held as follows in its October 5, 2001, order:

“1. [Ms. House] claims that [Mr. House] owes her an additional $1,427,448.50, plus interest, for stock which she claims that he did not convey to her pursuant to certain provisions as set forth in Paragraph No. 20 of the Agreement of the parties which was made a part of the Final Judgment of Divorce which was entered by the Court on December 22, 1997. [Mr. House] contends that the parties subsequently modified their original Agreement, as set forth in Paragraph No. 20 thereof, and that, pursuant to the modified Agreement, [Mr. House] has discharged in full his modified obligations to [Ms. House]. The Court FINDS said issue in favor of [Mr. House], and the relief which [Ms. House] has requested is DENIED. (C. 106.)”

(Emphasis added.) On appeal, the Court of Civil Appeals affirmed the trial court’s order without an opinion, citing in its no-’ opinion affirmance Smyth v. Smith, 667 So.2d 717 (Ala.1995), and Big Thicket Broadcasting Co. v. Santos, 594 So.2d 1241 (Ala.Civ.App.1991).

In her petition, Ms. House asserts that the Court of Civil Appeals’ affirmance of the trial court’s order conflicts with Holland and Price, supra. In Holland, this Court held that “parties to a divorce decree may not change or modify the decree merely by an agreement between themselves.” 406 So.2d at 879. “[A] final judgment or decree may not be modified or amended by a subsequent agreement between the parties.” Id. Likewise, in Price the Court of Civil Appeals held:

“An agreement that is merged into a judgment loses its contractual nature and is subject to the equity power of the court. Ex parte Owens, 668 So.2d 545 (Ala.1995). Parties to a divorce may not change or modify the divorce judgment by an agreement between themselves. Holland v. Holland, 406 So.2d 877 (Ala.1981). Therefore, the 1993 amendment to the separation agreement did not modify the husband’s alimony obligation.”

Price, 705 So.2d at 489 (emphasis added).

Larry House concedes in his reply brief to this Court that “the parties to a divorce [judgment] cannot modify the [judgment] by an agreement among themselves.” Mr. House, however, argues that “there was no modification of the Final Judgment.”

I disagree with Mr. House’s interpretation of the trial court’s order. The October 5, 2001, order specifically addresses Mr. House’s contention that “the parties subsequently modified their original Agreement,” and that Mr. House had “discharged in full his modified obligations.'” (Some emphasis added.) The trial court then explicitly found “said issue in favor of [Mr. House],” and denied the relief requested by Ms. House. I believe the “said issue” upon which the trial court found in favor of Mr. House can refer only to his contention that he had fulfilled his obligations under the terms of the agreement allegedly modified by the parties after the entry of the divorce judgment. If so, then such a postjudgment modification would appear to violate the principles articulated in Holland and Price, supra.

Thus, I believe that Ms. House has alleged a valid ground for conflict under Rule 39(a)(1)(D), Ala. RApp. P., and that this Court should grant the petition to more closely examine Ms. House’s argu-merits and the record below. Accordingly, I dissent from the denial of her petition.

      . Smyth and Big Thicket Broadcasting, cited by the Court of Civil Appeals in support of its no-opinion affirmance, have nothing to do with divorce judgments or modifications of judgments, but pertain to contract principles regarding the validity or terms of an oral modification to a contract (in Smyth, a contract to lease property, with an option to purchase; in Big Thicket Broadcasting, a reciprocal trade agreement). As the Court of Civil Appeals noted in Price, "[a]n agreement that is merged into a judgment loses its contractual nature 705 So.2d at 489 (emphasis added). Thus, considering that the agreement in this case had "merged into a [divorce] judgment,” Smyth and Big Thicket Broadcasting are not particularly helpful.