author: BASCHAB, Judge.

text:
    Jerry Allen BARNETTE v. STATE of Alabama.
    CR-01-2419.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.

      Jeremy W. Armstrong, Phenix City; and James P. Graham, Jr., Phenix City, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

The appellant, Jerry Allen Barnette, was convicted of bribing a witness, a violation of § 13A-10-121(a)(l), Ala. Code 1975. The trial court sentenced him to serve a term of seven years in prison. The appellant did not file any post-judgment motions. This appeal followed.

W.G., S.M.’s stepfather, testified that an incident involving a sexual assault of fourteen-year-old S.M. was reported to law enforcement authorities on November 22, 1999. Shortly thereafter, the appellant telephoned him and said he wanted “to talk with [him] on the situation.” (R. 146.) W.G. initially told the appellant he could not meet with him, but changed his mind after he contacted Sergeant Erich Babbitt, the detective who was in charge of the investigation.

On November 29, 1999, law enforcement officers put a body microphone on W.G., and W.G. went to the appellant’s barbershop and met the appellant. W.G. and the appellant then went across the street to a gasoline station to talk privately. During that conversation, the appellant told W.G. that “Kenny had put his foot in his mouth or something, and [they] discussed the fact about him supposed to be trying to get the situation squashed or something”; that he was acting as the “middle man” or “in-between”; that S.M. “was supposed to had did some oral sex or something”; and that a prosecution “would hurt both sides of the family.” (R. 152, 153.) W.G. testified that his trailer was in a trailer park owned by Williford. He also testified that the appellant offered him “a couple of thousands” dollars to move the mobile home; showed him “a lot” of money; told him he could “pay for everything”; and told him S.M. would have to “tell the police that the — it didn’t happen.” (R. 154, 155, 156.) After W.G. told the appellant he had to discuss the matter with his wife, the appellant wrote his home telephone number on a card, gave it to him, and told him to call him at any time.

Subsequently, W.G. telephoned the appellant, and they agreed to meet again. A few days later, they met at the gasoline station. At that time, the appellant had “a wad of money” and said “he could take care of everything.” (R. 160.) Specifically, he said he would move W.G.’s mobile home and set it up anywhere W.G. wanted, pay six months rent, pay W.G. if he was off of work, and pay for a lawyer if W.G. needed one. At the end of the meeting, the appellant put the money on a newspaper stand and told W.G. he was giving it to him “in good faith that he will take care of all of that.” (R. 162.) W.G. testified that he took the money, that it was $500, and that he turned it over to Babbitt.

Erich Babbitt testified that, in November 1999, he was a detective with the Opelika Police Department and that he was assigned to investigate charges that Kenneth Williford had raped and sodomized S.M. He also stated that the report was made on November 22, 1999, that the investigation began immediately, that a forensic sexual assault exam was performed on S.M. at the hospital, and that he started interviewing witnesses. Babbitt testified that he talked to W.G. and S.M.’s mother and that they had been informed about the investigation. On November 29, 1999, W.G. told him a man who had identified himself as Jerry Barnette had telephoned him at work and said he wanted to meet with him. Subsequently, W.G. agreed to wear a body wire, and they arranged a meeting between W.G. and the appellant for later that day.

Babbitt, who monitored the meeting at the gasoline station, testified that W.G. asked the appellant what he wanted regarding the rape case. The appellant told him that he was a good friend of Willi-ford’s family; that he knew what was going on; that Williford had told him S.M. had “given him a blow job, and that she had rubbed his stuff all over her” and that he knew he had “f-up”; that “they wanted to do whatever they could to make the whole thing just go away”; that the situation would be “a big issue” for both families; that “they were willing to do whatever it took to make this whole rape and sodomy case just — just go away;” and that “ “we want [S.M.] to say this whole thing never happened’ ” and to tell law enforcement officers she had made up the allegations. (R. 187, 188.) When W.G. asked the appellant what he was offering, the appellant told him that they were willing to move his mobile home and pay to have it set up again, that they would give him several thousand dollars under the table, and that they would pay any attorney fees W.G.’s family might incur if S.M. got into trouble for saying she had made up the story. W.G. told the appellant he wanted to talk to his wife before they decided whether to accept the offer. The appellant then wrote his home and work telephone numbers on a business card, gave it W.G., and told W.G. to get back in touch with him.

On December 1, 1999, W.G. contacted Babbitt and told him the appellant had contacted him in person and said he wanted to meet with him and discuss the situation again. On December 2, 1999, W.G. and the appellant set up another meeting for December 6, 1999. On December 6, 1999, W.G. and the appellant met at the same BP station. Before that meeting, Babbitt put another body wire on W.G., and he and another detective monitored that meeting. During that meeting, the appellant told W.G. that, if he would influence S.M. to tell law enforcement officers she had lied, he would help them hire an attorney if they got into any legal trouble. He also again told W.G. he would help him move his mobile home and pay for all of his moving expenses. He then took out some money, said he would leave it for W.G. to pick up, and said there would be three times that amount if W.G. cooperated. W.G. told the appellant he would get back with him, picked up the money, left the area, and met with the officers. Babbitt testified that the money consisted of $500 in $20 bills.

The appellant argues that the State did not present sufficient evidence to support his conviction.

“A person commits the crime of bribing a witness if he offers, confers or agrees to confer any thing of value upon a witness or a person he believes will be called as a witness in any official proceeding with intent to:
“(1) Corruptly influence the testimony of that person.... ”

§ 13A-10-121(a), Ala.Code 1975 (emphasis added). An “official proceeding” is “[a]ny proceeding heard before any legislative, judicial, administrative or other government agency or official authorized to hear evidence under oath.” § 13A-10-100(b)(5), Ala.Code 1975. Finally,

“[a] ‘material element’ of the crime of bribery is the defendant’s corrupt ‘intent’ at the time of the offense. Roden v. State, 5 Ala.App. 247, 254, 59 So. 751 (1912), quoted in Pope v. State, 365 So.2d 369, 372-73 (Ala.Cr.App.1978).... As this court has noted, proof of the appellant’s ‘intent’ can be inferred from all of the surrounding circumstances. Paige v. State, 494 So.2d 795 (Ala.Cr.App.1986).
“... ‘It is largely a question of fact, rather than a question of law, for the determination of the jury, whether particular conduct, or particular expressions of the accused, refer to a criminal offense, and spring from his consciousness of guilt.’ Pope v. State, 365 So.2d 369, 374 (Ala.Cr.App.1978).”

Maddox v. State, 520 So.2d 143, 148 (Ala.Crim.App.1986).

“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 constitute 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 (1960).’ 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,

“ ‘[cjircumstantial 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).

“ ‘Intent, ... 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). Finally,

“ ‘[t]he 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).

A.

Initially, the appellant contends that the State did not prove that W.G. and S.M. were witnesses in an official proceeding. However, § 13A-10-121(a)(l), Ala. Code 1975, includes the language “a person he believes will be called as a witness in any official proceeding.” In cases like this, where official proceedings have not yet begun and the witnesses have not been named, it is sufficient that the defendant believes that a person will be called as a witness in an official proceeding.

The appellant further contends that the State did not prove that he paid S.M. anything of value or that he had any direct contact with her. However, the State presented testimony that the appellant had offered W.G. money and had offered to pay various expenses for W.G. if W.G. would influence S.M. to change her statements regarding the rape and sodomy charges. Section 13A-10-121, Ala.Code 1975, does not specifically require that the defendant contact or speak directly to the person whose testimony he is attempting to influence. Therefore, the fact that the appellant did not contact or speak directly to S.M. is not fatal to this case.

Based on the evidence the State presented, the jury could have reasonably concluded that, even though there was not any official proceeding pending at the time of the appellant’s actions, the appellant believed W.G. and/or S.M. would be called as a witness in an official proceeding; that he offered, conferred, or agreed to confer a thing of value upon W.G. and/or S.M. to prevent one or both of them from testifying during any official proceedings that might be instituted; and that he did so with the intent to corruptly influence W.G. and/or S.M.’s testimony during any such proceedings.

B.

The appellant also contends that the State did not prove that an official proceeding had commenced at the time the bribery took place. However, § 13A-10-121(a)(1), Ala.Code 1975, includes the language “a person he believes will be called as a witness in any official proceeding.” In cases in which official proceedings have not yet begun, it is sufficient that the defendant believe that a person will ultimately be called as a witness in an official proceeding. Based on the evidence the State presented, the jury could have reasonably concluded that, even though there was not any official proceeding pending at the time of the appellant’s actions, the appellant believed an official proceeding would be initiated and believed W.G. and/or S.M. would be called as a witness in that proceeding.

For these reasons, the appellant’s arguments are without merit. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . The indictment alleged that the appellant
      “did offer, confer or agree to confer a thing of value, to-wit: lawful paper currency of the United States of America, the exact denominations of which are unknown to the Grand Jury, upon [W.G.] and/or [S.M.], a witness or a person he believed would be called as a witness in an official proceeding, to-wit: Spring Term of the Grand Jury of the 37th Judicial Circuit of Alabama, with intent to corruptly influence the testimony of that person, in violation of § 13A-10-121 of the Code of Alabama, against the peace and dignity of the State of Alabama."
      (C.R.6.)

      . On December 14, 1999, the magistrate signed warrants for Williford's arrest for first-degree rape and first-degree sodomy. Subsequently, during its Spring 2000 Term, the Lee County Grand Jury returned indictments against Williford for the first-degree rape and first-degree sodomy of S.M.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    D.D. v. STATE of Alabama.
    CR-01-2109.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Keith A. Howard, Wetumpka, for appellant.
    William H, Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for ap-pellee.
   COBB, Judge.

After having been indicted for first-degree burglary and first-degree theft of property, D.D. was granted youthful offender status on May 3, 2002. On that same day, D.D. pleaded guilty and was adjudicated a youthful offender. The trial court sentenced D.D. to three years in prison, but suspended the sentence and placed him on supervised probation for three years. One hour later, D.D. was again taken into custody for allegedly violating a condition of his probation. Twelve days later, after a revocation hearing at which D.D. argued the contentions in his “Motion for [His] Immediate Release,” the trial court revoked D.D.’s probation. This appeal followed.

The facts relevant to the issues on appeal are as follows: Approximately an hour after he was placed on probation, D.D. was subjected to a drug test. At that time, D.D. had not been given a written copy of the terms of his probation. D.D.’s urine specimen tested positive for the presence of tetrahydrocannabinol (THC), indicating that he had smoked marijuana at some point prior to his being drug tested. D.D. admitted to his probation officer that he had smoked marijuana approximately three weeks before the guilty plea proceedings and the administration of the drug test. The trial court revoked D.D.’s probation based on the positive drug test result.

The record does not reflect that D.D. was ever given a written copy of the terms of his probation. Neither the trial court nor the State has disputed D.D.’s contention, raised several times during the revocation hearing, that he did not receive a written copy of the conditions of probation before he was rearrested for the alleged probation violation. Although a copy of the written order of probation is in the record, and it is dated “5-3-02” and signed by the trial court, the probation officer never signed in the space indicating that a copy of the written order was ever delivered to D.D. Additionally, D.D. never signed in the space indicating that he had received a copy of the written conditions of probation. (C. 25.)

D.D. makes several arguments on appeal, all of which he submitted to the trial court in his “Motion for Immediate Release.” D.D. argues that the trial court erroneously revoked his probation based on an act that occurred before he was placed on probation; that the trial court erroneously revoked his probation without his ever receiving a written copy of his probation conditions, in violation of Rule 27.6(e), Ala. R.Crim. P.; that there was insufficient evidence to support the revocation; that his due process rights were violated; and that the trial court abused its discretion by failing to determine that revocation followed by imprisonment was the most appropriate disposition of the case.

Because we remand this cause based on the fact that D.D.’s probation was revoked in violation of Rule 27.6(e), we pretermit discussion of his other arguments on appeal.

Rule 27.1, Ala. R.Crim. P., provides, in pertinent part:

“All conditions of probation must be incorporated into a court’s written order or probation, and a copy thereof must be given to the probationer. In addition, the court or probation officer shall explain to the probationer the purpose and scope of the imposed conditions and regulations and the consequence of probationer’s violation of those conditions and regulations.”

Additionally, the Committee Comments to Rule 27.1 provide, in pertinent part:

“Providing the probationer with both a written copy of imposed conditions and regulations and an explanation thereof aids in the reinforcement of the probationer’s understanding of probation. The rule should alleviate the court’s and the probation officer’s supervisory burden by eliminating some unnecessary violations caused by probationer’s lack of understanding.”

Finally, Rule 27.6(e) provides:

“If the court finds that a violation of the conditions or regulations of probation or instructions occurred, it may revoke, modify, or continue probation. Probation shall not be revoked for violation of a condition or regulation if the probationer had not received a written copy of the condition or regulation.”

(Emphasis added.) The rule that a probationer is to receive a written copy of the conditions or regulations of probation is mandatory in nature. See Byrd v. State, 675 So.2d 83 (Ala.Crim.App.1995).

We note that this is not a case where a defendant was required to pass a drug test in order to qualify for probation. Rather, because of the order of events, this is a case where a defendant was required to pass a drug test to remain on probation.

Although the trial court orally stated that a term and condition of D.D.’s remaining on probation was “no drugs, no alcohol, ... make yourself available for urinalysis, breath test[sj, and blood test[s] when requested by the probation officer” (C. 30), nothing in the record indicates that the trial court’s “no drugs” edict was a clear condition, understood by D.D., that he was to pass a drug test within one hour of being placed on probation in order to remain on probation. Additionally, nothing in the record before us indicates that those conditions were reduced to writing and given to D.D. Rule 27.1, its Committee Comments, and Rule 27.6(e) are specific in requiring that the conditions be in writing, and the provisions explain the policy considerations behind such a requirement. Thus, even assuming that the oral instruction was sufficiently specific to inform D.D. of the requirement, the oral instruction was insufficient to fulfill the requirements of Rules 27.1 and 27.6(e).

Additionally, nothing in the record indicates that D.D.’s probation was revoked based on his having committed a new criminal offense, which is an implicit condition to remaining on probation that need not be expressed in writing. See Pettway v. State, 628 So.2d 1066, 1067 (Ala.Crim.App.1993) (“A condition implicit in every probationary sentence is that the defendant, ‘while under such sentence, will not commit another criminal offense.’ ”) (quoting Wilcox v. State, 395 So.2d 1054, 1056 (Ala.1981)). That is, D.D. was neither charged with possession of marijuana, nor had he been advised that “regardless of the outcome of the revocation hearing, [he could] still [have been] held for that offense and that any statement made by the probationer at the hearing [could have been] used against [him] at a subsequent proceeding or trial,” as is required in such a case under Rule 27.6(d)(2), Ala. R.Crim. P.

“It would be pointless to remand this case to determine whether [the probationer] was given a written order of probation, when the record persuades us that he was not.” Byrd v. State, 675 So.2d 83, 84 (Ala.Crim.App.1995).

For the reasons stated above, the trial court’s order revoking D.D.’s probation is reversed, and the case is remanded.

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in the result.

      . It is unclear from the record which charge underlay the adjudication of delinquency.

      . The record reflects that, at his sentencing hearing, D.D. was not informed that he would have to pass a drug test in order to be placed on probation. This is true although, at the revocation hearing, the trial court claimed that at the sentencing hearing it had asked D.D. whether he could pass a drug test, and D.D. had stated that he could pass a drug test if one were administered. Although the trial court stated during the revocation hearing that this was its policy, according to the record of the sentencing proceedings in D.D.’s case, no such exchange occurred.


author: PER CURIAM.

text:
    Ex parte Stanley Frieson WASHINGTON. (In re State of Alabama v. Stanley Frieson Washington).
    CR-02-0365.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Stanley Washington, pro se.
    William H. Pryor, Jr., atty. gen., and G. Ward Beeson III, asst. atty. gen., for ap-pellee.
   PER CURIAM.

The petitioner, Stanley Frieson Washington, an inmate at Holman Correctional Facility in Atmore, filed this petition for a writ of mandamus requesting that we direct Judge Alfred Bahakel to grant his request to proceed in forma pauperis without prepaying the filing fee on his postcon-viction petition filed pursuant to Rule 32, Ala.R.Crim.P. On October 11, 2002, Washington filed a Rule 32 petition in the Jefferson Circuit Court. The petition was accompanied by an affidavit of substantial hardship containing a request to waive the filing fee and to proceed in forma pauperis. Judge Bahakel denied the request to proceed in forma pauperis; this petition followed.

Washington argues that the trial court erred in denying his request to proceed in forma pauperis without considering his ability to pay the fifing fee.

The State has responded that we should deny this petition for a writ of mandamus because Washington failed to satisfy the requirements of Rule 21(a), Ala.R.App.P.; specifically, the State contends that Washington failed to furnish this Court with a copy of the in forma pauperis declaration filed in the circuit court or with a certificate of the warden or a correctional officer of Holman Correctional Facility showing the amount of money in Washington’s inmate account during the 12 months preceding the filing of his Rule 32 petition. The State cites Ex parte Melton, 837 So.2d 819 (Ala.2002), in support of its contention.

Effective August 1, 2002, Rule 32.6(a), Ala.R.Crim.P., was amended to state, in part:

“If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the ‘In Forma Pauperis Declaration’ at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in forma pauperis.”

(Emphasis added.) The emphasized portion quoted above was added to this rule by the August 1, 2002, amendment.

We agree with the State; this case is governed by the Supreme Court’s decision in Melton. In Melton, the petitioner filed a petition for a writ of mandamus after the circuit court denied his request to proceed in forma pauperis when filing his Rule 32 petition. The Supreme Court, denying relief, stated:

“[I]t is necessary that this Court be presented with some documentation showing the petitioner’s prison-account balance, certified by the appropriate prison official. No such documentation is attached to Melton’s petition. He has therefore failed to show that the trial court abused its discretion in denying his in forma pauperis request or that he has a clear legal right to the relief he seeks.”

Melton, 837 So.2d at 822.

Washington has not provided this Court with a certificate of the warden or a prison official of Holman Correctional Facility showing the balance of his inmate account for the 12 months preceding the filing of his Rule 32 petition. Washington has failed to meet his burden of establishing the prerequisites necessary for the issuance of a writ of mandamus.

This petition is due to be, and is hereby, denied.

PETITION DENIED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ., concur.

      . Apparently this case was never assigned a number in the circuit court because the circuit court denied Stanley Frieson Washington's request to proceed in forma pauperis and to waive the filing fee.

      . The circuit court did not state a reason for denying Washington’s in forma pauperis request.


text:
    Latonya Denise MILLER v. CITY OF FAIRHOPE.
    CR-02-0235.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.

      D. Robert Stankoski, Jr., Fairhope, for appellant.
    Marion Wynne, Jr., Fairhope, for appel-lee.
   COBB, Judge.

On October 16, 2002, Latonya Denise Miller was convicted of harassment, a violation of § 13A-ll-8(a), Ala.Code 1975. The trial court ordered Miller to serve 30 days in jail, but suspended the sentence and ordered that Miller remain on probation for 1 year. Miller moved for a judgment of acquittal at the close of the city attorney’s case-in-chief and at the close of all the evidence; both motions were denied. This appeal followed.

On appeal, Miller argues that her conviction should be overturned because the statements she made do not amount to “fighting words.” In response to Miller’s brief, the city attorney filed a letter with this Court stating that the City would not be filing a brief and that “the City of Fairhope agrees with the statement of facts and the statement of the case submitted by the appellant.”

According to Miller’s statement of facts, she called the victim a “bitch” as alleged in the complaint. The complaint states: “Latonya Denise Miller, did, with intent to harass, annoy or alarm Deborah Merritt, direct abuse or obscene language, to-wit: ‘You bitch, you got a red dress on like a damn devil. You’re just a bitch, bitch, bitch.’ ” (C. 2.) These are the only facts provided to this Court on appeal.

“What constitutes abusive or obscene language is dictated by the circumstances surrounding the utterance. R.I.T. v. State, 675 So.2d 97, 99 (Ala.Crim.App.1995). In B.E.S. v. State, 629 So.2d 761 (Ala.Crim.App.1993), this Court stated:
“ ‘In order to bring § 13A-11-8(a)(1)(b) within the range of constitutionally permitted legislation, we have held that the words “abusive or obscene language,” as used in this statute, are to be “ ‘interpreted narrowly to apply only to “fighting words.” ’ ” Robinson v. State, 615 So.2d 112, 113 (Ala.Cr.App.1992) (applying Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala.Cr.App.1984), and Mosley v. City of Auburn, 428 So.2d 165, 166 (Ala.Cr. App.1982), superseded on other grounds, Mason v. City of Vestavia Hills, 518 So.2d 221 (Ala.Cr.App.1987), wherein this Court had previously interpreted in the same manner the same words contained in § 13A-11-7(a)(3), the disorderly conduct statute). See also Shinault v. City of Huntsville, 579 So.2d 696, 699-700 (Ala.Cr.App.1991) (Bowen, J., concurring in result).’

629 So.2d at 763. In Robinson v. State, 615 So.2d 112 (Ala.Crim.App.1992), this Court stated:

“ ‘ “Fighting words” are “those words which have a likelihood of causing a violent response by the person to whom they are addressed. They are words that by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.” Skelton v. City of Birmingham, 342 So.2d 933, 936-37 (Ala.Crim.App.), remanded [on other grounds], 342 So.2d 937 (Ala.1976).’

615 So.2d at 113.

“In South v. City of Mountain Brook, 688 So.2d 292 (Ala.Crim.App.1996), this Court noted:

“ ‘ “ ‘Fighting words’ are ‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’ Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971). The utterance itself must ‘tend to incite an immediate breach of the peace.’ Chaplinsky v. New Hampshire, 315 U.S. [568,] 572, 62 S.Ct. [766,] 769, 86 L.Ed. 1031 [(1942)]. See also Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). ‘It is not enough that [the words] merely arouse anger or resentment,’ Skelton v. City of Birmingham, 342 So.2d 933, 937 (Ala.Cr.App.), remanded on other grounds, 342 So.2d 937 (Ala.1976), or that the words are deemed ‘a socially unacceptable mode of communication,’ State v. Authelet, 120 R.I. 42, 385 A.2d 642, 649 (R.I.1978). It is clear that the words must ‘by their very utterance provoke a swift physical retaliation and incite an immediate breach of the peace.’ Skelton v. City of Birmingham, 342 So.2d at 936-37.” ’
688 So.2d at 295 (quoting B.E.S. v. State, 629 So.2d 761, 764 (Ala.Crim.App.1993)).”

Owens v. State, 848 So.2d 279, 280-81 (Ala.Crim.App.2002).

Neither party has provided any information regarding the circumstances surrounding the statement, that is, whether it was privately or publicly uttered, whether it was screamed or whispered, whether it was accompanied by any threatening gestures, or whether it invoked any response from the victim. Therefore, based on the facts before us, the statement in question, as evaluated in a vacuum, while insulting and ““‘a socially unacceptable mode of communication,” ’ ” certainly was not “ ‘ “inherently likely to provoke violent reaction.” ’ ” Owens, supra (quoting Skelton v. City of Birmingham, 342 So.2d 933, 937 (Ala.Crim.App.1976)).

For the reasons stated above, the judgment of the municipal court is due to be reversed and judgment rendered in favor of Miller.

REVERSED AND JUDGMENT RENDERED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. SHAW, Judge, BASCHAB,

text:
    Leslie Howard DAVIS v. STATE of Alabama.
    CR-01-2211.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Elizabeth H. Huntley, Clanton, for appellant.
    William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   PER CURIAM.

On or about May 23, 2000, the appellant, Leslie Howard Davis, pled guilty to first-degree criminal mischief. The trial court sentenced him to serve a term of 4 years in prison, but split the sentence and ordered him to serve 14 months in prison followed by 36 months on supervised probation. It then postponed his term of incarceration for 12 months. On or about July 16, 2002, the appellant’s probation officer filed an “Officer’s Report on Delinquent Probationer.” After conducting a hearing, the circuit court revoked his probation. This appeal followed.

The appellant argues that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings. Rule 27.5(a)(3), Ala. R.Crim. P., provides that, at the initial appearance, the circuit court shall

“[a]dvise the probationer of his or her right to request counsel and appoint counsel to represent an indigent probationer if the requirements of Rule 27.6(b) are met.”

Rule 27.6(b), Ala. R.Crim. P., provides:

“The probationer is entitled to be present at the hearing and to be represented by counsel. Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a col-orable claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

Rule 27.6(e), Ala. R.Crim. P., provides, in pertinent part:

“Before accepting an admission by a probationer that the probationer has violated a condition or regulation of probation or an instruction issued by the probation officer, the court shall address the probationer personally and shall determine that the probationer understands the following:
“(2) The right under section (b) to be represented by counsel....”

In this case, the record does not indicate that the circuit court advised the appellant of his right to request counsel during the revocation proceedings. Citing Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000), the State contends that this error was harmless because the appellant admitted he had violated the terms and conditions of his probation and because he did not present any evidence to justify or mitigate the violation. In Evans, we stated:

“On appeal, Evans argues that he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding. ...
“We note initially that there is no automatic right to counsel in a probation revocation proceeding, and the right to counsel wül be decided by the [circuit] court on a case-by-case basis. Law [v. State, 778 So.2d 249 (Ala.Crim.App.2000)].
“ ‘ “[A] [circuit] court’s failure to inform an accused of his right to request counsel is not necessarily fatal to its case. ‘Unless [the probationer’s] revocation proceeding was one wherein the actual appointment of counsel was necessary to satisfy applicable due process requirements of fundamental fairness, then he would not have been entitled to have his request for counsel honored and the mere failure to have informed him of the right to make such a request could not have harmed him.’ ” ’
“Law, 778 So.2d at 251 (quoting Kitchens v. State, 234 Ga.App. 785, 787, 508 S.E.2d 176,179 (Ga.App.1998)).
“At the revocation hearing in the present case, Evans admitted that he had violated the terms of his probation. In addition, there is nothing in the record to support a finding that there were substantial reasons justifying or mitigating the violation. Evans, therefore, has failed to show that he was materially harmed by the absence of counsel. The failure to inform Evans that he could be represented by counsel was not reversible error.”

794 So.2d at 1235-36.

In this case, the delinquency report alleged that the appellant committed the new offenses of driving under the influence (“DUI”), resisting arrest, and possessing an open container of beer. In its written revocation order, the circuit court stated:

“Said revocation is based upon the following acts which occurred subsequent to the order of probation. (1) Defendant admits he obtained a new offense — Driving under the influence of alcohol, a violation of a condition of his probation.”

(C.R. 10.) However, during the revocation hearing, the appellant admitted only that he had been drinking while he was on probation. Therefore, the appellant did not admit that he had committed the new offense of DUI. Furthermore, during the revocation hearing, the State did not present any evidence regarding the violations alleged in the delinquency report.

The State argues that “[prohibition of drinking alcoholic beverages is a permissible condition of probation, the violation of which can properly sustain a probation revocation.” (State’s brief at pp. 5-6.) At the conclusion of the revocation hearing, the circuit court stated:

“Pursuant to your admission to drinking while you were on probation, the Court is going to revoke your probation previously granted.”

(R. 5.) However, the delinquency report did not charge the appellant with violation of his probation by merely drinking while on probation.

“The minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation.... ”

Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998). Thus, if the appellant did not receive written notice that he was charged with violating his probation by drinking while on probation, the circuit court could not properly revoke his probation on that ground.

Based on the record before us, we cannot conclude that the appellant did not have a colorable claim that he did not commit the alleged violations or that he did not have substantial reasons to justify or mitigate the violations. Therefore, we cannot say that not informing him of his right to request counsel to represent him during the revocation proceedings was harmless error. Accordingly, we must reverse the circuit court’s order revoking the appellant’s probation and remand this case to the circuit court for a new revocation hearing. In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala. R.Crim. P.

REVERSED AND REMANDED.

SHAW, J., concurs specially, with opinion, which McMILLAN, P.J., and COBB, J., join; BASCHAB, J., dissents, with opinion, which WISE, J., joins.

SHAW, Judge,

concurring specially.

I concur to reverse the trial court’s judgment for the reasons stated in the main opinion. However, I write specially to address the dissenting opinion. I believe that the basic premise (the existence of fundamental principles of due process) on which this Court relied in deciding Law v. State, 778 So.2d 249 (Ala.Crim.App.2000), which was grounded on the same basic premise on which this Court relied in deciding Coon v. State, 675 So.2d 94 (Ala.Crim.App.1995), is sound. Because I believe that fundamental fairness requires that we address the merits of whether a probationer was properly advised of his or her right to request counsel under Rule 27.5(a)(3), Ala.R.Crim.P., even though raised for the first time on appeal, I do not agree that Law should be overruled.

In Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996), quoted extensively in the dissenting opinion, this Court recognized that one of the underlying rationales for the two long-standing exceptions to the general rule of preservation was the difficulty in raising an objection in the trial court to the adequacy of the written order of revocation and to the failure to hold a probation-revocation hearing. I believe there are similar difficulties with respect to a trial court’s failure to advise a probationer of his or her right to request counsel. If a probationer does not know that he or she has the right to request counsel because the trial court never informed the probationer of that right, he or she cannot possibly know to object to the trial court’s failure to advise the probationer of the right to request counsel. The fact that “situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings,” Law, 778 So.2d at 250 (footnote omitted), coupled with the inherent inconsistency in requiring a probationer to object to the trial court’s failure to advise him or her of the right to request counsel when the probationer is not aware that he or she has such a right, requires that this Court address the merits of the appellant’s claim, even though it is being raised for the first time on appeal.

McMILLAN, P.J., and COBB, J., concur.

BASCHAB,

Judge, dissenting.

The appellant argues, for the first time on appeal, that the circuit court erred by not advising him of his right to request counsel to represent him during the revocation proceedings. For the reasons set forth below, I would conclude that his argument is not properly before this court and would affirm the circuit court’s judgment.

We have previously held that arguments that a circuit court did not comply with the requirements of Rules 27.5 and 27.6, Ala. R.Crim. P., must first be presented to the circuit court or they are waived on appeal. For example, in Puckett v. State, 680 So.2d 980 (Ala.Crim.App.1996), Puckett argued that the circuit court did not comply with the due process requirements set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27.5(a)(1), Ala. R.Crim. P., when it revoked his probation. In addressing that argument, this court held:

“The appellant failed to preserve this issue for our review, because he did not present this issue to the trial court.
“In Morrissey, supra, the United States Supreme Court set forth the minimum constitutional requirements that must be met before parole may be revoked:
“ ‘(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.’
“Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. The United States Supreme Court extended these rights to probationers in probation revocation proceedings in Gagnon, supra, and the Alabama Supreme Court applied these principles in Armstrong, supra. The procedures for probation revocation proceedings set out in Rule 27.5 and Rule 27.6, Ala. R.Crim. P., are intended to comply with the due process requirements of Morris-sey and Gagnon. The present case presents us with the question of whether claims arising out of these due process requirements can be waived.
“In Taylor v. State, 600 So.2d 1080 (Ala.Cr.App.1992), the appellant alleged that the trial court, in revoking his probation, had failed to comply with the procedures in Rule 27.5 and Rule 27.6, Ala. R.Crim. P. This court stated:
“ ‘The appellant, however, failed to present any of these issues [concerning noncompliance with Rule 27.5 and 27.6] to the trial court. We find no cases other than Ex parte Helton, 578 So.2d 1379 (Ala.1990), and Story v. State, 572 So.2d 510 (Ala.Cr.App.1990), which stand for the proposition that the trial court’s compliance with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Rules 27.5 and 27.6 is not waivable; therefore, the general rules regarding preservation should apply to rights granted to a probationer by Armstrong and Rule 27.5 and 27.6. “It is for the trial court ... to consider and correct, in the first instance, any error which may have been committed or any deficiency in the proceedings.” Willis v. State, 500 So.2d 1324 (Ala.Cr.App.1986). Even constitutional issues may be waived on appeal if not presented to the trial court. Crosslin v. State, 540 So.2d 98 (Ala.Cr.App.1988); Cagle v. State, 504 So.2d 1225 (Ala.Cr.App.1987); Andersen v. State, 418 So.2d 967 (Ala.Cr.App.1982); Moore v. State, 415 So.2d 1210 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982). Therefore, we hold that because the appellant failed to present the foregoing issues to the trial court, they are procedurally barred. Stanley v. State, 579 So.2d 19, 20 (Ala.Cr.App.1990) (failure to object to trial court’s taking notice of probation contract in court file waived issue on appeal); Maul v. State, 531 So.2d 35, 36 (Ala.Cr.App.1987) (“matters not objected to are not preserved for review”); Salter v. State, 470 So.2d 1360, 1362 (Ala.Cr.App.1985) (failure to object to certified copy of conviction at probation revocation hearing waived issue on appeal); cf. Ex parte Brown, 540 So.2d 740 (Ala.1989) (trial court’s failure to comply with A.R. Juv. P. 24 waived by failure to object).’
600 So.2d at 1081 (footnote omitted).
“One of the specific allegations in Taylor was that Taylor was not furnished with a written copy of the alleged probation violation before the hearing; the appellant makes the same allegation in this case. See Rule 27.5(a)(1) (embodying this requirement of Morrissey and Gagnon). Although Taylor’s claim was constitutional, we nonetheless found in Taylor that it was subject to the general rules regarding preservation and, therefore, held that Taylor’s claim was procedurally barred, because it was raised for the first time on appeal.
“This court noted in a footnote in Taylor:
“While Ex parte Helton [578 So.2d 1379 (Ala.1990)] implies that the requirement that the trial court state the reasons and the evidence relied upon for revocation is not waivable because of the lack of an objection, the Alabama Supreme Court neither specifically addressed preservation, nor extended its holding to other Armstrong requirements, which are now embodied in Rules 27.5 and 27.6. In Story [v. State, 572 So.2d 510 (Ala.Cr.App.1990)], this court held that the appellant did not waive his right to a revocation hearing by failing to object.’
600 So.2d at 1081 n. 1. Since our decision in Taylor, this court has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation (see Rule 27.6(f), Ala. R.Crim. P.), as was the situation in Ex parte Helton, 578 So.2d 1379 (Ala.1990), and (2) the requirement that a revocation hearing actually be held (see Rule 27.6(a), Ala. R.Crim. P.), as was the situation in Story v. State, 572 So.2d 510 (Ala.Cr.App.1990). We have consistently held that other claims — even those raising constitutional issues — are waivable. See, e.g., Henry v. State, 675 So.2d 44, 45 (Ala.Cr.App.1994); Harrelson v. State, 651 So.2d 1151, 1152 (Ala.Cr.App.1994); Woodberry v. State, 625 So.2d 1159, 1162 (Ala.Cr.App.1998); and Miller v. State, 611 So.2d 434, 435 (Ala.Cr.App.1992).
“Justice Maddox, in his dissent in Ex parte Helton, stated that the majority’s determination in Helton that it was unnecessary for Helton to object in the trial court in order to preserve for appellate review the alleged inadequacy of the trial court’s written order of revocation was apparently based on the majority’s agreement with Helton’s argument that he could not be required to object in the trial court to the inadequacy of the court’s written revocation order when that order was not entered until after his revocation hearing. See Ex parte Helton, 578 So.2d at 1380 (Maddox, J., dissenting). Presumably, the impediment to raising an objection to an inadequate written revocation order in the trial court is further enlarged by the fact that the Alabama Rules of Criminal Procedure contain no specific provision for post-judgment motions in a probation revocation proceeding (although Justice Maddox indicated in his dissent in Helton that he believed a party could avail himself of Temp. Ala. R.Crim. P. 13 — now Rule 24, Ala. R.Crim. P. — to file a post-hearing motion objecting to an allegedly inadequate written order of revocation).
“This court’s holding in Story that a probationer is not precluded from raising for the first time on appeal the claim that probation was improperly revoked without a revocation hearing is based on the principle that a hearing is mandatory and confers jurisdiction on the trial court, and that, therefore, an order of revocation entered without a hearing is void and may be attacked at any time. See Story, 572 So.2d at 510. Moreover, the difficulty of raising an objection for the record where one’s probation has been revoked without a hearing is obvious. However, the impediments to a defendant’s raising, in the trial court, an objection to the inadequacy of a written order of revocation or to the trial court’s failure to hold a revocation hear ing simply do not present themselves in the case of the other due process requirements of Morrissey and Gagnon or Rule 27.5 and Rule 27.6, Ala. R.Crim. P., and the trial court’s or the state’s alleged failure to comply with these other due process requirements may readily be objected to before or during the course of a revocation hearing.
“The numerous recent cases where this court has made an exception to the general rules of preservation and remanded a case to the trial court when the issue of noncompliance with the requirements of Morrissey and Gagnon or Rule 27.5 and Rule 27.6 was raised for the first time on appeal have been limited to instances involving inadequate written orders of revocation. See, e.g., Wilson v. State, 659 So.2d 970 (Ala.Cr.App.1994); T.H.B. v. State, 649 So.2d 1323 (Ala.Cr.App.1994).”

Puckett, 680 So.2d at 982-84 (emphasis added). See also McDaniel v. State, 773 So.2d 1055 (Ala.Crim.App.2000) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Guilford v. State, 748 So.2d 229 (Ala.Crim.App.1999) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Colbert v. State, 736 So.2d 682 (Ala.Crim.App.1998) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.); Frith v. State, 729 So.2d 352 (Ala.Crim.App.1998) (holding that a claim that the circuit court did not comply with the requirements of Rule 27.6(c), Ala. R.Crim. P., must first be presented to the circuit court); Trice v. State, 707 So.2d 294, 297 n. 3 (Ala.Crim.App.1997) (holding that a claim that the circuit court did not advise a probationer of the rights set forth in Rule 27.6(c), Ala. R.Crim. P., will not be reviewed on appeal absent an indication in the record that that issue has been preserved for appeal); Davis v. State, 689 So.2d 225, 226 (Ala.Crim.App.1996) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.); Henry v. State, 675 So.2d 44 (Ala.Crim.App.1994) (noting that the general rules of preservation apply to the rights afforded to a probationer by Armstrong and Rules 27.5 and 27.6, Ala. R.Crim. P.).

However, in Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000), Law argued, for the first time on appeal, that the circuit court “erred by failing to advise him of his right to request an attorney during the probation revocation proceeding.” Nevertheless, this court addressed the argument, explaining:

“In Coon v. State, 675 So.2d 94 (Ala.Cr.App.1995), the appellant contended for the first time on appeal that the trial court erred in allowing him to represent himself without first holding a hearing to determine if he had voluntarily relinquished his right to counsel in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This Court, recognizing that ‘in certain cases in which fundamental fairness — the touchstone of due process [requires] that the State provide at its expense counsel for indigent probationers or parolees,’ addressed the merits of the issue. 675 So.2d at 96. We conclude, as we did in Coon, that fundamental fairness mandates that we address the merits of Law’s contention that he was not informed of his right to counsel. As the United States Supreme Court noted in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings. Therefore, we address the merits of Law’s contention that he was not informed of his right to counsel.”

Law, 778 So.2d at 250 (footnote omitted).

However, this court’s characterization in Law of the holding in Coon was erroneous. In Coon, contrary to the assertion in Law, this court did not address Coon’s argument because of a “recognition] that ‘in certain eases ... fundamental fairness— the touchstone of due process [requires] that the State provide at its expense counsel for indigent probationers or parolees.’ ” 778 So.2d at 250. Rather, in that case, Coon, who had represented himself during the probation revocation proceedings, argued, for the first time on appeal, that “the [circuit] court erred in allowing him to represent himself without first holding a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), to determine if he had [voluntarily] relinquished his right to counsel.” Coon, 675 So.2d at 95. That argument required us to determine whether Coon had a right to be represented by counsel during the revocation proceedings and, if so, whether he knowingly and voluntarily waived that right. Accordingly, we quoted at length a discussion about the right to counsel in probation revocation proceedings from Gagnon v. Scarpelli, including the statement that “there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.” 411 U.S. at 790, 93 S.Ct. at 1763. Therefore, the statement in Law that “[w]e conclude, as we did in Coon, that fundamental fairness mandates that we address the merits of Law’s contention that he was not informed on his right to counsel” was apparently based on a misreading of Coon.

Furthermore, in Law, we also cited Gagnon v. Scarpelli for the proposition that

“situations exist in which a probationer, if not represented by counsel, may not receive the protections guaranteed by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), in probation revocation proceedings.”

Law, 778 So.2d at 250 (footnote omitted). However, those considerations are not implicated in a case, like the present case, in which an appellant argues only that the circuit court did not advise him of his right to request counsel. Instead, such concerns are better addressed in cases in which the appellant argues that he actually had a right to be represented by counsel and that he did not knowingly and voluntarily waive that right.

Finally, this court’s treatment of this issue in subsequent cases has not always been consistent with Law. In Evans v. State, 794 So.2d 1234, 1235-36 (Ala.Crim.App.2000), we addressed Evans’ claim that “he was denied the assistance of counsel at his probation revocation hearing, because he says, he was not informed that he could be represented by counsel at that proceeding,” even though he had raised that claim for the first time on appeal. (Emphasis added.) However, we further held that his argument “that he was denied due process rights when he was not informed of his right to request appointed counsel ” was not preserved because he had raised it for the first time on appeal. Evans, 794 So.2d at 1236 (emphasis added).

For these reasons, I would hold that a claim that the circuit court did not advise a probationer of his right to request counsel during a revocation proceeding must first be presented to the circuit court or it is waived on appeal. This court’s holding in Law was an ill-advised departure from well-established caselaw that the general rules of preservation apply to probation revocation proceedings and to the rights enumerated in Rules 27.5 and 27.6, Ala. R.Crim. P. Therefore, I would expressly overrule Law and any prior holdings to the contrary, see, e.g., Evans v. State, 794 So.2d 1234 (Ala.Crim.App.2000), and affirm the circuit court’s judgment.

WISE, J., concurs.

      . If the circuit court revoked the appellant’s probation solely on the ground that he was arrested for DUI, we note that "[a] ‘mere arrest' or the filing of charges is an insuffl-cient basis for revoking one's probation.” Allen v. State, 644 So.2d 45, 45-46 (Ala.Crim.App.1994).


text:
    George JACKSON, Appellant, v. Greg SWEAT d/b/a Greg’s Video, Appellee.
    No. 1D02-1773.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    James V. Cook, Tallahassee, for Appellant.
    Mary K. Simpson and Elizabeth G. Demme of Huey, Guilday, Tucker, Schwartz, and Williams, P.A., Tallahassee, for Appellee.
   PER CURIAM.

We affirm the final summary judgment entered in favor of appellee in this action for negligent infliction of emotional distress. See Rivers v. Grimsley Oil Co., 842 So.2d 975, 975-76 (Fla. 2d DCA 2003) (affirming summary judgment in favor of defendant and finding that plaintiff could not maintain action for negligent infliction of emotional distress against employer for a robbery that occurred at convenience store work place where robber did not physically harm plaintiff); Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177, 1178 (Fla. 3d DCA 1997) (rejecting argument of plaintiffs that “the mere fact that the robber touched them when he ‘pushed’ them into the bathroom [in their hotel room] is sufficient impact to maintain their negligent infliction of emotional distress claim” against the hotel); Jordan v. Equity Props. & Dev. Co., 661 So.2d 1307, 1308 (Fla. 3d DCA 1995) (affirming order granting summary judgment in favor of mall owner and rejecting argument of plaintiff that impact rule did not bar recovery of damages for negligent infliction of emotional distress from encounter with gunman in mall, during which appellant hit gunman in chest and face with a deposit bag and stumbled backward). Cf. Rowell v. Holt, 850 So.2d 474 (Fla.2003) (affirming vitality of impact rule in Florida, but declining to apply rule to bar recovery because of special professional duty created by attorney-client relationship between plaintiff and defendant and fact of extended pretrial confinement based upon defendant’s professional negligence).

AFFIRMED.

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    Vincent CENTAUR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1542.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2003.
    Rehearing Denied Oct. 10, 2003.
    Vincent Centaur, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

KAHN, PADOVANO and HAWKES, JJ., concur.


text:
    Torrence Windell ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3147.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 16, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 5, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

WEBSTER, DAVIS and BROWNING, JJ., Concur.


text:
    Gerald DILLARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-164.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The defendant, Gerald Dillard, appeals from an order revoking his probation. We affirm the order revoking his probation but remand for correction of the written order.

As the State properly concedes, the written order revoking probation must conform to the trial court’s oral pronouncements. See Leiva v. State, 814 So.2d 539 (Fla. 3d DCA 2002); Sellers v. State, 793 So.2d 1148 (Fla. 3d DCA 2001). Therefore, this cause is remanded for entry of a corrected order striking the trial court’s finding that the defendant violated his probation by failing four drug tests.

Affirmed as corrected.


text:
    Ronald Andrew JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3624.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Rehearing Denied Oct. 16, 2003.
    Ronald Andrew Jackson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Ronald Andrew Jackson seeks relief from this court, alleging that his appellate counsel was ineffective in failing to argue on direct appeal that he was entitled to be resentenced under the rationale of Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002) and its progeny. However, the initial brief in this cause was filed more than twelve months before issuance of the opinion in Mondesir and we are unable to conclude that appellate counsel was ineffective in these circumstances. See Thompson v. Wade, 603 So.2d 28 (Fla. 1st DCA 1992) (effectiveness of appellate counsel must be measured by the law in effect at the time of the filing of the initial brief).

We therefore deny the petition alleging ineffective assistance of appellate counsel, but do so without prejudice to Jackson’s right to raise a claim in the trial court based on Mondesir through a motion to correct sentence or a motion for postcon-viction relief, as may be appropriate.

PETITION DENIED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


author: SHAHOOD, J.

text:
    Gina VINCENT, Appellant, v. Marc A. KAUFMAN, M.D., Appellee.
    No. 4D02-777.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Rehearing Denied Oct. 27, 2003.

      Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Frankel & Associates, P.A., Pompano Beach, for appellant.
    William T. Viergever of Sonneborn Rut-ter Cooney & Klingensmith, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

The trial court dismissed appellant’s, Gina Vincent, medical malpractice action against Dr. Kaufman based on her failure to comply with statutory presuit discovery requirements. We reverse based on Kukral v. Mekras, 679 So.2d 278 (Fla.1996).

Vincent, a 34-year old female, was a patient of Dr. Kaufman, an OB/GYN, from July 1997 to June 1999. She had a long history of pelvic pain, endometriosis, pelvic adhesions and a ruptured ovarian cyst which resulted in the removal of her right ovary. Due to left ovarian cysts, Dr. Kaufman, in November 1998, performed a laparoscopy which resulted in the removal of Vincent’s left ovary and fallopian tube. Vincent maintained that this procedure caused her to go into surgical menopause and that Dr. Kaufman deviated from acceptable medical standards by failing to obtain the necessary consent to the procedure and by failing to fully disclose the nature and extent of the proposed surgery or explore other avenues of treatment.

On February 2, 2001, Vincent gave notice of her intent to file a medical malpractice action against Dr. Kaufman. This notice was accompanied by an affidavit by her medical expert, internist Dr. Mar-chione. On February 14, 2001, Mary Jo Davi, the medical malpractice insurer’s claims adjuster, sent Vincent a letter indicating receipt of the notice of intent and requesting certain presuit discovery in order to evaluate her claim. On May 2, 2001, Davi sent Vincent’s counsel, Ken Frankel, a letter rejecting her claim. Davi stated that Vincent had not complied with the disclosure requirements during the presuit period. Davi further stated that the matter was investigated and reviewed by an expert who rendered an opinion of no negligence. On May 7, 2001, Vincent hand-delivered her response to the presuit discovery requests, including medical records requested. On June 27, 2001, Vincent filed her medical malpractice action.

Dr. Kaufman moved to dismiss the complaint on grounds that Vincent failed to comply with the medical malpractice requirements under Chapter 766 by not responding to his request for production during the 90-day presuit investigation period.

By the time of the hearing on the motion to dismiss, the statute of limitations had run, but it had not run when discovery was furnished on May 7, 2001. Frankel claimed that there were some difficulties in accumulating all of Vincent’s medical records from various locations and that prior to the expiration of the 90-day period, his office had communications with Mary Jo Davi in which Davi was told that they might be a little late in providing all of the information. Davi allegedly told Frankel that was not a problem. As such, Vincent’s discovery response was delivered a few days late.

Because the alleged agreement with the claims examiner was not in writing, the court agreed to defer ruling on the motion to dismiss and hold an evidentiary hearing on the limited issue of whether there was in fact an agreement to extend the presuit investigation period.

At the evidentiary hearing, Davi testified that she did not speak with anyone from Frankel’s office and did not agree to extend the deadline for the presuit discovery. After hearing argument, the court dismissed Vincent’s case with prejudice on the grounds that dismissal was mandatory under section 766.205, Florida Statutes, if there was a failure to comply with presuit requirements.

Section 766.205, Florida Statutes (2001), provides:

(1) Upon the completion of presuit investigation pursuant to s. 766.203, which investigation has resulted in the mailing of a notice of intent to initiate litigation in accordance with s. 766.106, corroborated by medical expert opinion that there exist reasonable grounds for a claim of negligent injury, each party shall provide to the other party reasonable access to information within its possession or control in order to facilitate evaluation of the claim.
(2) Such access shall be provided without formal discovery, pursuant to s. 766.106, and failure to so provide shall be grounds for dismissal of any applicable claim or defense ultimately asserted.

Section 766.106(3)(a) provides that no medical malpractice action may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90 day period, the prospective defendant’s insurer or self-insurer shall conduct a review to determine the liability of the defendant.

The standard for reviewing a dismissal for failure to comply with presuit procedures in a medical malpractice action is abuse of discretion. See Popps v. Foltz, 806 So.2d 583, 584 (Fla. 4th DCA 2002).

Dr. Kaufman argues that the failure to provide discovery within the 90-day period warrants dismissal of the subsequently filed complaint. We disagree based on Kukral v. Mekras, 679 So.2d 278 (Fla.1996).

In Kukral, the plaintiffs were in partial, but not full compliance with presuit procedures. Plaintiffs’ notice of intent had not been accompanied by a verified ‘written medical expert opinion. After denial of the claim by defendants, the plaintiffs sent an unverified medical expert opinion, and then subsequent thereto, a verification of that opinion. The trial court dismissed plaintiffs’ claim, the effect of which was to permanently bar plaintiffs’ claim because the statute of limitations had run. The Third District affirmed; however, the Florida Supreme Court reversed, holding that, although the presuit screening statute must be enforced, a litigant’s constitutional right of access to the courts must also be preserved. See id. at 284.

The Kukral court explained that Chapter 766 sets out a complex presuit investigation procedure that both the claimant and the defendant must follow before a medical negligence claim may be brought in court. See id. at 280. A claimant must first determine whether reasonable grounds exist to believe that someone acted negligently in the claimant’s care or treatment and that this negligence caused the claimant’s injury. See id. Upon receipt of the notice of intent, the defendant has 90 days to conduct its own presuit investigation. During this time, the claimant may not file suit. See id. Before the defendant may deny the claimant’s reasonable grounds for finding medical negligence, the defendant must provide the claimant with a verified written medical expert opinion corroborating a lack of reasonable grounds to show a negligent injury. See id. at 280-81. Informal presuit discovery takes places after the notice of intent is issued and the unreasonable failure of any party to comply with informal discovery may justify dismissal of that party’s claim. See id. at 281.

The Kukral court specifically rejected the lower court’s holding that the plaintiffs’ initial failure to strictly comply with the presuit requirements of the statute prior to filing their notice of intent to sue was fatal to their claim, regardless of any subsequent compliance with the statute’s requirements prior to the expiration of the limitations period. See id. at 282. In fact, the high court held to the contrary, that the failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiffs claim so long as compliance is accomplished within the two-year limitations period provided for filing suit. See id. at 283. In that case, all of the parties had engaged in pretrial discovery and had a full and fair opportunity to investigate the claim prior to the initiation of the suit and within the statute of limitations period. The court held by the time presuit discovery was concluded, all requirements of the statute had been met and any potential prejudice to the defendants of having to defend against a frivolous suit had been eliminated. See id. at 284. This determination was in keeping with its conclusion that the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits. See id.

In De La Torre v. Orta, 785 So.2d 558 (Fla. 3d DCA), review denied, 805 So.2d 808 (Fla.2001), the defendant physician did not respond to the presuit request for records or a notice of intent because he incorrectly assumed that the claim was barred by the statute of limitations. The trial court struck his pleadings and the Third District reversed based on Kukral. The court held that the striking of the defendant’s defenses for failure to timely respond to presuit discovery requests was too harsh a remedy in the absence of prejudice to the plaintiff. See id. at 556. See also Popps, 806 So.2d at 585 (under Kukral and De La Torre, dismissal of medical malpractice action for failing to comply with statutory presuit procedures was not warranted; although plaintiff did not comply with presuit procedures after his first notice of intent, he fully complied after his second notice of intent).

In this case, the dismissal of Vincent’s medical malpractice action due to her failure to comply with presuit discovery requests within the 90-day period, the effect of which permanently barred her claim since the statute of limitations had since run, was not warranted where there was no prejudice to the defendant doctor.

While Vincent did not provide the requested documents within the 90-day period, she provided the requested documents five days later. It is quite apparent from the record that Dr. Kaufman’s expert reviewed most of the same documents utilized by Vincent’s expert in fashioning his opinion letter rejecting her claim of liability. Further, Vincent’s compliance with the presuit discovery request took place prior to the running of the statute of limitations and prior to her filing suit. Thus, compliance was accomplished within the limitations period for filing suit. In keeping with Kukral, all of the requirements of the statute had been met and any potential prejudice to the defendants of having to defend against a frivolous suit had been eliminated.

REVERSED AND REMANDED WITH DIRECTIONS THAT APPELLANT’S AMENDED COMPLAINT BE REINSTATED.

FARMER, C.J., and KLEIN, J., concur.


author: MONACO, J.

text:
    Bobby Jack NOOJIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2277.
    District Court of Appeal of Florida, Fifth District.
    Sept. 19, 2003.
    Bobby Jack Noojin, Jr., Bristol, pro se.
    No appearance for Appellee.
   MONACO, J.

Bobby Jack Noojin, Jr., appeals the denial of his Rule 3.850 motion in which he asserts claims concerning the lack of effective assistance of his trial counsel and the involuntariness of his plea. Mr. Noojin is not a stranger to this court. In addition to his direct appeal and a prior 3.850 motion, we have also considered his two petitions for habeas corpus and his petition for mandamus.

His current appeal is successive and improper. Accordingly, we warn Mr. Noojin against filing additional successive pleadings in this court regarding his conviction. See Polk v. State, 820 So.2d 456 (Fla. 5th DCA 2002). His attempt to do so may result in an order instructing the Clerk not to accept further pro se pleadings regarding this case unless signed by an attorney licensed to practice law in Florida.

AFFIRMED.

SHARP, W. and PETERSON, JJ., concur.

      . Case Nos. 99-1663, 00-2205, 02-2759, 02-2414, 03-1499.


author: GROSS, J.

text:
    Glenn JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2799.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.

      Glenn Johnson, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Glenn Johnson seeks review of a trial court’s order entered after an evidentiary hearing on three claims presented in his timely filed rule 3.850 motion. We affirm and write concerning Johnson’s third point.

Appellant was charged with strong arm robbery, a second degree felony. See § 812.13(2)(c), Fla. Stat. (1997). He complains that his lawyer did not request a charge on the lesser included offense of resisting a merchant, section 812.015(6), Florida Statutes (1997), a first degree misdemeanor. The jury was instructed on the lesser included offenses of battery, a first degree misdemeanor, and petit theft, a second degree misdemeanor.

Appellant was convicted of strong arm robbery, which occurred at a Wal-Mart. Paul Beilin, the store manager, testified that he saw a male heading to the front door with some fishing poles. Beilin did not see the required pink security sticker. He testified that he recognized appellant. When he was about five feet away from appellant, Beilin called several times for him to stop and drop the poles.

Soon after, appellant was in the parking lot, where he was observed by the cart collector, Alberto Santiago. A struggle between the two ensued; appellant bit Santiago twice, first in the neck and then the armpit.

At the hearing on the post-conviction relief motion, trial counsel acknowledged that he had not thought of the offense of resisting a merchant as a lesser included offense, though he knew it could be useful depending on the circumstances. Nonetheless, counsel testified that inclusion of that offense as a lesser included offense would have been contrary to Johnson’s defense — that he did not know that Santiago was a merchant.

After the post-conviction relief hearing, the trial court found no prejudice under State v. Abreau, 363 So.2d 1063 (Fla.1978). Abreau holds that the failure to charge on lesser included offenses may be harmless error where the instructions given provide the jury with “a fair opportunity to exercise its inherent ‘pardon’ power.” Id. at 1064. Here, the trial judge found that the error was harmless, since the jury had a fair opportunity to exercise its pardon power by convicting appellant of battery, a first degree misdemeanor, as is resisting a mérehant. The biting of Santiago would have supported a conviction under either charge.

Resisting a merchant is a category two lesser included offense of robbery. See Fla. Std. Jury Instr. (Crim.), Schedule of Lesser Included Offenses. This court has held that the failure to request such a lesser included offense may state a claim for post-conviction relief. See Willis v. State, 840 So.2d 1135, 1136 (Fla. 4th DCA 2003); Smith v. State, 807 So.2d 755, 756 (Fla. 4th DCA 2002); Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000).

We find no legal error in the trial court’s determination that the failure to charge resisting a merchant amounted to harmless error under Abreau. If the harmless error test under Abreau has been satisfied, then it follows that there can be no prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This is because of the fundamental difference between the harmless error test that is applied on direct appeal and the prejudice prong of Strickland. As the first district has explained:

Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction. Thus, as Goodwin [v. State, 751 So.2d 537, 546 (Fla.1999)] explains, the test for prejudice on direct appeal is the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which trial court error will result in reversal unless the prosecution can prove “beyond a reasonable doubt” that the error did not contribute to the verdict obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding.
It is entirely reasonable that the Chapman test is not satisfied where a trial court has improperly failed to honor a defense request for an instruction on a lesser included offense. Because we know that jury pardons are occasionally awarded by aberrant juries, it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon. And if a trial court’s refusal to grant a defense request for an instruction as to an applicable lesser included offense were considered harmless upon a finding of guilt as to the greater offense, there would be no remedy for a trial court’s failure to comply with the law relating to the giving of instructions for lesser included offenses. A finding of prejudice in the direct appeal context is therefore appropriate both as a proper application of the Chapman test and as a necessary enforcement mechanism. But these considerations do not apply in the context of a collateral proceeding in which ineffective assistance of counsel is claimed for failure to request an instruction as to a lesser included offense. In this content [sic], there has been no trial court error. And, although it is “conceivable” that a jury in a given case might decline to follow the law and grant a jury pardon, this does not seem to us a reasonable probability. We recognize that a finding of reasonable probability under Strickland does not require a finding that it is more likely than not that the deficient performance of counsel affected the outcome of the proceeding. It requires only a finding that the deficient performance put the whole case in such a different light as to undermine the court’s confidence in the outcome of the proceeding. But we have difficulty accepting the proposition that there is even a substantial possibility that a jury which has found every element of an offense proved beyond a reasonable doubt, would have, given the opportunity, ignored its own findings of fact and the trial court’s instructions on the law and found a defendant guilty of only a lesser included offense.

Sanders v. State, 847 So.2d 504, 506-07 (Fla. 1st DCA 2003) (emphasis in original) (additional citations omitted) (en banc) (quoting Hill v. State, 788 So.2d 315, 318-19 (Fla. 1st DCA 2001), review denied, 807 So.2d 655 (Fla.2002)).

Because the trial court found that the failure to give the resisting a merchant instruction was harmless, in light of the instructions given, that finding precludes a finding that the failure to instruct could satisfy the prejudice prong of Strickland.

STEVENSON and HAZOURI, JJ., concur.

      . We acknowledge that we have certified conflict with Sanders. See Willis, 840 So.2d at 1137. In Willis, Smith, and Peffley, this court remanded summary denials, directing that the trial courts either conduct evidentiary hearings or provide further attachment to refute the defendants’ claim of counsels’ deficiency and prejudice associated with the failure to request a necessarily lesser included offense. Sanders declined to do so. This case differs as appellant had the benefit of an evidentiary hearing, and as a result, this court has a complete record allowing thorough review of the trial court’s conclusion that the error was harmless.


author: KAHN, J.

text:
    Stanley COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4301.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2003.

      Appellant Stanley Collins, pro se, De-Funiak Springs.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant Stanley Collins filed a rule 3.850 motion for postconviction relief asserting nine grounds for relief based upon ineffective assistance of counsel. The trial court denied relief on appellant’s first claim after an evidentiary hearing and summarily denied relief on the remaining eight claims. Collins brought this timely appeal and filed a brief challenging the summary denial of three claims. Collins does not seek reversal on the claim for which the evidentiary hearing was held, nor on the remainder of the summarily denied claims. Of the three claims appellant preserved, we find two facially insufficient and affirm the trial court’s summary denial of those without discussion.

In the remaining claim, Collins asserts that his trial counsel rendered ineffective assistance by unnecessarily eliciting damaging testimony from a State’s witness on cross-examination. At trial, appellant faced a charge of robbery of a gas station with a deadly weapon. In his rule 3.850 motion, he alleged that neither of the two clerks working at the gas station was able to identify him as the robber. He further alleged that only the back of the robber’s head was shown in the gas station surveillance video. The error appellant complains of occurred during counsel’s cross-examination of the arresting officer, a Jacksonville detective. According to the sworn motion, the detective did not identify the robber on direct examination, and little other evidence had been brought out to identify appellant as the robber. Nevertheless, trial counsel allegedly asked the detective whether he could identify the man in the surveillance video. At that point, the detective apparently responded that Collins was the man.

A facially sufficient claim of ineffective assistance of counsel must include allegations of fact showing deficient performance on the part of trial counsel and prejudice resulting from that deficient performance. See Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s performance is deficient if it falls below “ ‘an objective standard of reasonableness’ based on ‘prevailing professional norms.’ ” Id. (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052) Summary denial of an ineffective assistance of counsel claim raised in a rule 3.850 motion should be affirmed if the motion fails to state a facially sufficient claim or if the sworn allegations are conclusively refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999). Allegations not refuted by the record must be accepted as true. See id. If the claims are facially sufficient and not conclusively refuted by the record, the cause must be remanded for the trial court to either hold an evidentiary hearing or attach record portions conclusively refuting the appellant’s allegations. See, e.g., Griner v. State, 774 So.2d 793, 794 (Fla. 1st DCA 2000).

Taking appellant s allegations as true, we cannot simply assume a reasonable set of circumstances under which a defense attorney would ask a police detective whether the person shown committing a crime on a surveillance tape was the defendant, when such testimony was not elicited by the State and neither of the victims was able to identify the defendant as the perpetrator. The trial court was similarly unable to articulate such circumstances. Perhaps trial counsel believed that the detective would answer that he could not identify Collins as the man shown on the tape. Nothing in the record attachments, however, supports a conclusion that such belief arose from discovery or actual knowledge of counsel. Moreover, we cannot ascertain that counsel impeached the detective upon receiving an unexpected answer. Because the trial court did not attach a transcript of the cross-examination of the detective, we cannot determine whether counsel’s question, in context, fell within the objective standard of reasonableness.

Additionally, the sum of the record attachments will not support the trial court’s finding that evidence regarding identity was “overwhelming” and, therefore, appellant was not prejudiced. The trial court pointed to the detective’s testimony on direct examination to support its finding of no prejudice. The detective said he had viewed the video and the gunman was a male. He further testified that the owner of a car linked to the robbery saw the video and after that viewing, the detective obtained a warrant for appellant’s arrest. This testimony, we conclude, falls short of overwhelming evidence of identity. Whatever inference the jury could have drawn from that testimony was surely bolstered by the positive identification proffered during the defense cross-examination. The trial court’s record attachments are insufficient to negate any reasonable probability of a different outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; Cherry, 781 So.2d at 1048.

Accordingly, we REVERSE on this issue and REMAND for the trial court to either attach portions of the record conclusively showing that appellant is not entitled to relief or hold an evidentiary hearing. We AFFIRM the order in all other respects. AFFIRMED in part; REVERSED in part; and REMANDED.

WEBSTER, and DAVIS, JJ., concur.


text:
    Thomas H. PARRISH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3146.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2003.
    Thomas H. Parrish, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. Logan v. State, 846 So.2d 472 (Fla.2003).

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Chievy JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2754.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2003.
    Chievy Jones, pro se, petitioner.
    Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition is granted and Chievy Jones is hereby afforded a belated appeal from denial of postconviction relief in Du-val County case number 96-1858-CF-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BOOTH, DAVIS and PADOVANO, JJ., concur.


text:
    Thomas PRITCHETT, Appellant, v. CITY OF HOMESTEAD, etc., Appellee.
    No. 3D02-2366.
    District Court of Appeal of Florida, Third District.
    Oct. 1, 2003.
    Anthony J. Soto, Coral Gables, and Robert Rubenstein, Miami, for appellant.
    Weiss Serota Helfman Pastoriza Guesdes Cole & Boniske and Joseph H. Serota, Miami, for appellee.
    Before COPE and GERSTEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The appellant, a City of Homestead policeman, was investigated by the City’s police department internal affairs investigators for possible wrong doing in connection with his documentation of narcotics investigations. The City ultimately forwarded the matter to the State Attorney’s Office which analyzed whether discrepancies in appellant’s reports constituted official misconduct or perjury under Florida law. The State Attorney concluded that the activities the investigators found should be handled administratively, and returned the file to the City. Appellant was given a written reprimand by the City’s police department. He subsequently sued the City for “negligent supervision” of the investigation and alleged that he suffered from loss of earnings due to the denial of an anticipated promotion. The trial court granted summary final judgment in favor of the City and we affirm.

Beginning with Trianon Park Condominium, Ass’n v. City of Hialeah, 468 So.2d 912 (Fla.1985) and Everton v. Willard, 468 So.2d 936 (Fla.1985) it has been recognized that the negligent conduct of police investigations does not give rise to a cause of action because the duty to protect citizens and enforce the law is one owed generally to the public. See also Seguine v. City of Miami, 627 So.2d 14 (Fla. 3d DCA 1993) (police decisions as to enforcement of criminal law are generally immune from tort liability under discretionary function exception to waiver of sovereign tort immunity); State v. Kowalski, 617 So.2d 1099 (Fla. 5th DCA 1993) review denied 626 So.2d 1367 (Fla.1993)(duty to enforce laws and protect public safety does not create legal duty of care to person who is subject of criminal investigation, approved by this Court in Stephen v. State, 659 So.2d 705 (Fla. 3d DCA 1995)); J.B. v. Department of Health and Rehabilitative Services, 591 So.2d 317 (Fla. 4th DCA 1991) (law enforcement officer’s alleged negligent failure to proceed with an investigation does not give rise to a cause of action).

Affirmed.