text:
    Alfreddie COLE, Sr. v. STATE.
    6 Div. 200.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.

      George W. Andrews, III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Alfreddie Cole, Sr., was indicted by the grand jury of Jefferson County, Bessemer Division, for sodomy in the first degree. He entered a plea of not guilty, was found guilty by a jury of sodomy in the first degree, as charged in the indictment, and was duly sentenced to be imprisoned in the penitentiary of the State of Alabama for a term of twenty-two (22) years, and he appeals to this Court.

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

The appellant contends in his brief that his conviction should be reversed for three reversible errors made by the trial judge during his trial. First, by its admission into evidence of Cole’s August 17 statement to Sergeant Farr. Second, by allowing a ten-year-old girl child to testify against Cole. Third, by overruling appellant’s motion for a judgment of acquittal because state’s evidence was insufficient to sustain a conviction of the offense.

State’s evidence tended to prove that the injured party was a little four-year-old girl child. That the appellant was a 38-year-old person. That the appellant was visiting in the home of the mother of the four-year-old girl child on the first Saturday after the 4th day of July, 1982. That the mother left her house for a few minutes to go across the street to get some food from her mother’s house, and when the mother of the injured party left her home, the appellant, the four-year-old child, and her little sister, a girl child about nine years of age, and a boy baby were all left in the living room. That the appellant took the four-year-old girl into the bathroom and left the door ajar. That the nine-year-old child looked in the bathroom, and saw the appellant with his hand on the four-year-old girl child’s head, and his penis in her mouth. That on or about August 15, 1982 the mother of the four-year-old child noticed she was walking funny, and carried her to the hospital where she found out that the child had an infection down in the lower part of her womb, in her privates, and at this time Officer Farr began his investigation of the case.

In a statement signed by the appellant and marked state’s exhibit 2, dated 8/17/82 and witnessed by Sergeant Farr, the appellant stated, among other things, that while he was using the bathroom, he was shaking his penis off, and when he turned around, the little girl was standing there, and he hit her across her mouth with his penis, and then pulled his pants up, and went back to the front room, and drank the rest of his beer, and saw that the mother of the child was not coming back, so he left. That when he hit the little girl in the mouth with his penis, she backed away and left the bathroom. That he never touched her, or held her. That he had been smoking reefers, and drinking beer and whiskey the night before and was not sure what happened.

Sergeant Farr testified that state’s exhibit two is a written statement dated 8/17/82, signed by the appellant, Alfreddie Cole, Sr., and witnessed by Sergeant Farr, an officer of the Bessemer Police Department, who testified that the appellant read and signed the statement in his presence, and said its contents were true. The appellant did not testify before the jury or before the judge on the hearing out of the presence and hearing of the jury. State’s exhibit two states, among other things, that the appellant is 38 years of age. That before answering any questions, or making any statement, Sergeant Farr, a person who identified himself as a police officer, duly warned, and advised him, and he knew, and understood that he had the following rights: That he has the right to remain silent, and does not have to answer any questions, or make any statements at all; that any statement he makes can and will be used against him in a court, or courts, of law for the offense, or offenses, concerning which the following statement is hereinafter made; that he has the right to consult with a lawyer of his own choice before, or at any time during, any questioning, or statements he makes; that if he cannot afford to hire a lawyer, he may request and have a lawyer appointed for him by the proper authority before, or at any time during, his questioning, or statements that he makes, without cost or expense to him; that he can stop answering any questions, or making any statements, at any time he chooses, and call for the presence of a lawyer to advise him before continuing any questioning, or making any more statements, whether or not he has already answered some questions, or made some statements.

State’s exhibit number two also contained the following statements: That the appellant did not want to talk to a lawyer, and he hereby knowingly and purposely waived his right to remain silent, and his right to have a lawyer present while he makes the following statement to the aforesaid person, knowing that he has the right and privilege to terminate any interview at any time hereinafter, and have a lawyer present with him before answering any more questions, or making any more statements, if he chooses to do so. That the following voluntary statement is made of his own free will, without promise of hope, or reward, without fear, or threats of physical harm, without coercion, favor, or offer of favor, without leniency, or offer of leniency, by any person, or persons, whomsoever. That he had read, and signed, each page of the statement saying that the facts contained in the statement are true and correct; that he had made no request for the advice, or presence, of a lawyer before, or during, any part of the statement, nor at any time before it was finished did he request that it be stopped, and that he was not told, or prompted, what to say in the statement, and that it was completed at 11:00 A.M. on the 17th of August, 1982.

After a proper predicate for a confession was laid by the state, out of the presence and hearing of the jury, for the introduction of state’s exhibit two, and over the objection of the appellant that the statement was produced by coercion, by unlawful detention of the appellant, the court overruled the appellant’s objection, and allowed the statement to be introduced into evidence before the jury. The appellant was arrested by Officer Farr on August 16, after securing statements from the mother of the four-year-old injured party, her nine-year-old sister, and securing the record from the hospital where it was diagnosed that the injured party had a venereal disease.

The state rested its case.

When the state rested its case, the appellant moved for a judgment of acquittal in the case on the grounds that the state had not produced evidence to show the conduct charged in the indictment. The court overruled appellant’s motion for a.-judgment of acquittal.

The appellant offered the evidence of Dr. Edward Earl Mardant, Sr., who testified, in substance, that he was a Medical Assistant, County Jail, Bessemer, Alabama, Jefferson County Sheriffs Department, and in the course of his duty on August 18, 1982, he ran a VDRL to test Alfreddie Cole, Sr., the defendant in this case, for syphilis, and that on that date the test was negative; that the defendant did not then have that type of venereal disease. The appellant did not testify in his behalf.

Prima facie, a confession is not voluntary, and there must be evidence addressed to the trial judge rebutting that presumption, and showing prima facie the confession was voluntarily and understandingly made. The state introduced evidence tending to prove that no threats were ever made against the appellant; that he was not mistreated in any way; that no reward, or hope of reward, was offered, or held out to him to make a statement; that no inducements of any kind were made to him, and that he was fully informed of his constitutional rights, and knowingly and voluntarily waived them. The appellant offered no evidence at the hearing before the judge out of the presence and hearing of the jury. We hold that the predicate as laid in this case was sufficient to show prima facie that the confession was know- • ingly and voluntarily made. It appears from the record that there was no evidence before the trial court that the statement was not knowingly and voluntarily made, or from which such an inference could be drawn.

This Court has held many times that when a trial judge has found that a confession has been knowingly and voluntarily made by a defendant, after a hearing, and that the defendant has been fully appraised of his constitutional rights, and his rights as provided by the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and after having heard the evidence of witnesses, outside of the presence and hearing of the jury concerning his rights, and a proper predicate as to the voluntariness of the confession has been properly laid, this Court should not disturb the finding of the trial court, unless this Court finds from the record that the trial court’s finding was palpably contrary to the weight of the evidence. The question as to whether the confession, or inculpatory statement, was voluntarily and knowingly made is one of law to be determined by the trial judge. The trial court judge needs only to be convinced from a preponderance of the evidence to find that the statement was knowingly and voluntarily made. Baldwin v. State, Ala.Cr.App. 372 So.2d 26, Ala. 372 So.2d 32; Hale v. State, Ala.Cr.App. 420 So.2d 821; Jones v. State, 292 Ala. 126, 290 So.2d 165; Dejnozka v. State, Ala.Cr.App. 397 So.2d 240; Certiorari Denied, Ala. 397 So.2d 246; Rudolph v. State, 275 Ala. 115, 152 So.2d 662; Certiorari Denied, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119; Rehearing Denied, 375 U.S. 917, 84 S.Ct. 204, 11 L.Ed.2d 158; Womack v. State, 435 So.2d 754 (Ala.Cr.App.1983); Ex Parte Womack, 435 So.2d 766 (Ala.1983); Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192; Raines v. State, 428 So.2d 206 (Ala.Cr.App.1983).

There being no evidence in the record of an unlawful and illegal detention, we hold that under the evidence in this case the trial court did not err to the prejudice of the appellant when it overruled the appellant’s objection to the introduction of the statement by the appellant to Sergeant Farr, on the grounds that the statement is the result of an unlawful and illegal detention.

The second error complained of by the appellant in his brief is that the trial court allowed the injured party’s sister, a ten-year-old girl child, to testify as a state witness at the trial of the appellant. The record shows that before allowing the child to testify, the trial judge, out of the presence and hearing of the jury, and in the presence of all the parties, examined the witness, and allowed the state, and defendant, to fully examine, and cross-examine her. She stated her name, her age, the name of the school she attended, the grade she was in, that she went to Sunday School, that she knows the lawyers are going to ask her some questions, that she knows what the truth is, and what a lie is, and the difference in them, and what is meant to tell the truth, that the truth is what you have to tell, that when you tell a story, you tell something wrong, that she is going to tell the truth about Alfreddie, that it is better to tell the truth than a lie, that if you tell a lie, you go down to hell, that she has been told to tell the truth. The appellant’s counsel was allowed to cross-examine the witness, and was not limited in its scope. At the conclusion of the voir dire hearing, the court stated to the parties he was going to allow the witness to testify.

Code Of Alabama, 1975, Sec. 12-21-165 provides:

“Incompetent witnesses.
“(a) Persons who have not the use of reason, such as idiots, lunatics during lunacy and children who do not understand the nature of an oath, are incompetent witnesses.
“(b) The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.”

The courts of this state have not set a limit for children of tender age to testify. It is the duty of the trial court to examine a child of tender years, and in its discretion determine if the child has sufficient intelligence to observe, recollect, and narrate what occurs, and has sufficient mental capacity to be a witness. In the case of Jackson v. State, 239 Ala. 38, 193 So. 417, Justice Bouldin stated:

“The exclusion of a witness having good sense, however tender of age, is disfavored because it would often close the door to prove crimes against children themselves.”

We hold that under the facts in this case the trial court did not err to the prejudice of the appellant when it allowed the ten-year-old girl child to testify. Jackson v. State, supra; McElroy’s Alabama Evidence, Third Edition, 94.01(5); Code Of Alabama, 1975, Sec. 12-21-165, supra; Miller v. State, Ala.Cr.App. 391 So.2d 1102; Jackson v. State, Ala.Cr.App. 414 So.2d 1014; Taylor v. State, Ala.Cr.App. 408 So.2d 551; Certiorari Denied, Ala. 408 So.2d 555.

The third contention contained in appellant’s brief is that the trial court erred to his prejudice by overruling appellant’s motion for an acquittal because state’s evidence was insufficient to sustain a conviction of the offense charged in the indictment because the testimony of the ten-year-old sister of the injured party was unworthy of belief due to her tender years, and contradictory statements on the stand, and because appellant’s alleged statement of August 17, 1982 to Officer Farr was the product of an illegal detention, and hence not worthy of belief.

The appellant was indicted for the offense of sodomy in the first degree, a Class A Felony. Code Of Alabama, 1975, Sec. 13A-6-63(a)(3) provides that “a person commits the crime of sodomy in the first degree if: (3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than twelve years old.”

State’s evidence in this case tended to prove that the injured party was a four-year-old girl child, and the appellant was a 38-year-old male at the time of the alleged crime. That the appellant was seen in the bathroom with his penis in the mouth of the victim, and holding his hand on her head.

This Court is required to view the evidence in the light most favorable to the state, and not substitute its judgment for that of the jury, and when the evidence, if believed by the jury, is sufficient to sustain a verdict of guilty, it is not error for the trial court to overrule defendant’s motion for an acquittal, and for a new trial. Gullatt v. State, Ala.Cr.App. 409 So.2d 466; McConnell v. State, 429 So.2d 662 (Ala.Cr. App.1983); Stewart v. State, Ala.Cr.App. 405 So.2d 402.

After a careful review of all the evidence in this case, we hold that the court did not err to the prejudice of the appellant when it overruled appellant’s motions for an acquittal, and for a new trial.

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

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Presiding Judge.

license: Public Domain

text:
    Charles HESTER v. STATE.
    8 Div. 831.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-83.
    Bryce U. Graham, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Hester was arrested upon a rendition warrant issued by the Governor of Alabama and directing his extradition to Mississippi. He was placed in the Franklin County Jail to await extradition and from there filed a petition for writ of habeas corpus. After a hearing on the matter, his petition was denied. Two issues are raised on appeal.

I

The rendition warrant and related documents were sufficient to authorize Hester’s detention.

The rendition warrant, issued October 26, 1982, recites in pertinent part:

“Whereas, His Excellency, William F. Winter, Governor of the State of Mississippi, by requisition dated the 20th day of October, 1982, has demanded of me, as Governor of the State of Alabama, the surrender of CHARLES HESTER, who, it appears, is charged by COPIES OF INDICTMENT AND RELATED DOCUMENTS in the County of FRANKLIN in said State, with the crime of BURGLARY AND LARCENY (a duly certified copy of which COPIES OF INDICTMENT AND RELATED DOCUMENTS accompanies said requisition) and it appearing that said CHARLES HESTER has fled from justice in said State and taken refuge in the State of Alabama.”

On its face, this warrant contains the jurisdictional facts required by Sections 15-9-35, 15-9-31 and 15-9-33, Code of Alabama 1975, and therefore establishes prima facie authority for Hester’s detention. See Rayburn v. State, 366 So.2d 698 (Ala.Cr.App. 1978), affirmed, 366 So.2d 708 (Ala.1979); Peacock v. State, 48 Ala.App. 391, 265 So.2d 175, cert. denied, 288 Ala. 748, 265 So.2d 180 (1972), cert. denied, 410 U.S. 910, 93 S.Ct. 967, 35 L.Ed.2d 272 (1973).

Upon review of the requisition warrant and accompanying papers , however, it becomes apparent that the rendition warrant contains an error. Hester was actually charged with burglary and larceny in Itawamba County, Mississippi, rather than Franklin County, Mississippi. It is obvious that this is a mere clerical error having its origin in the fact that Hester was a resident of Franklin County, Alabama, at the time the rendition warrant was issued. In our judgment, this error does not affect the validity of the rendition warrant. Moreover, even serious defects in a rendition warrant may be cured by the introduction of a requisition warrant and supporting papers which show the correct facts. See Harris v. State, 257 Ala. 3, 60 So.2d 266 (1951); Martin v. State, 50 Ala.App. 1, 276 So.2d 149 (1973); State v. West, 42 Ala.App. 678, 178 So.2d 182 (1965). The error in the rendition warrant in this case was corrected by the introduction of the requisition warrant and accompanying papers which clearly showed that Hester was charged with burglary and larceny in Ita-wamba County, Mississippi.

II

Hester maintains that he was not served with the rendition warrant and related papers and therefore his incarceration in the Franklin County Jail is illegal. Section 15-9-38, Code of Alabama 1975, upon which he relies, has no bearing on this issue. That Section merely requires that, before an arrestee is delivered over to agents of the state requesting his extradition, the arrestee must be “informed of the demand made for his surrender, the crime with which he is charged, and that he has the right to demand legal counsel.” Alabama Code Section 15-9-38(a) (1975) (emphasis added). It is clear that Hester, who has not yet been delivered to the Mississippi authorities, has received the requisite information in compliance with this statute.

A rendition warrant is merely an arrest warrant issued by the Governor of this State. See Alabama Code Section 15-9-35 (1975). The language of Section 15-10-2, Code of Alabama 1975, tends to negate the existence of a requirement that an arrest warrant be served upon an arrestee. Under that statute, an arresting officer must show an arrest warrant to the person being arrested if that person so requires. Similarly, the existence of a requirement that one arrested upon a rendition warrant must be served with the related papers is negated by the following language from Johnson v. State, 261 Ala. 1, 2, 72 So.2d 863 (1954):

“(W)hile it is true that petitioner has the right to inspect the requisition and accompanying papers after demand, such demand must be reasonable as to time, place, and circumstances.”

Since an arrestee has been accorded a specific right to inspect both an arrest warrant and the documents accompanying a rendition warrant if he so requests, it follows that there is no requirement that he be served with either.

We note that there has been no showing that Hester even requested to inspect either the rendition warrant for his arrest or the related papers, much less a showing that his request was denied.

For the reasons stated above, the judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . These documents were introduced by the State at the hearing. Although their introduction is not required when a rendition warrant is facially correct, Shirley v. State, 363 So.2d 104 (Ala.1978), once they have been introduced, this Court must examine the documents to determine their sufficiency. Potts v. State, 378 So.2d 264 (Ala.Cr.App.), cert. denied, 378 So.2d 267 (Ala.1979); Rayburn, supra. Accordingly, we have examined the requisition warrant issued by the Governor of Mississippi and the attached documents, which include certified copies of the indictment charging Hester with burglary and larceny and the warrant for his arrest, and find them to be in compliance with Sections 15-9-31 and 15-9-33, Code of Alabama 1975.

      . We take judicial notice of the fact that there does exist a Franklin County, Mississippi. Consequently, the error in the rendition warrant is not apparent from its face.


author: HUBERT TAYLOR, Judge.

text:
    Scottie Tim SLEDGE v. STATE.
    8 Div. 809.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 1, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-206.
    James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was convicted of being over the age of eighteen and selling marijuana to a person who had not attained the age of eighteen, in violation of § 20-2-73, Code of Alabama 1975. Sentence was five years in the penitentiary. Three issues are presented for our review.

The first issue is whether Sledge comes within the proscription of the statute under which he was convicted. Sledge had not reached his nineteenth birthday when the offense was committed, so he questions whether he is over eighteen within the meaning of the statute.

Three Alabama cases have been found that indirectly address this issue. The first is Davis v. State, 21 Ala.App. 649, 111 So. 645, 646 (1927), in which the court said, “... from the defendant’s own testimony he became 16 years of age on the following March 21, 1926. The trial was ... on May 27, 1926_ The defendant was, therefore, over the age of 16 at the time of trial.” Both Randolph v. Kessler, 275 Ala. 73, 152 So.2d 138 (1963), and Clark v. State, 239 Ala. 380, 195 So. 260 (1940), support the interpretation that one who has passed a particular birthday is “over” the age of his last birthday. This interpretation is consistent with the legislative purpose of preventing the type of crime proscribed by the statute. We hold Sledge was properly tried under the statute.

The next issue was whether Sledge’s age was admissible. Sledge, while in custody and the focus of the investigation, answered questions about his age and identity before being given the Miranda warnings. We find that his statement concerning his age falls within the category of routine information which a law enforcement officer may obtain from an accused before advising him of his Miranda rights. Varner v. State, 418 So.2d 961 (Ala.Cr.App.1982).

The third issue involves the State’s proof of the corpus delicti. Sledge claims that his age is part of the corpus delicti and, therefore, the State was required to submit independent evidence of his age apart from his so-called extrajudicial confession, which the State failed to do. We do not agree.

Appellant’s statement was not in the nature of a confession and the need for corroboration is questionable at best. In any event, the purpose of the rule is to ensure the trustworthiness of extrajudicial admissions or confessions. To that end, the law of this State does not require proof of every element of the corpus delicti:

“[I]nconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt ... although such facts and circumstances, standing alone, would not ... satisfy the jury of the existence of the corpus delicti.” Marvin v. State, 407 So.2d 576, 579 (Ala.Crim.App.1981); see also Watters v. State, 369 So.2d 1262, 1271 (Ala.Crim.App.1978), reversed on other grounds, 369 So.2d 1272 (Ala.), on remand, 369 So.2d 1275 (Ala.Crim.App.1979).

For these reasons, the judgment of the lower court is due to be affirmed.

AFFIRMED.

TYSON, HARRIS and SAM TAYLOR, JJ., concur.

BOWEN, P.J., concurs in result only.


author: PAUL J. MILLER, Jr., Circuit Judge.

text:
    Benny Frank PARKER v. STATE.
    6 Div. 916.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 13, 1984 Alabama Supreme Court 83-305.

      J.T. Simonetti, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Billing-ton M. Garrett, Asst. Atty. Gen., for appel-lee.
   PAUL J. MILLER, Jr., Circuit Judge.

Appellant, Benny Frank Parker, was indicted by the Grand Jury of Jefferson County for the offenses of burglary in the third degree and receiving stolen property in the first degree. After entering a plea of guilty, the appellant was placed on probation.

Appellant’s parole officer filed a delinquency report in April, 1982 and appeared before the trial court for a revocation hearing on May 7, 1982.

At the revocation hearing, the attorney for the appellant made a motion for a continuance due to the absence of a subpoenaed witness. After appellant’s counsel made a statement as to what the witness’s expected testimony would be, the motion for continuance was denied.

The sole question presented for review upon this appeal is whether the trial court erred in refusing to grant a continuance because of the absence of a subpoenaed witness.

The record of the instant proceedings reflects that the attorney for appellant made a showing to the court of what he expected the witness to say at the time of this hearing.

There was no showing made to the court that any effort was made on behalf of the appellant or his counsel to secure the appearance of this witness other than by subpoena, although the witness had been a friend of the appellant all of appellant’s life.

Further, there was no showing by the appellant or his counsel that there was a probability that the testimony of this witness, McKinzey Lauderdale, could be obtained in the future. There was evidence presented to the court that the missing witness was himself on probation. It was shown that appellant had the same probation officer as the witness, and it was also shown that the witness was with the appellant at the time the circumstances arose that led to appellant’s revocation hearing. In the case of Dickerson v. State, 362 So.2d 1322 (Ala.Cr.App.1978), this court stated that:

“A continuance of a criminal case by reason of the absence of some defense witnesses is left to the sound discretion of the trial court and is not reversible on appeal unless clear abuse of discretion is positively shown.”

As guidelines to the trial court, we said in Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied, 291 Ala. 772, 286 So.2d 72 (1973):

“To warrant a continuance, the courts have agreed: (1) that the expected evidence must be material and competent; (2) that there must be a probability that the testimony can be obtained at a future time; (3) that due diligence must have been exercised to secure the evidence.”

Since a review of the entire record fails to reflect an abuse of discretion on the part of the trial judge in denying the continuanee, the judgment of the lower court is hereby affirmed.

The foregoing opinion was prepared by Hon. PAUL J. MILLER, Jr., Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Willie James HALL v. STATE of Alabama.
    3 Div. 902.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Willie James Hall, pro se.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Willie James Hall appeals to this court from the denial of his Petition for Writ of Error Coram Nobis by the Circuit Court of Montgomery County, Alabama. Petitioner seeks to challenge his conviction based upon a guilty plea and life sentence imposed in circuit court. The trial court in this cause made the following findings which we do hereby affirm:

“Petitioner alleges that his guilty plea on April 5, 1983 to the offense of Escape I was unintelligently and involuntarily given due to ineffective assistance of counsel. As a result of said guilty plea, Petitioner was sentenced to life in the penitentiary by this Court on April 20, 1983. Petitioner contends that his court-appointed attorney advised him that if he would plead guilty to Escape I a deal could be worked out with the District Attorney whereby Petitioner’s present 40 year sentence could be made to run concurrent with the life sentence to be imposed by Judge Phelps.
“Petitioner contends that at sentencing on April 20, 1983 the Court ordered Petitioner to life in the penitentiary and at that time Mr. Davis informed the Court of the agreement worked out between Petitioner and the District Attorney’s office. Petitioner further contends that the Court refused to listen to such an agreement and refused to honor the deal. As a result Petitioner’s two sentences are to run consecutively. Petitioner therefore alleges that his guilty plea was unintelligently and involuntarily given due to ineffective assistance of counsel.
“Petitioner further claims that under the ruling in Santobello v. N.Y., supra (1971), 404 U.S. 257, 925 [92] Ct. 495, 30 L.Ed.2d 427, the district attorney was bound by his agreement once a deal had been made.
“The Court finds for the following reasons that Petitioner’s allegations are without merit. First, upon review of the Court’s records, the Court finds that the following transpired between thé Court and the Petitioner at Petitioner’s April 5, 1983 guilty plea:
‘The Court: Are you satisfied with his (Mr. Davis) representation of you? ‘Petitioner: Yes sir.
‘The Court: Is he doing you a good job?
‘Petitioner: Yes sir.
‘The Court: Did anybody tell you it would go easier on you or lighter on you or this Court would be bound to give you a lesser sentence — that the Court would be bound to grant you any favors or anything at all to get you to say that you are guilty? ‘Petitioner: No sir.
‘The Court: Tell me how you plead. ‘Petitioner: Guilty.’
“Based on the above colloquy the Court finds that the Petitioner understood his rights and that he knowingly and freely gave up his rights.
“Secondly, the Court has reviewed the transcript involving Petitioner’s sentencing on April 20, 1983, and finds that the following conversation took place among the Court, the Petitioner and Mr. Terry Davis:
‘Mr. Davis: At the time he (Petitioner) pled guilty, he realized the sentence he is facing. He is presently serving forty years and it is my understanding that the District Attorney does not oppose running any current sentence imposed with the sentence he is presently serving.
‘The Court: All right. Anything else?
‘Petitioner: No, sir.
‘The Court: Based on the habitual offender law, have you got anything to say why the sentence of law should not now be imposed on you?
‘Petitioner: No, sir.
‘The Court: Under the habitual offender law, the Court sentences the Defendant to life in the penitentiary. Mr. Davis, I think with his record, I am going to stop with that. He has an awful record.
‘The Court: All right.
‘Mr. Davis: Is that consecutive?
‘The Court: It is just what I said.
‘Mr. Davis: Yes, sir.’
“This Court was not a party to the agreement and did nothing to lead the Petitioner to enter into any agreement or make the plea. In fact, this Court emphasized in advising the Petitioner of his rights that he was not bound by any agreement as to the length of sentence and further advised him with regard to the minimum and maximum sentence which could be expected. This Court further informed Petitioner that the Court was not bound by any agreement regarding his sentencing, prior to the Court’s acceptance of his guilty plea. See Seagroves v. State, 53 Ala.App. 481, 301 So.2d 245 (1974).
“For the reasons stated herein the Court is of the opinion that the said Petition is due to be dismissed. It is, therefore,
“ORDERED, ADJUDGED and DECREED by the Court that the Petition for Writ of Error Coram Nobis heretofore filed, be and the same is hereby DISMISSED.
“DONE this the 16th day of August, 1983.
/s/ Joseph D. Phelps CIRCUIT JUDGE”

I

We have carefully reviewed this record and find no error. The appellant’s contention that he was denied effective assistance of counsel is utterly without legal merit. Trammell v. State, 420 So.2d 855 (Ala.Cr. App.1982) and authorities therein cited. See also Clency v. State, 442 So.2d 148 (Ala.Cr.App.1983).

The judgment of the trial court is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Petitioner, v. Lark Lynette LAMBERT, Respondent.
    No. 63396.
    Supreme Court of Florida.
    Dec. 8, 1983.
    Rehearing Denied Feb. 13, 1984.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, and Richard A. Sherman of the Law Offices of Richard A. Sherman, Fort Lauderdale, for petitioner.
    McClure & Gay, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Fourth District Court of Appeal reported as Lambert v. Prudential Property and Casualty Insurance Co., 426 So.2d 1194 (Fla. 4th DCA 1983). We find direct conflict with Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla.3d DCA 1982); Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980); State Farm Mutual Automobile Insurance Co. v. Wimpee, 376 So.2d 20 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980); and State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

We have resolved this conflict in our decision in New Hampshire Insurance Group v. Harbach, 439 So.2d 1383 (Fla. 1983). For the reasons expressed in that decision, we quash that part of the district court’s decision in the instant case which reversed the final summary judgment finding that Prudential did not afford uninsured motorist coverage to respondent.

It is so ordered.

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

ADKINS, J., dissents.


author: ADKINS, Justice. McDONALD, Justice,

text:
    ALBRECHT, George, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 61600.
    Supreme Court of Florida.
    Jan. 12, 1984.

      Lee S. Damsker, of Maney & Damsker, Tampa, for petitioners.
    Mary F. Smallwood, Gen. Counsel, Alfred W. Clark, Deputy Gen. Counsel, and Henry Dean, Tallahassee, for respondents.
   ADKINS, Justice.

We have before us for discretionary review Albrecht v. State, 407 So.2d 210 (Fla. 2d DCA 1981), which is in direct conflict with Dade County v. Yumbo, 348 So.2d 392 (Fla. 3d DCA), cert. denied, 354 So.2d 988 (Fla.1977). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The petitioners, Albrecht and Schindler, as predecessors in title purchased some 300 feet of submerged land from the Trustees of the Internal Improvement Trust Fund of the State of Florida. The land had become submerged due to erosion and the title had revested in the State of Florida. The petitioners desired to fill and bulkhead 2.3 acres of submerged land which included the above-mentioned 300 feet. They applied to the Pinellas County Water and Navigation Control Authority to fill 'and bulkhead. The application was approved subject to further approval by the Board of Trustees of the Internal Improvement Trust Fund.

The petitioners applied for water quality certification by the Department of Pollution Control and that application was denied. They filed a petition for review and, as a result of reorganization of the state environmental agencies, the petition was transferred to the Department of Environmental Regulation. A hearing ensued after which the hearing officer recommended an affirmance of the denial. The department adopted the recommendation and the denial was thereafter affirmed by the Board of Trustees of the Internal Improvement Trust Fund.

Petitioners, pursuant to the Administrative Procedure Act, section 120.68, Florida Statutes (1981), filed a petition with the First District Court of Appeal in which they challenged the facial constitutionality of section 253.124, Florida Statutes (1981). That petition was denied as was a petition for writ of certiorari to this Court. Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1210 (Fla. 1978).

The petitioners then filed suit against the State of Florida in the Circuit Court of Pinellas County. They allege that as a result of the permit denial they have been unable to put their property to any use and therefore, it has been taken without compensation in violation of the fifth and fourteenth amendments of the United States Constitution as well as article X, section 6; article I, section 9; and article I, section 21 of the Florida Constitution. They requested that the court make the property the subject of inverse condemnation and fix an amount to be paid to petitioners as compensation. The circuit court entered judgment on the pleadings against petitioners relying on Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979), and the doctrine of res judica-ta. The Second District Court of Appeal affirmed the judgment as well as the rationale of the trial court. In Coulter the court held that the petitioners could have argued the issue of a taking of their property in the proceedings before the First District Court of Appeal and that they did not do so is irrelevant to the application of res judicata. In addition, the court held that the claim for inverse condemnation was an impermissible collateral attack upon a prior agency action. Albrecht, 407 So.2d at 211.

The petitioners argue that in light of Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982), they are permitted to bring an action for inverse condemnation in the circuit court. In that case the petitioner applied for a dredge-and-fill permit from the Department of Environmental Regulation and the application was denied. The petitioner did not seek administrative review pursuant to section 253.76, Florida Statutes (1981), followed by appeal to the district court. Instead, Key Haven filed suit in circuit court alleging that the denial of the permit was proper but still constituted a taking of its property by inverse condemnation. This Court held that the property owner in such a case must exhaust administrative appeals as to the propriety of the action first, but then has a choice as to where to bring the taking issue. The party can raise the claim in direct review before the First District Court of Appeal or accept the agency action as proper and file suit for inverse condemnation in circuit court. The petitioners here argue that it makes no difference whether, after executive branch appeal on the propriety of the denial is exhausted, the party accepts the denial as proper and then brings an action for inverse condemnation in circuit court, as Key Haven provides, or it does so after all executive branch and judicial appeals on the propriety of the denial have been exhausted, as in the present case. Although the petitioners never voluntarily accepted the agency action as proper, they argue that it should make no difference because, either way, the matter is settled. The action has been determined proper by the parties involved in one instance and by the judiciary in the other. In addition, the petitioners argue that res judicata should not apply when it would work an injustice such as it would in this case.

The respondents contend that the Key Haven decision was based on the policy of exhaustion of administrative remedies whereas this case was dismissed below on the basis of res judicata. Also, under Key Haven the petitioners were foreclosed from bringing an action in circuit court for inverse condemnation when they chose to appeal the propriety of the agency action in the district court. They argue further that because the petitioners could have raised their claim of an unconstitutional taking in the district court but did not, they are now barred from raising it in circuit court by the doctrine of res judicata. Finally, the doctrine would not work an injustice in this case nor would the state be unjustly enriched.

We disagree with the judgments of the circuit and district courts as to both the outcome and the basis for those decisions. Those courts expressly relied on the Coulter case to reach their decisions. We find that the application of the doctrine of res judicata was erroneous in that case as well as in the instant one. In Coulter the appellant had requested permission from the Hillsborough County Environmental Protection Commission to partially fill a pond. The commission denied the request pursuant to the Hillsborough County Environmental Protection Act, chapter 67-1504, Laws of Florida, which empowered it to regulate water pollution. Appellant did not file a petition for review of the denial with the district court. Instead, it brought suit in circuit court maintaining, among other things, that the denial amounted to a taking of property without just compensation. The trial judge dismissed the complaint on the basis of lack of subject matter jurisdiction. The district court held that, insofar as the taking issue was concerned, it could have been resolved in a district court review of the commission’s action in denying permission to fill. Therefore, those issues are foreclosed by the doctrine of-res judica-ta. The court stated:

We believe that the answer to the question should be determined by application of the principle of res judicata; those constitutional issues which could have been raised by the party in a petition to the district court of appeal for review of an agency action are foreclosed and may not be subsequently asserted in a suit for relief brought in circuit court.

373 So.2d at 425. The court reached the above conclusion after noting that section 120.68(12)(c), Florida Statutes, specifically provides that on judicial review of agency action by a district court of appeal, the court shall remand the case to the agency if it finds that the agency’s action is in violation of a constitutional provision. Id. at 427.

The district court has presumed that because the statute allows such an issue to be brought before the district court on review of agency action, that it is mandating that it be brought only there. We do not believe that was the legislature’s intention. It is too broad a leap to take the words of a statute which provide for remand if the action is found to be in violation of the constitution and interpret them to mean that any constitutional issue must be raised there or be forever barred. The district court’s reasoning is further belied by the subsequent enactment of section 253.763, Florida Statutes (Supp.1978), which provides a means of bringing a taking without compensation issue in circuit court.

The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as every actually litigated, issue. Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952); Lake v. Hancock, 38 Fla. 53, 20 So. 811 (1896). However, this principle only applies when the elements of res judicata are present and the doctrine is properly applied. Gordon, 59 So.2d at 43. Where the second suit is upon the same cause of action and between the same parties as the first, res judicata applies. The first judgment is conclusive as to all matters which were or could have been determined. Id. at 44; Prall v. Prall, 58 Fla. 496, 50 So. 867, 870 (1909). It has been well settled by this Court that several conditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953) (cases cited). It is also a settled rule that when the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it. Gordon, 59 So.2d at 43. Therefore, if the cause of action is not the same there will be no estoppel as to those issues which could have been litigated in the previous action. The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions. Gordon; Prall; Lake.

We find that in the instant case the petitioners’ claim of uncompensated taking constitutes a separate and distinct cause of action from that litigated previously. In the first action the petitioners were challenging the propriety of the agency’s actions. The determination, judicially or otherwise, that the action was proper under the applicable statute does not necessarily also determine that there is no taking, nor does it necessarily bar the valid exercise of police power. It is a settled proposition that a regulation or statute may meet the standards necessary for exercise of the police power but still result in a taking. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.) cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). In addition, the facts necessary to maintain the taking action are different. There must be a diminution in value of the property as well as a lack of alternative uses. See Pennsylvania Coal Co. and Estuary Properties. Under a constitutionally valid statute providing for protection of the public welfare, those facts are irrelevant to the determination of propriety of the agency action. The first duty of the agency is to protect the public in compliance with the law, whether or not that results in inability to use the property. Neither the doctrine of res judicata nor estoppel by judgment apply to this case because the second cause of action is not the same as the first and the issues now presented were not actually litigated in the previous proceedings. It is unnecessary for us to determine whether it would be fair to apply res judicata in this case since that issue presumes proper application of the doctrine in the first place.

Permitting the petitioners to bring their claim in circuit court does not conflict with our decision in Key Haven. In that case we provided alternative methods of bringing a claim of inverse condemnation once all executive branch review of the action has been completed. Direct review in the district court of the agency action may be eliminated and proceedings properly commenced in circuit court if the aggrieved party accepts the agency action as proper. Key Haven, 427 So.2d at 159. The point is that the propriety of the agency action must be finally determined before a claim for inverse condemnation exists. In Key Haven we merely provided an alternative to direct review for those parties who wish to accept the propriety of the action. This was not meant to extinguish the property owner’s right to bring the separate claim of inverse condemnation in circuit court at the conclusion of all judicial as well as executive branch appeals regarding propriety of the action. Whether the party agrees to the propriety or it is judicially determined is irrelevant. In either case the matter is closed and a claim of inverse condemnation comes into being. We emphasized that once a party agrees to the propriety of the action and chooses the circuit court forum, it is estopped from any further denial that the action itself was proper. Id. at 160. This is not to say that once a party chooses to litigate the propriety of the action through the district court that it is estopped from bringing a claim of inverse condemnation in circuit court.

Having found the doctrine of res judicata improperly applied to this case, we quash the decision of the Second District Court of Appeal and remand with instructions to order the circuit court to conduct proceedings consistent with this opinion.

It is so ordered.

BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

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

McDONALD, Justice,

dissenting.

I dissent because I am unable to perceive any conflict between the opinion of the district court in this case and Dade County v. Yumbo, 348 So.2d 392 (Fla. 3d DCA 1977), or any other decisions of another district court of appeal or of the supreme court. Hence, I find no jurisdictional basis to entertain this matter.

Should I be able to reach the merits, I would concur.

ALDERMAN, C.J., concurs.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Donald WILLIAMS, Respondent.
    No. 62387.
    Supreme Court of Florida.
    Jan. 12, 1984.

      Jim Smith, Atty. Gen., Taliahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for petitioner.
    James B. Gibson, Public Defender, Day-tona Beach, and Brynn Newton, Asst. Public Defender, Daytona Beach, for respondent.
   ADKINS, Justice.

This cause is before us on a petition to review the decision of the Fifth District Court of Appeal in Williams v. State, which is reported at 416 So.2d 493 (Fla. 5th DCA 1982). This decision conflicts with Fonts v. State, 374 So.2d 22 (Fla. 2d DCA 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

The respondent, Donald Williams, was charged, tried and convicted of escape in violation of section 944.40, Florida Statutes (1979), in the circuit court of Marion County, Florida. At the close of the prosecution’s case in the trial court, William’s defense counsel sought acquittal for the escape alleging that while the state proved custody, it never proved the validity of the pre-custodial arrest. This motion was denied. On appeal the district court considered the issue of whether the motion for acquittal should have been granted and reversed the trial court. The district court stated:

It was necessary for the state to prove, as an essential element of the crime of escape, that the accused was in “lawful custody” as that term is defined in the above statutes. The requisite quantum of proof in a criminal case is “proof beyond and to the exclusion of reasonable doubt.” The state, merely by a showing of custody, even though such showing may support a reasonable inference of lawful custody, has not met the test to support a criminal conviction.

416 So.2d at 494 (citations omitted).

The district court’s determination that proof that the accused was in “lawful custody” is an essentia] element of the crime of escape was based on its reading of two statutes. Section 944.40 provides:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The punishment of imprisonment imposed under this section shall run consecutive to any former sentence imposed upon any prisoner.

The district court then looked to the definition of the word “prisoner” as supplied by section 944.02, Florida Statutes (1979):

(5) “Prisoner” means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department, as provided by law.

The district court found that the evidence presented by the state at the trial level showed only that the defendant was confined in the jail as evidenced by the jail log and that he had been transported from the jail to the hospital emergency room when the alleged escape occurred. The court concluded that this evidence was insufficient to support a criminal conviction and reversed the judgment of conviction for escape.

The petitioner, the State of Florida, argues that once the state proved Williams was a prisoner, carried on the log as such, booked, and wearing prison garb, it had proved Williams was a “prisoner” as required by section 944.40. The next step, the state contends, was for Williams to show that he was not a prisoner, but was being kept unlawfully. The state relies on Judge Cowart’s assessment in his dissenting opinion that Baeumel v. State, 26 Fla. 71, 7 So. 371 (1890), controls. That case says:

[I]f there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or subsequent statute, that is matter of defense, and is to be shown by the other party.

26 Fla. at 75, 7 So. at 372.

The state further maintains that Fouts v. State, 374 So.2d 22, 24 (Fla. 2d DCA 1979), precludes the state from showing the circumstances of William’s confinement because of the possible prejudice which would result from introduction of the details of the nature of his arrest. In Fouts, the appellant’s status as a prisoner with respect to section 944.40 arose from the fact that he had been convicted of a crime, sentenced and committed to a state correctional institution. Therefore, the fact of his prior conviction was held to be an essential element of the charge of escape. The Fouts court adopted the reasoning of the United States Court of Appeals for the Fifth Circuit in United States v. Spletzer, 535 F.2d 950 (5th Cir.1976), and stated that the state should have proceeded in one of two ways to avoid potential prejudice to a defendant charged with the offense of escape: it could accept the offer of the defendant to admit or stipulate to the fact he had been previously convicted of a federal crime, or the prosecution could introduce into evidence a certified copy of the prior judgment of conviction. 374 So.2d at 25.

The instant case deals with actions of the respondent, Williams, which are prior to any judgment of conviction. Nevertheless, the concerns which prompted the decision in Fouts are applicable. The appellant would undoubtedly be prejudiced by the introduction of the required proof of the details of the nature of his arrest.

We must conclude that the majority opinion of the district court is incorrect and requires an unreasonable burden on the part of the state. We agree with Judge Cowart’s belief, expressed in his dissenting opinion, that the element of custody was not intended by the legislature to invariably require proof of the technical correctness of the circumstances underlying the original arrest of the prisoner, such as the validity of any warrant or compliance with the details of statutes, such as section 901.15, Florida Statutes (1981), which permits arrests by officers without a warrant. Because the statute defining the crime of escape does not contain the qualifying adjective “lawful” before the word “custody,” the legislative intent in placing the word “lawful” in the definition of “prisoner,” which is contained in the midst of a chapter of the statutes dealing primarily with the administration of the state correctional system, is not clear. We think the most reasonable interpretation and that which best serves the ends of justice is that the unlawfulness of the confinement is an affirmative defense to be raised by the defendant. See Baeumel, 26 Fla. at 75, 7 So. at 372. We feel the presumption of lawful custody exists when the state proves that the person is confined in any “prison, jail, road camp, or other penal institution ... working upon the public roads, or being transported to or from a place of confinement.” § 944.40, Fla.Stat.

The important factor in determining the validity or constitutionality of a presumption contained in a criminal statute is the reasonableness of the relationship between the presumed fact and the proven fact from which it is presumed. There must be some rational connection between the fact proven and the ultimate fact presumed. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). The jury determines the inferential connection and measures the strength and reasonableness of any rational connection. We agree with Judge Cowart again, who states the following in his dissent:

The question in this case is whether it is reasonable to infer from proof of the fact that a person is actually confined as a prisoner in a legitimate prison or jail or is in the actual custody of a genuine law enforcement officer as his prisoner that such prisoner is in “lawful” custody. The jury made that inferential deduction in this case. Since it was based on a logical and probable connection with the antecedent fact, I decline to hold that the jury was unreasonable, as a matter of law, in doing so. I am aware that other district courts have held to the contrary in similar situations. Two such cases are Abbott v. State, 326 So.2d 204 (Fla. 1st DCA 1976), and Maggard v. State, 226 So.2d 32 (Fla. 4th DCA 1969). However, I feel those opinions and the majority opinion invade the province of the jury.

416 So.2d at 496-97.

The trial court correctly denied the petitioner’s motion for judgment of acquittal. Accordingly, we quash the decision of the district court and remand same with instruction to affirm the conviction.

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


author: BOYD, Justice.

text:
    Maurice DeSHA, et al., Appellants, v. CITY OF WALDO, Appellee.
    No. 63681.
    Supreme Court of Florida.
    Jan. 12, 1984.

      Peter Skoro, Gainesville, for appellants.
    William E. Whitley, Gainesville, for ap-pellee.
   BOYD, Justice.

This case is brought to us by appeal from a judgment of validation of municipal bonds. We have jurisdiction. Art. V, § 3(b)(2), Fla. Const.; § 75.08, Fla.Stat. (1981). Because none of the appellants’ arguments demonstrates a sufficient ground to warrant reversal, we affirm.

The City of Waldo instituted these proceedings by filing a complaint seeking validation of municipal bonds in the amount of $595,200 and bond-anticipation notes in an equal amount. The proceeds of the proposed municipal borrowing are to be used to partially finance the improvement and expansion of the City’s water supply and waste water collection and treatment systems. The City expects to receive a grant from the United States Farmers Home Administration to pay the remainder of the project costs. In addition to the grant, the Farmers Home Administration is to provide the City with a loan to finance the development and construction of the project, the indebtedness to be evidenced by the bond-anticipation notes referred to above. The bond-anticipation notes will be payable from the proceeds of the issuance of the bonds themselves, which will thus serve as the long-term financing.

The bond issue is proposed under the authority conferred by chapter 166, part III, Florida Statutes (1981). The proposed project contemplates that the bonds will be payable from the net revenue of the City’s water and sewer system, from certain municipal excise taxes, and from the guaranteed entitlement portion of the City’s income from state revenue sharing under chapter 218, part II, Florida Statutes (1981) and Florida Statutes (Supp.1982). Thus the bonds proposed to be issued are “revenue bonds” within the meaning of section 166.-101(4), Florida Statutes (1981). The bonds are not payable from ad valorem tax revenues; bondholders will not have a lien on the general revenue of the City nor on the facilities to be constructed, but only on the specific revenues pledged. With regard to each of these revenue sources, the pledge of and lien upon the revenues are to be subordinate to the pledge of and lien upon the same revenues arising from prior water and sewer revenue bonds issued in 1965.

Following the filing of the state attorney’s answer to the complaint, a group of interested citizens and taxpayers of the City asked for and were granted leave to intervene in defense against the City’s complaint. The defendants-intervenors then answered the complaint. The court held a hearing and, overruling the objections of the' intervenors, issued a final judgment validating the bonds and notes. The intervening citizens are pursuing the present appeal.

The appellants contend that it was improper for the trial court to validate bonds for expansion of the water and sewer system when there was no mandatory water and sewer connection ordinance in effect. Appellants reason that because such a mandatory use ordinance will be necessary in order to generate sufficient revenues to meet the bond obligations, the existence and validity of the ordinance are matters that must be established as a condition precedent to judicial approval of the municipal borrowing. Appellants further argue that such an ordinance will inevitably need to be adopted because it is required by the City’s agreement with the Farmers Home Administration.

The appellants’ argument pertains to a matter to be resolved by future decision-making on the part of the City in operating and governing its expanded water and sewer system. As such it is a collateral matter beyond the scope of judicial scrutiny in bond validation proceedings. See City of Gainesville v. State, 366 So.2d 1164 (Fla.1979). The appellants say that a mandatory connection ordinance is subject to being challenged on numerous substantive and procedural grounds and that, if the City adopts a substantively invalid ordinance or departs from procedural regularity in enacting the ordinance, the financial viability of the project will be undermined. The financial strength of the project, however, is not a matter within the scope of this Court’s review. Our review is limited to the questions of “whether the issuing body has the power to act and whether it exercised that power in accordance with law.” Town of Medley v. State, 162 So.2d 257, 259 (Fla.1964). The fact that prospective bond purchasers might find the project questionable because of the lack of a valid mandatory connection ordinance is not a matter of judicial concern in a bond validation proceeding. “It was never intended that proceedings instituted under the authority of this chapter to validate governmental securities would be used for the purpose of deciding collateral issues or those issues not going directly to the power to issue the securities and the validity of the proceedings with relation thereto.” State v. City of Miami, 103 So.2d 185, 188 (Fla.1958). The appellants’ reliance on Thompson v. Town of Frostproof, 89 Fla. 92, 103 So. 118 (1925), is misplaced because that case arose in a different context and is distinguishable. Even if the need for a mandatory connection ordinance were relevant to our review, we would presume that the city will enact a valid ordinance.

The appellants also argue that a connection ordinance should be adopted and judicially examined because if the future revenues of the system are insufficient to pay the bonds, the City will have to devote ad valorem tax revenues to their payment, thus rendering the bond issue unconstitutional without referendum under article VII, section 12, Florida Constitution. This argument is without merit. The mere possibility that the City may some time in the future choose to expend general revenue to meet its bond obligations does not render the bonds “payable from” ad valo-rem taxation. See Tucker v. Underdown, 356 So.2d 251 (Fla.1978); Town of Medley v. State.

Appellants’ next argument is that the trial court erred in validating the bonds on the asserted ground that the City’s bond resolution has the effect of amending the 1965 bond issue ordinance and pledges additional revenue to the payment of the bonds issued in 1965. We find the argument to be without merit. The bond resolution, in pledging the City’s guaranteed entitlement from state revenue sharing to the payment of the bonds, subordinated that pledge to the pledge and lien of the 1965 bonds. This was not a pledge of additional revenue to the 1965 bonds but was merely in fulfillment of contractual obligations already owed to the holders of the 1965 bonds. The resolution quite properly protects the legal rights of the prior bondholders. The cases cited by appellants for the proposition that a municipal ordinance may not be amended by resolution have no application to this case.

An additional challenge put forth by the appellants is that the trial court improperly excluded their proffered evidence concerning the necessity for and reasonableness of the project. Appellants also contend that the court erred in denying them a continuance for the purpose of developing further evidence on these issues. In summary, the appellants say that their evidence would have shown that the proposed project is not reasonably related to the health, safety, and welfare of the people of the City of Waldo. They argue that the expansion project is unnecessary, that the future mandatory connection ordinance will arbitrarily restrict property rights, and that the purpose of the project is to promote the growth and development of the City. We reject the appellants’ arguments because the question of the need for expansion and improvement of Waldo’s water and sewer system is a matter to be determined by the governing body of that community. In Town of Medley v. State, 162 So.2d 257 (Fla.1964), this Court said:

We have consistently ruled that questions of business policy and judgment incident to the issuance of revenue issues are beyond the scope of judicial interference and are the responsibility and prerogative of the governing body of the governmental unit in the absence of fraud or violation of legal duty. State v. City of Daytona Beach, 1934, 118 Fla. 29, 158 So. 300; State v. Florida State Turnpike Authority, Fla.1961, 134 So.2d 12, and State v. Dade County, Fla.1962, 142 So.2d 79.
In State v. Dade County, supra, Mr. Justice Drew speaking for this Court explained that the courts do not have the authority to substitute their judgment for that of officials who have determined that revenue certificates should be issued for a purpose deemed by them to be in the best interest of those whom they represent. The responsibility of the courts in such proceedings is primarily that of determining whether the issuing body has the power to act and whether it exercised that power in accordance with law.
A contrary holding would make an oligarchy of the courts giving them the power in matters such as this to determine what in their opinion was good or bad for a city and its inhabitants thereby depriving the inhabitants of the right to make such decisions for themselves as is intended under our system of government.

162 So.2d at 258-59. Under these principles, we are persuaded by the City’s argument that the appellants, as citizens who oppose the project on policy grounds, are merely seeking a second hearing in this Court of policy matters already decided, after proper public hearings and discussion, by the City Council of Waldo. We therefore reject the appellants’ last argument.

Finding that the City has the authority to issue the proposed bonds, that it has followed proper procedures in adopting the bond resolution, and that all the appellants’ arguments concern either collateral or legislative policy matters, we affirm the judgment of validation.

It is so ordered.

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


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Lawrence H. HIPSH, Sr., Respondent.
    No. 64572.
    Supreme Court of Florida.
    Jan. 12, 1984.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and Mary Ellen Bateman, Bar Counsel, Tallahassee, for complainant.
    Barry Z. Rhodes, Pensacola, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline for respondent’s violations of The Florida Bar Integration Rule 11.02(4)(c)(3) and Disciplinary Rules 9-102(B) and 1-102(A)(4) of the Code of Professional Responsibility. We approve the consent judgment, and we hereby enter a public reprimand against the respondent, Lawrence H. Hipsh, Sr., for these violations. ' The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $532.12 are hereby taxed against the respondent.

It is so ordered.

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


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Scott P. REEVES, Appellee.
    No. 82-962.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1983.
    Rehearing Denied Jan. 20, 1984.
    Jim Smith, Atty. Gen., Tallahassee, The-da James Davis and Katherine Blanco, Asst. Attys. Gen., Tampa, for appellant.
    Davis G. Anderson, Jr., Tampa, for appel-lee.
   HOBSON, Acting Chief Judge.

The state appeals an order granting Scott Reeves’ motion to dismiss an information with prejudice. The motion was granted on the apparent ground that, due to improper action on the state’s part, a confidential informant-eyewitness who participated in the alleged crime is choosing to invoke the Fifth Amendment privilege against self-incrimination rather than testify in the case. We reverse and remand.

The state filed an information charging Reeves and one Dennis Gonzalez with trafficking in methaqualone in violation of sections 777.011 and 893.135(l)(e), Florida Statutes (1981). Hillsborough County Sheriffs Office Detective Donald Roman prepared a criminal report affidavit stating that Reeves and Gonzalez had delivered 5,000 methaqualone tablets to him on January 20, 1981, in exchange for $6,250.

Reeves filed a motion requesting the state to disclose the identity of a particular confidential informant (Cl). He alleged in the motion that disclosure of the CI’s identity would be “relevant and helpful” to his defense; that the Cl was an “active participant in the alleged offense”; and that, other than Officer Roman, the Cl was the only witness to the alleged drug transaction. Upon the state’s application, the trial court issued a writ of habeas corpus ad testificandum commanding the release of the Cl, one Manuel Paleaz, from the Zeph-yrhills Correctional Institute.

Paleaz, who has not been granted immunity by the state in this case, was produced by the state at an in camera proceeding. The following conversation transpired at this hearing:

THE COURT: ... Mr. Eberhart [Assistant State Attorney], it is not your intention to call Manuel Paleaz as a witness in this matter?
MR. EBERHART: No, sir, it is not.
THE COURT: He was the confident [sic] informant involved in the arrest in this case against Mr. Reeves but he refuses at this time to testify?
MR. EBERHART: That is correct, Your Honor.
THE COURT: Mr. Moore [Reeves’ counsel], you want to add anything to it?
MR. MOORE: Your Honor, I think the record should reflect here the confidential informant refuses to testify based upon unkept promises made to him based upon the fact that he was promised by the detective who was working with him that he would not be disclosed nor be required to testify, and consequently, I also am deprived of the use of this man as a witness for any exculpatory information he might have as a result of misconduct on the part of the State.
Perhaps it would be advantageous at this time to bring him in here and see if he will address those issues on the record.
THE COURT: He is also raising the issue of Fifth Amendment rights which the State is not in the position to grant him in other jurisdictions and that would hold true for yourself. If you called him as a witness he would have that same right to do. If you want to call him in here and have him exercise his Fifth Amendment rights I think he would be in a position to do so.
MR. MOORE: I would like to do that, Your Honor.
THE COURT: Bring him in, please.
(Mr. Paleaz enters the chambers.)
THE COURT: Mr. Ficarrotta, you representing Mr. Paleaz in regard to this matter?
MR. FICARROTTA: For the record, I do represent him.
THE COURT: We are here in the interest of Scott Reeves. It is a trafficking in methaqualone case, Case Number 81-575. Mr. Paleaz was to be called as a witness by the State. It is my understanding that he does not wish to testify.
MR. EBERHART: That is correct, Your Honor.
THE COURT: Is that correct, Mr. Pa-leaz?
MR. PALEAZ: Yes, I don’t want to testify.
MR. MOORE: Your Honor, may I inquire?
THE COURT: Yes, sir.
MR. MOORE: Is your reluctance to testify based in part upon promises made to you by Detective Roman to the effect that you work with them you would never have to testify and your identity would never be disclosed?
MR. FICARROTTA: May I have a minute, Judge?
THE COURT: All right.
(Mr. Ficarrotta confers with Mr. Pa-leaz off the record.)
PALEAZ: I would rather not answer any questions. I would rather rest on the Fifth Amendment.
MR. MOORE: Thank you very much.
THE COURT: All right, sir. That is all we need from you.
(The hearing was concluded.)

Thereafter, Gaspar Ficarrotta, Paleaz’ appointed counsel, was deposed. Ficarrot-ta testified that he had met with Paleaz and Officer Roman at the county jail several weeks before the date of the in camera hearing. Ficarrotta stated that at this meeting Officer Roman and Paleaz had discussed Officer Roman’s promise of “some years back” that if Paleaz worked as a Cl his identity would not be disclosed and he would not be required to testify. According to Ficarrotta, Officer Roman “concurred that that was the agreement” and “that if it came down to testifying or dropping of the case that the detective [Roman] would drop the cases.” When asked if this was a factor in Paleaz’ decision to invoke the Fifth Amendment, Ficarrotta, asserting the attorney-client privilege, refused to answer.

Reeves subsequently filed his motion to dismiss the information with prejudice, claiming that Paleaz’ decision to raise the Fifth Amendment rather than testify for the state or the defense had resulted directly from Officer Roman’s “improper and illegal” inducement. He asserted in an accompanying memorandum of law that Officer Roman’s promise, imputed to the state, had deprived him of his due process right “to face and confront all witnesses against him, and ... [to have] access to testimony and information necessary to the presentation of his defense.” The state filed a response to the motion which denied Reeves’ claim that Officer Roman’s promise was the reason for Paleaz’ decision to assert the Fifth Amendment. It also said therein that it was not obliged to produce a witness to testify for the prosecution. Further, it contended in its reply that a dismissal would be improper inasmuch as Reeves had not demonstrated that Paleaz would testify in a material manner about a specific defense.

The court below held a brief hearing on Reeves’ motion to dismiss. The state submitted at this hearing that Paleaz’ actual reason for refusing to testify was a fear for his personal safety. The court concluded the hearing by ruling in favor of the motion without comment. Thereafter, it rendered a summary order granting the motion.

On appeal, the state essentially raises the same arguments which it presented in response to Reeves’ motion to dismiss. Meanwhile, Reeves again maintains that the state, through Officer Roman’s promise to Paleaz, deprived him of due process of law.

Given the above-quoted portion of Reeves’ memorandum of law which he submitted below in support of his motion to dismiss, his due process claim seemingly stems mainly from the confrontation and compulsory process clauses of both the Sixth Amendment to the federal constitution and Article I, Section XVI, of the 1968 Florida Constitution. Article I, Section XVI, provides that “in all criminal prosecutions the accused ... shall have the right[s] to have compulsory process for witnesses, [and] to confront at trial adverse witnesses .... ” Likewise, the Sixth Amendment guarantees every criminal accused the right “to be confronted with the witnesses against him” and the right “to have compulsory process for obtaining witnesses in his favor .... ” These particular Sixth Amendment rights are fundamental in nature and obligatory on the states under the due process clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (right of confrontation); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (right to compulsory process).

Reeves’ apparent contention that the state deprived him of his right under the confrontation clauses of both constitutions to challenge Paleaz is devoid of merit. The state indicated at the in camera hearing that it will not call Paleaz to testify as a witness for the prosecution. Although Reeves thinks otherwise, a criminal defendant does not have any right under the confrontation clause of the federal constitution to compel a witness to testify for the state so that he may confront that witness. Cooper v. California, 386 U.S. 58, 62, n. 2, 87 S.Ct. 788, 791, n. 2, 17 L.Ed.2d 730, 734, n. 2 (1967); McCray v. Illinois, 386 U.S. 300, 313-14, 87 S.Ct. 1056, 1064, 18 L.Ed.2d 62, 72 (1967). Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193, 1202 (1982) (“[T]he Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him ‘compulsory process for obtaining witnesses in his favor.’ U.S. Const., Arndt. 6 [emphasis added].”) The terms of Article I, Section XVI, of our state constitution, show that the. same principle holds true under our state constitution. Thus, irrespective of any improper conduct on the state’s part, Reeves’ complaint on this score is invalid.

Reeves’ converse argument that the state deprived him of his right to have compulsory process for obtaining a witness in his favor requires greater study. However, we must in the end reject this argument too, for the reason that Reeves failed to offer a plausible explanation below of how Paleaz’ testimony would have been both favorable and material to his defense.

Although not citing any case law in support of his position, Reeves asserts that a credible showing of materiality and favora-bility as to a witness’ testimony is not necessitated in a situation such as that before us. But a reading of various decisions of the United States Supreme Court dealing with purported due process violations occurring at the pretrial stage in the area of a defendant’s organic right to access to evidence and testimony tends to suggest otherwise. -

In the recent case of Valenzuela-Bernal, the respondent was indicted for transporting one Romero-Morales in violation of a federal statute prohibiting the knowing transportation of an illegal alien. In addition to Romero-Morales, two other illegal aliens were passengers in the car being driven by the respondent when the four were apprehended together by immigration authorities. Immigration officials later deported the two other illegal aliens before the respondent had an opportunity to interview them to determine whether they could aid in his defense. The respondent filed a motion to dismiss the indictment, maintaining that the government’s deportation of these two passengers violated his rights to due process of law and to compulsory process. The federal district court denied the motion, and the respondent was thereafter tried, convicted and sentenced. The federal court of appeals reversed. However, the Supreme Court reversed the court of appeal’s decision, holding that, in order to demonstrate a violation of his rights to due process of law and to compulsory process, the respondent needed to offer some plausible explanation of how the two deported witnesses would have provided assistance favorable and material to his defense.

Admittedly, Valenzuela-Bernal did not involve an allegation of bad faith on the government’s part, as does this case. However, several of the Supreme Court’s earlier cases in this area strongly intimate that, regardless of whether bad faith conduct on the state’s part results in a pretrial suppression or loss of evidence or testimony, such conduct will not amount to a due process of law violation unless there is at least a showing by the defense that such evidence was material and favorable to the defense or that its loss or suppression prejudiced the defense. See, e.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (held “that the suppression by the prosecution of evidence favor able to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196, L.Ed.2d at 218 [emphasis added]); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (mentioned that “the mere possibility that an item of undisclosed information might have helped the defense, or might have helped the outcome of the trial, does not establish ‘materiality’ in the constitutional sense. Nor do we believe the constitutional obligation [of the prosecutor to disclose exculpatory evidence] is measured by the moral culpability, or the wilfulness of the prosecutor ... If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor.” 427 U.S. at 109-10, 96 S.Ct. at 2400-01, 49 L.Ed.2d at 353 [emphasis added]); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977) (noted that, in cases where the government has been responsible for pre-accusatory delay resulting in a loss of evidence to the defendant, “proof of prejudice is generally a necessary but not sufficient element of a due process claim, and ... the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” 431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759).

We therefore conclude that it is error to dismiss an information against a defendant where the defendant is claiming that improper conduct by the state has caused a witness not to testify if the defendant has not first offered a plausible explanation that the witness would have assisted him in a favorable and material way. In our view, this holding comports with our belief that an asserted denial of due process must always be tested by an evaluation of the totality of the circumstances involved in the case in question.

Reeves did not tender, or attempt to tender, any plausible explanation below that Paleaz would have assisted him in a material and favorable way. The closest thing to a credible explanation on his part was the comment by his counsel at the in camera hearing that he was “deprived of the use of [Paleaz] as a witness for any exculpatory information he might have as a result of misconduct on the part of the state.” (Emphasis added.) In our view, this remark falls far short of the required plausible explanation.

Reeves may assert that, given Paleaz’ silence, such a credible explanation would have been difficult to offer. But, as was the case in Valenzuela-Bemal where the respondent was never able to communicate with the deported witnesses, the task was not an impossible one. Reeves was present during the alleged narcotic transaction. He himself claimed in his motion to disclose that Paleaz was an “active participant in the alleged offense.” Thus, he, as much as anyone else, should have known the events and possible defenses to which Paleaz would have testified favorably and materially.

Regardless, it must be recognized that an explanation tendered by Reeves as to how Paleaz’ testimony would have been favorable and material may have been looked on by the trial court as dubious indeed, given Reeves’ earlier utterance that, due to the state’s inducement of Pa-leaz, he was simultaneously being deprived of the opportunity to “confront all witnesses against him,” obviously referring to Paleaz. (Emphasis added.) In short, Reeves was more concerned with the fact that Paleaz would not testify for the defense or the state, not with the fact that Paleaz would not testify for the defense.

Because Reeves did not first offer some credible explanation of how Paleaz’ testimony would have been favorable and material to his defense, the court’s implicit finding that the state was responsible for Pa-leaz’ invocation of the Fifth Amendment was unnecessary. We therefore intimate no opinion as to whether its implicit finding was erroneous.

Accordingly, we reverse the order dismissing the information with prejudice and remand with directions that the state be allowed to proceed with its prosecution of the case.

REVERSED and REMANDED.

SCHOONOVER and LEHAN, JJ„ concur.

      . The state did not argue below, and does not argue here, that the trial court should have deferred action on Reeves’ motion to dismiss until after trial, at which time the court could have assessed any prejudice to Reeves in light of the events at trial.


author: LEHAN, Judge.

text:
    HILLSBOROUGH COUNTY, Petitioner, v. WESTSHORE REALTY, INC., Respondent.
    No. 83-1287.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Rehearing Denied Jan. 20, 1984.
    R. Elliott Dunn, Jr., Asst. County Atty., Tampa, for petitioner.
    David M. Meehanik of MacFarlane, Ferguson, Allison & Kelly, Tampa, for respondent.
   LEHAN, Judge.

This case involves the respective roles of the courts and administrative agencies in zoning decisions.

The trial court reversed the denial by the Hillsborough County Commission of a rezoning request and compelled rezoning of certain R-l (single family residential) property to C-P (planned commercial district) zoning. The trial court based its reversal upon application of the equal protection clauses of the Florida and United States Constitutions in light of the perceived effect of previous rezoning of property in the neighborhood of the subject property. We reverse.

In reviewing a case like this that involves a circuit court in its appellate capacity reversing an administrative body in a zoning matter, we take cognizance of two general approaches which, on the surface, might appear to be conflicting. First, zoning changes of the type required by the trial court should, of course, not be made lightly. To change zoning on property from single family residential to commercial requires clear justification. Also, to overrule the decision of an administrative body charged with the responsibility for administering the zoning laws and presumed to possess special expertise in the subject of zoning, especially when, as here, that decision was made upon the recommendation of that body’s planning staff, should not be done when the validity of the administrative body’s decision is at least “fairly debatable” unless the administrative action violated the constitution. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1958).

Second, and on the other hand, a district court of appeal should not reverse a circuit court sitting in its appellate capacity unless error of the circuit court is so serious that there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice. Combs v. State, 436 So.2d 93 (Fla.1983); City of Mangonia Park v. Palm Beach Oil Co., 436 So.2d 1138 (Fla. 4th DCA 1983). Accordingly, we do not lightly reverse a circuit court sitting in its appellate capacity, especially in a case like this where it is clear that the learned circuit judge carefully considered the record and advisedly made his decision. Nonetheless, we believe an established principle of law requires reversal.

The respondents who filed the application to rezone were purchasers under a contract for purchase and sale of the subject property. The property is an 11-acre tract located on a corner at the intersection of five streets. Most of the other property in the immediate neighborhood, including the property bordering the subject property on the same block, is currently zoned either “R-l” or “R-E” (residential estates). At the five-street intersection there is a small parcel zoned C-P, on which there is an interior design business, and another small parcel zoned C-l, on which there is a convenience store and a gas station. The only major commercially-zoned property in the neighborhood is a 12-acre shopping center on one of the streets of the five-street intersection across the intersection from the subject property. That tract had been zoned residential until approved for rezoning in 1980.

The trial court based its finding of unequal protection upon the prior zoning changes from commercial to residential at the five-street intersection and a 1980 report of the planning commission staff which recommended approval of the 12-acre shopping center and suggested that the intersection could be considered an appropriate location for a “commercial node.” In disagreeing with the trial court that the constitution was violated by the county commission’s denial of the rezoning petition, we note the dissimilarity of this case to the facts of several cases in which rezoning of property from residential to commercial was judicially required upon constitutional grounds.

In Tollius v. City of Miami, 96 So.2d 122 (Fla.1957), appellant requested that his parcel of land be rezoned from single-family residential to allow an apartment-motel on the land. The circuit court sustained the city commission’s denial of the rezoning petition. The Florida Supreme Court versed and granted appellant the relief sought. The court pointed out that appellant’s property was surrounded by heavily-traveled, multi-laned highways or streets. Across two of the streets were a motel and a site for a planned restaurant. The court referred to appellant’s property as a “veri-tahle island” of residentially-zoned property surrounded by commercial property.

In City of Clearwater v. College Properties, Inc., 239 So.2d 515 (Fla.2d DCA 1970), this court used the “veritable island” language from Tollius when referring to property located in a city block on which all the other lots except two were zoned “Business, B” while the subject property retained its “Professional and Related Services” classification. This court held that the trial court had correctly quashed the city’s denial of appellee’s rezoning application.

Courts are reluctant to find that a denial of rezoning is unconstitutional discrimination when the character of the surrounding neighborhood has not been altered by previous zoning changes so that a denial of rezoning of the subject property becomes arbitrary and unreasonable. See e.g., City of South Miami v. Hillbauer, 312 So.2d 241 (Fla. 3d DCA 1975); J.H.S. Homes, Inc. v. County of Broward, 140 So.2d 621 (Fla. 2d DCA 1962). The fact that a petitioner’s land is situated across the street from property with a less restrictive zoning classification is not enough to mandate rezoning of petitioner’s property. City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364 (1941). As the Florida Supreme Court has stated, “[I]f the subject property be rezoned to business, the property to the north and across the street would have to be treated similarly and on and on as to other property until by a process of ‘judicial erosion’ the entire zoning plan would be destroyed.” City of Miami Beach v. Wiesen, 86 So.2d 442, 446 (Fla.1956).

We believe that respondents have not met their two-fold burden of showing that their residentially-zoned property is in a neighborhood the character of which has been clearly changed to commercial and that the county commission’s action was arbitrary and unreasonable. The record shows that most of the property surrounding respondents’ land continues to be zoned residential. There is reasonable basis for a conclusion that the 1980 rezoning of the 12-acre shopping center site across the street and the existence of the two smaller non-residential parcels at the intersection did not constitute an alteration of the character of the entire surrounding neighborhood to commercial.

We grant the petition for certiorari, reverse, and remand for the reinstatement of the county commission’s denial of the rezoning application.

REVERSED AND REMANDED.

OTT, C.J., and RYDER, J., concur.


author: COBB, Judge. DAUKSCH, Judge,

text:
    Connie Faye LINCOLN, Appellant, v. STATE of Florida, Appellee.
    No. 82-873.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    As Clarified On Rehearing Jan. 26, 1984.

      James B. Gibson, Public Defender, and Curley R. Doltie, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant Lincoln’s husband robbed a drug store and she drove him from the scene. Law enforcement officers pursued the car four miles before she stopped. She was charged with and convicted of armed robbery. She denied knowing in advance that her husband intended to rob the drug store, and claimed the flight in the car was induced by fear of her husband. At the scene of the arrest she was crying and told arresting officers, “He made me do it.” The question is the sufficiency of the evidence to sustain the robbery conviction, as opposed to a conviction as an accessory after the fact, with which she was not charged and which is not a lesser included offense of the charge. See Newkirk v. State, 222 So.2d 435 (Fla. 3d DCA 1969); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

A number of Florida cases have held that merely driving the perpetrator to and from the scene of the offense, absent any other incriminating involvement, is insufficient circumstantial evidence of the requisite intent to participate in the offense itself. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968).

The question, then, is whether or not the added element of flight and police pursuit of the vehicle supplies the evidentiary basis for a finding of criminal intent. In an analogous factual situation in A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982), this question was answered in the negative. Therein it was held:

Evidence that the defendant was present at the scene of the crime and drove the “getaway” car at the request of the perpetrator of the burglary does not exclude the reasonable inference that the defendant had no knowledge of the crime until after it occurred; thus, she did not have the requisite intent.

414 So.2d at 1159. See also Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982), review denied, 426 So.2d 26 (Fla.1983).

As in Gains, there was no direct evidence in the instant case that Connie Lincoln had seen her husband carry a gun into the drug store; had heard him discuss his intention to commit the robbery; had been able to see the robbery in progress; or had acted as a look-out during the course of the robbery.

Despite the contrary authority from the First and Third Districts, the more logical and persuasive view is that driving a getaway car in an elusive manner in an attempt to avoid the police creates a prima facie case from which the finder of fact at trial may properly infer complicity in intent to commit the crime. On that basis we affirm, but certify direct conflict with the decisions in A.Y.G. and Gains pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).

AFFIRMED.

ORFINGER, C.J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

I concur with the result because I think the evidence is legally sufficient to convict. See Tibbs v. State, 397 So.2d 1120 (Fla.1981). Appellant’s husband had asked appellant before the robbery to drive him to “some different places, that he had to make some money. And I asked him, I said are you talking about robbery? And he says, well, either that or a drugstore where I can get some drugs so I won’t have to spend any money, you know, to go buy some. And I told him I didn’t want any part of it, you know, I didn’t wanna be stealing nothing and I didn’t wanna be any part of that at all. And that’s when he said, you’re my wife, you’re my legal wife. He said, yes, you are taking me to go in, you are going with me. So, I, that’s when we left, just started driving up and down the street.” Later, “He told me, he said, park the car here. He didn’t tell me he was going to rob it.” She parked the car in front of the drugstore while her husband went in and robbed the store at gunpoint. When he came out of the store she drove the car some four miles with the police in pursuit. That is enough evidence for the jury to decide whether she is guilty as a principal to armed robbery. Her husband told her he was going to commit a robbery, told her to drive the car.- She did. I do not think it is proper for this court to certify a conflict because I think the evidence is stronger here than in A.Y.G. v. State, 414 So.2d 1158 (Fla. 3d DCA 1982) and Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982). The principle in those cases is soundly based upon their factual settings.