author: MOORE, Judge.

text:
    WEHADKEE YARN MILLS v. Deborah HARRIS.
    2080281.
    Court of Civil Appeals of Alabama.
    Sept. 4, 2009.
    John C. Webb V of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellant.
    Donald W. Lang, Sylacauga, for appel-lee.
   MOORE, Judge.

Wehadkee Yarn Mills (“Wehadkee”) appeals from a judgment of the Talladega Circuit Court (“the trial court”) finding that Deborah Harris had suffered a permanent and total disability as a result of her on-the-job injury while working for Wehadkee. We reverse the trial court’s judgment and remand the case to the trial court.

Facts

Harris, who was born on December 4, 1958, testified that she dropped out of school after she completed the eighth grade. According to Harris, she began working for Wehadkee in September 1989. Harris testified that, in 2004, she began working in the lab at the Wehadkee mill. Michael Whitman, the general manager of manufacturing for Wehadkee, testified that Harris’s job as a lab technician required her to test the products made at the mill, to record the data derived from those tests, to keep records of the data, to supply the data to the customers as required, and to assist the management and other employees of Wehadkee in any type of investigation as to any quality complaints or quality-assurance issues. Harris stated that the packages of yarn that she was required to lift weighed 3 to 12 pounds and that her job required repetitive movement. According to Whitman, the packages weighed 7 to 12 pounds.

Harris testified that her quality-control manager, Tony Sisk, had requested, about two weeks before her injury, that Harris begin taking larger quantities of yarn off the spindle because of the large amount of waste that was created when small quantities of yarn were taken for testing. On February 7, 2006, according to Harris, as she was removing a package of yarn from a spindle for testing, she felt as though she had busted a blood vessel in her right thumb. Harris testified that she had pain in her thumb at the time of the injury and that, when she went home, her hand began to swell. According to Harris, she had not suffered an injury to her right wrist, her thumb, her elbow, or her arm before she incurred her injury while working for Wehadkee. She further stated that the pain went from the base of her thumb, into her wrist, and down her ring finger and her little finger on her right hand. Harris testified that, when she woke up on the morning after the injury had occurred, her hand looked like a baseball and she could not move her wrist. She stated that she went to work that day and reported her injury to Sisk.

According to Harris, she first went to a doctor of her own choosing, Dr. Richard Snouffer, who told her to wear a brace for her wrist and prescribed her anti-inflammatory medication. She stated that Dr. Snouffer told her not to use her right hand for eight weeks because of the injury to her thumb and that she gave that information to Sisk. According to Harris, after she reported to Sisk and an employee named Donna, who worked in the office at the Wehadkee mill, that she had seen a doctor, Wehadkee then sent her to see Dr. Leigh Murphy at Talladega Surgery Associates on February 14, 2006. According to Dr. Murphy’s medical records, Dr. Murphy diagnosed Harris with De Quervain’s teno-synovitis in her right wrist. Dr. Murphy’s March 21, 2006, entry indicates that Dr. Murphy believed that Harris had arthritis in her wrist that had been aggravated in the preceding month. Dr. Murphy also stated that Harris had “significant digital and wrist stiffness which is unrelated to her tenosynovitis.”

Harris testified that Dr. Murphy referred her to Dr. Gordon Hardy, an orthopedic surgeon, in March 2006. According to Harris, on her first visit to Dr. Hardy, he gave her a cortisone shot in her thumb. Harris stated that the cortisone shot had not done any good and that she later underwent surgery on April 11, 2006. According to Harris, at the time she had the surgery, her hand was severely swollen and very painful. She stated that, after the surgery, the severe shooting pain was gone but her injury was still very painful and her hand was still swollen. She stated that, after the surgery, she could not move her wrist and she could not write with her hand. She said the condition of her hand was about the same after the surgery. According to Harris, Dr. Hardy injected cortisone shots into her wrist a couple of months after the surgery. Harris stated that, when she followed up with Dr. Hardy after her surgery, he indicated that he thought her wrist pain was due to some type of arthritis in her wrist. She stated that Dr. Hardy referred her to Physiotherapy Associates for physical therapy at the end of April 2006 and that she was in therapy for about three months. According to Harris, the pain was not as severe after she began physical therapy. Dr. Hardy placed Harris at maximum medical improvement (“MMI”) on December 5, 2006. Dr. Hardy also gave Harris a 6% impairment rating to the body as a whole as a result of her right-thumb and wrist condition.

According to Harris, after she completed physical therapy, Dr. Hardy sent her to Rehab Partners to undergo a functional-capacity evaluation (“FCE”). The FCE report indicated that Harris gave a consistent effort during the testing. The recommendations in the FCE repoi't were that lifting and carrying should not exceed 10 pounds on a frequent basis, that right unilateral carrying should not exceed 5 pounds on a frequent basis, and that right handling tasks should be limited to an occasional basis.

Harris stated that Dr. Hardy also sent her to Dr. Vishala Chindalore for a onetime evaluation. Later, according to Hardy, she requested and was given a panel of four physicians from which to select a doctor for a second opinion, see § 25-5-77(a), Ala.Code 1975; she selected Dr. Richard Meyer, an orthopedic surgeon. Harris stated that she first saw Dr. Meyer on approximately December 27, 2006. She had an MRI on her right wrist and followed up with Dr. Meyer on April 5, 2007; Dr. Meyer explained to Harris at that time that, in his opinion, her wrist pain was being caused by rheumatoid arthritis rather than the injury to her thumb. Dr. Meyer placed Harris at MMI on April 5, 2007.

Harris testified that she had been seeing Dr. Monica Crawford, a rheumatologist, since July 2007. She said that she had not had any wrist pain before her injury. Harris testified that none of the doctors she had visited had diagnosed her wrist injury as being a result of her incident at work. Harris stated that she had no pain above two inches above her wrist.

Harris testified that she had continued to work for Wehadkee until Wehadkee went out of business in June 2007. She stated that she never returned to the job that she had been performing before her injury but that, during the last four or five months before the Wehadkee mill shut down, she did what she could with her left hand. Whitman stated that Harris was given light-duty restrictions after her injury and that Wehadkee had accommodated those restrictions by having someone else collect the packages of yarn and bring them to the lab for her. Whitman stated that he was Harris’s supervisor from November 2006 until the mill closed and that, to the best of his knowledge, Harris had not missed any work as a result of her injury. According to Whitman, by the time the Wehadkee mill closed, Harris was able to perform the majority of her job duties without restrictions, although she worked alongside another employee and would still ask for help when lifting the packages of yarn. Whitman stated that Harris had been able to perform her job, though she may have performed it slower than someone who did not have a hand injury would have.

When the Wehadkee mill closed down in June 2007, Hams filed for unemployment-compensation benefits. She stated on her application for those benefits that she was eligible and ready for work. According to Harris, she received unemployment-compensation benefits for five or six months.

Harris testified that she then went to work at a Wal-Mart discount department store for approximately five months. According to Harris, she worked close to full time at the Wal-Mart store as a receiving associate or a stocker, which required her to take toys out of a box and place them on the shelves. Harris testified that she could not adequately perform the work required of her at the Wal-Mart store because she was still having difficulty with her thumb, hand, and wrist. She also testified that she never should have taken that job because she was in a lot of pain trying to work and there were a lot of things that that job required that she could not do. She stated that her last day at the Wal-Mart store was May 28, 2008. Harris testified that, at the time of trial, she had been approved for Social Security disability benefits but had not received her first check. Harris also testified that she had taken the General Equivalency Diploma (“GED”) exam in December 2007, while she was working at the Wal-Mart store, but that she had not passed the test.

Jo Spradling, a licensed professional counselor and therapist, testified that she had met with Harris on August 11, 2008, and had discussed Harris’s educational background, work history, and medical history. Spradling stated that she took that information and Harris’s FCE report, because it included Harris’s physical capacity for work, into account in determining Harris’s vocational loss. According to Spra-dling, a physical restriction is something a doctor assigns to an individual, while a physical limitation is a weakness or impairment “that a person suffers in and of himself.” Spradling testified that the FCE report reflected Harris’s physical limitations, whereas none of Harris’s physicians had performed a physical-capacity test on Harris to determine her physical restrictions. The FCE report indicated that Harris is “able to perform work in the sedentary physical demand strength level with intervention,” and it assigned Harris a 6% impairment to the body as a whole, taking into account her thumb and her wrist, and a 14% impairment to the body as a whole, when also taking her elbow into account. Spradling stated that, in her opinion, Harris is unable to return to any form of gainful employment and is 100% vocationally disabled, which, Spradling stated, amounts to a 100% loss of earning capacity.

Spradling also testified that she had based her opinion on the condition of Harris’s right upper extremity and that she had not made a differentiation between the injury caused by Harris’s work accident and the overall condition of Harris’s right upper extremity. She stated that she had based her opinion on Harris’s description of her physical limitations as well as the FCE report and Harris’s medical records. Spradling testified further that Harris had no transferable skills from her previous employment because the job Harris had performed was “position-specific” and, Spradling stated, Harris would have minimal to no transferable skills for her current physical demand level.

Spradling testified that she did not believe Harris would be a qualified and suitable applicant in the regional economy. She stated that she had looked at occupations in the Talladega County area that had been posted with the employment service and that she had not found any positions for which Harris was qualified. Spradling also stated that both her company and the Social Security Administration considered a return to work for six months or greater as a successful return to work and that, because Harris had worked at the Wal-Mart store for only five months, that was not considered a successful return to work.

Harris testified that, at the time of the trial, she was in constant pain from her injury, which she rated at a 5 or a 6 on a scale of 0 to 10, and that simple activities, such as washing dishes, putting on makeup, or putting any pressure on her wrist, increased her pain. According to Harris, when she tried to perform those simple activities, her pain increased to 8 on a scale of 0 to 10, and she stated that, if she tried to perform more heavy-duty activities, her pain would increase even more. She stated that she took the prescription di’ugs Lortab and methotrexate for pain and that she also took ibuprofen at times instead of the Lortab because the Lortab caused her to fall asleep. Harris stated that she is right-handed and that, since the injury, she can lift only about five pounds with her right hand.

Harris stated that, since her injury, she can no longer do certain household chores, like mopping, vacuuming, washing the dishes, and folding heavier clothing items like jeans. She stated that her daughter and her husband have to perform the housework. She stated also that her husband does the grocery shopping because she is unable to lift the grocery items. Hams stated that she had loved working in her yard before the injury but that she has been unable to enjoy that activity since her injury. She also stated that she is no longer able to sew or crochet, which were her hobbies before her injury.

Harris stated that she now drives with her left hand and that she only drives short distances. She stated that she had to have her long hair cut short because she was unable to fix it with only her left hand. She also stated that, because she is not coordinated enough to put on eye makeup with her left hand, she does not wear any. She stated that she has trouble bathing and dressing herself and that her husband has to help her at times and that he also has to put her jewelry on for her. Harris further stated that she does not cook much anymore because she cannot open jars, remove things from the cabinets with her right hand, or use a manual can opener. She also stated that she has trouble cutting up food and that her husband has to cut up her steak for her. She said that she has very little ability to grip with her right hand.

Harris testified that, when she wakes up in the morning, her hand is very stiff and she has to run hot water on it to help give her fingers movement. She also stated that she is unable to sleep through the night because the pain in her hand wakes her up at least twice a night.

Katrina McGrady, Harris’s daughter, testified that, since Harris’s injury, she has found it necessary to visit Harris every weekend to help her around the house with chores, including cooking, because Harris cannot pick up her pots and pans; sweeping; mopping; doing laundry, because Harris cannot wash the larger items; making beds; cleaning counters, the toilet, and the bathtub; gardening; and shopping at times, because Harris is unable to carry grocery bags. McGrady also stated that she assists Harris by writing checks for Harris’s bills. McGrady further stated that she had witnessed Harris crying and holding her hand and that she can tell Harris is in pain almost every weekend when she visits.

Procedural History

Harris filed a complaint against Wehad-kee on May 14, 2007, seeking workers’ compensation benefits as the result of her injury. Wehadkee filed an answer to Harris’s complaint on June 29, 2007.

Following ore tenus proceedings on August 26, 2008, the trial court entered a final judgment on September 22, 2008, in which it made the following findings, among others:

“13. The Court finds that the injuries to [Harris’s] upper extremity, and the resulting pain and disability therefrom, extends to other parts of her body and interferes with their efficiency in accordance with the tests adopted in the case of Ex parte Drummond Company, Inc. v. Kenneth C. Pate, 837 So.2d 831 [(Ala.2002)];
“14. The Court further finds that [Harris] suffers from chronic pain which is severe, excruciating, and debilitating in accordance with the pain outlined in the case of [Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005), aff'd, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007)], and that this pain within itself precludes [Harris] from engaging in any reasonable, gainful employment;
“15. This Court was impressed by [Harrisj’s demeanor, which was borne out by the testimony at trials to the effect that [Harris] was an excellent employee during the 17 years she was employed by [Wehadkee] up until her injury, that, following her injury, [Harris] made every effort to accomplish all that she could and to be helpful in whatever she was assigned, the determination of Rehab Partners that [Harris] exerted maximum effort in the Functional Capacities Evaluation tests, as well as her effort to return to full time employment following the closing of [WehadkeeJ’s facility, and this Court finds that [Har-risj’s testimony is very credible. Based upon the foregoing, as well as all of the proof in this case, this Court finds that [Harris] is permanently and totally unable to perform [Harrises trade and is permanently and totally unable to obtain any type reasonable gainful employment, and the Court finds that [Harris] suffers a 100% permanent and total disability to the body as a whole with a consequent 100% loss of earning capacity;
“16. The Court finds that [Harrises permanent and total disability is the proximate result of [Harris’s] on-the-job injuries that [Harris] testified to in open court;
“17. [Harris] has not refused to undergo physical or vocational rehabilitation that she is able to perform and based upon [Harrisj’s educational background and work experience [Harris] may not ever be rehabilitated;
“18. [Harrises average weekly wage for the 52 week period of time prior to the date of her injury was Five Hundred, Fifty-two and 00/100 ($552.00), as stipulated to above, making [Harrises compensation rate be Three Hundred, Sixty-eight and 02/100 ($368.02) per week;
“19. [Harris] has suffered a 100% total disability as the proximate result of her on the job injuries for which [Harris] is entitled to receive compensation from [Wehadkee] at the rate of Three Hundred, Sixty-eight and 02/100 Dollars ($368.02) per week for [Harrises lifetime or the duration of [Harris]’s disability.”
Wehadkee filed a motion to alter, amend, or vacate the judgment on October 21, 2008; the trial court denied that motion on November 14, 2008. Wehadkee filed its notice of appeal to this court on December 15, 2008.

Standard of Revieiv

Our review of workers’ compensation cases is governed by § 25-5-81 (e), Ala. Code 1975, which states:

“(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.”

In Pipeline Technic, L.L.C. v. Mason, 6 So.3d 1176, 1178 (Ala.Civ.App.2008), this court explained:

“Substantial evidence is 1 “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). ‘This court’s role is not to reweigh the evidence, but to affirm the judgment of the trial court if its findings are supported by substantial evidence and, if so, if the correct legal conclusions are drawn therefrom.’ Bostrom Seating, Inc. v. Adderhold, 852 So.2d 784, 794 (Ala.Civ.App.2002).”

Discussion

Wehadkee first argues on appeal that the trial court erred by awarding Hams permanent-total-disability benefits outside of the schedule provided in § 25-5-57, Ala. Code 1975 (“the schedule”), because, Weh-adkee argues, there was not substantial evidence to support the trial court’s award of benefits to Harris for an injury to her right upper extremity. Specifically, Weh-adkee asserts that there is no support for the trial court’s finding that the injury affected any area of Harris’s body other than her right wx-ist and her right thumb or that those injuries interfered with the efficiency of Harris’s other body parts.

In Ex paite Drummond Co., 837 So.2d 831 (Ala.2002), the Alabama Supreme Court adopted the following test regarding the removal of an injury extending to other parts of the body from the schedule: “ ‘[I]f the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ” 837 So.2d at 834 (quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001)).

In Boise Cascade Corp. v. Jackson, 997 So.2d 1042 (Ala.Civ.App.2008), this court explained:

“Based on the holding in Ex parte Jackson, [997 So.2d 1038 (Ala.2007)], in order to prove that the effects of the injury to the scheduled member ‘extend to other parts of the body and interfere with their efficiency,’ the employee does not have to prove that the effects actually cause a permanent physical injury to nonscheduled parts of the body. Rather, the employee must prove that the injury to the scheduled member causes pain or other symptoms that render the nonscheduled parts of the body less efficient.”

997 So.2d at 1044. In the present case, Harris testified that her pain did not extend beyond two inches above her wrist. There is no evidence in the record indicating that Harris had pain or symptoms other than in her right thumb and her right wrist that rendered any other part of her body less efficient. The injuries to Harris’s right thumb and right wrists are injuries to scheduled members pursuant to § 25-5-57(a)(3).

Based on Ex parte Drummond, Ex parte Jackson, 997 So.2d 1038 (Ala.2007), and the evidence presented in the record in this case, we cannot conclude that Harris’s injury extended to other parts of her body and interfered with their efficiency so as to bring her injury outside the schedule. This is not the end of our inquiry, however.

Wehadkee further argues that the trial court erred in finding that Harris was entitled to benefits outside the schedule based on the severe debilitating pain resulting from her injury.

The Alabama Supreme Court stated in footnote 11 in Ex parte Drummond,:

“This case does not present a situation in which the pain, although isolated to the scheduled member, causes a disability to the body as a whole. We recognize that pain can be totally, or virtually totally, debilitating, but this case does not present such a situation; therefore, we decline to address that situation here.”

837 So.2d at 836 n. 11. In the present case, the trial court relied on Masterbrand Cabinets, Inc. v. Johnson, 984 So.2d 1136 (Ala.Civ.App.2005) (plurality opinion), aff'd, Ex parte Masterbrand Cabinets, Inc., 984 So.2d 1146 (Ala.2007), in awarding Harris benefits outside the schedule. In Johnson, this court, in an attempt to apply footnote 11 in Ex parte Drummond, stated:

“Clearly, pain isolated to a scheduled member might be sufficiently constant and severe, even when the worker refrains from using the scheduled member, that it would cause a debilitating effect to the body as a whole that is greater than the disability resulting from the loss of, or the loss of use of, that scheduled member as contemplated by § 25-5-57(a)(3)[, Ala.Code 1975]. The Legislature undoubtedly assumed that there could be ongoing pain associated with the loss of or a permanent injury to a scheduled member. The question becomes whether the pain associated with a lost member, or with a permanently injured member even when the worker avoids the use of that member to the extent he or she reasonably can do so, either extends to other parts of the body and interferes with their efficiency or is sufficiently abnormal in its frequency or continuity and in its severity that it has a debilitating effect on the body as a whole. We believe this understanding of the Legislature’s intent in enacting § 25-5-57(a)(3) is consistent with our Supreme Court’s holding in Ex parte Drummond, as well as with the repeated admonitions by our Supreme Court that the Workers’ Compensation Act is intended to serve a beneficent purpose and should be construed so as to effect that purpose. See, e.g., Ex parte Strickland, 553 So.2d 593, 595 (1989).

984 So.2d at 1144-45.

In Norandal U.S.A., Inc. v. Graben, 18 So.3d 405, 414 (Ala.Civ.App.2009), however, this court declined to follow the rule as outlined in Johnson, and stated:

“[W]e hold, consistent with the language from footnote 11 in Ex parte Drummond, that a worker who sustains a permanent injury to a scheduled member resulting in chronic pain in the scheduled member that is so severe that it virtually totally physically disables the worker would not be limited to the benefits set out in the schedule. To the extent the plurality opinion in Johnson states some other test, we reject that opinion.”

In Graben, the trial court had made the following findings of fact relating to the pain resulting from the employee’s injury:

‘“11. The Court has carefully considered the pain experienced by [the employee] as a result of his right leg injury. The Court has considered the intensity of the pain, which the Court finds to average 7 out of 10 in intensity. The pain has been described as severe, throbbing, chronic, and sometimes sharp. The Court finds this is a reasonable description of his pain. This is true, even though [the employee] does not work and refrains from using the right leg to the extent he reasonably can do so. The behavioral observations made by the Court during the trial support these findings. The Court has considered the duration of the pain and finds it chronic and constant. [The employee] lies down several hours each day because of the pain. The Court observed that he ambulates slowly and in a guarded and protected fashion. The Court finds that he has poor balance and an extremely altered gait due to the weakness and buckling of his right leg. [The employee] now walks with the use of a cane. The pain has grown significantly worse with time. The severe pain experienced by [the employee] causes significant sleep disturbances for him. Additionally, [the employee] must take prescription medication for this pain, including medications for neuropathic pain.
“ T2. The Court finds that the pain experienced by [the employee] as a result of his right leg injury is sufficiently constant and severe, even when [the employee] refrains from using the scheduled member, that it has caused a debilitating effect on his body as a whole. This pain impairs the body as whole in a manner not contemplated by the schedule. This ongoing pain is so continuous and severe that in a real sense, the effect of this pain is extending to other parts of his body and interfering with their efficiency. It adversely affects his ability to sleep, resulting in a material deterioration in his physical health.’ ”

18 So.3d at 414. The trial court in Graben, just like the trial court in the present case, relied on Johnson in determining that, “based solely on the debilitating effect of the pain from the [employee’s] injury, the employee was entitled to compensation outside the schedule.” 18 So.3d at 414. In remanding the case to the trial court in Graben, this court stated:

“In its factual findings, the trial court focused mainly on the frequency and severity of the pain caused by the employee’s right-knee injury. The trial court noted that this pain affects the employee’s ambulation and sleep patterns, but the trial court did not make any findings regarding any other effects of the pain on the employee’s physical abilities. More specifically, the trial court did not determine whether the effects of the right-knee pain virtually totally physically disable the employee. Because the legislature has declared that it is the trial court’s duty to make the appropriate factual findings, see Ala. Code 1975, § 25-5-88, we are required to remand the case so that the trial court can make the appropriate findings rather than search the record to reach our own conclusions.”

Graben, 18 So.3d at 416.

In the present case, the trial court, in making factual findings with regard to Harris’s pain, referenced the test outlined in Johnson rather than the one discussed in G^-aben. Harris testified at trial that, after the surgery on her hand, her hand remained swollen and it still caused her pain. She stated further that, after the surgery, she could not write with her hand and she could not move her wrist.

Wehadkee asserts that it is not necessary to remand the present case to the trial court, as was done in Graben, because, Wehadkee says, there is no evidence indicating that Harris’s pain met the standard enunciated in Graben. Wehadkee argues that a line of cases decided after Johnson declined to apply Johnson and award benefits outside the schedule in cases involving an employee’s debilitating pain, and, thus, Wehadkee argues, if the evidence in the present case fails to meet the standard enunciated in Johnson, it would surely not meet the heightened standard in Graben. We disagree. As stated in Graben, the Johnson case was a plurality opinion, which has “questionable precedential value at best.” Graben, 18 So.3d at 415. See also Ex parte Discount Foods, Inc., 789 So.2d 842, 845 (Ala.2001). The cases decided after Johnson, but before Graben, were not required to follow Johnson. Thus, those same cases do not provide us with precedential value regarding the decision to award benefits outside the schedule based on debilitating pain in accordance with the standard outlined in Graben. In fact, this court observed in Graben that this court had cited Johnson on several occasions and had analyzed subsequent cases based on its reasoning, yet the court in Graben declined to make an independent conclusion based on the facts in the record upon a comparison of those facts to the facts presented in the cases that had cited or analyzed Johnson. 18 So.3d at 416.

Because in this case, as in Graben, the trial court improperly considered the standard enunciated in Johnson, we likewise remand the present case to the trial court with instructions that it make factual findings regarding whether Harris’s pain was such as to “virtually totally physically disable” her, as required by the standard set forth in Graben, 18 So.3d at 416.

Wehadkee next argues that the trial court exceeded its discretion by considering evidence of Harris’s vocational disability. Wehadkee is correct that the compensation of a scheduled injury is governed exclusively by § 25-5-57(a)(3), Ala.Code 1975, and that, when compensation is governed by the schedule, “evidence of vocational disability cannot serve to further any recovery.” Smith v. Michelin North America, Inc., 785 So.2d 1155, 1159 (Ala.Civ.App.2000). Because we are remanding this case to the trial court to determine whether Harris’s pain is such that it removes her injury from the schedule, however, we decline to consider at this time whether the trial court properly considered evidence of Harris’s vocational disability in fashioning Harris’s workers’ compensation award.

Likewise, we decline to consider Wehad-kee’s final argument regarding the trial court’s finding that Harris was permanently and totally disabled as the result of the injury to her thumb. Because we are remanding the case to the trial court for consideration of whether to award Harris benefits outside the schedule, we decline to consider the trial court’s resulting finding that Harris was permanently and totally disabled.

The trial court’s judgment is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, JJ., concur.

      . The parties stipulated that notice of Harris’s accident was proper under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975.

      “3 By way of example, a worker could experience ongoing pain from an injured member that is so continuous and severe, even when the worker refrains from the use of that member, as to materially adversely affect the worker’s ability to use his mind or to concentrate to the degree necessary to accurately or safely perform various tasks. In a real sense, the effect of such pain could properly be considered as ‘extending] to other parts of the body and interfer[ing] with their efficiency.’ ”


source: Caselaw Access Project

author: WISE, Presiding Judge.

license: Public Domain

text:
    Taurus Lamont BELL v. STATE of Alabama.
    CR-06-2136.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Rehearing Denied April 24, 2009.
    Certiorari Denied Sept. 11, 2009 Alabama Supreme Court 1080995.

      Edward D. Tumlin, Birmingham, for appellant.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Taurus Lamont Bell, was convicted of the capital offense of arson-murder, a violation of § 13A-5-40(a)(9), Ala.Code 1975. The trial court sentenced him to imprisonment for life without the possibility of parole. Bell did not file any post-judgment motions. This appeal followed.

The State presented evidence that, on the night of February 3, 2000, the victim, Patricia Woodruff, was preparing for a trip the following morning to visit a casino with friends and family members. At some point before daybreak the next morning, the victim’s house was consumed by fire, and her badly charred body was later discovered in the house. When investigators found the victim’s body, they observed a ligature with a buckle on it around her neck and duct tape on her face.

Jermaine Dunn, the victim’s son, testified that he last saw his mother around 11:30 p.m. on February 3, 2000. At that time, she was putting approximately two handfuls of quarters, dimes, and nickels into a bag in preparation for the trip the next day. Dunn also testified that his mother smoked, that she kept candles and an ashtray on the glass coffee table in the living room, and that the house was heated by kerosene heaters and an electric heater.

Clarence Woodruff, the victim’s brother, testified that he saw the victim between 9:00 p.m. and 9:15 p.m. on February 3, 2000. They were going to a casino the next day, and she had coins in a plastic grocery bag to take with her. The top of the bag was twisted down to the coins but was not tied.

James Sawyer testified that he worked as a butcher at Evans Meats; that, in the early morning hours of February 4, 2000, he was outside with his cousin, Marcus Hudson, smoking when he saw a black male who was wearing a brown freezer suit or coveralls; that Hudson spoke with the man; and that a vehicle that belonged to Alfonso Tellis, a co-worker, was later determined to be missing from the parking lot. At trial, Marcus Hudson identified Bell as the person he spoke to in the parking lot at Evans Meats.

Danny Humphrey testified that he was employed with the Jefferson County Sheriffs Department on the night of February 3, 2000; that, around 3:10 a.m., he noticed that a vehicle was stopped with the engine running in a store parking lot near the victim’s house; that the store was closed, and there was not anyone in the vehicle; that the steering column in the vehicle was broken, and a passenger side window had been broken out; that he checked and determined that the vehicle belonged to Alfonso Tellis, but had not been reported stolen; that he had the vehicle towed; and that he then went to the victim’s house around 5:00 a.m.

Linda Anderson and Bill Gaskey testified that they saw a man dressed in brown coveralls walking in the vicinity of the victim’s house around 4:45 a.m. on February 4, 2000. Kenneth Jackson also testified that he passed a man who was wearing brown coveralls and walking the same area at approximately 5:10 a.m. that day.

Chandra Tannehill, the victim’s daughter, testified that, after an uncle telephoned her to tell her about the fire at her mother’s house, she and her aunt immediately drove to the victim’s house. On the way, they saw Bell, who lived with his grandmother next door to her aunt, walking away from the area of her mother’s house. Bell was wearing brown coveralls. Tannehill later told law enforcement officers that she had seen Bell walking away from the area of her mother’s residence.

Deputy Dennis Ferguson of the Jefferson County Sheriffs Department testified that, while he was on his way to the victim’s house, he passed a man who he later determined to be Bell wearing brown coveralls and walking away from the area. Later, he and Deputy Fred Berry took Bell into custody. At that time, Bell gave them a false name. He also had a plastic bag of nickels, dimes, and quarters in his possession. Ferguson testified that they released Bell after a short time because they did not know that anyone had died in the fire and thought they were simply dealing with a house fire.

Deputy Fred Berry of the Jefferson County Sheriffs Department testified that he heard a “be on the lookout” alert for a black male wearing coveralls, that he assisted Ferguson in taking Bell into custody, and that Bell used a false identity. He also testified that Bell had a plastic bag containing approximately two handfuls of change, a lighter, two pieces of paper containing telephone numbers, and a pair of gloves in his possession. However, he did not have any cigarettes on his person. Berry observed that the plastic bag had been tied in a knot and that the coins in the plastic bag were nickels, dimes, and quarters.

Paul Price, a deputy coroner for Jefferson County, responded to the fire at the victim’s home on February 4, 2000. He testified that the body was located by what appeared to be a burned up space heater and that there was what appeared to have been a belt around the victim’s neck. He also noted that there appeared to be a lot of debris in the area around the victim’s body.

Kimberly Washington testified that her cousin, Santrice Farley, dated and later married Bell. At about 10:00 a.m. on February 4, 2000, Bell telephoned her and asked for Farley. When she told him Farley was not there, he told her that “something bad had happened” and that he might be going to jail. (R. 380.)

Santrice Farley testified that she was married to Bell in February 2000, but they were not living together. On February 4, 2000, he telephoned her at work. Sometime later, he asked her to take him to a service station to retrieve a handgun he had hidden behind the building. Upon their arrival, Bell retrieved a silver handgun that had duct tape wrapped around the handle.

Michael Haynes, a deputy state fire marshal, testified that he responded to the scene at the victim’s house; that it appeared that the fire had originated in the living room; that he believed the fire had been intentionally set; and that the investigation revealed some candles that were on or under a couch in the living room, which would have been unusual and could have been what started the fire. He also testified that there was a kerosene heater near the victim’s body in a den area that was adjacent to the living room, but he ruled it out as the cause of the fire, and that there was not any evidence that an accelerant was used. Finally, he stated that coins would not have burned up in the fire.

Dr. Gary T. Simmons, a forensic pathologist with the Jefferson County Coroner/Medical Examiner’s Office, examined the victim’s body. He testified that her body was badly burned, that there was a ligature around her neck, and that there was duct tape on her face. Simmons testified that he did not find any evidence of soot, smoke, or carbon monoxide in the victim’s body, which strongly indicated that she was dead when the fire started. Based on his examination, he concluded that she died of asphyxia and that she was dead at the time the fire started.

Finally, forensic testing revealed that the victim’s blood was on one of Bell’s tennis shoes.

Bell argues that the trial court erred in denying his motion for a judgment of acquittal at the close of the State’s case. Specifically, he contends that the State did not establish that he intentionally started a fire in the victim’s house and that the State did not establish that the murder occurred during the commission of second-degree arson because the evidence showed that the victim was dead before the fire started.

“The following are capital offenses:

“(9) Murder by the defendant during arson in the ... second degree committed by the defendant....”

§ 13A-5-40(a), Ala.Code 1975.

“A person commits the crime of arson in the second degree if he intentionally damages a building by starting or maintaining a fee or causing an explosion.”

§ 13A-7-42(a), Ala.Code 1975.

“In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state’s evidence establishes a prima facie case. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). The trial court’s denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So.2d 199 (Ala.Cr.App.1983); Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not consti-
tute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); Willis v. State.”

Breckenridge v. State, 628 So.2d 1012, 1018 (Ala.Crim.App.1993).

“‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So.2d 485, 489 (Ala.Cr.App.1984), affirmed, Ex parte Faircloth, [471] So.2d 493 (Ala.1985).
“ ‘ “The role of appellate courts is not to say what the facts are. Our role, ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978). An appellate court may interfere with the jury’s verdict only where it reaches “a clear conclusion that the finding and judgment are wrong.” Kelly v. State, 273 Ala. 240, 244, 139 So.2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). “[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense.” Fuller v. State, 269 Ala. 312, 333, 113 So.2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S.Ct. 380, 4 L.Ed.2d 358 (I960).’ Granger [v. State], 473 So.2d [1137,] 1139 [(Ala.Crim.App.1985)].
“... ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So.2d 1161, 1177 (Ala.Cr.App.1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So.2d 1179 (Ala.1985).”

White v. State, 546 So.2d 1014, 1017 (Ala.Crim.App.1989). Also,

“ ‘[circumstantial evidence is not inferior evidence, and it will be given the same weight as direct evidence, if it, along with the other evidence, is susceptible of a reasonable inference pointing unequivocally to the defendant’s guilt. Ward v. State, 557 So.2d 848 (Ala.Cr.App.1990). In reviewing a conviction based in whole or in part on circumstantial evidence, the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979).’
“Ward, 610 So.2d at 1191-92.”

Lockhart v. State, 715 So.2d 895, 899 (Ala.Crim.App.1997). Finally,

“ ‘[i]ntent, ... being a state or condition of the mind, is rarely, if ever, susceptible of direct or positive proof, and must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence.’ McCord v. State, 501 So.2d 520, 528-529 (Ala.Cr.App.1986), quoting Pumphrey v. State, 156 Ala. 103, 47 So. 156 (1908).”

French, v. State, 687 So.2d 202, 204 (Ala.Crim.App.1995), aff'd in part, rev’d in part on other grounds, 687 So.2d 205 (Ala.1996).

“ ‘The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury. McMurphy v. State, 455 So.2d 924 (Ala.Crim.App.1984); Craig v. State, 410 So.2d 449 (Ala.Crim.App.1981), cert. denied, 410 So.2d 449 (Ala.1982).’ Loper v. State, 469 So.2d 707, 710 (Ala.Cr.App.1985).”

Oryang v. State, 642 So.2d 989, 994 (Ala.Crim.App.1994).

In Jones v. State, 946 So.2d 903, 923-27 (Ala.Crim.App.2006), we addressed an argument similar to the appellant’s in the context of a conviction for the capital offense of robbery-murder as follows:

“The appellant further argues that the State did not present sufficient evidence to support his convictions for the capital offense of robbery-murder. Specifically, he contends that, ‘[although in this case one victim’s purse and automobile were taken and one victim’s wallet was taken, the evidence indicates those actions to have been an afterthought and not the intent of the murders.’ (Appellant’s brief at p. 10.)
“ ‘To sustain a conviction under § 13A-5-40(a)(2) for capital robbery-murder, the state must prove beyond a reasonable doubt: (1) a “robbery in the first degree or an attempt thereof,” as defined by § 13A-8-41; (2) a “murder,” as defined by § 13A-6-2(a)(1); and (3) that the murder was committed “during” the robbery or attempted robbery, i.e., that the murder was committed “in the course of or in connection with the commission of, or in immediate flight from the commission of’ the robbery or attempted robbery in the first degree, § 13A-5-39(2). Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), aff'd, 500 So.2d 68 (Ala.1986). The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing. Davis v. State, 536 So.2d 110 (Ala.Cr.App.1987); Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), aff'd, Ex parte Magwood, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). The intentional murder must occur during the course of the robbery in question; however, the taking of the property of the victim need not occur prior to the killing. Clark v. State, 451 So.2d 368 (Ala.Cr.App.), cert. denied, 451 So.2d 368 (Ala.1984). While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs. Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983), aff'd, 460 So.2d 216 (Ala.1984).
“ ‘ “As the Alabama Supreme Court held in Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), ‘the fact that the victim was dead at the time the property was taken would not militate [against a finding] of robbery if the intervening time between the murder and the taking formed a continuous chain of events.’ Clements v. State, 370 So.2d 708, 713 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979); Clark v. State, 451 So.2d 368, 372 (Ala.Cr.App.1984). To sustain any other position ‘would be tantamount to granting to would-be robbers a license to Mil their victims prior to robbing them in the hope of avoiding prosecution under the capital felony statute.’ Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App.1983), affirmed, 460 So.2d 216 (Ala.1984).
“ ‘ “Although a robbery committed as a ‘mere afterthought’ and unrelated to the murder will not sustain a conviction under § 13A-5-40(a)(2) for the capital offense of murder-robbery, see Bufford v. State, supra, O’Pry v. State, supra [642 S.W.2d 748 (Tex.Cr.App.1981)], the question of a defendant’s intent at the time of the commission of the crime is usually an issue for the jury to resolve. Crowe v. State, 435 So.2d 1371, 1379 (Ala.Cr.App.1983). The jury may infer from the facts and circumstances that the robbery began when the accused attacked the victim and the capital offense was consummated when the defendant took the victim’s property and fled. Cobern v. State, 273 Ala. 547, 550, 142 So.2d 869, 871 (1962). The defendant’s intent to rob the victim can be inferred where ‘[t]he intervening time, if any, between the killing and robbery was part of a continuous chain of events.’ Thomas v. State, 460 So.2d 207, 212 (Ala.Cr.App. 1983), affirmed, 460 So.2d 216 (Ala.1984). See also Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Crowe v. State, 435 So.2d 1371 (Ala.Cr.App.1983); Bufford v. State, 382 So.2d 1162 (Ala.Cr.App.), cert. denied, 382 So.2d 1175 (Ala.1980); Clements v. State 370 So.2d 708 (Ala.Cr.App.1978), affirmed in pertinent part, 370 So.2d 723 (Ala.1979).”
‘Connolly, 500 So.2d at 63.’
“Hallford v. State, 548 So.2d 526, 534-35 (Ala.Crim.App.1988), aff'd, 548 So.2d 547 (Ala.1989).
“ ‘It is sometimes said that a robbery committed as a “mere afterthought” and unrelated to the murder will not sustain a conviction for the capital offense of murder-robbery. Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), aff'd, 500 So.2d 68 (Ala.1986). However, the appellant’s intent to rob the victim may lawfully and correctly be inferred where the killing and the robbery were part of a continuous chain of events. Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989).’
“Harris v. State, 671 So.2d 125, 126 (Ala.Crim.App.1995).
“In this case, the State presented evidence that the appellant wanted to go to Muscle Shoals, that the victims repeatedly refused to allow him to use a vehicle to drive there, and that the victims had threatened to report him to Florida law enforcement authorities. It also presented evidence that, after he killed the victims, the appellant took Nancy’s purse and vehicle and Tim’s wallet, used one of Nancy’s credit cards to buy gas, used cash he found to buy crack, and drove to Muscle Shoals. Although the appellant stated that he intended only to kill 'the victims to stop their suffering and contends that the robbery was a mere afterthought, his intent was a question for the jury to resolve. In this case, the jury could have reasonably concluded from the facts and circumstances that the robberies began when the appellant attacked the victims; that the capital offenses were consummated when the appellant took the victims’ property and fled; that the killings and robberies were part of a continuous chain of events; and that the robberies were intentional and were not a mere afterthought. Therefore, the appellant’s argument is without merit.”

See also Connell v. State, 7 So.3d 1068, 1089-90 (Ala.Crim.App.2008).

Also, in Lewis v. State, 889 So.2d 623, 678-86 (Ala.Crim.App.2003), we addressed a similar situation in the context of a conviction for the capital offense of rape-murder as follows:

“Lewis contends that the trial court erred in not instructing the jury on the offense of abuse of a corpse as a lesser-included offense of capital murder during a rape. (Issue VIII in Lewis’s brief.) Citing Padgett v. State, 668 So.2d 78 (Ala.Crim.App.), cert. denied, 668 So.2d 88 (Ala.1995), Lewis argues that he was entitled to an instruction on abuse of a corpse because, he says, ‘[t]he evidence is unclear whether Misty McGugin was dying or was already dead at the time of the sexual act.’ (Lewis’s brief at p. 59.)
“Initially we point out that, as the Alabama Supreme Court recognized when it denied certiorari review, what this Court stated in Padgett regarding instructing the jury on abuse of a corpse was entirely dicta. See Ex parte Padgett, 668 So.2d 88, 89 (Ala.1995) (Tn denying the petition, this Court does not address dicta in the Court of Criminal Appeals opinion suggesting that, under the circumstances of this case, it would be proper to instruct the jury regarding the offense of “abuse of corpse,” § 13A-11-13, Ala.Code 1975, as a lesser included offense of murder committed during the course of a rape.’). Moreover, contrary to Lewis’s contention, Padgett does not stand for the proposition that a defendant is automatically entitled to an instruction on abuse of a corpse as a lesser-included offense of capital murder during a rape whenever the evidence is ‘unclear’ whether the victim was alive or dead at the time of the sexual act. Rather, Padgett merely recognizes that ‘[i]f the intent to have sexual intercourse arose after the victim’s death, the crime committed would be abuse of a corpse,’ not capital murder during a rape. 668 So.2d at 85. However, that proposition, alone, is not determinative of the issue before us.
“The trial court in this case was correct — the proper inquiry is not whether the sexual act occurred after the victim was dead, but whether the murder and the rape formed a continuous chain of events, i.e., whether the intent to commit the rape was formed before or during the murder. As this Court recognized in Padgett, ‘[a]n accused is not guilty of a capital offense where the intent to commit the accompanying felony, in this case rape, was formed only after the victim was killed,’ and ‘[a]n accompanying felony committed as a “mere afterthought” and unrelated to the murder will not sustain a conviction of capital murder.’ Padgett, 668 So.2d at 83. However, ‘ “if an accused had the intent to commit the underlying offense at the time he murdered and the offense is committed immediately after the murder, he is guilty of murder while committing the underlying offense, and the capital murder statute still applies.” ’ Williams v. State, 795 So.2d 753, 773 (Ala.Crim.App.1999), aff'd, 795 So.2d 785 (Ala.), cert. denied, 534 U.S. 900 (2001), quoting Thompson v. State, 615 So.2d 129, 133 (Ala.Crim.App.1992), cert. denied, 510 U.S. 976 (1993). We adhere to the view enunciated in Padgett that ‘[i]f the intent to have sexual intercourse arose after the victim was already dead, there could be no forcible compulsion of the victim to engage in sexual intercourse, thus, although the appellant’s act was offensive and repugnant, it could not be rape.’ Padgett, 668 So.2d at 84.
“However, as the Alabama Supreme Court stated in Ex parte Roberts, 735 So.2d 1270 (Ala.), cert. denied, 5[2]8 U.S. 939 (1999), regarding a similar issue relating to capital murder during a robbery:
“ ‘This Court held in Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), that the fact that the victim was dead at the time the property was taken would not absolve a defendant of a charge of robbery if the intervening time between the murder and the taking of the property was such as to permit the jury to find that the murder and the taking were links in a continuous chain of events. See Thomas v. State, 460 So.2d 207 (Ala.Crim.App.1983), aff'd, 460 So.2d 216 (Ala.1984). To hold any other way “would be tantamount to granting to would-be robbers a license to kill their victims prior to [taking their property,] in the hope of avoiding prosecution under the capital felony statute. 460 So.2d at 212.’
735 So.2d at 1276-77. Moreover, in Hutcherson v. State, 677 So.2d 1174 (Ala.Crim.App.1994), rev’d on other grounds, 677 So.2d 1205 (Ala.1996), on remand, 677 So.2d 1210 (Ala.Crim.App.1996), appeal after remand, 727 So.2d 846 (Ala.Crim.App.1997), aff'd, 727 So.2d 861 (Ala.1998), cert. denied, 527 U.S. 1024 (1999), this Court stated:
“ ‘The appellant next argues that there was insufficient evidence to show that he committed the murder during the course of committing a sodomy. Specifically, he argues that there was evidence that the victim was dead at the time she was sodomized and that there was no evidence that the appellant formed the intent to sodomize the victim before the victim was killed.
“ ‘Dr. Leroy Riddick, a forensic pathologist, testified that semen was found in the victim’s rectum but that there was no evidence of trauma to the rectum. He testified that this could be either because of her age and the loss of elasticity in the area or because she was sodomized after her death.
“ ‘The appellant argues that on the basis of Dr. Riddick’s testimony he could not be found guilty of sodomizing the victim and therefore could not be found guilty of the capital offense of murder committed during the course of sodomy under § 13A-5-40(a)(3), Code of Alabama 1975. We hold that the legislature did not intend such a result when it enacted § 13A-5-40(a)(3).
“ ‘Section 13A-5-40(a)(3) defines a capital murder as “murder by the defendant during a rape in the first or second degree or an attempt thereof committed by the defendant; or murder by the defendant during sodomy in the first or second degree or an attempt thereof committed by the defendant.” (Emphasis added.) “During” is defined in § 13A-5-39(2) as “in the course of or in connection with the commission of, or in immediate flight from the commission of the underlying felony or attempt thereof.”
“‘This court in Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988), aff'd, 548 So.2d 547 (Ala.1989), cert. denied, 493 U.S. 945, 110 S.Ct. 354, 107 L.Ed.2d 342 (1989), had occasion to determine whether a robbery that occurred after a murder could support a conviction for capital murder. Judge Patterson, writing for the court, stated:
“ ‘ “The capital crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob and culminating in the act of intentionally killing the victim; the offense consists of two elements, robbing and intentional killing. ... The intentional murder must occur during the course of a robbery in question; however, the taking of the property of the victim need not occur prior to the killing. ... While the violence or intimidation must precede or be concomitant with the taking, it is immaterial that the victim is dead when the theft occurs.”
“ ‘548 So.2d at 534 (citations omitted).
“ ‘The reasoning of Iiallford applies to this case. It makes no difference if the actual act of sodomy occmred after the victim’s death.
“ ‘We agree with the Minnesota Supreme Court:
“‘“One who ‘[clauses the death of a human being while committing or attempting to commit criminal sexual conduct in the first or second degree with force or violence, either upon or affecting the person or another,’ is guilty of murder in the first degree. Minn.Stat. § 609.185(2) (1990). In Minnesota the felony-murder rule applies whenever the felony and the homicide ‘are part of one continuous transaction.’ Bellcourt v. State, 390 N.W.2d 269, 274 (Minn.1986) [quoting Kochevar v. State, 281 N.W.2d 680, 686-87 n. 4 (Minn.1979)]. Thus, the felony-murder rule applies even though the underlying felony is completed after the homicide, provided the felony and homicide are parts of a single ‘continuous transaction.’ Compare State v. LaTourelle, 343 N.W.2d 277 (Minn. 1984) (defendant convicted of first degree felony-murder where defendant intended to rape victim prior to the homicide but the rape took place after the homicide) with State v. Givens, 332 N.W.2d 187 (Minn.1983) (defendant acquitted of first degree felony-murder where defendant pai'ticipated in murder of victim, then returned to murder scene a short time later to rape victim).
‘“State v. Nielsen, 467 N.W.2d 615, 618 (Minn.1991).’
“677 So.2d at 1194-95 (some emphasis in original; some emphasis added).
“Contrary to Lewis’s contention, he was not entitled to an instruction on the offense of abuse of a corpse as a lesser-included offense of capital murder during a rape merely because the evidence as to whether Misty McGugin was alive or dead at the time of the sexual act was inconclusive.
“Although we agree that abuse of a corpse may be a lesser-included offense of capital murder during a rape in certain circumstances — i.e., where the intent to rape was formed only after the murder and the rape was an afterthought unrelated to the murder — those circumstances are not present in this case. Lewis did not argue at trial, and he does not argue on appeal, that the rape was a mere afterthought to the murder, i.e., that he did not form the intent to commit the rape until after McGugin was already dead, and there is no reasonable theory from which the jury could have concluded from the evidence that Lewis did not form the intent to rape until after McGugin was dead. The evidence is clear that the kidnapping, robbery, rape, and murder of Misty McGugin were part of one continuous transaction that began when Lewis first grabbed McGugin and began strangling her in room 18 of Woody’s Motel and culminated in Lewis’s having sexual intercourse with McGugin in the woods and leaving her there. Therefore, we find no error on the part of the trial court in not instructing the jury on the offense of abuse of a corpse as a lesser-included offense of capital murder during a rape.”

Based on the reasoning in Jones with respect to robbery-murder and Lewis with respect to rape-murder, we likewise conclude that, to establish the capital offense of arson-murder, it is not necessary that the State establish that the arson occurred before the murder as long as it is clear that the murder and the arson were part of a continuous chain of events. See Roberts v. State, 735 So.2d 1244, 1264 (Ala.Crim.App.1997) (holding that “[t]he jury could easily have found beyond a reasonable doubt that the arson and the murder were part of a continuous chain of events, and that the arson was not a mere afterthought”), aff'd, Ex parte Roberts, 735 So.2d 1270, 1278 (Ala.1999) (holding that, “[wjhere two offenses are inextricably interwoven, they are said to be part of the res gestae.... The jury could have found that the murder and the arson were part of a continuous chain of events and that Roberts committed the murder ‘in the course of or in connection with the commission of, or in immediate flight from the commission of,’ arson.”). See also Way v. State, 496 So.2d 126, 128 (Fla.1986) (“We agree with the state that the other committed felony, arson, need not be the cause of death to support this aggravating circumstance. Rather, it is sufficient that the capital murder occur during the same criminal episode as the enumerated felony, which was certainly the case in this instance.”); People v. Thomas, 137 Ill.2d 500, 534, 561 N.E.2d 57, 71, 148 Ill.Dec. 751, 765 (1990) (“So too, here, defendant committed both murder and arson, and aggravated arson and burglary, and these crimes occurred ‘essentially simultaneously.’ It is not imperative that the State prove beyond a reasonable doubt that defendant formed the criminal intent to commit arson or aggravated arson before committing murder. It is sufficient that the State proved the elements of the crimes and the accompanying felonies were part of the same criminal episode.”). But see State v. Hacheney, 160 Wash.2d 503, 518, 158 P.3d 1152, 1160 (2007) (“The legislature adopted the ‘in the course of language after this court ... defined ‘in the course of as requiring a causal connection such that the death was a probable consequence of the felony. ... Moreover, for a killing to have occurred ‘in the course of arson, logic dictates that the arson must have begun before the killing.”).

In this case, Bell argues that the State did not establish a prima facie case of the capital offense of arson-murder because it did not show that he intentionally started a fire in the victim’s home and did not establish that the murder occurred during the commission of second-degree arson because the evidence showed that the victim was dead before the fire started. Although he essentially argues that the arson was a mere afterthought, intent was a question for the jury to resolve. Based on the evidence presented, the jury could have reasonably concluded from the facts and circumstances that the arson began when Bell entered the victim’s home and strangled the victim; that Bell intentionally started a fire in the victim’s house using the candles in the living room; that the capital offense was consummated when Bell fled; that the killing and arson were part of a continuous chain of events; and that the arson was intentional and was not a mere afterthought. Therefore, Bell’s arguments regarding the sufficiency of the evidence are without merit, and the trial court properly denied his motion for a judgment of acquittal at the close of the State’s evidence. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

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


author: HAWKES, C.J.

text:
    Selvin DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1483.
    District Court of Appeal of Florida, First District.
    Feb. 9, 2009.
    Rehearing Denied April 1, 2010.
    Selvin Daniels, pro se, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, C.J.

Appellant seeks review of a final order denying his amended postconviction motion under Florida Rule of Criminal Procedure 3.850, following an evidentiary hearing. On appeal, Appellant contests six of the eight grounds raised in his motion. We find merit in Appellant’s argument that he was improperly sentenced to life imprisonment as both a prison releasee reoffender and a habitual felony offender. We affirm the denial of his other claims without comment.

Following his trial, Appellant was convicted of armed robbery with a deadly weapon and burglary of a dwelling while ai-med. For each conviction, the court sentenced Appellant to a concurrent term of life imprisonment under both the prison releasee reoffender statute and the habitual felony offender statute. In his 3.850 motion, Appellant argued his sentence was illegal because the law does not allow a trial court to impose equal sentences under both statutes.

Appellant is correct. The prison releas-ee reoffender statute authorizes a court to deviate from its statutory scheme only to impose “a greater sentence of incarceration” under the habitual felony offender statute. § 775.082(9)(c), Fla. Stat. (1999) (emphasis added). “[B]ecause a life term under the habitual felony offender statute is not greater than a life term under the prison releasee reoffender statute, the trial court was without authority to [impose this sentence] under the habitual felony offender statute.” Walls v. State, 765 So.2d 733, 734 (Fla. 1st DCA 2000); see also Grant v. State, 770 So.2d 655, 659 (Fla.2000) (finding a court is without authority to sentence a defendant to equal, concurrent terms under the prison releasee reoffender statute and the habitual felony offender statute); Morris v. State, 910 So.2d 306, 307 (Fla. 1st DCA 2005) (holding that “[ijmpos-ing sentences of equal length under both of these two statutes was error”); Lewis v. State, 819 So.2d 1009, 1010 (Fla. 1st DCA 2002) (finding a defendant’s sentence to life imprisonment as a prison releasee reoffender and a habitual felony offender was not “authorized by law”).

Therefore, Appellant’s sentence must be reversed and remanded to strike his designation as a habitual felony offender. See Lewis, 819 So.2d at 1010. Because this is a purely ministerial act, Appellant’s presence is not required at resentencing. In all other respects, Appellant’s judgment and sentence are affirmed.

AFFIRMED in part; REVERSED in part and REMANDED with instructions consistent with this opinion.

WOLF and KAHN, JJ„ concur.

      . Although this argument concerned the legality of Appellant’s sentence, it could be raised under either Florida Rule of Criminal Procedure 3.800(a) or 3.850. See Yates v. State, 556 So.2d 501, 502 (Fla. 1st DCA 1990).


author: FARMER, J. PER CURIAM. WARNER, J.,

text:
    Angela SULLIVAN, Appellant, v. Richard SULLIVAN, Appellee.
    No. 4D08-1087.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Order Denying Rehearing March 17, 2010.
    Kristen A. Floyd and Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellant.
    Ralph T. White of Schütz & White, L.L.P., West Palm Beach, for appellee.
   FARMER, J.

In this dissolution of marriage action, where the marital assets exceed $26 million, we affirm on all issues except as to the amount of an equalization payment prescribed in the final judgment.

While the action was pending, each party received advances against equitable distribution: he, $1,705,504; she, $1,603,610. The parties agree that there is an error in factoring the advances into the final distribution because the total marital assets were fully accounted for in the distribution — that she should not also have been given a credit for the difference in the amounts of the advances. They disagree as to the solution. He argues that the credit should simply be eliminated. She argues that the advances should be taken out of the calculation.

Because the advances were in all events part of the marital estate, the court correctly accounted for them in the equalization process. We agree with him that the credit of $101,894 should be eliminated. On remand, the court shall reduce the equalization payment from $1,450,006 to $1,348,112.

In all other respects, the final judgment is affirmed.

WARNER and LEVINE, JJ., concur.

PER CURIAM.

The motion for rehearing is denied.

FARMER and LEVINE, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting with opinion.

On motion for rehearing, the husband points out an issue which we did not address, namely the trial court’s award of prejudgment interest on the equalizing payment made to effect equitable distribution in this case. I agree not only that we should address the award of prejudgment interest, but also that we should reverse on this issue.

The valuation date of the marital assets was disputed at the final hearing. The wife sought to have the assets valued as of the date of filing of the petition, and the husband sought to value them at the date of final judgment. The court determined that the assets should be valued as of the date of the final judgment and adopted, with some changes, the schedule presented by the husband as to the value of the assets. Based upon those values and how the assets were distributed, the husband owed the wife a substantial equalizing payment as of the date of the final judgment. The court awarded prejudgment interest on the equalizing payment, commencing on the date of the filing of the petition, citing Catalfumo v. Catalfumo, 704 So.2d 1095 (Fla. 4th DCA 1997).

In Catalfumo we held that where a trial court selects the date of the petition for dissolution, rather than the trial date, as the valuation date for marital assets, the court abuses its discretion in failing to award prejudgment interest from the date of filing of the petition, where the husband had use and benefit of the wife’s share of the assets during the divorce proceedings. We agreed with Morris v. Morris, 724 P.2d 527 (Alaska 1986), that an award of prejudgment interest in a divorce proceeding “is not to penalize the losing pai'ty, but rather to compensate the successful claimant for losing the use of the money between the date he or she was entitled to it and the date of judgment. A corollary purpose is to prevent the judgment debtor from being unjustly enriched by the use of that money.” Id. at 529. See also Mathers v. Brown, 21 So.3d 834 (Fla. 4th DCA 2009).

Moms, however, also involved a dissolution where the court valued the assets as of the date of the filing. In fact, noting that in divorce cases a trial judge has discretion in choosing a reasonable date to value marital property, the Moms court explained that “[t]he court also should have discretion to award prejudgment interest from that date, if one partner in the marriage had use of money or other property for a period when the other partner was actually entitled to it.” Morris, 724 P.2d at 530 (emphasis supplied). In so finding, the court noted that it was applying the same prejudgment interest principles from other types of proceedings. Id.

Here, the court valued the assets as of the final judgment date. The trial evidence also showed that the parties had use of the marital assets. During the proceedings on this very substantial marital estate, the husband actually distributed millions of dollars to the wife as part of her share of the equitable distribution. She had use of other assets of the estate. Although the wife complained of dissipation of the marital estate by the husband, the trial court found only $38,000 of dissipation and credited $19,000 “in the wife’s column.” That amount was insignificant considering the substantial size of the marital estate.

Based upon the principles of Moms that we adopted in Catalfumo, the trial court abused its discretion in providing prejudgment interest on the equalizing payment from the date of the filing of the petition, where the court valued and distributed the marital assets as of the date of the final judgment. I would grant the rehearing on this issue and reverse and remand to eliminate that portion of the final judgment,


author: KAHN, J.

text:
    Charles James GRAPSKI and Michael Canney, Appellants, v. CITY OF ALACHUA, Appellee.
    No. 1D09-509.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.
    Rehearing Denied April 1, 2010.

      Joseph W. Little, Gainesville, for Appellants.
    Marian B. Rush of Rush & Glassman, Gainesville; Beth M. Coleman of Beth M. Coleman, P.A., St. Petersburg; and Rodney W. Smith of Avera & Smith, LLP, Gainesville, for Appellee.
   KAHN, J.

Charles Grapski and Michael Canney appeal a final judgment (on Count One) and a summary final judgment (on Count Two) entered in favor of appellee, City of Alachua (the City), on appellants’ amended complaint for declaratory and injunctive relief alleging violations of chapters 119 and 286, Florida Statutes (2006), and the Florida Constitution. To the extent the trial court concluded the issues of 1) the City’s failure to allow appellants to inspect and copy the Board of Canvassers’ (Board) April 11, 2006, Minutes (the Minutes) in a timely manner and 2) entitlement to attorney’s fees and costs was mooted because appellants belatedly received the Minutes, we reverse the final judgment and summary final judgment and remand for the trial court to award reasonable attorney’s fees and costs. We further hold void the action taken by the City in approving the, as of then, undisclosed Minutes. We affirm the trial court’s rulings in all other respects relating to the City Commission’s (the Commission) actions.

FACTUAL AND PROCEDURAL BACKGROUND

The City conducted a Commission election on April 11, 2006. After the polls closed, the Board met to canvass the election, and a city employee prepared Minutes of that proceeding. Appellants attended the meeting and observed what they perceived to be improprieties. The City then promulgated a Regular City Commission Meeting Agenda (the Agenda) for the May 15 Commission meeting. The “Consent Agenda” part of the Agenda included “Minutes: April 11, 2006 Board of Canvassers Meeting.” Three days before the May 15 meeting, appellants went to City Hall to obtain a copy of the Minutes. They found out, however, the Minutes were not among the documents available to the public. Neither were the Minutes available on the City’s site or at the county public library before the meeting. Appellants then made an oral public records request through Deputy Clerk Alan Henderson to inspect and copy the Minutes. Henderson denied their request, telling them the Minutes would be made available to the public after the Commission approved them at its May 15 meeting. Another request for the Minutes on the morning of May 15 also failed. Thus, under the City’s apparent policy, appellants could not determine the contents of the Minutes until after the Commission meeting, during which the Minutes would be taken up on the consent agenda. Appellants subsequently asked to inspect and copy many other purported public records relating to the April 11 Commission election.

In the present action, appellants have raised issues under Florida public records and open meeting laws. Count One, the public records claim, alleges violations of section 119.07, Florida Statutes (2006), and article I, section 24(a) of the Florida Constitution, based on the City’s refusal to allow appellants to inspect and copy the Minutes before the May 15 meeting. Appellants claimed the Minutes are a “public record” for purposes of chapter 119. This count alleged other violations of public records law relating to the City’s subsequent refusal to permit inspection and copying of additional documents. Appellants sought judgment against the City in the nature of an order declaring a violation of constitutional and statutory rights, enjoining the City either to grant requests for public records or to provide written reasons for its denials, and granting attorney’s fees and costs.

In its answer, the City neither admitted nor denied appellants’ assertion the Minutes are a public record. Subsequently, at a motion hearing, the City’s counsel answered “no” when the trial judge asked her whether the City’s position was that the Minutes are not a public record. Conceding the City had not provided appellants with a copy of the Minutes when requested, the City nevertheless argued mootness, relying on the by-then undisputed fact appellants had received a copy of the Minutes many months later, but before bringing this lawsuit. How appellants obtained a copy of the Minutes is unclear in the record.

After a bench trial on Count One, the court asked appellants to provide a list of the public records requested, but alleged to have been unlawfully denied them by the City or its employees. Ultimately, the trial court determined appellants had essentially abandoned their claims except for the City’s refusal to allow them to inspect and copy the Minutes. To the extent appellants belatedly listed other records allegedly requested, but not received, the trial court concluded that any documents not introduced at the trial would not be considered in resolving Count One. The court cited certain evidence in the record that voluminous other public records were requested and were provided to appellants. Still other records were destroyed in a fire at City Hall, which thwarted the City’s attempts to review some of its computerized records.

Finding the initial complaint was filed nearly nine months after appellants initially requested the Minutes, and that appellants had the Minutes by then, the trial court concluded that public records law, chapter 119, Florida Statutes, cannot be used to compel production of a document already provided to the requesting party before filing the lawsuit. In other words, the court determined the public records claim was moot by the time appellants filed the initial complaint. The court denied any relief to appellants on this claim.

Count Two, the open meeting claim, alleged violations of section 286.011, Florida Statutes (2006), known as the “Government in the Sunshine Law” or “open meetings” law; and article I, section 24(b) of the Florida Constitution. Contemporaneously with the final judgment, the trial court issued a summary final judgment in favor of the City on Count Two. The parties agreed no material factual issues are in dispute in the open meeting claim. The trial court determined the City’s use of the consent agenda procedure did not violate chapter 286, Florida Statutes, and denied appellants’ claim under section 286.011 seeking an order “rendering the City’s approval of the Minutes null and void and of no legal effect.”

ANALYSIS

We have de novo review of a question of law. Whether the trial court correctly interpreted and applied the relevant statutes is such a question. See Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002); Rogers v. Hood, 906 So.2d 1220, 1223 (Fla. 1st DCA 2005) (stating that the issue of what constitutes a public record is a question of law). On their claim under chapter 119, appellants had to prove they made a specific request for public records, the City received it, the requested public records exist, and the City improperly refused to produce them in a timely manner. See Hillier v. City of Plantation, 935 So.2d 105, 106 (Fla. 4th DCA 2006). Here the Minutes were created immediately following the April 11, 2006, meeting. Appellants made specific requests for the Minutes before the May 15 meeting, and the City’s employee represented the Minutes would not be released to the public until after approval by the Commission. Appellants maintained that although they belatedly had received a copy of the Minutes, the violation of Florida public records law reached fruition at the City’s unlawful refusal to timely produce a copy of the Minutes, and certainly by the time the primary usefulness of the Minutes passed. Although appellants knew when the Commission would meet and knew the Minutes would be submitted for approval then, they had no opportunity to examine the Minutes until after their approval. This unjustifiable delay and closed procedure, say appellants, is tantamount to denying their request for the Minutes altogether and constitutes an unlawful refusal to comply with chapter 119. See Barfield v. Town of Eatonville, 675 So.2d 223, 224 (Fla. 5th DCA 1996) (stating that “[a]n unjustified delay in complying with a public records request amounts to an unlawful refusal”).

Unquestionably, the City’s Minutes are a “public record.” That term in Florida law broadly includes any document, paper, or other material “made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” § 119.011(11), Fla. Stat. (2006); see Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633, 640 (Fla.1980) (concluding that intra-office or inter-office memos communicating information from one public employee to another, or prepared for filing although not part of the agency’s later formal public product, constituted “public records” under section 119.011 because they supplied the final evidence of knowledge obtained in connection with the transaction of public business); Op. Att’y Gen. Fla. 91-26 (1991) (concluding that the minutes of a city council meeting are public records once the clerk has performed the duty to prepare them). The Board, a subdivision of the City, is an “agency.” § 119.011(2), Fla. Stat. (2006) (defining “agency” to include any municipal board). The City does not assert otherwise. The Minutes were prepared in the course of the official business of the Board’s canvassing the municipal election. Although not yet considered by the Commission, the Minutes are the final work product of the Board, not a preliminary draft or note. See Shevin, 379 So.2d at 640 (distinguishing a “public record,” which is “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type,” from “drafts or notes, which constitute mere precursors of governmental ‘records’ ” and are not “intended as final evidence of the knowledge to be recorded”).

The Florida Legislature has spoken clearly that, subject to certain exemptions not at issue here,

it is the policy of this state that all state, county, and municipal records are open for public inspection and copying by any person. Providing access to public records is a duty of each agency.

§ 119.01(1), Fla. Stat. (2006). The statutory provision addressing “inspection and copying of records” states:

Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.

§ 119.07(l)(a), Fla. Stat. (2006). Our state’s organic law mandates this right to inspect and copy public records:

Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes ... counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.

Art. I, § 24(a) Fla. Const. “This section shall be self-executing.” Art. I, § 24(c) Fla. Const.

Accordingly, the Minutes must be available for public inspection and copying by any person; the City has the duty to provide access to such public records; and every custodian of a public record must permit inspection and copying in a timely manner, under reasonable conditions, and subject to supervision. Although the Minutes had been prepared at the canvassing meeting on April 11, the City flatly refused to produce the Minutes after receiving one or more proper requests. The City repeatedly informed appellants the Minutes would not be made available to the public until after the May 15 meeting. This unjustified refusal denied any realistic access for the only purpose appellants sought to achieve — review of the Minutes before the Commission meeting.

At oral argument, able counsel for the City candidly observed the City had erred in refusing to produce the Minutes before they were approved. Production days or weeks later, though, did not cure the error. Under the present facts, the City’s denial not only breached the duty to provide such records at a reasonable time and under reasonable conditions, but also contravened the purpose and mandate of our public records law. Accordingly, appellants’ receipt of a copy of the Minutes— months after their requests and clearly after their primary need passed — did not moot the issue of the City’s unlawful refusal to fulfill its duty to allow reasonable inspection and copying. See United Faculty of Fla. v. Pub. Employees Relations Comm’n, 898 So.2d 96, 100 & n. 4 (Fla. 1st DCA 2005) (concluding that the subsequent certification of public employee unions as exclusive bargaining agents of state university employees did not moot cases alleging unfair labor charges filed by unions, for an unfair labor practice occurred when a practice prohibited by law occurred, such that subsequent actions could affect the remedy but did not expunge the unfair labor practice). The trial court erred as a matter of law in holding otherwise.

Looking to well-established law, we note the doctrine of mootness does not apply to situations where an ongoing procedure violates the law or the violation is capable of repetition but evades proper review. See Sims v. State, 998 So.2d 494, 503-04 n. 8 (Fla.2008); Holly v. Auld; 450 So.2d 217, 218 n. 1 (Fla.1984). Moreover, because the damage occurred when the City refused to produce the Minutes, production after the fact did nothing to mollify appellants’ injury, the deprivation of constitutional and statutory rights. See Daniels v. Bryson, 548 So.2d 679, 680 (Fla. 3d DCA 1989) (“The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request.”). A holding otherwise would allow a covered body to delay meaningful access to public records, only to disclose them belatedly and after the utility of such records had faded. In that instance, an assertion of mootness because the violation had been “cured” once the requesting party gained access to the records would disguise a breach of public records law. The express language in the statutes and Florida Constitution demonstrates the City failed to comply with public records law, and the damage to appellants was not mooted.

We next consider the open meeting claim. As a hallmark of open meeting law, a covered governmental entity must provide reasonable notice of, and continuing public access to, its “meetings ... at which official acts are to be taken.” § 286.011(1), Fla. Stat. (2006); see Hough v. Stembridge, 278 So.2d 288, 291 (Fla. 3d DCA 1973) (stating that reasonable notice is necessary for a public meeting to be truly public under section 286.011). This public policy is memorialized in article I, section 24(b) of the Florida Constitution, which states in pertinent part that “[a]ll meetings ... of any collegial public body of a county [or] municipality ... at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public” except where exempted by chapter 286 or specifically closed pursuant to the state constitution. “Statutes enacted for the public benefit should be interpreted most favorably to the public.” Bd. of Pub. Instruction of Broward County v. Doran, 224 So.2d 693, 699 (Fla. 1969); see Wood v. Marston, 442 So.2d 934, 938 (Fla.1983) (broadly construing the Sunshine Law to effect its “remedial and protective purpose” to promote the public interest and to avoid “ ‘closed door’ politics”).

Supporting their argument that the open meeting law requires advance notice and a reasonable opportunity to attend, appellants rely on Rhea v. School Board of Alachua County, 636 So.2d 1383 (Fla. 1st DCA 1994). In Rhea, the Alachua County School Board (ACSB) announced its intent to conduct a workshop for board members in Orlando (another county) in December because members already would be in Orlando for a convention of the Florida School Boards Association. The ACSB advertised the Orlando meeting by placing a detailed notice in the Gainesville Sun newspaper approximately one week before the out-of-town meeting that it would be a workshop to which all persons were invited. The Orlando meeting occurred as scheduled and was open to the public. Rhea sued, alleging a violation of open meeting law, in that the ACSB met outside the geographical borders of its district, Alachua County, and more than 100 miles from its headquarters in Gainesville, and but for the long distance, Rhea would have attended the meeting. The trial court entered summary judgment in favor of the ACSB. See id. at 1384. On appeal, we recognized that the relevant “public” in question were members of the community in Alachua County, not Orange County: specifically, those who would be affected by the ACSB’s official actions. Whether the Orlando workshop was sufficiently “open to the public” depended on whether Alachua County residents were afforded a “reasonable opportunity” to attend the meeting. We concluded that the relevant public’s interest in having a reasonable opportunity to attend the ACSB’s workshop had to be weighed against the ACSB’s need to hold a workshop at a site well beyond the county line. See id. at 1385. Because the ACSB’s decision to meet in Orlando denied Alachua County citizens a reasonable opportunity to attend, and the reason for meeting in Orange County was only that members of the ACSB were already assembled at the same hotel for a different professional meeting, the balance favored the citizens of Alachua County. See id. at 1386.

Here the trial court concluded that so long as the City’s or Board’s meetings at which official acts are to be taken are properly noticed and open to the public at all times, chapter 286 does not preclude the use of the consent agenda procedure over a citizen’s objection. As the Florida Supreme Court observed in Wood, 442 So.2d at 941, the public has the right to attend open meetings, but “no authority to participate in or to interfere with the decision-making process.” The trial court also concluded chapter 286 does not require that specific items to be considered by a public body be listed in advance of the meeting on an agenda. That is, the City was not required to post an agenda for the meeting where the minutes of its canvassing board were to be approved. This conclusion followed the law. See Yarbrough v. Young, 462 So.2d 515, 517 (Fla. 1st DCA 1985); Hough, 278 So.2d at 290-91. “[Wjhile Florida courts have recognized that notice of public meetings is a mandatory requirement of the Government in the Sunshine Law, the preparation of an agenda that reflects every issue that may come before the governmental entity at a noticed meeting is not.” Op. Att’y Gen. Fla. 2003-53 (2003). If the meeting itself is properly noticed, chapter 286 does not require the governmental entity to “give notice of potential deviation from a previously announced agenda.” Law & Info. Servs., Inc. v. City of Riviera Beach, 670 So.2d 1014, 1016 (Fla. 4th DCA 1996). Given this body of law construing the Government in the Sunshine Law and appellants’ failure to disclose relevant authority to the contrary, we find no error in the trial court’s denying the challenge to the City’s use of the consent agenda.

Count Two, however, also sought relief based on the City’s failure to allow appellants a timely opportunity to inspect and copy the April 11 Minutes. Section 286.011(2), Florida Statutes (2006), states “[t]he minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection.” Moreover, our circuit courts should “enforce the purposes of this section upon application by any citizen of this state.” Id. The City held a meeting on May 15, 2006, to approve the Minutes. Up through that meeting, the City’s high-level employees informed appellants the City would not produce a copy of the Minutes until approval at the next meeting. As may be inferred from the foregoing “public records” analysis, the City violated both the language and the purpose of section 286.011(2) by denying public access to its Minutes until after approval, or, stated flatly, after the Minutes would have been useful to those seeking inspection. “Mere showing that the government in the sunshine law has been violated constitutes an irreparable public injury.” Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974). Further, “no resolution, rule, or formal action shall be considered binding except as taken or made” pursuant to the open meeting requirements. § 286.011(1), Fla. Stat. (2006). Apparently, even “an unintended violation of the government in the sunshine law will negate” action taken by a city commission. Gradison, 296 So.2d at 477-78.

Declaratory relief and injunctive relief will lie under chapter 286 if the facts warrant such remedies. Because, and to the extent, the City violated section 286.011(2), Florida Statutes (2006), by failing to open its Minutes to public inspection and copying in a timely and reasonable manner, prejudice is presumed. See Gradison, 296 So.2d at 477 (stating the “mere showing [chapter 286] has been violated constitutes an irreparable injury”); Port Everglades Auth. v. Int’l Longshoremen’s Ass’n, Local 1922-1, 652 So.2d 1169, 1171 (Fla. 4th DCA 1995) (stating that once a violation of section 286.011 is shown, “prejudice is presumed”). We therefore declare the City’s approval of those Minutes null and void ab initio. See Gradison, 296 So.2d at 477.

The City will perhaps consider this sanction extreme. We would only note the City could have cured its default by reconsidering the Minutes at any time after their pi'oduction. See Bassett v. Braddock, 262 So.2d 425, 428-29 (Fla.1972) (concluding that a subsequent open, public vote cured, corrected, and rendered “sunshine bright” an initial violation of section 286.011 relating to the election of school board officers by secret written ballot); Bruckner v. City of Dania Beach, 823 So.2d 167, 171 (Fla. 4th DCA 2002) (stating that a Sunshine Law violation “can be cured by independent final action completely in the Sunshine”). The City owns its decision to stand firm on the open meeting violation.

We AFFIRM in part and REVERSE in part the final judgment as to Count One, AFFIRM in part and REVERSE in part the summary final judgment as to Count Two, and REMAND for further proceedings on appellants’ motion for attorney’s fees and costs.

BENTON and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Joseph JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2434.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 2010.
    Rehearing Denied April 16, 2010.
    Joseph Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Gabriel KENON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2732.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2010.
    Rehearing Denied March 26, 2010.
    Gabriel Kenon, Punta Gorda, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287 (Fla.2003); Steele v. Kehoe, 747 So.2d 931 (Fla.1999); Kenon v. State, 968 So.2d 579 (Fla. 5th DCA 2007); Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006); Haynes v. State, 757 So.2d 517 (Fla. 4th DCA 2000).

GRIFFIN, PALMER and JACOBUS, JJ., concur.