text:
    Thomas L. DAVIS v. STATE.
    8 Div. 294.
    Alabama Court of Criminal Appeals.
    Oct. 28, 1980.
   PER CURIAM.

REVERSED AND REMANDED on authority of the Supreme Court of Alabama, 389 So.2d 952 (1980). No opinion.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge. BOWEN, Judge.

license: Public Domain

text:
    Larry D. WHITE v. STATE.
    8 Div. 298.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    On Return to Remand Oct. 28, 1980.
    No briefs filed for appellant or appellee.
   BOWEN, Judge.

This is an appeal from a revocation of probation. On May 9, 1975, the defendant was arraigned as a youthful offender and placed on probation for a period of three years. This probation was revoked on September 21, 1979, apparently for the defendant’s failure to report.

Before probation may be revoked, the probationer must be afforded the minimum standards of due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Our Supreme Court set out its interpretation of the Morrissey and Gagnon guidelines in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). Jenkins v. State, 368 So.2d 329 (Ala.Cr.App.1979).

The record before this Court does not show that each and every guideline has been complied with. From this record we cannot tell with any degree of certainty whether the trial court failed to follow the mandate of Armstrong or whether the record simply fails to show that the mandate was followed. For this reason we remand this cause to the Circuit Court of Madison County with directions that a hearing be held to determine whether or not the defendant was afforded minimum due process as defined in Armstrong. The trial judge is directed to make a written determination of whether and how each factor of Armstrong has been satisfied. If the trial judge determines that the requirements of Armstrong have not been met, the defendant must be given a new probation revocation hearing. Austin v. State, 375 So.2d 1295 (Ala.Cr.App. 1979).

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

After considering the order of the Circuit Court submitted on return to remand, it is apparent that the defendant was given a new probation revocation hearing. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Billy BATTLES v. STATE.
    7 Div. 733.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Aug. 19, 1980.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

This was an appeal from a judgment denying appellant’s discharge in a habeas corpus proceeding after a hearing on extradition papers from the State of Florida.

The State of Florida, through its Governor, has sent a requisition warrant, accompanied by an information from the State’s attorney for the Fourteenth Judicial Circuit of Florida, which information is in two counts. The first count charged Billy Battles with obtaining a vehicle with intent to defraud, and the second charged Billy Battles with passing a worthless check. Both of these counts arise according to the information from the same transaction in which Billy Battles obtained a 1974 Ford, Serial Number 4N54H118242, from a dealer in Florida by the name of Larry L. Stimmett. The information asserts that the check given Stimmett was on a closed bank account.

The second count of the information asserts that Billy Battles did, on July 1, 1979, in Bay County, Florida, issue a check for $1300.00 to Larry L. Stimmett, drawn on the Sand Mountain Bank of Boaz, Alabama, which check is dated July 29, 1979, knowing at the time of making, or uttering, or issuing such check that there were not sufficient funds on deposit or credit with the said bank to cover the check in question.

The trial court, pursuant to a petition for writ of habeas corpus filed by the appellant’s attorney, conducted a hearing on the validity of the extradition papers, and all of the papers from the State of Florida were placed in evidence before the Circuit Judge. The appellant testified himself and stated that he advised Mr. Stimmett that there were not sufficient funds on deposit when he discussed the purchase of the car in Bay County, Florida, on July 1, 1979, but indicated that the transaction occurred on a Sunday, and that he wanted to drive the vehicle back to Gadsden, Alabama, and would place the funds on deposit to cover the check. He said he so advised Stimmett at the time. The appellant contended that Stimmett allowed him to drive the 1974 Ford back to Gadsden with this understanding, and that he subsequently developed car trouble in driving back and contacted Mr. Stimmett in Florida and so advised him.

The appellant also admitted on cross-examination that he later sold the automobile to one Charlie New.

In resisting the extradition to Florida, the appellant, through his counsel, calls the attention of this Court to the provisions of § 15-9-31 and § 15-9-33, Code of Alabama 1975, which are as follows:

“§ 15-9-31. Form of Demand.
“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing and accompanied by a copy of an indictment found, or by an information supported by affidavit, in the state having jurisdiction of the crime or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.”
“§ 15-9-38. What supporting documents to show.
“A warrant of extradition must not be issued unless the documents presented by the executive authority making the demand show that the accused was present in the demanding state at the time of the commission of the alleged crime and that he thereafter fled from that state and is now in this state, and that he is lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole.”

Specifically, counsel for the appellant calls our attention to the fact that there is no affidavit attached to the information which is contained in the extradition papers; and, secondly, that the affidavit, which is made by an investigator of the office of the state’s attorney in Bay County, Florida, is dated eleven days after the information, and is attached to the “application for requisition,” which is dated August 30, 1979, some ten days after the information contained in the extradition papers. Appellant’s counsel also calls our attention to the fact that the investigator who signed the affidavit has “no personal knowledge of the facts alleged,” nor does the affidavit disclose the source of the information or the reliability of the source.

Finally, counsel asserts that such affidavit is a conclusionary affidavit and that, in order for an information to be valid, such should be accompanied by a sworn affidavit by the party having personal knowledge of the facts asserted.

I

Where, as here, the allied papers accompanying the requisition warrant from the Governor of a foreign state are placed in evidence at the habeas corpus hearing, then there is a duty on the part of the trial court and -the appellate court on subsequent review to look to their legal sufficiency to justify the issuance of the rendition warrant. Aldio v. State, 44 Ala.App. 303, 208 So.2d 212 (1967); Martin v. State, 50 Ala.App. 1, 276 So.2d 149 (1973); Watson v. State, 30 Ala.App. 184, 2 So.2d 470 (1941); and Meadows v. State, 38 Ala.App. 319, 82 So.2d 811 (1955).

Section 15-9-31, Code of Alabama 1975, clearly requires that there shall be attached to the requisition warrant from the Governor of the foreign state a certified copy of any indictment found or by information supported by affidavit in the state having jurisdiction of the crime or by copy of an affidavit made before a magistrate there, together with a copy of any warrant issued thereon.

The two-count information by the state’s attorney of the Fourteenth Judicial Circuit of Florida is dated and certified by the clerk of the Bay County, Florida, Court, under date of August 20, 1979. There is no affidavit or warrant attached to this information.

There is an “application for requisition” directed to the Governor of Florida by the state’s attorney of Bay County, dated, sworn to, and certified to under date of August 30, 1979, seeking the extradition of Billy Battles and asserting that there is an information which was attached, but the record does not show that there was an affidavit attached to the information. Rather, the affidavit in tKie instant cause is dated, sworn to, and certified to by the clerk of the Circuit Court of Bay County, Florida, all under date of August 31, 1979, and reads as follows (R. 48):

“IN THE COUNTY COURT IN AND FOR BAY COUNTY, FLORIDA
“STATE OF FLORIDA APPLICATION OF vs PROBABLE CAUSE BILLY BATTLES ,
“STATE OF FLORIDA COUNTY OF BAY
“Personally appeared before me, one of the Judges of the above-styled Court and a magistrate under the law of the State of Florida, Jimmy Cauley, Investigator with the Office of State Attorney, Fourteenth Judicial Circuit, Panama City, Bay County, Florida, here being first duly sworn, deposes and says under oath: “That I, Jimmy Cauley, am over the age of 18 years, a resident of the State of Florida, emancipated and competent to duly take an oath.
“That in my capacity as an investigator with the Office of the State Attorney, Fourteenth Judicial Circuit, I had the opportunity to investigate the criminal offense for which the aforesaid, Billy Battles, is charged and during the course of my investigation, I obtained the following facts:
“As to Count I: Billy Battles, on or about the 1st day of July, 1979, in County and State aforesaid, did unlawfully obtain custody of a motor vehicle by trick, deceit, fraudulent or willful false representation, with the intent to defraud the owner or any person lawfully possessing the motor vehicle, to-wit: the defendant obtained custody of a 1974 Ford, serial number 4N54H118242, from the owner thereof, Larry L. Stimmett, by fraudulently purchasing vehicle with a personal check on a closed bank account.
“As to Count II: Billy Battles, on or about the 1st day of July, 1979, in County and State aforesaid, did unlawfully draw, make, utter, issue or deliver to another person a certain check or written order or draft on a bank or depository for the payment of money or its equivalent, the said defendant well knowing at the time of drawing, making, uttering, issuing or delivering of such check or written order, or draft, that the maker or drawer thereof did not have sufficient funds on deposit in or credit with the said bank or depository with which to pay the same on presentation, contrary to Florida Statutes, Section 832.05, said check or written order being in the following words and figures: “Pay to the Order of Larry L. Stimmett, in the amount of $1300.00, Thirteen hundred and 00/100, drawn bn the Sand Mountain Bank, Boaz, Alabama, dated July 29, 1979, and signed Billy Battles,” and did receive something of value in exchange therefor.
“Affiant makes this affidavit in support and in aid of the extradition of the said defendant, Billy Battles.
S/ Jimmy Caulev
Jimmy Cauley
“Sworn and subscribed before me this 31st day of August, 1979.
“S/ Don T. Sirmons
County Judge in and for
Bay County, Florida.

This Court is of the opinion that this affidavit is not sufficient in law to support the information which is dated some eleven days earlier and is not attached to such information, but, rather, is attached to an “application for requisition,” dated August 30, 1979, and directed to the Governor of Florida.

Moreover, the affidavit in question is made by the investigator for the State’s attorney’s office, and there is no showing of any personal knowledge on his part of the source, or reliability of the facts asserted in the affidavit. Nowhere in the record is there an affidavit of one Larry L. Stimmett to whom it is alleged the appellant gave a worthless check.

In this state of the record, we cannot in good conscience conclude that the State of Florida had satisfied the requirements of our statute. See Raburn v. State, Ala.Cr. App., 366 So.2d 698, affirmed, Ala., 366 So.2d 708 (1978).

The facts presented by this record under review, having failed to show that the appellant is prima facie under a legal restraint, require therefore that a reversal of this cause must be ordered.

REVERSED AND REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex Parte State of Alabama ex rel. Attorney General. (Re: Billy BATTLES v. STATE of Alabama).
    79-902.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   EMBRY, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and FAULKNER, JONES and ADAMS, JJ., concur.


author: DeCARLO, Judge. BOWEN, Judge,

text:
    Robert Lee WATSON, Jr. v. STATE.
    6 Div. 947.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      Charles W. Allen, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

The appellant was indicted by the grand jury of Jefferson County in May, 1978, and charged with robbery. Following a jury trial, he was found guilty of robbery on November 2,1978, and was sentenced to ten years imprisonment in the penitentiary.

I

The first issue on this appeal is whether the appellant was denied a speedy trial for this offense in violation of his rights under Art. I, § 6, of the Alabama Constitution and the Sixth Amendment to the United States Constitution. A chronology of events necessary in understanding the question presented is as follows:

March-24, 1975: George Elston Blair was robbed by the appellant in Birmingham, Alabama.

April, 1975: Appellant was arrested and charged in Eustis, Lake County, Florida on an unrelated matter. He was incarcerated then ’ released on bond. He remained at Eustis, Florida through the first part of 1977.

May, 1975: A complaint charging the appellant with robbery was sworn out by George Blair. A warrant of arrest, which stated,

“Defendant lives at large-2517 4th Ave. So., Birmingham, and 1420 McDonald Avenue, Eustis, Florida,” was issued.

March, 1977: Appellant was arrested on a federal check charge.

April 13, 1977: The district attorney in Birmingham, Alabama, sent to the sheriff of Manatee County, Florida, in Bradenton, Florida, a letter stating that the district attorney understood that the appellant was in the custody of the sheriff. A warrant charging the appellant with robbery was enclosed with the letter. The district attorney stated in the letter that the warrant was to be placed as a detainer, and that he intended to begin extradition proceedings. No answer to the letter was ever received by the district attorney.

April, 1977-June, 1977: Appellant was brought from Manatee County, Florida to the Jefferson County, Alabama, jail in Birmingham where he was incarcerated on a federal charge. He pleaded guilty and was sentenced to two years.

June, 1977-October, 1977: Appellant was transferred from Birmingham to Atlanta. He was then sent back to Eustis, Florida, and was sentenced in Brandenton, Florida to two years. Next, appellant was sent to Jacksonville, Florida, where he was sentenced to two years.

October, 1977: Appellant was sent to federal prison in Texarkana, Texas, where he learned of the robbery charge.

November, 1977: Notice that a detainer in favor of the Birmingham district attorney had been lodged against the appellant was sent from the federal prison in Texar-kana to the Birmingham district attorney.

November 16, 1977: Birmingham district attorney received the notice regarding the detainer.

February 28, 1978: Letter to the Birmingham district attorney from the appellant in which he inquires about the detainer lodged against him.

March 2, 1978: A motion to dismiss by the appellant alleges the denial of his right to a speedy trial.

March 9, 1978: Birmingham district attorney received appellant’s letter dated February 28, 1978, and appellant’s motion to dismiss dated March 2, 1978.

March 10, 1978: Appellant filed a motion to dismiss for lack of a speedy trial.

March 13, 1978 : Indictment charging appellant with robbery.

May 8, 1978: Writ of arrest issued against the appellant at the federal prison in Texarkana.

June 6, 1978: Letter from the Birmingham district attorney to the appellant stating that the district attorney is in the process of arranging with the State of Alabama to return the appellant to Alabama for a speedy trial.

July 3, 1978: Offer from the Bureau of Prisons to give temporary custody of the appellant to the Birmingham district attorney.

July 5, 1978: Motion to dismiss by the appellant for lack of speedy trial.

July 6, 1978: Birmingham district attorney received a letter dated June 29, 1978, from the federal prison in Texarkana stating that the appellant is incarcerated in that prison. According to the letter, the district attorney, on June 28, 1978, formally requested to take custody of the appellant under the interstate agreement on detain-ers. The prison authorities requested that the district attorney inform them of the date he will take custody of the appellant.

July 10, 1978: Appellant’s motion to dismiss dated July 5,1978, was received by the district attorney.

September 15, 1978: Indictment charging robbery was served on the appellant, and he was arraigned.

October 31, 1978: A motion to dismiss for lack of a speedy trial was filed by the appellant in open court and was denied. Appellant was then tried by a jury.

At the hearing, conducted prior to the trial, on the appellant’s motion to dismiss, the appellant testified that, from April, 1975 until 1977, he had resided at the same address in Eustis, Florida. According to the appellant, he was employed by Wilson Gaines Produce Company during that period and drove a truck from Eustis, Lake County, Florida, to Bradenton, Manatee County, Florida.

The appellant, who alleged that he was not in Alabama on the date of the robbery, stated that he was unable to obtain witnesses to corroborate his story because one potential witness was deceased and the others could not remember after a time lapse of over three years. No other witnesses testified for the appellant, and the State did not call any witnesses.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the United States Supreme Court ruled that, in order to determine whether an appellant’s right to a speedy trial has been violated, courts should apply a “balancing test.” In that balancing test the conduct of the prosecution and the conduct of the accused are weighed. Four factors to be assessed when deciding whether the appellant has been deprived of his right are length of delay, the reason for the delay, the accused’s assertion of his right, and prejudice to the accused.

In Barker v. Wingo, supra, the court stated:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless . . . the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case.”

The protection of the speedy trial clause of the Sixth Amendment is triggered “when a criminal prosecution has begun and extends only to those persons who have been ‘accused’ in the course of that prosecution.” United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.

Counsel for the appellant urges in his brief that, in the present ease, the prosecution against appellant commenced on May 12, 1975, when a complaint was sworn out against him and a warrant of arrest was issued. We do not agree. In United States v. Marion, supra, we find the following:

“[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.
“Invocation of the speedy trial provision thus need not await indictment, information or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest.” [Emphasis added]

In light of this authority, we find that, in the present case, the appellant was designated an “accused” when a detainer was lodged against him in favor of the Jefferson County District Attorney on November 11, 1977. See Prince v. State, Ala.Cr.App., 354 So.2d 1186. On this date, appellant’s right to a speedy trial attached. The district attorney did request, on April 13, 1977, that a detainer be lodged against the appellant, however, there is no evidence to show that this request was received. Thus, the length of delay, approximately eleven and one half months, was from November 11, 1977, to October 31, 1978, the date of appellant’s trial. In our judgment, this delay was not “presumptively prejudicial” under the circumstance of this case; therefore, inquiry into the other factors that go into the balance is not necessary. See Barker v. Wingo, supra.

We hold that the appellant’s constitutional right to a speedy trial was not violated; consequently, the trial judge was correct in overruling the appellant’s motion to dismiss.

II

Appellant’s second and third contentions are that the trial judge committed a gross abuse of discretion by failing to grant appellant’s motions for a continuance. In the first motion, the appellant asserted that he should be granted a continuance because he had not had an adequate time to prepare for the trial and because he had not been able to locate all the necessary corroborating witnesses, nor to procure necessary supportive documents. In the second motion, made orally at the bench, the appellant requested a one day continuance so that a potential witness in charge of certain work records could attend the trial.

The record shows that, on September 15, 1978, the appellant was arraigned and was appointed an attorney; consequently, the appellant had six weeks to prepare for his trial. The transcript reveals that, according to the appellant, his wife was the bookkeeper for his former employer, and, if given the opportunity, she could produce the work records necessary at trial to show that appellant was in Florida at the time of the robbery. The trial court did allow the appellant to telephone his alleged former employer, Mr. Williams. According to the judge, Mr. Williams informed the court that he had no work records at all and that he did remember the appellant occasionally working for the company, but the employer could not remember “when, how or anything about it.” Given the length of time between arraignment and trial, the court found it “incomprehensible” that the information given by Williams could not have been discovered.

The rule is well settled that the granting or denial of a motion for continuance lies within the sound discretion of the trial court and will not be overturned absent a clear showing of abuse of that discretion. Williamson v. State, Ala.Cr.App., 370 So.2d 1054, affirmed, 370 So.2d 1066; Rogers v. State, Ala.Cr.App., 365 So.2d 322; Duncan v. State, Ala.Cr.App., 355 So.2d 745.

In the present case, the appellant had adequate time to prepare his defense. The transcript revealed that testimony by appellant’s former employer would not have helped the defense, and any work records appellant sought from his former employer' were nonexistent. In our judgment, no abuse of discretion by the trial judge was shown, therefore, the court did not err by failing to grant the continuance.

III.

The appellant asserts that the State failed to prove a prima facie case of robbery because the State failed to prove an essential element of robbery, the placing of the victim in fear.

In Alabama, the offense of robbery is comprised of the following essential elements: (1) felonious intent, (2) putting in fear or force, as means of effectuating the intent, (3) and, by that means the taking and carrying away of the property of another from his person or in his presence. Henderson v. State, 172 Ala. 415, 55 So. 816; Hill v. State, 145 Ala. 58, 40 So. 654; Morris v. State, 97 Ala. 82, 12 So. 276.

The victim, in the present case, testified that, a pistol was drawn on him by the appellant, who yelled, “This is a stickup.” The victim’s wallet was taken from him, then he was forced to lie on the floor. While the appellant and another robber took money from the cash register, they discussed whether the victim should be killed. According to the victim, he relinquished his wallet because the appellant, who had a gun in his hand, demanded the billfold.

In Pollard v. State, Ala.Cr.App., 358 So.2d 778, this court stated:

“Robbery requires force on the part of the defendant or conduct, by word or action, that places the victim in fear of injury, but the extent of the fear is sufficient if it causes the victim to part with his property unwillingly.”

Under the evidence in the present case, we find that the jury could reasonably have concluded that the words and actions of the appellant caused the victim to part unwillingly with his property because of fear of injury to his person by the appellant. We hold that the essential element, which the appellant asserts was missing, was in fact proved by the State, consequently, the trial judge was correct in overruling the appellant’s motion to dismiss for failure to prove a prima facie case.

IV

The final issue raised by appellant is whether the trial court erred in overruling his motion for new trial. In the motion, the appellant argues that he should be granted a new trial because certain potential defense witnesses could not be reached prior to trial, and their testimony would probably change the result if a new trial were granted. This same issue of absent witnesses was raised at the time of trial by appellant’s motions for a continuance.

The decision to grant or refuse a motion for a new trial rests largely in the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. McBryar v. State, Ala.Cr.App., 368 So.2d 568; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169. Based on the reasons enumerated in Part II, we hold that no abuse of discretion by the trial court was shown, and that the trial judge did not err in overruling the motion for new trial.

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

AFFIRMED.

HARRIS, P. J., and TYSON, J., concur.

BOWEN, J., dissents.

BOOKOUT, J., joins in dissent.

BOWEN, Judge,

dissenting.

I respectfully dissent from the conclusion that the defendant was not denied a speedy trial as reached in the majority opinion. Under the standards of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the defendant was denied a speedy trial.

The protection afforded a defendant is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. United States v. Mari on, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The United States Supreme Court in Marion made it clear that it is either a formal indictment or information or else the actual restraints imposed by arrest that engage the particular protections of the speedy trial provision of the Sixth Amendment; thus, the reach of the amendment is excluded from the period pri- or to arrest. Marion, 404 U.S. at 321, 92 S.Ct. at 463. Yet, in Marion, the prosecution was begun by indictment-“the first official act designating appellees as accused individuals.” Marion, 404 U.S. at 324, 92 S.Ct. at 465. Marion also clearly stands for the proposition that, in computing time for purposes of alleged speedy trial violations, the time begins to run only after a defendant is charged in the case of a suspect who is not arrested.

In this case the first official act designating the defendant as an “accused” was the issuing of the warrant of arrest. Alabama Code 1975, Section 15-3-7, provides: “A prosecution may be commenced within the meaning of this chapter by finding an indictment, the issuing of a warrant or by binding over the defendant.”

A related situation was addressed in State v. Horton, 373 So.2d 1093, 1095 (Ala.Civ.App.), affirmed, 373 So.2d 1096 (Ala. 1979).

“As a general rule, an unreasonable delay in making an arrest after the issuance of a warrant will require dismissal of the charges against the defendant where the defendant has been prejudiced. 6A C.J.S. Arrest § 51 (1975); Crawford v. State, Ala.Cr.App., 342 So.2d 450 (1977); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). While the length of time between issuance of the warrant and its execution is relevant to establish an unreasonable delay, the charges against the defendant will be dismissed only when the defendant can show (1) that his ability to conduct his defense was prejudiced; (2) that he himself was not responsible for the delay; and (3) that the State ought reasonably [to] have avoided the delay. Sellers, supra.

The undisputed evidence reveals that at the time the warrant was issued, in May of 1975, the prosecuting authorities knew that the defendant was either in Birmingham, Alabama, or Eustis, Florida. The uncontra-dicted evidence presented by the defendant shows that he was living at an address in Florida known by the District Attorney at this time. Despite this fact, the District Attorney took no action to secure the defendant’s presence in Alabama until April of 1977 when he attempted to place a de-tainer against the defendant who was in the custody of the Manatee County Sheriff’s Office in Florida. At that time the District Attorney stated that he intended to begin extradition proceedings. However, after receiving no reply to his request for a detainer, the District Attorney did not pursue the matter further. Apparently, the District Attorney did not even realize that in April and June of 1977 the defendant was incarcerated in the Jefferson County Jail which occupies part of the very same building as the office of the District Attorney.

Consequently, the defendant’s right to a speedy trial must be computed from the date criminal prosecution was instituted against him. This was May of 1975. This was when the defendant was initially “accused” of a crime. The period from this time until the defendant was brought to trial constitutes three and one-half years.

The defendant first learned of the robbery charge in October of 1977. In March of 1978, the defendant complained that he had been denied a speedy trial. Thus it cannot be said that the defendant waived his right under the Sixth Amendment. Ex parte State ex rel. Atty. Gen., 255 Ala. 443, 52 So.2d 158 (1951); Mayberry v. State, 48 Ala.App. 276, 264 So.2d 198, cert. denied, 288 Ala. 746, 264 So.2d 207 (1972).

The record reveals no valid reason for justifying delay. While missing witnesses may constitute a valid excuse, Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192, this excuse in this case will only cover a period from April until May of 1978. No justification appears for the delay for the period of May 1975 until April 1978 or even from the period of November 11, 1977 (the date the defendant was “accused” under the majority opinion) until the defendant’s trial date, with a two-month period excluded because of the missing witness.

In brief, the State attempts to justify the delay by arguing that “there is real doubt that the State would have been able to locate Appellant in order to bring him to trial” because of the “myriad of criminal charges in several jurisdictions” the defendant was facing. This assumption is unfounded and unauthorized as a matter of law. United States v. Salzmann, 417 F.Supp. 1139 (E.D.N.Y.), affirmed, 548 F.2d 395 (2nd Cir. 1976). The State has a constitutional duty to make a diligent, good-faith effort to gain custody of the accused and bring him to trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Turner v. State, 378 So.2d 1173 (Ala.Cr.App.), cert. denied, 378 So.2d 1182 (Ala.1979); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972).

The evidence shows that there was no such diligent, good-faith effort made in the case and that the failure to do so was unjustified.

The undisputed evidence reveals that the defendant was prejudiced by the delay in prosecution: One witness died while another could not be found and the detainer against the defendant kept him from participating in a federally sponsored half-way house.

For these reasons, I find that the defendant was denied his constitutional right to a speedy trial.


author: BOWEN, Judge.

text:
    Lewis FLOYD, Jr. v. STATE.
    5 Div. 524.
    Court of Criminal Appeals of Alabama.
    Oct. 28, 1980.
    Donald M. Phillips, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., J. Thomas Leverette, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

After giving oral notice of appeal from his conviction for robbery, the defendant filed a petition for writ of habeas corpus seeking to lower his $50,000.00 bail pending appeal. After a hearing, the trial judge denied the petition “after considering all the circumstances.”

The case is controlled by Pace v. State, 45 Ala.App. 132, 226 So.2d 676 (1969). The provisions of Alabama Code 1975, Section 12-22-170, governing bail pending appeal after conviction are not within the influence of the Alabama Constitution of 1901, Section 6, which prohibits excessive bail. Pace, 45 Ala.App. at 133, 226 So.2d 676.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: OVERTON, Justice.

text:
    Honorable Robert A. BUTTERWORTH, as Judge of the Circuit Court of the 17th Judicial Circuit, IN AND FOR BROWARD COUNTY, Florida, Petitioner, v. Rosa Lee FLUELLEN, Respondent.
    No. 57385.
    Supreme Court of Florida.
    July 24, 1980.
    Rehearing Denied Oct. 14, 1980.
    Jim Smith, Atty. Gen., and Benedict P. Kuehne and Paul H. Zacks, Asst. Attys. Gen., West Palm Beach, for petitioner.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for respondent.
   OVERTON, Justice.

The Fourth District Court of Appeal, in Fluellen v. Butterworth, 372 So.2d 943, 944 (Fla. 4th DCA 1979), certified the following questions to be of great public interest:

1. What is the applicability of Fla.R. Crim.P. 3.191(d)(3) in a situation where
(a) a defendant is granted a continuance, (b) the State is then granted a continuance, (c) the original Speedy Trial Rule time (180 days) passes, and (d) ninety days elapse from the State’s continuance without any intervening defense continuances or delays?
2. When the Speedy Trial Rule time limitations are waived by virtue of a defense continuance, under what circumstances, if any, are any specific time periods of the Speedy Trial Rule, Fla.R.Crim.P. 3.191, reactivated absent any demand by the defendant?

We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

For the reasons expressed, we find the ninety-day provision of existing Rule of Criminal Procedure 3.191(d)(3) does not apply when the state is granted a continuance after a prior continuance has been granted to the defendant. We quash the writ of prohibition issued by the district court and remand for further proceedings consistent with this opinion.

The relevant facts in the instant case reflect that on October 23,1977, the respondent was taken into custody for the murder of John Alford. The respondent moved for and was granted for continuance on March 9, 1978. On May 30, 1978, the state was granted a continuance and subsequently obtained two further continuances. On September 5, 1978, the respondent filed a motion for discharge which was denied October 18, 1978. Respondent then filed a petition for writ of prohibition in the Fourth District Court of Appeal, which was granted. The district court found that the defendant was entitled to a discharge because the state failed to bring her to trial within the ninety-day period set forth in Rule of Criminal Procedure 3.191(d)(3). The district court also cited its prior decision in State v. Reese, 359 So.2d 33, 34 (Fla. 4th DCA 1978), cert. denied, 365 So.2d 715 (Fla.1978), in which it stated:

[I]n the event of a State continuance, whether or not it follows an earlier defense continuance, the basic constitutional time limit, for the commencement of trial, is no more than 90 days after any State continuance, which is uninterrupted by any further defense motions for continuance or waivers, PROVIDING that the requisite 180 days has also run under Fla.R.Crim.P. 3.191(a)(1).

372 So.2d at 943.

The issue in this cause is whether a continuance by the state starts a new ninety-day time period within which the defendant must be brought to trial in accordance with the existing Rule of Criminal Procedure 3.191(d)(3), which reads as follows:

If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days.

We expressly hold that the ninety-day provision in rule 3.191(d)(3) is applicable only after a “pending motion for discharge” has been denied by the court on the grounds of a continuance or delay attributable to the accused. We reject the contention that this ninety-day provision is applicable whenever the state seeks a continuance. Such was not the intent of the rule, and we recede from the implication in Negron v. State, 306 So.2d 104 (Fla.1974), that this ninety-day provision applied to any continuance by the state. We note that this Court in Negron found that the defendant was entitled to a discharge because the 100-day delay after the state continuance was found to be unreasonable on constitutional grounds.

In State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), this Court held that when a defendant moves for and is granted a continuance, the 180-day limitation set forth in Rule of Criminal Procedure 3.191(a)(1) is no longer applicable. The defendant, however, is still entitled to a speedy trial. The appropriate standard for the trial court to consider in safeguarding this right to speedy trial was set forth by Justice Adkins in Cullen :

When the continuance was granted and the time limitations set forth in the rule were no longer applicable, the trial judge was nevertheless required to grant petitioners a speedy trial. In the absence of the time limitations specified in the Speedy Trial rule, the right to a speedy trial is necessarily relative. It is consistent with delays and the question of whether a trial date affords petitioners a speedy trial must be determined in the light of the circumstances of the particular case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. Any unreasonable delay arising from the negligence of the prosecution without fault or consent by the accused violates the guaranty of a speedy trial.

253 So.2d at 863. The position enunciated in Cullen is almost identical to the standards for speedy trial absent express time periods in statutes or rules as subsequently set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Although an order granting a defendant’s motion for continuance waives the right to trial within 180 days, the defendant still retains the right to demand a speedy trial within sixty days pursuant to Rule of Criminal Procedure 3.191(a)(2). This provision, which is always available to a defendant who is ready for trial, not only guarantees the defendant an opportunity for an expeditious trial date, but also avoids the necessity for a court determination of reasonableness for speedy trial purposes. The failure of a defendant to use this tool, designed to ensure his right to a speedy trial, is a factor which the trial court may take into consideration when determining the unreasonableness of any delay under the Cullen and Barker constitutional tests.

In summary, we emphasize that a defendant’s motion for a continuance does not relinquish all the defendant’s rights to a speedy trial. Although the granting of the defendant’s motion does waive the 180-day provision, the defendant retains his constitutional guarantee to a speedy trial within a reasonable time in accordance with the standards set forth in Cullen. If a defendant desires a more expeditious trial date, he may affirmatively demand a speedy trial and thus be brought to trial within sixty days. In the event a defendant believes he has been denied his right to speedy trial within a reasonable time and files a motion for discharge, a denial of that motion requires that the defendant be brought to trial within ninety days of the denial of defendant’s motion pursuant to rule 3.191(d)(3). The denial of this motion has the same practical effect as another type of affirmative demand for a speedy trial.

For the reasons expressed in this opinion, we quash the instant decision of the district court and disapprove of its decision in State v. Reese and the decision of the Third District Court of Appeal in Johnson v. State, 366 So.2d 525 (Fla. 3d DCA 1979), cert. denied, 376 So.2d 76 (Fla.1979). We remand this cause to the District Court of Appeal for further proceedings consistent with the views expressed in this opinion.

It is so ordered.

SUNDBERG, C. J., and ENGLAND, ALDERMAN and McDONALD, JJ., concur.

      . We modified Florida Rule of Criminal Procedure 3.191(d)(3) on July 18, 1980, to be effective January 1, 1981. In re Rules of Crim.P., No. 58,988 (Fla. July 18, 1980).


text:
    STATE of Florida, Petitioner, v. Leo JENKINS, Respondent.
    No. 52484.
    Supreme Court of Florida.
    July 24, 1980.

      Jim Smith, Atty. Gen., and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Chief Asst. Public Defender, West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Fourth District Court of Appeal, reported at 349 So.2d 1192 (Fla. 4th DCA 1977). The issue concerns the proper application of the existing speedy trial rule after an interlocutory appeal has been filed by the state. The instant case relied on the decisions of Cannon v. State, 332 So.2d 127 (Fla. 4th DCA 1976), and Mullin v. State, 307 So.2d 829 (Fla. 3d DCA 1974). We find these decisions conflict with State v. Smail, 346 So.2d 641 (Fla. 2d DCA 1977), and State v. Pearce, 336 So.2d 1274 (Fla. 1st DCA 1976). There is not only irreconcilable conflict but also confusion on the proper application of the speedy trial rule when there has been an appeal. We have jurisdiction.

The Fourth District Court of Appeal in the instant case and in Cannon and the Third District Court of Appeal in Mullin held that the existing Rule of Criminal Procedure 3.191(d)(2) requires a trial court to extend or toll the speedy trial period under those circumstances enumerated in the rule. Further, the Cannon court rejected the contention that section 924.071(2), Florida Statutes, grants the state an automatic stay, reasoning:

[I]t is obvious that the portion of Fla. Stat. § 924.071(2), which provides for an automatic stay during the pendency of such an appeal has been superseded by the provisions of the rule . . . . A contrary ruling would mean that the state could automatically deprive a defendant of the benefits of the Speedy Trial Rule, which did not exist when Fla. Stat. § 924.071(2) was adopted, merely by filing an appeal from an order of suppression and without any judicial determination that the appeal was not frivolous or had not been taken simply for the purpose of securing such a delay.

332 So.2d at 127. The Mullin court agreed with the Second District Court of Appeal in Esperti v. State, 276 So.2d 58 (Fla. 2nd DCA 1973), and held that extensions are to be granted, not presumed, and that the court order, not the circumstances, tolls the speedy trial rule.

On the other hand, both the Second District Court of Appeal in State v. Smail and the First District Court of Appeal in State v. Pearce held that an interlocutory appeal filed by the state pursuant to section 924.-071 automatically tolls the speedy trial time, and consequently no trial court order is necessary. The Pearce court rejected the argument that rule 3.191(d)(2) superseded the automatic stay provisions of section 924.071, as adopted by Florida Appellate Rule 6.3.b., and stated:

[T]he speedy trial rule’s provisions . may be seen as having a purpose . to permit the trial court to grant or deny an extension of the speedy trial period and a stay of the trial when the State proposed an interlocutory appeal in circumstances justified by § 924.07 but not by § 924.071(1). [Footnote omitted.]

336 So.2d at 1277.

We disagree with the interpretation stated in Smail and Pearce that section 924.071(2) automatically stays the right to a speedy trial. Neither a rule of this Court nor an act of the legislature can change the constitutional right to a speedy trial. It is our view that existing rule 3.191(d)(2) and section 924.071(2) do not contradict each other. They each.concern different matters. Section 924.071(2) is confined to the automatic staying of trial court proceedings when the state appeals certain pretrial orders. The staying provisions of this section do not concern or even refer to the tolling of the speedy trial time. This holding is in accordance with our prior decisions in Tucker v. State, 357 So.2d 719, 720 n. 6 (Fla. 1978), and Carroll v. State, 251 So.2d 866 (Fla. 1971). The manner of suspending the running of the speedy trial time during a state appeal is a question for the trial court. Our present rule recognizes that the trial judge has the sole responsibility for determining whether a defendant has been guaranteed his constitutional right to a speedy trial. The trial judge is in the best position to make certain under the individual facts of the case that an extension of time will not deprive the defendant of this constitutional right to a speedy trial. We note that the purpose of our procedural speedy trial rule is to ensure (1) the effective implementation of a defendant’s constitutional right to a speedy trial, and (2) the effective and expeditious prosecution of criminal offenses.

To avoid further confusion, it is necessary that we specify the effect that the various appellate actions have upon the speedy trial rights of defendants under the existing rule.

Appeals by the State

When the state files an interlocutory appeal or an appeal from a dismissal of an indictment or information, the state must request an extension of the speedy trial time period in accordance with rule 3.191(d)(2). In ruling on the request, the trial court’s only responsibility is to ensure that an extension does not violate the defendant’s constitutional right to a speedy trial pursuant to the standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The trial court should liberally allow requests for extension, and, when entering its order, it should provide a reasonable time period for the state to proceed to trial upon completion of the appeal. The trial court should deny a request only when the defendant affirmatively shows that his right to a speedy trial under the Barker standards is constitutionally prejudiced by the extension.

There are three ways that orders granting extensions have been entered and each has a different effect. First, if the trial court’s order grants an extension for the period of the appeal but is silent as to the time when the defendant must be brought to trial after the appellate court’s mandate, then the state must try the defendant within the time remaining as of the date of the notice of appeal of the original ninety-day or 180-day period. This is consistent with our decision in State v. Williams, 350 So.2d 81 (Fla. 1977). In Williams 135 days of the 180 days under the speedy trial rule had elapsed when the state filed an appeal. The trial court ordered a stay of the speedy trial rule but only “for the period of time necessary to complete appellate procedures . . ..” Id. at 82. When the trial was not commenced within forty-five days after issuance of the appellate court’s mandate, we held the defendant was entitled to a discharge under the order entered by the trial judge.

Second, if the trial court grants an extension for the period of the appeal plus “a reasonable period after issuance of the appellate mandate” without specifying the number of days, the time period under rule 3.191(a) is not controlling, and only the constitutional test of reasonableness is applied under the existing rule. The ninety-day period under rule 3.191(g) as it presently exists does not apply since the defendant is not being “tried again.” This provision, however, has been changed effective January 1,1981, and the ninety-day period under the new rule 3.191 will be applicable to state appeals.

Third, it is our view that the best practice in granting an extension under the present rule is for the trial court to specify the number of days, preferably ninety days, from the date of receipt of the appellate mandate as the time period in which the defendant must be brought to trial. It is important for the trial court to let both sides clearly know the period in which the case must be tried, and ninety days is the allowed period under the new rule 3.191(g) effective January 1, 1981.

Retrials and Appeals of a Defendant

First and foremost, it should be understood that any appeal by a defendant terminates the mandatory speedy trial period set forth in Rule of Criminal Procedure 3.191(a)(1) without the necessity of any action by the state to terminate or extend the speedy trial period.

When a defendant takes an interlocutory appeal, a remand for trial requires only that the state try the defendant within a reasonable time in accordance with constitutional standards.

The situation changes, however, when a defendant is to be retried as a result of a mistrial or the granting of a new trial by either trial court or appellate court action. In these instances, the provisions of the existing Rule of Criminal Procedure 3.191(g) are applicable and require the state to try the defendant within ninety days from the date of the appropriate court order. This is consistent with the new rule 3.191 effective January 1, 1981.

Affirmative Demand of Defendant

It must be recognized that in each of these circumstances—appeal by the state, appeal by the defendant, and retrial for the defendant—the sixty-day demand provision in rule 3.191(a)(2) is never terminated and remains an option always available to a defendant who can affirmatively state he is ready for trial after the appellate court enters its mandate or the trial court directs a new trial. It not only guarantees a defendant an opportunity for an expeditious trial date, but also avoids the necessity for a court determination of reasonableness when this standard is to be applied for speedy trial purposes. Further, when no specific time period is prescribed by order or rule and the constitutional reasonableness test is applicable, a defendant seeking a discharge on the grounds the state has failed to bring him to trial within a reasonable time must realize that his failure to use this rule provision is a factor which the trial court may take into consideration in determining the unreasonableness of any delay. See Butterworth v. Fluellen, 389 So.2d 968, No. 57,385 (Fla. July 24, 1980).

The Instant Case

In the instant case, the trial court granted a pretrial motion to suppress evidence. The state filed an interlocutory appeal and further specifically requested and was granted a six-month extension on the time for speedy trial. The state prevailed in the district court, which reversed the trial court’s order, but in so doing used up the entire six months, issuing its mandate more than six months after the date of the extension order. The defendant moved for a discharge for failure to commence the trial within the six-month extension period. The trial court denied the motion for discharge. The district court reversed and ordered the trial court to enter an order for discharge.

We find we must affirm the district court’s decision to discharge this defendant under the circumstances of this cause. The six-month extension period requested and received by the state began to run from the date of the extension order rather than from the date of the issuance of the appellate mandate. Under the terms of this order, it was the state’s responsibility to secure an additional extension as the end of the six months approached. Regrettably, the state made no such effort, and failure to do so mandates discharge of this defendant because there was a clear violation of the terms of a specific order.

For the reasons expressed, we approve the district court’s discharge of this defendant. The guidelines set forth in this opinion should help avoid the recurrence of this type of problem in cases under the existing rule. We emphasize that the new rule effective January 1, 1981, modifies and amends rule 3.191(g) and provides an express, uniform ninety-day period within which a defendant must be brought to trial after various appellate proceedings by either the state or defendant, or to retrial because of a mistrial or an order granting a new trial. We recommend that in granting extensions under the existing speedy trial rule when the state is seeking an appeal, trial judges should set forth a ninety-day period in which the state must bring a defendant to trial after notice is received by the trial court of the issuance of an appellate mandate. This ninety-day period is consistent with the new rule, and the establishment of this time period in the order could avoid possible confusion and unnecessary litigation.

It is so ordered.

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

ALDERMAN, J., concurs in the result only.

      . We modified Florida Rule of Criminal Procedure 3.191 on July 18, 1980, to be effective January 1, 1981. In re Rules of Crim. P., No. 58,988 (Fla. July 18, 1980).

      . Art. V, § 3(b)(3), Fla. Const.

      . The existing Florida Rule of Criminal Procedure 3.191(d)(2) reads as follows:
      When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for interlocutory appeals, for an appeal by the State from an order dismissing the case, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.


author: SUNDBERG, Chief Justice.

text:
    James CORLEY, Appellant, v. Lloyd MILLIKEN and “Capt. Jeffery,” Appellees.
    No. 58403.
    Supreme Court of Florida.
    Oct. 16, 1980.

      Warren L. Eddington of Eddington & Smith, Houston, Tex., for appellant.
    Andrew L. Waks of the Law Offices of Reginald M. Hayden, Jr., Miami, for appel-lees.
   SUNDBERG, Chief Justice.

James Corley brought suit in federal district court seeking recourse under the Jones Act, 46 U.S.C. § 688 (1976), for injuries received while he was a crewman aboard the ship “Capt. Jeffery,” owned by Lloyd Milliken. Although utilizing Key West, Florida, as a port, the “Capt. Jeffery” was outside Florida waters at the time the accident occurred. Upon motion by the defendants, the federal district court determined that the requirements of section 48.19, Florida Statutes (1977) had not been met and therefore dismissed the action for lack of personal jurisdiction. Corley appealed to the Fifth Circuit Court of Appeals which has certified the following question for our consideration:

Does Fla.Stat. § 48.19 (1977) authorize service of process on the Secretary of State of Florida in an action against a nonresident of Florida, who owns a vessel that uses a Florida port, arising out of a maritime accident that occurred outside of that state?

We answer the question in the negative.

Section 48.19 designates the secretary of state as the agent, for purposes of service of process, of nonresidents owning watercraft operated, navigated, or maintained in Florida. The secretary of state may be served “in any action or proceeding against the nonresident . . . growing out of any accident or collision in which the nonresident . . . may be involved while . . . operating, navigating, or maintaining . . . [a] watercraft in the state.” (Emphasis supplied.) Clearly, the statute restricts both the persons who may be served by this method and the proceedings in which such service is permissible. Only those actions arising from accidents which occurred while the nonresident was actually or constructively in the waters of the state are included within the scope of section 48.19. In addition, in order to meet constitutional standards, the exercise of personal jurisdiction over a nonresident must be limited to causes of action arising out of and directly related to the acts of the nonresident by which he “purposely availfs] . . . [himself] of the privilege of conducting activities within the state.” Aero Mechanical Electronic Craftsman v. Parent, 366 So.2d 1268, 1270 (Fla. 4th DCA 1979). See also First National Bank v. Collins, 372 So.2d 111 (Fla. 2d DCA 1979); Compania Anonima Simantob v. Bank of America International, 373 So.2d 68 (Fla. 3d DCA 1979); Horace v. American National Bank & Trust Co., 251 So.2d 33 (Fla. 4th DCA 1971); Hubsch Manufacturing Co. v. Freeway Washer & Stamping Co., 205 So.2d 337 (Fla. 1st DCA 1967).

Section 48.19 must be strictly construed and its jurisdictional requirements clearly alleged in the complaint. See Young Spring & Wire Corp. v. Smith, 176 So.2d 903 (Fla. 1965); Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978). Corley has not alleged that the accident causing his injuries occurred while Milliken was “operating, navigating, or maintaining” his vessel in Florida waters. Nor has he alleged that the accident arose from or was directly related to the nonresident’s in-state activities. In fact, the federal court’s recitation of the case reveals that the “Capt. Jeffery” was outside of Florida territory at the time of the incident. The mere circumstance of the “Capt. Jeffery” using a Florida port does not constitute sufficient connection to the cause of action to satisfy either the statutory or constitutional requirements for substitute service pursuant to section 48.19. Therefore, we find that, where a maritime accident occurs outside the state boundaries, the use of a Florida port does not satisfy the requirement of section 48.19 that the cause of action arise from an “accident ... in which the nonresident .. . may be involved while ... operating, navigating, or maintaining ... [a] watercraft in the state.”

The question certified by the United States Court of Appeals, Fifth Circuit, is answered accordingly.

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

       We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.510.