author: BOOKOUT, Judge.

text:
    John Earl WELCH v. STATE.
    6 Div. 927.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Sam A Beatty, Northport, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: ten years imprisonment.

The evidence shows that the deceased, Adam McCants, had an argument with his mother-in-law who lived with him and his wife. The mother-in-law called her son, the appellant, to come and move her out of the apartment. When he arrived, he had words with the deceased and then began taking his mother’s belongings out to his car. The remainder of the evidence is in dispute.

The State introduced testimony that on arriving at the apartment, the appellant went to a neighbor’s yard where the deceased was, pulled a knife and threatened to cut the deceased’s throat. They argued and then went to the deceased’s apartment where appellant began loading the car. Johnny Bob Peck testified that he saw the appellant stab the deceased on the front porch of the apartment.

Brenda Faye Furr testified for the appellant. She was in his car when the incident occurred. She said she looked up and saw the deceased grab the appellant around the shoulders from behind. They both fell over the porch banister and into the yard. Bystanders stated that the appellant had stabbed the deceased, and she heard appellant respond that the deceased must have fallen on the knife. Both the appellant and the appellant’s mother gave essentially the same account.

Appellant said he had an old steak knife in the car that he had used to cut out part of the dashboard for mounting a tape player. He was returning the knife to the apartment when the deceased grabbed him from behind. They both fell over the banister into the yard. He got up and started into the house when a bystander exclaimed that appellant had stabbed the deceased. Appellant said he knelt over the deceased and said that he must have fallen on the knife. He then panicked and drove away. He did not know how the knife got back in his car after the stabbing.

The State’s rebuttal witness, Barbara Ann Windham, testified that she saw appellant making several trips in and out of the apartment to the car and that he had a knife in his hand. She saw the appellant stab the deceased in the chest on the last trip into the apartment, and saw them fall into the yard. Other rebuttal witnesses stated that appellant did not kneel over the deceased in the yard. One said that after the stabbing, the appellant, referring to the deceased, said, “lay there, son of a bitch,” then went into the house.

I

During deliberation of the jury, it was brought to the trial court’s attention that a juror had telephoned a local attorney seeking some legal information. She stated to the attorney that she was on the jury in the instant case, “and that she was holding out for an acquittal. ...” The attorney immediately interrupted her and informed her that he could not discuss the case under any circumstances, and he reported the incident to the court.

The trial court informed the attorneys, stating inter alia:

"... I had Mr. Sanders escort her back to my chambers and I told her what had been reported and this was highly irregular and improper, and she assured me and held up her hand and swore she did not discuss the facts of this case with Mr. Hawkins and that she did tell him she needed some legal information and advice, that she was confused in her mind about some legal points, but she insists she did not get any legal advice and she actually corroborated Mr. Hawkins’ statement that she did not discuss the facts of this case with him and that he refused to discuss it, and said he cut her off immediately when she said she was sitting on this jury. Now, gentlemen, this is unfortunate, and quite frankly I am not of the opinion that a mistrial should be entered at this point. I think Mr. Hawkins is to be commended and Mrs. Bell has told me this is the first time she had ever served on the jury and she had not intended to do anything improper and she, of course, apologized profusely to the Court for what she had done. Do you gentlemen want to make any comment or to make any motion?”

The State then made the following motion:

“Judge, we are going to ask you to grant a mistrial in this case and as grounds for my motion for a mistrial, the one juror who expressed this regard for your admonition yesterday afternoon not to discuss the case with anyone or allow anyone to discuss it with them or in their presence, in fact not only allowed the case to be discussed but sought out legal advice herself by calling her own attorney, Mr. Hawkins and on those grounds, we move for a mistrial this morning.”

Defense counsel then replied:

“Your Honor, please, inasmuch as the lady said she called this man but he refused to discuss it with her and she said she did not discuss it with anyone else and that she swore she did not discuss the case, so I don’t think there are grounds for a mistrial.”

The trial court overruled the motion for a mistrial and the jury continued its deliberations.

Title 15, § 389, Code of Alabama 1940, requires this Court to review the record for error. The last sentence of that section states:

“ . . . But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.”

Rule 45, Rules of Appellate Procedure, states:

“ERROR WITHOUT INJURY
“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Appellant’s trial counsel not only failed to move for a mistrial, but in fact argued against the granting of a mistrial. Doubtlessly he was persuaded to do so because of the juror’s remark that she was “holding out for an acquittal.” Now, with the benefit of 20/20 hindsight, it is apparent that his strategy failed. We cannot say that any other defense attorney would have acted differently under those circumstances, however, we can and do say that the appellant cannot object to the trial court’s ruling for the first time on appeal.

After conviction, the appellant filed a petition in forma pauperis for court-appointed counsel to represent him on appeal. He is represented by different counsel on appeal than he was at trial. Contrary to counsel’s able argument in brief that the trial court committed error in failing to grant the mistrial, we find that the trial court’s ruling was neither adverse to the appellant’s argument on the motion for a mistrial, nor was it prejudicial in its effect.

In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973), counsel for the defendant had knowledge of the disqualification of a juror, but failed to make objection or motion during the course of the trial, but raised the question for the first time on motion for a new trial. This Court held that defense counsel may not remain silent and gamble on a favorable verdict and then raise the matter in a motion for a new trial when the verdict turns out unfavorable to the defendant.

We do not find the trial court’s ruling to be prejudicial in its effect since the record discloses that the juror received absolutely no information from the attorney.

In Satterfield v. State, 212 Ala. 349, 102 So. 691 (1925), a bailiff entered the jury room during the jury’s deliberation and was asked by some of the jurors whether or not “second degree murder ‘would carry 25 years’.” The evidence there showed that the bailiff answered some questions concerning the number of years fixed as punishment for first degree manslaughter and second degree murder. The merits of the case were not discussed in any manner. The Alabama Supreme Court there stated:

“While all of this was very irregular and improper, and to be condemned, yet, when it affirmatively appears the irregularity was without injury or prejudicial effect upon the defendant’s cause, a reversal cannot be rested upon the action of the court in overruling the motion...."

II

We have reviewed the entire record in this cause. There is a conflict in the evidence, however, this presents a question for the jury, and a verdict thereon will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973). There was ample evidence, though conflicting, upon which the jury could base its verdict, however, the weight and sufficiency of the evidence are not before this Court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516 (1972). We have reviewed the entire record and find no error prejudicial to the appellant.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Edward COLEMAN, alias v. STATE.
    3 Div. 382.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

The jury convicted this indigent appellant of assault with intent to murder. The trial judge imposed the maximum punishment of twenty years.

The victim of the alleged assault was William Carden. The indictment charges that Butch Coleman, alias Edward Coleman, assaulted the victim with intent to murder him by kicking and beating him. This appeal is captioned in the name of Edward Coleman, alias Butch Coleman. The certificate of the circuit clerk refers to appellant as Edward Coleman, alias Butch Coleman. However, it appears that Edward and Butch Coleman is one and the same person.

It appears from the evidence that on Saturday and Sunday, September 21 and 22, 1974, respectively, appellant-defendant, Butch Coleman, and the victim William Carden, were both prisoners in the County Jail of Montgomery County, along with other prisoners, when the alleged assaults occurred.

The evidence shows that a series of different assaults and physical abuses, hereafter stated more in detail, began about 1:00 p. m. on September 21, and lasted until about 9:00 p. m.

The record supports the contention of the State that appellant-defendant was the leader of these assaults; that he either committed the several assaults and physical abuses himself, or was an accomplice.

We are unable from the record to segregate these assaults and place them in an exact time or hour bracket, but it is sufficient to say that they occurred and were repeated at intervals. There was a 'continuous harassment between the hours of 1:00 p. m. and 9:00 p. m. on Saturday, September 21, 1974. The offenses adduced under the evidence were at intervals, but so interwoven and intervolved as to constitute the res gestae of the offense charged in the indictment.

The character of the several offenses committed by this appellant in person or by his leadership shed light on each other and reflect the cruel, vicious, savage, merciless, and inhuman conduct of this defendant during the hours aforementioned. Defendant did not take the stand, nor did he put upon any witnesses. The testimony of other prisoners as to this defendant’s conduct on this occasion remained unchallenged.

The record shows that this defendant, either as an actual principal, or as an accomplice, committed assaults and physical abuses as follows:

Defendant accused one Cooter Brazzell of “snitching” to a preacher who had come to see him on a mercy mission. Defendant jumped on Brazzell, then he came in the dayroom and hit the victim Carden on the head and told him he wasn’t going to “do nothing either.”

It then appears defendant got a sharpened cup out of his cell, tried to give it to Carden, and told Carden to stab him (defendant) with it. Carden wouldn’t do it. One Smoot, another prisoner, took the cup and put it under Carden’s throat. Defendant then said, according to Carden, “Don’t kill him, we’ll kill him slow.”

Then they, defendant and Smoot, ran Carden, who did not have on any clothes, around the table, sticking him with pins, and then kicked and stomped him. They then put him on a table and put a belt around his neck.

The victim said he got under a table, that defendant hit him two or three times with his fists, and that Larry McManus hit him with a Dingo boot and knocked him under the table.

While he was under the table, still undressed, Dutch and Roosevelt threw hot water on him, and then they took some paper and put it between Cooter Brazzell’s legs and lit it, and “he burnt me in the face Cooter was on top of me.”

The evidence further shows that Cooter “had his prick in my mouth and they stuck fire up in his hips.” He testified that defendant and another prisoner made them get in that position. Defendant stuck some matches in “his tail,” and then lit them; also stuck a domino “up in there.”

They whipped Carden with his belt and then “hung me with it.” “Butch did it, Charles Smoot helped him.” Carden further testified that Smoot then tied the belt to the prison bars and pushed his (Carden’s) feet off the table. The victim then passed out. It appears from the evidence of another prisoner, McCluskey, that he untied the belt and Carden then fell to the floor.

Carden further testified that before they had been running around the table, defendant and Roosevelt tied a string around his neck and put a slipknot tie in it. They then tied it to his testicles and penis, made him get down on the floor and walk around like a dog, and “drug him by the string.” They then took “us” over to the shower and tied Carden to the bars; they then “throwed hot water on us,” and made “us suck each other’s penises.”

Witnesses testified that “Dutch and Smoot” were the leaders of “all this.”

It appears further that on Sunday or Monday morning, Sheriff Stevens took him to the hospital where he spent four days in intensive care.

The victim testified on cross that he beat and kicked him lots, all on this same day, Saturday, September 21, 1974.

On re-direct, the witness Carden testified:

“Q. Would you answer Mr. Walden’s question? Did you think they were going to kill you?
“A. Yes, sir.
“Q. Did you get knocked out at all?
“A. Three times.
“Q. Did this man ever hit you and knock you out ?
“A. He was hitting me. I can’t say whether he knocked me out, but the Dingo boot knocked me down.
“Q. Did you end up in the hospital?
“A. Yes, sir.
“Q. How many days were you in intensive care?
“MR. WALDEN: Your Honor, we are going to object to whether there was any hospital.
“THE COURT: Overruled.
“MR. COLLIER: Unless it is tied—
“MR. THOMAS: How many days were you in intensive care?
“MR. COLLIER: If I could go further with Mr. Walden’s objection, we would object unless the hospitalization can be shown to be a direct result of what he is charged with in this indictment.
“THE COURT: Overruled.
“Q. How many days were you in intensive care?
“A. Four days.”

Suffice it to say, without further delineation, that Carden’s testimony was supported by other witnesses.

Photographs of Carden, taken soon after the assault, were introduced in evidence. These pictures are not in the record, but the jury saw them and were informed thereby as to Carden’s physical appearance from the alleged beatings. The pictures were admissible.

An intent to take life is an essential element of the offense of assault with intent to murder. Bowen v. State, 32 Ala.App. 357, 26 So.2d 205.

Such intent must be determined by the jury from facts proved so clearly as to leave no reasonable doubt of the intent of accused to commit murder.

We think the evidence as to the beatings and the conduct of the defendant on the occasions presented a jury question as to the intent of this defendant. The trial court properly overruled the motions to exclude the evidence and for a new trial. So far as we are able to find in our review of the entire record, the court was free of prejudicial error in admitting evidence.

The whole of the testimony of the witnesses presented defendant as a depraved person, void of moral concepts, with a brutal disposition, and void of regard for human dignity and security.

We are unwilling to say that the trial judge should have recused himself from trying this case for that prior to this trial, when he sentenced a companion participant in this same ordeal, he bemoaned the fact that the law wouldn’t permit him to impose a more severe sentence than the maximum of twenty years. There is nothing in the record to indicate bias or partiality in the trial of the case. The imposition of the maximum of twenty years in the instant case was not the product of bias, but was based on the evidence. The defendant, in our judgment, got what he deserved. Defendant’s conduct was definitely akin to savagery.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

We affirm the judgment addendum.

Affirmed.

All the Judges concur.


author: HARRIS, Judge.

text:
    Jerry Wayne HOPKINS v. STATE.
    8 Div. 686.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      James M. Dyer, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant filed a pro se petition for writ of error coram nobis in the Circuit Court of Madison County, containing nine separate grounds, seeking to overturn a 1971 conviction for robbery in which he was sentenced to twenty years in the penitentiary. Upon the filing of this petition the judge who presided at the robbery trial appointed counsel to represent him, and set a date to hear the petition.

Appointed counsel filed a supplemental petition to the pro se petition in which he alleged the following errors in the original trial:

1. Failure of the trial court to keep the jury sequestered in a felony case.
2. Denial of counsel at a pre-indictment identification process which was suggestive and conducive to mistaken identity.
3. Denial of counsel at preliminary hearing.

The appeal from the original conviction was affirmed by this court on October 24, 1972. Hopkins v. State, 49 Ala.App. 159, 269 So.2d 175.

Appellant asserts that the first and third propositions were not raised on direct appeal to this court and that the second proposition received limited review by Judge (now Justice) Almon in his opinion in Hopkins, supra. We disagree that the second proposition only received limited review on direct appeal in this case. There it was said:

“Appellant also challenges the in-court identification by witnesses Logan and Williams as having been founded on an improperly suggestive viewing of a ‘police mug book.’ We have carefully considered the record in this regard and find that both victims separately viewed the Huntsville mug book containing a number of photographs without the appellant having been singled out to either. This was done by the police officers without allowing either victim to consult with the other, and each separately identified the appellant. This occurred shortly after eight on the evening of the robbery while their memories were fresh. Each victim made an independent identification of the appellant in court at trial and, considering the totality of the circumstances as we must do under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, we find that the trial court correctly allowed the identification of the appellant by witnesses Logan and Williams to be submitted to the trial jury. McGhee v. State, 48 Ala.App. 330, 264 So.2d 560, and cases cited therein.”

We have carefully read the petition filed in this case and there is no allegation that petitioner was innocent of the crime charged or that he had a valid defense. The original transcript of the evidence of the robbery conviction was introduced in evidence on the hearing of this petition and it shows that appellant did not testify. Under a long line of cases of this court and the Supreme Court the failure to assert a valid defense and innocence of the crime is fatal in such proceedings. Mack v. State, 51 Ala.App. 611, 288 So.2d 150; Ex parte Taylor, 249 Ala. 667, 32 So.2d 659; Ex parte Fewell, 261 Ala. 246, 73 So.2d 558; Rickard v. State, 44 Ala.App. 281, 207 So.2d 422; Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917.

On the question of the separation of the jury the record on the original trial showed two recesses, one during the trial for fifteen minutes and one for the night. The record at these points does not indicate whether the jury separated or not. If there was a separation of the jury, the record of the robbery trial shows no objection to the separation nor a motion for a mistrial on that ground. There was no motion for a new trial.

In addition to the record of appellant’s robbery trial appellant offered witnesses who testified that according to their best recollection the jury was allowed to separate with the consent of the parties. No one was sure whether or not appellant personally consented to the separation, except the appellant. He was sure he did not consent. Assuming that the jury was allowed to separate without appellant’s consent, the original record reveals no objection, no motion for a mistrial and no motion for a new trial. Thus that question could not have been raised in appellant’s original appeal. Kenny v. State, 51 Ala.App. 35, 282 So.2d 387; Brown v. State, 53 Ala.App. 674, 304 So.2d 17.

The function of a writ of error coram nobis is not to relieve a party of his own negligence of not raising issues at the time of trial when he had full knowledge of .the facts. Senn v. State, 43 Ala.App. 323, 189 So.2d 870.

The office of a writ of error cor-am nobis is to bring to the attention of the court for correction of an error of fact which did not appear on the face of the record, which was unknown to the court or party affected and which, if known in time, would have prevented the judgment challenged. Groce v. State, 48 Ala.App. 709, 267 So.2d 499.

In Horsley v. State, 42 Ala.App. 567, 172 So.2d 56, this court said:

“Coram nobis is not a plenipotentiary mission to retry indictments: it is a carefully guarded engine to root out egregious fraud or collusion leading to a judgment. Willis v. State, 42 Ala.App. 85, 152 So.2d 883; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302.”

On the question of lack of counsel at preliminary hearing the short answer to this contention is that the County Judge testified that appellant appeared before him and he offered to appoint counsel and appellant said it was not necessary to appoint counsel as he desired to waive a preliminary hearing and asked the court to fix bond. The County Judge fixed bond on the robbery charge at $10,000.00 and on the two assault to murder charges bond was fixed at $5,000.00 in each case, and he was bound over to await the action of the grand jury, and he was indicted.

Where the grand jury found probable cause and returned an indictment the appellant had no constitutional right to a preliminary hearing. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242.

During the hearing of this petition the trial judge testified as follows:

“THE COURT: My name is David R. Archer. I am a Judge. I was the Presiding Judge in the case of Jerry Wayne Hopkins on a charge of robbery. I state that the jury, having separated, was separated with the consent of the parties. I do not state that the defendant himself stood before me and said that he agreed that the jury be separated, but I do state categorically and without equivocation that the attorney for the defendant and/or the defendant himself, either individually or collectively, one or the other or both, consented to the separation of the jury during this trial. Otherwise, they would not have been separated.”

At the conclusion of the hearing the trial court rendered the following decree:

“ORDER
This cause coming on to be heard on a Petition for a Writ of Error Coram Nobis, filed by the Petitioner.
On April 13, 1971, at the trial of the Petitioner, the jury returned a verdict finding the Petitioner guilty of robbery and setting his punishment at twenty (20) years in the penitentiary.
The Petitioner applied for and received an appeal in said cause.
The Court of Criminal Appeals affirmed the finding of guilty and the sentence by Decree of the October Term, 1972-73.
The Present Petition was filed by Petitioner on December 13, 1974, alleging among other things that the jury was allowed to separate without Defendant’s consent or permission.
Page T-63 of the trial transcript shows that the State moved to recess to put exhibits in proper order and the Court at that time said, ‘We will recess until in the morning at nine o’clock.
Ladies and Gentlemen of the Jury, I caution you not to discuss this case among yourselves or with anyone else and do not permit anyone to discuss it with you.’ And again on Page T-83, the judge said to the jury, ‘Ladies and Gentlemen, we will take a recess at this time. I will give you fifteen minutes. That will give you time for coffee. In all probability when you return, we will hear the closing arguments of counsel. We may or may not. We will determine that then. In the meantime, however, I caution you not to discuss this case among yourselves or with anyone else and do not permit anyone to discuss it with you.’
The attorney who represented the Defendant-Petitioner at that trial gave testimony under oath that at the time of the trial, he was aware of the statutory provision which authorized the jury to separate in a capital or felony case with the consent of the defendant or Defendant’s attorney or both and with the consent of the State of Alabama by and through its District Attorney.
Separation of the jury was not raised by the Petitioner on his appeal in this cause and is now raised for the first time by his Writ for Error Coram Nobis.
On the hearing of the Petition for Writ of Error Coram Nobis, the Court finds that permission to separate the jury during the trial was granted, either by Defendant, of Defendant’s counsel or consent by both.
The Court finds no merit in the allegations in paragraph one, two, three, four, five, six, seven, eight and nine.
The Court, having heard the testimony of the Petitioner, counsel for Petitioner (Defendant), at the time of the trial, and a statement under oath and cross-examination by the judge who presided at the trial, finds -that the Petitioner is not entitled to have his Petition for a Writ of Error Coram Nobis granted.
It is therefore CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that the Petition for a Writ of Error Coram Nobis is denied.
This the 7th day of April, 1975.
/s/ David R. Archer
CIRCUIT JUDGE”

A petition for a writ of error cor-am nobis is a civil proceeding and the burden is on the petitioner to prove the allegations of the petition. Ex parte Wilson, 275 Ala. 439, 155 So.2d 611; Shaw v. State, 283 Ala. 555, 219 So.2d 382.

We are not persuaded that appellant has carried the burden cast upon him by law.

The judgment is affirmed.

Affirmed.

All the Judges concur.


text:
    Lee STANLEY v. STATE.
    1 Div. 621.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Fred F. Smith, Fairhope, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an eighteen year-old indigent, was indicted for burglarizing an uninhabited dwelling house, owned by or in the possession of Archie Lawrence. The indictment avers that the burglary was committed with intent to steal. He declined to be tried under the Youthful Offender Act. A jury convicted him. The court imposed sentence of three years imprisonment. This appeal followed from the judgment.

It appears from the evidence that the house was owned at the time of the alleged burglary, August 2, 1974, by Archie Lawrence but was rented to Deborah Quaites as a tenant.

There was no variance between the proof and the indictment; both showed ownership in Lawrence which was sufficient. The fact that the house was rented-to a tenant did not impair the efficacy of the alleged ownership in the indictment, nor did it give credence to a variance. The tenant was not at home when the burglary occurred. Hence, the dwelling was uninhabited at the time. Moore v. State, 35 Ala.App. 95, 44 So.2d 262.

The Supreme Court in denying a petition for a writ of certiorari in Wilson v. State, 32 Ala.App. 127, 22 So.2d 600, held in Wilson v. State, 247 Ala. 84, 22 So.2d 601, that “an essential averment in a charge for an offense against property is the negation of the defendant’s ownership or possessory right, so as to affirmatively show that the property, general or special, against which the crime is laid, is in another.” Emmonds v. State, 87 Ala. 12, 6 So. 54.

This is true of a charge of burglary under our statute because the offense is not committed by one who breaks and enters his own dwelling or other building. Wilson, supra; 12 C.J.S. Burglary § 26, p. 685, T. 15, § 259, Code of Alabama, Recompiled 1958, Form No. 32. The indictment meets the mandates of law and there was no variance. It showed that the defendant was not the owner at the time of the alleged burglary.

A confession to the instant burglary was admitted over defendant’s objection for that the confession contained an admission of two prior offenses of burglary.

The two offenses referred to the burglary of the same house or dwelling, the subject of the instant indictment, which at the time was occupied by Clifton Quaites, who was the husband of Deborah Quaites. On the first burglary he admitted taking some money and a pair of pants. On the second burglary, he said he could not find anything he wanted.

The confession of these two burglaries was admissible to show intent with respect to the instant burglary, which defendant denied.

Defendant contended on the stand that he entered the dwelling as a visitor, and did not break in or enter by force. Mrs. Quaites testified that she securely locked the dwelling when she left. Another witness testified that he saw defendant raise and enter through a window. The witness called the police who found defendant sitting in a chair.

It is true that ordinarily, evidence of other offenses, is not admissible. Harvey v. State, 41 Ala.App. 300, 130 So.2d 823; McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528. As with most broad general rules, numerous exceptions have been developed. One of these exceptions is that the proof of similar transactions at or near the time of the offense in question, is admissible to prove intent, scheme or pattern; Harvey, supra; McMurtrey, supra.

The two offenses in question involved the burglary of the instant house then occupied by the same tenant, Mrs. Quaites. We hold that confession of the two other burglaries was clearly admissible to show intent to steal, and that the entry was not made for a social visit as defendant contended.

The interval between the first two burglaries, in February, 1974, and the instant burglary, August 2, 1974, about five months, was not so wide in point of time as to preclude admission of the confession as to the February burglaries.

We have reviewed the record and find no prejudicial rulings by the trial court. The motion to exclude the evidence was properly overruled.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge on this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; ^his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


text:
    Jerry Reynolds STUCKEY v. STATE.
    3 Div. 393.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Warren S. Reese, Jr., and L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and
    James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and, in accordance with the verdict of the jury, he was sentenced to twenty years in the penitentiary. He was represented at arraignment and trial by retained counsel who represents him on appeal. He pleaded not guilty.

The evidence in this case is in sharp conflict. The state’s evidence made a strong case of murder without any extenuating circumstances. The evidence for appellant tended to show the shooting was accidental.

Appellant and the deceased were husband and wife and had been married four years at the time of the shooting around midnight on March 2, 1974. They had a three-year-old daughter as a result of their marriage. They lived in a trailer in the Ramer Community of Montgomery County, Alabama.

Byron Harris whose nickname was “Buddy” was one of the state’s key witnesses. He testified that he knew both appellant and the deceased but was not related to either of them. He stated he had occasion to be with both of them the night before the shooting at a local lounge in Montgomery. All three had something to drink and this witness danced with the deceased and so did appellant. They became friendly during the evening and Buddy was invited by appellant and the deceased to spend the night with them at their trailer and he accepted their invitation. He followed them to Ramer in his pickup truck and slept on the couch in their trailer home. He left the next morning about ten o’clock. Before leaving, appellant and the deceased invited him to a party that night at another trailer located two down from appellant’s. He stated that he did not know anyone at this party except appellant and the deceased and that he danced some with the deceased.

Harris further testified that after a while he noticed that appellant was watching them and he mentioned this to the deceased and asked her if he was jealous. She replied that her husband was only jealous of John. The last name was not mentioned. He quit dancing with the deceased as he appeared to be getting upset. Soon thereafter a telephone call was received advising that a couple who had attended the party had become involved in a wreck. Appellant and the deceased started leaving without telling him good-bye, and they were having a discussion but Harris could not hear what was being discussed.

Harris further stated that he approached appellant and the deceased outside by their car and asked appellant what was the matter and he bluntly said nothing. Harris then asked the deceased what was wrong and he did not get a reply. The deceased got in the car with her husband and Harris walked up to the car and asked her again what was the trouble, and she said, “Nothing, we will be back in a minute.” Harris said he thought they were going to the wreck, but they pulled into their driveway. Harris then started back to the party and he heard a loud noise. About that time he heard someone yell that appellant just called and said he had shot Kaye accidentally.

Harris further stated he jumped in his truck and pulled into appellant’s driveway and ran in the trailer house.

We quote from the record:

“A. Well, I opened the door and I didn’t see nothing, and I turned to go— when I turned to go down the hall, you could see Kaye’s head laying in the floor down the hall. I went on back there and I turned into the bedroom. I had never been in the bedroom, but I went straight back that way because it was the only place to go. When I got there, Kaye was laying on the floor face up with her head at the end of the bed where you could see it almost from the hallway. Jerry was standing at her feet and he had the phone. He had both hands hanging down to his side and he had the phone in one hand and he had the gun in the other hand.
“Q. Now, which hand did he have the gun in?
“A. He had the gun in his left hand and he had the phone in his right hand, and he was just standing there staring. I looked down at Kaye first and when I looked back at him, I said Jerry what in the hell did you do. He stood there a minute and then he said I was putting the gun in the closet. So I looked at the closet and the closet door was open, and then about that time some more people started coming into the trailer.”

According to this witness, appellant did not say to him that he accidentally shot his wife but only said he was putting the gun in the closet. He said appellant was covered with blood from his shoulder all 'the way down; that there was blood over the wall behind the telephone; that there was blood on the bed, and there was blood in the corridor between the bed and telephone stand where deceased was lying.

This witness further stated that several people came in the trailer three or four minutes after he arrived. He noticed Kaye move her head and mouth and he said she is not dead, “let’s get her up and get her to the hospital,” but this was not done immediately, because someone said the Sheriff had been called and they said, “Let’s wait until the Sheriff gets here before we move her.” He said it was eventually decided that Kaye should be carried to the hospital. He stated that he got her arms and some others got her head and they put her in the back seat of the car and carried her to the hospital.

This witness stated that appellant did not help put his wife in the car. That he came out of the trailer with the gun in his hand after she was in the car. He said appellant drove the car to Montgomery and there were two other men in the car with him. After arriving at the hospital and after Kaye Stuckey was pronounced dead, Harris drove the two men from -the hospital back to the trailer where the party was.

Harris further testified that appellant and his attorney called on him at work prior to the preliminary hearing and one of them’ asked whether he was sure that he saw the gun in the defendant’s hand. The witness told them he was sure he saw the gun in his hand which, prompted the defendant to say that he did not have the gun in his hand. The witness explained that he again told the defendant that is what he saw; that when he walked into the bedroom, the defendant had a gun in his hand. The defendant then told the witness to think, deep down inside his heart before he said he saw the defendant with a gun in his hand to which the witness replied, “I am sorry, but I saw it and that was the way it was.”

Mr. Richard A. Roper testified that he was employed by the State Department of Toxicology and Criminal Investigation and was stationed in Montgomery. After stating his education, background and experience, he was asked if he had occasion to examine a .38 Smith and Wesson pistol, serial number 432720, and he said yes. He described the pistol as a .38 caliber special revolver, model 10, with a four-inch barrel, and that it was a standard double action revolver. He further testified that the pistol was turned over to him by Deputy John Moorer of the Montgomery Sheriff’s Department on March 4, 1974. This witness was asked the condition of the pistol when he received it and stated:

“A. When I first examined the weapon, there was blood on the left side of the frame of the weapon and the left side of the cylinder. There was a large blood clot which drained from the barrel of the weapon while I was conducting my initial preliminary examination. This was a semi-fluid blood clot. The weapon itself was, as far as its general condition is concerned, was very difficult to turn just in a rotating fashion. It was very difficult to rotate this way. It was with some difficulty also that I was able to make the cylinder swing out from the frame. As part of my study of the weapon, I test fired the weapon and collected known bullets fired through the barrel of the weapon. During this portion of the examination I found the weapon to be extremely difficult to fire.
******
“A. The revolver was turned over to me March 4, 1974, by Deputy Moorer. I looked at the weapon several times subsequent to that date. I examined it on March 4 when Deputy Moorer brought it into the laboratory. It was at this time that I observed the blood on the weapon, the blood in the barrel of the weapon and that certain functional aspects of the weapon were very difficult. I went in on several occasions after that, went into the examination of the weapon in question. After this time, several times subsequent to the month of March I examined the weapon, probably three or four different times.
******
“A. I found no blood in the mechanism of the weapon. In my opinion the blood was not the cause of the misfunction.
“A. In test firing the weapon, my usual routine when I test fire a gun, I shoot into a long narrow box of cotton, which is a method of collecting the bullet and collecting in an intact state and unharmed. To do this I have to shoot into an opening about so big into the box. And by aiming the weapon I usually hold the gun steady with two hands and simply pull the trigger. But in this particular instance in order to pull the trigger, I had to work both fingers into the trigger slot and aim to the point where the weapon was quivering. It took both fingers to pull the trigger. It took both thumbs simply to get the weapon to cock. At times in my examination I had to put the weapon down in this fashion to get leverage between by knees and apply pressure with both thumbs to get the weapon cocked. With the weapon in a cocked position like this it would fire quite easily. But the problem was getting the hammer back or getting the trigger pulled.”

Mr. Roper also stated that he had examined the body of Elizabeth Kaye Stuckey and concluded that death was caused by a bullet wound to the head which entered the mid lower left eyelid and exited in the posterior crown of the head.

Mr. Roper stated there was no blood in the mechanism of the pistol.

Mr. Nelson H. Watts testified that he was employed by the Alabama Department of Public Safety as a firearms instructor to the State Troopers. As to his qualifications he stated he was a graduate of the Smith and Wesson Academy, Smith and Wesson Armament School, National Firearms Instruction School, FBI Firearms School, Remington Firearms School and the Browning Company. He stated that he had examined six or seven hundred .38 Smith and Wesson pistols a year.

Mr. Watts described State’s Exhibit No. 10 which was the .38 caliber Smith and Wesson pistol recovered from appellant’s car which was verified as the murder weapon. He explained that this weapon had two safety devices which would prevent it from firing unless the trigger was pulled and held to the rear. He stated that the gun would not go off if it was dropped, the trigger had to be pulled back and held to the rear so the hammer would fall. The other safety feature prevented the firing pin from protruding unless the trigger was pulled and held back. This witness explained that if the weapon was dropped or a pencil was slammed against the hammer it would not fire because of the two safety devices. It could only be fired by cocking it and holding the trigger back until the hammer falls. Mr. Watts further testified that twelve to fifteen pounds of pressure is needed to fire the weapon when it is uncocked and that in his expert opinion, State’s Exhibit No. 10 would not fire accidentally.

Norman Wayne Ward, a Deputy Sheriff with the Montgomery County Sheriff’s Department, testified that the only call he received regarding the Stuckey murder case came from the City Police Desk. The caller related that there had been a shooting and the victim was at St. Margaret’s Hospital.

Captain Robert F. Holton of the Montgomery Police Department testified that all calls received by the Department were marked and stamped, by time on an IBM card. He stated he had a card showing a call from St. Margaret’s Hospital at 12:42 a. m. on March 4, 1974. This IBM card reflected that the substance of the call was that there was a victim with a gunshot wound in her head and that she was dead on arrival at the hospital. The card further showed that two detectives were dispatched to the hospital. Captain Holton stated that this call was the only one received from St. Margaret’s Hospital. When the detectives arrived at the hospital, they learned that the offense was committed in Ramer and they notified the Sheriff’s Office.

Martha Jane Reynolds, a sister of the deceased, testified that in 1973 and 1974 she would spend three or four nights a week with her sister and appellant. She stated that the whole time she was there appellant and her sister always fussed at each other. She stated that in August of 1973 when she arrived to spend the night, appellant immediately started fussing at the deceased, asking where she had been. This witness said they continued to fuss and started fighting.

According to this witness appellant told her sister that if she wanted to leave, just go ahead and pack her bags and leave. At this time the deceased went into the bedroom and appellant followed her. and they were still fussing. She heard her sister crying and heard her say, “Go ahead and shoot me, Jerry, just go ahead.” She further stated that when they left the bedroom, appellant told the deceased to pack her bags and leave, but she could not get Wendy (the three-year-old child).

Photographs of the body of the deceased were taken by Deputy Sheriff John Moor-er at St. Margaret’s Hospital and White Chapel Funeral Home. The photographs depicted the wounds on the body of the deceased but the trial court allowed only dne of the several photographs in evidence.

Appellant testified that he and his wife attended a party on March 2, 1974, at the trailer of James Ransom, which was located two trailers from his trailer. He stated that the night before the party, he and his wife met Buddy Harris at a bar in Montgomery where each had several drinks and danced. He said there were no arguments three of them. He further testified that or disagreements that night between the Buddy Harris spent the night with him and his now deceased wife and left around ten o’clock the following morning and the next time he saw Buddy Harris was that night at the Ransoms’ party.

According to appellant he stayed outside and cooked with Wayne Dicks most of the evening; that he danced with his wife one time and that he did not object to his wife dancing with other men. Pie admitted drinking three beers during the evening.

Appellant stated that Buddy Harris drank a lot of beer that night and told him that he had been drinking all day. He said that both he and his wife were in good humor at the party and that he was not jealous over her dancing with other men.

Appellant said that he and his wife left the party to go to a wreck around 12:00 midnight. He stated that before leaving Buddy Harris inquired as to what was wrong and that both he and his wife told him that nothing was wrong and for him to wait as they would be right back.

Appellant further stated that he went to the trailer to put his pistol away because he did not have a permit for it and was unaware that his wife had a pistol permit. He stated that he went into the bedroom to put his gun in the holster hanging near his gun rack. He said his wife came in behind him and walked over near the night stand and called his name. He stated that he turned around and when he did the gun went off hitting his wife. That after the gun fired, he threw it on the bed and tried to keep his wife from falling by putting her on the bed but was unable to put her on the bed. He then said he put her on the floor and tried to stop the bleeding. Being unable to stop the bleeding, he called his sister’s house, Mrs. Randy Ransom, for help.

Appellant stated that he told Kenny Broadway to come quickly, that he had accidentally shot his wife. He said he called the operator and was told that St. Margaret’s was the emergency room hospital. According to appellant, Buddy Harris, Wayne Dicks and Kenny Broadway came in while he was on the telephone. That Buddy Harris asked him, “what the hell had he done,” that when Buddy said that, the operator was telling him about the emergency room hospital and that was the reason he did not respond to Buddy Harris’ question. Appellant further stated that he told the operator to have a Deputy Sheriff meet them at the hospital because there had been a bad accident.

Appellant testified that Buddy Harris came into the bedroom first, closely followed by Wayne Dicks and Kenny Broadway. He said that he was on his knees at his wife’s feet when they carried her out to the car. He stated that after taking her outside, he went back inside and got the pistol. He said he drove the deceased to the hospital at a high rate of speed.

He stated that the closet in the bedroom had a shelf about six inches high but the gun was not kept on the shelf. It was kept in the holster. That he was trying to put the gun in the holster when his wife called him causing him to turn and accidentally shoot her.

Appellant said the trigger on the murder weapon was easier to squeeze than his rifle and shotgun.

On cross-examination appellant admitted that at times he kept his pistol in the closet in the bedroom, and more particularly on the shelf in the closet. He had no explanation why his brother-in-law knew about his deceased wife’s pistol permit and he did not know she had one.

Appellant stated that he was putting the gun in the holster without holding the trigger or cocking the firing mechanism, yet when he turned in response to his wife’s call, the pistol fired.

Appellant admitted that he and his deceased wife had marital problems before the shooting, specifically over the bank book and the deceased staying at her mother’s home. He also admitted telling the deceased the night her sister was there to pack her bags and go live with her mother.

He demonstrated to the jury how he put the gun in his holster the night of the shooting, particularly showing the jury how his finger was not on the trigger and the weapon being uncocked. Appellant further stated that he had no explanation as to why the bullet entered and exited his wife’s head in a straight line with absolutely no angle. He said he threw the gun on the bed after he shot his wife. He stated the gun was lying flat on the bed. He could not explain how the gun got two inches of blood in the barrel and he could not explain the fact that he was seen with the gun lying next to his left thigh when he sat on the bed. He testified that the gun was on a bloodstain in the middle of the bed and that was the reason for the blood being on the gun, but he could not explain how the gun was placed next to his left hip when he sat on the bed which position was away from the blood in the middle of the bed.

Appellant further testified that he did not remember Buddy Harris helping carry his wife to the car. He could give no reason for going back into the trailer and getting the pistol before taking his wife to the hospital.

A host of witnesses testified to the good general reputation of appellant in the community and also that his reputation for truth and veracity was good. They further testified that appellant- and the deceased appeared to be in good humor the night of the party. These witnesses were long-time friends of appellant and some were his co-workers. They all admitted drinking beer or mixed drinks at the party and that a lot of dancing was going on.

The evidence tends to show that the party was very lively and there were at least two instances of men carrying other men’s wives to bedrooms which provoked considerable difficulties and a fight in which one man beat his wife.

One of the witnesses who testified as a character witness for appellant said he had a low boiling point.

Some of the witnesses at the party testified that Buddy Harris was drunk or pretty tight.

The state called a number of rebuttal witnesses who testified that appellant’s reputation in the community for truth and veracity was bad. That his reputation in the community for peacefulness and quietude was loud, ugly and boastful.

A co-employee of the deceased testified that she was “very unhappy, upset, scared and desperate” the last week she worked before her death. That they usually had lunch together but did not that week as the deceased was looking for an apartment.

Raymond Silas stated that he was with appellant and the deceased at a lounge the night before she was shot. He said he danced with the deceased and when he did, appellant became upset and said some ugly things to him.

Deputy Sheriff John Moorer was recalled as a witness for the state and testified that he first saw Buddy Harris around 1:45 a. m. on March 3, 1974, and that he was sober. He further stated that he saw Buddy Harris again at 2:45 a. m. and was with him until 6:30 a. m. and that Harris was entirely sober.

Appellant was indicted for murder in the first degree and he was convicted of murder in the second degree. The Court charged the jury on all four degrees of homicide.

In a prosecution for murder it is for the jury to determine the claim of the accused that the shooting was accidental. Harrell v. State, 160 Ala. 91, 49 So. 805; Powell v. State, 219 Ala. 557, 123 So. 34; Macon v. State, 36 Ala.App. 651, 63 So.2d 32; McMillan v. State, 44 Ala.App. 216, 205 So.2d 603; Smith v. State, 54 Ala.App. 96, 304 So.2d 914.

Conflicting testimony is for the jury, and a verdict rendered thereon will not be disturbed on appeal. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

Appellant’s motion for a new trial was overruled and denied. In reviewing the refusal of a motion for a new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial judge. Espey v. State, 270 Ala. 669, 120 So.2d 904; Owens v. State, 40 Ala.App. 36, 109 So.2d 141; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

We have carefully considered the refused charges in the light of the oral charge and the charges given at the request of appellant and have concluded that the refused charges, stating correct principles of law, were fully, adequately and substantially covered in the oral charge and the given charges; hence, their refusals were proper. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272; White v. State, 249 Ala. 158, 30 So.2d 468; Chambers v. State, 264 Ala. 8, 84 So.2d 342; Kennedy v. State, 291 Ala. 62, 277 So.2d 878.

We find no reversible error in the record, and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Preston HERD and Gene Autry Alexander v. STATE.
    2 Div. 144.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

These are appeals from convictions on misdemeanor charges of assault and battery, insulting peace officers and resisting arrest. All the sentences were assessed to run consecutively.

No exception was taken to the oral charge to the jury. Trial was had on the complaints originally filed in the county court.

We have examined the record and consider that all the judgments are due to be affirmed. However, under Code 1940, T. 15, § 287, the sentence of appellant Alexander for resisting arrest should run concurrently with the sentence for assault and battery on Deputy Sheriff R. P. Bridges. See Yelton v. State, 56 Ala.App. 272, 321 So.2d 234; Burress v. State, 56 Ala.App. 414, 321 So.2d 752.

Affirmed but one judgment remanded for proper sentence.

All the Judges concur, except De-CARLO, J., who concurs in result.

      . Counsel for appellants did not file a brief.

      . Circuit Court case numbers 6934 and 6935.


text:
    Tommy MOORE v. STATE.
    6 Div. 44.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      W. Wheeler Smith, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr.,. Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

Second degree burglary and grand larceny; guilty plea to both; sentence: three years imprisonment on each to run concurrently.

Appellant, on entering a plea of guilty to the above two felony charges, executed a form entitled “COURT’S EXHIBIT A,” commonly referred to as an Ireland form. (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602). That form informed appellant of his constitutional rights as mandated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The form was signed by the appellant, his attorney and the circuit judge on March 4, 1975.

On the same date, the following colloquy took place:

“THE COURT: You are Tommy Moore ?
“THE DEFENDANT: Yes, sir.
“THE COURT: You are charged in Case 31309 with Grand Larceny, and in case 31223 with the crime of Burglary. Both offences (sic) carry one to ten year sentence, (sic)
“I understand you wish to enter a plea of guilty. Is that correct ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has your attorney explained to you that you have a right to a jury trial if you’d rather have one ?
“THE DEFENDANT: Yes, sir.
“THE COURT: You waive that right?
“THE DEFENDANT: Yes, sir.
“THE COURT: You wish to enter a plea of guilty ?
“THE DEFENDANT: Yes, sir.
“THE COURT: I’m preparing for you, or my Bailiff is preparing for you what we call Court Exhibit ‘A’, which explains certain rights to you. Has your attorney discussed that with you ?
“THE DEFENDANT: Yes, sir.
“THE COURT: Both of these offences (sic) the maximum sentence is ten years, the minimum is one year.
“ATTORNEY: Judge, Mr. Reynolds recommends three years in each case.
“THE COURT: I find you guilty of Grand Larceny in case number 31309, refer your case to the Probation Department for investigation. I will sentence you whenever I receive their report. Case number 31223, charged with Burglary, refer your case to the Probation Department for investigation. I will sentence you when I receive their report.”

In separate minute entries on each case, there is a showing of a guilty plea entered, a finding of guilty thereon by the court, and a sentence of three years, to run concurrently. Appellant was given credit on his sentences for any time spent in the county jail awaiting trial, unless he was serving time for another offense.

Appellant contends the record does not affirmatively reflect that the guilty pleas were intelligently and voluntarily given. We disagree.

Boykin, supra, requires that the re-ord affirmatively show that the appellant was informed of the rights therein enumerated. The trial judge must ascertain that the appellant does understand those rights, and voluntarily enters his guilty plea.

A full and complete colloquy between the court and the appellant, and transcribed by the court reporter, is preferable. Cooper v. State, 53 Ala.App. 36, 297 So.2d 169 (1973). But other methods of memorializing a proper guilty plea are available. Our Supreme Court has held a guilty plea sufficient where an Ireland form is recited in the record, signed by the defendant, his attorney and the trial judge, where the judgment entry recites that a colloquy took place wherein the trial judge ascertained from the defendant that he had read the form, had it explained to him, understood his rights and the consequences of a guilty plea. Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974).

In the instant case, we find a form almost identical to that approved in Twy-man, however, the judgment entries here do not recite that a colloquy was held, as was recited in the judgment entry in Twy-man. However, we find the brief colloquy, hereinabove set out, as recorded by the court reporter. That colloquy, while exceptionally brief, nevertheless shows that the appellant personally requested to plead guilty, that he wished to waive a jury trial, that he knew the range of punishment and that his attorney had discussed the Ireland form with him. Nothing in the record refutes those facts. We, therefore, consider such facts to have met the bare minimum standards to sustain the guilty plea as having been intelligently and voluntarily entered by the appellant.

Affirmed.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Ralph E. McKINNON.
    6 Div. 132.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Robert R. Bryan, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the respondent, the State.
   PER CURIAM.

The petition for writ of mandamus and material filed in support thereof being insufficient, as a matter of law, the rule nisi is quashed, and the petition for writ of mandamus is denied.

All the Judges concur.


author: FERRIS, Circuit Judge:

text:
    ENCORE, INC., a Florida Corporation, et al., Petitioners, v. OLIVETTI CORPORATION OF AMERICA, a Delaware Corporation, Respondent.
    No. 45338.
    Supreme Court of Florida.
    Jan. 7, 1976.
    Rehearing Denied Feb. 23, 1976.
    Henry W. Ciar, Miami, for petitioners.
    Joe N. Unger, of Smith, Mandler, Smith, Parker & Werner, Miami Beach, for respondent.
   FERRIS, Circuit Judge:

Petitioners challenge a decision of the Third District Court of Appeal which affirmed two challenged summary judgments and three post-judgment orders in aid of execution, reported at 291 So.2d 27 (Fla. App.). The reversal of the post-judgment contempt order, which was entered when the proceedings were automatically stayed by virtue of Florida Appellate Rule 4.-5(c)(6), is not contested. Several issues are raised, the most fundamental of which relates to the election of remedies doctrine. On that point, the District Court’s decision allegedly conflicts with Coronet Kitchens, Inc. v. Mortgage Mart, Inc., 146 So.2d 768 (Fla.App.2d 1962); Rood v. Miami Air Conditioning Co., 193 So.2d 216 (Fla.App.3d 1966); and American Employers’ Ins. Co. v. Piedmont Sewing Supply, Inc., 287 So.2d 111 (Fla.App.3d 1973).

The salient facts are that in November, 1969, respondent, as the conditional seller, and the two corporate petitioners, as conditional purchasers, entered into a series of conditional sales contracts which provided in the aggregate for the conditional sale and purchase of 214 coin-operated copying machines of Olivetti manufacture. Each contract provided for the payment of the purchase price in twenty-four monthly installments with interest, with attorneys’ fees to be awarded to the. respondent in the event of the purchaser’s default. Alleging arrearages in monthly contract installments on the purchase price under the several contracts, respondent in July, 1971, brought suit against the four petitioners herein in a two-count complaint. Count One sought money judgment and attorneys’ fees for claimed past due monthly contract installments. Count Two, sounding in re-plevin, sought repossession of the machines remaining in the possession of the petitioner, plus costs and reasonable attorneys’ fees.

The initial summary judgment awarded respondent the sum of $114,027.04 for past due contract installments on the purchase price of the 214 copying machines. It is alleged that the total purchase price of the copying machines purchased was $225,267.-10 and that there existed a total outstanding balance of $169,196.12 at the time judgment was entered.

The trial judge then held hearings on respondent’s motion for reconsideration of the judge’s previous ruling requiring respondent to elect to pursue either the delinquent installment payments or repossession of the property, but not both. The motion for reconsideration was granted and the previous order was vacated and set aside. At the same hearing and as part of the same order vacating the order requiring the election of remedies, the trial judge determined that no material issue of fact existed as to Count Two of respondent’s complaint, therefore summary judgment was granted respondent for immediate possession of the copying machines.

Writs of execution were issued upon these judgments, judgment levies were made and numerous proceedings in aid of execution were pursued by respondent. All of the various summary judgments and post-judgment orders in aid of execution were affirmed by the District Court with the exception of the contempt order mentioned above.

Petitioners’ primary legal contention is that the respondent’s action in this case in seeking, and then obtaining judgment for the total of the purchase price installments then declared and claimed to be due occasioned an election of its remedies and a waiver of its rights to possession of the 214 machines, and affirmed title in the petitioners. Our attention is directed to Coronet Kitchens, supra, where the Second District Court of Appeal held that, “Any proceeding which treats the relationship of the parties as debtor and creditor necessarily presumes that the title to the property has passed.” 146 So.2d at 770. Petitioners contend that respondent’s election to enforce payment of the past due purchase price installments, even if not for the full purchase price, constitutes “any proceeding” and is just as fatal to petitioners’ later action for repossession as the filing of a mechanic’s lien proved to be in Coronet Kitchens, if indeed not more fatal.

Respondent first questions the jurisdictional basis of this proceeding, contending that there is no real conflict because of the factual distinction produced by the order in this case awarding only past due installments of the purchase price, and not the full purchase price as was the case in the decisions presented for conflict. Alternatively, respondent submits that the Florida Uniform Commercial Code (Code), adopted by the Florida Legislature in 1967, which purportedly abrogates the election of remedies doctrine, is applicable here and supports the decision below.

After oral argument and upon careful consideration of the briefs and the law, it is apparent that there is no direct conflict, hence no basis for our jurisdiction. The cases cited by petitioner all deal with actions for the total compensation owed the party seeking relief, as opposed to a portion of the total as is the situation sub judice. There is a difference. The election doctrine is founded on the premise that a party should not in the course of litigation be permitted to occupy inconsistent positions. Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 So. 435 (1900); American Process Co. v. Florida White Pressed Brick Co., 56 Fla. 116, 47 So. 942 (1908). Thus, where several inconsistent remedies are available the choice of one necessarily infers an election not to pursue the others State ex rel. Van Ingen v. Panama City, 126 Fla. 776, 171 So. 760 (1937). However, the doctrine of election of remedies applies only where the alternative remedies are repugnant and inconsistent. American Process, supra. It does not preclude the use or pursuit of consistent remedies in proper circumstances. McKinnon v. Johnson, 59 Fla. 332, 52 So. 288 (1910). (Restitution proceedings and ejectment are not inconsistent or co-extensive proceedings, but are consistent in cumulative remedies.)

Disputes involving conditional sales contracts have been the source of numerous decisions addressing the election of remedies doctrine. One of the standards is Voges v. Ward, 98 Fla. 304, 123 So. 785 (1929), which held that upon default a conditional sales vendor may elect to sue on the debt or to maintain an action in re-plevin for the property. Once having sought recovery of the sales price, however, the vendor could not thereafter retake possession in replevin. The basis of the election doctrine in this instance is discussed in American Process:

“Where an action is brought for the price of all the goods sold, it is a concession that title has passed, and the vendor may not in general also prosecute an action for the recovery of all the same property upon the theory that the title thereto has not passed from him.” 47 So. at 943-44.

The connecting thread of the law weaving these decisions together is clearly that an action for the entire purchase price of property sold under a conditional sale contract is an irrevocable election to treat the transaction as a sale which passes title to and vests it in the buyer. This vesting of absolute title is therefore inconsistent with a subsequent action for repossession, which is considered a recission of the contract. The key word is that the action for the entire price treats the sale as absolute. A sale is not absolute unless the action is for the entire purchase price. In Commer cial Credit Co. v. Miller, 111 Fla. 554, 149 So. 482 (1933), we held that the assignee of a retain title contract who took possession of the property for purposes of obtaining payment of delinquent installments, and redelivered it to the buyer upon payment, did not forfeit the right to later bring an action for the balance of the purchase price or replevin. The basis of that decision was that payment of the then delinquent installments did not constitute payment in full under the contract. Obviously, anything short of full payment would not have the effect of making the sale absolute so as to vest title in the buyer.

Sub judice we have an action for delinquent installments due on the purchase of numerous machines in addition to the action for repossession. Under Miller, supra, respondent could have brought an action for the delinquent installments, recovered judgment and satisfaction, and then later brought an action for repossession upon the subsequent default by petitioner. Both courses of action accomplish the same result. Under modern decisions based on the Code respondent could repossess the property and sell it, then apply the proceeds to the satisfaction of the purchase price and, if there was a deficiency, sue for the balance. General Motors Acceptance Corp. v. Hurst, 212 So.2d 335 (Fla.App.1st 1968); Swindel v. General Finance Corp., 265 So.2d 393 (Fla.App.1st 1972); contra, Nat’l City Truck Rental Co. v. Southern Mill Creek Products Co., 213 So.2d 261 (Fla.App.2d 1968) (the Court noted, however, that the case was governed by the law in effect prior to the adoption of the Code, hence Voges, supra, controlled, implying a different result under the Code.)

The cases cited by petitioner are confluent rather than in conflict with the decision sub judice. In Coronet Kitchens the vendor lienholder filed a claim of lien against six of eight parcels of property which were the subject of a mortgage foreclosure. In defense of the foreclosure suit, the lienholder cross-claimed and counter-claimed,. alleging that it was the owner, by a retain title contract, of certain kitchen cabinets installed in the residence on each of the six parcels of property, and prayed that it be awarded possession of the cabinets. The Court held that by the retain title contract, the lienholder maintained a position as the owner of the kitchen cabinets and that when it filed its claim of lien, it necessarily elected to treat the title as having been passed to the vendee in the contract, thus barring it from recovering the kitchen cabinets.

In Rood, supra, the Court simply restated the general rule that the plaintiff in a replevin action is never entitled to double recovery of both possession and value. The Court distinguished between an action which proceeds under the alternative method of replevin, the possession of the property remaining with the defendant, and that which proceeds upon the issuance of a writ of replevin. The former entitles a successful plaintiff to a judgment for possession only, while the latter entitles him to a judgment for possession and value, although he must elect to satisfy one or the other, but not both. The case is clearly distinguishable by the fact that the plaintiff sued for full value of the property, not merely a portion thereof.

American Employers’, supra, simply held that on default by a conditional vendee, where one or more installments have been paid, the conditional vendor may not sue for the full purchase price, but may repossess the property or sue for the balance of the purchase price. There is no mention of an action for delinquent installments only.

The remaining issues concerning the procedure and entry of the summary judgments are without merit and present no basis for conflict jurisdiction.

Having concluded that no conflict has been demonstrated, the writ of certiorari previously issued is discharged.

It is so ordered.

ADKINS, C. J., and BOYD and OVER-TON, JTJ., concur.

ROBERTS, J., concurs only in judgment discharging writ.

      . In a prior appearance of this case before this Court, Encore, Inc., v. Olivetti Corp., 277 So.2d 263 (Fla.1973), we noted that after repossessing the 214 machines, the respondent sold 156 of them for approximately $90,000, with the remaining 58 machines having a market value of at least $35,000. Since the respondent apparently could have sold the remaining 58 unsold machines for their market value and thereby recover a satisfaction greater than his money judgment before the pending appeals were resolved, we ordered the entry of a supersedeas and stay of the supplementary proceedings pending the appeal.

      . Although our conclusion that no conflict has been demonstrated disposes of this matter, we note that the Code has apparently abrogated the doctrine of election of remedies. See Swindel, supra. For example, F.S. § 679.9-504 provides that a secured party after default may sell the collateral pledged in payment of the debt and, unless otherwise agreed, the debtor is liable for any deficiency. Moreover, the Code has explicitly stated that the location of title of the property, which is the basis of the election doctrine, no longer controls the rights and remedies of the parties under the Article on secured transactions. (F.S. § 679.9-102 clearly provides that a conditional sale agreement gives rise to a security interest which is governed by F.S. Ch. 679.) The comments to F.S. § 679.9-101, F.S.A., declare: “This Article does not determine whether ‘title’ to collateral is in the secured party or in the debtor and adopts neither a ‘title theory’ nor a ‘lien theory’ of security interests.” Again, F.S. § 679.9-202 states: “Each provision of this chapter with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” Therefore, pursuant to the Code, an assertion of the right to possession under F.S. § 679.9-503, or of a right to foreclose under F.S. § 679.9-501(1) could be made regardless of the location of title. The comments to F.S. § 679.9-501, F.S.A., opine that subsection 1, which provides that the rights and remedies referred to therein are cumulative is a departure from the election of remedies rule.

        See also 29A, Fla.Jur. Secured Transactions, § 312 at 35 (discussion of the Code’s dispensation with the necessity of electing which remedy to pursue with respect to conditional sales).
      The Article on sales, F.S. Ch. 672, also addresses the election doctrine. See 28 Fla.Jur. Sales, § 178 at 642. Where Ch. 679 deals with the right of a secured party upon default, Ch. 672 deals with the rights of an unsecured party upon default. F.S. § 672.2-703 catalogs the seller’s remedies against the buyer upon default. Although this section rejects the election doctrine (see comments to F.S. § 672.2-703, F.S.A.), an action for reclamation of the goods sold on credit when the buyer defaults is apparently not available to the seller, except in limited situations where the buyer is insolvent (F.S. § 672.2-702).


author: MUSZYNSKI, Circuit Judge. ENGLAND, Justice BOYD, Justice

text:
    William Arthur SCOTT, Petitioner, v. The STATE of Florida, Respondent.
    No. 46777.
    Supreme Court of Florida.
    Jan. 15, 1976.
    Phillip A..Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for petitioner.

      Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for respondent.
   MUSZYNSKI, Circuit Judge.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Third District, that its decision (Scott v. State, 305 So.2d 289) is one which involves a question of great public interest. See Fla.Const., art. V, § 3(b)(3), F.S.A.

The question certified by the District Court of Appeal is:

“Whether a trial judge who previously sentenced a defendant to a term of years and upon a new trial, after the defendant is put on probation and said probation is revoked, may he then sentence him to a term in excess of the original term of incarceration”?

The District Court of Appeal, by a vote of two to one, answered the certified question in the affirmative. Although this Court is free to decline to entertain this cause, Zirin v. Charles Pfizer & Co., 128 So.2d 594 (Fla.1961), we prefer to accept jurisdiction and adopt the majority opinion of the District Court of Appeal as the opinion of this Court. Therefore, we hold that a trial judge who previously sentenced a defendant to a term of years less than the maximum allowable by law, may, after a new trial wherein defendant is placed on probation, impose for violation of the terms of probation, any sentence up to the maximum which could have been originally imposed.

In addition to answering the certified question in the affirmative, we affirm the District Court’s disposition of the other issue involved in its decision.

It is so ordered.

ADKINS, C. J., and ROBERTS, J., concur.

ENGLAND, J., concurs specially with an opinion.

BOYD, J., dissents with an opinion.

ENGLAND, Justice

(concurring specially)-

I concur in the Court’s decision for the reasons expressed in the majority opinion of the Third District Court of Appeal.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion for three reasons:

1. North Carolina v. Pearce establishes a Federal standard which controls here:
“In order to assure the absence of such a motivation [vindictiveness], we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (emphasis supplied)

In my opinion, this standard is not superseded by Section 948.06, Florida Statutes, which, upon breach of probation, authorizes the trial court to “impose any sentence which it might have originally imposed before placing the probationer on probation.” Reading this statute in light of Pearce, supra, the maximum sentence which the court may impose in a new trial is the sentence previously given, unless aggravating circumstances not present in the original trial are shown. The crucial question is whether, in finding aggravating conditions not present in the first trial, the court can consider post-trial misconduct, such as violation of probation. As observed by Judge Carroll in his dissenting opinion sub judice, there was no such showing made here.

2. In the instant revocation of probation and resentencing hearing the Assistant Public Defender had never heard of Petitioner or his case until five minutes before the trial began. Even Perry Mason could not give the representation granted by the Constitutions on such short notice. If the Public Defender failed in his duties, he should be disciplined, but his client should not suffer the consequences of his failure to send a competent attorney, one acquainted with the case. Even though this was a probation revocation hearing rather than a trial, Petitioner was entitled to effective assistance of counsel.

3. The evidence adduced at the probation hearing might have authorized conviction in a criminal trial, but the record shows that the court’s disposition here violated Petitioner’s constitutionally guaranteed right of due process by disregarding too many rules of procedure, such as the one against hearsay evidence.

For the above reasons I dissent. I would answer the certified question in the negative and order a new hearing on probation violation with sentence not to exceed twenty years unless aggravating circumstances existing at time of first trial and not brought to that court’s attention are shown.

      . 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

      . Nelson v. State, 274 So.2d 256 (Fla.App.1973).

      . Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).


text:
    THE FLORIDA BAR. In re Horace D. GOODE, II.
    No. 47951.
    Supreme Court of Florida.
    Dec. 4, 1975.
    Hobart O. Worley, Jr., Pensacola, for The Florida Bar, complainant.
   PER CURIAM.

This disciplinary proceeding is before us on complaint of The Florida Bar and Report of the Referee. No petition for review has been filed by the respondent.

Upon consideration of the pleadings, exhibits, and evidence, the Referee found as follows:

“A. The Respondent did receive three deeds from Willie L. Leftwich, Esq., who requested Respondent to obtain the signature of Mrs. Tencie Wilkins on the deeds and then return them to Mr. Left-wich with a bill for services rendered. Respondent never did get these deeds signed and did not return them to Mr. Leftwich, although they were eventually returned through the attorney for the Respondent to a member of the Griev-anee Committee of The Florida Bar of the First Judicial Circuit in order to purge the Respondent of contempt of the Supreme Court subsequent to entry of an Order of Contempt and Commitment by M. C. Blanchard, Circuit Judge of Es-cambia County, Florida, on August 15, 1974.
“B. During the year 1970 the Respondent received nine United States savings bonds with face value of $25.00 each from Helen Pugh, now Helen Pugh Mathis, which were originally issued in the name of J. H. Mitchell, and the Respondent failed and ultimately refused over a period of approximately four years to take any action to have these bonds transferred in a proper manner to Helen Pugh Mathis as the'owner. The said Helen Pugh Mathis made numerous phone calls attempting to contact the Respondent and wrote at least one letter during that period of approximately four years, but no action was taken on the work which she had requested Respondent to do for her, and no communication had with her during the last several years by Respondent and she did not receive her bonds back until subsequent to August 14, 1974, after Respondent was held in contempt and ordered committed by the Circuit Court of Escambia County, Florida, as previously mentioned. In order to obtain his release from jail, the Respondent through his attorney delivered the bonds to a member of the Grievance Committee of the First Judicial Circuit of The Florida Bar and same were returned to Mrs. Helen Pugh Mathis. Nothing appears to have been done to them in order to get them properly transferred and reissued in her name.
“C. The Respondent failed and refused at all times pertinent to these proceedings and the grievance proceedings upon which this disciplinary matter is brought to appear and be heard in person or by counsel and has offered no excuse whatsoever for his failure to obey the witness subpoenae and the notice of hearings served upon him pursuant to the Integration Rule of The Florida Bar.”

The Referee recommends that respondent be found guilty as charged in the complaint and specifically that he be found guilty of violations of his oath as an attorney, of Article XI, Rule 11:02(2) (3) (a) of the Integration Rule and of Disciplinary Rules 6-101 (A) (3), 7-101 (A) (2) (3), 9-102(B)(4) and 1-102(A)(1) of the Code of Professional Responsibility, and recommends that he be suspended from the practice of law for a period of six (6) months and thereafter until he shall satisfactorily prove his rehabilitation in a reinstatement proceeding.

The findings and recommendation of The Florida Bar are approved and respondent is hereby suspended from The Florida Bar for six months and thereafter until he shall satisfactorily prove his rehabilitation.

Execution is hereby directed to issue for costs against respondent in the amount of $208.10.

It is so ordered.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and HATCH-ETT, JJ., concur.


author: SUNDBERG, Justice:

text:
    AMERICAN SIGHTSEEING TOURS, INC., Petitioner, v. William T. MAYO et al., Respondents.
    No. 46889.
    Supreme Court of Florida.
    Jan. 21, 1976.

      Phillip Schiff, of Dubbin, Schiff, Berk-man & Dubbin, Miami, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, of the Florida Public Service Commission; and John P. Bond, Miami, for respondents and intervenor, A-l Bus Lines, Inc.
   SUNDBERG, Justice:

There is before us for review by petition for writ of certiorari Order No. 11873 of the Florida Public Service Commission (the Commission), dated January 22, 1975, which denied petition for reconsideration directed to Order No. 11756, dated November 4, 1974, filed by petitioner, American Sightseeing Tours, Inc. (American). Jurisdiction is vested in this Court pursuant to Article V, § 3(b)(3), Florida Constitution, and § 350.641, Florida Statutes.

In December, 1971, A-l Bus Lines, Inc., the intervenor-respondent, (A-l) filed an application with the Commission seeking an extension of its Certificate of Public Convenience and Necessity No. 974 so as to authorize a “1-day” round trip sightseeing service on regular routes and schedules from points in Dade and Broward Counties to Walt Disney World. After a series of hearings, the Commission granted the application and American filed a petition for writ of certiorari in this Court (Case No. 43,321). Case No. 43,321 was consolidated with a certiorari petition filed by Greyhound Lines, Inc. The consolidated proceedings resulted in denial of the petition by Greyhound Lines, Inc.; however, the Court granted the petition filed by American and quashed the Commission’s order granting A-l’s application, remanding the matter to the Commission to “hold a public hearing and make appropriate findings as to whether American failed to provide service and facilities reasonably required by the Commission on the route sought by A-l”. Greyhound Lines, Inc., Greyhound Lines-ED v. Bevis, 294 So.2d 65 (Fla.1974).

In compliance with our mandate a hearing was held before an examiner for the Commission in Miami, Florida, on July 9, 1974. The parties were provided the opportunity to present evidence and to examine witnesses. On July 26, 1974, the examiner issued his recommendation that A-l’s application for extension of its certificate be granted on the basis that its service was different from that offered by American. The evidence disclosed that American’s tour busses feature a driver-tourguide while A-l offers both a driver and a tour-guide who serves a continental breakfast on the bus and personally conducts the passengers on their tour of the various exhibits at Walt Disney World. It is also clear that at no time prior to notice of the original hearing on A-l’s application had American initiated one-day tours to Walt Disney World, but only commenced one-day tours the day preceding the original hearing on A-l’s application.

American filed exceptions to the examiner’s findings and conclusions. Oral argument was granted and on November 4, 1974, the Commission issued its Order No. 11756 granting the extension of A-l’s Certificate of Public Convenience and Necessity to operate as a sightseeing carrier from points in Dade and Broward Counties to Walt Disney World Theme Park on regular routes and schedules. The Commission found, in its order, that American had had an opportunity to commence one-day tours to Walt Disney World but had offered only two-day tour service until A-1 had filed an application and hearing was noticed thereon. On November 18, 1974, American filed a petition for reconsideration which was denied by the Commission in Order No. 11873, dated January 22, 1975, with one commissioner dissenting.

This petition for certiorari ensued. ■ In addition, American filed a petition to compel compliance with the mandate of this Court, alleging that at the July hearing the examiner erred in not focusing on the issues spelled out by the Court in its earlier decision, i.e., whether American had failed to provide service and facilities reasonably required by the Commission on the route sought by A-l. After oral argument the petition to compel compliance was denied on March 4, 1975.

Petitioner in the instant case asserts, essentially, that the Commission has departed from the essential requirements of law by failing to make a determination that American has been given an opportunity and failed to provide service and facilities reasonably required by the Commission. We disagree.

The pivotal point is whether or not the opportunity to which American is entitled must be determined from the period of time it commenced service to Walt Disney World under its temporary and permanent authority up until the date upon which A-l filed its application, or whether it must be granted a present opportunity to demonstrate its ability to provide the service which the Commission has determined to be necessary and in the public interest. American asserts that § 323.03, Florida Statutes, requires the latter. Unquestionably American is within the category of “sightseeing carrier” as defined in Commission Rule 25-5.45(1) and was therefore entitled to notice and to participate in the hearing upon A-l’s application. At such hearing it is entitled to contest whether the service applied for is required by public convenience and necessity. If such a finding is made by the Commission the protestant is entitled further to assert that it has not failed to provide such service and facilities as reasonably required by the Commission. This Court recognized such rights in American by our decision in Greyhound Lines, Inc., Greyhound Lines-ED v. Bevis, supra. In that decision the Court considered that:

“. . . as holder of a certificate for sightseeing service over the routes sought by A-l, American had standing to protest A-l’s application and the Commission was bound to make a determination that American had been given an opportunity and failed to provide service and facilities reasonably required by the Commission, regardless of the fact that American’s application for pick-up points had not yet been approved. This the Commission did not do and so erred. Alterman Transport Line v. Carter, supra. [Fla., 88 So.2d 594].” (Emphasis supplied)

By virtue of the underlined language quoted above, American concludes' that it is to be afforded a present opportunity to demonstrate its willingness and ability to provide the service applied for by A-l. However, it will be noted that the holding in Greyhound Lines, Inc., Greyhound Lines-ED v. Bevis, supra, relied on the authority of Alterman Transport Line v. Carter, 88 So.2d 594 (Fla.1955). The original decision in Alterman, supra, written by Chief Justice Mathews, did support American’s contention. However, on rehearing the Court, speaking through Justice Hobson, expressly rejected the proposition that the Commission must first require a particular type of service before a protestant may be found to have failed to provide such service. Chief Justice Mathews, in the original opinion, relied on the case of Redwing Carriers v. Mack, 73 So. 2d 416 (Fla.1954). On re-hearing in Alterman Mr. Justice Hobson opined:

“The rule of the Redwing Carriers case must be restricted to the facts which were there before us, as we have outlined them above. Under the last sentence of our statute, which we have quoted, a certificate should not be granted where there is existing adequate service over the route applied for and, if inadequate, unless the existing carrier has been given an opportunity to furnish such additional service as may reasonably be ‘required’ by the commission. The commission need not first require, or formally require, such service. A new certificate can be granted by the commission on proof of public convenience and necessity therefor if the existing certificate holder has had an opportunity to provide the service and has failed to do so, and the service is within the jurisdiction of the commission reasonably to be required. This interpretation of the statute offers some protection to existing franchise holders, but at the same time permits the commission to be guided in all cases by its polar star: the-public convenience and necessity. When a new certificate is applied for, the certificated carrier has the burden of explaining why it has not met the need for the new service, if any such need there is, and in the ordinary case the failure of existing carriers to meet reasonable requirements, mentioned in the last sentence of F.S. Sec. 323.03(3), F.S.A., should be considered as of the time of application for the new permit, and not at some future date.”

In that it cannot be said that there was insufficient evidence to support the Commission’s conclusion that the service applied for by A-l is necessary and in the public interest, nor that there is insufficient evidence to support its conclusion that American had failed to provide such service and facilities under the test oí Alterman Transport Line v. Carter, supra, we cannot conclude that the Commission “departed from the essential requirements of law in its orders here under attack. Accordingly, the petition for certiorari herein is denied.

It is so ordered.

ADKINS, C. J., and ROBERTS, ENGLAND and HATCHETT, JJ., concur.


author: HATCHETT, Justice.

text:
    John P. BOWERS, Petitioner, v. Aurora B. BOWERS, Respondent.
    No. 45125.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied Feb. 25, 1976.
    Robert W. Elrod of Montgomery, Buschman, Elrod & Showalter, Jacksonville Beach, for petitioner.
    John F. Fannin of Milan & Wilbur, Jacksonville, for respondent.
   HATCHETT, Justice.

On April 2, 1973, Aurora B. Bowers filed in circuit court for dissolution of the marriage she had contracted in Massachusetts with John P. Bowers on November 22, 1969. No. 73-2902 CA (4th Cir.). The wife’s petition for dissolution was met with a motion to dismiss. At the time of the marriage, petitioner, who was and still is a Naval officer, was stationed at Key West. The first home the couple established was in Key West, and their second home was also in Florida, at Mayport. The husband testified, however, that he never intended to make Florida his residence, and considered Norfolk, Virginia, his permanent residence. The circuit court concluded that the husband had never established residence in Florida, notwithstanding the length of his stay, because he lacked the requisite intent.

In support of the motion to dismiss, the husband argued that his wife was presumed to have the same (Virginia) residence as himself and, therefore, could not meet the residency requirement laid down by Fla.Stat. § 61.021 (1973). The circuit, court granted the motion to dismiss, but, on appeal by the wife, the order of dismissal was reversed by the District Court of Appeal, First District. 287 So.2d 722. After that court denied petition for rehearing, the husband petitioned here for writ of certiorari, which was granted on August 28, 1974, Mr. Justice Roberts dissenting.

In papers filed in this Court, -the parties’ counsel represent that the husband initiated divorce proceedings in Virginia during the pendency of the appeal in the First District; that the wife made a general appearance in Virginia; and that a final divorce decree was issued by a Virginia court on March 27, 1974, in accordance with a stipulation entered into by the parties. The record reflects no stay of the Florida order of dismissal, and at no time has either party questioned the jurisdiction of the Virginia court. In these circumstances, the final Virginia decree is entitled to full faith and credit, pursuant to United States Constitution, art. 4, § 1, Kline v. Hayman, 309 So.2d 242 (Fla.App. 2d Dist.1975); Stewart v. Stewart, 115 Fla. 158, 155 So. 114 (1934); Annot. 58 A.L.R.2d 701 (1958), and the effect of the Virginia decree is to moot the present cause. Newton v. Newton, 245 So.2d 45 (Fla.1971) (“A divorce decree of any state is presumed valid on its face and until same is proved to be invalid serves as a bar to successful prosecution of another action for divorce in this State.” At 46.)

The husband, petitioner here, filed a motion to dismiss the appeal for mootness in the District Court of Appeal; the wife opposed that motion but has filed here a motion to quash petition for certio-rari on the basis of the Virginia decree. The First District properly denied the husband’s motion to dismiss for mootness because at that time no final foreign judgment had been entered. Since then, however, the Virginia court proceedings have eventuated in a final divorce decree, to which we are bound to give full faith and credit. Newton v. Newton, supra (“every state is required to recognize ... final decrees ... of the courts of all other states.” At 46). Accordingly, the writ of certiorari previously granted in this cause is discharged, and the petition is dismissed as moot.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD and OVERTON, JJ., concur.