author: PER CURIAM. JONES, Justice JONES, Justice.

text:
    Jan Elizabeth DeSTAFNEY, individually and as the mother and custodial parent of Joseph Michael DeStafney v. The UNIVERSITY OF ALABAMA, et al.
    80-431.
    Supreme Court of Alabama.
    Sept. 4, 1981.
    On Rehearing Feb. 5, 1982.
    Second Rehearing Denied May 21, 1982.
    Jack Drake of Drake & Pierce, University, for appellant,
    Paul g Skidmore, University, for appel-]ee University of Alabama and President David Mathews.
    James J. Jenkins, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellee Gabrielle Martinez.
   PER CURIAM.

Affirmed on the authority of Gill v. Sewell, 356 So.2d 1196 (Ala.1978), and Milton v. Espey, 356 So.2d 1201 (Ala.1978).

AFFIRMED.

TORBERT, C. J., and MADDOX and AL-MON, JJ., concur.

EMBRY, BEATTY and ADAMS, JJ., concur in the result.

FAULKNER and JONES, JJ., concur in part and dissent in part.

SHORES, J., not sitting.

JONES, Justice

(concurring in part and dissenting in part):

I concur with the per curiam summary affirmance on the trial court’s order of dismissal with respect to Defendants University of Alabama and Dr. David Mathews. I dissent as to the dismissal of Defendant Gabrielle Martinez on the ground that I do not construe § 14 of our State Constitution as affording immunity from suit to an employee of the State for tortious injury.

FAULKNER, J., concurs.

On Application for Rehearing

JONES, Justice.

Appellant’s brief in support of rehearing contains the following succinct “Statement of the Case”:

“Three-year old Michael DeStafney was placed on a piece of playground equipment at Rose Towers Learning Center by Defendant-Appellee Gabrielle Martinez. Michael fell, severely injuring his jaw. His injuries may be permanent in nature and as he grows older he may be forced to undergo several surgical operations to correct the damage done.
“At the time of his injury Michael was a student at Rose Towers Learning Center, a day care center operated by the University of Alabama at Tuscaloosa. Defendant Martinez was employed as an Aide at the Center.
“Michael’s mother Jan DeStafney filed suit against Gabrielle Martinez, individually, the University of Alabama and David Mathews, as President of the University of Alabama. The trial court granted summary judgment for all Defendants citing Gill v. Sewell, 356 So.2d 1196 ([Ala.] 1980), and Milton v. Espey, 356 So.2d 1201 ([Ala.] 1978).
“On September 4, 1981, this Court affirmed the Circuit Court’s grant of summary judgment per curiam without opinion on the authority of Gill v. Sewell, supra, and Milton v. Espey, supra. Three members of this Court concurred in the opinion, three ‘concurred in the result,’ two concurred as to the University and David Mathews but dissented as to Martinez and one did not sit.”

This Court preliminarily granted rehearing as to the individual defendant, Gabrielle Martinez; withdrew submission; and ordered the case set for oral argument on October 19, 1981.

Upon reconsideration of the briefs and arguments of counsel, we reaffirm our agreement with the trial court’s order granting summary judgment as to the University of Alabama and David Mathews, as President of the University of Alabama. We grant rehearing and reverse and remand as to the defendant Gabrielle Martinez, individually.

Upon further study and re-evaluation of Gill v. Sewell, supra, and Milton v. Espey, supra, we are of the opinion that these cases do not mandate our rejection of the Plaintiffs’ claims for tortious injury against the individual employee of the University of Alabama. We hold, therefore, that the defense of sovereign immunity afforded by Ala.Const. 1901, § 14, to the University of Alabama and its President, Dr. Mathews, does not extend to Gabrielle Martinez as an employee whose alleged tortious act is the basis of the claim.

We must recognize at the outset that our cases have interpreted § 14 as affording absolute immunity to some State officials, as well as to the State itself, and extending a qualified immunity to others. This accords with the majority rule with respect to public officials and employees, even in those states that have no comparable constitutional immunity. See, for example, Procunier v. Navarette, 434 U.S. 555, 561, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1977). No Alabama case, however, has ever held that a State employee may never be sued for simple negligence committed in the line and scope of his or her employment. Indeed, significantly, neither Gill nor Milton so held.

Our review of the cases, keeping in mind that claimants have traditionally sought to circumvent the absolutism of § 14 by naming individual State officials and employees as parties defendant, puts the issue in perspective. As early as 1907 (§ 14, though under a different section number, first appeared in the 1875 State Constitution), this Court in Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907), addressed employee immunity:

“It must stand to reason that no person can commit a wrong upon the property or person of another, and escape liability, upon the theory that he was acting for and in the name of the government which is immune from suit at the instance of one of her subjects.” Elmore, 153 Ala. at 350, 45 So. 66.

The Elmore view was restated in St. Clair County v. Town of Riverside, 272 Ala. 294, 128 So.2d 333 (1961):

“ ‘Nor does the immunity of the state from suit relieve an officer of the state from responsibility when he acts tortiously on the rights of an individual.... An officer who acts illegally is not acting as an officer, but stands in the same light as any other trespasser.’ ” St. Clair County, 272 Ala. at 296, 128 So.2d 333.

Six years later Wallace v. Board of Education of Montgomery, 280 Ala. 635, 197 So.2d 428 (1967), cited with approval the St. Clair County language quoted above.

Then, in Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), where the Plaintiff claimed a right of way through a public park, the Court held the action was barred by § 14 as not falling within any of the four recognized exceptions to § 14:

1. Actions brought to compel State officials to perform their legal duties;
2. Actions brought to enjoin State officials from enforcing an unconstitutional law;
3. Actions to compel State officials to perform ministerial acts; and
4. Actions brought under the Declaratory Judgments Act.

In Aland, where the issue arose in a non-tort context, the Court rejected claimant’s attempt to circumvent § 14 by naming several State officials as parties defendant. The Aland Court quoted with approval the rationale of Southall v. Stricos Corporation, 275 Ala. 156, 153 So.2d 234 (1963), which case held:

“... Section 14 not only prevents a suit against the State, but against its officers and agents in their official capacity, when a result favorable to the plaintiff or complainant would directly affect a contract or property right of the State.” Aland, 287 Ala. at 229.

In summary, our cases, as well as the case law of other State immunity jurisdictions, adhere to the view that the State has an interest such as will prohibit suit against the State official or employee where the action is in effect against the State. A good statement of this rule appears in Ford Motor Company v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945):

“[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.” Ford Motor Co., 323 U.S. at 464, 65 S.Ct. at 350.

Aland left unchanged, however, the tort liability rule of Elmore and St. Clair County. The tort liability rule with respect to public officials and employees, as proposed by the Restatement (Second) of Torts, § 895D, Public Officers (1974), is as follows:

“(1) Except as provided in this Section a public officer is not immune from tort liability.
“(2) A public officer acting within the general scope of his authority is immune from tort liability for an act or omission involving the exercise of a judicial or legislative function.
“(3) A public officer acting within the general scope of his authority is not subject to tort liability for an administrative act or omission if
“(a) he is immune because engaged in the exercise of a discretionary function,
“(b) he is privileged and does not exceed or abuse the privilege, or
“(c) his conduct was not tortious because he was not negligent in the performance of his responsibility.”

Generally speaking, our own case law development accords with the Restatement’s Comment to this Section, which states, in part:

“a. History. The origin of the immunity of public officers and employees is found in that of the king (see § 895A, Comment a), which was extended to protect the servants who were carrying out his commands. The development of the parliamentary system in England gradually substituted the idea that, while the king himself could not be charged with wrongdoing, his ministers were personally responsible when they acted illegally. The rules on immunity from liability in tort that were finally worked out by the common law were essentially a compromise between these two positions.”

We find the holdings and rationale of Milton and Gill consistent with the general rule of our cases, as well as with the overall concept of tort liability expressed in § 895D of the Restatement.

Gill, addressing that aspect of the suit against certain named defendants in their official capacities, states:

“... Such a suit is barred by Section 14 of the Alabama Constitution. Gill fails to bring the suit within the categories recognized in Aland and Unzicker." Gill, 356 So.2d at 1198.

As to the only State officer-defendant sued in his individual capacity, Gill concludes:

“... Section 14 does not necessarily immunize State officers and agents from individual civil liability. [Cites omitted.] “There is no allegation in the complaint that J. C. Locke exceeded the authority given him by statute. The complaint at best alleges that he negligently performed his statutory duty. [Cite omitted.] Acting pursuant to such statutory authority, J. C. Locke acted as the State and the claim is barred by Section 14 of the Constitution.” Gill, 356 So.2d at 1198.

Unquestionably, Gill falls squarely within § 895D(3)(a) of the Restatement.

Milton, released the same date as Gill, likewise upheld the dismissal of those statements of the claim based upon the State employee’s exercise of discretionary functions, but remanded the cause for further proceedings with respect to the tort claim of fraud.

Milton’s rationale is particularly pertinent:

“The issue is whether this is a suit against the State, which is barred by Section 14 of the Constitution of Alabama. Milton states the issue is whether a suit can be maintained against an agent of the University of Alabama, when the University is admittedly constitutionally immune from suit. [Cites omitted.]
“Section 14 of the Constitution not only prevents a suit against the State, but against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the State. [Cites omitted.] The prohibition of Section 14 cannot be circumvented by suing the official or agent individually. [Cites omitted.]
“In determining whether an action against a State officer or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. [Cites omitted.]
“There is no dispute that in employing Milton, Espey was acting in his official capacity as an agent of the University. Milton admits this. Espey was merely the conduit through which the University contracted with Milton. Thus, a suit seeking money damages for breach of contract, although nominally against Es-pey individually, comes within the prohibition of Section 14 as a suit against the State. Milton’s contract was in fact with the University of Alabama. [Cites omitted.]
“Thus, Counts One, Two, Four and Five are barred by Section 14 and summary judgment was appropriately granted as to these counts.
“Count Three which alleges fraud presents an entirely different situation. .. .

“[Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971)] does not purport to list all classes of cases not within the prohibition of Section 14. In Unzicker v. State, 346 So.2d 931 (Ala.1977), this court observed that:

“ ‘While the State itself may not be made a party to such action, it does not necessarily follow that its officers, Ray Bass, Claude Kelley and Governor Wallace, in their respective capacities, are also immune. The essence of plaintiffs’ complaint is that these officers of the State acted fraudulently, in bad faith, beyond their authority, or acted under a mistaken interpretation of the law. Such allegations bring this case within those not protected by Section 14 of the Constitution.’ [Cites omitted.]
Section 14 does not necessarily immunize State officers or agents from individual civil liability. [Cites omitted.]
“The claim asserted in Count Three is fraud, allegedly committed by Espey while acting outside his authority and contrary to the rules and regulations of the University of Alabama. The rules and regulations of the University are not part of the record. What powers and duties Espey had as Director of the Ferguson Center we cannot guess. However, from the record we cannot say that Milton has not raised a material issue of fact or that Espey is entitled to judgment in his favor as a matter of law.” Milton, 356 So.2d at 1202, 1203.

Here, again, the tort concept of the Restatement is fully preserved. Milton’s statement of the claim based upon fraud is not covered by the exceptions listed under § 895D(3); thus, the Restatement’s language, “... a public officer is not immune from tort liability,” is applicable.

In the instant case, then, the dispositive issue is twofold: 1) Is the suit against the individual State employee, in effect, a suit against the State? and 2) Under the allegations of tortious injury, is the employee defendant entitled to substantive immunity because she was engaged in the exercise of a discretionary public function?

Clearly, under the guidelines of Gill and Milton, a claim for personal injury based upon the alleged negligent conduct of a State employee, even when committed in the line and scope of employment, is not within the ambit of § 14’s protection. Such a claim, by virtue of its nature and the relief demanded, in no way seeks to circumvent the prohibition of § 14. Any state interest affected by the suit is far too incidental to supply the requisite nexus for extension of constitutional immunity to the individual employee defendant. This suit, and the legal effects incident thereto, are strictly between the named parties plaintiff and the individual defendant. In no sense can it be said that Gabrielle Martinez is a mere nominal party defendant.

This is not to say, however, that every act or performance of duty by a state official or employee, by virtue of its characterization as negligence, necessarily falls outside the immunity doctrine. Even absent the requisite identity between the State and the state official or employee defendant to invoke absolute immunity, the Restatement’s doctrine of substantive immunity may yet be invoked if the official or employee 1) is engaged in the exercise of a discretionary function; 2) is privileged and does not exceed or abuse the privilege; or 3) is not negligent in the performance of his responsibility.

As the Restatement’s Comment / to § 895D suggests:

“There is no single test [for application by the courts in determining whether the state employee was engaged in exercising a discretionary function or, if he was, how extensively this circumstance should work in his defense]. Attempts to solve the problem by setting forth a precise definition of the term, discretionary function, have been less than helpful. The expression is not only a standard (see Comment d); it is also a legal conclusion whose purport is only somewhat incidentally related to the definitions of the two words composing it. Instead of looking at the dictionary, therefore, the court must weigh numerous factors and make a measured decision, on the basis of that assessment, both (1) whether the particular activity should be characterized as a discretionary function, and (2) whether the officer engaged in that activity should be entitled to a full or limited immunity, a privilege (to act either on the basis of reasonable belief or of the actual facts), or a finding that he was not negligent.”

Comment f then discusses seven separate and several factors which may be helpful in determining what is a discretionary function and its consequences. While each of these factors is worthy of consideration, particularly in deciding the more difficult cases, they serve merely to demonstrate that the averments of the instant claims bring this case within those which are protected neither by Section 14 nor by the broader substantive immunity doctrine of the Restatement. See, also, Comment b, § 895D.

Although we accede to the proposition that, under certain circumstances, public policy considerations afford immunity to entities not otherwise constitutionally protected, under the factual averments of the instant case, we find that no valid public policy will be served by immunizing from liability a public employee whose tortious conduct results in personal injury to another.

We affirm as to the granting of summary judgment on behalf of the University of Alabama and David Mathews, as president of the University of Alabama. We reverse as to the granting of summary judgment on behalf of the individual Defendant Gabrielle Martinez; and we remand the cause for further proceedings consistent with this opinion.

APPLICATION FOR REHEARING OVERRULED IN PART AND GRANTED IN PART; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

FAULKNER, ALMON, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur in the result.

      1. Both the mother and her son are Plaintiffs.

      . Arguably, under appropriate circumstances, these exceptions may now be enlarged to include inverse condemnation (Ex parte Carter, 395 So.2d 65 (Ala.1981)). While Unzicker v. State, 346 So.2d 931 (Ala.1977), may be interpreted as adding yet another, the bad faith conduct addressed in Unzicker falls outside the non-tort context of the exceptions outlined in Aland.

      . For a case applying substantive immunity to a municipality, see Rich v. City of Mobile, 410 So.2d 385 (Ala. 1982).


source: Caselaw Access Project

author: BOWEN, Judge. BOWEN, Judge.

license: Public Domain

text:
    Russell L. COLLIER v. STATE.
    1 Div. 189.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.

      Thomas M. Haas and James M. Byrd, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of marihuana in violation of Alabama Code Section 20-2-70 (1975). Sentence was fifteen years’ imprisonment.

Deputy Norman Pierce of the Baldwin County Sheriff’s Department, while patrolling County Road 4 which runs parallel to the Intracoastal Canal in Gulf Shores, observed an “18-wheeler truck” turn into the driveway at Moesch’s Diesel repair shop. It was approximately 11:30 P.M., Saturday, February 9, 1980.

Sometime later that night Deputy Pierce drove back to Moesch’s Diesel. The truck he had seen earlier was gone. Deputy Pierce then drove to the driveway belonging to Childress and Company, just west of Moesch’s Diesel, to see if he could see “any activity”. He found a chain stretched across the driveway. Deputy Pierce testified that he had been patrolling the area for approximately a year and had never seen a chain blocking the Childress driveway.

Around 3:00 A.M. on February 10, Deputy Pierce drove past the area a third time and observed truck tracks coming out of Childress’s driveway. He noticed that the chain was down. The tracks led down the driveway to the Intracoastal Canal where Pierce saw pieces of burlap scattered on the ground.

Deputy Pierce went back to this site at 9:00 A.M. and found the chain back across the driveway. He contacted Chief Deputy Jim Anderson who met him between 11:30 and 12:00 A.M. Together Pierce and Anderson took the chain down, drove in and saw the imprint of a boat edged into the bank of the canal. Anderson also saw a piece of burlap, a plastic surgeon’s glove and one or two cotton work gloves. Looking east toward Moesch’s Diesel, Pierce and Anderson saw a shrimp boat, The Ricky G. This boat had mud on its bow “that would have matched the imprint in the bank on the canal.” The Ricky G was tied to the slip at Moesch’s Diesel yard. Deputy Pierce testified that he “knew the boat hadn’t been there” the previous night “when I was down there." The yard foreman at Moesch’s Diesel did not know anything about the boat.

Chief Deputy Anderson, Deputy Pierce and the yard foreman boarded the boat and upon lifting the hatch cover discovered numerous bales of marihuana covered in burlap. Anderson and Pierce left the boat and set up surveillance. Deputies Bobby Stewart and Roland Howell were later called to take over surveillance.

Around 8:00 P.M. on February 10, The Ricky G backed out of the slip at Moesch’s Diesel into the canal and traveled approximately two hundred yards west to Chil-dress’s Landing where a ten-wheeler refrigerator truck had backed to the edge of the canal from Childress’s driveway. Chief Deputy Anderson and Deputies Stewart and Howell had positioned themselves fifty to seventy-five yards west of Childress’s Landing in a wooded area. Chief Deputy Anderson testified “we could hear what sounded, to us, like something being pitched up into the truck.” Deputy Howell stated that he could see a light on the boat and “occasionally, I could see a figure or an outline of some persons moving.” He could also hear “the sound of people throwing bales of marijuana into a truck.”

After approximately thirty minutes of loading, The Ricky G proceeded west in the canal toward Mobile Bay. The refrigerator truck also attempted to leave, but moved only fifty to one hundred feet away from the canal before being stopped. Chief Deputy Anderson stated that when his group, which had been stationed in the woods, identified themselves as police officers, “everybody scattered”. The persons in the truck fled the scene but were later arrested. The Ricky G, which had also been stopped, was escorted back to the scene at Chil-dress’s Landing and two or three persons were arrested aboard ship.

After the capture of the truck and the boat, the defendant was discovered clinging to the bank of the canal, up to his shoulders in water, approximately ten or twelve feet off the bow of The Ricky G. Deputy Howell pulled the defendant out of the water: “(W)hen we first pulled him out of the water, I placed him under arrest and read him his rights.” From all accounts the defendant was so cold he could not talk or stand up. He did indicate that he understood his rights by shaking his head. Deputy Nunley stated that the defendant was “near dead” when he was pulled from the water. There was testimony that the temperature at that time was between eighteen and twenty-three degrees. The defendant was immediately placed in a patrol car “to warm him up” and taken to “the fire station where the paramedics could give him some medical attention.”

Deputy Stewart testified that after the defendant had been helped from the water no one else was found around the truck: “(W)e checked to see that there was nobody else around the truck. And I went to the rear of the truck, and on the ledge, all the way across the back of it, was quite a bit of loose marijuana seed and residue. The truck was locked.” Deputy Stewart then stated that “(w)e got a jack handle and pried the lock off and opened it.” Over two hundred bales of marihuana weighing over 7,000 pounds were found inside the truck. There were no bales of marihuana found on The Ricky G at this time.

Deputy Nunley advised the defendant of his constitutional rights at the fire station. Nunley testified that as the defendant began to “come around” he said “he wanted to talk to us about what had happened, .. . if it would help him any.” Deputy Howell was immediately informed of this fact by radio dispatch and arrived at the fire station between forty-five minutes and one hour after the defendant had initially been pulled from the water.

Deputy Howell testified that the defendant’s condition “was much better” when he saw him at the fire station. Deputy Nun-ley stated that by the time Howell arrived the defendant “was pretty well out of it and beginning to warm up .a little.”

Prior to questioning, Deputy Howell gave the defendant his Miranda warnings and further testified that the defendant was not threatened or intimidated, offered any reward, hope of reward, or promised anything whatsoever before making his statement. When asked what he wanted to talk about the defendant stated that he “just wanted to try and get things cleared up”, and that he had made “a mistake and got caught.” The defendant stated that between seven to ten persons had been involved and that some of those involved were not at the scene. Deputy Howell testified that the defendant told him that some of these people had come over in a cream colored Chevrolet Blazer. The defendant also told Deputy Howell that a rented car was involved, that some of the persons involved were staying in the Holiday Inn and others in the Ramada Inn in Mobile. The defendant told Deputy Howell who owned the boat.

The defendant’s statement was not reduced to writing. After the defendant had made his statement, he was taken to the hospital emergency room where “they” found that everything was normal.

Ms. Deborah Sennett of the Department of Forensic Science identified the plant material she had received from Richard Carter as marihuana. Mr. Carter had collected samples of the marihuana from the refrigerator truck and The Ricky G the night the defendant was arrested. Ms. Sennett stated that each sample she examined and analyzed was marihuana and that each sample contained the active ingredient tetrahydro-cannabinol.

I

The Alabama Controlled Substances Act is constitutional. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Warren v. State, 52 Ala.App. 35, 288 So.2d 817, reversed on other grounds, 292 Ala. 71, 288 So.2d 826 (1973).

II

The defendant specifically alleges that the warrantless searches of The Ricky G and the refrigerator truck were illegal in that the State failed to meet any of the exceptions to the Fourth Amendment warrant requirements. We need not decide that question because at the threshold we are convinced the defendant lacked standing to contest the validity of the search and seizure. This is so because, based on all the facts and circumstances, the defendant did not have any legitimate expectation of privacy from governmental invasion in the areas searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Persons charged with crimes of possession máy only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. Salvucci, supra; Rakas, supra. The burden rests on the defendant to prove not only that a search was illegal, but also that he had a legitimate expectation of privacy in the area searched. Rawlings, supra. “(A) prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure.” Salvucci, 100 S.Ct. at 2551.

The automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 5 L.Ed.2d 697 (1960), was specifically overruled in Salvucci, 100 S.Ct. at 2554. See also Rawlings, supra. The test of standing is found in Salvucci.

“The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation. As we hold today in Rawlings v. Kentucky, post, at 2556, legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest for it does not invariably represent the protected Fourth Amendment interest.”
***** *
“While property ownership is clearly a factor to be considered in determining whether an individual’s Fourth Amendment rights have been violated, see Rakas, supra, 439 U.S., at 144, n. 12 [99 S.Ct., at 431], property rights are neither the beginning nor the end of this Court’s inquiry. In Rakas, this Court held that an illegal search only violates the rights of those who have a ‘legitimate expectation of privacy in the invaded place.’ Rakas, id, at 140 [99 S.Ct., at 430]. See also Mancusi v. DeForte, supra [392 U.S. 364, 88 S.Ct. 816, 19 L.Ed.2d 869].”
******
“As in Rakas, we find that the Jones standard (legitimately on the premises) ‘creates too broad a gauge for measurement of Fourth Amendment rights’ and that we must instead gauge in a ‘conscientious effort to apply the Fourth Amendment’ by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.” Salvucci, 100 S.Ct. at 2552-3.

The Salvucci test for standing is whether the defendant had a legitimate expectation of privacy from governmental invasion in the area searched. Whether he was legitimately on the premises is a relevant but not controlling or determinative factor in deciding one’s expectation of privacy. Lentini v. State, Ala.Cr.App., 406 So.2d 998 (1980). Even had the defendant claimed ownership of the marihuana found in the boat and truck, which he did not, this bare claim would not have entitled him to challenge the search without some showing of his expectation of privacy. Rawlings.

The defendant in this case tried to put as much distance between himself and the criminal activity as possible. Not only did he not claim ownership of the marihuana, he did not claim ownership of either the boat or truck. In his statement the defendant maintained that he had “come over” in a Chevrolet Blazer with other persons involved in the crime. He further told Deputy Howell “who owned the boat” but admitted no more in his statement than he had “made a mistake and got caught.” This falls far short of establishing a legitimate expectation of privacy from governmental invasion of the truck or the boat.

There is no showing contained in the record that the defendant was a crew member of The Ricky G.

Moreover, there is no indication whatsoever that the defendant took any precautions to maintain his privacy, either on the boat or on the truck. Rawlings. The Ricky G was first seen by law enforcement officers tied up in the slip at Moesch’s Diesel. The yard foreman could not explain its presence; “he didn’t know anything about the boat.” For all that appeared the boat was abandoned. No one was on board and the officers had to do nothing more than lift the hatch cover to discover the marihuana. As for the truck, it and the defendant were moving in opposite directions after the marihuana had been unloaded. The defendant did not assert a property or posses-sory interest in the boat or the truck, an interest in the property seized or a legitimate expectation of privacy in the area of the boat searched. McCraney v. State, 381 So.2d 102 (Ala.Cr.App.1980). It cannot be seriously contended, under these facts, that the defendant had any legitimate expectation of privacy in the searched areas. United States v. Coats, 611 F.2d 37 (4th Cir. 1979); United States v. Vicknair, 610 F.2d 372 (5th Cir. 1980); United States v. Egan, 501 F.Supp. 1252 (S.D.N.Y.1980); Cuevas v. State, 151 Ga.App. 605, 260 S.E.2d 737 (1979).

Ill

The defendant alleges that the statement he made to Deputy Howell at the Gulf Shores fire station was involuntary and should not have been admitted into evidence. He argues that due to his physical condition he was incapable of making a knowing waiver of his constitutional rights.

The State presented sufficient evidence to demonstrate that a voluntariness predicate was properly established. The evidence elicited during the voluntariness hearing was conflicting but, we believe, supportive of the trial court’s determination to admit the defendant’s statement into evidence. Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973).

The duty of determining voluntariness of a confession is within the sound discretion of the trial court. Crawford v. State, 377 So.2d 145 (Ala.Cr.App.), affirmed, 377 So.2d 159 (Ala.1979). Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the trial court’s ruling as to voluntariness of a confession need only be supported by substantial evidence and not to a moral certainty. Taylor v. State, 361 So.2d 1189 (Ala.Cr.App.1978); McNair v. State, 50 Ala. App. 465, 280 So.2d 171, cert. denied, 291 Ala. 789, 280 So.2d 177 (1973). A voluntariness predicate laid by the State is sufficient to show prima facie that a confession was made voluntarily. Walker v. State, 269 Ala. 555, 114 So.2d 402 (1959). The trial judge is not required to accept the testimony of the defendant as to the voluntariness of a confession if there is substantial testimony by others sufficient to constitute a predicate for the admission in evidence of the confession. Bradley v. State, 337 So.2d 47 (Ala.Cr.App.1976). Thus, based on all the surrounding facts and circumstances we find no abuse in the trial court’s discretion in admitting the defendant’s statement.

IV

The State’s evidence was sufficient to prove the defendant’s guilt as charged in the indictment beyond any reasonable doubt. Contrary to the defendant’s assertion, the State’s evidence sufficiently proved that the substance seized was marihuana. The testimony of Ms. Deborah Sennett, alone, satisfied that requirement. Ms. Sennett stated that each sample of plant material she examined and analyzed was marihuana, the variety which “is a controlled substance in the State of Alabama.” Ms. Sennett further stated that the marihuana she examined contained the active ingredient tetrahydrocannabinol.

The defendant bases his contention of error on the following question and answer which occurred during Ms. Sennett’s cross examination.

“Q. Can you tell whether or not that you have been shown by Mr. Hendrix, you know, the ones that you were shown by him, whether they came from a mature stock?
“Can you tell that they came from a mature stock of the plant, whatever type of cannabis plant it was? Did it come from the mature stock of that plant? “A. Yes, it did.”

The defendant submits that Ms. Sennett’s response proves that the plant material she examined was not marihuana as defined by statute. We do not find the defendant’s argument persuasive.

Alabama Code Section 20-2-2(15) (1975) defines marihuana as follows:

“All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufactured, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of sterilization.”

“Marijuana” is the older more general term used for “marihuana” as defined in Section 20-2-2(15). Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975). The incriminating ingredient of tetrahydrocan-nabinol, THC, is the chemical the possession of which is condemned by statute. McKenzie v. State, 57 Ala.App. 69, 326 So.2d 135 (1976). Haynes, supra. Ms. Sennett testified in her capacity as an expert that the marihuana introduced into evidence contained tetrahydrocannabinol. Her answer that the marihuana came from mature stock is not the equivalent of being mature stock, and is in no way contradictory to her testimony that the marihuana she examined contained tetrahydrocannabinol. This Court must take the evidence favorable to the prosecution as true, and accord to the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979).

Knowledge of the presence of the prohibited substance may be established by circumstantial evidence, and guilt does not depend upon ownership. Henderson v. State, 347 So.2d 540 (Ala.Cr.App.1977). Guilty knowledge may be proved by the acts or conduct of the accused from which it may be fairly inferred that he knew of the existence of the prohibited substance at the place where it was found. Temple v. State, 366 So.2d 740 (Ala.Cr.App.1978). Where the presence of the accused at the scene is established through both direct and circumstantial evidence, and the evidence of the accused’s knowledge of the presence of the prohibited substance is shown together with other incriminating evidence, then the issue of the accused’s guilt should be submitted to the jury. Henderson, supra. The defendant’s motion in his case to exclude the State’s evidence was properly denied.

V

Defendant’s requested charges number 11,17 and 18 were not hypothesized on a “belief from the evidence” and for that reason alone were properly refused. Thompson v. State, 369 So.2d 50 (Ala.Cr.App.), cert. denied, 369 So.2d 52 (1979); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).

We have carefully considered each issue raised by the defendant. In addition, we have searched the record, as required by law, for prejudicial error affecting the defendant’s substantial rights and have found none. The trial court’s judgment of conviction is due to be affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

On rehearing, the appellant argues that the State has never challenged his standing to contest the constitutionality of the search and seizure. Aware of the case of Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), which has not been cited by the appellant, we have previously considered the argument now advanced by the appellant on rehearing. Neither the arguments in support of the various contentions of the parties at trial nor the reason the trial judge denied the motion to suppress appear in the record. However, from the questions asked the witnesses at the hearing on the motion to suppress, it appears that this issue was raised. If the ruling of the trial court is correct for any reason, it will not be reversed. Harnage v. State, 290 Ala. 142, 274 So.2d 352 (1972); Knox v. State, 365 So.2d 349 (Ala.Cr.App.1978). The application for rehearing is overruled.

OPINION EXTENDED;

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Russell COLLIER. (Re: Russell L. Collier v. State of Alabama).
    80-792.
    Supreme Court of Alabama.
    April 16, 1982.
    Thomas M. Haas and James M. Byrd, Mobile, for petitioner.
    Charles A; Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

The defendant, Russell L. Collier, was indicted and convicted in the Circuit Court of Baldwin County for the unlawful possession of marihuana in violation of Alabama Code 1975, § 20-2-70. The conviction and the sentence of fifteen years’ imprisonment was unanimously affirmed by the Court of Criminal Appeals, 413 So.2d 396. Defendant petitioned for writ of certiorari on the primary basis that the appellate court’s decision of June 30, 1981, was in direct conflict with this Court’s July 17, 1981, decision in Nicaud v. State, ex rel. Hendrix, 401 So.2d 43 (Ala.1981). In that decision, this Court held there was no probable cause to justify the search and seizure of the shrimp boat “Ricky G.” We granted the writ to review the decision of the Court of Criminal Appeals in light of our holding in Nicaud v. State, ex rel. Hendrix, supra.

We have reviewed the opinion of the Court of Criminal Appeals and we affirm the judgment of that court. We think the court correctly held that the defendant lacked standing to contest the validity of the search and seizure.

This case is clearly distinguishable from the Nicaud case, supra. In that case, the Court held that the warrantless search of the shrimp boat “Ricky G” was illegal under the Fourth Amendment to the United States Constitution as made applicable to the states by the 14th Amendment. However, these amendments do not afford protection to persons who have no legitimate expectation of privacy from governmental invasion in the areas searched. United States v. Salvucci, 448 U.S. 82, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), Rakas v. Illinois, 439 U.S. 128, 95 S.Ct. 421, 58 L.Ed.2d 387 (1978). Russell Collier did not possess the requisite standing to challenge a warrantless search and seizure in that he had no expectation of privacy or proprietary interest in the area searched, i.e. the boat. This is quite different from the defendants in the Nicaud case. In that case two defendants had a proprietary interest and evinced a legitimate expectation of privacy in that two defendants owned the boat. Having satisfied the standing requirements, they were afforded the constitutional protections of the Fourth and 14th Amendments. Russell L. Collier, because of the difference in the facts, is not afforded these protections.

AFFIRMED.

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

      . We reversed the judgment of the trial court as to the third defendant in Nicaud on separate grounds.


author: TYSON, Judge.

text:
    Ex parte Stafford GAMBLE. In re: Stafford Gamble v. State of Alabama.
    6 Div. 840.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.

      Susan W. Graham, Birmingham, for petitioner.
   TYSON, Judge.

Stafford Gamble was charged by indictment with unlawfully killing Veronica Gamble “by stabbing her with a knife.”

At trial the jury returned a verdict of guilty of manslaughter in the first degree and the trial court set sentence at ten years’ imprisonment in the penitentiary.

In order to properly understand the events leading to the verdict and judgment and original dismissal of the appeal in this cause by this court, the following chronology of events is set forth, including the filing of the Petition for Writ of Error in this court.

Time Frame
October 15,1979 Original trial date (“delayed”, appellant did not show).
February 17,1981 Trial began.
February 19,1981 Verdict, judgment and sentence-10 years imprisonment; application for probation. Appellant instructed to appeal within 42 days. (R. 381)
April 3,1981 Probation denied-Oral notice of appeal.
April 28,1981 Written Notice of Appeal, (Circuit Clerk incorrectly stated Judgment rendered on April 3, 1981.)
September 1,1981 New attorney — Graham replaced Newman.
November 23,1981Transcript completed.
December 2,1981 Corrected Notice of Appeal, (Circuit Clerk stated Judgment and sentence were entered on February 19,1981.)
December 3,1981 Appeal dismissed as being late filed in Court of Criminal Appeals. Harris, Tyson, Bookout and Bowen, JJ., concur.
March 16,1982 Petition for Writ of Error filed in Court of Criminal Appeals.

I

The verdict of guilty of manslaughter in the first degree and judgment and sentence of 10 years’ imprisonment occurred on February 19, 1981, at which time the trial court instructed the appellant and his attorney in open court that he had 42 days (from that date) in which to perfect an appeal (if he desired one). (R. 381). Oral notice of appeal was not given in this cause until April 3, 1981, at the probation hearing, when probation was denied. Written notice of appeal was filed on April 28, 1981, and this judgment was corrected on December 2, 1981. Petition for Writ of Error was not filed in the Court of Criminal Appeals until March 16, 1982.

Our action of dismissing the appeal was proper. The first attempted notice of appeal was made 43 days after sentencing. However, that notice was oral and was ineffective because oral notice is effective only at the time of sentencing. Tyson v. State, 361 So.2d 1182 (Ala.Cr.App.1978); Rule 3(a)(2), ARAP.

There was no written notice given until April 28, 1981, which was 68 days after sentencing and clearly beyond the 42 day time limit of Rule 4(b), ARAP.

The probation hearing on April 3, 1981, in no way tolled the time requirements of Rule 4(b), ARAP. Turner v. State, 365 So.2d 335 (Ala.Cr.App.), cert. denied, 365 So.2d 336 (Ala.1978); Woods v. State, 371 So.2d 944 (Ala.1979).

Rule 2(a)(1), ARAP, provides that an untimely filed notice of appeal mandates dismissal because it fails to invoke our jurisdiction. The committee comments to Rule 2, ARAP, (9th paragraph) state that Rule 2 applies to “applications for extraordinary remedies as well as appeals.” The March 16,1982, petition before us now is almost 13 months after sentencing. Therefore, this petition is due to be and is denied.

Rule 2, ARAP, allows this court to suspend the rules in the interests of justice as was done in Tyson, supra. However, this possibility is left to our sound discretion. We see no reason to suspend the rules in this case.

Appellant was represented by an experienced attorney during the trial and through the period during which a timely appeal might have been filed. The fact that his attorney was replaced on September 1, 1981, can have no bearing on this appeal. Furthermore, both the appellant and his attorney were clearly instructed in open court that they had 42 days from February 19, 1981, in which to file an appeal in this court. (R. 381).

The Petition for Writ of Error presents no argument whatsoever with reference the insufficiency of counsel, nor presents any reasons why we should overlook this delay in perfecting this appeal. Rather, the petition in question is an attempt to obtain jurisdiction, after failure to do so with a timely filed appeal.

For the foregoing reasons, the Petition for Writ of Error is hereby denied.

PETITION DENIED.

All the Judges concur.


author: PER CURIAM.

text:
    The FLORIDA BAR. RE PETITION TO AMEND FLORIDA BAR INTEGRATION RULE, ARTICLE XIII.
    No. 61469.
    Supreme Court of Florida.
    April 1, 1982.
    Samuel S. Smith, President, Miami Beach, James C. Rinaman, President-elect, Jacksonville, John F. Harkness, Jr., Executive Director, Stanley A.. Spring, Staff Counsel and Anita F. Dahlquist, UPL Counsel, Tallahassee, and 0. Edgar Williams, Jr., member of the Board of Governors of The Florida Bar, Fort Lauderdale, for The Florida Bar, petitioner.
   PER CURIAM.

The Florida Bar, by its board of governors, has petitioned this Court to amend the Florida Bar Integration Rule, article XIII, to provide that this Court may waive the formal nature of a proceeding to revise or amend integration rules. Notice of the filing of this petition has been published in The Florida Bar News and no responses have been received by this Court concerning the proposal.

With no substantive change but with minor structural modification, the following amendment to Florida Bar Integration Rule, article XIII, is approved:

ARTICLE XIII

AMENDMENTS

Petitions for revision of, or amendments to, this rule will be entertained by the Supreme Court when presented by the Board of Governors or by not less than 25 active members of The Florida Bar. Notice of the filing of the petition shall be published in an issue of The Florida Bar Journal or The Florida Bar News not less than 20 days prior to the hearing of-any-petition and it will proceed as an original proceeding under Florida Appellate Rules 9.030^1(31 and 9.100. Except in an emergency, the Court will not act on the petition within 20 days after the date of the publication. The Court may, upon good cause shown. waive the formal nature of the proceeding under the appellate rules and specify by order an informal procedure to be followed for such consideration including a means for interested parties to participate and be heard.

The petition is granted.

It is so ordered.

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


text:
    Frederick DORNAU, Appellant, v. FLORIDA PAROLE & PROBATION COMMISSION, Appellee.
    No. AD-345.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1982.
    Frederick Dornau, pro se.
    Malcolm S. Greenfield, Gen. Counsel, Tallahassee, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Rehearing denied: 407 So.2d 1108. See the opinion on rehearing in Jacobson v. Florida Parole & Probation Commission, 407 So.2d 611 (Fla. 1st DCA 1981), aff’d on rehearing (December 11, 1981).

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    HARVEY GORDON, INC., a Virginia corporation, Petitioner, v. The Honorable Thomas A. TESTA, as one of the Judges in the 11th Judicial Circuit in and for Dade County, Florida, and Louis Poller, General Partner of Landmark Plaza Associates, Respondents.
    No. 81-1707.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Rehearing Denied May 3, 1982.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Stanley H. Wakshlag and Alan T. Dimond, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for respondents.
    Greenfield & DuVal, North Miami, for Louis Poller, as amicus curiae.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   ON REHEARING

PER CURIAM.

In an action to enforce a foreign judgment, the trial court may not entertain a counterclaim based on perjured testimony in support of the judgment. See, e.g., Haas v. Haas, 59 So.2d 640 (Fla.1952); Fair v. Tampa Electric Co., 158 Fla. 15, 27 So.2d 514 (1946); City of Miami v. Coconut Grove Marine Properties, Inc., 358 So.2d 1151 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 932 (Fla.1979).

We treat the Petition for writ of prohibition as certiorari and grant same on a finding that the action of the trial court constitutes a departure from the essential requirements of the law.

The order under review is quashed and the cause is remanded with instructions that the court not consider the defenses or counterclaim asserted except the defense which challenges the finality of the judgment sought to be enforced.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Steven Paul BACKNER, David S. Burlingame, Edward J. Gasper, Jr., George Francis Moran, Paul Cashman Murphy, Jr., and Louis Roger Rinchack, Appellees.
    No. 81-215.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
    Rehearing Denied May 19, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellant.
    Julian S. Mack, Miami, for appellee Moran, and Charles L. Jaffee, Fort Lauderdale, for appellee Murphy.
   DANAHY, Judge.

The state appeals from an order of the trial court which granted the motions of the appellees to suppress physical evidence. We relinquish jurisdiction and remand for a determination of standing as to appellees Backner, Burlingame, and Rinchack, and affirm as to appellees Gasper, Moran, and Murphy.

This case involves the warrantless search of an airplane. During the search, officers found closed and sealed packages carefully wrapped in opaque plastic in the rear of the plane where the seats had been removed. The officers cut the packages open and discovered that they contained marijuana. As a result of this discovery, the state charged the six appellees with possession of and conspiracy to traffic in marijuana. All six filed motions to suppress the marijuana. Gasper, Moran, and Murphy entered into a stipulation with the state that they had standing to challenge the search. Backner, Burlingame, and Rinchack did not. After a hearing on January 20, 1981, the court granted the motions to suppress.

We relinquish jurisdiction of the cases of appellees Backner, Burlingame, and Rinchack. Before the defendants may challenge a search or seizure as being a violation of their federal and state constitutional rights, they must show that they have standing to do so. These appellees have standing only if they can demonstrate that their legitimate expectation of privacy in the plane searched, or the contents of the packages seized, was invaded by the police officers. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); State v. Hutchinson, 404 So.2d 361 (Fla. 2d DCA 1981). On this appeal, the state has chosen for the first time to challenge these appel-lees’ standing to contest the search and seizure. The issue of standing was not litigated in the trial court. Because that is so, we do not, at this point, rule on the merits of the order as it relates to them. Rather, we relinquish our jurisdiction to the trial court for a determination whether the constitutional rights of appellees Backner, Burlingame, and Rinchack were violated. See Morales v. State, 407 So.2d 321 (Fla. 3d DCA 1981).

The standing of the remaining three appellees was determined by stipulation. Therefore, we may proceed to consider the merits of their challenge to the search and seizure. We hold that the court did not err in suppressing the marijuana. While we believe that the officers had probable cause to search the airplane and that exigent circumstances made the search of the plane without a warrant proper, we nevertheless disapprove the opening of the wrapped packages on the authority and reasoning of Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 61 L.Ed.2d 744 (1981). There the Supreme Court held that although the warrantless search of a vehicle was lawful, a warrant was still required to open packages found in a recessed compartment of the vehicle. Robbins did exempt from this rule a package whose contents can be seen through its covering or whose distinctive configuration “proclaims its contents.” Those exemptions are not applicable here because neither the opaque wrapping nor the packages’ shape or size revealed that they contained marijuana so as to bring them under the “plain view” exception to the warrant requirement of the fourth amendment. Thus, a warrant was required to open the packages.

Accordingly, we affirm the order of suppression as to appellees Gasper, Moran, and Murphy.

We relinquish our jurisdiction as to the cases of appellees Backner, Burlingame, and Rinchack. We remand to the trial court for a period of thirty days with directions that the court make a determination of their standing to challenge the search and seizure. In the event the judge finds that these appellees do not have standing, he will enter an order of such findings together with an order denying appellees’ motion to suppress.

HOBSON, A. C. J., and GRIMES, J., concur.

      . We treat the search of the airplane as one carried out under the “automobile exception” to the warrant requirement of the fourth amendment under the line of cases first decided in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

      . The trial judge, with competent evidence to support him, made that finding and we must interpret the evidence in a manner most favorable to sustain his ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).


text:
    STATE of Florida, Petitioner, v. Patricia Marie RYAN, Respondent.
    No. 81-2325.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Rehearing Denied May 19, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Bennie Lazzara, Jr., Tampa, for respondent.
   PER CURIAM.

We deny the state’s petition for writ of certiorari and adopt the following well-reasoned opinion of the trial court:

Defendant is charged by an information which alleges that she did “knowingly sell, deliver, or bring into this State, or was knowingly in actual or constructive possession of 400 grams or more of cocaine.”
Section 893.135(l)(b), Florida Statutes, provides that “any person who knowingly sells.delivers, or brings into this State, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine” is guilty of trafficking in cocaine.
The Motion in Limine seeks a ruling that the State need not prove Defendant’s intention to or knowledge that she was trafficking in cocaine and that lack of such intention or knowledge may not be a defense. The problem arises from the fact that the evidence will tend to show that her intentions were to traffic in marijuana and her belief was that the contraband would be marijuana instead of cocaine.
If this were a case of simple delivery or possession of a controlled substance under § 893.13, State v. Medlin, 273 So.2d 394 (Fla.1973) would apply and the State would not be required to prove intent or knowledge although absence of either would appear to be a defense for the jury to consider. This ruling comes from the absence in the statute of the requirement of a specific intent or guilty knowledge. The trafficking statute, however, uses the word “knowingly” twice and the information here uses it twice in tracking the statute. Obviously, intent and knowledge are elements that the State must prove and the absence of which can be a defense.
The State, however, contends that the only intent and knowledge required are to traffic in controlled substances and that the specific contraband is immaterial except to set the punishment. Again, if § 893.13 were involved, that argument could better be made because the offense is described in each subsection as being in the actual or constructive possession, etc. of “a controlled substance.” Section 893.135, however, has five subsections each of which names a specific drug which must be possessed, etc., to constitute the offense.
Had the Legislature intended for there to be just one crime with varying penalties according to the drug involved, it could easily have followed the format of § 893.-13. Instead the Legislature chose to create five different offenses, giving each a separate name, e.g. “trafficking in cannabis” or “trafficking in cocaine,” and in addition required that the offense be done “knowingly.”
Because the penalties for trafficking are much more severe than for simple possession or delivery, it is reasonable to assume that the lawmakers wanted to limit the crime to those persons who consciously violate the law. To say that an intent and knowledge to commit trafficking in marijuana will suffice to prove trafficking in cocaine also flies in the face of the fact that a person may believe that marijuana is harmless and no moral wrong is committed in dealing with it although the same person may not be willing to deal in cocaine or morphine or opium or phency-clidine or methaqualone because of a moral belief that these drugs are harmful.
Under § 893.13, which, as has been discussed, does not have a knowledge requirement, the Third District has ruled that a charge of sale of heroin could not be proved by the evidence of a sale of morphine. Jimenez v. State, 231 So.2d 26 (Fla. 3d DCA 1970). Under § 893.-135(l)(b) which does have a knowledge requirement, it would follow that proof of trafficking in cocaine would not support a charge of trafficking in marijuana or vice versa. If the drug must be the one charged it would seem reasonable that the intent must be the one charged as well.

PETITION DENIED.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Herman GILLMAN, Appellant, v. Anne GILLMAN, Appellee.
    No. 80-2227.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Rehearing Denied May 20, 1982.

      David L. Kahn of Kahn & Gustafson, Fort Lauderdale, for appellant.
    Martin I. Lipnack and Richard H. Leven-stein of Schnur & Lipnack, Fort Lauder-dale, for appellee.
   DELL, Judge.

The husband appeals a final judgment of dissolution of marriage, granted by the trial court on petition of the wife, contending the trial court was without jurisdiction. We agree and reverse.

To obtain a dissolution of marriage, the party filing the proceeding must reside in Florida for six months before filing the petition. § 61.021, Fla.Stat. (1971). Evidence as to Florida residence must be corroborated. § 61.052(2), Fla.Stat. (1971). Appellee did not testify to her Florida residence. The only evidence adduced was the testimony of appellee’s sister. Because this evidence of residence was not corroborated as required by Section 61.052(2), Florida Statutes (1971), the trial court was without jurisdiction to enter the judgment of dissolution.

Although this error alone requires reversal, another jurisdictional error requires discussion. Appellee’s sister testified that ap-pellee had been a resident of Florida for one year at the time of the hearing, having moved to Florida from New York in September of 1979. Although this established that the appellee had been a resident of Florida for one year at the time of the hearing, it also established that at the time the petition was filed in January of 1980, appellee had been a Florida resident for not more than four months. The witness’s further testimony as to appellee’s residence was unclear, confusing and did not dispel the effect of her previous testimony.

Section 61.021, Florida Statutes (1971), requires the party filing the proceeding to reside six months in the state before filing the petition. We construe this section to mean the party filing the proceeding must reside in this state for the six months next preceding the filing of the petition. Residence for purposes of dissolution of marriage means an actual presence in Florida coupled with an intention at that time to make Florida the residence. Curran v. Curran, 362 So.2d 1042 (Fla. 4th DCA 1978). Thus, the residence requirement is not satisfied by the mere maintenance of a vacation or other temporary home in this state. Nor does the establishment of six months bona fide Florida residence forever after entitle the petitioner to invoke the jurisdiction of our courts. See Gordon v. Gordon, 369 So.2d 421 (Fla.3d DCA 1979).

The testimony in this case did not tend to prove that actual, continuous presence coupled with the requisite intent existed until September, 1979. Since the petition was filed only four months later, the trial court was without jurisdiction to enter the judgment appealed.

We hold that Section 61.052(2), Florida Statutes (1971), requires that the individual invoking the jurisdiction of the court must testify as to his or her actual presence in the state and the intention to make Florida his or her residence at that time, and that such testimony must be corroborated by other testimony or objective evidence.

Accordingly, the final judgment of dissolution of marriage is reversed.

GLICKSTEIN and HURLEY, JJ., concur.


author: SHARP, Judge. COWART, Judge,

text:
    Leo Jerome BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-754.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 5, 1982.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Leonard R. Ross, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Brown argues, on appeal, that his conviction of burglary should be reversed because it was based solely on his taped confession, which should have been suppressed, and out-of-court identifications of him as a perpetrator of the crime by witnesses who testified at trial that he did not commit the crime. We reverse the conviction because the record shows Brown’s confession was induced by promises of leniency, but we remand this cause for a new trial because we find there was other substantial evidence (admittedly not overwhelming) to sustain the jury’s guilty verdict.

The record shows the officer who arrested Brown testified:

I told him (Brown) I was going to place him under arrest for burglary and also for false imprisonment and for grand theft. But I told him I would like to have a statement pertaining to what I was going to ask him about and that I would only charge him with burglary if he would tell me the truth.

Brown testified he confessed only because the police officer promised to drop the other two charges, and because he was also promised five years probation. The State denied any promises concerning probation were made, but it conceded the offer to drop charges was made to induce Brown’s statement. The State seeks to justify this by analogizing it to a request to an accused to tell the truth, which is not deemed to invalidate a confession. See United States v. Ballard, 586 F.2d 1060 (5th Cir. 1978); Frazier v. State, 107 So.2d 16 (Fla.1958). We cannot draw such a fine distinction. It appears Brown was made an offer he could not refuse: talk and we’ll drop two felony charges. Controlling authorities hold confessions made under these circumstances are not voluntary, and they are therefore inadmissible.

Excluding Brown’s confession, there is no evidence identifying him as one of the perpetrators of the burglary, except out-of-court statements made by the victims of the crime, Mr. and Mrs. Boatman. Mr. Boatman denied Brown committed the burglary, but he admitted he had identified Brown from a group of photographs for police officers; but when told by Brown’s relatives that Brown was in jail when the crime was committed, he signed an affidavit in the prosecutor’s office recanting his prior identification. Mrs. Boatman also identified Brown as one of three or four involved in the crime shortly after it was committed; but on the stand, she denied making the prior identification.

Under the rule stated in State v. Freber, 366 So.2d 426 (Fla.1978), Mr. Boatman’s prior identification of Brown would be admissible as substantive evidence, although Mrs. Boatman’s might not have been because she denied in court ever making the prior identification.

However, under the new “Evidence Code” it apparently makes no difference whether the witness admits or denies or fails to recall making the prior identification. Section 90.801(2), Florida Statutes (1981) states that the following kinds of out-of-court statements are not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is: “(c) one of identification of a person made after perceiving him.” Under a similar provision in the Federal Rules of Evidence, such statements have been admitted as substantive evidence even though the declarant denies at trial ever making this identification and even though the identification was made from a photopack and not “real-life.”

In this ease, there were circumstances the jury could have relied upon in choosing to believe the Boatmans’ earlier identifications of Brown as one of their assailants, rather than their in-court denials. Brown and the Boatmans were long-time residents of the black community in Mims, Florida, a small rural town. Mrs. Boatman denied ever seeing Brown before, but she later admitted seeing him at “the Big House,” the nearby neighborhood bar. Mr. Boatman testified he knew Brown and his brothers since they were young kids, growing up in Mims. He originally gave the police Brown’s name as a possible suspect when reporting the crime. Neither of the Boatmans had any hesitancy or doubt in selecting Brown as one of their assailants, shortly after the crime was committed.

The Boatmans’ identifications changed after a number of Brown’s relatives took Mr. Boatman for a ride in their car, which culminated in his affidavit retracting his identification. At trial Mr. Boatman denied being intimidated by Brown’s brother and other relatives who attended the trial, and apparently had words with the Boatmans prior to their testimony, contrary to the judge’s instructions. Mr. Boatman contradicted himself in his testimony, at times saying he changed his identification of Brown because he was in jail when the crime was committed, and when confronted with the fact Brown was not in jail at the time of the burglary, Boatman claimed he was mistaken.

Under these circumstances, it appears the jury could have believed the prior identifications, despite the in-court doubts and denials. As Judge Friendly said in United States v. DeSisto, 329 F.2d 929, 933 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964), quoting McCormick, Evidence 75-76 (1954):

Manifestly, this is not to say that when a witness changes his story, the first version is invariably true and the later is the product of distorted memory, corruption, false suggestion, intimidation or appeal to sympathy . . . [but] the greater the lapse of time between the event and the trial, the greater the chance of exposure of the witness to each of these influences . . .

We hold that it was error to admit Brown’s confession and we reverse his conviction. Because there was other sufficient evidence to sustain Brown’s conviction, we remand for a new trial.

REVERSED AND REMANDED.

DAUKSCH, C. J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

A promise of leniency if an accused admits guilt, or a threat of harm if he does not, invalidates a resulting admission or confession because of the possibility that the accused may have not told the truth and may have admitted or confessed, not because it was true, but because of the inducement or threat. This reasoning does not apply where the only prerequisite for benefit is that the accused tell the truth. A suggestion of a benefit if the accused tells the truth should not of itself render any resulting statement inadmissible, since the worst that the promise of benefit can invoke is the truth, which does not create a risk of causing a false statement. A rule should not be applied when the reason for the rule does not exist.

The trial judge did not find and I would not infer that the police officer’s words had some sinister, hidden reverse meaning that the accused was being asked (and induced) to admit guilt, even if it meant not telling the truth. To the contrary, the trial judge found that the defendant’s statement was freely and voluntarily made. While the cases cited in the majority opinion are consistent with the majority holding, they do not direct it. Other cases would just as well support a contrary holding. See Williams v. State, 69 So.2d 766 (Fla.1953) (“It’ll make it easier, if you tell me the truth.”), Frazier v. State, 107 So.2d 16 (Fla.1958) (“get right and tell us what you know about this case”), and Paramore v. State, 229 So.2d 855, 858 (Fla.1969), citing Ebert v. State, 140 So.2d 63 (Fla. 2d DCA 1962), for the proposition that a confession of guilt freely and voluntarily made is not rendered inadmissible by the accused being told it would be easier on him if he told the truth.

      . Frazier v. State, 107 So.2d 16 (Fla.1958); Bradley v. State, 356 So.2d 849 (Fla. 4th DCA 1978); Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975); M. D. B. v. State, 311 So.2d 399 (Fla. 4th DCA 1975).

      . U. S. v. Marchand, 564 F.2d 983 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978).

        . U. S. v. Cueto, 611 F.2d 1056 (5th Cir. 1980); U. S. v. Sisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).


author: COBB, Judge.

text:
    IDEAL FOODS, INC., Appellant, v. ACTION LEASING CORPORATION, a Florida corporation, Appellee.
    No. 81-1067.
    District Court of Appeal of Florida, Fifth District.
    April 14, 1982.
    Rehearing Denied May 6, 1982.

      Raymond J. Rotella, of Zinkow, Kosto & Rotella, Orlando, for appellant.
    Richard H. Adams, Jr., and Russell W. Divine of Adams, Fassett & Divine, P. A., Orlando, for appellee.
   COBB, Judge.

The issue in this case is whether Richard Maru, the secretary-treasurer and minority shareholder of the appellant-defendant, Ideal Foods, Inc. (Ideal), had the authority to bind Ideal in certain leases with the plaintiff-appellee, Action Leasing Corporation (ALCO). Because Maru had no such authority, we reverse.

ALCO sued to recover on leases signed by Maru. Ideal defended on the ground that Maru lacked authority to bind it. In order to bind Ideal in this case, Maru must have had either (1) inherent authority, i.e., authority by virtue of his position in the company, or (2) apparent authority, i.e., the authority the principal knowingly permits his agent to assume or which the principal by his actions or words holds out the agent as possessing. Neither as shareholder nor as secretary-treasurer did Maru have the inherent authority to bind Ideal. The secretary of a corporation, merely as such, is a ministerial officer, without authority to transact the business of the corporation upon his volition and judgment. People v. International Steel Corp., 102 Cal.App.2d Supp. 935, 226 P.2d 587 (1951). Similarly, a treasurer has no authority to bind a corporation in dealings with third persons unless expressly or impliedly authorized to do so. 19 C.J.S. Corporations § 1001 (1940). Maru had no inherent authority to bind Ideal; any liability must have been predicated upon principles of apparent authority.

Maru had no such apparent authority. Apparent authority is grounded in es-toppel. Stiles v. Gordon Land Co., 44 So.2d 417 (Fla.1950). Its three primary elements are: (1) representation by the principal, (2) reliance upon that representation by a third person, and (3) a change of position by the third person in reliance upon such representation. Fidelity and Casualty Co. v. D. N. Morrison Construction Co., 116 Fla. 66, 156 So. 385 (1934), appeal dismissed, 293 U.S. 534, 55 S.Ct. 348, 79 L.Ed. 642 (1935); H. S. A., Inc. v. Harris-In-Hollywood, Inc., 285 So.2d 690 (Fla. 4th DCA 1973), cert. dismissed, 290 So.2d 493 (Fla.1974). In the present case, Maru had been working solely at Ideal’s subsidiary for approximately six months before he signed the contracts with ALCO. Additionally, ALCO’s representative knew that Maru no longer ran Ideal. The proof, therefore, does not support a finding of apparent authority.

Because Maru lacked both inherent and apparent authority to bind Ideal contractually, the trial court erred by finding in favor of ALCO. We therefore reverse for entry of judgment in favor of Ideal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Like every other corporate agent, a secretary-treasurer may have more extensive functions then those ordinarily incident to the office. See Van Denburgh v. Tungsten Reef Mines Co., 20 Cal.App.2d 463, 67 P.2d 360 (1937). While Maru had at one time been Ideal’s general manager, he had left Ideal to work at its wholly-owned subsidiary approximately six months before entering into the leases upon which his motion was based.

      . ALCO argues David Sass, who was not even an employee of Ideal, had authority to bind Ideal. Even upon apparent authority grounds this contention is without merit because ALCO’s representative testified that he knew Sass was not an officer of Ideal, and further knew that Sass had no authority to sign anything.

      . Because the issue of ratification was not pleaded below, we do not consider it for the first time on appeal.