author: TYSON, Judge.

text:
    Johnny LUKE v. STATE of Alabama.
    4 Div. 98.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied March 29, 1983.

      James M. Ivins of Cornett, Perdue & Ivins, Phenix City, for appellant.
    Charles A. Graddick, Atty. Gen. and William D. Little and Edward Carnés, Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Johnny Luke was indicted for and convicted of the capital murder of James T. Hughes, the proprietor of a general store in Hurtsboro, Alabama, during a robbery in the first degree, or an attempt thereof, in violation of § 13A-5-40(a)(2), Code of Alabama 19.75.

Pursuant to § 13A-5-44, the appellant, with the consent of the State and with the approval of the trial court, waived the participation of a jury in the sentencing phase of the trial. We have examined the record setting out appellant’s waiver of jury participation and we find that appellant was expressly informed of his right to have the jury involved in the sentence proceeding and that the appellant freely and intelligently gave up that right.

Thereafter, the trial court ordered a pre-sentence investigation report as specified in § 13A-5-47(b) and, with the consent of both parties, delayed the sentence hearing pending receipt of the report. Alabama Code § 13A-5-45(a) (1975). Subsequently, the trial court weighed the aggravating and mitigating circumstances according to § 13A-5-47, and sentenced appellant to death. The court entered specific written findings regarding the existence or non-existence of each aggravating circumstance listed in § 13A-5-49, and each mitigating circumstance enumerated in § 13A-5-51 or referred to in § 13A-5-32.

According to the mandate of § 13A-5-47(d), the trial court made the following findings of fact summarizing the crime and the appellant’s participation in this offense, which we hereby adopt: (R. 477-480).

“At approximately 7:00 A.M., Central Daylight Time, on Friday, July 23, 1982, defendant was awakened by George Warren. Warren wanted defendant to help him load watermelons onto his El Camino pickup truck. They went to the house of Alice Starke, Warren’s girlfriend, and loaded watermelons until 8:30 A.M. They then went to the house of Lucile Goode and they left several watermelons. Thereafter they went to the trailer of Warren in rural Russell County. At approximately 12:30 P.M. on that same day, Warren and defendant decided to rob the store of James T. Hughes in Hurtsboro, Russell County, Alabama. They traveled to the store in Warren’s pickup and arrived there at approximately 1:30 P.M. Warren went inside first and purchased two cans of beer. By that time defendant had entered the store armed with a five-shot .38 caliber revolver. This weapon belonged to Warren and had been in defendant’s possession for approximately a week. James T. Hughes was behind the counter upon which a cash register was placed. After Hughes made change for Warren’s purchase, defendant fired the pistol four times. All four bullets struck Mr. Hughes. He was struck in the face, the upper left arm, the right forearm, and the upper right chest. This last bullet traveled through his body, severing the vena cava to the heart and caused substantial damage to the liver. After being discovered, he was transferred to Cobb Memorial Hospital in Phenix City, Alabama, where he died in surgery. Two bullets were recovered from the body of Mr. Hughes. These bullets were fired from the pistol which was later found in the trailer of George Warren. The death of Mr. Hughes was caused by a gunshot wound to his chest. Mr. Hughes was first discovered by Jimmy Lee Berry, who summoned aid. Mr. John T. Smith was one of the persons giving assistance to Mr. Hughes. Mr. Hughes said several times, ‘John T., I’m not going to make it.’ Hurtsboro Police Chief Richard Roynon asked Mr. Hughes who shot him. Mr. Hughes responded by saying, ‘That Luke boy and George Warren was with him.’
“After the shooting Warren and defendant left the premises. Warren drove the pickup truck to his residence. While enroute defendant removed four spent shells and threw them out the window. Warren went inside his trailer with the pistol and left it there. This pistol was later recovered pursuant to a valid search warrant.
“From Warren’s trailer they drove to the house of Alice Starke and borrowed her car. The pickup truck was left in the yard. The defendant and George Warren went to the grocery store of Frank Hendricks in Hurtsboro, Alabama, where Warren bought several items. On the way back to Warren’s residence they were apprehended by deputies of the Russell County Sheriff’s Department. At that time defendant made a voluntary statement, after waiving his rights under the constitutions of the United States and Alabama. Defendant told Deputy Sheriff B.J. Ammons that Warren and he had decided that morning to go to the store of Mr. Hughes and rob him. He said they went to the store and Hughes ‘gave them trouble.’ Defendant said he shot Hughes four times. Later that evening, at 5:00 P.M., at the Hurtsboro police department, the defendant said in a voluntary statement, after waiving his constitutional rights, that he and Warren went to Hughes’ store. Defendant shot Hughes four times. Defendant also stated that he did not intend to rob Mr. Hughes. At 11:04 P.M. that same night, defendant made another voluntary statement, after waiving his constitutional rights. Defendant said he and Warren decided about 12:30 P.M. to rob Mr. Hughes’ store because Hughes ‘had money there.’ Defendant said that after Warren purchased some beer he (defendant) started shooting. Defendant said he was going to get money after he shot Hughes but that he didn’t because he ‘changed his mind.’
“On July 25, 1982, in another voluntary statement after waiving his constitutional rights, defendant said he shot Mr. Hughes. This statement was tape-recorded. Investigator Thomas Boswell testified at trial that after the voluntary waiver of constitutional rights and before the statement was recorded, defendant was asked if robbery was the motive. Investigator Boswell testified that defendant responded in the affirmative.
“James T. Hughes was not armed with any weapon. There is no evidence to indicate that the killing of James T. Hughes by defendant was a justifiable or excusable homicide. The . Court finds that defendant went to the store of James T. Hughes to rob him. There defendant intentionally shot and murdered James T. Hughes during an attempt to rob the said James T. Hughes.”

I

The appellant insists that, because there was no direct evidence of a theft of property from the victim, the State failed to prove that the murder was committed during a robbery or an attempted robbery.

The appellant’s argument focuses on the third element of common-law robbery, “taking and carrying away of the personal property of another,” see Davis v. State, 401 So.2d 187, 189 (Ala.Cr.App.), cert. denied, 401 So.2d 190 (Ala.1981), concluding that without evidence of “taking,” the appellant cannot be guilty of the crime charged.

This argument overlooks the fact that the present Alabama robbery statutes are broader than common-law robbery and embrace acts which, under former law, would have amounted to attempted robbery or to assault with intent to rob. Alabama Code §§ 13A-8-40 through -44 (1975) (Commentary); Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981). Furthermore, the capital offense is “murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.” Alabama Code § 13A-5-40(a)(2) (1975). Emphasis added.

Therefore, in our judgment, the jury was warranted in finding that appellant shot Hughes “in the course of committing a theft” as the indictment herein charged and as the robbery statutes of this state prohibit.

“ ‘IN THE COURSE OF COMMITING A THEFT’ embraces acts which occur in an attempt to commit or the commission of theft, or in immediate flight after the attempt or commission.”

Alabama Code §§ 13A-8-40(b) (1975). “Attempt” is defined in § 13A-4-2(a), Code of Alabama 1975, as follows.

“A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense.”

The appellant’s intent to rob is indicated by his own statements. As this court observed in Watters v. State, 369 So.2d 1262, 1271-72 (Ala.Cr.App.1978), reversed on other grounds, 369 So.2d 1272 (Ala.1979):

“[Ijnconclusive 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, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.”

Although appellant also made other statements denying his intent to rob, we must view the evidence in the light most favorable to the State, Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), to determine “whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt,” Dolvin v. State, 391 So.2d 133, 137 (Ala.1980).

Thus, not only was the jury warranted in finding appellant’s intent to rob from his own statements, but from the facts, they were also authorized to conclude that appellant’s entering the store, drawing the pistol, and shooting Hughes were overt acts toward the commission of a robbery. The verdict of the jury and the written findings of fact by the trial judge that the capital offense occurred during an attempted robbery were amply supported by the evidence in this cause.

II

The appellant asserts that the jury was unduly affected by the weeping of the victim’s widow during the trial, thereby causing the sentence of death to be “imposed under the influence of passion and prejudice,” in violation of § 13A-5-53(b)(l).

The record does not indicate that the jurors were distracted, disturbed or influenced in any manner by the presence of Mrs. Hughes. Further, the record reveals that prior to appellant’s objection concerning the widow’s display of emotion, the trial court cautioned the jury “not to permit any sympathy, any prejudice, or any emotion for or against anyone to influence you.” (R. 31).

More importantly, any influence on the jury could not have tainted the determination of appellant’s sentence, since the jury was not involved in the sentencing phase of this trial. Following the appellant’s waiver of jury participation, the trial judge alone determined all matters relating to this appellant’s sentence.

III

It is hereby noted that the death penalty is not cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States. Gregg v. Georgia, 428 U.S. 153, 168-88, 226, 96 S.Ct. 2909, 2922-32, 2949, 49 L.Ed.2d 859 (1976); Beck v. State, 396 So.2d 645, 655 (Ala.1980).

IV

Under § 13A-5-53, Code of Alabama, this court is required, in addition to examining the record for errors affecting appellant’s conviction, to review the propriety of the death sentence.

In accord with our statutory mandate, we have reviewed the sentencing phase of the trial and have found no error adversely affecting the appellant’s rights. The trial court’s findings concerning the aggravating and mitigating circumstances are fully supported by the evidence and, in our judgment, the sentence of death is proper in this case.

As shown by Appendix A, the trial court found one aggravating circumstance to exist and one mitigating circumstance to be present. The existence of the aggravating circumstance outline in § 13A-5-49(4) (The capital offense was committed while the defendant was engaged in an attempt to commit robbery) is fully borne out by the evidence presented. The presence of the mitigating circumstance set out in § 13A-5-51(1) (The defendant has no significant history of prior criminal activity) is also supported by the evidence. Further, the record reveals the trial court’s assessment to be correct, that no aggravating or mitigating circumstances, other than those specifically found to be present, existed.

We have also determined, in accord with § 13A-5-53(b) and (c) that

(1) the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor;

(2) that our independent weighing of the aggravating and mitigating circumstances at the appellate level reveals the death penalty is the proper sentence under the evidence; and

(3) that the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and this defendant-appellant. See Beck v. State, 396 So.2d 645, 654 n. 5 (Ala.1980) (the great majority of death sentences in Alabama are for robbery-murder).

In addition to addressing all of the questions raised by this appellant on this appeal, we have carefully searched the entire record for plain error, A.R.A.P. 45A, and have found none adversely affecting appellant’s substantial rights. The judgment of conviction and sentence of death is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA, ) IN THE CIRCUIT COURT OF

)

Plaintiff ) RUSSELL COUNTY, ALABAMA

)

vs. ) CRIMINAL ACTION NO. CC 82-320

)

JOHNNY LUKE, )

)

Defendant )

DETERMINATION OF SENTENCE BY THE COURT

The defendant herein, with assistance of counsel at all proceedings, was found guilty as charged in the indictment. The Court heard the evidence at trial. Pursuant to Section 13A-5-47, the Court makes the following findings of fact summarizing the crime herein and the defendant’s participation in it:

FINDINGS OF FACT FROM THE GUILT PHASE

At approximately 7:00 A.M., Central Daylight Time, on Friday, July 23, 1982, defendant was awakened by George Warren. Warren wanted defendant to help him load watermelons onto his El Camino pickup truck. They went to the house of Alice Starke, Warren’s girlfriend, and loaded watermelons until 8:30 A.M. They then went to the house of Lucille Goode and they left several watermelons. Thereafter they went to the trailer of Warren in rural Russell County. At approximately 12:30 P.M. on that same day, Warren and defendant decided to rob the store of James T. Hughes in Hurtsboro, Russell County, Alabama. They traveled to the store -in Warren’s pickup and arrived there at approximately 1:30 P.M. Warren went inside first and purchased two cans of beer. By that time defendant had entered the store armed with a five-shot .38 caliber revolver. This weapon belonged to Warren and had been in defendant’s possession for approximately a week. James T. Hughes was behind the counter upon which a cash register was placed. After Hughes made change for Warren’s purchase, defendant fired the pistol four times. All four bullets struck Mr. Hughes. He was struck in the face, the upper left arm, the right forearm, and the upper right chest. This last bullet traveled through his body, severing the vena cave to the heart and caused substantial damage to the liver. After being discovered, he was transported to Cobb Memorial Hospital in Phenix City, Alabama, where he died in surgery. Two bullets were recovered from the body of Mr. Hughes. These bullets were fired from the pistol which was later found in the trailer of George Warren. The death of Mr. Hughes was caused by a gunshot wound to his chest. Mr. Hughes was first discovered by Jimmy Lee Berry, who summoned aid. Mr. John T. Smith was one of the persons giving assistance to Mr. Hughes. Mr. Hughes said several times, “John T., I’m not going to make it.” Hurtsboro Police Chief Richard Roynon asked Mr. Hughes who shot him. Mr. Hughes responded by saying, “That Luke boy and George Warren was with him.”

After the shooting Warren and defendant left the premises. Warren drove the pickup truck to his residence. While en-route defendant removed four spent shells and threw them out the window. Warren went inside his trailer with the pistol and left it there. This pistol was later recovered pursuant to a valid search warrant.

From Warren’s trailer they drove to the house of Alice Starke and borrowed her car. The pickup truck was left in the yard. The defendant and George Warren went to the grocery store of Frank Hendricks in ¿Hurtsboro, Alabama, where Warren bought several items. On the way back to Warren’s residence they were apprehended by deputies of the Russell County Sheriff’s Department. At that time defendant made a voluntary statement, after waiving his rights under the constitutions of the United States and Alabama. Defendant told Deputy Sheriff B.J. Ammons that Warren and he had decided that morning to go to the store of Mr. Hughes and rob him. He said they went to the store and Hughes “gave them trouble.” Defendant said he shot Hughes four times. Later that evening, at 5:00 P.M., at the Hurtsboro police department, the defendant said in a voluntary statement, after waiving his constitutional rights, that he and Warren went to Hughes’ store. Defendant shot Hughes four times. Defendant also stated that he did not intend to rob Mr. Hughes. At 11:04 P.M. that same night, defendant made another voluntary statement, after waiving his constitutional rights. Defendant said he and Warren decided about 12:30 P.M. to rob Mr. Hughes’ store because Hughes “had money there.” Defendant said that after Warren purchased some beer he (defendant) started shooting. Defendant said he was going to get money after he shot Hughes but that he didn’t because he “changed his mind.”

On July 25, 1982, in another voluntary statement after waiving his constitutional rights, defendant said he shot Mr. Hughes. This statement was tape-recorded. Investigator Thomas Boswell testified at trial that after the voluntary waiver of constitutional rights and before the statement was recorded, defendant was asked if robbery was the motive. Investigator Boswell testified that defendant responded in the affirmative.

James T. Hughes was not armed with any weapon. There is no evidence to indicate that the killing of James T. Hughes by defendant was a justifiable or excusable homicide. The Court finds that defendant went to the store of James T. Hughes to rob him. There defendant intentionally shot and murdered James T. Hughes during an attempt to rob the said James T. Hughes.

After the trial both the State of Alabama and the defendant waivéd the participation of a jury in the sentence hearing. The Court finds that the defendant was expressly informed of his right to have the jury participate in the sentence hearing. The Court further finds that the defendant fully, voluntarily, knowingly, and intelligently waived his right to the participation of a jury in this sentence hearing.

Subsequently the Court held a sentence hearing without the participation of a jury. At the sentence hearing the State rested on the evidence adduced at trial. At this hearing the defendant took the stand and testified that he did not intend to rob Mr. Hughes or take anything out of the store. He further testified that he was sorry about what happened at the store. He further expressed his desire to live. The Court then received arguments from the counsel for both parties.

The Court also ordered the probation officer for this circuit to prepare a written presentence investigation report. This report was duly prepared and filed with the Court. Copies of the same were furnished to counsel for both parties. A hearing was held for the parties to respond to the report and to present evidence about any part of the report which would be the subject of a factual dispute. At this hearing the State presented no further evidence. The defendant, through his counsel, rested upon the matters brought forth at the sentence hearing.

The Court finds from the evidence presented in this case that the defendant was guilty and is guilty of the murder of James T. Hughes while committing a robbery in the first degree.

FINDINGS FROM THE SENTENCE PHASE

The Court finds the following aggravating circumstance to exist in this case:

The capital offense was committed while the defendant was engaged in the commission of an attempt to commit robbery.

The Court finds that the following aggravating circumstances do not exist in this case:

a. the capital offense was committed by a person under sentence of imprisonment.

b. the defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person.

c. the defendant knowingly created a great risk of death to many persons.

d. the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

e. the capital offense was committed for pecuniary gain.

f. the capital offense was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.

g. the capital offense was especially heinous, atrocious or cruel compared to other capital offenses.

Upon consideration of all the evidence brought forth at the trial in this case, the sentence hearing, and the presentence investigation report, the Court finds that the following mitigating circumstance exists in this case:

The defendant has no significant history of prior criminal activity.

The Court finds that the following mitigating circumstances do not exist in this case:

a. the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

b. the victim was a participant in the defendant’s conduct or consented to it.

c. the defendant was an accomplice in the felony offense committed by another person and his participation was relatively minor.

d. the defendant acted under extreme duress or under the substantial domination of another person.

e. the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

f. the age of the defendant at the time of the crime.

g. any other circumstances offered pursuant to Section 13A-5-52.

Upon considering and weighing the aggravating circumstance with the mitigating circumstances in this case, the Court is of the opinion that the aggravating circumstance outweighs any mitigating circumstances. It is, therefore,

ORDERED AND ADJUDGED BY THE COURT that the defendant be sentenced to death by electrocution as specified in the laws of this state and as set forth in an order of sentence" by this Court.

DONE this the 29th day of October, 1982.

/s/ Wayne T. Johnson Circuit Judge

      . The trial court’s findings of fact and sentence are incorporated herein as Appendix A. (R. 477-483).


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Ex parte Johnny LUKE. (Re Johnny Luke v. State of Alabama).
    82-622.
    Supreme Court of Alabama.
    September 30, 1983.
    Rehearing Denied Dec. 22, 1983.
    James M. Ivins of Cornett, Perdue & Ivins, Phenix City, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and William D. Little, Asst. Attys. Gen., for respondent.
   ADAMS, Justice.

Johnny Luke, petitioner, was convicted of the capital offense of “murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.” Code 1975, § 13A-5-40(a)(2). In a separate sentencing phase of the trial, the trial judge sentenced petitioner to death by electrocution. We granted the petition for a writ of certiorari, which petitioner is entitled to as a matter of right, in order to review the decision of the Court of Criminal Appeals affirming petitioner’s conviction and sentence of death.

Pursuant to Code 1975, § 13A-5-47(d), the trial court made written findings of facts summarizing the crime and petitioner’s participation in it. The Court of Criminal Appeals, in addition to outlining the proceedings in the trial court, incorporated those written findings in its opinion, 444 So.2d 393. They need not be restated here.

Petitioner raises several issues in his brief. We first consider petitioner’s argument that the State did not satisfy its burden of proof as to the robbery component of the capital offense of which he was convicted.

Petitioner asserts that the State’s inability to produce direct evidence of a plan to commit robbery, or of an attempt to take or carry away the personal property of the deceased, at the time of the shooting, constitutes a failure of proof by the State. Having carefully considered the opinion of the Court of Criminal Appeals, which we think correctly addressed this issue, we conclude that petitioner’s argument is unfounded.

As the appellate court likewise indicated: ... it must be considered as settled that inconclusive 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, and so to support a conviction although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti.

Hill v. State, 207 Ala. 444, 446, 93 So. 460, 462 (1922); Bridges v. State, 284 Ala. 412, 418, 225 So.2d 821, 826 (1969). Here, petitioner’s statements regarding his intent to rob, albeit conflicting, should be considered with those facts and circumstances that are undisputed, though .inconclusive. .

The facts are undisputed that petitioner and his companion, one of whom was carrying a pistol, entered a small general merchandise store. While they were in the store, alone with the proprietor, the petitioner’s companion brought some beer to the check-out counter to be rung up and sacked. Thereafter, the proprietor was fatally shot near the cash register, and petitioner and his companion left the store. Though these facts cannot be regarded as conclusive, they have “a just tendency to lead the mind to the conclusion that the offense has been committed,” and would be admissible to corroborate the statements of petitioner. Matthews v. State, 55 Ala. 187, 194 (1876), cited in Hill v. State, 207 Ala. at 446, 93 So. at 462. They are unquestionably typical of the now too frequent convenience store robbery. Therefore, we agree with the conclusion of the Court of Criminal Appeals that the verdict of the jury and the written findings of fact of the trial judge were supported by the evidence.

Petitioner also argues that the sentence of death was imposed under the undue influences of passion and prejudice, that the sole aggravating circumstance found by the trial court was not supported by the evidence, and that the death penalty is unconstitutional. We think these issues were properly addressed by the Court of Criminal Appeals, and, therefore, need no further comment by us.

As required by Rule 39(k), A.R.A.P., we have searched the record of both the trial phase and the sentencing phase of petitioner’s trial for any plain error or defect which “has or probably has adversely affected the substantive rights of the petitioner.” We have found no such error. Moreover, having independently weighed the aggravating and mitigating' circumstances in this case, we conclude that the trial court’s sentence of death was correct under the circumstances of this case, and not excessive or disproportionate to the penalty imposed in other robbery-intentional killing cases.

For the foregoing reasons, we affirm the decision of the Court of Criminal Appeals.

AFFIRMED.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.


author: THOMAS E. HUEY, Retired Circuit Judge.

text:
    James Randall BORDEN v. STATE.
    8 Div. 731.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-293.
    John R. Benn of Peck, Slusher & Bunch, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   THOMAS E. HUEY, Retired Circuit Judge.

The appellant was convicted of attempt to commit murder and assault in the first degree. He was sentenced to imprisonment in the penitentiary for eighteen years under Count I of the indictment and eighteen years under Count II, the sentences to run concurrently. The appellant pleaded not guilty, including self-defense.

I

On January 26, 1982, Rhonda Sparks, the ex-wife of Ricky Sparks, was at the ECM hospital in Florence, Alabama, attending her young daughter who was a patient at the hospital. The appellant, James Randall Borden, had been dating Rhonda Sparks for several months and was with her at the hospital on January 26. Ricky Sparks came to the hospital while the appellant and Rhonda Sparks were there. Ricky Sparks and the appellant left the hospital at different times and drove off in their automobiles.

Sparks testified that in his rear view mirror he saw appellant following in his car and that appellant motioned for Sparks to pull over. Sparks testified that he pulled his car over near the curb and parked and that the appellant parked his car next to the driver’s side of Sparks’s car.

The appellant’s version is different. He testified that Sparks passed him between traffic lights and, while ahead of him, Sparks motioned for appellant to pull his car in beside him. The appellant pulled in and parked his car next to the driver’s side of Sparks’s car.

The testimony is conflicting as to what happened at this point. Sparks testified that as the appellant parked his car the latter said to Sparks, “Buddy I want to know what your problem is.” Sparks testified he responded, “Mister I don’t have a problem.” Sparks further testified, “And when I said that, I saw his pistol come up and he started shooting me.”

The appellant fired five shots and hit Sparks four times.

Sparks further testified that while still seated in his car he hit at appellant with a sawed-off ax handle which he kept in his car, and that he was able to hit the appellant as the appellant moved over to the passenger’s side of appellant’s car. Sparks testified that he finally heard appellant’s pistol click, knew it was empty, and then opened his door, jumped out of the car, ran around behind appellant’s car and then ran across the street and entered a nearby building.

The conflicting nature of the evidence is further indicated by the testimony of the appellant. Appellant testified that Sparks motioned for him to roll his window down. The following then appears in the transcript:

“Q. Okay, and did you roll your window down?

“A. That’s correct. I have electric windows.

“Q. All right, and what, if anything, was said between the two of you at that point?

“A. Very little. He made a remark, which it was an offhand remark, and I can’t swear what the actual words spoken — it was something like, what are we going to do — similar to that.

“Q. Okay sir. And what, if anything, did you respond?

“A. It was something like I don’t know what you mean, about that quick.

“Q. All right. What happened after that?

“A. Well, it was — what I’m fixing to say happened in an instant. As soon as he got through saying it, really before I could get out of my mouth, I saw his door, crack of his door, as it swing out and I saw his hand clutching the butt end of a stick.

“Q. Okay, sir. The stick that he had, was it similar in appearance to this stick right here?

“A. Yes, it was. Yes, it was. The butt end didn’t come out. This end came out first. I noticed the brown first. That’s how I remember that end came out first.

“Q. Okay, sir, and where were your hands at this point?

“A. I’m sure that one of them was in my lap, probably one on the wheel.

“Q. Okay. And do you have a gun? “A. That’s correct.

“Q. And is that the same gun that’s been introduced in evidence here today?

“A. That’s correct.

“Q. And do you have a permit for that gun?

“A. Yes, I do.

“Q. And did you have that gun with you on January the 26th?

“A. I did.

“Q. Do you have a — where was it located in the car at that time?

“A. Between my seat and my arm rest, kinda back up in the corner, tucked away where I could touch it with my fingertips.

“Q. Okay, now, if you would, imagine that you’re in your car in the driver’s seat as you were on this day, and that’s the front of your car, now where would your gun be located?

“A. It would be right there. It’s under, kinda under the seat.

“Q. Okay, was it out in the floor or was it tucked back up under the seat?

“A. Tucked back under the seat.

“Q. Okay, and prior to the time that Mr. Sparks came out of his car with that stick, had you gotten that gun out or made any preparatory motions-to unbuckle the holster?

“A. No, sir, not prior.

“Q. Okay. After Mr. Sparks came out with that stick there, tell the jury what happened.

“A. Well, he came out and I thought as quick as I could and went for the gun, because I know — recognize a club when I see it, and I know animosity when I see it, and I sensed it and I went for my gun, and I proceeded to take it out of the holster.

“Q. Okay. Had he struck you at this point?

“A. He had struck my car.

“Q. Okay, what portions of his car did he strike?

“A. Around the window and the molding. I think my electric lock was the first thing to go.

“Q. The electric lock on the passenger’s door of your car?

“A. Yes.

“Q. Can you describe the motion that he used to knock the lock off?

“A. Well, to me, he was kind of in a rage. I mean, it was — he beat the hell out of it, really. I mean, he didn’t just swipe at it or whatever. He was hitting some pretty strong licks up and down and around. It was almost like tearing a window out or something.

“Q. Okay. Now, are you left or right-handed?

“A. Left-handed.

“Q. Which hand did you use to go to try to get your gun out from under the seat?

“A. I used my right hand to get it out.

“Q. Okay, and the gun, I believe, you stated was by your right foot?

“A. That’s correct.

“Q. Did you sustain any injuries, bodily injuries in this attack?

“A. Yes, I did.

“Q. Where were they located?

“A. They were located on my elbow.

“Q. Which elbow?

“A. On my right elbow. My left forefinger and my head, my temple.

“Q. Which side of your temple? Which temple, I mean?

“A. This side.

“Q. All right. Were you treated for those injuries?

“A. ECM Hospital emergency room.

“Q. Can you tell us in your own words what type of treatment you received down there?

“A. I received something to deaden it, I’m sure, and was stitches. I think six; I’m not sure.

“Q. Okay, and at this point, was Sparks by your window on the passenger side of your car?

“A. He was in the process of getting out of his car when I was going for my gun, and when I reached down for it, he was already like this and already — I’m already looking at the stick.

“Q. Okay, show the jury what you did— what motion you made to get the gun and what you did after you got it up.

“A. Of course, I can’t grasp it very well. I brought it up with my right hand, but I’m left-handed and I have to unsnap these snaps to get the gun out. All right, I’ve got two snaps. First I unsnap and, you know, it comes out — the wrong one. By this time, he’s swinging making licks on my car, so I turned around with this gun and pointed it — holding it with both hands, holding the scabert [sic] in my right hand, I was point it at him and still didn’t have it out. I didn’t have my hand on the trigger or anything. And I finally got the other snap unsnapped, and then when I got it out, I throwed my holster down with my left hand and switched it over and grabbed it, and then I started shooting, just like that.

“Q. Okay, sir. To the best you can recall, Randall, were you getting hit during this period of time?

“A. I believe so. I know I got hit on my hand and my elbow.

“Q. Okay, and to the best that you can recall, would you describe to the ladies and gentlemen of the jury where exactly Sparks was with this stick at this time while you were getting your gun up and it’s still in its holster.

“A. He’s right on me, right — he’s just dead on me.

“Q. Did you ever shoot him while he was seated over in his own car?

“A. No sir.”

The appellant also testified that he did not move from the driver’s seat over to the passenger’s seat of his car, which is contradicted by testimony by Sparks.

The appellant further testified that Sparks struck appellant’s car and dented it with the ax handle.

Photographs admitted in evidence show four bullet wounds in Sparks’s body, and lacerations or contusions to appellant’s head and chest. Detective Rick Thompson testified that, among other wounds, the appellant had “a laceration to his right temple and the hair had been shaved away around it, and it had some stitches in it.”

II

The appellant contends that the trial court committed reversible error in admitting hearsay testimony by Ricky Sparks as to threats made by the appellant.

During the testimony of Ricky Sparks the following occurred:

“Q. Had you been threatened by Mr. Borden face to face?
“A. No I had not.
“Q. Had you had any threats communicated to you from a — from someone else?
“A. Yes, I had.
“Q. Who told you about that?
“MR. SLUSHER: Objection. It’s hearsay.
“THE COURT: Overrule the objection.
“Q. Who told you about that?
“A. His ex-wife, Paulette Borden, and my ex-mother-in-law, and by Rhonda, and by Cheryl Jones.
“Q. And what kind of threats were they?
“MR. SLUSHER: Same objection on the previous grounds stated, hearsay.
“THE COURT: All right. The question needs to be what threats were communicated to him.
“Q. What threats were communicated to you through those people?
“A. Well, Mrs. Louise Bates — that’s Rhonda’s mother — after Randall had started seeing her, she told me that for my protection I’d better—
“MR. SLUSHER: Objection, Your Honor. This again calls for hearsay, and he’s not testifying as to a threat made by Mr. Borden. Bates allegedly told him.
“THE COURT: I’ll say again, I’ll permit him to testify to anything in the nature of a threat that someone told him that Mr. Borden made toward him. Now, if that’s what your testimony is going to be, Mr. Sparks, go ahead. If it’s going to be something else, you need to ask him another question.
“Q. Tell us about any threats Mrs. Bates told you about.
“A. All right, this is something to do with it. Paulette Borden — she’s his ex-wife — I don’t remember the date. It was somewhere probably in the second week of November. I think I’m pretty close on that. She was — Louise Bates called me to her house one morning. I went down there and Paulette was there. And she was beat—
“MR. SLUSHER: Objection, Your Honor.
“THE COURT: Sustain the objection. Just ask him another question because he’s not going to answer it the way you asked him to.
“Q. Because of those communications from the people that you’ve named, Mrs. Bates and Mrs. Borden, and your ex-wife, is that the reason you got police escort to and from Rhonda’s apartment?
“A. Yes, it was.”

To the question by the State, “Who told you about that?” the appellant objected on the ground of hearsay. The trial court overruled the objection. The State then repeated the question in exactly the same form. To this repeated question the appellant made no objection. It was not necessary to repeat the objection, as an objection previously made to the identical question had been overruled by the trial court. Wilson v. State, 37 Ala.App. 644, 73 So.2d 925 (1954); National Casualty Co. v. Dunn, 209 Ala. 484, 96 So. 576 (1923).

In response to this question Ricky Sparks gave the names of four people who he said had told him about threats. The testimony of Ricky Sparks that four people told him about threats made by appellant was hearsay and was not admissible. Riley v. State, 26 Ala.App. 203, 206, 155 So. 882 (1934); Biggs v. State, 20 Ala.App. 449, 103 So. 706 (1924); Hill v. State, 394 So.2d 106 (Ala.Cr.App.1981); Stokes v. State, 17 Ala.App. 27, 81 So. 363 (1919).

It is true that two of these four people, Rhonda Sparks and Cheryl Jones, took the stand and testified that the appellant made threats against Ricky Sparks in their presence. The State contends that this testimony renders the hearsay testimony harmless. We do not agree.

The appellant and Ricky Sparks each testified that the other was the aggressor and brought on the difficulty. Both were armed, one with a pistol and one with a sawed-off ax handle. Even if the testimony of Rhonda Sparks and Cheryl Jones could be said to have rendered harmless the hearsay testimony as to them, there remains the hearsay testimony of Ricky Sparks that his mother-in-law and the appellant’s ex-wife, Paulette Borden, told him of threats. Neither took the witness stand. We cannot say that this hearsay testimony did not injuriously affect the substantial rights of the appellant in the jury’s consideration of the case.

The record shows that after submission of the case to the jury, the jury requested additional instruction on the issue of self-defense, as follows: “Could you go over the self-defense thing when you charged us before we went in — could you go over that again — the claim of self-defense?”

The trial court then fully charged the jury again on the issue of self-defense.

For the error in admitting the hearsay testimony of Ricky Sparks of threats made by the appellant, the judgment of conviction must be reversed.

Ill

The appellant also contends that the trial court erred in allowing in evidence the testimony of Cheryl Jones.

The appellant filed a motion for discovery containing, among other things, a request for a list of all witnesses to be called by the State. The State filed an answer to the motion for discovery stating, among other things, that the names of witnesses to be called by the State are not discoverable. The trial court reserved ruling on the motion for discovery until oral argument could be held. The record indicates that the motion was never ruled on.

In brief, the appellant contends that the State agreed to provide the appellant with a list of the State’s witnesses. The State does not admit that such an agreement was made. It appears that a list of witnesses was attached to the indictment in this case. Such list did not include the name of Cheryl Jones.

On the trial the State offered Cheryl Jones as a witness. No objection was made by appellant before she testified. No objection to her appearing and testifying was made at any time by the appellant during the period of her testifying, and her testimony, direct and cross, covers more than five transcript pages. Another witness for the State testified immediately following Cheryl Jones and only at the conclusion of the testimony of such witness did the appellant object to the State’s calling Cheryl Jones as a witness.

Inasmuch as this case is to be tried again, it is probably unnecessary to rule upon the alleged error in overruling appellant’s objection to the testimony of Cheryl Jones, as this situation will not likely recur in a second trial. However, it may be observed that in the case of Peoples v. State, 418 So.2d 935 (Ala.Cr.App.1982), this court held that an appellant has no statutory or constitutional right to discover the names of the State’s witnesses.

The appellant did not object when Cheryl Jones was offered as a witness and made no objection to her testifying at any point during her testimony. Only after another witness had testified, immediately after Cheryl Jones, did the appellant interpose an objection to the State’s calling her as a witness. As stated in the case of Gilbreath v. Gilbreath, 278 Ala. 289, 177 So.2d 915 (1965): “... a party may not sit idly by and voice no objection to a question until after it is answered, speculating as to what the answer will be, and if unsatisfactory, thereafter invoke the ruling of the court.” See also Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974), and cases cited therein.

We find no error in the trial court’s overruling such objection.

Because of the admission of hearsay testimony concerning threats made by the appellant, the judgment of conviction by the lower court is reversed and the cause is remanded for further proceedings.

The foregoing opinion was prepared by the Honorable THOMAS E. HUEY, Jr., Retired Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

BOWEN, P.J., and HARRIS and SAM TAYLOR, JJ., concur.

TYSON, J., dissents without opinion.


author: HUBERT TAYLOR, Judge.

text:
    Douglas F. MARTY v. STATE.
    8 Div. 972.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    John Mark McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

This is an appeal from an alleged plea of guilty by the appellant, Douglas F. Marty, to a violation of the Alabama Controlled Substances Act. Ala.Code (1975), § 20-2-1, et seq.

A review of the record reveals the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were not adhered to by the trial court in accepting Marty’s plea. The State has declined to file a brief in opposition.

The judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    Louis A. VANECH, Appellant, v. HARTSFIELD AND SON, INC., and Prestressed Systems, Inc., Appellees.
    No. 82-2511.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1983.
    Rehearings Denied Feb. 3, 1984.
    Gary W. Lyons of Phillips, McFarland, Gould & Wagstaff, P.A., Clearwater, for appellant.
    John D. Kiernan of Gouldner, Reams, Marger, Davis, Piper & Kiernan, P.A., St. Petersburg, for appellee Hartsfield & Son.
    William Fletcher Belcher, St. Petersburg, for appellee Prestressed Systems, Inc.
   PER CURIAM.

We affirm the judgment in this mechanic’s lien foreclosure and contract action. One contention raised by appellant is that the award of prejudgment interest was not proper because there was not a conclusive determination of the exact amount due at the time of appellees’ demand upon appellant for payment. We affirm the award of prejudgment interest as proper in a suit for payment of a debt due under a contract. See Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955); Beckerman v. Greenbaum, 439 So.2d 233 (Fla. 2d DCA 1983); Robinson v. Peterson, 375 So.2d 294 (Fla. 2d DCA 1979); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978); Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978); Vacation Prizes, Inc. v. City National Bank of Miami Beach, 227 So.2d 352 (Fla. 2d DCA 1969). Compare Federal Deposit Insurance Corp. v. Carre, 436 So.2d 227 (Fla. 2d DCA 1983) (amount of debt not established by contract).

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


author: ANSTEAD, Chief Judge.

text:
    CRAIG R. WEINER ASSOCIATES, INC., Appellant, v. Arthur F. SHERDEN, et al., Appellees.
    No. 82-2416.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 1983.
    Rehearing Denied Feb. 15, 1984.

      H.L. Cooper, Jr., of O’Connell, Cooper, Parrish & McBane, P.A., West Palm Beach, for appellant.
    Paul B. Erickson, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellees.
   ANSTEAD, Chief Judge.

This is an appeal from a final summary judgment finding that appellant’s breach of contract action was barred by the Florida Statute of Frauds. We affirm.

In an attempt to buy a shopping center, Craig Weiner Associates, Inc., sent a letter to Sherden. Sherden was one of six partners who owned the center. Sherden signed the letter with the consent of the other five partners. When contractual negotiations failed, Weiner attempted to enforce the letter as a binding contract. The trial court ruled that the letter did not satisfy the requirement of the Statute of Frauds that all of the essential terms of the agreement be in writing.

At the outset, we note that this letter seems to show the parties’ clear intent to be bound. The question of intent to be bound is, however, distinct from the question of sufficiency under the Statute of Frauds. In fact, the Statute presumes that a contract was intended and executed. (Some cases ignore this distinction. Cf. Socarras v. Claughton Hotels, Inc., 374 So.2d 1057, 1060 (Fla. 3d DCA 1979).) In light of our holding on the Statute of Frauds issue, however, we do not decide whether the letter is sufficient to show the parties’ intent to be bound, nor do we decide whether the signature by the sellers’ agent is sufficient to bind all six sellers. Cf. Looman Realty Corp. v. Broad Street National Bank, 32 N.J. 461, 161 A.2d 247 (1960).

The Statute of Frauds requires that a contract for the sale of land be proved by a written memorandum that contains all the essential terms of the sale and that is signed by the parties to be charged. § 725.01, Fla.Stat. (1981); Socarras. We believe that the trial court correctly concluded that the letter in the present case was not sufficiently detailed to satisfy the former requirement.

Weiner’s letter contains a description of the property, its price, and financing arrangements. The letter, however, omits many important details. For example, the financing terms mention a second mortgage and a penalty for late mortgage payments, but do not provide details of either. The letter also provides that the buyer may inspect the leases and the structure before final acceptance. The extent of these inspections and their effect on the buyer’s duties is unclear. Finally, the letter makes no mention of the present tenants’ leases, the sellers’ warranties, the documents required at closing, or the allocation of closing costs.

The omitted terms must be assessed in the context of the particular transaction involved. Cf. Socarras, at 1060. We agree with the trial court’s determination that the terms omitted from the letter are essential to this complex, multi-million dollar transaction. While some of these terms might be supplied by custom in everyday contractual transactions, the uniqueness of this transaction and the corresponding absence of a standard practice for most of the omitted terms prevents us from doing so here. The courts are simply not authorized to draft a contract for the parties when the parties themselves have failed to reach agreement on essential details.

Accordingly, we affirm the lower court’s holding that the letter is insufficient to satisfy the requirements of the Statute of Frauds.

BERANEK and HURLEY, JJ., concur.

      . The letter states:
      Sept. 2,1981
      Floyd Cerf, Esq. Vice President
      The Keyes Company
      102 N. 28 Ave.
      Hollywood, Florida 33020
      Re: K-Mart Shopping Center Phases 1 and 2 including land and buildings U.S. 1 in Stuart, Florida
      Dear Floyd:
      This letter shall serve to confirm that we will be willing to proceed towards the purchase of the above captioned property upon generally the following terms and conditions:
      Price to be $5,600,000.00 U.S.
      Assumption of the present first mortgage $1,250,000.00 at 8¾⅛% for 24 years self-amortizing. Assumable in it’s present form, callable 2/2/89 * Purchase Money Mortgage of $3,850,-000.00 upon the following terms: Interest rate to be 9% with 6% payable and 3% simple to accrue to the balloon. Interest to be payable monthly in arrears, penalty if late. Term to be seven years from closing at which time the entire principle balance plus the accrued interest of 3% each year shall be due and payable. At the option of the borrower (Buyer), this mortgage may be extended for three additional years with the interest rate being escalated to 12% with 9% payable and 3% accruing. In that event, the balance of principle would be due at the end of the tenth year plus the 10 years of interest that has accrued.
      Cash to be $1,300,000.00 payable as follows: part of which seller may elect to take in 1982
      $700,000.00 at closing
      $300,000.00 on Jan. 30,1983
      $300,000.00 on Jan. 30, 1984
      This split funding-shall be considered as cash and would therefore not be applicable to any interest charges.
      A deposit of $10,000.00 would be placed with Miller and Schwartz, P.A. as escrow agent during the initial inspection period of leases, bills of any nature, and structural. The inspection period shall be 30 days from Seller’s acceptance of this letter. Following Buyer’s satisfaction with the inspections, an additional $15,000.00 shall be added to the deposit and the total of $25,000.00 shall be transfered to the Seller’s attorney pending closing to be held in escrow. Closing to be within 60 days following inspections. Should Buyer be dissatisfied with the results of his investigation he may notify Seller of such and either provide time to cure, or cancel his obligation to purchase and receive full refund of his deposit. This shall apply only during the initial 30 day inspection period.
      * Seller will subordinate second mortgage to the amount called.
      Purchase Money Mortgage to-be paid-in full upon sale of property by-Buyer.
      This offer is open for Seller’s acceptance until 19,
      Thursday, Sept.-4,1981 at 5 P.M.
      Please advise as to how your client wishes to proceed. If this meets with his acceptance, then we will advise our attorneys to work jointly with the Seller’s attorney towards the preparation and execution of a formal contract for purchase and sale. Buyer may assign this acceptance to a partnership in which Buyer participates.
      Sincerely yours,
      S/ Craig R. Weiner Craig R. Weiner President
      CRW: nk
      The above offer is acceptable to us and for $10.00 and good and other valuable consideration we hereby agree to the above terms and conditions of sale.
      SELLER(S)
      S/ Arthur F. Sherden Agent for Partners
      Dated this 10th day of September, 1981.
      WITNESS
      S/ Thomas H. Thurlow
      (The indicated modifications were done by the parties during negotiations.)


text:
    Marion CANTOR, Appellant, v. Peter MATOZZO, Appellee.
    No. 82-2372.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 1983.
    Rehearing Denied Feb. 22, 1984.
    Joseph S. Karp and Roberta J. Karp of Bernstein, Narkier, Sharff, Monchick & Karp, P.A., West Palm Beach, for appellant.
    John Jorgensen of Scott, Royce, Harris & Bryan, P.A., Palm Beach, for appellee.
   PER CURIAM.

The issues are all factual. We find substantial competent evidence to support the trial court’s extensive findings of fact. Palardy v. Igrec, 388 So.2d 1053 (Fla. 4th DCA 1980).

GLICKSTEIN and HURLEY, JJ., and SMITH, CHARLES E., Associate Judge, concur.


author: DANIEL S. PEARSON, Judge.

text:
    The STATE of Florida, Appellant/Cross-Appellee, v. Preston Eleree WILLIAMS, Jr., Appellee/Cross-Appellant.
    No. 83-1209.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellant/ cross-appellee.
    Greene & Cooper and Robyn Greene, Miami, for appellee/cross-appellant.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   ON REHEARING ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

The State has moved for a rehearing of our order denying without opinion its motion to dismiss the defendant’s cross-appeal. We grant the rehearing and adhere to our ruling for the reasons which follow.

The State’s appeal arises from a trial court order granting the defendant’s motion for a new trial on the ground that in two instances the court incorrectly instructed the jury in response to questions asked by the jury during deliberations. The defendant’s cross-appeal arises from that part of the same order which denied the defendant’s motion for new trial on other asserted grounds and from an order denying his motion for judgment of acquittal. The State’s motion to dismiss the defendant’s cross-appeal contends, in essence, that a defendant’s right to appeal is governed by Rule 9.140(b)(1) of the Florida Rules of Appellate Procedure (Appeal Proceedings in Criminal Cases), which contains no provision allowing a defendant to appeal from an order denying a new trial or an order denying a motion for judgment of acquittal.

While it is true that this court held in Griffith v. State, 171 So.2d 597 (Fla. 3d DCA 1965), that a defendant may not appeal from an order denying a motion for new trial and that we and others have held, in an arguably analogous setting, that defendants may not cross-appeal a pretrial order which denies in part his motion to suppress, see State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981); State v. DeCo-ningh, 396 So.2d 858 (Fla. 3d DCA 1981); State v. Clark, 384 So.2d 687 (Fla. 4th DCA 1980), none of these holdings dictates the answer to the precise question before us, that is, whether a defendant in a criminal case may cross-appeal from an order denying a motion for new trial on some grounds where the State has appealed the grant of a new trial based on other grounds and, if so, whether the defendant may additionally have reviewed the denial of his motion for judgment of acquittal.

In 1980, the Fourth District Court of Appeal decided State v. Clark, 384 So.2d 687. In Clark, the court' granted the State’s motion to dismiss the defendant’s cross-appeal from an order which only partially granted his motion to suppress, holding that the court did not have jurisdiction to entertain the cross-appeal. From Clark the notion has sprung that in the absence of a provision which would allow the defendant to take a direct appeal of a particular ruling, there can be no cross-appeal. Although, as will be seen, infra n. 6, Clark is correct when confined to its context, that is, a cross-appeal from an interlocutory order denying in part a motion to suppress, it does not justify the broader holding urged here by the State that a defendant cannot cross-appeal from that part of an order denying his motion for new trial where the State has appealed another part of the same order granting the motion for new trial.

Clark purports to be a case of first impression:

“The Rules do not provide for appeals by defendant from pre-trial orders denying a motion to suppress. Defendant argues that once the State has appealed a pretrial order of suppression this opens a way for a cross-appeal by defendant of any unfavorable portion of the order. We find no authority directly answering this question.” 384 So.2d at 690 (emphasis supplied).

But Clark clearly overlooked earlier authority which, if not directly answering the question, at least pointed the way to the answer.

In State v. McInnes, 133 So.2d 581 (Fla. 1st DCA 1961), the State appealed an order quashing two counts of a four-count information, and the defendant cross-appealed that part of the order denying his motion to quash the remaining counts. The State moved to dismiss the cross-appeal, contending that there was no rule or statute authorizing a defendant to cross-appeal. Addressing this contention, the court noted there was nothing in the rules prohibiting a criminal defendant from taking a cross-appeal and that civil actions permit cross-appeals. The court then stated that “cross-assignments of error are allowable only when they could have supported a separate and distinct appeal, unless they relate to the same judgment from which the main appeal is taken.” 133 So.2d at 583 (emphasis supplied). Although the law did not authorize a defendant to take an appeal from the denial of a motion to quash, the defendant's cross-appeal of the denial of the motion to quash was permissible “since it relates to the same order from which the State’s appeal is taken.” 133 So.2d at 583. Accordingly, the court denied the State’s motion to dismiss.

The subsequent history of State v. McInnes indicates that the Florida Supreme Court gave at least tacit approval to the proposition that a defendant could cross-appeal from the same order from which a State appeal is taken. In McInnes, the District Court of Appeal remanded the case to the trial court because the order under review did not indicate whether the trial court, in denying the defendant’s motion to quash two of the counts, had passed upon the constitutionality of the statute under which the charge in the information was brought. The District Court reasoned that had the constitutional validity of the act been adjudicated when the motion to quash was ruled upon, then under the then existing provisions of the Florida Constitution, jurisdiction of the appeal would be vested in the Supreme Court. Upon remand, the trial court specifically upheld the constitutionality of the statute, and the abeyant appeal was lodged in the Florida Supreme Court. Thereafter, the Supreme Court determined that it was without jurisdiction because no matter how viewed, the order upholding the constitutionality of the act was not a final judgment, State v. McInnes, 147 So.2d 519 (Fla.1962), and transferred the appeal to the District Court. In so doing, the Supreme Court stated:

“[W]e apprehend that that tribunal may wish to re-examine the question relative to the right of the defendant to file a cross appeal because if the four charges are considered as in effect four distinct prosecutions which could proceed independently, under four separate informa-tions, then the defendant for all practical purposes is undertaking to raise by cross appeal, in an appeal properly taken by the State from a decision affecting two counts, or prosecutions, a ruling made in a different and independent prosecution.” 147 So.2d at 521.

Significantly, the Supreme Court found no impediment to the defendant’s cross-appeal, so long as it arose from the same order in the same prosecution.

This court followed McInnes in State v. McKinney, where, in an unreported order, it denied the State’s motion to strike the defendant’s cross-assignment of error and that portion of the defendant’s brief devoted to the cross-assigned error. Specifically relying upon State v. McInnes, 133 So.2d 581, we ruled in McKinney that where the State has appealed from an order suppressing certain cocaine which had been seized from the defendant, the defendant may cross-appeal from that portion of the order which denied his motion to suppress all other evidence. We certified the propriety of that ruling as passing upon a question of great public interest, and in State v. McKinney, 212 So.2d 761 (Fla.1968), the Supreme Court held that we properly answered the question and approved our order.

Thus, the state of the law after the Supreme Court’s approval of this court’s order in McKinney was quite clearly that where in a criminal case the State has appealed an order contending that the relief given the defendant was error, the defendant was permitted to cross-appeal such order to assert that the order gave him less than the full relief sought by his motion even though no rule or statute authorized a direct appeal by the defendant from the order.

We turn now to the question whether Mclnnes and McKinney, decided before the current Florida Rules of Appellate Procedure came into effect, have been modified by these rule changes and, if so, to what extent.

The Florida Rules of Appellate Procedure permit appeals from “orders granting new trial in jury and non-jury civil and criminal cases _” Fla.R.App.P. 9.110(a)(3). Rule 9.110(g) does not distinguish between civil and criminal cases and simply provides that an appellee may cross-appeal by serving a notice within the prescribed time. Thus, there would appear to be no impediment to a cross-appeal where an appeal has been taken from an order granting a new trial in a criminal case, unless some exception for the criminal case is made elsewhere in the rules.

Rule 9.140(a) provides that “[ajppeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.” This section, according to the Committee Notes,

“makes clear the policy of these rules that procedures be standardized to the maximum extent possible. Criminal appeals are to be governed by the same rules as other cases, except for those matters unique to criminal law which are identified and controlled by this rule.”

Since nothing in Rule 9.140 prohibits a cross-appeal in a criminal case, and since the need for specific authorization for such a cross-appeal was directly rejected in State v. McInnes, 133 So.2d 581, approved in State v. McKinney, 212 So.2d 761, it seems clear that a criminal defendant does have a right to cross-appeal where the State has sought review of an order granting a new trial.

We point out, however, that this right of cross-appeal, provided for solely in Rule 9.110(g), is thereby limited to the appeals contemplated by Rule 9.110(a), that is, in the criminal case, appeals from final orders or orders granting a new trial. In contrast, the' appellate rules in existence when McKinney was decided contained no such limitation. Thus, while McKinney still stands as controlling authority for the proposition that a criminal defendant is permitted to cross-appeal a portion of an order adverse to him even though no rule or statute would authorize a direct appeal by the defendant from the order, McKinney is no longer authority for the proposition that a defendant is permitted to cross-appeal an order granting in part his motion to suppress, since such an order is not final. However, the fact that the present appellate rules have abrogated the defendant’s right to cross-appeal from an interlocutory suppression order has no effect on the case before us. Here the order from which the State has appealed is an order granting a new trial, an appeal to which the right of cross-appeal attaches under Rule 9.110(g).

Finally, we address whether the defendant’s cross-appeal is to be limited to a review of the order granting a new trial which the State has appealed or may be expanded, as the defendant suggests, to include a review of the trial court’s separate order denying the defendant’s motion for a judgment of acquittal. Stated otherwise, has the Mclnnes-McKinney rule that a defendant’s cross-appeal must arise from the same order been altered by subsequent developments in the law?

Florida Rule of Appellate Procedure 9.110(h) provides:

“Scope of Review. The court may review any ruling or matter occurring prior to filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.”

The Committee Notes to the rule state:

“Under section (h) of this rule the scope of review of the court is not necessarily limited to the order granting a new trial. The Supreme Court has held that ‘appeals taken from new trial orders shall be treated as appeals from final judgments to the extent possible_’ Bowen v. Willard, 340 So.2d 110, 112 (Fla.1976). This rule implements that decision.”

Bowen v. Willard, 340 So.2d 110 (Fla.1976), referred to in the Committee Note, overruled prior holdings that an appellate court may not consider the question of a directed verdict on review of an order granting a new trial. These earlier holdings, according to Bowen, had been “superseded by the Florida Appellate Rules to the extent that they prevent the determination of issues which are ripe for appellate review in a unified appeal.” 340 So.2d at 112. Thus, Bowen held, as Rule 9.110(a)(3) now reflects, that an appeal from a new trial order is to be treated as an appeal from a final judgment, and the appellate courts have the authority to deal with other appealable issues. See Fincher Investigative Agency, Inc. v. Scott, 394 So.2d 559 n. 1 (Fla. 3d DCA), rev. denied, 402 So.2d 609 (Fla.1981) (on direct appeal from order granting a new trial, appellant could raise error in denial of motion for directed verdict); Royal Castle Systems, Inc. v. Fields, 354 So.2d 947, 948 (Fla. 3d DCA 1978) (same). Since, as we have previously noted, the policy of the appellate rules is that criminal and civil appeals are to be treated alike, except for matters unique to criminal cases, it is clear that the rules have expanded the scope of permissible review beyond that allowed in Mclnnes and McKinney and that Williams’ cross-appeal, being otherwise permitted, may bring up for review not only his alternative grounds for the new trial which were rejected by the court, but, as well, the denial of his motion for judgment of acquittal. See Seaboard Coastline Railroad Co. v. Dennard, 399 So.2d 490, 492 n. 1 (Fla. 3d DCA 1981) (on direct appeal from order granting a new trial, court had jurisdiction to consider cross-appeal regarding alleged error in admission of evidence).

Accordingly, rehearing is granted, and the State’s motion to dismiss the defendant’s cross-appeal is again denied.

      . Rule 9.140(b)(1) provides:
      “(1) Appeals Permitted. A defendant may appeal:
      "(A) A final judgment adjudicating guilt;
      "(B) An order granting probation, whether or not guilt has been adjudicated;
      "(C) Orders entered after final judgment or finding of guilt, including orders revoking or modifying probation;
      “(D) An illegal sentence; and
      “(E) A sentence when required or permitted by general law.
      "A defendant may not appeal from a judgment entered upon a plea of guilty; nor may a defendant appeal from a judgment entered upon a plea of nolo contendere without an express reservation of the right to appeal, from a prior order of the lower tribunal, identifying with particularly [sic] the point of law being reserved."
      Rule 9.130, which governs proceedings to review non-final orders, provides in subsection (a)(2) that “[r]eview of non-final orders in criminal cases shall be as prescribed by Rule 9.140.”

      . In State v. Chadroff, 234 So.2d 412 (Fla. 3d DCA 1970), we too found nothing inherently impermissible in a defendant’s cross-appeal taken from an order which the defendant was not authorized to directly appeal. In Chadroff, the State appealed an order dismissing the indictment on the ground that the defendant had been immunized from prosecution. The defendant cross-appealed from an order denying his motion to dismiss which challenged the constitutionality of the grand jury. Although this court dismissed the cross-appeal as impermissible, it did so (following the rule of, and citing to, Mclnnes) only because "the cross-appeal does not relate to the same order from which the State’s appeal is taken." 234 So.2d at 415.

      . The action of this court, although unreported, is described in State v. McKinney, 212 So.2d 761 (Fla.1968).

      . The reasoning in State v. Clark, 384 So.2d 687, that the limitations on the defendant’s right to take a direct appeal found in Rule 9.140(b)(1) are to be read as limitations on his right to cross-appeal is directly contrary to McInnes and McKinney. Since we are bound by McKinney, see Hoffman v. Jones, 280 So.2d 431 (Fla.1973), we must reject Clark on this point.

      . Fla.R.App.P. 3.5 (1962) governed cross-assignments of error and contained no restriction on the right to cross-assign error.

      . It appears, therefore, that State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981); State v. DeConingh, 396 So.2d 858; and State v. Clark, 384 So.2d 687, where the courts dismissed the defendants’ cross-appeals which sought suppression of more evidence than the trial court order provided, were correctly decided. State v. Barreiro, 432 So.2d 138, 139 n. 2 (Fla. 3d DCA 1983); State v. Fisher, 416 So.2d 871 (Fla. 3d DCA 1982); State v. Roberts, 415 So.2d 796 (Fla. 3d DCA 1982); and State v. Pratt, 386 So.2d 1249 (Fla. 4th DCA 1980), in which the courts, employing the same theory of no jurisdiction over the defendants’ cross-appeals, rejected the defendants’ contentions that the orders on appeal could be affirmed for reasons other than those stated in the orders, are for like reason correct, since the orders were non-final in nature.

      . We note, without deciding, that the State’s right to cross-appeal might be limited by double jeopardy or other constitutional considerations.


author: RYDER, Judge.

text:
    W.H. MARTIN and C.H. Martin, Appellants, v. PINELLAS COUNTY, a political subdivision of the State of Florida, and H. George Wilde and Marjorie E. Wilde, Appellees.
    Nos. 83-1466, 83-1912.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 1983.
    Rehearing Denied Jan. 30, 1984.

      Martin L. Garcia and Chris W. Alten-bernd of Fowler, White, Gillen, Boggs, Vil-lareal & Banker, P.A., Tampa, for appellants.
    John T. Allen, Jr. and Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellee Pinellas County.
   RYDER, Judge.

Water, water every where,

And all the boards did shrink;

Water, water every where,

Nor any drop to drink.

Today, we obliquely address an ever-growing problem to which a young Samuel Coleridge made but brief reference almost two hundred years ago. That problem is the availability for mankind today and tomorrow of a sufficient amount of life-maintaining drinkable water. That problem is more acute in peninsular Florida, surrounded by insidiously encroaching salt water and other insults to its delicate aquifer. Actions which threaten the continued supply of this most basic element must receive the immediate attention of all. Our attention has been raised, and thus we write.

W.H. Martin and C.H. Martin appeal from the trial court’s entry of a preliminary mandatory injunction, and the trial court’s denial of the Martins’ motion to dissolve that injunction. We affirm.

The Martins own approximately eighteen acres of land in Hillsborough County. On that land, they operated a borrow pit and landfill from 1978 until 1982. Originally, the landfill did not have a permit for operation from the Hillsborough Environmental Protection Commission (HEPC). A permit was eventually obtained to place construction demolition debris in the landfill. A permit for excavation and filling with construction demolition debris was also issued for the borrow pit.

Pinellas County operates the Eldrige-Wilde wellfield which is located on and in Pinellas County land. This wellfield supplies drinking water to the populace of Pinellas and Pasco Counties. The Martins’ landfill and borrow pit is situated three quarters of a mile from the periphery of the wellfield.

In November 1982, Pinellas County filed suit against the Martins and others seeking injunctive relief and damages. The complaint, as amended, alleged that the Martins had buried illegal material in the pit area. The fill material was described as “noxious and deleterious material ... dangerous to the environment and in particular to maintaining a clear and potable water supply....” Pinellas demanded removal of the material and damages as well as other relief.

In June 1983, an emergency motion for a mandatory injunction was filed by Pinellas County. The motion, based on testing of the property conducted by the County, sought an order requiring the Martins to immediately remove and dispose of the materials. It was alleged that testing revealed high levels of substances dangerous to the Pinellas County water supply, the environment, and surrounding public wells.

In response, the Martins filed several motions with the trial court, including a motion for continuance. Upon denial of the motions, the Martins filed petitions for writs of prohibition, mandamus and certio-rari with this court. We denied all of the petitions and allowed the trial court to proceed with the hearing on the emergency motion.

The hearing was held on June 15, 1983. The evidence presented dealt with: the geological makeup of the relevant surface and subsurface areas; the type of landfill materials permitted; the type of materials actually buried; the pertinent environmental regulations; the testing procedures utilized; the validity of the test results; the contaminants discovered; the actual, probable and potential effect of the pollution on the wellfield; the effect of ingestion of the chemical contaminants on human beings; thé potential dilution of the chemicals as they traveled towards the wellfield; and the cost of excavation and disposal of the landfill material.

The trial court found that “dangerous substances, contaminants and pollutants” exist on the Martins’ property. The court found that the substances are harmful and exist as a result of illegal dumping activities on the property, which the owners either participated in or knew about, thus making the owners responsible for the presence of the substances. The substances were described by the trial judge as “an unbelievable collection of material of the most odious nature.... ” The trial judge added:

The defendants would have us assume a posture of chance, hope and optimism with regard to the substances, their danger, their migration. The plaintiffs, on the other hand, are espousing a course of safety and ecological conservatism, which is the course we must follow.
The best evidence presented today would indicate that these substances have already begun their infusion into the ambient earth around their dumping location, and from there into the surficial aquifer and Floridan aquifer. The possible, indeed the probable effects of these substances, should they continue to infuse into the aquifer, are totally unacceptable.
We are, after all, dealing with the single most necessary substance for the continuation of life, and that substance is water. Any danger to that primary necessity is ecologically and humanly unacceptable.
The only acceptable solution that this Court sees to what I find as a clear, present and imminent danger, and the danger with which we are presently confronted, is the immediate excavation, removal and safe disposal of these substances.

The trial court granted the emergency motion for a mandatory injunction, directing appellants to remove all buried fill in their landfill and borrow pit. Appellants were directed to dispose of the fill in a legally and ecologically acceptable manner with all due and deliberate speed. No additional dumping into the area would be allowed without leave of the court.

Several factors must be found before a court may issue a temporary mandatory injunction. Generally, such an injunction is proper where irreparable harm will result unless the status quo is maintained; a party has a clear legal right to the injunction; that party has no adequate remedy at law; and in certain cases, considerations of public interest. United States v. Midwest Solvent Recovery, Inc., 484 F.Supp. 138 (N.D.Ind.1980); Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642 (1976); Florida Land Co. v. Orange County, 418 So.2d 370 (Fla. 5th DCA 1982).

We find no need to review in great detail the evidence presented. Various rules of the Department of Environmental Regulation and the HEPC have been violated by appellants. Pinellas County has shown that as a result of these violations, there exists a real and substantial danger to the continued vitality of the Eldrige-Wilde wellfield. In fact, the record is replete with expert testimony and other evidence which substantiates the findings of the court below, and supports the trial court’s entry of a temporary mandatory injunction. See United States v. Vertac Chemical Corp., 489 F.Supp. 870 (E.D.Ark. 1980). The elements necessary for issuance of the injunction have been shown by the appellee County. See United States v. Midwest Solvent Recovery, Inc., supra. Although the appellants have presented evidence in support of their position, it is for the finder of fact to resolve conflicts and draw factual conclusions. We shall not disturb the findings below. See Largo Hospital Owners, Ltd. v. International Glass and Manufacturing Co., Inc., 410 So.2d 518 (Fla. 2d DCA 1982); Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981); Consolidated Mutual Insurance Co. v. Hampton Shops, Inc., 332 So.2d 101 (Fla.3d DCA 1976).

The issuance of the temporary mandatory injunction is affirmed. To do otherwise would leave the trial court and other courts of this state powerless to protect the public and the environment from the apparent harm which results from the illegal burying of deleterious materials. See Commonwealth of Pennsylvania v. Coward, 489 Pa. 327, 414 A.2d 91 (1980).

During the pendancy of this appeal concerning entry of the preliminary mandatory injunction, appellants filed with the trial court a motion to dissolve the preliminary injunction. That motion was filed pursuant to Florida Rule of Civil Procedure 1.610(e), which provides:

(e) Motion to Dissolve. A party against whom a restraining order or an injunction has been granted may move to dissolve it at any time.

Appellants claimed that new evidence had been discovered which showed that the landfill did not pose an imminent danger to the wellfield. The trial court declined to consider the motion to dissolve, stating that the parties had adequate time for testing and preparation prior to entry of the preliminary mandatory injunction. The court expressed its belief that with additional time, the appellees would likely have available additional study and testing results to support their position. The trial court indicated that pending this court’s decision on the propriety of the issuance of the preliminary injunction, it would not reconsider the issue.

Under the circumstances of this case, we agree with the trial court’s decision on the motion- to dissolve. We note and emphasize, however, that the appellants have the right to a final hearing before the trial court on the merits of this cause. At that time, both parties shall have the opportunity to present any additional evidence which will enable the trial court to determine the necessity for a permanent injunction and otherwise fashion a final judgment.

AFFIRMED.

HOBSON, A.C.J., and CAMPBELL, J., concur.

      . S.T. Coleridge, The Rime of the Ancient Mariner, pt. II (1798).