author:
SHORES, Justice.
      JONES, Justice

text:
    Ex Parte Mickey ELLISON. (Re: Mickey Ellison v. State of Alabama).
    80-497.
    Supreme Court of Alabama.
    Jan. 8, 1982.
    Frank L. McGuire, III, Opp, for petitioner.
    Charles A. Graddick, Atty. Gen., and Cedric R. Perry, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

The petitioner, Mickey Ellison, was convicted for escape from the Covington County Jail, where he had been serving a ten-year sentence for burglary, grand larceny, and a violation of probation. Sentence for the escape was fixed at thirty years in the state penitentiary. On appeal, the Court of Criminal Appeals affirmed the judgment, 410 So.2d 130. See, Ellison v. State, 373 So.2d 1247 (Ala.Cr.App.1979).

Approximately one year later, Ellison filed a pro se petition for writ of error coram nobis in the Covington Circuit Court. At the hearing, Ellison, then represented by counsel, sought to have the indictment set aside because of the decision of this Court in Behel v. State, 397 So.2d 163 (Ala.1981), concerning indictments based on Ala.Code 1975, § 13-5-65. Ala.Code 1975, § 13-5-65, states:

Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year. (Code 1852, § 354; Code 1867, § 3902; Code 1876, § 4600; Code 1886, § 3998; Code 1896, § 4707; Code 1907, § 6866; Acts 1923, No. 473, p. 627; Code 1923, § 4012; Code 1940, T. 14, § 153; Acts 1951, No. 371, p. 664.)

In the case of Behel v. State, supra, a majority of this Court held that the accused could not be convicted for escape under § 13-5-65 under an indictment which read (omitting formal parts) that the petitioner “did escape from Billy Townsend, Sheriff of Lauderdale County, the person having him in charge under authority of law.” This Court held that the indictment was insufficient because “it did not allege that petitioner had been convicted of any criminal offense, i.e., burglary, and it did not allege that Petitioner had been sentenced to the penitentiary.”

The indictment in Ellison’s case charged that “Mickey Ellison, a convict, ... did . .. unlawfully escape from the Covington County Jail in Andalusia where Sheriff W. E. Harrell had him in charge under authority of law before the expiration of the term for which he was sentenced.”

The trial court’s dismissal of the petition for writ of error coram nobis was affirmed by the Court of Criminal Appeals. Ellison’s application for rehearing was overruled. We granted Ellison’s petition for a writ of certiorari, which alleged a conflict with Behel v. State, supra.

Ellison alleges two points. First, due to our decision in Behel v. State, supra, Ellison asserts that the indictment in his case was not sufficient to sustain a conviction under Ala.Code 1975, § 13-5-65. Second, he asserts that the insufficiency of the indictment affects his constitutional rights and, because of that, a petition for writ of error coram nobis is the proper vehicle to raise the sufficiency of the indictment.

We note initially that there is a procedural difference in the case before us now and Behel v. State, supra. In Behel v. State, the issue of the sufficiency of the indictment was raised in the direct appeal, while Ellison has failed to raise it before this coram nobis petition. Therefore, we hold that, although Ellison may have some basis for his argument on the sufficiency of the indictment, we are unable to review it because the trial court is due to be affirmed for its decision that the use of a petition for writ of error coram nobis was not an available vehicle to carry his cause.

In support of his argument that a writ of error coram nobis is a proper procedural method of seeking review of a constitutional issue, Ellison cites King v. State, (Ala.) 349 So.2d 618, on remand, 349 So.2d 620, cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1976), where this Court said, in pertinent part:

“From the record of the trial court on this petition, the briefs and oral argument we perceive that the principal issues here concern the nature and availability of post-conviction relief, whether it is found under Rule 60(b), ARCP, or common law coram nobis and whether the petitioner has met the requirements thereunder.
“Noting that the case comes to us on certiorari from the Court of Criminal Appeals, we cannot go to the record since we are limited by findings of fact of that court. Grant v. City of Mobile, 291 Ala. 458, 282 So.2d 291 (1973). From what is before us, however* we cannot determine whether that court’s decision recognized that King had a remedy either under 60(b), or the common law standards set out in Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943), and case law thereunder, but failed to establish it, or whether it decided no remedy existed for King either under Rule 60(b), or common law coram nobis, despite the facts established in the trial court as set out in the record. From this record, however, it appears that the petitioner may have raised a serious constitutional issue. For this reason, we must remand this case to the Court of Criminal Appeals in order to allow that court to make such a determination as the record justifies.”

349 So.2d at 618.

After careful review of King v. State, however, we cannot find that its language supports Ellison’s argument. In fact, a reading of Ellison’s petition convinces this Court that he is seeking to use the writ as a delayed appeal of issues which could have been decided at the initial trial or on direct appeal. See, Stringer v. State, 372 So.2d 378 (Ala.Cr.App.1979); Thigpen v. State, 374 So.2d 401 (Ala.Cr.App.1979).

In Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), the Court stated:

“The writ of error coram nobis is not a substitute for other remedies such as an appeal, writ of error, certiorari, or motion for new trial. Redus v. Williams, 244 Ala. 459, 461, 13 So.2d 561 (1943); Groce [v. State, 48 Ala.App. 709, 267 So.2d 499], supra; Stephens [v. State, 36 Ala.App. 57, 52 So.2d 169], supra. The writ is not ‘the wild ass of the law which the courts cannot control.’ Anderson v. Buchanan, 292 Ky. 810, 823, 168 S.W.2d 48, 55 (1943). Our courts have stated that the writ does not serve as a substitute for an appeal, Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966), Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966), and is not ‘an omni-um gatherum or catchall of accordion like remedies to solve (or salve) all the supposed wrongs of those once duly convicted,’ Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976), or an ‘omnium gatherum to right all post conviction discoveries or claims of error.’ Ex parte Banks, 42 Ala.App. [669] at 672, 178 So.2d [98] at 101. The writ does not serve the purpose of a ‘probable cause hearing,' Seibert v. State, 343 So.2d 788 (Ala.1977), and is not available to retry indictments. Bush v. State, 50 Ala.App. 293, 278 So.2d 741 (1973); Creel v. State, 53 Ala.App. 226, 298 So.2d 647 (1974).”

366 So.2d at 339.

Further on in the opinion, the Court also said:

“The writ is appropriate only when the petitioner’s claim is based on facts which were not known and could not have been discovered with the exercise of reasonable diligence at the time of trial. Senn v. State, 43 Ala.App. 323, 189 So.2d 870 (1966); Thornburg v. State, 42 Ala.App. 70, 152 So.2d 442 (1963). ‘Facts known to the accused debar him from seeking cor-am nobis.’ Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976). If the petitioner could reasonably have discovered the information in time to prevent the original conviction the remedy of coram nobis is not available. Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Isom v. State, 44 Ala.App. 6, 200 So.2d 506 (1966), reversed on other grounds, 281 Ala. 189, 200 So.2d 511 (1967). The writ will not lie where a remedy against the error complained of, though available, was deliberately or negligently not used at the trial that resulted in the judgment of conviction. In such cases the petitioner is generally held to have waived his right to contest the judgment. Johnson v. Williams, 244 Ala. at 395, 13 So.2d 683; Redus v. Williams, 244 Ala. at 459, 13 So.2d 561; Ex parte Taylor, 249 Ala. 667, 670, 32 So.2d 659 (1947).”

366 So.2d at 340.

The issue concerning the sufficiency of the indictment was not raised at the original trial or on the subsequent appeal. Therefore, the remedy of coram nobis is not available. This is true even though, as Ellison has asserted, it is a constitutional issue that is raised by the writ because “one may waive and does waive his constitutional rights if he fails to assert or claim them at the appropriate time and place, and according to the established course of procedure.” Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943). Therefore, the judgment is affirmed.

AFFIRMED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur in the judgment of affirmance, because I would overrule Behel. If Behel is correct law, rendering the defendant’s escape conviction invalid due to a faulty indictment, then, in my opinion, coram nobis may be a proper remedy. While ordinarily a conviction based on an indictment insufficient to invoke the jurisdiction of the court may not be collaterally challenged, where such invalidity is judicially established after the conviction under review, a “factual” issue may be invoked, thus giving coram nobis a viable field of operation. See 24 C.J.S. Criminal Law § 1605(1).

But I do not agree that the indictment is deficient. An indictment that charges the Defendant with unlawfully escaping from the county jail where the sheriff held him under authority of law contains all the requisites of specificity to comport with due process and, in my opinion, is a valid indictment.


source: Caselaw Access Project

author: TYSON, Judge. DeCARLO, Judge,

license: Public Domain

text:
    Larry Keith HOLLINGSWORTH v. STATE of Alabama.
    1 Div. 229.
    Court of Criminal Appeals of Alabama.
    May 26, 1981.
    Rehearing Denied June 23, 1981.
    George K. Elbrecht, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Larry Keith Hollingsworth appeals from the revocation of his probation by the circuit court following a hearing pursuant to the provisions of § 15-19-1 et seq., Code of Alabama 1975.

Without dispute, the appellant had been convicted at the Spring, 1979 term of the Circuit Court of Monroe County of burglary in the second degree and had been granted youthful offender status by the circuit court and sentenced to eighteen months in custody of the Director of the Department of Corrections. The execution of this sentence was suspended and the appellant, Hollingsworth, placed on probation for a period of eighteen months by the circuit court.

Thereafter Hollingsworth was charged with the offense of Driving While Intoxicated, appeared in the District Court of Monroe County, Alabama, without counsel, or being offered the assistance of counsel, and entered a plea of guilty to this charge. This occurred on October 14,1980, and Holl-ingsworth thereafter reported this to his probation officer, Hollingsworth then being in the seventeenth month of his eighteen month probationary period.

Thereafter, the probation officer reported this conviction to the circuit court and a revocation hearing was set in circuit court for November 5, 1980.

At the revocation hearing, the state placed in evidence through the circuit clerk, a certified copy of the proceedings in district court, showing the Driving While Intoxicated conviction and on this basis, circuit court was asked to revoke and did revoke the probationary status of the appellant, Larry Keith Hollingsworth.

I

The issue thus presented by this appeal is whether or not the circuit court may revoke probation following a hearing, on the basis of a misdemeanor conviction obtained in district court, without first affirmatively establishing that the accused was represented by counsel or intelligently waived counsel at the time of such prior conviction in the district court.

The Supreme Court of Alabama has set forth the guidelines to be used at a probation revocation hearing in its opinion in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975) and authorities therein cited. See also Bullock v. State, Ala.Cr.App., 392 So.2d 848, cert. denied, Ala., 392 So.2d 852 (1980).

In the case at bar, it affirmatively appears that the appellant, Hollingsworth, entered his plea of guilty without being offered counsel or waiving counsel, or being represented by counsel at the time of such guilty plea.

We are of the opinion that the opinions of the U. S. Supreme Court in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), are here controlling.

It therefore follows that the circuit court was in error in revoking probation without affirmatively establishing that the accused either had counsel or intelligently waived counsel at the time of entering a plea of guilty in the Monroe County District Court to the Driving While Intoxicated charge. See also Highsmith v. State, 55 Ala.App. 272, 314 So.2d 874 (1975) and authorities therein cited.

For the reasons shown, the judgment of the circuit court is hereby reversed and this cause is remanded.

REVERSED AND REMANDED.

All the' Judges concur, except DeCARLO, J., who dissents.

DeCARLO, Judge,

dissents.

In my opinion, neither Burgett v. Texas, supra, nor Baldasar v. Illinois, supra, is controlling here. Burgett held that a prior uncounselled felony conviction may not be used either to support guilt of another offense or to enhance punishment for a subsequent conviction under a recidivist statute. Baldasar applied the same rule to uncoun-selled misdemeanors.

The introduction of appellant’s DWI conviction neither supported his guilt of second degree burglary nor enhanced his punishment for that offense. See Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). It merely resulted in appellant’s having to serve an already-imposed sentence; therefore, I must respectfully dissent.


author: FAULKNER, Justice. MADDOX, Justice

text:
    Ex parte State of Alabama, Ex Rel. Attorney General (Re Larry Keith HOLLINGSWORTH v. STATE of Alabama).
    80-685.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      Charles A. Graddick, Atty. Gen., and Bill North and Sandra M. Solowiej, Asst. Attys. Gen., for petitioner.
    George K. Elbrecht, Monroeville, for respondent.
   FAULKNER, Justice.

Writ quashed as being improvidently granted.

JONES, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

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

MADDOX, Justice

(dissenting).

I respectfully dissent. In my opinion, Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, are inapplicable to a revocation of probation proceeding because an uncounseled conviction is not invalid for all purposes. Cf. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

TORBERT, C. J., and ALMON, J., concur.


author: BOWEN, Judge.

text:
    Dewayne WHITE v. STATE.
    6 Div. 492.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      David N. Lichtenstein and Hugh C. Henderson, Birmingham, for appellant.
    Charles Á. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first-degree murder of William Stin-son. Sentence was life imprisonment.

The only issue raised on appeal is the refusal of the trial judge to give six of the defendant’s written requested charges.

I

Requested Charge 20:

“In determining the credibility of witnesses, the jury should also consider the manner of their testifying, whether they were frank and open or whether they were evasive and should take into consideration the witness’ character and any admitted acts of wrongdoing.”

On the credibility of witnesses, the trial judge charged:

“The credibility of a witness is solely for you the jury, to decide. Subject the testimony to the same scrutiny that you would subject any important conversation or act. The mere fact that a witness was called by the State or is a state or county or city agent, does not entitle such a witness’ testimony to any more weight or credence than that of any other witness.”

The defendant cites Storey v. State, 71 Ala. 329 (1882) and Roberson v. State, 24 Ala.App. 244, 133 So. 744 (1931), to support his allegation of error in the refusal of Charge 20. However, the essence of the charge in Storey and Roberson was that the credibility of the witnesses was a matter for the jury to decide. The charge in those two cases was:

“Appellant requested the court to give the following written charge, which was refused: ‘If there is a conflict in the testimony of the witnesses offered by the State, and those offered by the defendants, the jury must determine which of said witnesses they will believe; and in determining what weight they will attach to the testimony of any particular witness, they may look to the manner of such witness on the stand, and to his interest and feeling (if any) in the case, and as to whether or not he has been contradicted by other witnesses in the cause, or by his own previous statements.’ ”

While the actual language of requested Charge 20 was not embraced within the court’s oral charge, the import and intent of the requested charge were covered. For that reason we are unwilling to predicate reversible error upon the refusal of requested Charge 20.

II

Requested charges number 9 and 10 dealt with a witness testifying under a promise of immunity or hope of reward. Although witness Robert Tubbs had been indicted for this offense, there was no evidence whatsoever that he or any other witness had been promised any immunity or reward for their testimony. The requested charges were therefore abstract and properly refused. Boggs v. State, 270 Ala. 209, 116 So.2d 903 (1960).

Requested charge number 9 was also specifically and properly refused because it contained a grammatical error. Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977).

III

The trial judge also refused defendant’s requested charge number 17.

“The defendant has presented evidence tending to show that he acted in self-defense. He has no burden of proof to sustain as to this. If his evidence, considered with all the other evidence, raises a reasonable doubt as to his guilt, he is entitled to acquittal. He is not obliged to establish this defense beyond a reasonable doubt, or even by a preponderance of the proof. The prosecution must prove his guilt beyond a reasonable doubt.”

This charge, besides tending to confuse, contains a fatal- defect: It asserts that there is evidence of certain facts. “It has been frequently held that courts cannot be required to declare to juries that there is or is not evidence of particular facts. Their business is to declare the law.” Griffin v. State, 165 Ala. 29, 45, 50 So. 962 (1909). The court need not give requested charges that there is or is not evidence of certain facts. Watts v. State, 8 Ala.App. 264, 63 So. 18 (1913); Farley v. State, 34 Ala.App. 54, 37 So.2d 434, cert. denied, 251 Ala. 391, 37 So.2d 440 (1948); Huguley v. State, 15 Ala.App. 189, 72 So. 764 (1916). Requested instructions that the evidence “tends” to show certain matters are properly refused as invasive of the province of the jury. Anthony v. State, 30 Ala.App. 425, 7 So.2d 513 (1942); Conn v. State, 19 Ala.App. 209, 96 So. 640, cert. denied, Ex parte Conn, 209 Ala. 453, 96 So. 642 (1923).

IV

The refusal of defendant’s requested charge number 8 was properly within the discretion of the trial judge. That charge was:

“The weight of the evidence is not necessarily determined by the number of witnesses testifying on either side. The jury should consider all the facts and circumstances in evidence to determine which of the witnesses are worthy of greater credence. The jury may find that the testimony of a smaller number of witnesses on one side is more credible than the testimony of a greater number of witnesses on the other side.”

This charge attempts to express, in an awkward fashion, the concept that the number of witnesses in a criminal trial is not the basis for determining the issue of guilt since a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, 338 So.2d 1030 (Ala.Cr.App.), cert. denied, 338 So.2d 1033 (Ala.1976); Mann v. State, 20 Ala.App. 540, 103 So. 604 (1925). However, disparity in the number of witnesses is a circumstance not to be overlooked, especially where the witnesses have had an equal chance for observation and are of equal credibility and the jury may properly consider the number of witnesses testifying. 88 C.J.S. Trial, Section 369 (1955); 23A C.J.S. Criminal Law, Section 1248 (1961).

We also find the charge somewhat confusing in that it discusses the weight of the evidence and the credibility of witnesses.

V

Defendant’s requested charge number 5, dealing with the felony murder doctrine, is not hypothesized on a “belief from the evidence” and was therefore properly refused. Barnett v. State, 389 So.2d 535 (Ala.Cr.App.), cert. denied, 389 So.2d 536 (Ala.1980).

The defendant was well represented at trial and on appeal.

We have searched the record and found no error prejudicial to the defendant’s rights. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Lee Andrew BENNETT v. STATE.
    6 Div. 541.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    Jerome S. Grand, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Assault in the first degree; twenty years.

The appellant was charged with shooting Marion Dale, a woman with whom he had been living for approximately two years. As a result of the wound in her abdomen, she remained in the hospital for approximately one hundred days and required surgery eleven times, including a colostomy.

According to Ms. Dale, the shooting occurred when she came home after work on April 15, 1980, and had an argument with appellant over who had brought her home. Ms. Dale testified that she went upstairs to her bedroom to change clothes, and when she returned, the appellant was standing at the foot of the stairs. He pointed a gun at her and fired. The appellant testified that he was asleep when the victim came home, and after she went upstairs, she returned with a pistol. He said that a struggle occurred during his attempt to take the gun away from her and she was shot. After the shooting, the appellant called the paramedics and was later taken into custody by the police.

I

In our examination of the record, we have been unable to determine the circumstances surrounding the appellant’s waiver of his preliminary hearing without his counsel’s being present. We therefore remand this cause to the circuit court for a hearing to determine that issue. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); see Allums v. State, Ala.Cr.App., 368 So.2d 313 (1979); Fletcher v. State, 52 Ala.App. 303, 291 So.2d 757 (1973).

We direct the trial court to conduct a hearing with the appellant and his counsel present, to determine what the circumstances were surrounding the appellant’s waiver of his preliminary hearing, whether counsel, who had been previously appointed, had advised him to waive, and whether he was prejudiced by the lack of a preliminary hearing.

The trial court is further instructed that the hearing be held as soon as possible, that a full record be made, together with the court’s determination of the above issues, and that a transcript of the proceedings under the seal of the clerk be forwarded to this court for review.

REMANDED WITH DIRECTIONS.

All the Judges concur.

1


author: SHORES, Justice.

text:
    Ex parte State of Alabama (Re Lee Andrew BENNETT v. STATE of Alabama)
    80-788.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   SHORES, Justice.

WRIT- DENIED — NO OPINION.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Lee Andrew BENNETT v. STATE.
    6 Div. 541.
    Alabama Court of Criminal Appeals.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Jerome S. Grand, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   ON RETURN TO REMAND

DeCARLO, Judge.

We have examined the transcript of evidence of the hearing conducted after we remanded with directions. This transcript shows, and the appellant’s attorney admits that, there was never a request for a preliminary hearing. Under this circumstance, the question of waiver of a preliminary hearing without counsel is not before us.

AFFIRMED.

All the Judges concur.


text:
    Robert Frank SIMAS v. STATE.
    7 Div. 841.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    As Corrected on Denial of Rehearing Oct. 27, 1981.
    Certiorari Denied, Dec. 18, 1981 Alabama Supreme Court 81-148.

      Charles C. Hart and Kathleen M. Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Etowah County returned an indictment against the appellant, Robert Frank Simas, charging him with the offense of theft of property in the first degree, a Class B Felony. The appellant entered a plea of not guilty. A jury found the appellant guilty as charged in the indictment. The trial court entered a judgment sentencing the appellant to the penitentiary of the State of Alabama for a term of ten years. The appellant’s application for probation was denied. The appellant gave notice of appeal to this Court.

The appellant was represented at all proceedings in the trial court, and in this Court, by the same counsel appointed by the trial court. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why his conviction should be reversed: first, the trial court erred to the prejudice of the appellant by allowing into evidence, over his objection, three automobile tags found in defendant’s possession, where defendant was not indicted for possession of stolen tags, and such error was not cured by the trial judge reversing his prior ruling and excluding the three tags from evidence; second, by allowing a stolen Florida license plate which the appellant possessed to be admitted into evidence by the state, when the appellant was not indicted for stealing said Florida license plate; third, that the state’s evidence was not sufficient to sustain a conviction.

State’s evidence tended to prove that on January 3, 1981 James C. Hood was the owner of one 1979 model Datsun automobile No. A. S. 1301630019, tag no. FXN269, purchased by him on December 23, of the value of $9,500.00, and one gray suitcase and its contents, of the value of $475.00, $120.00 in cash money; that his office was located at 701 First Avenue in the City of Gadsden, Etowah County, Alabama; that at about 12:30 p. m. he parked his 1979 Datsun automobile beside his office and went in the building and worked until about 3:45 p. m., at which time he went to get his automobile and found it was missing; that when he parked his Datsun automobile he left in it a gray suitcase containing clothes, a black wallet containing credit cards, $120.00 in cash in the console between the two front seats, and a pair of shoes on the back seat; that the car was not locked when he left it; that he left the keys to the car under the front seat; that he did not give anybody permission to remove his car from its location; that the car was later returned to him; that state’s exhibit two is a pair of brown Freeman shoes which belong to Mr. Hood and were on the back seat in his automobile when he last saw them when he parked his automobile at 701 First Avenue.

State’s evidence further tended to prove that at about 3:00 a. m. on January 12, 1981 Matthew M. Hunt, a police officer employed by the City of Lancaster, in the State of Texas, observed on a parking lot of Skelly’s Truck Plaza at 1100 North Beckley in the City of Lancaster, Texas, a Datsun, two-door vehicle that it was parked by several eighteen-wheeler trucks in such a manner that you could not see it until you got almost directly on it; that the Datsun vehicle had a Florida license plate no. NXT928 displayed on the back; that due to the place and manner the vehicle was parked Hunt had a vehicle registration check run on the license plate and determined that the license plate was stolen from Pensacola, Florida in Escambia County; that the appellant was alone in the vehicle, and appeared to be asleep, and his body was covered by a blanket, that Officer Hunt knocked on the door of the vehicle with his flashlight, and the appellant awoke, moved the blanket from over his body, and attempted to start the motor; that Officer Hunt identified himself as a police officer, and was wearing a police uniform, and ordered the appellant to stop, but he continued to try to start the motor of the vehicle; that Hunt opened the door of the vehicle, pointed his weapon at the appellant, and the appellant continued to try to start the motor of the vehicle, at which time Officer Hunt pulled the appellant out of the vehicle; Officer Hunt made an in-court identification of the appellant as being the same person he found in possession of the vehicle in Texas on January 12, 1981; that the appellant first told Officer Hunt that appellant’s name was James Hood, and stated he did not have any identification, or registrations of the vehicle, and that the appellant later stated to Officer Hunt that appellant had borrowed the vehicle from James Hood in Pensacola, Florida; Officer Hunt then secured the information that the vehicle was stolen January 3, 1981, from Gadsden, Alabama; the appellant was then arrested, handcuffed, and sent to jail; that state’s exhibit number 1 was a manila envelope containing four automobile vehicle license plates, one marked Florida NXT928 was on the rear of the vehicle, when Officer Hunt first saw the vehicle, and was a stolen, Florida license plate; the other three were Alabama automobile vehicle plates and were located in the luggage of the appellant in the rear seat of the vehicle in question. State’s exhibit 1 was introduced into evidence over the objection of the appellant.

The record shows that there was a discussion outside of the hearing of the jury between the trial judge and counsel for state and appellant, that the three Alabama tags were removed from state’s exhibit 1, and withdrawn from the evidence, and only the Florida tag remained in evidence. Whereupon, the court instructed the jury:

“THE COURT: Ladies and gentlemen, you will disregard the evidence introduced about the three tags, leaving the one tag that was taken off the car, which was the Florida tag. But, you will disregard any evidence concerning the other three.”

The state rested its case, and the appellant moved to exclude state’s evidence because the state failed to make out a prima facie case, and the trial court overruled said motion.

The appellant testified in his own behalf, and his evidence tended to prove the following: That he was in Gadsden, Alabama on January 3, 1981; that he was found in the car in Lancaster, Texas on January 12, 1981, but did not steal the car; that he met a friend, Howard Johnson, in Gadsden on the night of January 3, 1981; that Johnson claimed to be the owner of the automobile in question; that he left the bar in Gadsden on the night of January 3, 1981, with Johnson in the Datsun, and the next day they drove to Pensacola, Florida where Mr. Johnson lived, and Mr. Johnson picked up some personal belongings; that they next traveled together to New Orleans, Louisiana where, on January 7,1981, Mr. Johnson left for a job in Australia; that Mr. Johnson gave the appellant his car to keep for him during the eighteen months when Mr. Johnson would be in Australia, and gave the appellant the clothing, and the luggage in the car; that Johnson gave the appellant a slip of paper signed by Johnson which gave the appellant permission to use the car in Mr. Johnson’s absence;' that the appellant placed the slip of paper in his billfold and did not remove it until he was in the Eto-wah County Jail in Gadsden; that the appellant drove from New Orleans to Texas and was arrested in Lancaster, Texas on January 12, 1981. The appellant rested his case, and the state called Mr. Jimmy Flan-nagan, the Gadsden, Alabama police officer who accompanied the appellant on the trip from Lancaster, Texas back to the Etowah County Jail in Gadsden. Mr. Flannagan testified in substance that he went through all the contents of the appellant’s wallet during the trip back and did not see the permission slip in the wallet. The slip was introduced into evidence as appellant’s exhibit 1.

The appellant requested the affirmative charge, and it was refused by the trial judge.

The first issue complained of by the appellant in his brief is that the trial court erred to his prejudice by allowing into evidence three Alabama automobile license plates contained in the envelope containing state’s exhibit 1. Without deciding that the trial court erred by such action, we are of the opinion, and so hold, that if any error was committed, it was fully cured by the trial court’s withdrawing the three Alabama tags from the evidence, and instructing the jury to disregard the three Alabama tags. We quote from the case of The State of Alabama v. Givens, 5 Ala. 747 at page 755: “The withdrawal of improper testimony, is not to be regarded as the privilege of the party merely; it is not only the right but the duty of the court, upon becoming convinced, pending the trial, that it has sanctioned the admission of illegal evidence, so to inform the jury, and direct them to discard it.” State v. Givens, supra; Martin v. State, Ala.Cr.App., 343 So.2d 810; Certiorari Denied, Ex Parte Ellie Fleming Martin, III, Ala., 343 So.2d 815; Huckabaa v. State, 19 Ala.App. 11, 95 So. 587; Tinker v. State, Ala.Cr.App., 389 So.2d 597.

The second issue contained in the appellant’s brief is that the trial court erred to his prejudice when it admitted into evidence a stolen Florida license plate which the appellant possessed at the time of his arrest in Lancaster, Texas. The Florida license plate was on the stolen automobile in the possession of the appellant and was No. NXT928. When the vehicle was last seen parked by the office of its owner, Mr. Hood, in Gadsden, Alabama, it had on Alabama license tag no. FXN269. The ground assigned by appellant for his objection was that the appellant was not on trial for stealing a Florida state license plate. The possession of, and display of, the stolen Florida automobile license plate on the rear of the 1979 Datsun Automobile could reasonably prove a desire to escape with, and to conceal the true owner and identity of the Datsun automobile. Evidence of other larcenies of the defendant are admissible if such evidence is material, and tends to prove the now charged larceny. We hold that the trial court did not err to the prejudice of the appellant when it allowed the stolen Florida plate into evidence. McElroy’s Alabama Evidence, Third Edition, 70.-01; McGuire v. State, Ala.Cr.App., 401 So.2d 1126, Certiorari Denied, Ala., 348 147; Lowe v. The State, 134 Ala. 154, 32 So. 273; Summers v. State, Ala.Cr.App., 348 So.2d 1126, Certiorari Denied, Ala. 348 So.2d 1136; Harmon v. State, 47 Ala.App. 576, 258 So.2d 917.

The third issue contained in the appellant’s brief was that the state’s evidence was not sufficient to sustain a conviction for theft of property in the first degree. The evidence presented by the state in this case tended to prove the owner of the Datsun Automobile was in possession of the automobile and its contents on January 3, 1981 in the City of Gadsden, Etowah County, Alabama, at 12:30 p. m., when he parked the automobile by his office; that the value of the automobile was $9,500.00; that the contents of the automobile were of the value of $595.00; that at about 3:45 p. m. when he went to where he had parked the vehicle it was gone; that he gave no one permission to move the vehicle. State’s evidence tended to prove that the appellant was in possession of the vehicle and its contents in the City of Lancaster, Texas on the 12th day of January, 1981, with a stolen Florida tag displayed on the rear of it. That appellant made conflicting statements about his identity and the ownership of the vehicle when he was arrested in Lancaster. The appellant’s evidence tended to prove that a friend of the appellant was leaving the United States to go to Australia and gave the appellant the car to keep for him and the right to use it during the eighteen months he would be in Australia, and also gave the appellant the clothing and baggage in the car. The appellant admitted that when he was arrested in Lancaster, Texas, he was in possession of the Datsun automobile and was wearing a pair of shoes that were identified as the property of the owner of the stolen vehicle. Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use or to deprive the owner thereof. McMurphy v. State, Ala.Cr.App., 358 So.2d 1065. We hold that the trial court did not err when it submitted the facts to the jury for its determination. Possession of recently stolen property is a fact from which a jury may infer the defendant’s guilt. The issue of appellant’s guilt or innocence was for the jury. Smith v. State, Ala.Cr.App., 401 So.2d 185, Certiorari Denied, Ala., 401 So.2d 187; Gunaca v. State, Ala.Cr.App., 383 So.2d 590; Harper v. State, Ala.Cr.App., 389 So.2d 184; Wilkins v. State, Ala.Cr.App., 373 So.2d 353; Bullock v. State, Ala.Cr.App., 400 So.2d 937.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Douglas EVANS v. STATE.
    7 Div. 834.
    Court of Criminal Appeals of Alabama.
    Nov. 24, 1981.

      Demetrius C. Newton, Birmingham, and Donald R. Hamlin, Pell City, for appellant.
    Charles. A. Graddick, Atty. Gen., and James F. Hampton & J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   ON REHEARING

BOWEN, Judge.

Initially we affirmed the judgment of the Circuit Court without opinion.

The original brief on behalf of the defendant was filed by Attorney Demetrius C. Newton, who was retained to represent the defendant following his trial. On December 3, 1980, the defendant’s appointed trial attorney, Donald R. Hamlin, was granted leave to withdraw as the Attorney of Record for the Defendant in light of Mr. Newton’s retention.

On application for rehearing defendant’s trial counsel, after having withdrawn from his representation of the defendant, now alleges that the defendant and his family have retained him “to undertake any and all further proceedings that may be available to thé Appellant.” In a supplemental brief on rehearing, defendant’s new appellate counsel argues two issues.

I

The record shows that the defendant was both arraigned and tried on the same day. The record does not show when counsel (Hamlin) was appointed to represent the defendant at trial. Therefore, the contention that the appointment of counsel on the day of the defendant’s trial converted the defendant’s right to effective assistance of counsel into a sham and violated his constitutional rights is not supported by the record. The “case action summary” sheets attached by the defendant to his supplemental brief on rehearing are not part of the record and cannot be considered by this Court. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.), cert. denied, 347 So.2d 1384 (Ala.1977). There has been no motion to correct or modify the record under Rule 10(f) A.R. A.P.

This issue is raised for the first time on application for rehearing. At trial there was no request for a continuance. Nothing in the record reflects that the defendant ever presented this issue in any form to the trial court. Review on appeal is limited to the consideration of questions properly raised in the trial court. Harris v. State, 347 So.2d 1363 (Ala.Cr.App.), cert. denied, 347 So.2d 1368 (Ala.1977). Here the question was never even presented. Consequently, this Court has nothing to review on this issue.

II

The second issue is:

“Did the trial Court abuse its discretion in not suspending the trial of the Appellant when ample evidence was introduced at trial through the testimony of witnesses to put the trial Judge on notice that the accused was possibly insane at the time the crime was committed or possibly unable to aid in his own defense at trial?” (Appellant’s Supplemental Brief on Rehearing)

This issue was also argued by the defendant’s original appellate counsel.

At trial, defendant’s counsel did not allege or argue that the defendant was incompetent to stand trial or could not aid in his own defense. The issue of the defendant’s sanity at the time of the crime was presented by a plea of not guilty by reason of insanity.

Our review of the record does not reveal “ample evidence” of the defendant’s incompetency. Nettie Henderson, the defendant’s sister, testified that the defendant had been admitted to a mental institution on “more than a dozen” occasions and that he had only been out of a mental institution about one month before the crime occurred.

Sara Bell, the Chief Clerk of the Probate Office, testified that the defendant “had been sent to the VA Hospital from our office numerous times.” Three commitment hearings for the defendant had been held since 1976 and the defendant was actually committed for “evaluation and treatment” on April 8, 1976, and on December 13, 1979. With regard to this last commitment, the defendant was released with the following comment:

“It is the opinion of the professional staff of this medical center (Veterans’ Administration) that Mr. Douglas H. Evans, a veteran committed to this facility by your Court on December 13, 1979, has recovered to the extent that he no longer poses a real threat of substantial harm to himself or to others, and has been discharged from this medical center effective this date (September 19, 1980).”

Dr. Milton G. Norrell, Jr. testified as a defense witness that the defendant “has had mental problems” going back “for years and years and years.” Although Dr. Norrell testified that he could not testify to the defendant’s mental condition at the time of the crime, the most favorable testimony he gave that could have been used by the jury as a basis for insanity was:

“This man has been in and out of mental hospitals for many, many times. I don’t know just how many times; but it is my impression that it has been many times. He has been wild ... perhaps it has nothing to do with this case, and maybe I shouldn’t mention this ... He has been brought to the office by his father, who couldn’t control him. On a previous occasion, he shot a brother of his. He has had problems. As to that interfering with him knowing right from wrong, that is a problem that is very hard to say. I don’t know of this idea of people who are mentally deranged not knowing right from wrong. I know there are some other problems involved in it.”

The defendant testified in his own behalf and stated:

“Since 1970, when I come out of service, I’ve had emotional problems. You have plead me not guilty by reason of insanity, and I wish to withdraw that plea. I have had emotional problems; but to go so far as to say I’m insane, I wouldn’t say that. I have gone to the Veterans Hospital since 1970.”

Although the trial judge instructed the jury on the defense of insanity, our review of the record convinces us that there was insufficient evidence to show that at the time the crime was committed the defendant was legally insane. See Herbert v. State, 357 So.2d 683 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978).

Although the issue of the defendant’s competency to stand trial was raised in a motion for a new trial, the record does not show whether that motion was argued or whether any testimony or evidence was presented in support of the motion. The mere fact that an accused had been recently released from a mental institution before the commission of the crime charged and had a history of civil commitments to hospitals for mental and psychological reasons does not automatically indicate that the accused must be incompetent to stand trial. Under the circumstances presented by this case we find no evidence to support the contention that the trial judge should have taken steps to insure a reasonable and legal determination of the defendant’s competency to stand trial. We find no evidence of facts which were present before the trial judge which would have created a reasonable and bona fide doubt as to the mental condition of the defendant to stand trial. Atwell v. State, 354 So.2d 30 (Ala.Cr.App.1977), cert. denied, 354 So.2d 39 (Ala.1978).

The issues and arguments presented by the defendant in his supplemental brief on application for rehearing lack factual merit supported by the record. We have searched the record for error and found none. The judgment of the Circuit Court is due to be affirmed and the application for rehearing is overruled.

AFFIRMED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


text:
    David Earl JOHNSON a/k/a Elijah Bell Johnson v. STATE.
    2 Div. 318.
    Court of Criminal Appeals of Alabama.
    Jan. 26, 1982.
    David Earl Johnson, pro se.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is a pro se appeal from the summary denial of a petition for writ of habeas corpus. Johnson, an inmate of Leavenworth Federal Penitentiary in Kansas, seeks to have his two 1948 convictions for grand larceny “vacated, set aside and expunged” from his record. He alleges that these convictions keep him at a “high security level institution.”

Johnson contends that he was forced to plead guilty in 1948 and was not represented by counsel. He served his sentence— four years for both convictions.

“No prisoner can apply for habeas corpus under the Alabama statute if he or she is held by another sovereign, such as the United States, ...” Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 621 (1978); Accardo v. State, 39 Ala.App. 453, 102 So.2d 913, cert. stricken, 268 Ala. 293, 105 So.2d 865 (1958).

There being no jurisdiction over the subject matter, the appeal is dismissed.

DISMISSED.

All Judges concur.


author: PER CURIAM.

text:
    Charles M. VAUGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 52835.
    Supreme Court of Florida.
    Jan. 7, 1982.
    Rehearing Denied March 15, 1982.

      William J. Sheppard and Stephen J. Weinbaum of the Law Offices of William J. Sheppard, Jacksonville, and Tobias Simon and Theodore L. Tripp, Jr. of the Law Offices of Tobias Simon, Miami, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause is before the Court on appeal from a judgment of conviction of first-degree murder and robbery with a firearm. Agreeing with the recommendation of the jury, the trial court sentenced the appellant Charles Mallory Vaught to death. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On February 10, 1977, in the City of Tallahassee, Garry Lee Charles and Edward LeFeavers were closing Mr. Charles’ gasoline station for the night when an armed assailant arrived and demanded money. The robber wore a mask fashioned from a green wool cap with two holes cut in it for the eyes. Mr. Charles recognized the assailant and tried to pull off the mask saying, “I know you, and know where you live.” After exposing the robber’s face, Mr. Charles was shot five times and killed.

Lenford Coleman, appellant’s next-door neighbor, testified that he and his roommate Freddie Scott owned three pistols which they had given to the appellant for safe keeping. One of the pistols was a .38 caliber Smith & Wesson revolver. On the night of the murder, the appellant went to Coleman, admitted the murder, and gave the gun back. Coleman then retrieved the other two guns from appellant’s apartment. He and Scott took all three pistols and hid them near their apartment building. They later turned them over to police. Bullets recovered from the victim’s body were conclusively determined to have been fired from the revolver returned to Coleman by the appellant.

The green wool cap fashioned into a mask was found in the vicinity of the crime scene, near where testimony showed the appellant parked his car before proceeding to the scene. Appellant’s roommate testified that the cap was his, he discovered it missing, and he found green wool scraps in his apartment which apparently resulted from the process of cutting out holes for the eyes. Hair samples taken from the cap were shown to possibly match a sample taken from the appellant.

Katrinka Goram testified that on the night of the murder the appellant came to her and asked her to return his car to his apartment. He also requested, if anyone asked where he was, that she say that he had been in Jacksonville all that week.

A prisoner in the Leon County jail, who met the appellant there following his arrest, testified to the appellant’s admission to the crime. He also stated that the appellant, offering money, sought his aid in securing an alibi witness and in seeking to have certain prosecution witnesses silenced.

We have reviewed the entire record and conclude that the evidence adduced at the trial amply supports the jury’s verdicts of guilty of first-degree murder and robbery with a firearm.

The appellant raises three issues in his appeal. He contends that the capital felony sentencing law cannot be applied because it purports to regulate practice and procedure in violation of the Florida Constitution and is therefore void. He contends that the trial court erred in instructing the jury on the aggravating and mitigating circumstances in that the standard instructions used do not adequately reflect the definitions of the statutory terms developed in the decisions of this Court. Finally, the appellant contends that the court erred in its consideration of aggravating and mitigating circumstances and that he should be resentenced.

In contending that the capital felony sentencing law regulates practice and procedure, appellant relies upon Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), and Lee v. State, 294 So.2d 305 (Fla.1974). The critical issue in those cases was the legality of applying Florida’s new death penalty law to persons who had committed a murder before the law had taken effect. In holding that the law could be applied to such persons, the United States Supreme Court and this Court referred to the changes in the law as procedural. Those references concerned the manner in which defendants who had committed murder before the new law took effect should be sentenced. They were not meant to be used as shibboleths for deciding whether the new law violates article V, section 2(a) of the Florida Constitution by regulating the practice and procedure in the Florida courts. By delineating the circumstances in which the death penalty may be imposed, the legislature has not invaded this Court’s prerogative of adopting rules of practice and procedure. We find that the provisions of section 921.141 are matters of substantive law insofar as they define those capital felonies which the legislature finds deserving of the death penalty. The appellant’s contention that the statute improperly attempts to regulate practice and procedure is without merit. Smith v. State, 407 So.2d 894 (Fla.1981); Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

We come now to consideration of the issues arising in connection with the court’s imposition upon appellant of a sentence of death. The jury recommended death. The trial judge made the following findings of fact:

1. The defendant, CHARLES MALLORY VAUGHT, JR., shot the victim, Garry Lee Charles, five times with a .38 caliber revolver while engaged in the commission of the robbery of Garry’s Bay Station on Lake Bradford Road, Tallahassee, Leon County, Florida, on February 10, 1977.
2. The victim resisted the defendant, CHARLES MALLORY VAUGHT, JR., during the perpetration of the robbery, pulled off the defendant’s mask, and stated to the defendant, “I know you and I know where you live.”
The defendant, after struggling with the victim, shot the victim one time. The victim fell to the ground. The defendant then stepped over the downed and helpless victim and shot him four more times.
3. The defendant, after shooting the victim, stalked the other service station attendant, Edward Wayne Lefeavers, who had taken refuge in a nearby parked truck. The defendant gained entry to the truck and brought his gun to bear on the attendant, Edward Wayne Lefeavers. The defendant clicked the revolver at said attendant, but failed to shoot the attendant only because his five-shot revolver was empty.
4. The defendant confessed the shooting and killing of the victim to both Len-ford Coleman and to Eugene Lambert Cass, witnesses for the State.
5. The defendant, in connection with his confession to Lenford Coleman, showed no remorse for killing the victim. Approximately sixteen days after the murder, the defendant stated to Coleman in a manner of bragging that he had “shot the dude (Garry Lee Charles) every place but the bottoms of his feets.”
6. The pathologist testified that the victim died of five .38 caliber gunshot wounds with one penetrating the heart.
7. The analysis by the Federal Bureau of Investigation regarding a comparison of hairs found on the victim’s jacket and on a green mask which was used during the murder/robbery with a hair sample from the defendant’s head concluded that it was only a remote possibility that the hairs on the jacket and on the mask could have come from any other person than the defendant.
8. The analysis by the Florida Department of Criminal Law Enforcement regarding a comparison of the bullets retrieved from the victim’s body with the .38 caliber revolver which the defendant handed to Lenford Coleman approximately 90 minutes after the murder, concluded that the revolver which the defendant handed to Coleman fired the bullets removed from the victim’s body.
9. Regarding defendant’s alibi that he was in Jacksonville, Florida, during the entire week in which the murder was committed, four witnesses for the State placed the defendant in Tallahassee on the day before the murder and four witnesses for the State placed the defendant in Tallahassee on the day of the murder. Furthermore, it is the opinion of this Court that the defendant’s alibi witnesses were unworthy of belief in the face of all the State’s evidence.
Based upon the aforestated findings, the Court concludes as follows:
(a) That this capital felony was committed for pecuniary gain.
(b) That this capital felony was especially heinous, atrocious, and cruel.
(c) That this capital felony was committed for the purpose of avoiding or preventing a lawful arrest and/or prosecution and, a failure by this Court to impose the death penalty where the defendant has deliberately killed the victim to prevent the victim from testifying against the defendant may encourage violent criminals to dispose of witnesses without fear of the ultimate punishment of death.
(d) That this capital felony was committed while the defendant was engaged in the commission of robbery.
(e) The only mitigating circumstances were the defendant’s lack of prior criminal activity and the age of the defendant at the time of the crime, and it is a
FURTHER FINDING AND CONCLUSION OF THE COURT that there is sufficient aggravating circumstances to warrant the imposition of the death penalty, and there are insufficient mitigating circumstances to outweigh the aggravating circumstances.
The Court therefore, fully cognizant of its responsibility to the State of Florida and to the Defendant makes these findings and this judgment fairly and impartially and only after great reflection upon the facts presented and the consequence of this finding.

Appellant contends that the trial court failed to provide the jury with complete instructions on aggravating and mitigating circumstances in that the instructions did not reflect the refinements provided by the decisions of this Court. Since appellant made no objection to the instructions below, this point may not be raised on appeal. Fla.R.Crim.P. 3.390(d); McCaskill v. State, 344 So.2d 1276 (Fla.1977). Moreover, the argument is without merit. The trial court gave the standard jury instruction on aggravating and mitigating circumstances.

Appellant contends that the trial court erred in finding both that the murder was committed in the course of a robbery and that it was committed for pecuniary gain, since both findings are based on the same feature of the criminal episode. We agree, of course, that such doubling up of aggravating circumstances both having reference to the “same aspect” of the crime is error. Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). Appellant’s contention that this error requires that the death sentence be vacated, however, does not necessarily follow. The error can be harmless if it does not interfere with the weighing process in which the judge is required to engage. Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Appellant contends that the trial court erred in finding that the killing was especially heinous, atrocious, and cruel. He argues that since the shooting was spontaneous and caused nearly instantaneous death, it cannot come within the meaning of this aggravating circumstance, which, under the interpretations given by this Court, focuses on the infliction of physical pain or mental anguish. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); White v. State, 403 So.2d 331 (Fla.1981). In response the state correctly points out that the factor heinous, atrocious, or cruel has also been approved based on the fact that a killing was inflicted in a “cold and calculating” or “execution-style” fashion. See, e.g., Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981); Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

The finding that the capital felony was committed for the purpose of avoiding or preventing arrest and prosecution is supported by the evidence that the shooting was precipitated by the victim’s announcement that he knew who his masked assailant was. The evidence showed that after the victim was shot once and fell to the ground, appellant shot him four more times to make sure he was dead and therefore unavailable to identify appellant.

Appellant contends that the trial judge erred in stating, along with his finding that the capital felony was committed to avoid or prevent arrest and prosecution, that “a failure by this Court to impose the death penalty where the defendant has deliberately killed the victim to prevent the victim from testifying against the defendant may encourage violent criminals to dispose of witnesses without fear of the ultimate punishment of death.” Appellant argues that this statement is an improper recitation of a non-statutory aggravating circumstance. This contention is without merit. The quoted language was not a finding of an additional and improper aggravating circumstance.

The trial judge found that there were two mitigating circumstances: the age of the appellant at the time of the crime and the fact that he had no history of significant criminal activity. Though the trial court improperly gave double consideration to the robbery motive of the killing, citing both commission in the course of a robbery and commission for pecuniary gain, the remaining aggravating circumstances outweigh the mitigating circumstances. Hargrave v. State; Meeks v. State, 339 So.2d 186 (Fla.1976). In both Hargrave and Meeks the defendants shot a store clerk several times to eliminate the victim as a witness to a robbery. In both cases this Court upheld the imposition of the death sentence despite each defendant’s youthful age and lack of any prior, significant criminal activity. Thus the trial judge’s error in doubling up the two aggravating circumstances was harmless since it did not affect the weighing process. Therefore the sentence of death was properly imposed.

We affirm the convictions of first-degree murder and robbery with a firearm and the sentence of death.

It is so ordered.

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


author: BOYD, Justice. ALDERMAN, Justice,

text:
    STATE of Florida, Petitioner, v. Constantino CASAL and Omar Garcia, Respondents.
    No. 58192.
    Supreme Court of Florida.
    Jan. 14, 1982.
    Rehearing Denied March 15, 1982.

      Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., Miami, for petitioner.
    Arthur F. McCormick, South Miami, for respondents.
   BOYD, Justice.

This cause is before the Court on petition for certiorari to review the decision in Casal v. State, 375 So.2d 1077 (Fla. 3d DCA 1979). We have jurisdiction by virtue of conflict with Hill v. State, 238 So.2d 608 (Fla.1970) and Miranda v. State, 354 So.2d 411 (Fla. 3d DCA), cert. denied, 364 So.2d 888 (Fla.1978). Art. V, § 3(b)(3), Fla.Const. (1972).

While patrolling the Atlantic side of the Florida Keys at night, Officers Walker and Soli of the Florida Marine Patrol saw a fishing vessel then being operated by the respondents. Although the Marine Patrol had received several complaints from local fishermen that their traps were being raided, the officers initially had no suspicion that the operators of the vessel were engaged in illegal activity. Nevertheless, they pulled alongside the vessel and asked the captain to cut his engines. They then asked to see the boat’s registration certificate which is legally required to be on board. See § 371.051(5), Fla.Stat. (1977). The captain Omar Garcia produced a tax receipt and some other documents but could not locate the registration certificate. Because the boats were banging alongside each other, Officer Soli asked permission to board the vessel. The respondents assisted her on board.

Upon boarding Officer Soli accompanied the respondents to the cabin to help look for the registration certificate. She testified that the respondents seemed agitated and apprehensive insofar as they were looking at each other a lot. She then asked to look in their icebox. After being told that would be fine she opened the icebox and saw some rotten food but no ice. This seemed strange to her since the captain had earlier said that they were on their way to Cay Sal to go fishing. She reported this finding to Officer Walker who had maneuvered the Marine Patrol vessel a few feet away to keep it from bumping into respondents’ vessel. Officer Soli then asked to look in the forward hatch. Captain Garcia asked if she had a search warrant. Overhearing this exchange Officer Walker told Garcia that they did not need a search warrant since they were not conducting a search and that he was under arrest for not having a boat registration certificate on board. Garcia then said there was no need to go further and that the boat was loaded with grass. Officer Walker called respondents over to the side of the boat and after advising them of their Miranda rights asked them to confirm what was just said by opening the front hatch for Officer Soli’s inspection. When they did so she discovered several bales of marijuana.

Respondents were taken into custody and charged with violating sections 893.03(1)(c) and 893.13(1)(a), Florida Statutes (1977). Before trial they moved to suppress the evidence on the basis that the search was illegal since the officers had neither probable cause to stop the vessel nor, having stopped the vessel, probable cause to search it. The trial court denied the motion, and after trial respondents were convicted. On appeal the district court reversed on the basis of the United States Supreme Court decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), which had been handed down in the interim. In that case, after balancing the state’s interest in promoting public safety on its roads against the citizens’ interest to be free from government intrusion, the Supreme Court held that a police officer’s completely random stop of an automobile to check the driver’s license and car registration was an unconstitutional seizure under the Fourth Amendment. The district court reasoned that the Marine Patrol’s stopping respondents’ vessel was likewise unconstitutional since there was “no basis for distinguishing between automobiles and boats in applying the Fourth Amendment’s proscription of unreasonable searches and seizures.” 375 So.2d at 1078. Since we find there is a distinction substantial enough to tip the balance in favor of the state’s legitimate interest, we disapprove that portion of the district court’s opinion. Since we conclude that there was no probable cause to search the boat, however, we approve the district court’s decision that the evidence should have been suppressed.

First we shall consider what are the state’s interests. One main interest is promoting maritime safety. All motorboats must contain certain safety equipment and lighting devices. § 371.57, Fla.Stat. (1977). In Prouse, the Supreme Court stated that the state of Delaware had several alternative methods of promoting public highway safety, including annual automobile inspections and frequent enforcement of traffic violations. These methods are not available to the Florida Marine Patrol. The main concern here that motorboats be safely equipped cannot be furthered by requiring periodic safety inspections. Unlike automobiles, the items of safety equipment required to be on boats, such as life jackets and fire extinguishers, are easily detachable. A periodic inspection could not insure that such equipment would be on board when the boat was being operated. Nor are such safety violations observable and therefore subject to as frequent enforcement as automobile violations.

The state also has a legitimate interest in regulating fishing within the state’s waters. Hill v. State, 238 So.2d 608 (Fla.1970). In Hill this Court held that requiring an applicant for a shrimping permit to give blanket permission to conservation officers to board his vessel at any time with or without cause did not violate the applicant’s right to be free from unreasonable search or seizure under the state and federal constitutions. A distinction was made between boarding and searching or seizing. This Court found that permission to board was for the limited purpose of ascertaining whether the permit was being carried on board and that any further search or inspection could only be conducted if there were probable cause that a law was being violated. See also Tingley v. Brown, 380 So.2d 1289 (Fla.1980). The decision suggests that boarding a vessel for the limited purpose of checking for a permit does not constitute a search or seizure.

Chapter 370, Florida Statutes (1977), regulates the taking of saltwater fish and the sizes and quantities of fish that may be taken. Its purpose is to conserve Florida’s marine life which is valuable to the economy, Hill v. State, and to protect certain species from extinction. See §§ 370.114 and 370.12, Fla.Stat. (1977). Requiring boats which may be carrying such marine life to stop for inspection of valid permits is akin to requiring trucks capable of carrying agricultural products to stop at agricultural inspection stations. See Gluesenkamp v. State, 391 So.2d 192 (Fla.1980); Stephenson v. Department of Agriculture and Consumer Services, 342 So.2d 60 (Fla.1976).

Now we must consider the citizen’s interest in freedom from this type of governmental intrusion. A citizen’s expectation of privacy is diminished when participating in specific types of regulated activity. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) (operating firearms store); Colonnade Ca tering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) (operating liquor store). In Prouse the Supreme Court found that government regulation of auto-, mobiles did not reduce a person’s expectation of privacy.

Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day travelling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in travelling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.

440 U.S. at 662-63, 99 S.Ct. at 1400-1401.

The same does not hold true for motorboat travel. It is not a pervasive or necessary mode of transportation for most people. There is not as great a sense of security and privacy when travelling in a boat as when travelling in an automobile. Thus subjecting boats to random spot checks for fishing permits or registration certificates does not seriously circumscribe the Fourth Amendment.

Finally, the Supreme Court in Prouse explicitly stated that its holding did not preclude the state of Delaware from developing a system of spot checks. The Court went so far as to suggest the possibility of setting up roadblocks where all traffic is stopped. 440 U.S. at 663, 99 S.Ct. at 1401. Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (checkpoint stops and questioning may be made in absence of any individualized suspicion).

We note that this less intrusive alternative is not available to the marine patrol. Boat travel is not limited by fixed roadways. Unlike an automobile, a boat at sea can travel in any direction. Even in harbors where there are channels which boats must follow, it would be impossible to establish a checkpoint on the water since boats cannot come to a complete stop and line up behind each other on the water as cars can on roads.

In sum we find that the state’s interest in random stopping and brief detention of motorboats for the limited purpose of checking fishing permits, registration certificates and safety equipment outweighs a person’s interest in being completely free from such limited intrusion. In light of the absence of less restrictive alternatives which would accomplish the state’s goals, spot checks of motorboats are not unreasonable under the Fourth Amendment. The district court erred in holding that State marine officers must have probable cause to stop a vessel for the limited purposes discussed above.

We next consider an issue the district court did not need to reach. That is the question whether the marine patrol officers, having lawfully stopped respondents’ vessel, had probable cause to search it. As we have held earlier, after the initial stopping and boarding a vessel the marine patrol must have probable cause before conducting any further search or inspection. Tingley v. Brown; Hill v. State. With respect to safety inspections, the legislature has decided that not even the initial boarding may be conducted without consent or probable cause. § 371.58, Fla.Stat. (1977). In this case consent was freely given to board the vessel and to look in the icebox.

However, respondents did not consent to any further search, as was clearly indicated when they asked Officer Soli if she had a search warrant. Villari v. State, 372 So.2d 522 (Fla. 1st DCA 1979). Respondents’ subsequently opening the forward hatch for Officer Soli did not constitute consent since they were told that a search warrant was not needed. See Taylor v. State, 355 So.2d 180 (Fla. 3d DCA), cert denied, 361 So.2d 835 (Fla.1978).

Without consent, the officers were precluded from further searching the vessel unless they had probable cause to believe that a crime was being or was about to be committed. Tingley v. Brown. Probable cause cannot be based on mere suspicion. Bailey v. State, 319 So.2d 22 (Fla.1975). There must be facts showing a probability of criminal activity. State v. Smith, 233 So.2d 396 (Fla.1970). In this case the facts were insufficient to show that respondents were probably committing or about to commit a crime. That respondents could not produce a registration certificate and that, although they said they were going to the Bahamas, their icebox did not contain ice may have been suspicious circumstances but did not constitute probable cause. That respondents inquired about a search warrant is irrelevant in determining whether the officers had probable cause. Since the officers lacked probable cause, their search of the vessel was unreasonable and the evidence they obtained should have been suppressed.

We disapprove the district court’s decision insofar as it held that the initial stop was unreasonable and required probable cause. However, since we hold that the subsequent search was unreasonable because it was not based on probable cause, we approve the district court’s reversal of the conviction. In accordance with the mandate of the district court of appeal, this cause is remanded to the circuit court with directions to discharge the defendants.

It is so ordered.

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

ALDERMAN, J., concurs in part and dissents in part with an opinion, in which McDONALD, J., concurs.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I agree with the majority’s holding that the stopping of the motorboat was not unreasonable under the fourth amendment. The State’s interest in the brief stopping for the purpose of checking permits, registration certificates, and safety equipment outweighs defendants’ interest in being free from this limited intrusion. The district court was therefore in error in holding that the state marine officers must have probable cause to stop a vessel for these limited purposes.

Unlike the majority, however, I would also hold that the search of the front hold of the boat was not unreasonable under the fourth amendment. Two distinct and well-established exceptions to the warrant requirement, the “CarrolF’ exception and the seareh-incident-to-arrest exception, apply here.

In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 880 (1925), the Supreme Court recognized that the warrant-less search of a motorboat or ship based upon probable cause may be a reasonable search under the fourth amendment because of the exigent circumstances arising from the movability of the vessel. In that case, the Supreme Court distinguished between search of a fixed structure in respect of which a warrant may be obtained and search of a ship, motorboat, wagon, or automobile for contraband “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. 280, 69 L.Ed. 880. Furthermore, the fact that the officers may be able to secure a vessel does not derogate their authority to search it under the Carroll exception. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

In the present case, I believe that probable cause and exigency exist and that the Carroll exception is applicable. Captain Garcia, shortly after having been arrested for failure to have a registration certificate on board, without any prompting by anyone or without any questions being asked, told the officers that the boat was loaded with marijuana. At that time the officers clearly had probable cause to believe that the defendants’ boat was carrying marijuana. The boat itself was fully mobile, and the question of whether it could have been secured is irrelevant. Chambers v. Maroney.

Completely independent of the Carroll exception, I believe the search of the hold was within the constitutionally permissible scope of the search-incident-to-arrest exception. In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court of the United States held that where there has been a lawful custodial arrest, the officers are justified in making a contemporaneous warrantless search of the arrested person in order to remove any weapons that the arrestee may seek to use in order to effect his escape or resist arrest and in order to seize any evidence on the arrestee’s person to prevent its concealment or destruction. The court also held proper a contemporaneous search of the area immediately surrounding the arrestee for the same purposes. These searches may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy the evidence since the potential dangers lurking in all custodial arrests make war-rantless searches of items within the “immediate control” area reasonable. The arresting officer is not required to calculate the probability that weapons or destructible evidence may be involved. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The fact of lawful arrest, alone, authorizes the warrantless search. Michigan v. DeFellippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

Acknowledging the difficulty courts have encountered in respect to the proper scope of what is meant by the area within the immediate control of an arrestee, particularly in automobile cases, the Supreme Court of the United States in New York v. Belton, 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838 (1981), held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, incident to the arrest, contemporaneously search the passenger compartment of that automobile. This includes, explained the court, a search of any containers found within the passenger compartment whether the container is opened or closed. In Bel-ton, the occupants of the car had been ordered to get out of the car and had been placed under arrest prior to the officer’s searching of the passenger compartment.

In the present case, there is no question that the search was conducted immediately upon arrest of the defendants, and the hold of the boat was easily accessible to the defendants. It is not inconceivable that the defendants may have had weapons hidden in the hold or that armed accomplices could have been hiding there, merely waiting an opportunity to surprise the officers and to thwart the arrest of defendants. Likewise, it is not inconceivable that defendants could have quickly reached the hold and attempted to destroy the evidence by throwing it overboard.

Accordingly, I would hold that the stop and search and seizure were constitutional, and therefore I would quash the decision of the district court.

McDONALD, J., concurs.

      . 371.58 Safety inspections; qualified. — No officer shall board any vessel to make a safety inspection if the owner or operator is not aboard. When the owner or operator is aboard an officer may board a vessel with consent or when he has probable cause or knowledge to believe that a violation of a provision of this part has occurred or is occurring.