author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Ex parte Barbara EDWARDS and Jordan Machine Shop, Inc. (In re Jacqueline STRONG, etc. v. Barbara EDWARDS, et al.)
    83-539.
    Supreme Court of Alabama.
    May 11, 1984.
    Malcolm L. Wheeler and M. Wayne Wheeler, Birmingham, for petitioners.
    J. Scott Vowell of Beddow, Fullan, & Vowell, Birmingham, for respondents.
   MADDOX, Justice.

The issue presented by this petition for mandamus is whether the trial court abused its discretion by permitting appellee (respondent Strong) to modify the record on appeal, pursuant to Rule 10(f), Ala.R. App.P., more than seven days after appellants (petitioners Edwards and Jordan Machine Shop, Inc.) had designated the record on appeal. We conclude that the trial court did not abuse its discretion, and we deny the writ.

On December 5, 1983, Barbara Edwards and Jordan Machine Shop, Inc., defendants below, gave notice of their intention to appeal a judgment of September 19, 1983, and a post-judgment order of November 4, 1983. On December 12, 1983, pursuant to Rule 10(b)(1) and (2), Ala.R.App.P., they designated the record for appeal, which apparently included only a portion , of the trial testimony and exhibits. Although the issues that were to be presented for review were served on plaintiff/appellee Jacqueline Strong, she failed to designate, within seven days, any additional portions of the record as permitted by Rule 10(b)(1) and (2), Ala.R.App.P. On February 1, 1984, she filed a motion with the trial court for a modification of the record under Rule 10(f), Ala.R.App.P., to include the remaining testimony and exhibits from the trial. This motion was granted.

Appellee also filed a motion with this Court requesting that the time period for filing briefs be suspended pending filing of the modified record. This Court granted that motion. Appellants then filed in this Court their petition for a writ of mandamus to the Honorable Jack D. Carl, Circuit Judge, Tenth Judicial Circuit, in which they assert that, because the appellee failed to designate the portions of the trial proceedings that she desired included in the record on appeal within the seven days prescribed by Rule 10(b)(1) and (2), the trial judge erred by permitting appellee to modify the record fifty days later. Appellee argues, however, that Rule 10(f) not only permits, but encourages, as a matter of justice, the correction of material omissions from the record on appeal by supplementing the record at any time.

In granting the appellee’s motion for modification of the record, the trial court stated:

“This cause came on to be heard on plaintiffs (appellee’s) Motion for Modification of the Record. The Court, having considered same and heard argument from counsel for the parties, is of the opinion that the issues presented to the appellate court for review cannot be adequately considered by that court without the addition to the record as requested by the plaintiff (appellee). It is, therefore, ordered that the record on appeal be modified by adding to the reporter’s transcript all testimony and exhibits offered at the trial of this cause except for those items previously designated by the appellants, and in addition thereto that the Clerk’s record be supplemented by adding thereto the appellee’s Motion for Modification of the Record and this Order. * * *”
Rule 10(b)(2) states in pertinent part: It * * »
“The parties may designate parts or all of the proceedings as they deem necessary for inclusion in the reporter’s transcript. If the appellant urges on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the reporter’s transcript all evidence relevant to such finding or conclusion.
“The appellant shall, within seven days (one week) after filing notice of appeal, file with the clerk of the trial court and order and file with the court reporter and serve on the appellee a description of the parts of the proceedings (excluding exhibits, which are in the clerk’s record)see 10(b)(1) which he deems necessary for inclusion in the reporter’s transcript and, if less than all of the proceedings are designated, in addition thereto the appellant shall serve on the appellee a statement of the issues he intends to present on appeal. If the appellee deems that other parts of the proceedings should be included or that the entire proceedings should appear in the reporter’s* transcript, he shall, within seven days (one week) after service of the appellant’s designation on him, file with the clerk of the trial court and court reporter and serve on the appellant a designation which shall contain a description of additional parts to be included or a recital that the entire proceedings shall be included. If the appellant shall refuse to order such additional parts, the appellee shall either order the additional parts or apply to the trial court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the reporter for payment of the cost of the reporter’s transcript.”

A corresponding rule applies with respect to the portion of the record on appeal containing the clerk’s record. See Rule 10(b)(1).

Although appellants (petitioners) designated less than all the trial proceedings for the appellate record, they nevertheless informed the appellee of the issue they intended to pursue on appeal, as required by Rule 10(b). Thus, this question arises: Is an appellee, who fails to designate the other portions of the proceedings below for the record on appeal within seven days, even if the failure was because of error or accident, precluded from having the record modified at a later date?

In Trimble v. City of Prichard, 438 So.2d 745 (Ala.1983), this Court dismissed the appeal because it lacked subject matter jurisdiction, but also addressed a situation where the appellant, more than forty days after filing notice of appeal, designated less than all the proceedings, and also failed to serve on the appellee a statement of the issue to be presented on appeal. Approximately sixty-four days after filing the notice of appeal, appellant attempted to cure her failure to include a transcript of the hearing in the appellate record by proposing that the parties stipulate that the reporter’s transcript could be omitted from the record. This Court held that “[bjecause it is the obligation of the appellant to see that the record on appeal contains evidence sufficient to warrant reversal, [the appellant] must bear the strict penalty for omission of this vital material.” 438 So.2d at 747.

The rationale of Trimble v. City of Prichard, however, is not authority for granting the appellants’ request for mandamus to prevent a modification of the appellate record by the appellee more than seven days after appellants made their designation of the record. In Trimble, the appellant did not file a motion under the provisions of Rule 10(f), as the appellee did in this case; therefore, the issue in Trimble did not involve whether the omission by the appellant to designate a portion of the record in that case was due to an “error or accident.” The spirit of Rule 10 is to permit parties to designate less than the whole record, if only a portion of that record is necessary for a decision of the merits on the appeal. As the commentary to the rule states: “Rule 10 works a substantial change in the form of the record on appeal from former Alabama practice.” As further stated in the commentary, Rule 10 “encourages designation of material matters, rather than wholesale inclusion of immaterial matter on the appeal.” (Emphasis added.) Rule 10(f) provides:

“If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted.”

We conclude that Rule 10(f) acts as a safety valve to allow a party who has, by reason of “error or accident,” failed to designate a material portion of the record to request the trial court or this Court to permit additional portions of the record to be designated.

It is plain from the language of Rule 10(f) that this rule was intended to apply in situations where, as here, omissions from the record are determined to be due to either “error or accident.” We note that the trial court, prior to granting its order in this case permitting the appellee to modify the appellate record, conducted a hearing and listened to the arguments of the parties. Hence, we conclude that the trial court, by permitting the appellee to modify the record despite her tardiness, did not abuse its discretion under Rule 10(f). Cf. Walker v. Eubanks, 424 So.2d 631, 632-633 (Ala.Civ.App.1982). We further conclude that the trial court’s actions were consistent with the intent of the appellate rules, which is to “assure the just, speedy and inexpensive determination of every appellate proceeding on its merits.” Rule 1, Ala.R.App.P.

Petitioners (appellants) have failed to show this Court that they have a clear right to relief or that they will suffer irreparable injury because the trial court granted appellee’s motion to modify the record on appeal. See Ex parte Slade, 382 So.2d 1127 (Ala.1980); McDowell-Purcell, Inc. v. Bass, 370 So.2d 942 (Ala.1979). Consequently, mandamus is inappropriate in this case, and petitioners are not entitled to the relief requested.

WRIT DENIED.

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

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur because the trial court must have implicitly determined that the omission was the result of an “error or accident” and, therefore, that correction or modification of the record was appropriate pursuant to A.R.App.P. 10(f).

      . Since we do not have a copy of the record before us, this Court is limited to the allegations of the parties with respect to the actual content of the record designated for appeal.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Michael D. BROOKS v. STATE.
    1 Div. 628.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    James A. Tucker, Jr., Jackson, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The trial court adjudged defendant-appellant guilty and sentenced him to imprisonment for twenty years upon acceptance of his plea of guilty to an indictment that charged in pertinent part:

“Michael D. Brooks, ..., in the course of committing a theft of money, ..., the property of B & D Quik Shop, threatened the imminent use of force against the person of Angie Robinson, with the intent to compel acquiescence to the taking of or escaping with the property, while the said Michael D. Brooks was armed with a deadly weapon, to-wit: a pistol, in violation of § 13A-8-41 of the Code of Alabama.”

No question is raised as to the sufficiency of the transcript in showing that the plea of guilty was voluntarily, intelligently and understandingly interposed. The transcript discloses that a comprehensive inquiry was conducted that met all of the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related cases. The transcript contains the following as a part of the dialogue between the trial judge and defendant:

“Q. [The trial judge] All right. Now, the punishment for a Class A felony is not less than ten years nor more than ninety-nine years or life imprisonment in the penitentiary of the State of Alabama. However, the punishment for a Class A felony in which a firearm or deadly weapon, such as a pistol in this case, is used or attempted to be used in the commission of the offense, the punishment is not less than twenty years.
“So I am at this time informing you that the punishment for this offense of robbery in the first degree as charged in this indictment is not less than twenty years nor more than ninety-nine years or life imprisonment in the penitentiary of the State of Alabama.
“Do you understand what the punishment for the offense of robbery in the first degree is?
“A. Yes.”

In the single issue presented by appellant, he does not question the validity of the judgment of conviction. The following constitutes the conclusion of appellant’s brief:

“The appellant contends that Section 13A-5-6(a)(4), Code of Alabama, 1975, is unconstitutional in that it amounts to double jeopardy when applied to a conviction under Section 13A-8-41, Code of Alabama, 1975.
“Based on the foregoing argument, it is respectfully requested that the sentence imposed by the lower court be reversed.”

Alabama Code, § 13A-8-41, defining and proscribing robbery in the first degree, classifies the crime as a Class A felony. § 13A-8-41(c).

The foregoing quotation from the transcript as to the dialogue between the trial judge and the defendant lends strength to appellant’s position that the trial court would not have imposed punishment of imprisonment for twenty years if it had not been obliged to do so by the terms of § 13A-5-6(a)(4), and for that reason distinguishes the case from Norwood v. State, Ala.Cr.App., 424 So.2d 1351 (1982), in which a contention similar to the one now presented by appellant was rejected. The rationale in Norwood was that as the trial court in that case fixed defendant’s punishment within the legislative limits that were unquestionably constitutionally prescribed, it was impossible for the court on appeal to determine that the trial court fixed the punishment applied by reason of its having felt that it was “impelled” to do so by the language of § 13A-5-6(a)(5), which as to the issue raised by appellant is the equivalent of § 13A-5-6(a)(4). As accurately observed in Norwood v. State, at 424 So.2d 1352, subsections (4) and (5) were added in 1981 (Acts 1981, No. 81-840, p. 1505) as an amendment to Code 1975, § 13A-5-6.

Even though we are not fully convinced that the sentence would not have been for as much as twenty years irrespective of the applicable statutory minimum or that defendant did not waive his right to challenge the constitutionality of the 1981 amendment increasing from two years to ten years the minimum punishment, our conclusion as to the issue presented by appellant makes it unnecessary for us to consider such questions.

In support of his only contention for a reversal, appellant relies exclusively upon the cases of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978); and Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980). We now consider these authorities in their chronological order.

In Blockburger, involving a conviction on three counts of a five-count indictment for violations of provisions of the Harrison Narcotic Act, it is stated:

“The principal contentions here made by petitioner are as follows: (1) that, upon the facts, the two sales charged in the second and third counts as having been made to the same person, constitute a single crime; and (2) that the sale charged in the third count having been made not from the original stamped package, and the same sale charged in the fifth count as having been made not in pursuance of a written .order of the purchaser, constituted but one offense for which only a single penalty may be imposed.” 284 U.S. at 301, 52 S.Ct. at 181, 76 L.Ed. at 308.

The contentions made by petitioners were rejected by the Supreme Court, and the judgments of the trial court were affirmed. Blockburger has spawned a number of other contentions as to double jeopardy, but nothing in Blockburger leads to the conclusion that appellant herein has been made the victim of double jeopardy by double punishment or otherwise.

In North Carolina v. Pearce, supra, the Supreme Court dealt with ramifications of the subject of double jeopardy, as inhibited by the Fifth Amendment in coordination with the due process clause of the Fourteenth Amendment, arising in a case of each of two persons who, after a conviction, had been granted a new trial and on the subsequent trial were again convicted and the punishment imposed exceeded the punishment imposed on the first trial. The opinion furnished the solution to five separate and distinct problems presented by the two cases, but there is little, if any, relation between the problems presented in North Carolina v. Pearce and the single issue presented here.

In Simpson v. United States, supra, the Supreme Court considered a federal prosecution against two defendants, growing out of a single transaction, for bank robbery with firearms. The court held in an eight-to-one decision that the defendants sentenced under a bank robbery statute for the enhanced punishment, prescribed by the statute when the bank robbery was committed with a “dangerous weapon or device,” could not also be subjected to a consecutive term of imprisonment for the violation of another statute that provides that whoever uses a firearm in the commission of a federal felony shall be subject to punishment in addition to the punishment provided for the commission of such felony.

As to Busic v. United States, supra, we find considerable difficulty in determining how the controlling principle of the majority opinion should be applied to the statutes involved in the instant case. By the six-to-three opinion in Busic, it was decided that the guaranty against double jeopardy was violated by the trial court in its application of a provision for enhanced sentencing contained in 18 U.S.C. § 924(c) to defendants’ using firearms in the course of a felony proscribed by another statute which of itself authorizes enhancement when a firearm is used in the commission of the particular felony. The large number of felony statutes involved in Busic, as compared with the (3) state statutes involved herein, of itself tends to distinguish that case from this ease as to the issue herein, and when consideration is given to the separate concurring opinion of Justice Blackmun, in Bu-sic, in which Chief Justice Burger joined, we find no authority in Busic to hold that the sentence imposed herein constitutes a violation of the double jeopardy provision of the Fifth Amendment. At 446 U.S. 412, at 100 S.Ct. 1756, at 64 L.Ed.2d 382, the concurring opinion of Justice Blackmun is thus summarized:

“Blackmun, J., joined by Burger CH.J. concurring, expressed the view that while 18 U.S.C.S. § 924(c) is inapplicable where a defendant is charged with committing a subsequent offense violative of the statute that already provides for enhanced punishment for use of a firearm, the question of what punishments are constitutionally permissible when defendants are sentenced in a single proceeding is no different from the question of what punishments Congress intends to be imposed. (Emphasis supplied).”

We are persuaded that in the cases of the Supreme Court relied upon by appellant in which a violation of the Fifth Amendment proscription of double jeopardy was found in the sentences imposed, the error found was that of the trial court in its interpretation of one or more of the federal statutes involved, to the exclusion of any action by Congress in enacting such statutes. This conclusion has not been reached without difficulty, which is caused largely by the congeries of federal statutes involved in the cases relied upon by appellant other than North Carolina v. Pearce, the maze of crimes charged, the plural-count indictments in some of those cases, and the assimilation thereof in the instant case with three relatively simple and brief provisions of state statutes, and the conviction of only one person of only one crime.

An examination of the provision of the Act of the Alabama Legislature, Acts, 1981, No. 81-840, p. 1505, so as to add subdivision (4) to § 13A-5-6(a) of the Alabama Criminal Code prescribing a minimum of no “less than twenty years” term of imprisonment for a conviction of the crime to which defendant pleaded guilty leaves no doubt that it was the intention of the Legislature that a defendant convicted of the Class A felony of robbery in the first degree, as well as others who had been convicted of a Class A felony in which a firearm or deadly weapon was used or attempted to be used, should be sentenced to imprisonment “for not less than 20 years,” even though prior to such amendment a person convicted of robbery in the first degree could have been sentenced “for life or not more than 99 years or less than 10 years.”

We conclude that appellant’s Fifth Amendment guaranty against double jeopardy as made applicable to criminal procedures by states of the United States by the Fourteenth Amendment has not been violated.

Notwithstanding our difficulty in attempting to rationalize our conclusion in consonance with the profundity of wisdom found in the cited opinions of the Supreme Court, we are grateful for the light given us by such opinions. We are, nevertheless, reminded of the extrajudicial utterance of Justice Oliver Wendell Holmes that “The 14th Amendment is a roguish thing.”

The judgment of the trial court should be affirmed.

The writer is pleased to note that this conclusion is in accord with McCullough v. State, [1 Div. 636, Ms. Jan. 31, 1984], Ala. Cr.App., — So.2d -, in an opinion by Judge Tyson, which apparently was in the process of being written contemporaneously with the writing of this opinion.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

      . Harvard University Press, Holmes — Pollock [Sir Frederick Pollock] Letters, Vol. 2, p. 137 (1946).


author: BOWEN, Presiding Judge.

text:
    Albert BAKER, Jr. v. STATE.
    4 Div. 257.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.

      Tim Reynolds, Troy, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Albert Baker, Jr., a juvenile, was charged by petition with the intentional murder of Mattie Pearl Dansby. Prior to the hearing on the State’s motion to transfer Baker to the circuit court for criminal prosecution as an adult, the petition was amended to charge two counts of capital murder in addition to the original noncapi-tal charge of intentional murder. At the conclusion of the hearing, the juvenile court judge granted the motion as to the count charging intentional murder, but dismissed the two counts charging capital murder for lack of probable cause. The judge fully complied with Alabama Code § 12 — 15—34(f) (1975), setting forth in writing his reasons for granting the motion. The only issue raised on appeal concerns Baker’s confession.

Pearl Dansby was murdered during the early morning hours of August 22, 1983. Ms. Dansby was beaten severely about the face and head. The cause of her death was “trauma to the head”. Baker was taken into custody within hours of the murder. Pike County Sheriff Harold Anderson and a deputy transported him directly to the office of Ms. Pat Smith, a juvenile probation officer. Ms. Smith read Baker, the Miranda warnings and he indicated that he understood them. In response to questioning, Baker then admitted that he had hit Dansby repeatedly with “a stick”.

Baker maintains that the entire petition should have been dismissed because he was not properly informed of his rights under Rule 11, A.R.J.P., before he confessed. Specifically, he contends that he was not informed that he had a right to have his parent or guardian present.

Rule 11(A), A.R.J.P., provides that a child who is taken into custody is to be given the standard Miranda warnings, and, in addition, is to be informed “[i]f his counsel, parent, or guardian is not present, that he has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so.” (Emphasis added.) Rule 11(A) does not require that a juvenile be informed that he has the right to have a parent or guardian present, but only that he has the right to communicate with them. “We know of no absolute requirement which necessitates the presence of a parent or other interested adult in order for a juvenile to make an effective waiver.” Whisenant v. State, [Ms. 8 Div. 948, March 20, 1984] (Ala.Cr.App.1984).

The record discloses that Baker was not informed that he had the right to communicate with his parent or guardian. Yet, the record also discloses that the confession was voluntarily given. Baker has made no assertion to the contrary. In Whisenant, supra, this Court held that a juvenile’s voluntary confession is admissible at a transfer hearing even though he was not informed of his right to communicate with his parent or guardian. Baker, however, does not contest the admissibility of the confession and recognizes that otherwise inadmissible confessions may be used at a transfer hearing. His argument is that the failure to apprise him of his Rule 11(A)(4) right to communicate with his parent warrants a dismissal of the charges against him because that is the only adequate remedy available to him since the confession is admissible at the transfer hearing.

A transfer hearing is in the nature of a probable cause hearing. Winstead v. State, 371 So.2d 418, 420 (Ala.1979); Brown v. State, 353 So.2d 1384, 1387 (Ala.1977). “It is not a hearing to adjudicate the guilt or innocence of a child.” Gallagher v. State, 425 So.2d 1079, 1080 (Ala.1983). A transfer hearing is analogous to a preliminary hearing or examination held to determine whether there is probable cause to bind an adult defendant over to a grand jury. Cf Alabama Code § 15-11-9 (1975). Under Rule 5.1(a), Fed.R.Crim.P., “[ojbjections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12.” This rule reflects the holding of the United States Supreme Court in Giordenel-lo v. United States, 357 U.S. 480, 484, 78 S.Ct. 1245, 1249, 2 L.Ed.2d 1503 (1958). See Notes of Advisory Committee on Rules, Rule 5.1.

It follows from Giordenello and Rule 5.1 that charges are not to be dismissed because illegally obtained evidence was presented at the preliminary hearing. It would be senseless to hold that such evidence is admissible at the probable cause hearing, then rule that charges must be dismissed because it is admissible. “Since a transfer hearing does not determine the guilt or innocence of the juvenile, latitude is permitted in admitting evidence which would be otherwise inadmissible in a criminal prosecution.” Gulledge v. State, 419 So.2d 219, 220 (Ala.1982).

We need not determine at this time whether the failure to comply with Rule 11(A)(4) renders a juvenile’s confession inadmissible at trial. Indeed, it would be presumptuous of us to do so since this issue has never been presented to the trial court. Even if we assume that the confession was obtained “in violation of the Fifth Amendment, [Baker] would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.” United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419, 16 L.Ed.2d 510 (1966) (emphasis added) (In a prosecution for income tax evasion, the remedy for the government’s use of illegally obtained evidence prior to trial is suppression at trial and not dismissal of the prosecution). The fact that evidence was illegally obtained simply does not require the dismissal of the charges against a defendant.

“Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book.” Blue, 384 U.S. at 255, 86 S.Ct. at 1419.

The judgment of the juvenile court is affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    John Earl LACEY v. STATE of Alabama.
    6 Div. 329.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.

      Samuel L. Masdon of Manasco & Mas-don, Haleyville, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

John Earl Lacey was tried for and found guilty of driving under the influence of alcohol in the Municipal Court of Winfield, Alabama. The appellant appealed his case to the Marion Circuit Court. He represented himself during the trial and was again adjudged guilty. The trial judge fined him $100.00 plus court costs.

I

The sole issue the appellant raises on appeal is that his case should be reversed because the record fails to indicate he understandingly and intelligently waived his right to counsel at trial. While it is true that an understanding and intelligent waiver of an accused’s right to counsel cannot be presumed from a silent record, such is not applicable in this cause. Lake v. City of Birmingham, 390 So.2d 36 (Ala.Cr.App.1980), and authorities therein cited. An accused does not have a right to counsel unless he actually receives a term of imprisonment in misdemeanor cases. Lake, supra; Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In the case at bar, the appellant only received a fine. Thus, the appellant had no right to counsel. Therefore, it was not necessary that a waiver of this right appear in this record.

This case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ethel Leona DAVIS v. STATE.
    8 Div. 5.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.

      Don R. White, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Leona Davis was indicted pursuant to § 13A-6-2, Code of Alabama 1975, for the murder of Robert Nathan Davis, her husband, by “shooting him with a pistol.”

The jury found the appellant guilty of manslaughter and the trial court sentenced her to ten years’ imprisonment.

On June 26, 1983, the appellant shot and killed Nathan Davis. She shot Mr. Davis one time in the chest and two times in the back with a .22 caliber pistol, while they were at home in their house trailer.

Wesley Davis, the victim’s father, testified that he lived near the appellant and victim. He stated that he had heard the appellant threaten to kill Nathan Davis on several occasions. He stated that the appellant had made false accusations against her husband on many occasions and that she had a bad reputation for truthfulness. He testified that on the day of his son’s death he visited Leona and Nathan. He stated that Nathan had not been drinking on that occasion.

Dr. Josefino Aguilar, employed by the Alabama Department of Forensic Science, testified that Nathan Davis died of multiple gunshot wounds. He further testified that all three wounds were inflicted from very close range.

Denise Berryman testified that she lived down the road from the appellant. She stated that on the day of the killing, the appellant came to her home and told her that she had shot Nathan. She testified further that she had witnessed fights and arguments between Leona and Nathan on prior occasions.

Wesley Davis, Jr. testified that he had witnessed Leona Davis threaten to kill Nathan Davis on prior occasions.

Leona Davis testified that on the day of the killing Nathan was intoxicated and threatening to kill her. She stated that they started fighting in the bedroom and that Nathan was pulling her hair and hitting her. She stated that she reached under the mattress and pulled a gun out. She said that Nathan would not let her go so she shot him in the chest. She said that when he still would not let go of her, she shot him two more times.

Betty Elkins testified that she was familiar with the appellant’s reputation for truthfulness in the community. She stated that the reputation was bad and that she would not believe the appellant under oath.

Several other witnesses testified that Leona Davis had a bad reputation in the community for truthfulness.

From the trial court’s denial of her motion for a new trial, the appellant prosecutes this appeal.

I

The appellant contends that the trial court’s verdict of manslaughter is improper because there was evidence that the appellant acted in self-defense.

The law is settled in Alabama that where the appellant admits killing the victim, as in this case, the question of whether the act was justified as having been committed in self-defense is one for the jury to decide. Clark v. State, 39 Ala.App. 505, 104 So.2d 451 (1958); Townsend v. State, 402 So.2d 1097 (Ala.Cr.App.1981); Johnson v. State, 433 So.2d 473 (Ala.Cr.App.1982), affirmed, 433 So.2d 479 (Ala.1983). “[I]n order to be acquitted the evidence must raise in the minds of the jury a ‘reasonable doubt’ as to whether the defendant acted in self-defense.” Graham v. State, 339 So.2d 110 (Ala.Cr.App.), cert. denied, 339 So.2d 114 (Ala.1976); Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (Ala.1978); Townsend v. State, supra; Thompson v. State, 418 So.2d 226 (Ala.Cr.App.1982).

In this case the only evidence of self-defense was the testimony of the appellant. There was some testimony from other witnesses which conflicted with parts of the appellant’s account of the day of the killing. Self-defense evidence, like all other conflicting evidence, is a matter to be left to the jury to decide, and it is the province of the jury to decide how much weight and credibility to give such evidence or testimony. Moore v. State, supra; Warren v. State, 380 So.2d 305 (Ala.Cr.App.1979), cert. denied, 380 So.2d 307 (Ala.1980); Townsend v. State, supra; Thompson v. State, supra. The jury chose not to believe the appellant’s version of the incident, and thus, having resolved this issue, it is not the province of this court to determine the truthfulness of the appellant’s testimony. Therefore, we will not disturb the trial court’s ruling.

Moreover, our review of the record in this cause uncovers no problem with the weight and sufficiency of the evidence from which the appellant was adjudged guilty. “If the evidence showed that death was caused by a pistol intentionally fired at the person killed, unless self-defense is proved, the offense is either murder or manslaughter.” Lanier v. State, 43 Ala.App. 38, 179 So.2d 167 (1965); King v. State, 48 Ala.App. 154, 262 So.2d 764 (Ala.Cr.App.), cert. denied, 288 Ala. 744, 262 So.2d 767 (1972); Weaver v. State, 402 So.2d 1099 (Ala.Cr.App.1981).

There being no error in the record before us, this cause is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice.

text:
    Michael Ray SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 63021.
    Supreme Court of Florida.
    May 10, 1984.
    Frank J. Tassone, Jr., Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for respondent.
   ADKINS, Justice.

We have for review Smith v. State, 422 So.2d 1065 (Fla. 1st DCA 1982), which expressly and directly conflicts with State v. Doherty, 240 So.2d 332 (Fla. 4th DCA 1970). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

We approve and adopt the opinion of the First District Court of Appeal in Smith v. State. We disapprove State v. Doherty to the extent that it holds that the state, demonstrating the veracity of hearsay information relied on for an arrest, must show both the credibility of the informant and the reliability of his information.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: OVERTON, Justice. ADKINS, Justice,

text:
    Kent Edward GRAPPIN, Petitioner, v. STATE of Florida, Respondent.
    No. 63450.
    Supreme Court of Florida.
    May 10, 1984.

      Jerry Hill, Public Defender, and Allyn Giambalvo, Asst. Public Defender, Clear-water, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Second District Court of Appeal reported as State v. Grappin, 427 So.2d 760 (Fla. 2d DCA 1983), in which the district court held that the unlawful taking of two or more firearms during the same criminal episode is subject to separate prosecution and punishment under the theft statute as to each firearm taken. We find direct conflict with Thomas v. State, 405 So.2d 1015 (Fla. 1st DCA 1981); Drakes v. State, 400 So.2d 487 (Fla. 5th DCA), review denied, 411 So.2d 381 (Fla.1981); and Joiner v. State, 382 So.2d 1357 (Fla. 1st DCA), review denied, 388 So.2d 1114 (Fla.1980). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and we approve the decision of the district court.

The facts reflect that the petitioner was charged in a five-count information which alleged that he committed five separate acts of second-degree grand larceny by stealing five firearms during the course of a single burglary. Petitioner moved to dismiss the information contending that, under the circumstances of this case, he could only be charged with one larceny offense. At the hearing on petitioner’s motion to dismiss, it was agreed that the firearms in question were owned by the same individual and were taken from the same place at the same time. The trial court dismissed the information without prejudice to the state to file an amended information. Relying on Hearn v. State, 55 So.2d 559 (Fla.1951), the trial court held that where several items are taken at the same time and place as one continuous act, the offense is a single theft.

The state appealed the dismissal of the information and the district court reversed the trial court’s order. The district court recognized the principle that the “legislature can treat the simultaneous unlawful taking of two or more of a particular object of property as separate thefts.” 427 So.2d at 762. The district court further recognized, however, that where the “legislature does not establish the allowable unit of prosecution with clarity, the ambiguity must be resolved in the accused’s' favor.” Id. In construing the theft statute, section 812.014(2)(b), Florida Statutes (1981), to determine the allowable unit of prosecution intended by the legislature, the district court concluded that in the statute the legislature used the articles “a” and “any” to signify the permissible unit of prosecution. Because the article “a” was used in reference to “a firearm” in section 812.-014(2)(b)3, the district court determined, the legislature intended “to treat separately each stick in the bundle,” id. at 763, and to allow separate prosecution and punishment for the taking of each firearm. The trial court’s reliance on Hearn v. State, the district court determined, was incorrect because Hearn “antedated the enactment of the theft statute ... [and] conflicts with the legislature’s intent regarding the allowable unit of prosecution under parts 2 through 4 of section 812.014(2)(b).” Id. at 762. The district court concluded that

a common sense reading of the plain language of section 812.014(2)(b) demonstrates that the legislature unmistakably intended for the simultaneous unlawful taking of more than one firearm to be subject to a separate prosecution (and punishment) as to each firearm so taken. One who reads subsection (2)(b) is not only placed on guard that the unlawful taking of a single firearm is a single violation of the theft statute but is also provided with a fair warning that the simultaneous stealing of several firearms is several violations of the theft statute. In short, a single firearm is the unit of prosecution.

Id. at 763.

The petitioner contends that this Court should reject the district court’s construction of the statute and reaffirm the rule in Hearn that where several items are stolen in a single criminal episode only one larceny has occurred. Petitioner argues that to allow the state to divide a single theft offense into several separate larcenies is violative of double jeopardy protections because there has been only one taking. Further, petitioner asserts, the district court’s strained reading of the theft statute and its distinction between the articles “a” and “any” does not result in a common sense interpretation of the statute; both articles carry the same meaning and refer to one thing. Finally, the petitioner maintains that, at best, the legislative intent as to the permissible unit of prosecution is ambiguous and that, as the district court noted, any such doubt should be resolved in favor of the accused.

We agree with the district court and approve its decision. In our recent decision in State v. Getz, 435 So.2d 789 (Fla. 1983), which was decided after the district court issued its opinion in this case, we held that the grand theft of a firearm and the petit theft of a calculator and coins at the same time from the same place constitute separate offenses under section 812.014(2)(b) and (c). We concluded that “as the theft statute is written, the legislature intended to make theft of a firearm under subsection (2)(b)3 and theft of property worth less than one hundred dollars under subsection (2)(c) separate and distinct offenses, even where the thefts occur in a single criminal episode.” Id. at 791. In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the United States Supreme Court held that “[t]he punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress .... ” Id. at 82, 75 S.Ct. at 621. If the Congress does not fix the punishment for federal offenses clearly and without ambiguity, the Court held, then the rule of lenity applies and the ambiguity is to be resolved against turning a single transaction into multiple offenses. Where legislative intent as to punishment is clear, however, the rule of lenity does not apply. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the United States Supreme Court found the legislative intent clear, distinguished Bell, and upheld three separate convictions and sentences arising out of a single criminal episode of narcotics distribution.

We find that the use of the article “a” in reference to “a firearm” in section 812.-014(2)(b)3 clearly shows that the legislature intended to make each firearm a separate unit of prosecution. The construction which this Court and the district court place on this statute is consistent with federal court decisions construing similar federal statutes. Federal courts have held that the term “any firearm” is ambiguous with respect to the unit of prosecution and that several firearms taken at the same time must be treated as a single offense with multiple convictions and punishments being precluded. See United States v. Rosenbarger, 536 F.2d 715 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); United States v. Kinsley, 518 F.2d 665 (8th Cir.1975). On the other hand, the phrase “to receive or possess a firearm” has been held to express a legislative intent to allow separate prosecutions for each firearm. In United States v. Alverson, 666 F.2d 341, 347 (9th Cir.1982), the court stated:

Use of the article “a” stands in marked contrast to other language in other weapons statutes that have been interpreted to preclude prosecution for each object of the offense. Compare United States v. Brown [Brown v. United States], 623 F.2d [54] at 58 (use of “any”) with Sanders v. United States, 441 F.2d [412] at 414-15 (use of “a”).

In conclusion, we agree with the district court that this Court’s decision in Hearn is not controlling here. Hearn is not applicable here because the legislature unambiguously intended that the taking of each firearm be treated as a theft. Multiple thefts of firearms which occur in a single episode are to be considered separate crimes under the statute.

For the reasons expressed, we approve the decision of the district court and disapprove the decisions in Thomas, Drakes, and Joiner to the extent that they conflict with our decision here.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., dissents with an opinion.

ADKINS, Justice,

dissenting.

I dissent.

The charges were made under the same subsection of section 812.014(2)(b) and all the firearms were taken during the same episode. State v. Getz, 485 So.2d 789 (Fla.1983), involved charges based on two different subsections of section 812.014(2).

Under the rule pronounced by the majority, an accused charged with stealing one hundred “hundred dollar bills” could be charged with one hundred grand thefts. If there were some extra change, he would face an additional petit larceny charge for each coin. This result is ridiculous.

       Section 812.014(2)(b) reads as follows:
      (b) It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
      1. Valued at $100 or more, but less than $20,000.
      2. A will, codicil, or other testamentary instrument.
      3. A firearm.

        4. A motor vehicle.
      5. Any member of the genus Bos (cattle) or the genus Equus (horse), or any hybrid of the specified genera.
      6. Any fire extinguisher.
      7. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.
      8. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).
      (Emphasis added.)


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Virgil D. HAWKINS, Respondent.
    No. 64170.
    Supreme Court of Florida.
    May 10, 1984.
    John F. Harkness, Jr., Executive Director, John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Virgil D. Hawkins, in pro per.
   PER CURIAM.

This attorney disciplinary proceeding is before us on complaint of The Florida Bar and report of the referee. Neither party has sought review of the referee’s report. The referee’s report and record were filed with this Court pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of the Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

The referee recommended that respondent be found guilty of violating Disciplinary Rule 1-102(A)(4) of the Code of Professional Responsibility for conduct involving misrepresentation; Disciplinary Rule 1-102(A)(6) for other conduct adversely reflecting on his fitness to practice law; and Disciplinary Rule 3-101(B) for practicing law in violation of regulations of the profession in Florida.

The referee recommended that respondent receive a public reprimand and that respondent be suspended from the practice of law for ten days with automatic reinstatement. In addition, the referee recommended that the costs of the proceedings be charged to respondent. We approve the referee’s findings and recommended discipline. Accordingly, respondent shall receive a public reprimand and a ten-day suspension, effective thirty days from the date of this opinion, giving him time to protect any clients. Respondent shall be automatically reinstated after the ten days. The publishing of this opinion in Southern Reporter will constitute the public reprimand.

The costs of these proceedings in the amount of $905.17 are assessed against the respondent.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, McDonald, EHRLICH and SHAW, JJ., concur.

       The referee specifically noted in his findings of fact that the respondent had no prior disciplinary record. Subsequent to the issuance of the referee's report, this Court found respondent guilty of incompetence in the handling of a criminal case. The Florida Bar v. Hawkins, 444 So.2d 961 (Fla.1984). Respondent received a public reprimand and a two-year period of probation for that offense. This prior disciplinary proceeding does not influence our decision in this case.


author: BASKIN, Judge.

text:
    Vincent GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1672.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1984.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

While on probation for another offense, defendant Green was charged by an information with possession of burglary tools, attempted burglary and criminal mischief. These offenses were also, named in the affidavit charging that Green violated his probation. The court conducted the probation violation hearing first and found that the evidence failed to eliminate his doubt and was insufficient to justify revocation of Green’s probation. The judge explained . that he had held the state to the same high burden in the probation revocation proceeding that it had at trial, that is, to prove the ease beyond a reasonable doubt. Green then sought dismissal of the information upon collateral estoppel grounds. The trial court denied his motion and the case proceeded to jury trial. The jury returned verdicts finding Green guilty of the charged offenses. This appeal ensued. •

The issue to be decided, and which we certify as a question of great public importance, is:

“When, in a probation revocation proceeding, a trial judge finds that the evidence is insufficient to prove the criminal offense asserted as the ground for revocation, is the state, collaterally estopped from trying the defendant for the same criminal offense?”

We answer the question negatively and affirm the trial court’s decision. Although we recognize that People v. Kondo, 51 Ill.App.3d 874, 9 Ill.Dec. 479, 366 N.E.2d 990 (1977) and State v. Bradley, 51 Or.App. 569, 626 P.2d 403 (1981) reach the opposite conclusion, we are persuaded by Florida cases which have already addressed aspects of the issue.

In State v. McCord, 402 So.2d 1147 (Fla.1981), the Supreme Court, noted the rule of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) that_“[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” The court held that collateral estop-pel applies against the state under fifth amendment protections against double jeopardy only if jeopardy attached in the first proceeding. Subsequently, in State v. Jones, 425 So.2d 178 (Fla. 1st DCA 1983), another appellate court reversed a dismissal of charges following a finding that no probation violation had occurred. The appellate court reiterated that jeopardy attaches only when a defendant has been subjected to risks in determining guilt, citing State v. Kling, 335 So.2d 614 (Fla. 2d DCA 1976). The Jones court concluded that defendant Jones had not- been placed in jeopardy in the probation revocation proceeding because the probation revocation hearing was directed to review of an existing sentence and the trial judge was vested with broad discretion in continuing the probation.

There is no question that the law holds the state to a less stringent burden of proof in a probation revocation proceeding than it does in a criminal trial. The probation violation proceeding is actually a deferred sentencing hearing, Delaney v. State, 190 So.2d 578 (Fla.1966); Section 948.06(1), Florida Statutes (1981), and although the issues of fact in both proceedings appear identical, the probation review does not subject a defendant to jeopardy. His guilt and his sentence have already been determined in a prior trial. Whether the defendant is entitled to serve his sentence without undergoing incarceration is the issue; no new jeopardy attaches.

For these reasons we affirm the convictions.

Affirmed.


text:
    Matthew HIRSCHHORN, Appellant, v. SUPERIOR REALTY OF FLORIDA, INC., a Florida corporation, Kevin Bunin, R.W. Florida, Inc., a Florida corporation, Realty World International, Inc., a foreign corporation, Lawrence Bunin and James Cary Jacobson, Appellees.
    No. 83-1235.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 1984.
    Rehearing Denied June 14, 1984.
    Marvin Quittner and Seril L. Grossfeld of Marvin Quittner Law Office, P.A., Plantation, for appellant.
    Ellen Kracoff, Hollywood, for appellee, Lawrence Bunin.
   PER CURIAM.

The plaintiff appeals a final judgment awarding defendant/counterclaimant money damages for abuse of process. He alleges the trial court erred in rendering a final judgment in the case while an appeal from a nonfinal order was pending in this court. We find this point well taken.

The trial court entered a final judgment on May 10, 1983, prior to the disposition of an appeal from a nonfinal order in this case. The appeal was eventually dismissed on July 8, 1983. Pursuant to Rule 9.130, Florida Rules of Appellate Procedure, a lower tribunal may not render a final order disposing of a case pending review of a non-final order.

We, therefore, reverse and remand this matter for further proceedings which may include reinstatement of the final judgment on a date subsequent to July 8, 1983.

REVERSED AND REMANDED.

ANSTEAD, C.J., and BERANEK and WALDEN, JJ., concur.

BY ORDER OF THE COURT:

All points raised in appellant’s brief were considered and found to be without merit except as contained in this court’s opinion of February 1, 1984. The appellant’s motion for rehearing is denied.


author: CAMPBELL, Judge.

text:
    Joseph CLEAVES, Appellant, v. STATE of Florida, Appellee.
    No. 83-1132.
    District Court of Appeal of Florida, Second District.
    March 9, 1984.
    Rehearing Denied May 30, 1984.
    Jerry Hill, Public Defender, Paul C. Helm, Asst. Public Defender, and Gerald O. Johnson, Certified*Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant appeals his revocation of probation and the judgment and sentence imposed on him for his underlying conviction of both grand theft and dealing in stolen property. Appellant’s first point concerns the sufficiency of the evidence to support the violation of his terms of probation. We find there was sufficient evidence to support the trial court and affirm on that ground.

Appellant’s second point argues that section 812.025, Florida Statutes (1981), prevents the state from convicting him for both grand theft and dealing in stolen property where he is charged with both in the same information and both charges involve the same property. We also affirm on this ground.

On May 28, 1982, appellant was charged, with others, in a three-count information. Count I charged them with grand theft of certain property on two separate days. In count III, they were charged with dealing in that property on other days. Appellant pled nolo contendere to all counts on July 8, 1982, adjudication of guilt was withheld and he was placed on probation. On August 13, 1982, he was charged with violating his probation. As a result, on October 26, 1982, he was adjudicated guilty of all underlying charges and his probation extended. On February 9, 1983, he was again charged with violation of probation. His probation was then revoked and he was sentenced on both his previous adjudications of guilt of grand theft and dealing in stolen property. Appellant argues error in that on the face of the information, both charges dealt with the same property and, under Victory v. State, 422 So.2d 67 (Fla. 2d DCA 1982), he cannot be convicted for both offenses because of the prohibition of section 812.025. Victory is factually distinguishable since there was evidence that one scheme or course of conduct, as prohibited by section 812.025, was involved. Here, we have nothing in the record before us to disclose any facts as to the underlying crimes, except that the same property was involved on dates in close proximity with each other. Any inference derived from the fact that the same property was involved on dates in close proximity with each other is not enough to make void the previous adjudications of guilt based on the prior nolo contendere pleas. An appeal from an order revoking probation may only review proceedings subsequent to the order of probation. Deaver v. State, 326 So.2d 222 (Fla. 2d DCA 1976); Burgess v. State, 194 So.2d 698 (Fla. 2d DCA 1967). We are unwilling to create a presumption that section 812.-025 prohibits a conviction of theft and dealing in stolen property simply because the same property is involved on dates in close proximity with each other when there is no other evidence of one scheme or course of conduct before the trial court at the time of the finding of guilt of the offenses. To the extent that Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981) can be construed to hold differently, we are in conflict. Williams v. State, 404 So.2d 1165 (Fla. 2d DCA 1981) involves a finding as to the same course of conduct being involved in the two charges and is, thus, also factually distinguishable.

Affirmed.

OTT, C.J., and BOARDMAN, J., concur.


author: ANSTEAD, Chief Judge.

text:
    Donald George HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1378.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1984.
    Rehearing Denied June 13, 1984.

      Richard L. Jorandby, Public Defender, and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Chief Judge.

This is an appeal from a conviction for conspiracy to traffic in cannabis. The main issue on appeal is the sufficiency of the evidence to prove an agreement between the appellant and his alleged coconspira-tors, the purchasers of the cannabis, in a transaction in which the appellant allegedly acted as a broker. We affirm.

In essence, the proof below relied on by the state to sustain the conviction, reflected that the appellant brought together the purchasers and sellers of the cannabis involved. The sellers turned out to be undercover police officers who arrested appellant shortly after paying him an agreed upon commission. The state’s evidence reflected that although the appellant was not directly involved in the final negotiations between the purchasers and the undercover agents, he was actively involved in procuring the purchasers to buy the cannabis. His actions included testing a sample of the cannabis, frequent contacts to keep the negotiations going, an agreement with the sellers to receive a commission, and collection of that commission. There was also evidence presented that appellant’s alleged eoconspirators stated to the undercover agents that they intended to cut the appellant out of any future deals between the two groups.

At the conclusion of the trial, the jury was instructed:

Before you can find the defendants guilty of criminal conspiracy, the State must prove the following two elements beyond a reasonable doubt:
1. The intent of the defendants was that the offense of trafficking would be committed. In order to carry out the intent, the defendants agreed with each other to cause trafficking to be committed, either by them or one of them, or by some other person.
It is not necessary that the agreement to commit the trafficking be expressed in any particular words, or that words pass between the conspirators.
It is not necessary that the defendant do any act in furtherance of the offense conspired.

In State v. Cristodero, 426 So.2d 977, 980 (Fla. 4th DCA 1982), this court held that direct proof of an agreement between alleged conspirators was not necessary to sustain a conviction:

[D]irect proof of the agreement is not necessary to establish the conspiracy; a jury is free to infer from all of the circumstances involved that there was a common purpose to commit the crime. As the court said in McCain [v. State, 390 So.2d 779 (Fla. 3d DCA 1980) ]:
This court has previously considered the nature of proof necessary in a conspiracy case. As defendant points out, an agreement is the essential element of the crime of conspiracy. However, direct proof of an agreement is not necessary to establish a conspiracy; the jury is free to infer from all the circumstances surrounding and accompanying the act that the common purpose to commit the crime existed. State v. Lamb, 348 So.2d 403 (Fla. 3d DCA 1977). We have also held that it is not necessary to prove a specific conversation in which an agreement was made.

We believe the evidence presented by the state was sufficient to meet the requirements for conviction set out in the instructions and in Cristodero.

The appellant suggests that only those directly involved in the negotiations for purchase and sale may be convicted of conspiracy to violate the trafficking statutes. Alternatively, he suggests that only those who were intended to take possession of the contraband are subject to prosecution for conspiracy. We cannot agree with either proposition. First, while it is true that Cristodero and other conspiracy cases relied on by the state appear to have involved persons directly involved in the negotiations to determine the price and quantity of material purchased, that does not mean that others who participated in the transaction may not also be prosecuted. As the trial court’s instructions correctly indicate, all of those who intentionally enter into an agreement with others “to cause trafficking to be committed, either by them or one of them, or by some other person” may be guilty of conspiracy to traffic. Clearly, a person who successfully brokers an illegal drug transaction by actively procuring the purchasers to the transaction would appear to be subject to prosecution as one who has agreed with others “to cause trafficking to be committed.” Under the evidence presented, the jury could have concluded that appellant played an active role in securing his cocon-spirators’ participation in the deal. Further, as we noted in Cristodero, direct proof of the agreement is not necessary where there is sufficient evidence for the jury to infer that there was an agreement to commit the crime. In this case, the state submitted proof not only of an intent to accomplish the illegal transaction, but proof that the transaction was carried out and that appellant was compensated for procuring his coconspirators to purchase the drugs. We believe this proof is adequate to sustain the jury’s verdict.

We have also considered the other issues raised by appellant and find no merit therein. Accordingly, the judgment of conviction is affirmed.

DOWNEY and GLICKSTEIN, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    William I. SABATES, M.D.; William I. Sabates, M.D., P.A., Petitioners, v. INTERNATIONAL MEDICAL CENTERS, INC., a Health Maintenance Organization and a Florida corporation for profit; Associated Doctors’ Hospitals, Inc., a Florida corporation, d/b/a International Hospital; Miguel Recarey, Jr., Respondents.
    No. 83-1949.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied June 13, 1984.

      Henry T. Courtney, Miami, for petitioners.
    Robert L. Koeppel and Wayne Kaplan, Hayt, Hayt & Landau and Sean L. Fisher, Miami, for respondents.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The petition for writ of certiorari filed by Sabates asserts that the trial court departed from the essential requirements of the law by ordering that (1) Sa-bates’ claim against International Medical Centers, Inc. (IMC) alleging a violation of the state antitrust statute be submitted to arbitration; (2) Sabates' claim against IMC alleging a violation of the civil theft statute be submitted to arbitration; and (3) all proceedings in respect to the claims against the other defendants, International Hospital and Miguel Recarey, Jr., be stayed and abated pending the completion of the arbitration with IMC.

I.

The Alleged Facts

Dr. Sabates, on behalf of his professional association, contracted with IMC to provide ophthalmologic services for IMC patients. An express condition of Sabates’ employment was that he was to meet the qualifications and standards for staff membership at International Hospital. Yet despite IMC’s assurances that Sabates’ application for permanent staff privileges at the hospital would be promptly processed, his temporary privileges were allowed to expire resulting in IMC terminating its contract with Sabates. According to Sabates, none of this was fortuitous, since Miguel Recar-ey, Jr., who, as president of IMC, entered into the contract with Sabates, also controlled the actions of International Hospital as its president.

II.

The Proceedings

The contract between Sabates and IMC provided that “all disputes and claims arising in connection with this Agreement” shall be settled by arbitration. Acknowledging that his claims of breach of contract and fraud against IMC were properly the subject of arbitration, Sabates initiated arbitration proceedings as to these claims. Pertinent here, Sabates’ lawsuit charged International Hospital with interfering with his contract with IMC and charged all three defendants with a violation of the Florida Antitrust Act of 1980, Ch. 542, Fla.Stat., and civil theft in violation of Section 812.014, Florida Statutes (1981). All counts against IMC were ordered submitted to arbitration; the proceedings on all counts against the hospital and Recarey were stayed.

III.

The Antitrust Claim

The well-recognized policy favoring the enforcement of agreements to arbitrate, see, e.g., William Passalacqua Builders, Inc., v. Mayfair House Ass’n, 395 So.2d 1171 (Fla. 4th DCA 1981) (on rehearing); Lapidus v. Arlen Beach Condominium Ass’n, 394 So.2d 1102 (Fla. 3d DCA 1981); Raymond, James & Associates, Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980); Merkle v. Rice Construction Co., 271 So.2d 220 (Fla. 2d DCA), cert. denied, 274 So.2d 234 (Fla.1973), is not without its exceptions. Thus, where legislation clearly mandates that the dispute be resolved in a judicial forum, the policy favoring arbitration will yield. See Shearson, Hammill & Co. v. Vouis, 247 So.2d 733 (Fla. 3d DCA), cert. denied, 253 So.2d 444 (Fla.1971) (where agreement to arbitrate inconsistent with provision of Florida Securities Law preserving the right to bring an action in court, securities law will control); Young v. Oppenheimer & Co., Inc., 434 So.2d 369 (Fla. 3d DCA 1983). See also Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). But see Raymond, James & Associates, Inc. v. Maves, 384 So.2d 716.

Although the Florida Antitrust Act of 1980, unlike the Florida Securities Act, compare § 542.30, Fla.Stat. (1981), with § 517.241(2)-(4), Fla.Stat. (1981), contains no express provision preserving the right to bring an action in the courts, nonetheless, because cases involving antitrust violations are generally considered to be “of a character inappropriate for enforcement by arbitration,” American Safety Equipment Corp. v. J.P. Maguire & Co., 391 F.2d 821, 825 (2d Cir.1968), as will be seen, the policy favoring arbitration gives way to the policy that antitrust claims are better suited to be heard in the courts.

To date, no Florida court has addressed the question of the arbitrability of state antitrust claims and, it follows, there is not as yet any announced state policy that such claims should or should not be the subject of arbitration. There is, however, abundant federal authority dealing with the subject of the arbitrability vel non of comparable federal antitrust claims, to which authority we must give “due consideration and great weight” in construing this state’s antitrust law. § 542.32, Fla.Stat. (1981). See § 542.16, Fla.Stat. (1981) (purpose of Florida Antitrust Act is to complement federal antitrust legislation); Hackett v. Metropolitan General Hosp., 422 So.2d 986 (Fla. 2d DCA 1982).

Under federal law, antitrust claims are held to be not subject to arbitration. See, e.g., Applied Digital Technology, Inc. v. Continental Casualty Co., 576 F.2d 116 (7th Cir.1978); Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974); A. & E. Plastik Pak Co. v. Monsanto Co., 396 F.2d 710 (9th Cir.1968); American Safety Equipment Corp. v. J.P. Maguire & Co., 391 F.2d 821; Hunt v. Mobil Oil Corp., 410 F.Supp. 10 (S.D.N.Y.1975), aff'd, 550 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477 (1977). The oft-cited reasons underlying these uniform holdings are (1) because a wide range of public interests are affected by private antitrust claims, a “claim under the antitrust laws is not merely a private matter,” American Safety Equipment Corp. v. J.P. Maguire & Co., 391 F.2d at 826; (2) the complexity of the issues and extensiveness of the evidence generally involved in antitrust litigation make resolution of these claims more appropriate for the judicial forum, id. at 827; (3) it is unwise to allow commercial arbitrators, “frequently men drawn for their business expertise ... to determine these issues of great public interest,” id.; see Applied Digital Technology, Inc. v. Continental Casualty Co., 576 F.2d 116; Cobb v. Lewis, 488 F.2d 41, 47; and (4) because arbitrators are not bound by rules of lawT and need not give reasons for their rulings, there is no way to insure consistency of interpretation of statutory law or application of arbitration awards. Aimcee Wholesale Corp. v. Tomar Products, Inc., 21 N.Y.2d 621, 289 N.Y.S.2d 968, 237 N.E.2d 223 (1968). Giving, as we must, “due consideration and great weight” to these authorities, and finding their reasoning to apply with equal force to any antitrust claim brought under our state law, we conclude that Sabates’ antitrust claim under the Florida Statute is not a proper subject for arbitration and that such claim must be judicially determined.

IV.

The Civil Theft Statute

Other, but less uniform, exceptions to the policy favoring the enforcement of agreements to arbitrate arise where public policy is said to require that a matter in issue be determined by a court. Thus, it has been held that only a court should be permitted to' award punitive damages, Garrity v. Lyle Stuart, Inc., 40 N.Y.2d 354, 386 N.Y.S.2d 831, 353 N.E.2d 793 (1976); determine whether an otherwise ar-bitrable agreement is usurious, compare Durst v. Abrash, 22 A.D.2d 39, 44, 253 N.Y.S.2d 351, 356 (App.Div.1964), aff'd, 17 N.Y.2d 445, 266 N.Y.S.2d 806, 213 N.E.2d 887 (1965), with Rosenblum v. Steiner, 43 N.Y.2d 896, 898, 403 N.Y.S.2d 716, 718, 374 N.E.2d 610, 611 (1978); or determine rights under an agreement calling for arbitration where distribution of an estate is involved, In re Will of Jacobovitz, 58 Misc.2d 330, 295 N.Y.S.2d 527 (Surrogate Ct.1968). Similarly, civil rights claims, Wertheim & Co. v. Halpert, 48 N.Y.2d 681, 421 N.Y.S.2d 876, 877, 397 N.E.2d 386 (1979), child custody cases, Nestel v. Nestel, 38 A.D.2d 942, 331 N.Y.S.2d 241 (App.Div.1972), and criminal violations, Application of Goldmar Hotel Corp., 283 A.D. 935, 130 N.Y.S.2d 615 (App.Div.1954); 16 Williston on Contracts § 1918 (3d ed. 1976), have been held to fall outside the scope of the arbitration process. See generally Sprinzen v. Nomberg, 46 N.Y.2d 623, 415 N.Y.S.2d 974, 389 N.E.2d 456 (1979). It must be noted, however, that:

“the preservation of the arbitration process and the policy of allowing parties to choose a non-judicial forum, embedded in freedom to contract principles, must not be disturbed by courts, acting under the guise of public policy, wishing to decide the dispute on its merits, for arguably every controversy has at its core some issue requiring the application, or weighing, of policy considerations.” Sprinzen v. Nomberg, 46 N.Y.2d at 630, 415 N.Y. S.2d at 977, 389 N.E.2d at 459.

It is clear, of course, that the civil theft statute, remedial in its purpose and expansive in its coverage, embodies public policy. However, in contrast to the Antitrust Act, the effect of a violation of the civil theft statute upon the public is, at most, incidental; the issue of what constitutes a violation of the civil theft statute is neither complex nor beyond the ken of arbitrators; and the statute itself contains no indication that the Legislature intended such claims to be within the exclusive province of the courts or, as in the case of the Antitrust Act, that it be interpreted in accordance with an existing body of case law which reserved such matter for the courts. Thus, even though the civil theft statute has at its core a criminal violation and provides for the imposition of treble damages where a violation is found, those factors are hardly sufficient to overcome the parties’ agreement to arbitrate or to bring this particular statutory violation within that narrow class of cases that have been excepted from arbitration on public policy grounds. Compare Mendelsohn v. A & D Catering Corp., 119 Misc.2d 581, 464 N.Y.S.2d 331 (Sup.Ct.1983); National Equipment Rental Ltd. v. American Pecco Corporation, 35 A.D.2d 132, 314 N.Y.S.2d 838 (App.Div.1970), with Kingswood Management Corp. v. Salzman, 272 A.D. 328, 70 N.Y.S.2d 692 (App.Div.1947); In re Kramer & Uchitelle, Inc., 288 N.Y. 467, 43 N.E.2d 493 (1942); Application of Goldmar Hotel Corp., 283 A.D. 935, 130 N.Y.S.2d 615. We conclude, therefore, that Sa-bates’ civil theft claim is properly the subject of arbitration.

V.

The Stay of Judicial Proceedings

Section 682.03(3), Florida Statutes (1981), provides that

“Any action or proceeding involving an issue subject to arbitration under this law shall be stayed if an order for arbitration or an application therefor has been made under this section, or, if the issue is severable, the stay may be with respect thereto only_(emphasis supplied).

The issue subject to arbitration between Sabates and IMC is essentially whether IMC breached its contract with Sabates and whether that breach amounted to a violation of the civil theft statute. The question now before us is how, if at all, the resolution of this issue in arbitration will affect the interference with a contractual relationship claim against International Hospital, the civil theft claim against International Hospital and Recarey, and the antitrust claim against IMC, International Hospital and Recarey. If the resolution of the arbi-trable claims against IMC will obviate the need for further litigation of the claims pending in court, then it is clear that these latter claims involve an issue subject to arbitration; but if the resolution of the arbitrable claims will have no effect upon the claims pending in court, then the issue in arbitration is severable, and a stay of the claims pending in court is not required. See Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 429 So.2d 1212 (Fla. 3d DCA 1983).

We have little difficulty concluding that the claim against International Hospital for interference is totally independent of the claims against IMC in arbitration. Whether or not IMC is found to have breached its contract with Sabates will in no way relieve the hospital of its potential liability for interfering with such contract. See United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668 (Fla.1979); Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1976); Allen v. Leybourne, 190 So.2d 825 (Fla. 3d DCA 1966). By the same reasoning, we arrive at a different result in respect to the civil theft claims against International Hospital and Recarey. If it is found in arbitration that there has been no wrongful appropriation of any property right of Sabates and no violation of the civil theft statute (a result which must follow from a finding that there was no breach of contract, and a result which may follow notwithstanding a finding that the contract was breached), there can be no claim under the civil theft statute against the hospital and Recarey which remains to be adjudicated. Therefore, the civil theft claim against these two defendants was properly stayed awaiting the outcome of arbitration.

Finally, we conclude that the antitrust claims will necessarily survive any decision in arbitration and are therefore severable from the arbitrable issues. Implicit in this conclusion is that the antitrust claims are not dependent upon the contract claims, so as to require that the antitrust claims be stayed pending the outcome of arbitration. Cf. Sibley v. Tandy Corp., 543 F.2d 540 (5th Cir.1976) (where the very existence of the plaintiffs federal securities act claim that defendant’s oral representations fraudulently induced the plaintiff to enter into the written contract is predicated upon the plaintiffs claims under the written contract being decided adversely to the plaintiff in arbitration, securities act claim is dependent and must be stayed pending outcome of arbitration). Absent this dependency, there would appear to be no justification for staying the progress in court of the antitrust claims and no impediment to these claims, along with the claim against International Hospital for interference with contractual relations, proceeding to trial simultaneously with the arbitration. See Sam Reisfeld & Son Import Co. v. S.A. Eteco, 530 F.2d 679 (5th Cir.1976).

Accordingly, the petition for writ of cer-tiorari is granted in part and denied in part. The order under review insofar as it referred the antitrust claim against IMC to arbitration is quashed, and the stay of proceedings on that claim and the claim for interference with contractual relations is vacated. In all other respects, the order shall remain in full force and effect.

Certiorari is granted in part; denied in part.

      . Dr. Sabates and William I. Sabates, P.A., his professional association and co-petitioner, will be referred to as Sabates.

      . The respondents contend that although certio-rari is the proper vehicle to challenge a lower court order denying a motion to compel arbitration, an order granting a motion to compel arbitration, being non-final, must await review Until an appeal is taken from an order under Section 682.20(1)(c), Florida Statutes (1981), confirming an arbitration award. Plainly, orders compelling arbitration and staying court proceedings pending the outcome of arbitration are reviewable by certiorari. Hansen v. Dean Witter Reynolds, Inc., 408 So.2d 658 (Fla. 3d DCA 1981), pet. for rev. denied, 417 So.2d 328 (Fla.1982); see Laquer v. Smith, Barney, Harris, Upham & Co., 446 So.2d 1119 (Fla. 3d DCA 1984); Walter L. Keller & Associates, P.A. v. Health Management Foundation, 438 So.2d 1076 (Fla. 2d DCA 1983); Marthame Sanders & Co. v. 400 West Madison Corp., 401 So.2d 1145 (Fla. 4th DCA 1981); King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977).

      . Sabates' amended complaint contained other counts which are not the subject of his petition for writ of certiorari.

      . The broad definition of “trade or commerce” in the Florida Antitrust Act, § 542.17(4), Fla. Stat. (1981), that is, “any economic activity of any type whatsoever involving any commodity or service whatsoever," has been held to encompass a restraint upon the practice of medicine of the type here alleged. See Hackett v. Metropolitan General Hosp., 422 So.2d 986. We think it obvious that any unlawful restraint upon the delivery of medical services is not merely a private matter and that, therefore, the rationale of the federal cases is applicable to the present case. Cf. Greenleaf Engineering & Construction Co. v. Teradyne, Inc., 15 Mass.App.Ct. 571, 447 N.E.2d 9 (App.Ct.1983) (refusing to apply federal decisions holding antitrust claims non-arbi-trable where allegations of unfair and deceptive trade practices in violation of state law were primarily related to private claim).

      . The question of whether a cause of action for civil theft lies under the circumstances of this case, even if the contract is found to have been breached, is not before us and remains to be determined.

      . Nor are the antitrust claims so inextricably intertwined with the breach of contract issues in arbitration as to make it likely that the arbitrators, in deciding the breach of contract issue, would inevitably wander into "the thicket of complex antitrust issues.” See Hunt v. Mobil Oil Corp., 410 F.Supp. 10, 26 (S.D.N.Y.1975), aff'd, 550 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984, 98 S.Ct. 608, 54 L.Ed.2d 477 (1977). In such a case, where the antitrust issues are said to permeate the arbitrable issues, courts have stayed arbitration and proceeded to determine the antitrust issues, see Hunt v. Mobil Oil Corp., 444 F.Supp. 68 (S.D.N.Y.1977); Applied Digital Technology, Inc., 576 F.2d 116; or denied arbitration even of the arbitrable claims “in order to protect the jurisdiction of the federal court and avoid any possible preclusive effect” of the arbitrators’ decision, see Belke v. Merrill, Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1026 (11th Cir.1982); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169 (11th Cir.1982); but see Dickinson v. Heinold Securities, Inc., 661 F.2d 638 (7th Cir.1981) (permeation doctrine merely authorizes court to control the order of adjudications, but does not authorize court to adjudicate arbitrable claims). The question before us, however, is the propriety of the trial court’s stay of the judicial proceedings, not of arbitration.


text:
    Robert BRUCE, Petitioner, v. The FLORIDA PAROLE AND PROBATION COMMISSION and Louie L. Wainwright as Secretary, Department of Corrections, State of Florida, Respondents.
    No. 83-878.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.
    Doris E. Jenkins, Asst. General Counsel, Fla. Parole and Probation Com’n, Tallahassee, for respondents.
    Before HENDRY, NESBITT and PEARSON, DANIEL S., JJ.
   PER CURIAM.

The Florida Parole and Probation Commission originally established a presumptive parole release date (PPRD) for the petitioner of December 29, 1981. Utilizing section 947.18, Florida Statutes (1981), the Commission later extended the PPRD to January 3, 1995. Bruce’s request for administrative review was denied and the Commission readhered to its extended date. Being incarcerated in Dade County and claiming a right to immediate release, Bruce filed his petition for habeas corpus with this court, Jenrette v. Wainwright, 410 So.2d 575 (Fla. 3d DCA 1982), review denied, 419 So.2d 1201 (Fla.1982), alleging that the Commission improperly extended his presumptive date and refused to grant him an effective release date.

Some time after the petition was filed, the Commission reinstated Bruce’s original PPRD. Thus, the only issue which remains for our consideration is whether the Commission has improperly refused to convert Bruce’s PPRD to an effective parole release date (EPRD). Its refusal to do so was based upon section 947.18, Florida Statutes (1981). This statute has been interpreted by the First District as granting the Commission discretion to refuse to set an effective date, Jackson v. Florida Parole and Probation Commission, 424 So.2d 930 (Fla. 1st DCA), appeal after remand, 429 So.2d 1306 (Fla. 1st DCA 1983); Gobie v. Florida Parole and Probation Commission, 416 So.2d 838 (Fla. 1st DCA), pet. for rev. denied sub nom. Logan v. Florida Parole and Probation Commission, 424 So.2d 762 (Fla.1982), but such discretion is not unlimited. Rather,

the limited discretion remaining with the Commission under the provisions of section 947.18 must be considered in pari materia with other provisions of the Objective Parole Guidelines Act of 1978, permitting the Commission to change a PPRD only upon a showing of new information, institutional conduct or extraordinary circumstances.

Paige v. Florida Parole and Probation Commission, 434 So.2d 7, 8 (Fla. 1st DCA 1983).

In refusing to set an EPRD, the Commission in the instant case, as in Jackson and Paige, has relied on the same information it had before it when it originally established the PPRD and when it later revised the date. Because the Commission has done so, we conclude that it has abused its discretion.

Accordingly, the order refusing to convert the petitioner’s PPRD into an EPRD is vacated and the Commission is directed to discharge the petitioner subject to the standard provisions of parole in such cases.