author: BOWEN, Presiding Judge.

text:
    Bill DELEVIE v. STATE.
    4 Div. 193.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.

      John M. Gruenewald, Dothan and Thomas E. Haigh, Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Bill Delevie was indicted and convicted for theft of property in the first degree. He was sentenced as an habitual offender to fifteen years’ imprisonment. Three issues are argued on appeal.

I

Delevie contends that the trial judge erred in denying his motion for a continuance because of the absence of certain key witnesses who had been subpoenaed by him and who were “critical” to his defense.

On the day his case was tried, a jury was selected. Only then did Delevie move to dismiss because he had been denied a speedy trial. Upon the denial of that motion he requested a continuance.

The record shows that the “case was supposed to be resolved yesterday” on a guilty plea but the State had to withdraw the offer when it learned that Delevie had prior felony convictions. Apparently most, if not all, of Delevié’s witnesses were present at that time, and defense counsel failed to inform his witnesses to return the next day. Speaking “in general” and not about Delevie “in this case necessarily”, the trial judge stated, “I think there’s a lot of times that these witnesses come down here and nobody says a word to them and they don’t know what’s going on one way or the other and that there is a lack of communication by the State with their witnesses and there is a lack of communication by the defendant with their witnesses.”

The Attorney General argues that after defense counsel learned that the case would be tried he made no effort to inform the absent witnesses that they would be needed for trial the next day. There was no request for instanter subpoenas or for attachments on the original subpoenas.

The application for the continuance should have been made before the jury was impaneled and sworn. Hoppins v. State, 337 So.2d 134, 138 (Ala.Cr.App.1976). Where the ground for continuance was known in advance of such time, the application comes too late when made after the case is called for trial, Ritz v. City of Birmingham, 22 Ala.App. 653, 119 So. 596 (1929); on the morning of trial, Lamberth v. State, 48 Ala.App. 134, 137-38, 262 So.2d 622 (1972); or after the jury was selected, Hoppins, 337 So.2d at 138. Defense counsel did not request the trial judge to issue any attachment for any absent witness, nor does it appear from the record that counsel made any attempt to secure the presence of the absent witnesses. “(T)he absence of a witness from the trial, ... is no ground for continuance unless accused has exercised due diligence to obtain the attendance of the witness ... or shows a valid excuse for its lack.” 22A C.J.S. Criminal Law, Section 502(a) (1961).

A showing was made that Jerry Dickerson and Challis Price, the absent defense witnesses, would testify that a “man on the gate was pocketing the funds at the track” and that Ed Beard, Délevie’s partner, was the comptroller of the company, and handled the money and the checks. Their testimony was, for the most part, cumulative and corroborative of that given by Delevie. We recognize that some “corroborative evidence may be so clearly material and its absence so likely to work an injury to the rights of accused that the denial of a continuance to obtain such testimony will be regarded as erroneous”, just as it would be error to refuse a continuance where the evidence is important and material, notwithstanding the fact that it is cumulative. 22A C.J.S. Criminal Law, Section 489(a). However, here we apply the general rule that it is not error to refuse a continuance when the evidence or testimony sought to be introduced by the absent witnesses is merely cumulative or would simply corroborate that of a witness present and able to testify. Segers v. State, 283 Ala. 694, 220 So.2d 882 (1969).

Here, it also appears that the trial court had no subpoena power over Challis Price, although she had been personally served in Donaldsonville, Georgia.

The decision to grant or deny a continuance rests within the trial court’s discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964); United States v. Jimenez-Diaz, 659 F.2d 562, 567 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982). An appellate court will not disturb a trial judge’s ruling unless the defendant shows a clear abuse of that discretion, Ungar, supra (unless decision so arbitrary and capricious that it is clear abuse of discretion), United States v. Long, 674 F.2d 848, 855 (11th Cir.1982), that results in serious prejudice. Jimenez-Diaz, supra. “Unless we conclude that the ruling of the district (trial) court was an unreasonable resolution of the various factors confronting it, we must uphold the lower court’s ruling, even though it may be considered a harsh one.” United States v. Barrentine, 591 F.2d 1069, 1075 (5th Cir.1979). Here, Delevie has shown no clear abuse of discretion. Even though our finding is not based on the doctrine of harmless error, it is also our conclusion, after considering Delevie’s criminal history of writing worthless checks, that the presence or absence of the absent witness would have had no effect upon the outcome of the trial.

II

Delevie contends that the evidence does not present a prima facie ease and is insufficient to support the verdict. We disagree.

The gist of the greater portion of Delev-ie’s argument is summarized in the following statement wherein he contends “that either State’s witness Ross Jones’ testimony was perjured, or that he simply could not remember that the Defendant had told him to hold the check because it would not be good until after the motorcycle race.” Delevie maintains that there was no showing that he obtained any property by deception.

The State proved that on September 25, 1982, Delevie gave Ross Jones a check for $1,435.70 in exchange for tee-shirts and caps. Delevie purchased the shirts and caps to sell at a motorcycle race track he was developing. He wrote the check from a “binder-type business checkbook.”

This check was drawn- on an account which Delevie and his partner, Ed Beard, opened on July 6, 1982, with a deposit of $100. On July 8th, $103.55 was deposited. No further deposits were made, the total of all the funds ever deposited being $203.55. From August until the account was closed, the balance was $2.20. The account was closed by the bank in October of 1982 after checks totaling $634.95 were written on the account in September. The bank refused payment on the checks for insufficient funds, charged the account $2.20 for overdraft charges, and closed the account with a zero balance. The check which is the subject of the instant conviction was received by the bank after the account had been closed.

Ross Jones testified that Delevie did not ask him to hold the check or tell him that the check would not be good until after the race. When Jones asked Delevie about the check, after payment had been refused, Delevie indicated he would make the check good but never did. Jones talked to Delev-ie three or four times about the bad check.

Delevie testified in his own behalf, maintaining that he told Jones to hold the check until after the race. He denied any deceit or criminal intent in obtaining the property.

Under the facts of this case, the question of whether or not Delevie knowingly obtained, by deception, control over merchandise, as the indictment charged, was an issue for the jury. The term “deception” includes failing to correct a false impression which the accused is under a duty to correct or which false impression he previously has created or. confirmed. Alabama Code Section 13A-8-l(l) (1975). The issuance of a check drawn on a closed account, even without further representation by the drawer to the recipient of the check that it is drawn on an existing account, when done with the intent to obtain and deprive another person of money or property, is a “deception” sufficient to constitute a criminal offense under a theft by deception statute. People v. Attebury, 196 Colo. 509, 587 P.2d 281, 284 (1978). In a prosecution under Alabama’s Worthless Check Act, “(a) showing at the trial that the check had been presented, and that payment had been refused for either of the statutory reasons, is prima facie evidence of the drawer’s intent to defraud with knowledge of such deficiency.” Tolbert v. State, 294 Ala. 738, 742, 321 So.2d 227 (1975). Intent is an inference which must be drawn by the jury. “That intent must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction and the presence or absence of excusing or palliating facts or circumstances.” Doss v. State, 23 Ala.App. 168, 180, 123 So. 237 (1929) (Samford, J., concurring in result).

Here, the State presented a prima facie case of first degree theft. All the facts and circumstances presented issues which only the jury could decide.

Ill

The State was properly permitted to prove that Delevie had issued other worthless checks in proving criminal intent.

Delevie testified in his own behalf and denied any intent to deceive Jones.

On cross examination, the State showed that Delevie had been convicted of twenty-one cases of “negotiating worthless negotiable instruments” within the past two years and had been sentenced to seven and one-half years’ imprisonment.

On further cross examination, the prosecutor was allowed to introduce four checks written on September 25th and 26th — the same weekend on which the check in this case was drawn — which were returned for insufficient funds. The checks totaled around $2500.

These other checks were properly admitted. “The crime of false pretense has the requisite intent to defraud as its primary element. Therefore, it is generally admissible to show other similar criminal acts to prove this intent and such constitutes one of the major exceptions to the general rule that one cannot introduce pri- or criminal acts.” C. Gamble, McElroy’s Alabama Evidence, Section 70.01(10) (3rd Ed. 1977). This evidence of other offenses was also admissible to prove that the now-charged crime and the other offenses were committed in keeping with or pursuant to a single plan, design, scheme or system. McElroy’s, Section 69.01(6).

After Delevie’s appointed counsel, John -M. Gruenewald, had filed his brief raising the three issues we have just addressed, Delevie, who had been declared indigent, hired his own attorney, Thomas E. Haigh, who was given additional time to file his brief. The only issue raised in Haigh’s brief was that Gruenewald failed to provide constitutionally effective assistance of counsel. Attorney Gruenewald has earned a reputation before this Court as an aggressive and effective advocate, zealously guarding the rights of his clients.

Haigh’s brief contains Delevie’s affidavit. Although it is not a part of the record, that verified statement contains serious and libelous allegations against appointed counsel. Delevie also asserts that appointed counsel was not present when he was arraigned.

The allegations in Haigh’s brief are those commonly seen in a petition for writ of error eoram nobis usually filed years after the conviction and long after memories have dimmed and records lost. They represent accusations which appointed counsel has not had the opportunity to answer. Because of the nature of those allegations and in an attempt to settle this issue as soon as possible, we remand this cause to the circuit court with directions that an evidentiary hearing be held on the issue of the competency of appointed counsel. The trial court is also directed to make a determination of Delevie’s indigency. The trial court shall make written findings of fact on both these issues and forward those findings along with a transcript of the proceedings to this Court for review.

REMANDED WITH DIRECTIONS.

All Judges concur.


source: Caselaw Access Project

author: PATTERSON, Judge.

license: Public Domain

text:
    Daryl JOINER v. STATE.
    1 Div. 791.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    John P. Furman, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant Daryl Joiner was convicted of third degree burglary and placed on probation. On December 27, 1983, he was arrested and charged with theft in the second degree and unlawfully entering a motor vehicle.

On February 3, 1984, a motion to revoke his probation was filed by the State. A hearing was held on February 3, 1984, at the conclusion of which, the motion to revoke probation was granted. A transcript of that hearing is before this court.

Only one issue is raised on appeal. Appellant claims that his right to minimal due process was denied when the trial court “failed to file a written statement or finding of facts setting out the evidence relied upon and the reasons for revoking parole”. In the case of Armstrong v. State, 294 Ala.100, 312 So.2d 620 (1975), the Alabama Supreme Court, adopting the requirements found in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), set out the minimum due process standards that must be met before probation can be revoked.

Requirement No. 8 mandates that the probationer be accorded “a written statement by the judge as to the evidence relied on and reasons for revoking probation”.

We cannot agree with the State that a transcript of the testimony given in a revocation hearing satisfies this requirement. This court has stated that the lower court’s written statement enumerating the evidence relied on and the reasons for parole revocation “relates to a matter of substance and not mere form”. Carter v. State, 389 So.2d 601 (Ala.Crim.App.1980). We thus find that due process requires that the probationer be informed of what evidence presented at his hearing has been relied on by the trial court in revoking probation. See Taylor v. State, 405 So.2d 55 (Ala.Crim.App.1981); Austin v. State, 375 So.2d 1295 (Ala.Crim.App.1979).

As we have said before, “In revoking probation a trial judge must make a written statement as to the evidence relied on and the reasons for revoking probation.” (Emphasis in original) Taylor, supra.

We conclude that the judgment of the lower court must be reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    George Wayne WILLIAMS v. STATE.
    3 Div. 2.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.

      B.F. Lovelace, Brewton, for appellant. Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant filed with the Clerk of the Circuit Court of Escambia County a pro se petition for habeas corpus in which he alleged that he was “in prison at Holman Penitentiary in Escambia County ... serving a life sentence in Holman as a result of his conviction in Montgomery County, Alabama for Robbery II,” that the State invoked the Habitual Felony Offenders Act by reason of three prior felony convictions, cases No. 9885 and 9871-9872, in which this appellant had pleaded guilty at arraignment “without an attorney present at the time of plea May 24, 1974. ... the way the habitual offender status was applied is unconstitutional.” It is further averred in the petition as follows:

“Petitioner states he was with ineffective assistance of counsel. The lawyer refused to do anything but plea the case. He told petitioner to plea guilty to life or you will get life without parole if you don’t plea guilty. So I was force to plea guilty, for like I stated to the judge T am pleading guilty because I have no choice’ and he didn’t check into my prior convictions.”

In the motion of respondent in the trial court to dismiss the habeas corpus petition, there are nine separate grounds. In ground two is the allegation:

“For that it affirmatively appears from the petition that petitioner entered a plea of guilty thereby admitting all facts charged, and a plea of guilty is more than a voluntary confession made in open court, since it serves as a stipulation that no proof by the prosecution need be advanced except that witnesses be examined to determine the character of the offense and it supplies both evidence and verdict ending the controversy.”

Such ground, as well as some of the other grounds of the motion to dismiss, lacks desirable clarity, which to some extent is accountable for by reason of the vagueness and lack of clarity in the petition. In our opinion, in construing the petition in its most favorable light to petitioner, it barely, but possibly, sets forth facts that if proven to be true would constitute a valid ground for some form of post-conviction relief, but not for relief via habeas corpus. To any suggestion that the petition could have been amended so as to provide a basis for relief different from habeas corpus relief, the answer is that the facts averred show that the action for such other relief would not have been judicially cognizable by the trial court in the case now under consideration but only by the Circuit Court of Montgomery County, which rendered the judgment from which petitioner-appellant seeks to obtain relief.

The trial court in the instant case was correct in dismissing the petition for habeas corpus, by which appellant sought to obtain relief from a judgment of the Montgomery County Circuit Court, which unquestionably had jurisdiction of the parties and subject matter of the judgment. A writ of habeas corpus does not furnish a remedy for correcting errors or irregularities in the judgment of a court if and when jurisdiction of the court to render the judgment is without question. Woodard v. State, Ala.Cr.App., 426 So.2d 524, 525 (1983), and numerous cases cited therein.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TYSON, Judge. TAYLOR, Judge,

text:
    Perry E. HELVESTON v. STATE of Alabama.
    3 Div. 27.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Perry E. Helveston, pro se.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Perry E. Helveston appeals from the summary denial of his pro se petition for writ of habeas corpus challenging the constitutionality of a disciplinary proceeding which resulted in 90 days in the segregation unit and loss of store, visiting and phone privileges for 90 days. In the habe-as corpus petition, Helveston specifically asserted that the institutional officers took disciplinary action against him without providing him with a proper constitutional statement as to the reasons for their actions and the evidence upon which they relied. The habeas corpus petition was denied based upon the State’s motion which simply attached a summary statement of the action of the disciplinary court to same. This statement simply stated “As per computer, inmate Helveston escaped from Houston County Annex on 1-2-82.” The inmate had entered a plea of not guilty and the report stated “guilty per escape report.”

I

This court in Rice v. State [Ms. 5 Div. 885, June 12, 1984] (Ala.Crim.App.1984), speaking through Judge Patterson, noted:

“The correct method for challenging the decision of a state disciplinary board is by petitioning the appropriate circuit court for a writ of habeas corpus. Williams v. Davis, 386 So.2d 415 (Ala.1980); Washington v. State, 405 So.2d 62 (Ala.Crim.App.1981); Fielding v. State, 409 So.2d 964 (Ala.Crim.App.1981), cert. denied, 409 So.2d 964 (Ala.1982). Habeas corpus is the appropriate remedy in this case.”

II

Further, this court, again speaking through Judge Patterson, in Spooner v. State, 451 So.2d 429 (Ala.Crim.App.1984), stated:

“In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the Supreme Court held that due process requires that an inmate involved in a prison disciplinary proceeding must be provided with a written statement by the factfind-ers as to the evidence relied upon and the reasons for the disciplinary action taken. Id. at 565 [94 S.Ct. at 2979], The written statement protects the inmate from possible collateral consequences based on a misunderstanding of the nature of the original proceeding and from arbitrary action by prison officials and enables him to ‘propound his own cause’ subsequent to the hearing. Id. at 565 [94 S.Ct. at 2979].”

III

In the case at bar, all that was before the trial court was a summary statement with reference to the action of the disciplinary court. This, as is stated above, simply reiterated the result of a computer printout.

No witnesses were presented according to this report. Moreover, the inmate complains that he was removed from the proceeding without having an opportunity to be heard or to hear the statements of the witnesses against him. He states that he was simply orally informed as to the results some time later.

In light of the allegations herein made and the failure to furnish a proper statement showing a written statement by the factfinders as to the evidence relied upon and their reasons given in the disciplinary hearing, this court has no choice but to reverse and remand this cause for proper hearing consistent with the requirements of due process of law. Counsel should be appointed to assist the petitioner and the court should set this cause for hearing at an appropriate date and inquire into the merits of the petitioner’s allegations.

This cause is hereby reversed and remanded to circuit court with instructions that a hearing be held on the merits of the petitioner's allegations.

The initial order denying the habeas corpus petition is hereby set aside and vacated.

REVERSED AND REMANDED.

BOWEN, P.J., and HARRIS and PATTERSON, JJ., concur.

TAYLOR, J., concurs specially with opinion.

TAYLOR, Judge,

concurring specially.

I concur. This disciplinary proceeding did not result in the loss of good time. It should be noted that we are here accepting a petition for a writ of habeas corpus challenging disciplinary proceedings which do not involve the loss of good time and which do not affect the liberty status of the inmate.


author: TYSON, Judge.

text:
    Dean THOMPSON v. STATE.
    6 Div. 486.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
    Darrell Reeves, Columbus, Miss., for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Dean Thompson was indicted for unlawfully possessing marijuana contrary to the provisions of the Alabama Uniform Controlled Substances Act, in violation of § 20-2-70, Code of Alabama 1975. The jury found the appellant “guilty as charged in the indictment” and the trial court sentenced him to fifteen years’ imprisonment.

The appellant does not challenge the weight and sufficiency of the evidence, therefore, all that is necessary is a succinct statement of the facts.

Earl Walden testified that he wás employed as an investigator for the Alabama Bureau of Investigation. He stated that he conducted an investigation pursuant to information he received, such information being that appellant had several large marijuana fields located around his residence. He stated that on August 9, 1982, four agents employed by the Alabama Bureau of Investigation, with the use of a helicopter, found three marijuana fields behind and around appellant’s residence. Walden stated that he, Sheriff Norris, and Guy Metcalf arrived at the appellant’s residence shortly after the helicopter landed. He stated that they found well traveled trails leading to the three marijuana fields. He further stated that all three fields were irrigated and that one of these fields was irrigated by a garden hose connected to a spicket supplied by a well in the appellant’s front yard. He stated that one field was located about 150 yards behind the appellant’s house. He said that across the road from the appellant’s house there was a barn. The second field was about 175 yards behind the barn and the third field was 200 yards beyond the second field.

Investigator Walden testified that he talked with the appellant at the Fayette County Jail and advised him of his Miranda rights. He stated that the appellant told him that he lived in the house which had the marijuana field behind it, but that he did not own the land. He stated that the appellant told him he did own one acre of land on which the barn was located. He stated that the appellant was aware that marijuana was found in the loft of his barn, and that the appellant stated this marijuana belonged to several people who were storing furniture in the loft. He further stated the appellant told him that he was aware that marijuana was being dried in his barn and that marijuana was being grown behind his house and barn. Walden further testified that he collected samples of the marijuana growing behind the appellant’s house and took it to the State lab for analysis.

Melinda Long testified that she was employed as a drug analyst for the Department of Forensic Sciences, and that she received samples from Investigator Walden on August 16, 1982. She stated that these samples were identified as having come from the property of the appellant. She stated that, from her analysis of these samples, she determined' it to be marijuana. She further stated that Billy Wilkins picked up the samples on January 4, 1983.

William Wilkins testified that he was a Tuscaloosa City Police Officer and that in January of 1983, he received several packages of evidence from Melinda Long at the State Toxicology Lab. He stated that this evidence was locked in a vault until the morning of trial when he gave it to Earl Walden.

Harry Montgomery testified that he was a Narcotics Investigator for the Tuscaloosa County Sheriffs Office. He stated that on August 9, 1982, he flew over the appellant’s residence in a helicopter and, from the air, he observed marijuana fields. He stated that he saw a white male leave the residence in a white van. He stated that the helicopter landed and he examined the premises and found the doors of the house “wide open.” He stated that two folding chairs were sitting at the end of the field closest to the appellant’s house, and that a “hose pipe” led from the field to a water pump beside the residence.

Arnold Strickland testified that he was employed by the Fayette County Sheriff’s Department. He stated that in August of 1982, he was called to the appellant’s residence. He stated that he knew this was the appellant’s residence, because he had served papers on the appellant on a previous occasion. He stated that, when he arrived at the residence, he got on a tractor and helped cut down the marijuana growing in the fields. He further stated that after the appellant was indicted, he attempted to locate the appellant, but he could not find him.

Hubert Norris testified that he was the Fayette County Sheriff, and in his capacity as Sheriff he investigated the growing of marijuana on the appellant’s property. He further stated that, after the appellant was indicted, his office attempted to serve the appellant, but could not locate him.

Earl Walden was recalled as a witness and further testified that he found a small “farm-all type” tractor, with a trailer attached to it, parked in front of the appellant’s house. He stated that the two fields behind the barn had tracks in them which appeared to have been made by that tractor. He stated that it was his belief that the tracks were made by this tractor, because the trail leading to the fields was too narrow for other tractors to travel and, further, he said that he doubted there was another tractor that size in that area.

The appellant offered no evidence or testimony in his defense.

I

The appellant contends that the trial court erred in denying his motion to quash the indictment. He specifically argues that the indictment returned against him was fatally defective because it did not charge that he knowingly possessed marijuana.

It should be noted initially that the statute under which the appellant was indicted for violating § 20-2-70, Code of Alabama, does not contain the word “knowingly.” This court has held on numerous occasions that an indictment which tracks the language of the pertinent statute, and an indictment which charges the statutory offense in the words of the statute, is generally valid. Wilder v. State, 401 So.2d 151 (Ala.Crim.App.), cert. denied, 401 So.2d 167 (Ala.1981), cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981); Matthews v. State, 401 So.2d 241 (Ala.Crim.App.), cert. denied, 401 So.2d 248 (Ala.1981).

In this case the indictment charged as follows:

“The Grand Jury of said County charge that before the finding of this indictment, DEAN THOMPSON whose name to the Grand Jury is otherwise unknown, did on to-wit: August 9, 1982, while at or near his residence in the Oak Ridge Area in Fayette County, Alabama, unlawfully possess marijuana, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Section 20-2-70 of the Code of Ala-bama_” (R. 3)

This court has specifically held in previous cases that an indictment in the form set out above is adequate and sufficient to apprise the defendant of the offense charged. Furthermore, such an indictment is sufficient to apprise the defendant of what he is called upon to defend himself against. Brown v. State, 392 So.2d 1248 (Ala.Crim.App.1980), writ denied, 392 So.2d 1266 (Ala.1981); Smith v. State, 435 So.2d 185 (Ala.Crim.App.1983). See also, Brock v. State, 54 Ala.App. 310, 307 So.2d 707 (1975); Thomas v. State, 342 So.2d 405 (Ala.Crim.App.1976), writ denied, 342 So.2d 407 (Ala.1977); Butts v. State, 346 So.2d 497 (Ala.Crim.App.), cert. denied, 346 So.2d 500 (Ala.1977).

Pursuant to the above cited authority, we hold that the indictment in this case was valid. Moreover, the evidence in this case was sufficient to support the appellant’s conviction for possession of marijuana.

We have carefully reviewed the record in this cause, and have found no errors injurious to the appellant. The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Phillip Bell WATKINS v. STATE.
    8 Div. 963.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.

      Cecil M. Matthews, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Phillip Bell Watkins was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. He entered a plea of not guilty to the charge and his case was consolidated with that of his co-defendant, Annie L. Hampton. On the day of trial, the appellant’s case was severed from that of the co-defendant and the appellant entered a plea of guilty to robbery in the second degree, pursuant to a plea bargain agreement. Further, the appellant was sentenced to twenty-five years in the penitentiary pursuant to the provisions of the Alabama Habitual Felony Offender Act and such sentence was agreed upon by the parties in the plea bargain.

The appellant testified that he was told by Annie L. Hampton that she was going to rob the local Jitney Jr. He stated that she asked him to obtain a gun for her, but he was unable to do so. He stated that Ms. Hampton subsequently obtained a gun and they proceeded to the Jitney Jr. He stated that Ms. Hampton exited the car and entered the store. He stated that he left and parked the car in an alley. He stated that Ms. Hampton robbed the store, then walked up the alley and got in the car. He stated that he drove the car to his sister’s house where Ms. Hampton counted the money and gave him ninety dollars. He stated that he was arrested the following day.

I

The appellant contends that the trial court erred in accepting his guilty plea. He specifically argues that the court should not have accepted his plea after learning that he had smoked some marijuana over the weekend, prior to entering his plea. It should be noted that the appellant plead guilty on a Monday.

It is well settled that for a guilty plea to be held constitutional and, hence, properly accepted by the trial court, it must be made voluntarily and understanding. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Boykin developed the premise that, before a guilty plea may be accepted by the trial court, the record must affirmatively reflect that the accused has a full understanding of what the plea implies and of its consequences. This procedure may be accomplished by an oral examination of the accused, conducted by the trial judge.

The following excerpt from the record reveals that the trial court was in compliance with the Boykin decision:

“THE COURT: All right. In this case, you are charged with robbery in the first degree, but I understand the State is moving that you be charged with the lesser-included offense of robbery in the second degree; is that right, Mr. Starnes?
“MR. STARNES: Yes, sir.
“THE COURT: On that charge, I understand you wish to withdraw your plea of not guilty and enter a plea of guilty; is that right, Mr. Watkins?
“THE DEFENDANT: Yes, sir.
“THE COURT: On the 9th day of May, 1983, you were given these papers, which I show you here, Mr. Watkins, one green in color, the attached Schedule A, setting out the punishments of all the offenses, whether you had previous convictions or no previous convictions and the attached Schedule A to that. You signed the green paper saying that you can read, have read and gone over thoroughly with your attorney the matters contained in these papers.
“THE DEFENDANT: Yes, sir.
“THE COURT: Those matters being the charge against you which I’ve already stated — well, it is now robbery in the second degree, which is a Class B felony instead of a Class A felony, the punishment for a Class B felony being not less than two years nor more than twenty years in the penitentiary, and also a fine not to exceed $10,000. But the State has filed a motion asking that you be treated as a Habitual Offender. In that motion, there are two previous convictions, which, if you are determined to be a Habitual Offender, and if you plead guilty to a Class B felony, then the imprisonment is not less than fifteen years in the penitentiary and not more than ninety-nine years, or life. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right, sir. And that contained also your basic constitutional rights, Mr. Watkins. Did you, in fact, go over that with your attorney?
“THE DEFENDANT: Yes, sir.
“THE COURT: And do you feel that you understand the three matters that I spoke to you about?
“THE DEFENDANT: Yes, sir.
“THE COURT: Is there anything further you want the Court to explain to you about the present charge against you, the possible punishment, or your rights?
“THE DEFENDANT: No, sir.
“THE COURT: All right, sir. By pleading guilty, Mr. Watkins, you give up certain rights, some of those rights being the right to a speedy and public trial; the right to a trial by jury; the right to see, hear and question all witnesses against you; the right to ■ present evidence in your favor, and either to testify for yourself or remain silent, as you might desire; the right to have witnesses subpoenaed for you; and the right to full representation by your attorney before, during and after a trial by jury. Do you understand that by pleading guilty you give up those rights?
“THE DEFENDANT: Yes, sir.
“THE COURT: And it is the same as if you pled guilty — the same as if you had a trial and the jury found you guilty. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right, sir. The Court determines that the Defendant does have a full understanding of what a plea of guilt means and of its consequences. In this case, Mr. Watkins, you are charged with by the use of threats or physical force, and being assisted by another person, that you took $313.00 from the person of Julie Broadus of the Jitney Jr. No. 1, here in Marshall County, the property of one Arthur Keith Hendrix. Did you, in fact, go in and in effect rob Julie Broadus.” (R. 4, 5, 6, 7)

Therefore, the trial court, having fully complied with the requirements of Boykin, the burden of establishing that the guilty plea was invalid is upon the appellant. Gill v. State, 380 So.2d 1008 (Ala.Crim.App.1980); Phelps v. State, 410 So.2d 435 (Ala.Crim.App. 1981); Spears v. State, 428 So.2d 174 (Ala.Crim.App.1982). The appellant argues that his guilty plea was not given voluntarily, intelligently, and understanding^ in view of the fact that he had smoked marijuana within the last twenty-four to forty-eight hours before the plea was entered. The record in this case does not support the contention that the appellant was under the influence of any drugs at the time he entered his plea of guilt. In fact, the record leads us in the opposite direction. From the record of the guilty plea hearing we find the following:

“THE COURT: In other words, it is of your own free will that you are pleading guilty?
“THE DEFENDANT: Yes, sir.
“THE COURT: Are you under the influence of any drugs, medicines or alcohol? “THE DEFENDANT: No, sir. No, sir. “THE COURT: Are you taking any kind of medicine?
“THE DEFENDANT: No, sir.
“THE COURT: Are you taking any kinds of drugs?
“THE DEFENDANT: Well — right now? “THE COURT: Yes, sir.
“THE DEFENDANT: No, sir.
“THE COURT: When is the last time that you’ve taken any kind of drugs in the last — did you take some yesterday or—
“THE DEFENDANT: Well, I smoked some pot over the weekend.
“THE COURT: Okay. Do you realize what you’re doing? Has that affected you in any way?
“THE DEFENDANT: No, sir.
“THE COURT: So you know what you’re doing?
“THE DEFENDANT: Yes, sir.
“THE COURT: But that’s gone out of your system as far as you know?
“THE DEFENDANT: Yes, sir.” (R. 9-10)

“Addiction to narcotics does not per se render one incompetent to enter a plea of guilty.” Jackson v. United States, 512 F.2d 772 (5th Cir.1975); United States v. Robinson, 530 F.2d 677 (5th Cir.1976). Moreover, the trial judge who accepted the plea is in a far better position to determine whether the appellant voluntarily, intelligently and understanding^ made his plea of guilt. See Sanders v. State, 414 So.2d 482 (Ala.Crim.App.1982); Williams v. State, 386 So.2d 506 (Ala.Crim.App.1980). Relying on the authority hereinabove cited, we are of the opinion that the smoking of marijuana some twenty-four to forty-eight hours before does not per se impair ones ability to voluntarily and intelligently enter a guilty plea. Therefore, the trial judge did not err in accepting the plea. See also, Eathorne v. State, 448 So.2d 445 (Ala.Crim.App.1984).

II

The appellant also contends that it was error for the trial court to sentence him to twenty-five years in the penitentiary for robbery in the second degree, while his co-defendant only received fifteen years for robbery in the first degree. The appellant argues that the sentence imposed is excessive and unfair in light of his relatively minor participation in the offense.

It should be noted initially that appellant’s sentence was the result of a plea bargain agreement between the parties and consented to by the appellant. (R. 16, 17) The appellant’s sentence was enhanced pursuant to the Alabama Habitual Felony Offender Act. He was given due notice of the State’s intention to proceed under the Act. The appellant’s prior convictions were: (1) Grand larceny; and (2) Grand larceny. He was represented by counsel at both of the prior convictions.

The appellant’s sentence of twenty-five years is neither disproportionate to the crime he has committed, nor is it excessive in length. The appellant’s sentence was within the bounds set out in § 13A-5-9, Code of Alabama 1975. That section authorizes that, upon conviction of a Class B felony, which robbery in the second degree is, if a defendant has two prior felony convictions he may be sentenced not less than fifteen years nor more than ninety-nine. Alabama Code § 13A-5-9(b)(2). Where punishment is properly imposed within the limits defined by the punishing statute, this court is without jurisdiction to review the punishment. Fagan v. State, 412 So.2d 1282 (Ala.Crim.App.1982);' Wright v. State, 423 So.2d 345 (Ala.Crim.App.1982). Further, the appellant complains that his sentence was more severe than that of his co-defendant’s. It should be noted that his co-defendant had only one prior felony conviction. The appellant’s argument on this point is without merit. Therefore, the trial judge did not err in sentencing the appellant.

The judgment of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Augustin FERNANDEZ, Appellant, v. MIAMI JAI-ALAI, INC. and St. Paul Fire & Marine Insurance Company, Appellee.
    No. 83-644.
    District Court of Appeal of Florida, Third District.
    June 26, 1984.
    Rehearing Denied Aug. 10, 1984.
    Robey & Pelstring and R. James Pelstr-ing, Stabinski & Funt, Miami, for appellant.
    Talburt, Kubicki, Bradley & Draper and Betsy E. Hartley, Miami, for appellee.
    Before HUBBART and JORGENSON, JJ., and PEARSON and TILLMAN (Ret.) Associate Judge.
   PER CURIAM.

The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter judgment for the plaintiff in accord with the jury verdict returned below in his favor. The trial court’s post-verdict orders directing a verdict in favor of the defendants herein or in the alternative granting a new trial were erroneously entered and are hereby set aside.

First, the plaintiff’s negligence claim, see Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980), was properly submitted to the jury for consideration. There was a conflict in the evidence at trial as to whether prior crimes of violence had been committed on the defendant’s premises. In particular, the testimony of Officer Juan Fernandez indicates that such crimes had occurred with some frequency on the defendant’s business premise parking lots, and that, accordingly, a full security staff had been employed to protect the defendant’s business invitees. Moreover, there is a conflict in the evidence at trial as to whether the defendant negligently trained, deployed, and supervised its security staff to protect its business invitees in the parking lot where the plaintiff was assaulted. This being so, the authorities are clear that a directed verdict for the defendants did not lie in this case. See, e.g., Orlando Executive Park, Inc. v. Robbins, 433 So.2d 491 (Fla.1983); Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Fincher Investigative Agency, Inc. v. Scott, 394 So.2d 559 (Fla. 3d DCA), pet. for review denied, 402 So.2d 609 (Fla.1981); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Doll v. Robbins, 303 So.2d 338 (Fla. 3d DCA 1974), cert. denied, 317 So.2d 762 (Fla.1975).

Second, the grounds relied on for the new trial order have no merit. The trial court properly admitted evidence concerning crimes having been committed in the immediate vicinity of the defendant’s business premises; Green Companies v. Divincenzo, 432 So.2d 86, 88 (Fla. 3d DCA 1983); Winn-Dixie Stores, Inc. v. Johstoneaux, 395 So.2d 599 (Fla. 3d DCA), pet. for review denied, 402 So.2d 614 (Fla.1981); Compare Admiral’s Port Condominium Ass’n v. Feldman, 426 So.2d 1054 (Fla. 3d DCA), pet. for review denied, 434 So.2d 887 (Fla.1983) (evidence of crimes occurring “substantial distances” away from business premises inadmissible); moreover, the defendants, not the plaintiff, adduced the major portion of this evidence, in any event, and should not, therefore, be heard to complain of its admission. City of Miami Beach v. Klein, 414 So.2d 620 (Fla. 3d DCA 1982); Carvajal v. Adams, 405 So.2d 763 (Fla. 3d DCA 1981), pet. for review denied, 412 So.2d 464 (Fla.1982); Behar v. Southeast Banks Trust Co., N.A., 374 So.2d 572 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 202 (Fla.1980). The trial court’s instructions to the jury were perfectly proper. Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980); Sabatelli v. Omni International Hotels, Inc., 379 So.2d 444 (Fla. 3d DCA 1980); Sparks v. Ober, 192 So.2d 81 (Fla. 3d DCA 1966), and, the plaintiff presented a prima facie case of liability against the defendants on the negligence claim brought below. Orlando Executive Park, Inc. v. Robbins, supra; Green Companies, Inc. v. Divincenzo, supra; Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980).

Reversed and remanded.


author: ZEHMER, Judge. PER CURIAM.

text:
    Oliver THAMES, Appellant, v. STATE of Florida, Appellee.
    No. AY-188.
    District Court of Appeal of Florida, First District.
    July 25, 1984.
    Rehearing Denied Sept. 5, 1984.

      Oliver Thames, pro se.

      Jim Smith, Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Oliver Thames appeals from the trial court’s order summarily denying his rule 3.850 motion. The order was entered by the trial court without explanation or attachment of supporting portions of the record. Appellant’s motion alleged ineffective assistance of counsel because of defense counsel’s failure to move for severance of the two counts against Thames, i.e., armed robbery and possession of a firearm by a convicted felon. Thames alleged that he was prejudiced by counsel’s failure to make such motion for severance because the evidence of three prior felony convictions received at trial, although relevant to the possession of a firearm count, was irrelevant and highly prejudicial as to the armed robbery count.

According to rule 3.152, Florida Rules of Criminal Procedure, a defendant has an absolute right, upon timely motion, to have two or more offenses severed from a single information if the offenses are not based upon the same or connected acts or transactions. Puhl v. State, 426 So.2d 1226 (Fla. 4th DCA 1983). Additionally, rule 3.152 provides that the trial court shall grant a severance of two or more charges included in an information, even if such charges are properly joined, if the defendant proves that severance is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. The Florida Supreme Court has specifically held that a defendant is entitled to severance of properly joined counts where one count is possession of a firearm by a convicted felon and the other count is one in which evidence of prior felony convictions would be inadmissable under the facts of the particular case. State v. Vazquez, 419 So.2d 1088 (Fla.1982). The Court held that when two such counts are joined in a single information and evidence of prior felony convictions is admitted into evidence it is reversible error for the trial court to refuse to grant a severance based upon timely motion by the defendant.

We find that appellant’s 3.850 motion is not legally insufficient on its face; accordingly, we reverse and remand to the trial court. If on remand the court finds, in light of rule 3.152 and Vazquez, supra, that the record in the case conclusively shows that the defendant is entitled to no relief and denies the motion, it must attach portions of the record supporting this conclusion. If the record does not conclusively show that defendant is entitled to no relief, then the court should hold an evidentiary hearing and make appropriate findings of fact and conclusions of law. The court’s disposition of the motion on remand should be made in light of the criteria set forth in Armstrong v. State, 429 So.2d 287 (Fla.1983).

REVERSED and REMANDED.

SMITH and JOANOS, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The state of Florida moves for rehearing, contending that appellant’s 3.850 motion for post-conviction relief is legally insufficient on its face. The state did not file a response to appellant’s appeal from denial of his motion, nor was the state requested to do so by us pursuant to rule 9.140(g), Florida Rules of Appellate Procedure. The state also moves to supplement the record on appeal with portions of the lower court record which it contends will support the trial judge’s summary denial of appellant’s motion.

Initially, the state complains that it was “grossly unfair” for us to rule on the facial sufficiency of appellant’s 3.850 motion without requesting a response from the state. The state acknowledges that rule 9.140(g) provides that the court “may” request a response from the state before ruling on a 3.850 appeal and that the court need not do so in every case. Similarly, while the rule does not require the filing of briefs by the state, neither does it prohibit the state from doing so in appropriate cases without leave of court. We cannot serve as a screening board for the state in all 3.850 appeals and caution that we should not be expected to request briefs in every such appeal we reverse. In this case, it appeared obvious to us from the face of the motion that either review of some portion of the record below or an evidentiary hearing would be required to resolve the appellant’s contentions, so we chose to save the additional labor and time necessarily involved in requesting and considering a response from the state. Apparently our choice was ill advised. We do, however, willingly consider the state’s rule 9.330 motion for rehearing and treat the arguments made therein as if made in response to the appeal in accordance with rule 9.140(g).

The thrust of the state’s substantive argument is that appellant’s claimed denial of effective assistance of counsel was based solely on trial counsel’s failure to move for severance of the count charging possession of a firearm by a convicted felon and that such ground is insufficient as a matter of law because the law in effect at the time of appellant’s trial did not establish an absolute right to severance. The state points out that the decision in State v. Vazquez, 419 So.2d 1088 (Fla.1982), relied on in our opinion, was not handed down until after appellant’s trial, and the applicable case law at the time of trial held that a defendant was not entitled to a severance of counts in the circumstances of this case. Panzavecchia v. State, 311 So.2d 782 (Fla.3d DCA 1975). Therefore, the argument goes, appellant could not, as a matter of law, have been deprived of the effective assistance of counsel based on the failure to file a motion for severance.

We acknowledge that trial counsel did not have the benefit of State v. Vazquez, supra, at the time of appellant’s trial. We note, however, that there did exist at that time a split of authority as to whether a defendant was entitled to severance of a count charging possession of a firearm by a convicted felon. Orr v. State, 380 So.2d 1185 (Fla. 5th DCA 1980). The weight of authority throughout the country held that severance was required. See, Vazquez v. State, 405 So.2d 177, 180 (Fla. 3d DCA 1981), aff'd, State v. Vazquez, supra. In light of this split of authority and the obvious importance of severance in a case such as appellant’s, as subsequently recognized by the Supreme Court in Vazquez, we are not prepared to say as a matter of law that appellant’s 3.850 motion is facially insufficient to present a valid claim regarding effective assistance of counsel. The Supreme Court did not expressly say that the precedential effect of its decision in Vazquez would be prospective only. Hence, we see no difficulty in following that decision to determine appellant’s legal rights in this case.

The state has cited law generally reflecting the view that “judicial scrutiny of counsel’s performance must be highly deferential.” E.g., Strickland v. Washington, — U.S.—,—, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984). We accept the validity of this proposition, but deem this an argument more properly made to the trial court because the asserted denial of effective assistance of counsel during trial court proceedings must first be submitted and determined by that court. Pinder v. State, 421 So.2d 778 (Fla. 5th DCA 1982). When a defendant appeals the summary denial of a 3.850 motion alleging ineffective assistance of counsel and the motion has been denied without attachment of any portion of the record, the only issue properly before us is whether the motion, on its face, alleges sufficient facts to show a prima facie right to relief. Summary denial of the motion is reversible error unless its allegations “conclusively show that the prisoner is entitled to no relief.” Rule 3.850, Fla.R.Crim.P. Since the face of the motion before us shows a possible deprivation of appellant’s substantial legal rights, we feel compelled to reverse and remand for further proceedings on the motion.

The procedure set up by the criminal rules is simple and straightforward. If the rules are strictly followed, these cases can be disposed of with efficiency and dispatch. The trial court first looks to the face of the motion to determine its sufficiency. If found insufficient, then the motion should be denied. If found facially sufficient, the trial court then looks to the existing record to determine whether it conclusively shows that the prisoner is entitled to no relief. If so, the motion should be denied and those portions of the record conclusively showing no right to relief will be attached to the order of denial. If not denied on this basis, an evidentiary hearing on the merits must be held.

When an order summarily denying a 3.850 motion without hearing is appealed, it is processed under rule 9.140(g), which excuses compliance with the requirements applicable to a plenary appeal. Our summary review in such cases is as much procedural as substantive in nature, similar to reviewing orders dismissing complaints or granting summary judgment. The strong language of the criminal rule that the motion or record must “conclusively show that the prisoner is entitled to no relief” mandates that the trial court avoid summarily denying relief without a hearing if the facts alleged in the motion appear to present a meritorious claim. We have determined that the motion in this case presents a colorable claim for relief. But our decision should not be construed as holding that the defendant was, in fact, deprived of effective assistance of counsel and is entitled to a new trial. We simply remand for further consideration of that claim in light of the record, evidence presented at an evidentia-ry hearing if the trial court determines that such is necessary, and the Vazquez decision.

The state has also moved to supplement the record on appeal with portions of the trial court record which it contends will support the lower court’s ruling. The state indicates that “the practice of the court in the past” has been to request the state to supplement the record in order to save time and expense. We acknowledge that, pursuant to rule 9.200(f), Florida Rules of Appellate Procedure, we have requested parties to supplement the record on appeal and have directed circuit courts to supplement the record where the trial court’s order refers to its consideration of the record but fails to attach any portion thereof. But we are not aware of any policy or practice to request the state to so supplement the record in proceedings under rule 9.140(g) where the appealed order makes no reference to the trial court’s consideration of the record. Nor do we conceive that doing so is either appropriate or saves judicial time and labor.

Rule 3.850 requires that the trial court, when summarily denying a motion without an evidentiary hearing, shall consider and attach to its order portions of the record supporting the denial unless the motion is legally insufficient on its face. If portions of the record are not attached by the trial court, and the order makes no reference to the record, presumably the ruling is based on the face of the pleading. Since we are a court of review, our appellate decision in such cases must also be based on the face of the pleading. It is inappropriate to have the state select portions of the record below to support the appealed order when the trial court has not previously done so.

Appellee’s motions for rehearing and to supplement the record on appeal are DENIED. The case is REMANDED to the trial court for further proceedings.

SMITH, JOANOS and ZEHMER, JJ„ concur.

      . Rule 3.850, Fla.R.Crim.P.

      . Rule 9.140(g) reads as follows:

        Appeals from Summary Denial of Motion for Post-Conviction Relief Under Fla.R.Crim.P. 3.850. An appeal from an order denying relief under Fla.R.Crim.P. 3.850 without a hearing shall be commenced as prescribed by Rule 9.110. The clerk of the lower tribunal shall forthwith transmit to the court as the record conformed copies of the motion, order, motion for rehearing and order thereon, with a certified copy of the notice. No briefs or oral argument shall be required. Unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evi-dentiary hearing. The court may request a response from the State before ruling.

      . Doing so necessitates resetting the case for a second conference by the panel. We endeavor to dispose of such appeals at one conference.

      . Panzavecchia v. State was strictly limited to its facts as recognized by the third district in Vazquez v. State, 405 So.2d at 181. Dedmon v. State, 400 So.2d 1042 (Fla. 1st DCA 1981), also relied on by the state, was decided subsequent to appellant’s March 1981 trial.

      . A significant percentage of rule 3.850 appeals lodged in this court must be sent back or delayed in disposition for noncompliance with this part of the rule.


author: PER CURIAM. FERGUSON, Judge

text:
    Jethro PITTS, a/k/a Joe Pitts, a/k/a Melvin Pitts, a/k/a Jethro Mills, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1618.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Jethro Pitts, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed.

FERGUSON, Judge

(dissenting).

This appeal is brought from a summary denial of a motion for post-conviction relief. Appellant’s eighteen-month probation was revoked for an alleged violation of one of its terms. It appears from the sparse record presented that appellant violated a special condition which required him to “continue cooperating with police officers.” He contends that there was no agreement to that vague term and further that his initials were illegally placed beside that condition on the probation order by an agent of the state.

This case is similar to several others of recent months which we have reversed and remanded to the trial court for the purpose of conducting an evidentiary hearing, or for the purpose of attaching portions of the record which show conclusively that the appellant is entitled to no relief. See, e.g., Gonzalez v. State, 451 So.2d 1041 (Fla. 3d DCA 1984); Walker v. State, 432 So.2d 727 (Fla. 3d DCA 1983). I would, accordingly, reverse and remand for further proceedings.


text:
    Betty NEISLER, Petitioner, v. FRANKLIN COUNTY COMMISSION, Franklin County Planning and Zoning Commission, Franklin County Planner, Franklin County Building Official, James Floyd and Corey M. Henriksen, Respondents.
    No. AZ-97.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.

      John 0. Williams, of Boyd, Thompson & Williams, Tallahassee, for petitioner.
    J. Ben Watkins, of Watkins & Russell, Apalachicola, for respondents.
   PER CURIAM.

The petition for common law certiorari is DENIED.

MILLS, BOOTH, and BARFIELD, JJ., concur.


author: COWART, Judge.

text:
    INDUSTRIAL TRACTOR COMPANY, Petitioner, v. John BARTLETT, individually and d/b/a Bartlett Excavating, Respondent.
    No. 84-1086.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 1984.
    Daniel F. Hubsch of Hubsch and Aguilar, P.A., Jacksonville, for petitioner.
    No appearance for respondent.
   COWART, Judge.

Petitioner brought an action in replevin against respondent and included a claim for punitive damages in its amended complaint. Subsequently petitioner sought discovery of documentation of respondent’s finances in connection with its claim for punitive damages. By motion for protective order, however, respondent requested the trial court to limit discovery of his finances and the trial court granted his motion. Petitioner now seeks review of this order by writ of common law certiorari.

We note that common law certio-rari is available to review orders which grant discovery because of the irreparable harm involved when an order impermissibly grants discovery of a non-discoverable item. See, e.g., East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276 (Fla. 5th DCA 1982); Travelers Insurance Company v. Habelow, 405 So.2d 1361 (Fla. 5th DCA 1981). However, it is generally held that certiorari may not be utilized to review orders which deny discovery because such orders, if in error, can be rectified upon plenary appeal. See, e.g., Esman v. Board of Regents, 425 So.2d 156 (Fla. 1st DCA 1983); Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978). Accordingly, the petition for writ of certiorari is denied.

DENIED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: WENTWORTH, Judge.

text:
    James HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. AW-133.
    District Court of Appeal of Florida, First District.
    Aug. 16, 1984.
    Michael E. Allen, Public Defender, Virginia Daire, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory G. Cos-tas, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of judgments of conviction and sentences for the offenses of armed robbery with a firearm and false imprisonment. We find that the asserted error with regard to the imposition of a mandatory minimum term of imprisonment has not been preserved for appellate review. See generally, Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984). We further find that the court did not err in declining to give a requested instruction that the jury has “the power to pardon the defendant either partially or completely, regardless of whether the state has proven ... any ... offense_”

The judgments and sentences appealed are therefore affirmed.

SMITH, and WIGGINTON, JJ., concur.


text:
    BROWARD COUNTY, Petitioner, v. Kenute KERR, Respondent.
    No. 84-1263.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 1984.

      Harry A. Stewart, Gen. Counsel and Alexander Cocalis, Fort Lauderdale, for petitioner.
    Marc E. Kramish for Law Offices of Patrick N. Chidnese, Fort Lauderdale, for respondent.
   PER CURIAM.

Defendant Broward County seeks review of an order entered on May 30, 1984, compelling it to answer interrogatories directed to its former employee, Eziekiel Rivera. Mr. Rivera was dismissed from the suit as a party defendant on April 19, 1984.

The challenged order clearly represents a departure from the essential requirements of law, as the trial court had no authority to order petitioner to respond to interrogatories directed to a non-party, see Fla.R.Civ.P. 1.340 and 1.380(a)(2). Moreover, interrogatories served upon a governmental agency are to be answered by an “officer or agent” thereof “with information available to that party.” Fla.R.Civ.P. 1.340. Thus, the court had no authority to compel petitioner to obtain the desired information from its former employee.

Because the error complained of cannot be adequately redressed by appeal, see Donahue v. Hebert, 355 So.2d 1264 (Fla. 4th DCA 1978); West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975), we grant the writ and quash the order compelling petitioner to answer interrogatories directed to Mr. Rivera.

Petitioner also challenges an order overruling its objection to a notice to produce certain repair bills and estimates at the offices of plaintiffs attorneys arguing that it should not be required to deliver the documents to the offices of its adversary. It contends that it is only obligated to permit inspection of its records by respondent during normal business hours at the petitioner’s offices.

We do not find that any error has been demonstrated in this regard. Where an objection is made to the “time, place or manner” of production, and the parties are unable to agree, the trial court may, upon motion, enter an order under Rule 1.380(a) specifying the time, place and manner, and may further order who shall pay the cost of transporting the documents to the specified place of inspection. Cf Fed.R.Civ.P. 34(b); 4A J. Moore, J. Lucas & D. Epstein, Moore’s Federal Practice § 34.19 (2d ed. 1984). In this case, we cannot say that the trial court abused its discretion in overruling the petitioner’s objection as to the requested place of production. Discovery which is otherwise appropriate should not be refused solely because production of documents would hamper a party’s business operations. Id. at § 34.19[2], See also Baxter Travenol Laboratories, Inc. v. LeMay, 93 F.R.D. 379 (S.D. Ohio 1981) (holding that an unwieldy record-keeping system, requiring heavy expenditures of time and money to produce relevant documents is not an adequate excuse to refuse discovery).

Consequently, we deny the writ insofar as it seeks to quash the order requiring petitioner to produce certain documents at the offices of plaintiff’s attorneys, but we grant the writ and quash the order compelling answers to interrogatories.

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


text:
    Ricky Ray JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 84-20.
    District Court of Appeal of Florida, Fifth District.
    Aug. 23, 1984.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED. See § 924.06(3), Fla.Stat.; Wells v. State, 390 So.2d 808 (Fla. 5th DCA 1980).

DAUKSCH, FRANK D. UPCHURCH, Jr. and COWART, JJ., concur.


author: SCHOONOVER, Judge.

text:
    Nancy S. LEVITT, Appellant, v. Myles H. LEVITT, Appellee.
    No. 84-606.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 1984.

      Louis E. Stolba of Stolba & Lumley, P.A., St. Petersburg, for appellant.
    N. David Korones, P.A., Clearwater, for appellee.
   SCHOONOVER, Judge.

This is an interlocutory appeal from an order temporarily reducing child support payments previously awarded to the appellant, Nancy S. Rodin, formerly Levitt. We hold the trial court erred in entering an order temporarily reducing the appellee’s child support obligation at a hearing on a motion for continuance. We, therefore, reverse.

On June 8, 1983, the trial court approved a joint stipulation entered into between the parties and ordered them to comply with its terms and conditions. The stipulation modified a final judgment of dissolution of marriage that had been rendered on September 25, 1980.

Shortly thereafter, the appellee, Myles H. Levitt, filed a supplemental petition for modification of the joint stipulation seeking to reduce the agreed-upon child support. A hearing on this petition was scheduled and rescheduled several times. On February 9, 1984, the appellant moved to continue the next scheduled hearing. Appellant’s motion set forth the grounds for the continuance and was supplemented by two supporting affidavits. On the same day, appellant filed, and served upon the appellee’s attorney, a notice of hearing. The notice informed appellee’s attorney that the motion for continuance would be heard on February 27, 1984.

At the conclusion of the hearing on appellant’s motion for continuance, the court granted the motion, but over appellant’s objection, reduced appellee’s obligation for child support for the period of the continuance. This appeal timely followed.

We find that the trial court violated appellant’s due process rights by hearing and determining matters that were not the subject of appropriate notice. Barreiro v. Barreiro, 377 So.2d 999 (Fla. 3d DCA 1979). In Barreiro, the Third District Court of Appeal held that a court may not expand the scope of a hearing set only upon a particular motion. In that case, without prior notice, without appropriate pleadings, and over the objection of the husband, the trial judge expanded the scope of an emergency hearing. In reversing, the court stated it was plainly improper and clearly in violation of appellant’s due process rights to hear and determine matters that were not the subject of appropriate pleadings or notice.

In the instant case, appropriate pleadings on the issue of reducing child support can be found in the record, but the notice of hearing indicates that only appellant’s motion for continuance was to be considered at the hearing. Appellant was not prepared, nor was she required to be prepared, to argue against a reduction in child support. See Hardee, County Commissioners v. Florida Department of Commerce, Division of Employment Security, 343 So.2d 842 (Fla. 2d DCA 1976) (due process requires that employers be afforded notice of issues to be heard in unemployment compensation proceedings in order to present facts and evidence bearing on the claimant’s entitlement to benefits); Munroe Memorial Hospital v. Thompson, 388 So.2d 1338 (Fla. 1st DCA 1980) (employer lacked adequate notice regarding claim based on a knee injury where notice referred to effect of alleged back injury).

Appellee’s reliance upon Sapp v. Warner, 105 Fla. 245, 481 (Fla.1932) is misplaced. A court of equity has jurisdiction over the enforcement of its own order and may alter the method of enforcement of its order. The court may only exercise this jurisdiction, however, in appropriate proceedings. Sapp. Accordingly, the trial court erred ip modifying the child support provisions of its previous order in the hearing on a motion for continuance.

We, therefore, reverse and remand for proceedings consistent herewith.

GRIMES, A.C.J., and SCHEB, J., concur.


text:
    Bradow WILSON, Appellant, v. L & N SUPPLIES & CONSTRUCTION and Esie, Inc., Appellees.
    No. AS-375.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Joseph T. Farrell, of Hurt & Parrish and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellant.
    Donna L. Bergh, of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellees,
   PER CURIAM.

In this workers’ compensation case, claimant appeals an order denying his claim for wage-loss benefits from August 1982 to December 1982, authorization of medical treatment for chest pain, and costs, interest, penalties, and attorney’s fees. There is competent, substantial evidence to support the deputy’s findings of fact, and claimant has failed to demonstrate that the result reached by the deputy is improper under the applicable law. Accordingly, we affirm.

WENTWORTH, NIMMONS and ZEH-MER, JJ., concur.


text:
    Ricky Lee LAZZELL, Appellant, v. STATE of Florida, Appellee.
    No. AX-488.
    District Court of Appeal of Florida, First District.
    Aug. 24, 1984.
    Ricky Lee Lazzell, pro se.
    Jim Smith, Atty. Gen., Jerry M. Blair, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED, without prejudice to appellant’s right to invoke any remedies which may be available to him under the Interstate Agreement On Detainer’s Act, Section 944.45, et seq., Florida Statutes (1983).

SMITH, JOANOS and ZEHMER, JJ., concur.


text:
    Lindsey ARDLEY, Appellant, v. STATE of Florida, Appellee.
    No. AW-324.
    District Court of Appeal of Florida, First District.
    Aug. 29, 1984.
    P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. See Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984).

SMITH, WENTWORTH and WIGGIN-TON, JJ., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Sondi K. KARTMAN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, etc., Appellee.
    No. 83-1075.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    LeJune Perrin, Law Clerk, Homero Leon, Jr. of the Greater Orlando Area Legal Services, Inc., Orlando, for appellant.
    William T. Moore, Tallahassee, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Sondi Kartman appeals from a final order of the Unemployment Appeals Commission which affirmed the appeals referee’s decision denying her unemployment compensation benefits.

Kartman began working for Sheraton World as a hostess in November, 1982. In February, 1983, she was transferred to the company’s Cafe Sunrise. Her duties were to greet and seat customers. A senior hostess was assigned to show Kartman the proper procedure for seating people at her new work place. Apparently the hostess was not as tactful as she might have been and castigated Kartman for a mistake in front of customers. Kartman complained of this treatment to a supervisor who took no steps to alleviate the friction between the two. When a similar incident happened again a few minutes later, Kartman left her assigned duties and went home without notifying the manager or supervisor. Later in the day, she called in and told the manager what had happened. The manager testified he checked with the senior hostess and concluded that Kartman, in walking off the job, had quit. Kartman testified that the manager told her she was fired.

The appeals referee concluded that Kart-man’s action in leaving work amounted to misconduct connected with her work and disqualified her for benefits. The commission affirmed.

Section 443.101(l)(a), Florida Statutes (1983), provides that no unemployment benefits may be received if an employee is discharged for misconduct. “Misconduct” is defined in section 443.036(24), Florida Statutes (1983), as follows:

“Misconduct” includes, but is not limited to, the following, which shall not be construed in pari materia with each other:
(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

We recently held in Davis v. Unemployment Appeals Commission, 425 So.2d 198 (Fla. 5th DCA 1983) that an employee’s action in walking off the job, combined with his failure to give reasonable assistance to another employee during a peak in business activity, amounted to an intentional and substantial disregard of his employer’s interests so as to constitute misconduct. That ease is distinguishable from the instant one. Kartman was subjected to embarrassment and humiliation in front of customers on two occasions and sought assistance from her supervisor without success before departing. Additionally, here Sheraton World established and published “Standards of Discipline” governing employees and specified the penalties for violation of these rules. “Leaving hotel during working hours without permission” carried the penalty of an oral reprimand for the first violation and only on the third violation did the standards provide for discharge. Under these circumstances, the referee and commission were incorrect in concluding that Kartman acted with a “willful or wanton disregard” of her employer’s interests or in “substantial disregard” of its interests.

REVERSED.

COBB, C.J., and SHARP, J., concur.


author: DOWNEY, Judge.

text:
    Gregory Bernard CRUTCHFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1306.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

While incarcerated in the county jail on other charges, appellant allegedly attempted to “burn the jail down,” which gave rise to a new charge of arson. In addition, appellant was charged with battery on two law enforcement officers.

During the course of the pretrial proceedings the court appointed three successive public defenders to represent appellant. Each was allowed to withdraw because of appellant’s conduct, which, among other things, involved the filing of a grievance against counsel with the Florida Bar, accusations of railroading and colluding with the State, as well as threats of retribution. The trial court warned appellant that he was running out of public defenders and appellant might eventually have to represent himself if his intransigence continued. Finally, when the third public defender withdrew, the trial court advised appellant that, as in baseball, "three strikes and you are out”; appellant would have to represent himself. Appellant contended he could not represent himself and wanted a lawyer; but the trial judge, no doubt fed up with appellant, refused to appoint another lawyer to represent appellant.

We are extremely sympathetic with the trial judge. It would seem that appellant had made his bed and should have been required to lie in it. However, as we understand the law in this state today, before a trial judge can require, or even allow, a defendant in a criminal case to represent himself, the judge must conduct an inquiry to determine whether the defendant is capable of defending himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Here, appellant had filed pleadings himself and argued some of them, so it might be contended that the judge already knew appellant was able. However, we do not believe that the filing of pretrial motions meets the requirements of a true Faretta inquiry. See, too, Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981); Mansfield v. State, 430 So.2d 586 (Fla. 4th DCA 1983); Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984); Drago v. State, 415 So.2d 874 (Fla. 2d DCA 1982). Furthermore, appellant protested that he could not represent himself; that in the future he would behave; and our review of the record indicates appellant was not really competent to represent himself. In addition to having no counsel at trial, appellant was also refused counsel at sentencing, although he requested it. This violated Florida Rule of Criminal Procedure 3.111(d)(5).

Accordingly, with a great degree of reluctance, we are constrained to reverse appellant’s conviction and sentence and remand the cause for a new trial.

REVERSED AND REMANDED.

DAUKSCH, JAMES C., and PURDY, H. MARK, Associate Judges, concur.


author: HOBSON, Acting Chief Judge.

text:
    EASTERN AIR LINES, INC., Appellant, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, Appellee.
    No. 83-557.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.
    Pamela J. Reynolds and William G. Bell, Jr., Miami, for appellant.
    William S. Josey and Stewart D. Eggert of Allen, Dell, Frank & Trinkle, Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Eastern Air Lines, Inc. (Eastern), appeals a final declaratory summary judgment order rendered in favor of the Hillsborough County Aviation Authority (Authority), a public body corporate charged by law with the ownership and operation of Tampa International Airport (TIA). We affirm.

In 1968 the Authority and Eastern entered into a lease (Eastern Lease) allowing Eastern to occupy and use certain areas of TIA. The Eastern Lease set forth Eastern’s right to operate a private passenger waiting lounge, known as the Ionosphere Club. The Eastern Lease did not require Eastern to pay the Authority any concession fees.

At the time the Eastern Lease was executed, the Florida Beverage Law, sections 561.01, et seq., Florida Statutes (1967), did not permit airline companies to sell alcoholic beverages in their passenger waiting lounges at airport terminal buildings. In 1981, however, the legislature amended section 565.02(3)(a), see chapter 81-158, section 22, Laws of Florida (1981), thereby enabling an airline company to sell alcoholic beverages in its passenger waiting lounge if it satisfied the following relevant criteria:

Operators of ... airlines engaged in interstate or foreign commerce ... may obtain licenses to sell the beverages mentioned in the Beverage Law ... on payment of an annual license tax ..., and in no more than one passenger waiting lounge licensed by the division and operated by an airline licensed herein at each of its terminals in the state ... provided such licensed airline shall have first obtained an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees and filed a tariff for such lounge with the Civil Aeronautics Board, and on payment of an additional license tax ... per lounge ....

Section 565.02(3)(a). (Emphasis added.)

Pursuant to the amended Beverage Law, Eastern filed an application for a license with the Division of Alcoholic Beverages and Tobacco of the Department of Business Regulation of the State of Florida (DABT). Thereafter, DABT issued Eastern a license to sell alcoholic beverages at TIA from October 1, 1981, until September 30, 1982. Eastern s license, which was renewed for another year effective October 1, 1982, stated in part:

This license/permit authorizes the holder to conduct the defined business at the location imprinted hereon pursuant to applicable laws and administrative rules of the State of Florida.

(Emphasis added.)

The Authority notified Eastern that it would not permit the sale of alcoholic beverages at the Ionosphere Club because, in its opinion, the Eastern Lease did not permit such sale. Nevertheless, having been granted a license by DABT, Eastern commenced with such sale.

Several days later, Host International, Inc. (Host) filed a complaint against Eastern and the Authority seeking declaratory and injunctive relief. In 1969 Host and the Authority had signed a lease (Host Lease) permitting Host to occupy and use certain areas of TIA. The Host Lease made Host the main concessionaire for food and beverages at TIA. Unlike the Eastern Lease, the Host Lease required Host to pay concession fees to the Authority. In its suit, Host' claimed under its lease the exclusive right to sell alcoholic beverages at TIA. It also asserted that Eastern’s sale of alcoholic beverages in the Ionosphere Club violated both its lease and the Eastern Lease.

The Authority promptly filed a cross-claim for declaratory relief against Eastern, alleging that Eastern did not possess “an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees,” as required by section 565.02(3)(a). It thus requested a declaration by the court regarding the application to the Eastern Lease of the above criterion set forth in section 565.02(3)(a). Subsequently, it filed a motion for a final declaratory summary judgment order on the erossclaim. The court thereafter rendered a final declaratory summary judgment order which “declared to be unlawful” Eastern’s sale of alcoholic beverages in the Ionosphere Club.

On appeal, Eastern raises several arguments. Its first two contentions may be combined to say that DABT has the exclusive authority to suspend or revoke a license, and that, accordingly, in light of the doctrine of exhaustion of administrative remedies, by instituting a declaratory judgment action in the circuit court seeking to, in effect, revoke or suspend Eastern’s license, the Authority challenged in an “improper forum” the correctness of DABT’s decision to issue Eastern a license. The Authority responds that the “jurisdiction” of DABT is not exclusive in this matter. It points out that section 562.46 of the Beverage Law states:

Legal remedies not impaired. — It is the declared legislative intention that no provision or provisions of the Beverage Law shall in any manner limit, modify, or preclude any person from instituting legal proceedings in courts of competent jurisdiction for the adjudication of any rights that such person may have under the Federal and State Constitutions and under laws now existing, or laws which may be hereinafter enacted.

The Authority submits that section 562.46 “dovetails” with section 120.73 of the Administrative Procedure Act, sections 120.50, et seq., Florida Statutes (1981). Section 120.73 reads:

Circuit Court Proceedings; Declaratory Judgments. — Nothing in this chapter shall be construed to repeal any provision of the Florida Statutes which grants the right to a proceeding in the circuit court in lieu of an administrative hearing or to divest the circuit courts of jurisdiction to render declaratory judgments under the provisions of chapter 86.

In the Authority’s view, chapter 86 provides a “tailor-made remedy” for the dilemma in which it finds itself in the case at bar. Section 86.021 states that a circuit court may render a declaratory judgment regarding how a party’s rights, status, or other equitable or legal relations are affected by a statute. Also, section 86.011 provides that a circuit court may file a declaratory judgment concerning the existence or nonexistence of any fact upon which the existence or nonexistence of a privilege does or may depend.

A review of relevant portions of the Beverage Law shows that DABT possesses the authority to issue, revoke and suspend a license for the sale of alcoholic beverages. Section 561.18 of the Beverage Law authorizes DABT to investigate the qualifications of an applicant and the location sought to be licensed. Upon completion of its investigation, DABT is obligated by section 561.19 to approve or disapprove of the application. See Dade County v. Overstreet, 59 So.2d 862, 865 (Fla.1952). Consistent with sections 561.18 and 561.19, section 561.29(1) empowers DABT to suspend or revoke a license.

Given that issuance of a license by DABT is contingent upon the applicant’s having “first obtained an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees,” see section 565.02(3)(a) (emphasis added), it necessarily follows that, before issuing Eastern the license, DABT assumed or determined that Eastern possessed “an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees.” DABT made such an assumption or determination without ever having notified the Authority about Eastern’s application for a license, despite the express requirement in section 120.60(2) of the APA that, when an application for a license is made, the agency in question “shall conduct the proceedings required ... with due regard to the rights and privileges of all affected parties .... ”

Ordinarily, a party adversely affected by DABT’s decision to issue a license files a timely petition with the appropriate district court of appeal for review of such final agency action. See § 120.68. However, in light of the fact that the Authority was never notified of Eastern’s application for a license, it is quite understandable that the Authority did not resort to judicial review in a district court of appeal when DABT issued Eastern the license.

Still, as a general rule, it is improper to seek judicial relief before an available, adequate administrative remedy has been exhausted. See, e.g., Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978); Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961). As Eastern points out, section 120.565 of the APA affords the Authority an alternative remedy. Section 120.565 reads in pertinent part:

Declaratory Statement by Agencies. —Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only. The agency shall give notice of each petition and its disposition in the Florida Administrative Weekly, ... and transmit copies of each petition and its disposition to the committee. Agency disposition of petitions shall be final agency action.

However, the doctrine of exhaustion of administrative remedies, to reiterate, is a general rule, not an absolute one. Kenneth Culp Davis, a renowned authority on the subject of administrative law, has accurately remarked: “The law embodied in [case] holdings clearly is that sometimes exhaustion is required and sometimes not.” Davis, 3 Administrative Law Treatise § 20.-01 (1958). Indeed, commented our state supreme court in Gulf Pines Memorial Park, Inc.:

[AJs a general proposition, the circuit court should refrain from entertaining declaratory suits except in the most extraordinary cases, where the party seeking to bypass usual administrative channels can demonstrate that no adequate remedy remains available under Chapter 120.

361 So.2d at 699. (Emphasis added.)

In the case at bar, at least several factors compel abstaining from applying the doctrine. As mentioned previously, when Eastern submitted its application for a license, DABT, contrary to the mandatory language of section 120.60(2) of the APA, never afforded the Authority, an affected party, an opportunity to contest whether Eastern possessed “an appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees.” Moreover, forcing the Authority to resort to an administrative proceeding pursuant to section 120.565 during the ongoing proceeding in the circuit court between Eastern, the Authority, and a third party, Host, instead of allowing the Authority to seek a declaratory judgment in the same court pursuant to section 562.-46 of the Beverage Law, section 120.73 of the APA and sections 86.011 and 86.021 of the Declaratory Judgment Act, would be, to say the least, an expensive, inefficient and awkward proposition for all involved. Cf. Davis, 4 Administrative Law Treatise § 26:1 (1983). Lastly, resolution of the question of whether Eastern possesses an “appropriate space lease or permit providing for payment of nondiscriminatory rental and concession fees” does not call for the exercise of DABT’s administrative expertise.

Eastern’s final argument on appeal is without merit.

Accordingly, we AFFIRM the final declaratory summary judgment order.

DANAHY and SCHOONOVER, JJ., concur.


text:
    Nathaniel WATTS, Petitioner, v. The Honorable Morison BUCK, Circuit Judge, Thirteenth Judicial Circuit, Hillsborough County, Florida, Respondent.
    No. 84-873.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 1984.

      Nathaniel Watts, pro se.
    Carolyn J. House, Tampa, for respondent.
   PER CURIAM.

By petition for writ of certiorari, Nathaniel Watts, a convicted felon presently incarcerated at Dade Correctional Institute, seeks review of the trial court’s orders 1) suspending prosecution of Watts’ legal malpractice action against his criminal defense attorney until restoration of Watts’ civil rights and 2) denying Watts’ subsequent motion for appointment of counsel in that civil proceeding. We deny the petition.

As to the first point, we find no clear departure from the essential requirements of law in the trial court’s ruling that petitioner’s right to maintain this particular action constitutes one of the civil rights suspended under section 944.292, Florida Statutes (1983). See Annot., 74 A.L.R.3d 680, 697 (1976). We find petitioner’s reliance on In re Advisory Opinion of the Governor Civil Rights, 306 So.2d 520 (Fla. 1975), misplaced to the extent that the cited opinion addresses a statutory predecessor to the current provision which specifically provided that the “only civil rights which shall be suspended by conviction are the right to vote, hold public office, and serve on a jury.” See § 944.292, Fla.Stat. (1975). Significantly, the current statute contains no such limitation.

As to the second point, we find no error in the trial court’s order denying petitioner’s motion for appointment of counsel. See In the Interest of D.B., 385 So.2d 83, 89 (Fla.1980); McKay v. Jenkins, 405 So.2d 287, 288 (Fla. 1st DCA 1981).

Accordingly, the petition for writ of cer-tiorari is DENIED.

HOBSON, A.C.J., and BOARDMAN and DANAHY, JJ., concur.

      . Section 944.292, Florida Statutes (1983), provides:
      Suspension of civil rights. — Upon conviction of a felony as defined in s. 10, Art. X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution.

      . Section 944.292, Florida Statutes (1975), provides:
      Suspension of civil rights. — Effective July 1, 1974, upon conviction for a felony, the civil rights of the person convicted shall be suspended until he is discharged from parole or released from the custody of the department without parole, at which time such civil rights are automatically reinstated. The only civil rights which shall be suspended by conviction are the right to vote, hold public office, and serve on a jury.