author: BEATTY, Justice.

text:
    Ex parte William HOOD and Michael Hood. (Re: Michael Hood and William Hood v. City of Bessemer).
    80-312.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    Rehearing Denied Oct. 2, 1981.

      David A. Sullivan, Birmingham, for petitioners.
    J. H. McEniry, III, Bessemer, for respondent.
   BEATTY, Justice.

Certiorari was granted to resolve a conflict between the terms of statutes pertaining to appeals from convictions in municipal courts. The facts in these consolidated cases are amply recited in the opinion of the Court of Criminal Appeals. That court affirmed judgments of conviction in circuit court for inharmonious reasons.

The issue before us is whether or not the circuit court obtained jurisdiction of these municipal appeals. The two statutes which appear to govern that question are sections 12-22-110 and 12-14-70 of the Code of 1975. Section 12-22-110 states:

When an appeal is taken to a circuit court in any criminal case from a district or municipal court, the appeal shall be returned to the circuit court within 10 days following the day on which the appeal was taken and shall be triable at the next session of the court.

This section was originally enacted in 1915 and was successively carried forward, ultimately appearing in the Code of 1975 when that compilation was approved on February 15, 1977. Meanwhile, the Judicial Article Implementation Act, Act No. 1205, approved on October 10,1975, included Article 8 which subsumed the subject of municipal courts (as well as district courts), including the subject of appeals. Acts of Alabama 1975, Act No. 1205, Article 8-105 at 2470-71 states:

(d) When an appeal has been taken, the municipality shall file the notice and other documents in the court to which the appeal is taken within fifteen days, failing which the municipality shall be deemed to have abandoned the prosecution, and the defendant shall stand discharged and the bond shall be automatically terminated.

This provision became § 12-14-70(d) upon the approval of the Code of 1975.

As the majority of the Court of Criminal Appeals has observed, § 12-22-110 in the past has been interpreted as directory only. Tribble v. State, 28 Ala.App. 567, 190 So. 101 (1939); Thompson v. State, 26 Ala.App. 264, 157 So. 886 (1934). As Bookout, J., has noted, however, a comparison of the two statutes clearly reveals significant differences. Section 12-22-110 contains no sanction for noncompliance with its terms, while § 12-14-70(d) contains express language describing the penalty imposed for noncompliance. The process for determining the difference between a statute which is directory and one which is mandatory is discussed in Rodgers v. Meredith, 274 Ala. 179, 146 So.2d 308 (1962). Based upon that opinion and the authorities cited therein it may be stated as a general proposition that a mandatory statute is one which prescribes, in addition to the requirement of performing the thing specified, the result obtained if that performance is not done; if the statute is directory only, the statute’s content is limited to the performance required. Black’s Law Dictionary, 5th ed. at 414. It is clear, therefore, that the legislature intended that § 12-22-110 be directory only, Thompson, supra. It is equally clear, however, that § 12-14-70(d), containing mandatory and peremptory language describing the results of noncompliance, was intended by the legislature to require strict compliance with its filing requirements.

Article 8 of Act 1205 contains a repealer clause, § 8-102, providing that “[a]ll laws or parts of laws which conflict with this Act are repealed.” That clause effectively repealed § 12-22-110 which it now appears, should not have been carried over into the Code of 1975, and therefore when § 12-22-110 is construed in pari materia with § 12-14-70(d) the former has no operative effect.

The remaining question, then, is whether the requirements of § 12-14-70(d) were complied with by the City of Bessemer, that is, were “the notice and other documents” filed in the circuit court within fifteen days?

The answer to that question depends upon whether or not the proceedings in the municipal court were based upon complaints, or as sometimes described, affidavits of complaints. If either proceeding was based upon a complaint then that complaint under § 12-14-70(d) was required to be filed along with the “[notice of appeal] and other documents. ... ” See e.g., Ex parte McElroy, 241 Ala. 554, 4 So.2d 437, 438 (1941). If that proceeding was based upon a complaint, then that complaint is “the notice” referred to in § 12-14-70(d) and must be filed along with the “other documents.” Municipal court cases, however, frequently proceed upon an arrest, without a warrant based upon a complaint, as in an instance like the present, where a police officer answering a call makes an arrest for an offense committed in his presence. In that case there is no complaint, only a “bench blotter,” or record of arrest and charge. In the latter instance, there is no complaint to be filed in circuit court pursuant to the appeal.

Of course, even in such a case as the latter instance a party to a municipal court proceeding may demand a written complaint (statement of the charges) because he is entitled “to be apprised of the nature and character of the proceeding against him.” McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 So. 629, 630 (1911). But if the party in municipal court proceeds to trial in that court without demanding a written complaint, he has waived the right to a written complaint and “cannot for the. first time avail of it on appeal." Brooks v. City of Birmingham, 31 Ala.App. 579, 20 So.2d 115 (1944); Chaney v. City of Birmingham, 246 Ala. 147, 21 So.2d 263 (1944); Robinson v. City of Sylacauga, 37 Ala.App. 565, 72 So.2d 125 (1954).

Following the appeal from a conviction in the municipal court, the proceedings in circuit court are de novo. Code of 1975, § 12-14-70(a). A complete transcript of the municipal proceedings is not required to be sent to the circuit court on such an appeal. A quotation from a case very similar to this is apropos:

The appellant was convicted in the circuit court of Bessemer of the offense of resisting an officer. The case originated in the recorder’s court of the city of Bessemer, and while the judgment of that court so set out in the record does not show for what offense he was convicted, the appeal bond executed by the defendant shows that it was for such offense. In the circuit court the solicitor filed a complaint, setting out in haec verba the ordinance, which the defendant was charged with violating.

The defendant’s counsel moved to dismiss the cause, contending there was nothing in the record showing the case had been tried and appealed to the circuit court; that there was no transcript or judgment showing that the recorder had tried the defendant, and that the cause was improperly in the circuit court. This motion was properly overruled. The trial in the circuit court was de novo, and we fail to see how the defendant could have been hurt because a more full and complete transcript was not sent to the circuit court. [Bouyer v. City of Bessemer, 17 Ala.App. 665, 666, 88 So. 192 (1921); cited in Chaney, supra.]

And in Ex parte McLosky, 210 Ala. 458, 459, 98 So. 708 (1923), this Court held that:

[T]he recitals of the appeal bond suffice to show the trial and conviction of the defendant in the county court, and his appeal from a conviction to the circuit court, thereby giving to the latter court jurisdiction of the cause.

The record discloses that these municipal prosecutions were initiated by the arrest of the defendants by police officers responding to a disturbance. The record also shows that each pleaded not guilty to the charges in municipal court, which were expressed in the “record of arrest” document in each case. When their municipal convictions were appealed (see § 12-14-70(c)) their appeal bonds were filed by the city on the day after they were made by the petitioners and approved by the court, well within the fifteen day requirement. There were no affidavits of complaint in municipal court, and the record is bare of any suggestion that either of these defendants made any demand or request for a written complaint against him at that time. No written complaint having been demanded in the city court, no (written) “notice” was required to be filed by the city under § 12 — 14-70(d). We believe that the language of Mr. Justice Simpson in Chaney, supra, at 246 Ala. 147, 21 So.2d 263, is applicable here:

In order to abate the proceedings in the appellate court because of the lack of an affidavit [of complaint] before the recorder the transcript must affirmatively show that objection to trial without one was seasonably interposed when accused was arraigned and tried in the recorder’s court. No defect in the proceedings, other than want of jurisdiction apparent on the face of them, will subject the cause to dismissal on appeal. To authorize dismissal of the proceedings in the appellate court it must affirmatively appear that the judgment of the lower court was void for lack of jurisdiction. [Citations omitted.]
It is held that the jurisdictional recitals of the appeal bond suffice to give the court to which the appeal is taken jurisdiction of the cause . . . and on appeal the complaint signed by the city prosecuting attorney is regarded as sufficient to satisfy the requisites that the accused is entitled to be apprised of the nature and character of the accusation, although the record does not disclose an affidavit before the recorder. [Citation omitted.]

The appeal bonds filed in circuit court the day following their execution affirmatively disclose the offenses of which the defendants were convicted, their execution by the defendants and their sureties, their approval by the city recorder, and jury demands endorsed thereon by their counsel. The circuit court, accordingly obtained jurisdiction of those cases, and the “other documents” requirement of § 12-14-70(d) was thus complied with when those documents were filed in circuit court. Insofar as the notice requirement is concerned, the record also discloses that on December 4, 1979, the date of their trials in circuit court, the city prosecutor filed complaints against these defendants, who in open court waived arraignment on the original complaints, agreed to proceed upon the original complaints, and pleaded not guilty. The complaints filed in circuit court were not documents which had theretofore been demanded; therefore, they were not “other documents” under § 12-14-70(d). The records made in municipal court were sufficient to apprise the defendants of the accusations against them. And, although not necessary to this decision the defendants, as we have shown, agreed to proceed on the original complaints, thus waiving any objection they might have had to notice in the circuit court proceedings, which set out the ordinances each defendant was charged with violating. On the time for filing the complaint in the circuit court, see Aderhold v. City of Anniston, 99 Ala. 521, 12 So. 472 (1893).

Accordingly, the decision of the Court of Criminal Appeals affirming the convictions is affirmed.

AFFIRMED.

All the Justices concur.


source: Caselaw Access Project

author: CLARK, Retired Circuit Judge. BOWEN, Judge,

license: Public Domain

text:
    David Edwin LEDBETTER v. STATE.
    8 Div. 323.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty under an indictment charging him with robbery of Robert Hogan. The property allegedly taken was lawful currency of the United States of America of an aggregate value of $320.00. The court fixed defendant’s punishment at imprisonment for life and sentenced him accordingly.

The statement of facts in appellant’s brief is adopted by appellee as substantially correct. We treat it accordingly. The only eyewitnesses to the alleged robbery were the defendant, the victim and a man by the name of Brashers, who according to the undisputed evidence was killed by a dutiful law enforcement officer soon after the robbery. The only eyewitnesses who testified as to the robbery were defendant and the victim.

According to the testimony of the victim, Robert Hogan, he was the manager of Sandy Motors, a used-car lot on Highway 31 South in Decatur on September 13, 1979, when defendant and Brashers came to Sandy Motors and inquired about a 280Z Datsun automobile. They came on two occasions that day, first about 3:00 P.M. and the other about 3:15 P.M. Only Brashers talked to Hogan about purchasing the Dat-sun. During the interval they were gone from the lot, Mr. Hogan received a telephone call from a person who said he was the young man who had just looked at the Datsun and that he was returning to discuss purchasing the car. Upon the return of Brashers and defendant, Hogan and Brash-ers again talked about the automobile. During the discussion, Brashers ordered Hogan to get up from his desk and told him he was being held up. Hogan stood up from the desk, and the defendant stuck a pistol to his back. Hogan was tied, gagged and placed on the bathroom floor, and the money was taken from him. Hogan did not know whether Brashers or defendant took the money; he did not know if defendant said anything after Brashers told Mr. Hogan that he was being robbed. Mr. Hogan remained tied up in the bathroom for approximately ten or fifteen minutes before untying himself. Brashers was bearded and wore a straw cowboy type hat. Hogan did not recall seeing a knife on Brashers.

Defendant testified that on September 13,1979, he lived in Huntsville with his wife and child, that Brashers came by his home that day and asked him to ride with him to Decatur to pick up an automobile. He got in the car Brashers was driving, which belonged to Brashers’ girl friend, and Brash-ers drove it to Decatur, after stopping at Krogers in Huntsville to cash a check and putting some gas in the car. They stopped at Sandy Motors on two occasions, and Brashers talked with Mr. Hogan about purchasing the Datsun. After Brashers stopped at the car lot the second time, he drove to a telephone booth in a shopping center and made a phone call while defendant remained in the car. When Brashers returned to the automobile, he told defendant he was going to steal the Datsun 280Z.

According to further testimony of the defendant, he told Brashers he did not “want any part of stealing anything,” and Brashers told him that if he did not help him steal the car, he would kill the defendant and the defendant’s wife and child. Brashers then removed a pistol from a brief case, told defendant it was unloaded and handed the pistol to defendant. While in the automobile, Brashers obtained another pistol from under the driver’s seat. He told defendant that the pistol he handed him was to be used by defendant and for defendant to get behind Hogan with the pistol. Defendant also said that during the time he was with Brashers, Brashers had a “factory made knife” in a “brown pouch or holster on his side.”

As to what happened while defendant and Brashers were together in the room or office of Mr. Hogan and upon Mr. Hogan’s return to the room after talking a short time with a prospective customer, the defendant testified:

“While we were in there; Woody [Brash-ers] and I, Woody kept asking me if I was going to do it, if I was going to do it, and if I was afraid to do it, and that made me that much more frightened of him because I didn’t want to do it. I knew that if I didn’t he would kill me and kill my family. Okay, Mr. Hogan and his customer came back in from the outside lot and went into a front office and sat down. I was standing by the wall and Woody was still in the front room with me. He went up and asked Mr. Hogan if he could use the phone and call his mother. Woody went back in then and used the phone on the front desk in the front office and he made a phone call and I guess he was acting like he was talking to his mother. Then he hung up and then Mr. Hogan’s customer left and Mr. Hogan came back into the room where we were. As I said, I was afraid of Woody and what he had told me and I was trying to put it off for as long as I could and he was always watching me everywhere I went. Everywhere I stood his eyes was on me and he was right there beside me. Mr. Hogan came back in and sat down and Woody was still sitting in front of the desk. They were talking for a few minutes and I was standing over by the wall and then Woody looked at me and kind of nodded his head a little bit and that scared me even that much more because I didn’t want to do it even though he had told me he would kill me. I had to gather all the courage I could to do what he had said. I walked over to the window, stood in front of the window for a few moments and turned around and walked behind Mr. Hogan and put the gun to Mr. Hogan’s back. When I put the gun to Mr. Hogan’s back he raises up and Woody jumps up and he takes some black straps from his pocket and — ”

According to further testimony of the defendant, when Hogan stood up, defendant took the gun from his back “and let it fall to my side.” Brashers then, tied Hogan, put him in the bathroom, and took his money and money clip. Thereupon, Brashers took the keys for the Datsun off the keyboard, pitched them to defendant, told defendant he was going to get gas for the car, and ordered defendant to drive in front of him. Defendant drove the vehicle Brashers had been driving that day, and Brashers drove the stolen 280Z Datsun to a gas station where Brashers purchased gas. Defendant then drove out highway No. 67 toward Interstate 65. He had placed the pistol he had been handed by Brashers under the driver’s seat. While on Highway No. 67, Brashers directed him by use of his blinker lights to pull over. According to the witness, the following then occurred:

“I pulled into that restaurant, sir, and he pulled in on my left side. He come to the passenger’s side of the car on the far side and opens the door and grabs his brief case and reaches under the seat and pulled out the long pistol and told me that we were going to Huntsville. To get on the Interstate. With that he shut the door. I waited for traffic to clear and pulled out.”

His long testimony ended with testimony to the effect that he proceeded north on highway 1-65 to the Huntsville exit (Highway 20 exit) where he and Brashers turned off in the respective automobiles they were driving. There is no evidence that they were in company, observation, or conversation with one another thereafter. Details as to what happened to Brashers after he turned off to go in the direction of Huntsville are not shown by the evidence presented to the jury, but we state for the purpose of a better understanding of one or more issues discussed hereafter that in proceedings on the trial out of the presence of the jury, it was shown that law enforcement personnel of Morgan, Limestone and Madison County had been alerted as to the robbery, that they were on the lookout for the robbers and that there was a confrontation thereafter between Brashers and an officer, in which the officer was shot by Brashers, but that as badly wounded as the officer was, he returned fire and succeeded in killing Brashers.

It is to be observed from the foregoing summary of the testimony of the defendant and the victim of the robbery that there is little conflict in the evidence. The parties are in agreement that the issue of defendant’s guilt turns on whether his participation in the robbery of Mr. Hogan was the result of coercion or duress exerted upon him by Brashers. The issue was presented to the jury, which resolved it against the defendant. Its verdict is supported by the evidence, and there is no contention to the contrary.

In the process of qualifying and selecting the jurors for the trial of the case, counsel for the defendant asked the members of the panel from which the jury was to be selected the following questions:

“Have any of you ever yourselves been the victim of a crime of violence of any sort, such as being shot at, shot, stabbed, robbed, burglarized?
“Any of you have any close members of your family; those are the same folks that I just mentioned to you, that has ever been victims of a crime just like we have talked about? Close friends or family?
“Anyone else that has had a good friend or family or yourselves that has been a victim of any sort of criminal activity?”

In a motion for a new trial, defendant asserts in each of three grounds thereof that a member of the jury, one who became the foreman of the jury, “failed to truthfully answer” one of the above questions. It is without dispute that the particular juror did not respond to any of the questions. It is uncontroverted that only an affirmative answer, if true, was required.

On the hearing of the motion for a new trial, the particular juror was called as a witness by the movant. No other witness testified on the hearing. The juror was intensively interrogated by each party. That part of his testimony that defendant contended should have been revealed by the juror, at the time the prospective jurors were asked the three questions quoted above, is substantially covered by the following excerpt therefrom:

“Q. Was it your house actually shot by rifle or shotgun blast?
“A. My house was but I wasn’t.
“Q. Were you not in the house? You and your wife when it took place?
“A. We was.
“Q. Is it not true, Mr._, that your house, while you were inside, it was shot late one night.
“A. Yes, sir.
“Q. And also on the same evening while you were in the house, wasn’t two vehicles that were in front of your house also shot. The glass and windows shot out?
“A. Yes.
“Q. And it happened just before midnight on May 3, 1979, did it not?
“A. Yes, sir.
“Q. And were you asleep when this took place?
“A. Yes, sir.
“Q. And the shotgun blast or the rifle blast that hit the house woke you up? “A. One or the other.
“Q. All right. There was several blasts at your vehicles and your house and one of them woke you up? is that what you are saying?
“A. No, I’m not saying that. Something woke me up.
“Q. Okay. Well, then after you work [woke] up did you then call the Decatur Police Department to come out and investigate the shooting of your house and vehicle?
“A. Yes, sir.
“Q. And did they in fact come out and investigate?
“A. Yes.
“Q. You didn’t know who this was, did
you,-?
“A. No, sir.
“Q. No one was ever charged?
“A. No.
“Q. No warrants taken out?
“A. No, sir.
“Q. No case in court?
“A. No case in court, no, sir.
“Q. Now, there has been a police report that has been submitted into evidence here about some shots being fired in front of your home back on May 3, 1979. At that time, I believe, the underpinning of your house was shot, is that correct?
“A. Yes, sir.
“Q. And some shots hit some vehicles out front?
“A. Yes, sir.
“Q. Were you out front at the time the shots were fired?
“A. No, sir.
“Q. Then you of your own personal knowledge don’t you know who the shots were fired at?
“A. No, sir.
“Q. You don’t know who fired the shots? “A. No, sir.
“Q. Then you don’t know who the victim — supposedly the victim of the crime was, do you?
“A. No, sir.
“Q. You don’t know if a gun battle took place in front of your house or who was being shot at, do you?
“A. No, sir.”

The police report that was introduced in evidence as to the incident further revealed that there were “three shotgun shells,” presumably empty, in the street in front of the juror’s house, and that the juror had stated that a named man had made threats against him because he had had the named man arrested and that the juror “thinks [the man named] could have done it.” There was no testimony as to the identity of the designated person. The juror was an ex-policeman.

Our review of the evidence on the hearing of the motion for a new trial and the transcript of the proceedings of the interrogation of the prospective jurors convinces us of the worthiness of serious consideration of the asserted grounds of the motion for a new trial, but we are not convinced that evasiveness by the juror is ascertainable from his silence under the circumstances. However, we cannot say with reasonable certainty that it was not. Much depends on the accuracy, clarity, tone and context of the questions asked. The more direct, specific and unambiguous they are, the more likely the evasiveness of a failure to respond affirmatively. It is argued by appellant that the fact that the juror was an ex-policeman indicates that he was more knowledgeable than the ordinary citizen as to whether to answer such questions affirmatively. Perhaps this is true, but, on the other hand, his experience in his former status might have rightfully given him the view that an affirmative answer would not have been absolutely accurate. The evidence on the hearing was sufficient to show that probably the only incident involved, the firing of three shotgun shots in front of his house, was some “sort of criminal activity” as stated in one of the three questions and that the juror was a potential victim thereof, but it is not sufficient to show that he was the the victim of a crime of violence “such as being shot at, shot, stabbed, robbed, burglarized.” Of some significance is the fact that when the first question was asked, one juror answered that one night she and her sister were robbed when they were on the way home; when the second question was asked, another answered, “My husband was mugged in Baltimore, Maryland, not too long ago"; when the third question was asked, a prospective juror answered that a brother of his had been “shot.”

There is no contention that the firing of a shotgun in front of the juror’s house was of the same or kindred nature as the robbery alleged in the instant case. There is nothing to indicate that the particular incident would have made the particular juror biased or prejudiced against the defendant in this particular case, or that knowledge thereof by defendant or his attorney would have brought about an elimination of the juror from the jury finally selected. The trial court was not in error in overruling defendant’s motion for a new trial.

Appellant argues that the trial court committed prejudicial error in a ruling in favor of the State during the closing argument of counsel for defendant, as shown by the following excerpt from the transcript:

“MR. MOEBES: [Counsel for the State]: Your Honor, we object. There is absolutely no evidence as to anybody killing anyone.
“THE COURT: I sustain it. It’s outside the evidence.”

We quote and apply what was held in S. S. Kresge Co., d/b/a K-Mart v. Ruby, Ala., 348 So.2d 484, 489 (1977) in language of Justice Faulkner:

“K-Mart urges reversible error in a statement of opposing counsel during closing remarks to the jury. The record in this case does not disclose the challenged remark but only defense counsel’s objection thereto:
“‘MR. HENDERSON: We object to Big-K being connected to K-Mart. There has been no evidence of that, and I think he is talking about the financial status of K-Mart which is totally irrelevant, and further he is indicating that Big-K is a part of K-Mart, which it is not.
“ ‘THE COURT: Overrule your objection.’
“Since the record is silent as to the substance of the comment, we may not speculate about the prejudicial qualities thereof. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); Deverell v. Horton, 285 Ala. 588, 234 So.2d 879 (1970). In the matter of an attorney’s argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 289 So.2d 603 (1974).”

Notwithstanding the fact that there is a difference between the instant case and the cited case in that in the one the court sustained the objection to the argument and in the cited case it overruled the objection to the argument, there is sameness in that in each case on appeal the argument to which the objection was addressed is not to be found in the record, which precludes review thereof on appeal.

The trial court refused the following charge requested in writing by defendant:

“Charge No. 54.
“The Court charges you, members of the jury, that if, upon considering all of the evidence, you have a reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.”

It has been consistently held since Rakestraw v. State, 211 Ala. 535, 537, 101 So. 181, 183 (1924), that such a charge states a correct proposition of law and that its refusal constitutes reversible error unless the charge is substantially covered in other instruction of the court to the jury. Atkins v. State, Ala.Cr.App., 369 So.2d 303 (1979); Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973); Johnson v. State, 42 Ala.App. 511, 169 So.2d 773 (1964); Ernest v. State, 40 Ala.App. 344, 113 So.2d 517 (1959). Nevertheless, it is firmly established that a refusal of the charge does not constitute reversible error if it is substantially covered by the court’s oral charge or by any written instruction to the jury. King v. State, Ala., 356 So.2d 1220 (1977), rev’g King v. State, Ala.Cr.App., 356 So.2d 1216 (1977); Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972). It is our view that the refusal of defendant’s requested charge 54 is saved from error by the court’s oral charge, particularly the following portion thereof:

“The law also provides that if you have a reasonable doubt of the guilt of the defendant, whether it’s based on this defense or any other bit of evidence, either evidence that is in the case or lack of evidence, then the reasonable doubt of the guilt of the defendant is sufficient to justify an acquittal of the defendant. The law provides that you must be convinced from the evidence beyond a reasonable doubt of the guilt of the defendant in order to convict him. (Emphasis supplied).”

One of the most seriously controverted questions of law during the trial of the case was as to the admissibility of evidence as to the transactions between Brashers and others that occurred after the automobiles being driven by Brashers and defendant left Interstate 1-65 at the Alabama Highway 20 exit north of the Tennessee River. The question first arose during the latter part of the direct examination of the defendant, in which there was a lengthy colloquy among the court and counsel for the respective parties that consists of approximately ten pages of the transcript, during which counsel for the State objected “to anything that occurred outside of Morgan County,” and the court attempted to explain that merely because something happened out of Morgan County did not prevent its admission in evidence and endeavored to obtain an expression from defendant’s counsel as to the specific evidence he wished to offer. During that time defendant’s counsel said:

“As I understand, you have a knife that was taken off — we expect the evidence to show that was taken off of Brashers. It was strapped on his belt with a pouch in Madison County directly up from Limestone County, which is also an issue here in this trial today.”

Soon thereafter the court conducted a hearing out of the presence of the jury in order for all concerned to come to a distinct understanding as to what defendant proposed to prove (and his reasons therefor) and as to the State’s objections and grounds thereof, which may not have been a complete success. We think it would improperly and unduly lengthen this opinion to quote such a colloquy in its entirety, but a part of it was as follows:

“THE COURT: Yes, hold the jury up just a minute. I will give you the benefit of a ruling on it, but I think it’s not necessary for us to get in a fuss about that on either side of this thing.
“MR. NELSON: Judge, may it please the Court, I intend to show by State Investigator Lt. Patterson and by other witnesses that approximately ten minutes or so or less and that after they left Moores-ville at 4:00 that Brashers was in Madison off in a field with this knife on his belt and he attacked a police officer. As I understand the Court’s ruling, I cannot call a witness and put that testimony on?
“THE COURT: I did not say that and I do not — All I am wanting to say now is don’t offer anything before the jury which I ruled out. Now, if anything comes up and you want to offer it before the jury to show something, let me know if there is any question about it. If there is not any question about it, if it’s offered I will just have to rule on it at the time.
“MR. NELSON: Do I understand the Court’s ruling is that neither the State nor the defense can go into anything that ■happened in Limestone or Madison Counties?
“THE COURT: I didn’t say that. I have not ruled on anything like that. Right now I am ruling on the questions presented.”

The next witness called by defendant after he had testified was Lt. Patterson. During his testimony, defendant made repeated effort to introduce by him a knife that was found on the body of Brashers after he had wounded an officer and the officer had returned fire and killed Brash-ers near Madison. The court sustained the State’s objections. Thereafter defendant attempted to show by two witnesses details of an altercation between Brashers and a law enforcement officer near Beadingfield’s Store on Alabama Highway 20 about 4:00 P.M., the day of the robbery and that Brashers fired shots at the officer. The court sustained objections to the proposed testimony.

Before defendant’s case was closed, he called Mr. Roger Morrison of the Department of Forensic Sciences in the Huntsville regional laboratory as a witness. Mr. Morrison testified that he was present on September 13, 1979, in the city limits of Madison when a belt and scabbard were taken off the body of Brashers. Thereafter a large knife which it was stipulated was found near Brashers’ body “at the scene on September 13th,” was placed in the scabbard and it was shown that the scabbard would snap “if the mud wasn’t in there.” The State objected “unless it’s going to be properly connected up and identified as being a part of the crime here in Morgan County.” The court said that “on the assurance that a witness will identify that scabbard as the scabbard ... I am going to overrule that.” The transcript then shows:

“(Whereupon, said belt, knife, and scabbard were duly marked as Defendant’s Exhibits 1, 2, and 3 and received in evidence).”

Promptly thereafter, defendant testified that the “belt and belt buckle and scabbard were on Brashers when they were at Sandy’s car lot on September 13.”

We are of the opinion that the trial court was not in error in sustaining objections of the State to questions asked by defendant as to transactions in general, or the details of transactions, between Brash-ers and law enforcement personnel; that there was no showing by defendant of any specific evidence that it proposed to introduce that would have been admissible other than the evidence as to the belt, the scabbard and the knife found at the side of Brashers after he was killed, which were eventually offered and received in evidence. We find no error prejudicial to defendant in the rulings of the court with respect to what occurred after defendant and Brash-ers left 1-65 by the Alabama Highway 20 exit. It should be noted that there is no contention that defendant himself was engaged in any transaction with Brashers after they left that point or that he was present when Brashers had any encounters with law enforcement personnel. Furthermore, it should be observed that there is no contention by the State that any of the conduct by defendant after the robbery constituted evidence of flight by him as evidence of his guilt. There is no contention that the evidence which defendant says should have been admitted, should have been admitted on the ground that it tended to explain in a way favorable to defendant other than as it tended to explain in a way favorable to him his conduct in actively participating in the undisputed robbery of Mr. Hogan.

We continue to consider the issues raised by appellant in the order of their presentation in appellant’s brief. The next issue presented is whether the trial court erred in “denying defendant a preliminary hearing.” The motion for a preliminary hearing was filed on September 18, 1979, after the indictment of defendant had been returned, within about fifteen days from his arrest. The position is taken by appellant that he was entitled to a preliminary hearing under Code of Alabama 1975, § 15 — 11—1, providing that one “charged with and arrested for a felony before his indictment shall have an absolute right to a preliminary hearing on said charge” upon his demand therefor “within 30 days following said arrest.” Notwithstanding some ambiguity and resultant confusion in the quoted language of Acts 1975, No. 1205, § 4-106, as codified in § 15-11-1 of the 1975 Code, it was held in Duncan v. State, Ala. Cr.App., 369 So.2d 885 (1979), per Judge Bookout, speaking for the majority, that no reversible error results from the refusal or failure of the trial court to grant defendant’s request for a preliminary hearing that is made after an indictment has been returned against him.

The case was set for arraignment on September 21, 1979, at which time it was made known by defendant that he desired legal counsel and that he was indigent. The court appointed counsel for him, who appeared for and with him in an entry of a plea of not guilty. The case was then set for trial on October 15, 1979. On September 28, it was made known to the court that defendant’s family had employed an attorney for him, and, with the consent of the previously appointed attorney, the retained attorney appeared for defendant and the appointed attorney was released from further responsibility. The employed attorney has represented the defendant since and continues to represent him on appeal. He filed on September 28, 1979, a demurrer to the indictment, a motion for a continuance, a motion to produce, a motion to suppress evidence, and the motion for a preliminary hearing previously considered, which, except the motion to suppress evidence, were set for hearing on October 5. No evidence was taken on the hearing, and there is no transcript of the proceedings as to what occurred on the hearing, but the record proper shows that the court granted a large portion of the relief sought in defendant’s motion to produce, but that it overruled some portions of the motion and overruled defendant’s motion for a continuance, as well as his motion for a preliminary hearing. The record proper does not show any further motion for a continuance, but the transcript shows that when the case was called for trial, the State announced ready and defendant’s attorney stated:

“Judge, we won’t be ready unless Mr. Velez is here and Mr. Daily.”

Thereupon a colloquy occurred among the court and counsel for the respective parties that showed that defendant proposed to use the witnesses to testify as to what occurred between Brashers and law enforcement personnel, including particularly the encounter between him and the officer he shot and who succeeded in killing Brashers on Highway 20 near Madison in Madison County. During the course of the colloquy, the following was stated:

“THE COURT: Well, in other words, I don’t want to start a case and then a witness of questionable admissibility causing a mistrial. That’s my position. It’s very questionable whether that would be admissible. What you have stated. Now, I don’t know and will not rule on it now but I would let you write a showing, if you wish to, subject to legal objection, and if it’s acceptable we would let you use it when the time comes for it.
“MR. NELSON: If it pleases the Court, we take exception to the Court’s statement that it would not be admissible and—
“THE COURT: I didn’t say it wouldn’t be. I said it would be questionable and I will rule on it when the time comes on the admissibility of it.”

It developed on the colloquy that Mr. Velez was the officer that was shot by Brashers and who succeeded in killing Brashers. Thereupon, Lt. Patterson was asked to make a statement as to what he understood from witnesses constituted the details of what occurred, which colloquy was concluded by the following:

“THE COURT: Now, let’s go further with this. Is it my understanding that this statement will be used by the defendant as a showing if they desire to use it subject to legal objection?
“MR. MOEBES: Yes, sir.
“MR. NELSON: Yes, sir.
“THE COURT: All right. Mr. Bailiff, go get the jury and bring them in.”

Although defendant was afforded a more speedy trial than usual, we must conclude that between the date defendant’s motion for a continuance was overruled and the date set for trial, witnesses had become known to defendant’s attorney, who would be available to testify, or a showing of any legally admissible evidence would be made for them and submitted to the jury, and that at that time defendant had no good ground for a continuance. The transcript is clear to the effect that the trial court did not act arbitrarily with reference to its proceeding with the trial, but that with patience it made arrangements for the defendant to present during the trial all admissible evidence that he could present at any future date to which defendant may have desired for the case to be continued. The action of the trial court as to the continuance was well within the court’s discretion.

A final insistence on a reversal and a remandment of the case for a new trial is directed to the sentencing process by the trial court, wherein it considered information contained in a presentence report and thereafter sentenced defendant to imprisonment for life, which of course, was the maximum sentence for the alleged crime. We can understand appellant’s feeling that the sentence was too severe, without necessarily agreeing with him that it was. We do not understand the basis for any contention that he is entitled to a new trial. Whatever the merit of any contention as to the severity of the sentence, it would not suffice to warrant a reversal of the judgment of conviction and a new trial.

There was an unusually lengthy sentencing hearing, at which defendant was allowed to testify at his request, at which the court made it known that it was considering the presentence report of the probation officer. We can conclude from the transcript thereof that it appears that probably, or perhaps, the trial court took into consideration some information adverse to defendant as to other conduct by him of a criminal nature that was in conflict with the testimony of defendant at the sentencing hearing, but the transcript does not conclusively show that the trial court was influenced by such information to impose the sentence it did. Furthermore, we fail to find in the transcript of the proceedings at the sentencing hearing any denial by the court of any ruling invoked by defendant. The closest to such an invocation is found in the following portion of argument of counsel for defendant just before the court pronounced the sentence:

“You don’t know where it [the information contained in the presentence report] came from or who said it or anything else. We object to this type hearsay information influencing the Court and the Court’s decision. I hope it won’t. This young man is 20-22 years old, as I recall, and has never been in any criminal activity in his life. . . . ”

In support of appellant’s final insistence, he cites Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948). In Townsend v. Burke, appellant was convicted and sentenced on a plea of guilty. He did not have counsel. In imposing sentence, the court, either through misinformation or misreading of the record, acted on assumptions concerning his criminal record which were materially untrue. The Supreme Court held that:

“Counsel might not have changed the sentence, but he could have taken steps to see that the conviction and sentence were not predicated on misinformation or misreading of court records, a requirement of fair play which absence of counsel withheld from this prisoner.”

In United States v. Tucker, supra, there had been a denial of a petition for relief from a conviction of armed bank robbery and a maximum sentence therefore, in which it had been learned years after such conviction and sentence that two of three previous felony convictions, to which the trial court had given explicit attention in imposing the maximum term, were constitutionally invalid because the accused was denied his right to counsel. The Supreme Court affirmed the action of the Court of Appeals in remanding the case to the District Court for reconsideration of the sentence. In Gardner v. Florida, supra, a death sentence was vacated and the case remanded to the Florida Supreme Court “with directions to order further proceedings at the trial court level not inconsistent with” the opinion. In the plurality opinion of the Supreme Court, it is stated:

“We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.”

None of the cases cited supports appellant’s present contention. Whether they offer hope to appellant of postconviction relief, other than by way of this appeal, is not for us to decide. We are confident that the distinguished trial judge would not hesitate to correct a mistake, if any, that he may have been caused to make by reason of any information he received that he determines is factually incorrect.

We find no error in the record prejudicial to appellant. 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.

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

BOWEN, J., dissents in part and concurs in part.

BOWEN, Judge,

dissenting in part and concurring in part.

I would reverse this case because the defendant did not receive a preliminary hearing after a proper request. I adhere to my dissent in Duncan v. State, 369 So.2d 885 (Ala.Cr.App.1979). I concur with the remainder of the majority opinion.


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte David Edwin LEDBETTER. (Re: David Edwin Ledbetter v. (State of Alabama).
    80-283.
    Supreme Court of Alabama.
    June 12, 1981.

      Dan F. Nelson of Brewer, Lentz, Nelson & Whitmire, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for respondent.
   BEATTY, Justice.

This Court granted certiorari to determine whether the decision of the Court of Criminal Appeals conflicts with prior decisions of our courts dealing with the effect of a venireman’s failure to make disclosure.

As found by the Court of Criminal Appeals, the juror in question was a former policeman (a deputy sheriff). During his questioning of the panel of which this juror was a member, the defense counsel asked these questions:

Have any of you ever yourselves been the victim of a crime of violence of any sort, such as being shot at, shot, stabbed, robbed, burglarized?
Any of you have any close members of your family; those are the same folks that I just mentioned to you, that has ever been victims of a crime just like we have talked about? Close friends or family?
Anyone else that has had a good friend or family or yourselves that has been a victim of any sort of criminal activity?

The particular juror, for whom this was not the first occasion for jury service in a criminal trial, did not respond to these questions. His failure to answer was raised in the petitioner’s motion for a new trial. The juror’s examination at the hearing on that motion revealed that during the evening of May 3, 1979, approximately five months prior to the trial, he and his wife were asleep inside their rented house when the underpinning of the house was struck by gunfire. His two vehicles, parked in a driveway adjacent to his house, were also struck by gunfire. He reported the incident to the local police who investigated and filed a report. Three spent shotgun shells were located in the street near his house.

The Court of Criminal Appeals affirmed the denial of the motion for a new trial, apparently for two reasons, viz.: (1) the evidence at the hearing did not reveal that the juror had in fact been the victim of a crime of violence of the type inquired into; and (2) nothing produced at the hearing indicated any bias against the petitioner or that knowledge of the incident on the part of either the petitioner or his lawyer would have resulted in this juror’s being struck from the venire.

Neither party argues with the principle that parties have the right, within the trial court’s sound discretion, to examine jurors on any matter that might tend to affect their verdict, cf. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969) (citing this principle as codified by Ala. Code of 1940, Tit. 30, § 52), i. e., as tending to show bias or interest. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941).

As the record discloses, when examining the jurors defense counsel asked two distinct inquiries. On the one hand they were asked whether or not they themselves had been victims of a crime of violence “such as being shot at, shot, . . . robbed ...” etc. On the other hand they were asked whether any of them or their family had been a victim of any sort of criminal activity. Of course, it is possible, as the Court of Criminal Appeals appears to have concluded, that the latter inquiry was made in direct context with the first, involving crimes of a nature akin to robbery. The language of the two inquiries does not make that conclusion inescapable, however, and it is equally possible that counsel intended to elicit the more general information sought by the question. Surely such recent information would have been recalled by a former deputy sheriff who had reported the incident to the local police and who worked with them to identify the person who did the shooting. At the time of the shooting incident it was a misdemeanor to willfully or wantonly injure, or attempt to injure, any property of another, Ala. Code of 1940, Tit. 14, § 115(1); assaults and attempts were also criminal offenses, supra, §§ 33, 38, 42. See also Medley v. State, 156 Ala. 78, 47 So. 218 (1908). Though neither the juror nor his wife was physically injured by any of the shooting still the juror reasonably could have been a victim of a “sort of criminal activity” when, while asleep in their (rented) home it, and the juror’s parked vehicles, were struck by gunfire. His complaint to the police indicates that he thought as much.

Was the petitioner prejudiced by the juror’s failure to respond? On that issue the test is whether the petitioner might have been, not whether he actually was prejudiced. Beauregard v. State, Ala.Cr.App., 372 So.2d 37 (1979), and cases cited therein.

In Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1904), the venire were qualified as to service as law enforcement officers. Two answered affirmatively and were stricken. One failed to make this disclosure and was ultimately selected. That Court held it to have been error to refuse a new trial whether or not the concealment was deliberate or unintentional. The Court added:

Another principle equally sacrosanct is that every juror must stand indifferent to the verdict. “Impartiality, freedom from bias or prejudice, capacity without fear, favor, or affection, a true deliverance to make between the accused and the State, the law demands as the qualification of a juror * * *. It is not only such (family) relationship, but temporary relations, formed in the course of business, or in the intercourse of life, which may disqualify, whenever they may import a just belief of a want of impartiality — that a juror can not stand indifferent, either from interest, or from the favor springing out of the relation.” Brazleton v. State, 66 Ala. 96.
If these legal stipulations, to an accused, are to be more than the mumbling of a meaningless shibboleth, they should here have play to effect a reversal of the cause, to the end that this defendant receive the benefit of the privilege sought to be guaranteed.
There is sustaining authority elsewhere.
“Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge. * * * And accordingly, in most States the fact that a juror answered falsely as to his qualifications is a recognized ground for a new trial” (Hayne on New Trial & Appeal, p. 143, Section 45) — we would say, of course, where there was probable prejudice to the defendant by such juror’s conduct. See also People v. Galloway, 202 Cal. 81, 259 P. 332; Williams v. Bridges, 140 Cal.App. 537, 35 P.2d 407; Hyman v. Eames, C.C. [Colo.], 41 F. 676; Ippolito v. United States, 6 Cir. [Ohio], 108 F.2d 668.
■ It would, it seems to us, be the rankest casuistry to contend that there was no probable injury to defendant by the concealment of the juror, aforesaid. It is but natural that such a juror, as a general proposition, who had been engaged in the same business, had arrested persons guilty of similar misconduct, and had probably been subjected to like attempted assaults, as the victim here, would stand less indifferent than a layman, free from the tug of such former professional influences.

We are persuaded by the reasoning of that Court that this juror’s failure to disclose the incident resulted in the probable injury to the petitioner. It is true, of course, that the shooting incident did not involve robbery, the offense petitioner was accused of committing. The nature of the shooting incident, however, with its potential for personal injury as well as property damage springing from the use of actual force, directed against him, nevertheless was activity which, as a general proposition, would have naturally caused a former deputy sheriff-juror to stand less indifferent to someone charged with a forceful crime than a layman, “free from the tug of . . . former professional influences.”

The State argues that because petitioner’s counsel had represented this juror on one occasion before this trial gave him no cause to complain now, apparently under the presumption that counsel himself was aware of the juror’s background. The record, however, establishes that the previous representation in question involved a civil matter which was settled without litigation, and that this juror had never informed petitioner’s counsel of the shooting incident. In fact, the record is bare of any fact suggesting any knowledge of it on the part of counsel for the petitioner. Accordingly, he was not foreclosed from raising the point on his post-trial motion.

Under these circumstances and for the foregoing reasons, therefore, we have concluded that the Court of Criminal Appeals must be reversed, and that this cause must be remanded to that Court with directions to order a new trial. It is so ordered.

REVERSED. AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

This is a close case. I dissent only because the trial judge, who was present during the voir dire examination, and was, therefore, in a better position to determine whether the defendant was prejudiced, determined that no prejudice was shown.

The Court of Criminal Appeals, after reading all the evidence presented in connection with the motion for a new trial, also concluded that no prejudice was shown, I would affirm.

FAULKNER, J., concurs.


author: PER CURIAM.

text:
    David Edwin LEDBETTER v. STATE.
    8 Div. 323.
    Alabama Court of Criminal Appeals.
    Aug. 4, 1981.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF THE ALABAMA SUPREME COURT, 404 So.2d 731, 1981. NO OPINION.

All the Judges concur.


author: ENGLAND, Justice, OVERTON, Justice. SUNDBERG, Chief Justice,

text:
    DEPARTMENT OF INSURANCE, STATE OF FLORIDA, and Bill Gunter, Insurance Commissioner, Appellants, v. TEACHERS INSURANCE COMPANY, et al., Appellees.
    No. 60573.
    Supreme Court of Florida.
    Order May 12, 1981.
    July 23, 1981.
    Rehearing Denied Nov. 6, 1981.

      Daniel Y. Sumner and Edward L. Kutter, Dept, of Ins., Tallahassee, for appellants.
    Leon H. Handley and Martin B. Unger of Gurner, Gurney & Handley, Orlando, for Teachers Ins. Co., Horace Mann Ins. Co., Cincinnati Ins. Co., and Queen City Indem. Co.; Earl B. Hadlow, John K. Aurell and Eleanor M. Hunter of Mahoney, Hadlow & Adams, Tallahassee, for Maryland Cas. Ins. Co., et al. and United States Fidelity and Guaranty Company, et al.; and Raymond Ehrlich and J. Stephen O’Hara, Jr. of Mathews, Osborne, Ehrlich, McNatt, Gobelman and Cobb, Jacksonville, for Travelers In-dem. Co., et al., for appellees.
   ORDER ACCEPTING JURISDICTION

The District Court of Appeal, First District, has certified, pursuant to article V, Section 3(bX5) of the Constitution of Florida, that the order of the trial court passes upon a question of great public importance requiring immediate resolution by this Court. We accept jurisdiction.

ADKINS, BOYD, OVERTON and MCDONALD, JJ., concur.

ENGLAND, J., dissents with an opinion with which SUNDBERG, C. J., and ALDERMAN, J., concur.

ENGLAND, Justice,

dissenting.

I would decline to accept jurisdiction of these cases, which are among the first to reach us under newly-approved article V, section 3(b)(5) of the Florida Constitution (1980). This case does not possess any indicia of immediacy, as did the only case so far accepted and decided under this provision. See McPherson v. Flynn, 397 So.2d 665 (Fla.1981). That case, it will be recalled, brought to us, just days before the 1981 Legislature commenced, a challenge to the seating of one of its members.

The constitution provides in section 3(b)(5) that the Supreme Court:

May review any order or judgment of a trial court certified by the district court of appeal in which an appeal is pending to be of great public importance, or to have a great effect on the proper administration of justice throughout the state, and certified to require immediate resolution by the supreme court.

I do not doubt that these cases are of great public importance, but I suggest they lack the type of immediacy which this provision demands.

On March 19, 1981, a trial judge in the Second Judicial Circuit declared section 627.066, Florida Statutes (1980) to be “unconstitutional in its retroactive application to excessive profits realized during the years 1977, 1978 and 1979.” The Insurance Commissioner of Florida, charged with determining the companies’ excess profits and directing rebates, appealed the trial court’s order to the First District Court of Appeal.

Shortly after the appeal was lodged, both the Commissioner and several (but not all) of the insurance companies filed with the district court suggestions that the appeal be certified to the Supreme Court before decision. The suggestions for certification declared counsel’s belief that the issue involved — the retroactive validity of the 1980 excess profits rebate law — was of great public importance and required immediate resolution by the Supreme Court. Various bases for the suggestions of immediacy and importance were expressed. The Commissioner’s contentions were:

1.that notices of excess profits indicate that over thirty million dollars in excess profits should be refunded to over one million policyholders in the State of Florida, and should these funds ultimately be ordered refunded as the result of reversal of the trial court’s order, any delay in final resolution of the legal issues raised would delay enjoyment of any returned funds, and could result in total deprivation to some policyholders who might decease or become unbeatable during the course of the appellate process; and

2.that prompt final determination is of immediate importance, as application of the excess profits law is an ongoing process in which cumulative calculations from year to year are necessary.

The insurance companies principally suggested:

1. that they would be required to maintain reserves or contingent liabilities so long as the lawsuits were unresolved, thereby causing adverse effects on company earnings estimates;
2. that policyholders would be delayed in receiving excess profit rebates if the statute were ultimately found to be valid;
3. that other auto insurers were affected by the uncertain status of the statute;
4. that future filings required by the law are affected by the retroactive validity of the statute; and
5. that the appeal will affect all people in Florida who pay auto insurance premiums.

One insurance company objected to the suggestions for certification, stating a belief that there is no basis for immediate or emergency consideration by this Court.

At the outset, it is important to note that a district court decision in these cases will not necessarily require our attention or resolution. The case could be truly final after district court action, and the goals of the parties can be met without our intercession. Thus, if the statute were declared valid, review here would be discretionary, and considering that the case involves an issue of arguably limited, precedential significance, it well may not be accepted for review. Moreover, it seems probable that a decision by a three-judge panel of the district court can be reached at least as quickly as by the seven members of this Court. (I assume the parties would request, and I’m sure obtain, expeditious consideration of the issue by that tribunal.) Still, even conceding the possibility of review here and discounting the ease with which we might then review the district court’s expository decision, I would still argue against our acceptance of these cases now.

We recently explained the historical development of the constitutional amendment, adopted on March 11, 1980, which gave birth to article V, section 3(b)(5) of the constitution. Jenkins v. State, 385 So.2d 1356 (Fla.1980). That explanation, which will not be repeated here, provides a backdrop to an understanding of the evolution of this particular provision.

While I believe the Court’s acceptance of this case under the new constitutional bypass provision is improvident, my disagreement does not imply in any way that the district court acted improperly in accepting the various requests for bypass certification. The district courts have had little guidance from this Court, and few of the state’s district court judges had intimate acquaintance with the development of this Court’s new jurisdictional framework.

All members of this Court did, though. A majority of this Court assumed responsibility for the formulation and adoption of the 1980 jurisdictional amendment. So too, it seems to me, this Court must assume responsibility to establish the standards for bypass certification. We cannot now ask 41 district court judges to guess what we intended, or now intend, to constitute the limited class of exceptions to their primary responsibility to decide direct appeals of cases dealing with statutory validity and constitutional construction.

The assignment of bypass certification to the Court’s discretionary jurisdiction in section 3(b)(5) of article V, as contrasted with those cases assigned to the Court for mandatory review in sections 3(b)(1) and 3(b)(2) of article V, leaves no doubt as to the role we must play. Internal control by this Court over its affairs was clearly intended. This is particularly significant when it is recalled that bypass certification demands that we also accelerate the cases on our Court’s docket. I start, therefore, from the premise that we must not accept these cases merely because they have been certified by a district court. This provision was specifically designed to guarantee our exercise of discretion, and consistency in its application requires our, not the district courts’, deci-sional control.

The majority’s acceptance of these cases for review has started the Court down a path with respect to the immediacy prong of our jurisdiction under section 3(b)(5), which is vastly different in degree from the standard applied in the Flynn case. The trial court’s order in these cases, plainly and simply, does no more than declare invalid the retroactive application of a state statute. Obviously, that alone cannot meet an “immediacy” standard, for the same constitutional amendment which brought us bypass certification took away the direct appeal of trial court orders just like these. Further, immediacy must relate to something other than the dollar significance of the legal question or the number of persons it affects, although those matters may affect the “importance” of the case.

In my view, the framers of section 3(b)(5) designed this procedure only to deal with disruptions to the system by which justice is administered in the state or to resolve important questions affecting governmental operations. The two examples mentioned frequently during the evolution of the 1980 constitutional amendment, and the Flynn case, bear this out. I see none of these problems in the reasons offered for bypass certification here.

In the absence of an articulation by the majority of a reason to accept jurisdiction of these appeals, I can only guess at their view of immediacy. Two possibilities suggest themselves.

First, my silent colleagues may intend to accept for bypass certification all cases involving statutory validity which the district courts choose to certify, in deference to the judgment and discretion of the district courts’ judges. That would be unfortunate, not only for the reasons I have already expressed, but also because that deference in effect leaves no way to decline certified cases involving a construction of the federal or state constitution. These matters have had constitutional importance equivalent to validity cases, both before and after the 1980 amendment. The net effect of taking all these matters will be to render futile the struggle which provided the Court with mechanisms to control its own docket.

As a second possibility, my brethren may intend to decline some future cases certified by the district courts based, I suppose, on some subjective assessment of their relative significance. If that is their plan, whether their criteria will be dollar amounts, people affected, or any other feature of the merits of the lawsuits, I fear that my colleagues’ ad hoc attempts to apply section 3(b)(5) in its intended form, or develop standards for immediacy, are doomed to failure. The history of this Court’s exercise of its discretionary jurisdiction between 1967 and 1980 illustrates with abundant clarity the effects of standardless ad hocracy. The net effect of this approach will not wholly negate the long overdue abolition of direct appeals, but it will reinstate the uncertainty, confusion and waste of resources which formerly attended our exercise of discretionary jurisdiction on the basis of shifting, subjective standards. This, too, will significantly erode the benefits of the 1980 constitutional change.

I would apply these standards to section 3(b)(5) cases:

(1)neither counsel in lawsuits nor district court judges should control this Court’s decision-making priorities — both groups, being nonhomogeneous and busy, have motives and priorities necessarily different from this Court’s;

(2) in order to give effect to the “immediacy” requirement of section 3(b)(5), cases accepted for bypass should be reserved for those rare instances when it is necessary to preserve the integrity of the operation of a governmental system; and

(3) in general, the validity or invalidity of a statute, or a construction of the federal or state constitution, presents no inherent potential for meeting the immediacy prong of section 3(b)(5).

At our urging, the people of Florida reduced our required jurisdiction, expressed their confidence in the ability of the district courts to decide constitutional and statutory issues, and effectively told us to exercise our review role by fairly precise and nonamorphous standards. Before today we made a good start toward those objectives. I see today’s decision as a retreat from those principles.

SUNDBERG, C. J., and ALDERMAN, J., concur.

OVERTON, Justice.

This cause is a direct appeal from a circuit court judgment holding section 627.066, Florida Statutes (1979), as amended by chapter 80-236, Laws of Florida, to be unconstitutional as retroactively applied. The appeal comes directly to us under the new provisions of article V, section 3(b)(5), Florida Constitution (1980), having been certified by the First District Court of Appeal as involving an issue of great public importance which requires immediate resolution by this Court. We accept jurisdiction and reverse.

An understanding of the brief history of the contested statute is necessary to perceive the exact posture of the parties in this proceeding. Section 627.066 was created by chapter 77 — 468, Laws of Florida, which was a far-reaching “act relating to insurance and tort reform.” This act was clearly intended to reduce escalating motor vehicle insurance rates, through such means as penalizing solicitation of motor vehicle tort claims, strengthening the procedural powers of the Division of Fraudulent Claims, and requiring a state attorney to give a reason if he does not prosecute an alleged fraudulent claim referred by the division. That the legislature believed the overall results of chapter 77-468 would be beneficial to insurance rates is evident in section 43 of the law, which ordered a rate cap or freeze from June 4, 1977, to January 1, 1978.

Prior to the effective date of this act, there was no statutory provision expressly dealing with excess profits of a motor vehicle insurer, although there was and continues to be a section dealing with excessive rates. Section 23 of chapter 77-468 created the excess profits law, section 627.066, the relevant portions of which provided:

627.066 Excessive profits for motor vehicle insurance prohibited.—
(1) Each insurer group shall file with the department, prior to July 1 of each year on a form prescribed by the department, the following data for Florida private passenger automobile business ....
(2) Excessive profit has been realized:
(a) If there has been an underwriting gain for the 3 most recent calendar/accident years combined which is greater than the anticipated underwriting profit plus 5 percent of earned premiums for those calendar/accident years.
(3) Each insurer group shall also file a schedule of Florida private passenger automobile loss and loss adjustment experience for each of the 3 most recent accident years. . . . The first year to be so reported shall be accident year 1976, so that the reporting of 3 accident years will not take place until accident years 1977 and 1978 have become available.
(5) For the three most recent calendar/accident years, the underwriting gain or loss will be compared to the anticipated underwriting profit.
(6) If the insurer group has realized an excessive profit, the department may order a return of the excessive amounts to policyholders.

Section 26 of chapter 80-236, Laws of Florida, amended section 627.066 in several places, but most of the changes were either of a technical nature or dealt with aspects of the law not involved in the instant dispute such as the procedure for refunding excess profits. The only change the 1980 law made relevant to this proceeding was to mandate that the department order a return of any excess profits, rather than leaving that determination for the commissioner’s discretion. We emphasize that the basic concepts of the 1977 excess profits law, including the nature and definition of such profits and the duties of insurers to file the required data, were unaffected by the 1980 law.

Section 27 of chapter 80-236, which appears to be the focus of the parties’ attention in this proceeding, provides in part:

Section 27. It appearing to the Legislature that private passenger automobile insurer groups have realized excessive profits during all or part of the years 1977,1978 and 1979, and that such profits were realized in part due to statutory changes for which rates were not adequately adjusted, it is the desire and intent of the Legislature that the provisions of sections 26 and 27 of this act shall apply retroactively to excessive profits realized during the years 1977, 1978, and 1979. In the event that such retroactive application is judicially determined to be unconstitutional, it is the intent of the Legislature that the act be given prospective application as stated hereinafter.

The department gave notice to appellees in late August of 1980 that “pursuant to Section 627.066, 1979 Florida Statutes, as amended by Chapter 80-236, Laws of Florida,” the department had preliminarily found that appellees had realized excess profits “for the statutory review period ending with calender/accident year 1979.”

Appellees, in five consolidated cases, sought declaratory judgments and injunctions against the department. Appellees asserted the unconstitutionality of “the retroactive application” of the excess profits law, as amended in 1980, and the unconstitutionality of the 1980 law per se. The trial court issued a final judgment on the pleadings, finding section 627.066, as amended by chapter 80-236, unconstitutional in its retroactive application to the years 1977, 1978, and 1979 on two grounds: impairment of vested property rights acquired prior to enactment of the 1980 law and impairment of contracts entered into or renewed prior to enactment. The department was permanently enjoined from retroactively enforcing the law.

Appellees’ two basic arguments are those relied upon by the trial court. The companies argue first that Florida’s traditional “use and file” rating law was radically changed by the 1980 amendment and that retroactive application of the 1980 law must be viewed as an unnecessary and unconstitutional impairment of the contracts existing between companies and their insureds. The companies view the impairment of contracts as unnecessary in that the state’s objective could have been achieved by the department disapproving the rates on a prospective basis under the “use and file” statute any time after they were filed. The companies view the impairment as unconstitutional because it fails the balancing test articulated by this Court in Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979).

Appellees’ second argument is upon what they assert is their vested right to the funds collected in calender/accident years 1977 through 1979. Appellees see the 1980 act as an attempt to force them to disgorge money earned some three years prior to the law’s enactment, in violation of their due process rights.

Appellees’ arguments are, to a certain extent, interrelated. It is fundamental that the laws of Florida are a part of every Florida contract. Board of Public Instruction v. Town of Bay Harbor Islands, 81 So.2d 637 (Fla.1955). If the law existing when motor vehicle insurance contracts were entered into or renewed in 1977 or thereafter provided that the insurance premiums were the vested property of the insurers, then any retroactive divestment of those funds would be an impairment of contract as well. On the other hand, if the law provided that the insurers were not vested with the right to those funds, the insurance contracts would include that part of Florida’s law and a subsequent divestment would not impair the contract.

After careful consideration of both provisions, we conclude that it is the 1977 excess profits law, and not the 1980 amendments, that provides the basis for the department’s authority to order a return of excess profits. It is clear from even a cursory reading that the 1980 amendments to section 627.066 are not relevant to the department’s authority. While the 1980 law removed the department’s discretion not to order a return when excess profits are found, the companies are unaffected by this change unless they can allege and prove, which they have not, that but for the 1980 amendment, the department would not have initiated the refund orders.

We turn then to the 1977 law, which must be the legal basis for the intended refund of excess profits. We view this law as working in the following manner. Each year the insurance companies must report certain data to the department as specified in subsection (1) of the law. That data is for the immediately preceding calender/accident year. The department is required under subsection (5) to review that data after combining it with data for the two years preceding it: “For the three most recent calender/accident years, the underwriting gain or loss will be compared to the anticipated underwriting profit.” Although the statute does not specify it, we believe it is implied that the department must do this within a reasonable period after receiving the required data, which the department apparently did in the instant case. Clearly there must be some point beyond which the department is estopped from applying the excess profits law, since it is unreasonable to assume that the legislature intended to require insurers to retain excess profits forever in fear of a refund order far after the profits were realized.

If the department determines that the data indicate that the most recent three-year period resulted in excess profits to a company, it may under the 1977 law and must under the 1980 law order a return of the excessive amounts. It is critical to note that what is actually being returned is the sum of those amounts from each of the three years in question that represent the amounts over the threshold of excess profits. The amount being returned is not from the premiums of just the most recent year, unless there were no excess profits in the earlier years. What the statute envisions is that the insurers must, from the beginning of any three-year period, take steps to guarantee that those premiums representing excess profits will be available to be refunded should the department order it. To those funds the insurers have no vested right; to those funds representing profits below the definition of excess, they do have vested rights.

Thus, the 1977 law, as of its effective date of September 1, 1977, changed the nature of motor vehicle insurance ratemak-ing. As of September 1, 1977, insurers were put on notice that the rights to some premiums from contracts entered into or renewed after that same date may not vest for at least three years. We emphasize that not all funds are affected, because the only property not fully belonging to the companies are those funds representing the excess profits as measured by the specified three-year period.

The problem with the department’s intended action, as mandated by the 1980 amendment, is that calendar/accident year 1977 is included in the three-year period in which profits are being viewed. The 1977 law did not take effect until September 1, 1977. Prior to that date the insurers had vested rights in all profits realized, even excess ones, because there was nothing in the law to indicate otherwise. The contracts entered into or renewed prior to September 1, 1977, could not have included as part of those contracts the 1977 excess profits law. Since a substantial part of calendar/accident year 1977 predates the excess profits law, that year, despite the manifest legislative intent, cannot be included in any computation of excess profits if to do so would deprive the companies of those 1977 profits, to which they had a vested right.

However, this conclusion is not fatal to the department’s attempt in 1980 to order a return of excess profits. Although the clear legislative intent in the 1977 act is that excess profits be measured on a three-year basis, the equally clear legislative intent of the 1980 amendments is that the excess profits realized in 1977, 1978, and 1979 be returned to the policyholders to the extent possible. We can reconcile these expressions of the legislature’s intent by construing the law, as applied in 1980 for the period 1977 through 1979, to require the department to include calendar/accident year 1977 in its calculations if and only if the inclusion of such would work to the benefit of that specific company. In other words, an insurer is entitled to the benefit of including 1977 in calculating excess profits if to do so would work to its benefit. The department is entitled to order a return of excess profits realized in 1978 and 1979, except to the extent offset by less than excessive profits in 1977.

Clearly the legislature did not intend there be insurance company excess profits resulting from the tort and insurance law reform of 1976 and 1977. The intent was rather to have both policyholders and insurance companies benefit from the reform. We emphatically reject the assertion that windfall profits are protected by the impairment of contract clause. The judgment below is reversed and the permanent injunction dissolved. The department may proceed in accordance with the views expressed in this opinion.

It is so ordered.

ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, C. J., dissents with an opinion in which ENGLAND and McDONALD, JJ., concur.

SUNDBERG, Chief Justice,

dissenting.

I dissent. See State Department of Transportation v. Edward M. Chadbourne, Inc., 382 So.2d 293 (Fla.1980); Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978).

ENGLAND and McDONALD, JJ., concur.

      . England, Hunter and Williams. Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147, 183-84 (1980).

      . Id. at 181, 183 n.210.

      . A more complete history and explanation of the 1980 amendment appears in England, Hunter and Williams, supra note 1.

      . Id. at 164-66.

      . Id. at 193-96.

      . Id. at 150-53.

      . Section 21 of chapter 77 — 468 removed motor vehicle insurance from the scope of the general excessive rates provision contained in subsection (2) of section 627.062, Florida Statutes, and created new provisions dealing with excessive motor vehicle insurance rates by a new section 627.0651, Florida Statutes. The relationship, if any, between this latter section and the excess profits law is not at issue in this proceeding.


text:
    THE FLORIDA BAR. In re AMENDMENT OF FLORIDA EVIDENCE CODE.
    No. 60950.
    Supreme Court of Florida.
    Sept. 17, 1981.
    John F. Harkness, Jr., Executive Director, Tallahassee, Samuel S. Smith, President, Miami Beach, James C. Rinaman, Jr., President-elect, Jacksonville, Rayford H. Taylor, Legislative Staff Counsel, Tallahassee, and Bill Wagner of Wagner, Cunningham, Vaughan & McLaughlin, Tampa, for The Florida Bar, petitioner.
   PER CURIAM.

We previously adopted, as court rules, the Florida Evidence Code as enacted by the legislature insofar as it deals with procedural matters. In re Florida Evidence Code, 372 So.2d 1369 (Fla.1979), as clarified by In re Florida Evidence Code, 376 So.2d 1161 (Fla.1979). The Florida Bar has petitioned this Court to amend these Rules of Evidence to conform to recent statutory changes in the Code.

Chapter 81-93, Laws of Florida, which will become effective October 1, 1981, substantially changes two sections of the Code. Section 90.103(2) has been amended to provide that the Code provisions shall apply to civil actions and all other proceedings pending on or brought after October 1, 1981. Additionally, the definition of hearsay has been changed to reflect pre-Code Florida law and to conform to Rule 801(c), Federal Rules of Evidence.

To the extent that these amendments concern court procedure, we adopt them as part of the Rules of Evidence and hereby modify those rules to incorporate the changes. The amended rules shall become effective October 1, 1981.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN and Mc-DONALD, JJ., concur.

      . §§ 90.101-.958, Fla.Stat. (1979).

      . The text of chapter 81-93, section 1, is as follows:
      90.103 Scope; applicability.—
      (2) This act shall apply to criminal proceedings related to crimes committed after the effective date of this code, and to civil actions and all other proceedings pending on or brought after October 1, 1981.

      .Chapter 81-93, section 2, provides:
      90.801 Hearsay; definitions; exceptions.— (1) The following definitions apply under this chapter:
      (c) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.


author: ADKINS, Acting Chief Justice.

text:
    Harry BILYOU, Petitioner, v. STATE of Florida, Respondent.
    No. 59160.
    Supreme Court of Florida.
    Sept. 24, 1981.
    Harry Bilyou, in pro. per.
    Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for respondent.
   ADKINS, Acting Chief Justice.

By petition for certiorari, we have for review a decision of the Fifth District Court of Appeal, Bilyou v. State, 381 So.2d 756 (Fla. 5th DCA 1980), which allegedly conflicts with prior decisions of another district court of appeal, Payne v. State, 372 So.2d 152 (Fla.3d DCA 1979); Overman v. State, 368 So.2d 434 (Fla.3d DCA 1979); Segarra v. State, 360 So.2d 79 (Fla.3d DCA 1978), on the same point of law. We have jurisdiction. Art. Y, § 3(b)(3), Fla.Const. (1980).

Petitioner, Harry David Bilyou, was charged with a lewd assault upon a six-year-old girl. Pursuant to a plea bargain, the trial judge accepted a plea of nolo con-tendere and agreed that petitioner would receive “a cap of ten years probation as a possible sentence.” Petitioner was, in fact, placed on eight years probation; however, following a hearing at which he was found to have violated the terms of his probation agreement, his probation was revoked, he was adjudicated guilty, and sentenced to fifteen years in prison. Pursuant to section 947.16(3), Florida Statutes (Supp. 1978), the trial judge retained jurisdiction over petitioner for the first one-third of the sentence imposed.

Petitioner appealed the fifteen-year sentence and the trial judge’s retention of jurisdiction, contending that the former was illegal because it exceeded the ten-year cap agreed to as part of the plea bargain and that the latter was improper. The District Court of Appeal, Fifth District, affirmed the trial court, holding that the sentence imposed was proper and that the point raised regarding the trial judge’s retention of jurisdiction was without merit.

In regard to the propriety of the sentence imposed, the district court reasoned as follows:

[S]o long as the original order of probation was within the terms of the plea agreement, the court has fulfilled the plea bargain. Upon revocation of probation the trial court is free to impose any punishment within the limits prescribed for the crime.

Bilyou v. State at 757. The second and fourth district courts have held likewise. See Mulder v. State, 356 So.2d 870 (Fla.4th DCA 1978); Johnson v. State, 378 So.2d 335 (Fla.2d DCA 1980).

As the fifth district court noted in its opinion, the Third District Court of Appeal has held contrarily. In Segarra v. State, regarding the same question, the third district held as follows:

[T]he trial court erred in imposing a sentence of fifteen years on violation of probation, where there had been an agreed maximum sentence of five years as a part of plea negotiations accepted and approved by and between defendant, prosecutor, and judge.

Segarra v. State, at 80. Petitioner contends that the third district reached the correct conclusion, i. e., that the punishment received by a probation violator cannot be in excess of the maximum punishment provided for in the agreement under which he first entered a plea. On the basis of our recent decision in State v. Segarra, 388 So.2d 1017 (Fla.1980), we disagree.

In State v. Segarra, we reviewed and quashed the third district court’s decision in Segarra v. State and held as follows: State v. Segarra at 1018. Adopting the reasoning of the second district court, we observed that one who violates his probation should not thereafter be heard to argue that the state is still bound by the terms of the agreement which resulted in the initial imposition of probation. See State v. Segarra at 1018. We also approved the fourth district court’s observation that so long as the probation imposed complies with the plea agreement, the court has fulfilled the plea bargain and the violation of probation opens a new chapter in which the court ought to be able to mete out any punishment within the limits prescribed for the crime. See State v. Segarra at 1018. Both the underlying rationale and the ruling of State v. Segarra are applicable in the case sub judice.

[Wjhen a defendant pleads guilty pursuant to a plea bargain and the court places him on probation, if he violates his probation the court can sentence him to a term in excess of the provisions of the original bargain.

We recognize that a distinction can be made between the facts in Segarra and those here, in that the former involved plea bargains for caps on prison sentences while the plea bargain here was for a cap on the period of probation. We do not think, however, that the difference mandates a different result. The rationale of State v. Segarra still applies. Petitioner violated the agreement reached and should not now be allowed to bind the state to that bargain; a bargain with which the state complied when it imposed an eight-year-probation period.

In fact, that the agreement here was for a cap on probation rather than imprisonment makes it even more essential that the state not be limited by the terms thereof now that the probation has been violated. The fourth district court aptly explained why in Mulder v. State:

Accepting [petitioner’s] contentions would lead to absurd results. If [as in this case] the original plea negotiations including [sic] an understanding that a defendant could be placed on probation, and the court agreed, the court would then be unable to impose any prison sentence in the event probation was subsequently revoked. It cannot be said that the legislature intended to leave society without any recourse against those defendants who receive the benefit of the court’s mercy by being placed on probation and, subsequently, violate the terms thereof.

Mulder v. State at 871.

We think it clear that our decision in State v. Segarra should and does control here. Its rationale is applicable herein. And the factor which distinguishes this case, that it involves an agreement limiting probation rather than imprisonment, makes it even more important that the state not be limited by the plea agreement. Therefore, we hold that one who violates the probation on which he was placed pursuant to a plea bargain agreement may have said probation revoked and be sentenced to a term in prison, notwithstanding the terms of the plea agreement.

We now consider petitioner’s challenge of the trial judge’s retention of jurisdiction over him for the first one-third of the sentence imposed. Petitioner contends that such is improper and that the section pursuant to which it was done, section 947.16(3), Florida Statutes (Supp.1978), is unconstitutional. We need not address the constitutional question because petitioner is correct regarding the propriety of the retention.

The provisions of section 947.16(3), allowing a trial judge to retain jurisdiction over a convicted offender for up to one-third of the sentence imposed, were enacted in 1978. See ch. 78-318, Laws of Florida (1978). The offense for which petitioner was convicted occurred in 1977, almost eleven months prior to the effective date of chapter 78—318. We held, in State v. Williams, 397 So.2d 663 (Fla.1981), that retention of jurisdiction by a trial judge pursuant to section 947.16 constitutes an ex post facto application of the law when the crime in question was committed prior to said section’s effective date. In light of our decision in State v. Williams, the trial judge’s retention here is improper.

We, therefore, affirm that part of the district court’s decision upholding petitioner’s prison sentence and reverse that part holding that there was no merit to petitioner’s argument regarding retention of jurisdiction by the trial judge, and remand to the district court for entry of an order consistent herewith.

It is so ordered.

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