text:
    Lenzie ALLISON a/k/a Lindsey Allison, Appellant, v. STATE of Mississippi, Appellee.
    Misc. No. 1529.
    Supreme Court of Mississippi.
    Aug. 17, 1983.

      Cullen C. Taylor, Brandon, for appellant.
   ROBERTSON, Justice,

for the Court.

The world is much with today’s lawyer. His overhead is ever soaring. Litigation is becoming increasingly complex. These developments juxtaposed against the need to provide adequately for one’s self and one’s family have placed his traditional role in a great tension. Uncooperative and unattractive clients are viewed by some as no more than necessary evils. The romance has gone out of the practice of law.

Still, there are obligations a lawyer may not shirk no matter how inconvenient he may find them. As much as ever, today’s lawyer shoulders dual and sometimes conflicting responsibilities of fidelity and service to his clients and to the court. Lawyers differ on the ever present controversy which of these has priority over the other. One thing is certain: both outrank the lawyer’s personal whim or convenience.

We are confronted here with a lawyer who has without apology defaulted in his obligation to this Court. His explanation, if it may be called such: an uncooperative client, a steadfast determination not to work without fee, and personal inconvenience. Our Rule 40 provides that

“An attorney who perfects an appeal to this Court on behalf of the appellant shall continue to prosecute the appeal by filing an assignment of errors and brief when due, unless the Court permits such attorney to withdraw from the case.”

Cullen C. Taylor, attorney at law, of Brandon, Mississippi, perfected an appeal on behalf of Lenzie Allison. Mr. Taylor entered his appearance in this Court for all purposes. He then proceeded to do nothing. Without filing a motion for leave to withdraw, a by your leave or whatever, Mr. Taylor has defaulted in his obligations under Rule 40. He is in contempt of this Court.

II.

In May of 1982 Lenzie Allison was put to trial in the Circuit Court of Rankin County, Mississippi, on a charge of manslaughter. Prior thereto Taylor had been engaged to serve as defense counsel. Taylor did in fact represent Allison at his trial which resulted in a manslaughter conviction on May 20, 1982. Allison was given a 20 year sentence.

Thereafter, Taylor, acting as counsel for Allison, took the necessary steps to perfect an appeal to this Court. By virtue thereof, Taylor assumed the duty under Rule 40 to prosecute the appeal. We emphasize that this was not merely a duty to his client, Allison; but equally and independently a duty Taylor owed to this Court.

From the papers Taylor has filed with this Court we accept as true Taylor’s version of what happened thereafter. Taylor advised Allison that he was perfecting the appeal in order to assure that this right was not lost to Allison. Before he would actually prosecute the appeal, however, an acceptable fee arrangement would have to be made.

In due course, Taylor advised Allison that his fee for handling the appeal would be $3,000. Allison did not respond. On November 18, 1982, Taylor wrote Allison and advised him that the transcript had been prepared. He reiterated that his fee would be $3,000. He told Allison that, if he wished to employ another lawyer, he (Taylor) would be happy to turn over his file to the new attorney. Taylor emphasized to Allison that he needed to act immediately.

Again, on December 1,1982, Taylor wrote to Allison emphasizing that it was imperative that Allison employ someone to prosecute the appeal.

It may be fairly said that Taylor discharged his duties to his client, Lenzie Allison. Without charge and because the time was short, he perfected the appeal. He arranged for. the preparation of the transcript and the trial record. He advised Allison what his fee would be for handling the appeal and assured Allison that he was free to select other counsel if he so desired. Taylor has wholly defaulted, however, in his obligations to this Court.

Our Rule 40 was originally adopted on October 21, 1968. It was amended on July 28, 1975 and has been in its present form since that time. Without equivocation, it requires that an attorney who perfects an appeal shall continue to prosecute the appeal unless permitted by the Court to withdraw from the case. The rule then provides that:

“If an attorney desires to withdraw from a case, he may file a motion giving his reasons for desiring to withdraw and requesting approval of this Court.”

Taylor was certainly within his prerogatives in advising Allison that an acceptable fee arrangement would have to be reached regarding the appeal. When it became apparent that no such agreement was possible, Rule 40 made clear to Taylor what he ought to do. Had he filed a motion for leave to withdraw setting forth the facts and circumstances Taylor now presents to us, the Court most likely would have allowed withdrawal.

We reiterate that the appeal was perfected on or about May 28, 1982. One year later, Taylor had done nothing further. On June 1, 1983, this Court entered the following order:

“Cullen C. Taylor, Esq. is hereby ordered within thirty days of the date hereof to show cause, if any he can, why he should not be held in contempt of Court for failure to prosecute the appeal of Lenzie Allison, a/k/a Lindsey Allison to its final disposition or seek relief from this Court from his obligation so to do, and to that end, the said Cullen C. Taylor shall, within thirty days of this date, make such written response as may be appropriate under the circumstances.”

Taylor filed his response on June 30, 1983. What is remarkable about this response is that it contains no acknowledgment whatsoever of Taylor’s obligations under Rule 40. No excuse whatsoever is offered why Taylor failed to file a Motion for Leave to Withdraw. Taylor does explain that Allison would not pay the $3,000 fee quoted. What Taylor fails to acknowledge, however, is that it is for the Court to determine whether this is a valid reason for allowing him to drop the case. This is not a decision Taylor was entitled to make unilaterally.

Taylor has failed to discharge his obligations to this Court under Rule 40. He has specifically and willfully failed to file an Assignment of Errors and Brief within the time required by the rules of this Court. He has failed to offer any excuse, acceptable or otherwise, for such failure. We hold that Cullen C. Taylor, attorney at law, of Brandon, Mississippi, is in contempt of this Court.

Rule 40 provides that upon such a finding of contempt the attorney involved shall be

“subject to punishment by (1) censure, (2) fine (3) suspension from practice in this Court, depending upon the degree of neglect as determined by this Court”.

Under the circumstances of this case, the Court assesses a fine of $100.00. Taylor is ordered and directed within ten days of this date to pay such sum of $100.00 to the clerk of this Court.

III.

Several points bear emphasis.

First, nothing said here should deter attorneys from doing what Taylor did back in May of 1982. Because the time was short, he acted properly in taking the necessary steps to perfect Allison’s appeal to this Court. Nothing said here should give any attorney grounds for believing that, if he takes these procedural steps on behalf of his client, he will then be trapped into handling the entire appeal without fee. When good cause exists for allowing an attorney to withdraw from representation of a client before this Court, upon proper motion, such withdrawal will be allowed. To be sure, in many circumstances the failure of the client to pay a reasonable fee may be a good and valid reason for withdrawal.

Second, when an individual accepts a license to practice law and becomes a member of the bar of this state and of this Court, he assumes many obligations. At least two of these have priority over his certainly legitimate prerogative to charge a legitimate fee for his services. Along with his fellow members of the bar, each lawyer assumes a duty to assume that every person in substantial need of legal service receives that service without regard to ability to pay. Beyond that, each lawyer, in conjunction with his fellow members of the bar, assumes an obligation as an officer of the Court to assure that, before this Court makes the life shattering decisions tendered to it, it has the benefit of competent advocacy on behalf of both sides.

What we say here is a simple reiteration of the values and traditions of the legal profession. These premises are articulated in the ethical considerations underlying the canons in the Code of Professional Responsibility by which all lawyers are bound. There is no doubt that parts of that code relegate to third and fourth priority a consideration of the economics of the practice of law. This is merely a part of the quid pro quo the lawyer must be prepared to give when he accepts his license to practice law.

Yes, the world is much with today’s lawyer. But so are the ideals and traditions of professional responsibility within the Bar, and so are the Ethical Considerations underlying our Code of Professional Responsibility, with all of which we find the lawyer’s obligation under Rule 40 of the rules of this Court to be wholly consistent.

CULLEN C. TAYLOR IS FOUND GUILTY OF CONTEMPT OF THIS COURT AND IS FINED THE SUM OF ONE HUNDRED DOLLARS TO BE PAID IN TEN DAYS SUBJECT TO CONDITIONS STATED HEREINABOVE.

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

      . Allison’s appeal has been docketed here as Case No. 54,306, styled Allison v. State of Mississippi.

      . On June 1, 1983, this Court entered its order directing Taylor to show cause why he should not be cited for contempt. On June 30, 1983, Taylor filed a submission entitled Response To Show Cause Order, including many attachments. We have reviewed Taylor’s submission in its entirety. As indicated above, we accept completely Taylor’s version of the facts.

      . The record was formally filed with the clerk of this Court on October 27, 1982.

      . The brief for Appellant was due December 6, 1982.

      . Of considerable importance also is Disciplinary Rule 2-110[A][l] of the Code of Professional Responsibility of the Mississippi State Bar. D.R. 2 — 110[A][1] provides
      “If permission for withdrawal from employment is required by the rules of a Tribunal, a lawyer shall not withdraw from employment in a proceeding before that Tribunal without its permission.”
      The Ethical Considerations underlying D.R. 2-110[A][1] appear in EC 2-32
      “A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a Tribunal he must comply with the rules of the Tribunal regarding withdrawal.”

      . Disciplinary Rule 2-110[C][l][f] provides that a lawyer may ethically request permission to withdraw where his client “deliberately disregards an arrangement or obligation to the lawyer as to expenses or fees”.

      . Another order entered by this Court on June 1, 1983, provides:
      “Under these circumstances it is ORDERED:
      (a) That the appeal heretofore taken by Len-zie Allison, designated as Case No. 54,306 in this Court, is hereby reinstated and returned to the active docket of this Court;
      (b) That his case is temporarily remanded to the Circuit Court of Rankin County, Mississippi, which Court is directed to conduct such proceedings as may be appropriate to determine whether or not Allison is an indigent and, if so, whether he is entitled to appointment of counsel to represent him on this appeal;
      (c) Cullen C. Taylor, Esq., of Brandon, Mississippi, is hereby relieved of any further duties as counsel for Petitioner/Appellant;
      and
      (d) Within thirty days of the date of entry of an Order by the Circuit Court of Rankin County, Mississippi, adjudging Petitioner an indigent and appointing counsel to represent him, or determining that Petitioner is not an indigent or otherwise eligible for appointment of counsel, Petitioner/Appellant Allison shall file in this Court his Assignment of Errors, Brief of Appellant and Abstract of Record.

      .We have carefully considered the question of whether or not Taylor is entitled to a further hearing in this matter before we proceed with an adjudication. We note that Rule 40 provides:
      “Before the imposition of any such punishment, the attorney affected thereby shall be entitled to a hearing at such time, place and under such circumstances as the Court may direct.”
      If there were fact questions tendered, we would without hesitation order an evidentiary hearing. We note that Taylor was given thirty days within which to file a formal written response to the show cause order. This he has done, and he has attached numerous affidavits, letters and other exhibits. As indicated above, we accept completely the facts as submitted by Taylor. We hold, under the circumstances, that Taylor has had a full and fair opportunity to present his side of the case and that this Court is acting wholly consistent with Taylor’s procedural due process right by proceeding to a final adjudication at this time.

      .Withdrawal will not be automatically allowed. Such factors as the timing of the motion to withdraw, possible prejudice to the adverse party, the court’s and the public’s interest in the prompt disposition of the matter, and the like, will be relevant considerations. On the other hand, a timely motion to withdraw made for bona fide reasons will normally be looked upon with favor. We emphasize that motions for leave to withdraw will be considered against the backdrop of D.R. 2-110 of the Code of Professional Responsibility, as well as the formally published Ethical Considerations un-dergirding same.

      . See D.R. 2-110[C][l][f].

      . We commend to the bar a careful review of the canons of ethics regarding the charging of fees. See D.R. 2-106 and Ethical Considerations 2-17 — 2-19.

      . We emphasize here the following Ethical Considerations formally a part of the Code of Professional Responsibility of the Mississippi State Bar.
      “EC 1-1. A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.
      EC 2-5 ... The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, ... every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer.
      EC 2-31 ... Full availability of legal counsel requires both that persons be able to obtain competent counsel and that lawyers that undertake representation complete the work involved. Trial counsel for a convicted defendant should continue to represent his client by advising whether to take an appeal and, if the appeal is prosecuted, by representing him through the appeal unless new counsel is substituted or withdrawal is permitted by the appropriate court.


source: Caselaw Access Project

author: ROY NOBLE LEE, Justice,

license: Public Domain

text:
    Herschel BRICKELL v. UNITED STATES FIRE INSURANCE COMPANY.
    No. 53832.
    Supreme Court of Mississippi.
    Aug. 17, 1983.

      Downey & Brown, John H. Downey, Jackson, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Kenneth G. Perry, Jackson, for appellee.
    Before BROOM, ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the court:

Herschel Brickell filed suit in the Circuit Court of the First Judicial District, Hinds County, Mississippi, Honorable Charles Barber, presiding, seeking reimbursement under an insurance policy, for expenses incurred as a result of defending a suit against him for malicious prosecution. The case was heard by the trial judge without a jury. At the conclusion of the evidence, he entered judgment in favor of United States Fire Insurance Company [U.S. Fire] and dismissed the suit with prejudice. Brickell has appealed here, assigning the following errors in the trial below:

I. The trial court erred in failing to render judgment in favor of appellant and against appellee since, under the undisputed evidence, appellant was entitled to judgment as a matter of law.
II. The court erred in excluding evidence of certain costs of defense for which Brickell sought recovery on objection that Brickell had not actually “paid” or “incurred” these expenses personally. Brickell, president of Brickell Insurance

Agency, has been engaged in the insurance business for more than twenty-eight (28) years. That business is his occupation and he has earned his livelihood from it through the years. However, on March 1, 1968, he agreed with an old friend, Bob Heberling, to enter into a venture for the sale of American Motors automobiles in Jackson, Mississippi. A corporation was organized, and he invested $25,000 in it, loaned another $25,000 on a five-year promissory note, and executed a guaranty instrument for a $25,-000 loan from a Jackson bank. Heberling was supposed to be experienced in car dealership management, and was an employee of American Motors Corporation in Memphis, Tennessee, at the time of the agreement. Brickell had no experience whatsoever in that type business.

Brickell claimed that he went into the venture in order to help his friend, and that the plan was for Heberling to acquire all the stock of the dealership from its profits. The business fell upon hard times, and He-berling suggested that Brickell obtain another manager. Brickell then entered into an agreement with one Alton E. McKey in September, 1969, which provided that McKey would buy Brickell’s stock. The corporation’s charter was amended to reflect the name McKey-McPhail, Inc. and the business operated as McKey American, Inc.

The business failed to revive, and check of the corporate books on October 31, 1972, showed a loss in excess of $200,000. Bric-kell took over the dealership on November 9, 1972, and immediately began to liquidate the corporation for the benefit of creditors. The final auction was held on January 10, 1973.

McKey-McPhail, Inc. bonded its employees through the Travelers’ Indemnity Company [Travelers]. After the auction sale, Brickell turned over matters of the corporation to a law firm in Jackson. That law firm instituted suit against Travelers seeking a recovery for employee misconduct in the operation of the McKey-McPhail business. Suit was filed in the United States District Court for the Southern District of Mississippi, against Travelers in the name of McKey-McPhail, Inc., and Travelers entered a third-party complaint impleading practically everyone connected with the business and indebtedness of McKey-McPhail, Inc. and naming Clarence Chapman, a certified public accountant, who worked on the McKey-McPhail, Inc. books, as one of the third party defendants. McKey-McPhail then filed cross-complaints against other parties, including John Palmer and Clarence Chapman, certified public accountants. Whereupon, Chapman and Palmer filed a fourth party complaint im-pleading Brickell, who then filed a separate cross-complaint against Palmer and Clarence Chapman. The suit was dismissed as to all parties except McKey-McPhail and Travelers. The record indicates that Bric-kell, individually, never contemplated any action against Clarence Chapman until Brickell was sued in the fourth party complaint.

On July 12,1977, Clarence Chapman filed suit in the Circuit Court of the First Judicial District of Hinds County against Travelers, McKey-McPhail, Inc., and Brickell for malicious prosecution. Brickell had an insurance policy issued by U.S. Fire with a personal catastrophe liability endorsement. Listed as “named insured” was Herschel Brickell and the policy provided coverage for “personal liability” which was defined to mean, among other things, mental anguish and mental injury, and malicious prosecution or humiliation sustained by any person. U.S. Fire was required to defend any suit against the insured alleging such injury or damage even if such suit was groundless, false or fraudulent.

Brickell called upon U.S. Fire to defend him in the suit. Eventually, the insurance company denied coverage under Exclusion (h) (business pursuits) of the policy. After much correspondence, in which Brickell insisted that he was covered by the policy, he employed a Jackson law firm to defend him in the suit, which terminated favorably to him. Brickell then called upon U.S. Fire to pay his expenses of defending the case, which request was denied. Hence this suit was filed.

I.

The lower court found that the “business pursuits” exclusion of the policy applies notwithstanding the definition of “business” in Paragraph A(e) under “CONDITIONS” of the policy which was a standard definition. The court stated that Brickell may, or may not, have entered into the business of McKey-McPhail, Inc. with the idea of financing it, but wound up the principal stockholder and did supervise, in a very limited capacity, the operation of the business. Brickell contends that the lower court erred in failing to enter judgment in his favor and against U.S. Fire since, under the undisputed evidence, Brickell was entitled to judgment as a matter of law.

The declaration stated a good cause of action against U.S. Fire and attached as Exhibit A a true copy of the policy in question. Therefore, the question to be decided by this Court, and which is dispositive of the issue, is the interpretation and construction of the insuring agreement, the exclusions, and the conditions of the personal catastrophe liability endorsement, after considering the facts of the case.

The insuring agreement to “defense” provides the company shall:

(a) defend any suit against the insured alleging such injury or damage and seeking damages on account thereof, even if such suit is groundless, false or fradulent [sic]; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
(c) pay all expenses incurred by the company all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid or tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon;
(d) reimburse the insured for all reasonable expenses incurred at the company’s request but reimbursement for loss of earnings by the insured shall , not exceed $100 per day nor an aggregate of $5000; and the amounts so incurred, except settlements of claims and suits, are payable by the company in addition to the applicable limit of liability of this endorsement.

The policy contains the following exclusion applicable to “Personal Catastrophe Liability Endorsement:”

(h) with respect to business pursuits or business property (other than farms) of an insured, to any claim for loss or expense for which insurance is not afforded by any underlying policy listed or insurance described in Item No. 6, but this exclusion shall not apply with respect to the ownership, maintenance or use, including loading or unloading, of any automobile, aircraft or watercraft; ...

Condition (e) of the Personal Catastrophe Liability Endorsement defines “Business” as follows: “ ‘Business’ includes trade, profession or occupation.”

The policy indicates no “underlying policy” insuring Brickell against “personal liability.”

The parties cite cases from other jurisdictions similar to the present case and argue that those cases sustain their respective positions. Although we have not been cited to a Mississippi case which is precisely on point with the question here, we think that established Mississippi law leads to a reasonable and just answer to the question.

Without doubt, U.S. Fire’s policy obligated it to defend any suit against Bric-kell covering the alleged injuries here, regardless of whether the suit is groundless, false or fraudulent. The record indicates that the suit filed by Chapman against Brickell was without merit. The policy contained an exclusion “with respect to business pursuits or business property of the insured,” supra. The only definition of “business” contained in the policy is “ ‘Business’ includes trade, profession or occupation.” We think the term is vague and ambiguous, relative to the problem facing us. U.S. Fire drafted the policy and could have specifically defined those terms and easily could have covered the question presented to the Court. In Mavar Shrimp and Oyster Co. v. U.S.F. & G., 187 So.2d 871 (Miss.1966), the Court said:

A study of the policy convinces us that it is ambiguous relative to this question. Since it is ambiguous, then the policy must be construed most strongly against the insurer and most favorably toward the insured. When it is so construed, we think that the fact that the Insurance Company knew that Mavar contended that Rololfich was not its employee and was fully advised that Mavar had been successful in maintaining in other cases that other persons in the same status as was Rodolfich [sic] were not its employees, obligated the Insurance Company to defend the suit. [187 So.2d at 874].

See also State Farm Mut. Auto Ins. Co. v. Taylor, 233 So.2d 805 (Miss.1970).

In Southern Farm Ins. Co. v. Logan, 238 Miss. 580, 119 So.2d 268 (1960), the declaration did not charge that Logan was an employee of the insured and there was no allegation that such relationship did in fact exist. The policy had the following exclusion: “This policy does not apply: ... to bodily injury to any employee of the insured while engaged in the employment of the insured; .... ” [238 Miss, at 587-88, 119 So.2d at 271]. The Court held that the mere fact Logan was loading milk cans on and off a truck belonging to the insured did not establish the relationship of employer and employee between the insured and Logan.

We think that Brickell’s business, whether it be called trade, profession, or occupation, was that of insurance in which he had been involved for 28 years. The fact that he put up considerable money in McKey-McPhail, Inc. and was issued all the stock of the corporation in return, or as security therefor, and took over the company for liquidation purposes when it became defunct, did not exclude the coverage of the policy, the terms of which were vague and ambiguous. Therefore, the lower court erred in entering judgment for U.S. Fire.

II.

Brickell contends second that the lower court erred in excluding evidence of certain costs of defense, for which he sought recovery under the policy, on the objection that Brickell had not actually “paid” or “incurred” those expenses personally and that Brickell Insurance Company was not a party to the suit. Expenses claimed by Bric-kell follow:

(1) $ 13,095.00 - Attorney’s Fees
(2) 525.00 - CPA Fees
(3) 1,091.00 - Deposition and Copying Expenses
(4) 5,000.00 - Lost Earnings
(5) 1,732.00 - Compensation for an employee, Tony Bernamonti, for work on the defense of the suit
(6) 420.80 - Xerox copies supplied by Brickell Insurance Company pursuant to the defense of Chapman’s suit

U.S. Fire objected to Items 4, 5 and 6 above and had no objection to Items 1, 2 and 3. Mississippi law is settled that an insured, who must defend a suit where the insurer has declined to do so, may recover costs and attorneys’ fees incurred in defending the suit himself. U.S.F. & G. v. Cook, 181 Miss. 619, 179 So. 551 (1938); Southern States Fire Ins. Co. v. Hand-Jordan Co., 112 Miss. 565, 73 So. 578 (1916). Southern Farm Ins. Co. v. Logan, supra, held that, in addition to attorneys’ fees and costs, an unjustified refusal to defend is a breach of contract and renders the insurance company liable for all damages resulting from the breach. [238 Miss, at 590, 119 So.2d at 272].

The lower court permitted Brickell to make a record of Items 4, 5 and 6 above, but sustained appellee’s objection and excluded the testimony. Brickell contends that he contributed considerable work to the preparation and defense of the suit against him; that, if he had not consumed such time in preparing for the defense he would have been working and earning an income in his insurance business; and that he sustained a loss of time and income as a result thereof in the sum of $5,000. The evidence as to that loss was speculative and vague and was not specific. The U.S. Fire insurance policy, Condition “C”, provides that, in the event of suit in which the insurance company provides the defense, the insured shall cooperate fully with the company. We are of the opinion that the lower court was correct in excluding testimony with reference to Item 4.

As to Items 5 and 6, appellee contends that they were not paid for by Bric-kell but by Brickell Insurance Company and were not recoverable as damages. In United States v. Myers, 363 F.2d 615 (5th Cir. 1966), the court held that the United States Government was entitled to collect attorneys’ fees as an item of damages, even though United States attorneys were on the government payroll as salaried employees. The same reasoning was applied in Liberty Mutual Ins. Co. v. Atlantic Coast RR Co., 66 Ga.App. 826, 19 S.E.2d 377 (1942), where the attorneys who defended the insured were retained on an annual fee basis. The insurance company in both cases claimed that the defense of those cases actually cost the government and the insured nothing. We are of the opinion that Items 5 and 6 were legitimate items of damage and were recoverable as damages under the insurance policy-

Therefore, the judgment of the lower court is reversed and rendered, and judgment is entered here for $13,095.00 — attorney’s fees; $525.00 — CPA fees; $1,091.00— deposition and copying expenses; $1,732.00 —accounting services; and $420.80 — for Xerox copies, aggregating $16,863.80.

REVERSED AND RENDERED.

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


text:
    Jessie James RUSSELL v. STATE of Mississippi.
    No. 53868.
    Supreme Court of Mississippi.
    Aug. 18, 1983.
    William 0. Townsend, Pearl, for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Alfred G. Nicols, Jr., Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    Dan TYLER, et ux. v. JACKSON COUNTY PLANNING COMM’N and Jackson County Board of Supervisors.
    No. 54329.
    Supreme Court of Mississippi.
    Aug. 24, 1983.
    Rex K. Jones, Hattiesburg, for appellant.
    Corlew, Krebs & Hammond, Robert P. Krebs, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


author: BEATTY, Justice.

text:
    Ex parte: State of Alabama (Re: Ex parte: State of Alabama, Ex rel. Charles A. Graddick, Attorney General, and James H. Evans, District Attorney (In Re: STATE of Alabama v. Barbara GREEN)).
    81-661.
    Supreme Court of Alabama.
    March 4, 1983.
    See also 389 So.2d 537.
    Charles A. Graddiek, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner.
    L. Wayne Collier, Montgomery, for respondent.
   BEATTY, Justice.

We granted certiorari to determine the propriety of the action of the Court of Criminal Appeals in denying the State’s petition for writs of mandamus and prohibition. This case presents a novel issue and its history requires a somewhat detailed consideration of the facts.

The defendant, Barbara Green, was convicted in Montgomery County Circuit Court on November 16,1978, of violating the Alabama Uniform Controlled Substances Act. Shortly thereafter, on December 1, 1978, the circuit court entered an order sentencing the defendant to three years’ imprisonment and, in addition, denying her probation. The defendant made bond and was free while her sentence was appealed to the Court of Criminal Appeals. That court, on July 29, 1980, 389 So.2d 537, affirmed the defendant’s conviction and sentence, and this Court denied the defendant’s petition for a writ of certiorari in that case on October 31, 1980, 389 So.2d 541.

On November 13, 1980, in the Court of Criminal Appeals, the defendant moved for a stay of the judgment in order to remain free on bond while she sought review by the United States Supreme Court. The Court of Criminal Appeals granted that stay only until December 31, 1980, unless it received “proof of the filing of said petition in the United States Supreme Court.” Then, on December 31, 1980, there was filed in the Court of Criminal Appeals, a copy, or what purported to be a copy, of a petition for a writ of certiorari in the United States Supreme Court, and on the basis of that copy the Court of Criminal Appeals continued its stay of the judgment of sentence, and the defendant remained free on bond.

Actually, the petition for the writ of cer-tiorari was never filed in the United States Supreme Court. This was learned on February 5, 1982, whereupon the Court of Criminal Appeals issued its certificate of judgment to the Circuit Court of Montgomery County. On February 16, 1982, the circuit court directed the defendant to surrender in order to begin serving her sentence. Instead of surrendering, however, the defendant moved in circuit court for a delay in the execution and reconsideration of her sentence imposed on December 1, 1978. The circuit court granted this petition, delayed execution of the sentence on several occasions and reconsidered the sentence. At that point, on April 6, 1982, the State of Alabama petitioned the Court of Criminal Appeals for writs of mandamus and prohibition to require the respondent circuit court judge to set aside his orders delaying the execution of and reconsideration of the sentence. It appears that on April 9, 1982, the circuit court suspended the sentence and placed the defendant on probation with certain conditions. One condition required her to serve six months at Tutwiler Prison for women. In due course the State’s petition was denied, and its subsequent application for rehearing was overruled, hence this petition to us.

A recapitulation of the events and their dates may be helpful:

1978
November 16 Defendant convicted in circuit court.
December 1 Order of circuit court sentencing defendant to three years’ imprisonment and denying probation.
1979
February 28 Motion for new trial denied. March 14 Motion for reconsideration denied.
1980
July 29 Court of Criminal Appeals affirmed conviction.
October 31 Supreme Court of Alabama denied defendant’s petition for a writ of certiorari.
November 13 Defendant’s motion for stay of judgment filed in Court of Criminal Appeals; stay granted.
December 31 Copy of purported petition for writ of certiorari in United States Supreme Court filed in Court of Criminal Appeals, whereupon stay of judgment of sentence was continued in effect.
1982
February 5 Court of Criminal Appeals’ certificate of judgment issued to Circuit Court of Montgomery County.
February 16 Circuit Court ordered defendant to surrender.
February 19 Defendant’s motion to reconsider sentence filed.
April 9 Sentence suspended and probation granted.

At bottom there are two basic legal questions presented:

(1) Whether the circuit court has jurisdiction to reconsider a sentence which has been affirmed on appeal, and

(2) Whether the circuit court has jurisdiction to reconsider a denial of probation long after such a denial has been entered.

We answer the first inquiry in the negative and the second inquiry in the affirmative.

In answer to the first question, we take note of Code of 1975, § 15-17-5, the thirty-day statutory period allowed for filing a motion for new trial, and § 12-22-133, which specifically deals with the jurisdiction retained by the circuit court when a conviction has been appealed, viz.:

“Where an appeal is taken from the judgment of any ... circuit court in criminal cases, the trial court retains jurisdiction for the purpose of granting a motion for a new trial and also retains jurisdiction for the purpose of enforcing its judgment where the appeal is dismissed before the judgment of the appellate court is entered.”

§ 12-22-133.

In Jones v. State, 55 Ala.App. 466, 316 So.2d 713 (1975), the defendant gave a timely notice of appeal without having made a motion for a new trial. However, after more than three months had elapsed, he withdrew his notice of appeal and applied for probation. After more than four months had expired since the judgment of conviction, the trial court denied probation but ordered the sentence reduced. On appeal to the Court of Criminal Appeals, that court held that, there having been no motion for a new trial filed within thirty days from the judgment of conviction, the trial court had lost all jurisdiction at the time it attempted to reduce the sentence. To the same effect is the holding in Cooks v. State, 55 Ala.App. 538, 317 So.2d 506 (1975), in which, on remand after appeal, the trial court had purported to reduce the term of a sentence nearly two years after it had been imposed. The Court of Criminal Appeals held that the trial court was without jurisdiction to reduce the sentence because the request for the reduction was not made within thirty days of sentencing or by the date when the trial court denied the defendant’s motion for a new trial.

The language of Code of 1975, § 12-22-244, strengthens this view on the limitation of the trial court’s authority:

“When the defendant ... gives bail pending the appeal and the judgment of conviction is affirmed ... he is bound by the undertaking of bail to surrender himself to the sheriff ... within 15 days from the date of such affirmance.... If the defendant is taken on such writ or if he shall surrender himself to the sheriff, the sentence must, without delay, be carried out as if no appeal had been taken.”

We agree with the position taken by the Court of Criminal Appeals in the cited cases. See also Holman v. State, 43 Ala. App. 509, 193 So.2d 770 (1966). Those cases, together with the cited statutes, show that the Circuit Court of Montgomery County lost jurisdiction to reconsider the defendant’s sentence when the trial court, in February 1979, denied the defendant’s motion for a new trial.

Consideration of the second question, however, leads to a contrary result. The defendant was denied probation on December 1, 1978, and the Court of Criminal Appeals’ certificate of judgment affirming that conviction was issued on February 5, 1982. The circuit court, however, reconsidered its order thereafter and granted probation on April 9,1982. Was this action timely?

Historically, neither the courts nor the legislature had the authority to suspend sentences and grant probation. Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935). In this state, Amendment 38 of the Constitution of 1901 empowered the legislature to “authorize the courts having criminal jurisdiction to suspend sentence and to order probation.” Thus the power to exercise probationary authority requires legislative sanction. That sanction presently is found in Code of 1975, § 15-22-50, which, after granting the authority, states further:

“[T]he court, after a plea of guilty, after the returning of a verdict of guilty by the jury or after the entry of a judgment of guilty by the court, may suspend execution of sentence and place the defendant on probation, or may impose a fine within the limits fixed by law and also place the defendant on probation.” (Emphasis added.)

At first glance the language of this statute might suggest that the probationary power of the circuit court is limited to a period of time following proceedings in the trial court. Neither that view nor any other, short of considering the time when execution of the sentence has actually commenced, has heretofore been adopted by this Court. Indeed the predecessor statute to § 15-22-50, then Title 42, § 19, Alabama Code of 1940, with no material difference in language, was construed by this Court in Ex Parte Smith, 252 Ala. 415, 418, 41 So.2d 570 (1949):

“It will be observed that the power to suspend the execution of sentence and to place the convicted person on probation is not expressly limited to the time of imposition of sentence or to any period of time thereafter. On the contrary, it seems clear that it was the intention of the legislature enacting this remedial and humanitarian legislation that the power to suspend the execution of a sentence should continue until its execution has actually commenced.
“The circuit court is not deprived of the power so conferred merely because the petition for probation is not filed within thirty days from the date on which the judgment of conviction was rendered. § 119, Title 13, Code 1940, has no application to petitions for probation. Nor does the failure of a person who has been convicted and sentenced and who is out on bail pending appeal to surrender himself within fifteen days after the affirmance of the judgment of conviction deprive the circuit court of jurisdiction to entertain a petition for probation filed prior to the time the execution of the sentence is actually begun.”

This position accords with that of the federal courts. 3 Wright, Federal Practice and Procedure, § 529 at 144, n. 14. We believe that Ex Parte Smith, supra, states the correct interpretation of legislative intent on the subject.

It has been shown that the Circuit Court of Montgomery County considered probation anew on the petition for reconsideration, and before the execution of the sentence. Thus that court was within its authority under § 15-22-50.

Although we have held that the trial court’s reconsideration of defendant’s sentence was without authority, her three-year sentence itself ultimately was unchanged. The condition of the probation, that the defendant serve six months at Tutwiler Prison, did not reduce the sentence itself because at the end of that time a review of conditions was provided for, which could include revocation of probation and service of the remainder of the full term. Therefore, that aspect of this petition became moot. With respect to the probation issue, because the circuit court was within its authority to grant probation, albeit upon a reconsideration, the action of the Court of Criminal Appeals in denying the petition of the State of Alabama was correct. Accordingly, the decision of that Court must be, and it is, affirmed.

AFFIRMED.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Ex parte Eyston Asquith HUNTE. (Re: Ex parte State of Alabama, ex rel. Attorney General (In re: STATE of Alabama v. Eyston Asquith HUNTE))
    81-933.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Aug. 5, 1983.

      James E. Atchison and Richard D. Horne of Hess, Atchison & Horne, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley and Perris W. Stephens, Asst. Attys. Gen., for respondent.
   EMBRY, Justice.

The writ of certiorari was granted in this case to review an order of the Court of Criminal Appeals that granted the writ of mandamus compelling the Honorable Joseph D. Phelps to vacate his order granting the motion of petitioner Hunte for a change of venue to Mobile County from Montgomery County.

Petitioner Eyston Asquith Hunte, a practitioner of medicine in Mobile, Mobile County, Alabama, was indicted by the Montgomery County Grand Jury for violating § 22-1-11, Code 1975: Medicaid Fraud. The statute reads in pertinent part:

“(a) Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement representation or omission of a material fact in any claim or application for any payment, regardless of amount, from the medicaid agency, knowing the same to be false; or with intent to defraud or deceive, makes, or causes to be made, or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for medical benefits from the medicaid agency, knowing the same to be false; shall be guilty of a felony and upon conviction thereof shall be fined not more than $10,000.00 or imprisoned for not less than one nor more than five years, or both.”

The one count of the indictment before us reads:

“The Grand Jury of Montgomery County, Alabama, charges that before the finding of this Indictment, Eyston A. Hunte, alias Dr. E.A. Hunte, whose identity is to the Grand Jury otherwise unknown, did with the intent to defraud or deceive, make or cause to be made or assist in the preparation of a false statement, knowing such to be false, in a claim or application for payment from the Medicaid Agency, the same being a request for payment bearing the date to wit: June 24, 1980 and bearing claim number to wit: 80184331070 a false statement, representation or omission of a material fact, to wit: that the pap smear laboratory test, a better description of which is unknown to the Grand Jury, for Medicaid recipient to wit: Vivian Steele was personally performed or rendered by or under the personal direction of said Eyston A. Hunte, on or about to wit: June 24, 1980 when in fact said laboratory test was not personally rendered by or under the personal direction of Eyston A. Hunte, M.D., in violation of Code of Alabama, 1975, Section 22-l-ll(a) and against the peace and dignity of the State of Alabama.” (Emphasis added.)

The dispositive issue for review is whether, under the undisputed facts of this case, the offense proscribed by § 22-1-11, Code 1975, was complete and took place wholly within Mobile County, thereby entitling Hunte, under the Constitution and laws of Alabama, to be tried in the county in which the offense was allegedly committed? The answer is in the affirmative.

In analyzing the problem being addressed, we should first look to the statute proscribing the acts which gave rise to the indictment of petitioner:

“(a) Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for any payment ... from the medicaid agency, knowing the same to be false ... shall be guilty of a felony .... ” (Emphasis added.)

Too well settled to require citation of authority, is the rule of statutory construction that requires looking at the words of the statute to determine the intent of the Legislature. Abiding by that rule, we perceive nothing in the language of the statute evidencing that the offense therein proscribed required receipt by, or reliance upon the part of, the Medicaid Agency of the allegedly false claim in order that the offense be completed or consummated. Unlike the civil action for fraud and misrepresentation brought by the Medical Services Administration, sub nominee of the same, versus Dickerson at 362 So.2d 906 (Ala.1978), to recover funds allegedly improperly paid under the medicaid program, this case is a prosecution for a statutory offense requiring no reliance on any misrepresentations in order to finally approve payment to the supplier of services. Here the crime is complete, once one, with intent to defraud, makes or causes to be made or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for any payment This is in marked contrast to the holding of this court in Dickerson:

“[W]e construe the ‘thrust of the complaints’ to be in tort for misrepresentation and fraud. Since the cost reports required by the Medical Services Administration and containing the alleged misrepresentations were mailed to its offices in Montgomery and since these cost reports were allegedly relied upon by the Administration in finally approving payments made to the nursing homes, we are of the opinion that Montgomery County is ‘the county in which the act or omission complained of may have been done or may have occurred.’ ...” (Emphasis added.)

362 So.2d at 909.

We find support for this construction of the subject statute, by analogy, to the statutory crimes of falsifying business records, § 13A-9-45, Code 1975, and forgery, § 13A-9-2 through -4. Section § 13A-9-45, reads:

“(a) A person commits the crime of falsifying business records if, with intent to defraud, he:
“(1) Makes or causes a false entry in the business records of an enterprise; or
“(2) Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise when he knows the retention or preservation of a true entry is required by law independent of this section; or
“(3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law; or
“(4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise when he knows a true entry is required by law independent of this section.”

We think it significant that the Commentary to this section states:

“Such records as bills of lading, applications, reports, ledgers and warehouse receipts are examples of the broad coverage; however, government records are not included, being subsumed by § 13A-10-12. Even so, the aim of the Code is not to give protection to the records themselves. Note that the proposal begins: ‘A person commits the crime ... if, with intent to defraud .... ’ Thus, its thrust is directed toward the prevention of contemplated frauds committed through the use of the records.”

We think the more apt analogies found in the statutory crimes of forgery are stated in portions of § 13A-9-3:

“(a) A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:
“(1) A deed, will, codicil, contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
“(2) A public record, or an instrument filed or required or authorized by law to be filed in a public office or with a public employee; or
“(3) A written instrument officially issued or created by a public office, public employees or government agency.”,

and in § 13A-9-4:

“(a) A person commits the crime of forgery in the third degree if, with intent to defraud, he falsely makes, completes or alters a written instrument.”

We think the following a pertinent analogy to the offense here charged:

“[FJorgery of an endorsement is complete as a crime when the endorsement having the capacity to defraud, is placed on the instrument without authority and with the intent to injure or defraud. ‘It is not necessary that any prejudice should in fact have happened by reason of the fraud. The capacity of the false and fraudulent writing to work injury, is the material question. If the writing has that capacity, the offense is committed.’ ...” Wyatt v. State, 257 Ala. 90, 57 So.2d 366 (1952).

It seems clear the statute under examination here is aimed at the prevention of contemplated frauds to be worked upon the Medicaid Agency, to paraphrase the Commentary regarding this statute.

Therefore, it follows that venue lies in Mobile County, the alleged offense having been fully completed or consummated there. Const.1901, Art. I, § 6; § 15-2-2, Code 1975. The intent to defraud, if in fact there existed such an intent, was present at the moment the claim or application was completed requesting payment just as in the case of forgery or falsification of business records. The claim, application, or request for payment, if false and if intended to defraud, had the capacity to harm, injure, or defraud, when completed.

We think it would be helpful to address issues raised by the State, although not dispositive, that merit consideration. They are three in number but one of them is that disposed of above. The other two are:

“I

“Whether the Alabama Court of Criminal Appeals can issue a writ of mandamus vacating a trial court order changing venue when the trial court was without authority under Code of Alabama 1975 § 15-2-20 to change venue.

“II

“Whether the Alabama Supreme Court should not review a decision of the Alabama Court of Criminal Appeals on a writ of certiorari when Rule 39 A.R.A.P. has not been complied with.”

I

Regarding this issue it is necessary to look to the exhibits attached to the State’s petition for the writ of mandamus filed in the Court of Criminal Appeals (attached as an appendix to this opinion).

As may be seen by scrutiny of Exhibit C, the State joined issue on the question of where the alleged crime occurred, was completed, or consummated. This was the dis-positive issue as we noted earlier in this opinion. The authorities cited in the State’s brief filed in the trial court would only be applicable if it be assumed the alleged crime was not completed or consummated in Mobile County. Again, in the State’s motion for reconsideration, Exhibit E, it appears the prime point was the place of consummation of the alleged offense and again the greater portion of the State’s memorandum in support of its motion for reconsideration is devoted to that issue. Exhibit E.

As noted by petitioner in brief, the motion for change of venue was treated throughout the proceedings in the trial court upon the basis that the issue was the place of consummation of the alleged crime. The State says the motion should have been one to quash the indictment for lack of jurisdiction of the Montgomery Circuit Court and therefore the Montgomery County Grand Jury. Also, that the motion was filed after arraignment thus violating the time of filing requirement regarding motions to quash indictments.

We opine that the caption or title given petitioner’s motion is not crucial and may be treated as either for a change of venue or to quash the indictment. In either case we deem it was properly granted by the trial court. See Union Springs Telephone Co. v. Green, 285 Ala. 114, 229 So.2d 503 (1969). We see no error resulting from treating it as either. Apparently petitioner was willing to be tried on the indictment returned by the Montgomery County Grand Jury but has the right to be tried in Mobile County if the venue laws are to be fairly and justly applied and not applied so as to require him to bring all his witnesses and records a distance of almost two hundred miles from where he resides and where the alleged offense was consummated. To agree with the State’s view of this matter would result in most everyone dealing with an agency of the State through the mails, in the manner the facts of this case show, being tried for alleged offenses not by a jury composed of residents of one’s home county but rather by one composed of Montgomery County residents. On remand, we opine that the trial court may either reinstate its order or quash the indictment.

II

The State contends that we are precluded from reviewing the order of the Court of Criminal Appeals because petitioner did not file a Rule 39(k), ARAP, statement upon application for rehearing in that court. We need not deal with this contention except to state that the facts were not disputed in the trial court or in the appeals court and are before us in the respective petitions of the parties and the dispositive issue is one of law.

For the reasons assigned, the order of the Court of Criminal Appeals is reversed and the case remanded to that court for entry of order and judgment remanding the case to the Circuit Court for the latter court to either reinstate its order changing venue or to quash the indictment in this case.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, J., dissent.

APPENDIX

EXHIBIT B

STATE OF ALABAMA, Plaintiff VS. EYSTON ASQUITH HUNTE, Defendant

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

CASE NO. 81-1850

NOTICE TO ASSISTANT ATTORNEY GENERAL OF MOTION FOR CHANGE OF VENUE

TO HONORABLE MICHAEL HORSLEY, ASSISTANT ATTORNEY GENERAL, STATE OF ALABAMA, MONTGOMERY, ALABAMA

Please take notice of the filing of the attached application for a change of venue on behalf of Eyston Asquith Hunte and that the same will be presented to the Honorable Joseph D. Phelps, Judge of the Circuit Court of Montgomery County, Alabama and that the request will be made that said motion be set for hearing immediately.

/s/ Herndon Inge. Jr. HERNDON INGE, JR. Attorney for Defendant

STATE OF ALABAMA, Plaintiff VS. EYSTON ASQUITH HUNTE, Defendant

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

CASE NO. 81-1850

APPLICATION FOR CHANGE OF VENUE

Comes the Defendant in the above styled cause and respectfully represents and shows unto the Court that heretofore the November, 1981 Grand Jury of Montgomery County, Alabama returned into this court an indictment against him charging him with fifty-five counts of making or causing to be made false statements on application for payment from the Medicaid Agency and that said indictment is now pending for trial in this court on January 28, 1982.

The Defendant would further show unto the Court that if any of said acts took place they took place at his office at 2168 St. Stephens Road, Mobile, Mobile County, Alabama, that he lives in Mobile County and has no connection whatsoever with Montgomery County, Alabama and under the 1975 Alabama Code Sections 15-2-2 and 15-2-6 that Mobile County, Alabama is the proper place where said charges should be tried.

The Defendant further shows unto the Court that he is a physician practicing in Mobile, Alabama, has a large number of patients dependent on him, has patients in the hospital who need his attention and if said trial was conducted in Montgomery County it would be an undue hardship on him and his patients if he has to go back and forth two hundred miles, obtain lawyers and make preparations for the trial.

The Defendant further shows unto the Court that he knows no one in Montgomery County, has only a casual acquaintance with said area having only passed through it on several occasions and that he is totally unknown there.

The Defendant further shows unto the Court that if said trial is held in Montgomery County it will necessitate that all witnesses for his defense including his employees, insurance clerks and medical assistants and all evidence, files, account sheets and patients’ records will have to travel 200 miles each way to prepare for said trial and attend said trial that may last several days.

The Defendant further shows unto the Court that in defense of said case he would expect to use character witnesses, none of whom reside within 200 miles of Montgomery, Alabama or are known in Montgomery and that it would be impossible to get witnesses to go that far for the trial thereby depriving him of an adequate and fair trial.

The Defendant further shows the Court that an identical case for the same offenses alleged committed by a Mobile doctor has been transferred to Mobile for trial and it would be unjust and inequitable to require one doctor to go to.Montgomery for trial of his case and the other to be tried in his home town.

The Defendant further shows to the Court that in order to have a fair and impartial trial it should be in the home town for the Defendant where he is known and where all of the witnesses reside and he can be tried by a jury of his peers.

The Defendant avers that he is not guilty of the charges made in this case and that a jury of his peers will so determine.

/s/ Evston Asquith Hunte EYSTON ASQUITH HUNTE

STATE OF ALABAMA

COUNTY OF MOBILE

Before me, the undersigned authority, personally appeared Eyston Asquith Hunte, who being first duly sworn, deposes and says that he has read the foregoing and the facts alleged therein are true and correct.

/s/ Evston Asquith Hunte EYSTON ASQUITH HUNTE

Subscribed and sworn to before me this 11 day of January. 1982.

/s/ Herndon Inge. Jr. NOTARY PUBLIC, MOBILE COUNTY, ALABAMA

inge, McMillan & inge Attorneys for Defendant By: /s/ Herndon Inge. Jr, HERNDON INGE, JR.

EXHIBIT C

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA, VS. EYSTON ASQUITH HUNTE ) ) ) ) ) CRIMINAL ACTION NO. 81-1850-P

STATE’S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR CHANGE OF VENUE

Comes now the State of Alabama in the above styled cause and files this Memorandum Brief in Opposition to Defendant’s Motion for Change of Venue.

The defendant’s motion for a change of venue presents two reasons for such change: (1) that the crime charged was committed exclusively in Mobile County and (2) that it would be a hardship on the defendant to bring witnesses to Montgomery County. These two issues are treated separately below for the sake of clarity.

The crime for which the defendant was indicted is, briefly stated, one of making a false statement in an application for payment from the Alabama Medicaid Agency. The State would ask the Court to take judicial notice of the fact that Alacaid (the fiscal intermediary for processing claims) and the Alabama Medicaid Agency are located in Montgomery County.

Under § 15-2-6, Code of Alabama 1975, “When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties then venue is in either county.” It is the State’s contention that although the information contained in a claim or application for payment was filled out in Mobile County, it did not become an application for payment from the Medicaid Agency until demand is made on the Medicaid Agency for payment after the claim is processed by Alacaid. It is in Montgomery County that the checks are drawn for payment of the application. Also it is in Montgomery County where the claim is received. Part of the acts or effects thereof constituting or requisite to the consummation of the offense occurs in Montgomery County. If the defendant had not mailed or caused to be mailed an application or a claim to the Medicaid Agency, there would have been no application for payment to the Medicaid Agency, thus no crime under § 22-1-11, Code of Alabama 1975 would have occurred. Thus, the offense is committed partly in one county, in this case Mobile County where the application for payment is filled out, and partly in another, Montgomery County, where the application for payment is received and processed for payment. The case cited by the Defendant states that for § 15-2-6, Code of Alabama 1975 to become operative the crime must:

“consist of more than one act, each of which acts, or the effect of each must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.”

DeGraffenried v. State, 28 Ala.App. 291, 182 So. 482 (1938). The State submits that until a claim is submitted to the Medicaid Agency for payment the offense could not be consummated.

In Seay v. State, 21 Ala.App. 404, 108 So. 620 (1926), the issue of venue was raised. The crime charged in that case was uttering a forged instrument by sending it in the mail. The forged instrument was sent from Barbour County to Pike County. The defendant attempted to raise the issue of venue claiming that the offense of uttering a forged document was committed if at all in Pike County where the endorsement was placed upon the document and not in Barbour County where the document was sent. The Alabama Supreme Court, however, under the facts of that case, held “However the evidence may be considered, it presents a crime begun in one county and consummated in another, thereby placing the venue in either county.” Seay v. State, 21 Ala.App. 404, 108 So. at 621. It is the State’s position that the present case clearly falls within that holding as the crime made the basis of the indictment in this case was consummated only after the application for payment was mailed to and received by Medicaid here in Montgomery County.

The defendant’s second reason for a change of venue is to the effect that the inconvenience of a trial in Montgomery would be so great as to render a fair and impartial trial here in Montgomery impossible.

On a motion for change of venue “the burden is on the defendant to show to the reasonable satisfaction of the court that impartial trial and an unbiased verdict cannot be reasonably expected.” Flurry v. State, 289 So.2d 632, Godau v. State, 179 Ala. 27, 60 So. 908; Maund v. State, 254 Ala. 452, 48 So.2d 553. Furthermore, “the mere belief of the party applying or his witnesses that a fair trial cannot be had is not enough to sustain an application for a change of venue.” Flurry v. State, 289 So.2d at 636 quoting Lee v. State, 246 Ala. 343, So.2d 471; Jackson v. State, 104 Ala. 1, 16 So. 523 (1894).

A review of appellate cases concerning a change of venue revealed that changes of venue should be granted only if local conditions are such that a fair and impartial trial cannot be had. Such conditions as excessive adverse publicity about the case or the crime being of such heinous nature that community passions are aroused to such an extent that the defendant cannot get a fair and impartial trial warrant a change of venue and not inconvenience as to the defense. Neither of these two situations are present in this case. The crime is not of such a nature to have aroused the passions of Montgomery Countians to such a degree that Dr. Hunte, the defendant, could not receive a fair and impartial trial.

The defendant’s second reason for requesting a change of venue, that it would be an undue hardship to bring witnesses to Montgomery County, amounts to a forum nonconveniens argument. However, the doctrine of forum nonconveniens does not apply to criminal cases. 20 Am.Jur.2d §§ 172-182. Furthermore, there is no Alabama statute allowing for a change of venue merely for the convenience of the defense.

In summary, the State contends that venue is proper in Montgomery County because part of the offense was committed here in Montgomery County and that there has been no showing in defendant’s motion for change of venue that the defendant cannot receive a fair and impartial trial in Montgomery County.

Respectfully submitted, /s/ Charles A. Graddick CHARLES A. GRADDICK ATTORNEY GENERAL

/s/ J. Michael Horsley J. MICHAEL HORSLEY ASSISTANT ATTORNEY GENERAL

EXHIBIT E

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA, ) ) VS. ) CRIMINAL ACTION NO. 81-1850-P ) EYSTON ASQUITH HUNTE )

STATE’S MOTION FOR RECONSIDERATION

Comes now the State of Alabama by and through its counsel, the Alabama Attorney General and respectfully request that the Court reconsider its January 22,1982 Order granting Defendant’s Motion for a change of venue on the ground that:

(1) An essential requisite to the consummation of the offense of which Defendant has been indicted occurred in Montgomery County, § 15-2-6, Code of Alabama, 1975, and
(2) Defendant has failed to satisfy the requisites for change of venue, § 15-2-20, Code of Alabama, 1975.
Respectfully submitted, /s/ Charles A. Graddick CHARLES A. GRADDICK ATTORNEY GENERAL /s/ Robert S. Thompson ROBERT S. THOMPSON ASSISTANT ATTORNEY GENERAL

EXHIBIT D

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA ) ) V. ) CASE NO. CC-81-1850-P ) EYSTON ASQUITH HUNTE ) ) ) ) ) ) ) ) ) ) ) )

ORDER

This matter being presented to the Court upon the Motion FOR CHANGE OF VENUE heretofore filed, and upon consideration of same, the Court finds that said Motion should be granted. It is, therefore,

ORDERED, ADJUDGED and DECREED that the Motion “ FOR CHANGE OF VENUE heretofore filed in this cause be and the same is hereby GRANTED.

DONE this the 22nd day of January . 1982.

/s/ Joseph D. Phelps CIRCUIT JUDGE

Mike Horsely Herndon Inge, Jr.

MEMORANDUM IN SUPPORT OF STATE’S MOTION FOR RECONSIDERATION

The State respectfully requests that the Court reconsider its order changing venue because as a general rule, the right to a change of venue in criminal cases is provided by statute, and the extent and manner of its exercise is of legislative declaration. See Patterson v. State, 175 So. 371 (Ala. 1937); 22 CJS § 186 (where the venue of a criminal prosecution is fixed by statute,, a court has no power to change venue unless it is authorized to do so by law, and it may act only on a proper showing and in strict conformity with the statute).

The only vehicle provided by the Alabama State legislature for changing venue is § 15-2-20 of the Alabama Code 1975. Thus:

(a) Any person charged with an indictable offense may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found. The application must be sworn to by him and must be made as early as practicable before the trial, or it may be made after conviction upon a new trial being granted.

Consequently, the policy of our change of venue statute balances the inconvenience and administrative inefficiency of a change with the knowledge that certain crimes so arouse the public in a particular locality that a fair trial there is impossible. A study of the cases reveals that these crimes are invariably of a notorious or spectacular nature, involving violence to the person, specifically murder and rape. See Gillard v. State, 277 So.2d 901 (Ala.1973).

The defendant has failed to provide this Court with the proper predicate for change of venue. Indeed, defendant himself admits in his motion that he does “not contend that Dr. Hunte cannot receive a fair and impartial trial.”

Therefore, unless and until the requisites of § 15-2-20 are satisfied the Court is without basis to order a change of venue.

The offense was committed partly in Mobile County and partly in Montgomery County

Although the issue regarding the place in which the offense was committed has been adequately briefed in the State’s Opposition Motion, it is worth restating.

The Defendant was indicted by the November 1981 session of the Montgomery County Grand Jury for violating § 22-1-11 of the Alabama Code which in relevant part makes it unlawful for:

(1) Any person who, with intent to defraud or deceive, and
(2) Makes or causes to be made,
(3) Any false statement representation of omission of a material fact in,
(4) Any claim or application for any payment from the Medicaid Agency.

In the instant case, Defendant presented fraudulent claims to the State Medicaid Agency for the purpose of receiving payment from the Agency. The Agency is located in Montgomery County. Although the false statements contained in the claim jform were apparently made by Defendant 'while in his office, which is located in Mobile County, the crime for which he was indicted was not consummated until the claim for payment from the Medicaid Agency was received and accepted as a viable claim in Montgomery County.

The State accepts Defendant’s proposition that the State Constitution guarantees the accused a right to a trial in the county or district in which the offense was committed. This right is satisfied when part of the acts constituting the crime are committed in the county in which the indictment is returned. Williams v. State, 383 So.2d 547, 555 (Ala.Crim.App.1979). Moreover “when an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county” § 15-2-6, Code of Alabama, 1975.

The Alabama Supreme Court has interpreted the phrase, “or requisite to the consummation of the offense” to mean those acts necessary for the completion of the offense or for the achievement of the unlawful purpose. See William v. State, 383 So.2d 564, 566 (Ala.1980). Consequently, venue is proper in Montgomery County if any acts were done in Montgomery County which were requisite to the achievement or end of committing Medicaid fraud.

It hardly seems arguable that there were acts done in Montgomery County which were requisite to the achievement or consummation of the offense. Obviously the act of making false representation in the claim form, in and of itself, does not constitute Medicaid fraud. For instance, had Defendant merely made out the claim form with an intent to defraud the Agency, but never presented such claim forms for payment from the Agency, the crime of Medicaid fraud would not be complete, since payment from the Agency had not been requested. Until such request was made, the Agency would not and could process the claim to determine if payment was proper.

Logic dictates that if the claim form is never received for processing by the Agency here in Montgomery, there has been no “application for any payment from the Medicaid Agency.”

To hold otherwise is to say that the crime of Medicaid fraud was consummated at the time the forms were made out in Mobile, whether or not such claims were ever submitted to the agency for processing and payment.

For this reason and in accord with Williams v. State, 383 So.2d 564 (Ala.1980), § 15-2-6 is applicable here. That is, a part of the crime was committed in Mobile County (intent to defraud, making out the claim form) and that part necessary for the achievement of this unlawful purpose or consummation of the offense was committed in Montgomery County.

The Court should note that § 15-2-6 is not a basis upon which to change venue, but extends the jurisdictional reach of the Court. See § 15-2-6 (notes).

Given the factual situation of this case, the State respectfully requests that the Court find that:

(1) Defendant presented inadequate grounds upon which to base a change of venue, and
(2) Part of the crime for which defendant was indicted was committed in Montgomery County.
Respectfully submitted, /s/ Charles A. Graddick CHARLES A. GRADDICK ATTORNEY GENERAL
/s/ Robert S. Thompson ROBERT S. THOMPSON ASSISTANT ATTORNEY GENERAL

EXHIBIT F

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

STATE OF ALABAMA, PLAINTIFF V. EYSTON ASQUITH HUNTE, DEFENDANT. CASE NO. CC-81-1850-P

ORDER

This case is presented to the Court upon the State’s Motion for Reconsideration of the Court’s order granting Defendant’s motion for change of venue, and upon consideration of same the Court grants the State’s Motion to reconsider, and upon reconsideration the Court affirms its prior Order of January 22, 1982 removing the case to Mobile, Alabama.

DONE this the 9th day of February, 1982. /s/ Joseph D. Phelps CIRCUIT JUDGE

Robert S. Thompson Herndon Inge, Jr.

THE STATE OF ALABAMA-JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

3 Div. 544

Ex parte State of Alabama, ex rel. Charles A. Graddick, as Attorney General of Alabama

In re: State of Alabama v. Eyston Asquith Hunte PETITION FOR WRIT OF MANDAMUS Montgomery Circuit Court

IT IS ORDERED that answer by respondents and briefs by all parties be filed in the Court of Criminal Appeals by April 12, 1982, should the parties desire to file such answer and briefs.

IT IS FURTHER ORDERED that if oral argument is desired, this Court shall be notified immediately, so that argument may be set in this Court. Tyson, DeCarlo, Bowen, and Barron, JJ., concur. Harris, P.J., who would deny this petition, dissents.

WITNESS, Mollie Jordan, Clerk of the Court of Criminal Appeals, this 5th day of April, 1982.

/s/ Mollie Jordan CLERK, COURT OF CRIMINAL APPEALS OF ALABAMA

THE STATE OF ALABAMA - THE ALABAMA COURT - JUDICIAL DEPARTMENT IF CRIMINAL APPEALS

3 Div. 544

Ex parte State of Alabama, ex rel. Charles A. Graddick, as Attorney General of Alabama

In re: State of Alabama v. Eyston Asquith Hunte

PETITION FOR WRIT OF MANDAMUS

Montgomery Circuit Court Number CC-81-1850-P

TO THE HONORABLE JOSEPH D. PHELPS, AS JUDGE OF THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA, GREETINGS:

You are hereby notified that the Court of Criminal Appeals on April 20, 1982, did make and enter the following order in the above-styled cause:

“Come the petitioners and file in this Court a petition for Writ of Mandamus to be directed to the Honorable Joseph D. Phelps, as Judge aforesaid, commanding and requiring him to rescind and hold for naught his order of January 22, 1982, granting the defendant’s motion for change of venue transferring State of Alabama v. Eyston Asquith Hunte from Montgomery Circuit Court to Mobile Circuit Court.”

NOW, THEN, in pursuance of the foregoing order, the peremptory Writ of Mandamus hereby issues to the Honorable Joseph D. Phelps, as Judge of the Circuit Court of Montgomery County, Alabama, commanding and requiring him to rescind and hold for naught his order of January 22, 1982, granting the defendant’s motion for change of venue transferring State of Alabama v. Eyston Asquith Hunte from Montgomery Circuit Court to Mobile Circuit Court. Tyson, DeCarlo, Bowen, and Barron, JJ., concur. Harris, P.J., dissents.

WITNESS, Mollie Jordan, Clerk of the Court of Criminal Appeals, this 20th day of April, 1982.
/s/ - Mollie Jordan CLERK, COURT OF CRIMINAL APPEALS OF ALABAMA

TORBERT, Chief Justice

(dissenting).

I strongly disagree with the majority’s reasoning in this case, which holds that venue is only proper in the county in which the application was filled out. I would hold that venue is proper in either the county in which the application was filled out, or in Montgomery County, where the application was received by the agency.

The language of the statute requires that the party make a “claim or application” for payment from the agency. Black’s Law Dictionary (5th ed. 1979) defines an “application” as “A putting to, placing before, preferring a request or petition to or before a person.” (Emphasis added.) This definition appears to encompass a presentation of the document to the individual or agency involved.

While I have found no Alabama cases dealing with this issue, I am persuaded by the approach taken in other states. In Farley v. State, 240 Ind. 318, 163 N.E.2d 885 (1960), the defendant was convicted of making a false statement in an application for a certificate of title. On appeal, the defendant contended that the statute did not require any presentation or delivery of the application in order to complete the offense. The court said:

“[I]t is our position that the word ‘application’ itself necessarily implies the act of presentation of the form or paper commonly called a form of application. In other words, a form of application cannot be or become ‘an application’ until it is actually presented to the proper person.”

163 N.E.2d at 886.

The same result was reached in United States v. Bithoney, 472 F.2d 16 (2d Cir. 1973), wherein the court stated, “To hold that the mere writing out of a false acknowledgment, which is immediately destroyed and never filed, presented or in any way used to obtain relief in any court or administrative agency seems to us to be a result that was never contemplated by the Congress when this statute was enacted.” 472 F.2d at 22. Likewise, I am convinced that it was not intended, as petitioner asserts, that the alleged crime would be. complete when the application was filled out. Rather, the crime charged is complete when the application is forwarded to MSAA for payment. Therefore, under the applicable venue statute, Code 1975, § 15-2-6, venue would have been proper either in Mobile County, where the crime was commenced, or in Montgomery County, where it was completed. See also, Travis v. United States, 364 U.S. 631, 636, 81 S.Ct. 358, 361, 5 L.Ed.2d 340 (1961). The cases cited herein, relating to “applications,” are more closely allied to the instant case than the falsifying business records or forgery cases relied upon by the majority.

The majority’s holding produces an unjust result. A party who makes a false statement on a claim, but subsequently decides not to submit the claim or application and destroys it, would nonetheless have completed the crime of Medicaid fraud. I doubt the legislature intended this result. I am of the opinion that the crime is not complete until the claim or application is at least forwarded to the appropriate state agency.

MADDOX, J., concurs.