text:
    Carl Ray ROBINSON v. Esther M. ROBINSON.
    Civ. 2760.
    Court of Civil Appeals of Alabama.
    Dec. 16, 1981.
    Rehearing Denied Jan. 13, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-357.

      Lee Bains and Jon B. Terry, Bessemer, and Douglas P. Corretti of Corretti & New-some, Birmingham, for appellant.
    James B. Kierce, Jr., of Stone, Patton & Kierce, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

The husband appeals from an order awarding the wife $45,000 in attorney’s fees for services rendered in connection with the sale of property divided between the parties by the original divorce decree in 1978.

There was an extensive property division made by the court in the original divorce decree. The property involved here is a 3,000-acre farm in Morgan County, Alabama, acquired by the husband prior to the marriage. In the divorce decree the court found the market value of the farm to be $380,000, subject to a mortgage of $60,000 to $70,000. The husband was ordered to meet the mortgage payments as they came due, together with ad valorem taxes. Jurisdiction of the property for the purpose of selling it for division when a sale could be obtained was reserved. When the sale was completed, the payments made on the mortgage and taxes were to be repaid to the husband after which the net proceeds were ordered divided — seventy percent to the wife and thirty percent to the husband.

In concluding the eight-page divorce decree, the husband was ordered to pay the wife $2,500 per month as periodic alimony, pay the real estate appraiser’s fee of $5,900 and pay to the wife $25,634.15 as an attorney fee and expenses.

The original decree was appealed by the husband and was affirmed by this court in the case of Robinson v. Robinson, 381 So.2d 637 (Ala.Civ.App.). Certiorari, was denied by the supreme court on March 28, 1980. 381 So.2d 641 (Ala.1980).

In May 1980 the husband filed a pleading in the case, offering to purchase the farm by paying to the wife seventy percent of the $380,000 found by the court to be the market value, less the deductions directed in the original decree and the balance due on the mortgage. He calculated the sum then due the wife to be $212,025.99.

The wife filed a counter offer of $10,000 more for the husband’s thirty percent interest than he would have received if the property sold for $380,000. The husband raised his offer by $25;000. Each filed 60(b) motions to set aside the directed division of the proceeds of a sale of the property. The wife filed a petition for Rule Nisi for failure of the husband to make payments to her otherwise due from the original decree. She also sought restraint of the husband from interfering with her efforts to procure purchasers for the property.

These pleadings and motions were set and heard by the court first on June 19, 1980. Subsequently on September 17, 1980, evidence was heard orally at length on matters transpiring between the parties since the divorce decree relating to this particular property. Much of the evidence related to the apparent difference in the actual market value of the property from that of $380,000 determined by the court in 1978. It was disclosed that there were two offers of purchase at the figures of $730,000 and $755,000 respectively. On the first offer of $730,000, a commission to a real estate agent had been promised by plaintiff. The second offer of $755,000 required payment of a $35,000 commission.

The taking of testimony was interrupted by a request for consultation of counsel. There subsequently followed an offer from defendant-husband to pay to plaintiff-wife the net sum, in cash within sixty days, of $425,000 for her seventy percent interest in the property. Counsel for plaintiff agreed that such offer was equal to or better than the other offers received by the court insofar as benefit to the plaintiff. He announced he was unable to agree to a judgment by consent. However, he said he would not resist a judgment so entered by the court.

The court directed counsel for defendant to draft a recommended judgment in consultation with counsel for plaintiff and submit such satisfactory draft to him. The court thereafter drew its “final decree and order” on September 19, 1980, stating therein that the parties waived all of the pleadings and motions previously filed and further waived the right for public sale of the Morgan County property. The decree thereafter granted the proposal of the defendant to purchase the interest of plaintiff for the net sum of $425,000, payment to be made in cash within sixty days. In return, plaintiff was directed to convey by deed her interest to defendant.

In the event defendant failed to perform, sale was to be made to the second bidder for $730,000. If that bidder failed to perform, the third bid was to be accepted.

If defendant performed, the costs of court were divided equally between the parties.

Defendant did perform and paid plaintiff the $425,000. An order of confirmation was entered by agreement by the court on November 13, 1980.

On November 14, 1980, plaintiff moved for an award of attorney fees and the taxing of costs. Defendant answered that an additional attorney fee was not due as a matter of law and that if such were not the case, plaintiff should be estopped because she had previously accepted the award for her interest and waived all other matters before the court.

The court heard testimony and briefs of counsel. He then entered judgment on January 26, 1981, awarding to plaintiff an attorney fee of $45,000. Defendant appeals.

In the case of Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976), the court discussed at considerable length previous decisions of the appellate courts of Alabama relating to the power of trial courts to award attorney fees to the wife in divorce cases. Our conclusions from the decisions cited and quoted from in Jernigan were stated as follows:

The rationale of the decided cases is apparently that the trial court’s power to award attorney’s fees upon rendition of original decrees is retained with respect to modification proceedings. However, that power is lost when an award becomes final. The distinction thus appears to be between enforcing the performance of an award which has already been finalized and proceedings and negotiations to change an award or which lead up to its finalization.

Jernigan at 181. The “award” referred to in this quotation is that of alimony. In divorce cases, the right to attorney fees is an incident to alimony. Rochelle v. Rochelle, 235 Ala. 526, 179 So. 825 (1938).

We have previously said herein that the original divorce decree providing for periodic alimony, and ordering various aspects of property division and settlement of equities between the parties, including settling their respective interests in the Morgan County farm, was final in all respects and affirmed upon appeal. That decree included an award of attorney fees to the wife for the services of her attorney in obtaining such awards. There can be no question but that the award of the interests of the parties in the farm was final and vested. It was not subject to modification. The only matter remaining to be performed was the sale of the property and a division of the proceeds as previously ordered. An award of alimony in gross or a division of property is final in all respects and not subject to modification after thirty days. DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963); Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980).

The intervening complication which precipitated the respective petitions of the parties in this case was twofold. First, defendant sought to be the purchaser of plaintiff’s interest at the market value declared by the court in its original decree. Second, it was learned that such amount was greatly less than the true value. The latter fact caused the problem and required the action of the court to redetermine the true value of the land and enforce the sale and distribution as previously ordered. Even with the reservation of jurisdiction in the decree of 1978, there could not have been a modification of the determination of the equities and the division of the interest of the parties which was finalized in 1978. DuBoise at 224, 228, 153 So.2d 778.

The result of the services of the court was a windfall to the plaintiff. Her seventy percent interest in the land brought almost twice the sum it was thought to be worth when given her by the court in 1978. We find her not entitled by law to a further award of attorney fees.

We also consider plaintiff’s action in entering the agreement to accept the sum of $425,000 from defendant as a net sum for her interest rather than causing a sale to be made to one of the bidders; waiving of all other matters pending by both parties; consenting to entry of the judgment affirming the purchase of her interest for the agreed sum; accepting the money and executing the deed for her interest and the joining in the joint petition requesting confirmation by the court of all that had been done, constitutes an equitable estoppel from claiming and receiving an attorney fee. Mazer v. Jackson Ins. Agency, 340 So.2d 770 (Ala.1976); Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966).

For these reasons, we find the court erred in its judgment of January 26, 1981, and its subsequent amendment granting an attorney fee of $45,000 to plaintiff. For such error that judgment is reversed.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

In my judgment, the trial court did not err as a matter of law in awarding an attorney’s fee in this action, although I believe the trial court did abuse its discretion in awarding an excessive amount.

A pertinent portion of the Jernigan analysis was omitted from the majority opinion:

Similarly, an award, even though embodied in a decree of divorce, which is not in sufficiently final form so that it can be performed by the parties, is subject to the power of the court so that attorneys’ fees may be awarded for services looking to its finalization.

Jernigan v. Jernigan, supra, at 181.

From the events which transpired after the rendition of the decree of divorce, it appears to me that the award was “not in sufficiently final form” so that it could be performed by the parties.

Put another way, the trial court in the later proceedings was not merely enforcing the performance of an award which had already been finalized. The award was final only in reference to the percentage of the proceeds each party would receive upon the division and sale of the property. Jurisdiction was retained until a sales price could be obtained and the property sold.

The outcome of the proceedings for which the wife is now requesting an attorney’s fee was a determination of the sales price and a sale of the property. This was more than enforcing a final order. The setting of a purchase price and ordering the property to be sold with a sum certain to be distributed to the wife was a finalization of the award initially set out in the decree of divorce.

Before the trial court acted, the record indicates the wife could not sell the property and thus could not determine the value of her seventy percent interest in the farm. In other words, this was not a self-executing agreement. Jernigan v. Jernigan, supra. The husband forced the wife to come into court to defend against his unfounded claim “to redeem” the property. The trial court judicially noted that prospective purchasers are hesitant to enter into agreements to buy land which might be involved in litigation.

The services of an attorney were necessary for the negotiations and court proceedings which eventually resulted in a determination of a sales price and the actual sale of the property. For this reason, I would allow the wife’s attorney to be reasonably compensated for the services which led to the finalization of the award.

The majority opinion states that the wife was equitably estopped from claiming and receiving an attorney’s fee. I disagree.

Estoppel is an affirmative defense which must be specially pleaded. Kimbrell v. City of Bessemer, 380 So.2d 838 (Ala.1980); Rule 8(c), A.R.C.P. The husband’s pleadings in the instant action state that “an allowance of attorney’s fee is inconsistent with and contradictory to the waiver of the [wife] in open court of a revision of the division of the proceeds. ... ” This allegation, unaccompanied by allegations that the husband relied on the wife’s action, and, as a proximate result of such reliance suffered injury, is not sufficient to raise the issue of estop-pel in the pleadings. Hendricks v. Blake, 291 Ala. 575, 285 So.2d 82 (1973).

Furthermore, the husband failed to prove estoppel at the hearing on the attorney’s fee. The three basic .elements of equitable estoppel are:-

The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.

Mazer v. Jackson Insurance Agency, supra, at 773, quoting Dobbs, Remedies § 2.3 (1973).

The burden of proving estoppel rests upon the party invoking it. First National Bank of Montgomery v. United States, 176 F.Supp. 768 (M.D.Ala.1959), aff’d, 285 F.2d 123 (5th Cir. 1961); Walls v. Downing, 206 Ala. 201, 89 So. 503 (1921). The husband produced no evidence at the hearing on any of the elements of estoppel. Indeed, no testimony at all was offered on behalf of the husband. The only two witnesses at the hearing testified for the wife.

The husband’s failure to properly plead and prove estoppel precludes him from prevailing on the issue of equitable estoppel on appeal. See Andrews v. John E. Smith Co., 369 So.2d 781 (Ala.1979); Hendricks v. Blake, supra. In sum, the wife was not estopped from claiming and recovering an attorney’s fee.

The husband in brief additionally contends that the learned trial judge abused his discretion in the amount of the attorney’s fee.

In view of all the circumstances as indicated in the majority opinion and my dissent, I agree. I place particular emphasis on the fact that a substantial fee had previously been awarded. It would appear, to me, that an additional fee of $15,000 would be appropriate.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Jerry HILL and Kenneth Downing v. STATE.
    5 Div. 513.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Rehearing Denied Nov. 24, 1981.
    Certiorari Denied, Jan. 29, 1982 Alabama Supreme Court 81-218.
    John R. Formby, Jr., Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellants were convicted of violating the Alabama Compulsory School Attendance Law. The District Attorney filed two complaints against each appellant and the four cases were consolidated for trial before a jury. The jury returned four verdicts of guilty as charged in the complaints and the trial judge sentenced appellant Hill to thirty days hard labor in the Elmore County Jail and assessed a fine of one dollar against him on the first case. On the second conviction of appellant Hill the trial judge sentenced him to ninety days hard labor in the Elmore County Jail and assessed a fine of one hundred dollars against him. Identical sentences were imposed on appellant Downing. After the sentences were imposed each appellant gave notice of appeal and the four cases were consolidated on appeal.

The District Attorney’s complaints charged that each appellant was the parent, guardian or other person having control or charge of a child between the ages of 7 and 16 years, who is required to attend school or to be regularly instructed by a private tutor, and that within twelve months before the commencement of this prosecution, each appellant “did unlawfully fail to send said child to school or fail to have said child enrolled in school or to have said child instructed by a private tutor during the time said child was required to attend a public school, private school, denominational school, or parochial school, or be instructed by a private tutor, or to require said child to regularly attend such school, or tutor, against the peace and dignity of the State of Alabama.”

Appellants waived the reading of the complaints and pleaded not guilty to each one. It was stipulated between the State and appellants that Jerry Hill was a parent, guardian, or other person having control or charge of the child Jason Hill, and that Kenneth Downing was a parent, guardian, or other person having control or charge of the child Tracy Downing. It was further stipulated that each child was at that time nine years of age and was eight years of age at the time of the commencement of the prosecution. The facts established that the written notices required by law were served upon appellant Hill on September 14, 1979, and January 24, 1980, respectively, and that more than three (3) days after the service of each notice warrants were secured for the arrest of Hill on September 21, 1979, and January 31, 1980, charging him with two cases of violating the Alabama Compulsory School Attendance Law. The facts further established that the written notices required by law were served upon appellant Downing on November 9, 1979, and January 24, 1980, and that more than three (3) days thereafter warrants were secured on January 3, 1980 and January 31, 1980, charging him with two cases of violating the Alabama Compulsory School Attendance Law.

Mr. Leon Robinson, the Attendance Supervisor for the El more County Board of Education, testified that it was his job to periodically check the various schools to make sure that the children who are supposed to be enrolled in school are regular in attendance. He knew of the child, Jason Hill, the son of Jerry Hill and knew that appellant Hill was the parent, guardian or other person having control or charge of Jason and that they lived on Hillcrest Road in Elmore County. He had been to this residence and knew that Hill resided there with his son.

He further testified concerning the two written notices given to each appellant about their children, Jason Hill and Tracy Downing, not being enrolled in or attending public schools in Elmore County. He stated that warrants were sworn out after appellants refused to comply with the law. The following is the type of notice served upon both appellants and naming each of them:

“ELMORE COUNTY BOARD OF EDUCATION
Elmore County Courthouse
P.O. BOX 617
Wetumpka, Alabama 36092
JOHN C. WHATLEY BOARD MEMBERS
Superintendent
E. H. DEAN
CARL RAY PARKER Vice President
Board President
KENNETH LAZENBY
JULIA MAXIE
K. R. MURCHISON
State of Alabama
County of Elmore
Notice to Enroll Children In School
To: Jerry Hill_ Rt 1 Box 340 Hillcrest Rd. Deatsville, Ala._»
the parent, guardian or other person having control of Jason Hill a minor over the age of seven years and under the age of sixteen years:
“Pursuant to the authority contained in Sections 16-28, 1 thru 23, of the Code of Alabama of 1975, you are hereby respectfully informed that the laws of Alabama require the enrollment and attendance of the minor(s) hereinabove listed in a public school, private school, denominational school, parochial school or to be instructed by a competent private tutor.
“It appears that the above minor(s) is not presently enrolled or attending in any of the above listed programs and the attendance officer has investigated such and no valid reason for nonenrollment or nonattendance of said minor(s) has been found and said investigation disclosed that said enrollment or nonattendance was without valid excuse or good reason and intentional.
“You are hereby officially notified that you must enroll or cause to be enrolled the above listed minor(s) on or before the expiration of three days from service of this notice and cause said minor’s attendance in one of said specified programs.
“If the above minor(s) is not enrolled and attending in one of the programs herein-above mentioned, beginning on the fourth school day after service of this notice, criminal prosecution will be brought against you, a warrant of arrest will be issued for you, because of your failure to have said minor enrolled and attending as hereinabove set forth.
“You are further informed that each day that the minor hereinabove listed fails to be enrolled and attend school will constitute a separate offense against the laws of Alabama and further or additional criminal prosecutions may be commenced against you for each such offense without further notice.
“In witness whereof I hereby set my hand and seal this 24th day of January . 1980.
Leon Robinson
Signature Attendance Officer
Elmore County School System
“Form Revised 1/17/80”

Mr. Robinson had a conversation with appellant Hill about his school age child who was not enrolled in a public school in Elmore County and Hill admitted that he did have a son who was not attending school because he did not believe in compulsory education due to his religious beliefs. Mr. Robinson further testified that Hill did not tell him that he was sending his child to a certified private school, denominational school, parochial school, or that his son was being taught by a certified and licensed private tutor. Mr. Robinson stated that both Hill and Downing were personally served with a copy of the written notice set out above.

Mr. Robert Fenn, the principal of Robinson Springs Elementary School, testified that he knew both appellants and knew where they lived. A child eight or nine years old living with appellants would attend Robinson Springs Elementary Schools. According to the school records the two children of appellants were not enrolled in and attending school from September 14, 1979, up to January 31, 1980. No one had given appellants or their children permission or consent not to be enrolled in or to be absent from school.

Appellants did not testify or present any evidence in their behalf. They made a motion to exclude the state’s evidence on several grounds. They also moved to quash the warrants and dismiss the charges against each of them. After a lengthy argument this motion was overruled and denied.

Appellants contend that their guarantees of religious freedom are violated by the Alabama Compulsory School Attendance Law. This case raises the precise issue and is based on almost identical facts as Hill v. State, Ala.Cr.App., 381 So.2d 91. The appellants in Hill, supra, as in the present case, attacked the constitutionality of forced school attendance on freedom of religion grounds. This court in Hill found that the statute did not violate freedom of religion. The case was reversed by the Alabama Supreme Court but on other grounds, viz., that the notice requirements must be strictly followed. Proper notice was given in the present case. There is no merit in appellants’ freedom of religion claim.

Appellants contend the Compulsory School Attendance Law is unconstitutional in that it attempts to establish certain elements which, if proven, would constitute a prima facie case of guilt and thus impermis-sibly shift the burden of proof from the State to the defendants. We do not agree.

In Wells v. State, Ala.Cr.App., 378 So.2d 747, this court held that a statute that presumed a violation of the statute if certain elements were met (possession of credit cards not in defendant’s name without the cardholder’s consent) did not impermissibly shift the burden of proof from the State to the defendant. The court cited with approval the case of Griggs v. State, 37 Ala.App. 605, 73 So.2d 382, as holding that “It is now well established that a legislative body may provide by statute that certain facts may be prima facie or presumptive evidence of other facts, provided that reason and experience connect the ultimate fact presumed with the facts proved. Such statutes are within the powers of the legislative body to enact, they are not considered an infringement upon the judiciary, and are not violative of any other constitutional provisions.”

The court in Wells, supra, further stated that the legislatively created aid to the prosecution in proving a prima facie case did not relieve the prosecution of the burden of proving the defendant guilty beyond a reasonable doubt and to a moral certainty. The court stated, “Once this presumption is shown, it is incumbent upon the defendant to explain his possession (of the missing credit card) consistent with honesty or rest under the assumption that he had stolen it” (Emphasis added.) The defense in the instant case rested under the presumption of guilt as prescribed by Section 16-28-12, Code of 1975, assuming a prima facie case was proven. This statute provides that the absence of a child without the consent of the principal teacher of the school he attends or should attend or the tutor who instructs or should instruct such child shall be prima facie evidence of the violation of the above cited Code Section.

The State presented more than ample evidence to prove beyond a reasonable doubt and to a moral certainty that appellants unlawfully violated Alabama’s Compulsory School Attendance Law.

Appellants raise for the first time on appeal the issue of double jeopardy contending that the second conviction violated their constitutional protection from double jeopardy. The proper method to raise the issue of former jeopardy was by special plea and, in the absence of such a plea, the issue is not properly before the Court of Criminal Appeals. Malone v. State, 55 Ala.App. 189, 314 So.2d 108; Anthony v. State, 49 Ala.App. 462, 273 So.2d 222, certiorari denied, 290 Ala. 361, 273 So.2d 227; Steward v. State, 55 Ala.App. 238, 314 So.2d 313, writ denied, 294 Ala. 201, 314 So.2d 317; Simpson v. State, Ala.Cr.App., 354 So.2d 317, certiorari denied Ex parte Simpson, 354 So.2d 324.

Finally, appellants claim that the prosecutor made improper remarks during his closing argument to the jury wherein he stated, “Now, what has he said (inaudible) legal defense in offering you any kind of evidence? Nothing. I believe ...” Appellants objected and the court stated, “There’s nothing been said about these defendants failing to testify.”

In Simpson v. State, Ala.Cr.App., 354 So.2d 317, certiorari denied, Ala., 354 So.2d 324, this court held:

“There is no uniform legal standard by which to review the prejudicial effect of improper remarks made by the prosecutor during trial. Each case must be reviewed on its own merits. Beckley v. State, Ala.Cr.App., 335 So.2d 244 (1976); Atchison v. State, Ala.Cr.App., 331 So.2d 804, cert. denied 331 So.2d 806 (Ala.1976). Much discretion is left to the trial court in determining whether the statement is prejudicial to the defendant. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Bullard v. State, 40 Ala.App. 641, 120 So.2d 580 (1960); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied 295 Ala. 426, 324 So.2d 333 (1975). From our review of the record, we do not find that the district attorney’s statement, although improper, was prejudicial to appellant or that the trial court’s action in overruling his objection was reversible. Scroggins v. State, Ala.Cr.App., 341 So.2d 967 (1976); Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied 291 Ala. 772, 286 So.2d 72 (1973).”

We have carefully searched the record for errors injuriously affecting the substantial rights of appellants and have found none.

The judgments of conviction are affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Lloyd Burnell PHELPS v. STATE.
    1 Div. 247.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-329.
    Floyd C. Enfinger, Jr. of Lacey & En-finger, Fairhope, for appellant.
    Charles A. Graddick, Atty. Gen. and Mar-da J. Walters, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

The appellant was indicted by the grand jury of Baldwin County for the offense of murder in the . first degree. He was charged with the premeditated killing of Charles Phillips by shooting him with a pistol.

On July 18, 1978, the Honorable E. E. Ball was appointed to represent the appellant. On behalf of the appellant, Mr. Ball requested a mental examination of the appellant and the motion was granted. On November 6, 1978, Mr. Ball was allowed to withdraw as appellant’s counsel and the Honorable Tom Underwood was appointed by the court to replace Mr. Ball as the appellant’s counsel.

On November 15, 1979, the appellant pleaded guilty to the reduced charge of murder in the second degree and was sentenced to ninety-nine years and one day in the State penitentiary.

On November 25,1980, the appellant filed a pro se motion for a new trial and, after a hearing on January 7, 1981, the trial court denied the motion.

I

The appellant contends that he was denied the effective assistance of counsel when he entered his guilty plea. First, he maintains that the district attorney did not abide by plea negotiations agreed upon by the parties. He insists that he was promised a twenty-year sentence on a reduced charge of murder in the second degree in exchange for his plea of guilty. Further, he asserts that he was notified on the day prior to his scheduled trial that his court-appointed counsel had withdrawn, and he was then faced with the situation of either pleading to the charge or losing the services of his attorney. The appellant avers that he should have been allowed to withdraw his plea and have a trial by jury. This, the appellant complains, was a denial of his constitutional right to effective assistance of counsel.

The appellant’s plea of guilty was accepted on November 15, 1979, after extensive questioning of the appellant by the court.

In the exchange between the court and the appellant the judge discussed the constitutional rights the appellant would forfeit by a plea of guilty and informed him of the possible sentence which could be imposed. The appellant stated that he understood the rights he was giving up by pleading guilty. The court inquired of the appellant whether he had explained to his appointed counsel the facts of the offense and his, the appellant’s, involvement. The court also asked whether the appellant understood that he was charged by way of indictment with murder in the first degree. To both of these inquiries, appellant’s response was in the affirmative.

Prior to the prosecutor’s recommendation that the court sentence appellant to ninety-nine years and one day, the court inquired whether anyone had promised the appellant, his family, or anybody else a reward in exchange for the guilty plea, to which the appellant answered, “no sir.” Also, the court inquired of the appellant whether he had been promised a lighter sentence, a particular sentence, probation, or any favor to get him to plead guilty, and the appellant responded that he had not been given any such assurances.

The court then inquired of the appellant how he pleaded to the charge of murder in the second degree and he replied that he was guilty. After adjudging the appellant guilty, the court asked the appellant if he had anything to say as to why sentence should not be passed upon him and the appellant replied, “no sir.” Under the foregoing facts, it is clear that the trial judge made adequate inquiries under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that appellant’s challenge to his guilty plea is not well taken.

During the hearing on the motion for a new trial, the district attorney testified that he had not made any agreement with the appellant or his attorney regarding a twenty-year sentence on a reduced charge of murder in the second degree.

The conflict in the testimony concerning the promise of a recommended twenty-year sentence presented a question of fact to be resolved by the trial court at the conclusion of the hearing on the motion for new trial. It is not the province of this court to pass on the truthfulness or falsity of the conflicting evidence. May v. State, Ala.Cr.App., 335 So.2d 242 (1976); Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973). It is evident from the record that the appellant voluntarily, intelligently and understandingly entered his plea of guilty. Boykin v. Alabama, supra.

The burden of establishing a claim of ineffective assistance of counsel rests with the appellant. Harris v. State, Ala.Cr.App., 367 So.2d 524 (1978), cert. denied, Ala., 367 So.2d 534 (1979). See also Harried v. United States, 389 F.2d 281 (D.C.Cir.1967). Relief on this ground will be granted only when the trial was a farce or mockery, shocking to the conscience of the reviewing court, the representation was perfunctory, or there was inadequate opportunity for conference and preparation. Williams v. Beto, 354 F.2d 698 (5th Cir. 1965).

The only evidence presented by the appellant in support of his contention was a letter written to him by his appointed counsel one day prior to the scheduled trial. That letter, bearing the date May 8, 1979, omitting the formal parts, reads as follows:

“I have talked with Jim Hendrix in an effort to try to settle your case for first degree murder. Jim has not made up his mind as to what, if any, recommendation he can make to the trial Judge in the event you should plead guilty. I am sure you realize that the District Attorney is in a precarious situation since Sharon Phillips was acquitted. If she had been found guilty, he would be justified in recommending a much shorter sentence for you.
“In light of your testimony in the two trials against Sharon, I see no meritorious defense, and if you stand trial, there is no doubt but that you will be found guilty of first degree murder, and receive a life sentence. In other words, any sentence you receive that is less than life imprisonment will be a good deal. Your involvement in the case was too great to expect much clemency especially in view of Sharon being acquitted.
“Jim Hendrix is giving careful consideration to your case and is trying to make a decision as to what recommendation, if any, he could make to Judge Wilters concerning your sentence. He has agreed to call me if*he reaches any decision this week; otherwise, I plan to meet with him Monday morning, May 14, and try to come to some decision without trial. If an arrangement cannot be reached which meets with your satisfaction, and it becomes necessary to try the case, I believe we could continue the case for one more term of Court, and I will file a motion to withdraw as your attorney in order that you might get an experienced criminal trial lawyer to handle the trial. I do not specialize in criminal work and, therefore, feel that if you have to stand trial, an attorney with a lot of experience in criminal work should be appointed to represent you.
“Jim has already advised me that there is no way he can recommend a ten-year sentence as you mentioned in your last letter to me. After talking with Jim Monday morning, I will come over to the jail and discuss with you the results of my meeting with him.
“Yours very truly,
“/s/ Thomas
“Thomas W. Underwood, Jr.”

The appellant asserts that the proceeding below was a “mockery of justice” since he was advised only one day prior to the scheduled trial that his attorney was not sufficiently experienced to try his case. Appellant argues that he was faced with the dilemma of choosing to plead guilty or losing the representation of his appointed counsel.

(1) In his letter, appointed counsel merely states that if the arrangement concerning plea negotiations was not satisfactory to the appellant then counsel would seek a continuance and withdraw from the case, thereby allowing the appellant to have a more experienced criminal trial lawyer handle the trial. (2) In our judgment, the offer to withdraw under these circumstances displayed, in words of Mr. Bell, a witness for the appellant, “a lot of candor and integrity on the attorney’s part.” (3) In addition, we believe that the last sentence in the second paragraph of the letter which states, “Your [appellant’s] involvement in the case was too great to expect much clemency” demonstrated definite concern for the appellant’s situation and indicated insight into the case by court-appointed counsel in the desire to make sure the appellant had the best representation available. (4) Counsel’s letter did not, in our judgment, indicate that he was ineffective.

Although he may not have had the experience in criminal work that some other attorneys in that county possessed, he had, according to the testimony of Mr. Bell, been practicing law for about eight years and had been, as other lawyers in that county, appointed criminal cases on a rotation basis. The judge observed that appointed counsel had adequately and effectively represented many criminal clients in that county previously.

Under these circumstances, we do not believe that the appellant has carried the heavy burden of showing that appointed counsel was incompetent and ineffective.

The appellant also complains that his counsel’s incompetence and ineffectiveness was demonstrated when he failed to advise the appellant of his rights to withdraw his plea of guilty in a broken agreement situation.

The Supreme Court of the United States in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) recognized that the failure of the prosecution to keep its plea bargain requires either specific performance of the agreement or the opportunity for the accused to withdraw his plea. Further, the court observed, “The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id. at 261-62, 92 S.Ct. at 498. [Emphasis added].

In the present case, at the time the plea of guilty was received, the appellant made no mention that an agreement by the prosecutor had been broken. As a matter of fact, when the court made inquiry of the appellant if he had “anything to say as to why the sentence of law. should not be passed,” he responded, “no, sir.” Without such an indication that appellant was dissatisfied with the prosecutor’s recommendation, the court cannot be held accountable for not acting.

The first indication of appellant’s dissatisfaction with the plea negotiations occurred when he filed his pro se motion for a new trial on November 25, 1980, more than a year after the plea of guilty had been received and long past the time allowed for such a motion.

At any rate, viewing the appellant’s motion for a new trial in the best light, we consider it as a petition for error coram nobis, despite the absence of an assertion of innocence and claim of a valid defense, both of which are generally fatal to a petition for the writ, see Chatom v. State, Ala.Cr.App., 366 So.2d 1143 (1979), and we conclude that the appellant did not carry the heavy burden of showing that his appointed counsel was ineffective.

Therefore, the judgment and conviction by the Baldwin Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    David Neal SCROGGINS v. STATE.
    3 Div. 413.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-402.
    Howard Bryan, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Bill North, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from a judgment of conviction and sentence in each of five separate cases bearing Circuit Court Numbers 81-062, 81-063, 81-064, 81-065 and 81-066, which were respectively based upon indictments for robbery, robbery, kidnapping, grand larceny, and both burglary and grand larceny. The judgment was rendered in each case on a plea of guilty on a hearing at which defendant and his counsel were present and the proceedings were reported by a court reporter as shown by his transcript thereof.

According to the transcript, the hearing commenced as follows:

“THE COURT: We are calling 5 cases, CC-81-62, CC-81-63, 81-64, 81-65 and 81-66, all indictments against David Neal Scroggins, who is present here with his attorney, Howard F. Bryan. Now, Mr. Scroggins, there has been presented to me these five docket entry Exhibit A’s. Did you go over these with Mr. Bryan?
“MR. DAVID NEAL SCROGGINS: Yes, Your Honor.
“THE COURT: You are charged here with 2 charges of robbery, a charge of kidnapping, a charge of grand larceny and a charge of burglary and grand larceny. Now, have you had an opportunity to discuss each one of these 5 cases with your attorney?
“MR. DAVID NEAL SCROGGINS: Yes, Your Honor.”

Thereupon, in an extended colloquy among the court, defendant and defendant’s counsel, the defendant made it known to the court that he understood what he was doing, that he fully understood the charges against him, that he was guilty as to the charge in each indictment, and that he voluntarily, intelligently, knowingly and understandingly, without any inducement whatever, desired to change his plea in each case from a plea of not guilty to a plea of guilty. His counsel confirmed the defendant’s statement as to his further understanding of the consequences of a plea of guilty and his waiver of all rights guaranteed to him under his plea of not guilty.

In the transcript there is also what purports to be a two-page list of typed questions addressed to the defendant while attended with his attorney at the hearing, which is largely a duplication of the colloquy among the court, defendant and his counsel, which is not signed by defendant, but there is attached to it the following signed statement of defendant:

“I was an escapee from the Maxwell A.F.B., Federal Prison when I came up on this trailer on the river. I broke a glass, unlocked the trailer, went in and spent the night. The next morning I took a shotgun that was in the trailer (CC-81-66) and was fixing to leave when these two men came in. I pointed the gun at them and told them to lay down. I then told them that I didn’t have any money, one of them gave me $139.00 (CC-81-062) and the other gave me $12.00 (CC-81-063).
“I told the men that I wanted tototo [sic] a railroad yard. Then I took the one that owned the truck and had him drive me to a railyard where I tied him up and left him. I took this truck with me (CC-81-065) and abandoned it so I could get on a train.
“I heard the police search so I got off the train and went up to a yard where there was a car that was for sale. A stranger in plain clothes came up, he told me to come over to his car that he was an auxiliary deputy sheriff. I went over and he searched me. He then got into his car to call on his CB, I ran and he got out of the car and shot me. While I was laying on the ground bleeding a deputy came up and arrested me.”

It is to be noted that in the statement of defendant as to the several facts that took place, there is separate reference as to each separate incident in each of the numbered cases except CC-81-064, charging kidnapping. It appears that the sentence “[tjhen I took the one that owned the truck and had him drive me to a railyard where I tied him up and left him" is referable to CC-81-064. This is confirmed by the following portion of the colloquy:

“THE COURT: AH right. With respect to 81-64, which is a kidnapping charge, how do you plead, guilty or not guilty?
“MR. DAVID NEAL SCROGGINS: Guilty.
“THE COURT: Tell me briefly what you did in this case?
“MR. DAVID NEAL SCROGGINS: I told the man to get in his truck and take me to some railroad tracks, where I left him at.
“THE COURT: In other words, you took him away by force from the place where he was?
“MR. DAVID NEAL SCROGGINS: Yes, sir.”

Appellant does not challenge the sufficiency of the hearing on defendant’s request to withdraw his plea of not guilty and enter a plea of guilty to meet the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and subsequent cases, relative to the determination by the court of the voluntary, intelligent and understanding nature and consequences of the entry of such plea. He attacks the judgment in each of the cases on entirely different and independent grounds. We now consider them.

Appellant’s first insistence is that he was “denied his Sixth Amendment right to a speedy trial.” He contends that on March 16, 1981, he wrote the Autauga County Circuit Court District Attorney requesting that he file a motion to dismiss by reason of the State’s failure to afford him a speedy trial. The record itself does not show this letter, but it does show that on April 6,1981, the court conducted a hearing at which defendant appeared “in his own proper person and by his attorney” on an oral motion in each of the five cases to quash the indictment, which motion was denied. The indictment in each case was returned on September 16, 1980. There is nothing in the record to indicate any effort on the part of defendant prior to April 21, 1981, when he was adjudged guilty and sentenced, to be brought to trial. Under the circumstances as a whole, we think the State passes the balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In addition, we hold that the voluntary and intelligent guilty plea of defendant in each case waived all non jurisdictional matters. Roden v. State, Ala.Cr.App., 384 So.2d 1248 (1980); Harris v. State, Ala.Cr.App., 367 So.2d 524, cert. denied, 367 So.2d 534 (1978); Lancaster v. State, Ala.Cr.App., 362 So.2d 271, cert. denied, 262 So.2d 272 (1978).

The court sentenced defendant in Case No. CC-81-062 “for a period of 30 years as punishment for his crime, said sentence to run concurrently with sentence he is serving in Federal Penitentiary.” The sentence in 81-063 was made concurrent with the sentence in 81-062 and his “federal time.” In each of the other three cases, he was sentenced to imprisonment for ten years, with the sentence to run concurrently with the sentence in 81-062 and with his “federal time.”

It appears that appellant has no grievance with the sentence in any of the five cases. He relies entirely upon what he says occurred months before he was convicted on his pleas of guilty, particularly his claim that he was denied his Sixth Amendment right to a speedy trial and that when he was arrested he “was shot by an Auxiliary Deputy Sheriff without probable cause.” As appellant does not challenge the sufficiency of the hearing on the pleas of not guilty or question the validity of the sentences imposed in the five cases, it appears that he does not seek a reversal and re-mandment for a new trial on pleas of not guilty. Nevertheless, we note that notwithstanding the scrupulous efforts on the part of the trial court to follow the pattern set forth in the Ireland form as exhibited in Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971), there was a failure in one respect. In the statement to defendant as to the punishment for robbery, he was correctly informed as to the minimum punishment of ten years’ imprisonment but was not informed as to the maximum punishment. Under the then applicable statute, Code of Alabama 1940, Recomp. 1958, Title 14, § 415, the punishment was “by death, or by imprisonment in the penitentiary for not less than ten years,” but the death penalty was eliminated from the section by the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Jones v. State, 50 Ala.App. 62, 276 So.2d 647 (1973). Although the maximum, as well as the minimum, punishment for a crime to which defendant prepares to plead guilty should be stated to him, the defendant could not have been influenced to insist on his plea of guilty by the fact that the record does not show that he was informed that the applicable maximum was life imprisonment.

The judgment of conviction and sentence in each of the cases included in this consolidated appeal should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . The omission of “0” immediately before the last two digits in the number of each case seems to be a self-correcting clerical error, which also applies elsewhere in the transcript.


author: BOWEN, Judge.

text:
    Quenton S. HIGHTOWER v. STATE.
    6 Div. 711.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.
    Rehearing Denied Dec. 29, 1981.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-337.
    Gary K. Grace of Henderson & Grace, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

This is an appeal from the Circuit Court’s denial of Hightower’s petition for writ of error coram nobis.

On April 21, 1978, Hightower was convicted of securities fraud in the Circuit Court of Lamar County. Sentence was three years’ imprisonment and a $5,000.00 fine. The remainder of the facts are substantially identical to those of the related cases of Charles J. Steen and Geraldine Steen v. State, Ala. 79-446 (Ms. September 26, 1980), 14 A.B.R. 2800, on rehearing 15 A.B.R. 571 (Ms. February 6,1981).

“Following timely notices of appeal, Petitioners filed for numerous extensions of time to allow completion of the transcripts. These extension requests were granted by the Court of Criminal Appeals.

“In January of 1980, Petitioners were informed that the trial court reporter had died, and that a new court reporter had been assigned to transcribe the trial notes. Petitioners immediately made application to the new court reporter to proceed with the transcriptions. The new reporter declined because of the difficulties encountered in transcribing another reporter’s notes. The State of Alabama, on February 7, 1980, filed a Motion to Dismiss the Steens’ appeal, which Motion was granted without opinion. Petitioners’ subsequent attempts to have this order vacated resulted in the following order by the Court of Criminal Appeals:

“ ‘It appearing to the Court of Criminal Appeals that obtaining transcripts of the trials in the above-styled causes is impossible, it is hereby ordered that the motion to set aside dismissals and reinstate appeals be and the same is hereby denied.’ ”

This Court overruled Hightower’s application for rehearing on February 22, 1980. Instead of seeking a review of this Court’s order dismissing his appeal by applying to the Supreme Court of Alabama for a petition for certiorari, Hightower returned to the circuit court. Before this Court denied his application for rehearing, Hightower filed a “Motion For New Trial or In The Alternative, Motion For A Re-Trial” on February 14, 1980, in the circuit court. On February 22, 1980, Hightower also filed a “Motion for Error Coram Nobis” in the Circuit Court of Lamar County. At the hearing on the petition for writ of error coram nobis, Hightower attempted to prove, through the testimony of his attorney, that despite his efforts, he had been unable to obtain the court reporter’s transcript of his trial proceedings. On July 17, 1981, the circuit court denied Hightower’s petition for writ of error coram nobis. From this judgment, Hightower appeals.

Hightower’s petition for writ of error cor-am nobis was properly denied.

Initially, we note that a petition for writ of error coram nobis does not lie for the grounds asserted by Hightower. A writ of error coram nobis brings a judgment before thé original trial court for correction because of an error of fact not evident from the face of the record that would have prevented the judgment. The error of fact must have been unknown to the court and to the convicted party at the time of the trial. Smith v. State, 245 Ala. 161, 16 So.2d 315 (1944). The writ has the effect of “a motion for a new trial on the ground of newly discovered evidence.” Groce v. State, 48 Ala.App. 709, 711, 267 So.2d 499 (1972). “The office of the writ of error coram nobis is not that of a delayed appeal but rather is the vehicle to seek review of matters which were not known or could not have been reasonably discovered within the time for taking a direct appeal.” Mayola v. State, 344 So.2d 818, 822 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977).

“Coram nobis is not an omnium gatherum or catchall of accordion like remedies to solve (or salve) all the supposed wrongs of those once duly convicted. Rather it is, in Alabama, a writ to prevent fraud in the procurement of judgments in our courts.” Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976). Above all, the writ is not a substitute for other remedies such as an appeal, Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, Ex parte Goodman, 387 So.2d 864 (Ala.1980), or a writ of certiorari. Ex parte Gammon, 255 Ala. 502, 52 So.2d 369 (1951); Ex parte Anderson, 41 Ala.App. 620, 147 So.2d 862 (1962).

The cases are legion which hold that the writ of error coram nobis is not intended to provide review by appeal where the complaining party has not sought appeal and the time for appeal has long since expired. Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966). A petition filed within the time that an appeal could have been taken should be dismissed. Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969).

In this case the petition for writ of error coram nobis was filed within the time that Hightower could have filed a petition for writ of certiorari to the Supreme Court of Alabama to review the propriety of the order of this Court dismissing- his appeal as was done by the defendants in the Steen cases. See generally Postconviction Remedies in Alabama, 29 Alabama Law Review 617, 635 (1978); Comment, The Writ of Error Coram Nobis in Alabama, 2 Ala.L. Rev. 281 (1950).

Hightower is attempting to use this appeal from the denial of his petition for writ of error coram nobis to review the order of this Court dismissing the appeal of his conviction. This is evident from the first sentence of the Argument section of his brief on appeal which reads: “It is clear from the facts of this case that the defendant, High-tower, was denied procedural due process in the dismissal of his appeal by the Court of Criminal Appeals ...” In fact, Hightower’s entire brief is directed to the issue that this Court erred in dismissing his appeal.

In brief Hightower acknowledges that he is seeking an appeal of his conviction: “All Hightower wants is an opportunity for judicial review of the evidence presented at the trial of his case.” This is not the office or function of coram nobis. Only a new trial is obtained if coram nobis is granted. 29 Ala.L.Rev. at 634 and authorities cited.

Furthermore, we note that Hightower’s “Motion for Error Coram Nobis” is totally inadequate as a petition for writ of error coram nobis. It alleges no grounds upon which the writ could or should be granted, it contains no allegation that Hightower is innocent or has a valid defense to the crime for which he stands convicted, Seibert v. State, 343 So.2d 788 (Ala.1977), and it does not describe the specific facts on which Hightower bases his claim that his rights were invaded. Thomas v. State, 274 Ala. 531, 150 So.2d 387 (1963). Generally see A. Cates, Post Conviction Remedies, 28 Ala. Law. 257, 271 (1967).

After his appeal was dismissed by this Court, Hightower’s only legal and proper remedy was through petition for writ of certiorari in the Supreme Court of Alabama. Rule 39, A.R.A.P. By the very nature and function of the writ and by the limited jurisdiction of the circuit court, a petition for writ of error coram nobis in a circuit court cannot be used as the vehicle to review a judgment of this Court. The judgment of the circuit court denying High-tower’s “Motion for Error Coram Nobis” is affirmed.

AFFIRMED.

All Judges concur.


text:
    Gerald Wayne NUNNERY v. STATE.
    1 Div. 272.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-412.

      John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal from a judgment of conviction and sentence in each of six cases, State of Alabama v. Gerald Wayne Nunnery, that appellant in his brief subcaptions immediately under the caption “STATEMENT OF THE CASE” as follows:

“CHARGES: Burglary Third Degree. CC 80-947
Burglary Third Degree. CC 80-948
Burglary Third Degree. CC 80-949
Burglary Third Degree. CC 80-2317
Burglary Third Degree. CC 80-2318 Possession of a Pistol. CC 80-2319 after a conviction of a crime of violence
“Plea: Guilty as charged in all cases.
“SENTENCE: Life Imprisonment in all cases, sentences to run concurrently.”

The first issue presented by appellant is, “Whether the court erred in failing to inquire further into the defendant’s competence to stand trial.” The reference is to the first part of the transcript of the proceedings as follows:

“THE COURT: All right, the defendant will step before the Court. This is State vs. Gerald Wayne Nunnery, Case No. CC 80-947, CC 80-948, CC 80-949.
“MR. BRUTKIEWICZ: Judge, before we start, I would like to make a motion for the record. We have already discussed this; I want to make sure it is down on the record in this case. The fact that Mr. Nunnery has indicated that he has been ordered to Searcy Hospital for evaluation, and we would renew our motion that the case be continued until Mr. Nunnery has a chance to go to Searcy Hospital for that evaluation.
“Now, your Honor has denied my motion, and has told me that the case is going to be tried today, and being left with those options ...
“THE COURT: I don’t think the Court said that, Mr. Brutkiewicz. I said the case was regularly set for trial, and has been regularly set for trial. And I said the record reflected that there was no motion granted in behalf of this defendant by any Judge in this Court, or any other Court, as his record would reflect, as to any request for any examination. And the record would have to reflect that. Now, your statement to the Court is on record that the defendant himself has advised you that he’s made some request for psychological evaluation is on the record, this record, but as to the official court record, the docket sheet, there is no reflection whatsoever by you, or any other attorney or by the defendant on his own behalf.
“MR. BRUTKIEWICZ: Yes, sir, so you are denying my motion for a continuance?
“THE COURT: I already denied it once, I’ll deny it again.
“MR. BRUTKIEWICZ: Fine.
“THE COURT: Now, at this time if you wish to state to the Court that you believe that there is evidence in your opinion as to why you think this defendant is incompetent, it is your duty as his attorney to state that to the Court.
“MR. BRUTKIEWICZ: Judge, that’s all we have to say.
“THE COURT: Now, I have before the Court, now a motion filed by you, Mr. Brutkiewicz, in behalf of your client, is that right?
“MR. BRUTKIEWICZ: Yes, sir.
“THE COURT: Do you wish at this time to enter with this Court, a plea of guilty to all three charges pending?
“MR. BRUTKIEWICZ: Yes, sir.
“THE COURT: The charges of Burglary in the Third Degree, all three charges of Burglary in the Third Degree, is that correct?
“MR. BRUTKIEWICZ: That’s my understanding, Judge.
“THE COURT: In previous hearings before the Court, you have entered pleas of not guilty, and you wish to change those from not guilty to guilty, is that your position?
“MR. BRUTKIEWICZ: Yes, sir.
“THE COURT: For the record, the Court is going to inquire of this defendant certain aspects of this ‘motion to enter a guilty plea.’ I hold before me now, this motion that your attorney has filed, and you are Gerald Wayne Nunnery, are you not?
“THE DEFENDANT: Yes, sir.
“THE COURT: Did you sign your name on the back of it?
“THE DEFENDANT: Yes, sir.

Thereafter, for twenty transcript pages, there was a colloquy among the court, the attorneys and the defendant, by which it was made clear that the defendant voluntarily, intelligently and understandingly waived his right to a trial by jury and all the privileges thereof, that he fully understood the maximum and minimum punishment provided for the crime charged in each of the three cases (80-947, 80-948 and 80-949) then under consideration, and that the defendant made known to the court in open court that he was guilty as a matter of fact to the charge in each of the three cases. The transcript shows clearly also that it was made known to the defendant and the defendant understood that the State was proceeding at the time under the Habitual Felony Offenders Act. All of this can also be said as to the other three cases (80-2317, 80-2318 and 80-2319) when pleas of guilty were thereafter entered in them. No contention was then made and no contention is now made that any requirement of Boykin v. State, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, was not met in any of the six cases.

The record indicates that the trial judge was mistaken in any implication of what he said to the effect that there was no record of any order of any court in Mobile County ordering the removal of defendant from the Mobile County Jail to the Alabama State Hospital, Searcy Hospital, located in Mt. Vernon, Alabama, to remain there until he was declared to be mentally competent. Nevertheless, any such mistake is readily understandable by reason of the fact that at the time the trial judge and defendant’s counsel were engaged in the colloquy as to defendant’s motion for a continuance, the trial judge had only the first three cases, 80-947, 80-948 and 80-949 before him. As to the records in such cases, there was no reference whatever to any mental evaluation of defendant or to Searcy Hospital. It was not until after defendant’s attorney had presented a motion in each of the first three cases for the defendant to be allowed to plead guilty therein and the court had engaged in a colloquy with the defendant, as shown by three pages of the transcript, that any reference was made to the other three cases, 80-2317, 80-2318 and 80-2319. During the latter part of such colloquy, the following occurred:

“THE COURT: The last category I want to be sure that you understand, that you do not have to plead guilty to any of these three charges.
“THE DEFENDANT: Yes, sir, I understand that.
“THE COURT: But you have a right as any other defendant to submit all of these charges separately at separate trials before a jury, and have a jury determine your guilt or innocence?
“THE DEFENDANT: Yes, sir.
“If it is at all possible, I would like to get the cases that I have on Judge Zoghby’s docket on your docket. He agreed when I was before him last week, if I wanted to, I told him I wanted to get it before one Judge, and just consolidate and plead guilty to all of them. I would like to have those three cases on his docket moved on your docket where I can ...”

Thereafter, the trial judge made it known that defendant’s attorney would be required to prepare motions in the other three cases, 80-2317, 80-2318 and 80-2319, for the defendant to be allowed, if he so desired, to change his plea of not guilty to a plea of guilty, and the judge would proceed to handle the other three cases, which were not then set for trial, at a later date, when the sentence hearing was to be conducted as to the first three cases. On the date of the sentence hearing, defendant and his counsel appeared with a motion in each of the second three cases. There was a comprehensive hearing thereon, and there was an adjudication of defendant’s guilt in the last three cases, as well as in the first three cases. There was also conducted a full hearing under the Habitual Felony Offenders Act. At no time after the adjournment of the hearing on the first three cases as to the pleas of guilty until completion of the hearing of pleas of guilty in the second three cases, when judgments of conviction and sentence in all six cases were rendered, was any reference made by defendant or his attorney to the order ordering the defendant’s removal to Searcy Hospital, which at the time was contained in the records of the second three cases.

As the numbers of the cases indicate, the first three cases were docketed long before the second three cases. The record shows that the indictments in the first three cases were returned June 6, 1980, and the indictments in the second three cases were returned on December 22, 1980. The order, signed by Judge Hodnette, for the mental evaluation of defendant and his removal therefor to Searcy State Hospital was rendered on August 22, 1980. At that time, each of the last three cases was pending in the Mobile County District Court.

We find no fault with the action of the trial court, or with the action of any judge of the Circuit Court or of the District Court. That there was some confusion is apparent. However, it is clear that at the time defendant requested a continuance of the trial of the first three cases, he did not support, as he should have done, his claim that an order had been rendered removing defendant to Searcy State Hospital. It was not disclosed by the record in either of the first three cases. He thereafter elected not to raise the point again after he had obtained the approval of the court to have a consolidated hearing of all six cases, not to raise it again until his appeal to this Court had been perfected. The trial court was not in error in overruling defendant’s motion for a continuance of the first three cases or, as contended by appellant, “in failing to inquire further as to defendant’s competence to stand trial.” Defendant manifested an ardent desire to have a disposition of all six cases before the same judge as the judge to whom the first three cases were assigned, and when arrangements were made to do so he seemed appreciative and probably, we think, preferred to proceed with the hearing than to reopen the question as to a continuance.

We also are in disagreement with appellant’s only other contention, that the trial court was in error in sentencing defendant in Case No. CC-80-2319 pursuant to the Habitual Felony Offenders Act. In the sentencing hearing, it was clearly shown that defendant had been previously convicted of at least three felonies. Appellant argues that the Habitual Felony Offenders Act does not provide for any punishment in addition to that prescribed for the offense charged in CC-80-2319, possession of a pistol after a conviction of a crime of violence. Appellant states:

“Section 13A-11-72 of the Code of Alabama (1975) defines the offense of Possession of a Pistol after Conviction of a Crime of Violence. Section 13A-11-74 [sic] prescribes the punishment for that offense as imprisonment for not more than five years....
“Defendant contends this is an illegal sentence which the Code of Alabama does not authorize.- Alabama’s Habitual Offender Act, Section 13A-5-9 of the Code of Alabama (1975, 1980 Supp.), by its terms, authorizes enhanced punishment only for those felonies which are designated as Class A, B or C felonies. Neither Section 13A-11-72 nor Section 13A-11-74 [sic] designates this offense as being in one of those classes.”

Appellant evidently intended to refer to provisions of § 13A-11-84 instead of § 13A-11-74. Section 13A-11-84, not § 13A-11-74, prescribes punishment for a violation of § 13A-ll-72(a), which is charged in the indictment in CC 80-2319. The punishment there provided is “imprisonment for no more than five years.” Appellant shows study and ingenuity by his contention, but we think he is incorrect in his construction of the applicable statutory law on the subject. There is a flaw in the language thereof, in that there is no express classification of the crime of possession of a pistol after conviction of a crime of violence, but it is unquestionably a felony by reason of its punishability by imprisonment for more than one year. It is obvious that in the Criminal Code of 1975, effective January 1,1980, and the statutory law upon which it is based, there was an effort to classify expressly all non-capital felonies except murder into three classifications, A, B, and C. That there was a failure to do so as to the crime charged in CC-80-2319 does not deprive it of its status as a felony. All of the law on the subject is to be considered in pari materia. As so considered, the only reasonable construction is that the crime is a Class C felony, for the reason that the Habitual Felony Offenders Act purports to preempt the field of felonies generally, which the crime considered unquestionably is. Furthermore, the very language of § 13A-5-6(a)(3) prescribing the range of sentences for felonies provides, “For a Class C felony, not more than 10 years or less than 1 year and 1 day.” By good reasoning, we believe, it can be said that any felony punishable by imprisonment for “not more than 10 years or less than 1 year and 1 day” is a Class C felony, as to do so does nothing more than reverse the order of the obvious equation that a Class C felony is the equivalent of a felony that is punishable by a sentence to imprisonment for not more than 10 years or less than 1 year and 1 day. Such a conclusion follows, in our opinion, irrespective of § 13A-5-l(a) and § 13A-5-4, relied upon by appellant.

Section 13A-5-l(a) provides:

“Every person convicted of any offense defined in this article, or defined outside this title, shall be sentenced by the court in accordance with this article, unless otherwise specifically provided by law.”

Appellant says that he “contends, quite simply, that the punishment for the pistol offense is ‘otherwise specifically provided’ by Section 13A-11-74 [sic, which we believe is meant to refer to § 13A-ll-84(a) ].” Section 13A-ll-84(a) specifies the punishment provided for the particular crime irrespective of any previous felony convictions. It is inapplicable to any additional punishment provided by the Habitual Felony Offenders Act.

Section 13A-5-4(a) provides:
“. .. Any offense defined outside this title which is declared by law to be a felony without specification of its classification or punishment is punishable as a Class C felony.”

Appellant argues that said section specifies “punishment,” thus taking it outside the terms of 13A-5-4, and leaving it unclassified. Appellee would probably gain more than appellant by the quoted portion of § 13A-5-4(a) as the offense under consideration is not “defined outside this title” (Title 13A). However, by what we have already said we have determined that irrespective of § 13A-5-4(a), the crime charged in CC-80-2319 is the equivalent of a Class C felony. The trial court was not in error in treating it accordingly.

The judgment of the trial court in each of the cases under consideration, CC 80-947, CC 948, CC 949, CC-80-2317, CC-80-2318 and CC-80-2319, should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . See § 13A-5-4 Commentary.


author: BOOKOUT, Judge.

text:
    Celeste Ola CRAIG, alias v. STATE.
    1 Div. 273.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-415.

      Robert C. Wilson, of Grodsky & Wilson, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Theft of property in the second degree; sentence: thirteen months’ imprisonment.

This is a shoplifting case. Following substantially the language set out in Ala.Code § 13A-8-2(l) (Supp.1977) and Ala.Code § 13A-8-4(e) (Supp.1979), appellant was indicted and convicted of knowingly obtaining or exerting unauthorized control over a blouse and a pair of pants, the property of D. H. Holmes Company, Ltd., of the approximate aggregate value of $27.98, taken from or in the building where the property was stored or kept for sale, with the intent to deprive the owner of the same.

The crux of this appeal concerns the sufficiency of the State’s evidence. Two witnesses testified for the State: Gail C. Cummings and Ted Arnett. At the end of their testimony, appellant moved to exclude the State’s evidence based on its insufficiency. It is thus necessary to examine Ms. Cummings’s and Mr. Arnett’s testimony in detail in a light most favorable to the State.

Ms. Cummings testified that she was employed by D. H. Holmes Company, Ltd., as floor supervisor for security. Her duties included being “on the floor to detect shoplifters.” Ms. Cummings stated that she was working the junior department fitting room on June 21, 1980, the date of the alleged offense. One of her duties in this area was to inspect the dressing rooms, which were arranged in stalls, as customers “came in and out of the dressing rooms trying on clothes.”

Ms. Cummings first saw appellant and a companion, Carol James, around 12:30 p. m. in the junior department at Holmes. The appellant and Ms. James walked into the fitting room; appellant went into one stall and Ms. James went into another. Ms. Cummings saw appellant carry four articles of clothing into her stall, “two black items and two pink items.” Ms. James took one item into her stall. Appellant carried a D. H. Holmes shopping bag into her stall. Minutes earlier Ms. Cummings had checked the dressing rooms to “make sure” they were “clear of merchandise and hangers.” Ms. Cummings stated that when appellant and Ms. James “went in . .. you could tell they were trying things on... . I heard the rattle of paper and I saw a sales slip fall on the floor. At that time I started watching more closely.”

Appellant came out of her stall a few minutes later and joined Ms. James. Appellant was carrying the two black items, but Ms. Cummings did not see her carrying the pink items. Ms. Cummings testified that she “got up immediately and went down to the fitting room.” She saw no merchandise in either of the two stalls, but saw a pants hanger and a shirt hanger in the stall next to appellant’s that had not been there before. The ceiling to the dressing rooms was approximately twelve to fifteen feet high, but the tops of the stalls were low enough that “you could reach your hand over” from “one stall to the other."

Ms. Cummings walked back out into the junior department and saw appellant “standing over near the sales counter” with the black items of merchandise. The sales area was quite large. After making “eye contact” with appellant, appellant walked back into the dressing room, went into a stall and shut the door. Ms. Cummings paged Mr. Arnett, the store security manager, and followed appellant to her stall.

“I went to the door, and I said, ‘I’m Gail Cummings with D. H. Holmes security. Would you please come with me?’ And she said something to the effect: I haven’t left the store or — I haven’t left the store. I said, ‘It doesn’t matter. Would you please come with me?’ She shut the door, and I pushed it open, and I asked her to come with me. She shut the door again, and I pushed it open....
“.. . At one point she shut the door and leaned against it like this, and there was a chair — This is the door. They’re louvered. You can see in, but they can’t see out. There was a chair right here. The bag was sitting on the chair, and she was going into it. About that time, I said: Ted, I need some help, or she’s ditching it, I need some help.”

Mr. Arnett convinced appellant to come out of the stall. Ms. Cummings then went into the stall next to appellant's and picked up a pink blouse and pair of pants that were lying on the floor. Ms. Cummings recorded the price tags of the two items in her interview log. The blouse was valued at $12.99 and the pants at $14.99.

On cross-examination Ms. Cummings admitted that it might be visually impossible to see every item if a customer had ten or eleven garments draped over her arm at one time, but that she “definitely could have observed” four garments if a person was carrying those garments in her hand. Ms. Cummings noted that appellant was carrying the black items in her hand when she came out of the dressing room, but she “did not see the pink garments.” She said customers of Holmes were authorized to take clothes off the racks and carry them into the dressing rooms; customers also were not prohibited from taking merchandise out of the dressing rooms back into the shopping area, but the “concealing of garments would be unauthorized.”

Ms. Cummings stated that she could not see the pink garments when appellant first came out of the dressing room. “They weren’t in view anymore.” From the time Ms. Cummings left the dressing room area, following appellant into the large sales area, she did not know of anyone who could have gone into the dressing rooms. Ms. Cummings further stated that appellant did not leave the junior department in Holmes; appellant got to “the point of a cash register at one time,” but did not pass it.

Mr. Ted Arnett testified that when he got to the junior department fitting room area he observed Ms. Cummings “struggling with somebody on the other side of the door, and just as I was approaching Gail,” a pair of “hot pink” garments “came sailing through the air” from the stall appellant occupied into another stall.

On cross-examination Mr. Arnett reiterated that he saw the pink garments in the air from the time they left appellant’s stall “until they hit the floor on the other side of the stall.” Mr. Arnett stated that when he went into appellant’s stall and identified himself, appellant told him “I know my rights.” Mr. Arnett concluded that it was “completely okay with D. H. Holmes” for a customer to take garments “from the junior dress department into the junior dress dressing room” and take them back out or go back into the dressing room “as long as they’re in our visibility.”

Following this testimony the State rested its case. We find that the State’s evidence was sufficient to submit to the jury and likewise was sufficient to sustain the jury’s verdict.

Appellant’s defense was that the pink items were not hidden, rather appellant had the garments “draped over” her arm when she came out of the dressing room heading toward the cash register. It was appellant’s testimony that she at no time put any of the garments in her bag or attempted to conceal them in any way. Her purpose for going back to the dressing room was allegedly to “try on the dresses again” to see how they looked with a hat she had purchased earlier. This testimony, of course, presented a jury question. Jones v. State, 55 Ala.App. 274, 314 So.2d 876, cert. denied, 294 Ala. 761, 314 So.2d 879 (1975).

I

To show the sufficiency of the State’s evidence, it is helpful to set out those statutes which form the basis of appellant’s indictment. Ala.Code § 13A-8-4(e) (Supp.1979), which describes the particular type of second degree theft of property appellant committed, reads as follows:

“The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored, constitutes theft of property in the second degree.”

The type of theft of property described in this section includes, but is not limited to, shoplifting from a department store. Applying the language of § 13A-8-4(e) to the facts before us, it can be seen that the property in question exceeded $25 in value and was, in fact, taken by appellant in a building where the property was to be sold. Thus, the requirements under this section are met by the State’s evidence.

In addition to the requirements of § 13A-8-4(e), however, the conditions defining “theft of property” in Ala. Code § 13A-8-2(l) (Supp.1977) must also be met. Following the pertinent language in Section 13A-8-2(l) as that language was used in appellant’s indictment, we read:

“A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with the intent to deprive the owner of his property; ...”

Again, we find that appellant's actions, when viewed in a light most favorable to the State, constituted “theft of property” as defined in the above section. The evidence supports a finding that appellant knowingly obtained the pink items of clothing with the intent to deprive the D. H. Holmes Company of them. Appellant’s actions and responses, from the time Ms. Cummings made eye contact with her until she was arrested in the dressing room, evidence a strong consciousness of guilt.

A key word in § 13A-8-2(l) is “obtains” which is a substitute word for the phrase “taking and carrying away” as that phrase is used in the definition of larceny under Ala.Code § 13-3-50 (1975). See Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968). Thus, the word “obtains” signifies asportation. And under prior cases, such as Jones, supra, and Martin v. State, 371 So.2d 460 (Ala.Cr.App.1979), it is clear that if a shopper moves merchandise from one place to another within a store with the intention to steal it, there has been asportation and the shopper may be found guilty of larceny. Now, of course, the offense of larceny is covered under theft of property for offenses occurring on or after January 1, 1980. Therefore, when appellant “obtained” the pink garments, it was unnecessary for her to leave the store or even go past the check-out counter (Martin, supra) to be guilty of theft of property. Whether or not she intended to deprive Holmes of the items by concealing them was a question for the jury, which they resolved.

II

Appellant next contends that § 13A-8-4(e) violates the equal protection guarantees of federal and state law because it is discriminating in light of §§ 13A-8-4(a) and 13A-8-5(a). Sections 13A-8-4(a) and 13A-8-4(e) are both classified as Class C felonies while § 13A-8-5(a) is classified as a Class A misdemeanor. Appellant argues that it is a denial of equal protection to punish a thief who commits theft of property valued over $25 as a felon under one set of circumstances (§ 13A-8-4(e)) while requiring the property to be valued over $100 under another set of circumstances (§ 13A-8 — 4(a)) in order to punish the thief as a felon. We disagree.

Sections 13A-8-4(e) and 13A-8-4(a) proscribe different conduct. Section 13A-8-4(e), as used in this case, proscribes that conduct which is commonly known as shoplifting. It requires no recitation of authority for this court to recognize the seriousness of this widespread and costly problem. The legislature by enacting § 13A-8^4(e) obviously intended to provide stiff penalties for those persons caught engaging in that conduct in our state.

On the other hand, § 13A-8-4(a) proscribes that conduct which includes, but is not necessarily limited to, theft of property from a person’s home or office. Should it seem illogical that the legislature would allow a thief to steal more from one’s home or office than from a department store before classifying him as a felon, it must be remembered that even greater penalties are provided for the thief who commits theft of property “of any value from the person of another” and for the burglar who commits burglary in the first or second degrees. See Ala. Code §§ 13A-8-3, 13A-7-5 and 13A-7-6 (Supp.1979).

. The State certainly has a legitimate interest in punishing those individuals who engage in the conduct proscribed by § 13A-8-4(e). In applying the “rational basis test” as set out in Gideon v. Alabama State Ethics Commission, 379 So.2d 570 (Ala.1980), we find that the classification described in § 13A-8-4(e) furthers a proper governmental purpose and is rationally related to the purpose for which it was created.

The presumption exists that statutes are constitutional. This court will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Alabama Dairy Commission v. Food Giant, Inc., 357 So.2d 139 (Ala.1978). The party challenging the constitutionality of a statute has the burden of establishing its invalidity. Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974).

“The essence of the theory of equal protection of the laws is that all similarly situated be treated alike.” City of Birmingham v. Stacy Williams Co., Inc., 356 So.2d 608, 611 (Ala.1978); State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981). Equal protection of the laws does not compel uniformity in the face of difference. Hadnott v. City of Prattville, 309 F.Supp. 967 (N.D. Ala.1970). The equal protection clause does not mean that a state may not draw lines that treat one class of individuals differently from others. The test is whether the difference in treatment is an invidious discrimination. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351 (1973).

Ill

Appellant excepted at the- conclusion of the oral charge to the trial court’s failure to include the word “knowingly” in its definition of second degree theft of property. The record reveals clearly that the trial court corrected the charge as requested. Appellant made no further objection or exception. Thus, there is nothing for this court to review on this issue.

We have further reviewed appellant’s requested charges which were refused by the trial court and find that they were either ungrammatical, abstract or incorrect statements of the law. Harris v. State, 358 So.2d 482 (Ala.Cr.App.), cert. denied, 358 So.2d 487 (Ala.1978); Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).

AFFIRMED.

All the Judges concur.

      . See the commentary to §§ 13A-8-2 through 13A-8-5.


text:
    Alphonse Donald TIMMONS v. STATE.
    1 Div. 279.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied, March 19, 1982 Alabama Supreme Court 81-409.

      John Bertolotti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction of robbery in the first degree and sentence to imprisonment for twenty-five years.

There is no contention that the evidence is not sufficient to sustain the verdict of the jury upon which the judgment of conviction was based, and we are of the opinion that there would be no merit to such a contention. Appellant submits two issues only, and we limit our discussion of the evidence to that part of it that has some bearing upon the issues presented.

The undisputed evidence shows that the alleged victim, a female, was shot at twice by a man with a pistol in his hand while he was standing by the side of her automobile demanding that she give him her purse and her money. The first shot hit her in the jaw, which required her immediate hospitalization. The second shot missed her. She was promptly taken to the hospital, and the robber even more promptly left the scene. At the hospital the same day she was injured, she described the robber to law enforcement personnel. During the first few days of her hospitalization, one of the officers brought her some pictures for her to view in order to determine whether there was in the collection of pictures a photograph of the robber. Her reply was in the negative until the fourth set of pictures was presented to her, in which she identified a photograph of the defendant as the man who had attempted to take her purse and money and who had shot at her twice. On the trial she positively identified the defendant as that person.

Another female was in the parking lot at the time of the commission of the crime, who confirmed the testimony of the victim as to what occurred, but she could not identify the defendant as the' robber.

The principal issue raised by appellant pertains to the following part of the transcript that occurred during the direct examination of Sergeant S. B. Waltman, a witness for the State, soon after he had testified as to his exhibition to the victim of the robbery of the four sets of pictures mentioned above:

“Q. You showed her this one without the cap?
“A. Yes.
“Q. With five other — four other people? “A. Yes.
“Q. Did you do anything more in the course of your investigation after you showed her all these pictures?
“A. I talked to Timmons and advised him of his rights and he refused to make any statement at all to me until he conferred with an attorney.
“MR. BERTOLOTTI: Now, Judge, I’m going to object.
“THE COURT: Overruled.
“MR. BERTOLOTTI: Under Doyle v. Ohio I think that that’s—
“THE COURT: Overruled.
“MR. BERTOLOTTI: Judge, I would like my objection for the record. I think that—
“THE COURT: It’s in the record.
“MR. BERTOLOTTI: All right, sir.
“Q. Did you do anything further in the extent of your investigation in this case?
“A. No.”

Appellant strongly relies upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), in support of his contention that reversible error was committed in permitting the State to show by the witness that defendant had refused to make a statement until he had conferred with an attorney, contending that prosecution may not use a defendant’s post-Miranda silence as evidence of his guilt. Appellee counters by saying in effect that Doyle v. Ohio involved a situation in which the prosecution was attempting to impeach the defendant as to his testimony of an exculpatory nature. However, irrespective of the particular contention of appellee, it has been definitely decided in Alabama and elsewhere that the prosecution may not use the defendant’s silence as evidence of his guilt, whether in doing so it is in impeachment of him as a witness or not. Houston v. State, Ala.Cr.App., 354 So.2d 825 (1977), cert. denied, 354 So.2d 829; Ex parte Harris, Ala., 387 So.2d 868 (1980), rev’g Harris v. State, Ala.Cr.App., 387 So.2d 865 (1979). It suffices, we think, to quote clear and pertinent language from those two cases, which requires a reversal of the instant case.

In Houston v. State, per Judge Bowen, at 354 So.2d 827-828, it is stated:

“The principle forbidding the prosecution to use evidence of defendant’s post-arrest, post-Miranda warning silence for substantive purposes or as evidence of defendant’s guilt is soundly established and based on fundamental principles of our jurisprudence. In Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966) the Supreme Court of the United States announced in dictum that
“ ‘it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.’
“Though this issue has never been before the Supreme Court, lower federal courts have uniformly held that a defendant’s silence during police custody and interrogation cannot be admitted on the question of guilt. F. O’Keefe, ‘Impeachment by Silence,’ 25 Cleveland State Law Review, 261, 271, n. 65. See also Wigmore, Evidence § 821, n. 3 (J. Chadbourn rev. ed. 1970) for a listing of recent state cases which have considered the effect of Miranda on tacit admissions (silence) by the accused. On this issue it has been asserted that the court’s pronouncement in the Miranda dictum ‘leaves little doubt that silence or a claim of the privilege made in response to a police accusation during custodial interrogation is inadmissible.’ C. McCormick, Law of Evidence, § 161 (2 ed. 1972) Booton v. Hanauer, 541 F.2d 296, 298 (4th Cir. 1976). Generally see West Digest, both federal and state, under Criminal Law, Key No. 407(1).
“It is the opinion of this court that Doyle, supra, and the considerable body of case law both prior to and in the wake of Miranda give the force and effect of law to the Miranda dictum. Thus we hold that the use of the post-arrest, post-Miranda warning silence of the accused as evidence of his guilt is a violation of the Due Process Clauses of both the Fourteenth Amendment to the Constitution of the United States and Section Six of the Alabama Constitution of 1901.... ”

In Ex parte Harris, supra, it was held that the trial court committed reversible error in permitting the prosecution to prove, over the objection of defendant, that defendant had remained silent in the presence of another person while such other person made an incriminatory statement relative to defendant. In so deciding, the Supreme Court of Alabama, through Justice Almon, relied upon Doyle v. Ohio, supra, and Miranda v. Arizona, supra, and summarized its conclusion on the point as follows:

“The crux of our holding is simply that it is fundamentally unfair and in violation of due process of law to inform a person under arrest that he has a right to remain silent and then permit an inference of guilt from that silence.” 387 So.2d at 871.

Appellee counts heavily on the fact that the testimony of the witness as to the silence of defendant upon his having been given the Miranda warning was not elicited by counsel for the State. It is commendable that the record does not show any effort on the part of counsel for the State to make capital of the unfortunate statement by the witness. Nevertheless, this did not relieve the evidence of its highly prejudicial nature. It tended to hurt the defendant just as much as if it had been intentionally brought into the case by counsel for the prosecution. It was not so prejudicial as to have been eradicable. It could have been cured by prompt corrective action by the trial court. Houston v. State, supra. But the poison was neither removed nor ameliorated.

During the closing argument of counsel for the State, he said:

“Barbara Jackson [the eyewitness to the robbery, who could not identify defendant as the robber] said he was around— he was tall — not tall, excuse me. He was not tall. What is tall to you? Over six feet. He was somewhere around six feet, maybe a little bit more.”

The testimony of the witness on the subject was as follows:

“Q. How tall — did you give the police a general description of what you saw?
“A. Yes, I gave a description of the man.
“Q. What did you tell them?
“A. I told them that he was a thin— rather thin person, a black male, and he wasn’t a tall man, maybe a little taller than you. About your height or a little taller, I guess. But he was thin. He was not very tall and wasn’t a very heavy person.
“Q. How tall are you?
“A. I’m five-two.
“Q. What do you consider a not very tall person?
“A. Oh, I guess somebody that’s not quite six feet or maybe a little less than six.
“Q. And you told the police that?
“A. Yés, he was not six feet or over. I don’t think he was. He didn’t appear to be.
“MR. DEAN: Thank you.”

On close analysis, it appears that State’s counsel was somewhat, but slightly only, mistaken as to what the witness had said as to the height of the robber. It seems that her testimony was that the robber “was not six feet or over,” but that State’s counsel recounted her testimony as having been “he was somewhere around six feet, maybe a little bit more.” When counsel for the State made the argument as to what the witness had said as to the height of the robber, the following occurred:

“MR. BERTOLOTTI: I object. He’s mis-tating the evidence there, Judge.
“MR. DEAN: The jury will remember what she said.
“THE COURT: I’ll talk to them when he gets through.
“MR. BERTOLOTTI: All right, Judge.”

During further closing argument of State’s counsel, the following occurred:

“MR. DEAN: Put all the statements together when he asked Sgt. Waltman and then he comes to you and wants to nitpick and just take one out and say this is the one that’s going to make the whole case because everybody said five six and that’s not what the Sergeant told you, that’s not what he said — Three witnesses that he interviewed. He said they all basically said the same thing and we didn’t show all the witnesses in here today.
“MR. BERTOLOTTI: Now, Judge, I’ve got to object again. He is — you know, he is misstating the evidence pretty severely.
“THE COURT: I hate to admit it, I wasn’t even listening to it. Just tell them what the evidence is and let’s go.
“MR. DEAN: I am, Judge.
“THE COURT: All right, let’s go.”

The transcript does not purport to show any of the argument of defendant’s counsel or all of the argument of State’s counsel, nor does the transcript show any further reference by the court or by counsel to either of the items in the argument of counsel for the State to which an objection was made by counsel for the defendant. Although there was some inaccuracy as indicated in the argument of counsel for the State as to what one of the eyewitnesses had testified and as to what Sergeant Walt-man had testified, we are not persuaded that error to the prejudice of the defendant resulted from the failure of the trial court to sustain the defendant’s objection to the argument or exclude it from the consideration of the jury.

In reaching this conclusion we are influenced to some extent by ambiguity in the testimony of the witnesses on the points under consideration, ambiguity in the argument of counsel for the State as to such testimony and by the failure of all concerned, the trial judge, counsel for the State and counsel for the defendant to have the matter clarified by references to the court reporter’s notes and thus informing the jury accurately as to the exact testimony of the witnesses. We are persuaded that counsel for the State was not intentionally attempting to mislead the jury and that probably it was not misled, that the jury recalled with accuracy what the witnesses had said. It was a short trial, the entire evidence constituting less than sixty transcript pages.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded.

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.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents without opinion.