author: BOOKOUT, Judge.

text:
    John Lowell WOOD, alias v. STATE.
    6 Div. 266.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.

      Fred Blanton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

First degree manslaughter; sentence: ten years imprisonment.

The deceased, Hiram Fuller, was shot to death in the parking lot of Flo’s Lounge in Woodlawn, a Birmingham suburb. The shooting took place at approximately 12:30 A.M. on January 3, 1976. The sequence of events leading up to the shooting was relatively undisputed at trial. The evidence showed that the appellant and a friend, Robert Hancock, had played pool for money with the deceased a couple of hours before the shooting. A State’s witness testified that the appellant had a pistol in his boot which was similar to the pistol which was identified at trial as the murder weapon. However, the appellant and the owner of the pistol, Mark Giles, denied that the appellant had possession of the pistol on the night in question. It also appears that Hancock bought a bottle of vodka for the deceased and a companion of the deceased. The appellant and Hancock left Flo’s and returned a short time later with Mark Giles in search of the deceased.

The appellant and Hancock again entered Flo’s. They talked to the deceased who subsequently went out into the parking lot with them. The appellant contends that the deceased went out to get what was left of the vodka which had been purchased for him earlier. Both the appellant and Giles contended that their companion, Hancock, shot the deceased for no other reason than the fact that Hancock was extremely drunk. After the shooting, the appellant, Giles and Hancock fled the scene. Subsequently, Giles, accompanied by the appellant, sold the murder weapon to a friend.

The deceased had exhibited a large sum of money while playing pool with the appellant and Hancock. However, the deceased still had a good sum of money on him when he was found dead in the parking lot.

The appellant was indicted for first degree murder, and the State apparently prosecuted him under the felony-murder doctrine, in combination with Title 14, § 14, Code of Alabama 1940. The only evidence that the murder occurred during the perpetration of a robbery was the rather weak inference to that effect which one might draw from the fact that the deceased had exhibited a large sum of money just prior to his death, and that he may have been lured into the parking lot for the purposes of being robbed. The appellant, on appeal, however does not attack the sufficiency of the evidence.

I

The appellant contends that the trial court erred to reversal in excusing a prospective juror for cause on motion of the State, contrary to the principles enunciated in Davis v. State, Ala.Cr.App., 338 So.2d 507 (1976). That principle is as follows:

. . [I]t would appear that (and this Court does hold) that a general question concerning the juror’s ‘fixed opinion’ about penitentiary confinement will not suffice. Instead he should be examined further to determine if his opposition is such that he would not inflict penitentiary confinement regardless of the evidence and instructions of the Court as to the law. ...”

The colloquy in question in the instant case is as follows:

“MR. JOHNSON: As His Honor went over with you, if you are selected as one of the jurors in this case, if it falls upon your shoulders to set punishment in this case, as His Honor also told you this indictment charges murder in the first degree and the punishment for murder in the first degree is life imprisonment in the penitentiary. With that in mind let me ask you this: Can any of you say, and think about this now in your mind, can any of you exclude that you would not consider life imprisonment in the penitentiary in first degree murder in this case?
“THE COURT: Rephrase that, please, sir.
“MR. JOHNSON: Yes, sir.
“THE COURT: Are you saying to them if any of them know right now they would not give life imprisonment regardless of the facts or circumstances?
“MR. JOHNSON: Yes, sir.
“THE COURT: Any of you right now know before we get started that you would not convict this Defendant of first degree murder because the punishment is life imprisonment regardless of what the facts show, any of you know that right now?
“JUROR STEPHENS: I couldn’t say that to them words, but it would have some bearing on what I think about it.
“THE COURT: In other words, you’re saying right now, without hearing any of it, you would not convict this Defendant of murder in the first degree? I’m not arguing, I just want to know that’s right, if you think that. But you know right now you could not convict this Defendant of murder in the first degree?
“JUROR STEPHENS: Not in those words, no.
“THE COURT: Well, tell me what you are thinking.
“JUROR STEPHENS: Well, I just — I believe if I was to fix punishment at life imprisonment it might effect the way I would think.
“MR. JOHNSON: Mr. Stephens, let me ask you this: Would you exclude this as — in your mind now, could you set the punishment if you were convinced from all the facts of this Defendant’s guilt, murder in the first degree, could you set punishment at life imprisonment?
“JUROR STEPHENS: I don’t believe so. I don’t believe I could set punishment.
“MR. JOHNSON: Judge, we would challenge.
“THE COURT: In other words, if I told you that the only punishment for murder in the first degree in Alabama, as of today, as far as this case is concerned, is life imprisonment and you were convinced that he was guilty, you could not find him guilty, because punishment is life, is that what you’re saying? I have to know, you see, why to exclude you.
“JUROR STEPHENS: I don’t believe I could.
“THE COURT: Could not convict him?
“JUROR STEPHENS: No, sir.
“THE COURT: All right, sir. Mr. Stephens, you may go back to the jury room. Thank you sir.
“MR. BLANTON: I object to the exclusion of this venireman on the grounds that the Defendant is entitled to the thinking of all manner and classes of people and that this exclusion is prejudicial to the Defendant.
“THE COURT: All right, sir, you may g°-
“(Whereupon, Juror Stephens was found to be disqualified by the Court, and replaced with Juror Edwards.)”

We have carefully compared the above colloquy in the instant case with the colloquy set out in Davis supra. Davis was affirmed because the colloquy was held to be sufficient. The colloquy in the present case is even more illuminating than the Davis colloquy to the effect that the juror had a fixed opinion against penitentiary confinement regardless of the evidence or the instructions which would be given by the court.

It is good cause for challenge by the State that a prospective juror has a fixed opinion against penitentiary punishment. Title 30, § 57, Code of Alabama 1940; Davis, supra.

II

During the cross-examination by appellant of Jay Glass, an assistant pathologist, the following occurred:

“Q. During your autopsy did you have occasion to determine the alcohol content of the deceased’s blood?
“A. I gave—
“MR. JOHNSON: I object to going into that.
“THE COURT: I sustain.”

A defendant’s right of cross-examination is a fundamental constitutional right, and that right is not limited to matters brought out on direct examination, but extends to all matters within the issues of the case. Ball v. State, Ala.Cr.App., 337 So.2d 31, cert. quashed, Ala., 337 So.2d 39 (1976).

The appellant contends that the alcohol content of the deceased’s blood was relevant to the homicide for which the appellant was charged. He asserts that a high alcohol content would support his story that the deceased went to the parking lot to obtain the vodka.

We make the following observations:

A. There was no dispute as to why the deceased went into the parking lot. All of the evidence indicated that he went there intending to obtain the vodka bottle.

B. The deceased had been at Flo’s for several hours before the shooting. He played pool and drank beer during that period of time. Therefore, a high blood alcohol content would not shed much light on the reason for the deceased’s presence in the parking lot.

C. There was no claim of self-defense in this case. A claim of self-defense would make the alcohol content of the deceased’s blood quite relevant.

In Ball, supra, we stated:

“The latitude and extent of cross-examination has been held to be subject to some limitation. Both state and federal decisions vest trial judges with the limited discretion to cut off questions on cross-examination which: (1) are repetitions,
(2) concern wholly collateral matters, (3) are irrelevant, or (4) are harassing, annoying or humiliating. . . .” (Citations omitted.)

In our opinion, the alcohol content of the deceased’s blood would not be relevant to any material issue in this case. Why the deceased went to the parking lot, absent a claim of self-defense, appears to be irrelevant. We do not think the trial judge abused his discretion in refusing to allow the appellant’s attorney to cross-examine Dr. Glass on an immaterial or irrelevant point.

Ill

During the State’s closing argument, the following occurred:

“MR. JOHNSON: His Honor, I think, is going to charge you as to the law as to what makes murder in the first degree when those three robbers went out there with that gun of Giles’ to get that man’s money.
“MR. BLANTON: We object to him characterizing the Defendant as a robber.
“THE COURT: Well, it’s argument.”

It might be inferred from the evidence that the appellant, Hancock, and Giles lured the deceased into the parking lot in order to rob him; that one of the three shot the deceased; and that after the shooting, they were frightened off and failed to take the money. Such an inference can at best be characterized as extremely weak. However, it is an inference the jury could draw from the evidence and, therefore, a permissible argument. See Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974).

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte John Lowell WOOD, alias.
    SC 2523.
    Supreme Court of Alabama.
    June 3, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Charles Everett KING, alias v. STATE.
    3 Div. 629.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Richard S. Jaffe, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant with the robbery of C. G. Shavers by taking some $200.00 from his person, or by putting him in fear, etc. The jury found the appellant guilty as charged and set sentence at twenty-five years imprisonment in the penitentiary. The trial court then entered judgment which set sentence in accordance with this verdict.

Prior to trial the appellant made a motion to suppress the State’s evidence which, following a hearing thereon, was duly overruled.

C. G. Shavers testified that he owned and operated the C. G. Shaver’s Grocery on Highway 94 in Montgomery County, Alabama, on April 1, 1976. About 6:30 that morning, Mr. Henry Dees, a neighbor, was in the store, and two white males entered the store. He stated that Mr. Dees had just paid for some gasoline which he purchased when the following occurred (R. p. 34):

“A. There were two men that come in.
“Q. All right. And I will ask you whether or not you had known either one of those men before?
“A. No, I had never seen those two before.
“Q. You had not seen them before?
“A. No, sir.
“Q. I will ask you to tell this jury what those two men did?
“A. Well, the two men came into the store. There was a tall man and the other man was kind of stout. So, the tall man stayed at the door and the stout man came over and told me it was a holdup and not to try anything, that there were three men outside in the car that had shotguns. He told me to empty my pockets and empty the cash register and I did that and put the money out on the counter.
“Q. All right, sir. Now, let me back up and ask you a couple of questions. This man that stood over by the door, did you see him with any kind of weapon?
“A. Yes, sir, he had a little gun in his hand, a revolver.
“Q. Describe it as best you can?
“A. Well, it looked like a .22 to me.
“Q. Looked like a .22?
“A. Yes.
“Q. What color was it?
“A. Well, it was a little dark looking gun.”

Mr. Shavers testified that the two men made Mr. Dees and himself lie down on the floor, then took some $200.00 from his person and from the cash register. He stated that he had just put over $75.00 in the cash register prior to Mr. Dees paying him $2.65 for some gasoline. He stated that he heard someone say, “Someone’s coming,” that a young colored boy, one Michael Toles, entered the store to pay for some gasoline that he had pumped, and they made him lie down on the floor and took his billfold. He stated that as the men turned to leave, one of them said, “Let’s kill him,” and the other replied, “No, there’s no use in that, let’s go.” They then left.

On cross-examination, Donald King and Thomas Cline were brought into the courtroom and were positively identified by Mr. Shaver as being the two men who entered the store and took the proceeds from the cash register that morning.

Michael Carl Toles testified he was sixteen years of age and lived in the Grady community in Montgomery County, Alabama, on April 1, 1976. Just before 6:30 in the morning, he stopped at Shaver’s Grocery to get some gas, and after pumping the gas, he entered the store and noticed two white men inside, that they told him to lie down on the floor and took his billfold. He stated that he had seen a light green Buick automobile outside with a man seated at the steering wheel. He stated that one of the men said, “Don’t kill them,” and they just left the store.

Murry Hooten testified he lived about 200 yards from Shaver’s Grocery in Grady, Alabama, on Highway 94,- on April 1, 1976. He testified that on a Thursday morning, about 6:30, he saw a green Buick parked in front of Shaver’s Grocery with a white man seated under the wheel. He stated that as he started to drive to the front of the store he saw two other white men run out and jump into the car, then hurriedly drive away. He testified that he noticed all three of the men were white, but he could not identify any of them. He stated that the car was a 1967 Buick.

Donald C. King testified that he was forty-one years of age and lived at 1928 Berk-ley Avenue in Bessemer, Alabama. He stated that his mother owned a grocery store there and that he worked for her. He stated on the early morning of April 1, 1976, he was awakened around 3:00 o’clock by Billy Cline and Charles King, the appellant. He stated that they were drinking and they asked him to get up and go with them to the Majik Mart where more beer was purchased. He stated that they then went to a place known as Bluebird on the Bessemer Highway and picked up some whiskey. He said that Charles King stated that he had a four months old baby in Montgomery with his wife, and that he got on the Interstate and drove the car, a green 1967 Buick, which belonged to him, to Montgomery. He stated that after arriving in Montgomery, Billy Cline said, “Let’s rob a place.” Charles King stated that he knew of a store, but couldn’t go inside because the man knew him. King stated that he had a pistol which he had owned for about fifteen years. He stated that Charles King drove the car to Shaver’s Grocery, and remained in the car while he and Billy Cline went inside the store. He said that Billy Cline took the pistol, ordered the men to lie down on the floor, then took the money from the cash register and from Mr. Shaver. He stated that Billy Cline also took money from the other man who was lying on the floor. He stated that Billy Cline was taller than he, and that Cline stated in the store, “Let’s kill everybody,” and that he, King, replied, “No, leave them alone, and let’s go.”

Donald King stated that just before leaving the store, a young colored boy entered, that they made him lie down on the floor and took his wallet. He stated that they were driving back to Birmingham when they were pulled over by the Alabaster law, that they were arrested, and the pistol and money were taken from them by the Alabaster police.

On cross-examination Donald King said that he did not know anything about the robbery before they reached Montgomery. He stated that they had all been drinking that morning. He stated that he made no deal whatever with the State’s attorney, Mr. Teague, in return for his testimony in this case, and that no one had made any promises to him in order to get him to come to court, plead guilty, and testify.

Billy White testified that he was a Montgomery County Sheriff’s Investigator on April 1, 1976. He testified that he received the description of three white males who had robbed Shaver’s Grocery and put out an all-points bulletin on the State Law Enforcement broadcasting frequency. He testified that later he drove to Alabaster and took Mr. Henry Dees with him. He said that when they arrived, the Alabaster police had a 1967 Buick answering the description, and also Charles King, Donald King, and William Cline.

On cross-examination he testified that the billfolds and money which were on the three men were turned over to him, along with a .22 caliber pistol.

Larry Doss testified that he was an Alabaster police patrolman on April 1, 1976. He received a communication on his police radio concerning a 1967 green Buick containing three white males with a description of two of them, one being tall and slender, and the other being heavy set. He stated that he followed and stopped an automobile near Alabaster where Interstate 65 meets U.S. 31, North. He testified that he radioed for assistance, and that Alabaster Officer Frank Page and Chief Carter drove up within a few minutes of his stopping the automobile. He stated that he asked the driver, Charles King, for identification and he handed him his wallet. He stated that he asked King to open the trunk of his car, and he replied that he would be glad to do so. Upon looking in the trunk, Officer Doss found a green jacket which matched the green pants Cline was wearing, and a gray plaid jacket which matched the gray pants Donald King was wearing. He testified that he found a .22 caliber blue steel revolver in Donald King’s plaid jacket. He said that Chief Carter was present when Donald King stated that the pistol belonged to him, and that he, Doss, turned the pistol over to Chief Carter. The three men were then taken to the Alabaster City Jail.

Alabaster Police Chief C. E. Carter testified that in response to a radio request from Officer Doss, he went to the I 65-U.S. 31 Interchange and saw that Officer Doss had stopped a 1967 green Buick with three white males in it. He said that shortly thereafter State Trooper Posey drove up, accompanied by Alabaster Police Officer Frank Page. Chief Carter stated that he was present when Charles King voluntarily opened the trunk of his car, that two jackets were removed, and that a .22 caliber pistol was found in the pocket of the plaid jacket. He said that Officer Doss handed the pistol to him which he then identified from a mark that he had placed upon the weapon.

The appellant’s motion to exclude the State’s evidence was overruled.

William Thomas Cline testified that he was thirty-six years of age at trial and that he was convicted in Montgomery Circuit Court and sentenced to twenty-five years for the robbery of Shaver’s Grocery. He testified that on the morning of April 1, 1976, he and Charles King went to the home of Donald King and got him to go with them to get some beer, and then drove from Bessemer toward the Montgomery Highway. He said that Charles King was married and had a wife and baby living in Montgomery, so they began driving to Montgomery. Cline testified that because his license had been revoked he did not drive, that Charles King drove the car to Montgomery. He testified that before coming to Montgomery Donald King had discussed a robbery with them, and upon arrival in Montgomery they left Charles King at his wife’s home, then met a man known as “Chico.” Cline testified that Chico drove them to Shaver’s Grocery where he and Donald King went into the store. He testified that they had asked Charles King for permission to use his car to go eat breakfast, that they did not discuss their plan to rob the grocery in Charles King’s presence. Upon arrival at Shaver’s Grocery, he testified that Donald King went inside with him, that they took the proceeds and went out, and Chico drove them back to Montgomery where they picked up Charles King, then drove back toward Bessemer when Alabaster police officers stopped them.

On cross-examination Cline admitted two cases of grand larceny in 1959, a 1960 conviction of car theft, two 1963 burglary convictions, and five burglary convictions in 1965.

Charles E. King testified that he worked for Alabama Coal Haulers in Jefferson County, Alabama, but that his residence was 3914 Mattehorn Street in Montgomery. He testified that on April 1, 1976, he was married and had a four months old baby girl. He testified that he lived at Weaver Trailer Park in Bessemer because of his job. He testified that he and William Cline drove to the trailer residence of Donald King and picked him up on the early morning of April 1, 1976. He testified that he told them he wanted to see his wife and baby, and that he had a speeding ticket that he needed to see about. He testified that they stopped at a Majik Mart in Bessemer and bought some gas and some beer, then began driving to Montgomery. King testified that he arrived at his home in Montgomery between 5:15 and 5:30 and went into the house and noticed that everyone was asleep. He stated that William Cline and Donald King asked him if they could use his car to get breakfast, and he did not see them again until 7:30 or 8:00 when they drove up in the driveway and said, “Let’s go back to Bessemer.”

Charles King stated that it was about 10:00 o’clock that morning when the Alabaster police officer asked him to pull over, and that he gave him his wallet and drivers license. King testified that he voluntarily got out of the car and opened the trunk, and that he agreed to the car being searched.

On cross-examination Charles King admitted that in 1958 he had three convictions of grand larceny. He also testified that he had a 1962 conviction for petty larceny, and a 1962 conviction for robbery. He testified that he was thirty-eight years of age. He denied driving his automobile to Shaver’s Grocery on the morning of April 1, 1976, and insisted that he was at his home on Mattehorn Street in Montgomery, which is about one and a half miles off the Woodley Road in Spring Valley Estates. He admitted that he had known William Cline since 1959.

In rebuttal the State called Mr. Gregory A. Carr who was an attorney for William Cline in a companion case. Mr. Carr testified that he had talked with Richard Bentley of the District Attorney’s Office prior to the trial of Mr. Cline’s case, but there had been no offer made to him concerning his client, and no recommendation that he would serve ten years if he plead guilty.

I

Appellant contends that his motion to exclude should have been granted since the State’s case was based upon the testimony of an admitted accomplice, one Donald King, and cites us to Title 15, Section 307, Code of Alabama. 1940; and to Sorrell v. State, 249 Ala. 292, 31 So.2d 82.

We are of the opinion that there was sufficient evidence here shown, and the trial court properly denied the appellant’s motion to exclude. Burns v. State, 246 Ala. 135, 19 So.2d 450; Bridges v. State, 52 Ala.App. 546, 295 So.2d 266.

All three of the men were identified to the police officers by Mr. Dees, who passed away prior to trial. Moreover, corroborating evidence dealing with an accomplice need not directly confirm any particular fact stated by such accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776.

As observed by this Court through Harris, J., in Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675:

“Under the statute requiring corroboration of the testimony of accomplices to authorize conviction of a felony (Title 15, § 307, Code of Alabama 1940), the corroborative evidence need not be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. 23 C.J.S. Criminal Law § 812(5), p. 125 (1961); Moore v. State, 30 Ala.App. 304, 5 So.2d 644.”

The appellant’s motion was properly denied. Tanner v. State, 291 Ala. 70, 277 So.2d 885, and authorities therein cited.

II

The appellant next contends that the trial court erred in not allowing appellant’s counsel to argue the legal effect of certain requested charges to the jury.

In Keeby v. State, 52 Ala.App. 31, 288 So.2d 813, cert. denied 292 Ala. 724, 288 So.2d 817, this court said:

“Our Supreme Court, in writing to the question of one’s right to be heard through counsel of his choice, in Cross v. State, 68 Ala. 476, held:
“ ‘. . . Defendants have the right to be heard by themselves and counsel. The constitution secures this much to them. In addressing the jury, counsel must be allowed to select and pursue their own line of argument, their own methods of dealing with the testimony. They may state the principles of law applicable to the case, and may argue such principles, and quote from books in elucidation of their views of the law. This, however, is an argument before the court, and for the court; for the jury are not judges of the law. It is their sworn duty to receive and apply the law as the same is given them in charge by the court. The presiding judge has the same right and power to declare—authoritatively to declare— the law, as juries have to find the facts. Neither should or can invade the province of the other, without a breach of duty, and without detriment to the time-sanctioned theory of judicial trials. A known or intentional invasion by either, of the domain of the other, would be a gross violation of a sworn duty . . . .’
“Further, the Supreme Court in Harrison v. State, 78 Ala. 5, stated the rule thusly: “ ‘. . Courts have a discretionary power, moreover, to require all propositions of mere law to be argued as such to the presiding judge, and not to the jury. The jury are to receive the law from the court, and not from either the counsel, or from text-books or adjudged cases. This is a part of the police-power, so to speak, of the court, often necessary to prevent confusion and insure the orderly administration of justice in the trial court.’
“The former Court of Appeals, through then Presiding Judge Carr, in Smith v. State, 36 Ala.App. 646, 62 So.2d 473, stated the rule in this manner:
“ ‘In the early case of Harrison v. State, 78 Ala. 5, the Supreme Court held in effect that the jury should receive the law from instructions by the court and that the presiding judge is clothed with discretionary power to require all legal propositions and principles to be presented to the court and not to the jury. See also, Williams v. State, 83 Ala. 68, 3 So. 743; Ex parte Hill (City of Tuscaloosa v. Hill), 194 Ala. 559, 69 So. 598; Davis v. State, 213 Ala. 541, 105 So. 677; Birmingham Electric Co. v. Wood, 222 Ala. 103, 130 So. 786; Louisville & N.R. Co. v. Atkinson, 20 Ala.App. 620, 104 So. 835.’
“It is clear in the case at bar that the trial judge did not abuse his discretion by refusing to allow appellant’s counsel to argue for the written charges to the Jury in closing argument before submitting same to the trial judge. As observed by our Supreme Court in Davis v. State, 213 Ala. 541, 105 So. 677, ‘The law of the case must be taken by the jury from the trial judge.’ New v. State, 19 Ala.App. 140, 96 So. 720; White v. State, 41 Ala.App. 54, 123 So.2d 179, cert. den. 271 Ala. 702, 123 So.2d 186; Higginbotham v. State, 262 Ala. 236, 78 So.2d 637.”

Ill

Appellant’s attorney calls our attention to the trial court’s action in refusing certain written requested charges, some thirty-one in number. The trial judge did, however, in addition to giving an extensive oral charge, gave fifteen of the appellant’s written requested charges.

We have carefully examined those written charges which were refused and find that they were either covered by the oral charge or the given written charges, or were incorrect principles of law, abstract, argumentative, or invasive of the province of the jury, and therefore properly refused. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this record and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Charles Everett KING.
    SC 2628.
    Supreme Court of Alabama.
    July 8, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


text:
    James YOUNG, alias v. STATE.
    3 Div. 709.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Luther H. Waller, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Edward E. Carnes, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent on this appeal and at nisi prius, was tried pursuant to an indictment and convicted of robbery. The jury fixed punishment at twelve years imprisonment. This appeal is from a judgment duly entered.

The victim of the robbery was Mrs. Marcie Burkey. The subject of the offense was a 1972 Ford Pinto automobile that was in Mrs. Burkey’s possession. We will give details later in this opinion.

It appears that appellant-defendant, along with three other blacks, Peter (Potee) Frasier, David Floyd Glover, both males, and Frances Bascomb, a black female, originated a trip to Atlanta, via Montgomery, while they were in Huntsville, Alabama. Mrs. Bascomb was a close friend of Dr. John Logan Cashin, Jr., a black male dentist in that locality; and also very active in the civil rights cause for blacks.

Dr. Cashin, a witness for the State, testified in substance that Mrs. Bascomb enlisted his approval of the foursome taking part in a civil rights demonstration to be held in Mississippi or Atlanta, we are not sure which. He brought the foursome in his automobile to Montgomery on the. night of July 5, 1976; and also gave Mrs. Bascomb some money and let her have a four-barrel Derringer pistol at her request and for her protection. Dr. Cashin had no prior acquaintance with the three males, but rendered the service in reliance upon and at the request of Mrs. Bascomb. When they reached Montgomery he put them off at or near the Elks Club on Cleveland Avenue and he returned to Huntsville. He did not have further contact with the group and so far as the record indicates he was neither a party to the alleged robbery episode nor an aid or abettor thereto.

The genesis of the alleged robbery episode had its introduction when Mrs. Burkey, a white female, while driving her Pinto Ford, stopped in obedience to a traffic light located at the intersection of south Decatur and Arba streets, at the 1-85 overpass, whereupon a woman, identified as Mrs. Bascomb, and Potee Frasier “forced their way” into Mrs. Burkey’s car and “told me they wanted a lift to some street.” Mrs. Burkey did not know the name of the street. When the light turned, “I continued driving.” She testified:

“I told them that I couldn’t take them, because I had car trouble and that I didn’t want to give them a ride. But they wouldn’t get out of the car. So as we went on, we passed Ann Street, and we were approaching Perry Hill and I asked the man if that’s where I could let them off at. And he said, ‘Yes, this is the street.’ And so I pulled over, and I went past the exit and I was on the little side piece there, and I stopped the car, but I didn’t turn it off.”

Further, Mrs. Burkey said Frasier “pulled a gun on me” after indicating that I stop at Perry Hill road. She said that he “stuck the gun in my ribs and told me that it was a matter of life or death and to do exactly as he told me.” The gun was loaded. Mrs. Bascomb then got out of the car. Frasier directed “me to get in the back seat” at which time Frasier got out of the car. He stood between the door and the car and signaled. Two more men came to the car, one was the defendant, the other was Glover. Glover got in the front seat. Defendant got in the back seat. She said “I scooted all the way over towards the window.” She also said her car was a 1972 Pinto Run-about. Frasier said “I had to sit in the middle because I could make a scene or make some kind of distraction.” Frasier got in the back seat with the gun in the open and in plain view. The victim moved over as directed.

After the car started, “we were approaching a bridge and I got real hysterical and pleaded with Frasier and Young (defendant) to let me go.” The conversation was directed toward Frasier and defendant as follows:

“A. I told them that they could take the car if they would just leave me; and Frasier told me that I must think they are fools or something, because I would go report them to the police if they let me go. So they couldn’t let me go.
“A. So he told me that I had better calm down if I wanted to make it through it.
“Q. All right. How did you calm down?
“A. Well, I started crying.
“Q. What, if anything, did they do to calm you, if anything at all, to calm you down?
“A. Well, they both put their arms behind me and were holding me down.
“Q. They were holding you down?
“A. Yes.
“Q. In the back seat of that automobile?
“A. Yes.
“Q. Okay. What time of day was this?
“A. It was about 5:00 or 5:30.
“Q. Was it still light outside?
“A. Yes, it was light.”

It was on the interstate highway while Mrs. Bascomb was driving, that Frasier told witness about his involvement in murder and crimes and told her, in the presence of defendant, “that he would not think twice about killing me.” This was all in the presence of the defendant.

Relative to other conversation, the witness stated:

“Q. Now, was there any other conversation concerning you or your family in that car?
“A. Yes. Mr. Young asked me several questions concerning my family life, like my husband, what time would he be getting off work, when I would be missed; questions like that. He asked me what I did, if I worked.
“Q. Did he ask you what your husband
did for a living?
“A. Yes.
“Q. Okay. Was there any mention about the SLA or Patti Hearst in that automobile?
“A. Yes.
“Q. And in reference to that, what was said?
“A. Well, they just said that they were members of SLA and that they believed what happened to Patti Hearst was good. “Q. They said that they were members of the SLA and what happened to Patti Hearst was good?
“A. Um hum.
“Q. I’ll ask you if you can recall how long the car was in motion?
“A. I’m not positive.
“Q. Now, at any time in that time did Mr. Young reach for anything in his knapsack?
“A. Yes. After we had been on the road for awhile, they began passing around a bottle of booze that he had had. “Q. That who had had?
“A. Mr. Young.
“Q. What, if anything, did Mr. Young do while passing it at that time?
“A. They passed it to Frasier; and when Frasier went to give it to Bascomb, he took his arm away from around me. And so Young was the only one that had his arm around me.
“Q. And what, if anything, did Mr. Young do with his free hand?
“A. He pulled my leg down and he started to go up it and started to molest me.
“Q. And what, if anything, did Mr. Fra-sier say?
“A. He told him to stop, because it was making me upset and that it was visible to any oncomers that something was wrong in the car, and the back seat of the car was too small to do anything anyway. “Q. He said that the back seat of the car was too small to do anything anyway?”

Later, on 1-85, Frasier needed to relieve himself. The car was stopped. It was a straight shift and “stalled out.” They were not able to get it started again and it was getting dark.

After repeated efforts to get the car started without success, Frasier and defendant left to go back to a service station they had passed and get a service man. She was told not “to make any actions or display any kind of emotions to cause anybody to question what was going on.” At that time she did not know who had the gun. The service man left after trying unsuccessfully to get the car started. Frasier and Glover left to get somebody else to look at the car. She was left with Mrs. Bascomb and Young. Defendant was successful in stopping an automobile, a small car, but the car went on. Frasier and Glover returned with a service man whose name was Patrick Parsons. Frasier told witness not to say anything, and that if she did he would take care of her.

It was Parsons, who tried to get the car started and concluded that the gears were stripped. Then a Mr. Collier drove up.

“A. Well, he got out of his car and he asked if he could help, and everybody went over to talk to him except — I was told to stay in the car, and Glover stayed with me.
“Q. Glover stayed with you?
“A. Yes.
“Q. All right. What occurred then?
“A. Well, I couldn’t hear anything. The windows were up. I could see them. They were shaking hands, and there seemed to be a friendly conversation. Then I asked Glover if he would let me out to get some air. I thought maybe I could approach one of the men, the new man and maybe get away. And so Glover let me out of the car to get some air, and I started to walk towards them, and then he told me to go back to the car. And so I was told to sit back down, and I sat down in the driver’s seat.
“Q. You sat down in the driver’s seat?
“A. Yes.”

It was then, after some discussion, that Parsons agreed to take the blacks to Atlanta. They left, but Collier remained with the witness, Mrs. Burkey.

After the departure of Mr. Parsons and the foursome, Mrs. Burkey timidly, without knowing whether he was a friend or foe, approached Mr. Collier and learned that he was friendly. She told him her story. He took her to Auburn and they there informed the police what had happened. Suffice it to say that a police alarm went out on the air and the truck was stopped at a road block and all four blacks and Mr. Parsons were arrested.

Parsons testified that he was working part time then, July 6, 1976, at a service station. He identified defendant as one who came into the service station on July 6, 1976 with Potee Frasier. This was about forty miles from Montgomery. He testified that Frasier and defendant wanted him to come down and fix “our car.” He went with them. It was after dark. Mrs. Bur-key did not get out of the car; he attempted to talk to her because “The group — all members of the group kept me from talking directly with her.” He said that he attempted to get her away from the group;

“A. I tried to get them to let me take her up to the service station where I worked to call a tow truck to come and get the car off the highway before we left to go to Atlanta.
“Q. And did you do that?
“A. No, sir.
“Q. Why?
“A. Because they wouldn’t let me take her up.”

It appears that he took all of them away on his truck except Mr. Collier and Mrs. Burkey.

Parsons testified on cross-examination that he remembered specifically that defendant Young stated the car was his. He also said defendant and the others expressed a desire to take Mrs. Burkey with them but she said she wanted to stay with the car. He heard her talking.

The defendant elected to take the stand and testify.

He in substance denied his guilt. The trend was that he and Glover separated in Montgomery from Frasier and Mrs. Bas-comb and caught a ride to Perry Hill road where they were waiting when the other two and Mrs. Burkey drove up. He admitted coming to Montgomery from Huntsville in the car of Dr. Cashin. He denied getting any money or having any knowledge of a pistol. He contended he had no prior knowledge of any plan to force a ride on the part of Frasier and Mrs. Bascomb. He also denied knowledge of any of the circumstances involving Mrs. Burkey’s car. He denied putting his hands on Mrs. Burkey after he was picked up on 1-85; that he made no effort to do so. In fact, his testimony exonerated him from any part in intimidating or threatening Mrs. Burkey. He asserted he was free of any participation in the alleged robbery of Mrs. Burkey.

We have omitted much of the lengthy testimony, but suffice it is we have included sufficient evidence to give a fair picture of the episode and the defendant’s part as related by some of the witnesses.

Appellant insists, as we view his brief, that the alleged robbery occurred when Frasier and Bascomb intruded into the automobile at Arba and Decatur.

While these two persons were intruders and were unwanted riders in the automobile, we fail to observe that they manifested any attempt to take possession of or control over the automobile at that time.

We fail to find in the record any evidence of a conspiracy among Frasier, Bascomb, Glover and the defendant, Young, whereby control or possession of any automobile pri- or to Arba was contemplated.

The contention of defendant is that the four separated into pairs to facilitate their convenience in hitching rides to Atlanta. It is true that the foursome came to Montgomery as guest riders with Dr. Cashin and after he unloaded them, they were all together until they separated (in pairs) as above noted. But it would be mere suspicion arising out of their association that defendant and Glover ever conspired with Frasier and Bascomb to force possession and control over any automobile in furtherance of motor transportation to Atlanta.

Mrs. Burkey demurred to Frasier and Bascomb riding with her, but nevertheless, resumed driving her automobile with the unwanted guest aboard until she reached Perry Hill Road. She stopped at the Arba traffic light and turned east on that street which led to 1-85 east and along that interstate road until she reached Perry Hill Road. That is the point, as we read the record, where force and intimidation to gain possession and control of the automobile began, so far as the record before us shows. The testimony of Mrs. Burkey that she considered possession and control as having taken place at Arba was a conclusion on her part without foundation of fact as we view the record.

But the incident at Perry Hill Road is quite revealing and of factual importance.

Before we begin relating other incidents of intimidation, force or facts relating to the robbery charged in the indictment, we wish to point out what constitutes robbing one of a motor vehicle, namely, an automobile. Robbery is not defined in our Code. Title 14, § 415; Code 1940, fixes punishment for the offense. We must look to the common law offense of robbery. Thomas v. State, 91 Ala. 34, 9 So. 81, 82. Therein, Justice McClellan discusses the offense. He defines it to be “a felonious taking of money or goods from the person of another, or in his presence, against his will, by violence, or putting him in fear, and this violence must precede or accompany the stealing.” Hardis v. State, 28 Ala.App. 524, 189 So. 216, 217, holds that:

“. . . robbery is an offense against both person and property, and is briefly defined as the felonious taking of money or goods of value from the person of another, or in his presence by violence or by putting him in fear. Parks v. State, 21 Ala.App. 177, 106 So. 218. This would include the taking of an automobile from the possession of the owner under such circumstances as would constitute a felonious taking by violence or by putting him in fear.”

We further quote from Root v. State, 32 Ala.App. 253, 25 So.2d 180, as follows:

“Counsel for appellants argues strongly, and not without ingenuity, that the crime of robbery is incompletely established under the .facts of this case in that the owner of the automobile, Homer Lewis, was with the vehicle, in fact driving it, the entire time the appellants were in it, and therefore the requisite manucapture of another’s property by the defendants, essential to make out the crime of robbery, was lacking. The answer depends on whether the appellants were in possession of Lewis’ car.
“In his book, The Common Law, Mr. Justice Holmes writes ‘to gain possession, then a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent.’ This physical relation involves some degree of power over the object, and as a concomitant carries with it the power to exclude others from its use. See Holmes, supra, p. 220. Bare possession without control amounts to a mere custody. We need not concern ourselves with the element of intent, as this subjective element was included in the question of felonious intent found to be present by the jury.
“It is our opinion that the possessive or manucaptive element essential in robbery was present in this case. From the moment that these defendants and Lewis entered his automobile these appellants only were in full control and possession thereof. True, Lewis was present at all times. However, his status was that of a robot. His dominion over the automobile was completely negatived by the will and pistols of the appellants. It is our opinion that the facts of this case spell out that on the part of the appellants there was a felonious taking of property from the person of another, or in his presence, against his will, by violence or putting in fear. The fact that the owner was carried along against his will when the property was taken is incidental and should not affect the decision. . . . ”

With respect to intimidation as it relates to fear, we quote paragraphs 16(a), 77 C.J.S. Robbery, p. 459:

“ ‘Intimidation,’ as the word is used in the law of robbery, means putting in fear. In order to constitute robbery by intimidation, it is essential that the property taken be surrendered because of the apprehension of injury, and that the fear be that under compulsion of which the victim parts with his property. That fear essential to robbery must be caused by accused, intentionally, and not rise from the mere temperamental timidity of the victim. However, if there exists reasonable belief that injury will result from noncompliance with the robber’s demand, the necessary ‘fear’ is present.
“Degree of intimidation. The intimidation must be such as to cause a reasonable apprehension of danger. However, the fear aroused need not amount to great terror, panic, or hysteria. It is necessary and sufficient that the fear is strong enough to overcome the victim’s resistance and induce him to part with the property under its compulsion.”

It appears from the evidence of the alleged victim, Mrs. Burkey, that on reaching Perry Hill Road, the two riders told her to stop, which she did. Frasier pulled a gun on her and stuck it into her ribs and told her that it was a matter of life or death and to do exactly what he told her to do. She identified exhibit number 3, the four-barrel .22 Derringer pistol as the gun he stuck in her ribs. He showed her it was loaded. Mrs. Bascomb got out of the car, on the passenger side. Frasier instructed the witness to get in the back seat. He stood between the door of the car and the entrance and signaled. The defendant and Glover came to the car. Defendant got into the back seat with the witness. She scooted toward the window. Frasier said that she was next to the window. In the presence of the defendant, Frasier directed her to get in the middle, which she did. Defendant said “all right,” and let her move into the middle. Glover got into the front seat with the other woman who did the driving. Frasier was in the back seat and had the gun out in the open.

It further appears that while enroute after Glover and defendant got in the car, the victim got hysterical and pleaded with Fra-sier and defendant to let her go.

“A. I told them that they could take the car if they would just leave me; and Frasier told me that I must think they are fools or something, because I would go report them to the police if they let me go. So they couldn’t let me go.
“A. So he told me that I had better calm down if I wanted to make it through it.
“Q. All right. How did you calm down?
“A. Well, I started crying.
“Q. What, if anything, did they do to calm you, if anything at all, to calm you down?
“A. Well, they both put their arms behind me and were holding me down.”

It appears that at a certain point on 1-85, the car was stopped to let Frasier accommodate himself to a physical necessity. It was then that they were unable, after much effort, to get the car in forward or reverse motion again. Two of the men went to a nearby filling station where they procured the services of an attendant, Leroy Parsons, who also failed to get the car in gear.

Parsons testified that the defendant and Frasier told him that the automobile belonged to them. He was unable to communicate with the victim because the foursome secluded her from communication.

Finally, Parsons was importuned and agreed to take them to Atlanta on his truck, leaving the victim at the car with a Mr. Collier who also had come up and offered to help get the car started. After the truck left bearing the foursome, Burkey found that she could trust Collier and told him her story. He took her to Auburn where they communicated with the Auburn police. These officers put out a dispatch to look out for the truck. The truck was spotted and was stopped by a road-block. The foursome plus Parsons were all arrested.

At the trial of this case, Parsons and Collier testified for the State. Parsons had moved to Ohio, at which point he found the pistol, exhibit number 3, under the front seat of the truck. He turned it in to the police in Ohio. The pistol was sent by registered mail to Montgomery, and after proper identification, was lawfully admitted in evidence.

It appears to us from the record that after the car was stopped at Perry Hill Road, when and where Frasier signaled Glover and defendant, and they appeared on the scene, there was frequent intimidation and an atmosphere of fear created by Frasier and defendant, continuing until the Parson truck left the scene to take the foursome to Atlanta. The fear and intimidation was continuing to which the defendant made a contribution and was a well-wisher. It appears to us that he aided and abetted in creating fear and intimidation from the time he appeared on the scene at Perry Hill Road until the Parson truck left. Title 14, § 14, Code of Alabama, Recompiled 1958. He even tried to put his hands on Mrs. Burkey in a manner to have sexual contact with her. He was warned by Frasier that he could not do that in the car.

It appears that Frasier was the leader of the foursome; that defendant was a willing aid and abettor in placing Mrs. Burkey in fear that induced her to obey orders of Frasier and surrender control and dominion of her Pinto automobile. We think that defendant’s conduct and obedience to the instruction of Frasier indicate and support a factual inference that he knew that Mrs. Burkey was a victim of fear and intimidation created by Frasier and that she was being deprived of her automobile at gunpoint. Also, from his conduct, words and willingness to co-operate in furtherance of the deprivation of the car it could reasonably be inferred that he was aiding and abetting Frasier and the other two in carrying out the scheme. He knew full well that the automobile did not belong to Frasier; that it had been in possession of Mrs. Bur-key prior to possession being taken at pistol-point. The incidents, conduct of this defendant from Perry Hill Road to the departure of the foursome with Parsons, sheds light on his knowledge of the robbery and his willing co-operation in the affair. It is true the actual possession of the car took place at Perry Hill Road but the deprivation by intimidation and fear was a continuing affair in which the defendant was a satellite and willing actor. He aided and abetted. Title 14., § 14, Code of Alabama, supra.

We hold that defendant was not entitled to any written or oral instructions that denied the jury the right to pass upon his guilt or innocence. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Willie SHEPARD, Jr. v. STATE.
    6 Div. 172.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: life imprisonment.

On the afternoon of August 10, 1973, Joan Collins was riding in Birmingham in an automobile driven by Dan Simpson, and accompanied by her sister, Harriett Dixon, and by Howard Wright and Tony Dixon. The appellant, riding by in an automobile driven by Leo Broom, recognized his former girlfriend, Joan Collins, and followed the the other automobile to Harriett Dixon’s house. The two automobiles stopped and as Joan Collins stepped from her car, the appellant approached and said, “Bitch, I told you I was going to kill you.” Appellant fired several shots at her, hitting her once in the back as she ran toward a neighbor’s house. The appellant fired three more shots, apparently at Harriett Dixon and then fled in the automobile driven by Leo Broom. Joan Collins died later that night from the gunshot wound.

Appellant testified that he was fired upon first by Howard Wright, Joan Collins’ new boyfriend. (Appellant and Joan Collins had lived together for several years and had broken up their illicit cohabitation shortly before the shooting incident.) Appellant stated that after being fired upon, he returned several shots and then fled.

The appellant originally pled not guilty to first degree murder, he later withdrew his plea and entered a negotiated plea of guilty to second degree murder. On July 30,1975, judgment was entered on the guilty plea and, on recommendation of the district attorney, appellant was sentenced to fifteen years imprisonment. Appellant was later indicted for assault with intent to murder Harriett Dixon and proceeded to trial on that charge on January 20, 1976.

On January 19,1976, the appellant filed a “Motion For Collateral Estoppel” alleging that the prosecution had entered into a binding agreement to dismiss the assault charge upon appellant’s plea of guilty to second degree murder. A hearing was held on that date in which appellant’s former counsel testified that the agreement was to dismiss the assault charge or either to receive a sentence to run concurrently with the sentence entered on the guilty plea in the murder case. The assistant district attorney in charge of the murder case testified that he did not remember the details of his discussion with defense counsel or whether any decision was reached on the assault charge. It was disclosed in the hearing that after the guilty plea was entered and the appellant received the fifteen year negotiated sentence, that the family of the victim became very upset over the settlement. They contacted the district attorney who also became upset and discussed the matter with the assistant district attorney in charge of the murder case. The assault with intent to murder indictment then apparently arose from the dissatisfaction with the sentence meted out in the murder case.

At the end of the hearing on the appellant’s motion, apparently at the trial judge’s- suggestion, the appellant orally moved the court to set aside the guilty plea and judgment on the murder conviction, to restore that case to the docket, and to try the murder and assault cases together. Over the State’s objection, the motion was granted, and trial commenced the next day on both charges. At the end of the trial, the jury acquitted the appellant on the assault charge, but convicted him of second degree murder and fixed punishment at life imprisonment.

Appellant brings this appeal seeking: (1) to have the trial court’s ruling reversed which set aside his original guilty plea and sentence thereon, and (2) to have the fifteen year sentence on the original guilty plea reinstated. Appellant contends that the circuit court had lost jurisdiction over the original murder case and could not set aside the final judgment and put him to trial again on that charge.

This Court, in Goolsby v. State, Ala.Cr.App., 344 So.2d 224 (1977) quoted from Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222 (1967) wherein our Supreme Court stated:

“§ 119, Title 13, Code 1940, provides that after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial, has been filed and called to the attention of the court and an order entered continuing the motion for hearing to a future day . . ..”

The statute is very clear that unless a proper motion is made prior to the expiration of thirty days from rendition of judgment, called to the attention of the trial court and an order entered continuing the motion for a hearing for a future date beyond the thirty day period, the trial court loses all jurisdiction over the case. There are a multitude of cases supporting that proposition. Essex v. State, 45 Ala.App. 141, 227 So.2d 138 (1959); Harris v. State, 44 Ala.App. 632, 218 So.2d 285 (1969); Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413 (1968); Hamilton v. State, 43 Ala.App. 192, 186 So.2d 108 (1966); Ex parte R. H. Byrd Contracting Company, 26 Ala.App. 171, 156 So. 579 (1934).

Where the trial court’s jurisdiction has completely lapsed, as though it never existed, jurisdiction cannot be revived by waiver or by agreement of the parties. Pate v. State, 244 Ala. 396, 14 So.2d 251 (1943).

In English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied 295 Ala. 401, 325 So.2d 216 (1975) this Court stated that, “ . . .if the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused, the accused must be afforded the opportunity to withdraw his guilty plea on motion promptly made . . . .” (Emphasis supplied.) The time for filing a motion for leave to withdraw a guilty plea is governed by Title 13, § 119. Harris; Sykes, supra.

The line of cases dealing with the failure of the State to live up to an agreement made with the defendant generally deals with situations where a defendant, on sentencing, finds that his sentence is more severe than his agreement with the prosecution had called for. In those cases there has been an almost immediate objection or a motion to set aside the guilty plea at the time of sentencing. Such was the case in English, supra.

We note in the instant case that there was no agreement in writing, and the district attorney did not remember whether he had entered into an agreement which would affect his later bringing an assault charge against the appellant. Where the appellant pleads guilty to one charge with the understanding that a second charge will not be brought against him, but after the lapse of thirty days from judgment, the district attorney violates the agreement and brings a second charge, then upon proper motion and proof, the State may possibly be estopped from prosecuting the second charge. However, we pretermit deciding the issue of collateral estoppel here, since the second charge resulted in an acquittal.

The record does not reflect, and neither do the parties contend, that any motions were filed with the trial court prior to the expiration of thirty days after rendition of judgment. There is no evidence that a motion for a new trial was timely filed, brought to the attention of the trial judge and kept alive beyond the thirty day period. Neither did the trial court take any action, ex mero mota, during that period to retain jurisdiction. Ex parte R. H. Byrd Contracting Company, supra.

The State contends that the verbal motion of defense counsel could be considered as a petition for writ of error coram nobis. We disagree. The verbal motion, setting forth no grounds for setting aside the judgment, in no way conforms to the requirements of a petition for error coram nobis. See: 7 Alabama Digest, Criminal Law, &wkey;997.1.

The motion to set aside the guilty plea and sentence came more than five months from the time judgment was entered in the murder case. There being no motion alive before the court, all jurisdiction over that judgment in the trial court had completely lapsed. Therefore, the proceeding which resulted in setting aside the judgment and restoring the murder case to the docket must be considered coram non judice. Pate, supra; Nickens v. State, 31 Ala.App. 297, 15 So.2d 633 (1943). That portion of the trial court’s order must be regarded as surplusage. Crook v. State, 44 Ala.App. 83, 203 So.2d 138 (1967). Since the trial court’s vacation of judgment on the guilty plea was a complete nullity, appellant was only legally tried for assault with intent to murder on January 20, 1976, and was acquitted. Appellant’s second conviction and sentence of life imprisonment on the murder charge, for which he was at that time serving a lawful sentence of fifteen years imprisonment, must be reversed and rendered. The trial court is directed to reenter upon its records the original judgment of conviction of second degree murder and fifteen year sentence imposed thereunder.

REVERSED AND RENDERED WITH DIRECTIONS.

All the Judges concur.


author: HATCHETT, Justice.

text:
    Jesus FRESNEDA, Appellant, v. STATE of Florida, Appellee.
    No. 48963.
    Supreme Court of Florida.
    April 21, 1977.
    Rehearing Denied July 13, 1977.
    Bennett H. Brummer, Public Defender, and Linnea R. Snyder, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
   HATCHETT, Justice.

This is an appeal from an order of probation. The prosecution arose out of an automobile accident on July 28, 1974. When a Cadillac stopped abruptly, a Volkswagen skidded into it. The appellant’s car then hit the Volkswagen from behind; instead of stopping to offer assistance, the appellant backed up and drove off. He was subsequently apprehended and charged with leaving the scene of an accident resulting in injury to another person, in violation of Section 316.062, Florida Statutes (1975). The trial court concluded that appellant was guilty of the offense, but withheld adjudication of guilt and placed appellant on probation, with the condition that he pay the Parole and Probation Commission in excess of $1,600.00, for the benefit of the occupants of the Volkswagen, who were injured in the accident. The defense challenged the propriety of setting a sum for restitution without “a hearing and opportunity to be fully heard as to the amount.” In disposing of the motion to correct illegal sentence, the trial court passed on the constitutionality of Section 948.03, Florida Statutes (1975). Accordingly, we have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

The trial court included the restitution condition in the order of probation, citing Section 948.03(l)(g), Florida Statutes (1975). This subsection authorizes conditioning probation on the probationer’s making “reparation or restitution to the aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court.” (emphasis supplied). Both appellant and appellee concur, however, in the view “that said condition of probation is not authorized by this subsection of the statute.” We are likewise persuaded that Section 948.03(l)(g), Florida Statutes (1975), does not authorize the restitution condition imposed in this case. See People v. Becker, 349 Mich. 476, 84 N.W.2d 833 (1957); State v. Barnett, 110 Vt. 221, 3 A.2d 521 (1939). Appellant’s offense was leaving the scene of the accident, not causing it. The record does not establish what injury was caused by the collision between appellant’s car and the Volkswagen, as opposed to injury caused by the earlier collision between the Volkswagen and the Cadillac. There is no basis in the record for distinguishing between injuries sustained in either of the collisions from aggravation of those injuries attributable to such delay, if any, in securing medical attention as the appellant may have caused.

The State argues that the language of Section 948.03(2), Florida Statutes (1975), supplies the authorization for the restitution condition, which is lacking in subsection one. Subsection two provides:

The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper. .

Although, in general, we believe this language should be liberally construed, we glean no legislative intent to authorize trial courts to require probationers to pay over random sums of money. Of course, the figure in the present case presumably bears some relationship to the accident out of which the prosecution arose, but it is not clear what the relationship to appellant’s offense is.

We hold that a condition of probation requiring a probationer to pay money to, and for the benefit of, the victim of his crime cannot require payment in excess of the amount of damage the criminal conduct caused the victim. Before ordering a restitution as a condition of probation, the trial judge should give the defendant notice of the proposed restitution order and allow the defendant the opportunity to be heard as to the amount of damage or loss “caused by his offense.” The defendant’s right to be heard, we believe, is part of the process through which the “amount [is] to be determined by the court” under the statute.

Inasmuch as the State concedes that “the damage or loss incurred by the aggrieved parties was caused by the auto accident itself, not by the defendant’s criminal offense of leaving the scene of the accident,” there would be no point in conducting a hearing on remand, in the present case.

Accordingly, we find Section 948.03, Florida Statutes (1975), constitutional; we reverse the order appealed and remand the case for resentencing.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and DREW (Retired), JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Ralph A. JOHNSTON, Respondent.
    No. 51095.
    Supreme Court of Florida.
    June 30, 1977.

      Grady Lynn Kilpatrick, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

This is a disciplinary proceeding against respondent, Ralph A. Johnston, a member of The Florida Bar. The respondent did not appear before the referee and has filed no responsive pleadings in this court. The referee made the following findings and recommendations of law:

1. RALPH A. JOHNSTON is guilty of violation of Rule 11-02(4) of the Integration Rule of the Florida Bar, and of Disciplinary Rules 1-102(A)(4), and 9-102(B)(4) of the Code of Professional Responsibility;
2. RALPH A. JOHNSTON is guilty of violation of Rules 11.02(3)(a), and 11.-02(3)(b) of the Integration Rule of the Florida Bar and of Disciplinary Rule 1-102(A)(3) of the Code of Professional Responsibility, in that said RALPH A. JOHNSTON wrongfully and illegally converted to his own use the sum of $13,000.00 the property of his client, JOSE ELQUEZABAL; and
The Referee recommends that the accused RALPH A. JOHNSTON should be found guilty of misconduct justifying disciplinary measures which should be disbarment from the right to practice law in the State of Florida.

Ralph A. Johnston has previously been the subject of disciplinary proceedings, having been suspended from the practice of law by this court on January 28, 1976, In re Johnston, 327 So.2d 9 (Fla.1976), and again on April 28, 1976, In re Johnston, 332 So.2d 13 (Fla.1976).

We have examined the report of the referee and the record of the proceedings. We find the record sufficient to sustain the findings of the referee and to justify his recommendation. Accordingly, respondent, Ralph A. Johnston, is disbarred from the practice of law in Florida upon the effective date of this order and shall pay the costs of these proceedings in the amount of $507.40.

It is so ordered.

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


text:
    Edward LILLIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 50186.
    Supreme Court of Florida.
    June 30, 1977.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen, and Sidney M. Pertnoy and Anthony C. Musto, Asst. Attys. Gen., for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ. Upon further consideration of the cause, we conclude that no direct conflict of decisions exists as required by Article V, Section 3(b)(3), Florida Constitution. Therefore, the writ must be and is hereby discharged.

It is so ordered.

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


text:
    In re INQUIRY CONCERNING A JUDGE, NO. 77-19.
    No. 51908.
    Supreme Court of Florida.
    June 30, 1977.
    Woodrow M. Melvin, Milton, Chairman and John T. Wigginton, Gen. Counsel, Tallahassee, for Florida Judicial Qualifications Commission, petitioner.
    C. Harris Dittmar, Jacksonville, for respondent.
   PER CURIAM.

This cause is before the Court upon the request of the Judicial Qualifications Commission to suspend without pay the respondent Samuel S. Smith as a circuit judge pending disposition of proceedings on formal charges filed by the Commission against the respondent and made a part of this proceeding.

This Court received the request on Thursday, June 23, 1977, and it appearing that the respondent had been afforded no opportunity to be heard before the Judicial Qualifications Commission, we issued an order directing the respondent Samuel S. Smith to show cause in writing on or before 2:00 p.m., Tuesday, June 28, 1977, why suspension without pay should not be granted as requested. The order to show cause, the formal charges, and the request for suspension were personally served upon the respondent on Friday, June 24, 1977. A response has been filed by the respondent Samuel S. Smith consenting to the entry of an order officially suspending him but requesting that the Court deny the Commission’s request that he be suspended without pay.

We find that conviction in the United States District Court for the Middle District of Florida for felony violations of Title 21, United States Code, Sections 812 and 841(a)(1), and Title 18, United States Code, Section 2, are clearly sufficient grounds to suspend a judicial officer of this state without pay.

We hereby grant the Judicial Qualifications Commission’s request for suspension without pay of the respondent Samuel S. Smith as a circuit judge until further order of this Court.

It is so ordered. This suspension without pay shall be effective at 11:59 p.m., June 30, 1977.

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


author: SUNDBERG, Justice. ADKINS, Justice,

text:
    ITT COMMUNITY DEVELOPMENT CORPORATION, a Delaware Corporation, Appellant, v. John SEAY, Property Appraiser of Flagler County, Florida, Appellee.
    No. 49028.
    Supreme Court of Florida.
    June 30, 1977.

      Talbot D’Alemberte of Steel, Hector & Davis, Miami, for appellant.
    Kate L. Walton of Walton & Townsend, Palatka, for appellee.
   SUNDBERG, Justice.

This cause arrives at our Court following an order of the trial court holding, inter alia, Section 194.042, Florida Statutes (1975), unconstitutional. Pursuant to Article V, Section 3(b)(1), Florida Constitution, we execute our constitutional duties by entertaining this appeal.

Appellant, with its affiliated corporations, owns more than one hundred square miles of real estate in Flagler County. Following the notice of tax assessments for 1975, appellant instituted several attacks on the 1975 tax roll, contending that tax assessment notices, totaling many millions of dollars, reflected a “vast increase” over the previous year’s assessment. In addition to the asserted increase, appellant protested the aggregation of its taxable property into massive parcels. One such parcel was assessed at $37,000,000. At a hearing before the Board of Tax Adjustment (now called Property Appraisal Adjustment Board) of Flagler County, appellant’s counsel allegedly gained assurances from appellee, the Fla-gler County Property Appraiser, that the latter’s office would assist appellant in breaking the property up into parcels with an assessed value of no more than $200,000 each so that ITT could employ “Pope’s Law” to reduce the tax assessments. Section 194.042, Florida Statutes (1975), commonly referred to as Pope’s law, purports to provide an alternative means for challenge of a contested assessment. Conceptually, Pope’s law attempts to determine “just valuation,” or “fair market value,” the objective of assessment, by providing a procedure for offering the taxpayer’s property for sale at a public auction. The property owner who contests the assessment through Pope’s law is required to make a commitment to his difference of opinion by testing that opinion at the marketplace.

After the hearings before the Board had concluded, appellant filed notice of intention to use Pope’s law and again requested that the property be broken down into smaller parcels, which request was denied. Appellant did not follow the second step in the procedure for using Pope’s law, i. e., filing the certificate required by Section 194.042(l)(b), Florida Statutes (1975), but instead brought a mandamus action in circuit court within the statutory time period allotted for filing the certificate. The purpose of this action was to vindicate appellant’s “right to more manageable notices” by requiring appellee to break ITT’s holdings into parcels having a value of $200,000 or less; this accomplished, appellant could then utilize Pope’s law to prove its claim that its assessments were excessive. Appel-lee’s response to the petition for writ of mandamus took the position that “the responsibility for including land in certificates containing property, the assessed value of which is not in excess of $200,000, rests squarely upon the owner’s shoulders.” Ap-pellee also raised affirmative defenses, including the defense that the certificates need not be limited to $200,000 unless they included more than one parcel of land. In response to appellee’s position, appellant amended its pleadings to seek additional relief by way of declaratory judgment on the statute’s construction.

In its final order, the trial court held that: (1) Section 194.042, Florida Statutes (1975), was unconstitutional; (2) appellant was “time-barred” from using Pope’s law; and (3) the $200,000 limitation applied only where two or more parcels of property were included in a single certificate. Appellant now raises these three points in its appeal before this Court. Because we affirm the trial court’s order declaring Section 194.042 unconstitutional, we are unobliged to ponder the merit of appellant’s remaining contentions.

The trial court found Section 194.-042, Florida Statutes (1975), unconstitutional on its face as providing a method of determining valuation for ad valorem taxation purposes which violates the “just valuation” criterion of Article VII, Section 4 of the Florida Constitution. That constitutional provision states:

By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation .

While we admire the conceptual simplicity with which Pope’s law attempts to determine value, we must affirm the conclusion reached by the court below that the statute is incapable of arriving at “just valuation” as mandated by our organic document.

This Court has stated that “just valuation” is legally synonymous with fair market value. District School Board of Lee County v. Askew, 278 So.2d 272 (Fla.1973); Southern Bell Telephone & Telegraph Co. v. Dade County, Fla., 275 So.2d 4, conformed to 275 So.2d 566 (Fla. 3d DCA 1973); Walter v. Schuler, 176 So.2d 81 (Fla.1965). See also McArthur Jersey Farm Dairy, Inc. v. Dade County, 240 So.2d 844 (Fla.3d DCA 1970). It follows that if fair market value cannot be accurately measured, “just valuation” cannot be determined. The formula for establishing fair market value has been stated repeatedly as the amount a purchaser willing but not obliged to buy will pay to one willing but not obliged to sell. Burns v. Butscher, 187 So.2d 594 (Fla.1966); Walter v. Schuler, supra; Root v. Wood, 155 Fla. 613, 21 So.2d 133 (1945). We must determine then whether the “quasi-forced” sale mandated by Pope’s law produces both a veritable “willing buyer” and “willing seller,” as those terms have been traditionally employed, who negotiate the fair market value of property. We find that it does not.

Section 194.042(l)(k) provides the “property owner” with an alternative to selling his property if he does not fancy the price bid at the auction:

In the event the property owner fails to deliver to the [property appraiser] a good and sufficient warranty deed as provided in paragraph (i), within the time prescribed, the property owner shall forfeit the cash deposit or surety bond given to the [property appraiser] with the written authorization as provided herein and the [property appraiser] shall pay over one-half this amount to the buyer, together with a return of the amount paid in pursuant to the buyer’s bid. This shall be full and complete compensation to the bidder and he shall have no other recourse against the property owner and the [property appraiser] arising out of any of the measures taken as provided in this section. The [property appraiser] shall retain the remainder of the forfeited cash deposit or surety bond; provided however, the property owner shall not forfeit the cash deposit or surety bond except for costs not otherwise paid where he is unable to deliver merchantable title acceptable to the buyer. In such event the just value shall be determined as otherwise provided by law.'

The efficacy of the property owner in reneging on the purchase influences both the prospective buyer and the prospective seller. Were the taxpayer compelled to relinquish his property, once the auctioneer lowered his hammer, he would be more disposed to value the property at a higher price than if, as here, he could renounce this sale and merely forfeit his deposit. Concomitantly, a prospective buyer at a Pope’s law auction perceiving the owner’s power to terminate the agreement surely must react more phlegmatically in the bidding process than he would in negotiations with an ordinary seller, in essence, then, the public auction does not establish the fair market value of property. Rather, it ascertains how substantial a cash offer will be made for it when the buyer realizes that the sale remains contingent upon the owner’s willingness to sell which may continue undeclared for at least 30 days after the auction. Sections 194.042(l)(e) and (i), Florida Statutes (1975).

Appellant relies on Walter v. Schuler, supra, for the proposition that “just valuation” is best determined by establishing fair market value. With this proposition we agree. However, we reject appellant’s rationale that Section 194.042, Florida Statutes (1975), outlines suitable procedures for determining fair market value. The Schu-ler case itself states that fair market value cannot be gauged without a willing buyer and a willing seller.

“fair market value” and “just valuation” should be declared “legally synonymous” and that such is the best way to arrive at the definition of “X” [the correct assessment]. The former term is a familiar one and it, in turn, may be established by the classic formula that it is the amount a “purchaser willing but not obliged to buy, would pay to one willing but not obliged to sell.” Root v. Wood, 155 Fla. 613, 21 So.2d 133. Id. at 85, 86.

Under Pope’s law, there will never be a “willing buyer” or “willing seller” as those terms have been historically utilized in case law.

A second deficiency of the statute impeding the establishment of “just valuation” manifests itself any time a bid on the property is received at auction. In that event, the statute does not provide for use on the tax roll of any cash offer between the certificate amount and the value fixed by the appraiser on the tax roll. Even if a sale is consummated, there is no provision in the statute that the purchase price be put on the tax rolls thereafter as the fair market value of the property. We can only interpret this peculiar silence in the statute to mean that the value fixed by the appraiser remains on the tax roll even after completion of the sale. Only when the auction results in no cash offer is value established for tax purposes which is different from that assigned by the property appraiser. In that instance, Section 194.042(1)(I), Florida Statutes (1975), provides:

In the event that no bid is received at the auction, the amount set forth in the certificate shall be established as the just valuation of the property and shall be entered on the tax rolls of the county. If more than one parcel of land was included in the certificate the amount shall be applied to each parcel on a proportionate share basis.

Our discomfiture with Pope’s law is predicated on one other impediment to the statute. The act attempts to determine value at a date remote from January 1 of the tax year in question, the date for valuation of all other taxpayers’ property. Consequently, the taxpayer who employs Pope’s law is treated differently from every other taxpayer. If no bid is received at auction, the property’s value is established at that time or shortly thereafter. Thus, Section 194.042, Florida Statutes, attempts to value property at least 10 months after the legal assessment valuation date of January 1 of the tax year. We can find no compelling rationale for this disparate treatment. Democratic philosophy mandates that every taxpayer be treated consistently, and that everyone contribute his fair share, no more and no less, to the tax revenues. As this Court stated in Bancroft Investment Corp. v. City of Jacksonville, 157 Fla. 546, 27 So.2d 162 (1946):

. We approach it on the premise that this is a democracy in which every parcel of property is expected to bear its due portion of the burden of government, unless exempted by the legislature in the manner provided by Section 1, Article IX of the Constitution. Courts have no more important function than to direct the current of the law in harmony with sound democratic theory. Id. 27 So.2d at 170.

The democratic ideology contemplates consistency of treatment. Article VII, Section 4, Florida Constitution, reflects that contemplation. Hence, the statute in issue cannot satisfy the requirements of our organic document.

Appellant argues that disparity of treatment occurs only when the market is declining, in which case, a lower valuation would be placed on the property at the auction than at the initial assessment performed by the property appraiser. This hypothesis is without merit. The requirement of just valuation will not permit property either to be undervalued or overvalued as of the assessment date.

Our holding today obviates the need to consider appellant’s additional points on appeal. It is noteworthy, however, that the third point raised, i. e.: whether the $200,-000 statutory limitation applies only where two or more parcels of property are included in a single assessment, illustrates the statute’s inherent unworkability and unfairness. If one analyzes the interpretation of the circuit court, that the $200,000 limitation applies only where the certificate refers to multiple parcels, he will realize that this construction could yield an unreasonable result, that is, a parcel valued at an exorbitant amount of money (here $37,000,-000) could be contained in one certificate. In this situation, the taxpayer might be enticed to set an arbitrary value on his parcel, substantially less than full value, knowing that no purchaser will submit a bid exceeding his own appraisal. The possibilities are few indeed that a buyer blessed with such affluence will be prepared to make a cash offer at the auction.

To eliminate this possibility, appellant suggests the proper construction of the statute to be that in all instances real property must be divided into parcels equaling not more than $200,000 in value for utilization of Pope’s law. This interpretation also begets an unreasonable result. It debars utilization of Section 194.042, Florida Statutes (1975), for any single improvement parcel in excess of $200,000. To illustrate, any high-rise office or residential building constructed on one parcel that exceeds $200,000 in value could not be divided by floor or other device to obtain $200,000 increments.

Conscious as we are of the inveterate maxim of statutory construction that statutes are to be construed whenever possible to avoid constitutional infirmities, State v. Gale Distributors, Inc., Case No. 49,297, filed March 24, 1977; State v. Beasley, 317 So.2d 750 (Fla.1975); North Port Bank v. State Department of Revenue, 313 So.2d 683 (Fla.1975); State v. Ecker, 311 So.2d 104 (Fla.1975); State v. Dinsmore, 308 So.2d 32 (Fla.1975); Sarasota County v. Barg, 302 So.2d 737 (Fla.1974); Rich v. Ryals, 212 So.2d 641 (Fla.1968); nevertheless we are constrained to strike down those acts of the legislature which violate our Constitution. Section 194.042 is such an act. Accordingly, we affirm the order of the trial court declaring Section 194.042, Florida Statutes (1975), unconstitutional as violative of Article VII, Section 4, Florida Constitution.

This decision shall be prospective from the date it becomes final and shall not affect in any way the title to any property previously sold or any valuation previously determined pursuant to Section 194.042, Florida Statutes (1975), or its predecessors.

It is so ordered.

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

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

The majority opinion declares Section 194.042, Florida Statutes, (Pope Law), to be unconstitutional because it provides a method for determining “just valuation,” which is in conflict with Article VII, Section 4, Florida Constitution.

The Constitution requires the legislature to prescribe “general law regulations,” which shall secure a just valuation of all property for ad valorem taxation.

When the owner elects to follow the procedure of the Pope Law, he then becomes a “willing seller,” as the election is purely voluntary. No one is forced to buy, so we have to say that the buyer is a “willing buyer.”

The eight factors prescribed in Section 193.011, Florida Statutes, in determining just value are artificial means which the legislature has designed to measure the price a potential buyer would be willing to pay for the property sought to be valued. These factors are always considered when a judgment to buy is made by any prospective purchaser.

In my opinion the statute is the most direct method of determining a fair market value and provides a more accurate method than the subjective opinion of the Department of Revenue (Section 193.114, Florida Statutes), the Board of Tax Adjustment (Section 194.015, Florida Statutes), or the courts in reviewing the propriety of an assessment (Section 194.171, Florida Statutes).

The mandate of the Florida Constitution is that just valuation must be reached under regulations provided by general law. There is no constitutional mandate that the tax assessor be the sole instrument through which this result is reached.

The statute is an innovation but, to me, it is a more accurate method to set the level of assessment.

      . § 194.042(l)(b), Fla.Stat. (1975), states:
      “Within 10 days after filing the notice prescribed in paragraph (a) the owner shall deliver to the [property appraiser] the following:
      1. A certificate executed by the property owner, stating the amount he ascertains to be a just valuation of his property, together with an accurate description of the property. A certificate may include more than one parcel of land so long as all parcels are contiguous and the amounts asserted as the just valuation are itemized for each parcel, providing, however, no such certificate shall contain property the assessed value of which is in excess of $200,-000. ...”

      . § 194.042(l)(b)(2), Fla.Stat., requires the property owner to put up a deposit or surety bond as a prerequisite to challenging the value fixed by the property appraiser under Pope’s law:
      “Written authorization to the [property appraiser] requesting and empowering him to advertise and conduct a public auction for the purpose of receiving cash offers for the property in amounts of not less than the amount set forth in the certificate. This authorization shall be accompanied by a filing fee of $15 and a cash deposit or surety bond in the amount of 10 percent of the value of the property stated in the certificate.”

      . The traditional test for determining fair market value anticipates that the seller is not obliged to sell. The implication, however, is that this hypothetical seller is not compelled to negotiate a sale to begin with. Once he negotiates a sale and signs a contract for its consummation, he ordinarily is legally bound to perform. In contrast, the property owner who utilizes Pope’s law is unobliged to sell even after the “quasi-forced” sale has been consummated. Such action by the hypothetical seller would entitle the hypothetical buyer to damages or specific performance.

      . If a bid is received, valuation is not established even at that date, supra.

      . The procedures outlined under § 194.042, Fla. Stat. (1975), are distinguishable from the other statutory devices which appellant suggests are alternatives to the appraiser establishing just valuation. These statutory devices include review of the tax rolls by the Department of Revenue (§ 193.114, Fla.Stat. (1975)), appeals to the Property Appraisal Adjustment Board for relief from assessment (§ 194.015, Fla.Stat. (1975)), and actions in the circuit court to review the propriety of assessments (§ 194.171, Fla.Stat. (1975)). Each of these statutory procedures or judicial proceedings treats all taxpayers alike because they assume the valuation of the property as of January 1 of the tax year in question. Under § 194.042, Fla.Stat. (1975)), there is no reversion to the first of the year for purposes of establishing just valuation.
      We would also note the First District Court has recognized the possibility of fluctuation in the value of property. In Culbertson v. State Road Dept., 165 So.2d 255 (Fla. 1st DCA 1964), an eminent domain proceeding, that court held that an appraisal made four months before the date of taking was to remote to serve as a competent basis to determine value as of the date of taking.