author: PER CURIAM. SHORES, Justice.

text:
    Ex parte Geary Heber JONES. (In Re: Ex Parte: Geary Heber Jones). (Re: Geary Heber Jones v. State).
    82-880.
    Supreme Court of Alabama.
    June 22, 1983.
    Opinion Issued July 1, 1983.

      John C. Falkenberry, Frances Heidt, and Donald W. Stewart of Stewart, Falkenber-ry & Whatley, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Tom Allison, Asst. Atty. Gen., for respondent.
   ORDER

PER CURIAM.

Geary Heber Jones having filed in this Court a petition for writ of certiorari and petition for writ of habeas corpus, or, alternatively, petition for a writ of mandamus, to compel the setting of a bond on appeal and to admit petitioner to bail, and the same having been set down for hearing and argument before the court, it is considered that the petitioner is entitled to relief.

IT IS, THEREFORE, ORDERED that the writ of certiorari to the Court of Criminal Appeals be, and the same is hereby, granted.

IT IS FURTHER ORDERED that the provisions of Rule 39(f) and (g), Alabama Rules of Appellate Procedure, be, and the same are hereby, suspended, and this cause is remanded to the Court of Criminal Appeals with directions to enter an order remanding this cause to the Circuit Court of Jefferson County, Alabama, for the purpose of fixing a bond under the provisions of § 12-22-170, Code 1975.

Opinion of the Court to follow.

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

EMBRY, J., not sitting.

OPINION

SHORES, Justice.

Petitioner, Geary Heber Jones, was convicted of trafficking in cannabis, pursuant to § 20-2-80, Code of Alabama 1975, on June 17, 1983, and was forthwith sentenced by the trial judge to a term of ten years in the penitentiary and a fine of $50,000, as mandated by statute. The petitioner gave oral notice of appeal and requested the circuit judge to set a bond for his release pending appeal, pursuant to § 12-22-170, Code. The circuit judge denied the petitioner’s request for bail and entered the following order:

“This sentence is pronounced under § 20-2-81 known as the Trafficking Statute which prohibits suspension, deferment and withholding sentence and restricts eligibility for parole prior to serving the minimum term of imprisonment.
“Notice of appeal is given and defendant will be represented by Attorneys Heidt and Stewart. No bond is set because the Court of Appeals opinion in Smith v. State, 4 Div. 58, prohibits bond in this type of case under this particular statute.”

The petitioner then filed in the Court of Criminal Appeals a petition for writ of ha-beas corpus or, alternatively, a petition for writ of mandamus to compel setting bond pending appeal. That court denied the petition on June 21, 1983. Judges Tyson and Harris dissented.

After his application for rehearing was denied by the Court of Criminal Appeals, the petitioner filed a petition for writ of certiorari or habeas corpus or, alternatively, petition for writ of mandamus in this Court.

Petitioner argues that he is entitled to bond pending appeal under the express language of § 12-22-170, Code. That statute has been the law in this state since 1852. It provides, in pertinent part:

“When any question of law is reserved in case of a felony and it shall be made known to the court that the defendant desires to take an appeal to the appropriate appellate court, judgment must be entered against the defendant, but execution thereof must be stayed pending the appeal and the defendant held in custody. If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge _” (Emphasis added.)

The State counters by arguing that § 20-2-81, Code, supersedes § 12-22-170 in trafficking cases. The pertinent parts of that statute provide:

“(a) Notwithstanding the provisions of chapter 22, Title 15, with respect to any person who is found to have violated this article, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall such person be eligible for parole prior to serving the mandatory minimum term of imprisonment prescribed by this article.”

Chapter 22 of Title 15 deals with pardon, probation and parole. It does not deal with bail. Section 20-2-81 provides that persons who are found guilty of violating the trafficking statute shall not be considered for pardon, probation or parole. It does not say that such persons shall also be denied bail pending appeal, a right granted by § 12-22-170 to all convicted criminal defendants whose sentence is twenty years or less. The legislature could have withheld this privilege, as well as probation, pardon and parole, had it chosen to do so, but it did not refer to § 12-22-170 either expressly or by referring to bail pending appeal. The legislature obviously intended that all persons convicted of trafficking would receive a minimum mandatory sentence (unless they fall within the express exception set out in § 20-2-81(b)) and that the sentence would be served. Neither the trial courts nor the Pardons and Parole Board has the power to reduce or suspend the mandated sentence. Williams v. State, 420 So.2d 91 (Ala.Cr.App.1982). Had the legislature also intended to change the law with respect to bail pending appeal as set out in § 12-22-170, Code, it could have said so. We cannot read into the statute a provision which the legislature did not include.

The Court of Criminal Appeals remanded Smith v. State, 436 So.2d 1 (Ala.Cr.App.1982), for imposition of a proper sentence. Smith was convicted of trafficking in cannabis in violation of § 20-2-80. The trial court sentenced him to three years. The statute mandates a three-year sentence and a $25,000 fine. The Court of Criminal Appeals correctly held that the trial court had no authority under § 20-2-81(a) to suspend the $25,000 fine.

It incorrectly concluded in the present case that § 20-2-81 operated to deny the petitioner bond pending appeal.

The writ of certiorari is granted, and the cause is remanded to the Court of Criminal Appeals for entry of an order directed to the trial court to fix bond pending appeal of the conviction of Jones pursuant to § 12-22-170, Code of Alabama 1975. We note that the Court of Criminal Appeals did just that in an identical case, Ex parte Dickerson, 7 Div. 901, by unpublished order dated October 2, 1981.

WRIT GRANTED; REVERSED AND REMANDED.

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

EMBRY, J., not sitting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Geary Heber JONES. (In re: Geary Heber Jones v. State of Alabama).
    6 Div. 232.
    Court of Criminal Appeals of Alabama.
    June 23, 1983.
   PER CURIAM.

ORDER ISSUED REMANDING CAUSE TO THE CIRCUIT COURT OF JEFFERSON COUNTY FOR THE PURPOSE OF FIXING A BOND IN THIS CASE UNDER THE PROVISIONS OF SECTION 12-22-170, CODE 1975, ON AUTHORITY OF EX PARTE GEARY HEBER JONES, ALABAMA SUPREME COURT, NUMBER 82-880.

All the Judges concur.


author: HUBERT TAYLOR, Judge. BOWEN, Presiding Judge,

text:
    Richard Isador JOHNSON v. STATE.
    1 Div. 458.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Oct. 4, 1983.

      Major Madison, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant was indicted by the Mobile County Grand Jury on May 14, 1982, for the possession of cocaine in violation of § 20-2-70, Code of Alabama 1975. On July 29, 1982, appellant was convicted and sentenced to ten years in the penitentiary. This appeal followed.

Officer Myles, of the Mobile Police Department, responding to a call that gun shots were being fired at a place called The Flame Club, drove his patrol car toward the club. As the officer approached the club, he noticed appellant driving away from the club at a “high rate of speed.” The officer followed the appellant and eventually pulled him over to check his I.D. Upon looking through the vehicle’s window, he saw a revolver on the floorboard. Appellant did not have a permit for the pistol; therefore, he was placed under arrest. The officer conducted a “pat down search” or frisk of appellant; finding nothing, he put appellant in the back seat of his patrol car.

After booking the appellant, Officer Myles searched under the rear seat of his patrol car and found a vial containing cocaine. The officer testified that he had also searched under the rear seat of his patrol car at the beginning of his shift and had found nothing. Appellant was the only occupant of the rear seat between the times of the two searches. Appellant was later arrested for possession of cocaine.

I

Appellant contends that there was insufficient evidence to submit the issue of guilt to the jury. The evidence in this case was all circumstantial. The standard for reviewing the sufficiency of circumstantial evidence was set out by this court in Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1979), in the following manner:

“The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude, [cites omitted] We must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might reasonably so conclude." (Original emphasis.) (Cites omitted.) Cumbo, supra, at 874.

In the case sub judice, there was extensive testimony that: the rear seat of the patrol car had been removed and the area underneath thoroughly searched prior to appellant’s arrest; the doors of the patrol car had been locked at all times between the two searches, the vial had been found directly underneath the area where appellant had been sitting; and appellant had been the only person in the patrol car between the times of the searches other than Officer Myles. Testimony favorable to appellant indicated that: he was frisked before being put into the patrol car and no drugs were found; no fingerprints were found on the vial; no drugs were found in appellant’s car; and the officer never saw appellant put anything under the seat or drop anything to the floor.

This case is similar in many respects to the recent case of Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982), rev'd, 435 So.2d 1365 (Ala.1983). There, appellant was charged with possession of controlled substances found under the passenger seat of a vehicle in which she was riding. The automobile did not belong to her, however, and she had met the driver/owner just a few hours prior to the arrest.

The Supreme Court of Alabama emphasized that the mere presence of a defendant in an automobile containing contraband is not sufficient in itself to support a conviction for possession of controlled substances. The State must introduce additional evidence from which possession and knowledge could be inferred.

In that case, the State relied on the testimony of a witness who thought he had seen appellant earlier in the evening of the arrest with a bag similar to the one in which the controlled substances had been found. He said, however, that he could not be sure because the lighting was too poor. The court held that, even taken together, mere proximity (the bag being found under the seat in which she was sitting) and the testimony of the State’s witness did not provide a sufficient link between appellant and the contraband.

In the case sub justice, appellant did not own the vehicle nor was he a frequent passenger in the vehicle. The vial that was found was small, about the size of a person’s finger. The vehicle in question was a police car used to transport criminals on a daily basis. The possibility is very great that the officer overlooked the vial during his initial search and that another of the many criminals transported in the vehicle dropped it there. The link in this case is even weaker than that in Story, supra, because the State has only proximity to rely on.

Appellant was frisked before being put in the vehicle, without drugs being found, and the officer never saw appellant with any drugs; there is no connection between appellant and the vial except proximity. On this ground alone, the judgment of the lower court is due to be reversed.

Even assuming the test set forth in the case of Story, supra, was met, the trial court committed reversible error in failing to charge the jury on the element of knowledge. Appellant requested charge number 6, which reads as follows:

“You are instructed that knowledge of the presence of narcotics is an indispensable element of the crime of possession of narcotics. The prosecution has the burden of establishing such knowledge by proof which satisfies you in convincing manner, beyond reasonable doubt.”

If the trial court, in its oral charge, substantially covers a written request, even if the request is a correct statement of the law, refusal of the request is not error. A.R.Crim.P.Temp. 14.

The oral charge in this case, in pertinent part, reads as follows:

“What must the State prove beyond a reasonable doubt and to a moral certainty? They must prove, number one, that the substance in question was in fact as it states in this indictment, cocaine. Two, they must prove beyond a reasonable doubt and to a moral certainty that Richard Isador Johnson either had actual possession of the drug or, two, constructive possession of the drug. It is not necessary that the State prove beyond a reasonable doubt and to a moral certainty that the Defendant had actual possession of any drug. It is necessary for the State to prove beyond a reasonable doubt and to a moral certainty that he either had actual or constructive possession of the drug, consistent with the indictment in this case.”

The trial judge did not cover the element of knowledge in his oral charge and, therefore, refusal of appellant’s written request on this element was error. See McHellen v. State, 351 So.2d 689 (Ala.Cr.App.1977).

It is the opinion of this court that the order of the lower court is due to be reversed and this cause remanded.

REVERSED AND REMANDED.

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

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

BOWEN, Presiding Judge,

concurring in result only.

I concur in the reversal of this cause because the trial judge refused to instruct the jury on the element of the defendant’s knowledge of the presence of the drugs.

I do not think that the evidence was so insufficient that a reversal is required on that ground. Story v. State, 435 So.2d 1360 (Ala.Cr.App.1982) reversed, 435 So.2d 1365 (Ala.1983), is clearly factually distinguishable. A jury question was presented and this Court should not usurp that function. Dolvin v. State, 391 So.2d 133 (Ala.1979).


author: BEATTY, Justice. MADDOX, Justice

text:
    Ex parte State of Alabama. (Re Richard Isador JOHNSON v. STATE of Alabama).
    83-61.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for petitioner.
    Major Madison, Jr., Mobile, for respondent.
   BEATTY, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and JONES and SHORES, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

The state, in its brief, admits that the case should be reversed, because the trial court failed to instruct the jury properly.

“The majority opinion is correct on one point in citing Ex parte Story v. State, [435 So.2d 1365 (Ala.1983),] as authority: the State must introduce evidence in addition to mere presence of a defendant in an automobile containing contraband from which possession and knowledge can be inferred. The petitioner contends that additional evidence from which knowledge can be inferred was presented ... for knowledge can be proven by or inferred from circumstantial evidence. Coleman v. State, 394 So.2d 82 (Ala.Crim.App.1981). However, because knowledge is an element of the crime charged, and because the jury was not charged on the knowledge element, this case should be reversed and remanded based on the failure to give the requested, written jury charge, not because of insufficiency of the evidence.” (Emphasis added.)

I believe thé state adduced sufficient evidence to allow the case to go to the jury on the possession issue.


author: BOWEN, Presiding Judge.

text:
    Donald Dewayne LEE v. STATE.
    1 Div. 587.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    C. MacLeod Fuller, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Donald Dewayne Lee, the appellant, was indicted and convicted for the attempted murder of Mobile Police Officer Steve Arthur. Sentence was life imprisonment.

Although eight issues are raised on appeal, the questions they present have been fully answered by the Attorney General in brief and further consideration is not warranted. Even if the pretrial identification was found to be suggestive, the in-court identification was based on an independent source and was consequently reliable and admissible. Cartee v. State, 390 So.2d 1121 (Ala.Cr.App.), cert. denied, 390 So.2d 1126 (Ala.1980); Brazell v. State, 369 So.2d 25 (Ala.Cr.App.1978), cert. denied, 369 So.2d 31 (Ala.1979).

Lee has filed a pro se brief in which he alleges he was denied a speedy trial and was denied the effective assistance of counsel. Lee was tried three months after his indictment in October of 1982. There is simply no evidence to support this charge. Likewise, there is nothing in the record to indicate incompetence of counsel. To the contrary, the record reflects that counsel was very competent and conscientious in his representation of Lee.

The judgment of the circuit court is due to be affirmed.

AFFIRMED.

All Judges concur.


author: TYSON, Judge.

text:
    Oliver NICHOLES v. STATE of Alabama.
    1 Div. 659.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    W. Donald Bolton, Jr., Foley, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Oliver Nicholes was indicted for the first degree kidnapping of the victim on March 8, 1981, in violation of Title 13A-6-43, Code of Alabama 1975.

The jury found the appellant guilty as charged and the trial court set sentence at life imprisonment in the penitentiary.

This case is a companion case to Nicholes v. State, 409 So.2d 454 (Ala.Cr.App.1982), and the complete facts which constitute the kidnapping charge in the instant appeal are fully set forth in Nicholes, supra.

I

The issue on this appeal as in the companion case is whether or not the trial court properly overruled appellant’s motion to suppress the out-of-court identification on grounds that the procedure used was impermissibly suggestive and unreliable.

We have carefully considered the record, including the supplemental record which contains the pre-trial proceedings involving a motion to suppress held prior to trial. This court is of the opinion that the standards which must be used to determine whether or not the reliability of the identification procedure constituted a denial of due process is one in which all identification procedures must be considered and the totality of the circumstances reviewed carefully in accordance with Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We are also mindful of the pronouncements of the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

We have carefully weighed the pretrial identification procedures at which two photographic lineups were shown to each of the two victims and in addition, two lineups were conducted at which the victims were asked to view the alleged assailants. The discrepancies in the identification are fully set forth in the companion case opinion Nicholes v. State, 409 So.2d 454 (Ala.Cr.App.1982).

After reviewing the totality of circumstances surrounding the identification procedures involved in this case, this court finds nothing in the evidence to indicate any impermissible suggestiveness by the police in those procedures which would give rise to the likelihood of mistaken identification. The prosecutrix in this cause was certain, in all but one instance, of her identification of the appellant.

We have searched this record and find no error prejudicial to this defendant. For the reasons stated, the judgment of the Circuit Court is due to be and the same is, hereby, affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Julian A. MURPHY v. STATE.
    3 Div. 640.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Edward W. Drinkard, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Julian A. Murphy, filed two petitions for writ of error coram nobis. The first claims that he was convicted with the use of perjured testimony; the second is a claim of ineffective assistance of counsel. After a hearing, both petitions were denied. Murphy brings a consolidated appeal to this court.

In 1977, Murphy was convicted of the crime of carnal knowledge of a female under twelve years of age and the carnal knowledge of a female over twelve, but under sixteen, years of age. The victim and prosecutrix in both cases was Murphy’s daughter. During the hearing on the petition, the daughter, who is now eighteen and was thirteen at the time of the trials, testified that her complaints against her father were lies and that she was forced to lie by her older sister because of ill feelings against the father. She also signed an affidavit to the same effect.

For the writ to be an effective remedy, the basis of the petition must be grounded on facts unknown at the time of the trial, and the State must knowingly have used perjured testimony. Neither of these requirements has been met. From the time the original complaint was filed until the jury reached a verdict, the prose-cutrix changed her story at least three or more times. These inconsistencies were brought out at trial and known to the jury; it was not something newly discovered after the trial. Additionally, there was some physical evidence that supported the inference of Murphy’s guilt. We cannot say, under these circumstances, that the State knowingly used perjured testimony.

Although the testimony of the prosecu-trix at the hearing on petition for the writ appears to be sincere, the writ will not lie for that reason. See Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Caldwell v. State, 36 Ala.App. 612, 63 So.2d 384 (1952).

Murphy also raises the issue of ineffective assistance of counsel. During the course of Murphy’s first trial (carnal knowledge of a female under twelve), there was brief testimony by the prosecutrix that her father had intercourse with her when she was eight or nine years old. She vaguely described the event by saying that her father came to her room one morning (date not specified), made her remove her clothes, and had intercourse with her. The major portion of the remainder of the record deals with an incident that occurred after the prosecutrix was twelve years old. That incident was the basis for the complaint that resulted in Murphy’s arrest and a separate trial in which he was found guilty of the carnal knowledge of a female over twelve, but under sixteen, years of age.

Murphy claims that he had ineffective assistance of counsel because his attorney failed to assert his claim of former jeopardy when the second trial commenced. In fact, however, the attorney did file a plea of autrefois convict at the beginning of the second trial; the plea was denied. Murphy was convicted under two different statutes, and the State, as described earlier, made out a prima facie case on the offense charged in the first indictment.

Murphy, however, also urges that his representation was ineffective because there was no motion for a mistrial when the evidence of the subsequent incident-was introduced, and no motion for a new trial at the conclusion of the proceedings, and because his counsel failed to raise the issue on appeal. We disagree.

The law in this State allows the “prosecutor to offer evidence of acts occurring after the alleged act on which the indictment is based as tending to sustain the principal charge by showing the relationship and intimacy of the parties.” Harrison v. State, 235 Ala. 1, 178 So. 458 (1937). In Durham v. State, 47 Ala.App. 89, 250 So.2d 693 (1969), the State introduced evidence of sexual intercourse between the defendant and prosecutrix after she had passed her sixteenth birthday. The State, upon learning her age, introduced evidence of an incident that occurred six months earlier when the victim was fifteen, such later evidence, of course, conforming to the indictment. This court said, “We conclude that the act committed June 13, 1967, [the act occurring six months later] was admissible as tending to show relation and intimacy of the parties and was not so distant in point of time as to be without probative force.” 47 Ala.App. at 90, 250 So.2d at 694.

Harrison, supra, said, “If such subsequent acts are too remotely related to the act upon which the prosecution is based, in point of time, to be without probative force, such evidence should not be admitted.” 235 Ala. at 1, 178 So. at 459. This principle was drawn from People v. Thompson, 212 N.Y. 249, 106 N.E. 78 (1914), in which the court said:

“The acts offered as corroborative may be so remote as to be irrelevant. Remoteness, however, does not necessarily result from mere lapse of time, which is not necessarily an element of it. Its essence is such a want of open and visible connection between the evidentiary and the principal facts that, all things considered, the former are not worthy or safe to be admitted in proof of the latter. If those acts are of a character or were done under conditions not tending to prove the illicit desire and willingness at the time of the offense charged, they should be rejected by the trial judge. If, on the other hand, he deems them so related, by brevity of time or continuity of lewdness or otherwise to the principal act as to justify the inference or as to indicate that the mutual disposition of the parties evidenced by them existed at the time of it, they should be received and submitted to the jury_” 106 N.E. at 79. (Emphasis added.)

In the case sub judice, there was testimony that the acts of lewdness were continuous from the first incident until the time of the complaint. Additionally, the testimony indicated that the various incidents were extremely similar in nature; namely, they occurred in the same manner, in the same house, in the same room, and even in the same bed. The admission of evidence tending to prove an incident outside the scope of the indictment was not error.

Additionally, trial counsel went through a full scale suppression hearing and vigorously objected several times to evidence that he felt was outside the scope of the indictment. Under the circumstances, we cannot say that the conduct of trial counsel reduced the trial to a farce, sham, or mockery of justice. Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978).

The judgment of the lower court is affirmed. ■>

AFFIRMED.

All the Judges concur.


text:
    Willie THOMPSON, Jr. v. STATE.
    3 Div. 885.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      J. McGowin Williamson and John A. Ta-ber, Greenville, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Willie Thompson, Jr. was indicted and convicted for the murder of Freddie Lee Smith. Sentence was fifty years’ imprisonment as an habitual offender. After retaining new counsel, Thompson filed a motion for new trial wherein he contends that he did not receive effective representation because trial counsel did not exercise due diligence in preparing the case for trial and in procuring the necessary witnesses for the defense.

Thompson was the only witness to testify at the hearing on the motion for new trial. His testimony revealed the following facts. Shortly after his arrest, his family hired Warren Reese to represent him on the murder charge. Thompson saw Reese “(o)nce weekly, mostly two, maybe three times a week." Between the arrest in May and the trial in November of 1982, Reese was also employed by Thompson to represent him before the Social Security Administration on October 20th and in “other possible litigation.”

Thompson stated that he “gave Mr. Reese a list of names that he should talk to of witnesses, you know, which he never did.” Thompson stated that “to his knowledge" Reese did not talk to the witnesses prior to trial:

“Mr. Reese hadn’t talked to the witnesses. I found out Monday morning he hadn’t talked to the witnesses. He wanted me to have all the witnesses there that Monday morning so he could talk to them and I was going to court that same day (November 12, 1982).”

Thompson testified that on the day of trial he tried to discharge Reese and told him “to let the Court know that he was released as my power of attorney and he (Reese) talked to me.” Thompson did not advise the trial court of the fact that he wanted to discharge Reese until the motion for new trial despite the fact that he had retained different counsel to represent him at his sentencing hearing.

Although Thompson alleges that Reese failed to subpoena “those witnesses” who were material to the defense, none of these material witnesses were ever named nor was there any proffer made in the trial court of their expected testimony. In brief and in oral argument, it is alleged that these missing witnesses would substantiate Thompson’s trial testimony of the deceased’s violent character and show the mitigating circumstances of the deceased’s earlier assault upon Thompson. As such, the testimony of these witnesses would have been cumulative of Thompson’s trial testimony. 24 C.J.S. Criminal Law, Section 1459 (1961) (“Cumulative evidence, ... may be defined as additional evidence of the same general character as evidence received on the trial to the same fact or point. Ordinarily, newly discovered evidence will be taken outside the definition of ‘cumulative evidence’ and afford the basis for a new trial only when it relates to a particular material issue concerning which no witness has previously testified, or is of a higher and different grade than the previous evidence on the same material point”). “No ineffective representation results where trial counsel fails to call witnesses whose testimony would only be cumulative to evidence already in the record.” Robinson v. State, 361 So.2d 1172, 1175 (Ala.Cr.App.1978).

The inadequacy of defense counsel’s pretrial investigation may rise to the level of a violation of the accused’s Sixth Amendment right to the effective assistance of counsel regardless of the standard for evaluating ineffectiveness claims. Roberts v. Wainwright, 666 F.2d 517 (11th Cir.1982); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973). It is fundamental that counsel must be given adequate time for preparation. Brown v. State, 395 So.2d 121 (Ala.Cr.App.1980), cert. denied, 395 So.2d 124 (Ala.1981); Marler v. State, 382 So.2d 644 (Ala.Cr.App.1980); Kearley v. State, 52 Ala.App. 405, 293 So.2d 322 (1974). “We have often said that a defense attorney must be prepared to investigate and develop evidence on behalf of his client.... An attorney does not provide effective assistance if he fails to investigate sources of evidence which may be helpful to the defense.” Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979). “Counsel is expected to exercise diligence in preparing his case for trial and for procuring necessary witnesses.” Bailey v. State, 398 So.2d 406, 413 (Ala.Cr.App.1981). “Not only does defense counsel have a duty to seek to determine all relevant facts known to the accused but he also has a duty to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.” Baxter v. State, 360 So.2d 64, 66 (Ala.Cr.App.1978). These cases support Thompson’s contention that “you cannot have effective representation without investigation.”

Here, the only showing of Reese’s incom-. petency is Thompson’s own testimony. We find that insufficient.

“In reviewing the refusal of a motion for a new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial judge. The decision on the motion rests largely within his discretion.” Williams v. State, 348 So.2d 1113, 1115 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1116 (Ala.1977). “Since the presumption is in favor of the propriety of the trial and verdict, the burden is on accused to support by ■ proof his contention that he is entitled to a new trial, and that the particular ground relied on exists.” 24 C.J.S. Criminal Law, Section 1480 (1961). The burden on the accused to establish his claim of ineffective assistance of counsel is heavy. Taylor, 291 Ala. at 763, 287 So.2d 901. In assessing that claim we look to the entire record.

In this case the record shows that at trial Reese called five witnesses in Thompson’s defense. One witness who had been subpoenaed was out of state. While it is clear that some of these witnesses did not testify as expected, the fact that a witness does not answer as anticipated, or even supplies information detrimental to the accused, does not automatically establish a prima facie case of inadequate preparation by counsel.

Here, there was neither a showing of which witnesses were absent nor of the nature and materiality of the evidence to be given by such witnesses. Consequently, the denial of the motion for new trial was not error. Hull v. State, 232 Ala. 281, 282, 167 So. 553 (1936). See also Kelly v. State, 423 So.2d 343 (Ala.Cr.App.1982); Scoggins v. State, 398 So.2d 353 (Ala.Cr.App.), cert. denied, 398 So.2d 357 (Ala.1981); McKinnis v. State, 392 So.2d 1266 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981).

We also note that the motion for new trial is not verified and states only general grounds for relief (“That the defendant was not represented by competent counsel on the trial of this cause”). “Assertions of counsel in an unverified motion for new trial are bare allegations and cannot be considered as evidence or proof of the facts alleged.” Daniels v. State, 416 So.2d 760, 762 (Ala.Cr.App.1982).

In conclusion, we find Thompson’s allegations to be baseless and without merit. Huff v. State, 267 Ala. 282, 285, 100 So.2d 769 (1957).

The State’s evidence shows that Thompson shot Smith. After Smith fell to the floor, Thompson shot him again and then kicked Smith. No weapon was found on Smith. We recognize that Thompson was greatly displeased with his retained counsel’s performance after he had been convicted and sentenced. Yet, we do not think that counsel should be penalized for the fact that he is not a magician, Henderson v. State, 45 Ala.App. 143, 144, 227 So.2d 140 (1969), nor for his lack of “druidic magical powers to produce an acquittal.” Carmack v. State, 41 Ala.App. 552, 141 So.2d 208, cert. denied, 273 Ala. 705, 141 So.2d 209 (1962).

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

AFFIRMED.

All Judges concur.


text:
    Eddie ROBINSON v. STATE of Alabama.
    6 Div. 126.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      William M. Dawson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and R. David Christy, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Eddie Robinson was indicted for rape in the first degree in violation of § 13A-6-61, Code of Alabama 1975. The jury found the appellant guilty of the lesser included offense of sexual misconduct and the trial judge sentenced him to twelve months’ imprisonment in the Walker County Jail.

On June 22, 1982, the appellant was at his uncle’s home watching television with his three cousins. Around 11:00 p.m., the appellant’s uncle went to work. His three cousins went to sleep in their bedrooms while the appellant slept on the sofa.

Sometime during the night, the victim, who was deaf and mute, got out of bed to go to the bathroom. As she was walking down the hallway, the appellant grabbed her, the prosecutrix, pulled her into the living room and threw her on the sofa. The appellant began kissing the victim and then forced her to have sexual relations with him.

The appellant testified that he did have sexual intercourse with the victim, but that she had consented.

I

Prior to trial, the State provided defense counsel with a copy of the appellant’s statement which he gave to the police. When the State attempted to introduce the statement into evidence at trial, defense counsel objected to its admission because a correction had been made in the statement which was being offered, and defense counsel had not been notified of this correction. The correction which was made in the statement was that the words “she can hear” were changed to “she can't hear”.

While we do 'not approve of the State’s conduct in making the correction and failing to notify defense counsel of such, we cannot see how this action prejudiced the appellant in any way. The fact of the victim’s inability to hear was never in dispute. While the State should have notified defense counsel of the correction which it made, we find this error to be harmless under the evidence given at trial. A.R.A.P. 45.

II

The appellant’s contention that the State failed to prove a prima facie case is also without merit.

Prom our review of the record, we find there was sufficient evidence presented by the State from which the jury could conclude, by fair inference, that the appellant was guilty of the offense charged, beyond a reasonable doubt.

Ill

The appellant argues that the appellant was denied a fair trial because the State failed to obtain “the least interested person available” as an interpreter for the victim. Instead, the court allowed the victim’s teacher and friend to act as interpreter for her.

In Burgess v. State, 256 Ala. 5, 53 So.2d 568 (1951), the Alabama Supreme Court stated:

“In determining the qualifications of such witness to testify and the selection and qualification of the interpreter, much must be left to the sound discretion of the trial court who has full opportunity to see and observe the witness, and the interpreter, in the presence and hearing of the interested parties and their counsel, much of which cannot be portrayed on the written pages of the record. Pruitt v. State [232 Ala. 421, 168 So. 149] supra; 53 Am.Jur. p. 44 § 29.”

In the case at bar, the trial judge held a hearing outside the presence of the jury to determine if the interpreter was properly qualified. The trial judge thoroughly examined the interpreter concerning her qualifications and any feelings of partiality she might have toward the victim. After this hearing, the trial judge determined the victim was competent to testify and her teacher and friend was qualified to act as her interpreter. Numerous cases in Alabama illustrate that the interpreter for a deaf mute at a trial does not necessarily have to be the “least interested person available.” See Hyman v. State, 338 So.2d 448 (Ala.Cr.App.1976); Brown v. State, 331 So.2d 820 (Ala.Cr.App.1976); Burgess v. State, supra; Almon v. State, 21 Ala.App. 466, 109 So. 371 (1926) (rev’d on other grounds).

Therefore, the appellant failed to establish that the trial judge abused his discretion in this matter.

IV

The appellant urges the trial judge should have instructed the jury on the possible range of punishment for the offense of sexual misconduct, after he characterized the offense as a misdemeanor.

We do not agree with the appellant. As a matter of law, the trial judge sets the punishment in such misdemeanor cases. The range of punishment should not be considered by the jury when they are deciding upon the guilt or innocence of the defendant. The jury should base their verdict solely on the evidence offered and heard at trial and not on the possible sentences which the defendant could get if convicted. Cabaniss v. City of Tuscaloosa, 21 Ala.App. 507, 109 So. 761 (1926).

We find no error on this issue.

V

We find no merit to the appellant’s contention that the trial judge should have instructed the jury about the possible defense of intoxication.

As provided by § 12-16-13, Code of Alabama 1975, “Charges moved for by either party must be in writing ...” We do not find any written requested charges concerning intoxication in this record, therefore, we cannot consider this issue on appeal. Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974). Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981) affirmed 414 So.2d 993 (1982).

VI

The appellant contends reversible error occurred because the trial judge failed to instruct the jury that consent may be an absolute defense to rape.

The refusal of a charge, though a correct statement of law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the trial court’s oral charge or in written charges given at the request of the parties. Ala.Code, § 12-16-13 (1975).

The trial judge thoroughly instructed the jury that forcible compulsion was an element of the offense of rape. Certainly, as the State points out, forcible compulsion and consent cannot co-exist. Therefore, since the trial judge instructed the jury that forcible compulsion is an element of the offense of rape, it was not necessary to instruct them that lack of consent is also an element or that consent is a defense to that crime.

Furthermore, the appellant was not convicted of rape but rather of the lesser included offense of sexual misconduct. The trial judge did instruct the jury that lack of consent was an element of the offense of sexual misconduct. Therefore, since the appellant was not convicted of the greater offense of rape, we fail to see how the appellant was harmed by the trial judge’s failure to instruct the jury that consent is a defense to rape. Therefore, if the trial judge’s failure to give the requested instruction was error, it was harmless. A.R.A.P. 45.

We have examined this record and find it free of error. The judgment of the trial court is due to be and is hereby affirmed.

Affirmed.

All the Judges concur.


author: HARRIS, Judge.

text:
    John Lee KENDRICK v. STATE.
    7 Div. 143.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      Pope L. Moseley, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Janet A. Wade, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

John Lee Kendrick, appellant, was indicted for murder by the Talladega County Grand Jury during its January 1983 term. At trial, on March 21, 1983, the jury found him guilty as charged, and he was sentenced to life imprisonment in the state penitentiary.

Gordon Zook testified at the trial that on October 3, 1982, he was employed as a deputy sheriff with the Talladega County Sheriff’s Department and that at approximately 2:00 p.m. he received a call reporting a shooting at the residence of Mae Dates in the Odena Community. In a matter of minutes he arrived at the scene, where he found the body of a man later identified as Henry McCain. Subsequently, Mr. Conville and Mr. Jones, employees of the ambulance service, and Lester Nicholson, Chief Sheriff’s Investigator for the south end of Talladega County, arrived. While Mr. Nicholson mapped out the area, examined the body and released it to the ambulance service personnel, Mr. Zook contacted witnesses to the shooting and began taking statements from them.

Kenneth Kelley, who had earlier driven John Lee Kendrick away from the scene, got into Mr. Zook’s car with him, and, with Mr. Nicholson following in a second car, led the police officers to the spot where he had left Kendrick. Appellant was apprehended two or three miles away from the scene of the shooting. Mr. Zook testified that, from his staggering gait and the smell of alcohol on his person, appellant appeared to have been drinking. During a search of appellant’s clothing, Mr. Nicholson found in his boot a gun which he identified in court and described as a .38 caliber Smith and Wesson pistol.

Kenneth Kelley, testifying to events on the day of the shooting, stated that he was the owner and operator of a 1977 Oldsmobile Cutlass automobile in which he, John Lee Kendrick, Boots Stone, and Boots’s nephew rode to the Mae Dates residence. In route, the four men stopped and bought half a case of beer. Kelley testified that they reached the residence at nine or ten o’clock and that, along with a group of other people, he was there most of the rest of the morning of October 3, 1982. He reported that the men stood around and sat around drinking beer, rum, and wine, talking and arguing about wrestling. There had been a wrestling match earlier and another match was scheduled for the following Saturday between appellant and Henry McCain.

At some point in the morning Kenneth Kelley, Henry McCain, Boots’s nephew, and Calvin Jackson left and returned with another half case of beer. Kenneth Kelley reported that afterwards everyone was having a good time, but that the appellant and Bud Kelley got into an argument, during which Bud Kelley slapped appellant. The argument apparently centered around the scheduled wrestling match and betting on the match.

Kenneth Kelley reported that appellant took a piece of wood from Mae Dates’s wood pile and approached Henry McCain from the rear with the apparent intention of hitting him with it. But Kenneth Kelley stopped appellant, who dropped the piece of wood.

After this incident Kenneth Kelley told John Lee Kendrick to get in his car so that he could take him home. Appellant got back into the back seat on the driver’s side. Kenneth Kelley testified that Henry McCain then tried to hit appellant, but was prevented from doing so because the window of the car was partially up. Here, the State claimed surprise because Kelley had testified before the grand jury that Henry McCain had not said or done anything to the appellant. The court allowed the State to cross-examine its witness regarding the contradictory testimony.

After appellant, Boots Stone, Boots’s nephew, and Kenneth Kelley were all in the car, Kelley proceeded to drive Boots Stone and his nephew home. During the trip appellant kept repeating, “Nobody slap me and live.” After he let Boots Stone and his nephew out, Kelley drove appellant to a Mrs. Crawford’s house, where appellant had been living. Appellant got out of the car, went in the house and got a gun and came back out to the car. He got in and demanded to be taken back to Mae Dates’s house.

Kelley complied with appellant’s demand. On the way back appellant waved the gun around and then continued to repeat, “Nobody slap me and live.” When the two men returned to Mae Dates’s residence, appellant asked where Bud Kelley was, and found that he was no longer there. Appellant then walked up to Henry McCain, who was sitting on a stump with a baseball glove on his hand, and said, “I’ll just blow your brains out.” Appellant aimed the gun at Henry McCain’s head, the gun fired and McCain fell to the ground.

Appellant tried to get Kenneth Kelley to take him to Birmingham but Kelley refused. Then he asked to be taken to Childers-burg, but Kelley still refused, saying that his car was “tore up.” Finally, Kelley took appellant to a bridge in Odena and left him there. On the way to the bridge appellant said that he was still going to kill Bud Kelley, that Bud was next, and that he would kill the police too.

Alvin Smith testified that he was present when the shooting occurred and earlier when the arguments between appellant and Bud Kelley and appellant and Henry McCain took place. He corroborated Kenneth Kelley’s testimony that appellant picked up a piece of wood and walked up behind Henry McCain but was prevented from hitting him by Bud Kelley. He also substantiated Mr. Kelley’s testimony that, on his return to Mae Dates’s house, appellant carried a gun in his hand. Smith testified that when appellant discovered that Bud Kelley was not there, appellant walked up to Henry McCain and said something like: “Talked that stuff ya’ll were talking a while ago. I ought to blow your brains out.” Then he shot him.

Subsequent to his arrest appellant made a statement to the police confessing that he shot Henry McCain. When the State introduced the statement for admission into evidence, a voir dire examination of Gordon Zook followed. Mr. Zook testified that he was with Lester Nicholson when appellant was arrested and that Mr. Nicholson advised appellant of his constitutional rights and questioned him about his understanding of each of those rights. Mr. Zook said that appellant signed a form stating that he fully understood each of his rights and that of his own free will he wished to make a statement. Zook stated that, although he appeared to have been drinking, appellant seemed to comprehend what was said to him and that his answers to questions were responsive to those questions.

Lester Nicholson testified on voir dire that he advised Johnnie Lee Kendrick of his constitutional rights at the time of his arrest and that appellant stated that he understood each of those rights. Nicholson testified that appellant told his story twice and that it was the same each time. Nicholson wrote down the statement the second time for appellant’s signature. Mr. Nicholson said that appellant had apparently been drinking, but that he could not be sure to what extent.

Appellant testified on voire dire that he remembered being arrested and being at the Sheriff’s Department and remembered his brother and several other people being there, but did not remember signing the statement. He said that he was not sure if he remembered making any statements to Officer Zook, or having his Miranda rights read to him. He did admit, however, that he had had his Miranda rights read to him on numerous other occasions. He further confirmed that he recalled glancing over his statement before signing it, and that everything in it was true.

Appellant testified that he did not remember getting out of the car with the gun, but did remember saying, “Don’t nobody slap me and live,” and to McCain, “Man, what’s wrong with you. You know I don’t bother nobody.” He said he guessed that after making that statement to McCain he started to walk off and the gun went off. He said he then got back in Kenneth Kelley’s car and Kenneth took him to 'some bridge where he walked for a while until he was picked up by the sheriff.

At the conclusion of the voir dire testimony appellant’s confession was admitted into evidence.

The first issue raised by appellant is whether the trial court erred in refusing to grant a mistrial because of a reference to previous warrants against appellant.

The -reference to previous warrants occurred when, on cross-examination of Mr. Zook by the defense, he was asked if he had known appellant previously. He responded that he had. He was then asked if he had previously called appellant “Hooker” (a nickname). Mr. Zook responded that he had not, then stated, “The way I’m familiar with him is that we had warrants on him before and .... ” At this point the defense objected; the objection was sustained, and the court instructed the jury to disregard the statement. The judge individually polled the jurors to determine whether they could disregard the statement and all twelve jurors responded in the affirmative.

A motion for mistrial implies a miscarriage of justice and is such a serious matter that it should be granted only where there is a fundamental error in trial which would vitiate the result. Floyd v. State, 412 So.2d 826 (Ala.Cr.App.1981); Stennett v. State, 340 So.2d 67 (Ala.Cr.App.1976); Ala.Code § 12-16-233 (1975).

In Nix v. State, 370 So.2d 1115 (Ala.Cr.App.1979), the court held that where the thrust of a prejudicial remark was indirect and the trial court ascertained from each individual juror that the remark could be and would be disregarded the judge’s actions supported a finding that any harm or prejudice against defendant was cured. Similarly, in Borden v. State, 337 So.2d 1388 (Ala.Cr.App.1976), the court held that when a trial judge sustained an objection and properly instructed the jury to disregard the matter such action was not erroneous unless the matter was of such a nature that it created ineradicable bias or prejudice.

In the case before us a reference to previous warrants was not an incurable harm to appellant. The trial court acted properly in sustaining appellant’s objection and admonishing the jury to disregard the statement. The action of the trial court in immediately giving curative instructions to the jury and individually polling jurors to determine whether each could disregard the remark was sufficient to eradicate any possible prejudice to appellant.

The second issue raised by the appellant is whether the State was entitled to cross-examine its own witness on the basis of surprise.

It is well established that whether leading questions will be allowed is within the sound discretion of the trial court and that the ruling of the trial court will not be overturned without a showing of abuse of discretion. Ervin v. State, 399 So.2d 894 (Ala.Cr.App.1981); Chambliss v. State, 373 So.2d 1185 (Ala.Cr.App.), cert. den., 373 So.2d 1211 (Ala.1979). Each case must rest upon its own particular circumstances. Blunt v. Strong, 60 Ala. 572 (1877). At the discretion of the trial judge, a party may interrogate, lead, and in effect cross-examine his own witness in order to show surprise. May v. State, 356 So.2d 772 (Ala.Cr.App.1978); Randolph v. State, 331 So.2d 766, cert. denied, 331 So.2d 771 (Ala.1976); Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959).

We have carefully reviewed the testimony of Kenneth Kelley, a witness for the State, who testified differently at trial than he had on several occasions under oath. At trial he testified that Henry McCain tried to hit appellant, whereas previously he testified that Henry McCain had never done a thing to appellant. The trial court did not err in granting the State’s request to treat Mr. Kelley as a hostile witness on the basis of surprise.

The third issue raised by appellant is whether the trial court properly refused to grant a mistrial on the basis of a reference to the “murder.” Sheriff John Dison, when asked to identify State’s Exhibit No. 6, responded: “This is a weapon that was used in the murder .... ” The defense again objected; the judge sustained the objection and polled the jurors individually regarding whether they could disregard the remark. All twelve responded that they could do so.

It is a basic premise that when prejudicial remarks have been made the trial judge is in a better position than is an appellate court to determine whether the remarks were so prejudicial as to be ineradicable. Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980), Chambers v. State, 382 So.2d 632, (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (1968). There is, moreover, a “prima facie presumption against error where the trial court immediately charges the jury to disregard the prosecutor’s remarks.” Favor v. State, at 561, quoting from Chambers v. State, supra.

We find that the trial court’s actions in this case sufficiently eradicated the prejudicial qualities of the Sheriff’s comment.

The fourth issue raised by appellant is whether a motion for mistrial was properly refused even though a reference to the “murder scene” was made by Lester Nicholson on cross-examination by the defense. The court confirmed the defense counsel’s objection to the testimony, admonished the jury that they should exclude any reference to the “murder scene” from their minds in making a decision in the case and individually questioned the jurors as to whether they could do this. All jurors answered in the affirmative. Appellant contends, however, that the cumulative prejudicial effect of references to previous warrants and to the murder was such that neither retraction nor rebuke could destroy it.

We have searched the record carefully in this case and have found no abuse of discretion by the trial judge. It is clear that the trial court was in the best position to determine whether there was a cumulative effect of remarks which was so prejudicial as to be ineradicable. Its ruling should not be disturbed on appeal absent a clear showing of abuse of discretion. Favor v. State, 389 So.2d 556 (Ala.Cr.App.1980).

The final issue raised by appellant is whether the trial court properly admitted appellant’s statement of confession into evidence. Appellant contends that the statement should not have been allowed into evidence because appellant was very intoxicated when the statement was made.

The evidence, taken on voir dire testimony, was contradictory in regard to appellant’s level of intoxication. Both Zook and Nicholson testified that appellant answered questions put to him in a responsive manner. Nicholson testified that appellant made a statement about the events surrounding the shooting twice and that the stories were the same. Zook and Nicholson noticed a smell of alcohol on appellant’s person at the time of arrest but only Zook noticed appellant stumbling.

Appellant’s testimony itself was inconsistent. He remembered being picked up, and being at the Sheriff’s Department as well as several of his relatives being there, but did not remember if his Miranda rights were read to him. He admitted that he was familiar with the Miranda rights and knew what they meant. He remembered signing one of his statements, and not the other, but admitted that everything in the statements was true.

In order for intoxication to render a confession inadmissible it must amount to a “mania” which impairs the will and mind to the extent that the person confessing is unconscious of the meaning of his words. A lesser state of intoxication, however, will not render a confession inadmissible. Palmer v. State, 401 So.2d 266 (Ala.Cr.App.1981); Tice v. State, 386 So.2d 1180 (Ala.Cr.App.1980); Willis v. State, 342 So.2d 802 (Ala.Cr.App.1976). Furthermore, in Palmer v. State, supra, the court held “[WJhere ample evidence, even though conflicting, exists from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania, the admission of a confession for a jury’s consideration is not an abuse of discretion.” Palmer, at 268. With regard to contradictory evidence at a voluntariness hearing, the court in Snider v. State, 422 So.2d 807 (Ala.Cr.App.1982), held that when conflicting evidence is presented great weight will be given to the trial court’s determination of the issue. The court in Snider also stated that the trial court’s decision will be upheld unless it “is palpably contrary to the great weight of the evidence and manifestly wrong.” Snider, at 809.

In this case there was conflicting testimony regarding the extent of appellant’s intoxication at the time he made his statement. There was, however, ample evidence from which the trial judge could conclude that the confession was voluntary, and, since the decision of the trial judge was not contrary to the great weight of the evidence, it should not be disturbed on appeal.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Loder Lowe BOWDOIN v. STATE.
    7 Div. 167.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Billy L. Church of Church, Trussell & Robinson, Pell City, for appellant.
    Charles A. Graddick, Atty. Gen., and Susan Beth Farmer, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Loder Lowe Bowdoin, was convicted of arson in the second degree and sentenced to life in prison based on the Habitual Felony Offender Act.

Bowdoin contends there was no evidence that would have corroborated the testimony of the State’s chief witness, an accomplice. The facts relied on by the State as corroborating evidence are as follows:

(1) The accomplice had on his person a key to Bowdoin’s house and a napkin with Bowdoin’s phone number when he was arrested immediately after the arson;

(2) Bowdoin and the accomplice, Graham, were seen together at the Omelet Shoppe three or four days before the fire;

(3) Graham and Bowdoin were seen to- ■ gether the day before the fire; '

(4) Mortgage payments were due on the property;

(5) The property was insured;

(6) The house was nearly empty of personal property;

(7) The property was commercially zoned and was more valuable without the house than with it;

(8) Bowdoin had expressed a desire to remove the house from the property.

McCoy v. State, 397 So.2d 577 (Ala.Cr.App.1981), contains an excellent discussion of the factors involved in this type of case, and is remarkable in its similarity to the present case. The distinguishing facts in the case sub judice are: (1) that the accomplice had a key to the house on his person when arrested rather than having disposed of the key prior to arrest; (2) the accomplice and Bowdoin were seen together in public places approximately four days before the fire and again one day before the fire; and (3) an ambiguous statement by a third party that would go to Bowdoin’s motive. At first glance, the phone number on the napkin may seem significant but, as McCoy indicates, this would amount only to an out-of-court statement by the accomplice, which could not be considered.

Generally, the fact that Bowdoin and the accomplice were seen together prior to the crime is not sufficient corroboration. Senn v. State, 344 So.2d 192 (Ala.), on remand, 344 So.2d 194 (Ala.Cr.App.1977); Caldwell v. State, 418 So.2d 168 (Ala.Cr.App.1981). Bowdoin and Graham were seen together by a police officer in an Omelet Shoppe three or four days prior to the fire. The police officer sat with them. Graham’s girlfriend then testified that she saw them together in the Grahams’ backyard the day before the fire. In this case, the circumstances surrounding the association of Bowdoin and Graham were not in themselves unusual and could not be used as corroborative evidence.

The key found in Graham’s pocket was “non accomplice evidence confirmatory of the way and manner in which the crime was committed but which is colorless and neutral insofar as appellant’s connection with the crime is concerned _” Lindhorst v. State, 346 So.2d 11, 13 (Ala.Cr.App.1977). Here, the State’s witness testified that the key was obtained for a reason totally unconnected with the arson. Graham testified, on cross examination, that he was self-employed as an exterminator, and that he had the key to Bowdoin’s house in order to spray for fleas. Based on the evidence presented at trial, the innocent nature of the possession of the key was just as probable as an inference of guilt.

“Corroborative evidence must be of a substantive character, must be inconsistent with the innocence of the defendant and do more than raise a suspicion of guilt.... Evidence which logically and rationally is as consistent with innocence as with guilt does not corroborate the testimony of an accomplice.” 397 So.2d at 588.

Lastly, the testimony by the third party regarding Bowdoin’s wish to have the house removed is also of little value to the State. Although there had been a stipulation to the effect that the property in question would be worth more without the house, the banker actually testified that it would be worth more with the house. The banker also indicated that he had a conversation with Bowdoin concerning the removal of the house. His testimony about this conversation, however, was so vague and incomplete as to provide no inference of motive. Even assuming that it did, motive and suspicion would not suffice to corroborate the accomplice’s testimony. As Judge Bowen said in McCoy, supra, at 588, “Suspicion cannot be heaped upon suspicion to create a reasonable inference of guilt.”

The judgment of the lower court is reversed.

REVERSED AND RENDERED.

All the Judges concur.


text:
    Delton Ray HARRIS v. STATE.
    7 Div. 175.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      Pope L. Moseley, Sylacauga, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Delton Ray Harris, was found guilty of the offense of burglary in the third degree and sentenced to fifteen years in the penitentiary.

Harris was detained in one of the State prison facilities at the time of trial. At the time he was escorted to the court room for his trial, the back of the shirt he was wearing had inscribed on it “Alabama Department of Corrections.” Harris contends this inscription was highly prejudicial and that several jurors observed the event.

A review of the record indicates that there is some uncertainty as to whether any jurors were present at the time Harris was in the court room. It is elementary law, of course, that an accused is presumed innocent until proved guilty and cannot be convicted on the basis of prior offenses unless one of the exceptions to that general proposition becomes relevant.

After reviewing the record, we cannot determine whether any of the jurors were present or observed the shirt of Harris. An appellate court is bound by the record and will not consider allegations of an appellant not supported by the record. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

The proper procedure would have been for Harris to request a hearing for the purpose of determining whether any of the jurors had observed the shirt. This was not done. Rather, Harris requested a continuance until the next court session. The failure of Harris to request a hearing on the matter he now complains of as being error acts as a waiver on this particular issue.. Also, no prejudice has been shown because of Harris’s wearing the shirt. Annot., 26 A.L.R.Fed. 535, 550, § 6 (1976).

The judgment of the lower court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ted Wayne CAMPBELL v. STATE.
    8 Div. 907.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      E. Steven Croomes, Athens, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James P. Hampton, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

On February 9, 1983, the Limestone County Grand Jury indicted appellant, Ted Wayne Campbell, on a charge of burglary third degree. At trial, he was found guilty as charged in the indictment, and on April 29, 1983, the trial court adjudged appellant guilty in accordance with the jury verdict. Based upon three previous felony convictions, he was found to be an habitual felony offender and was sentenced to a minimum of fifteen years in the state penitentiary.

Testimony at trial revealed that appellant was arrested by Police Officer Thomas Townsend, of the Athens Police Department, at approximately 10:00 a.m. on October 11, 1982, on a charge of public intoxica°tion. Officer Townsend had been informed that a local shoe store had been burglarized the night before, and that appellant was reported to have been in a pool hall trying to sell a pair of brown boots. Acting on this information, Officer Townsend read appellant’s Miranda rights to him immediately after making the arrest.

Appellant was placed in a patrol car, and on the way to the police station, he spontaneously confessed that he had broken into a shoe store the previous night. On reaching the police station he was again given Miranda warnings, and he again confessed to breaking into the shoe store. Two police officers took appellant to a patrol car and he directed them to the store and identified it as the one he had broken into. He then directed the police officers to a spot where some shoes were hidden.

A second interrogation took place some four hours later and appellant again admitted committing the burglary.

There was extensive testimony concerning appellant’s physical condition at the time of his arrest and statements. The police officers who arrested and questioned the appellant stated that he was intoxicated at the time and that his speech was somewhat slurred, that he staggered and was unsteady on his feet. They also testified that he recognized two of them and called them by name, that he was able to sit up, cross his legs, was coherent and responsive to questions, and that he never lost consciousness, or requested medical attention of any kind during the arrest or questioning.

Appellant testified that he was a heavy drinker and had been drinking steadily for two weeks prior to his arrest. He disclaimed any memory of his arrest or statements, but did remember hallucinating during an episode of delirium tremens while he was in jail subsequent to the arrest.

The first issue raised on appeal is whether the trial court erred in admitting evidence, in the form of certified copies of minute entries, used to enhance appellant’s punishment under the Habitual Felony Offender Statute. Alabama law is clear that such records of conviction and representation by counsel are sufficient proof of prior felonies in an habitual offender context. Gilbert v. State, 410 So.2d 473 (Ala.Cr.App.1982); Ray v. State, 398 So.2d 774, cert. denied, 398 So.2d 777 (Ala.1981); Thomas v. State, 395 So.2d 1105 (Ala.Cr.App.1981). Appellant argues that these documents failed to demonstrate that he waived his constitutional rights under the Fifth Amendment when he made the prior guilty pleas. Appellant himself, however, asserts that when a guilty plea is entered in a state criminal trial that these federal constitutional rights are thereby waived. He cites Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); and Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1964), for this proposition. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), involved a guilty plea entered by a defendant who was not represented by counsel, and is thus distinguishable from the case before us. Appellant’s contention is, therefore, without merit.

The second issue raised by appellant is whether the fifteen-year sentence he received for his conviction of burglary third degree was excessive and constituted cruel and unusual punishment under Solem v. Helm — U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

In Solem, supra, the defendant was convicted of uttering a worthless check, and, because of prior non-violent felony convictions, was sentenced to life without parole under a state recidivist statute.

In this case, appellant was convicted of third degree burglary and his three prior convictions were two for burglary second degree and one for assault with intent to murder. Appellant was sentenced to the minimum allowable term. Clearly, Alabama’s Habitual Felony Offender Statute is constitutional as applied to this appellant. Jackson v. State, 440 So.2d 1181 (Ala.Cr.App.1983), cert. denied Ala. Supreme Court November 23, 1983.

Furthermore, since there was no objection made to the introduction of the evidence of prior felonies, this issue was not properly preserved for review. Gilbert v. State, 410 So.2d 473 (Ala.Cr.App.1982).

The final issue raised by appellant is whether the evidence at trial demonstrated that he was too intoxicated at the time of his arrest to make a voluntary statement.

The evidence, taken on voir dire testimony, was inconclusive in regard to appellant’s level of intoxication. It was uncontested by the witnesses that he was intoxicated to some extent, but they reported that he was coherent, responsive to questions and did not fall over, or down, or lose consciousness. Appellant’s testimony was that he did not remember the events. He only remembered hallucinating during an episode of delirium tremens while in jail, there being a bottle of liquor in the room where he was questioned.

In Palmer v. State, 401 So.2d 266, 268 (Ala.Cr.App.1981), the court held, “[Wjhere ample evidence, even though conflicting, exists from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania, the admission of a confession for a jury's consideration is not an abuse of discretion.” In further regard to contradictory evidence at a volun-tariness hearing, the court in Snider v. State, 422 So.2d 807 (Ala.Cr.App.1982), held that when conflicting evidence is presented great weight will be given to the trial court’s determination of the issue. The Snider court also stated that the trial court’s decision will be upheld unless “palpably contrary to the great weight of the evidence and manifestly wrong.” Snider, at 809.

In order for intoxication to render a confession inadmissible it must amount to a “mania” which impairs the will and mind to the extent that the person confessing is unconscious of the meaning of his words. A lesser state of intoxication will not render a confession inadmissible. Palmer v. State, supra, Tice v. State, 386 So.2d 1180 (Ala.Cr.App.1980); Willis v. State, 342 So.2d 802 (Ala.Cr.App.1976).

In this case, although testimony regarding appellant’s level of intoxication was inconclusive, there was ample evidence from which the trial judge could conclude that the confession was voluntary. Since the decision of the trial judge was not contrary to the great weight of the evidence it should not be disturbed on appeal.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: EHRLICH, Justice. ALDERMAN, Chief Justice,

text:
    John H. ROBERSON, Petitioner, v. FLORIDA PAROLE & PROBATION COMMISSION, Respondent. FLORIDA PAROLE & PROBATION COMMISSION, Petitioner, v. DISTRICT COURT OF APPEAL, FIRST DISTRICT, State of Florida, Respondent.
    Nos. 61653, 61210.
    Supreme Court of Florida.
    Sept. 15, 1983.
    Rehearing Denied Feb. 8, 1984.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner, Roberson.
    Enoch J. Whitney, Gen. Counsel, and Catherine L. Dickson and Rosa H. Carson, Asst. Gen. Counsels, Florida Parole and Probation Com’n, Tallahassee, for. Florida Parole & Probation Com’n.
    No participation, for respondent, Dist. Court of Appeal, First Dist.
    Ronald D. Combs, Senior Staff Attorney and Richard A. Belz, Executive Director, Florida Institutional Legal Services, Inc., Gainesville, amicus curiae, on behalf of the respondent, District Court of Appeal, First District of Florida.
    Michael J. Minerva, Gen. Counsel, Dept, of Corrections, Tallahassee, for Dept, of Corrections, State of Fla., amicus curiae.
   EHRLICH, Justice.

These two cases have reached this Court via different routes. Roberson v. Florida Parole & Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981), is here for review alleging conflict with Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981). Florida Parole & Probation Commission v. District Court of Appeal, our Case No. 61,210, is an original action seeking a writ of prohibition to the First District Court of Appeal. The issue in both cases is the jurisdiction of the district court to hear administrative appeals under section 120.-68, Florida Statutes (1981), emanating from decisions affecting parole dates made by the Parole and Probation Commission (the Commission). We have jurisdiction. We hereby quash the decision in Roberson and deny the writ.

Roberson is an inmate in a Florida prison in Homestead. In October 1981 he filed a timely notice of appeal in the Third District Court of Appeal pursuant to section 120.68, Florida Statutes (1981), requesting review of the determination by the Commission of his presumptive parole release date. His grievance with the procedure concerned the use by the Commission of allegedly false information in establishing his release date. The Third District refused to hear the appeal, predicating its action on the argument' that prisoners are excluded from appealing under section 120.68, because of the language in section 120.52(10)(d), Florida Statutes (1981).

The Roberson holding directly conflicts with Daniels on the issue of jurisdiction. The First District found that it had the power to review decisions of the Parole Commission regarding parole release dates because such decisions were deemed final agency action adversely affecting the petitioners.

The petition for writ of prohibition sought by the Commission is brought to this Court to halt implementation of the First District’s decision in Daniels. The Commission in its petition propounds the argument of the Third District found persuasive in Roberson. The substance of this is that because the legislature passed section 120.52(10) prohibiting prisoners from being parties to proceedings under section 120.54(16) or 120.57, the legislature intended to preclude all prisoner actions from the purview of any part of chapter 120. Specifically, the Commission argues, appellate review under section 120.68 is not available to prisoners. We disagree.

To arrive at an understanding of this holding requires a reconstruction of legislative and judicial events. In 1974 this Court issued the seminal decision of Moore v. Florida Parole & Probation Commission, 289 So.2d 719 (Fla.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974). In that case, we found jurisdiction to review the discretionary acts of the Commission by means of the writ of mandamus. Mandamus jurisdiction was substantially changed by that decision because we removed the conceptual stumbling block that only ministerial acts were subject to review. Indeed, it was the discretionary acts of the Commission that were allegedly so abusive of the law that led this Court to broaden the scope of review.

In that same year the legislature, in an attempt to control what it termed the “shadow government,” drafted and passed into law a major revision of the Administrative Procedure Act. This so-called “shadow government,” a government of agency rules and regulations, was the natural consequence of a governmental branch that had experienced unprecedented expansion and growth. Its wide array of administrative requirements seemed to confuse and intimidate the citizenry, who apparently felt they had almost no control or voice in the actions taken by this branch. Among other things, this legislation was designed to cure the alleged ills of this “shadow government” by making the rule-making and adjudicative procedures uniform from agency to agency, by bringing the process out into the open so that citizens would be aware of how rules were made, and by allowing citizen participation in the promulgation thereof. The APA was intended to apply to all agencies unless specifically exempted under the Act. Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla.1979). Additionally, it presented a more streamlined means whereby individuals who felt that their substantial interests were being affected by agency action could challenge the agency action in administrative proceedings. This encouraged consistency and fairness, in agency action, insured by a clarified and comprehensive scheme for judicial review. Thus the light was beginning to shine on the “shadow government.”

In 1977 the First District Court of Appeal entertained and responded to the case of Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA), cert. denied, 359 So.2d 1215 (Fla.1978). Jerry was an inmate at a state correctional institution and was subjected to disciplinary confinement. He challenged under chapter 120 the rule under which he was disciplined. That court’s decision, though finding that the instant prisoner had no standing to challenge the rule, indicated that chapter 120 would apply to prisoners.

The Department of Offender Rehabilitation immediately sought an exemption from the Administration Commission under section 120.63, Florida Statutes. This was a" temporary exemption and the department then sought legislative changes. This resulted in adding to the statute the language now relied on by the Commission.

This Court’s examination of the documents and materials in the archives supports the conclusion that section 120.-52(10) does nothing more than what it says that it does: Prisoners cannot be parties to proceedings pursuant to section 120.54(16) and section 120.57. We hold that the rest of the provisions of that chapter are therefore clearly applicable to prisoners. All of the material reviewed points to this result and we will not give it a broader prohibition than truly intended.

Furthermore, following Moore, this Court laid to rest the Commission’s argument that it is a creature of the executive branch and immune to the dictates of the legislature. Owens v. State, 316 So.2d 537 (Fla.1975). Subsequently, after an extensive investigation concerning the abuse of discretion involving the granting of parole, the legislature passed the Objective Parole Guidelines Act of 1978, chapter 78-417, Laws of Florida. The intent of that act was to cure the abuses of unbridled discretion, and present a fair and objective set of standards applicable to parole matters. § 947.002, Fla.Stat. (1981).

Despite this concerted effort, abuse of discretion or misinterpretation of the law continued to creep into the process. See, e.g., McKahn v. Florida Parole & Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). The First District was constantly policing the work of the Commission either by mandamus or habeas corpus. See James v. Florida Parole & Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981); Battis v. Florida Parole & Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980).

It was therefore inevitable that the two legislative acts should meet, and they did in Daniels. With the issue squarely before the district court it was found, and correctly so, that the appellate review granted by section 120.68 was the vehicle available to review Commission determinations concerning parole made under the governmental “machinery” provided for by chapter 947. We find that decision to be a proper one.

We agree with the district court’s analysis of the application of the review power to agency action, and its entire interpretation of parties and proceedings subject to review. We adopt in full its logical rationale. (Daniels, 401 So.2d at 1352-57).

Looking beyond our own jurisdiction, we find that appellate review of parole decisions is nothing new or radical. See Foggy v. Arizona Board of Pardons & Paroles, 108 Ariz. 470, 501 P.2d 942 (1972); Willard v. Ferguson, 358 S.W.2d 516 (Ky.1962); Mastriana v. New Jersey Parole Board, 95 N.J.Super. 351, 231 A.2d 236 (1967).

We return to the wisdom of Moore wherein we said, “[wjhile there is no absolute right to parole, there is a right to a proper consideration for parole,” 289 So.2d at 720, because:

[a] prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime. No iron curtain is drawn between the Constitution and the inmates of prisons in this country. Consideration for parole is an aspect of liberty to which at least minimal due process must extend.... It has been said, government action must not only be fair, it must appear to be fair. We agree that, “one of the best procedural protections against arbitrary exercise of discretionary power lies in the requirement of findings and reasons that appear to reviewing judges to be rational.”

Phillips v. Williams, 583 P.2d 488, 490 (Okl.1978), vacated, 442 U.S. 926, 99 S.Ct. 2853, 61 L.Ed.2d 294 (1979) (quoting Monks v. New Jersey State Parole Board, 58 N.J. 238, 245, 277 A.2d 193, 196 (1971)) (footnotes omitted) (original emphasis deleted; emphasis supplied). The only way to assure a proper respect for the rights of prisoners is to insure judicial review. See, e.g., Oishi v. Florida Parole and Probation Commission, 418 So.2d 329 (Fla. 1st DCA 1982).

There should be no room for a “shadow government” in a government in the sunshine.

Accordingly, we deny the petition for writ of prohibition, quash the opinion of the district court in Roberson, and approve the opinion in Daniels.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

ALDERMAN, C.J., dissents with an opinion.

ADKINS, J., dissents.

ALDERMAN, Chief Justice,

dissenting.

I would grant the petition for writ of prohibition to the First District Court of Appeal which the majority now denies, and I would approve the Third District Court’s decision in Roberson v. Florida Parole and Probation Commission, 407 So.2d 1044 (Fla. 3d DCA 1981), which the majority disapproves.

In Roberson, the Third District correctly held that Roberson, a state prisoner claiming error in the determination of his presumptive parole release date, could not maintain an administrative appeal to the district from that determination, pursuant to section 120.68, Florida Statutes (1979).

Section 120.52(10)(d) expressly provides that prisoners defined by section 944.02(5) are not parties for purposes of proceedings under section 120.57. Section 120.57 encompasses the proceedings resulting in fixing presumptive parole release dates. If a prisoner cannot be a party for purposes of a section 120.57 proceeding, then it can only logically follow that he cannot subsequently become a party eligible to appeal under section 120.68 from the adverse ruling resulting from the proceeding setting the presumptive parole release date.

The legislature, this past session, clarified its intent relative to this issue. Its clarification is consistent with the Third District’s decision in Roberson. Chapter 83-78 specifically states that prisoners, defined in section 944.02(5), may not seek review under section 120.68 of any agency action other than proceedings under section 120.54(3), (4), (5), or (9) or section 120.56, which relate to rulemaking procedures. Chapter 83-78 further adds, “[pjarolees shall not be considered parties for purposes of agency action or judicial review when the proceedings relate to revision or revocation of parole.”

In my view, the Third District in Roberson correctly dismissed Roberson’s appeal. The First District in Daniels v. Florida Parole and Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981), erroneously concluded that section 120.68 does provide prisoners an avenue for judicial review of administrative rulings setting presumptive parole release dates.

Accordingly, I would approve the Third District’s decision in Roberson, and I would grant the Florida Parole and Probation Commission’s petition for writ of prohibition to the First District.

      . Art. V, § 3(b)(3) & art. V, § 3(b)(7), Fla. Const.

      . 120.68 Judicial review.—
      (1) A party who is adversely affected by final agency action is entitled to judicial review. For purposes of this section, a district school board, whose decision is reviewed under the provisions of s. 231.36 and whose final action is modified by a superior administrative decision, shall be a party entitled to judicial review of the final action. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

      . The pertinent part of section 120.52(10) reads as follows:
      Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(16) or s. 120.57, nor shall parolees be considered parties for these purposes when the proceedings relate to the revocation of parole.

      . Ch. 78-28, Laws of Fla.

      . Section 120.54(16) offers a party a hearing if the party’s substantial interests are not served in the normal rule-making process. Section 120.-57 offers a full panoply of procedural rights, including a hearing, in matters determining a party’s substantial interests.

      . The term “shadow government” was referred to repeatedly by members of the Subcommittee on the APA in this context. (See tape recordings of meeting of Subcommittee on the APA, Florida House of Representatives, March 29, 1978, located in Series 19, carton 410, Archives of State Library). We are aware that this is a derivative of the term “shadow cabinet” as defined in W. Safire, The New Language of Politics: An Anecdotal Dictionary of Catchwords, Slogans, and Political Usage 396-97 (1968).

      . Ch. 74-310, Laws of Fla.; ch. 120, Fla.Stat. (1974).

      . See Kennedy, A National Perspective of Administrative Law and the Florida Administrative Procedure Act, 3 Fla.St.U.L.Rev. 65 (1975); Levinson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U.Miami L.Rev. 617 (1975).

      . 120.63 Exemption from act.—
      (1) Upon application of any agency, the Administration Commission may exempt any process or proceeding governed by this act from one or more requirements of this act:

      (2)(b) An exemption and any alternative procedure prescribed shall terminate 90 days following adjournment sine die of the then-current or next regular legislative session after issuance of the exemption order, or upon the effective date of any subsequent legislation incorporating the exemption or any partial exemption related thereto, whichever is earlier. The exemption granted by the commission shall be renewable upon the same or similar facts not more than once. Such renewal shall terminate as would an original exemption.

        . See Staff Analysis, H.B. 420, Governmental Operations Committee, House of Representatives, dated March 3, 1978. We have gleaned the legislative intent from the bill files and tape recordings (Mar. 29, Apr. 5, 1978) of the meetings of the House Governmental Operations Committee and the Subcommittee on the APA, Series 19, Carton 410, Archives of State Library. H.B. 420 and S.B. 209 were companion measures introduced during the 1978 session. They were considerably broader in scope as to excluding prisoners from the purview of the APA, proposing:
      Prisoners as defined in s. 944.02(5) shall not be considered parties for the purposes of obtaining proceedings under s. 120.54(3)-(6) or (16), s. 120.56, or s. 120.57.
      Those parts underscored did not pass. The House bill was significantly amended on the floor of the House. The Senate measure went to conference. It appears evident that neither body intended a broad exclusion from Chapter 120.

      . HB 420 and SB 209 also limited the rule-making process as to prisoners, affording them only the opportunity to submit written statements as to rules. Section 120.54(3) was amended by chapter 78-28, Laws of Fla., by the addition of the following:
      Prisoners, as defined in s. 944.02(5), may be limited by the Department of Corrections to an opportunity to submit written statements concerning intended action on any department rule.

      . House of Representatives Committee on Corrections, Oversight Report: The Florida Parole and Probation Commission, May 1978.

      . We recognize the import of the new law, Chapter 83-78, Laws of Florida, discussed in Chief Justice Alderman’s dissent, but we decline to impute the intent of this current legislature in its most recent session to the legislatures which preceded it and enacted the laws this opinion interprets.