author: TORBERT, Chief Justice.

text:
    John Frank HURT and Mary Texas Garner v. Jack GIVEN and Maude Given.
    82-124.
    Supreme Court of Alabama.
    Sept. 30, 1983.
    Rehearing Denied Jan. 20, 1984.
    William W. Tally, Scottsboro, for appellants.
    George K. Williams of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellees.
   TORBERT, Chief Justice.

Defendants John Frank Hurt and Mary Texas Garner appeal from a final decree of the Madison County Circuit Court declaring void a tax deed upon which they claim title to the disputed property, and finding that, even if the tax deed were found valid, plaintiffs have been in actual, open, notorious, peaceable and continuous possession of the disputed property for more than twenty years since the date of the tax deed, and, therefore, would have acquired the property by prescription. The court ordered that fee simple title to the property vest in plaintiffs, free and clear of any claim of right or title by the defendants.

The issues raised on this appeal are as follows:

1. Did the trial court err in declaring void in its entirety a tax deed purportedly conveying property described in the deed itself as being wholly within the county of the probate court making the deed, which is, in reality, partially in another county?

2. Did the trial court err in concluding that the facts as stipulated in this case support a finding that the plaintiffs acquired title to the disputed property by prescription?

We address the second question first. As we find plaintiffs acquired title to the disputed tract by adverse possession after the attempted tax sale in 1926, the validity of the tax deed is immaterial.

The parties have stipulated that the facts are as follows:

“1. The United States of American [sic] granted the disputed property to Archie I. Given on June 1, 1898, and the property has remained in the name of Archie I. Given, and his heirs, continuously up to the present time with the property now being in the name of the plaintiffs, Jack Given and Maude Given. The Given family has assessed and paid the taxes on the subject property continuously from the date of the grant in Madison County, Alabama, but not in Jackson County, Alabama. The government patent was duly recorded in Jackson County in 1898 and 5 subsequent conveyances within the Given family effecting [sic] the 200 acre tract were recorded in Jackson County. All conveyances effecting [sic] the disputed portion of the property were recorded in Jackson County, Alabama.
“2. The disputed property is a quarter-quarter section which is part of a 200 acre tract. The plaintiff, Jack Given, lived for more than 10 years on the 200 acre tract and now rents out the house that is located on the tract. Although not located on the disputed 40 acres, the house sits upon the 200 acre tract which has been considered to be the Given tract since 1898. The attached diagram [not set out in this opinion] indicates the lands claimed as the “Given tract.” For the past 20 years, Mr. Given has either lived in the house or has rented out to tenants. Additionally, he has cut timber on the tract, as a whole but not the 40 acre tract, and has annually marked the property lines of the entire tract which includes the 40 acre tract. In marking the boundary line, Mr. Given has cut away the under growth so that one could see from one mark to the other. The boundaries were marked by cutting the trees and painting with orange paint. Mr. Given has continually walked over the property each year and inspected the timber and boundary markers from time to time.
“3. The Jackson County Tax Collector sold the disputed property for taxes in 1926 after having given notice as “Owner-Unknown.” The property was purchased by a predecessor in title of the defendants John Frank Hurt and Mary Texas Garner and has been assessed by them in Jackson County since 19281 The tax deed purports to describe the property as being in Jackson County when in fact the property lies partly in Jackson County and partly in Madison County, Alabama. The Defendants’ deed was duly recorded in Jackson County in 1928.
“4. The parties do further stipulate that EXHIBIT A attached hereto [not set out in this opinion] is a topographical map showing the relationship of the disputed forty-acre tract to the remainder of plaintiffs’ lands, and, to the county-line between Jackson and Madison Counties; and that EXHIBIT B attached hereto [not included in this opinion] is a certified copy of the tax deed from the Jackson County Judge of Probate dated August 17, 1928 pertaining to the disputed forty-acre tract, and is the same deed referred to in Paragraph 3 above.” (See diagram included as appendix to this opinion.)

The parties also have stipulated the damages for any encroachments found in this action. Furthermore, defendants have conceded that the tax deed is invalid insofar as it purports to convey property in Madison County, which is admitted to be outside the jurisdiction of the Jackson County Probate Court.

This cause came to be heard by the trial judge upon the pleadings and stipulations of the parties. The court heard no oral testimony on any matter material on this appeal. “When such is the case, no weight will be given the decision of the trial judge upon the facts, but this court must review the evidence de novo and render such judgment as it deems just.” Prestwood v. Gilbreath, 293 Ala. 379, 384, 304 So.2d 175, 179 (1974). The ore tenus rule of review does not apply to a decision based on such evidence at trial. Kessler v. Stough, 361 So.2d 1048, 1049 (Ala.1978); Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980). “Instead, this court ‘sits in judgment on the evidence.’ ” Mann v. Cherry, Bekaert and Holland, 414 So.2d 921, 923 (Ala.1982), citing Hacker v. Carlisle; McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974); Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950).

We must consider whether the evidence in this case shows that plaintiffs acquired title to the disputed property by prescription or by adverse possession under § 6-5-200, Code 1975. It should be noted that the parties are in agreement that the duration of plaintiffs’ alleged possession of the property is not in issue. Also, there is no dispute as to plaintiffs’ color of title. Hence, we confine ourselves to consideration of the sufficiency of the stipulated facts for the establishment of prescriptive rights in favor of the plaintiffs.

A succinct statement of the requirements for the acquisition of title to property by prescription or by adverse possession under the ten-year statutory period is contained in Calhoun v. Smith, 387 So.2d 821 (Ala.1980). There, we said:

“To obtain land by adverse possession, the claimant must prove ‘possession of the land; openness, notoriety and exclusiveness of possession; hostility toward everybody else in respect of possession; holding possession under claim of right or claim of color to title; and continuity for statutory period of ten years.’ Tanner v. Thompson, 376 So.2d 697, 698 (Ala.1979). These elements must be proven by clear and convincing evidence. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976). It should be noted that the elements necessary to prove ownership under the twenty year prescriptive period are the same as those needed to prove adverse possession under the ten year statutory period; the difference between the two is one of burden of proof. Pendley v. Pendley, 338 So.2d 405, 407 n. 2 (Ala.1976); Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).”

387 So.2d at 823. The dispositive issue here is whether plaintiffs’ acts were a sufficient indication to all the world that plaintiffs claimed ownership of the property in question. In answering this question, we must look collectively to all the possessory acts of the claimants. Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713 (1973); Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962). “Land need only be used by an adverse possessor in a manner consistent with its nature and character — by such acts as would ordinarily be performed by the true owners of such land in such condition.” Hand v. Stanard, 392 So.2d 1157 (Ala.1981). The specific question to be answered then is what acts would ordinarily be performed by the true owners of what the record shows to be rural, wooded land.

Plaintiffs, or their predecessor in title, owned the entire 200-acre tract, including the 40-acre tract in question, before the tax sale that purported to transfer title to the disputed 40 acres. The plaintiffs paid taxes in Madison County on the entire 200 acres, although about 25 acres was located in Jackson County. Even though they did not in fact pay the taxes to the proper authority, they clearly attempted to pay taxes on all the land. This is an act consistent with true ownership of the land.

Plaintiffs lived in or rented out a house on a portion of the 200 acres. As the plaintiffs make no claim of adverse possession to the 40-acre tract where the house sits, the rule of constructive possession, Marietta Fertilizer Co. v. Blair, 173 Ala. 524, 56 So. 131 (1911), does not apply. However, the tract with the house is a part of the 200-acre tract. The maintenance of a house on one part of the 200-acre tract of land is consistent with true ownership of the entire 200 acres. Plaintiffs need not build a residence on each subdivision of the large tract in order to maintain possession of the large tract.

The parties stipulated that plaintiffs also cut timber on the 200-acre tract, but not on the disputed tract. Sporadic cutting of timber is not sufficient to establish possession. Rutland v. Georgia Kraft Co.,

Inc., 387 So.2d 836 (Ala.1980). While the stipulated facts do not include evidence of continuous or persistent cutting, neither do they show that the cutting was sporadic. In Welch v. Smith, 202 Ala. 402, 80 So. 376 (1918), this Court found the following facts sufficient to establish adverse possession: The land at issue was not cleared or fenced, and it adjoined the claimant’s land; it was used by the claimant to obtain firewood and other timbers “just as such unused lands next to a country home are always used.” 202 Ala. at 403. Plaintiffs here are similarily situated. In any case, the cutting of timber is a factor to be considered. Rohrer v. Allen, 415 So.2d 1054 (Ala.1982).

Most importantly, plaintiffs manually marked the entire 200-acre tract, including the 40-acre disputed tract. They did so by cutting trees, marking them with orange paint, and then clearing the undergrowth along the boundary so that the marks could be seen. Plaintiffs only marked the eastern and southern boundaries of the disputed tract because they owned the land adjacent to the western and northern boundaries. On an annual basis, plaintiff, Jack Given, walked over the land to inspect the timber and boundary markers. Marking of boundaries, taken together with other acts, may constitute possession. Young v. Hillyer Deutsch Edwards, Inc., 62 So.2d 859 (La.Ct.App.1953); Whalen v. Smith, 183 Iowa 949, 167 N.W. 646 (1918).

This Court in Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713 (1973), held that the acts of ownership must be considered collectively rather than independently. Taken together, the facts show that the plaintiffs in the present case did all they could reasonably do to show ownership of rural, wooded land. They undisputedly owned the entire 200-acre tract, including the 40-acre disputed tract, before the tax sale. They attempted to properly pay taxes on the entire 200 acres. They maintained a home, cut timber, marked boundaries, and cleared undergrowth so that the boundaries of the 200-acre tract were clearly visible. When viewed collectively, plaintiffs’ acts of possession establish adverse possession, and the trial court’s judgment is due to be affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

ADAMS, J., dissents.

JONES, J., not sitting.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Charles Lewis SCARBROUGH and Sarah J. Scarbrough v. Maureen Raley SMITH.
    82-897.
    Supreme Court of Alabama.
    Jan. 20, 1984.

      Raymond Uhrig, Huntsville, for appellants.
    Ernest L. Potter, Huntsville, for appel-lee.
   FAULKNER, Justice.

Charles and Sarah Scarbrough filed an ejectment action against Maureen Smith in an attempt to recover possession of a 100-by-105-foot parcel in Madison County, Alabama. Mrs. Smith admitted posséssion of the disputed parcel but claimed title to the property by adverse possession. She also claimed that there were errors in the deed through which the Scarbroughs claimed title to the parcel. She asked the trial court to reform the instrument. The trial court heard the ore terms evidence and rendered a judgment in favor of Mrs. Smith on all the issues. The court denied a motion for reconsideration and the plaintiffs appealed. We affirm.

Homer and Lucy Sloan were predecessors in title to the plaintiffs and the defendant. Prior to the Scarbrough conveyance the Sloans owned a 12'/2-acre tract from which four lots had previously been conveyed to persons not involved in this litigation. The Sloans executed a deed on December 16, 1962, purporting to convey the tract to the Scarbroughs except for a one-acre segment in the southeast corner which the grantors retained. See Appendix “A”. The retained segment was apparently mis-described in the deed. The description of the segment purportedly retained by the Sloans included a portion of a public highway, Green Mountain Road, and excluded a dwelling which the Sloans continued to occupy after the conveyance. See Appendix “B”.

The Sloans continued to live in or rent out the house until October 7, 1971, when they executed a deed purporting to convey the house, along with the disputed property, to Donald and Nora Wilcox. See Appendix “C”. The Wilcoxes mortgaged to the Bank of Huntsville the ½ acre described in their deed from the Sloans, and the Bank later foreclosed on the property. On October 7, 1973, the bank gave a deed to the defendant, Mrs. Smith, purporting to convey the lh acre to her. Mrs. Smith continued to occupy the house until the time of trial.

No natural boundary existed between the house and the property in question. The parcel had trees growing on it. It was without underbrush and the ground was clearly visible. Its western boundary was marked by a row of forsythia bushes and an old fence. There was an old, unkept fence along a portion of the northern boundary. The fences were apparently in existence when the 1962 deed was executed.

Mrs. Smith introduced evidence of various uses to which she and her predecessors in title had put the property. The Sloans or their tenants planted a garden on a portion of the disputed parcel each year from 1962 through 1967. While the Wil-coxes owned the house they kept chickens and hogs on the property. Mrs. Smith raised chickens on the property “off and on” from 1974 until 1980. Her son used the property to play on and had a rope swing on it. The septic tank which served the house was also located in the disputed area.

Mr. Scarbrough did not directly contradict the evidence proffered by the defendant. He testified that he had never seen a garden on the disputed tract. Nor had he ever observed hogs or chickens being kept there. He knew that the septic tank was on the parcel and he stated that he “had no objection” to it being there. Mr. Scarb-rough could not recall whether he had ever been on the property in dispute prior to September 1981, although he' testified that he had walked down Sloan Road and been “beside” the property many times.

There was a dispute in the evidence as to who had assessed the property for taxes. The confusion stemmed from ambiguous descriptions in some of the tax records. The chief clerk of the tax assessor’s office concluded that, based on the official plat books kept by the tax assessor’s office, Mrs. Smith and her predecessors in title had assessed the disputed property for taxes continuously since 1968.

The trial court found that the 1962 deed contained errors which were the result of a mutual mistake. It concluded that the parties intended for the Sloans to retain ownership of the disputed parcel and that the Sloans never intended to convey any property abutting Sloan Road to the plaintiffs. The court also ruled in favor of the defendant on her adverse possession claim. It found that the parties were coterminous owners of real property; that Mrs. Smith and her predecessors in title had been in actual, open, notorious, hostile, exclusive, and continuous possession of the disputed parcel for more than ten years prior to the action; and that the property had been assessed for ad valorem tax in the names of Mrs. Smith and her predecessors in title for over ten years prior to commencement of the action. It ruled that the defendant was entitled to relief on her counterclaim for adverse possession, § 6-5-200, Code of Alabama (1975), and that the plaintiffs’ action was barred by the statute of limitations, Section 6-2-33(2), Code of Alabama (1975).

On appeal, the plaintiffs conceded that the property which the Sloans sought to retain was misdescribed in the 1962 deed. They argued, however, that the trial court failed to reform the instrument in accordance with the parties’ intentions at the time of the conveyance. The plaintiffs also argued that Mrs. Smith’s evidence was insufficient to establish title to the disputed property by adverse possession.

Of course, any time a trial court has heard evidence presented ore terms and resolves conflicting questions of fact in favor of one of the parties, its findings will not be disturbed on appeal unless they were clearly erroneous or manifestly unjust. Evidence in adverse possession cases is especially difficult to weigh from the vantage point of an appellate court. Witnesses often testify with reference to exhibits and make gestures not capable of preservation in the record. The following excerpt from the case at bar is typical:

“A. I am not sure if I follow you. In other words, you are saying come 315 to this point, which if you were assuming that was the direction of it, in other words, that the right angle was in error in the deed, and you assumed you are coming 315 from here, I would assume that the whole tract was pulled back this direction.
“Q. All right.
“A. As the same as the uniformity of these particular lands here.
“Q. It would follow more or less the fence row?
“A. Right. The line would follow the fence row and, you know, there would be no overlap over into here. If that was the intent of the original deed.
“Q. Okay.
“A. And not of this nature. Right.
“Q. Okay. And it would still exclude this area right here as being in with either one of these calls?
“A. Right.
“Q. And this is a new fence running through here?
“A. I believe that’s correct. It’s been a while.
“Q. Did you find anything running along this line anywhere besides this fence?
“A. No, I don’t believe so.”

The presumption of correctness normally attending findings in an ore terms case is, therefore, especially strong in adverse possession cases. Where the trial court makes findings of fact in order to establish a land line, the court’s findings will be sustained if there is any credible evidence to support the findings. Pinson v. Veach, 388 So.2d 964, 968 (Ala.1980).

We appreciate the diligence with which plaintiffs’ counsel presented their ease and we have found the maps illustrating the various descriptions to be most helpful. We deem it unnecessary, however, to discuss the question of whether the court reformed the deed in accordance with the parties’ intentions, in light of the ample evidence supporting the ruling that Mrs. Smith acquired title to the disputed parcel by adverse possession.

If a coterminous landowner holds actual possession of a disputed strip under claim of right, openly and exclusively for a continuous period of 10 years, believing that he is holding to the true line, he will acquire title to that line, even though the belief as to the correct location of the line originated in a mistake. Hayes v. Cotter, 439 So.2d 102 (Ala.1983).

There was also ample evidence to support the finding that Mrs. Smith and her predecessors in interest had assessed the property for taxes for over ten years prior to the commencement of the action. She would, therefore, be entitled to prevail even if the parties were not coterminous landowners. Section 6-5-200(a)(2), Code of Alabama, 1975.

The judgment is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.

APPENDIX A

APPENDIX B

APPENDIX C


author: ADAMS, Justice.

text:
    Paul PIERSOL v. ITT PHILLIPS DRILL DIVISION, INC., a Corporation.
    82-702.
    Supreme Court of Alabama.
    Jan. 27, 1984.

      R. Timothy Morrison of Emond & Vines, Birmingham, for appellant.
    Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellee.
   ADAMS, Justice.

This is a warranty action initiated on September 4, 1980, by appellant, Paul Pier-sol, in the Circuit Court of Jackson County for personal injuries sustained by him on January 13, 1977, while operating a rotary hammer manufactured by appellee, ITT Phillips Drill Division, Inc. (hereinafter ITT). The circuit court concluded that the action was barred by the four-year statute of limitations in § 7-2-725, Code 1975, and granted ITT’s motion for summary judgment.

The two issues raised on this appeal are as follows:

1. Whether the trial court properly allowed ITT to amend its original answer by adding the affirmative defense that the action was barred by the four-year statute of limitations?
2. Whether the trial court committed reversible error in granting ITT’s motion for summary judgment?

We conclude that the trial court correctly permitted ITT to amend its answer, but erred in granting the motion for summary judgment because there exists a genuine issue of material fact concerning the date of delivery of the rotary hammer and the initiation of the running of the statute of limitations.

The relevant facts in this case are as follows:

On or about January 13, 1977, appellant was employed by the Tennessee Valley Authority at the Bellefonte Nuclear Project in Hollywood, Alabama. At that time and place, appellant was operating a Redhead Rotary Hammer, Standard 747 drill manufactured by ITT. Appellant contends that the drill malfunctioned, causing him to be thrown from a ladder and to sustain personal injuries. In his complaint, appellant alleged, among other things, that ITT breached implied warranties concerning the design, manufacture, distribution, or sale of the drill.

On April 5, 1982, nineteen months after the initiation of the action, ITT filed a motion for summary judgment, alleging that it was entitled to a judgment as a matter of law by virtue of the four-year statute of limitations in § 7-2-725, Code 1975. Thereafter, on July 28, 1982, ITT filed an amended answer, which, for the first time in a pleading, raised the four-year statute of limitations as an affirmative defense. On August 9, 1982, appellant filed a motion to strike ITT’s amended answer, contending that ITT had waived the right to assert the affirmative defense by failing to plead it in either its original answer or motion to dismiss.

In support of its motion for summary judgment, ITT attached the affidavit of Fred Primo, construction management assistant for the Tennessee Valley Authority. Primo indicated that “TVA purchased 18 of these 747 drills in December of 1974, and that the 18 drills ... are the only drills of this type which have been purchased by .TVA or used by Bellefonte prior to Paul Piersol’s injuries in 1977.” In his deposition, taken September 9, 1981, appellant testified that on the date of the occurrence made the basis of this lawsuit, he checked out the drill involved, which was in a partially sealed package. He further testified that he was the first person to use the drill, and that the drill was “brand new.”

I.

The trial court opined, and we agree, that where no actual prejudice to the opposing party is shown, and no undue delay is demonstrated, a court may permit the amendment of the answer to include a defense of the running of the period of the statute of limitations, though Rule 8(c) of the Alabama Rules of Civil Procedure requires such a defense to be pleaded as an affirmative defense. Freeman v. Blue Mountain Industries, 395 So.2d 1049, 1051 (Ala.Civ.App.1981). Accord, Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d 1254, 1257 (Ala.1982). Finding no undue delay or actual prejudice, the trial court allowed ITT’s amendment to its answer. We think the allowance was properly within the sound discretion of the trial judge. Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d at 1257. See, Crescent Transit, Inc. v. Varnes, 399 So.2d 233, 235 (Ala.1981), commenting on Rule 15(a), A.R. Civ.P.

II.

Having determined that the affirmative defense of the statute of limitations has been raised appropriately by ITT, we now address the correctness of the grant of summary judgment based on that defense. The question before the court is whether there is a genuine issue of material fact as to the date of delivery of the drill that allegedly caused appellant’s injuries. The date of delivery is significant, because it is delivery of the equipment that activates the running of the four-year limitations period.

Having carefully studied the record of this case, we think that appellant’s deposition testimony, synopsized above, establishes a doubt concerning the time of the delivery of the drill in question. Though Fred Primo’s testimony creates a strong inference that the drill which caused appellant’s injuries was among those drills purchased by ITT in 1974, appellant’s testimony unquestionably contains the scintilla of evidence in contradiction thereto that makes the time of delivery a genuine issue of material fact. Bon Secour Fisheries, Inc. v. Barrentine, 408 So.2d 490, 491 (Ala. 1981) (Torbert, C.J., concurring specially); Watkins v. St. Paul Fire & Marine Insurance Co., 376 So.2d 660, 662 (Ala.1979).

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

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, AL-MON and EMBRY, JJ.,. concur.


author: PER CURIAM.

text:
    Robert B. FRENCH, Jr. v. STEEL, INC.
    82-940.
    Supreme Court of Alabama.
    Jan. 27, 1984.

      Robert B. French, Jr., Fort Payne, pro se.
    Lee Clyde Traylor, Fort Payne, for appel-lee.
   PER CURIAM.

This case is an attempted appeal from an order which is nonappealable. Therefore, we dismiss.

The case arose out of a judgment rendered in Louisiana against appellant French and other defendants in the Louisiana case. The successful plaintiff in that case recorded the judgment in the Probate Court of DeKalb County. The original defendants filed this suit in DeKalb County to expunge the judgment from the records in the office of the Judge of Probate. The plaintiff/judgment holder in the Louisiana case filed an answer and a counterclaim which sought enforcement of the Louisiana judgment.

This case was assigned to Judge W.G. Hawkins. Judge Hawkins recused himself after hearing the case, and Retired Judge David R. Archer was assigned to complete the matter.

On November 5,1980, Judge Archer entered an order denying the relief sought by the original defendants in the Louisiana case. He amended this order on November 26, 1980, by awarding the original Louisiana plaintiff a judgment of $30,812.27 against those original defendants. Judge Archer had before him at the time he entered this judgment a duly authenticated copy of the pleadings and orders entered in the Louisiana case. These documents show that French, a defendant in those proceedings, appeared in Louisiana and litigated the issue of jurisdiction in personam in that forum. Therefore, it was apparent and uncontradicted that his defense to the counterclaim in this proceeding was res judicata and constituted a collateral attack on the Louisiana judgment, forbidden by the full faith and credit clause of the Constitution of the United States. Thus, Judge Archer’s judgment of November 26, 1980, awarding $30,812.27 in the counterclaim based upon the Louisiana judgment, was correct and final.

Thereafter on December 4, 1980, French moved the court for a new trial or rehearing. The other original defendants filed a motion for new trial on December 12, 1980. On January 19, 1981, the motions for new trial were heard, and the court ordered that the cause be taken under consideration within the next sixty days and that the parties file all legal briefs and exhibits with the court within thirty days. The motions for new trial were overruled as a matter of law by operation of A.R.Civ.P. 59.1 ninety days after December 12, 1980, i.e., March 12, 1981.

On April 7, 1981, Judge Archer entered an order purporting to amend, vacate, and void his order and judgment of November 26, 1980. This order was void, because the court had no jurisdiction to enter it.

Steel, Inc., appellee in this present ease and plaintiff in the original Louisiana suit, filed a motion on May 1, 1981, to vacate the April 7, 1981, order of the court.

On April 28, 1982, Judge Hobdy G. Rains was appointed to handle this motion, because Judge Archer had moved out of the State of Alabama.

Judge Rains entered an order on January 20, 1983, holding that the court had lost jurisdiction of the cause prior to the entry of Judge Archer’s order on April 7, 1981, and that the April 7, 1981, order was of no force and effect; he held that the court was without jurisdiction on April 7, 1981, to make and enter any additional orders which would alter, modify, or set aside the judgment theretofore entered in the cause. He held that Judge Archer’s original order, in favor of the defendant (Steel, Inc.), dated November 5,1980, and amended on November 26, 1980, was a valid order, and that the order entered by Judge Archer on April 7, 1981, was void, and that April 7 order was held for naught. We agree with Judge Rains.

Under A.R.Civ.P. 59.1, no post-trial motion shall remain pending in the trial court for more than ninety days unless it is with the express consent of all parties, which consent shall appear of record, or unless it is extended by the proper appellate court. The rule also states that a failure to rule on such a motion within the ninety-day period shall constitute a denial of the motion as of the end of the ninety-day period.

The court’s order of January 19, 1981, did not act to extend the time period set out in A.R.Civ.P. 59.1, and on the expiration of the ninety-day period, the motions for new trial were denied, as a matter of law, and with this denial the jurisdiction of the trial court lapsed, and the time for appeal began to run. This appeal was filed on June 24, 1983.

In his affidavit accompanying this appeal, Judge Archer states that his order of January 19, 1981, was an attempt to grant a motion to reconsider. Rule 4, A.R. A.P., provides that a motion under Rule 59, A.R.Civ.P., will toll the running of the forty-two days for appeal. Rule 59.1, A.R. Civ.P., provides that a motion under Rule 59 for a new trial must be ruled on within ninety days or else it is automatically denied. But the ruling that Rule 59.1 requires to be entered within ninety days is one which (1) denies the motion, or (2) grants the motion. Rule 59.1 does not anticipate, and cannot accommodate, an order within the ninety days by which the judge states an agreement to reconsider the judgment and to decide later whether to grant a new trial. Therefore, Judge Archer’s original order, that of November 5, 1980, as amended November 26, 1980, is the valid and final judgment in this case. It is from that judgment that an appeal should have been taken. No appeal was taken from that judgment, and the time for filing such an appeal has lapsed.

No post-trial motions other than the motions for new trial were filed. Therefore, when those motions for new trial were overruled by the operation of Rule 59.1, A.R.Civ.P., the court, as Judge Rains noted, lost jurisdiction. His observation, correct as it is, is not an appealable order. Therefore, the appeal is due to be, and it hereby is, dismissed.

APPEAL DISMISSED.

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

       We are not called upon in this case to determine whether the filing of the second motion for new trial on December 12, 1980, started a new ninety-day period for the pendency of French’s motion that had been filed eight days earlier. Under the facts of this case, French’s appeal would be untimely even assuming the lime for ruling on it had begun to run anew upon the filing of the other defendants' motion. Cf., Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426 (Ala.1983), and Ex parte Cleveland Consolidated, Inc., 435 So.2d 1285 (Ala.1983).


author: EMBRY, Justice.

text:
    Dewayne CAGLE v. William S. LAWSON.
    82-1036.
    Supreme Court of Alabama.
    Jan. 27, 1984.
    J. William Thomason, Bessemer, for appellant.
    Jerry W. Jackson, Haleyville, for appel-lee.
   EMBRY, Justice.

I

Plaintiff, Dewayne Cagle, appeals from the trial court’s order of dismissal based upon a lack of in personam jurisdiction over defendant. We reverse.

Defendant, Williams S. Lawson, is a Mississippi resident and is licensed to practice law in that state. He agreed with Lanny Vines, an Alabama attorney, to aid in the prosecution, in Mississippi, of a personal injury suit on behalf of Dewayne Cagle, an Alabama resident. Allegedly at Lawson’s urging, Cagle fired Vines and contracted with Lawson for representation in said suit. This occurred while Lawson was in Alabama for the purpose of conferring with Cagle regarding his lawsuit.

Cagle now sues Lawson for fraud, misrepresentation, ■ professional negligence, and breach of warranties in connection with that contract and in connection with Lawson’s prosecution of Cagle’s claim.

II

The issue before this court is whether this state can secure in personam jurisdiction over Lawson. Lawson contends that this factual situation does not meet the “minimum contacts” mandate of Rule 4.2(a)(2)(I), ARCP. That rule provides:

“(2) Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(I) otherwise, having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.”

Recently, in View-All, Inc. v. United Parcel Service, 435 So.2d 1198 (Ala.1983), this court, quoting Professor Moore, summarized the correct constitutional requirements in this area:

“ ‘The first requirement is that there must be some minimum contact with the state which results from an affirmative act of the defendant. But it is not necessary that the defendant have been in the state or that it have had agents there
“ ‘In addition to some minimum contact with the state, it must be fair and reasonable to require the defendant to come into the state and defend that action.... [I]n determining what is fair and reasonable, the court may consider factors associated with the doctrine of forum non conveniens, but need not give them overriding importance....
“ ‘Based as they are on notions of fairness and reasonableness, the Supreme Court decisions do not permit a simple generalization of the rule pertaining to in personam jurisdiction over foreign corporations ....
“ ‘If there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary to meet the fair and reasonable test.’
“2 J. Moore, Federal Practice, Para. 4.25, pp. 4-258 through 4-267 (2d Ed. 1982).”

435 So.2d at 1201.

Where, as here, there is a minimum of contacts, and the cause of action arises out of the contacts, we consider the quality and nature of the activity in this state in order to determine whether maintenance of the suit will offend “traditional notions of fair play and substantial justice.” Williams v. Barrington Ford, 402 So.2d 903 (Ala.1981). Also relevant are the foreseeability by the defendant of being sued in Alabama as a result of his activity in this state and the level of inconvenience to the defendant in defending the suit.

The nature of the transaction here presented indicates Lawson had sufficient “minimum contacts” with Alabama to make it reasonable to require him to defend this action in an Alabama forum. The parties agree Lawson made four visits to Alabama to confer with Cagle concerning the personal injury suit filed on his behalf in Mississippi. Cagle’s complaint alleges a contract was entered into as a result of one of those visits. He contends Lawson made a number of fraudulent representations during that visit regarding Vines’s inability to pursue a personal injury action successfully before a Mississippi court. Lawson, by deposition, states he provided legal representation for Cagle after Vines had returned Cagle’s file to Cagle. He alleges, however, that he assumed Vines was still involved with the case.

Cagle presented evidence, also by deposition, that Lawson contacted him by phone and by mail in Alabama on a number of occasions for the purpose of communicating regarding the lawsuit filed in Mississippi.

There is evidence that Lawson solicited a client in Alabama and that he provided a service which involved frequent trips to Alabama and communications with his client in Alabama. Under this particular factual situation, we think Lawson could surely anticipate falling within this state’s jurisdiction. The foreseeability is critical to our analysis. Hoffman v. Chandler, 431 So.2d 499 (Ala.1983).

Furthermore, it is relevant that defending this suit in Alabama will not provide a substantial inconvenience to Lawson. Semo Aviation, Inc. v. Southeastern Airways Corp., 360 So.2d 936 (Ala.1978). The suit was filed in Winston County, Alabama. Double Springs is the seat of Winston County. Lawson resides in Tupelo, Mississippi. We judicially note that Tupelo and Double Springs are approximately 75 miles apart. We find that distance not so great as to substantially inconvenience Lawson as defendant.

Because of the quality and nature of Lawson’s activities in Alabama, the resultant foreseeability by Lawson of being required to defend an action in this state, and the lack of inconvenience of travel between Lawson’s home and Double Springs, Alabama, we are convinced it is reasonable to require Lawson to defend this action in Alabama. We therefore hold that Lawson did have the requisite minimum contacts with Alabama necessary to permit the assertion of this state’s jurisdiction over him. The case is due to be, and it is, hereby, reversed and remanded for proceedings in accordance with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


author: WRIGHT, Presiding Judge

text:
    KIMBERLY-CLARK CORPORATION, a Corporation, v. Ralph P. EAGERTON, Jr., Commissioner of Revenue.
    Civ. 3819.
    Court of Civil Appeals of Alabama.
    July 13, 1983.
    Rehearing Denied Aug. 24, 1983.
    Certiorari Denied Feb. 3, 1984 Alabama Supreme Court 82-1199.

      Warren H. Goodwyn and William E. Shanks, Jr. of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Acting Chief Counsel, and Bill Thompson, Asst. Counsel, State Dept, of Revenue, Montgomery, for appellee.
    E.T. Brown, Jr., Fournier J. Gale, III, and Roy J. Crawford of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Associated Industries of Alabama, Inc.
   WRIGHT, Presiding Judge

This is a corporate income tax case.

Appellant, Kimberly-Clark Corporation (taxpayer), appeals the order of the trial court denying its petition for a writ of mandamus requiring the Commissioner of Revenue of the State of Alabama to refund to the taxpayer amounts representing overpayment of income tax for the years 1974, 1975, 1976 and 1977.

The facts of the case, as stipulated by the parties in the court below, are as follows:

“1. The Taxpayer is a corporation organized and existing under the laws of the State of Delaware, with its principal executive office in Neenah, Wisconsin, and is qualified to do business in the State of Alabama.
“2. This is an action for the recovery of income taxes paid by the Taxpayer for the years 1974-1977. This Court has jurisdiction of this action under the provisions of § 40-18-43, Code of Alabama 1975.
“3. As a foreign corporation for State of Alabama income tax purposes, the Taxpayer apportioned its income to the State of Alabama in accordance with the three-factor formula used in Department of Revenue Regulation 31.2 which regulation is applicable to foreign corporations with multi-state operations.
“4. Beginning 'in 1973, the Taxpayer embarked on a construction program designed to bring its pollution control facilities in the state of Alabama into compliance with this State’s air and water quality standards established in 1972. The
Taxpayer, in the course of a five year period, spent the following amounts for pollution control facilities in the State of Alabama:
Year Amount
1973 $ 38,358
1974 1,415,052
' 1975 2,103,858
1976 9,753,615
1977 5,935,972
Pursuant to § 40-18-35(12), Code 1975, the taxpayer elected to deduct in full the amount of the foregoing expenditures for pollution control facilities as incurred in each year from income apportioned to the State of Alabama.
“5. For federal income tax purposes the Taxpayer capitalized the foregoing amounts expended for pollution control facilities in the year such facilities were placed in service and deducted as an allowance for depreciation of such facilities the following amounts:
Year
1974 $ 110,034
1975 353,430
1976 1,211,439
1977 2,252,838
“6. Having elected under § 40-18-35(12) to deduct in the year expended the full amount spent for such pollution control facilities, the Taxpayer is not allowed depreciation deductions with respect to such facilities. To make an adjustment for depreciation deductions for such facilities, the Taxpayer added the foregoing amounts allowed as depreciation deductions for federal income tax purposes to apportionable income in the Taxpayer’s State of Alabama corporation income tax returns for these four years.
“7. The Alabama Department of Revenue disagreed with the Taxpayer’s method of adding back the depreciation deductions described in paragraph 6 above and added the depreciation deductions to the Taxpayer’s income apportioned to the State of Alabama for corporation income tax purposes. The Taxpayer paid the additional tax and interest resulting from the Department of Revenue’s adding such depreciation deductions to the Taxpayer’s income apportioned to Alabama rather than to the Taxpayer’s apportionable income.
“8. The Department of Revenue had no regulation concerning § 40-18-35(12) until 1979. Since 1973, it has been the Alabama Department of Revenue’s position in interpreting § 40-18-35(12) to add back such depreciation deductions for pollution control facilities to a taxpayer’s income apportioned to the State of Alabama. Various taxpayers have disagreed with the Department of Revenue’s interpretation of § 40-18-35(12).
“9. In conformance with the provisions of § 40-18-43, Code 1975, the Taxpayer timely filed an Application for Refund of Income Tax for each of the four tax years in the amounts stated below:
Year Tax Interest
1974 $ 3,167.00 $ 475.05
1975 $10,394.00 $ 935.46
1976 $34,866.00 $ —
1977 $82,474.00 $2,057.00
The Alabama Department of Revenue took no action with regard to this request for refund.”

Section 40-18-35, Code 1975, provides in pertinent part:

“In computing the net income of foreign corporations doing business in this state subject to the tax imposed by section 40-18-31, there shall be allowed as deductions the items described in the following numbered subdivisions of this section, but only if, and to the extent that, such items are referable to or arise in connection with income of such corporations arising from sources within the state of Alabama; the proper apportionment and allocation of deductions of such foreign corporations with respect to the income arising from sources within and without the state of Alabama shall be determined under the rules and regulations prescribed by the department of revenue; provided, that in the case of foreign corporations doing business partly within and partly without Alabama where income is apportioned and allocated to Alabama the expense incurred by such corporation in connection with earning such income shall be apportioned to Alabama in such manner as shall fairly reflect the net income of the corporation attributable to its operations in Alabama; provided, that none of the deductions allowed by subdivision (12) of this section shall be subject to any such apportionment or allocation and all thereof shall be allowed in full, any provisions thereof to the contrary notwithstanding. Subject to the limitations contained in the preceding sentence, there shall be allowed as deductions in computing the net income of corporations:
“(6) A reasonable allowance for the exhaustion, wear and tear of property used in the trade of business, including a reasonable allowance for obsolescence;
“(12) All amounts invested during the taxable year in all devices, facilities or structures and all identifiable components thereof or materials for use therein, used or placed in operation in the state of Alabama, or to be used or placed in operation in the state of Alabama, acquired or constructed primarily for the control, reduction or elimination of air or water pollution; provided, that in lieu of deducting such amounts, the corporation may elect to amortize all such amounts over such period, not exceeding the useful life of devices, facilities or structures for which such amounts were expended, as it specifies in its tax return respecting the taxable year during which such amounts were expended, in which case it shall be entitled to appropriate deductions for the taxable years so specified; and provided further, that the taking of any deduction authorized by this subdivision shall be optional with the corporation; and that if any such deduction is taken with respect to such devices, facilities or structures, such corporation shall not be permitted any allowance for depreciation or obsolescence thereof otherwise allowable under this section.”

As counsel for amicus curiae, Associated Industries of Alabama, Inc., points out in brief, the controversy involved in this appeal stems from the fact that the Alabama Foreign Corporation Income Tax Return (Form 20-F) utilizes as its beginning figure the amount shown on line 28 of the corporation’s United States Corporation Income Tax Return (Form 1120). The amount shown on line 28 of a corporation’s federal form reflects deductions taken for depreciation, including depreciation on air pollution control facilities. This deduction cannot be taken under Alabama law when a deduction is taken under § 40-18-35(12). Thus, in order to comply with § 40-18-35(12), a corporation must “add back” the amount deducted for depreciation on its federal form when reporting income on the state form.

As recognized by the parties in the stipulation of the facts, a foreign corporation computes its Alabama income tax by allocating to Alabama a percentage of its total business income. Alabama Income Tax Regulation 31.2(9). The issue on appeal, as it was in the court below, is whether the amounts deducted on the federal form and otherwise allowable as depreciation deductions for pollution control facilities in the state of Alabama are, for purposes of determining the taxpayer’s Alabama corporation income tax liability, to be added to apportionable income (income before application of the apportionment fraction) or to apportioned income (income after application of the fraction).

The Commissioner takes the position that the deductions must be added back to apportioned income; otherwise, the foreign corporation receives a permanent tax avoidance of the amount deducted under § 40-18-35(12). We find no authority in § 40-18-35 in support of this position. On the contrary, it seems clear from the language of the statute that a permanent tax avoidance is exactly what the legislature intended.

It is obvious that the legislature intended that paragraphs 6 and 12 of § 40-18-35 contain two separate deductions. The use of the deduction in paragraph 12 precludes the use of the deduction in paragraph 6. Section 40-18-35(12) contains no provision to recapture the deduction it grants; there is no “add back” provision. As counsel for amicus curiae so ably points out, if the Alabama form required an independent itemization of deductions, rather than using the income amount reported on the federal form, there would be no “add back.” The deduction simply would not be taken in computing apportionable income.

Essentially, the position taken by the Commissioner would remove an amount from income before application of the apportionment formula, and then return the amount to income after application of that formula. This is in direct violation of § 40-18-35, which provides that all expenses incurred by foreign corporations in connection with earning Alabama income “shall be apportioned to Alabama in such manner as shall fairly reflect the net income of the corporation attributable to its operations in Alabama.” The only exception to that provision is the deduction allowed in paragraph 12.

The position of the Commissioner confuses paragraph 6 with paragraph 12. The order of the trial court shares this confusion:

“The Court concludes if election is made under § 40-18-35(12), Code 1975, the amount already claimed as depreciation must be added back to income; these additions must be included in apportioned income since the depreciation came directly from apportioned income.”

The depreciation being “added back” is paragraph 6 depreciation — not paragraph 12 depreciation. Since paragraph 6 depreciation comes directly from apportionable income, it should be “added back” to appor-tionable income.

In interpreting a statute, it is the court’s duty to ascertain and give effect to the legislative intent as expressed in the words of that statute. Winstead v. State, 375 So.2d 1207 (Ala.Civ.App.), cert. denied, 375 So.2d 1209 (Ala.1979). It was obviously the legislature’s intent in enacting § 40-18-35(12) to give to corporations a tax incentive to encourage investment in pollution control facilities. The circuit court’s interpretation substantially reduces the incentive granted by the legislature, and is contrary to the plain meaning of the words of the statute. See Gulf Stevedore Corp. v. Rabren, 286 Ala. 482, 242 So.2d 386 (1970). We therefore reverse and set aside the judgment of the trial court and remand to that court with direction to enter judgment in favor of the taxpayer for the amount of tax heretofore paid and due to be refunded. The trial court is thereafter directed to require the department of revenue to certify to the comptroller the amount to be refunded as provided in § 40-18-43, Code of Alabama 1975.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    Mary Alice WILLIAMS v. Charles L. WILLIAMS.
    Civ. 3966.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1984.

      Warren Rowe of Rowe, Rowe & Sawyer, Enterprise, for appellant.
    Charles N. Reese of Reese & Reese, Da-leville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The wife sought a divorce on the ground of incompatibility. After an ore tenus trial the circuit court granted the divorce and divided the property of the parties. The wife’s only issue upon appeal is that she contends that her award of property was inequitable.

In viewing the record with the attendant presumptions which are accorded the trial court’s action, the following pertinent evidence is revealed.

The marriage lasted for thirty-one years. The husband is fifty-one years of age and the wife is fifty-eight. Good health is enjoyed by both except for some foot trouble. The parties had one child, who is now an adult.

They recently sold a plumbing shop and each received $7,500 from the sale proceeds.

The husband has constantly worked and frequently held two jobs at the same time. He always supported the family. The wages of the husband constituted the source of all of the property owned by the parties. Apparently, the wife was a good housewife. After their separation the wife became employed for the first time since their marriage.

Assets at the end of the marriage, other than the moneys received from the sale of the shop, consisted of a vacant lot worth about $4,500, a 1974 Caprice automobile, a 1976 one-ton truck, a bass boat, nice furniture, and their home. The three thousand square foot brick home was constructed by the husband. Their house mortgage has a present balance of $6,300. That residence consists of a living room, dining room, large den, game room, kitchen, three bedrooms, three baths, and a garage. The husband testified that the home was worth around $110,000.

The trial court ordered that the residence of the parties be sold at a private negotiated sale for no less than $105,000, with the mortgage indebtedness against it and the sale expenses to be paid from the sale proceeds. Sixty percent of the net balance was ordered paid to the wife and forty percent to the husband. Pending the sale, the wife was awarded the use of the residence and furniture, with the husband being required to currently maintain the mortgage debt and home insurance. The parties were directed to equitably divide the furniture. The wife was awarded the Caprice car and the husband evidently received the vacant lot, truck, and boat.

Certain well-known and oft-applied legal principles govern our decision in this matter. While a division of the property of the parties in a divorce case must be equitable according to the circumstances of the case, it need not be equal. A wide discretion is given to the trial court in making a property division. On appeal of divorce cases which were personally heard by the trial court, we are not allowed to alter the trial court’s division of the property of the parties unless it was unsupported by the evidence or was palpably wrong. Hale v. Hale, 489 So.2d 160 (Ala.Civ.App.1983).

We have studied the entire brief record in this case. The trial court did not abuse its discretion. An equitable property division was made — in fact, the wife received a greater award of property than did the husband. The evidence supports the decision of the trial court, which was neither unjust nor palpably wrong. We affirm the judgment of the trial court.

The foregoing-opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Don J. MATTA v. STATE of Alabama.
    6 Div. 222.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    R. David McDowell, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Don J. Matta appeals from the denial of a habeas corpus petition by the circuit court without conducting a hearing on the petition in question.

Matta avers that he lost 90 days “good time” by virtue of insubordination which was a violation of Rule 13. The petitioner avers that he was on work release and, in fact, since the petition has been denied by circuit court without a disciplinary hearing, petitioner has been restored to work release.

I

The problem confronting this court on appeal is that the record does not contain sufficient information for a thorough review of the trial court’s denial of the appellant’s habeas corpus petition. All that is contained is simply the appellant’s sworn petition, a motion to dismiss filed by the State and an order granting same, without conducting a hearing or requiring an answer or return by the authorities who hold the appellant in custody. It should be remembered that when a party is on work release he is still in custody.

The critical omission in the record before us is the “written statement reflecting the reasons and conclusions” upon which the disciplinary board based its findings. There is not even an attached “synopsis” in this record.

II

The correct method for challenging the decision of a disciplinary board is by petitioning the appropriate circuit court through a “Writ of Habeas Corpus,” Williams v. Davis, 386 So.2d 415 (Ala.1980).

Moreover, there is no showing by the State in this record that the requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) have been complied with. See also Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981).

Since there is an insufficient basis to determine whether or not the circuit court properly denied appellant’s habeas corpus petition, we have no alternative but to remand this cause with directions that an appropriate hearing be conducted with the trial court to develop the evidence and the appellant to be represented by counsel to establish whether or not the appellant’s claimed loss of the 90 day’s good time credit was proper. See also, Bland v. State, 441 So.2d 122 (Ala.1983).

REMANDED WITH DIRECTIONS FOR A HEARING.

Reporter’s note: On February 23, 1984, the court entered the following order:

“Appeal dismissed. Appellant no longer in custody.”


author: TYSON, Judge. BOWEN, Presiding Judge,

text:
    Joe Crawford SMITH v. STATE of Alabama.
    1 Div. 703.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.

      Arthur Leslie, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The appellant was convicted on March 18, 1982, of sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama, 1975. He was sentenced to ten years in the penitentiary, suspended, and placed on probation for a term of five years.

On June 12, 1983, the appellant was arrested and charged with sexual abuse in the first degree. On June 28, 1983, the district attorney moved to revoke appellant’s probation. On this same day, appellant was served by the Sheriff of Mobile County, Alabama, with a copy of the “Notice of Probation Revocation Hearing”, which had attached to it appellant’s probation officer’s “Report on Delinquent Probationer”, also filed on June 28, 1983.

■ The record shows due notice to this appellant of the probation revocation hearing, that he was represented by counsel at said hearing, and that appellant was afforded the opportunity to call and cross-examine witnesses. After the hearing on July 5, 1983, the trial court granted the motion to revoke probation and set aside the suspension of his sentence. From said revocation of probation, appellant prosecutes this appeal.

I

Appellant’s first contention is that he was not afforded minimal due process as required in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Appellant specifically argues that there is no “written statement by the trial judge as to the evidence relied on and reasons for revoking probation.” This court notes that in the original record, the trial judge failed to set out the reasons and the evidence relied on for revoking appellant’s probation. If this were the complete record, it would not comply with the requirements of Armstrong. See, Taylor v. State, 405 So.2d 55 (Ala.Cr. App.1981) [no written statement as to evidence and reasons]; Harden v. State, 396 So.2d 1076 (Ala.Cr.App.1980) [no written statement as to evidence and reasons]; Borst v. State, 377 So.2d 3 (Ala.Cr.App.1979) [no written statement as to evidence and reasons]; Austin v. State, 375 So.2d 1295 (Ala.Cr.App.1979) [proceedings “wholly deficient” under Armstrong ]; Levert v. State, 373 So.2d 1263 (Ala.Cr.App.1979) [insufficient evidence, no written statement as to evidence and reasons].

However, the trial judge in this case supplemented the original record with his written statement conforming to the requirements of Armstrong, supra, as is allowed. A.R.A.P. 10(f). Since this is the state of the record before us, this court must decide any reviewable question by what the record contains, not by what it had before the supplemental was filed. Ballou v. State, 365 So.2d 352 (Ala.Cr.App.1978); Hollins v. State, 415 So.2d 1249 (Ala.Cr.App.1982). We have carefully reviewed the entire record, and find the requirements commanded by Armstrong have been fully complied with by the trial court.

II

The second issue raised by the appellant is whether there may be a revocation of probation for an offense which has been subsequently nolle prosequi. This court has previously held that a probation revocation hearing is not criminal in nature, and therefore neither formal procedures nor formal rules of evidence need be followed by the trial court. Armstrong, supra; Thompson v. State, 356 So.2d 757 (Ala.Cr.App.1978); Goodrum v. State, 418 So.2d 942 (Ala.Cr.App.1982). Steming from this authority, it is clear that a “mere arrest” or the filing of charges in themselves would be insufficient grounds for the revocation of probation. Free v. State, 392 So.2d 857 (Ala.Cr.App.1980), writ denied, 392 So.2d 859 (Ala.1981); Bullock v. State, 392 So.2d 848 (Ala.Cr.App.1980), writ denied, 392 So.2d 852 (Ala.1981); Hill v. State, 350 So.2d 716 (Ala.Cr.App.1977). It is equally clear that no final conviction of a probationer on the offense charged is required before his probation may be revoked. Free v. State, supra; Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960); Dixon v. State, 42 Ala.App. 341, 164 So.2d 509 (1964). All that is required of the trial judge in a probation revocation hearing is that the court be reasonably satisfied therefrom of the truth of the charge. Armstrong, supra; Goodrum, supra; Carter v. State, 389 So.2d 601 (Ala.Cr.App.1980).

Our examination of the record reveals that there was ample evidence from which the trial court could base its decision and the fact that the case is subsequently nolle prosequi has no bearing on the revocation of probation. The judgment of the trial court is therefore due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

BOWEN, Presiding Judge,

concurring.

I concur in the majority opinion authored by Judge Tyson. Here, it appears that the trial judge issued a written finding of facts only after probation had been denied and the issue raised on appeal. A.R.A.P. 10(f) is a motion to correct an omission or misstatement in the record. Its purpose is to insure that “the record truly discloses what occurred in the trial court.” This rule should not be used to correct an error which the trial judge has committed.


author: PER CURIAM. McDONALD, Justice,

text:
    THE FLORIDA BAR, Complainant, v. John P. KIRTZ, Jr., Respondent.
    Nos. 61386, 61942.
    Supreme Court of Florida.
    Feb. 9, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    Roger M. Sherman, Pensacola, for respondent.
   PER CURIAM.

These disciplinary proceedings are before us on complaints of The Florida Bar, reports of the referee, and petitions for review filed by John Peter Kirtz, Jr.

Case No. 61,386

The referee recommends that Kirtz be found guilty of all three counts of misconduct charged in the complaint. As to Count 1, the referee finds that a clearly excessive fee was charged and collected by Kirtz from his client, Otis Jones, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 2-106(A). We agree with the referee’s finding. This is not a fee dispute matter. Kirtz conceded that he had overcharged his client. In response to Kirtz’s claim that the overcharge was due to a bookkeeping error, the referee stated:

Respondent knew, or should have known, that the charge was excessive and cannot now use poor bookkeeping on his part to excuse himself from the consequences of his act. Even though it may be concluded that the overcharge was not intentional, yet the obligation of the lawyer is to keep his books of account in such order as not to make a careless mistake to the detriment of his client. The fact that Respondent did not ever tender the overcharge to Jones even after the complaint was filed with the Grievance Committee belies his now taken position that he made an honest mistake.'

As to Count 2, the referee found that Kirtz knowingly communicated directly with an adverse party without consent of the party’s lawyer, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 7 — 104(A)(1). The record supports this finding; and we approve it.

As to Count 3, the referee found that Kirtz neglected a legal matter entrusted to him, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 6-101(A)(3). Kirtz accepted a fee from C.L. Taylor for representation of his former wife and failed to pursue the matter. The referee also found that Kirtz engaged in conduct adversely reflecting on his fitness to practice law, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rule 1-102(A)(6). The record supports these findings, and we approve them.

As the appropriate disciplinary measure for this cumulative misconduct, the referee recommends that Kirtz be suspended from the practice of law for four months and until proof of rehabilitation and restitution to Otis Jones of the excessive fee of $968.98, plus interest thereon from October 4, 1979, at the annual rate of 8 percent, and repayment to C.L. Taylor, or his nominee, of the fee collected by him in the amount of $150 from Taylor for representation of his former wife, plus interest at 8 percent per annum from September 14, 1978.

We agree with the discipline recommended by the referee. John Peter Kirtz, Jr., is hereby suspended from the practice of law in this state for four months and thereafter until he proves rehabilitation and makes restitution to Otis Jones and C.L. Taylor or his nominee. Respondent shall pay the costs of these proceedings. This suspension shall be effective March 12, 1984, thereby giving respondent thirty days to close his practice and to take the necessary steps to protect his clients.

Case No. 61,942

The referee finds that Kirtz suggested to a client in a workers’ compensation case that he go out and strain his back so as to exaggerate his condition for the purpose of securing more compensation from his employer. The referee finds that by doing this, Kirtz engaged in conduct involving dishonesty, fraud, and deceit, which adversely reflects on his fitness to practice law and violated Florida Bar Code of Professional Responsibility, Disciplinary Rules 1 — 102(A)(4) and (6) and 7-102(A)(6) and (7). We approve this finding.

As the appropriate disciplinary measure, the referee recommends that Kirtz be suspended from the practice of law for four months and thereafter until he proves rehabilitation. The referee further recommends that this four-month suspension run concurrently with the four-month suspension recommended in Case No. 61,368. We agree with this recommended discipline.

Accordingly, Kirtz is hereby suspended from the practice of law in this state for four months and until he proves his rehabilitation. This suspension will run concurrently with the suspension ordered in Case No. 61,386.

Kirtz shall pay the costs of the proceedings in Case No. 61,386 and Case No. 61,-942 in the amount of $4,153.32.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., concurs in part and dissents in part with an opinion with which ADKINS, J., concurs.

McDONALD, Justice,

concurring in part, dissenting in part.

I concur in all but Count I of Case No. 61,386. The evidence fails to support a finding that respondent intentionally charged an excessive fee. This disagreement does not affect the ultimate penalty, however.

ADKINS, J., concurs.


author: EHRLICH, Justice.

text:
    CITY OF TAMPA, Appellant, v. THATCHER GLASS CORPORATION, Appellee.
    No. 64415.
    Supreme Court of Florida.
    Feb. 9, 1984.
    Joseph G. Spicola, Jr., City Atty., and Salvatore Territo, Asst. City Atty., Tampa, for appellant.
    John W. McWhirter, Jr., of Lawson, McWhirter, Grandoff & Reeves, Tampa, for appellee.
    Hugh C. Macfarlane and Ansley Watson, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for Peoples Gas System, Inc., ami-cus curiae.
    Stanford R. Solomon of Rudnick & Wolfe, Tampa, for Dart Industries, Inc., amicus curiae.
    Thomas J. Tighe of Lunny, Tucker & Karns, Fort Lauderdale, for the City of Plantation, amicus curiae.
    Paul A. Saad and John J. Cunningham, Jr., of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for Anheuser-Busch Incorporated, amicus curiae.
    William S. Bilenky, General Counsel, Tallahassee, for the Florida Public Service Commission, amicus curiae.
   EHRLICH, Justice.

This is an appeal from a circuit court order, certified to this court by the district court as being a question of great public importance pursuant to article V, section 3(b)(5) of the Florida Constitution.

Section 166.231 of Florida Statutes (1981) allows municipalities to levy a tax, up to ten percent, on the purchase of utility services within the municipality. The 1974 legislature added subsection 166.231(l)(b) which exempts “fuel adjustment charges” from the tax.

Several natural gas utilities, acting as collection agents for municipalities, applied the exemption to “purchased gas adjustments,” which are price adjustments to reflect fluctuations in the cost of the gas to the utility. In July 1982 Thatcher questioned the fact that it was not getting the exemption on the taxes it paid to Tampa, collected by Peoples Gas. Peoples filed an interpleader complaint against Thatcher and Tampa. Peoples was eventually discharged from liability in the interpleader action. Thatcher’s cross claim against the city requesting a declaratory judgment construing section 166.231(l)(b) resulted in a declaratory judgment, wherein the trial judge construed section 166.231’s “fuel adjustment charge” exemption to include natural gas, thus barring Tampa from taxing the adjustments. This appeal followed. We affirm the trial court.

“Fuel adjustment charge” has a technical meaning in the utilities industry, denoting an adjustment to an electric bill reflecting shifting prices of fossil fuels used to generate the electricity sold by electric utilities. The purpose of the charge is to allow utilities to pass on to customers the changing cost of providing service attributable to market forces beyond the control of the utility, without requiring the utility to seek a rate adjustment from the Florida Public Service Commission each time. See generally, Foy, Cost Adjustment in Utility Rate Schedules, 13 Vand.L.Rev. 663 (1960). In the utilities industry, “purchased gas adjustment” refers to similar adjustments to natural gas bills, reflecting changes in the price the utility pays for the gas it sells. The City of Tampa urges this Court to accept the technical denotation of “fuel adjustment charge,” thus limiting the tax exemption to electric bills. Thatcher urges us to read the phrase using the common meaning of the words, to include both electric and natural gas adjustment charges.

The cardinal rule of statutory construction is “that a statute should be construed so as to ascertain and give effect to the intention of the • Legislature as expressed in the statute.” Deltona Corp. v. Florida Public Service Commission, 220 So.2d 905, 907 (Fla.1969). When a word has both a common and a technical meaning, “the court will give it effect according to the popular signification, if it was so used by the Legislature, and the context may be referred to in ascertaining the sense in which it was used.” Southern Bell Telephone & Telegraph Co. v. D’Alemberte, 39 Fla. 25, 39, 21 So. 570, 572 (1897).

In determining whether the common or the technical meaning of the phrase at issue here should be used, we look to the context in which it is used. In this case the legislature has provided us with an explicit definition: “ ‘fuel adjustment charge’ shall mean all increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility subsequent to October 1, 1973.” § 166.231(l)(b). We find the common meaning of “fuel” supplied by the trial judge to be adequate: “Any matter used to produce heat or power by burning, as wood, coal, peat, petroleum, gas .... ” Webster’s New International Dictionary, Second Edition 1016 (1947). The definition of “fuel adjustment charge” provided by the legislature thus expands the meaning of the technical term to the common meaning of the phrase, which is within the permissible meaning of the words.

Tampa argues that “cost of fuel to the utility ” implies that “fuel” means fuel used by the utility rather than resold as a commodity. The city urges that subsection 166.231(l)(b), when read in pari materia with the rest of the section, supports its position. The city draws our attention to subsection 166.231(4):

The purchase of natural gas or fuel oil by a public or private utility either for resale or for use as a fuel in the generation of electricity, shall be exempt from taxation hereunder.

However, we find no disharmony between this subsection and subsection (l)(b) as we interpret it. Both natural gas and fuel oil are “fuels,” and subsection (4) merely provides that such fuels are exempt from taxation when purchased by a utility as a commodity or to fuel electric generators. Subsection (4) also demonstrates that the legislature was aware of the distinction between fuel used as a commodity and fuel used to fire electric generators. The legislature could have made the same distinction in subsection (l)(b), but did not, buttressing the general application of (l)(b) we find here.

Because we have determined that the legislature specified the common meaning in its definition of the term, there is no ambiguity and we do not need to address the other indicia of legislative intent urged by Tampa. The trial judge properly based his decision on interpreting the definition provided by the legislature, and his examination of other indicia of legislative intent is dictum and does not require review.

This decision shall apply prospectively, except for those taxpayers who have timely judicially challenged the exemption. The fact that Florida municipalities were about equally divided regarding application of the exemption, and that there has been no prior judicial interpretation on this issue demonstrates that the City of Tampa was acting in good faith. Where a tax is imposed in good faith reliance on a statute, “the taxpayers, other than those who challenged the statute, ... are not entitled to a refund.” Osterndorf v. Turner, 426 So.2d 539, 545 (Fla.1982).

Accordingly, we affirm the trial court decision and declare its effect to be prospective with the exception outlined above.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and SHAW, JJ., concur.

      . Ch. 74-109, Laws of Fla. (codified as amended at § 166.231(1), Fla.Stat. (1981)). The relevant language of section 166.231 reads:
      166.231 Municipalities; public service tax.—
      (l)(a) A municipality may levy a tax on the purchase of electricity, metered or bottled gas (natural liquified petroleum gas or manufactured), water service, telephone service, and telegraph service. The tax shall be levied only upon purchases within the municipality and shall not exceed 10 percent of the payments received by the seller of the taxable item from the purchaser for the purchase of such service. Municipalities imposing a tax on the purchase of cable television service as of May 4, 1977, may continue to levy such tax to the extent necessary to meet all obligations to or for the benefit of holders of bonds or certificates, which were issued prior to May 4, 1977.
      (b) The tax imposed by paragraph (a) shall not be applied against any fuel adjustment charge, and such charge shall be separately stated on each bill. “Fuel adjustment charge” shall mean all increases in the cost of utility services to the ultimate consumer resulting from an increase in the cost of fuel to the utility subsequent to October 1, 1973.
      [The quoted language is substantially the same as that enacted by the 1974 legislature, with the exception of the special provision for cable television.]

      . Technical words are those "[b]elonging or peculiar to an art or profession.” Black’s Law Dictionary 1312 (rev. 5th ed. 1979). The presumption favoring the "popular signification” of technical terms applies unless the profession to which the technical term belongs is the legal profession. Terms of special legal significance are presumed to have been used by the legislature according to their legal meanings. Davis v. Strople, 39 So.2d 468 (Fla.1949). (Barnes, J., concurring in part and dissenting in part). Compare Ocasio v. Bureau of Crimes Compensation, 408 So.2d 751 (Fla. 3d DCA 1982) ("affinity” found to have acquired specific legal meaning; statute therefore should be read using the legál meaning of the term) with State v. Brown, 412 So.2d 426 (Fla. 4th DCA 1982) ("noncon-sumable" found not to' have technical legal meaning; statute therefore interpreted based on common meaning of the term). In this case, “fuel adjustment charge” has technical signifi-canee in the utilities industry, but has not been subjected to the rigors of the playing fields of the law which would render it of specific legal significance. See generally, 30 Fla.Jur. Statutes § 98 (1974). The presumption in this case therefore favors the common meaning of the term. Southern Bell is especially instructive, for there the Court rejected the technical definition of a term as used by a utility, in favor of the common, dictionary definition.


author: CAMPBELL, Judge.

text:
    George WICKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-246.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1983.
    Rehearing Denied Feb. 8, 1984.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant, George Wicker, Jr., was charged and found guilty of burglary, sexual battery and robbery. He was sentenced to seventy-five years for the burglary, thirty years for the sexual battery and ten years for the robbery, the terms to run consecutively with credit for time served.

The basic issues in the case relate to the introduction of evidence of collateral crimes pursuant to Williams v. State, 110 So.2d 654 (Fla.1959), and whether all the elements of the burglary count were sufficiently alleged in the charging document. We affirm on both of these issues, but set aside the sexual battery convictions on the authority of McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980).

On November 15, 1981, the victim of the offenses was awakened by a man while she was asleep on her couch. The man covered her mouth and told her not to scream. At the same time, another man was in her children’s room and threatened to kill them if she moved. The two men, one heavyset with plaited hair and the other thin, conversed with one another, and the victim heard the thin man addressed as Willie. She was then raped by the heavyset man. After the rape was completed, he pulled a curtain over her face and the man called Willie raped her. Thereafter, the two men threw a coat over her head and told her to count to 100. After they left, she reported the incident and discovered that the men had stolen $15 in cash and food stamps. The victim later identified the appellant from a photopak and he was later arrested.

Appellant contends that the trial court erred in admitting evidence of other sexual batteries pursuant to Williams v. State. We disagree. Although evidence of collateral crimes will not be admitted solely on the basis of a mere similarity between the crime charged and the collateral crimes, if there is something particularly unique or unusual about the crime, such that the crime itself becomes a means of proving, for example, the identity of the perpetrator, the evidence of the collateral crimes becomes admissible. Sias v. State, 416 So.2d 1213 (Fla. 3d DCA 1982); Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974); Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974).

In the case at bar, the collateral crime evidence admitted was clearly unique, unusual and relevant to the crime charged. There are numerous similarities between this crime and the collateral crimes. In this case, as in each of the other cases, the victim was raped in the early morning hours, and afterwards, her head was covered and she was told to count to 100 or she would be killed.

We also find no merit in appellant’s second point on appeal which concerns the denial of his motion to dismiss the charge of burglary as alleged in Count I of the information. In general, all the central elements of a crime must be stated in the charging document. State v. Dye, 346 So.2d 538 (Fla.1977). Appellant alleges that Count I is deficient because it alleges as an enhancing factor that he committed “an assault” within the burglarized structure without alleging all of the necessary elements of an assault. In Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982), the court held that an information charging assault as an aggravating factor in a burglary charge must contain elements of assault, even though the assault is not the direct charge. We specifically disagree with that holding in Lindsey. However, the ultimate decision in that case may be correct as the Fourth District could not determine from the record what facts the state relied on to prove an assault. Appellant was charged with burglary in Count I by entering the dwelling of the individual who, in Count II of the information, was alleged to be the victim of the sexual battery. Count I further alleges that appellant’s entry into the dwelling was done with the intent to commit “theft and/or involuntary sexual battery and/or robbery,” and that in the course of the burglary an assault was made on the victim of the alleged sexual battery.

We consider that our conclusion that Lindsey is incorrect has support, by way of comparison, in felony murder indictments where it is not necessary to allege with particularity the elements of the underlying felony relied on in order to charge first degree felony murder. It seems to us illogical to require specific pleading of all the elements of an enhancing crime under section 810.02(2), Florida Statutes (1981), and not require it as to an underlying offense necessary to the primary offense charged, such as the felony in felony murder. State v. Pinder, 375 So.2d 836 (Fla.1979); Hardwick v. State, 335 So.2d 307 (Fla. 1st DCA 1976). We conclude then that it would be unreasonable to apply the reasoning in Lindsey to the enhancement offense in a burglary charge when it would not apply in regard to the underlying offense which must be alleged to have been intended to be committed upon entering the structure or conveyance. See State v. Waters, 436 So.2d 66 (Fla.1983). While appellant argues that the enhancing factor in a burglary charge must be proved to have been committed, and the underlying offense must only have been intended to be committed, the reasoning behind that argument fails when compared to the lack of any requirement to specifically plead the underlying felony in a felony murder charge, which also must be proved to have been committed or attempted.

Finally, in McRae, this court held that appellant could not be convicted of both an enhanced first degree burglary and the sexual battery which formed the basis of the enhanced burglary charge. The reason being that the sexual battery was necessary to sustain a conviction for enhanced first degree burglary. In the case at bar, while appellant was charged only with “assault” as the enhancing offense, it is clear from the entire information that the assault relied upon was the sexual battery as charged in Count II of the information.

Accordingly, we must set aside appellant’s sexual battery conviction. The finding that appellant committed a sexual battery was necessary to a conviction for first degree felony burglary. Therefore, appellant could not be convicted of both the first degree burglary and the sexual battery which also formed the basis of the burglary charge.

BOARDMAN, A.C.J., and SCHEB, J„ concur.

      . This court properly receded from the authority of McRae for the cited principle on the authority of State v. Hegstrom, 401 So.2d 1343 (Fla.1981). However, Bell v. State, 437 So.2d 1057 (Fla.1983) has now explained or receded from Hegstrom to the extent that Hegstrom was interpreted to permit multiple convictions for lesser included offenses in single trial settings. 437 So.2d at 1060. As a result, the then correct act of this court in Speed v. State, 410 So.2d 980 (Fla. 2d DCA 1982), in receding from McRae, is invalidated and McRae is therefore reinstated. Sec also State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983).


author: OTT, Chief Judge. OTT, Chief Judge.

text:
    George WICKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-272.
    District Court of Appeal of Florida, Second District.
    Oct. 28, 1983.
    Rehearing En Banc Denied Feb. 15, 1984.

      Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

George Wicker, Jr., appeals from the judgments and sentences resulting from his jury convictions of armed burglary with assault and involuntary sexual battery. We find no merit to the points raised by appellant on appeal, except for those relating to certain aspects of the sentences.

First, the sentences do not reflect jail credit for time served, as required by section 921.161(1), Florida Statutes (1981). Accordingly, we remand for a determination of whether appellant is entitled to receive credit for time served. If so, such credit should be included in the sentence. See Wicker v. State, 438 So.2d 398 (Fla. 2d DCA 1983); Wicker v. State, 438 So.2d 399 (Fla. 2d DCA 1983).

Second, the trial court erred in retaining jurisdiction over one-third of each of the consecutive sentences imposed. Wicker; Wicker; Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983). Therefore, we strike each of the special provisions for retention of jurisdiction and remand to the trial court with directions to reconsider the period of retention in accordance with section 947.16(3), Florida Statutes (1981).

We therefore AFFIRM appellant’s convictions and REMAND for correction and reconsideration of the sentences in a manner consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

BOARDMAN and SCHEB, JJ., concur.

ON MOTION FOR REHEARING EN BANC

OTT, Chief Judge.

In his motion for rehearing en banc, defendant argues that this court must vacate his conviction of involuntary sexual battery because such assault was used as an enhancing factor in his first-degree burglary conviction. He notes the court reached that result sua sponte in Wicker v. State, 445 So.2d 581 (Fla. 2d DCA 1983), and claims that the cases are identical.

To convict a person of first-degree burglary, the state must prove not only the essential elements of burglary, as defined in section 810.02(1), but also that in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon. McRae v. State, 383 So.2d 289, 293 (Fla. 2d DCA 1980). In cases where the information alleges as enhancing factors that the defendant made an assault and that the defendant was armed or armed himself within the dwelling and the jury’s verdict indicates that both of these allegations were established, the defendant may be convicted of and sentenced for both the enhanced burglary and the sexual battery without running afoul of the constitutional prohibition against twice placing a person in jeopardy. See McRae. In such cases, the allegation of assault in the burglary count is deemed surplusage, as it is not necessary for a conviction of first-degree burglary. McRae.

In Wicker, 445 So.2d 581 the amended information alleged a burglary with an assault as the only enhancing factor. There was no allegation that the defendant was armed or armed himself within the dwelling with a deadly weapon. Thus, convictions of and sentences for both first-degree burglary and the indispensable sexual battery raised possible double jeopardy issues. See generally McRae; Speed v. State, 410 So.2d 980 (Fla. 2d DCA 1982). On this ground, the court in Wicker vacated the defendant’s involuntary sexual battery conviction.

In the instant case, the information alleged a burglary with assault (involuntary sexual battery) and that defendant carried a deadly weapon. The evidence and verdict indicate that both allegations were established. Thus, defendant was properly convicted of and sentenced for both the first-degree burglary and the involuntary sexual battery. See McRae.

There is no conflict or lack of uniformity between the Wicker opinions. Wicker, No. 83-272, was correctly decided. Accordingly, defendant’s motion for rehearing en banc is DENIED.

BOARDMAN and SCHEB, JJ., concur.

      . See Bell v. State, 437 So.2d 1057 (Fla. 1983), for a recent statement by the supreme court on the law of double jeopardy.

      . George Wicker, Jr. of the County of Pinellas and State of Florida, on the 15th day of November In the year of our Lord, one thousand nine hundred eighty-one In the County and State aforesaid
      unlawfully and without invitation or license did stealthily enter that certain structure, the dwelling of ... located at ... in the City of St. Petersburg, in the County and State aforesaid, the property of ... with the intent to commit an offense therein, to-wit: theft and/or involuntary sexual battery and/or robbery, and in the course of committing the said burglary the said GEORGE WICKER, JR. did make an assault upon ... the said structure not at the time open to the public; contrary to Chapter 810.02(2), Florida Statutes, and against the peace and dignity of the State of Florida.

      .George Wicker, Jr. of the County of Pinellas and State of Florida, on the 22nd day of September In the year of our Lord, one thousand nine hundred eighty-one In the County and State aforesaid
      unlawfully and without invitation or license did enter or remain in that certain structure, the dwelling of ... located at ... in the City of St. Petersburg, in the County and State aforesaid, the property of ... with the intent to commit an offense therein, to-wit: theft and/or involuntary sexual battery, and during the course thereof make an assault upon ... by threatening her with bodily harm and during the course thereof did carry a deadly weapon, to-wit: a firearm, and said structure at the time not open to the public; contrary to Chapter 810.02, Florida Statutes, and against the peace and dignity of the State of Florida.


author: JOANOS, Judge. JOANOS, Judge.

text:
    S.L.W., A Child, Appellant, v. STATE of Florida, Appellee.
    No. AS-175.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    Rehearing Denied Feb. 27, 1984.
    Charlene V. Edwards, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   JOANOS, Judge.

In this appeal of a juvenile adjudication and commitment to the Department of Health and Rehabilitative Services, S.L.W. contends the evidence was insufficient as a matter of law to sustain a conviction for burglary, and that the court erred in overruling a defense objection to admission of testimony by a police officer as to inculpa-tory statements by S.L.W. to him, because the alleged waiver of counsel by S.L.W. prior to discussion with the officer did not comply with Fla.R.Juv.P. 8.290(d)(4), and the waiver was otherwise involuntary. As to the first issue, we have determined from a review of the record that the evidence was sufficient as a matter of law to sustain the burglary conviction, however, we agree with S.L.W. as to the second issue and ^therefore reverse.

Officer Padgett said that before questioning S.L.W. he informed him of his rights, including the right to assistance of counsel, and S.L.W. appeared to understand them. Officer Padgett did not obtain from S.L.W. a written waiver of the right to counsel. Fla.R.Juv.P. 8.290(d)(4) provides:

A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than two attesting witnesses. Said witnesses shall attest the voluntary execution thereof, (e.s.)

In the present case the lower court was of the view that this rule applied only to waivers before the court, the public defender, or an intake officer, but was not applicable to police officers in general, therefore he overruled S.L.W.’s objection. The State reasserts this argument and also contends that Section 39.03(l)(b) rather than the rule of procedure governs this case. This interpretation is incorrect. The rule applies to situations involving police officers and therefore to the present case. In addition, compliance with the rule is mandatory, see M.L.H. v. State, 399 So.2d 13 (Fla. 1st DCA 1981). The failure to comply in this case renders inadmissible the inculpatory statements, which defense counsel sought to suppress, made by S.L.W. to the police officer. Therefore the order of adjudication and commitment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

ERVIN, C.J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.

ON MOTION FOR REHEARING

JOANOS, Judge.

The motion for rehearing is denied, however, we acknowledge a conflict between our decision in this case and In the Interest of H.D., 443 So.2d 410 (Fla. 4th DCA 1984). On the basis of this conflict and because we believe the question presented to be one of great public importance, we certify the following question to the Florida Supreme Court:

Whether the failure to comply with Fla. R.Juv.P. 8.290(d)(4) renders inadmissible inculpatory statements obtained from a child absent a valid waiver of counsel obtained pursuant to that rule?

ERVIN, C.J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.