text:
    Charles Lee PERRY v. STATE of Mississippi.
    No. 53816.
    Supreme Court of Mississippi.
    Sept. 8, 1982.

      Mager A. Varnado, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, HAWKINS and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

Charles Lee Perry was convicted for the crime of embezzlement and sentenced as an habitual offender to serve ten years in the state penitentiary by the First Judicial District of the Circuit Court of Harrison County. His appeal is based on an alleged denial of the rights to a speedy trial and assistance of counsel. We reverse.

I.

As a fifteen-year old in 1968, Perry was certified from the youth court to circuit court and pled guilty to charges of burglary and larceny. This resulted in the Harrison County Circuit Court sentencing him to one year in the state penitentiary. Subsequently, in 1975, he again pled guilty to similar charges from the same county and was sentenced to a five year term in the penitentiary. He was released on parole from the latter sentence in October of 1978.

On June 9,1979, a 1975 Chevrolet Caprice automobile was stolen from a Harrison County citizen named Mack West. The car was eventually-traced to Jackson, Mississippi, where it was located at the scene of a hit-and-run accident. Witnesses of the accident identified Charles Perry as the driver of the car. Perry was eventually apprehended by the Jackson police on July 25, 1979. The reason for the arrest was not clear in the record since Perry was wanted for parole violations, for the Harrison County charge, and for the “hit-and-run” accident. When notified of the arrest, Officer John McAdams of the Harrison County Sheriff’s Department advised the Jackson police that authorities in Cleveland should have Perry first since he was a current suspect for burglary charges there which predated the automobile theft in Harrison County. Instead, Perry was first returned to Parchman after revocation of parole to serve out his prior sentence.

Meanwhile, the Harrison County felony charge against Perry was given to the district attorney’s office of Harrison County on October 10, 1979, and was presented to the grand jury during that term, but no indictment was returned. However, on November 27,1979, a detainer on the Harrison County charges was lodged at the Mississippi State Penitentiary by the Sheriff of Harrison County. No indictment was returned at the March 1980 session of the grand jury either but finally at the May 1980 session an indictment for grand larceny against Charles Lee Perry was returned. Nevertheless, Perry was never arraigned on this grand larceny indictment.

On July 31, 1980, Perry allegedly learned of the Harrison County detainer for the first time. Soon thereafter, he mailed a document styled “Demand to be returned for Trial/Motion to Dismiss/Demand for Trial/Motion for Appointment of Counsel” to the Sheriff of Harrison County. The document was prepared by the prison law library staff, and it contained a brief statement of the adverse conditions imposed on prisoners by detainers. The document stated in pertinent part:

EFFECTS OF DETAINER: The detain-er interferes with Affiant’s opportunities to participate in such programs as might decrease the length of his present term of confinement, or render the serving of it more bearable in that
(a) Mississippi Department of corrections inmates who have detainers lodged against them have reduced chances of being elevated to trusty status, and thus may lose opportunities to earn additional good-time or earned-time sentence reductions;
(b) Such inmates may not participate in the work-release program;
Furthermore, if affiant is held without trial on said detainer until his current sentence is completed, he will lose forever the chance that a sentence arising out of the detainer charge can be made to run concurrently with his present sentence.
The detainer, being unresolved, is a source of great anxiety to your affiant, causing him unrest and inability to plan for his future.

The above document was never filed with the circuit court at any time by the sheriff, nor was it acted upon. On December 23, 1980, the circuit judge ordered the Harrison County Sheriff to have Perry returned from Parchman for his trial date which was set on March 17, 1981.

Perry’s sentence at the state penitentiary on his prior charges was completed on February 9, 1981, when he was processed for discharge. However, he was not discharged because of the Harrison County detainer and was held until the next day when Harrison County officials transported him from Parchman to Harrison County. On February 22, 1981, Perry filed a petition for appointment of an attorney, which was granted on February 24,1981. Perry’s appointed counsel first filed a habeas corpus petition reciting that Perry had not been indicted nor arraigned and that there was no probable cause for detention. The petition was abandoned though when counsel learned of the May 1980 indictment, and a subsequent motion to dismiss was filed by counsel on March 10, 1981. This latter motion recited that Perry had previously filed a request for a speedy trial and an appointed attorney while still in the penitentiary, but it had not been acted upon for nearly two years.

The hearing on the motion to dismiss followed on March 12, 1981. On cross-examination by the district attorney, Perry testified, without objection, that “they (the Parole Board) was going to reinstate my parole if I didn’t have a detainer against me. And they asked me to file for it, and if I got off it they were going to reinstate my parole.” He also claimed that he had been prejudiced by the prosecution’s delay since he had lost the opportunity for concurrent sentencing. The defendant’s counsel additionally argued that some prejudice might arise, depending on Perry’s memory of the events.

During this motion hearing, the original of the July 31,1980 Parchman petition for a speedy trial and appointment of counsel was discovered in the district attorney’s file. The appointed defense counsel had prior access to the district attorney’s file, but this motion was not discovered until the morning of the hearing.

At the conclusion of the above testimony and arguments, the circuit judge overruled the motion to dismiss on the ground that in his opinion the prejudice shown did not arise to the degree of prejudice required by law to dismiss the charges. At this time defendant’s counsel also made a request for bond reduction from $20,000.00. That request was denied by the trial court since Perry was charged as an habitual offender, and his trial date set for five days later was unchanged.

No trial was had on this charge on March 17, as scheduled, nor was a continuance sought or granted. Thus, Perry’s counsel renewed his motion to reduce the bond on March 19, 1981. The motion alleged that the district attorney's office had nolle pros-equied the current grand larceny charges and was planning to reindict the defendant at the May, 1981 term on embezzlement charges on the same facts. The motion for reduction of bond was denied, and the defendant remained incarcerated, although no longer being prosecuted on the grand larceny charge.

On May 20, 1981 the grand jury returned an indictment charging Perry with embezzlement for the alleged criminal activity occurring on June 9, 1979. Perry was arraigned on May 29, 1981 and was convicted by jury trial on June 15,1981. Thus, Perry was convicted more than two years after the crime occurred.

II.

The appellant’s first contention is that he was denied the right to a speedy trial. Extended pretrial delay in criminal litigation is frequently claimed by criminal defendants as a deprivation of a fundamental right, but such a claim is seldom held to violate the speedy trial guarantees contained in constitutional and statutory provisions. G. Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 611 (1980). This no doubt results from the severity of the sole remedy recognized for violation of the denial of the right which calls for dismissal of the charges. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Turner v. State, 383 So.2d 489 (Miss.1980).

The speedy trial guarantee fulfills several purposes for the individual defendant. First, the guarantee enhances the fact-finding process by making it more likely that evidence and memories of witnesses remain readily available. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). Second, the right prevents oppressive pretrial incarceration and it minimizes the anxiety and concern of the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Obviously, these concerns can be both aggravated and compounded in the case of an accused who is imprisoned. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). “No court should overlook the possible impact pending charges might have on his prospects for parole and meaningful rehabilitation.” Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). Furthermore, the conditions under which an accused must serve his sentence, as in the instant case, may be greatly worsened by the pendency of an outstanding charge against him.

A defendant aggrieved by these delays may invoke several distinct sources of law in support of his right to a speedy trial. Perry based his argument on analogous Mississippi and United States constitutional guarantees. Miss.Const. art. 3, § 26; U.S. Const, amends. VI & XIV. But neither constitutional provision contains a time frame within which a trial must be held.

Mississippi, like most states, has enacted a statute setting forth a time limitation for a defendant’s trial computing from date of arraignment. Our Legislature enacted section 99-17-1 of the Mississippi Code Annotated (Supp.1981). The statute provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

We held in Payne v. State, 363 So.2d 278 (Miss.1978) that bur speedy trial statute is plain and unambiguous, and it requires that the defendant be tried no later than 270 days after arraignment unless good cause be shown. Thus, under this statute, the time prior to arraignment is not computed to determine compliance with the statute. Davis v. State, 406 So.2d 795 (Miss.1981); Turner v. State, supra.

In the instant case, the only arraignment occurred on May 29, 1981, and the trial followed on July 15, 1981. The time period involved was only 47 days. Thus, the 270 day maximum period allowed by section 99-17-1 was complied with insofar as the second indictment is concerned.

However, the analysis does not end here. There was never an arraignment on the first indictment of May, 1980. Therefore, the statutory time period of 270 days never began to run on the first indictment to insure speedy trial compliance; thus there was no violation of the statute.

However, if the statute is not violated, can we assume that the constitutional requirements are met? Obviously, if arraignment is delayed for a long period of time following an arrest, or indictment, or charge, an accused’s right to a speedy trial could be denied even though there was strict compliance with the requirements of section 99-17-1. This Court must protect our constitutional guarantees where legislative statutes prove to be inadequate.

The constitutional right to a speedy trial, as opposed to section 99-17-1, attaches at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). In other words, the right to a speedy trial applies only after a person has been accused. In the instant case, Perry became an “accused” when the detainer was lodged at Parchman on November 27, 1979.

Once this right attaches, the Barker balancing test adopted by this Court must be applied to determine whether the right to a speedy trial has been denied. Wells v. State, 288 So.2d 860 (Miss.1974). The Barker court identified four factors to be considered:

(1) Length of delay;
(2) Reason for the delay;
(3) The defendant’s assertion of his right to a speedy trial; and
(4) Prejudice resulting to the defendant.

In addition, the United States Supreme Court cautioned that none of these individual factors could completely dispose of the issue. Instead, all four factors must be considered together. Under this analysis we have a very difficult case which tilts in Perry’s favor.

(1) Length of delay: Perry became an “accused” with regard to the Harrison County charges on November 27, 1979, when the detainer was lodged at the Parch-man penitentiary. His eventual trial on the embezzlement charge did not occur until June 15, 1981. The delay was, therefore, approximately 19 months, or 566 days. This is a rather substantial length of time when one considers the time periods required by other jurisdictions. See Federal Speedy Trial Act of 1974, 18 U.S.C.A. §§ 3161-74 (Supp.1981) (indictment required within 30 days from arrest or summons; trial required within 70 days from indictment); Comment, The Speedy Trial Guarantee: Criteria and Confusion in Interpreting its Violation, 22 DePaul L.Rev. 839, 845-47 (1973) (discussion of attempts by states and federal courts to protect right to speedy trial by imposing short time limits between charge and trial).

(2) Reason for the delay: The second factor is perhaps more difficult to assess. It becomes highly important when the prosecution caused the delay as a result of a bad motive. Compare Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) (deliberate attempts by prosecution to injure defendant’s case was clearly unjustifiable) with Strunk, supra (unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay). Of course, if the defendant caused the delay, he will not be allowed to complain. In the case at bar, the prosecution provided no excuse for this delay. Where the defendant has not caused the delay, and where the prosecution has declined to show good cause for the delay, we must weigh this factor against the prosecution. It is the burden of the state to see that a defendant receives a speedy trial. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) (duty of charging authority is to provide a prompt trial); Smith, supra (right to speedy trial cannot be dispensed oh ground that accused is serving time in another jurisdiction); Turner v. State, supra (state must show good cause for failure to bring defendant to trial within prescribed time).

(3) The defendant’s assertion of his right: In the Barker case, this factor is afforded strong evidentiary weight. On July 31, 1980, Perry asserted his right for appointed counsel and speedy trial by mailing a request for the same to the sheriff upon learning of the sheriff’s detention order. Is this mailing to the sheriff, rather than the circuit court sufficient? We answer affirmatively since it was the sheriff’s detainer that was holding him. The request was received and was in the district attorney’s file on the date of the hearing on the motion to dismiss. A state may not neglect the defendant’s request.

In Cummings v. State, 219 So.2d 673 (Miss.1969), this Court said, quoting from Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969):

In a separate concurring opinion by Mr. Justice Harlan we also find the statement: T agree that a State may not ignore a criminal accused’s request to be brought to trial.... ’

[219 So.2d at 675].

(4) Prejudice to the defendant: Perry was prejudiced in serving a lengthy period of time at Parchman without the opportunity to participate in various rehabilitation programs due to the pendency of the Harrison County charges. He asserted loss of opportunity for concurrent sentences. But, this does not apply because concurrent sentences are permitted only when a defendant is sentenced on different convictions at the same term. Miss. Code Ann. § 99-19-21 (1972). He also argued loss of memory. Our Court discussed prejudice in Wells v. State, supra, as follows, quoting from Barker, supra.

There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

[288 So.2d at 863],

III.

In light of the above analysis we hold that Perry has been denied his right to a speedy trial, and therefore, the Harrison County charges must be dismissed and the conviction reversed. If no arraignment is had after becoming an accused, as in this case, then the constitutional guarantees of speedy trial as interpreted by the four pronged test in Barker come into play and arraignment must be within a reasonable time. Each case is a factual determination and we hold that under this factual situation such was violative of the defendant’s constitutional right to a speedy trial. The defendant must be discharged.

Having discharged the defendant on the first issue, the second issue of right to counsel need not be addressed.

REVERSED AND DEFENDANT DISCHARGED.

PATTERSON, C. J., and SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, BOWLING and DAN M. LEE, JJ., concur.


source: Caselaw Access Project

author: PRATHER, Justice,

license: Public Domain

text:
    James Earl WHITLOCK v. STATE of Mississippi.
    No. 53438.
    Supreme Court of Mississippi.
    Sept. 8, 1982.

      Bell & Collins, James D. Bell, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROY NOBLE LEE and PRATHER, JJ.
   PRATHER, Justice,

for the Court:

James Earl Whitlock was convicted for the armed robbery of Precious Robinson in the First Judicial District of the Circuit Court of Hinds County, and was sentenced to life imprisonment. He has appealed, assigning as errors, the following:

(1)That the trial court committed error in admitting evidence tending to show the commission of another crime and thereby prejudicing the defendant; and

(2) That the trial court committed error in allowing over objection the use of leading questions by the prosecutor; and

(3) That the trial court committed error in refusing to grant a reasonable hypothesis instruction requested by the defendant.

Precious Robinson was at home with her infant child on the night of December 29, 1978, when an individual broke into her home with a stocking mask over his head and a pistol in his hand. The intruder told her on several occasions to give him money and he threatened her with the pistol by pointing it toward her head. Under these circumstances, Robinson could not remember where her purse was, but, she gave her car keys to the intruder and suggested that he look for her purse in the car. The intruder fired the gun in her bedroom and told her that he would kill her. The intruder tied her hands before going to the car to search for the purse. While the intruder was out of the home Precious Robinson managed to untie herself and she hurried to the closet to get a rifle. The assailant returned to the room and wrestled the rifle away from her. At this time, she recalled having placed her purse in a tote-bag and she gave it to the robber. Before leaving her, however, the robber again tied her hands and feet together, and he left the bedroom with the purse. But, he came back with a knife from the kitchen and cut the cord on her feet and raped her. As soon as the robber left she freed herself from the bindings, and called both the police and her husband. Her husband took her to the hospital for examination subsequent to his arrival at home.

Approximately one month after this occurred Precious Robinson was requested to view a lineup of persons at the police station and positively identified the defendant, James Earl Whitlock, as the robber that broke into her home. Her positive identification was based on his voice, height and build. As a result, James Earl Whitlock was subsequently charged with armed robbery and was brought to trial.

At the beginning of the trial for armed robbery the trial judge mistakenly informed the jury that the charge against the defendant was that of rape. Upon realizing his error, the trial judge asked each of the jurors individually if they could disregard his statement and give the defendant a fair trial on the correct charge of armed robbery. Each of said jurors responded affirmatively. There was no motion for a mistrial.

At two other points during the trial, without direct solicitation, two witnesses made statements about either the fact of rape or the charge of rape. The first witness was the victim herself who testified that the defendant raped her during the course of the armed robbery. This statement, at the time it was made, was not objected to by the defendant. Within a very few minutes after this testimony was given by the victim and at a time when the jury was outside the presence of the court, the defense counsel became aware of the testimony that he had apparently failed to hear. The counsel then asked for an objection, which was granted. Upon bringing the jury in, the court admonished the jury to disregard the testimony of rape, and to not consider it at all in weighing the evidence to determine their verdict. Moreover, the jury was polled individually at that time and each responded that they could disregard the rape testimony.

The second witness, a police officer who was identifying the rifle taken from the Robinson house, stated that the rifle was taken in k rape and burglary case. Upon this statement the court of its own volition and without request of defense counsel, instructed the jury to disregard the statement and again asked them if on their oath they could set aside that testimony and not let their judgment be influenced by the remark. They each individually again responded that they could do so. On this occasion there was no objection by the defendant to this testimony nor was there a motion for a mistrial.

I.

Two aspects are involved in the defendant’s contention that he was prejudiced by the rape testimony. The first aspect that this Court addresses is the remedial effect of the lower court’s instructing the jury to disregard the references to rape brought out during the armed robbery trial. This Court has addressed this issue on several occasions and in the recent case of Carrol v. State, 391 So.2d 1000 (Miss. 1980) we stated:

It is the well-established rule in Mississippi that where a trial judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the minds of the jurors. Forrest v. State, 352 So.2d 1328 (Miss. 1977); Herron v. State, 287 So.2d 759 (Miss. 1974); Myrick v. State, 290 So.2d 259 (Miss. 1974).

[391 So.2d at 1002].

In the case under consideration the Court additionally notes that the defense counsel did not move for a mistrial following these remarks on any occasion. This procedure was also addressed in the Carrol case, supra:

Moreover, in this case, when the trial judge sustained defense counsel’s objection and advised the jury not to consider the testimony, defense counsel did nothing further. Under the circumstances, the trial judge was justified in assuming that defense counsel was satisfied with his disposition of the matter, the objection having been sustained and the jury having been advised not to consider the objectionable testimony.

[391 So.2d at 1002-03],

If defense counsel considered the admonitions by the trial judge inadequate, or if he considered the references to rape to be so prejudicial or inflammatory against the defendant that the admonitions of the trial judge were ineffective in removing this harmful effect, it was necessary at that point that defense counsel move for a mis-, trial. The facts and circumstances reflected by the record in this case are not such as to require the trial judge, of his own volition, to enter a mistrial. No reversible error was committed by the trial judge in regard to his procedural handling of this matter.

In addition, a second aspect renders the defendant’s contention meritless. Although it is the general rule in this state that proof of other crimes, separate and distinct from the one charged, are not admissible, there are recognized exceptions. Such evidence is admissible to show identity, guilty knowledge, intent, motive, and in circumstances where the offense charged is so interwoven with the other offense that it cannot be separated. Johnson v. State, 416 So.2d 383 (Miss. 1982); Page v. State, 369 So.2d 757 (Miss. 1979); Gray v. State, 351 So.2d 1342 (Miss. 1977).

In the case under consideration, the proof showed that the intruder wore a stocking mask over his face. Furthermore, the victim identified this defendant several months after the crime by his build, height and voice. Thus, it appears to this Court that the contested evidence was not only admissible, but perhaps necessary to aid the jury to better judge the victim’s identification of the defendant. In addition, another exception also allowing admission of the testimony is that the robbery and the alleged rape were so interwoven as to be incapable of separation. Therefore, this Court is of the opinion that the evidence, even if prejudicial, was admissible under two exceptions to the general rule as stated above.

II.

The next assignment of error was that the trial court committed error in overruling a defense objection to leading questions by the prosecutor. In the testimony of this case a friend of the defendant named Clarence Joiner was offered as a witness by the state. The following is the testimony objected to by the defense.

QUESTION: Did he ever tell you anything about Presidential Hills?
BY MR. FOUGEROUSSE: Your Hon- or, I object to that question. By phrasing that question that way, the District Attorney is leading the witness. Even though we object, the witness now knows what kind of response to make and I would ask the Court to admonish the District Attorney—
BY THE COURT: Is your objection to leading?
BY MR. FOUGEROUSSE: Yes sir.
BY THE COURT: Please don’t lead the witness, Mr. Peters.
QUESTION: When you and this Defendant were talking about that gun, did he ever mention anything to you about a house and the gun?
ANSWER: Yes sir.
QUESTION: What did he say?
ANSWER: Well, he just said, you know, he got if [sic] from a house out in Presidential Hills.
QUESTION: What did he say—
BY MR. CURRIE: I’m going to object. This is a perfect example. He gives him Presidential Hills and then he gives him the rifle and then he gives him the house.
BY THE COURT: Overruled. Move along.

A leading question is one that suggests to the witness the specific answer desired by the examining attorney. McCormick’s Handbook of the Law of Evidence 8 (2d ed. 1972). Trial courts are given great discretion in permitting the use of such questions, and unless there has been a manifest abuse of discretion resulting in injury to the complaining party, we will not reverse the decision. Seals v. St. Regis Paper Co., 236 So.2d 388 (Miss. 1970); Thomas v. State, 217 So.2d 287 (Miss. 1968); Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896 (1933). This is because the harm caused is usually inconsiderable and specu lative, and only the trial court was able to observe the demeanor of the witness to determine the harm. 3 J. Wigmore, Evidence in Trials at Common Law, § 770 (1970). In the instant case, it does not appear that the use of the above questions were so prejudicial as to deny the defendant a fair trial. Even without Joiner’s testimony, there was substantial evidence upon which Whitlock could be convicted. We, therefore, find no reversible error in this assignment.

III.

The last assignment of error in this case is that the trial court committed error in refusing a reasonable hypothesis instruction requested by the defense as follows:

If you can reconcile the evidence upon any reasonable hypothesis consistent with the defendant’s innocence, you should do so and find him not guilty.

No authorities by defense counsel were cited in support of this contention. This instruction appears to be a variation of the circumstantial evidence instruction which tells a jury that it must find a defendant guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with the defendant’s innocence. It is only in cases where the evidence is entirely circumstantial that the jury is required to exclude every other reasonable hypothesis than guilt. Nobles v. State, 241 So.2d 826 (Miss. 1970); Pettus v. State, 200 Miss. 397, 27 So.2d 536 (1946); 1 J. Alexander, Mississippi Jury Instructions § 1501 (1953). In the case at bar, the prosecution relied upon both direct and circumstantial evidence. Mrs. Robinson was an eyewitness who identified Whitlock as the accused. Therefore, we find no error in this assignment.

Finding no reversible error, the conviction and sentence of the appellant are affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, HAWKINS, BOWLING and DAN M. LEE, JJ., concur.


author: BOWLING, Justice,

text:
    NITTO DENKO AMERICA, INC. v. ABCD TAPES, d/b/a Dixie Tape Company, Howard L. Hobbs, and U. S. F. & G. Company.
    No. 53381.
    Supreme Court of Mississippi.
    Sept. 8, 1982.

      Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellant.
    Holleman & Krogstad, L. Kenneth Krog-stad, Gulfport, for appellee.
    Before PATTERSON, BOWLING and DAN M. LEE, JJ.
   BOWLING, Justice,

for the Court:

Appellant Nitto Denko America, Inc., secured a default judgment in the amount of $69,450 against appellee ABCD Tapes, d/b/a Dixie Tape Company. Execution was issued on the judgment on May 30, 1980, returnable to the July 1980 term of Circuit Court in Harrison County; the term to be convened by statute on July 14.

The stamped return on the execution showed the stamp of appellee Sheriff Howard L. Hobbs, was dated July 21, 1980, and was signed by Deputy Sheriff McKenna. The stamp was a form “nulla bona” stamp. Appellant filed its motion for judgment alleging that the sheriff and his surety, United States Fidelity & Guaranty Company, should have judgment entered against them by the court pursuant to the provisions of Mississippi Code Annotated, section 19-25-41, (1972). This statute provides as follows:

Liability of sheriff for failure to return execution.
If any sheriff or other officer properly authorized to act for him, shall fail to return any execution to him directed, on the return day thereof, the plaintiff in execution shall be entitled to recover judgment against the sheriff or other officer, and his sureties, for the amount of the execution and all costs, with lawful interest thereon until the same shall be paid, and with five per centum on the full amount of the judgment as damages, to be recovered by motion before the court to which the execution is returnable, on five days’ notice first being given thereof. However, after the sheriff or other officer, or the sureties shall have paid the amount of money and damages recovered, then the original judgment and execution shall be vested in the officer or his sureties paying the recovery and damages, for his or their benefit, and execution may issue on the original judgment in the name of the plaintiff, for the use and benefit and at the cost and charges of the officer or his sureties in whom the judgment may be so vested. Nothing herein contained shall affect any other remedy against officers for failing to return executions, and the remedy given by this section shall apply in favor of county treasuries, clerks, and other officers and witnesses, for the recovery of all jury taxes, fees, and costs, and interest and damages thereon, in the same manner as to plaintiffs in execution. In any proceeding against a sheriff or other officer for failing to return any process, proof that the process was put in the post office, duly addressed to him, and that the postage was paid thereon, shall be prima facie evidence of the receipt thereof by the officer.

Appellant introduced the court papers, the surety bond, and the original execution after it was returned to the office of the clerk. No testimony was introduced by appellant regarding what occurred during the time the execution was in the office of the sheriff.

Appellees presented the testimony of Deputy Sheriff Edward F. McKenna, who handled the entire transaction regarding the writ of execution. He testified that he made eight or ten trips during the time he had the execution to the place of business formerly occupied and operated by ABCD Tapes, d/b/a Dixie Tape Company. He testified that on none of the trips could he find anyone or anything upon which he could levy execution. Pictures were introduced to show the premises during this period of time. McKenna testified that all his trips in an effort to levy execution on the judgment were made prior to July 14, 1980, the return date. He testified that the writ was placed in the return basket at the proper time, but that for some reason the nulla bona stamp was not placed on the return until July 21, 1980.

The president of ABCD Tapes, Inc. testified regarding McKenna’s effort to serve the execution. He stated that he was contacted by McKenna before July 14. He further testified that there was nothing in the building at anytime upon which execution could be levied. What little equipment was in the old building was not owned by ABCD Tapes.

Two attorneys testified, both of whom were involved in federal court judgments against ABCD Tapes. They testified that nothing was in the building or on the premises of the judgment creditor upon which execution could be levied. What equipment was in the building was seized under a prior federal execution.

After a hearing on the appellant’s motion for judgment against Sheriff Hobbs and his surety, the circuit judge found as a fact that during the time of the outstanding execution there were no assets of ABCD Tapes, Inc. on its premises to be found by Deputy McKenna on his eight or nine trips. The court further found that Deputy McKenna was diligent in his efforts to levy on the writ of execution, and that he actually returned the writ to the sheriff’s office prior to the return date. The circuit judge found these facts by a preponderance of the evidence and beyond a reasonable doubt. He further found that Deputy McKenna was diligent, did exactly what he was required to do, and everything was done properly except the date written on the nulla bona stamp. The trial judge denied appellant’s motion for judgment against appel-lees, Hobbs and U.S.F.&G.

Appellant relies on several old cases principally Beall v. Shattuck, 53 Miss. 358 (1876), in contending that the statute in question should be strictly construed in all cases regardless of undisputed facts as existed in the case sub judice. We cannot agree with this contention. It is a well-recognized principle of law that penal statutes are to be strictly construed. It is hard to imagine a statute more penal than MCA § 19-25-41. This Court had a similar question before it in the case of Watson v. Boyett, 151 Miss. 726, 118 So. 629 (1928). We held there that very slight circumstances would exempt officers from being penalized under the statute in question. We said:

The statute involved is highly penal, Simms v. Quinn, 58 Miss. [221] 225; Skinner v. Wilson, 61 Miss. 90; Cox v. Ross, 56 Miss. 481. In the first case above, the court, in its opinion, referred to the penalty provided by the statute as severe; in the second case, the court said, among other things:

“Wherever, -indeed, statutes of this character are found they are regarded as of a character so highly penal that very slight circumstances are held to exempt officers from their operation.”
In the last case, the court, in its opinion, referred to the statute as peremptory, harsh, and highly penal. Under the statute, if a sheriff fails to make return of an execution in his hands, according to its command, he is made liable for the penalty denounced by the statute whether the defendant in execution be solvent or insolvent. In other words, the statute makes the sheriff liable even though it be shown that the judgment upon which the execution was issued was absolutely worthless. Cox v. Ross, supra. We think the present case is a stronger case for the sheriff than either of the cases above cited. Here we have the plaintiff in execution, through her agent, her husband, shortly before the return day of the execution, admitting to the sheriff that nothing could be made out of the defendant in execution. That, in connection with the balance of the conversation that took place between them as above set out, we think, constituted more than a slight circumstance calculated to throw the sheriff off of his guard — to make him less diligent in the performance of the duties required of him by the statute. We are of the opinion that it was sufficient to relieve the sheriff from the extreme penalty of the statute.

In the present case it is undisputed that Sheriff Hobbs through Deputy McKenna was as diligent as possible in trying to levy on the writ of execution. As stated, he made eight or ten trips and contacted all he knew to secure information about property on which the levy possibly could have been made. It is undisputed that all of his efforts to secure execution were made prior to the first day of the July 1980 term, and the writ of execution duly placed in the proper place to be returned to the clerk’s office. Through oversight the nulla bona stamp was not affixed to the writ of execution until seven days after the court term commenced. In our opinion, these undisputed facts certainly were “slight circumstances” which require that the highly penal statute not be applied.

We hold that the circuit judge had ample evidence to deny appellant’s request for judgment under the statute in question.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: ROY NOBLE LEE, Justice,

text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. Horace E. McLEOD.
    No. 53731.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Fred J. Lotterhos, Jr., Jackson, for appellant.
    Cumbest, Cumbest & Hunter, W. Harvey Barton, Pascagoula, for appellee.
    Before PATTERSON, ROY NOBLE LEE and PRATHER, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

The Circuit Court of Jackson County, Honorable Clinton E. Lockard, presiding, entered a judgment on December 11, 1981, which reversed an order of the Mississippi Employment Security Commission denying unemployment benefits to Horace E. McLeod. The court ordered payment of such benefits, and the Mississippi Employment Security Commission has appealed here.

The sole question presented is whether or not the lower court erred in granting unemployment benefits and in its interpretation of availability as stated in the Mississippi statute.

The evidence is undisputed in the case. Appellee is married, and has one child. He began work as a laborer with Quaker Oats Company in Pascagoula, Mississippi, on December 5, 1975, and on July 2, 1981, he was laid off due to a plant-wide cutback. At that time, he was working the second shift, 2:30 to 10:30 p. m., forty (40) hours per week, plus overtime at six dollars twenty-five cents ($6.25) per hour. On July 6,1981, appellee filed a claim for unemployment benefits. He was interviewed during investigation of the claim, on July 14, 1981, and gave the following statement to the claims examiner:

I am attending school at Jackson County Jr. College, 5 days a week 8 A.M. until 2 P.M. Diesel Mechanic Vocational School. V. A. Training. I would quit school if I found a job. I could work any second shift and attend school. I started school 3-16-81 will finish 11-82. I am receiving $464.00 per month VA school benefits.

On July 24,1981, appellant notified appel-lee that his claim for benefits had been disallowed. The decision was appealed by appellee to a claims referee where the same facts were recorded, and appellee testified that he was available for work and would quit school if classes interfered with his work. The claims examiner made the following finding of fact and rendered the opinion and decision pursuant thereto:

FINDINGS OF FACT: Claimant was employed as a diesel machinists by Quaker Oats Company, Pascagoula, Mississippi from December 5, 1975, to July 2, 1981, when he was laid-off due to lack of work. Since March 6, 1981, claimant had been a full-time student at Jackson County Junior College, enrolled under G.I. course, and attending school from 8:00 A.M., to 2:00 P.M., Monday through Friday each week.
On August 3, 1981, claimant was called back to work by his former employer and is working from 2:30 P.M. to 10:30 P.M., five days per week, while he is still attending school full-time.
Claimant advises that if his school attendance should interfere with his work, he will quit school.
OPINION: Section 71-5-511(c) of the Mississippi Employment Security Law provides that an individual to be eligible for benefits in any week, must be able to work and available for work. The availability requirements are interpreted to mean that the individual must be genuinely attached to the labor market, ready and willing to accept any suitable work, and that his chances of obtaining work must not be unduly restricted.
In this case, claimant is a full-time student and is considered prima facial evidence of his non-availability for work. It is the opinion of the Referee, in this case, that claimant is not available for work as that term is used in the law. The determination of the Claims Examiner is in order.
DECISION: Affirmed. Claimant’s initial claim effective July 5, 1981, is disallowed due to non-availability.

Appellee then appealed to the Mississippi Employment Commission Board of Review which affirmed the decision of the referee on October 15,1981. Thereafter, he appealed to the Circuit Court of Jackson County, which entered the following judgment on December 11, 1981:

1. The finding of fact by the Referee and adopted by the “Commission” that the Claimant, Horace E. McLeod, SS# [ XXX-XX-XXXX ], was employed as a diesel machinist by Quaker Oats Company, Pascagoula, Mississippi, from December 5, 1975 to July 2, 1981, when he was laid off due to lack of work and rehired August 3, 1981, and that said Claimant was attending Jackson County Junior College since March 16, 1981, as a full-time student, but would quit school if it interfered with his work (obtaining a job) is uncontested and supported by the testimony and evidence.
2. The conclusion of law by the Referee and adopted by the Commission that, under Section 71-5-511(c) of the Mississippi Code of 1972, a full-time student is not available for work, per se, is erroneous and said claim should not have been denied until Claimant was disqualified under the provisions of Section 71-5-513(4) or otherwise disqualified.
NOW, THEREFORE, the Order of the Mississippi Employment Security Commission is reversed and the Claimant, Horace E. McLeod, is hereby held to be entitled to unemployment benefits from and after July 2,1981, when he was “laid off” through the week of August 3, 1981, when he was rehired.

The question here is one of first impression in this state. For decision is the interpretation of Mississippi Code Annotated Section 71-5-511(c) (Supp.1981) insofar as it pertains to a college student, and particularly the requirement “he is available to work and available for work.”

The appellant contends that since appel-lee is a student attending school from 8:00 a. m. to 2:00 p. m., he is prima facie unavailable for work and that attending school is his prime interest rather than employment. Although uncontradicted, appellant apparently has rejected the repeated statement of appellee that his employment was his chief concern and that he would terminate his schooling rather than permit it to interfere with his occupation. In Mills v. Miss. Employment Security Commission, 228 Miss. 789, 89 So.2d 727 (1956), which involved a union member’s refusal to go back to work for less than union scale wages, holding that the employee was not available for work and denying him benefits, this Court cited Dwyer v. Appeals Board of Michigan Unemployment Compensation Comm’n., 321 Mich. 178, 32 N.W.2d 434 (1948), and quoted the following:

“The basic purpose of the requirement that a claimant must be available for work to be eligible for benefits is to provide a test by which it can be determined whether or not the claimant is actually and currently attached to the labor market. To be available for work within the meaning of the act, the claimant must be genuinely attached to the labor market, i.e., he must be desirous to obtain employment, and must be willing and ready to work. Such is the rule in other jurisdictions. See Reger v. Administrator of Unemployment Comp. Act, 132 Conn. 647, 46 A.2d 844; Hunter v. Miller, 148 Neb. 402, 27 N.W.2d 638, and see also, Ford Motor Co. v. Unemployment Comp. Com., 316 Mich. 468, 25 N.W.2d 586, 588, in which we held that a claimant who limited her availability for employment to work on a specific shift was not eligible for benefits, saying, ‘one may not be regarded as exposed unequivocally to the labor market unless willing and able to accept employment that he is qualified to perform.’ ” [228 Miss. at 797, 89 So.2d at 729],

See also Mississippi Employment Security Commission v. Swilley, 408 So.2d 61 (Miss. 1982), which denied benefits to the employee, who refused to work for an employer anywhere at less than ten dollars ($10.00) per hour. The Court also held in Mississippi Employment Security Commission v. Blasingame, 237 Miss. 744, 116 So.2d 213 (1959), that an employee was not available for work only at certain hours during which he had transportation to and from work in that the employee was not “unequivocally exposed to the labor market,” having restricted her hours and making only nominal efforts to obtain work. With reference to the specific question involved here, 81 C.J.S. Social Security § 259 (1972) states the following:

Students. Attendance at school may make a claimant unavailable for work, particularly where restrictions and conditions are placed on his availability for employment in order that he may continue his education, as discussed infra § 250. On the other hand, a claimant may further his education while unemployed and still receive benefits so long as he meets the requirements for eligibility and the tests for availability. Accordingly, a claimant cannot be denied unemployment benefits merely on the basis that he is a full-time student, and under such circumstances, he may be eligible for benefits where his primary goal is to obtain employment Statutory provisions specifically governing the eligibility of students to receive unemployment benefits are limited to cases coming within their scope, and various factors may be considered in determining the eligibility of unemployed persons undergoing vocational training. (Emphasis added)

Also, in a discussion on students’ school attendance, 76 Am.Jur.2d Unemployment Compensation § 73 (1975) sets forth:

A claimant who voluntarily resigns his position, and renders himself unavailable for full-time employment, in order to enter college, is held not entitled to compensation benefits. Thus, a claimant cannot attend school and collect unemployment compensation at the same time unless he can successfully show that he would quit school if necessary to accept a job. However, the contention that the claimant could arrange his schedule around employment has been rejected on the ground that it would be impossible to arrange schooling around a job requiring the employee to work a rotating shift. Furthermore, it has been held that the asserted willingness of the claimant to quit school if necessary in order to accept employment need not be accepted by the trier of facts.
On the other hand, where an applicant has completed his studies and has again become available for employment, he is to be treated as any other applicant. And under the terms of a particular statute, it has been held that a part-time worker and full-time college student need not be available for full-time employment to be eligible for benefits. (Emphasis added)

Cases from other jurisdictions holding that a student employee is entitled to benefits are: Hansen v. Continental Can Co., 301 Minn. 185, 221 N.W.2d 670 (1974) (awarding benefits); Petro v. Employment Division, Department of Human Resources, 32 Or.App. 17, 573 P.2d 1250 (1977) (remanding for failure to make finding of fact); Patronas v. Unemployment Compensation Board of Review, 5 Pa.Comm. 491, 291 A.2d 118 (1972) (awarding benefits).

In Hansen v. Continental Can Co., supra, a claimant was involuntarily laid off his 4:00 p. m. to 12:30 a. m. second shift job. Claimant began his senior year shortly after he was laid off, but at no time were his classes scheduled past 12:00 noon. The Court held that he was able to be a full-time employee at Continental Can even though he was a full-time student and was entitled to unemployment benefits.

Wiley v. Unemployment Compensation Board of Review, 195 Pa.Super. 256, 171 A.2d 810 (1961), is similar on the facts to the case sub judice. Wiley was an unemployed family man who had been both in full-time employment or either full-time or part-time in college during the same period. The Court held that in the absence of proof that Wiley refused suitable employment, he should not be denied benefits and that he did not fall into the category of an ordinary college student whose primary purpose was to obtain an education and who was available for work only conditionally or on a limited basis.

Claims involving this question necessarily must be considered on a case-by-case basis. Appellee here worked as a diesel machinist for his employer over a period of six (6) years. When laid off because of a cutback in operations by his employer, through no fault of his own, he attended diesel mechanical school, apparently in an effort to improve his skill, which, in turn, would be beneficial to his employer once he resumed work. Without dispute, he would terminate his schooling and work on whatever shift the employer required without limitation or restriction. He is to be commended, and not criticized or penalized, for being industrious and ambitious rather than idle and lazy. We are of the opinion that appellee was available to, and for, work within the meaning of Section 71-5-511(c), and that he is entitled to unemployment benefits and that the judgment of the lower court should be affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and WALKER, BROOM, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

BOWLING, J., took no part.


author: BROOM, Justice,

text:
    DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY v. Earline CUMMINGS.
    No. 53422.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Mitchell, McNutt, Bush, Lagrone & Sams, John S. Hill, Tupelo, for appellant.
    Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellee.
    Before SUGG, P. J., and BROOM and BOWLING, JJ.
   BROOM, Justice,

for the Court:

Jurisdiction of the Workmen’s Compensation Commission to review an Order of the Administrative Judge (AJ herein) is the chief issue of this case appealed from the Circuit Court of Lee County, the Honorable Fred Wicker, Circuit Judge, presiding. Claimant Earline Cummings filed two claims against her self-insured employer, Day-Brite Lighting Division, Emerson Electric Company: the first for a back injury which occurred January 30, 1976, and the second for a subsequent back injury which occurred October 6, 1978. After the two causes were consolidated, the AJ conducted a hearing. By order dated August 29,1980, he made findings of fact and law, and awarded certain temporary benefits to be paid until claimant Cummings’ medical condition stabilized and a final determination could be made of the extent of her disability and any resulting loss of wage-earning capacity.

Both parties petitioned for review by the full Workmen’s Compensation Commission, pursuant to the terms of Mississippi Code Annotated § 71-3-47 (1972). Before the claim could be heard by the entire commission, both parties filed a joint motion to remand the case back to the administrative judge on the grounds that maximum medical recovery had been attained by claimant, and that such a remand would “promote judicial economy and efficiency and will a void the necessity for two separate appeals in this case.” (emphasis added). On October 14, 1980, the Workmen’s Compensation Commission issued an order granting this motion and directing the administrative judge “to hold additional hearings and enter a final order resolving all disputed matters in this case.”

After additional hearings, the administrative judge issued a second order on December 12, 1980. In this order the administrative judge indicated that only two issues required resolution: (1) whether the claimant had attained maximum medical recovery and (2) the degree of permanent disability and the amount of any subsequent loss of wage-earning capacity. As to these issues, the administrative judge found that maximum medical recovery had been attained on August 28, 1980, and that the claimant had suffered a 25% permanent partial disability. Neither party filed a petition with the commission for review of this order of the administrative judge by the full commission.

On March 26, 1981, by majority vote, the Workmen’s Compensation Commission issued an order stating that the commission had no jurisdiction to review the orders of the administrative judge because neither party filed a timely petition for review pursuant to the requirements of § 71-3-47, supra, (1972).

The commission relied upon Day Detectives, Inc. v. Savell, 291 So.2d 716 (Miss.1974), and Marlboro Shirt Company v. Whittington, 195 So.2d 920 (Miss.1967) as authority for the proposition that the 20-day filing requirement is jurisdictional in nature. However, these cases do not reach the precise issue of the instant case. Further, the commission stated that its order remanding the cause to the administrative judge had divested the commission of jurisdiction and therefore the employer’s failure to either reserve jurisdiction in the commission or to petition anew for review by the commission within the 20-day time period resulted in the order of the administrative judge becoming final. From this order, the employer appeals.

Commissioner Hill dissented, taking the position that the purpose of the remand was simply to avoid the necessity of multiple appeals. He stated that inasmuch as the second order did not supersede the first order but was merely in addition to the first order, the employer (appellant) should not be denied its properly perfected right of review of the issues decided in the August 29, 1980, order.

The central issue is whether a petition for review by the full Workmen’s Compensation Commission from an award by an administrative judge will allow the commission to retain jurisdiction of the review after a subsequent remand to the administrative judge for additional hearings and findings, or whether a new petition for review must be filed subsequent to the issuance of the order based upon those additional hearings. A proper analysis of this issue revolves around the basic nature of the jurisdiction of the Workmen’s Compensation Commission.

The statute setting forth the jurisdiction of the commission is Mississippi Code Annotated § 71-3-47 (1972), which also sets out the authority of the commission to appoint a representative, and provides for review of such a representative's findings upon receipt of a petition for review within twenty days of the filing of the representative’s order. Mississippi Code Annotated § 71-3-53 (1972) vests by statute continuing jurisdiction in the commission.

We have previously set forth the role of the attorney-referee (now administrative judge) as a “facility of the Commission.” Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754 (1954). This role of “facility of the Commission” follows directly from the fact that the commission itself, and not the administrative judge, is the factfinder in all workmen’s compensation cases. Dunn, Mississippi Workmen’s Compensation, § 284 (1967).

As the factfinder in all workmen’s compensation cases, the commission has the authority not to accept any or all fact findings of its “facility”, the AJ. In United Funeral Homes, Inc. v. Culliver, 240 Miss. 878, 128 So.2d 579 (1961), we made it clear that as long as the commission’s decisions were based upon substantial evidence, that decision would be upheld upon appeal in spite of the fact that the administrative judge’s decision was also supported by substantial evidence. This role of the commission as the trier of fact was further emphasized in Moon v. Erwin Mills, Inc., 244 Miss. 573, 145 So.2d 465 (1962).

The respective roles of the commission and the AJ derive from the fact that jurisdiction in workmen’s compensation cases is vested statutorily in the commission itself. Everitt v. Lovitt, 192 So.2d 422 (Miss.1966). It is in light of this fundamental notion that the holdings of this Court in Marlboro Shirt Company v. Whittington, 195 So.2d 920 (Miss.1967), and Day Detectives, Inc. v. Savell, 291 So.2d 716 (1974), must be viewed. We held in those cases that the requirement for a filing of a petition for review with the commission within 20 days of the issuance of the order by the attorney-referee was jurisdictional in nature.

In its order asserting its lack of jurisdiction to review the administrative judge’s findings, the commission has clearly misconceived the nature of its own jurisdiction. Apparently the commission perceives jurisdiction as passing back and forth between itself and the administrative judge. Such is not the case. From the moment of the filing of a workmen’s compensation claim, jurisdiction is vested totally, completely, and exclusively in the Workmen’s Compensation Commission itself. As previously noted, the role of the administrative judge is merely a “facility” of the commission. As such, jurisdiction cannot “pass back and forth” within a single entity.

The commission’s order indicates its opinion that the relationship between the administrative judge and the commission itself is analogous to the relationship between a trial court and an appellate level court. This analogy is clearly unfounded.

§ 284. Review by Commission. — The Commission on review is not technically a court of appeal, but is basically the original fact-finding agency and while its consideration is usually upon the record as made before the referee, it reviews the evidence as well as the law.

Dunn, Mississippi Workmen’s Compensation, § 284, (1967).

See also 73 C.J.S. Public Administrative Bodies and Procedure, § 159 at 499-501.

Upon the record before us, we conclude that jurisdiction was vested in the Commission upon Mrs. Cummings’ filing her original two motions to controvert. Jurisdiction remained vested in the commission throughout the hearings conducted by the AJ, and through the time when he issued his order. In filing its petition for review of the first order, the employer was diligently seeking to maintain and preserve its rights vis a vis the claimant. In joining with the claimant in the motion to remand for further hearing, the employer was adhering to the language this Court used in Day Detectives, Inc. v. Savell, supra:

Informal proceedings are encouraged in workmen’s compensation cases and are so designed that the commission can best ascertain the rights of the parties and prevent unnecessary delays, costly appeals, rehearings, etc.

291 So.2d at 721.

The wording of the motion clearly contemplates that there will be at least one appeal in the case: “That a remand at this time will promote judicial economy and efficiency and will avoid the necessity of two separate appeals in this case.” (Emphasis added). Unfortunately, but not controlling, the remand order failed to track precisely with the parties’ joint motion for remand. Clearly the motion, by its language, contemplated that the AJ would merely make additional findings, but did not purport to make final his prior findings and award. The language of the order read somewhat differently from the motion, to the effect that the AJ, on remand, would be “resolving all disputed matters . .. . ” It would be grossly unfair to allow such an order to cut off the employer’s already-vested right for review of the AJ’s first order.

The issue focuses upon the function and purpose of the 20-day filing requirement set forth in Mississippi Code Annotated § 71-3-47 (1972). The purpose of the 20-day filing requirement is to provide a specific, reasonable timeframe after which decisions of an administrative judge become final. Filing a petition for review with the commission itself, serves to put the commission on notice that the findings of the referee are going to be contested. In the instant case, the employer’s filing of its petition subsequent to the administrative judge’s first order served to prevent that order from becoming final and precluded the commission’s jurisdiction in the matter from divesting. The commission was clearly on notice that the issues which had been raised and the facts which had been decided as set forth in that first order were disputed by the employer. Nothing is contained in the second order which would in any way alter, change, or modify (1) the fact that Mrs. Cummings was injured, (2) the fact that this injury caused either temporary or permanent disability, (3) the existence of a pre-existing injury as a contributing factor, or (4) the employer’s responsibility for the medical expenses accruing from Dr. Moore’s treatment of Mrs. Cummings. The AJ’s second order was specifically limited in its holding to only two issues: (1) whether Mrs. Cummings had attained maximum medical recovery, and (2) did the injury result in permanent disability and, if so, to what extent. Both of these issues merely concern the degree of injuries involved, and do not relate to the fundamental issues addressed by the first order. As stated in Commissioner Hill’s dissent as to the commission’s order, the purpose of the remand was simply to avoid the necessity of two reviews or appeals and the second order of the administrative judge did not supersede the first order, but was merely an addition to the first. In his dissent, Commissioner Hill also cogently noted that: “Neither party filed a Motion to Dismiss the Petitions for review previously filed, nor did the commission take action to divest itself of jurisdiction over the matters raised in the Petitions for review.”

The timely filing of a petition for review subsequent to the August 29, 1980 order issued by the AJ was sufficient for the purposes of retaining jurisdiction in the commission. Following entry of the August 29,1980 order, the employer did everything necessary to obtain review of the order pursuant to § 71-3-47, supra. We have examined both the joint motion to remand and the subsequent December 12, 1980 order of the AJ. The language in both these items reflect the clear intent of the litigants and the AJ that the December 12, 1980 order was intended to be a supplemental order and was not intended to supersede, nullify or vacate the August 29 order. The order of remand held in abeyance the petition for review of the AJ’s first order, but did not render it as being less than viable. Accordingly, we must reverse and remand. The appellant, in its briefs and at oral argument, has steadfastly maintained that it does not contest any of the findings made by the AJ in his second order. In view of this concession, we direct that upon remand the commission will determine the issues raised by the employer’s petition for review of the AJ’s order dated August 29, 1980, wherein findings and an award were set forth.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: WALKER, Presiding Justice,

text:
    Melissa HICKS v. STATE of Mississippi.
    No. 52878.
    Supreme Court of Mississippi.
    Sept. 8, 1982.
    Christopher A. Tabb, Brandon, for appellant.
    Bill Allain, Atty. Gen., by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, HAWKINS and DAN M. LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Rankin County, Mississippi, wherein the appellant, Melissa Hicks, was convicted of armed robbery and sentenced to serve a term of twenty-seven years in the custody of the Mississippi Department of Corrections.

On February 26, 1980, Giordano’s Super-ette in Pearl, Rankin County, Mississippi, was robbed by two black women. Mrs. Giordano was operating the superette at the time of the armed robbery. She testified that during the robbery the one whom she later identified as Melissa Hicks observed a gun under the counter and told her accomplice (Ruth McNeal) to shoot Mrs. Giordano. McNeal shot Mrs. Giordano in the jaw with a .25 automatic pistol. Approximately $300.00 was stolen from the cash register as Mrs. Giordano lay bleeding on the floor. Mrs. Giordano was partially paralyzed as a result of the wound.

Ruth McNeal and Melissa Hicks were tried together in Rankin County Circuit Court for armed robbery. Each defendant was represented by separate counsel but neither party made a motion for severance before trial Both defendants were convicted and McNeal received life imprisonment, while Hicks received a sentence of twenty-seven years.

Melissa Hicks raises two issues for the Court’s review on appeal:

The court erred in not granting the appellant a severance from the joint trial with her co-defendant, Ruth McNeal.

Mississippi Code Annotated section 99-15-47 (1972) states:

Any of several persons jointly indicted for a felony may be tried separately on making application therefor before the order for a special venire in capital cases and before arraignment in other cases. (Emphasis added).

This Court held in Price v. State, 336 So.2d 1311 (Miss.1976) that “may” in section 99-15-47 “should be given its ordinary meaning, and whether a severance should be granted is addressed to the sound discretion of the trial judge.” Id. at 1312. See also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

A trial court’s ruling denying a motion for a severance will not be disturbed unless there is a positive showing of an abuse of discretion. In this case, the record indicates that there was no motion for severance before trial and it is clear from the testimony of Melissa Hicks’ attorney, who was placed on the witness stand by the State, that he had knowledge of the potential conflict of interest between the co-defendants, Hicks and McNeal, before trial. Evidently, the attorney for appellant elected to have Hicks and McNeal tried together as part of his trial strategy.

We are of the opinion the trial court did not abuse its discretion in denying the motion for severance during the middle of the trial.

The remaining assignment of error is not supported by authority and is without merit. For the above stated reasons, this cause is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . Ruth McNeal’s conviction and life sentence was affirmed by this Court on October 14, 1981. McNeal v. State, 405 So.2d 90 (Miss.1981).


author: SHORES, Justice.

text:
    James Robert REEVES, Jr. v. STATE of Alabama.
    81-282.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    M. A. Marsal and George L. Simons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   SHORES, Justice.

The defendant, James Robert Reeves, Jr., a juvenile, appeals from an order transferring his case from the juvenile division to the criminal division of Mobile County Circuit Court. He contends that the order of the juvenile division does not comply with Ala.Code 1975, § 12-15-34. We reverse and remand.

On November 3, 1981, the state filed a motion with the juvenile division to transfer Reeves to the criminal division to be tried as an adult on a charge of murder. On December 8, 1981, after a hearing, the juvenile division issued an order to transfer. Reeves perfected his appeal of that order to this Court on December 17,1981. The juvenile division issued an order on January 15, 1982, amending nunc pro tunc the order of December 8, 1981. Reeves attacks the validity of both orders.

Section 12-15-34(d), Ala.Code 1975, requires a juvenile court to consider evidence of six specific (and other relevant) factors in determining whether a transfer motion should be granted. The statute mandates that the court order reflect consideration of those specific factors, and “set forth the basis for the order with sufficient specificity to permit meaningful review.” Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Those factors which the court must consider are:

“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interest of the community and of the child requiring that the child be placed under legal restraint or discipline. [§ 12-15-34(d), Code of 1975.]”

In the present case, the order of the juvenile division, dated December 8, 1981, does not meet the standards set out in § 12-15-34. That order reads as follows:

“In the Matter of JAMES ROBERT REEVES, “Case No: JU-81-803.01.
“The child, James Robert Reeves, a white male, age 16 at the time of the alleged offense, being charged with Murder, which said offense would constitute a felony if committed by an adult. Notice of said hearing being given to the child who was detained for one day at the Mobile County Youth Center, and the child appearing in Court with his parents, and his Attorney, Mr. M. A. Marsal; the Assistant District Attorney, Mr. A1 Pennington, present for the prosecution, and the Assistant District Attorney, having complied with all preliminary motions and investigations, and both parties announcing ready for the hearing on the Motion to Transfer for Criminal Prosecution, and the Court hearing the complaint, and witnesses presented by both attorneys; investigation of the case, and the child’s background as follows:
“The Court does find there is probable cause as to the allegation of Murder, and does further find that the boy cannot be properly disciplined under the Juvenile Court statutes of this state, and the Court, having arrived at this decision based on the facts and other aspects, does therefore direct that, under the terms of Section 12-15-34(e), Title 12, Code of Alabama, said child be and hereby is transferred to the Circuit Court, Mobile County, Alabama, there to be tried according to law.
“The Court does further fix a bond in the amount of $15,000.00 and pending the making of this bond, does direct that this child, James Robert Reeves, shall be transferred to the Mobile County Jail, pending a disposition of this case by the Circuit Court of Mobile County, Alabama, through trial or other order, pending further order of Court.
“Done this 8th day of December, 1981.”

There is no statement or finding in this order of the trial court to show that it considered those specific factors in § 12-15-34(d). We have previously held that a transfer order containing a restatement of the factors set out in the statute, and thereby indicating that each was considered by the court, is valid. Brown v. State, 353 So.2d 1384 (Ala.1977). Here, however, there is no such recitation. Thus, it falls short of the statutory requirements. Although it notes that the charge is a serious crime and expresses the opinion that the defendant cannot be properly disciplined in the juvenile system, the statute requires that it go further and consider the other factors enumerated. The nature of the crime and the child’s response to any treatment or discipline efforts are but two of the six mandatory factors to be considered in granting a transfer order. The legislation compels consideration of each of the six factors and that the transfer order reflect consideration thereof. McKinney v. State, 404 So.2d 639 (Ala.1981); Young v. State, 387 So.2d 825 (Ala.1980). For an example of a transfer order which comports with the statutory mandate, see Gulledge v. State [MS. August 27, 1982], 419 So.2d 219 (Ala.1982); Mayne v. State, 416 So.2d 741 (Ala.1982); and Bragg v. State, 416 So.2d 715 (Ala.1982).

Reeves also attacks the validity of the order nunc pro tunc of January 15, 1982. The trial court attempted to amend its original transfer order with an order nunc pro tunc, which addressed each of the six required factors found in § 12-15-34(d). Reeves contends that the amended order of January 15 is invalid on the grounds that: (1) The trial court cannot cure judicial error by amending its order nunc pro tunc; and (2) the trial court no longer had jurisdiction over the original transfer order once Reeves had perfected his appeal to this Court. Either of these grounds, alone, is sufficient to invalidate the order.

Clearly, consideration of the six statutory factors in its original transfer order is a judicial function and not a clerical one. As such, an amendment nunc pro tunc is impermissible to remedy the defect. Alabama Hide and Tallow Company v. Pincheon, 282 Ala. 404, 211 So.2d 896 (1968).

Secondly, after an appeal is taken, the trial court may proceed only in matters “which are entirely collateral to that part of the case which is taken up (by the appeal) but it can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.” Osborn v. Riley, 331 So.2d 268, 271 (Ala.1976), quoting from Barran v. Roden, 263 Ala. 305, 82 So.2d 398 (1955).

For the reasons stated, we reverse and remand for a new hearing on the state’s motion to transfer.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Sherry Ann GULLEDGE v. STATE of Alabama.
    81-373.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Wilford J. Lane, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   TORBERT, Chief Justice.

Defendant, Sherry Ann Gulledge, age 17, was charged with the murder of Sarah Hannah. Pursuant to Code 1975, § 12-15-34, a motion was filed by the district attorney to transfer Gulledge to the circuit court for prosecution as an adult. After a hearing upon the motion to transfer, an order was entered transferring Gulledge to the Circuit Court of Calhoun County. The defendant appealed from that order. For the reasons set out herein, we affirm.

On September 2, 1981, the body of Sarah Hannah was discovered in her home at Oxford, Alabama. The cause of death was determined to have been blunt force trauma to the head.

The State presented evidence that the defendant and a companion were present in the yard and porch, and at the dinner table, of the decedent, with her consent, approximately four days prior to the decedent’s death. The State, over defendant’s objection, presented evidence that the decedent had picked up defendant and her companion while they were hitchhiking approximately two weeks before decedent’s death.

A witness for the State testified that defendant and her companion were seen in the parking lot of a grocery store near the decedent’s home on the afternoon prior to her death. Over defendant’s objection as to hearsay, the State was permitted to show that the defendant and her companion were seen in Midwest City, Oklahoma, in possession of a vehicle which fit the description of a vehicle belonging to the decedent. The State, over defendant’s objection, was allowed to present evidence that a television set allegedly taken from the decedent’s home was recovered from an apartment in Oklahoma where defendant and her companion had stayed.

Pursuant to Code 1975, § 12-15-34(f), the Court set forth its reasons for granting the motion to transfer, including a finding of probable cause to believe the allegations against the defendant were true and correct.

Appellant argues that evidence establishing that decedent had picked up Gulledge and her companion hitchhiking and that Gulledge was in possession of a vehicle and a television set belonging to decedent was improper hearsay and should not have been admitted to show probable cause.

The first issue presented on appeal is whether in a hearing on a motion to transfer the juvenile from juvenile court to the circuit court for criminal prosecution hearsay evidence is admissible to show probable cause that the juvenile committed the criminal act in question.

A hearing on a motion to transfer has been held to be properly classified as a probable cause hearing. Duncan v. State, 394 So.2d 930 (Ala.1981); Terrell v. State, 379 So.2d 1238 (Ala.1980); Winstead v. State, 371 So.2d 418 (Ala.1979); Williams v. State, 361 So.2d 1157 (Ala.1978); Brown v. State, 353 So.2d 1384 (Ala.1978). Such a hearing is not designed to determine the guilt or innocence of the juvenile, but is, instead, a hearing to determine whether the juvenile should be transferred from juvenile court for prosecution as an adult. Brown, 353 So.2d at 1388. It has been established that the strict rules of evidence do not apply in probable cause hearings. This Court in Winstead v. State, 371 So.2d 418 (Ala.1979), held that a voluntary confession of a defendant is admissible in a transfer proceeding even though no attorney was present at the time the confession was made. In Vincent v. State, 349 So.2d 1145 (Ala.1977), this Court determined that the uncorroborated testimony of an accomplice was sufficient basis for finding probable cause. In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the uncorroborated testimony of an accomplice was held to be admissible in a probation revocation hearing, even though it would not have been admissible in a criminal trial.

Since a transfer hearing does not determine the guilt or innocence of the juvenile, latitude is permitted in admitting evidence which would be otherwise inadmissible in a criminal prosecution. Winstead, 371 So.2d at 420. We hold that the evidence in question was properly considered by the trial judge in the hearing on the motion to transfer.

Appellant next asserts error in the trial judge’s consideration of the factors set forth in Code 1975, § 12-15-34(d). The trial court can grant a motion to transfer only after considering the six factors listed in § 12-15-34(d) and finding that probable cause exists to believe that the allegations are true. Duncan, 394 So.2d at 932. The factors set forth in § 12-15-34(d) are:

“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency record;
“(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.”

The trial court’s order read as follows:

“This matter came before the Court for hearing on a Motion to Transfer, filed pursuant to 12-15-34 of the Code of Alabama, 1975, by the Honorable Catherine S. Roberts, Assistant District Attorney. The child was present in Court with her appointed attorney, the Honorable Wilford Lane. Also present was the Honorable Joe Hubbard, Assistant District Attorney, and Nancy Hathorn, Juvenile Probation Officer assigned to this case. The Court received testimony and the probation officer’s report filed pursuant to 12-15-34(e), and considering the testimony, the probation officer’s report and all aspects as required to be considered under such motion under 12-15-34(d), finds as follows:
“1. That probable cause exists that the offense of murder as charged was committed and that said child committed said offense.
“2. That said child at the time the alleged offense occurred was over 14 years of age and the act she was alleged to have committed would be a felony had she been an adult.
“3. That said child is married.
“4. That said child is 17 years of age and of small stature but appears to be physically mature.
“5. That said child appears to have no past record in this or any other Court.
“The Court considering the above findings of fact, the interest of the community, the child herein, the nature of the present alleged offense, and the child’s physical and mental maturity,
“It is therefore ORDERED, ADJUDGED AND DECREED that the said Sherry Ann Gulledge be and is transferred to the Circuit Court of Calhoun County for criminal prosecution as an adult and is bound over to the grand jury for further investigation. No bond is set by the Court due to insufficient evidence being presented at the transfer hearing on which to base a bond amount.”

Appellant asserts that no evidence as to the child’s reputation in the community, her ability to respond to treatment, her education, intelligence, or school record was offered by the probation officer or considered by the trial court.

The United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), held that a hearing must be held before a transfer is permitted. The Court explained its decision: “[W]e hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met.... ” 383 U.S. at 561, 86 S.Ct. at 1057.

This Court has held that a transfer order containing a mere recitation of the factors set out in § 12-15-34(d) is valid under the standards established by Kent if the evidence adduced at the hearing, measured against the standards set by § 12-15-34(d), provides a meaningful review of the sufficiency of the transfer order. Brown, 353 So.2d at 1388. However, the trial court’s ruling may be found erroneous if the order issued does not state that the court has considered the six factors set out in § 12-15-34(d). Bragg v. State, 416 So.2d 715 (Ala.1982). The order in the case sub judice states that the court has considered the statutory factors.

The court in the present case appears to have made specific, although not detailed, findings regarding each of the statutory factors. This Court has upheld a transfer order even though the order failed to specifically enumerate the six factors, so long as the circuit court stated that it had considered the factors under § 12-15-34(d). Mayne v. State, 416 So.2d 741 (Ala.1982). The transfer order in Reeves v. State, 419 So.2d 217 (Ala.1982), is distinguishable. In Reeves, the order merely noted that the charge was a serious crime and expressed the opinion that the defendant could not be properly treated or disciplined in the juvenile system. The order did not indicate that the court had considered the statutory factors. In reversing the transfer order, this Court found that the lower court had considered only two of the six factors.

The court in the case before us set forth its findings and indicated that it had considered the probation officer’s report and the statutory factors. We find that the record and the order of the trial court correctly reflect a consideration of the six factors set out in § 12-15-34(d).

As this Court pointed out in Brown, “It is axiomatic that on appeal to this court there will be a review of the record.” 353 So.2d at 1388. Reversal of the lower court’s findings is precluded unless those findings are clearly erroneous. Brown v. State, 353 So.2d at 1388.

After a review of the record, we are unable to say that the trial court erred in any respect under Code 1975, § 12-15-34, in ordering Gujledge transferred for criminal prosecution.

AFFIRMED.

JONES, SHORES, BEATTY and ADAMS, JJL concur.

      . This appeal was taken prior to the March 1, 1982, amendment to Rule 28, Rules of Juvenile Procedure.


author: SHORES, Justice. BEATTY, Justice

text:
    Ex Parte Cecil STARR. (In re Chuck DEUPREE, Skip Deupree, and James L. Deupree d/b/a 3-D Farms v. Cecil STARR).
    81-726.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      W. Larry Ray of Whittelsey, Ray & Tip-ton, Opelika, for petitioner.
    Donald W. Lang and Michael A. Givens, Sylacauga, for respondent.
   SHORES, Justice.

The trial court denied the petitioner’s request for change of venue on the ground that his motion was not timely. He then filed this petition for writ of mandamus, asking this Court to require the trial court to grant his motion for change of venue. We deny the petition.

The following account of the case is helpful:

DATE ACTION
November 14,1980 Summons and complaint filed against petitioner, alleging misrepresentation in the sale of cattle by him to the plaintiffs. The complaint sought damages in the amount of $100,000.
November 17,1980 Summons and complaint served on defendant.
January 11,1981 Default judgment entered against the defendant for $70,000.
March 12,1981 Civil execution issued.
April 1,1981 Defendant’s motion for relief from judg-
May 22,1981 Hearing on defendant’s motion for relief from judgment.
July 20,1981 Order granting motion and setting aside default judgment.
July 24,1981 Petition for writ of mandamus by plaintiffs to rescind the order granting defendant’s motion.
August 17,1981 Order of the Supreme Court denying plaintiffs’ petition for writ of manda-
August 28,1981 Defendant’s motion to dismiss or transfer to Lee County filed.
April 15,1982 Hearing on defendant’s motion to dismiss or to transfer to Lee County.
April 15,1982 Order denying defendant’s motion to dismiss or to transfer to Lee County.

The first time the defendant raised the venue issue came some nine months after the complaint was filed. This is not a timely objection under Alabama Rules of Civil Procedure, Rule 82.

The defendant’s first pleading in the case was filed only after the plaintiffs had taken a default judgment. He alleged that his failure to file an answer was due to inadvertence or mistake. He did not deny having been served with a copy of the summons and complaint. He did not raise venue at that time and did so for the first time after this Court refused to order reinstatement of the default judgment.

He argues that his motion to dismiss under Rule 12(b)(3), Alabama Rules of Civil Procedure, which recognizes improper venue as a good defense, was his first responsive pleading in this litigation and was, therefore, timely. We disagree. The Alabama Rules of Civil Procedure were designed to secure the just, speedy, and inexpensive determination of every civil case. This petitioner seeks extraordinary relief by way of mandamus after having failed to file an answer to a lawsuit admittedly served on him. He has put the plaintiffs to considerable expense, both in terms of time and money, and has sought and received relief from a default judgment. Only after the plaintiffs failed in this Court to have the judgment reinstated did he raise the venue issue. Under these facts, we hold that his objection to venue comes too late.

The petition is denied.

WRIT DENIED.

MADDOX, FAULKNER and JONES, JJ., concur.

BEATTY, J., concurs specially.

BEATTY, Justice

(concurring specially):

The majority opinion holds that the defendant’s venue motion was untimely under Rule 82, even though the motion was filed shortly after the reopened action was allowed to proceed by this court. The implication is that such an action can only be defended on the grounds pleaded in the motion to reopen. It is true that under Rule 60(b) a meritorious defense must generally be alleged in the motion to obtain relief from a judgment. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). However, it does not follow that whenever a judgment is sought to be reopened, venue or other defenses must be pleaded in the motion for that relief. Such an approach does not take into consideration that: (a) pleadings may normally be amended under Rule 15 subject to the discretion of the trial court; (b) in the case of reopening void judgments, no meritorious defense need be alleged, Raine; (c) in this case venue is not a defense justifying relief from judgment.

Moreover, nothing in Rule 82 makes the venue motion untimely. Instead, the proper basis for decision is that under these circumstances the petitioner’s delay is in the nature of laches (this appears to be the basis for the last paragraph of the majority opinion). The petitioner could have raised the venue issue at an earlier stage (even if not required under the Rules) and failure to do so increased expense and delay. The trial court therefore had discretion in light of Rule 1(c) to deny a change in venue on this ground.

      . The amended version of Rule 82, effective March 1, 1982, and thus not applicable here, defines what is timely but does not address the situation presented here.

      . The Rule reads as follows: “These rules shall be construed to secure the just, speedy and inexpensive determination of every action.”


author: BRADLEY, Judge.

text:
    Havard J. RICHBURG v. Annie GOLPHIN.
    Civ. 3055.
    Court of Civil Appeals of Alabama.
    April 21, 1982.
    Rehearing Denied May 19, 1982.
    Certiorari Denied, Sept. 24, 1982 Alabama Supreme Court 81-735.

      Thomas M. Goggans of Piel, Goggans & Mclnnish, Montgomery, for appellant.
    Charles J. Kettler, Jr., Luverne, for ap-pellee.
   BRADLEY, Judge.

This is a trespass case.

The present case arose from a suit filed by Annie Golphin in the Circuit Court of Crenshaw County alleging trespass to land and the removal and destruction of personal property. The defendant, Havard Rich-burg, is Golphin’s cousin. He claimed title to the property in question.

It appears from the record that a forty acre tract of land was owned by Jeff and Alabama Richburg. Legal title to the property was held by Alabama Richburg, who died intestate in 1939. In 1943 Jeff Rich-burg conveyed by warranty deed one and one-half acres of the forty acre tract to Annie Golphin. She promptly recorded this deed.

Jeff Richburg and Annie’s husband, James Golphin, went out to view the property. Jeff took metal stakes and marked off the corners of the property. Annie immediately began construction of a six room home on the property. She moved into the home in 1944.

In 1948 Annie moved with her husband and children to Georgia. Before she left, she told a friend, Lawrence Perkins, that he could live in the house if he would take care of it. Perkins moved into the house and lived there for several years. Although the evidence is in dispute, Havard Richburg stated that Perkins lived in the house until 1955.

In 1953 Havard Richburg purchased thirty-six and one-half acres of the forty acre tract at a public auction. The two remaining acres had been sold to a third party. Havard claimed that his thirty-six and one-half acres included the one and one-half acres to which Annie claimed title.

In 1956 Havard filed an ejectment action against Annie Golphin. In 1964 a judgment was entered in favor of Annie Golphin. The record of this proceeding does not show the reason for this judgment.

In the present case Annie Golphin testified that even though she left her home in 1948, she always intended to return. Further she stated that she usually visited Alabama once or twice a year during the time she lived in Georgia. She also testified that she had spent some nights in her house during these visits. It is undisputed that she has paid the taxes on this property continuously since 1943.

Annie also stated that she left numerous items of personal property on her land when she left. All this personalty is now gone. Also there is no trace of her house or well. She further stated that her house was standing within the last five years.

Another witness testified that she saw Havard Richburg removing planks from the house. Havard denied that he had taken any of Annie’s personal property and denied that he dismantled the house. He stated that the house rotted away. He did admit to removing bricks from the fireplace after the house rotted down. Havard has now planted a garden where the house stood.

Morris Tate, a surveyor, testified that based on his survey of the property Havard Richburg’s thirty-six and one-half acres included the property to which Annie claimed title. However, we note that Tate based his opinion on an old survey, and he did not conduct a new survey to establish the corners of the tract.

An attorney testified that Annie’s deed did not convey to her legal title although it was sufficient to give her color of title. Further he stated that the property description on Havard’s deed included the one and one-half acres to which Annie claimed title.

Elizabeth Lizenby, the tax assessor, testified that Annie Golphin had paid the taxes on her one and one-half acres. Further she stated that Havard Richburg paid taxes on his thirty-six and one-half acres. She stated that there was no overlap in these assessments according to her records.

A jury trial was held on the issues of this case. The jury returned a verdict in favor of Annie Golphin and assessed damages at $4,000.00. Havard filed a motion for j.n.o.v. on September 15, 1981. This motion was denied on October 15, 1981. From this denial Havard timely appealed to this court.

The only issue on appeal is whether the trial court properly denied Havard’s motion for j.n.o.v. A motion for j.n.o.v. shall not be granted if there is any conflict in the evidence for the jury to resolve. M. C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala.Civ.App.), cert. denied, 386 So.2d 450 (Ala.1980). Considering the conflict in the evidence, we find that the trial court properly overruled the motion for j.n.o.v.

Havard argues that Annie had no right to maintain a trespass action since she never had legal title to the property. Further he argues that she was not in actual or constructive possession at the time she instituted this trespass action. We cannot agree.

Although it is apparent that Jeff Richburg did not have legal title to convey to Annie, there is evidence to support a finding that she had acquired title by adverse possession. Section 6-5-200, Code 1975, provides that a party can gain title by adverse possession when he can show a deed or other color of title that has been recorded for ten years; he has listed the land for taxation for at least ten years; he derives his title by descent cast or devise from his predecessor in title who was in possession. It is necessary that only one of these alternatives be shown. M. C. Dixon Lumber Co. v. Mathison, 289 Ala. 229, 266 So.2d 841 (1972).

The evidence in this case could certainly support a conclusion that Annie met all three of these alternatives. Her deed was recorded in 1943; she has continuously paid the taxes; she derived her title from Jeff Richburg who was in possession and who claimed title at least by descent from Alabama Richburg.

Havard, however, contends that his deed to the thirty-six and one-half acres included this one and one-half acres and gave him legal title to the property. There was evidence upon which the jury could have based its conclusion that Havard’s deed did not include this one and one-half acre parcel. The original tract was forty acres. Two acres were owned by another party. Annie claims title to one and one-half acres. This leaves thirty-six and one-half acres which the jury could have concluded was the property owned by Havard.

Further, Havard cannot contend that he was a good faith purchaser without notice so as to protect him from Annie’s claim. Clearly when he purchased his property he knew that Annie claimed an interest. He stated that Lawrence Perkins was living on Annie’s property when he made his purchase. Further, Annie’s house was visible and open and would be sufficient notice of a prior claim, as well as the fact that she had recorded her deed. Therefore the jury could certainly conclude that he was not a bona fide purchaser without notice. See Orso v. Cater, 272 Ala. 657, 133 So.2d 864 (1961).

Havard contends in the alternative that even though he might not have legal title through his deed, he does have title through adverse possession. We have previously discussed the elements of statutory adverse possession and find that the evidence supports a jury finding that Havard had not met these requirements.

The only other method by which Havard could have acquired title is by prescription. To claim by prescription, Havard would have to have had open, notorious, and hostile possession of the property for a period of twenty years. The evidence is in dispute as to how long Havard openly possessed the property. His garden has been on the property only the last few years. There is enough evidence for the jury to conclude that Havard had not adversely possessed the property for twenty years.

Havard finally argues that Annie could not maintain an action for trespass because she was not in actual or constructive possession of the property. Constructive possession of land resulting from legal title is sufficient to support an action of trespass to land when the person committing the trespass is not in adverse possession. Frost v. Johnson, 256 Ala. 383, 54 So.2d 897 (1951). Clearly, there is evidence to support a finding that Annie was in constructive possession of the property.

In the present case there was a great conflict in the evidence as to who had legal title to the property in question and as to whether Annie had actual or constructive possession of the property. The jury resolved this conflict in favor of Annie. Considering the conflict in the evidence, the trial court did not err in denying Havard’s motion for j.n.o.v.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.