text:
    Joseph Carlos CARLILE, alias v. STATE.
    6 Div. 937.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Lewis Fred Pickard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for robbery of a pharmacy, convicted by a jury, and sentenced by the court to thirty years imprisonment.

The alleged robbery occurred in the afternoon of February 20, 1978, in Jefferson County.

Appellant complains and argues that the court erred in refusing to charge on the lesser included offenses of robbery.

After the conclusion of the oral charge the Deputy District Attorney stated that he was satisfied with the court’s oral charge, and the defendant answered the court’s inquiry: “Defense objects to no mention of lesser included offenses in this charge”.

There were no requested charges in writing by either the State or defendant. Pre-termitting consideration of the sufficiency of the objection, we hold that the evidence, which was undisputed, clearly showed that a robbery as charged in the indictment was committed. The only factual issue was whether or not defendant-appellant was the one who committed the robbery. We note that defendant did not take the stand. The court, in view of the evidence, was not obligated to charge on lesser included offenses. Browder v. State, 54 Ala.App. 369, 308 So.2d 729(7), cert. den. 293 Ala. 746; Brooks v. State, 36 Ala.App. 310, 55 So.2d 366(2).

A second contention is that the trial court committed error in allowing the State to introduce evidence relative to mug shot photographs of defendant.

This mug shot was a photograph of defendant shown the .victim of the robbery and two other employees for identification of the alleged robber. This photograph was one of eight or nine others shown the above persons, but not in each other’s presence. These three persons promptly selected the picture of defendant as the guilty person who did the robbing.

Mrs. Mullendore, the victim, and one of the employees, and Laney Christopher, the other testified in court. The third witness, an employee by the name of David Wiley, did not testify. Wiley was at work in the drug store when defendant was allegedly present, but left before the actual robbery took place. Sergeant Thornton, a witness for the State, testified that Wiley had written on the back of the picture to the effect that this was the man “who robbed us”. Complaint is made that defendant was denied his constitutional right “to confront and cross-examine the witness”.

The record shows that Sergeant Thornton did testify to the effect indicated, supra, but it was brought out on cross-examination by defendant’s counsel and not by the State on direct examination of Sergeant Thornton. (Record pages 104, 105, 106).

Appellant’s assertion of error with respect to this testimony has no merit.

There is no merit in the motion for a new trial. It was properly overruled. There was ample evidence supporting the indictment that defendant was the guilty robber. There is only one ground in the motion, namely, the “verdict was against the great weight of the evidence”.

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.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Joseph Carlos CARLILE.
    78-687.
    Supreme Court of Alabama.
    July 27, 1979.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: DeCARLO, Judge.

text:
    Kenneth LIVINGSTON v. STATE.
    3 Div. 30.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.
    Rehearing Denied July 17, 1979.
    Elno A. Smith, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Arson; 1st degree, four years; five years probation.

Alma McCormick testified that the appellant was married to her mother, Margaret Livingston. She recalled that, on August 12, 1978, she was living in a trailer at 138 Whitefrost Drive, with her husband and two children, as well as her grandmother, mother and sister, Gina Hall.

According to McCormick, the trailer burned on August 11, 1978, and she had gone to see it after it had burned. Prior to that, she had taken her mother from the trailer to the hospital because her mother had been badly beaten. She stated that her mother “had bruises on her head . arms [and] stomach” and was in a “depression-like . . . state of mind.”

Further, she said that, when she left the trailer to take her mother to the hospital, the lights were on and that the trailer was locked. McCormick also stated that she never personally saw the appellant beat her mother.

During cross-examination, McCormick testified that the appellant was her stepfather and that, on August 11, 1978, he was not living in the trailer with the other seven people. She testified that she had left work about 10:30 or 11:00 P.M., and had taken her mother, who had been drinking that evening, to the hospital.

McCormick stated that, on the night in question, when she went to the hospital with her mother no one was left in the trailer and that her son and her sister were across the street with a neighbor.

Cecil Brindle testified that on August 12, 1978, he lived at 141 Whitefrost Drive in the Carlisle Trailer Park and that the appellant, Kenneth Livingston, lived in the trailer “directly across the street” from his trailer. He stated that he recalled the night in question because the youngest daughter from the Livingston trailer came to his house to use the telephone and that she had called the paramedics.

Brindle said that he and his wife went across the street to see Margaret Livingston who was in her front yard, and stated that she was “real shook up.” At the time, he described her as holding her side and complaining that she was hurt. He said that this occurred at night and that, after the paramedics came, Mrs. Livingston was taken to the hospital by her daughter. He said that he and his wife were asked to keep one of Mrs. Livingston’s grandchildren and her youngest daughter, Gina.

According to Brindle, the appellant drove up to the Livingston trailer about ten or fifteen minutes later. He entered the trailer and went in and out several times. On one of these occasions, he opened his trunk and got something out of the trunk and re-entered the trailer. Brindle said he lived on a dead-end street and that the appellant, at one point, turned his car around so that it would be “facing out.”

Afterwards, the appellant came over to Brindle’s trailer and asked if he could borrow a match. Brindle stated that he gave appellant a match book containing “one or maybe two matches” to light his cigarette.

At that point, the appellant returned to his trailer and stayed for about five minutes. When the appellant came out the door of the trailer, Brindle said he could see “flickering light and he was going out and I ran out and I said hey, the trailer’s on fire.” According to Brindle, the appellant “just walked to his car and started driving off.” At that point, Brindle stated that he got the appellant’s tag number and called for his wife to call the fire department. Brindle added that “the trailer just went up real quick.”

During cross-examination, Brindle said that Mrs. Livingston had been taken away about 11:00 P.M. and that the appellant arrived at the trailer some twenty or thirty minutes later. After borrowing a match for a cigarette, the appellant came out of the trailer on the last occasion, walked across the yard “real slow: and drove away in the same manner.” Brindle stated that he “hollered” at the appellant from across the street, as he was walking to his car, but explained that he did not know whether or not the appellant heard him at that time. Brindle stated that the fire department arrived about 11:40 P.M.

On further testimony, Brindle described the streets of the trailer park as being “not as wide as a regular residential street.

Gina Hall testified that she was ten years old and that the appellant was her stepfather. She said that she was living at 138 Whitefrost Drive on August 11, 1978, with her grandmother, her mother, and the appellant.

It was Gina Hall’s testimony that on the night in question, she watched the appellant get something out of the trunk of his car and go inside the trailer and then come over to Cecil Brindle’s trailer to borrow a match. She said that the appellant went back and stayed inside the trailer for a “little while.” He then came out of the trailer and was getting into his car when she said she saw the fire. She stated that “[t]he house went up in fire after he got, he was getting into the car.”

During cross-examination she testified that she was now living with her mother and the appellant.

Warren Burroughs was the assistant fire marshal for the City of Montgomery Fire Department and, on August 12, 1978, was the fire investigator. He testified that he investigated the fire at 138 Whitefrost Drive, which involved a “twelve by sixty-five mobile home.”

Burroughs stated that he arrived at the scene shortly after midnight and found that “one end of the trailer was completely gutted.” He said that he went through the full length of the trailer to the bedroom at the other end, where there had been another fire, and explained that there was “no communication from the original fire” on the one end with the bedroom on the other end.

He explained that the fire in the bedroom at the other end of the trailer had only partially burned the bed. The walls, ceiling and floors bore no indication of fire. Further, he said that, in his expert opinion, “[w]e had two separate fires set,” and that he thought “both of them started on the bed.”

During cross-examination, Burroughs stated that he did not find any indication of volatile substances such as gasoline, kerosene or coal oil. He also said he did not find any indication that wiring was connected with the fire.

On further questioning, Burroughs stated that, although he could not find any petroleum products, he did find combustible materials such as bed linens. He also admitted that the trailer contained “a lot of combustible things.”

Howard C. Howell owned and operated Big Deal Mobile Homes in Montgomery, Alabama, and stated that he was acquainted with the appellant and his wife, Margaret Livingston. He testified that he had sold them a used mobile home in May of 1978, for “Sixty-nine hundred plus the tax,” and that they had paid a total of some seven hundred dollars in a down payment. He further testified that Mrs. Livingston had signed the check for the down payment and that he had subsequently sold the sales contract to General Electric Credit in Birmingham. He stated that the sales contract was signed by Kenneth E. Livingston and Margaret Livingston.

During cross-examination, Howell explained that the invoice was in the name of Kenneth E. Livingston and that the conditional sales contract was also in that name.

On further questioning, he stated that the contracts required the husband and the wife to sign. Further, he said he had Kenneth E. Livingston’s name only appear at the top of the contract, but that both husband and wife had signed at the bottom.

At that point, a discussion was held outside the hearing of the jury and the court made the following inquiry:

“MR. BELL: Do you have a Bill of Sale in addition to that?
“THE WITNESS: That is the Bill of Sale.
“THE COURT: Who would own the trailer at the end of the contract?
“THE WITNESS: Both husband and wife. See, what G. E. requires . In other words this is just showing they accepted delivery and invoice for buying tags or whatever.
“THE COURT: So who owns the property right now?
“THE WITNESS: G. E. still owns it, General Electric Credit in Birmingham.
“THE COURT: Well that’s another problem, isn’t it?
“MR. SMITH: That’s another variance if G. E. owns it.
“THE COURT: That’s what I’m back here for right now. I think in a conditional sales contract the owner of the property is General Electric right now. This is one of those installment sales contracts where the — ”

After a lengthy discussion, the sales contract was admitted into evidence without objection.

During further cross-examination, Howell acknowledged that Kenneth E. Livingston’s name appeared on the invoice and that the sale of the trailer was based on the credit of the appellant, Kenneth E. Livingston. Further, he stated that under the line on which the signature of Margaret Livingston appeared, the contract indicated that this was the signature of the “co-buyer.”

The State next called Margaret Livingston, the appellant’s wife, who exercised her marital privilege not to testify against her husband.

At that point, the State called Marie Stevenson. She testified that the appellant was her son-in-law and that, on the 12th of August, 1978, she was living in the Livingston’s trailer, located on Whitefrost Drive in the Carlisle Trailer Court. She said that also living in the trailer at the time were her daughter and son-in-law, the appellant, as well as her granddaughter with her husband and their two children.

Further, Mrs. Stevenson testified that she recalled the night the trailer burned and said that she remembered her daughter having scratches on her neck and blood coming from her mouth. She also said that she and her granddaughter had taken her daughter to the hospital that night, and when they returned the next morning, the trailer had burned.

According to this witness’ testimony, there had not been any recent difficulty between the appellant and her daughter, Margaret Livingston. She explained “[t]hey had little arguments like family fusses, or something like that but I didn’t hear any threats.” However, after her recollection had been refreshed, she did remember that the appellant had said “that if he couldn’t live there, there wasn’t anybody else going to live there and he would burn it to the ground first.”

During cross-examination, Mrs. Stevenson stated that the appellant was living in the trailer at the time it burned and added “he had moved back in there that morning.”

At the end of her testimony, the State rested its case and the appellant made a motion to exclude the State’s evidence on the grounds that the State had failed to prove that the property was that of another, rather than that of the appellant.

Counsel for the appellant also argued that the State failed to prove that the appellant did not have express permission to burn the property, and that there was a fatal variance in the indictment.

The appellant’s motion was overruled and the appellant took the stand in his own behalf. He testified that “back in August, 1978,” he lived in a mobile home located in the Carlisle Trailer Park on 138 Whitefrost Drive. According to the appellant, the trailer belonged to him, although his wife had made the down payment out of their joint checking account. The appellant stated that all the payments made on the trailer had been made by him, and that his wife had not been employed at any time during their marriage.

He recalled that, on the day in question, he and his wife had been drinking that morning and that, after he had cut his lawn, he and his wife went to “Jake’s Fish Camp” and “drank some.” Afterwards, they got into an argument which resulted in the appellant hitting his wife and then letting her out of the car.

He stated that, at that time, he went back to the trailer and, when he arrived, all the doors were open and the lights were on. He said he drank two more beers, attempted to “fix a can of soup” and, after borrowing a match, smoked a cigarette. He admitted borrowing a match from Brindle, but said he did not hear Brindle “holler” at him. Further, he denied setting the fire.

During cross-examination, the appellant admitted that he had been convicted of larceny on two occasions and had been sentenced to one year in one case and thirteen months in the other.

The appellant said that, on the night in question, he had hit his wife but that “she also swung at me.” However, the appellant explained, that when he hit her, “it wasn’t much harder than a slap on the side of the face.”

The appellant went on to explain that his wife received the bruises and scratches when she attempted to get out of the car and fell. The appellant stated that he was attempting to stop the car at the time but that she had opened the door and had tried to leave the car before he stopped.

Appellant said that, although his wife and mother-in-law had said that he had made threats to burn the trailer, he did not remember making such threats.

Further, he said that he had not gone back to see the trailer but he had learned that his belongings in the trailer were also burned. He explained that he did not want to go back to the trailer because “I didn’t want no trouble.” According to appellant, he had gone back out to see his wife the night the trailer burned and his wife’s son and another boy “jumped on” him, after which he was in the hospital for over a week.

On further questioning, the appellant said he and his wife went on living together after this incident and also stated that his wife never gave him permission to burn the trailer and that he never did.

I

The appellant contends that the State failed to prove a prima facie case of arson. He argues that the State failed to prove that he willfully set fire to a dwelling (trailer) and that it was the property of another.

Arson, as defined by the Supreme Court of Alabama, in Adams v. State, 62 Ala. 177, is an offense against the possession rather than against title or interest. Further, it is the possession, not the tenure or interest in the property, which must be described. Therefore, the indictment must aver that it was the house- of him or her who had “the actual occupancy.” Burton v. State, 39 Ala.App. 332, 101 So.2d 564.

In brief, the appellant concedes that the State met its burden as far as proving appellant set fire to the dwelling in question. He states that “apparently the State met its burden in proving the appellant actually set fire to a dwelling as the jury found him guilty. . . ”

As can be seen from the testimony recited above, the appellant was seen leaving the trailer by a witness who lived across the street. The witness stated that, as the appellant left the trailer, he saw “flickering light inside” the trailer. Also, the appellant’s stepdaughter stated that she was at a neighbor’s house across the street and she, too, testified that she saw the fire when her stepfather left the trailer and got into his car.

Under these facts, we believe that the State met its burden of proving that the appellant willfully set fire to the trailer.

Regarding the appellant’s contention that the State failed to prove that the property burned was that of another, the evidence recited above shows that the appellant’s wife was in possession of the trailer at the time it was burned. His stepdaughter, Alma McCormick, testified that the appellant was not staying in the trailer on the night it burned.

Although this fact is contested by appellant’s stepdaughter, Gina Hall and his mother-in-law, this discrepancy became a question for the jury in its deliberations. Under the facts in this case, there was sufficient evidence to show that possession and occupancy were in the wife of the appellant. Adams v. State, supra.

II

The appellant complains that the trial court committed reversible error when it refused to grant defendant’s motion to exclude the State’s evidence. He argues that, because the State failed to prove the appellant did not have express permission to burn the property, his motion should have been granted.

In Williams v. State, 177 Ala. 34, 58 So. 921, the Supreme Court of Alabama, in an opinion written by Justice Mayfield, declared:

“[T]hat an indictment charging the husband or the wife with arson of the property of the other need not allege the relationship of the parties, nor negative the fact that the property was burned without the express consent of the owner to so burn.”

In the absence of evidence tending to show consent was given, it would seem to follow that the State was not under an obligation to prove want of consent. Here, there was no evidence of consent.

Therefore, it is our judgment that the trial court was correct in refusing to grant the appellant’s motion to exclude on the grounds stated.

Ill

The appellant next complains that his motion to exclude should have been granted because there was a fatal variance in the indictment and the proof. The indictment in this case reads as follows:

“KENNETH LIVINGSTON, whose name is to the Grand Jury otherwise unknown, wilfully set fire to, or burned, or caused to be burned, or aided or procured the burning of a dwelling house, to-wit; a mobile home located at 138 White Frost Drive, Montgomery, Alabama, the property of Margaret Livingston. . . . ”

Under the rationale in Adams v. State, supra, no variance existed. The State’s evidence clearly showed that Margaret Livingston was, in fact, in possession, although there was some question as to who was title holder of the trailer.

IV

The appellant insists that the trial court committed error when it charged the jury in the following manner:

“There first must have been a building burned and it must have been willfully— which means basically intent—and maliciously burned. Those are basically the elements that are involved. In addition, it must have been the property of another. We are not talking about ownership here; ownership is not what we are talking about in arson. What we are talking of relates to actual occupancy, actual occupancy; not the nature of the estate or claim of the occupant. In addition, more than one person under the law may be an occupant or have a possessory interest in a piece of property. If I own Forest Hills Shopping Center with fifteen other people I am an owner of it to some extent but if I were to go burn it under our law I could be guilty of arson.” [Emphasis added.]

The appellant insists that this illustration given by the trial judge was confusing and erroneous.

This specific question was answered in Adams v. State, supra, and in Burton v. State, supra. Each held that the crime of arson was an offense against possession rather than against title or interest.

Based on the foregoing recitation of facts, we are of the opinion that the proof submitted by the State was sufficient to make out a prima facie case of arson and was sufficient to present a question for the jury. Winslow v. State, 76 Ala. 42; Burton v. State, supra.

We have examined this record and have found no error prejudicial to the appellant. Therefore, the judgment of conviction by the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Woodrow Gordon CHAMPION v. STATE.
    3 Div. 985.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.
    Collier Carlton, Carlton & Carlton, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Woodrow Gordon Champion was charged in a two-count indictment, to which no demurrer was interposed, with indecent molestation or attempt to take indecent liberties with the prosecutrix, a female child under sixteen years of age. Appellant entered a plea of not guilty, and trial was entered upon with a verdict being returned by the jury finding the appellant guilty as charged in the indictment. The trial court then entered judgment, which set sentence at five years imprisonment in the penitentiary. The appellant filed a motion for new trial, which was overruled following a hearing thereon. From the judgment of the court, sentencing the appellant, and the overruling of his motion for new trial, the appellant prosecutes this appeal.

The prosecutrix testified she was twelve years of age and formerly resided, on July 1, 1978, with her mother and father in a trailer park in the City of Montgomery. She testified she attended a junior high school in Montgomery.

The prosecutrix indicated that, shortly after noontime on Saturday, July 1, 1978, Mr. and Mrs. Champion, who lived next door to her parents at the trailer park, came over and began having some drinks and listening to their stereo player. Later that afternoon, the prosecutrix stated, she went next door to the Champions’ house trailer and there spent about one hour watching television. She then returned to her parents’ house trailer where her parents were still entertaining the Champions. She stated that she stayed there about thirty minutes, then went back to the Champions’ trailer. She stated that she was wearing a pair of blue jeans, a pullover shirt, and her panties. She stated that she dozed off to sleep, lying on the sofa, watching television. She stated that she was awakened suddenly by someone who was removing her blue jeans and pants and thought at first it was her mother. She looked up and recognized the appellant, Woodrow Gordon Champion, and “he had his mouth about one-half inch away from my below part” (R. p. 12). The prose-cutrix stated that she attempted to push Mr. Champion away from her, but that she was frightened and that he turned her over and “he tried to put his mouth on my behind” (R. p. 13). She stated that she yelled, “Stop,” and started to pull her clothes back on, and the appellant stood up and put the bedspread over her, then went back to his bedroom and went to bed. The prosecutrix stated that she waited a few minutes and went to her parents’ trailer. She knocked lightly on the door because she was afraid the appellant was following her. She stated she heard her mother say, “I will be to the door in a minute,” and upon being admitted, she was crying real bad and told her mother what had happened. She stated that her mother then awakened her father and telephoned the Montgomery police.

A certified copy of the prosecutrix’s birth certificate was admitted and showed her date of birth to be November 17, 1965.

On cross-examination, the prosecutrix testified she and her parents had moved since this incident to another section of Montgomery, and that she was the only child of her mother and father. The prose-cutrix also stated that the appellant was living with a woman who called herself Mrs. Champion and they had a two-year old boy. She said that she had been asked to go back to the Champions’ trailer and look after their little boy. She stated that the Champions had visited with her parents for about five or six hours when the incident occurred, and that she did not have supper that evening. She related that she saw her father and Mr. Champion go to the liquor store earlier that afternoon and then come back. She stated that she had fallen asleep in the Champions’ trailer after watching television before being aroused by Mr. Champion, the appellant, and that, after removing her blue jeans and pants, the appellant had put “his mouth real close to me, and he stayed there five or ten seconds,” that she was not sure how long.

S. H., the mother of the prosecutrix, stated that she and her husband had resided at a trailer park in the City of Montgomery on July 1, 1978. She stated that the appellant and his wife lived in a trailer next door and had come over during the afternoon and evening of July 1 for some drinks and to listen to the stereo. She stated that her daughter had gone next door to watch television and to look after the Champions’ twenty-two month old baby. She stated that her daughter returned shortly after 12:00 midnight and rapped on the door. She stated that she had on a pullover shirt and a pair of blue jeans and her panties when she returned. She stated that her daughter had gone to sleep earlier that evening, lying on the sofa at the Champí-ons’ trailer. Mrs. H. indicated that Mrs. Champion had placed a bedspread over the prosecutrix when they realized she was asleep, and that she had let her stay there rather than awaken her. She stated that her daughter had knocked “kind of lightly” on the door because she was afraid and “she thought the appellant, Mr. Champion, was behind her and going to get her.”

Mrs. H. stated that, after her daughter told her what happened, she awakened her husband and telephoned the Montgomery police.

Montgomery Police Officer James S. Griffin testified that, on the early morning of Sunday, July 2, 1978, he answered a call to go to a residence in the southwestern section of the City of Montgomery. He stated that he went to the house trailer of Mr. and Mrs. R. H. After talking with this family, he went next door, at about 2:00 a. m., to the house trailer of the appellant and knocked on the door. He stated that no one answered and that he waited a few minutes until another officer joined him, then he went back over with Police Detective Island and Officer Bloodsworth, and that, after knocking again and getting no response, Officer Island opened the door and there observed the appellant kneeling on a sofa, looking through the blinds.

Montgomery Youth Aid Detective Steve Island stated that, in the early hours of Sunday, July 2, 1978, he went to the trailer home of Mr. and Mrs. R. H., which was located in the southwestern section of Montgomery. He stated that he talked with Mrs. H. and her daughter, then went next door with Corporal Griffin and Officer Jerry Bloodsworth, and his partner. After a series of knocks with no response, Island stated that he opened the door to the appellant’s house trailer and there observed the appellant kneeling on the sofa, peering through the blinds. He stated that the officers then placed Champion under arrest shortly after 2:00 a. m. for questioning. Officer Island stated that he “detected the odor of beer on the appellant’s breath.” The appellant’s motion to exclude the State’s evidence was overruled.

Woodrow Gordon Champion testified that, on July 1 — 2, 1978, he and his common law wife, Ella Mae Cree, lived in a house trailer in the southwesterh section of Montgomery. He stated that Mr. and Mrs. R. H. lived next door to them in a house trailer with their young daughter, the prosecutrix. He stated that soon after the noon hour, Mr. H. brought a drink over to him at his trailer, and after drinking this he invited him to come over to his trailer to listen to the stereo and have some drinks. He stated that, during the afternoon, he and his wife, and the H.’s, drank one-half gallon of liquor. He stated that he and his wife returned to their trailer about 10:00 p. m. to put the baby to bed, and that they then returned to their next door neighbor’s for more drinks. He stated that about midnight he and his wife again returned to their trailer and she fixed him something to eat, and they went to sleep. He stated that about a couple of hours later he heard someone knocking on the door to his trailer and that he got up and was seated on the sofa, looking out the window, when some officers came in. He denied ever removing any of the prosecutrix’s clothing or attempting to do so.

On cross-examination, the appellant admitted to the following convictions: Burglary, three to five years, Georgia, June 26, 1954; Burglary, two to five years, Georgia, September 11, 1959, which was reduced to one year and $50.00 fine; Interstate Transportation of stolen vehicle, two years, Georgia, February 9,1969; Grand Larceny, eighteen months, Georgia, February 24, 1971.

Mr. Champion indicated that he and his wife, together with Mr. and Mrs. H., drank two one-half gallons of whiskey on July 1, 1978. He stated that the only time he went back to his trailer was to go to bed and eat a bowl of soup, which his wife fixed. He again denied trying to undress the prosecu-trix or attempting to molest her.

There was no exception to the trial court’s oral charge, and the trial court gave twelve of the appellant’s written requested charges, denying only two affirmative charges and two others dealing with the weight of the evidence.

i

Prior to trial, the appellant filed a plea of former jeopardy, which is as follows, omitting formal parts (R. p. 69):

“PLEA OF FORMER JEOPARDY
“Comes the defendant by his attorneys, Carlton & Carlton, and for plea says: “He has once been in jeopardy for the offense of which he is now charged in this indictment and that, at the September 18, 1978 session of the Circuit Court of Montgomery County, Alabama, the defendant was in due form arraigned and pleaded not guilty to the said offense charged, which was in substance as follows: the same two-count indictment which is the subject matter of the present offense charging the defendant with the offense of child molestation of one . H and that the defendant was thus put upon trial for such offense and, after he had pleaded to the same and was thus in jeopardy, that a jury was duly struck and sworn, that opening statements were made by both the counsel for the state and for the defense, that the indictment was read, and that the Court on its own motion declared a mistrial. “All of which the defendant is ready to verify, and he prays judgment of this court that he be discharged from the premises in the present indictment specified.
“Dated this the 20th day of September, 1978.
S/ C. Collier Carlton. Jr. C. Collier Carlton, Jr.
“CARLTON & CARLTON
25 Washington Avenue Montgomery, Alabama 36104
“SWORN to and SUBSCRIBED before me on this the 20th day of September, 1978.”

In addition, just prior to trial, the record reveals the following colloquy (R. pp. 3, 4, 5):

“MR. CARLTON: We have filed the plea of former jeopardy. Now, it is my understanding of the Taw that the State is then required to bring it to issue which Mr. Pool has done by filing a motion to strike. It’s then my understanding that we have a right to a trial on that issue. However, I have prepared a joint stipulation that we would offer the Court. Mr. Pool has not yet stipulated to it. What we would offer to do is to waive any jury trial on the issue and submit it to the Court so that the issue of the plea of former jeopardy will be determined by the Court, yes, sir, and then instead of offering any evidence, I know the Court is well aware there are official proceedings of the basis of our
“COURT: I take judicial knowledge of what took place.
“MR. CARLTON: Yes, sir. And that’s the stipulation that I have prepared.
“MR. POOL: I would sign it, Judge, on the condition that we enter into the record two more items. Number one, after the jury was struck the other day and it came to the attention of the Court that the law was that a motion to challenge for cause jurors over sixty-five had been erroneously denied that there was remaining on the jury one juror over the age of sixty-five that was juror number 68, Mr. Drury Sumner. There was, in fact, a disqualified juror, a juror who was on the jury wrongly. So, he was on that jury and he should have been off the jury.
“COURT: That’s right. I think I made a mistake in that.
“MR. POOL: All right. Now, the second thing is when the mistrial was entered on the Court’s own motion and I think the record is clear that it was the Court’s own motion and not the motion of the District Attorney and not the .
“COURT: No, it was my own motion.
“MR. POOL: All right, sir. Now, when that motion was entered there was no objection whatsoever raised by Mr. Carlton on behalf of the Defendant. I want those two things in the record and if they are, I think they already were, if they are, then I’ll sign this stipulation.
“COURT: I think that substantially states it.
“MR. CARLTON: I’ll stipulate that Mr. Sumner did remain on the jury .
“MR. POOL: And he is age 72.
“COURT: He was over sixty-five.
“MR. CARLTON: Yes, sir. And I stipulate that I did not make any objection
“MR. POOL: To the mistrial.
“MR. CARLTON: ... to the mistrial.
“COURT: Very well, then. That’s all in the record.
“MR. POOL: And I have filed a motion to strike this plea of former jeopardy.
“MR. CARLTON: Judge, this will be the plea and that’s his motion to strike and there’s the stipulation right there. I believe that makes our record straight, Judge. So the facts are before you.
“COURT: They are not really in dispute.
“MR. CARLTON: Yes, sir, that’s true.
“COURT: Gentlemen, I’ve given consideration to this matter already and I am going to grant the'State’s motion.”

Appellant asserts that the trial court erroneously granted the State’s motion to strike his plea of former jeopardy, and that such should have been sustained by the court below.

It is settled in Alabama that the mere arraigning of the appellant and pleading to the indictment does not place him in jeopardy. Parker v. State, 51 Ala.App. 362, 285 So.2d 526; Bassing v. Cady, 208 U.S. 386, 28 S.Ct. 392, 52 L.Ed. 540.

The rule applicable to the plea entered in this cause is well stated in Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901 (1961), as follows:

“Since 1824 it has been settled law in this Court that ‘The double-jeopardy provision of the Fifth Amendment * * * does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment.’ Wade v. Hunter, 336 U.S. 684, 688, 69 S.Ct. 834, 837, 93 L.Ed. 974. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146; Keeri v. State of Montana, 213 U.S. 135, 137-138, 29 S.Ct. 469, 470, 53 L.Ed. 734; see Ex parte Lange, 18 Wall. 163, 173-174, 21 L.Ed. 872; Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199. Where, for reasons deemed compelling by the trial judge, who is best situated intelligently to make such a decision, the ends of substantial justice cannot be attained without discontinuing the trial, a mistrial may be declared without the defendant’s consent and even over his objection, and he may be retried consistently with the Fifth Amendment. Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Dreyer v. People of State of Illinois, 187 U.S. 71, 85-86, 23 S.Ct. 28, 32-33, 47 L.Ed. 79. It is also clear that ‘This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served * * *,’ Brock v. State of North Carolina, 344 U.S. 424, 427, 73 S.Ct. 349, 350, 97 L.Ed. 456, and that we have consistently declined to scrutinize with sharp surveillance the exercise of that discretion. See Lovato v. State of New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244; cf. Wade v. Hunter, supra. In the Perez case, the authoritative starting point of our law in this field, Mr. Justice Story, for a unanimous Court, thus stated the principles which have since guided the federal courts in their application of the concept of double jeopardy to situations giving rise to mistrials:
“ ‘ * * * We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office. * * * ’ 9 Wheat., at page 580.”

See also Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891); Thompson v. United States, 155 U.S. 271,15 S.Ct. 73, 39 L.Ed. 146 (1894); § 12-16-233, Code of Alabama 1975.

Clearly the trial court properly granted the State’s motion to strike the appellant’s plea of former jeopardy in this cause as no evidence had been presented, and the trial court was endeavoring to give the appellant a jury from which no issue could be made as to qualification because of age.

II

Appellant calls attention to the testimony of the prosecutrix, saying that she was allowed to erroneously give details of her complaint to a third party into evidence.

We have carefully examined the two instances referred to (R. pp. 10-15) and find that in the prosecutrix’s testimony on these pages, she simply answered the questions of the district attorney regarding the assault on her by the appellant, Champion, and the trial court sustained the appellant’s attorney’s objection (R. p. 15) concerning the admission of any details to her mother. Prosecutrix was simply allowed to state that she made a complaint, but did not admit any details. We are of the opinion that this ruling was correct.

Secondly, appellant’s counsel refers us to R. pp. 32-33, wherein Mrs. H., her mother, was relating the girl’s knocking on the door, “kind of lightly, and she was crying when she let her in,” but that again the trial court merely allowed the mother to state that a complaint was made and the girl was crying, and did not knock too loudly because “she was afraid he was behind her and going to get her” (R. p. 33). This does not constitute “details of the complaint, but rather a part of the res gestae of the offense in question,” and, as such, was properly admitted. Price v. State, 41 Ala. App. 239, 128 So.2d 109 (1961); Ciervo v. State, Ala.Cr.App., 342 So.2d 394, cert. denied, Ala., 342 So.2d 403 (1976).

We are of the opinion that the trial court’s rulings in this cause were correct.

Ill

Appellant argues that the trial court erroneously overruled his motion to exclude the State’s evidence and his two requested affirmative charges, requested in writing, in the appellant’s behalf at trial, also his motion for new trial, challenging the sufficiency of the State’s evidence.

The appellant asserted the same matters in this motion for new trial, which was overruled by the trial court.

We have carefully considered these matters and are of the opinion that the State did present a prima facie case, thus, the trial court’s rulings on these matters were correct. Price v. State, 41 Ala.App. 239, 128 So.2d 109 (1961); Ciervo v. State, Ala.Cr.App., 342 So.2d 394, cert. denied, Ala., 342 So.2d 403 (1976); Westfaui v. State, 56 Ala.App. 519, 323 So.2d 404, cert. denied, 295 Ala. 427, 323 So.2d 406 (1975).

As to two remaining written requested charges, which were refused by the trial court, these charges were either properly refused under the evidence, or otherwise fairly and adequately covered by the trial court in its oral charge to which no exception was taken, or the several written charges given at the request of the appellant. § 12-16-13, Code of Alabama 1975; Ingram v. State, Ala.Cr.App., 356 So.2d 761 (1978), thus, no error appears.

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    The Petition of Andrew A. GRAHAM et al., on Behalf of Nine Condemned Men, Petitioners, v. STATE of Florida, Respondent.
    No. 56947.
    Supreme Court of Florida.
    June 22, 1979.

      Tobias Simon, Miami, for petitioners.
    Jim Smith, Atty. Gen., and Charles Stampelos, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This petition for the appointment of counsel was filed by eight volunteer attorneys who represent Learie Leo Alford, Gary E. Alvord, Willie Jasper Darden, Clifford Hallman, and Robert Sullivan, each of whom has been sentenced to death and has had his sentence affirmed by the Supreme Court of Florida and the United States Supreme Court. These eight petitioners are joined by Andrew A. Graham and Joan H. Bickerstaff, who represented John A. Spenkelink, executed on May 25, 1979. Petitioners also purport to seek relief for Vernon Ray Cooper and Howard Virgil Lee Douglas, both represented by public defenders, and Charles Proffitt, who is represented by privately retained counsel. Since the filing of this petition, Governor Graham on June 19, 1979, recommended clemency for defendants Learie Leo Alford and Clifford Hallman and signed death warrants for defendants Robert Sullivan and Charles Prof-fitt.

It is petitioners’ contention that because of the uniqueness and finality of the death penalty, the State of Florida should mandate the appointment of counsel for each death row inmate for the purpose of providing legal advice and representation for subsequent collateral relief applications in both state and federal courts and to pay the necessary costs thereof. This request for appointment of counsel and payment of costs is not predicated on any identified meritorious post-conviction grievance.

As admitted by petitioners in oral argument and confirmed by our independent research, no court has determined that there is a constitutional right to the assistance of counsel to aid in the preparation of a petition for post-conviction relief.

For the reasons expressed, we decline to grant the relief requested but note that all of these defendants are represented by counsel and that Florida has made liberal allowance for counsel to be appointed in post-conviction relief proceedings.

Each of these named death row defendants has been through the entire trial and appellate process in the state court system, and each has had his application for review denied at least once by the United States Supreme Court. Further, this Court on its own motion, to ensure compliance with the dictates of the United State Supreme Court’s decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), established a procedure whereby the petitioners or their counsel could seek relief under the Gardner decision. We have separately determined in prior proceedings that no Gardner relief is warranted for these defendants. In a number of instances some of these individual defendants have previously sought post-conviction relief and have had their applications denied. The chronological case history of each defendant named in this petition appears in the attached appendix.

The right to counsel in criminal proceedings has substantially evolved in the last forty-seven years. In 1932 the United States Supreme Court, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), held that the lack of effective assistance of counsel in a death penalty case was a denial of a fundamental right and, as a consequence, a denial of due process. In 1963 the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), held that states were obligated to provide counsel in noncapital as well as capital cases. In 1967 in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court required counsel in juvenile proceedings, and in 1972, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held that counsel was necessary for a petit offense prosecution whenever imprisonment could be imposed.

The United States Supreme Court has, however, rejected the mandatory requirement of counsel in all parole revocation proceedings, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and expressly held in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), that there is no constitutional right which requires a state to provide counsel to assist a defendant in obtaining discretionary appellate review, including the review of a state supreme court decision by the United States Supreme Court. Petitioners in this cause, however, request that we transcend the Ross decision and mandate the appointment of counsel whenever a defendant is under sentence of death for the purpose of advising him on possible future legal avenues of relief in both state and federal courts and to represent the defendant in those proceedings at state expense.

Clearly, the State of Florida has no obligation to provide counsel or costs in federal proceedings. This state only has an obligation to provide counsel for indigent defendants in its state courts. Neither this court nor an individual judge in the state system could appoint counsel to represent an indigent in the federal court system. Ross v. Moffitt specifically holds that there is no right of free counsel from the state for an appeal to the United States Supreme Court. This does not mean, however, that state-appointed counsel could not continue their representation and seek federal relief. Their professional responsibility may dictate this action, but, in our view, a state court could not mandate this action.

These defendants do have a means to obtain counsel in the federal courts because the federal system provides for attorney representation under the Federal Criminal Justice Act, 18 U.S.C. § 3006A(g) (1976), which in its relevant portion reads: “Any person . . . seeking relief under section 2241, 2254 or 2255 . . . may be furnished representation . . . whenever the United States magistrate or the court determines that the interests of justice so require . .

We recognize that we have the authority to appoint counsel for representation in the state court system. Historically, Florida was one of the first jurisdictions in this country after Gideon to provide a state public defender system to represent indigent defendants and to adopt a broad omnibus post-conviction relief procedure. This Court has specifically held that although there is no absolute right to counsel in post-conviction relief proceedings, the Court before which the proceedings are pending must determine the need for counsel and resolve any doubts in favor of the appointment of counsel for the defendant. In Hooks v. State, 253 So.2d 424, 426 (Fla.1971), this Court in an opinion by Mr. Justice Adkins specifically held:

The question in each proceeding of this nature before this Court should be whether, under the circumstances, the assistance of counsel is essential to accomplish a fair and thorough presentation of the petitioner’s claims. Of course, doubts should be resolved in favor of the indigent petitioner when a question of the need for counsel is presented. Each case must be decided in the light of the Fifth Amendment due process requirements.

See State v. Weeks, 166 So.2d 892 (Fla.1964). The adversary nature of the proceeding, its complexity, the need for an evidentiary hearing, or the need for substantial legal research are all important elements which may require the appointment of counsel. This appointment authority is discretionary, with any doubts being resolved in favor of an indigent defendant. There is no absolute duty to appoint counsel for an indigent defendant in a post-conviction relief proceeding unless the application on its face reflects a colorable or justiciable issue or a meritorious grievance. The court has the authority to summarily deny relief without appointment of counsel when the petition and record reflect it is without merit. Illustrations of the circumstances which warrant summary consideration are those that concern an issue that was or could have been raised in the initial appeal or were the subject of prior post-conviction proceedings or concern a legal issue clearly governed by existing case law or court rule. To warrant summary dismissal, the files and records must conclusively show that the applicant is not entitled to relief. See State v. Weeks, 166 So.2d 892 (Fla.1964).

Simple procedures to seek post-conviction relief and the means to have assistance and advice in preparing post-conviction relief petitions are available to these defendants. This Court has adopted a model form for use in motions for post-conviction relief pursuant to our Rule of Criminal Procedure 3.850. This form, designated as Rule of Criminal Procedure 3.987, is substantially similar to that now used in the federal system and is available to inmates in the state prison system.

The Florida state prison at Raiford where the named inmates are located provides through Florida Legal Services, Inc. a legal counseling service for assistance in filing contemplated state and federal post-conviction relief applications. Admittedly, this service does not constitute an individually appointed counsel for future unknown legal remedies, but it does provide a means of legal assistance in the initial preparation of post-conviction relief petitions. This program meets the test of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and has been specifically approved by the Fifth Circuit Court of Appeals in Hooks v. Wainwright, 578 F.2d 1102 (1978).

We are cognizant of the ABA Criminal Justice Standards 5-4.2, 22-3.1, 22-4.3 (1979), as well as National Advisory Commission on Standards and Goals for Criminal Justice, Corrections 2.2; National Conference of Commissioners of Uniform State Laws (NCCUSL), Model Public Defender Act § 2(b)(3); NCCUSL, Uniform Rules of Criminal Procedure 641(b); and National Legal Aid and Defender Association, National Study Commission 1.1. Our system appears to conform substantially with these standards. A majority of states do provide for the appointment of counsel in post-conviction relief proceedings either by statute or court rule. None, however, require an appointment of counsel prior to a claim for relief being filed.

We reject petitioners’ assertion that, because of the uniqueness and finality of the death penalty, we must appoint counsel for each death row inmate for legal advice and future collateral relief in state and federal courts.

It is our opinion and we so hold that there is no constitutional requirement for the appointment of individual counsel for an application for post-conviction relief until a colorable or justiciable issue or meritorious grievance prima facially appears in the appellant’s petition.

The record in this cause reflects that each named death penalty defendant is represented by counsel and that he has not only been provided with representation at trial and on appeal but counsel has also represented him on the discretionary review by the United States Supreme Court. Further, defendants Darden, Sullivan, and Proffitt have sought various types of post-conviction relief. [See chronology attached at Appendix I.]

The record reflects that each of these named defendants has had multiple days in court, and we fail to find any constitutional deprivation of counsel in any respect. The petition and the motion for stays of execution are denied.

It is so ordered.

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

APPENDIX

1. Alvord, Gary E., No. 45,542

Convicted — April 4, 1974

Sentenced — April 9, 1974

Florida Supreme Court appeal decided— September 17, 1975 (322 So.2d 533) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied — December 15, 1975

U. S. Supreme Court stay entered — January 26, 1976

U. S. Supreme Court certiorari denied— July 6, 1976 (428 U.S. 923) (Brennan and Marshall, J.J., dissenting)

U. S. Supreme Court rehearing denied— October 4, 1976 (429 U.S. 874)

Gardner order — May 6, 1977

Gardner response — May 12, 1977

Gardner relief denied — February 22, 1978 (no application for relief filed)

Sullivan v. Askew, No. 51,276 (Alford and Alvord also were petitioners)

Complaint dismissed — March 17, 1977

Stay denied by trial court — March 17, 1977

Florida Supreme Court stay denied— March 22, 1977

Florida Supreme Court appeal decided— June 30, 1977 (348 So.2d 312) (trial court ruling affirmed)

Florida Supreme Court rehearing denied — July 26, 1977

Florida Supreme Court stay granted— July 26, 1977 (30 days)

U. S. Supreme Court certiorari denied— October 3, 1977 (434 U.S. 878)

2. Cooper, Vernon Ray, No. 45,966

Convicted — June 21, 1974

Sentenced — July 1, 1974

Florida Supreme Court appeal decided— July 8, 1976 (336 So.2d 1133) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied — September 28, 1976

Florida Supreme Court stay granted— September 28, 1976 (30 days)

U. S. Supreme Court stay granted — October 26, 1976

U. S. Supreme Court certiorari denied— May 16, 1977 (431 U.S. 925) (Brennan and Marshall, J.J., dissenting)

U. S. Supreme Court rehearing denied— (431 U.S. 925)

Gardner order — May 6, 1977

Gardner response — May 18, 1977

Gardner relief denied — January 11, 1979 (no application for relief filed)

3. Darden, Willie Jasper, Nos. 45,056; 45,-108

Convicted — January 19, 1974

Sentenced — January 23, 1974

Florida Supreme Court appeal decided— February 18, 1976 (329 So.2d 287) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied — April 19, 1976

Florida Supreme Court stay granted— April 19, 1976

U. S. Supreme Court stay granted — May 14, 1976

U. S. Supreme Court certiorari granted— November 1, 1976 (429 U.S. 917);

U. S. Supreme Court certiorari dismissed — April 19, 1977 (430 U.S. 704) (Brennen and Marshall, J.J., dissenting)

Gardner order — May 6, 1977

Gardner response — May 16, 1977

Gardner relief denied — December 19, 1978 (no application for relief filed)

Fla.R.Crim.P. 3.850 motion denied by trial ■ court — May 21, 1979

Florida Supreme Court rule 3.850 appeal decided — May 22, 1979 (trial court ruling affirmed)

Darden v. Graham, No. 56,877

Complaint dismissed by trial court — May 16, 1979

Florida Supreme Court appeal decided— May 21, 1979 (stay denied, oral argument denied, trial court ruling affirmed)

Florida Supreme Court rehearing denied — May 30, 1979

4. Douglas, Howard Virgil Lee, No. 44,864 Convicted — September 28, 1973 Sentenced — December 4, 1973

Florida Supreme Court appeal decided— February 18, 1976 (328 So.2d 18) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied — March 12, 1976

Florida Supreme Court stay granted— March 12, 1976 (30 days)

U. S. Supreme Court stay granted — April 12, 1976

U. S. Supreme Court certiorari denied— October 4,1976 (429 U.S. 871) (Brennan and Marshall, J.J., dissenting)

U. S. Supreme Court rehearing denied— January 10, 1977 (429 U.S. 1055)

Gardner order — May 6, 1977

Gardner response — May 19, 1977

Gardner relief denied — March 2, 1978 (no application for relief filed)

5. Henry, James Dupree, No. 46,105

Convicted — June 26, 1974

Sentenced — June 26, 1974

Florida Supreme Court appeal decided— February 2, 1976 (328 So.2d 430) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied — April 21, 1976

U. S. Supreme Court stay entered — May 26, 1976

U. S. Supreme Court certiorari denied-— November 8, 1976 (429 U.S. 951) (Brennan and Marshall, J.J., dissenting)

U. S. Supreme Court rehearing denied— February 22, 1977 (429 U.S. 1124)

Gardner order — May 6, 1977

Gardner response — June 6, 1977

Gardner relief denied — January 30, 1978 (application for relief found to be without merit)

Florida Supreme Court rehearing denied — December 5, 1978

Florida Supreme Court stay granted— December 5, 1978

U. S. Supreme Court stay denied — December 12, 1978 (Powell)

Petition for U. S. Supreme Court certio-rari filed — May 4, 1979

6. Proffitt, Charles W., No. 45,541

Convicted — March 13, 1974

Sentenced — March 21, 1974

Florida Supreme Court appeal decided— May 28, 1975 (315 So.2d 461)

Florida Supreme Court rehearing denied — August 13, 1975

Florida Supreme Court stay granted— August 13, 1975 (30 days)

U. S. Supreme Court stay granted — August 29, 1975

U. S. Supreme Court certiorari granted— January 22, 1976

U. S. Supreme Court opinion — July ■ 2, 1976 (428 U.S. 242)

U. S. Supreme Court rehearing denied— October 4, 1976 (429 U.S. 875)

Gardner order — May 6, 1977

Gardner response — May 20, 1977

Gardner relief denied — February 27, 1978 (no application for relief filed)

Trial court denial of Fla.R.Crim.P. 3.850 relief — September 19, 1977

Florida Supreme Court rule 3.850 appeal dismissed- — June 29, 1978 (360 So.2d 771)

Florida Supreme Court stay denied — July 12, 1978

U. S. Supreme Court certiorari petition dismissed on petitioner’s motion — October 20, 1978 (99 S.Ct. 294)

Trial court denial of Fla.R.Crim.P. 3.850 relief — June 21, 1979

Florida Supreme Court rule 3.850 appeal pending

7. Sullivan, Robert A., No. 44,750

Convicted — November 8, 1973

Sentenced — November 12, 1973

Florida Supreme Court appeal decided— November 27, 1974 (303 So.2d 632) (judgment and sentence affirmed)

Florida Supreme Court rehearing denied —(no petition for rehearing filed)

Florida Supreme Court stay granted— December 9, 1974 (30 days)

U. S. Supreme Court stay granted — January 7, 1975

U. S. Supreme Court certiorari denied— July 6, 1976 (428 U.S. 911) (Grennan and Marshall, J.J., dissenting)

U. S. Supreme Court rehearing denied— October 4, 1976 (429 U.S. 873)

Gardner order — May 6, 1977

Gardner response — May 12, 1977

Gardner relief denied — January 10, 1979 (no application for relief filed)

Trial court denial of Fla.R.Crim.P. 3.850 relief — May 9, 1979

Florida Supreme Court rule 3.850 appeal decided — June 22, 1979 (trial court ruling affirmed)

Sullivan v. Askew, No. 51,276 (Alford and Alvord also were petitioners)

Complaint dismissed — March 17, 1977

Stay denied by trial court — March 17, 1977

Florida Supreme Court stay denied— March 22, 1977

Florida Supreme Court appeal decided— June 30, 1977 (348 So.2d 312) (trial court ruling affirmed)

Florida Supreme Court rehearing denied — July 26, 1977

Florida Supreme Court stay granted— July 26, 1977 (30 days)

U. S. Supreme Court certiorari denied— October 3, 1977 (434 U.S. 878)

      . The attorneys are Richard Lubin, William Sheppard, Robert A. Harper, Thomas Myers, Robert Grizzard, Charles Carlton, Roy Black, and Tobias Simon.

      . A public defender system was initially authorized by legislation adopted by chapter 63-409, Laws of Florida (1963).

      . This Court adopted Rule of Criminal Procedure 1 on April 1, 1963, In re Criminal Procedure Rule 1, 151 So.2d 634 (Fla.1963), only fourteen days after Gideon was rendered, as predecessor to our current Rule of Criminal Procedure 3.850.

      . Note, Discretionary Appointment of Counsel at Post-Conviction Proceedings, 8 U.Ga.L.Rev. 434 (1974).


text:
    In re FLORIDA EVIDENCE CODE.
    No. 57115.
    Supreme Court of Florida.
    June 28, 1979.
   PER CURIAM.

This Court has jurisdiction to adopt rules of practice and procedure under the provisions of article V, section 2(a), Florida Constitution.

The Florida Evidence Code was adopted unanimously by the legislature in the 1976 regular session. The act originally was intended to take effect July 1, 1977; the effective date of the code was delayed, however, until July 1, 1979.

It is generally recognized that the present rules of evidence are derived from multiple sources, specifically, case opinions of this Court, the rules of this Court, and statutes enacted by the legislature. Rules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, eviden-tiary rules may be procedural and the responsibility of this Court.

To avoid multiple appeals and confusion in the operation of the courts caused by assertions that portions of the evidence code are procedural and, therefore, unconstitutional because they had not been adopted by this Court under its rule-making authority, the Court hereby adopts temporarily the provisions of the evidence code as enacted by chapter 76-237, Laws of Florida, and subsequently amended by chapters 77-77, 77-174, 78-361, and 78-379, Laws of Florida, to the extent that they are procedural, as rules of this Court effective from and after 12:01 a. m., July 1, 1979. These rules shall govern all proceedings within their scope subsequent to that date, and all present rules of evidence established by case law or express rules of court are hereby superseded to the extent they are in conflict- with the code. See In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973).

Our approval and adoption of the evidence code is transitional and temporary in nature, and we request The Florida Bar, the Academy of Florida Trial Lawyers, and other interested parties to file any appropriate suggestions or objections on or before October 1, 1979, directed to specific rules of evidence contained in the code and stating (1) the basis why the challenged rule is procedural rather than substantive, and (2) why the rule is inappropriate in its present form.

It is so ordered.

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

      . Ch. 76-237, Laws of Fla. Several technical and stylistic changes have been made. Ch. 77-77, 77-174, 78-361, Laws of Fla.

      . Chapter 76-237, section 8, Laws of Florida, provided an effective date of July 1, 1977. The effective date was changed to July 1, 1978, by chapter 77-77, section 1; to January 1, 1979, by chapter 78-361, section 22; and to July 1, 1979, by chapter 78-379, section 1, Laws of Florida.


author: BOYD, Justice.

text:
    Curtis STEVENS, Petitioner, v. STATE of Florida, Respondent.
    No. 53096.
    Supreme Court of Florida.
    July 5, 1979.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Ira N. Loewy and Susan C. Minor, Asst. Attys. Gen., Miami, for respondent.
   BOYD, Justice.

This cause is before the court on petition for certiorari to review the decision of the district court of appeal in Stevens v. State, 351 So.2d 1077 (Fla. 3d DCA 1977). The court granted certiorari because of conflict with Cone v. State, 285 So.2d 12 (Fla.1973). Conflict of decisions gives us jurisdiction. Art. V, § 3(b)(3), Fla.Const.

The state by information charged that the petitioner, on October 25, 1975, committed acts constituting an aggravated robbery under sections 812.13(1) and (2)(a), Florida Statutes (1975). A separate count of the information charged that at the same time and place, petitioner and his codefendants “did unlawfully and feloniously display certain firearms” while committing robbery. Thus the latter count alleged a violation of section 790.07(2), Florida Statutes (1975).

Upon the return of guilty verdicts on both offenses charged, the trial court entered judgment and imposed separate sentences for the two cisimes. Thus the record proper reveals that separate sentences were imposed for these two offenses in a situation where the acts charged with regard to the “display” offense in fact constituted the element of “force, violence, assault, or putting in fear” required to be proved in connection with the robbery offense. We have held that under facts such as these separate sentences for these two offenses are improper. The district court affirmed and created conflict of decisions. Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973).

Petitioner’s other assertion of district court error is without merit.

The decision of the district court affirming the separate sentences for the crimes of robbery and display of a- firearm during the commission of a felony is quashed. The cause is remanded with directions to vacate the sentence imposed for the latter crime. In other respects the decision of the district court is affirmed.

It is so ordered.

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

OVERTON and ALDERMAN, JJ., dissent.


author: OVERTON, Justice.

text:
    Arthur Paul FRIZZELL, Appellant, v. Sandra C. Frizzell BARTLEY, Appellee.
    No. 55112.
    Supreme Court of Florida.
    July 5, 1979.
    Truman J. Costello, Fort Myers, for appellant.
    W. Cort Frohlich of Wotitzky, Wotitzky, Johnson, Mandell & Batsel, Punta Gorda, for appellee.
   OVERTON, Justice.

This case is before the Court on direct appeal from an order of the circuit court, Lee County, holding unconstitutional the authority to modify alimony and support prescribed in section 61.14, Florida Statutes (1977), because it allows an impairment of the agreement made by the parties. We have jurisdiction.

An agreement had been made between the parties to this action on September 11, 1962, which provided for the payment of certain sums to the wife for her support and the support of the children. The parties were divorced by order of the court dated October 11, 1962, but the agreement was not incorporated in the final divorce decree.

On May 18, 1978, the husband sought a modification of the September 11, 1962, agreement in the circuit court pursuant to section 61.14, Florida Statutes (1977). The wife moved to dismiss the petition for modification on the ground that section 61.14 allows judicial modification of the contractual obligations of private parties in violation of both the state and federal constitutions. The trial court granted the motion, directly holding the subject statute to be in violation of the United States Constitution and the Florida Constitution.

The first question we must answer is whether section 61.14 allows a modification of an agreement which was not incorporated in the divorce decree. We hold that it does and approve the language in Cordrey v. Cordrey. 206 So.2d 234, 241 (Fla. 2d DCA), appeal dismissed, 214 So.2d 617 (Fla.1968), cert. denied, 393 U.S. 527, 89 S.Ct. 866, 21 L.Ed.2d 752 (1969): “The modification statute does not require that the agreement entered into voluntarily by the parties be approved or even reviewed by any judicial tribunal prior to either party applying to the circuit court for modification thereof.” In our view, the statute clearly does not require that the agreement be incorporated into the decree.

The second issue we must determine is whether such a modification violates the state and federal prohibition of the impairment of contractual obligations. We hold that there was no unconstitutional impairment of contract and the agreement may be modified.

The statute allowing modification of alimony agreements has been in existence since 1935. It is our view that when the instant agreement was concluded in 1962, any preexisting state legislation on the subject became a part of the contract as fully as if it had been expressly incorporated. Home Bldg. & Loan Co. v. Blaisdell, 290 U.S. 398, 429-30, 54 S.Ct. 231, 78 L.Ed. 413 (1934); Belcher v. Belcher, 271 So.2d 7, 9 (Fla.1972); Schekter v. Michael, 184 So.2d 640, 641-42 (Fla.1966); Ivey v. State ex rel. Watson, 147 Fla. 635, 3 So.2d 345, 348 (1941); McCaskill v. Union Naval Stores Co., 59 Fla. 571, 574-75, 52 So. 961, 962 (1910). It necessarily follows that modification of the agreement cannot impair its obligations because the possibility of modification pursuant to section 61.14 is deemed to have been contemplated by the parties. We hold that section 61.14 is constitutional and allows modification of the settlement agreement even though it was not made part of the final decree.

The order appealed from is reversed and the cause remanded for appropriate modification proceedings.

It is so ordered.

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

      . Section 61.14(1), Florida Statutes (1977), provides:
      When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed or the child or children who are beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the Circuit Court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

      . Art. V, § 3(b)(1), Fla.Const.

      . U.S.Const. art. I, § 10; Art. 1, § 10, Fla.Const.


author: PER CURIAM. ALDERMAN, Justice,

text:
    THE FLORIDA BAR, Complainant, v. Daniel W. MESERVE, Respondent.
    No. 56573.
    Supreme Court of Florida.
    July 5, 1979.
    John A. Weiss, Branch Staff Counsel, Tallahassee, for complainant.
    James E. Miller, Jacksonville, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Daniel W. Meserve, a member of The Florida Bar, is before us on complaint of The Florida Bar and report of referee. Effective February 10, 1977, we temporarily suspended respondent pursuant to Florida Bar Integration Rule, article XI, Rule 11.10(5). On April 6, 1979, the referee’s report and record were duly filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.06(9)(b). Neither party has filed a petition for review.

The referee’s findings and recommendations are as follows:

II. FINDINGS OF FACT AS TO EACH ITEM OF MISCONDUCT OF WHICH THE RESPONDENT IS CHARGED:

After considering all of the pleadings and evidence before me, pertinent portions of which are commented upon below, I find:

AS TO CASE NOS. 4B-76-20, 4B-77-8 and 4B-77-19 (Count I)

In the fall of 1975, Respondent entered into a business relationship with one Calvin C. Campbell, who was a lay inmate at Rai-ford State Prison. Respondent and Campbell arranged for Campbell to solicit legal matters and draw legal pleadings which Respondent then signed or allowed his secretary to sign without exercising any control over drafting of the pleadings or the signature affixed thereto. Respondent received legal fees from one Peter Lamont, one Bernie Outlaw and one Clarence McGill as well as a partial retainer from one Albert Williams. He neglected and failed to pursue the motions contemplated by these clients’ cases for which he had accepted the fees.

Respondent received fees from Charles Ray, Arnold Gardner, Joe Williams, Slater Hunter and Ezoral Williams but did not perform any legal service in connection with the legal matters for which he was paid. In addition, Respondent has failed to perform agreed upon work as requested by Jessie Wolfe, Ray F. Childs or Evelyn Craft on behalf of Melvin Craft. He had met with some of these clients and during some of the meetings appeared to be intoxicated.

Respondent allowed a secretary to sign his name to pleadings prepared by a non-lawyer and to subsequently file said pleadings without any supervision by Respondent. The Respondent, through his attorney, did not contest any of the allegations contained in the Count herein referred to, requesting that a plea of nolo contendere be accepted by the Referee.

AS TO CASE NO. 4B-75-109 (which is embodied in Count II)

In April, 1975, Respondent was consulted by Mr. and Mrs. Holton regarding a dissolution of marriage proceeding. Respondent first represented Mrs. Holton in the dissolution proceeding and then after obtaining a default against Mr. Holton, Respondent apparently lost contact with his client and in an effort to facilitate the mutual desires of the Holtons he dismissed the action filed on behalf of Mrs. Holton (without her knowledge or permission) and shortly thereafter filed a petition representing the husband. The second petition also resulted in a default being taken by Respondent against the wife. As part of the prerequisite to the second default an affidavit was prepared by the Respondent, signed by the husband, and filed by the Respondent, in which among other things it was alleged “and that the residence of the wife is unknown”. It appears that Respondent did in fact know how to reach the wife through her mother in Fernandina. After it was suggested to Respondent by another attorney practicing in Fernandina that the situation might represent a conflict, Respondent indicates that he finally withdrew from the case.

AS TO CASE NO. 4B-76-13 (Count III)

On or about November 13, 1975, Respondent was advised in his office, by local law enforcement officers from the Fernandina Beach area that there was a capias for the arrest of one Michael Deonas. The Respondent had previously talked with the fugitive and knew that he was on the premises, which consisted of a converted house in which Respondent had his office. During this time, Respondent smelled of alcohol and had had some intoxicant the morning of the incident before coming to his office. He attempted to thwart a search of the house and when that was unsuccessful and the fugitive was located on the premises, Respondent then attempted to physically block the law enforcement officers from taking the fugitive into custody.

AS TO CASE NO. 4B-76-21 (Count IV)

During the month of January, 1975, Respondent was hired by a North Carolina couple, Mr. and Mrs. Charles Ervin, to handle the administration of the estate of Mrs. Ervin’s brother and to seek custody for them of the decedent’s minor children. He was paid approximately $1,200.00 for the work but did not perform the work for which he was hired nor did he refund any of the monies paid by the clients nor did he account for the monies. He kept two appointments with the client and was in a disheveled condition and his office smelled of alcohol. The Respondent was unprepared when he attended the custody hearing involving the two nephews and later advised his clients that he had not prepared and filed the necessary guardianship papers causing the Court to have to remind him to do so. After that hearing, he and the client, Mrs. Ervin, went to Respondent’s office and he was not sober. This particular incident occurred at 8:30 in the morning. The Estate was to pay the funeral bill of the decedent and monies were supplied as part of the approximately $1,200.00 to the Respondent to open the probate estate. Certain funds were to be generated by the sale of estate property but no estate was opened and the funeral bill was not paid. After that, despite repeated attempts by the client, the Respondent was never able to be contacted personally and did not perform the work for which he was engaged.

AS TO CASE NO. 04B-77-00X (Count V)

Respondent was the town attorney for the Town of Hillard and in such capacity received suit papers from the Town in an action styled “Bumby and Stimpson, Inc. vs. The Town of Hillard”. He received the notice of the suit eight days before a response was due. He made no effort to file any pleadings by reason of which a default judgment was entered against the Town in the amount of $165,292.72. Subsequently, he was relieved of his duties as Town attorney; new counsel was obtained by the Town and the default was set aside and the matter ultimately proceeded to settlement. The final amount of the settlement was substantially more advantageous to the Town than the default judgment.

III. RECOMMENDATION AS TO WHETHER OR NOT THE RESPONDENT SHOULD BE FOUND GUILTY:

AS TÓ CASE NOS. 4B-76-20, 4B-77-8 and 4B-77-19 (Count I)

I recommend that the Respondent be found guilty and specifically his conduct in hiring a non-lawyer to arrange professional employment and in agreeing to divide fees acquired through the result of said employment as well as allowing a non-lawyer to prepare pleadings which he allowed his secretary to sign, without supervision, and in receiving fees from clients for services which were not performed is in violation of Rule 11.02(5) of Article XI of the Integration Rules of The Florida Bar in that he solicited business and is in violation of D.R. 1-102(A)(2), 2-103(B), 2-103(C), 2-103(D), 3-101(A), 3-104(C), 3-104(D), 6-101(A)(3), 7-101(A)(l), 7-101(A)(2) and 7-101(A)(3) in that he attempted to circumvent a Disciplinary Rule through actions of another; compensated a person to recommend or secure his employment and requested that the person secure him employment and assisted in such employment. He aided a non-lawyer in the unauthorized practice of law and failed to exercise a high standard of care supervising non-lawyer personnel nor did he complete work for which he had received fees.

AS TO CASE NO. 4B-75-109 (Count II)

I recommend that the Respondent be found guilty and specifically that his conduct in representing both husband and wife in dissolution of marriage proceedings was in violation of D.R. 5-105(A) and 5-105(B) in that Mr. Meserve represented both sides of a matter when the continued employment in the second matter was likely to be adversely affected by the first matter. In addition, Respondent violated D.R. 7-101(A)(1) in that he failed to seek the lawful objectives of his client Mrs. Holton through reasonably available means.

AS TO CASE NO. 4B-76-13 (Count III)

I recommend that the Respondent be found guilty and specifically that he violated D.R. 1-102(A)(4), D.R. 1-102(A)(5) and D.R. 1-102(A)(6) in that he engaged in conduct involving misrepresentation and conduct which was clearly prejudicial to the administration of justice, all while his faculties were impaired to some degree by the ingestion of alcohol, such that it adversely reflected on his fitness to practice law.

AS TO CASE NO. 4B-76-21 (Count IV)

I recommend that the Respondent be found guilty and specifically that his conduct in the handling of the Estate of Jerry Mclver and the representation of Mr. Mclver’s sister and brother-in-law, Mr. and Mrs. Charles Ervin, violated D.R. 2-106(A) and D.R. 2-106(B) in that he charged a clearly excessive fee for the work which, in fact, was not performed. In addition, Respondent violated D.R. 6-101(A)(3) in that he neglected, grossly; a legal matter entrusted to him and in the same manner violated D.R. 7-101(A)(2), and, in addition, Respondent has violated Rule 11.02(4) of the Integration Rules of The Florida Bar in that he received monies, including advances for costs which he did not hold in trust and which were not applied for the purpose for which they were paid.

AS TO CASE NO. 04B-77-00X (Count V)

I recommend that the Respondent be found guilty and specifically that his conduct violated D.R. 6-101(A)(3) in that he neglected a legal matter entrusted to him by allowing a default to be obtained against his client. And D.R. 7-101(A)(2) in that he failed to carry out the contract of employment implicit in The Town of Hillard delivering to him certain matters in connection with litigation filed against the Town.

IV. RECOMMENDATION AS TO DISCIPLINARY MEASURES TO BE APPLIED:

I recommend that the Respondent be suspended from the practice of law in Florida for a period of two (2) years and indefinitely thereafter until he shall have proved rehabilitation. Since Respondent was temporarily suspended in February of 1977, I recommend that his two year suspension begin as of that date. Implicit in this recommendation is that Respondent be eligible for reinstatement if he is able to show rehabilitation and I recommend that proof of rehabilitation include, in addition, to his general fitness the following specific terms and conditions:

1. That Respondent remain active in Alcoholics Anonymous;

2. That Respondent shall make restitution to Mr. and Mrs. Charles Ervin of the sum of $1,200.00;

3. Respondent shall, within forty-five days after this Report is accepted by The Supreme Court of Florida, account for-all funds received from inmates of Raiford Prison, Belle Glade Correctional Institute or other inmates for whom work was to be performed and fees were received during the period commencing October, 1975 and ending with Respondent’s temporary suspension in February of 1977. Respondent shall file this list with the Clerk of The Supreme Court, copy to Staff Counsel and shall, as a condition of proof of rehabilitation, make restitution to each of said inmates of an amount deemed appropriate by Staff Counsel or if such can not be agreed upon between Staff Counsel and Respondent, by appropriate recommendation of a Referee appointed by The Supreme Court of the State of Florida, taking into consideration, the amount received and the work performed for each inmate.

4. Respondent shall comply with the notice provision of Integration Rule 11.10(6) as it applies specifically to the Ervins and the inmates referred to in the preceding paragraph.

5.That the Respondent shall reimburse The Florida Bar the sum of $1,500.00 as that portion of the costs incurred which should be taxed against Respondent.

Having carefully reviewed the record, we find the allegations of the complaint and each count thereof to be proved either by admissions of the respondent or by clear and convincing evidence. We therefore approve the findings and recommendations of the referee.

Accordingly, respondent, Daniel W. Me-serve, is hereby suspended from the practice of law for a period of two years and, thereafter, until he shall prove his rehabilitation under Florida Bar Integration Rule, article XI, Rule 11.10(3). The suspension shall be effective as of February 10, 1977. Proof of rehabilitation shall include, but not be limited to, full compliance with the specific terms and conditions contained in the referee’s report.

Costs of proceedings in the gross sum of $2,092.70 have been certified to this Court by The Florida Bar. The referee recommends that only $1,500 of the costs of the proceedings be borne by the respondent. Accordingly, costs in the sum of $1,500 are hereby taxed against the respondent the full payment of which shall be a condition to any application for reinstatement.

It is so ordered.

ADKINS, Acting C. J., and BOYD, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion.

ALDERMAN, Justice,

dissenting.

I am not convinced that a two-year suspension retroactive to February 10, 1977, is the suitable disciplinary measure to be applied in this case. The charges against respondent are such that, in most cases, would warrant disbarment. I would direct the parties to submit briefs directed to the suitability of the disciplinary measure recommended by the referee, as provided by Florida Bar Integration Rule 11.09(3)(f).


text:
    In re TRAFFIC COURT RULES 6.200 AND 6.470.
    No. 46571-L.
    Supreme Court of Florida.
    July 18, 1979.
    Richard E. Cox, Executive Secretary, for The Traffic Court Review Committee, Tallahassee.
   PER CURIAM.

Pursuant to a petition from the Traffic Court Review Committee, Rules 6.200 and 6.470 of the Florida Rules of Practice and Procedure for Traffic Courts are amended in the manner as appended to this opinion and said rules are hereby adopted. This amendment shall be effective immediately.

It is so ordered.

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

RULE 6.200. Procedure on Guilty or Nolo Contendere Plea

(a) If the Defendant pleads guilty or nolo contendere, the judge shall set the punishment and enter judgment accordingly and for this purpose may hear evidence on the nature of the case and after the hearing may refuse to accept the plea in his discretion.

(b) No plea of guilty or nolo contendere shall be received by the court other than by appearance of the defendant or the defendant’s attorney in open court or as herein provided in these rules. The acceptance by a court of a signed plea of guilty or waiver of trial, contrary to the provisions of these rules is forbidden.

(c) All pleas entered in open court shall be recorded by an official court reporter or electronic means.

RULE 6.470. Costs

(a) In those cases where a hearing is held to determine whether a traffic infraction was committed, court costs up to fifteen dollars may be assessed by the official against the offender in addition to the penalty imposed.