author:
HARRIS, Judge.
      CATES, Judge,

text:
    LaFrench HOPSON v. STATE.
    7 Div. 492.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      H. Wayne Love and James D. Sloan, An-niston, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and the jury fixed his punishment at 20 years imprisonment in the penitentiary. He was represented by court-appointed counsel at arraignment and trial. He pleaded not guilty and not guilty by reason of insanity. After conviction appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

Appellant was indicted on February 9, 1971, for murder in the first degree involving the death of his uncle, LaFrench Hugh-ley, by shooting him with a gun. The evidence surrounding the killing was circumstantial. Appellant did not testify, and no testimony was offered in his behalf.

At the conclusion of the State’s case appellant made the following motion:

“MR. LOVE: Your Honor, we move to exclude the State’s evidence on the basis that they have failed to prove the corpus delicti. They have failed to prove that the man died of any criminal act. The indictment says that he was killed by a shot with a rifle, and they have failed to prove that. They have failed to prove that, even if he was shot with a rifle, he died from that. They have failed to prove that, even if he died by a gunshot wound, that it was a shot fired by the defendant. They have failed to prove that it was intentional, premeditated, and deliberate.”

This motion was overruled but it puts us to a recital of the evidence, which is most favorable to the State.

Dan Hughley, Jr., a brother of the deceased and an uncle of appellant, testified that he was 71 years of age and that his brother was 40 years of age at the time of his death on the 28th day of August, 1970. He stated that his brother and appellant were living in the same house located at 1020 Parkwood Drive, Anniston, Alabama, on August 28, 1970. He said the last time he saw his brother alive was on the morning of August 28, and the next time he saw him was on the afternoon of the same day when the Rescue Squad was taking him out of the house on a stretcher.

This witness further testified that on the afternoon of August 28, appellant drove to his home on Sidney Street and told him that he had killed the _ _ _ _, referring to the deceased. He stated that appellant was driving a blue Buick automobile and that he saw a rifle that belonged to his father in appellant’s automobile. He said that after appellant told him he had killed the deceased, he drove off at a fast rate of speed. He further stated that he was in such shock that he was unable to move until someone offered to carry him to his brother’s house. When he arrived at his brother’s home, he saw him on the stretcher and he was very bloody. He entered the house and found his brother’s brains scattered all over the floor in the bedroom. He saw bullet holes in the window of the bedroom and a number of bullet holes in the door to the bedroom. He further testified that he saw blood and brains in his brother’s bedroom but he did not see any weapons of any kind — guns, knives, rifles, axes, hatchets, picks, etc.

Dan Hughley, Jr., further stated that he saw his brother the next day at the funeral home and he was dead. That the next time he saw appellant was on the day of the trial of appellant for murder on June 16, 1976.

Magnolia Mitchell testified that she lived at 1008 Parkwood Drive which was directly across the street from the house where appellant and the deceased lived. She stated she saw appellant on the afternoon of the killing, between 1:00 and 1:30 o’clock. That she was sitting on the porch of her home and saw appellant drive to the home where he had been living with the deceased. She saw him enter the house and after a few minutes he came out with a rifle or gun in his hand and got in his car and left. After appellant left, the deceased came home and entered his house. About an hour or so later appellant came back to the house. He jumped out of his car, ran upon the porch and started shooting at the window and also the door. She heard glass breaking. She then saw appellant run around to the rear of the house and she heard a noise, like somebody breaking in the back door and saw that door open.

She further testified that she had known the deceased for a long time and had talked to him almost every day. She stated that she was familiar with his voice. She said that when appellant broke into the back door, she heard the deceased say, “Please, Bill, don’t. Please, Bill, don’t,” and she heard more shots, after which appellant got in his car and left. He carried the rifle with him. Appellant was also called “Bill” by the people who knew him. That was his nickname. She then ran to the home of her next door neighbor.

She further stated she saw the Rescue Squad carrying the deceased out of the house on a stretcher. She also saw the brother of the deceased when he came to the house and went inside.

This witness further said that she next saw appellant later that afternoon. He was walking and was carrying the gun with him; that a number of people were at the house when appellant walked up and asked for his clothes. Most of the people present jumped up and ran but someone went in the house and returned with some clothes and put them on the porch. Appellant walked to the porch and picked up the clothes and walked up the street.

On cross-examination this witness testified that in her best judgment appellant fired four to six to ten shots before he got in his car and fled from the scene. She stated she saw appellant shoot through the door and through the window.

Dorothy Minnifield testified that on August 28, 1970, she lived with her husband and family at 1010 Parkwood Drive; that she knew the deceased in his lifetime but she did not see him on the day he was killed. She stated she was sitting on her porch on August 28, and saw appellant drive his blue Buick automobile to the house of the deceased. That she observed him stop his car and reach back and get a rifle. He got out of his car and walked up on the porch where he and the deceased lived. She saw him fire one shot and she ran to the Turner house a short distance away. While standing on the porch of the Turner house, she saw appellant come out of the Hughley house with the gun in his hand. He got in his car and left the premises and she did not see appellant again until the day of his trial. She identified him in the courtroom as being the same man who fired the shot in the deceased’s home on the day he was killed.

Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; DeSilvey v. State, 245 Ala. 163, 16 So.2d 183; Harnage v. State, 49 Ala.App. 563, 274 So.2d 333; Cronnon v. State, 56 Ala.App. 192, 320 So.2d 697.

This is one of the strongest cases of circumstantial evidence to reach this Court in a long time. Moreover, a few minutes after the fatal shooting appellant drove to the home of the brother of deceased and told him that he had killed LaFrench Hughley and soon thereafter he fled from the state of Alabama.

Prior to entering into the trial of this case appellant filed a motion to dismiss the indictment on the ground he was denied a speedy trial. After a lengthy hearing this motion was denied. Appellant then filed a motion for a change of venue alleging that he could not get a fair trial in Calhoun County because of widespread publicity relative to the case. Testimony was heard on this motion and the Court denied this motion also.

It was developed on this hearing that appellant left Alabama after killing his uncle and went to the state of New York. Shortly after arriving in New York, he committed another homicide resulting in a conviction for manslaughter in the first degree for which he was sentenced to eight years in Attica State Prison. He testified that while serving the eight-year sentence in Attica, he learned that he had been indicted for murder in the first degree in Calhoun County, Alabama, involving the death of his uncle, LaFrench Hughley. He further stated that on August 20, 1973, he communicated with the Alabama authorities requesting that he be returned to Alabama to answer the charges pending against him. He said he did not receive a reply to this request. Later he solicited the aid of the Legal Aid Bureau of Buffalo, New York.

On August 22, 1974, a letter was sent to the Calhoun County Court by an attorney for Hopson, stating he was enclosing a motion for a speedy trial for Hopson who was presently incarcerated in Attica Correctional Facility. This letter made inquiry as to the status of the case against Hopson for which a warrant was being held against him at Attica. This letter was followed by another letter from a different attorney on September 19, 1974, seeking the status of the case against Hopson. This letter was also sent to the Calhoun County Court. This last letter was answered by the Clerk of the Circuit Court of Calhoun County advising the writer that the Grand Jury of Calhoun County indicted Hopson for murder in the first degree on February 9, 1971, but that the defendant had not been arrested.

Alabama had filed a detainer for Hopson with the proper authorities in New York. On November 12,1974, the County Judge of Wyoming County dismissed the warrant for Hopson’s arrest without prejudice to any subsequent extradition proceedings by the State of Alabama.

In the meantime the authorities in Alabama had been trying to locate Hopson. On September 10, 1970, the District Attorney of Calhoun County wrote a letter to the United States District Attorney in Birmingham enclosing copy of the murder warrant against him and giving a description of the defendant. The purpose of this letter was to request the United States District Attorney to issue a complaint or warrant against Hopson for Unlawful Flight to Avoid Prosecution and if he was taken into custody, Alabama would seek to extradite him and prosecute him.

The secretary to the United States District Attorney wrote a letter to the County Sheriff in Buffalo, New York, on August 3, 1971, to ascertain if Hopson was in jail there and if he would waive extradition to Alabama to answer the charge pending against him in Calhoun County. The secretary received a letter from the Assistant Superintendent of the Erie County Jail on August 9, 1971, advising her that Hopson was in custody there on a charge of first degree murder and a detainer would be lodged against him. This letter went on to say that if Hopson was sentenced to another institution on the charge pending against him, the detainer from Alabama would be sent to that institution.

On October 19, 1971, the Superintendent of Attica Correctional Facility, wrote a letter to the prosecuting attorney of Calhoun County, Alabama, advising him that he would be notified in sufficient time prior to the release of Hopson so that he could be taken into custody.

On June 18,1974, extradition proceedings were begun by the District Attorney of Calhoun County by filing an application for extradition with the Governor of Alabama for a requisition to the Governor of New York. The proper requisition papers were forwarded by the Legal Adviser to Governor Wallace to Governor Nelson A. Rockefeller on June 25, 1974.

On July 16, 1974, Counsel for Governor Rockefeller advised the Legal Adviser to Governor Wallace that Hopson had been convicted of first degree manslaughter in Erie County, New York and sentenced to the Attica Correctional Facility for eight years. He further stated that “the date of conditional discharge for Mr. Hopson is April 9, 1976,” and “In view of the long delay before subject will be available to answer a fugitive warrant, Governor Wallace’s requisition is being returned to you.”

Following receipt of the above letter Governor Wallace’s Recording Secretary sent a copy of this letter to the District Attorney of Calhoun County and suggested that he might wish to place a holdover for this fugitive or enter into an Executive Agreement to return Hopson to Alabama for trial and then return him to New York.

On August 9, 1974, the District Attorney of Calhoun County, Alabama, wrote a letter to Counsel for Governor Rockefeller to please place a hold on Hopson at Attica Correctional Facility and advise him 60 days prior to his release. On August 15, 1974, Counsel for Governor Rockefeller wrote the District Attorney and advised him that his letter of August 9, 1974, had been referred to “Mr. Eugene Phillips, Supervisor of Inmate Classification and Movement, Department of Correctional Services, State Campus, Albany, New York.”

This was the last communication from New York to the authorities in Alabama relative to the return of Hopson to Alabama to stand trial for murder in the first degree.

Appellant testified that he was released from the New York prison on April 9, 1976 and he returned to Alabama where he was arrested. New York did not honor the District Attorney’s request that he be notified 60 days prior to Hopson’s release date so that new steps could be taken to extradite him or otherwise gain custody of him. When appellant returned to Alabama, he did not surrender to the authorities and demand a speedy trial. He simply did not want a trial at all.

At the conclusion of the hearing on the motion to dismiss the indictment the Court made the following observations:

“THE COURT: Well, the Prince case, as I understand it, involved this, more or less, an annual exchange of letters between the District Attorney in Birmingham and the California authorities, in which the District Attorney more or less stated ‘We still want Prince, have you still got him, we still expect to take charge of him when he has paid his debt to California,’ so to speak, and that was the substance of these repeated letters over the year. It was never an attempt at extradition. The Hopson case differs from that case in that extradition was actually attempted by the State of Alabama and was refused by the State of New York. Now, the Barker versus Win-go case did not involve moving a prisoner from one state to another, as I understand it. A man was held under threat of trial for more than five years and all within the same state.
“MR. LOVE: That’s correct.
“THE COURT: Now, when was Mr. Hopson released from — when did he obtain his conditional release from Attica State?
“MR. CAHILL: April the 9th, 1976.
“THE COURT: April the 9, 1976. So actually what we are dealing with is two things: One is the period before, something like before August 20, 1973; and the other is a period from that date up to release date in 1976. My conviction in this matter, based on the facts, is that Mr. Hopson knowledgeable (sic) and intelligently waived his right to a speedy trial up to and including the 20th day of August, 1973. When it began to appear to be to his advantage to demand a speedy trial, he did demand it and thereby withdrew his waiver. And then the next thing is, in view of the confused addresses and other things, whether prompt efforts were made to obtain him. I believe they were. And then the next question is whether, after being refused extradition, the State of Alabama was under a duty to make effort by another letter or go into Federal Court or do anything else. I don’t believe they were. The Constitution of the United States says that the various states are under a duty to extradite fugitives from justice in the other states. And extradition, as I understand it, is the highest Constitutional Exercise of the right of one state upon another. Where that is refused I don’t feel that the state is under any further duty. I am going to deny the motion and put Mr. Hopson on trial and I believe that the trial date is June the 14th, isn’t it?”

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Supreme Court held there were at least four factors to take into consideration in dealing with speedy trial issues. They are: (1) length of delay, (2) the reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. In Barker the Supreme Court held that where the defendant was not seriously prejudiced by more than five years delay between arrest and trial his Sixth Amendment right to a speedy trial was not violated.

In this case Alabama made a good faith attempt to gain custody of appellant after he committed the crime and fled the State and as soon as his whereabouts were known. The State of New York systematically thwarted Alabama’s efforts to return Hopson to the State to answer the indictment pending against him. There was only a few weeks delay between appellant’s arrest and the date of his trial. Appellant did not show that he was prejudiced in any manner either by murky memories of witnesses in his behalf or that he had any witnesses at all whose addresses had become unknown since the date of the crime. We hold that under the facts in this case appellant was not denied his Constitutional right to a speedy trial.

For other cases in which this Court has dealt with speedy trial cases see, Sellers v. State, 48 Ala.App. 178, 263 So.2d 156; Diamond v. State, 49 Ala.App. 68, 268 So.2d 850; Ex parte Collins, 53 Ala.App. 577, 302 So.2d 551; Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265.

A hearing was conducted on appellant’s motion for a change of venue. The basis of this motion was a tape recording with the District Attorney concerning appellant’s trial for murder which was broadcast over a local radio station three times. There were two broadcasts on June 9, 1976 and one on June 10,1976. The tape recording is set out in the record and there is nothing of a prejudicial nature in the statement given by the District Attorney to the reporter for the radio station. It merely recites the history of the case relative to the killing of appellant’s uncle and the time he spent in prison in New York for an unrelated killing. The broadcast was made five days before appellant’s trial. At the conclusion of the hearing the trial judge stated that he would reserve his ruling until the jury was qualified. The record does not reveal that any juror heard any one of three radio broadcasts. The motion for change of venue was overruled and denied.

There was no error in overruling the motion for change of venue. Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Mathis v. State, 52 Ala.App. 668, 296 So.2d 755.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, J., who dissents with an opinion.

CATES, Judge,

dissenting.

I must respectfully dissent because I think that the trial court has ignored Prince v. Alabama, 5 Cir., 507 F.2d 693, and Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, a 1972 case, is further explicated in the 1973 opinion, Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183.

To me it is obvious that New York, as early as 1971, had Hopson in custody. Extradition does not require a state to deliver a person convicted in its courts who is then obeying and enduring a sentence. Rather, under Braden, supra, habeas corpus ad pro-sequendum is the remedy. This was told to the prosecuting attorney by the governor’s recording secretary after New York had indicated that the request for extradition was premature.

If Hopson had been in the Alabama penitentiary instead of that of New York the principles of Ex parte State, ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, would have prevented a waiver until he knew of his indictment.

As I see this situation the burden of persuasion shifted to the prosecution when the then District Attorney apparently ignored the hint as to bringing Hopson back for trial with an executive agreement to return him thereafter to New York to serve the remainder of his New York manslaughter sentence.

Under Mayberry v. State, 51 Ala.App. 343, 285 So.2d 507, I vote to remand for a consideration of the rules laid down in Prince v. Alabama, 5 Cir., 507 F.2d 693. See Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, Barker, supra, Moore, supra, and Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26.

      . Letter of October 19, 1971, to prosecutor.


source: Caselaw Access Project

author: PER CURIAM. SHORES, Justice

license: Public Domain

text:
    In re LaFrench HOPSON v. STATE. Ex Parte LaFrench Hopson.
    SC 2309.
    Supreme Court of Alabama.
    Sept. 16, 1977.
    Rehearing Denied Dec. 9, 1977.

      H. Wayne Love, Anniston, for petitioner.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State, opposed.
   PER CURIAM.

We granted certiorari to review the decision of the Court of Criminal Appeals, 352 So.2d 500 which affirmed petitioner’s conviction for second degree murder and sentence of twenty years’ imprisonment in the penitentiary. We affirm.

Petitioner contended at his trial that he had been denied his constitutional right to speedy trial. The trial court denied his motion to dismiss the indictment because of deprivation of his right to speedy trial and the Court of Criminal Appeals affirmed the conviction.

Facts, sufficient for our decision, are contained in the Court of Criminal Appeals’ opinion.

It is, of course, fundamental that the right to speedy trial is guaranteed under the Sixth Amendment to the United States Constitution.

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is the yardstick by which the court determines whether there was a denial of speedy trial. In applying the Barker v. Wingo standards to this case: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of his right and, (4) prejudice to defendant; we reach the same conclusions as those reeched by the majority of the Court of Criminal Appeals.

(1) Here the length of delay from indictment to trial was five years. In Barker, it was five years. In Prince v. Alabama, 507 F.2d 693 (5 Cir. 1975), it was nine years. In Sellers v. Alabama, No. 74-55-5 (M.D.Ala. filed December 4, 1974), it was two years. This delay does not, of itself and in comparison with other cases, appear to be inordinate, particularly in view of the reasons for the delay.

(2) The reasons for the delay are because defendant fled the State of Alabama going to New York State where he committed another homicide. He was convicted and served his sentence there. At first, Alabama had difficulty locating him. Alabama made a “good faith effort” to extradite defendant but was refused by the Governor of New York. No such effort was made in Prince, supra, where the Fifth Circuit Court of Appeals held that attempts at extradition, or issuance of a writ of habeas corpus ad prosequendum would have constituted “good faith efforts.” This is in the disjunctive not conjunctive. To reach the result petitioner contends for, we would have to hold that both attempts must be pursued. We know of no Alabama or Supreme Court case so holding. The instant case is more nearly like Sellers than Prince. In Sellers the Governor of Georgia refused extradition. Chief Judge Frank M. Johnson found this to be a significant factor in finding no deprivation of speedy trial. In Prince, no extradition was attempted.

(3) Defendant’s assertion of his right was made three years before trial. This is not significantly longer than the two years found in Sellers.

(4) Finally, the prejudice to defendant must be considered. As Judge Johnson wrote in Sellers, “At no point . . has petitioner made any effort to prove or allege in detail any prejudice resulting from the pretrial delay.” In the opinion of the Court of Criminal Appeals, Judge Harris found that petitioner “did not show that he was prejudiced in any manner” either by “murky memories of witnesses” or “witnesses . . . whose addresses had become unknown . . . Petitioner fails to challenge this finding as required by Rule 39(k), ARAP. Under our rules of review, we cannot consider whether petitioner’s “claim” that denial of parole and denial of access to minimum security facilities (because of the Alabama detainer) constituted “prejudice.” There is no finding of fact as to these matters in the opinion. Rule 39(k) states specifically that our review by certio-rari of the Courts of Appeal is “limited to the facts stated in the opinion . . . ” and that if petitioner is not satisfied with the opinion’s statement of the facts, he may “ . . . present any additional or corrected statement of facts . . . ” etc. Petitioner did not do so.

With reference to our scope of review, even as to the application of the law to the facts, we are limited to the facts as stated in the Court of Appeals’ opinion.

“It is well settled under our decisions that on certiorari this court will not enter into a redetermination of facts as found by the Court of Appeals, and such findings are not subject to review by this court. Ex parte Pesnell, 240 Ala. 457, 199 So. 726; Broadway v. Alabama Dry Dock & Shipbuilding Co., 246 Ala. 201, 20 So.2d 41.”

State Dept. of Industrial Relations v. Ford, 278 Ala. 352, 178 So.2d 190 (1965) (per Harwood, J.).

“On certiorari this court will ordinarily review the Court of Civil Appeals only on questions of law and not upon the findings of fact, other than as to the application of the law to the facts as found by the Court of Civil Appeals. Russellville Gas Co., Inc. v. Duggar, 288 Ala. 309, 260 So.2d 395.”

Union Camp Corporation v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972) (per Harwood, J.).

“On certiorari, this Court will review the Court of Civil Appeals only on questions of law and not upon the finding of facts or application of the law to the facts except as to the facts as are stated in the Opinion of the Court of Civil Appeals so that a review may be effected without an examination of the record filed in the Court of Civil Appeals. Ex parte Steverson, 211 Ala. 597, 100 So.2d 912; Parham v. State, 217 Ala. 398, 116 So. 418; Tuscaloosa Motor Co., Inc. v. Cockrell, 272 Ala. 387, 132 So.2d 745.”

Russellville Gas Co. v. Duggar, 288 Ala. 309, 260 So.2d 395 (1972) (per Heflin, C. J.).

Weighing all the factors together, we find no deprivation of the constitutional right to speedy trial in this case. We are cognizant of the extreme remedy for such deprivation — dismissal as mandated by Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER and ALMON, JJ., concur.

JONES, SHORES, EMBRY and BEAT-TY, JJ., dissent.

SHORES, Justice

(Dissenting):

The following constitutes a chronology of events as established by the record:

August 28, 1970: LaFrench Huguley was shot to death in his home;

September 8, 1970: A warrant for the arrest of LaFrench Hopson on the charge of first degree murder was issued out of the Calhoun County Court;

September 10, 1970: The District Attorney of Calhoun County requested the issuance of a warrant against the defendant for unlawful flight to avoid prosecution from the U. S. Attorney for the Northern District of Alabama;

February 9, 1971: Hopson was indicted by the grand jury for first degree- murder;

August 3,1971: The District Attorney of Calhoun County inquired of the Sheriff in Buffalo, New York, concerning Hopson’s incarceration in the jail there and the possibility of a waiver of extradition by Hopson in order to answer the charge pending against him in Alabama;

August 9,1971: The District Attorney of Calhoun County was advised by the Sheriff of Erie County, New York, that Hopson was in custody there on a first degree murder charge and that a detainer would be lodged against him on the Alabama charge. The sheriff further advised the Calhoun County District Attorney that, if Hopson were sentenced to another institution in New York, the detainer would be sent to that institution;

October 15, 1971: Hopson was sentenced to eight years in Attica Correctional Facility, New York;

October 19, 1971: The Superintendent of Attica notified the District Attorney of Calhoun County that the Alabama warrant against inmate Hopson had been lodged against him, and that the District Attorney would be notified in a sufficient time prior to his release from Attica to allow the Alabama authorities to take him into custody;

August 20, 1973: Hopson executed and sent, by certified mail, a document demanding a fair and speedy trial to Governor George Wallace and to the Calhoun County Court, Anniston, Alabama. In that document, he stated that he was presently in Attica and appealed “to the authorities of the State of Alabama to come and get him so that he can answer said charges.”;

June 18, 1974: The District Attorney requested the Governor of Alabama to apply for extradition of Hopson to the Governor of New York;

June 24,1974 : The Governor of Alabama executed and forwarded a request for extradition to Governor Rockefeller of New York;

July 16, 1974: Governor Rockefeller replied to Governor Wallace’s request:

“We are advised that Mr. Hopson has been convicted of manslaughter, first degree, in Erie County, New York, and has been sentenced to the Attica Correctional Facility for 8 years. The date of conditional discharge for Mr. Hopson is April 9, 1976.
“In view of the long delay before subject will be available to answer a fugitive warrant, Governor Wallace’s requisition is being returned to you.”;

July 26, 1974: Governor Wallace’s office notified the District Attorney of Calhoun County that:

“The State of New York has returned our request for extradition of LaFrench Hopson, together with a letter which is self-explanatory.
“You may wish to place a holdover for this fugitive or enter into an Executive Agreement to return the party to Alabama for trial and then return him to New York.
“The request for extradition is being returned to you and should you decide to enter into an Executive Agreement, you may return the papers and we will resubmit them to the Governor of New York for further consideration.”;

August 9,1974 : The District Attorney of Calhoun County advised the Governor of New York, by letter to his Assistant Counsel, to “. . . place a hold on LaFrench Hopson who is presently in the Attica Correctional Facility and advise us sixty (60) days prior to his release.”;

August 15,1974 : Letter of August 9 was acknowledged and received by the New York Governor’s Office, stating that it would be forwarded to “. . . Mr. Eugene Phillips, Supervisor of Inmate Classification and Movement, Department of Correctional Services, State Campus, Albany, New York.”;

August 22, 1974: Edward L. Chassin, an attorney, wrote to the Calhoun County Court on behalf of Hopson requesting information on the charges pending against Hopson in Alabama;

September 19, 1974: Stephen J. Perrello, Jr., an attorney, wrote to the same court requesting information about the Alabama charges pending against Hopson;

September 23, 1974: The Clerk of the Circuit Court of Calhoun County responded to the September 19 letter by saying that the indictment had been issued against Hopson for murder in the first degree but that the “. . . defendant not yet taken into sheriff’s custody.”;

November 12, 1974: The State of New York, Wyoming County Court, ordered the dismissal of the Alabama detainer warrant without prejudice to any subsequent extradition proceedings by Alabama. The judge stated as grounds for the dismissal the long delay resulting from the failure of the Alabama authorities to dispose of the case.

April 9, 1976: Hopson was released from the Attica Correctional Facility. Alabama authorities were not notified by New York authorities prior to his release;

April 24, 1976: Hopson was arrested in Calhoun County, Alabama;

May 28, 1976: Hopson filed a motion to dismiss on the basis of a denial of his right to a speedy trial. Motion was denied after a hearing on the matter;

June 14,1976: The case was set for trial; and

June 16, 1976: Hopson was tried and convicted of second degree murder.

The right to a speedy trial is a fundamental right under the Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). It is, however, generically different from other constitutional rights because of its societal importance apart from any general concern with the treatment of accused persons. In recognition of this fact, the Supreme Court of the United States has held that any inquiry into this right necessitates a functional analysis of the speedy trial guarantee in the particular context of each case.

As noted by the majority, the Supreme Court of the United States, in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), set out four factors which courts should consider in determining whether, under the facts of a particular case, a defendant has been deprived of the right: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The balancing of these factors is a delicate process, requiring a determination of their relative importance in each situation based upon the facts of individual cases. No precise time can be set as being too long in bringing a defendant to trial. While the length of the delay may appear extreme at first glance, it may be sufficiently warranted by the reason for the delay. The delay may be attributable in whole or in part to the defendant’s own actions, in which case such actions should be weighed, despite the fact that the state bears the primary burden of bringing the defendant to trial and insuring that the trial itself is consistent with the requirements of due process. Any prejudice to the defendant must be assessed in the light of the interests protected by the right: The prevention of oppressive pretrial incarceration, the minimization of the accused’s anxiety and concern, and the limitation of the possibility of impairing the accused’s defense. Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. 2182.

As indicated, the indictment was returned against the defendant on February 9, 1971. He was tried in June, 1976, over five years from the date of the charge, and nearly three years from the date he first demanded a trial. Even though the defendant was incarcerated in New York serving time for a felony committed there, the Supreme Court of the United States has said that Alabama has a constitutional duty to make a diligent, good-faith effort to bring him before the Circuit Court of Calhoun County for trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969).

Did Alabama make that diligent, good-faith effort? When extradition was sought in 1973, Governor Rockefeller’s Office returned Governor Wallace’s requisition with the comment that it was being returned because of the long delay before Hopson would be released from Attica. In passing this information along to the District Attorney of Calhoun County, Governor Wallace suggested that the District Attorney might want to enter into an executive agreement with the New York authorities in order to obtain Hopson’s temporary release for trial on the Alabama charges and then return him to New York for the completion of his sentence there. Governor Wallace offered to seek such an agreement if the District Attorney desired. For reasons not apparent from the record, the District Attorney did not pursue that course. Instead he simply asked the New York Governor’s Office to place a “hold” on Hopson and notify him sixty days before Hopson’s release, which was scheduled for April 9,1976, nearly three years later.

Although it is not certain that an executive agreement would have proven successful in obtaining Hopson’s release from the New York authorities, the Supreme Court of the United States has held that a state is required to take whatever action may be necessary to attempt to secure the prisoner’s release for trial. The Supreme Court has further stated that “. . . ‘the possibility of a refusal is not the equivalent of asking and receiving a rebuff.’ . . .” Barber v. Page, 390 U.S. 719, 724, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968). The United States Circuit Court for the Fifth Circuit has been even more explicit. In Prince v. Alabama, 507 F.2d 693, 705 (1975), that court stated:

“. . . Alabama had a constitutionally imposed duty to take affirmative action to secure Prince’s return for trial. Mere inquiries about release and availability are not compliance with this duty. Attempts at extradition or the issuance of a writ of habeas corpus ad prosequen-dum by the Alabama courts would have been in the nature of such affirmative action. . . . ”

Tested by the federal cases, it is apparent that Alabama has not carried its burden of taking every step available to secure a speedy trial for the petitioner.

There is no contradiction in the record that Hopson asserted his right to a speedy trial as early as 1973. The state argues that Hopson’s petition was directed to the wrong court and, as a result, it failed to give the proper authorities notice of his demand. While it is true that the case was pending in the Circuit Court and Hopson’s 1973 demand, as well as the two subsequent letters written on his behalf, were all directed to the County Court, this mistake is at least partly due to the fact that the original warrant for Hopson’s arrest issued from the Calhoun County Court, giving Hopson reason to believe that the County Court had jurisdiction over his case. In any event, his efforts were sufficient to put the prosecution on notice of his claim, since the Circuit Court received actual notice of his demands by way of the September 19,1974, letter and the Circuit Court Clerk’s reply. This is all that is constitutionally required. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

It is equally true that his testimony concerning the prejudice he suffered was un-contradicted. Hopson testified that he had been prejudiced by the delay in that (1) he was denied access to minimum security facilities in New York because of the Alabama detainer; and (2) he was denied parole in New York because he had received no rehabilitation as a result of the Alabama detainer. The Supreme Court of the United States has recognized the possibility of distinctive forms of prejudice in cases concerning the speedy trial right of an accused who is incarcerated in another jurisdiction.

“At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer from ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the condition under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.” Smith v. Hooey, supra, 393 U.S. at 378, 89 S.Ct. at 577.

The majority relies on Sellers v. Alabama, No. 74-55-5 (M.D.Ala. filed December 4, 1974), where the trial court found that the defendant had made no effort to show that he had been prejudiced in any way by the delay in trying him. Unlike Sellers, however, we have before us a record which shows without contradiction that the defendant was denied access to minimum security facilities in New York because of the Alabama detainer; he received no rehabilitation as a result of the Alabama detainer and, consequently, was denied parole because he had received no rehabilitation.

The majority says we must ignore this record because the Court of Criminal Appeals found as a fact that the defendant had not been prejudiced by the delay and the defendant failed to challenge this finding by filing a motion under ARAP 39(k). I cannot agree with this treatment of the scope of our review. First, I think the finding of no prejudice made by the Court of Criminal Appeals is a legal conclusion reached'by that court. Surely we can review the record to determine whether that court reached the correct legal conclusion on uncontroverted facts. In fact, we have' frequently done so.

I think this record shows without contradiction that there was a delay of some five years in bringing the defendant to trial in Alabama; that delay was occasioned in part because he fled the jurisdiction and was subsequently incarcerated in New York. He demanded a speedy trial in Alabama; Alabama took some steps, but not all that were available, to bring him back for trial; and the defendant was prejudiced, as that term is defined by the federal cases, by the delay.

I, therefore, dissent.

JONES, EMBRY and BEATTY, JJ., concur.


author: HARRIS, Judge.

text:
    Theodis KIMBROUGH, alias v. STATE.
    6 Div. 537.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      E. Calhoun Wilson, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and his punishment fixed at thirty years and one day in the penitentiary. At arraignment, in the presence of his attorney, he pleaded not guilty. After conviction he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent him on this appeal.

Appellant did not testify nor did he offer any substantive testimony tending to show that he was not guilty. The case went to the jury on the evidence adduced by the State which showed that on the night of October 4, 1975, the Buzz Oil Station located on Ninth Street in Tuscaloosa, Alabama, was robbed by three black men. The indictment charged that $1,478.46 in cash, including a check in the amount of $93.16 drawn on Olympia Mills and cashed by the station on the day of the robbery, was taken by appellant. Only a part of the money and the check were recovered after the robbery. During the robbery the night manager, Artis Reese, was shot in the ankle.

As the robbers left the station, Zack Allen, an off-duty police officer, arrived at the scene and went into the station. An elderly black man told him that they had just been robbed and he saw Artis Reese on the floor and blood around him. Allen got back in his car and went in pursuit of the robbers. He was unable to apprehend the robbers but found the automobile in which they had been riding parked in a residential area with the door on the driver’s side open.

Subsequently, Sergeant James H. McDaniel, another police officer with the Tuscaloosa Police Department, was dispatched to assist in the robbery investigation. He saw a lone black male walking away from the Buzz Station on Ninth Street and Twenty-eight Avenue. McDaniel saw this man walk into a parking lot for City employees and stop by the side of a pickup truck. McDaniel drove into the parking lot, stopped and asked the man for identification. The man failed to produce any identification and the officer began to pat him down, and he felt something in the man’s jacket pocket, at which time the man shoved the officer and started to run. McDaniel drew his service revolver and ordered the suspect to stop. The suspect then backed up against the pickup truck and put an arm over into the bed of the truck. McDaniel shoved the suspect who started to run again. The officer ordered the suspect to halt and fired a shot into the air and another shot at the suspect’s feet when he failed to stop. The officer lost sight of the suspect running through a cemetery lot across the street from the parking lot. McDaniel then checked the bed of the truck and found a .25 caliber semi-automatic pistol and $407.16. This amount included the check drawn on Olympia Mills in the amount of $93.16 which had been cashed earlier that same day. The pistol was identified by the Assistant State Toxicologist, James C. Britton, as being the same pistol which fired projectiles recovered near the cash register at the Buzz Station.

Delethea Hawkins, the sister-in-law of two of the co-defendants, Dennis and Algie Hawkins, testified that she knew appellant and on the night of the robbery she saw him running from the Buzz Station and he was carrying what appeared to be a bag. She was riding in an automobile with her father-in-law and appellant came into full view of the headlights of the car. She was positive in her identification of appellant and further made a positive in-court identification of appellant.

Willie Ann Hawkins, wife of co-defendant Dennis Hawkins, testified that Theodis Kimbrough left his bicycle at her house the night of the robbery and never returned for it. She stated that appellant, her husband, and Ronnie Hawkins all left her house in a borrowed automobile around 9:00 p. m. the night of the robbery.

Now the scene changes. On March 5, 1976, in Mapleswood, a suburb of St. Louis, Missouri, Officers Ron Morton and Michael Club of the Mapleswood Police Department were investigating an automobile accident. At the accident scene, Officer Morton noticed a black male dressed in a heavy fur coat. Morton’s attention was drawn to the man because of the warm temperature, around fifty degrees. Defense counsel introduced evidence that the temperature was then 31 degrees. In addition to the heavy coat, Morton noticed that the man averted his gaze and that he had never seen him before in the neighborhood. Morton further testified that several businesses were in the area, among them new and used car dealerships. This was a high crime area with a high incidence of theft of radios, stereo tape players, and CB radios from the cars, and the cars as well.

Upon conclusion of their traffic investigation, Morton and Club drove down the street and stopped parallel to the-man Morton had observed. When asked for identification, the man presented the officer with an Alabama driver’s license, with the name Theodore Ogden on it. At that time Club ran a “NCIC” check and received a “hit” which revealed that Ogden, an alias of appellant, was wanted on a fugitive warrant originating at Kilby Prison in Alabama for escape, stemming from a 1969 robbery conviction.

As this dispatch was received, appellant ran from the police car. Morton and Club fired warning shots, but appellant did not stop. The officers were unable to apprehend him.

Later that night, Harvey Kneznehoff, also of the Mapleswood Police, having received a description of appellant, saw appellant and called to him. Kneznehoff patted down the appellant and checked his billfold for identification when appellant told him he had no identification. Having found out this was the subject he was told to look out for, Kneznehoff placed appellant under arrest and read him his Miranda rights. Appellant stated he understood these rights.

Subsequently, Kneznehoff contacted Officers Morton and Club, telling them that he had apprehended the subject who had fled from them earlier in the evening. Approximately two hours later at 6:00 or 7:00 a. m., Kneznehoff received another NCIC “hit” stating that appellant was wanted in Tuscaloosa for assault with intent to murder and robbery, from which the present case arose.

Kneznehoff then informed appellant of the charges against him in Tuscaloosa. Appellant told him that he had been “sold out” by his buddies. Appellant said he was present at an armed robbery in Tuscaloosa and that a man had been shot. He denied that he received any money from the robbery and denied that he had shot the man. Appellant said he ran after the robbery and got in a fight with “some sheriff’s deputy,” that he had knocked him down and had run. He stated the officer shot at him. Appellant continued by saying that people had been shooting at him all his life.

Officer Morton also questioned appellant concerning the robbery in Tuscaloosa. Appellant stated he had participated in the robbery of a gas station with two other people. He also stated that he had been shot at by a policeman who came upon him while he was trying to hide the gun and the money from the robbery in a truck.

Appellant moved to suppress the admission into evidence of his statements to the Missouri police officers outside the presence of the jury. Appellant contended that there was no probable cause to stop and question him. The trial court denied this motion and appellant claims that this was error.

The United States Supreme Court held in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) that a police officer may in appropriate circumstances and in an appropriate manner approach a person for investigating possible criminal behavior even though there is no probable cause to arrest. Of course the police officer must be able to point out “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

Here, appellant was seen by Officers Morton and Club, walking alone in a business district which was known to police as a high crime area. The record reflects that car dealerships in that area had suffered from a rash of thefts of parts and cars. It is not material that there is a dispute as to the temperature on that evening, relating to appellant’s wearing a heavy coat. As one officer said, the coat was bulky enough to conceal stolen auto parts, or a shotgun. Appellant’s constitutional rights were not violated and the trial court did not err in denying appellant’s motion to suppress.

After the trial court determined that appellant’s statements were admissible, the jury returned and testimony concerning the arrest of appellant and his subsequent statement were heard.

The following transpired during the testimony of Officer Kneznehoff:

“Mr. Smith: All right sir. When you were given the description, were you informed of the dispatch concerning him?
“A: Yes, sir.
“Q: And what would that have been about?
“A: ... He was wanted as a fugitive _ _ .
“Mr. Burns: We object.
“The Court: Overrule.
“Mr. Burns: Except.
“A: He was wanted by the State of Alabama as a fugitive from Kilby Correctional Institution.
“Mr. Burns: Judge, we object.
“The Court: Overrule.
We move for a mistrial. “Mr. Burns:
Overrule motion for a mis-“The Court: trial.
“Mr. Burns: We except.
“The Court: Just a minute. I am going to sustain the objection to the subject being wanted by Kilby Correctional Institution. Please disregard any such testimony ladies and gentlemen.”

During the testimony of Officer Ron Morton the following occurred:

“Mr. Smith: Now going further, did you have any conversation at that time with the defendant concerning his leaving the State of Alabama?
“A: Yes . . .1 made the comment to him, ‘Well, I guess you will be going back to Alabama now.’
* Hi * * * *
“A: Well, he said, he didn’t make a statement. He asked me the question, ‘If you were a nigger and you had already done four years on an Alabama Road Gang and you committed another robbery, would you want to go back?’ ”

Counsel again objected and moved for a mistrial again. The Court overruled appellant and admitted the testimony on the question of flight.

Morton also testified that appellant stated he would even shoot a policeman to keep from going back to Alabama. Again counsel objected and was overruled.

Appellant contends it was error to admit evidence of his past criminal history. As appellant maintains, it is not competent to prove one crime by proving another and that evidence of defendant’s commission of another crime unrelated to the crime charged is inadmissible. Brantley v. State, 294 Ala. 344, 317 So.2d 345, on remand, 55 Ala.App. 717, 317 So.2d 347, cert. den. 294 Ala. 346, 317 So.2d 348.

However, it should be noted that the trial court instructed the jury to disregard the testimony concerning appellant being a fugitive. This cured any error made by the original admission into evidence. Gavin v. State, 52 Ala.App. 469, 294 So.2d 169, cert. den. 292 Ala. 722, 294 So.2d 170. Where the trial court instructed the jury to disregard testimony by a prosecution witness that the defendant was out on parole for a prior offense at the time the presently charged crime was committed, this Court held there was no error. Coe v. State, 53 Ala.App. 457, 301 So.2d 223.

As to the reference made by the appellant to his criminal record in a statement to Officer Morton, there was no error in admitting the statement in evidence. Appellant cited Monk v. State, 258 Ala. 603, 64 So.2d 588, for the proposition that such a statement is inadmissible. The Alabama Supreme Court held it was error to permit a police officer to testify to a conversation with defendant in which defendant stated he was already under a sentence of 208 years at the time he committed the charged crime. The Court noted that such testimony probably induced the jury to impose the death penalty. Of course, there is a much stricter standard of review in death penalty cases. Easley v. State, 246 Ala. 359, 20 So.2d 519; Alberson v. State, 254 Ala. 87, 47 So.2d 182.

Appellant also contends that Sims v. State, 253 Ala. 666, 46 So.2d 564, is controlling in this situation. There the Supreme Court stated:

“We think a good statement of the rule is that if the confession indicates that accused has committed a separate offense it should be excluded by the court if its separation is possible, leaving the balance intelligible, unless it tends to prove accused guilty of the crime charged, or the motive for its commission, or where such part tends to explain the remaining portion of the confession.”

Appellant’s statement, however, does tend to prove him guilty of the crime charged. Appellant told Officer Morton, “Would you want to go back if . you committed another robbery . . .”

In addition to this, appellant’s statement concerns his flight to avoid prosecution. It is well established that the State may prove that the accused was engaged in flight to avoid prosecution. Pierce v. State, 51 Ala.App. 166, 283 So.2d 618.

Here appellant stated he would go so far as to kill a police officer to prevent his return to Alabama. It is apparent that appellant’s statement shows consciousness of guilt and reveals motivation for flight, e. g. awareness of the consequences of commission of a crime. There was no error in admission of this statement in evidence.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Theodis KIMBROUGH.
    No. 77-99.
    Supreme Court of Alabama.
    Dec. 9, 1977.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON and BEATTY, JJ., concur.

JONES and EMBRY, JJ., dissent.


author: ADKINS, Acting Chief Justice.

text:
    ROWE CORPORATION, Employer, and Travelers Insurance Company, Carrier, Petitioners, v. James Melvin DUPREE, and the Florida Industrial Relations Commission, Respondents.
    No. 50589.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Roger M. Sherman, of Beggs & Lane, Pensacola, for petitioners.
    E. Douglas Spangler, Jr., of Michaels & Spangler, Tallahassee, for respondents.
   ADKINS, Acting Chief Justice.

By petition for writ of certiorari, we have for review a decision of the Industrial Relations Commission which upheld a decision of the Judge of Industrial Claims. We have jurisdiction, pursuant to Article V, Section 3(b)(3), Florida Constitution.

In its determination of the cause, the Judge of Industrial Claims relied specifically upon Ferguson v. Mims and Thomas Manufacturing Co., IRC No. 2-2845 (September 23, 1975), which was reversed by this Court in Mims and Thomas Manufacturing Co. v. Ferguson, 340 So.2d 920 (Fla. 1976).

Accordingly, the petition for writ of cer-tiorari is granted, the order of the Industrial Relations Commission is quashed, and the cause remanded to the Industrial Relations Commission for further proceedings consistent with our opinion.

It is so ordered.

BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


author: PER CURIAM.

text:
    Joseph Patrick HALEY, Petitioner, v. STATE of Florida, Respondent.
    No. 51322.
    Supreme Court of Florida.
    Nov. 10, 1977.
    Richard L. Jorándby, Public Defender, West Palm Beach, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for respondent.
   PER CURIAM.

This case is before the Court under its conflict certiorari jurisdiction as provided by Article V, Section 3(b)(3), Florida Constitution, and Fla.App. Rule 4.5 c.(6).

After hearing argument, we are of the opinion that the writ of certiorari heretofore granted in this cause should now be discharged. Accordingly, the writ of certio-rari is discharged.

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


author: ENGLAND, Justice.

text:
    MIAMI HERALD PUBLISHING COMPANY, a division of Knight-Ridder Newspapers, Inc., Al Messerschmidt and Gore Newspapers Company, Appellants, v. The Honorable Paul M. MARKO, Circuit Court Judge, Appellee.
    Nos. 50192, 50266.
    Supreme Court of Florida.
    Nov. 17, 1977.
    Parker D. Thomson and James D. Spa-niolo of Paul & Thomson, Miami, John W. Fleming of Fleming, O’Bryan & Fleming, Fort Lauderdale, and Robert L. Shevin, Atty. Gen., James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., Tallahassee, for appellants.
    Bruce M. Lyons of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauder-dale, Andrew I. Friedrich, West Palm Beach, and John D. O'Donnell of Panza, O’Donnell & Jacobson, Fort Lauderdale, for appellee.
   ENGLAND, Justice.

We have for review by direct appeal a final order entered by the Broward County Circuit Court which initially and directly upheld the validity of Section 905.28(1), Florida Statutes (1975). At issue is the constitutionality of the statutory scheme which allows the repression of “improper and unlawful” statements in a grand jury presentment relating to an individual against whom no indictment or true bill has been voted. The statute provides:

“(1) No report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment shall be made public or be published until the individual concerned has been furnished a copy thereof and given 15 days to file with the Circuit Court a motion to repress or expunge the report or that portion which is improper and unlawful.”

On June 16, 1976, the Broward County Grand Jury presented to Circuit Judge Paul M. Marko an Interim Grand Jury Report which named John Roger Fix and John Cox, two Florida Highway Patrolmen, as central figures in an investigation of the fatal shooting of J. W. Nimmo. Neither patrolman was indicted, but the Report described acts of misconduct by the patrolmen in the performance of their duties and offered apparently critical recommendations.

Acting under Section 905.28(1), each patrolman timely filed a motion to repress certain portions of the Report on the ground that the challenged portions were “improper and unlawful”. Following a hearing on these motions at which appellants were granted standing to participate, the judge released for publication three of the Report’s four pages. He repressed the only other page because seven words on it “constitute a recommendation” which “is not a ‘fair’ report”, and “the Court cannot strike the [seven] words . . . without destroying the entire meaning of page 4

The material allowed to be made public is fairly summarized in appellants’ brief as follows:

1. Pursuant to an unauthorized investigation the Highway Patrolmen entered an apartment where J. W. Nimmo and three other black men were found engaged in actual or constructive possession of illegal drugs;
2. Patrolman Fix in attempting to effectuate an arrest and in reasonable belief that he was threatened, fatally shot Nimmo, the homicide being justifiable;
3. After the fatal shooting Patrolman Fix decided to plant a handgun near the body of Nimmo, but was persuaded by Patrolman Cox not to do so;
4. Patrolman Cox did not mention the intended planting of the gun to investigating officers;
5. The actions of the Highway Patrolmen were taken at a location outside their normal assigned work stations, Patrolman Cox was elsewhere than he had reported, and the investigation by the Highway Patrolmen was not within their normal duties and unauthorized.

Appellants contend that the statute is basically in conflict with the First Amendment of the United States Constitution and Article I, Section 4 of the Florida Constitution, in that it denies access to public information and thereby impinges on the rights of a free press. Relying principally on our opinion in Morgan v. State, 337 So.2d 951 (Fla.1976), appellants argue that free press rights must predominate over other constitutionally protected interests (such as the right to privacy), unless those other constitutionally protected interests are “substantial, imminent and subordinating”. They suggest, of course, that no such compelling circumstances are present here.

In support of Judge Marko’s repression ruling and in defense of the statute, the patrolmen assert a constitutional right of privacy. They suggest that any right of public access to the written findings of a grand jury is outweighed by their individual right to protect their reputations from unfounded and improper scandal and abuse. For this proposition they rely principally on our opinion in State ex rel. Brautigam v. Interim Report of Grand Jury, 93 So.2d 99 (Fla.1957).

Appellants suggest alternately that we need not resolve the conflict of alleged constitutional rights asserted here because a less drastic resolution of the case is available. They agree with the Attorney General that the statute can be cured of any potential defect simply by placing a limiting construction on the terms “improper and unlawful”. The construction they suggest is that “unlawful” means outside the lawful ambit of grand jury authority, and that “improper” connotes a report of matters which lack a factual foundation in the record.

An analysis of the constitutional claim asserted by the patrolmen presents no barrier to our upholding the statute as appellants suggest. For one thing, there is no constitutional right of privacy to the extent here asserted. For another, the reliance of the patrolmen on Brautigam is not completely justified. Notwithstanding the broad sweep of language contained in that opinion, there is little parallel between that case and this. Three major differences appear. First, in this case the matters repressed were described by the trial judge as unfair recommendations of the grand jury, whereas in Brautigam the matters disclosed were equated with indictable crimes for which no indictment had been returned. Second, in this case the information reported by the grand jury will forever be barred from public view under the trial judge’s ruling, while in Brautigam the information had already been made public before repression was attempted. Third and most significantly, Brautigam was decided in the context of inherent judicial power to suppress judicial records, while this case tests the patrolmen’s repression rights against explicit statutory standards.

Stripped to its essentials, then, this case does not implicate the Constitution. It requires only a construction of the presentment statute and an analysis of the underlying rationale which has led the legislature to conclude that some limitation, other than judicial oversight, should be imposed on the discretion of a grand jury to report its findings.

In considering whether statements in a “no indictment” grand jury report can be repressed on the ground that public officials may be exposed to criticism, scorn, or recommendations unfavorable to their reputation, it is essential to bear in mind the context in which the issue arises. Unlike the opportunity for refutation which is available when adverse character or reputa-tional matters are disclosed during the course of a public trial, there is no comparable opportunity to challenge grand jury report disclosures contemporaneously with their publication. These matters emerge from a grand jury process which has operated in secrecy, under the guidance of a prosecutor and the supervision of a judge to be sure, but where there has been no right to challenge witnesses or to be represented by counsel. It is possible, then, that the testimony and information presented to a grand jury, on which they must rely and report, is potentially one-sided and inaccurate. Thus, while one charged with the commission of a crime as a result of this process has a full opportunity for public clarification of misleading data and personal vindication through a public trial, no comparable means of vindication exists for one whose character is impugned in a report unaccompanied by indictment. It is undoubtedly for this reason that the legislature has now afforded an opportunity to prevent the publication of unfavorable material through the repression of matter that is “improper and unlawful”.

This background provides a frame of reference for analysis of the two statutory limitations imposed on the reportorial privilege afforded grand jurors — that their reports be both “lawful” and “proper”.

Lawful. As to the first, no one in this proceeding challenges the broad sweep of powers conferred on grand juries to investigate either specific instances of criminality or general activities of public institutions and personnel, and no one challenges the lawful nature of this grand jury’s investigation into circumstances surrounding the death of J. W. Nimmo at the hand of a police official. Counsel for the patrolmen concede both that the 1976 Spring Term Grand Jury could lawfully inquire into alleged police misconduct, and that its inquiry was lawfully performed. There is, then, no controversy between counsel concerning the first statutory criterion, either as to its proper construction or its applicability in this case. We accept appellants’ formulation as the proper definition of that term in this statute.

Proper. The patrolmen focus their case for repression on the second statutory criterion, essentially arguing that the published recitations of the Report concerning alleged misconduct reach the outer limits of what a grand jury report without indictments can contain and that any further statements regarding that misconduct, or any recommendations short of the return of criminal indictments, would be “improper”. They argue, essentially, for a definition of “proper” which goes beyond mere legal propriety and incorporates considerations of “fairness” to persons discussed in a report. In our view, the precision of the statute precludes adding the refinement which the patrolmen suggest.

We recognize, of course, that the line which appellants ask us to draw between “proper” and “improper” material is not easily announced, and that we cannot here define for all situations the perimeters of permissible and impermissible commentary. Like so many other matters which come to the courts, we can only give content to the legislative directive by evaluating it in the context of the factual situation before us. What is clear, however, is that the focus of judicial inquiry on a motion to repress under this statute does not turn on some amorphous notion of “fairness”, but must be addressed to the germaneness and factual foundation of the particular recommendations contained in a report.

The reasons for our reading of the statute proceed from the fact that Florida grand juries are not confined to an indictment function, as is generally the case under federal law. Our grand juries have been given the right to express the view of the citizenry with respect to public bodies and officials in terms of a “presentment”, describing misconduct, errors, and incidences in which public funds are improperly employed. It is inevitable under these circumstances that public officials will be subject to criticism and that, at a minimum, their private reputations will be exposed to opprobrium. In a broad sense, that is not “fair”.

Obviously, the legislature has elected not to eliminate the potential for citizen criticism of public officials; rather it has chosen to confine those criticisms to matters which emerge from a lawful inquiry and are not “improper”. There is eminent good sense in appellants’ suggestion that this latter limitation means only that comments in a grand jury presentment must have a factual foundation in, and be germane to, the scope of proceedings for which the grand jury was convened. A report may be “proper” by all objective standards but appear “unfair” to some observers. The notion of unfairness is highly subjective, however, and we fail to discern any legislative directive to add that dimension to the more objective standards specifically set out in the statute.

A reading of the sealed portions of the grand jury report indicates that the materials identified as “unfair" did not offend the statutory test of propriety which must be applied. The repressed portions were nothing more than the grand jury’s recommendation that the two officers were unfit to serve as highway patrolmen, and that administrative proceedings should be conducted to have them removed from office. The exact text of the repressed portion, with the “unfair” words underscored, reads as follows:

“and that John Roger Fix, notwithstanding the abandoning of his aforesaid intention to alter the appearance of said apartment, and John Harold Cox, Jr., notwithstanding the disclosure at a later time of his knowledge of the acquisition of said handgun by John Roger Fix, do not possess those qualities which all the citizens of the State of Florida deserve and are entitled to expect from an individual who is charged with, and who assumes, the heavy responsibility of enforcing the laws of the State of Florida, and therefore, your Grand Jury hereby specifically recommends to the Department of Highway Safety and Motor Vehicles that the said John Roger Fix and John Harold Cox, Jr., be dismissed as members of the Florida Highway Patrol, and that the said Department of Highway Safety and Motor Vehicles forthwith conduct an administrative hearing with all constitutional rights afforded for the expressed purpose of terminating the services of the said John Roger Fix and the said John Harold Cox, Jr., as Florida highway patrolmen.”

There was nothing improper either in an observation by Broward County citizens that these highway patrolmen are not fit to continue as law enforcement officials, or in a recommendation that administrative proceedings should be conducted to curtail their tenure. These recommendations were consistent with the Report’s general recitations regarding their conduct in the Nimmo shooting. In fact, we have previously held that a grand jury may legally recommend the removal of public officials.

This case illustrates the danger of stan-dardless repression grounded solely on considerations of “fairness”, and it manifests the legislature’s wisdom in setting more precise standards. Trial judges are poorly situated to evaluate possible reputational damage on the basis of what is or is not “fair” to public officials brought before grand juries. Often officials charged with misconduct will be members of the same community in which the evaluating judge sits, compounding the subjectivity of a “fairness” test. If the judicial inquiry is narrowed, however, to the legitimacy of the grand jury proceeding, the factual foundation for the subject matter included in the report, and the germaneness of the reported material to the purpose for which the grand jury was convened and given investigative authority, judicial officers can comfortably employ in these proceedings the same decision making techniques which they use in other judicial inquiries. Moreover, the balance between public officers’ “privacy” and the public’s general right to know will be struck, in compliance with legislative guidelines, without concern either for personalities or for the necessity of confronting constitutional standards. It follows from all this that the legislative solution now makes it unnecessary to resort any longer to the judicially-crafted standard which was developed in the absence of legislation.

Through all that has been written in praise or in condemnation of the grand jury as a legal institution, most agree that it continues to perform a desirable function “both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action.” A society governed by representative officials concomitantly requires citizen review of public action. The grand jury has proven a most effective and reliable mechanism for that purpose. Lay participation in periodic review of the performance of public officials and institutions also tends to foster understanding and respect for the government which has been created by and for the people.

The benefits to be derived from this extraordinary exercise in citizen participation would be severely limited if the fruits of that activity were not available to the public on whose behalf it is undertaken. Implicit in the power of the grand jury to investigate and expose official misconduct is the right of the people to be informed of its findings. While public disclosure of grand jury findings inevitably entails the risk of reputational damage, the legislature has ensured that any potential harm to public officeholders will be the product of their own conduct, and not the consequence of an unrestrained body of misguided citizens.

For these reasons, the order of the trial court is affirmed insofar as it upheld the validity of Section 905.28(1), Florida Statutes (1975); but under the limiting construction given that statute by this decision, that part of the order granting the motion to repress must be reversed. The case is remanded to the trial court for further action consistent with this decision.

It is so ordered.

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

      . Jurisdiction is vested in this Court pursuant to Art. V, § 3(b)(1) of the Florida Constitution. Although subsection 905.28(2) expressly directs review of circuit court rulings under this statute in the district courts of appeal, the. constitutional directive for review (“The supreme court: (1) Shall hear appeals from . . orders of trial courts . . . initially and directly passing on the validity of a state statute . . . .”) overrides any contrary direction in the statute. No one challenges our jurisdiction to review the trial court’s decision in this case.

      . Appellants are two newspaper publishers and a reporter for one of the papers. As they were made parties to the proceeding by the trial judge at an early stage, there is no procedural problem in this case such as vexed the Court in State ex rel. Miami Herald Publ. Co. v. McIntosh, 340 So.2d 904 (Fla. 1977), and English v. McCrary, 348 So.2d 293 (Fla.1977).

      . The Attorney General appears in defense of the constitutionality of the statute pursuant to § 16.01, Fla.Stat. (1975), and the decision of this Court in State ex rel. Shevin v. Kerwin, 279 So.2d 836 (Fla. 1973).

      . The “constitutional” right of privacy has generally been narrowly confined to matters of marital intimacy, procreation and the like. See Laird v. State, 342 So.2d 962 (Fla. 1977).

      .Appellants suggest that vindication can be achieved through a public hearing on the question of repression. The legislature has chosen a different method, however, and it is not our prerogative to select another alternative.

      . A similar opportunity, although formulated in terms of “fairness”, existed under the court’s inherent power over its own process. See State ex rel. Brautigam v. Interim Report of Grand Jury, 93 So.2d 99 (Fla.1957).

      . § 905.16, Fla.Stat. (1975), charges the grand jury with the duty to “inquire into every offense triable within the county for which any person has been held to answer, . . . and all other indictable offenses triable within the county that are presented to it . . . or otherwise come to its knowledge.” Grand jury investigations also properly extend beyond the realm of criminal activity to encompass “every offense that affected the morals, health, sanitation, and general welfare,” including “institutions, buildings, offices, and officers.” In re Report of Grand Jury, 152 Fla. 154, 158, 11 So.2d 316, 318 (1943). See also State v. Clemmons, 150 So.2d 231 (Fla.1963); Ryon v. Shaw, 77 So.2d 455 (Fla. 1955); Owens v. State, 59 So.2d 254 (Fla. 1952).

      . In re Grand Jury Proceedings, 479 F.2d 458 (5th Cir. 1973), involving a federal grand jury’s investigation into state law violations, illustrates “unlawful” grand jury activity.

      . The patrolmen do not deny that the repressed portions of the Report are based on facts developed in the grand jury’s lawful inquiry, or that the matters reported pertain to the patrolmen’s misconduct.

      . Perhaps the difference can be illustrated. If a grand jury was authorized to investigate a homicide, it would be free to return a presentment, with or without indictments, which not only describes the result of their investigation, but which recommends future action to avoid misconduct by public officials of the type found to exist in the matter investigated. The jury would, by this means, reflect the community’s legitimate concern for proper law enforcement. It would be “improper”, however, for the same grand jury to castigate the governor for choosing to assign a particular state attorney to conduct the investigation.

      . See United States v. Briggs, 514 F.2d 794, 803 n.14 (5th Cir. 1975), where the court noted that “the practice of using presentments has disappeared in the federal system . . .

      . See, for example, Owens v. State, 59 So.2d 254, 256 (Fla. 1952) (“It is not required that [public employees and officials] be charged with crime or irregular conduct, [since] if they are incompetent or lax in the performance of the duty imposed on them . . . the Grand Jury has a right to investigate and make a fair report of its findings.”) See also Note, Grand Jury Presentments: Protection of the Vindicated, 12 U.Fla.L.Rev. 330 (1959).

      .In fact, partly as a result of these revelations one highway patrolman resigned and the other was suspended from office.

      . In re Report of Grand Jury, 152 Fla. 154, 11 So.2d 316 (1943), where this Court refused to order expungement of a grand jury recommendation to the Governor that a corrupt constable be removed from office.

      . See, e. g., State ex rel. Brautigam v. Interim Report of Grand Jury, 93 So.2d 99 (Fla. 1957). The repression statute, enacted as Chapter 73-194, Laws of Florida, took effect on October 1, 1973.

      . United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

      . Cf. Art. V, § 12(a)(3), Fla.Const.

      . The government, after all, is the people’s. Art. I, § 1, Fla.Const.


author: BARKDULL, Judge.

text:
    The FINANCIAL MARKETING GROUP, INC., Applicant for Registration as Dealer, and Marvin Leo Popkin, Applicant for Registration as Executive Officer, Petitioners, v. STATE of Florida, DEPARTMENT OF BANKING AND FINANCE, DIVISION OF SECURITIES, Respondent.
    No. 77-189.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for petitioners.
    Eugene J. Celia and Ryland Terry Rigs-by, Tallahassee, for respondent.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   BARKDULL, Judge.

Petitioners seek review of an order of the respondent, denying the petitioners’ application for a Florida securities dealer’s license pursuant to Section 517.12, Florida Statutes. This will be treated as a certiorari per Yamaha International Corporation v. Ehrman, 318 So.2d 196 (Fla. 1st D.C.A. 1975).

On June 30, 1975, The Financial Marketing Group Inc. applied for a securities dealer’s license and the petitioner, Marvin Leo Popkin, applied for the position of executive officer of Financial Marketing for securities. They were notified by the State agency of its intention to refuse registrations and administrative charges and complaint, contending Popkin falsified or concealed material facts on his application. It was alleged Popkin failed to disclose a material fact, to wit: that he had been a registered principal broker for Financial Resources Corp. Thereupon, petitioners sought administrative relief, alleging that Popkin was never employed nor served as a registered mortgage broker for Financial Resources Corp. At hearing, the petitioners presented their evidence and the respondent stood moot. Thereafter, the hearings officer found that Popkin had not falsified or concealed a material fact, and recommended the request for license be granted.

Section 120.59, Florida Statutes, required the respondent to render its final order within 90 days after issuance of the recommended order by the hearings examiner. The respondent did not comply therewith but, some 295 days after the recommended order was issued, it issued its own order overturning the hearings examiner and denied the application. This ruling was made without benefit of a transcript upon which the hearings examiner’s order was predicated, as said transcript was not prepared until after the respondent entered its order. The petitioners then moved for rehearing. While that motion was pending, they filed the instant petition for writ of certiorari.

The petitioners contend, among other things, that the respondent erred by failing to timely render its final order within 90 days, in violation of Section 120.59, Florida Statutes, and that it further erred in reversing the hearings examiner without having a transcript of testimony before it.

As to the first alleged error, we agree that the language of the statute is mandatory and the respondent should have rendered its final order within 90 days after the recommended order was submitted by the hearings examiner. The statute does not provide a penalty for violation of this section, and the petitioners urge that the penalty should be that the licenses, as required by the petitioners, should issue. We certainly agree that the State agencies should follow mandates of the Legislature. We further observe that the regulatory agencies should not frustrate a citizen’s attempt to secure a license to pursue a vocation or profession by inaction. If there were no other basis to reverse the agency’s action under review, we might adopt the penalty suggested by the petitioners and require the issuance of the licenses because of the failure of the respondent to follow the mandatory provisions of Section 120.59, Florida Statutes. However, we find the second point urged as error by the petitioners to also be well-taken and, therefore, we reverse or quash the action of the respondent in declining to follow the recommended order of the hearings examiner when it did not have the full transcript of the proceedings before said examiner before it. Deel Motors, Inc. v. Department of Commerce, 252 So.2d 389 (Fla. 1st D.C.A. 1971); Section 120.57(1)(b)(9), Florida Statutes (1975). The respondent urges that it did not need a transcript of the evidence to reverse the recommended order as to conclusions of law. In this it might be correct but, by the very wording of the recommended order and the order of the respondent reversing same, it apparently reversed findings of fact and this it could not do without a transcript of the evidence before it.

Therefore, the order of the respondent reversing the recommended order of the hearings examiner, be and the same is hereby reversed, with directions to approve the order recommended by the hearings examiner.

      . The filing of the petition constituted an abandonment of the undisposed of petition for rehearing. State v. Turnpike Authority, 134 So.2d 12 (Fla. 1961); Scott-Whitaker Company, Inc. v. Joyce Properties, Inc., 155 So.2d 661 (Fla. 3rd D.C.A. 1963).


text:
    Frank KNIGHT and Mary B. Knight, Appellants, v. Arlene EDWARDS, as Administratrix of the Estate of Norman Edwards, Deceased, Appellee.
    No. 76-847.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 1977.
    Rehearing Denied Dec. 20, 1977.
    Marc Cooper of Greene & Cooper and Rollo E. Karkeet, Miami, for appellants.
    Joel Miller of Miller, Squire & Braver-man, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

At the oral argument of this case counsel for the appellee conceded that the judgment entered against the appellant, Mary B. Knight, was not supported by the record. We agree but find no other error. Accordingly, the judgment is hereby modified so that the total damages included therein of $47,791.32 are assessed against Frank Knight; and the judgment against Mary B. Knight is hereby vacated.

AFFIRMED as modified.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.


author: ALDERMAN, Chief Judge.

text:
    Hector Francisco TOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 76-2242.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Dec. 20, 1977.
    William E. Johnson of Parker, Conrad, Falkowski, Johnson & Owen, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

The defendant appeals his conviction and sentence for grand larceny. The only issue is whether there was a valid waiver of jury trial on behalf of the defendant. We find that there was not and reverse.

The following discussion occurred at the beginning of the trial:

THE COURT: Is the State ready?
MR. THOMPSON (Prosecutor): The State is prepared to go forward, Your Honor.
THE COURT: Are the defendants ready, Mr. Fath?
MR. FATH (Defense counsel): The defendants are before the Court ready for trial.
THE COURT: All right. Gentlemen, I understand it is the defendants’ desire to have a non-jury trial.
MR. FATH: That is correct, Your Hon- or.
THE COURT: Mr. Fath, I assume you have acquainted your clients with the constitutional right to a jury trial.
MR. FATH: I have, Sir.
THE COURT: All right. Mr. Thompson, do you so join in that motion with Mr. Fath?
MR. THOMPSON: Your Honor, the State would join in that motion that this would be a non-jury trial.
THE COURT: All right. I want that affirmatively reflected in the record at this time.

No inquiry was made of the defendant, nor did he sign a written waiver of his right to a jury trial.

Our Constitution provides that “the right of trial by jury shall be secure to all and remain inviolate.” Article I, Section 22. An accused person is thereby assured the right of trial by jury, but inherent in the constitutional right is the right to waive it. State v. Garcia, 229 So.2d 236 (Fla. 1969). The manner by which a waiver may be accomplished is set out in Fla.R.Crim.P. 3.260: “A defendant may in writing waive a jury trial with the consent of the State.” The defendant in this case did not in writing waive his right; we have only an oral waiver by defendant’s counsel and the agreement of the State. Obviously this does not comply with the requirement of Rule 3.260.

Is it possible for a defendant to give a valid waiver not in writing? The court in Jones v. State, 155 Fla. 558, 20 So.2d 901 (1945), by way of dicta suggests that an oral waiver of jury trial by defense counsel, even though not made in conformity with the statute (Section 912.01, Florida Statutes 1941), is sufficient to constitute a lawful waiver. In the present case we do not say that there may never be a valid oral waiver of jury trial by a defendant. We do hold, however, under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant’s concurrence in his counsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver. Compare: State v. Garcia, supra; Quartz v. State, 258 So.2d 283 (Fla. 3d DCA 1972); Kinser v. State, 291 So.2d 80 (Fla. 3d DCA 1974); Wallace v. State, 319 So.2d 117 (Fla. 3d DCA 1975); Harris v. State, 342 So.2d 97 (Fla. 3d DCA 1977).

REVERSED and REMANDED.

DOWNEY and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Raymond HUDANICH, Appellant, v. Joan HUDANICH, Appellee.
    No. 76-2032.
    District Court of Appeal of Florida, Fourth District.
    Oct. 25, 1977.
    Rehearing Denied Dec. 20, 1977.

      R. T. Shankweiler and H. T. Maloney of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellant.
    S. Robert Zimmerman, Pompano Beach, for appellee.
   DAUKSCH, Judge.

Appealed is an Order denying a Petition for Modification of a Final Judgment in a dissolution case.

The Petition seeks an “Order of Modification reducing the alimony, child support or marital home obligations, or any or all of the same.” In the Final Judgment’ the court had required the husband to pay alimony, child support and house payments, among other things. The Final Judgment also gave the exclusive right of occupancy of the marital home to the wife as long as she is unmarried and has custody of the child. It is obvious the husband was seeking only a reduction in the amount of his monthly payments because of the above quoted prayer and the allegations of reduced ability to pay in the allegata portion of the Petition for Modification. Nevertheless, the court ordered:

“1. Husband’s Petition for Modification is denied.
“2. This determination is without prejudice to the filing of a separate lawsuit for Partition by either of the parties as they may be advised.”

The second numbered paragraph in the Order must be stricken because it has no effect on the relationship between the parties as concerns the home; it only serves to confuse. The husband did not seek a modification of the Final Judgment as to exclusive occupancy or ownership of the house, so an order in that regard is unwarranted.

As might be expected the husband filed a suit for partition which is pending below, although abated in anticipation of this opinion. The reason set out in the Order of abatement is that the property is “non-par-titional.” This is correct. Hoskin v. Hoskin, 329 So.2d 19 (Fla.3d DCA 1976).

Although the words in the appealed Order are surplusage, they have caused the parties to be uncertain so we order them stricken. With the words “This determination is without prejudice to the filing of a separate lawsuit for Partition by either of the parties as they may be advised” stricken the Order appealed from is affirmed.

AFFIRMED AS MODIFIED.

CROSS and DOWNEY, JJ., concur.


text:
    WARD AIR CONDITIONING CO., a Florida Corporation, Appellant, v. Max A. MOGUL, Appellee.
    No. 76-2139.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Dec. 20, 1977.
    John M. Robertson of Robertson, Williams, Duane & Lewis, P. A., Orlando, for appellant.
    O. H. Eaton, Jr., of Brock, Massey, Walden, Baum & Eaton, Altamonte Springs, for appellee.
   PER CURIAM.

We believe the second amended complaint of the appellant stated a cause of action and should not have been dismissed. See Snead Construction Corp. v. Parkway East, Inc., 324 So.2d 206 (Fla.3d DCA 1975). Accordingly, the order of dismissal entered by the trial court is reversed.

ANSTEAD and DAUKSCH, JJ., concur.

CROSS, J., dissents without opinion.


author: DAUKSCH, Judge. ANSTEAD, Judge,

text:
    Johnny William MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 76-1406.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Dec. 20, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard and James K. Green, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The Appellant was charged with grand larceny by stealing “approximately $142 of the value of more than $100.00.” He was convicted as charged. He complains the trial judge erred in refusing to charge the jury on the law concerning petit larceny. The trial judge refused because he said Appellant was charged with stealing more than $100 and the only proof was more than $100 therefore no instruction on petit larceny was necessary. No doubt the trial judge considered Brown v. State, 206 So.2d 377 (Fla. 1968), and particularly categories three and four defined therein. The question is whether petit larceny is a category three; a necessarily included crime within grand larceny or a category four; a possibly included crime under grand larceny.

We hold that petit larceny is a necessarily included offense under grand larceny. It is impossible to steal $100 or more without having first stolen less than $100. In Brown, supra, the defendant was charged with robbing $68 and our Supreme Court reversed because the trial court refused to give an instruction on larceny. In Brown, supra, the evidence was clear that the defendant did what was charged — “At gunpoint, he forced the cashier to turn over to him the contents of the cash register.” Here it is clear the Appellant took, or aided in taking,- more than $100.

In State v. Terry, 336 So.2d 65, 67 (Fla. 1976), the evidence was clear, even the defendant said so, that the defendant shot the victim. The State charged assault with the intent to commit Murder I. The trial court refused to instruct the jury on assault and battery and bare assault. Our Supreme Court reversed, saying,

“ . . . it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault. Therefore, if the trial judge . . . found sufficient evidence to instruct the jury on the major offense of assault with intent to commit murder in the first degree, he should have instructed the jury on the necessarily included offense of bare assault.”

See also Moore v. State, 341 So.2d 814 (Fla.2d DCA 1977), where our Second District followed Terry and said the trial judge must charge assault with intent to commit robbery in a robbery case.

We have not overlooked Gilford v. State, 313 So.2d 729 (Fla.1975), but find the dissent more persuasive, the case not followed, and Terry, supra, later and better.

REVERSED and REMANDED for a new and proper trial.

DOWNEY, J., concurs.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

In my opinion, there is no way that this case can be distinguished from the case of Gilford v. State, 313 So.2d 729 (Fla.1975) wherein the Florida Supreme Court held at page 732:

The particular holding in Brown was that the proof of the lessor offense “necessarily” was shown by proof of the greater, e. g., armed robbery which is also obviously proof of an assault which becomes a classic “necessarily included offense” on which a charge (instruction) must be given. There the proof inheres in the evidence of the armed robbery. Such greater proof is not always proof of the lesser offense, however, and herein may lie the confusion. The present case is illustrative.
Sub judice the only proof is of $600.00 worth of liquor, nondepreciable and based on “wholesale value” and not just wholesale “cost”; there is no way to reduce this to the less than $100 market value necessary to include the lesser offense of petty larceny. “Market value” is of course the standard. Spencer v. State, 217 So.2d 331 (Fla.App. 4th 1968). But wholesale “value”, as the record here sets forth, absent contrary proof, sufficiently satisfies the recognized test.
Had the evidence admitted of any finding on which the jury might have based a breaking and entering with intent to commit a misdemeanor, to-wit: petty larceny, a proper lesser charge sub judice, then a jury instruction thereon should have been given. The wise trial judge correctly perceived, however, that such an instruction found no support in the evidence and was therefore inappropriate and would have been error.
No evidence; no jury charge.

In this case the only allegation and the only proof is that $142 of United States currency was involved. There is no evidence that less than $142 was taken or that the appellant was guilty of taking less than $142. And $142 is worth $142, no more or less.

In Brown v. State, 206 So.2d 377 (Fla. 1968) it was held that larceny is a necessarily included lesser offense of robbery. That is true because robbery by definition is a forcible larceny from the person. Montsdoca v. State, 84 Fla. 82, 93 So. 157, 27 A.L.R. 1291 (Fla.1922). In short, it is true that you have to commit a larceny in order to commit a robbery, but you do not have to commit a petit larceny in order to commit a grand larceny. I think the trial judge was correct in declining to instruct the jury on petit larceny.