author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Roger GRAVES v. STATE.
    4 Div. 627.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    J. R. Herring, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted with Bryant Dixon for an alleged robbery and was tried separately and convicted. His punishment was fixed at ten years imprisonment, and he was sentenced accordingly. His only insistence on a reversal is as to the sufficiency of the evidence to justify (1) the denial of defendant’s motion to exclude the evidence at the conclusion of the State’s case and (2) the overruling of defendant’s motion for a new trial.

At the time the State rested its case, the evidence consisted chiefly of the testimony of the alleged victim, Glen Maddox. According to his testimony, he was a painter by occupation and lived in Blakely, Georgia; on the night of October 29, 1977, about 11:00 o’clock, he want to the “Speak Easy Lounge,” in Houston County, and drank a beer, paying for it out of money that he had in his billfold. The owner of the lounge and his son, defendant Roger Graves, were there at the time. Maddox stayed in the lounge about forty-five minutes and then went out and “sat down in my [his] truck.” Bryant Dixon joined him there and sat in the truck with Maddox. At about 12:00 o’clock that night, Roger Graves came toward the truck, “Opened the door and beat me [Maddox] up.” Roger Graves hit him, Bryant Dixon “went to beating me [Maddox] on the other side,” and they beat him until he didn’t know anything. His billfold was with him at the time of the beating; he had counted his money and he had at that time two thousand two hundred and seventy-three dollars. He had his glasses on before he was beat up, but they were not on after he “came to.” He checked for his billfold and it was missing. Maddox testified also that he became unconscious again and did not regain his consciousness until he was at the hospital, after being taken there by a patrol car, except for a slight return of his consciousness at a wreck, which the officer driving the patrol car went to on their way to the hospital. The following is the concluding part of his testimony:

“Q Do you recall if Defendant Graves hit you more than one time?
“A I can’t say, because I don’t know. When they both went to hitting on me, they knocked me out, unconscious.
“Q Can you recall anything after Bryant Dixon hit you the first time?
“A No.
“Q How long an interval or how much time elapsed between the time Graves hit you and when Dixon hit you?
“A They both went to beating me about the same time.”

Deputy Patrolman Curtis Howell, of Houston County Sheriff’s office, testified that in answering a call informing that there had been a robbery at the Speak Easy Lounge, he found Bryant Dixon in an International Pickup truck at the Speak Easy Lounge. He noticed a “lot of change” on the driver’s side of the truck. He said that it “Looked like there had been a scuffle and a pair of broken glasses.” He arrived at the scene about one o’clock. Bryant Dixon was intoxicated but “he seemed to be, talking like he knew what he was talking about.” He searched Mr. Dixon and found about six dollars in change on him.

State Trooper Lawler testified that after midnight on the night of October 29-30, 1977, he was in the act of passing the Speak Easy Lounge on the way to a wreck and that a man, whom he identified as Maddox, was standing in the road trying to flag a car down. Maddox appeared to be drinking, so he put him in the back of the patrol car. Maddox’s face had been cut and there were bruises on him. His jaw was swollen “just a little bit.” He took Mr. Maddox on to the wreck. Maddox was in “a dazed condition.” An ambulance took Maddox to the hospital.

Whatever the state of intoxication of Mr. Maddox at the time of the alleged robbery and thereafter, it was sufficient, we think, to weaken the reliability of his testimony, but it was not sufficient to obliterate it. It constituted substantial evidence that appellant and Dixon beat him severely, that before the beating he had a large sum of money on his person in a billfold, and that immediately after the beating his billfold was missing. His testimony constituted direct evidence that appellant committed “violence to his person,” charged alternatively in the indictment as one of the elements of the crime of robbery; his testimony constitutes strong, though not conclusive, circumstantial evidence that appellant took part in feloniously taking “from his [Maddox’s] person, and against his will” a large sum of money. There was direct or circumstantial evidence of all of the material averments of the indictment charging robbery. The trial court was not in error in denying defendant’s motion to exclude the evidence.

Appellant’s father testified that Maddox had been in the Speak Easy Lounge around 10:00 A.M. on the morning of October 29, 1977, and had three beers on that occasion. He said Maddox had been in the Speak Easy Lounge some twenty to thirty times prior to October 29, 1977. He said that on the night of October 29, Maddox was talking in a loud and boisterous manner, bought a beer for himself and Dixon, and attempted to get someone to play him a pool game on a bet of a hundred dollars, that Maddox was flashing a one hundred dollar bill. He said Maddox left' the lounge about 11:30, about the same time appellant left it, but that appellant and his girl friend had left before Maddox left. The witness said that as he closed the club, he went outside and saw both Maddox and Dixon slumped over in the truck. He said he returned to the lounge about 1:00 A.M. and no one was there. He said his son, appellant, “worked there to keep down trouble.”

Bobby Hayes and Mike Driver testified to the effect that Maddox had drunk excessively the night of the alleged robbery and that his conduct was that of an intoxicated person.

Karen Roberts testified that she lived at Mobile and had known appellant approximately one year. She said she was with him the night of the alleged robbery, that she first saw him at the Speak Easy Lounge around 11:00 P.M., that appellant’s girl friend, Frances Cox, was also there. She also saw Maddox, whom she did not then know. She said he was drinking at the time. Just a little after 11:00 o’clock she and Frances left. Frances drove the automobile, dropped Karen off at the Red Coach Lounge, and returned in about ten or fifteen minutes with appellant. Karen went to the car and “just a little after eleven” the three left the Red Coach, went to the Jiffy Mart in Ashford and bought some soft drinks. The three rode around for a while and parked on a dirt road. They returned to the Red Coach Lounge “about two or two thirty” in the morning. In other words, according to her testimony, she was with appellant and Frances continuously from about 11:15 or 11:30 until about 2:30 A.M. the same night. On cross-examination, she said that at the time of her testimony she was living with appellant in Mobile.

Frances Cox testified substantially in accord with the testimony of Karen Roberts. There was a slight difference in their testimony as to the time that they first saw appellant that night at the Speak Easy Lounge, which will be referred to hereinafter.

Appellant testified that at the time of the alleged robbery he was working in Houston County, where he lived with his parents. At the time of the trial, in March of 1978, appellant lived in Mobile. He said he was twenty-two years of age, that he had known Glen Maddox about four or five years. He and all other witnesses that said anything about the possible age of Mr. Maddox, referred to him as an old man. The witness said that he left the Speak Easy Lounge, “Somewhere around eleven or maybe eleven fifteen” the night of the alleged robbery. He said Maddox and Dixon had come in together about nine thirty or ten o’clock. He had known Dixon seven or eight years. He said Maddox was flashing money around, and that Maddox was still there about the time appellant left, but appellant did not see him exactly at the time appellant left. He said he then went to the Red Coach Lounge, met Frances, as Frances was apparently coming back from the Red Coach Lounge, and he told her that he would meet “them down at the Red Coach.” His testimony was substantially in accord with that of Frances and Karen as to what happened thereafter, except that, according to him, they last went to the Red Coach Lounge around 3:00.

In insisting that the trial court was in error in overruling defendant’s motion for a new trial, appellant directs attention to a ground thereof that asserts that the verdict of the jury was against the great weight of the evidence. Our duty as to the point is to reverse the action of the trial court if, but only if, we are convinced that the verdict is wrong and unjust. Taylor v. State, 30 Ala.App. 316, 5 So.2d 117 (1942); Coffey v. State, 31 Ala.App. 120, 12 So.2d 863 (1943); Barker v. State, 55 Ala.App. 332, 315 So.2d 129 (1975) cert. denied, 294 Ala. 752, 315 So.2d 130; Smith v. State, Ala.Cr.App., 342 So.2d 422 (1977).

In insisting upon a reversal on the weight of the evidence ground, appellant stresses the evidence, including testimony of defendant, to the effect that he was elsewhere at the time of the alleged crime. Alibi evidence, like all other evidence, has varying degrees of strength, and regardless of the number of witnesses testifying to an alibi, it is rarely conclusive. In weighing alibi evidence generally, many factors are to be taken into consideration, including the usual factors to be taken into consideration in connection with evidence in general, such as natural interest the witness would have as a party and the interest that a witness may have by reason of his or her relationship to a party. That one is a friend of the defendant does not necessarily discount his testimony as to an alibi, but his friendship is to be considered. Both of the witnesses who testified for defendant as to his alibi were his close friends. In addition, we note that there was not complete accord among the witnesses as to the time involved or positiveness as to crucial questions of time. One of the girl friends said that they went to the Speak Easy Lounge at about 11:00; she said, “I guess it was about 11:00.” She said they left there “a little after eleven and went down to the Red Coach.” The other girl friend testified that the two of them went to the Speak Easy Lounge “between ten and ten-thirty, I believe.” When asked how long they stayed at the Speak Easy Lounge before they went to the Red Coach Lounge, she said “It couldn’t have been more than an hour.”

It is to be seen that if one of the witnesses was correct in her statement that they, arrived at the Speak Easy Lounge about 11:00 and the other was correct in her statement to the effect that they may have been there about an hour before going to the Red Coach Lounge (where defendant accompanied them both after one of them had returned to the Speak Easy Lounge to accompany him to the Red Coach Lounge, where the three of them again met), a reasonable conclusion is permissible that they were not with him at 12:00, the time Maddox testified he was beaten and robbed. There is no disagreement as to the time of the crime was committed, if any crime was committed.

The witnesses as to an alibi could as well have been mistaken as to the exact time when defendant was with them after they left the Speak Easy Lounge as Maddox could have been as to his identification of defendant. In so stating, we draw upon what was said by Justice Foster in Davis v. State, 229 Ala. 674, 675, 159 So. 209, 210 (1935), as follows:

“. . . There was substantial evidence of an alibi. But the witnesses so testifying might as well have been mistaken as to the exact day when defendant and his companions were in Birmingham as the State’s witnesses in their identification of them.”

Appellant impliedly asks that we give particular consideration to Hardis v. State, 28 Ala.App. 524, 189 So. 216 (1939). We gladly do so. In Hardis, the court on appeal reversed for the failure of the trial court to grant defendant a new trial. The court on appeal was greatly impressed with the intoxicated condition of the alleged victim of a robbery at the time of the robbery, who, like the victim here, was the only actual witness who testified as to the robbery. The opinion in Hardis does not purport to give a narrative of the testimony of the witnesses. We cannot tell from the opinion whether the guilt or innocence of appellant turned to any extent upon the identification of the appellant in that case as to the criminal, or one of the alleged criminals. It can be readily understood that the circumstances of the particular case of an alleged robbery can become so complicated that the testimony of an intoxicated person would be especially untrustworthy, as to such complicated circumstances, much more so than the testimony of an intoxicated person as to the single, simple, crucial question of the identity of the person who had beaten him so severely that he had to call for help and to the hospital. Especially is this true when, as here, the person so identified was well known and well observed at the time by the victim of the robbery.

We have no reason to believe that the jury was influenced in finding the defendant guilty by anything other than the evidence. We are not convinced that the verdict was wrong or unjust. The trial court was not in error in overruling defendant’s motion for a new trial.

Our review of the record has revealed no error prejudicial to defendant. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, 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. The judgment below is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    David BONNER, Jr., alias v. STATE.
    4 Div. 661.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    John B. Givhan, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted for assault with intent to murder Bruce Leon Milton. A jury convicted him of the charged offense and the court sentenced him to twenty years imprisonment. Notice of appeal was forthwith given.

The record of the evidence states that the offense took place within the City of Flora-la, Alabama, about 9:25 p. m. on the night of December 28, 1976.

Wanda Smith, radio dispatcher for the police department of the City of Florala, received a call from a Mrs. Armstrong about 9:25 p. m. that a shooting incident had occurred at or near her home on North Ninth Street. She immediately called the Dairy Queen and contacted police officers Patrick and Thomas.

Officer Thomas testified, after receiving the dispatcher’s call, he went to the home of Mrs. Armstrong on North Ninth Street and there he found a black male, Bruce Leon Milton, lying on the ground hollering. The victim told him that he had been shot. The witness checked and found a puncture wound on the victim’s back. The witness testified that one other person was there by the name of Timmy Carson. Other law enforcement officers came up. Then the rescue squad also arrived. The Chief of Police, Paul Mitchell, also came. The rescue attendants took the victim to the hospital in Opp, Alabama. Sergeant Patrick went along.

So far as the record reveals, no one was present when the shooting incident occurred. Carson was there when the officers arrived. Apparently there were no witnesses to the shooting. It is to be noted that the victim, Bruce Milton, did not testify. There is some indication in the record that he was in Germany when defendant was tried.

Dr. William Hunsford, a physician, testified that a bullet wound appeared on the victim’s back. He did not testify as to any other wound. He described the nature of the wound. After this examination, the rescue squad took the victim to a Fort Rucker hospital for further treatment. Fort Rucker is a military installation in nearby Coffee and Dale Counties.

Paul Mitchell, the Chief of Police, testified that the defendant was a stepson of Officer Patrick. Chief Mitchell testified that on the night of the shooting incident, supra, he saw defendant at the police station where he, the defendant, had come; that he had a pistol in his pocket with the butt sticking out in plain view; that he forcibly seized the pistol and then defendant reached in his pocket and got some unspent pistol cartridges which he handed to the officer. The officer recognized the pistol as the property of Officer Patrick.

The Chief delivered the pistol and the cartridges to Deputy Sheriff Szpek.

It appears in the record by way of statements of defense counsel and objections that the defendant had previously been tried and acquitted of stealing this pistol from the home of his stepfather, Officer Patrick. But there is nothing in the record to indicate the State attempted to show that the defendant had been tried for the larceny offense. The allusions thereto were by defense counsel.

Deputy Sheriff Szpek was put up as a State’s witness. He testified as to a confession that defendant made and signed by printing his signature thereto. This alleged confession was admitted in evidence after the witness testified in detail as to advising defendant of his right of counsel, etc., and to its voluntariness.

Prior to the admission in evidence of the confession, defendant made a timely objection to such admission on the ground that the corpus delicti had not been proven by competent evidence. This objection was overruled.

This confession referred to several events and incidents that might have motivated the shooting and also some incidents subsequent to the shooting. We quote from the confession as follows:

“ ‘Bruce and Chuck was coming down the road. I heard them talking. I jumped up and I had the gun cocked back and it went off. I heard Bruce holler, I panicked and ran. I was going over to city school to hide. I passed by Paul Mitchell’s house to the four way, took a right and in front of a tree by a house I took out the cartridge I had shot, threw it _n the ground, and put another one in the gun.
“ T went on down a bit further, got on my knees and prayed. I thought if I give myself up I would stand a better chance. Paul was the only one I could trust. I tried to get down town without being seen by the police. I figured they would look for me in the wood area. I went in the police station and Wanda was there. And I asked for Paul and she tried to call him. He wasn’t there. Then she called him on the radio, and he came to the station.’ ”

It also appears in the record that when the Chief went to the police station that night after the shooting, defendant was there.

At the conclusion of the Sheriff’s evidence, the State rested and so did the defendant.

Defense counsel thereupon made a motion to exclude the evidence because the State failed to make out a prima facie case; also, the State failed to show an intent to kill the victim or malice; also, the State failed to prove venue; and lastly, the confession should not have been admitted because the State failed to prove corpus de-licti.

There are other evidentiary details which we have omitted that were properly admitted but unnecessary to delineate in this opinion.

We will consider appellant’s contentions of error seriatim as they appear in counsel’s brief.

I

Appellant says that the court erred in sustaining an objection of the prosecution to defense counsel’s argument that defendant had previously been acquitted of stealing the same pistol he (defendant) was accused of using in the alleged assault.

It appears that during closing argument the State’s counsel stated “He (Bonner) went and got the gun from his stepfather’s house.” Thereupon during closing argument objection was sustained to defense counsel’s argument as follows:

“Now, let’s talk a little bit why David Bonner should be free. Mr. Cook just said David got the pistol. And there has been testimony, although not one person here today on behalf of the State saw David do anything, but Mr. Cook said, in his argument, that David got the pistol. Well, Mr. Szpek testified, after I commented on it several times. But the evidence from the stand was that this fellow, right here, was indicted back several months ago, over a year ago, for stealing that same pistol, grand larceny. Tried it all day long over here in that Courtroom right across the hall there. Twelve jurors, just like you, that had this confession, so called confession, in their hands and went back in the jury room — ”

We are unwilling to charge the court with error in its ruling. The fact that he got the pistol, as the evidence shows, did not constitute larceny.

It is true that defense counsel, on cross-examination, asked the Deputy Szpek a question and elicited an answer as follows:

“Q Now, this statement has some information in it concerning the taking of a pistol, and you have testified about this pistol. You know, don’t you, that earlier the Defendant, David Bonner, sitting right here, was tried for stealing this pistol and was acquitted? You know that?
“A Yes, sir.”

It thus appears that defendant’s counsel injected the accusation of stealing the pistol and acquittal therefor, for what purpose, we do not know. Prior to that he has made known to the court that he was going to object to such issues, as we view the record. The State did not offer any evidence that defendant had stolen the pistol. Defendant’s objection to the evidence, and then his elicitation on cross-examination was very inconsistent. We do not think the evidence, due to the inconsistency, was a proper subject of argument. The complaint here that the court sustained objection of the State to the argument has no merit. At least the ruling of the court was free of injury to defendant. Kennedy v. State, 291 Ala. 62, 277 So.2d 878(6).

II

A second contention is that the court committed error in refusing defendant’s motion for a mistrial on the ground that the prosecution commented on defendant’s failure to testify.

The subject of this contention of error reads:

“MR. COOK: Now, we don’t have anybody that saw him down there in the dark, in the bushes. I mean, all we have is his word that is where he went. If what he told Mr. Szpek is not so, we would like to hear what is so.
“MR. GIVHAN: Judge, we object and move for a mistrial on the grounds he commented on the Defendant not testifying.
“MR. COOK: I didn’t say anything about that.
“THE COURT: I sustain the objection, and I deny the motion for a mistrial. Members of the jury, you are instructed to disregard the last comments made by counsel for the State. I deny the motion for a mistrial.” [Emphasis added]

We are impressed that the comment, supra, of the Deputy District Attorney was a direct reference to the defendant’s failure to take the witness stand.

However, we are also impressed that the harmful effect of the comment accusing defendant was eradicated by the court’s prompt action in sustaining the objection and admonishing the jury to disregard the comments. Tillis v. State, 292 Ala. 521, 296 So. 892.

It also appears that the trial court gave defendant’s written charges as follows:

“There have also been some charges or instructions requested by the Defendant which in the judgment of the Court are correct statements of the law, and I am going to read them to you at this time. Defendant’s requested charge number three. The Court charges the jury that the Defendant has remained silent and has not taken the stand and that under our law it is his constitutional right to remain silent. And that fact must not be considered by you in anyway [sic] whatever. You must not refer to it during your deliberations. Requested charge number four. The Court charges the jury that the failure of the Defendant to testify does not create any presumption against him. Number five. The Court charges the jury that a Defendant in a criminal proceeding need not testify and you are not permitted to draw any inference from his failure to do so.”

The foregoing written charges served to emphasize to the jury the statutory and constitutional rights of defendant to testify or not at his election or option. Constitution of Alabama, 1901, # 6; Code of Alabama 1940, Title 15, Section 305, Code of Alabama 1975, Title 12-21-220. It supplements the trial court’s prior admonishment to the jury not to consider the comments. We will not reverse because of these comments.

III

A third assertion of defendant is that the evidence was insufficient to sustain a conviction for assault with intent to murder.

Defendant’s confession that was admitted in evidence contained an admission that defendant “had the gun cocked and it went off.” Also he said, “I heard Bruce holler, I panicked and ran.” The evidence also showed that “Bruce” was shot in the back with a pistol. These circumstances were sufficient to show that “Bruce” was shot with a pistol in the hands of defendant. It was for the jury to determine or say vel non that the shooting was an accident.

The second element of the alleged offense was also proven. This element was intent or malice. The use of a deadly weapon, at a range capable of producing death, supplies the intent or malice. In this instance the deadly weapon was the pistol in evidence. Allred v. State, 55 Ala.App. 74, 313 So.2d 195(7).

But defendant contends that the confession should not have been admitted in evidence because the corpus delicti has not been proven.

We repeat again that the evidence shows that the victim was shot in the back with a pistol bullet.

Also the shooting took place within a residential section of the City of Florala, Alabama. The evidentiary circumstances surrounding the shooting created an inconclusive but a strong suspect that the victim was the subject of an unlawful assault with a pistol in the hands of some person.

An eminent jurist, the late Justice Som-erville, in Hill v. State, 207 Ala. 444, 93 So. 460, at page 462(5) observed as follows:

“[5] Under the decisions of this court above noted, it must be considered as settled that inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti. Matthews v. State, 55 Ala. 187, 195; Ryan v. State, 100 Ala. 94, 95, 14 South. 868. And this seems to be the general rule. 16 Corpus Juris, § 1514, p. 737.”

It is to be noted that a contrary statement in Harden v. State, 109 Ala. 60, 19 So. 494, was overruled.

This Court in Edgil v. State, 36 Ala.App. 379, 56 So.2d 677(13) observed:

“[13] Because of the state of the record we will not bring ourselves to a definite decision on the question of whether or not the introduction of the confessions would cause a reversal if the omitted grounds had been included. We do call attention to the rule which provides that facts and circumstances tending prima facie to show the corpus delicti may be aided by the confession of the accused, although such facts and circumstances standing alone would not establish the corpus delicti.”

We think that the corpus delicti was adequately established and a jury question as to the guilt of defendant as charged was presented to the jury.

The judgment at nisi prius 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.

HARRIS, P. J., and TYSON, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., concurs in result only.


text:
    Roger Begg TUDHOPE v. STATE.
    5 Div. 425.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.

      James B. Sprayberry, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Lee County returned an indictment against the appellant, Roger Begg Tudhope, charging him with grand larceny. Appellant entered a plea of not guilty. A jury found the-appellant guilty of grand larceny. The trial court duly sentenced the appellant to five years imprisonment in the penitentiary and the appellant appeals to this Court.

The appellant was at all proceedings in the trial court represented by court appointed counsel, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant contends that the trial court erred to his prejudice on the following grounds: First, in overruling appellant’s motion to dismiss his court appointed counsel; second, by overruling appellant’s motion to exclude the state’s evidence.

The record before us shows that the indictment against the appellant was returned on April 13, 1978. Counsel to represent, assist and defend the appellant was appointed on April 26, 1978. On April 28, 1978 the appellant, attended by his counsel, was duly arraigned and entered a plea of not guilty as charged. The trial court set the case to be tried on Friday, May 12, 1978. When the case was called for trial on May 12, 1978, the appellant made known to the court that he would like to say something to the court.

There was a conference in the courtroom out of the presence and hearing of the jury venire, with the appellant, his counsel, the trial judge, and other officials of the court present. The appellant stated to the trial judge that the counsel the court had appointed for him is not able to represent him and that appellant wanted him taken off the case because there was a conflict of interest, and appellant wanted another counsel appointed to represent him. That the conflict of interest was due to the fact that the counsel appointed by the court to represent the appellant has a law partner whose father is kin to the appellant by marriage, and appellant’s wife had filed a divorce suit against him. This request was denied and the case continued for trial until 9:00 o’clock Monday, May 15, 1978 at which time the trial was held.

We find nothing in the record before us tending to indicate that the appellant made known to the trial court before his case was called for trial on May 12, 1978 that he wanted the court to discharge his court appointed counsel. Appellant’s attitude toward the court was most contemptible during the conference. The court was patient, kind, but firm with the appellant during the lengthy colloquy between the court and the appellant. The appellant did not request the court to discharge his attorney and allow the appellant to conduct his defense. The record indicates that the court appointed counsel discharged his professional duties in defending the appellant in a commendable manner. We have examined the entire record in this case and find nothing in it that indicates the appellant was prejudiced by the court refusing to discharge his counsel, and appoint another. The appellant had ample time to discharge his counsel before his case was called for trial.

We hold that the question of removing a court appointed counsel and appointing another counsel for the appellant was a matter within the discretion of the trial court. That considering the conduct of the appellant, the defense of the appellant in the trial court as shown by the record, the trial court did not abuse its discretion in overruling appellant’s request to discharge his court appointed counsel and appoint him another counsel. Hamilton v. State, 270 Ala. 184, 116 So.2d 906; Hayes v. State, Ala.Cr.App., 340 So.2d 1142; Hillyer v. State, Ala.Cr.App., 351 So.2d 646; Matthews v. State, Ala.Cr.App., 361 So.2d 1195.

We now address appellant’s second contention that the trial court erred in overruling his motion to exclude state’s evidence. State’s evidence tended to prove that the appellant was a guest in the home of the injured party; that on February 21, 1978, in the absence of and without the consent of his host, and after being told by his host not to take anything from his home, the appellant took and carried away a jacket belonging to his host of the value of fifty to seventy-five dollars, and about fifty or sixty dollars in coins of the U. S. A.; that on the 22nd day of February, 1978 appellant was arrested on another charge. When he was arrested, he was wearing the jacket belonging to his former host, he had in his possession $7.93 cents in one-cent pieces, six dollars and thirty cents in nickels, $18.10 in ten-cent pieces, and $12.50 in twenty-five-cent pieces, with a total of $44.83. The appellant made a written statement admitting the taking of the jacket and $60.00 which statement, after all proper predicates were laid, was introduced in evidence. In appellant’s statement he also stated that he intended to have the coins counted and wrapped and return a like amount of money to his host and to have the jacket cleaned and returned to his host in return for kindness shown to him by his host. When the state rested its case, appellant moved to exclude state’s evidence, and his motion was overruled by the court.

Larceny is the felonious taking and carrying away of the personal property of another, with the fraudulent intent to convert it to the use of the taker, or to deprive the owner of the property taken. Harvest v. State, Ala.Cr.App., 342 So.2d 1369; Higgs v. State, 113 Ala. 36, 21 So. 353.

We hold that the state’s evidence was sufficient to sustain the jury verdict and that the trial court did not err in overruling appellant’s motion to exclude state’s evidence.

No other rulings of the trial court are argued in appellant’s brief.

As provided by Alabama Code, 1975, Title 12-22-240, we have searched the record for any errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    David S. MANN, alias v. STATE.
    6 Div. 548.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    James G. Stevens, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Defendant, an indigent, was tried under a two count indictment for larceny and for buying, receiving and concealing stolen property, namely, some steel rails used for a narrow gauged railroad. He was convicted as charged in the buying, receiving and concealing count. The court fixed punishment at five years imprisonment.

The only asserted error is that the trial court permitted the jury to separate and go home for the night after the jury had begun deliberations and reported that they were hopelessly deadlocked. The defendant objected to separating after such deliberations had begun. There was no motion for a new trial.

Prior to the beginning of the trial, outside the presence of the jury, a colloquy took place between the court and counsel for the parties. We quote:

“THE COURT: All right, he has had an arraignment and pleads not guilty and we will proceed to draw the jury.
“The jury has not come in, but have you talked to him about keeping the jury together or not?
“MR. STEVENS: Yes, sir, I have.
“THE COURT: And, as I understand, what is his answer to that, that he does not — what is the position of the State about it?
“MR. JONES: The State agrees to separate, Your Honor.
“MR. STEVENS: So does the Defendant, Your Honor.
“THE COURT: And the Defendant understands and agrees for the jury to separate at all times when the Court is in recess including, of course, at night and at mealtimes. He agrees for them to separate?
“MR. JONES: Did he answer, yes or no, he’s shaking his head.
“THE COURT: No, he is nodding his head and you agree to it?
“MR. STEVENS: Yes, sir.”

It seems to us that the parties, including the defendant in person, agreed to such separation “at all times when the Court is in recess.”

This agreement comports with § 12-16-9, Code of Ala.1975, which applies to Jefferson County:

“(a) If the accused and his counsel and also the prosecuting attorney, in any prosecution for felony, whether capital or noncapital, consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.”

This section applies “whether the jury has retired or not.”

We think the court, in permitting the jury to separate, acted within lawful bounds and was free of error in permitting the separation.

There is no assertion of any other error, and we find none.

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: BOOKOUT, Judge.

text:
    Claudia KNOWLES v. STATE.
    6 Div. 581.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.

      Thomas P. Anderson, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: fifteen years imprisonment.

On Sunday, September 12, 1976, at about 2:00 p. m., Charles Williams and Rev. Joe Taylor were engaged in a conversation in front of Williams’ residence. Taylor was seated in his automobile, and Williams was standing by the driver’s side. They had attended church that morning and had just returned from visiting someone in the hospital. As they were talking, Taylor noticed in the rear view mirror that someone was running toward the apartments located next door to Williams’ residence. Taylor asked Williams who that person was, and Williams identified him as the appellant. Williams had rented an apartment to the appellant in the building that appellant was running toward.

A few minutes later, the appellant walked up where Williams and Taylor were talking and grabbed Williams by the neck from behind. The appellant pulled a knife from under his belt, and Williams broke away and ran. Appellant gave chase, caught Williams, and stabbed him in the back breaking the blade of the knife off while it was in Williams. At this point, Taylor grabbed a pistol from under his seat, jumped out of his automobile, and ran over to Williams and appellant. Taylor knocked appellant off Williams and held him at gun point until the police arrived.

The appellant testified at trial that he stabbed Williams with a knife. He testified that Williams and Taylor tried to put a choir robe on him against his will and that he was defending himself against a spiritual movement.

I

Appellant’s first contention is that he did not knowingly and intelligently waive his right against self-incrimination when he took the witness stand and testified in his own defense. Appellant claims that he was unaware that he was waiving his right against self-incrimination and that neither the court nor appellant’s trial counsel adequately advised appellant.

We have reviewed the record and find that appellant’s trial counsel did advise him of his right not to testify. Likewise, the trial court made certain that the appellant knew what he was doing in taking the witness stand.

In Torcía, Wharton’s Criminal Procedure, § 396, (12th ed., 1975), at 37, it is stated:

“Absent an applicable statute providing otherwise, neither the trial judge nor the prosecuting attorney is required to warn a witness or the defendant of his privilege against self-incrimination, except that the trial judge may in his discretion impart such a warning. However, where the defendant is not represented by counsel, the trial judge is ordinarily required to inform him of his right not to take the stand.” (Footnotes omitted.)

We are unaware of any Alabama statute requiring the trial court to warn the defendant of his privilege against self-incrimination.

The appellant chose to testify of his own free will. By voluntarily taking the witness stand and testifying, appellant waived his constitutional shield against self-incrimination. Willingham v. State, 50 Ala.App. 363, 279 So.2d 534 (1973), cert. denied, 291 Ala. 803, 279 So.2d 538; Lipscomb v. State, 32 Ala.App. 623, 29 So.2d 145 (1947); Article I, § 6, Constitution of Alabama 1901; Title 15, § 305, Code of Ala.1940 [now § 12-21-220, Code of Ala.1975].

II

Appellant’s counsel also contends that appellant did not have the mental capacity to knowingly and intelligently waive his right against self-incrimination because he was committed to Bryce State Mental Hospital approximately forty days after the trial.

It is a violation of due process to try an accused while he is incompetent. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Davis v. State, Ala.Cr.App., 354 So.2d 334 (1978). In the present case, appellant was committed to Bryce Hospital after trial pursuant to Title 15, § 428, Code of Ala.1940 [now § 15-16-20, Code of Ala.1975]. As stated in Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974):

“. . .In actuality, § 428 itself is not directed to the competency of the defendant to stand trial, but whether he should be transferred from jail to a state hospital for treatment. Lee v. Alabama, 386 F.2d 97 (5th Cir., 1967). This is a humanitarian consideration which has nothing to do with due process per se. . ”

Appellant testified that in 1976 he was committed to a mental institution in Mississippi by his father for observation. He was released after fourteen days. This is not evidence of present insanity. There was no evidence presented to indicate that appellant was insane at the time of his trial. A plea of not guilty by reason of insanity was never entered, nor was there any request for a competency hearing. The question of appellant’s sanity was not raised at trial. Under Alabama law, every person is presumed to be sane. Title 15, § 422, Code of Ala.1940, (now § 15-16-2, Code of Ala. 1975). Nothing was shown either before or during trial to rebut that presumption.

The standard concerning a defendant’s capacity to stand trial is stated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960):

“. . . [T]he ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ”

That standard was adopted in this state in Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974). In Lee v. Alabama, 406 F.2d 466 (5th Cir., 1969), it was stated:

“. . . [O]ne may be suffering from a mental disease which is at the root of antisocial action and simultaneously have a rational and factual understanding of court proceedings and be able to consult with a lawyer on a reasonably rational basis. . . . ” (Citations omitted.)

From the record it is clear that appellant understood the nature of the proceedings against him. Appellant relied on self-defense, and it is obvious from the questions that appellant’s attorney asked of the witnesses that he had consulted with the appellant.

There is nothing in the record to indicate the reason for appellant’s commitment to Bryce Hospital. The order came approximately forty days after trial. There could have been intervening factors between the trial and the commitment order. We cannot automatically say that one who is found to be mentally unstable approximately forty days after trial was also mentally incompetent during the trial. To do so without some form of evidence would be rank speculation.

III

Appellant next contends (a) that the trial court erred by allowing the prosecution to cross examine appellant about a prior arrest without offering proof of conviction, and (b) that the trial court erred by not instructing the jury that such examination was for the purpose of impeachment only.

On direct examination, appellant’s attorney asked him the following:

“Q. Now, Claudia, you have had some trouble with the police before, haven’t you?
“A. I have had trouble with the police, right.
“Q. Let me ask you this way: Have you ever been convicted of any crime before?
“A. No, I haven’t.
* * * * * *
“Q. Okay. But in other words, you were never convicted of any type of crime in the State of Mississippi?
“A. Oh, yes.
“Q. You were?
“A. I wasn’t convicted. But it was thrown out of court.
* * * * * *
“Q. Do you know what the charge was?
“A. Do I know what the charge was?
“Q. Right.
“A. Yes.
“Q. What was the charge?
“A. They said it was assault and attempt.
“Q. Assault with attempt to murder?
“A. Right.
“Q. Okay. And that case was thrown out?
“A. Thrown out, rigat.
* * * * * *
“Q. In other words, you are saying that what prompted you to be arrested and what prompted you to be confined to the State Mental Hospital in Mississippi was because of your beliefs?
“A. Right. My father tried to make me believe like he believed.”

The appellant was then cross examined by the prosecution:

“Q. When you assaulted that man in Tupelo and they charged you with that crime, was that also because of your religious beliefs?
“A. It was leading towards that way, yes. It wasn’t me—
“Q. As a matter of fact, they released you on probation, didn’t they?
“A. No.
“Q. You deny that?
“A. What?
“Q. You deny that you were convicted on that?
“A. Well, see, my father taken it up.
“Q. Yeah. But you were released on probation and your father got you put in the hospital?
“A. On that, on that assault and attempt?
“Q. Yeah. That assault with intent to murder that person.
“A. Well, see—
“Q. Was that based on your religious beliefs?
“A. —that wasn’t me. The one that I did assault wasn’t a man, it was some boys.
“Q. Uh-huh.
“A. The one that I did assault and attempt to kill, they — at the time they wasn’t men, they was boys.
“Q. In other words, those were younger boys?
“A. Right.
“Q. That was based on your beliefs, also, your religious beliefs?
“A. I guess they didn’t like me because I wasn’t dealing with them. So, they wanted to gang me. And they did gang me.
“Q. And you tried to kill them?
“A. It was the only defense I had.
“Q. And then your father put you in the hospital last year; is that right?
“A. Right. No. See, that didn’t happen at the same time. That was—
“Q. Okay. I see.
“A. —sometimes afterwards.
“Q. Those were at different times?
“A. Right.
“Q. Okay. And you were not convicted of that assault with intent to murder?
“A. No.
“Q. That is what you are telling this Jury here?
“A. Right.
“Q. And you were not placed on probation?
“A. No.
“Q. Okay. And then your father put you in the hospital last year, I believe is that right?
“A. Right.
“Q. And the doctors said that you were not legally insane, didn’t they?
“A. They said that I wasn’t mentally ill. Just that my thinking didn’t go with their thinking.”

It is clear from the record that appellant’s counsel first injected the matter of the prior arrest into evidence. We also note that the appellant did not object to the State’s cross-examination pertaining to the prior arrest. This issue has been answered previously in the case of McClendon v. State, 54 Ala.App. 327, 307 So.2d 723 (1975) wherein it was stated:

“. . . Since there was no objection by the appellant, and the matter had previously been injected into evidence by the appellant’s own attorney, such was a proper basis for cross-examination. No ruling of the trial court being invoked in this connection, no question is here presented for review. . “Moreover, the appellant’s negative answer as to the question pertaining to charges of a serious nature rendered such harmless. Rule 45, Revised Rules of Practice, Supreme Court of Alabama, Title 7, Appendix.” [Now Rule 45, ARAP (1975).] (Citations omitted.)

III

The appellant’s last contention is that it was reversible error for the trial court to fail to include in its charge to the jury the lesser included offense of assault with a weapon. We need not address the merits of his contention.

At the conclusion of the oral charge, both the State and the defense announced that they were satisfied with the charge. After the jury had left the courtroom and had begun deliberations, the appellant’s attorney then excepted.

“It is well settled in Alabama that an exception to the oral charge of the trial judge must be made in the presence of the jury before it retires from the courtroom.” Tuberville v. State, Ala.Cr.App., 348 So.2d 868, cert. denied, Ala., 348 So.2d 870 (1977). This the appellant failed to do, and no error can be charged to the trial court.

AFFIRMED.

All the Judges concur.


text:
    Richard WILLIAMS, alias v. STATE.
    6 Div. 825.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    John A. Bivens, of England & Bivens, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Possession of a pistol by a convicted felon; sentence: five years imprisonment.

Glenda Black testified that on the night of February 16, 1977, she and her family went shopping at Warehouse Groceries. She remained in their automobile with one child while her husband and another child entered the store. A short while later she heard firecracker-like sounds from the store and saw three black males exit the building. Mrs. Black stopped a young male passerby from entering the store, and he knelt for safety beside her car. Mrs. Black then observed appellant cross behind her car, walk up to the young man, point a gun at his head, and demand his wallet. When she looked up at appellant from inside the car, a shot was fired at her through the automobile windshield.

Investigator Allen Fondren of the Tuscaloosa Police Department stated on February 16, 1977, he was driving down Skyland Boulevard in Tuscaloosa, Alabama, when he heard a shot and saw a white male running from Warehouse Groceries flagging him down. He turned into the store parking lot, forcing an approaching speeding vehicle into a drainage ditch. Fondren then got his shotgun and ordered three black males out of the automobile. Fondren testified that the driver of this vehicle was appellant. Two pistols were recovered from the area of the vehicle occupied by appellant. Another pistol was taken from the pocket of one of the other occupants of the car.

Michael Turner, a narcotics agent, testified that he observed the appellant through a window at police headquarters reach into his pocket, remove several bullets, and throw them under a table. Later Turner searched appellant and found two or three more .357 magnum bullets in his pockets.

I

Appellant contends the trial court committed reversible error in admitting into evidence his pretrial statements admitting his prior convictions of certain crimes. Appellant argues such statements were made after he had made known to the police his wish to remain silent and were inadmissible as violative of his privilege against self-incrimination.

The record reveals appellant’s argument in this regard is totally lacking in merit. Agent George Barrows testified that he read the appellant the Miranda warning and asked him if he understood, to which appellant responded affirmatively. He then requested appellant to sign a waiver of rights form, and appellant did so. Agent Barrows asked if he might question him, and appellant told him to “go ahead.” The record reflects the following:

“Q. All right. So, did you ask him questions?
“A. Yes, sir.
“Q. What did you ask him?
“A. At that time, I asked him—
“MR. BIVENS: Your Honor, we object to that.
“THE COURT: Overruled.
“Q. Go ahead and answer that.
“A. I asked him at that time if he was convicted felon.
“Q. And what did he say?
“MR. BIVENS: Your Honor, we’d like to tender an objection to that question, no proper predicate has been laid for an introduction of that testimony.
“THE COURT: All right, I’ll overrule.
“Q. And what did he say?
“A. He said he was.
“Q. All right, did you have any other conversation with him?
“A. Yes, I asked him where he had been convicted.
“Q. And did he say anything to that?
“A. Yes, sir.
“Q. What did he say?
“A. He stated twice in Birmingham, Alabama, and once or twice up north in Ohio.
“Q. All right. Did you ask him anything else?
“A. Yes, sir.
“Q. All right, what did you ask him?
“A. I asked him what was he charged with, what he was convicted of.
“Q. And what, if anything, did he say?
“A. He—
“MR. BIVENS: Your Honor, again we object, been no proper foundation laid for that.
“THE COURT: All right, you’re objecting to the predicate?
“MR. BIVENS: Yes, sir.
“THE COURT: All right, overruled.
“Q. What, if anything did he say?
“A. He said he could only remember one at that time.
“Q. All right. Did you ask him anything further?
“A. Yes, I asked him which one that was.
“Q. All right, and what, if anything, did he say?
“A. He stated burglary in Birmingham, Alabama, 1975.
“Q. Did you have any further conversation with him?
“A. Yes.
“Q. All right. Did you ask him any further questions?
“A. Yes, sir.
“Q. What did you ask him?
“A. At that time I requested, I asked him if I could get a signed statement from him concerning these facts- — well, I asked him about weapons at that time, first.
“Q. All right.
“A. And—
“Q. Thereafter, did you obtain any additional information from the defendant?
“A. Yes, sir.
“Q. In what manner did you obtain that information?
“A. On what we classify as a personal history sheet and fingerprints.
“Q. All right. On the — let me show you an item marked for identification purposes as State’s exhibit three and ask you if you can recognize what that is?
“A. Yes, it’s a personal history sheet we had the defendant fill out in his own handwriting requesting certain information concerning himself.
“Q. And has that sheet been filled out?
“A. Yes, sir.”

The Miranda requirements were fully met, and it is very apparent that appellant did not indicate a desire to remain silent. Rather, he indicated the opposite by his willingness to cooperate in answering questions and completing the personal history form. The record does reveal that appellant refused “to answer any questions about the weapon,” but his actions in total evidenced no desire to exercise his right to remain silent on the other subjects of interrogation set out above. Appellant’s statement was properly received into evidence.

II

Appellant’s last contention is that the trial court erroneously denied his motion to exclude the State’s evidence for failure to show that he was the same person against whom the judgment entry was entered in the prior conviction.

Identity of name raises a prima facie presumption of person. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205 (1973). Appellant introduced no evidence to rebut this presumption of sameness of person. As the record reveals, the State showed with particularity the contents of the prior conviction record including appellant’s name, his representation by counsel, and the fact of his conviction for burglary. Subsequently, the State reopened its case and introduced the judgment entry of appellant’s prior burglary conviction. The appellant’s only objection was to reopening the evidence and not to the correctness of the judgment entry. The trial judge has the discretion to reopen the evidence at any time prior to the close of final arguments. Title 7, § 252, Code of Ala.1940 (now § 15-14-4, Code of Ala.1975).

Additionally, the State presented a fingerprint expert who testified that the prints of appellant in this case were identical to the prints from the Jefferson County Sheriff’s Department records of the man identified as the convicted felon in the prior burglary conviction. Finally, the State introduced appellant’s own freely given out-of-court admission that he had been convicted in Birmingham of burglary. We feel that evidence introduced here, in light of the contents of the documents introduced, the expert testimony, and appellant’s own admission, was sufficient to identify appellant as the man previously convicted and sustain the State’s burden of proof in this case. Hunter v. State, 57 Ala.App. 651, 331 So.2d 406 (1976).

We have reviewed the grounds for reversal relied upon by appellant in light of the record and the briefs and find no error prejudicial to the substantial rights of appellant which would mandate a retrial of this cause.

AFFIRMED.

All the Judges concur.


text:
    George Weakley RHODES v. STATE.
    8 Div. 90.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    William J. Baxley, Atty. Gen. and Samuel J. Clenney, III, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

This appeal concerns pleas of guilty by the appellant in four separate cases (all sentences running concurrently):

(1) robbery (CC-78-115); sentence: thirty-five years imprisonment.
(2) second degree forgery (CC-78-138); sentence: ten years imprisonment.
(3) second degree forgery (CC-78-139); sentence: ten years imprisonment.
(4) robbery (CC-78-181); sentence: thirty-five years imprisonment.

On April 17, 1978, appellant pled guilty to the first robbery case (CC-78-115). He executed an Ireland form [Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971)] detailing all the rights enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In addition to the Ireland form, there was an extensive colloquy between the trial judge, appellant, and appellant’s counsel concerning appellant’s decision to plead guilty. Boykin, supra. We find that appellant voluntarily and intelligently entered a plea of guilty in that robbery case (CC-78-115), and we hereby affirm that conviction.

On the date of sentencing of the first charge, May 3, 1978, appellant pled guilty to both second degree forgery cases (CC-78-138 and CC-78-139) and the other robbery case (CC-78 — 181). Nothing appears in the record to indicate that the appellant had his Boykin rights explained in the latter cases. The record shows no colloquy between the trial court and the appellant concerning the points required by Boykin, supra, neither do we find any Ireland forms in the latter cases. Even the judgment entry fails to show that a Boykin colloquy was held in those cases. See: Bland v. State, 56 Ala.App. 547, 328 So.2d 730 (1975); Starks v. State, 56 Ala.App. 552, 323 So.2d 735 (1975).

For this reason, we are compelled to reverse and remand cases number CC-78-138 (second degree forgery), CC-78-139 (second degree forgery), and CC—78—181 (robbery). Easterling v. State, Ala.Cr.App., 352 So.2d 33 (1977); Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973); Walcott v. State, 288 Ala. 546, 263 So.2d 178 (1972).

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

All the Judges concur.


author: PER CURIAM. ENGLAND, Justice,

text:
    Kenneth Vernon HANDY, Petitioner, v. STATE of Florida DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Allied Insurance Company and Florida Industrial Relations Commission, Respondents.
    No. 50932.
    Supreme Court of Florida.
    March 16, 1978.
    As Corrected June 14, 1978.
    Rehearing Denied Dec. 19, 1978.
    John G. Tomlinson, Jr. of Williams, Tom-linson & duFresne, Coral Gables, for petitioner.
    Summers A. Warden, Coral Gables, for respondents.
   PER CURIAM.

By petition for writ of certiorari, we have for review an order of the Industrial Relations Commission reversing an order of the Judge of Industrial Claims. We grant the writ.

The Industrial Relations Commission erred and departed from the essential requirements of law in concluding that the finding of thé Judge of Industrial Claims awarding nursing services was not supported by competent substantial evidence in the record. See U. S. Casualty Company v. Maryland Casualty Company, 55 So.2d 741 (Fla.1951).

The order of the Industrial Relations Commission is quashed and the cause is remanded with instructions to rule on Point II and Point III of “Appellants’ Point on Appeal.”

It is so ordered.

ADKINS, SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., and BOYD, J., dissent.

ENGLAND, Justice,

dissenting.

To best' understand what the majority has ruled today, it is worth considering what action the Industrial Relations Commission took in this case. The relevant portion of its decision reads:

“We are compelled to reverse the Order on review as to Point 1. The nursing services in question are provided by the claimant’s wife. As we noted in City of Miami v. Brownlow, IRC Order 2-2904 (1-12-76), cert. den. 339 So.2d 1167 (Fla.1976), nursing services by a family member are considered gratuitous in the absence of unusual circumstances. In the instant case the claimant’s wife possessed no special training as a nurse. The services she rendered did not require specialized training. She was not required to forego any remunerative employment to attend to the claimant. Some of the ‘nursing services’ she rendered were related to medical conditions unrelated to the industrial injury in question. Many of the services she rendered were housekeeping in character and would have been rendered regardless of the claimant’s condition. The claimant was capable of ambulating about his house and could attend personal functions without the necessity of assistance. These circumstances clearly distinguish the instant case from Oolite Rock Co. v. Deese, 134 So.2d 241 (Fla.1961), where the presumption of gratuitous services by a family member was overcome in view of the extraordinary services required of the claimant’s wife. In Deese, supra, the claimant, who suffered a loss of brain matter reducing his mentality to that of a. six year old, was unable to take care of even his simplest needs and required constant attendance during all waking hours. We conclude the Judge of Industrial Claims’ findings supporting the award of nursing services are not supported by competent substantial evidence in the record. Accordingly, the Order on review is reversed as to Point 1.”

In sum, the Commissioners’ review of the evidence revealed an absence of competent and substantial evidence to support an award of nursing services for claimant’s wife. A majority of the Court has now reversed the Commission simply because it disagrees with the Commission as to what the record shows.

I had thought that the Court recently resolved to accord to the Industrial Relations Commission the degree of decisional deference which we accord to the district courts of appeal. Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974). Apparently it has not, and we have returned to those early days when the Court thought it necessary to act as a third level fact finder for part-time industrial claims judges and a part-time Commission. This retreat is unfortunate. The adverse effect it will have on claimants, workmen’s compensation practitioners, judges of industrial claims, Commissioners, and the jurisdiction of this Court, is incalculable.


author: SUNDBERG, Justice.

text:
    The Citizens of the STATE of Florida, Petitioners, v. Paula F. HAWKINS et al., Respondents. In re: Petition of HOLIDAY LAKE WATER SYSTEM, INC.
    No. 51772.
    Supreme Court of Florida.
    Nov. 9, 1978.
    Rehearing Denied Dec. 22, 1978.

      Larry Levy, Public Counsel and C. Earl Henderson, Associate Public Counsel, Tallahassee, for petitioners.
    Raymond E. Vesterby, Tallahassee, for the Florida Public Service Commission.
    Stanley M. Danek and R. M. C. Rose of Myers, Kaplan, Levinson & Kenin, Tallahassee, for Holiday Lake Water System, Inc.
    James L. Ade and William A. Van Nort-wick, Jr. of Martin, Ade, Birchfield & Johnson, Jacksonville, for General Waterworks Corporation — Central Florida District, Jacksonville Suburban Utilities Corporation and Southern Utilities Company, amicus curiae.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review a utility rate increase granted respondent Holiday Lake Water System, Inc. by the Florida Public Service Commission. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, and Section 367.131, Florida Statutes (1977). The issue presented is whether the Commission departed from the essential requirements of law in utilizing an accounting method to determine rate base which adds back the accumulated depreciation attributable to contributions in aid of construction (CIAC).

On August 2, 1976, respondent Holiday Lake Water System, Inc. (Holiday) requested authority to increase its rates for sewer service. On September 1, 1976, the Commission entered Order Number 7409 suspending the proposed rate schedules and authorizing an interim increase in annual gross revenues from $106,459 to $189,656. Petitioners, acting through Public Counsel, were granted leave to intervene in the proceedings and filed Exceptions to the Examiner’s Recommendations. On May 2, 1977, the Commission rendered Order Number 7798, granting an increase in rates sufficient to produce gross annual revenues of $219,344.

The process of setting public utility rates involves at least two essential elements: the utility’s rate base and the rate of return. Rate base represents the utility property which provides the services for which rates are charged. The rate of return is a percentage figure which is applied to the rate base in order to establish a reasonable return for the utility’s investors. When these two figures are multiplied the net operating income of the utility results. Operating expenses and income taxes are then added to the net operating income to calculate gross revenue. The actual rates charged the customers are determined in such a way as to allow the utility to collect this gross revenue.

In the instant case, approximately half of Holiday’s capital is attributable to assets purchased with invested or borrowed capital and the other half to contributions in aid of construction. CIAC funds are collected from customers or developers to defray the expense of extending service to such new customers. Thus they represent capital outside of the utility’s debt and equity capital structure. In calculating respondent’s rate of return, the Commission determined the original cost of the utility’s plant and subtracted the amount representing CIAC funds. The Commission also allowed respondent to claim as an operating expense depreciation upon facilities purchased from investment capital and CIAC funds. Neither of these practices is at issue in this case. What is contested by petitioners is the Commission’s further practice of allowing the utility to add back into the computation of rate base a figure which represents that portion of previously deducted depreciation attributable to CIAC property. This is done because, in the Commission’s words: “In order to arrive at an investment rate base, all influence of CIAC must be eliminated. To subtract CIAC and the depreciation on CIAC would amount to a double deduction.” In re: Petition of Holiday Lake System, Inc., Docket Number 760555— S-CR, Order Number 7798, page 7 (Fla. Pub.Ser.Comm., 1977).

Petitioners assert that the Public Service Commission’s accounting practice in determining rate base is inequitable, in that it returns a portion of contributions in aid of construction into the rate base, resulting in a windfall to the utility and unjust rates to its consumers. By allowing a return on property outside of the utility’s capital investment structure the Commission exceeds its jurisdiction under Section 367.081(2), Florida Statutes (1975). Respondents counter by arguing that the Commission’s accounting method eliminates all influence of CIAC in its rate base calculation and accurately reflects the real investment of a utility. Respondents also argue that the instant ratemaking proceeding resulted in just and reasonable utility rates, hence the actual accounting procedures need not be scrutinized under the “end result” doctrine. Westwood Lake, Inc. v. Dade County, 264 So.2d 7 (Fla.1972). For the following reasons, we accept petitioners’ contentions.

It is the Public Service Commission’s policy to include only utility investment in determining rate base. In re: Application of Florida Cities Water Company, Docket Number R-72153-WS, Order Number 5822, page 10 (Fla.Pub.Ser.Comm., 1973). Funds derived from contributions in aid of construction are not included, as they represent property acquired from the utility’s customers and not from its debt and equity capital structure.

The Commission also properly allows the utility to include the accumulated depreciation of the facilities purchased from investment and CIAC funds in the rate base calculation. In this way the utility is provided with the cash necessary to replace the property as it wears out. Therefore, the total dollar amount of investment and CIAC property stays constant over time, as does the rate base. This is as it should be, since the ratepayers are paying for the cost of using up the equipment which provides services.

Section 367.081(2), Florida Statutes (1975), directs the Commission to “fix rates which are just, reasonable, compensatory, and not unjustly discriminatory,” and to provide the utility with a “fair return on the utility’s investment in property used and useful in the public service.” We believe the Commission exceeds its authority under Section 367.081(2) and contravenes its own policy by adding back the accumulated depreciation of CIAC into the rate base calculation. This procedure reintroduces CIAC property into the rate base structure and results in a windfall to the utility, which earns a return on property other than its own, and unfairness to the ratepayers, who must pay higher rates in spite of their contributed capital.

A series of examples will clarify the Commission’s error. Consider a utility with a $1,000,000 plant, with a 40-year life and a 2V2% annual depreciation rate. Assume further that the plant was financed half by investment capital and half by CIAC. Initially, the utility’s rate base will be $500,-000, calculated as follows:

Gross Utility Plant $1,000,000
Less: Accumulated Depreciation -0-
Net Utility Plant $1,000,000
Less: CIAC 500.000
Rate Base $ 500,000

Thus, the rate base equals the amount of debt and equity capital actually invested by the utility.

Now assume the utility is allowed to charge depreciation expense on the entire plant, including that portion funded by CIAC and, in turn, its rates are set by the Commission so as to recover this depreciation expense from the ratepayers. This is the procedure followed by the Florida Public Service Commission and. is not disputed herein. After 20 years the utility’s situation would be as follows:

Gross Utility Plant $1,000,000
Less: Accumulated Depreciation 500.000
Net Utility Plant $ 500,000

It is important to note that because the utility’s rates were designed to recover depredation expense, the utility will have received $500,000 in revenues over the expected life of the plant. If this cash is reinvested in the utility to improve or replace equipment, the value of the gross utility plant will rise and the proper calculation will look like this:

Gross Utility Plant $1,500,000
Less: Accumulated Depreciation 500,000
Net Utility Plant $1,000,000
Less: CIAC 500.000
Rate Base $ 500,000

Because the depreciation expense was reinvested in the utility, the rate base remains constant even though after 20 years the non-CIAC property has been fully used up.

Consider now the proper ratemaking treatment if the utility instead uses the cash to pay off its loans and to return the equity capital originally contributed by the owners. In this situation, after 20 years no invested capital would remain and the rate base would correspondingly go to zero:

Gross Utility Plant $1,000,000
Less: Accumulated Depreciation 500.000
Net Utility Plant $ 500,000
Less: CIAC 500.000
Rate Base $ -0-

The Commission errs in allowing the accumulated depreciation on CIAC to be added into this calculation. Using the above example, if the cash received for depreciation is reinvested in the utility, the Commission’s procedure causes the rate base to increase by $250,000:

Gross Utility Plant $1,500,000
Less: Accumulated Depreciation 500,000
Net Utility Plant $1,000,000
Less: CIAC 500,000
Add: Depreciation on CIAC 250,000
Rate Base $ 750,000

The Commission’s procedure results in the rate base increasing to $750,000 even though there has been no increase in the amount of invested capital. It is noteworthy that the increase in the amount of Gross Utility Plant was not funded by an increase in the amount of invested capital; rather it was due to the reinvestment of the cash provided by the ratepayers through rates set to recover depreciation expense.

Similarly, under the Commission’s approach, if the utility pays off its loans and returns all of the owner’s capital the rate base would amount to $250,000 after 20 years, even though no invested capital remains.

Gross Utility Plant $1,000,000
Less: Accumulated Depreciation 500.000
Net Utility Plant $ 500,000
Less: CIAC 500,000
Add: Depreciation on CIAC 250.000
Rate Base $ 250,000

On page 7 of Order Number 7798, the Commission uses the fact situation above and takes issue with petitioners’ rate base calculation. It contends that after 20 years the utility would have recovered only $250,-000 through depreciation, but its rate base would be zero. The crucial fact that it ignores is that the utility also would have recovered $250,000 from the assets purchased by CIAC. Assuming, as the Commission does, that none of the depreciation expense is reinvested in the utility, after 20 years the actual utility investment would be extinguished and the proper rate base would be zero.

Our decision today in no way conflicts with the ruling in Westwood Lake, Inc. v. Dade County, supra. That case held inter alia that depreciation of contributed property may be considered in rate base if necessary to prevent an unfair rate. This Court reasoned that:

[T]o disregard arbitrarily that part of a utility’s equipment because it was “contributed” and to allow no recognition of its replacement ignores reality; it would only mean a raise in rates later on when it became necessary to replace it. A depreciation loss factor may be proper if necessary to prevent a resulting unfair rate, because its purpose is to save against loss and this must be anticipated.

264 So.2d at 11.

In the instant case the proper accounting method includes a depreciation loss factor on contributed assets in the rate base. The problem giving rise to this dispute, unlike the situation in Westwood Lake, is the reintroduction of CIAC property into the rate base over and above its depreciation value.

Respondents would have us disregard the Commission’s erroneous accounting methods because the procedures used resulted in just and reasonable rates. This “end result” doctrine was adopted in Florida in the case of Jacksonville Gas Corp. v. Florida R. R. & Public Utilities Commission, 50 So.2d 887 (Fla.1951), in which the Court, speaking through Mr. Justice Thomas, said:

It was the commission’s view that it should be “free to follow such method * * * as [it] may choose so long as the end results are rates which are just and reasonable.” ... At first we were disposed to criticize such reasoning because we thought one could not evaluate a conclusion without examining the course followed in reaching it . But upon further study we became convinced that the “end result” is to be weighed in terms of justness and reasonableness, having consideration for all circumstances that in the sphere of finances affect and influence investments of this sort.

50 So.2d at 892 (emphasis in original).

This Court has recognized the limitations of this doctrine and has noted that it

[w]as never intended to justify improper or erroneous methods or factors in the rate-making process. It operates to neutralize such irregularities where they do not appear to be serious enough to produce harmful effects in the final determination of a fair and reasonable return.

City of Miami v. Florida Public Service Commission, 208 So.2d 249, 256-257 (Fla.1968).

We have demonstrated above that the Commission’s accounting procedure results in the inclusion of CIAC property into the rate base contrary to the Commission’s policy and the dictates of Section 367.081(2). Respondents have failed to produce evidence of offsetting factors which would neutralize this practice and the harmful effects that ensue from allowing utilities to earn a return on contributed capital. In the absence of such factors the rates remain unjust and unreasonable and the end result doctrine has no application.

Respondents further contend that the case of Plant City v. Mayo, 337 So.2d 966 (Fla.1976), stands for the proposition that major changes in the Commission’s rate-making policy, such as the one at bar, must be effectuated through a rulemaking or similar proceeding in which all interested parties may be heard. We disagree with respondents’ interpretation. Plant City, while expressing a preference for rulemak-ing proceedings in this situation, states explicitly that there is no statutory or constitutional impediment to changing a traditional ratemaking practice of general statewide effect in an individual rate case, so long as interested and affected parties have a forum in which to challenge any change and the basis on which the action is taken is supported by the record.

On certiorari the duty of this Court is to examine the record to determine whether the Commission’s order is in accord with the essential requirements of law and whether the agency had before it competent substantial evidence to support its findings and conclusions. Florida Retail Federation, Inc. v. Mayo, 331 So.2d 308 (Fla.1976); Shevin v. Yarborough, 274 So.2d 505 (Fla.1973); City of Miami v. Florida Public Service Commission, supra; General Telephone Co. v. Carter, 115 So.2d 554 (Fla.1959). Petitioners’ expert witness, Mr. Ben Johnson, gave convincing testimony explaining why the Commission’s accounting practice was improper and inequitable. Respondents did not cross-examine Mr. Johnson, nor did they offer rebuttal testimony. After a careful review of the record, this Court is unable to find any competent substantial evidence to support the Commission’s finding as to the validity of its accounting procedure. Hence the conclusion is inescapable that the actions taken by the Commission in this case departed from the essential requirements of law.

Accordingly, the writ of certiorari is granted, Order Number 7798 is quashed, and the cause is remanded to the Public Service Commission for proceedings not inconsistent with this opinion.

It is so ordered.

ENGLAND, C. J., and ADKINS and OVERTON, JJ., concur.

BOYD, J., dissents.

      . 337 So.2d at 972, n. 15.

      . 337 So.2d at 975.


author: BOYER, Judge.

text:
    Buford Wallace GILLIAN, Appellant, v. STATE of Florida, Appellee.
    No. FF-59.
    District Court of Appeal of Florida, First District.
    Aug. 18, 1977.
    Rehearing Denied Dec. 20, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant, charged with burglary of a dwelling and convicted and sentenced accordingly, now appeals urging that fundamental error occurred when the prosecutor questioned him in the presence of the jury, without objection, concerning defendant’s failure to give any explanatory statement to the officer at the time of his arrest, citing Bennett v. State, 316 So.2d 41 (Fla.1975) and Shannon v. State, 335 So.2d 5 (Fla.1976). We have carefully considered those cases as did our brethren of the Second District, in a factually similar case, Clark v. State, 336 So.2d 468 (Fla. 2nd DCA 1976). No useful purpose will be accomplished by lengthy quotations from the last mentioned opinion. Suffice to say that we too are of the same view that Bennett v. State and Shannon v. State are distinguishable and not here controlling and that Clark v. State correctly analyzes those and other decisions therein cited. Accordingly, adopting the reasoning of Clark v. State, supra, we affirm.

AFFIRMED.

McCORD, C. J., and RAWLS, J., concur.


author: PER CURIAM.

text:
    Leon Ralph JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 77-562.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1977.
    Rehearing Denied Nov. 27, 1978.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, and Charles M. Johnston, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, the present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1975) requires. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Therefore, we remand the case for correction of sentence, and appellant need not be present at that time.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: MILLS, Judge. BOYER, Acting Chief Judge,

text:
    The COUNTY OF VOLUSIA, a political subdivision, Appellant, v. Charles PASSANTINO, Samuel H. Schwartz and Maraville Estates, Inc., a Florida Corporation, M. W. Kent and Grace C. Kent, Appellees.
    Nos. BB-193, BB-194.
    District Court of Appeal of Florida, First District.
    Sept. 13, 1978.
    Rehearing Denied Dec. 20, 1978.
    John R. Godbee, Jr., Daytona Beach, Harry A. Stewart, Sanford, Warren O. Tiller, De Land, for appellant.
    Michael P. Falkowski III of Hoffman, Hendry, Parker & Smith, Orlando, John R. Tamm, Daytona Beach, M. W. and Grace C. Kent, pro se, for appellees.
   MILLS, Judge.

Volusia County (County) appeals from a final judgment entered in favor of Passan-tino, Schwartz and Maraville Estates, Inc. (Passantino) following a jury trial in an action brought by Passantino to set aside a tax deed given by the County to the Kents. The County also appeals from the final judgment entered in favor of the Kents on the crossclaim the Kents brought against the County seeking money damages for the value of the property conveyed to them by the tax deed in the event the tax deed was set aside. The appeals have been consolidated for our consideration.

Although the parties have raised a number of issues, the issue which is determinative of this appeal is whether the final judgment entered by the trial court on 11 December 1970 in an in rem quiet title action brought by the County against the property involved in this action, as provided by Section 197.650, Florida Statutes (1969), bars this action under the doctrine of res judicata. The County contends the judgment bars this action. Passantino contends the judgment is void because the court lacked jurisdiction to enter it.

The property involved in this litigation is Lots 1 through 16, Block 3, East Highlands, Daytona Beach. It was purchased in the names of Samuel H. Schwartz and Charles Passantino. Lots 5-16 were purchased in 1959. Lots 1-4 were purchased in 1964. In 1964, Passantino and wife conveyed a 25 percent interest in Lots 1-16 to Maraville Estates, Inc. in which they were the principal stockholders. Schwartz and Passantino also owned Lot 14, Block 56, which is adjacent to Lots 1-16. Although not involved in this litigation, Lot 14 is material to the discussion of this case.

Schwartz is a resident of Miami. Passan-tino, an active real estate broker in Florida for 25 years, is a resident of Palm Beach Towers, Palm Beach.

In 1960, Lots 5-16 were assessed on the tax rolls to Samuel A. Schwartz and Charles Passantino, 400 Broadway, Daytona Beach. In 1961, the address was changed to Box 1133, Daytona Beach. In 1962, the address was changed to c/o Anzac of Florida Realty, 205 Worth Avenue, Palm Beach. In 1963, the address was changed to Palm Beach Towers, Palm Beach. In 1965, the property description on the rolls was changed to Lots 1-16 and the name of the parties to whom assessed was changed to Samuel A. Schwartz, et al. From 1965 through 1970, Lots 1 — 16 were assessed to Samuel A. Schwartz, et al., Palm Beach Towers, Palm Beach, Florida. However, in 1966 the rolls reflect the property was subject to tax sale certificate No. 2,800 of 1967. Commencing in 1967 and continuing through 1970, the rolls reflect the property was under a county tax certificate. In 1971 and 1972, the property was assessed to Vol-usia County.

In 1959, Lot 14 was assessed to Samuel A. Schwartz, et al., 321 S. Shore Street, Miami Beach. In 1961, the address was changed to c/o Anzac of Florida Realty, Inc., 205 Worth Avenue, Palm Beach. In 1963, the address was changed to Palm Beach Towers, Palm Beach. In 1966, the name of the parties to whom assessed was changed to Charles Passantino and Samuel A. Schwartz. From 1966 through 1972, the tax rolls reflect Lot 14 was assessed to Charles Passantino and Samuel A. Schwartz, Palm Beach Towers, Palm Beach.

Passantino received and paid tax bills on Lots 5-16 for the years 1960,1961 and 1962. The 1960 tax bill was mailed to Samuel A. Schwartz and Charles Passantino, 400 Broadway, Daytona Beach. The 1961 tax bill was mailed to Samuel A. Schwartz & Charles Passantino, c/o Anzac of Florida Realty, Inc., 205 Worth Avenue, Palm Beach. The 1962 tax bill was mailed to Samuel A. Schwartz and Charles Passanti-no, c/o Anzac of Florida Realty, Inc., Palm Beach Towers, Palm Beach.

The 1963 and 1964 tax notices were mailed to Samuel A. Schwartz and Charles Passantino, Palm Beach Towers, Palm Beach. Passantino denied receiving these notices but contacted the tax collector’s office and timely paid the taxes due. At the time he paid the taxes, he requested the collector to send future tax notices to him at Palm Beach Towers, Palm Beach.

Passantino denied receiving the 1965 tax bill on Lots 1-16 but again contacted the tax collector’s office and timely paid the taxes due. Upon payment of the taxes, Passantino penciled on the tax receipt a request that the records be changed to delete Schwartz, thus, leaving only his name on the rolls. There is no indication in the record that Passantino’s request was acted upon.

In 1964, Passantino received three separate tax notices: one for Lots 5-16, one for Lots 1-4 and one for Lot 14. In 1965, Passantino received two tax notices: one for Lots 1-16 and one for Lot 14.

In 1966, Passantino received only one tax notice and that was for Lot 14. The legal description in this tax notice was more lengthy than the legal description in the 1965 tax notice and Passantino was under the impression that the 1966 tax notice covered Lots 1-16 and Lot 14. He paid the taxes required by the 1966 tax notice. He did not pay the 1966 taxes due on Lots 1-16.

The description set forth in the 1965 tax notice for Lot 14 read:

“Lot 14 Blk 56 Daytona Exc Canal Rwy & Exc Lots 62 63 & 71 to 74 Inc in Blk 3 Resub Cypress Park MB 9 PG 191”

The description set forth in the 1966 tax notice for Lot 14 read:

“Lot 14 Blk 56 Daytona Exc Canal Rtwy & Exc Lots 32 to 35 Inc Blk 1 Resub Cypress Park MB 9 PG 191 & Inc vacated Lime St Exc S 20 Ft of E 180 Ft & Inc vacated Jones St. & Exc Lots 62 63 & 71 to 74 Inc in Blk 3 Resub Cypress Park Mb Pg 191”

In the tax sale of the county in 1967, the 1966 taxes on Lots 1 — 16 were delinquent and because there were no private bidders at the tax sale to bid on the property, it was stricken off to the County. The property became the subject of an in rem quiet title suit filed by the County on 10 November 1969. The Clerk forwarded a registered letter addressed to “Mr. Samuel A. Schwartz, et al., Palm Beach Towers, Palm Beach, Florida” which contained a newspaper copy of the notice of sale, and a slip warning “property in which you are interested is listed in copy of the enclosed notice”. The letter was returned unopened with the address stricken over and a printed stamp stating “not at Palm Beach Towers”. A default was entered against Lots 1 — 16 and subsequently on 11 December 1970 a final judgment quieting title in the County was entered by the court.

On 13 December 1971, Passantino sent a letter with his 1971 tax notice to the tax collector. He enclosed a map of the property which he believed he still owned and asked the collector’s office to outline the area included in his 1971 tax notice. The tax assessor’s office complied with Passanti-no’s request and outlined in red the property included in the legal description of the 1971 tax notice received by Passantino. It erroneously included Lots 1 — 16, the property which was vested in the County by the in rem quiet title judgment of December 1970.

On 21 July 1972, the Kents purchased Lots 1-16 from the County for the sum of $13,665. The money received from the sale was distributed by the Clerk pursuant to state statutes to the municipality and various taxing agencies.

Passantino argues that the errors by the tax collector and the tax assessor which caused the tax delinquency to take place also caused Passantino not to receive the notice of the in rem quiet title suit, thus, the trial court lacked jurisdiction to enter the judgment. He also argues that his belief that he paid the 1966 taxes amounted to payment of the taxes before the sale.

The County argues that this case is controlled by Sections 197.011, 197.650(2), 197.-675 and 197.680, Florida Statutes (1969), and Mullin v. County of Polk, 76 So.2d 282 (Fla.1954). We agree and reverse.

Owners of property are held to know that taxes are due and payable thereon annually and are charged with the duty of ascertaining the amount of such tax and paying the same before April 1 of the year following the year in which such taxes are assessed. Section 197.011.

Section 197.650 provides that after the Board of County Commissioners receives a list of lands covered by certificates which have neither been redeemed nor purchased and have therefore been retained by the county, the Board shall file a complaint listing the lands described as parties defendant. It is not necessary to name as a defendant any person owning or having any interest in or liens upon the lands. Jurisdiction of the land in question and of all interested parties is obtained by means of publication of notice in accordance with Section 197.650(2). Under Section 197.675, the clerk is required to mail a copy of the portion of the newspaper containing the published notice to the owner of the property if the owner and his address appear on the tax roll. The failure of the owner to receive the notice does not affect the validity of this requirement.

Upon entry of the decree, all rights and interests in the property shall be cut off and title to such land when conveyed by the County shall be considered as new original title. Section 197.680.

The intent of Section 197.650 and the related statutes is to clear title to foreclosed lands to make it saleable. If the statutes are complied with, title is quieted in the County and in subsequent purchasers. In this case each and every statutory prerequisite was satisfied during the in rem foreclosure proceedings. Passantino admits this in his brief.

In Mullin v. County of Polk, Mullin filed suit to set aside the decree quieting title to his tax delinquent property and the subsequent deed from the county to purchasers from the county. Notice of the quiet title suit was sent by the clerk to the address of the person last paying taxes on the property as shown by the tax collector’s receipt book. The address shown in the receipt book was incorrect and the owner, Mullin, did not receive it. Not only was the address incorrect but Mullin’s name was misspelled. Mullin’s correct name and address was George E. Mullin, Brookville, Indiana, whereas the receipt incorrectly showed his name and address as Geo E. Mullins, c/o City Hall, Brooks ville, Florida.

Our Supreme Court held that the clerk did not have to determine the correctness of the name and address but merely had to comply with the statute and mail the notice to the name and address of the person last paying the taxes as shown on the tax collector’s receipt book where the owner’s name did not appear on the tax rolls. The court pointed out that every taxpayer knows that he must pay his real property taxes yearly. It concluded that the tax collector’s mistake did not deprive Mullin of due process in the in rem proceeding and the court had jurisdiction to enter the decree quieting title to the tax delinquent property.

Although the facts are not the same, the facts in the Mullin case and this case are sufficiently similar that we must conclude that the Mullin case controls the decision in this case. The court had jurisdiction of the in rem quiet title action and the judgment entered by it is res judicata in this case.

Passantino argues with persuasion and logic that errors by the tax collector and the tax assessor caused him not to receive the 1966 tax notice on Lots 1—16 and that these same errors caused him not to receive notice of the in rem quiet title action against the Lots. These errors were caused by the failure of the collector and assessor to delete Schwartz’ name from the tax roll and to substitute his, although he requested this change several times.

However appealing this argument may be, we are bound to follow the statutory and substantive law of our State. This we will do. We again point out that this case is governed by Sections 197.011, 197.650(2), 197.675 and 197.680, and Mullin v. County of Polk.

Passantino’s argument that he believed he was paying taxes on Lots 1-16 when paying taxes on Lot 14 is without merit. The description in the 1966 tax notice was clearly that of Lot 14 and did not include Lots 1-16. This would readily appear to any layman, let alone a real estate broker of twenty-five years. When coupled with a tax that was lower than the 1965 tax on Lot 14, it is quite clear that the description did not include Lots 1-16. Whatever Passantino’s belief, he did not pay the 1966 taxes on Lots 1-16 and this is the only defense he raised from those permitted by Section 197.011.

The trial court erred in denying at the conclusion of all the evidence the County’s motion for a directed verdict made on the ground that the in rem quiet title action judgment was res judicata.

We reverse and remand with instructions to vacate the judgments appealed and to enter judgments in favor of Volusia County-

BOYER, Acting C. J., and JOPLING, WALLACE M., Associate Judge, specially concur.

BOYER, Acting Chief Judge,

specially concurring.

Justice is not here accomplished. Were we allowed to challenge or change the law I would dissent. However, the statutory law and case law cited by Judge Mills is clear. No provision is made for a citizen to rely upon erroneous statements nor actions of the government nor its functionaries. Reluctantly, I have no alternative but to concur.