author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Michael A. NANCE v. STATE.
    8 Div. 575.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.
    Certiorari Denied, July 16, 1982
    Alabama Supreme Court 81-648.

      John Mark McDaniel, McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence based upon a finding of a jury that defendant was guilty of robbery in the first degree.

Appellant’s contention that the evidence was not sufficient to support the verdict and judgment is not well taken. According to the testimony of the alleged victim, he was employed on July 3,1980, at the U-Totem and while he was so employed the following occurred:

“A. Okay, two black people came in the store and just walked back toward the beer cooler in the back of the store and just looked at the beer back there, trying to decide what they wanted or something and brought some up to the front and asked how much it was and then decided they didn’t want that and took it back and got some more and brought it up and they did that about two or three times; and while they were doing this one of them bought a pack of cigarettes and then as I was ringing up the beer that they finally brought up there he pulled a gun on me and told me to step away from the counter and freeze and I did that and then he told me to open up the register and so I did that and then they led me back into the back to the storage room and they told me not to come out and put the stamp machine in front of the door, so that I couldn’t get out and after a few minutes I opened the door and looked out to see if they were still there and they were there and they had started driving off and so I opened the door and ran toward the door of the store and got their tag number and just followed them out as they took off down the road. I ran out to the highway to see whether they went down toward the Parkway or turned on Blue Springs Road; and then I came back in and called the police.
“Q. Robert, was that tag number that you gave the police was that EWG-807? “A. Yes, sir.
“Q. Robert, I will ask you one more time, please, sir, if you will look at Mr. Nance and tell us, please, sir, is there any doubt in your mind that this is the person that pulled the pistol on you and took the money from the store that you were working at?
“A. It was him for sure.”

The defendant and one of his friends testified they were together at the friend’s house at the time of the robbery. The defendant emphatically denied he was a participant in any way in the robbery.

According to the undisputed evidence, robbery in the first degree occurred. A factual issue was presented as to whether defendant was one of the robbers.

State’s Exhibit No. 1 consists of two photographs of each of six black males including the defendant. On each of the photographs is a placard bearing a number and the legend “POLICE DEPARTMENT HUNTSVILLE ALABAMA” or the like. The State showed that these photographs had been exhibited to the witness Robert Anderson by a police officer and that Anderson identified the photographs of the defendant as the robber with the gun. Thereupon, the following occurred:

“MR. HOOPER: Your Honor, the State would offer into evidence State’s Exhibit 1.
“MR. RYAN: Your Honor, we object at this time as being unduly suggestive. “THE COURT: Let me see, please, sir.
“Overrule. It’s admitted.”

State’s Exhibit 1 should not have been offered in the condition we find it now. The photographs obviously come within the terminology of “mug shots” or “rogues gallery” pictures that can readily lead to the commission of reversible error. Rudolph v. State, Ala.Cr.App., 398 So.2d 386 (1981); Carlisle v. State, Ala.Cr.App., 371 So.2d 975 (1979); Holselaw v. State, Ala.Cr. App., 364 So.2d 378 (1978). Nevertheless, the objection made to the introduction of State’s Exhibit 1 was not a valid ground of objection. The term “unduly suggestive” as employed in connection with the introduction of evidence relative to an extrajudicial photographic identification of a person as that of a defendant is referable to the question of the claimed suggestiveness or suggestion to be found on or in the photograph itself, or the circumstances of the extrajudicial identification by the photograph, that the photograph is in fact a photograph of the defendant. No such suggestiveness or suggestion is to be observed in any part of State’s Exhibit 1 or in any of the circumstances of the extrajudicial photographic identification involved in this case. Although the trial court could well have sustained defendant’s objection to the introduction in evidence of State’s Exhibit 1 unless and until the “mug shot” appearance of the photograph had been satisfactorily eliminated, it was not in error in overruling defendant’s objection on the ground stated in the objection.

One of appellant’s assertions of error pertains to a dispute between the parties on the trial as to the extent to which the State could go in cross-examining a witness for the defendant, Philip Haygood, which dispute commenced as follows:

“Q. Now, Philip, you are presently charged, aren’t you, with burglary third degree and theft of property first degree, aren’t you?
“A. Yes, sir.
“MR. RYAN: Your Honor, could I object.
“MR. HOOPER: Your Honor, I would like to offer proof and I have got Waters vs. The State here with me. “THE COURT: Ladies and gentlemen, go to the jury room for just a moment, please.”

Thereupon, a colloquy occurred among the court and the attorneys as to whether defendant’s objection was well taken. The court made it clear that it would sustain defendant’s objection and upon the return of the jury to the courtroom the court said:

“Ladies and Gentlemen, I have sustained the objection that was made prior to your leaving the room. You are to disregard the question that was asked and any answer that was given. Is there any member of the jury panel who cannot do so?”

The transcript shows that there was no response to the question asked the jury. As the action of the court was in favor of defendant, there is no merit in appellant’s present contention that the “trial court erred in allowing the State to question a defense witness about whether or not he had been charged with burglary and theft when the charges against the witness were unrelated to Appellant’s case.”

Appellant presents a more difficult question by urging that the “cumulative effect of the various statements, arguments, and questions of the prosecutor [including the one just considered above] created a prejudicial atmosphere in the trial of Appellant” that requires a reversal. Included in the

basis for this contention is the following additional part of the State’s cross-examination of the witness Philip Haygood:

“Q. All right, and have you seen him [defendant] up in the jail?
“A. Yeah, I have seen him up there.
“Q. When did you last see him?
“A. Today.
“Q. Are you both up there?
“A. Sir?
“MR. RYAN: I object.
“Q. Are you both up in the jail?
“MR. RYAN: I object, Your Honor.
“THE COURT: Overrule.
“Q. Are you both up in the jail, please sir?
“A. Yes, sir.
“Q. Philip, I will ask you again, please, sir, whether or not are you presently charged with an offense—
“MR. RYAN: Your Honor, I object and move to exclude it.
“MR. HOOPER: Your Honor, I think that the State has shown sufficiently that this witness could be biased and could be prejudiced against the State in his testimony and that he would have an ax to grind against the State, that he would be biased for the Defendant.
“MR. RYAN: Your Honor, may we approach the Bench?
“THE COURT: Overrule.
“MR. HOOPER: No further questions.”

We do not approve the unfinished question by State’s counsel, “Philip, I will ask you again, please, sir, whether or not are you presently charged with an offense —.” It appears that the State was thereby attempting to introduce previous criminal charges, not convictions, against the witness of crimes involving moral turpitude, which is not admissible, and as to which the court had made a definite ruling against the State. Nevertheless, the imposition of an objection by defendant’s counsel before the question had been completed hinders us from assaying with reasonable certainty whether the incomplete question or the intended question was an intentional effort to introduce evidence contrary to the clear previous ruling of the court. Furthermore, the ruling of the court on the. question at the time and the position of the parties are somewhat veiled in what appears to have been a probable overlapping of expression by one or more of them upon what one of the others was saying at the time and that understandably the court reporter could not reproduce the overlapped words. This is underscored by the apparent withdrawal of the incomplete question to which the objection was made, defendant’s motion “to exclude it” when no answer is shown, and the appearance of the ruling of the court immediately after the question by defendant’s counsel, “Your Honor, may we approach the Bench?” That defendant could hardly have been prejudiced by what is shown by the excerpt of the transcript under present consideration is to be noted by the fact that the witness had already testified on cross-examination that he was then an inmate of the jail in which the defendant was then confined, which almost certainly constituted evidence that he was charged with some criminal offense. A portion of the evidence on such cross-examination is as follows:

“Q. All right, and have you seen him up in the jail?
“A. Yeah, I have seen him up there.
“Q. When did you last see him?
“A. Today.
“Q. Are you both up there?
“A. Sir?
“MR. RYAN: I object.
“Q. Are you both up in the jail?
“MR. RYAN: I object, Your Honor.
“THE COURT: Overrule.
“Q. Are you both up in the jail, please sir?
“A. Yes, sir.
“Q. And when did you talk to him up there?
“A. Today, sometimes about one o’clock.
“Q. About one o’clock today?
“A. Yes, sir.
“Q. What did you talk about, Philip?
“A. Nothing in particular, but he told me that I would have to come to court today that I was supposed to be coming to court as a witness or something.
“Q. As a witness or something?
“A. Yes, sir.”

The court was not in error in overruling defendant’s objections as noted in the last quoted part of the cross-examination of the witness. It is clearly within the appropriate sphere of cross-examination to interrogate a witness as to where and when he had talked with an adverse party, and there is no contention to the contrary.

As a part of the basis for appellant’s argument that he is entitled to a reversal by reason of the “cumulative effect” of action by “the prosecutor” that “created a prejudicial atmosphere,” appellant relies upon the following part of the cross-examination of another witness for defendant, Gilbert Stewart:

“Q, How long have you known that your good buddy over here, Michael Anthony Nance, has been charged with this robbery?
“A. Well, I suppose about three or four months.
“Q. Three or four months?
“A. Yes, sir.
“Q. So you just let him languish in jail—
“MR. RYAN, Your Honor, I will object at this point.
“THE COURT: Sustain.
“Q. Well, did you ever contact anybody, any police or anybody to tell them about this wrong man that was up there that was charged with this offense?
“MR. RYAN: Your Honor, I am going to object again to counsel’s improper statement.
“THE COURT: Sustain.
“I was contacted.—
“THE COURT: You need not answer, sir. I sustained the objection.
“A. I was contacted because Michael had indicated that he was with me and they contacted me.
“Q. And when did they contact you?
“A. Well, they contacted me this morning.
“Q. Up until this morning have you told anybody about your-
“MR. RYAN: Your Honor, I am going to object to counsel’s improper statement.
“MR. HOOPER: Well, I ought to be able to cross-examine his witness.
“THE COURT: Excuse me, Mr. Hooper. Do you have an objection?
“MR. RYAN: Yes, sir.
“THE COURT: What is the ground for your objection?
“MR. RYAN: May we approach the Bench, Your Honor?
“THE COURT: Yes, sir, you may.
“(THEREUPON ensued an off the record discussion among the court, counsel for the State and counsel for the Defendant, following which the following proceedings were then had and done.)
“Mr. Stewart, your testimony is that you have not told anybody about this up until this morning, is that correct?
“A. No, I had not.
“MR. HOOPER: All right, no further questions.”

We find no contumacy in the cross-examination just quoted and no ruling of the court adverse to the defendant. It is unrelated to the charge as to the “cumulative effect” of “improper” conduct of the “prosecution.”

Appellant includes also in his contention as to the “cumulative effect” of allegedly improper conduct the following part of the State’s cross-examination of defendant:

“Q. Michael, now we have heard Mr. Gilbert Stewart say that you were over at his house at the time of this alleged robbery. Did you ever tell anybody that?
“A. Yes, sir.
“Q. Who did you tell that to?
“A. I told my lawyer.
“Q. You told your lawyer?
“A. Yes, sir.
“Q. Did you tell the policeman when he arrested you?
“A. He didn’t ask me that when he arrested me.
“Q. Have you told any police officer since the time you were first arrested?
“A. I haven’t talked to any.
“Q. You haven’t talked to any — Didn’t you talk to Jimmy Crumrine?
“A. Yes, sir.
“Q. Here a few weeks ago?
“A. Yes, sir, but he was trying to get me to say that I did rob the place.
“Q. And did you tell him about these alibi witnesses?
“A. He was not representing me.
“Q. So you kept all of that a secret, is that right?
“A. It wasn’t no secret. My attorney knew.
“Q. And yet you just called them up here this morning.
“A. I had planned on calling them up here when I came to court.
“Q. But they were only called this morning, is that correct?
“MR. RYAN: Your Honor, I object again on the same grounds that we stated before.
“THE COURT: Overruled.
“Q. Is that correct that you only called them this morning?
“A. Yes, sir.”

The ruling of the court as shown in the last quoted portion of the transcript was not erroneous. We fail to find any improper conduct in the questions propounded to the witness, and they are not to be considered as properly includable in the contention as to the “cumulative effect” of improper conduct.

As a final basis of appellant’s contention as to the “cumulative effect of the various statements, arguments, and questions of the prosecutor,” appellant cites the following portion of the closing argument for the State:

“MR. RYAN: Your Honor, I object to that statement.
“THE COURT: Well, I sustain.
“MR. RYAN: And for the record, Your Honor, the statement was that he was referring to Mr. Haygood as a jail bird, quote, unquote.
“THE COURT: Well, excuse me, the record will not reflect that he was referring to Mr. Haygood as a jailbird, quote, unquote. There was a reference to Mr. Haygood as a witness and then Mr. Hooper followed that by saying that he could not review the statement of every jailbird that they filed [sic] in here. I sustain objection to that. Ladies and gentlemen, disregard it. Mr. Ryan sit down. Mr. Hooper continue.”

It is to be observed, we think, from the complete picture we have given above as to the incidents forming the basis for appellant’s contention as to the “cumulative” effect of conduct of the “prosecutor” that defendant did not in general fare badly by the rulings of the court as to defendant’s objections. It also should be noted that at no time did defendant request a mistrial. By this we do not mean to imply that there was ever any occasion for the granting of a motion for a mistrial. Our consideration of all the transcript relied upon by appellant as a basis for his contention convinces us that the trial was not “conducted in an atmosphere of such prejudice as to violate Appellant’s rights under the United States Constitution to due process and to a trial by an impartial jury as guaranteed by the Fifth, Sixth, and Fourteenth Amendments” and that “the cumulative effect of the various statements, arguments, and questions of the prosecutor” did not create “a prejudicial atmosphere in the trial of appellant,” as contended by appellant.

When the ease was called for trial at 11:30 A.M. June 15,1981, the day it was set for trial, the following occurred:

“THE COURT: Mr. Nance, Mr. Ryan informs me that you want another lawyer, is that correct?
“MR. NANCE: Yes, sir.
“THE COURT: What is the reason — out loud please.
“MR. NANCE: Had a plea worked out on this case and then it didn’t go through and now we’ve got to go to trial and I don’t think I could be represented right.
“THE COURT: Sir?
“MR. NANCE: I don’t think I would be represented right.
“THE COURT: Mr. Ryan, you are appointed?
“MR. RYAN: Yes, sir.
“THE COURT: How long have you been on the case?
“MR. RYAN: Two and a half weeks. The case had already been docketed for a trial when I was appointed, Judge.
“THE COURT: All right, did you have a previous lawyer?
“MR. NANCE: Yes, sir.
“THE COURT: All right, who was that?
“MR. NANCE: Mr. McDaniel.
“THE COURT: Mr. McDaniel?
“MR. NANCE: Yes, sir.
“THE COURT: And he withdrew from representing you?
“MR. NANCE: Yes, sir.
“THE COURT: I deny your motion.”

The record proper shows that at 2:19 P.M., June 12, 1981, a Friday, a motion for a continuance, signed by defendant’s attorney, was filed, which motion stated:

“Comes now the Defendant and moves this Honorable Court for a continuance of the above-styled cause from Monday, June 15, 1981, and as grounds therefor would show and represent unto the Court that the attorney for the defendant was not appointed to this case until May 25, 1981, at which time the ease was already set down for trial and that said attorney has had inadequate time to prepare for said case and to contact witnesses for the Defendant.”

What was held in Hillyer v. State, Ala.Cr. App., 351 So.2d 646, 647 (1977) is controlling:

“The continuance of a criminal prosecution due to the absence of defense witnesses or on the ground that sufficient time was not allowed to locate such persons, is a matter left to the trial court’s discretion. The exercise of that discretion is revisable only upon positive showing of clear abuse. Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); Clayton v. State, 45 Ala.App. 127, 226 So.2d 671 (1969); Huskey v. State, 129 Ala. 94, 29 So. 838 (1901).”

Applicable here is the following:

“Hence, we consider it unnecessary to go beyond the general rule that a reversal because of the refusal of the trial judge to grant a continuance requires a positive demonstration of abuse of judicial discretion.” Clayton v. State, supra, at 226 So.2d 672.

It cannot be said that, as a matter of law, the time that defendant’s second counsel had to prepare for trial of the case was insufficient. What constitutes sufficient time for the preparation by defendant’s counsel of criminal cases for trial varies greatly in accordance with the circumstances of the particular cases. We would prefer for more light to have been developed on the subject. In the absence thereof, we must conclude that the trial court did not abuse the discretion vested in it and that the denial of defendant’s motion does not constitute reversible error.

The only other issue raised by appellant pertains to a part of the cross-examination of the defendant that we have previously discussed in considering appellant’s contention as to “the cumulative effect of the various statements, arguments, and questions of the prosecutor.” We quoted the particular portion of the cross-examination of the defendant relied upon by appellant in arguing his then considered contention. We think it sufficient now to quote again only the last three or four lines thereof:

“Q. But they were only called this morning, is that correct?
“MR. RYAN: Your Honor, I object again on the same grounds that we stated before.
“THE COURT: Overruled.”

We now quote for the first time the part of the cross-examination of defendant that immediately followed that which we have just quoted above:

“Q. Is that correct that you only called them this morning?
“A. Yes, sir.”

It is to be noted that the question to which the objection was made was never answered. Although there seems to be little difference between the question that was substituted for the one to which an objection was made, it was incumbent upon defendant to object to the question that was answered in order to challenge successfully the introduction in evidence of the answer of the witness to the question that was substituted for the question to which no answer was given.

We find no error in the record prejudicial to 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 except TYSON, J., who dissents without an opinion.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Vincin DAVIS v. STATE.
    3 Div. 427.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Rehearing Denied April 20, 1982.

      Maurice S. Bell, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged in three indictments with the sale of marijuana. A fourth indictment charged possession of marijuana. Sentence was 15 years’ imprisonment in each case. Three issues are raised on appeal.

I

The defendant waived a jury trial. After trial, the trial judge took the case under advisement and six days later rendered his verdict in the form of a written order filed with the Circuit Clerk.

It is undisputed that there was no finding of guilt made in open court and that neither the defendant nor his counsel was present when the trial judge adjudged the defendant guilty. The defendant was sentenced in open court and his attorney was present. The defendant argues that he had a right to be present when the verdict was rendered. He further argues that a violation of that right amounts to an acquittal under Lee v. State, 31 Ala.App. 91, 13 So.2d 583, cert. denied, 244 Ala. 401, 13 So.2d 590 (1943), and that he must be discharged because of former jeopardy. Huffman v. State, 35 Ala.App. 607, 51 So.2d 266 (1951).

On December 28, 1981, the trial court entered the following order in response to the defendant’s motion to correct the record:

“The court found defendant guilty by written Order dated June 17, 1981, without the defendant’s and counsel’s presence, and said Order was filed in the Office of the Circuit Clerk of Montgomery County, Alabama.
“The offer of the court for finding of guilt in open court in the presence of the defendant and his counsel, if jurisdiction exists , was refused by defendant’s counsel.”

“There is of course no controversy but that, unless his presence is waived, a verdict received in the absence of a defendant is void, and is the equivalent to an acquittal.” Lee v. State, 244 Ala. 401, 403, 13 So.2d 590 (1943). Almost universally recognized in our jurisprudence is the ancient and closely guarded right of the defendant in a felony case to be present when the jury renders its verdict. Anno., 23 A.L. R.2d 456 (1952). However, every Alabama case we have reviewed involved the defendant’s right to be present when the jury returned its verdict. For example, Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955); Cobb v. State, 250 Ala. 496, 35 So.2d 86 (1948); Lee v. State, 244 Ala. 401, 13 So.2d 590 (1943); Harris v. State, 153 Ala. 19, 49 So. 458 (1907); Dix v. State, 147 Ala. 70, 41 So. 924 (1906); Wells v. State, 147 Ala. 140, 41 So. 630 (1906); Cook v. State, 60 Ala. 39 (1877); Waller v. State, 40 Ala. 325 (1867); Brister v. State, 26 Ala. 107 (1855); State v. Hughes, 2 Ala. 102 (1841); Huffman v. State, 35 Ala.App. 607, 51 So.2d 266 (1951). It is clear from these cases that had the defendant been absent when the jury returned its verdict, that verdict would have been void and the defendant entitled to discharge and acquittal.

We also note that the judgment entered by the trial court did not comply with Rule 8(a), Alabama Rules of Criminal Procedure-Temporary Rules (effective February 23, 1980), providing that “(j)udgment shall be pronounced in open court.” The definition of the term “judgment” includes “the adjudication of the court based ... upon its own finding following a nonjury trial, of the defendant’s guilt or innocence.” Rule 1(a), A.R.C.P.

We have searched, but have been unable to find a case in this state wherein the defendant waived a jury trial and was absent when the trial judge pronounced or returned his verdict and judgment.

However, in Bailey v. State, 419 A.2d 925 (Del.Supr.1980), the Supreme Court of Delaware was faced with the same issue. That court held that the defendant’s absence constituted harmless error in a nonjury trial despite the fact that in an earlier case the court had found the harmless error rule unsuitable in the context of absence from the return of a verdict by the jury. In Shaw v. State, 282 A.2d 608 (Del.Supr.1971), the court had found that the right of a defendant to be present at the return of the verdict by the jury in a felony case is “so fundamental that it exists unless waived even though no actual prejudice may be provable.” The right is “so substantial” as to make inapposite harmless error. Shaw, 282 A.2d at 610. “(T)he ancient right of presence is so fundamental as to permit of no judge-made exception based upon the existence or nonexistence of provable prejudice.” Shaw, 282 A.2d at 611.

In Bailey, the court distinguished Shaw where the defendant had been tried by a jury.

“Further, our decision that the error in Shaw could not be deemed harmless, despite a failure to show prejudice, was made in the context of the defendant’s right to be present when the verdict was rendered by a jury. Clearly, a criminal defendant has an interest and right to be present during a non-jury trial when his ‘absence could, under some set of circumstances, be harmful.’ Polizzi v. United States, 9th Cir., 550 F.2d 1133, 1138 (1976). See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In addition, where the verdict is rendered by a letter opinion in a non-jury trial, the defendant’s interest in being present at that time is not so great that the Superior Court Criminal Rule 52 harmless standard could not be applied. See, Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 709 (1967).
“Even if Rule 43 required the defendant’s presence in this case, ‘actual prejudice should be conceivable before the presumption of prejudice (could) prevails .. .. ’ Jacobs v. State, Del.Supr., 418 A.2d 988, 989 (1980). We cannot think of any manner in which the defendant in this case could have been prejudiced, nor does the defendant allege that the return of the verdict by letter opinion without his presence prejudiced his case. In addition, in a non-jury trial, we can think of no purpose to be served by having a defendant, already in custody, taken to court for the sole purpose of having a letter opinion verdict read to him.” Bailey, 419 A.2d at 927.

In State v. Koker, 20 Ariz.App. 385, 513 P.2d 674 (1973), the court found that the state rules of criminal procedure required “the physical presence of a defendant before the court, in the jury waiver situation, when the verdict is rendered or pronounced by the court.” Koker, 513 P.2d at 677. Although the defendant’s absence violated this rule, the court found that a reversal was not required but vacated the judgment and remanded the matter “for compliance with the rule and resentencing.” Koker, supra.

In State v. Cruz, 27 Ariz.App. 44, 550 P.2d 1086 (1976), the Arizona Court of Appeals held that there was no need to remand a case for proper sentencing where the trial court stated its finding of guilt in the defendant’s presence at sentencing.

“While the failure of the defendant to be present at the time the ‘verdict’ was rendered may constitute technical error, and in the case of a jury trial, with the attendant rights to poll the jury this error may be reversible, we fail to find any prejudice resulting to the defendant in this case. Unlike a jury trial, no right exists to poll the trial judge upon his determination of guilt. Moreover, the beneficial psychological effect of having the accused see the trier of fact and vice versa when the pronouncement of the verdict is made, was accomplished in this case when the trial judge entered judgment on his prior determination of guilt in the defendant’s presence at the time of sentencing. We are thus unable to see how the defendant was prejudiced by his non-presence at the court’s first determination of guilt and find nothing would be gained by remanding for the purpose of again having the verdict read to the defendant to comply with the Rule.
“We are not unmindful in reaching this decision, of State v. deAnda, 9 Ariz.App. 134, 449 P.2d 971 (1969), and State v. Koker, supra. However, in both of these cases where presence of the defendant at time of verdict was involved, there is no indication that the court ever stated its finding of guilt in the defendant’s presence, as was done in this case at time of sentencing. Moreover, in Koker, this error did not result in reversal, but merely remand for determination of guilt with defendant present. As previously indicated, this has already occurred in this case and remand would accomplish nothing.” Cruz, 27 Ariz.App. at 46, 550 P.2d 1086.

Here, before sentencing the defendant, the trial judge announced: “After a non-jury trial, I found Mr. Davis guilty of the offenses charged in those cases, and Mr. Davis was set for sentencing today. Mr. Davis, do you have anything to say why sentence should not be passed in those cases?”

Throughout the proceedings below and before this Court, the defendant has alleged no prejudice as a result of his absence. Indeed, under the circumstances of this case it is difficult to imagine any.

In Neal v. State, 257 Ala. 496, 59 So.2d 797 (1952), the Supreme Court of Alabama was not willing to deprive the defendant of his constitutional right to be present when the verdict of the jury was returned against him by a recital in the judgment entry showing the defendant present when the facts as shown by the record revealed that he was not present. The court noted: “Substance and not form should control in a situation of this kind where constitutional rights are involved.” Neal, 257 Ala. at 497, 59 So.2d 797. Brister, supra, also supplies some authority for applying harmless error in this case.

Accordingly, we hold that the technical error committed in this case resulted in no prejudice to the defendant.

Additionally, we have thoroughly searched the record and supplemental record in this case and have found no objection to the action now made the subject of this issue. At the hearing on the motion to correct the record, defense counsel did object to the offer of the trial judge to resen-tence the defendant in open court upon remand by this Court. There was no motion to discharge, motion in arrest of judgment or motion for new trial filed in the trial court. As was observed in Harris v. State, 153 Ala. 19, 21, 49 So. 458 (1967): “It will be noted that-there was no motion for the discharge of the prisoner in that case (State v. Hughes, 2 Ala. 102 (1841)), ... so that the matter of the rendition of the judgment in the absence of the prisoner was really not in the case.”

II

Under Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), we find that the defendant did not have standing to contest the search of the automobile where there was no showing of expectation of privacy or interest in the vehicle. There was no separate hearing on the issue of the search and seizure and after the State had rested its case defense counsel moved to exclude the evidence “as there is no connection between him (the defendant) and the contents of that automobile other than he was sitting on the car, and further it was not determined whether that car was his, or not. He wasn’t inside the car.”

There is also some evidence that the defendant attempted to flee and abandon the automobile. Collier v. State, 413 So.2d 396 (Ala.Cr.App., 1 Div. 189, 1981); Hodges v. State, 49 Ala.App. 1, 267 So.2d 798 (1972).

III

Finally, the defendant argues that his motion for psychological evaluation at Bryce State Hospital was due to be granted.

On January 29, 1981, District Court Judge Joseph N. Poole, acting as a Circuit Court Judge granted the defendant’s “oral motion in open court for a psychological evaluation.” This oral motion was made in open court on the day the case was set for trial.

The defendant was not sent to Bryce’s but was examined, at the request of the trial judge, by the associate clinical director of the Montgomery Area Mental Health Authority.

The findings and statements made by the trial judge on the hearing of the motion to correct the record clarify this issue.

“THE COURT: (A)t the date and time that the request was made in open court, that it was the practice of this Court to refer all such requests to the Montgomery Mental Health Authority, which was subsequently done. And it appears to me that Judge Poole, although being very knowledgeable about the affairs of this Court, was not aware that that was our practice at that time, and that it was subsequently done, and the Montgomery Area Mental Health Authority upon their evaluation recommended that the Defendant not be transferred to Bryce for evaluation.”
# sfc j}: s}: ¡‡:
“THE COURT: Let the Record further reflect that it has been the practice of this Court since January of this year, or maybe late December of 1980, that the Court’s interpretation of the law is that any criminal defendant may request an evaluation by Bryce Institute. And if the Court finds that there is good cause to grant such a request, it may grant it. That in an effort for this to assist this Court in determining whether there was good cause for such a request, the Court enlisted the services of the Montgomery Area Mental Health Authority so that they could conduct the initial evaluation and inform the Court whether in their opinion there was good cause for granting of such a request. Those requests with the Montgomery Area Mental Health Authority, being more competent than the Court as a layman to determine whether a person is in need of psychological evaluation, where they recommend that they not be transferred to Bryce, generally the Court so orders it and the Defendant will not be transferred for further evaluation.”

Immediately before trial, the trial judge found that the defendant “very clearly understands the consequences” of his case, that “after talking with Mr. Davis (the defendant) in this case, I concur that mental evaluation is not required” and that the defendant “understands perfectly well what is going on.”

We find no error in the action of the trial judge in refusing to order further investigation into the defendant’s competency to stand trial. There is nothing in the record to create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial. Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978).

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . The defendant was adjudged guilty on June 17, 1981. There was no motion for new trial. The circuit court lost jurisdiction on July 17, 1981. Alabama Code 1975, Section 12-22-133.

      . At the hearing on the motion to correct the record the trial judge stated: “It is satisfactory with this Court for the Attorney General to suggest to that Court (of Criminal Appeals) that the case be remanded for proper finding of guilt and sentencing in this case.” Defense counsel’s response was: “I object to him having to come down here for resentencing, but that is something between you and the Attorney General. I’m just concerned primarily now with correcting the Record to reflect again that the Defendant was not physically present where a guilty verdict was rendered, nor was I present.”


author: PER CURIAM.

text:
    Ex parte Vincin DAVIS. (In re: Vincin Davis v. State of Alabama).
    81-628.
    Supreme Court of Alabama.
    June 25, 1982.
    Maurice S. Bell, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   PER CURIAM.

Writ Ala.Cr.App., 416 So.2d 444 denied on the ground that Defendant waived the right to a rehearing for pronouncement of sentence.

WRIT DENIED.

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


author: ADKINS, Justice.

text:
    William D. CHRISTOPHER, Defendant, v. STATE of Florida, Appellee.
    No. 62183.
    Supreme Court of Florida.
    June 23, 1982.

      Michael R. N. McDonnell, Naples, for appellant.
    Jim Smith, Atty. Gen. and William E. Taylor, Asst. Atty. Gen., Tampa, for appel-lee.
   ADKINS, Justice.

We have for review an order denying a motion to vacate, set aside, or correct sentence. Defendant has also filed a motion for leave to amend pleadings and for remand, a petition for writ of error eoram nobis and a motion for stay of execution. We have jurisdiction. Art. V., § 3(b)(1), Fla.Const.1981.

Defendant, William D. Christopher, was convicted and sentenced to death for the murders of his daughter’s adoptive mother and the mother’s boyfriend. This Court affirmed both the conviction and the sentence. See Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, - U.S. -, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Defendant then filed, pursuant to Rule 3.850, Florida Rules of Criminal Procedure, a motion to vacate, set aside or correct sentence. The motion, filed in the circuit court of Collier County, alleged eight grounds for relief. It was denied, and this appeal followed. We consider the issues in the order in which they are raised.

Defendant first claims that he was denied the opportunity to submit to psychological and psychiatric examinations which would have determined whether he was competent to stand trial and whether he was insane at the time of the offenses. In its order denying appellant’s motion to vacate, set aside, or correct sentence, the trial court properly classified this as an issue which could have been, should have been, or was raised on direct appeal. It is not a matter which may be considered in a post-conviction relief proceeding. Goode v. State, 403 So.2d 931 (Fla.1981.)

Before the first trial (which resulted in a mistrial) as well as before the second trial, defendant filed a motion requesting appointments of psychiatrists for the purpose of examining defendant and determining his mental competency. Appropriate orders were entered. On each occasion the defendant refused to see the psychiatrist appointed to examine him so no reports were issued. The question arises as to whether it was necessary for the trial judge to have a hearing to determine the competency of defendant to stand trial, i.e., (1) whether the defendant had a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and (2) whether he had a rational as well as a factual understanding of the proceedings against him. See Lane v. State, 388 So.2d 1022 (Fla.1980). The trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency set forth in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). In the case sub judice there is nothing in the record which makes it appear reasonably necessary to inquire into the competency of the defendant to stand trial. Therefore, the trial court did not have any responsibility to conduct a hearing for this purpose. By refusing to be examined by the psychiatrist, defendant waived the defense of insanity. Parkin v. State, 238 So.2d 817, 821 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971).

Defendant next contends that in light of the circumstances of this case and the sentences imposed in comparable situations, the sentence here ordered is disproportionate, excessive and unwarranted. Execution of the sentence, he argues, would violate the state and federal constitutions because it was “imposed pursuant to a pattern and practice of arbitrary and capricious capital sentencing.” This issue, like the first, is one that could have been raised on appeal, and it may not be considered in a rule 3.850 proceeding.

The third claim made is that the sentence imposed is inappropriate, improper, illegal, cruel, and unusual because his polygraph examination “reveals strong doubt as to the guilt or extent of complicity” of appellant. Again, such an issue is one which should have been raised on direct appeal and we will not consider it in this proceeding.

Defendant next contends that this Court violated his due process rights by receiving and considering in his initial appeal psychological reports on him which were not a part of the record. In its order denying defendant’s motion to vacate, set aside or correct sentence, the trial court correctly held that it has no jurisdiction to review the action of the Florida Supreme Court on a 3.850 motion. This is not a valid ground for relief. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

The fifth claim in defendant’s motion is that his constitutional rights were violated by the trial court’s refusal to permit the introduction into evidence of the results of his polygraph test. We addressed this issue on defendant’s direct appeal and it may not be reviewed a second time in this proceeding.

Defendant’s assertion that the death warrant signed by the Governor of Florida was not properly processed and thus is invalid is not an issue cognizable in a 3.850 proceeding. Motions for post-eonvietion relief are for the purpose of contesting the validity of a judgment or sentence, not the procedural aspects of a death warrant. However, we treat this claim as a petition for habeas corpus and find the death warrant to be legally sufficient.

The seventh claim in defendant’s motion is that he was denied the right to a fair and impartial jury chosen from a cross section of the community. More specifically, he contends that the precepts of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), were violated by the excusal of certain persons from service on the jury at his trial. Like several of the preceding issues, this is a matter which should have been raised on direct appeal and we may not consider it now.

Finally, defendant argues that he was denied the effective assistance of counsel guaranteed by the constitutions of Florida and the United States. In his motion, defendant provides nine “facts” which he contends demonstrate that he was inadequately represented and that an evidentiary hearing is warranted. We disagree.

In Knight v. State, 394 So.2d 997 (Fla.1981), we adopted the following standards for determining whether an attorney has provided reasonably effective assistance of counsel:

First, the specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
Second, the defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. As was explained by Judge Leventhal in [United States v. DeCoster, D.C.App., 624 F.2d 196] DeCoster III: “To be ‘below average’ is not enough, for that is self evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.” 624 F.2d at 215. We recognize that in applying this standard, death penalty cases are different, arid consequently the performances of counsel must be judged in light of these circumstances.
Third, the defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error. This requirement that a defendant has the burden to show prejudice is the rule in the majority of other jurisdictions.
Fourth, in the event a defendant does show a substantial deficiency and presents a prima facie showing of prejudice, the state still has an opportunity to rebut these assertions by showing beyond a reasonable doubt that there was no prejudice in fact. This opportunity to rebut applies even if a constitutional violation has been established.

Id. at 1001 (note omitted). When the standards established in Knight are applied to defendant’s allegations, it is clear that those allegations do not warrant an evidentiary hearing. We do not believe that the second or third requirements of Knight have been met.

We now consider defendant’s motion for leave to amend pleadings and for remand, which alleges a violation of his due process rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant has submitted a sworn statement in which a Mr. Daniel R. Sizemore states that while cleaning up the scene of the murders, he found a tape recording on which defendant’s daughter expressed extreme hatred for one of the victims. Mr. Sizemore further claims that he notified someone at the Collier County Sheriff’s Department of the tape and then left it with his employer’s secretary with directions to give it to whoever came from the sheriff’s office to pick it up. Mr. Size-more states that the tape was picked up, and that when there was never any mention of it in press reports of defendant’s trial and appeal, he decided to contact defense counsel and give the statement.

Defendant claims that the tape in question would be material evidence with regard to his daughter's motive and state of mind, both of which he contends were issues in these proceedings. Because he requested all exculpatory evidence available to the prosecution and because the tape was “suppressed by the prosecution and never made available to the defense,” defendant contends that his due process rights were violated. See Brady v. Maryland. We disagree.

Two factors convince us that there are not grounds sufficient to allege a Brady violation and that this cause need not be remanded on those grounds. First, there is absolutely no evidence or allegation that the prosecution ever received or was aware of the tape recording. Mr. Sizemore simply states that he left it with the secretary and that someone picked it up. His testimony can hardly be considered proof that the prosecutor had the information which was allegedly suppressed.

Also influencing our decision is the cumulative nature of the material which Mr. Sizemore claims was on the tape. There was testimony at trial which tended to show defendant’s daughter’s dislike of her adoptive mother’s boyfriend. If the tape was found and a new trial was ordered so that it could be introduced, we doubt that it would add anything to what was considered at the first trial. It would simply be cumulative evidence. Because of the tape’s cumulative nature and the lack of any evidence that the prosecution was ever even aware of its existence, we deny defendant’s request that the cause be remanded to the trial court for a hearing to determine whether there was a Brady violation.

Finally, we consider defendant’s request for permission to apply to the trial court for writ of error coram nobis. Defendant bases his request upon a statement made by his mother, Mary Still, in which she claims that his daughter, Norma Sands, admitted committing the crimes of which defendant was convicted. According to Mrs. Still, Norma told her that she, Norma, shot both victims and that defendant only learned of the murders after they had been committed.

Defendant contends that the facts in Mrs. Still’s statement were first disclosed in a letter written to the trial judge after defendant’s trial was over, that Norma’s confession is more consistent with the known facts than is the theory upon which defendant was convicted, and that Mrs. Still’s statement, if proven true, would exonerate defendant. In light of the foregoing, argues defendant, this Court should grant him permission to apply for a writ of error coram nobis. We disagree.

In Dobbert v. State, 414 So.2d 518, Fla., 1982, we made the following observation regarding the requirements which must be met by a defendant who seeks coram nobis relief:

One important prerequisite which must be demonstrated before an appellate court will grant leave to proceed in the trial court is that the facts alleged must not have been known by the court, by the party, or by his counsel at the time of trial. It must also be made clear that defendant or his counsel could not have discovered them through the use of due diligence.

Id, at 520.

It appears that defendant and his counsel did know, at the time of trial, the gist of Mrs. Still’s statement. In his main brief, defendant claimed that his daughter had admitted her guilt and had described her complicity in the crimes. He then states that “[t]his fact was known to trial counsel but he never attempted to bring forth such evidence either in the guilt phase or the sentencing phase of the trial.” Even if we did not have that statement from the brief to demonstrate defendant’s and his trial counsel’s awareness of Mrs. Still’s opinion, we would still refuse permission for the petition on the basis that the information could have been discovered by the exercise of due diligence. Mrs. Still testified at the first trial which resulted in a mistrial, and Norma testified at both trials. Each could have been questioned at that time regarding Norma’s complicity.

Having reviewed each of the claims raised by defendant, the trial court’s denial of his motion for post-conviction relief, is affirmed, defendant’s motion for leave to amend pleadings and for remand is denied, and his request for permission to apply to the trial court for writ of error coram nobis is denied. The motion for stay of execution is denied. A petition for rehearing will not be considered.

It is so ordered.

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


author: BOYD, Justice.

text:
    DEPARTMENT OF EDUCATION, State Board of Education, Ralph D. Turlington, as Commissioner of Education and as citizen and taxpayer, and Talbot D’Alemberte, a citizen and taxpayer, Appellants, v. Gerald A. LEWIS, Comptroller, and George Firestone, Secretary of State, Appellees.
    No. 61241.
    Supreme Court of Florida.
    July 15, 1982.

      James D. Little, Gen. Counsel, and Judith A. Brechner, Deputy Gen. Counsel, State Bd. of Educ., and Chesterfield Smith and John Radey of Holland & Knight, Tallahassee, for Dept, of Educ., State Bd. of Educ. and Ralph D. Turlington.
    Talbot D’Alemberte and Thomas R. Julin of Steel, Hector & Davis, Miami, for Talbot D’Alemberte.
    Michael J. Coniglio, Deputy Comptroller and Michael Basile, Gen. Counsel, Office of the Comptroller, Tallahassee, for Gerald A. Lewis.
    Jim Smith, Atty. Gen., and Mitchell D. Franks and Thomas R. Tedcastle, Asst. At-tys. Gen., Tallahassee, for George Firestone.
    Steven G. Wenzel, Vice President for Employee Relations and Legal Affairs, Tampa, and W. Reece Smith, Jr., Sylvia H. Walbolt and Mark A. Brown of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for John Lott Brown, President of the University of South Florida and Daniel R. Wal-bolt, as Vice President of Student Affairs of the University of South Florida, amicus curiae.
   BOYD, Justice.

This case is here on the certification of the District Court of Appeal, First District, that the trial court judgment appealed to that court is of great public importance and requires immediate resolution by the Supreme Court. We have jurisdiction under article V, section 3(b)(5), Florida Constitution.

House Bill No. 30-B was the general appropriations bill adopted by the 1981 Legislature and became law as chapter 81-206, Laws of Florida. The appropriations for the Department of Education and the Commissioner of Education were prefaced by the following proviso:

No funds appropriated herein shall be used to finance any state-supported public or private postsecondary educational institution that charters or gives official recognition or knowingly gives assistance to or provides meeting facilities for any group or organization that recommends or advocates sexual relations between persons not married to each other.
Sexual relations means contact with sexual organs of one person by the body of another person for sexual gratification. Any postsecondary educational institution found in violation of this provision shall have all state funds withheld until that institution is again in compliance with the law.
No state financial aid shall be given to students enrolled at any postsecondary educational institution located in Florida which is in violation of this provision.

Ch. 81-206, § 1, Laws of Fla.

The Florida Department of Education, the State Board of Education, and Commissioner of Education Ralph D. Turlington filed a complaint seeking a declaratory judgment that the above-quoted proviso is unconstitutional and void. Named as defendants were Comptroller Gerald Lewis and Secretary of State George Firestone. The complainants challenged the constitutionality of the proviso under article III, section 12 of the Florida Constitution as well as under freedom of expression principles embodied in the Florida and United States Constitutions.

Talbot D’Alemberte, a trustee of Miami-Dade Community College, filed a motion to intervene as a party plaintiff. The trial court granted the motion based on D’Alem-berte’s status as a citizen and taxpayer. The defendants in their answers to the complaint questioned the standing of the Department of Education, the State Board of Education, and Turlington in his official capacity as Commissioner of Education, to bring the suit. After declining to dismiss these plaintiffs, the trial court granted judgment for the defendants and upheld the proviso against all contentions of invalidity.

Before reaching the merits of the case, we must resolve the question of standing to sue.

In the court below, the appellees challenged the appellants’ standing to seek a determination that the proviso is unconstitutional. While we find the individual appellants to have such standing as ordinary citizens and taxpayers, they have no standing in their official capacities. State officers and agencies must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise. Barr v. Watts, 70 So.2d 347 (Fla.1953); City of Pensacola v. King, 47 So.2d 317 (Fla.1950); State ex rel. Watson v. Kirkman, 158 Fla. 11, 27 So.2d 610 (1946); State ex rel. Atlantic Coast Line R.R. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). In such a situation, the public officer or agency does not have a sufficiently substantial interest or special injury to allow the court to hear the challenge.

If, on the other hand, the operation of a statute is brought into issue in litigation brought by another against a state agency or officer, the agency or officer may defensively raise the question of the law’s constitutionality. City of Pensacola v. King, 47 So.2d 317 (Fla.1950); State ex rel. Harrell v. Cone, 130 Fla. 158,177 So. 854 (1937); State ex rel. Florida Portland Cement Co. v. Hale, 129 Fla. 588, 176 So. 577 (1937). The comptroller is one officer that has been allowed by Florida courts to initiate litigation in his official capacity seeking to establish the unconstitutionality of a statute. See Dickinson v. Stone, 251 So.2d 268 (Fla.1971); Green v. City of Pensacola, 108 So.2d 897 (Fla. 1st DCA 1959), aff’d, 126 So.2d 566 (Fla.1961). It has also been recognized that the attorney general may, in limited circumstances, initiate litigation to challenge the constitutionality of legislation. See Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823 (1934); State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). The comptroller, as the state’s chief officer for disbursement of funds, would have standing to challenge a proviso in an appropriations bill. But the Department of Education, the State Board of Education, and the Commissioner of Education in his official capacity, do not.

As ordinary citizens and taxpayers, however, appellants Turlington and D’Alem-berte have standing to challenge the constitutionality of the proviso. In making their challenge, the appellants invoke two constitutional prohibitions: article III, section 12, Florida Constitution, governing appropriations acts; and the state and federal constitutional prohibition against state action abridging the freedoms of speech and association. Both challenges relate to the power of the legislature to tax and spend for the general welfare of the state as embodied in the appropriations bill. The proviso is challenged as an abuse of appropriations process and as an invalid directive to the postsecondary school administrators of the state concerning the spending of state funds. Therefore, appellants as taxpayers have standing to challenge the constitutionality of the proviso. Brown v. Firestone, 382 So.2d 654 (Fla.1980); Department of Administration v. Horne, 269 So,2d 659 (Fla.1972); Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205 (1917). Cf. Flast v, Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (federal taxpayers had standing to challenge statute alleged to exceed specific constitutional limits on the taxing and spending power).

With both the appropriations act restriction issue and the freedom of expression issue properly presented by proper parties, we now turn to the merits.

Article III, section 12, Florida Constitution, provides:

Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.

This provision is a corollary of article III, section 6, which requires that all laws be limited to a single subject and matters properly related to that subject. Brown v. Firestone, 382 So.2d 654 (Fla.1980). An extensive body of constitutional law teaches that the purpose of article III, section 6 is to ensure that every proposed enactment is considered with deliberation and on its own merits. A lawmaker must not be placed in the position of having to accept a repugnant provision in order to achieve adoption of a desired one. See, e.g., Santos v. State, 380 So.2d 1284 (Fla.1980); State v. Lee, 356 So.2d 276 (Fla.1978); King Kole, Inc. v. Bryant, 178 So.2d 2 (Fla.1965); Lee v. Bigby Electric Co., 136 Fla. 305, 186 So. 505 (1939); State ex rel. Grodin v. Barns, 119 Fla. 405, 161 So. 568 (1935); Ex parte Sarros, 116 Fla. 86, 156 So. 396 (1934); McConville v. Ft. Pierce Bank & Trust Co., 101 Fla. 727, 135 So. 392 (1931); Colonial Investment Co. v. Nolan, 100 Fla. 1349, 131 So. 178 (1930); State ex rel. Crump v. Sullivan, 99 Fla. 1070, 128 So. 478 (1930).

Through a number of cases decided over many years this Court has attempted to make clear to the Legislature that under our constitutional plan for the lawful exercise of governmental powers an appropriations act is not the proper place for the enactment of general public policies on matters other than appropriations. Brown v. Firestone, 382 So.2d 654 (Fla.1980); Thomas v. Askew, 270 So.2d 707 (Fla.1972); Department of Administration v. Horne, 269 So.2d 659 (Fla.1972); Dickinson v. Stone, 251 So.2d 268 (Fla.1971); In re Advisory Opinion to the Governor, 239 So.2d 1 (Fla.1970); Green v. Rawls, 122 So.2d 10 (Fla.1960); Lee v. Dowda, 155 Fla. 68, 19 So.2d 570 (1944); Amos v. Moseley, 74 Fla. 555, 77 So. 619 (1918). In Brown v. Firestone, the Court said:

The enactment of laws providing for general appropriations involves different considerations and indeed different procedures than does the enactment of laws on other subjects. Our state constitution demands that each bill dealing with substantive matters be scrutinized separately through a comprehensive process which will ensure that all considerations prompting legislative action are fully aired. Provisions on substantive topics should not be ensconced in an appropriations bill in order to logroll or to circumvent the legislative process normally applicable to such action. Similarly, general appropriations bills should not be cluttered with extraneous matters which might cloud the legislative mind when it should be focused solely upon appropriations matters.

382 So.2d at 664.

The opinion in Brown v. Firestone went on to establish two principles by which to test restrictions and provisos in appropriations bills to determine whether they violate article III, section 12. First, if a provision in an appropriations bill changes existing law on any subject other than appropriations, it is invalid. Second, a qualification or restriction must directly and rationally relate to the purpose of the appropriation to which it applies. The opinion elaborated on this second principle as follows:

That is to say, has the legislature in the appropriations process determined that the appropriation is worthwhile or advisable only if contingent upon a certain event or fact, or is the qualification or restriction being used merely as a device to further a legislative objective unrelated to the fund appropriated? This test possesses the dispositive virtue of permitting the legislature reasonably to direct appropriation use without hampering the gubernatorial veto power or abusing the legislative process.

382 So.2d at 664.

We now proceed to an analysis of the proviso according to the above-discussed principles. The portion or portions of chapter 81-206 to which the proviso, by its terms, logically relates includes all state funds to be expended on postsecondary education or granted to postsecondary educational institutions or students. The proviso directs that funds appropriated to such purposes shall be withheld from institutions in violation of the proviso and from students attending institutions that are in violation of the proviso. In order to avoid having state funds withheld, a postsecondary institution is required by the proviso to refrain from chartering, giving official recognition to, knowingly giving assistance to, or providing meeting facilities to, any group or organization that engages in a certain variety of expression or communication as broadly defined in the proviso. The proviso attempts to make substantive policy on the governance of postsecondary educational institutions. Thus it amends a whole host of statutes pertaining to the operation of public colleges and universities and the regulation of private colleges and universities. By effecting such a de facto amendment of existing substantive law, the proviso violates the first principle announced in Brown v. Firestone.

One of the qualifications at issue in Brown v. Firestone was a requirement that the inmate count at a particular prison be phased back to design capacity. The restriction was connected to the appropriation for salaries, expenses, and capital outlay for major institutions of the state prison system. We held that the restriction was not rationally related to the funding of the state’s correctional institutions but rather was “designed to further a legislative objective ... unrelated to the funding of all the major institutions.” 382 So.2d at 669.

Applying the second of the principles announced in Brown v. Firestone, we reach a similar conclusion in the present case. The proviso is not directly and rationally related to the appropriation of state funds to post-secondary institutions and students. It is, rather, designed to further a legislative objective unrelated to such funding.

Brown v. Firestone, decided over a year and a half ago, announced a new and useful formulation of principles, but the principles themselves were by no means new. They have been part of Florida constitutional law for decades. In Brown v. Firestone, some of the questions were close ones. In this case the question is clear-cut. We are simply following constitutional construction well known in Florida legal and governmental circles. We hold that the proviso violates article III, section 12.

Appellants also contend that the proviso violates constitutional guarantees of freedom of speech and association under the United States and Florida Constitutions. Under the First Amendment to the United States Constitution, the United States government is prohibited from abridging the freedom of speech. Under the Fourteenth Amendment, the same prohibition is applicable to state governments. Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). Freedom of association is also recognized as flowing from the First Amendment and comes within its protection. Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Freedom of speech is also guaranteed under article I, section 4 of the Florida Constitution. The scope of the protection accorded to freedom of expression in Florida under article I, section 4 is the same as is required under the First Amendment. See Florida Canners Association v. State Department of Citrus, 371 So.2d 503 (Fla. 2d DCA 1979). This Court has no authority to limit the constitutional protection and must apply the principles of freedom of expression as announced in the decisions of the Supreme Court of the United States.

The right of persons to express themselves freely is not limited to statements of views that are acceptable to the majority of people. If it were to be held that freedom of expression applies only to views that the national, state, or local community finds to be within the range of reasonable discourse, the First Amendment would have little meaning or purpose. Democratic governments seldom seek to suppress speech that the community finds acceptable. Where the majority rules, there is usually no need for constitutional protection of the right to express views that are considered proper and reasonable by the majority. The real purpose of the First Amendment is to protect also the expression of sentiments that the majority finds unacceptable or even unthinkable. The First Amendment even protects the right to express the view that our constitutional form of government should be overthrown by illegal means. In Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), the Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U.S. at 447, 89 S.Ct. at 1829 (footnote omitted). While reasonable regulations pertaining to time, place, and manner may be imposed upon the exercise of the right to public expression of views, such regulations must not be based upon the content of the speech. They must be content-neutral. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).

Appellees argue that the proviso may be sustained because it does not make criminal a certain kind of speech, as did the law at issue in Brandenburg v. Ohio, but merely withdraws state support for the expression of views which the people of the state believe will promote immorality. Appellees say that the proviso will help to maintain a suitable environment in which students and teachers may pursue their educational purposes.

The appellees’ argument overlooks the fact that students and teachers may not be required to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969). A state cannot abridge freedom of speech on campus any more than it may do so off campus. “[T]he First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech.... ” Papish v. Board of Curators, 410 U.S. 667, 671, 93 S.Ct. 1197, 1200, 35 L.Ed.2d 618 (1973).

While a state might choose not to establish any state-supported institutions of higher learning, once it has decided to do so, it may not make the privilege of attending contingent upon the surrender of constitutional rights. “Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say.” Police Department v. Mosley, 408 U.S. 92, 95, 96, 92 S.Ct. 2286, 2289, 2290, 33 L.Ed.2d 212 (1972). Furthermore, freedom of speech and association “are protected not only against heavyhand-ed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. City of Little Rock, 361 U.S. 516, 521, 523, 80 S.Ct. 412, 415, 416, 4 L.Ed.2d 480 (1960). Thus the argument that withholding of the privileges of recognition (e.g. use of campus meeting facilities) leaves students and teachers free to express any views privately, informally, and off-campus and therefore does not affect First Amendment rights is without merit.

The fact that students, teachers, and speakers sponsored by campus groups at institutions of higher learning enjoy the full protection of the First Amendment does not prevent those involved in operating such institutions from maintaining a suitable environment for carrying on the process of scholarship. In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), a student political group was denied recognition as a student organization and challenged the denial in court. The president of the college sought to justify the denial on the ground of the group’s advocacy of revolutionary change and on the ground of possible disruption of the educational process. The United States Supreme Court said:

The mere disagreement of the President with the group’s philosophy affords no reason to deny it recognition. As repugnant as these views may have been, especially to one with President James’ responsibility, the mere expression of them would not justify the denial of First Amendment rights. Whether petitioners did in fact advocate a philosophy of “destruction” thus becomes immaterial. The College, acting here as the instrumentality of the State, may not restrict speech or association simply because it finds the views expressed by any group to be abhorrent. As Mr. Justice Black put it most simply and clearly:
“I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” Communist Party v. SACB, 367 U.S. 1, 137, 81 S.Ct. 1357, 1431, 6 L.Ed.2d 625 (dissenting opinion) (1961).

Id. 408 U.S. at 187-88, 92 S.Ct. at 2349. The Court made clear, however, that the First Amendment does not require a college or university community to stand idly by while persons or groups engage in conduct that substantially disrupts the functioning and the discipline of the school environment. “Associational activities need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.” Id. at 189, 92 S.Ct. at 2350. Mere speculation that certain kinds of speech might lead to disruption that the institution has a right to prevent, however, is not sufficient to support a regulation that limits the exercise of free-speech rights.

Numerous decisions of the federal appeals courts have applied these principles to the situation of denial of campus-recognition privileges and have held that such denial may not be predicated upon the content of the views held or to be expressed by the students in the organization. E.g., Chess v. Widmar, 635 F.2d 1310 (8th Cir. 1980), aff’d sub nom., Widmar v. Vincent, - U.S. -, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); Hudson v. Harris, 478 F.2d 244 (10th Cir. 1973); University of Southern Mississippi, Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 So.2d 564 (5th Cir. 1971).

Those who fought in the American Revolution and adopted the Constitution and the Bill of Rights included persons of widely varying religious, political, and moral views. They were moved by the desire to establish limited government and to enshrine certain fundamental personal rights as immune from governmental infringement. In order to secure to all the liberty they had gained, the framers of the First Amendment wrote it in broad, liberal terms. The history of the interpretation of the First Amendment shows a steady movement toward protecting the free-speech rights of persons of all political and moral views. Ours is a nation rich in diversity, and our strength has been in our practice of allowing free play to the marketplace of ideas. We consist of many divergent associational groups, and “[a]s to each group, there are sectors of the community to whom its values are anathema.” Gay Students Organization v. Bonner, 509 F.2d 652, 658 (1st Cir. 1974). Nevertheless, “[t]o permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship.” Police Department v. Mosely, 408 U.S. 95, 96, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).

We therefore hold that the proviso violates the freedom of speech under the First Amendment and article I, section 4 and is unconstitutional.

The trial court erred in holding that the official bodies and Ralph Turlington in his official capacity had standing to maintain this action. Furthermore, it erred in holding that the proviso does not abridge the freedom of speech and in holding that it does not violate article III, section 12 of the Florida Constitution. The judgment is reversed. The proviso quoted at the beginning of this opinion is unconstitutional and void. The Comptroller is directed to disregard it. The Secretary of State is directed to strike it from chapter 81-206.

It is so ordered.

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

      . “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S.Const., Amend. I.

      . “Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.” Art. I, § 4, Fla. Const.

      . But see Art. IX, § 1, Fla.Const.


text:
    Ellen Poteet HENDERSON, Appellant, v. OUTBOARD MARINE CORPORATION, Appellee.
    No. 81-1033.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Rehearing Denied Feb. 26, 1982.
    Murray Sams, Jr. of Sams, Gerstein & Ward, P. A., and Robyn Greene of Greene & Cooper, P. A., Miami, for appellant.
    James A. Franklin, Jr. and Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See Bryant v. Fiadini, 405 So.2d 1341 (Fla. 3d DCA 1981).

BOARDMAN, A. C. J., and GRIMES and RYDER, JJ., concur.


text:
    June TAGTMEIR, Appellant, v. STATE of Florida, Appellee.
    No. 81-1359.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1982.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

BOARDMAN, A. C. J., and GRIMES and RYDER, JJ., concur.


text:
    Electa J. BUTRICK, as next friend and parent of Michael Thorp, a minor, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, a corporation, Appellee.
    No. 81-2011.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1982.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for appellant.
    John 0. Terry of Terry & Terry, Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See Lumbermens Mutual Casualty Co. v. Castagna, 368 So.2d 348 (Fla.1979).

HOBSON, A. C. J., and BOARDMAN and DANAHY, JJ., concur.


text:
    Steven P. RINALDI, a minor, by and through his mother and next friend, Julia Rinaldi Frank, and Julia Rinaldi Frank, individually, Appellants, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    Nos. 81-1629, 81-1526.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1982.
    Rehearing Denied March 25, 1982.
    L. Edward McClellan, Jr. of McClellan, Raster & Vostrejs, Ocala, and Wooten, Honeywell, Rest & Martinez, Orlando, for appellants.
    James' R. Dirmann of Dirmann & Scott, Sarasota, for appellee.
   PER CURIAM.

Affirmed. See Savignac v. Department of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981).

HOBSON, A.C.J., and BOARDMAN and CAMPBELL, JJ., concur.


text:
    Socrates BIRSKY, Petitioner, v. Patricia Lee BARNES, Respondent.
    No. 81-1294.
    District Court of Appeal of Florida, Second District.
    March 5, 1982.
    Joseph L. Cardozo of Jones & Cardozo, Sarasota, for petitioner.
    Hugh C. Ferrell and Gerald B. Reane of Lowe, Ferrell & Ferrell, Chartered, Sarasota, for respondent.
   PER CURIAM.

Certiorari denied. Wiggins v. Dojcsan, 411 So.2d 894 (Fla. 2d DCA 1982).

RYDER, A.C.J., and DANAHY and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    W. R. HOUGHTON, Appellant/Cross-Appellee, v. CITY OF ST. PETERSBURG, a municipal corporation, W. T. Roberts, as Sheriff of Pinellas County, Florida, Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County, Florida, and Harold Mullendore, as Clerk in and for the Sixth Judicial Circuit, Appellees/Cross-Appellants.
    No. 80-2059.
    District Court of Appeal of Florida, Second District.
    March 12, 1982.

      Philip W. Dann of Baird, Dietrich & Dann, St. Petersburg, for appellant/cross-appellee.
    James T. Russell, State Atty., and C. Marie King, Asst. State Atty., W. Gray Dunlap, County Atty., Clearwater, and Helen Hobbs, Asst. County Atty., Carl R. Linn, City Atty., and John C. Wolfe, Asst. City Atty., St. Petersburg, for appellees/cross-appellants.
   OTT, Judge.

Appellant was awarded a judgment against appellees for return of money being held by the clerk of the circuit court in the amount of $316,380.00. The city sought review without success at City of St. Petersburg, et al. v. Houghton, 382 So.2d 898 (Fla. 2d DCA 1980). In subsequent proceedings, appellant was awarded $30,142.65 for postjudgment interest pursuant to section 55.03, Florida Statutes (1979).

Appellant now contends that the lower court abused its discretion in denying prejudgment interest on the sum recovered. However, we can find no support for this assertion, especially since appellant initially denied any ownership of or interest in the money, which continued until the superior right of entitlement was asserted and established in the replevin action.

The city cross-appeals and seeks either to vacate the entire postjudgment interest award or, in the alternative, to have it reduced to 8%, as prescribed by section 55.03, Florida Statutes (1979). The substance of the city’s contention is that the money was originally seized and held by the clerk during a grand jury investigation into a narcotics operation and that postjudgment interest only applies to judgment in civil actions. We note in passing that the action for recovery of the money was a civil action for replevin after termination of all criminal charges and proceedings.

Initially we note that the 1979 codification of section 55.03(1) was in full force and effect during the pendency of the first appeal and it provided:

All judgments and decrees bear interest at the rate of 6 percent a year, except that judgments or decrees rendered in circuit court shall bear interest at the rate of 8 percent a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation. (Emphasis added.)

Appellant is thus clearly entitled to post-judgment interest at the rate of 8%, as this judgment was rendered by a circuit court. We see no basis in the statute or fhe circumstances of this case to fault the trial judge’s determination that postjudgment interest was due the appellant. However, because appellant concedes that the post-judgment award exceeds the effective statutory rate, we reduce the lower court award to $25,310.40, or 8% on the sum recovered. As so amended, the judgment is AFFIRMED.

SCHEB, C. J., and SCHOONOVER, J., concur.

      . This section has been recently amended and now provides:
      (1) A judgment or decree entered on or after October 1, 1981, shall bear interest at the rate of 12 percent a year unless the judgment or decree is rendered on a written contract or obligation providing for interest at a lesser rate, in which case the judgment or decree bears interest at the rate specified in such written contract or obligation.


text:
    Lucy (Scheer) ISAACS, Appellant, v. Allan C. SCHEER, Appellee.
    No. 81-1697.
    District Court of Appeal of Florida, Second District.
    March 17, 1982.
    James A. Baxter and Elise K. Winters of Baxter & Rinard, P. A., Clearwater, for appellant.
    Gary W. Lyons of Phillips, McFarland, Gould & Wagstaff, P. A., Clearwater, for appellee.
   PER CURIAM.

Affirmed. See Friedman v. Schneider, 52 So.2d 420 (Fla.1951).

HOBSON, A. C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Lazaro VIAL, Petitioner, v. STATE of Florida and the Honorable Thomas S. Reese, Circuit Judge, Respondent.
    No. 82-175.
    District Court of Appeal of Florida, Second District.
    March 24, 1982.
    Douglas M. Midgley, Public Defender, and Robert Jacobs, Asst. Public Defender, Fort Myers, and W. C. McLain, Asst. Public Defender, Bartow, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

Petitioner contends that he is entitled to an adversary preliminary hearing. The response filed by respondent agrees with petitioner’s contention. We grant the petition for writ of certiorari and remand for an adversary hearing on or before April 5, 1982.

SCHEB, C. J., and OTT and DANAHY, JJ., concur.


text:
    G. E. H., Appellant, v. John HARDY, Superintendent Hillsborough Regional Detention Center, et al., Appellees.
    No. 82-419.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
    Judge C. Luckey, Jr., Public Defender, and Lawrence Anzalone, and John E. Benito, Asst. Public Defenders, Tampa, for appellant.
    Amelia M. Park, Legal Counsel of Dept, of Health and Rehabilitative Services, Tampa, for appellee/John Hardy.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee Honorable Walter N. Burnside, Jr.
   PER CURIAM.

Affirmed. See R. M. P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1981).

HOBSON, A. C. J., and GRIMES and CAMPBELL, JJ., concur.


text:
    Jimmy KENNEDY, Appellant, v. STATE of Florida, Appellee.
    No. 81-433.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.
    Jerry Hill, Public Defender and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980); Williams v. State, 395 So.2d 1236 (Fla. 4th DCA 1981); Smith v. State, 378 So.2d 117 (Fla. 4th DCA 1980); Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981); Davenport v. State, 396 So.2d 232 (Fla. 1st DCA 1981); and Washington v. State, 392 So.2d 599 (Fla. 1st DCA 1981).

Appeal dismissed, Fla., 417 So.2d 329.

BOARDMAN, A. C. J., and GRIMES and RYDER, JJ., concur.


author: SCHEB, Chief Judge. GRIMES, Judge,

text:
    John F. BENNINGFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 81-960.
    District Court of Appeal of Florida, Second District.
    April 14, 1982.
    Rehearing Denied May 12, 1982.

      Wilbur C. Smith, III, of Smith, Carta & Ringsmuth, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant John F. Benningfield challenges his conviction for trafficking in marijuana. He contends that the trial court erred in denying his motion to suppress the warrantless seizure of marijuana from the trunk of his automobile, and he attacks the constitutionality of section 893.135, Florida Statutes (1981). We reject both arguments.

Sergeant Grosser, an experienced narcotics officer with the Lee County Sheriff’s Department, was told by an informant from whom he had received reliable information in the past, that a group of men were in the lounge of a local motel planning a drug transaction. Ten minutes later, Grosser and a federal narcotics officer accompanied the informant to the motel where they encountered the suspects and overheard them discussing the drug transaction. The group of suspects divided, some entering a Torino automobile and the rest entering an Oldsmobile. The officers immediately followed the two vehicles which ultimately arrived at a warehouse. While surveying the warehouse they observed the Torino leave and saw appellant load what appeared to be several bales of marijuana into the trunk of the Oldsmobile. Sergeant Grosser then stopped the Oldsmobile as it began to leave the warehouse area. Upon opening the trunk of the vehicle, he smelled a strong aroma of marijuana. He saw several packages wrapped in black Yisqueen, one of which had marijuana residue on it. The officer had the vehicle towed to police headquarters where the trunk was again opened and the bales removed and tested.

Appellant contends that the opaquely wrapped packages could not be opened without a search warrant even though they were discovered in an automobile which an officer had probable cause to stop. He relies on Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), in which two highway patrol officers stopped an individual’s vehicle because he had been driving erratically. Upon smelling marijuana smoke, one of the officers searched the passenger compartment of the station wagon and found marijuana. The officers then lifted up a recessed luggage compartment where they discovered two packages wrapped in green opaque' plastic. The packages, when unwrapped, were also found to contain marijuana, and as a result the driver was charged with various drug offenses. He moved to suppress the evidence seized on the ground that the search violated his constitutional rights. However, the trial court denied his motion, and the court of appeal affirmed, holding that the warrantless opening of the package was constitutionally permissible. People v. Robbins, 103 Cal.App.3d 34, 162 Cal.Rptr. 780 (1980).

On certiorari the United States Supreme Court reversed and held that the warrant-less opening of the two packages constituted an unreasonable search and seizure. The Court noted that the diminished expectation of privacy in an automobile supported by its inherent mobility does not extend to closed containers inside the automobile. Even so, the Court acknowledged that not all containers and packages deserve fourth amendment protection. Some, by their very nature, whether by their distinctive configuration or otherwise, cannot support a reasonable expectation of privacy. Applying the rationale of Robbins, the Supreme Court of Florida recently held that a warrant is not required if an officer can determine by the container’s appearance that the suspect would not have a reasonable expectation of privacy or if the contents of the package or container are in plain view. Adoue v. State, 408 So.2d 567 (Fla.1982).

We feel that this case falls within the Robbins exception to the warrant requirement. Experienced officers who had observed numerous bales of marijuana testified that they knew from the outward appearance of the bales that they contained marijuana. They observed the bales from a distance before stopping appellant’s vehicle and observed them close at hand after they stopped the vehicle. In addition to noting the singular appearance of the packages, they saw marijuana residue on top of one of them. Thus, unlike the luggage in Robbins, the packages here clearly revealed their contents. It follows, therefore, that appellant had no reasonable expectation of privacy in the bales of marijuana, and that the warrantless search and seizure did not violate his fourth amendment rights.

Appellant’s challenge to the constitutionality of section 893.135, Florida Statutes (1981), has no merit in light of State v. Benitez, 395 So.2d 514 (Fla.1981).

AFFIRMED.

SCHOONOVER, J., concurs.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge,

concurring specially.

Another reason why the police could tell what was inside the bales was because they smelled marijuana when they opened the trunk. The smell was not significant in Robbins because there the officers had already found some marijuana in the passenger compartment which could have served to explain the odor.


text:
    Albert E. LOWE, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. 82-860.
    District Court of Appeal of Florida, Second District.
    April 30, 1982.
    Albert E. Lowe, pro se.
   ORDER OF TRANSFER

PER CURIAM.

This case was transferred to this court from the Circuit Court of the Tenth Judicial Circuit in and for Polk County pursuant to the rationale of Daniels v. Florida Parole & Probation Comm’n, 401 So.2d 1351 (Fla. 1st DCA 1981), holding that a determination by the Florida Parole & Probation Commission may be reviewed by the prisoner taking an administrative appeal to the appropriate district court of appeal. However, this court agreed with the rationale of Roberson v. Florida Parole & Probation Comm’n, 407 So.2d 1044 (Fla. 3d DCA 1981) because of the express provision in the Florida Administrative Procedure Act stating that prisoners shall not be considered parties for the purposes of obtaining proceedings under the act. See, section 120.52(10)(d), Florida Statutes (1981). Therefore, the correct procedure for obtaining review of determinations by the Florida Parole & Probation Commission remains the filing of a petition for writ of mandamus or habeas corpus in the circuit court where incarcerated. See Wainwright v. Holley, 234 So.2d 409 (Fla. 2d DCA 1970). Habeas would be the proper remedy if the prisoner contended that under his calculations his time had already expired. If it were contended that the commission’s calculations were incorrect but that even under the prisoner’s calculations he was not entitled to immediate release, mandamus would be the proper remedy.

Therefore, this petition for writ of mandamus is hereby transferred to the Circuit Court of the Tenth Judicial Circuit in and for Polk County for consideration and determination.

HOBSON, A. C. J., and OTT and RYDER, JJ., concur.