text:
    Robert Thomas DIXON v. STATE.
    6 Div. 367.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied March 21, 1978.

      Edward L. Ramsey, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment charged Robert Thomas Dixon with the robbery of Tucker Smith by feloniously taking some $75.00 from his person and against his will by putting him in fear, etc. The jury found the appellant “guilty of robbery as charged” and fixed punishment at ten years imprisonment. The trial court set sentence accordingly and overruled the appellant’s motion for new trial, which challenged the weight and sufficiency of the evidence.

Tucker Smith testified that on March 26, 1976, he was employed at Banjo Grocery on Lomb Avenue in the southwest section of the City of Birmingham. Shortly after 8:00 o’clock that morning, about seven or eight customers were in the store. A young black male approached the cashier’s counter with two bottles of Chámpale. As Mr. Smith attempted to ring up the sale, the robber, whom he positively identified in court as being the appellant, pointed a sawed-off shotgun at him and demanded the proceeds from the cash register. Mr. Smith stated that he placed $75.00 in United States currency in a paper bag and laid it on the counter. Mr. Smith and the customers inside the store were then directed to lie down on the floor. The robber then backed out of the store with his weapon in his hand. Mr. Smith described the shotgun as being either a twelve or sixteen gauge, sawed-off, the barrel only six to eight inches long, and the “whole thing about fifteen to twenty inches long” (R. p. 41).

Mr. Smith revealed that when the bills are pulled from the cash register in a certain manner an alarm goes off at Police Headquarters, and in minutes Birmingham police officers arrived at the scene. Smith gave a description of the appellant as being a black male, clean shaven, between five feet eight inches and five feet ten inches tall, and weighing approximately 165 to 170 pounds. Mr. Smith stated that he pointed out to the officers the two beer bottles which the appellant had brought to the counter.

Mr. Smith stated that on the same day of the robbery he had pointed out the appellant from some photographs shown to him by Police Sergeant Carreker. Mr. Smith testified that he attended a lineup on either April 13 or 14,1976, but his pretrial identification was from photographs.

B.A. Lorina stated that he sold beer for Supreme Beverage in Birmingham on March 26, 1976. He stated that shortly after 8:00 on the morning in question he and his helper were placing beer inside Banjo Grocery at 1600 Lomb Avenue. He indicated that they were in the back of the store when they heard someone say, “Come here,” and as he turned he saw a sawed-off shotgun being held by a black male. The robber directed Mr. Lorina to place his money in a paper bag, then lie down on the floor next to Mr. Tucker Smith. Mr. Lorina stated that he and his helper did so, but he was unable to identify the robber.

Manuel Ezell testified that he was in Banjo Grocery shortly after 8:00 o’clock in the morning on March 26, 1976. He stated that a black male came in with a sawed-off shotgun. He stated that the gun was eighteen to twenty inches long, and it was possibly a twelve gauge shotgun. He stated that the robber told him to lie on the floor, but did not take any money from him. Ezell said the robber was clean shaven, and he later saw Dixon, the appellant, during the first part of May, 1976. He said he thought he had a mustache at that time. He could not make a positive identification.

Booker T. Jones, a self-employed brick layer, indicated that on March 26, 1976, at approximately 8:00 o’clock in the morning, he was inside Banjo Grocery on Lomb Avenue in Birmingham. He stated he saw three men in the front of the store and three men in the back. He stated he picked up some items and walked up to the cashier’s counter. He testified that a man standing there told the cashier to “Give me what you’ve got.” Mr. Jones stated the robber had a sawed-off shotgun in his hand and pointed it at the “beer man” and told him to lie down on the floor. Jones stated that he hid his pocketbook before being directed to lie down on the floor. He remained there until the robber left.

Mr. Jones stated that the robber was a young, tall, clean shaven black male. He could not identify the robber.

Richard E. Royal, a Birmingham police officer, testified that he answered a call, shortly after 8:00 a. m., on March 26, 1976, at Banjo Grocery, located at 1600 Lomb Avenue in the southwest section of Birmingham. He stated that he talked with persons inside the store, then called for an evidence technician, Officer Wyatt.

Birmingham Police Officer Charles R. Wyatt testified that he went to Banjo Grocery, located on Lomb Avenue, on March 26, 1976, arriving there at 8:29 a. m. He stated that Officers Royal and Spears were at the scene when he arrived. Mr. Wyatt endeavored to raise fingerprints from a six-pack carton of beer and from the counter on which the carton was situated. He stated he was unable to get any reliable prints.

Birmingham Pólice Detective Tillman Carreker testified that he investigated the robbery of Mr. Tucker Smith at Banjo Grocery on March 26, 1976. He stated he received a description of the robber from Mr. Smith about 9:30 that morning. Officer Carreker indicated that he arrested the appellant, Robert Thomas Dixon, on April 14, 1976. Carreker stated that he carried some photographs, two different groups, to Mr. Smith that afternoon and then again the next day. He stated that a photograph of the appellant, which he had obtained from Sergeant McKinsey of the Homewood Police Department, was included in the groups displayed to Tucker Smith. He stated that Smith made a positive identification of Robert Thomas Dixon from the photographs.

Officer Carreker also stated that he took the appellant to Police Headquarters on April 14, 1976, where he was placed in a lineup, and at this time Smith did not identify the appellant. Officer Carreker indicated that only Sergeant B. P. Thornton assisted him with the lineup, that no suggestions were made to anyone during the lineup, nor were they called upon to make a statement. Carreker indicated that he received the following description of the robber from Tucker Smith (R. p. 35):

“A. Black male, nineteen to twenty, 5' 8", 150 lbs., medium afro, medium complexion, clean shaven, light tan leisure suit with a peach design on it and armed with a sawed-off shotgun.
“Q. Did he say anything about the suspect having a moustache?
“A. No, sir.”

The appellant, Robert Thomas Dixon, took the stand on voir dire to indicate that in April, 1976, he was living on Eighth Avenue, West, with his mother, Jacqueline Cogman, and his stepfather. He related that on April 14, 1976, Birmingham Police Detective Carreker came to his home and told him he wanted him to go to Police Headquarters for a lineup. He stated that something was mentioned about handcuffs, but he stated he would go voluntarily. He testified that another officer accompanied Officer Carreker and they spent about fifteen to twenty minutes searching his home.

Dixon stated that about eight other persons were in the lineup at Police Headquarters, all of whom were black males. Dixon indicated that some were shorter and some taller than he, and that during the lineup he observed three people talking and pointing in his direction. He was asked to say the words, “Give me your money or your life.” He stated that he could not determine if the officers were pointing at him.

On cross-examination Dixon admitted that he had an uncle named Randy Foster who was in jail in connection with a robbery in Homewood. He stated that he had been with his uncle and was also arrested in Homewood, that he was on leave from the Army at the time of this occurrence. He stated that several photographs were made of him by Homewood police officers. Dixon indicated later that he thought Detective Carreker was present when he was placed in a lineup.

The trial court ruled that the in-court identification of the appellant by Tucker Smith was not “tainted” by pretrial identification, procedures, and further overruled the appellant’s motion to exclude, at the conclusion of the State’s case, which challenged the lineup and the State’s evidence.

Michael Barber testified that he was at Banjo Grocery on Lomb Avenue on March 26,1976, shortly after 8:00 a. m. He stated that a black male came in with a sawed-off shotgun, pointed it at the owner, and made the customers in the store lie on the floor, then left. He described the robber as “a guy about 6 feet, brown leisure, it wasn’t exactly brown leisure suit, light brown, something like it, straight hair, hair combed down, brown skin.” He stated the robber was not Robert Thomas Dixon and that he had never see Dixon before.

On cross-examination Barber stated he worked at Midfield Volkswagen and had been interviewed by Detective Carreker in the office the previous day (August 24, 1976). Mr. Barber stated that Carreker showed him six or seven photographs, and he told Carreker that he could not say who the robber was, but he had gone to the store to “buy some milk.” He stated that he recalled the “beer man” being inside the store, and that the robber had directed all of them to lie down on the floor. He stated that .he had $5.00 on his person, but the robber told him he did not need his money and did not take it.

Upon being shown photographs, Barber indicated they were the “same ones” shown to him the previous day by Detective Car-reker. Barber indicated the appellant’s picture was in the group of the photographs, but his hair looked different. He stated he “did not believe it was the same man.”

Donald Dortch testified that he was in Banjo Grocery on the early morning of March 26, 1976. Dortch indicated that seven or eight people were in the store when a black male entered with a sawed-off shotgun, but that the person who came into the store was “not Dixon.” Dortch indicated that he “used to be a neighbor” of Dixon’s, but the robber’s hair was combed different from Dixon’s. Dortch indicated the robber carried a sawed-off shotgun, twelve or sixteen gauge, and the barrel was not over ten inches long. He stated the robber was light skinned and clean shaven. He testified that he had been made to lie on the floor with the others when the robber fled.

Wilson Cogman, Jr., testified that he was the stepfather of Robert Thomas Dixon and resided at Apartment F, Eighth Avenue, West, in the City of Birmingham. He stated that on March 26, 1976, he did not leave for work until about 8:30 that morning, and that at this time his stepson was at home in his bed. Cogman indicated he was employed by Pilgrim Health and Life Insurance Company as debit manager and collected on the sale of policies. Cogman indicated that on the date in question, the appellant’s mother and sister were also at home. He testified that he was not present on April 14, 1976, when his stepson was arrested and taken to Police Headquarters.

Robert Thomas Dixon testified that on March 26, 1976, he lived on Eighth Avenue, West, with his mother and stepfather, Mr. Cogman. He stated he was twenty-two years of age and “had never robbed anyone,” that he had not been to the Banjo Grocery. Dixon stated he was five feet, ten inches tall and weighed about 140 pounds. Dixon stated he was arrested in mid-April by Detective Carreker. He stated that Donald Dortch was a friend of his, and that he had known him most of his life.

The defense then rested, and Detective Carreker was recalled.

Carreker indicated that when he showed the photographs to Michael Barber at Midfield Volkswagen, Barber stated, “The photograph of Dixon looks like the man, but I am not sure.”

Robert Thomas Dixon was then recalled to the stand and stated that when he talked about seeing his friend, Donald Dortch, he meant that it was in May, 1975, because he was “locked up this year.”

Donald Dortch was then recalled and stated that he saw the defendant, Dixon, come by his shop in May, 1976, and talked with him.

The evidence then being completed by both sides, the cause was recessed until the following day for argument and the charge to the jury.

I

The appellant asserts that the State failed to prove a prima facie case and that the pretrial identification of the appellant was “tainted” by the identification procedure employed.

We do not agree.

This Court, through Judge Harwood, in Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied 250 Ala. 421, 34 So.2d 859; and through Judge Harris, in Tarver v. State, 53 Ala.App. 661, 303 So.2d 161, fully set forth the essential elements of the offense of robbery. We are of the opinion that these requirements were amply met.

Moreover, this Court has carefully considered the totality of the circumstances, as required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and determined that the exhibition to Mr. Tucker Smith of the photographs the day of the robbery and the following day was not so suggestive as to make his in-court identification of the appellant subject to be stricken.

Mr. Smith had ample opportunity to observe the appellant in a well-lighted store, moving about at the time of the robbery. His testimony at trial indicates this was the basis of his identification, and that he did select the appellant from photographs shown to him by Detective Carreker. Mr. Smith also indicated he did not identify anyone at a lineup as such.

We are of the opinion that the appellant’s rights were adequately here safeguarded. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601; Henry v. State, Ala.Cr.App., 355 So.2d 411; and. Lomax v. State, Ala.Cr.App., 355 So.2d 755.

II

The appellant earnestly contends that his motion for a mistrial was due to be granted, as well as his motion for a new trial, each of which raised the question of appellant’s attempted suicide, which took place outside the presence and hearing of the jury and of the court on the evening of August 25, 1976, after the evidence was completed. Because of the unique nature of this contention, we set forth verbatim the proceeding in the trial court in connection with this contention of error (R. pp. 105-116):

“THE COURT: All right, Ladies and Gentlemen, I’ll let you beat the traffic. We will be in recess until 9:00 in the morning.
“(Thereupon, proceedings were in recess from 4:25 P.M. on August 25th, 1976 to August 26 at 1:45 P.M., when, out of the presence and hearing of the jury, the following proceedings were had and done:)
“August 26, 1976 1:45 P.M.
“THE COURT: For the record, the Court is appointing Hon. Mike McCormick as co-counsel for the completion of this trial.
“Mr. McCormick will be at the hospital room at the Cooper Green Hospital in Birmingham, Jefferson County, Alabama, representing the defendant and with the defendant. Hon. Walter Blocker will represent the State of Alabama, being a deputy district attorney. For the record, Mr. Ramsey has a motion to make.
“MR. RAMSEY: Your Honor, at this time I would like to move for a mistrial of this case based on the fact, it is my understanding that the defendant, at the present time, is in the Cooper Green Hospital as a result of an apparent attempted suicide. I think that raises, first of all, a question of his competency and mental stability. I think there needs to be an examination of him as to that matter. Second, I think proceeding as we are at this time would deprive him of his constitutional right to be present at all stages of the trial. I don’t think he is able — is, in fact, a waiver of his rights to be present and I don’t think the setup as we have it now would constitute the same as his being present, that is some type of telephonic communications between the Court and the hospital. It is my understanding there are tubes in his throat and he would not be able to communicate with counsel even being present there at the hospital. I think this, in itself would mean that he is not effectively present for the purposes of any further proceeding in this case. For these reasons, I would move for a mistrial at this time.
“THE COURT: Do you wish to be heard, Mr. Johnson?
“MR. JOHNSON: Yes, sir, we would point out that the defendant has absented himself of his own volition to; by attempting to stop this proceeding. I think the Court has made and I’m sure his Honor will go into this. The Court has made every precaution, is setting up this telephonic communication and appointing an assistant of Mr. Ramsey to be present with him. We would ask that the trial proceed.
“THE COURT: Anything further?
“MR. RAMSEY: No, sir.
“THE COURT: For the record, the Court was recessed on Wednesday, August 25, 1976, until Thursday, August 26, 1976, at 9:00. At approximately 8:30 A. M., August 26, 1976, the Court was informed that on the previous evening the defendant, who had presented all his evidence and testified in his own behalf, had swallowed a razor blade; that the defendant was taken to Cooper Green Hospital in Birmingham, Jefferson County, Alabama, and was subsequently operated on for removal of the razor blade. The Court, personally contacted Dr. Swatsdruber, who is the attending physician for the defendant at said hospital. That Dr. Swatsdruber did inform the Court that the Defendant’s condition is good, that in the afternoon of August 26, 1976, they intend to have him up and walking around; that the defendant does have a tube in his nostril and into his stomach as part of his post-operative care. That he also has tubes into his veins, being treated intravenously. The doctor further informed the Court that it was possible for the defendant to be placed on a stretcher and sent over to the Court for a period of approximately two hours. The doctor further informed the Court as late as 1:20 P. M. on August 26, ’76, that the defendant is not under any medication, that he fully understands and is competent to understand the continuation of these proceedings. The Court feels that in the interest of justice that the proceedings should continue and the Court has instructed and has had electronic equipment installed in the courtroom and in the hospital room of the defendant. The Court has appointed the Hon. Mike McCormick as co-counsel in this cause and has sent Mr. McCormick in the presence of Deputy District Attorney Walter Blocker to represent the State and Mr. Brad Morris, who is an investigator from the District Attorney’s office to operate the equipment at the hospital room, to be present at the continuation and conclusion of the proceedings. The Court is well aware that this is a matter of first impression in this jurisdiction and I feel that it is safe to say probably in any jurisdiction in the United States. To the knowledge of this Court, there is no case similar to the situation the Court has before it. The Court is aware of the cases, especially those decided by the Alabama Court of Criminal Appeals in excluding a ruly — or unruly disruptive defendant from the courtroom as shown by Keeby v. State. However, that is not the situation presented to this Court. The Court feels that due to the fact the defendant inflicted the wound upon himself in an apparent attempt to bring these proceedings to a mistrial, in order that this matter would not then be submitted to the jury, who has heard all the testimony and evidence. Both District Attorney Pete Johnson and Attorney Ed Ramsey have informed the Court that when the jury is brought into the courtroom, they both intend to rest; that no further evidence will be introduced, which leaves the trial in such a posture that we will have summation by the District Attorney and by the Defense Attorney and the charge of the Court to the jury. The Court feels that no constitutional right of the defendant is or has been violated or will be violated by proceeding in this manner. The Court overrules the motion for a mistrial.
“MR. RAMSEY: We respectfully except, Your Honor.
“THE COURT: Note an exception.
“(Thereupon, proceedings were in abeyance from 2:00 P. M. until 2:15 P.M., at which time out of the presence and hearing of the jury, the following proceedings were had and done:)
“THE COURT: For the record, the defendant Robert Thomas Dixon is in the hospital room at Cooper Green Hospital, Birmingham, Jefferson County, Alabama, in the presence of his now appointed co-counsel, Mr. Mike McCormick, Deputy District Attorney Walter Blocker, Mr. Brad Morris, who is an investigator for the district attorney’s office, a sheriff’s deputy and Mrs. Morris Womack. Mrs. Womack being an attending nurse. Mrs. Womack?
“MRS. WOMACK: Yes, sir.
“THE COURT: At this time, is the defendant conscious?
“MRS. WOMACK: Yes, he is.
“Q. Is he under any medication?
“MRS. WOMACK: Not at this time.
“THE COURT: Does he seem to be alert?
“MRS. WOMACK: Yes sir.
“THE COURT: In your opinion, does he understand the proceedings that are going on at this time?
“MRS. WOMACK: Yes, sir, he does.
“THE COURT: And he can hear?
“MRS. WOMACK: Yes, sir.
“THE COURT: Thank you, ma’am. Mike?
“MR. McCORMICK: Yes, sir.
“THE COURT: All right, I’m getting in a position to bring the jury in and we will then have the State and the defense officially rest in the presence of the jury and then commence summation.
“MR. McCORMICK: All right, sir.
“THE COURT: Are you ready?
“MR. McCORMICK: Yes, sir, we are ready.
“THE COURT: Is Mr. Blocker ready?
“MR. BLOCKER: Yes, sir.
“MR. RAMSEY: Judge, would you ask him if he communicated with the client or he can’t communicate with the defendant?
“THE COURT: Mr. McCormick, can you communicate with the defendant?
“MR. McCORMICK: Yes, sir.
“THE COURT: Have you communicated with him?
“MR. McCORMICK: Yes, sir, I have.
“THE COURT: Does he, in your opinion, at this point understand the proceedings?
“MR. McCORMICK: Yes, sir.
“THE COURT: Are you, Gentlemen, ready?
“MR. JOHNSON: Yes, sir.
“MR. RAMSEY: Yes, sir.
“THE COURT: All right, bring the jury in. “(Thereupon, the' jury returned to the courtroom at 2:30 P. M., and the following proceedings were had and done:)
“THE COURT: For the record, anything further for the State?
“MR. JOHNSON: The State rests, Your Honor.
“THE COURT: Anything further for the defense?
“MR. RAMSEY: The defense rests.
“THE COURT: Are you Gentlemen ready to sum up?
“MR. JOHNSON: Yes, sir.
“MR. RAMSEY: Yes, sir.
“THE COURT: Before your summation, now, Ladies and Gentlemen, if you will notice the defendant, Robert Thomas Dixon, is not present in the courtroom. Would that fact that he is not present prejudice any one of you or all of you in any manner whatsoever, either for or against the defendant? Mr. Wainwright?
“MR. WAINWRIGHT: No.
“THE COURT: It would?
“MR. WAINWRIGHT: It would not.
“THE COURT: Mrs. Williamson?
“MRS. WILLIAMSON: No.
“THE COURT: Mr. Page?
“MR. PAGE: No.
“THE COURT: Mr. Green?
“MR. GREEN: No.
“THE COURT: Mr. Letson?
“MR. LETSON: No.
“THE COURT: Mr. Willingham?
“MR. WILLINGHAM: No.
“THE COURT: Mr. McGuier?
“MR. McGUIER: No, sir.
“THE COURT: Mr. Bates?
“MR. BATES: No.
“THE COURT: Mr. Sparks?
“MR. SPARKS: No, sir.
“THE COURT: Mrs. Christy?
“MRS. CHRISTY: No.
“THE COURT: Mr. Youngblood?
“MR. YOUNGBLOOD: No.
“THE COURT: Mrs. High?
“MRS. HIGH: No.
“THE COURT: Mr. Cantor?
“MR. CANTOR: No.
“THE COURT: Then you can proceed with this matter and render a fair and impartial decision? I presume by your silence that you can, is that correct, if that is not correct, please, someone raise their hand. Let the record show that no one raised their hand.
“MR. McCORMICK: Judge?
“THE COURT: Yes, sir.
“MR. McCORMICK: You are fading out on this end, sir.
“THE COURT: I didn’t hear you.
“MR. McCORMICK: You are fading out on this end.
“THE COURT: I had set my mike down, I’m sorry. Did you hear what I said?
“MR. McCORMICK: Yes, I heard most of it. There are some parts I did not hear.
“THE COURT: For the record, I’ll sum it up. The Court polled the jury, advised the jury that the defendant is absent from the courtroom. The jurors in being polled, informed the Court that that fact would not prejudice the jury in any manner, either for or against the defendant and that the jurors can still render a fair and impartial decision in this case. Do you hear that, Mr. McCormick?
“MR. McCORMICK: Yes, sir, we heard it fine.
“THE COURT: Are you gentlemen ready?
“MR. JOHNSON: Yes, sir.
“THE COURT: All right, Mr. Johnson, you may commence your summation.”

Appellant asserts that the trial court was in error in resuming the trial proceedings without conducting a further or separate hearing into the appellant’s “competency to stand trial” and cites us to Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; and Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489.

Our careful research in this case reveals that the issue here presented is sui generis. Must a trial court grant a mistrial or a new trial where, as here, all the evidence had been completed and there had been no prior indication whatsoever to the trial court of any problem concerning the appellant’s mental competency to stand trial prior to his suicide attempt following the close of the evidence, but before closing argument and the charge by the trial court? Had this attempted suicide occurred at some other or prior point in the proceeding, perhaps a different result might obtain. We are not, however, called upon here to speculate on what our future holding in such a situation might be.

Suffice it to say that here the trial judge conferred with the attending physician and determined that the appellant was competent and had his mental faculties, and in fact he could have been brought to court on the afternoon of .August 26, 1976, for the completion of the proceeding had that been deemed to be desirable. The trial judge, after conferring with Dr. Swatsdruber, determined that it would be best to have a nurse, Mrs. Morris Womack, and two attorneys present in the hospital room, which was connected telephonically with the courtroom. This would safeguard the appellant’s condition and his right to be present at all stages of trial. Clearly, there can be no issue of denial of confrontation and cross-examination because all parties to the proceeding, including the appellant, had testified in open court the previous day, August 25, 1976.

Careful examination of the record of the afternoon of August 26,1976, indicates that only three objections were made to the closing argument, each of which was sustained and instruction given to the jury to dismiss the statement of counsel as not being evidence in the cause. Further, following the oral charge of the court, each side announced, “Satisfied,” and no exception was taken (R. p. 125). Thereafter, the trial judge gave five of the written requested charges at the request of appellant’s counsel. Before the resumption of this proceeding, the trial judge carefully polled each member of the jury, each of whom affirmatively reflected that he would not be prejudiced in his deliberation by the appellant’s absence from the courtroom or against the appellant in any manner by virtue of the occurrence in question (R. pp. 114-115).

Mrs. Womack, the nurse attending at the direction of Dr. Swatsdruber, and each of the two attorneys appointed by the court indicated that the appellant was alert, able to communicate with his counsel and the court, and could clearly hear the proceedings.

We need not digress at this juncture into suicide and its attendant status and penalties under the law. See New York Life Insurance Company v. Turner, 213 Ala. 286, 104 So. 643; McMahan v. State, 168 Ala. 70, 53 So. 89; Penn Mutual Life Insurance Company v. Cobbs, 23 Ala.App. 205, 123 So. 94; also Annotations, 92 A.L.R. 1180; 112 A.L.R. 1278; 72 A.L.R.2d 554 at page 631.

This Court has determined from its examination of the record that the appellant, Robert Thomas Dixon, was “competent to understand and continue the trial proceedings.” We also note that Dixon had received the proper medical treatment and fully comprehended the proceedings, which were resumed under the conditions as herein outlined. The appellant at this point had the capacity to transact business. See Seibold v. State, 50 Ala.App. 613, 281 So.2d 667, cert. denied 291 Ala. 797, 281 So.2d 668.

This Court fully recognizes that it has long been the law of this state that a party may not voluntarily absent himself from the trial proceedings and then seek to profit by attacking the vitality of the judicial process caused by his own action. Jackson v. State, 38 Ala.App. 114, 78 So.2d 665; and Aldridge v. State, 278 Ala. 470, 179 So.2d 51.

As pointed out by Judge Harris in Robinson v. State, Ala.Cr.App., 337 So.2d 1382:

“A defendant has no right to receive a mental examination as to his sanity whenever he requests one and, absent such a right, the trial court is the screening agent as to such request. Pace v. State, 284 Ala. 585, 226 So.2d 645.”

Moreover, this Court is fully committed to the principle laid down by the Supreme Court of Alabama in Shadle v. State, 280 Ala. 379, 194 So.2d 538:

“. . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. . . . ”

Having carefully weighed all the circumstances attendant to the attempted suicide by Dixon, and the careful treatment and handling of this matter by the trial court, as herein above outlined, we are clear to the conclusion that no abuse of discretion is here shown. The trial judge determined, after consultation with the attending physician and nurse, the appellant was competent to resume the proceedings, and he appointed counsel to assist and be present in the hospital room and in the courtroom to aid Dixon. The hospital room was connected telephonically with the courtroom, and no error is shown, nor adverse ruling shown, with reference to the resumption and completion of the trial proceedings.

Moreover, upon receipt of the verdict, each juror was individually polled a second time, and each stated that the verdict was his. Ten years is the minimum punishment for robbery in Alabama. This was the verdict rendered in this cause.

We have carefully weighed all of the circumstances presented and are of the opinion that no error is presented.

We are further of the opinion that the trial judge fully complied with the requirements of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; and Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489, by virtue of the hearing and procedures here employed.

Ill

A third issue presented for review in this cause is raised by appellant’s counsel in his motion for new trial wherein he asserts the following (R. p. 154):

“3. The defendant was denied his right to be present at every stage of the trial.
“4. A mistrial was erroneously denied when the defendant’s competency to stand trial became an issue due to an attempted suicide.”

In reviewing the issue as raised by the motion for a new trial, supra, we note there is in the record a letter from Donna C. Click, Social Worker of the office of the Sheriff of Jefferson County, Melvin Bailey, to Mr. Wadell Zanaty, Court Coordinator, with copies to the trial judge, the chief correctional officer, and the district attorney’s office. This letter and the accompanying letter from Dr. B. E. Blankenship, Medical Doctor and Psychiatrist, University of Alabama in Birmingham, who examined the appellant, are as follows (R. pp. 152-153):

“October 18, 1976
“Mr. Wadell Zanaty
Court Coordinator
Jefferson County Courthouse
Birmingham, Alabama 35203
“RE: Robert T. Dickson [sic]
“Dear Mr. Zanaty:
“Enclosed is a copy of a letter from Dr. B. E. Blankenship, who examined the above named individual on October 12, 1976, in the Jefferson County Jail, at the request of Chief Warden, Lionel Bragan.
“This individual has been sentenced to ten (10) years on a charge of robbery, and is now awaiting trial on a robbery charge. Dr. Blankenship feels this individual should be transported to the appropriate state facility because of his attempts to commit suicide. Any assistance you can give to help expedite this man to Bryce or the state prison system as soon as possible, would be greatly appreciated.
“Should you have any questions concerning this individual, please do not hesitate to contact me.
“Yours truly,
S/ Donna C. Click
Donna C. Click
Social Worker
“DCC/mlb
CC: Honorable Joseph Jasper, Judge
Lionel Bragan, Chief Correctional Officer
District Attorney’s Office
B. E. Blankenship, M. D.”
“TO: (Referral) Lionel L. Bragan.
Chief Correctional Officer
“FROM: B. E. Blankenship. M. D.
Psychiatrist, University of Alabama in Birmingham
“DATE EXAMINED: October 12. 1976
“INFORMATION FURNISHED BY: Jacqueline Coe-man
“PREVIOUS PSYCHIATRIC TREATMENT: [Left blank]
“SUMMARY
October 15, 1976
“RE: Robert T. Dickson
“Dear Chief Bragan:
“On October 12, 1976, in the Jefferson County Jail, I had occasion to perform psychiatric evaluation on Robert T. Dickson. Historical information was obtained by Mrs. Donna Click from the patient’s' mother, Jacqueline Cogman. This individual has been sentenced to ten (10) years on a robbery charge (case number 36300), and is awaiting trial on another robbery charge. This individual has a past history of eating glass, paint chips, and razor blades.
“On examination today, this individual was a lucid, partially oriented black male with a sad and depressed mood. His affect was inappropriate and appears withdrawn. He was poorly organized in a psychological sense, and appears to be delusional. He has dull to normal intelligence.
“This individual is functioning in a psychotic range, and should be committed to the appropriate state hospital for a period of observation and treatment.
“ S/ B. E. Blankenship M.D.
“CC: Honorable Joseph Jasper, Judge
District Attorney’s Office
Wadell Zanaty, Court Coordinator”

This resulted in the following order entered October 25, 1976, by the Honorable Charles R. Nice, Circuit Judge (R. p. 151):

“STATE OF ALABAMA IN THE CIRCUIT COURT
VS TENTH JUDICIAL CIRCUIT
ROBERT T. DICKSON OF ALABAMA, CIRCUIT
COURT NOS. 36300 & 36301
“ORDER COMMITTING DEFENDANT TO INSANE HOSPITAL
“WHEREAS, the defendant Robert T. Dickson, is in confinement in the County Jail of Jefferson County, Alabama, being held under an indictment returnable to Jefferson County Circuit Court charging him with Robbery, and whereas it appears to the Court that he is probably insane, and this Court has instituted a careful investigation of defendant’s mental condition, has called Dr. B. E. Blankenship, psychiatrist, and Sheriff Melvin Bailey and Chief Correctional Officer Lionel Bragan, who are in charge of said defendant where he is so confined; and from the testimony of two witnesses, Donna Click and Chief Bragan, it has been satisfactorily proved that defendant probably has a mental disease and is probably insane.
“NOW, THEREFORE, it is by the Court ordered, pursuant to Title 15, Section 428, of the Code of Alabama as recompiled in 1958, that the Sheriff of Jefferson County discharge defendant from said imprisonment in the County Jail and safely remove him to the Bryce Hospital for the Insane at Tuscaloosa, Alabama, and deliver the person of the defendant to the Superintendent of said hospital where said Superintendent and all other proper officers of said hospital are ordered and directed to keep defendant in safe custody until he is restored to his right mind and at which time said Superintendent shall inform this Court and the Sheriff of Jefferson County, whereupon said Sheriff is ordered to go to said hospital, take defendant into custody and remand him to confinement, without bond, in the County Jail of Jefferson County, Alabama, until further order of Court. Said hospital authorities are directed and enjoined to keep said defendant in safe custody at all times and not to release him except to the Sheriff of Jefferson County unless otherwise ordered by this Court.
“DONE AND ORDERED this 25th day of October, 1976.
“S/ Charles Nice_
JUDGE, CIRCUIT COURT’

The issue here presented is a close one because there is here presented evidence of a medical doctor and practicing psychiatrist, who examined the appellant on October 12, 1976, approximately six weeks following trial, and determined that the appellant was functioning in a psychotic range and should be committed to a state hospital for observation and treatment.

Moreover, following a hearing on this matter, the Honorable Charles Nice, Circuit Judge, entered an order stating that it “had been satisfactorily proved that the defendant (appellant) probably has a mental disease and is probably insane.”

The appellant had another robbery charge pending against him, so no doubt Judge Nice felt it appropriate to have a determination of his competency to stand trial made pursuant to Title 15, Section 428, Code of Alabama 1940, as recompiled 1958. See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815.

Confronted with the foregoing matters, the trial judge had originally set the motion for new trial for October 22, 1976. This motion was continued until November 19, 1976, and denied without further opinion.

It thus appears that the trial judge was confronted with the issue of a confrontation in views between the physician who treated the appellant at the time of his attempted suicide, and subsequently advised the trial court that the appellant was “competent to understand the continuation of the trial proceedings,” and the views expressed by Dr. Blankenship.

Though the matters hereinabove set forth raise a serious question as to the appellant’s competency to stand trial, we cannot ascribe error to the trial judge, who no doubt relied upon the advice of the original attending physician. The motion for a new trial was therefore properly overruled.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Alexander H. LEEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 50372.
    Supreme Court of Florida.
    April 4, 1978.

      Max B. Kogen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Sidney M. Pertnoy, Asst. Atty. Gen., Miami, for appellee.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Dade County which held that Section 817.482, Florida Statutes (1975) (Ch. 74-137, Sec. 1, Laws of Florida) was constitutional.

The portion of the statute under attack reads as follows:

“(2) Any person who shall make or possess, for purposes of avoiding or attempting to avoid payment for long distance telecommunication services, any electronic device capable of duplicating tones or sound utilized in long distance telecommunications shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”

On March 3rd, 1975, Gordon Palmer, a commercial pilot for Eastern Airlines, was in the terminal building at Miami International Airport on a layover between flights. As he walked past a series of pay telephones, he heard signals generated which sounded like a touch tone telephone. He observed that the tones were coming from the defendant standing at a pay phone with a device in his hand. Palmer was only three or four feet away from the defendant when this observation was made.

Palmer then contacted a security guard, who in turn found a Metro policeman. The three then went to the telephone area and observed defendant talking on the same phone at which he had previously been observed by Palmer. A minute or a minute and a half had elapsed from the time Palmer left the area until he returned with the policeman and the guard. The instrument, identified as a “Blue Box”, was taken from the defendant and determined to be in working order. An information was filed, charging that defendant:

“did unlawfully, feloniously, and knowingly make or possess, for purposes of avoiding or attempting to avoid payment for long distance telecommunication services, an electronic device capable of duplicating tones of sound utilized in long distance telecommunications, to wit: A BLUE BOX, in violation of 817.482, Florida Statutes.”

By motion to dismiss, which was denied by the court, defendant attacked the constitutionality of the statute, contending that same was vague and ambiguous. Defendant says that the statute lends itself unduly to a construction that renders the mere possession of an instrument capable of duplication of tones for the purpose of avoiding payment a felony, absent any showing of intent on the part of the possessor. In other words, the possession is unlawful even though the person in possession has no intent of violating the criminal laws. Defendant relies upon the principles stated in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), where the Supreme Court of the United States referred to the general rule of law that to constitute guilt there must not only be a wrongful act, but a criminal intention. He says that the act is so vague that anyone of common intelligence must necessarily guess at its meaning and would differ as to its application contrary to the principles announced in Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934). The Court in Brock v. Hardie adopted the following test:

“Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in the opinion above mentioned, ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ ” Brock, supra, at 114 Fla. 678 and 154 So. 694.

When the constitutionality of a statute is assailed, if the statute is reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other it would be valid, it is the duty of the court to adopt that construction which will save the statute from constitutional infirmity. Boynton v. State, 64 So.2d 536 (Fla.1953). The statute conveys a sufficiently definite warning as to the proscribed conduct. Measured by common understanding and practice, the statute makes it unmistakably clear that one has not violated the law unless his or her intent in making or possessing the device is to avoid or attempt to avoid payment for long distance telecommunications services.

We hold that the statute is not so vague and ambiguous as to be unconstitutional.

Defendant also says that the information merely tracks the statute, and it is so vague that it does not adequately inform defendant of the charge against him and does not inform him with such sufficiency as to enable him to prepare a defense and protect him from subsequent charges for the same act. This argument is without merit.

In order to charge one with an offense defined by a statute, the offense must be charged “in the very language of the statute, or in language of equivalent import” and “nothing can be taken by in-tendment.” Gibbs v. Mayo, 81 So.2d 739 (Fla.1955); Catanese v. State, 251 So.2d 572 (Fla. 4th DCA 1971). The purpose of an information is to fairly apprise defendant of the offense with which he is charged. Drozewski v. State, 84 So.2d 329 (Fla.1955); Machin v. State, 270 So.2d 464 (Fla. 3d DCA 1972). The information was sufficient and the motion to dismiss was properly denied.

Prior to trial, defendant filed a motion for a bill of particulars and the court granted that part of the defendant’s motion requesting:

“1. Whether any phone calls were made by the Defendant, on March 3, 1975, at leval [sic] three, Eastern Airlines, Miami International Airport, with the intent to avoid payment of same.”

The State never responded to the defendant’s motion. At trial, immediately following the prosecutor’s opening statement, defense counsel brought to the court’s attention the fact that the State had failed to furnish defendant the required statement of particulars. Defendant moved for a judgment of acquittal and for a mistrial, both of which were denied. Defendant now says that the trial court erred in failing to grant the mistrial.

Violation of a rule of criminal procedure does not require a reversal of a conviction unless the noncompliance with the rule results in prejudice or harm to the defendant. The rules of criminal procedure are not intended to furnish a procedural device to escape justice. Williams v. State, 316 So.2d 267, 274 (Fla.1975); Richardson v. State, 246 So.2d 771, 774 (Fla.1971); Sykes v. State, 329 So.2d 356, 358 (Fla. 1st DCA 1976); Cannon v. State, 317 So.2d 459, 460 (Fla. 1st DCA 1975). The trial court has discretion in determining whether the noncompliance results in harm or prejudice to the defendant, but the court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Richardson, supra, at 775. However, in those cases where the court determines that the State’s noncompliance with the rule has not prejudiced the ability of the defendant to properly prepare for trial, it is essential that the circumstances establishing non-prejudice to the defendant affirmatively appear in the record. Richardson, supra, at 775.

When the defendant moved for a mistrial, the trial judge, following the directive in Richardson, supra, undertook an exhaustive “inquiry into all of the surrounding circumstances” in order to determine whether the noncompliance resulted in harm or prejudice to the defendant. The trial judge determined that defense was aware of the State’s inability to provide the required information at a much earlier time.

Prejudice in regard to the violation of a rule of criminal procedure means something which affects the ability of the defendant to properly prepare for trial. Richardson, supra. The fact that defendant came to trial without requesting sanctions prior to that time certainly indicates that he was ready for trial. Six months elapsed from the granting of his motion until the request for sanctions. There could be no prejudice affecting the ability of defendant to prepare for trial if defendant waits until the day of trial before attempting to show prejudice. The defendant made no attempt to secure an order requiring the State to comply with the rule. Nor did he call to the court’s attention the fact that such an order was necessary to his defense. See Oatman v. State, 289 So.2d 431 (Fla. 3d DCA 1974). The defendant has failed to demonstrate reversible error on this point.

The trial court correctly denied defendant’s motion for a judgment of acquittal. See Lynch v. State, 293 So.2d 44 (Fla.1974); Hoover v. State, 212 So.2d 95 (Fla. 3d DCA 1968).

There was sufficient evidence to support a finding of guilt. The defendant never denied that he was in possession of a “Blue Box”. The question of whether he possessed the device with the requisite criminal intent could be inferred from the circumstances. Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966). The facts show much more than a bare suspicion of guilt and are sufficient to support the conviction. See Davis v. State, 90 So.2d 629 (Fla.1956); Lowe v. State, 90 Fla. 255, 105 So. 829 (1925).

The defendant having failed to show reversible error, the judgment and sentence of the trial court is affirmed.

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.

HATCHETT, J., concurs in result only.


author: KARL, Justice.

text:
    STATE of Florida, Petitioner-Cross Respondent, v. Robert MUNFORD, Respondent-Cross Petitioner.
    No. 51411.
    Supreme Court of Florida.
    April 4, 1978.

      Robert L. Shevin, Atty. Gen. and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for petitioner-cross respondent.
    Jack 0. Johnson, Public Defender, Greg A. Johnson and Robert H. Grizzard, II, Asst. Public Defenders, Bartow, for respondent-cross petitioner.
   KARL, Justice.

This cause is before us on a cross-petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, in Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), which is in direct conflict with the decisions of the District Court of Appeal, First District, in Montgomery v. State, 332 So.2d 679 (Fla. 1st DCA 1976), and Jackson v. State, 311 So.2d 811 (Fla. 1st DCA 1975). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. The sole issue before us is the legality of the sentence imposed on cross-petitioner by the trial judge.

Cross-petitioner was adjudicated guilty of felony possession of marijuana and sale of a controlled substance in violation of Section 893.13, Florida Statutes (1975), and was sentenced to two concurrent three-year terms of probation. On appeal, the cross-petitioner argued, inter alia, that the trial judge’s imposition of separate sentences for each offense when both offenses arose out of a single transaction constituted error. The District Court rejected cross-petitioner’s argument, holding that Section 775.-021(4), Florida Statutes (Supp.1976), which permits a separate sentence to be imposed for each criminal offense arising from a single act or transaction, was controlling and the imposition of the two sentences was not error. The basis of the District Court’s holding that Section 775.021(4), Florida Statutes (Supp.1976), applied was the court’s belief that the statute became effective on October 1, 1975, and, thus, was the applicable law when the cross-petitioner committed the offenses charged on November 3, 1975.

An examination'of Ch. 76-66, § 2, Laws of Florida, reveals that the effective date of Section 775.021(4), Florida Statutes (Supp. 1976), is October 1, 1976. Also, both the 1976 supplement to the Florida Statutes (1975) and the 1977 supplement to Florida Statutes Annotated recite the effective date of Section 775.021(4), Florida Statutes (Supp.1976), as being October 1, 1976. Therefore, it is apparent, and this fact is conceded by cross-respondent in its brief, that the District Court was wrong in ruling that Section 775.021(4), Florida Statutes (Supp.1976), was applicable to the offenses committed by cross-petitioner on November 3, 1975.

Prior to October 1, 1976, the law with regard to the sentencing of an individual upon his conviction of two or more criminal offenses arising out of the same transaction was accurately reflected by the decisions in Montgomery v. State, supra, and Jackson v. State, supra, which held that upon the conviction of two or more offenses arising out of the same transaction, an individual could only be sentenced for the higher of such offenses. Although Section 775.021(4), Florida Statutes (Supp.1976), as of October 1, 1976, replaced the holdings of Montgomery v. State, supra, and Jackson v. State, supra, as the controlling law on the question sub judice, the statute was not in effect on November 3, 1975, and cannot be applied retroactively to the cross-petitioner’s detriment. Higginbotham v. State, 88 Fla. 26, 101 So. 233 (1924). Cross-petitioner was entitled to be sentenced pursuant to the law in effect on November 3, 1975, which required a sentence consistent with the decisions in Montgomery v. State, supra, and Jackson v. State, supra.

Accordingly, that portion of the District Court’s opinion rejecting cross-petitioner’s allegation of error by the trial judge in sentencing is quashed, and the cause is remanded to the District Court for further proceedings not inconsistent herewith. This Court has previously denied the petition for certiorari by order dated December 12, 1977.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Sarah S. HARRIS, Appellee.
    No. 52496.
    Supreme Court of Florida.
    April 4, 1978.
    William E. Whitley, Asst. State’s Atty., Gainesville, for appellant.
    William B. Salmon, Asst. Public Defender, Gainesville, for appellee.
   PER CURIAM.

Reversed. State v. Harris et al., 356 So.2d 315 (Fla.1978).

It is so ordered.

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

ADKINS, J., dissents.


text:
    In re the ESTATE of Lester WARTELS, Deceased. Edmund S. WARTELS, Executor of the Estate of Lester Wartels, Petitioner, Cross-Respondent, v. Tillie WARTELS, Respondent, Cross-Petitioner.
    No. 50488.
    Supreme Court of Florida.
    April 5, 1978.

      Paul A. Louis, Frank NussbaUm, Bayard E. Heath and John L. Zavertnik, of Sinclair, Louis, Siegel & Heath, Miami, for petitioner/cross-respondent.
    Michael I. Libman, of Abramson, Scre-min, Mendigutia & Libman, Miami, for respondent/cross-petitioner.
   ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the District Court of Appeal, Third District, that its decision reported in 338 So.2d 48 (Fla. 3d DCA 1976) is one which involves a question of great public interest. We have jurisdiction. Article V, Section 3(b)(3), Florida Constitution.

The question involved is whether a cooperative apartment may be considered to be homestead property for the purpose of subjecting it to the Florida statutes regulating the descent of homestead property. We answer the question in the negative.

On January 2, 1975, the executor, son of the deceased, began the probate of the Last Will and Testament of his father. There were no lineal descendants of the widow and the deceased, although each had children by previous marriages, all of whom had reached adulthood. The widow and the deceased had lived in a cooperative apartment. In the probate proceedings the widow claimed the cooperative apartment as the homestead, and the executor claimed it was not a homestead.

Unlike a condominium purchaser, a cooperative apartment unit purchaser does not receive title to the cooperative apartment unit, nor does he become entitled to ownership of any portion of the building or the land upon which the cooperative apartment unit is situated. Rather, a cooperative apartment unit purchaser only receives shares in the corporation which holds title to the land on which the cooperative apartment building is constructed. In conjunction with the purchase of the shares in the cooperative corporation, the stockholder receives a lease, for his individual cooperative apartment unit. In short, the purchaser of a cooperative apartment unit does not hold any type of proprietary interest in either the apartment itself or the apartment building containing the apartment unit, or the land upon which the building is situated. See Annot., “Transfer of, and Voting Rights, in Stock of Co-operative Apartments Association”, 99 A.L.R.2d 236 (1965).

An owner of stock in a cooperative apartment corporation is restricted from transferring that stock and is further restricted from transferring the lease he holds to the individual apartment unit. These restrictions are tied together. The transfer of the stock or the lease could not be effected without first obtaining consent from the Board of Directors of the corporation.

Article X, Section 4, of the Florida Constitution reads as follows:

“§ 4. Homestead — exemptions
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.”

Sections 731.05 and 731.27, Florida Statutes (1973), which were applicable in this case, provide as follows:

“731.05 Property which may be devised.—
(1) Any property, real or personal, held by any title, legal or equitable, with or without actual seisin, may be devised or bequeathed by will; provided, however, that whenever a person who is head of a family, residing in this state and having a homestead therein, dies and leaves either a widow or lineal descendants or both surviving him, the homestead shall not be the subject of devise, but shall descend as otherwise provided in this law for the descent of homesteads.”
“731.27 Descent of homesteads. — The homestead shall descend as other property; provided, however, that if the decedent is survived by a widow and lineal descendants, the widow shall take a life estate in the homestead, with vested remainder to the lineal descendants in being at the time of the death of the decedent.”

Neither the Constitution nor the statutes define a homestead for the purpose of devise and descent. The words contained in Article X, Section 4(a)(1) “to the extent of one hundred sixty acres of contiguous land” and the words “if located within a municipality, to the extent of one-half acre of contiguous land” have been repeatedly defined to mean that homestead property must consist of an interest in realty Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); Hill v. First National Bank, 73 Fla. 1092, 75 So. 614 (1917); Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912).

The widow relies upon Ammerman v. Markham, 222 So.2d 423 (Fla.1969) to support her position. In Ammerman, supra, the Court allowed homestead exemption for the purpose of taxation to owners of cooperative apartments. The Court considered Section 196.031, Florida Statutes (1973) which allowed the tax exemption of homestead and included a provision that “an exemption up to the assessed valuation of five thousand dollars may be allowed on each apartment occupied by a tenant-stockholder or member of a cooperative apartment corporation . . . Article VII, Section 6, Florida Constitution, providing for homestead exemption from taxation was the controlling constitutional provision considered in Ammerman v. Markham. The Court did not clothe cooperative, apartments with homestead status; it merely sustained the statutory implementation of Article VII, Section 6, Florida Constitution,governing tax exemption for homesteads. In holding that the widow was not entitled to homestead in the deceased’s cooperative apartment, the District Court of Appeal in the case sub judice said:

“This does not conflict with the decision in Ammerman v. Markham, 222 So.2d 423 (Fla.1969), which provides that the homestead exemption is applicable to cooperative apartments solely for the purpose of taxation.” In re: Estate of Wartels, supra, at 50.

We agree with this conclusion.

Section 196.041, Florida Statutes (1973) grants homestead exemption to a tenant-stockholder or member of a cooperative apartment corporation who is entitled to occupy for dwelling purposes an apartment in a building owned by the corporation. By specific provision this creation of homestead status is “for the purpose of homestead exemptions from ad valorem taxes and no other purpose . . . .” (Emphasis supplied)

The District Court of Appeal was correct in holding that a cooperative apartment may not be considered homestead property for the purpose of subjecting it to Florida Statutes regulating the descent of homestead property.

By accepting the certification we have jurisdiction to consider the other issues in the case. They were correctly determined by the District Court of Appeal.

We, therefore, approve the opinion of the District Court of Appeal and discharge the writ of certiorari.

It is so ordered.

OVERTON, C. J., and ENGLAND, HATCHETT and KARL, JJ., concur.


author: BOYD, Justice.

text:
    Antonio H. MESA, Appellant, v. Richard RODRIGUEZ, Appellee.
    No. 50560.
    Supreme Court of Florida,
    April 5, 1978.
    Irving Weinsoff and Thomas M. Carney of Weinsoff, Weinsoff & Carney, Miami, for appellant.
    Murray Goldman of West, Friesner & Goldman, Miami, for appellee.
    Richard Yale Feder and Irma Robbins Feder, Miami, for American Civil Liberties Union of Florida, Greater Miami Chapter, amicus curiae.
   BOYD, Justice.

This is a direct appeal from the Dade County Circuit Court. In a civil suit for damages the court directly passed on the constitutional validity of a state statute. We have jurisdiction of the appeal. Article V, Section 3(b)(1), Florida Constitution.

I.

Antonio Mesa, a police officer for the City of Miami, filed suit on July 20, 1976, for damages in the Dade County Circuit Court against Richard Rodriguez, a private citizen. The complaint filed with the court stated that the action was commenced under the authority of Chapter 74-274, § 2(3), Laws of Florida. It alleged that Mesa’s civil rights were abridged during the performance of his official duties when Rodriguez, through a letter to the Chief of Police, wrote that he had been mistreated by Mesa, acting in his official capacity. Furthermore, it charged that Rodriguez’ letter was “malicious, scandalous, false, defamatory and libelous. . . . ” Attached to the complaint was the letter.

The letter may be characterized as a petition to the Chief of Police for a redress of a grievance. This is a summary of it. On March 28, 1975, Rodriguez’ car had been parked at the intersection of Flagler Street and 11th Avenue for 45 minutes when he and his seven-year-old son emerged from a nearby cafeteria. Officer Mesa beckoned to him and asked for his license, which he turned over. The officer informed Rodriguez that he was citing him for a traffic infraction: making an improper left turn at the intersection of Flagler and 12th. Rodriguez telephoned the police station to inquire if he was required by law to sign the citation. The lieutenant who answered the phone was unable to provide an answer. After the telephone conversation Mesa told Rodriguez that if he did not sign the ticket he would be arrested. Two other police officers arrived. During the ensuing discussion Mesa admitted that he was not sure that Rodriguez’ car was the one that had made the unlawful turn, but stated that he had filled out the arrest order already. The officers lifted the child, who was crying, into a squad car and ordered Rodriguez into it. After threatening to take the child to the Juvenile Detention Center, they dropped him off at the home of relatives. Rodriguez was taken to jail. On the way the policemen expressed themselves “as if they had arrested a vile criminal.” Later, he was released on bail. Rodriguez asked the police chief to open an investigation and to interview Mesa.

II.

Section 112.532(3), Florida Statutes, the section of the statutes under which Mesa brought suit, is contained in Part VI of Chapter 112, Florida Statutes, the chapter of general provisions governing public officers and employees. Part VI is entitled “Law Enforcement Officers,” and is commonly known as “The Policeman’s Bill of Rights.” The section declares that every law enforcement officer has the right to bring a civil suit for damages suffered during the performance of his official duties or for abridgment of his civil rights arising out of the performance of official duties. The trial judge, in an order of summary final judgment, found the section to be unconstitutional, on its face and as applied in this case, under both the Declaration of Rights, Article I, Florida Constitution, and the First Amendment to the United States Constitution. The judge did not announce the specific right that had been violated. But, the issues presented here by the briefs and the parties in oral argument, and apparently the ones considered by the judge, are whether the statutory section, on its face or as applied, interferes unconstitutionally with a person’s right, as a citizen of this State and this Nation, to petition the government for a redress of grievances.

III.

Facially, the statute does not interfere with the constitutional right. It expresses no intent that the right be restricted in any way, nor can a restriction be inferred from it. In fact, a companion section of the statute, also part of “The Policeman’s Bill of Rights,” requires state law enforcement agencies to establish a system of receiving, investigating and determining complaints from any person. If Rodriguez had chosen, he could have lodged a complaint with the investigation system set up, pursuant to the statute, by the Miami Police Department. His complaint could have been reviewed by a Complaint Review Board composed as required by Section 112.532(2), Florida Statutes. And, the board, after a hearing, would have had authority to render an advisory recommendation as to action to be taken against Officer Mesa.

The challenged statutory section simply declares that law enforcement officers have a right to recover damages suffered during performance of their official duties. As written, it does nothing to restrict imper-missibly the constitutional right to petition for redress of grievances. And, while the part of the statutes in which the challenged section is laid provides protection for the due process rights of police officers under investigation, it also provides for the airing of grievances. If anything, the legislation is protective of the constitutional right.

IV.

The judge addressed the issue of the constitutional validity of the statute’s application because Mesa’s complaint stated that the action was brought under its authority and because counsel stipulated that without the section the action could not be commenced. But, the statute confers on Mesa no right to sue for defamation greater than any right he possesses under Florida law without it. Mesa may pursue an action for the tort of libel. The statute does nothing to add to this common law right. We do not need to discuss, therefore, the constitutional validity of the section’s application.

On remand Officer Mesa is to be given the opportunity to amend his complaint to bring an action for libel against Rodriguez not founded on Section 112.532(3), Florida Statutes. The order of the Circuit Court, in and for Dade County, is reversed, the statute is declared constitutional and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

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

KARL, J., concurs in result only.

HATCHETT, J., dissents.

      .Now codified as § 112.532(3), Fla.Stat.:
      (3) CIVIL SUITS BROUGHT BY LAW ENFORCEMENT OFFICERS. — Every law enforcement officer shall have the right to bring civil suit against any person, group of persons, or organization or corporation, or the head of such organization or corporation, for damages, either pecuniary or otherwise, suffered during the performance of the officer’s official duties or for abridgment of the officer’s civil rights arising out of the officer’s performance of official duties.

      . Record-on-Appeal, p. 2.

      . See, e. g., City of Hallandale v. Inglima, 346 So.2d 84 (Fla. 4th DCA 1977).

      . Declaration of Rights, Art. I, § 5, Fla.Const.: Section 5. Right to assemble. — The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.

      . First Amendment to the U.S. Constitution: Congress shall make no law abridging .. . the right of the people . . to petition the government for a redress of grievances.

      . 112.533 Receipt and processing of complaints. — Every agency employing law enforcement officers shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by such employing agency from any person.

      . (2) COMPLAINT REVIEW BOARD. — A complaint review board shall be composed of three members: One member selected by the chief administrator of the agency; one member selected by the aggrieved officer; and a third member to be selected by the other two members. Agencies having more than 100 law enforcement officers shall utilize a five-member board with two members being selected by the administrator, two members being selected by the aggrieved officer, and a fifth member being selected by the other four members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.

      . See lnglima, note 3, above, and Waters v. Purdy, 345 So.2d 368 (Fla. 3d DCA 1977).


text:
    James M. GAMMILL, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent.
    No. 50774.
    Supreme Court of Florida.
    April 5, 1978.
    Michael J. Minerva, Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   ADKINS, Justice.

This case is here on a writ of habeas corpus to decide whether James Gammill was invalidly sentenced because he was declared a mentally disordered sex offender in accordance with Chapter 917, Florida Statutes (1975) immediately before sentence was imposed. We have jurisdiction. Article V, Section 3(b)(6), Florida Constitution.

Gammill plead guilty to two charges of kidnapping while in the possession of a firearm. A competency hearing was held at which Gammill’s attorney stipulated to a physician’s finding that Gammill was competent.

After the trial judge accepted Gammill’s guilty plea, Gammill asked and was granted permission by the court to be examined by psychiatrists to determine whether he would qualify for treatment as a mentally disordered sex offender. At a subsequent hearing, the trial judge, after considering two psychiatrists’ reports, found Gammill to be a mentally disordered sex offender as defined in Section 917.13, Florida Statutes (1975). Immediately after this determination, the trial judge asked counsel present whether there was any legal reason why he should not pass sentence that day, to which Gammill’s attorney replied, “No, sir, your Honor”. Thereafter, the trial judge sentenced Gammill to a 35 year prison term for each of the kidnapping offenses, the sentences to run concurrently (with credit given for all time served in the state hospital). Gammill was transferred by the trial court to the Division of Mental Health for treatment at the state hospital in Chattahoochee, Florida, where he is presently institutionalized. The First District Court of Appeal affirmed Gammill’s conviction.

No record has been presented to this Court that Gammill contested the legality of his sentence in his appeal to the District Court of Appeal. This Court granted a writ of habeas corpus based on Gammill’s pro se application alleging he was being illegally detained because he was sentenced to a 35 year prison term immediately after being declared a mentally disordered sex offender and before his treatment was completed. Petitioner does not contest his commitment to the state hospital, but instead argues that the prison sentence to begin upon his release from treatment is invalid. It is settled law in this State that a defendant may contest at any time any future sentence to be served. State v. Reynolds, 238 So.2d 598 (Fla.1970).

Under Section 917.13, Florida Statutes (1975), a mentally disordered sex offender is “a person who is not insane but who has a mental disorder and is considered dangerous to others because of a propensity to commit sex offenses.” The statute provides that a court “[may] suspend the sentence and certify a defendant for a hearing and examination” to determine whether he is a mentally disordered sex offender if (1) the person is convicted of a felony or misdemeanor currently being prosecuted, whether or not the crime is a sex offense; (2) there is probable cause to believe that the person is a mentally disordered sex offender; and (3) if the mental disorder has existed for at least the preceding four months. Section 917.14, Florida Statutes (1975). If a court determines that a defendant is a mentally disordered sex offender, it “shall commit the defendant” for care, treatments and rehabilitation. Section 917.19, Florida Statutes (1975). Provisions for periodic examinations are outlined in the statute, and, upon a court determination that a person has recovered to the degree that he will not be a menace to others, the court shall discharge the defendant from the institution. If criminal proceedings are still pending, they shall recommence at the time of the discharge. Section 917.20, Florida Statutes (1975).

Gammill contends that he is being sentenced for what is essentially a mental disorder. Our State Constitution, Article I, Section 17, Florida Constitution, and the Eighth Amendment to the United States Constitution ban the imposition of criminal sanctions against an individual because it would be cruel and unusual punishment when his “crime” is that of having an illness. Cf. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Under the facts of this case, however, Gam-mill’s argument is without merit. He did not raise his mental disorder as a defense in the trial court, and sentence was imposed for acts to which he plead guilty, not for his mental disorder.

The purpose of the mentally disordered sex offender statute is clearly treatment and rehabilitation. If all sections of Chapter 917, Florida Statutes (1975) are read together only one interpretation seems appropriate. Section 917.14 says the court “may suspend the sentence” and certify the defendant for a hearing and examination to determine whether he is a mentally disordered sex offender. Section 917.20 says that when a person is recovered to the point he will no longer be a menace to others, he shall be discharged and if criminal proceedings are still pending against him, “they shall recommence at the time of the discharge order.” If a court suspends a sentence, this normally implies that a defendant is excused from serving the sentence and is placed on probation or conditionally released. Therefore, applying the usual interpretation of suspended sentence to Section 917.14 would mean that there might not be a criminal proceeding to recommence on discharge from treatment, thus when a defendant qualified for treatment under this statute, he might automatically be’relieved from serving any prison term imposed by the court. We do not read the statute to require such an irrational result.

We believe that what was intended by the language “may suspend the sentence” is that the imposition of sentence is suspended until the end of treatment. By deferring the sentencing until a defendant has completed treatment, the court can consider any rehabilitative effect the treatment may have had on the defendant, giving effect to the treatment purpose of the statute without preventing the trial court from requiring a prison term where circumstances indicate that a prison term should be served. There is no problem with suspending the imposition of sentence in this situation. As we stated in Helton v. State, 106 So.2d 79 (Fla.1958), quoting from Bateh v. State, 101 So.2d 869 (Fla. 1st DCA 1958):

“This is not to say that the trial judge may not withhold temporarily, or even from term to term, the imposition of sentence ‘for the purpose of determining motions and other matters arising between verdict and judgment, such as gaining information necessary to the imposition of a just sentence or during the pendency of other charges, or for other good and valid reasons.’ Bateh v. State, supra [101 So.2d 874].” Helton v. State, supra, at 80.

Since the trial court failed to follow the correct procedure in this case and that failure served to frustrate the purpose of the statute and to prejudice the rights of the defendant, we vacate the sentence and remand to the trial court for disposition in accordance with this opinion.

It is so ordered.

OVERTON, C. J, and ENGLAND, HATCHETT and KARL, JJ., concur.

      . In 1977, Chapter 917 was substantially reworded. See Chapter 77-312, Laws of Florida.


text:
    SOUTHEAST FIRST NATIONAL BANK OF MIAMI, a National Banking Association, and Southeast Services, Inc., a Florida Corporation, Petitioners, v. The Honorable William A. HERIN, as Circuit Judge of the Eleventh Judicial Circuit for the State of Florida, Respondent.
    No. 51316.
    Supreme Court of Florida.
    April 5, 1978.

      Joseph P. Klock, Jr., of Steel, Hector & Davis, Miami, for petitioners.
    Stuart Simon, Dade County Atty., Miami, and Murray A. Greenberg, Asst. County Atty., Miami, for respondent.
   PER CURIAM.

The sole question presented on this appeal is whether the failure to file a notice of appeal from a county court judgment in the office of the clerk of the circuit and county court in a timely fashion deprives the circuit court of appellate jurisdiction where the notice of appeal was filed in an otherwise timely fashion but in the district court of appeal.

This question is answered in the affirmative by the decision of this Court in State ex rel. Diamond Berk Insurance Agency, Inc. v. Carroll, 102 So.2d 129 (Fla.1958), and the decision of the First District Court of Appeal in In re Estate of Hatcher, 270 So.2d 45 (Fla. 1st DCA 1972).

Respondents argue that Diamond Berk and Hatcher are not controlling because Fla.App. Rule 2.1(a)(5)(d) was neither referred to nor discussed in either of the opinions and that inasmuch as Court rules take precedence over decisional law, the rule should govern, and that a notice of appeal, if filed within the 30-day period in the appellate court and later transferred in the trial court, confers jurisdiction on the appellate court. We do not agree.

The obvious reason that the rule was not discussed or mentioned in Diamond Berk was that it was not applicable. This rule was designed to permit the transfer of cases where the appeal is taken to the wrong appellate court. For instance, where an appeal in a bond validation proceeding is taken to the District Court of Appeal instead of to the Supreme Court, or where an appeal in a case where the death penalty has been imposed is taken to the District Court instead of the Supreme Court, or where an appeal where life imprisonment has been imposed is taken to this Court instead of the District Court. There are also instances where jurisdiction depends on whether the trial court directly passed on the validity or constitutionality of a statute. Where it is determined that the jurisdiction of the wrong court has been invoked, the rule, and the constitution, as amended, provide for such transfer. The necessity for such a rule was the result of the creation of the District Courts of Appeal in Revised Article V of the Florida Constitution in 1957, and the proscribed jurisdiction of the courts of the appellate system in the constitution. Diamond Berk was written in 1958, shortly after such revision and at a time when the various provisions of the rules, and constitution, and the purposes behind them were fresh in the Court’s mind. In Diamond Berk, Mr. Justice Thornal, writing for the Court, said:

“Our conclusion turns on the question as to whether the original filing of a notice of appeal in the appellate court, as distinguished from the filing of such notice in the trial court, confers jurisdiction upon the appellate court.” At 129.

Then, proceeding with a discussion of the facts, it is said:

“Diamond Berk Insurance Agency moved to dismiss the appeal, asserting as a ground for the motion the fact that the notice of appeal had been filed in the District Court rather than in the Circuit Court as required by applicable rules. The respondent District Court took the view that the filing of the notice of appeal in the wrong court apparently resulted from a clerical oversight or misprision and did not deprive that court of exercising a reasonable discretion to assume jurisdiction.” At 130.

The clear and explicit holding of the Court was:

“Despite what might appear to be the imposition of a hardship, we are compelled to conclude that under applicable rules the timely filing of a notice of appeal at the place required by the rules is essential to confer jurisdiction on the appellate court. We have on numerous occasions held in similar situations that jurisdiction could not even be conferred by consent of the parties, when the notice of appeal was not filed as required by applicable rules.
“Rule 3.2(a) Florida Appellate Rules, specifically delineates the method for commencing an appeal and prescribes that this shall be accomplished ‘by filing a notice of appeal . . . with the clerk of the lower court.’ Rule 3.2(d) clearly states that the filing of the notice and the payment of the filing fee ‘with the clerk of the lower court’ shall give the appellate court jurisdiction of the subject matter and of the parties to the appeal.
“A court has no power to act in the absence of a jurisdictional foundation for the exercise of the power. The timely and proper filing of a notice of appeal is a jurisdictional essential to enable an appellate court to exercise its power.” At 130-31.

In Hatcher, supra, decided some 14 years later, on the identical point, the First District Court held:

“The notice of appeal herein not having been timely filed in the office of the clerk of the correct court, we are obliged to grant appellee’s motion to dismiss on jurisdictional grounds, insofar as the same purports to best this court with jurisdiction to review the order rendered September 18, 1972, by the County Judge’s Court in and for Gadsden County, Florida, in Case No. 2536, therein lately pending. State v. Carroll, 102 So.2d 129 (Fla.1958).” 270 So.2d 45.

We now reaffirm the holdings in these cases.

We have carefully considered the cases cited by respondents but find them to be inapposite for one reason or another not necessary to discuss here.

Reversed and remanded with directions to the District Court to issue the rule nisi in prohibition in accordance with the provisions of Fla.App. Rule 4.5(d)(2), to the Circuit Court of Dade County, prohibiting further action in such attempted appeal.

Reversed and remanded.

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

BOYD and KARL, JJ., dissent.

       The following opinion and judgment by Drew, J. (Ret.), prepared prior to his death on February 9, 1978, is hereby adopted as the opinion and judgment of this Court.

      . When the jurisdiction of an appellate court has been improvidently invoked, that court may of its own motion or on motion of either party to the cause enter an order transferring it to the court having jurisdiction. Five days’ notice of such motion or proposed action shall be given to the other parties. Notices of appeal and other papers filed prior to the transfer shall have the same force and effect as if filed in the proper court and as of the time when filed in the court from which the transfer was made. Also, see Art. V, § 2(a), Fla.Const.

      . Art. V, § 3(b)(2), Fla.Const. — When provided by general law, shall hear appeals from final judgments and orders of trial courts imposing life imprisonment or final judgments entered in proceedings for the validation of bonds or certificates of indebtedness.

      . Art. V, § 4(b)(1), Fla.Const. — District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to the supreme court or a circuit court. They may review interlocutory orders in such cases to the extent provided by rules adopted by the supreme court.

      . Art. V, § 2(a), Fla.Const. — The supreme court shall adopt rules for the practice and procedure in all courts including the time for seeking appellate review, the administration supervision of all courts, the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought. These rules may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.


author: ENGLAND, Justice.

text:
    George Lee TUCKER, Petitioner, v. STATE of Florida, Respondent.
    No. 51621.
    Supreme Court of Florida.
    April 5, 1978.
    Jack T. Edmund, John C. Wilkins, III, and John Robert Howes of Edmund & Wilkins, Bartow, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for respondent.
   ENGLAND, Justice.

The Second District Court of Appeal has certified to us, as passing on a question of great public interest, its decision upholding petitioner’s conviction and sentence for second degree murder in the face of an asserted right to discharge under our speedy trial rule. We accept the case for review to resolve confusion among the district courts as to which of two provisions in our speedy trial rule should be applied following the state’s successful appeal of a trial court ruling dismissing an indictment.

Under Rule 3.191(g) as it existed when the district court ruled, the state was automatically given 90 days from the trial court’s receipt of an appellate court’s mandate within which to bring the defendant to trial. Under Rule 3.191(d)(2)(iv) as it then existed, the state was given a “reasonable” time to bring a defendant to trial after an interlocutory appeal, but only if it had first obtained an extension of time from the lower court. In the decision now brought to us for review, the district court determined that no prior application to the trial court was necessary because the automatic 90-day provision applied. The essential facts which led to that conclusion are these.

In 1974 Tucker was arrested and indicted for first degree murder. After he successfully moved to dismiss the indictment, the state took a timely appeal from the order of dismissal without first asking the trial court to toll the speedy trial rule. On appeal the state prevailed. Less than 90 days after the district court’s mandate issued, Tucker moved for discharge pursuant to Florida Rule of Criminal Procedure 3.191, alleging that the time for bringing him to trial had expired. The trial court denied this motion, ruling that the appellate proceeding had tolled the speedy trial period until the mandate of the district court was issued. Tucker was then tried, found guilty of second degree murder, and sentenced to five years imprisonment.

On appeal of his conviction, Tucker argued that the trial court mistakenly denied his motion for discharge, thereby confronting the district court with a choice between the automatic tolling rule (Rule 3.191(g)) and the “stay by request to the trial court” rule (Rule 3.191(d)(2)(iv)). The district court held that the state’s failure to move for an extension precluded any reliance on Rule 3.191(d)(2)(iv), but ruled that the automatic 90-day extension was applicable. It then affirmed Tucker’s conviction and certified its decision to this Court as one passing upon a question of great public interest.

In attempting to select which of the two provisions of our speedy trial rule might govern after the state’s successful appeal of a trial court order which dismisses an indictment, the district court observed that nothing in Rule 3.191 (as it then existed) dealt expressly with this situation. An attempt to resolve the controversy by reference to the statutory “stay” provision for state appeals does not avail the state, Carroll v. State, 251 So.2d 866 (Fla.1971), any more than does its attempt to attribute the delay to Tucker on the ground that he was not continuously available for trial. We recently amended the rule to resolve this very issue, however, by requiring an application to the trial court for an extension of the speedy trial period under these circumstances. This new provision does not have retrospective effect, however, and it remains for us to decide whether the district court reached the correct result under the predecessor rule.

Rule 3.191(g) provides in relevant part: “A person who is to be tried again shall be brought to trial within 90 days from the date of . receipt by the trial court of a mandate . . . from an appellate or other reviewing court which makes possible a new trial for the defendant . . .

Rule 3.191(d)(2), as it then existed, provided:

“The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . . . (iv) [for] a period of reasonable and necessary delay resulting from proceedings including but not limited to . interlocutory appeals . . . .”

As the district court correctly observed, a literal reading of subsection (g) would indicate that it is inapplicable where an order dismissing an indictment or information has been reversed on appeal, since in those cases which have not yet proceeded to trial there can be no “new trial” and a defendant obviously cannot be “tried again.” On the other hand, subsection (d)(2)(iv) cannot apply to this situation since an order dismissing an indictment is not interlocutory but final.

The Second District first confronted this dilemma in State v. Williams, 287 So.2d 415 (Fla.2d DCA 1973), where it suggested in dictum that it would be “logical to assume” that subsection (g) was intended to apply whenever an order dismissing the charging instrument was overturned on appeal. The court there cautioned prosecutors, however, to move for extensions under subsection (d)(2) “[ujntil such time as the wording of the Rule is modified or a definitive court ruling is made.” In State v. Vinson, 294 So.2d 418 (Fla.2d DCA 1974), the court took a stronger position, stating that

“If the question were squarely presented to us, we would construe [subsection (g)] to encompass the reversal of an order dismissing an information.”

Again, however, the court warned against reliance on that construction so long as the wording of the rule remained unsettled. Finally, in State v. Glidewell, 311 So.2d 126 (Fla.2d DCA 1975), Judge Grimes indicated in a special concurring opinion that although subsection (d)(2)(iv) was clearly applicable where the state did move for an extension in the trial court, “a similar result could be reached” by giving effect to the interpretation of subsection (g) previously suggested in Williams and Vinson.

In the present case the state apparently relied on statements from these cases and chose not to move for an extension of time under subsection (d)(2)(iv). As a consequence, the district court was forced to elevate its earlier dictum to a holding that subsection (g) does encompass the reversal of an order dismissing an indictment. While we have now clarified our rules to require an application for stay in the lower court, we are unwilling to say that the district court acted unreasonably in struggling to resolve the dilemma with which it was confronted, or that the state attorney was unreasonable in relying on- statements in the cases which then governed his territorial jurisdiction. Since the decisions of the district courts are final so long as they are not in conflict with or reversed by the decisions of this Court, there is no reason to disturb the decision below and it is, therefore, affirmed.

It is so ordered.

OVERTON, C. J., and SUNDBERG, HATCHETT and KARL, JJ., concur.

        . Tucker v. State, 344 So.2d 284 (Fla. 2d DCA 1977).

      .Art. V, § 3(b)(3), Fla.Const.

      . Fla.R.Crim.P. 3.191(g) (1976).

      . State v. Tucker, 301 So.2d 501 (Fla.2d DCA 1974).

      . 344 So.2d at 288. At about the same time, the district court also certified to us its decision in State v. Williams, 344 So.2d 311 (Fla.2d DCA 1977), which involved the applicability of the same two provisions of Rule 3.191 where the state un successfully appealed an unfavorable pre-trial order. In Williams, unlike the present case, the state had moved to toll the rule prior to taking the appeal, and the order from which review was sought was non-final in nature. Under those circumstances, we affirmed the district court’s treatment of the appeal as a petition for certiorari to review an interlocutory order — a matter specifically controlled by Rule 3.191(d)(2)(iv). State v. Williams, 350 So.2d 81 (Fla.1977). Because of the material differences, however, that decision has no direct bearing on the present controversy.

      . Here, as in the district court, the state argues that it is entitled to an automatic stay during ' the pendency of its appeal by virtue of Section 924.071(2), Florida Statutes (1973). Although the district courts have split on whether the automatic statutory stay has been superseded by the requirement of our rule that a stay pending the state’s appeal of pre-trial orders can only be obtained by motion in the trial court, compare State v. Smail, 346 So.2d 641 (Fla.2d DCA 1977), and State v. Pearce, 336 So.2d 1274 (Fla.1st DCA 1976), with Jenkins v. State, 349 So.2d 1192 (Fla.4th DCA 1977), State v. Cannon, 332 So.2d 127 (Fla.4th DCA 1976), and Mullin v. State, 307 So.2d 829 (Fla.3d DCA 1974), cert. denied, 317 So.2d 761 (Fla.1975), the court below correctly determined that the automatic statutory stay would not be applicable to appeals of pre-trial orders other than those specified in Section 924.-071(1). 344 So.2d at 286 n. 2. We have previously so held in Carroll and decline to reconsider that decision now. See also State v. Pearce, 336 So.2d 1274, 1277 (Fla.1st DCA 1976); Esperti v. State, 276 So.2d 58 (Fla.2d DCA 1973); Bryant v. Blount, 261 So.2d 847 (Fla.1st DCA), cert. denied, 267 So.2d 82 (Fla.1972).

      .The state suggests that the trial court’s denial of the motion for, discharge can be justified on the theory that Tucker necessitated the state’s appeal by his original motion to dismiss so that the delay should be attributed to him, relying on Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974), and State ex rel. Simonds v. Hall, 326 So.2d 443 (Fla.2d DCA 1976), among other decisions. For this proposition the state relies on language from State v. Glidewell, 311 So.2d 126 (Fla.2d DCA 1975), to the effect that where the defendant prevailed on a motion to dismiss and the trial court erroneously denied the state’s motion to toll the running of the speedy trial time pending its appeal of that ruling, the delay resulting from the state’s successful appeal “should not be charged against the state because it was caused by the defendant’s motion to dismiss.” Id. at 128. This rationale was suggested again by the same court in State v. Williams, 344 So.2d 311, 312 n. 3 (Fla.2d DCA 1977). We reject the notion that criminal defendants are to be penalized for moving to dismiss an indictment, and certainly not where the motion is sufficiently well-taken to elicit a favorable ruling from the trial court. The position urged by the state (and mentioned suggestively by the Second District) would place an accused on the horns of a dilemma by requiring him to jeopardize his speedy trial rights in order to challenge the state’s right to prosecute. The right to test the legality of the state’s procedure and the right to a speedy trial are independently guaranteed, and we cannot accept a construction of our rules that would force a defendant to risk one to obtain the other. Carroll v. State, 251 So.2d 866, 870 (Fla.1971). Cf. State ex rel. Johnson v. Edwards, 233 So.2d 393 (Fla.1970).

      . Fla.R.Crim.P. 3.191(d)(2)(iv), as amended in The Florida Bar: Re Florida Rules of Criminal Procedure, 343 So.2d 1247, 1256 (Fla.1977); see also Fla.R.App.P. 9.310(a) and (b)(2) (1977); State v. Williams, 350 So.2d 81, 82 n. 2 (Fla.1977). And see State v. Wells, 326 So.2d 175, 176 (Fla.1976).

      . Unless otherwise specifically provided, our court rules are prospective only in effect. Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896). ' '

      . 287 So.2d at 419 n. 3.

      . 294 So.2d at 419.

      . 311 So.2d at 129 (Grimes, J., concurring specially).