source: Caselaw Access Project

author: PER CURIAM. BEATTY, Justice

license: Public Domain

text:
    Charles A. GRADDICK, as Attorney General of the State of Alabama, etc. v. ALABAMA PUBLIC SERVICE COMMISSION and Alabama Gas Corporation.
    82-457.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    Charles A. Graddick, Atty. Gen., and Charles A. Guyton, Asst. Atty. Gen., and Wendall Cauley of Johnson & Thorington, Montgomery, for appellant.
    Thomas L. Stewart and Michael G. Kendrick of Gorham, Waldrep, Stewart & Kendrick, Birmingham, for appellee Alabama Public Service Commission.
    William Michael Warren, Jr. and Haydn M. Trechsel of Bradley, Arant, Rose & White, Birmingham, of Robert C. Black for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and Alex S. Lacy, Birmingham, for appellee Alabama Gas Corp.
    Jack Shreve, Tallahassee, Fla., for amicus curiae Nat. Assoc, of State Utility Consumer Advocates.
   PER CURIAM.

Affirmed on authority of Alabama Metallurgical Corp. v. Alabama Public Service Commission, 441 So.2d 565 (1983).

AFFIRMED.

All the Justices concur except BEATTY, J., who dissents.

BEATTY, Justice

(dissenting):

This is a direct appeal by Charles A. Graddick, as Attorney General of the State of Alabama, pursuant to Code of 1975, § 37-1-140. The appeal is taken on behalf of the State and the affected customers of Alabama Gas Corporation (Alabama Gas or the Company) challenging orders of the Alabama Public Service Commission (the Commission) dated January 25 and 27,1983, in APSC Dockets 18046, 18328, and 18622. These three rate proceedings were initiated by Alabama Gas, and APSC Dockets 18046 and 18328 were the basis of previous appeals to this Court, Supreme Court Case Nos. 80-686 and 81-804, respectively. The orders from which this appeal originates provide the purported resolution by settlement of these two appeals which were taken by Alabama Gas from the Commission’s original orders in 1980 and 1981.

This Court released its opinion and order in Case No. 80-686 on November 5, 1982 (Alabama Gas Corporation v. Alabama Public Service Commission, 425 So.2d 430 (Ala. 1982)), in which the Court reversed and remanded to the Commission with instruction the Commission’s order in Docket 18046. The Commission then notified the parties to the two rate cases that it would call them to public discussion for the purpose of attempting to settle the remanded cases (Docket 18046, Supreme Court No. 80-686) and the case then pending before the Court (Docket 18328, Supreme Court No. 81-804).

Petitions for intervention were received from the Attorney General of the State of Alabama; Mr. John Ripp; and Clara Hall, Luvenia Blevins, and Bessie Trimble, represented by Legal Services Corporation of Alabama. The above were determined to be affected by these proceedings pursuant to Code of 1975, § 37-1-87, and were permitted to intervene. Following five days of proceedings held between December 13, 1982, and January 13, 1983, the Commission agreed with Alabama Gas to resolve the pending cases according to the following terms:

“(a) The final and legal rates would be found by reducing the rates which had been approved to collect the $14 million increase in revenue which the Court had permitted, subject to supersedeas bond, by $1.5 million effective from July 4, 1982 — a $12.5 million increase;
“(b) The Company would refund to its customers by check the total sum of rates collected in excess of the $12.5 million rate increase level (i.e., pursuant to the Court’s supersedeas order), and pipeline supplier refunds of approximately $13 million then being held by the Company in constructive trust for its customers, less the cost to the Company of making the refund;
“(c) The Company would compute its depreciation expense on its books and records in accordance with the depreciation rates by plant account developed by the Public Staff’s witness in Docket 18328 using the remaining life methodology and estimated net salvage; and
“(d) Commencing with bills dated October 1, 1983, the Company’s rates and charges would be changed, if necessary, pursuant to the formula of the ‘Rate Stabilization and Equalization Factors (RSE).’ The Company is not to file any new general rate increase application pri- or to January 1, 1985.” (Footnote omitted.)

The purpose of the orders was to rectify the Company’s revenue deficiencies proved in Dockets 18046 and 18328 and to provide prospective regulations. The Commission and the Company reached the settlement without agreement by any of the interve-nors. In fact, each intervenor stated concerns and objections respecting the propriety of the Rate Stabilization and Equalization Factors (RSE) for setting rates and charges of Alabama Gas.

On February 17,1983, the Attorney General filed his notice of appeal from the Commission’s orders of January 25 and 27, 1983. The appeal alleges that the orders approving RSE as the vehicle for changing the Company’s rates are void.

A joint motion was then filed with this Court seeking to remand the case for the limited purpose of allowing the Commission to order the refund portion of the Commission’s January 25, 1983, order to proceed. This Court, granting remand on March 31, 1983, ordered “that the appeal of Charles A. Graddick, as Attorney General, as it relates to the rate RSE portion of the order of the Alabama Public Service Commission of January 25, 1983, shall proceed.”

I emphasize the fact that this case does not come before this Court in the usual posture of a rate case. It is clear that the Attorney General neither contends that the Company’s present charges are unfair and unreasonable, nor does he argue that the increase in revenues allowed here is excessive or not supported by the law of evidence. Because of this unusual posture, this Court is not concerned with the validity of the RSE or with the fairness or reasonableness of the rates in the present cases. Perhaps RSE is in fact or is substantially similar in operation to an automatic adjustment clause. Its purpose is to provide for periodic limited adjustments (increases or decreases) to the Company’s charges for gas service. The validity of the RSE as a formula for determining fair and reasonable rates, however, is not in issue here. Instead, the sole issue presented for review by this Court is the propriety of the Commission’s promulgation of the RSE.

More specifically, the Attorney General raises the following issues on appeal:

1. Whether the adoption of the RSE is within the Commission’s statutory authority-

2. Whether the adoption of the RSE violates the intervenors’ right to due process regarding investigation, notice, and hearings.

3. Whether the Commission’s order promulgating the RSE is based upon the record evidence.

4. Whether the Attorney General’s appeal herein presents a justiciable controversy ripe for decision by this Court.

I

The dispositive issue presented for review by this Court is whether the Commission exceeded its statutory authority in its adoption of the RSE. The Commission has only such power and authority as is clearly conferred by statute. Alabama Great Southern Railroad Co. v. Alabama Public Service Commission, 210 Ala. 151, 97 So. 226, 228 (1923); Railway Express Agency v. Alabama Public Service Commission, 265 Ala. 369, 91 So.2d 489, 491 (1956); Boswell v. Whatley, 345 So.2d 1324 (Ala.1977); Alabama Power Co. v. Alabama Public Service Commission, 421 So.2d 1260, 1262 (Ala. 1982). Further, the authority and power of the Commission must be sought in the statutes alone and these statutes must be strictly construed since the Commission is a statutory creation. Id. “This means simply that' the Public Service Commission can assume only such powers and exercise only such prerogatives as are clearly granted to it by the Legislature, and that its authority will not be extended by doubtful inference or intendment.” Alabama Great Southern Railroad Co., supra, 210 Ala. at 153, 97 So. at 228.

This Court held in Boswell v. Whatley, 345 So.2d 1324 (Ala.1977), that orders of the Commission which attempt to circumscribe or abrogate legislative directions are void. Thus, when the Commission undertakes to act in a fashion not envisioned in its statutory prescription of powers, its action is void and without effect. More clearly stated, a Commission order which is unauthorized by law or without or in excess of legal authority is void. Railroad Commission v. Alabama Great Southern Railroad Co., 185 Ala. 354, 359, 64 So. 13, 15 (1913); Alabama Great Southern Railroad Co., supra, 210 Ala. at 152-53, 97 So. at 227.

Having emphasized that the Commission must follow its legislative mandate, this Court must look to Code of 1975, § 37-1-80 through § 37-1-105, entitled “Rates and Other Regulations,” to determine if the RSE falls within the statutes as contemplated by the legislature. Specifically, § 37-1-81 sets out a procedural scheme to be followed by a utility seeking to change existing rates. Section 37-1-81 reads as follows:

“(a) Whenever a utility desires to put in operation a new rate or service regulation or to change any existing rate or service regulation, it shall file with the commission a new schedule embodying the same, not less than 30 days prior to the time it desires to make the same effective; but the commission may, upon application of the utility, prescribe a less time within which the same may be made effective. In the absence of suspension or disapproval by the commission, as herein provided, the new rate or service regulation embodied in any such new schedule shall become effective at the time specified in such schedule, subject however to the power of the commission at any time thereafter to take any action respecting the same authorized by this title.
“(b) To enable it to make such investigation as, in its opinion, the public interest requires, the commission, in its discretion, for a period not exceeding six months may suspend the operation of any new schedule of rates or service regulations filed with the commission. Unless as a result of its investigation the commission otherwise orders before the termination of such period of six months, such rate or service regulation shall thereupon become effective. The Commission may make any order in the premises which it is authorized by any of the provisions of this title to make in any investigation or complaint or on its own motion without complaint.”

The Attorney General contends that the RSE method of setting natural gas utility rates is similar to that provided by statute for “new statutory findings,” but that it is not the statutory procedure and it differs in at least three fatal respects. He spells out the following in brief:

“First, § 37-1-81 Code, provides that ‘[wjhenever a utility desires to put in operation a new rate or service regulation or to change any existing rate or service regulation, it shall file with the commission a new schedule embodying the same, not less than 30 days prior to the time it desires to make the same effective.’ (Emphasis supplied.) The Commission in its Order asserts that ‘Rate RSE’ is an improved procedure for changing rates, but ‘Rate RSE’ does not require the filing of a new schedule embodying the changes in existing rates that it effects not less than 30 days prior to the time that the same are effective as required by § 37-1-81, Code.
“Second, when a utility applies under § 37-1-81, Code, to change its existing rates, the Commission must exercise its discretion whether: i.) if the utility has requested that the proposed changes in existing rates take effect in less than 30 days’ time, to approve such request; ii.) to allow the requested changes to take effect without any action or interference by the Commission (i.e., thirty days after the filing); or iii.) to suspend the requested changes in rates for a period up to six months so that the Commission may conduct an investigation. These decisions reasonably can be made only at the time that the application is filed to change existing rates. State ex rel. Consumers Council v. Public Service Commission, 585 S.W.2d 41 (Mo.1979); State ex rel. Missouri Water Co. v. Public Service Commission, 308 S.W.2d 704 (Mo.1957). Under the ‘Rate RSE’ procedure the Commission has bargained away the option to use its discretion in accord with the statutory scheme. It has already committed respecting each quarterly change in rates: i.) to permit the changes to be filed less than thirty days prior to the time they are to take effect (i.e., ‘no less than 28 days'); ii.) to allow the proposed changes to become operative without interference by the Commission; and iii.) not to suspend the requested changes in rates in order to conduct an investigation.
“Thirdly, focusing on the provision in § 37-l-81(b) that provides that ‘to enable it to make such investigation as, in its opinion, the public interest requires, the Commission, in its discretion, for a period not exceeding six months may suspend the operation of any new schedule of rates or service regulations filed with the commission,’ the Company and Commission are aware that ‘Rate RSE’ reversed the ‘suspend and investigate’ order established in the statute and substitutes an automatic ‘change, investigate and refund’ scenario in its place. The Company’s awareness of the reversal of the statutory order is betrayed in a footnote in its brief:
“ ‘Although the Special Rules do not provide for suspension of the operation of Rate RSE, the Commission, following either plenary or limited proceedings, may order an adjustment to compensate customers for temporary charges in excess of those properly determined pursuant to Rate RSE. The availability of this compensation adjustment is, in essence, substantially similar to the Commission’s statutory ability to suspend the effective date of statutory rate filings.’ Company’s brief 56. (Emphasis supplied.)”

This Court has held that neither the Commission nor the courts, in the ratemaking process, have any liberty to ignore the standards set up by the legislature or to substitute a formula of their own, however meritorious (or easier) such formula may be. Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 268 Ala. 312, 106 So.2d 163 (1958).

The Company and the Commission cite Code of 1975, §§ 37-1-31 and 37-1-32, as providing the Commission the exclusive rights, powers, authority, jurisdiction, and duties with respect to rates and service regulations by public utilities. Further, they contend that § 37-1-56 authorizes the Commission to “prescribe such changes in the form in which the schedules and service regulations are issued by any utility as may be found to be expedient.” Section 37-1-56. They contend that these statutes clearly vest the Commission with very broad jurisdictional powers and authority to regulate public utilities. I find no fault with this conclusion and agree wholeheartedly as far as it goes. However, I cannot agree that these statutes, which provide the general obligation of regulatory authority, provide the Commission the authority to adopt the RSE in violation of the legislatively mandated procedures for rate change regulations as spelled out in § 37-1-81.

As stated earlier, the Commission is of statutory creation and the statutes alone prescribe its authority and powers. The Commission may not ignore or repudiate that scheme, for that statutory scheme is the Commission’s only grant of authority to establish utility rates. Wichita Railroad & Light Co. v. Public Utilities Commission of the State of Kansas, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124 (1922).

There is much discussion by the Company and the Commission in brief as to how fair and reasonable the RSE is in its formula for the adjustment of utility rates. Further, much is said regarding the effectiveness of the RSE and similar “adjustment clauses” in other states. But the question of fair and reasonable rates is not at issue here. It may or may not be true that the RSE is the answer to the problems facing the Commission with regard to utility regulations. However, the legislature by statute has provided the scheme that the Commission must follow in adopting utility rate changes. The RSE does not comply with the procedures which have been prescribed. Therefore, I conclude that in adopting the RSE the Commission has exceeded the statutory authority granted it by the legislature. Authority to allow such a deviation from the procedures which must be followed when the Commission faces requested rate changes must come from the legislature. It is not for this Court, nor for the Commission itself, to legislate in extending the authority provided by statute when the language and intent of that statute is clear. The orders issued by the Commission on January 25 and 27, 1983, establishing the RSE as the formula to provide for future rate changes for Alabama Gas are therefore void.

II

Although the Commission’s January 25 and 27,1983, orders are void with regard to their adoption of the RSE, it is appropriate also to discuss the other issues raised by the Attorney General.

Whether the adoption of RSE violates the due process of the intervenors regarding investigations, notice, and hearings certainly merits comment. The Attorney General’s contentions that, the intervenors’ rights to notice and hearings were violated in the adoption of RSE on January 25, 1983, are correct, and moreover, the prospective operation of the RSE will violate statutory provisions of due process. It is elementary that due process requires that all parties be given notice and an opportunity to be heard.

“When the rate making agency of the State gives a fair hearing, receives and considers the competent evidence that is offered, affords opportunity through evidence and argument to challenge the result, and makes its determination upon evidence and not arbitrarily, the requirements of procedural due process are met....” Railroad Commission of California v. Pacific Gas & Electric Company, 302 U.S. 388, 393, 58 S.Ct. 334, 338, 82 L.Ed. 319, 323 (1938).

That was not the case in the present proceedings.

Appellees assert that there was adequate notice to the Attorney General and the public of the settlement meetings and the topics, specifically RSE, under consideration. However, the December 7, 1982, notice sent by the Commission in relation to the settlement meetings stated that “[t]he purpose of the hearing is to take testimony and evidence as necessary in both cases in order to effect a settlement of all matters involved.” There was no mention of the fact that RSE would be discussed as a settlement strategy.

Next, appellees contend that all interve-nors were completely familiar with the RSE concept because they had participated for several months in hearings concerning the Alabama Power Company in which the RSE was adopted. As to whether the interve-nors “should have known” or were completely aware of RSE due to the adoption of the RSE in the Alabama Power Company case is not at issue. The intervenors were first informed of the RSE as a possible settlement strategy in this case on the first day, December 13, of five days of hearings. Through the full two-year course of the two cases, no notice was given that RSE would be considered. On December 14, the second day of settlement talks, the following statement of the Attorney General was quoted by his representative at the outset of the hearing:

“[W]e have talked with the Attorney General. He has indicated to us that he did not wish for us to pursue a rate RSE type resolution in the case and we really have no option but to not participate in that type of resolution in this case.” (Emphasis added.)

Thus, the Attorney General’s statements during the hearing support his contention of nonparticipation and objection to the adoption of RSE. The Attorney General goes on to express his concerns as specified in his brief to this Court:

“Further, in response to the request of this Court that the Attorney General express his position respecting the Company’s and Commission’s request that S.C. Case No. 81-804 (APSC Docket No. 18328) be remanded to the Commission for the entry of an order upon stipulation and agreement, the Attorney General responded, in correspondence that was sent to all parties, that he was not a party to the motion for remand, or the stipulation and agreement, and that he was opposed to ‘Rate RSE.’ That response, in pertinent part, was as follows:
“ ‘We have no objection to a remand for the purpose of entering an order founded on the evidence and within the Commission’s authority.
“ ‘But, we must speak to the proposed settlement agreement which the Joint Motion indicates will be entered upon remand. Paragraph 4 of the ‘Settlement Agreement’ provides as follows:
“ ‘ “4. That the Rate Stabilization and Equalization Factors (RSE) provision of the Company’s Tariff attached hereto shall become effective on the date that a final order is signed in this case. The first change of rates, if necessary, will be effective with bills dated October 1,1983. The Company shall immediately file with the Commission tariff sheets containing the RSE when a final order is signed.”
“ ‘The Attorney General believes the Rate Stabilization and Equalization Factors (RSE) provision to be not a rate, but a comprehensive automatic adjustment clause which the Commission is without authority to approve. The RSE provision, if approved, will function to alter the Company’s rates without the filing of new tariffs, without the Commission exercising any discretion at the time of the changes in rates whether to suspend the operation of such altered rates and charges to permit an investigation of their reasonableness and fairness, and in the absence of the filing of a complaint by an affected party, without a hearing. Consequently, if upon remand, the Commission approves new tariffs embodying the so-called Rate Stabilization and Equalization Factors (RSE) provision, the Attorney General probably will take an appeal from such order.
“ ‘Please let me know if you need any further response.’
“Attorney General’s letter to Dorothy F. Norwood, Acting Clerk, January 21, 1983.”

Based on the preceding discussion, there was no adequate notice and participation affording the intervenors due process in the adoption of RSE. Additionally, it is difficult to recognize that a settlement was in fact reached when it is clear that the inter-venors were not parties to the stipulation and agreement. A review of the record further indicates a lack of the presentation of evidence to support appellees’ contention that the adoption of RSE was based on record evidence. This will be discussed later in my opinion.

Finally, with regard to due process as a concern for the prospective operation of RSE, I will not attempt to discuss the detailed operations of RSE. I do note as mentioned earlier in this opinion that RSE reverses the suspend and investigate order established in § 37-l-81(b) and substitutes instead an automatic change, investigate, and refund scenario in its place.

The Company and the Commission cite Choctaw County v. Alabama Public Service Commission, 368 So.2d 280 (Ala.1979), which says that no hearing is required prior to a new rate taking effect, but the Commission must investígate and provide a full, fair, and public hearing only when a rate filing is suspended. I recognize that whether to suspend a rate filing is clearly within the discretion of the legislature. However, it has been held that the consideration of whether to suspend filed rates should include a review of all relevant factors. See State ex rel. Utility Consumers Council v. Public Service Commission, 585 S.W.2d 41 (Mo.1979); State ex rel. Missouri Water Co. v. Public Service Commission, 308 S.W.2d 704, 718-720 (Mo.1957). Similarly, a preference has been stated for suspension and rate ease hearings according to these two cases. This has certainly been the preferred and consistent course of action taken by this Commission in the past in regard to general rate increases.

When the Commission does suspend filed rates, as it did in the present cases involved in this appeal and as it has done in other general rate increases, the Commission must investigate. In such an investigation, the burden of proof is on the utility. Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 47 So.2d 455 (1950). The concern of the intervenors is that an adoption of RSE will in effect shift the burden of proof to those persons who find themselves affected by these automatic rate changes. That position is well taken. Those parties who were intervenors in past rate cases must now come in as complainants, and the burden of proof rests with them instead of with the utility.

Under the prior practice, following a suspension of the filing, an investigation followed. As stated by the Attorney General, in brief, at that point:

“Any person affected may intervene, and the right to intervene and be heard may not be abridged. § 37-1-87, Code; Choctaw County v. APSC, 368 So.2d 280 (Ala. 1979); Mobile County Gas District v. Mobile Gas Service Corp., 284 Ala. 664, 227 So.2d 565 (1969). Provision is made for discovery. §§ 37-1-82, -92, Code. The Commission must give at least ten days’ notice of hearings, and all parties shall be entitled to be heard and to subpoena witnesses. § 37-1-86, Code. A full and complete record of the proceedings must be taken. § 37-1-102, Code. The Commission may make no order affecting any rate until a public hearing has been held. § 37-1-96, Code. The Commission must reach its decision on the evidence in the record before it. Alabama Power Co. v. APSC, 390 So.2d 1017. (Ala.1980). The question of what constitutes just and reasonable rates must be determined by exercising fair, enlightened and independent judgment in light of the relevant facts. Birmingham Electric Co. v. APSC, 254 Ala. 119, 47 So.2d 449 (1950). When the Commission determines an existing rate to be unreasonable, it shall by order fix, to the extent it is within its power to do so, a reasonable rate, fare or charge, and no utility may change the rate, fare, or charge so fixed without the approval of the Commission. 37-1-97, Code.” (Emphasis in original.)

This statutory scheme has been consistently utilized in providing for rate changes in the past, and RSE represents a departure which will not only shift the burden of proof in the proceedings but will also severely curb public input.

Ill

The next issue is whether there was record evidence to support the adoption of RSE. The Company’s and the Commission’s contention that there was record evidence cannot be accepted for two reasons. First, the record reflects that during the hearings no witnesses were called to present evidence or to be cross-examined on the concept of RSE. And, as stated earlier, through the full two-year course of the two cases, no notice was given or evidence taken with regard to RSE. Next, during these settlement hearings and the adoption of RSE, the administrative judge was without jurisdiction to take such evidence. This argument is borne out by the statements of the administrative judge himself at the outset of the December 13, 1982, conference:

“Let me hasten to add before we get started, we realize that these cases are now pending before the Supreme Court. All parties know that the Court remanded 18046 to the Commission November 5, of this year. But, shortly after that, there was a petition, I believe, with the Court for reconsideration, which I would assume, but even that case is back before the Court. So, we — as I say, we realize they are before the Court.
“The notice mentioned taking further testimony and evidence. Of course we won’t attempt to do that today, but, if we are successful in arriving at an agreement, then it would naturally follow as I would envision it that a petition would go to the Court for a remand of both cases, and that then it might be necessary to take testimony and put evidence in the record or make a record, so that was the purpose of the hearing notice. Let’s for the purposes of the record this morning, take appearances at this time.”

Accordingly, the adoption of the RSE was not based on record evidence in this case.

In conclusion, the Public Service Commission has exceeded its legislative mandate in its adoption of the RSE. If the Commission’s position is, indeed, the proper method of present and future rate determinations, then the legislature might, perhaps, consider ways and means by which competitive rate forces are brought to bear on behalf of the consumer as an equalizing factor. I recognize and understand the desire of the Commission to simplify the procedures for changes in rates by utilities. But it is not for this Court, on the other hand, to affirm an order adopting a scheme for regulating changes in rates that is clearly not within the contemplation of the legislature. That the majority of this Court has seen fit to do so represents a departure from the basic order of our state government.


author: PER CURIAM. JONES, Justice

text:
    Ex parte Mildred Elizabeth LIETE. (In re: Mildred Elizabeth Liete v. State of Alabama).
    82-990.
    Supreme Court of Alabama.
    Nov. 10, 1983.
    James M. Byrd, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ger-rilyn V. Grant, Asst. Atty. Gen., for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

TORBERT, C.J., and MADDOX, AL-MON, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur.

FAULKNER and JONES, JJ., concur specially.

JONES, Justice

(concurring specially).

I have agreed, with some reluctance, to quash the writ; but I feel constrained to write separately to clarify the mandate of the Youthful Offender Act: Code 1975, § 15-19-1.

Defendant’s conviction of first degree robbery and sentence to 20 years’ imprisonment were affirmed without opinion by the Court of Criminal Appeals, 434 So.2d 874. We granted the petition for writ of certio-rari to review that court’s ruling with respect to the propriety of the trial court’s denial to Defendant Mildred Elizabeth Leite of “youthful offender” status.

In February 1982, a Mobile County Grand Jury charged Defendant-with “theft of miscellaneous jewelry ... while ... armed with a deadly weapon, to-wit: a gun .... ” Defendant requested treatment as a “youthful offender.” An investigation was made into her background by a probation officer. At a special hearing before trial, at which Defendant and her counsel, Mr. Box, appeared, the trial judge stated:

“Mr. Box, as I have previously advised you, I have read the Youthful Offender report in this case. I have considered this in view of the prior trial of the accomplice involved in this, and I am denying her request for Youthful Offender status.”

Because this is all that is reflected by the record concerning that hearing (other than a conversation among the judge and respective counsel relating to a setting of the case for trial), I have concurred with the Court’s conclusion that the statutory requisite for an investigation and examination of Defendant has been satisfied. Apparently, the appellate court concluded likewise.

Section 15-19-1, reads:

“(a) A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall, and, if charged with a lesser crime may, be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him. If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as provided in subsection (b) of this section.
“(b) After such investigation and examination, the court, in its discretion, may direct that the defendant be arraigned as a youthful offender, and no further action shall be taken on the indictment or information; or the court may decide that the defendant shall not be arraigned as a youthful offender, whereupon the indictment or information shall be deemed filed.”

Defendant’s argument may be summarized as follows: 1) Section 15-19-1 mandates both an investigation and examination of Defendant by the trial court prior to any resolution of “youthful offender” status; and 2) despite his consideration of the probation officer’s report before denying Defendant such status, the trial judge should have conducted some examination of Defendant prior to his decision. We agree; and, if we concluded from the record that no examination of Defendant occurred, we would remand this cause for an appropriate examination and determination of “youthful offender” status.

In Watkins v. State, 357 So.2d 156 (Ala.Cr.App.1977), we find the following:

“The Youthful Offender Act does not require a full, formal hearing or an investigation and examination of the defendant by a probation officer in every case.
“ ‘All that is required of the trial court, ... is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.’ Clemmons v. State, 294 Ala. 746, 749, 321 So.2d 238, 241 (1975).
“Thus some investigation and examination of the appellant by the trial judge must be conducted before the request for youthful offender treatment can be lawfully denied. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975). This examination need not be lengthy or formal and need not proceed under any prescribed form.
“ ‘The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof — all of which can be ascertained without a lengthy, time consuming investigation by the probation officer.’ Clemmons, supra, 294 Ala. 749, 321 So.2d 241.”

Justice Shores, speaking for this Court in Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975), articulated the following analysis:

“While our statute seems to require an investigation in certain cases, we do not read it to require the trial court to order an investigation by a probation officer in every case. In fact, § 266(5) of Tit. 15 places a duty on the probation officers to make such investigations as requested by the court. We read this to mean that referral to the probation officer for an investigation is a discretionary matter with the trial court, not mandatory as Morgan v. State [291 Ala. 764, 287 So.2d 914 (1973) ] seems to suggest.
“As we read the statute, the requirement that an investigation be made means only that the trial court should conduct or order such investigation as is necessary in each case, including an investigation by the probation officer, if it sees fit, but not necessarily, for the development of such facts as are required for a determination of whether the defendant is eligible for youthful offender treatment.
“Obviously, the court will not require an investigation by a probation officer in every case. In many cases, sufficient facts for a determination will be available without a probation officer’s report.
“The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof — all of which can be ascertained without a lengthy, time consuming investigation by the probation officer.
“We do not believe the legislature intended that each case must be referred to a probation officer for an investigation. Nor do we read the statute to require a full, formal hearing in every case. All that is required of the trial court, assuming the defendant consents, is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.
“... [T]he trial judge should initiate such investigation as he deems necessary. Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed in the murder case should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.”

Acknowledging the fact that a probationary report is not required in every instance of “youthful offender” determination, Clemmons, supra, we cannot accede to the argument of the State, that consideration of such a report by the trial judge, thereafter, obviates any need for further investigation and oral examination of Defendant by the court. Stated simply, while the probationary report is discretionary, the investigation and the oral examination are not.

The scope of such investigation and examination, while discretionary with the trial judge, should at least be reasonable under all the circumstances. While no specific length or depth of analysis is required, both the letter and the spirit of the Youthful Offender Act are defeated, if, as Defendant asserts, given her consent, she was not “examined by the court to determine whether [she] should be tried as a youthful offender.” The Court is of the opinion, however, that the trial court’s exercise of its discretion denying Defendant “youthful offender” status was made in the context of some degree of examination as contemplated by the statute.

FAULKNER, J., concurs.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. CHESEBROUGH-PONDS, INC.
    Civ. 3414.
    Court of Civil Appeals of Alabama.
    Jan. 12, 1983.
    Rehearing Denied Feb. 16, 1983.
    Charles A. Graddick, Atty. Gen., and Bill Thompson, Asst. Counsel, State Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Robert C. Walthall of Bradley, Arant, Rose & White, Birmingham, for appellee.
    E.T. Brown, Jr. and Roy J. Crawford, of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Coca-Cola Co.
   WRIGHT, Presiding Judge.

This is a corporate income tax case.

In 1978 Chesebrough-Ponds, Inc., was a foreign corporation doing business in Alabama. It joined with its fifteen subsidiaries in filing a consolidated federal income tax return for that year, but filed a separate return with Alabama (Alabama does not allow for consolidated returns). Section 40-18-35(3), Code of Alabama 1975 allows as a deduction from state income tax an amount of the total federal income tax paid or accrued by a foreign corporation doing business in Alabama. The amount of federal income tax deductible by such foreign corporation is determined by the following ratio:

In the case of a foreign corporation which files as part of a consolidated group for federal purposes, before the above apportionment ratio is applied, the group’s federal tax liability must be allocated among the individual corporations in the group. The allocation of the federal tax among the individual corporations is controlled by 26 U.S.C.A. § 1552 (West 1982), as adopted by Alabama Income Tax Regulation 35.2.

Chesebrough-Ponds followed regulation 35.2 in allocating to itself $13,130,566.00 of federal tax liability for 1978. The allocation calculation is not in dispute. The amount claimed as a deduction from Alabama income tax was then determined by the application of the apportionment ratio set out in § 40-18-35(3), Code 1975. In computing its deduction, Chesebrough-Ponds did not include in the denominator of the ratio intercompany dividends paid to it by its subsidiary corporations. The omission of those dividends resulted in a smaller denominator in the ratio, and therefore a larger deduction, than would have resulted had they been included. The Alabama State Department of Revenue took the position that the intercompany dividends should have been included in the apportionment ratio and therefore disallowed Che-sebrough-Ponds’ calculation and entered the assessment now in issue. The amount of tax in dispute is $31,617.00.

Chesebrough-Ponds appealed the Revenue Department’s final assessment to the Montgomery County Circuit Court under § 40-2-22 of the Code. The lower court entered a decree in favor of Chesebrough-Ponds on July 7, 1982. The Revenue Department appeals that decision.

The sole issue on appeal is whether intercompany dividends received by a foreign parent corporation from a subsidiary not domiciled in Alabama should be included as “net income ... from business done both within and without the State of Alabama” for purposes of determining the amount of the deduction from net income of federal income taxes paid as provided in § 40-18-35(3), Code 1975. The issue is one of first impression, and the consideration of this appeal necessarily involves judicial interpretation of § 40-18-35, Code 1975, and related statutes.

“Net income from business done both within and without the state” is not defined in the Code; “net income,” however, is defined. The Revenue Department contends that since intercompany dividends are net income for income tax purposes, they should be included in the denominator of the apportionment ratio. Chesebrough-Ponds contends that “net income from business done” is a more specific term than “net income.” The trial court agreed with Che-sebrough-Ponds and ruled that although “net income from business done” is not defined in the Code, it is a similar concept to “business income,” which is defined in Alabama Tax Regulation 31.2: “As used in this regulation, unless the context otherwise requires: (a) ‘Business income’ means income arising from transactions and activity in the regular course of the taxpayer’s trade or business.... ” The regulation also states that dividend income is non-business income, when dealing in securities is not the principal business activity of the taxpayer.

The Revenue Department contends that “business income” is a term limited in application to the specific purpose of Regulation 31.2; that is, geographically locating a parent corporation’s income according to its source — to apportion it to the contributing subsidiary. The Revenue Department contends that the purpose of Regulation 31.2 is not to classify an item as taxable or not taxable, but simply to locate it in a particular state.

The definition of “business income” in Regulation 31.2 is a verbatim restatement of the definition of that term in the Multi-state Tax Compact, § 40-27-1, Code 1975. The stated purposes of the tax compact are to:

“1. Facilitate proper determination of state and local tax liability of multi-state taxpayers, including the equitable apportionment of tax bases and settlement of apportionment disputes.
2. Promote uniformity or compatibility in significant components of tax systems.
3. Facilitate taxpayer convenience and compliance in the filing of tax returns and in other phases of tax administration.
4. Avoid duplicative taxation.”

“Business income” and “net income from business done” are very similar terms; their similarity is even greater in the light of the language of Article IV, paragraph 2 of the Multistate Tax Compact: “Any taxpayer having income from business activity which is taxable both within and without this state ... shall allocate and apportion his net income as provided in this article.” § 40-27-1, Code 1975.

We consider that the legislature intended that “net income from business done” should mean something more than just “net income.” We cannot presume that the legislature has used language without any meaning or application. Wright v. Cutler-Hammer, Inc., 358 So.2d 444 (Ala.1978). To determine what the legislature meant by the term “net income from business done,” it is proper to look at other sections of the income tax law. Sections of the Code which deal with the same subject matter are in pari materia and should be construed together to ascertain their meaning and intent. Locke v. Wheat, 350 So.2d 451 (Ala.1977).

In light of the above rule of construction and the stated purposes of the Multistate Tax Compact (especially purpose number 2), we find that “net income from business done” and “business income” are derived from the same source; i.e., “net income from business done” and “net business income,” for the purpose of apportioning federal income tax deductible under § 40-18-35 are the same. The dividend income involved in this appeal would not be business income under § 40-27-1, Code 1975. It would not be subject to federal income tax as business income. To include such dividends in the equation to determine an apportionment of federal income tax paid and deductible for the business done in Alabama would be to use a factor not used in determining the total federal income tax. The judgment of the circuit court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice. MADDOX, Justice

text:
    Ex parte State of Alabama Department of Revenue. (In re STATE of Alabama v. CHESEBROUGH-PONDS, INC.)
    82-497.
    Supreme Court of Alabama.
    Aug. 12, 1983.
    Rehearing Denied Sept. 23, 1983.

      Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and Bill Thompson, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for petitioner.
    Robert C. Walthall of Bradley, Arant, Rose & White, Birmingham, for respondent.
    E.T. Brown, Jr. and Roy J. Crawford of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for amicus curiae Coca-Cola Co.
   JONES, Justice.

This case involves an appeal by the State Revenue Department (Department) under Ala.Code 1975, § 40-2-22, from a circuit court judgment, affirmed by the Court of Civil Appeals, favorable to the taxpayer, Chesebrough-Ponds, Inc. (Cheseb-rough). The issue, one of first impression, concerns the proper calculation of the Alabama income tax deduction allowed Cheseb-rough for 1978 under Ala.Code 1975, § 40-18-35(3). This section allows a corporation to deduct on its Alabama income tax return a percentage, computed by a statutory formula (apportionment ratio), of its federal income tax liability. The percentage deduction allowed a foreign corporation is “the ratio that the net income ... of the corporation on business done within Alabama bears to its net income ... from business done both within and without the state of Alabama.” We must decide whether inter-company dividends received by Cheseb-rough from its subsidiaries in 1978 should be considered “net income from business done” as that term is used in the apportionment ratio. We hold that intercompany dividends are income from business done within the meaning of § 40-18-35(3), and, accordingly, reverse the judgment below.

The relevant facts are basically undisputed. In 1978, Chesebrough was a foreign corporation doing business in Alabama and was the parent corporation of fifteen subsidiaries doing business in the United States. Chesebrough and its fifteen subsidiaries jointly filed a consolidated federal income tax return that year. Because Alabama does not permit the filing of consolidated returns, Chesebrough filed a separate Alabama return, reflecting apportionable federal income tax of $13,130,566. In computing the deduction applicable to Alabama income, Chesebrough excluded from the apportionment ratio intercompany dividends received from its subsidiaries. This exclusion increased the percentage of total federal tax liability claimed as a deduction in Alabama from approximately two percent to seven percent, thereby reducing Cheseb-rough’s Alabama income tax liability by $31,617. The Department disallowed inter-company dividends as “income, from business done both within and without the state of Alabama.”

Chesebrough appealed the Department’s final assessment to the Montgomery County Circuit Court, contending that net income in the apportionment ratio should exclude items not taxable under federal income tax law. Because intercompany dividends were not taxable under federal income tax law, Chesebrough asserted that including such dividends as net income in apportioning the federal income tax deduction was improper and distortive. Furthermore, Chesebrough argued that, under Department Regulation 31.2, intercompany dividends are categorized as “non-business” income, and therefore are not “income from business done.”

The Department contended that the definition of net income in the apportionment ratio should be that definition specifically set out in Ala.Code 1975, § 40-18-33, rather than being controlled by federal law. In addition, the Department argued that the term “non-business income” in Regulation 31.2 was merely a term used in a uniform agreement, adopted subsequent to the enactment of § 40-18-35, which created a uniform method of computing state income tax liability of multistate corporations, and that the term pertained only to the regulation itself, not to § 40-18-35(3).

The ■ circuit court agreed with Cheseb-rough and set aside thexDepartment’s assessment. The Court of Civil Appeals unanimously affirmed the judgment, primarily upon reasons articulated in the circuit court’s well-drafted opinion, stating:

“[W]e find that ‘net income from business done’ and ‘business income’ ... for the purpose of apportioning federal income tax deductible under § 40-18-35 are the same. The dividend income ... would not be subject to federal income tax as business income. To include such dividends in the equation to determine an apportionment of federal income tax paid and deductible for the business done in Alabama would be to use a factor not used in determining the total federal income tax.”

State of Alabama v. Ghesebrough-Ponds, Inc., 441 So.2d 596 (Ala.Civ.App.1983).

The parties to this appeal, and amicus curiae, make essentially the same arguments as advanced below.

THE DECISION

State law controls the proper calculation of a state income tax deduction. Standard Oil Co. v. State, 55 Ala.App. 103, 313 So.2d 532, 538 (1975). Reliance upon federal law to determine components of income includable in Alabama’s apportionment ratio, as was had below, is inappropriate; Alabama law controls.

No definition of “net income from business done” appears in our statutes; and we have not found, or been cited to, any case dealing with the precise legal issue which confronts us. Therefore, we must determine whether intercompany dividends are “net income from business done” based on close scrutiny of related statutory provisions utilizing general rules of statutory construction. We note that, ordinarily, a statutory tax deduction or exemption is a matter of legislative grace and should be strictly construed for the taxing authority and against the taxpayer. Here, however, the federal income tax deduction is not merely legislative grace; rather, it is granted to corporations by Amendment 212 of the Alabama Constitution, which reads:

“STATE TAX ON NET INCOME OF CORPORATIONS.
“The legislature shall have power to levy and provide for the collection of taxes for state purposes on net income of corporations, from whatever source derived, for the calendar year 1963, or for any fiscal year beginning in the calendar year 1963, and each year thereafter, at a rate not exceeding five percent. However, all federal income taxes paid or accrued within the taxable year by corporations shall always be deductible in computing net income taxable under the income tax laws of this state, provided that in the case of foreign corporations the amount of federal income tax deductible shall be in proportion to income derived from sources within Alabama, to be determined in accordance with such laws as the legislature may enact.”

The following related statutes control our decision:

“§ 40-18-33. Net income of corporations defined.
“In the case of a corporation subject to the tax imposed by section 40-18-31, the term ‘net income’ means the gross income as defined in section 40-18-34, less the deductions allowed by section 40-18-35 and the net income shall be computed on the same basis as provided in section 40-18-13.
“§ 40-18-34. Gross income of corporations defined.
“In the case of a corporation subject to the tax imposed by section 40-18-31, the term ‘gross income’ means the gross income as defined in section 40-18-14.... In the case of a foreign corporation, gross income includes only the gross income from sources within this state, including the interest on bonds, notes or other interest-bearing obligations of residents, corporate or otherwise, dividends from resident corporations, and including all amounts received, although paid under a contract for the sale of goods or otherwise, representing profits on the manufacture of goods within this state and the profits on the disposition of goods within this state.
“§ 40-18-14. Gross income of individuals.
“The term ‘gross income’ as used herein:
“(1) Includes gains, profits and income derived from salaries, wages or compensation for personal services of whatever kind, or in whatever form paid ... also from interest, royalties, rents, dividends, securities or transactions of any business carried on for gain or profit and the income derived from any source whatever, including any income not exempted under this chapter and against which income there is no provision for a tax....
“(3) The term ‘gross income’ shall mean and include all of such income arising from sources within and without the state whether paid to residents or nonresidents, including interest on bonds, notes or other interest-bearing obligations of residents, corporate or otherwise, and all amounts received, although paid under a contract for the sale of goods or otherwise, representing profits in the manufacture and disposition of goods within or without the state of Alabama. It shall also mean and include interest, dividends, except stock dividends as defined herein, or other forms of income from and gains of profits realized upon the sale, exchange or other disposition of all forms of intangible personal property owned by or held anywhere within or without the state of Alabama for the account of any resident or domestic corporation.
“§ 40-18-35. Deductions allowed corporations generally.
“In computing the net income of domestic corporations doing business in this state subject to the tax imposed by section 40-18-31, there shall be allowed as deductions items described in the following numbered subdivisions of this section. In computing the net income of foreign corporations doing business in this state subject to the tax imposed by section 40-18-31, there shall be allowed as deductions the items described in the following numbered subdivisions of this section, but only if, and to the extent that, such items are referable to or arise in connection with income of such corporations arising from sources within the state of Alabama; the proper apportionment and allocation of deductions of such foreign corporations with respect to the income arising from sources within and without the state of Alabama shall be determined under the rules and regulations prescribed by the department of revenue; provided, that in the case of foreign corporations doing business partly within and partly without Alabama where income is apportioned and allocated to Alabama the expense incurred by such corporation iii connection with earning such income shall be apportioned to Alabama in such manner as shall fairly reflect the net income of the corporation attributable to its operations in Alabama;
provided, that none of the deductions allowed by subdivision (12) of this section shall be subject to any such apportionment or allocation and all thereof shall be allowed in full, any provisions thereof to the contrary notwithstanding. Subject to the limitations contained in the preceding sentence, there shall be allowed as deductions in computing the net income of corporations:
“(3) Taxes paid or accrued within the taxable year imposed (i) by the authority of the United States; (ii) by authority of any of its possessions; or (iii) by the authority of any state or territory, or any county, school district, municipality, or other taxing subdivision of any state or territory not including income tax and not including those assessed for local benefits of a kind tending to increase the value of the property assessed but excluding the income taxes levied and imposed under this title. In the case of a foreign corporation, taxes paid or accrued within the taxable year imposed by the authority of the state of Alabama or any county, school district, municipality or any other taxing subdivision of the state of Alabama excluding the income taxes levied and imposed under this title and the amount of taxes other than income taxes imposed by other authorities mentioned in this subdivision which shall be deductible by such foreign corporations shall be determined by the ratio that the gross income of the foreign corporation from sources within the state of Alabama bears to its gross income from all sources both within and without the state of Alabama; the amount of federal income tax which shall be deductible by such foreign corporation shall be determined by the ratio that the net income, as computed without any deduction for any applicable federal, state or local taxes on net income or any federal or state or local taxes measured by net income, of the corporation on business done within Alabama bears to its net income, as computed without any deduction for any applicable federal, state or local taxes on net income or any federal or state, or local taxes measured by net income, from business done both within and without the state of Alabama....”

In analyzing these statutes, we emphasize no dispute exists regarding the amount of net income from business done within Alabama, or regarding the amount of federal tax liability, which, necessarily, is a matter controlled by federal law. Our focus of inquiry is whether intercompany dividends, not part of federal net income, nevertheless are net income, under Alabama law, from business done within and without Alabama, and therefore includable in the denominator of the ratio which apportions the predetermined total deduction.

The parties dispute the significance of Department Regulation 31.2, which provides that intercompany dividends, considered “non-business” income, are to be allocated, for state income tax purposes, totally to the corporation’s state of domicile (here, New York). Chesebrough contends that because of the Department’s classification of intercompany dividends as “non-business” under this regulation, those dividends cannot be considered “from business done” as defined in § 40-18-35(3). We disagree.

In the middle 1960’s, various states attempted to establish a uniform and fair system for taxing multistate corporations. Alabama adopted the Multistate Tax Compact, § 40-27-1, et seq., in 1967, which spawned Regulation 31.2. The terms “business income” and “non-business income,” defined in Article IV of the Act, did not exist previously, and were merely a method of equitably determining the tax situs of income generated by multistate corporations. Therefore, these phrases are applicable only within the context of Regulation 31.2. Neither party contends any portior of Chesebrough’s intercompany dividends should be allocated as income produced in Alabama.

Having determined that the definition of “business income” in Regulation 31.2 is not equivalent to the definition of “from business done” in § 40-18-35(3), we now examine the relevant statutes. Net income under Alabama law is defined in § 40-18-33 as gross income defined in § 40-18-34, less the deductions allowed by § 40-18-35. Intercompany dividends are not deductible under § 40-18-35, or any other Alabama statute. Section 40-18-34 states that “gross income” for corporations means gross income defined in § 40-18-14. Section 40-18-14 states that gross income includes “gains, profits and income” derived from numerous items including “interest, royalties, rents, dividends, securities and transactions of any business carried on for gain or profit and the income derived from any source whatsoever, including any income exempted under this chapter and against which income there is no provision for a tax.” (Emphasis added.)

Thus, all income received by Cheseb-rough, unless exempt from Alabama law, constitutes gross income under § 40-18-14, whether that income is taxed in Alabama or not. Net income is determined by subtracting from gross income the deductions allowed under § 40-18-35. As stated, inter-company dividends are not deductible under § 40-18-35. Consequently, intercompany dividends received by Chesebrough constitute gross income under Alabama law and, not being deductible under § 40-18-35, also constitute net income. As part of Alabama net income, the dividends, which are from sources outside Alabama, must be included in the denominator of the apportionment ratio if from “business done.” In the present case, Chesebrough’s intercompany dividends are not includable in the numerator of the ratio as net income within Alabama simply because they are not derived “within Alabama,” although they are part of net income. If Chesebrough had been domiciled in Alabama instead of New York, then all intercompany dividends would have been allocated directly to Alabama for purposes of determining net income taxable within Alabama.

The last sentence of § 40-18-34 provides: “In the ease of a foreign corporation, gross income includes only the gross income from sources within this state.... ” This section complicates our analysis, because, on first blush, it tends to indicate that the net income of a foreign corporation is gross income, as defined in § 40-18-14, but limited only to gross income derived from sources within Alabama, as opposed to all sources, If this definition of a foreign corporation’s gross income was strictly applied to the ratio set out in § 40-18-35(3), then the denominator, net income from business both within and without Alabama, would be reduced to only net income from business within Alabama; that is, the numerator and denominator would be the same.

Every foreign corporation doing business in Alabama could deduct its entire federal tax liability, regardless of the percentage of business done in Alabama, because the apportionment ratio would be 100 percent. The legislature surely did not intend such a nonsensical result, and the only logical interpretation is to define “net income from business done both within and without Alabama” as gross income, as set out in § 40-18-14, from whatever source both within and without the state. This definition includes income received by Cheseb-rough in the form of intercompany dividends. Such dividends are not removed from the Alabama definition of net income just because they are not taxable in Alabama. Section 40-18-14 includes in gross income “all income derived from any source whatever ... and against which income there is no provision for a tax.”

Chesebrough argues that, even if inter-company dividends are part of net income under Alabama law, they are not includable in the apportionment ratio because they are not derived “from business,” as that phrase is used in the ratio. The Department maintains that the term “net income from business” includes gross income from all sources and however derived, less the deductions allowed under Alabama law. We agree with the Department.

All income earned by Chesebrough arises from some business activity. The intercompany dividends in question are paid to Chesebrough by one or more of the fifteen subsidiaries with which it files a consolidated federal return. The dividends received from the stock represent a portion of the profits of the subsidiary. Obviously, such dividend income resulting from Che-sebrough’s investments in its subsidiaries is business income. We hold that “business income,” as used in the ratio, is not limited to income from Chesebrough’s primary activity, retail sales. That term must include income from all transactions, including dividend income from investments in stock.

In Union League Club v. Johnson, 108 P.2d 487 (Cal.Dist.Ct.App.1941), “business” was deemed to mean any activity or enterprise for gain, benefit, advantage, or livelihood. In O’Neil v. United Producers and Consumer’s Co-op, 57 Ariz. 295, 113 P.2d 645 (1941), the term was defined as any activity which benefits a corporation’s organizers or members. In Helvering v. Jewel Mining Co., 126 F.2d 1011, 1015 (8th Cir.1942), the court stated that “doing business means to control and manage those activities which are pursued for ‘profit or gain.’ ”

We think investing in the stock of other corporations is a business activity, and any profit derived therefrom is “from business done,” as that phrase is used in § 40-18-35(3). The judgment appealed from is hereby reversed, and the cause is remanded to the Court of Civil Appeals for an order consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur.

MADDOX and ALMON, JJ., dissent.

MADDOX, Justice

(dissenting).

I am of the opinion that the opinion of the Court of Civil Appeals correctly interprets Alabama’s tax laws in this case; therefore, I respectfully dissent.

ALMON, J., concurs.

      . For a recent United States Supreme Court case dealing with California’s “formula apportionment” in its imposition of a corporate franchise tax geared to income, in which the Court upheld the State’s taxing scheme as against a Due Process and Commerce Clauses challenge, see Container Corporation v. Franchise Tax Board - U.S. -, 103 S.Ct. 2933, 77 L.Ed.2d 545 (1983).


text:
    STATE of Alabama v. CHESEBROUGH-PONDS, INC.
    Civ. 3414.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
   WRIGHT, Presiding Judge.

Upon remand and in accord with the direction of the Supreme Court of Alabama, 441 So.2d 598, as stated in its judgment duly entered in this case on August 12, 1983, it is the judgment of this court, 441 So.2d 596, that the judgment of the Circuit Court of Montgomery County, Alabama entered July 7,1982, be and the same is reversed and annulled. The case is remanded to that court for entry of judgment in favor of the Department of Revenue, State of Alabama.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: ADKINS, Justice.

text:
    Thomas PERRI, Appellant, v. STATE of Florida, Appellee.
    No. 57142.
    Supreme Court of Florida.
    Sept. 29, 1983.
    Rehearings Denied Dec. 28, 1983.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., Miami, for appellee.
   ADKINS, Justice.

This is an appeal from a judgment adjudging defendant guilty of first-degree murder and a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Defendant was also convicted of burglary and robbery, sentenced to consecutive terms of life imprisonment for the burglary and fifteen years’ imprisonment for the robbery.

The co-perpetrator of the crimes, Stephen Weiss, was the key state witness.

The victim, eighty-six years of age and hard of hearing, lived alone on Miami Beach. Defendant and Weiss broke into his home while the victim was asleep and ransacked the place looking for money. They found the victim asleep in a bedroom on the top floor of the house. Defendant beat the victim while he was lying in the bed and then threw the victim on the floor and kicked him in the side. Defendant grabbed a pen which was lying on the floor and tried to put it in the victim’s ear, saying “Dead men tell no tales.” Being unable to push it in, the defendant told Weiss to kick it in. Weiss did so. Defendant leaned over the body and said, “He’s dead.”

After they left the house, defendant and Weiss returned for the purpose of wiping off fingerprints. The testimony of Weiss, bolstered by circumstantial and scientific evidence, was sufficient to sustain the verdict.

A statute provides that no judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. § 924.33, Fla.Stat. (1981). This principle of law is applicable to capital cases. Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Salvatore v. State, 366 So.2d 745 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979); North v. State, 65 So.2d 77 (Fla.1952), aff'd, 357 U.S. 932, 74 S.Ct. 376, 98 L.Ed. 423 (1954).

Defendant’s attorneys on appeal raised only one question concerning the conviction in their brief, i.e., “The defendant was deprived of constitutionally effective assistance of counsel.” They recognize that the adequacy of representation of counsel could not be raised for the first time on direct appeal. State v. Barber, 301 So.2d 7 (Fla.1974). This rule is applicable to capital cases. Gibson v. State, 351 So.2d 948 (Fla.1977), cert. denied, 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978).

Defendant filed a motion to relinquish jurisdiction for the purpose of raising the ineffective assistance claim in the trial court. This motion was denied by the Court, without prejudice, of course, to the right of defendant to raise this claim after the direct appeal is completed.

We have carefully considered the brief of defendant and all of the questions raised in the brief as though they were presented as questions to be determined on appeal. We do not find that the trial court committed reversible error.

The primary question to be determined by the jury was whether the testimony of the co-perpetrator, Weiss, should be believed. His testimony was corroborated by scientific evidence and other circumstances. The jury was entitled to accept this testimony as true and it is sufficient to sustain a conviction.

Defendant contends that the trial court during the sentence proceeding incorrectly allowed two police detectives to testify as to the details of his prior convictions because their testimony was hearsay. In reference to a 1971 New Jersey conviction for armed robbery, the trial court allowed the arresting detective to testify to the details of the crime which occurred in 1967. Also, a police officer was allowed to testify as to the details of a robbery and aggravated battery occurring in 1978 for which the defendant was convicted.

In the sentence proceeding, testimony about the details of a prior felony involving the use or threat of violence to the person is properly admitted. Section 921.-141(1), Florida Statutes (1981), authorizing the proceedings to determine the sentence, says:

Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.

If the defendant is given a fair opportunity to rebut it, hearsay evidence is admissible in the penalty proceedings. As stated in Alvord v. State, 322 So.2d 533, 538-39 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976):

In the penalty proceedings certain types of evidence which may be inadmissible in a trial on guilt may be admissible and relevant to enable the jury to make an informed recommendation based on the aggravating and mitigating circumstances concerning the acts committed. In fact, one of the statutory mitigating circumstances is the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Fla.Stat. § 921.151(6)(f), F.S.A. There should not be a narrow application or interpretation of the rules of evidence in the penalty hearing, whether in regard to relevance or to any other matter except illegally seized evidence.

Contrary to defendant’s argument, the trial court is not required to request a presentencing investigation in a capital case even though the defendant does not have a prior felony conviction. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982); Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979); Thompson v. State, 328 So.2d 1 (Fla.1976).

The trial court denied defendant’s request for a psychiatric evaluation prior to the sentence proceeding. The trial court found the defense of insanity had not been raised and there was no indication or evidence that the defendant was incompetent. The court also found that the prior psychiatric evaluation had determined that the defendant was competent.

Section 921.141(6)(b), Florida Statutes (1981), states that a felony committed while defendant was under the influence of extreme mental or emotional disturbance is a mitigating factor.

Section 921.141(6)(f) states that if the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, a mitigating factor arises.

We explained these mitigating factors in State v. Dixon, 283 So.2d 1, 10 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), as follows:

Extreme mental or emotional disturbance is a second mitigating consideration, pursuant to Fla.Stat. § 921.-141(7)(b), F.S.A., which is easily interpreted as less than insanity but more than the emotions of an average man, however inflamed.
‡ ‡ ‡ ‡ ⅜ ‡
Mental disturbance which interferes with but does not obviate the defendant’s knowledge of right and wrong may also be considered as a mitigating circumstance. Fla.Stat. § 921.141(7)(f), F.S.A. Like subsection (b), this circumstance is provided to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.

After conviction and prior to the proceedings defendant requested that a psychiatric evaluation be made. The court pointed out that there was no defense of insanity, nor evidence offered which questioned the sanity or competency of the defendant. The defendant stated that he had been given a psychiatric evaluation at the bond hearing and that the evaluation was ordered by the judge. The defendant then testified that he had been in two mental institutions, Chattahoochee in Florida, and Coorsday Hospital in New Jersey. When the defendant testified to this, the psychiatric evaluation was produced. This evaluation was made February 3, 1978, and states that it was requested “because of defendant’s previous alcoholism and mental hospital treatment.”

The state says that there is no indication that the defendant is insane or incompetent so the trial court properly denied the motion for a psychiatric examination, and cites as authority Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980).

In Stone it appeared that the hospitalization occurred almost twenty years prior to the sentencing hearing. The reports furnished the trial judge in Stone stated that defendant was “mildly mentally defective” and that he had a “sociopathic personality without mental disease.” Also, Stone made a statement which was admitted into evidence and he testified at the sentence proceedings. Upholding the death sentence, we said:

From these reports, his observation of the defendant, and the evidence produced in the case, the trial judge found that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired. In other words, the trial judge found no mitigating circumstances, so the death sentence was appropriate.

378 So.2d at 774.

Perri did not testify during the guilt proceeding and did not testify during the sentence proceeding. His only testimony was given to the judge for the purpose of stating that he had been in mental institutions. This should be enough to trigger an investigation as to whether the mental condition of the defendant was less than insanity but more than the emotions of an average man, whether he suffered from a mental disturbance which interfered with, but did not obviate, his knowledge of right and wrong. A defendant may be legally answerable for his actions and legally sane, and even though he may be capable of assisting his counsel at trial, he may still deserve some mitigation of sentence because of his mental state.

A video tape was made of the defendant at the time of his arrest and was introduced into evidence. Although defendant objects to the admissibility of this video tape, it is relevant to show that he was, at that time, under the influence of some mental or emotional disturbance. Considering all the circumstances it is our opinion that psychiatric evaluation should be made prior to the imposition of sentence.

Accordingly the judgment of guilty of murder in the first degree is affirmed. Also, the judgments of guilty of burglary and robbery are affirmed. However, the cause is remanded to the trial court for the purpose of conducting another sentence hearing before a jury empaneled for that purpose. A special jury should be empaneled to consider the evidence of aggravating and mitigating circumstances and make its recommendation to the trial court for proper sentencing pursuant to section 921.141, Florida Statutes (1981). Cf. Messer v. State, 330 So.2d 137 (Fla.1976), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982).

It is so ordered.

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


author: PER CURIAM.

text:
    Robert Austin SULLIVAN, Appellant, v. STATE of Florida, Appellee. Robert Austin SULLIVAN, Petitioner, v. STATE of Florida, Respondent. Robert Austin SULLIVAN, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent.
    Nos. 64511, 64523 and 64522.
    Supreme Court of Florida.
    Nov. 21, 1983.

      See also 348 So.2d 312, 372 S.2d 938.
    Paul Morris, Miami, and Jay Topkis, Eric Freedman and Steven Gey of Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for appellant/petitioner.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., Miami, for appel-lee/respondent.
   PER CURIAM.

Robert A. Sullivan appeals the trial court’s denial of his motion to vacate filed pursuant to Florida Rule of Criminal Procedure 3.850. He has also filed a petition for writ of habeas corpus, a supplemental petition for writ of habeas corpus, a request for leave to file a petition for writ of error coram nobis, and a motion for stay. We affirm the trial court’s order of denial, deny habeas corpus relief, deny the petition for writ of error coram nobis, and deny the motion for stay.

Sullivan was convicted and sentenced to death, after a jury recommendation of death in November 1973. We affirmed his conviction and sentence, Sullivan v. State, 303 So.2d 632 (Fla.1974); and the United States Supreme Court denied certiorari, Sullivan v. Florida, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). Sullivan, in March 1977, filed a complaint attacking the executive clemency process. His requested relief was denied by the trial court; this Court, Sullivan v. Askew, 348 So.2d 312 (Fla.1977); and the United States Supreme Court, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 159 (1977). Then in 1979, he filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and alleged, among many other grounds, that he was denied effective assistance of trial counsel and that his inculpatory statement was obtained in violation of his right to counsel and was obtained through coercion. He argued that upon being advised of his constitutional rights at the scene, he and his codefendant had requested an attorney who had been with them earlier. After an evi-dentiary hearing on the issue of ineffective assistance of counsel, the trial court denied Sullivan’s motion. Sullivan appealed this denial, and while his appeal was pending in this Court, the Governor signed a death warrant for him. We affirmed the trial court’s denial and held that eleven of the issues raised by Sullivan were or could have been raised in Sullivan’s first appeal to this Court. We expressly decided that the transcript of the record below together with the record on the 3.850 appeal revealed that Sullivan’s claim of ineffective assistance of counsel was without merit. Sullivan v. State, 372 So.2d 938, 939 (Fla.1979).

Sullivan then filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Florida. The Federal District Court granted a stay of execution and referred the matter to a United States magistrate for an evidentiary hearing. In that petition, among other matters, Sullivan’s' primary issue was the alleged ineffective assistance of counsel with his major complaint being that his attorney did not investigate his alibi claim and locate the witnesses who Sullivan contended could exonerate him. He additionally contended that his statement was taken in violation of the principles established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that he was sentenced to the death penalty arbitrarily and in violation of the eighth and fourteenth amendments. A lengthy and extensive hearing was held at which all parties were present. Sullivan not only was not limited in his presentation of his claims but, in fact, was encouraged to expand the hearing to any matters which he thought would be relevant. After this hearing, the magistrate entered a lengthy detailed report recommending denial of the petition on its merits. The district court entered its final order of dismissal on June 4, 1981, denying Sullivan’s petition. It concluded that the record demonstrated that defense counsel throughout discharged their grave and solemn duty to Sullivan in a manner consistent with the highest technical and ethical standards of the profession. The district court specifically noted Sullivan’s statement that he had received effective assistance of counsel in connection with the petition then pending and that he could think of nothing that had not previously been raised in a 3.850 motion or habeas corpus petition which may bear on whether he received fair representation and a fair trial since the day he was arrested.

This denial was appealed to the United States Court of Appeals, Eleventh Circuit, and was affirmed. Sullivan v. Wainwright, 695 F.2d 1306 (11th Cir.1983). The Eleventh Circuit decided, among other things, that Sullivan received reasonably effective assistance of counsel. Relating to Sullivan’s allegation of “ineffective assistance of counsel, the court explained:

The failure of counsel, in 1974, to advance certain points on appeal which subsequently gained judicial recognition does not render counsel ineffective. Sullivan acknowledges that he was one of the first defendants to be tried under Florida’s post-Furman death penalty statute. At the time of trial and appeal in 1973-74, the law concerning capital sentencing was in a state of reformation. Sullivan does not direct us to any case decided at that time and overlooked by counsel. Counsel’s failure to divine the judicial development of Florida’s capital sentencing does not constitute ineffective assistance of counsel. Accord, Proffitt v. Wainwright, supra.

695 F.2d at 1309. We agree with this holding by the Eleventh Circuit which is entirely consistent with our prior decisions.

In October 1983, Sullivan filed a second motion for post-conviction relief which was denied by the trial court on November 4, 1983. The Governor signed a death warrant for Sullivan on November 8, 1983, and Sullivan filed an appeal from the denial of his motion for post-conviction relief on November 9,1983. He has also filed a petition and supplemental petition for writ of habe-as corpus and a request for leave to file a petition for writ of error coram nobis.

Direct Appeal of the Denial of the Rule 3.850 Motion

In his motion to vacate, Sullivan raised three grounds for relief. He argued that he was denied effective assistance of counsel because his counsel had failed to investigate, that he was denied effective assistance of counsel because his attorney labored under a conflict of interest, and that he was denied his right to counsel by the denial of his request for a lawyer.

After hearing argument and having examined all files and records in this matter, the trial court denied the motion to vacate. The court determined that the first claim was precisely the same claim that was litigated in Sullivan’s previous motion to vacate and in his petition to the federal court for a writ of habeas corpus. As to the second claim relating to ineffective assistance, the trial court found that the legal ground for relief was the same as raised in the prior motion to vacate. Finally, the trial court held as to the third ground for relief that the claim regarding the admissibility of the statement was litigated prior to trial in a motion to suppress and was resolved against him and is not cognizable in a Rule 3.850 proceeding.

We agree and affirm the denial of Sullivan’s motion to vacate. Most recently in McCrae v. State, 437 So.2d 1388 (Fla.1983), we reiterated that matters that were raised on appeal of a conviction and sentence and decided adversely to the movant and matters which could have been presented on that appeal are not cognizable under a Rule 3.850 motion. We also stated that a motion under Rule 3.850 may be summarily denied when it is based on grounds that have been raised in prior post-conviction motions and have been decided adversely to the movant on their merits. Sullivan’s claim of ineffective assistance of counsel was clearly raised in his previous motion and was decided against him on the merits. The fact that he may raise somewhat different facts to support his legal claim does not compel a different result. The Third District reached this same conclusion in Slattery v. State, 433 So.2d 615 (Fla. 3d DCA 1983). Therein Slattery sought to set aside his conviction and sentence on the basis of a claim of ineffective assistance of counsel and that his guilty plea was coerced. The district court determined that these allegations had been raised in a prior motion and had been properly denied by the trial court. The district court correctly concluded: “In his second motion the appellant has raised different facts to support his allegation of ineffective assistance of counsel which are not permitted under existing Fla.R.Crim.P. 3.850. Therefore the order denying the appellant’s motion is appropriate .... ” 433 So.2d at 616.

The trial court also properly concluded that Sullivan’s claim that he was denied his right to counsel by the denial of his request for a lawyer was litigated prior to trial in a motion to suppress, was resolved against him, and is not cognizable in a Rule 3.850 proceeding. We note that this ground was also raised previously in Sullivan’s first motion for post-conviction relief. On appeal of the denial of that motion, we held that this matter was not an appropriate ground for collateral attack. Sullivan v. State, 372 So.2d 938, 939 (Fla.1979).

Request for Leave to File a Petition for Writ of Error Coram Nobis

Sullivan’s premise for this request relates to his allegation in his motion for 3.850 relief that he was denied his right to counsel by the denial of his request for a lawyer.

Sullivan alleges that when he was arrested, he requested the police to call Thomas Murphy and that he had told the police that Murphy was an attorney. This issue of whether his rights under Miranda had been violated was raised in a motion to suppress claiming that Sullivan’s statement was not admissible, was fully litigated, and was decided against Sullivan.

He contends that he now has new evidence in the form of a recantation of testimony by codefendant McLaughlin. We have examined McLaughlin’s testimony at the suppression hearing and compared it with his affidavit, and we find that his affidavit does not directly contradict his previous testimony and is not a true recantation.

Moreover, even if it had amounted to a recantation, we would not have granted leave to file a petition for writ of error coram nobis because Sullivan has not alleged facts of such a vital nature that had they been known to the trial court, they conclusively would have prevented judgment. Riley v. State, 433 So.2d 976 (Fla.1983); Hallman v. State, 371 So.2d 482 (Fla.1979). In fact, McLaughlin’s statement would not have even prevented the trial court from denying the motion to suppress the confession. We therefore deny his request for leave to file a petition for writ of error coram nobis.

Petition for Writ of Habeas Corpus

Sullivan argues that this Court, in affirming his sentence of death upon initial appeal of his judgment and sentence, did not perform a proportionality review of his sentence. He alleges that his case was not reviewed in light of later cases to determine whether or not the punishment is too great, and he asserts that this was due to the fact that his case was the first in which this Court affirmed the death sentence under Florida’s then new capital punishment statute.

Since the inception of the “new” death penalty statute in 1972, this Court has engaged in a proportionality review of death cases to ensure rationality and consistency in the imposition of the death penalty. In State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1951, 40 L.Ed.2d 295 (1974), wherein we upheld the constitutionality of section 921.141, Florida Statutes (1973), we stated that review by this Court “guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case.” 283 So.2d at 10. See also Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

Proportionality review is a process wherein we review the case before us in light of the cases that have been previously decided. Sullivan’s case, along with other early cases decided after the reenactment of the death penalty statute in Florida, serves as the commencement point for our proportionality review. Later cases were compared with these earlier cases to ensure proportionality. By comparing the later cases with Sullivan’s case, we ensured relative proportionality between his case and the cases which were subsequently decided.

Proportionality review does not mean the reopening of every prior death case when a new one is decided to determine whether the previous decision is consistent with the later one. Rather, it means viewing the later one in light of the previous decisions to ensure- consistency of the later decision with the former ones. Otherwise, it would become necessary for this Court to continuously re-review every previous sentence. Defendants whose sentences of death have been affirmed cannot challenge their sentences again and again each time the death sentence of a later convicted murderer is reduced to life imprisonment. There would then be no end to the process and no standard for comparison. Therefore, finding no merit to this claim, we deny the petition for writ of habeas corpus.

Supplemental Petition for Writ of Habeas Corpus

Sullivan argues that he was sentenced to death in violation of his rights under the- eighth and fourteenth amendments to the United States Constitution because the death penalty is applied in a racially discriminatory manner. As was the case in Spenkellink v. Wainwright, 578 F.2d 582 (5th Cir.1976), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Hitchcock v. State, 432 So.2d 42 (Fla.1983); Thomas v. State, 421 So.2d 160 (Fla.1982); Meeks v. State, 382 So.2d 673 (Fla.1980); Adams v. State, 380 So.2d 423 (Fla.1980); and Henry v. State, 377 So.2d 692 (Fla.1979), Sullivan’s allegations of discrimination do not constitute a sufficient preliminary factual basis to state a cognizable claim. His supplemental petition is therefore denied.

Conclusion

We affirm the trial court’s denial of Sullivan’s Rule 3.850 motion, deny his request for leave to file a petition for writ of error coram nobis, deny his petition and supplemental petition for writ of habeas corpus, and deny his motion for stay.

No rehearing petition will be entertained.

It is so ordered.

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

       During the hearing, the state asked the court to ask Sullivan’s counsel:
      [A]re there any grounds, legal grounds or factual grounds, any witnesses that they want to put on, we have no objection to them orally amending their petition right now. We want to have it now. This Court has been very amenable in giving him a full and fair hearing, an opportunity to present all the factual claims. The State wants to hear them all now, so that when, and if, Mr. Sullivan decides to come back on another habeas corpus petition, he has been fully and fairly apprised of the applicable law.
      The court responded:
      I’ll tell you right now, absent some kind of evidence that could not have possibly by investigation come to mind, there is no way Rule 9 wouldn’t be invoked on another habe-as. That is quite evident.
      I said this when we first started out What I decide here is going to be final in terms of Mr. Sullivan’s appeals here in the Federal District Court of the Southern District of Florida.
      Rule 9 is going to bar anything else, absent, of course, what I said, some kind of evidence that could not possibly have come to mind, could not have possibly come forward, total surprise in other words.


author: OVERTON, Judge.

text:
    Louise T. BAILEY, et al., Petitioners, v. Fred C. HOUGH, et al., Respondents.
    No. 62944.
    Supreme Court of Florida.
    Nov. 23, 1983.

      Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for petitioners.
    Carl D. Dawson of Dawson, Galant, Nichols, Sulik, Levy & Ellis, Jacksonville, for respondents.
   OVERTON, Judge.

This is a petition to review a decision of the First District Court of Appeal reported as Hough v. Bailey, 421 So.2d 708 (Fla. 1st DCA 1982). We accepted jurisdiction in this case because, in its opinion, the First District acknowledged direct conflict with the Second District Court of Appeal’s decision in Kirk v. Baumann, 336 So.2d 125 (Fla. 2d DCA 1976). After accepting jurisdiction in this case, however, we determined that the Second District, in Wiggins v. Dojcsan, 411 So.2d 894 (Fla. 2d DCA 1982), expressly receded from its decision in Kirk. In receding from Kirk, the Second District in Wiggins adopted the view expressed by the Fourth District in Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA), petition dismissed, 402 So.2d 608 (Fla.1981), which was also relied on by the First District in its opinion in this case. Consequently, no conflict exists and there is no basis for this Court to accept jurisdiction in this cause. The petition for review is denied.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Robert B. ALFORD, Respondent.
    No. 60706.
    Supreme Court of Florida.
    Dec. 1, 1983.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Robert B. Alford, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and report of referee. Pursuant to article XI, Rule 11.06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Integration Rule of The Florida Bar, article XI, Rule 11.09(1) has been filed.

Having considered the pleadings and evidence, the referee recommended as follows:

In view of the foregoing, this referee recommends that the respondent be found guilty of professional neglect by failing to carry out an employment contract in violation of Disciplinary Rule 6-101(A)(3) which provides that a lawyer shall not neglect a legal matter entrusted to him. This referee also recommends that the Respondent be found guilty of having violated Disciplinary Rule 7— 101(A)(2) which provides that a lawyer shall not unduly fail to carry out a contract of employment entered into with a client for professional services. This referee further recommends that the respondent be found guilty of having violated Disciplinary Rule 7-101(A)(3) which provides that a lawyer shall not intentionally prejudice or damage his client during the course of the professional relationship.

The referee further recommended that respondent be suspended from the practice of law for a period of three years and not be reinstated unless the respondent submits proof of alcoholic rehabilitation.

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Robert B. Alford, is hereby suspended from the practice of law in the State of Florida for a period of three years, effective immediately, and respondent shall not be reinstated unless he establishes alcoholic rehabilitation.

Costs in the amount of $437.04 are hereby taxed against respondent.

It is so ordered.

BOYD, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. L. Danner HIERS, Respondent.
    No. 60718.
    Supreme Court of Florida.
    Dec. 1, 1983.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and John B. Root, Jr., Asst. Staff Counsel, Orlando, for complainant.
    Russell Troutman of Troutman, Parrish & Williams, Winter Park, for respondent.
   PER CURIAM.

This matter is before the Court on Conditional Guilty Plea for Consent Judgment to violations of Disciplinary Rules 6-101(A)(3) (three counts), 7-101(A)(2), 9-102(B)(3) and (4) of the Code of Professional Responsibility and article XI, Rule 11.02(4) of the Integration Rule of The Florida Bar. We approve the Petition and hereby reprimand respondent, L. Danner Hiers, for these violations. The publication of this order in Southern Reporter shall serve as respondent’s public reprimand.

Costs in the amount of $495.21 are hereby taxed against the respondent.

It is so ordered.

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