author: PER CURIAM. PITTMAN, Judge,

text:
    Joe E. LANZI III v. ALABAMA DEPARTMENT OF REVENUE.
    2040298.
    Court of Civil Appeals of Alabama.
    June 30, 2006.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1051475.

      David M. Wooldridge, Anthony R. Smith, and Donald E. Johnson of Sirote & Permutt, P.C., Birmingham, for appellant.
    Troy King, atty. gen.; and Henry C. Chappell, chief counsel, Department of Revenue, and deputy atty. gen.; and David E. Avery III and Glenmore Powers II, asst, counsel and asst, attys. gen., Department of Revenue, for appellee.
    Bruce P. Ely and Matthew S. Houser of Bradley Arant Rose & White, LLP, Birmingham, for amicus curiae Alabama Society of Certified Public Accountants, in support of the appellant.
   PER CURIAM.

The facts underlying this appeal are as follows. Joe E. Lanzi III (“the taxpayer”) is a resident of Georgia and a limited partner of the Quad-L Limited Partnership (“Quad-L” or “the partnership”), an Alabama limited partnership. Quad-L was formed in 1996, at which time the taxpayer made an initial contribution to Quad-L in exchange for his partnership interest; the taxpayer holds a five-eighths ownership interest in the partnership. Quad-L’s other owners are the taxpayer’s parents and sister, each of whom lives in Alabama; among the partnership’s stated purposes are to “make a profit” and to manage and preserve “family assets.” Quad-L buys and sells stocks, bonds, and other securities, and it receives both dividend and interest income from the securities that it owns and gains from the sale of those securities. The taxpayer’s parents, who are Quad-L’s general partners and who reside in Birmingham, monitor and manage Quad-L’s investments with the help of financial consultants located in Montgomery. Quad-L’s assets are held primarily through an account with Charles Schwab & Co., which is headquartered in California and has offices throughout the United States (including in Alabama); Quad-L also owns a bond portfolio through a broker located in Boston, Massachusetts. Transactions involving Quad-L’s Schwab account are initiated either by the general partners or by Quad-L’s financial consultants in Montgomery through the use of Schwab’s toll-free telephone line.

The taxpayer, as a limited partner, does not participate in the management of Quad-L’s assets; he is. a mere passive investor in Quad-L. Further, it is undisputed that, apart from his interest in Quad-L, the taxpayer, during the tax years in question, owned no property, conducted no business, and had no economic ties to Alabama other than his limited-partnership interest in Quad-L.

During 1998 and 2000, the taxpayer received distributions from Quad-L that he reported as income on his Georgia income-tax return; however, he did not file an Alabama income-tax return reporting those amounts to the Alabama Department of Revenue (“the Department”) as taxable income. After an audit, the Department determined that the taxpayer owed Alabama income tax in the amount of $8,482 for the year 1998 and in the amount of $10,541 for the year 2000, and it entered a final assessment against the taxpayer in those amounts, plus interest and penalties. The taxpayer, pursuant to § 40-2A-7(b)(5)a., Ala.Code 1975, sought administrative review of the final assessment by appealing to the Department’s Administrative Law Division, and the cause was heard by an administrative law judge (“the ALJ”). The ALJ ruled in favor of the taxpayer, concluding in his order that Alabama’s imposition of an income tax on the taxpayer did not conform with the Due Process Clause and the Commerce Clause of the United States Constitution. The Department, pursuant to § 40-2A-9(g), appealed to the Montgomery Circuit Court from the ALJ’s order. That court, reviewing the ALJ’s order on a de novo basis (but on the record made at the hearing before the ALJ), entered a judgment in favor of the Department, concluding that the imposition of Alabama income tax on the taxpayer was constitutional. However, that court’s judgment reduced the amount of the assessment for each year to $6,143 and $8,348, respectively, in accordance with an agreement of the parties and waived the imposition of penalties. The taxpayer’s postjudgment motion was denied, and he appealed to this court.

At the outset, we note that the judgment under review is subject to no presumption of correctness.

“The circuit court reviews de novo an order of an administrative law judge in the State Department of Revenue; however, the order is presumed prima facie correct and the burden is on the appealing party to show otherwise.
“[An appellate court’s] standard of review is different from that applied by the circuit court in reviewing an administrative law judge’s order. When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, [an appellate court] sits in judgment of the evidence; there is no presumption of correctness. When [an appellate court] must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. In this case the [circuit] court based its decision upon the stipulations, briefs, writings, and arguments of the parties’ attorneys. No testimony was presented. Therefore, we must sit in judgment of the evidence, and the [circuit] court’s ruling carries no presumption of correctness.”

Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003) (citations omitted).

The taxpayer, in the administrative-review proceedings and in the circuit court, asserted that the assessment of income taxes against him with respect to the Quad-L distributions was invalid on three distinct grounds: (1) that is was inconsistent with the Due Process Clause and the Commerce Clause; (2) that is was inconsistent with the pertinent taxing statutes; and (3) that it was invalid because, the taxpayer alleged, it constituted an adoption by the Department of a new administrative “rule” without compliance with the notice provisions of the Alabama Administrative Procedure Act, Ala.Code 1975, § 41-22-1 et seq. (“the AAPA”). Only the first two issues are presented by the taxpayer on appeal.

Ala.Code 1975, § 40-18-1 et seq., governs the subject of income taxation. Under § 40-18-2(6), “[e]very nonresident individual receiving income from property owned or business transacted in Alabama” is subject to an annual tax on that individual’s “taxable income,” a term that means “gross income” minus any deductions allowed to individuals (see § 40-18-15.1). “Gross income,” in turn, is generally defined to include “gains, profits and income derived from ... dealings in property whether real or personal, growing out of ownership or use of or interest in such property” and “from interest, royalties, rents, dividends, securities, or transactions of any business carried on for gain or profit and the income derived from any source whatever” (§ 40-18-14(1)), although “gross income” in the case of nonresident individuals is limited to “income from property owned or business transacted in Alabama” (§ 40-18-14(4)).

Generally stated, for a state to lawfully impose a tax, both the Commerce Clause and the Due Process Clause of the United States Constitution (U.S. Const, art. I, § 8, cl. 3; id. amend. XIV, § 1) must be satisfied. As the United States Supreme Court noted in Quill Corp. v. North Dakota, 504 U.S. 298, 312, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992), although the Due Process Clause “concerns the fundamental fairness of governmental activity” and mandates inquiry into “whether an individual’s connections with a State are substantial enough to legitimate the State’s exercise of power over him,” Commerce Clause analysis is “informed ... by structural concerns about the effects of state regulation on the national economy.”

We first consider the propriety of the Department’s assessment with respect to the Due Process Clause. Under that clause, in order for a state to exercise jurisdiction over a nonresident taxpayer, that taxpayer must have sufficient “minimum contacts” with the taxing state. Quill Corp. v. North Dakota, supra. Although the physical presence of the taxpayer in the taxing state is not required under the Due Process Clause (504 U.S. at 306, 112 S.Ct. 1904), our Supreme Court has held that as a general rule the income that a taxpayer receives from intangible personal property is taxable in the taxpayer’s state of residence. Anniston Sportswear Corp. v. State, 275 Ala. 46, 151 So.2d 778 (1963). Two exceptions have been recognized to this general rule: (1) when the taxpayer establishes a “commercial domicile” in another state, and (2) when the intangible personal property acquires a “business situs” in another state. 275 Ala. at 50-51, 151 So.2d at 782.

Neither of the two exceptions to the general rule recognized in Anniston Sportswear apply to the facts of this case. First, the taxpayer has not established a commercial domicile in Alabama because he has no other contacts, commercial or otherwise, with Alabama other than his limited-partnership interest in Quad-L. Further, the taxpayer’s limited-partnership interest has not acquired a “business situs” in Alabama. See id. (intangibles for tax purposes may acquire a situs of their own in a state other than the legal domicile of the owner when they are used as an integral part of the owner’s business conducted in such other state); see also Ala. Admin. Code (Dept, of Revenue), r. 810-27-l-4-17(c) (defining “business situs” as the place where the intangible personal property is employed as capital or the place where the property is located if possession and control of the property is localized in connection with a trade or business so that substantial use or value attaches to the property).

A nonresident’s ownership of stock in a domestic corporation, without more, does not subject the nonresident shareholder to a state’s judicial jurisdiction. See Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) (violation of the Due Process Clause). A nonresident’s interest in a limited partnership is directly analogous to a nonresident’s ownership of stock in a corporation; thus, by analogy, a nonresident’s limited-partnership interest in a limited partnership domiciled within a state, without more, should not subject the nonresident limited partner to the state’s taxing jurisdiction.

We note that the dissenting opinion cites a number of cases from the courts of other states for the proposition that the physical presence and activities of Quad-L should be attributed to an out-of-state limited partner for jurisdictional purposes. In our opinion, however, a better line of reasoning is reflected in certain federal court decisions standing for the proposition that the mere ownership of a limited-partnership interest does not provide sufficient minimum contacts with the forum state for purposes of judicial jurisdiction. In Marriott PLP Corp. v. Tuschman, 904 F.Supp. 461 (D.Md.1995), the federal district court stated:

“Tusehman’s status as a limited partner in CHLP, even though the latter’s principal place of business is in Maryland, does not in and of itself confer personal jurisdiction over Tuschman in this Court. Shareholders in a corporation do not subject themselves to personal jurisdiction in the forum in which the corporation was formed. Shaffer v. Heitner, 433 U.S. 186, 216, 97 S.Ct. 2569, 2585, 53 L.Ed.2d 683 (1977). Similarly, forums in which a corporation does .business do not. automatically have personal jurisdiction over the corporation’s shareholders .... '
“The same rationale applies to limited partners who, like shareholders, are passive investors with limited liability. See Regency Hous. & Drilling Ltd. Partnership I v. Cohen, [C.A. No. 89C-DE-70] (Del.Super.Ct. Sept. 11, 1991) [ (not reported in A.2d) ] (‘Inasmuch as a limited partnership represents a security investment analogous to the purchase of stock in a corporation, plaintiffs contention ' [that defendant’s status as a limited partner satisfies the minimum contacts test] is prohibited by [Shaffer v. Heitner].’); see also Generate Bank, New York Branch v. Choudury, 776 F.Supp. 123 (S.D.N.Y.1991), rev’d on other grounds, 779 F.Supp. 303 (S.D.N.Y.1991) (granting nonresident limited partner’s motion to dismiss for lack of personal jurisdiction); Sender v. Powell, 902 P.2d 947 (Colo.App.1995) (holding that defendant merely held a passive interest in the partnership and that such contact was too insubstantial to provide the requisite contacts with Colorado to allow the constitutional exercise of long-arm jurisdiction over him); Renda v. Peoples Fed. Sav. & Loan Ass’n, 538 So.2d 860, 863 (Fla.Dist.Ct.App.1988) (holding that nonresident limited partners did not have the necessary minimum contacts to sustain personal jurisdiction in Florida although partnership’s purpose was to develop property in Florida).”

904 F.Supp. at 466; see also Construction Aggregates, Inc. v. Senior Commodity Co., 860 F.Supp. 1176, 1180 (E.D.Tex.1994) (it “strains reason to infer that anyone buying a limited partnership interest as a passive investment in a Texas limited partnership impliedly consents to or expects to be haled into court on any and all suits brought in Texas”). To like effect are Renda, supra, and Klein v. Mega Trading, Ltd., 416 So.2d 866 (Fla.Dist.Ct.App.1982).

Upon careful consideration of the issues presented in this case, we cannot conclude that, under the specific facts of this case, Alabama had jurisdiction to impose income tax on the taxpayer, whose only connection with Alabama was his limited-partnership interest in Quad-L. On the basis of the foregoing analysis and authorities, the circuit court’s judgment is reversed, and the cause is remanded for that court to enter a judgment in favor of the taxpayer.

REVERSED AND REMANDED.

THOMPSON and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

PITTMAN, J., dissents, with writing, which CRAWLEY, P.J., joins.

PITTMAN, Judge,

dissenting.

I disagree with the per curiam opinion’s conclusion that the circuit court’s judgment is due to be reversed on the basis that the imposition of Alabama income tax on the taxpayer in this case violates the Due Process Clause.

As the Alabama Supreme Court noted in Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002), in the context of a state’s exercise of judicial power over an individual, “ ‘[t]wo types of contacts can form a basis for personal jurisdiction’ ” under modern federal constitutional jurisprudence: “general contacts” and “specific contacts.” “Specific contacts,” in the judicial context, are “ ‘the defendant’s contacts with the forum state that are related to the cause of action’ ” that “ ‘must rise to such a level as to cause the defendant to anticipate being haled into court in the forum state’” in order for the Due Process Clause to be satisfied. Id. (quoting Ex parte Phase III Constr., Inc., 723 So.2d 1263, 1266 (Ala.1998) (Lyons, J., concurring in the result)).

Since International Harvester Co. v. Wisconsin Department of Taxation, 322 U.S. 435, 442, 64 S.Ct. 1060, 88 L.Ed. 1373 (1944), a case decided one year before International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and which is cited as authority in International Shoe itself, it has been settled that a state may, consistent with the Due Process Clause, tax income of nonresidents that “is fairly attributable either to property located in the state or to events or transactions which, occurring there, are subject to state regulation and which are within the protection of the state and entitled to the numerous other benefits which it confers.” Accord Moorman Mfg. Co. v. Bair, 437 U.S. 267, 273, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978) (due process is satisfied when some “minimal connection” between the taxpayer and the state exists and the income the state seeks to tax is “rationally related ‘to values connected with’ ” the state). In subjecting such income to taxation, a state may properly be said to be exercising “specific jurisdiction.” Indeed, an Illinois appellate court has gone so far as to conclude that International Harvester, which upheld application of Wisconsin’s income-tax statutes to dividends paid to nonresidents out of income derived from property and business activities in Wisconsin, amounted to “an example of ‘specific jurisdiction,’ ” ie., jurisdiction to tax based upon specific contacts with the pertinent state. Borden Chems. & Plastics, L.P. v. Zehnder, 312 Ill.App.3d 35, 42, 726 N.E.2d 73, 79, 244 Ill.Dec. 477, 483 (2000).

In Zehnder, a limited partnership that was based in Delaware was itself a limited partner, and owned a 98.99 percent interest, in a second limited partnership that operated in Illinois and earned income in 1988 and 1989 from distributions from the Illinois limited partnership. The Delaware limited partnership sought to avoid taxation upon that income by Illinois on constitutional grounds, asserting that the Due Process Clause and the Commerce Clause “prohibit[ed] Illinois in the first instance from assessing any replacement[] tax on a limited partner ..., which has no connection with the State of Illinois other than investing in a partnership.” 312 Ill.App.3d at 39, 726 N.E.2d at 77, 244 Ill.Dec. at 481. In rejecting the Delaware partnership’s Due Process Clause challenge, the Zehnder court held that the taxing authority’s assertion of jurisdiction to tax the Delaware partnership was “clearly related to and ar[ose] out of [the Delaware partnership’s] contacts with Illinois.” 312 Ill.App.3d at 42, 244 Ill.Dec. 477, 726 N.E.2d at 79. That court concluded:

“Under the facts of this case, and ■ in view of the ‘specific jurisdiction’ involved, we find inaccurate [the] description of [the Delaware partnership’s] connection to Illinois as a ‘passive investor.’ [The Delaware partnership’s] ‘passive investment’ generated or gave rise to the taxes at issue. Thus, [the Delaware partnership’s] connection to Illinois is not only its partnership interest in the entity that availed itself of the laws of Illinois, but also [the Delaware partnership’s] receipt of distributable income earned in Illinois, and Illinois’ assertion of jurisdiction over [the Delaware partnership] for the sole purpose of taxing this distributable income arises out of [those] contacts. Subjecting [the Delaware partnership] to the replacement tax does not violate the due process clause.”

Id.

To like effect is Weil v. Chu, 120 A.D.2d 781, 501 N.Y.S.2d 515 (1986), aff'd, 70 N.Y.2d 783, 521 N.Y.S.2d 223, 515 N.E.2d 908 (1987). In Weil, a New York appellate court considered a due-process challenge to the taxation of income generated by a law partnership’s operations in New York but distributed to partners practicing law in the District of Columbia. The appellate court soundly rejected that challenge, reasoning that there was a “sufficient nexus” between the District of Columbia partners’ income and New York “to validate the tax in question” in that the law partnership “maintain[ed] a considerable permanent practice in New York” even though the District of Columbia partners did not themselves practice there. 120 A.D.2d at 784, 501 N.Y.S.2d at 518.

I would also note that certain appellate opinions have, as against due-process challenges, upheld the imposition of state income taxes on nonresident shareholders of corporations organized under the auspices of Subchapter S of the United States Internal Revenue Code (26 U.S.C. § 1361 et seq.) when such shareholders receive income distributions from such “S corporations” operating in the taxing state. Two such opinions cited by the Department are Agley v. Tracy, 87 Ohio St.3d 265, 266-67, 719 N.E.2d 951, 953 (1999), and Kulick v. Department of Revenue, 290 Or. 507, 517-18, 624 P.2d 93, 98-99, appeal dismissed, 454 U.S. 803, 102 S.Ct. 76, 70 L.Ed.2d 73 (1981). Given that an S corporation, like a limited partnership, “is simply a conduit of income to shareholders” (Wolff v. Director of Revenue, 791 S.W.2d 390, 393 (Mo.1990)), I deem these additional opinions persuasive.

The taxpayer relies heavily upon the due-process analysis employed in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), in support of his contention that Alabama cannot tax Quad-L’s distributions to him. Although Shaffer applied the minimum-contacts formula of International Shoe to the issue of quasi-in-rem judicial jurisdiction based upon the presence of a defendant’s property in the pertinent state, that opinion is not inconsistent with the authorities I have cited. In Shaffer, the United States Supreme Court stated:

“[W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the- defendant, it would be unusual for the State where • the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest. The State’s strong interests in assuring the marketability of the property within its borders and in providing a procedure for peaceful resolution of disputes about the possession of that property would also support jurisdiction, as would the likelihood that important records and witnesses will be found in the State. The presence of property may also favor jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the defendant’s ownership of the property is conceded but the cause of action is otherwise related to rights and duties growing out of that ownership.”

433 U.S. at 207-08, 97 S.Ct. 2569 (emphasis added; footnotes omitted).

A leading taxation treatise notes that the foregoing analysis lends support to the analogous proposition that a state should have the authority to collect taxes from a nonresident shareholder on income derived from a corporation doing business in the particular state:

“The'shareholder’s rights in a corporation conducting business in a state ‘would normally indicate that he expected to benefit from the State’s protection of his interest.’ Moreover, the factors that the Court cited in support of the constitutionality of the tax in International Harvester are factors that would likewise support the state’s ‘specific jurisdiction’ to adjudicate a dispute over the nonresident shareholder’s tax liability.”

Jerome R. Hellerstein & Walter Heller-stein, State Taxation ¶ 6.04[l][a] (3d ed.2001 and Supp.2005) (footnote omitted). Likewise, a nonresident limited partner in a partnership that conducts business solely in Alabama would reasonably expect to benefit from- Alabama’s protection of his partnership interest • in litigation arising from disputes concerning the partnership that might reach the judicial system, and such a partner would similarly receive benefits from Alabama statutes and caselaw governing the operations of, and investments made by, the partnership. Given these specific contacts, as the circuit court aptly noted in its judgment, I believe that Alabama may constitutionally seek some recompense from the taxpayer under the circumstances presented:

“Here, Alabama seeks to tax value earned within its borders to which [the taxpayer] has purposefully acquired rights to. A person purposefully earning substantial Alabama source income through an Alabama entity knowingly assumes the risk that the State of Alabama will exercise some jurisdiction or power over that Alabama income. The cause of action here involved is the taxation of income earned within Alabama. Alabama has jurisdiction over this income and this income is directly related to [the taxpayer’s] purposeful connection within this state. The cause of action— taxation of income earned within Alabama — is thus sufficiently related to the earning of the income from an Alabama source to meet the due process requirements of the United States Constitution.”

Therefore, I respectfully dissent.

CRAWLEY, P.J., concurs.

      . The Alabama Society of Certified Public Accountants, appearing as an amicus curiae in support of the taxpayer, has attempted to separately raise the AAPA issue. However, because the taxpayer, who is the appellant in this court, has waived that issue by declining to argue it in his brief, we treat that issue as not before the court. See Anderson v. Smith, 274 Ala. 302, 304, 148 So.2d 243, 245 (1962) (because "[a]n amicus curiae is limited to the issues made by the parties to a suit,” an issue waived by aggrieved party "cannot be injected” by amicus into appellate proceedings); see also Courtaulds Fibers, Inc, v. Long, 779 So.2d 198, 202 n. 1 (Ala.2000).

      . Because our conclusion that Alabama income tax cannot be imposed on the taxpayer consistent with the Due Process Clause is dispositive of the appeal, we need not reach the taxpayer’s other arguments. We note that our holding is limited to the application of the tax statutes in effect'during the specific tax years at issue, i.e., 1998 arid 2000. Effective for tax years beginning in 2001 a nonresident partner may consent to personal jurisdiction in Alabama for the purposes of paying taxes on Alabama-source income or the partnership may pay the tax on behalf of the nonresident partners, see § 40-18-24.1(c), Ala.Code 1975; however, the applicability of that statutory provision is not before the court.

      .Having reached this question, the per cu-riam opinion implicitly indicates that the taxpayer’s appeal can properly be resolved only on constitutional grounds. See Lowe v. Fulford, 442 So.2d 29, 33 (Ala.1983) (a court has a duty to avoid constitutional questions unless essential to the proper disposition of the case).

      .By "modern” I mean since the United States Supreme Court decided International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), which first enunciated the "minimum contacts” standard of "fair play and substantial justice” in the due-process arena.

      . The Illinois “replacement tax” considered in Zehnder was “imposed on the privilege of earning or receiving income as a resident of Illinois or from Illinois sources” and was so named because it “was adopted to 'replace' the revenues lost as a result of the abolition of the [Illinois] personal property tax.” 312 Ill.App.3d at 37-38, 726 N.E.2d at 76, 244 Ill.Dec. at 480.

      . Because the main opinion properly concludes that it need not reach the constitutionality, under the Commerce Clause, of Alabama’s imposition of income taxation upon Quad-L’s distributions to the taxpayer in this case, I likewise do not address that issue.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Swannie Lee DAVENPORT v. STATE of Alabama.
    CR-04-1389.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.

      Christopher M. Sledge, Andalusia, for appellant.
    Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Swannie Lee Davenport, was indicted for murder and first-degree hindering prosecution. She was convicted of the lesser-included offense of manslaughter, a violation of § 13A-6-3(a), Ala. Code 1975, and first-degree hindering prosecution, a violation of § 13A-10-43, Ala.Code 1975. The trial court sentenced her to serve consecutive terms of twenty years in prison on the manslaughter conviction and ten years in prison on the first-degree hindering prosecution conviction. The appellant filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

The State presented evidence that the appellant was married to the victim, Lonnie Davenport; that Charlie Davenport was their son; and that, around 3:35 p.m. on July 8, 2001, law enforcement authorities received a call about an accidental shooting at the Davenport residence. Johnny Floyd, who was working part-time with the Red Level Police Department, testified that he responded to the call; that he arrived at the Davenport residence at 3:44 p.m. and saw the appellant and Charlie standing beside the house; that the appellant and Charlie were very calm, very collected, and not upset; that he got out of his vehicle, walked up to the house, and asked about the victim’s location; that the appellant and Charlie told him that the victim was in the house; that, when he asked about what had happened, the appellant said, “ ‘We were fighting and I shot him’ ”; that, when he went inside, he saw the victim on the living room floor; that the victim was not responsive; that he did not find a pulse; and that there was dried blood on the victim’s body. (R. 309.) -Michael Smith, a paramedic with the Andalusia Rescue Squad, testified that he arrived at the Davenport residence at' 3:49 p.m.; that the victim had a wound to his chest and was not breathing; that there was not any electrical activity in the victim’s heart, which indicated that the victim had been dead between thirty and forty-five minutes; and that the chest area of the victim’s body was very cool, his neck region was bluish in color, his pupils were dilated, and he had dried blood on his body. Forensic testimony indicated that the victim died from a gunshot wound to the chest and that it was possible that the victim could have survived up to one hour after he was shot.

On July 9, 2001, the appellant made two audiotaped statements to law enforcement officers. In the first statement, she told law enforcement officers that, when she got home from work on the afternoon of July 8, 2001, the victim was angry and yelling; that she and Charlie had been arguing with the victim; that the victim went to their bedroom, and she thought that he might be going to get a gun; that, as the victim came back from the bedroom, he yelled, “ ‘[Y]ou better shut up don’t I’ll, I’ll kill you’ ”; that she did not know to whom the victim was speaking; that she got a gun because she did not know what the victim might do; that, when the victim came back into the living room, she pointed the gun at him; that the victim grabbed the gun, and it went off; and that the victim fell to the floor. (C.R. 440.) In her second tape-recorded statement, the appellant said that, when she got home from work on the afternoon in question, Charlie met her outside and told her that he had shot the victim and that he and the victim had been arguing; that she and Charlie went inside, she made tea, they sat down, and they came up with a story about what had happened; and that, after they came up with a story, they telephoned 911.

The defense presented evidence that the victim was physically and verbally abusive toward the appellant and Charlie; that, on the' afternoon of July 8, 2001, the victim was angry; that the victim had been arguing with the appellant and Charlie; that the victim had said, “ ‘I’ll kill you’ ”; that the victim went to his bedroom and got a gun; that the victim threatened to hit Charlie with the gun; that, subsequently, the appellant got a gun and pointed it at the victim; that the victim grabbed the gun and pulled it toward him; that the appellant and the victim struggled over the gun; and that the appellant accidentally pulled the trigger, the gun went off, and the victim fell. (R. 839, 949, 976, 979.)

I.

The appellant argues that the trial court erroneously denied her motion to suppress her two audiotaped statements to law enforcement officers. Specifically, she contends that the trial court should have suppressed those statements because she made them after she had requested an attorney and before she had the opportunity to speak to an attorney. The testimony presented during the suppression hearing and at trial indicated that, when law enforcement officers first arrived at the Davenport residence on the afternoon of July 8, 2001, the appellant told Floyd that she and the victim had been fighting and that she had shot the victim. Subsequently, law enforcement officers allowed the appellant and Charlie to wait at a neighbor’s house while they were conducting their investigation; that, later that evening, Investigator Walter Inabinett of the Coving-ton County Sheriffs Department went to the neighbor’s house to talk to the appellant and Charlie; that both the appellant and Charlie invoked their right to counsel at that time; that Inabinett did not question the appellant and Charlie after they invoked their right to counsel; and that the appellant and Charlie were detained and taken to the county jail.

The State also presented evidence that the Covington County Sheriffs Department asked the Alabama Bureau of Investigation (“the ABI”) for assistance in the investigation; that Agents Barry Tucker and Jay Solomon of the ABI came to Covington County to assist in the investigation; that, on the evening of July 9, 2001, the appellant was taken to a multipurpose room in the county jail to be fingerprinted; that Tucker, Solomon, Ina-binett, and Chief Investigator Dennis Meeks of the Covington County Sheriffs Department were present at that time; that the officers did not try to have a conversation with the appellant at that time; that, after the appellant was fingerprinted, she looked at Tucker and asked about what was going to happen to her; that Tucker told her that, based on the evidence that they had at that time, she was going to be charged with murder; and that, at that time, the appellant said that she would tell them what had happened. Thereafter, the appellant made two audio-taped statements. The State presented evidence that, before the first statement, Solomon read a waiver of rights form to the appellant; that the appellant indicated that she understood her rights and signed the form; that no one applied violence to the appellant, made any promises to her, threatened her, told her it would be better for her to confess or make a statement, told her that it would be worse for her if she did not make a statement, or offered her anything to get her to make a statement; and that the appellant freely and voluntarily made the statement. Finally, the State presented evidence that the officers conducted a second interview with the appellant later that evening and that they reminded the appellant of her rights at the beginning of that interview.

“As we stated in Seawright v. State, 479 So.2d 1362, 1366 (Ala.Crim.App.1985):

“ ‘ “[A]n accused ... having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981) (emphasis added [in Seawright]). See also Payne v. State, 424 So.2d 722 (Ala.Crim.App.1982). As has been stated in this jurisdiction, “[a]ny person arrested who asserts his right to counsel may later change his mind and voluntarily submit to questioning.” Morrison v. State, 398 So.2d 730, 743 (Ala.Crim.App.1979), rev. on other grounds, 398 So.2d 751 (Ala.1981) (citations omitted; see also Sales v. State, 432 So.2d 560 (Ala.Crim.App.1983)).
“ ‘Most recently in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Court clarified the Edwards rule and held that the State must prove (1) that the defendant initiated the dialogue with authorities, id. at 1044, 103 S.Ct. at 2834, and (2) that the waiver of his right to counsel and to remain silent was knowingly and intelligently waived under the totality of the circumstances, id. at 1046, 103 S.Ct. at 2835.’
“ ‘[Although the appellant had asserted his right to counsel and questioning had ceased, the evidence indicates that the appellant’s statement was given voluntarily when he reinstigated discussion with the police officers. “Volunteered statements are not barred by Miranda. See Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694 (1966). ‘An unsolicited remark, not in response to any interrogation, does not fall within the Miranda rule.’ Crawford v. State, 479 So.2d 1349, 1352 (Ala.Cr.App.1985).” Jennings v. State, 588 So.2d 540, 543 (Ala.Cr.App.1991). See also Fisher v. State, 587 So.2d 1027, 1038 (Ala.Cr.App.1991), cert. denied, 587 So.2d 1039 (Ala. 1991), cert. denied, [503] U.S. [941], 112 S.Ct. 1486, 117 L.Ed.2d 628 (1992), citing Smith v. State, 515 So.2d 149, 152 (Ala.Cr.App.1987). See also Bass v. State, 585 So.2d 225, 237 (Ala.Cr.App.1991) (“[t]he evidence shows that the appellant’s statements following his arrest were spontaneous and voluntary”); Whittlesey v. State, 586 So.2d 31, 33 (Ala.Cr.App.1991) (“[t]he statement was spontaneous and unsolicited and, therefore, was admissible. See Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408 (1972)”).’
“Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993).”

Flowers v. State, 799 So.2d 966, 985-87 (Ala.Crim.App.1999).

The evidence presented in this case showed that the appellant was not questioned after she invoked her right to counsel and that law enforcement officers did not interview her again until after she initiated further conversation with them. Therefore, the trial court properly denied the appellant’s motion to suppress the two audiotaped statements she made to law enforcement officers.

II.

The appellant also argues that the trial court erroneously denied her motion to dismiss the indictment against her because it “failed to state a claim upon which relief may be granted under the laws of the State of Alabama.” (Appellant’s brief at p. 15.) Specifically, she contends that Count I does not state an offense because “[t]his Count charges [her] in part with murder for not seeking medical attention for [Lonnell Davenport] after he had been shot ” and because “the indictment fails to denote the legal duty enjoined by law on [her] part ... to ... protect the deceased from death or great bodily harm.” (Appellant’s brief at pp. 15-17.) Count I of the indictment alleged that the appellant

“did intentionally cause the death of Lonnell Davenport by shooting him with a pistol and/or by not seeking medical attention for him after he had been shot, in violation of Title 13A-6-2 of the Code of Alabama, and as last amended, against the peace and dignity of the State of Alabama.”

(C.R. 1.)

“A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person .... ”

§ 13A-6-2(a), Ala.Code 1975.

“ ‘An indictment which follows the language of a statute is sufficient to apprise the appellant of the charges against him, and to allow him to prepare a defense.’ Copeland v. State, 455 So.2d 951, 956 (Ala.Cr.App.), cert. denied, 455 So.2d 956 (Ala.1984) (citations omitted) (quoted in Garrison v. State, 521 So.2d 997, 1001 (Ala.Cr.App.1986)).”

McLemore v. State, 562 So.2d 639, 644 (Ala.Crim.App.1989).

The indictment against the appellant substantially followed the language of § 13A-6-2(a)(l), Ala.Code 1975. Further, although Count I of the indictment alleged that the appellant had committed the offense of murder by not seeking medical treatment for the victim, it also alleged, in the alternative, that the appellant had caused the death of the victim by shooting him. Therefore, even if the portion of the indictment alleging that the appellant committed the offense of murder by not seeking medical treatment for the victim was defective, the remaining language of Count I adequately set forth sufficient facts to state an offense. Accordingly, the trial court properly denied the appellant’s motion to dismiss Count I of the indictment.

Moreover, during its oral charge to the jury, the trial court did not instruct the jury that it could find the appellant guilty of murder on the basis that she did not seek medical treatment for the victim. Rather, it instructed the jury that it could find the appellant guilty of murder based on the theory that she shot the victim and based on a complicity theory. Therefore, the appellant’s argument is also moot.

III.

The appellant further argues that the trial court erroneously denied her motions for a judgment of acquittal at the close of the State’s case and at the close of all of the evidence because the evidence did not support a conviction for murder. However, she was not convicted of murder. Rather, she was convicted of the lesser included offense of manslaughter.

“ ‘Only the count upon which appellant was found guilty is subject to appellate review.’ DeFries v. State, 597 So.2d 742, 744 (Ala.Crim.App.1992) (quoting Hammond v. State, 354 So.2d 280, 284 (Ala.Crim.App.), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d 115 (1978)).”

Snell v. State, 677 So.2d 786, 791 (Ala.Crim.App.1995). Therefore, the appellant’s argument is moot.

For the above-stated reasons, we affirm the appellant’s manslaughter conviction.

With regard to the appellant’s conviction for hindering prosecution, Count II of the indictment alleged, in pertinent part, that the appellant

“did render criminal assistance to Charles Christopher Davenport a/k/a Charlie Davenport by intentionally hindering the apprehension, prosecution, conviction, or punishment of Charles Christopher Davenport a/k/a Charlie Davenport for conduct constituting a murder or Class A or Class B felony, to-wit: murder in that said [appellant] ... falsely advis[ed] law enforcement that she was responsible for the shooting of Lonnell Davenport, in violation of Title 13A-10-43 of the Code of Alabama, 1975, and as last amended, against the peace and dignity of the State of Alabama.”

(C.R. 1.) The appellant was convicted of both manslaughter for the death of the victim and first-degree hindering prosecution based on the statements, she made to law enforcement officers regarding the victim’s death. This court addressed a similar situation in Goodwin v. State, 644 So.2d 1269, 1272-1274 (Ala.Crim.App.1993),- as follows:

“The appellants, Daren Goodwin and Dewey Goodwin were convicted of robbery in the first degree, § 13A-8-41, Code of Alabama 1975; conspiracy to commit robbery in the first degree, § 13A-4-3; and hindering prosecution in the first degree, § 13A-10-43.... They appeal their convictions, raising several issues.
“The state’s evidence tends to show the following. Dewey, Daren and William Sellers went to David King’s house in Atlanta to speak to King about selling a stolen car in Alabama. King agreed to join them the next- day and asked if his cousin Xavier Murray could go with them. The next day, Dewey, Daren, and Sellers picked King and Murray up in Atlanta. King and Murray, both from Atlanta, were asked to join in the plan because Deroy Butler, the target of their scheme, did not know them. Butler knew Daren and Dewey. The group planned to sell or pawn the stolen car to Butler and then take it back. They decided that Murray and King would approach' Butler because in addition to not being known by Butler, they were juveniles.
“After arriving in Alabama, the group went to Butler’s store, which was closed. Sellers left the group at this time. The rest of the group went to the house of Patrick Goodwin. The five agreed that King and Murray would attempt to sell or to pawn the stolen car- to Butler. Any money obtained was to be split six ways. They also agreed that, if Butler refused to'buy or pawn the car, King and Murray were to tie Butler up, cut the telephone lines at his house, and take his money. Dewey and Daren gave King and Murray guns to take with them and showed them how to use them. Daren loaded and gave Murray a .32 caliber pistol. Dewey gave ■ King a .22 caliber pistol and explained that the gun was not working properly because it would take only one round at a time. Patrick, Dewey, and Daren left King and Murray near Butler’s house and waited nearby in their vehicle.
“King and Murray walked to Butler’s house and discovered thát he was not at home. They were about to leave when Butler drove up in his truck. They spoke to Butler about the possibility of pawning a car. When Butler asked them where the car was, they told him that the car had ran out of gas and was parked nearby. Butler told them that they had the wrong man and asked them to leave. Butler then entered his house. At this point, King’s testimony and Murray’s testimony differ. King testified that, after Butler told them that they had the wrong man they walked back to the waiting car and got the guns. Murray testified that they never left Butler’s property, but had the guns in their possession from the beginning.
“When Butler entered his house, he telephoned the sheriffs department and reported that something suspicious was going on at his residence. He was told that the only car the department had out that day was not nearby, but that someone would come to his house soon. Butler then called a neighbor and asked her to come over because he said he was worried about the two men in his yard. King and Murray were still waiting outside the house when the neighbor and her son-in-law arrived. The neighbors went into the house to check on Butler. King and Murray testified that Butler had a gun (possibly a 12-gauge shotgun) well within view of the front door and that they felt threatened by it. Butler himself testified that he had a shotgun and that it is possible that King and Murray saw him pick up the shotgun and place it behind the door.
“At this point, either King or Murray started to walk back behind the house. Butler yelled for him to come back, saying that the sheriff was on his way. Both men returned to the front of the house. At the time, Butler’s neighbor was talking on the telephone with someone in the sheriffs department. Butler was then staring at a gun pointed at him through the storm door. King shot Butler three times and ran. Murray turned and ran when King fired the shots. King testified that he had seen Butler pick up his gun and that he shot Butler so he could escape. Butler denied ever having pointed a gun at anyone. Butler was hospitalized two days as a result of the bullet wounds, and the bullets were not removed from his body.
“After Butler was shot, King and Murray ran down the road to find Dewey, Daren, and Patrick driving away. They hid in a cemetery while trying to decide what to do. The police later found the .22 caliber pistol in the cemetery and discovered that it was in fact defective in that it would take only one round at a time. They also found a mask and a cassette tape that were later determined to have had been left by King and Murray. King and Murray spent the night in a ‘hay stable.’ The next day- they stopped at a house and asked the resident which direction they should walk to get back on the highway to Atlanta. When they reached the highway, they began walking in the direction that they thought was taking them to Atlanta. A motorist who knew King stopped on the highway, told them they were walking in the wrong direction, and gave them a ride. They eventually went to Patrick’s house where they found Dewey, Daren, and Patrick. Dewey and Daren asked them if they had gotten any money. Murray and King wanted to return to Atlanta. Because the police would be looking for them and they thought roadblocks might have been set up', Murray and King suggested that they should ride in the trunk of the car. Daren and Dewey drove them to Atlanta. They rode in the trunk, but after, crossing the Georgia state fine, they rode in the back seat. Patrick stayed in Alabama.
“Shortly thereafter, King and Murray were arrested in Atlanta for their involvement in the shooting. While King and Murray were in jail, Dewey, who was also in jail at the time, attempted to have a letter delivered to them. Jail personnel intercepted the letter and it was entered into evidence at trial. The letter basically instructed King and Murray as to what they should say to the police. Dewey suggested in the letter that, if they would follow his instructions, they would all stay out of trouble. He asked the juveniles to tell the police that they had been in their own car on the day of the shooting and that they shot Butler in self-defense. Dewey also promised to get them a good attorney if he was released. Dewey requested that they burn the letter after they finished reading it.
“Dewey and Daren admitted at trial that they let King and Murray out of their automobile about one-half mile from Butler’s house, but they claimed that they did not know what King and Murray were going to do. They also admitted knowing that the guns were in their car but they denied giving them to King and Murray. Dewey and Daren testified that they drove King and Murray to Atlanta, and that King and Murray rode part of the way in the trunk of their car.
“Dewey and Daren contend that the state failed to present sufficient evidence to support their convictions for hindering prosecution. We agree. Dewey and Daren were convicted on an indictment charging that they ‘did, render criminal assistance to ... King ... and ... Murray ... by intentionally hindering the apprehension, prosecution, conviction or punishment of ... King and ... Murray ... for conduct constituting ... attempted Murder, in that [they] did, harbor or conceal [King and Murray] in violation of § 13A-10-43 of the Code of Alabama.’ The prosecution’s evidence shows that Dewey and Daren hid King and Murray in the trunk of their automobile on the trip back to Atlanta in order to avoid apprehension.
“Section 13A-10-43(a) defines hindering prosecution in the first degree as follows:
“ ‘A person commits the crime of hindering prosecution in the first degree if with the intent to hinder the apprehension, prosecution, conviction or punishment of another for conduct constituting a murder or a Class A or B felony, he renders criminal assistance to such person.’
“Section 13A-10~42(1) and (3) provides that ‘a person renders “criminal assistance” to another if he ... [h]arbors or conceals such person [or] [p]rovides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension.’ This statutory language was construed in Washington v. State, 562 So.2d 281 (Ala.Cr.App.1990), where the court was confronted with the question of whether the defendant could plead guilty to the offense of hindering prosecution in the first degree as a lesser included offense of first degree robbery charged in the indictment. In holding, in essence, that as a matter of law, the offense of hindering prosecution is not a lesser included offense of the offense upon which the underlying prosecution could be based (specifically, in Washington robbery) the court stated:
“ ‘ “The charge of hindering prosecution is inapplicable to a person charged as a principal.... ”
‘People v. Mercedes, 121 Misc.2d 419, 467 N.Y.S.2d 973, 974 (1983)....
“ ‘Neither the statutory definition of hindering prosecution in the first degree, § 13A-10-43, nor the statutory definition of criminal assistance, § 13A-10-42, “states that a person may render criminal assistance to himself. If the legislature had so intended, it could have inserted that provision in the statute. Instead the legislature used the words ‘person’ or ‘such person’ throughout those sections and did not refer to the underlying principal.” . Mercedes, 467 N.Y.S.2d at 974.
“ ‘ “Moreover, if a defendant could be convicted of hindering his own prosecution, almost any defendant could be accused of rendering criminal assistance to himself. Thus a principal could be accused of harboring himself, warning himself or doing any of the other acts proscribed by section [13A-10-43]. This is not a valid interpretation of the statute.”
‘Mercedes, 467 N.Y.S.2d at 975. See also Vickers v. State, 547 So.2d 1194 (Ala.Cr.App.1989) (Refusing to aid a police officer is not a lesser included offense of escape. “This section is intended to apply, not to perpetrators of the offense.... ”).
“ ‘The history of the offense of hindering prosecution in Alabama shows that the offense has been limited to persons other than principals.
“ ‘ “Under Alabama law the conduct described under § 13A-10-k2 and prohibited by §§ 13A-10-4.3 and 13A-10-44- would ordinarily make one an ‘accessory after the fact.’ Former §§ 13-9-1 and 13-9-2. Former § 13-9-1 provided that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, will be tried and punished as principals. Parsons v. State, 33 Ala.App. 309, 33 So.2d 164 (194[7]), established that participation in the crime may be proven by circumstantial evidence. Former § 13-9-2 dealt with accessories after the fact and provided any person, other than parent, child, brother, sister, husband or wife of the offender, who gives aid to the offender with the intent to enable him to avoid or escape from arrest, trial, conviction, or punishment in connection with a felony may be imprisoned in county jail up to six months and/or fined up to $1,000.00.”
“ ‘Commentary to §§ [13A-10-42] through 13A-10-[44] (emphasis added [in Washington]). “Although Section 13-9-1 has been repealed, there is — • for purposes of indictment and trial— still no distinction between principals and accessories under Alabama law.” Lewis v. State, 469 So.2d 1291, 1297 (Ala.Cr.App.1984), aff'd, 469 So.2d 1301 (Ala.1985).’

“562 So.2d at 282-83.

“In applying the above rationale to the instant facts, we conclude that the indictments of Dewey and Daren for the offense of hindering prosecution in the first degree was improper. While it is true that the indictment charged them with hindering the prosecution of King and Murray for the underlying offense of attempted murder, the attempted murder charge arose out of the same facts supporting the prosecution of Dewey and Daren for first degree robbery and for conspiracy to commit first degree robbery. To convict them of hindering the prosecution of King and Murray under these circumstances would, in essence, be convicting them of hindering their own prosecution, which is prohibited by Washington. Thus, this conviction must be reversed and the case remanded.”

In this case, the appellant was convicted of manslaughter for the death of the victim. Because the hindering prosecution charge arose from the same facts as those supporting the manslaughter conviction, she could not properly be convicted of both manslaughter and first-degree hindering prosecution. Therefore, the trial court did not have jurisdiction to enter judgments on both the manslaughter charge and the first-degree hindering prosecution charge. Accordingly, we remand this case to the trial court with instructions that that court set aside the appellant’s conviction and sentence for first-degree hindering prosecution. On remand, the trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 28 days after the release of this opinion.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      . Because Floyd was not available at the time of the appellant’s trial, his testimony from a previous proceeding was read into evidence.

      . The indictment also alleged that the appellant had committed the offense of first-degree hindering prosecution by not seeking medical attention for the victim after hé was shot. However, the trial court did not include that language in its oral,charge to the jury.

      . Based on our disposition of the appellant's hindering prosecution conviction, we preter-mit discussion of the appellant’s arguments concerning that conviction.

       Note from the reporter of decisions: On February 17, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 10, 2006, that court denied rehearing, without opinion.


author: KRATHEN, DAVID H., Associate Judge.

text:
    Samuel K. YOUNG, Appellant, v. The PALM BEACH COUNTY SCHOOL BOARD, Appellee.
    No. 4D05-4308.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Dec. 6, 2007.
    Thomas L. Johnson and Pamela Cazares of ' Chamblee,' Johnson & Haynes, P.A., Brandon, for appellant.
    Randall D. Burks, School Board of Palm Beach County, West Palm Beach, for ap-pellee.
   KRATHEN, DAVID H., Associate Judge.

In today’s decision, this court once again holds that teachers in this state can no longer be terminated for deficient professional performance in the classroom without the School Board first giving primary consideration to student achievement as measured by the Florida Comprehensive Assessment Tests or other local assessments where the FCAT is not available. See Sherrod v. Palm Beach Cty. Sch. Bd., 963 So.2d 251, 251-52 (Fla. 4th DCA 2006).

The Palm Beach County School Board discharged Appellant for failure to correct unsatisfactory performance. The Principal wrote a detailed description of problems observed in five areas of deficiency: management of student conduct, presentation of subject matter, learning environment, planning, and assessment. In rejecting the decision of the Administrative Law Judge, who found that there was a complete absence of consideration of student performance based on state or local assessment data, the Palm Beach County School Board misread the law when it relied upon the Classroom Teacher Assessment System (“CTAS”) approved by the Department of Education. The Administrative Law Judge found that there was no competent and substantial evidence within the mandates set forth by the Florida legislature in evaluating teacher performance. We hold that he was right.

Regardless of the good intentions of the School Board in relying on what it felt were suitable criteria to evaluate teacher performance, by depending on an assessment procedure not primarily based on student performance as measured by state FCAT tests or local assessments, the School Board failed to follow the applicable law. As we held in Sherrod:

Section 1012.34(3) plainly says that the student performance on annual tests must be the ‘primary basis’ for teacher evaluation. It does not say that these annual tests ‘may’ play a role.... But, the term primary in the statute unmistakably makes the student performance on annual tests the first consideration in any teacher evaluation.

Id. In section 1012.34(3), the Legislature has made a policy judgment, one we are not permitted to disregard.

We therefore hold that the School Board’s action is not supported by substantial, competent evidence. The dismissal of appellant is vacated.

Reversed.

GUNTHER and FARMER, JJ., concur.

      . The School Board relied upon the 2001-02 and 2002-03 version of CTAS approved by the DOE in 1999.

      . See § 120.57 Fla. Stat. (2005).


author: PER CURIAM.

text:
    SURVIVORS CHARTER SCHOOLS, INC., Appellant, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.
    Nos. 4D06-2378, 4D06-2379.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2007.
    Rehearing Denied Dec. 4, 2007.

      Bryan J. Yarnell of Watterson & Zappo-lo, P.A., Palm Beach Gardens, for appellant.
    Randall D. Burks, Ph.D. of the School Board of Palm Beach County, Office of Chief Counsel, West Palm Beach, for ap-pellee.
   PER CURIAM.

Survivors Charter Schools, Inc. (Survivors) appeals the termination of its charters for two schools, Survivors Charter School West Palm Beach (Survivors WPB) and Survivors Charter School Boynton Beach (Survivors BB). Survivors raises eleven points on appeal, most of which are directed at whether the Administrative Procedure Act of Florida Statutes chapter 120 applied to the charter termination process and related due process concerns. For the reasons that follow, we reverse.

In 2001, the School District of Palm Beach County entered into a ten-year Charter School Charter with Survivors for the operation of Survivors WPB. In 2003, the School District entered into a ten-year Charter School Charter with Survivors for the operation of Survivors BB.

The largely identical charters provided the following in General Provision I regarding the termination of the charters:

The District may terminate the Charter during the term of the Charter, for any of the grounds listed below:
1. A failure by the Charter School to meet the requirements for student performance stated in this Charter;
2. A failure by the Charter School to meet generally accepted standards of fiscal management;
3. A violation of law by the Charter School;
4. Other good cause shown.

The charters also set forth the procedures governing the termination of the charters in General Provisions J and K:

J. This Charter may be terminated immediately upon twenty-four (24) hours notice if the Sponsor determines that good cause has been shown or the health, safety, or welfare of the students is threatened or impaired. The Sponsor [the District] may assume the operation of the Charter School under these circumstances for a period of time as determined solely and exclusively by the sponsor.
K. The procedures for terminating this Charter are as follows:
1. At least ninety (90) calendar days prior to terminating this Charter, unless the Sponsor seeks immediate termination pursuant to Section J, the Sponsor shall notify the governing body of the Charter School of the proposed action in writing. The notice shall state in reasonable detail the grounds for the proposed action and stipulate that a request for an informal hearing before the Sponsor may be requested within fourteen (14) calendar days of receipt of the notice.
2. The Sponsor shall conduct an informal hearing within (30) calendar days after receiving a written request.
3. The Charter School’s governing body may, within fourteen (14) calendar days after receiving the Sponsor’s decision to terminate the Charter, appeal the decision to the State Board of Education pursuant to § 228.056(10)(c), F.S. This section K does not apply to this Charter being terminated pursuant to Section J of this Charter.

The Survivors BB charter does not contain the final clause of General Provision K regarding non-applicability of General Provision K if termination is pursuant to General Provision J, and the Survivors BB charter updates the statutory reference from section 228.056(10)(c) to section 1002.33(8). Furthermore, the charters do not indicate that the termination process is excluded from the Administrative Procedure Act.

On January 13, 2006, the School District completed an audit report for both Survivors WPB and Survivors BB. The audit report included fourteen findings of fiscal mismanagement. On January 18, 2006, the Palm Beach County School Board considered the audit report. On January 23,. 2006 (the parties do not dispute this date although it is not reflected on the document), the School Board published a Notice of Special Meeting listing a special meeting for January 25, 2006 from 5:00-6:00 p.m. regarding Disposition of Charter Schools/Alternative Education. On January 24, 2006, the School Board hand-delivered “Notification[s] of Superintendent’s Recommendation to Immediately Terminate Charter Agreement” to both Survivors WPB and Survivors BB. The notifications indicated that the recommendations for immediate termination based on good cause were “due to the severity of the Audit Findings” and that the recommendations would be considered at the noticed special meeting on January 25, 2006.

On January 25, 2006, the School Board held the noticed special meeting regarding the Survivors’ charters at which it heard public comments (including from some individuals affiliated with Survivors). At the special meeting, the School Board approved the termination of the Survivors WPB and Survivors BB charters. Following the special meeting, the School Board hand-delivered “Notification^] of Immediate Termination [of] Charter Agreement” to both Survivors WPB and Survivors BB. The notifications indicated that the terminations were based on section 1002.33(8)(d) and General Provision J of the charters and would become effective in twenty-four hours.

Survivors appealed the School Board’s decision to the Charter School Appeal Commission (CSAC), and an informal hearing (at which representatives of Survivors spoke and asserted due process concerns) was held before the CSAC. The CSAC declined to review evidence proffered by Survivors that was not before the School Board. Regarding Survivors BB, the CSAC voted that the School Board had competent, substantial evidence to support its finding regarding the severity of the audit report. The CSAC also voted that the School Board had good cause for the immediate termination of the Survivors BB charter. Finally, the CSAC voted to recommend denying Survivors’ appeal of the termination of the Survivors BB charter. Regarding Survivors WPB, the CSAC voted that the School Board had competent, substantial evidence to support its finding regarding the severity of the audit report. The CSAC then voted that the School Board did not have good cause for the immediate termination of the Survivors WPB charter. Finally, the CSAC voted to recommend granting Survivors’ appeal of the termination of the Survivors WPB charter. Following the hearing, the CSAC prepared written recommendations regarding both Survivors BB and Survivors WPB.

Survivors then appealed to the State Board of Education. The Board of Education reviewed the CSAC’s recommendations regarding the termination of the Survivors charters at a meeting (at which representatives of Survivors again spoke after submitting a brief raising due process concerns). The Board of Education voted to uphold the CSAC’s recommendation regarding Survivors BB. The Board of Education voted to overturn the CSAC’s recommendation regarding Survivors WPB. Following the meeting, the Board of Education entered final orders upholding the termination of both the Survivors BB and Survivors WPB charters.

Although Survivors raises eleven issues, this appeal involves two key questions. The first is whether the Administrative Procedure Act (APA) applied to the School Board’s charter termination process. The second is, if the APA did apply, what due process protections were required and whether they were provided by the School Board.

The first question to be answered in this appeal is whether the provisions of the APA apply to the charter school termination process set forth in Florida Statutes section 1002.33. The APA applies to agencies, including educational units, which include local school districts such as the School Board. § 120.52(l)(b)7., (6), Fla. Stat. The provisions of the APA apply “in all proceedings in which the substantial interests of a party are determined by an agency” (with some exceptions not relevant in this case). § 120.569(1), Fla. Stat. To establish that the substantial interests of a party will be determined by an agency “requires á showing that (1) the proposed action will result in injury-in-fact which is of sufficient immediacy to justify a hearing; and (2) the injury is of the type that the statute pursuant to which the agency has acted is designed to protect.” Fairbanks, Inc. v. State, Dept. of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994). Florida Statutes section 120.63 permits exemptions from the APA upon application of an agency under certain circumstances, but there is no indication that the School Board was so exempt (and the charters did not include an express APA exemption). Additionally, Florida Statutes section 120.81(1) provides APA exceptions for educational units, but none of these address the charter school termination process.

Under section 1002.33, a district school board may terminate a school charter for reasons specified in the statute under section 1002.33(8), and the charter school may appeal to the Charter School Appeal Commission (CSAC) and then the State Board of Education based on the procedures set forth in section 1002.33(6). As part of the procedures set forth in section 1002.33(6), the statute expressly exempts the State Board of Education from the provisions of the APA in section 1002.33(6)(c) and the statute expressly exempts the CSAC from the provisions of the APA in section 1002.33(6)(f)2. Conspicuously absent in section 1002.33 is any provision exempting the School Board’s termination decision from the provisions of the APA.

Based on our reading of chapter 120 and section 1002.33, we conclude that the process leading to the School Board’s termination decision was subject to the APA. Under section 120.52, the School Board is an agency to which the APA generally applies. Under section 120.569, the School Board’s decision is one to which the APA applies. This is because the charter school termination proceedings determine a substantial interest of Survivors, as it would suffer injury-in-fact on an immediate basis by the immediate termination of the charters and the injury resulting from the termination of the charters is of a type intended to be protected by section 1002.33 where it specifically addresses the charter termination process. Furthermore, the School Board charter termination process is not expressly exempted from the APA under section 120.63, subject to an APA exception under section 120.81, or otherwise exempted by the charters in question. Additionally, section 1002.33 does not indicate that the School Board’s termination decision is exempt from the provisions of the APA, despite expressly exempting the CSAC and Board of Education termination appeal decisions. Therefore, the School Board was required to provide the due process protections inherent in the APA to Survivors during the process leading to the determination of good cause resulting in the notifications of immediate termination of the charter schools.

Now we must answer the second question central to this appeal, concerning what APA protections were required and whether the School Board provided those protections. The APA includes defined procedures for providing due process regarding decisions which determine substantial interests. Under section 120.569(2)(b), “[a]ll parties shall be afforded an opportunity for a hearing after reasonable notice of not less than 14 days,” unless waived by consent of all parties. However, to receive such a hearing, a party is required to file a petition or request for a hearing. § 120.569(2)(a), (c), Fla. Stat. If a hearing is requested and the petition is granted, a hearing will be held and the “presiding officer has the power to swear witnesses and take their testimony under oath, to issue subpoenas, and to effect discovery.” § 120.569(2)(f), Fla. Stat. Additionally, “[ijrrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.” § 120.569(2)(g), Fla. Stat. This evidence may be received in written form and testimony must be under oath. Id. Cross-examination is also permitted. § 120.569(2)(j), Fla. Stat. Additional procedures apply in cases involving disputed issues of material fact. § 120.57(1), Fla. Stat.

Other provisions of the APA apply more generally to agency action outside the realm of decisionmaking that determines substantial interests. Under section 120.525, an agency is required to “give notice of public meetings, hearings, and workshops by publication in the Florida Administrative Weekly not less than 7 days before the event” and include a “statement of the general subject matter to be considered,” unless the meeting is held on an emergency basis. Agendas for meetings are also required to be prepared seven days in advance. § 120.525(2). Agencies may hold meetings on an emergency basis if there is “an immediate danger to the public health, safety, or welfare” which requires ' immediate action. § 120.525(3), Fla. Stat. Under these circumstances, the agency may “give notice of such a meeting by a procedure that is fair under the circumstances and necessary to protect the public interest,” if that procedure provides “at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution,” “the agency takes only that action necessary to protect the public interest,” and “the agency publishes in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure is fair under the circumstances.” § 120.525(3), Fla. Stat.

Also applicable in this case are statutes that address school board procedures in general and the charter school termination process in particular. Some of these statutes are found in Florida Statutes chapter 1001 addressing K-20 Governance. Florida Statutes section 1001.372 addresses district school board meetings. Under section 1001.372(1), the school board may convene for special meetings as called by the superintendent, upon request by the chair of the school board, or upon request of the majority of the school board. Section 1001.372(2)(c) provides for due public notice of school board meetings which consists of “publication in a newspaper of general circulation in the county or in each county where there is no newspaper of general circulation in the county and announcement over at least one radio station whose signal is generally received in the county, a reasonable number of times daily during the 48 hours immediately preceding the date of such meeting, or by posting notice at the courthouse door if no newspaper is published in the county, at least 2 days prior to the meeting.” The APA, in section 120.81(1)© provides an APA exception for the agendas of school board meetings, which “shall be prepared upon the calling of the meeting, but not less than 48 hours prior to the meeting.”

The rest of the relevant statutes are found in section 1002.33. Section 1002.33(8)(a) addresses termination of school charters and allows for termination on the same bases included in the Survivors charters, including “other good cause shown.” Section 1002.33(8)(d), like the Survivors charters, allows for immediate termination based on good cause shown or a threat to the health, safety, or welfare of students. The statute does not discuss any requirements or timelines for notice or hearings in cases of immediate charter termination. However, the charters themselves require twenty-four hours’ notice prior to immediate termination. Additionally, the charters expressly exclude immediate terminations from the procedures governing terminations in general as set forth in section 1002.33(8)(b) and the charters. These general provisions include ninety days’ notice and informal hearings upon request prior to termination.

The second question central to this appeal can be resolved by analyzing the interaction between chapters 120, 1001, and 1002. Chapters 120 and 1001 are easily reconcilable. Although section 120.525 requires seven days’ notice of agency meetings and the preparation of the meeting agenda at the same time, section 120.81(l)(j) clearly provides an APA exception for school board meetings indicating that the agenda must be prepared upon the calling of the meeting which may not be less than 48 hours prior to the meeting. As such, school boards are excepted from the notice and agenda requirements for meetings under the APA. This is reflected in section 1001.372(2)(c) which allows notice of school board meetings by publication forty-eight hours in advance in a newspaper and preparation of the agenda at the same time. As such, school board meetings are excepted from the notice and agenda requirements of the APA. However, although the School Board may have properly noticed its special meeting under these provisions, an agency meeting is clearly separate in the APA from a hearing necessitated by an agency determining the substantial interests of a party, as the latter is found in section 120.569 while the former is found in section 120.81.

The relationship between chapters 120 and 1002 is much more complex. Much of the complexity stems from the seeming clash between the immediate termination provisions of section 1002.33(8)(d) and the notice and hearing requirements of section’ 120.569(2)(b). If indeed as we concluded above, school board decisions terminating charters are subject to the APA, how can immediate termination, as described in the charters to require only twenty-four hours’ notice, possibly be cognizable under the APA procedures requiring fourteen days’ notice of a hearing regarding a determination of substantial interests? The answer to this question lies in the fact that immediate termination is cognizable under the charters with twenty-four hours notice only after the • School Board has determined that good cause for termination has been shown following fourteen days notice and a hearing. As such, the School Board’s process for determining whether good cause has been shown is subject to APA requirements. If these requirements are met, a charter can be terminated with just twenty-four hours notice, rather than subject to the full ninety-day procedure for termination.

.[4] We reach this conclusion based on the fact that section 1002.33(8)(d) does not provide a timeline for notice and hearing, other than by excluding itself from the general procedure for terminating charters which requires ninety days’ notice. Under the statute, immediate means only something less than ninety days, which clearly encompasses the fourteen-day notice requirement of section 120.569(2)(b) as applied to the School Board’s determination of good cause for termination (plus twenty-four hours’ notice of termination once good cause is shown based on the charters). The APA does not provide for an abbreviated procedure in cases of emergency where substantial interests are to be determined by an agency; the only emergency procedure is set forth in the section governing agency meetings in general. As such, it seems that if substantial interests are affected and the APA applies, as we have determined, immediate termination can only mean termination following a determination of good cause subject to the fourteen-day notice requirement and accompanying APA procedures (especially where such a requirement allows for more immediate termination than the general termination procedure). As much as the audit report findings may have reflected serious financial transgressions, termination following .a determination of good cause can only be so immediate as to afford due process, and due process can only be afforded with fourteen days’ notice and a hearing under the APA.

In the case at bar, it is clear that the notice and procedures provided for by the APA were not observed in Survivors’ case, as its charters were terminated at a school board meeting that was not conducted like a hearing determining substantial interests which would involve the submission of evidence and cross-examination. The School Board may have very well complied with the requirements for calling a special meeting of the school board, but it did not follow the requirements for conducting a hearing to determine whether good cause had been shown to terminate Survivors’ charters. As such, we reverse and remand this case so that the termination of Survivors’ charters based on a determination of good cause shown can be considered following proper notice and subject to the due process protections of the APA. ‘ We decline to comment on the more specific due process and evidentiary issues raised by Survivors (those issues other than issues two, three, and six which we reverse) as we anticipate that they' will be addressed as part of the proper overall procedure under the APA on remand.

Reversed and Remanded.

GUNTHER, FARMER, JJ., and HOROWITZ, ALFRED J., Associate Judge, concur.


text:
    Thierry Albert THENET, Appellant, v. Ken JENNE, Sheriff of Broward County, and Broward Sheriff's Office, Appellees.
    No. 4D06-4916.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2007.
    Rehearing Denied Dec. 6, 2007.
    Robert C. Gindel, Jr. of Robert C. Gin-del, Jr., P.A., West Palm Beach, for appellant.
    Carmen Rodriguez of Law Offices of Carmen Rodriguez, P.A., Miami, for appel-lees.
   PER CURIAM.

After the sheriff terminated Thierry Thenet, a career deputy with the Broward Sheriffs Office, Thenet filed a request for an arbitration panel under the applicable collective bargaining agreement. Later, Thenet filed suit in the circuit court to compel arbitration. The circuit court granted the sheriffs motion to dismiss, holding that Thenet’s request was untimely-

We reverse because the issue of timeliness was a question for an arbitrator. See Alderman v. City of Jacksonville, Fire & Rescue Div., 902 So.2d 885, 887 (Fla. 1st DCA 2005) (“[QJuestions of timeliness are to be decided by an arbitrator, not a trial court. This is true even if the time requirement for arbitration is labeled a condition precedent”); Pembroke Indus. Park P’ship v. Jazayri Constr., Inc., 682 So.2d 226, 227 (Fla. 3d DCA 1996) (“[T]he issue of whether the demand for arbitration was timely is a question of fact for the arbitrator to decide, not the trial court.”); CED Constr., Inc. v. Kaiser-Taulbee Assocs., 816 So.2d 813 (Fla. 5th DCA 2002) (“The issue of whether the demand for arbitration was timely is a question of fact to be decided by arbitration, not the trial court.”); see also O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 188 (Fla.2006) (holding that a statute of limitations defense was to be decided by the arbitrator).

STONE, POLEN and GROSS, JJ., concur.


author: SHAHOOD, C.J.

text:
    Bret BERLIN, as Personal Representative of the Estate of Jerome C. Berlin, Appellant, v. Arlene PECORA, Signature Grand Ltd., a Florida limited partnership; Grand Partners, Inc., a Florida corporation, and as general partner of Signature Grand Ltd., a Florida limited partnership; Signature Gardens Ltd., a Florida limited partnership; Deux Michel, Inc., a Florida corporation, and as general partner of Signature Gardens Ltd., a Florida limited partnership, Appellees.
    Nos. 4D06-183, 4D06-3194.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Dec. 3, 2007.

      Barbara J. Compiani and Jane Kreus-ler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Edward R. Curtis of Tripp, Scott, P.A., Fort Lauderdale, for appellant.
    Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., and Michael W. Moskowitz of Moskowitz, Mandell, Salim & Simowitz, P.A., Fort Lauderdale, for appellee Arlene Pécora.
   SHAHOOD, C.J.

Bret Berlin, as personal representative of the Estate of Jerome Berlin (Berlin), appeals the final declaratory judgment in a partnership dispute which found that Michael Pécora (Michael) and his wife, Arlene Pécora (Arlene) held the limited partnership interest in Signature Grand, Ltd. and the stock of Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. We affirm.

In 1982, Michael formed a limited partnership with Berlin called Signature Gardens, Ltd. The general partner of this limited partnership is a corporation, Deux Michel, Inc. The stock in Deux Michel, Inc. was issued equally to Michael, Berlin, and Michael Selig (Selig). Selig was bought out by Deux Michel, Inc. in 1989.

In 1993, Michael and Berlin formed the limited partnership Signature Grand, Ltd. The general partner of this limited partnership is the corporation Grand Partners, Inc. The Grand Partners, Inc. stock was issued equally to Michael and Berlin.

Arlene worked as director of sales for the limited partnerships, Signature Gardens, Ltd. and Signature Grand, Ltd. for one year before each facility opened in approximately 1984 and 1995, respectively. She did not work for either entity again until November 2001.

On April 28, 2003, Berlin fired Arlene and the next day Michael shot and killed Berlin and then shot and killed himself.

Michael left a suicide letter for Arlene and a letter directed to the comptrollers of Signature Gardens, Ltd. and Signature Grand, Ltd., appointing Arlene to act in his absence as president and CEO of Grand Partners, Inc. and Deux Michel, Inc.

Arlene filed a complaint alleging that she and Michael had jointly owned the corporate stock and limited partnership interests as tenants by the entireties and therefore those interests immediately passed to her as the surviving spouse upon Michael’s death.

At a non-jury trial Arlene maintained that she and her husband had an understanding that they would hold bank accounts, stock and real estate jointly as tenants by the entireties. She testified that their ownership interests in Signature Gardens, Ltd., Deux Michel, Inc., and Grand Partners, Inc. were purchased through their joint bank accounts.

Other witnesses testified to conversations they had with Berlin and Michael in which Arlene was identified as a limited partner or joint tenant in the businesses.

At the end of the trial, the trial court judge orally ruled that Arlene and Michael had owned the limited partnership interest in Signature Grand, Ltd. and the stock in the corporations, Deux Michel, Inc. and Grand Partners, Inc. as tenants by the entireties. The court later entered a Final Declaratory Judgment in favor of Arlene and granted Arlene’s motion to tax costs.

On appeal, Berlin argues that the trial court erred because it overlooked the corporate documents. Berlin cites to several documents as evidence that both corporations established stock ownership in Michael alone. These documents include the minutes of Deux Michel, Inc. showing that Michael owned 200 shares; a February 1984 resolution and stock certificate showing an additional hundred shares issued to Michael, individually; July 1993 minutes of Grand Partners, Inc. reflecting Michael owning 200 shares in the company; and K-l tax schedules for Deux Michel, Inc. and Grand Partners, Inc. showing Michael as the shareholder.

“[CJorporate records provide a prima facie evidentiary basis for determining ownership of corporate stock.” Sackett v. Shahid, 722 So.2d 273, 275 (Fla. 1st DCA 1998). However,

[I]t is within the trial judge’s province, when acting as trier of both fact and law, to determine the weight of the evidence, evaluate conflicting evidence, and determine the credibility of the witnesses, and such determinations may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence, op to constitute an abuse of discretion.

Jockey Club, Inc. v. Stern, 408 So.2d 854, 855 (Fla. 3d DCA 1982).

The above mentioned documents provide evidence that Michael was the only recognized name mentioned with stock ownership in the companies. Nevertheless, ■these documents are contradicted with testimony at trial that the stock was held jointly; evidence and testimony that Michael and Arlene made purchases through ⅛ joint account; and other documents admitted at trial indicating joint ownership, thereby providing competent and substantial evidence for the trial court’s ruling.

One additional document cited by Berlin is a 1997 Guarantor Affidavit and Spousal Disclaimer. This document was made to provide security for a loan from BankAtlantic to Signature Grand, Ltd. In the .document, Michael listed his stock interests in Grand Partners, Inc. and Deux Michel, Inc. and his partnership interests in Signature Grand Ltd. and Signature Gardens, Ltd. Arlene acknowledged in the affidavit that the assets were owned solely by Michael and disclaimed any interest in the assets.

The premise behind the affidavit comes into doubt in light of the testimony by Susan Imbrigiotta, the Vice President of Commercial Real Estate Lending for Ban-kAtlantic. She testified that she was the original loan officer for the 1997 loan transaction with Signature Grand, Ltd. She explained that this loan transaction required a Guarantor Affidavit and Spousal Disclaimer, which is used when the guarantor signing on the loan is married and his or her spouse is not personally signing on the loan; both spouses then must sign the Affidavit. She admitted that the relevant part of the financial affidavit attached to the Affidavit in BankAt-lantic’s file was that of Berlin, not Michael. Therefore, Arlene disclaimed only Berlin’s interests in Grand Partners, Inc., Signature Grand, Ltd., Deux Michel, Inc., and Signature Gardens, Ltd.

Based on the above, there was competent substantial evidence to find the affidavit was not intended to divest Arlene of her ownership interests in the companies.

Berlin also argues that Arlene failed to prove any of the elements necessary to establish a tenancy by the entirety. Arlene argues that her entireties interest arose as a result of her investments in the corporate assets from her joint bank account with Michael.

Under a tenancy by the entirety, “[u]pon the death of one spouse, the surviving spouse continues to be seized of the whole. Thus ... after death of one spouse the surviving spouse continues to hold the entire estate.... ” Cacciatore v. Fisherman’s Wharf Realty Ltd. P’ship, 821 So.2d 1251, 1254 (Fla. 4th DCA 2002). Property held as a tenancy by the entireties possesses six characteristics:

(1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Beal Bank, SSB v. Almand & Assocs., 780 So.2d 45, 52 (Fla.2001) (footnote omitted).

Arlene’s main argument and the one that the trial court agreed with, is that the tenancy by entirety was created through the use of a joint account to buy the interests. Bank accounts are afforded the same presumption of tenancy by the entireties as is real property. Beal Bank, 780 So.2d at 58. Property purchased with joint funds may create a tenancy by the entirety in that property so long as the unities are met. For example, in Winterton v. Kaufmann, 504 So.2d 439 (Fla. 3d DCA 1987), the court found that after the husband died, the wife owned bonds that were purchased with joint funds and kept in a joint safe deposit box. See also Estate of Fields v. Fields, 581 So.2d 1387, 1388 (Fla. 3d DCA 1991) (“The bearer bonds, purchased with joint funds and maintained in the couple’s joint safe deposit box, passed to the wife upon the husband’s death. The bearer bonds were held by the spouses as tenants by the entirety; ownership vested in the wife as the survivor.”). Once tenancy by the entirety property is established, its subsequent transfer to another asset does not terminate the unities of title or possession. See Passalino v. Protective Group Sec., Inc., 886 So.2d 295, 297 (Fla. 4th DCA 2004) (“Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession.... ”); Lerner v. Lerner, 113 So.2d 212 (Fla. 2d DCA 1959).

Here, the six characteristics needed to prove the tenancy by the entirety are largely based upon the assumption that joint funds were used in the inception of the companies, even though the proof of the use of joint funds is illustrated only by checks dated after the inception of the companies and witness testimony.

“[UJnless a tenancy by the entire-ties is clearly expressed in the instrument, the parties must prove they intended to create a tenancy by the entireties.” Hurlbert v. Shackleton, 560 So.2d 1276, 1279 (Fla. 1st DCA 1990); Morse v. Kohl, Metzger, Spotts, P.A., 725 So.2d 436, 438 (Fla. 4th DCA 1999). The trial court heard testimony from witnesses as well as the admission of several documents in which it found that the intention was to create a tenancy by the entirety. This is a factual question which the court ultimately determined by competent substantial evidence in favor of Arlene. See Sitomer v. Orlan, 660 So.2d 1111, 1115 (Fla. 4th DCA 1995) (“Whether the parties created a tenancy by the entireties in a bank account-whether they were each taking the whole of the account-is a question of fact.”).

Because substantial competent evidence supported the trial court’s finding that Arlene and Michael held their ownership interests as tenants by the entireties, this court cannot reverse that finding. The trial court also properly granted Arlene’s motion to tax costs.

Affirmed.

STEVENSON, J., and BELANGER, ROBERT E., Associate Judge, concur.


text:
    Roger Dale LIVINGSTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4533.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.
    Rehearing Denied Nov. 20, 2007.
    Roger Dale Livingston, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Dan SCHMIDT, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-3696.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2007.
    Rehearing Denied Nov. 20, 2007.
    Dan Schmidt, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Cf. Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

BARFIELD, DAVIS, and LEWIS, JJ., concur.


text:
    Christian ROMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2241.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2007.
    Rehearing Denied Dec. 3, 2007.

      Christian Roman, Immokalee, pro se.
    No appearance required for appellee.
   PER CURIAM.

The defendant appeals an order dismissing his rule 3.800(a) motion as successive. He makes three arguments, all of which we reject. We affirm.

The defendant filed a rule 3.800(a) motion suggesting that he did not qualify for habitual offender sentencing because the predicate offenses in case number 96-24844 occurred during the same criminal episode for which he was sentenced on August 26, 1996, and did not qualify as separate sentences. However, the defendant also had other prior felony convictions.

The defendant was sentenced in case number 96-18620 on October 17, 1997 for qualifying offenses and again on October 20, 1997 for yet another qualifying offense in case number 97-19198. The defendant argued that the offenses in those case numbers did not qualify him for habitual offender sentencing because adjudication was withheld and he was placed on community control.

Without ordering a response from the state, the trial court dismissed the motion as successive explaining that this claim was raised in the defendant’s prior rule 3.800(a) motion that was denied. The defendant filed a motion for rehearing, which the trial court denied.

In this appeal, he continues to argue that the trial court erred in sentencing him as a habitual offender because the offenses in case number 96-24844 were sentenced at the same time and that his convictions in the other cases cannot qualify as predicate offenses because he was placed on community control. The defendant is mistaken. First, the sentencing transcript reveals that the State relied on all of the defendant’s prior convictions, not just the August 26, 1996, conviction to support the request for habitual offender sentencing.

Second, the defendant is simply incorrect when he suggests that his sentences of community control do not satisfy the predicate convictions for habitual offender sentencing. Community control qualifies as a “sentence” for purposes of the habitual offender statute. See State v. Richardson, 915 So.2d 86 (Fla.2005) (holding that probation is a qualifying sentence under the habitual offender statute). Because the defendant’s arguments are without merit, we affirm.

Affirmed.

WARNER, HAZOURI and MAY, JJ., concur.

      . The defendant also argues that his motion was not successive and that the trial court erred in failing to attach record excerpts to support its finding of successiveness.