author: PER CURIAM. THOMAS, Judge,

text:
    Delilia EDWARDS v. George EDWARDS.
    2080125.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      Nancy M. Kirby, Prattville, for appellant.
    Steven D. Adcock, Talladega, for appel-lee.
   PER CURIAM.

Delilia Edwards (“the wife”) and George Edwards (“the husband”) were married in March 1967, when the wife was 14 years old and the husband was 19 years old. The parties have two adult children. After 39 years of marriage, the parties separated in November 2006. The wife sued the husband for a divorce, and, after a trial in March 2008, the trial court divorced the parties and divided their property. The wife appeals, arguing that the division of property is inequitable, that the trial court arbitrarily assigned values to the parties’ real property, and that the trial court’s award of short-term rehabilitative alimony without reserving the right to award permanent periodic alimony is error.

The judgment specifically sets out the property and alimony awards as follows:

“4. The parties jointly own five (5) real estate tracts and/or parcels which are comprised of as follows:
“A. The ‘motel property’;
“B. The mobile home and approximately 169 acre tract;
“C. The ‘trailer park property’;
“D. 1/2 acre tract on 280;
“E. The ‘Vincent property’.
“5. Each property and/or tract shall be immediately placed on the open market for sale. The parties shall cooperate in the listing of the properties with a realtor and agreeing upon a sales price for each property. Upon the sale of each tract or parcel, the net proceeds after paying all encumbrances, realty commissions, closing costs, etc., shall be divided as follows: the [wife] shall receive 33½% of the net sales proceeds; and the [husband] shall receive 66%% of the net sales proceeds. Pending the sale, the [husband] shall be responsible for paying all taxes, assessments and insurances on the properties.
“6. The [husband] shall be allowed the exclusive right to use and possess the mobile home for his use and benefit pending the sale of said property; and the right to exclusively operate and lease restaurant/motel property.
“7. In the event that the parties cannot agree on a sales price or any other issue regarding the sale of the property, either party may petition the court to sell same at public auction.
“8. Should the [husband] wish to purchase any of the [wife’s) interest in any of the properties, he shall be allowed to pay to the [wife] the following:
“A. $232,305.00 on the ‘motel property’;
“B. $55,425.00 on the ‘169 acre tract’;
“C. $54,660.00 on the ‘trailer park property’;
“D. $27,330.00 on the ‘1 ½ acre tract on 280’;
“E. $2,733.00 on the “Vincent property’-
“Should the [husband] remit to the [wife] said amount on any of the respective properties, the [husband] shall be the sole and separate owner of said property. At that time the [wife] shall execute any documents necessary to transfer to title in and to said property to the [husband]; and the [wife] shall be divested of all her right, title and interest in and to same.
“9. The [husband] shall pay to the [wife] the sum of $600.00 per month as periodic alimony for a period of 12 months from the date of the execution of this decree or until such time as of any of the above-listed properties sell, with the exception of the Vincent property, whichever occurs first. Upon the happening of either event the alimony obligation shall cease.
“10. If any of the properties have not sold after a period of 12 months, either party may petition the court to sell said property at public auction.
“11. The [husband] shall have all right, title and interest in and to the mobile home of the parties, and the [wife] is divested of all her right, title and interest in and to same.
“12. The [wife] shall be the sole and separate owner of all the following items of personal property: her rings and her father’s rings; her box collection; her personal pictures; her china and her crystal; her cookbooks; her punch bowl and tray; her personal belongings such as clothes, shoes and makeup; red rocking chair; Sadie’s chair; (2) mirrors and one-half of all the family photographs or copies of same. The [husband] is hereby divested of all his right, title and interest in and to same.
“13. The [husband] shall be the sole and separate owner of all items of personal property presently in his possession which have not been awarded otherwise hereinabove; and the [wife] is hereby divested of all her right, title and interest in and to same.”

The wife was 55 years old at the time of trial. Because she was pregnant at the time the parties married, she dropped out of high school after completing the ninth grade; she did receive her GED in 1974. The wife has held several low-paying jobs over the years, but none of them has required specialized education or training. She has worked at a company called Vulcan Binder, and, most recently, she worked at the Talladega Senior Center in the kitchen. According to the husband, the wife took courses in interior design and in real estate earlier in the marriage, but neither party testified that the wife had ever worked in the fields of real estate or interior design. The wife suffers from arthritis in her hands and hemorrhoids, and she has had carpal-tunnel-release surgeries in both of her hands. The wife had been sitting with two or three elderly and ill persons in the months before the trial, earning $6 per hour, but she had also unsuccessfully sought employment at Vulcan Binder, at Earlyne’s Florist, at a Wal-Mart discount department store, and at a local school lunchroom before trial.

Over the years, the parties had at least two successful family businesses. The husband ran an upholstery shop for several years. Although the wife testified that she had assisted the husband at the shop, the husband indicated that she had helped very little. Later, beginning in the mid to late 1980s and through the mid 1990s, the parties ran a motel. The wife testified that she had worked the desk at the motel and had performed maid services. In addition, she said that, before they could run the motel, it had required extensive renovation and repair, which she said she had assisted in performing. The husband disputed the level of assistance the wife had provided in both the remodel and the running of the motel. The parties also own and run a trailer park.

According to the parties, both of them used drugs during part of the marriage. The husband admitted that he had used marijuana for several years and that he had tried cocaine once; however, he said that he had stopped using drugs of any kind about nine years before the trial because he was subject to random drug testing by his employer. The husband was once arrested for possession of marijuana in either 1989 or 1990; he pleaded guilty to felony possession and was placed on five years’ probation. The wife was also arrested at the same time, but she pleaded guilty to a misdemeanor charge.

The wife admitted that she had used several different drugs during the marriage, including marijuana, cocaine, crack cocaine, and methamphetamine. The wife also admitted that she had abused alcohol for several years of the marriage; however, she said that she had stopped drinking alcohol in 2000. Although she said that she had stopped abusing drugs in April 2006, the wife admitted that she had used marijuana as recently as October or November 2006, around the time she left the husband. The wife insisted, however, that she had not used any controlled substance since the parties’ separation.

According to the husband, the wife’s drug use and alcoholism was a problem during the marriage. He accused the wife of using rent money she had collected from the trailer park to purchase drugs. He also presented evidence indicating that the wife had allowed people to use rooms at the motel the parties had once operated for free in exchange for drugs.

Although the wife admitted that she had used money for drugs at times instead of using the money for groceries or for bills, she commented that the husband had used those drugs with her. She denied having allowed the use of rooms at the motel in exchange for drugs and denied having traded sexual favors for drugs. She did testify that both parties had consensually engaged in sexual relations outside of the marriage once.

A further point of contention between the parties was the wife’s practice of taking out loans for one of the parties’ adult sons. The wife testified that she had taken out two loans to assist the son during the period when he was running a restaurant. The husband said that the wife may have taken out the loans to assist the son but that the money the son had given the wife to repay the loans had been used for drugs instead.

The husband had worked for Alabama Marble as a crane operator for over 10 years; he also had operated other large equipment for the company as needed. He testified that he had earned $3,400 per month at that job. At the time of trial, however, he was no longer employed by the company. The record does not reveal whether the husband, who was 60 years old at the time of trial, intends to pursue other employment. He did comment that, at his age, he thought that he would have trouble getting hired.

As previously mentioned, the husband and the wife own a trailer park consisting of seven lots, six of which are usually rented for $100 per month. The parcel of property on which the trailer park sits was valued by the wife at $200,000 and by the husband at $100,000. The trial court valued this property at $163,980.

The husband and the wife lived in a mobile home situated on approximately 169 acres of land. The mobile home, according to the vafe, is in a state of disrepair. She said that one could see the ground through a hole in the floor in the bathroom and that the refrigerator was kept closed by placing a jug of water in front of it. The 169-acre tract was valued at $338,000, or $2,000 per acre, by the wife and at “tax value,” or less than $1,200 per acre, by the husband. The trial court determined the value of the 169-acre tract to be $166,275, or approximately $984 per acre.

The parties also own property upon which sits a motel and a separate restaurant building. Although the parties no longer operate the motel, the restaurant has often been leased to others for operation. It was leased at the time of trial, with rent set at $1,500 per month. The wife valued this property at between $800,000 and $1,000,000, while the husband testified that it was worth less than $900,000. The trial court valued the property at $696,915.

The parties owned two other smaller parcels of real estate. The first parcel is a 1.5-acre parcel along Highway 280, which the wife valued at $100,000 to $150,000. The husband, however, valued that parcel at $50,000. The trial comb set the value of that parcel at $81,990. The other parcel owned by the parties is an eighth of an acre in Vincent, Alabama, to which neither party ascribed a value. The trial court valued this parcel at $8,199.

The parties also owned 20 or more older-model vehicles, which both described as being in varying states of disrepair. The husband described them as rusted and said that any useful parts had long been removed from them; thus, he described them as a pile of scrap metal. They also owned two personal watercraft, neither of which was operational at the time of trial.

As noted above, the wife complains about the division of property and the award of alimony. The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). The only limitation on that discretion is that the division of property must be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812, 813 (Ala.Civ.App.1984). The trial court’s judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. In making a property division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993). However, this court must be mindful that our standard of review is limited, for “ ‘[i]t is not for an appellate court to substitute its judgment for that of the trial court.’ ” Ex parte Moore, 878 So.2d 1161, 1166 (Ala.2003) (quoting Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001)).

The trial court awarded the wife either one-third of the value of the real property contained in the marital estate or one-third of the proceeds from the sale of that property. The wife made specific requests regarding personal property at trial, and, although a few items she had requested were not awarded to her, by and large, she received what she requested. She was further awarded periodic alimony in the amount of $600 per month until 1 of the parcels of real property, other than the small parcel in Vincent, sells or until the expiration of a 12-month period, whichever occurs first.

At trial, the husband argued vehemently that the wife should not be awarded any of the real property because it was “family land” and because the wife “brought nothing into the marriage.” He also argued that the wife had not contributed to the family wealth through work or otherwise and that she had squandered the family’s earnings on drugs. Notably, at the time of trial the husband was unemployed and had a monthly income of approximately $2,100, provided he had rented six of the seven trailer lots and the restaurant and he received the rents due from each tenant.

At the time of trial, the wife was also unemployed and living with her sister. The wife testified that she had not been assisting her sister with expenses regularly because the wife had earned very little income, but the wife said that both she and her sister felt that the wife owed the sister money for allowing her to live in the sister’s home. The wife also said that she desired to move into a place of her own as soon as she could afford to do so. She estimated that her monthly expenses, were she to move out of her sister’s home, would be $1,869.

The wife presented little testimony regarding the lifestyle the parties had enjoyed during the marriage, other than testifying that the trailer in which they had lived was in disrepair. She specifically commented that the husband’s refusal to upgrade their standard of living had been an issue for her. Thus, based on the evidence, we cannot conclude that the parties lived a lavish or even an upper-middle-class lifestyle; in fact, their lifestyle would likely be best described as modest.

Based on the evidence, the trial court could have been convinced that the wife’s alcoholism and her drug abuse had constituted fault in the marriage. A trial court may consider fault when making a property division, even if it does not grant a fault-based divorce. Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000); TenEyck v. TenEyck, 885 So.2d 146, 155 (Ala.Civ.App.2003). As has often been stated, the trial court’s property division need not be equal, only equitable under the circumstances, and the determination of what is equitable in each circumstance is made by the trial court, not this court. Ross, 447 So.2d at 813. The trial court’s consideration of fault supports its determination that the wife was entitled to less than an equal division of the parties’ assets. Thus, although the division of property favors the husband, we find no error.

The wife disputes the values the trial court assigned to the parties’ real estate. The wife argues that the evidence at trial does not support the valuations selected by the trial court; we disagree. The trial court set the assigned value of the trailer-park parcel and the 1.5-acre parcel on Highway 280 at an amount between the value each party had ascribed to each parcel. The trial court valued the 169-acre parcel at an amount relatively close to but below the husband’s imprecise “less than $1,200 per acre” valuation; it also valued the motel property at an amount below the husband’s imprecise valuation. The husband testified as to why he thought the values of those properties were “less than” certain amounts, noting that portions of one property flooded and that another portion of the property was unusable because of its topography. As noted above, neither party testified as to the value of the Vincent parcel, to which the trial court ascribed a $8,199 value. We conclude that the values set by the trial court were in line with the general valuation testimony given by the parties.

The wife requests that we reverse the trial court’s judgment because, she says, the record does not contain sufficient evidence of the value of the parties’ real property. She relies on Hurley v. Hurley, 980 So.2d 985, 990 (Ala.Civ.App.2007), in which this court reversed the property division in a divorce judgment because the record contained no evidence regarding the value of several large marital assets or of several expenses of the parties and how they were to be attributed. We find the situation in this case to be distinguishable from the one in Hurley; unlike the situation in Hurley, we have evidence in the present case concerning the value of the parties’ real property, with the exception of the small Vincent parcel, and the trial court itself established a value of each parcel, including the Vincent parcel. Therefore, we decline the wife’s invitation to reverse the trial court’s judgment on the basis of Hurley.

The wife further requests that we reverse the judgment and remand the cause to have the trial court order an appraisal of the parties’ real property in order to establish its value. The parties shared the burden of establishing the worth of their marital property. If either of them had felt that an appraisal of any parcel of property was necessary to establish its value, that party should have sought an appraisal. Either party was permitted to testify regarding their opinion of the value of the marital property; an appraisal was not required to establish the value of the property. See Ingram v. Ingram, 602 So.2d 418, 420 (Ala.Civ.App.1992) (allowing a husband to testify regarding his opinion of the value of the marital residence). We will not reverse the trial court’s division of property because the parties failed to present the necessary evidence to more definitively establish the suggested values of the marital property.

Finally, the wife challenges the trial court’s limitation of rehabilitative alimony to a 12-month period or until 1 of the parcels of real property, other than the small Vincent property, is sold without reserving the right to award permanent periodic alimony. She correctly argues that this court has reversed judgments when trial courts have failed to reserve the right to award permanent periodic alimony in light of the length of the parties’ marriage, the disparity between the earning abilities of the parties, the parties’ future prospects, and other factors. Giardina v. Giardina, 987 So.2d 606, 620 (Ala.Civ.App.2008). As we stated in Giardina:

“As to the [wife’s] argument that the trial court erred by failing to reserve jurisdiction to award her permanent periodic alimony, we note that, because rehabilitative alimony is ‘a sub-class of periodic alimony,’ Jeffcoat[ v. Jeffcoat, 628 So.2d 741, 743 (Ala.Civ.App.1993), overruled on other grounds by Crenshaw v. Crenshaw, 816 So.2d 1046 (Ala.Civ.App.2001) ], the [wife] has the right to seek future modification of her alimony award provided she exercises that right before the end of the three-year [rehabilitative-alimony] period, see Welch v. Welch, 361 So.2d 1090 (Ala.Civ.App.1978), and Banks v. Banks, 336 So.2d 1365 (Ala.Civ.App.1976).
“We acknowledge that some of our prior decisions have implicitly rejected the idea that a spouse who has been awarded rehabilitative alimony must seek a modification of the award before the expiration date of the rehabilitative-alimony period or be forever barred from receiving periodic alimony. In Fowler v. Fowler, 773 So.2d 491, 495 (Ala.Civ.App.2000), overruled on other grounds by J.L. v. A.Y., 844 So.2d 1221, 1225 (Ala.Civ.App.2002), this court stated:
“ ‘We have previously held that when the court awards rehabilitative alimony based on the earning ability of the parties, their probable future prospects, and the length of the marriage, it is reversible error for the court not to reserve the right to award periodic alimony in the future. See Robinson v. Robinson, 623 So.2d 300 (Ala.Civ.App.1993); Sammons v. Sammons, 598 So.2d 941 (Ala.Civ.App.1992).’ ”

Giardina, 987 So.2d at 620. Based on Giardina, we agree with the wife that the failure to reserve the right to award permanent periodic alimony, even in light of the award of rehabilitative alimony, is error. We therefore reverse the trial court’s judgment insofar as it failed to reserve the right to award permanent periodic alimony and remand the cause for the trial court to do so.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur.

THOMAS, J., concurs in part and concurs in the result in part, with writing, which PITTMAN, J., joins.

THOMAS, Judge,

concurring in part and concurring in the result in part.

I concur in the portion of the main opinion affirming the division of property. Regarding the reversal of the judgment insofar as it failed to reserve the right to award permanent periodic alimony in the future, I concur only in the result. Although I authored Giardina v. Giardina, 987 So.2d 606 (Ala.Civ.App.2008), I have reconsidered the issue whether we should reverse a judgment when the trial court fails to reserve the right to award something they have already awarded.

As I noted in Giardina, older cases decided by this court noted that an award of rehabilitative alimony could be modified upon a proper showing, provided that the recipient moved for a modification before the expiration of the term of rehabilitative alimony. See Welch v. Welch, 361 So.2d 1090 (Ala.Civ.App.1978), and Banks v. Banks, 336 So.2d 1365 (Ala.Civ.App.1976). In Beckwith v. Beckwith, 475 So.2d 575, 576-77 (Ala.Civ.App.1985), we considered an argument that the trial court, which had awarded alimony for a one-year period, had erred by failing to reserve the right to award periodic alimony in the future. After noting that the decision whether to reserve the right to award alimony is within the sound discretion of the trial court, we noted that the trial court had the power, prior to the expiration of the one-year period, to modify the original award of alimony. Beckwith,, 475 So.2d at 576-77. Certainly, we have also held that, without reservation of the right to award further periodic alimony, the expiration of a limited alimony award terminates forever the trial court’s right to modify or to award alimony. Gargis v. Gargis, 367 So.2d 476, 478 (Ala.Civ.App.1978). However, it is clear that when a trial court awards limited or “rehabilitative” alimony the trial court has in fact exercised its power to award alimony and may modify that award at any time before the right to receive that alimony expires. Why then must the trial court reserve the power to award something that it has already awarded?

Beginning in the early 1990s this court began reversing judgments when the trial court failed to specifically reserve the right to award periodic alimony, despite the fact that the trial court had awarded rehabilitative alimony in the divorce judgment. See Robinson v. Robinson, 623 So.2d 300 (Ala.Civ.App.1993); Sammons v. Sammons, 598 So.2d 941 (Ala.Civ.App.1992). Robinson and Sammons are two of the cases most often cited for the proposition that the failure to reserve the right to award periodic alimony in conjunction with an award of rehabilitative alimony is error. Upon further review of those cases, I have concluded that neither has any legal underpinning for that holding.

In Robinson, this court reversed the rehabilitative-alimony award with instructions to the trial court to delete certain restrictions on that award. Robinson 623 So.2d at 304. After those instructions, this court, without citation to any authority, further ordered the trial court to reserve the right to award periodic alimony. Id. In Sammons, although this court affirmed a trial court’s award of only rehabilitative alimony to the wife, we reversed the trial court’s judgment for failing to reserve the right to award periodic alimony, citing Farris v. Farris, 532 So.2d 1041 (Ala.Civ.App.1988). Sammons, 598 So.2d at 943. An examination of Fanis, however, reveals no support for the reversal. In Far-ris, we affirmed the trial court’s judgment failing to award the wife any alimony. Fanis, 532 So.2d at 1043.

Because, after further examination of these competing lines of cases, I cannot see a reason to perpetuate the reversal of divorce judgments solely because they do not contain what I perceive to be an unnecessary reservation, I would no longer apply the progeny of Sammons and Robinson. However, because the wife in the present case appealed based on our longstanding practice of reversing a judgment when the trial court fails to reserve the right to award periodic alimony when awarding rehabilitative alimony and because the wife’s short-lived rehabilitative-alimony award expired during the pen-dency of this appeal, I agree, in this case, that a reversal under the longstanding, but unnecessary, principle is warranted. Therefore, I concur in the result of that portion of the main opinion.

PITTMAN, J., concurs.

      . The value set by the trial court for each parcel of real property was arrived at by multiplying the "buy-out” amount set by the trial court in its judgment by 3, because the trial court awarded the wife 33 ½% of the marital estate.

      . No tax appraisals were introduced into evidence.


source: Caselaw Access Project

author: WELCH, Judge. BASCHAB, Presiding Judge,

license: Public Domain

text:
    Scotty EDWARDS, Jr. v. STATE of Alabama.
    CR-07-1165.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.
    Rehearing Denied April 24, 2009.

      Audrey ChaLea Tisdale, Opp, for appellant.
    Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.
   WELCH, Judge.

Scotty Edwards, Jr., appeals the circuit court’s order revolting his probation. The record indicates that in 1999 Edwards pleaded guilty to one count of unlawful distribution of a controlled substance. On September 28, 1999, he was sentenced to 15 years’ imprisonment. However, the circuit court suspended the sentence and, pursuant to the Split Sentence Act, ordered Edwards to serve 1 year’s imprisonment, followed by 14 years of supervised probation.

On January 8, 2008, Edwards’s probation officer filed a delinquency report charging Edwards with violating the conditions of his probation by committing the new offense of unlawful distribution of a controlled substance. A probation-revocation hearing was held on March 19, 2008.

At the probation-revocation hearing, the State presented evidence indicating that on June 2, 2007, Chris Inabinette, an investigator with the Alabama Beverage Control Board, met with H.F., who was going to attempt to make a controlled drug buy. Inabinette searched H.F.’s person and vehicle for drugs, and found none. H.F. was provided with cash as well as video- and audio-recording equipment by which to record the transaction. H.F. telephoned Edwards, telling Edwards that he was going to come see him. Inabinette followed H.F. to Edwards’s residence and parked nearby. H.F. met with Edwards and purchased crack cocaine from him. Inabinette testified that he was familiar with Edwards and that he believed the person on the videotape as well as any audio recording was Edwards. H.F. also testified at the hearing. Bill Law, the probation officer, testified that he had previously discussed the conditions of his probation with Edwards and that violation of any federal or state laws and or the resumption of any injurious or vicious habits was among those conditions. After the hearing, the trial court issued an order revoking Edwards’s probation.

Edwards asserts the following three claims on appeal: 1) that counsel rendered ineffective assistance during the probation-revocation hearing by failing to object to the admission of the certificate of analysis prepared by the Department of Forensic Sciences that indicated that the substance tested was cocaine; 2) that the trial court’s order revoking his probation was insufficient because it did not specifically set forth what evidence it was relying upon; and 3) that the evidence was insufficient because the witnesses who testified at the hearing were biased and their testimony was hearsay.

Claims 1 and 3 are not properly before this Court. The general rules of preservation apply in probation-revocation proceedings. Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996). This court has recognized only three exceptions to the preservation requirement: (1) that there be an adequate written order of revocation; (2) that a revocation hearing actually be held; and (3) that the trial court advise the defendant of his right to request an attorney. Smith v. State, 857 So.2d 838 (Ala.Crim.App.2002). The record reflects that Edwards failed to object in the trial court to the incidents that are the basis of claims one and three; therefore, those claims were not properly preserved for review. See e.g., Cottle v. State, 826 So.2d 212 (Ala.Crim.App.2001), and Williams v. State, 704 So.2d 1043 (Ala.Crim.App.1997). See also Ex parte Ingram, 675 So.2d 863, 866 (Ala.1996) (“When a defendant makes a claim of ineffective assistance of trial counsel, and that claim cannot reasonably be presented in a new trial motion within the 30 days allowed by Rule 24.1(b), Ala. R.Crim.P., the proper method for presenting that claim for appellate review is to file a Rule 32, Ala.R.Crim.P., petition for post-conviction relief.”).

Because Edwards’s claims 1 and 3 do not fall within one of the recognized exceptions to the preservation requirement and because he did not raise any objection to the sufficiency of the evidence or make an argument that counsel was ineffective, those claims were not properly preserved for appellate review.

Although Edwards did not object to the adequacy of the trial court’s written revocation order, as noted above, “the adequacy of a written order of revocation can be raised for the first time on appeal.” Durr v. State, 807 So.2d 595, 595 (Ala.Crim.App.2001), citing Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

The trial court, in its order revoking Edwards’s probation, stated:

“The defendant being present with Hon. Corey Bryan, his attorney of record, the Court proceeded to hear the evidence, and finds that the defendant has violated a condition of his probation in that there is evidence believed and relied upon by the Court, upon consideration of all the proof presented, including that of witnesses Chris Inabinette[,] Heath Mallory Fountain and Bill Law, that the defendant has violated such a condition. Particularly, the Court is reasonably satisfied from the evidence that defendant did, during the term of his probation, and on 06/02/07, commit the offense of Unlawful Distribution of a Controlled Substance in or near Florala, Covington County, Alabama. The Court is of the opinion that such offense clearly breached the requirement that defendant not violate any federal, state or local law.”

(C. 23.)

“In order for the due process requirements set forth in Armstrong [v. State, 294 Ala. 100, 312 So.2d 620 (1975),] and Rule 27.6(f), Ala. R.Crim. P., to be met, the trial court’s order revoking probation must ... recite the reasons for the revocation and the evidence relied upon in ordering the revocation.” James v. State, 729 So.2d 364, 365 (Ala.Crim.App.1998). Although “general recitations by the trial court to its consideration of the ‘testimony,’ ‘sworn testimony,’ or ‘relevant and competent evidence’ presented at the revocation hearing [are] insufficient for purposes of satisfying” due-process requirements, id., where, as here, the trial court’s order specifically lists the witnesses whose testimony the trial court found credible and relied upon in revoking probation, the order adequately specifies the evidence relied upon and, therefore, satisfies Rule 27.6(f), Ala. R.Crim. P., and due process requirements. See, e.g., Coleman v. State, 777 So.2d 311 (Ala.Crim.App.2000) (statement in order that tidal court was revoking probation “based on new charges and sworn testimony of Officer Clint Reaves” was a sufficient statement of the evidence the trial court relied upon to satisfy due-process requirements); Harrelson v. State, 651 So.2d 1151 (Ala.Crim.App.1994) (statement in order that trial court was revoking probation “upon consideration of all the proof presented, including that of witnesses Bill Law [probation officer] and Mary Ann Willingham [eyewitness]” was a sufficient statement of the evidence the trial court relied upon to satisfy due-process requirements). Recently, in Phillips v. State, 10 So.3d 1088 (Ala.Crim.App.2008), this Court, in a 3-2 decision, held that the same trial judge, who wrote the order in this case and in Harrelson, supra, prepared a similar order in which it did not adequately set forth the evidence upon which it relied in revoking the appellant’s probation. However, in that case, we made no distinction between that case and prior caselaw nor did we overrule precedent in which this Court found orders in which the trial court specifically lists the witnesses whose testimony the trial court relied upon in revoking probation as sufficient in setting forth the evidence upon which it relied. To the extent that Phillips holds that probation-revocation orders that list the witnesses upon whose testimony the court has relied in revoking probation is not a sufficient statement of the evidence to satisfy due-process requirements, it is hereby overruled. Because we find the probation-revocation order here sufficient, Edwards is not entitled to any relief on this claim.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, SHAW, and WISE, JJ., concur. BASCHAB, P.J., concurs in part and concurs in the result in part, with opinion.

BASCHAB, Presiding Judge,

concurring in part and concurring in the result in part.

I concur with the majority’s conclusion that the appellant did not preserve his claims that his counsel rendered ineffective assistance and that the State did not present sufficient evidence to support the revocation of his probation. I also concur with the majority’s conclusion that the circuit court adequately set forth the evidence upon which it relied in revoking the appellant’s probation in this case. However, I disagree with the majority’s decision to overrule our previous decision in Phillips v. State, 10 So.3d 1088 (Ala.Crim.App.2008).

In its written revocation order in this case, the circuit court merely listed the names of the witnesses who testified at the revocation hearing. In Hodges v. State, 912 So.2d 302, 303-04 (Ala.Crim.App.2005), this court addressed a similar order as follow:

“Although the trial court stated that it was relying on the testimony of Brian Shackleford, Joshua Gates, Michelle Ray, and Hodges, it did not state the substance of that testimony. Therefore, the order does not comport with due process. See, e.g., Pate v. State, 882 So.2d 372, 373 (Ala.Crim.App.2003) (‘Although the trial court stated in its order that it was relying on the testimony of Mark Carroll, Wayne Maddux, and Kim Norris, it did not state the substance of that testimony.... Thus, the order did not sufficiently state the evidence the trial court relied on in revoking Pate’s probation.’); Murphy v. State, 856 So.2d 949, 951 (Ala.Crim.App.2003) (‘Although in its order revoking Murphy’s probation the circuit court named the people who testified at the probation-revocation hearing, it did not state to any extent the substance of that testimony.... Therefore, the order is insufficient.’); and Norwood v. State, 804 So.2d 1164, 1166-67 (Ala.Crim.App.2001) (‘Because the trial judge’s order states only that he relied on the testimony of A1 Dowdy and Felicia Thomas, the order is insufficient, and we must remand the cause so that the court can specify the evidence on which it relied.’).”

Subsequently, in McCoo v. State, 921 So.2d 450 (Ala.2005), the Alabama Supreme Court modified the requirements regarding written revocation orders. In McCoo, the supreme court held:

“[T]he requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f)[, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994)].
“We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court’s order of revocation where the record fails to comply with Rule 27.6(f).”

921 So.2d at 462-63 (emphasis added). Finally, in Ex parte Garlington, 998 So.2d 458, 458-59 (Ala.2008), the supreme court further explained the due process requirements as follows:

“In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ McCoo, 921 So.2d at 462 (emphasis added).”

In this case, the appellant was charged with violating the terms and conditions of his probation by committing the new offense of unlawful distribution of a controlled substance and by not avoiding injurious or vicious habits based on the facts underlying the new offense. At the revocation hearing, the State presented the testimony of three witnesses — the law enforcement officer who set up and monitored a controlled buy; the confidential informant who participated in the controlled buy; and the appellant’s probation officer. The defense did not present any witnesses. Based on the specific facts of this case and the nature of the testimony during the revocation hearing, I agree that the circuit court’s order was sufficient to satisfy the requirements of McCoo and Garlington.

As stated above, I disagree with the majority’s decision to overrule this court’s decision in Phillips v. State, 10 So.3d 1088 (Ala.Crim.App.2008). Although the written revocation order in Phillips is similar to the order in this case, the underlying facts of the two cases are distinguishable. In this case, all of the witnesses who testified at the revocation hearing indicated that the appellant had violated the terms and conditions of his probation. In contrast, in Phillips, the defense presented evidence from Phillips and his mother that he had not, in fact, violated the terms and conditions of his probation. In its written revocation order in Phillips, the circuit court stated that it was relying upon the testimony of several witnesses, including Phillips’s mother. However, based on the conflicting nature of the evidence presented in that case, the mere listing of the names of the witnesses without any reference to the substance of their testimony was not adequate to apprise this court of the circuit court’s basis for determining that the appellant had violated the terms and conditions of his probation. Rather than holding that an order that lists the names of witnesses will always be adequate, I believe this court should evaluate such orders in light of the facts of each particular case. Therefore, I disagree with the majority’s decision to overrule Phillips.

For the above-stated reasons, I respectfully concur in part and concur in the result in part.

      . In McCoo v. State, 921 So.2d 450 (Ala.2005), the Alabama Supreme Court held that the trial court's revocation order may be oral, if the oral findings are recorded or transcribed and if they clearly and unambiguously set forth the reasons for the revocation and the supporting evidence on which the court relied.

      . It appears that the orders in this case and in Phillips were form orders. I caution the circuit court that, when conflicting evidence is presented during a revocation hearing, such form orders might not satisfy the due process requirements set forth in McCoo and Garling-ton.


author: SMITH, Justice.

text:
    Ex parte Scotty EDWARDS, Jr. (In re Scotty Edwards, Jr. v. State of Alabama).
    1081006.
    Supreme Court of Alabama.
    Aug. 14, 2009.
    Janet L. Shannon, Montgomery, for petitioner.
    Submitted on petitioner’s brief only.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   SMITH, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

COBB, C.J., and WOODALL, BOLIN, and PARKER, JJ., concur.

SHAW, J., recuses himself.


author: McMILLAN, Judge.

text:
    Danny Darrell SMITH v. STATE of Alabama.
    CR-07-1275.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 2008.

      Salem Resha, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.
   McMILLAN, Judge.

The appellant, Danny Darrell Smith, appeals from the trial court’s decision to revoke his probation and impose his original sentences of four years’ imprisonment. On August 14, 2006, Smith pleaded guilty to two counts of unlawful possession of a controlled substance. The trial court sentenced him to four years’ imprisonment on each conviction to be served concurrently, suspended the sentences, and placed him on probation for five years. On May 30, 2007, the trial court revoked Smith’s probation and reinstated the original sentences. The coui't also recommended that Smith be placed in a community-corrections program. On August 8, 2007, Smith was placed on work release through the Houston County community-corrections program. On March 6, 2008, his probation officer filed a delinquency report, charging that he had failed to comply with the conditions, rules, and regulations of the work-release program and with the instructions of his probation officer by committing the following violations:

“1. Inmate Smith was terminated from employment with Perdue Farms after a 3 day suspension for insubordination. Inmate Smith was also terminated due to a complaint of sexual harassment at Perdue Farms. Also a direct order was disobeyed given by his supervisor to have no contact with that individual. After the meeting Inmate Smith went directly to that individual and stated that ‘We’re going to get this shit straight’. David Weimer, RIO Facilitator, advised that due to the circumstances of Inmate Smith’s termination that he was not a suitable candidate for the Work Release Program and that he was unemployable.
“2. Inmate Smith gave a urine sample on 2/29/08. Officer Weber tested the sample on our in-house Syva Junior Drug Analysis Machine and it came up positive for cocaine on 3/06/08. All positive tests are run twice for verification.”

On March 24, 2008, the trial court conducted a revocation hearing. Smith’s counsel informed the court that Smith admitted losing his job at Perdue Farms, although he disputed the reasons he was given for his firing. Counsel also stated that he had spoken to a representative of the community-corrections program, who told him that they were not interested in having Smith return to the program. After the hearing, the trial court entered a written order that Smith was “to serve [his original] sentence^] ... ['with] credit for time served.”

I.

Smith contends that the trial court erred in revoking his probation for the following reasons: (1) The trial court did not allow him to confront and cross-examine the witnesses against him; (2) the trial court revoked his probation based solely on the evidence in the delinquency report, which was hearsay; and (3) his appointed counsel was ineffective.

“The general rules of preservation apply to probation revocation hearings.” Oivens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998). This court has recognized only three exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) The requirement that there be an adequate written order of revocation, (2) the requirement that a revocation hearing actually be held, and (3) the requirement that the defendant be advised of his right to request an attorney. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996); Law v. State, 778 So.2d 249, 250 (Ala.Crim.App. 2000). Smith’s claims do not fall within any of the three recognized exceptions, and Smith failed to present his claims to the trial court. Therefore, they were not preserved for appellate review.

II.

Smith contends that the trial court also erred in revoking his probation because the court’s written revocation order did not state the evidence upon which the court relied and its reasons for revoking probation.

“[T]he requirement of Wyatt [v. State, 608 So.2d 762 (Ala.1992),] and its associated cases — that the trial court enter a written order stating its reasons for the revocation and the evidence relied upon regardless of the state of the record — is no longer applicable. Henceforth, the Court of Criminal Appeals may determine, upon a review of the record, whether the requisite Rule 27.6(f) [, Ala. R.Crim. P.,] statements are presented by that record. Thus, the Court of Criminal Appeals may examine the record and conclude that ‘oral findings, if recorded or transcribed, can satisfy the requirements of Morrissey [v. Brewer, 408 U.S. 471 (1972),] when those findings create a record sufficiently complete to advise the parties and the reviewing court of the reasons for the revocation of supervised release and the evidence the decision maker relied upon.’ [United States v.] Copeland, 20 F.3d [412,] 414 [(11th Cir.1994)].
“We hasten to note that our holding in this case does not diminish the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons. The requirements of Wyatt will still be fully applicable in those situations where the record, for lack of transcription of the revocation hearing or for some other reason, fails to clearly and unambiguously set forth the reasons for the revocation and the evidence that supported those reasons. Thus, the requirements of Wyatt are fully applicable to the trial court’s order of revocation where the record fails to comply with Rule 27.6(f).”

McCoo v. State, 921 So.2d 450, 462-463 (Ala.2005).

The record does not contain any oral findings by the trial court, and the court’s written order does not indicate the evidence on which it relied or its reasons for revoking probation. Therefore, we must remand this case to the trial court with instructions that it enter a written order specifically stating the reasons for revoking Smith’s probation and the evidence supporting those reasons. A return should be filed with this court within 21 days after the release of this opinion.

REMANDED WITH INSTRUCTIONS.

SHAW, WISE, and WELCH, JJ., . concur. BASCHAB, P.J., concurs in the result.


author: WISE, Presiding Judge.

text:
    Joseph PRUITT v. STATE of Alabama.
    CR-07-0402.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Mari Morrison, Birmingham, for appellant.
    Troy King, atty. gen., and Jean-Paul Michael Chappell, asst. atty. gen., for ap-pellee.
   WISE, Presiding Judge.

On October 21, 2005, the appellant, Joseph Pruitt, was convicted of first-degree rape and first-degree sexual abuse. On December 7, 2005, the trial court sentenced him to serve consecutive terms of life in prison on the rape conviction and ten years in prison on the sexual abuse conviction. We affirmed his convictions in an unpublished memorandum and issued a certificate of judgment on July 11, 2006. See Pruitt v. State, (CR-05-0698) 978 So.2d 81 (Ala.Crim.App.2006) (table). On June 25, 2007, Pruitt filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

In his petition, Pruitt raised ineffective-assistance-of-trial-counsel allegations. The State did not respond specifically to all of those allegations, and the circuit court did not specifically address them. Rather, the State argued, and the circuit court found, that Pruitt should have raised the claims on direct appeal. However, the record from Pruitt’s direct appeal indicates that he was sentenced on December 7, 2005, and the record on appeal was completed on March 8, 2006.

“[I]n any cases in which the defendant is convicted after the date this opinion is released, an ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal.
“When a defendant makes a claim of ineffective assistance of trial counsel, and that claim cannot reasonably be presented in a new trial motion filed within the 30 days allowed by Rule 24.1(b), Ala. R.Crim. P., the proper method for presenting that claim for appellate review is to file a Rule 32, Ala. R.Crim. P., petition for post-conviction relief.”

Ex parte Ingram, 675 So.2d 863, 865-66 (Ala.1996). In this case, appellate counsel did not have access to the record on appeal in time to raise ineffective-assistance-of-trial-counsel allegations within 30 days after Pruitt was sentenced. Therefore, the circuit court improperly found that Pruitt should have raised such allegations on direct appeal.

Accordingly, we remand this case to the circuit court for that court to make specific, written findings of fact concerning Pruitt’s ineffective-assistance-of-trial-counsel allegations. On remand, the circuit court may order the State to respond to all of Pruitt’s specific allegations and/or may conduct an evidentiary hearing on those allegations. If the circuit court determines that Pruitt is entitled to relief, it may order such relief. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact; a copy of the State’s additional response, if any; and a transcript of the remand proceedings, if any, conducted by the circuit court.

REMANDED WITH INSTRUCTIONS.

WELCH, WINDOM, and KELLUM, JJ., concur.

      . We have taken judicial notice of the record from Pruitt's direct appeal in this case. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998).

      . We pretermit discussion of Pruitt’s remaining claims at this time.


author: PER CURIAM.

text:
    John CHRISTIANSEN, Petitioner, v. STATE of Florida, Respondent.
    No. SC08-2243.
    Supreme Court of Florida.
    Dec. 3, 2009.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss and Timothy A. Freeland, Assistant Attorneys General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Christiansen v. State, 993 So.2d 173 (Fla. 2d DCA 2008), in which the Second District Court of Appeal cited as authority its decision in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), quashed, 17 So.3d 275 (Fla.2009), and, as it had done in that case, certified conflict with decisions of another district court of appeal. At the time the Second District issued its Christiansen decision, Sheppard was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3)-(4), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of Sheppard v. State, 17 So.3d 275 (Fla.2009), in which we ultimately quashed the Second District’s underlying Sheppard decision. We then issued an order directing respondent in the present case to show cause why we should not accept jurisdiction, quash the Second District’s underlying Christiansen decision, and remand for reconsideration in light of our decision in Sheppard. Respondent in its response concedes that it can show no such cause.

We have accordingly determined to exercise jurisdiction and grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Second District for reconsideration upon application of this Court’s Sheppard decision.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Queen Elizabeth COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-1294.
    Supreme Court of Florida.
    Dec. 3, 2009.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Jonathan P. Hurley, Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

We have for review Collins v. State, 12 So.3d 227 (Fla. 2d DCA 2009) (table), in which the Second District Court of Appeal cited as authority its decision in Sheppard v. State, 988 So.2d 74 (Fla. 2d DCA 2008), quashed, 17 So.3d 275 (Fla.2009). At the time the Second District issued its Collins decision, Sheppard was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending our disposition of Sheppard v. State, 17 So.3d 275 (Fla.2009), in which we ultimately quashed the Second District’s underlying Sheppard decision. We then issued an order directing respondent in the present case to show cause why we should not accept jurisdiction, quash the Second District’s underlying Collins decision, and remand for reconsideration in light of our decision in Sheppard. Respondent in its response concedes that it can show no such cause.

We have accordingly determined to accept jurisdiction and grant the petition for review in the present case. The decision under review is quashed and this matter is remanded to the Second District for reconsideration upon application of this Court’s Sheppard decision.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Eddie RILEY, Respondent.
    No. SC08-2116.
    Supreme Court of Florida.
    Dec. 10, 2009.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, Michael T. Kennett, and Anne Catherine Conley, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Joshua Byrne Spector of Perlman, Yevo-li and Albright, P.L., Fort Lauderdale, FL, for Respondent.
   PER CURIAM.

This Court initially accepted jurisdiction to review Riley v. State, 25 So.3d 1 (Fla. 1st DCA 2008), a decision in which the First District Court of Appeal certified the following question to be of great public importance:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 So.2d 517 (Fla.2007), MAY A COURT FIND THAT THE FAILURE TO INSTRUCT THE JURY ON THE NEXT LESSER INCLUDED OFFENSE CONSTITUTES HARMLESS ERROR?

Id. at 4. After further consideration, this Court concludes that it should decline to exercise its discretionary jurisdiction. Accordingly, this review proceeding is dismissed.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.


author: CANADY, J.,

text:
    STATE of Florida, Petitioner(s) v. Freddrick HINES, Respondent(s).
    No. SC08-1204.
    Supreme Court of Florida.
    Jan. 21, 2010.
   On September 29, 2008, this Court entered its order accepting jurisdiction and on October 1, 2009, issued its order setting oral argument. Since there are not four justices that agree on the disposition of this case, and there not being any extraordinary circumstances that would justify deciding the case, jurisdiction is hereby discharged.

No Motion for Rehearing will be entertained by the Court. See Fla. RApp. P. 9.330(d)(2).

PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.

CANADY, J., concurs in result only with an opinion, in which QUINCE, C.J., concurs.

POLSTON, J., recused.

CANADY, J.,

concurring in result only.

The Court being equally divided regarding the disposition of this case, I concur in the decision to discharge jurisdiction. In my view, the Court should retain jurisdiction and quash the decision of the First District Court of Appeal.

QUINCE, C.J., concurs.