text:
    Robert James COOK v. STATE.
    6 Div. 188.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

The appellant, Robert James Cook, was indicted and convicted for rape in the first degree in violation of Alabama Code Section 13A-6-61 (1975). He was sentenced as a habitual offender to life imprisonment without parole. This conviction must be reversed because the trial judge refused to give Cook’s written requested instructions.

I

The victim was the only witness who testified that Cook raped her. In Cook’s defense, the victim’s neighbor testified that both the victim’s general reputation and her general reputation for truth in the community were bad, and that she would not believe the victim under oath.

Cook submitted three written requested charges concerning the effect of the bad character of a witness.

“(1) The Court charges the jury that if the evidence convinces you that the alleged victim is a person of bad character, and unworthy of belief, then you may disregard the alleged victim’s testimony altogether.
“(2) The Court charges the jury that if you find from the evidence in this case that the alleged victim is of a bad character then you may look to this bad character in determining , what credence if any you will give to this alleged victim’s testimony.
“(B) The Court charges the jury that if you believe from the evidence that the alleged victim is a person of bad reputation for truth and veracity in the neighborhood where the alleged victim lives, then, as a matter of law, this fact tends to discredit the testimony of the alleged victim, and you may entirely disregard it, except insofar as it is corroborated by other credible testimony, or by facts and circumstances proved at trial.”

Charge (1) was recently approved in Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979). Charge (2) was held proper in Roundtree v. State, 29 Ala.App. 225, 228, 101 So. 325 (1924). Charge (3) was approved in Cobb v. State, 115 Ala. 18, 22 So. 506 (1897).

Notwithstanding the contention of the State, these charges were not covered in substance by the court’s oral charge. No other requested charge to the same effect was given. The trial judge did instruct the jury on its duty to “segregate out” the testimony of witnesses found to be unworthy of belief and to reject all or any part of the testimony of any witness found to have willfully testified falsely to a material matter. Regardless of how broad an interpretation or how liberally we read the oral instructions of the trial judge, it is impossible to find that the principles of law expressed in the requested charges were substantially and fairly covered in the oral charge of the trial judge. Lambeth v. State, 380 So.2d 923 (Ala.1979). The court’s oral charge made no mention of bad character or reputation.

Baynes v. State, 423 So.2d 307, 311 (Ala.Cr.App.1982), cited by the State for the proposition that Cook’s requested charge number (3) was covered in the court’s oral charge is not persuasive.

II

Cook also requested charges correctly stating the legal principle that, if a conviction depends upon the testimony of a single witness and the jury has a reasonable doubt as to the truthfulness of the testimony of such witness, they cannot convict the defendant. Dunn v. State, 19 Ala.App. 576, 99 So. 154 (1924). See also Alexander v. State, 21 Ala.App. 497, 109 So. 528 (1926). This principle was not covered in the trial judge’s oral charge and under the evidence was due to be given.

III

In response to Cook’s argument that his requested charges should have been given, the State contends that this error was not preserved for review because the objection was made outside the presence of the jury.

Pursuant to Ala.R.App.P. 10(f), Cook has corrected to the record to reflect that “the objections by the State and the Appellant to the Court’s oral charge and the objections by the Appellant as to his refused requested charges were made prior to the jury retiring to consider or to begin deliberations for a verdict.” The fact that the objections were made outside the jury’s presence is in conformity with Ala.R.Crim. P.Temp. 14 which provides that “(opportunity shall be given to make the objection out of the hearing of the jury.” Here, the error was properly preserved for our review. Ex parte Allen, 414 So.2d 993 (Ala.1982).

The judgment of the circuit court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


source: Caselaw Access Project

author: SAM W. TAYLOR, Judge.

license: Public Domain

text:
    Franklin Delano ACOFF v. STATE.
    6 Div. 205.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Tim W. Bice, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer Mullins, Asst. Atty. Gen., for appellee.
   SAM W. TAYLOR, Judge.

Appellant, an inmate of the West Jefferson Correctional Center, petitioned for a writ of habeas corpus. He alleges that he was the subject of a disciplinary proceeding resulting in the loss of “good time” credit without due process of law. It appears from his petition that he was charged with violation of Rule # 6, possession of a knife or any instrument for stabbing, or any lethal weapon. The only other document in the record is the state’s motion to dismiss, which was granted by the circuit court without a hearing.

This court, speaking through Judge Bowen, has stated:

“A petition for habeas corpus is the proper method by which a prisoner who claims to have been deprived of his ‘good time’ credit without due process can challenge the results of his disciplinary hearing.” Fielding v. State, 409 So.2d 964, 965 (Ala.Cr.App.1981).

In Wolf v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974), the Supreme Court in an opinion by Justice White held:

“Two of the procedures that the court held should be extended to parolees facing revocation proceedings are not, but must be, provided to prisoners in the Nebraska Complex if the minimum requirements of procedural due process are to be satisfied. These are advance written notice of the claimed violation and a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken.” (emphasis supplied)

In this case, the record does not reveal any statement of fact by the disciplinary board. There is nothing in the record to enable us to ascertain what evidence was relied on by the board. The state evidently contends that the statement of the appellant in his petition that he had picked up a 3 X 3-foot piece of plywood to “protect himself” from an alleged attack constituted such an admission of “possession of ... any lethal weapon” that nothing else was necessary. We realize that a yard square piece of plywood could be used as a lethal weapon rather than, as appellant contends, a shield.

The Supreme Court of the United States having spelled out the requirements of minimum due process in this area, we are constrained to hold that those few words in the prisoner’s handwritten petition are insufficient by themselves to eliminate the need to comply with the minimum constitutional requirements. We must remand this cause to the trial court for further proceedings.

REVERSED AND REMANDED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Lee Andrew BENNETT v. STATE.
    6 Div. 979.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Robert E. Ison, Hopkinsville, Ky., for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

This is an appeal from a denial of appellant’s pro se petition for writ of error coram nobis.

While appellant’s petition contains many argumentative averments which make it difficult to ascertain any definite grounds for coram nobis relief, a close reading reveals two noteworthy grounds. Both claims are founded under the general claim of ineffective assistance of counsel. The trial court denied appellant’s petition without conducting a hearing thereon.

Initially, appellant contends that he was denied effective assistance of counsel by the failure of his counsel to object to the trial court’s asking appellant in the presence of the struck but unsworn jury whether he would agree to the jury separating during his trial.

The record reflects that immediately after the voir dire examination of the jury venire a recess was taken. The transcript notes the following:

“Whereupon, a short recess was had, after which 12 jurors were selected, it being agreed that the jury would not be sequestered.)” (Emphasis added.)

This court has recently stated the purpose of the writ of error coram nobis:

“The office of the writ of error coram nobis, under Alabama law, is to bring to the attention of the court for correction an error of fact, one not appearing on the face of the record, unknown to the court or party affected, and which, if known in time, would have prevented the judgment challenged and serves as a motion for a new trial on the ground of newly discovered evidence.
“In coram nobis proceedings, when inadequacy of counsel is alleged, the burden is upon petitioner to show by clear and convincing evidence that his legal representation was totally inadequate.” (Citations omitted.) Woodard v. State, 433 So.2d 1198 (Ala.Cr.App.1983).

“In order for a petition for writ of error coram nobis to be ‘meritorious on its face’ it must contain more than mere naked allegations that a constitutional right has been violated.” Stephens v. State, 420 So.2d 826, 828 (Ala.Cr.App.1982).

The following requirements must be met in order for the trial court to hold an evidentiary hearing: (1) the application or petition should make a full disclosure of the specific facts relied upon and not mere conclusions as to the nature and effect of such facts; and (2) the filing of an affidavit sufficiently refuting a record that appears correct. Whitson v. State, 435 So.2d 230 (Ala.Cr.App.1983).

The instant issue is identical to that raised in Whitson . In Whitson, as here, the defendant filed a verified pro se petition for writ of error coram nobis. However, unlike this appellant, Whitson filed an affidavit along with his verified petition, thus fulfilling the requirements enumerated in Stephens.

Consequently, appellant failed to meet the requirements for properly filing his petition. Thus, no error was committed by the trial court in this regard.

Section 12-16-9, Code of Alabama 1975, states:

“(a) If the accused and his counsel and also the prosecuting attorney, in any prosecution for felony, whether capital or noncapital, consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retried or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury-
“(b) It shall be improper for the trial court to ask the accused, counsel for the accused or the prosecuting attorney, in the hearing of the jury, whether he or they will consent to a separation of the jury pending the trial.
“(c) It shall be improper for the accused, counsel for the accused or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial. (Acts 1943, No. 384, p. 358.)”

In Kennedy v. State, 291 Ala. 62, 64, 277 So.2d 878, 879 (1973), our Supreme Court enumerated the purpose and intent of Title 30, § 97(1), Code of Alabama 1940 (recom-plied 1958), the predecessor to § 12-16-9:

“(1) to prevent the defendant from being prejudiced by the jury’s knowledge that he has refused to consent to their separation; and (2) to prevent the jury from showing undue favoritism to a defendant by reason of knowledge that he has consented to their separation.”

We have found no case whose facts are directly on point with the instant case. See Mitchell v. State, 244 Ala. 503, 14 So.2d 132 (1943); Irwin v. State, 397 So.2d 225 (Ala.Cr.App.), cert. denied, 397 So.2d 226 (Ala.1981); Caldwell v. State, 393 So.2d 499 (Ala.Cr.App.1981); Brown v. State, 369 So.2d 56 (Ala.Cr.App.1979); Wright v. State, 57 Ala.App. 401, 328 So.2d 650 (1976).

We are of the opinion that the trial court followed the requirements of § 12-16-9, and did not address the issue of jury sequestration in the jury’s hearing. For aught that appears, it is equally as reasonable for such to have been ascertained in accordance with the law, as in violation of it. A careful search of the record reveals no evidence that the jury heard anything to indicate whether appellant agreed or refused to agree to its separation. Kennedy, supra. It would have been wholly inconsistent for appellant’s counsel to have objected to something to which appellant and he had apparently agreed. Such would have reflected more strongly on counsel’s competency and representation than that reflected by the record now before us. Based upon this additional reason, we find no error in the trial court’s ruling.

Appellant’s last contention centers upon the sentence imposed upon him. He asserts that his prior conviction was invalid, as he was not informed of the minimum and maximum punishment he could receive. Consequently, appellant argues that he was ineffectively represented by counsel’s failure to object on such grounds.

Appellant’s prior conviction occurred in 1962, which was based upon a guilty plea at which appellant was represented by counsel. A review of the portions of the trial transcript attached to appellant’s petition as well as other pertinent portions not made a part of the instant record, but of which we may take judicial notice, reveal the following: (1) prior to the jury venire being qualified by the trial court, the state served appellant with a copy of his prior convictions in compliance with the notice provision of A.R.Crim.P.Temp. 6(b)(3)(ii); (2) after the jury was selected and dismissed for lunch, but prior to reception of any testimony, the state offered for identification purposes only, a certified copy of the judgment entry of appellant’s 1962 conviction of grand larceny and receiving and concealing stolen property; (3) after the jury had returned its verdict, the state requested a sentencing hearing; (4) the trial court, noting the different ranges of punishment under the first degree assault and habitual offender statutes, granted the state’s motion; (5) at appellant’s sentencing hearing, the state offered into evidence the 1962 conviction; (6) appellant challenged its introduction on the ground of remoteness; (7) the trial court did not rule on the state’s proffer; (8) subsequently, the state recommended a sentence of twenty years’ imprisonment, the maximum allowed under the first degree assault statute (see Ala.Code §§ 13A-5-6(a)(2), -6-20 (1975)); (9) the trial court then sentenced appellant to twenty years’ imprisonment.

In the instant cause, appellant wishes to collaterally attack the validity of his 1962 guilty plea conviction in his collateral attack of his 1980 first degree assault conviction. See Bennett v. State, 410 So.2d 138 (Ala.Crim.App.), cert. denied, 410 So.2d 139 (Ala.1981). Other than the certified copy of the judgment entry, no record of the 1962 proceedings is presently before us.

As to appellant’s argument concerning use of the prior conviction for enhanced punishment purposes, we note that the trial court, for reasons undisclosed by the record, did not admit into evidence the prior conviction. Consequently, the trial court did not sentence appellant under the mandatory provisions of the habitual felony offenders statute, Ala.Code § 13A-5-9(a)(2) (1975). Aplin v. State, 421 So.2d 1299 (Ala.Cr.App.1981); Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981).

As stated in Thomas v. State, 435 So.2d 1324 (Ala.1982):

“Ordinarily, trial judges are not required to make findings of fact. Where, however, as in the instant case, various sentence ranges overlap (i.e., the sentences which would apply to a defendant as a habitual offender with and without the youthful offender adjudication overlap the sentence applicable notwithstanding prior felonies), we believe the trial court’s order of sentence should clearly indicate whether the court invoked the Habitual Offender Act in arriving at the sentence imposed. This being done, the basis of the trial court’s sentencing order need not be questioned on appeal, nor need its propriety rest upon speculation.”

We therefore affirm the trial court’s denial of appellant’s petition for writ of error coram nobis. Nevertheless, we remand this cause to the trial court to conduct another sentencing hearing applying the habitual felony offenders statute. See Thomas, supra; Pickett v. State, [Ms. 3 Div. 504, Nov. 23,1982] (Ala.Cr.App.1982); Agee v. State, 429 So.2d 654 (Ala.Cr.App.1982); Coleman v. State, 424 So.2d 685 (Ala.Cr.App.1982); Miller v. State, 423 So.2d 1377 (Ala.Cr.App.1982); Watson, supra. A reasonable time prior to the sentencing hearing, the state should notify appellant of the prior conviction under which it plans to proceed, although for all practical purposes appellant is aware of such. All parties should be present, with counsel, and any evidence offered shall be recorded for this court’s review.

AFFIRMED; REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCING HEARING.

All the Judges concur.

      . We note that appellant’s trial lasted only one day. Thus, the jury did not have to separate and was not given instructions regarding its duties during the evening recess and period of separation as is commonly done.

      . In Whitson, the complained of error occurred as follows;
      “THE COURT: Mac, [defendant’s attorney] do you mind if we let the jury separate tonight?
      “MR. PARSONS: That is fine, Judge.
      “THE COURT: All right, gentlemen, you all be back at one o’clock.”

      .Section 12-16-9, was amended, effective May 4, 1982. See Ala.Code § 12-16-9 (1975) (Supp. 1982).

      . A review of the records of this court reveals no direct appeal being taken from appellant’s 1962 conviction. See V. 53, Appearance Docket, October Term 1962. However, appellant filed a petition for writ of error coram nobis raising the identical issue herein presented. The petition was denied and appellant appealed. This court found Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), inapplicable and, thus, answered the instant question adversely to appellant. See Bennett v. State, 432 So.2d 27 (Ala.Cr.App.1983).

      . The prior conviction appears in the instant record as appellant’s exhibit “A”. It had been previously marked as state’s exhibit 1 on voir dire for identification purposes.

      . In Thomas, supra, the court, quoting with approval from the dissent of now presiding Judge Bowen, noted that upon resentencing, the trial court would not be bound by the previous sentence imposed. Upon return to remand, Thomas’s sentence was reduced by the trial court. Under proper sentencing, an increase in punishment may occur. See Coleman, infra (thirty years’ to life imprisonment); Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982) (life imprisonment to life imprisonment without parole); Peoples v. State, 415 So.2d 1230 (Ala.Cr.App.1982) (twenty years’ to life imprisonment).


author: THOMAS N. YOUNGER, Circuit Judge.

text:
    Robert Earl DOOLEY v. STATE.
    7 Div. 51.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Larry Dobbins, Ashville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   THOMAS N. YOUNGER, Circuit Judge.

The appellant was indicted for robbery in the first degree, in violation of Section 13A-8-41, Code of Alabama 1975. The jury found the appellant guilty as charged, and the trial judge fixed sentence at twenty years’ imprisonment in the penitentiary.

Gerald W. Wilson, the owner of Canoe Creek Discount Drugs, located in St. Clair County near the Etowah County line, testified that a lone gunman, armed with a pistol, entered the store about 12:05 P.M., August 4, 1981, and told him, “I want all your schedule-2 drugs.” (R. 8). The owner complied with the gunman’s instructions, and obtained schedule-2 controlled substances from a box under the counter and placed them in a sack. The gunman grabbed the sack, walked out of the store, and left in a blue LTD Ford automobile. Mr. Wilson testified that he took a pistol and fired at the gunman as he was getting into the car, hitting the left outside rear-view mirror on the driver side. He also testified that the gunman was wearing dark blue jean type pants, a light colored shirt which appeared to be burnt orange in color, and had a pantyhose type stocking over his face. He stated that he had the opportunity to observe the whole body and face of the gunman, and identified the appellant as the same person that committed the robbery.

The appellant was apprehended about three hours after the robbery, in Etowah County, by Investigator Johnny Grant of the Etowah County Sheriff’s Department. He testified that the appellant wore blue jeans with a burnt orange slipover shirt, had blood on his pants, and fit the description of the suspect which he had heard over his radio. On cross examination he testified that, on a prior hearing, he had indicated that the shirt worn by the suspect was between a beige and a burnt orange.

Later in the day, a dark blue Ford automobile was found abandoned about three or four miles from the scene of the robbery. The windshield had been shot and one of the side windows had been damaged. A pair of women’s pantyhose was found lying on the front seat of the automobile. Mr. Wilson testified that the abandoned car was the same one used by the gunman in his flight from the drugstore. Another witness, Lillie Swindle, testified that she observed a white male, wearing a rust colored shirt and blue pants, jump out of the abandoned blue car and get in the back seat of another car nearby. He was carrying a paper sack, and the witness stated that photographs of the appellant, introduced into evidence, looked like the same person she observed getting out of the abandoned automobile.

The appellant testified in his own behalf and denied any participation in, or guilty knowledge concerning, the robbery. He contends that there was insufficient evidence to sustain a conviction, and that the court should have granted a directed verdict in his favor.

On a motion to direct a verdict in favor of an accused, this court is required to consider the evidence in the light most favorable to the prosecution. Bozeman v. State, 401 So.2d 167 (Ala.Cr.App.), cert. denied, 401 So.2d 171 (Ala.1981). Evidence favorable to the prosecution must be taken as true, and legitimate inferences which may be drawn from such evidence must be accorded to the State. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979). The state presented evidence sufficient to make out a prima facie case of robbery. The testimony of the victim, who positively identified the appellant, along with strong circumstantial evidence presented, was sufficient to submit the case to the jury, and if believed by them, sufficient to support a conviction for robbery. Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977); Godbee v. State, 56 Ala.App. 174, 320 So.2d 107 (1975).

Having carefully considered the entire record and finding no error adverse to the substantial rights of the appellant, we are of the opinion that this case is due to be, and the same is hereby, affirmed.

The foregoing opinion was prepared by Hon. THOMAS N. YOUNGER, Circuit Judge, temporarily on duty on the Court pursuant to Section 12-2-30(b)(6), Code of Alabama 1975; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: SHAW, Justice.

text:
    STATE of Florida, Petitioner, v. Wilbur SPEIGHTS, Respondent.
    No. 62519.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for petitioner.
    Carl S. McGinnes, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for respondent.
   SHAW, Justice.

This cause is before the Court on petition to review the decision of the district court of appeal in State v. Speights, 417 So.2d 1168 (Fla. 1st DCA 1982). The district court affirmed a trial court order dismissing an information charging burglary under section 810.02, Florida Statutes (1981), for failure to charge the intent to commit a specific offense as part of the burglary charge. In reaching this decision, the district court certified a question of great public importance:

In a prosecution for burglary under section 810.02, Florida Statutes (1981), is it necessary for the State to allege an intent to commit a specific offense?

Id. at 1169. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

The certified question is identical to that which we have since answered in the negative. State v. Waters, 436 So.2d 66 (Fla.1983). The information, however, must allege the essential statutory element of intent to commit an offense. Id. This essential element was properly alleged in the present case.

The decision of the district court of appeal is quashed and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Thomas O’GRADY, Respondent.
    No. 63236.
    Supreme Court of Florida.
    Sept. 15, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Patricia S. Etkin, Bar Counsel, Miami, for complainant.
    Edward L. Magill of Magill, Reid, Kuvin & Lewis, Miami, for respondent.
   PER CURIAM.

Thomas O’Grady has filed a conditional plea of guilty and agreement for entry of a consent judgment. In doing so he admits violating Disciplinary Rules 1-102(A)(6), 7-106(C)(6), and 8-102(B) of the Code of Professional Responsibility. The Florida Bar and this Court accept his plea.

The actions of respondent were deplorable. He is hereby publicly reprimanded for his conduct. He shall, in addition, pay costs incurred by The Florida Bar in the amount of $492.16 within thirty days of the filing of this opinion.

It is so ordered.

ADKINS, Acting Chief Justice, and BOYD, McDonald, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM. ALDERMAN, Chief Justice,

text:
    James Curtis McCRAE, Appellant, v. STATE of Florida, Appellee.
    No. 63797.
    Supreme Court of Florida.
    Sept. 15, 1983.

      Robert H. Dillinger of Akerson, Swisher, Dillinger & Brett, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appel-lee.
   PER CURIAM.

This cause is before the Court on appeal from an order denying James McCrae’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant is a state prisoner under sentence of death. On June 13, 1983, we issued an order staying execution of sentence.

Appellant was convicted of first-degree murder and sentenced to death. He appealed, and during the pendency of his appeal this Court relinquished jurisdiction to allow him to file a motion to vacate judgment and sentence in the trial court under Rule 3.850. The trial court denied relief. Appellate jurisdiction of the judgment and sentence then resumed in this Court and McCrae also invoked appellate review of the denial of post-conviction relief. We considered both appeals and issued an opinion affirming both the initial judgment and sentence and the order denying the motion to vacate. McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). McCrae later filed a petition for habeas corpus with this Court and we denied relief. McCrae v. Wainwright, 422 So.2d 824 (Fla.1982).

The motion to vacate or set aside judgment and sentence before us now on appeal raised numerous grounds. The court in which appellant was convicted and sentenced denied the motion in a brief order stating as grounds that “a prior motion pursuant to this Rule was argued and denied by the sentencing court” and that the court was “not required to entertain a successive motion for similar relief on behalf of the same prisoner.” It is unclear to us whether the basis of the court’s summary denial was that the issues raised in appellant’s motion had been adjudicated adversely to him in the previous post-conviction proceeding or simply that he had previously filed an unsuccessful motion for post-conviction relief.

Florida Rule of Criminal Procedure 3.850 provides that a prisoner under sentence of a Florida court who claims that his conviction or sentence was unconstitutionally imposed, or was imposed by a court without jurisdiction, or that the sentence exceeds legal limits, or that his plea was involuntary, or that “the judgment or sentence is otherwise subject to collateral attack,” may file a motion in the court in which the judgment was entered or the sentence was imposed, seeking “to vacate, set aside or correct the judgment or sentence.” The second paragraph of Rule 3.850 begins by providing: “A motion for such relief may be made at any time.” A subsequent paragraph of the Rule provides in part: “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”

The provision stating that successive motions for “similar relief” need not be entertained seems to suggest that after a first Rule 3.850 motion has been denied, subsequent motions to vacate may be summarily dismissed. This inference, however, has been rejected by judicial interpretation based upon the intended purposes and scope of the post-conviction remedy under Rule 3.850.

The purpose of the Rule 3.850 motion is to provide a means of inquiry into the alleged constitutional infirmity of a judgment or sentence, not to review ordinary trial errors cognizable by means of a direct appeal. Ratliff v. State, 256 So.2d 262 (Fla. 1st DCA 1972). The motion procedure is neither a second appeal nor a substitute for appeal. Matters which were raised on appeal and decided adversely to the mov-ant are not cognizable by motion under Rule 3.850. E.g., Christopher v. State, 416 So.2d 450 (Fla.1982); Dismuke v. State, 388 So.2d 1324 (Fla. 5th DCA 1980); Faulkner v. State, 226 So.2d 441 (Fla. 2d DCA 1969). Furthermore, any matters which could have been presented on appeal are similarly held to be foreclosed from consideration by motion under the Rule. E.g., Demps v. State, 416 So.2d 808 (Fla.1982); State v. Jackson, 414 So.2d 281 (Fla. 4th DCA 1982); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Tyner v. State, 363 So.2d 1165 (Fla. 1st DCA 1978); Koedatich v. State, 287 So.2d 738 (Fla. 3d DCA 1974); Yanks v. State, 273 So.2d 401 (Fla. 3d DCA 1973), cert. denied, 277 So.2d 288 (Fla.1973); McGriff v. State, 259 So.2d 508 (Fla. 3d DCA 1972), cert. denied, 263 So.2d 829 (Fla.1972); Austin v. State, 160 So.2d 730 (Fla. 2d DCA 1964). Therefore, a Rule 3.850 motion based upon grounds which either were or could have been raised as issues on appeal may be summarily denied. E.g., Foster v. State, 400 So.2d 1 (Fla.1981); Edwards v. State, 364 So.2d 119 (Fla. 1st DCA 1978); Jenkins v. State, 267 So.2d 886 (Fla. 2d DCA 1972).

In addition to issues that were raised on appeal and those which could have been raised, which are not proper grounds, a motion under the Rule may also be summarily denied when it is based on grounds that have been raised in prior post-conviction motions under the Rule and have been decided adversely to the movant on their merits. Pitts v. Turner, 362 So.2d 134 (Fla. 4th DCA 1978); Neal v. State, 349 So.2d 844 (Fla. 2d DCA 1977); Mitchell v. State, 203 So.2d 676 (Fla. 1st DCA 1967), cert. denied, 210 So.2d 224 (Fla.), cert. denied, 392 U.S. 913, 88 S.Ct. 2073, 20 L.Ed.2d 1371 (1968); Coleman v. State, 183 So.2d 714 (Fla. 1st DCA 1966). A “second or successive motion for similar relief,” as used in Rule 3.850 has thus been interpreted to mean a motion stating substantially the same grounds as a previous motion attacking the same conviction or sentence under the Rule. Furthermore, this restriction against successive motions on the same grounds is applied only when the grounds raised were previously adjudicated on their merits, and not where the previous motion was summarily denied or dismissed for legal insufficiency. See, e.g., Flores v. Wainwright, 240 So.2d 816 (Fla. 2d DCA 1970); Reynolds v. State, 224 So.2d 769 (Fla. 2d DCA 1969), cert. discharged, 238 So.2d 598 (Fla.1970); Taylor v. State, 181 So.2d 589 (Fla. 4th DCA 1965).

On the other hand, a second or successive motion by the same prisoner attacking the same judgment or sentence but stating substantially different legal grounds is permitted under the Rule and should not be summarily dismissed solely on the basis that the prisoner has previously filed another Rule 3.850 motion. See Palmer v. State, 273 So.2d 135 (Fla. 3d DCA 1973); Roberts v. State, 250 So.2d 918 (Fla. 2d DCA 1971); Piehl v. State, 173 So.2d 723 (Fla. 1st DCA 1965), quashed on other grounds, 184 So.2d 417 (Fla.1966); Archer v. State, 166 So.2d 163 (Fla. 2d DCA 1964).

As the foregoing discussion demonstrates, if the summary denial in the instant case was based upon a determination that the issues raised by the motion either were or could have been presented by direct appeal, or that they were argued in the previous Rule 8.850 proceeding and decided on their merits, then the order denying relief was proper. If, on the other hand, the denial of the motion was based on the supposition that the mere filing of a previous motion for post-conviction relief precluded any consideration of a second or successive motion, then the court’s order was error. Since the precise basis of the order denying the motion is not clear to us, it is necessary to remand the case to the circuit court for a clarifying statement.

This cause is remanded to the lower court for a more definite statement of the reasons for its order or for further proceedings consistent with this opinion.

It is so ordered.

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

ALDERMAN, C.J., concurs in result only with an opinion.

ADKINS and EHRLICH, JJ., dissent.

ALDERMAN, Chief Justice,

concurring in result only.

Florida Rule of Criminal Procedure 3.850 provides in part:

A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released upon the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack, may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.
A motion for such relief may be made at any time.
The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

A defendant may not use this vehicle to seek review of matters which were or could have been raised on direct appeal. He may not raise anew in successive motions for 3.850 relief matters which have been raised and resolved against him on the merits in prior postconviction proceedings. He may, however, file successive motions raising substantially different legal grounds; and according to rule 3.850, he may file for such relief at any time.

Because of the present status of the rule and the decisional authority construing the rule, I concur in the result of the majority opinion.

I believe, however, that we should impose a time limitation for filing 3.850 motions and should narrow the scope of grounds which may be alleged in successive petitions for relief. In order to give due weight to the finality and the presumption of legality of a final judgment and to restore the public’s confidence in our criminal system of justice, we should amend rule 3.850 by adding a one-year statute of limitations on the filing of these motions. In my view, one year from the time the judgment becomes final, that is after the appellate process is concluded, is a sufficient and reasonable limitation period to place on the filing of these motions. This would include certiora-ri review to the United States Supreme Court if it is sought. There is no reason why a defendant, through the exercise of due diligence, cannot determine his basis for collateral attack during that period of time.

Moreover, I do not believe that successive motions to vacate should be allowed where the grounds alleged in the successive petition were known or could have been known to the defendant at the time he filed his initial motion for relief. A defendant should not be allowed to file one 3.850 motion after another to prolong his inevitable execution, each time reserving one or more grounds for relief that could have been alleged in his initial motion. The movant should be required to plead in his motion that he did not know and could not have known the grounds for his present motion for relief.

In the four-year cycle of reviewing court rules, the Florida Criminal Procedure Rules Committee is now in the process of considering recommendations for rule changes. I request the committee to consider these matters relating to rule 3.850 motions.

If the issues raised by McCrae in his present motion to vacate either were or could have been raised on direct appeal, or were raised, or could have been raised in his previous rule 3.850 motion, then the trial court properly denied his motion for relief. I would remand to the trial court to clarify the basis for his denial of this successive motion. I would give McCrae the opportunity to plead, if he can, that he was not nor could not have been aware of the present grounds for relief at the time he filed his initial petition for 3.850 relief.


author: EHRLICH, Judge.

text:
    Ronald DEAN, Petitioner, v. PUBLIX SUPERMARKETS, INC., etc., Respondent.
    No. 62437.
    Supreme Court of Florida.
    Aug. 25, 1983.
    Rehearing Denied Oct. 20, 1983.
    Robert D. Klausner of Pelzner, Schwe-dock, Finkelstein & Klausner, Miami, for petitioner.
    John-Edward Alley and Robert D. Hall, Jr. of Alley & Alley, Tampa, for respondent.
    Edward S. Jaffry and William L. Gros-senbacher of Horne, Rhodes, Jaffry & Horne, Tallahassee, for Fla. Ass’n of Plumbing, Heating and Cooling Contractors, Inc.; A. Thomas Mihok of Dempsey & Slaughter, Orlando, for Central Fla. Chapter, Associated Builders and Contractors, Inc.; Karen L. Goldsmith and Gary L. Summers of Dempsey & Slaughter, Orlando, for The Fla. Health Care Ass’n and The Florida Health Care Self-Insurers’ Fund; Susan Minor, Asst. General Counsel, Coral Gables, for The Wackenhut Corp.; and Joseph Z. Fleming of Fleming & Huck, Miami, for Wynne Enterprises, Inc., of Hialeah, et al., amici curiae.
   EHRLICH, Judge.

We accepted jurisdiction of this cause pursuant to article V, section 3(b)(3) of the Florida Constitution based on direct and express conflict between the opinion of the Third District Court of Appeal, Publix Supermarkets, Inc. v. Dean, 416 So.2d 12 (Fla. 3d DCA 1982), and that of the First District Court of Appeal in Piezo Technology and Professional Administrators, Inc. v. Smith, 413 So.2d 121 (Fla. 1st DCA 1982), approved, 427 So.2d 182 (Fla.1983). Because our holding approving the First District Court of Appeal controls this cause, we quash the decision of the Third District and remand for further proceedings consistent with our opinion in Piezo Technology.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and SHAW, JJ., concur.


author: McDonald, justice. ALDERMAN, Chief Justice,

text:
    Ronald Gene PALMER, Petitioner, v. STATE of Florida, Respondent.
    No. 62,449.
    Supreme Court of Florida.
    Sept. 1, 1983.
    Rehearing Denied Oct. 19, 1983.

      Richard L. Jornadby, Public Defender and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen. and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for respondent.
   McDonald, justice.

This case is before us to review a decision of the Fourth District Court of Appeal, Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982). We quash that portion of the district court’s opinion allowing the imposition of cumulative three-year mandatory mínimums for each of thirteen consecutive sentences arising from the same criminal episode.

On July 28, 1979 Ronald Gene Palmer walked into an Oakland Park funeral parlor during a wake, held a revolver to the head of the assistant funeral director, and ordered him to inform the twenty-five to thirty mourners present that a robbery was taking place. Brandishing the pistol, Palmer ordered the mourners to throw their money and valuables on the floor and threatened to kill them if they failed to comply. He also forced the assistant director to open the funeral home cash box. After fifteen to twenty minutes, and having stuffed the mourners’ cash and wallets into his pockets and waistband, Palmer left the funeral home. He was apprehended almost immediately by police responding to a call from mourners who had managed to sneak out a side door of the funeral home without being noticed. Police returned Palmer to the funeral home where those he had just victimized identified him as the robber.

After trial, during which defense counsel’s argument centered on Palmer’s state of mind at the time he committed the acts charged, a Broward County jury convicted Palmer on all counts of a sixteen-count information. The trial court sentenced Palmer to seventy-five years’ imprisonment on each of thirteen robbery counts, the sentences to run consecutively for a total of 975 years. The court also imposed the mandatory minimum of three years on each robbery count for a total of thirty-nine years. On counts of aggravated assault and carrying a concealed firearm Palmer received sentences of five years for each, consecutive to each other and to the robbery counts. The trial court retained jurisdiction on all fifteen sentences for a total of 328⅛ years of the total 985-year sentence. On appeal the fourth district affirmed all aspects of the convictions and sentences, except that it reversed the retention of jurisdiction over one-third of the sentence for carrying a concealed weapon.

We are primarily concerned with the issue of whether the trial court erred in imposing three-year mandatory mínimums on each of thirteen consecutive sentences, for a total of thirty-nine years without eligibility for parole. We conclude that this portion of the sentences imposed constitutes reversible error.

Subsection 775.087(2), Florida Statutes (1981), provides that any person who had in his possession a firearm during the commission of certain specified felonies, including robbery, shall be sentenced to a minimum term of imprisonment of three calendar years. Subsection 775.021(4), Florida Statutes (1981), requires separate sentences for separate offenses arising from a single criminal transaction or episode and allows the trial court to order the sentences served concurrently or consecutively. The state contends that these two sections, when read in pari materia, allow the “stacking” of consecutive mandatory three-year minimum sentences. We disagree.

We rely in part upon a fundamental rule of statutory construction, i.e., that criminal statutes shall be construed strictly in favor of the person against whom a penalty is to be imposed. Ferguson v. State, 377 So.2d 709 (Fla.1979). We have held that “ ‘nothing that is not clearly and intelligently described in [a penal statute’s] very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms.’ ” State v. Wershow, 343 So.2d 605, 608 (Fla.1977), quoting Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). This rule of construction has, in fact, been codified as part of the very statute on which the state relies. Nowhere in the language of section 775.087 do we find express authority by which a trial court may deny, under subsection 775.087(2), a defendant eligibility for parole for a period greater than three calendar years.

The Florida Constitution delegates exclusively to the executive branch the power to grant paroles or conditional releases to persons under sentences for crime. Art. IY, § 8(c), Fla. Const. It is true that we have previously rejected attacks on the constitutionality of statutes requiring that those persons convicted of certain offenses serve X number of years without eligibility for a parole. In Owens v. State, 316 So.2d 537 (Fla.1975), we held that the statute mandating a minimum sentence of twenty-five years without eligibility for parole, upon conviction of a capital felony, did not usurp the power of the Parole and Probation Commission, nor did it violate Florida’s constitutional scheme for separation of powers. Id. at 538. The statute under consideration sub judice was upheld against a similar constitutional attack in Scott v. State, 369 So.2d 330 (Fla.1979). In Owens and Scott, however, the sentences imposed, with no possibility of parole, were for exactly the term of years expressly authorized by statute. Palmer, on the other hand, was sentenced to thirty-nine years, without eligibility for parole, based on a statute expressly authorizing denial of eligibility for parole for only three years.

As we noted in Owens, the legislature reserved to itself, at the time it created the Parole and Probation Commission, the power to proscribe consideration for parole for those convicted of certain statutorily designed classes of crime. In the present case the state contends, in essence, that subsections 775.021(4) and 775.087(2), when read in pari materia, amount to a delegation of the parole authority to the trial court, whereby, in the exercise of its discretion, it may deny parole for three years multiplied by the number of separate offenses of which a defendant is convicted. We do not believe the legislature intended such a result as the sentence under review here when it added subsection (4) to section 775.021. In any event we are unwilling to construe these two statutes in such a way as to allow the imposition of any sentence without eligibility for parole greater than three calendar years. By this holding, we do not prohibit the imposition of multiple concurrent three-year minimum mandatory sentences upon conviction of separate offenses included under subsection 775.087(2), nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places. See Vann v. State, 366 So.2d 1241 (Fla. 3d DCA 1979).

We find no other reversible error. The cause is remanded to the district court with directions to remand to the trial court to correct the sentences so that the thirteen mandatory minimum sentences will be served concurrently.

It is so ordered.

ADKINS, OVERTON and SHAW, JJ., concur.

ALDERMAN, C.J., dissents with an opinion, in which BOYD and EHRLICH, JJ., concur.

ALDERMAN, Chief Justice,

dissenting.

The trial court, in my view, properly imposed three-year mandatory mínimums on each of the thirteen robbery counts for which Palmer was convicted, with the mandatory mínimums to run consecutively. Since separate sentences for the separate robbery offenses are proper, I find no basis for barring these separate mandatory minimums.

Reading section 775.087(2), Florida Statutes (1981), providing that a person who had a firearm in his possession during the commission of a robbery shall be sentenced to a minimum of three years imprisonment, in conjunction with section 775.021(4), Florida Statutes (1981), requiring separate sentences for separate criminal offenses with the trial judge making the determination as to whether these sentences are to be served concurrently or consecutively, I can only conclude that the legislature intended separate mandatory minimum sentences which could run consecutively for separate offenses. Had Palmer committed thirteen robberies at thirteen separate houses, there would be no question that he could receive thirteen separate, consecutive, three-year mandatory minimum sentences. He should not be entitled to less than this merely because he committed the thirteen separate robberies in the same criminal episode. Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be “cheaper by the dozen.”

The constitution does not proscribe consecutive, three-year mandatory mínimums in the present case. Section 775.021(4) requires separate sentences and gives the trial court the discretion to determine whether they are to be served consecutively. I would approve the decision of the district court affirming these sentences.

BOYD and EHRLICH, JJ., concur.

      . The current statute reads as follows:
      (4) Whoever, in the course of one criminal transaction or episode, commits an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively.

      . § 775.021(1), Fla.Stat. (1981).


author: PER CURIAM. McDONALD, Justice,

text:
    Ronald JACKSON, Appellant, v. STATE of Florida, Appellee. Ronald JACKSON, Petitioner, v. STATE of Florida, Respondent.
    Nos. 64214, 64202.
    Supreme Court of Florida.
    Sept. 13, 1983.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb and Elliot H. Scherker, Asst. Public Defenders, Eleventh Judicial Circuit, Miami, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., Miami, for appel-lee/respondent.
   PER CURIAM.

Ronald Jackson appeals from the trial court’s denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, moves for a stay of execution, and petitions for a writ of error coram nobis.

After being convicted of first-degree murder, Jackson received the death sentence. This Court affirmed both his conviction and sentence. Jackson v. State, 366 So.2d 752 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). Jackson later filed a habeas corpus petition, alleging ineffective assistance of appellate counsel, which we denied. Jackson v. Wainwright, 421 So.2d 1385 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 3572, 77 L.Ed.2d 1412 (1983).

On August 24, 1983 the governor signed Jackson’s death warrant, effective from September 16 through September 23, and the Department of Corrections scheduled his execution for September 20, 1983. The trial court denied his motion for post-conviction relief on September 1,1983, prompting this appeal.

In his 3.850 motion Jackson set out the following issues: 1) denial of the opportunity to present, and have considered, all relevant mitigating evidence, i.e., nonstatutory as well as statutory; 2) requiring a majority vote for a recommendation of life imprisonment denied him such a recommendation; and 3) the instructions in effect at the time of Jackson’s trial on lesser included offenses and aggravating factors rendered his death sentence arbitrary, capricious, unreliable, and disproportionate. Jackson now claims that his motion presented prima facie grounds for relief under rule 3.850 and that the trial court erred by not granting an evidentiary hearing on the claims set out in the motion.

The motion and record conclusively show that Jackson is not entitled to the relief sought. The trial court, therefore, did not err in not granting an evidentiary hearing. Muhammad v. State, 426 So.2d 533 (Fla.1982).

Jackson contends that his trial counsel believed he could not present evidence of nonstatutory mitigating circumstances and that this belief patently operated to exclude relevant mitigating evidence. Citing Proffitt v. Wainwright, 685 F.2d 1227, 1248 (11th Cir.1982), which concluded that such a belief by a defense attorney was entirely reasonable, Jackson claims tht the treatment of mitigating evidence has evolved into a change in the law which should give him relief under Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). We disagree both with Jackson’s contention and with the federal court’s conclusion.

The sentencing instructions tracked the language of the statute in effect at the time of Jackson’s trial. We have recently held that the statute and such instructions comported with due process and the eighth amendment. Straight v. Wainwright, 422 So.2d 827 (Fla.1982), cert. denied sub nom. McCrae v. Florida,-U.S.-, 103 S.Ct. 2112, 77 L.Ed.2d 315 (1983). We find no merit to Jackson’s claim that the state of the law prevented his trial counsel from presenting nonstatutory evidence at his sentencing hearing. Hitchcock v. State, 432 So.2d 42 (Fla.1983); Armstrong v. State, 429 So.2d 287 (Fla.1982).

Citing Harich v. State, 437 So.2d 1082 (Fla.1983), Jackson claims error in the instruction given his jury as to the vote needed to make its recommendation. In the present case, as was the case in Harich, Jackson failed to object to the jury instruction at trial as required by Florida Rule of Criminal Procedure 3.390 in order to preserve this point for appeal. Nor did he seek in any way to have the presently challenged jury instruction modified. Moreover, as in Harich, we find no prejudice in the giving of this instruction. Additionally, we do not find that Harich is a change in the law as to merit relief under Witt v. State.

Jackson concedes that this Court has recently ruled adversely to his third claim. Aldridge v. Wainwright, 433 So.2d 988 (Fla.1983); Riley v. State, 433 So.2d 976 (Fla.1983); Hitchcock v. State. We decline this opportunity to reconsider these issues.

We affirm the trial court’s denial of the 3.850 motion and deny the stay of execution. The petition for writ of error cor-am nobis presents no newly discovered evidence which would have precluded conclusively the death sentence and is, therefore, denied. Scott v. State, 433 So.2d 974 (Fla.1983); Hallman v. State, 371 So.2d 482 (Fla.1979). No motion for rehearing will be allowed.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.

McDONALD, J., concurs in part and dissents in part with an opinion.

McDONALD, Justice,

dissenting in part, concurring in part.

I conclude from a review of the record in this case that the trial judge failed to consider nonstatutory mitigating circumstances when he sentenced Jackson to death. It also reveals that none were presented except those which could have been drawn inferentially from the medical testimony. Jackson seeks to show that his counsel did not introduce existing nonstatutory mitigating evidence because he felt that the law precluded him from doing so. He avers that such evidence could have made a difference in his sentence. I recognize that this claim is similar to that made in Armstrong v. State, 429 So.2d 287 (Fla.1983), in which I dissented. Nevertheless, I feel compelled to reiterate my view in this type situation.

This case was tried before Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), was decided. Until that pronouncement the law on the relevance of nonstatutory mitigating evidence was uncertain. See Proffitt v. Wainwright, 685 F.2d 1227, 1248 (11th Cir.1982).

Death warrants are now being signed on death sentences imposed both before and after Lockett. In pondering the question of whether Lockett is retroactive or not, it seems fundamentally unfair to me for one person to go to the gallows when nonstatu-tory mitigating circumstances were not considered, while others may not be going because those circumstances were considered or while others are going only after such consideration. This appears to me to be unconstitutional disproportionate treatment.

Lockett was a significant change in the law and meets the test for affording relief as enunciated in Witt v. State, 387 So.2d 922 (Fla.1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). I would reverse the denial of the 3.850 hearing without an evidentiary hearing and require consideration of what evidence was reasonably available and the reason for its nonproduction. If Jackson were unfairly deprived of consideration of such evidence, he should have a new sentencing hearing.

As to the other issues, I concur on the denial of relief.

       Of course, if the nonpresentation of such evidence were trial strategy or if in fact none were available, there is no infirmity,


text:
    THE FLORIDA BAR, Complainant, v. William G. LOGAN, Respondent.
    No. 63701.
    Supreme Court of Florida.
    Sept. 15, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Richard B. Liss, Bar Counsel, Ft. Lauderdale, and Robert D. Rosenbloom, Co-Bar Counsel, Miami, for complainant.
    Harry M. Solomon of the Law Offices of Joel Hirschhorn, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Respondent’s Petition for Leave to Resign Permanently Pending Disciplinary Proceedings pursuant to article XI, Rule 11.08 of the Integration Rule of The Florida Bar.

The Florida Bar having now filed its response supporting the Petition for Leave to Resign and the Court having reviewed the same and determined that the requirements of Rule 11.08(3) are fully satisfied, the Petition for Leave to Resign Permanently Pending Disciplinary Proceedings is hereby approved.

It is so ordered.

BOYD, Acting Chief Justice, and OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


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

text:
    Donald Ray ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-273.
    District Court of Appeal of Florida, Fifth District.
    March 9, 1983.
    Rehearing Denied April 7, 1983.
    James B. Gibson, Public Défender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, and Norman R. Wolfinger, Asst. Public Defender, Titusville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment of conviction for second degree murder. We reverse and remand for a new trial.

The question presented is whether the trial court erred in refusing to inquire as to whether the jurors had read certain news accounts relating to appellant’s trial.

Jury selection was completed on Monday afternoon, November 2, 1981. Before recessing until the following morning, the trial judge specifically ordered the jurors not to read any newspapers, especially the Cocoa Today and the Orlando papers, or to watch any news broadcasts about the case.

After the jury was sworn the next morning, defense counsel requested that the court question the jurors as to whether any of them had read news articles which had appeared in the Cocoa Today and Orlando Sentinel that morning. The court denied this request.

There do not appear to be any Florida cases addressing the procedure to be followed when a claim of potentially prejudicial publicity arises after the jury has been selected. However, numerous federal circuit courts of appeal and other state courts have considered the question and developed the following procedure. Initially, the trial court must determine whether the published material has the potential for prejudice. United States v. Perrotta, 553 F.2d 247 (1st Cir.1977); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (Mass.1978); Brown v. State, 601 P.2d 221 (Alaska 1979). If it does, then a two-step process is necessary. First, the court should inquire of the jurors as to whether any of them read the material in question. If none of the jurors read the material, then its publication could not have prejudiced the defendant and the trial may proceed. United States v. Carter, 602 F.2d 799 (7th Cir.1979); United States v. Khoury, 539 F.2d 441 (5th Cir.1976). If any of the jurors indicate they have read the material, they must be questioned to determine the effect of the publicity, i.e., whether they can disregard what they read and render an impartial verdict based solely on the evidence at trial. See, e.g., Margoles v. United States, 407 F.2d 727 (7th Cir.1969). This procedure has been deemed necessary even though the trial court repeatedly admonished the jury, as here, regarding the reading of newspapers during the trial. See, e.g., United States v. Carter; United States v. Pomponio, 517 F.2d 460 (4th Cir.1975); United States v. Barrett, 505 F.2d 1091 (7th Cir.1975).

In the instant case, the articles in question referred to a separate charge against appellant which arose out of a well publicized jail break attempt at the county jail. Clearly, such material had the potential for prejudicing appellant in his trial on an unrelated murder charge. However, the trial court failed to even make a threshold inquiry as to the possibility of prejudice. The court also failed to inquire as to whether any of the jurors had, despite the court’s admonition, read the articles. The court’s failure to take any action to determine whether the jurors had been exposed to and prejudiced by the articles requires that appellant be given a new trial.

We also consider one other point raised by appellant, that being whether his sixth amendment rights were violated when the trial court limited his cross-examination of Muszynski, the state’s jailhouse witness.

After witness Muszynski testified for the state to comments made to him in jail by appellant, appellant sought unsuccessfully to cross-examine him regarding allegations he made in a pending motion for post conviction relief to the effect that he was totally incompetent at the time he committed the crime he was convicted of, at the time of his trial, and at the time his motion for post conviction relief was filed in July, 1981. Appellant claims that his purpose in asking questions about these allegations was to attack Muszynski’s credibility: to show that Muszynski, who was giving vital evidence against appellant, was at the same time claiming to be incompetent. He was not seeking to challenge Muszynski’s competence or sanity.

It is elementary that a criminal defendant is to be afforded wide latitude when he cross-examines a witness against him and seeks to demonstrate bias or prejudice on the part of the witness. See Coxwell v. State, 361 So.2d 148 (Fla.1978); Lutherman v. State, 348 So.2d 624 (Fla. 3d DCA 1977). See also Steinhorst v. State, 412 So.2d 332 (Fla.1982). This is especially true when the cross-examination is of the key prosecution witness. Porter v. State, 386 So.2d 1209 (Fla. 3d DCA 1980).

The questions sought to be asked by appellant should have been permitted as Muszynski was a key witness for the state and the questions were relevant to the issue of Muszynski’s credibility. Appellant should have been permitted to question Muszynski regarding the claim in his motion for post conviction relief, filed just a few months before the instant trial, that he “was and still is totally incompetent” and how this squared with his ability to testify at the trial, since this apparent contradiction would have been relevant on Muszyn-ski’s truthfulness.

One final observation remains. The prosecutor exceeded the bounds of propriety in closing and rebuttal arguments. We believe, however, that no good purpose would be served by discussing the specifics of closing argument and are confident that a repetition of such offensive argument will not occur in appellant’s retrial.

REVERSED and REMANDED for a new trial.

ORFINGER, C.J., and COBB, J., concur.

      . The Cocoa paper had published a short article entitled “Re-trial in Murder Case Begins Today.” The Orlando Sentinel published an article entitled “Murder Suspect Charged in Attempted Jail Escape.” Appellant was identified in both articles and both articles referred to the fact that appellant had recently been charged in an escape attempt at the Brevard County jail.

        .See, e.g., United States v. Carter, 602 F.2d 799 (7th Cir.1979); United States v. Herring, 568 F.2d 1099 (5th Cir.1978); United States v. Perrotta, 553 F.2d 247 (1st Cir.1977); United States v. Khoury, 539 F.2d 441 (5th Cir.1976); United States v. Barrett, 505 F.2d 1091 (7th Cir.1975); Margoles v. United States, 407 F.2d 727 (7th Cir.1969); Reining v. United States, 167 F.2d 362 (5th Cir.1948). While the procedure enunciated in these cases does not appear to be constitutionally mandated, see United States v. Herring, 568 F.2d at 1105, at least two states which have recently considered the matter have adopted it. Brown v. State, 601 P.2d 221 (Alaska 1979); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (Mass.1978).

      . The mere fact that a juror may have been exposed to publicity about a case does not mean he cannot serve on a jury; rather the question is whether the juror can lay aside his impressions and opinions and render a verdict based on the evidence presented in court. United States v. Jiminez-Diaz, 659 F.2d 562 (5th Cir.1981). See also Irvin v. Doud, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1960); Singer v. State, 109 So.2d 7 (Fla.1959); Murphy v. State, 252 So.2d 385 (Fla. 3d DCA 1971).

      . Factors to be considered in determining the possibility of prejudice are how closely related the publicity is to the case, its timing, its prominence, its tone and the likelihood the jury was exposed to it. United States v. Herring, 568 F.2d at 1104-1105; Brown v. State, 601 P.2d at 232.


author: RYDER, Judge.

text:
    Jonathon Barclay SMITH and Thomas Wagner, Appellants, v. STATE of Florida, Appellee.
    Nos. 81-478, 81-618.
    District Court of Appeal of Florida, Second District.
    May 25, 1983.
    Rehearing Denied Sept. 23, 1983.

      Joseph P. McNulty of McNulty, Moritz, Pecarek & Dickey, Largo, for appellant Smith.
    John D. Fernandez, Clearwater, for appellant Wagner.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Smith and Wagner appeal from their convictions for possession of over 100 pounds of marijuana, alleging that the trial court erred in denying suppression of evidence.

The state charged appellants and others by information with possession of marijuana in excess of 100 pounds while carrying firearms. Appellants asserted numerous grounds in moving to suppress evidence which had been obtained with information gathered through the interception of wire communications. The grounds included allegations of deficiencies in the applications for orders authorizing three telephone wire intercepts. The asserted deficiencies were: lack of probable cause; staleness of the information in the applications; reliability of informants; applications for certain of the orders by persons not authorized by section 934.07, Florida Statutes (1975), and federal statutes; and failure to pursue investigative avenues other than wiretaps.

The lower court granted suppression of all information taken from the wiretaps, and the subsequent arrests and seizures, finding written and oral misrepresentations in the applications, confusion over exhibits to the applications, and staleness of the incriminating facts. This court held those findings unsupported and reversed the suppression order in State v. Brainard, 376 So.2d 864 (Fla. 1st DCA 1979).

After remand, appellants asserted their motion to suppress on the remaining grounds including that the applications for two of the three wiretaps were signed by an assistant rather than the state attorney. The lower court held a hearing to consider if the information gained, which led to the arrests of appellants and the subsequent seizure of contraband, was independent of the wiretaps. Two U.S. Customs Officers testified at the hearing.

Agent Murphy testified that surveillance of the various codefendants began after the first wiretap went into effect. The aircraft which brought marijuana into Pinellas County was identified through surveillance conducted at the St. Petersburg-Clearwater Airport and was connected to codefendant Brizzi. Brizzi was already known to law enforcement officers and was observed in the vicinity of the airplane. Appellant Smith and Brizzi were observed making tests on the aircraft with oxygen bottles and a bladder tank. Murphy testified that his experience indicated oxygen was not normally used on local flights unless experiments with oxygen were being conducted. Also, the installation of a bladder tank was usually for a long-range flight. The officers thus concluded that the aircraft was being prepared for a high altitude and extended flight.

The aircraft was subsequently seen departing the airport and was tracked by radar until lost in the vicinity of Bimini in the Bahamas. The officers had no knowledge from any source as to when and from where the plane would return. Later, the officers received information from the wiretap of a morning meeting between appellant Wagner and one Sauls which was to be held at a particular restaurant on U.S. Highway 19. The authorities placed the two subjects under surveillance, but both were lost soon after they left the restaurant. The officers then set up an extensive ground and air surveillance of the greater part of northern Pinellas County. Later that afternoon, officers in a sheriff’s department aircraft observed and identified the aircraft in question. Police were dispatched to the area where the plane was seen landing, and the deputies in the sheriff’s aircraft radioed information that bales were being removed from the plane to a van-type motor vehicle. Agent Murphy also observed the unloading from State Road 77.

Murphy testified that Wagner was arrested in the white van which had been at the unloading site. After Wagner exited the vehicle, Murphy observed a loaded .32 caliber firearm in the immediate area where Wagner had been seated (behind the driver’s seat, the firearm being within the reach of any person seated there).

Customs Officer Maeder testified he was informed by radio, after the unloading, that the subject aircraft was then flying in the direction of the St. Petersburg-Clearwater Airport. The aircraft landed at that airdrome. Maeder observed Smith exit the plane, carrying several small packages, and proceed to an automobile. As soon as Smith entered the vehicle, Maeder approached, identified himself, removed Smith from the vehicle, and “patted him down for weapons.” A .357 magnum pistol was found lodged in Smith’s pants. Maeder testified that Smith had no opportunity to have taken the gun from the car because he was approached as soon as he entered the vehicle.

After the hearing on the motion to suppress, the trial court found a sufficient basis for the arrests independent of and attenuated from the wiretaps. The court denied and dismissed the remaining issues of the motion to suppress, and found the holdings dispositive of the ease. Appellants entered pleas of nolo contendere to the charge. It was noted that appellants had preserved for appeal the denial of the motion to suppress, including those issues on the motion which had been stricken from the earlier interlocutory appeal, and the court’s ruling that the state could include the carrying of firearms enhancement for the offense charged.

The record reflects that the information which was instrumental in placing the law enforcement officers into a position to make arrests came from the first wiretap rather than the last two wiretaps. This information, together with the knowledge acquired through normal investigative procedures, rendered the information obtained from the second and third wiretaps superfluous. It follows that any taint which may have occurred by reason of the possible illegality of wiretaps two and three has been attenuated. See United States v. Brookins, 614 F.2d 1037 (5th Cir.1980). Hence, we need not address further the validity of the second and third wiretaps.

Of significant concern, however, is the question of the validity of wiretap one. The information leading to the arrests of appellants was obtained from wiretap one and through other investigative procedures. These other procedures were initiated principally because of knowledge gained from the first wiretap. Exploitation of the wiretap information, not independent lawful investigation or fortuitous discovery, led to the evidence obtained. See Shayne v. State, 384 So.2d 711 (Fla. 3d DCA 1980); State v. Maier, 378 So.2d 1288 (Fla. 3d DCA 1979). We are thus unable to find support for the trial court’s finding that the arrests and seizures were attenuated from and independent of the first wiretap. Therefore, if this wiretap was invalid, the arrests were improper. See Wong San v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Although the trial court incorrectly determined that the information leading to the arrests of appellants was attenuated from wiretap one, the court nevertheless properly denied appellants’ motion to suppress. Appellants have made several arguments, none of which leads us to a finding of reversible error.

We have considered and rejected certain arguments of appellants as to the insufficiency of the affidavit of application for wiretap one in State v. Brainard, supra.

Appellants’ contention that the police failed to pursue other investigative practices is refuted by the application affidavit for wiretap one. The showing that normal investigative techniques have failed or are unlikely to succeed, required by section 934.09(l)(c), Florida Statutes (1975), is made if wiretapping appears to be the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement. Zuppardi v. State, 367 So.2d 601 (Fla.1978); State v. Barnett, 354 So.2d 422 (Fla. 2d DCA 1978). Appellants’ further arguments challenging the sufficiency of the affidavit are without merit. See State v. Daniels, 389 So.2d 631 (Fla.1980); Hudson v. State, 368 So.2d 899 (Fla. 3d DCA), cert. denied, 378 So.2d 345 (Fla.1979).

The assertion by appellants that suppression was required due to defects in the reporting process concerning the progress and continued need for wire interceptions is without merit. There has been no clear demonstration that the information received from wiretaps one, two and three was improperly commingled in reports to the circuit judge who authorized the interceptions. See United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

Appellants’ argument that remand is necessary for a hearing by the trial court concerning the issue of 'nonminimization of the interception of communications, section 934.09(5), Florida Statutes (1975), must also fail. The trial court, after finding attenuation, denied and dismissed the remaining issues of the motion to suppress. It is clear that the issue of nonminimization is properly before this court. We find that appellants have not substantiated their contentions of nonminimization.

Appellants have maintained that if this court finds the trial court’s attenuation order to be incorrect, then the nolo conten-dere pleas are without foundation and appellants have not waived their rights to proceed on the motion to suppress or to a jury trial. This is incorrect. It was noted by the trial court and counsel below for each of the appellants that the issues preserved for appeal, in addition to the order finding attenuation, included those issues from the prior appeal which had been cross-assigned as error but were stricken by this court. Furthermore, the trial court’s denial and dismissal of other issues presented in the motion to suppress were preserved for this appeal. Hence, while we disagree with the finding of attenuation as to wiretap one, we agree with the denial of the motion to suppress. Wiretap one was valid. Therefore, in affirming the result below, that is, the denial of the motion to suppress, appellants’ nolo contendere pleas remain effective. See Brown v. State, 376 So.2d 382 (Fla.1979); McNamara v. State, 357 So.2d 410 (Fla.1978).

Appellants’ final argument concerns the propriety of enhancement of their sentences from third degree felonies to second degree felonies pursuant to section 775.-087(1), Florida Statutes (Supp.1976). The evidence indicates that appellant Smith, at the time of his arrest, had a .357 pistol in his trousers. Appellant Wagner was in a van which contained bales of marijuana. He was behind the driver’s seat. After ordering Wagner and others out of the van, a customs agent saw a .32 caliber pistol in the immediate area where Wagner had been while inside the van. The weapon was within Wagner’s immediate grasp. The evidence supports the finding that each appellant carried a firearm while in the act of possessing marijuana. Enhancement of the sentence of each appellant pursuant to section 775.087(1) was thus proper.

The convictions and sentences are therefore AFFIRMED.

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