author: HARRIS, Presiding Judge.

text:
    Reginald MEADE v. STATE.
    8 Div. 299.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    As Corrected on Denial of Rehearing Aug. 19, 1980.
    William J. Underwood, Tuscumbia, for appellant.

      Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said county charge that before the finding of this indictment Reginald Meade, whose name is otherwise unknown to the Grand Jury than as stated, did on, to-wit: February 2, 1979, illegally possess cocaine contrary to and in violation of the Alabama Controlled Substance Act and that said Reginald Meade has heretofore been convicted of an offense under the Alabama Controlled Substance Act on, to-wit: December 6, 1976, against the peace and dignity of the State of Alabama.”

Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him. At arraignment, in the presence of counsel, he waived the reading of the indictment, and pleaded not guilty.

The jury found him guilty and assessed a fifty thousand ($50,000.00) dollar fine against him and the trial judge sentenced him to twenty-two years in the penitentiary. He gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the court; but appellant filed a motion for a new trial in which he raised the sufficiency of the evidence. No evidence was presented at the hearing on the motion for a new trial and after argument of counsel the motion was overruled and denied.

The major contention made on this appeal on which error is predicated is the denial of the motion to suppress the evidence on the ground that appellant was illegally arrested. Appellant contends he filed three motions to suppress and the first motion was heard while he was in a V. A. hospital in Atlanta, Georgia. The motion was denied on May 21, 1979, by Circuit Judge Inge Johnson. Thereafter appellant through and by his attorney filed a “Motion for re-scheduling the motion for suppressing of Evidence,” and alleged:

“That the attorney for defendant has been unable to locate the defendant and that he has not ascertained information concerning the whereabouts of defendant.”

Judge Inge Johnson made an order on August 1, 1979, re-scheduling the hearing on the motion to suppress the evidence for August 7, 1979, at 1:00 p.m.

Appellant’s counsel participated in the hearing to suppress and did not move for a continuance because of the absence of his client. The record reflects that two continuances were had in this case before the case was set for trial on the merits. Honorable Robert M. Hill, Sr., Retired Circuit Judge from Florence, Alabama, was assigned to try the case. One continuance was granted at the request of appellant and the other continuance was made necessary by the conditions of the court docket. The case was reset for trial on September 24, 1979, before Judge Hill.

After the jury was selected, sworn and empaneled and two or more witnesses for the State had testified appellant’s counsel made another motion to suppress the evidence and Judge Hill responded:

“The Court notes for the record that the record of proceedings in this case indicate that the defendant first filed a Motion to Suppress the Evidence incident to an unlawful arrest on May 10, 1979, and after hearing the record indicates that the motion was overruled by Circuit Judge Inge Johnson. Subsequent thereto, the defendant filed a like Motion to Suppress the Evidence incident to an unlawful arrest and the same was set for a hearing on the 2nd day of August, 1979, was re-scheduled for August 7,1979, and said Inge Johnson entered a ruling thereon on August 7, 1979, as follows; which are a part of the record ... ‘It appearing to the Court that the defendant’s Motion to Suppress the Evidence filed June 6, 1979, raises issues identical with the Motion to Suppress filed by defendant on May 10, 1979, which motion was denied by this court by order dated May 21, 1979, it is therefore ordered that the defendant’s second Motion to Suppress be and hereby is denied. Signed by Inge Johnson, Circuit Judge.’ ”

Nevertheless, Judge Hill permitted the defendant to testify as to the facts and circumstances under which he was arrested. We will summarize his testimony following the summarization of the testimony of the State’s witnesses so that the evidence will be in proper sequence.

Deputy Sheriff Lanny Jackson of the Lauderdale County Sheriff’s Department, assigned to the North Alabama Drug Unit, testified that, on February 2, 1979, he and other officers went to appellant’s home at 227 Lewis Avenue in Muscle Shoals, Alabama, to serve an arrest warrant on appellant. He was accompanied by Investigator Jones of the Florence Police Department and Deputy Sheriff Ronnie May of Colbert County. They were both assigned to the North Alabama Drug Unit. When they arrived at appellant’s home at about 10:00 a.m. on February 2, 1979, Deputy Jackson went to the back door and Officers Jones and May went to the front door. After some five or six minutes Officer Jones went to the back door and told Officer Jackson that he saw a man in bed but he couldn’t get him to come to the door or the window. Jackson then removed a glass pane from the door and reached in and unlocked the door. He announced that he was with the Sheriff’s Department and had arrest warrants and was entering the house.

Jackson further testified that he entered the house followed by Officer Jones. They opened the front door to let Officer May into the house. Officer Jackson remained in the kitchen area where he could watch the bedrooms to prevent anyone from coming out. From this vantage point he could see appellant lying in bed. He said appellant Was hard to wake. While Officer Jones was trying to arouse appellant he and Officer May went through the house to make sure no other person was in the house. The bedroom up the hall from the room occupied by appellant was partly open and the officers could see a plastic bag full of green plant material which appeared to be marijuana and a set of scales on a piece of plywood on the floor in plain view. After making sure appellant was the only person in the house they stopped everything and called the District Attorney’s Office to secure a search warrant to search the entire house for other contraband.

Deputy Sheriff Ronnie May left the premises and appeared before the District Judge of Colbert County to secure a search warrant. The affidavit and search warrant are as follows:

“STATE OF ALABAMA COLBERT COUNTY
“Personally appeared before me, Jerry M. Vanderhoef, Judge of the District Court of Colbert County, Alabama, Ronnie May, who after first being duly sworn by me and who is known to me to be a Deputy Sheriff of Colbert County, Alabama, deposes and says as follows:
“The last term of Colbert County Grand Jury, Reginald Meade was indicted for two offenses, one being the sale of heroin; the second being the sale of cocaine. The said Reginald Meade had not been arrested on the writs following said indictments until this day. The affiant, along with two North Alabama Drug Unit officers, received information the said Reginald Meade was living at 227 Lewis Street, City of Muscle Shoals, Alabama. Upon arriving at said residence within the past two hours, and knocking upon the door there was no response, but the drape in the front window was pulled back and upon looking through the window, a person was observed lying on the bed. The back door was entered by removal of a window-pane. The person lying on the bed turned out to be the said Reginald Meade. In the other bedroom, in plain view was a trash bag filled with what appeared to be plant material and known to the affiant and agents of the North Alabama Drug Unit to be marijuana. Also in plain view in a closet in the hallway next to the bedroom, where the said Reginald Meade was arrested, there was recovered by the officers certain tablets which appeared to be valium, a controlled substance. After the said Reginald Meade was arrested, he made an attempt to dispose of certain objects which were upon his person. Upon search by the North Alabama Drug Unit, these substances appeared to the said agents and the affiant to be controlled substances, to-wit: heroin and/or cocaine. Upon the deputies arriving to transport the said Reginald Meade to the Colbert County Jail, he requested that a black bag be carried with him. The said bag was opened, checked for weapons, etc., and it was found to contain a great deal of currency which at this time has not been counted, but appears to be in the thousands of dollars. Further upon the deputies’ attempt to remove the said Reginald Meade to the car for transportation, he asked that he be allowed to wear a certain coat, to-wit: a green army fatigue jacket; that upon search of said jacket, it was found to have in its pockets, syringes and a small brown bottle containing a white substance, which is believed by the affiant to be a controlled substance.
“Based upon the above information recited herein above, the affiant has probable cause for believing and does believe that there is contained in the residence of the said Reginald Meade at 227 Lewis Street, Muscle Shoals, Colbert County, Alabama, other illegal drugs, to-wit: marijuana, cocaine, heroin, amphetamines, and barbi-tuates.
“Upon this information and belief, I request that the magistrate to whom this affidavit is directed to make a determination if there is sufficient probable cause to issue a search warrant for the person and premises herein above described.
“I make this affidavit for the purpose for securing a search warrant for the purpose of searching the premises of the said Reginald Meade, located at 227 Lewis Street, Muscle Shoals, Colbert County, Alabama.
/s/ Ronnie Mav
Affiant
“Subscribed to and sworn to before me this the 2 day of February, 1979.
/s/ Jerry M. Vanderhoef
Judge of the District Court”
“STATE OF ALABAMA COLBERT COUNTY
“TO ANY SHERIFF, CONSTABLE OR LAWFUL OFFICER OF THE STATE OF ALABAMA:
“Ronnie May, Deputy Sheriff of Colbert County, Alabama, having appeared before me, made the attached affidavit deposes and says that he has probable cause for believing and does believe that Reginald Meade has in his possession at this time in the premises located at 227 Lewis Street, Muscle Shoals, Colbert County, Alabama, illegal drugs, to-wit: marijuana, cocaine, amphetamines, and barbitu-ates, and it appearing further that said probable cause is based upon information seen by the affiant and from said information this magistrate has determined there is probable cause to believe a search warrant should issue and therefore you are ordered forthwith to make an immediate search of the premises of the said Reginald Meade, located at 227 Lewis Street, Muscle Shoals, Colbert County, Alabama, during the daylight hours of between 8:00 a.m. and 6:00 p.m. for said illegal drugs, to-wit: marijuana, cocaine, amphetamines, and barbituates, and if you find any part thereof, bring the same to me at my office in Tuscumbia, Alabama.
“Done this the 2 day of February, 1979.
/s/ Jerry M. Vanderhoef
Judge of the District Court”

Deputy Sheriff Jackson further testified that after the search warrant was issued the officers searched throughout appellant’s house. He stated there was a syringe on the bed occupied by appellant and appellant had some white powder wrapped in tin foil and regular wrapping paper which he tried to get out of his pocket. Appellant tried to evade Officer Jones and go to the bathroom and Officer Jones had to forcibly take it away from him. The officers also found 79 ten-milligram Valium pills in the linen closet, a large plastic bag of green plant material, and other items including a set of scales and an ash tray. Photographs were taken of the entire house and the various items found. These photographs were identified by Deputy Jackson and introduced into evidence over objections that they were not germane to the charge of possessing cocaine as charged in the indictment. The objections were overruled.

On cross-examination Deputy Jackson stated that as he entered the door he told appellant they were police officers and had warrants for his arrest. He further testified they ascertained the utilities and telephone service to the house were in the appellant’s name. A telephone bill in the name of appellant addressed to him was introduced into evidence as State’s Exhibit 7.

All items seized pursuant to the search warrant were placed in sealed envelopes, initialed and delivered to John Kilbourn, Director of the State Laboratory, in Florence, Alabama.

Police Officer Randy Jones of the Florence Police Department testified that he went to appellant’s house at 227 Lewis Avenue in Muscle Shoals, Alabama, on February 2, 1979. He stated he had received a telephone call from a confidential informant approximately an hour or an hour and a half prior to going to the address. His purpose in going was to execute two grand jury capias warrants on appellant and place him under arrest. At the time he was assigned to the North Alabama Drug Unit he ascertained the utilities to this address were in the name of the appellant. He said, “I got in touch with Officer Jackson and Deputy Ronnie May and we went over to Mr. Meade’s residence around 10:00 a.m. that morning.”

He further testified that, “Deputy Jackson went to the back or rear of the house and Ronnie May and myself went to the front door and knocked on the door several different times, both of us. And we shouted we were police officers, identified ourselves as police officers for approximately four minutes. As a matter of fact, we made so much noise that one of the neighbors came over to see what was going on. The front door, the storm screen door was locked and I walked to the left of the front door and looked in the window, the curtains were pulled back and I saw the defendant, Reginald Meade, lying on the bed in the front bedroom.” He stated he knew who he was at the time. Being unable to get a response from knocking and shouting he went to the rear and told Deputy May and Deputy Jackson that appellant was in the house, lying on the bed, and he appeared to be passed out or asleep. Deputy Jackson took a rear pane out of the back door and reached inside and unlocked the door.

He and Deputy Jackson went into the house and directly to the bedroom where appellant was in the bed. He stated he woke appellant after some thirty seconds of vigorously pulling and pushing him and calling his name; that Deputy May presented appellant, with two grand jury indictments; and Officer Jones placed him under arrest and gave him the Miranda rights and warnings. At this time Officer Jones had seen the plant material. The officers called the District Attorney and secured the scene.

From the record:

“We were standing by for you (District Attorney) to arrive on the scene and right before you got there, I believe Mr. Meade made a statement that he wanted to go to the restroom. And I said he would just have to wait until we got the scene secured. He stood there for a minute ... he was laying or sitting on the bed and he jumped up and tried to run out of the room and I grabbed him and threw him back on the bed. As I did, a plastic packet fell out of his pocket onto the bed and I recovered that.”

Officer Jones further stated that he gathered all the other evidence including about thirteen pounds of plant material; a plastic bag of white gray powder which was identified by the State Toxicologist as 7.2822 grams of cocaine, seventy-nine blue tablets; a piece of folded aluminum foil containing plant material and two hand rolled cigarettes; three four inch long sticks wrapped with plant material; one syringe filled with liquid; scales; an assortment of drug paraphernalia; and a small glass vial containing a trace of some powder. Officer May also found a leather purse containing $5,667.00 in cash but the court sustained appellant’s objection to the introduction of the money. By order of the court this money was returned to appellant.

Officer Jones concluded his testimony by saying in his opinion appellant was incoherent and was under the influence of drugs at the time he was arrested. He testified there was a plastic syringe lying next to appellant and there were tracks of blood coming out of his left arm.

The Clerk of the Circuit Court of Colbert County, Ms. Sarah Blackwell, produced a certified copy of a judgment entry, case no. 11751, styled State of Alabama v. Reginald T. Meade, in which Meade was charged and convicted of violating the Alabama Uniform Controlled Substances Act. The conviction was based on a guilty plea and he was sentenced to a term of two years in the penitentiary. The certified copy of the judgment entry was introduced into evidence over a general objection. Ms. Blackwell stated that Meade was the identical person then on trial as she had previously seen him in court on other occasions. This certified judgment of conviction justified the fine assessed by the jury and the sentence imposed by the court.

Mr. John Kilbourn, Director of the Department of Forensic Sciences Laboratory in Florence, Alabama, testified as to his education and experience. His qualifications as an expert were not questioned. He received a B. S. degree in Pharmacy and Pharmacology from Auburn University and did graduate work in the field of pharmacology and toxicology while in Auburn. He also attended the University of Alabama and did graduate work at the University of North Alabama and was an instructor at that university. He attended numerous schools and seminars throughout the United States “dealing in the forensic sciences, dealing with drug identification, microana-lysis utilizing the microscope and also death investigation.” During his ten year employment with the State he had performed several thousand drug identifications.

He further testified that, on February 6, 1979, he received several items from Officer Jones pertaining to the Meade case for identification but because of an abundant caseload at the Florence Laboratory some of the items were sent by U. S. mail to the main laboratory at Auburn, Alabama, for analysis and identification. Kilbourn retained the plastic bags containing plant material, three or four long sticks wrapped in plant material, and two hand rolled cigarette butts, which he analyzed and determined to contain marijuana. These items were sealed in manila envelopes with the officer’s initials across the seal and bearing the name of appellant.

The items sent by mail to Mr. Taylor Noggle at the Auburn, Alabama, laboratory were two plastic bags which contained a white powder. This was in an envelope sealed with evidence tape, dated 2-2-79, with the initials “RSJ” across the seal, bearing the name Reginald Meade. The envelope contained a plastic bag sealed with evidence tape which contained a syringe with liquid.

Mr. Taylor Noggle, who was employed with the Alabama Department of Forensic Sciences at the main laboratory in Auburn, Alabama, for approximately eight years, testified he received a Bachelor of Science Degree in Chemistry from Georgia Southern College in Statesboro, Georgia, and a Master’s Degree from Auburn University in Montgomery. At the time he testified in this case he was enrolled in the graduate school in Toxicology, Pharmacology and Pharmacy at Auburn University pursuing a Master’s Degree. He had two years training with the United States Army Criminal Investigation laboratory at Fort Gordon, Georgia, where he spent six months on the job training program approved by the Provost Marshal General. He served two years with the United States Army Criminal Investigation Laboratory where he specialized in the examination and identification of dangerous drugs and narcotics. After completion of his tour of service in the Army he went to work for the Alabama Department of Forensic Sciences at Auburn and has been continuously employed since that time. He further stated that during his Army career and employment with the State of Alabama he has made several thousand drug identifications.

He said he received certain items through the United States Mail from Mr. John Kilb-ourn who placed his return address on the envelopes. In his own words:

“I received several sealed manila envelopes which contained assorted items. One of the sealed manila envelopes which I received contained a matchbox which held one blue circular tablet with Roche 10 Valium printed on one side. Another sealed manila envelope contained a clear plastic bag which held 78 blue circular tablets, each of which had Roche 10 Vali-um printed on one side and a single score on the other. I received another sealed manila envelope which contained a clear plastic bag holding a plastic syringe which contained seven-tenths milliliter of a liquid. I also received a sealed manila envelope which contained a clear plastic bag, which held a piece of wrapping paper and within this wrapping paper was a white powder.”

Mr. Noggle further testified that he conducted an analysis on the 79 tablets and found they contained diazepan which is a controlled substance. He conducted a laboratory analysis on the liquid found in the syringe and found it contained cocaine which, too, is a controlled substance. He put the white powder in a bottle because it was leaking out of the plastic bag and was scattered about in the piece of aluminum foil and the gray wrapping paper. He weighed the powder before putting it in the bottle and it weighed 7.2822 grams. The laboratory analysis of the powder revealed the presence of cocaine.

Mr. Noggle further testified that cocaine injected along with other drugs would be capable of rendering a person unconscious and that a sufficient dose of cocaine alone would have the same effect. He stated that cocaine is a stimulant drug which stimulates the central nervous system and gives a feeling of being awake or alert, but a sufficiently high dose causes the central nervous system to become over-stimulated and unconsciousness can be the result.

Appellant called Officer Randy Jones who testified that the two arrest warrants were approximately two months old. He was asked if appellant was trying to dodge him and he replied, “Let’s just say I couldn’t locate him.”

Appellant testified in his behalf. On direct examination he testified that he was convicted of an offense in September, 1974. He was convicted of another offense in May and was fined $2,500.00 and sentenced to eleven years in the penitentiary.

He stated that, on February 2, 1979, he heard someone come to his back door but he did not hear anyone say anything. He said the next thing he realized one of the officers came into his room and said, “You are under arrest” and put handcuffs on him; that the other two officers started moving around the house opening doors. He denied hearing anyone say “we are police officers and are here to arrest you.” He said when he heard the noise coming in the door the person came to him and asked him if he was Reginald Meade and asked him if he had any identification. He showed him his I.D. He denied being under the influence of drugs.

He admitted that some time around 10:00 or 10:15 on the morning he was arrested someone knocked on his door and a short time later an individual came to his window, but he did not go to the door. He stated if he had known they were police officers he would have opened the door.

On cross-examination he was asked the names of the officers who came in his house and he said he did not know them at that time but later learned they were Officers Jackson, Jones, May and Harmon. He then recanted his testimony and said he was not sure about Officer Harmon. He denied that others came there later and did not recall seeing the District Attorney in his house on the day he. was arrested. Appellant admitted being convicted in Colbert County in December of 1976 for possession of marijuana and receiving a two-year sentence in the penitentiary. He admitted being under a suspended sentence at that time and his probation was revoked. He admitted that later he was convicted for selling cocaine and another case was pending involving another sale. He denied the marijuana found in the house on February 2, 1979, belonged to him and stated he did not know how it got into his house. He denied shooting drugs on the day he was arrested. He heard one of the officers testify that blood was running from his arm but he denied that this was true. He admitted he slept in the house at 227 Lewis Avenue the night before his arrest and no one else was staying there. He stated the utilities were in his name as was the telephone. He did not see the syringe on the bed where he slept and did not know how it got there. In short appellant denied the testimony of the officers that cocaine and other narcotics were found in his house by the arresting officers. He did admit that a set of scales was given to him as paraphernalia but he had never used it to measure any type of narcotics.

Appellant contends the trial court erred to a reversal in failing to suppress the evidence incident to an unlawful arrest and the State’s failure to have a search warrant when the officers initially entered appellant’s home. What appellant overlooks is that the arresting officers entered his home with a valid arrest warrant and after seeing marijuana in plain view they immediately secured appellant and the premises and went before a magistrate and obtained a search warrant. The action of the officers in this case fully complies with the decision of the Supreme Court of the United States in the cases of Payton and Riddick v. New York, — U.S. —, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

To hold otherwise would mean closing our eyes to the obvious meaning of the Supreme Court in the Payton and Riddick opinion, supra, and the facts in this case. The officers, armed with a valid arrest warrant, knocked on appellant’s front door for at least four minutes and shouted they were police officers and were there to arrest appellant. They shouted so loud and knocked so fiercely that a neighbor came to appellant’s house to see what was going on. They were unable to arouse appellant from his drug induced stupor to get him to come to the door in answer to their knock and shouting. Being unsuccessful in getting appellant to respond to their knocks and shouts they simply removed a pane from the back door, reached in and unlocked the door and entered the house. They went directly to the bedroom occupied by appellant and they still had to shake him vigorously for thirty seconds to wake him. Once aroused appellant became aware that he had cocaine on his person and he felt it imperative to rush toward the bathroom to destroy the evidence. An alert officer had to restrain him and the packet of cocaine fell from the person of appellant and was seized by the arresting officer. The officers then called the District Attorney and went before a magistrate to obtain a search warrant. Armed with a search warrant they seized the other contraband located throughout the house.

We hold the trial judge was pre-eminently correct in admitting into evidence all the contraband and paraphernalia confiscated during the search. Brantley v. State, 294 Ala. 344, 317 So.2d 345.

Section 15-10-2, Code 1975, provides:

“An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant. If an officer executing an arrest warrant is refused admittance after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house in order to make the arrest.”

As we have pointed out the arrest warrants had been outstanding for approximately two months before appellant was found and arrested. The law is well settled that there is no constitutional right to be arrested at an early date or at any particular time. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Chambliss v. State, Ala.Cr.App., 373 So.2d 1185, writ denied, Ala., 373 So.2d 1211.

Notwithstanding the conflicts in the testimony we are not convinced from a careful view of the totality of the circumstances surrounding appellant’s arrest that he had not been advised of official authority to make the arrest and of the cause of the arrest. Seals v. State, 282 Ala. 586, 213 So.2d 645.

There was no error in allowing Mr. Taylor Noggle to testify as an expert on the effects on the human body from the use of cocaine. Whether a witness is shown to possess the requisite qualifications to be called as an expert is a preliminary question largely within the discretion of the trial courts. The criterion for admission of expert testimony is that the witness, by study, practice, experience or observation as to the particular subject, has acquired a knowledge beyond that of an ordinary witness. Jones v. State, Ala.Cr.App., 339 So.2d 1042; Woods v. State, 54 Ala.App. 591, 310 So.2d 891; Charles v. State, Ala.Cr.App., 350 So.2d 730.

Conflicting testimony is always a question for the jury to determine. Mullins v. State, Ala.Cr.App., 323 So.2d 109; Lee v. State, Ala.Cr.App., 346 So.2d 31.

The evidence presented was more than sufficient to sustain the verdict of the jury and there was no error in overruling the motion for a new trial. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have carefully searched the record and have found no errors affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Reginald MEADE. (Re: Reginald Meade v. State of Alabama).
    79-909.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   SHORES, Justice.

WRIT DENIED-NO OPINION.

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


author: BOWEN, Judge.

text:
    Watson Huey BROWN v. STATE.
    6 Div. 229.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen. and Charles M. Allen, II, Montgomery, for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the robbery of Joseph William Dens-more. Sentence was ten years’ imprisonment.

The only issue presented is the sufficiency of the evidence.

In Thomas v. State, 363 So.2d 1021 (Ala.Cr.App. 1978), this Court held:

“The mere fact that a defendant is sitting in the driver’s seat of an automobile into which a robber enters immediately following the robbery affords no legal inference that the defendant is the ‘get-away’ driver or a participant in the robbery. While such circumstances do raise a suspicion that the defendant might be involved in the crime, they alone afford no circumstantial evidence of involvement or participation but only tend to support the possibility.” Thomas, 363 So.2d at 1023. (emphasis supplied)

Thus the mere presence of a defendant in an automobile into which a robber flees is circumstantial evidence of the driver’s complicity but it is not sufficient to authorize a conviction in and of itself. However any fact which would supply an inference that the defendant had knowledge of the robbery or that would indicate a consciousness of guilt will be sufficient to remove the factual situation from beyond the application of Thomas. Smith v. State, 57 Ala. App. 151, 157, 326 So.2d 680 (1975), cert. denied, 295 Ala. 424, 326 So.2d 686 (1976).

The facts of the instant case are far more incriminating than those found in Thomas. Here the State’s evidence was not limited to the bare showing that the defendant was sitting in the driver’s seat of the automobile into which the robber fled.

Geraldine Mickles, who was living with Charles Martin, testified that Martin awoke about 7:00 on the morning of May 29,1979. He telephoned the defendant, whom he had known for about one year, and then “sat down and waited.” “[Ajbout 8:30 or a little after 8:00, something like that,” the defendant arrived at Martin’s apartment. The two men took two big boxes and placed them in the back seat of the defendant’s automobile. The defendant only stayed about a minute before he and Martin left together in the defendant’s car. The defendant had his two young children with him.

Joseph William Densmore owned and operated the 29th Street Grocery. He testified that at approximately a little after 8:00 on the morning of May 29th, he was robbed of approximately two hundred dollars by a single gunman, whom he subsequently identified as Charles Martin. During the robbery, Mrs. Densmore pushed a button which signaled the APC Alarm Company. As Martin was making his escape, Mr. Dens-more shot him with a shotgun. The defendant stumbled and dropped his pistol and most of the money. Although Martin had received injuries to his upper thigh, buttocks and back he managed to escape by running between two houses. Mr. Dens-more retrieved the money and the pistol and returned to his store where the police were already present. Police records show that a complaint on this robbery was received at 9:41 that morning.

Robert Perkins was Charles Martin’s brother. He testified that at approximately 10:10 that same morning the defendant came to his door and told him that “Charlie had been shot.” Perkins rushed out and saw his brother in the back seat of the defendant’s car. He noticed that Martin was bleeding from the mouth and did not observe any wounds. Perkins stated that he tried to get his brother’s pulse and revive his breathing, but Martin was already dead. Perkins then telephoned the police and the rescue squad. Police records show that a call that a man had been shot was received at 9:50 A.M. When Perkins returned to the defendant’s automobile he noticed “something that wasn’t there before.” Money, about sixty or seventy dollars in small bills according to Perkins, had been “spread just randomly across Charlie’s body and between he and the bottom of the seat.”

While waiting on the police, Perkins asked the defendant three times how Martin got injured. The first two times Perkins’ wife and two daughters were in the room and the defendant whispered to Perkins that he would tell him later. The third time Perkins asked, the defendant told him that Martin “tried to knock a store and the man shot him.” Twice, the defendant asked Perkins to take Martin out of his car but Perkins refused. Perkins did not see any big boxes in the back seat of the defendant’s automobile.

Other witnesses testified that when Martin was removed from the automobile a pair of sunglasses and eleven dollars were found under his body.

The first police officer arrived at Perkins’ apartment between 9:45 and 10:00 A.M. Martin’s body had not been moved but this officer only saw a “couple of bills .. . maybe two, three, maybe four bills” in and on the back seat of the defendant’s automobile.

In front of Perkins’ apartment, Detective Sergeant William T. Gaut questioned the defendant as part of his initial investigation. Kelley v. State, 366 So.2d 1145 (Ala.Cr.App. 1979); Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala. 1977). At that time Sergeant Gaut did not know that a robbery had occurred. The defendant told Sergeant Gaut that he did not know what had happened, that he was just riding down the street on the way to his mother’s house when Martin “flagged” him down and asked for a ride to his brother’s house. The defendant admitted knowing Martin but stated that “he didn’t know what was wrong with him or whether he had been shot or stabbed or anything else.”

The evidence in this case, unlike that in Thomas, furnishes far more than mere possibility, suspicion or guesswork of the defendant’s guilt. The reasonable and legal inferences from the evidence supply the basis for proof beyond a reasonable doubt.

The State placed the defendant with Martin both immediately before and after the robbery. The State offered evidence from which the jury could legally infer that the defendant placed money on top of Martin’s body and that he knew Martin had been in a robbery. The conflict in the opposing statements the defendant made to Sergeant Gaut and Perkins indicates a consciousness of guilt. As noted in Thomas these additional facts, although they are only circumstantial evidence of guilt, are sufficient to create a jury question on the issue of the defendant’s guilt or innocence. Therefore, the defendant’s motion to ex-elude the State’s evidence was properly denied.

We have carefully searched the record for error and found none. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Watson Huey BROWN. (Re: Watson Huey Brown v. State of Alabama).
    80-27.
    Supreme Court of Alabama.
    Dec. 2, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: McDONALD, Justice.

text:
    Brady Otis BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 57688.
    Supreme Court of Florida.
    Oct. 2, 1980.
    Rehearing Denied Dec. 22, 1980.
    Clinton H. Coulter, Jr. of Duvall & Coulter, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   McDONALD, Justice.

A jury in Calhoun County Court convicted Byrd of reckless driving under section 316.192(1), Florida Statutes (1977), which provides that “[a]ny person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” At trial, he charged that the statute is so vague and indefinite that it is unconstitutional. We disagree and affirm the validity of both the statute and Byrd’s conviction.

Byrd cites two Texas cases to support his contention: Ex parte Chernosky, 153 Tex.Cr.R. 52, 217 S.W.2d 673 (1949), and Ex parte De La Pena, 157 Tex.Cr.R. 560, 251 S.W.2d 890 (1952). These cases declared unconstitutional the words “without due caution or circumspection” then contained in the Texas reckless driving statute. The court, however, specifically refused to construe the willfulness and wantonness provisions of that statute. 153 Tex.Cr.R. at 55, 217 S.W.2d at 674. But the Texas court did later consider those provisions in a newer Texas statute prohibiting reckless driving and found that statute, which is identical to section 316.192(1), constitutional. Garcia v. State, 498 S.W.2d 936 (Tex.Cr.App.1972).

To be constitutional, a statute must convey “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947). We find section 316.192(1) sufficient to apprise motorists in Florida of what conduct the reckless driving statute prohibits. In so doing, we reach the same conclusion as the majority of other courts that have considered reckless driving statutes. See An-not., 12 A.L.R.2d 580 (1950).

The other points raised in this appeal , are without merit.

Affirmed.

It is so ordered.

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

      The trial court upheld the constitutionality of the statute, and we have jurisdiction pursuant to Art. V, § 3(b)(1), Fla.Const. (1972).


author: PER CURIAM.

text:
    In re FLORIDA WORKERS’ COMPENSATION RULES OF PROCEDURE.
    No. 57707.
    Supreme Court of Florida.
    Oct. 23, 1980.
    As Amended On Rehearing Granted in part; Denied in part Dec. 19, 1980.
   PER CURIAM.

The following amendments to the Florida Workers’ Compensation Rules of Procedure are hereby adopted, effective January 1, 1981. Comments to the rules prepared by the rules committee of the Workers’ Compensation Section of The Florida Bar, and here modified, are not adopted by the Court.

It is so ordered.

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

RULE 7. APPLICATION FOR HEARING

An application for hearing concerning a Claim, made pursuant to Chapter 440, Florida Statutes, shall state concisely in separate numbered paragraphs the reasons for requesting hearing, and the questions at issue or in dispute which the applicant expects the Deputy to hear and determine, with sufficient particularity that the responding or opposing parties may be notified of the purpose of the hearing, including the issues to be heard and determined and specific benefit due and not paid. Application for the first hearing or trial in a cause shall be filed with the Division at Tallahassee. Applications for any subsequent hearings in that cause shall be filed with the Deputy to whom the case has been assigned, with a copy to the Division. A copy of the application shall be served on counsel for each party and a copy upon any party not represented by counsel. Failure to serve a copy of the application as required shall be grounds for a continuance or cancellation of the hearing.

COMMENT

RULE 7.

This change would keep the Division, the agency which is involved in various stages of the management of workers’ compensation cases, apprised of the status of the case, and informed of the reason for the Deputy’s continued possession of the file.

RULE 8. NOTICE OF HEARING ON CLAIM: ORDER BY DEPUTY COMMISSIONER

(a) The Deputy shall hold a hearing within 90 days after application for the same, and shall give the claimant and other interested parties at least 15 days notice by certified mail. The notice shall state with particularity the questions at issue or in dispute which the Deputy will hear and determine.

(b) The ordor making an award or rejecting the claim-shall set forth the findings or ultimate facts and the mandate, and tho order need not include-any-other reason or justification for such-mandate. The order of the Deputy shall set forth findings of fact, conclusions of law and the Deputy’s determination of the claim or other ruling. The order shall be signed by the Deputy and shall include a certificate of mailing thereon.

COMMENT

RULE 8.

8. (a) Suggestions have been made to remove the requirement that notice to the parties of a hearing be sent by certified mail. The Rules Committee of the Workers’ Compensation Section is of the opinion that the requirement that the hearing notice be sent by certified mail should be retained for two reasons. In the first instance, the Statute, F.S. 440.25(3)(a) requires notice by certified mail, and, secondly, this provision is viewed as one which provides at least a minimum level of procedural due process.

8. (b) The portion of this rule which the Rules Committee of the Section recommends be removed was in conflict with the wording of Rule 14, which has been transplanted, in toto, to Rule 8(b).

RULE 11. PROSECUTION OF CLAIM BEFORE DEPUTY COMMISSIONER

(a) When a trial has been set by a Deputy Commissioner, all parties shall diligently prosecute and defend the claim. The Deputy Commissioner may cancel or continue a trial on his own motion or on the motion of a party if he finds that the cancellation or continuance is for good cause which has not resulted from a lack of diligence in the prosecution or defense of the claim.

(b) Any claim, or any petition to modify, in which it affirmatively appears that no action has been taken by request for hearing, filing of pleadings, order of Deputy Commissioner, payment of compensation, provision of medical care, or otherwise for a period of two years after -filing, is subject to dismissal for lack of prosecution. Upon motion to dismiss filed by any interested party, or upon request of the Deputy Commissioner before whom the action is pending, the file shall be forwarded to the appropriate Deputy Commissioner who shall, after reasonable notice to the parties and opportunity for hearing, dismiss the claim or petition, unless a party shows good cause why the claim or petition should remain pending.

COMMENT

RULE 11.

Deletion of the words “after filing” in Rule 11(b) allows the dismissal of a state claim after any two year period of inactivity. The change will make this rule consistent with Rule 1.420(e) of the Florida Rules of Civil Procedure.

RULE 14. ORDER OF THE DEPUTY. (Delete)

COMMENT

RULE 14.

The Rules Committee of the Section has suggested the incorporation of this rule into Rule 8(b) with the concurrent deletion of the conflicting language of Rule 8(b). This would do away with the need for two separate rules in regard to the findings required of an order of the Deputy Commissioner.

RULE 16. APPELLATE REVIEW:

(a) NOTICE OF APPEAL. Notice of appeal of an order of a Deputy shall be filed with any Deputy within 30 days of the date copies of the Deputy’s order were mailed to the parties. Notice of appeal shall contain a certificate of appellant (or cross-appellant) or counsel setting out the periods and classifications of benefits and medical treatment affected by the appeal. Appellant shall file the original and one copy of the notice, accompanied by a $50.00 filing fee, by check or money order, payable to the Clerk of the District Court. Jurisdiction of the District Court is invoked as of the date of filing of the notice of appeal with any Deputy.

(b) TRANSMITTAL OF NOTICE. Upon filing of a notice of appeal, the Deputy shall forthwith transmit the filing fee and a certified copy of the notice showing the date of filing to the Clerk, and if he is not the Deputy who entered the order on appeal, he shall forthwith forward to the Deputy whose order is on appeal, a copy of the notice and of the transmittal letter to the Clerk. A certified copy of the order appealed shall be attached to, and transmitted with the notice of appeal to the Clerk.

(c) FORM OF NOTICE. Notice of appeal shall be as follows:

In The Office of

The Deputy Commissioner

District_

Deputy Commissioner

(Name of Deputy)

(Address of Deputy)

Claim No.:

D/A :_

A.B., :

Appellant, :

vs. : Notice of

C.D., : Appeal

Appellee. :

Notice is hereby given that A.B., Appellant, appeals to the District Court of Appeal, First District of Florida, the order of the Deputy Commissioner, (name) . dated _, 19 , and mailed -, 19_The nature of the order on appeal is-

CERTIFICATE OF APPELLANT (OR CROSS-APPELLANT) OR COUNSEL:

I HEREBY CERTIFY that this appeal affects only the following periods and classifications of benefits and medical treatment:

Appellant or counsel for Appellant

(address)

(telephone)

(Certificate of Service)

(d) CROSS-APPEAL. Any appellee who desires to review an adverse ruling of the Deputy shall file his cross-appeal with any Deputy within 10 days of service of notice of appeal, or within 30 days of the mailing of the order to be reviewed, whichever is later. Notice of cross-appeal shall contain a certificate of cross-appellant or counsel setting out the periods and classifications of benefits and medical treatment affected by the appeal. The form shall be substantially as provided by (c) of this rule. No filing fee shall be required for a cross-appeal.

(e) ASSIGNMENTS OF ERROR. No change

(f) PROOF OF SERVICE. No change

COMMENT

RULE 16.

The Rules Committee of the Workers’ Compensation Section of the Bar is in agreement with conforming workers’ compensation appellate procedures with appellate procedures involving other litigation, whenever possible. In all instances in which a conformed procedure is possible no special rules should exist. However, in some regards workers’ compensation cases are unique, and this uniqueness generates special needs for workers’ compensation appeals not present in appeals involving other litigation. One of these is a need for the parties and the Courts to know precisely what is on appeal in a workers’ compensation case so that those issues not on appeal may be determined in separate proceedings, those pursuant to Rule 20 (relating to proceedings before the Deputy in regard to matters over which jurisdiction has not been divested by the filing of an appeal). The information concerning what is on appeal is necessary to avoid delay in the delivery of uncontested (on appeal) benefits to the claimant.

Workers’ compensation cases, of necessity, are taken up piecemeal. A workers’ compensation case requires this treatment because the various entitlements of the claimant (which generate potential issues to be heard by the Deputy Commissioner) mature at different times as the course of the claimant’s physical recovery progresses. A workers’ compensation case, unlike other personal injury litigation, can engender successive issues as to medical treatment, the entitlement to temporary disability benefits, the entitlement to permanent disability benefits, as well as ancillary issues of penalties, costs, attorney’s fees and some other rather exotic issues. These can result in successive hearings and successive orders which are all equally final, and all equally appealable. This is not only necessitated by the nature of a workers’ compensation case but also is required by the Statute and the existing rules which allow claims and trials of only the matured issues. (See in this regard F.S. 440.25 and existing Workers’ Compensation Rule of Procedure 7.) This of course is different from other sorts of personal injury litigation in which the matter is tried at one time, and all issues are presented. For other sorts of litigation, the notice of appeal currently found in Rule 16 is sufficient. The parties know what is being appealed, and, even if they don’t, it makes little difference since no additional trials are contemplated.

The special need of the parties and the Courts involved in a workers’ compensation case to know what is on appeal, and what jurisdiction the Deputy Commissioner retains, was formerly met by the Application for Review requirements for appeals to the Industrial Relations Commission. This requirement was done away with by the current Rule 16, after the Industrial Relations Commission was abolished by Statute.

The Rules Committee of the Workers’ Compensation Section does not recommend reinstituting the Application for Review procedure to delineate the issues on appeal. However, it is suggested that certain changes be made in the existing Rule 16 in recognition of the special need in workers’ compensation cases of an expeditious means of determination of just where it is that jurisdiction lies. As the rule now stands, between the date of the filing of the notice of appeal and the date of the filing of the record on appeal, the First District has nothing which would allow it to make such a determination. For this reason, it is suggested that a certified copy of the order appealed should be attached to and transmitted with the notice of appeal, and that the notice itself advise the Court of the date of accident in question. The Section further suggests a certificate of the appellant setting out which benefits will be affected by the issues on appeal, so that the Deputy can determine whether he has jurisdiction to proceed in regard to other benefits. The certificate does not require a pleading of the issues on appeal, but rather only requires a certification of which benefits will be affected. It is felt that such an amendment to the rule will do much to avoid confusion and delay in determining the threshold question of the Deputy’s jurisdiction.

RULE 18. RECORD ON APPEAL

(a) WHAT CONSTITUTES.

(1) The record on appeal shall contain the claim, notice to controvert, pre-trial order and stipulation, transcript of proceedings before the Deputy, as taken by a certified court reporter at the expense of the Division, and order on appeal. The record shall also contain, by designation of a party, such other orders and pleadings as are necessary for the Court’s determination of the appeal. Only such exhibits, depositions and physical evidence as are introduced into evidence before the Deputy, designated by the parties for inclusion, and necessary for the Court’s determination of the appeal shall be included. If the order appealed requires consideration by the Court of matters which have not been admitted as evidence, such material as is necessary to the Court’s determination shall be included by designation. Evidence proffered, but not admitted into evidence by the Deputy, shall not be included in the record unless its admissibility is an issue on appeal and it is designated for inclusion by one of the parties. No paper, document, exhibit or administrative filing not introduced into evidence and pertinent to the issues on appeal shall be included in the record.

(2) No change

(3) No change

(4) No change

(b) ABBREVIATED RECORD. No change

(c) STIPULATED RECORD. No change

(d) INCOMPLETE RECORD. No change

(e) COSTS. No change

(f) RELIEF FROM COSTS. An appellant may be relieved in part or in whole from the costs for the preparation of the record on appeal, and may be reimbursed the costs of filing previously made pursuant to the provisions of Rule 16(a), if within 15 days from the date notice of the estimated costs for the preparation is served, he files with the Deputy a verified petition to be relieved of costs. The verified petition shall contain a detailed and sworn statement of all his assets, liabilities, and income. Appellant’s attorney or the appellant, if not represented by an attorney, shall include as a part of the verified petition an affidavit or affirmation that in his opinion the notice of appeal was filed in good faith and that the issues to be presented on appeal contained therein constitute a probable basis for the District Court to find reversible error. A copy of the verified petition shall be served upon the Division in Tallahassee and all other interested parties, and the Clerk. The Deputy shall promptly conduct a hearing on the verified petition giving at least 15 days notice to the appellant, the Division, and all other interested parties, which shall all be parties to the proceeding. The Deputy may enter an order without such hearing if no objection is filed by the Division of an interested party within 12 days from the date the verified petition is filed. Said proceedings shall be conducted in accordance with the workers’ compensation rules of procedure to the extent applicable. The forty five sixty day period for the preparation and filing of the record on appeal and, in the case of a denial of said petition, the fifteen day period for depositing the amount of record costs required, will then commence when the Deputy’s order thereon has become final (with an information copy provided to the Division and the District Court). Upon a finding by the Deputy that the appellant may be relieved in part or in whole from the costs for the preparation of the record on appeal, the Division shall reimburse the appellant the amount of the filing fee required by Rule 16(a).

(g) PREPARATION OF RECORD. No change

(h) FORMAT. No change

(i) TIME TO FILE. The appellant shall, pursuant to the directions of the Deputy, have the original or a copy of the record on appeal filed with the District Court within 45 60 days from the date of filing of the notice of appeal, unless the District Court Deputy Commissioner for good cause shown by petition filed prior to the expiration of said period, and after notice and opportunity for hearing, shall extend the time therefor. The appellant shall have a copy of the record on appeal served on each party or his attorney, and shall have a certificate of such service filed with the record on appeal when filed with the District Court. Unless the nature of the litigation dictates otherwise, service of a copy of the record on appeal on any one of the following: (1) the employer, (2) attorney for employer, (3) the carrier or servicing agent, (4) attorney for carrier or servicing agent shall be service of a copy of the record on appeal on the employer and carrier.

COMMENT

RULE 18.

18. (a) This change is intended to conform the rules to the legislative mandate (or comport with the legislative intent) set out in F.S. 440.29(2) which requires hearings before the Deputy Commissioner to be reported and authorizes the Division to contract for the reporting of the hearing. Current practice and procedure is apparently inconsistent, with Some districts employing court reporters and others not. The Rules Committee of the Workers’ Compensation Section has been advised of several instances in which the record on appeal has been inadequate for purposes of deciding the appeal, resulting in some cases in irreparable damage and, in others, of unnecessary expense involving de novo proceedings.

18. (f) The changes are intended to relieve the insolvent appellant of the costs of the newly imposed filing fee for the appeal to the First District Court of Appeal. There previously was no filing fee to the Industrial Relations Commission and no reason to provide for relief from that cost. Since the Division bears the cost of the preparation of the record in cases of total or partial insolvency of the appellant, it should also bear the cost of the filing of the appeal.

18. (i) The change in subparagraph (i) provides that the Deputy Commissioner, who still has physical possession of the file and can more easily handle the ministerial duties involving the record, should deal with any extensions required for filing the record.

RULE 21. JURISDICTION: PROPOSED SETTLEMENT: MOTION FOR REMAND

(a) No change

(b) No change

(c) MOTION FOR REMAND. Upon a joint motion of the parties stating that a proposed settlement agreement has been reached, the District Court may remand the cause to the Deputy for consideration of the proposed settlement and the entry of an appropriate order, within the time provided by the District Court.

COMMENT

RULE 21.

This change has been suggested to provide for the court’s continuing control over matters within their jurisdiction but remanded to the Deputy Commissioner for the purpose of determining if the settlement is in the parties’ best interests.

RULE 23. MOTIONS

(NEW)

(a)CONTENTS OF MOTION: RESPONSE. Unless otherwise prescribed by these rules, an application for an order or other relief available under these rules shall be made by filing a motion therefor. The motion shall state the grounds on which it is based, the relief sought, argument in support thereof and appropriate citations of authority. A motion for an extension of time shall, and other motions where appropriate may, contain a certificate by the movant’s counsel that he has consulted opposing counsel and that he is authorized to represent that opposing counsel either has no objection or will promptly file an objection. A motion may be accompanied by an appendix, which may include affidavits and other appropriate supporting documents not contained in the record. A party may serve one response to a motion within 10 days of service of the motion. The Court may shorten or extend the time for response to a motion.

(b) EFFECT ON PROCEEDINGS. Except as prescribed by Section (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts which bear a time relation to it. A conformed copy of an order extending time entered by a lower tribunal shall be transmitted forthwith to the Court.

(c) MOTIONS TO STRIKE. Motions to strike a brief or portions of a brief shall not be entertained by the Court. However, a party, in his own brief or by filing a suggestion, may call to the District Court’s attention a breach of these rules. Statements in briefs not supported by the record shall be disregarded and may constitute cause for imposition of sanctions.

(d) MOTIONS NOT TOLLING TIME.

(1) Motions for stay pending appeal.

(2) Motions relating to oral argument.

(3) Motions relating to joinder and substitution of parties.

(4) Motions relating to amicus curiae.

(5) Motions relating to attorney’s fees on appeal.

(6) Motions relating to service.

(7) Motions relating to admission or withdrawal of attorneys.

COMMENT

RULE 23.

This replaces the former Rule 23 governing Motions entirely.

The Rule conforms motion practice in the First District in workers’ compensation cases to motion practice in the First District in other cases under Florida Appellate Rule 9.300. This change is essentially identical with Rule 9.300 with the exception of the addition of subsection (c) which is retained from the former Rule 23.


author: OVERTON, Justice.

text:
    James E. DODSON and Lorraine L. Dodson, Petitioners, v. Charles L. PERSELL and United States Fidelity & Guaranty Company, Respondents.
    No. 56116.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Bill Hoppe and Mary Friedman of Colson & Hicks, Miami, for petitioners.

      Steven R. Berger of Carey, Dwyer, Cole, Selwood & Bernard, Miami, for respondents.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amici curiae.
    Joseph P. Milton, Jacksonville, for Jacksonville Defense Lawyers Association, amici curiae.
    James E. Tribble and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for The Florida Defense Lawyers Association, amici curiae.
   OVERTON, Justice.

This is a petition for writ of certiorari to review the Third District Court of Appeal’s decision reported at 365 So.2d 413 (Fla. 3d DCA 1979), and concerns the entitlement of a party to discover the existence and contents of surveillance films or photographs pursuant to the provisions of Florida Rule of Civil Procedure 1.280. There is clear conflict. The Third District Court of Appeal, both in the decision sought to be reviewed and in Collier v. McKesson, 121 So.2d 673 (Fla. 3d DCA 1960), has held that such films and photographs are protected from discovery by the “work product” privilege. The Fourth District, on the other hand, has held that the existence and contents of such materials are discoverable. Corack v. Travelers Ins. Co., 347 So.2d 641 (Fla. 4th DCA 1977); Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975). The First District Court has held that a party may discover the existence of surveillance films, but has not addressed the question of whether the films’ contents are discoverable. Howard Johnson’s Motor Lodges, Inc. v. Baranov, 379 So.2d 114 (Fla. 1st DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. (prior to April 1, 1980).

We resolve the conflict and hold, in summary, that (1) the existence of surveillance movies and photographs is discoverable in every instance; (2) the contents are discoverable if the materials will be used as evidence either substantively or for impeachment; (3) if the movies or photographs will not be used as evidence by the holder, the contents are discoverable only upon a showing of exceptional circumstances; (4) the party seeking discovery must be afforded a reasonable opportunity to observe the movies or photographs before their presentation as evidence; and (5) within the trial court’s discretion, the sur-veilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection.

Petitioner Dodson’s complaint alleges that respondent Persell negligently collided his automobile with the automobile of Dodson, causing Dodson serious injury. The record reflects that the petitioner, as plaintiff in the trial court, propounded interrogatories to discover whether surveillance of the petitioner had taken place, whether photographs or movies were taken, and, if so, the time and place taken, the substance of what the films purported to show, and the qualifications of the photographer. Additionally, petitioner properly requested production of any such photographs or films. Relying on the “work product” privilege, respondent objected to each of the interrogatories and the production request. The petitioner moved to compel production, but the trial court, after hearing, denied the motion and sustained respondent’s objections. At trial, the respondent did in fact present both the testimony of its private investigator and surveillance materials which the court, over objection, admitted into evidence. The jury subsequently rendered its verdict for respondent, and the trial court entered judgment accordingly. On appeal, the Third District affirmed, holding that surveillance films may constitute work product and may be excluded from discovery on that basis. 365 So.2d at 413. We disagree and expressly disapprove this holding.

Petitioner contends that the existence and contents of surveillance films need to be disclosed prior to trial and must be treated like any other evidence in order to avoid misuse of the film. Petitioner cites Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.1973), in which the court stated:

[T]he camera may be an instrument of deception. It can be misused. Distances may be minimized or exaggerated. Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up. The editing and splicing of films may change the chronology of events. An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently. We are all familiar with Hollywood techniques which involve stuntmen and doubles. Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false.

Id. at 150. Petitioner further asserts that if pretrial disclosure of surveillance films is not required, plaintiffs will be without means to effectively challenge or prepare rebuttal evidence against surveillance materials, citing the following statement by the Supreme Court of New Jersey in Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976):

The surprise which results from distortion of misidentification is plainly unfair. If it is unleashed at the time of trial, the opportunity for an adversary to protect against its damaging inference by attacking the integrity of the film and developing counter-evidence is gone or at least greatly diminished.

Id. at 57, 350 A.2d at 477. In short, the petitioner urges that we should side with the weight of authority by holding that surveillance movies must be treated as any other evidence which will be presented at trial.

The respondents on the other hand contend that surveillance films and materials are protected by the work product privilege and consequently are not subject to discovery. The respondents assert that if a plaintiff is informed of the existence of surveillance materials and views the contents before trial, he will tailor his testimony to reconcile any possible inconsistencies. In respondents’ view, allowing discovery would severely limit the impact that surveillance materials would have upon the jury and would practically eliminate surveillance as a means to prevent overstated and fraudulent claims. Respondents further contend that discovery of surveillance films is not necessary to eliminate surprise because the surveillance film involves facts more readily known.by the plaintiff than the defendant and consequently there is no surprise. In summary, the respondents assert that we should adopt the reasoning of Collier v. McKesson and hold that surveillance films which are to be used for impeachment purposes constitute work product and may be excluded from discovery.

This Court, as most jurisdictions, adopted discovery as part of our procedural rules to improve our system of justice. It is a tool intended (1) to identify at early stages of a proceeding the real issues to be resolved; (2) to provide each party with all available sources of proof as early as possible to facilitate trial preparation; and (3) to abolish the tactical element of surprise in our adversary trial process. In Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970), we stated that the primary purpose of our rules:

is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results.

Id. at 111. In Surf, we expressly set forth guidelines to determine which materials and information are subject to discovery and which are classified as falling within the work product privilege, stating:

[generally, those documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorney as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence, come within the general category of work product.

Id. at 112. Further, in Surf we fully recognized the United States Supreme Court’s landmark decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451 (1947).

A search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Those relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics. We caution that discovery was never intended to be used and should not be allowed as a tactic to harass, intimidate, or cause litigation delay and excessive costs.

First, adhering to the philosophy expressed in Surf and in accordance with the majority view, we hold that upon request a party must reveal the existence of any surveillance information he possesses whether or not it is intended to be presented at trial. What we require is that a party must disclose the existence of material which is or may be relevant to the issues in the cause whether as substantive, corroborative, or impeachment evidence. Relevant evidence cannot be allowed to remain hidden in a party’s or an attorney’s files. Knowledge of its existence is necessary before a judicial determination can be made as to whether the contents are privileged.

Second, we hold the contents of surveillance films and materials are subject to discovery in every instance where they are intended to be presented at trial either for substantive, corroborative, or impeachment purposes. Any work product privilege that existed for the contents ceases once the materials or testimony are intended for trial use. More simply, if the materials are only to aid counsel in trying the case, they are work product. But, if they will be used as evidence, the materials, including films, cease to be work product and become subject to an adversary’s discovery.

Third, in limited instances, the contents of surveillance materials that are not intended to be submitted as evidence are subject to discovery if they are unique and otherwise unavailable, and materially relevant to the cause’s issues. An example is a photograph of a scene which has been changed or cannot be reproduced. The philosophy of this type of discovery was clearly expressed in Hickman v. Taylor, where the Court stated:

We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty.

329 U.S. at 511, 67 S.Ct. at 394. This type of discovery, however, is of limited application. Clearly, one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.

Fourth, with reference to our holding that a party is entitled to discover the existence and contents of surveillance information which will be used as evidence, it necessarily follows that the seeking party must be afforded a reasonable opportunity to view the surveillance information before trial. The surveilling party’s failure to comply with such a discovery request will bar the information’s use as evidence in the cause unless the trial court finds that the failure to disclose was not willful and either that no prejudice will result or that any existing prejudice may be overcome by allowing a continuance of discovery during a trial recess.

Fifth, we recognize that there is some merit in respondent’s contention that surveillance can prevent fraudulent and overstated claims. In this regard, fairness requires that we allow the use of surveillance materials to establish any inconsistency in a claim by allowing the surveilling party to depose the party surveilled after the movies have been taken or evidence acquired but before their contents are presented for the adversary’s pretrial examination. We note that under present procedural time constraints, the surveilling party in a personal injury action ordinarily has the opportunity to take discovery in this manner without any court order. In our view, the trial court’s discretion to allow the discovery deposition before disclosure is an appropriate middle road to ensure that all relevant evidence reaches the trier of fact in a fair and accurate fashion. See Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976).

For the reasons expressed, we quash the instant decision of the Third District Court of Appeal and disapprove its decision in Collier v. McKesson, 121 So.2d 673 (Fla. 3d DCA 1960), and remand the cause with directions to grant a new trial. To the extent that they are in accord with this opinion, we approve the decisions of the district courts of appeal in Howard Johnson’s Motor Lodges, Inc. v. Baranov, 379 So.2d 114 (Fla. 1st DCA 1979); Corack v. Travelers Insurance Co., 347 So.2d 641 (Fla. 4th DCA 1977); Spencer v. Beverly, 307 So.2d 461 (Fla. 4th DCA 1975).

It is so ordered.

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

      . See Martin v. Long Island RR., 63 F.R.D. 53 (E.D.N.Y.1974); Blyther v. Northern Lines, Inc., 61 F.R.D. 610 (E.D.Pa.1973); Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148 (E.D.Pa.1973); Zimmerman v. Superior Court, 98 Ariz. 85, 402 P.2d 212 (1965); Crist v. Goody, 31 Colo.App. 496, 507 P.2d 478 (1972); Olszewski v. Howell, 253 A.2d 77 (Del.Super.1969); Boldt v. Sanders, 261 Minn. 160, 111 N.W.2d 225 (1961); Jenkins v. Rainner, 69 N.J. 50, 350 A.2d 473 (1976). Cf. Hughes v. Groves, 47 F.R.D. 52 (W.D.Mo.1969) (addresses photographs generally).

      . See Hikel v. Abousy, 41 F.R.D. 152 (D.Md. 1966); State ex rel. St. Louis Pub. Serv. Co. v. McMillian, 351 S.W.2d 22 (Mo.1961). Cf. Bogatay v. Montour Ry., 177 F.Supp. 269 (W.D.Pa.1959) (surveillance materials not used as evidence or used exclusively for impeachment not discoverable). See generally Note, Procedure-Production of Surveillance Material-Interrelationship of Discovery & the Prevention of Fraud, 51 Iowa L.Rev. 769 (1966).

      . In Hickman, the Supreme Court originally recognized the work product exception that certain materials prepared by an attorney in the anticipation of litigation may be protected from discovery. This Court has clearly accepted the reasoning in Hickman. Pinellas County v. Carlson, 242 So.2d 714 (Fla.1971); Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Shell v. State Rd. Dept., 135 So.2d 857 (Fla.1961); Seaboard Air Line Ry. v. Timmons, 61 So.2d 426 (Fla.1952); McGee v. Cohen, 57 So.2d 658 (Fla.1952); Miami Transit Co. v. Hurns, 46 So.2d 390 (Fla.1950); Atlantic Coast Line R.R. v. Allen, 40 So.2d 115 (Fla.1949).

      . Accord, Florida Rule of Civil Procedure 1.280(b)(3)(B), which provides that a party may discover his adversary’s expert’s opinion where it would be impracticable to obtain an opinion on the same subject by other means. But cf. Pinellas County v. Carlson, 242 So.2d 714 (Fla.1971); Shell v. State Rd. Dept., 135 So.2d 857 (Fla.1961) (holding that government experts’ opinions in condemnation proceedings are sub•ject to discovery even though not intended as evidence, exception to general rule).


author: ADKINS, Justice.

text:
    FULLER LUMBER COMPANY, Shelby Mutual Insurance Company, Petitioners, v. John E. PARLER, Respondent.
    No. 56567.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Heskin A. Whittaker of Whittaker, Pyle, Stump & Webster, Orlando, for petitioners.
    Edward H. Hurt and Donna L. Bergh, Orlando, for respondent.
   ADKINS, Justice.

This cause is before us on petition for writ of certiorari to review an order of the Industrial Relations Commission affirming that of the Judge of Industrial Claims. We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution (1972).

At issue is payment for attendant care services as provided for by a stipulation and subsequent order thereon. Claimant was hospitalized in the fall of 1977. At a hearing on January 19,1978, the issue of attendant care was discussed; the following excerpt from the record reflects the stipulation on this issue:

Counsel for Claimant: And, also Judge, since the middle of December, which I think was the 16th or 17th of December, the claimant was released from the hospital and the ... it is agreed and stipulated by and between the parties that $150.00 a week shall be paid for him for attendant care by Mr. Faulkner until further Order of the Court.
Counsel for Employer/Carrier: Or as long as reasonably necessary, yes. I don’t know that we say the further Order of the Court.
Counsel for Claimant: And I would like the stipulation to further read that the $150.00 be paid directly to Mr. Parler [claimant] because part oi that money goes to paying the rent and part of it goes to paying the food of the attendant and so much to the attendant. That’s how it was arrived at so we’d like the stipulation... .
Counsel for Employer/Carrier: I think that should be satisfactory with the carrier.
Judge: Fine
Counsel for Claimant: Fine
Judge: So stipulated

On February 20, 1978, the Judge of Industrial Claims entered an order which stated, inter alia:

It is further stipulated between the parties that the employer/carrier will pay to the claimant $150.00 per week, beginning December 16, 1977, representing compensation for attendant care.

At the time the above order was entered, the Judge of Industrial Claims and carrier were unaware that claimant had discontinued the services of Mr. Faulkner and had gone to South Carolina to stay with his family as of February second. When the carrier learned of this on February 28th it stopped payment on a draft which would have paid the weekly amount through that date and reissued a draft in an amount which paid claimant only up to February 2, 1978. The employer/carrier then petitioned to modify the February 20th order to exclude payment for attendant care while claimant was with his family. After a hearing the Judge of Industrial Claims found that based upon the stipulation as approved in the February 20th order, “the employer/carrier is responsible for and should pay to the claimant compensation for attendant care from February 2,1978 to April 17, 1978 or 10.5 weeks at $150.00 per week.” The Industrial Relations Commission affirmed this without discussion.

At the hearing on the petition for modification the employer/carrier argued that a change of condition had occurred between the oral stipulation of January 19th and the order entered on that stipulation on February 20th, /. e., claimant had disengaged Mr. Faulkner and had moved in with his family. The claimant argued that the February 20th order for attendant care was binding until the employer/carrier presented evidence that the need for such care had ceased. The Judge of Industrial Claims did not address these arguments, choosing instead to rely blindly on the stipulation for attendant care.

We find that there has been a departure from the essential requirements of the law.

In Steele v. A. D. H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965), the parties stipulated to a 50% permanent partial disability rating which was approved by the deputy commissioner. At a subsequent hearing on a petition to modify that order, the employer/carrier presented evidence that claimant was working intermittently at his pre-injury occupation. Admittedly, there remained at least a 20% permanent partial disability to the shoulder and 15% to the back. The deputy commissioner concluded there was no substantial change of condition or mistake of fact and denied the petition for modification. The Industrial Relations Commission reversed. This Court reversed the Industrial Relations Commission saying:

We find in the record abundant support for the deputy’s conclusion that there had been no mistake of fact or change of condition, one of which must be established to warrant modification of the original order which was thoroughly justified, if for no other reason, because it was founded on the stipulation of the parties. We think it may be assumed without any violence of logic that when parties agree to facts and induce a deputy to enter an order because of confidence in their joint representation, all of them are in poor position later to represent that they were mistaken about those facts, in the absence of fraud, overreaching or some such element, but none is indicated in this case.

174 So.2d at 18. (Emphasis in original).

This language does not forever preclude modification of an order based upon a stipulation. Indeed, the same decision goes on to state:

It is not too difficult to temper the effect upon a stipulation of an application for modification on the ground of a change in condition, for conceivably such an accord might be based on a present condition while progress of an injury not realized or anticipated at the time might develop into a different condition more or less serious. In such circumstances the remedy under the statute would obtain.

Id. at 19.

We believe the latter precept applies to the facts in this case. At the time the parties agreed to $150.00 per week for attendant care, the claimant had not yet left for South Carolina. By the time the order was( entered, conditions seemed to have changed. The Judge of Industrial Claims should not have disregarded these allegations simply because the disputed order was based upon a stipulation. There is no competent substantial evidence in the record to support his order; the Industrial Relations Commission erred in affirming it on this point.

The order of the Industrial Relations Commission is quashed and the cause is remanded to the deputy commissioner (former Judge of Industrial Claims) for a hearing in accordance with the views herein expressed.

It is so ordered.

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

BOYD, J., dissents.


author: BOYD, Justice.

text:
    Harry Merle KOEHLER, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. 57500.
    Supreme Court of Florida.
    Nov. 20, 1980.
    Jonathan C. Green, Orlando, for appellant.
    Salvatore A. Carpino, Tallahassee, for ap-pellee.
   BOYD, Justice.

This cause is before the Court on appeal from a judgment of the circuit court in Orange County which passed on the constitutionality of state statutes. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

Appellant brought an action seeking a declaratory judgment and injunction against the Florida Real Estate Commission, which had initiated administrative proceedings seeking the suspension or revocation of his real estate salesman’s license. He asserted that the administrative procedures that would be used by the commission in proceeding against him would deny him due process and equal protection under the United States and state constitutions and would violate the principle of separation of powers. On motion of the commission, the circuit court dismissed the complaint. Appellant contends that the judgment should be reversed, arguing that section 475.26, Florida Statutes (Supp.1978), operates to deny him due process of law. The infirmity with the statute, appellant asserts, is that it provides for the commission, through its staff, to have investigative and prosecutorial functions as well as its final adjudicative function in disciplinary proceedings.

In support of his contention, appellant cites Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), in which the Supreme Court made some general statements about prejudice in the adjudicatory process:

Concededly, a “fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). This applies to administrative agencies which adjudicate as well as to courts. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S.Ct. 1689, 1698, 36 L.Ed.2d 488 (1973). Not only is a biased decisionmaker constitutionally unacceptable but “our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, supra, at 136, 75 S.Ct. [623] at 625, 99 L.Ed. 942; cf. Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 50 A.L.R. 1243 (1927). In pursuit of this end, various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.

421 U.S. at 46-47, 95 S.Ct. at 1463-1464. Appellant seeks to distinguish the present case from Withrow v. Larkin, which upheld as constitutional the combination of investigative and adjudicative functions under Wisconsin’s medical licensing procedures, and points to language saying,

That the combination of investigative and adjudicative functions does not, without more, constitute a due process violation does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.

Id. at 58, 95 S.Ct. at 1470.

Appellant points out that under the commission’s procedures that will be used against him there is no provision for the licensee to be present at a preliminary investigative hearing at which the accusations of complaining witnesses are heard. The Wisconsin statute at issue in Withrow provided for such presence, but such provision was not relied upon to any extent in rejecting the licensee’s due process attack on the medical examining board’s procedures. Under the Administrative Procedure Act, appellant will have the right to discover the information gained by the commission in its investigation “by any means available to the courts and in the manner provided in the Florida Rules of Civil Procedure.” § 120.58(l)(b), Fla.Stat. (1979). Thus he will have the same opportunity to learn the basis of the charges against him as does a medical doctor under the Wisconsin statute at issue in Withrow.

Appellant further seeks to distinguish the Withrow procedures from those he will face before the commission by pointing out that under Wisconsin law, the examining board refers cases in which it believes revocation or criminal proceedings are warranted to the district prosecuting attorney, who brings such actions before a judicial tribunal. The roles of these independent prose-cutorial and judicial officers were not the basis for the Court’s decision in Withrow. At issue there was the examining board’s authority, based on its own investigation and after an adversary hearing, to warn, reprimand, temporarily suspend, or institute criminal or revocation proceedings against, a medical doctor. Appellant argues, however, that his right to a formal hearing before a hearing officer from outside the real estate commission, section 120.57(l)(a), Florida Statutes (1979), does not cure the infirmity of having investigative, prosecutorial, and final adjudicative functions performed by the commission. In support of this contention, he asserts that the hearing officer’s findings of fact and conclusions of law are recommendations only, which the commission may accept or disregard. This assertion is • erroneous. The commission is bound by the hearing officer’s findings of fact if they are based upon competent, substantial evidence.' § 120.57(l)(b)(9), Fla.Stat.' (1979). To reject or modify the facts as found by the hearing officer the agency board must state with particularity that the finding is not so supported. Id. The commission’s statement to this effect becomes in turn a finding of fact liable to be set aside on appeal if not supported by competent, substantial evidence. § 120.68(10), Fla.Stat. (1979).

In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the Court commented:

The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication ... must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Id. at 47, 95 S.Ct. at 1464. The Court discussed a number of its own decisions in the administrative law field and concluded that “our cases, although they reflect the substance of the problem, offer no support for the bald proposition .. . that agency members who participate in an investigation are disqualified from adjudicating. The incredible variety of administrative mechanisms in this country will not yield to any single organizing principle.” Id. at 52, 95 S.Ct. at 1467. The “mere exposure to evidence” in the investigative phase of a proceeding, the Court said, is “insufficient in itself to impugn the fairness” of board members when they later sit in judgment. Id. at 55, 95 S.Ct. at 1468. See also Winslow v. Department of Professional and Occupational Regulation, 348 So.2d 352 (Fla. 1st DCA 1977), cert.. denied, 365 So.2d 716 (Fla.1978).

For the reasons expressed in this opinion we affirm the judgment of the circuit court.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ENGLAND, ALDERMAN and Me-DONALD, JJ., concur.


text:
    DEPARTMENT OF REVENUE of the State of Florida, Petitioner, v. BRUNNER ENTERPRISES, INC., Respondent.
    No. 57811.
    Supreme Court of Florida.
    Nov. 20, 1980.

      Jim Smith, Atty. Gen. and E. Wilson Crump, II and Shirley W. Ovletrea, Asst. Attys. Gen. Tallahassee, for petitioner.
    C. Gary Williams and Charles L. Early of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for respondent.
   ADKINS, Justice.

The First District Court of Appeal has certified the following question to this Court as being one of great public interest:

Is the gain from an out-of-state sale of stock held by a foreign corporation doing business in Florida taxable under the Florida Corporate Income Tax Code, and if so, what method of computation should be used?

Department of Revenue v. Brunner Enterprises, 375 So.2d 23, (Fla. 1st DCA 1979). We have jurisdiction. Art. Y, § 3(b)(3), Fla.Const. (1972).

As noted by the district court of appeal, the first portion of the question, relating to the taxability of the gain, was certified to this Court in Roger Dean Enterprises, Inc. v. Department of Revenue, 371 So.2d 101 (Fla. 4th DCA 1978). We have addressed the issue and answered the question in the affirmative:

[W]e hold that the gain from an out-of-state sale of stock held by a foreign corporation doing business in Florida may be taxable under the Florida Corporate Income Tax Code.

Roger Dean Enterprises, Inc., v. Department of Revenue, 387 So.2d 358, 365 (Fla.1980). Brunner Enterprises, Inc., now asks us to ascertain the proper method of computation.

Brunner Enterprises, Inc., is a Delaware corporation which maintains its principal place of business in Illinois. During the fiscal years ending September 30, 1973, and September 30, 1974, it owned and operated citrus groves in Florida through its Maru-mike division. The daily operation of the citrus groves was in the hands of Travis Murphy. The company’s president, Fred J. Brunner, came to Florida only periodically.

During the years in question, Brunner Enterprises, Inc., realized capital gain for federal income tax purposes from the sale of stock which it owned in an Illinois bank. The bank itself and Brunner’s purchase and sale thereof, had no connection whatsoever with the state of Florida.

Brunner Enterprises, Inc., subtracted the gain from the sale of the bank stock on its Florida Corporate Income Tax Returns for 1973 and 1974. On audit, the Department of Revenue returned these amounts to the tax base and assessed correlative tax deficiencies. Brunner Enterprises, Inc., challenged the imposition of the additional tax and the circuit court entered final summary judgment in the taxpayer’s favor citing Stan Musial & Biggie’s, Inc. v. Department of Revenue, 363 So.2d 375 (Fla. 1st DCA 1978).

There is much discussion in the record and in the briefs as to the unitary or non-unitary nature of Brunner Enterprises. See Fla.Admin.Code Rule 12C-1.15(4)(a). Under our decision in Roger Dean, the fact that a business is or is not unitary is not determinative of whether the normal three-factor apportionment formula should be applied or whether another method is appropriate. §§ 214.71 and 214.73, Fla.Stat. (1973). Even if the taxpayer can show the requisite constitutional dimension which under Roger Dean justifies deviation from the three-factor formula, the out-of-state gain must be included in the tax base, i. e., the federal taxable income. §§ 220.12, 220.13, Fla.Stat. (1973).

The second portion of the question certified is answered as follows:

The method of computation under the Florida Corporate Income Tax Code used to tax the gain from an out-of-state sále of stock by a foreign corporation doing business in Florida should include the gain in the tax base as described in sections 220.12-13, Florida Statutes (1973).

The decision of the district court of appeal is quashed, and the cause is remanded with instructions to reverse the judgment of the trial court and further remand for proceedings consistent with our opinion in Roger Dean Enterprises, Inc., v. Department of Revenue, supra, as well as the views expressed in the instant opinion.

It is so ordered.

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

OVERTON, J., dissents.