text:
    Ben ALLEN, III v. STATE.
    6 Div. 326.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied March 23, 1982.
    Certiorari Denied, May 21, 1982
    Alabama Supreme Court 81-559.

      John Joseph Smith, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., Montgomery, for appellee.
   DeCARLO, Judge.

Robbery; ten years.

Officer George B. Campbell of the Birmingham! Police Department was working on an anti-robbery task force in the downtown area on the evening of September 18, 1979. Officer Campbell was a decoy on this task force; he was dressed in a Miller beer salesman’s uniform and had a “trucker’s wallet” attached to his belt. Officer Campbell was also equipped with a body transmitter so he could signal for assistance. At approximately 11:30 p. m. that evening, between 2nd and 3rd Avenue North around 8th Street, Officer Campbell was staggering around in an effort to give the appearance he was intoxicated. He was not, in fact, intoxicated but was feigning that condition.

While Officer Campbell was leaning against a dumpster acting like he was drunk, he was approached by a black male approximately 5T1", weighing 160 pounds, wearing light brown pants and a dark silky-type shirt. This individual asked Officer Campbell if he was “all right” and then put his hand on Campbell’s back. He next shoved Campbell on his back, grabbed Campbell’s wallet and broke it before stomping Campbell’s leg and running behind the dumpster. The wallet contained about thirty dollars in marked bills and a “bunch of play money.” The marked bills had been placed in the wallet by Sergeant Ed Cousins of the Birmingham Police Department. Officer Campbell further testified that the individual who grabbed his wallet ran toward a white over white Rive-ria automobile and entered the vehicle. Two minutes prior to the robbery Campbell had seen this individual leaning against the driver’s side of the Riveria talking to the driver of the car. The car was parked when Campbell “staggered onto the scene” and observed this conversation.

As Officer Campbell’s assailant entered the Riviera, Campbell yelled the code phrase “Come back with my money,” to inform the other officers assigned to the detail that the robber had not used a weapon. Campbell stated that when he “didn’t hear or see any of our people moving in . . . I said, ‘Halt, I’m a police officer.’” He then saw a “muzzle flash” from inside the car and a “gunshot come from it.” Campbell stated that he “tried to return fire. I got one shot off. They hit 3rd Avenue, West and went back west. About that time one of our pursuit ears got behind it.” Officer Campbell saw the Riveria five to ten minutes later in Ensley after it was finally stopped. He identified his assailant at the scene and also pointed out appellant as the other suspect who was in custody at the time.

Officer David L. Rogers of the Birmingham Police Department testified that he and his partner were in plain clothes and drove an unmarked ear on the night in question. Shortly after being told to be on the lookout for a white Riveria occupied by two black males, Officer Rogers heard two gunshots fired at close intervals and saw the Riveria pulling out of a driveway onto 3rd Avenue. As they passed the Riveria Officer Rogers leaned out his window and ordered the vehicle to halt. “I said, ‘Halt, police officers.’ ” The Riveria continued traveling at a high rate of speed and Officer Rogers fired four shots at the vehicle as it “bounced” onto 3rd Avenue after he had seen the passenger of the Riveria with something in his hand. Officer Rogers stated that he and his partner never lost sight of the Riveria during the entire four to five mile pursuit. He testified that they stayed one and one-half to two car lengths behind the vehicle. Officer Rogers testified that during the chase two marked cars with “lights on and everything” pulled out and tried to set up roadblocks, but that the Riveria “swerved around and kept on going.” Officer Rogers stated that he was finally able to fire a shotgun into the door of the Riveria “trying to slow them up,” before the vehicle finally “whipped around into a service station” and stopped in front of another police car. Rogers stated that he was the first officer up to the Riveria after it was stopped. He made an in-court identification of appellant as the driver of the vehicle. Officer Marvin Cobern’s testimony was similar, in pertinent part, to that of Officer Rogers’.

Sergeant Edward M. Cousins testified that on the night in question he gave Officer Campbell thirty dollars in legal currency and a stack of play money. Prior to giving Officer Campbell the money, Sergeant Cousins copied the serial numbers of the bills and dated the time the serial numbers were copied. He saw Officer Campbell place real money and play money in his wallet.

Sergeant Cousins testified that later in the evening a citizen brought some of the marked bills to him on the scene at the intersection of Avenue R and Bessemer Road. These were some of the same bills he had earlier given Officer Campbell.

Mr. Rick Conway testified in substance that he saw two cars traveling down 3rd Avenue, West around midnight on the night in question at a high rate of speed. He was standing beside his car at the time. After watching the two cars drive off Mr. Conway noticed something lying in the grass; it was some of the marked bills of currency. Mr. Conway testified that he gathered the money, got in his car and “drove down the street after the two cars.” Mr. Conway drove a few blocks and turned the money over to the custody of the police who were present at the scene.

Officer Donny Todd of the Birmingham Police Department also recovered one of the marked bills of legal currency and several pieces of play money at the 1500 block of 3rd Avenue, West on the night of the robbery.

I

Viewing the evidence presented by the prosecution in its most favorable light, as we are required, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, we find that the evidence was sufficient to prove appellant’s guilt beyond any reasonable doubt. Every element necessary to prove a prima facie case of robbery was firmly established. Robinson v. State, 337 So.2d 1382 (Ala.Cr.App.1976); Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975)Ala.Code § 13-9-1 (1975). Any conflicts in the evidence were for the jury to resolve. May v. State, 335 So.2d 242 (Ala.Cr.App.1976).

II

We have carefully examined the trial court’s ruling on appellant’s pretrial “Motion to Produce or Disclose” in light of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and do not find that the principles enunciated in those cases were violated.

It is within the discretion of the trial court as to whether a prosecuting officer will be compelled to turn over to the defense written notes made by officers during the investigation of a crime. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972). It is not error for a trial court to refuse to order a prosecuting attorney to produce and make available for inspection by an accused statements given by state witnesses to the prosecuting attorney or to compel the District Attorney to identify and produce the whereabouts of a witness or witnesses who allegedly were eyewitnesses to the incident in question. Thigpen, supra.

III

After the jury had begun deliberations it returned to the courtroom and requested additional instructions on the definition of conspiracy. At the conclusion of the court’s supplemental instructions appellant excepted to that portion of the instructions which reads:

“Actually, it is going to be up to the jury, factually, to determine when this aiding, abetting, assisting and encouraging did, in fact, occur. When it did, in fact, occur....” (R. 366)

Appellant’s exception was generally stated and no specific grounds for the exception were assigned.

We have reviewed the supplemental instructions as a whole and find that they were full and comprehensive. We therefore find no error which would require a reversal of this cause from that portion of the charge about which appellant complains. The trial court’s oral charge must be considered and construed as a whole and in connection with the evidence, and if, when so construed it asserts a correct proposition applicable to the evidence, a disconnected part or sentence is not reversible error. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978). Moreover, for an exception to be availing, the accused must separate the bad part of the charge from the good part. Treadwell v. State, 168 Ala. 96, 53 So. 290 (1910). An exception must be specific. Garner v. State, 53 Ala.App. 209, 298 So.2d 630 (1974).

IV

Appellant argued in his Motion for New Trial that the state impermissibly used its peremptory strikes to systematically remove blacks from the jury. Appellant is black and the victim in this case is white. Appellant’s jury was comprised of eleven whites and one black. At the hearing on the motion for new trial appellant called five lawyers who were experienced in the practice of criminal law in the Birmingham Division of Jefferson County. Two of these five criminal defense lawyers had at one time been employed as prosecutors in the district attorney’s office in Birmingham.

Their testimony in substance was, that over a period of several years in criminal eases where the accused was black and the victim was white, that the prosecuting attorneys from the district attorney’s office had a pattern of utilizing their peremptory strikes to remove black prospective jurors. It was admitted by these attorneys that there were exceptions to this practice. One of the defense lawyers also admitted that in cases involving a black defendant and a white victim he tended “toward striking whites as opposed to blacks.”

There was no official policy, written or otherwise, at the district attorney’s office which required or suggested that black prospective jurors be struck in cases where the accused was black and the victim was white. In fact, the contrary official policy existed. Mr. George Jones, one of the defense lawyers testifying who had formerly been a prosecutor, stated that Jefferson County District Attorney Earl Morgan’s “policy was that blacks were not to be removed from petty (sic) juries just because they were black. He made that statement on several occasions at staff meetings and generally passing through the office discussing the matter when it would raise its head.” (Emphasis added)

Miles Huffstutler testified that he worked in the district attorney’s office from 1974 to 1978 and that at no time during those years did he operate on the basis of using race as the sole basis for exercising his peremptory challenges. “To my knowledge there was no policy stated or unstated that anyone in the district attorney’s office would use that as the sole basis.”

Tommy Nail of the district attorney’s office, one of the prosecuting attorneys in the instant case, presented statistics from the records of his cases. His records represented a compilation of cases he had tried during a time frame of more than a year. Upon review of these records as evidenced by Mr. Nail’s testimony, it is clear that Mr. Nail did not exercise his peremptory strikes to systematically exclude blacks from the jury in cases involving a black defendant and white victim. Several of Mr. Nail’s records bear this out. Mr. Nail testified unequivocably that it was not his practice or policy as a deputy district attorney to strike blacks from juries solely on the basis that they were black.

Pete Johnson also testified that he had worked in the district attorney’s office from 1974 to 1979 before entering private practice. During this time Mr. Johnson testified that there was no policy by the office to exercise peremptory challenges to remove blacks from the juries. Mr. Johnson stated categorically that he exercised his peremtory strikes as a matter of trial tactics and not on the basis of race. “I looked for the people I wanted to keep on the jury to be people who were good citizens.... ”

Based on the foregoing facts we find that the trial court’s overruling appellant’s motion for new trial was correct. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). See also, United States v. Pearson, 448 F.2d 1207 (5th Cir.1971), and United States v. Carter, 528 F.2d 844 (8th Cir.1975). A peremptory challenge is defined in State v. Smith, 291 N.C. 505, 231 S.E.2d 663, 676, as follows:

“ ‘Peremptory challenges’ allowed each party are challenges which may be made or omitted according to the judgment, will, or caprice of the party entitled thereto, without assigning any reason therefor, or without being required to assign a reason.”

Under our law the State as well as the defendant is allowed a certain number of peremptory challenges. Brown v. State, 45 Ala.App. 391, 231 So.2d 167 (1970).

In the exercising of this right of peremptory challenges no reason at the time needs to be assigned. The very words “peremptory challenge” indicate an arbitrary and capricious kind of challenge to a certain number of jurors without showing any reason. See Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), wherein it is stated:

“The right of challenge comes from the common law with the trial by jury itself, and has always been held essential to the fairness of trial by jury. As was said by Blackstone, and repeated by Mr. Justice Story: ‘In criminal cases, or at least in capital ones, there is, in favorem vitoe, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all; which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous. This is grounded on two reasons: 1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.” [Citations omitted]

The reasons assigned in Lewis, supra, for peremptory challenges are equally applicable to the prosecution. It is well known that peremptory challenges are used as a matter of trial tactics to assure fairness by the accused and by the prosecution. The right of peremptory challenge is not a right to select, but a right to reject. U. S. v. Marchant & Colson, 12 Wheat. 480, 481, 25 U.S. 480, 6 L.Ed. 700.

As the Michigan Supreme Court observed in People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466, and it is apropros here:

“If appellant’s argument is carried to its logical conclusion, it would do away with the basic attribute of the peremptory challenge, because, if such argument is accepted in all cases involving defendants of the negro race, the prosecutor, upon challenging prospective jurors of that race, would either have to assign a cause for such challenge or take the risk of a new trial being granted on the ground that he discriminated because of color; as a result, no one could safely peremptorily challenge a juror where the defendant was of the same race as the juror. This right, claimed by Roxborough, would extend to members of his race a privilege that is not granted to any other race or class.”

The subjective thought processes of a prosecutor in deciding which prospective jurors to reject in any case is beyond, not only the inquiry of opposing counsel, but, the trial and appellate courts as well. U. S. v. Carlton, 456 F.2d 207 (5th Cir. 1972).

No appellate court should attempt to second guess the prosecution’s use of its peremptory challenges. Therefore, we hold that the appellant’s argument of unconstitutional peremptory challenging is untenable.

We have searched the record and find no error prejudicial to the appellant; therefore, the judgment and conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Willie James MITCHUM v. STATE of Alabama.
    1 Div. 338.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Willie James Mitchum was charged with murder in the first degree and at arraignment entered a not guilty plea. Thereafter, through counsel, Mitchum appeared in open court and withdrew his plea, entered a plea of guilty and the record shows a full colloquy establishing that the appellant was fully advised of his constitutional rights, both by his counsel, Mr. Reynolds T. Alonzo, Jr. and the trial judge, the Honorable Ferrill D. McRae, pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973). There was no appeal from this guilty plea proceeding at which the appellant was sentenced to 30 years’ imprisonment.

The instant appeal arises from the denial of a Petition for Writ of Error Coram No-bis, filed by the appellant, seeking to set aside his original conviction and sentence of 30 years’ imprisonment.

I

At the hearing conducted by the trial court on the appellant’s petition, pursuant to Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981) and Kennedy v. State, 409 So.2d 1010 (Ala.Cr.App.1982), the trial court found that the appellant had intelligently, understandingly and voluntarily entered his plea of guilty after full explanation of his constitutional rights by his originally appointed counsel and the trial court. The record on appeal to this court fully sustains the trial court’s findings.

Despite the appellant’s own testimony that he entered his plea of guilty originally because he thought he was going to get a sentence of ten years, the record of the coram nobis proceeding and of the original guilty plea proceeding fully discloses that the range of punishment was fully covered by the trial court pursuant to Carter v. State, supra.

Moreover, the appellant testified that his attorney had explained this to him and under questioning by the trial court the appellant replied that he also understood this and stated that he had no complaints as to the representation by counsel or the advice of counsel.

The record further discloses that the appellant went through the sixth grade in school and had previously signed a statement that he could read and write.

Under question by the trial court, the appellant stated that he fully understood his constitutional rights and there is a full Boykin v. Alabama colloquy in the record which sustains this finding by the trial judge.

The appellant’s assertion that his counsel did not adequately represent him is an unfounded claim, not sustained by the record in the trial court. Not only has the appellant failed to establish that the conduct of his counsel reduced the original trial proceeding to a farce, sham or mockery, Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978) but also the appellant has fallen far short of establishing that he was denied the “reasonably effective” assistance of counsel standard set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir.1981).

We hold that the appellant has substantially failed to meet the burden of proof required in attempting to sustain the allegations made in this proceeding. Cannon v. State, 6 Div. 750 (Ala.Cr.App. April 20, 1982.)

There is nothing in this record before us which even slightly indicates that the findings of the trial court are not correct. The judgment of the trial court is therefore due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Theo Braxton SPRADLEY v. STATE.
    3 Div. 392.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.

      Calvin M. Whitesell and Roger S. Morrow, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for possession of marijuana. Sentence was two years’ imprisonment.

I

The defendant argues that the evidence is insufficient to support his conviction because the State failed to prove that the substance found in his possession was marijuana.

The alleged defect in the sufficiency of the State’s evidence was supplied by a stipulation. Immediately before the State rested on its case in chief, the following occurred.

“THE COURT: Now, that was the understanding I had, but let’s get the record straight. Is it stipulated or not that this Exhibit that was just shown to Mr. Norton (a cellophane bag containing marijuana) — two things — that it is marijuana and that it is, in fact, the substance that was taken from this Defendant and that the chain of custody between the taking it from the Defendant and giving it to the Toxicologist and here today in Court is all established?
“MR. HARTLEY (Defense Counsel): Yes, sir.”

This stipulation relieved the State from the necessity of producing evidence to prove that the substance found in the defendant’s possession was marijuana. “An Attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made in the minutes of the court.” Alabama Code 1975, Section 34-3-21. “(W)ell settled principles of law, as well as sound policy, require us to give to an agreement of counsel, as to the conduct of trial in court, the same binding efficacy as if the agreement had been made by the party.” Rosenbaum v. State, 33 Ala. 354, 362 (1839). Here, the stipulation was made in open court and was binding upon the parties. Anonymous v. Anonymous, 353 So.2d 515 (Ala.1977); Rule 47, A.R.A.P.

A stipulation is a judicial admission, and, as such, it prevents the party who makes it from introducing evidence to dispute it, and relieves a proponent from the necessity of producing evidence to establish facts admitted therein. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460, 467 (1958). A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof. Ritch Realtors, Inc. v. Kinard, 45 N.C.App. 545, 263 S.E.2d 38, 39 (1980).

One who has stipulated to certain facts is foreclosed from repudiating them on appeal. Wolf Corp. v. Louis, 11 Ariz.App. 352, 464 P.2d 672 (1970).

“(A) stipulation cannot be contradicted by evidence tending to show the facts to be other than as stipulated, and on appeal, neither party will be permitted to argue that the facts were otherwise, or that any material fact was omitted.”
73 Am.Jur.2d, Stipulations, Section 8 (1974).

, This issue was not raised in the trial court. The motion to exclude the State’s evidence was on the single ground that the State had failed “to show the knowledge of” the marijuana on the defendant. The issue was not raised on the motion for new trial.

II

The defendant contends that his conviction should be reversed because the record does not affirmatively disclose a voluntary and intelligent waiver of his right to a jury trial.

The defendant was present and testified at the hearing on the motion to suppress. At that hearing defense counsel stated:

“Your Honor, we intend to waive the jury trial in this case and are going to let the case be heard by you. So, therefore, it is scheduled for trial next Monday, and we might offer other testimony but just like to have the Court take oral notice that we will not have a jury trial.”

The minute entry reflects that “the defendant now in open court withdraws his demand for trial by jury and announces himself ready for trial.”

A defendant charged with a non-capital felony may waive a jury trial with the consent of the State and the trial court, provided the waiver is made knowingly, voluntarily and intelligently in light of all the surrounding circumstances. Singleton v. State, 48 Ala.App. 753, 262 So.2d 767 (1970), 288 Ala. 519, 262 So.2d 768, on remand, 48 Ala.App. 157, 262 So.2d 772, cert. denied, 288 Ala. 751, 262 So.2d 776 (1971); Junior v. State, 325 So.2d 556 (Ala.Cr.App.1979). A colloquy of the type required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), on a plea of guilty is neither necessary nor mandated. Murphy v. State, 347 So.2d 1369 (Ala.Cr.App.), cert. denied, 347 So.2d 1371 (1977). See also Day v. State, 395 So.2d 119 (Ala.Cr.App.1980), cert. denied, 395 So.2d 120 (Ala.1981).

This issue was not raised in the trial court and is not preserved for review before this court. This court “will not consider on appeal any constitutional question not raised below.” Steele v. State, 289 Ala. 186, 189, 266 So.2d 746 (1972). “(E)ven constitutional rights have to be raised seasonably in the trial court.” Fuller v. State, 269 Ala. 312, 326, 113 So.2d 153 (1959).

This court has refused to consider certain constitutional issues that were not raised in the trial court: denial of speedy trial, McMorris v. State, 394 So.2d 392 (Ala.Cr.App.), cert. denied, Ex parte McMorris, 394 So.2d 404 (1980); admission of statement taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Stewart v. State, 398 So.2d 369 (Ala.Cr.App.), cert. denied, Ex parte Stewart, 398 So.2d 376 (Ala.1981); excessive bail, Smoke v. State, 347 So.2d 564 (Ala.Cr.App. 1977); right to arraignment, Davis v. State, 331 So.2d 807 (Ala.Cr.App.1976); due process and equal protection violations, Spivey v. State, 55 Ala.App. 687, 318 So.2d 382 (1975); validity of search, Stokes v. State, 54 Ala.App. 112, 305 So.2d 387 (1974); constitutionality of a statute, Smith v. State, 392 So.2d 1273 (Ala.Cr.App.1980).

Because this issue is initially presented and argued on appeal, this Court has nothing to review.

Ill

The defendant contends that the marijuana found on his person was the product of an illegal search and seizure. We disagree.

At 12:30 A.M. on November 22, 1980, Montgomery Police Sergeant H. C. Norton had just come off duty and had stopped at the Big Apple grocery store on the Atlanta Highway to buy some cigarettes. Norton was familiar with the defendant and knew that he had previous drug arrests. A store employee took the defendant over to one side of the store after the defendant allegedly went past the checkout counter without paying for a package of cigarettes. The defendant was intoxicated.

Officer Norton first approached the defendant because “he was causing a disturbance in the grocery store.” The store employee told Norton that the defendant “did not pay for the cigarettes he had” and that the defendant “was trying to steal them.” Sergeant Norton noticed a knife scabbard on the defendant’s side. He identified himself as an official police officer and removed the knife from the scabbard. Norton then frisked the defendant for other weapons. During this pat down, Norton felt a hard object in the defendant’s back pocket. Sergeant Norton testified that he thought the “hard object” was either another knife or “perhaps a metal pipe people hold in their fist when they hit somebody.” The “hard object” turned out to be a “rolled up plastic bag” of marijuana.

A police officer may stop someone to investigate possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Minnifield v. State, 390 So.2d 1146 (Ala.Cr.App.), cert. denied, Ex parte Minnifield, 390 So.2d 1154 (Ala.1980); Bagony v. City of Birmingham, 371 So.2d 80 (Ala.Cr.App.1979).

“A peace officer may in appropriate circumstances and in an appropriate manner approach or accost a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. A policeman who lacks the precise level of information necessary for probable cause to arrest is not required simply to shrug his shoulders and allow a crime to occur or a criminal to escape, and a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” 6A C.J.S. Arrests Section 38 (1975).

See Alabama Code 1975, Section 15-5-30.

A stop is permissible where the officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980).

“In order to be valid, an investigatory stopping or detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. The detention and investigation may not be based on a peace officer’s unsupported intuition, subjective feelings or suspicion, mere hunch, or good faith, but it must be based on the objective perception of events, without particularization as to a specific crime. There must be a rational suspicion on the part of the officer that some activity out of the ordinary is taking or has taken place, some indication to connect the person under suspicion with such activity, and some suggestion that the activity is related to a crime.” 6A C.J.S. Arrests Section 40.

The test for determining whether a law enforcement officer has probable cause to stop a person was set out in United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

Assuming a valid stop, a limited search of the suspect for weapons may be justified.

“The Terry case (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), created an exception to the requirement of probable cause an exception whose ‘narrow scope’ this Court ‘has been careful to maintain.’ Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted .... Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or indeed, any search whatever for anything but weapons.” Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 343-44, 62 L.Ed.2d 238 (1979).

Here, the facts available to Sergeant Norton when he came to investigate would warrant a man of reasonable caution in the belief that the action taken was appropriate. Norton had a rational suspicion that the defendant was engaged in some type of criminal activity because the store employee was accusing the defendant of shoplifting. Thus, Norton had a particularized and objective basis for suspecting the defendant of criminal activity.

Here, the facts that Sergeant Norton observed a knife scabbard on the defendant’s side and that the defendant was “rowdy” and intoxicated justified the frisk or pat down of the defendant for weapons. Oliver v. State, 385 So.2d 69 (Ala.Cr.App.1980); Travis v. State, 381 So.2d 97 (Ala.Cr.App.), cert. denied, Ex parte Travis, 381 So.2d 102 (Ala.1979); Campbell v. State, 354 So.2d 325 (Ala.Cr.App.1977); Herrin v. State, 349 So.2d 103 (Ala.Cr.App.), cert. denied, Ex parte Herrin, 349 So.2d 110 (Ala.1977).

Here Sergeant Norton felt a hard object in the defendant’s back pocket and reasonably suspected that it might have been a weapon. Under other circumstances, the fact that an officer has observed a bulge in the defendant’s clothing has justified a frisk for the officer’s safety. McNamara v. State, 357 So.2d 410 (Fla.1978); Neely v. State, 402 So.2d 477 (Fla.App.1981); Brown v. State, 358 So.2d 596 (Fla.App.1978).

Our review of the totality of the circumstances convinces us that Sergeant Norton acted in a reasonable manner and was justified in frisking the defendant. Upon finding that the suspected weapon was actually marijuana, Sergeant Norton had probable cause to arrest the defendant for unlawful possession. Butler v. State, 380 So.2d 381 (Ala.Cr.App.1980).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    William ELMORE, III v. STATE.
    6 Div. 671.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Hugh C. Henderson, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Janet A. Wade, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for robbery in the first degree. Alabama Code 1975, Section 13A-8-41. Sentence was twenty years’ imprisonment.

I

The trial court did not commit error in failing to instruct the jury on any lesser included offense for two reasons. First, although an objection was made to the judge’s failure to so instruct, there were no written requested charges on any lesser included offense. Yates v. State, 390 So.2d 32 (Ala.Cr.App.1980); Hall v. State, 375 So.2d 536 (Ala.Cr.App.1979). Second, the only reasonable conclusion from the testimony is that the defendant is guilty of robbery or he is not guilty of any crime whatsoever. The undisputed evidence revealed that one of the robbers was armed with a pistol, which elevated the crime to robbery in the first degree. Taylor v. State, 380 So.2d 363 (Ala.Cr.App.1980). Here, the only issue was the identity of the robbers and not the degree of the robbery. Gray v. State, 394 So.2d 92 (Ala.Cr.App.), cert. denied, 399 So.2d 840 (Ala.1981).

II

When testifying, Juatella Majors, the clerk of the Majik Market that was robbed, stated that, “prior to that we had had a robbery.” This statement was volunteered and not in response to any question.

The trial judge sustained the objection of defense counsel and instructed the jury to disregard.

The trial judge did not err in overruling defense counsel’s motion for a mistrial based on this remark. There is a pri-ma facie presumption against error where the trial judge immediately charges the jury to disregard improper remarks. Nix v. State, 370 So.2d 1115, 1117 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979). A motion for mistrial should not be granted where the prejudicial qualities of a comment can be eradicated by action of the trial court. Nix, 370 So.2d at 1117. Even those “inadvertent slips” which are prejudicial to the defendant need not be cause for a mistrial where the judge acts promptly to impress on the jury that the improper statements are not to be considered by them. Richardson v. State, 374 So.2d 433 (Ala.Cr.App.1979). “When prejudicial remarks have been made, the trial judge is in a better position than an appellate court to determine whether the remarks were so prejudicial as to be ineradicable.” Chambers v. State, 382 So.2d 632, 635 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980).

Ill

The photographs taken of the actual robbery were properly admitted into evidence over the objection that the person who developed the film did not testify.

A photograph is admissible when properly authenticated — when a witness testifies that the picture as exhibited accurately reproduces objects or actions which he observed. Osborn v. Brown, 361 So.2d 82 (Ala.1978). Consequently, it is not necessary to produce the photographer or other person present who saw the location of the camera where this is reasonably apparent from the photographs. McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969).

“A photograph may be authenticated by any witness who is familiar with the subject matter of the picture and who is able to testify that the photograph is a substantially correct depiction of the relevant scene at the time of the event under inquiry. It is not necessary that the witness who testifies to the correctness of the photographs shall have taken it or have seen it taken.”
C. Gamble, McElroy’s Alabama Evidence, Section 123.03(3) (3rd ed. 1977).

When photographs are properly authenticated in this method, it is not necessary for the individual who developed the film to testify before the photographs are properly admitted into evidence. 32 C.J.S., Evidence Section 715 (1964). The test for determining the admissibility of a photograph is whether it is a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry.

IV

The defendant argues that the testimony of thirteen year old Mike Cooper should have been excluded because it “added nothing new” to the State’s evidence and inflamed and prejudiced the jury.

Although Cooper was an eyewitness to the robbery, he could not identify the defendant as one of the robbers. Because he was an eyewitness, his testimony was relevant and we find no error in the admission of his testimony.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Betty Jean SCOTT v. STATE.
    6 Div. 693.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Hiram Dodd, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty of manslaughter, and the court fixed her punishment at imprisonment in the penitentiary for one year and one day. The indictment charged that defendant “did intentionally cause the death of another person, Hubert Scott, by shooting him with a pistol, in violation of § 13A-6-2 of Criminal Code of Alabama,” which provides, inter alia:

“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; or

With the apparent approval of both parties, the court charged the jury, as to the issue raised by defendant’s plea of not guilty, that it could find her guilty either of murder or of manslaughter as proscribed by Code of Alabama 1975, § 13A-6-3(a)(2), which provides that a “person commits the crime of manslaughter” if:

“He causes the death of another person under circumstances that would constitute murder under section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”

According to the undisputed evidence, which included testimony of the defendant, defendant caused the death of the alleged victim, a former husband of the defendant, by shooting him with a pistol. There was considerable evidence that he had hurt her severely and had threatened to kill her a short time before and on the same day he was killed.

The only issue presented on appeal is as to a part of the court’s oral charge on the defense of self-defense. No contention is made that there was any error in the court’s charge as to the elements of a valid defense of self-defense other than as it pertains to the qualified duty of an accused to retreat before he exercises deadly force to kill. As to this the court said:

“A person is not, however, justified in using deadly physical force upon the other person if it reasonably appears or the defendant knows that she can avoid the necessity of such force with complete safety if she retreats, that is, leaves the scene, and retreats.”

At the conclusion of the oral charge, the court called for objections or exceptions, and the following occurred:

“MR. WILKINSON: Two things, Judge: First of all, in your definition of retreat or at the time of retreat we respectfully except because you did not say that the doctrine of retreat only applies if it doesn’t increase the danger to the person. I don’t think you said that.
“THE COURT: I said with threat to safety.
“MR. WILKINSON: My exception in your definition of retreat, if it doesn’t increase the danger to the person.”

There was an exception to one other portion of the court’s charge, which dealt with the difference between murder and manslaughter, but as the verdict found defendant guilty of manslaughter, rather than murder, appellant has no basis for a complaint, and none is made by appellant, in this respect.

The undisputed evidence shows that the homicide was at a place at which the qualified duty to retreat before taking human life in self-defense applied.

The qualified duty to retreat as a limitation upon a valid defense of self-defense has been variously stated by the appellate courts of Alabama but with little, if any, substantial conflict therein. The reason for the variety is largely the variety of the circumstances that called for emphasis upon different features of the subject in the many pertinent opinions on appeal. At times, the predominant issue was whether the accused could have retreated with safety to himself. In such cases, the duty was generally expressed in the term of “with safety to himself” or synonymous language. At other times, the hinge of major controversy was whether the accused could have retreated “without increasing his danger or peril,” and usually the duty was then substantially so expressed. King v. State, 233 Ala. 198, 171 So. 254 (1937); Collins v. State, 17 Ala.App. 186, 84 So. 417, cert. denied, Ex parte Collins, 203 Ala. 697, 84 So. 924 (1919). The latter of the two expressions is clearly a more stringent qualification upon the duty to retreat than the former, and, when applied as a test of the efficacy of a defense of self-defense, it is less favorable to the accused than the former.

The language of the court in charging in effect that defendant would not have been required to retreat if she knew, or it reasonably appeared to her, that she could have avoided “the necessity of” deadly force if she could have retreated “with complete safety,” was more favorable to defendant than that to which she was entitled. It results that no error prejudicial to defendant is to be found in the oral charge of the court in respect to the part of the court’s oral charge challenged by appellant.

We further hold that there is no error in the record prejudicial to the defendant and that the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . West’s Ala. Digest, Homicide, Key No. 118(1)


author: HARRIS, Presiding Judge.

text:
    John M. SCRAFFORD v. STATE.
    7 Div. 893.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    George N. Sims, Jr.,.Talladega, for appellant.

      Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was indicted and convicted of trafficking in cannabis in violation of § 20-2-80(1), Code of Alabama 1975. Sentence was set at nine years imprisonment and a $25,000 fine assessed.

The State’s first witness was Deputy Michael Martin of the Talladega County Sheriff’s Department. Deputy Martin testified that, on March 5, 1981, he and two other officers were dispatched to a rural Tallade-ga County residence to apprehend a juvenile who had escaped from a juvenile detention home in Florida. The juvenile told the officers that two men had given her a ride from Florida and were presently parked at a nearby store. The two men were appellant and Robin Pauli, a friend of the appellant.

The officers decided to talk with the men and question them about a pistol the juvenile had allegedly stolen. The officers found the car parked in the store parking lot. As the officers talked with Robin Pauli in the parking lot, appellant walked out of the store. The officers asked the two men if they had seen a pistol and the men replied that they had not. One of the officers asked who owned the car and appellant replied that the car belonged to him. Deputy Martin’s partner, Deputy Willard Hurst, then asked appellant if he could search the car for the pistol. Appellant gave his verbal approval and agreed to sign a written search consent form. As Deputy Hurst was writing out the form, Pauli told Deputy Martin that there was marijuana in the car. Pauli then opened the car door, retrieved a paper sack filled with bags of marijuana and handed the drugs to Martin.

Deputy Willard Hurst corroborated Deputy Martin’s story. Deputy Hurst also testified that, after Pauli handed over the marijuana, Hurst arrested the two men and read them their rights. After they were asked if they understood these rights and if they wished to talk; the two men stated that they wished to talk with the officers. Appellant told Deputy Hurst that the marijuana was jointly owned by the two men, each owning one-half. Appellant was asked if he had hidden any marijuana behind the store as the officers drove up. Appellant, after responding that he hajd, walked behind the store and returned with a small bag of marijuana.

After the men were driven to the Tal-ladega County Jail, Deputy Hurst again read appellant his rights. Appellant then signed a “waiver of rights” form, stated he understood the rights, and asked to make a statement. In the statement, appellant told Deputy Hurst that, while in Florida, the two men bought two pounds of marijuana in addition to a quarter, pound and seven bags they already had. After buying the drugs, the two men agreed to drive the juvenile to Talladega. Appellant admitted in his statement that he gave the officers permission to search the car. He further admitted hiding the small amount of marijuana.

The state then established a chain of custody of the marijuana found in the car. The marijuana ultimately ended up in the lab of David Thorn of the Department of Forensic Sciences. Mr. Thorn testified that the paper sack contained 2.84 pounds of marijuana.

After the state rested, appellant called Robin Pauli to the stand. Pauli stated that he bought the marijuana alone while appellant was at a girl friend’s house. Pauli also testified that appellant never knew of the presence of marijuana in the car.

On cross-examination, Pauli admitted that he and appellant had spent the night while in Talladega with a Randy Thrower. He also admitted that, notwithstanding his contrary testimony during direct examination, Thrower was in the car with them just prior to their arrest. Pauli further admitted that he and appellant had driven the owner to a bank so that Thrower could cash a check. • However, he denied selling Thrower an ounce of marijuana in the presence of appellant, and he denied making a statement to that effect to Deputy Hurst.

Appellant then took the stand for his own defense. Appellant admitted hiding a small amount of marijuana he had in his possession before his arrest, but denied even knowing of the paper sack of marijuana Pauli turned over to the officers.

On cross-examination, appellant admitted staying at Thrower’s house while in Tal-ladega. This admission conflicted with appellant’s assertion on direct that he had slept in his car while in Talladega. Appellant also admitted claiming one-half ownership of the marijuana when he was arrested. Finally, appellant admitted riding with Pauli and Thrower to a Talladega bank while Thrower cashed a check.

Appellant rested and the state called Randy Thrower as a rebuttal witness. Thrower testified that the two men asked if he knew anyone who would be interested in buying various drugs in Talladega. He also stated that he struck a deal to buyan ounce of marijuana for $30. Although Thrower negotiated the price with Pauli, the conversation was conducted in appellant’s ear and in appellant’s presence. Pauli was in the driver’s seat and appellant was in the front passenger’s seat.

Deputy Hurst was recalled to the stand. Deputy Hurst testified that Pauli while giving the statement told him that Thrower had bought an ounce of marijuana for $30.

Appellant raises two issues on appeal, neither of which has any merit.

Appellant first contends that the state failed to prove a prima facie case of possession.

The three elements essential for proof of possession of contraband are: (1) actual or potential control, (2) intention to exercise dominion, and (3) external manifestation of intent and control. Cook v. State, Ala.Cr.App., 341 So.2d 183 (1976). The state may prove constructive possession, but must prove beyond a reasonable doubt that the defendant had knowledge of the presence of the prohibited substance Coleman v. State, Ala.Cr.App., 394 So.2d 82 (1981).

The record amply establishes prima facie proof of all of these elements. Appellant admitted owning the car where the contraband was found. Appellant admitted hiding marijuana before the arrest. He admitted telling the officers when he was arrested that one-half of the marijuana was his. In his statement to Deputy Hurst, appellant further stated he and Pauli bought two pounds of the seized marijuana while in Florida. Finally, Randy Thrower testified that he gave Pauli $30 for one ounce of marijuana in appellant’s presence. Pauli stated the same to Deputy Hurst. The fact that Pauli and appellant denied part of this on the stand was a question for the jury. Lee v. State, Ala.Cr.App., 350 So.2d 743 (1977).

Appellant’s other contention is that the trial court improperly allowed hearsay evidence to be introduced. Specifically, appellant contends that Deputy Hurst should not have been allowed to testify that Pauli had told him while giving a statement that he sold Randy Thrower an ounce of marijuana for $30. The record shows that Pauli, after being asked if he had made such a statement to Deputy Hurst, denied that he had. After this denial, Deputy Hurst was recalled as a rebuttal witness and testified Pauli had made such a statement.

The general rule is that a witness, who on cross-examination denies making a statement of material fact, may be impeached by use of another witness to whom the inconsistent statement was made. To introduce such a statement a predicate must be laid. Gray v. State, 56 Ala.App. 131, 319 So.2d 750 (1975); Bryson v. State, 38 Ala.App. 517, 84 So.2d 782, affirmed Ala. 264 Ala. 111, 84 So.2d 785 (1956). We believe by asking Pauli if he told Deputy Hurst that he had sold the marijuana, and by Pauli’s denying making the statement, a proper predicate was laid to call Deputy Hurst for impeachment purposes. Gray, supra. The testimony was material in that it tended to show that appellant was aware of the presence of marijuana.

The sufficiency of the evidence is not presented to us for review. There was no motion to exclude the State’s evidence assigning specific grounds; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the court; no motion for a new trial was filed; and there were no adverse rulings of the trial court on the admission of any evidence which contained merit. Alabama Digest, Criminal Law, Key No. 1063(1).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    James PETTY v. STATE.
    7 Div. 922.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted for attempted robbery in the first degree. Sentence was twelve years’ imprisonment. This case is reversed and the cause remanded because the indictment did not charge any offense.

The indictment, in pertinent part, charged that the defendant

“did, with the intent to commit the crime of Robbery 1st Degree, Section 13A-8-41 of the 1975 Code of Alabama, attempt to commit said offense, in violation of Title 13A-4-2 of the 1975 Code of Alabama,

This indictment charges that the defendant violated the attempt statute by attempting to commit the crime of robbery in the first degree.

Alabama’s attempt statute is found in Alabama Code 1975, Section 13A-4-2 (amended 1977).

“Section 13A-4-2. Attempt.

“(a) A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

Robbery in the first degree is defined in Section 13A-8-41.

“Section 13A-8-41. Robbery In The First Degree.
“(a) A person commits the crime of robbery in the first degree if he violates section 18A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”
(emphasis added)

By statutory definition, robbery in the third degree is a lesser included offense of robbery in the first degree.

“Section 13A-8-43. Robbery In The Third Degree.
“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with the intent to compel acquiescence to the taking of or escaping with the property.” (emphasis added)

Of significance is the phrase “in the course of committing a theft” which is defined to embrace “acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.” Section 13A-8-40(b) (emphasis added).

Because the definition of robbery has been enlarged and expanded by the new criminal code, “the former offense of assault with intent to rob has been merged into the present offense of robbery.” Marvin v. State, 407 So.2d 576, 579 (Ala.Cr.App.1981). For this same reason the former crime of attempted robbery now constitutes robbery. Section 13A-8-43(a) adds a definition that extends robbery to include conduct which occurs in an attempt to commit a theft or in flight after the attempt or commission. Section 13A-8-40(b). “Thus, a robbery is committed if the required special circumstances exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission.” American Law Institute, Part II, Model Penal Code Section 221.1 at p. 99 (1980).

The Attorney General recognizes that “the shadow of Reed v. State, 372 So.2d 872 (Ala.Cr.App.1978), reversed, 372 So.2d 876 (Ala.1979), looms over the instant case.” We find the principles of Reed indistinguishable, and therefore, its application controlling.

In Reed, our Supreme Court found that the statutory offense of bribery included the attempt to bribe. The court specifically held that because the statute defined bribery — a felony — to include attempts to bribe, an accused charged for the felony of bribery could not be convicted of a misdemean- or under the general attempt to commit a crime statute. Reed, 372 So.2d at 877.

As in Reed, we hold that the statute of robbery in the third degree subsumes all activities and conduct which may be characterized as an attempt to commit robbery. The statute defines the crime of robbery as including the attempt to commit robbery and requires no actual theft or asportation of property.

As in Reed, 372 So.2d at 878, it is pertinent to inquire: What possible set of circumstances would fall short of the proscribed conduct of Section 13A-8-43, and yet constitute the crime of attempt to commit robbery? “We are unable to postulate — with reasonably intelligible standards — a cause of conduct which does not rise to the level of that course of conduct contemplated by this .. . (robbery) statute, but which would be criminally cognizable as a lesser offense. This reinforces our conclusion that the general attempt statute is here inapplicable.” Reed, 372 So.2d at 878.

A trial under an indictment so defective that no valid conviction can be rendered will not support a plea of former jeopardy and the defendant may be reindicted. Wiliiams v. State, 333 So.2d 613, 614 (Ala.1976). The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


text:
    Albert W. JAMES v. STATE.
    3 Div. 532.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Albert W. James, pro se.
    Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

This is an appeal from the denial of a petition for writ of habeas corpus. The petition was directed to and filed in the circuit court of Montgomery County. In the petition, the petitioner alleges that he “is presently confined in the Staton Correctional Center Annex” which, we know by judicial knowledge, is in Elmore County. “When a person is confined in the penitentiary, the petition for writ of habeas corpus must be addressed to the nearest circuit judge.” Ex parte Goodwin, 283 Ala. 61, 63, 214 So.2d 415 (1968); State v. Biggs, 19 Ala.App. 160, 95 So. 908 (1923); Alabama Code 1975, Section 15-21-6.

The petitioner’s request for appointment of counsel is denied. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Kenneth Darcell QUINCE, Appellant, v. STATE of Florida, Appellee.
    No. 59954.
    Supreme Court of Florida.
    March 4, 1982.
    Rehearing Denied May 27, 1982.

      James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender of the Seventh Judicial Circuit, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is a direct appeal from conviction of felony-murder in the first degree and burglary predicated on guilty pleas, and a sentence of death imposed by the trial court alone due to defendant’s waiver of a sentencing jury. Art. V, § 3(b)(1), Fla.Const. Our sole task is to review the propriety of the death sentence.

In December of 1979, the body of an eighty-two year old woman dressed in a bloodstained nightgown was found lying on the floor of her bedroom. She had bruises on her forearm and under her ear, a small abrasion on her pelvis, and lacerations on her head, which were severe enough to cause death. She was sexually assaulted while alive, but the medical examiner could not determine whether the victim was conscious or unconscious during the battery. Strangulation was the cause of death.

Based upon a fingerprint identification, appellant was arrested. Although he initially denied knowledge of the incident, he later confessed to the burglary. He also admitted to stepping on the victim’s stomach before leaving her house. A month later, when faced with laboratory test re-suits, he admitted that he sexually assaulted the deceased. The grand jury returned an indictment charging the appellant with first-degree murder, burglary, and sexual battery.

Pursuant to plea negotiations, appellant waived the right to a sentencing jury. After hearing and weighing the evidence, the trial judge imposed the death sentence, finding the existence of three aggravating circumstances: 1) the murder was committed during the commission of a rape; 2) the murder was committed for pecuniary gain; and 3) the murder was heinous. He considered and rejected all but one mitigating factor: appellant’s inability to appreciate the criminality of his conduct. Due to the conflicting evidence, however, he decided that this factor deserved little weight.

We address first appellant’s most forceful argument, in which he asserts that the trial judge erred in giving only little weight to the sole mitigating factor found, substantial impairment of capacity to appreciate the criminality of his act or to conform his conduct to the law. The trial judge noted in his sentencing order, and the record supports, that although the experts agreed that Quince was not of normal intelligence, the exact degree of mental impairment could not be conclusively established. Four of the five experts that examined Quince found his mental condition did not warrant application of mitigating factors concerned with mental capacity. The fifth expert found Quince lacked the ability to appreciate the criminality of his acts, and compared his mental abilities to those of an eleven-year old. But age equivalency as an expression of Quince’s mental ability was sharply questioned by one expert, and essentially rejected by another. The consensus seems to have been that Quince was of dull normal or borderline intelligence, but was not mentally retarded. No expert had found Quince incompetent to stand trial.

We are well aware that a defendant may be competent to stand trial, yet nevertheless receive the benefit of the mitigating factors involving diminished mental capacity. See Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981). But we do not interpret Mines to require any more from a trial judge than that he give due consideration and weight to these factors in his sentence. Here the trial judge recognized the “substantial impairment” mitigating factor, but found that it did not outweigh the three aggravating factors.

This is not a case in which a jury has rendered a recommendation of life based on evidence of mental incapacity and the trial judge has rejected such a recommendation. See, e.g., Neary v. State, 384 So.2d 881 (Fla.1980); Shue v. State, 366 So.2d 387 (Fla.1978); Jones v. State, 332 So.2d 615 (Fla.1976). All of these cases are based on the rationale that the jury’s recommendation can only be rejected for a compelling reason, because the jury represents “the conscience and mores of the community in which the crimes were committed.” Jones, 332 So.2d at 622 (Sundberg, J., concurring). This is not a ease in which the trial judge failed entirely to take the defendant’s mental condition into account. See Mines. The trial judge demonstrated in his sentencing order his close consideration of this very factor. Nor is this a case in which the trial judge considered matters he should not have.

Rather, this is a case in which the appellant disagrees with the weight that the trial judge accorded the mitigating factor. But mere disagreement with the force to be given such evidence is an insufficient basis for challenging a sentence. See Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Neither of our sentence review functions, it will be noted, involves weighing or reevaluating the evidence adduced to establish aggravating and mitigating circumstances. Our sole concern on eviden-tiary matters is to determine whether there was sufficient competent evidence in the record from which the judge and jury could properly find the presence of appropriate aggravating or mitigating circumstances. If the findings of aggravating and mitigating circumstances are so supported, if the jury’s recommendation was not unreasonably rejected, and if the death sentence is not disproportionate to others properly sustainable under the statute, the trial court’s sentence must be sustained even though, had we been triers and weighers of fact, we might have reached a different result in an independent evaluation.

Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.1981), cert. denied,-U.S.-, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981) (footnote omitted). The trial judge was not unreasonable in failing to give great weight to this mitigating factor, which he nevertheless did find to exist, in the light of contradictory evidence. The trial judge clearly did not ignore every aspect of the medical testimony as the judge did in Huckaby v. State, 343 So.2d 291 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977).

Appellant further assails the sentence on sundry grounds. He claims the murder was not heinous. We believe that the severe beating, wounding, raping, and manual strangulation of an eighty-two year old, frail woman easily qualified as heinous. Cf. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981) (beating, rape and strangulation of sixty-five year old woman is heinous). He next asserts that the underlying felony of sexual battery may not be used in aggravation. Florida’s death penalty statute clearly allows the use of the underlying felony in aggravation, and that statute is constitutional. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Appellant contends that there was an improper doubling of aggravating circumstances when the judge found that the homicide was committed during a rape and was committed for pecuniary gain, and then used these facts as parts of his heinous finding. But doubling has been disallowed when the underlying felony is robbery or burglary and is considered in addition to the aggravating factor of “committed for pecuniary gain.” See Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Appellant argues an improper consideration of nonstatutory aggravating factors when evidence was given concerning likelihood of rehabilitation and lack of remorse. But neither of these factors were considered in aggravation by the judge in his sentencing order and were accorded no weight in the sentencing process.

Quince complains that certain additional factors should have been found in mitigation. He posits that because his record of past offenses is a juvenile record and too remote, he should have been found to have no significant prior criminal history. This Court has allowed juvenile records to dispel this mitigating circumstance when the circumstances warrant. See Brooker v. State, 397 So.2d 910 (Fla.1981). These juvenile offenses were not trivial, and included armed robbery and burglary. Quince pleads that his age of twenty years is a mitigating factor. Yet, as we stated in Peek v. State, there is no per se rule that pinpoints an age as a mitigating factor. Id. at 498. Peek in fact upheld the rejection of the age of nineteen as a mitigating factor. Nor does the record support appellant’s claim that the trial judge limited his consideration to only statutory mitigating circumstances.

Quince finally assails the formalities of the sentencing procedure. He complains that the state was permitted two closing arguments in violation of Florida Rule of Criminal Procedure 3.780(c). The record establishes, however, that both sides had an equal opportunity for argument. The appellant did not make a definite objection to the allowance of two arguments for both sides, and therefore waived this error. See Clark v. State, 363 So.2d 331 (Fla.1978); State v. Jones, 204 So.2d 515 (Fla.1967).

Quince’s final argument is that a general sentence was improperly imposed on him for two separate offenses, violating the dictates of Dorfman v. State, 351 So.2d 954 (Fla.1977). General sentences are also prohibited by statute. § 775.021(4), Fla. Stat. (1979). Although appellant is technically quite correct in asserting the trial judge was in error in imposing such a general sentence, and we must disapprove the practice, we cannot say that Quince’s sentence is similar to that involved in Dorf-man. The death sentence Quince received could only have been imposed for the murder he committed, not for the burglary. If we had vacated the murder conviction, the death sentence would necessarily have fallen. Thus, we face none of the “inscrutability” created by the general sentence in Dorf-man. Id. at 957. Second, since death is deemed the proper penalty, concerns that a general sentence interferes with the rehabilitative process are moot. See Dorfman, 351 So.2d at 955 n. 7. We fail to see the harm caused to appellant by this error since he stands only to lose on resentencing, in light of our approval of the death penalty.

Although each murder conviction and death sentence presents amazingly unique circumstances, we find that death is the justifiable punishment in light of the existence of three aggravating factors and one mitigating factor, and that such a heavy penalty is proportionate to those meted out in similar cases. See, e.g., Brooker v. State; McCrae v. State, 395 So.2d 1145 (Fla.1980); Peek v. State.

Accordingly, the sentence of death is approved.

It is so ordered.

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

      . The sexual battery charge was later dismissed because it was the underlying felony to the felony-murder offense.

      . § 921.141(6)(f), Fla.Stat. (1979).

      . Huckaby v. State also differs from the present case because the capital crime was rape of a child, for which imposition of death has since been declared unconstitutional. Buford v. State, 403 So.2d 943 (Fla.1981). There was also overwhelming evidence of defendant’s mental illness in Huckaby.

      . The appellant confessed both to the burglary and rape of the victim, and could hardly contest that these factors did not exist beyond a reasonable doubt.

      . “Both the state and the defendant will be given an equal opportunity for argument, each being allowed one argument. The state will present argument first.”


author: OVERTON, Judge.

text:
    Virginia WEST, Petitioner, v. Richard B. WEST, Respondent.
    No. 57305.
    Supreme Court of Florida.
    April 29, 1982.
    Richard H. Langley, Clermont, for petitioner.
    Arthur E. Roberts, Groveland, for respondent.
    Elizabeth S. Baker, Miami, for Legal Services of Greater Miami, Inc.
    Patricia Ireland, Miami, and Julia Dawson, North Miami, for Nat. Organization for Women in Florida and Florida Now.
    Judith Bass, Miami, for Florida Ass’n of Women Lawyers.
    Frances M. Farina, Miami Shores, for Florida Women’s Political Caucus.
    Roberta Fox of Gold & Fox, Coral Gables, H. Jack Klingensmith of Kuvin, Klingen-smith & Lewis, South Miami, and Spencer Fox, Miami, for Cassandra Newby.
    Bruce Rogow, Fort Lauderdale, for American Civil Liberties Union Foundation of Florida.
    H. Jack Klingensmith of Kuvin, Klingen-smith and Lewis, and Spencer Fox, Miami, for Dade County Advocate for Victims, Miami, and Forum, University of Miami, School of Law, Coral Gables, on brief for amicus curiae.
   OVERTON, Judge.

Petitioner, Virginia West, sued her former husband, Richard B. West, alleging that during their marriage the husband intentionally injured her by throwing her to the floor, causing a triple fracture of her left ankle. The trial court dismissed the complaint for failure to state a cause of action on the ground of interspousal tort immunity. She appealed to the Second District Court of Appeal which affirmed the trial court’s dismissal and certified to us, pursuant to article V, section 3(b)(3), Florida Constitution (1972), the following question:

WHETHER A FORMER SPOUSE CAN MAINTAIN AN ACTION IN TORT AGAINST THE OTHER SPOUSE FOR AN INTENTIONAL TORT ALLEGEDLY COMMITTED DURING MARRIAGE WHERE SUCH MARRIAGE HAS SINCE BEEN DISSOLVED BY DIVORCE.

West v. West, 372 So.2d 170, 172 (Fla. 2d DCA 1979).

In Hill v. Hill, 415 So.2d 20 (Fla. 1982), we have answered the question in the negative. However, we emphasized that, where an intentional tort has occurred, the trial court in a subsequent dissolution proceeding has the authority

to direct the offending spouse to pay the necessary medical expenses not covered by insurance and the . . . authority to consider any permanent injury, disfigurement, or loss of earning capacity caused by an intentional tort in establishing appropriate alimony under section 61.08, [Florida Statutes 1979] particularly that provision which provides “the court may consider any other factor necessary to do equity and justice between the parties.”

Hill v. Hill, at 24.

We note that in the instant proceeding the parties were married in 1976. The incident occurred in 1977, and the marriage was dissolved in 1978. The trial judge in the dissolution proceeding retained jurisdiction to award permanent alimony “in the event that modification is necessary in the future case of any disability the wife may have that is directly related to the injuries she sustained during her marriage to the Husband.” The trial judge in the dissolution proceeding further directed the husband to pay all doctor, medical, and hospital bills, not otherwise covered by insurance, which resulted from the husband’s tortious injury to the wife.

The trial court in the dissolution proceeding has properly complied with our decision in Hill v. Hill. Accordingly, the instant decision of the Second District Court of Appeal is approved.

It is so ordered.

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

SUNDBERG, C. J., and ADKINS, J., dissent.


text:
    Willa Mae ROBERTS, Petitioner, v. Michael W. ROBERTS, Respondent.
    No. 59240.
    Supreme Court of Florida.
    April 29, 1982.

      Gerald A. McGill of Wells, Brown & Brady, Pensacola, for petitioner.
    Harry Lewis Michaels, Tallahassee, for respondent.
   OVERTON, Judge.

Petitioner, Willa Mae Roberts, sued Michael W. Roberts as personal representative of her deceased husband’s estate, alleging that during their marriage the decedent husband intentionally injured her. The trial court granted a summary judgment in favor of the estate on the basis of inter-spousal immunity. The First District Court of Appeal, in its decision reported at 382 So.2d 376, affirmed the summary judgment and certified pursuant to article V, section 3(b)(4), Florida Constitution, the following question as one of great public importance:

DOES THE DOCTRINE OF INTER-SPOUSAL IMMUNITY BAR SUIT BY ONE FORMER SPOUSE AGAINST A DECEASED SPOUSE’S ESTATE WHEN AN INTENTIONAL TORT ALLEGEDLY WAS COMMITTED DURING THE MARRIAGE WHICH NOW HAS BEEN TERMINATED BY THE ALLEGED TORTFEASOR SPOUSE’S DEATH?

We refused to modify the interspousal immunity doctrine in Hill v. Hill, 415 So.2d 20 (Fla.1982), to allow intentional interspousal tort claims because the doctrine is necessary to protect family unity and resources.

To allow a tort claim against the decedent spouse’s estate would only add a unique factor to probate of an estate which would not be allowable if the decedent party were living. This could adversely affect dependent family beneficiaries, particularly minor children.

We reject modification of the interspousal immunity doctrine in this circumstance, answer the question in the affirmative, and approve the district court of appeal decision.

It is so ordered.

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

SUNDBERG, C. J., and ADKINS, J, dissent.


text:
    Ricou BROWNING, Jr., Appellant, v. STATE of Florida, Appellee. Steven Michael BARBER, Appellant, v. STATE of Florida, Appellee.
    Nos. 58498, 58924.
    Supreme Court of Florida.
    May 6, 1982.
    Rex Ryland, Jr. of the Law Offices of Rex Ryland, Jr., Coconut Grove, for Ricou Browning, Jr.
    Larry G. Turner of the Law Offices of Larry G. Turner, Gainesville, for Steven Michael Barber.
    Jim Smith, Atty. Gen., Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. State v. Yu, 400 So.2d 762 (Fla.1981); State v. Benitez, 395 So.2d 514 (Fla.1981). See also State v. Leicht, 402 So.2d 1153 (Fla.1981); State v. Werner, 402 So.2d 386 (Fla.1981).

It is so ordered.

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


author: PER CURIAM. ALDERMAN, Judge,

text:
    THE FLORIDA BAR, Complainant, v. Donald F. LEGGETT, Respondent.
    No. 60169.
    Supreme Court of Florida.
    May 6, 1982.
    John F. Harkness, Jr., Executive Director, John A. Weiss, Bar Counsel, and Stanley A. Spring, Staff Counsel, Tallahassee, and C. Wayne Alford, Chairman, Fourth Judicial Circuit Grievance Committee “B”, Jacksonville, of The Florida Bar, for complainant.
    No appearance for respondent.
   PER CURIAM.

Disciplinary proceedings were instituted against Donald F. Leggett as a result of complaints by his client and a fellow member of the bar. This Court appointed a referee who was directed to hold hearings and to take testimony necessary to establish the facts and to report his findings and recommendations to the Court. This cause is now before us on the referee’s report and The Florida Bar’s petition for review.

The referee made the following findings of fact. Respondent Leggett represented a lessee in a dispute over the lease. It was agreed among the parties that rent monies due would be placed in a trust account by Mr. Leggett pending the outcome of the litigation. Mr. Leggett was given $11,648 by his client for this purpose, representing rentals that had accrued prior to this agreement. Leggett deposited $11,000 in a separate account, but converted $648 to his own use. He also failed to designate the bank account as a trust account.

Leggett’s client continued to send him monthly checks of $1,456, the rental amount, to be deposited in the special account. Leggett failed to deposit six of those checks, although he did not convert them to his own use. The checks were found in Leggett’s possession at the time of the bar’s investigation.

The referee found these violations:

1. The conversion of $648 was in violation of article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar and Disciplinary Rule 9-102(A) of the Code of Professional Responsibility.

2. Failure to designate the bank account as a trust account was a violation of article XI, Rule 11.02(4)(a) of the Integration Rule of The Florida Bar.

3. Failure to deposit the six checks violated Rules 11.02(4) and 9-102(A).

Based on these findings, the referee recommended these disciplinary actions:

1. An eighteen-month suspension from the practice of law, and thereafter until such time as respondent demonstrates (in accordance with article XI, Rule 11.11 of the Integration Rule of The Florida Bar) that he is entitled to be reinstated in the practice of law.

2. That respondent be required to pay $1116.06, which represents $648 plus interest thereon and interest lost because respondent failed to deposit the checks in the account.

3. Payment of the cost of the disciplinary proceeding in the amount of $510.88.

The Florida Bar brought a petition for review of the referee’s report, seeking to have the eighteen-month suspension changed to disbarment from the practice of law. The bar bases its argument on two grounds: Leggett’s record of prior disciplinary difficulties, and the absence of mitigating circumstances.

Leggett’s prior disciplinary troubles are a matter of public record. At 395 So.2d 550 (Fla.1981), this Court publicly reprimanded him for neglect of legal matters and placed him on two years probation.

We cannot agree, however, with the bar’s assertion that there are no mitigating circumstances. While the conversion of any funds, no matter how small the amount, is “one of the most serious offenses a lawyer can commit,” Florida Bar v. Leopold, 399 So.2d 978, 979 (Fla.1981), we find some mitigation in the fact that the bulk of the client’s funds were deposited and left in a special account. We also note that Leggett admitted his role in this matter in response to the bar’s investigation, and surrendered the six undeposited checks upon demand. Leggett also argues mitigation from the fact that the failure to deposit the checks occurred while he was relocating his practice to another city, but we are not inclined to give much weight to such a factor. The practitioner is expected to see to his clients’ affairs even when disruptive external forces interfere.

For the above reasons, we affirm the referee’s findings of fact and recommendations for disciplinary action. Respondent Leggett is suspended from the practice of law for eighteen months, beginning thirty days from the date of this order. He is further ordered to pay $1116.06, plus legal interest thereon from the date of the referee’s report, in restitution to his client, and to pay $510.88 for costs of this disciplinary proceeding.

It is so ordered.

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

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

ALDERMAN, Judge,

dissenting.

I dissent to this Court’s imposition of only an eighteen months’ suspension. The Florida Bar requests that Leggett be disbarred, and I agree with the Bar that Leggett’s misconduct of stealing from his client warrants disbarment. Misappropriating a client’s funds is one of the most serious offenses a lawyer can commit. I disagree with the majority’s finding as a mitigating factor that Leggett did not steal all of the client’s funds available to him. Stealing is stealing, and Leggett should be disbarred.

SUNDBERG, C. J., and EHRLICH, J., concur.


author: BOYD, Justice.

text:
    Paul Mark RYAN, etc., Petitioner, v. TOWN OF MANALAPAN, etc., et al., Respondents.
    No. 60335.
    Supreme Court of Florida.
    May 6, 1982.

      C. Robert Burns of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for petitioner.
    James McC. Wearn of the Law Offices of James McCartney Wearn, West Palm Beach, and Charles F. Schoech, County Atty. and Clifford I. Hertz, Asst. County Atty., West Palm Beach, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal, Ryan v. Town of Manalapan, 393 So.2d 633 (Fla. 4th DCA 1981). The district court of appeal certified that its decision passed upon a question of great public importance. Therefore we have jurisdiction to entertain the petition for review. Art. V, § 3(b)(4), Fla.Const. We approve the decision of the district court of appeal.

Petitioner Paul Mark Ryan is the owner, as trustee, of several contiguous oceanfront lots bounded by the Atlantic Ocean to the east and Lake Worth to the west. The strip of land comprises 1044 feet of ocean frontage. Immediately to the north of Ryan’s lots is respondent Roy Talmo’s lot with the same east and west boundaries and 300 feet of ocean frontage. The deed to petitioner’s property contains restrictive covenants limiting the use of the land to single-family dwellings constructed on lots with a minimum of 150 feet of ocean frontage and extending westerly to the lake. After these covenants were established, the lot now owned by Taimo was conveyed subject to the same restrictions.

The Town of Manalapan has a comprehensive zoning plan, and its regulations impose the same restrictions on the land in question as are imposed by the covenants. However, in May, 1978, Roy Taimo, Palm Beach County, and the Town of Manalapan entered into a written agreement which contemplates allowing Taimo to proceed with a development plan for his lot. The agreement provides that the County would relinquish “dedicatory rights” to part of Talmo’s lot in exchange for the sum of $70,000, half to be paid by Taimo and half by the Town; Taimo would grant the County a ten-foot-wide easement at the north line of his lot for pedestrian access to the ocean; the Town would re-zone Talmo’s lot to permit the eastern half of the north 230 feet to be used for multi-unit housing and the south 70 feet to be used for a single-unit dwelling with 70 feet of ocean frontage; and Taimo would grant the western half of the north 230 feet of his lot to the Town to be used for a town hall, fire or police station, or other municipal use.

Petitioner Ryan brought this declaratory judgment action to obtain a judicial determination of the effect of this agreement on his rights with relation to Taimo, the Town, and the County. He asserted that the land that is the subject of the agreement is encumbered by restrictive covenants and that if the agreement is put into effect the covenants would be violated in various ways. The covenants would be violated, he alleged, by the use of the north 10 feet of the lot for pedestrian access rather than as part of a single-family residential lot; by the use of the eastern half of the north 230 feet of the lot for multi-unit housing rather than for single-unit residential lots with a minimum of 150 feet of frontage and extending from ocean to lake; by the use of the south 70 feet of the lot without observing the 150-foot minimum frontage requirement; and by the use of the western portion of the north 230 feet of the lot for municipal purposes.

The defendants moved to dismiss the complaint arguing that Talmo’s lot is not subject to the restrictive covenants referred to in the complaint. The Town and the County moved for dismissal as to them on the ground that restrictive covenants in deeds are not enforceable against governmental bodies that acquire land for public purposes. The trial court granted the motions to dismiss of the Town and the County, and petitioner appealed.

On appeal, the district court affirmed and certified the question, saying the following:

As stated earlier in this opinion, the sole issue before us is whether a public body which acquires an interest in lands by means other than eminent domain is bound by private restrictions governing the use of the land. Although Board of Public Instruction v. Town of Bay Harbor L, supra [81 So.2d 637 (Fla.1955)] involved land acquired by eminent domain, we see no distinction when the land is acquired by agreement or purchase. In either case the restrictive covenants do not “constitute property in those in whose favor such restrictions exist for which compensation must be made .... ” Id. at 639, and thus, the covenants are not enforceable against the public body. Accordingly, the trial court correctly dismissed the suit as to the public bodies and his orders should be affirmed.
Nevertheless, we consider the difference between acquisition by eminent domain and acquisition by agreement or purchase to warrant consideration of this question by the Supreme Court, and we therefore certify to the Supreme Court the following question as one of great public importance:
DO RESTRICTIVE COVENANTS AFFECTING THE USAGE OF LAND APPLY TO A PUBLIC BODY WHICH ACQUIRES THE LAND BY PURCHASE AS OPPOSED TO ACQUISITION BY EMINENT DOMAIN?

393 So.2d at 635.

The district court was incorrect in saying that the case of Board of Public Instruction v. Town of Bay Harbor Island, 81 So.2d 637 (Fla.1955), involved land acquired by eminent domain, although the Court there did discuss eminent domain at length. The case was an appeal from a trial court decree (1) requiring a school district to perform a contract to purchase land and (2) permanently enjoining it from building a school on the land in violation of plat restrictions allowing only for residential use. The appeal did not concern the decree for specific performance but only the question of whether the school district could be enjoined from building the school. The Court concluded that this question consisted of two component issues: (1) whether the subdivision restrictions could be enforced against the school district and (2) whether, if the land were used for a school, the school district would be required to compensate the beneficiaries of the restrictions for the loss in value of their property.

The Court focused its discussion on the second issue, finding that a negative answer would require that the first question also be answered in the negative. The analysis of eminent domain was utilized as follows. The Court reasoned that if a public body may acquire land for public purposes by eminent domain without being required to financially compensate the benefitted neighbors for violation of the restrictions, then it follows that when a public body acquires such burdened land by purchase, the restrictions are not enforceable against the public body.

The Court found there was a split of authority among the jurisdictions on the question of the enforceability of restrictive covenants against public bodies taking land for public use. The Court concluded that the better view was that restrictive covenants are not interests in real property, as are easements, but are mere contractual rights, not compensable when destroyed by exercise of the power of eminent domain. All property owners are charged with notice, the Court reasoned, of the fact that property is held subject to the power of eminent domain. Said the Court, “Were we to recognize a right of compensation in such instances, it would place upon the public an intolerable burden wholly out of proportion to any conceivable benefits to those who might be entitled to compensation.” Id. at 643 (footnote omitted). From this answer to the second question the Court concluded that the plat restrictions could not be enforced against the school district acquiring the land by purchase.

With an accurate understanding of the Bay Harbor Island ease, it can be seen that the district court’s certified question was answered twenty-seven years ago: restrictive covenants are no more enforceable against a governmental body when it acquires land for public purposes by purchase than they are when it does so by eminent domain.

Petitioner argues that this case should not come within the rule that restrictive covenants are unenforceable against governmental bodies and points to the prominent role of private developer Taimo in the proposed nonconforming plan of development. Petitioner relies upon Thompson v. Squibb, 183 So.2d 30 (Fla. 2d DCA 1966). There, the principle of Bay Harbor Island was invoked as a defense to an action for enforcement of a restrictive covenant. Plaintiffs there were the developers of a subdivision which they platted on land they owned. They subjected the land to restrictions allowing residential use only, constructed roads and sold lots. They still owned some of the lots at the time of the lawsuit. The defendant was the purchaser of one of the lots. She was also involved, along with others, in the development of an adjacent subdivision. The defendant cleared a strip of her lot and built a short road across it, creating a way of access connecting the roads in the two subdivisions. The plaintiffs sought and obtained an injunction against the use of the land as a road.

On appeal, the district court first concluded that use of the land as a road was in violation of the restriction. The appellant argued that she could put her land to public-road use in violation of the restriction without giving rise to any right in the neighboring owners to enjoin such use because the benefits of such restrictions are not property rights. She invoked the rule that property subject to restrictive covenants may be taken by eminent domain for public use inconsistent with the covenants. She pointed out to the court that under the law of Florida, such covenants create no property rights in the beneficiaries for which compensation must be paid when the land is taken for public uses which conflict with the restrictions. She argued that since such land may be taken by eminent domain “without liability of the taker to owners of other land for whose benefit the covenants are made, then the owner of such restricted land may make a voluntary conveyance or dedication of the land for a public use, such as a road or highway, without liability for breach of the covenants.” 183 So.2d at 33. The district court of appeal responded:

We cannot follow this rationale. In the Bay Harbor case, cited last, supra, the Supreme Court observed that restrictions on use of land embodied in covenants running with the land convey no interest in the land, are not true easements, “and at best may be relied upon and enforced between the parties thereto and their successors with notice.” We do not perceive that it was the purpose of the Court in that case to eliminate or weaken the obligations of such covenants as between private parties to the covenants and those in privity with them. There is not involved here an assertion by any public body of a right in the property involved. This is a controversy wholly between private parties. The Court, in the Bay Harbor case, pointed out that the Constitution and laws of this state are a part of every contract and that every person is charged with knowledge that any land may be taken by the sovereign for public purposes at any time. However, it would not necessarily follow that a landowner may voluntarily and without at least some substantial prospect that some public authority will exercise the power of eminent domain convey or dedicate his property for a use, public or private, which would violate his covenants.
There is not present in this case a circumstance of the defendant being confronted with the imminence of condemnation proceedings to acquire the portion of the lot involved for a public street or road. On the contrary, the motives for her actions were primarily for her private benefit and that of the adjoining subdivision in which she held an interest. We do not find that there are circumstances in this case which would interfere with the right of the plaintiffs to seek and obtain recognition and enforcement of the covenant involved. The injunctive relief granted appears to have been appropriate under the circumstances to bring about a discontinuance of the violation of the covenants and to assure that the land would not be put to the prohibited use in the future.

Thompson v. Squibb, 183 So.2d 30, 33-34 (Fla. 2d DCA 1966).

The petitioner’s reliance on Thompson is to no avail. As was noted by the court there, the purported “dedication” of land to a public use was completely unilateral. There was no acceptance of the land as a public right of way by any governmental body. There was no governmental participation whatsoever. Here, on the other hand, regardless of whether the arrangement can be regarded as involving a purchase, there is by virtue of the agreement an acquisition of property by a local government for public purposes. It matters not that the proposal for public use may have originated with the private owner’s plan of development.

We therefore conclude that the decision of the district court to affirm the dismissal of the County and the Town from the lawsuit was correct in result. We offer no opinion, however, on any questions pertaining to the legal rights and duties of the remaining parties, since no such questions are presented by the petition for review.

The decision under review is approved.

It is so ordered.

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

       Talmo’s answer to the complaint questioned the applicability of the restrictions to his land. But we must assume their applicability for purposes of our review of the district court’s decision.