author: PEARSON, Judge.

text:
    Richard Lee MENARD and John W. Menard, Appellants, v. John Phillip O’MALLEY, etc., et al., Appellees.
    No. 75-165.
    District Court of Appeal of Florida, Third District.
    Feb. 10, 1976.
    Rehearing Denied March 3, 1976.

      Horton, Perse & Ginsberg, Miami, Nance & Cacciatore, Melbourne, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for appellees.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PEARSON, Judge.

The plaintiff, who is the appellant here, was struck by defendant’s truck when, as a pedestrian, he attempted to cross U.S. 1 in Monroe County. The cause was tried before a jury and the defendant received a verdict and judgment. The single question presented on appeal is whether the court erred in refusing to give one or more of defendant’s requested instructions. We hold that reversible error has been demonstrated because of the court’s refusal to instruct on a statute limiting the width of automobiles operated on the highways. This is so because the violation of the statute is evidence of negligence and the issue of the excessive width of defendant’s truck was presented by the evidence.

It is true that an appellate court will not set aside a verdict, where it is conformable to the law and the facts, merely because the trial court refused to give instructions that might properly be given. Maistrosky v. Harvey, Fla.App.1961, 133 So.2d 103. See also Crosby v. Stubblebine, Fla.App.1962, 142 So.2d 358, and Gavin v. Headley, Fla.App.1973, 272 So.2d 843. Nevertheless, it must be recognized that a party is entitled to have the jury instructed upon his theory of the case when the evidence viewed in a light favorable thereto substantially supports the theory, even though it may be subsequently controverted by evidence of the opposing party. See Williams v. Sauls, 1942, 151 Fla. 270, 9 So.2d 369; Luster v. Moore, Fla.1955, 78 So.2d 87; Hattaway v. Florida Power & Light Company, Fla.App.1961, 133 So.2d 101, and Sea Ledge Properties, Inc. v. Dodge, Fla.App. 1973, 283 So.2d 55.

We have reviewed all the evidence and while space and time do not permit what might be a useful discussion of the evidence, we find that the following facts appear: (1) Plaintiff was standing near the center line of the highway; (2) he was struck by the side-view mirror of defendant’s truck and was thrown into the extending bed of the truck; (3) Fla. Stat. § 316.196 provides, “Maximum width, height, length (1) The total outside width of any vehicle or the load thereon shall not exceed ninety-six inches . . .;” (4) the cab of the truck was 7 feet wide and the mirror on the truck extended out about 20 to 25 inches from the cab; and (5) plaintiff requested, in writing, an instruction on the statute. An instruction that violation of a statute is evidence of negligence was requested and denied. Under these circumstances revealed by the record, the refusal of plaintiff’s requested instructions is reversible error. See de Jesus v. Seaboard Coast Line Railroad Company, Fla. 1973, 281 So.2d 198, and Florida East Coast Railway Company v. Pollack, Fla.App.1963, 154 So.2d 346.

Having determined that reversible error appears, it is not necessary to discuss plaintiff’s remaining points on appeal ; but, because the case must be tried again, we have examined plaintiff’s requested instructions, the denial of which were assigned as error. We agree that the denial of the instruction based on Fla. Stat. § 316.030, “Careless driving,” was not error. In a like manner, we agree with the court’s denial of an instruction on Fla. Stat. § 316.183, “Unlawful speed” was not error. We think that the denial of the instruction on Fla.Stat. § 316.185, “Special hazards,” was error under the circumstances presented by the evidence.

Reversed and remanded.

      . There is testimony from one witness that plaintiff stepped backwards just before he was hit, but this is clearly a matter in defense of defendant’s claimed negligence and cannot affect the necessity for an instruction upon the claimed negligence.

      . At oral argument, it was suggested that the statute to which plaintiff made reference did not exist under that number at the time of the accident. Reference to the statute shows that the prior number of the section was § 317.761. This fact does not affect the validity of the request for instruction unless it can be shown that the trial judge was misled by plaintiff’s request.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    C. E. CAUDLE and Sarah Jo Caudle v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SYLACAUGA, a corporation.
    SC 1329.
    Supreme Court of Alabama.
    Feb. 5, 1976.
    As Corrected on Denial of Rehearing March 5, 1976.
    Jerry E. Stokes, Birmingham, for appellants.
    Bell & Lang, Sylacauga, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment of the Circuit Court of Talladega County, holding that a bill to redeem property foreclosed, was not timely filed. We reverse.

The Caudles purchased nine lots in a subdivision known as Center Point Acres in Talladega County. The lots were purchased over a period of time, extending from September 4, 1969 through January 6, 1971.

The property was bought subject to an existing mortgage from Whetstone Homes, Inc. to First Federal Savings and Loan Association. There were other lots in the subdivision subject to the First Federal mortgage.

On February 21, 1972, First Federal foreclosed on all of the lots in the subdivision. The sale was en masse rather than on a parcel by parcel basis. First Federal bid in the property for $72,183.64. Mr. Caudle did not attend the foreclosure sale, yet, near the time of the sale, he discussed the amount that would be necessary to clear the title to his lots. He was informed the cost would be $1,959.82 per lot. Upon further discussion, First Federal offered to quitclaim its interest in the lots for an amount equal to $1,959.82 per lot minus the consideration paid by the Cau-dles for the lots. The Caudles sought to regain the lots upon the basis of that offer, but learned that First Federal would not give him credit for anything more than the nominal consideration appearing in the deeds. The Caudles had evidence showing they had paid about $9,000.00 on all their lots.

On February 21, 1973, Mr. Caudle made another attempt to save at least two of the lots. The recited consideration in the deeds to the two lots totaled $1,500.00. The release price set by First Federal was $1,959.82 per lot minus the $1,500.00 recited consideration, leaving a.total of $2,419.-64 necessary to redeem those two lots. Mr. Caudle tendered that amount to First Federal in an effort to redeem. The tender was refused by First Federal unless the Caudles quitclaimed their interest in the remaining lots to First Federal. Thereafter, First Federal demanded the full release price of $1,959.82 per lot for redemption of the lots.

After learning that First Federal had permitted other owners of lots in the subdivision to redeem for $700.00 per lot, the Caudles wrote a letter, through their attorney, disaffirming the validity of the foreclosure sale. A suit filed in the U. S. District Court for the Northern District of Alabama was dismissed for lack of jurisdiction. On April 11, 1974, the Caudles filed suit in the Circuit Court of Talladega County. This was two years and six weeks after the foreclosure sale. The trial judge held that the Caudles had not shown any extraordinary circumstances to justify the bringing of the action when filed, and that “the Court is of the opinion that this action was not timely filed.”

The Caudles say the sole issue in this case is whether the action was timely filed in the Circuit Court of Talladega County. First Federal’s attorney at oral argument put the question another way. He asks, was there any justification for the Caudles waiting two years before attacking the foreclosure.

In W. T. Smith Lumber Co., where the mortgagor waited nine years before filing his bill, this court said:

“ * * * The statutory period of 2 years within which land may be redeemed furnishes, by analogy, the rule for ordinary cases of this character; and while, in the application of the doctrine of laches, courts of equity will be guided largely by the facts of each particular case, and they will * * * never come to the relief of him who, with a full knowledge of all of the facts, has acquiesced for such a period of time ‘as affords cogent evidence of a waiver and abandonment of the right.’ * * *«

In First National Bank of Opp v. Wise, 235 Ala. 124, 177 So. 636 (1937), this court stated:

“ ‘ “ * * * The whole theory of the limitation, therefore, rests on the presumption of ratification after the lapse of two years, in ‘ordinary cases.’ In extraordinary cases — cases involving peculiar circumstances, which rebut the presumption —it will not be indulged.” ’ (Italics supplied.)”

Cf. Dunn v. Ponceler, 235 Ala. 269, 178 So. 40 (1938).

We are of the opinion that holding the Caudles strictly within the 2-year period is unjust and unreasonable. We note that Mr. Caudle had conversations with First Federal and its lawyer regarding the right to redeem his property. He also offered to redeem two lots and made a tender, but was turned down by First Federal because he would not quitclaim the remaining seven lots to it. Mr. Caudle’s lawyer also wrote a letter to First Federal disaffirming the sale. Caudle tried, without results, to get several lawyers to take his case. There was a fruitless suit filed in the U. S. District Court. So, we cannot say Mr. Caudle had abandoned his right to redeem. It appears he was busy as a humming bird in summer trying to get back his property.

We are of the opinion the bill was timely filed. Under the circumstances of this case, the bill filed approximately six weeks after the 2-year period, is not sub-' ject to laches.

REVERSED AND REMANDED.

BLOODWORTH, ALMON and EM-BRY, JJ., concur.

HEFLIN, C. J., concurs in the result.

ON REHEARING

Opinion corrected.

APPLICATION FOR REHEARING OVERRULED.

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

      . We pretermit discussion of the change in the statutory period to redeem within one year as provided by § 727, Title 7. This was not raised in argument, and counsel for both parties requested that we not consider the change.


author: BOOKOUT, Judge.

text:
    Herman JONES v. STATE.
    8 Div. 639.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.
    Robert M. Shipman, Huntsville, for appellant.

      William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: thirty years imprisonment.

The appellant was indicted for the first degree murder of Patricia Smith “by shooting her with a pistol.” At trial, the jury found the appellant guilty of murder in the second degree and fixed punishment at thirty years imprisonment.

At the conclusion of the trial appellant gave notice of appeal and petitioned the court to be declared an indigent. After being so adjudged, appellant’s appointed counsel petitioned for a free transcript pursuant to Title 15, § 380(14) — § 380(25), Code of Alabama 1940, as amended 1963. The only trial testimony requested by the appellant for the record on appeal was that of one Linda Lemons.

Miss Lemons testified that she lived at 479 Binford Court and that she was the sister of the deceased, Patricia Smith. On the night of the shooting, she gave a party at her mother’s house, but did not see her sister there. She stated that after the party, she rode with two friends to the American Legion Club and arrived there between 11:00 and 11:30 P.M. She did not see her sister or the appellant until the Club was closing, at which time she encountered her sister at the front door. She then reentered the Club to tell her friends that she would ride home with her sister.

On returning to the front door, her sister was gone, so Miss Lemons walked outside and got in a friend’s car. She stated that at that point she heard a gun shot, but did not pay much attention until the appellant’s sister said, “he done killed her, he killed her.” Miss Lemons then got out of the car, ran over to see what had happened and found her sister lying motionless in the parking lot. The appellant was standing over her with a pistol in his right hand.

The witness said that as she attempted to revive her sister, the appellant told her that he would shoot her if she did not get her hands off her sister. At that point, she told him that he would have to shoot because she could not leave her sister. The witness stated that she took her sister’s shoes which were lying on the ground and got a ride to Binford Court. She saw the appellant again, later that night, in the admitting room at the hospital, but did not speak to him.

The witness did not know whether the appellant was married at the time of the shooting. She said that he had been married before, but was dating the deceased, who was separated from her husband. Miss Lemons concluded her direct testimony by saying that on the night in question, she was drinking at her mother’s house, but not at the American Legion Club.

On cross examination, Miss Lemons testified that she saw neither the shooting nor her sister fall. Miss Lemons said that she was upset on the night of her sister’s death and could not remember making a statement that night to a policeman to the effect that her sister and the appellant appeared to be fighting, and that she heard at least three shots before seeing her sister fall.

On redirect, Miss Lemons explained that she was celebrating her birthday on the night of the shooting and this was the reason for the party at her mother’s house.

The appellant’s written request for the affirmative charge was refused.

I

The venire was selected and a jury struck before Circuit Judge William D. Page, after which the jury entered the courtroom of Circuit Judge Thomas N. Younger, who heard opening arguments by both counsel and presided over the remainder of the trial of the cause. The appellant contends that the trial court erred to reversal in overruling his objection to such a procedure. We disagree.

The rule covering such a situation, and the rationale therefor, is found in 83 A.L.R.2d 1032, et seq., wherein it is stated at p. 1034:

“Most of the few cases which have considered the matter have taken the view that there may properly be a substitution of judges in the preliminary stages of the trial, before any evidence has been received, the theory apparently being that the rule against substitution is designed to insure that the judge who hears the testimony as to the facts also applies the law thereto.”

The appellant has failed to point out any prejudice to his cause as a result of the substitution of judges in his case. Supreme Court Rule 45, Title 7, appendix, Code of Alabama 1940.

The substitution occurred before opposing counsel had made their opening arguments to the jury and, therefore, a fortiori before any witnesses were called to testify. Of course, the voir dire examination of jurors did not elicit any information which could be used in the trial of appellant’s case. We are, therefore, of the opinion that ‘the substitution of trial judges prior to opening arguments and prior to taking testimony was in no way prejudicial to the appellant, and thus the trial court’s overruling of his objection, did not constitute reversible error.

II

Our review is limited to that evidence which appears in the record. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831, cert. denied 291 Ala. 782, 280 So.2d 836 (1973); Lewis v. State, 42 Ala.App. 166, 157 So.2d 38 (1963). Where there is evidence which, if believed by the jury, is sufficient in its inferences to overcome prima facie the presumption of innocence, this Court has no right to disturb the verdict. Stowe v. State, 53 Ala.App. 118, 298 So.2d 48 (1974). Here, the appellant chose a portion of the evidence to be reviewed by this Court. We find that the evidence presented, though circumstantial, was sufficient to sustain the verdict. Tanner v. State, 291 Ala. 70, 277 So.2d 885; Hollenquest v. State, 290 Ala. 146, 274 So.2d 613 (both 1973); James v. State, 22 Ala.App. 183, 113 So. 648 (1927).

Ill

The trial court’s refusal of instructions which were affirmative in nature and thus not applicable under the evidence; which were incorrect statements of applicable law; which were abstract in nature; and which were fully and substantially covered in the trial court’s oral charge, does not constitute error. Title 7, § 273, Code of Alabama 1940, Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Smith v. State, 56 Ala.App. 109, 319 So.2d 729 (1975).

Affirmed.

All the Judges concur.


author: MERRILL, Justice.

text:
    In re Herman JONES v. STATE of Alabama. Ex parte Herman Jones.
    SC 1680.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Robert M. Shipman, Huntsville, for petitioner.
    None for the State.
   MERRILL, Justice.

Petition of Herman Jones for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jones v. State, 57 Ala.App. -, 327 So.2d 913.

Writ denied.

HEFLIN, C. J, and MADDOX, JONES and SHORES, JJ., concur.


author: TYSON, Judge. CATES, Presiding Judge

text:
    Jesse William BRYSON v. STATE.
    7 Div. 371.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.
    Robert G. Wilson, David A. Rams, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant, Jesse William Bryson, Edward Lee Moss, and Robert Dennis Browning, Junior, with the robbery of Clarence Chestnut, Junior, by taking some $400.00 in currency from him. The jury found the appellant guilty as charged and fixed punishment at forty years imprisonment. The trial court then entered judgment in accordance with this verdict.

Clarence Chestnut, Jr., testified that he lived in Gaylesville, Alabama, and conducted a general merchandise store in partnership with his brother, Emory Chestnut, in Gaylesville. He testified that ábout 6:00 in the evening of February 8, 1972, the appellant, Jesse William Bryson, together with two companions, Edward Lee Moss and Robert Dennis Browning, came into the store, that Mpss and Browning went into the back of the store and gathered up a few groceries. He stated that the two men asked him to slice some cheese from the hoop cheese in the dairy case. He stated that the appellant stayed in the front of the store and got a soft drink. He stated that his mother, age seventy, was at the cash register at the time the men came into the store. He stated about this time an employee of his, Mr. William Comer, came back into the store, and as he did so, Browning pointed a pistol at them, marched all of them near the cash register, and said, “Give me the money, let me have your money . . . sack it up, sack it up.” He stated that a man named Billy Black had come into the store and that the appellant pushed him toward the back of the store. He testified that the men then took over $400.00 from the cash register and fled in a Dodge automobile with a Great Lakes tag on it. He testified that the three men were caught that night in Sum-merville, near the Georgia line, and that he saw them. Mr. Chestnut made a positive in-court identification of the appellant.

William Comer testified that on February 8, 1972, he worked at the general merchandise store belonging to Clarence and Emory Chestnut in Gaylesville, Alabama. He testified that he had worked most of that day and returned to his home, then went back to the store shortly before 6:00 in the evening. He testified that soon after that, the appellant and two other men came into the store, and he noticed the other two men walk to the rear and start gathering some groceries. He stated that the appellant stayed near the drink box at the front of the store and made a casual comment to him about the weather. A few minutes thereafter Browning pulled a gun and stated, “Give me the money, sack it all up.” He stated that after the men took the money from the cash register they told them to “lay down in the floor,” and that the' men fled in an old Dodge automobile. He stated that he got a good look at the three men and made a positive in-court identification of the appellant.

The appellant presented the testimony of his sister, Mrs. Lucille Self, who lived at 103 West Waterworks Street in Dalton, Georgia. She testified that her brother came to her home in the month of January, 1972, and that his hair was red. She stated that she assisted him in putting black dye on his hair, and that this was during the middle of January, because she remembered her son leaving for Michigan about the first of February of that year, and that this occurred about two weeks prior to her son’s leaving. She testified that she drove her brother to the bus station in Chattanooga, Tennessee, in late January, 1972.

I

The appellant contends that the State was improperly allowed to cross examine appellant’s sister, Mrs. Self at trial, pertaining to an escape from the “Georgia road gang,” and calls attention to the following [R. pp. 36]:

“BY MR. BLACK:
“Q. Now, at the time you said you dyed your brother’s hair and sideburns in January, 1972, how many days was that after he escaped from the Georgia penitentiary ?
“MR. WILSON: Objection, Your Hon- or. There is no testimony ....
“MR. BLACK: We expect there will be.
“A. I really don’t know.
“COURT: Overruled.
“Q. How many days was it after he escaped from the Georgia road gang.
“A. I don’t know.
“Q. Well, he was in a Georgia penitentiary and he escaped, didn’t he ?
“MR. RAINS: I object, Your Honor.
“COURT: Overruled.
“Q. That is correct, isn’t it ?
“A. That is what I was told.
“Q. Well, he told you he escaped, didn’t he?
“A. Well, I was pretty sure it was right.
“Q. He did tell you he escaped and wanted you to help hide him, didn’t he? That’s true, isn’t it?
“A. I wasn’t hiding him. •
“Q. Well, you helped him put dye on his hair?
“A. I helped put dye on his hair.
“Q. You helped put dye on his hair and carried him to Chattanooga, is that right ?
“A. Yes, because he asked me to.
“Q. He asked you to ?
“A. Yes.
“Q. And you say you are his sister ?
“A. Right.
“MR. BLACK: That’s all.
“A. That’s right.
“COURT: Anything further ?
“MR. RAINS: No sir.
“COURT: You may come down.
“MR. WILSON: The defense has nothing further, Your Honor, we rest.”

The appellant first injected the matter of his dying his hair, and his leaving on a bus into the trial, hence, we are of the opinion that the trial court properly allowed his sister, Mrs. Self, to be cross-examined on this. Since the appellant first injected this matter into evidence, such became a proper basis for cross-examination by the District Attorney. McClendon v. State, 54 Ala. App. 327, 307 So.2d 723, and authorities therein cited.

II

At the conclusion of the trial court’s oral charge, the appellant announced, “No exceptions.” The trial judge then gave six of the written charges. The remaining refused charges were either covered by the trial court’s oral charge and the given charges, or were abstract, not properly predicated on the evidence in this case, were misleading, or were incorrect statements of the applicable legal principles; hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.

CATES, P. J., concurs with opinion.

CATES, Presiding Judge

(concurring specially).

In brief appellant complains of the District Attorney’s asking Mrs. Self how many days was it after appellant’s escape from a Georgia prison that she dyed his hair. I consider that prejudicial and irrelevant in a case where the defendant has chosen not to testify.

However, the District Attorney offered to connect up the sought for answer with further proof. Such further proof was not tendered. In this posture the defendant should have made a motion to exclude the disconnected evidence. McElroy, Evid. (2nd ed.) §426.01(6).


author: BLOOD WORTH, Justice. JONES, Justice ALMON, Justice

text:
    In re Jesse William BRYSON v. STATE of Alabama. Ex parte Jesse William Bryson.
    SC 1611.
    Supreme Court of Alabama.
    Feb. 27, 1976.
    Scruggs, Rains & Wilson, Fort Payne, for petitioner.
   BLOOD WORTH, Justice.

Petition of Jesse William Bryson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Bryson v. State, 57 Ala.App.-, 327 So.2d 916.

WRIT DENIED.

MERRILL, FAULKNER, EMBRY and MADDOX, JJ., concur.

HEFLIN, C. J., and JONES, ALMON, and SHORES, JJ., dissent.

JONES, Justice

(dissenting):

I would grant the writ to review the judgment of the Court of Criminal Appeals affirming the defendant’s conviction. The only issue under consideration is the trial Court’s overruling of defendant’s objection to the following question:

“Now, at the time you said you dyed your brother’s hair and sideburns in January, 1972, how many days was that after he escaped from the Georgia penitentiary?”

The defendant did not take the stand, invoking the Brasher rule (Brasher v. State, 249 Ala. 96, 30 So.2d 31 (1947) ), which prohibits proof of another offense. This rule recognizes in effect that virtually nothing can be more prejudicial to the defendant’s right to a fair trial for one offense than proof of another offense for which he is not being tried. Defendant, of course, takes the risk of this prejudicial evidence when he takes the stand to testify in his own behalf; but defendant’s exercise of his Constitutional prerogative against self incrimination would be rendered futile if the State, through other witnesses, could prove his commission of other offenses. In practical effect, if prejudicial error could be graded on a scale from 1 to 10, what happened here, in my opinion, would be scored 10.

Given the defendant’s failure to testify, there are only two possibilities for the proper admission of the evidence elicited by the challenged question:

1) Was it admissible except for some missing link such as a required predicate which was subject to being connected up later ?
2) Although otherwise illegal, was the elicited evidence the completion of partial evidence introduced by the defendant of a conversation or transaction?

Connecting Up

The “connecting up” doctrine has no field of operation where the only offered connection is the proof of the very element (the other offense) which is inadmissible. Otherwise stated, unless the evidence elicited is admissible, except for the missing link which is offered to be supplied later, the offer to connect up cannot render the evidence conditionally admissible. The only evidence offered by the State by way of connecting' up was, “We expect there will be [evidence that defendant escaped from a Georgia prison]” — the very evidence that is inadmissible in the first instance. See 1 McElroy, The Law of Evidence in Alabama, § 13.01 (2d Ed., 1959).

Completion of Partial Evidence

The rule of Logan v. State, 291 Ala. 497, 282 So.2d 898 (1973), which allows one party to introduce otherwise illegal evidence to complete partial evidence introduced by his opponent of a conversation or. transaction, is inapplicable to this case, because the defendant’s alleged escape from the Georgia penitentiary is not part of the same transaction as the defendant’s sister’s cutting and dying the defendant’s hair. French v. State, 25 Ala.App. 53, 141 So. 713, cert. denied, 225 Ala. 8, 141 So. 717 (1932), held that the same transaction rule “does not apply to particulars of former transactions not constituting a part of the res gestae, or tending to shed light on the issues.”

I believe that the case of Roberson v. State, 233 Ala. 442, 172 So. 250 (1937), controls this case. The Roberson case, which excluded testimony on the ground that the defendant’s proffered testimony did not concern the same transaction as the State’s testimony, drew a distinction between cause and effect. In Roberson, the State’s witness testified to the quarrel between a murder defendant and the deceased. The defendant then tried to introduce testimony that the quarrel immediately followed and resulted from the decedent’s allowing his cattle to trample the defendant’s crops. The Court held that the alleged trespass of livestock on the defendant’s crops leading to the quarrel was a separate transaction from the quarrel even though it resulted in the quarrel.

The case before us presents an analogy to Roberson, in that the defendant’s alleged escape from the Georgia penitentiary may have been the cause of his sister’s cutting and dying his hair, but it was not the same transaction and, therefore, does not come within the Logan rule.

Furthermore, without reviewing the entire text of the defendant’s sister’s testimony, it is not possible to tell whether the defendant’s sister’s cutting and dying the defendant’s hair was even causally related to the alleged escape.

I would grant the writ.

HEFLIN, C. J., and SHORES, J., concur.

ALMON, Justice

(dissenting):

I would grant the writ for the reasons I stated in Paul v. State, 47 Ala.App. 115, 251 So.2d 246.

      . This is not to infer, of course, that a defendant in a criminal case, by electing to testify in his own behalf, necessarily waives all 5th Amendment rights against self incrimination.


text:
    Robert Spencer BURNS v. STATE.
    8 Div. 660.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 1975.
    Rehearing Denied Jan. 20, 1976.

      William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Defendant-appellant was charged in an indictment with the unlawful possession of “Marihuana, one of the controlled substances enumerated in Title 22, Section (258) (29) (D) (Schedule 1), known as the Alabama Uniform Controlled Substances Act.” A jury found him guilty and also found that “he did not possess it just for the purpose of his personal use only.” After a pre-sentence investigation and obviously careful consideration by the court of defendant’s application for probation, the court sentenced him to six years imprisonment in the penitentiary and denied probation.

The indictment included three other defendants, but appellant-defendant was tried separately.

On Sunday morning, September IS, 1974, six law enforcement officers, fortified with a studiously prepared and well supported search warrant, went to the home of defendant, a trailer in a trailer park in Lauderdale County, and assiduously searched the two bedrooms and other parts of the trailer for “Marijuana, Cocaine and Heroin” as authorized by the search warrant. In the course of the search, they opened two suitcases in the bedroom of defendant and his wife. In one suitcase they found (chiefly impregnated in the lining thereof) a leafy-type substance that a competent agent of the Alabama Department of Toxicology and Criminal Investigation testified was “marijuana.” One witness stated that the amount of marihuana found was approximately a spoonful; according to the testimony of the toxicologist, it weighed .57 of a gram or approximately l/60th of an ounce. In the other suitcase was the sum of $10,996.00 in United States currency. In distinguishing one from the other, we will refer to one as the marihuana suitcase and the other as the money suitcase.

In the trailer at the time of the search were appellant, his wife and another couple who were married between the time of the search and the trial. The four were indicted in the same indictment.

Defendant did not testify, but his wife and the other female occupant of the trailer testified in his behalf. They said that about 4:30 or 5:00 P.M. the afternoon before the search, a man by the name of Bill Wilson, accompanied by two other men, came to the trailer and left the suitcases with appellant; that Mr. Wilson stated that they did not have room for the suitcases in the two-passenger automobile they were traveling in at the time and that he would return and get them the next day. The particular Bill Wilson was not living at the time of trial. He had been killed “down Cypress Creek,” an historic watercourse in Lauderdale County.

Aside from that part of the transcript of testimony that was admitted in evidence for consideration by the jury, the record is replete with indications that appellant was in the illegal drug business. Such information is to be found particularly in the evidence taken voir dire out of the presence of the jury as to the application for and the issuance of the search warrant, in the statements made to the trial court, even of appellant himself, on his application for probation, and in other portions of the record that do not form a part of the transcript of the testimony presented to the jury. However, we cannot go beyond the testimony presented to the jury to determine whether there is ample evidence to support the verdict, and for that purpose we limit our consideration to the evidence before the jury. In summary, we are persuaded that the jury was warranted in finding appellant guilty of possession of the prohibited substance and that whatever truth there may have been in the testimony of defendant’s wife and the other woman as to the visit by Bill Wilson, it was so transparent that a jury could see through it to .appellant’s guilt. In this connection, we note that the evidence before the jury disclosed that the other female occupant of the trailer wrote appellant while he was in jail “I’m doing this for you, Theresa, & David, don’t worry . . . I’ll claim for us.” In addition, it should be noted that there was evidence that appellant claimed the money or some of the money in the money suitcase.

On the trial, appellant’s attorney strenuously objected to the introduction of evidence relative to money in the money suitcase. He contended that it was not relevant to the charge of possession of marihuana and that it was prejudicial. That it was injurious to defendant, we have no doubt, but we also have no doubt that it was relevant and admissible testimony. According to defendant’s witnesses, the two suitcases were brought to the trailer at the same time by the same person. The relation between the practically empty marihuana suitcase and • the substantially full, in one sense, money suitcase is obvious. Testimony as to the money in one suitcase was relevant to the issue of whether any possession by defendant of marihuana in the other suitcase was for defendant’s personal use only. Funches v. State, 53 Ala. App. 330, 299 So.2d 771.

The problem presented by the possession of such a minute amount of marihuana as was found in one of the suitcases was foreseen by Presiding Judge Cates in Corbin v. State, 55 Ala.App. 33, 312 So.2d 604, wherein he stated:

“We are not prepared to say that any given quantity of marihuana possessed marks a line between possession for personal use and possession for such other purpose as sale, barter or gift. . . . ”

We can well see that it could hardly be reasonably argued that appellant planned to resell any of the remnants of the marihuana in the marihuana suitcase. On the other hand, we can see that it could be reasonably contended that he had recently possessed, and had been a party to the sale of, marihuana of which the gleanings in the suitcase were once a part. The respective contentions of the attorneys for the parties in their arguments to the jury are not shown by the record. Under all the circumstances shown by the record, we are convinced that the jury was justified in finding the defendant guilty of possession of marihuana and that such possession was not for his personal use only.

At the conclusion of the court’s oral charge, the following occurred:

“MR. CLEERE: ALL RIGHT. THE DEFENDANT FURTHER OBJECTS TO THE COURT’S ORAL CHARGE TO THE JURY TO THE EFFECT THAT IT WAS NOT NECESSARY FOR THE STATE TO PROVE THAT THE SUITCASE IN QUESTION BELONGED TO THE DEFENDANT, AND FURTHER THAT IF THE DEFENDANT HAD SOME MATTER OF CONTROL OVER THE SUITCASE IN QUESTION, HE WOULD BE IN POSSESSION OF THE SAME. WE OBJECT TO THAT CHARGE AS, IN EFFECT, THE COURT DIRECTING THE JURY’S VERDICT.
“AND ALSO THE FACT THAT THE COURT FAILED TO CHARGE THAT THE STATE DID HAVE A BURDEN TO SHOW GUILTY SCIENTER OR KNOWLEDGE IN THE COMMISSION OF THE OFFENSE AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA.”

The following excerpt is taken from the court’s oral charge:

“Now, Gentlemen of the Jury, marijuana is one of the substances listed in the Alabama Controlled Substances Act, which Act makes it illegal to possess marijuana. As to the amount of marijuana presented in the evidence, that is not necessary — it is not necessary that the State bring into Court or prove possession of any definite amount. Any amount is against the law. So, the amount seized is not in and of itself the determining factor. The factor is whether or not he had possession. It is not necessary for the State to prove that the suitcase belonged to the Defendant, and I shall now define to you some elements of possession and what possession means under the law.
“Possession means having personal charge of a thing, — Or having manucaption of it, having your hands on it, but it is not necessary under the law for a person to have had his hands on something to be in possession of it. If the person exercises some right of ownership or if he exercises some right of control over the suitcase in question, then the Defendant would have been in possession of it. The possession prohibited under the law includes any possession or physical dominion over the marijuana of however brief duration and in whatever capacity the person may have been exercising possession if it be for the use or enjoyment of himself or any other person then — and is not merely for the purpose of inspection or destruction, then that is possession which is prohibited by the law.
“In other words, Gentlemen of the Jury, you look at possession in this light —did the Defendant take the suitcase and did it have marijuana in it and was he holding it and keeping it for some other person and exercising control over it in his bedroom or wherever it was. If he was, he would have had possession of the substance. So, those are definitions of possession which the law prohibits. More than one person can be in possession of a substance at the same time. If it is there and a person is exercising dominion over it and control over it, and he is not keeping it just for destruction or inspection alone, then that is possession which the law prohibits.”

Although the Alabama Rules of Civil Procedure do not apply to criminal cases, Rule 51 thereof, along with Rule 51 F.R.C.P., has wrought a great change in practice of attorneys in endeavoring to bring to the attention of the trial judge what they consider as errors in the court’s instructions. In both Rules, the action is denominated “objection.” Previously in Alabama it was almost uniformly denominated “exception.” It was said in American Surety Co. of New York v. Hooker, 36 AlaApp. 39, 58 So.2d 469, 478:

“It has been held that an ‘objection’ to the oral charge is not equivalent to an ‘exception.’ Roberson v. State, 25 Ala. App. 270, 144 So. 371; Garrett v. State, 33 Ala.App. 168, 31 So.2d 151; Buffalow v. State, 34 Ala.App. 418, 41 So.2d 417; Horn v. State, 23 Ala.App. 273, 124 So. 125.”

An example of the transition or evolution taking place is found in Bradley v. Jones, 282 Ala. 331, 211 So.2d 465, wherein “objections” and “exceptions” are treated synonymously. In the light of modern practice and enlightenment of judges and attorneys generally on the subject, we cannot hold attorneys to the distinction between an “exception” and an “objection” that prevailed years ago. Nor did the trial judge attempt to so hold defendant’s counsel.

The objections of defendant’s counsel were, as to the point now considered, in two parts. One was as to what the court had said; the other was as to what the court had not said. As to the latter, it has been often held that to properly raise the point, defendant should have made a written request that the court instruct the jury as to the particular principle of law not covered by .the charge. Gray v. State, 52 Ala.App. 481, 294 So.2d 448; Smith v. State, 53 Ala.App. 657, 303 So.2d 157.

The principle omitted from the court’s oral charge is an extraordinarily important one. In Corbin v. State, supra, it was stated:

“In Rueffert, [Rueffert v. State] 46 Ala.App. 36, 237 So.2d 520, our late Presiding Judge Price wrote as follows :
‘The well established rule in cases involving possession of prohibited liquors is that where actual manucaption is not. shown and constructive possession is relied upon, the state must show beyond a reasonable doubt, in addition to the constructive possession, that the accused knew of the presence of the prohibited beverages. Grimes v. State, 38 Ala.App. 94, 76 So.2d 684; Davis v. State, 40 Ala.App. 609, 119 So.2d 236. The rules of evidence in a prosecution for possession of marijuana are the same as those applicable in every other criminal case.’ ”

The jury and the defendant did not have the benefit of such well established principles of law. Furthermore, it seems to us that the jury could well have responded contrary to that principle in the light of what the court stated as to constructive possession. Even according to the evidence for the defense, defendant did “take the suitcase” which had “marijuana in it and was . . . holding it and keeping it for some other purpose and exercising control over it in his bedroom.” According to the charge he thereby “would have had possession of the substance.” No issue existed between the parties as to the possession, actual or constructive, of the suitcase in which the marihuana was found. The issue between the parties was as to the possession of the contents of the suitcase. If the charge had contained the principle to which defendant would have been entitled if he had requested in writing instruction as to such principle, it is possihle that in considering the instruction actually given in connection with an instruction that would have been included in the instruction requested, the jury could have reached the correct decision consistent with applicable •principles of law. Without an instruction as to the necessity for proof of knowledge on the part of the defendant of the presence of the prohibited substance, the quoted portions of the oral charge as to possession are not only inaccurate but also were highly injurious to defendant.

A more difficult question, in our opinion, is presented as to the sufficiency of the objections made by defendant’s counsel. The method of making an objection or taking an exception to a portion of the court’s oral charge is that the objector or exceptor should “select and recite what the court said, or state the substance of what the court said, and thus specifically bring to the attention of the trial court” and the appellate court the “matter and ruling of which complaint is made.” Pollard v. Rogers, 234 Ala. 92, 173 So. 881; Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d 228; Ward v. State, 52 Ala.App. 392, 293 So.2d 307.

The question naturally arises often whether the portion of the charge to which an exception is taken is in substance brought to the attention of the court. We do not find precise authority to follow on the point.

Mindful of the primary purpose of an objection or exception to a part of the court’s oral charge, to “bring to attention to the trial court” the portion considered erroneous so that the trial court may in the interest of justice consider the question and correct its error, if any, in the interest of a true verdict by the jury, we believe that both portions of defendant’s quoted objections should be considered together in view of their close relation. By pointing out that the trial court had not charged the jury as to the necessity for knowledge of the presence of the controlled substance, defendant was emphasizing an incorrect portion of the court’s charge in which the omitted principle could have been supplied, but without which the jury was erroneously instructed. As to this, defendant did more than was done by defendant in Pinkerton v. State, 246 Ála. 540, 22 So.2d 113, wherein it was held that it was error to reverse for the trial court to’ instruct a jury that false testimony of a witness authorized the jury in its discretion to disregard the remainder of his testimony, in view of the rule that the jury would not be authorized to do so unless the testimony was willfully false as to a material matter. The court said:

“To hold it the duty of counsel for the defendant under the circumstances to have requested a charge in writing correctly stating the applicable rule of law would have placed upon him an unnecessary burden, in view of the well-understood rule that the oral charge prevails over written instructions. Furthermore, no such duty rests upon counsel, as he performed his full duty in calling the attention of the court to the error in the oral charge by duly reserving an exception thereto. We think it was not a matter as to which explanatory charges would be required, and reversible error is not to be avoided in the manner pointed out in the opinion of the Court of Appeals.”

As previously indicated the Alabama Rules of Civil Procedure are not applicable, but in the absence of specific authority on the point, the soundness of Rule 51 as to the question here presented justifies a consideration of the Rule. By it, disadvantages to the trial court of the automatic exception rule of Title 7, Section 818, of the Code of Alabama 1940 and disadvantages to the parties or their attorneys of “countervailing technical requirements” were eliminated. Lyons, Alabama Practice, Rules of Civil Procedure Annotated, Rule 51, Committee Comments. According to Rule 51 “the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge” is subject to an objection and “submission of additional explanatory instructions shall not be required unless requested by the court.”

In some cases in which exceptions to portions to the oral charge were held not to have measured up to the requirements of definiteness and that the trial court should not be reversed by reason of the incorrectness of such portions, they were as to tangential or peripheral phases of the case. In this case, it is clear that defendant’s grievance, whether expressed in the most accurate language possible or not, was directed at the heart of the case. From the beginning to the end, the case revolved around the hub of knowledge vel non by defendant of the presence of marihuana in the marihuana suitcase, of its presence in the amount found, or of its presence in a larger amount sometime while the suitcase was in the possession or custody of defendant. The prosecution in its entirety was centered upon the alleged possession of such marihuana alone. Defendant was entitled to an explicit instruction from the court that in the absence of his knowledge of the presence thereof defendant was not guilty. The instruction as to possession fell short of that to which defendant was entitled. It had the effect of instructing the jury that a guilty verdict was warranted even though defendant had no knowledge of the presence of marihuana.

We are greatly appreciative of the many other extraordinarily troublesome features of this case and of the skill with which the experienced and able trial judge steered the case unerringly through them. With the evidence before us in the record, but not a part of the transcript of the testimony presented to the jury, pointing persuasively to guilt of the defendant as an active participant in iniquitous illegal traffic in drugs, we regret the necessity for a reversal for the error indicated.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the court. The judgment below is hereby

Reversed and remanded.

All the Judges concur, except DeCARLO, J., who dissents.

      . Other than in the indictment, the substance is spelled throughout the record with a “j” instead of an “h.” It is clear, however, that no question of difference in composition of the substance is involved. We will follow hereinafter the spelling of the statute.


author: EMBRY, Justice. BLOODWORTH, Justice,

text:
    In re STATE of Alabama v. Robert Spencer BURNS. Ex parte State of Alabama.
    SC 1670.
    Supreme Court of Alabama.
    March 5, 1976.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gei;., for the State.
   EMBRY, Justice.

WRIT DENIED.

HEFLIN, C. J., and ALMON, J., concur.

BLOODWORTH and FAULKNER, JJ., concur specially.

BLOODWORTH, Justice,

(concurring specially.)

I concur to deny the writ because of the erroneous instructions given by the trial judge.

I must respectfully disagree with the opinion of the Court of Criminal Appeals insofar as it seems to imply that failure to instruct on “guilty scienter” constituted reversible error. The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge’s instructions are not as full as defendant’s counsel desires, the remedy is to request instructions explaining defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955).

Nor, are the references in the Court of Criminal Appeals’ opinion to the Alabama Rules of Civil Procedure apt. This Court specifically provided in Rule 1, A.R.C.P., that these rules apply only to civil cases. Therefore, any reference to Rule 51 is ill advised and misleading to bench and bar, in my judgment.

FAULKNER, J., concurs.


author: PER CURIAM. ADKINS, Chief Justice and ROBERTS, Justice BOYD, Justice SUNDBERG, Justice HATCHETT, Justice

text:
    Larry THOMPSON, a/k/a Mark A. Lewis, Appellant, v. STATE of Florida, Appellee.
    No. 45107.
    Supreme Court of Florida.
    Jan. 21, 1976.
    Rehearing Denied March 23, 1976.

      Richard L. Jorandby, Public Defender, and Kenneth J. Scherer and H. Joseph McGuire, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

The defendant, Larry Thompson, a/k/a Mark Anthony Lewis, 17 years of age, was indicted for first degree murder of Richard Dean. He was tried before a jury and found guilty as charged. On the same day, the jury was recalled to consider matters of aggravation and mitigation and to render an advisory opinion as to the sentence to be imposed. The jury recommended that defendant be sentenced to life imprisonment by a 12-0 vote. The trial judge expressed his appreciation to the jury for its service and recommendations as to the sentence. He then proceeded to dictate into the record his reasons for not following the jury’s recommendation of life imprisonment and imposed a sentence of death in the electric chair.

The evidence presented at the trial that the defendant and one James Pinkney entered a Royal Castle and ordered food. Pinkney testified defendant told him to stick around “that something was going to happen”. That when Richard Dean, Manager of the Royal Castle, went to the back, defendant jumped over the counter and grabbed something, at which time Dean returned. The defendant rushed Dean, and they both struggled into the back. The tussling continued back to the front, and at this time, Dean had a knife, and defendant attempted to hit Dean with a stool. About this time, Dean ran outside with the defendant in pursuit. The defendant, according to Pinkney, again made contact with Dean and somehow got the knife away from Dean and while still struggling stabbed Dean several times. Dean fell with the knife in his chest. After the stabbing, Pinkney testified, defendant want back inside, grabbed the bills from the cash register and ran away. Shortly thereafter, he saw the defendant in a phone booth counting the money, and defendant gave him $20.00.

The only other witness was the defendant, who made two statements to the authorities and testified in his own defense at the trial. The defendant’s statements and his testimony at the trial, as to his version of the events leading up to the death of Dean, were essentially the same. Defendant’s testimony was that he and Pinkney met in front of the Royal Castle, and Pink-ney wanted to go in and rob the Royal Castle, by physically taking the money from Dean, but defendant suggested he could take the money from the cash register while Dean was in the back without his knowing about it. There was no testimony that either Pinkney or defendant was armed with a weapon of any kind. Both entered the restaurant, and when Dean went to the back, defendant told Pinkney to go outside and watch while he jumped over the counter. When he was about to get to the cash register, Dean returned and started hollering at him to get out and that he was going to call the police. Defendant testified that Dean picked up a butcher knife and attacked him, that he started to run, but Dean grabbed him, that during the struggle inside the restaurant he tried to throw a cup at him, grabbed at a butcher knife,- but dropped it and finally picked up a stool and threw it at Dean. Dean then ran out the door and turned left, that he ran out behind him and turned right, and when Dean saw he was not chasing him, he turned around and started chasing the defendant. Defendant testified that he slipped and fell, and Dean, with the knife, jumped on him, and they started fighting again. That he tried to hold Dean’s hand to keep him from stabbing him, and he somehow got the knife away from Dean. Dean started choking him, and while Dean was choking him, he stabbed him, he believes, twice. After the stabbing, the defendant said he went back into the restaurant and discovered the money and Pink-ney both gone.

The appellant has raised six points on appeal. The first point relates to admitting one of the confessions made by the defendant. Upon reviewing the record, it is apparent that this alleged confession was primarily a self-serving statement and was similar to another unquestioned statement, as well as defendant’s testimony at the trial. The death of the deceased by defendant was never in question, only the manner in which it occurred was in issue. The motion to suppress was fully heard by the court and denied, and if error was harmless.

Appellant claims the court erred in instructing the jury on felony murder. Upon reviewing the evidence, we find there was sufficient evidence for the jury to find the homicide to have been committed in the commission or the attempted commission of a robbery and instructing the jury on felony murder was not error. The remaining four points raised by appellant has to do with the court’s sentencing the appellant to death.

Challenge is again made as to the constitutionality of the imposition of the death sentence, pursuant to Sections 775.-082, 782.04 and 921.141, Florida Statutes. This court has previously ruled the imposition of the death penalty, in accordance with the foregoing statutes, as not being in violation of either the Florida or United States Constitution, and we can find no reasons to depart from our earlier ruling in State v. Dixon, 283 So.2d 1 (Fla.1973).

The court did not request a presentence investigation prior to sentencing appellant. Such failure is urged by appellant as being in violation of Rule 3.710, Florida Rules of Criminal Procedure, which states:

“Presentence Report.
In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.”

The Committee Note of Rule 3.710 gives a fair indication of the meaning and scope of the Rule and reads as follows:

“1972 Committee Note:
The rule provides for the utilization of a pre-sentence report as part of the sentencing process. While use of the report is discretionary in all cases, it is mandatory in two instances, the sentencing of a first felony offender and of a defendant under 18 years of age. Of course, no report is necessary where the specific sentence is mandatory, e. g., the sentence of death or life imprisonment in a verdict of first degree murder.” Committee Note, Rule 3.710, Rules of Criminal Procedure.

Thus we hold that once the jury returns a verdict of first degree murder, the trial court is exempt from the mandatory presentence requirements of Rule 3.710, Rules of Criminal Procedure.

Appellant alleges that the trial court failed to comply with the requirements of Section 921.141, Florida Statutes, in that it failed to make specific written findings of fact concerning aggravating or mitigating circumstances on which the court’s death sentence was based. In this case, the trial court, after receiving the advisory opinion from the jury and prior to sentencing appellant, dictated into the record his findings of fact for imposing a sentence of death. Such dictation, when transcribed, becomes a finding of fact in writing and provides the opportunity for meaningful review, as required by 921.141, Florida Statutes.

The most important point raised by the appellant is whether the trial court erred in sentencing appellant to death.

In this case, we have a 17-year-old male who entered, unarmed, into the restaurant for the purpose of illegally getting money. He had no prior criminal record. The evidence is conflicting as to whether the appellant entered the restaurant with the intent to rob or only with the intent to take the cash when the manager was in the back. As a result of appellant entering the restaurant, a fight ensued when the deceased caught appellant in his attempt to take the money from the register. The deceased was armed with a knife, and after tussling around the restaurant, deceased ran outside still holding the knife. Appellant ran out behind him. Upon leaving the premises, the testimony is conflicting. Pinkney, who had turned state’s evidence, testified the appellant ran after deceased, that deceased swung at appellant with the knife, but appellant grabbed deceased, took the knife away from him and while holding him stabbed him several times. Appellant’s version was that he ran out behind deceased and turned the other direction and when deceased saw him running away turned and ran after him. While running away, he slipped and fell, and deceased jumped on him and tried to stab him. He says he somehow got the knife away and while deceased was choking him stabbed deceased at least twice.

The jury had sufficient evidence, based on the testimony, to justify a verdict of murder in the first degree. However, when the jury deliberated on its advisory opinion after being fully charged to consider all of the aggravating and mitigating circumstances required by Section 921.141, Florida Statutes, they returned a unanimous verdict recommending a sentence of life imprisonment. The jury, in effect, found the mitigating circumstances were such that the death penalty would not be proper.

This court is well aware that the recommendation of sentence by the jury is only advisory and is not binding on the trial court. However, the advisory opinion of the jury must be given serious consideration, or there would be no reason for the legislature to have placed such a requirement in the statute. It stands to reason that the trial court must express more concise and particular reasons, based on evidence which cannot be reasonably interpreted to favor mitigation, to overrule a jury’s advisory opinion of life imprisonment and enter a sentence of death than to overrule an advisory opinion recommending death and enter a sentence of life imprisonment.

Section 921.141, Florida Statutes, requires this court to provide a review of a sentence of death. In Dixon, supra, we said:

“. . . review by this court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in the light of the other decisions and determine whether or not the punishment is too great . . . ”

In Dixon, supra, we determined that it was the legislative intent to extract the penalty of death for only the most aggravated and the most indefensible of crimes.

The jury, in considering all of the evidence, believed the appellant guilty, but upon consideration, unanimously rejected the idea of imposing the ultimate penalty. We find no objection to the jury’s determination.

Therefore, the order imposing the sentence of death be and the same is hereby reversed with directions to impose a sentence of life imprisonment in accordance with law and the recommendation of the jury.

Accordingly, this cause is affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

OVERTON, J., and DUVAL, Circuit Judge, concur.

ADKINS, C. J., and ROBERTS, J., concur with opinion and judgment, and concur specially with an opinion.

BOYD, SUNDBERG and HATCHETT, JJ., dissents with an opinion.

ADKINS, Chief Justice and ROBERTS, Justice

(concurring specially).

We concur in the opinion and judgment announced in the Per Curiam decision for the reason that we have been unable to attract the support of two other Justices for a full affirmance of the judgment of guilt and sentence of death. For that reason, the best decision obtainable is that announced in the Per Curiam decision which affirms the judgment of guilt but reduces the sentence to life imprisonment. We have concurred in such disposition of the case as being the most just obtainable. However, it would be our preference to affirm both the judgment of guilt and sentence of death.

The homicide was committed while the defendant was attempting to commit a robbery for pecuniary gain. It was committed in a heinous, atrocious and cruel manner.

There is a distinction between a defendant firing a pistol at his victim and plunging a knife into his body. A shot may be fired in a sudden outburst of emotion or because of a “hair-trigger,” but the use of a knife necessitates a period of cold calculation. To plunge a knife nine inches into the deceased’s body, not once, but twice, and then to plunge it into the back of the victim, required reflection and murderous calculation. The Court, in considering the aggravating circumstances, said:

“The Court nevertheless finds that notwithstanding your recommendations, there are sufficient aggravating circumstances as contemplated by Subsection 6 of Section 921.141 of the Florida Statutes which require the Court to adopt a contrary view.
“The Court is mindful of the Defendant’s youth in this case, but this Court does not view that youth alone is a sufficient mitigating circumstance such as might tend to excuse the grossness of this crime from the maximum penalty.
“The Court is also mindful that the Defendant has no prior criminal record but the very fact that the Defendant has no prior criminal record does not give him a license to commit the grossest sort of crime, as the Court views this crime to be.
“The record in this case and the evidence which this Court believes is such as to convince this Court that the Defendant had an opportunity to withdraw but instead chased the deceased out the door of the Royal Castle establishment and engaged in an affray in the street in which the Defendant acquired the knife which the deceased had in his hand and plunged it into the chest of the deceased to its maximum hilt, that is to say, nine inches or thereabouts as the evidence shows and that not only did he plunge it nine inches twice hut he plunged it once again somewhere in the hack.
“The Court finds that the Defendant’s youth and his physical circumstances could have been such to have permitted him to withdraw at any time, that he chose not to do this.
“This court has considered other circumstances and the Court views this case to be a classic case of what we refer to as felony murder and felony murder in the first degree in this case.
“This Court finds that the offense was committed for the sole purpose of acquiring money wrongfully which is another one of the items which we are entitled to consider under the Statute.
“The Court finds that the weapon used and the circumstances were such that the Defendant is not entitled to mercy.
“In that case, under these circumstances, Counsel, bring the Defendant forward for further proceedings.” (Emphasis supplied)

In analyzing the evidence in connection with aggravating circumstances and mitigating circumstances, we reach the same conclusion as the trial judge.

There was no element of self-defense; the homicide was committed on the public streets; the defendant was willing to take a human life for the purpose of a small pecuniary gain; and the defendant was determined to inflict mortal wounds on the deceased in a cruel manner.

BOYD, Justice

(dissenting).

I dissent.

The record clearly indicates Appellant is guilty of murder, but I must dissent to the majority opinion. The trial court erred by admitting a confession secured from Appellant after he had stated he did not want to talk to policemen about the crime but wanted to talk to a lawyer instead.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the Supreme Court of the United States said regarding an accused person in custody:

"... If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (see 384 U.S. 444-445, 86 S.Ct. 1612, 16 L.Ed.2d 707)

To me, this language means that, although an incarcerated person accused of a crime may formally waive all of his Miranda warnings, he may at any time demand an attorney and then he will be privileged to remain silent until he secures his own counsel, if financially able, or until a public defender is appointed if he is indigent. It is improper for policemen, investigators or prosecutors to try to persuade the accused that he should waive his rights and confess without benefit of counsel. When the prisoner says that he will remain silent, the interrogation should stop. The instant record shows that Appellant was given his Miranda warnings both orally and in writing; but I construe Miranda to mean that, although a defendant may waive his rights, he can later withdraw the waiver and invoke his constitutional rights at any time as to any future interrogation.

In United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970), according to the FBI investigating agent, the accused person stated “he was unwilling to discuss any activities on his part concerning the bank robbery or any bank robbery in which he might have been involved.” Despite this, police interrogation continued, and the agent asked the suspect “if he was willing to discuss the circumstances surrounding his activities before and after the bank robbery.” The defendant agreed and interrogation continued. The Circuit Court of Appeals held that to be a violation of the rights expressed in Miranda, supra.

In Wakeman v. State, 237 So.2d 61 (Fla.App.1970), cert. dism., Fla., 243 So.2d 419, the Court held that it was a violation of the defendant’s Miranda rights for the police to question her about the crime after she had requested an attorney and while, with the full knowledge of the police, her lawyer was on his way to the jail.

The following direct quotations from the trial court record sub judice of questions propounded to both interrogators and Appellant show the events occurring during this Appellant's incarceration:

“Q [Officer Cunningham] . . . Did he at any time say that he wished to remain silent ?
“A No, sir. He did not.
“Q Did he at any time request an attorney?
“A No, sir.
“Q Did he at any time request that the interview cease?
“A No, sir. The only thing he said was he would like to tell his attorney first and we told him he could tell us just as well and that- his attorney would not be able to tell us what he said so he wanted to tell us himself.
“Q All right, and did he read all of the rights or did he read the card that you have in your hand?
“A He was handed the card and I presume he read it. He was looking at it.
“Q Did he turn the card over ?
“A Yes, sir; because he had to sign it on the back of the card.
“Q Did he sign it on the back of the card in your presence ?
“A Yes sir. He did.
"Q And did you proceed at that point to interview this Defendant ?
“A Yes sir. We did.
“Q And was this interview put on tape?
“A Yes, sir. It was.
“Q Was this interview typed up ?
“A Yes, sir. It was.”
* * * He * *
“Q Officer Cunningham, you indicated just a few seconds ago something about Mr. Thompson wanted to tell his attorney first ?
“A Yes, sir.
“Q He indicated that to you ?
“A Yes, sir.
“Q And then what did you tell him?
“A I advised him if he told you that he would not be able to tell us what happened.
“Q And then he went ahead and told you?
“A Yes, sir.
“Q Did you make any promises to him?
“A No, sir.
“Q Did you tell him it would go easy on him if he gave this statement?
“A No, sir. The only thing we advised him was the difference in the charge of first degree murder and the charge of third degree murder.
“Q But he did ask for an attorney ? He wanted to tell an attorney first?
“A Yes, sir, and we advised him if he told an attorney first he would not be able to talk to us and tell us his side of the story.
“Q And you say you handed the card to Mr. Thompson and then he handed it back to you, but you didn’t read any rights to him ?
“A We advised him of his rights verbally. I handed him the card. He read the card. We advised him to turn it over on the back and he read the open part. He signed it. Officer Latham signed it. I signed it.
“Q. When did he tell you he wanted to talk to an attorney first in relation to the card ?
“A Quite some time after.
“Q So he signed the card and he told you he wanted to talk to an attorney first?
“A No, sir. This was some time afterward. The only thing he said was that he would like to tell his attorney first and we advised him that if he told his attorney, he could not tell his side of the story.”

The following are questions by counsel and answers of Appellant:

“Q Have you made any statements in the presence of any police officers?
“A Yes, sir.
“Q Do you recall when you made the statement ?
“A I don’t recall the exact date.
“Q Do you recall who was present?
“A Yes, sir.
“Q Who was there ?
“A Officer Cunningham and Officer Latham.
“Q And where did that take place ?
“A On the fifth floor of this building.
“Q Where at on the fifth floor ?
“A In a small interview room.
“Q Do you recall being asked some questions ?
“A Yes, sir.
“Q Did you ever ask for an attorney?
“A Yes, sir.
“Q What happened when you asked for an attorney?
“A Well, Officer Cunningham told me that if I would talk to my attorney first that I wouldn’t be able to, that they wouldn’t be able to take my statement from me.
“Q And what happened after that ?
“A Well, Officer Cunningham kept on trying to persuade me to give them a statement.”
* * * * * *
“Q And you told him you wanted to talk to an attorney first? Did he stop questioning you ?
“A Well, no, sir, first when they first told me that they wanted a statement, I told him that I didn’t want to talk to him because I didn’t want to make a statement because I didn’t trust them.”

In admitting the confession obtained by police under the above circumstances as evidence against Appellant over objections of his attorney, I feel the trial court violated one of the basic Miranda rights required by present Federal and State constitutional standards. The record shows Appellant, in the presence of his attorney, later confessed and admitted his guilt at trial. It can be argued that the later confession rendered the admission into evidence of the improper first confession of no consequence and excuses it under Florida’s harmless error statute, Section . 924.33, Florida Statutes, which reads as follows:

”924.33 When judgment not to be reversed or modified. — No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.”

I am persuaded, however, that once an unconstitutional confession is secured a good lawyer, knowing or believing it will be admitted, may feel that his client’s only hope of avoiding a death sentence would be a full confession which otherwise would not have been made.

Because I feel Appellant’s constitutional rights to remain silent and to have counsel as requested were violated, I must respectfully dissent to the majority opinion; I would hold that a new trial should be granted without use of any confession heretofore made by Appellant.

SUNDBERG, Justice

(dissenting).

I must respectfully dissent from the decision of the majority in this case in that I do not conclude, as does the majority, that the introduction of the first statement made by the defendant, over objection, constitutes harmless error within the purview or intent of Section 924.33, Florida Statutes. I feel constrained to separately state the basis of my dissent in that, at this juncture, I am not prepared to embrace without reservation the dissent of my colleague, Mr. Justice Boyd. I say this because I do not believe it is necessary in the instant case to reach so far as Mr. Justice Boyd does in his dissent.

It appears clear from the colloquies quoted from the transcript in Mr. Justice Boyd’s dissent that prior to the State’s obtaining the statement of confession in question herein the defendant requested aid of counsel to consult with before making the statement. I firmly believe that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, requires that once an accused requests the aid of an attorney the questioning by his interrogator must cease forthwith notwithstanding the fact that, with full understanding and appreciation, he has previously received a full and fair explanation of bis constitutional rights. The rationale for the Miranda rule as it relates to entitlement to counsel after a request by the accused is well set forth in the Miranda decision and those which have followed and, therefore, I do not deem it necessary to expound the rightness of the rule. The majority concludes that even though the trial judge may have been in error in failing to suppress the statement which was recorded subsequent to the request for counsel such error was harmless in that it was exculpatory and essentially in accord with a subsequent statement given by the accused after he was represented by counsel as well as with his testimony at trial. A close review of the statements and the testimony, however, belies this analysis. The pertinent portion of the original statement, made at the Orlando Police Department on October 18, 1973, is as follows :

“Q Would you please relate to us what happened between you and Richard Dean at the Royal Castle on East Church St. ?
“A Ah, okay I was in the place and I went in ah, and I was going to robb it and so the man went in the back and I jumped over the counter, you know I was gonna go in the cash register while he was in the back and get out of the place before he knew it. Okay, so I was watching him though the tile on the glass and he had started up toward the front for something and he seen me through the tile and so he started hollering at me, and ah to get out of there and he was going to call the Police and stuff. And so he started to move around the counter, I mean up toward the front and so I moved out in front of him. And you know, I thought I could scare him and so he ran back and grabbed a butcher knife off the sink back there in the back, and so he started at me with it and I started to run and you know he caught me, so we started struggling inside the place and I, I tried to grabb ah a one of the table knives and I dropped it on the floor and so we was struggling and I got away from him and I went to, I ran back to where the stool was at. I picked up the stool and I started back toward the front and I wasn’t sure whether he had the knife or not. I threw the stool at him and so he ran outside the place and I ran outside and when we got outside we started fighting and all, all it was I was trying to keep him from stabbing me, and he just kept on fighting. I finally got the knife away from him and he was still fighting and I stabbed him.”

As elicited from Officer Cunningham at trial upon cross-examination by counsel for the defendant, the pertinent portions of the second statement given to the law enforcement officer prior to trial but while counsel for the defendant was present, is as follows:

“Q I didn’t quite understand you, Officer Cunningham.
“Who ran out the door first?
“A According to the second statement, Mr. Dean ran out the door and he turned east on Church Street and the Defendant ran out the door and turned west on Church Street.
“Q And what happened then ?
A According to the second statement, the Defendant fell.
“Q Officer Cunningham what do you recall about what Mr. Thompson said?
“A He ran west on Church Street falling in about the middle of Court Street, Mr. Dean still with the knife, ran towards him. A struggle ensued. He took the knife away from Mr. Dean and stabbed him approximately two or three times and then continued running west on Church Street.” (Emphasis supplied)

At trial the defendant testified in the following manner concerning the events of the evening in question:

“[A] . . . At that time he ran to the sink and picked up the butcher knife and attacked me.
“Q And where did that take place, in the Royal Castle, out front or in back or where ?
“A In front, right behind the counter.
“Q So what did you do ?
“A Well, I turned around and started to run when I seen him coming at me with the butcher knife.
“I ran into the counter and Mr. Dean got me. I tried to grab a cup to throw at him or something.
“I dropped the cup on the floor. I saw a butcher knife on the counter and I tried to grab it but I dropped it.
“Mr. Dean grabbed me and. we got to fighting between the juke box and the counter and the corner.
“Q And did he have the knife in his hand at that time ?
“A Yes, sir.
“O Pardon ?
Yes, sir. >
What took place at that time ? O
Mr. Dean tried to stab me with the knife and I finally broke away from him and ran and picked up the stool and Mr. Dean started to come at me again. >
“I threw the stool at him and hit him on the right side of his body.
And what did he do at that time? ©
Mr. Dean turned around and ran out the front door and he turned left going down Court Street and I ran out a few feet behind him and turned right to go around the corner. >
Going out the front door, he went left and you went right? ©
Yes, sir. >
And what happened at that time? ©
When Mr. Dean saw that I wasn’t chasing Mm, he turned around and started chasing me. >
Where were you at that time ? ©
I was just getting to the corner. >
And what happened at that time? ©
Well, when I got around the corner, I slipped and fell and Mr. Dean caught me. >
“He jumped on me and we started to fight again.
“I kept trying to hold his hand to keep him from stabbing me. I finally got the knife away from him and then he started to choke me.
And what happened at that time? ©
Well, I reached around in back with the knife in my hand and I stabbed him in his face. I wasn’t > sure whether I stabbed him or not because he continued to choke me.
“Q So what did you do ?
“A Well, then that’s when I stabbed him in his chest.” (Emphasis supplied)

It can be observed that the second statement made by the defendant as well as his testimony at trial varied in two essential respects from the original statement made on October 18, 1973: First, it is clear from the second statement and the testimony at trial that although the victim ran from the premises first with the butcher knife in hand he turned in one direction and the defendant, after following the victim out, turned and ran in the opposite direction, whereas in the original statement it appears that the defendant simply followed the victim out the door in a continuous, uninterrupted affray with the defendant being the pursuer; second, the second statement as well as the testimony at trial make it appear that as the defendant was attempting to escape he fell, the victim jumped upon him and commenced to choke him before the defendant wrested the knife from the victim and commenced the stabbing, whereas in the original statement the inference can readily be drawn that the defendant was the aggressor. It seems clear to me that the account contained in the first statement could have been sufficient to tilt the scales in favor of the State on the matter of first degree murder as opposed to the lesser included offenses upon which the jury was charged by the trial judge. The fact that the jury unanimously recommended life imprisonment as opposed to death lends credence to this assumption.

The fact that the defendant took the stand and testified concerning the same events described in the original statement affords no reason for waiver of the constitutional guarantees afforded him by the Fifth and Fourteenth Amendments to the United States Constitution. The only authority relating to use of an improperly obtained confession when the defendant testifies at trial is limited to the use of such a statement for impeachment purposes only. Such authority is represented by cases such as Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). It is clear from such cases that confession evidence improperly obtained may not be used in the State’s case in chief, but may be used only for impeachment when the defendant takes the stand and testifies in opposition to the statement previously made. The rationale for such a rule is well stated in the Hass opinion wherein Mr. Justice Blackmun states:

“As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, ‘the benefits of this process should not be lost’; and again, making the deterrent effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.”

In the case sub judice the statement was introduced in the State’s case in chief and was in nowise offered to impeach any testimony of the defendant from the stand.

If the prophylactic effect of Miranda is to be obtained we may not engage in the practice in a case such as this of characterizing as “harmless error” the failure to suppress evidence obtained in contravention of the rights secured by the Constitution of the United States and of the state of Florida regardless of the balance of the testimony in the record which may point to guilt of the crime for which the defendant is convicted. Accordingly, I would reverse with instructions for a new trial at which the statement in question is excluded.

HATCHETT, Justice

(dissenting).

Like Mr. Justice Boyd and Mr. Justice Sundberg, I dissent from the affirmance of the conviction on account of the clear Miranda violation. I believe the language Mr. Justice Boyd cites from the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), and the excerpts he quotes from the interrogators’ testimony, establish that the original statement was improperly admitted; and I believe Mr. Justice Sundberg has shown, by reference to other portions of the transcript, that admission of that statement might reasonably have affected the outcome of the case. I concur in the view that introduction of the first statement appellant gave while in custody tended to corroborate the prosecution’s theory of “a continuous, uninterrupted affray with the defendant being the pursuer.” Ante, p. 12 If the jury had accepted the competing defense version of the facts, a verdict of first degree murder would not have been inevitable, or even very likely, in my opinion.

The inadmissibility of a custodial statement ought not automatically render inadmissible subsequent custodial statements, in my view. On this account, I do not join Mr. Justice Boyd’s dissent, although I share his belief that later confessions are generally the product of the first, uncoun-selled one, in cases like the present case. If objected to, such later confessions should be excluded, unless, at a hearing held outside the jury’s presence, the prosecution shows, by a preponderance of the evidence, see Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); McDole v. State, 283 So.2d 553 (Fla.1973), independent volition sufficient to purge the taint of the primary illegality. Westover v. United States, 384 U.S. 436, 496-7, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Cf. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), 17 Cr.L. 3145; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The temporal proximity of subsequent statements is relevant to such a determination, as well as the whole range of intervening circumstances and events. At the very least, where a statement has been illegally elicited from an accused in custody, no subsequent custodial statement should be admitted, unless the prosecution can show that the accused understood, at the time of the later statement, that the original statement could not be used against him at trial. Mere recitation of the Miranda warnings, in' the interim between statements, cannot suffice to erase the taint. Brown v. Illinois, supra. Contra, State v. Oyarzo, 274 So.2d 519 (Fla.1973); Gustafson v. State, 273 So.2d 86 (Fla.App. 4th Dist. 1973) cert. discharged 287 So.2d 69 (Fla.1973). If the accused consults with counsel, however, and gives the later statement in counsel’s presence, as happened here, the later statement should ordinarily be admissible, unless, for example, defense counsel justifiably relied on factual misrepresentations by prosecutorial or law enforcement personnel, in concluding that the original statement would be admissible, and so advising the accused.


text:
    Willie HARRIS, Petitioner, v. STATE of Florida, DIVISION OF CORRECTIONS, Louis L. Wainwright, Director, Respondent.
    No. 46929.
    Supreme Court of Florida.
    Feb. 9, 1976.
   PEREMPTORY WRIT OF MANDAMUS

In the name and by the authority of the State of Florida, to: Honorable Louie L. Wainwright, Director, Division of Corrections, State of Florida, Greetings:

Petition for Writ of Mandamus having been filed, Alternative Writ of Mandamus issued, and Return thereto having been filed.

It is ordered that the Division of Corrections recompute petitioner’s sentence in accordance with Brumit v. Wainwright, 290 So.2d 39 (Fla.1973), and Benyard v. Wainwright, 322 So.2d 473 (Fla.1975), and make known your full compliance with this writ on or before February 20, 1976.


author: PER CURIAM.

text:
    BLAIR CONTRACTING CO., INC. and Florida Terminals and Trucking Co., Petitioners, v. William BEVIS et al., Respondents.
    No. 47642.
    Supreme Court of Florida.
    Feb. 18, 1976.
    Francis P. Conroy and Mattox S. Hair, of Marks, Gray, Conroy & Gibbs, Jacksonville, for petitioners.
    Prentice P. Pruitt, Legal Director, and Norman H. Horton, Jr., Staff Counsel, Tallahassee, for the Florida Public Service Commission, respondents.
    Norman J. Bolinger, of Schwartz, Bol-inger & Peterson, Jacksonville, for Roun-tree Transport, Inc. and Suwannee Transfer, Inc., intervening respondents.
   PER CURIAM.

Our careful consideration and analysis of the petition, the record, briefs and arguments of counsel sustain the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its orders, Respondent Commission met the essential requirements of law.

Accordingly, the petition for writ of cer-tiorari is

Denied.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


author: ROBERTS, Justice.

text:
    Fredric Winton ALTMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 47198.
    Supreme Court of Florida.
    Feb. 18, 1976.

      Rick B. Levinson, of Levine, Freedman & Hirsch, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for respondent.
   ROBERTS, Justice.

This cause is before us on certiorari granted to review the decision of the District Court of Appeal, Second District, reported at 309 So.2d 262 (Fla.App. 2, 1975), granting respondent’s motion to dismiss the appeal on the ground that it had been prematurely filed. The order of the District Court dismissing the appeal was entered on March 10, 1975. Petition for writ of cer-tiorari was filed here and during the pen-dency of a determination of jurisdiction in this matter, this Court rendered its decision in Williams v. State, 324 So.2d 74, filed December 3, 1975, wherein, we determined that an appeal would not be dismissed because a notice of appeal had been prematurely filed. The instant decision of the District Court under review directly conflicts with Williams, supra, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Constitution of Florida.

In Williams, supra, this Court opined:

“Leaving aside the question of obtaining supersedeas bond, we also hold that a notice of appeal which is prematurely filed shall not be subject to dismissal. Rather, such a notice of appeal shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered. At the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court.
“Thus, a notice of appeal which is filed after the oral pronouncement of judgment and/or sentence, but before rendition thereof, is not to be dismissed on the grounds that it is premature. This rule shall apply to such situations as when the defendant filed his notice of appeal:
1. After oral prouncement of judgment, but before the judgment is reduced to writing and signed.
2. After the written judgment is signed, but before it is rendered (filed for recording).
3. ^After the written judgment is filed for recording, but before a post-trial motion is decided.
“This list is not to be considered as delineating the only situations in which this ruling applies. Others may arise in future cases. Thus, cases such as Holmes v. State, 267 So.2d 344 (Fla. App. 4th 1972), which held that a notice of appeal must be dismissed if filed prematurely, are expressly overruled.
“Apart from these judgments, decrees, decisions and orders which are required to be recorded, our holding as to the premature filing of a notice of appeal is also to apply in these cases where the judgment, decree, decision or order is not required to be recorded. As to these, Florida Appellate Rule 1.3 only requires that it be ‘filed with the clerk’ as opposed to ‘filed for recording.’
“It is emphasized that our respective holdings herein do not expand the thirty-day appeal period mandated by the Appellate Rules, but rather serve to harmonize the inconsistent prior practices under the rules with this Court’s philosophy that procedural practices should not be permitted to frustrate substantive rights.”

Accordingly, the decision of the District Court is quashed and the cause remanded for further proceedings consistent herewith. Williams v. State, supra.

It is so ordered.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.