text:
    Raymond MILLS v. STATE.
    6 Div. 273.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Roger A. Brown of McDonald & Brown, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Appellant was indicted by the July 1978 Jefferson County Grand Jury for first degree arson. He was brought to trial before a jury on July 30, 1979. After testimony began, but before the jury retired, it became apparent that a possible variance existed between the indictment as drawn and the State’s evidence. The appellant moved to exclude the State’s evidence based upon this assumption of variance. The State’s request for a voluntary amendment to the indictment was refused by the appellant, whereupon the court dismissed the prosecution and ordered that another indictment be prepared. Appellant was subsequently indicted by the September 1979 Jefferson County Grand Jury for arson with intent to defraud an insurance company. After entering a plea of not guilty at arraignment, appellant entered a plea of former jeopardy. Appellant’s plea was denied and he was tried before a jury and found guilty. The trial court sentenced' appellant to three years’ imprisonment to be served by six months’ imprisonment and thirty months’ probation. This appeal followed.

The appellant’s brief contains a thorough and accurate presentation of the voluminous trial testimony and was adopted by the State in its brief as its own. This opinion therefore relies substantially on appellant’s brief in its statement of facts.

The State’s primary witness, Kenneth M. “Pete” Thomas, testified he went to appellant’s office in the Life and Casualty Building on 6th Avenue South in Birmingham, Alabama in January of 1978, where appellant told him he knew a man who would pay $1000 to have his house burned. Thomas would not perform the service for that amount, so appellant gave Thomas a telephone number of a man named Tom to call, in order to make his own arrangements. Appellant wanted $500 for the phone number. Thomas took the number, left appellant’s office, went to a phone booth and called Tom. He quoted a price of $2500 to Tom, who told Thomas to call him back in a couple of days. Thomas called again on Thursday at which time Tom agreed to the $2500 fee. Thomas told Tom to have a key made and leave it at appellant’s office for Thomas to pick up and also to have half the money ready Friday night.

On Thursday, Thomas talked to Ross Donahue and James Edward Miller and offered them $750 each to burn the house. On Thursday afternoon, Thomas drove to appellant’s office in his automobile, accompanied by Cecil Foote, Miller, and Donahue. Thomas went into appellant’s office and a secretary gave him a white envelope containing the key, while the other three men waited in the vehicle. After returning to the automobile, Thomas opened the envelope and removed the key in the presence of the other men.

Thomas left Miller and Donahue at 6:30 or 6:45 on Friday and drove to the Golden Rule Bar-B-Que in Irondale. Tom McCoy, the owner of the house to be burned, arrived between 7:00 and 7:05 p. m. McCoy said he did not have the money, but he would guarantee it for Monday. Thomas told McCoy he did not know if the other men would do the job without the money. This prompted McCoy to place a telephone call from the Golden Rule, after which Thomas took the receiver and spoke with a voice he recognized as that of appellant, who told Thomas the money was guaranteed and to go ahead with the deal. McCoy then gave Thomas directions to his house in Leeds, Alabama. Thomas left and returned to Donahue and Miller and explained the situation to them.

Later that evening the three men rode by McCoy’s house and observed McCoy, a woman and child getting into an automobile. The three men then returned to the house of Thomas’s ex-wife and remained there until 11:30 p. m. They then left and purchased gasoline which they pumped into a five gallon can and two plastic jugs. Thomas drove to a point near McCoy’s house and parked. Miller and Donahue then walked toward McCoy’s house with the key and gasoline. Ten minutes later they returned to the automobile with the can and jugs. Thomas drove to Highway 78 where he threw away the key and can, then returned to see that the house was burning.

Monday afternoon following the fire on early Saturday morning, Thomas called appellant from a phone booth, and then went to appellant’s office. Appellant gave Thomas $2500 in cash. Thomas paid appellant $750 and then left and paid Miller and Donahue $500. Three weeks later Thomas was arrested by the Mountain Brook police. Officer Don Isaacs photocopied an address book belonging to Thomas, which Thomas identified at trial. Thomas later threw the original book away.

Cecil Foote testified he rode with Thomas, Miller and Donahue to the Life and Casualty building on Sixth Avenue next to Carlile’s Bar-B-Que in Birmingham in January of 1978. Thomas got out of the automobile and went toward the building while the other three men remained in the vehicle. Some fifteen minutes later Thomas returned, got into the automobile, said “here it is,” and placed a key in his shirt pocket. They drove away and Foote left the automobile a short while later.

Mark Lawley, a Leeds firefighter, and the first to arrive at the McCoy house fire on January 28, 1978, shortly after 2:00 a. m., found the front door unlocked. He stated the response of the fire to water sprayed upon it was consistent with that of a fire of gasoline origin.

Ross Donahue testified he accompanied Thomas and Miller to an insurance company on 36th Street and Seventh Avenue. Thomas got out of the vehicle and returned after ten minutes. Donahue did not recall Thomas having anything in his hands when he returned to the vehicle. He stated that later that day they went to Miller’s and got a five gallon can. They got two more cans from Annette Wells’s house, and then proceeded to drink and drive around the remainder of the day. Later, Thomas left Miller and Donahue at an omelet shop and returned thirty minutes later saying he “didn’t get no money.” They again returned to Annette Wells’s house and continued to drink until 11:30 p. m., after which they went to Leeds. Thomas parked the automobile and Donahue and Miller walked to the McCoy house. The two men used a key to enter through the front door, and then doused the house with seven gallons of gas. They ignited the gasoline and ran back to the automobile. The three then drove out toward Rose Hill and threw away the key and two cans. They returned to the scene to see that the house was burning, and then left. The following Monday Donahue and Miller both received $250 from Thomas.

Kirk Langston, a handyman working for Thomas McCoy, stated he removed furniture, equipment, and automobiles from McCoy’s house at McCoy’s request the day before the house burned.

Don Issacs, a Mountain Brook police officer, arrested Thomas on February 17, 1978, at which time he photocopied pieces of paper from Thomas’s billfold containing phone numbers. He also identified the photocopy of Thomas’s note book, which was then admitted into evidence.

Richard Serviss, a State Farm claims representative, testified the McCoy house was insured by State Farm and that McCoy had filed a proof of loss claim. Serviss’s opinion, after having examined the house remains numerous times, was that the fire originated from a flammable liquid.

After an extended discussion, the court allowed into evidence a Tennessee birth certificate certifying the birth of Raymond L. Mills, appellant, to Annie Mae Glasful and William L. Mills in Nashville, Tennessee.

Glenora Winn, a South Central Bell employee in Nashville, Tennessee, testified as custodian of records that Nashville telephone number 615-292-6385 was the number of W. L. and Annie Mae Mills, and that their records reflected the following phone calls for that number.

1-26-78 7:43 p.m. 1-27-78 6:02 p.m. 1-27-78 6:14 p.m. > 205-699-7810 5 minutes » 205-699-7810 1 minute i 205-699-7459 6 minutes

E. J. Samples, Leeds Telephone Company’s Commercial Manager, stated Thomas McCoy’s home phone number was 699-7810, and that Motion Enterprises number 699-7459, was listed at the same address. His records reflected the following calls for number 699-7459

1-26-78 5:14 p.m. 1-26-78 6:23 p.m. 1-27-78 10:34 a.m. 1-27-78 3:01 p.m. To 615-292-6385 3 minutes To 615-292-6385 5 minutes To 615-292-6385 4 minutes To 205-553-1231 4 minutes
1-27-78 4:04 p.m. 1-25-78 7:25 p.m. To 615-292-6385 1 minute To 615-832-8091 7 minutes

George A. Davis, South Central Bell Business Office Manager in Birmingham, testified telephone number 923-0939 was the number of Barbara C. Miller and 956-9891 was the number of the Golden Rule Bar-B-Que. Diane Doyle, identified by Thomas as his daughter, was assigned the telephone number 780-5124. Mr. Davis’s records indicated the following calls were charged to 780-5124:

PM 956-9891 1-27-78 6:54 p.m. To 615-292-6385 4 minutes FM 923-0939 1-28-78 2:43 p.m. To 615-292-6385 1 minute

Ken Sanders, a loan officer with Central Bank, testified the McCoy’s had a second mortgage loan for $25,000 which was two months past due as of January 28, 1978.

George Townsend, custodian of records for Birmingham Federal Savings and Loan, stated Birmingham Federal held a $55,000. first mortgage on the McCoy residence which was two months past due on January 28, 1978.

Grover Dunn, a chemical engineer, testified the results of scientific tests on samples from the burned McCoy house indicated the fire was a gasoline fire.

Wendell Stewart, district sales manager of Life and Casualty Company of Tennessee, testified appellant worked in the company office at 3601 Sixth Avenue South in Birmingham in January of 1978.

The State rested at the close of Mr. Stewart’s testimony. Appellant’s motion to exclude the State evidence for failure to make out a prima facie case was denied by the trial court.

Brenda Hasty and Paulette Mewborne, testifying for the defense, stated they were the only two secretaries employed in appellant’s office in January of 1978 and neither one recalled giving Thomas an envelope or key.

Raymond Mills, testifying on his own behalf, stated he knew both McCoy and Thomas. He was in Nashville, Tennessee from Wednesday through the Saturday the fire occurred. He had talked to McCoy from the Nashville phone during this time, but the conversations pertained to a joint venture on building speculative housing in Moody, Alabama.

Willie Mae Long, a resident of Nashville, Tennessee, and friend of appellant, testified appellant and his wife were at her house the Friday night and Saturday morning of the weekend the fire occurred.

Walker Norris, a Birmingham area attorney testified the appellant called him at home on Saturday afternoon from Nashville, Tennessee.

After calling rebuttal witnesses, the State rested, followed by the defense.

I

The immediate case closely parallels the companion case of McCoy v. State, Ala.Cr.App., 397 So.2d 577, cert. denied, Ala., 397 So.2d 589 (1981), and our decision herein is based upon the identical reasoning which mandated reversal in McCoy.

At the close of the State’s case, the appellant moved to exclude the State’s evidence based upon the State’s failure to produce evidence sufficiently corroborative of the accomplice’s testimony. After a lengthy hearing, the trial court overruled appellant’s motion. While our review of the correctness of a trial court’s determination of a motion to exclude the evidence may only consider that evidence already before the court at the time the motion is made, we must yet consider that evidence in the light most favorable to the State’s case. Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979); Kent v. State, Ala.Cr.App., 367 So.2d 508 (1978), cert. denied, Ala., 367 So.2d 518 (1979).

The method used in determining the sufficiency of evidence corroborative of accomplice testimony is that of a “subtracting process.” McCoy, supra. The rule governing the determination of sufficiency is codified in Alabama Code 1975, Section 12-21-222 as follows:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

The formula applying the rule requires that evidence of the accomplice must first be “subtracted” and then, if upon the review of all other evidence before the court at the time of the motion, there is found to be sufficient incriminating evidence which would tend to connect the defendant with the commission of the offense, sufficient corroboration exists. Craig v. State, Ala.Cr.App., 376 So.2d 803; Ala., 376 So.2d 807 (1979); Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). However, the corroborative evidence need not refer to any statement or fact testified to by the accomplice. Neither must it be strong nor sufficient of itself, to support a conviction. The probative value of the evidence need .only legitimately tend to connect the accused with the crime and need not directly do so. Further, corroborative evidence need not directly confirm any particular fact nor affirm each and every material fact testified to by the accomplice. Corroboration may be proven by circumstantial evidence alone. Craig, supra.

The State at trial relied on the following six points of evidence as being sufficiently corroborative of the accomplice testimony of Thomas and Donahue to sustain the trial court’s ruling: (1) The notebook found in Thomas’s billfold and the contents thereof, including the names and telephone numbers of McCoy, appellant, Barbara Miller, and Thomas’s ex-wife, Joyce; (2) The testimony of Cecil Foote concerning a key he observed in Thomas’s possession; (3) McCoy’s financial condition as his motive for having his house burned; (4) McCoy’s action in having certain valuable or uninsured items removed from his home on the Friday preceding the fire; (5) Circumstantial evidence of telephone calls made to and from various involved parties, including those to the appellant in Nashville; (6) The lack of evidence of other telephone calls between McCoy and the appellant in Nashville, other than during the period during which the fire occurred.

Thomas’s personal memoranda and notebook containing the telephone numbers of appellant, McCoy, Barbara Miller, and Joyce Thomas cannot be used as corroborative evidence of Thomas’s testimony. The notebook was not shown to contain writings made by the appellant. Bather the memo-randa were shown to have been prepared by the accomplice, Thomas, himself. Because an accomplice may not corroborate himself, real evidence, such as the written phone numbers herein, may not be used to corroborate an accomplice’s testimony where the only testimony authenticating that evidence is that of the accomplice. McCoy, supra.

The testimony of Cecil Foote is proffered by the State as corroborative evidence of Thomas’s testimony concerning the receipt of a key to McCoy’s home from the appellant’s secretary. Foote, however, did not actually observe Thomas receive the key, nor did he have any knowledge, either independently or through Thomas, of the key’s origin or its intended or actual use. All Foote was able to testify to was that Thomas had a key when he returned to the automobile from the direction of the Life and Casualty Building, that Thomas stated “here it is,” and then put the key into his pocket. Foote’s testimony, taken alone and without the aid of Thomas’s testimony, tends in no way to link appellant with the offense. There is nothing in Foote’s testimony standing alone to connect the appellant with the preparation, receipt, or use of the key by Thomas.

“The tendency of the corroborative evidence to connect accused with the crime, or with the commission thereof, múst be independent, and without the aid, of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect accused with the offense only when given direction or interpreted by, and read in conjunction with, the testimony of the accomplice.” 23 C.J.S. Criminal Law, Section 812(b) (1961).

McCoy’s financial condition does tend to show a motive for McCoy having his residence burned. But McCoy’s motive alone does not satisfy the requirement for corroboration of accomplice testimony. McCoy, supra. Further, though it may tend to connect McCoy with the crime it in no way tends to independently connect the appellant with the crime as the law requires. The same is true for evidence concerning the removal of items by McCoy from his residence. While that evidence may cast some suspicion on McCoy, it has no probative value tending to connect the appellant with the crime.

The circumstantial evidence of telephone calls, or the lack thereof, among the various parties during the time period of the fire does tend to corroborate factual details of Donahue and Thomas’s testimony. However, this evidence fails to meet the statutory requirement of corroboration because it does not tend to connect the appellant with the crime when considered independently of accomplice testimony. While the telephone calls do tend to link the appellant with McCoy, Thomas, and the other accomplices, they do not independently connect the appellant with the commission of the crime. Without the testimony of one of the accomplices explaining the nature and content of the calls, the calls have no probative value tending to connect the appellant with the crime itself. McCoy, supra.

In short, there is no item of evidence, standing alone and apart from the accomplice’s testimony explaining that evidence, which tends to connect the appellant with the crime. The key, the telephone calls, McCoy’s motive — none of these have any meaning or explanation in the absence of testimony from an accomplice to the crime. The evidence presented in the instant case does no more than to create a strong suspicion of guilt, while failing to produce independent facts which tend to connect the appellant with the commission of the offense. McCoy, supra. Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947).

The defendant’s motion to exclude the State’s evidence should have been granted by the trial court. Because a second trial is barred by the double jeopardy clause of the Constitution, we pretermit discussion of other issues raised in appellant’s brief. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The judgment is reversed and judgment is here rendered dismissing appellant from further proceedings in this cause.

REVERSED AND RENDERED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Larry James KNIGHT v. STATE.
    1 Div. 318.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.

      J. Donald Banks of Loveless & Banks, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannon, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

Knight appeals to this Court from an order of the Circuit Court of Mobile County revoking his probation.

The record affirmatively shows that Knight never received written notice of the claimed violations of probation from the record:

“MR. BANKS (Defense Counsel): Judge, we would move to dismiss this proceeding. There’s been no showing that the Defendant has ever been served with any notification of what the proceeding’s about or what he’s being charged with or why his probation is seeking to be revoked. I think that’s a requisite element for any probation revocation.
“THE COURT: You don’t have a copy of the delinquency report?
“MR. BANKS: No, sir, I don’t have any copies of it.
“THE COURT: Well, you knew the case was set today, and it was set on a revocation hearing; did you not?
“MR. BANKS: Would Your Honor like for me to testify as to how I knew it was set?
“THE COURT: Yes, if you .. .
“MR. BANKS: Well, I saw it on the docket sheet, Judge. That’s — I didn’t know anything as far as personal knowledge or have any reports or any charge sheets, I have nothing. I just knew that it was set today.
“THE COURT: Is there anything else that you would present to me if you had had notice, the Defendant had been served, assuming he has not?
“MR. BANKS: Well, Judge, I don’t know what I would have presented. However, I just submit that it’s requisite for a revocation that the Defendant be served with the notification.
“THE COURT: Motion to dismiss is denied.”

In Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), the Supreme Court of this State set forth “the requirements and guidelines which must be met for minimal due process to be accorded the probationer under Morrissey (Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon (Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)) before his probation can be revoked.” Armstrong, 294 Ala. at 102, 312 So.2d 620. The very first requirement is “(w)ritten notice to the probationer of the claimed violations of probation.” Armstrong, 294 Ala. at 102, 312 So.2d 620.

The Attorney General argues: “The Defendant was represented by an attorney at his probation revocation hearing. Thus, his claim that he did not have notice of the proceedings is without merit.” This argument is without merit. Counsel need not be appointed in every revocation hearing. See guideline number 8, Armstrong, 294 Ala. at 103, 312 So.2d 620. Appointment of counsel does not in and of itself satisfy the requirement of written notice of the claimed violations of probation.

The requirements of Armstrong are exceedingly clear. This matter was brought to the attention of the circuit court and could have been corrected at that time with only a minimum of inconvenience and expense to all concerned parties. The judgment of the circuit court revoking Knight’s probation is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Perry Anthony BATEMAN v. STATE.
    4 Div. 885.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Cada M. Carter of Byrd, Carter & Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Appellant was indicted by the Houston County Grand Jury for arson in the first degree, in violation of § 13A-7-41, Code of Alabama (1975 Supp.1977). At arraignment, appellant pleaded not guilty, and was subsequently tried before a jury. At the conclusion of all testimony, the trial judge excluded the offense of arson in the first degree from the jury’s consideration, and charged the jury only as to attempted arson in the first degree. The jury found appellant guilty and the court sentenced him to twelve years’ imprisonment. This appeal followed the trial court’s denial of appellant’s motion for new trial.

Ray Tindall, a supervisor at the Hedst-rom Company in Dothan, Alabama discovered a smoldering fire in a small office of the Hedstrom plant on the evening of October 24, 1980 at approximately 8:30 p. m. The fire was caused by a small space heater which had been placed on a desk, turned on, and draped with a large IBM printout. At the time this fire was discovered, there were approximately 75 people working in the Hedstrom plant. Tindall quickly smothered the fire with a cushion, thereby confining the damage to the heater and the scorched desk top. Tindall also testified that appellant, who was employed at Hed-strom, had recently received a demotion in his job at the plant.

Security guard Patsy Pharr was working at Hedstrom the evening of October 24, 1980 when she observed the appellant on top of a fire pump house looking into a Hedstrom plant window. The appellant was not authorized to be on the Hedstrom property during the time Ms. Pharr observed him. Ms. Pharr approached appellant and called him by name. Appellant denied his identity, but when confronted further he admitted he had climbed a fence to gain admittance. Appellant first refused to accompany Ms. Pharr to the guard station, but then complied. On the way to the guard station, appellant asked Ms. Pharr if she had seen the mess in Bobby Glover’s department of the plant, and she replied “no.” At the guard station, Ms. Pharr had security guard Kathy Burnham call the plant supervisor, Joe Cotton. She further testified there were people in the building into which appellant was peering when she first observed him. Also, appellant appeared to her to have been drinking, but' was not extremely intoxicated.

Cathy Burnham, another security guard at Hedstrom, testified she saw the appellant on the evening of October 24,1980. At 6:30 p. m. he appeared at an entrance to Hedstrom and requested to enter to see a fellow employee, Jeff Peterman. Appellant did not appear to have been drinking. Because appellant was off duty, he was not allowed to enter the premises, according to company policy. Appellant phoned Peter-man who came to the gate. Peterman conversed with appellant, and signed back in at 6:50 p. m. Appellant then left the area. Later that evening, at approximately 8:55 p. m., Ms. Burnham saw appellant in the custody of security guard Pharr as Pharr returned from plant rounds. At this time she noticed the odor of alcohol on appellant. Ms. Burnham contacted Bobby Glover and proceeded with him to his department in the plant. .Upon arriving there she detected the odor of something burning. The floor was covered with a liquid substance with a strong odor. An oven which was used to bake the finish on furniture was turned on. The conveyor belt, however, was turned off. Mr. Bobby Glover testified the ovens referred to by Ms. Burnham contained several chests of drawers, close to the point of igniting into flame. Glover testified he had been appellant’s supervisor, but that appellant had been transferred out of his shop. The liquid which he and Officer Burnham observed on the floor was approximately ten gallons of a highly flammable and explosive lacquer thinner. When he left the plant earlier, the buckets of thinner had been stacked with lids placed upon them to prevent the possibility of fire. Glover also observed that a lacquer thinner spray hose had been cut. He also stated 75 to 100 people were working on the night shift that evening.

Ralph Wilson Lingo, a Hedstrom employee, testified appellant had told him about week before the arson attempt that because he had been transferred, he was going to get even for the transfer.

Jeffrey Allan Peterman, another Hed-strom employee, corroborated security guard Burnham’s testimony as to appellant’s having called him to the plant gate the evening of October 24, 1980. Appellant told Peter-man at that time he would get even with the people who transferred him. Appellant did not appear to have been drinking. Pe-terman stated appellant knew he was returning to the building after the conversation with him and that he was working the evening shift. Peterman was at work in the building between 8:00 and 9:00 p. m. that evening.

Mike Gilley, an investigator in the criminal division of the Houston County Sheriff’s Department, took a statement from appellant at 12:25 a. m. on October 25, 1980 at the Houston County Jail. Appellant was given his Miranda warnings and there was no inducement or coercion employed in obtaining the statement. Appellant admitted jumping the fence to gain entrance to the Hedstrom facility. He stated he accidentally tripped over a bucket of paint thinner behind the oven unit, and that he did cut the lacquer spray hoses with a pocket knife. He denied turning the oven on, however. He said he did place some paper on top of a heater on a desk and turned on the heater, prior to spilling the thinner in another part of the building. After spilling the thinner he ran outside and was caught by Officer Pharr. He stated he did what he did for “pure meanness,” because he felt Hedstrom had cheated him out of his job by demoting him. At the end of this statement he added, “... well, there ain’t no sense in saying I tripped, because they won’t believe me. So, I did pour the thinner out.” Officer Gilley stated the appellant did not appear to be intoxicated at the time he gave the statement. The State rested at the conclusion of Officer Gilley’s testimony.

Appellant’s motion to exclude the State’s evidence for failure to prove a prima facie case was denied by the trial court, and the defense called the appellant Perry Anthony Bateman to testify in his own behalf. Appellant testified he was employed with Hedstrom for three years before the arson incident. He had recently been demoted from operating an oven to hand sanding on a production job. He admitted talking to Peterman at the plant gate for the purpose of making a car payment to Peterman, but denied making any threat about the plant. He stated he had been drinking quite heavily, and had recently been hospitalized for a drinking problem and an ulcer. After he talked to Peterman he consumed more alcohol, then returned to Hedstrom and jumped the fence to make a further payment to Peterman. He tripped over the thinner while looking for Peterman. Appellant denied turning on the oven, but admitted turning on the heater on the desk, and cutting the lacquer hose lines. He could not remember if he placed the IBM printout on the heater. Appellant stated he did not intend to start a fire at the Hedstrom Building.

Joan Bateman, appellant’s wife, testified her husband had a drinking problem and an ulcer. The defense then rested.

I

Appellant argues the trial court erred in failing to charge the jury on the offenses of attempt to commit arson in the second and third degrees. We note first that the court charged the jury that the appellant could not, as a matter of law, be found guilty of the crime of arson in the first degree because there was no evidence presented of any actual damage to the building involved. He therefore properly limited his charge to the crime of attempt to commit arson in the first degree. See § 13A-1-9 and § 13A-7-41, Code of Alabama (1975) (as amended 1977); Chavers v. State, Ala., 361 So.2d 1106 (1978). Appellant submitted no written requested charge on attempt to commit arson in the second or third degree. Because the appellant failed to submit appropriate written charges on attempt to commit the crime charged, it was not error for the trial court to refuse to charge the jury on these possible lesser included offenses. Harville v. State, Ala. Cr.App., 386 So.2d 776 (1980). Where the trial court’s charge to the jury is not as full as counsel may desire, his only remedy is to request written charges covering the missing matter. While the defense attorney here did orally except to the failure of the court to charge as requested, such an exception can reach only the statements of the law made by the court, and not statements of the law omitted by the court’s charge. Harville, supra; Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979). Therefore, no error was preserved for review in this matter, and we pretermit discussion of the substantive issues of appropriate lesser included offenses of the crime of arson in the first degree.

II

Appellant contends the trial court should have granted his motion to exclude the State’s evidence for failure to prove a pri-ma facie case, in that the State failed to prove any actual damage to the Hedstrom building. The trial court expressly found as a matter of law that no damage was proven by the State’s case. While it appears that § 13A-7-41 Code of Alabama (1975) (as amended 1977) does require some actual harm or injury to the building which diminishes or impairs its value, § 13A-1-9 Code of Alabama (1975) (as amended 1977) specifically provides that an attempt to commit the offense charged may be a lesser offense included in the offense charged. § 13A-1-9 reads in pertinent part as follows:

“(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or solicitation to commit the offense charged or to commit a lesser included offense; or
(3) It is specifically designated by statute as a lesser degree of the offense charged; or
(4) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interests, or a lesser kind of culpability suffices to establish its commission.. . . ”

We therefore find the trial judge acted appropriately in excluding arson in the first degree from the jury’s consideration and charging instead on the lesser included offense of attempted arson in the first degree.

Ill

Appellant asserts the trial court erred in denying his requested written charges dealing with the exculpatory effect of intoxication on the crime charged. We note first that several of the charges requested by the appellant were ungrammatical, contained misspelled or misused words which would tend to confuse the jury, or were not predicated upon the evidence, and were therefore properly refused on those grounds. Bascom v. State, Ala.Cr.App., 344 So.2d 218 (1977). Additionally, the trial court in its oral charge went to great and exacting lengths to instruct the jury correctly on the exculpatory effect of intoxication upon the crime charged. Barnes v. State, Ala.Cr.App., 361 So.2d 390, cert. denied, Ala., 361 So.2d 396 (1978).

In order to be guilty of an attempt to commit the crime charged, the defendant must act with the intent to commit the specific offense charged. Section 13A-4-2, Code of Alabama 1975 (As amended 1977). The court instructed the jury that voluntary intoxication on the part of the defendant which would render him incapable of forming the necessary specific intent would entitle him to an acquittal of the crime of attempt to commit arson in the first degree. The law and the facts were therefore fairly placed before the jury, and it was their province to determine the existence and extent of any intoxication on the appellant’s part. Strong v. State, 52 Ala.App. 237, 291 So.2d 325 (1974).

We have searched the entire record and find no error prejudicial to the substantial rights of the appellant. Therefore, the judgment of conviction by the Houston Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Alberta E. GOODE v. STATE.
    4 Div. 931.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Winn S. L. Faulk, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Appellant was convicted in the district court of assault in the third degree per § 13A-6-22, Code of Ala.1975, as amended. She was fined $250 and costs, and this appeal comes directly to this court pursuant to Code § 12-12-72(1).

We find an adequate statement of the facts recited in the State’s brief which we hereinbelow set out, omitting the record page references therein:

“Stevie Walden, an eighth grader at Cottonwood High School at the time of the event in question, testified that on the morning of May 15, 1981, he was in his homeroom class and Appellant was his teacher. He stated that he went to Appellant’s desk and picked up her thermos and asked her what was in it. Walden testified that Appellant told him to put her thermos down, walked over to him, stuck him in the arm with a pencil and swung her grade book at him. Walden said he told her to ‘get her ass out of my way’ and then walked to Coach Tew’s office. Walden further testified that Coach Tew treated his wound and took him to the hospital emergency room, where his wound was checked for lead and dressed.
“In addition, Walden testified that he had placed Appellant’s thermos back on her desk before she struck him, and she struck at him in an overhanded manner with the pencil clasped in her palm.
“Marty Sizemore, Dewayne Efford, Michael Price, and Fred Hardwick, Walden’s fellow classmates who witnessed the incident, all testified to substantially the same events as did Walden.
“Appellant, Alberta Goode, testified that the students who testified against her, including Stevie Walden, had been involved in discipline problems in her class prior to the incident in question.
“Appellant also testified that on May 15,1981, she was standing in the doorway of her classroom with her grade book and a pencil in her hand supervising students when a student yelled, ‘Mrs. Goode, Stevie has your thermos.’ Appellant stated that she knew there was liquid in the thermos, and that the top of the thermos was almost open. In addition, Appellant stated that her desk was filled with test papers, reports, and stencils which had been typed for her tests, which would have been ruined had they come in contact with the liquid in the thermos.
“Appellant further testified that because of the danger to her papers, she rushed to her desk and pushed his hand so he wouldn’t spill the contents of the thermos, but that she was not aware that her pencil was still in her hand or that she had injured Walden.”

The district court judge, to find the appellant guilty, must have found from the evidence that the appellant caused “physical injury” to another either (1) intentionally; or (2) recklessly; or (3) with criminal negligence by means of a deadly weapon or dangerous instrument. Code § 13A-6-22(a)(1), (2), (3). “Physical injury” is an indispensable element of the offense charged and is defined by Code § 13A-1-2(8) as: “Impairment of physical condition or substantial pain.”

Stevie Walden testified that he played football, and the pencil wound did not hurt as much as a block, kick or “lick” on the football field. He stated only that “it hurt.” There was absolutely no evidence of any. “impairment of physical condition” presented in the trial, and the only evidence going toward the required element of “substantial pain” was simply that “it hurt.” In fact, the testimony of the complaining witness shows that the pain inflicted was not substantial. The evidence therefore failed to establish an essential element of the offense charged, and the district court erred in overruling appellant’s timely and specific motion to exclude the State’s evidence on this ground.

Counsel for appellant contends in brief that the State’s evidence was such that a lesser charge of harassment should have been brought per Code § 13A-11-8 rather than the instant charge. We make no comment on the propriety of any other charge, but only find that the State knew the necessary elements it was required to prove when it elected to proceed with the instant offense charged. Its evidence was well short of its burden of proof, and the instant conviction and judgment cannot stand. The cause must be reversed and rendered pursuant to Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

REVERSED AND RENDERED.

All the Judges concur.


text:
    Richard Carl YOUNG and Edward Wayne Young v. STATE.
    5 Div. 605.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.

      Charles Ned Wright, Wedowee, for appellants.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendants pled guilty to three separate indictments charging them jointly with robbery in the first degree, theft in the first degree, and kidnapping in the second degree. Sentences were twenty-five years’, ten years’, and five years’ imprisonment respectively.

On appeal the defendants argue that there is no factual basis in the record to support the kidnapping convictions.

In Clark v. State, 294 Ala. 485, 318 So.2d 805 (1974), it was stated:

“In a plea of guilty proceedings the judge should undertake a factual inquiry to determine if the plea is voluntarily made with an understanding of the nature of the charge and the consequences of the plea. Further, the judge should be satisfied that there is a factual basis for the plea. See Fed.Rule Crim.Proc., Rule 11; ABA Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Secs. 1.3-1.8, at 22-36.”
294 Ala. at 488, 318 So.2d 805 (emphasis added).

This is in accordance with the admonition contained in footnote 7 of Boykin v. Alabama, 395 U.S. 238, 425, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969), that the “trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands ... the acts sufficient to constitute the offenses for which he is charged.”

Rule 11 of F.R.C.P. establishes the procedures that federal courts must follow to ensure that a plea of guilty is voluntary. Before a federal judge can enter judgment, Rule 11(f) requires the judge to determine on the record that a factual basis for the plea exists. Willett v. Georgia, 608 F.2d 538 (5th Cir. 1979). However, Rule 11 procedures are not constitutionally mandated. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Although Rule 11 does not apply to state proceedings, due process requires state courts to assure that guilty pleas are made voluntarily and intelligently. Boykin, supra.

While the defendants did not personally state facts which would show that a kidnapping occurred, the trial judge had other information available which was sufficient to satisfy him of the factual basis of the plea. See United States v. Dayton, 604 F.2d 931 (5th Cir. 1979). The Report of Pre-Sentence Investigation states in pertinent part:

“Kidnapping 2nd: In the course of the robbery of Gary Gabbard, Edward Young and Richard Young decided that they would abduct Gabbard. He was forced to get into his 1971 Dodge Demon automobile at gunpoint. As soon as he got in the car, he climbed out the other side. He was then forced into the car a second time. He once again got out. The third time he was struck in the head with a tire tool and forced into the car. At this point another car pulled into the parking lot and Gabbard got out of the car and got away from the Youngs.”

The record shows that both defendants knowingly and intelligently waived their constitutional rights under Boykin, supra. Their admissions of guilt were without reservation, unqualified and unequivocal. The defendants admitted in answer to the questions of the trial judge that they understood that kidnapping in the second degree was “taking a person and restraining his liberty without any threats or anything.” Where the offense is simple and the charge is quite specific, even Rule 11(f), requiring that the judge determine that there is a reasonable basis for the plea, may be satisfied by the reading of the charge. Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980).

In order to insure that a guilty plea is made knowingly and intelligently, it is not necessary that the factual basis of the plea be established through the statements of the defendant where there is other information before the trial judge from which he can make this determination. An accused may plead guilty without admitting the acts of the crime if he intelligently concludes that his interest so requires and the record strongly evidences guilt. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

Considering the entire record, this Court is convinced that the defendants’ guilty pleas were knowingly and intelligently entered. Upon the record before this Court it is clear that the trial judge had before him adequate information to satisfy himself of the factual basis for the pleas. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . When asked what he did, Richard Young stated:
      “I went to the station that Mr. Gabbard was working at and got the money from him, got his car and ran.” Edward Young stated: “I went to the station. I robbed the man, got his car and ran.”


text:
    Tommy Earl LOWE v. STATE.
    6 Div. 571.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Roger C. Appell, Birmingham, for appellant.

      No brief for appellee.
   BOOKOUT, Judge.

Robbery, first degree; sentence: twenty years’ imprisonment.

The appellant’s inculpatory statement was admitted into evidence over his motion to suppress and his objection that the Miranda warning given him was incomplete and thus defective. The Attorney General tacitly admits error by filing the following statement with this court:

“Due to the Miranda predicate laid below, the State respectfully declines to submit a brief in the above styled case.”

The purported Miranda warning given to the appellant in the instant case did not apprise him “that if he cannot afford an attorney one will be appointed for him prior to any questioning.” Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. Such omission rendered the warning defective. Marcus v. State, 50 Ala.App. 526, 280 So.2d 786, 291 Ala. 350, 280 So.2d 793 (1973); Square v. State, 283 Ala. 548, 219 So.2d 377 (1968). The appellant’s motion to suppress the statement should have been granted.

REVERSED AND REMANDED.

All the Judges concur.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Talmadge PRUETT (Pruitt) v. STATE.
    7 Div. 836.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    John Baker, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The caption of the record states the surname of appellant as “Pruett,” but throughout the record and the transcript, as well as in briefs of counsel, his name is spelled “Pruitt.” As the names are obviously idem sonans, and as no point is made as to the difference in spelling of the name, we will make no further reference to the discrepancy-

The indictment charged defendant with burglary in the first degree, which is declared to be a Class A felony and is thus defined by Alabama Criminal Code, § 13A-7-5:

“(a) A person commits a crime of burglary in the first dégree if he knowingly and unlawfully enters a dwelling with intent to commit theft or felony therein and, if, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:
“(1) is armed with explosives or a deadly weapon; or
“(2) causes physical injury to any person who is not a participant in the crime; or
“(3) causes or threatens immediate physical injury by use of a dangerous instrument.”

A jury found defendant guilty as charged in the indictment. The court adjudged him guilty of burglary in the first degree and fixed his punishment at imprisonment for ten years, the minimum term provided for a Class A felony. § 13A-5-6.

In the concluding part of the court’s oral charge, it read to the jury “the given written charges” of the parties, which included seven requested by the defendant. As the court was in the process of submitting the case to the jury and retiring it to the jury room, the court concluded what it was saying to the jury by stating:

“Mac, take these forms of verdict, and I will ask you now to come out of the box and go with the bailiff.”

Immediately thereafter, the transcript shows:

“(Whereupon, the jury retired to consider their verdict at 4:10 P.M.).
“MR. BAKER [Defendant’s attorney]: I would like the requested given charges be sent out with the jury.
“MR. IGOU [District Attorney]: Judge, we object to that. You gave that in your oral charge, and I object to the written charges being given to them.
“COURT: All right, I’ll give you the benefit of it, but I sustain the objection.
“(At 5:25 P.M. the jury returned to the coürtroom to present their verdict).
“COURT: Have you ladies and gentlemen reached a verdict?
“FOREMAN: We have, yes, sir.”

The first contention made by appellant is that the court committed reversible error in refusing to allow defendant’s given charges to be sent with the jury to the jury room. He relies upon Code of Alabama, § 12-16-13, which provides in pertinent part:

“Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written, and it is the duty of the judge to write ‘given’ or ‘refused,’ as the case may be, on the document and sign his name thereto, which thereby becomes a part of the record. Charges which are marked ‘given’ by the trial judge must be taken by the jury with them on retirement, and those ‘refused’ must be retained by the clerk. The court after the conclusion of his charge to the jury, reads such written charges as he has given for the parties in a clear and audible voice, saying to the jury, ‘these are instructions given you by the court at the request of the plaintiff or defendant, as the case may be, and are correct statements of the law to be taken by you in connection with what has already been said to you.’ The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties. ...”

Immediately after § 12-16-13 of the Code of 1975 is the following:

“Code Commissioner’s Note. — This section is superseded by A.R.C.P., Rule 51, as to civil proceedings, but has been retained for possible applicability in criminal or probate proceedings.”

The requirement of § 12-16-13 that “Charges which are marked ‘given’ by the trial judge must be taken by the jury with them on retirement ...” as it also uniformly appeared in preceding codes, has been held to be mandatory and that a failure to hand them to the jury constitutes reversible error. Orr v. State, 117 Ala. 69, 23 So. 696 (1898); Hart v. State, 21 Ala.App. 621, 111 So. 47 (1926); Brewer v. State, 23 Ala.App. 35,120 So. 301 (1929). In St John v. State, 55 Ala.App. 95, 313 So.2d 215, cert. denied, 294 Ala. 768, 313 So.2d 218 (1975), it was held that in contrast to Rule 51 of the Rules of Civil Procedure, the requirement remains in full force and effect in criminal cases. Appellee says in response to appellant’s contention:

“He cites various statutes and cases which support his contention. Without speaking to those authorities, the State would submit that this matter was not properly raised at the trial court level and therefore should not be considered by this court on appeal.”

Appellee further argues that a “new trial motion is the proper method for raising this issue,” that no motion for a new trial was filed. Appellee states further:

“The State is not contending that the issue cannot be raised by objection at the initial trial. However, the State does submit that wherever raised (either at trial or motion for new trial) it must affirmatively appear in the record that there was some objection and that in fact the charges never went to the jury room. This record does not indicate such and therefore must defeat this issue on appeal.”

In support of its position, appellee relies upon what was held in Potter v. State, 46 Ala.App. 95, 238 So.2d 894, 897-898:

“Objection is made in brief that written requested charges marked ‘given’ by the trial judge were not taken by the jury with them to retirement. Tit. 7, § 273, Code of Alabama, 1940. This failure has been held to be error which will cause a reversal.... However, upon a review of the record we fail to find any proof of such omission. On the contrary, the very last words uttered by the trial judge before the jury retired were:
“ ‘Very well, take the indictment and these charges that the Court has given you, Mr. Sheriff, see that a jury room is clear back there. Ladies and Gentlemen of the Jury, you may retire and consider your verdict.’
“Since the matter was not raised on motion for a new trial, it is not presented for review.”

The only similarity between Potter v. State, supra, and the instant case is that in neither case was there a motion for a new trial. There are glaring dissimilarities. In the cited case, the transcript disclosed a positive order or direction by the trial court to the sheriff as he went with the jury to the jury room on retirement to “take the indictment and these charges that the court has given you.” To have upheld the insistence of appellant in Potter it would have been necessary to assume that the sheriff disobeyed the order or direction of the court by not taking the charges with the jury to the jury room, which on its face would have been an unwarranted assumption. To uphold the position of appellee on the point would require an assumption that the trial judge had a change of mind as to what to do with the given charges, after he had sustained the objection of counsel for the State to the request of counsel for the defendant that the requested given charges be sent out with the jury, and that, either in open court, in the presence of the court reporter, or otherwise, the trial judge arranged for the given charges to go to the jury room. Such an assumption is unwarranted. If any such change of mind on the part of the trial judge took place, it would be unreasonable to assume that it was not manifested in open court, in the1 presence of the court reporter, and that the court reporter would have reported it as a part of the transcript of the proceedings, which he has certified as correct.

Without engaging in any unwarranted assumption, we must conclude that defendant’s charges marked “given” by the trial judge did not go with the jury on retirement, as requested by defendant’s counsel, and that the trial court committed reversible error in sustaining the State’s objection to the request and in not arranging for the charges to go with the jury to the jury room on retirement.

Another contention of appellant is that the court should have given the defendant’s requested charges 16 and 17 as to lesser included offenses. Each of said requested charges concludes with the following sentence:

“If they are convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty of this offense, then the form of the verdict would be, ‘We the jury find the defendant guilty of [designated lesser offense].’ ”

Each charge ignores the principle that if requisite proof of the guilt of the defendant as expressly charged in the indictment is established, it becomes the duty of the jury to convict the defendant of the crime expressly charged. Compliance with the instruction would have authorized the jury, contrary to law, to have acquitted the defendant of the crime expressly charged, even though it was convinced beyond a reasonable doubt and to a moral certainty by the evidence that he was guilty thereof, and substitute therefor a lesser offense. Such a result is not contemplated by Code 1975, § 15-17-1, which provides that a jury may return a verdict for a lesser included offense, an attempt to commit the offense or for an inferior degree of the crime charged. In Cochran v. State, 42 Ala.App. 144, 155 So.2d 530 (1963), the court quoted from Edwards v. State, 33 Ala.App. 386, 34 So.2d 173 (1948), wherein reference was made to the sections of the then applicable Code that were the predecessors respectively of Code 1975, § 15-17-1 and § 13-9-3. Included in the quoted material is the following:

“Neither of said sections, however, can be construed to vest in the jury a pardoning power. Said sections properly construed mean where the evidence fails, under the required rule as to measure of proof, to show that the actual offense charged in the indictment has been committed as charged, then, if the evidence warrants it, the provisions of such sections may be applied and the conviction had for a lesser offense which is necessarily included in the offense with which he is charged.”

The result reached in Edwards v. State to the effect that an unauthorized judgment of conviction of an attempt to rob justified the rendition of a judgment of acquittal and a discharge of the defendant, which was also held in DeGraaf v. State, 34 Ala. App. 137, 37 So.2d 130 (1948), has been the source of discussion and a distinction as to such a result when the issue was not solely one of identity or direct denial by defendant of any involvement in the alleged commission of the crime, as was the situation in Edwards and DeGraaf. Harrison v. State, Ala.Cr.App., 340 So.2d 849 (1976).

The court properly refused the charges requested by defendant as to any lesser included offense.

During the voir dire interrogation of the prospective jurors from which the jury was selected to try the case, counsel for defendant called the names of all witnesses subpoenaed by the State and asked the jurors if they knew such witnesses. Thereupon, counsel for the defendant asked counsel for the State if there were any witnesses whose names were not on the list of the witnesses subpoenaed that he expected “to testify.” Counsel for the State responded, “That is all that I anticipate at this time, but I don’t know what the trial might bring out.” During the trial, the State called as a witness one who had not been subpoenaed and whose name had not been disclosed to defendant’s counsel. Defendant objected to her testifying on the ground her name had not been disclosed on voir dire or otherwise to defendant’s counsel. The objection was overruled. Appellant states that he “is not aware of a case in point but submits that basic principles of due process and fairness require that the accused be allowed to know the names of the State’s witnesses for their case in chief for the purpose of examining prospective jurors.” We do not agree with appellant that, under all the circumstances stated, the trial court was in error in overruling defendant’s objection to the testimony of the particular witness, but we mention it as one of the circumstances that could well have enlarged the area of injury to defendant resulting from the fact that defendant’s given charges were not “taken by the jury with them on retirement.”

We should make it clear that we cannot find that the evidence as a whole was so strong and convincing in proof of defendant’s guilt that it should be allowed to stand, irrespective of any error committed. The evidence for the State as well as for the defendant is baffling and leaves us without any firm conviction as to defendant’s guilt or innocence. Against him is the positive testimony of the alleged victim, whose good reputation and reliability have not been challenged. There was also substantial circumstantial evidence against him. In his favor was his previous good reputation, as to which witnesses for the State and the defendant were in agreement. He positively denied any part in any crime and was supported by the testimony of his wife as to an alibi.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

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

BOOKOUT, J., concurs in result.

      . Also provided by Code § 13-9-3.


author: PER CURIAM.

text:
    In re FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. 58988-B.
    Supreme Court of Florida.
    Oct. 15, 1981.
   PER CURIAM.

Appended to this order is the revised Florida Rule of Criminal Procedure 3.986 relating to uniform judgment and sentence forms.

This Court finds that the uniform application of judgments and sentences is essential to the proper administration of justice in the State of Florida. Thus this Court hereby adopts this revised rule pursuant to Florida Rule of Judicial Administration 2.130(a).

This rule shall govern all proceedings within its scope after midnight, October 31, 1981. This Court respectfully requests that interested parties file any appropriate suggestions or objections on or before December 1, 1981.

The current rule is hereby stricken and the appended language is substituted therefor.

It is so ordered.

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

APPENDIX

PROPOSED LANGUAGE FOR RULE 3.986

RULE 3.986 JUDGMENT AND SENTENCE

The following uniform judgment and sentence shall be sufficient. Variation from this form does not void the judgment, sentence, and fingerprints that are otherwise sufficient.


author: BOYD, Justice.

text:
    WINN-DIXIE STORES, INC., Appellant, v. STATE of Florida, Appellee.
    No. 54358.
    Supreme Court of Florida.
    Nov. 12, 1981.
    Rehearing Denied Feb. 8, 1982.
    Eugene P. Spellman of the Law Offices of Eugene P. Spellman, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for appel-lee.
   BOYD, Justice.

This cause is before the Court on appeal of a judgment of the Dade County Court that passed on the constitutionality of a state law. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The appellant corporation was charged by information with violating section 106.-08(l)(e), Florida Statutes (Supp.1974). The statute provides in pertinent part as follows:

(1) No person or political committee shall make contributions to any candidate or political committee in this state, in moneys, material, or supplies or by way of loan, in excess of the following amounts:
(e) To any political committee in support of, or in opposition to, an issue to be voted on in a countywide, districtwide, or less than countywide election, $1,000.

Winn-Dixie Stores filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190. The motion asserted that chapter 106 was unconstitutional. The motion also alleged that the material facts of the case were undisputed. Those facts, as alleged in the motion, were as follows.

At the general election of 1974, there was to be placed on the ballot a referendum, by which the voters of Dade County would adopt or reject a county ordinance prohibiting the sale of beverages in non-returnable containers. Because the adoption of such an ordinance would adversely affect its retail grocery business, Winn-Dixie wished to exercise its right to freedom of expression by campaigning against the ordinance. The corporation transferred $30,000 from its general fund to an account in the name of Campaign Fund of Winn-Dixie Stores, Inc. Approximately $24,000 was spent for advertising in the campaign against the container ordinance. After the campaign, the remainder of the money was returned to Winn-Dixie’s general fund.

Appellant contended in its motion that under these undisputed facts, section 106.-08(l)(e) could not constitutionally be applied to it because what it did was to make independent expenditures and not contributions to a candidate. The essence of the defendant’s argument was that under the decision of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), limitations on contributions to candidates, because they serve the compelling interest of preventing corruption, are permissible while limitations on independent expenditures in a political campaign serve no compelling interest and are therefore an impermissible infringement on freedom of expression.

Following the denial of its motion to dismiss, appellant entered a plea of nolo con-tendere, reserving the right to appeal the court’s ruling on the constitutionality of the statute.

Appellant contends that section 106.-08(l)(e), Florida Statutes (1974), violates its right to freedom of speech under the First Amendment to the United States Constitution, and that the judgment of conviction thereunder cannot stand. We agree that as applied to the facts of this case, the limitation on expenditures in issue-referendum campaigns is unconstitutional.

Limitations on the amounts that persons may contribute or spend in campaigns to influence the results of political elections affect activities that are at the core of the First Amendment’s protection of freedom of expression and association. When such limitations have a substantial impact on such activities, they impinge upon First Amendment rights. Laws which have such impact are subject to exacting scrutiny: they must be supported by a compelling governmental interest and must be narrowly drawn so as to involve no more infringement than is necessary. First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Section 106.08(l)(e) imposes such limitations and has substantial impact on protected freedoms. The state contends that the statute serves two compelling state interests: the prevention of corruption in political campaigns and the promotion of disclosure which enables the public to know who is financing a campaign.

The constitutionality of the statute under consideration here, along with that of one of its companion provisions, was at issue in Let’s Help Florida v. McCrary, 621 F.2d 195 (5th Cir. 1980). The court there looked at the principles enunciated in the Bellotti and Buckley cases and reasoned that one of the asserted state interests underlying section 106.08(l)(d) and (e), the prevention of corruption and the appearance thereof, was simply not compelling in the context of an issue referendum.

The state’s interest in preventing the actual or apparent corruption of candidates, which the Supreme Court found so compelling in Buckley, does not justify restrictions upon political contributions in referendum elections. When people elect a candidate, they choose someone to whom they can delegate their political decision-making. The people’s need to prevent large contributors from improperly influencing this representative deci-sionmaker is critical. In contrast, when people vote on a referendum proposal, they directly decide the pertinent political issue for themselves. Large contributions for publicity by one group or another do not influence the political decision-makers — in this case, the voters themselves — except in a manner protected by the first amendment.

Let’s Help Florida v. McCrary, 621 F.2d at 199-200.

The second asserted state interest — promotion of disclosure — was also considered in McCrary.

Appellants also contend that the restrictions upon the size of contributions to a single committee are necessary to promote adequate disclosure about who is financing a campaign. In the absence of these restrictions, appellants contend that corporations and wealthy individuals would mask their participation in a referendum campaign by funneling large sums of money into a committee which the public would see only under an innocuous title such as “Let’s Help Florida” or “Dade Voters for a Free Choice.” Although promoting disclosure of campaign contributors is an important state interest, the restrictions upon political contributions in sections 106.08(l)(d), (e) cannot be justified as disclosure measures because the statutes are not closely drawn to avoid unnecessary abridgment of associational freedoms. These statutes that restrict the amount a person may contribute to a single committee do little to promote disclosure. The primary effect of the statutes is to compel large contributors who support or oppose a referendum issue to form multiple partisan committees, each of which can receive the maximum amount from a single contributor under the statute. These multiple committees provide no additional disclosure; the public still sees only the innocuous names of the different committees, and not the identities of the underlying contributors.
Florida can and does effectively promote the disclosure of large contributors through measures that are less harmful to first amendment rights. For example, sections 106.03 and 106.07 of the Florida Election Code require political committees to register with the state and to file information about each contribution and contributor throughout the campaign. This information is available to the public and may be published through newspapers and other media. Section 106.143 requires disclosure of the source of payment for all political advertisements and campaign literature. Measures such as these provide adequate disclosure without directly restricting contributions or other important first amendment rights.

Id. at 200-01.

We find the reasoning and the holding of McCrary to be directly applicable to the instant case. Section 106.08(l)(e), Florida Statutes (1974), impinges upon First Amendment rights. Neither of the governmental interests asserted by the state as compelling is sufficient to justify the statute’s impact upon freedom of expression. Therefore, the' statute is unconstitutional insofar as it is sought to be applied to expenditures in issue-referendum campaigns.

We reverse the judgment and remand with directions that the information be dismissed.

It is so so ordered.

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

ALDERMAN, J., concurs in result only.


text:
    FLORIDA BOARD OF BAR EXAMINERS Re: AMENDMENT TO RULES RELATING TO ADMISSIONS TO FLORIDA BAR.
    No. 61439.
    Supreme Court of Florida.
    Dec. 17, 1981.
    Earl M. Johnson, Chairman, Jacksonville and C. Graham Carothers, Tallahassee, for petitioner.
   PER CURIAM.

This matter is before us on petition of the Florida Board of Bar Examiners for amendment of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar. In our decision filed February 26, 1981, approving substantial amendments to the Bar admissions rules, we acknowledged the suggestion in one of the responses to the proposed changes that there be lay representation on the Board. During oral argument of its recommended amendments, the Board advised this Court that it was studying this question. We directed the Board to continue its study and to make its recommendation to this Court by July 15, 1981, as to whether there should be nonlawyer representation on the Board and, if so, what the extent of this representation should be and what the procedure should be for selecting nonlawyer Board members. In re Petition of the Florida Board of Bar Examiners for Amendment of the Rules of the Supreme Court of Florida Relating to Admissions to the Bar, 397 So.2d 627 (Fla. 1981). The Board made its report to the Court on July 15, 1981, and suggested that lay members be included on the Board. In its report, the Board laid out the procedure for selection of lay members and their term of office and informed this Court that implementation of these recommendations would require further amendments to the admissions rules. We invited The Florida Bar to file its response, which it did on August 27, 1981. We approved in principle the recommendations and requested that the Board take the necessary steps to petition this Court for an appropriate rule change.

The Florida Board of Bar Examiners now petitions this Court to amend the Rules of the Supreme Court of Florida Relating to Admissions to the Bar to include lay members on the Board. These recommended changes consist of an increase in the Board’s membership from twelve members to fifteen; a three-year term of office for the lay members, with the first lay member to be appointed upon adoption of these amendments, the second to be appointed effective November 1,1982, and the third to be appointed effective November 1, 1983; and the appointment by the Supreme Court of each lay member from a list of three nominees recommended by a joint committee composed of six members, three from the Board of Bar Examiners and three from the Board of Governors of The Florida Bar.

We approve the Board’s proposed changes and hereby adopt the amendments appended to this order, effective 12:01 a. m., April 1, 1982. The lay member appointed upon the effective date of these amendments shall serve until October 31, 1984. We will entertain comments and objections to these amendments prior to March 1, 1982.

It is so ordered.

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

ARTICLE I

FLORIDA BOARD OF BAR EXAMINERS

Section 2. There is hereby created a Florida Board of Bar Examiners consisting of twelve members of The Florida Bar^ and three lav members of the general public. The members now constituting said Board shall continue to hold office for the terms now appointed-, and their successors shall continue to be selected and appointed in the manner prescribed in Article I of the Rules Relating to Admissions to The Florida Bar.

a. Attorney Members of the Board. As the terms of the attorney members expire, all appointments shall be for no more than five years, and any vacancy occurring during any term shall be filled by appointment. No person attorney appointed by the Court as a result of a vacancy occurring during a term shall be appointed for more than five years, and the term of all such appointments shall be extended to October 31 of the last year of such term.

b. Lav Members of the Board. All appointments of lav members shall be for no more than three years, and any vacancy occurring during any term shall be filled bv appointment. Initially, the first lav member shall be appointed effective November 1. 1981. the second lav member shall be appointed effective November 1. 1982. and the third lav member shall be appointed effective November 1. 1983. No lav member appointed bv the Court as a result of a vacancy occurring during a term shall be appointed for more than three years, and the term of all such appointments shall be extended to October 31 of the last year of such term.

Section 3. The Board of Governors of The Florida Bar shall submit to the Court not less than thirty days prior to the expiration of any the term* of any attorney member of the Board, and in case of a vacancy, within thirty days thereafter, its recommendations with respect to appointees. Such group of recommended appointees shall be thrice the number to be appointed.

A joint committee composed of three members of the Board and three members of the Board of Governors of The Florida Bar shall submit to the Court not less than thirty days prior to the expiration of the term of anv lav member of the Board, and in the case of a vacancy, within thirty days thereafter, its recommendations with respect to appointees. Such group of recommended appointees shall be thrice the number to be appointed.

The following provisions will be pertinent in connection with the nominations to membership on the Board:

a. Qualifications. A — feas—examiner should Attorney members shall be a practicing attorneys with scholarly attainments and an affirmative interest in legal education and requirements for admission to the bar. Lav members shall have an academic Bachelor’s Degree. It is desirable that lav members possess educational or work-related experience of value to the Board such as educational testing, accounting, statistical analysis, medical or psychologically related sciences.


text:
    STATE of Florida, Petitioner, v. Chris DAVENPORT, Respondent.
    No. 60563.
    Supreme Court of Florida.
    Dec. 23, 1981.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for petitioner.
    Michael Allen, Public Defender and Theodore E. Mack and David J. Busch, Asst. Public Defenders, Tallahassee, for respondent.
   PER CURIAM.

The petition for review is dismissed. State v. Goodson, 403 So.2d 1337 (Fla.1981).

It is so ordered.

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


text:
    Ronald Douglas ABRAM, Petitioner, v. STATE of Florida, Respondent.
    No. 60579.
    Supreme Court of Florida.
    Dec. 23, 1981.

      Michael E. Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr. and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for respondent.
   BOYD, Justice.

This case is before us on a question certified as one of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Petitioner, who was eighteen years old, was found guilty of two felonies, burglary and sexual battery, arising from the same criminal episode. The trial judge sentenced him to two fifteen-year sentences to run concurrently.

Petitioner, who had never been previously found guilty of a felony, appealed to the district court of appeal, claiming that he was entitled to be sentenced as a youthful offender under section 958.04, Florida Statutes (1979). The district court of appeal found that the provisions of section 958.-04(2) were mandatory and held that appellant should have been sentenced as a youthful offender under the first conviction, though not necessarily under the second. It reversed the first sentence and affirmed the second. It then certified the following question as one of great public importance:

[Is] a person excluded from a mandatory classification under Section 958.04(2)(9) [sic], Florida Statutes (Supp.1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

In State v. Goodson, 403 So.2d 1337 (Fla.1981), we answered this question in the affirmative. In doing so we held that a defendant who is simultaneously convicted of two or more felonies is not entitled to mandatory classification as a youthful offender under any one of them. We therefore quash that portion of the district court’s decision, 405 So.2d 992, which reversed the trial court’s first sentence. We hold that the trial court was not required to classify petitioner as a youthful offender for purposes of either sentence; such treatment was discretionary. The case is remanded with directions to reinstate the sentences of the trial court.

It is so ordered.

SUNDBERG, C. J., and OVERTON, ALDERMAN and McDONALD, JJ., concur.


author: SUNDBERG, Chief Justice.

text:
    Evelyn G. DeWITT and Mabel M. DeWitt, Appellants, v. Estelle R. DUCE, Dallas W. Weaver and Mabel E. Weaver, Appellees.
    No. 60594.
    Supreme Court of Florida.
    Dec. 23, 1981.

      John R. Vintilla, Cleveland, Ohio, for appellants.
    John W. Hewitt of Warwick, Campbell & Hewitt, Palm Beach, for appellees.
   SUNDBERG, Chief Justice.

The former United States Court of Appeals for the Fifth Circuit certified to this Court the following question pursuant to article V, section 3(b)(6), Florida Constitution (1980), and section 25.031, Florida Statutes (1979), as involving an unsettled question of Florida law and as being determinative of this cause:

Does Florida law, statutory or otherwise, preclude plaintiffs from proving the essential elements of their claim for tor-tious interference with an inheritance where the alleged wrongfully procured will has been probated in a Florida court and plaintiffs had notice of the probate proceeding and an opportunity to contest the validity of the will therein but chose not to do so?

DeWitt v. Duce, 642 F.2d 159, 160 (5th Cir. 1981). For the reasons set out below, we answer the question in the affirmative.

Arthur Welch died in 1975, and his will was admitted to probate in Florida. The DeWitts, plaintiffs-appellants, filed a Petition for Revocation of Probate of Welch’s will, but voluntarily dismissed the petition before trial, choosing to take under the will. Two and one-half years later, the DeWitts filed a diversity action in federal court for wrongful interference with an inheritance. The DeWitts claimed that Estelle Duce, decedent’s housekeeper, in league with Dallas and Mabel Weaver, exercised undue influence over Welch at a time he lacked testamentary capacity, causing him to revoke a prior will and replace it with the probated will, which was more favorable to Duce and the Weavers and correspondingly less favorable to the DeWitts. Appellants sought conveyance of Welch’s residence and an accounting for residuary amounts, both of which they would have received under the earlier will. They also sought punitive damages.

After one journey through the federal courts, the district court on remand dismissed the cause on the ground that section 733.103(2), Florida Statutes (1977), foreclosed appellants from proving the facts necessary to establish their tort claim. That statute provides as follows:

In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and of the fact that the will was unre-voked on the testator’s death.

The district court reasoned that this statute prevented appellants from relitigating issues of undue influence and testamentary capacity, and thus prevented proof of elements vital to a claim of tortious interference with an expectancy. On appeal, the former federal fifth circuit determined that this issue was more properly decided by this Court, a task we gratefully accept, applauding this spirit of federalism.

I.

Although a cause of action for wrongful interference with a testamentary expectancy has been recognized in this state, the issue of when the tort action will be considered a collateral attack on the original probate decree has never been addressed, at least under the circumstances of this case. Even though Florida courts have not directly confronted our case, courts from many other jurisdictions have squarely faced the issue of determining when a tortious interference action ought to be considered an impermissible collateral attack on the probate proceedings. The vast majority of these cases characterize as collateral a later tort action whenever the plaintiff has failed to pursue an adequate remedy in the probate proceedings. In Allen v. Lovell’s Adm’x, 303 Ky. 238, 197 S.W.2d 424 (1946), the court would not allow a tort action predicated on a destroyed will because no effort was made by plaintiffs to have the destroyed will probated, which would have given plaintiffs adequate relief. A federal district court in a case similar to the one we face would not allow a tort action for wrongful deprivation of legacies because the plaintiff had not attempted to probate the prior favorable will in a two-will situation, and there was no showing that probate jurisdiction was impracticable. McGregor v. McGregor, 101 F.Supp. 848 (D.Colo.1951), aff’d, 201 F.2d 528 (10th Cir. 1953). Likewise, the North Carolina Supreme Court would not allow relief for tortious interference when plaintiff could not show that the fraud involved had prevented her from a fair chance at litigating that issue in probate proceedings. Johnson v. Stevenson, 269 N.C. 200, 152 S.E.2d 214 (1967). When plaintiff was the only heir and could have taken intestate by proving her claim of undue influence to defeat the will at probate, no later tort action is allowable to relitigate the undue influence claim. Brignati v. Medenwald, 315 Mass. 636, 53 N.E.2d 673 (1944). The rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued. See Benedict v. Smith, 34 Conn.Sup. 63, 376 A.2d 774 (1977).

The converse of the above rule is equally well recognized. Thus when the plaintiff is unable to establish a destroyed will in a probate proceeding because there was only one witness to that will, relief by an action in tort for malicious destruction is proper. The issue of what the destroyed will contained never was decided in the probate court and hence is not res judicata for purposes of the tort action. Creek v. Laski, 248 Mich. 425, 227 N.W. 817 (1929). Recovery is allowed because of the equitable maxim that no wrong shall be without a remedy. See Dulin v. Bailey, 172 N.C. 608, 90 S.E. 689 (1916). If the defendant’s fraud is not discovered until after probate, plaintiff is allowed to bring a later action for damages since relief in probate was impossible. Morton v. Petitt, 124 Ohio St. 241, 177 N.E. 591 (1931). If defendant’s tor-tious conduct had caused the testator to make an inter vivos conveyance to defendant of assets that would otherwise have been part of the estate, setting aside the will would be inappropriate redress and consequently a tort action is properly allowed. See Hegarty v. Hegarty, 52 F.Supp. 296 (D.Mass.1943); Cyr v. Cote, 396 A.2d 1013 (Me.1979). A pattern may be developed from this line of cases which allows the later action for tortious interference only if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.

II.

In applying the general rule to Florida cases in this area, a certain consistency may be observed. Cases which allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies, although this is not articulated. Hence Davison v. Feuerherd, 391 So.2d 799 (Fla.2d DCA 1980), involved interference with expectancies from a revocable trust a matter apparently outside of probate jurisdiction. Watts v. Haun, 393 So.2d 54 (Fla.2d DCA 1981), involved interference with an inter vivos gift, a matter outside of the scope of probate. The progenitor of wrongful interference actions in Florida, Allen v. Leybourne, 190 So.2d 825 (Fla.3d DCA 1966), concerned tortious interference which prevented the testator from making a new will in favor of plaintiff as promised. The inadequacy of remedy is somewhat problematic in Allen since the plaintiff was a daughter of testator, and would take one-fourth the estate by intestacy if she had defeated the will. § 731.23, Fla.Stat. (1965). But the intent of testator prior to the interference seems to have been to leave the largest part of his estate to plaintiff, creating a marked disparity between her remedies in probate and in tort. See note 7 supra; Latham v. Father Divine.

The final case in Florida dealing with our problem is Kramer v. Freedman, 272 So.2d 195 (Fla.3d DCA 1973), which again involved the situation of the testator being prevented from making a promised will more favorable to plaintiff. The critical difference in Kramer, in which the court disallowed a later tort action, was that the plaintiff had an adequate probate remedy in a revocation proceeding. If the plaintiff had succeeded in defeating the will which left her nothing, she would have taken equally with her half-sisters by intestacy, exactly what the testator had promised. See § 731.23, Fla.Stat. (1971). The district court in Kramer reached the correct decision in denying the later tort action, but ignored the underlying reason for characterizing the tort action as collateral, i.e., the adequacy of probate remedy.

We are aware of a relatively recent case from the federal tenth circuit dealing with these issues, and view our interpretation of Florida law as consistent with that case. In Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975), the court found that collateral estop-pel did not apply to a later tort action brought for attorney’s fees and expenses, because the earlier probate proceeding which had established undue influence did not necessarily establish intent for purposes of the interference action. But in Peffer the plaintiff had exhausted her probate remedy, and her later action was allowable only to recover damages for which probate could not have provided.

III.

Applying the general principles we have reviewed to the case at hand, one can readily see that appellants had an adequate remedy in the probate proceedings. The record reveals that the prior will which is favorable to appellants is extant. If this earlier will were the true testamentary embodiment of the testator’s intent, appellants should simply have offered this will while attacking the later will on grounds of undue influence and lack of testamentary capacity. See In re Barret’s Estate, 40 So.2d 125 (Fla.1949). If they had succeeded in this challenge and established this earlier will, the probate court could have given them everything to which they claim entitlement.

Finally, appellants vaguely assert that their due process rights will be violated if the tort action is not allowed. Yet the entire basis for disallowing the later tort action is the existence of adequate relief in probate. The state has an undeniable interest in settling title to property passing through probate. “ ‘Consideration of public policy requires that all questions of succession to property be authoritatively settled.’ ” Davis v. Gaines, 104 U.S. 386, 392-93, 26 L.Ed. 757 (1881). The state’s interest in an orderly succession of property can outweigh a party’s equal protection or due process interests. See Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978). Because section 733.103(2) is little more than the codification of the common-law rule against collateral attack and is predicated on principles of res judicata and collateral estoppel, we are unable to perceive how a rule so basic to our system of jurisprudence can deny appellants due process of law.

In sum, we find that appellants had an adequate remedy in probate with a fair opportunity to pursue it. Because they lacked assiduity in failing to avail themselves of this remedy, we interpret section 733.103(2) as barring appellants from a subsequent action in tort for wrongful interference with a testamentary expectancy, and accordingly answer the certified question in the affirmative.

It is so ordered.

ADKINS, BOYD, OVERTON, ALDERMAN and McDONALD, JJ., concur.

      . The 1977 statute is cited as it was the applicable statute at the time the initial collateral action was filed on July 20, 1978.

      . See Restatement (Second) of Torts § 774B and Comment c (1979).

      . See Davison v. Feuerherd, 391 So.2d 799 (Fla.2d DCA 1980); Allen v. Leybourne, 190 So.2d 825 (Fla.3d DCA 1966).

      . One Florida case has applied principles of collateral estoppel to prevent relitigating in a subsequent tort action issues of duress, fraud, and undue influence which had already been decided in a probate proceeding. Kramer v. Freedman, 272 So.2d 195 (Fla.3d DCA 1973). Kramer differs from the present case, and is discussed below.

        . See also Hall v. Hall, 91 Conn. 514, 100 A. 441 (1917) (no right to relitigate fraud on plaintiff as actionable in probate); Axe v. Wilson, 150 Kan. 794, 96 P.2d 880 (1939) (remedy is in probate when adequate, not in an action for damages); Holt v. Holt, 232 N.C. 497, 61 S.E.2d 448 (1950) (collateral attack on probate decree not allowable when issues could have been raised in a caveat proceeding). These cases are consistent with equitable notions that do not allow relief from a probate decree when the delay in attacking the decree was avoidable. See, e.g., Kieley v. McGlynn, 88 U.S. (21 Wall.) 503 (1875) (Broderick’s Will). “The world must move on, and those who claim an interest in persons or things must be charged with knowledge of their status and condition, and of the vicissitudes to which they are subject. This is the foundation of all judicial proceedings in rem. ” Id. at 519.

      . Equity generally allowed relief from a probate decree when fraud was uncovered or a suppressed will was discovered after the probate proceedings. See Gaines v. Chew, 43 U.S. (2 How.) 619, 11 L.Ed. 402 (1844); Seeds v. Seeds, 116 Ohio St. 144, 156 N.E. 193 (1927).

      . If the party injured by the fraud is one who would otherwise have been a legatee and the fraud took the form of inducing the testator to omit a gift to the aggrieved party and to include a gift to the party practicing the fraud, rejecting the fraudulently procured gift at probate would be ineffective to pass the property to the harmed party. Probate can strike from the will something that is in it as
      a result of fraud but cannot add to the will a provision that is not there nor can the probate court bring into being a will which the testator was prevented from making and executing by fraud. In such cases, since the remedy in the probate proceeding is inadequate, relief should be granted either in the form of a constructive trust, by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of the fraud, or by giving the aggrieved party an action at law for damages against the defrauder.

      1 W. Bowe & D. Parker, Page On Wills, § 14.8 at 706-07 (rev. 1960) (footnote omitted) (emphasis added). See Harmon v. Harmon, 404 A.2d 1020 (Me.1979); Latham v. Father Divine, 299 N.Y. 22, 85 N.E.2d 168 (1949).

      .The commentors are in agreement with the principle that a tortious interference action is allowable only when the inadequacy of probate remedies is apparent or established. See Comment, Tort Liability for Interference with Testamentary Expectancies in Decedent’s Estates, 19 U.Kan. City L.Rev. 78, 85-89 (1950); Evans, Torts To Expectancies In Decedents’ Estates, 93 U.Pa.L.Rev. 187, 202-05 (1944).

      . Allen v. Leybourne relied heavily on Bohannon v. Wachovia Bank & Trust Co., 210 N.C. 679, 188 S.E. 390 (1936), in which plaintiff would inherit nothing through intestacy if he had succeeded in defeating a fraudulent will, which justified allowance of a remedy in tort.

      . Cooke v. Cooke, 278 So.2d 683 (Fla.3d DCA 1973), is the only other Florida case in this area. Cooke is principally concerned with jury charges. The facts indicate, however, that a tort action was properly allowed since the plaintiff son had been promised two-thirds of his father’s estate prior to the defendant’s interference, and would have taken only one-half by intestacy had he defeated the will.

      .For purposes of adequacy of relief we do not consider punitive damages as a valid expectation. Adequacy is predicated on what the probate court can give as compared to what the plaintiff reasonably expected from the testator prior to interference. Additionally, we can find no case authority allowing punitive damages in this type of action.


text:
    THE FLORIDA BAR. In re Claude DORSY.
    No. 60779.
    Supreme Court of Florida.
    Dec. 23, 1981.
    Stanley A. Spring, Staff Counsel, Tallahassee, Paul A. Gross, Staff Counsel and Robert J. Jones, Asst. Staff Counsel, Miami, and John A. Weiss, Discipline Counsel, Tallahassee, for complainant.
    Claude Dorsy, Coral Gables, for respondent.
   PER CURIAM.

Claude Dorsy is petitioning for reinstatement as a member of the Florida Bar. The referee recommends that he be reinstated without requiring a bar re-examination. The board of governors has approved the recommendations and after reviewing the record we agree with the referee and approve the reinstatement.

Petitioner is ordered to pay the costs of the proceedings as outlined in the referee’s report.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. John A. RITTER, Respondent.
    No. 61072.
    Supreme Court of Florida.
    Dec. 23, 1981.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, The Florida Bar, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, for complainant.
    Louis M. Jepeway, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline to violations of Disciplinary Rules 1-102(A)(3), 1-102(A)(4), 5-101(A), and 6-101(A)(3) of the Code of Professional Responsibility and Rule 11.02(4) of the Integration Rule of The Florida Bar. We approve the Petition, and we hereby suspend Respondent, John A. Ritter, for a period of ninety (90) days effective January 22, 1982, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients and respondent shall not accept any new business.

Costs in the amount of $492.75 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    STATE of Florida, Petitioner, v. Ralph James HUMPHRY, Respondent.
    No. 61117.
    Supreme Court of Florida.
    Dec. 23, 1981.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., Tallahassee, for petitioner.
    Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for respondent.
   PER CURIAM.

This case is before us to review a decision of the District Court of Appeal, First District, reported at 402 So.2d 1322 (Fla. 1st DCA 1981). The district court held that respondent, who had been simultaneously convicted of three felonies, was entitled to be sentenced as a youthful offender under section 958.04(2), Florida Statutes (Supp. 1978), for the first felony, but not for the other two. It then certified the following question as one of great public importance.

Is a person excluded from a mandatory classification under section 958.04(2)(9), F.S. (Supp.1978) [sic ], when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?

402 So.2d at 1324.

We have answered this question in the affirmative in State v. Goodson, 403 So.2d 1337 (Fla.1981). However, in doing so we also held that the defendant who has been convicted of more than one felony is not entitled to be sentenced as a youthful offender for any of the felonies. That portion of the district court’s opinion that is inconsistent with that holding is hereby vacated and this case is remanded for further consideration consistent with State v. Goodson.

It is so ordered.

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


text:
    THE FLORIDA BAR. In re Thomas A. WARREN.
    No. 61174.
    Supreme Court of Florida.
    Dec. 23, 1981.
    Dale E. Krout, Jr., Branch Staff Counsel, Tallahassee, for complainant.
    Howell L. Ferguson of Ferguson & Sher-rill, Tallahassee, for respondent.
   PER CURIAM.

This is a petition by Thomas A. Warren for reinstatement to The Florida Bar. The record shows that Mr. Warren was automatically suspended from the practice of law in May of 1976, pursuant to Integration Rule 11.07(3). After extensive findings, the referee has recommended that Mr. Warren be reinstated. The Board of Governors has approved this favorable recommendation.

We approve the referee’s report, grant the petition, and reinstate Thomas A. Warren to the practice of law in Florida. He shall pay the cost of these proceedings.

It is so ordered.

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