author:
WOODALL, Justice. JOHNSTONE, Justice MOORE, Chief Justice
      STUART, Justice

text:
    Ex parte Ethan DORSEY. (In re Ethan Eugene Dorsey v. State of Alabama).
    1011507.
    Supreme Court of Alabama.
    April 25, 2003.
    Rehearing Denied Aug. 29, 2003.

      Jack Weaver and Robert C. King of Weaver & King, P.C., Monroeville, for petitioner.
    William H. Pryor, Jr., atty. gen.; Beth Jackson Hughes and Henry M. Johnson, asst, attys. gen.; and Andrew W. Dill, deputy atty. gen., for respondent.
   WOODALL, Justice.

Ethan Dorsey was convicted of the felony murders of Richard Cary and Scott Williams and of robbery. With regard to each of those convictions, the trial court sentenced Dorsey to life imprisonment; the sentences were to run consecutively. Dorsey was also convicted of the capital offense of murdering Timothy Bryan Crane, a 13-year-old. See § 13A-5-40(a)(15), Ala.Code 1975. The jury, by a vote of 11 to 1, recommended that on the capital conviction Dorsey be sentenced to life imprisonment without the possibility of parole. The trial court chose not to follow the jury’s advisory verdict, and sentenced Dorsey to death. See § 13A-5-47, Ala. Code 1975. Dorsey appealed.

The Court of Criminal Appeals “remanded [this case] to the [cjircuit [e]ourt ... for that court to vacate Dorsey’s conviction and sentence for robbery, ... and for the trial court to correct its sentencing order [relating to the capital conviction] to state the nonstatutory mitigating circumstances that it found to exist and to state the reasons why [it] gave the jury’s recommendation the consideration that [it] did.” Dorsey v. State, 881 So.2d 460, 523 (Ala.Crim.App.2001) (“Dorsey /”). The Court of Criminal Appeals stated the following facts:

“The State’s evidence tended to show the following: On November 20, 1996, Brad Cary discovered the bodies of his father Richard Cary, Scott Williams, and Timothy Crane at Cary’s Grocery store in Brooklyn, Alabama. All three had been shot. An autopsy revealed that Cary died of a shotgun wound to the left side of his chest; Williams died of a .25 caliber gunshot wound to his head; and Crane died of a .22 or .25 caliber gunshot wound to his head. Approximately $300 and a .357 revolver were missing from the store.
“Dorsey’s codefendant, Calvin Middleton, testified concerning the events of November 20, 1996. He said that he and Dorsey had planned to rob a grocery store in Brooklyn. Dorsey got two guns, sweaters, and gloves from his house. The two parked a rented Dodge Acclaim automobile near an abandoned house east of the store, put on hoods and gloves, and walked to the store. Dorsey was armed with a revolver and Middleton was carrying a shotgun. The two entered the store with their guns drawn. Cary was behind the counter, Williams was at the end of the counter close to the back [of the store], and Crane was leaning on the counter near the front door. Middleton thought that Cary was looking for a gun so he told Cary to walk outside. He then told Cary to get on the ground. Cary tried to grab the gun and Middleton shot him in the chest. Middleton testified that he then ran to the car because he got scared. As he was running, he said, he heard two more shots. Dorsey joined him at the car. Middleton stated that Dorsey told him that he had shot the man and boy because the boy started to run. The two then drove to Yolanda Nelson’s house in Boykin. Dorsey and Middleton eventually ended up at a nightclub in Opp, where they saw Rodney Brooks.
“Brooks corroborated Middleton’s testimony. He said that on November 20, 1996, he was riding around with Dorsey and Middleton when Dorsey said that he and Middleton were going to ‘hit a store’ in Brooklyn. He testified that they stopped at Dorsey’s house, that Dorsey went into the house and that he came out carrying a small caliber revolver and a duffel bag. He said that Dorsey asked him if he wanted to accompany them to ‘hit’ the store in Brooklyn. Brooks declined and asked that he be dropped off at 8th Avenue in Andalusia. Brooks also testified that he saw the two at a nightclub in Opp later that same night. He said that Middleton told him that he and Dorsey had ‘pulled some 187s’ when they had hit the store in Brooklyn. He said that this was a slang expression, meaning that they had killed some people.
“Brad Cary testified that on November 20, 1996, he was with his mother in their home directly across from Cary’s store when he heard several gunshots. He thought that his father, Richard Cary, was shooting at animals. Several moments later he went to the store and saw his father’s body. Brad Cary testified that he thought that his father, an avid practical joker, was playing a joke on him so he went back to the house, retrieved a gun, and fired a shot into the air. Brad testified that he then realized that his father and the others had been shot and went for help.
“While confined in the Escambia County jail, Dorsey told a fellow inmate, Windell Jordan, that Middleton and he had been involved in a robbery that had ‘gone bad,’ and that he had shot a boy and that Middleton had shot one of the men with a shotgun.
“A search of the area near the store revealed a twenty-dollar bill and a five-dollar bill in the grass near the pavement off County Road 6 — an area consistent with where Middleton said he and Dorsey had parked the car. Two days after the murders a .357 revolver was found about 150 yards from the scene of the robbery-murders in the grass near County Road 6.
“Dorsey’s defense was that he did not commit the robbery-murders. He attempted to place the blame on Brad Cary.”

Dorsey I, 881 So.2d at 471-72.

In Dorsey I, the Court of Criminal Appeals concluded that “Dorsey’s convictions for two counts of felony murder for the murders of Cary and Williams [were] valid convictions ánd [were] not affected by [its] decision.” 881 So.2d at 513. On return to remand, the Court of Criminal Appeals affirmed Dorsey’s capital-murder conviction and his sentence of death. Dorsey v. State, 881 So.2d 460, 523 (Ala.Crim.App.2001) (opinion on return to remand). Dorsey filed an application for rehearing, which the Court of- Criminal Appeals overruled on April 19, 2002, without an opinion. Dorsey petitioned this Court for certiorari review, which we granted on October 28, 2002. We affirm the judgment of the Court of Criminal Appeals insofar as it affirmed Dorsey’s felony-murder convictions. However, we reverse its judgment insofar as it affirmed Dorsey’s capital-murder conviction and remand for further proceedings consistent with this opinion.

I.

A three-count indictment was returned against Dorsey on March 12, 1997. Section 13A-5-40(a)(2), Ala.Code 1975, provides that “[mjurder by the defendant during a robbery in the first degree” is a capital offense. Count 1 of the indictment charged Dorsey under this subsection with the capital murders of Richard Cary, Scott Williams, and Timothy Bryan Crane.

Section 13A-5-40(a)(10), Ala.Code 1975, provides that “[m]urder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct” is a capital offense. Count 2 of the indictment charged Dorsey under this subsection with the capital murders of Richard Cary, Scott Williams, and Timothy Bryan Crane.

Section 13A-5-40(a)(15), Ala.Code 1975, provides that “[m]urder when the victim is less than fourteen years of age” is a capital offense. Count 8 of the indictment charged Dorsey under this subsection with the capital murder of Timothy Bryan Crane, who was 13 years of age.

“[T]he terms ‘murder’ and ‘murder by the defendant’ as used in this section [§ 13A-5-40] to define capital offenses mean murder as defined in Section 13A-6-2(a)(1).” § 13A-5-40(b), Ala.Code 1975. Section 13A-6-2(a)(l) provides that “[a] person commits the crime of murder if ... [w]ith intent to cause the death of another person, he causes the death of that person or of another person.” (Emphasis added.)

II.

At the conclusion of the guilt phase of Dorsey’s trial, the trial court instructed the jury on the capital offenses charged in the indictment, as well as certain lesser non-capital offenses included within the capital offenses:

“With respect to Count One, the trial court instructed the jury on the capital offense of intentional murder during the course of a robbery. The court also instructed the jury on the lesser-included, non-capital offenses of intentional murder, felony murder, and robbery in the first degree. Each of the murder charges was potentially applicable to each murder victim: Cary, Williams, and/or Crane.
“As for Count Two, the trial court instructed the jury on the intentional murder of two or more persons by one act or pursuant to one scheme or course of conduct — a capital offense. The court also instructed the jury on two lesser-included, non-capital offenses: (1) the intentional murder of Cary, Williams, and/or Crane; and (2) the felony murder of Cary, Williams, and/or Crane.
“Finally, as to Count Three, the court instructed the jury on the intentional murder of a victim less than fourteen years of age (Timothy Crane) — again, a capital offense. The court instructed the jury that it could also find Dorsey guilty of the lesser-included, non-capital offense of felony murder of Timothy Crane.”

State’s brief, at 13-14 (citations to reporter’s transcript omitted).

Unlike capital murder and intentional murder, as defined in § 13A-6-2(a)(l), the crime of “[flelony murder requires no intent to kill, but only the intent to commit the underlying felony.” Dorsey I, 881 So.2d at 511. Under § 13A-6-2(a)(3), Ala. Code 1975, “[a] person commits the crime of [felony] murder if ... [h]e commits ... robbery in any degree, ... and, in the course of and in furtherance of the crime ... or in immediate flight therefrom, he, or another participant if there be any, causes the death of any person.”

The jury returned verdicts convicting Dorsey of the felony murder of Cary under count 1, the felony murder of Williams under count 2, and the capital murder of Crane under count 3. At this point, concerned that the verdicts were inconsistent and/or incomplete, the trial court decided to reinstruct the jury with respect only to some of the charges embraced within count 1. While the Court of Criminal Appeals concluded that the trial court accepted the verdict on count 3 before it reinstructed the jury, thereby convicting Dorsey of the capital murder of Crane, it is clear that the trial court did not accept that verdict. In response to an inquiry from the State, the trial judge explained his position with regard to the acceptance of the verdict on count 3: “I decided, at this point, that I [will] wait and not make a ruling on that issue until I get the jury to return any verdicts they arrive at after I recharge.” Indeed, the trial court later stated: “I have not accepted any of the verdicts.”

When the trial court reinstructed the jury with regard to Cary and Williams, it limited its instructions to the lesser-included offenses of felony murder and first-degree robbery. However, with respect to Crane, the trial court charged the jury with regard to both intentional murder and felony murder.

After it deliberated a second time, the jury returned verdicts convicting Dorsey of the felony murders of Cary, Williams, and Crane, as well as robbery in the first degree. Dorsey’s counsel urged the trial court to accept those verdicts. However, those verdicts did not end the trial. Instead, the trial court decided to instruct the jury a third time regarding the charge that Dorsey had intentionally murdered Crane.

In its third instructions, the trial court stated, in part:

“I would like for you to go back to the jury room, deliberate and come back and tell me this one question: Do you find the defendant guilty of intentional murder of Timothy Bryan Crane under Count 1 of the indictment, do you find the defendant guilty of felony murder of Timothy Bryan Crane under Count 1 of the indictment or do you find the defendant not guilty of any murder at all of Timothy Bryan Crane under Count 1 of the indictment?”

The trial court later told the jury “to go back, deliberate and tell me whether or not you find the State has proved, beyond a reasonable doubt, that the defendant intentionally killed Timothy Bryan Crane.” The jury then returned, stating its “finding [of intentional murder] with regard to the death of Timothy Bryan Crane.”

The trial court ultimately accepted verdicts convicting Dorsey of the felony murder of Cary, the felony murder of Williams, robbery, and the capital murder of Crane as charged in count 3 of the indictment.

III.

In Dorsey I, the Court of Criminal Appeals correctly stated that “a verdict of felony murder and a verdict of capital murder for the murder of the same victim are legally inconsistent,” 881 So.2d at 511, explaining:
“Alabama law requires that, before an accused can be convicted of capital murder, he must have a specific intent to kill. Smith v. State, 745 So.2d 922 (Ala. Crim.App.1999).... [T]his specific intent tó kill cannot be supplied by the felony-murder doctrine." Travis'v. State, 776 So.2d 819 (Ala.Crim.App.1998), aff'd, 776 So.2d 874 (Ala.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 785," 148 L.Ed.2d 681 (2001). Felony murder requires no intent to kill, but only the intent to commit the underlying felony. Mitchell v. State, 706 So.2d 787 (Ala.Crim.App.1997). Alabama’s capital murder statute, § 13A-5-40, requires a specific intent to kill that is not necessary to convict for felony murder. One murder cannot be both unintended and intended.”

Dorsey I, 881 So.2d at 511. Reasoning that the initial verdict convicting Dorsey of the capital murder of Crane under count 3 was, therefore, legally inconsistent with the later verdict convicting Dorsey of the felony murder of Crane under count 1, the Court of Criminal Appeals expressed its belief “that the trial court had a duty to reconcile the jury’s inconsistent findings concerning Dorsey’s intent,” 881 So.2d at 513, by submitting that issue to the jury for a third time.

The State agrees with the Court of Criminal Appeals that “[t]he [trial] court was ... justified in instructing the jury a third time in order to clarify the jury’s intent.” State’s brief, at 86 (emphasis added). The State argues, in pertinent part:

“The trial court’s decision to re-instruct the jury was anything but reversible error. The jury’s first set of verdicts was necessarily incomplete because the jury failed to render a decision as to the murders of Williams and Crane under Count One or as to the murders of Cary and Crane under Count Two and did not ‘literally’ render a verdict finding Dorsey guilty of first degree robbery, a necessary predicate to the verdicts of felony murder of Cary and Williams. The court was, therefore, obligated to instruct the jury for a second time on Count One of the indictment in order to obtain a complete verdict.
“In addition, when the jury returned its second verdict with respect to Count One, it was reasonable for the trial court to surmise that the jury had not intended to rescind its verdict of capital murder under Count Three. Rather the jury had unintentionally created a potential conflict with its verdict of capital murder by focusing on the robbery issue and finding that Dorsey had committed felony murder under Count One when he killed Timothy Bryan Crane during the robbery. The court was thus justified in instructing the jury a third time in order to clarify the jury’s intent.”

State’s brief, at 86 (emphasis added). However, we conclude that Dorsey’s conviction under count 1 for the lesser offense of felony murder as to Crane precluded any further consideration of his intent by the jury, and necessarily acquitted him of the capital-murder charge in count 3 of the indictment.

At the conclusion of the guilt phase of Dorsey’s trial, the trial court instructed the jury on the capital offenses charged in the indictment. Also, without objection, the trial court instructed the jury on felony murder, as a lesser-included offense under each count of the indictment. The State does not argue that the trial court erred by including felony murder as a lesser-included offense to the capital-murder offense charged in count 3. Therefore, we assume, for the purposes of this appeal, that the trial court’s instructions to the jury were correct.

After the jury returned its initial verdicts, the trial court did not accept any of the verdicts. Instead, the trial court reinstructed the jury. With respect to the killing of Crane, the trial court charged the jury on both intentional murder and felony murder. After it deliberated a second time, the jury returned a verdict convicting Dorsey of felony murder as to Crane. That conviction of the lesser-included offense acquitted Dorsey of the greater offense of capital murder. “The conviction for a lesser included offense is an implied acquittal as to the greater offense. Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977).” Ex parte Ziglar, 675 So.2d 543, 545 (Ala.Crim.App.1996). Indeed, any retrial of Dorsey on a capital-murder charge was, upon his conviction of felony murder, barred under the principles of double jeopardy. See Ex parte Whirley, 530 So.2d 865, 867 (Ala.1988). Thus, the trial court was under a duty to accept Dorsey’s conviction of the felony murder of Crane and to acquit him of the capital-murder charges.

The State argues that “it was reasonable for the trial court to surmise that the jury had not intended[, by its felony-murder conviction,] to rescind its verdict of capital murder under Count Three.” State’s brief, at 86. Thus, the State argues, “[t]he [trial] court was ... justified in instructing the jury a third time in order to clarify the jury’s intent.” State’s brief, at 86. However, the State cites no authority in support of these arguments, and we are aware of no authority permitting an inquiry into a jury’s intent, following its return of a complete, unambiguous verdict. At any rate, the jury’s verdicts finding Dorsey guilty of felony murder, a lesser-included offense under all counts, necessarily acquitted him of the capital-murder charges, thereby réndering unnecessary any inquiry into the jury’s intent.

IV.

We have reviewed the other issues raised by Dorsey regarding the guilt phase of his trial, and we agree with the Court of Criminal Appeals that Dorsey’s convictions for the felony murders of Cary and Williams are due to be affirmed. Therefore, we affirm the judgment of the Court of Criminal Appeals insofar as that court affirmed those felony-murder convictions. However, for the aforesaid reasons, we reverse the judgment of the Court of Criminal Appeals insofar as that court affirmed Dorsey’s capital-murder conviction, and we remand the cause to the Court of Criminal Appeals for the entry of an order or for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, LYONS, and HARWOOD, JJ., concur.

JOHNSTONE, J., concurs specially.

MOORE, C.J., and SEE, BROWN, and STUART, JJ., concur in part and dissent in part.

JOHNSTONE, Justice

(concurring specially).

I concur fully in the main opinion. I add, as supplemental support for the rationale and judgment, that the trial judge’s instruction for the jury to consider further the theory of intentional murder of Timothy Bryan Crane after the jury had returned its verdict of guilty-of-the-felony-murder-of-Crane violated Dorsey’s state and federal constitutional rights to a trial by jury, which, of course, include the right to the benefit of the jury verdict of guilty-of-the-felony-murder-of-Crane, which constituted a jury verdict of not-guilty-of-the-intentional-murder-of-Crane.

MOORE, Chief Justice

(concurring in part and dissenting in part).

I concur in the Court’s affirmance of Dorsey’s convictions for the felony murders of Richard Cary and Scott Williams. I must dissent, however, from the reversal of Dorsey’s capital-murder conviction for the murder of 13-year-old Timothy Crane, and I join Justice Stuart’s writing articulating the reasons why that conviction should also be affirmed. However, I take issue with her conclusion that “the confusion in this case” would necessarily have been avoided if all possible verdicts for each count would have been on a single piece of paper.

BROWN, J., concurs.

STUART, Justice

(concurring in part and dissenting in part).

I concur in the majority’s affirmance of Dorsey’s felony-murder convictions as to Richard Cary and Scott Williams. I respectfully dissent from the majority’s decision to reverse Dorsey’s conviction for the capital murder of Timothy Bryan Crane because “Dorsey’s conviction under count 1 for the lesser offense of felony murder as to Crane precluded any further consideration of his intent by the jury, and necessarily acquitted him of the capital-murder charge in count 3 of the indictment.”

Initially, I note the facts surrounding the murder of 13-year-old Crane. The trial court’s sentencing order yields the following:

Dorsey entered the store first, followed by his accomplice Calvin Middleton. Three people were in the store. “The small boy, Timothy Bryan Crane, was leaning on the counter at the front of the store near the door.” Middleton shot one of the men, Cary, then ran out of the store to the car. Middleton heard two shots, and he saw Dorsey leave the store. Dorsey got in the car; he was carrying a pistol. Middleton testified' that “Dorsey admitted to shooting the man in the store, Williams, and the boy, Crane, because the boy started to run.” Crane died of a gunshot wound to the head. The bullet entered the back of his head and exited through his forehead. An expert witness opined that the distance from the barrel of the gun to Crane’s head was one foot or less.

In Carter v. State, 843 So.2d 812, 814 (Ala.2002), this Court stated: “ ‘[T]he general rule is that there need be no rational compatibility or consistency between the verdicts on the several counts of an indictment. The exception to this rule is where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.’ Grikis v. State, 552 So.2d 187, 187 (Ala.Crim.App.1989).”

When the jury returned its initial verdicts, the verdict as to count 1 was incomplete; however, the jury returned a complete verdict on count 3, finding Dorsey guilty of the capital murder of Crane. After reinstruction and additional deliberation, the jury returned a complete verdict as to count 1, finding Dorsey guilty of the felony murder of Crane. The verdicts returned under count 1 and count 3 as to the murder of Crane were mutually exclusive. The trial court then reconciled the mutually exclusive verdicts by asking the jury to clarify whether it had found that Dorsey had specific intent to kill Crane. Today, the majority holds that when the trial court receives mutually exclusive verdicts in a multicount indictment, the trial court is required to accept the verdict returned for the lesser crime and reject the verdict returned for the greater crime. I disagree.

Confronting a similar situation, the Georgia Supreme Court aptly stated:
“[Tjhis appeal ... involves two verdicts of guilty that not only were inconsistent, but also were mutually exclusive. The Court of Appeals in Thomas v. The State, [199 Ga.App. 586, 587, 405 S.E.2d 512, 514 (1991),] recently stated:
“ ‘The general rule dispensing with the necessity for consistency as between acquittals and guilty verdicts under a multicount indictment or information is not ordinarily applied where the jury returns multiple convictions as to crimes which are mutually exclusive of each other.’
“In Thomas, the defendant was found guilty of both armed robbery of a car and theft by receiving the stolen car. The Court of Appeals relied upon precedent in concluding that an essential ele-
ment of theft by receiving is that the goods be stolen by someone other than the accused. Hence, the two convictions in Thomas were mutually exclusive. However, because there was evidence to convict on the greater charge of armed robbery, the Court of Appeals simply vacated the lesser conviction for theft by receiving.
“This Court unanimously reversed, and ruled that where there are mutually exclusive convictions, it is insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court. [Thomas v. State, 261 Ga. 854, 413 S.E.2d 196 (1992).] Because it was both legally and logically impossible to convict Thomas of both counts, a new trial was ordered.
“The two convictions involved in this appeal, for malice murder and vehicular homicide, like the ones in Thomas, are mutually exclusive. Malice murder is defined as the killing of another ‘with malice aforethought, either express or implied.’ Vehicular homicide is defined as killing another while operating a car, ‘without malice aforethought’ and ‘without an intention to do so.’ Hence, in its first verdict, the jury in this case convicted Dumas of killing with malice aforethought and without malice aforethought; of killing both with and without an intention to do so. Obviously, the two verdicts were mutually exclusive, and under both the case law and the legal commentaries discussed above, the trial court was absolutely correct when it refused to accept the verdicts and sent the jury back to continue its deliberations.”

Dumas v. State, 266 Ga. 797, 799-800, 471 S.E.2d 508, 510-11 (1996)(footnotes omitted). See also People v. Becker, 315 Ill.App.3d 980, 248 Ill.Dec. 696, 734 N.E.2d 987 (2000), and the cases cited therein.

Here, the trial court, like the trial court in Dumas, after .acquiring complete verdicts as to count 1 of the indictment recognized that the verdicts in counts 1 and 3 regarding the murder of Crane were mutually exclusive verdicts, which the jury had a duty to reconcile. The trial court then asked the jury a specific question to determine Dorsey’s intent to kill Crane. The jury unequivocally indicated that Dorsey had the requisite intent to kill Crane; therefore, Dorsey’s capital-murder conviction should not be reversed.

Finally, I note that the confusion in this case could have been avoided if all the possible verdicts for count 1 had been on a single piece of paper, all the possible verdicts for count 2 had been on a single piece of paper, and all the possible verdicts for count 3 had been on a single piece of paper. While the jury may not have initially returned consistent verdicts as to each count, the verdicts for each count would have been complete.

SEE, J., concurs.

      . Crane's date of birth was April 15, 1983. The State produced as an exhibit at trial a certified birth, certificate.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge.

license: Public Domain

text:
    Ethan Eugene DORSEY v. STATE of Alabama.
    CR-97-1522.
    Court of Criminal Appeals of Alabama.
    Dec. 2, 2003.

      John Gordon Brock, Evergreen; and Robert Christopher King and Jack B. Weaver, Monroeville, for appellant.
    William H. Pryor, Jr., atty. gen.; and Jeremy W. Armstrong and Beth Jackson Hughes, asst, attys. gen., for appellee.
   On Remand from the Alabama Supreme Court

McMILLAN, Presiding Judge.

In accordance "with the Alabama Supreme Court’s opinion in Ex parte Dorsey, 881 So.2d 533 (Ala.2003), we reverse Ethan Dorsey’s conviction for capital murder and remand this case for proceedings consistent with that opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: SHAW, Judge. BASCHAB,

text:
    Terry KING v. STATE of Alabama.
    CR-00-0508.
    Court of Criminal Appeals of Alabama.
    April 26, 2002.

      Terry King, pro se.
    William H. Pryor, Jr., atty. gen., and Hense R. Ellis II, asst. atty. gen., for appellee.
   SHAW, Judge.

Terry King appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim.P., petition for postconviction relief, in which he requested an out-of-time appeal from the summary denial of a previous Rule 32 petition.

The record reflects that King filed his first Rule 32 petition on or about January 25, 2000. On July 10, 2000, King filed a petition for a writ of mandamus in this Court, requesting that we order the circuit court to rule on his petition. The State filed a response on August 8, 2000, arguing that King’s petition had been summarily denied on March 9, 2000, and that, therefore, King’s mandamus petition was moot. The State attached to its response the circuit court’s order denying the petition. This Court dismissed the mandamus petition on August 9, 2000.

On August 11, 2000, King filed a “Motion for an Out-of-time Appeal” in the circuit court, arguing that he had failed to appeal the denial of his first Rule 32 petition through no fault of his own because, he said, he did not receive the circuit court’s order denying the petition until he received the State’s response to his mandamus petition. The circuit court denied King’s motion on August 22, 2000.

On September 11, 2000, King filed the present Rule 32 petition, again requesting an out-of-time appeal from the summary denial of his first Rule 32 petition. He alleged, as he did in his motion for an out-of-time appeal, that he had failed to appeal the denial of his previous Rule 32 petition through no fault of his own because, he said, he did not receive the circuit court’s order denying the petition until he received the State’s response to his mandamus petition in August 2000, five months after the order had been entered. After receiving a response and motion to dismiss from the State, the circuit court summarily denied King’s petition on October 31, 2000.

On appeal, the State requests that we remand this case to the circuit court for further proceedings. We agree that a remand is necessary. In Fountain v. State, 842 So.2d 719, 724 (Ala.Crim.App.2000), affd in pertinent part, rev’d on other grounds, 842 So.2d 726 (Ala.2001), this Court recognized that a Rule 32 petitioner has the “right to petition a circuit court for an out-of-time appeal pursuant to Rule 32.1(f), Ala.R.Crim.P., of that court’s denial of postconviction relief when the petitioner has been denied the ability to file a timely appeal because of a mistake by the circuit court.” In addition, in Ex parte Johnson, 806 So.2d 1195 (Ala.2001), the Alabama Supreme Court held that denying a Rule 32 petitioner his ability to have the ruling on his petition reviewed on appeal violated the petitioner’s right to procedural due process when the petitioner’s inability to perfect a timely appeal was caused by the circuit court’s failure to give adequate notice of its ruling.

In his petition, King pleaded facts that, if true, would entitle him to relief, i.e., an out-of-time appeal from the denial of his first Rule 32 petition. King alleged that he did not receive the circuit court’s order denying his first Rule 32 petition until August 2000, five months after the order was entered. The State did not refute King’s claim in its motion to dismiss; therefore, King’s allegations must be accepted as true. See, e.g., Ligon v. State, 833 So.2d 671 (Ala.Crim.App.2001); Davis v. State, 737 So.2d 1054 (Ala.Crim.App.1998); Rice v. State, 682 So.2d 484 (Ala.Crim.App.1995); and Kolmetz v. State, 623 So.2d 453 (Ala.Crim.App.1993).

We note that the circuit court found, as the State argued in its motion to dismiss, that Bang’s claim was precluded by Rules 32.2(a)(4) and (b), Ala.R.Crim.P., because it was raised and denied in King’s motion for an out-of-time appeal filed on August 11, 2000. However, the circuit court did not have jurisdiction to rule on King’s motion for an out-of-time appeal and, therefore, that motion could not be used to preclude King’s petition as successive.

There is no provision in Rule 32, or anywhere in the Alabama Rules of Criminal Procedure, providing for a “motion” for an out-of-time appeal from the denial of a previous Rule 32 petition. The proper avenue for seeking an out-of-time appeal from the denial of a Rule 32 petition is to file another Rule 32 petition in the circuit court or to file a petition for a writ of mandamus in this Court. See Ex parte Fountain, supra; Ex parte Johnson, supra; and Brooks v. State, [Ms. CR-00-1134, April 26, 2002] — So.2d-(Ala.Crim.App.2002). A simple motion, not rec ognized by the Rules of Criminal Procedure, filed when there is no action currently pending before the circuit court, is not sufficient to invoke that court’s jurisdiction. Because the circuit court did not have jurisdiction to rule on King’s motion

for an out-of-time appeal, the fact that that motion was filed cannot be used to preclude as successive King’s present Rule 32 petition requesting the same relief. Therefore, the circuit court erred in finding that King’s claim was precluded.

Accordingly, we must remand this case to the circuit court for it to address the merits of King’s claim that he failed to appeal the denial of his first Rule 32 petition through no fault of his own and to make specific findings of fact regarding that claim. The circuit court may either conduct an evidentiary hearing or take evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. Due return shall be filed with this Court no later than 42 days from the date of this opinion. The return to remand shall include the circuit court’s written findings, along with a transcript of the evidentiary hearing, if any, or other evidence received by the court.

REMANDED WITH DIRECTIONS.

McMillan; PM., and COBB, J., concur. BASCHAB, J., concurs specially, .with opinion, which WISE, J., joins.

BASCHAB,

Judge, concurring specially.

I concur with the majority’s opinion. However, I write specially to urge the Alabama Supreme Court to revisit its decisions in Ex parte Johnson and Ex parte Fountain and to clarify what is the appropriate procedure for seeking an out-of-time appeal from the denial or dismissal of a prior Rule 32 petition.


author: PER CURIAM.

text:
    Everett RASHOTSKY, Appellant, v. Rochelle RASHOTSKY, Appellee.
    No. 3D03-1037.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 15, 2004.
    Paul Morris, Miami, for appellant.
    Ira L. Dubitsky, Miami, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

This is appellant Everett Rashotsky’s (“former husband”) third appeal challenging an alimony award as excessive. After 32 years of marriage to Rochelle Rashot-sky (“former wife”), the former husband filed for dissolution. At the time of trial in 1999, the former husband earned a net monthly income of $10,500, plus a year-end sum of money based upon his sales performance. The former wife claimed monthly living expenses of $7082, and the former husband claimed reduced living expense of $4315. Although expressing serous reservations about the former wife’s spending habits, the trial court ordered the former husband to pay $6,000 a month in permanent periodic alimony plus the first $12,984 of any bonus.

The former husband appealed. This Court reversed the alimony award finding it was not supported by the evidence, and that the trial court erred in its findings with regard to the tax consequences of the award. Rashotsky v. Rashotsky, 782 So.2d 542 (Fla. 3d DCA 2001). Noting that the alimony award exceeded the former husband’s ability to pay and to five within his stated monthly needs of $4315, this Court reversed and remanded with specific instructions to reduce the award.

Thereafter, a successor trial judge ordered the former husband to pay monthly alimony of $7610. The former husband again appealed. This Court reversed and remanded again, finding the trial court’s refusal to reconsider evidence as to the parties needs and ability to pay, “thwarted” this Court’s prior directive. Rashotsky v. Rashotsky, 829 So.2d 275 (Fla. 3d DCA 2002).

Two evidentiary hearings were conducted on remand. Both, parties stipulated that 1999 was the relevant year for determining need and ability to pay, and presented evidence as to expenses and income. The former husband testified that the year-end additional sum of money he received from his employer was not a “bonus,” but rather was a purely speculative commission amount which is entirely dependent upon year-end sales figures. The commission ranged from $15,000 to $65,000.

At the conclusion of the hearings, the trial court somehow found the former wife needed $8,519 per month in order to meet her stated monthly needs of $6,010. The trial court then found the former husband had the ability to pay $5,200 per month. The former husband was ordered to pay $5,200 in permanent monthly alimony, as well as the first $39,600 each year from any commission bonus he receives. The former husband then filed the instant appeal.

This case has come before this Court on two prior occasions. In both instances, this Court reversed and provided specific instructions on remand. Rashotsky v. Rashotsky, 829 So.2d at 275; Rashotsky v. Rashotsky, 782 So.2d at 542. These instructions were not followed. Apparently, this Court was not clear in its previous two opinions. Therefore, based upon the record in this case, we determine that the appropriate award of alimony is $4,800 per month, and the wife is to receive $15,000 per year from whatever bonus the husband receives. We believe this opinion is abundantly clear and leaves no room for misinterpretation.

Reversed and remanded with directions.


author: RAMIREZ, J.

text:
    STATE FARM MUTUAL AUTOMOBILE, INSURANCE CO., Appellant, v. UNIVERSAL MEDICAL CENTER OF SOUTH FLORIDA, INC., Appellee.
    No. 3D02-2483.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing and Rehearing En Banc Denied July 23, 2004.

      Green, Murphy, Wilke, Murphy & Spel-lacy, and Jonathan S. Brooks; Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, and Nancy Gregoire, Fort Laud-erdale, for appellant.
    Lidsky, Vaccaro & Montes, and Charles L. Vaccaro, Hialeah, for appellee.
    Before LEVY, GERSTEN, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING, REHEARING EN BANC AND/OR FOR CERTIFICATION

RAMIREZ, J.

We grant appellee Universal Medical Center of South Florida, Ine.’s motion for rehearing, withdraw this Court’s November 19, 2003 opinion and substitute the following in its place.

State Farm Mutual Automobile, Ins. Co. appeals the entry of final judgment in favor of Universal underlying which is Universal’s suit against State Farm for services it rendered to a State Farm insured. In this Court’s November 19, 2003 opinion, we reversed the final judgment entered in Universal’s favor and concluded that the medical assistants were unauthorized to perform physical therapy and thus State Farm had no obligation to pay for their services.

Universal moved for rehearing, rehearing en banc and/or certification to the Florida Supreme Court. In support of Universal’s motions, a number of professional licensing boards filed a amicus curiae briefs on Universal’s behalf, including the Florida Chiropractic Association, Inc., Florida Medical Association, Inc., Florida Osteopathic Medical Association, Inc., Florida Podiatric Medical Association, Inc., and the Florida State Massage Therapy Association, Inc.

We have considered Universal’s motions, the amici curiae briefs filed on its behalf, State Farm’s response to Universal’s motions, as well as our previous decision. For the reasons that follow, we now hold that medical assistants are authorized to administer the physical modalities they performed for which State Farm is obligated to pay. This decision is consistent with legislative intent and the way in which physicians for the varying medical disciplines deliver health care and conduct their business in the State of Florida.

On August 28, 2000, Blanca Franco was injured in an automobile accident. State Farm was Franco’s automobile insurance carrier at the time of the accident and Universal is the health care provider that treated Franco for the injuries she sustained in the auto accident.

State Farm declined to pay for a number of services that Universal rendered to Franco from August 2000 to December 2000. Universal, as Franco’s assignee, subsequently sued State Farm seeking damages for State Farm’s failure to pay the entire claim and subsequent breach of Franco’s policy. State Farm answered and raised various affirmative defenses, including that the bills which were sued upon were unreasonable, unnecessary or unrelated to the accident, represented treatment that was unlawfully rendered and not ordered, and that Universal did not provide any treatment, service or accommodation to Franco.

At trial, Dr. Carlos D. Carranza, Universal’s office manager and a licensed medical doctor, testified that he recommended that Franco receive a course of physical therapy. A number of medical assistants, all of whom were unlicensed physical therapists, performed a number of tasks that included the application of hot packs, electrical muscle stimulations, ultrasound therapy treatments, and mechanical massages. Dr. Carranza testified that the medical assistants administered the physical therapy while he was present at the medical facility and under his supervision.

State Farm moved for directed verdict arguing that the services rendered were illegal because the medical assistants were unauthorized under Florida law to perform physical therapy. The trial court denied the motion. The jury subsequently returned a verdict in Universal’s favor finding that State Farm breached its insurance contract by failing to pay Universal for the medical services Universal rendered to Franco that were reasonable, necessary, and causally related to the auto accident. The jury awarded Universal $1,584.00. State Farm moved for rehearing ■ or for certification of question of great public importance, The trial court denied the motion for rehearing, entered its final judgment in Universal’s favor, and certified the following question to this Court:

Whether a person defined as a medical assistant under section 458.3485, Florida Statutes- (2001), but not licensed as a physical therapist under chapter 486, Florida Statutes (2001), may ‘lawfully render’ any of the physical therapy modalities enumerated in section 486.021(11), Florida Statutes (2001) for purposes of qualifying for. payment of assigned personal injury protection benefits under section 627.736(5)(a), Florida Statutes (2001).

We begin our discussion with chapter 458, Florida Statutes (2001), which governs “Medical Practice” and the medical assistant profession. Under section 458.3485(1), Florida Statutes (2001), a medical assistant is permitted to assist “in all aspects of medical practice under the direct supervision and responsibility of a physician.” Section 458.3485(2) specifically authorizes a medical assistant to assist “with patient examinations or treatments,” and section (d) .authorizes the medical assistant to operate “office medical equipment.” The medical assistant is also authorized under the statute to perform a number of other medically related procedures not necessarily relevant here.

State Farm argues that the physical therapy performed on Franco was illegal because chapter 486, Florida Statutes (2001) specifically requires that type of therapy to be performed by licensed physical therapists and the therapists who performed the therapy were unlicensed. We do not agree with State Farm’s position.

Section 486.021(11) describes the practice of physical therapy as:

[T]he performance of physical therapy assessments and the treatment of any disability, injury,. disease, or other health condition ... or the prevention of such disability, injury, disease, or other condition of health, and rehabilitation ... by the use of radiant energy, including ultraviolet, visible, and infrared rays; ultrasound; water; the use of apparatus and equipment in the application of the foregoing or related thereto.

Section 486.161 requires the physical therapists to be licensed, unless the physical therapists are exempt pursuant to section 486.161(1) which provides as follows:

No provision of this chapter shall be construed to prohibit any person licensed in this state from using any physical agent as a part of, or incidental to, the lawful practice of her or his profession under the statutes applicable to the profession of chiropractic physician, podiatric physician, doctor or medicine, massage therapist, nurse, osteopathic physician or surgeon, occupational therapist, or naturopath. (Emphasis added).

The physical therapy the medical assistants performed in this case fell within the scope of the exemption outlined in section 486.161(1) as physical therapy “incidental to” the practice. In fact, the relevant language of chapter 486 clearly allows licensed physical therapists to assist with patient examinations and treatment, and also allows them to operate medical equipment. The physical therapy modalities performed also fell within the common practice of chiropractic medicine, osteopathic medicine, podiatric medicine, allo-pathic medicine, and massage therapists.

Furthermore, whether or not these medical assistants were licensed is of no consequence under section 486.161(1). The health care profession routinely delegates to licensed, as well unlicensed, employees the performance of duties similar to or the same as the duties the medical assistants performed in this case. The physical therapy modalities at issue here, the application of hot packs, electrical muscle stimulators, ultrasound therapy devices, and mechanical massage, all involved either relatively simple modalities performed to assist the physician with patient treatments or the use of standard medical equipment. The modalities and the use of the medical equipment are also deemed to fall within the ordinary and customary practice of the respective supervising physician.

Similarly, whether or not the physical therapy the medical assistants performed fell within the scope of the supervising physician’s practice is a determination properly left for the respective licensing boards of medicine that discipline physicians for the physician’s improper delegation of duties. Each of the health care physician’s professions has a regulatory body or licensing board that regulates the conduct of the physicians and sets forth minimum standards for their licensure and practice. These regulatory agencies are numerous and they act consistently with the legislative purpose underlying the creation of the Department of Health’s Division of Medical Quality Assurance which is responsible for a number of boards and professions. See § 20.43(3)(g), Fla. Stat. (2003). These regulatory agencies include The Board of Medicine, The Board of Osteopathic Medicine, The Board of Chiropractic Medicine, The Board of Podiatric Medicine, The Board of Massage Therapy, and The Board of Physical Therapy Practice, and are thus responsible for the determination of whether a medical assistant validly performs physical therapy modalities. See §§ 20.43(3)(g)(2)-(5), (21), (26), Fla. Stat. (2003).

Finally, we note that for years the insurance companies in this state have been paying for the modalities rendered by medical assistants under personal injury protection benefits. As this case is basically a coverage issue, we may look to the custom and usage in the industry to support our decision today. See Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 36 (Fla.2000), citing National Merck. Co. v. United Serv. Auto. Ass’n, 400 .So.2d 526, 580 (Fla. 1st DCA 1981) (when a court interprets insurance policy language, the court may consider established custom and usage in the insurance industry). ■

We therefore affirm the final judgment, and answer the certified question in the affirmative.

      . We consider the motion for rehearing en banc and/or for certification to the Florida Supreme Court to be moot.


author: SHEVIN, Judge.

text:
    VANNAMEI CORPORATION, Appellant, v. ELITE INTERNATIONAL TELECOMMUNICATIONS, INC., Appellee.
    No. 3D03-244.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Rehearing and Rehearing En Banc Denied Aug. 11, 2004.
    A. Margaret Hesford, Margate, for appellant.
    Michael R. Seward, for appellee.
    Before LEVY, SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

Vannamei Corporation appeals a final judgment in favor of defendant, Elite International Telecommunications, Inc., finding that Vannamei was part of a joint venture and not entitled to recover against Elite. We reverse.

Contrary to Elite’s assertions, the final judgment’s finding that a joint venture existed is not supported by competent substantial evidence. “The [joint venture] relationship must arise out of a contract, express or implied. Such a contract is an indispensable prerequisite” to the venture’s existence. Kislak v. Kreedian, 95 So.2d 510, 515 (Fla.1957). Elite, the party alleging the existence of a joint venture, bore “the burden of both alleging and proving that an agreement or contract supports the relationship.... ” Id. “[Wjhere, as in this case, the events and transactions which form the basis of the alleged relationship are not in writing, the burden of establishing the existence of such contract, including all of its essential elements, is indeed, as it should be, a heavy and difficult one.” Id.; Conklin Shows, Inc. v. Dep’t of Revenue, 684 So.2d 328, 332 (Fla. 4th DCA 1996). Elite did not carry this burden.

The only evidence presented as to the existence of an understanding among the parties was the self-serving testimony of Elite’s principal. No other testimony was sufficient to support a conclusion that a contract existed. “The very fact that the agreement was not reduced to writing is evidence, however, slight, that no such agreement actually existed.” Kislak, 95 So.2d at 515; Conklin Shows, 684 So.2d at 332. Moreover, although a formal contractual agreement is not required for a joint venture to exist, the venture’s existence “may be inferred from the conduct of the parties or from facts and circumstances which make it appear that a joint enterprise was in fact entered into.” Conklin Shows, 684 So.2d at 332 (quoting Kislak). The evidence in this case is devoid of any such conduct or circumstances from which an agreement can be inferred. Here, Elite’s own actions in suing its client to recover the cost of equipment, the same equipment for which Vannamei seeks payment below, coupled with Elite’s admission that it does not intend to share any recovery from that action with any of its purported joint venturers, contradicts the principal’s bare testimony of a joint venture.

Additionally, the finding that a joint venture existed also fails because there is no competent substantial evidence that the parties enjoyed “joint control or right of control” over the undertaking. Kislak, 95 So.2d at 515. The record is devoid of any evidence that Vannamei had any authority or right to bind Elite in any manner in connection with the undertaking, and there’s no demonstration that Elite had any authority to bind Vannamei. The testimony demonstrated that Elite solicited equipment from Vannamei to satisfy its contract with a third party. Vannamei had no contact, dealings, or obligations with that party. Failure to prove the existence of this element is fatal to Elite’s joint venture defense. See Conklin Shows, 684 So.2d at 332 (joint venture not proven where no mutual control over operations could be demonstrated; appellant had exclusive control over operations); Julian Consol, Inc. v. Conrad, 553 So.2d 784 (Fla. 1st DCA 1989)(affirming finding that joint venture existed because parties shared joint control where neither party had exclusive control over the undertaking); McKissick v. Bilger, 480 So.2d 211 (Fla. 1st DCA 1985)(no joint venture proven where there is no evidence of joint right of control); Ely v. Shuman, 233 So.2d 169 (Fla. 3d DCA 1970)(dismissal of complaint alleging joint venture appropriate where joint control element not alleged or demonstrated by exhibits).

Based on the foregoing, we reverse the final judgment and remand for entry of a liability judgment in Vannamei’s favor, and further proceedings to determine the sums owed to Vannamei.

Reversed and remanded.


text:
    Alvin Frederick WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-684.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Alvin Frederick Wilson, Sanderson, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We find no merit in appellant’s latest appeal and affirm. Moreover, we hold that his successive petitions constitute an abuse of the judicial system. See, e.g., Carlisle v. State, 849 So.2d 1146 (Fla. 5th DCA 2003); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). Accordingly, we order Wilson to show cause within 30 days from the date of this opinion why he should not be precluded from filing any further pro se pleadings raising these issues in this criminal case. See, e.g., State v. Spencer, 751 So.2d 47 (Fla.1999); Steele v. State, 859 So.2d 524 (Fla. 5th DCA 2003).

AFFIRMED.

SAWAYA, C.J., PLEUS and ORFINGER, JJ., concur.


text:
    Alvin Frederick WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-684.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Alvin Frederick Wilson, Sanderson, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

In Wilson v. State, 881 So.2d 563, 2004 WL 1057800 (Fla. 5th DCA May 7, 2004), appellant was ordered to show cause why he should not be precluded from filing further pro se motions. See, e.g., State v. Spencer, 751 So.2d 47 (Fla.1999). We have carefully considered appellant’s response and find that good cause has not been shown.

Therefore, in order to conserve judicial resources, appellant is prohibited from filing any additional pro se appeals, pleadings, motions and petitions relating to his conviction and sentence in the underlying case. Any pleadings or papers filed in this Court regarding said conviction and sentence must be reviewed and signed by an attorney licensed to practice in this state. The Clerk of the Fifth District Court of Appeal is directed not to accept any further pro se pleadings or filings from appellant in Lake County, Fifth Judicial Circuit Court Case No. 90-580-DFA.

SAWAYA, C.J., PLEUS and ORFINGER, JJ., concur.


text:
    Thomas POFF and Charles Randolph, Appellants, v. The STATE of Florida, Appellee.
    No. 3D03-1300.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 15, 2004.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Thomas Poff and Charles Randolph appeal their convictions and sentences for burglary and grand theft, claiming that the double jeopardy clause of the Florida Constitution precluded retrial where a mistrial had previously been granted. Poff additionally argues that admission of collateral crimes evidence and argument at the retrial mandates reversal.

Having reviewed the record from the initial trial, we find that double jeopardy did not bar a retrial in this case. See Gore v. State, 784 So.2d 418, 427 (Fla. 2001)(“[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first ... ”)(quoting Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)); Duncan v. State, 525 So.2d 938, 941 n. 1 (Fla. 3d DCA 1988)(declining to adopt as a matter of state constitutional law a standard broader than that stated in Kennedy to determine when double jeopardy will bar retrial following a defendant’s motion for mistrial due to prosecutorial misconduct).

Following a review of the record, we find no Williams rule violation.

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla.1959)(precludmg similar fact evidence of other crimes, wrongs or acts relevant solely to prove bad character or propensity).


text:
    Paul COLLINS, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D03-1041.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Rehearing and Rehearing En Banc Denied Sept. 15, 2004.
    John G. Crabtree, Key Biseayne; Jeffrey A. Norkin (Plantation), for appellant.
    Alejandro Vilarello, City Attorney, and Julie O. Bru, and Regine Monestime, Assistant City Attorneys, for appellee.
    Before GERSTEN, GREEN, and ‘ SHEPHERD,. JJ.
   PER CURIAM.

Affirmed. See Thomas v. Beary, 770 So.2d 699, 700 (Fla. 5th DCA 2000) (“[U]l-timate guilt or innocence is irrelevant to the right, even the obligation, of the police to make an arrest..If the officers’ investigation reasonably convinces them that a party has committed a felony, this panel ■will not make the officers liable if facts given by a witness subsequently prove untrue.”); Florida Game & Freshwater Fish Comm’n v. Dockery, 676 So.2d 471, 474 (Fla. 1st DCA 1996) (“To show probable cause in a false arrest situation, it is not necessary that the arresting officer know facts that would absolutely prove beyond a reasonable doubt the guilt of the person charged; probable cause exists when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged.”); State v. Gavin, 594 So.2d 345, 346 (Fla. 2d DCA 1992) (“Once the witnesses identified the appellee as the man they had seen at the burglarized deli, the police had probable cause to make an arrest.”).