text:
    Fannie GRAFFEO v. STATE.
    7 Div. 846.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      Lister Hill Proctor of Proctor & Vaughn, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson and William Dudley Motlow, Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On an appeal from a judgment in each of three cases against this appellant, bearing Circuit Court Numbers 80-419, 80-420, and 80-422, the cases have become consolidated by the parties for our consideration and determination. In CC-80-420, a jury found defendant guilty of selling marijuana to Gabe McCray on May 16, 1980, and she was sentenced to imprisonment for four years. Thereafter, she pleaded guilty in each of the other two cases. In CC-80-419, she was charged with selling marijuana to Gabe McCray on May 12,1980; in CC-80-422, she was charged with the unlawful possession of marijuana. In CC-80-419, defendant was sentenced to imprisonment for four years, with the sentence to “run concurrent” with the sentence in CC-80^420; in CC-80-422, defendant was sentenced to imprisonment for two years, with the sentence to “run concurrent with the sentence and judgment of Cases No. CC-80-419 and CC-80^20.”

Several issues are presented in CC-80-420, which we now consider.

CIRCUIT COURT CASE NO. 80-420

According to the testimony of Gabriel McCray, otherwise known as Gabe McCray, a Birmingham police officer assigned to the United Narcotics Detail Operation, he and his partner Deputy W. B. Carson of the Jefferson County Sheriff’s Department, went to a place of business in Alabaster, Shelby County, Alabama, apparently owned and operated by appellant and her husband, John Graffeo, by the name of Stop and Shop Mini Mart, and purchased three bags of marijuana from the appellant for the sum of thirty dollars. Appellant thereafter categorically denied the transaction and further testified that she had never met Officer McCray. It appears from the evidence that Mr. and Mrs. Graffeo had lived in Shelby County about four months prior to May 1980 and theretofore had lived in Jefferson County for many years. A jury question was presented as to the guilt of defendant, and we see no reasonable basis for any contention to the contrary.

Appellant insists that the trial court denied her right to impeach witness McCray by showing his bias toward the defendant or in favor of the State. She urges that defendant was prevented from doing so during cross-examination of Officer McCray and during the testimony of the defendant. Reference is first made to the following during defendant’s cross-examination of Officer McCray:

“Q. Isn’t it a fact that you refused to
talk about this case in any form with me? “A. I informed- you that it is not customary and it is not our operating procedure to discuss the details of a case with a defense attorney.
“MR. WILLIAMS: Just so the record is clear that is also our instructions through our office.
“MR. LYON: I object to that, a statement by counsel.
“BY THE COURT: I sustain.
“Q. I believe you also stated to me on that day, I believe you, quote, I do my job well, unquote, is that not what you said?
“A. Yes, I did.
“Q. I believe you also said quote, I am a very obedient officer, is that not what you said?
“A. Yes, I mean I follow instructions.
“Q. When someone tells you to do something, you do it?
“MR. HILL: We object, No. 1, it calls for a mental operation, and No. 2, it is totally irrelevant.
“MR. LYON: Cross examination, Judge.
“BY THE COURT: I don’t see the relevancy of it, do you want to tell me where you are going with this?
“MR. LYON: Your Honor, we submit that Mr. McCray is not telling the truth as to Mrs. Graffeo in this charge. I’m trying to find out something from him who he operates from, he says he is an obedient officer, and he says he does things that other people tell him to do. I think someone has gotten him to come into this Court and tell this story to the Jury.
“BY THE COURT: That is enough, I sustain the objection.
“Q. Let me ask you this question, Mr. McCray, if one of your superiors asked you to come into this courtroom to testify that Mrs. Graffeo did sell you marijuana you would so testify?
“A. If it’s the truth, yes, if it’s a lie, no.
“Q. Have you ever been in Court before?
“A. Yes, I have.
“Q. Isn’t it a fact on prior cases in-which you testified, the defendant has been found not guilty?
“MR. WILLIAMS: Object to what other defendants have been found.
“Q. Have you had any financial dealings with any public officials in Shelby County?
“MR. WILLIAMS: Object as to relevancy.
“BY THE COURT: Sustained.”

As to appellant’s asserted denial by the trial court of appellant’s right to show the bias of the principal witness against her, reference is made in appellant’s brief to the following occurrence while she testified on redirect-examination:

“Q. Mrs. Graffeo, would you tell the jury whether or not you have reason why Gabe McCray would come here and accuse you of selling marijuana?
“A. Yes.
“MR. WILLIAMS: Object, mental operation.
“BY THE COURT: Sustained on that form.
“Q. Mrs. Graffeo, do you have a basis of fact that would indicate why Mr. McCray would come into this Courtroom and testify against you?
“A. Yes, sir.
“MR. WILLIAMS: We have the same objection not only to the form, it would call for a mental operation of the defendant or any witness, I couldn’t have asked that of Mr. McCray or any of my witnesses.
“MR. HILL: Further, the State would note Mr. McCray has taken the stand and there subject to cross-examination and if he had any bias against this witness, he spent considerable time under oath and he could have asked at any time about any bias he may have had against this particular defendant.
“MR. LYON: I say that Mr. McCray had a big interest to protect.
“BY THE COURT: Mr. Bailiff, take the Jury to the deliberation room for a moment.
“(OUTSIDE THE PRESENCE OF THE JURY)
“BY THE COURT: Harry, what are you getting at, I mean if you can really show us some bias, I will let you show it, but I am wondering where you are going with this, this blanket question.
“MR. LYON: The Graffeos were approached by some of the State’s events [agents?], $8,000.00, these charges would be dropped, that the agent would not testify as to the identity of Mrs. Graffeo, they were approached after they were charged for this crime.
“BY THE COURT: Who supposedly approached them?
“MR. LYON: Ed Neal.
“BY THE COURT: Who is that?
“MR. LYON: Her bookkeeper acting as an agent.
“BY THE COURT: She is going to testify as to what her bookkeeper was told? I wouldn’t allow that.
“MR. HILL: Why don’t you bring the bookkeeper and let the bookkeeper testify?
“MR. LYON: We would submit your Honor, it wouldn’t be likely that the bookkeeper would admit to it.
“BY THE COURT: For her to say is nothing more than hearsay, Harry.
“MR. HILL: We submit it, it wasn’t the truth put the man on the stand and let him come and tell us.
“BY THE COURT: Is there anything else?
“MR. LYON: Whatever your ruling is I will understand.
“BY THE COURT: If that is what the testimony is attempted to be elicited the Court is going to sustain the objection, is there anything else debatable that we can discuss now.
“MR. LYON: I have no further questions.
“BY THE COURT: Bring the Jury back.”

Defendant’s attorney should have been allowed to show what he was endeavoring to show, if he could have done so by legal evidence. The evidence sought by the testimony of defendant was hearsay and does not come within any exception to the general exclusionary rule as to hearsay evidence. It now appears that at the time defendant’s attorney was cross-examining the chief witness against defendant he could well have been allowed more breadth, but such was not apparent at the time of such cross-examination. Notwithstanding the seriousness of the innuendo involved, the trial court was not in error in its rulings on the subject.

During the redirect examination of the officer who had testified that he purchased the marijuana from the defendant on May 16, 1980, as alleged in the indictment, he was asked the following question: “I will ask you if you ever had the occasion at the Stop and Snack prior to May 16 to have a conversation with Mrs. Graffeo concerning illegal drugs?” The defendant objected to the question, and before the court ruled the jury was asked to retire and a long series of discussions occurred between the district attorney, the defendant’s attorney and the court about the proposed testimony. The defendant made a motion for a mistrial which the court overruled, all out of the presence of the jury. When the jury returned, counsel for the State did not pursue the questions of the witness that he had indicated he desired to ask, which pertained to whether he had a transaction with defendant relative to drugs on May 12, 1980. Appellant says in his brief: “The fact that the Court never ruled [on defendant’s objection to the question asked the witness just before the discussion out of the presence of the jury occurred] was clearly in error because the jury was allowed to hear the question which had no probative value whatsoever other than to show the bad character of the defendant which was not the issue at that time since the defendant had never testified and, furthermore, the Court should have granted the defendant’s motion for a mistrial.” As the particular question to which the objection was made was never answered and was not repeated, the trial court cannot be charged with prejudicial error in failing to rule on the question. The result was the same as if the objection were sustained or the question were expressly withdrawn. True, as argued by appellant, the nature of the question is such that it could have tended to harm the defendant, but it did not merit a mistrial.

During the cross-examination of Officer Carson, defendant’s attorney inquired of him as to his observation of Officer McCray while Officer McCray was going into Stop and Snack in Alabaster on May 16, 1980. The following is the concluding part of such cross-examination:

“Q. I am asking — How do you know that he didn’t have any marijuana in his pockets on that date?
“A. We don’t carry marijuana in our pockets.
“Q. Did you search him, did you check him, did you do that?
“A. I didn’t search—
“Q. I’m just asking you you did not check your partner?
“A. I didn’t check my partner.
“Q. You don’t have any financial dealings with Mr. Gabe McCray?
“A. Any what?
“Q. Financial dealings?
“A. Such as?
“Q. Any financial transactions, money changing hands, between you and him?
“A. I give him our company money to spend a lot of times.
“Q. Anything besides that?
“A. No, I don’t know what you are making reference to.”

On redirect examination of the witness Carson, the following occurred.

“Q. How long have you known Gabe McCray?
“A. About 2 years we worked together.
“Q. Do you, if you know, Gabe McCray to lie under oath?
“MR. LYON: Object.
“MR. WILLIAMS: I will lay the proper predicate. I withdraw the question.
“Q. Do you know Mr. McCray’s reputation in the community for truth and veracity?
“MR. LYON: Object Your Honor, that is still not the proper predicate.
“MR. WILLIAMS: Your Honor, I must lay the proper predicate. He has brought in Mr. McCray’s reputation for truth and veracity, once attached [sic, which we construe as ‘attacked’], I can support it.
“MR. LYON: I submit the proper predicate has not been laid.
“BY THE COURT: You may lay the predicate.
“Q. How long have you known Mr. McCray?
“A. Approximately 2 years.
“Q. I will ask if you had the opportunity to know him in his own community or in his business community?
“A. Both.
“Q. I will ask you if you had the opportunity to hear of his reputation for truth and veracity in either one of those communities.
“MR. LYON: Object, Your Honor. That is not the proper predicate.
“MR. WILLIAMS: just one second, Your Honor. I will read it right out of the book for you.
“BY THE COURT: No, don’t do that, I will make the ruling. I overrule it.
“MR. LYON: We accept [sic, which we construe as ‘except’].
“Q.. Have you had that opportunity?
“A. Not in his community but in our business, yes.
“Q. In your business community?
“A. In our job, yes.
“Q. Restricting your answer to the business community I’ll ask you, whether or not, Mr. Gabe McCray has the reputation if any for truth and veracity?
“MR. LYON: Object to the form.
“BY THE COURT: Overrule. That is a yes or no question.
“A. He has a good reputation.
“Q. Does he have a reputation at all?
“A. Yes.
“Q. What is that reputation?
“A. It is a very good reputation.”

Appellant takes the position that the cross-examination of Officer Carson “did not put Officer McCray’s credibility or character in issue” and therefore the evidence above quoted on redirect examination of Officer Carson was not admissible. However, it is to be noted that there the only grounds of objection to any of the questions asked were as to the “form” of the questions or as to the asserted failure to “lay the proper predicate.” This precludes a reversal by reason of the present contention that defendant “did not put Officer McCray’s credibility or character in issue.” Appellant now takes the additional position that the questions asked the witness Carson on redirect examination did not generalize the reputation inquired about by the adjective “general.” As to this we are in agreement, for it is the “general” reputation only that is admissible. Gamble, McElroy’s Alabama Evidence, § 26.02(4) (1977). However, as to this, it is to be observed that the State was ultimately able to obtain an answer from the witness that Officer McCray had “a very good reputation” by the question, “What is that reputation?,” to which no objection was made. The proceeding as to the admissibility of the evidence is tangled and confusing, but no prejudicial error now presentable is to be found in the rulings of the trial court on the subject.

Another issue raised by appellant pertains to the admission in evidence of State’s Exhibits No. 1, 2, 3 and 4. We have before us a brown envelope, about twelve inches long and ten inches wide, certified by the official court reporter as containing three packets of marijuana, Exhibits 2, 3 and 4. We have not broken the seal to examine the contents. Four witnesses testified as to the contents of State’s Exhibits 1, 2, 3 and 4. Officer McCray testified that he placed each of the three packets of marijuana purchased from defendant and identified as Exhibits 2, 3, and 4, in a brown envelope, which he identified as State’s Exhibit No. 1 and turned them over to Officer Carson. Officer Carson testified that he turned them over to Mr. Gerald Wayne Burrough, a criminalist with the Alabama Department of Forensic Sciences. Mr. Bur-rough testified that he turned State’s Exhibit No. 1 over to Mr. Michael Sparks, a drug chemist with the Alabama Department of Forensic Sciences. Mr. Sparks testified that State’s Exhibits 1, 2, 3 and 4 were in substantially the same condition as they were when delivered to him by Mr. Burrough and that the contents of Exhibits 2, 3 and 4 were examined by him and found to contain marijuana. We are convinced that the chain of possession of the three packets of marijuana was established by the evidence, and that State’s Exhibits No. 1, 2, 3 and 4 were properly admitted in evidence.

Appellant seeks to predicate error upon the following action of the trial court during the direct examination of the defendant:

“Q. Have you or have you not ever been placed on trial in a criminal proceeding until yesterday?
“A. No, sir.
“MR. WILLIAMS: We object to this line of questioning and ask her answer be stricken, we object to the line of questioning, we have not tried to impeach this lady by bringing up any prior alleged crimes or anything like that. The predicate is not there for him to verify her truth and veracity and good criminal record at this point.
“BY THE COURT: I sustain the objection and order her answer stricken from the record, and instruct the Jury to disregard and instruct counsel not to proceed with this line of questioning.”

Appellant’s attorney argues in his brief, “This is in error because if a party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence with other illegal evidence.” The reference is to appellant’s asserted illegal evidence during the redirect examination of Officer McCray, wherein he was asked if he “ever had the occasion .. . prior to May 16 to have a conversation with Mrs. Graffeo concerning illegal drugs.” As we have previously stated, the question was never answered. The incident did not constitute an introduction of “illegal evidence,” which appellant says he had the right to rebut “with other illegal evidence.”

Appellant complains that, after the defendant had testified on direct examination, she “was asked by the State a series of questions concerning conversations and sales of marijuana and other illegal drugs with Officer McCray on May 12, 1980.” The statement is made in appellant’s brief that “The State offered this evidence for impeachment purposes and the defendant objected,” and that the court “overruled the defendant’s objection to this series of questions and allowed the evidence of prior act to go to the jury.” The transcript shows that some of these questions were answered by the defendant before an objection was interposed. The evidence sought by said questions would not have been admissible had the defendant not testified on direct examination as follows:

“Q. Have you ever met or seen prior to yesterday, the man named Gabe McCray?
“A. No, sir.
“Q. Did you ever sell any marijuana to Gabe McCray?
“A. No, sir.”

Affirmative answers to the questions asked the defendant on cross-examination as to defendant’s dealings with Officer McCray would have been in direct contradiction of her testimony on direct examination; the inquiry comes within the range of proper cross-examination of a witness, whether the answer to the inquiry is affirmative or negative. In this instance, it was negative. The court was not in error in overruling defendant’s objections to the questions.

During the cross-examination of the defendant, the following occurred:

“Q. Directing your attention specifically to September 5th, 1980, I will ask you, if you had — •
“MR. LYON: Object Your Honor. May I approach the bench?
“BY THE COURT: No, just state your objections from there.
“MR. LYON: I submit and refer to my prior Motion in Limine and I show the Court this line of questioning is improper based on the statement in the Motion in Limine.
“BY THE COURT: Overruled.
“MR. LYON: We accept [sic, which we construe as except].”

Both parties appear to treat the request of counsel for defendant to approach the bench as made “to make an offer or showing of what counsel expected to prove,” which it was not. The request was for the purpose of making known to the court, out of the presence of the jury, defendant’s ground of objection to an unfinished question. No harm was done the defendant by requiring that defendant’s attorney make known his objection in the presence of the jury, which was to the effect that the grounds therefor were shown in the motion in limine, which the court had previously overruled.

Appellant urges that the trial court unduly restricted defendant’s attorney, in his efforts after defendant had testified, to show by three witnesses for the defendant that defendant had a good general reputation for truth and veracity. One of the witnesses was Mr. Stephen Tate, who had lived in Pleasant Grove in Jefferson County, Alabama, sixteen years. The court sustained the State’s objection to an inquiry of the witness as to defendant’s general reputation for truth and veracity in Jefferson County. Thereafter, in a voir dire interrogation of the witness by counsel for the State, the following occurred:

“Q. Mr. Tate this is something that you have heard in the community or is this just your personal opinion.
“A. It is my personal opinion.
“MR. WILLIAMS: We object if he hadn’t heard about it from the community.
“BY THE COURT: I sustain, Mr. Tate’s answer ‘yes’ is ordered stricken from the record and the jury is ordered to disregard it.”

The answer of the witness discloses that whatever testimony he may have given as to the general reputation of the defendant was only his own “personal opinion,” which would not have been admissible. Gamble, McEIroy’s Alabama Evidence, § 26.02(4) (1977). In view of this development, the sustention by the court of the State’s objections to previous questions as to the general reputation of the defendant for truth and veracity was relieved of any error such sus-tention could have had. The same result follows as to the witness Mr. Pete Patera, who, when he was asked whether his opinion as to defendant’s truth and veracity was based “on anything that you have heard,” replied, “I don’t think I have to base it on anything I hear. I use my own judgment.”

The third character witness for the defendant was Mrs. Mayo Taylor. As to her testimony, counsel for the State moved that it be excluded, “based on the fact it is not what she has heard but her own opinion.” The court said: “She had testified earlier that it was based on what she had heard and she testified it was her opinion. I am going to allow it.”

The court’s rulings as to the evidence offered by the defendant as to her good character or reputation were free of error.

During the direct examination of Officer McCray as he was testifying as a witness for the State on rebuttal as to the purchase of some marijuana from defendant on May 12, 1980, he testified:

“Q. Can you state whether or not you had a further conversation with Mrs. Graffeo at this time?
“A. Well at this particular time I asked could she get me anything else besides marijuana, you know perhaps some Quaa-ludes or Talwins.
“Q. What was her response, if any?
“A. She said, yes she could, she would check on it.”

On cross-examination, the witness testified:

“Q. McCray, I believe you testified you asked my client for some Quaaludes and some Talwin, is that correct?
“A. I asked her could she get me some.
“Q. Did you ever go back and get any Quaaludes or Talwin, yes or no?
“A. No, would you like to know why?”

On redirect examination, the following occurred:

“Q. Do you know what Talwin is?
“A. Talwin is—
“MR. LYON: Object. It is irrelevant.
“MR. WILLIAMS: He was going to try and buy some Judge, and she
“BY THE COURT: I sustain that.
“MR. WILLIAMS: We ask you Your Honor to take judicial knowledge that Talwin, Quaalude and methaqualone are on the controlled substances list.
“MR. LYON: I object it has no relevancy at all to the charges that my client is facing.
“BY THE COURT: Let’s just go on from this point, it is immaterial.
“MR. WILLIAMS: That is all.”

In appellant’s brief it is argued as to what we have just quoted as occurring during the redirect examination on rebuttal of Officer McCray:

“. .. The district attorney asked officer McCray ‘Do you know what Talwin is?’ The defendant objected and the district attorney stated, ‘Mr. Williams, he was going to try and buy some, Judge.’ and the court sustained the objection then. Mr. Williams said, ‘We ask, Your Honor, to take judicial knowledge that'Talwin, Quaalude, and methaqualone are on the controlled substance list. Defendant again objected and the Court would not rule on his objection. The comments of the district attorney were made in the presence of the jury after the Court had sustained an objection, yet, the district attorney insisted on referring to those illegal drugs which were not part of the crime charged in the indictment and were obviously made to inflame the jury and, in fact, did so. The Court committed reversible error in allowing these comments to be considered by the jury and when coupled with the other illegal evidence and remarks of the district attorney were so highly prejudicial that they could not be removed from the jury’s mind by the Court.”

While we do not approve the action of the district attorney in requesting in the presence of the jury that the court take judicial knowledge that the mentioned drugs were on the controlled substances list, and we think the court should have been more definite in its ruling on the objection of defendant, we do not interpret what the court said as action wherein it “would not rule on his [defendant’s] objection.” By saying, “Let’s just go on from this point, it is immaterial,” the court was apparently expressing a view in agreement with the point made by defendant by his objection. We agree with appellant that the matter should have been excluded from the consideration of the jury, but no motion was made to that effect. The court did not commit prejudicial error in what it did or in what it failed to do.

Appellant seeks to predicate error upon the following that occurred during the opening argument to the jury of counsel for the State:

“MR. WILLIAMS: We did not being [sic, which we construe as ‘bring’] up and quite frankly we could not bring up the other sale of marijuana on the May 12th date that you heard about today.
“MR. LYON: Object to that statement as to this date and counsel knows that is not proper.
“MR. WILLIAMS: Judge, we had direct testimony about her impeachment.
“MR. LYON: The purpose of the testimony, Your Honor, was one thing and the argument is made to another.
“BY THE COURT: Don’t let your argument stress on the improper aspect.”

In his brief, counsel for appellant says as to the portion of the transcript just quoted:

“He [counsel for the State] argued about a prior crime charged in another indictment that was illegally allowed into evidence for impeachment purposes of the defendant and even stated that he knew it was illegal by saying, ‘We did not bring up and quite frankly we could not bring up the other sale of marijuana on the May 12 date that you heard about today.’ “The defendant objected to this argument, but the Court allowed it to go to the jury. This argument was highly illegal and had the sole purpose of inflaming the emotions of the jury toward Fannie Graffeo. This argument should have been eradicated from the jury’s mind by proper instructions from the Court, however, the Court failed to do so and therefore committed reversible error.”

We do not disagree with all counsel for appellant states as just quoted from his brief, but we disagree, as we have indicated herein, that evidence as to the sale of marijuana on May 12, 1980, “was illegally allowed into evidence.” It seems that the trial judge was of the view that counsel for the State was on the borderline, at least, of improper argument and that he directed State’s counsel not to cross over it. Although the trial court did not definitely rule on defendant’s objection to the argument, there was no definite refusal to do so. Counsel for both parties immediately argued the question presented by the objection. The transcript does not show what was said immediately after the court said, “Don’t let your argument stress on the improper aspect.” Apparently it ended the issue between the parties at the time to the reasonable satisfaction of both parties. We conclude that no error prejudicial to defendant is to be found in what occurred as quoted above.

During the closing argument to the jury of counsel for the State, the following occurred:

“MR. HILL: I don’t have any children in that school.
“MR. LYON: I object. That is inflammatory and highly prejudicial. Never brought it out.
“MR. HILL: His own witness testified to it.
“MR. WILLIAMS: Through them, not us.
“BY THE COURT: I still rather you not delve into that, Mr. Hill.”

The court reporter’s transcript does not give the context of the material just quoted. There is good reason to believe, as counsel for appellant argues in his brief, that the reference was “to a school located near the premises” where Mrs. Graffeo had allegedly sold marijuana in her store. We do not question the correctness of such statement in appellant’s brief, but, in the absence from the transcript of any context of the statement of defendant’s counsel to which the objection was made, we are not at liberty to accept appellant’s statement as to the reference other than as argument only. As thus treated, we find no basis for concluding that the trial court should have done more than request “the district attorney ‘not to delve’ into that matter,” which counsel for appellant now urges as another basis for a reversal.

We have considered all of the issues raised by appellant as to the judgment of conviction. Appellant urges also that the court committed error in sentencing the defendant. The same contention is made in each of the other two cases, which we now consider.

CIRCUIT COURT CASES 80-419 AND 80-422

About two months after the trial and conviction in Case No. 80-420, the defendant and her attorney withdrew the plea of not guilty in No. 80-419 and in No. 80-422 and entered a plea of guilty therein. After an adjudication of guilt in each case, the court continued it “for sentencing and hearing on Presentence Investigation and probation application” until 9:00 a. m. on the 23rd day of February, 1981, the date to which Case No. 80-420 had been continued for a presentencing investigation report and for sentencing.

THE THREE CASES

All three cases were thereafter continued for the same purpose to March 23, 1981, at which time there was a hearing on all three cases as reported by the court reporter, whose transcript is the same in each of the three cases as it is in the other two. The transcript commences:

“PROCEEDINGS
“(There was a Bench Conference between the Court, the District Attorney, and Counsel for the Defendant out of the hearing of the Court Reporter; after which the following proceedings were had:)
“THE COURT: The request for probation is denied. You may proceed.”

Thereafter, the transcript contains about' twenty pages of testimony of three witnesses presented by defendant, about six pages of arguments of counsel and the pronouncement of sentence in each of the cases. The transcript does not contain a copy of the report of the presentence investigation.

A major contention of appellant in each of the cases is that the trial court “did not comply with ‘Alabama Rules of Criminal Procedure — Temporary Rules,’ in conducting a sentence hearing.” Rule 2(b)(2) of Alabama Rules of Criminal Procedure— Temporary Rules, effective February 23, 1980, provides:

“Upon a determination of guilt the court shall conduct a sentence hearing and pronounce sentence, or shall set a date for sentence hearing and pronouncement of sentence.”

Rule 3(a)(2) provides:

“Felony offenses. On motion of the court or written motion of either party, the court shall require a written report of a presentence investigation of a defendant convicted of a felony, and such defendant shall not be sentenced or otherwise disposed of before such report has been presented to and considered by the court.”

Rule 3(c) states:

“Availability of Report. Copies of the presentence report shall be furnished to the district attorney and attorney for the defendant prior to the sentence hearing.”

Rule 6(b)(1) provides:

“Unless the court has no discretion as to the penalty to be imposed and no power to suspend execution of the sentence, the court shall conduct a sentence hearing, unless waived by the parties with consent of the court .... ”

Appellant does not question the discretion vested in the trial court to grant or deny defendant’s application for probation. The irreviewability thereof is well settled. Turner v. State, Ala.Cr.App., 365 So.2d 335 (1978); Driggers v. State, Ala.Cr.App., 344 So.2d 226; Hughes v. State, 45 Ala.App. 250, 228 So.2d 862 (1969). In questioning the compliance by the trial court with Alabama Rules of Criminal Procedure — Temporary Rules, emphasis is placed upon the statement by the court at the commencement of the sentence hearing: “The request for probation is denied. You may proceed.” After considerable testimony and argument of counsel, the court said: “Probation will be denied .... ” On the date of the sentence hearing, the court entered a written order denying defendant’s application for probation in each of the three cases.

During the sentence hearing in the three cases, defendant called as a witness the probation officer who had made the report of investigation and Officer Gabriel McCray, who was the principal witness against the defendant in the case that was tried, No. 80-420. Appellant seeks to base error on a number of adverse rulings against defendant as to evidence sought to be introduced by such witnesses. Such questions give us some concern, but of primary concern to us is the fact that according to the transcript the trial court announced at the commencement of the hearing:

“The request for probation is denied.”

In our opinion, Alabama Rules of Criminal Procedure — Temporary Rules contemplate a hearing in which there should be no adjudication as to the punishment imposed or whether probation should be granted until both parties conclude their presentation of evidence and utilize their right to be heard. We have looked for some explanation in the record proper, and in the transcript, for the judgment pronounced, whereby it could be said with reason that the matter to be judged had not actually been prejudged. Although we are inclined to think that some such explanation can be made, we find none in the record proper, or in the transcript or in briefs of the parties. As a result, we must find that there was a failure to comply with the provisions of Alabama Rules of Criminal Procedure — Temporary Rules, effective February 23, 1980, as quoted above.

Although there is no suggestion or indication that the action of the court was influenced thereby, it is remarkably substantially coincidental that the relatively new crime in Alabama of “trafficking in Cannabis, coccaine, etc.,” as to which probation cannot be granted by the trial court, was first proscribed by Acts 1980, No. 80-587, p. 926, effective May 28, 1980, in the same month as, but only a few weeks later than, the commission of the crimes in the instant cases.

In remanding the cases for another sentence hearing, it is directed that the parties be given due notice of the time thereof, that the punishment fixed by the term of imprisonment imposed is to remain as it was in each case, and that the hearing to be conducted is to be limited to one for the purpose of determining, in accordance with Alabama Rules of Criminal Procedure— Temporary Rules, effective February 23, 1980, whether the sentence should be suspended and probation granted, and, if so, the extent and terms thereof.

CONCLUSION AS TO THE THREE CASES

Finding no error in the record prejudicial to the defendant affecting the judgment of conviction, the judgment of conviction in each of the three cases should be affirmed. Each case should be remanded to the trial court for another sentence hearing in accordance with the directions above stated. The trial court shall make due return to the order of remandment, with notice thereof to each of the parties. Either party aggrieved thereby will have fifteen days thereafter in which to file a brief to this court and the opposing party will have fifteen days within which to file a reply brief.

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 conviction in each case is hereby affirmed, and the case is remanded with directions for another sentence hearing.

AFFIRMED; REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCE HEARING.

All the Judges concur.

      . Throughout the record the store was referred to by the names Stop and Shop Mini Mart, Stop and Shop, and Stop and Snack.


source: Caselaw Access Project

author: DeCARLO, Judge.

license: Public Domain

text:
    Warren McGHEE, alias v. STATE.
    7 Div. 907.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      Kathleen M. Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Asst. Attys. Gen., for appellee.
   DeCARLO, Judge.

On August 31, 1981, appellant entered guilty pleas to the following three offenses: theft of property in the second degree; possession of controlled substances, and theft of property in the first degree. He was sentenced to fifteen, five, and fifteen years, respectively, with the three sentences to be served concurrently.

For the first offense appellant was advised by the trial court that the range of punishment “under the Habitual Offender Act” was fifteen years to life. Appellant answered “yes” to the trial judge’s question regarding whether he understood he was accused “as an habitual offender.” For the remaining two offenses appellant was not informed at all of the minimum and maximum punishments possible.

The State offered no proof of any prior convictions. On appeal, the State argues that appellant’s affirmative answer to the court’s question whether he understood he could be sentenced as an habitual offender was a waiver of proof of prior felonies.

In our judgment, no waiver can be inferred under these facts. An accused must be informed of the correct minimum and maximum sentences as an absolute constitutional prerequisite to acceptance of a guilty plea. Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975).

From the record before us, we are unable to determine how many, if any, prior felony convictions appellant may have had. Thus, it is impossible to decide whether, on the first plea, the trial court’s information regarding the minimum and maximum punishment “under the Habitual Offender Act” was correct. Additionally, on the last two pleas, there was no recitation of the punishment range for the offenses.

Unless an accused actually admits his prior convictions, see Miliner v. State, 414 So.2d 133, Ala.Cr.App., (1981), the State must prove his record in order to trigger the operation of the habitual offender sentencing provisions. See also Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971).

The judgments of conviction are reversed and the causes remanded to the Etowah Circuit Court.

REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Marilyn BROWN v. CITY OF BIRMINGHAM.
    6 Div. 804.
    Court of Criminal Appeals of Alabama.
    April 2, 1982.
    Arthur Parker, Birmingham, for appellant.
    Thomas Bentley, III, Asst. City Atty., Birmingham, for appellee.
   HARRIS, Presiding Judge.

This is an appeal from the denial of a petition for writ of habeas corpus in the Circuit Court of Jefferson County, Alabama.

The facts in this case are basically undisputed. Appellant was jailed on October 21, 1980, for the violation of two municipal ordinances. Her total sentence was 450 days. On February 26, 1981, appellant was released from jail by an order of the Birmingham Municipal Parole Board. On October 26, 1981, appellant was again incarcerated for parole violation consisting of several new municipal court convictions. It was stipulated that appellant would have served the full 450 days by the time of the habeas corpus hearing sentence if she had not been paroled.

Appellant contends in her writ that the state statutes authorizing municipal parole were not properly followed in granting or in revoking appellant’s parole. Because of this appellant contends the writ should have been granted.

The relevant portions of the Municipal Parole Board’s article are as follows:

“§ 15-22-72. Authority and duties; actions in writing.
“The board may remit fines and such costs as are payable to the city, and commute any sentence imposed by the municipal court or any court to which an appeal is taken, may grant paroles and work and educational releases, prescribe the terms upon which persons are paroled or released and may provide for the supervision of persons released on parole. Any period of parole may exceed the length of sentence but shall in no event exceed two years. Failure of any parolee to observe the conditions of his parole as prescribed by the board shall be sufficient cause for the board to revoke such parole.
“The board’s actions shall be in writing and shall be available to the governing body of such city and the mayor or other chief executive officer thereof. (Emphasis added.)
“§ 15-22-73. Appointment of parole officers; duties and powers; reports, records, etc., privileged.
“Parole officers may be appointed to investigate all cases referred by the board to such officers and shall furnish to each parolee under his supervision a written statement of the conditions of his parole, instruct each parolee regarding the same. “§ 15-22-76. Discharge; arrest for violation of parole, with or without warrant; brought before parole officer; hearing; serving sentence upon revocation.
“Upon the expiration of the period of parole the parolee shall be discharged. At any time during the period of parole the parolee may be arrested for the violation of any condition of his parole, and after a hearing by the board his parole shall be subject to revocation. Any parole officer, police officer or other law enforcement officer may arrest a parolee with or without a warrant for the violation of any condition of his parole. In case of an arrest without a warrant, the arresting officer shall have a written statement by a parole officer setting forth that parolee has, in the judgment of the parole officer, violated the conditions of his parole. Such statement shall be sufficient warrant for the detention of said parolee until he can be brought before a parole officer. Such parole officer, after advising said parolee in writing of the charged violation and hearing any evidence or explanation offered by parolee in his defense shall, if not satisfied from the evidence or explanation of the parolee, forthwith submit to the board a written report of such violation. Upon receipt of such report the board shall set a hearing date to determine if such parole shall be revoked. The parolee at such hearing may be represented by counsel and present evidence in his defense. In the event such parole is revoked, the board shall prepare a written opinion stating the evidence relied upon and the reason for such revocation. The parolee, upon such revocation, shall serve his sentence as though no parole had been granted him, notwithstanding his sentence would have ended but for the suspension thereof by parole. (Acts 1979, No. 79-674, p. 1189, § 7.) (Emphasis added.)

There is no question that the Board did not properly follow the requirements of the legislature as stated in these sections. Little of the Board’s actions were in writing, and what was in writing was almost unintelligible.

As to the Board’s actions granting parole, the only written document of the Board’s actions is the parole order which reads:

“Probation approved for 18 months. To maintain gainful employment and to pay fines. Any due charges of the above conditions is grounds for ratification.”

The legislature did not grant the Municipal Board authority to grant probation, only parole. The Board had no authority to do what it purported in writing to do.

Further, the order is confusing to the point of being unintelligible, and it failed to fully specify the conditions of parole. Also, appellee admits in his brief that the requirement of § 15-22-73 that the parole officer shall furnish the parolee a written statement of the conditions of parole was not done.

Not only were the requirements of the article ignored in granting parole, the Board did not properly revoke appellant’s parole. The record indicates that there was a Board hearing in which appellant’s parole was revoked, but there was no written opinion or findings as required by § 15-22-76, Code 1975.

We hold that the municipal parole board has a duty to carefully follow the procedures mandated by the State Legislature. We believe this is especially true in light of the added penalty in this article that, unlike the state parole statute, suspends the running of a sentence while a parolee is on parole, even if the sentence would have ended but for the suspension while on parole. § 15-22-76; § 15-22-32.

It appears that prior to the purported revocation of the parole in this case, petitioner had already served 23 days in excess of the sentence imposed, which thereby divested the Board of jurisdiction over her or control of her conduct. It results therefore that the learned trial judge erred in denying the writ prayed for.

The judgment appealed from is therefore reversed, set aside and held for naught and judgment is here rendered, ordering and directing the release and discharge of appellant from custody.

REVERSED AND RENDERED.

All the Judges concur.


author: PER CURIAM. SUNDBERG, Chief Justice,

text:
    Walter Gale STEINHORST, Appellant, v. STATE of Florida, Appellee.
    No. 55087.
    Supreme Court of Florida.
    March 4, 1982.
    Rehearing Denied April 27, 1982.

      Clifford L. Davis, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Fourteenth Judicial Circuit, in Bay County. The appellant was convicted on four counts of murder in the first degree and received three death sentences and one sentence to life imprisonment. We have jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.

I.

The testimony at trial showed that the appellant was a participant in a marijuana importation conspiracy. In accordance with the smuggling plan he was present on the night of January 23, 1977, near a beach landing site at Sandy Creek in Bay County. Appellant’s job was to guard the entrance to a dirt road leading to the beach where the marijuana was to be brought ashore and loaded on trucks.

Two men, Harold Sims and Douglas Hood, and two teenage girls, Sheila Mc-Adams and Sandra McAdams, approached the place where appellant was standing guard. Although there is nothing to explain their presence at that time and place, one reasonable inference is that they stumbled on the site of the smuggling operation by chance. The testimony indicates that there was then an exchange of fire between Harold Sims and the appellant. Harold Sims was shot and killed. Appellant then took the other three people captive, and confined them in a passenger van.

The testimony of several witnesses shows that appellant then proceeded to consult with several of his co-conspirators. It appears that Douglas Hood and the two Mc-Adams girls were held captive for several hours while appellant and the leaders of the group decided what to do with them. Meanwhile, the landing and loading of marijuana proceeded almost until morning.

Bobby Joe Vines, the organizer of the smuggling scheme, testified that after the shooting of Harold Sims, appellant asked that his friend Charles Hughes be brought to him. Hughes was summoned from the landing site where he was bringing marijuana ashore. There was testimony from which the jury could infer that when Vines and the other men left the area with their loads of marijuana, appellant and Hughes departed with a human cargo of one dead and three living persons.

Several months later divers discovered the bodies of the victims in a sinkhole in Taylor County. The evidence showed that all four victims had been shot to death. The bodies were weighted down with concrete blocks.

Various participants in the smuggling operation met over the next several days at a farm house in Gadsden County. Several of the participants testified that appellant and Hughes stated that they had disposed of the victims and put them where they would never be found. Also, David Capo testified that appellant admitted the killings of all four victims.

Appellant contends that the evidence was insufficient to sustain the verdicts of the jury. This contention is without merit.

II.

Appellant presents several arguments concerning procedural errors which he contends require a new trial.

Appellant argues that the trial court erred in granting the state’s challenges for cause to prospective jurors who indicated that they were opposed to capital punishment. Under Florida law, there is a ground for excusal for cause when jurors indicate that they would be unable, after finding the accused guilty of a capital offense, to participate in the required weighing of aggravating and mitigating circumstances and to consider death as a possible penalty. Another ground exists when prospective jurors’ opposition to the death penalty might interfere with their deliberation on the question of guilt or innocence.

Appellant concedes that these standards were followed by the trial court, but argues that in view of the wide prevalence of opposition to capital punishment, the exclusions deprived him of his right to be tried by a jury representative of the community. Our ruling on this contention is controlled by precedent. The argument is without merit. Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); Riley v. State, 366 So.2d 19 (Fla.1978).

Appellant contends that the court erred in allowing the state to present the testimony of relatives of the victims. He relies on the rule that a member of a murder victim’s family may not testify for the purpose of identifying the deceased where a non-related witness is available for such purpose. See Lewis v. State, 377 So.2d 640 (Fla.1979); Rowe v. State, 120 Fla. 649, 163 So. 22 (1935). The wife of Harold Sims and the mother of Sheila McAdams were allowed to testify, but not for the purpose of identifying the bodies of the victims. The defense had stipulated to the matter of identity. The testimony of these witnesses was presented to establish that the victims were seen alive on the day preceding the murders.

When Mrs. McAdams broke down on the witness stand, the judge ordered the jury removed. Following this occurrence, the defense stipulated to the admission in evidence of a police missing-persons report so that Mrs. McAdams would not have to testify further. The judge instructed the jury to disregard the unexpected emotional outburst. The impropriety, if any, was harmless.

Appellant contends that the trial court erred in denying his motion to strike the testimony of a state witness and in denying his motion for mistrial, both motions being grounded on a violation of the rule of sequestration of witnesses. On cross-examination of state witness Lloyd Woods, defense counsel brought out the fact that the witness had overheard testimony while waiting outside the courtroom and had also heard testimony by live radio broadcast while waiting in the state attorney’s office. Defense counsel moved to strike Woods’s testimony.

The trial judge conducted an inquiry. Woods told the judge that there was a radio on in the state attorney’s library and that he and several other witnesses had heard parts of the testimony. He said he also heard some in the hall outside the courtroom. Examination by state and defense counsel focused on whether Woods’s testimony had been affected by what he heard. Upon inquiry by the court, it developed that a number of state witnesses had overheard the testimony of other state witnesses either in the hall outside the courtroom, or, by radio, in the state attorney’s office or in the jail. In his brief appellant relies on the impropriety of these witnesses testifying. At trial, however, appellant through counsel moved to strike only Woods’s testimony and moved for a mistrial after the inquiry into Woods’s rule violation. Defense counsel declined the court’s offer to allow examination of other state witnesses concerning what testimony they had overheard and whether it influenced them.

Appellant contends that Dumas v. State, 350 So.2d 464 (Fla.1977), applies and requires a new trial. There the trial court refused to allow a defense witness to testify, on the ground that he had remained in the courtroom in violation of the rule. This Court pointed out that the rule is intended to prevent a witness from shaping his testimony by what he hears from other witnesses. “Balanced against the rule, however, is the criminal defendant’s Sixth Amendment and due process right to present witnesses in his own behalf.” Id. at 465. Without indicating precisely what circumstances will justify excluding a defense witness for violation of the rule, we simply held that it was error to exclude the witness without conducting an inquiry “to determine whether the witness acted with the knowledge, consent, procurement or connivance of the defendant or defense counsel .... ” Id. at 466.

Just as the defendant has the constitutional right to present witnesses in his behalf, the people of the state, acting through the state attorney, have the inherent sovereign prerogative to present evidence of the defendant’s criminal conduct. It is the duty of the state attorney to carry out this prerogative of the people. Art. V, § 17, Fla.Const.; § 27.04, Fla.Stat. (1979). Just as a defense witness, as Dumas held, should not be excluded without inquiry into whether the rule violation occurred with the knowledge or by the connivance of the defendant or defense counsel, so also should a state witness who has violated the rule not be excluded without similar inquiry. In the present case there was inquiry into the effect of the violation on Woods’ testimony.

Dumas does not outline the circumstances under which a court may properly exclude a witness for violating the rule. The test, however, is whether the testimony of the challenged witness was substantially affected by the testimony he heard, to the extent that his testimony differed from what it would have been had he not heard testimony in violation of the rule. Defense counsel tried to show that the testimony of Woods may have been affected by what he heard. The state attorney elicited testimony contradicting this, and the court made a determination and ruling. The defense waived the opportunity for a similar examination of the other witnesses. Now appellant argues that the court, on its own motion, should have inquired into the effect of and state complicity in the violations. This contention is without merit.

Appellant contends that the trial judge improperly limited defense counsel’s cross-examination of a state witness and that this was reversible error. Appellant relies on our decision in Coxwell v. State, 361 So.2d 148 (Fla.1978).

During the direct examination of state witness David Capo, it was brought out that the witness had a conversation with appellant a few days after the smuggling operation..: The conversation took place at the home of David Goodwin in Tallahassee. Capo testified that at this time appellant told him the circumstances of the killings.

On cross-examination, defense counsel asked Capo why he was at David Goodwin’s house talking with appellant about the murders. Capo responded that he was there to inquire what had become of Chris Goodwin, who had been left offshore in a small boat the night of the smuggling operation. Defense counsel then asked whether Capo was an instrumental part of the importation scheme.

At this point witness Capo’s own attorney asked to approach the bench. He invoked the privilege against self-incrimination on behalf of his client, who, he said, was subject to prosecution in federal court. The jury was taken out of the courtroom and argument was heard. The court limited cross-examination to the witness’s knowledge of the murders and declined to allow inquiry into his participation in the smuggling plan generally. Defense counsel objected and moved for a mistrial.

The objection interposed by Capo’s attorney was based upon the argument that defense counsel’s questioning had exceeded the scope of permissible cross-examination, although relevance and the witness’s interest in not incriminating himself were also mentioned. Appellant’s motion for mistrial, taking exception to the court’s ruling sustaining the objection, was grounded on the argument that the line of questioning was relevant to the issue of the witness’s credibility.

The right of a criminal defendant to cross-examine adverse witnesses is derived from the Sixth Amendment and due process right to confront one’s accusers. One accused of crime therefore has an absolute right to full and fair cross-examination. Coco v. State, 62 So.2d 892 (Fla.1953). A limitation on cross-examination that prevents the defendant from achieving the purposes for which it exists may be harmful error.

The proper purposes of cross-examination are: (1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination and, (2) to impeach the credibility of the witness, which may involve, among other things, showing his possible interest in the outcome of the case. Burns v. Freund, 49 So.2d 592 (Fla.1950); Louette v. State, 152 Fla. 495, 12 So.2d 168 (1943); Leavine v. State, 109 Fla. 447, 147 So. 897 (1933); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912). Therefore it is held that questions on cross-examination must either relate to credibility or be germane to the matters brought out on direct examination. Pearce v. State, 93 Fla. 504, 112 So. 83 (1927); Wallace v. State, 41 Fla. 547, 26 So. 713 (1899). If the defendant seeks to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own. Stated more succinctly, this rule posits that the defendant may not use cross-examination as a vehicle for presenting defensive evidence. Coco v. State, 62 So.2d 892 (Fla.1953); Padgett v. State, 64 Fla. 389, 59 So. 946 (1912).

In summary, the rule permits inquiry into “all the facts and circumstances connected with the matters of the direct examination.” It does not, however, “preclude an inquiry as to the animus, interest, or motives of a witness in reference to the parties litigant or the subject-matter of the suit.” Tischler v. Apple, 30 Fla. 132, 138-39, 11 So. 273, 275 (1892).

Appellant argues that Coxwell v. State, 361 So.2d 148 (Fla.1978), is applicable to this case. In Coxwell, the Court held

that where a criminal defendant in a capital case, while exercising his sixth amendment right to confront and cross-examine the witnesses against him, inquiries of a key prosecution witness regarding matters which are both germane to that witness’ testimony on direct examination and plausibly relevant to the defense, an abuse of discretion by the trial judge in curtailing that inquiry may easily constitute reversible error.

Id. at 152 (citation omitted). Appellant contends:

Here, as in Coxwell, not only was the ruling erroneous since the cross-examination did not exceed the scope but is prejudicial to Appellant’s defense since it forestalled development of the only viable defense theory; that Capo and Vines had set up a marijuana deal, hired Steinhorst to unload the boat, had profited royally, received immunity and placed the blame for the murders on their hireling when they were actually committed by their major co-conspirator and comrade David Goodwin.

Brief of Appellant at 25. It is to be noted, however, that this “only viable defense theory” was not argued below when defense counsel responded to Capo’s lawyer’s objection, took exception to the judge’s ruling, and moved for a mistrial. Defense counsel at that time asserted that his line of inquiry was calculated to impeach the credibility of the witness.

There are a number of reasons why appellant may not prevail on this issue. In the first place, at trial appellant’s counsel stated that the questions he wished to ask the witness were for the purpose of impeaching his credibility. Appellant now argues, however, that he was trying to develop a viable defense theory that Capo and Vines wanted to blame the murders on appellant and protect David Goodwin. Since defense counsel did not present this latter argument to the trial court, it is not properly before this Court on appeal.

Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court. State v. Jones, 377 So.2d 1163 (Fla.1979); State v. Barber, 301 So.2d 7 (Fla.1974); Silver v. State, 188 So.2d 300 (Fla.1966); Dukes v. State, 3 So.2d 754, 148 Fla. 109 (1941). Furthermore, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below. Haager v. State, 83 Fla. 41, 90 So. 812, 813 (1922); Kelly v. State, 55 Fla. 51, 45 So. 990 (1908); Camp v. Hall, 39 Fla. 535, 22 So. 792 (1897); Black v. State, 367 So.2d 656 (Fla. 3d DCA 1979).

Secondly, even if appellant were to confine his argument on appeal to the ground raised below, we would not perceive any error. Defense counsel said the purpose of the inquiry was to impeach credibility. It is proper for such purpose to ask a witness about past criminal convictions, and also to bring out pending criminal charges. But it is not proper to engage in a general attack on the character of the witness. Pandula v. Fonseca, 145 Fla. 395, 199 So. 358 (1940); Taylor v. State, 139 Fla. 542, 190 So. 69 (1939); Nelson v. State, 99 Fla. 1032, 128 So. 1 (1930). While the defense had the right to question Capo as to the whole of the conversation he spoke of on direct examination, Louette v. State; Haager v. State, and as to the factual background of the conversation, to question him generally about his role in the marijuana smuggling operation would have been to engage in a general attack on his character. Direct examination had pertained to the conversation and had touched on the background and the occasion for it, but the court below was correct in preventing the cross-examination from either going beyond the scope of direct or becoming, under the guise of impeachment, a general attack on the character of the witness.

Furthermore, as far as the matter of impeachment of the credibility of the witness is concerned, any error in restricting the defense in its attempt to show Capo’s involvement or interest in the case was surely harmless, as these matters were substantially put before the jury through the direct and cross-examination of Capo as well as the testimony of other witnesses. Steele v. State, 85 Fla. 57, 95 So. 299 (1923); Danford v. State, 53 Fla. 4, 43 So. 593 (1907).

Finally, even if we were to consider the argument appellant presents, that the court’s sustaining the objection deprived him of the opportunity to develop a viable defense theory, we would find the contention to be without merit. This case is not like Coxwell. In order to have developed the viable defense theory now asserted, defense counsel would have had to go beyond the scope of direct examination. This is a case in which it would have been proper to require the defendant, to develop his theory, to call his own witnesses, as this theory was clearly a defensive matter well beyond the scope of the direct examination.

For the above-stated reasons, we find appellant’s argument that the court’s ruling on the cross-examination question entitles him to a new trial to be without merit.

The appellant contends that he was denied a fair trial because of improper, prejudicial comments made by the prosecutor in closing argument to the jury. Appellant claims the state attorney indirectly commented on the fact that appellant did not testify, expressed an opinion as to appellant’s guilt, evoked geographical prejudice, and misstated the evidence to inflame the jury.

Defense counsel made no objections to any of the comments he attacks as improper now, with the single exception of the instance where the prosecutor attributed to appellant a particularly callous remark regarding one of the victims when the testimony showed it was actually made by Charles Hughes. Upon defense counsel’s objection, the trial judge advised the jurors that they were the sole judges of the evidence. The impropriety was thereby corrected. Our review of the closing argument in the context of all the circumstances reveals that there was no impropriety in any of the other prosecutorial comments.

Having given careful consideration to all appellant’s contentions of reversible error, we find there is none. Therefore, the judgments of conviction are affirmed.

III.

The jury recommended a sentence of life for the murder of Harold Sims and death for each of the murders of the other three victims. The trial court judge imposed sentence in accordance with the recommendations of the jury. The court made written findings as follows:

After studying, considering, and weighing all of the evidence in the case the Court makes the following findings of fact as to aggravating circumstances:
1) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of the crime of kidnapping [Florida Statutes, Section 921.141(5)(d) ]. The defendant was involved in a marijuana smuggling operation: his role was to prevent anyone from approaching the beach where the marijuana was being brought from a boat, so that there would be no witnesses to the illegal operation. Douglas Hood, Shiela McAdams, and Sandra McAdams approached the lookout post in a truck driven by Harold Sims. After an exchange of gunfire between Sims and the defendant, Sims was killed. The defendant and others put Hood, Shiela Mc-Adams, and Sandra McAdams in a van. They were tied and gagged. The defendant and Charlie Hughes left the scene in the van with the three victims. This was kidnapping. The bodies of the victims were found, months later, in a sinkhole more than one hundred miles from the scene of the marijuana smuggling operation.
2) Although there would be pecuniary gain in the event the smuggling operation was successful, the Court does not find that the murder was committed for pecuniary gain as contemplated by Florida Statutes, Section 921.141(5)(f). Although the smuggling operation was for pecuniary gain, the murder was not.
3) The capital felony was especially heinous, atrocious, and cruel. Florida Statutes, Section 921.141(5)(h). The three victims, bound and gagged were confined in a small van with the body of their companion, Harold Sims. They were not blindfolded. While under armed guard, they underwent the experience of seeing the firearms which would be the instruments of execution, hearing the sobs of each other, seeing the dead body of Sims, and feeling the hope of survival vanish. The first victim suffered the least and the last suffered the most. These were execution-type slayings, requiring cold, brutal, and heartless calculation to murder by firing a shot into the skull of a defenseless human being. Although the evidence does not show whether Charlie Hughes or the defendant actually pulled the trigger, the evidence does show that only these two were with the victims at the time of the murder. Defendant was armed and was in the rear of the van with the victims when it was driven to the place of execution by Hughes. Hughes has never been apprehended.
The Court makes the following findings of fact as to mitigating circumstances:
The defendant has no significant history of prior criminal activity.
The court further finds that there were no mitigating circumstances which outweigh the aggravating circumstances. These were pitiless crimes which were unnecessarily torturous to the victims. In light of the totality of the circumstances, it is the reasoned judgment of the Court that the advisory sentence of the jury should be followed and that the death sentence should be imposed upon the defendant.

Appellant contends that the judge’s findings are not supported by the evidence and that the aggravating circumstances found are legally inappropriate under the circumstances. We conclude that the evidence supports the findings of aggravating circumstances. The finding that the murders were committed in the course of the crime of kidnapping is proper. The finding of heinousness based on infliction of mental anguish is also proper. Knight v. State, 338 So.2d 201 (Fla.1976). Therefore, we approve the findings. We also approve the judge’s determination that the aggravating circumstances outweigh the mitigating circumstance.

The aggravating circumstances outweigh the one mitigating factor. The jury recommended three sentences of death. We therefore approve the sentences of death. The four judgments of conviction of murder in the first degree and three sentences of death are affirmed.

It is so ordered.

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

SUNDBERG, Chief Justice,

dissenting:

Because I believe there was a substantial violation of the rule of sequestration and the voir dire examination of witness Wood demonstrated probable prejudice I would reverse the conviction and remand for a new trial. Cf. Dumas v. State, 350 So.2d 464 (Fla.1977) (inquiry required for sequestration violation to determine witness disqualification).


author: ALDERMAN, Justice.

text:
    In the Matter of John L. COOKE, individually and d/b/a J. L. Cooke Realty and Maureen E. Cooke, Bankrupt. John L. COOKE, Plaintiff-Appellant, v. Sonia URANSKY, Trustee, Defendant-Appellee.
    No. 60669.
    Supreme Court of Florida.
    March 4, 1982.
    Rehearing Denied April 28, 1982.

      Philip L. Burnett, Fort Myers, for plaintiff-appellant.
    Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for defendant-appellee.
   ALDERMAN, Justice.

The United States Circuit Court of Appeals, the former Fifth Circuit, asks by certified question whether Florida allows foreigners visiting the United States as tourists to place a residence owned in this state beyond the reach of creditors under the Florida homestead exemption. Cooke v. Uransky (In the Matter of Cooke), 643 F.2d 277 (5th Cir. 1981). We answer this question in the negative and agree with the resolution of this issue by the United States District Court for the Middle District of Florida in Cooke v. Uransky (In the Matter of: John L. Cooke), Case No. 79-1190-Civ-T-GC (May 1, 1980), wherein the district court adopted the order of the bankruptcy judge.

Cooke, a Canadian citizen who was a temporary visitor in Florida merely as a tourist, filed a petition for voluntary bankruptcy on June 19, 1979, and claimed a Fort Myers’ residence as his homestead, exempt from claims of creditors pursuant to article X, section 4 of the Constitution of Florida. The trustee in bankruptcy filed her report of exempt property and disallowed the homestead exemption claim, and Cooke subsequently filed an objection to the trustee’s report. The bankruptcy judge agreed with the trustee’s report and determined that Cooke was a citizen of Canada, was not registered as a resident alien pursuant to the provisions of the United States Code governing the status of aliens, and did not have a permanent visa but was in the United States as a tourist. The bankruptcy judge explained that while it is no longer necessary that the head of the family reside in Florida, the bankrupt is still required to establish that he intended to make the property which he claims as homestead his or his family’s permanent place of residence. Relying on the rationale of our decision in Juarrero v. McNayr, 157 So.2d 79 (Fla.1963), the bankruptcy judge concluded that Cooke was incapable of declaring a Florida home as his permanent residence unless his legal status changed, and therefore he could not avail himself of the homestead benefits under article X, section 4 of the Florida Constitution. In the Matter of Cooke, 1 B.R. 537 (Bkrtcy.N.D.Fla.1979).

Cooke argues that this constitutional provision relating to homestead exemption contains no prerequisite that there be an intent to make the property in question his or his family’s place of residence. He maintains that the 1968 amendment to the homestead provision, eliminating the requirement that the head of the family reside in this state, also abrogated any requisite that there be an intention to make the property his or his family’s permanent residence.

We reject this contention, and we hold that although it is not necessary that the head of the family reside in the state or intend to make the property in question his permanent residence, he must establish that he intended to make this property his family’s permanent residence.

Article X, section 4, Constitution of Florida (1968), provides for exemption of a homestead owned by the head of a family and states:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;

Article X, section 1, Constitution of Florida (1885), provided for the exemption of homestead owned by a head of a family residing in this state and stated:

SECTION 1. Exemption of homestead; extent. — A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists ....

The 1885 constitution was consistently construed to impose two separate and distinct requirements before the head of the family owning the property may qualify for homestead exemption. One requirement was that he must intend to make the property his family’s permanent residence, and the other was that he must reside in this state. See, e.g., In re Estate of Van Meter, 214 So.2d 639, 643 (Fla. 2d DCA 1968), approved, 231 So.2d 524 (Fla.1970).

The actual characterization of property as homestead depends upon the intention of the head of the family to make the property his family’s permanent residence. Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943); Lanier v. Lanier, 95 Fla. 522, 116 So. 867 (1928). The requirement that the head of the family reside in this state, however, did not go to the characterization of the property as homestead and was not an integral part of the concept of homestead as was the requirement of intent, but rather it went to eligibility of the head of the family to claim this exemption. Elimination of this latter requirement in no way derogated the character and concept of homestead and therefore did not eliminate the requirement that the head of the family intend to make the property his family’s permanent residence in order for him to avail himself of the homestead benefits under article X, section 4.

We next address the question of whether Cooke, a foreigner visiting the United States as a tourist, could legally formulate the requisite intent. The bankruptcy judge explained Cooke’s status under federal law as follows:

Canadian citizens are not required to obtain a visa in order to enter the United States as visitors, but they must have a permanent visa if they intend to reside in this country indefinitely and must register just like other aliens as a resident alien and be in possession of an alien registration receipt card at all times. Title 8 U.S.C. Sec. 1304; 8 C.F.R. Sees. 211.1, 212.1 and 245 (1979).
From all this it follows that a tourist who does not hold a permanent visa cannot be a permanent resident of this state and regardless of what his intent is to do in the future, he is incapable of declaring a home in this state as his permanent residence unless his legal status is changed. As the bankrupt is not registered as a resident alien, does not have a permanent visa, but is in this country merely as a tourist, he does not have the ability to declare the property in question as his permanent residence and therefore cannot avail himself of the homestead benefits under Article X, Sec. 4 of the Constitution of Florida.

In the Matter of Cooke, 1 B.R. at 539.

We agree with this conclusion of the bankruptcy judge under the particular circumstances of this case, and we find our following rationale in Juarrero v. McNayr to be pertinent. There, we said:

Citizenship is not a prerequisite for claiming homestead exemption. See Smith, Tax Assessor et al. v. Voight, 158 Fla. 366, 28 So.2d 426. Appellants have made every requirement for the exemption claimed within their power, and thus the question arises as a matter of law as to whether or not, under the circumstances mentioned, they possess the legal power to rightfully and in good faith make the subject property their “permanent home.” We must adopt the view of the Chancellor that they cannot legally intend to do that which by law and the temporary nature of their visas they are prohibited from doing.
It is true that a resident of another state in this country may abandon residence in that state, come to Florida, purchase a home, reside in it, and declare it to be his permanent residence and become entitled to the homestead exemption provided by Section 7, Article X of our Constitution. Such person must make such declaration “rightfully” and in “good faith.” This might also be true in the case of one from another country, who is in this country with a permanent visa. Such persons have the freedom and right with certainty to make and declare a bona fide intention of permanent residence in the home owned and located in this state. This is not so, however, in the case of a citizen and former resident of a foreign country who is here under the authority of nothing more than a temporary visa, because such person has no assurance that he can continue to reside in good faith for any fixed period of time in this country. Consequently, we hold he cannot “legally,” “rightfully” or in “good faith” make or declare an intention which he has no assurance he can fulfill or carry out because of the temporary nature of the visa. In other words, he does not have the legal ability to determine for himself his future status and does not have the ability legally,to convert a temporary residence into a permanent home.

157 So.2d at 81.

Based upon the facts of this case, in response to the certified question, we state that Cooke may not place the residence owned by him in this state beyond the reach of creditors under the Florida homestead exemption because, at the time he petitioned for bankruptcy, he could not legally formulate the requisite intent to make that residence his family’s permanent place of residence.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD and McDONALD, JJ., concur.

OVERTON, J., dissents.

      . It appears that Mr. Cooke and his family were Canadian citizens temporarily in the United States as tourists and that none Of them had the legal right to reside permanently in Florida. This being the case, Mr. Cooke could not legally formulate the requisite intent to make the Florida property his family’s permanent place of residence.


text:
    Richard A. McCARTHY and Margaret C. McCarthy, Appellants, v. Dr. Joseph MENSCH, Mercy Hospital, Inc., Dr. Sherif Shafey and the Florida Patients Compensation Funds, Appellees.
    No. 58636.
    Supreme Court of Florida.
    March 18, 1982.

      Elihu H. Berman of Krug, Berman & Silverman, Clearwater, for appellants.
    Robert C. Ward of Adams & Ward, Miami, for appellees.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ALDERMAN, Justice.

This is an appeal by plaintiffs in a medical malpractice case from a final judgment of the Circuit Court of Dade County in favor of the defendants. Since, in reaching its decision, the trial court upheld the constitutionality of section 768.47(2), Florida Statutes (1979), and since this appeal was filed prior to the 1980 amendment to article V of the Florida Constitution, we have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution (1972). We affirm.

Plaintiffs, before suing defendants, complied with the provisions of Florida’s medical mediation act. The medical mediation hearing panel found that the defendants were not actionably negligent. Subsequently, plaintiffs began this lawsuit and asked the trial court to instruct the defendants not to refer during trial to the hearing panel’s finding of no actionable negligence. They argued that to permit the conclusion of the hearing panel into evidence as provided by section 768.47(2) would be an unconstitutional deprivation of their right to a trial by jury and a denial of their right to due process. Plaintiffs’ motion was denied. Defendants introduced the panel’s decision into evidence and, in their final argument to the jury, commented on it. The court instructed the jury, as required by section 768.47(2), that the conclusion of the hearing panel was not binding but was to be accorded such weight as they choose to ascribe to it. The jury returned a verdict for the defendants.

The constitutional history of Florida’s medical mediation act is brief. As was stated in Carter v. Sparkman, 335 So.2d 802 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977), at the time of its enactment, there was an imminent danger that a drastic curtailment in the availability of health care services would occur in this state. The legislature, recognizing the crisis and the consequential need for legislation, sought to resolve the crisis through enactment of chapter 75-9, Laws of Florida. These statutory provisions required compulsory mediation of medical malpractice claims and were intended to reduce the cost of malpractice insurance and ultimately medical expenses.

Taking judicial notice of the “crisis” in the area of medical care, we upheld the validity of the medical mediation act as a legitimate exercise of the state police power. In Carter, we stated that “[although courts are generally opposed to any burden being placed on the rights of aggrieved persons to enter the courts because of the constitutional guaranty of access, there may be reasonable restrictions prescribed by law.” 335 So.2d at 805. But we also-noted that “the pre-litigation burden cast upon the claimant reaches the outer limits of constitutional tolerance.” Id. at 806.

Four years later, however, in Aldana v. Holub, 381 So.2d 231 (Fla.1980), this Court found that the practical operation and effect of the statute rendered it unconstitutional in its entirety as a violation of the due process clauses of the United States and Florida Constitutions. The inherent inflexibility of the absolute jurisdictional periods led us to conclude that section 768.-44(3) served to deprive the petitioners in Aldana of due process, and we held these jurisdictional periods to be arbitrary and capricious in operation and to cause the statute to be intractably and incurably defective. We said, however, that our decision in Aldana would have prospective application only:

In any case where the written decision of the medical mediation panel has been filed with the clerk of the court on or before the date this decision is filed (Feb. 28, 1980), a party may introduce that decision in evidence. In all other cases,. medical mediation proceedings are hereby terminated and declared void as of the above filing date.

381 So.2d at 238.

The constitutional issues in the present case are whether the application of section 768.47(2) denied plaintiffs their right to a trial by jury, to due process of law, and to equal protection of the law. In resolving these issues, we find the decision of the United States Circuit Court of Appeals for the Fifth Circuit in Woods v. Holy Cross Hospital, 591 F.2d 1164, 1180 (5th Cir. 1979), to be persuasive, and we agree with its rationale.

In Woods, an Ohio resident and the ad-ministratrix of the estate of her late husband brought a medical malpractice action against two Florida physicians, a hospital, and their malpractice insurers seeking damages pursuant to the Florida Wrongful Death Act. The federal trial court dismissed the action on the ground that plaintiff had failed to perform a condition precedent to her suit by not proceeding before a Florida medical mediation panel pursuant to the Florida medical mediation act. Plaintiff appealed, claiming that the admission into evidence of a hearing panel’s findings on liability would so influence the jury that it would be unable independently to examine the question of liability, particularly since section 768.47 precludes the calling of panel members to testify regarding the merits of the case. This, she argued, would deny her right to a jury trial as provided by the seventh amendment of the United States Constitution. She also claimed that section 768.47 deprived her of due process and equal protection of the laws.

In finding the claimed denial of right to jury trial untenable, the Fifth Circuit noted that section 768.47(2) provides: “The jury shall be instructed that the conclusion of the hearing panel shall not be binding, but shall be accorded such weight as they choose to ascribe to it.” The Court then held:

The parties to a malpractice dispute are free to present the same witnesses and exhibits before the trial jury that they presented to the mediation panel, and the jury may draw its own conclusions from their testimony, even if in so doing it rejects the panel’s finding. We observe that the United States Supreme Court has on several occasions approved the admission of expert findings into evidence before a jury and has consistently rejected seventh amendment challenges to such a procedure.
The mere unavailability of panel members for testimony at the subsequent trial does not render section 768.47 unconstitutional.

591 F.2d at 1180. The Fifth Circuit also held that “the admissibility of mediation panel findings at a subsequent trial does not unduly affect the fairness of that trial and therefore does not constitute a due process violation.” 591 F.2d at 1177. It also rejected plaintiff’s contention that this section violated her right to equal protection of the laws.

We hold that section 768.47(2) does not contravene appellants’ right to a trial by jury as guaranteed by article I, section 22 of the Florida Constitution. That right has not been abrogated by the statute; rather it has been specifically provided for therein. We also conclude that this section does not deny plaintiff due process of law.

Plaintiffs’ final argument, that they were denied equal protection of the law because the defendants had the option of not participating in mediation while mediation was made mandatory for them, is without merit. We agree with the conclusion of the Fifth Circuit in Woods v. Holy Cross Hospital, 591 F.2d at 1175 n. 17, that this does not result in the denial of equal protection of the laws.

Accordingly, we affirm the judgment of the trial court.

It is so ordered.

SUNDBERG, C. J., and OVERTON and McDONALD, JJ., concur.

ADKINS, J., dissents.

      . Section 768.47(2) provides:
      (2) The conclusion of the hearing panel on the issue of liability may be admitted into evidence in any subsequent trial. However, no specific findings of fact shall be admitted into evidence at trial. Parties may, in the opening statement or argument to the court or jury, comment on the panel’s conclusion in the same manner as any other evidence introduced at trial. If there is a dissenting opinion, the numerical vote of the panel shall also be admissible. Panel members may not be called to testify as to the merits of the case. The jury shall be instructed that the conclusion of the hearing panel shall not be binding, but shall be accorded such weight as' they choose to ascribe to it.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Thomas W. MONTGOMERY, Respondent.
    No. 60583.
    Supreme Court of Florida.
    March 18, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, Patricia Etkin, Bar Counsel, Miami, and Frank C. Walker, II, Chairman, Seventeenth Judicial Circuit Grievance Committee “C”, Fort Lauderdale, of The Florida Bar, for complainant.
    No appearance, for respondent.
   PER CURIAM.

This disciplinary proceeding is before us on the complaint of the Florida Bar and the report of the referee recommending disbarment. Neither the Bar nor the respondent has petitioned for review. We have jurisdiction. Art. V, § 15, Fla.Const.

The Bar charged respondent with the neglect of specific legal matters entrusted to him and with the abandonment of his law practice without giving notice to his clients. Respondent did not answer the Bar’s complaint and request for admissions or appear at the final hearing, although he received proper notice of these proceedings. The referee recommended that respondent be found guilty of the specific and general neglect of his law practice, as charged in the complaint, in violation of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1) and (6), 6-101(A)(2) and (3), and 7-101(A)(l), (2), and (3). In recommending respondent’s disbarment, the referee considered, as aggravating factors, respondent’s failure to cooperate with the Bar, his failure to appear at the final hearing, his failure to take adequate measures to protect his clients’ interests upon abandonment of his law practice, and his failure to pay his Florida Bar dues since 1979.

We agree with all of the findings and recommendations of the referee; respondent, Thomas W. Montgomery, is hereby disbarred from the practice of law. Costs are assessed against respondent in the amount of $558.35.

It is so ordered.

ADKÍNS, Acting C. J., and OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Robert H. ARONSON, Respondent.
    No. 61561.
    Supreme Court of Florida.
    March 18, 1982.
    Dale E. Krout, Jr., Bar Counsel, Tallahassee, for complainant.
    Robert H. Aronson, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment to violations of rule 11.02(3)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 1-102(a)(1), (4), (5) and (6) of the Code of Professional Responsibility. We approve the Petition, and respondent, Robert H. Ar-onson, is hereby suspended from the practice of law for one year retroactive to August 3, 1978, and thereafter until he proves rehabilitation in reinstatement proceedings pursuant to rule 11.11 of the Integration Rule of The Florida Bar.

Costs in the amount of $100.00 are hereby taxed against the respondent.

It is so ordered.

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