text:
    Edward WILLIAMS v. STATE.
    6 Div. 225.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-204.

      Herb B. Massie of Shores, Larkin & Mas-sie, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case has been replete with anachronisms throughout its course in the trial court and on appeal. A jury found this appellant guilty under an indictment returned on October 8, 1982, charging that defendant “did unlawfully own, possess, keep or train a dog or dogs with the intent that such dog or dogs be engaged in an exhibition of fighting with another dog, in violation of Section 3-1-29 of the Code of Alabama, 1975, as amended, _” According to 1983 Cumulative Supplement of Code of Alabama 1975, the cited section of Title 3, on the subject of ANIMALS, § 3-1-29, the particular Code section constituted a codification of Acts 1982, No. 82-461 p. 739, effective May f 1982, which provides, inter alia, “(a) It shall be a Class C felony for any person: (1) to own, possess, keep or train any dog with the intent that such dog shall be engaged in an exhibition fighting with another dog.” The indictment contained no allegation to the effect that the crime was committed subsequent to the beginning of the effective date of the creation of the statutory offense.

According to the evidence for the State that consisted of the testimony of three witnesses, a deputy sheriff, and two officials of the Birmingham Humane Society, the investigation of the offense charged was commenced by the deputy sheriff, while acting as an undercover animal cruelty officer on April 30, 1982. According to his testimony, he observed pit bull dogs on chains behind the house where appellant lived; the witness determined from the appearance of the dogs that there had been cruelty to them, which fact is confirmed by other evidence in the case, particularly pictures of some of the dogs and expert testimony on the part of two officials or employees of the Birmingham Humane Society. The witness testified extensively as to the conduct of defendant in showing the witness his dogs, guiding him about the premises and to a structure about three or four blocks from defendant’s residence, which defendant said he had built for presenting and exhibiting dog fights that he had conducted there. Toward the end of the testimony of the deputy sheriff on direct examination, we find:

“Q. If you can remember, to the best of your recollection, what did the defendant say to you and you say to him after you got back to his house?
“A. Just general dog fighting talk. One thing stood out in particular.
“Q. And what was that, please, sir?
“A. He was drinking a beer, he had a beer in his left hand and he made the statement, ‘ — excuse me, ladies — ’ there is three things I’m going to do, drink this beer, [the vulgar four-letter verb is here omitted] these women and fight these dogs.’
“Q. And after he made that statement, what if anything did you do?
“A. We left about that time. Said our goodbyes and left.
“Q. On May the 10th, did you have an opportunity to obtain a search warrant for the premises there at 4229 School Street in Adamsville?
“A. Was it the 9th or 10th?
“Q. Well—
“A. Well, yes, sir, I did.
“Q. Now, when did you execute the search warrant?
“A. On the 10th or 11th. Hold on. On the 11th, May the 11th at 9:20 in the morning.
“Q. Well, when you went to the School Street?
“A. All right, sir. We went to School Street and still had the same dogs on the same chains, so we confiscated the dogs. Served the search warrant first and then confiscated the dogs.
“Q. Was Mr. Williams present?
“A. At first he was not. I think his brother went after him. He got there approximately fifteen minutes after I did.”

The record shows that the prosecution for “violation of the act to prohibit dog fighting” commenced by warrant of arrest issued on May 12,1982, that defendant was committed to jail on that date, and that on May 24, 1982, the District Court entered an order binding defendant over “to await the action of the grand jury.”

The undisputed evidence, including the testimony of defendant, shows that defendant, about 28 years of age, lived in the house with his mother and owned at least eight pit bull dogs, which he kept in the yard of the house where he and his mother lived in Adamsville. He was a known dog fighter, who had bought and sold dogs and engaged in dog fights for a long time. He testified that he knew about the new anti-dog fight law and that he had not engaged in dog fights or allowed any of his dogs to engage in dog fights from the time the law went into effect. In addition to the pit bull dogs, defendant owned some beagles. He testified:

“Q. Now those pit bull dogs. How did you acquire those dogs?
“A. I acquired them as, you know, pets, but I was using them, you know, some times for fighting.
“Q. When did you get those dogs; do you recall?
“A. I had them about, I imagine, a year and a half, two years, somewhere along there.”

About the time of the institution of the prosecution of the case, the pit bull dogs were confiscated by the State and placed in the Birmingham Humane Society until after euthanasia of them in accordance with an order in a proceeding brought in equity in the Jefferson County Circuit Court.

At the sentencing hearing, the court sentenced defendant to imprisonment for two years and placed him on probation for the same length of time. In addition, the court ordered that defendant make restitution of $3,000.00 to the Humane Society or “Humane Shelter,” as it is named in the record, which apparently represented almost half of the charges for keeping the dogs.

The element of time has been a complicating factor in this case, not only on the trial thereof, and in the intervening stage between the judgment of conviction and the filing in this Court of the record proper and the transcript of the proceedings, but also in what has occurred or has failed to occur within the proper time in this Court. Some light is shed upon the reasons for such complications by the following portion of the transcript at or near the conclusion of the sentencing hearing:

“MR. MASSEY [Defendant’s attorney]: Your Honor, I am not expressing an opinion on his ability to repay the Humane Society restitution, I expressed that earlier today. I am talking about his indigency status.
“THE COURT: No dice. Now, another sheet of paper with appeal on it.
“Mr. Williams, the bill was 6100 dollars, I have cut it in half, to remove any question in my mind that the bill might have been reasonable, okay....
“All right. Notice of appeal; right?
“MR. MASSEY: Right. And I think, Your Honor, we need it on the record for purposes of appeal that Your Honor knowing Mr. Williams does not work, nevertheless, denied indigency status.
“THE COURT: Well, I know he has an income, I have been told that he sells drugs. I don’t know that I can prove that. I can’t prove it.
“MR. MASSEY: I don’t think the Probation report even reflects that, Your Hon- or.
“THE COURT: What is your source of income?
“MR. WILLIAMS: Income?
“THE COURT: Yes.
“MR. WILLIAMS: Where I was working at?
“THE COURT: How did you pay this lawyer?
“MR. WILLIAMS: Help from my brothers and such.
“THE COURT: How much is your bill, Herb, if you want to say, and how much has he paid?
“MR. MASSEY: Your Honor, I don’t know how much he has paid, but I would say that it is probably less than one-third of what the total bill is. And the bill should have been probably double what it was primarily based on the fact we had a proceeding at the time when Mr. Williams first came into our office that we were not aware of in Circuit Court in Equity, brought by the Humane Society to destroy the dogs, which was subsequently compromised. But, it was compromised after the hearing, briefs and arguments.
“THE COURT: Well, how much was your bill?
“MR. MASSEY: I believe it was ten thousand dollars.
“THE COURT: So, he has paid you over twenty-five hundred dollars?
“MR. MASSEY: I don’t believe so, I believe he has paid me considerably less than that.
“MR. WILLIAMS: I guess ten or eleven.
“THE COURT: Eleven hundred dollars?
“MR. WILLIAMS: About somewhere like that.
“THE COURT: Approximately. Now you have an account payable with this lawyer, do you not, for the balance? You owe him eighty-nine hundred dollars?
“MR. WILLIAMS: I will owe him.
“THE COURT: Is that right? The bill was ten thousand; right?
“MR. WILLIAMS: Yes.
“THE COURT: Another piece of paper, marked. Well, that is all right. I will just stop there. Anything else? Herb, I like to take care of my lawyers, I just can’t accommodate you this time, my friend.
“MR. MASSEY: Your Honor, I am not asking you to accommodate me, I am not asking that I be appointed as counsel. I am asking that Mr. Williams be afforded the opportunity to appeal this thing.
“THE COURT: I have noted that he has appealed. Get out there in the great American capitalistic way of life and pay for it. He owes you eighty-nine hundred dollars, he has paid you eleven hundred dollars. He is going to pay the court costs, he is going to pay the Humane Shelter. He may have to change his mode of living, I hope he does. Talk to this man, Kitt, or somebody. He is on probation. If I could get Mr. Williams to work, it would have been a good day. Talk to our bailiff, Mr. Williams, and be sure you go by Probation today. Thank you.
“MR. WILLIAMS: Yes, sir.
“END OF PROCEEDINGS”

During the sentencing hearing, there were matters considered by the trial court in addition to those referred to in the above-quoted extracts from the transcript, including defendant’s “MOTION FOR NEW TRIAL, TO SET ASIDE VERDICT AND ALTERNATIVELY FOR DIRECTED VERDICT OF ACQUITTAL,” which will hereinafter be considered in dealing with one or more of the issues presented on appeal.

On April 25,1984, the Clerk of this Court addressed a letter to both of the lawyers representing the defendant on the trial of the case advising them that the Court had instructed her to notify them “that the appellant’s brief in this case was due to be filed on or before April 13, 1984, but has not been filed to date,” and that pursuant to Rule 45B, A.R.A.P., this Court would consider only questions or issues presented in briefs. The Clerk properly and courteously also advised them in the letter of the holding by the U.S. Eleventh Circuit Court of Appeals in the case of Mylar v. State, 671 F.2d 1299 (1982), to the effect that “the failure to file a brief in any non-frivolous appeal falls below the standards of competence expected and required of counsel in criminal cases and therefore constitutes ineffective assistance.” By letter of May 1, 1984, Mr. Massey wrote the Clerk, advising her that he was “the only attorney of record in the captioned matter, that Tom Larkin does not represent Mr. Williams on Appeal.” Mr. Massey further stated in his letter that, “date on which to file Brief slipped because of problems with filing a Brief and requested 10 additional days in which to file a brief.” The letter was not received by the Clerk’s office until May 4, 1984. On that date the Clerk wrote Mr. Massey as follows:

“Please be advised that the above-styled appeal was submitted to the Court on brief of appellee on May 3, 1984. The Court has instructed this office to notify you that brief of appellant will be considered by this Court when and if filed.”

Appellee’s brief on May 3, 1984, contained the following:

“Defendant has not filed a brief in this case. On April 25, 1984, this Court informed counsel for the Defendant of their failure to file a brief. Since neither party has raised any issues on appeal, this Court should affirm the defendant’s conviction. Rule 45(b) A.R.A.P.”

In due course, the record on appeal was delivered by a Judge of this Court to the undersigned for his study, which resulted in a conclusion by the undersigned that he should prepare a memorandum to this Court recommending that, as no brief from appellant had been filed, the judgment of the trial court should be affirmed without an opinion. Prior to the completion of such memorandum, the writer was informed that on June 26, 1984, appellant’s attorney had filed a brief and argument on behalf of appellant; on July 5, 1984, appellee filed a “motion that appellee be granted” a twenty-one (21) day enlargement of time for appellee “to file a brief on the merits,” which motion was granted by a Judge of this Court. Within the time requested, on July 27, 1984, appellee filed its brief and argument, and since that date the writer, at such times as the opportunity was presented, has been in the process of study of the issues now before this Court, which are three in number and which we now proceed to discuss.

I.

By this issue, appellant contends that “§ 1-29 [§ 3-1-29], Code of Alabama is unconstitutional.” Appellee presents its response in two parts. In the first part, it argues that the constitutionality of § 3-1-29 “was not sufficiently preserved for appellate review;” in the second part, it argues that the statute “is not unconstitutionally vague.” Our conclusion is that Code of Alabama, 1975, § 3-1-29 is not subject to any challenge made by appellant-defendant on appeal or on the trial as to constitutionality. This makes it unnecessary for us to decide whether the question of its constitutionality was “sufficiently preserved for appellate review.”

II.

By this issue, appellant says that “§ 3-1-29, Code of Alabama, is Unconstitutional As Applied To Edward Williams.” Appel-lee’s response consists of an outright denial of this contention of appellant, by the statement of appellee that “the statute was not unconstitutionally applied to the appellant.” Appellee’s complete argument on the point is as follows:

“The Appellee’s contention on this issue is that the Appellant was prosecuted for his actions after the effective date of the statute and not before. The crime denounced by § 3-1-29 is capable of being committed over an extended period of time. It is a continuing crime as long as the dogs are kept with the intent to fight them. On May 10 or 11, several days after the statute went into effect, a search was executed and at that time, the officers observed the violation of the statute for which the appellant was prosecuted. Under the Appellee’s view of the facts, the Appellant violated the statute from its effective date, May 4, until he was arrested on or about May 11. Under this view of facts, there was no violation of the ex post facto clause of the Constitution. The Appellant had ample opportunity to desist in his conduct after the effective date had he desired to. Since he did not, he was properly convicted of the crime.”

If the only question for us to decide as to this contention were whether a jury issue was presented as to defendant’s guilt of the alleged violation of the then recently enacted statute, we would be inclined to agree with the position taken by appellee as above quoted. However, the transcript shows an additional pertinent question, in that defendant filed within the time required, a motion for a new trial, which was brought to the attention of the trial judge, who ordered it set for a hearing on May 13, 1983, on the same date of the sentencing hearing, in which motion there was a ground that the “verdict of guilty was against the weight and sufficiency of the evidence.” At the commencement of the sentencing hearing, we find the following:

“THE COURT: Mr. Boudreaux [Assistant District Attorney], what do you have to say about this matter?
“MR. BOUDREAUX: Well—
“MR. MASSEY: Your Honor, we would like to make a motion for a new trial—
“THE COURT: I am not going to grant a new trial. If you want to go through a hearing, you can, but I’m not going to grant one.
“MR. MASSEY: I think I have to, Your Honor, because of the Court of Appeals has said that once the matter is brought to the trial court’s attention—
“THE COURT: Well, it is right here and it is denied.”

Our review of the evidence convinces us that the verdict of the jury was contrary to the weight of the evidence as to the crucial issue of whether after midnight of May 3-4, 1982, the defendant was guilty under the indictment charging that he “did unlawfully own, possess, keep or train a dog or dogs with the intent that such dog or dogs be engaged in an exhibition of fighting with another dog,” and that the trial court should have granted defendant’s motion for a new trial. Perhaps if the defendant had not taken the stand and subjected himself to extensive and intensive cross-examination on the subject, we would not so determine. He disclosed in his testimony his detestable misconduct on his part prior to May 4, 1982, and the possibility of a disposition on his part thereafter, but there was little evidence to show that between the effective date of the Act under consideration and the commencement of the prosecution against defendant he had the intent that any of his dogs “be engaged in an exhibition of fighting with another dog.” In his testimony, he did not attempt to discount the fact that prior to May 4, 1982, his conduct was such that it would have constituted a flagrant violation of the law under consideration if the law had been effective during any of such time.

The'judgment of the trial court should be reversed by reason of the denial of defendant’s motion for a new trial. A judgment should not be rendered at this time in favor of defendant, as requested in the brief of appellant’s attorney. The cause should be remanded to the trial court for another trial.

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

REVERSED AND REMANDED.

All the Judges concur, except BOWEN, P.J., who dissents.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Karl Wayne THOMPSON, alias v. STATE of Alabama.
    6 Div. 352.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-214.

      George W. Andrews III, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Karl Wayne Thompson was indicted for attempted murder in violation of § 13A-4-2, Code of Alabama 1975, and robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975. These cases were consolidated for trial and the jury found the appellant guilty of both offenses. Following a habitual felony offender hearing, the trial judge sentenced the appellant to life' imprisonment in the penitentiary without parole.

At approximately 10:00 p.m. on November 8,1982, Jack's Hamburgers in the Nor-wood section of Birmingham closed for the night. Four employees remained and engaged in the process of closing up. Shortly after closing, one of the employees, La Norris Sewell went out the back door to the dumpster. Sewell soon ran to the drive-in window where the two assistant managers, Ronnie Johnson and Ted Skinner, were standing. Sewell told them there were two men outside with a gun. Skinner let Sewell in the door and Johnson went and called the police. While Johnson was on the phone, the appellant put a gun to Johnson’s head and told him to hang up. The appellant then went to the front and instructed Skinner and another employee, Jackie Howell, to help him get the money out of the registers.

The appellant’s accomplice stayed in the back during this time with Sewell and Johnson. The accomplice took the money bag from the safe and then told Sewell, Skinner and Johnson to lie on the floor. The appellant and his accomplice then left Jack’s through the back door. Immediately after the two left, shots were heard outside.

Officers Tommy Tutten and Billy Roberts of the Birmingham Police Department were on patrol in the Norwood area when they received a call to proceed to Jack’s Hamburgers. When they arrived, they saw the appellant with a gun in his hand, standing at the door beside Howell, taking money out of the register. Tutten called for a back-up unit and he proceeded toward the back of the building while Roberts remained in the front. When Tutten got to the back of the building, he looked around the corner and saw the appellant standing there with his gun pointed at him. Tutten then saw the muzzle flash and felt pain in his right eye. Tutten fired several shots at the appellant and the appellant ran.

When Roberts heard the shots, he ran to the back of the building and saw the appellant running. He pursued the appellant and shot at him. About this time, the appellant dropped his gun but continued to run. When the appellant was eventually subdued by Roberts with the aid of Officer Robert Steadham, they noticed that he had received a gunshot wound to his right shoulder. Approximately $400.00 was found in his front pocket.

The bank bag containing approximately $600.00 was found in the area behind Jack’s along with the Lugar .357 which the appellant had dropped.

I

Immediately after the appellant was subdued by the two police officers, he was taken to Cooper Green Hospital for treatment to his injuries. At approximately 12:30, Mike Coppage, a detective for the Birmingham Police Department, arrived at the hospital. Before entering the appellant’s room, he asked a doctor and a nurse if the appellant had been given any medication which would affect his mental capabilities or would render him incapable of giving his voluntary consent to a statement. Both told Coppage that the appellant had not received any medication of this type. When Coppage entered the appellant’s room, he advised him of his Miranda rights. Coppage then told him of the nature of the charges against him and asked him if he wanted to talk about the incident. The appellant stated that he did understand his constitutional rights and would talk to Coppage. The appellant then made a statement which was taped by Coppage. Cop-page testified that no threats, promises, hopes of reward or other inducements were made or offered to the appellant in order to obtain the statement.

The appellant now objects to the admission of this statement on two grounds.

First, Coppage, as well as the appellant’s physician, stated the appellant was in some pain at the time the statement was taken. However, both witnesses stated the appellant could talk and carry on a normal conversation. The appellant was able to answer questions and seemed to understand what was going on.

Secondly, the appellant asserts he felt threatened to give a statement because of the number of the police officers at the hospital. Coppage made it clear that the appellant was not threatened or intimidated, and, in fact, testified that only he, an orderly, and one other officer were in the room when the statement was given by Thompson.

The admissibility of a confession, over the challenge of its voluntariness, is to be determined by the trial judge in the exercise of his sound discretion. Free v. State, 455 So.2d 137 (Ala.Crim.App.1984), cert. denied, [Ms. 83-965, July 27, 1984] (Ala.); Womack v. State, 435 So.2d 754 (Ala.Crim.App.), affirmed, 435 So.2d 776 (Ala.1983).

The contentions which the appellant makes go to the credibility and weight of this confession, not to its admissibility. This court will not overturn a decision by the trial judge on the admissibility of a confession unless it finds an abuse of his discretion. Shewey v. State, 48 Ala.App. 730, 267 So.2d 520 (1972); Bills v. State, 49 Ala.App. 726, 275 So.2d 706 (1973). There is no abuse shown in this record.

The State fully met its burden of proof and established the voluntary nature of the appellant’s confession. Therefore, this confession was properly admitted into evidence.

II

During the trial, a videotape of the events of the night of November 8, 1982, at Jack’s Hamburgers was shown to the jury. The appellant asserts a proper predicate for its admission was not laid and, therefore, this evidence should have been suppressed.

Arty Chiles, the owner of Chiles Alarm Company, testified that he controls and maintains the security system for Jack’s Hamburgers in Norwood, which includes a video monitor system. This system includes four cameras .that take pictures which are recorded on video tape. Chiles checks the system on a semi-monthly basis to make sure it is operating properly, and changes the tape. He personally instructs the employees concerning the operation of the system. Chiles stated that a tape may not be altered, it can only be played or erased. He checked the system on November 9, 1982 and found it was in proper working order.

Ronnie Johnson testified that he checked the video system when he came to work on November 8, 1982 and found it was operating properly. Further, he checked it every hour thereafter until the robbery occurred.

Godfrey Johnson, the area supervisor for Jack’s Hamburgers, was called to the scene immediately after the robbery took place. Shortly after he arrived, he checked the video system and it was working properly. He removed the tape from the video machine and gave it to the evidence technician of the Birmingham Police Department.

Dave Higgins, the evidence technician, testified he received the tape from Johnson on the night of November 8, 1982, and gave it to Officer Mike Coppage the following morning.

Coppage kept the tape in his possession until he brought it to court on the day of the trial.

The appellant makes several allegations as to why the tape should not have been admitted into evidence. The first of those allegations is that one of the four cameras was not operating on the night of November 8, 1982. Three of the cameras were working during this time and these recorded the events of that night. Ted Skinner, who was present when the tape was being made and who viewed the tape, stated the tape truly and accurately depicted the scene at Jack’s and the events of the night of November 8, 1982. Therefore, it was unnecessary for all four cameras to be in operation and it is irrelevant that one of them was not working.

The second allegation the appellant makes concerns the difficulty of the identification of the man portrayed in the tape as the appellant. This fact does not preclude the tape’s admission into evidence. Whether the man portrayed on the tape was, in fact, the appellant, was a question for the jury to determine.

Thirdly, the appellant alleges there is some discrepancy about the time and date in which the tape was recorded. The time and date should have been 10:15 p.m., November 8, 1982, but the date/clock registered 5:45 a.m., April 14, 1982. We do not feel this justifies the tapes exclusion from evidence. There was substantial and sufficient testimony that the tape which, in fact, was recorded during the time of the robbery was the one which was shown to the jury.

Furthermore, it is clear to this court that an unbroken chain of custody was shown and that the tape had not been altered from the time it was recorded until shown in court. Clark v. State, 451 So.2d 368 (Ala.Crim.App.1984).

The admission of the tape into evidence was therefore proper.

III

During the noon recess of the first day of trial, several jurors were waiting for an elevator when the appellant, wearing handcuffs, was escorted from the courtroom. Although it is not clear from the record if any of the jurors saw this event, the appellant claims a mistrial should have been granted.

As the State points out in its brief, this issue has been addressed by this court and decided adversely to the appellant. In Evans v. State, 338 So.2d 1033 at 1037 (Ala.Crim.App.1976), we held:

“... [I]t is not ground for a mistrial that an accused felon appears in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried. Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623 [1949].”

Therefore, the trial judge correctly denied the appellant’s motion for a mistrial on this basis.

IV

The appellant objects to the trial judge’s instruction to the jury on reasonable doubt. He claims it was misleading and that the jury should have been given further instructions.

After a careful review of the court’s instruction to the jury, we find that his instructions were more than adequate. He thoroughly explained to the jury that the defendant is presumed to be innocent at all times and the burden of proof is on the State to prove his guilt beyond a reasonable doubt and that the burden of proof never shifts to the defendant. This court finds no error in the trial court’s instruction to the jury.

V

The appellant challenges the constitutionality of § 13A-5-9, Code of Alabama 1975. As the appellant recognizes in his brief, this issue has been reviewed before this court numerous times and has been decided adversely to the appellant. The Habitual Felony Offender Act does not constitute cruel and unusual punishment, is not violative of due process of law and is not an ex post facto law. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981); Williams v. State, 393 So.2d 492 (Ala.Crim.App.1981); Johnson v. State, 398 So.2d 393 (Ala.Crim.App.1981); Smith v. State, 401 So.2d 251 (Ala.Crim.App.1981), cert. denied, 401 So.2d 257 (Ala.1981); Dozier v. State, 415 So.2d 3 (Ala.Crim.App.1982); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.1981), cert. denied, 401 So.2d 251 (Ala.1981); Seritt v. Alabama, 731 F.2d 728, 735 (11th Cir.1984).

VI

Two of the appellant’s prior felony convictions which were introduced at the habitual offender hearing were entered on the same day and he was given concurrent sentences in those cases. He claims those two convictions should be considered as one conviction.

This issue has been decided in Watson, supra. Even though the appellant received concurrent sentences in these two cases, there are two convictions for purposes of the Habitual Felony Offender Act. The appellant pled guilty to both offenses and he could have received two sentences to run consecutively. See Hopper v. State, 420 So.2d 853 (Ala.Crim.App.1982); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.1981); cert. denied, 401 So.2d 251 (Ala.1981); Seritt v. Alabama, 731 F.2d 728, 735 (11th Cir.1984).

The appellant’s convictions were properly considered as two prior felony convictions.

VII

Lastly, the appellant contends that one of his convictions was improperly considered at the habitual offender hearing. He alleges he was not advised as to the range of punishment for the offense when he pled guilty and, therefore, his plea was uninformed.

As this court stated in Jones v. State, 431 So.2d 1367 (Ala.Crim.App.1983):

“A plea of guilty is a conviction itself. This is not the proper forum for attacking a prior conviction used during a Habitual Offender hearing. The proper forum for attacking the validity of a prior conviction would be by a petition for a writ of error coram nobis. See Mayola v. State, 337 So.2d 105 (Ala.Crim.App.1976).”

The State gave adequate proof of the appellant’s convictions and that they were proper convictions. Each conviction was properly considered by the trial judge during the Habitual Felony Offender hearing.

For the reasons stated above, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Charles E. PRANTL v. STATE.
    7 Div. 230.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-226.

      William R. Justice of Harrison, Conwill, Harrison & Justice, Columbiana, for appellant.
    Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

Charles Prantl was indicted on a charge of burglary in the third degree. At the trial, the jury returned a verdict of guilty of burglary in the third degree, and appellant was sentenced under the Habitual Felony Offenders Act to thirty (30) years’ imprisonment in the penitentiary.

On Saturday afternoon, November 28, 1981, Shelby County Deputy Sheriff Lloyd Anderson received a call to investigate a burglar alarm. He proceeded to Robert Robinson’s cabin on Lay Lake in Shelby County, Alabama. He drove five to ten minutes until he reached Robinson’s private road, which was blocked by a locked gate. Deputy Anderson then had to walk down the road through a wooded area to reach the cabin. Upon reaching the cabin he saw two people standing on a landing outside the door on the back side of the cabin. He also saw another person in a boat tied up to a dock 100 to 150 feet away in front of the cabin.

The man and woman outside the cabin went inside as Deputy Anderson watched from the woods. Anderson then went toward the door, drew his gun, and the woman, Karen Prantl, saw him. He instructed her to come down from the landing, and she “hollered” back into the cabin, “Sam, there’s a damn deputy out here.” The male suspect, Sam Boackle, then came out the door and Anderson arrested both of them. After arresting these two suspects, the third suspect, who had been sitting in the boat, walked up to the area and was arrested too. Appellant was the third suspect.

An examination of the residence revealed that the burglar alarm wires outside the house had been cut and a window facing away from the lake had been broken, with the screen torn away. Inside, several drawers had been opened, and burglar alarm wires had been ripped off the wall. Some kitchen items had been taken into another room. Nothing was missing from the residence. The audible burglar alarm was sounding through an outside speaker throughout this time.

Before appellant walked up from the boat, Boackle and Karen Prantl told Anderson that they had been on the lake in the boat and had heard the burglar alarm going off, so they went to the cabin to see what was going on. They said when they pulled up to the dock they saw two people run into the woods. When appellant approached Anderson afterwards, he gave the same explanation for being present at the cabin.

Appellant alleges that the evidence presented at trial only shows that he was present at or near the scene, and the facts were insufficient to establish appellant as an accomplice, or to support a conviction, except on mere conjecture, suspicion, or guesswork. An examination of the record reveals that the State proved appellant was present at the cabin when Anderson arrived and when Boackle and Karen Prantl entered the cabin, that the audible burglar alarm was sounding outside the cabin, that a window was broken, and that the contents of the cabin had been rummaged through. Additionally, someone had damaged the burglar alarm wires inside and outside the cabin, and all three suspects gave the same explanation for their presence at the scene.

There was no evidence that anyone had taken any item from the cabin, and no evidence that any of the three had touched anything inside or outside the cabin. There was no evidence of flight or attempted flight by any of the parties. In fact, it is clear that appellant voluntarily, without any prompting by Anderson or any call for aid from his alleged co-conspirators, walked up to the cabin and spoke with Anderson. The only possible incriminating evidence that could be tied to any of the parties was Karen Prantl’s statement when she saw Anderson with his gun drawn, “Sam, there’s a damn deputy out here.”

The applicable test for complicity is whether a defendant, with intent to promote or assist in the perpetration of an offense did aid or abet such other person in committing the offense. § 13A-2-23, Ala. Code (1975). The thrust is to place liability on one who has the more positive mental state of promoting or actively assisting in the perpetration of an offense. Besides the mere presence of appellant at the scene, the State must show some evidence that appellant either recruited, helped, or counseled in preparing the crime, or undertook some part in its commission. Pugh v. State, 42 Ala.App. 499, 169 So.2d 27 (1964). Aiding and abetting comprehends all assistance rendered by acts, or words of encouragement, or support or presence, actual or constructive, to render assistance should it become necessary, and no particular acts are necessary. Watkins v. State, 357 So.2d 156 (Ala.Crim.App.1977), cert. denied, 357 So.2d 161 (Ala.1978); White v. State, 42 Ala.App. 249, 160 So.2d 496 (1964); Fuller v. State, 43 Ala.App. 632, 198 So.2d 625 (1966).

In appellee’s brief, the State asserts that “Even though Appellant may not have actually entered the house, or broken the window, he was present to render assistance to his wife during the burglary, if it became necessary.” There was no evidence that Karen Prantl was appellant’s wife or ex-wife, other than an assumption by Deputy Anderson that this was a fact. In fact, in oral arguments before this court, appellee submitted that appellant was not married to Karen Prantl. There was also no evidence concerning any relationship between appellant and Sam Boackle. The State submits that the evidence that appellant was present at the scene along with these two was enough to show he was actively involved in the commission of a burglary. We must disagree.

The State relies on Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982), and Watkins v. State, supra, to support the allegation that no particular acts by a defendant are necessary to show aiding and abetting. An examination of the surrounding circumstances would show a defendant was present to render assistance and, therefore, it would be sufficient to connect that defendant with the criminal act. But each of these cases is distinguishable from this present case. In Sanders, supra, the defendant’s demeanor and conduct, coupled with immediate flight from the robbery, were sufficient to uphold his conviction. In Watkins, there was evidence presented that the defendant actually took the stolen money and fled with his co-defendants when confronted by the police.

Appellant makes a more convincing argument with Thomas v. State, 363 So.2d 1020 (Ala.Crim.App.1978):

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

363 So.2d at 1023. This case is also analogous to Thomas, in that there was no evidence at the time defendant made his motion to exclude which would justify or support an inference that appellant had any knowledge that a crime was going to be committed, or, in this present case, evidence that appellant had knowledge that a crime was ever committed. There was no evidence that appellant could see the broken window from the boat or that he could have seen Boackle and Karen Prantl enter the door. The evidence that was presented at trial creates a suspicion of guilt, but is wholly insufficient to support a conviction of appellant.

Viewing the evidence in the light most favorable to the prosecution, it is apparent that the State proved appellant was present at the scene, but failed to prove that appellant was there to assist anyone present to commit a burglary.

The State argues that the question of whether appellant was an aider or abetter was for the jury to decide. The proper standard for review is whether there existed legal evidence before the jury, at the time the motion to exclude was made, from which the jury could, by fair inference, have found defendant guilty. In applying this standard, this court will not assume the task of determining the probative force and weight of the evidence, but will only determine if legal evidence was presented from which the jury, by fair inference, could have found the defendant guilty beyond a reasonable doubt. Thomas, supra at 1022; Daniels v. State, 343 So.2d 566 (Ala.Crim.App.1977). While aiding and abetting is an issue for the jury to decide, there was not enough evidence presented by the State in this case for the matter to go to the jury. Appellant’s motion to exclude should have been granted. For that reason, this case is reversed.

The double jeopardy clauses of the Fifth Amendment to the Constitution of the United States and of the Alabama Constitution preclude a second trial once a reviewing court has found the evidence presented at trial insufficient to sustain the jury’s verdict of guilty. The prosecution is not afforded another opportunity to supply the evidence which it failed to muster in the first trial. This case must, therefore, be reversed and rendered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Thomas v. State, supra.

REVERSED AND RENDERED.

AH the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Sheldon Lewis KRESLER v. STATE.
    8 Div. 132.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-233.
    Trey Riley, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Sheldon Lewis Kresler pled guilty to two indictments for first degree robbery and was sentenced to twenty years’ imprisonment on each conviction. The trial judge ordered the two sentences to be served concurrently with each other but consecutive to the unexpired portion of an eighteen-year sentence previously given Kres-ler in a Montgomery Circuit Court proceeding. On appeal, Kresler claims that the State failed to abide by its negotiated plea agreement with him, and his case should be remanded for resentencing under the terms of the plea bargain.

The record reveals that, prior to the entry of Kresler’s guilty pleas, he, his attorney, the assistant District Attorney and the trial court discussed a plea bargain which the State characterized, in open court, as follows:

“MR. MORGAN [Assistant District Attorney]: Judge, upon his plea of guilty in these two cases that you have numbered, the State would recommend twenty years in each case. We would further recommend that those sentences run concurrently with each other. It’s my understanding that defense will ask for a pre-sentence investigation. It’s my understanding that sentencing would be set sometime around January the 20th of 1984.
“It is anticipated that Mr. Kresler, pending the sentencing hearing, would talk to investigators of the Huntsville Police Department for the purpose of clearing other cases that might have occurred here in Madison County. In the event that such information should lead to the issuance of arrest warrants against other defendants, or in the event that it should clear other cases at that time, at the sentencing hearing, the State would recommend that these two concurrent twenty-year sentences would run concurrently with the unexpired portion of the eighteen-year sentence that this defendant is now serving from Montgomery County, Alabama.”

After the prosecution stated the agreement, the following occurred:

“THE COURT: All right, Mr. Kresler, you’ve heard what the district attorney has said.
“THE DEFENDANT: Yes, sir.
“THE COURT: Now, is that your understanding of the discussions your attorneys have had with him—
'“THE DEFENDANT: Yes, sir.
“THE COURT: — and also later in my presence?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you have any reservations about that, Mr. Burgess? [Defense Counsel].
“MR. BURGESS: No, sir, I have no reservations. I think there may be one further thing with regard to the information that Mr. Kresler is to provide the Huntsville authorities: that, in the event this information does not lead to arrest warrants or does not lead to the clearing of cases, the State will have no position with regard to whether these two sentences will run concurrent or consecutive with that in Montgomery.
“THE COURT: All right.
“Now, for the record so that it’s clear, let me try to state for the record what I have told your attorneys in chambers. I will abide by that recommendation if you cooperate fully with the district attorney’s office and the law enforcement officials of this county in good faith, and that if you do what they require of you in connection with any warrants that they may issue, which might include trial testimony, I would imagine. That hasn’t been discussed, but that’s a possibility I suppose, is it not?
“MR. BURGESS: It would be a possibility-
“THE COURT: All right, sir.
“Now, if you in good faith do that and you assist law enforcement officials in this county in solving other crimes that are presently pending, then I will abide by the recommendation that has been made to me by the district attorney in connection with each of these cases, meaning that you would be sentenced to twenty years in each case, that time would run concurrently in each of these cases, and that further, that time would run concurrently with the sentence that you have received from the Montgomery County Circuit Court.
“If you should not in good faith cooperate with law enforcement officials, however, I want you to understand that, as far as I’m concerned, you would then be pleading blind, that there would be no recommendation. Mr. Morgan made it clear in chambers that, in that event, he would withdraw his recommendation to the Court, and I have told your attorneys that, in that event, as far as I’m concerned, it would be a blind plea and I would sentence you based on a review of your pre-sentence investigation, any evidence your attorneys might wish to bring to my attention in your behalf, any arguments that they might wish to make bearing on the sentence to be imposed by the Court in mitigation of that sentence.
“I have told them that if any question should arise about whether you have dealt in good faith with law enforcement officials, that on the date this ease is set for sentencing that I would allow them to make an evidentiary showing bearing on that question and that I would deal with you in good faith and with your attorneys in good faith so that you need have no qualms about anybody, especially this Court or in law enforcement in this county, whether it be a deputy sheriff, Huntsville police, or district attorney’s office, dealing with you in good faith. All of us — and I would require that all of us deal with you ethically and in good faith.
“Now, after all that’s been said, do you have any questions about this, Mr. Burgess?
“MR. BURGESS: No, your Honor, I don’t.
“THE COURT: Or do you, Mr. Cohen?
“MR. COHEN: No. I’m satisfied.
“THE COURT: All right.
“But most importantly, Mr. Kresler, do you have any questions?
“THE DEFENDANT: No, sir.”

The sentencing hearing was set for January 27, 1984, at which time the State refused to recommend that Kresler’s term of imprisonment for the robbery convictions run concurrently with his previous sentence. The assistant District Attorney informed the court that Kresler had not lived up to his part of the bargain because he had not cooperated fully with law enforcement officials and had not given information concerning other criminal offenses.

Kresler took the stand and testified to the facts he had given Investigator Howard Turner of the Huntsville Police Department, which included information regarding drugs taken during the robberies of which he stood convicted, the buyers of the drugs, the name and extent of his code-fendant’s involvement in the robbery, and facts regarding other drug dealings in Madison County. The defendant also stated his willingness to discuss these drug transactions with the Huntsville Organized Crime Bureau, and he described the personal risk he had undertaken by telling the police what he knew.

Investigator Howard Turner testified that he visited Kresler in jail on two occasions. The first time the defendant refused to give Turner any information unless defense counsel was present, and the second time the defendant, with counsel present, did give Turner information. Turner testified that the defendant had, in fact, related to him all the information which Kresler described on the stand. Turner characterized the information given him by the defendant as “background information or intelligence type information,” that is, unsubstantiated tips insufficient to issue arrest warrants. Turner concluded that Kresler had given him no new information which, with the exception of the facts regarding the involvement of Kresler’s codefendant in the robbery, could lead to arrest warrants being issued or cases being cleared.

The assistant District Attorney pointed out to the trial judge that although the information on Kresler’s codefendant was “solid” and could lead to an arrest, it did not meet the requirement of the plea bargain that Kresler provide information which would clear “other cases.”

The court continued the sentencing hearing to April 12, 1984, when additional testimony was taken from Captain Ron Curlee of the Madison County Sheriff’s Department and A.B.I. Investigator Thomas Taylor, both of whom stated that, although Kresler had dealt with them “in good faith” and had given them good background information, none of the revelations were substantial enough to result in arresting other criminals or solving other crimes.

Following argument by both parties, the trial judge concluded that, although he had no reason to doubt the defendant's good faith in dealing with law enforcement officials, the information provided by the defendant had nevertheless “not led to the issuance of any arrest warrants against other defendants ... [or] cleared other cases in this county or anywhere else in the state.”

The court also noted that the State abid-ed by its agreement not to take a position on the defendant’s sentences if the information proved not to be as fruitful as expected. The trial judge then pronounced that the defendant’s Madison County sentences be served concurrently with each other but consecutive to the previous Montgomery sentence.

On appeal, the defendant argues that he did all that was reasonably required of him under the terms of the plea bargain, that he fulfilled the condition of good faith cooperation imposed on him by the trial judge, and that he could not be expected to “hand arrests and convictions to the State on a silver platter.” (R. 71)

We start with the recognition that in a plea bargain such as the one before us “the government’s obligation to make a recommendation arises only if defendant performs his obligation.” United States v. Simmons, 537 F.2d 1260, 1261 (4th Cir.1976). The question here, of course, is whether the defendant performed his obligation. Upon review, we affirm the trial court’s finding that he did not.

“Courts have frequently looked to contract law analogies in determining the rights of defendants aggrieved in the plea negotiation process.” United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); Cooper v. United States, 594 F.2d 12, 15-16 (4th Cir.1979); Ex parte Yarber, 437 So.2d 1330, 1334 (Ala.1983). See generally Westen and Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Calif.L. Rev. 471, 530 (1978). Some courts have applied the principle of substantial performance to enforce a plea bargain when the defendant has not literally or completely satisfied his part of the agreement, see, e.g., State v. Brockman, 277 Md. 687, 357 A.2d 376, 384 (1976). Others have employed the maxim that the wording of an agreement should be construed most strongly against the drafter to find that “[a] plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language.” United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978).

In the present case, it is our judgment that neither the principle of substantial performance nor the maxim of construing the agreement most strongly against the State should apply. The record before us indicates that the defendant was well represented by counsel, was fully informed of the consequences of his bargain, and thereby knowingly agreed to be bound by the literal wording of his agreement with the State to recommend concurrent sentencing only “[i]n the event that ... [the defendant’s] information should lead to the issuance of arrest warrants against other defendants, or in the event that it should clear other cases.”

Our conclusion that it was Kresler’s intent to be bound by the literal wording of the agreement is supported by the fact that, prior to the conclusion of the plea bargain, all parties negotiated extensively, and Kresler’s counsel had the foresight to recognize that his client’s cooperation might not lead to the result anticipated by the State. The following comment by defense counsel belies any claim that Kresler thought all he had to do was cooperate fully regardless of the usefulness of his information:

“I think there may be one further thing with regard to the information that Mr. Kresler is to provide the Huntsville authorities: that, in the event this information does not lead to arrest warrants or does not lead to the clearing of cases, the state will have no position with regard to whether these two sentences will run concurrent or consecutive with that in Montgomery.” (Emphasis added.) (R. 11-12)

The State, in fact, made no recommendation regarding sentencing and the trial judge found that defendant had not performed his part of the bargain. The court’s hearing evidence and deciding without a recommendation by the State conforms to the procedure approved in United States v. Simmons, supra:

“[T]he question whether defendant did in fact fail to perform the condition precedent is an issue not to be finally determined unilaterally by the government, but only on the basis of adequate evidence by the Court which, in accordance with Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), judicially approved the bargain....”

537 F.2d at 1261. “[T]he trial court, because it has judicially approved the bargain, has a duty to inquire whether the terms have been followed.” United States v. Swinehart, 614 F.2d 853, 858 (3d Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980). “The [trial] court is in the best position to ascertain the facts, assess the intent of the parties under the plea agreement and, if it was breached, to exercise its discretion and fashion an appropriate remedy.” 614 F.2d at 859.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Bruce CARROLL v. STATE.
    8 Div. 175.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-205.
    Bruce Carroll, pro se.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

In 1982, Bruce Carroll was convicted of robbery in the first degree and sentenced to life without parole. This conviction was affirmed on appeal. Carroll v. State, 440 So.2d 343 (Ala.Cr.App.1983), cert. denied, Carroll v. Alabama, — U.S. -, 104 S.Ct. 1299, 79 L.Ed.2d 698 (1984). In April of 1984, Carroll filed a petition for writ of error coram nobis. The circuit court granted the State’s motion for summary judgment: “After consideration of all evidence submitted, including all affidavits, a review of the transcript of testimony offered at trial and the complete court file, the Court is of the opinion that there is no genuine issue as to any material fact in the case and that the defendant, State of Alabama, is entitled to judgment as a matter of law.” Carroll appeals from this ruling.

A reading of the petition makes it abundantly clear that Carroll is merely attempting to use coram nobis as a mechanism to get a second appeal of his conviction. We will not dignify his allegations by stating them in this opinion. The writ of coram nobis is not a substitute for an appeal nor does it serve the function of an appeal. Summers v. State, 366 So.2d 336, 339-40 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979).

On this appeal, Carroll’s only argument is that his trial counsel was incompetent for the commission and omission of numerous sins and offenses. Although Carroll was represented by different counsel at trial and on appeal, the issue of ineffective assistance of counsel was not raised on direct appeal. Having failed to raise this issue on the original appeal, the remedy of coram nobis is not available. Ex parte Ellison, 410 So.2d 130 (Ala.1982). Here, as in Ellison, “a reading of ... [Carroll’s] petition convinces this Court that he is seeking to use the writ as a delayed appeal of issues which could have been decided at the initial trial or on direct appeal.” 410 So.2d at 132.

Furthermore, we view Carroll’s allegations against his trial counsel as incredible and undeserving of belief. “In considering a petition for writ of error coram nobis, a court may and should determine the ‘reasonableness of the allegations made in the petition and the probability or improbability of their truth.’ ... A court is not bound to accept at face value the allegations of the petition.” Holsclaw v. State, 429 So.2d 1185, 1187 (Ala.Cr.App.1983).

The guidelines for the review of claims of ineffective counsel are established in Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Ex parte Daniel, 459 So.2d 948 (Ala.1984), applying Washington. Appellate courts are reminded that in deciding an actual ineffectiveness claim “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 104 S.Ct. at 2066. “[W]e do not think that counsel should be penalized for the fact that he is not a magician, ... nor for his lack of ‘druidic magical powers to produce an acquittal.’ ” Thompson v. State, 444 So.2d 899, 902 (Ala.Cr.App.1984).

“Coram nobis is treated procedurally as a cross between a civil and a criminal action; it is a new civil action governed by some rules of civil procedure but not by all.” Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 632 (1978) citing State v. Bibby, 47 Ala.App. 240, 242, 252 So.2d 662 (1971). Since a. petition should usually be based on affidavits attached to the petition as coram nobis is, essentially, a motion for a new trial, Duncan v. State, 42 Ala.App. 111, 113, 154 So.2d 302, cert. denied, 275 Ala. 290, 154 So.2d 305, cert. denied, 375 U.S. 860, 84 S.Ct. 126, 11 L.Ed.2d 87 (1963), summary judgment is a proper and suitable procedure.

Our review of Carroll’s trial and the cor-am nobis proceedings convinces us that there is no merit to his petition. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PATTERSON, Judge.

text:
    Ernest D. PITTMAN v. STATE.
    4 Div. 319.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Dec. 11, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-312.
    James H. Weatherford, Jr., Enterprise, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas K. Brantley, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

The appellant, Ernest D. Pittman, was indicted and tried by a jury for the offense of selling marijuana, in violation of the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama (1975). After the jury returned a verdict of guilty, a sentencing hearing was conducted in which Pittman was sentenced to imprisonment for a term of four years.

The State’s evidence tended to show:

Richard Mobley, an undercover agent for the Narcotics Unit of the Alabama Bureau of Investigation, and Greg Amerine, an informant, went to Pittman’s residence at approximately 8:30 p.m. on September 15, 1982. While Amerine and Pittman worked on an air conditioner in the backyard, Mob-ley talked to several people who were also in the yard. During this time, Mobley overheard Amerine and Pittman discussing when the “good” marijuana would be delivered. At 9:00 p.m., Amerine introduced Mobley to Pittman. Mobley asked about purchasing a half pound of marijuana and Pittman responded that he had plenty of marijuana, but that he did not know if he would let him have any because he did not know him. Then, after they proceeded with general conversation, Pittman told Mobley and Amerine to go back to their truck parked in the front driveway and get in it. He further said that he would give Mobley the requested amount of marijuana for two hundred dollars.

While sitting with Amerine in the truck, Mobley observed the following: Pittman went inside his house; all the lights in the house were turned off; someone carrying a flashlight went behind the house; and then the flashlight was cut off. At 9:20 p.m., Pittman came from behind the truck and stuck a flashlight and a .38 Derringer in the passenger’s window. After Pittman told Mobley that he was not going to sell him any marijuana because he did not know him, he asked Mobley questions such as where he lived, how long had he worked in Enterprise, and what was his phone number. Mobley responded and then Pittman demanded the two hundred dollars. After Mobley gave him the money, Pittman told Mobley he would find the marijuana by the first post on the right side of the road in the direction from whence he and Ame-rine had come. Before Mobley and Ame-rine left, however, Pittman stated, “If you like that marijuana, the ships are coming in tomorrow, come back and the stuff I will have tomorrow will be better than that.” At the specified post, which was thirty to fifty yards from Pittman’s residence, Mob-ley picked up two bags. The substance in the bags was later examined by a State toxicologist who determined the substance to be marijuana.

I

Pittman moved to exclude the State’s evidence on the following grounds: (1) the prosecutor failed to prove a prima facie case; and (2) as a matter of law, Pittman was entrapped for, as the State’s own evidence showed, he had no propensity to commit the offense. We find that Pittman’s motion was properly denied. The motion was properly denied on the first ground because ample evidence was presented from which the jury could by fair inference find that Pittman illegally sold marijuana to the undercover A.B.I. agent. See Fields v. State, 424 So.2d 697 (Ala.Cr.App.1982). Likewise, the motion’s second ground is without merit. As we noted in Fields v. State, 424 So.2d at 699, “the fact that the informer acting on behalf of the State or the undercover agent initiated the sale alone does not constitute entrapment as a matter of law.” See also Pitts v. State, 291 Ala. 136, 279 So.2d 119 (1973); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974). Although the State approached Pittman about selling marijuana, the actions leading up to the sale indicate a criminal disposition. See Chillous v. State, 441 So.2d 1055 (Ala.Cr.App.1983); Fields, supra. “Even though the State, to secure evidence, is shown to have tempted the accused, yet if there is proof of his active appetite for forbidden fruit, the issue of causation is one of fact for the jury.” (Note omitted) Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, 721, cert. stricken, 271 Ala. 549, 125 So.2d 725 (1960), cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 392 (1961). Thus, we find that Pittman was not entrapped as a matter of law and the motion to exclude was properly denied.

II

During the prosecution’s closing argument, the following occurred:

“MR. HEAD; But remember the presumption of innocence is only a presumption, and that presumption can be overcome by the State simply meeting its burden of proof, and that burden of proof is to convince you people beyond a reasonable doubt to a moral certainty of this man’s guilt, that he is guilty of the crime of which he has been accused.
“Now, I submit to you that the evidence in this case, uncontroverted, is more than sufficient to bear out the proof of these charges.
“MR. WEATHERFORD: Excuse me, Your Honor. We would like to move for a mistrial. He is saying the evidence is uncontroverted. The testimony is there was no conversation except between the two parties, and he is relying on illegal evidence in this case. There is no way it could be controverted except by infringing on this defendant’s rights.
“THE COURT: Motion to exclude, motion for mistrial and objection denied.”

Pittman contends that the trial court’s denial of his mistrial motion was reversible error because the prosecution impermissi-bly commented upon Pittman’s failure to testify. We disagree and support our holding with the decision pronounced in Ex parte Dobard, 435 So.2d 1351 (Ala.1983), cert. denied, — U.S. -, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984). There, the disputed comments were, as follows:

“There is no evidence before you that could give you any reason why you could think that Jeanette Kennedy shot Officer Sudduth as opposed to Mr. Dobard. The evidence is very clear. As far as I can see, and it is undisputed, that Percy Do-bard shot and killed Officer Wayne Sud-duth.”

In holding that the petitioner’s constitutional rights were not violated, the Alabama Supreme Court reasoned:

“ ‘[WJhere there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure of the defendant to testify, § 6 [Const, of Ala. of 1901] is violated.’ Beecher v. State, 294 Ala. 674, 682, 320 So.2d 727, 734 (1975). Additionally, we noted in Beecher:
“ ‘Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: “There has been no refutation of any of the evidence presented by the State;” or more simply, “The State’s evidence stands uncontradicted,” or other appropriate comment to like effect.’ ” Id.
“We hold that the prosecutor’s comments in question could not have been understood as being a reference to the defendant’s failure to testify, but rather fall squarely within the approved bounds of Beecher."

Ex parte Dobard, 435 So.2d at 1359. See also Jackson v. State, 414 So.2d 1014 (Ala.Cr.App.1982).

Although it is generally held that a comment referring to the State’s evidence as uncontradicted refers to the defendant’s failure to testify, where the defendant himself is the only person who could or would have contradicted the evidence, e.g., Williams v. State, 461 So.2d 852 (Ala.1984), the comment in the case at bar does not fall within the prohibitive rule. For aught that appears in the record, the named informant was present during the entire transaction. Furthermore, the evidence reveals that other persons were present in Pittman’s yard. Thus, there were others who could testify other than Pittman. There was no “virtual identification” of Pittman as the person who did not become a witness. The defendant was not mentioned nor was any reference made to the failure of anyone to give testimony from the witness stand. Williams v. State, supra. Accordingly, the motion for mistrial was properly denied.

Our consideration of the issues raised on appeal convinces us that the judgment of the circuit court is due to be, and it is hereby, affirmed.

AFFIRMED.

All Judges concur.


text:
    Luke WALKER v. STATE.
    4 Div. 341.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-273.
    John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Luke Walker was indicted and convicted for the third degree burglary of Clark’s Grocery near Circle, Alabama. Alabama Code 1975, § 13A-7-7. Sentence was seven years’ imprisonment. On appeal, Walker argues that the affidavit in support of the warrant authorizing the search of his house was insufficient and does not support a finding of probable cause.

The search warrant was issued by the Circuit Court of Jackson County, Florida. The affidavit in support of that warrant states:

“Your affiant is J.J. McCrary, a Deputy Sheriff, Jackson County, Florida and has been for the past twenty (20) years. Within the past fifteen (15) days your affiant has met with a confidential informant, on three (3) different occasions, who wishes his identity to be kept concealed regarding this matter. The confidential informant has given reliable information on more than one (1) occasion, that has proven to be correct. The confidential informant has related to your af-fiant that, in the within described house belonging to and occupied by L.W. Walker and Minnie Lois Lewis, is a kerosun heater and a Sanyo microwave oven that L.W. Walker has told informant on more than one (1) occasion that he (L.W. Walker) took from John Francis’ Beer Joint. L.W. Walker has bragged about taking money from the machines and beer from the Beer Joint. A Burglary occurred the night of January 6, 1983 at John Francis Ward’s Beer Joint, a Kerosun Heater and Sanyo microwave oven was missing from the establishment. The coin machines were burglarized and some beer was missing.”

Walker contends that the affidavit is defective because the informant did not state how he knew that the stolen property was located in Walker’s residence. He argues that the affidavit does not satisfy the basis-of-knowledge prong of the test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The basis-of-knowledge prong requires the disclosure of the underlying circumstances necessary to establish the validity of the informant’s conclusion that the stolen property was where he said it was. Spinelli, 393 U.S. at 413, 89 S.Ct. at 587. The State argues that that prong is satisfied in this case because the informant states that Walker had told him on more than one occasion that Walker had taken the heater and microwave oven from the Beer Joint. However, there is no direct or specific information indicating how the informant knows that the stolen property is inside Walker’s residence.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court reaffirmed the “totality of the circumstances analysis that traditionally has informed probable cause determinations.” 103 S.Ct. at 2332. The Court found that “the ‘two-pronged test’ has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.” 103 S.Ct. at 2330.

Gates advocates a “practical commonsense” approach Jo the issue of probable cause.

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” 103 S.Ct. at 2332.

Here, the informant never stated how he knew that the stolen property was in Walker’s residence. In this sense the affidavit is defective. Yet, even if this defect invalidates the warrant, the stolen property obtained when the search warrant was executed was still properly admitted into evidence. Under the “good-faith exception” to the warrant requirement of the Fourth Amendment, the exclusionary rule should not be applied so as to bar the use in the prosecution’s case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. United States v. Leon, — U.S. -, 104 S.Ct. 3405, 3419-20, 82 L.Ed.2d 677 (1984). “In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ... Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Leon, 104 S.Ct. at 3420.

Here, the officer’s reliance on the circuit judge’s probable cause determination and on the technical sufficiency of the warrant he issued was “objectively reasonable”. 104 S.Ct. at 3421. In Leon, the Court indicated that suppression will remain an appropriate remedy in certain cases. 104 S.Ct. at 3421-22. None of those situations are present here. Officer McCrary made no false or reckless statements in his affidavit. The circuit judge did not “wholly abandon his judicial role.” The affidavit was not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” And, finally, the warrant was not so facially deficient that the executing officers cannot reasonably presume it to be invalid. 104 S.Ct. at 3422.

Here, as in Leon, the officer’s reliance on the judge’s determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ralph Edward BIGHAMES v. STATE.
    6 Div. 299.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 27, 1984.
    Certiorari Denied Jan. 25, 1985 Alabama Supreme Court 84-274.
    James M. Kendrick, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Ralph Edward Bighames was separately indicted for four offenses of first degree robbery, Alabama Code 1975, § 13A-8-41, and two offenses of fifst degree rape. § 13A-6-61. All six indictments were consolidated for trial and Bighames was convicted in each case. He was sentenced to 25 years’ imprisonment for three of the robberies and to 30 years in the fourth. He received a life sentence in each rape case. Three issues are argued on appeal.

I

Bighames argues that the consolidation of the charges for trial was unconstitutional because the rule authorizing that procedure was adopted after the alleged commission of the crimes.

A.R.Crim.P.Temp. 15.3 authorizes the joinder, consolidation, and severance of offenses. This rule became effective on March 1, 1983. The crimes were committed on November 27 and 29, 1981. That rule governs procedure and is a proper and constitutional exercise of the rulemaking power of our state supreme court. Holsemback v. State, 443 So.2d 1371, 1376-77 (Ala.Cr.App.1983). A law or rule relating merely to matters of procedure, and not depriving the accused of any substantial right, is not ex post facto. Terrell v. State, 429 So.2d 656, 658-59 (Ala.Cr.App.1982); Haynes v. State, 424 So.2d 669 (Ala.Cr.App.1982). Matters which are jurisdic tional or substantive in nature are governed by the law applicable at the time of the offense absent a clear expression in the statute or rule to the contrary. Walker v. State, 433 So.2d 469 (Ala.1983); Bracewell v. State, 401 So.2d 123 (Ala.1979). Matters which are procedural in nature are governed by the law applicable on the date of trial. Terrell, 429 So.2d at 659; Robinson v. State, 428 So.2d 148, 152 (Ala.Cr.App.1982), cert. denied, Robinson v. Alabama, — U.S. -, 103 S.Ct. 3122, 77 L.Ed.2d 1374 (1983). Since consolidation of separate indictments for trial is a procedural matter, it is governed by the rules in effect at the time of trial.

II

This Court answered Bighames’ second and third arguments in Bighames v. State, 440 So.2d 1231 (Ala.Cr.App.1983), where we held that the testimony of other rapes and a fingerprint card were properly admitted into evidence. The facts in this case compel the same conclusion of admissibility.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Michael Jerome STEELE, alias v. STATE.
    6 Div. 349.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    Rehearing Denied Nov. 13, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-209.

      Albert C. Hultquist, Homewood, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was tried on consolidated counts charging the rape of Janice Bostic and the robbery of Andrea Gamble. A jury returned a verdict of guilty on both counts, and appellant was sentenced to a term of life imprisonment without parole.

At 6:00 p.m., February 2, 1983, Janice Bostic parked her car in a parking lot in the 1600 block of 2nd Avenue, North, in Birmingham, Alabama. As she walked across the parking lot, a man came up behind her, spoke to her, put his arm around her neck, and placed a knife at her throat. He forced her back into her car, a light colored two-door sedan, and drove out of the parking lot, keeping the knife at her throat. He drove to a dead end street, stopped the car, and took her money and jewelry. She was forced into the back seat and then forced to engage in sexual intercourse.

The assailant then returned to the driver’s seat, and drove the car back to the downtown area. He drove the car to an area near the Trailways bus station, and pulled into a parking lot. As he parked the car, Bostic saw a young lady walking through the parking lot, past the car. The assailant stopped the car and got out without saying anything.

At 6:30 p.m. on February 2, 1983, Andrea Gamble was leaving work at the Birmingham News and returning to her car in the parking lot, when she saw a light colored two-door car, with two people in it, parking directly in front of her car. As she got to her car, a man came up behind her, spoke to her, then grabbed her from behind, placing one arm around her neck, and a knife at her throat. He asked how much money she had and then told her to open her car door. After she opened the door, he pushed her inside and then climbed into the car. He took five $20 bills from her, and she began crying. He told her, “Shut up or else I’m going to hurt you,” as he held the knife at her throat. He snatched a watch off her wrist, looked at it, and then threw it back to her. He asked Gamble if she worked nearby, and, when she replied, he said, “Well, after I get out of this car, you better leave away from around here.” At that point he left the car and walked away.

Janice Bostic had seen a police car drive past the parking lot, and she started her car, followed, and flagged down the patrol car. While she was talking with the police officers, Andrea Gamble drove up and reported her robbery to the officers. Both Gamble and Bostic gave the same description of their assailant.

On February 18, 1983, detective George Grubbs was in an unmarked police vehicle when he observed appellant walking south on 23rd Street. He stopped the car, got out and approached appellant. He grabbed appellant’s arm, displayed his badge, and identified himself. Appellant then “broke and ran.” After a chase, appellant was apprehended and arrested. At a lineup, Andrea Gamble identified appellant. Janice Bostic had identified appellant from a book of photographs on February 17.

Appellant first alleges that he was denied a fair and impartial trial by the consolidation of the two charges and that Rule 15 of the Temporary Alabama Rules of Criminal Procedure is in derogation of his common law right to be tried separately and severally for each offense charged. This court has held that joinder is a procedural matter, not affecting defendant’s substantive rights, and “the rules of joinder, consolidation, and severance ... are within the rulemaking power of our state supreme court.” Holsemback v. State, 443 So.2d 1371, 1376 (Ala.Crim.App.1983), cert. denied, (Ala.1984); Montgomery v. State, 446 So.2d 697 (Ala.Crim.App.1983), cert. denied, (Ala.1984).

While appellant’s allegation raises a novel issue for this court, we are not in a position to examine whether misjoinder of the offenses actually occurred. Contrary to appellant’s claim, an examination of the record does not show that appellant made any motion for severance. A misjoinder claim is waived if defendant fails to make a motion to sever. United States v. DeLeon, 641 F.2d 330, 337 (5th Cir.1981); United States v. Quinones, 516 F.2d 1309, 1312 (1st Cir.1975); Rule 15.3(c), Temp.Ala.R. Crim.P. Without an adverse ruling, this court cannot address the issue raised regarding Rule 15.3, Temporary Alabama Rules of Criminal Procedure. Walker v. State, 416 So.2d 1083 (Ala.Crim.App.1982).

Appellant further alleges that a sentence of life imprisonment under the Habitual Felony Offender Act constitutes cruel and unusual punishment.

Sentencing under this Act does not constitute cruel and unusual punishment. Watson v. State, 392 So.2d 1274 (Ala.Crim.App.), cert. denied, 392 So.2d 1280 (Ala.1980); Seritt v. State, 401 So.2d 248 (Ala.Crim.App.), cert. denied, 401 So.2d 251 (Ala.1981).

Appellant further contends that the Act allows different sentences to be imposed, depending upon the inclination of the State to show prior felony convictions. A District Attorney must show prior felony convictions to the trial court so that an accused will be sentenced in accordance with the act. Miliner v. State, 414 So.2d 133 (Ala.Crim.App.1981). A judge has no discretion concerning the punishment, and must sentence according to the statute. Holley v. State, 397 So.2d 211 (Ala.Crim.App.), cert. denied, 397 So.2d 217 (Ala.1981); Watson, supra. After an examination of the record, this court finds no merit to appellant’s claim that the Act was not properly applied in his case.

This court finds no error injuriously affecting appellant’s substantive rights, and the judgment of the Jefferson Circuit Court is due to be, and it is hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: OVERTON, Justice.

text:
    STATE of Florida, Petitioner, v. Henry Lee RILEY, Respondent. STATE of Florida, Petitioner, v. Bruce Joseph SCHIHL, Respondent.
    Nos. 63662, 64038.
    Supreme Court of Florida.
    Dec. 13, 1984.
    Rehearing Denied Feb. 18, 1985.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Bennett Brummer, Dade County Public Defender and Sheryl Joyce Lowenthal, Sp. Appointed Public Defender, Miami, for Riley.
    Fred Haddad of Sandstrom & Haddad, Fort Lauderdale, for Schihl.
   OVERTON, Justice.

These consolidated cases are before us on petitions to review decisions of the district courts of appeal reported as Riley v. State, 448 So.2d 1029 (Fla. 3d DCA 1983), and State v. Schihl, 447 So.2d 227 (Fla. 4th DCA 1983), in which the following question was certified as being of great public importance:

Whether it is unlawful [under the federal or Florida constitution or Florida statutory law] for the police, in an otherwise lawful manner, to enter private premises which they are authorized to search pursuant to a valid and previously issued search warrant, when the entering officers do not physically have the search warrant in hand upon entry, but do receive the warrant shortly thereafter and duly execute it.

448 So.2d at 1035; 447 So.2d at 227. We restate the question as follows:

Whether evidence obtained pursuant to a search is admissible under the federal and Florida constitutions and Florida statutory law, when the police, without physical possession of a search warrant but in an otherwise lawful manner, enter and secure private premises designated in a warrant, but do not proceed to search the premises until the search warrant is physically available at the premises for execution.

We answer the restated question in the affirmative on the authority of the recent United States Supreme Court decision in Segura v. United States, — U.S. -, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), and for the reasoning expressed by Judge Hubbart in his dissenting opinion in Riley. We emphasize that our holding permits not a search but a securing of the premises for which a search warrant has been issued by a judicial officer prior to entry.

In the Third District Court of Appeal decision in Riley, two police officers were stationed across the hall from a motel room in which drug dealing was suspected to be taking place. They were notified that a warrant had been issued to search the premises for contraband drugs. The officers proceeded to the room and encountered a woman who was in the process of opening the door. The officers displayed their badges and identified themselves as police officers. When the woman attempted to close the door, the officers forced it open, entered the room, and announced to occupant Riley that they were awaiting a search warrant which had been issued and was en route to the scene. No search was conducted until the officer with the warrant arrived, which was approximately twenty minutes later. Riley was arrested after heroin was seized. The trial court denied Riley’s motion to suppress the fruits of the search. Riley thereafter pled nolo contendere to charges of possession with intent to sell a controlled substance and sale or delivery of a controlled substance, and reserved for appeal the denial of the motion to suppress.

On appeal, Riley argued that because the police entered the room without physical possession of a search warrant, the subsequent search and seizure violated the fourth and fourteenth amendments to the United States Constitution, article I, section 12, of the Florida Constitution, and chapter 933 of the Florida Statutes (1981). In the majority opinion adopted after rehearing, the court held that “possession of the search warrant by the officers at the time the search is performed is essential to the validity of the seizure, and mere knowledge that a warrant has been issued fails to satisfy constitutional and statutory guarantees against unreasonable searches.” 448 So.2d at 1034. Riley’s conviction was reversed and he was ordered discharged. Judge Hubbart, in his dissenting opinion, concluded that the challenged police conduct violated no federal or state constitution or statutory provisions and upheld the trial court’s denial of Riley’s motion to suppress.

In the Fourth District Court of Appeal decision in Schihl, an officer conducting surveillance of Schihl’s home was informed that a warrant had been signed by a judicial officer for a search of the premises. Observing that persons were leaving the house, the officer advised them that a search warrant had been issued and told them to wait. Approximately ten minutes later, the warrant was delivered. During the ensuing search, marijuana was discovered. The trial court granted Schihl’s motion to suppress the evidence. Citing Riley, the district court affirmed.

We disagree, finding that the decision of the United States Supreme Court in Segu-ra sets forth the controlling law under these circumstances. We also find the reasoning of Judge Hubbart in his opinion, which was written prior to the Segura decision, to be persuasive.

In Segura, New York Drug Enforcement Task Force officers received information and observed activity indicating that petitioners Segura and Colon probably were trafficking in cocaine from their apartment. The officers received authorization from an assistant United States attorney to arrest the petitioners and to secure the petitioners’ apartment to prevent the destruction of evidence until a search warrant could be issued. After arresting Segura in his apartment building lobby, the officers proceeded to the petitioners’ apartment and knocked on the door. When a woman, later identified as Colon, appeared at the door, the officers entered without requesting or receiving permission. The officers informed Colon and three other persons on the premises that Segura was under arrest and that a search warrant for the apartment was being obtained. The officers then conducted a “limited security check” to ensure that no one else was there who might threaten their safety or destroy evidence. During the security check, they observed but left undisturbed several drug-trafficking accoutrements which were in plain view. Because of an “administrative delay,” the warrant application was not presented to the magistrate until late the following day. The task force officers remained in the apartment for approximately nineteen hours before the warrant was issued and the search was performed. In the search pursuant to the warrant, officers discovered more than three pounds of cocaine and $50,000 in cash, eighteen rounds of ammunition, and records of narcotics transactions.

The lower federal courts held that the initial warrantless entry was not justified by exigent circumstances and that the evidence discovered in plain view during the initial entry and search must be suppressed. The Supreme Court limited its review to the admissibility of the evidence seized under the warrant. The Court concluded that because the officers learned about the evidence for which the search warrant was issued from an “independent source,” that evidence was admissible. 104 S.Ct. at 3391. The majority stated:

[W]e have no reason to question the courts’ holding that that search was illegal. The ensuing interference with petitioners’ possessory interests in their apartment, however, is another matter.... [Ajssuming that there was a seizure of all the contents of the petitioners’ apartment when agents secured the premises from within, that seizure did not violate the Fourth Amendment. Specifically, we hold that where officers, having probable cause, enter premises, and ... for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures.

Id. at 3382-83 (footnote omitted).

In both Riley and Schihl, mere minutes elapsed between the time of the officers’ entry and the arrival of the search warrants. During that time, the premises were “secured” but no search was conducted. Moreover, in contrast to Segura, the officers did not enter the respondents’ premises until they received notification that search warrants had been issued and were en route. Under these facts, we find that the conduct in question clearly falls within the perimeters of the Supreme Court’s holding in Segura. Furthermore, we find that neither section 933.11 nor 933.-08, Florida Statutes (1981), is violated when an officer, without physical possession of a search warrant, enters and secures premises for which a warrant has been issued, as long as the warrant has been issued and is executed before the search is commenced.

For the reasons expressed, we quash the decisions of the district courts of appeal in Riley and Schihl, and direct that these causes be remanded with directions to deny the applicable motions to suppress. We approve in full the reasoning of Judge Hubbart in his dissent in Riley.

It is so ordered.

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

ADKINS, J., dissents.

      . We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution.

      . Judge Hubbart’s dissenting opinion was originally the opinion of the majority. Upon rehearing, the court adopted the dissenting opinion of judge Hendry as the majority opinion. Judge Hubbart dissented. 448 So.2d at 1035.

      . The search and seizure provision of the Florida Constitution must be construed “in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Art. I, § 12, Fla. Const.