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09/09/94 DWIGHT EDWARD MORRIS v. STATE

September 9, 1994

DWIGHT EDWARD MORRIS, ALIAS
v.
STATE



Appeal from Tuscaloosa Circuit Court. CC-92-625. Robert Harwood, TRIAL JUDGE.

Rehearing Denied January 13, 1995. Certiorari Denied April 21, 1995. Released for Publication August 28, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

The appellant, Dwight Edward Morris, was convicted of two counts of failing to redeliver a leased vehicle, a violation of Ala. Code 1975, § 32-15-6. He was sentenced to three years' imprisonment on each count, with the sentences to be served concurrently. He was also ordered to pay $2,638.60 in restitution and to pay $50 to the Crime Victim's Compensation Fund.

I.

FACTS

On September 28, 1991, The Southern Companies, Inc., *fn1 entered into a lease agreement with Creative Leasing, Inc., for the lease of a 1992 Ford Explorer vehicle. The lease agreement was executed by the appellant as president of The Southern Companies, Inc., and by Fred M. Palmer as president of Creative Leasing, Inc. The relevant sections of the lease agreement are as follows:

"1. Leased Vehicles, Rental Payment and Term.

". . . .

"The initial term and maximum extended term of this Agreement with respect to the vehicle shall be as specified in Lessee's Order and shall commence on the delivery date of such vehicle. Lessee agrees to give Lessor thirty (30) days notice if it intends to lease the vehicle beyond the initial term. . . ."

". . . .

"5. Delivery and Return of Vehicles. Delivery and return of the vehicle shall be at Lessor's place of business or as specified in Lessee's order. . . .

"Lessee agrees to return the vehicle at the end of the lease term, or any extension thereof, or upon earlier termination of the lease . . . .

". . . .

"10. Default. Time is of the essence of this Agreement and in the event that Lessee fails to pay in full on the date due any rental payment due hereunder, or defaults in the performance of any of the other terms, conditions and covenants contained herein, or in the event of Lessee's bankruptcy or insolvency, or if the leased vehicles be levied upon or encumbered in any way, or if at any time, in the exclusive judgment of Lessor, his rights in the leased vehicles in any way shall be prejudiced or rendered insecure, Lessor shall have the right to take immediate possession of the vehicles wherever found, with or without process of law, and to terminate the lease with the respect to such vehicles, and Lessee expressly authorizes Lessor and its agents to enter on any premises where the vehicles may be found for the purpose of repossessing such vehicles, and expressly waives any further interest in the vehicles and any right of action arising out of such entry and repossession. Lessor shall not be liable in damages for any termination pursuant to this paragraph. Lessee shall, however, upon termination pursuant to this paragraph be immediately responsible for the payment of all amounts due under the lease agreement through the date of termination . . . . "

". . . .

"12. General and Miscellaneous.. . .

". . . .

"Any notice given by one party to the other under this Agreement shall be given in writing at the address of the other party set out in Lessee's Order, or at such other address as may ...


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