text:
    Jerome TURNER v. STATE.
    3 Div. 302.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-405.

      Maurice S. Bell, Montgomery, 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.

A jury found defendant (appellant) guilty under an indictment which charged in pertinent part that he

“... did receive, retain, or dispose of stolen property, to-wit: one Browning .12 gauge automatic shotgun, a better description of which is unknown to the Grand Jury, of the value of $550.00, the property of J. Doyle Fuller, knowing that it was stolen or having reasonable grounds to believe it had been stolen and not having intent to restore it to its owner, in violation of Section 13A-8-18 of the Code of Alabama.”

Code of Alabama 1975, § 13A-8-18, provides that “Receiving stolen property ... Which exceeds $100 in value but does not exceed $1,000 in value ... constitutes receiving stolen property in the second degree” and that receiving “stolen property in the second degree is a Class C felony.” According to § 13A-5-6(3) the punishment for a Class C felony is “not more than 10 years or less than 1 year and 1 day.” The court fixed defendant’s punishment at imprisonment for two years and sentenced him accordingly.

We consider first the second issue presented by appellant: “Did the trial Court commit reversible error by denying Turner’s motion to exclude the State’s evidence?” The second and third paragraphs of appellant’s argument in support of “Issue Two” are as follows:

“The motion tested the sufficiency of the State’s evidence to that point [The close of the State’s ease]. No further elements were added in that the defense presented only character witnesses and the State offered no rebuttal.
“This leaves the State’s case made entirely by the witness Kunart. (R-128-156). It is our position that Kunart was an accomplice and that not one iota of his testimony was corroborated.”

Notwithstanding our doubt as to the correctness of appellant’s contention that the testimony of Mr. Kunart was not corroborated, we find it unnecessary to make a determination of that question for the reason that we disagree with appellant’s contention that the evidence shows that the witness Kunart was an accomplice. It is true that he was in possession of the recently stolen gun upon his purchase of it from the defendant, which fact if not reasonably explained gave rise to an inference that he was an accomplice. However, his explanation thereof, though evincing some lack of due care in purchasing the gun without more assurance than he had that it was not stolen property, cannot be said to be unreasonable as a matter of law. Especially is this true in the light of the fact that his explanation was lengthy and comprehensive and was subjected to vigorous cross-examination by defendant. It stands in striking contrast with the absence of any explanation whatever by defendant as to defendant’s possession of the gun. The defendant and Kunart were employees of the Montgomery Fire Department at the same fire station. Kunart testified that defendant said that the gun belonged to a friend or relative who needed the money and wanted to sell it. He paid $175 for the gun. In appellant’s brief is a two-page recital of the testimony of the witness Kunart. We quote some excerpts from such recital, which we think are not in irreconcilable conflict with the rest of his testimony or the rest of the evidence in the case and are sufficient to show that appellant’s accusation that the witness was an accomplice is not established by the evidence as a matter of law. On direct examination, the witness said:

“... At the time I didn’t know if $175 was a fair price. I felt like I was getting a pretty good deal. Other than from a friend or relative Turner did not indicate where the gun came from. I did not ask him, Turner just volunteered the statements. I bought an A/M radio from Turner about 3 to 4 weeks before I bought the shotgun. Several others had looked at the gun before I bought it, about 3 or 4, all at the Fire Station. They were other firemen. Turner never told me the shotgun was hot, warm, or had been stolen.”

On cross-examination the witness said:

“... I saw the shotgun about a week before I bought it. It was at the Fire Station. Turner brought it. He was alone. I was advised by a detective with the Montgomery Police Department at St. Margaret’s Hospital to turn the gun in. I took it to the Police Department. About three or four days elapsed from the time I bought the shotgun until I turned it in. It was not unusual for firemen to barter. There is now a restriction against it. I had no reason to believe the gun stolen. In my mind at the time I felt $175 was reasonable ... I don’t know why others did not buy it. I can’t give you names of others; it was in the open. Turner didn’t try to hide it. It was morning when I bought the shotgun. I told my partner I had bought this shotgun. I took the sling off the shotgun. I still have the sling. I didn’t take the sling to the Police Department. I had misplaced it. I found the sling. I didn’t inform the police I had found it.”

Another issue presented by appellant is as to the denial by the trial court of defendant’s motion for a change of venue after a lengthy hearing upon which considerable evidence was introduced as to extensive publicity that had been given by the press, radio and television relative to accusations against defendant that he had been engaged in receiving and selling stolen property. There was also evidence of publicity to the effect that others of the Montgomery Fire Department had been engaged in similar activity and that there was a police investigation with reference to it and that the mayor of the city of Montgomery and the district attorney of the Montgomery County Circuit Court had made statements to the effect that defendant was guilty. Some witnesses on the motion testified in effect that they understood from the great amount of publicity that defendant only was guilty.

We agree with appellant that defendant’s motion for a change of venue found considerable support in the evidence, but we conclude that the trial court carefully considered and weighed all evidence on the subject, that the trial judge was in a better position than an appellate court to rule on such a motion and that there was no abuse of the discretion vested in the trial court by the denial of the motion. Appellant cites in support of his contention two cases only: Mathis v. State, 280 Ala. 16, 189 So.2d 564, cert. denied, 87 S.Ct. 963, 386 U.S. 935, 17 L.Ed.2d 807 (1966) and McLaren v. State, Ala.Cr.App., 353 So.2d 24 (1977), cert. de nied, 353 So.2d 35. We quote from Mathis v. State, per Justice Goodwyn, at 189 So.2d, p. 566:

“Publicity by the press, radio and television does not necessarily constitute ground for a change of venue. See: Denton v. State, 263 Ala. 311, 314-315, 82 So.2d 406; Campbell v. State, 257 Ala. 322, 324-325, 58 So.2d 623; Littlefield v. State, 36 Ala.App. 507, 510, 63 So.2d 565, cert. den., 258 Ala. 532, 63 So.2d 573. Whether a motion for a change of venue should be granted is a matter addressed to the sound discretion of the trial court. See: Cobern v. State, 273 Ala. 547, 551, 142 So.2d 869; Collins v. State, 234 Ala. 197, 199, 174 So. 296; Littlefield v. State, supra. From a consideration of the evidence taken on the hearing of the motion, we cannot say that the trial court abused its discretion in denying the motion.”

In McLaren v. State, supra, it was stated by Judge DeCarlo at 353 So.2d pp. 31-32:

“Prejudicial pre-trial publicity may be a ground for a change of venue under T. 15, Section 267, Code of Alabama 1940, Recompiled 1958; Butler v. State, 55 Ala.App. 421, 316 So.2d 348. However, the defendant in a criminal ease has the burden of showing there was such prejudice prevailing in the community where his trial was set that a fair and impartial trial could not be had. Boutwell v. State, 279 Ala. 176, 183 So.2d 774.
“Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry, through the insertion of such sensational, accusational or denunci-atory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844.
“In our judgment the appellant did not carry his burden of supporting the motion for change of venue to the reasonable satisfaction of the court. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79; Flurry v. State, 52 Ala.App. 64, 289 So.2d 632.
“Under the facts in the present case the trial court did not abuse its discretion in denying the motion for a change of venue.”

Our conclusion that the trial court did not commit reversible error in its denial of defendant’s motion for a change of venue is not out of harmony with what was held in Mathis v. State, supra, and McLaren v. State, supra, or with other authorities in general on the subject.

Appellant expressly presents in his brief the following issue:

“Did the trial Court err by permitting the State to ask questions on cross-examination of character witnesses had they heard of specific bad acts attributed to the defendant without limiting the time in which the witnesses had heard such reports to a time prior to the offense for which the defendant was then on trial?”

In arguing this issue, appellant says:

“At pages 346 and 360 of the record, the State was allowed over objection to ask of character witnesses for the defendant if they had heard of certain bad acts attributed to the defendant. Objection was made by defendant. These questions were improper and the objections should have been sustained because they did not limit the time the witness was to have heard them prior to April 21, 1980. To show what we mean we set out verbatim (all such questions were equally faulty) the question appearing at page 360 of the record:
“ ‘Q. Mr. Evans, have you heard that prior to April 21, 1980, that Jerome Tucker got juveniles to steal property that he would sell for them?
“ ‘Mr. Bell: Objection.
“ ‘The Court: Overruled, with the same instructions to the jury.’ ”

We agree with appellant to the extent that the quoted questions should have been limited to the time of or to a time prior to the alleged offense. In Gamble, McElroy’s Alabama Evidence, § 26.-02(6) (1977), we find:

“If a person’s general reputation, either as a whole or with respect to a specific trait, is admissible as tending to show that he did or did not do a particular act, proof of such general reputation must be restricted to the time of or to a time prior to the alleged act.”

It is stated therein in § 26.02(13):

“If a witness testifies to another's good general reputation as a whole for the purpose of showing that such other did not do a particular act, the witness may be asked on cross-examination whether he, prior to the alleged act, heard rumors derogatory to such other in any respect. ...”

A close reading of the quoted question to which an objection was made reveals that by employment of the first “that” in the question instead of being content with the second “that,” the question has failed to comply with the requirement as to time. However, the objection was as deficient as the question, in that it did not specify the ground of objection that is specified on appeal. It was a general objection. Furthermore, we note that as to such questions, when proposed in camera and when asked in the presence of the jury, the specific ground claimed on appeal was not assigned. Judge McElroy, in Gamble, McElroy’s Alabama Evidence, § 426.01(10) (1977) has comprehensively covered “Rules as to when a general objection if overruled is sufficient to predicate error on appeal.” In the concluding paragraph thereof, he states:

“Properly interpreted, the most popular and current test would seem to be as follows: A general objection if overruled is sufficient to present for review on appeal the point that the evidence admitted was violative of a specific rule if such evidence is illegal and, according to the common probabilities of experience, there is a fair likelihood that such evidence cannot be made legal by the introduction of other evidence or by otherwise framing the inquiry made to the witness.”

The objection under consideration does not meet that test. The overruling of defendant’s objection to the question does not constitute reversible error. In Hallman v. State, 35 Ala.App. 534, 50 So.2d 6, 7 (1951), relied upon by appellant, in holding that the trial court committed reversible error in overruling defendant’s objection to a question asked a character witness for the defendant as to whether he had heard a derogatory remark about the defendant, it is stated:

“Among the grounds of objection interposed to these questions was:
“ ‘It is not confined to a time prior to the alleged offense.’ ”

In concluding that the trial court did not commit prejudicial error in overruling defendant’s objection to the question, we take into consideration the brevity of the time between the alleged crime and the testimony, about three months. This gives little room for possible harm to the defendant by the failure of the question to confine the hearing of the derogatory rumor to the period required by the governing principles of evidence.

Appellant’s only other assertion of error is as to the trial court’s refusal of defendant’s requested written Charge 18 as follows:

“The Court charges the jury if there is, from the evidence, a reasonable probability of Jerome Turner’s innocence, the jury should acquit Jerome Turner.”

The charge states a correct principle of law. However, it is not as strong a charge in favor of defendant as a correct charge to the effect that a jury should acquit a defendant if there is, from the evidence, a reasonable doubt of defendant’s guilt. In its oral charge and in some given written charges requested by defendant, the court comprehensively and correctly charged the jury to the effect that it should acquit the defendant unless the jury was convinced by the evidence beyond a reasonable doubt and to a moral certainty that he was guilty. Qualified jurors know that if there is a reasonable doubt of defendant’s guilt there is certainly a reasonable probability of his innocence. For this reason, defendant’s charge No. 18 was properly refused. Benford v. State, Ms. 6 Div. 496, Ala.Cr.App., Oct. 27,1981, in which the particular issue is discussed with a collation of authorities. Moreover, we adopt and apply what was recently held in Allen v. State, Ms. 6 Div. 993, Ala.Cr.App., Nov. 24, 1981, per Judge Tyson, that the now applicable statutory authority as to the refusal of requested written charges, Tit. 12-16-13, Code of Alabama 1975, does not retain the “automatic exception” provision of the statutory law on the subject.

No error prejudicial to defendant is found in the record. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Ronnie L. COLLINS v. STATE.
    1 Div. 300.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    James M. Byrd and Thomas M. Haas, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Possession of cocaine; sentence, two years imprisonment.

Appellant was found guilty, in a non-jury trial, of possession of cocaine in violation of § 20-2-70(a), Code of Alabama 1975. Appellant admitted possession of the drug as well as admitting that the State could prove a prima facie case beyond a reasonable doubt. He asserted as his only defense the legality of the nighttime search of his residence. He claims the affidavit for the search warrant lacked a showing that the informant was reliable, and a positive averment that the drugs were present.

We quote the pertinent portions of the affidavit supporting the issuance of the search warrant.

“State of Alabama, County of Mobile.
“Before the undersigned personally appeared who requested a search warrant and in support thereof made oath as follows:
“1. The (x) PLACE to be searched is in Mobile County and is described as: 3000 Pickell Dr., residence of a white male named Ronnie Collins.
“2. The PROPERTY to be searched for and seized, if found, is specifically described as:
“Cocaine.
“3. The GROUNDS for search are that said property () was stolen or embezzled, (xx) was a means of committing the felony of: Possession of Cocaine. () Will be used to commit the offense of:
“4. The FACTS establishing probable cause for search are:
“I am Officer Larry Mote of the Mobile Police Dept., Mobile, Alabama. I am presently assigned to the Narcotic Division. On February 22, 1980, I received information from an informant. He stated that within the past 48 hours, he was inside the residence of a white male named Ronnie Collins. While in the residence at that time he observed several clear plastic bags containing a white powder. These plastic bags were in a brown briefcase. This substance was represented by Ronnie Collins to be cocaine. I know that cocaine is commonly packaged in this manner and has this appearance. I have frequently come into contact with persons using and handling this drug in my duties as a narcotic officer. On Feb. 29, 1980 at 8:50 P.M. informant entered residence, located at 3000 Pickell Dr. At 9:11 P.M. informant exited residence and came to me parked down the street. He handed me 1 clear plastic bag containing white powder, which was represented by Ronnie to be cocaine. He a Iso stated when he left residence there was a large plastic bag containing white powder lying on the bar in the kitchen, which was also represented to be cocaine.” [Emphasis added]

I

No search warrant can be issued unless supported by probable cause, § 15-5-3, Code of Alabama 1975; Alford v. State, Ala.Cr.App., 381 So.2d 203 (1979), cert. denied, Ala., 381 So.2d 206 (1980), and the judge or magistrate is satisfied that such exists. § 15-5-5, Code of Alabama 1975.

Probable cause may be based upon hearsay information from an informant as long as there is a “substantial basis for crediting the hearsay.” Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A substantial basis exists if the affidavit for the search warrant satisfies the following two-pronged Aguilar-Spinelli test: the basis of knowledge prong and the veracity prong. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The affidavit in the present case fully satisfies the first prong of the Aguilar-Spi-nelli test in that it sets forth the detailed observations of the informant while inside appellant’s house. The affidavit does not, however, relate any facts regarding the reliability of the informer, and as such, it fails the second, or “veracity” prong of the test.

If the affidavit based on the informant’s tip does not meet one of the two prongs of the test, however, it may still provide the basis for probable cause to search if the information is so detailed and specific that a “magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli v. United States, supra. This is known as the self-verifying tip. Hatton v. State, Ala.Cr.App., 359 So.2d 822 (1977).

In the instant case, it is our judgment that the particularity and detail of the informant’s observations of contraband inside the appellant’s house provided the reliability necessary to credit the hearsay, especially when the informant immediately reported his findings to Officer Mote, who was parked down the street. We therefore hold that the affidavit was sufficient in regard to the informant’s reliability.

II

If a search warrant is to be executed at night, § 15-5-8 requires that the affidavit “state positively that the property is on the person or in the place to be searched.” Pianzio v. State, Ala.Cr.App. (1 Div. 186 Ms. Feb. 24, 1981); Peavy v. State, Ala.Cr.App., 336 So.2d 199, cert. denied, Ala., 336 So.2d 202 (1976). The statute does not, however, require an absolutely positive and unequivocal statement. Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975).

Examination of the affidavit reveals that the affiant had probable cause to believe that a large plastic bag containing cocaine was in the possession of appellant in his kitchen. It is our opinion that there was a sufficiently specific averment as required by § 15-5-8, Code of Alabama 1975. Hare v. State, Ala.Cr.App., 390 So.2d 1126, cert. denied, Ala., 390 So.2d 1129 (1980).

We have found no error in the trial court’s ruling, and the judgment of conviction by the Mobile Circuit Court is hereby affirmed.

AFFIRMED.

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


author: CLARK, Retired Circuit Judge.

text:
    Wallace RIVERS v. STATE.
    4 Div. 879.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Cada M. Carter of Byrd, Carter & Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   CLARK, Retired Circuit Judge.

Appellant was tried under a three-count indictment charging him with the murder of Lewis Wilson, Jr. A jury found him guilty of murder “as charged in Count One of the Indictment.” The only difference between Count One and the other two counts is that in Count One it is alleged that the alleged victim’s death was caused “by hitting him on the head with a semi-blunt instrument” while the other two counts allege respectively that death was caused “by cutting him with a sharp instrument” and “by striking him with a blunt instrument.” At the conclusion of the State’s case, defendant moved to exclude the evidence. Appellant now urges that the State failed “to prove a prima facie case” and that the denial of defendant’s motion to exclude the evidence constituted reversible error. He limits this insistence to a contention that there was no evidence that the dead body of a person that had been found floating in a creek, the only dead body referred to in the evidence, was that of the alleged victim.

In this connection, we note several instances of undesirable vagueness in the evidence as to persons, places and things. For instance, throughout the evidence, the first name of the alleged victim is spelled “Louis” instead of “Lewis” as alleged in the indictment. Furthermore, he is rarely, if ever, referred to as “Junior” or “Jr.” as alleged in the indictment. Apparently neither discrepancy is considered to be important by the parties as both invariably employ the name “Louis Wilson” in their briefs. With this in mind and the fact that at no place in the evidence is there any reference to any Lewis or Louis Wilson, Sr., that could have caused confusion as to the identity of the alleged victim, we are of the opinion that the evidence established that the body of the person found on March 25, 1980, in a creek near State Highway # 231 in Houston County was the body of the alleged victim as shown by the testimony of some of the witnesses. Deputy Sheriff Kenneth Bryan testified that he was present when the body was removed from the creek. He further testified:

“Q. All right, sir. I show you what has been marked as State’s Exhibit No. 2 for identification purposes and ask you is that the body that you removed from the creek?
“A. Yes.
“Q. Does that accurately and correctly depict or portray the scene as the way it was when you observed it out there at Big Creek on March 25?
“A. Yes, sir.
“Q. And who is that, if you know?
“A. That is Louis Wilson.”

Chief Deputy O. E. Jones testified:

“Q. Chief Jones, back on March 25th of 1980 this year, did you have an occasion to go out to the scene here on Big Creek here in Houston County?
“A. Yes, I did.
“Q. Were you there when the body of one Louis Wilson was recovered from the creek there?
“A. Yes, I was.”

In our opinion, the evidence was sufficient to warrant the submission to the jury of the issue as to defendant’s guilt and to withstand the defendant’s motion for a new trial, which the court overruled. The evidence presented by the State was to the effect that the alleged victim was never seen alive after Sunday, March 16, 1980, that on the night before he and defendant had been at the home of defendant’s wife or ex-wife and that defendant had been heard to say that if Louis Wilson “didn’t stop hanging around his wife he was going to have to hurt him.”

According to further evidence presented by the State, the body, at the time of the prompt autopsy thereof after it was found, “was in a state of moderate to advanced post-mortem decomposition” and the cause of death was “multiple blunt force injuries, multiple stab wounds or sharp force injuries.” Although no witness testified definitely that the body was attached to anything in the water, there are references in the transcript to its attachment to a concrete road marker that was in the water, which marker had been removed from a nearby road. There was definite evidence that attached to the road marker was wire from coat hangers. There seems to be no dispute as to the claim by the State that the body had been attached to a part of the wire that was attached to the road marker.

There was testimony on behalf of the State that the road marker referred to above was the same road marker that had previously been positioned along a road at a point where the nearest house therefrom was that of defendant’s brother, with whom defendant had been seen on the last day or night on which the alleged victim had been seen alive. There was testimony by one or more of the witnesses that, soon after defendant was apprehended on or about March 26, 1980, pieces of concrete were found in his automobile, the automobile he was driving on or about March 15 and 16, 1980, and that the hood of the car, which had on or about March 15 and 16 been in a wreck was tied down by wire of coat hangers. An expert witness called by the State testified that pieces of concrete found in defendant’s automobile “possessed the same physical characteristics and composition” and “could have had a common origin” with the concrete composing the road marker that was found in the creek. The witness also testified “that the coat hangers from the hood of the automobile” had “the same wire dimension as those found around the concrete marker ... two point four millimeters in diameter.” A stain was found in the automobile, but tests for the presence of blood were negative. The witness also testified that tests for blood on clothing that defendant probably wore on March 15 and 16,1980, were negative. The wire of a coat hanger found in the passenger compartment of defendant’s automobile, as well as some coat hangers that were observed that had been in the house of defendant’s brother, did not have the same dimension as the wire of the coat hangers attached to the road marker.

The defendant did not testify, but witnesses called by him testified as to his whereabouts during a considerable part of the night of March 15-16, 1980, and the daytime of March 16. His two sisters testified that about “11:30 or 12:00” that night he came to the house where they all were living, left there about “6:30 or 7:30 that morning in his car” and returned with his brother about 10:30 the same morning. The testimony of one or more of them was to the effect that his clothes were not bloody or dirty, that they were not “messed up.”

Other witnesses called by defendant testified that, on Sunday, March 16, 1980, the defendant and his brother came to their houses along Highway 231 “close to the Florida State line” selling pocketbooks. One of them testified that “he had just poured some concrete around his house which was loose concrete.” The wife of defendant’s brother, Eddie Rivers, testified that “Eddie got home” on the night of March 15, 1980, “around 11:00, 11:30” and he was at home “until 7:00 o’clock the next morning” when “he left” with the defendant. According to her testimony; the two men returned about 2:30 or 3:00 that afternoon. She further testified:

“Q. When Wallace came home with Eddie at 2:30 or 3:00 o’clock that afternoon, was Wallace’s car messed up?
“A. Yes, it was.
“Q. Did Wallace tie his car down?
“A. He asked me for something to tie the car down.
“Q. He tied it down at your house?
“A. Uh-huh. (Affirmative response)
“Q. What did he tie it down with?
“A. I don’t know. Because, I just told him to look around he might could find something.
“Q. He might could find something?
“A. Uh-huh. (Affirmative response)
“Q. He and Eddie were drinking when they came home.
“A. Yes. They were drunk.
“Q. They were drunk?
“A. Uh-huh (Affirmative response).
“Q. How long were they there?
“A. They were there until about 7:00 o’clock that evening.”

That defendant’s brother, Eddie Rivers, was with defendant on the night the alleged victim was last seen alive and the greater part of the following day is unquestioned and hardly questionable. He did not testify in the case.

But for certain expert evidence introduced by the State on rebuttal, the previous evidence of the State as to the presence of pieces of concrete in defendant’s automobile when it was searched for clues would have been nearly, if not completely, neutralized by the evidence presented by the defendant as to the presence of loose concrete at a house in the vicinity of the area visited by defendant and his brother on Sunday, March 16, 1980. Such rebuttal evidence is found in the testimony of Mr. Charles F. Brooks, a crime laboratory analyst of Enterprise Laboratory of the Alabama Department of Forensic Sciences, who said, inter alia:

“Q. Mr. Brooks, I refer you to the concrete chips you stated that you found in the Defendant’s car. I will ask you if the concrete was relatively fresh, two or three weeks old and would it have the same physical characteristics as the concrete chips that you found in that car?
“A. I don’t believe so, sir.
“Q. All right.
“MR. CARTER: I object to that.
“MR. SORRELLS: Judge, he is giving an opinion.
“THE COURT: He has been qualified as an expert. His testimony is strictly as an expert, opinion evidence. And, I overrule you.
“THE WITNESS: There is a visible difference between concrete that has been, that has been poured for a long period of time. Primarily due to the leaching of the elements, rain, sun, what have you.
“Q. All right. Now, I refer you back to State’s Exhibit No. 9 [road marker]. I am asking you if you found anything on there, on the front part or the back part, any material on that marker?
“A. Yes, sir. I found some mud from the scene. I also found some red mud on there that had colored the concrete.
“Q. Was the red mud in the concrete?
“A. It was in the concrete or leached into it.
“Q. I refer you to the chips that you found in the Defendant’s car. Did it also have this red change on them?
“A. Yes.
“Q. I believe that you testified about a door flashing in the back seat of the car?
“A. Yes.
“Q. And were there any abrasions on that door flashing?
“MR. CARTER: Judge, I am going to object to that as not being anything on Rebuttal.
“MR. SORRELLS: I was trying to rebut the evidence from the concrete coming from some other place, Your Honor.
“THE COURT: Yes, I overrule you. “BY MR. SORRELLS:
“Q. Did you see any abrasions on that door flashing?
“A. Yes, sir.
“Q. Was there any concrete in that door flashing?
“A. Yes.
“Q. Was it, any of it embedded in that door flashing?
“A. Yes, sir.”

The testimony as a whole as to the pieces of concrete found in defendant’s automobile when considered with all the evidence in the case points strongly to defendant as one of the participants in the homicide of the alleged victim.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Norma FRANCIS, alias v. STATE of Alabama.
    4 Div. 933.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Norma Frances, alias Norma F. Francis, together with one Sylvester Russell was indicted for the possession of marijuana, contrary to law. The jury found the appellant “guilty of possession of marijuana for personal use” and the trial court set punishment at 12 months’ imprisonment in the county jail.

Dothan Police Sergeant Bob Sorrells testified that on January 7, 1981, accompanied by his partner, he went to a residence located at 205 A North Bell Street in the City of Dothan, Alabama, and knocked on the door. He stated that he carried a search warrant and that the parties named in the search warrant were Sylvester Russell and the defendant, Norma Francis, who is also known as “Candy”. He stated he knocked two or three times before Norma Francis came to the door, that he identified himself as a police officer and held up his badge for her to see and advised that he had a search warrant with which to make immediate search of the residence. Sorrells indicated that Norma Francis “slammed the door” in his face, ran back into the house and that he could hear a woman’s voice saying, “Throw it in the fire, throw it in the fire.” He stated that he demanded immediate entry and when no one answered, together with Sergeant Wallace Williams, they forced the door open and inside found 19 clear plastic bags on the mantel over the fireplace. He stated that these were behind the picture of a black child which was on the mantel.

Sorrells also stated that they found a red cigarette pack containing one partially smoked cigarette. He stated that the only persons within the house were a white male, a two year old baby and the appellant, Norma Francis. The two officers then read the appellant a Miranda warning from a card and after ascertaining that she understood these constitutional rights and without any threats, intimidation, coercion or inducement they asked the appellant about the marijuana.

Norma Francis told the two officers that she was baby sitting at this residence for one Diane Gulledge and that when asked about selling marijuana she stated that she “had not sold but one nickel bag” and that with reference the cigarette package, she stated it “was hers.”

The evidence was seized by the two officers and was turned over to Dothan Police Officer John White, who then delivered the 19 clear plastic bags and cigarette package to Joe Saloom at the Enterprise, Alabama, Crime Lab.

Saloom tested the material and determined that same was in fact marijuana and was 131.77 grams and could be rolled into several hundred cigarettes.

Dothan Police Sergeant Wallace Williams confirmed the events previously testified to by his partner, Sergeant Sorrells, and the seizure of marijuana.

The appellant made a motion to exclude the state’s evidence as failing to prove a prima facie case, which was overruled.

Diane Gulledge testified that she was living at 205 A North Bell in the City of Dothan, Alabama, on the night of January 7, 1981. She stated that she was working at the Extendicare Health Center and stated that the appellant, Norma Francis, was not living there but had been staying there a few days because Diane Gulledge’s “baby was sick.” She stated that Norma Francis was living with her mother at that time and that Sylvester Russell did live at the house “every now and then.”

Diane Gulledge indicated that there was a big picture of her baby sitting on the mantel, about 11 X 14 in size, and that there was no marijuana in the house on the date of the arrest of Norma Francis on January 7, 1981.

On cross-examination, Diane Gulledge admitted that the appellant had been living at the residence in question for the “48 hour period, continuously” prior to the date of the arrest and seizure but she was only there as a “baby sitter.” She admitted that Sylvester Russell was her boy friend and would stay there with her “from time to time.”

Diane Favors testified that she was a neighbor who lived at 203 D North Bell right behind the home where the officers found the marijuana on January 7, 1981. She stated that there had been a raid on “Diane Gulledge’s house”, but that Norma Francis was merely baby sitting and that there was a man named Sydney Buchanan who was there that morning, together with Norma Francis and Diane Gulledge’s baby daughter. She stated that she had been over to the house in question but saw no plastic bags of green vegetable material or anything else on top of the mantel on that date. She insisted that Norma Francis did not live at the residence in question.

Sydney Buchanan testified that he had dropped by the residence of Diane Gulledge on the morning of January 7,1981, and that Norma Francis was there with the two year old baby of Diane Gulledge and a man named Mike. He stated that while he was there he saw the appellant hand a pack of Kool cigarettes to one Frank James, but that he did not notice any plastic bags on the mantel or any marijuana during the time he was at the residence.

Ethyl Pierce testified that she too was a neighbor and knew that for two nights and three days just prior to January 7, 1981, Norma Francis had been baby sitting at Diane Gulledge’s apartment on North Bell. She stated that she had seen the picture of the baby over the mantel, but had not seen any marijuana inside.

On cross-examination she stated that Norma Francis was her daughter and that she was simply baby sitting for Diane Gul-ledge.

Sylvester Russell testified that he had been staying at the residence of Diane Gul-ledge at 205 North Bell and had spent the night of January 6, 1981 at that residence. He stated that he had gotten some marijuana a day or two before and had put it in plastic bags and that he had subsequently pled guilty to possession of marijuana and was presently serving time in the Houston County Jail. He stated there was a big picture of Diane Gulledge’s little girl on the mantel over the fireplace and that he had placed the marijuana there himself.

On cross-examination Russell denied putting any marijuana in a red cigarette package.

Norma Francis took the stand and testified that she had been baby sitting for some two and one-half days at the residence of Diane Gulledge at 205 North Bell when officers came by on January 7, 1981. She stated that her friend Mike was staying there and that since he had not gotten up, that she answered the door and that someone said something about looking for a bag of reefers. She stated that she shut the door saying that she did not know anything about it and when he knocked again and showed her the badge she started to open the door and the officers pushed open the door and cursed. She denied making any statements about throwing any substance into the fire and denied that she knew the existence of any marijuana being there. She stated that officers did find some marijuana on the mantel behind the picture of Diane Gulledge’s little girl, “little Tiffiny”. She stated that she had put it up there because the little girl had tried to grab a bag while crawling about. She denied trying to sell any marijuana that day to Frank James or anyone else.

I

In Henderson v. State, 347 So.2d 540 (Ala.Cr.App.), cert. quashed, 347 So.2d 543 (Ala.1977), we found the following:

“The issue presented by this record is whether or not the State presented a prima facie case of possession of the prohibited substance.
[1] Knowledge of the presence of the prohibited substance may be established by circumstantial evidence, and guilt does not depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.
[2] The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324.
[3] Where, as here, the presence of the accused at the scene is established through both direct and circumstantial evidence, and the evidence of the accused’s knowledge of the presence of the prohibited substance is shown together with other incriminating evidence, then the issue of the appellant’s guilt should be submitted to the jury. Radke v. State, 292 Ala. 290, 293 So.2d 314; Fields v. State, Ala.Cr.App., 333 So.2d 861.”

(a) In the instant case, the testimony of the state’s witnesses and indeed the appellant’s own witnesses established that she had been staying at the residence in question for some two and one-half days.

(b) Both Dothan Officers testified that they knocked and advised the appellant that they had a search warrant for the residence and asked her to open the door and that she slammed the door in their faces. Each officer, Sorrells and Williams, stated that they overheard a woman’s voice say twice, “Throw it in the fire, throw it in the fire,” and thereafter upon entering the premises found there was only one woman inside and the only other occupants were a white male and a two year old baby. Both officers testified to finding the 19 clear plastic bags which contained the green plant material on the mantel, at or behind the large picture of Diane Gulledge’s baby daughter.

Where, as here, the evidence as above set forth raises questions of fact for the jury and such evidence if believed was sufficient to sustain the conviction, the trial court did not err in overruling the appellant’s motion to exclude the state’s evidence and properly submitted this cause to the jury for their determination. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); McHellen v. State, 351 So.2d 689 (Ala.Cr.App.1977); and Green v. State, 384 So.2d 1215 (Ala.Cr.App. 1980).

II

The appellant asserts as error the overruling of his objection when Diane Gul-ledge was being examined on cross-examination with reference her testimony on direct in appellant’s behalf, to the effect that the appellant was “merely a baby sitter” and did not live at the residence on the date in question. On Record pages 41-42 we find the following:

“Q Okay. Now you said that you didn’t have any marijuana in the house?
“A No, Sir.
“Q Somebody else must have brought it in then? Is that correct?
“A Yes.
“Q It wasn’t yours?
“A Was not mine.
“Q All right. You don’t know how it got there?
“A No.
“Q Now, this picture that was on the mantel, is that a picture of a Black baby?
“A Well, my baby is mixed.
“MR. GRUENEWALD: We object and move to exclude that.
“THE COURT: That is what the evidence is. I overrule you.
“BY MR. MAXWELL:
“Q And, Sylvester Russell lives there sometime, also?
“A Not live there, but he was my boyfriend. You know, might spend the night.
“Q Did he have a room?
“A No. He would sleep with me when he was there.
“Q All right. When you left on this morning at 6:45, approximately, fifteen until 7:00, the Defendant was there and Sylvester Russell was there? Is that correct?
“A Yes.”

Appellant asserts such was an effort on the part of the state to inject bias and prejudice against the appellant and that such was intended to inject race into this case.

We do not agree with this contention of appellant. Diane Gulledge was merely being cross-examined as to her alibi testimony in behalf of appellant. Her reply to the state’s question was not in response to the question itself. Moreover, the location of the plastic bags of marijuana on the mantel was a controverted issue of fact, as several of the defendant’s witnesses had denied any marijuana being on the premises or located on the mantel or behind the picture of the child. We do not believe that where, as here, testimony with reference the location of the picture on the mantel, and that it was a photograph of the baby having come into evidence without objection, that such was not error to allow facts to be shown over objection, where such has already been proven without objection. Allen v. State, 390 So.2d 676, (Ala.Cr.App.) and authorities therein cited.

We have carefully examined this record and find no error therein. This judgment is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Lawrence Edward GILBERT, alias v. STATE of Alabama.
    6 Div. 494.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

This is a companion case to Gilbert v. State, 6 Div. 549, which was affirmed without opinion by this court on November 24, 1981. The appellant and two companions burglarized three adjoining establishments (a dentist’s office, an animal clinic, and the Rocky Ridge Pharmacy, located in a small shopping center) and were caught in the act by local authorities and arrested at the scene. The conviction which was previously affirmed was for the burglary of the dentist’s office. The case presented by this appeal is for the burglary of the Rocky Ridge Pharmacy. The facts are essentially the same as presented in the previous appeal and the sufficiency of the evidence is not challenged on this appeal. The state presented a prima facie case and the jury found the appellant guilty of second degree burglary. Pursuant to the Habitual Felony Offender Act, the trial court sentenced the appellant to life imprisonment.

I

Appellant alleges a material variance between the indictment and the state’s proof in that one of the appellant’s companions listed in the indictment as Everett E. Barkley was referred to at trial as Edward Barkley (R. 94) by Sergeant Charles Moore, one of the arresting officers. This issue was not raised in the trial court and is, therefore, not preserved for our review.

Moreover, for aught that appears in the record, Sergeant Moore’s reference to an Edward Barkley could have been a mere “slip of the tongue.” It was never established at. trial that the companion’s first name was indeed, Edward. In any event, it does not appear that, if such was a defect in the indictment, it was material as to this appellant.

II

Appellant further challenges his life sentence through the Habitual Felony Offender Act.

He argues that the three prior convictions upon which his enhanced punishment is based are not prior “felonies” under § 13A-5-9, Code of Alabama 1975, because they occurred prior to January 1, 1980. He also asserts that one of the prior convictions was not properly proved because the proof thereof was a “trial docket sheet.” Both of these issues have been decided previously by this court against this appellant in Gilbert v. State, 6 Div. 549, November 24, 1981, affirmed without opinion. See Act number 1037, General Acts of Alabama 1971 and Watson v. State, 392 So.2d 1274, cert. denied, 392 So.2d 1280 (1980).

Moreover, appellant failed to properly preserve these issues for our review. His general objections to the admissibility of this evidence were for “lack of a predicate” and for “lack of authentication.” (R. 189).

Furthermore, the appellant conceded in a pre-trial discussion (R. 4) and at the beginning of the sentencing hearing that appellant had at least three prior felony offenses. The pre-sentence report (R. 208-215) revealed numerous prior arrests and convictions dating back to 1955.

There is no error shown by the record of the trial. This cause is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Willie Etonia LEWIS v. STATE of Alabama.
    6 Div. 681.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Charles M. Purvis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Willie Etonia Lewis was indicted for and convicted of the robbery of Perkins Jewelers in Birmingham. The trial court set sentence at 25 years’ imprisonment.

On December 17, 1979, two black men, one armed with a pistol and the other armed with a sawed-off “rifle”, entered Perkins Jewelers and forced Ms. Billie Stovers, an employee, to give them a number of men’s rings which were on display. The same two men, who were unmasked on both occasions, had been in the store earlier looking at these rings. Ms. Stovers had assisted them on their first visit and was face-to-face with both men during the robbery.

After the robbery Ms. Stovers gave a description of both men to the police and several months later identified both from a photographic lineup. She also made a positive in-court identification of appellant.

Mr. Perkins and Mrs. Purser, two other employees of the jewelry store, were also in the store at the time of the robbery but did not have the same opportunity to observe the robbers because they were forced to lie face down on the floor. Nevertheless, Mr. Perkins was able to give a description to the police and to identify the appellant from the photographic lineup, and both he and Mrs. Purser identified appellant in court.

The appellant does not challenge the sufficiency of the evidence on this appeal.

I

Appellant contends that this conviction should be reversed “for lack of a formal adjudication of his guilt” by the trial court.

The record (R. 236) reveals that at the sentencing hearing the trial court stated that “[i]t is the judgment and sentence of this Court that you be imprisoned in the penitentiary for a term of 25 years.” (Emphasis supplied). Furthermore, the minute entry (R. 244) states that based on the unanimous jury verdict “[i]t is the judgment of the Court that said defendant is adjudged guilty as charged in the indictment ...”

Notwithstanding appellant’s arguments to the contrary, the adjudication of appellant’s guilt was adequately stated by the trial court as evidenced in the judgment entry by the clerk. See Allred v. State, 35 Ala.App. 66, 43 So.2d 758 (1950); Duck v. State, 38 Ala.App. 652, 92 So.2d 55 (1957). See also Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941).

II

The appellant also contends that the trial court erred in denying his motion to exclude the in-court identifications of the appellant by the three eyewitnesses to the robbery. He claims that only Ms. Stovers was able to describe the robbers on the day of the crime and that her description of appellant at that time was inaccurate. Furthermore, he insists that when Ms. Sto-vers and Mr. Perkins identified appellant in a photographic lineup, said lineup was im-permissibly “suggestive” because in that picture appellant’s arm was in a sling. Finally, he implies that the in-court identifications were also “tainted” because the three witnesses did not have sufficient opportunity to observe the men during the robbery.

Appellant’s factual assertions on appeal are somewhat misleading on this issue. Both Ms. Stovers and Mr. Perkins testified that they gave descriptions of both robbers to the police. They, likewise, testified that they did not describe appellant as “bald” (the inaccuracy noted by appellant) but merely told investigators that he had a “receding” hair line. All three eyewitnesses testified that they clearly observed the appellant either during the robbery or earlier that day when the same two men were in the store “looking at” men’s rings. Mrs. Purser explained that the only reason she did not make an identification during a photographic lineup, was because she was not certain that the picture she recognized was appellant.

However, all three eyewitnesses made positive and unequivocal identifications of the appellant at trial and testified that said identifications were based on their observations on the day of the robbery.

Having reviewed these circumstances and the entire record, we have concluded that the photographic identifications were not so “suggestive”, if at all, as to create a risk of “irreparable misidentification.” See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The identifications at trial were, therefore, admissible and any defects or inconsistencies with pretrial descriptions or identifications of appellant went to their weight and credibility, in this instance. Simmons v. United States, supra. Childers v. State, 339 So.2d 597 (Ala.Cr.App.), cert. denied, 339 So.2d 601 (Ala.1976); Lomax v. State, 359 So.2d 832 (Ala.Cr.App.), cert. denied, 359 So.2d 836 (Ala.1978); Merchant v. State, 384 So.2d 627 (Ala.Cr.App.), cert. denied, 384 So.2d 632 (Ala.1980); Altman v. State, 399 So.2d 928 (Ala.Cr.App.1981).

There being no error of record, this case is due to be and is, hereby, affirmed.

AFFIRMED.

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


text:
    Eddie GEORGE, alias, v. STATE of Alabama.
    6 Div. 703.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.

      Jerome S. Grand, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appel-lees.
   TYSON, Judge.

Eddie George was' convicted of “receiving stolen property in the second degree” in violation of § 13A-8-18, Code of Alabama 1975. After a sentencing hearing, he was sentenced by the trial court to eighteen years’ imprisonment, pursuant to the Alabama Habitual Felony Offender Act. See George v. State, 54 Ala.App. 90, 304 So.2d 908 (1974).

Appellant’s motions to “exclude the state’s case” and for a “new trial” based on the insufficiency of the evidence against him were duly denied by the trial court.

Shortly before noon on October 6, 1980, several men traveling in a “white over brown” Cadillac stole some merchandise from a delivery truck belonging to the R. D. Burnett Cigar Company, Inc. The stolen merchandise (cigarettes, snuff, candy, gum, etc.) had a wholesale value of approximately two-hundred fifty dollars. About 15 minutes later Officer Jan Snider of the Birmingham Police Department, responding to the police bulletin concerning this theft, located the “white over brown” Cadillac approximately seven blocks from the site of the theft. At that time the automobile was parked and the stolen merchandise was on the front seat and front floor board.

Officer Snider testified that the appellant was sitting in the driver’s seat of the vehicle, next to the stolen goods. It was undisputed at trial that the vehicle belonged to the appellant.

Contrary to Officer Snider’s testimony, the appellant’s evidence tended to show that appellant was elsewhere at the time of the theft and arrived at the scene of his arrest shortly before Officer Snider, and only after he had learned that his car had been stolen and had begun to search for it. Appellant did not testify in his behalf, but his alibi witnesses testified that appellant was not inside his vehicle when Officer Snider arrived. However, most of the remainder of the testimonies from these alibi witnesses was confusing and, in fact, inconsistent as to appellant’s whereabouts at the time of the theft. All of the alibi witnesses were either good friends or relatives of the appellant.

I

Appellant first contends that the trial court erred in denying his motion to exclude and his motion for a new trial on his claim of insufficient evidence. Appellant argues that there was no evidence that he knew the merchandise was stolen or that he did not intend to return it to the owner.

A

The evidence was undisputed, however, that the recently stolen merchandise was recovered from the appellant’s vehicle and that appellant was present at that time. Although appellant produced witnesses who related somewhat different versions of the events, the arresting officer testified that appellant was seated behind the steering wheel of this vehicle, right next to the stolen merchandise, when the arrest was made.

This evidence that appellant had the recently stolen merchandise in his possession, if believed by the jury, was sufficient to trigger the presumption that appellant knew the merchandise had been stolen. Section 13A-8-16(b)(2), Code of Alabama 1975; Character v. State, 51 Ala.App. 589, 287 So.2d 916, cert. denied, 291 Ala. 775, 287 So.2d 919 (1973) and cases therein cited; Stamps v. State, 380 So.2d 406 (Ala.Cr.App. 1980); Goodman v. State, 401 So.2d 208 (Ala.Cr.App.), cert. denied, 401 So.2d 213 (Ala.1981), and cases therein cited. Appellant brought out on cross-examination of a state’s witness that the merchandise was inside boxes which were not labeled and, therefore, that it was not obvious that such was stolen. This was the only fact offered in rebuttal to the “presumption of knowledge” and thus had little weight with the jury since it was also disclosed that the unlabeled boxes were never sealed and, consequently, the stolen merchandise therein could have been easily discovered.

The evidence, therefore, raised a question of fact for the jury whose determination on such evidence will not be disturbed on appeal. Perry v. State, 371 So.2d 969 (Ala.Cr.App.), cert. denied, 371 So.2d 971 (Ala.1979); Causey v. State, 374 So.2d 406 (Ala.Cr.App.), cert. denied, 374 So.2d 413 (Ala.1979).

B

Appellant did not present any testimony to the effect that he intended to restore the stolen merchandise to its rightful owner. His defense was that he knew nothing about the merchandise whatsoever, not that he knew it was stolen and intended to return it. The issue of intent was, likewise, within the province of the jury, and the evidence supports its determination. Saxton v. State, 389 So.2d 541 (Ala.Cr.App. 1980).

II

Appellant contends, in the alternative, that if his alibis were not persuasive, then the evidence presented by the state will only support a charge of theft and not receiving stolen property. Appellant correctly cites the principle that one cannot be convicted of receiving stolen property when the evidence proves that he participated in the theft. Craig v. State, 375 So.2d 1252 (Ala.Cr.App.), cert. denied, 375 So.2d 1257 (Ala.1979); Guerin v. State, 396 So.2d 132 (Ala.Cr.App.1980), cert. denied, 396 So.2d 136 (Ala.1981).

However, this principle is inapplicable where, as here, the evidence does not show that the appellant participated in the theft. Craig v. State, supra; Thomas v. State, 389 So.2d 552 (Ala.Cr.App.1980). “That he may have done so cannot be reasonably doubted, but there is no definite evidence to that effect.” Craig v. State, supra.

The indictment charged appellant only with “receiving stolen property.” The state’s evidence showed that only appellant’s automobile was identified at the scene of the theft. There was no proof that appellant participated in the actual “taking” of the merchandise. In fact, appellant’s evidence showed that he was elsewhere at the time.

On the other hand there is sufficient evidence to support this conviction for “receiving stolen property in the second degree,” as charged, and we will not disturb same on this appeal. (Authorities herein cited).

For the foregoing reasons, this case is due to be and is affirmed.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    William OWENS v. STATE.
    7 Div. 919.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    James F. Hinton, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of habeas corpus. The petition was filed by petitioner to contest his extradition to the State of South Carolina on a charge of armed robbery.

The issue is stated by petitioner as follows: “Does the accused in an extradition proceeding have the right to examine (the) physical description given by the victims from the demanding state in order to ascertain whether the identity of the alleged perpetrator of the offense in the requesting state corresponds or matches the physical identity or description of the accused and petitioner in a habeas corpus hearing resisting the extradition?”

Under Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), this factual issue is beyond the scope of the judicial inquiry which may be had in the asylum state once the governor of the asylum state has acted on a requisition for extradition based upon the demanding state’s judicial determination that probable cause existed.

The trial court correctly ruled that with regard to the defense of misidentification the only issue is whether the petitioner is the person named in the request for extradition. Doran, 99 S.Ct. at 535. This issue was not disputed.

The judgment of the circuit court denying the petition for writ of habeas corpus is affirmed. See Hendrix v. State, 405 So.2d 53 (Ala.Cr.App.1981).

AFFIRMED.

All Judges concur.


text:
    Robert WHEATT v. STATE.
    7 Div. 884.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.

      R. D. Pitts, Talladega, for appellant.
    Charles A. Graddick, Atty. Gen. and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted of trafficking in cannabis in violation of Alabama Code 1975, Section 20-2-80(l)(a) (Supp.1981). Sentence was six years’ imprisonment and a fine of $25,000.00. The issues on appeal concern the constitutionality of Alabama’s drug trafficking statutes.

I

The defendant’s argument that the fining of an indigent defendant is unconstitutional is without merit. Under the defendant’s reasoning, any fine levied against an indigent is excessive simply because the defendant is unable to pay the fine. Because the imprisonment of an indigent offender for failure to pay his fine is generally recognized as constitutionally impermissible, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the result advocated by the defendant would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other on conviction. Tate, 401 U.S. at 399, 91 S.Ct. at 671. As noted in Tate, supra, and Williams, 399 U.S. at 244-5, 90 S.Ct. at 2024, there are other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines, i.e., paying fines in installments.

In arguing that his fine is excessive and a denial of due process the defendant relies solely on Castle v. United States, 399 F.2d 642 (5th Cir. 1968). There the court found that the indigent defendant’s sentence of ten years’ imprisonment and fine of $10,000.00 on conviction of transporting five forged money orders in interstate commerce was not excessive punishment. The court noted that appellate courts have generally refused to disturb the trial court’s discretion in sentencing unless the punishment is so disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice and thus to constitute cruel and unusual punishment in violation of the Eighth Amendment. “The cases are legion that a sentence within the statutory limits is not cruel and unusual punishment.” Castle, 399 F.2d at 652.

In Castle, the court also answered the defendant’s contention that the mandatory fine violated his right to due process by serving no rehabilitative purpose.

“It might be argued that the excessive fining of an indigent violates substantive due process of law because it does not serve a legitimate end of punishment and, in fact, interferes with rehabilitation. The Supreme Court has recently indicated, however, that rehabilitation is not the only end of punishment and that special and general deterrence are still valid considerations in making the punishment fit the crime. Powell v. State of Texas, 1968, 392 U.S. 514, 88 S.Ct. 2145, 2153, 20 L.Ed.2d 1254.” Castle, 399 F.2d at 652.

See also Gregg v. Georgia, 428 U.S. 153, 184, 96 S.Ct. 2909, 2930, no. 30, 49 L.Ed.2d 859 (1976).

In People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975), it was recognized that rehabilitation is only one of the recognized purposes of penal sanctions. The highest appellate court for the State of New York noted:

“Faced with what it found to be a high recidivism rate in drug-related crimes, an inadequate response to less severe punishment, and an insidiously growing drug abuse problem, the Legislature could reasonably shift the emphasis to other pena-logical purposes, namely isolation and deterrence.”
* * * * * *
“Thus, to achieve the deterrence, so far seemingly elusive, the would-be drug trafficker had to be put on notice that, should he be caught, his fate was sealed regardless of his position in the hierarchy of distribution and regardless of the quantity of drugs in which he dealt.” Broadie, 371 N.Y.S. at 478-479, 332 N.E.2d at 344.

This entire area is summed up in Hindt v. State, 421 A.2d 1325 (Del.Supr.1980).

“Very little case law exists on the subject of constitutionally excessive fines. We find well stated, however, the guidelines set forth in State v. Trailer Service, Inc., Wis.Supr., 61 Wis.2d 400, 212 N.W.2d 683, 689 (1973):
“ ‘To determine excessiveness of a fine in a constitutional sense, consideration should be given to the object designed to be “accomplished, to the importance and magnitude of the public interest sought to be protected, to the circumstances and nature of the act for which it is imposed, and in some instances the ability of the accused to pay.” 24B C.J.S. Criminal Law, Section 1978c, p. 557 (1962). For a fine to be unusual or excessive, it must be so disproportionate to the offense as to shock public sentiment and contrary to the judgment of reasonable people concerning what is proper under the circumstances.’ ”
421 A.2d at 1333.

The fine levied against the defendant in this case was fixed and required by statute. Considering the serious problem Section 20-2-80 seeks to combat, the importance of the public interest sought to be protected and the enormous illegal profits involved in the undetected sale of marijuana, the mandatory $25,000.00 fine does not shock our sense of justice and is not disproportionate to the offense committed.

II

The defendant contends that Section 20-2-80(l)(a) constitutes cruel and unusual punishment because it requires a minimum term of imprisonment of three calendar years upon conviction of the possession or sale of a quantity of marijuana in excess of 2.2 pounds but less than 2,000 pounds.

In Broadie, supra, the Court of Appeals of New York upheld “drug” laws which contained sentencing provisions imposing a mandatory maximum sentence of life imprisonment and minimum from one or six years to eight and one-third years against a challenge that such provisions constituted cruel and unusual punishment.

“The principal issue is whether the so-called ‘drug’ laws, in mandating life imprisonment and, therefore, lifetime parole on parole release, prescribe sentences so disproportionate as would constitute cruel and unusual punishment in violation of constitutional limitations ....
“There should be an affirmance. The sentences are not grossly disproportionate in constitutional analysis. The Legislature may distinguish among the ills of society which require a criminal sanction, and prescribe, as it reasonably views them, punishments appropriate to each.” Broadie, 371 N.Y.S.2d at 474-5, 332 N.E.2d at 341.

After analyzing the history and purpose of the cruel and unusual punishment clause, the court noted that drug trafficking was a grave offense and posed a serious threat to society. The court found that the severe punishment of the drug trafficking statute was constitutionally permissible.

“Summarizing the various factors and comparisons pertinent to gross dispropor-tionality, the Legislature could reasonably conclude that drug trafficking was a grave offense; that the defendants, as sellers, posed a serious threat to society; and that the sentencing statutes, though severe and inflexible, would serve, at least, to isolate and deter. Compared both ‘internally’, to punishments for other crimes under the Penal Law, and ‘externally’, to punishments imposed elsewhere for the same or similar offenses, the narcotics laws are relatively severe, but not irrationally so, given the epidemic dimensions of the problem.
“On this analysis, the punishments in these cases .were not so grossly disproportionate that they may be declared unconstitutional.” Broadie, 371 N.Y.S. at 480-481, 332 N.E.2d at 345.

Florida has a drug trafficking statute very similar to Alabama’s. In State v. Benitez, 395 So.2d 514 (Fla.1981), the Supreme Court of Florida held that although the penalties of the drug trafficking statute were “certainly severe” they were “by no means cruel and unusual in light of their potential deterrent value and the seriousness of the crime involved.”

“Appellees also argue that the mandatory sentences in section 893.135 constitute cruel and unusual punishment since they are unnecessarily severe and disproportional to the nature of the crime. This Court has consistently upheld minimum mandatory sentences, regardless of their severity, against constitutional attacks arguing cruel and unusual punishment. See, e.g., McArthur v. State, 351 So.2d 972 (Fla.1977); Banks v. State, 342 So.2d 469 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975). The dominant theme which runs through these decisions is that the legislature, and not the judiciary, determines maximum and minimum penalties for violations of the law. While it is often said that in an extreme case— wherein the sentence was grossly disproportionate to the severity of the crime— the legislature’s judgment would run afoul of the constitutional prohibition, this Court has never addressed such a situation in the context of statutory sentencing minima.
“The recent decision of the United States Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), indicates that similar considerations prevail under the federal constitution. In that case,' the Court held that a mandatory life sentence imposed on the petitioner pursuant to a Texas recidivist statute did not constitute cruel and unusual punishment under the eighth amendment. The majority’s analysis of this area noted that:
“(t)his Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence which is grossly disproportionate to the severity of the crime.... In recent years this proposition has appeared most frequently in opinions dealing with the death penalty.... Because a sentence of death differs in kind from any sentence of imprisonment, no matter how long, our decisions applying the prohibition of cruel and unusual punishment to capital cases are of limited assistance in deciding the constitutionality of the punishment meted out to Rummel. “Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.

“Id., 445 U.S. at 271, 100 S.Ct. at 1138 (citations omitted). After analyzing one of these rare successful challenges, Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), the majority concluded:

“Given the unique nature of the punishments considered in Weems in the death-penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.

“Id., 445 U.S. at 273, 100 S.Ct. at 1139 (footnote omitted).” Benitez, 395 So.2d at 518.

We conclude that the mandatory sentences of Alabama’s drug trafficking law do not constitute cruel and unusual punishment. See also Paras v. State, 247 Ga. 75, 274 S.E.2d 451 (1981); Opinion of The Justices To The House of Representatives, 393 N.E.2d 313 (Mass.1979).

Ill

The defendant argues that Section 20-2-81(b) denies equal protection of the law to persons convicted of drug trafficking who cannot provide “substantial assistance” to law enforcement officials. In Benitez, 395 So.2d at 519, the Florida Supreme Court found this same argument “patently without merit.” As the court did in Benitez, we find that Section 20-2-81(b) does not operate to deny the defendant equal protection because it passes the “rational basis test.” Legislation which does not affect a “fundamental" right or a “suspect” class need only bear a “rational relationship” to a legitimate state interest. Thus a classification which does not affect a fundamental right or a suspect class will be upheld unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that a court can only conclude that the legislature’s actions were arbitrary and irrational. The National Organization For The Reform of Marijuana Laws v. Bell, 488 F.Supp. 123 (D.D.C.1980). Separate treatment of defendants does not violate any constitutional guarantee of equal protection so long as that treatment is reasonable and founded on a rational basis.

IV

Finally, the defendant argues that the drug trafficking provisions of the Alabama Code are unconstitutional because the trial judge cannot grant probation or reduce sentence unless the prosecuting attorney so moves the court. Section 20-2-81(b). This same argument was advanced in Benitez and rejected by the Supreme Court of Florida.

“Appellees’ second argument premised on the constitutional separation of powers is that subsection (3) usurps the sentencing function from the judiciary and assigns it to the executive branch, since the benefits of subsection (3) are triggered by the initiative of the state attorney. Under the statute, the ultimate decision on sentencing resides with the judge who must rule on the motion for reduction or suspension of sentence. ‘So long as a statute does not wrest from the courts the final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities.’ People v. Eason, 40 N.Y.2d 297, 301, 386 N.Y.S.2d 673, 676, 353 N.E.2d 587, 589 (1976) (emphasis in original) (rejecting a separation of powers attack on a similar provision in New York’s drug laws).” Benitez, 395 So.2d at 519.

We hold that Alabama’s drug trafficking provisions (Section 20-2-80-1) are constitutional. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . Alabama Code 1975, Section 20-2-80 (Supp. 1981) provides in pertinent part:
      “Except as authorized in chapter 2, Title 20
      “(1) Any person who knowingly sells, manufactures, delivers, or brings into this state, or who knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of cannabis is guilty of a felony, which felony shall be known as ‘trafficking in cannabis’. If the quantity of cannabis involved:
      “a. Is in excess of one kilo or 2.2 pounds, but less than 2,000 pounds, such person shall be sentenced to a mandatory term of imprisonment of three calendar years and to pay a fine of $25,000.00.”

      . Alabama Code 1975, Section 20-2-81 (Supp. 1981) provides:

        “(a) Notwithstanding the provisions of chapter 22, Title 15, with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.
      “(b) The prosecuting attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this article and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance. (Acts. 1980, N. 80-587, p. 926.)”


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Kenneth Lee BARKSDALE v. STATE.
    8 Div. 566.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.

      Clark E. Johnson, III, Arab, for appellant.
    Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant guilty of rape in the first degree under an indictment charging him with the violation of Code of Alabama 1975, § 13A-6-61, which provides in pertinent part:

“(a) A male commits the crime of rape in the first degree if;
“(e) He, being sixteen years or older, engages in sexual intercourse with a female who is less than 12 years old.”

The court fixed his punishment at imprisonment for forty-five years and sentenced him accordingly.

The undisputed evidence, including the testimony of the alleged victim, a female ten years of age at the time of the alleged offense, was to the effect that the alleged crime was committed by the defendant and that he was about thirty-two years of age at the time. The specific determination of any issue as to penetration would call for a detailed discussion of considerable evidence on the subject. It suffices here to say that evidence was sufficient to present a jury issue as to penetration.

The only issue raised on appeal is whether the trial court erred in refusing to give defendant’s requested “Charge # 4” as follows:

“The Court charges you that if you do not believe from the evidence that the defendant, being sixteen years or older, engaged in sexual intercourse with a female, [the name is given therein but is omitted herein for obvious reasons], who is less than 12 years old, but you do believe from the evidence that the defendant engaged in deviant [sic] sexual intercourse involving his sex organ and the mouth or anus of [the named victim], then you may find the defendant guilty of sexual misconduct.”

We hope to avoid as much ribaldry as possible by limiting our discussion of the issue presented to the brief remarks that follow.

There was some slight evidence as to “deviate sexual intercourse” between defendant and the alleged victim to be found in the following part of her testimony:

“Q. Did he do anything else to you or make you do anything to him?
“A. He — yes.
“Q. What did he do?
“A. He made me suck—
“Q. Well, are you afraid of Kenneth?
“A. Yes.”

Appellant argues: “Requested jury charge number four deals with the lesser offense of sexual misconduct, as found in Ala.Code, Sec. 13A-6-65(a)(3),” which provides:

“A person commits the crime of sexual misconduct if:
“(3) He or she engages in deviate sexual intercourse with another person under circumstances other than those covered by Sections 13A-6-63 and 13A-6-64. Consent is no defense to a prosecution under this subdivision.”

The conduct upon which appellant bases his contention is not an offense defined by Code of Alabama 1975, § 13A-6-65(a)(3), but an offense proscribed by § 13A-6-'63(a)(3), which provides:

“A person commits the crime of sodomy in the first degree if:
“(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.”

By § 13A-6-63(b), Sodomy in the first degree is a Class A felony, not a lesser included offense to the offense charged in the indictment. Both are Class A felonies and subject to the same punishment.

Moreover, any offense that appellant claims was a “lesser included offense” to the crime expressly charged was not in fact a part of the specific conduct of the defendant that furnishes a basis for the verdict and judgment herein, but a distinct, additional offense.

The trial court was correct in refusing defendant’s requested “Charge # 4.”

There is no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    CITY OF TALLAHASSEE, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellee.
    No. 60354.
    Supreme Court of Florida.
    Dec. 3, 1981.
    Rehearing Denied March 23, 1982.
    James M. Blue and Mark E. Levitt of the Law Offices of Hogg, Allen, Ryce, Norton & Blue, Tampa, and Bryan W. Henry, City Atty., Tallahassee, for appellant.
    Michael M. Switzer, Asst. Gen. Counsel and Vernon Townes Grizzard, Staff Counsel, Public Emp. Relations Commission, Tallahassee, for appellee.
    Peter J. Hurtgen and John B. Gallagher of Seyfarth, Shaw, Fairweather & Gerald-son, Miami, for City of Miami, City of Boca Raton and Florida Public Emp. Labor Relations Ass’n, Inc., amicus curiae.
    Robert M. Rhodes and James C. Hauser of Messer, Rhodes, Vickers & Hart, Tallahassee, for The Florida School Bds. Ass’n, Inc., amicus curiae.
    Jane E. Heerema of Roberts & Egan, Tallahassee, for State Ass’n of County Com’rs, Inc., amicus curiae.
    David V. Kerns, Gen. Counsel, Dept, of Administration, Tallahassee, Augustus D. Aikens, Jr., Div. Atty., Div. of Retirement, Tallahassee, Steve Shackelford, Atty. for Labor Relations, Office of Labor Relations, Tallahassee, and Caesar J. Naples, Gen. Counsel, Bd. of Regents, Tallahassee, for the Dept, of Administration, Div. of Retirement, Office of Labor Relations and Dept, of Ed., amicus curiae.
    C. Anthony Cleveland, Gen. Counsel, Tallahassee, for the Florida Ed. Ass’n/United, AFT, AFL-CIO, amicus curiae.
    Claude L. Mullís, League Counsel, Tallahassee, for Florida League of Cities, Inc., amicus curiae.
    John D. Carlson of Woods, Johnston & Carlson, Tallahassee, for Florida Ass’n of School Adm’rs, Inc., amicus curiae.
    Joseph H. Weil, City Atty., for City of North Bay Village and City of Sweetwater, Miami, amicus curiae.
    John-Edward Alley and Joseph W. Car-vin, Tampa, for the firm of Alley and Alley, Chartered, Miami, amicus curiae.

      Gene “Hal” Johnson, Gen. Counsel, Tallahassee, for Florida Police Benevolent Ass’n, Inc., amicus curiae.
    Irving Weinsoff, Miami, for American Federation of State, County and Municipal Emp. Council 79, amicus curiae.
    Robert A. Sugarman of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, and Joseph C. Segor, Miami, for Professional Firefighters of Florida, Inc., amicus curiae.
    Roy T. Rhodes of Horne, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, for Intern. Ass’n of Firefighters, Local 2339, real party in interest.
   ADKINS, Justice.

We have for review a decision of the District Court of Appeal, First District (City of Tallahassee v. Public Employees Relations Commission), 393 So.2d 1147 (Fla. 1st DCA 1981), holding unconstitutional portions of sections 447.301(2) and 447.309(5), Florida Statutes (1979). We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Appellant, City of Tallahassee (hereinafter The City), filed with appellee, Public Employees Relations Commission (hereinafter PERC), a petition for declaratory statement requesting answers to the following questions:

(1) Whether a pension plan covered by the City ordinance is a permissive or prohibited subject of bargaining under Sections 447.301(2) and 447.309(5), Florida Statutes (1979). (2) Assuming that pension plans covered by a city ordinance are permissive subjects of bargaining, if a collective bargaining agreement is silent on the specific subject of pensions, can the employer make a unilateral change in city ordinances covering pensions without violating Section 447.501, Florida Statutes, or the law as developed by the PERC decision in Orange County School Board, 3 FPER 280 (1977)? (3) Assuming that a pension plan covered by a city ordinance is a permissive subject of bargaining and that consent to bargain over a permissive subject of bargaining may be freely given or withdrawn at any time during negotiations, must a contractual waiver of an employer’s right to make unilateral changes as to a permissive subject such as pension be clear and unequivocal?

Id. at 1148-49.

In response to the petition, PERC held that §§ 447.301(2) and 447.309(5) removed from public employers the obligation to negotiate over pension plans to the extent that retirement matters are controlled by state statute or local ordinance. It also held that under § 447.301(2), a public employer has no statutory obligation to negotiate over a change in an ordinance or statute affecting pension plans even if the same is amended while a collective bargaining agreement is in effect. PERC refused to answer the third question, reasoning that it sought an impermissible interpretation of a collective bargaining agreement.

The City appealed the PERC order to the district court, which concluded that an overriding question, not raised by the parties, had to be ruled upon before the issues appealed could be resolved. The court thus ordered that briefs be filed on the following question:

Are the phrases “excluding any provisions of the Florida Statutes or appropriate ordinances relating to retirement” contained in Section 447.301(2), Florida Statutes, and “except those terms and conditions provided for in any Florida statute or appropriate ordinances relating to retirement and the applicable merit and civil service rules and regulations” contained in Section 447.309(5), Florida Statutes, rendered unconstitutional by the following provision of Article I, Section 6, of the Constitution of the State of Florida:
“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged”?

Id. at 1149 (footnote omitted).

After considering the briefs and hearing oral argument, the district court held that the phrases in question were unconstitutional under article I, section 6, of the Constitution and deleted them from the subsections of which they were part. The .court also held that its ruling rendered PERC’s ruling on the three questions moot, and reversed the same. The City then sought review by this Court.

The phrases held unconstitutional by the district court were contained in part II of chapter 447, Florida Statutes, which. pertains to public employees labor organizations and implements the provisions of article I, section 6, of the state constitution. Prior to the district court’s order, subsections 447.301(2) and 447.309(5) read, in part, as follows:

Public employees shall have the right to be represented by any employee organization of their own choosing and to negotiate collectively, through a certified bargaining agent, with their public employer in the determination of the terms and conditions of their employment, excluding any provisions of the Florida Statutes or appropriate ordinances relating to retirement.
* * * * * *
Any collective bargaining agreement shall not provide for a term of existence of more than 3 years and shall contain all of the terms and conditions of employment of the employees in the bargaining unit during such term except those terms and conditions provided for in any Florida statute or appropriate ordinances relating to retirement and in applicable merit and civil service rules and regulations.

(Emphasis added.)

Article I, section 6, of the Florida Constitution provides:

Right to work. — The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through á labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

In holding that the deleted phrases abridged the constitutional right of public employees to collectively bargain, the district court cited our decision in Dade County Classroom Teachers’ Ass’n, Inc. v. Ryan, 225 So.2d 903 (Fla.1969), in which we held “that with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.” Id. at 905 (footnote omitted). The district court reasoned that since private employees have the right to collectively bargain as to retirement benefits, public employees must also. We agree with the district court’s decision, and do not find the arguments to the contrary persuasive.

The City first argues that the phrases deleted do not limit or infringe upon the right of public employees to bargain, but rather “implement and define the scope of that right.” There can be no conflict, it reasons, between the sections in question and article I, section 6, because the latter never addresses the scope of bargaining while the former deal exclusively therewith.

This argument seems to us an exercise in semantics which ignores the real impact of the deleted phrases. The two sections, as enacted, affected much more than the “scope” of collective bargaining by public employees. Their practical effect, in barring negotiations on retirement matters, was to eliminate a significant facet of the collective bargaining process. To prohibit bargaining on so important an aspect of an employment agreement is, in our judgment, an abridgment of the right to collectively bargain.

The City also contends that a literal interpretation of the language of article I, section 6, would lead to the result that no limitation whatsoever may be placed on the right to bargain collectivély. Noting that several sections of chapter 447 regulate various aspects of bargaining (see §§ 447.-203(3), 447.209, 447.303, 447.307(3)(b), 447.-401, and 447.509), the City argues that under the district court’s application of article I, section 6, virtually the entire chapter is unconstitutional.

There is, however, a difference between the sections listed above and the phrases struck by the district court. The former regulate and limit various aspects of collective bargaining, providing an orderly procedure, and are a necessary and proper aspect of chapter 447. • The provisions deleted, on the other hand, did not simply regulate a particular aspect of collective bargaining— they prohibited it entirely. Article I, section 6, permits regulation of the bargaining process but not the abridgment thereof.

We also find unpersuasive the argument that the district court’s decision is ill-advised because it fails to consider the realities of the situation. The City contends that so many other sections of the statute are probably unconstitutional under the court’s interpretation that the entire act might be found invalid.

Even assuming for the sake of argument that such is correct, the decision was nevertheless the proper one. The unconstitutionality of a statute may not be overlooked or excused for reasons of convenience. While a court cannot resolve disputes in a vacuum, the “realities,” as the City calls them, of the situation cannot justify acceptance of that which is clearly unconstitutional.

The City next argues that the district court misconstrued that part of the Ryan decision in which we observed that with the exception of the right to strike, public employees should have the same rights of collective bargaining as do private employees. At the time of the Ryan decision, it notes, the law implementing article I, section 6 was section 839.221(2), Florida Statutes (1969). Thus in holding that all employees, public and private, have the same collective bargaining rights, this Court was considering the rights of employees under section 839.221(2), not under federal labor laws, reasons the City.

Although a proper subject of bargaining under federal labor law, retirement matters were not such, even for private employees, under section 839.221(2), and so our opinion in Ryan did not establish that public employees may bargain on that subject, the City argues. Rather, it continues, Ryan only established that public employees may bargain on any subject permissible under section 839.221. We disagree, however, with that interpretation and application of our decision in Ryan.

First, we note that the language employed in the Ryan holding is quite straightforward and clear:

We hold that with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.

Id. at 905.

The opinion does not limit the rights of public employees by reference to a particular statute or in any other way qualify the same, except for the reference to strikes. Rather, it very clearly provides that public employees may collectively bargain on the same matters as may private employees. If private employees may bargain over retire-' ment matters, then under the plain language of Ryan so too may public employees.

In Dade County Classroom Teachers Association, Inc. v. Legislature, 269 So.2d 684 (Fla.1972), we reiterated the above, noting that “with the exception of the right to strike, public employees do have the same right of collective bargaining as are [sic] granted private employees by Section 6 of the Declaration of Rights, Florida Constitution . .. . ” Id. at 685. The language in Dade County Classroom Teachers Association, Inc. v. Legislature, like that in Ryan, does not qualify the collective bargaining rights of public employees by reference to any then-existing statute, rather, it describes those rights as being commensurate with those of private employees. It does not matter whether private employees were not assured the right to bargain over retirement matters at the time of the Ryan decision. What matters is that today private employees are permitted to collectively bargain on that subject and so public employees must also be so treated.

In so holding, we do not mean to require that the collective bargaining process in the public sector be identical to that in the private sector. We recognize that differences in the two situations require variations in the procedures followed. The Ryan opinion recognized that the collective bargaining process for public employees involves many special considerations, that it is not the same as in the private sector, and that rules and regulations are a necessity:

In the sensitive area of labor relations between public employees and public employer, it is requisite that the Legislature enact appropriate legislation setting out standards and guidelines and otherwise regulate the subject within the limits of said Section 6. A delicate balance must be struck in order that there be no denial of the guaranteed right of public employees to bargain collectively with public employers without, however, in any way trenching upon the prohibition against public employees striking either directly or indirectly or using coercive or intimidating tactics in the collective bargaining process.

Id. at 906.

It would be impractical to require that collective bargaining procedures for retirement matters be identical in the public and the private sectors. We must make sure, however, that the constitutional right of all employees to bargain collectively is not abridged. The sections here in question are not a “reasonable regulation of the scope of collective bargaining”, as the City characterizes them.

Finally, we consider the argument that the phrases are necessitated by article X, section 14, of the State Constitution, which provides:

State retirement systems benefit changes. — A governmental unit responsible for any retirement or pension system in whole or in part by public funds shall not after January 1, 1977, provide any increase in the benefits to the members or beneficiaries of such system unless such unit has made or concurrently makes provision for the funding of the increase in benefits on a sound actuarial basis.

This argument forgets that the state need not agree to any proposal for retirement benefits or the like which is actuarially unsound. All that it must do under our interpretation of article I, section 6, is negotiate on the subject.

The City contends that because the state cannot agree to any type of pension plan which would be actuarially unsound, the right to bargain over the same would be a hollow one. Why concede such a useless bargaining right, it asks, when the employer has neither the authority nor the ability to agree to any request? That assessment of the situation is, however, incorrect. The public employer can agree to pension requests if those requests are within certain established bounds. The right to bargain for retirement benefits which fall within the established boundaries is not hollow and useless. It is an important right, one protected under article I, section 6.

Retirement benefits have become an important and integral part of employment agreements. Because retirement provisions are necessarily a part of the collective bargaining process, and the phrases in question abridged said process, and the state has failed to demonstrate an interest justifying the abridgment, we find that the district court of appeal reached the proper result in its opinion. The decision appealed is affirmed.

It is so ordered.

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