text:
    Henry Lewis SWINT v. STATE.
    5 Div. 607.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      John Ben Jones, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of the murder of Dollie Maude Owens. The court fixed his punishment at imprisonment for fifty years and sentenced him accordingly.

The badly decomposed body of the alleged victim was found on September 3, 1980, in some weeds and bushes near a school playground in Lafayette, Alabama. The coroner and other authorities took charge promptly. The body was not identified until skin from her fingers had been determined to be that of the alleged victim by means of fingerprint procedures that disclosed that fingerprints therefrom matched previously taken known fingerprints of Dollie Maude Owens, an apparently well known black female who resided in Lafayette. Able expert witnesses testified to bruises and gashes on her body, and, according to their opinion, she had died from strangulation some time between six days and three days prior to September 3. Upon the establishment of her identity, it was determined that she had been last seen at various places in Lafayette on Saturday afternoon and night August 30, 1980. There was evidence that she was seen with defendant about midnight of August 30-31, and that she had never been seen alive since that time.

The defendant did not testify, but a written incriminating statement signed by him was admitted in evidence, which revealed that he was drinking and going around with the victim about midnight of August 30-31, that they had an argument about some money and that he hit her with his fist. He said, “I hit her up around the front of her neck, and she fell and hit her head on the curb.” According to the written statement, defendant then picked her up, “toted her down back of Southside School and laid her down back of the playground in some bushes.”

Four of appellant’s contentions are without merit, in our opinion. Neither the evidence nor any of the authorities cited by appellant supports any of his four numbered contentions as follows:

1. There was no proof of jurisdiction and venue.
3. There was no proof of the corpus delicti.
4. There was no proof of the elements of the crime of murder.
5. The “Chain of Custody of Evidence,” referable to the state and condition of the body of the alleged victim from the time it was discovered until it was released by the authorities for preparation for burial, was not shown.

By appellant’s only other contention for a reversal (Contention No. 2), he challenges the ruling of the court admitting in evidence, over defendant’s objection, his written incriminating statement, saying that “the state has not met its burden of proving that the Defendant’s statement was given freely, intelligently and voluntarily and was not a product of indirect coercion.”

The penned statement, with the letters of each word thereof formed separately without joinder, is tantamount to a confession that he killed Dollie Maude Owens; it is not tantamount to a confession that he murdered her, that he killed her intentionally. However, the whole of the evidence, including the statement, was sufficient to present a jury issue as to defendant’s guilt of murder.

As a preliminary to the introduction of the statement in evidence during the direct examination of Lafayette Chief of Police Mike Looser as a witness for the State, the following occurred:

“Q. Did you have anything else to do in connection with this case?
“A. Yes, I did.
“MR. GAVIN: [Counsel for the State]: May I approach the bench?
“THE COURT: Yes, sir.
“(Thereupon there was a discussion at the bench between the Court and counsel)
“THE COURT: Ladies and Gentlemen, there is a legal matter that I must take up at this time. This legal matter is not for your consideration, this is a question strictly for the Court and I must make a determination as to the legal issue. So I will ask you to step into the jury room and I will direct you that during this recess you will not discuss this case or any aspect of the case.
“If you would, step into the jury room. “(Thereupon the jury went into the jury room at 2:30 P.M. and the following occurred outside of their presence.)
“MR. GAVIN:
“Q. Chief Looser, during your participation in the investigation of this case, did you have the occasion to take a statement from the defendant, Henry Swint?
“A. That’s correct I did.”

Thereupon, counsel for the State proved by the witness that he had advised the defendant “of his constitutional rights which we have on a card,” which purportedly included the Miranda rights, the rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).” It was further shown by the testimony of the witness that no violence or threat of violence to defendant occurred, that defendant apparently understood his rights and that no offer of any kind was made to induce him to make a statement. The statement was then presented and read into the transcript, and counsel for the State said: “We move to admit that in evidence, Your Honor.”

Immediately thereafter, cross-examination of the witness was commenced. It included the following:

“Q. Now, you state that this was taken down at the Department of Public Safety, is that correct?
“A. That’s right.
“Q. Now, I assume that you and Mr. Swint didn’t just meet down there, did you?
“A. No, sir, we did not.
“Q. He was taken down there?
“A. That is correct.
“Q. By whom?
“A. By myself and Sgt. Willie Washington of the Lafayette Police Department.
“Q. For what purpose?
“A. For a polygraph test.
“Q. Now, you state that you and Sgt. Washington took him down there?
“A. That is correct.
“Q. Did you then deliver him into someone else’s custody?
“A. Deliver him into someone else’s custody? No sir.
“Q. You weren’t with him when the polygraph test was conducted, were you?
“A. No sir, no sir.
“Q. Who was he with?
“A. He was with Sgt. Mac Cloud of ABI. Sgt. John M. Cloud. These polygraphs are—
“Q. —Have you seen—
“A. —sir?
“Q. When was the last time you saw Sgt. Cloud?
“A. I don’t think I’ve seen him since that day.
“Q. Was there anyone else present?
“A. No sir.
“Q. So you did deliver him to Sgt. Cloud, did you not?
“A. I wouldn’t say ‘delivered,’ I carried him down there.
“Q. And then he was put into custody?
“A. No sir, he was not put into custody of Sgt. Cloud.
“Q. Why do you make a distinction?
“A. Because he wasn’t under custody. He was down there on his own free will.
“Q. But, you make a distinction?
“A. Yes, sir.
“Q. If you take a, say, handed me that piece of paper there you would deliver custody of it, of that paper, wouldn’t you?
“MR. GAVIN: Judge . . .
“A. —No sir, I wouldn’t think so. I would hand you the piece of paper.
“Q. But custody would actually change hands.
“MR. GAVIN: Judge, we object to this line of questioning.
“THE COURT: I have a hard time seeing how it’s connected. I sustain the objection.
“Q. But he went into the room with Sgt. Cloud?
“A. That’s correct.
“Q. You, nor Sgt. Washington, went into the room?
“A. No sir.
“Q. Do you have any knowledge as to what subjects (indiscernible)—
“A. —no sir.
“Q. But when he came out of there he said he was going to give you a statement, didn’t he?
“A. Sir?
“Q. When he came out of that room he said that he was going to give you a statement?
“A. I asked him would he like to make a statement.
“Q. And he said, ‘Yes.’
“A. That is correct.”

There soon intervened references to the polygraph test, as to which the witness did not participate, and the cross-examination continued as follows:

“Q. Now, prior to that, did you and Sheriff Morgan ever have occasion to interrogate the defendant?
“A. No sir.
“Q. Was there a time or occurrence when you or the sheriff were together with the defendant?
“A. No sir.
“Q. There was not?
“A. Not to my knowledge. No sir. Sgt. Washington must have talked to the defendant. He advised he did not want to make a statement and we did not ask him another question.
“Q. When was this?
“A. It—
“Q. —he stated that he did not want to make a statement?
“A. That is correct.
“Q. When was this?
“A. No way I can tell you that?
“A. [Sic] Were you present when the defendant talked with Mr. Cook an attorney in this case?
“A. No sir.
“Q. You were not?
“A. No sir.
“Q. Did the defendant state to you that he wanted a lawyer?
“A. Yes sir. That is the exact reason I did not ask him another question.
“Q. Did you get him a lawyer?
“A. Did I get him a lawyer? No sir, I didn’t get him a lawyer.
“Q. Nobody got him a lawyer?
“A. It seems to me like the Court did. You are here.
“Q. At that time which was prior to this statement he had asked for a lawyer? “A. That’s what he said. He would not make a statement without a lawyer.”

The jury was then returned to the courtroom, and the direct examination of the witness was resumed, in which he repeated in substance his testimony that he had given during the hearing out of the presence of the jury as to defendant’s being apprised of his constitutional rights and that nothing was done or said to “induce or coerce him to make a statement.” The witness produced a copy of the written statement and was asked to read it to the jury. The transcript shows the following objection and ruling of the court:

“MR. PHILLIPS. We renew our objection, Your Honor.
“THE COURT: Overrule your objection.”

The statement was then read in its entirety, and the following occurred:

“MR. GAVIN: Will you mark this please.
“(Thereupon the statement above referred to was marked State’s Exhibit # 3 for identification purposes.)
“MR. GAVIN: Your Honor, we offer to admit in evidence, State’s Exhibit # 3.
“MR. PHILLIPS: Objection.
“THE COURT: Overrule your objection. It will be admitted.
“MR. GAVIN: That's all we have.
“THE COURT: You may cross-examine.”

The cross-examination was short and was devoted almost exclusively to a development of the point that the statement didn’t “say anything about intending to kill her.”

According to the undisputed evidence, when defendant was in custody and was first sought to be interrogated after being apprised of his “constitutional rights,” he definitely made it known to the officers that he would not make a statement to them, without a lawyer, and that the written statement he thereafter gave, which was admitted in evidence over the objection of defendant, was not made until a colloquy as to whether he would make a statement had been initiated by the officer, or officers, to whom he made the statement. In our opinion, the obtainment of the statement under such circumstances runs afoul of what was held in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as supplemented by Edwards v. Arizona, 450 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The following from Edwards v. Arizona, at 101 S.Ct. 1884-1885, suffices, we think:

“. . . [W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.”

To any contention that defendant did not strongly and sufficiently press objections to the introduction in evidence of defendant’s incriminating statement, we suggest that perhaps there was some vacillation on his part as to whether, when taken alone, it helped defendant more than it hurt him, in its tendency to show that he did not intentionally kill the alleged victim. At any rate, his objections and the action of the court in overruling them were unequivocal.

By reason of the action of the court in overruling defendant’s objections to the introduction in evidence of his incriminating statement, the judgment of the trial court should be reversed and the cause remanded for another trial.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Larry Lee HARDY v. STATE.
    6 Div. 597.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      Samuel R. Pennington, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted for burglary in the first degree on June 6, 1980. At arraignment, appellant entered a plea of not guilty. The trial judge denied appellant’s pretrial pro se motion for speedy trial, as well as his motion to dismiss the indictment for lack of sufficient notice of the particular crime charged. Appellant was tried before a jury and found guilty. After hearing evidence on prior felonies, the trial court sentenced the appellant to life without parole. This appeal followed.

Ms. Loyce Sutton, the resident of the burglarized dwelling, testified she lived at 5624 7th Avenue South, Crestwood, in Birmingham, Jefferson County, Alabama. Ms. Sutton received a telephone call at work at 9:30 a. m., on March 5, 1980, from a neighbor, Ms. Clotfeltor, which prompted her to leave for home immediately. She recalled that she had locked both her front and back doors before leaving for work at 7:30 a. m. When she arrived home, she observed Ms. Clotfeltor and her daughter in their parked automobile in front of her residence. The companion who had driven Ms. Sutton home parked her vehicle in front of a next door neighbor’s house. Another neighbor, Ms. Young, who had been knocking on Ms. Sutton’s front door, was standing in the driveway. Another automobile was parked across the street from Ms. Sutton’s residence.

As Ms. Sutton got out of the vehicle and walked towards her house, someone shouted at her, causing her to get back into the automobile. Her driving companion then told her the man was approaching with a gun in his hand, and Ms. Sutton looked and saw a man in a light tan coat crossing her front yard toward the street and the vehicle parked across from her house. She immediately got down on the floorboard, after which she heard a gun fire. She sat up and saw the man drop either a gun or a holster, stop and pick it up, and then get in his vehicle and drive away. The police arrived shortly thereafter and she entered her back door with them. The door had been broken open, the deadlock bent, and the inside door facing torn loose. $2600 in silver and jewelry was missing, the bedroom had been ransacked, and a .31 caliber pistol was gone.

Anne Clotfeltor, Ms. Sutton’s neighbor, stated she and her mother passed Ms. Sutton’s residence around 9:00 a. m. on March 5, 1980, as they drove home from the grocery store. They observed a green Monte Carlo parked in front of the house and two black males on the doorsteps. About 9:30 they left their house, and as they drove by Ms. Sutton’s, they noticed the Monte Carlo had been moved to the opposite side of the street. The two women drove down the alley behind Ms. Sutton’s house and saw that the back door was open. They then returned home, where her mother made a phone call. They left home again and parked on the street near Ms. Sutton’s house. They talked with Ms. Young about the strange automobile, and then Ms. Clot-feltor walked around behind a neighboring house where she observed two black males about to exit from Ms. Sutton’s back door. She called her dog, and the two men went back inside the house. Ms. Clotfeltor then returned to the front and told her mother and Ms. Young that somebody was in the house. She then went back behind the house again and saw the two black males coming out the door again. One of the men was carrying a pink pillow case that appeared to be filled with items. The men proceeded through the back yard towards the alley. When the men saw Ms. Clotfeltor, one of them waved a gun at her. They then jumped the fence into the alley. She returned to the front and told the other ladies the man had a gun. After about five minutes, one of the men, dressed in a knee length tan coat, came around to the front walking towards the green Monte Carlo. He fired a shot towards the ladies, and then got into the automobile and drove away headed toward the alley. As he drove away Ms. Clotfeltor observed the tag number, which she verified with another neighbor who had written down the number. The police arrived shortly after the men departed.

Elise Clotfeltor, Anne Clotfeltor’s mother, substantiated her daughter’s testimony. She stated the getaway car was a black two door Chevrolet with narrow stripes. She was the person who called Ms. Sutton at work, as well as the police. She also recalled that the man wore a long tan coat.

Mary Young, another neighbor, observed a vehicle with stripes and the word “Chevy” printed on it parked across the street from Ms. Sutton’s house on March 5, 1980. After trying to call some neighbors, she then took a pen and a directory and walked up the street and wrote down the automobile tag number. Ms. Young identified the directory at trial as the one on which she had transcribed the tag number E-R-H-8-5-1, as well as the word CHEV, indicating the vehicle was a Chevrolet. After taking down the tag number, she knocked on Ms. Sutton’s front door, but heard nothing in response. At that time, Ms. Clotfeltor and Ms. Sutton arrived in separate vehicles, Ms. Young heard a shot shortly thereafter, and ran to her house. As she entered her house, she looked back and saw a black man entering the automobile parked across from Ms. Sutton’s. She then called the police.

G. C. Rhodes, a Birmingham police officer, answered a police dispatch to 5624 7th Avenue South on March 5, 1980, at approximately 9:40 a. m. He received a tag number from Mary Young, which she had written on a piece of paper. He called the number in and found the tag was registered to the appellant, Larry Hardy, at 2911 6th Avenue South, for a 1970 Chevrolet Monte Carlo.

Officer Stan McConnell of the Birmingham City Police, testified he went to the area of the appellant’s residence on March 5, 1980, in response to information he received on a burglary. Around 11:00 a. m. he observed a 1970 black Monte Carlo with pinstripes, followed by a Dodge Challenger, turn into the residence he had been watching, and drive around behind the house. He observed the appellant about to open the front door to enter the house. Officer McConnell shouted for the appellant to stop, and then appellant ran into the house. Officer McConnell then took the occupant of the Dodge, identified as Nelson McKee, into custody. Some fifteen minutes later, he observed the appellant again in front of the residence, in the back of a police vehicle. The appellant was wearing a long, light brown coat.

Douglas Riley, a Birmingham police officer, testified he received a lookout order for Larry Hardy on March 5, 1980. He observed the appellant in the alley behind his residence around 11:00 a. m. and gave chase as appellant fled. He apprehended the appellant after chasing him over several city blocks. The appellant was wearing a camel-colored coat. When apprehended the appellant identified himself by some name other than Larry Hardy. Officer Riley took the appellant into custody, advised him of his rights, and told him he was being arrested as a suspect in a burglary.

J. W. McKay, a Birmingham police officer, stated he talked with the appellant at the Birmingham City Jail on March 6, 1980. After informing the appellant of his Miranda rights, and having appellant read and sign a waiver of rights form, he took an oral statement from the appellant. He then had appellant write the statement in his own handwriting. Officer McKay’s account of the statement appears in the record as follows:

“He told me that he and another Defendant, Nelson McKee went to 5624 7th Avenue South and knocked on the front door of the residence; there was no answer. He went to the rear door and broke into the rear entrance of the house and went inside and took various items out of the household and merchandise, guns, candle-holders, and put them in a pink pillowcase and as they were in the process of doing that, someone knocked on the door and frightened them off, and they exited out the rear door, and when they left out the rear door, he said he saw someone standing in the rear and in the front yard and fired a firecracker to scare the people off and they left.” (R. p. 143)

Officer McKay testified he in no way threatened the appellant, nor did he offer him any hope of reward or help for making the statement.

The State rested at the close of Officer McKay’s testimony. The appellant’s motions to exclude Officer McKay’s testimony and for a directed verdict were overruled. The appellant then rested without presenting any testimony.

Appellant contends his motion to exclude his statement to Officer McKay was erroneously denied by the trial court in that the statement was improperly obtained. Appellant argues the length of time between arrest and the interrogation, coupled with the fact that appellant did not have counsel present at the interrogation, rendered the statement inadmissible. As well, he asserts the appellant was pressured and persuaded into making a statement by threat and promise of collateral benefits by Officers Hill and McKay. Testimony given by appellant on voir dire in support of his motion indicated that Sergeant Hill and Officer McKay told appellant he would be charged with additional burglaries if he did not show the police what he had done with the stolen items. He testified he was placed in a police vehicle and driven about town to point out various places he had burglarized. He further testified that, although Officer McKay did read him his rights, and allowed him to read them himself, he had told Officer McKay he did not understand the lower portion of the waiver of rights form. He stated Officer McKay would not explain the form, but rather just told him to sign it. Appellant stated that he was frightened when he signed the form, and felt he was being threatened.

The only statement introduced at trial was one made by appellant to Officer McKay. However, Sergeant Hill testified on voir dire and stated that he had talked with appellant on March 5,1980. He stated that to his knowledge, no one threatened, coerced, or made any promise to appellant. He testified he read appellant his Miranda rights from a card, and that appellant told him he understood his rights. Sergeant Hill never told appellant that if he did not cooperate that other cases would be brought against him. Neither was appellant forced to go and identify other burglary locations to Sergeant Hill’s knowledge, although he did think appellant had shown some other officers some of the places he had burglarized.

Officer J. W. McKay testified on voir dire that he questioned appellant on March 6, 1980, in a Birmingham city jail interrogation room. No one other than McKay and appellant were present. Officer McKay stated that, prior to the conversation, no one to his knowledge told appellant it would be better or worse for him if he testified, nor was any promise or reward offered. Appellant was neither abused nor coerced into making a statement. Officer McKay identified a Miranda warning and waiver of rights form which he both read to appellant and allowed appellant to read aloud. Appellant then signed, dated, and noted the time of day on the waiver. Appellant then proceeded to orally tell the events of the burglary to Officer McKay. McKay then requested that appellant make the same statement in his own handwriting, which appellant voluntarily did.

A confession is presumed to be involuntary and hence, before its admission, there must be evidence presented to the trial judge sufficient to rebut the presumption. Such evidence must show the confession was made freely and voluntarily, without the influence of hope or fear, unless attending circumstances affirmatively disclose the voluntariness of the confession. Eakes v. State, Ala.Cr.App., 387 So.2d 855 (1978). The trial judge must examine all attendant circumstances in making the determination of voluntariness, allowing each case to stand or fall on its own individual merit. The ultimate inquiry, therefore, is whether the appellant's rational intellect and free will were overcome at the time he confessed, thus rendering the confession involuntary. Eakes, supra. The determination of the voluntariness of the confession is within the sound discretion of the trial court. Crawford v. State, Ala.Cr.App., 377 So.2d 145, Ala., 377 So.2d 159 (1979).

We have reviewed all the testimony concerning the issue of voluntariness, and are convinced the trial judge did not abuse his discretion in finding that the statement was voluntarily made. The evidence does not reasonably prove that appellant was threatened or coerced into making the statement, or promised some benefit in exchange therefor. Neither is there any reasonable inference of adverse effect caused by either the timing or nature of the interrogations by Officer Hill and Officer McKay. Austin v. State, 56 Ala.App. 307, 321 So.2d 272 (1975). The confession met all the requirements of voluntariness. Appellant was properly advised of his rights, including right to counsel, and knowingly and intelligently waived the same. The confession was properly admissible.

Appellant contends the indictment was insufficient as drawn to apprise him of the charge against which he was to defend. His pretrial motion to dismiss the indictment on that ground was denied. The indictment appears in the record as follows:

“The grand jury of said county charge that, before the finding of this indictment, LARRY LEE HARDY, whose name is to the grand jury otherwise unknown, did, knowingly and unlawfully enter or remain unlawfully in a dwelling of LOYCE M. SUTTON with intent to commit a crime therein, to-wit: theft, and while effecting entry or while in the dwelling or in immediate flight therefrom, said defendant or another participant, to-wit: NELSON MeKEE, was armed with an explosive or deadly weapon, to-wit: a pistol, in violation of § 13A-7-5 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

A demurrer is the normal procedure to raise defects going to the validity of an indictment. Due process mandates that a defect pertaining to an essential element of the offense, which renders the accused unaware of the nature and cause of the charge against him, cannot be waived by failure to demur. An indictment must contain the elements of the offense charged, and also sufficiently apprise the appellant of what he must be prepared to meet. Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). The indictment in the instant case was proper in form and substance, being sufficient in and of itself to acquaint appellant with the crime charged, as well as with what he must be prepared to defend against. Green v. State, 34 Ala.App. 66, 36 So.2d 601 (1948); Hamilton v. State, 283 Ala. 540, 219 So.2d 369 (1969).

Appellant contends the trial court erred in denying his pretrial motion for dismissal based upon lack of a speedy trial, caused in whole by unnecessary delay by the prosecution.

The crime for which appellant was tried occurred on March 5, 1980. Appellant was arrested on March 5, 1980, and indicted on June 6, 1980. He was arraigned and pleaded guilty on June 20, 1980. The pretrial hearing conducted by the trial court on appellant’s motion indicated appellant was tried on September 30, 1980, for a burglary that occurred on February 19, 1980. He was next set for trial and pleaded guilty on December 16, 1980 for another burglary that occurred on February 15, 1980.

The appellant’s record before the court indicated counsel was appointed for appellant on June 20, 1980. After pleading not guilty on June 20, appellant’s case was passed from July to September to October to December and finally to March 20, 1981.

No demand for speedy trial was ever made by appellant. The issue was raised by appellant’s pro se pretrial motion to dismiss for lack of a speedy trial.

Considering appellant’s contention in light of the four factors outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find no denial of appellant’s right to a speedy trial. Barker requires us to review: (1) the length of delay, (2) the reason for delay, (3) appellant’s assertion of the right, and (4) prejudice to the appellant. The time between arrest and trial was approximately one year. The delay was caused by trial dates set for other crimes which occurred prior to the instant crime. Appellant made no assertion of his right until the end of February, 1981, before the trial in March of 1981. Because appellant was found guilty or pleaded guilty to other prior crimes which necessitated the delay of this trial, his freedom was not unnecessarily impaired by the delay. We have reviewed and considered all four factors and find no unconstitutional impairment of appellant’s rights to speedy trial. Brown v. State, Ala.Cr.App., 392 So.2d 1248 (1980), cert. denied, Ala., 392 So.2d 1266 (1981). No error harmful to the substantial rights of appellant having been found, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Patricia SMITH v. STATE.
    6 Div. 691.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Richard S. Jaffe, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Probation revocation.

On October 3, 1978, appellant was placed on two years’ probation after having pled guilty to forgery. On June 18, 1980, the judgment entry reflected “that the defendant has probably violated the terms of her probation.” The trial court issued a warrant for her arrest which was executed on May 9, 1981. Between the time of the issuance of the warrant and her arrest, appellant was arrested on and found guilty of three Birmingham city ordinance violations. A probation revocation hearing commenced on May 22, 1981, but was continued without taking evidence to June 5, 1981, when an evidentiary hearing was held.

I

Appellant contends that she was not given adequate written notice of the claimed probation violation.

The record reflects that on May 22, 1981, appellant signed a probation violation notification form which indicated that appellant had failed to report to her probation officer as required under the terms of her probation. In revoking appellant’s probation, the trial court expressly found this violation to be sufficient to support revocation of probation. Thus, as to this probation violation, appellant had adequate notice. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1976).

II

Appellant additionally contends that she was not given adequate written notice that three city ordinance convictions would be considered as additional grounds for revoking her probation.

At appellant’s initial hearing on May 22,1981, vague references were made to the above city convictions. One in particular was mentioned, but no written notice of the claimed probation violations was given to appellant. The record contains duplicate written notice dated June 4, 1981, one day before appellant’s evidentiary hearing, listing one of the convictions as grounds for revocation. However, the listed conviction was not the same as that mentioned at appellant’s initial hearing. The notices were not signed by the appellant. In addition, there was no indication in the record that the evidence concerning any of the three convictions was disclosed to the appellant prior to her June 5 evidentiary hearing.

It is clear that the appellant was not given written notice of the above claimed violations. Furthermore, no disclosure of the evidence against her to support revocation based upon the convictions was made. Thus, until the evidentiary hearing, appellant could only speculate as to the claimed violations and evidence against her.

It is clear that requirements 1 and 2 of Armstrong, supra, were not fulfilled. Such constitutes reversible error. Levert v. State, 373 So.2d 1263 (Ala.Cr.App.1979). See also Vandiver v. State, 401 So.2d 326 (Ala.Cr.App.1981). It is therefore unnecessary to review the appellant’s other ground for error.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Rex Ellis SEGARS v. STATE.
    6 Div. 701.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      Kenneth H. Weldon of Bland, Bland & Weldon, Cullman, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted in a two count indictment with theft of property in the second degree and with receiving stolen property in the second degree. A jury found him guilty of receiving stolen property as charged in the second count.

The jury’s verdict operated as an acquittal of the defendant for the theft of the ring as charged in count one of the indictment. Jacobs v. State, 28 Ala.App. 585, 190 So. 295 (1939).

I

The defendant argues that the State failed to prove venue of the charge of receiving stolen property in Cullman County. It is undisputed that the ring was stolen in a robbery which occurred in Cullman County. The ring was recovered from an individual who purchased the ring from the defendant in Morgan County.

Johnny Nesmith, an investigator for the Department of Public Safety, testified that in his investigation of the case he questioned the defendant at the Hartselle Police Station in April of 1980. After knowingly and intelligently waiving his constitutional rights, the defendant told Nesmith that he won the ring in a poker game in Vinemont. We take judicial notice that Vinemont is located in Cullman County. Barbee v. State, 395 So.2d 1128 (Ala.Cr.App.1981).

In a criminal case, proof of venue is sufficient if it can be reasonably inferrad by the jury from the facts and circumstances adduced. Allen v. State, 374 So.2d 447 (Ala.Cr.App.1979); Tanner v. State, 37 Ala.App. 256, 66 So.2d 827, cert. granted, 259 Ala. 306, 66 So.2d 836 (1953). Venue need not be proven by direct evidence, but evidence from which venue may be inferred is sufficient. Goodwin v. State, 27 Ala.App. 493, 175 So. 415 (1937). Venue may be established by the testimony of one witness. Wilson v. State, 384 So.2d 1243 (Ala.Cr.App.1980).

Consequently, we hold that the evidence was sufficient to prove that the venue for the charge of receiving stolen property was in Cullman County. Even if receiving stolen property is not considered ambulatory under Alabama Code 1975, Section 15-2 — 9, see the special concurrence of Judge Bookout in which Judge Bowen joined in Kilpatrick v. State, 383 So.2d 863, 867 (Ala.Cr.App.), cert. denied, 383 So.2d 867 (Ala.1980), the venue was properly and sufficiently proven in this case.

II

The defendant also argues that the trial court erred in denying his motion to exclude the State’s evidence as to count one of the indictment charging theft because the State failed to introduce any evidence to connect the defendant with the theft of the stolen property.

In this case the jury found the defendant guilty as charged in count two of the indictment. It did not return a general verdict.

The correct proposition of law supported by those cases cited by the defendant is:

“When a general verdict is returned in a case where the evidence is sufficient to support one or more counts in the indictment, but insufficient to support others, and the affirmative charge as to those unsupported counts is refused, such action by the trial court is reversible error. Jones v. State, 236 Ala. 30, 33, 182 So. 404 (1937); Hawes v. State, 216 Ala. 151, 152, 112 So. 761 (1927); Stover v. State, 36 Ala.App. 696, 698, 63 So.2d 386 (1953).” Nicholson v. State, 369 So.2d 304, 306 (Ala.Cr.App.1979).

Although the defendant cannot be convicted of both the theft of and the receiving of stolen property where the property is the same, Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978), where the evidence affords a reasonable inference that he is guilty of one or the other, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury and let them decide of which crime the defendant is guilty. Thomas v. State, 389 So.2d 552, 555 (Ala.Cr.App.1980).

Any error in refusing to direct an acquittal as to one count is harmless where the jury acquits thereon. Hamilton v. State, 270 Ala. 184, 116 So.2d 906 (1960); Treadwell v. State, 168 Ala. 96, 53 So. 290 (1910).

We have searched the record and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Tommy WAITES v. STATE.
    7 Div. 879.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      R. Bradford Wash, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence for the offense of burglary in the second degree. No question is raised as to the sufficiency of the evidence to support the verdict of the jury finding the defendant guilty, and we are of the opinion that there is no reasonable basis for such a question.

Appellant’s complaint is as to the sentence, which was to life imprisonment pursuant to the Habitual Felony Offenders Act upon proof that defendant had .been convicted of more than three previous felonies.

Appellant's contention is that his “rights under the Due Process and Equal Protection Clauses of the United States Constitution were violated” in that defendant was not given notice before his conviction that the State would proceed against him under said Act. Such a contention has been recently rejected in Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.1981), cert. den. 406 So.2d 1020 (1981), wherein it is stated:

“. .. [W]e hold that there is no requirement that a defendant be notified prior to conviction of the state’s intent to proceed against him as a ‘habitual felony offender.’ What is required is ‘reasonable notice’ prior to the sentencing hearing as prescribed by the Alabama Supreme Court in Rule 6(b)(3)(ii), Alabama Rules of Criminal Procedure, Temporary Rules. Id. at 2.”

Appellant’s only other contention is that the Habitual Felony Offenders Act is violative of “the Due Process and Equal Protection Clauses of the United States Constitution in that sole discretion as to whether the statute is invoked lies with the District Attorney’s office.” On the contrary, it was recently stated in Miliner v. State, (Ala.Cr.App., 7 Div. 839, Ms. Aug. 4, 1981):

“. .. It is our judgment, moreover, that whenever the district attorney has knowledge of a defendant’s prior convictions, he must, as an officer of the court, ‘show’ those convictions to the court, so that the trial judge can sentence the accused in accordance with the clear mandate of the recidivist statute. In other words, we do not believe the prosecution has any discretion about whether or not to ‘show’ the prior convictions; if he is aware of the accused’s record he must apprise the court of that fact.”

Our search of the record discloses no error prejudicial to the defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Thomas Glenn HARRIS v. STATE.
    8 Div. 588.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.

      Charles M. Allen, II, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of Flora Dean Polk. Sentence was life imprisonment. Two issues are raised on appeal.

I

Initially the defendant argues that the absence of the trial judge from the courtroom during a portion of the prosecutor’s closing argument to the jury requires a reversal of his conviction. The record reveals the following:

“(Whereupon Mr. Littrell made closing statements to the jury on behalf of the State of Alabama and, during Mr. Litt-rell’s closing statements to the jury, the court left the courtroom for a short period of time and the following objection was made by Mr. Graham (Defense Counsel)
“MR. GRAHAM: I object to continuing without the Judge on the Bench. I can’t listen to this man and make objections and take notes, and I object to proceeding on the trial without the Judge being on the Bench in this Murder Case.
“(Whereupon the court entered the courtroom and the following occurred)
“THE COURT: All right, go ahead.
“(Whereupon Mr. Littrell continued making closing statements to the jury on behalf of the State of Alabama, following which Mr. Graham made closing statements to the jury on behalf of the defendant, . ..)”

This issue was not made a ground of the defendant’s motion for new trial. The defendant contends that Alabama law requires a reversal of any conviction where the trial judge did not remain in the courtroom during the entire trial.

Our Supreme Court has stated the applicable rule:

“(I)t is the duty of the presiding judge, at all times (unless under circumstances or at a time when his presence may be and is waived) during the progress of a trial-— of which the argument to the jury is an important part of due process — to remain on the bench and in the presence and hearing of the trial and argument to the jury, to see that the trial proceeds in an orderly manner and in accordance with law.
“In 16 C.J. p. 812, Section 2061, the general rule, well supported by authorities, is thus stated: ‘In prosecutions for felonies the great majority of cases lays down the general rule that the continued presence of the judge during the entire course of the trial is essential to the validity of the proceedings, and that his absence during any part of the trial, such as during the examination of a witness, during the argument of counsel, or at the handing in of the verdict (Waller v. The State, 40 Ala. 325; Whitehurst v. The State, 3 Ala.App. 88, 57 So. 1026), whereby he is not in a position to discharge his duties effectively, may vitiate the proceedings, unless he orders a suspension of the proceedings until he returns. This rule, however, does not prevent the judge from reading or writing, or from temporarily engaging in conversation; nor is the absence of the judge from the room reversible error, where he is still within hearing of the argument or evidence, and where he is in a position to pass upon any question which may arise therein.’
“The reasons for this rule are stated by the Iowa court, as follows: ‘ “There can be no court without a judge, and his presence, as the presiding genius of the trial, is as essential at one time as another. The argument is an important part of the proceedings, during which the judge cannot properly absent himself. He should remain within hearing, that he may not even temporarily relinquish control of the proceedings and the conduct of the trial. This is necessary to enable him to intelligently review the proceedings on motion for new trial.” State v. Carnagy, 106 Iowa, 483, 487, 76 N.W. 805.’ ” Smith v. State, 230 Ala. 18, 21, 158 So. 808 (1935).

In Smith, the conviction was reversed because the prosecutor made a prejudicial comment in his argument to the jury during the absence from the courtroom of the judge, who left without the consent or knowledge of defendant’s attorney and went into another room where he could not see or hear any of the arguments or proceedings.

However the rule that it is the duty of the presiding judge to be visibly present during every moment in the trial of the case, so that he can always see and hear all that is being said and done, does not mandate a reversal in every instance of his absence. Although in Thomas v. State, 150 Ala. 31, 43 So. 371 (1907), the defendant made no objection to the judge’s absence, the following comments are instructive in the present situation:

“(W)e are of the opinion that the mere absence of the judge during the progress of the trial, when no objection or point was made at the trial, the absence being only for a few moments . . . does not require or authorize a reversal of the judgment of conviction. Especially so when it does not appear that the defendant suffered any harm or detriment on account of the judge’s temporary absence.” Thomas, 150 Ala. at 48 [43 So. 371] (emphasis added).

In Melvin v. State, 32 Ala.App. 10, 21 So.2d 277 (1944), it was noted:

“In 23 C.J.S., Criminal Law, Section 972, p. 300, after asserting that the general rule requires the continued presence of the presiding judge during the entire proceedings of the trial, the text observes further: ‘Nor, in some jurisdictions, is his absence from the room reversible error, where he remains in a position to observe and hear the proceedings and to pass upon any questions which may arise therein, or where he is at all times within immediate call’ (Emphasis ours.)” Melvin, 32 Ala.App. at 16, 21 So.2d 277.

Finding that the trial judge had only left the bench and not the courtroom, the appellate court stressed the importance of the trial judge remaining visible in the courtroom at all times during the proceedings: “Great care and caution should be observed by the trial judge to avoid even the slightest doubt of his accessibility.” Melvin, 32 Ala.App. at 16, 21 So.2d 277.

In Ex parte Ellis, 42 Ala.App. 236, 159 So.2d 862 (1964), the court found that an affidavit in support of a motion for new trial which asserted that the trial judge left the bench and the courtroom for a period of 15 or 20 minutes during the course of the trial proceedings did not establish that the trial was “lacking in fundamental fairness.”

“From aught that appears in such affidavit, the trial judge did not remove himself to a point where he abandoned supervision of petitioner’s Circuit Court trial or any part thereof. Said affidavit failed to state that said trial judge did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings. “Everything is to be presumed in favor of the regularity of the proceedings of a court of justice.” Ellis, 42 Ala.App. at 239, 159 So.2d 862.

Here, even though defense counsel had no duty to make objection to any offensive or objectionable argument of the prosecutor in the absence of the presiding judge from the courtroom and could have presented objection in his motion for new trial, Woods v. State, 19 Ala.App. 299, 301, 97 So. 179 (1923), there has been no contention that there was any prejudicial remark made by the prosecutor during the trial judge’s absence.

In his brief, the defendant argues that “it is impossible to know what prejudice he suffered in fact.” However, we cannot find that the defendant was harmed in any degree by the absence of the trial judge where there was no allegation made during the course of the proceedings below that he was prejudiced. From the record it does not appear that “the error complained of has probably injuriously affected substantial rights of the parties.” A.R.A.P. Rule 45. Indeed, as in Ex Parte Ellis, there has not even been a showing that the trial judge “did not remain in proximity sufficiently close to hear, see and supervise the entire proceedings.” Ellis, 42 Ala.App. at 239, 159 So.2d 862. For these reasons, we conclude that under the facts of this particular case the trial judge’s absence does not require a reversal of the defendant’s conviction.

II

After both the State and the defendant had rested their cases, the State was allowed to reopen its case and put on evidence in rebuttal of the defendant’s testimony. The defendant argues (1) that the evidence the State presented on rebuttal should have been introduced during its case in chief, and (2) that the trial court’s refusal to permit the defendant to present surre-buttal evidence constituted reversible error.

On cross examination, the defendant testified that he never told Sheriff’s Investigator Richard Montgomery that he would swear that he had not been to the house of the deceased on the night of the homicide. At that time defense counsel was allowed to see the memorandum the prosecutor was using to cross examine the defendant. On redirect examination of the defendant, defense counsel did not pursue this matter. The defense rested its case at the close of the defendant’s testimony.

On rebuttal, the State called Investigator Montgomery who testified to the fact that the defendant had made the statement to him. During the State’s rebuttal, a hearing was held outside the presence of the jury on the issue of the admissibility and voluntariness of the defendant’s statement to Investigator Montgomery. During this hearing the defendant took the stand and denied being informed of any of his constitutional rights and denied having made the statement. After witness Montgomery was excused from the stand, the State rested its case and the following occurred:

“THE COURT: All right, ladies and gentlemen, that concludes the evidence, and—
“MR. GRAHAM: May it please the Court, now, could I have the courtesy to see if we have got anything to put on in Rebuttal—Surrebuttal.
“THE COURT: That’s the end of that.
“MR. GRAHAM: Let the record show that we have other evidence that we wanted to consider putting on Surrebut-tal, and the Court has denied us the right at this moment to do so.”

“It is within the discretion of the trial court to receive, in rebuttal, testimony which more properly should have been offered as part of the case in chief. Nichols v. State, 276 Ala. 209, 160 So.2d 619 (1964).” Ford v. State, 383 So.2d 601, 604 (Ala.Cr.App.1980).

“A trial court is clothed with wide discretion in the matter of permitting surrebuttal evidence”, although the court’s action in this regard is reviewable on appeal. Ellison v. State, 33 Ala.App. 405, 406, 34 So.2d 185 (1948). Rebuttal and surrebuttal evidence is properly confined “to material within the scope of the preceding adverse evidence.” “Where, under the circumstances, a party may be entitled to offer evidence in surre-buttal, he will be restricted to such evidence as will rebut the rebuttal evidence, or to the new matter introduced in the rebuttal.” 75 Am.Jur.2d Trial, Section 152 (1974). Ellison, 33 Ala.App. at 406, 34 So.2d 185.

The better rule is that, generally, “(t)he court should permit a witness for defense to go into a matter testified to by him on cross examination after the prosecution has introduced contradictory testimony in rebuttal.” 23 C.J.S. Criminal Law, Section 1050 (1961). However, it has been held that the denial of surrebuttal of impeaching evidence is proper and within the discretion of the trial judge. State v. Blanton, 111 Ohio App. 111, 170 N.E.2d 754 (1960); Jensen v. State, 36 Wis.2d 598, 153 N.W.2d 566 (1967). Yet in other cases a refusal to permit surrebuttal testimony to matters arising in rebuttal has been held error. Birmingham Ry. Light & Power Co. v. Saxon, 179 Ala. 136, 59 So. 584 (1912): “(W)here, . . . testimony is brought out on rebuttal, as to facts which could not have been testified to before, by defendant’s witness, we think justice requires that the defendant should be allowed, in surrebuttal, to contradict the same.” Saxon, 179 Ala. at 159, 59 So.2d 581. We particularly note that in Saxon the defendant made a showing as.to what he expected the evidence to show on surrebuttal. Here no such showing or offer of proof was made.

Because of the nature of the State’s impeaching evidence on rebuttal (either the defendant made the statement or he didn’t), because any evidence on surrebuttal would be limited to showing that the defendant did not make the statement, and because no showing has ever been made as to what the defendant expected to prove on surrebuttal, we are not willing to find that the substantial rights of the defendant were prejudicial and that the trial judge abused his discretion in refusing to grant the request for surrebuttal.

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . In making this comment we intend no criticism of defense counsel who was aggressive and highly competent in his representation of the defendant and preservation of his rights.


text:
    Ronald KENNEDY v. STATE.
    8 Div. 610.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    Edwin L. Yates, Montgomery, for appellant.

      No briefs filed for appellee.
   BOWEN, Judge.

Kennedy’s petition for writ of error eor-am nobis was denied by the circuit court without an evidentiary hearing. The petition is meritorious on its face, Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979), and states matters which, if true, authorize relief. Henry v. State, 387 So.2d 328 (Ala.Cr.App.1980); Goodman v. State, 387 So.2d 861 (Ala.Cr.App.), cert. denied, 387 So.2d 862 (Ala.1979). The Attorney General fully recognizes and admits this principle on appeal.

The judgment of the circuit court dismissing the petition is reversed. This cause is remanded with directions that an eviden-tiary hearing be held at which the defendant is present and represented by counsel. We specifically note that the Attorney General has filed a motion requesting this very same action.

REVERSED AND REMANDED WITH DIRECTIONS. .

All Judges concur.


author: PER CURIAM.

text:
    Lucille BROADEN. v. STATE.
    3 Div. 367.
    Alabama Court of Criminal Appeals.
    Oct. 6, 1981.
    Rehearing Nov. 24, 1981.
   PER CURIAM.

AFFIRMED — NO OPINION.

REHEARING DENIED — NO OPINION.

Writ denied, Ala., 409 So.2d 1011.

All Judges concur.


text:
    Ex parte: Lucille BROADEN. (Re: Lucille Broaden v. State of Alabama).
    81-194.
    Supreme Court of Alabama.
    Jan. 22, 1982.
    Charles M. Law, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Writ denied, 409 So.2d 1011, on authority of Ex parte Smith, 409 So.2d 930 (1982).

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    In re CERTIFICATE OF JUDICIAL MANPOWER FOR DISTRICT COURTS OF APPEAL, CIRCUIT COURTS AND COUNTY COURTS, AS REQUIRED BY ARTICLE V, SECTION 9, FLORIDA CONSTITUTION.
    No. 61524.
    Supreme Court of Florida.
    Dec. 23, 1981.
   Case of Original Jurisdiction.

PER CURIAM.

In accordance with the constitutional responsibility of this Court to review and certify to the Legislature the need for additional judgeships as provided in Article V, Section 9 of the Florida Constitution, and for the reasons set forth below, this Court certifies the need for the following new judicial positions, effective July 1, 1982, for the continued, effective operation of the courts of this State.

On March 13, 1981, this Court issued its certification decision in Case No. 60,359 which addressed the needs of the Judiciary for Fiscal Year 1981-82 and, also, identified certain needs which it then felt would exist during Fiscal Year 1982-83. 396 So.2d 172. Of the circuit judgeships now being certified, five were previously certified for Fiscal Year 1982-83 and one was certified for Fiscal Year 1981-82 which was not authorized by the Legislature. Regarding the new county court judgeships, all five judge-ships which are now being certified were previously certified for Fiscal Year 1981-82, but were not authorized by the Legislature. Thus, of the new judgeships now being certified, only four represent needs which were not previously identified for the 1981-83 biennium.

The certification process began in September, 1981 when the State Courts Administrator provided caseload and population statistics to the Chief Judges in each District Court of Appeal as well as each of the State’s twenty Judicial Circuits. Requests were submitted by the Chief Judges to the Chief Justice in October. These requests included three additional judgeships for the District Courts of Appeal, twenty-four additional judgeships for the Circuit Courts and eleven additional judgeships for the County Courts. During November, the Chief Justice and State Courts Administrator traveled primarily to those areas which had not previously submitted requests for additional judgeships. Participating in these meetings were representatives from the offices of various state attorneys, public defenders, county commissions, local Bar representatives, and legislative members and staff. The several criteria used by the Court in this process and identified in our March, 1981 certification decision, were again utilized.

FINDINGS

DISTRICT COURTS OF APPEAL

Second Appellate District. The Second District currently has nine judges. The need for an additional judge during Fiscal Year 1982-83 is certified.

Some of the factors upon which this certification is based are that the Second District continues to have the highest total population as well as the highest population per judge of any Appellate District. In addition, case filings are now exceeding dispositions, resulting in a growing case inventory.

CIRCUIT AND COUNTY COURTS

First Judicial Circuit (Escambia, Santa Rosa, Okaloosa, and Walton Counties). There are currently fourteen circuit judges in the First Circuit. Our most recent certification decision indicated the likelihood that additional judicial manpower would be required in this circuit before the expiration of the biennium. Furthermore, we indicated that a criterion which would be important in the Court’s consideration of an additional judge for Fiscal Year 1982-83 would be the continued heavy usage of retired judges during Fiscal Year 1981-82. In fact, the First Circuit has continued to rely very heavily on retired judges in order to assist with their caseload. There has been a 31% increase in filings between 1979 and 1981 and it has now been five years since a circuit judgeship was approved for the First Circuit. For these reasons, the need for one additional circuit judgeship is certified.

Fifth Judicial Circuit (Marion, Lake, Sumter, Hernando, and Citrus Counties). The Fifth Circuit currently has nine circuit judgeships. The need for one additional circuit judgeship is certified based upon the very high filing per judge ratio which exists in the circuit, the 32% increase in filings between 1979 and 1981, a very high rate of growth of population in the circuit, the existence of numerous state facilities within the circuit, and the very large geographic size of the circuit. In addition, four of the seven county court judges in the Fifth Circuit are non-lawyers who cannot assist with the duties of the circuit bench. The Fifth Circuit made no request last year, hence, this need was not earlier identified by the Court.

Sixth Judicial Circuit (Pinellas and Pasco Counties). The Sixth Circuit currently has twenty-seven circuit judgeships, and the need for one additional circuit judgeship is certified. This judgeship was certified for the second year of the biennium in our March, 1981 certification decision. We have looked again at the factors which went into our previous determination of need for the Sixth Circuit, and find that this need continues to exist.

Seventh Judicial Circuit (St. Johns, Fla-gler, Putnam, and Volusia Counties). Volu-sia County currently has five county court judgeships, and one additional county court judgeship is certified. This particular county court judgeship was certified previously, but was not authorized. The very high filing per judge ratio existing in the county court in Volusia County, as well as the high population growth and nature of the population existing in Volusia County, reconfirms the need for this additional county court judgeship.

Ninth Judicial Circuit (Orange and Osceola Counties). The Ninth Circuit has seventeen circuit judgeships, and the need for an additional circuit judgeship is certified. This need was certified in our March, 1981 decision, but the additional judgeship was not authorized by the Legislature. The Court has again reviewed the criteria upon which the determination of need was made previously, and finds that the need continues to exist. The very high population growth and nature of the population existing in the Ninth Circuit, the high number of attorneys in the area, and the continued rapid development in the area indicate that this need for an additional judgeship continues to exist.

Twelfth Judicial Circuit (Manatee, DeSo-to, and Sarasota Counties). Sarasota County currently has three county court judge-ships, and the need for an additional county court judgeship is certified. This need was certified previously, but the additional judgeship was not authorized by the Legislature. The Court has reviewed the criteria which it considered in its March, 1981 decision, and based upon those criteria as well as updated statistics finds that this need continues to exist.

Thirteenth Judicial Circuit (Hillsborough County). Hillsborough County currently has nine county court judgeships, and the need for one additional county court judgeship is certified. This Court has previously certified the need for two additional county court judgeships, but an additional circuit judgeship was approved by the Legislature in 1981 in lieu of the county court judge-ships certified. There have been no county court judgeships authorized since 1973. Hillsborough County continues to have a high filing per judge ratio, and a very high population per county court judge compared with other counties in the State.

Fifteenth Judicial Circuit (Palm Beach County). The Fifteenth Circuit currently has nineteen circuit judgeships, and the need for one additional circuit judgeship is certified. This need was previously certified for the second year of the biennium. This Court has reviewed the criteria upon which this certification was based and finds that the need continues to exist. Total filings have increased 33% in the circuit since 1979, and there is a 51% projected population increase between 1975 and 1985. The Fifteenth Circuit ranks second in the State in the combined factors of filings, attorneys and population per judge. These factors confirm the continued need for an additional circuit judgeship.

Sixteenth Judicial Circuit (Monroe County). The Sixteenth Circuit has three circuit judgeships, and the need for one additional circuit judgeship is certified. The Sixteenth Circuit made no request last year, hence, this need was not earlier identified by the Court. While the filing per judge ratio is low in the Sixteenth Circuit, a number of other factors must be considered in this determination of need. The Sixteenth Circuit currently has the fewest number of circuit judgeships in the State. No additional circuit judgeship has been authorized since 1975. While population growth has been small, the nature of the population existing in the Sixteenth Circuit, as well as the considerable amount of travel time required for the three current judges, are the primary factors considered in this determination of need. The circuit judges regularly are required to travel between Key West and Marathon, a distance of 48 miles, and Key West and Plantation Key, a distance of 88 miles, using a two-lane highway which makes such travel very difficult and time-consuming. The additional judgeship would allow one judge to sit in the Middle or Upper Keys and handle the growing caseload originating from those areas and, thus, lessen the amount of travel which must be done by the other circuit judges. Furthermore, the placement of a judge in the Middle or Upper Keys will greatly expand the access of litigants in that area to the court, especially in connection with hearing emergency matters.

Seventeenth Judicial Circuit (Broward County). The Seventeenth Circuit currently has 39 circuit judgeships and 15 county court judgeships. The need for two additional circuit judgeships, and two additional county court judgeships is certified. The need for two circuit judgeships in the second year of the biennium was previously certified. We certified last year the need for two county court judgeships for Fiscal Year 1981-82, but none were authorized. While the Seventeenth Circuit did receive three circuit judgeships last year, one more than was certified, this Court feels that a 31% increase in circuit court filings between 1979 and 1981, the very high rate of growth in the population, as well as the nature of that population, and the extensive use of retired judges indicate the continued need for additional circuit judgeships in the Seventeenth Circuit. Broward County ranks highest in the State in county court filings per judge ratio, and this Court concludes that the previously certified need for additional county court judges continues to exist.

Twentieth Judicial Circuit (Collier, Hen-dry, Glades, Charlotte, and Lee Counties). The Twentieth Circuit currently has nine circuit judgeships, and the need for one additional circuit judgeship is certified. This need was recognized in our previous certification decision, and based upon the continued high ratio of filings per judge, and the 68.9% projected population increase between 1975 and 1985, as well as the fact that three of the nine county court judges in the Twentieth Circuit are non-lawyers, the continued need for this additional judgeship is confirmed.

CERTIFICATION

Therefore, in accordance with Article V, Section 9, Florida Constitution, we certify the need for the additional District, Circuit and County Court judgeships indicated above. This Court certifies that these judicial officers are necessary and we recommend that they be made permanent by law and funded by the State.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    In re AMENDMENT ONE TO CERTIFICATE FILED DECEMBER 23, 1981. In re CERTIFICATE OF JUDICIAL MANPOWER FOR DISTRICT COURTS OF APPEAL, CIRCUIT COURTS AND COUNTY COURTS, AS REQUIRED BY ARTICLE V, SECTION 9, FLORIDA CONSTITUTION.
    No. 61524.
    Supreme Court of Florida.
    Feb. 12, 1982.
   PER CURIAM.

On December 23,1981, this Court published its Certificate of Judicial Manpower setting forth recommendations on the number of additional judges needed during Fiscal Year 1982-1983. Subsequent to that date additional information was received from the Eleventh Judicial Circuit regarding an asserted need for 2 additional judgeships in that Circuit. In response to that request, the Chief Justice and State Courts Administrator visited the Eleventh Judicial Circuit on January 29 and 30 for the purpose of evaluating the needs of that Circuit, and heard from judges and other leading members of the community about those needs. Based upon that request and the information received this Court hereby revises and amends its Certification dated December 23, 1981 to additionally recommend that the Legislature make available to the Eleventh Judicial Circuit two additional Circuit Court judgeships for Fiscal Year 1982-1983, with sufficient resources specifically for this purpose.

The Court is aware of the dramatic increase in criminal filings which has occurred in the Eleventh Circuit since 1979, and the administrative actions which the Chief Judge has taken to partially deal with this increased caseload. In addition, projections for 1982 and 1983 indicate a continued significant increase in criminal case filings, with a major portion of such filings continuing to consist of major crimes requiring considerable judicial time and involvement. Increased law enforcement and prosecutorial resources committed by state and local governments in the past year will continue to affect judicial caseloads in Fiscal Year 1982-1983. A very high number of civil jury trials precludes the further administrative transfer of judges from the civil to criminal divisions. Furthermore, the transient nature and unpredictable growth patterns of population in the Eleventh Judicial Circuit creates unique problems for the criminal justice system in Dade County.

While recently authorized judgeships, approved by the Legislature in 1981, and administrative actions taken by the Chief Judge will greatly enhance this Circuit’s ability to deal with the extraordinary circumstances which now exist, this Court finds that two additional Circuit judgeships are required during Fiscal Year 1982-1983 to deal with the developing caseloads now being foreseen by judges, prosecutors, and defense attorneys, as well as community leaders, and confirmed in statistical projections by the State Courts Administrator. Finally, we also note that additional resources for the State Attorney and Public Defender in the Eleventh Judicial Circuit must be made available in order for these two additional judgeships to be of full benefit in dealing with criminal caseloads, and we are confident that the Legislature will remain cognizant of these associated needs of the criminal justice system, as they have been in the past.

This Court would like to take particular note of the active involvement in this process and meaningful contribution which has been made by leading members of the community who are dedicated to solving problems and reducing the crime rate now existing in the Eleventh Judicial Circuit. We are informed that a substantial increase of 1200 law enforcement officers over the next two years is being sought, and that there is a broad-based recognition of the need for additional resources for the State Attorney and Public Defender. Due to the interrelationship of all elements in the Criminal Justice System, the ripple effect of these additional commitments to other segments of the criminal justice community will impact on the number of judges necessary in the Eleventh Circuit. While our Certification cannot be based upon eventualities beyond our control, but rather must be based upon historical data and the facts as they now appear, immediate commitment of substantial additional resources in other areas of the criminal justice system could certainly override this Certification and require legislative approval of a greater number of additional judgeships for the Eleventh Circuit.

CERTIFICATION

Therefore, in accordance with Article Y, Section 9, Florida Constitution and in addition to this Court’s prior Certification dated December 23, 1981, we amend that prior Certification by adding two new circuit judgeships for the Eleventh Judicial Circuit. We certify that these judicial officers are necessary and we recommend that they be made permanent by law and funded by the State.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


author: OVERTON, Justice.

text:
    Terrence E. ROSENBERG and Gerald Pomerantz, Petitioners, v. George G. LEVIN, Respondent.
    No. 57530.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Rehearing Denied March 4, 1982.

      Kris E. Penzell of the Law Offices of Penzell & Diamond, Miami, Proby & Adkins, Coral Gables, and Barry J. Clyman, Miami, for petitioners.
    Irwin J. Weiner, Ocala, for respondent.
   ON REHEARING AND REARGUMENT

The opinion of June 11, 1981, is vacated and replaced by the following opinion.

OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal, reported as Levin v. Rosenberg, 372 So.2d 956 (Fla. 3d DCA 1979). The issue to be decided concerns the proper basis for compensating an attorney discharged without cause by his client after he has performed substantial legal services under a valid contract of employment. We find conflict with our decision in Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538 (1938).

We hold that a lawyer discharged without cause is entitled to the reasonable value of his services on the basis of quantum meruit, but recovery is limited to the maximum fee set in the contract entered into for those services. We have concluded that without this limitation, the client would be penalized for the discharge and the lawyer would receive more than he bargained for in his initial contract. In the instant case, we reject the contention of the respondent lawyer that he is entitled to $55,000 as the reasonable value of his services when his contract fee was $10,000. We affirm the decision of the district court and recede from our prior decision in Goodkind.

The facts of this case reflect the following. Levin hired Rosenberg and Pomerantz to perform legal services pursuant to a letter agreement which provided for a $10,000 fixed fee, plus a contingent fee equal to fifty percent of all amounts recovered in excess of $600,000. Levin later discharged Rosenberg and Pomerantz without cause before the legal controversy was resolved and subsequently settled the matter for a net recovery of $500,000. Rosenberg and Pomerantz sued for fees based on a “quantum meruit” evaluation of their services. After lengthy testimony, the trial judge concluded that quantum meruit was indeed the appropriate basis for compensation and awarded Rosenberg and Pomerantz $55,000. The district court also agreed that quantum meruit was the appropriate basis for recovery but lowered the amount awarded to $10,000, stating that recovery could in no event exceed the amount which the attorneys would have received under their contract if not prematurely discharged. 372 So.2d at 958.

The issue submitted to us for resolution is whether the terms of an attorney employment contract limit the attorney’s quantum meruit recovery to the fee set out in the contract. This issue requires, however, that we answer the broader underlying question of whether in Florida quantum meruit is an appropriate basis for compensation of attorneys discharged by their clients without cause where there is a specific employment contract. The Florida cases which have previously addressed this issue have resulted in confusion and conflicting views.

In Goodkind v. Wolkowsky, this Court held that an attorney who was employed for a specific purpose and for a definite fee, but who was discharged without cause after substantial performance, was entitled to recover the fee agreed upon as damages for breach of contract. The attorney in Good-kind was employed to represent several clients in a tax case for a fixed fee of $4,000 and was discharged without cause prior to his completion of the matter. He sought damages for breach of contract. The trial court sustained clients’ demurrer to the complaint “on the ground that plaintiff’s right to recover must be restricted to a reasonable compensation for the value of the services performed prior to the discharge.” 180 So. at 540. The attorney appealed and this Court, after an extensive survey of the authorities, reversed the attorney’s quantum meruit recovery and found instead that he was entitled to recover under the contract. The Goodkind court, while following the traditional contract rule, did recognize the right of the client to discharge his attorney at any time with or without cause. The Third District Court of Appeal later applied this contract rule to a contingent fee contract situation in Osius v. Hastings, 97 So.2d 623 (Fla. 3d DCA 1957), rev’d on other grounds, 104 So.2d 21 (Fla.1958).

In Milton Kelner, P.A. v. 610 Lincoln Road, Inc., 328 So.2d 193 (Fla.1976), we approved the enforcement of a specific attorney-client contract, but left open the issue of whether quantum meruit was the proper rule in a contingency fee case. The attorney in Kelner represented a client on an insurance claim under a contingency fee contract calling for “40% of all sums recovered.” The insurer agreed to pay the face amount of the policy before trial, but the client rejected the settlement offer and discharged the attorney without cause. In effect, the maximum recovery from the insurance company had been obtained at the time of the discharge. The attorney then sought recovery under the contract in the trial court and was successful; with the jury resolving the dispute relating to fee calculation in favor of the attorney. On appeal, the district court reversed and limited the attorney’s recovery to quantum meruit rather than the percentage of the insurance proceeds recovery provided by the contingency contract. The district court emphasized that recovery under the original contract might have a chilling effect on a client’s exercise of the right to discharge. The district court then certified to this Court the question it had decided, whether quantum meruit should be the exclusive remedy in contingent fee cases. We chose to decide the Kelner case on its unique facts and held:

Under the peculiar circumstances of this case, where the proceeds of the insurance policy were fully recovered and the real issue of how the contingency fee was to be computed was settled by a jury, we will not disturb the verdict and restrict the computation of the attorney’s fee to quantum meruit. We do agree with the District Court that Goodkind v. Wolkowsky applies to a fixed fee contract and does not establish the precedent for contingent fee contracts.

We continued by stating:

Quantum meruit may well be the proper standard when the discharge under a contingent fee contract occurs prior to the obtaining of the full settlement contracted for under the attorney-client agreement, with the cause of action accruing only upon the happening of the contingency to the benefit of the former client. That issue, however, is not factually before us and we do not make that determination in this cause.

328 So.2d at 196 (citation omitted).

The First District Court of Appeal, in Sohn v. Brockington, 371 So.2d 1089 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980), subsequently determined that, based on the above-quoted language in Kel-ner, quantum meruit was the appropriate remedy when discharge occurred before the happening of the contingency. In Sohn, the attorney was employed under a forty percent contingent fee contract and was discharged without cause before filing the complaint. The client subsequently retained new counsel who secured a settlement of $75,000. The district court affirmed the trial court which had limited the attorney to a quantum meruit recovery and awarded him $950 as the reasonable value of his services. In so holding, the district court concluded that “the [modern] rule ... is the more logical and should be adopted in this state.” 371 So.2d at 1092. That court also held that the attorney’s cause of action accrued immediately upon discharge in accordance with the view expressed in Martin v. Camp, 219 N.Y. 170, 177, 114 N.E. 46, 49 (1916).

The existing case law in this state reflects that this Court is on record as favoring the traditional contract means of recovery. We have, however, inferred in dicta in Kelner that quantum meruit may be the proper basis for recovery in a contingent fee contract situation. The First District Court of Appeal in Sohn expressly held that quantum meruit is proper in a contingency contract. In the instant case, the Third District Court of Appeal held that quantum meruit is proper where the contingency does not control and limited such quantum meruit recovery to the maximum amount of the contract fee.

There are two conflicting interests involved in the determination of the issue presented in this type of attorney-client dispute. The first is the need of the client to have confidence in the integrity and ability of his attorney and, therefore, the need for the client to have the ability to discharge his attorney when he loses that necessary confidence in the attorney. The second is the attorney’s right to adequate compensation for work performed. To address these conflicting interests, we must consider three distinct rules.

Contract Rule

The traditional contract rule adopted by a number of jurisdictions holds that an attorney discharged without cause may recover damages for breach of contract under traditional contract principles. .The measure of damages is usually the full contract price, although some courts deduct a fair allowance for services and expenses not expended by the discharged attorney in performing the balance of the contract. E.g., Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991 (1948) (fixed fee contract); Tonn v. Reuter, 6 Wis.2d 498, 95 N.W.2d 261 (1959) (contingency fee contract); see generally 1 S. Speiser, Attorneys’ Fees §§ 4:24-:36 (1973). Some jurisdictions following the contract rule also permit an alternative recovery based on quantum meruit so that an attorney can elect between recovery based on the contract or the reasonable value of the performed services. E.g., In re Downs, 363 S.W.2d 679 (Mo.1963); French v. Cunningham, 149 Ind. 632, 49 N.E. 797 (1898). See 1 S. Speiser, Attorneys’ Fees § 4:36 (1973).

Support for the traditional contract theory is based on: (1) the full contract price is arguably the most rational measure of damages since it reflects the value that the parties placed on the services; (2) charging the full fee prevents the client from profiting from his own breach of contract; and (3) the contract rule is said to avoid the difficult problem of setting a value on an attorney’s partially completed legal work.

Quantum Meruit Rule

To avoid restricting a client’s freedom to discharge his attorney, a number of jurisdictions in recent years have held that an attorney discharged without cause can recover only the reasonable value services rendered prior to discharge. See, e.g., Covington v. Rhodes, 38 N.C.App. 61, 247 S.E.2d 305 (1978), cert. denied, 296 N.C. 410, 251 S.E.2d 468 (1979); Johnson v. Long, 15 Ill.App.3d 506, 305 N.E.2d 30 (1973); State Farm Mutual Insurance Co. v. St. Joseph's Hospital, 107 Ariz. 498, 489 P.2d 837 (1971). See generally 1 S. Speiser, §§ 4:28, :35-:36. This rule was first announced in Martin v. Camp, 219 N.Y. 170, 114 N.E. 46 (1916), where the New York Court of Appeals held that a discharged attorney could not sue his client for damages for breach of contract unless the attorney had completed performance of the contract. The New York court established quantum meruit recovery for the attorney on the theory that the client does not breach the contract by discharging the attorney. Rather, the court reasoned, there is an implied condition in every attorney-client contract that the client may discharge the attorney at any time with or without cause. With this right as part of the contract, traditional contract principles are applied to allow quantum meruit recovery on the basis of services performed to date. Under the New York rule, the attorney’s cause of action accrues immediately upon his discharge by the client, under the reasoning that it is unfair to make the attorney’s right to compensation dependent on the performance of a successor over whom he has no control. See Tillman v. Komar, 259 N.Y. 133, 135-36, 181 N.E. 75, 76 (1932).

The California Supreme Court, in Fracasse v. Brent, 6 Cal.3d 784, 494 P.2d 9, 100 Cal.Rptr. 385 (1972), also adopted a quantum meruit rule. That court carefully analyzed those factors which distinguish the attorney-client relationship from other employment situations and concluded that a discharged attorney should be limited to a quantum meruit recovery in order to strike a proper balance between the client’s right to discharge his attorney without undue restriction and the attorney’s right to fair compensation for work performed. The Fracasse court sought both to provide clients greater freedom in substituting counsel and to promote confidence in the legal profession while protecting society’s interest in the attorney-client relationship.

Contrary to the New York rule, however, the California court also held that an attorney’s cause of action for quantum meruit does not accrue until the happening of the contingency, that is, the client’s recovery. If no recovery is forthcoming, the attorney is denied compensation. The California court offered two reasons in support of its position. First, the result obtained and the amount involved, two important factors in determining the reasonableness of a fee, cannot be ascertained until the occurrence of the contingency. Second, the client may be of limited means and it would be unduly burdensome to force him to pay a fee if there was no recovery. The court stated that: “[S]ince the attorney agreed initially to take his chances on recovering any fee whatever, we believe that the fact that the success of the litigation is no longer under his control is insufficient to justify imposing a new and more onerous burden on the client.” Id. at 792, 494 P.2d at 14, 100 Cal.Rptr. at 390.

Quantum Meruit Rule Limited By The Contract Price

The third rule is an extension of the second that limits quantum meruit recovery to the maximum fee set in the contract. This limitation is believed necessary to provide client freedom to substitute attorneys without economic penalty. Without such a limitation, a client’s right to discharge an attorney may be illusory and the client may in effect be penalized for exercising a right.

The Tennessee Court of Appeals, in Chambliss, Bahner & Crawford v. Luther, 531 S.W.2d 108 (Tenn.Ct.App.1975), expressed the need for limitation on quantum meruit recovery, stating: “It would seem to us that the better rule is that because a client has the unqualified right to discharge his attorney, fees in such cases should be limited to the value of the services rendered or the contract price, whichever is less.” 531 S.W.2d at 113. In rejecting the argument that quantum meruit should be the basis for the recovery even though it exceeds the contract fee, that court sáid:

To adopt the rule advanced by Plaintiff would, in our view, encourage attorneys less keenly aware of their professional responsibilities than Attorney Chambliss, ... to induce clients to lose confidence in them in cases where the reasonable value of their services has exceeded the original fee and thereby, upon being discharged, reap a greater benefit than that for which they had bargained.

531 S.W.2d at 113. Other authorities also support this position.

Conclusion

We have carefully considered all the matters presented, both on the original argument on the merits and on rehearing. It is our opinion that it is. in the best interest of clients and the legal profession as a whole that we adopt the modified quantum meruit rule which limits recovery to the maximum amount of the contract fee in all premature discharge cases involving both fixed and contingency employment contracts. The attorney-client relationship is one of special trust and confidence. The client must rely entirely on the good faith efforts of the attorney in representing his interests. This reliance requires that the client have complete confidence in the integrity and ability of the attorney and that absolute fairness and candor characterize all dealings between them. These considerations dictate that clients be given greater freedom to change legal representatives than might be tolerated in other employment relationships. We approve the philosophy that there is an overriding need to allow clients freedom to substitute attorneys without economic penalty as a means of accomplishing the broad objective of fostering public confidence in the legal profession. Failure to limit quantum meruit recovery defeats the policy against penalizing the client for exercising his right to discharge. However, attorneys should not be penalized either and should have the opportunity to recover for services performed.

Accordingly, we hold that an attorney employed under a valid contract who is discharged without cause before the contingency has occurred or before the client’s matters have concluded can recover only the reasonable value of his services rendered prior to discharge, limited by the maximum contract fee. We reject both the traditional contract rule and the quantum meruit rule that allow recovery in excess of the maximum contract price because both have a chilling effect on the client’s power to discharge an attorney. Under the contract rule in a contingent fee situation, both the discharged attorney and the second attorney may receive a substantial percentage of the client’s final recovery. Under the unlimited quantum meruit rule, it is possible, as the instant case illustrates, for the attorney to receive a fee greater than he bargained for under the terms of his contract. Both these results are unacceptable to us.

We further follow the California view that in contingency fee cases, the cause of action for quantum meruit arises only upon the successful occurrence of the contingency. If the client fails in his recovery, the discharged attorney will similarly fail and recover nothing. We recognize that deferring the commencement of a cause of action until the occurrence of the contingency is a view not uniformly accepted. Deferral, however, supports our goal to preserve the client’s freedom to discharge, and any resulting harm to the attorney is minimal because the attorney would not have benefited earlier until the contingency’s occurrence. There should, of course, be a presumption of regularity and competence in the performance of the services by a successor attorney.

In computing the reasonable value of the discharged attorney’s services, the trial court can consider the totality of the circumstances surrounding the professional relationship between the attorney and client. Factors such as time, the recovery sought, the skill demanded, the results obtained, and the attorney-client contract itself will necessarily be relevant considerations.

We conclude that this approach creates the best balance between the desirable right of the client to discharge his attorney and the right of an attorney to reasonable compensation for his services. With this decision, we necessarily recede from our prior decision in Goodkind v. Wolkowsky. This decision has no effect on our Kelner decision concerning completed contracts, whether contingent, fixed fee, or mixed. We find the district court of appeal was correct in limiting the quantum meruit award to the contract price, and its decision is approved.

It is so ordered.

SUNDBERG, C. J., and BOYD and ALDERMAN, JJ., concur.

ADKINS and McDONALD, JJ., dissent.

       For example, Corbin on Contracts, in the chapter dealing with restitution, cites the quantum meruit rule with this limitation with approval. Contracts § 1102 (1980 Supp.) at 207-08. Another commentator stated: “The protection afforded to the client becomes illusory if the discharged attorney’s recovery on quantum meruit exceeds the contract price.” Note, Limiting the Wrongfully Discharged Attorney’s Recovery to Quantum Meruit — Fracasse v. Brent, 24 Hastings L.Rev. 771, 774 (1973). This comment also appeared in a recent article: “In New York, discharge of an attorney cancels the contract of employment. Thus an attorney can recover the full value of his services, even if it exceeds the contract price. This holding defeats the policy against penalizing the client for exercising his right to discharge an attorney, because he essentially is forced to pay damages for exercising a right.” Note, Attorney’s Right to Compensation When Discharged Without Cause From a Contingent Fee Contract — Covington v. Rhodes, 678 Wake Forest L.Rev. 677, 689-90 (1979).


text:
    THE FLORIDA BAR, Complainant, v. Charles F. ATWOOD, III, Respondent.
    No. 59445.
    Supreme Court of Florida.
    Jan. 21, 1982.
    John A. Boggs, Asst. Staff Counsel, Tallahassee, Paul A. Gross, Branch Staff Counsel and Neil M. Nameroff, Bar Counsel, Miami, and William J. Goldworn, Chairman, Grievance Committee “A” Eleventh Judicial Circuit, Coral Gables, of The Florida Bar, for complainant.
    Gary N. Holthus, Miami, for respondent.
   PER CURIAM.

This petition of The Florida Bar charged Florida Bar member Charles F. Atwood, III, with engaging in conduct involving moral turpitude prejudicial to the administration of justice and reflecting adversely upon his fitness to practice law. The referee found that attorney Atwood admitted notarizing a quitclaim deed despite the fact that one of the signatories, Beverly M. Morse, did not affix her signature to the deed in respondent’s presence. Atwood denied any intent to defraud Mrs. Morse, and, at the hearing before the referee, Mrs. Morse’s husband admitted perpetrating the fraud. Also at the hearing respondent offered to pay Mrs. Morse $3,000 for claimed damages.

For respondent’s conduct, the referee recommended that respondent be found guilty of violating Code of Professional Responsibility DR 1-102(A)(3) to -102(A)(6), and his oath as an attorney. The referee recommended that respondent be publicly reprimanded and that he make restitution to Mrs. Morse as agreed.

Respondent having filed no petition for review, we approve the referee’s findings. Publication of this order in the Southern Reporter shall serve as respondent’s public reprimand and, respondent is further directed, within ninety days of the Court’s order, to make Mrs. Morse whole by the payment of $3,000. In the event payment is not made, this Court will consider respondent’s suspension from the practice of law in accordance with the referee’s recommendation. Execution shall issue against respondent for the cost of these proceedings, $734.75.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.