text:
    James Edward JORDAN v. STATE.
    8 Div. 291.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.

      Joseph T. Conwell, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Edward Jordan was indicted by the grand jury for the offense of burglary in the second degree. The jury returned a verdict of “guilty as charged,” and the trial court set sentence at ten years imprisonment in the penitentiary. This appeal followed.

On November 27, 1978, Mrs. Hattie Holden left her home in Madison County with her two children. She testified that before leaving the house she checked the windows and doors to make sure they were secure. When she returned home that evening, she discovered that a bowl which was used to hold change had been emptied of its contents, i. e., approximately fifteen dollars. She also found that a stick which had been placed in a sliding glass door to prevent its opening had been removed. Furthermore, the window of a bedroom in the back of the house showed signs of having been pried open. She immediately called her husband who in turn called the police.

On May 11, 1979, Mrs. Holden talked to the appellant (who lives within a half block of Mrs. Holden) about this burglary. According to Mrs. Holden the appellant admitted that he had gone into her house and had taken the money from the bowl. He said he had entered through a back window and had left through the sliding glass door. Mrs. Holden denied having ever offered to drop all charges against the appellant if he admitted breaking into her house on this occasion.

Detective Eugene Marsh of the Madison Police Department testified that he questioned the appellant on May 15, 1979, about the burglary of Mrs. Holden’s home. He first spoke with appellant at appellant’s home, but then asked him to come to the police station. On the way to the station, Detective Marsh advised the appellant of his constitutional rights from a Miranda card as follows (R. p. 54):

“A. You have the right to remain silent. If you choose to talk you may stop talking at any' time. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer of your own choosing or with anyone else and you may have your counsel present during any questioning or any statement that you may make. If you cannot afford an attorney one will be appointed for you free of charge before any questioning.”

Appellant indicated that he understood these rights and that he wished to make a statement.

Upon arrival at the police station, Detective Marsh again advised appellant of his Miranda rights. Detective Marsh asked appellant if he understood that he was not being threatened, coerced, induced, or promised anything in order to secure a statement from him. Appellant indicated that he did so understand and that he wished to make a statement. Thereafter, appellant signed a written statement in which he admitted committing the burglary of the Holden residence.

Appellant testified on voir dire in pertinent part as follows (R. pp. 47, 48, 49):

“A. All right, now, after he took me down there and asked me all those questions and I told him the same thing that she told me and he said that he would get in touch with her and find out if she wanted to press charges or not and after I signed this statement saying that I did all of that, she changed her mind and pressed charges.
“Q. You mean she did?
“A. Right.
“Q. And you say you understood that Hattie Holden wasn’t going to press the charge?
“A. She sure said it.
“Q. And you say that Detective Marsh told you that if you would sign this—
“A. Sign that statement that he wouldn’t press the charges — that I would be charged with just one of those and not all of those, just one of them.
“VOIR DIRE EXAMINATION
“EXAMINATION BY MR. RODEN-HAUSER
“Q. Are you saying that Detective Marsh told you that if you made a statement that he would try to get the charges dropped, is that what you are saying?
“A. All he did say was that if it got to it that it would just be one of these, he would just make one big thing out of it.
“Q. Did he also tell you that he could not make you any promises?
“A. Right.
“MR. RODENHAUSER: That’s all.”

State’s Exhibit Two was admitted into evidence and the State rested.

Appellant’s mother and father both testified that appellant did not leave home on the night in question. They further testified that when Mrs. Holden accused the appellant of the burglary he denied committing the crime.

Appellant’s brother testified that he recalled that Mrs. Holden only accused the appellant of stealing gasoline and not of stealing money.

A. D. Matthews testified that on the night in question he saw someone other than the appellant climb out of Mrs. Holden’s window.

In rebuttal, Detective Marsh testified, over objection, regarding another inculpato-ry statement made by appellant prior to making the statement contained in State’s Exhibit Two. According to Marsh, appellant was fully apprised of his constitutional rights and was neither threatened, coerced, induced, or promised leniency prior to making the statement. In this statement (State’s Exhibit One) appellant admitted having broken into the Holdens’ residence on three separate occasions and having stolen several items. He also admitted having stolen gasoline from the Holdens’ car and having broken into another house on the same street as the Holdens’ house.

The appellant testified in his own behalf that Mrs. Holden told him that if he admitted the burglaries in question she would drop the charges. He denied ever having broken into Mrs. Holden’s house. The appellant indicated that he did not fully understand the import of his signing the statements.

I

Appellant first argues on appeal that the State failed to sufficiently set out the elements of burglary in the second degree because “the breaking and entering proof was based on purely circumstantial evidence.” (Brief of Appellant, p. 13)

Burglary in the second degree includes the following elements: (1) breaking and (2) entering an uninhabited dwelling house (3) with intent to steal or commit a felony. § 13 — 2—41, Code of Alabama 1975; Mains v. State, 375 So.2d 1299 (1979).

In the present case, Mrs. Holden testified that her bedroom window showed signs of having been opened, that money was missing, and that a sliding door had been tampered with. This testimony properly established the corpus delicti of the offense. Reynolds v. State, Ala.Cr.App., 346 So.2d 979 (1977); Young v. State, 51 Ala.App. 400, 286 So.2d 76 (1973). Moreover, this testimony was sufficient independent proof of the corpus delicti of the offense to justify admission of appellant’s confession thereto. Snead v. State, 251 Ala. 624, 38 So.2d 576 (1949).

Thus, based on the authorities herein-above cited, we hold that the trial court properly submitted this cause to the jury.

II

Appellant next contends that the trial court erred in overruling his motion to suppress his inculpatory statements because “he was an uneducated black man of 20 years,” and the statements were not made voluntarily.

The uncontradicted testimony of Detective Marsh is that he fully advised appellant of his constitutional rights, both en route to the police station and again after arrival.

Appellant acknowledged he understood these rights as read to him and that he understood that he was neither threatened, coerced, induced, or promised anything in order to persuade him to make a statement. Appellant also testified that he could read and write and had gone as far as the eleventh grade in high school where he made average grades.

The evidence .is conflicting, however, on whether Mrs. Holden induced appellant into admitting the burglary by promising to drop the charges.

Where conflicting evidence is presented regarding the voluntariness of a confession, great weight must be given to the judgment of the trial court. McNair v. State, 50 Ala.App. 465, 280 So.2d 171 (1973).

We hold the trial court’s determination that appellant’s confessions were made knowingly, voluntarily, understandingly, and intelligently was correct. Twymon v. State, Ala.Cr.App., 358 So.2d 1072 (1978); Batteaste v. State, Ala.Cr.App., 331 So.2d 832 (1976); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967).

Ill

Lastly, appellant maintains that the trial court erred in admitting State’s Exhibit One because it includes an admission that appellant committed another crime which itself is not provable in the present prosecution.

As a general rule, parts of a confession which include admissions of offenses separate from those relating to the crime in issue are not admissible. Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958); Gamble, McElroy’s Alabama Evidence, § 200.15 (3d Ed. 1977).

“Of course, if the accused’s commission of the other crime is relevant for some purpose other than as tending to prove the accused’s bad character, his assertion of his commission of the other crime is admissible.” (Footnotes omitted) Gamble, supra.

In the present case, the appellant’s admission of the prior break-ins was relevant to prove his intent to steal or commit a felony simultaneously with the break-in charged in the indictment. Reeves v. State, 95 Ala. 31, 11 So. 158 (1892); Gamble, supra, at § 69.01(5).

Thus, the trial court correctly admitted State’s Exhibit One into evidence.

There being no error shown by this record, this cause is due to be and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte James Edward JORDAN. In re James Edward Jordan v. STATE.
    79-337.
    Supreme Court of Alabama.
    Feb. 29, 1980.
   SHORES, Justice.

WRIT DENIED.

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


author: BOWEN W. SIMMONS, Retired Circuit Judge. BOWEN W. SIMMONS, Retired Circuit Judge.

text:
    Gregory A. COOPER, alias v. STATE.
    4 Div. 765.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Cary L. Dozier, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted, tried before a jury, convicted, and sentenced to five years imprisonment for burglarizing a drugstore in Brundidge, Alabama, the property of Ronald Don Price.

The alleged burglary occurred about 2 a. m., April 28, 1979, at which time a cold drink vending machine in the store was broken into and a quantity of coins was taken; also some pills in bottles were taken and maybe some other items.

I

Appellant asserts that the defendant’s arrest was unlawful because the officers who stopped him and made the arrest acted without probable cause. We note that on cross-examination defense counsel asked Officer Fernald if he was telling the court that the arrest was based on mere suspicion. From the record:

“A No, sir, it was based on my probable cause.”

Our review of the evidence supports our statute, infra. We will now allude to some of the evidence which we think is pertinent to the issue of reasonable cause required by our statute.

Officer Charles Harris, on duty as a police officer for the city of Brundidge, a small urban area in Pike County, testified that the first time he drove by the burglarized drugstore, the lights were on as usual, but on the second patrol by the store he noticed that the inside lights were off. The lights were usually on. The second patrol was around 2 a. m., on April 28, 1979. Jixst before he observed the lights were off, he saw “the car leaving.” He did not recognize anybody in the car. The departing car was a green Pontiac with paint msyrks on the back of it. There was a C.B. antenna in the middle of the trunk. He already had the tag number.

The car was going north on Main Street “through the red light.” He followed the Pontiac to North Main Street where he (the officer) turned around and went back to the drugstore “and the lights were out.” He then called his partner, Officer Lott, with whom he checked the lights. Officer Harris found the front door unlocked. Prior to this the witness had already called the dispatcher and given him a description of the car. He sent in the description when he saw the car leaving the drugstore. He was suspicious then. Officer Harris went to Troy and identified the car as the one he saw in Brundidge.

On cross-examination, Officer Harris testified that when he first saw the Pontiac he was “on patrol of D (doors) and A (alleys).” He saw the car as it was leaving the drugstore. When he saw the Pontiac (in motion) leaving the drugstore it was on the wrong side of the street. The car, on leaving, was traveling at a high rate of speed which aroused “my suspicion.” He testified that he wanted “to make sure whether the drugstore had been entered, because we got a call from Clayton that he was over around Clayton spooking around drugstores.” At the time he saw the car leaving the officer did not know the drugstore had been entered. The officer only followed the Pontiac to the traffic light and turned around. He noticed when he returned that the Price Drugstore lights were out on the front. When the officer went to the back he noticed that the outside switch on the meter was pulled. When the witness saw the Pontiac, he was aware that it was the car that the Police in Clayton were talking about. He could not describe the driver of the Pontiac other than that he was a white male.

“Q Now, taking what you knew at that time to look out for this car, the car pulling away from the vicinity of the front of Price’s Drug Store leaving at an excessive rate of speed did you become suspicious?
“A Right.
“Q When you went back from the stop light what was the purpose of you returning to Price’s Drug Store?
“A To see whether the drug store had been entered.
“Q So you were going to confirm—
“A Right.
“Q Whether anything had happened?
“A Right.
“Q Would that be investigative procedure?
“A Right.”

The witness testified that as soon as the defendant left the city of Brundidge, he gave the information to the dispatcher in Brundidge who alerted Troy, in which direction the Pontiac was headed.

“Q As soon as the defendant left the City of Brundidge did you alert the police department in Troy, Alabama?
“A No, the dispatcher did. After I gave it to the dispatcher in Brundidge they alerted Troy.
“Q On this alert what did you tell the dispatcher in Brundidge to relay to the City of Troy?
“A Well, I dispatched that there was a green Pontiac leaving the scene of the drug store with the paint marks in the back with the CB antenna in the middle of the trunk leaving at a high rate of speed going north on North Main Street.”
***** *
“Q Did you ever subsequently report that the drugstore had been broken into to the dispatcher?
“A Yes, I did. After I turned around and went back and I called in he transferred all of it to Troy then.
“Q Did he transfer that information to Troy?
“A Right.”

Tony Stephens, the radio dispatcher for the police department in Troy, Alabama, testified that he was on duty in the early morning hours of April 28, 1979, and received a call from Brundidge concerning a vehicle and a breaking and entering of a drug store in- Brundidge; that subsequent to receiving the dispatch from Brundidge he issued a dispatch to the patrol cars in Troy.

“Q Exactly what did you tell the patrol cars in Troy as a result of this message from Brundidge?
“A I advised them to watch for a green Pontiac with a CB antenna on the trunk and primer on the vehicle possibly coming north on U.S. 281. This vehicle was possibly involved in a breaking and entering of a drug store in Brundidge.
“Q Now, you did say that this was possibly involved in a breaking and entry of a drug store in Brundidge?
“A Yes, sir.
“Q Was a car stopped matching that description that you received a message on?
“A Yes, sir.
“Q Was this subsequent to you dispatching this information to the Troy Police cars?
“A Yes, sir, it was.
“Q Do you remember what officers called back?
“A Officer Pernall (sic) was the first one to stop the vehicle, he had got behind it and officers then backed him up after he had advised he had the car stopped.
“Q After you received that message from Officer Pernall (sic) did you call back to Brundidge?
“A Yes, sir, I called back to confirm they did have a B and E.”

The witness stated, on cross-examination, that he had been listening to Brundidge and heard that they “had a possible B and E (breaking and entering) and I advised my units to watch for that car on all roads coming in possibly from Brundidge.” He had already placed the Troy units on alert. The defendant had not been “pulled over” by Troy Officers before this alert went out. Officer Fernald stopped defendant. This officer was then aware that a window had been broken at the drug store in Brundidge.

“Q How many police cars were there?
“A One car stopped him.
“Q Who was that?
“A Officer Fernald. Then right after that back up units arrived.
“Q But isn’t it true Tony at the time Fernald stopped him he was not aware that a burglary had taken place in Brun-didge, Alabama.
“A We were aware that a window had been broken at the drug store in Brun-didge as I understand it.
“Q Fernald was?
“A Yes, sir, I had advised them there was a possible B and E at Brundidge.”

The state called Bruce Allen Fernald as a witness. Mr. Fernald was a police officer on duty April 28, 1979, in Troy. The witness testified that he was dispatched to “get on 231 By Pass and possibly head south to look for approximately a 1972, 1973, green Pontiac, that there had been a burglary involved in Brundidge and this vehicle was seen leaving the premises.”

“Q Was there any further description on the Pontiac?
“A Yes, sir. He described that it was going to be they believed a Bonneville, that it was going to have a CB antenna on the back trunk and that it would have some primer spots on it.”

The witness testified that upon seeing the described car he stopped it. It met the description. Mr. Cooper, the defendant, was driving the vehicle.

It appears from the evidence of this witness that before stopping the vehicle he was informed of its use in committing a burglary in Brundidge. This information was communicated by the Troy police dispatcher.

Section 15-10-3, Code of Alabama 1975, provides that an officer may arrest any person without a warrant on any day and at any time, for:

“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or

We hold that the police officers, as shown by the record, had reasonable cause to believe that the defendant, the driver of the stopped vehicle, had committed the Brundidge burglary.

The record shows that earlier in the same night, the same vehicle was being operated in Clayton, Alabama, under such conditions as to create a suspicion that the operator was up to some unknown mischief. The record also shows that in Brundidge, at a later hour, the suspicious operation ripened into a reasonable cause to believe the operator had committed the alleged burglary of Price’s Drugstore.

There is evidence, some of which we have noted, supra, of underlying circumstances which give rise to the dispatch; there is more than the naked fact that a radio dispatch had described an automobile that fit the description of the defendant’s automobile. Paschal v. State, Ala., 385 So.2d 684(3).

II

Secondly, appellant contends that the trial court erred in allowing the state to introduce in evidence certain pills seized at the time of the arrest. This discovery, he contends, was the result of an illegal arrest. But we hold, supra, that the arrest was lawfully made on the basis of reasonable cause.

III

A third assertion of error is that the court erred in allowing Officer Grady Reeves to testify that appellant told him that, if he would carry him back to Brun-didge, he would reimburse the owner of the store and not to arrest him because he had just gotten out of the penitentiary in January and had twelve more years to do on parole.

It appears in the record that Officer Reeves, while transporting defendant from the point of his arrest to jail, never interrogated him in any manner; neither did he tell defendant of his Miranda rights nor did anyone in his presence so inform defendant. It appears that Officer Wiggins told Officer Reeves as follows:

“Q Had you ascertained whether he had been given his rights or not?
“A Yes, sir. When I took him up to my car I asked Sgt. Wiggins has he been advised of his rights. He said, ‘Yes, I have advised him of his rights.’
“Q When you say rights, we are talking about Miranda.
“A Miranda warning, yes, sir.”

We think the record clearly shows that defendant voluntarily started talking without any pressure or inducement from Officer Reeves.

When the state offered these voluntary statements before the jury, defendant’s counsel objected as follows:

“MR. DOZIER: Your Honor, again I object on the grounds that the defendant in his case was not advised of his constitutional rights and to admit said statement would violate his constitutional rights.
“THE COURT: Overruled.”

The record fails to show that there was any objection by defendant to these statements introduced at the in camera hearing. Defendant is limited to his specific grounds of objection and cannot assert other grounds. All other grounds are waived. The trial court will not be put in error on grounds not assigned in an objection. Andrews v. State, Ala.Cr.App., 359 So.2d 1172(13).

It is to be noted Officer Wiggins testified that after he saw the pill bottles lying on the ground he arrested the defendant Cooper and read his Miranda rights to him. The rights so read to him appear in the record.

Officer Reeves testified that when he arrived on the scene, Mr. Cooper was- beside his vehicle and Fernald, Sgt. Wiggins and Officer Pugh were there. They (the officers) had stopped his vehicle there and defendant was obviously under arrest. He was handcuffed, Officer Reeves then put defendant in his (Reeves) car and took him to jail. While enroute the voluntary statements, supra, were made.

Thus, it appears that only a very short while elapsed between the time Officer Wiggins advised the defendant of his Miranda rights and the inculpatory confession, supra. Under the circumstances the warning to defendant of his Miranda rights was sufficient and a repetition of such rights while the defendant was enroute to jail was not necessary. Johnson v. State, 56 Ala.App. 582, 324 So.2d 298(1), cert. den., Ala., 324 So.2d 305.

The defendant did not take the stand nor did he offer any witnesses.

The evidence in the record supports the jury verdict. The rulings of the trial court were free of error. The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.

On Rehearing

BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, through counsel, calls attention to certain objections made at the in camera hearing regarding the admissibility of appellant’s statements.

However, as noted in our original opinion, the appellant had been properly advised of his constitutional rights by Sergeant Wiggins, and, moreover, the statements in question were made voluntarily by the appellant while being transported from the scene of his arrest to jail, and were not the result of any custodial interrogation. A proper vol-untariness predicate was established by this record.

As pointed out in our original opinion, such statements were properly admitted in evidence at trial.

OPINION EXTENDED, APPLICATION OVERRULED.

All the Judges concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    James Linwood GILL v. STATE.
    6 Div. 145.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.

      James L. O’Kelley, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant pled guilty to an indictment for grand larceny and was sentenced to eight years’ imprisonment. The property involved twelve cases of cigarettes valued at $2,520.00 belonging to the Southern Railway Company. The defendant contends that his guilty plea was involuntary because it was improperly induced in that appointed counsel promised him a three year sentence if he would plead guilty and did not inform him of a plea bargain offer of five years.

The record affirmatively shows that the guilty plea was “intelligent and voluntary” and made in full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). With regard to the alleged inducements and plea bargain, the pertinent portions of the record are set out.

“THE COURT: Has anybody promised to reward you or any member of your family or anybody else to get you to say that you are guilty?
“THE DEFENDANT: No, sir.
“THE COURT: Now, your lawyer and the District Attorney have been talking about the settlement of this ease. Your lawyer has talked to you about the settlement of the case. You have agreed to a certain settlement that’s been recommended to me. I just want to make sure you understand what sentence is going to be pronounced. You just tell me what your understanding is so I’ll make sure you know before I sentence you.
“THE DEFENDANT: My understanding is that I was going to find out what the sentence is now. I wasn’t told nothing.
“THE COURT: All right. Have you talked to him at all, Mr. Hoover?
“DEFENSE COUNSEL: Yes, sir. And I have explained what the offer was.
“THE COURT: I don’t know what any offer is and I don’t want to know. I would much rather you do it. If you don’t want to do it on agreement, I’ll pronounce the sentence if that’s the way you want it done, but I’m telling you I’m going to look at the record and see what record you’ve got.”
* * * * * *
“THE COURT: All right. Mr. Gill, you want me to sentence?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right. Give me the record.
“ASSISTANT DISTRICT ATTORNEY: Judge, I would like the record to reflect that an offer was conveyed to Mr. Hoover by the District Attorney’s office, but the option was left to the Defendant as to whether he wanted the recommendation made or no recommendation made.
“THE COURT: And he wants no recommendation made?
“DEFENSE COUNSEL: Yes, sir.”

Before accepting the guilty plea and sentencing the defendant, the judge further stated that he wanted “everyone to understand that it’s (sentencing) left to me”.

A hearing was held on the involuntariness issue and the defendant was represented by appointed counsel different from that attorney who represented the defendant when the guilty plea was entered.

The State made two offers to the defendant; one for ten years, the other for five years. Defense counsel testified at the hearing and stated that he communicated both of these offers to the defendant who found them unacceptable. He specifically denied promising anything to the defendant to entice him to plead guilty.

At the end of the hearing the judge overruled the defendant’s motion finding “not one scintilla as a basis of fact or anything to urge this motion”. At this hearing the only evidence supporting the defendant’s allegations was his own testimony and that of his wife. This was directly contradicted by the testimony of appointed counsel and the record of the proceedings when the defendant entered the guilty plea. This conflict in the testimony was properly resolved by the judge.

It appears that the defendant’s sole reason for pleading guilty was his belief that he would receive a “lighter” sentence than if tried by a jury. The record supports the finding of the circuit judge that the evidence does not show that the defendant was misled by the allegations of his attorney. “If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases’.” Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), quoting from McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

This case is not within the perimeter of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The governing rule is stated in Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970).

“The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.”

This Court would be remiss if it did not note the fact that this was not the first experience the defendant had in pleading guilty. In 1972, the defendant plead guilty to four grand larceny cases; in 1975, to six burglary and grand larceny cases; and also in 1975, to another burglary charge. Considering all the relevant circumstances surrounding the defendant’s guilty plea, Brady, 397 U.S. at 749,90 S.Ct. at 1469, we find that it was intelligently and voluntarily entered. The defendant’s dissatisfaction with his sentence cannot invalidate his admission of guilt and consent to judgment of conviction.

We have searched the record for error prejudicial to the defendant. Finding none, we affirm the judgment of the Circuit Court.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

On rehearing the defendant argues the case of United States v. Mancusi, 275 F.Supp. 508 (E.D.N.Y.1967), for the proposition that if the defendant was under a serious misapprehension that some promise of leniency had been made then his guilty plea must be held to have been involuntary even though no promise had in fact been made. In Mancusi, the court found that the defendant was denied his constitutional rights to representation and to appeal. The court did not find that the guilty plea was involuntary.

We are in accord with the principles set out in Mancusi read in their proper context. However, at the defendant’s hearing there was a direct conflict between his testimony and that of his attorney. It was for the trial judge to resolve this conflict. The burden of establishing the invalidity of the plea is on the defendant. Mancusi, 275 F.Supp. at 520. While “a guilty plea induced by a mistaken belief that a binding plea agreement had been made is invalid even if it is the defendant’s own attorney who is responsible for the defendant's mistaken belief”, this defendant did not establish any such mistaken belief by a preponderance of the evidence. Mancusi, 275 F.Supp. 508 (1967). Those coercive elements and defects in the cases cited on rehearing are simply not present here.

In this case the trial judge’s examination of the defendant at the time the guilty plea was entered more closely resembles the “penetrating and comprehensive” examination required rather than the perfunctory one actually performed in United States v. Lester, 247 F.2d 496 (2nd Cir. 1957). Here there were no coercive or misleading remarks made by the trial judge— in fact, he told the defendant exactly what he was going to consider. There was no agreement by the State that it would drop any charges or take any action if the defendant pled guilty. United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).

After another thorough review of the entire record in this case, we are convinced that the trial judge, in seeking to determine the voluntary nature of the guilty plea, considered “the cumulative impact upon the defendant of ‘[t]he totality of all the surrounding circumstances’ ”, Mancusi, 275 F.Supp. at 517, and properly determined that the plea was voluntary.

The judgment of the Circuit Court stands affirmed. The application for rehearing is overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Leilus O. MILLER v. STATE.
    1 Div. 41.
    Court of Criminal Appeals of Alabama.
    Feb. 5, 1980.
    M. A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., James F. Hampton, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Manslaughter, first degree; seven years.

The sufficiency of the evidence was not raised in the present case by a motion to exclude, a request for the affirmative charge, nor by a motion for a new trial. The facts in the case are not complicated; therefore, only a brief statement regarding them will be made.

On July 1, 1978, Walter Duffy, James Buck, Vernon Ward and the appellant were sitting in appellant’s front yard in the Orange Beach area conversing and drinking beer. All present were neighbors of the appellant, and all were over sixty years of age. Mr. Ward and the appellant had a disagreement over the cost of a long distance telephone call which Mr. Ward had made from appellant’s telephone. Appellant settled the dispute by presenting the telephone bill to Ward, who then apologized. Appellant claimed that, during the dispute, he was threatened by Mr. Ward who drew a' knife. Appellant went inside his house, obtained a revolver and went outside to rejoin the group. According to Duffy and Buck, appellant sat down, then stood up and fired twice, hitting Ward once. Appellant testified that, when he drew the gun, Duffy and Buck attempted to take it out of his hand, and, during the struggle, the gun discharged once, striking Ward fatally. The jury found appellant guilty of manslaughter in the first degree, setting sentence at seven years imprisonment.

I

The only issue raised on this appeal concerns the propriety of the prosecutor’s remarks to the jury during closing argument. Prom the record:

“Where did it happen? Who was involved? Gentlemen, let me tell you this, you can pick up your newspaper in the morning and you can read about a bad accident or a revolution or an earthquake or something that happened in Cambodia or a mass killing in Chicago or even a murder in Birmingham that doesn’t mean anything to you, very little.
“Well, that’s bad and pass it off. But when it happens here in Baldwin County, it’s getting closer to home. That’s a bad thing. If it happens to a member of your family — (interrupt).
“MR. MARSAL: I object to that as improper. The Supreme Court has condemned that many times, to attack a juror or member of a juror’s family.
“THE COURT: Overruled.”

The appellant insists that the argument was prejudicial and was an appeal to the jury’s passion and prejudice.

In support of this contention, the appellant has cited Racine v. State, 290 Ala. 225, 275 So.2d 655; Atchison v. State, Ala.Cr.App., 331 So.2d 804.

The cases cited by appellant are clearly distinguishable from the present case. At-chison, supra, involved a comment in a robbery case which was directed to females on the jury panel. The'- argument in the present case does not relate to, as did the comment in Atchison, a subject entirely foreign to the robbery. In Atchison, a reference concerning rape was made. The prosecutor’s comment in the present case referred to murder, the exact crime with which the defendant was charged, and to its effect on society. The comment was not totally irrelevant, nor completely foreign to the crime charged, as was the case in Atchi-son.

The comment in Racine v. State, supra, concerned the sale of L.S.D. to five-year olds and was not supported by the evidence.

As was stated in Racine v. State, supra, wide discretion is given to the trial judge in regulating argument of counsel. From the facts presented in this case, the comment did not have the prejudicial effect that the appellant attributes to it. The remark concerned the effect of murder on society and was not impermissible. See Little v. State, 18 Ala.App. 98, 89 So. 303.

We also note the fragmentary nature of the comment, which was not completed, and any review would require speculation on the court’s part. Cofield v. State, 41 Ala.App. 469, 136 So.2d 897.

The trial court, under these circumstances, did not abuse its discretion in overruling the appellant’s objection to the remark. Therefore, the judgment of conviction by the Baldwin Circuit Court is affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and BOWEN, JJ., concur.

BOOKOUT, J., concurs in result.


author: BOWEN, Judge.

text:
    Alonzo Maddox BROOKS v. STATE.
    1 Div. 91.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.

      Donald E. Brutkiewicz, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for first degree burglary and sentenced to thirty years’ imprisonment. The major issue presented on appeal is the failure of the trial judge to give ten of the fifteen written charges requested by the defendant.

Neither at trial nor on appeal has the defendant challenged the sufficiency of the evidence to support his conviction. Under the issues, a statement of the facts constituting the crime for which the defendant stands convicted is unnecessary to this opinion.

I

The. trial judge refused all of the fifteen written charges requested by the defendant. Requested charge number 4 was:

“The Court charges the Jury that the legal presumption of innocence is to be regarded by the Jury, in every case, as a matter of evidence, to the benefit of which the accused is entitled, and, as a matter of evidence it attends the accused until his guilt is, by the evidence, placed beyond a reasonable doubt.”

This is a correct statement of law and a defendant is entitled to have the jury charged to that effect.

“There is no question but that the legal presumption of innocence is evidence in behalf of the defendant and he is entitled to have the jury charged to that effect. Gordon v. State, 268 Ala. 517, 110 So.2d 334; Amos v. State, 123 Ala. 50, 26 So. 524; Harris v. State, 123 Ala. 69, 26 So. 515; Bryant v. State, 116 Ala. 445, 23 So. 40; Newsom v. State, 107 Ala. 133,18 So. 206; Perry v. State, 37 Ala.App. 683, 74 So.2d 619.”
Guenther v. State, 282 Ala. 620, 625, 213 So.2d 679, 683 (1968).

The refusal of this requested charge is error and requires a reversal where it is not fairly and substantially covered in the court’s oral charge. Wilson v. State, 243 Ala. 1, 21, 8 So.2d 422 (1942); Brown v. State, 33 Ala.App. 97, 104, 31 So,2d 670 (1946); Salter v. State, 22 Ala.App. 86, 88, 112 So.2d 538 (1927); Diamond v. State, 15 Ala.App. 33, 39, 72 So. 558 (1916). The only exception to this rule is where the evidence is not conflicting and the general affirmative charge is given in the State’s favor. Bertrand v. State, 46 Ala.App. 631, 247 So.2d 386 (1971). Here, the evidence was conflicting and the affirmative charge was not given. Here also, the “generality of the oral charge . was not sufficient to cover the principle, ‘as a matter of evidence’ ”, in the refused charge. Denson v. State, 50 Ala.App. 409, 412, 279 So.2d 580, 583 (1973). Consequently, the refusal of requested charge number 4 was error.

II

Defendant’s requested charge number 14 was also refused.

“The Court charges the Jury that at no time under the pleadings in this case does the burden of proof shift from the State, notwithstanding the defense of alibi, to satisfy the Jury from the evidence beyond a reasonable doubt that the Defendant is guilty, and if, upon all the evidence, the Jury has a reasonable doubt of the Defendant’s guilt, they must acquit him.”

The defense in this case was alibi. This charge asserts a correct proposition of law and was not fairly and substantially covered in the court’s oral charge. Therefore its refusal constitutes reversible error. Price v. State, 20 Ala.App. 201, 204, 101 So. 300 (1924); Caraway v. State, 18 Ala.App. 547, 548, 93 So. 376 (1922).

Requested charge number 15 was also refused.

“The Court charges the Jury that the Defendant sets up an alibi in this case, and the burden of proof is not changed when he undertakes to prove it, and if by reason of the evidence in relation to such alibi, when considered with all other evidence, the Jury entertains a reasonable doubt as to Defendant’s guilt, he should be acquitted, although you may not be able to find that the alibi has been fully proven.”

The refusal of this charge was also error for the same reason as the refusal of requested charge 14. Caraway, supra.

III

A requested identification instruction which deals realistically with the shortcomings and trouble spots of the identification process should be given where the principle has not been covered by the court’s oral charge. United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (D.C.Cir. 1972); Smith v. State, 54 Ala.App. 248, 250, 307 So.2d 57 (1975).

The legal principle which governs our decision in this case is clear. It is a basic and fundamental standard of criminal procedure.

“. . . (O)ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of this case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. . . . ”
Chavers w. State, 361 So.2d 1106, 1107 (Ala.1978).

See also Traweek v. State, Ala., 380 So.2d 958, (1979).

IV

On appeal, the defendant has submitted the affidavit of a juror alleging misconduct by several of the jurors. There was no motion for a new trial and this matter was never presented to the trial court. It cannot be considered as part of the record upon which this Court must base its decision. Tyus v. State, 347 So.2d 1377, 1380 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977).

This case is reversed and remanded for the failure of the trial judge to give the defendant’s written requested instructions indicated in this opinion.

REVERSED AND REMANDED.

All Judges concur.

      . “The court charges the jury if you believe the evidence in this case beyond a reasonable doubt, you must convict this defendant.” Bertrand, 46 Ala.App. at 631, 247 So.2d at 387.


author: CLARK, Retired Circuit Judge.

text:
    Ernest Lee SANDERS v. STATE.
    6 Div. 51.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    George A. Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

There is no merit in appellant’s contention that the corpus delicti of the crime of grand larceny, for which he was tried and convicted, was not proved. A security manager, working at the time as a store detective, observed defendant in the men’s department of a store looking at shirts. He further testified:

“Q. What, if anything, did you observe then?
“A. Approximately two, or three, minutes later, I observed the same individual from the Men’s Department to the Ladies Department with shirts in his hands.
“Q. And what, if anything, did you see this individual, that we are talking about, do?
“A. Well, as I say, he was in the Ladies Department which is located at the front entrance of the store. He had the four shirts in his hand, and he had them wrapped around his hand, and he exited the store with them.
“Q. Did he stop to pay for them?
“A: No, he did not.
“Q. Did he ask anybody about paying for them?
“A. No, he did not.
“Q. Did he stop and talk to anyone?
“A. No, sir.
“Q. Do you see this particular individual in court?
“A. I do.
“Q. Would you point him out, please?
“A. He is the defendant (indicating).
“MR. GILLIS: Let the record show that the witness indicates the defendant, Ernest Lee Sanders.
“Q. What, if anything, did you do when this occurred?
“A. At this time, I walked out behind the individual. I identified myself as to who I am, and asked him why was the merchandise not placed in a bag. Before I could even complete my statement, this individual—
“Q. Would you describe this conversation, please?
“A. Okay. When I approached the individual, I identified myself to the individual.
“At this time, he told me that — he asked me if I would let him go, due to the fact that he is already — had been in previous trouble.”

There was no evidence presented by defendant. He himself did not take the stand. The evidence showed the value of the shirts to have been above the dividing line between petit and grand larceny.

Appellant further insists that there was a variance between the indictment and the evidence as to the owner of the shirts.

The indictment alleges that the shirts were “the personal property of Southeast Zayre, Inc., a corporation.” Unfortunately, there is ground for some confusion by reason of imprecision or lack of clarity in pronouncing the name of the owner of the property, which could have been avoided, so as to provide an orthographic type of the name found in the transcript of the evidence. For instance, the word “Southeast” as alleged in the name of the owner in the indictment was at times during the trial recorded as “Southeastern.” Even in calling the court’s attention to the claimed variance at the conclusion of the testimony, the transcript of the evidence quotes defendant’s attorney as stating:

“ . . . and that the evidence has shown that the owner of the property was Zayre Corporation.
“The indictment alleges that it was the Southeastern Zayre Corporation. This is a fatal defect, (emphasis supplied).”

Furthermore, variations of Zayre are shown in the transcript at times, which, when reproduced phonetically could mean either the plural of Zayre or the possessive case thereof. The court reporter could not have known which in the absence of information from the person using the word. Also, it is to be noted that when the witness for the State was asked the name that was on a picture offered by defendant of the particular store where the alleged larceny occurred, the witness answered, “Zayres.” On the other hand, the picture discloses that the name is “ZAYRE.”

Notwithstanding the tendency to confusion, which should not have occurred, as to the name of the owner of the store involved, and the merchandise therein, the witness at one point testified as follows:

“Q. What about Southeast Zayre? Where is it incorporated?
“A. I’m not sure.
“Q. Is there such a corporation as Southeast Zayre? ■
“A. To my knowledge, there is.
“Q. To your knowledge, is it — are you sure that it is not just a store that is Southeast, Southeast Zayre Store?
“A. Pardon?
“Q. Is there a Southeast Zayre Store?
“A. Not to my knowledge, there is not.”

The quoted part of the testimony refutes the gist of appellant’s contention:

“Appellant contends that Zayre is the trade name and is the name that the store holds itself out to be. This clearly shows the ‘Trade Name’ of the store and is proof of the error in the allegata and the probata.”

The quoted testimony also distinguishes the instant case from Gaskin v. State, 42 Ala.App. 310, 163 So.2d 220 (1964), in which it was held that there was a fatal variance between an indictment charging that the property belonged to “Gulf Mills, Inc., a corporation” and evidence showing that the store from which the goods were stolen “held itself out by the trade name of ‘Gulf Mills Department (or Discount Department) Store.’ ”

There is no substantial evidence to indicate that two separate legal entities (one stated in the indictment and another disclosed by the evidence) were involved. It is clear that the confusion was merely as to the precise name of the entity that owned the property, that Southeastern was either misunderstood for Southeast or was used synonymously therewith, which it truly is, and that there is substantial evidence that the property was owned by Southeast Zayre, a corporation, the identical name of the owner as alleged in the indictment, except that the abbreviation “Inc.” is included in the name stated in the indictment. This difference does not constitute a variance. As stated in Irvin v. State, 44 Ala.App. 101, 203 So.2d 283, 288 (1967):

“ ‘Inc.’ connotes a corporation. Thus, in Indian Refining Co. v. Royal Oil Co., 102 Cal.App. 710, 283 P. 856, we find:
“ ‘ * * * It has been held that the abbreviation “Inc.,” means “incorporated,” and is equivalent to “(a corporation)” Goldberg, Bowen & Co. v. Dimick, 169 Cal. 187, 146 P. 672. On the same reasoning, the words “Indian Refining Co., Inc.,” as used in the complaint herein, are equivalent to “Indian Refining Company (a corporation)” * * * >
“See also Brandtjen & Kluge v. Biggs, 205 Or. 473, 288 P.2d 1025, 51 A.L.R.2d 1435.”

We find no error in the record. 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.

      . See also Suttle v. State, Ala.Cr.App., 377 So.2d 1121, cert. den. 377 So.2d 1122, wherein the allegation in the indictment as to ownership is identical with such allegation herein. Notwithstanding some difference between the two cases in the evidence as to the name or identity of the owner, it is to be noticed that the same result is reached in this case as in that case.


text:
    Samuel Phillip JOHNSON v. STATE.
    8 Div. 248.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.

      Richard A. Kempaner, Huntsville, for appellant.
    Charles A.'Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Samuel Phillip Johnson was indicted by the Jackson County Grand Jury for first degree murder and charged with killing Timothy Chris Edwards “by shooting him with a shotgun.”

A motion to quash indictment and jury venire was denied. After a hearing, an application to be arraigned as a youthful offender was also denied.

The appellant was tried by a jury on the first degree murder charge and was found guilty of murder in the second degree and sentenced to eighteen years in the penitentiary.

On Halloween night, October 31, 1978, Chris Edwards [the victim], and two of his friends had gone “halloweening” around Jackson County in Edwards’ pickup truck. After purchasing beer and eggs they rode “up and down the road egging a few friends.”

The appellant, his brother, and his cousin, were also riding in Jackson County that night. After being “egged” the second time, the appellant and his two companions followed the victim and his friends, who, attempting to hide, pulled into Walker Mill’s Lane.

The testimony indicated that, when the victim and his friends attempted to drive out of the “Lane,” the appellant and his companions blocked the exit. At that point, the appellant and his companions jumped out of their car, walked over to the truck, and began to curse the victim. A scuffle ensued between the appellant s companions and the victim. After the scuffle, the appellant walked to his car and got a shotgun, which he placed to his shoulder and fired at the victim. The fatal shot hit the victim in the center of his chest.

Testimony indicated that, at the time the victim was shot, he did not have a weapon, although he was approaching the appellant with hands by his side. Further, the appellant said he did not see a weapon in the victim’s hands, but he did see the victim reach into his pocket. No weapon was ever found on the victim.

I

The appellant contends that the trial court erred in denying his motion to quash the venire from which the grand jury was drawn. He argues that the venire was not drawn from a box filled in compliance with Act No. 594, Acts of Alabama, Regular Session 1978. Further, he maintains that the grand jury was drawn from a jury venire empanelled according to a statutory scheme which had been “expressly repealed.”

On April 27, 1978, Act No. 594, Acts of Alabama, Regular Session 1978, was enacted into law. Act No. 594 completely changed the procedure or method of qualification in selecting prospective jurors and specifically repealed prior Code sections. On August 7, 1978, during the special session of the Alabama Legislature, Act No. 594 was amended by Act No. 14 (§ 12-16-58), Code of Alabama 1975, 1978 Interim Supplement. This amendment dealt exclusively with setting up a time provision for the implementation of Act No. 594.

The criminal offense with which the appellant is charged occurred on October 31, 1978. On August 14, 1978, the grand jury was drawn from a box filled in accordance with the old procedure and not Act No. 594, supra. This grand jury, on January 26, 1979, returned an indictment against the appellant for first degree murder.

The new law, Act No. 594, supra, became effective on April 27, 1978, the day the Act was signed by the governor. Act No. 594 provided that the jury commission had until July 31, 1978, to implement the new system of selecting jurors. This new system was totally different from the old procedure and time was needed to compile new jury lists to refill master jury boxes and to mail out qualification questionnaires. If the jury commission had been required to select prospective jurors according to Act No. 594 within the time available, then the commission would have been required to perform a seemingly impossible task.

As stated in 1A C. Sands, Sutherland Statutory Construction, § 23.06 (4th ed. 1972), “The courts will not ascribe to the legislature an intent to create absurd or harsh consequence, and so an interpretation avoiding absurdity is always to be preferred.”

In our judgment,- the legislature, in an attempt to prevent confusion and to allow for an orderly systematic selection of jurors in accordance with Act No. 594, supra, extended the time for implementing the new jury law. The amended language of § 2 of Act No. 14, (§ 12-16 — 58, Code of Alabama 1975, 1978 Interim Supp.) reads, in pertinent part, as follows:

“. . . The master jury box shall be filled as prescribed in this article by December 31, 1978, and shall be emptied and refilled in December of each even-numbered year thereafter.” [Emphasis added].

Additionally, the legislature, in order to make the intentions specific, added the following language to § 14 of Act No. 594:

“Section 14. Effective Date. This act shall become effective immediately upon its passage and approval by the governor or upon its otherwise becoming law. Provided, however, that nothing in this section shall be construed so as to require the jury commission to refill the master jury box, or to otherwise establish a trial court jury box of qualified prospective jurors prior to the time specified in Section 4(b) of the Act.” [Emphasis added].

Turning again to 1A C. Sands, supra, at § 22.31, we find:

“If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act — a formal change — rebutting the presumption of substantial change.”

Act No. 14, which was passed by the legislature on August 7, 1978, clearly states that the master jury box “shall be filled as prescribed in this article by December 31, 1978.” Under Act No. 14, supra, the new jury selection law [Act No. 594] was not required to be placed in effect until December 31, 1978.

The members of the grand jury who were empanelled on August 14, 1978, and who ultimately indicted the appellant in the present case were drawn from a jury box filled in accordance with the then existing law. Under the facts in this case, the provision for filling the jury box under Act No. 594, supra, was not in effect and did not become effective until December 31, 1978.

Therefore, the trial court properly denied the appellant’s motion to quash the grand jury venire.

II

The appellant complains that the trial court’s denial of youthful offender status was reversible error because the denial was based only on the nature of the crime charged without any consideration given to other factors, such as prior convictions and age of the defendant. The only reference to a hearing on the appellant’s application for youthful offender status appears in the following portion of the record:

“On this the 2nd day of March, 1979, in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with his attorney, Richard Kempaner, for hearing on defendant’s application for Youthful Offender Status, and a hearing was held. Youthful Offender Status is denied and the case is placed on the docket for trial as an adult.”

It is the appellant’s contention that the trial court considered only the nature of the crime charged. He argues that this is a matter of record. Nowhere in the record do we find that the trial judge considered only the offense in his determination of whether this appellant would be given youthful offender status. As can be seen from the above portion of the record, reflecting the only reference to youthful offender status, a hearing was held, and the application for youthful offender status was denied. We cannot' determine from this record what factors the court considered in ruling on the appellant’s application.

Under Edwards v. State, 287 Ala. 588, 253 So.2d 513, and Dates v. State, 282 Ala. 457, 212 So.2d 845, this court can only consider matters contained in the record proper and cannot consider appellant’s contentions that are not supported by the record.

From our reading of the above cited portion of the record, we cannot say that the trial court did not consider factors such as prior conviction and age of the appellant. For aught that it appears, the court may have considered the foregoing factors in the hearing which was conducted. Therefore, under this limited record, we do not believe that error can be attributed to the trial judge. Watkins v. State, Ala.Cr.App., 357 So.2d 156.

Under these facts, the trial court’s denial of youthful offender status is not error.

No error appearing in the record, the judgment of conviction by the Jackson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie Clarence BURNETT v. STATE.
    8 Div. 292.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Harvey- B. Morris, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On an indictment charging murder in the first degree, a jury found appellant guilty of manslaughter in the first degree and fixed his punishment at imprisonment for ten years. He was sentenced accordingly.

The alleged victim was Nora Banks who was killed by a pistol bullet that entered her skull from front to rear. This occurred while she was in the home of. defendant while a drinking and dancing party was in progress in which five or six adults and three or four times as many children were present on Sunday night, April 29, 1979. She arrived after most of the others and was accompanied by a man who later left the house without her. She and some others present left temporarily to obtain alcoholic beverages. She didn’t seem to get along well with the others. She engaged in separate arguments with two of the women. State’s witnesses testified that the party came to an abrupt halt when they heard a gunshot in another room. Upon hearing the gunshot, they immediately left the house, all except some children, appellant, Nora Banks, and Dennis Scott, seventeen years of age, who testified he had not been drinking.

Dennis Scott further testified he heard the appellant tell Nora Banks “to throw her gun out and come out of the bathroom,” and then he heard a shot. He said he heard appellant tell Nora Banks again to come out of the bathroom and that some time thereafter he heard a second shot, and possibly a third shot. Upon hearing the last shot, the witness said he “went back in there” where the shots were fired and saw Nora Banks on the floor and the appellant with a pistol in his hand, and that thereafter appellant said “he was going to call the ambulance and police.”

The body of the victim was left lying on the floor until officers arrived. They found and removed a fully loaded .32 caliber pistol from her clothing. A witness for defendant, Joe Ed Kelly, Jr., fifteen yeas of age, testified that after Nora Banks had finished arguing with his mother, she started for the bathroom and at that time pulled a pistol. He said that he then told appellant that “she was getting the gun.”

Appellant testified that he heard Joe Ed Kelly, Jr., say “she was getting that gun,” and he tried to stop Nora Banks by grabbing her arm, but he didn’t succeed. He said he then went to his bedroom and took his pistol out of the drawer, then went back into the hall and asked Nora Banks to “throw her gun out.” According to his further testimony, Nora Banks made no response, and he shot into the floor “to let her know (he) had a gun;” that he asked her again to throw her gun out and she did not do so. Then Nora Banks unlocked the bathroom door and came out cursing appellant, with her hand in her purse. He said he then “backed back” and fired.

No contention is made on appeal that the evidence was not sufficient to justify the verdict. We see no reasonable basis for such a contention. Even though there was evidence to show self-defense, the jury was justified in concluding that some of the elements of self-defense were lacking. The evidence is almost conclusive that deceased did not have a pistol in her hand at the time she was shot by defendant.

Appellant argues that the court erred in refusing to admit testimony “relating to the bad reputation of the victim for carrying a gun.” While the witness Joe Ed Kelly, Jr., was being cross-examined, he was asked by defendant’s counsel, “Did you know her [Nora Banks] reputation in this county for being a gun carrier or gun toter?” State’s counsel then said, “Your Honor, I object; he hasn’t laid the proper predicate. Hasn’t been put in issue.” The court then said, “Sustained.” On cross-examination of Mrs. Mae Kelly, she was asked by defendant’s counsel, “Did you know her [Nora Banks] reputation in the community for carrying a gun?” State’s counsel then said, “Judge, I object,” and the court said, “Sustained.”

There was no evidence that defendant knew the general reputation of the deceased. There was no offer on the part of defendant to show that he knew or had been informed of the reputation of deceased for carrying a gun.

“If the evidence tends to show that the accused acted in self-defense, the accused is entitled to prove that the deceased was in the habit of carrying firearms or other deadly weapons or that he had the reputation of habitually being armed. Such evidence, however, is only admissible if the accused has introduced or offers to introduce other evidence that he knew or had been informed of such habit prior to the alleged offense, as otherwise it could not have influenced his conduct.” Gamble, McElroy’s Alabama Evidence, § 63.-01(2) (1977).

Applicable here as adversely dispositive of appellant’s insistence is the second sentence of the quoted statement, which is supported by the cited cases of Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied, 288 Ala. 743, 263 So.2d 516 (1972); Glover v. State, 200 Ala. 384, 76 So. 300 (1917).

Appellant complains of the language of the trial court in its oral charge in instructing the jury as to the defense of self-defense, particularly that part of the charge as follows:

“. . . Before the law will justify or excuse a homicide under the plea of self-defense, the person relying on the plea should not have provoked or encouraged the difficulty and that he was or appeared to be so menaced at the time to create reasonable apprehension of danger to his life or of receiving serious or grievous bodily harm and ordinarily that there was no other reasonable hope of escape from such impending peril except in one’s own home or place of business.”

The transcript shows that immediately after the instruction quoted above, the court said:

“So that as it applies in this situation, in order to be justified, in order for a homicide to be justified or excused because of self-defense, the person relying on it must not have provoked or brought on the difficulty and he must have been or appeared to be at the time so menaced as to create reasonable apprehension of danger to his life or of receiving serious or grievous bodily harm.”

This last quoted portion of the court’s oral charge negates, in our opinion, the contention of appellant that an issue of fact was submitted to the jury as to whether defendant was in his own home. Criticism is directed also to the use of the expression “hope of escape” instead of “mode of escape” or “means of escape” or the like. Appellee suggests the possibility that the choice of the word “hope” as shown in the transcript could be an error “in transcription.” We cannot say, of course, but no prejudice could have resulted therefrom to defendant as it is clear that the duty to retreat in different circumstances was eliminated by the trial court as an element of self-defense in the instant case, in which the undisputed evidence showed conclusively that defendant was in his own home. Furthermore, we should note that apparently no exception was taken to the oral charge.

After the jury had deliberated for a substantial period of time, it returned to the courtroom and requested that some portions of testimony of witnesses be read to the jury by the court reporter, which was done. The transcript on appeal does not show what portions of such testimony were read to the jury by the court reporter. Appellant says that “since it cannot be determined what the court reporter read back, the substantial rights of the Appellant were injuriously affected.” He cites in support of his contention Adams v. State, 46 Ala. App. 402, 243 So.2d 386 (1970), in which the testimony as read back by the reporter was substantially more unfavorable to defendant than the actual testimony of a witness. This required a reversal. There the error prejudicial to defendant was affirmatively shown. Here we are asked to base a presumption of prejudice upon an unwarranted assumption of an error of the court reporter.

We have searched the record for error prejudicial to defendant and have found none. 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.


author: ALDERMAN, Justice.

text:
    Allen Michael JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 53297.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Robert E. Jagger, Public Defender, and Robert Dillinger, Asst. Public Defender, St. ■ Petersburg, for appellant,
    Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   ALDERMAN, Justice.

This is a direct appeal from a circuit court’s judgment adjudicating the defendant Allen Michael Johnson guilty of grand larceny of a motor vehicle in violation of section 812.021, Florida Statutes (1975), and upholding the constitutionality of section 90.08, Florida Statutes (1975). In addition to his constitutional challenge, Johnson contends that the trial court erred in denying his requested jury instruction on petit larceny as a lesser included offense of grand larceny of a motor vehicle. We reject both contentions and affirm the judgment of the trial court.

Section 90.08, Florida Statutes (1975), provides:

Witnesses; conviction of other crimes as disqualification. — No person shall be disqualified to testify as a witness in any court of this state by reason of conviction of any crime, but his testimony shall be received in evidence under the rules, as any other testimony. Evidence of such conviction, including the fact that the prior conviction was for the crime of perjury, may be given to affect the credibility of the said witness, and such conviction may be proved by questioning the proposed witness or, if he deny it, by producing a record of his conviction. Testimony of the general reputation of said witness may likewise be given in evidence to affect his credibility.

The constitutional challenge to section 90.08 was made in the following context. Prior to trial, Johnson filed a motion in limine seeking to limit the prosecution in its questioning in regard to his prior criminal record and convictions in the event he elected to testify on his own behalf. He alleged that to allow impeachment of his credibility by evidence of his prior crimes would violate his right to due process and that, therefore, section 90.08 is unconstitutional. The trial judge denied his motion and held the statute constitutional. At trial, Johnson testified on his own behalf, and on cross-examination the state attorney asked him how many times he had been convicted of a crime. Johnson responded that he recalled two convictions. On redirect examination, defense counsel then made the following inquiry:

Q. Now, these two convictions that Mr. Crow asked about, those misdemeanors or felonies?
A. Well, I think they misdemeanors.
Q. And was one a DWI?
A. Yes, I think so.
Q. And obstructing without violence?
A. I think so.

Johnson argues that this statute constitutes a violation of his right to due process of law because it infringes upon his right to testify in his own behalf. In the past, this Court has carefully construed section 90.08 in such a way as to protect the due process rights of a defendant. For example, in McArthur v. Cook, 99 So.2d 565 (Fla.1957), which held that section 90.08 is equally applicable in civil and criminal cases, we were confronted with the question of whether the trial judge committed error in refusing to permit the cross-examination of a witness with reference to his prior conviction of crimes. We acknowledged that the application of the act presented problems which,, for the guidance of the bar and the trial courts, we undertook to eliminate. As to the proper procedural approach to be taken during trial to impeach the credibility of a witness by prior convictions, we explained:

[T]he proper procedural approach is simply to ask the witness the straight-forward question as to whether he had ever been convicted of a crime. The inquiry must end at this point unless the witness denies that he has been convicted. In the event of such denial the adverse party may then in the presentation of his side of the case produce and file in evidence the record of any such conviction. If the witness admits prior conviction of a crime, the inquiry by his adversary may not be pursued to the point of naming the crime for which he was convicted. If the witness so desires he may of his own volition state the nature of the crime and offer any relevant testimony that would eliminate any adverse implications; for example, the fact that he had in the meantime been fully pardoned or that the crime was a minor one and occurred many years before. The restrictions on the use of this type of interrogation to reflect adversely on the credibility of a witness have been well illustrated by other cases. It would be repetitious to elaborate on this phase of the matter here. See Mead v. State, supra; Collins v. State, 155 Fla. 141, 19 So.2d 718; Wilson v. State, 134 Fla. 199, 183 So. 748; Robinson v. State, 80 Fla. 736, 87 So. 61. See also 58 Am.Jur., Witnesses, Sec. 734, et seq.

99 So.2d at 567.

A criminal defendant is privileged to testify in his own behalf or to refuse to testify. Once he becomes a witness, however, he may be examined the same as other witnesses on matters which illuminate the quality of his testimony. Mead v. State, 86 So.2d 773 (Fla.1956). When a defendant voluntarily takes the stand, he is under an obligation to speak truthfully and accurately. The credibility of a witness and the weight to be given his testimony is a matter to be determined by the trier of fact. The inquiry permitted by section 90.08 gives the trier of fact further insight into a defendant’s credibility. We find that the procedure utilized in this state for impeachment of the credibility of a witness by prior convictions, as set out in section 90.08 and explained in McArthur v. Cook, which precludes the naming of the offenses by the prosecution when the defendant admits pri- or convictions, does not place an unreasonable burden on a defendant’s right to testify and does not violate a defendant’s right to due process of law. In the present case, the prosecutor followed the correct procedure in cross-examining Johnson about his prior convictions. It was Johnson’s own counsel who asked him to identify the offenses for which he had been convicted.

Johnson relies on State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971), as the basis for his argument that section 90.08 violates his right to due process of law. In Santiago the Supreme Court of Hawaii was confronted with the question of whether impeachment of a defendant’s credibility in a criminal case, by showing that he had previously been convicted of first-degree burglary, violates his constitutional right to testify in his own defense. The court concluded that evidence of prior convictions is of only minimal relevance to a witness’s credibility and held that to convict a criminal defendant where prior crimes have been introduced to impeach his credibility as a witness violates the accused’s constitutional right to testify in his own defense. The present case is factually distinguishable from Santiago. Furthermore, we decline to follow the rationale of the Hawaii court that evidence of prior convictions is only of minimal relevance to a witness’s credibility or to adopt the holding of that court that impeachment of the credibility of a criminal defendant violates the due process clause.

As to the other issue included in this appeal, Johnson argues that the trial court erred in failing to instruct the jury on petit larceny, which he contends is a lesser included offense of the crime of grand larceny of a motor vehicle. Section 812.021(2) provides that if the property stolen is a motor vehicle the offender shall be deemed guilty of grand larceny. There is no requirement in the statute that the motor vehicle have any minimum value. Theft of a motor vehicle is grand larceny regardless of the value of the motor vehicle.

We hold that the trial court did not err in refusing to instruct the jury as to petit larceny since there is no lesser included offense of petit larceny to the charge of grand larceny of an automobile. The evidence before the court was that a motor vehicle was stolen. This evidence does not admit of any finding on which the jury might have predicated a finding of petit larceny.

Accordingly, we hold that section 90.08 is constitutional as applied to Johnson and that the trial court correctly refused to instruct the jury as to petit larceny, and we affirm the judgment of the trial court.

It is so ordered.

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


author: OVERTON, Justice.

text:
    Harold E. LANGE, Petitioner, v. Billie Carola LANGE, Respondent.
    No. 54347.
    Supreme Court of Florida.
    Jan. 31, 1980.
    Rehearing Denied March 27, 1980.
    Jos. D. Farish, Jr., Dennis R. Long and F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for petitioner.
    Edna L. Caruso, and the Law Offices of Montgomery, Lytal, Reiter, Denney & Sear-cy, West Palm Beach, for respondent.
   OVERTON, Justice.

This case is before us on petition for writ of certiorari to review a decision of the Fourth District Court of Appeal reported at 357 So.2d 1035 (Fla. 4th DCA 1978). The district court affirmed the trial court’s judgment of dissolution which had awarded to a mentally ill wife exclusive possession of the marital home based on this special circumstance and demonstrated need. We accepted-jurisdiction because the decision conflicts with Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975). That conflict, however, has been resolved by our decisions in McDonald v. McDonald, 368 So.2d 1283 (Fla.1979), and Duncan v. Duncan, 379 So.2d 949 (Fla.1980), which expressly disapproved Saviteer. Conflict having been resolved, we deny certiorari.

It is so ordered.

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

      . Art. V., § 3(b)(3), Fla.Const.


author: PER CURIAM. BOYD, Justice,

text:
    In re FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. 54525.
    Supreme Court of Florida.
    Feb. 21, 1980.
    Bernard H. Dempsey, Jr., Chairman, Standing Committee on Unauthorized Practice of Law, Orlando, and H. Glenn Boggs, Asst. Staff Counsel-UPL, Tallahassee, for The Florida Bar.
   PER CURIAM.

The Florida Bar has filed a motion for rehearing requesting that we reconsider their suggestion that Rule of Judicial Administration 2.060(b) be amended to specify that foreign lawyers admitted on a temporary basis in Florida must associate Florida counsel. The Bar asserts that this amendment is necessary to avoid conflict with Florida Bar Integration Rule, Article 11(2). The Florida Bar further brings to our attention the possible confusion resulting from the double qualifier in paragraphs (b) and (d) of Rule of Judicial Administration 2.060.

We deny the request to require foreign lawyers admitted on a temporary basis to mandatorily associate Florida counsel. We find it more appropriate to leave such a requirement to the discretion of the court which has jurisdiction of the cause; the requirement may be imposed when that court finds it necessary.

We acknowledge the need to eliminate the double qualifier in Rule of Judicial Administration 2.060(b) and (d), and we recognize that Florida Bar Integration Rule, Article 11(2), should be amended to conform to the new Rule of Judicial Administration 2.060(b).

The appended amendments of Rule of Judicial Administration 2.060(b) and Florida Bar Integration Rule, Article 11(2), are hereby adopted as revised and shall take effect upon the filing of this opinion.

It is so ordered.

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

BOYD, J., dissents with an opinion, with which ALDERMAN, J., concurs.

SUNDBERG, J., dissents.

Upon consideration of the motion for rehearing filed by the Florida Conference of Circuit Court Judges,

IT IS ORDERED by the Court that said motion be and the same is hereby denied.

ENGLAND, C. J., and ADKINS, BOYD and ALDERMAN, JJ., concur.

OVERTON and SUNDBERG, JJ., would grant the motion for rehearing.

McDONALD, J., did not participate on this motion for rehearing.

RULE OF JUDICIAL ADMINISTRATION

RULE 2.060. ATTORNEYS

(b) FOREIGN ATTORNEYS. Upon motion filed with a court showing that an attorney is a member in good standing of the bar of another state, attorneys of other states may be permitted to appear in particular cases in a Florida court. A request for an appearance shall be submitted before oral arguments in an appellate court proceeding and before trial in a trial court. Attorneys of other states shall not do a general practice unless they are members of The Florida Bar in good standing. INTEGRATION RULE OF THE FLORIDA BAR

ARTICLE II

MEMBERSHIP

2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another, state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it made to appear that he has associated and appearing with him in such business an active member of The Florida Bar; upon such conditions as the court deems appropriate under the circumstances of the case.

BOYD, Justice,

dissenting.

I respectfully dissent.

The only way to control the handling of litigation before the courts of this state is to have attorneys in cases who are accountable and subject to discipline by Florida judges. This cannot be accomplished effectively unless foreign attorneys are required to associate Florida attorneys over whom the courts exercise direct control.

The Florida Bar’s request for such requirement should be adopted.

ALDERMAN, J., concurs.


author: ENGLAND, Chief Justice.

text:
    DUVAL UTILITY COMPANY, Petitioner, v. The FLORIDA PUBLIC SERVICE COMMISSION, Respondent. PASCO WATER AUTHORITY, INC., etc., Petitioner, v. The FLORIDA PUBLIC SERVICE COMMISSION, Respondent.
    Nos. 55723, 56105.
    Supreme Court of Florida.
    Feb. 21, 1980.

      Kenneth M. Myers and R. M; C. Rose, of Myers, Kaplan, Levinson, Kenin & Richards, Miami, for Duval Utility Co. and Pas-co Water Authority, Inc., petitioners.
    Leon F. Olmstead, Staff Counsel and Prentice P. Pruitt, Legal Director, Tallahassee, for Florida Public Service Commission; and Jack Shreve, Public Counsel and William S. Bilenky, Associate Public Counsel, Tallahassee, for the Citizens of the State of Florida, respondents.
    Gary P. Sams, of Hopping, Boyd, Green & Sams, Tallahassee, for General Development Utilities, Inc. and Florida Waterworks Ass’n, amicus curiae.
    Gerald A. Figurski, County Atty., and Scott L. Knox, Chief Asst. County Atty., Port Richey, for Pasco County, amicus curiae.
   ENGLAND, Chief Justice.

These consolidated cases bring to us two orders of the Public Service Commission which condition the right of two utilities to receive service availability charges (commonly known as “connection charges,” or contributions in aid of construction) from their customers. Under the commission’s orders, the utilities must agree to hold all such charges from company customers solely for the use and benefit of those customers, not only during the course of future rate proceedings but also upon the sale or other disposition of the utilities’ properties. The main purpose of the commission’s condition for service availability charges is to assure that customers do not have to pay for the system twice upon its sale or condemnation, once through their contributions and a second time through their rates to support the transferee’s investment when a sale or condemnation includes contributions. A more complete factual account of the history of this case is helpful to its determination.

The utilities applied to the commission for approval of service availability charges pursuant to section 367.101, Florida Statutes (1977). Appropriate proceedings were conducted by the commission for a determination of the propriety of the proposed charges, after which the commission entered orders approving the requested amount of charges. In those orders, the commission for the first time articulated what it described as “a new approach to the question of customer contributions.” The relevant text of one of the orders explains this new approach and its rationale:

We recognize that the customers (be it the developer who builds the service facility or the owner thereof), by payment to the utility of the service availability charges (CIAC) are “purchasing” water and sewer utility service availability. However, CIAC is a contribution to the utility’s capital and is so recognized by both State and Federal law. (See 1976 Tax Reform Act, 90 Stat. 1912). So long as the initial utility that receives the CIAC provides the service, the customer receives the benefit of his contributions in the form of lower rates because CIAC is deducted from the company rate base. However, when the utility is sold, whether by condemnation or negotiation, if the seller makes no allowance or price reduction (and they usually do not) for the service facilities financed through customer CIAC, as a result, the CIAC may become investment in the hands of the buyer, which investment must be supported by the rates paid by the customers. This is grossly discriminatory. Systems owned by governmental agencies may. be financed either through bonds or by assessments against prospective users, or a combination of both. Thus, the customers who have financed a system in whole or part through CIAC may have to pay for it again through rates or taxes to support bonds sold to buy the system. The same would apply to a sale to another investment-owned company.
We believe that, in accordance with the weight of authority, the profit on the sale of utility assets must, to a degree, inure to the benefit of the customers, and we propose to provide therefor.
To the extent that the customers have borne the burden of providing capital or facilities used to provide the utility service, they should share with the utility owners in the benefits which may result from the sale of those facilities. Therefore, we will require as a condition precedent to the implementation of the proposed service availability policy and increased charges, an agreement by the utility, which will be incorporated in its service availability policy and all developer agreements. The agreement and tariff provisions will provide that all monies and property received by the company as contributions, or without investment by the utility company, will be held, or received by the utility solely for the use and benefit of its customers. Such contributions will have no value in any future proceedings wherein establishment of rates for service is considered, or sale or transfer of the utility system, whether by a negotiated sale or by condemnation under the statutes relating to eminent domain. The agreement will also provide that, in establishing value of a utility system, any consideration relative to the ability of a water and/or sewer utility system to support or provide a return on investment through its revenue, will be on the basis of the ratio between company investment in gross plant in service and contributions-in-aid-of-construction. The revenue representing the portion of company investment in plant in service will be the sole criterion for the evaluation.

Three issues are presented for our consideration, the first of which is dispositive. That issue is whether, as petitioners allege, there was an' absence of competent and substantial evidence to support the commission’s findings. We agree with petitioners that the evidence was legally deficient.

The commission supports its conclusion regarding conditional service availability charges (i) by the testimony of a county commissioner in one proceeding to the effect that a municipal or county condemning authority would be required to pay for contributions in aid of construction, and (ii) by an accountant for the company in the other proceeding to the effect that customers would never receive any proceeds from a sale or condemnation of the water utility. While these statements are obviously relevant to the ultimate policy decision— whether customers should receive the benefit of service availability charges on the sale or disposition of utility property — they do not constitute competent substantial evidence for the commission’s determination.

Competent substantial evidence is “such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred [or] . . . such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). The conclusory statements relied on by the commission do not provide sufficient support for the findings necessary to underpin the commission’s action, among which are: (1) that on sale or condemnation, the cost of all property designated as contributions in aid of construction must be supported by the rates paid by customers, and (2) that on sale or condemnation of utility property no allowance or price reduction is made for contributions in aid of construction.

Because the orders lack competent substantial evidence to support the commission’s incipient policy determination, we quash that portion of the order conditioning service availability charges and remand these cases for further proceedings below. Section 120.68(10), Fla.Stat. (1977).

It is so ordered.

ADKINS, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

BOYD, J., dissents.

      . Petitioners allege that their right to procedural due process was violated by the lack of adequate notice that a new condition would be imposed, § 120.57(l)(b)2, Fla.Stat. (1977), and by the denial of an opportunity to address the issue in an adjudicative proceeding, § 120.-57(l)(b)4, Fla.Stat. (1977). They also allege that the commission lacks legal authority to condition the approval of service availability charges, either under section 367.101, Florida Statutes (1977), or under any other statute by which the commission is assigned responsibility over water and sewer companies. In light of our decision on the first issue, we find it unnecessary to reach either of these issues.

      . §§ 120.68(10), 120.57(l)(b)7, Fla.Stat. (1977).

      . McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).