text:
    Robert Lee JAMES v. STATE.
    4 Div. 75.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      C. Kerry Curtis of Curtis & Curtis, Phe-nix City, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty of burglary in the third degree. After appropriate notice by the State that defendant would be proceeded against under the Habitual Felony Offenders Act, he was sentenced to imprisonment for fifteen years, it having been shown at the sentencing hearing that prior to commission of the felony charged in the instant case, he had been convicted of two felonies. The applicable minimum and maximum limits prescribed by statute are “imprisonment for life or for any term of not more than 99 years but not less than 15 years.” Alabama Criminal Code, § 13A-5-9(a)(3) and § 13A-5-9(b)(l) when considered together with § 13A-7-7(b).

The trial judge was Honorable Wayne Johnson, and the sentencing judge was Honorable Paul Jack Miller, both regular judges of the 26th Circuit where the alleged crime was committed and the trial and the sentencing procedure occurred.

Two of the three issues presented by appellant are thus stated in his brief:

“I DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S MOTION FOR MISTRIAL IN VIEW OF FACT THAT THE TRIAL JUDGE HAD PREVIOUSLY REPRESENTED APPELLANT ON APPEAL OF A CRIMINAL CONVICTION?
“II DID THE TRIAL COURT ERR IN OVERRULING APPELLANT’S MOTION FOR MISTRIAL IN VIEW OF TRIAL JUDGE’S STATEMENT THAT IN THE EVENT OF A CONVICTION HE WOULD LEAVE THE IMPOSITION OF SENTENCE TO ANOTHER CIRCUIT JUDGE?”

We will endeavor to respond definitely to each of the two issues, but we believe it appropriate, in the interest of brevity, to consider them together, chiefly.

The first time any reference was made in the trial court to the matter now under consideration was after a large part of .the morning of the first day of trial had been devoted to the case; after a jury had been selected, counsel for the respective parties had made opening statements to the jury, two of the witnesses for the State had concluded their testimony and the court had reconvened after a recess for lunch. Immediately upon reconvening at 1:15 P.M., the following occurred:

“THE COURT: It has come to the Court’s attention that heretofore in Russell County Case No. CC-77-69 I was appointed by the Court to represent the defendant on his appeal from a conviction of burglary in the second degree in that case. The conviction thereafter was affirmed by the Court of Criminal Appeals. This matter has come to my attention here in the middle of trial through a certified copy of the minutes of the court records brought by the assistant district attorney.
“I do not have any independent recollection of meeting with Mr. James on that appeal. I recall the incidents — I recall the grounds upon which the matter of the case was appealed. The style ‘State versus Robert Lee James’ does not bring anything to mind.
“The Canons of Judicial Ethics have been reviewed by me and I have talked with Judge Miller regarding this particular matter, as- the presiding judge of this circuit. He is of the opinion there will not be a conflict for me to proceed in this case. If there is a conviction resulting from this case, then in the discretionary powers as to the particular sentence that would be imposed, he will conduct any sentence hearings or restitution hearings or enter any orders regarding sentence of the defendant.
“MR. CURTIS: [Defendant’s attorney]: Judge, based on the statement that you have just made and had read into the record, on behalf of the defendant I will make a motion for a mistrial at this time. I feel that the trial judge should also be the sentencing judge, and in view of your knowledge of past convictions and the circumstances of those convictions of the defendant, I feel it would be improper for you to be the sentencing judge. In other words, I am saying I think that another judge should handle this matter altogether.”

Further dialogue ensued between the trial judge and defendant’s attorney, and at the conclusion thereof, the following occurred:

“MR. DAVIS [An assistant district attorney]: For the record, the state sees no conflict; but if there were such a conflict, the state would waive any objection it might have.
“THE COURT: We will proceed with the trial here. Are you ready to proceed?
“MR. DAVIS: The state is ready.
“THE COURT: Mr. Curtis?
“MR. CURTIS: We are ready.
“THE COURT: We will go ahead.
“I would view the situation in this case being the same as if at one point in time I had represented a person such as, let’s say, a bank, and would have to be recused from representing a person because there was a conflict with a bank such as a note being due, owing to the bank, and that situation having terminated, it would be no later grounds for recusal. I would view that as being the same way in this case.
“[The jury returned to the courtroom and to the jury box and, all other necessary officers and parties being present, the trial continued as follows, to-wit:]
“THE COURT: The State would call its next witness, please.
“MR. DAVIS: Call Officer Hassen.”

For his contention that Judge Johnson should have recused himself and thereby caused a mistrial of the ease, appellant relies chiefly, if not exclusively, upon Rushing v. City of Georgiana, Ala., 361 So.2d 11, 12 (1978), in which the Alabama Supreme Court, per Justice Beatty, held that the trial judge should have recused himself by reason of his having theretofore, before he became a judge and while he was a circuit solicitor of the same circuit, prosecuted a criminal case against Rushing, which case grew out of the same facts and controversy that gave rise to the case of Rushing, as plaintiff, v. City of Georgiana. As pointed out in Ray v. State, Ala.Cr.App., 398 So.2d 774, cert. denied, 398 So.2d 777 (1981), the turning point in Rushing v. City of Georgia-na was that the then pending civil case and the previous criminal case concerned the same “matter in controversy,” which should have brought about the judge’s recusal, pursuant to Alabama Canons of Judicial Ethics, Canon 3, Part C.

It was held in Ray v. State, at 398 So.2d 766-777, that the fact that the trial judge, before he was a judge and while he was district attorney of the particular circuit, had prosecuted the defendant in another case presented no valid ground for a motion that he recuse himself. For stronger reason, it is our opinion that the trial judge’s representation of defendant in a previous criminal case while the case was on appeal did not per se furnish a valid ground for a recusal.

Appellant’s contention that the same judge that tried the case should have conducted the sentence hearing and sentenced defendant, which he made in the trial court also, calls for additional consideration. We agree that generally it is better and more appropriate that a convicted defendant be sentenced by the judge who tried him. Appellant cites in support of his contention Lawley v. State, Fla.App., 377 So.2d 824 (1979), which, in expressed consonance with Rule 3.700(c), Florida Rules of Criminal Procedure, and Section 5.1(a) of the American Bar Association Standards Relating to Sentencing Alternative and Procedures, and a Commentary to the subsection, reversed the judgment of the trial court and remanded the case “for resen-tencing by the trial judge,” who was not the sentencing judge. The court said:

“No emergency or necessity was shown in this case. Mere convenience does not justify a practice that departs from the well recognized assumption that sentencing is an individualized procedure.”

The case cited is inapposite. Although in the case sub judice there may have not been any “emergency” or “necessity” in the strictest sense of those words, a somewhat kindred situation was presented by the circumstance, understandably unforeseen at the time of the planning of the docket and the commencement of the trial and unobserved until after a large part of the trial had taken place, which circumstance, according to defendant’s contention, could have been remedied only by the necessarily disruptive consequences of a mistrial. It is to their credit that both of the judges foresaw the possibility that the “impartiality”' of Judge Johnson “might reasonably be questioned” by what could conceivably occur at a sentencing hearing, which should be scrupulously avoided, according to Canon 3 C(l), Alabama Canons of Judicial Ethics, as to which some concern was thus expressed in Bay v. State, at 398 So.2d 777:

“It probably should be observed that no motion for a recusal was made in connection with the sentencing hearing, that conceivably a factual question could have arisen thereon as to which the judge’s recollection of pertinent events could have been different from that of defendant or other witnesses, but it appears that no such complication arose.”

It is to be noted that on the sentencing hearing in the instant case any “such complication” was avoided by the action of the judges in arranging for the sentencing hearing to be conducted by a judge other than the judge trying the case.

In our opinion, the denial of defendant’s motion for a mistrial was not erroneous. Such ruling as applied to the question whether the case should have been tried by the judge trying it was in every respect proper; the ruling as it relates to the recu-sal of the trial judge in the conduct of the sentencing hearing was clearly made in a carefully studied and sincere effort to avoid any appearance of partiality so that unquestionably even-handed justice would prevail. We approve the ruling of the trial court in both of the issues raised by appellant as to the motion for a mistrial.

In the only other issue raised by appellant, appellant questions the action of the “sentencing judge ... in failing to advise appellant upon the pronouncement of sentence that he would be allowed a credit on his sentence for the time he had already been incarcerated on the case presently before the court.” Appellant relies upon Rule 8(b)(2) of the Alabama Rules of Criminal Procedure, which states: “In pronouncing sentence the court shall ... state that a credit will be allowed on the sentence for time during which the defendant has already been incarcerated on the present charge .. .. ” The transcript of the proceedings fails to reveal that the statement described by said Rule 8(b)(2) was made. The transcript shows that at the time of the pronouncement of sentence the defendant was in jail and had been in jail since his arrest in the instant case. As to the issue now under consideration, appellee states in his brief:

“Appellee submits the conviction of Appellant is due to be affirmed, but Appellant’s sentence needs to be corrected to give credit for time incarcerated prior to trial.”

One of the reasons for the quoted Rule 8(b)(2) is to inform any defendant, who has been imprisoned on the charge of which he stands convicted, of the fact that he is entitled to credit on his sentence for his time spent in prison on the charge in order that he may take that fact into consideration in determining whether he should exercise his right to appeal. The transcript shows in this case that promptly after the pronouncement of sentence, defendant gave notice of an appeal. No harm has been done appellant as a result of the inadvertent omission to state to defendant the contents of Rule 8(b)(2). If he has not been otherwise authoritatively informed thereof by now, he, and all others concerned, are now so informed, and action should proceed accordingly.

We have considered all issues raised by appellant and find no error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Willie Mack KELLY v. STATE of Alabama.
    4 Div. 972.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Willie Mack Kelly was indicted for robbery in the first degree, in violation of § 13A-8-41, Code of Alabama, 1975. The jury found the appellant guilty “as charged in the indictment” and the trial court sentenced him to ten years’ imprisonment in the penitentiary.

On May 3, 1981, at approximately 3:30 or 4:00 o’clock in the afternoon, Ike Ransom and the appellant were sitting in the living room of the residence of Gerta Mathis in Dothan, Alabama. Ransom was sitting in a chair which faced away from the doorway which leads from the kitchen into the living room. The appellant was sitting across the room, facing Ransom.

At some point, the appellant got up and went out the front door of the house. Shortly thereafter, someone approached Ransom from behind. The person placed an object, which Ransom said felt like a knife, to the back of his neck, and told Ransom to keep quiet and not to look around. Ransom testified he recognized the voice as the appellant’s. The person then reached in Ransom’s right front pocket and removed his .38 special gun and reached into his left back pocket and removed his billfold, which Ransom testified contained $400.00.

When the person removed the object from Ransom’s neck, he turned around and saw the appellant walking toward the kitchen.

The next morning, May 4, 1981, Ransom reported the robbery to the District Attorney’s office in Houston County.

On May 13, 1981, at approximately 6:45 in the morning, Ransom spoke with the appellant on the telephone. The appellant asked Ransom about settling the case out of court and told Ransom: “I got your gun and I got your billfold with all your belongings in it, but I haven’t got it where I can get to it.” (R. 33).

Sergeant Robert Jenkins, who investigated the robbery, testified he checked the police department records for gun purchases which revealed that Ransom had purchased a Charter Arms .38 special revolver, serial number 601456, from the Western Auto Store. Jenkins produced Ransom’s gun at trial and it was introduced into evidence.

David Rose testified that on the night of May 3, 1981, at approximately 11:30 o’clock, the appellant walked up to Rose’s car and swung the revolver at Rose. The revolver fell out of the appellant’s hand into Rose’s car, and he drove off. Rose then turned the gun over to Eleanor Gordy, a Dothan attorney, who in turn, gave it to Jenkins.

Jenkins further testified that the gun he received from Gordy had the identical serial number as the gun that was registered to Ransom. Ransom later testified that he could identify the gun introduced into evidence as his own because of a scratch mark on the gun.

At this point, the State rested and the defense counsel made a motion to exclude which was overruled by the trial judge.

The first defense witness was Gerta Mathis. She testified that Ransom did not tell her about the robbery until the day after it occurred. She was asked by defense counsel whether or not she knew of occasions on which Ransom’s pistol had to be taken away. The State’s objection to this question was sustained.

Defense counsel also called Raymond Kincey who testified he had a conversation with Ransom on May 20, 1981. The trial court sustained the State’s objection to what Ransom told Kincey during that conversation.

Two other witnesses, Mary Helen Reynolds and Georgia Griffin testified that the appellant had removed Ransom’s gun from him on at least one other occasion when Ransom had been drinking. At this point, the defense rested and the jury returned a verdict of guilty.

On July 8, 1981, defense counsel filed a motion for a new trial on the ground of improper juror conduct.

At this hearing, the appellant, his mother and a friend of his mother’s, testified that during the trial, they heard certain jurors say the appellant was guilty and was a liar. After considering the evidence at this hearing, the trial judge denied defense counsel’s motion for a new trial.

i

Appellant contends the trial court erred in sustaining two of the State’s objections. The trial court’s sustention of either a specific or general objection must be affirmed on appeal. “.. . [I]f there was any good reason whatever why the testimony sought by the question should have been excluded.” .... Feore v. Trammel, 213 Ala. 293, 104 So. 808 (1925); Norris v. State, 229 Ala. 226, 156 So. 556 (1934); McElroy’s Alabama Evidence § 426.01(13). Thus the trial court’s ruling cannot be held to be erroneous.

II

The appellant contends the trial court erred in denying defense counsel’s motion to exclude the State’s evidence. It is clear that the trial court’s duty, when considering a motion to exclude, is to determine if there is any evidence, even circumstantial, sufficient to sustain a conviction. Snider v. State, 406 So.2d 1008 (Ala.Cr.App.1981); Parker v. State, 395 So.2d 1090 (Ala.Cr.App.1980). Such evidence must be weighed in the light most favorable to the State. We hold the evidence did raise a question of fact and was properly submitted to the jury.

III

Appellant’s contention that the trial court committed reversible error by failing to grant defense counsel’s motion for a new trial is without merit. The only evidence of juror misconduct presented at the hearing was the testimony of the appellant, his mother and a friend of his mother’s. “.. . It became the duty of the trial judge to exercise his reasonable discretion in weighing and determining such evidence and making his decision thereon.” .... Adams v. State, 32 Ala.App. 367, 26 So.2d 216 (1946).

The decision to grant or refuse a motion for a new trial rests within the sound discretion of the trial court and carries a presumption of correctness. In reviewing the evidence presented, we hold the trial judge did not abuse his discretion in denying this motion for a new trial. Suggs v. State, 403 So.2d 303 (Ala.Cr.App.1981); Allen v. State, 382 So.2d 11 (Ala.Cr.App.1979); Woodard v. State, 401 So.2d 300 (Ala.Cr.App.1981).

For these reasons, the judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Henry James WRIGHT v. STATE.
    6 Div. 654.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      Charles E. Caldwell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Jefferson County Grand Jury on January 9, 1981, for the offense of robbery in the first degree in violation of § 13A-8^41, Code of Alabama 1975. Appellant was arraigned in open court on January 16,1981, where he entered a plea of not guilty to the indictment. He was tried before a jury on May 20, 1981, and found guilty. The court sentenced appellant to a term of twenty years’ imprisonment in the Alabama State Prison System. This appeal followed.

Henry Barrett, the robbery victim, testified that, on July 30,1980, at approximately 1:40 p.m., he was making his deliveries as a Pepsi Cola route deliveryman in the Jefferson West End area in Birmingham, Alabama. He stated that, as he finished a delivery, he got into his truck when a person whom he identified as the appellant pulled a revolver and demanded the money. Mr. Barrett testified that the appellant took the money and proceeded down an alley and got into a two-tone car and fled the scene.

Mr. Barrett went inside a business and called the police. A few minutes later the police arrived at the scene and a description of the person and car was given to them by Mr. Barrett.

Officer Douglas Foster of the Birmingham Police Department testified that he and Officer K.W. Patterson responded to the robbery call at 1537 Jefferson Avenue at approximately 12:30 p.m. When the officers arrived, they had a conversation with Mr. Barrett in reference to the robbery that occurred. While on the scene, the officers received another call about a hit and run accident that happened approximately one block away.

The officers responded to the hit and run call and upon arriving received a description of the automobile and the tag number of the car that had fled the hit and run accident. Officer Foster testified that the information about the robbery and the hit and run accident was turned over to the Robbery Division of the City of Birmingham.

Sergeant John Barefield testified that he was assigned to investigate the report from the Patrol Division regarding the robbery. Sergeant Barefield traced the automobile registration to a K.B. Cash. After a conversation at the Cash residence, Sergeant Barefield was informed that the automobile belonged to Theauthur Cash. After Sergeant Barefield talked with Theauthur Cash, he conducted a photographic lineup with Mr. Barrett where five photographs were shown to him. Sergeant Barefield testified that Mr. Barrett identified Henry James Wright, the appellant, as the person who robbed him.

Theauthur Cash testified that, in the latter part of July, 1980, he and Henry James Wright were at Barbara’s (last name unknown) house and Henry James Wright borrowed his car. Cash described the car as a 1978 Ford LTD, four-door, green top and white body. He stated that Henry Wright and a person named Tyrone Watts left in the car at about 10:30 a.m., and later that day when the car was parked in Barbara’s driveway, he noticed the car had been damaged. Mr. Cash testified that Henry Wright gave him a telephone number of the person who hit the car, but when he dialed the number no one answered. Mr. Cash also testified that he received a call from Sergeant Barefield in reference to his car and he explained about the car.

Joseph Wright, the brother of appellant, testified that on July 30, 1980, he was with the appellant from 11:30 a.m. until 1:30 p.m. at their mother’s house. Joseph Wright also stated that, when he left about 1:00 p.m., Henry Wright was still there with his mother.

Henry James Wright, the appellant, testified that on July 30, 1980, he was at home with his mother because she was old and sick. Henry Wright’s testimony was that he did not borrow Theauthur Cash’s automobile; furthermore, he testified that he did not know a person named Tyrone Watts, and he had never been anywhere with him. Wright testified that he had not owned a gun and that he had never seen Mr. Barrett before except at the preliminary hearing.

Appellant bases his appeal on two arguments. His first contention is that the court erred in allowing the introduction of “mugshot” photographs of the appellant into evidence for the jury to view; and, second, that the court abused its discretion in the sentencing of the appellant.

Appellant contends the admission of the five photographs used in the extrajudicial photographic identification procedure amounts to reversible error. He contends that the photographs were admitted into evidence before the appellant’s identity had been placed in issue, and, as a result, appellant’s right to a fair trial was prejudiced.

When the photographs were first introduced at trial, defense counsel objected on the ground that they had not been properly authenticated. Mr. Barrett testified that all five photographs introduced at trial were indeed the photographs that Sergeant Barefield had exhibited to him approximately one week after the robbery. Mr. Barrett also testified that the photographs appeared to be in the same condition as they were when Sergeant Barefield showed them to him one week after the robbery. He stated that, at the extrajudicial photo lineup, he picked out a photograph of appellant as the person who robbed him and, after doing so, signed his name along with the date and time of day that the identification took place on the back of the photograph. At trial Mr. Barrett identified the signature on the back of appellant’s photograph as his own. Following this testimony, the trial judge allowed into evidence the photographs. Subsequent to the admission of the photographs into evidence, Sergeant Barefield testified that the five photographs were the same ones that he had exhibited to Mr. Barrett approximately one week after the robbery.

To allow the introduction of an out-of-court photographic array, the state only need show a reasonable probability that the photographs introduced at trial were those used by the witness for identification purposes. Snipes v. State, Ala.Cr.App., 364 So.2d 424 (1978). Due to Mr. Barrett’s positive identification of the photographs at trial as being those that were shown to him at the extrajudicial lineup, and his recognition of his own signature on the back of the appellant’s photograph, the “reasonable probability” burden was met by the state.

Appellant contends that the trial judge committed reversible error due to the admission of the five photographs used in the extrajudicial photographic lineup since the photographs were admitted to bolster the in-court identification by the victim of appellant before his identity was even placed in issue. In Howell v. State, Ala.Cr.App., 369 So.2d 297 (1978), it was held that where a specific objection to admission of evidence is made, all other grounds are waived.

The record reveals that no proper objection was made at the time the photographs were admitted into evidence. The objection made at trial was:

“MR. CALDWELL: We object, Your Honor. They (the photographs) have not been properly authenticated.”

Since appellant failed to properly object at trial to the introduction of the photographs, nothing is presented to this court for review. Hargrove v. State, Ala.Cr.App., 344 So.2d 823 (1977).

Appellant asserts that the trial court abused its discretion by sentencing appellant to a term of twenty years under the Habitual Offender Statute, § 13A-5-9 Code of Alabama 1975. The record shows that appellant was indicted under § 13A-8-41, Code of Alabama 1975, which became effective on June 1, 1979, and is classified as a Class A felony. § 13A-5-6(a)(l), Code of Alabama 1975, also in effect on the date of the robbery provides the following sentences:

“(1) For a Class A felony, for life or not more than 99 years or less than 10 years.”

Where punishment is properly imposed within the limits defined by the punishing statute, this court is without jurisdiction to review the punishment. Fagan v. State, Ala.Cr.App., 412 So.2d 1282 (1982). Therefore, no error is presented for review.

Conflicting evidence in a robbery prosecution as to whether appellant committed the robbery presented an issue for the jury to resolve and a verdict rendered thereon will not be disturbed on appeal. Lee v. State, Ala.Cr.App., 346 So.2d 31 (1977); Young v. State, Ala.Cr.App., 346 So.2d 509 (1977).

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    William SANDERS v. STATE.
    6 Div. 690.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      Mel Burns, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill North, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Appellant was indicted and convicted for robbery in the first degree, a Class A felony. Section 13A-8-41, Code of Alabama 1975. At sentencing, it was determined that appellant had been convicted of three prior felonies. The trial court, accordingly, fixed his punishment under the Habitual Felony Offender Statute to life imprisonment without parole. Section 13A-5-9(c)(3), Code of Alabama 1975.

I

Appellant first questions the sufficiency of the State’s evidence. He claims, in essence, that he was a victim of circumstances by merely being present at the scene when the robbery occurred. We disagree.

William L. Blakey, the manager of Jim’s Package Store in Birmingham, testified that at approximately 7:50 p.m. on August 18, 1980, appellant walked into the store, followed by another young man, Larry Houston. Blakey’s wife and Rickey T. Lewis, the owner of the store, were also present.

Blakey stated that as Houston walked into the store he pulled a green towel from his arm, revealing a pistol, and announced, “[T]his is a stickup.” Simultaneously, appellant “walked straight ahead toward a blue box ... and came right toward me and just stood there looking at me with a smirk on his face.” Blakey told his wife to “Sack the money.” Blakey testified that during the entire time the robbery was taking place appellant looked “straight at me. He didn’t take his eyes off of me.”

After the money was “sacked” Houston told appellant, “Let’s go.” Houston went out the door first and appellant “went right behind him.” Blakey then reached for a pistol he kept beside the cash register and “went out right behind them,” commanding Houston and appellant to “Stop.” Blakey testified that Houston then “turned around and fired. And I fired, and his legs went out from underneath. And they were both on the ground.” Blakey continued to hold Houston and appellant on the ground until the police arrived.

Ricky T. Lewis’s testimony was substantially the same as Blakey’s.

Larry Rouse, who was driving his automobile in the vicinity of Jim’s Package Store at the time of the robbery, confirmed that he saw the two black men running from the store and Blakey, the white store owner, pursuing them. “I didn’t know at that time what was going on until the store owner fired a gun.... I knew then that a robbery had taken place.”

From the foregoing facts we find that the State’s evidence was sufficient to support the jury’s verdict. Section 13-9-1, Code of Alabama 1975, provides as follows:

“The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid and abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.”

As this court stated in Watkins v. State, 357 So.2d 156, 159 (Ala.Crim.App.1977), cert. denied, 357 So.2d 161 (1978):

“Recognizing the principle that the mere presence of an individual at the time and place of a crime does not make him a party to that crime, it must also be remembered that the words ‘aid and abet’ comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974). The common enterprise or adventure may have been entered into on the spur of the moment without pre-ar-rangement or preparation. Fuller v. State, 43 Ala.App. 632, 198 So.2d 625 (1966). The appellant’s actual participation need not be proved by positive testimony; the jury is to determine whether it exists and the extent of it from the conduct of the parties and all the testimony adduced. Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).”

Community of purpose may be formed in a flash, and participation and community of purpose may be shown by circumstantial evidence or inferred from the conduct of the participants. Smith v. State, 57 Ala.App. 151, 326 So.2d 680 (1975), cert, denied, 295 Ala. 419, 326 So.2d 686 (1976). Such facts as the defendant’s presence in connection with his companionship, his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred. Smith, supra.

Where more than one person participates in a robbery it is immaterial which one takes the property. Gray v. State, 52 Ala.App. 481, 294 So.2d 448 (1974). Nor must the evidence establish that the defendant personally committed violence against the victim or put the victim in fear. Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716 (1975). And whether a defendant was forced at gunpoint into participating in the robbery by his accomplice is a jury question. Trammell v. State, 51 Ala.App. 168, 283 So.2d 620 (1973).

The State in this case, as in Watkins, supra, proved more than the mere presence of the appellant at the scene of the crime. Although appellant did not say a word, carry the gun or touch the money, his demeanor and actions during the course of the robbery demonstrated clearly that he intended to aid and abet Houston in committing the crime. Applying the principles of law which are set out above to the facts and circumstances of this case, we are convinced that the State’s evidence was sufficient to sustain the conviction, notwithstanding the defense testimony that he had nothing to do with the robbery. “Where the evidence is conflicting as to the defendant’s connection as an accomplice or co-conspirator, a jury question is presented.” Watkins, 357 So.2d, at 160.

II

Appellant contends that the prosecution made two improper comments during closing argument which were unsupported by the evidence. Again, we disagree.

First, there was testimony from store manager William Blakey that when he pursued appellant and Houston outside the store, Houston “turned around and fired” his pistol. In addition, John Hooban of the Birmingham Police Department testified that the .38 caliber revolver Houston was carrying, which was recovered at the scene, contained two bullets that had “misfired.” Therefore, we find no error in the prosecution arguing: “I submit to you it’s just by the grace of God by those bullets misfiring that Mr. Blakey is here today.”

Secondly, appellant admitted from the witness stand that he had met Houston just prior to going inside the package store. Appellant testified that he knew Houston and considered him a friend. Appellant stated that when he asked Houston “What he was fixing to do” prior to the robbery, Houston responded, “I’m fixing to take care of some business.” Appellant insisted that he didn’t know what Houston meant “exactly,” but admitted that he immediately walked into the store and that Houston came in right behind him. On the basis of appellant’s testimony alone, we find no error in the prosecution arguing: “William Sanders met the juvenile out there and they together planned the robbery.”

While in argument to the jury counsel may not argue as a fact that which is not in evidence, nevertheless, he may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based upon his own reasoning. Liner v. State, 350 So.2d 760, 763 (Ala.Crim.App.1977). “Liberal rules are allowed counsel in drawing inferences from the evidence in their argument to the jury, whether they are truly drawn or not.” Liner, supra; Smith v. State, 344 So.2d 1239 (Ala.Crim.App.), cert, denied, 344 So.2d 1243 (Ala.1977). The prosecutor as does defense counsel, has the right to present his impressions from the evidence; he may argue every matter of legitimate inference and may examine, collate, shift, and treat the evidence in his own way. Hayes v. State, 395 So.2d 127 (Ala.Crim.App.1980); cert. denied, 395 So.2d 150 (Ala.1981); McQueen v. State, 355 So.2d 407 (Ala.Crim.App.1978).

The remarks made by the prosecution in this case were within permissible limits of proper argument. The inferences drawn by the prosecution were legitimate ones supported by the evidence. Accordingly, we find no error.

The trial court’s judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Roger EATON v. STATE.
    2 Div. 333.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.

      James B. McNeill, Jr., Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   BARRON, Judge.

Roger Eaton was indicted by a Dallas County grand jury for robbery in the first degree. Upon trial, he was convicted of the lesser included offense of robbery in the second degree and was sentenced under the Habitual Felony Offender Act to life imprisonment. Hence this appeal.

Mr. Elton McGaha, the owner of Food-land, a grocery store in Selma, returned to his store on May 26, 1980, at about 8:00 P.M. after having closed it some two hours earlier. After he entered the store, he went to the office located in the front portion of the building and, upon opening the door, was “jumped by two black males.” After they “scuffled,” Mr. McGaha was taken by the two to the back of the store where he noticed the presence of a third individual. Mr. McGaha’s watch and billfold were taken from him by the trio, and he was then carried to the office area in the front portion of the store. On the way to the front, he was struck on the head by one of them. Mr. McGaha was forced to open the store safe, which contained about $3,000. The intruders tied a jacket around Mr. McGaha’s head and tied him to the office desk; he was warned not to move or try to escape under threat of being killed. He extricated himself after about five or ten minutes and called the police.

Mr. McGaha could not identify the “two black males” who jumped him or the third individual, and could not identify appellant as one of the robbers.

Based on information from a confidential informant and “four other individuals,” Captain Bobo of the Selma Police Department caused the issuance of a warrant for appellant’s arrest. After his arrest, appellant gave a statement to the police officers admitting his involvement in the robbery.

I

Appellant urges that his inculpatory statement should have been excluded on his timely motion^ because (1) the arrest was illegal, (2) the statement was not voluntarily made, and (3) the corpus delicti was not proved.

The issue of the validity of the arrest warrant, i.e., the claim that the arrest warrant was not issued on the basis of probable cause, thus causing the arrest to be illegal, was not preserved for appellate review. Neither the arrest warrant nor any of the supporting documents appear in the record, nor is there any indication that either side attempted to introduce them. Additionally, that issue was not raised in appellant’s motion to suppress; therefore, there was no hearing on the matter. The rule is well settled that appellate review is limited to matters appearing in the record, Conner v. State, 382 So.2d 601 (Ala.Cr.App.1980), cert. denied, 382 So.2d 605 (Ala.1980), and authorities cited therein. No adverse ruling on the validity of the arrest warrant was preserved for review. However, we do note in passing that the testimony of Captain Bobo would, in our opinion, readily support sufficient corroboration of appellant’s involvement in the robbery.

The “involuntariness” of appellant’s inculpatory statement is hinged on the theory that he was so intoxicated at the time that he was not conscious of the meaning of his words. The evidence fails to give credence to this theory. The evidence is clear that appellant had consumed a quantity of alcohol the preceding night, but there is a conflict in the evidence as to the degree, if any, of appellant’s intoxication at or about the time of the inculpatory statement. Certainly, except for appellant’s testimony, there was no evidence of the degree of intoxication which would have rendered the statement inadmissible. Intoxication, short of mania or such impairment of the will and mind as to make an individual unconscious of the meaning of his words, will not render a statement or confession inadmissible. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.1980), writ denied, Ex parte Tice, 386 So.2d 1187 (Ala.1980), and authorities cited therein.

The corpus delicti was clearly established by the testimony of the victim, Mr. McGaha, who established all the elements of the offense of robbery, and by the testimony of witness Inez Wood, implicating the appellant — her basis for the information being the appellant himself.

We find no error in the trial court’s ruling on the admissibility of appellant’s incul-patory statement.

II

Appellant urges that the testimony of witness Inez Wood constituted a violation of a privileged communication between husband and wife. The thrust of this contention is that there existed a common law marriage relationship between the appellant and the witness, thus requiring that the witness be informed of her right not to testify. We agree that such is the state of the law; however, the evidence fails in great measure to support appellant’s contention of the existence of a common law marriage. In fact, the witness in her testimony denied that they ever held themselves out as man and wife, in spite of the fact that they “lived together” at one time and she had two children by appellant. Obviously, the relationship did not ripen into a common law marriage. A common law marriage must rest on the mutual consent of the parties to it, a mutual agreement to be husband and wife, followed by cohabitation and living together as husband and wife. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (Ala.Civ.App.1976), and authorities cited therein.

The trial court correctly denied appellant’s motion to exclude the testimony of witness Inez Wood.

Ill

Lastly, appellant contends that he was improperly sentenced under the Alabama Habitual Felony Offender Statute, § 13A-5-9, Ala.Code 1975. The basis of the contention is that (1) there was no proof that the previous convictions constituted more than one offense, and (2) there was no proof concerning the prior offenses that the appellant either was represented by counsel or had waived assistance of counsel. The certified copies of the judgment entries, presented into evidence by the State at the sentence hearing and included as a part of the record in this case, affirmatively refute both of appellant’s contentions. Even though the appellant was sentenced on all three charges on the same day and the sentences were all concurrent, the judgment entries reveal that they were separate offenses and the appellant was represented by counsel as to each offense. Appellant was properly sentenced as a habitual offender.

The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR. In re AMENDMENT TO PROCEDURES FOR RULING ON QUESTIONS OF ETHICS.
    No. 61836.
    Supreme Court of Florida.
    Nov. 24, 1982.
    James C. Rinaman, Jr., President, Jacksonville, William O.E. Henry, President-elect, Lakeland, John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, of The Florida Bar; and Bill Wagner, Chairman, Tampa, of the Board Review Committee on Professional Ethics, for petitioner.
   PER CURIAM.

Pursuant to Florida Bar Integration Rule, article XI, rule 11.13(8), the Board of Governors has petitioned this Court for an amendment to the Bar’s procedures for ruling on questions of ethics. We approve the amendment and add rules 8 and 9 which provide, respectively, for periodic review of staff opinions by the professional ethics committee and that advisory opinions shall not be the basis for disciplinary proceedings. Rules 8 and 9 shall become effective upon the filing of this opinion.

It is so ordered.

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

       The rules read as follows:

        Rule 8

        A copy of each “staff opinion” shall be furnished to the chairman and each vice chairman of the Professional Ethics Committee, The committee shall establish procedures to monitor such staff opinions, and if appropriate shall recommend changes to the Code of Professional Responsibility. The committee may, by majority vote, overrule or set aside any staff opinion, whether or not appealed, and in such case the committee shall write an opinion in accordance with these rules.

        Rule 9

        Staff opinions, professional ethics opinions and opinions of the Board of Governors are advisory only and shall not be the basis for action by grievance committees, referees, or the Board of Governors except upon application of the respondent in disciplinary proceedings.


author: ADKINS, Justice.

text:
    Carl Ray SONGER, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections and Richard L. Dugger, Superintendent of Florida State Prison, Starke, Respondents.
    No. 62891.
    Supreme Court of Florida.
    Dec. 1, 1982.

      Joseph Jordan, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Peggy Quince and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for respondents.
   ADKINS, Justice.

By habeas corpus, petitioner Carl Ray Songer contends that he received ineffective assistance of counsel on his direct appeal from a judgment of guilt and sentence of death, Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I), and on an appeal from resentencing, Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979).

We have previously affirmed an order of the trial court denying a motion to vacate which was filed by petitioner. Songer v. State, 419 So.2d 1044 (Fla.1982) (Songer III).

Petitioner claims he was prejudiced by having to go forward by calling the first witness at the penalty phase of his trial with mitigating evidence and argues the burden of persuasion was improperly shifted to him. Petitioner was not prejudiced by appellate counsel’s failure to raise this point on appeal, as the contention is without merit. Mitigating circumstances are offered during the penalty phase to show the totality of the circumstances. The evidence is offered to show that the circumstances warrant less than the penalty of death. There is no improper shifting of the burden of persuasion. See Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982).

Petitioner next argues that this Court never gave him a proper, full review because appellate counsel failed to include the charge conference in the record and failed to contest its absence. It is true, as he says, that in all capital cases the appellant has an absolute, fundamental right to have his entire record reviewed. Delap v. State, 350 So.2d 462 (Fla.1977). All instructions in capital cases are required to be in writing. Fla.R.Crim.Proc. 3.390. As long as all instructions are required to be in writing, and all were in the trial of this case, the statements made by the court and the attorneys at the charge conference become immaterial. The petitioner could suffer no prejudice from the failure to include such statements in the record. Also, there was no objection made by trial counsel and appellate counsel was thereby precluded from raising the question on appeal.

Petitioner next contends that appellate counsel was ineffective because of his failure to raise the question of whether the homicide for which petitioner was convicted was committed to disrupt a governmental function. Although the issue of whether the homicide was committed to disrupt a governmental function was not raised in petitioner’s direct appeal brief, it was nonetheless discussed by the Court in Songer v. State, 322 So.2d 481 (Fla.1975) (Songer I) on page 484. Petitioner has failed to demonstrate that he was prejudiced in any way because of failure of his counsel to raise this issue instead of the Court’s pursuing the matter on its own volition.

Petitioner argues that appellate counsel was ineffective because of his failure to raise the question of whether petitioner, on resentencing, actually saw his presentence investigation report. This argument was resolved by the Court in petitioner’s appeal from resentencing. Songer v. State, 365 So.2d 696 (Fla.1978) (Songer II). It appears from this opinion that trial counsel was given a copy of the presentence investigation report prior to the original sentencing. On remand the trial court clarified the record by showing that petitioner’s trial counsel had a copy of the presentence investigation at the first sentencing hearing. At the second sentencing hearing, the trial court also offered petitioner’s counsel another opportunity to challenge the accuracy of the same presentence investigation report. See Songer II, 365 So.2d at 699.

The other questions presented in the petition for writ of habeas are also without merit.

The defendant has the burden to show that any specific omission or overt act by appellate counsel was a substantial and serious deficiency measurably below that of competent counsel. Petitioner also has the burden to show that any specific, serious deficiency, when considered under circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant. Knight v. State, 394 So.2d 997 (Fla.1981). These burdens have not been met by petitioner.

The petition for writ of habeas corpus is dismissed, and the motion for stay of execution is denied. No rehearing will be allowed.

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


text:
    Marvin FRANCOIS, Appellant, v. STATE of Florida, Appellee. Marvin FRANCOIS, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    Nos. 62874, 62916.
    Supreme Court of Florida.
    Dec. 1, 1982.

      Joel N. Rosenthal and Lawrence M. Mal-man, Miami, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., Miami, for appel-lee/respondent.
   PER CURIAM.

Marvin Francois appeals the trial court’s order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Additionally, he has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. We affirm the denial of the motion to vacate and deny the petition for writ of habeas corpus.

Francois was convicted of six first-degree murders, along with additional crimes, and received six sentences of death. On direct appeal, we affirmed his convictions and death sentences. Francois v. State, 407 So.2d 885 (Fla.1981). The Supreme Court of the United States denied a petition for writ of certiorari. Francois v. Florida, - U.S. -, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). On November 5, 1982, the governor signed a death warrant. Francois’ execution was scheduled for December 7, 1982. Francois filed a motion to vacate in the trial court on November 12, 1982. On November 15, 1982, the trial court scheduled a hearing on the motion for November 17. In the meantime, on November 16,1982, Francois filed a petition for habeas corpus in this Court. Because of the filing of the habeas petition here, the trial court determined it had been divested of jurisdiction to consider the motion for post-conviction relief. Francois then sought mandamus here to require the trial court to consider his motion. We granted his petition for writ of mandamus and the trial court then considered his motion, and, finding it to be without merit, denied it.

APPEAL

On appeal of the denial of his motion to vacate judgment and sentence, Francois contends that he was not provided with effective assistance of counsel at his trial. He argues that his counsel was ineffective by: (1) failure to diligently pursue the motion to dismiss the indictment on the ground of discriminatory selection of grand jurors; (2) failure to adequately investigate appellant’s character and background and to present nonstatutory mitigating evidence at the sentencing phase, particularly with regard to appellant’s mental state; and (3) failure to object to an instruction given to the jury concerning the process of weighing the aggravating and mitigating circumstances and to request an alternative instruction.

In Knight v. State, 394 So.2d 997 (Fla. 1981), this Court adopted a four-step analysis for determining whether an appellant has been provided with reasonably effective assistance of counsel. The test was adopted from United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1976) (en banc) and “provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel’s legal and tactical conduct at trial or on appeal.” Knight v. State, 394 So.2d at 1000-01. The four-step test requires (1) that the claimant identify a specific act or omission upon which the claim of ineffective assistance of counsel is based; (2) that the appellant show that the specific act or omission was a substantial and serious deficiency measurably below the standard expected of competent attorneys; (3) that the appellant show that the deficiency, under the circumstances, was so substantial as to have probably affected the outcome of the proceedings; and (4) that if the above three factors are established, the state still has the opportunity to rebut the claim of ineffective assistance by showing beyond a reasonable doubt that there was in fact no prejudice. Knight v. State, 394 So.2d at 1001.

Prior to trial, defense counsel moved to dismiss the indictment on the ground of discriminatory selection of grand jurors. He asked for discovery and an evidentiary hearing. The trial court denied these motions. On appeal, this Court declined to consider whether discriminatory selection had tainted the indictment, finding that defense counsel had agreed to a ruling without an evidentiary hearing with knowledge of prior court ruling on the same issue. Appellant now identifies this action of trial counsel as an overt act or specific omission entitling him to relief on the ground of ineffective assistance.

The right of the accused to reasonably competent assistance of legal counsel does not entitle him to have every conceivable constitutional challenge pressed upon the court. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). It was within the range of competence expected of attorneys in criminal cases for defense counsel to act as he did under the circumstances of the case. Counsel’s decision, under the circumstances, was not a substantial deficiency, measurably below the standard of performance expected of competent counsel.

With regard to the claim of failure to gather and present evidence of mitigating circumstances, Francois presents numerous assertions concerning his background, character, and the circumstances of his upbringing which he says defense counsel should have discovered and presented at the sentencing phase. This is not a case of total failure to present any mitigating evidence of argument whatsoever. Defense counsel did in fact present witnesses who testified concerning appellant’s character and background. Appellant does not identify any one of the enumerated items of fact which he relies on now as a specific omission which amounted to a substantial deficiency and which under the circumstances probably affected the outcome of the trial. Therefore, the argument based on failure to adequately present evidence of mitigation is without merit.

Francois also argues that his trial counsel was’ deficient in failing to object to the jury instruction on the process of weighing aggravating and mitigating circumstances and failing to request an alternative instruction. Appellant argues that the instructions regarding the weighing process were erroneous, that there was no instruction on the standard of proof of mitigating circumstances, and that the failure to object constituted ineffective assistance. Appellant specifically asserts that it was error to instruct the jury that it was to determine whether or not “sufficient mitigating circumstances exist to outweigh any aggravating circumstances found to exist.” Record on appeal at 1259. He argues that this instruction was an improper allocation of the burden of proof. An identical instruction was given in Arango v. State, 411 So.2d 172 (Fla.), cert, denied, - U.S. -, 102 S.Ct. 2973, 73 L.Ed.2d 1360 (1982). This Court said that the sentencing instructions had to be looked at as a whole:

A careful reading of the transcript ... reveals that the burden of proof never shifted. The jury was first told that the state must establish the existence of one or more aggravating circumstances before the death penalty could be imposed. Then they were instructed that such a sentence could only be given if the state showed the aggravating circumstances outweighed the mitigating circumstances. These standard jury instructions taken as a whole show that no reversible error was committed.

Id. at 174. The same principle would have applied in the present case if the objection had been raised. The instruction was proper. The failure to object to it and to request a different instruction did not, therefore, constitute a serious and substantial deficiency, measurably below the standard of competent counsel.

With regard to each of the points on appeal, the court below was correct in finding that the motion, files, and records in the case conclusively showed that appellant is entitled to no relief. Therefore it was proper to deny the motion without a hearing. Having found each of the points on appeal to be without merit, we affirm the denial of post-conviction relief.

HABEAS CORPUS

Marvin Francois also petitions this Court for writ of habeas corpus and alleges that he was afforded ineffective assistance of counsel on direct appeal from his convictions for first-degree murder and his sentences of death. We disagree and deny his petition.

In evaluating petitioner’s claim, we must look again to the principles announced in Knight v. State, 394 So.2d 997 (Fla.1981), and its progeny. Francois contends that his appellate counsel failed to raise two meritorious issues for review by this. Court and that this failure denied him his rights to a full and meaningful direct appeal. First, he argues that appellate counsel should have raised as an issue the trial court’s refusal to give the jury instruction requested by defense counsel relative to the aggravating circumstance that the murder was heinous, atrocious or cruel. The instruction requested stated:

The aggravating circumstances of “especially heinous, atrocious or cruel” means a murder which is accompanied by such additional acts as to set the crime apart from the norm. It is a crime which is unnecessarily torturous to the victim. This aggravating circumstance does not apply where the victim dies instantaneously and painlessly without additional acts.

Supplemental Record at 87. Absent this instruction, he urges, the jury was not provided the requisite guidance needed by it to make a reasoned judgment as to whether the murders were especially heinous, atrocious or cruel. Francois maintains that had appellate counsel raised this point on appeal, he would have had an arguable chance of being granted a new sentencing hearing.

The trial court during the sentencing phase did instruct concerning the elements of this aggravating circumstance. It advised the jury as follows:

Heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile. Cruel means designed to inflict a high degree of pain, utter indifference to or enjoyment of the suffering of others, pitiless.

Record on Appeal at 1260. Defense counsel did not object so the question of whether this instruction was indeed erroneous could not properly have been raised on appeal. Moreover, Francois has failed to demonstrate that his appellate counsel’s omission to raise as an issue on appeal the refusal of the trial court to give the instruction requested by his trial counsel was a deficiency, much less a substantial and serious deficiency measurably below that of competent counsel. Likewise, when considered under the circumstances of this case, he has failed to demonstrate that appellate counsel’s omission was substantial enough to demonstrate a likelihood that it would have affected the outcome of his appeal.

On direct appeal, appellate counsel argued that the trial court erred in finding that the capital felonies were especially heinous, atrocious and cruel. Evaluating this claim in light of the total record, we held that this finding could be sustained on the basis of the mental anguish inflicted on the victims as they waited for their “executions” to be carried out.

Francois next argues that appellate counsel was ineffective in not raising as an issue on appeal that the trial court’s instruction on mitigating factors was ambiguous and could be interpreted as limiting the jury’s consideration of mitigating factors contrary to the dictates of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). He contends that the instruction rendered his sentencing hearing fundamentally defective.

During the sentencing phase the trial court expressly instructed the jury that:

The aggravating circumstances which you may consider are limited to those upon which I have just instructed you. However, there is no such limitation upon the mitigating factors which you may consider.

Record on Appeal at 1262 (emphasis supplied).

The instructions given the jury regarding mitigating factors were neither ambiguous nor did they limit the jury to consideration of only statutorily enumerated mitigating factors. Had appellate counsel raised this issue on appeal, it would have been a frivolous issue.

Accordingly, finding no merit to Francois’ claims, we affirm the trial court’s denial of the motion for post-conviction relief and deny the petition for writ of habeas corpus. Francois’ petition for stay of execution is also denied. No rehearing will be allowed.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


author: EHRLICH, Justice.

text:
    STATE of Florida, Petitioner, v. Rogelio SOTO, Respondent.
    No. 61747.
    Supreme Court of Florida.
    Dec. 2, 1982.
    Jim Smith, Atty. Gen. and Leonard L. Elias, Asst. Atty. Gen., Miami, for petitioner.
    Sam W. Kleinfeld, Miami, for respondent.
   EHRLICH, Justice.

This cause is before the Court pursuant to a question certified by the Third District Court of Appeal to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In August 1980, Rogelio Soto was indicted by a grand jury in Colonial Heights, Virginia and charged with three counts of conspiracy with another to possess with intent to distribute controlled substances in violation of Virginia Code section 18.2-256 (1950). The alleged conspiracy occurred when Soto contacted an individual in Virginia by telephone while he was present in Florida. Contained in the indictments are allegations that each offense occurred between May 7, 1980 and June 1, 1980 in the City of Colonial Heights. The indictments do not allege that any of the acts occurred in Florida or in a third state.

After the bjlls of indictment were returned, the Commonwealth’s Attorney filed an application in the form of an affidavit with the Governor of Virginia requesting the return of Soto from the State of Florida. Initially alleging that Soto was a fugitive from justice, the affidavit further alleged that Soto “was in the State of Florida and conspired by telephone with a person in this State at the time of the commission of said crimes.” The Governor of Virginia then issued a requisition to the Governor of Florida demanding the surrender of Soto to the authorized Virginia agent for extradition. The demand stated that “[h]e committed acts in a State other than the State of Virginia ultimately resulting in the commission of a crime.” In addition, the demand certified the authenticity of the application and indictments.

In response to the requisition, the Governor of Florida in November 1980 issued a warrant of rendition for Soto. Pursuant to the authority of the warrant, Soto was arrested and taken into custody in this state.

Soto petitioned the circuit court for a writ of habeas corpus. At the end of the hearing, the lower court denied the writ and remanded Soto to the custody of the State of Florida. An appeal was taken to the Third District Court of Appeal. Soto v. State, 409 So.2d 1123 (Fla. 3d DCA 1982). That court reversed based on the authority of Ennist v. Baden, 158 Fla. 141, 28 So.2d 160 (1946), and certified the question of “the continued desirability of according to the Uniform Interstate Extradition Act, Chapter 941, Part 1, a more restrictive construction, as reflected by the decision of Ennist v. Baden, supra, than is accorded the Act by other courts of last resort.” 409 So.2d at 1125.

We answer the certified question in the negative and quash the decision of the district court of appeal.

This issue was previously before this Court in Ennist. In that case, Ennist was indicted in New York and charged with abandonment of his minor child in that state. An amended requisition recited that “[t]he accused, on the date said crime was committed, committed an act in a state other than the State of New York intentionally resulting in the commission of said crime in the State of New York, or that the accused was present in this State at the time of the commission of the crime and that he had thereafter fled from the justice of this state and may now be found in the State of Florida.” 158 Fla. at 144, 28 So.2d at 161. Attached to the indictment were the certificate of the District Attorney of Duchess County, New York and an affidavit of Phoebe M. Ennist in support of the allegations of the indictment. It was clearly shown that the appellant was not within the State of New York at the time that the offense was alleged to have been committed and was not a fugitive from justice from the State of New York and was not subject to extradition as such. This Court held that sections 941.03 and 941.06, Florida Statutes (1941), of the Florida Uniform Criminal Extradition Act were to be read in pari materia, i.e., “they require that the person sought to be extradited shall be charged by indictment, information or affidavit with committing an act in this state or in a third state intentionally resulting in a crime in the state whose executive authority is making the demand.” 158 Fla. at 146, 28 So.2d at 162-63.

In short, this Court held that the allegations that the person to be extradited committed an act in this state or in a third state intentionally resulting in a crime in the demanding state had to be contained in the charging document, and if not, such was fatally defective despite the fact that the allegations were contained in the supporting documents. We think this is an unwarranted narrow construction of the Act. We are of the view that these factual allegations can be supplied by the supporting documents, as they were in this case, i.e., the requisition warrant from Virginia, the rendition warrant from Florida, and the affidavit of the Commonwealth’s prosecutor from the City of Colonial Heights. Section 941.06 provides that the Governor of Florida may surrender on demand of the governor of any other state, any person in Florida charged in such other state in the manner provided in section 941.03 with committing an act in Florida or in a third state, intentionally resulting in a crime in the demanding state. Section 941.03, as it relates to section 941.06, requires that the demand for extradition be in writing and accompanied by an authenticated copy of an indictment which substantially charges the person demanded with having committed a crime under the laws of the demanding state. An authenticated copy of the indictment charging petitioner with having committed a crime under the laws of Virginia was furnished here, and the accompanying documents alleged that petitioner had committed an act in Florida intentionally resulting in a crime in Virginia. In our opinion the statutory requirements of our extradition act were complied with.

The purpose of interstate extradition is to “furnish an expeditious and summary procedure for bringing suspects to trial in the state where the alleged offense was committed.” Papas v. Brown, 88 Ill. App.3d 471, 476, 43 Ill.Dec. 568, 571, 410 N.E.2d 568, 571 (2d Dist.1980). To further this purpose, several appellate courts in our sister states have held that “the better rule is to judge the substantiality of the ‘charge’ for purposes of extradition by consideration of the indictments in conjunction with the supporting requisition documents.” Greenbaum v. Harr, 220 Kan. 525, 528, 552 P.2d 993, 996 (1976). Accord, In re Cooper, 53 Cal.2d 772, 349 P.2d 956, 3 Cal.Rptr. 140, cert, denied and appeal dismissed, 364 U.S. 294, 81 S.Ct. 104, 5 L.Ed.2d 83 (1960); Papas v. Brown; Kansas v. Holeb, 188 Neb. 319, 196 N.W.2d 387 (1972); In re Harris, 170 Ohio St. 151,163 N.E.2d 762 (1959); Ex parte Harrison, 568 S.W.2d 339 (Tex.Cr. App.1978). We agree.

There is a practical rationale which strongly supports a less restrictive construction of the Act than this Court previously gave to it. This is best articulated by Justice Traynor of the Supreme Court of California in In Re Cooper:

Modern communication and transportation facilitate the commission of crimes across state lines. A criminal who acts in one state to commit crimes in another may pose a far more serious problem to the latter state than one who commits a crime there and then flees from justice. When the criminal who commits his crime entirely in one state flees, he ordinarily poses no threat of additional crimes therein; if extradition fails, there is only frustration of that state’s interest in punishing him. In contrast, the criminal who operates from without the state’s borders poses a continuing threat. Since his conduct may be undetected or apparently harmless in the state where he acts, the only effective impetus for prosecution may come from the state that suffers the harm. Far more divisive than a state’s refusal to extradite a fugitive for a past offense would be its unwitting provision not only of a base of operation but of an asylum for those who commit crimes without being personally present at the place where their crimes are consummated.

53 Cal.2d at 776, 349 P.2d at 958, 3 Cal.Rptr. at 142.

Our holding results in no prejudice to Soto. The indictments do substantially charge him with the commission of a crime under the laws of Virginia, which in addition to authentication, is all that the statute requires of the charging instrument. The supporting documents clearly apprise Soto of the claim that the acts with which he is being charged occurred in Florida, but intentionally resulted in the commission of a crime in Virginia. Soto would have us continue to rely on a hypertechnical rule that operates to void otherwise valid extraditions. We cannot do so in light of the purpose of the interstate extradition laws. As stated by the Supreme Court of Nebraska, in Kansas v. Holeb:

Substantial rights of citizens must be protected, but constitutional and statutory provisions relating to interstate extradition must be liberally construed to effectuate their purpose, and courts of one state must avoid a view of their duties so narrow as to afford permanent asylum to offenders against laws of another state.

188 Neb. at 321-22, 196 N.W.2d at 389 (substantially quoting People ex rel. Robert v. Warden of New York City Prison, 114 N.Y.S.2d 18 (Sup.Ct.1952)). Likewise, the California Supreme Court in Cooper has said:

Protection from unjustified extradition does not lie in reading into the extradition laws purely technical requirements that a forewarned prosecutor could easily meet, but in the sound judgment of the respective Governors charged with the administration of those laws.

53 Cal.2d at 779, 349 P.2d at 959, 3 Cal.Rptr. at 143.

We recede from Ennist to the extent that it is inconsistent herewith. We quash the decision of the district court of appeal and the case is remanded with the instructions that Soto be remanded to the custody of the State of Florida to be extradited to the State of Virginia.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and MeDONALD, JJ., concur.

      . 941.03 Form of demand. — No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under s. 941.06, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by an authenticated copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of a warrant supported by an affidavit made before a committing magistrate of the demanding state; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.

        941.06 Extradition of persons not present in demanding state at time of commission of crime. — The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in s. 941.03 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand, and the provisions of this chapter not otherwise inconsistent, shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.


text:
    THE FLORIDA BAR, Complainant, v. Steven L. BERZNER, Respondent.
    No. 62714.
    Supreme Court of Florida.
    Dec. 2, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, for complainant.
    Mark S. Roth, Hollywood, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(a)(1), (3), (4), and (6), 2-107(A), 3-101(B), 5-105(A) and (B), 6-101(A)(3), 7-102(A)(7), and 9-102(A) and (B)(4) and of Florida Bar Integration Rule, article II, article VII, and article XI, rules 11.02(3)(a) and (4)(b). We approve the petition and hereby suspend respondent, Steven L. Berz-ner, from the practice of law for a period of two years effective January 3, 1983, thereby giving respondent thirty days to close out his practice and take the necessary steps to protect his clients. In accordance with conditions of the plea, prior to reinstatement, respondent is required to prove that he has been rehabilitated, that he has taken and passed the ethics portion of The Florida Bar examination, and that he has reimbursed any clients entitled to reimbursement. Upon reinstatement, respondent shall be placed on supervised probation for a period of two years and he shall be required to submit quarterly reports from a certified public accountant stating that respondent’s trust account records have been reviewed and that they are in compliance with The Florida Bar Integration Rule.

Costs in the amount of $1,465.48 are taxed against respondent, payable within thirty days of this Court’s order.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Robert T. GRACE, Respondent.
    No. 62732.
    Supreme Court of Florida.
    Dec. 2, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, for complainant.
    Jose G. Rodriguez, West Palm Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rules 1-102(A)(6), 2-110, 6-101, 7-101(A)(2), (3) and 9-102 of the Code of Professional Responsibility and article XI, Rule 11.02 of the Integration Rule of The Florida Bar. We approve the Petition, and the following is imposed:

A. The Respondent, Robert T. Grace, is suspended for a period of three years retroactive to July 13, 1980.
B. The Respondent is to make full reimbursement to the inventory attorneys for any costs incurred by them that have not been reimbursed by The Florida Bar within sixty (60) days of this Court’s Order.
C. The Respondent is to make full restitution to his former clients within sixty (60) days of this Court’s Order.
D. The Respondent is to make restitution to The Florida Bar in the amount of $8,106.64 for costs incurred in these disciplinary and inventory matters within sixty (60) days of this Court’s Order, for which, let execution issue in the amount of $8,106.64.
E. The Respondent is to make restitution to the Clients’ Security Fund of The Florida Bar for any claims paid by the Fund or which the Fund investigator finds meritorious.
F. The Respondent must meet the following specific conditions prior to his reinstatement to The Florida Bar in addition to the conditions provided in article XI, Rule 11.11 of the Integration Rule:
(a) Full reimbursement must have been made to all parties previously mentioned.
(b) Successful completion of a professional ethics course at an accredited law school.
(c) Successful completion of The Florida Bar exam.
(d) Upon reinstatement, a two year period of probation during which Respondent would:
(1) Be under the supervision of an experienced attorney.
(2) Submit monthly reports on the status of cases.
(3) And, if Respondent has control over client trust funds, would submit quarterly trust account reports prepared by a Certified Public Accountant.
(e) Respondent must submit an affidavit to The Florida Bar stating:
(1) The names and addresses of all clients at the time of his suspension.
(2) That he has contacted all former clients regarding restitution and whether restitution has been made.
(3) Reasons if restitution has not been made.

It is so ordered.

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


text:
    Lazaro FERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-507.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Rehearing Denied Jan. 10, 1983.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender and Don L. Horn, Legal Intern, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

Affirmed. McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981).


text:
    Miriam DONNER and Arthur J. Morburger, Appellants, v. Steve EDELSTEIN, Assistant City of Miami Attorney, Michael J. Murphy, Esquire, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., and The City of Miami, a municipal corporation, Appellees.
    No. 82-58.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.
    Miriam Donner and Arthur J. Morburger, in pro. per.
    Jose R. Garcia-Pedrosa, City Atty., and Mikele S. Carter, Asst. City Atty., Fowler, White, Burnett, Hurley, Banick & Strick-root and Michael J. Murphy, Miami, for appellees.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   ON MOTION FOR ORDER IN ACCORDANCE WITH MANDATE

PER CURIAM.

Our opinion and mandate in this case, see Donner v. Edelstein, 415 So.2d 830 (Fla. 3d DCA 1982), instructed the trial court that a determination that public records were exempt from disclosure could only be made by reference to specific records, none of which were before the trial court. Pursuant to our mandate, the trial court conducted a hearing and by order entered September 17, 1982, ruled that Section 90.502, Florida Statutes (1981) (effective July 1, 1979), exempted from disclosure under the Public Records Act, §§ 119.01-12, Fla.Stat. (1981), records reflecting lawyer-client communications without any reference to specific records in the hands of appellees. Indeed, the trial court’s order concludes with the words, “This order applies only to those matters that are subject to the attorney-client privilege,” and again leaves to appellees the right to unilaterally determine what documents are or are not covered by the privilege.

The trial court’s order does not comply with our mandate requiring reference to specific records. Therefore, upon Appellants’ Motion For Order In Accordance With Mandate, the trial court is directed to examine in camera the documents or copies thereof which are being withheld from disclosure under the privilege asserted, determine which are within the privilege, and to retain copies of all records examined as a sealed exhibit, so that either of the parties may thereafter seek appropriate review of the trial court’s rulings.


author: ERVIN, Judge. SHAW, Judge,

text:
    Maudie Mae JORDAN, Appellant, v. Essie Lee NOLL, Appellee.
    No. AE-443.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1982.
    Rehearing Denied Jan. 4, 1983.
    James R. Green of Levin, Warfield, Mid-dlebrooks, Mabie & Magie, P.A., Milton, for appellant.
    Donald H. Partington of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for appellee.
   ERVIN, Judge.

Maudie Mae Jordan appeals the trial court’s judgment cancelling and setting aside deeds of .realty. We reverse.

Appellant’s mother, Lillie Brantley, executed a deed on July 13, 1976, retaining a life estate in certain real property and conveying the remainder to appellant, one of her three living children. A second deed was executed July 27, 1976, in order to correct spelling in the earlier deed. Appellant began taking care of her mother’s necessities in 1967. Appellant testified that she cared for her mother when the two other sisters would not. To the contrary, the sisters testified that appellant turned their mother against them in an attempt to get the property. Mrs. Brantley suffered a stroke in 1979 and became incompetent. Appellee is the daughter and guardian ad litem of Mrs. Brantley.

Appellant contends that the trial court erred by failing to follow the requirements of In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), in considering the alleged procurement by appellant of the gift through undue influence. The Carpenter test requires the court to consider the evidence in three steps: (1) whether the beneficiary enjoyed a confidential relationship with the grantor; (2) whether the beneficiary actively procured the instrument, and (3) if the second factor is positive, a presumption of undue influence arises placing upon the beneficiary the burden of giving a reasonable explanation for the active role in the affairs of the grantor. If a reasonable explanation is provided, the presumption of undue influence disappears, but the burden of proof remains on the contestants of the deeds.

The record shows appellant admitted a confidential relationship with her mother, but her testimony denied active procurement. Appellant stated that she tried to discourage her mother from leaving her the farm. The attorney who handled the deeds stated that he carefully explained in detail the substance and consequences of the deeds to Mrs. Brantley and that she was alert and knew what she was doing.

Even so, a presumption of undue influence could reasonably have arisen because Mrs. Brantley had previously suffered mental disorientation, and the gift was made to the exclusion of the other daughters. Moreover, appellant took her mother to the attorney and was present when the deeds were signed. Appellant knew the contents of the deeds and kept them secret. See Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); Bryant v. Bryant, 379 So.2d 382 (Fla. 1st DCA 1980); Carpenter, supra, 253 So.2d at 702. The record shows also, however, that the trial court did not consider the reasonableness of appellant’s explanation for her active role in her mother’s affairs. The explanation given by the daughter was reasonable, thereby dispelling the presumption. The evidence was uncon-tradicted that appellant’s mother lived with her and depended on her after breaking a hip, and that the mother had mentioned leaving the property to appellant, but appellant repeatedly told her to wait. Moreover, the reason that appellant assumed an active role in her mother’s affairs was simply because her sisters failed to do so. It was in fact appellant who continued to care for her mother three years after execution of the deed, until her mother was afflicted by a stroke.

Once the presumption is dispelled, the judge must consider the evidence as a whole to determine if it is sufficient to support a finding of undue influence. Undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and willpower. Williamson, supra, 379 So.2d at 697. The trial court’s findings which are the basis of the finding of undue influence are not supported by the record. The court’s conclusion that Mrs. Brantley’s mental condition would not likely improve after her broken hip in 1974, and its complications, was contradicted by Dr. Batson, who further described her related mental disorientation as “not a permanent situation.” Dr. Batson stated that he expected her mind to clear after she recovered from the injury. Dr. Holmes testified that it was entirely possible for Mrs. Brantley on the one hand to be unable to handle her affairs in 1975, but on the other hand to be perfectly alert in 1976, which contradicts the court’s finding that “[wjhether or not Mrs. Brantley was incompetent when the deeds were executed in July, 1976, it is evident that her mental capacity was greatly impaired and that she did suffer considerable ‘mental weakness.’ ” Mrs. Brantley had not been hospitalized for thirteen months before the execution of the deed, and her doctors were unable to give a first-hand opinion as to her mental condition at the time of the execution. Further, the court’s findings ignored the testimony of the attorney.

The final judgment does not exhibit a consideration of the reasonableness of appellant’s explanation for her active role in her mother’s affairs. Such omission was error. The record supports the conclusion that appellant’s explanation was sufficient to rebut the presumption. Without the presumption, appellee did not present substantial, competent evidence in support of her burden of establishing undue influence. Accordingly, Mrs. Brantley’s gift to her daughter should be given effect because it does not “clearly appear” that her exercise of free will was prevented. See Carpenter, supra, 253 So.2d at 704.

REVERSED.

McCORD, J., concurs.

SHAW, J., dissenting.

SHAW, Judge,

dissenting.

I agree with the majority opinion insofar as it concludes that the presumption of undue influence was dispelled. Once the presumption disappears, the trial judge must then consider the evidence as a whole to determine if it is sufficient to support a finding of undue influence. The instant record reflects that the judge considered evidence that Mrs. Jordan enjoyed a confidential relationship with Mrs. Brantley and was active in procuring the deeds in question; that there was no consideration for the deeds; that Mrs. Brantley never expressed to anyone (except Mrs. Jordan) an intent to give the property to one child to the exclusion of others; that it was an unusual conveyance in that it was kept secret by the grantor and grantee; and that Mrs. Brantley suffered considerable “mental weakness.” In reaching this latter determination, the judge relied upon the testimony of Dr. Batson and Dr. Holmes, who treated the claimant in 1974 and 1975. Both observed arteriosclerotic vascular disease. Dr. Batson described her condition as severe cerebral arteriosclerosis with dementia. In defining dementia, the doctor stated, “It means that she was demented and not mentally responsible. She was disoriented.”

In my opinion, the findings and observations of the trial judge are supported by competent substantial evidence and afford a basis for his determination that the deeds in question were procured by the exercise of undue influence over one with impaired mental capacity. Even though a contrary inference can be drawn from the facts, it is not the province of this Court to substitute its judgment for that of the trial judge in absence of a clear showing that the trial judge committed error or that the conclusions reached are erroneous. Shapiro v. State, 390 So.2d 344 (Fla.1980); Delgado v. Strong, 360 So.2d 73 (Fla.1978); and Hudson Pulp & Paper Corp. v. Butler & Co., 297 So.2d 103 (Fla. 1st DCA 1974). In conformity with my belief that the judgment on appeal is supported by competent substantial evidence and that the conclusions reached in light of that evidence are not clearly erroneous, I would affirm.

      . Carpenter involved the execution of a will, but later cases have applied the same principles to inter vivos gifts. Majorana v. Constantine, 318 So.2d 185 (Fla. 2d DCA 1975); Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1973) (on rehearing); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); Bryant v. Bryant, 379 So.2d 382 (Fla. 1st DCA 1980).

      . We are aware of the recent Florida Supreme Court opinion in Cripe v. Atlantic First National Bank, 422 So.2d 820 (Fla., 1982), holding that the Fifth District Court incorrectly substituted its judgment for that of the trial court in part by holding that a presumption of undue influence arose in a transaction involving joint bank accounts. However, that case is distinguishable from the instant case on its facts and considerations. In Cripe, the trial court made no findings of fact or conclusions of law. The Fifth District reversed, concluding that the evidence had established facts giving rise to a presumption of undue influence and the defendants had failed to rebut the presumption. The supreme court held that the evidence did not establish a confidential relationship, thus a presumption of undue influence was not raised; however, even had the presumption been created, the defendants rebutted the presumption, as a consequence there was sufficient evidence to support the trial court’s determination. Here, there is no dispute that a presumption was raised. Once the defendant comes forward with responsive evidence, the presumption ceases to exist. The evidence giving rise to the presumption may still be considered together with contrary evidence and may support a permissible inference of undue influence depending on the facts of each case. The record in the case before us lacks sufficient evidence to support a determination of undue influence as defined in Williamson, 379 So.2d at 697.