author: CLARK, Retired Circuit Judge.

text:
    Ricky Ralph MURPHY v. STATE.
    8 Div. 436.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 26, 1981.

      Stephen V. Hammond, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of the crime of escape in the first degree as proscribed by Title 13A (the Alabama Criminal Code), § 13A-10-31(a)(2)(b):

“(a) A person commits the crime of escape in the first degree if:
“(2) Having been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction.
“(b) Escape in the first degree is a Class B felony.”

Soon after the conviction, the court announced that a presentence investigation would be conducted by the probation officer, the State announced that it would proceed against defendant “under the Habitual Offender’s Statute under the new Alabama Criminal Code” and, over the objection of defendant as to such proceeding, the court set a sentencing hearing for September 11, 1980, about three weeks after the case was tried. After a hearing on the date set, the court entered an order that notice had been given “in open Court on August 20, 1980, that the State would proceed under Section 13A-5-9(c)(2) of the Code of 1975 as amended,” which provides:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies and after such conviction has committed another felony, he must be punished as follows:
“On conviction of a Class B felony, he must be punished by life in the penitentiary.

The Court then sentenced defendant to imprisonment for life.

The most troublesome issue presented by appellant relates to the action of the court in overruling appellant’s motion for a continuance of the case. The motion was presented when the case was called for trial about 1:50 P.M. on August 20, 1980. Defendant had been indicted on July 10, 1980. As stated in defendant’s written motion, the “defendant ha[d] been in continual incarceration since being taken into custody following his arrest for escape, some of which time ha[d] been spent in a hospital.” On August 5, 1980, the court entered an order “tentatively” setting the case for trial on “August 18, 1980; if the defendant is recovered sufficiently he will be returned for trial” and on August 11 ordered that the defendant be transported “from Montgomery, Alabama, to the Morgan County Jail pending proceedings against him.” On Monday morning, August 18, defendant was brought before the court for an arraignment. His indigency was then determined, and an attorney was appointed for him, the same attorney who represented him throughout the trial and has continued to represent him since. Defendant was arraigned that day, appearing before the court with his attorney, and entered a plea of not guilty.

When the case was reached on the docket and called for announcement as to readiness, the State announced ready. Thereupon the transcript shows:

“MR. HAMMOND: Your Honor, I intend to file a motion for a continuance in this case. Do you want to take that now?
“THE COURT: Yes.
“MR. HAMMOND: Judge, the grounds for this motion for a continuance basically relate to the insufficient time I have had to prepare this case. I was appointed by Your Honor, as you know, on Monday morning. The trial is set, of course, for Wednesday afternoon at 1:30. I have had very little time, insufficient time to do the necessary research, to prepare the necessary motions, to interview witnesses, to subpoena witnesses, to prepare adequate written jury charges and to basically prepare this case.
“THE COURT: Well, if there are any witnesses that you know of, where are they, or do you have any yet?
“MR. HAMMOND: I don’t know of any. I have had a very brief period of time to talk to my client about the case.
“THE COURT: Well, you know if it were a murder case or if it were a conspiracy case or if it were something like that, I would be more inclined to grant a continuance. I believe he is charged with the unlawful escape from legal custody of an officer, which ordinarily doesn’t take a whole lot of investigation. Now, if there is anything special about this case that does make it change that, I would be glad to hear you on it.
“MR. HAMMOND: Your Honor, there is nothing that is unusual so far as I know about the case. The point is that I have had very little time to discover it is all that I can—
“THE COURT: I understand that. In view of the fact that this man is up here from the State prison and in view of the fact that you have made — I have been informed that there is a witness here from out of State, is that correct?
“MR. MOEBES: Yes, sir.
“THE COURT: And who has been here for several days, since Monday?
“MR. MOEBES: Since Sunday.
“THE COURT: Well, that would not prevail if there was something that I thought might help the situation. I believe I will overrule the motion for a continuance.
“MR. HAMMOND: We except, Your Honor. I have one further motion I would like to file at this time.”

At that time counsel for the parties argued the demurrer to the indictment, which raised a question unrelated to the motion for a continuance.

Promptly after the ruling on the demurrer to the indictment, counsel for the defendant informed the court that he would like to renew his motion for a continuance “and state another ground.” This was permitted by the court and the following occurred:

“MR. HAMMOND: Your Honor, I would like at this time to renew my motion for a continuance based upon the ground that if the defendant is found guilty in this case, there will be a severe sentence imposed under the Habitual Offender Act. In fact, if he is found guilty of this felony offense and has in the past been found guilty of three previous felony offenses, there would be a mandatory life sentence which is one of the most severe sentences imposed by the State of Alabama on criminal defendants. Your Honor, I believe that more than two days preparation for this case is necessary in order to insure that the defendant’s Sixth Amendment Right to counsel is—
“THE COURT: What is your—
“MR. MOEBES: Judge, it was explained by the Court to this attorney that the case will be tried this week when he made a motion for a continuance. He has had two days to get ready for it. It would greatly surprise me if he even placed the witness on the stand. This is an escape case. The entire burden will be on the State, and as far as the matter of the Habitual Offender’s Statute, that also is a burden on the State to prove these prior convictions. I don’t see that this defendant for defense counsel is in any way prejudiced in proceeding with the trial of this case. As was explained to this attorney Monday, there is a state witness that was flown in here Sunday for the purpose of this trial. He has been here the entire week and we feel that certainly this attorney has had adequate time to properly prepare this man’s defense and we would ask to move forward with it.
“THE COURT: Well, I believe I would overrule the motion to continue it.
“MR. HAMMOND: We except, Your Honor.”

That the issue under consideration is worthy of serious consideration is unquestionable. The surface of the motion tends, we think, to lean heavily in favor of appellant. The fact that an attorney was allowed no more than approximately two days to prepare for the defense of a felony would in most cases materially impair the defendant’s Sixth Amendment right “to have the assistance of counsel for his defense.” In such respect, the denial of the motion for a continuance comes dangerously close to the error that was found to be reversible in Browning v. State, 57 Ala.App. 217, 326 So.2d .778, cert. denied, 295 Ala. 392, 326 So.2d 783 (1976) and error that was held to be reversible in Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974). It should be noted that Browning v. State, supra, was an appeal from a judgment in a post-conviction proceeding relative to the conviction which was upheld in Browning v. State, 51 Ala.App. 632, 288 So.2d 170 (1974).

Although it would have been better, we think, if the trial court had granted defendant’s motion for a continuance, we must go further than that to justify a reversal by reason of denial of the motion. Furthermore, we must give to the trial court the presumption in its favor, to which it is entitled in its rulings on motions for a continuance, having in mind that the trial judge is in a better position than we to pass judgment on how much time an attorney needs to give to the preparation of a particular case for trial. We believe that the trial judge weighed that question carefully, and nothing has come to our attention to convince us that defendant’s counsel, whether the counsel appointed or not, would have been in any better position than he was at the time of the trial, to afford defendant adequate representation. The case is not like Browning v. State, supra, in which there were allegedly alibi witnesses in Georgia and in which due to the speed of the proceedings there was a conflict between defendant and his counsel as to the advisability of the use of a codefendant as a witness for the defendant and an “estrangement between defendant and his counsel during the rest of the trial.” Nor is the case like Kearley v. State, supra, in which counsel for defendant made it known to the court that there were material witnesses for defendant that were not present in court and that counsel had not had an opportunity to have subpoenas issued and served on them or otherwise to have them available for the trial.

The scene of the crime in the instant case was within walking distance of the courtroom where the case was tried, which made it readily available to counsel and doubtless to a consideration of counsel while accompanied by his client. Counsel for defendant demonstrated his familiarity with the scene in the jail by making a drawing thereof he used in interrogating Sheriff Van Ward as a witness called by defendant and who had previously testified in the case on call of the State. The only other witness who testified as to the facts regarding the alleged escape was Mr. Edmond Freeman, who was acting at the time as a jailer and who, according to his testimony, while aided by a trusty in moving some prisoners from one of the cell blocks into their proper cells, was “rushed and overpowered by Mr. Murphy” and three other inmates. Mr. Freeman further testified that some, if not all of the four men used knives in subduing Mr. Freeman and the trusty and tied them to a handrail before leaving the jail. What happened to the other three escapees is not revealed by the evidence, but, according to the testimony of Sheriff Van Ward, defendant was located about a month after the escape, was then arrested and returned to the Morgan County Jail.

The only other witness in the case was Morgan County Circuit Court Clerk Cleo Teague, who testified as a predicate to introduction of certified copies of two previous convictions in that court, one for robbery and the other for the “unlawful possession of flurazepam” as alleged in the first and second counts of the indictment respectively.

It appears that probably the witness “from out of the State," who had been in Decatur for three or four days before the trial commenced was witness Edmond Freeman, although this is not conclusively true. It is clear that Mr. Freeman knew more about the facts of the escape than any witness other than the four escapees, including the defendant, and the unnamed trusty who was working with Mr. Freeman at the time. If there had been any inkling of a likelihood that any one of them would have been a witness favorable to defendant, we believe the trial court would have given that fact due consideration and would have permitted defendant’s counsel ample time and opportunity to have such witness in court to testify on behalf of defendant.

In the renewal of defendant’s motion for a continuance, counsel brought to the attention of the trial court that the State planned, if there was a conviction, to proceed against him under the Alabama Habitual Felony Offenders Act and argued therefrom that the case was for that reason graver than otherwise. Certainly the argument is correct, but the need for more time would have been chiefly as to the proceeding under the habitual offender law, as to which it developed that defendant was given ample time, which does not appear to be now controverted, in .that the sentencing hearing, including the proceeding under the habitual offender law, was deferred for twenty days, until September 11, 1980, and there was no request for any postponement of that hearing.

We think it should be noted also that in defendant’s motion for a new trial, a ground was included based on the court’s refusal to grant defendant’s motion for a continuance but that no evidence was offered and no showing of any kind was made to the effect that matters occurred, between the commencement of the trial and the submission of the motion for a new trial, that tended to show that defendant and his attorney would have been better prepared to try the case if they had been given more time to prepare for the trial. We have no doubt that defendant’s counsel did what he could during the time the motion for a new trial was pending to discover any matter of fact that would have been helpful to defendant and that if such had been discovered it would have been presented to the court on the hearing of the motion for a new trial.

Some intimation in the transcript and in appellant’s brief as to the lack of experience of defendant’s counsel fails to impress us. We note that all he said and did, orally and in writing, from the time of his appointment until the present, bear the mark of commendable legal ability, irrespective of any relatively brief experience.

It is to be seen that the trial court had the opportunity to view the motion for a continuance both prospectively and retrospectively, once before the trial commenced and again on the motion for a new trial. With due regard for the discretion vested in the trial court as to its ruling on a motion for a continuance and to its ruling on a motion for. a new trial, we are unable to conclude that such discretion was abused. What the trial court knew at the time of the hearing of the motion for a new trial tended to confirm what it knew and foresaw in ruling on the motion for a continuance. We find no error prejudicial to defendant in overruling defendant’s motion for a continuance.

During the process of selecting the jury, including the voir dire interrogation of the prospective jurors, to try the case, a question was asked the panel by defendant’s counsel as to their feeling relative to whether a defendant should be convicted of a “lesser included offense” on the one hand or of the greatest offense charged on the other. A hearing was then conducted out of the presence of the jury in which it was noted that Count III of a three-count indictment charged an offense which did not constitute an escape in the first degree, as it was alleged to have been in the count. After some discussion, the State moved to strike “Count Three” and the court entered an order striking it from the indictment. Appellant urges that “An indictment may not be amended without the consent of the defendant entered of record. Ala. Code § 15-8-90 (1975).” He is correct, but Chief Justice Stone said in Salm v. State, 89 Ala. 56, 8 So. 66 (1889):

“The record recites that the prosecuting attorney was allowed to amend the indictment in this case, by striking out the second count. Technically, this ruling was wrong. It was competent for the solicitor, with permission of the court, to enter a nolle prosequi as to one or more of the counts; and the ruling made accomplished the same result. We will treat the ruling as a nol-pros, and, so treating it, we find no error in this ruling.”

Accordingly, we find none in the instance under consideration. See also, Jackson v. State, 21 Ala.App. 284, 107 So. 725 (1926).

Connected with the issue just discussed, is a separate issue presented by appellant, as it was presented on the trial, to the effect that escape in the second degree inhibited by Code 13A-10-32 “If he escapes or attempts to escape from a penal facility.” is a lesser included offense of escape in the first degree, and that the court erred in refusing to allow defendant to argue to the jury that it should consider the question of defendant’s guilt of the lesser included offense and that the court erred in refusing charges requested by defendant permitting the jury to find defendant guilty of a lesser included offense.

In support of his contention that the court was in error in refusing requested written charges of defendant to the effect that the jury could find defendant guilty of an escape in the second degree as defined in § 13A-10-32, a Class C felony, and in not permitting defendant’s attorney to so argue to the jury, appellant states in his brief:

“No matter how slight the evidence, a defendant is entitled to have a correct statement of law given to the jury relative to lesser offenses included in the indictment if there is any reasonable theory from the evidence that would support a conviction of a lesser included offense. E.g., Weldon v. State, 58 Ala.App. 477, 280 So.2d 183 (1973).”

We do not question the correctness of the statement which finds support in the authority cited, as well as other authorities. However, we find that there is no “reasonable theory from the evidence that would support a conviction” of the claimed lessor included offense of escape in the second degree, a Class C felony. The evidence was undisputed and conclusive, as herein above indicated, that at the time of the escape defendant was in custody imposed pursuant to his previous conviction of a felony (two convictions in fact), which is an essential element of § 13A-10-31 but not an element of § 13A-10-32. Without attempting to decide the more ramified question whether the latter is a lesser included offense, of the former, defendant could not, under the undisputed evidence, have been guilty of a lesser offense without also having been guilty of the crime expressly charged. It follows that the court was not in error in ruling as it did on the subject.

On the sentencing hearing, the evidence included a certified copy of the record of a felony conviction of Rickey (or Ricky) Ralph Murphy in the Circuit Court of Laud-erdale County, Alabama, in each of at least four cases, which convictions occurred prior to the time of the alleged crime in the instant case. The identity of the name raised a prima facie presumption of the sameness of the person. There was no attempt to rebut that presumption. Appellant’s contention that the evidence was not sufficient to show that defendant had been previously convicted of three felonies cannot be sustained. McCord v. State, Ala.Cr. App., 373 So.2d 1242, 1244 (1979); Williams v. State, Ala.Cr.App., 364 So.2d 717 (1978). A careful reading of what was held in Napier v. State, Ala.Cr.App., 344 So.2d 1235, cert. denied, Ala., 344 So.2d 1239 (1977), relied upon by appellant discloses that it does not hold otherwise.

Appellant asserts that the Alabama Habitual Felony Offenders Act is unconstitutional, that it denies “equal protection of the laws in violation of the Fourteenth Amendment and permits cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States.” The first contention, as well as other contentions that the Act is unconstitutional, was thoroughly considered and rejected in Watson v. State, Ala.Cr. App., 392 So.2d 1274, cert. denied, 392 So.2d 1280 (1981). The question as to any violation of the cruel and unusual punishment provision of the Eighth Amendment was also considered, and it was held therein that as to the sentence in the case there was no violation of the principle. The sentence in the instant case is more severe than the sentence in Watson, but it is the same sentence, a mandatory life sentence, as the sentence imposed on Rummel that was upheld in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), as to which it is stated in Watson v. State, supra, at 392 So.2d 1277:

“... The Supreme Court, in reviewing the Rummel v. Estelle, supra, case, held that the mandatory life sentence imposed on Rummel did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. ... ”

We come to the same conclusion here.

As a final contention, appellant says that the Act “is void because it is vague and indefinite concerning the punishment to be inflicted.” On the contrary, it is clear and definite as to the punishment in this case in providing, in § 13A-5-9, as amended:

“(c) In all cases when it is shown that a criminal defendant had been previously convicted of any three felonies and after such convictions has committed another felony, he must be punished as follows:
“(2) On conviction of a Class B felony, he must be punished for life in the penitentiary;

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Ricky Ralph MURPHY. (In re Ricky Ralph Murphy v. State of Alabama).
    M-767.
    Supreme Court of Alabama.
    June 16, 1981.
   PER CURIAM.

WRIT DENIED — NO OPINION.

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


text:
    Ex parte State of Alabama. In re STATE v. George Bengali KEBE.
    3 Div. 397.
    Court of Criminal Appeals of Alabama.
    April 21, 1981.
    Rehearing Denied May 5, 1981.
   PER CURIAM.

Motion to suspend rules so as to allow an out-of-time appeal. MOTION DENIED.

All the Judges concur.

Writ denied, Ala., 399 So.2d 348.


text:
    Ex parte State of Alabama. (Re: Ex Parte: State of Alabama (In re STATE of Alabama v. George Bengali KEBE)).
    80-551.
    Supreme Court of Alabama.
    June 5, 1981.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
   PER CURIAM.

Writ denied.

Under ARAP 4(a)(1), an appeal must be filed within forty-two days from the date of entry of judgment. This rule is jurisdictional and neither this Court nor the Court of Criminal Appeals has the authority to extend this time. ARAP 2(b). The United States District Court for the Middle District cannot confer such authority on this Court.

WRIT DENIED.

All the Justices concur.


author: BOOKOUT, Judge.

text:
    Jimmy Ray HALL v. STATE.
    6 Div. 505.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.

      C. Delaine Mountain and Walter P. Crownover, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Violation of Alabama Uniform Controlled Substances Act; sentence: fifteen years’ imprisonment.

The appellant was tried and convicted for the July 19, 1980, possession of marijuana. The appellant was driving on Fayette County Road 12 when he was stopped by Fayette County Deputy Sheriff Arnold Strickland and Auxiliary Deputy Philip Donilson for having an excessively loud exhaust system on his car. After stopping the appellant, Deputy Strickland saw a .357 caliber Smith & Wesson revolver protruding from under the driver’s seat. He retrieved and unloaded it and asked the appellant for his pistol permit. The appellant replied that he did not have one, and he was arrested for carrying a concealed weapon without a permit. A more complete rendition of the facts is unnecessary as issues concerning an inculpatory statement made by the appellant and the search of his automobile are dispositive of his cause.

I

The appellant moved to suppress the admission of his statement on the ground that it was involuntarily made without first being given the Miranda warning. By stipulation both parties agreed that the testimony recorded at the appellant’s preliminary hearing would be adopted as that for the motion to suppress. The trial court denied the motion.

At the preliminary hearing Deputy Strickland testified that after the appellant could not produce a permit for the pistol he arrested him and asked if he would mind opening the trunk of his car. Appellant refused. From the record:

“A. ... I believe I arrested him at that time for carrying a concealed weapon and asked him if he would mind opening his trunk.
“Q. What did he say?
“A. To start off with, ‘no.’
“Q. Did you have any other conversations with him about opening the trunk?
“A. Yes, sir, I did. I advised him if he didn’t have anything to hide back there, didn’t have anything in there, he wouldn’t mind opening the trunk for me. At this time he got very fidgety. He asked if we could give him a break — assuming he was referring to the gun.
“I asked him once again would he open the trunk. Then he said he had something back there that he didn’t want us to see. I advised him that I had a gut feeling that he might have something else back there.
“Q. Tell us what you said and what he said.
“A. I told him if he didn’t have anything to hide, he would open the trunk.
“Q. I understand that, but after that.
“A. He advised that he had something back there that he didn’t want us to see. I advised him if it were necessary, I could get a search warrant to get into the vehicle. At that time we turned him around to pat him down, and I asked him again would he mind opening the trunk. He said, ‘Well, to be honest with you, I have got grass back there.'
“So I asked him would he give me the key, which he did at that time. When he gave me the key, I cuffed him and placed him in my car. I came back to his vehicle, opened the trunk, and there was a large green garbage bag in there which was tied up at the top. I opened the bag and there were several smaller bags with a substance in there that appeared to be marijuana.”

Deputy Strickland testified that he searched and arrested the appellant prior to his making the inculpatory statement. The search revealed no illegal substance upon the person of the appellant. It appears that after he surrendered his car keys the appellant was then handcuffed and placed in the patrol car. The appellant was never apprised of his Miranda rights at the scene.

After arresting the appellant Deputy Strickland opened and inspected the trunk of appellant’s car. Afterward he transported the appellant to the county jail, with Deputy Donilson driving the appellant’s car. They met Investigator Harold Pendley who had previously been contacted by Deputy Donilson. He inspected the contents of a garbage bag removed from the appellant’s trunk. Deputy Strickland stated that the appellant was given his Miranda rights by Investigator Pendley about ten minutes after his arrival at the jail although Strickland did not administer or witness such.

Deputy Donilson testified that he and Deputy Strickland asked the appellant several times for permission to open the trunk, but the appellant refused. We quote from the record:

“A. At the time of the arrest, Officer Strickland asked Jimmy to open the trunk. Jimmy says, ‘No.’ He asked him, he said, ‘Well, you’re not going to open the trunk for us?’ He said ‘No.’ So, Officer Strickland said, ‘Well, we can get a warrant and open the trunk that way, if you want it that way. It doesn’t matter.’
“At that time, I told Jimmy, I said, ‘Well, we’re going to see in it sooner or later, so why not let us see in it?’ And he said, ‘No.’ At that time Arnold said, ‘Well, I’m placing you under arrest for carrying a concealed weapon.’ And he asked Jimmy to face the car.
“As Arnold was frisking or searching Jimmy, Jimmy said, ‘Well, I’ll let you see in my ear.’ He said, T got a little grass back there.’ ”

Deputy Donilson corroborated the substance of Deputy Strickland’s testimony although their testimony was in conflict on some points. Donilson testified that two requests were made of the appellant for permission to open the trunk prior to his arrest. He stated that his request was made after the appellant’s arrest and that neither he nor Deputy Strickland advised the appellant of his Miranda rights at the scene.

The Miranda rule clearly demands that the State may not use statements, whether inculpatory or exculpatory, stemming from a “custodial interrogation” of an accused unless it proves that the Miranda warnings were given to the accused prior to questioning. Extrajudicial confessions are prima facie involuntary and inadmissible, and the burden imposed upon the State is to prove that the accused “knowingly and intelligently waived his privilege against self-incrimination” to the satisfaction of the trial judge whose finding will not be disturbed on appeal unless it is contrary to the great weight of the evidence or is manifestly wrong. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628; Harrison v. State, Ala., 358 So.2d 763 (1978); Garrison v. State, Ala.Cr.App., 372 So.2d 55 (1979); Barnett v. State, Ala. Cr.App., 348 So.2d 512 (1977).

“Custodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. “Interrogation” has been defined as “police questioning or conduct which is calculated to, expected to, or likely to evoke admissions.” Romine v. State, Ala.Cr.App., 384 So.2d 1185, cert. denied, Ala., 384 So.2d 1188 (1980), citing Com. v. Whitman, 252 Pa.Super. 66, 380 A.2d 1284 (1977). Such conduct need not occur at a police station or headquarters in order to be custodial. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Chavez-Raya v. Immigration Naturalization Service, 519 F.2d 397 (7th Cir. 1975); State v. Amorin, Hawaii, 604 P.2d 45 (1979).

The Miranda warning is required only where there has been such a restriction on a person’s freedom as to render him “in custody.” Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). It is inapplicable to traditional investigatory functions as general on-the-scene questioning. United States v. Montos, 421 F.2d 215 (5th Cir. 1970), cert. denied, 307 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. The test in determining the existence of a custodial interrogation has been defined as whether a reasonable man would feel that he was physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action is restricted by such interrogation. State v. Hatton, 116 Ariz. 142, 586 P.2d 1040 (1977); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).

The line of demarcation between a general investigation and a custodial interrogation must be determined by a case-by-case factual analysis. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). Criteria used to determine the necessity of Miranda safeguards include: (1) probable cause to arrest, (2) subjective intent of the police, (3) subjective belief of the accused, and (4) focus of the investigation. Montos, supra. While the focus of the investigation is especially important in deciding whether an accused should be given the Miranda warning, it is custody and not focus which marks the point at which it becomes mandatory. Mathiason, supra; Harris v. State, Ala.Cr.App., 376 So.2d 773, cert. denied, Ala., 376 So.2d 778 (1979).

In the instant case there can be no doubt that the appellant was in custody at the time of his interrogation. He had been initially stopped for a motor vehicle violation and, shortly thereafter, arrested for carrying a concealed weapon. He was questioned concerning the opening of his car trunk before and after his arrest; a matter which was wholly and totally unrelated to his initial stop and subsequent arrest. The appellant was searched prior to the making of his incriminating statement and afterward handcuffed and placed in a patrol car. After the search of his car trunk and his transportation to the county jail, the appellant was apparently given the Miranda warning about ten minutes after his arrival although there is no direct testimony to support such a conclusion. Deputy Strickland only stated that he was told that the Miranda warning had been given.

The mandate of Miranda is clear in that in a situation as that sub judice the appellant should be apprised of his constitutional rights and safeguards prior to any questioning. Without such, his inculpatory statement is prima facie involuntary and inadmissible. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973). Thus, the trial court erred in denying the appellant’s motion to suppress his statement. Garrison; Barnett, supra.

The subjective effect upon the appellant of the statements made by the deputies before his arrest can only be viewed impliedly, if not expressly, as coercive in nature. They were calculated, likely, or expected to evoke a response detrimental to the appellant. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

II

Because the search in the instant case was conducted without a warrant issued upon probable cause, it can pass constitutional muster only if it is shown that it falls within one or more of the exceptions to the warrant requirement set out in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The burden is on the State to make such a showing. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Murray v. State, Ala.Cr.App., 396 So.2d 125, cert. denied, Ala., 396 So.2d 132 (1980); Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970).

The only exceptions to the warrant requirement which the facts in the instant case would remotely suggest would be (1) where exigent circumstances exist coincidental with probable cause per Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or (2) with consent, voluntarily, intelligently and knowingly given, per Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

We conclude that at the time the officers began seeking permission to open the trunk neither probable cause nor exigent circumstances existed. Neither the minor infraction of driving with an improper muffler nor the infraction of possessing a pistol in an automobile without a permit would give rise to probable cause to believe that contraband was in the trunk of the appellant’s automobile. The officer’s “gut feeling” that the appellant “might have something” in the trunk is hardly sufficient to establish probable cause. Likewise, exigent circumstances did not exist at the time the officers began questioning the appellant concerning the trunk of his automobile. Neither the appellant nor his automobile were mobile at that time. The appellant was in custody outside of his car.

The evidence in the instant case likewise fails to meet the standard required to affirmatively establish consent to search. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, supra; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Clear and convincing evidence of waiver is required, and the burden of proving waiver is on the State as the party claiming it. Rueffert, supra.

The failure to inform the accused of his right to refuse to consent is a factor to consider in determining voluntariness, but it is not to be given controlling significance. Weatherford v. State, AIa.Cr.App., 369 So.2d 863, cert. denied, Ala., 369 So.2d 873 (1979). The State must prove that there was no duress or coercion, express or implied. “The consent must be unequivocal and specific, and freely and intelligently given. There must be clear and positive testimony.” Hardy v. State, 53 Ala.App. 75, 78, 297 So.2d 399 (1974). Courts indulge in every reasonable presumption against waiver of fundamental Fourth Amendment rights. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965). It has been held that a peaceful submission to a search or seizure is not a consent or an invitation to the search, but is “merely a demonstration of regard for the supremacy of the law.” Knox v. State, 42 Ala.App. 578, 582, 172 So.2d 787 (1964).

In Murray v. State, supra, we held consent to search the defendant’s car to have been involuntarily given. There the appellant was stopped on a highway without probable cause pursuant to an anonymous telephone tip. A deputy sheriff asked Murray if he could search the ear and was told, “I would rather you wouldn’t.” Nevertheless, the deputy walked to the driver’s side of the car to take the keys from the ignition. He observed a large dog in the back seat and inquired whether the dog would bite. Murray stated that the dog would and then reached in the car himself, removed the keys, and handed them to the deputy. Forty pounds of marijuana was found in the trunk of the car. It was apparent from the record in the Murray case that the officers were going to search the car with or without the appellant’s consent and that the appellant removed the keys from the car for the officers to prevent one of them from being bitten or to prevent injury to his dog.

In Murray, supra, we cited Henderson v. State, 49 Ala.App. 275, 270 So.2d 822 (1972). In that case this court held that a mere showing that an accused gave officers the keys to her car upon their request was insufficient to show a voluntary waiver of her Fourth Amendment rights.

In Henderson, supra, at 277, 270 So.2d 822, this court stated:

“When the State relies upon consent to justify a search and seizure of evidence to incriminate, the consent must be given under circumstances to justify a waiver of known rights. This is not a matter that can be presumed, but the State had the burden of proving that the consent or waiver was given voluntarily without inducement or coercion and with knowledge of the right to refuse the request to search.... ” (Citations omitted.)

This court in Whitener v. State, Ala.Cr.App., 390 So.2d 1136, cert. denied, Ala., 390 So.2d 1145 (1980), and in Herriott v. State, Ala.Cr.App., 337 So.2d 165, cert. denied, Ala., 337 So.2d 171 (1976), held consent to search to be involuntarily given where it was based upon an officer’s threat to obtain a search warrant where no probable cause existed at the time. The record in the instant case reveals that after the appellant had refused several requests to allow the officers to search the trunk of his car, Deputy Strickland stated, “I advised him if it were necessary I could get a search warrant to get into the vehicle.” The officers began to “pat him down” and again asked him would he mind opening the trunk, at which time he made his incriminatory statement and gave the officers the keys to the automobile. It is apparent that the appellant was submitting rather than consenting to the search. In Herriott, supra, we noted:

“Vi£e must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckioth that ‘in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.’ ”

Consequently, the appellant’s motion to suppress should have been granted.

REVERSED AND REMANDED.

All the Judges concur.

      . Spelled “Phil Donaldson” in the preliminary hearing record, but referring to the same individual.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: TYSON, Judge.

text:
    James BERRY v. STATE.
    7 Div. 825.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    R. D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Berry was indicted for and convicted by a jury of first degree sexual abuse pursuant to § 13A-&-66, Code of Alabama 1975. The trial court set sentence at eight years’ imprisonment.

On February 23, 1980, appellant, a forty-two year old man “of limited intelligence,” picked up the prosecutrix, a five year old girl that he regarded as his daughter, to take her out for a hamburger. On the way, they stopped by the appellant’s house, where the alleged sexual abuse took place.

After the trial court had questioned the victim and determined that she was competent to testify as to the incident in question, the prosecutrix told the jury that the appellant took her inside his house, undressed her and put his hand inside her “private parts”.

An older sister of the prosecutrix testified that she rushed the prosecutrix to the hospital as soon as the appellant brought the victim home crying and she revealed to her what had happened with the appellant.

The physical examination at the hospital revealed “superficial abrasions and some bruises of the labia and hymenal area” consistent with “some type of sexual abuse”.

The appellant made a pretrial confession to two police officers. The confession, made after the Miranda warnings had been read and explained carefully, was entirely consistent with the prosecutrix’ testimony and the examination results.

At trial, however, the appellant denied the sexual contact and claimed his confession was “involuntarily” given.

I

The appellant’s sole argument on appeal is that the trial court committed reversible error by admitting this “custodial confession,” which was not “voluntarily” given because appellant was too ignorant to understand the Miranda type warnings or the “statement or confession” that he signed by “mark.”

The two police officers who took down the appellant’s confession testified that they had known appellant on a friendly basis for several years (i. e. a fact which was confirmed by appellant at trial). These officers knew that he was simpleminded and could neither read nor write and consequently, they had been particularly careful to explain the Miranda rights and also the confession itself to the appellant. Each testified that they were convinced that appellant understood their explanations. In their opinions appellant’s waiver of his Miranda rights was “knowing and intelligent” and his confession was “voluntary”.

The only evidence offered in support of appellant’s argument was that he could not read or write and was mentally “slow”. Yet, there was no evidence in this record of appellant’s I.Q. or of any mental retardation or mental illness.

There are cases which have found confessions to be “involuntary” where the defendants were shown to have I.Q.’s in the “mentally retarded” range and where the defendant’s rights were not carefully explained. Garrett v. State, Ala., 369 So.2d 833 (1979); Hines v. State, Ala., 384 So.2d 1171, cert. denied, Ala., 384 So.2d 1184 (1980).

However, the mere fact that an appellant is “functionally illiterate” or simpleminded will not vitiate the “voluntariness” of his confession. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Arnold v. State, Ala.Cr.App., 348 So.2d 1092, cert. denied, Ala., 348 So.2d 1097 (1977), and cases therein cited; Parker v. State, Ala.Cr.App., 351 So.2d 927, cert. denied, Ala., 351 So.2d 938 (1977); Jackson v. State, Ala.Cr.App., 375 So.2d 1271, cert. denied, Ala., 375 So.2d 1274 (1979). We held in Jackson, supra, that the defendant’s confession under the circumstances was “voluntary” in spite of proof of “mild retardation” and “functional illiteracy”.

We are of the opinion that the appellant’s low mentality (in this case) should go to the weight and credibility of his confession rather than to its admissibility. Elrod v. State, supra. We are of the opinion that the evidence in this record fully supports the trial court’s ruling that the confession was “voluntarily” given by appellant after a “knowing and intelligent” waiver of his Miranda rights. Therefore, the trial court’s decision in this matter should be upheld. Rhine v. State, Ala.Cr. App., 360 So.2d 1056, cert. denied, Ala., 360 So.2d 1060 (1978), and cases cited therein; Garrison v. State, Ala.Cr.App., 372 So.2d 55 (1979); Hall v. State, Ala.Cr.App., 399 So.2d 348 (1981).

This record is free of error. This cause is therefore affirmed.

AFFIRMED.

All the Judges concur.


text:
    David Livingston FUNCHESS, Appellant, v. STATE of Florida, Appellee.
    No. 47828.
    Supreme Court of Florida.
    April 2, 1981.
    Rehearing Denied June 30, 1981.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

David Livingston Funchess was tried and convicted of two counts of murder in the first degree and was sentenced to death in trial court proceedings affirmed by this Court. Following a subsequent United States Supreme Court decision in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we vacated Funchess’ death sentences and remanded his case to the trial court for resentencing without an advisory jury proceeding.

On remand, an evidentiary hearing was conducted by the trial court at which Fun-chess presented evidence in mitigation of his sentences. Nonetheless, the trial court in due course entered an order again sentencing Funchess to death, following which Funchess brought this case to us for review.

Funchess makes a number of legal attacks on the propriety of instructions given to the jury at the sentencing proceeding of his first trial, arguing that the order remanding for so-called ‘‘Gardner relief” should have included a mandate for reconvening an advisory jury. We reject all of these contentions. The purpose for our remand was to comply with the dictates of the United States Supreme Court in Gardner v. Florida; it was not to provide an entirely new sentencing proceeding at which a new advisory jury could be reconvened. Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Complying with our mandate, the trial court properly rejected all legal points raised by Funchess’ counsel.

The only proper question now presented is whether there is substantial competent evidence to support the express findings of the trial judge that sentences of death are appropriate for Funehess. We are satisfied from our review of the evidence presented at the resentencing procedure, and from the record of the original sentencing proceeding: first, that the trial jiidge properly performed his weighing function with respect to the one new mitigating circumstance developed at the resen-tencing proceeding and the aggravating factors which had been established at the original proceeding (all but one of which were unchallenged on remand); and second, that there was substantial and competent evidence to support the findings of the trial judge with respect to the aggravating and mitigating circumstances articulated in his resentencing order.

The dictates of Gardner v. Florida have been faithfully met by the trial court in this case, and sentences of death were properly imposed. We affirm the trial court’s new death sentences.

It is so ordered.

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

McDONALD, J., dissents.

      . Funchess v. State, 341 So.2d 762 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977).

      . Funchess v. State, 367 So.2d 1007 (Fla.1979).


author: ENGLAND, Justice.

text:
    THE FLORIDA BAR, Petitioner, v. G. B. T., Respondent.
    No. 59334.
    Supreme Court of Florida.
    April 23, 1981.
    Rehearing Denied June 30, 1981.
    Wallace N. Maer, Bar Counsel, Miami, for petitioner.
    Hugh F. Quinn, Coral Gables, and Louis M. Jepeway of Jepeway & Jepeway, Miami, for respondent.
   ENGLAND, Justice.

The Florida Bar brought a disciplinary action against G.B.T., resulting in a referee’s report recommending a six-month suspension from the practice of law, payment of the proceedings’ costs, and his making restitution to his client. Both The Florida Bar and G.B.T. have asked us to review the report of the referee.

The Bar’s complaint alleged two counts of professional misconduct, only the first of which had evolved from a probable cause determination of a bar grievance committee. The first count alleged a violation of Disciplinary Rule 6-101(A)(3), charging neglect of a legal matter entrusted to counsel. The second count was dismissed by the referee on G.B.T.’s motion.

With regard to the first count, we have carefully reviewed the record and approve that portion of the referee’s findings which concludes that G.B.T., by failing for six months to deliver to his client a status report and by refusing to respond to his client’s inquiries regarding an unemployment claim he was hired to pursue, neglected a matter entrusted to him and thereby violated Disciplinary Rule 6-101(A)(3). This finding was subject to conflicting, but substantial and competent evidence. We disapprove, however, that portion of the referee’s findings which concludes the statute of limitations had expired on his client’s unemployment claim as a result of G.B.T.’s failure to file suit. The record is uncontro-verted that the time for filing the client’s claim for unemployment insurance had elapsed prior to the date upon which G.B.T. was retained for legal services.

With regard to the second count, dismissed on the ground that there was no probable cause found by the grievance committee, we affirm the referee’s ruling. Nowhere in the Florida Integration Rule is bar counsel empowered to charge an ethical violation without a finding of probable cause by either the grievance committee or the Board of Governors of The Florida Bar. On the contrary, the Integration Rule provides mechanisms by which bar counsel can proceed if he deems the finding of the grievance committee technically deficient, article XI, Rule 11.04(6)(b), or if he chooses to recommend to the Board of Governors that it make a finding of probable cause against the attorney, article XI, Rule 11.05(2).

A six months suspension from the practice of law for G.B.T.’s neglect of one legal matter, a technical violation of Disciplinary Rule 6-101(A)(3), is excessive. G.B.T. has had no prior occasions of misconduct. A reprimand is the most that is appropriate, and we hereby reprimand G.B.T. for neglect of his client’s affairs and his failure to communicate. Costs in the amount of $355.00 shall be divided equally between G.B.T. and the bar.

It is so ordered.

ADKINS, Acting C.J., and BOYD, ALDERMAN and McDONALD, JJ., concur.


author: DOWNEY, Judge.

text:
    DIVISION OF ADMINISTRATION, State of Florida, Department of Transportation, Appellant, v. Franklin I. SAEMANN et al., Appellees.
    No. 79-1188.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1981.
    Rehearing Denied June 30, 1981.
    Alan E. DeSerio, H. Reynolds and Kenneth M. Towcimak, Tallahassee, for appellant.
    Toby Prince Brigham of Brigham, Reynolds, Byrne & Moore, P. A., Miami, for appellee-Rinker Materials Corp.
   DOWNEY, Judge.

The Department of Transportation has perfected this plenary appeal from a judgment in eminent domain in favor of the property owner.

In the course of widening and improving Glades Road in Boca Raton, Florida, the Department of Transportation condemned a portion of the property owned by appellee Rinker Materials Corporation on which Rinker had operated a full service concrete batch plant and building construction supply yard for a number of years. The major dispute between the parties involved the cost to cure the severance damage incurred as a result of the taking.

At trial the Department presented an appraiser, C. R. Johnson, to testify to the value of the property taken, severance damages, and the cost to cure those severance damages. A proffer of Johnson’s testimony showed that his opinion as to the cost to cure the severance damages would be based upon an opinion furnished Johnson by George Arnold, who, the court ultimately ruled, was not qualified as an expert witness to testify as to the cost of reorganizing the property so that it could be efficiently operated as a concrete batch plant and building construction supply yard after the taking.

Among other things, the proffer also showed Johnson could testify that the difference between the value of Rinker’s property before and after the taking was $288,-626, which difference represented the total damages to the property occasioned by the taking. The trial court ruled that Johnson could testify as to the difference between the before and after value; however, Johnson would not be permitted to testify as to the cost of reorganizing the property. When the trial court ruled Arnold was not qualified as an expert to render an opinion on the reorganization question, the Department restricted Johnson’s testimony solely to his opinion as to the value of the land taken. Johnson did not testify as to either severance damages or the cost to cure any damage caused by severance. When the Department rested its case, Rinker moved to strike Johnson’s testimony on the grounds that the Department was required to furnish the jury with evidence so that they could determine “full compensation” for the taking, i. e., the value of the land taken, severance damages, and cost to cure the severance damages; since the Department failed to adduce any evidence on severance damages, the existence of which the Department conceded, Rinker contended Johnson’s testimony as to the value of the property taken was subject to being stricken. Rinker relied on State v. Byrd, 254 So.2d 886 (Fla. 1st DCA 1971), as authority for its motion to strike Johnson’s testimony. The court granted the motion to strike, and the Department contends this was reversible error.

The principle involved in Byrd is that testimony which misconceives the law of severance damages is inadmissible. That principle does not support the trial judge’s action, and, in our judgment, the trial court erred in striking Johnson’s testimony as to the value of the land taken because Johnson did not give testimony as to the severance damages Rinker admittedly suffered.

The burden of proof of severance damages is upon the landowner. City of Fort Lauderdale v. Casino Realty, Inc., 313 So.2d 649 (Fla.1975). Therefore, in the absence of an order of the trial court requiring the condemnor to go forward in its case in chief and prove all damages (See Casino Realty, Inc., supra), even those as to which the landowner generally has the burden of going forward, the condemnor is not required before resting its case in chief to adduce proof of severance damages. From our study of the record we are unable to find any order of the trial court requiring the Department to go forward with the proof of severance damages in its case in chief. The most that can be said for this record is that the trial court ruled the Department could not adduce proof through Johnson as to cost to cure damages, but Johnson could testify to value of the land and improvements taken and severance damages. The Department continued to assert the right to have Johnson testify to the entire package. Finally, the Department elected to leave out all Johnson’s testimony on damages except as to value of the land and the improvements taken. During one of the colloquies between the court and counsel for the Department, counsel states:

“Your Honor, I must take the position that if the witness [Johnson] cannot testify to cost to cure, then he is unable to testify to severance damages; and we will request the jury instruction to the effect that the range of severance damage testimony will go from zero to the value of the landowner’s appraisal.... If he cannot do that, I don’t believe that he can testify to severance damages; and I don’t intend to put testimony on, Your Honor.”

We hold it was error for the trial court to strike the Department’s evidence of value of the land and improvements taken because the Department did not also adduce evidence of severance damages. Without an order as suggested in Casino Realty, Inc., supra, we believe the Department could adduce proof of the value of land and improvements taken and rest, and on rebuttal put on testimony as to its view of the severance damages to contradict the landowner’s proof of this element of damage. However, the error in striking the Department’s evidence of value of the land and improvements taken was harmless because the jury found the value of the land and improvements taken was about one-half of what Johnson, on behalf of the Department, testified it was worth. Thus, the Department was not prejudiced by the striking of Johnson’s testimony. What is more, the department failed to make any attempt at rebutting the severance damage evidence that Rinker presented.

The Department’s main complaint on this appeal is the trial court’s ruling that Arnold was not qualified to testify on the issue of the cost to cure the severance damages. As the Second District Court of Appeal, in Harbond, Inc. v. Anderson, 134 So.2d 816, 819-820 (Fla. 2d DCA 1961), said:

it is axiomatic that the matter of whether or not a witness is qualified to testify as to value of specified lands is a question which must be left in large part to the discretion of the trial court. Wigmore on Evidence, section 561, p. 641; 32 C.J.S. Evidence § 545, p. 305.

Professor Wigmore describes the trial court’s discretion in this area as an almost unqualified discretion. We have carefully considered the Department’s position in this regard, recognizing as we do that the ruling in question pulled the rug from under the Department’s case. However, in view of the sound discretion vested in the trial court in matters of this nature (see, e. g., Upchurch v. Barnes, 197 So.2d 16 [Fla. 4th DCA 1967]), we are unable to find an abuse thereof. We simply are unable to characterize the trial judge’s ruling as arbitrary, fanciful, or unreasonable, nor can we say that no reasonable man would take the view adopted by the trial judge. At the very least, we think reasonable men could differ on the question presented. Thus, the exercise of discretion under review meets the test as established by the Supreme Court of Florida in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

In view of the foregoing, the judgment appealed from is affirmed.

AFFIRMED.

GLICKSTEIN, J., and FUTCH, M. DANIEL, Jr., Associate Judge, concur.


author: PER CURIAM. PER CURIAM.

text:
    SHERROD & ASSOCIATES and Continental Casualty Company, Appellants, v. Kevin WEAVER (deceased) Ruth Pyeatt, Appellee.
    No. XX-416.
    District Court of Appeal of Florida, First District.
    April 9, 1981.
    Rehearing Denied May 29, 1981.
    H. B. Yandle, Law Offices of Joel R. Teague, Coral Gables, for appellants.
    Jerold Feuer, Miami, for appellee.
   PER CURIAM.

Affirmed.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.

ON PETITION FOR REHEARING AND CLARIFICATION

PER CURIAM.

On appellants’ request for clarification, our affirmance does not preclude the parties from presenting evidence on life expectancy at the attorney’s fee hearing to be held below. The petition for rehearing is denied.

McCORD, ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


author: BOARDMAN, Judge.

text:
    Louis ST. LAURENT, individually and as trustee, Appellant, v. RESORT MARKETING ASSOCIATES, INC., a Florida Corporation, and Tampa Land Company, a registered real estate broker, Appellees.
    Nos. 80-1864, 80-2135.
    District Court of Appeal of Florida, Second District.
    April 10, 1981.

      Jerome H. Shevin of Sparber, Shevin, Ro-sen, Shapo & Heilbronner, Miami, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   BOARDMAN, Judge.

In these interlocutory appeals, defendant St. Laurent challenges trial court orders denying his motions to dismiss for improper venue and to transfer on the basis of forum non conveniens. We hold that venue does not lie in Lee County where plaintiffs/appellees Resort Marketing Associates and Tampa Land Company filed this lawsuit, and we therefore reverse.

The complaint alleged that appellant had breached a sales marketing agreement between the parties for the sale of weekly units of interval ownership at a condominium resort known as Topsider Ocean Resort located on U.S. 1, Matacumbe Key, Monroe County. In paragraph 4 of the complaint appellees alleged that the funds under the contract were to be paid in Lee County. The motion to dismiss for improper venue stated that appellant’s sole place of residence was currently in Monroe County; the property in litigation was located in Monroe County; “[p]ayments under the subject Contract, contrary to the allegations of Paragraph 4 of the Complaint, were to be made in Monroe County since that is where all closings were to take place ‘on site’ in accordance with Paragraph 7A of the Contract, on which the action is based, and all final commissions allegedly accruing were to be due and paid only at closing”; and the cause of action for breach of contract, if any, occurred in Monroe County. Appellant filed an accompanying affidavit attesting to the truth of the statements contained in the motion.

The breach alleged was that appellant had ordered all of appellees’ employees to leave the Topsider Ocean Resort premises and to cease performing under the contract. The testimony established that appellant’s order was originally delivered in person at the Topsider Ocean Resort office in Monroe County, although he later wrote and hand delivered a formal termination letter to ap-pellees in Lee County.

Richard Ogborne, a former Topsider employee, testified that overall direction and control over the sales operation was maintained in Lee County, that Resort Marketing’s staff worked on marketing concepts and administrative functions in Lee County, and that reports concerning the progress of the sales effort were made to appellant in Lee County. However, it was undisputed that the services necessary for the day-today operation of the Topsider Ocean Resort were performed at the Topsider office in Monroe County, and all sales efforts pursuant to the agreement were performed by appellees in Monroe County.

Suit may be brought only where the defendant resides, where the cause of action accrued, or where the property in litigation is located. § 47.011, Fla.Stat. (1977). Inasmuch as there is no property in litigation, as such, and Monroe County was the county in which appellant resided at the time the action was filed and in which appellant continues to reside, the sole issue on this appeal is where the cause of action accrued.

As regards a service contract, the cause of action accrues where the services are to be performed. Thomas Hardell & Associates, Inc. v. Nabers & Crane, 382 So.2d 439, 440 (Fla.2d DCA 1980); James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487 (Fla.2d DCA 1970). Since all sales efforts were performed in Monroe County and the actual sales took place there, we agree with appellant that the services under the contract in question were to be performed in Monroe County, regardless of the fact that the marketing strategy may have been determined elsewhere.

When there is an alleged breach of performance under a contract, where the cause of action accrues also depends on the nature of the breach alleged. If the breach is alleged to consist of renunciation of a partially completed contract, the cause of action accrues where the renunciation occurred. Mendez v. George Hunt, Inc., 191 So.2d 480, 481 (Fla. 4th DCA 1966). We again agree with appellant that the alleged breach occurred in Monroe County, when appellant first ordered appellees’ employees to cease performing under the contract.

Appellees, however, contend that in addition to seeking damages for loss of future profit, they also sought to recover commissions and other sums due on sales already completed and reimbursement for expenditures they had to make which were actually appellant’s obligation. Appellees assert that these funds were payable to them at their office in Lee County.

Ordinarily it is true in an action for money owed that the cause of action accrues in the county of the creditor’s residence, since “the debtor should seek the creditor... . ” M. A. Kite Co. v. A. C. Samford, Inc., 130 So.2d 99, 101 (Fla.1st DCA 1961). However, this general rule applies only where no place of payment is expressly agreed upon. M. A. Kite Co., supra; Winchester v. State ex rel. Florida Electric Supply, Inc., 134 So.2d 826 (Fla.2d DCA 1961). The agreement in issue here provides that commissions and other costs due from appellant to appellees, delineated in paragraph 16, are to be paid “at closing,” the closings to occur “on site.” This being so, we conclude that the place of payment to appellees was Monroe County.

There being no theory upon which venue in Lee County can properly be laid, the trial court’s order denying appellant’s motion to dismiss for improper venue is REVERSED and the cause REMANDED with directions to grant the motion.

SCHEB, C. J., and CAMPBELL, J., concur.

      . In light of our decision, the forum non con-veniens issue is moot, and we do not address it.


text:
    SOUTHERN FRUIT DISTRIBUTORS, INC., and Commercial Risk Management, Inc., Appellants, v. Jaime MOLINA, Appellee.
    No. WW-447.
    District Court of Appeal of Florida, First District.
    April 16, 1981.
    Rehearing Denied May 28, 1981.
    Richard H. Weisberg of Cooper & Riss-man, Orlando, for appellants.
    Rafael De Armas, Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.

ON PETITION FOR REHEARING

PER CURIAM.

The appellee successfully defended his cause in a workers’ compensation appeal before this court and now petitions for rehearing, urging that we award him an attorney’s fee. The original request for attorney’s fees on appeal was made in the appellee’s brief instead of by separately-filed motion. Therefore, the request must be denied. See Brannon v. Marion County Sheriff’s Office, 391 So.2d 253 (Fla. 1st DCA 1980) and cases cited therein.

Accordingly, Petition for Rehearing is DENIED.

SHIVERS, WENTWORTH, JJ, and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: FERGUSON, Judge.

text:
    AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Appellant, v. WILLIAMS, SALOMON, KANNER & DAMIAN, as Trustee, Appellee.
    No. 80-1415.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 25, 1981.

      Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Vincent E. Damian, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   FERGUSON, Judge.

This case was previously before the court on appeal from a final judgment in which the trial court ruled that the first and third mortgages of American Bankers Life Assurance Co. together constituted a first lien upon the subject property. We reversed, holding that the third mortgage could not be elevated to the same priority as the first mortgage and, accordingly, that the second mortgage acquired by Williams, Salomon, Kanner & Damian remained second in priority. We remanded for further proceedings. Williams, Salomon, Kanner & Damian v. American Bankers Life Assurance Company, 379 So.2d 119 (Fla. 3d DCA 1979). Subsequent to the judgment of foreclosure, but prior to our decision, the property was sold to American Bankers at a foreclosure sale. On remand the trial court entered a revised final judgment of foreclosure declaring the sale to American Bankers invalid, redetermining the priority of the three mortgages along with interests, costs, and attorney’s fees, and ordering a resale of the property.

American Bankers appeals from the revised final judgment and contends (1) this court did not intend to compel a resale of the property on remand, (2) resale is not a proper mode of restitution where the property has been conveyed to a nonparty before reversal of the foreclosure sale, (3) by failing to post a supersedeas bond, Williams waived and is estopped from asserting any right to restitution, and (4) the trial court erred in allowing American Bankers interest on its mortgages only up to the date of the first judgment of foreclosure. We affirm.

A sale of property pursuant to a judgment which has been reversed on appeal is not a valid sale as to parties to that appeal. Haren v. Sundie, 233 So.2d 417 (Fla. 3d DCA 1970), cert. dismissed, 253 So.2d 857 (Fla.1971). When a foreclosure sale is set aside by an order of the court for any fatal irregularity, the title acquired by the purchaser is vacated. The law subro-gates the purchaser at the void foreclosure sale to all the rights of the mortgagee in the indebtedness and the mortgage securing the payment of the same. Bridier v. Burns, 148 Fla. 587, 4 So.2d 853 (1941).

A party against whom an erroneous judgment has been made is entitled upon reversal to have his property restored to him by his adversary. Sundie, 253 So.2d 857, supra; Florida East Coast Railway Co. v. State, 77 Fla. 571, 82 So. 136 (Fla.1919). Upon filing of the mandate of the reviewing court, the trial court has authority to take such further proceedings as may be appropriate in order to arrive at another decree which will accord with the mandate of the reviewing court. Smith v. Smith, 118 So.2d 204 (Fla.1960).

On the facts of this case a redeter-mination of the priority of mortgages without more would not have restored to Williams all his rights as holder of a second mortgage. American Bankers, as first mortgage holder, purchased the property at the foreclosure sale for $1,000.00, then sold it for $600,000.00 leaving for disbursement to Williams an amount substantially less than that of the second mortgage inclusive of interest. Restitution of Williams’ rights was properly achieved by ordering resale of the property upon reversal of the foreclosure sale by the reviewing court. See Sundie, supra, 253 So.2d at 858.

It is no bar to restitution that American Bankers sold the property to another. American Bankers was a party to the prior litigation and as between it and Williams, resale is an appropriate remedy. Sundie, supra; Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526 (1938); Simms v. City of Tampa, 52 Fla. 641, 42 So. 884 (Fla.1906). Vega, a non-party purchaser, is not a party to this action and American Bankers may not assert the defenses of another for its own benefit. Klinger, supra.

Neither is the failure to post a su-persedeas bond to stay the sale pending appellate review a bar to restitution. Even in the absence of a supersedeas bond, reversal of the judgment of foreclosure requires, as between the parties to the suit, restoration of the status quo. Sundie, supra.

The American Bankers’ fourth point on this appeal is also without merit. American Bankers is not entitled to interest on its mortgage for the period following the foreclosure sale where they were purchasers. The beneficial use of the land plus interest on the note for which the land was pledged as security would work an inequity; it would be a windfall to appellants, to the potential detriment of Williams as junior mortgagees.

We find that the trial court correctly followed the directions of this court on remand. The established procedures require a new sale with appellees having a right to exercise their right of redemption in light of the newly determined priority of mortgages. Sundie, supra.

Affirmed.

      . Additional pertinent facts are clearly set out by Judge Chappell in that opinion.

      . The date of the foreclosure sale was December 6, 1978. On that same date Williams filed a notice of appeal of the judgment. On June 21, 1979, American Bankers sold the property and conveyed title by warranty deed to Manuel A. Vega who had notice of the appeal. Vega, apparently conveyed the property during the pendency of the first appeal.

      .The amounts due on the three mortgages as of June 27, 1980 inclusive of principal, interests, and costs as determined by the trial court totaled $886,383.80 — appellant’s first mortgage, $545,432.52, appellee’s second mortgage, $93,007.49, appellant’s third mortgage, $27,-943.79.


text:
    PEDRO REALTY INC., Appellant, v. Jesus SILVA and Olga Silva, Appellees.
    No. 80-2166.
    District Court of Appeal of Florida, Third District.
    April 28, 1981.
    Rehearing Denied June 25, 1981.

      Manuel E. Oliber, Hialeah, for appellant.
    Irma V. Hernandez and Fernando E. He-ría, Hialeah, for appellees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Pedro Realty, Inc. appeals from an interlocutory order of the trial court denying a motion to vacate a default entered against it as third-party defendant. We reverse.

The action was commenced by buyer Jeanne Watson when she filed suit for specific performance of a real estate sales contract. Jesus and Olga Silva, the seller-defendants, filed an answer and third-party complaint against appellant Pedro Realty Company and its salesman. The complaint alleged duress, coercion and fraud by the salesman in inducing the Silvas to sign the listing agreement and deposit contract. The Silvas seek recision of the contract, costs, attorney’s fees, compensatory and punitive damages.

The third-party complaint was served on Pedro Realty by leaving a copy of the summons and complaint with Jose Cadi, vice-president of Pedro Realty. The summons and complaint were delivered to appellant’s counsel on Friday, September 5, 1980 one day after expiration of the time for filing a responsive pleading. On the following Monday, September 8, 1980, appellant’s attorney checked the court records and learned that a default had been entered the same day. He attempted to contact counsel for the Silvas for the purpose of obtaining a stipulation to set aside the default. He reached opposing counsel the next day, September 9,1980, only to learn that the Silvas would not enter into a stipulation. Counsel for Pedro Realty filed a motion to set aside the default on the following day, September 10, 1980, and attached an affidavit setting forth grounds for excusable neglect and filed an answer to the complaint.

The affidavit of the vice-president, Jose Cadi set forth among other things, that the person who appeared at the offices of appellant did not identify himself as being a process server, never approached nor contacted affiant but merely left the documents on a table in the office, that the person he now knows to be a process server did not identify or explain the nature of the documents he left in the office nor the reason for his presence; that he runs a very busy office and that the purpose and significance of the documents didn’t come to his attention until September 5, 1980.

In its answer, Pedro Realty generally denies the allegations of the complaint and as an affirmative defense alleges that the salesman acted outside the scope of his employment and without the knowledge of Pedro Realty or, alternatively, that the relationship of the salesman to Pedro Realty is that of an independent contractor and not employer-employee.

At the discretion of the trial court, a default may be vacated upon a showing of excusable neglect or inadvertence or other meritorious defense. Fla.R.Civ.P. 1.500(d), 1.540(b); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Miami Commonwealth Realty Corp. v. Rinehart Volkswagen, Inc., 387 So.2d 530 (Fla.3d DCA 1980); Thomas v. American Vinyl Co., 379 So.2d 448 (Fla.3d DCA 1980); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla.3d DCA 1976); Acme Fast Freight, Inc., v. Bell, 318 So.2d 212 (Fla.3d DCA 1975); Rubin v. Baker, 276 So.2d 532 (Fla.3d DCA 1973).

A defendant may not merely state that it has a meritorious defense, but must disclose such a defense in a defensive pleading or affidavit. Perry v. University Cabs, Inc., 344 So.2d 914 (Fla.3d DCA 1977); Tremblay v. Marck, 378 So.2d 855 (Fla.4th DCA 1979), cert. denied, 389 So.2d 1116 (Fla.1980).

As a general rule, a principal is not liable for actions of its agents committed outside the scope of its employment and before one may infer that the principal ratified unauthorized acts of his agent, evidence must demonstrate that the principal was fully informed or that he approved of those acts. Bach v. State Board of Dentistry, 378 So.2d 34 (Fla.1st DCA 1979); Jones v. City of Hialeah, 368 So.2d 398 (Fla.3d DCA 1979), cert. denied, 378 So.2d 346 (Fla.1979). Consistent with our holdings that discretion should be liberally exercised in granting application for vacating default judgments so as to permit a trial on the merits, Cunningham v. White, 390 So.2d 467 (Fla.3d DCA 1980); Kiaer v. Friendship, Inc., 376 So.2d 919 (Fla.3d DCA 1979), we hold that a denial contained in a responsive pleading may allege a meritorious defense so as to create an issue of fact. North Shore Hospital, supra; Bay Convalescent Center, Inc. v. Carroll, 352 So.2d 900 (Fla.1st DCA 1977) (Ervin, J., dissenting). Because Pedro Realty denied as an affirmative defense that it has knowledge of those wrongful acts of its agent or that it ever expressly, impliedly, or constructively authorized such acts, it raises questions of fact sufficient to state a meritorious defense.

We find no merit in Pedro Realty’s alternative argument. Pedro Realty may not consistently admit under Section 475.01, Florida Statutes (1980 Supp.) that the party in question is a registered salesman and that a business relationship existed between them, but that the relationship was merely one of independent contractor. See Harry Pepper & Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla.3d DCA 1971), cert. denied, 252 So.2d 797 (Fla.1971) (inconsistent allegation has the effect of neutralizing each allegation as against the other and rendering the pleading objectionable).

We hold that where Pedro Realty has not engaged in dilatory tactics, sought stipulation from the opposition to set aside default on the same day it was entered, and filed an affidavit setting forth the grounds for excusable neglect and an answer setting forth a meritorious defense, refusal to set aside default is error.

Reversed and remanded for further proceedings consistent with this opinion.

      . This court determined we had jurisdiction pursuant to Fla.R.App.P. 9.130(a)(3)(C)(iv).

      . Section 475.01(4) Fla.Stat. provides, “Salesman” means a person who performs any act specified in the definition of “broker,” but who performs such act under the direction, control, or management of another person. Paragraph five of the same act provides, “Broker-salesman” means a person who is registered as a broker, but who performs the duties of a salesman for another person, and who is designated as a broker-salesman in the registration list of the board.
      The factor which distinguishes a principal-agent relationship from an independent-contractor relationship is control and direction by the principal over the conduct of the agent. See Jones v. City of Hialeah, supra.


text:
    Evelyn BOZARTH and Ralph Bozarth, her husband, Appellants, v. Ronald BARRETO, and Travelers Insurance Company, Appellees.
    No. 80-89.
    District Court of Appeal of Florida, Third District.
    May 5, 1981.
    As Corrected July 1, 1981.
    Greene & Cooper and Sharon L. Wolfe, Post & Gordon, Miami, for appellants.
    David L. Willing, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment entered in favor of the defendants Ronald Barreto and his insurer Travelers Insurance Company [upon a jury verdict rendered in their favor below in an action brought under Section 767.01, Florida Statutes (1979)] is affirmed upon a holding that the trial court correctly denied the plaintiffs Evelyn Bozarth and Ralph Bozarth’s motion for a directed verdict at trial on the issue of liability. The cause was properly one for jury determination on liability as there was, in our view, sufficient evidence in the record for the jury to conclude, as it did, that the plaintiff Evelyn Bozarth’s injuries were not proximately caused by any aggressive or affirmative act directed against said plaintiff by the defendant’s dog, which of necessity, would also defeat the plaintiff Ralph Bozarth’s derivative claim. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978); Smith v. Allison, 332 So.2d 631 (Fla. 3d DCA 1976).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Steven Allen STANLEY, Appellee.
    No. 79-1918.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 25, 1981.
    Janet Reno, State Atty., and Arthur Joel Berger, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Mark King Leban, Sp. Asst. Public Defender, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

The State appeals from an order discharging appellee, Steven Allen Stanley, for failure to bring him to trial within the time provided by the speedy trial rule, Florida Rule of Criminal Procedure 3.191.

On August 3, 1977, Stanley was indicted and charged with two counts of first degree murder. The murders were committed on February 21, 1977. On August 4, 1977, Stanley was arrested on two charges of first degree murder. Stanley was brought to trial on the murder charges on April 3, 1978.

Testifying on his own behalf, Stanley related the following events: Stanley had been acting as a monthly drug courier for a drug dealer Robert Yuckman. In the fall of 1976, Stanley contacted several friends in New York and made arrangements for them to come to Miami and rob Yuckman. Stanley and his girlfriend were to feign being victims of the armed robbery. The robbery occurred on December 17,1976 at a time when Stanley knew money would be in the house. After receiving $18,000.00 as his share of the robbery monies, Stanley was informed that Yuckman had hired a private investigator and wanted everyone present at the robbery scene to take a polygraph test. Stanley felt that he had to kill Yuck-man before Yuckman killed him. He made a gun silencer. Stanley testified that he withdrew from the murder plan, that his girlfriend had gone to the house and killed Yuckman and Yuckman’s girlfriend. Stanley later returned to the house with his girlfriend to destroy evidence.

After a nine day trial, the jury acquitted Stanley on both counts of first degree murder. The same day, April 14, 1978, the State filed a three-count information charging Stanley with conspiracy to commit armed robbery and two counts of armed robbery. The conspiracy was alleged to have occurred between December 1, 1976 and December 25, 1976. The two robberies were alleged to have occurred between December 10, 1976 and December 25, 1976. Stanley was taken into custody on the robbery charges on December 6, 1978.

Stanley moved for discharge under Florida Rule of Criminal Procedure 3.191 on the grounds that the arrest for the February 1977 homicides was also the taking into custody for the December 1976 robberies. Stanley argued that the robbery charges are based on the same conduct or criminal episode for which he was originally arrested and that the State had no additional facts to support the new charges than it had when Stanley was arrested on the murder charges. The trial court denied discharge and Stanley sought a writ of prohibition from this court to keep the case from proceeding to trial. We denied the writ without opinion. Stanley subsequently filed in the trial court a second motion to discharge under the speedy trial rule citing as grounds for rehearing the decision of Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980), decided eight days after this court denied the writ of prohibition. In his second motion, Stanley repeats his argument that the State had probable cause sufficient to make an arrest on the robbery charges at the time Stanley was arrested on the murder charges and, in addition, claims that Stanley’s Sixth Amendment rights were violated by the intentional withholding of the robbery charges. On the basis of the Thomas decision, supra, the trial court granted this second motion and ordered Stanley discharged.

The State argues on appeal that Stanley’s second motion to discharge raises the identical issue which was presented to the court by petition for writ of prohibition and that our denial of the writ established the law of the case. We agree. Appellant’s proper course of action would have been to petition this court for a rehearing, or to seek approval of this court for rehearing by the trial court.

Nor does the Supreme Court’s decision of Thomas, supra, affect our order denying the writ of prohibition. The court in Thomas, supra, at 513 stated, “Conceding that the spirit of the speedy trial rule would not condone the withholding of some charges and an arrest on others so as to effectively extend the time periods of the rule when there is ample evidence to support probable cause as to all charges, nevertheless the record in this cause does not establish such an abuse.” The trial court erroneously concluded that where the State had the necessary probable cause to arrest and charge Stanley with the robbery charges at the time of indictment for murder, and where the robbery charges were “inextricably related” to the murder charges, Thomas, supra, requires that the robbery charges be filed at the same time as the murder charges.

Thomas, supra, does not require the State to charge a defendant with all crimes of which it has probable cause or risk dismissal under the speedy trial rule. As stated by the court in Giglio v. Kaplan, 392 So.2d 1004, 1005 (Fla. 4th DCA 1981):

Notwithstanding the provisions of the speedy trial rule, the state is not totally free to unreasonably delay the filing of charges for which probable cause to prosecute exists. The defendant’s constitutional right to a speedy trial and the spirit of the speedy trial rule prohibit the state from acting in such a manner. Thomas v. State, 374 So.2d 508 (Fla.1979). However, general due process concerns rather than specific provisions of the speedy trial rule attach to that period before a defendant has been taken into custody and charged. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).

Here, Stanley raises no due process claims and we perceive none. Nor do we find any violation of Stanley’s rights under the Sixth Amendment. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Breedlove, 400 So.2d 468 (Fla. 4th DCA 1981).

We find further, that Thomas, supra, does not apply to Stanley’s claim under the speedy trial rule. Florida Rule of Criminal Procedure 3.191 requires dismissal only when the state has failed to charge a defendant with crimes arising out of the same conduct or criminal action. State v. Breedlove, supra; Giglio v. Kaplan, supra; State v. Beasley, 392 So.2d 980 (Fla. 4th DCA 1981).

Here, it is not sufficient that the prior robbery may have triggered the fear of retaliation which was the motive for the subsequent murder. It is not enough that the conduct resulting in separate offenses be related; the conduct or episode must be the same even though it may give rise to different consequences. Walker v. State, 390 So.2d 411 (Fla. 4th DCA 1980). The conspiracy to rob and the robbery of Yuck-man constitutes one criminal episode. The conspiracy to kill and the killing of Yuck-man more than two months later constitutes a second and separate criminal episode. Not only did the robbery and subsequent murders occur more than two months apart but each involved separate conspiracies with different parties.

The order under review is quashed and the cause remanded for further proceedings consistent with this opinion.

      . Stanley v. Tanksley, 374 So.2d 110 (Fla. 3d DCA 1979).

      . See, e. g., Airvac, Inc. v. Ranger Ins. Co., 330 So.2d 467 (Fla.1976); Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965) (rehearing should not be allowed when effect is second hearing); Jones v. Knuck, 388 So.2d 328 (Fla. 3d DCA 1980) (trial court may not deviate from mandate of appellate court); Robinson v. Gale, 380 So.2d 513 (Fla. 3d DCA 1980) (trial court must follow mandate of appellate court).

      . The Supreme Court’s decision in Thomas, supra, was filed eight days after this court entered the order denying the writ leaving this court with jurisdiction for rehearing. Fla.R. App.P. 9.330.

      . See, e. g., Hallman v. State, 371 So.2d 482 (Fla.1979) (writ of coram nobis); Stuart v. Hertz, 381 So.2d 1161 (Fla. 4th DCA 1980) (absent permission, trial court has no authority to alter or evade mandate of appellate court).

        .See note 1, supra.


text:
    James W. DOUD, Appellant, v. YELLOW CAB COMPANY OF MIAMI, INC., a Florida Corporation, Manuel Lopez, Southeastern Fidelity Insurance Company, a Foreign Corporation and Alliance Insurance Company, a Foreign Corporation, Appellees.
    Nos. 80-1160, 80-1661.
    District Court of Appeal of Florida, Third District.
    May 12, 1981.
    Rehearing Denied June 25, 1981.
    Fred A. Harrison, Jr. and M. J. Kortis, South Miami, for appellant.
    Thompson & Clark and Robert Schwartz, Miami, for appellees.

      Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Straker v. Lynch, 335 So.2d 356 (Fla. 4th DCA 1976); Westbrook v. All Points, Incorporated, 384 So.2d 973 (Fla. 3d DCA 1980).


text:
    The CITIZENS of the STATE OF FLORIDA, Appellants, v. FLORIDA PUBLIC SERVICE COMMISSION, Appellee.
    No. XX-73.
    District Court of Appeal of Florida, First District.
    May 18, 1981.
    Rehearing Denied July 1, 1981.
    Jack Shreve and J. Roger Howe, Tallahassee, for appellants.
    Arthur Canaday and Virginia Daire Re-ber, Tallahassee, for appellee, Florida Public Service Commission.
    R. M. C. Rose, Martin S. Friedman, and William E. Sundstrom, Tallahassee, Howard C. Osterman, Margate, and Herbert L. Gil-dan, West Palm Beach, for appellee, Seacoast Utilities, Inc.
   PER CURIAM.

AFFIRMED. See Citizens of the State of Florida v. Florida Public Service Commission et al., 399 So.2d 9 (Fla. 1st DCA 1981).

SHIVERS and WENTWORTH, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


text:
    Kevin Earnest WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-685.
    District Court of Appeal of Florida, Third District.
    May 19, 1981.
    Rehearing Denied June 25, 1981.
    Bennett H. Brummer, Public Defender and Bernard Braverman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Upon considering the briefs and record in this case, we determine that the appeal must be dismissed. A defendant may not appeal from a judgment entered upon a plea of guilty. Bryant v. State, 377 So.2d 208 (Fla. 1st DCA 1979); Bridges v. State, 376 So.2d 233 (Fla.1979); Robinson v. State, 373 So.2d 898 (Fla.1979); Adams v. State, 371 So.2d 150 (Fla. 1st DCA 1979); Fla.R.App.P. 9.140(b). Nor may a claim of ineffective counsel be raised for the first time on appeal. State v. Barber, 301 So.2d 7 (Fla.1974): Kidwell v. State, 394 So.2d 526 (Fla. 3d DCA 1981); Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981); Randall v. State, 346 So.2d 1233 (Fla. 3d DCA 1977).