author: HARRIS, Presiding Judge.

text:
    Anna CONSALVO, alias v. STATE.
    3 Div. 813.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied May 1, 1979.

      Steven H. Gifis, Princeton, N. J., for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was charged in a five-count indictment with possession of controlled substances in violation of the Alabama Uniform Controlled Substances Act. Counts one through five of the indictment alleged, respectively, felonious possession of heroin, secobarbital, amobarbital, chlordiazepoxide, and diazepam; controlled substances within the Act. Appellant, in her own proper person, and by and through her attorney, executed and filed a written waiver of arraignment and entered a plea of not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty on all five counts. Appellant was adjudged by the Court to be guilty in accordance with the verdict of the jury and was sentenced to a term of fifteen years in the penitentiary. Appellant gave notice of appeal, bond was set in the amount of $50,000.00 and new counsel of her choosing represents her on this appeal.

Following an evidentiary hearing, appellant’s motion to suppress evidence as the product of an illegal search was denied. The trial court found that probable cause and exigent circumstances existed to justify the warrantless search. Appellant moved to exclude the State’s evidence on the grounds of unlawful search and seizure and failure to prove possession of heroin. The motion was denied. Appellant’s request for the affirmative charge was refused and appellant timely filed a motion for a new trial.

The testimony of Corporal David Green of the Montgomery Police Department shows that on May 17, 1977, he received a phone call from a confidential informant who stated that a black male was staying with a white female at the TraveLodge Motel on Federal Drive and was dealing heroin. The informant telephoned Green again on May 18 and said the black male’s name was Wayne, that he “had personally observed a quantity of white heroin in Wayne’s possession,” and that Wayne had told him the white female’s name was “Ann or Annie.” The informant also told Green that Wayne had given him some heroin, that he has used it the night before and it made him sick; and that he had observed Wayne driving a silver Thunderbird with Georgia license number LCC 744. The informant stated that Wayne told him there was “a lot more heroin back at the motel room with Ann or Annie.”

Following the conversation, the informant brought the substance he had received from Wayne to Corporal Green, who conducted a field test which revealed the presence of heroin. Another officer, Captain Hudson, informed Green that he had received substantially the same information from a confidential informer that morning. The evidence showed that Corporal Green had never received information from this informant before, and that he was paid after he turned the heroin over to police.

A telephone call by Green to the manager of the TraveLodge Motel on Federal Drive revealed that a white female named Anna Conte was registered in Room 105 with two other white females. Ms. Conte had also paid for a room occupied by a black male. The vehicle registered by Ms. Conte when she checked in was a silver Thunderbird with Georgia license plates LCC 744. The manager told Green that the black male had left in the Thunderbird but that appellant and the two white females were still registered in Room 105.

In an attempt to make a police drug “buy” from the occupants in Room 105, Detective Machael Farrier was wired for audio-transmission and went to the TraveL-odge Motel in an unmarked car. Corporal Green, along with Detective Nichols, also went to the TraveLodge in another vehicle which contained a surveillance monitor to receive transmissions from Farrier. Green testified that, from the car in which he and Detective Nichols were sitting, he saw Farrier knock on the door to a room in the vicinity of Room 105. An inaudible response was heard over the monitor and Farrier went back to his car. In a moment a white female (appellant) came out, walked toward the car in which Farrier was sitting, and got in. In order to improve the transmission, Officers Green and Nichols drove to the back of the motel. They heard a woman’s voice questioning Farrier at length about how he knew “Wayne”.

At this point another white female, later identified as Holly Golden, walked around the corner of the motel, past the car in which Nichols and Green were seated. She looked at them as she walked by. Green testified that, based on her appearance, they suspected the woman was one of the white females with appellant and that she had spotted them as police. The officers moved the car to the north end of the motel and Green got out and walked back to observe Golden. The officers decided to watch her and try to prevent her from entering Room 105. She walked back in the direction from which she had come and went toward Room 105. When Golden reached the door, she grabbed the doorknob and twisted it, but apparently the door was locked. After knocking, she was admitted by someone inside the room and slammed the door shut. Green ran to the door and tried to open it. It was locked. He was joined by Detective Nichols and both officers began beating on the door shouting “police officers, open up.” This was repeated three or four times with no response. Then the officers heard water running in the room. Detective Nichols tried to kick the door down but was unable to do so. Entrance into the room was gained through an open window. A white female, later identified as Dee Dee Scaloni, was standing in the bedroom. She took a knife and started toward the officer in the bathroom but the knife was taken from her. Holly Golden was found in the bathroom flushing the toilet. Water was running in the bathtub. White powder which was identified as heroin was found on the bathroom fixtures, on the floor and in the air. Golden and Scaloni were advised of their rights and placed under arrest. The defendant was brought into the room by Detective Farrier, also advised of her rights and placed under arrest.

When appellant entered the room she grabbed for a gold clutch purse which was located inside a larger black purse. When asked why she reached for the gold clutch purse, she stated that it was not hers and that it did not belong in her purse. Detective Nichols opened the purse and found that it contained needles, syringes, a heroin cooker, and a bottle containing pills and capsules.

Detective Farrier testified that, when he was in the car outside Room 105 with appellant, he told her that he wanted to buy a $20.00 bag of heroin. The appellant stated that $20.00 bags were only samples and that they did not sell those. Farrier told her that he had $200.00 and wanted to buy whatever that would buy. Appellant stated that that wouldn’t buy much. At this point in the conversation Detective Green ran up to Room 105 and started knocking on the door. Detective Farrier asked appellant what was going on. She replied that she did not know, and stated, “It’s the cops, let’s get out of here.” Farrier then informed her that he was a police officer and took her into Room 105, where she was arrested for possession of heroin.

The State Toxicologist testified that he performed a chemical analysis on the substances recovered at the scene and that this analysis revealed the presence of heroin. A total of 105.8 grams of 10% pure heroin was recovered, having a street value of approximately $175,000 to $250,000. He further testified that the pills and capsules found in the bottle in the gold clutch purse contained secobarbital, amobarbital, chlordiazepoxide, and diazepam, controlled substances, as named in Counts II-V of the indictment.

Appellant contends that the evidence admitted at the trial was the product of an illegal search and should have been suppressed. Specifically, appellant urges that the trial court erred in finding that exigent circumstances, coupled with probable cause, existed to justify the warrantless search. Our Supreme Court has recognized the existence of exigent circumstances coincidental with probable cause as an exception to the Fourth Amendment’s warrant requirement. Daniels v. State, 290 Ala. 316, 276 So.2d 441. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.

Probable cause to believe that appellant possessed heroin was based on information received from an unknown informant. In order to form a sufficient basis for probable cause, the underlyipg circumstances must be shown both from which the informant concluded the narcotics were where he claimed them to be and from which the officer concluded the informant was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Although that case involved probable cause to issue a search warrant, the constitutional standard is the same for warrantless searches as for issuance of search warrants. Aguilar, supra; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Corporal Green testified that his informant told him he had “personally observed a quantity of heroin” in the possession of appellant’s companion, Wayne, at the TraveLodge Motel and was told by Wayne that there was more at the motel. He was even given some of the heroin, which he turned over to police. The personal and recent observation of criminal activity by an unidentified informant is an indication of the reliability of the information given to police. U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. In this case, the informant not only observed criminal activity, but was a participant, in that he was also in possession of the heroin. The admission of illegal possession of heroin made to Corporal Green, buttressed by actual delivery of the heroin, constituted a declaration against the penal interest of the informant.

In Harris, supra, the Court said, at 583, 91 S.Ct. at 2082:

“Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a ‘break’ does not eliminate the residual risk and opprobrium of having admitted criminal conduct.”

Also, in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242, it was held that statements made to officers which were against the penal interest of the de-clarant carried their own indicia of reliability and were sufficient in themselves to warrant consideration as evidence in a suppression hearing.

Appellant relies heavily on the fact that Corporal Green had never before received information from this informant, and argues that his reliability could not therefore be shown. The prior, proven reliability of an informant is, of course, an indication of the present reliability of his information, as well as of his credibility. It is not, however, necessary when other indicia, sufficient to show probable cause, are present. U. S. v. Harris, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Glenney v. State, 281 Ala. 9, 198 So.2d 293.

This Court recently considered decisions of the United States Supreme Court and appellate courts of this State on this point, Dudley v. State, Ala.Cr.App., 342 So.2d 437, holding that, when the information furnished by an informant is demonstrated to be reliable as being against the penal interests of the declarant, there is no necessity to further show the informant to be credible. Aguilar, supra; Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. denied 291 Ala. 773, 285 So.2d 506, cert. denied 416 U.S. 939, 94 S.Ct. 1940, 40 L.Ed.2d 289.

Finally, in addition to the informant’s statements being against his penal interest, there was independent corroboration by Corporal Green himself. He telephoned the TraveLodge Motel, whereupon the manager confirmed the report that a black male driving a silver Thunderbird with Georgia license LCC 744 had registered, accompanied by white females. The informant’s “Ann or Annie” was the appellant, registered as Anna Conte. Ms. Conte had paid for Wayne’s room and registered the Thunderbird in her name. This information, coupled with the informant’s statement that “Annie had even more heroin at the motel,” adequately served to corroborate the “tip” and to connect appellant to Wayne and the heroin. Further verification was obtained from the monitored conversation between appellant and Detective Farrier at the motel, and the information received by Captain Hudson.

Probable cause having thus been shown, the question remains whether exigent circumstances existed to create an exception to the warrant requirement. The officers in this case were confronted with the unforeseen situation of having an attempted police drug buy endangered by appellant’s companion, Holly Golden, who possibly “spotted” Detectives Green and Nichols. While trying to get Ms. Golden to open the door to Room 105, the officers heard the toilet in the room flush. Believing the heroin was being destroyed, they entered the room through a partially opened window, where they found Holly Golden attempting to flush the heroin down the toilet.

The exigency of the impending destruction of evidence will justify a warrant-less search if probable cause coexists. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59; Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758. Even if the operation was poorly planned as alleged by appellant, there is nothing in the record to indicate that the officers deliberately “bootstrapped” themselves into a search of the premises under the guise of the attempted buy. Once the officers were surprised by the appearance of Holly Golden and the threat of recognition, the planned buy was aborted in an effort to prevent Ms. Golden from destroying the heroin.

Probable cause and exigent circumstances existed to justify the warrantless search and seizure, and no error is found in the trial court’s finding. See also Golden v. State, Ala.Cr.App., 361 So.2d 1128, wherein this Court upheld the search and seizure based upon the identical facts in the companion case to this one.

Appellant did not testify, nor did she offer any evidence in her behalf.

A careful examination of the other issues presented by appellant reveals them to be without merit.

We have carefully searched the record for errors injuriously affecting the. substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Ex parte Anna CONSALVO.
    78-532.
    Supreme Court of Alabama.
    June 22, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Darryl STRUGGS v. STATE.
    4 Div. 652.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      George E. Trawick, Ariton, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Darryl Struggs was charged with rape, tried by a jury in Pike County, Alabama, found guilty and sentenced to fifteen years imprisonment.

On July 7, 1977, at approximately 9 o’clock in the evening, the victim saw the appellant, Darryl Struggs, at the “schoolhouse” in Brundidge, Alabama. She stated that, at the time, she was on her way to the tennis courts to find her sister and baby and that the appellant called to her and then grabbed her by the arm. According to the victim, the appellant was sitting on the driver’s side of his car and had reached through the window on the passenger’s side and grabbed her arm. She stated that, because she was afraid of him, she got into his car.

The victim testified that Struggs then drove her to a wooded area and parked. The appellant told her to kiss him and, when she refused, he “started hitting [her] in [her] back and . . . face.” She explained that she held her mouth closed so that Struggs could not kiss her, and, after he hit her, he told her to get into the back seat of the car. The appellant then started “pulling [her] clothes off. .” He first pulled her “top off” over her head and then “jerked my shorts and a button popped off, and after he jerked my shorts off, he took my pants down.”

The victim said she was told to lie down in the back seat and the appellant then held her “down by [her] wrists” and had intercourse with her. She stated that when she screamed he put his “hand over [her] mouth.” Further, she said that, after having intercourse in the back seat, the appellant told her to get out of the car, and he again had intercourse with her. She testified that she was then told to put her clothes on and was driven to a place near her home, where the appellant “put me off between Linda Terry’s and Miss Annie B. Hollis’s house.”

According to the victim, she did not go to her home because she was “too scared.” She said that, instead, she went back to the school looking for her boy friend, and that, after talking with him they then went to her house where she told her mother and her mother called the police. Thereafter, the victim went to the police station, made a statement and was then taken to the hospital where she was examined by a doctor.

According to the victim’s estimate, “about fifteen minutes” had elapsed between the time she left the appellant’s ear and the time that she arrived home. She stated that she “did not want” nor did she at anytime consent to the intercourse with the appellant and also stated that she was “scared of him.”

The testimony of the doctor who examined her indicated that there was “no evidence ... of trauma ... bruises . . . scrapes tenderness [or] tears of tissue.” He did say that a sample was taken from the vaginal area and submitted to the laboratory, but he did not testify to the results of any tests that were conducted.

Officer Reeves, of the Pike County Sheriff’s Department, testified that he interviewed the appellant on the evening of July 7, 1977, and, after advising him of his rights, took a statement from him. Reeves said that he also took a statement from the victim on that evening. Officer Reeves stated that he had received written consent from the appellant to search his car and that, during the search, he found a button in the backseat which was later shown to have come from the shorts worn by the victim.

The defendant took the stand in his own behalf and stated that when he first asked the victim to go for a ride with him she stated that she was “scared” of him but that later she got into the car. He admitted having intercourse with the victim in the backseat of the car but said that he did not take her clothes off. He said that he had intercourse with her only once and stated that she told him “she hadn’t took her birth control pill” and “she didn’t want to have another baby.” Further, he stated that she also told him that she did not want her boy friend to “find out.”

The appellant testified that, after having intercourse, he drove her back to the housing project where she lived. He denied grabbing her arm, threatening her or hitting her. He also denied putting his “forearm in her mouth,” and stated that during intercourse he did not “hold her hands” nor did she hit, slap, kick or scratch him during the act.

During cross-examination, he admitted that, after the victim got into the car, she started crying, and stated that, just prior to the act, she told him to “go on and get it over with so she could go find her baby.” Further, he said that he had known the victim all of his life but had never dated her.

I

Unlawful carnal knowledge of a woman by a man forcibly and against her will is rape. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652. However, the force required to constitute the offense need not be actual and may be constructive or implied. Shepherd v. State, 135 Ala. 9, 33 So. 266; McQuirk v. State, 84 Ala. 435, 4 So. 775.

Cole v. State, 19 Ala.App. 360, 97 So. 891 states:

“The law does not require that the degree of force used must be such as to place the woman .under the reasonable apprehension of death, or bodily harm, as to overpower her will. The offense is complete if the female is under such duress as that the act is accomplished against her consent.”

The appellant, in the case at bar, had sexual intercourse with the victim against her consent and by force. Although there was no weapon used and no evidence of any bruises, scratches or injury to the victim, there was testimony to the effect that she was “scared” of the appellant and that the intercourse occurred after she had been struck in the face and on the back. Under these circumstances, it is our judgment that the force used was sufficient and that the consummation of the unlawful intercourse was rape.

Under the evidence recited above, we hold that the evidence was sufficient to present a jury question as to the guilt or innocence of the defendant on the charge of rape. Thomas v. State, supra. The conflict in the testimony at trial presented a question for the jury. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616; Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Miller v. State, 38 Ala.App. 593, 90 So.2d 166.

II

The appellant, in his brief, has challenged the constitutionality of Act No. 251, 1977 Alabama Acts, Regular Session. He maintains that this case should be reversed because the trial judge applied the Act when he instructed the attorney for appellant that the court “would not permit any question as to [the victim’s] past sexual conduct with other people.”

We have searched the record and find that the only reference to the Act in question occurred after the defense attorney had asked the victim the following question:

“Q. Did you tell Darryl Struggs that the reason you didn’t want to do it was that you didn’t take your birth control pill—
“MR. BARR: [the prosecuting attorney], Your Honor, I am going to object to this and I would ask that we go outside the presence of the jury if Mr. Dickert persists.
“MR. DICKERT: I will be glad to argue it anywhere.”

The court, at that point, recessed the jury for ten minutes, and the following occurred:

“THE COURT: Let the record show that we are out of the presence and hearing of the jury.
“MR. DICKERT: The complaining witness is in here. I don’t know if it matters whether she is here or not.
“MR. BARR: I am arguing under this act — I think everybody realizes it, because I think the question was too complete and it probably goes through the birth control stage, and you are going into to me, what this act prohibits. You are going into morals, and the sexual background of the victim.
“MR. DICKERT: I will be glad to state my position wherfyou get through stating yours.
“THE COURT: Before you state your position, let me read it into the record, of course, so you will know where we are — I am reading from. Subsection ‘B’ of Section 25, 251, Regular Session, 1977. Of course you are aware it says in any prosecution of a crime, sexual conduct evidence relating to the past sexual behavior of the witness shall be introduced if the Court following the procedure prescribed in paragraph ‘c’ finds that such past sexual behavior directly involved the participation of the accused. And it goes on here—
“MR. BARR: Your Honor, may I say two things? The State did not request an in camera hearing Second, the birth control pills and any of its ramifications has nothing to do with the past sexual behavior of the witness with the accused and by this statute its not admissible.
“MR. DICKERT: Your Honor, I will admit that I did not ask for an in camera outside the presence of the jury because I considered the statement that I asked her about to be a part of the res gestae, a part of the event, itself, which was brought to my attention by a copy of a statement that was made by the defendant in this case to the officers, which I felt would be introduced against my client. And I am merely cross examining her about what happened that day or that night. Now, I don’t think that this has anything to do with her past sexual performance or whatever she had done in the past. It had to do with what she told him that night.
“THE COURT: All right. What specifically are you asking her?
“MR. DICKERT: I asked her if whether or not she made this statement, that she didn’t take her birth control pill today, and — I was about to ask her if — part of that statement was that she didn’t want another baby and that that was the reason that she gave him that she didn’t want to have sex that night. Now, if that requires an in camera hearing out of the presence of the jury, I will be happy for you to — admonish them not to consider that statement that came in and we will have the hearing outside and then— get a ruling.
“THE COURT: I would like this to be the hearing regardless of whether it got raised before by you or the State. This would be an in camera hearing.
“Let me ask you this. Without trying to get you to divulge what you are trying to do. Do you anticipate, other than this question, do you anticipate going into the past sexual history at all?
“MR. DICKERT: Nothing other than what was said — on the occasion. I am not going to parade any witnesses in here to say they have had sex with her. I am not going to ask her about her sexual background, but I am going to ask her about everything that happened that night and I am going to ask every witness I can get on that stand about everything that was said that night, and if it includes something that would — damage the — state’s position, the, I’m sorry, but this defendant is on trial for a very serious offense.
“MR. BARR: Your Honor, if I might say this, the statement from which Mr. Dic-kert is taking these statements to ask the witness is the Defendant’s statement.
“And it appears he can ask the defendant about what she said.
“MR. DICKERT: That’s right. I can and I will, but I may not get another chance to ask this witness.
“MR. BARR: The implications here, Mr. Dickert, you know the theory behind this statute as to prevent the victim from . being the one on trial, and it appears to the State that Mr. Dickert is trying to develop a line of thought in the minds of the jury that she is on birth control pills and has a baby and therefore is sexually promiscuous and that’s [the] whole theory and purpose of that statute. Unless it involves the accused, it’s not going to be put before the Court.
“MR. DICKERT: Your Honor, I think the purpose of the statute is to keep out bad character testimony about the prose-cutrix. Before that statute was passed— the defense could go into the past — could inquire into the general reputation in the community of the complaining witness with respect to her chastity and that’s what that act is designed to keep out, and we have not offered anything for that purpose, of attacking her character or chastity. We are offering evidence or asking questions designed to find out what was stated during the time that this sexual act took place.
“THE COURT: All right. Let me rule. I overrule the State’s objection. I will permit — I would permit you to ask any question as to what was said or what occurred or what happened that night. I would not permit any question as to her past sexual conduct with other people, as long as her past sexual conduct is done and comes in under the act and that would be a different matter, between the complaining witness and the defendant. Then that would be when you would request an in camera hearing.
“MR. DICKERT: That’s the way I understood the act, now.”

Nowhere else in the record is there any reference to the Act in question. Under the facts presented, this court has nothing to review.

We find that no issue is made to appear from the foregoing portions of the transcript. There is no ruling by the court adverse to the appellant. Without such an adverse ruling, this court has no authority to review the issue raised on appeal in reference to the Act. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256.

As the constitutionality of this Act was not questioned below, in the case at bar, we are unable to consider it for the first time on appeal. Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So.2d 645, cert. den. 292 Ala. 757, 289 So.2d 649.

in

The appellant complains that it was error for the trial court to charge the jury that “the woman need not resist.” No exception was taken to the court’s oral charge at its conclusion, and, in fact, defense counsel stated to the court that he was “satisfied” with the oral charge as given.

Exceptions to the court’s oral charge must be made in the jury’s presence and prior to their deliberations and verdict. Cox v. State, 280 Ala. 318, 193 So.2d 759. In the absence of such an exception, the matter is not presented to this court for review. Loggins v. State, 52 Ala.App. 204, 290 So.2d 665; Passmore v. State, 47 Ala.App. 189, 252 So.2d 115.

IV

Appellant insists that the trial court at one point erroneously instructed the jury during its oral charge that they should convict him if convinced of his guilt beyond a reasonable doubt. He maintains that the omission of the words, “from the evidence” implied that the jury might convict him on conjecture.

We have reviewed the court’s oral charge and have found the following portions of the charge which, we believe, instruct the jury on this point:

“Now, when a defendant is placed on trial, charged with the commission of a public offense, the law says that he is presumed to be innocent of the offense. This defendant, as well as any defendant, in this trial or any trial, comes into trial with a presumption of innocence in his favor. And it is a fact which is to be considered as evidence and is not to be disregarded. And this presumption of innocence remains with the defendant during the trial until overthrown by evidence which convinces the jury of the defendant's guilt beyond a reasonable doubt” [emphasis added]
“. . . .If, after considering ail the evidence in the case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere speculative, vague, fanciful, conjectural doubt, but a reasonably substantial doubt, arising from the evidence and remaining after a careful consideration of the testimony; such as a reasonable, fair minded, and conscientious person would entertain under all the circumstances. You will observe that the State of Alabama is not required to convince you of the defendant’s guilt beyond all doubt, but simply beyond all reasonable doubt, and to a moral certainty, [emphasis added.]
“If, after comparing and considering all the evidence in this case, your minds are left in such a condition that you cannot say that you have an abiding conviction to a moral certainty of the defendant’s guilt, then you are not convinced beyond a reasonable doubt and the defendant would be entitled to an acquittal.” [emphasis added.]

Later, in the court’s instructions to the jury pertaining to their form of the verdict, the court gave the following charge:

“Now, if ladies and gentlemen, after considering all of the testimony in this case, you are convinced beyond a reasonable doubt and to a moral certainty of the guilt of the defendant of rape, . In other words, if you were convinced from the testimony that this defendant was guilty of the offense of rape, . If, on the other hand, you do not believe after considering all of the evidence, you are not convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty of rape, but you are convinced beyond a reasonable doubt and to a moral certainty as to the guilt of the defendant. .
“On the other hand, if after considering all the testimony in the case, you are not convinced beyond a reasonable doubt and to a moral certainty of the guilt of the defendant of rápe, nor of assault with intent to rape, . . , [emphasis added.]

Finally, the court instructed the jury:

“On the other hand, ladies and gentlemen, if after considering all of the evidence you are not convinced beyond a reasonable doubt and to a moral certainty of the guilt of the defendant, and you are convinced that this defendant is innocent, then the form of your verdict would be, ‘We the jury find the defendant not guilty.’ ” [emphasis added.]

At the conclusion of the above instructions, the defense attorney replied that he was “satisfied” with the court’s oral charge.

After reviewing the foregoing portions of the charge to the jury, we are convinced that the point of error insisted on by the appellant was sufficiently covered by the trial court. Further, we again note that no exception was taken to the oral instructions by the defense at trial. See Passmore v. State, supra.

V

We have also examined the seven written requested charges which were refused to appellant and find that they were either abstract, affirmative in nature or adequately covered by the court’s oral charge. Thus, they were all properly refused by the trial court. Adams v. State, 32 Ala.App. 626, 29 So.2d 148; Flandell v. State, 31 Ala.App. 520, 19 So.2d 401.

Under these facts in this case, it is our judgment that evidence presented was sufficient to convict the appellant of the offense as charged and thus the trial court did not err in denying appellant’s motion to exclude the State’s evidence or for a new trial.

Therefore, the judgment of conviction by the Pike Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Darryl STRUGGS.
    78-507.
    Supreme Court of Alabama.
    June 22, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    John Archie GARRISON v. STATE.
    3 Div. 918.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.

      Delores R. Boyd, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for ten years. Throughout the trial proceedings he was represented by counsel of his choice and at arraignment pleaded not guilty and not guilty by reason of insanity. Trial counsel represents him on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury charge that, before the finding of this indictment, John Archie Garrison, whose name is to the Grand Jury otherwise unknown, feloniously took $20.40 in lawful currency or coinage, or currency and coinage of the United States of America, a better description of which is unknown to the Grand Jury, of the value of $20.00; one purse, a better description of which is unknown to the Grand Jury, of the value of $8.00; all of the aggregate value of $28.00, the property of Sister Patricia Normanly, from her person, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

Some time after midday on Friday, February 24, 1978, Sister Patricia Normanly left Loveman’s in the Normandale Shopping Center, Montgomery, Alabama, and was walking through the Arcade to her car parked in the rear of the shopping center. As she was walking she was approached from the rear by someone and felt this person pulling on her arm. It was a very cold day and she was wearing a coat that was buttoned. Her purse was partly inside her coat and she had her hand on it. The pulling on her arm frightened her and she “tensed up” and immediately the assailant twisted her shoulders, struck and pushed her. She fell against the brick wall and then on the walkway. She thought she had her pocketbook with her after she was caused to fall but she was more concerned about her injuries and what caused them than she was about her pocketbook. She sustained a gash, cut or laceration on the top of her head which required eight sutures to close, in the emergency room at St. Margaret’s Hospital. She also had a badly skinned knee. After she was hit, mauled, pushed into the wall, and fell on the walkway, she screamed. Several people came to her aid. She never saw her assailant, but she saw a person go through the gateway after she fell.

She further testified that she remembered putting two ten dollar bills in her pocketbook that morning and she had some one dollar bills. She bought the pocketbook at Loveman’s and paid $7.50 or $8.00 for it. At trial, she identified her pocketbook which was recovered from appellant.

Mr. Roy Burroughs was employed by Zale’s Jewelers on the date of the robbery. He heard a woman scream and he ran to an alleyway across from Zale’s and saw a black male running. He gave chase and lost sight of the man at the end of the alley. At that point he heard a car start and he jumped upon a brick wall and saw the car leaving the parking area. He got the tag number of the fleeing automobile. The tag number was BGA-309. When he returned to Zale’s, he wrote the tag number on a piece of paper and a female employee of Zale’s called the police. When the officers arrived, he gave them the piece of paper with the tag number on it. He identified State’s Exhibit 1 as a photograph of the automobile he saw leaving the parking area. He also identified a photograph of the place where the victim was lying on the sidewalk as he passed her, when he was in pursuit of the man he saw running. The photograph of the automobile was introduced into evidence over appellant’s objection that it did not accurately portray the entire car. The photograph clearly showed the tag number —BGA-309.

On November 24, 1978, Police Officer Ed Alford was assigned to the Robbery Detail, and he participated in the investigation of the robbery at the Normandale Shopping Center. When the officers arrived at the Arcade in the Normandale Shopping Center they saw the victim who had received medical treatment from the paramedics. They interviewed witnesses and got the tag number of the fleeing car. The tag number was traced to a person living at 210 Martin Patton Avenue. He identified State’s Exhibit 1 as a photo of a yellow Pinto automobile which had been used after the commission of this offense. This car was registered in the name of Wilbur Garrison. They went to 210 Martin Patton Avenue and saw a yellow Pinto which had been backed into the driveway. Officer Alford went to the front door at this address and knocked on the door while Detective Wilson and uniformed Officer Shirley went to the rear of the house. An elderly woman came to the front door and Officer Alford identified himself as a police officer and asked her who owned the car parked in the driveway. She told him the car belonged to Wilbur Garrison but he was not at home. He asked her who had just parked the car there and she replied that John Archie Garrison had parked the car. He asked the woman if John Archie was home and she stated he was and invited him in the house. Officer Alford entered the house and was met by a young black male whom he searched for weapons. He asked appellant if he knew why the officers were there and he replied, “I am sorry, that’s the first time I’ve ever snatched a purse and I didn’t mean to hurt the lady.” Officer Alford then gave appellant the Miranda rights and warnings, and handcuffed him. Officer Alford stated no threats, promises, or other inducements were made or held out to appellant to get him to make a statement.

Alford further testified that appellant produced the clothing he was wearing on that occasion and showed the officers where he had hidden the pocketbook under the house. They recovered the pocketbook and as they were about to leave the house appellant told them he had removed the money from the pocketbook and hid it under a sofa pillow in the living room. Alford told appellant’s grandmother that appellant told them the money was under a sofa pillow in the living room. She stated she did not want any part of it and if it was there to get it out of her house. Alford then picked up the sofa pillow and found a wad of money and placed it in his badge case. State’s Exhibit 7, a photograph depicting the sofa where the money was found, was introduced into evidence without objection.

Detective J. T. Roy also took part in the investigation of this crime and he was present when appellant showed them where he hid the purse and it was recovered by Officer Roy.

Officer Alford and Detective Wilson escorted appellant to police headquarters. In the car on the way to the station house Detective Wilson again advised appellant of his constitutional rights. When they arrived at the station house appellant was turned over to Detective J. T. Roy. The time was between 1:30 and 2:00 p. m. Appellant signed a waiver of rights form and made a confessory statement.

An extensive voir dire hearing was held out of the presence and hearing of the jury to determine the voluntariness of the waiver of rights form and the confessory statement. The proper predicate was laid showing that no threats were made to appellant, and no promises, coercion, hope or reward, or other inducements were made or held out to him to get him to execute the waiver form or to sign the confessory statement. At the conclusion of this hearing the court ruled that appellant voluntarily, and with full knowledge of his constitutional rights, freely signed both documents.

The waiver of rights form is as follows:

“CITY OP MONTGOMERY, ALABAMA DEPARTMENT OP POLICE
John Archie Garrison B/M 20 Ed: 1st vr. Coll. NAME
Detective Office MPD PLACE
February 24. 1978 DATE
4:00 PM_ TIME
Robbery & Assault to Murder CHARGE
“Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in court, that you can talk to a lawyer first and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. If you cannot afford to hire a lawyer and want to have one present during interrogation, the Court will appoint one before we question you. If you want to answer questions now, you can do so, but you can stop answering at any time.
/s/ J. T. Rov. Sr. OFFICER
J. T. Roy, Sr., Detective
“I fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.
/s/ John Archie Garrison John Archie Garrison
“WITNESSES:
/s/ J. T. Rov. Sr.
The confessory statement is as follows:
“February 24, 1978 Friday 4:05PM
“Statement taken from: John Archie Garrison B/M
Statement taken by: J. T. Roy, Sr., Detective
Statement Subject: Robbery & Assault to Murder at Normandale Arcade 2-24-78 at 12:40 PM: RE: Reports # 2886 & 2892 Sister Patricia Normanly
“When I got up this morning, I turned on my stereo and it started smoking. I asked my grandmother if I could take it to Southern Sound to get it fixed. I took it up there and gave it to the guy that works there. He didn’t tell me how much it would be to fix it, but I knew that it would be a lot. There was a lot wrong with it. I didn’t know where I was going to get the money. I sat in the car a long time and was watching the ladies with their purses coming out. I thought about the guy that was in the paper and on the news and figured that if I did it maybe they would blame it on him. I got out of the car and went through a little alley and stood there. I seen the old lady and walked past her. I ran back and grabbed her purse and ran. I got in the car and went home. I went and put the purse under the house. I took the money out and hid it in the house. My grandmother asked me what was wrong with me and I told her what I had done. She told me to get the purse and the money and when my uncle got home we would take it to the police. I took a bath and then laid on the bed talking to my grandmother and then the police came.
“Q: What time was it when you went to Southern Sound?
“A: I’m not sure.
Q: Where did you go when you left your stereo?
“A: I went home and told my grandmother that I had put it in the shop and drove back up to Normandale Shopping Center.
“Q: Why did you back your car into the drive?
“A: My grandmother can’t back up so she tells me to back it in.
“Q: Did anyone chase you after you took the purse?
“A: Yes, a white guy, I guess it was the one who got the tag number.
“Q: Did you run right to the car?
“A: Yes, I went to the car and he was at the wall. I went right home.
“Q: Did the woman struggle with the purse?
“A: When I pulled the first time there was a little resistance, then on the next pull she let go. When she fell I heard her holler, ‘Oh, God.’
“Q: Did you know that she was a nun?
“A: No, I had never seen her before.
“Q: How much money was in the purse?
“A: I didn’t get a chance to count it.
“Q: Is there anything else you can tell me?
“A: It wasn’t very much money in there. There was two 10 dollar bills and the rest ones.
“I, John Archie Garrison, have read the above statement and it is true and correct to the best of my knowledge.
/s/ John Archie Garrison 2-24-78 /s/ J. T. Rov. Sr.”

Appellant offered the testimony of several character witnesses who testified that his character and reputation were excellent, and that he was generally regarded as an honest and peaceful person in the Community-

Appellant’s grandmother, Eliza Harrison, testified that she did not invite the police officers into her house. She did admit that she told the officers that appellant was driving the car on the date of the robbery.

Appellant testified that he lived with his grandmother his entire life. He stated that Officer Alford entered the house without knocking and his grandmother became terribly afraid. He said in order to prevent his grandmother from being scared he told the officer: “I’m the one you are looking for.” He denied he made inculpatory statements to the police. He stated that he was not advised of his rights until he was placed in the police car. He said the officers told him that the victim was in critical condition and had received 38 stitches. He said he told the officers that he never touched the victim. He admitted that he grabbed the poeketbook and ran.

Appellant claimed that he was questioned for two hours and was urged to confess to 12 other purse snatchings. He stated that he was not permitted to call anyone. He denied telling the officers that he met resistance when he grabbed the purse and he denied that the victim fell.

On cross-examination appellant identified a photograph as the alleyway through which he ran. He admitted he approached the victim from behind, and that he took the poeketbook with very little resistance. He denied that he was read his constitutional rights while he was within the house. He admitted that he signed the waiver of rights form, but he did not read everything that he signed. Appellant stated he understood his rights when they were given him and he admitted he told the officers that he took the purse.

Appellant contends that the State’s evidence is insufficient to constitute the crime of robbery. We do not agree.

There are three essential elements of the crime of robbery. They are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Summers v. State, Ala.Cr.App., 348 So.2d 1126, certiorari denied, 348 So.2d 1136; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716.

It is true that the victim was not put in fear as she did not see her assailant as he pounced upon her from behind. That appellant used force cannot be gainsaid by the testimony of the victim. Appellant hit her and twisted her shoulders, pushed or knocked her against the wall, forcibly took her pocketbook and ran away. Prior to assaulting the victim appellant parked his ear in the Normandale parking lot for approximately thirty minutes and watched women carrying their purses. He deliberately chose the victim as his quarry as she was walking alone and he thought she would be easy prey. The question of intent was for the jury and the verdict of the jury resolved this issue against appellant. Crutcher v. State, supra; Root v. State, 247 Ala. 514, 25 So.2d 182; Gibson v. State, 49 Ala.App. 18, 268 So.2d 49.

The loss of property by a felonious taking may be proved by facts and circumstances as well as by direct and positive evidence. Baker v. State, Ala.Cr.App., 344 So.2d 547; Gross v. State, 56 Ala.App. 387, 321 So.2d 727.

Appellant claims that his confession was not voluntary and should have been excluded. An extra-judicial confession, oral or written, is prima facie involuntary and inadmissible and duty rests in the first instance on the trial court to determine whether the confession is voluntary, and, unless it so appears, it should not be admitted. Pike v. State, Ala.Cr.App., 340 So.2d 865; Rainer v. State, Ala.Cr.App., 342 So.2d 1348; Hardin v. State, Ala.Cr.App., 344 So.2d 234.

The voluntariness of an alleged confession is a question of law for the court upon preliminary proof, showing the circumstances surrounding the alleged confession, taken outside the hearing of the jury, and such finding will not be disturbed on appeal unless it appears contrary to the great weight of the evidence or is manifestly wrong. Balentine v. State, Ala.Cr.App., 339 So.2d 1063, certiorari denied, Ala., 339 So.2d 1070; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360.

The rule announced in Balentine and Stewart, supra, was fully complied with in this case and the confession was properly admitted into evidence.

Before the officers asked appellant a single question concerning the alleged robbery he said, “I am sorry, that’s the first time I’ve ever snatched a purse and I didn’t mean to hurt the lady.” This was a “spontaneous exclamation” and admissible evidence. Alabama Digest, Criminal Law, <§=*364(4).

Finally, appellant urges this court to reverse the conviction for failure to give his written requested charge number 6:

“The Court charges you, gentlemen and ladies of the jury, that if, upon considering all the evidence, you have a reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.
“If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of Defendant’s guilt the jury must acquit him.
“The Court further charges you that the term ‘reasonable doubt’ means a doubt which has some good reason for it arising out of the case. It means such a doubt as would cause a prudent man to pause and hesitate before accepting as true and acting upon any matters alleged or chartered in the more important matters of life. Gentlemen, if, upon a careful and and candid review of all the evidence, you ask your inward conscience, ‘Is he the guilty one?’ and the answer is, T doubt it,’ you must acquit. Absolute certainty is not required, there must be a reasonable doubt.”

The court orally charged the jury on the meaning of a reasonable doubt in the following language:

“The term, reasonable doubt, means a doubt which has some good reason for it arising out of the evidence in the case. Such a doubt as you are able to find within the evidence a reason for. It means an actual, substantial doubt, it does not mean a doubt which arises from a mere whim or from a groundless surmise or guess. While the law requires you to be satisfied of the defendant’s guilt beyond a reasonable doubt it at the same time prohibits you from going outside the evidence to hunt up doubt upon which to acquit the defendant. In arriving at your verdict it’s your duty to carefully consider the entire evidence in the case and in so doing you should entertain only such doubts as arise from the evidence and are reasonable as that has already been defined. Unless a doubt is a reasonable one and does so arise it will not be sufficient in law to authorize a verdict of not guilty. Then if upon careful review of all the evidence you ask your inward conscience, is the defendant guilty, and the answer is, I doubt if he is, you should acquit, but if the answer is, I have no reasonable doubt about it, then you should convict.” (Emphasis supplied).

It is clear from the language of the oral charge on reasonable doubt “arising out of the evidence,” and “within the evidence,” after carefully considering “the entire evidence,” “you should entertain such doubts as arise from the evidence,” that the jury was properly charged on the law of reasonable doubt. This seems to be the holding of the Supreme Court in King v. State, 356 So.2d 1220 and Dillard v. State, 78-184-ms., released by the Supreme Court on May 4, 1979.

In our judgment the third paragraph of refused charge number 6 containing the phrase “acting upon any matters alleged or chartered in the more important matters of life” renders the charge confusing and misleading. Where several instructions are requested in bulk, and any one is improper, all may be refused. Colley v. State, 167 Ala. 109, 52 So. 832; Brown v. State, 50 Ala.App. 702, 282 So.2d 322.

The trial judge charged the jury on the lesser-included offenses of larceny, assault with intent to rob, assault and battery, and simple assault. As we view the evidence the charge on lesser-included offenses was far more than appellant was entitled to. The evidence presented by the State proved a clear-cut case of robbery, and the oral charge gave appellant more than he was due.

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Albert HICKS v. STATE.
    6 Div. 833.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.

      Roy J. Brown, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Pursuant to an indictment, a jury convicted appellant-defendant of assault with intent to murder. The trial judge fixed punishment at ten years imprisonment.

Appellant and his victim, Sherman Rice, friends for several years, got together on the morning of November 3, 1977, and went for a ride in appellant’s automobile. They bought some wine and beer, which was consumed by both of them. They stopped at the home of appellant’s girl friend where they visited for awhile. They resumed riding in the automobile. Upon reaching a point on a road in Jefferson County, appellant stopped the car and they both got out. The victim testified that defendant then said, “This is the end of your life” and opened fire with three shots. The bullets all struck Rice. He was badly wounded. Defendant took off. He stopped at a filling station and called the police. An officer arrived and placed him under arrest.

Defendant testified to a different version. He asserted that the victim tried to cut him with a “hawk billed” knife and then, in self-defense, he shot Rice. There were numerous conflicts in the testimony as to who was the aggressor and just what did happen. At least there was no dispute about their consumption of some wine and beer plus a visit to a girl’s house.

The conflicts in the evidence were for resolution of the jury. The verdict was adverse to defendant’s contention that he acted in self-defense. We think the evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt, although there was considerable conflict.

Appellant asserts that the trial court erred in permitting the victim to testify, over defendant’s objection, that defendant had shot at him or had shot him before that day. The witness, Rice, answered in the affirmative before the objection was made. The objection came too late. Hale v. State, 48 Ala.App. 513, 266 So.2d 316(1), cert. den. 289 Ala. 744, 266 So.2d 318; Lucky v. State, 50 Ala.App. 324, 278 So.2d 772(4). See also Alabama Digest, Vol. 6A, @=>693 for additional cases.

We have read the entire record and fail to find any ruling that mandates a reversal of the judgment of guilt. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: per CURIAM.

text:
    Lyle CRIPPEN, Petitioner, v. SUNLAND CENTER et al., Respondents.
    No. 55204.
    Supreme Court of Florida.
    March 22, 1979.
    William W. Fernandez of Fernandez & Scarito, Orlando, for petitioner.
    Robert J. Felice of Akerman, Senterfitt & Eidson, Orlando, for respondents.
   ON PETITION FOR REHEARING

per CURIAM.

Petitioner, Lyle Crippen, filed his notice to invoke the certiorari jurisdiction of this Court on October 2, 1978. Petitioner sought review of an order of the Industrial Relations Commission entered on August 18, 1978. On September 1, 1978, the Industrial Relations Commission denied Lyle Crippen’s petition for reconsideration of the commission’s order of August 18, 1978. By order filed October 6, 1978, the Court dismissed, sua sponte, this cause because the notice of certiorari was not timely filed.

On October 16, 1978, petitioner filed his motion for rehearing or for clarification of the Court’s order of October 6, 1978, dismissing this cause. For the benefit of the workmen’s compensation bench and bar we deem it appropriate to articulate the jurisdictional requirements imposed by Florida Rule of Appellate Procedure 9.110(b), as it relates to section 440.27(1), Florida Statutes (1977), and the Florida Workmen’s Compensation Rules of Procedure.

Petitioner asserts in this cause that the time for filing notice of certiorari imposed by Florida Rule of Appellate Procedure 9.110(b) was tolled by the filing of his petition for reconsideration which was not disposed of by the Industrial Relations Commission until September 1, 1978. He bases this contention upon Florida Workmen’s Compensation Rule of Procedure 20, which provides for motion practice on appeal. In particular, he maintains that rule 20(e) tolls the time for the performance of a required act (notice of certiorari) from the date of filing of the petition for reconsideration until the date the order was entered on such petition. He posits that Florida Rule of Appellate Procedure 9.020(g) defines rendition within the purview of rule 9.110(b) as being after the disposition of any motion for rehearing filed in the lower tribunal, hence the order which he seeks to review was not rendered until September 1, 1978. However, rule 9.020(g) states that an order shall not be deemed rendered until disposition of “an authorized and timely motion for new trial or rehearing . . . (Emphasis supplied.) Because we do not deem Florida Workmen’s Compensation Rule of Procedure 20 to authorize a motion or petition for rehearing from a final order of the Industrial Relations Commission, the thirty-day time for filing imposed by Florida Rule of Appellate Procedure 9.110(b) as incorporated by section 440.27(1), Florida Statutes (1977), is not tolled by the filing of such a petition or motion.

In Jacksonville Paper Co. v. Nolan, 80 So.2d 454 (Fla.1955), the Court dealt with this issue. In that case the petitioner, on November 27, 1954, sought review of an Industrial Relations Commission ordered entered August 11, 1954. Respondent moved to dismiss the petition since it was not filed within the time limit prescribed by Supreme Court rule. Petitioner contended that the time limitation was tolled by reason of its filing of a petition for reconsideration on September 9, 1954. We granted the motion to dismiss, holding that “the absence in this case of a valid rule or statute authorizing the filing of such a petition is fatal to petitioner’s contention.” Id. at 455. Chapter 440, Florida Statutes (1977), remains unchanged since the date of that decision in respect to providing for a petition for rehearing or reconsideration of a final order oiLthe Industrial Relations Commission. After reviewing the history and the drafting committee’s efforts in connection with Florida Workmen’s Compensation Rule of Procedure 20, adopted by this Court effective July 1, 1977, we are persuaded that there was no intent by -the drafters or this Court to provide thereby for motions for rehearing of a final order of the Industrial Relations Commission. The express language of the rule makes no provision for such motion, nor are we disposed, in view of our knowledge of the history of the drafting of the rule, to construe any such provision by implication.

Accordingly, the rule announced in Jacksonville Paper Co. v. Nolan remains the controlling law, and predicated thereon, petitioner’s motion for rehearing is denied.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM.

text:
    Jeanette WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 53405.
    Supreme Court of Florida.
    May 3, 1979.
    Rehearing Denied July 16, 1979.
    Bennett H. Brummer, Public Defender, and Elliott H. Scherker, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Ira N. Loewy and Jeffrey Samek, Asst. Attys. Gen., Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ and dispensed with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. After careful consideration of the briefs and record, we have determined that conflict was dispelled by Clark v. State, 363 So.2d 331 (Fla.1978), thereby leaving this Court without jurisdiction. Accordingly, the writ must be and is hereby discharged and the petition for writ of certiorari is dismissed. See Linder v. Combustion Engineering, Inc., 342 So.2d 474 (Fla.1977); Florida East Coast Railway v. Rouse, 194 So.2d 260 (Fla.), conformed to, 195 So.2d 611 (Fla. 3d DCA 1967); Weedman v. Sunland Roller Rink, Inc., 349 So.2d 752 (Fla. 3d DCA 1977).

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.


author: PER CURIAM. ENGLAND, Chief Justice, HATCHETT, Justice,

text:
    John A. SPENKELINK, Appellant, v. STATE of Florida, Appellee.
    No. 56810.
    Supreme Court of Florida.
    May 21, 1979.
    Andrew A. Graham, Cocoa, and David E. Kendall, Washington, D. C., for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of the Motion for Stay of Execution, briefs of the parties, and the record on appeal it is ordered that the Motion for Stay of Execution be and the same is hereby denied, and the order of the trial court denying the motion to vacate, set aside, or correct sentence pursuant to rule 3.850 of the Florida Rules of Criminal Procedure is affirmed.

ADKINS, BOYD, OVERTON, SUND-BERG and ALDERMAN, JJ., concur.

ENGLAND, C. J., concurs specially with an opinion.

HATCHETT, J., concurs specially with an opinion.

ENGLAND, Chief Justice,

concurring specially.

I concur in the Court’s judgment. The only issue raised by Spenkelink in this proceeding that has not previously been fully adjudicated is the assertion that, under the standards enunciated and applied in our more recent decisions, the finding that this capital felony was “especially heinous, atrocious, or cruel” should be stricken. Whether such a claim predicated on subsequent interpretations of the statutorily prescribed aggravating or mitigating circumstances is ever a proper basis for relief as a general matter, or whether that particular finding is subject to question in this case, it is clear that Spenkelink would not be entitled to relief from his sentence in any event.

In his original sentencing order, the trial judge found that there existed four statutory aggravating circumstances and that no mitigating factors were established. These findings were affirmed on direct appeal, and no argument was advanced at that time to suggest any error in the trial court’s sentence. Moreover, after thoroughly reviewing the evidence, a majority of this Court concluded that “[t]he aggravating circumstances justify imposition of the death sentence,” and that Spenkelink “showed no mitigating factors to require a more lenient sentence.” Spinkellink v. State, 313 So.2d 666, 671 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). The federal courts have agreed. Spenkelink v. Wainwright, 578 F.2d 582, 599-606 (5th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

We have repeatedly held that “[w]hen one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of the mitigating circumstances . . . State v. Dixon, 283 So.2d 1, 9 (Fla.1973). See also, e. g., Foster v. State, 369 So.2d 928, 931 (Fla.1979); LeDuc v. State, 365 So.2d 149, 152 (Fla.1978). Thus even if we were to strike as improper the finding which Spenkelink now contests, there would remain three properly found aggravating circumstances and no mitigating factors — a situation which we have previously held does not justify disturbing the sentence of death. See Washington v. State, 362 So.2d 658, 666 (Fla.1978); Elledge v. State, 346 So.2d 998, 1002-03 (Fla.1977).

HATCHETT, Justice,

concurring specially.

I concur specially for the reasons stated in Spenkelink v. State, 350 So.2d 85 (Fla.1977).

      . This contention has been expressly rejected by the Fifth Circuit Court of Appeals. Spenkelink v. Wainwright, 578 F.2d 582, 604-05 (5th Cir. 1978), cert. denied, - U.S. -, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).


text:
    Joseph K. ISLEY, Appellant, v. Reubin O’D. ASKEW, etc., Appellees.
    No. 54235.
    Supreme Court of Florida.
    May 24, 1979.
    Tobias Simon, Miami, Richard McFarlain, Tallahassee, and Charles L. Carlton, Lake-land, for appellant.
    Jim Smith, Atty. Gen., William C. Sher-rill, Jr., Chief Trial Counsel, and Richard A. Hixson, Asst. Atty. Gen., Tallahassee, for appellees.
   PER CURIAM.

This cause is before the court on appeal from a decision of the District Court of Appeal, First District, which construed a provision of the state constitution. Isley v. Askew, 358 So.2d 32 (Fla. 1st DCA 1978). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

The district court’s decision was rendered upon the filing of an original petition there, seeking a “rule to show cause,” testing the authority of the governor to suspend the petitioner from the office of member of the Lee County school board and questioning whether the Commission on Ethics is lawfully constituted under article II, section 3 and article IV, section 1(f), Florida Constitution. The petitioner sought to invoke the power of the district court of appeal, under article V, section 4(b)(3), Florida Constitution, to “issue writs of mandamus, certiorari prohibition, quo warranto, and other writs necessary to the complete exercise of its jurisdiction.”

There is no demonstrated jurisdictional ground for the district court to have taken action on the appellant’s petition. Under our jurisdiction of the appeal, we have power to quash the district court’s decision for lack of jurisdiction. Skipper v. Schumacher, 118 Fla. 867, 160 So. 357 (1935).

The decision of the district court is quashed and the cause remanded to the district court for the entry of an order of dismissal.

It is so ordered.

ENGLAND, C. J., and BOYD, SUND-BERG and ALDERMAN, JJ., concur.

ADKINS, OVERTON and HATCHETT, JJ., dissent.


text:
    MATTER OF INTEREST ON TRUST ACCOUNTS, a PETITION OF the FLORIDA BAR TO AMEND the CODE OF PROFESSIONAL RESPONSIBILITY AND the RULES GOVERNING the PRACTICE OF LAW.
    No. 51182.
    Supreme Court of Florida.
    May 24, 1979.
    Robert L. Floyd, President, The Florida Bar, Miami, James A. Urban, President, The Florida Bar Foundation, Inc., Orlando, James C. Rinaman, Jr., Chairman, Florida Bar Integration Rule and Bylaws Committee, Jacksonville, Norman A. Faulkner, Staff Counsel and David G. McGunegle, Asst. Staff Counsel, The Florida Bar, Tallahassee and Melvin C. Morgenstern, Tax Counsel for The Florida Bar Foundation, Inc., Miami, for petitioner.
    Henry P. Trawick, Jr., Sarasota, and Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, Response to Petition For Amendment of Integration Rule.
   PER CURIAM.

In March 1978, we amended the rules governing the practice of law in this state “to authorize attorneys to invest trust funds held for clients in order to generate investment income for the benefit of public interest programs related to the legal profession.” To implement this new program, we directed the officers and directors of The Florida Bar Foundation to initiate the process of amending the Foundation’s charter and by-laws to accommodate its expanded responsibilities in receiving and disbursing the interest from attorneys’ trust savings accounts. We further directed that the charter amendment identify seven specific purposes for which Foundation trust account income could be used.

In June 1978, The Florida Bar and the Foundation jointly filed proposed amendments for this Court’s approval which, in accordance with our directive, would have authorized the use of Foundation funds for the seven purposes enumerated in our opinion. Subsequent to the filing of the Foundation’s proposed charter amendments, however, the Internal Revenue Service made a preliminary determination that three of the seven proposed uses would be disapproved as being inappropriate for an organization exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code. To avoid the risk of losing its tax-exempt status, the Foundation has now proposed revised charter provisions containing only the four proposed uses of trust moneys which were not found objectionable by the Internal Revenue Service.

In addition to amendments which conform the Foundation’s charter to our opinion and preserve its tax-exempt status, the Bar has petitioned the Court (i) to amend the Integration Rule and by-laws to eliminate the requirement that annual trust accounting compliance certificates be prepared by a certified public accountant, and (ii) to conform the required notice to clients to the revised charter changes by deleting any reference to those uses of Foundation funds which have not yet been approved by the Internal Revenue Service.

Both the Bar and the Foundation have indicated that the interests of the public and the legal profession are best served by implementing a modified program, using the funds generated by trust savings accounts for those purposes which have thus far been approved. We agree. Temporary elimination of three proposed uses, pending approval of all seven by the Internal Revenue Service, will not diminish the validity or the value of the program for the benefit of the public. We therefore approve the amendments submitted by the Foundation for filing with the secretary of state, and we adopt a revised charter and by-laws in the form set forth at the end of this opinion.

The petition to amend the Integration Rule and by-laws of The Florida Bar is granted, and the following amendments are hereby adopted:

(1)The second sentence of Integration Rule, article XI, Rule 11.02(4)(c) is amended to read (strike-throughs indicate deletions):

The minimum procedure shall require reconciliation of trust account balances at periodic intervals and the annual filing of a certificate reflecting compliance with minimum record keeping and procedural requirements, which certificate shall be prepared- by-a certified public accountant if one or more trust-savings -accounts-ar-e utilized.

(2) Subsection (D) of the by-laws implementing Florida Bar Integration Rule, article XI, Rule 11.02(4)(c) is amended by deleting paragraph 3 in its entirety.

(3) The third paragraph of the “Impor-. tant Notice to Clients” contained in Florida Bar Integration Rule, article XI, Rule 11.-02(4)(d)(vii) is amended to read (strike-throughs indicate deletions and underscoring indicates additions):

The goals of the Court’s program are to improve the administration of justice in this state; and to expand the delivery of legal services to the poor general public, and to enhance the bar’s ability to reimburse clients who may dose-money-■ as a result of an attorney’s misconduct or er-

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ARTICLE I

NAME

The name of this corporation shall be: The Florida Bar Foundation, Inc. For convenience it is herein called the corporation or the foundation. The principal office and place of business shall be at Tallahassee, Florida, until otherwise established and ordered by the Board of Directors. The business of this corporation shall be carried on at Tallahassee, Florida, and at such other places as may from time to time be authorized by the Board of Directors.

ARTICLE II

PURPOSES AND POWERS

2.1 Purposes. The foundation shall be operated exclusively for charitable, scientific, literary and/or educational purposes as described in Section 501(cl(31 of the Internal Revenue Code of 1954. or corresponding provisions of anv subsequent federal tax law (“Code”') including but not limited to the following particular purposes:

(a) The improvement of the administration of justice and the elevation of judicial standards.

(b) The promotion of the study of law and research in the law, the diffusion of legal knowledge and the continuing legal education of lawyers.

(c) The publication and the distribution of works on legal subjects.

(d) The improvement of relations between members of the Bar, the judiciary and the public.

(e) The fostering of suitable standards of legal education and of admission to the Bar, and the furnishing of funds for making grants and loans to qualified and worthy persons for the study of law.

(f) The aiding of members of The Florida Bar who shall be in great need of assistance because of illness, misfortune or advanced age.

(g) The promotion of the preservation of the American constitutional form of government. Provided, however, that no part of the assets or net earnings of the foundation (including such assets or net earnings as mav be derived from the Trust Savings Account Program described in Article 2.3 belowl shall inure to the benefit of any private charity shareholder or individual; and further provided that the foundation shall not carry on propaganda, or otherwise attempt to influence legislation, and shall not participate in or intervene in (including the publication or distribution of statements), any political campaign on behalf of any candidate for public office.

(h) In furtherance of the foregoing charitable. scientific, literary and/or educational purposes, the assets and earnings of the foundation (including but not limited to those assets or earnings derived from the Trust Savings Account Program) mav be used for anv one or more of the following charitable activities undertaken for exclusively public purposes:

(II To provide legal aid to the poor:

(21 To provide student loans:

(31 To improve the administration of justice: and

(41 For such other programs for the benefit of the public as are specifically approved from time to time bv the Supreme Court of Florida for exclusively public purposes.

Except as more specifically hereinabove set forth, such activities mav be undertaken directly bv the foundation or bv the provision of funds bv the foundation to The Florida Bar or Florida Legal Services. Inc,, to be used exclusively for such purposes.

2.2 Restrictions. In such fiscal years (if anvl as the corporation shall be a “private foundation” as described in Section 509(al of the Code and/or subject to the taxes imposed bv Sections 4940 et sea, of the Code:

(a) The corporation shall distribute its income for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Code, or corresponding provisions of any subsequent federal tax laws.

(b) The corporation shall not engage in any act of self-dealing as defined in Section 4941(d) of the Code, or corresponding provisions of any subsequent federal tax law.

(c) The corporation shall not retain any excess business holdings as defined in Section 4943(c) of the Code, or corresponding provisions of any subsequent federal tax laws.

(d) The corporation shall not make any investments in such manner as to subject it to tax under Section 4944 of the Code, or corresponding provisions of any subsequent federal tax laws.

(e) The corporation shall not make any taxable expenditures as defined in Section 4945(d) of the Code, or corresponding provisions of any subsequent federal tax laws.

2.3 Gifts. The foundation may receive, by gift, bequest, devise, or in any other manner, money, assistance, and any other form of contribution, whether of real, personal, or mixed property, from any person, firm or corporation to be used in the furtherance of the purposes of the foundation; provided, however, that gifts shall be subject to acceptance by the board of directors as required by the bylaws. The foundation may also receive all funds generated by the Trust Account Savings Program implemented bv Order of the Supreme Court of Florida (In Re: “Matter of Interest on Trust Accounts et sea.”') as such Order may be amended from time to time.

2.4 Offices and Employees. The foundation may establish one or more offices and employ such agents, employees and clerical force as may be deemed necessary or proper to conduct and carry on the work of the foundation, and it may pay a reasonable compensation for the services of such persons.

2.5 Powers: General. The foundation may contract and be contracted with, sue and be sued, invest and reinvest the funds of the foundation, and do all acts and things requisite, necessary, proper, or desirable to carry out and further the purposes for which the foundation is formed.

2.6 Powers: Trust Account Savings Program. With respect to the activities of. and assets and earnings derived from, the Trust Account Savings Program, the foundation may:

(a) Authorize capital expenditures, accumulations. or reserves, only as may be necessary to meet the reasonable working needs of the foundation in administering the Trust Account Savings Program:

(b) Retain professional investment advisory services:

(c) Through its Directors in the manner set forth in ARTICLE VI hereof, adopt rules of procedure reasonably necessary or helpful in carrying out the purposes and powers of the foundation in managing and administering the Trust Account Savings Program.

ARTICLE III

MEMBERS

3.1 Qualification. Each member of the foundation shall be a member of The Florida Bar who is interested in the purposes of the foundation.

3.2 Admission. Members shall be selected by the directors in the manner determined by the bylaws and shall be admitted to membership upon making contributions to the foundation in the amounts required by the bylaws.

3.3 Classes; Terms. Classes of membership and the terms of membership of members shall be determined by the bylaws.

3.4 Rights. Each member shall be entitled to one vote at meetings of the foundation, but no member of the foundation shall have any vested right, privilege or interest of, in or to the assets, functions, affairs or franchise of the foundation, or any right, interest or privilege which may be transferable or inheritable or which shall continue if his membership ceases or while he is not in good standing.

3.5 Termination. Membership shall be terminated in the manner provided by the bylaws for failure to make the contributions required for maintenance of membership. If a member ceases to be a member of The Florida Bar his membership in the foundation shall be thereby terminated. A membership may be terminated for cause by concurrence of a majority of all directors of the foundation after due notice to the member and an opportunity to be heard.

3.6 Meetings. Members shall meet annually at the time provided in the bylaws and special meetings may be called in the manner provided in the bylaws.

ARTICLE IV

TERM: DISSOLUTION

This corporation shall have perpetual existence. In the event of a dissolution of the corporation, its assets, after payment of all debts and charges of the corporation, and expenses of dissolution, shall be distributed among all properly accredited schools of law within the State of Florida, organized and operating exclusively for charitable and/or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder, or individual, nor substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements) any political campaign on behalf of any candidate for public office.

ARTICLE V

The names and residences of the original subscribers hereto are as follows:

NAME RESIDENCE
Donald K. Carroll 1200 Greenleaf Bldg. Jacksonville, Florida
J. Lance Lazonby Baird Office Bldg. Gainesville, Florida
Kenneth B. Sherouse, Jr. Supreme Court Bldg. Tallahassee, Florida
William A. Gillen Citizens Bldg. Tampa, Florida
J. Lewis Hall 121½ E. Jefferson St. Tallahassee, Florida
Sherwood Spencer 1924 Hollywood Blvd. Hollywood, Florida

each of whom is ■ presently has been an officer or member of the Board of Governors of The Florida Bar.

(Names and residences of original foundation subscribers.)

ARTICLE VI

DIRECTORS

6.1 Number. The affairs of the foundation shall be managed by a board of directors consisting of 17 directors. 5 of whom shall be designated directors as set forth in ARTICLE 6.2 hereof and 12 of whom shall be elected directors as set forth in ARTICLE 6.3 hereof.

6.2 Designated Directors. There shall be 5 designated directors who shall be:

the Chief Justice of the Supreme Court of Florida:

two other judicial officers to be appointed by the Chief Justice of the Supreme Court of Florida (and to serve at his pleasure);

the President of The Florida Bar: and

the President of Florida Legal Services. Inc.

6.3 Elected Directors. Elected directors of the foundation shall be elected at the annual meeting of the members in the manner provided by the bylaws.

6.4 Term; Removal; Vacancies. The term of office of elected directors, their removal from office and the filling of the vacancies shall be determined by the bylaws. The 5 designated directors enumerated in ARTICLE 6,2 above shall be directors of the foundation during their respective terms in office.

6.5 Executive Committee. The affairs of the foundation may be managed by an executive committee between meetings of the board of directors. The executive committee shall consist of directors and shall be established in the manner and with the authority provided by the bylaws.

ARTICLE VII

OFFICERS

7.1 Number. The affairs of the foundation shall be managed by a board of directors and administered by a president, one or more vice presidents, a secretary, and a treasurer and such other officers as the board of directors shall deem desirable. Officers need not be directors or members of the foundation. A person may hold more than one office, except that the president and a vice president may not be secretary or an assistant secretary. ■

7.2 Election. The officers shall be elected by the board of directors at its first meeting following the annual meeting of the members, and they shall serve at the pleasure of the board of directors.

ARTICLE VIII

The board of directors of this corporation shall make and adopt bylaws for the corporation, and said board and its successors in office shall have power to alter, amend, and rescind such bylaws or to adopt new bylaws.

ARTICLE IX

DIRECTORS’ AND OFFICERS’ COMPENSATION AND PROTECTION

9.1 Compensation. A director of the foundation shall not receive compensation, directly or indirectly, for his services as a director. An officer of the foundation shall not receive compensation, directly or indirectly, for his services as an officer unless he is employed by the board of directors as a member of the administrative staff of the foundation. These prohibitions shall not preclude reimbursement of a director or officer for expenses or advances made for the foundation that are reasonable in character and amount and approved for payment in the manner provided by the bylaws.

9.2 Indemnification. Every director and every officer of the foundation shall be indemnified by the foundation against all expenses and liabilities, including counsel fees, reasonably incurred by or imposed upon him in connection with any proceeding or any settlement of any proceeding to which he may be a party or in which he may become involved by reason of his being or having been a director or officer of the foundation, whether or not he is a director or officer at the time such expenses are incurred, except when the director or officer is adjudged guilty of willful misfeasance or malfeasance in the performance of his duties; provided that in the event of a settlement before entry of judgment, the indemnification shall apply only when the board of directors approves such settlement and reimbursement as being for the best interest of the foundation. The foregoing right of indemnification shall be in addition to and not exclusive of all other rights to which such director or officer may be entitled. Appropriate liability insurance shall be provided for every officer, director and agent of the foundation in amounts determined from time to time bv the Board.

ARTICLE X AMENDMENT

10.1 Notice of Amendments. Notice of the subject matter of a proposed amendment shall be included in the notice of the meeting at which a proposed amendment is considered.

10.2 Directors Approval. A resolution adopting a proposed amendment or amendments shall be approved bv two-thirds of all directors.

10.3 Approval. An amendment adopted by the board of directors shall be presented to the Board of Governors of The Florida Bar for approval.

10.4 Approval. An amendment adopted by the board of directors and approved by the Board of Governors of The Florida Bar shall be presented to the Supreme Court for approval in accordance with Article XII of the Integration Rule of The Florida Bar.

10.5 Filing. An amendment so adopted and approved shall be filed with the secretary of state as provided by law.

BYLAWS

Article I

MEMBERS

1.1(c) Ex Officio Members. The president, president-elect, executive director, members of the Board of Governors of The Florida Bar and members of the Supreme Court of Florida during their terms of office shall be ex officio members of the foundation. The term of an ex officio membership shall begin with the installation of the member in his office and shall terminate when he ceases to hold office.

Article II

DIRECTORS

2.1 Number. The affairs of the foundation shall be managed by a board consisting of 42 17 directors 5 of whom shall be designated directors pursuant to 6.2 of the Charter and 12 of whom shall be members or life members of the foundation at the beginning of their terms of office.

2.2 Election. Election of the 12 elected directors shall be conducted in the following manner:

2.3 Term: The term of office for an elected director shall begin with the date of his election and shall expire at the third annual meeting of members of the foundation following his election. The term of a director elected to fill a vacancy shall expire at the time of the expiration of the office being filled. The torm ef-offico for-each- diroctor serving at the effective date of this amendment shall bo determined by-the-board of directors so that four of the terms will end at each of the following throe annual meetings of-members of the foundation, and-so the terms of at least -one director who is-an ex officio member of tho foundation shall expire at each of those three annual meetings of-members.

2.4 Removal. An elected director may be removed for cause at any time by concurrence of a — majority two-thirds of all directors of the foundation; provided, before he is removed against his consent, he shall be given an opportunity to be heard.

⅛7 — Regular mootings of the board of di rectors may bo hold at such time and place as shall-be determined, from time to time, fey-a majority of the directors.

2.7 Regular meetings of the board of directors shall be held at regular specified intervals as determined bv a majority of the board of the directors but at least semi-annually, Time and place shall be determined from time to time bv a majority of the directors or the president.

Article V

FISCAL AGENTS

The directors may employ one or more fiscal agents including the retaining of professional investment advisory services to handle the details of its investment program, the purchase and sale of securities and investments under the supervision of the board of directors, and custody of all securities and investments, and the keeping of corporate accounts and records whenever the funds of the corporation are sufficiently large to justify the same.

      . In re Interest on Trust Accounts, a Petition of The Florida Bar, 356 So.2d 799, 799 (Fla. 1978).

      . Mat 811.

        .Id.

      . 26 U.S.C. § 501(c)(3) (1976). Specifically, the Internal Revenue Service objected to provisions for the adequate delivery of legal services to all members of the public (as opposed to delivery only to the poor), for the augmentation of the clients’ security fund, and for the funding of a more expeditious and efficient grievance mechanism.

      .The Foundation has advised the Court that it intends to pursue authorization for the remaining three purposes through the administrative channels of the Internal Revenue Service.

      . Fla.Bar Integr.Rule, art. XI, Rule 11.02(4)(c). See also by-laws implementing Integration Rule 11.02(4)(c), subsection (D)(3).

      . Fla.Bar Integr.Rule, art. XI, Rule 11.-02(4)(d)(vii).


text:
    THE FLORIDA BAR, Complainant, v. Wilfred H. CONRAD, Respondent.
    No. 55549.
    Supreme Court of Florida.
    May 31, 1979.
    David G. McGunegle, Branch Staff Counsel, and John A. Boggs and James P. Holla-way, Asst. Staff Counsels, Tallahassee, for complainant.
    Wilfred H. Conrad, in pro per., Sanford, for respondent.
   PER CURIAM.

This matter is before the Court on respondent’s petition for leave to resign pending disciplinary proceedings pursuant to Florida Bar Integration Rule, article XI, Rule 11.08(2).

Respondent is currently the subject of two pending disciplinary actions. In the first case, the referee, found he had solicited a one-year $10,000 loan without interest from a client in 1969 to relocate his practice. The loan was neither secured nor evidenced by any writing between the parties nor did Mr. Conrad advise his client of the legal ramifications of the transaction. During this period Mr. Conrad represented the client in various matters, including a divorce action. The loan was never repaid, and ultimately the client was forced to sue, which resulted in a judgment against Mr. Conrad in 1975 for $11,707.50, representing the entire principal plus interest and costs. The judgment was affirmed by the District Court of Appeal, Fourth District. The referee found this conduct to be in violation of Disciplinary Rules 1-102(A)(6) and 5-104(A) of the Florida Bar’s Code of Professional Responsibility. As discipline, he recommended that respondent be suspended for a period of six months and thereafter until he proves rehabilitation, pays costs, and satisfies the aggrieved party.

In a second disciplinary proceeding, the Ninth Judicial Circuit Grievance Committee found probable cause and filed its report dated September 29, 1978. The report in this matter reflects that Mr. Conrad was retained to handle two adoption cases in October, 1976, and was paid a fee of $450 to cover both. In August, 1977, after completing the first adoption case, he closed his office preparatory to leaving Florida and failed to complete the second adoption case or make adequate arrangements for a successor attorney to complete it. The lawyer he contacted to take over pending matters examined them and decided not to accept the offer after his review indicated additional problems with one adoption case and that a malpractice action from which he was to seek his fee was not likely to succeed. Thereafter, Mr. Conrad made no other arrangements on behalf of the client. The committee found probable cause for violations of Disciplinary Rules 2-110(A)(2) and 6-101(A)(3) of the Florida Bar’s Code of Professional Responsibility. That report has been served on Mr. Conrad.

The Bar filed the report and record of the first case with the Court on November 17, 1978. Mr. Conrad filed a petition for review and brief on December 11, 1978, and then filed his petition for leave to resign on December 12, 1978. The Bar approved the resignation provided that Mr. Conrad would agree to have the resignation order set forth the details of the pending disciplinary cases. The pending cases are automatically dismissed in accordance with Florida Bar Integration Rule, article XI, Rule 11.08(5), when a petition for leave to resign is granted. No response was filed by Mr. Conrad.

Accordingly, the petition for leave to resign is hereby granted, effective immediately, and costs are taxed against respondent in the amount of $397.15.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. John L. MAYNARD, Respondent.
    No. 55560.
    Supreme Court of Florida.
    May 31, 1979.
    Rehearing Denied July 24, 1979.

      Donald A. Lykkebak, Bar Counsel, Orlando, and David G. McGunegle, Branch Staff Counsel, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    Howard R. Marsee, of Pitts, Eubanks & Ross, Orlando, for respondent.
   PER CURIAM.

In this proceeding by The Florida Bar against John L. Maynard, a member of The Florida Bar, we are asked to review the referee’s recommended discipline of two months’ suspension with automatic reinstatement. We have jurisdiction pursuant to Florida Bar Integration Rule, article XI, Rule 11.09.

In his report rendered October 19, 1978, the referee found that respondent had violated certain provisions of The Florida Bar Code of Professional Responsibility and Integration Rule and recommended discipline of two months’ suspension with automatic reinstatement. Complainant filed the referee’s report with this Court on November 17, 1978, thereby commencing the running of the thirty-day period for initiating review set forth in Florida Bar Integration Rule, article XI, Rule 11.09(3)(a). On December 4, 1978, complainant filed a motion to return the case to the referee for further proceedings and a motion for extension of time beyond December 18, 1978, to file a petition for review. On January 10, 1979, we denied the motion to remand the case to the referee but granted complainant an extension of time to file its petition for review until January 15, 1979. Notwithstanding the extension, the Bar did not file its petition until January 17, 1979.

Florida Bar Integration Rule, article XI, Rule 11.09(3)(a) provides:

Proceedings for review shall be commenced within 30 days after the mailing date of a letter from the Executive Director or Staff Counsel serving a copy of the referee report on the respondent. The proceeding shall be commenced by filing with the Supreme Court a petition for review specifying those portions of the report ®of a referee sought to be reviewed. Within 10 days after service of such petition the opposing party may filed a cross-petition for review specifying any additional portion of the report or judgment which said party desires reviewed. The filing of such petition or cross-petition shall be jurisdictional as to a review to be procured as a matter of right.

In this instance the rule is not jurisdictional; we have discretionary power to review petitions filed after expiration of the thirty-day time period. Florida Bar v. Rubin, 362 So.2d 12 (Fla.1978). However, we will not exercise our discretion absent a showing of compelling reasons why the petition was not timely filed. Id. In this case complainant has failed to show good cause for its default. We therefore decline to exercise our discretion, and complainant’s petition for review is hereby stricken.

Having carefully reviewed the referee’s report, we conclude that his findings are supported by the evidence. Further, it is not demonstrated that the referee’s recommended discipline is erroneous, unlawful, or unjustified. Fla.Bar.Integr.Rule, art. XI, Rule 11.09(3)(e).

Accordingly, respondent, John L. May-hard, is hereby suspended from the practice of law for a period of two months with automatic Reinstatement after that period pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(3). The suspension shall be effective on July 2, 1979, thereby giving respondent time to take the steps necessary to protect his clients.

Costs in the amount of $1,881.40 are hereby taxed against respondent.

It is so ordered.

ENGLAND, C. J., ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

HATCHETT, J., concurs in result only.